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2010-1172010-117 Resolution Authorizing Acceptance of a Conservation Easement in Connection with the DCH Auto Group Service Center and Showroom Site Development Plan, Special Use Permit and Wetlands Permit Approvals 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 March 10, 2010. The meeting was called to order by Christopher Colsey, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers ABSENT: Christopher J. Colsey William H. Beale Vincent F. Bettina (arrived at 7:20 PM) Ismay Czarniecki Joseph P. Paoloni (arrived at 7:37 PM) The following Resolution was introduced by Councilman Beale and seconded by Councilwoman Czarniecki. WHEREAS, DCH Investments, Inc., Greer Nine Realty Group and Schunzel, Inc. (hereinafter the "Applicants") are the owners in fee of real property located in the Town of Wappinger, Dutchess County, State of New York, and more particularly described as four parcels of land located along the west side of Old Route 9 and along Route 9 and identified as tax lots 6157-02-558657, 6157-02-553706, 6157-02-585606 and 6157-02-589645; and WHEREAS, the Applicants have received Site Development Plan, Special Use Permit and Wetlands Permit Approvals from the Town of Wappinger Planning Board, by Resolution dated March 16, 2009; and WHEREAS, one of the conditions of the Resolution of Approval is that the Applicants are required to grant to the Town a Conservation Easement for the protection of open space wetlands; and WHEREAS, the Applicants desire to declare, create and convey to the Town a Conservation Easement placing certain limitations and affirmative obligations on the protected property for the protection of open space wetlands in order that the protected property shall remain substantially in its natural condition, in perpetuity; and WHEREAS, the Town is a "Public Body" within the meaning of Article 49, Title 3 of the Environmental Conservation Law and is qualified to hold a Conservation Easement under Article 49, Title 3; and WHEREAS, both the Applicants and the Town desire to preserve the character of the protected property in perpetuity by entering into a Conservation Easement pursuant to the provisions of Article 49, Title 3 of the Conservation Law. 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 it is in the best interest of the residents of the Town of Wappinger to preserve the open space wetlands condition of the property by entering into a Conservation Easement pursuant to Article 49, Title 3 of the Conservation Law. 3. The Town Supervisor, Christopher J. Colsey, is hereby authorized to execute the Conservation Easement in substantially the same form as attached hereto. 4. The Town Supervisor, Christopher J. Colsey, and the Attorney to the Town, Albert P. Roberts, are further authorized and directed to undertake such acts as are necessary to implement the provisions of this Resolution, to record the Conservation Easement in the Dutchess County Clerk's Office and to execute any and all documents necessary for such recording. The foregoing was put to a vote which resulted as follows: CHRISTOPHER COLSEY, SUPERVISOR Voting: AYE WILLIAM H. BEALE, COUNCILMAN Voting: AYE VINCENT F. BETTINA, COUNCILMAN Voting: AYE ISMAY CZARNIECKI, COUNCILWOMAN Voting: AYE JOSEPH P. PAOLONI, COUNCILMAN Voting: AYE Dated: Wappingers Falls, New York 3/10/2010 The Resolution is hereby duly declared adopted. HN C. MASTERSON, TOWN CLERK CONSERVATION EASEMENT THIS DECLARATION OF CONSERVATION EASEMENT, is made as of the DCH Investments Inc. (New York) _ day of February, 2010 (the "Grantor"), a New York Company with offices at 955 Route 9N, South Amboy, New Jersey 08879, for the benefit of the Town of Wappingers (the "Holder"), a New York municipal corporation having its office at 20 Middlebush Road, Wappingers Falls, New York. WHEREAS, Grantor is the owner in fee simple of parcels of real property located in the Town of Wappingers, County of Dutchess, and State of New York, which parcels are more fully described in Deed Document 1550 for 2005 of the Dutchess County Clerk, and WHEREAS, pursuant to the condition of approval (the Permit) by the Town of Planning Board (the Planning Board), Grantor is required to provide a conservation easement encumbering the Protected Property; and WHEREAS, Grantor desires to declare, create and convey to the Holder a Conservation Easement placing certain limitations and affirmative obligations on the Protected Property for the protection of open space wetlands, scenic, resource, environmental, and other values, and in order that the Protected Property shall remain substantially in its natural condition, in perpetuity; and WHEREAS, the purposes of this Conservation Easement include, without limitation, ensuring the availability of real