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2014-1422014-142 Resolution Accepting Modifications To Easement For War Memorial Park 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 Apri128, 2014. The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers - Barbara Gutzler - William H. Beale Vincent F. Bettina Ismay Czarniecki Michael Kuzmicz ABSENT: The following Resolution was introduced by Councilman Bettina and seconded by Councilman Kuzmicz. WHEREAS, by Resolution dated August 22, 2011, the Town Boazd authorized an acceptance of a permanent easement which would authorize the Memorial to Sergeant Mark C. Palmateer on a portion of the premises owned by Greer Nine Realty Corp. (hereinafter the "Owners") located on US Route 9 near its intersection with Old Hopewell Road; and WHEREAS, the Owners have requested further amendments to the proposed easement which are highlighted in the copy of the proposed easement attached hereto as Exhibit "1"; and WHEREAS, the legal description of the proposed easement (Schedule A) and the sketch of the design of the memorial (Schedule B) have been conceptually approved by Engineer to the Town, Robert J. Gray, P.E., however the same have yet to be delivered to the Town; and WHEREAS, the Town Boazd hereby approves the modifications to the proposed Grant of Permanent Easement to Construct a Memorial to the Victims of 911 and to Sergeant Mark C. Palmateer the First Wappinger Resident to Die in the War Against Terrorism, in the form attached hereto as Exhibit "1" with the understanding that the legal description of the proposed easement and the sketch of the design of the memorial will be attached at a later date, subject to the review and approval of the Engineer to the Town, Robert J. Gray, P.E. 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 approves and accepts the modifications to the proposed Grant of Permanent Easement to Construct a Memorial to the Victims of 911 and to Sergeant Mark C. Palmateer the First Wappinger Resident to Die in the War Against Terrorism, in the form attached hereto as Exhibit "1" with the understanding that the legal description of the proposed easement and the sketch of the design of the memorial will be approved at a later date, subject to the review and approval of the Engineer to the Town, Robert J. Gray, P.E. 3. The Town Board hereby authorizes acceptance of the revised permanent easement for the purposes of establishing the Palmateer Memorial Park located on the DCH Wappingers Falls Toyota site on US Route 9, Old Route 9, at its intersection with Old Hopewell Road, upon terms to be hereinafter negotiated. 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 4/28/2014 The Resolution is hereby~ly declared adopted. P. ISAOLONI, TOWN CLERK GRANT OF PERMANENT EASEMENT TO CONSTRUCT A MEMORIAL TO THE VICTIMS OF 911 AND TO SERGEANT MARK C. PALMATEER THE FIRST WAPPINGER RESIDENT TO DIE IN THE WAR AGAINST TERRORISM THIS INDENTURE, made the day of , 2014 between GREER NINE REALTY CORP., DCH INVESTMENTS, INC. (New York) and DCH NY MOTORS, LLC d/bla DCH WAPPINGERS FALLS TOYOTA, all New York State Business Entities, whose collective address for the purposes of this instrument is c/o DCH Wappingers Falls Toyota 1349 Route 9, Wappingers Falls, New York 12590 (hereinafter collectively referred to as "DCH") and THE TOWN OF WAPPINGER, a Municipal Subdivision with offices situate at Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590 (hereinafter referred to as the "TOWN"). WITNESSETH: WHEREAS, Greer Nine Realty Corp. (hereinafter "Greer") is the owner of a certain parcel of property located on U.S. Route 9, at its intersection with Old Hopewell Road in the Town of Wappinger, which property is more particularly described in a certain deed from William H. Greer to Greer Nine Realty Corp. dated December 28, 1990, which was recorded in the Office of the Clerk of Dutchess County on January 16, 1991 at Liber of Deeds 1883 at Page 847, which is hereinafter referred to as the "Greer Parcel"; and WHEREAS, the Greer Parcel is leased to DCH Investments, Inc. and is further sub- leased