HomeMy WebLinkAbout20220202 Stewarts 31- 33 Marion Avenue additional information THEE LAW OFFICES OF Libby Coreno, Esq.
M. E L I ZA E E T H C O R E N O,ESQ.P.C. libby@corenolaw.com
December 2, 2022
Mr. Gage Simpson, Chair
Zoning Board of Appeals
City of Saratoga Springs
474 Broadway
Saratoga Springs,New York 12866
Re: Stewart's Shops Marion Avenue—Area Variance Relief
Dear Chairman Simpson:
As you may recall, I represent Stewart's Shops ("Stewart's")regarding its proposed renovation of
the location at Marion Avenue which includes a request for area variance relief from the Zoning
Board of Appeal ("ZBA"). During our last appearance before the ZBA on September 26, 2022,
Stewart's was directed to address three primary issues concerning the project, to wit: (1) whether
the application should include area variance relief from the Section 6.3.3 of the former Zoning
Code related to the distance of gas pumps from an abutting residential district; (2) whether the
application should make a request for relief from the limitation of parking in the rear setback
pursuant to Section 6.2.7 Design Requirements, part D of the former Zoning Code; and (3) the
terms of the License Agreement between Stewart's and National Grid for use of the access road
between Stewart's parcel and the City of Saratoga Springs' parcel.
First, the gas pumps located on the Marion site have been permitted by the City before 1976 as
evidenced by the Special Use Permit issued by this Board. The 1976 Permit references the
Congress Gas& Oil location in reviewing the request to construct a car wash—which request was
granted on May 26, 1976 (see Letter from Patrick Cogan to the Board dated May 22, 2022).
Subsequent zoning provisions have been enacted in the City regarding the placement of gas pumps
which included the 2004 requirements of Section 6.6.3 providing that no gas pump shall be located
within 250 feet of an abutting residential district. However, according to the zoning notes from
Code Enforcement Officer Patrick Cogan's, letter dated May 22, 2022, the City zoned the
surrounding parcels as UR2 sometime around 1990 which was decades after the pumps were
installed. Even before 1990 though,his records indicate that the Marion site has been surrounded
by residential zoning since the first inception of the restrictions in the outer district circa 1971.
Therefore, Stewart's position is that(1)the gas pumps placement are pre-existing to Section 6.3.3
and therefore are"grandfathered"under the 250 feet rule; (2)the Special Use Permit contemplates
the proper use of gas and car wash at the site as early as 1976 which rights have vested in favor of
Stewart's; (3) a 2004 site plan approval from the City Planning Board (also referenced in Cogan
letter) denotes the placement of the gas pumps and the canopy without any relief from this Board
—a time which both the UR2 zoning and Section 6.6.3 were in effect; and, notwithstanding any of
the foregoing legal grounds, (4) Stewart's would otherwise be entitled to request area variance
relief from the Board for the slight movement (3 feet) of the gas pumps even farther away from
the residential district to become more conforming.
Law Office of M.Elizabeth Coreno,Esq.P.C.
63 Putnam Street, Suite 202
Saratoga Springs,New York 12866
(518)682-6901
(518)682-6902
THEE LAW OFFICES OF Libby Coreno, Esq.
M. E L I ZA E E T H C O R E N O,ESQ.P.C. libby@corenolaw.com
Second, as it relates to the parking in the rear setback, it is unclear whether Section 6.2.7 Design
Requirements,part D was in effect at the time the 2004 site plan approval was issued by the City.
The approval does not show the parking requirements on the plans;however, it is self-evident that
the "macadam" referenced necessarily serves as the parking spaces on the site. Regardless, the
current application places nine (9) in the rear yard setback which is permitted under the current
UDO zoning and exactly 20% of the parking in the front yard setback which is also permitted
under the new zoning (Section 10.2(B)(5)). Therefore, the applicant is requesting to modify its
application for area variance relief from the 2004 zoning restrictions in favor of conforming with
the current UDO zoning in the City.
Third, I am enclosing the License Agreement with National Grid which owns SBL: 166.5-4-2, a
parcel which extends from Marion Avenue,surrounding the Adirondack Trust ATM kiosk heading
north along the eastern boundary of the Stewart's lands. It is this license agreement that Stewart's
and the City both utilize for access to their adjacent sites. In reviewing the terms of the License
Agreement, the City has previously issued approvals subject to the same License Agreement;
specifically in the matter of DRC 2004.005, the Design Review Commission (DRC) issued an
approval on February 5, 2004 allowing the construction of a kiosk and tank replacement which
was ultimately completed in 2005 and, as previously mentioned, the Planning Board's 2004 site
plan also contemplates the use of the license area. Taken together, Stewart's understands that its
(and the City's) continuing reliance on the National Grid license is taken at its own risk, but the
50-year pattern and history between the parties (and predecessors) gives no cause for concern at
this time.