property for preservation of the open space wetlands within the Protected Property and ensuring that future activities in the adjacent areas of the Protected Property will be undertaken in a manner that does not undermine nor impair the condition of the protected open space wetlands; and WHEREAS, the term "natural condition" shall mean the existing condition of the Protected Property, subject thereafter to natural succcessional processes. The natural condition of the Protected Property shall be evidenced by photographs of the site taken contemporaneously with the delivery of this easement, which photographs have also been delivered to the Holder. NOW, THEREFORE, for the foregoing consideration, and in further consideration of the restrictions, rights, and agreements herein, Grantor hereby creates, gives, grants, bargains and conveys to the Holder a perpetual easement in, to, over and across, the Protected Property for the purposes of preservation, protection, maintenance and conservation of the wetlands within the Protected Property. A. RESTRICTIONS These Restrictions on the Protected Property shall run with the Protected Property in perpetuity, and be binding on Grantor and its respective successors, assigns, lessees, or other occupiers and users. These Restrictions are subject to Grantor's Reserved Rights and the actions permitted by the Permit, which follow. 1. General. There shall be no future filling, flooding, excavating, mining or drilling; no removal of natural materials; no dumping of materials; and, no alteration of the topography of the Protected Property, excepting that necessary for permitted utility lines, which would materially affect the Protected Property in any manner, and except as authorized by the Planning Board of the Town of Wappinger. 2. Waters and Wetlands. In addition to the general restrictions above, there shall be no draining, dredging, excavation, damming or impounding; no changing the grade or elevation, impairing the flow or circulation of waters, by fill or otherwise, reducing the reach of waters; and, no other discharges or activity requiring a permit under applicable clean water pollution control laws and regulations, as amended, except as authorized by the Permit and current New York State Department of Environmental Conservation permits and any amendments thereof. 3. TreesNegetation. There shall be no clearing, burning, plowing, tilling, cultivating, cutting or destroying of trees, soil or vegetation, except with the written permission of the Town of Wappinger, expressly for the alteration or removal of trees or tree limbs to eliminate danger to health and safety; or to reduce a threat of infestation posed by diseased vegetation; or to control invasive non-native plant species that endanger the health of native species, except as authorized by the Permit or expressly authorized in Grantor's Reserved Rights as set forth below; there shall be no planting or introduction of non-native or exotic species of trees or vegetation. 4. Uses. No agricultural, industrial, or commercial activity shall be undertaken or allowed on the Protected Property. 5. Structures. There shall be no construction, erection, or placement of buildings, billboards, or any other structures, except drainage structures on the Protected Property. 6. New Roads. There shall be no construction of new roads, trails or walkways on the Protected Property without the prior written approval of the Holder. 7. Utilities. There shall be no construction or placement of utilities or related facilities other than the facilities and water lines shown on the approved plans reviewed by the Planning Board on the Protected Property except as provided by the Permit. Other utilities may be approved by the Holder. 2 8. Pest Control. There shall be no application of pesticides or biological controls, including for problem vegetation, on the Protected Property without prior written approval of the Holder, except as authorized by the Permit. 9. Motor Vehicles. Use of any motorized vehicle or motorized equipment anywhere on the Protected Property is permitted to access other portions of the parcel. 10. Dumping. Storage or disposal of garbage, trash, debris, abandoned equipment or accumulation of machinery or other waste materials, including accumulated vegetative debris such as grass clippings, leaves, yard waste or other material collected and deposited from areas outside the conversation easement area is prohibited. 11. Storage of Vehicles. Storage of vehicles or use of off-road vehicles including, but not limited to, snowmobiles, dune buggies, all -terrain vehicles and motorcycles is prohibited. 