to DCH NY Motors, LLC d/b/a DCH Wappingers Falls Toyota (hereinafter collectively referred to as "DCH") which operates a car dealership thereon pursuant to written lease agreement between GREER and DCH; and WHEREAS, Greer and DCH hereby agree to grant to the TOWN a PERMANENT EASEMENT and RIGHT-OF-WAY, together with an ACCESS EASEMENT over the remaining lanais of the Greer Parcel. for the establishment and maintenance of a Memorial to the victims of 911 World Trade Center attack as well as a Memorial to Sergeant Mark C. Palmateer, United C:\UsersUFulton\AppData\Local\1~Iicrosoft\Windows\Temporary Internet Files\Content.0utlook\AX22JCY7\Grant of Easement -highlighted version.doc Last Save 4/28/20144:06:05 PM States Army, deceased, the first resident of the Town of Wappinger to die in the war on terrorism. NOW, THEREFORE, in consideration of the sum of ONE DOLLAR ($1.00), lawful money of the United States, receipt of which is hereby waived and in the further consideration of the promises set forth below, DCH hereby grants and releases unto the TOWN a PERMANENT EASEMENT AND RIGHT-OF-WAY, together with a PERMANENT ACCESS EASEMENT, for the following uses and purposes and upon the following terms and conditions: 1. RECITATIONS INCORPORATED. The recitations above set forth are incorporated in this GRANT OF PERMANENT EASEMENT as if fully set forth and adopted herein. 2. GRANT OF PERMANENT MEMORIAL EASEMENT AND RIGHT-OF- WAY. DCH grants unto the TOWN a PERMANENT EASEMENT and RIGHT-OF-WAY in, over, under and through that portion of the Greer Parcel, hereinafter described, and called the PERMANENT MEMORIAL EASEMENT, for the purposes of installing, constructing, operating, maintaining, repairing, reconstructing, replacing and inspecting a Memorial to the victims of the 911 World Trade Center terrorist attack and to Sergeant Mark C. Palmateer, United States Army, deceased, the first resident of the Town of Wappinger to die in the line of duty in the war against terrorism. This GRANT of PERMANENT MEMORIAL EASEMENT shall include the right to install utilities needed to service the Memorial. The description of the PERMANENT MEMORIAL EASEMENT AREA is more particularly described on Schedule "A" attached hereto and made part hereof. A design of the Memorial is attached hereto, made part hereof, marked and designated as Schedule "B". 3. ACCESS. This GRANT OF PERMANENT MEMORIAL EASEMENT shall include, but is not limited to the following appurtenant rights necessary to effectuate the installation, construction, operation, maintenance, repair, reconstruction, replacement and inspection of the aforementioned Memorial and related appurtenances as shown on Schedule "B": a. the right of ingress and egress by man, motor vehicle and construction equipment over the adjacent properties of DCH, utilizing existing aisles and travel ways to facilitate the maintenance, repair, use and inspection of the Memorial, as well as to permit parking and access by members of the public who wish to visit the Memorial; and b. DCH shall authorize limited use of this existing parking area for use by members of the public provided that such parking will not interfere with the on going operations of DCH. 4. USE OF PERMANENT MEMORIAL EASEMENT AREA. DCH is hereby prohibited from constructing and/or maintaining any type of permanent structure or otherwise interfering with the general use of the PERMANENT MF,MORTAL EASEMENT AREA that would be inconsistent with the intended use of the EASEMENT AREA as a Memorial to the victims of 911 and Sergeant Mark C. Palmateer. C:\UsersUFulton\AppData\I,ocal\Microsoft\Windows\Temporary Internet Files\Content.OutlookWX22JCY7\Grant of Easement -highlighted version.doc 5. RESERVATION. Notwithstanding the foregoing, DCH expressly reserves the right to place and store snow and ice in the PERMANENT MEMORIAL EASEMENT AREA during in climate weather. For safety reasons, the public will be prohibited from access to that portion of the EASEMENT AREA whenever and wherever snow and ice is placed within the EASEMENT AREA. DCH agrees that snow and ice will not be placed within seven Feet of the actual Memorial so as to prevent damage to the Memorial. 