I wish to thank the Board for its time and courtesies in this matter.
Respectfully submitted,
. Elizabeth Coreno
Cc: Zoning Board of Appeals
Ryan Rubado
Law Office of M.Elizabeth Coreno,Esq.P.C.
63 Putnam Street, Suite 202
Saratoga Springs,New York 12866
(518)682-6901
(518)682-6902
oGA City of Saratoga Springs Zoning KCOGAN
Zoning&Building Inspector
o� �! BUILDING DEPARTMENT Extension 2491
s
H - z CITY HALL DUANE MILLER
u - Assistant Building Inspector
474 Broadway, Suite 32 Extension 2512
Saratoga Springs, NY 12866
•NC�RPORATED�A,�• JEANNA FRITZ-THOMAS
Assistant Building Inspector
• BUILDING & PLUMBING Telephone (518)587-3550 Ext. 2511 Extension2541
• CODE COMPLIANCE www.saratoga-springs.org ROBERT KOCIS
• ZONING Assistant Building Inspector
Extension 2542
JOHN BARNEY
Assistant Building&Construction Inspector
Extension 2521
May 16, 2022 RICHARD TIERSCH
Assistant Building&Construction Inspector
Extension 2563
Zoning Board of Appeals
Application 4 20220202
31 —33 Marion Avenue— Stewart's Shops
Parcels 4: 166.5-4-1.1, 166.5-4-1.2, 166.5-4-1.3
RE: City Zoning Ordinance §240-1.7(D)
Members of the Zoning Board of Appeals,
As requested, I have examined the application submitted by Stewart's Shops for the proposed redevelopment
of 31 —33 Marion Ave. Per the applicant's narrative, a portion of the adjoining parcel (166.5-4-1.1)has been
"incorporated into the proposal via 1.7(D) of the City's Zoning Ordinance which extends zoning 100 feet."
Correspondence received from neighbors and the Maple Ave, Marion Ave, Maple Dell Neighborhood
Association has raised objections and questioned the validity of utilizing §240-1.7(D) as it applies to the
property in question. The Zoning Board of Appeals (ZBA)has requested a determination and clarification of
whether Section 1.7(D) can be utilized by the applicant to extend the requirements of the Tourist Related
Business (TRB) zoning district 100 feet to the north into parcel 166.54-1.1,which is part of the Urban
Residential—2 (UR-2) zoning district. The Zoning Map boundary between the TRB and UR-2 zoning
districts is clearly coincident with the parcel boundary between parcels 4 166.5-4-1.1 and 166.5-4-1.3.
§240-1.7 of the City's Zoning Ordinance reads as follows:
1.7 INTERPRETATION OF DISTRICT BOUNDARIES
Where there is uncertainty as to the boundary of any district contained within this Chapter or as shown on
City maps,the following rules shall apply:
A. Unless shown to the contrary on a City map,the boundary lines of districts are the center lines of streets,
or such lines extended,the center lines of railroad rights-of-way,the center lines of creeks and waterways.
B. Where district boundaries are indicated as approximately following the City boundary line, lot lines, or
projections thereof, said boundaries shall be construed to be coincident with such lines.
C. If a center line or right-of-way line of a street,highway, railroad,public utility, or watercourse,which is
approximately coincident with a district boundary, is moved up to a distance of 50 feet,the district line
shall be automatically adjusted to be coincident with such line.
Page I 1
D. Where a zoning district boundary line divides a lot or land in single ownership as existing at the time of
this enactment,the district requirements on either side of the boundary may be construed,at the property
owner's option, as extending into the remaining portion of the property for a distance not exceeding 100
feet.
The neighborhood association suggests that Section 1.7(D) can only be used"where there is uncertainty as to
the boundary of any district". In this case,there is no uncertainty as to where the boundary between the TRB
and UR-2 districts is located, so the suggested implication would be that 1.7(D)cannot be used without such
uncertainty. Following the logical and literal construction of Section 1.7, I find it difficult to disagree.