12. Other Prohibitions. Any other use of, or activity on, the Protected Property which is or may become inconsistent with the Permit approval and the purposes of this grant, the preservation of the Protected Property substantially in its natural condition, or the protection of its environmental systems, is prohibited. 13. Limitation of Restrictions. The foregoing Restrictions shall apply only to the Protected Property, and to no other part or portion of the Permitted Property unless expressly stated in this Conservation Easement. B. GRANTOR'S RESERVED RIGHTS AND MITIGATION PLAN 1. Reserved Rights. Grantor reserves the right to engage in all acts or uses not ;, prohibited by the Restrictions, and which are not inconsistent with the conservation purposes of this grant, the preservation of the Protected Property substantially in its natural condition, and the protection of its environmental systems, and which do not interfere with Grantor's obligations under the Permit. Included in the Reserved Rights of the Grantor are the rights of access to all utility lines and facilities for which Grantor has a right of continuing maintenance within the Protected Property C. GENERAL PROVISIONS The following General Provisions shall be binding upon, and inure to the benefit of, the Grantor, the Holder, and the heirs, successors, grantees, transferees, administrators, assigns, lessees, licensees and agents of each: 1. Rights of Access and Entry. The Holder shall have the right to enter and go upon the Protected Property on any business day upon 24 hour business day advance mtice for purposes of inspection and to take actions necessary to verify compliance with the Restrictions. Holder shall also have the rights of visual access and view, and to enter and go upon the Protected Property for purposes of making observations and studies, and taking samples, in such a manner as will not disturb the quiet enjoyment of the Protected Property by Grantor. Such access shall be at the sole risk of the parry undertaking such access. No right of access or entry by the general public to any portion of the Protected Property is conveyed by this Conservation Easement. . Absent the same, access shall be with the assistance of security personnel of Grantor. 2. Enforcement. Grantor acknowledges and agrees that Holder's remedies at law for any violation of this Conservation Easement are inadequate. In the event of a breach of the Restrictions by Grantor, the Holder must notify the Grantor in writing of the breach. The Grantor shall have thirty (30) days after receipt of such notice to undertake actions that are reasonably calculated to correct the conditions constituting the breach. If the Grantor fails to commence such corrective action within thirty (30) days, or fails to complete the necessary corrective action, the Holder may undertake such actions, including legal proceedings, as are necessary to effect such corrective action. Among other relief, the Holder shall be entitled to a complete restoration for any breach of the Restrictions. Breaches of General Provisions of this Conservation Easement shall be actionable without notice. The costs of a breach, correction or restoration, including reasonable Holder expenses, consultant expenses, court costs and attorneys' fees, as approved by a court in such proceeding, shall be paid by the Grantor, or by another party if the Grantor establishes that such other party is responsible for the breach. Enforcement shall be at the discretion of the Holder, and no omission or delay in acting shall constitute a waiver of any enforcement right. These enforcement rights are in addition to, and shall not limit, enforcement rights available under other provisions of law or equity, or under any applicable permit or certification. 3. Events Beyond Grantor's Control. Nothing herein shall be construed to authorize the Holder to institute any proceedings against Grantor for any changes to the Protected Property caused by acts of God or circumstances beyond the Grantor's control such as earthquake, fire, flood, storm, war, civil disturbance, strike or similar causes. 4. Obligations of Ownership. Grantor is responsible for any real estate taxes, assessments, fees, or charges levied upon the Protected Property. Any liens, mortgages or other encumbrances shall be subject to the terms of this Conservation Easement.. Holder shall not be responsible for any costs or liability of any kind related to the ownership, operation, insurance, upkeep, or maintenance of the Protected Property, except as expressly provided herein. Nothing herein shall relieve the Grantor of the obligation to comply with federal, state or local laws, regulations and permits which may apply to the exercise of Grantor's Reserved Rights. . 