6. INSURANCE. The TOWN and/or its contractors shall provide DCH with a Certificate of Insurance, which indicates a current Commercial General Liability and Umbrella Policy is in force. ~~~ith an insurance company «~ith an A.M. Best's rating of "A'' or better. The occurrence limit must be not less than $1,fl00,000 of general liability coverage and a $2,000,00(I of umbrella coverage. DCH will be named as an additional insured on a primary, non- contributory basis. 7. INDEMNIFICATION. The TOWN shall protect, indemnify, save and hold harmless DCH and DCH'S successors and assigns against and from all claims, loss, costs, damages or expenses arising out of or from any accident or other occurrence, arising from the TOWN or its agents, servants, employees, contractors and subcontractors use of the PERMANENT MEMORIAL EASEMENT AREA for the construction, installation, operation and maintenance of the Memorial and related appurtenances within the PERMANENT MEMORIAL EASEMENT AREA, causing injury to any person or property or any act or omission of the TOWN, its agents, servants, employees, contractors and subcontractors. The TOWN shall hold DCH harmless and indemnified against and from any penalty or damage or charges imposed for any violations of any law, regulation, or rule of any governmental or municipal body having jurisdiction over the Memorial and related appurtenances, whether occasioned by the neglect of the TOWN or any of the TOWN'S agents, servants, employees, contractors or subcontractors. 8. ADDITIONAL TOWN RESPONSIBILITY. As a condition of said EASEMENT, the TOWN hereby agrees to pay for all costs associated with the maintenance of the Memorial site, including weekly lawn maintenance, landscaping, as well as maintaining the Memorial in good and proper functioning order; the TOWN shall pay for the cost of a separate electric meter for all lighting associated with the Memorial. 9. RESTORATION. All areas disturbed by the TOWN in exercise of the rights conferred herein shall be restored, as nearly as practicable, to the condition that existed prior to the disturbance. 10. DURATION. The PERMANENT MEMORIAL EASEMENT and RIGHT-OF- WAY, together with the terms, covenants and agreements herein contained shall be binding upon the parties hereto, their successors, assigns, heirs, distributees and legal representatives, and ALL COVENANTS HEREIN SHALL RUN WITH THE LAND AFFECTED HEREBY AND SHALL BE PERPETUAL IN DURATION. C:\UsersUFulton\AppDataU.ocal\Microsoft\Windows\Temporary Internet Files\Content.0utlook\AX22JCY7\Grant of Easement -highlighted version.doc IN WITNESS THEREOF, DCH and the TOWN have executed this instrument as of the date first set forth above. GREER NINE REALTY CORP. BY: CYNTHIA GREER, PRESIDENT DCH INVESTMENTS, INC. (New York) BY: DCH NY MOTORS, LLC d/b/a DCH WAPPINGF,RS FALLS TOYOTA BY: TOWN OF WAPPINGER BY: BARBARA A. GUTZLER, SUPERVISOR STATE OF NEW YORK ) ss: COUNTY OF DUTCHESS ) On the day of , 2014, before me, the undersigned, a Notary Public in and for said State, personally appeared CYNTHIA GREER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public C:\UsersUFulton\.4ppData\Local\Microsoft\Windows\Temporary Internet Files\Content.0utlook\AX22JCY7\Grant of Easement -highlighted version.doc STATE OF NEW JERSEY ) ss: COUNTY OF MIDDLESEX ) On the day of , 2014, 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/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 , 2014, 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/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 , 2014, before me, the undersigned, a Notary Public in and for said State, personally appeared BARBARA A. GUTZLER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public Record and Return to: ALBERT P. ROBERTS, ESQ. STENGER, ROBERTS, DAVIS & DIAMOND, LLP 1136 Route 9 Wappingers Falls, New York 12590 C:\UsersUFulton\AppData\I,ocal\Microsoft\Windows\Temporary Internet Files\Content.0utlook\AX22JCY7\Grant of Easement -highlighted version.doc Revised 42314_____________ __________:-- Formatted: Font:lOpt GRANT OF PERMANENT EASEMENT TO CONSTRUCT A MEMORIAL TO THE VICTIMS OF 911 AND TO SERGEANT MARK C. PALMATEER THE FIRST WAPPINGER RESIDENT TO DIE IN THE WAR AGAINST TERRORISM THIS INDENTURE, made the day of December 2013 between GREER NINE REALTY CORP., DCH INVESTMENTS, INC. (New York) and DCH NY MOTORS, LLC d/b/a DCH WAPPINGERS FALLS TOYOTA, all New York State Business Entities, whose collective address for the purposes of this instrument is c/o DCH Wappingers Falls Toyota 1349 Route 9, Wappingers Falls, New York 12590 (hereinafter collectively referred to as "DCH") and THE TOWN OF WAPPINGER, a Municipal Subdivision with offices situate at Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590 (hereinafter referred to as the "TOWN") WITNESSETH: WHEREAS, Greer Nine Realty Corp. (hereinafter "Greer") is the owner of a certain parcel of property located on U.S. Route 9, at its intersection with Old Hopewell Road in the Town of Wappinger, which property is more particularly described in a certain deed from William H. Greer to Greer Nine Realty Corp. dated December 28, 1990, which was recorded in the Office of the Clerk of Dutchess County on January 16, 1991 at Liber of Deeds 1883 at Page 847, which is hereinafter referred to as the "Greer Parcel"; and WHEREAS, the Greer Parcel is leased to DCH Investments, Inc. and is further sub- leased to DCH NY Motors, LLC d/b/a DCH Wappingers Falls Toyota (hereinafter collectively referred to as "DCH") which operates a car dealership thereon pursuant to written lease agreement between GREER and DCH; and WHEREAS, Greer and DCH hereby agree to grant to the TOWN a PERMANENT EASEMENT a n rrLT-r n~ ~:~ ~ v +,...,,+~,e« ..,:+ti ,... n ~r~~cc ~ n c~~,r~rrT ~,lo« +w.. «e .. r~~vi-rl-rn---rrr: ~ , cv6ccnc `tea ' a F+'- ~'«°~~« n~°~~' r • for the establishment and maintenance of a Memorial to the victims of 911 World Trade Center attack as well as a Memorial to Sergeant Mark C. Palmateer, United States Army, deceased, the first resident of the Town of Wappinger to die in the war on terrorism. NOW, THEREFORE, in consideration of the sum of ONE DOLLAR ($1.00), lawful money of the United States, receipt of which is hereby waived and in the further consideration of the promises set forth below, DCH hereby grants and releases unto the TOWN a PERMANENT EASEMENT. for the following uses and purposes and upon the following terms and conditions: 1. RECITATIONS INCORPORATED. The recitations above set forth are incorporated in this GRANT OF PERMANENT EASEMENT as if fully set forth and adopted herein. 2. GRANT OF PERMANENT MEMORIAL EASEMENT AND RIGHT-OF- WAY. DCH grants unto the TOWN a PERMANENT EASEMENT and RIGHT-OF-WAY in, over, under and through that portion of the Greer Parcel, hereinafter described, and called the PERMANENT MEMORIAL EASEMENT, for the purposes of installing, constructing, operating, maintaining, repairing, reconstructing, replacing and inspecting a Memorial to the victims of the 911 World Trade Center terrorist attack and to Sergeant Mark C. Palmateer, United States Army, deceased, the first resident of the Town of Wappinger to die in the line of duty in the war against terrorism. This GRANT of PERMANENT MEMORIAL EASEMENT shall include the right to install utilities needed to service the Memorial. The description of the PERMANENT MEMORIAL EASEMENT AREA is more particularly described on Schedule "A" attached hereto and made part hereof. A design of the Memorial is attached hereto, made part hereof, marked and designated as Schedule "B". 3. ACCESS. This GRANT OF PERMANENT MEMORIAL EASEMENT shall include, but is not limited to the following appurtenant rights necessary to effectuate the installation, construction, operation, maintenance, repair, reconstruction, replacement and inspection of the aforementioned Memorial and related appurtenances as shown on Schedule "B": a. the right of ingress and egress by man, motor vehicle and construction equipment over the adjacent properties of DCH, utilizing existing aisles and travel ways to facilitate the maintenance, repair, use and inspection of the Memorial, .. b related appurtenances shall not include parking as the Town shall make provision for public parking_on the town road adjacent the the memorial. - Formatted: Bullets and Numbering .