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2012-192 2012-192 Resolution Authorizing Entering into a Stipulation of Discontinuance and Execution of Grant of Permanent Easement for Stormwater Drainage Purposes in Connection with Litigation Commenced Against Mazochi and Howe 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 June 25, 2012. 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 Ismay Czarniecki Michael Kuzmicz ABSENT: Vincent F. Bettina The following Resolution was introduced by Councilman Beale and seconded by Councilwoman Czarniecki. WHEREAS, the Town of Wappinger brought an action in State of New York, Supreme Court, Dutchess County, against Donald A. Mazochi and Catherine A. Mazochi (hereinafter collectively referred to as "Mazochi") and Richard 1. Howe and Theresa C. Howe (hereinafter collectively referred to as "Howe"), property owners on Adams Street, for failure to maintain the contours on their property as required on their approved Final Plot Plans submitted in connection with the construction of single-family residences on their respective properties located on Adams Street in the Town of Wappinger; and WHEREAS, the failure to maintain the approved contours on their respective properties has resulted in an accumulation of water or "ponding" on Adams Street, to the detriment of the Town and neighboring property owners; and WHEREAS, after much deliberation and negotiation, the Town, Mazochi and Howe have agreed to settle their differences by entering into a Stipulation of Discontinuance, which, among other things, requires Mazochi and Howe to Grant a Permanent Easement to the Town for the construction of stormwater facilities, if, and only if, flooding and ponding of stormwater on Adams Street recurs, upon the terms and conditions as stated in the Stipulation of Discontinuance, a copy of which is attached as Exhibit "A", and in accordance with the Grant of Permanent Easement for Stormwater Drainage, a copy of which is attached as Exhibit "B". 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, after weighing all of the facts and circumstances surrounding this matter, that the terms and conditions set forth in the Stipulation of Discontinuance, attached as Exhibit "A", and the terms and conditions of the Grant of Permanent Easement for Stormwater Drainage Purposes, attached as Exhibit "B", are reasonable and acceptable and the Town Board hereby agrees to be bound by the terms and conditions stated therein 3. The Town Board hereby authorizes the Attorney to the Town, Albert P. Roberts, to execute the Stipulation of Discontinuance in the form annexed hereto, marked and designated as Exhibit "A", by and on behalf of the Town of Wappinger and have same filed with the Supreme Court, and the Town Board hereby agrees to be bound by the terms and conditions stated therein. 4. As a condition of the Stipulation of Discontinuance, the Town Board hereby agrees to accept the Grant of Permanent Easement for Stormwater Drainage Purposes to be executed by the Defendants Mazochi and the Defendants Howe, together with the Lopez Irrevocable Income Only Asset Trust, and to construct the drainage facilities, if, and only if, recent changes to the contours are insufficient to alleviate the flooding and ponding of stormwater on Adams Street. The foregoing was put to a vote which resulted as follows: BARBARA GUTZLER, SUPERVISOR WILLIAM H. BEALE, COUNCILMAN VINCENT F. BETTINA, COUNCILMAN ISMA Y CZARNIECKI, COUNCILWOMAN MICHAEL KUZMICZ, COUNCILMAN Voting: Voting: Voting: Voting: Voting: AYE AYE ABSENT AYE AYE Dated: Wappingers Falls, New York 6/25/2012 The Resolution is hereby duly declared adopted. ~~LERK SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ------------------------------------------------------------------------){ TOWN OF WAPPINGER, Inde){ No.: 2011/6925 Plaintiff, -against- STIPULATION OF DISCONTINUANCE DONALD A. MAZOCHI, CATHERINE J. MAZOCHI, RICHARD J. HOWE and THERESA C. HOWE, Defendants. ------------------------------------------------------------------------){ WHEREAS, the undersigned are the attorneys of record for all parties to the above- entitled action; and WHEREAS, no party hereto is an infant or incompetent person for whom a committee has been appointed; and WHEREAS, no person not a party has an interest in the subject matter of the action; and WHEREAS, the parties hereto acknowledge that certain improvements have been made to the existing contours of the various properties in question, which improvements have alleviated the flooding and ponding condition that caused the commencement of this action; and WHEREAS, the Town of Wappinger has agreed to be obligated to construct and install the Drainage Facilities, as set forth in the easement between the parties hereto and others, in the event that the flooding or ponding of water on Adams Street recurs; and WHEREAS, however, the Town has only agreed to be obligated to install the Drainage Facilities if and only if such recurrence of ponding or flooding recurs due to natural events and is in no way caused by any alterations of the contours of any property owned by any party hereto. 