5. Recording. The Grantor shall have this Conservation Easement duly recorded and indexed as such in the Office of the County Clerk, Dutchess County, New York, as. described in ECL Section 49-0305.4. Upon recording, the Grantor shall forward a copy of this Conservation Easement to the New York Department of Environmental Conservation, as described in ECL Section 49-0305.4. The Grantor's recording and transmission to the Department of Environmental Conservation shall take place prior to Grantor's commencing work as authorized by the Permit. 4 6. Extinguishment. In the event that changed conditions render impossible the continued use of the Protected Property for the conservation purposes, this Conservation Easement may only be extinguished, in whole or in part, by judicial proceeding under authority of ECL Section 49-0305. 7. Eminent Domain. Whenever all or part of the Protected Property is taken in the exercise of eminent domain so as to substantially abrogate the Restrictions imposed by this Conservation Easement, the Grantor and Holder shall join in appropriate actions at the time of such taking to recover the full value of the taking, and all incidental and direct damages due to the taking. 8. Notification. Any notice, request for approval, or other communication required under this Conservation Agreement shall be sent by registered or certified mail, postage prepaid, to the following addresses (or such address as may be hereafter specified by notice pursuant to this paragraph): To Grantor: DCH Investments Inc. (New York) DCH Auto Group 955 Route 9 North South Amboy, New Jersey 08879 With copy: General Manager DCH Wappingers Toyota 1349 Route 9 Wappingers Falls, NY 12590 To Holder: Town Clerk Town of Wappinger 20 Middlebush Road Wappingers Falls, New York 12590 9. Assignment. This Conservation Easement is transferable, but only to a qualified holder under ECL Section 49-0305.3. As a condition of such transfer, the transferee shall agree to all of the restrictions, rights, and provisions herein, and to continue to carry out the purposes of this Conservation Easement. Assignments shall be accomplished by amendment of this Conservation Easement under paragraph 13. 10. Failure of Holder. If at any time Holder is unable or fails to enforce this Conservation Easement, or if Holder ceases to be a qualified holder under ECL Section 49-0305, and if within a reasonable period of time after the occurrence of one of these events the Holder fails to make an assignment pursuant to paragraph 10, then the Holder's interest shall become vested in another qualified holder in accordance with an appropriate (e.g., cy pres) proceeding in a court of competent jurisdiction. 11. Subsequent Transfer. This Conservation Easement shall be perpetual and run with the land and shall be binding upon all future owners of any interest in the Protected Property. 5 The conveyance of any portion of -or interest in the Protected Property, by sale, exchange, devise or gift, shall be made by an instrument which expressly provides that the interest thereby conveyed is subject to this Easement, without modification or amendment of the terms of this Easement, and such instrument shall expressly incorporate this Easement by reference, specifically setting forth the date, office, liber and page of the recording thereof. The failure of any such instrument to comply with the provisions here of shall not affect the Holder's rights hereunder. No less than thirty (30) days prior to conveyance of any interest in the Protected Property, Grantor (to include any successor Grantor) shall notify the Holder of such conveyance, providing the full names and mailing addresses of all Grantees, and the individual principals thereof, under any such conveyance. 12. No Merger of Interests. In the event the same person or entity ever simultaneously holds an interest in the Protected Property under this Conservation Easement, and holds the underlying title in fee, the parties intend that the separate interests shall not merge. 13. Amendment. This Conservation Easement may be amended in accordance with ECL Section 49-0307, but only in a writing signed by the Grantor, and the Holder and/or their successors and assigns; provided such amendment does not affect the qualification of this Conservation Easement or the status of the Holder under any applicable laws, including ECL Section 49-0305, and provided such amendment is consistent with the conservation purposes of this grant. 14. Severability. Should any separate part of this Conservation Easement be found void or unenforceable by a court of competent jurisdiction, the remainder shall continue in full force and effect. 15. Warranty. Grantor warrants that it owns the Protected Property in fee simple, and that Grantor either owns all interests in the Protected Property which may be impaired by the granting of this Conservation Easement or that there are no outstanding mortgages, tax liens, encumbrances, or other interests in the Protected Property which have not been expressly subordinated to this Conservation Easement. Grantor further warrants that Holder shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement. 