-" - - Formatted: Bullets and Numbering 4. USE OF PERMANENT MEMORIAL EASEMENT AREA. DCH is hereby prohibited from constructing and/or maintaining any type of permanent structure or otherwise interfering with the general use of the PERMANENT MEMORIAL EASEMENT AREA that would be inconsistent with the intended use of the EASEMENT AREA as a Memorial to the victims of 911 and Sergeant Mark C. Palmateer. 5. RESERVATION. Notwithstanding the foregoing, DCH expressly reserves the right to place and store snow and ice in the PERMANENT MEMORIAL EASEMENT AREA during in climate weather. For safety reasons, the public will be prohibited from access to that portion of the EASEMENT AREA whenever and wherever snow and ice is placed within the EASEMENT AREA. DCH agrees that snow and ice will not be placed within seven feet of the actual Memorial so as to prevent damage to the Memorial. 6. INSURANCE. The TOWN and/or its contractors shall provide DCH with a Certificate of Insurance, which indicates a current Commercial General Liability and Umbrella Policy is in force, with an insurance company with an A.M. Best's rating of "A" or better. The occurrence limit must be not less than $1,000,000 of general liability coverage and a $2,000,000 of umbrella coverage. DCH will be named as an additional insured on a primary, non- contributory basis. DCH may every five years require an increase in the amount of the insurance to assure that the value of the insurance coverage remains constant in terms of increases in the Consumer Price Index for the New York Metropolitan Area or equivalent index. 7. INDEMNIFICATION. The TOWN shall protect, indemnify, save and hold harmless DCH and DCH'S successors and assigns against and from all claims, loss, costs, damages or expenses arising out of or from any accident or other occurrence, arising from the TOWN or its agents, servants, employees, contractors and subcontractors use of the PERMANENT MEMORIAL EASEMENT AREA for the construction, installation, operation and maintenance of the Memorial and related appurtenances within the PERMANENT MEMORIAL EASEMENT AREA, causing injury to any person or property or any act or omission of the TOWN, its agents, servants, employees, contractors and subcontractors. The TOWN shall hold DCH harmless and indemnified against and from any penalty or damage or charges imposed for any violations of any law, regulation, or rule of any governmental or municipal body having jurisdiction over the Memorial and related appurtenances, whether occasioned by the neglect of the TOWN or any ofthe TOWN'S agents, servants, employees, contractors or subcontractors. 8. ADDITIONAL TOWN RESPONSIBILITY. As a condition of said EASEMENT, the TOWN hereby agrees to pay for all costs associated with the maintenance of the Memorial site, including weekly lawn maintenance, landscaping, as well as maintaining the Memorial in good and proper functioning order; the TOWN shall pay for the cost of a separate electric meter for all lighting associated with the Memorial. In the event the TOWN fails to undertake maintenance, and upon prior written notice to the Town of the failure to undertake such maintenance, DCH, in addition to any other remedy it may have, may undertake the same and recover the costs from the town. 9. RESTORATION. All areas disturbed by the TOWN in exercise of the rights conferred herein shall be restored, as nearly as practicable, to the condition that existed prior to the disturbance. 