1 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, that the recitations above set forth are incorporated as if fully set forth and recited herein. IT IS HEREBY FURTHER STIPULATED AND AGREED, that the above-entitled action be, and the same is discontinued, with prejudice, and without costs to any party as against the other; and IT IS HEREBY FURTHER STIPULATED AND AGREED, that this stipulation may be signed in counterparts, with each such counterpart constituting an original and all such counterparts constituting one and the same document; and IT IS HEREBY FURTHER STIPULATED AND AGREED, that this Stipulation may be filed without further notice with the Clerk of the Court. Dated: ,2012 Dated: ,2012 Albert P. Roberts, Esq. VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP Attorneys for Plaintiff 1136 Route 9 Wappingers Falls, NY 12590 Kevin A. Denton, Esq. Denton & McLaughlin, PC Attorneys for the Mazochis One Memorial Avenue P.O. Box 418 Pawling, New York 12564 Dated: ,2012 Donald Cappillino, Esq. Cappillino & Rothschild LLP Attorneys for the Howes Seven Broad Street P.O. Box 390 Pawling, New York 12564-0390 2 GRANT OF PERMANENT EASEMENT FOR STO~ATERDRAINAGEPURPOSES THIS INDENTURE, made the _ day of June, 2012, between RICHARD J. HOWE and THERESA C. HOWE of and residing at 17 Adams Street, Wappingers Falls, NY 12590 (hereinafter referred to collectively as "HOWE" or "GRANTORS"), DONALD A. MAZOCHI and CATHERINE J. MAZOCHI of and residing at 18 Adams Street, Wappingers Falls, NY 12590 (hereinafter referred to collectively as "MAZOCHI" or "GRANTORS"), THE LOPEZ IRREVOCABLE INCOME ONLY ASSET TRUST, by JOSEPH E. MONTAGUE, Trustee and Remainderman, and VINCENT B. LOPEZ and MARY E. LOPEZ, Life Tenants, of and residing at 15 Adams Street, Wappingers Falls, NY 12590, and (hereinafter referred to collectively as "LOPEZ" or "GRANTORS"), and TOWN OF WAPPINGER (hereinafter referred to as the "TOWN" or "GRANTEE"), a municipal subdivision with its offices located at Town Hall, 20 Middlebush Road, Wappingers Falls, NY 12590. W!TNE~~ETH: WHEREAS, HOWE are the owners of a certain parcel of property, commonly referred to as 17 Adams Street, Wappingers Falls, Dutchess County, New York, 12590, tax parcel identification no. 135689-6157-01-299923-0000, which is more particularly described in a certain Deed dated November 29, 1990 from Richard Howe to Richard J. Howe and Theresa C. Howe, recorded in the Dutchess County Clerk's Office on December 3, 1990 in Liber 1880 of Deeds at Page 73 (hereinafter referred to as the "HOWE PARCEL"); and WHEREAS, MAZOCHI are the owners of a certain parcel of property, commonly referred to as 18 Adams Street, Wappingers Falls, Dutchess County, New York, 12590, tax parcel identification no. 135689-6157-01-296912-0000, which is more particularly described in a certain Deed dated March 27, 1995 from Michael A. Mazochi to Donald A. Mazochi and Catherine J. Mazochi, recorded in the Dutchess County Clerk's Office on March 29, 1995 in Liber 1959 of Deeds at Page 120 (hereinafter referred to as the "MAZOCHI PARCEL"); and WHERERAS, LOPEZ are the owners of a certain parcel of property, commonly referred to as 15 Adams Street, Wappingers Falls, Dutchess County, New York, 12590, tax parcel identification no. 135689-6157-01-308921-0000, which is more particularly described in a certain Deed dated August 13, 1968 from Anthony Montagnino to Vincent Lopez, recorded in the Dutchess County Clerk's Office on August 19, 1968 in Liber 1249 of Deeds at Page 325 (hereinafter referred to as the "LOPEZ PARCEL"); and WHEREAS, the HOWE PARCEL, the MAZOCHI PARCEL and the LOPEZ PARCEL are each contiguous to the other two above-named parcels; and WHEREAS, the TOWN is desirous of constructing and/or installing a storm water pipe, if determined by the TOWN to be necessary (hereinafter the "Drainage Facilities") through a portion of each of the HOWE PARCEL, the MAZOCHI PARCEL and the LOPEZ PARCEL to carry and discharge certain storm water that periodically occurs on Adams Street into a water course and/or rivulet that is, presently and historically has been located on the eastern portion of the MAZOCHI PARCEL; and WHEREAS, if determined by the TOWN to be warranted, the TOWN hereby undertakes the obligation to install the Drainage Facilities through a portion of each of the HOWE PARCEL, the MAZOCHI PARCEL and the LOPEZ PARCEL; and WHEREAS, the Drainage Facilities are more particularly described in a certain map, prepared by Morris & Associates, Consulting Engineers, dated March 7,2012, a true and correct 2 copy of which has been provided to and approved by each of HOWE, MAZOCHI and LOPEZ (hereinafter referred to as the "DRAINAGE PLAN"), a true and correct copy of which is attached hereto as Schedule "A." NOW, THEREFORE, in consideration of the sum of ONE ($1.00) dollar, lawful money of the United States, actual consideration, and in the further consideration of the promises set forth below, each of HOWE, LOPEZ and MAZOCHI hereby grant and release unto the TOWN a PERMANENT EASEMENT AND RIGHT -OF- WAY upon the following terms and conditions: 1. RECITATIONS INCORPORATED: The recitations above set forth are incorporated in this Easement as if fully set forth and recited herein. 