However, after thoroughly researching the history of the language, and examining the text of every iteration of
the Zoning Ordinance since 1961,my determination is that clause 1.7(D)was grouped under Section 1.7 as a
result of a formatting error in 2012, and was never intended to only apply in situations "where there is
uncertainty as to the boundary". The clause dealing with"Lots in two districts"was under a separate heading
from 1961 —2012. Logically,placing the clause under Section 1.7 doesn't make sense. If there is uncertainty
as to the exact boundary between districts,how can the requirements be construed to extend up to 100 feet?
Where would the 100 feet be measured from?
There is plenty of established precedent that the City has never required an applicant to demonstrate
uncertainty in order to utilize the 100 foot move. Additional information can be found in my attached
research notes titled"Zoning Notes— Split Zoned Lots".
So if uncertainty as to the boundary location need not be established,the question remains as to whether
Section 1.7(D) can be used by the applicant to incorporate 100 feet of parcel 166.5-4-1.1 into the project,
construing the requirements of the TRB district 100 feet to the north of the district boundary line. To answer
that question, I believe it is necessary to establish when said boundary line was drawn, and whether or not the
land divided by the boundary was under single ownership "at the time of this enactment".
I examined every known and published version of the Zoning Map since 1961. An outline of my findings is
contained in the attached research notes titled"Marion Ave Zoning Map Notes". I intend to bolster these
notes with corresponding images of the referenced map versions if necessary. My conclusion is that the
boundary between the commercial zoning district(TRB, TRBD, C-3) and the residential zoning district has
been in the same location,coincident with the parcel boundary between 166.5-4.1.1 and 166.5-4-1.3 since at
least 1998, and in all likelihood, since 1991. Property records show that Stewarts Shops Corp acquired parcel
166.5-4-1.3 from Marion Ave Car Wash in 2003. Stewarts Shops Corp acquired parcel 166.5-4-1.1 from
Congress Gas and Oil in 2004. So when the district boundary was established, it was exactly coincident with
the parcel boundary,the parcels were not under single ownership,and were not owned by Stewart's Shops.
The heart of the issue is whether or not a commercial use such as a car wash should be allowed to expand 100
feet into a parcel clearly zoned for residential use. In 1976,when the car wash was originally authorized on
what is now parcel 166.5-4-1.3,the use required a special permit in the B-3 zoning district. Special Permits
were evaluated by the Zoning Board of Appeals in 1976. A carwash use in the TRB zoning district would
require Special Use Permit and Site Plan Approval,now conducted by the Planning Board. Attached is the
special permit granted by the Zoning Board of Appeals in 1976,providing the original authorization for the
construction of the car wash. As you can see,the following condition of approval left no doubt as to the
ZBA's opinion in this matter:
"The Board points out that the balance of Congress Gas &Oil property to the north is considered to be
residential in character and the Board at this time disapproves further business expansion north of the subject
property."
Page 1 2
For the reasons stated herein, it is my determination that it would be inconsistent with the language and intent
of the Zoning Ordinance to allow Stewart's Shops to extend the requirements of the TRB district 100 feet to
the north into parcel 166.5-4-1.1,which is wholly within the UR-2 district.
I respectfully reserve the right to amend and augment the information contained in this letter and supporting
documents if necessary, or in the event of an interpretation appeal.
Please let me know if any additional information is required or if clarification is requested on this or any other
issue.
Respectfully,
Patrick D. Cogan
Zoning and Building Inspector
Page 1 3
LICENSE AGREEMENT
THIS AGREEMENT, made the day of 2015, with an
effective date of June 1, 2015 (the "Effective Date") by and between NIAGARA MOHAWK
POWER CORPORATION, a transportation corporation of the State of New York, with its
principal office and place of business at 300 Erie Boulevard West, Syracuse, New York 13202,
hereinafter called "Licensor" and STEWART'S SHOPS CORP., with its principal office and
place of business at 2907 Route 9, Malta, New York 12020, and a mailing address of P.O. Box
435, Saratoga Springs, New York 12866, hereinafter called "Licensee".
WITNESSETH:
SUBJECT to such terms and conditions hereinafter set forth in this Agreement, Licensor
does hereby consent to Licensee, its successors and assigns, witliout covenant or warranty of any
kind, express or implied, permission to use and maintain a paved access and parking area
("License Area") upon a portion of Licensor's land commonly known as the Spier Falls-
Saratoga-Ballston electric transmission line (the "Right-of-Way") located near the intersection of
Marion Avenue (Route 9) and Route 50, in the City of Saratoga Springs, County of Saratoga and
State of New York, as described in Exhibit "A", and as shown on Exhibit °B", each attached
hereto and made a part hereof. The License Area was originally the subject of an agreement
dated the I" day of August, 1978 between Licensor and Congress Gas and Oil Co., Inc and a
subsequent agreement dated June 3, 2005 between Licensor and Licensee.