10. DURATION. The PERMANENT MEMORIAL EASEMENT and RIGHT-OF- WAY, together with the terms, covenants and agreements herein contained shall be binding upon the parties hereto, their successors, assigns, heirs, distributees and legal representatives, and ALL COVENANTS HEREIN SHALL RUN WITH THE LAND AFFECTED HEREBY AND SHALL BE PERPETUAL IN DURATION UNLESS OTHERWISE PROVIDED BY THIS AGREEMENT.. ,. Formatted: No underline 11. PTO DIMUITION OF RIGHTSC _ The rights conferred upon the TOWN_by_this~ ~ _ Formatted: Font: Not void, No underline easement shall not impair not diminish the rights of the grantor under any zoning law of other - -- local law. DCH shall be entitled to the same rights it ~woulc~ have had if no easement had been_ ~ ~ - Formatteac Font: Not soid_ granted as to development of its property, including but not limited to the inclusion of the ~ ' Formatted: Font: Not void, No underline easement area in computation of permitted development density, retention of set back rights, etc. 12. TERMINATION OF EASEMENT. Notwithstanding the permanent grant created by this easement, if the memorial to be located on the easement is removed, discontinued nor maintained by the TOWN for a period of a year, the easement shall be deemed abandoned and Grantee shall have no further rights. 13. ASSIGNMENT. No rights created by this easement may be assigned. IN WITNESS THEREOF, DCH and the TOWN have executed this instrument as of the date first set forth above. GREEK NINE REALTY CORP. BY: CYNTHIA GREEK, PRESIDENT DCH INVESTMENTS, INC. (New York) BY: DCH NY MOTORS,. LLC d/b/a DCH WAPPINGERS FALLS TOYOTA BY: TOWN OF WAPPINGER BY: BARBARA A. GUTZLER, SUPERVISOR STATE OF NEW YORK ) ss: COUNTY OF DUTCHESS ) On the day of , 20143, before me, the undersigned, a Notary Public in and for said State, personally appeared CYNTHIA GREER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public STATE OF NEW JERSEY ) ss: COUNTY OF MIDDLESEX ) On the day of , 2014 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/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 , 20143, 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/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 , 20143, before me, the undersigned, a Notary Public in and for said State, personally appeared BARBARA A. GUTZLER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public Record and Return to: ALBERT P. ROBERTS, ESQ. VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP 1136 Route 9 Wappingers Falls, New York 12590 Revised 42314 _______________________________ Formatted: Font:lOpt GRANT OF PERMANENT EASEMENT TO CONSTRUCT A MEMORIAL TO THE VICTIMS OF 911 AND TO SERGEANT MARK C. PALMATEER THE FIRST WAPPINGER RESIDENT TO DIE IN THE WAR AGAINST TERRORISM THIS INDENTURE, made the day of December 2013=between GREER NINE REALTY CORP., DCH INVESTMENTS, INC. (New York) and DCH NY MOTORS, LLC d/b/a DCH WAPPINGERS FALLS TOYOTA, all New York State Business Entities, whose collective address for the purposes of this instrument is c/o DCH Wappingers Falls Toyota 1349 Route 9, Wappingers Falls, New York 12590 (hereinafter collectively referred to as "DCH") and THE TOWN OF WAPPINGER, a Municipal Subdivision with offices situate at Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590 (hereinafter referred to as the "TOWN"). WITNESSETH: WHEREAS, Greer Nine Realty Corp. (hereinafter "Greer") is the owner of a certain parcel of property located on U.S. Route 9, at its intersection with Old Hopewell Road in the Town of Wappinger, which property. is more particularly described in a certain deed from William H. Greer to Greer Nine Realty Corp. dated December 28, 1990, which was recorded in the Office of the Clerk of Dutchess County on January 16, 1991 at Liber of Deeds 1883 at Page 847, which is hereinafter referred to as the "Greer Parcel"; and WHEREAS, the Greer Parcel is leased to DCH Investments, Inc. and is further sub- leased to DCH NY Motors, LLC d/b/a DCH Wappingers Falls Toyota (hereinafter collectively referred to as "DCH") which operates a car dealership thereon pursuant to written lease agreement between GREER and DCH; and WHEREAS, Greer and DCH hereby agree to grant to the TOWN a PERMANENT EASEMENT , ~ a F.,. ~~°c: Dw ~°'. ~ -for the establishment and maintenance of a Memorial to the victims of 911 World Trade Center attack as well as a Memorial to Sergeant Mark C. Palmateer, United States Army, deceased, the first resident of the Town of Wappinger to die in the war on terrorism. NOW, THEREFORE, in consideration of the sum of ONE DOLLAR ($1.00), lawful money of the United States, receipt of which is hereby waived and in the further consideration of the promises set forth below, DCH hereby grants and releases unto the TOWN a PERMANENT EASEMENT for the following uses and purposes and upon the following terms and conditions: 1. RECITATIONS INCORPORATED. The recitations above set forth are incorporated in this GRANT OF PERMANENT EASEMENT as if fully set forth and adopted herein. 