2. GRANT OF PERMANENT EASEMENT AND RIGHT-OF-WAY: HOWE, MAZOCHI and LOPEZ each hereby grant unto the TOWN a PERMANENT EASEMENT AND RIGHT-OF-WAY in, on, under and through that portion of each of their parcels, hereinafter described and called the PERMANENT EASEMENT AREA, for the purposes of constructing and installing underground stormwater drain pipes and related appurtenances and to otherwise implement the DRAINAGE PLAN within the PERMANENT EASEMENT AREA for the transportation and disposal of surface, storm or ground water and to maintain, repair, reconstruct, replace and inspect the same as the TOWN may deem necessary or appropriate for the purposes set forth herein. HOWE, MAZOCHI and LOPEZ each hereby expressly acknowledge that said storm water will be discharged into a water course and/or rivulet located on the eastern portion of the MAZOCHI PARCEL in accordance with the aforementioned DRAINAGE PLAN. The PERMANENT EASEMENT AREA for each of HOWE, MAZOCHI and LOPEZ parcels is more particularly described on Schedules "B," "C," and "D," each of which are attached hereto and made a part hereof. 3 3. LIMITED MAINTENANCE EASEMENT: Additionally, MAZOCHI grants to the TOWN a LIMITED MAINTENANCE EASEMENT for a distance of thirty (30) feet from the discharge point of the aforementioned storm drain pipe into and along the aforementioned water course and/or rivulet for the purposes of allowing the stormwater to discharge and traverse over the MAZOCHI PARCEL into the water course and/or rivulet above described. Said LIMITED MAINTENANCE EASEMENT shall be only over the existing aforementioned water course and/or rivulet as it presently exists or as it may naturally flow in the future. Said LIMITED MAINTENANCE EASEMENT shall be subject to the following provisions: a. The TOWN shall be responsible for the maintenance of said LIMITED MAINTENANCE EASEMENT area only if the Town constructs the Drainage Facilities as described above and only in the following manner: Once per year, at a time determined by the Town Highway Superintendent, and on 24 hours' notice to MAZOCHI, the TOWN, its agents or employees are hereby authorized to enter the MAZOCHI PARCEL for the purposes of inspecting the flow of water through the aforementioned water course and/or rivulet and, if needed for . maintaining unobstructed surface flow, shall, by means of hand tools only, cut and/or remove from the LIMITED MAINTENANCE EASEMENT area, excess vegetation, excess silt or other obstructive material, consistent with any applicable federal, state or local regulation having jurisdiction thereof. In the event of a discrepancy regarding the maintenance requirements herein, the decision of the TOWN'S Stormwater Management Consultant or Town Engineer shall control. The TOWN shall remove from the MAZOCHI PARCEL any such excess vegetation, excess silt or other obstructive material that it removes from the LIMITED MAINTENACE EASEMENT area MAZOCHI expressly agrees that, other than the maintenance described in this paragraph, MAZOCHI shall have the sole responsibility for maintaining the MAZOCHI PARCEL, 4 including routine maintenance of the LIMITED MAINTENANCE EASEMENT area herein described. The TOWN expressly agrees that it will not connect any pipes to the catch basin shown on the DRAINAGE PLAN, such that no additional water other than surface water will enter into the stormwater pipe in the PERMANENT EASEMENT AREA. b. The TOWN shall indemnify MAZOCHI and shall hold the same harmless, including attorney's fees, against any cause, claim or action, by whomever brought, arising out of, or in any way related to, the quality of the drainage water entering the water course and/or rivulet and traversing the MAZOCHI PARCEL, provided that MAZOCHI has not caused or contributed, directly or indirectly, in any manner to the cause, claim or action, giving rise to the claim for indemnification. 4. RESEEDING: Upon completion of the construction and implementation of the DRAINAGE PLAN in the PERMANENT EASEMENT AREA, any areas disturbed shall be reseeded by the Town. If installed, the Town shall have the obligation to maintain the Drainage System. Subject to the terms of "this Grant, if subsequent maintenance or repair work requires a disturbance of the PERMANENT EASEMENT AREA, the TOWN shall reseed such disturbed areas. Each of HOWE, MAZOCm and LOPEZ shall be responsible for lawn maintenance, including periodic lawn mowing within the PERMANENT EASEMENT AREA, or within the LIMITED MAINTENANCE EASEMENT area, located on their respective parcels, or as they may otherwise agree. 