Licensor retains the right to construct, install, repair, and replace facilities within and
around the License Area.
LICENSE SUBORDINATE TO PRIOR RIGHTS
1. The rights described above are given and accepted subject to any and all outstanding
leases, tenancies, easements, licenses or other tenures, and_or claims of title affecting Licensor's
said Right-of-Way or any portions thereof; and subject also to any and all encumbrances, liens,
conditions, restrictions and,`or reservations under which Licensor holds the same.
TERM OF AGREEMENT, TERNIINATI.ON, ANNUAL FEE
2. A. The term ("Term") of this Agreement shall commence on June 1, 2015 and expire
on May 31, 2020.
B. This Agreement is revocable by Licensor and may be terminated at any time by
either party upon thirty (30) days written notice to the other party. In the event of termination,
Licensee shall remove any and all facilities installed or constructed hereunder and shall restore
Licensor's Right-of-Way in all respects to the condition existing at the time of execution of this
Agreement.
C. Licensee shall pay an annual License Fee ("License Fee") in the amount of Ten
Thousand and 00:100 (S 10,000.00) dollars for each year of the Term. The License fee shall be
due annually and payable in advance.
D. Subject to the terms and conditions set forth herein, this Agreement may be
renewed for an additional five-year term ("Renewal Term") commencing June 1, 2020 and
expiring May 31, 2025. Licensee shall provide notice of its intention to renew this Agreement
no later than ninety days prior to the expiration of the Initial Term.
E. Licensee shall pay an annual License Fee in the amount of Thirteen Thousand
and 00:100 ($13,000.00) dollars for each year of the Renewal Term. The License fee shall be
due annually and payable in advance.
2
INSURANCE RE UIREMENT
3. At the time of execution of this Agreement by Licensee, Licensee shall furnish to
Licensor evidence that insurance policy(ies) satisfactory to Licensor, and not subject to
cancellation or material change without ten (10) days prior written notice to Licensor have been
issued to it, as set forth on Exhibit"C" attached hereto, which policy(ies) or equally satisfactory
renewals or extensions thereof shall be maintained in force so long as Licensee exercises the
rights granted herein.
PRIOR NOTICE OF CONSTRUCTION AND RIGHT OF INSPECTION
4. A. Licensee shall give Licensor at least one (1) week written notice before
commencing any work hereunder, whether in initial construction or subsequently. Licensor, at
its election, may have an inspector present at the time or times such work is being performed.
Such inspector shall have the right and authority to require modification or cessation of any or all
work hereunder, when in his or her judgment, such work is contrary to the provisions of this
Agreement, or is or may become a source of danger to the facilities of Licensor, and in any such
event, Licensee shall promptly pay Licensor the reasonable cost and expense of such inspection.
The presence or absence of Licensor's inspector shall not constitute a waiver of any provisions
of this Agreement.
B. In case of emergency, however, Licensee may proceed to make immediate repairs
upon verbal or telephone notice to Licensor of the situation which said notice Licensee shall
follow within three(3) working days thereof with a confirming letter.
SPECIAL CONDITIONS
5. Entry onto Licensor's lands, protection of Licensor's facilities, payment of
consideration and other relevant matters are subject to the following conditions:
3
a. Licensee shall not park in the License Area or Right-
of-Way, except for any parking spaces that may exist
as of the date of this Agreement.
b. Licensee shall not store, repair or dispose of vehicles
in the License Area or Right-of-Way.
C. Licensee shall not store or dispose of oil or hazardous
wastes or substances in the License Area or Right-of-
Way.
d. Licensee shall not install any unauthorized structure
on the License Area or Right-of-Way.
C. Licensee shall not prevent longitudinal vehicular
travel by Licensor once Licensee's permanent
facilities are installed.
f. Licensee shall not change grade without consent of
Licensor.
g. Licensee shall not perform blasting operations of any
nature.
CONDUCTOR AND STRUCTURE CLEARANCE
6. The excavation, construction, operation, maintenance, repair, reconstruction and
removal of Licensee's facilities in the License Area shall be accomplished without any
equipment having extensions whose highest point reaches (or which is potentially capable of
reaching) within fifteen (IT) feet of the lowest electric conductor on Licensor's Right-of-Way.