16. Subordination. The holder of that certain mortgage on some or all the real property listed in Schedule B attached hereto (the "Mortgagee") which encumbers the some of the Protected Property, has executed this Agreement for the sole purpose of subordinating the Mortgage to the terms of this Conservation Easement. [optional if necessary] 17. No Gift or Dedication. Nothing contained in this Conservation Easement shall be deemed to be a gift for dedication of all or any part of either the Permitted Property or the Protected Property to the public, or for public use. 18. Counterparts. This conservation easement may be executed in one or several counterparts, and the separate affixing of this signature page or the following signature page or counterpart thereof to this Agreement shall be deemed execution of this easement by such signatory, which s together shall constitute the Conservation Easement. . 2 IN WITNESS WHEREOF, Grantor and Holder have executed this Conservation Easement as of the date written above. Execution by Grantor DCH IlWESTMENTS Inc. (New York) By: Approv Ac tance by Holder By: Name: Title STATE OF NEW JERSEY ) COUNTY OF MIDDLESEX) ss: On the 5 day of February in the year 2010 before me, the undersigned, a notary public personally appeared ;�:�5�!►•t �al�- , personally known to me or in and for said state, p Y pP 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/he executed the same in her/his capacity, and that by her/his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed this instrument. Karen OCallaghan Notary Public , Notary Public, State of New Jersey �. . No. 2329932 STATE OF NEW YORK ) Commission Expires 6/8/2010 COUNTY OF DUTCHESS ) ss: On the _ day of February in the year 2010 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 she/he executed the same in her/his capacity, and that by her/his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed this instrument. . Notary Public 7 rRqq-� P.O. Box 579 Phone: 845-562-4148 Platteldll> New York 12568 Fax: 845-562-4148 Email: HeritagesurveY@hotmail.com Darren J. Stridiron Professional Land Surveyor PROPOSED CONSERVATION EASEMENT All that certain plot, piece or parcel of land lying in the Town of W appinger, County of Dutchess, State of New York, bounded and described as follows: BEGINNING at the southwesterly corner of lands of DCH Investments Inc. (Tax lot 19- 6157-02-553706); thence, South 68 degrees 50.minutes 00 seconds East 135.10 feet along the northerly bounds of Sammartino (Tax lot 19-6158-01-480690), thence, Through lands of DCH Investments Inc. (Tax lot 19-6157-02-553706) the following eleven (11) courses: North 02 degrees 42 minutes 23 seconds East 18.01 feet; thence, North 04 degrees 10 minutes18 seconds East 18.31 feet; thence, North 43 degrees 23 minutes 45 seconds East 11.69 feet;, thence, North 78 degrees 48 minutes 14 seconds East 27 9seconds East 7 feet; thence, . feet; thence, South 83 degrees 31 minutes 0 North 80 degrees 28 minutes 56 seconds East 20.51 feet; thence, South 73 degrees 35 minutes 23 seconds East 24.98 feet; thence, South 01 degrees 48 minutes 53 seconds East 28.07 feet; thence, South 31 degrees 41 minutes 30 seconds West 25.23 feet; thence, South 03 degrees 11 minutes 41 seconds West 16.57 feet; thence, South 25 degrees 16 minutes GrouCOTax ].otas19 6157 02-558657); thence,3 feet to the northerly of lands of Greer Nine Realty p South 68 degrees 50 minutes 00 seconds 178.23 along the lands of Greer Nine Realty Group (Tax lot 19-6157-02-558657); thence, Darren J. Stridiron, P.L.S. 'rV7zVrYgAV , -P.C. P.O. Box 579 PlatteJ611, New York 12568 Darren J. Stridiron Professional. Land surveyor phone: 8463-562-4148 Fax: 845-562-4148 ]lotmail com Email: Heritagesury-Y@ Through lands of DCH investments Inc. (Tax lot 19-6157-02-553706) the following nine (9) courses: North 22 degrees 03 minutes 09 seconds East 8.71 feet; thence, North 21 degrees 32 minutes 43 seconds East 49.2 feet; thence, North 21 degrees 09 minutes 15 seconds East North 31 degrees 57 minutes 45 seconds East 10.43 feet; thence, North 21 degrees 36 minutes 48 seconds East 31.67 feet; thence, North 45 degrees 34 minutes 35 seconds East 16.85 feet; thence, North 21 degrees 03 minutes 56 seconds East 118.62 feet; thence, North 68 degrees 50 minutes 019 Sseconds West econds West 170 83 feet; thence, South 75 degrees 39 minutes South 21 degrees 10 minutes 00 seconds West 205.85 feet oloong the as BEGINNINGf lands of Sammartino (Tax lot 19-6158-01-480690) to p Containing 115,366 square feet or 2.65 acres of land, more or less. Darren J. Stridiron, P.L.S.