2. GRANT OF PERMANENT MEMORIAL EASEMENT AND RIGHT-OF- WAY. DCH grants unto the TOWN a PERMANENT EASEMENT and RIGHT-OF-WAY in, over, under and through that portion of the Greer Parcel, hereinafter described, and called the PERMANENT MEMORIAL EASEMENT, for the purposes of installing, constructing, operating, maintaining, repairing, reconstructing, replacing and inspecting a Memorial to the victims of the 911 World Trade Center terrorist attack and to Sergeant Mark C. Palmateer, United States Army, deceased, the first resident of the Town of Wappinger to die in the line of duty in the war against terrorism. This GRANT of PERMANENT MEMORIAL EASEMENT shall include the right to install utilities needed to service the Memorial. The description of the PERMANENT MEMORIAL EASEMENT AREA is more particularly described on Schedule "A" attached hereto and made part hereof. A design of the Memorial is attached hereto, made part hereof, marked and designated as Schedule "B". 3. ACCESS. This GRANT OF PERMANENT MEMORIAL EASEMENT shall include, but is not limited to the following appurtenant rights necessary to effectuate the installation, construction, operation, maintenance, repair, reconstruction, replacement and inspection of the aforementioned Memorial and related appurtenances as shown on Schedule "B": a. the right of ingress and egress by man, motor vehicle and construction equipment over the adjacent properties of DCH, utilizing existing aisles and travel ways to facilitate the maintenance, repair, use and inspection of the Memorial, .. b related appurtenances shall not include harking as the Town shall make provision for public parking on the to~rm road adjacent the the memorial. Formatted: Bullets and Numbering - - Formatted: Bullets and Numbering 4. USE OF PERMANENT MEMORIAL EASEMENT AREA. DCH is hereby prohibited from constructing and/or maintaining any type of permanent structure or otherwise interfering with the general use of the PERMANENT MEMORIAL EASEMENT AREA that would be inconsistent with the intended use of the EASEMENT AREA as a Memorial to the victims of 911 and Sergeant Mark C. Palmateer. 5. RESERVATION. Notwithstanding the foregoing, DCH expressly reserves the right to place and store snow and ice in the PERMANENT MEMORIAL EASEMENT AREA during in climate weather. For safety reasons, the public will be prohibited from access to that portion of the EASEMENT AREA whenever and wherever snow and ice is placed within the EASEMENT AREA. DCH agrees that snow and ice will not be placed within seven feet of the actual Memorial so as to prevent damage to the Memorial. 6. INSURANCE. The TOWN and/or its contractors shall provide DCH with a Certificate of Insurance, which indicates a current Commercial General Liability and Umbrella Policy is in force, with an insurance company with an A.M. Best's rating of "A" or better. The occurrence limit must be not less than $1,000,000 of general liability coverage and a $2,000,000 of umbrella coverage. DCH will be named as an additional insured on a primary, non- contributory basis. DCH may every five years require an increase in the amount of the insurance to assure that the value of the insurance coverage remains constant in terms of increases in the Consumer Price Index for the New York Metropolitan Area or equivalent index. 