There shall be a minimum horizontal clearance to the nearest structure of twenty-five (25') feet.
All construction equipment working under or near electric conductors shall be grounded.
COMPACTION OF EXCAVATION
7. Licensee shall provide not less than thirty (30") inches of cover over any underground
facilities installed by Licensee pursuant hereto; such cover shall be compacted so as to be capable of
withstanding AASHTO-H20 highway loading.
PRESERVATION OF DRAINAGE
8. Licensee shall restore existing grades and contours so that there will not be a collecting
or pooling; of runoff waters or surface waters upon the License Area or Right-of-Way resulting from
the installation, construction, maintenance and operation of Licensee's facilities.
LOCATION MARKERS
9. Standard marker posts (if applicable), extending a minimum of three (3') feet above
ground, shall be installed by Licensee at the points of entrance and exit of any pipelines, cables or
other underground facilities installed by Licensee across the License Area or Right-of-Way.
SOIL RESTORATION
10. All earth or soil disturbed by the work of Licensee shall be properly backfilled and
the surface thereof restored to its former condition to the extent reasonably possible by Licensee
at its sole cost and expense.
STANDARD CONSTRUCTION
11. The facilities constructed and installed shall be in compliance with all federal, state
and local regulations concerning;the construction of such facilities. Licensee shall, at all times after
construction, maintain said facilities in good repair and in a safe condition.
QUALITY OF CONSTRUCTION MATERIALS
12. The quality of the material to be used in constructing the facilities on the License
Area or Right-of-way shall be in compliance with all regulations relating;to the construction of such
facilities.
COMPLIANCE WITH APPLICABLE LAWS
13. Licensee shall, at its own cost, comply with applicable laws, ordinances, orders,
rules and regulations of the United States, State of New York, or any departments, bureaus,
5
authorities or commissions created under the laws of either government, and of the
municipalities in which said lands are situated as the same relates to the exercise of the rights and
privileges granted hereunder, including but not limited to, all OSHA standards for work in a high
voltage area, and shall obtain all required pen-nits for the operations permitted herein.
NON-INTERFERENCE WITH FACILITIES
14. Licensee shall so construct and shall thereafter operate, maintain, repair, reconstruct,
and/or remove its facilities so as not to injure or damage Licensor's Right-of-Way or injure,
damage or interfere with Licensor's existing facilities, or facilities which may be installed in the
future.
LICENSOR'S PARAMOUNT RIGHTS
15. All rights granted hereunder shall be subject and subordinate to the paramount rights
of Licensor now and hereafter to occupy and use all or any portion or portions of the License
Area in its operations, provided however, that any such occupancies or uses shall not prevent the
exercise by Licensee of the rights conferred by this Agreement. Licensor, however, shall not be
responsible to Licensee for any damage to Licensee's facilities arising out of Licensor'S
operations or otherwise.
REIMBURSEMENT FOR MODIFICATION OF FACILITIES
16. Licensee shall promptly reimburse Licensor, upon submission of proper bills, for
any and all reasonable costs and expenses of changing and/or relocating Licensor's existing or
future facilities, and any and all additional costs and expenses involved in the construction of new
facilities made necessary by the installation and presence of Licensee's facilities.
NOTICE
17. Any notice to be given under the terms of this Agreement shall be in writing,
addressed as follows:
6
To Licensor: To Licensee:
Niagara Mohawk Power Corporation Stewarts Shops Corp.
Attn: Real Estate Manager Attn: Rcas{��c. �a•� ,�i
1 125 Broadway P.O. Box 435
Albany, New York 12204 Saratoga Springs, New York 12866
The date of mailing shall be deemed the date of service of such notice.
REIMBURSEMENT OF TAXES
18. Licensee shall reimburse Licensor for all additional taxes and assessments levied
against the License Area or Right-of-Way because of Licensee's occupation and use of same.
INDEMNIFICATION
19. Licensor shall not be responsible for loss, damage, or injury (including
death) to property or persons, including Licensee and Licensee's employees, agents and guests,
arising from or in any way connected with the exercise of the rights provided herein. Licensee
agrees to indemnify, defend and hold harmless Licensor against all loss, damage, liability, cost
and expenses arising from or in connection with any damage or injury to third parties (including
real property, personal property and environmental damages) or persons (including injuries
resulting in death), directly or indirectly arising out of, caused by, incurred during, or in any way
connected with the use of the rights granted herein, or which occurs on or about the License
Area, or which is caused by any act, omission, negligence or misconduct of Licensee, including
its agents, employees, and guests.