5. ADDITIONAL RIGHTS: This Grant of PERMANENT EASEMENT AREA includes but is not limited to the following appurtenant rights necessary to effectuate the construction, repair and maintenance of the drainage pipes, ditches, channels or appurtenances above described: 5 a. the right of ingress and egress by person, motor vehicle and construction equipment necessary to lay and to construct and install, and otherwise implement the DRAINAGE PLAN in, on, under and through the PERMANENT EASEMENT AREA for the transportation and disposal of surface, storm or ground water through the PERMANENT EASEMENT AREA, and to maintain, repair, reconstruct, replace and inspect the same as the TOWN may deem necessary for the purposes set forth herein; and b. the right to clean, clear, excavate, fill, grade, or cultivate the PERMANENT EASEMENT AREA and/or otherwise improve the same for the purposes set forth herein, and as shown on the DRAINAGE PLAN. 6. PROHIBITION/LIMITATIONS OF STRUCTURES: HOWE, MAZOCHI and LOPEZ each are hereby prohibited from planting any trees or shrubs or constructing and/or maintaining any type of permanent or temporary structure and/or from constructing/installing any type of underground pipes or conduits in, on, or over the PERMANENT EASEMENT AREA except upon the written approval of the Town of Wappinger Highway Superintendent and upon the recommendation of the Town of Wappinger Engineer. Notwithstanding the foregoing, HOWE shall be permitted to erect a fence within the PERMANENT EASEMENT AREA, at a location approved by the Highway Superintendent and Engineer to the Town. In the event that any fence installed by HOWE within the PERMANENT EASEMENT AREA is required to be removed in order for the TOWN to maintain the Drainage Facilities, the TOWN shall be permitted to remove any portion or portions of the fence reasonably necessary to maintain the Drainage Facilities without liability. Re-installation of the fence shall be the sole responsibility of HOWE, should HOWE choose to reinstall same. 6 7. BINDING EFFECT: The terms, covenants, and agreements herein contained shall inure to the benefit of, and be binding upon the parties hereto and their respective heirs, distributees, legal representatives, successors and assigns and ALL COVENANTS HEREIN SHALL RUN WITH THE LANDS AFFECTED THEREBY AND SHALL BE PERPETUAL IN DURATION. IN WITNESS WHEREOF, HOWE, MAZOCHI, LOPEZ and the TOWN have executed this instrument as of the date first set forth above. Richard J. Howe, Grantor TheresaC.Howe,Grantor Donald A. Mazochi, Grantor Catherine A. Mazochi, Grantor Vincent B. Lopez, as Life Tenant, Grantor Mary E. Lopez, as Life Tenant, Grantor Joseph E. Montague, as Trustee of The Lopez Irrevocable Income Only Asset Management Trust, Grantor TOWN OF WAPPINGER BY: Barbara Gutzler, Supervisor 7 ACKNOWLEDGMENTS STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of ,2012 before me, the undersigned, a notary public in and for said state, personally appeared RICHARD J. HOWE, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PUBLIC STATEOFNEWYORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of ,2012 before me, the undersigned, a notary public in and for said state, personally appeared THERESA C. HOWE, 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 8 STATEOFNEWYORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of ,2012 before me, the undersigned, a notary public in and for said state, personally appeared DONALD A. MAZOCHI, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PUBLIC STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the day of ,2012 before me, the undersigned, a notary public in and for said state, personally appeared CATHERINE A. MAZOCHI, 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 9 STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of , 2012 before me, the undersigned, a notary public in and for said state, personally appeared VINCENT B. LOPEZ , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PUBLIC STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of , 2012 before me, the undersigned, a notary public in and for said state, personally appeared MARY E. LOPEZ, 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 mstrument 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 10 STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of ,2012 before me, the undersigned, a notary public in and for said state, personally appeared JOSEPH E. MONTAGUE, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PUBLIC STATE OF NEW YORK ) ) ss.: COUNTY OF DUTCHESS ) On the _ day of , 2012, before me personally came BARBARA A. GUTZLER to me known, who, being by me duly sworn, did depose and say that she resides in the Town of Wappinger; that she is the Supervisor of the Town of Wappinger, the municipality described in and which executed the above instrument; and that she signed her name thereto by authority of the Town Board of the Town of Wappinger. NOTARY PUBLIC 11