7. INDEMNIFICATION. The TOWN shall protect, indemnify, save and hold harmless DCH and DCH'S successors and assigns against and from all claims, loss, costs, damages or expenses arising out of or from any accident or other occurrence, arising from the TOWN or its agents, servants, employees, contractors and subcontractors use of the PERMANENT MEMORIAL EASEMENT AREA for the construction, installation, operation and maintenance of the Memorial and related appurtenances within the PERMANENT MEMORIAL EASEMENT AREA, causing injury to any person or property or any act or omission of the TOWN, its agents, servants, employees, contractors and subcontractors. The TOWN shall hold DCH harmless and indemnified against and from any penalty or damage or charges imposed for any violations of any law, regulation, or rule of any governmental or municipal body having jurisdiction over the Memorial and related appurtenances, whether occasioned by the neglect of the TOWN or any of the TOWN'S agents, servants, employees, contractors or subcontractors. 8. ADDITIONAL TOWN RESPONSIBILITY. As a condition of said EASEMENT, the TOWN hereby agrees to pay for all costs associated with the maintenance of the Memorial site, including weekly lawn maintenance, landscaping, as well as maintaining the Memorial in good and proper functioning order; the TOWN shall pay for the cost of a separate electric meter for all lighting associated with the Memorial. In the event the TOWN fails to undertake maintenance, and upon prior written notice to the Town of the failure to undertake such maintenance, DCH, in addition to any other remedy it may have, may undertake the same and recover the costs from the town. 9. RESTORATION. All areas disturbed by the TOWN in exercise of the rights conferred herein shall be restored, as nearly as practicable, to the condition that existed prior to the disturbance. 10. DURATION. The PERMANENT MEMORIAL EASEMENT and RIGHT-OF- WAY, together with the terms, covenants and agreements herein contained shall be binding upon the parties hereto, their successors, assigns, heirs, distributees and legal representatives, and ALL COVENANTS HEREIN SHALL RUN WITH THE LAND AFFECTED HEREBY AND SHALL BE PERPETUAL IN DURATION UNLESS OTHERWISE PROVIDED BY THIS AGREEMENT.. _, Formatted: No underline 11. X10 DIMUITION OF RIGHTS` _ The rights conferred upon the TOWN_b}~_this~- ~_ Formatted: Font: Not Bold, No underline easement shall not impair not diminish the rights of the grantor under any zoning law of other local law. DCH shall be entitled to the same rights it~woulc~have had if no easement_ had been; ~ - Formatted: Font: Not Boid granted as to development of its property, including but not limited to the inclusion of the ~ ' Formatted: Font: Not Bold, No underline easement area in computation of permitted development density, retention of set back rights, eta 12. TERMINATION OF EASEMENT. Notwithstanding the permanent grant created by this easement, if the memorial to be located on the easement is removed, discontinued nor maintained by the TOWN for a period of a year, the easement shall be deemed abandoned and Grantee shall have no further rights. 13. ASSIGNMENT. No rights created by this easement may be assigned. IN WITNESS THEREOF, DCH and the TOWN have executed this instrument as of the date first set forth above. GREEK NINE REALTY CORP. BY: CYNTHIA GREEK, PRESIDENT DCH INVESTMENTS, INC. (New York) BY: DCH NY MOTORS, LLC d/b/a DCH WAPPINGERS FALLS TOYOTA BY: TOWN OF WAPPINGER BY: BARBARA A. GUTZLER, SUPERVISOR STATE OF NEW YORK ) ss: COUNTY OF DUTCHESS ) On the day of , 20143, before me, the undersigned, a Notary Public in and for said State, personally appeared CYNTHIA GREER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public STATE OF NEW JERSEY ) ss: COUNTY OF MIDDLESEX ) On the day of , 2014 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/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 , 20143, 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/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 , 20143, before me, the undersigned, a Notary Public in and for said State, personally appeared BARBARA A. GUTZLER 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, or the person upon behalf of which the individual acted, executed the instrument. Notary Public Record and Return to: ALBERT P. ROBERTS, ESQ. VERGILIS, STENGER, ROBERTS, DAMS & DIAMOND, LLP 1136 Route 9 Wappingers Falls, New York 12590