PAVING
20. Licensee may, at its own cost, expense and risk, install, improve or maintain an
asphalt paved surface within the bounds of the License Area and Licensor shall not be held liable
for any damage thereto resulting from its use of the Right-of-Way.
ENTIRE AGREEMENT
21. No provision of this License shall be deemed to have been waived by Licensor
unless such waiver be in writing signed by Licensor. This License contains the entire agreement
between the parties and any executory agreement hereafter made shall be ineffective to change,
modify or discharge it in whole or in part unless such executory agreement is in writing and
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have hereunto subscribed their names and
affixed their seals all on the day and year first above written.
NIAGARA MOHAWK POWER CORPORATION
By:
Name: Keith P. McAfee
Its: Vice President - Electric
STEWART'S SHOPS CORP.
By: -��Lj
Name: Mi hael Co ca
Its: Treasurer
R
STATE OF NEW YORK
ss..
COUNTY OF P L,6(4N
On the 2011" day of 0 J9(X4— , 20I5, before me, the undersigned, a
Notary Public in and for said state, personally appeared e.�_ k-+_ C. Y-n c _ e; ,
personally known to me or proved to me on the basis of sati factory evidence tb be the
individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
Haliaa M.Gaiewski
Notary Public,State of New York
Qualified in Schenectady County
No.01GA6107N5
Commission Expires April 12, '2-0 Ito
STATE OF NEW YORK
ss..
COUNTY OF
On the _/Vl�day of G7V;k/ 2015, before me, the undersigned, a
Notary Public in and for said state, personally appeared 1AChtt Coa t-
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is'are subscribed to the within instrument and acknowledged to me
that hershe?they executed the same in his/her their capacity(ies), and that by his/her'their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the 6�
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EXHIBIT "A"
NMPC Doe. No. 147437
LICENSEE: STEWART'S SHOPS CORP.
PURPOSE: Use and maintenance of existing paved area within Right-of-Way
LOCATION OF PROPERTY: Routes 9 and 50, City of Saratoga Springs, County of Saratoga
DEED REFERENCE:
To: Niagara Mohawk Power Corporation
From: The Delaware and Hudson Railroad Corporation
Dated: October 13, 1960
Recorded: November 7, 1960
Book 698 at Page 168
County: Saratoga
NIAP REFERENCE: Spier Falls Saratoga Ballston, Q-197, Sheet 15
NIAGARA NIOHAWK PERSONNEL TO ADVISE OF CONSTRUCTION:
Mike Martuscello
Manager, Overhead Lines Northeast
518-522-0332
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EXHIBIT "C"
Insurance Requirements
1 . From the commencement of the Agreement, through final expiration or longer where specified
below, Grantee shall provide and maintain, at its own expense, insurance policies, intended to be
primary(with no right of contribution by any other coverage available to National Grid USA its
direct and indirect parents, subsidiaries and affiliates (the"Insured Entities")),covering all
Operations, Work and Services to be performed under or in connection with this Agreement,
issued by reputable insurance companies with an A.M. Best Rating of at least B+, which at least
meet or exceed the requirements listed herein:
(a) Workers' Compensation and Employers Liability insurance as required by the State in
which the work activities under this Agreement will be performed. If applicable, Coverage shall
include the U-S. Longshoreman's and Harbor Workers Compensation Act, and the!ones Act.
The employer's liability limit shall be at least$500,000 each per accident,per person disease,
and disease by policy limit.
If Grantee is exempt from having to obtain and maintain workers' compensation coverage due to
their legal status as a sole proprietor or partnership, Grantee shall obtain:
1. Long tenn disability insurance covering any illness or injury incurred in connection with this
Agreement that prevents Grantee from working, with benefits of at least 50%of the Grantee's
monthly income on the last day before the disability begins.
3. Health Care Insurance, covering any loss occasioned by bodily injury, sickness or disease,
and medial expense, with limits,coverage,deductibles, co-insurance payments, and any other
cost sharing features customarily maintained by other entities of a similar size and business
nature.
(b) Commercial General Liability (CGL) Insurance, covering all operations to be performed by
or on behalf of Grantee under or in connection with this Agreement, with minimum limits of:
Bodilv Iniury(BI) -$1,000,000 per occurrence
Property Damage(PD) - S 500,000 per occurrence
OR
Combined Single Limit -S1,000,000 per occurrence
OR
BI & PD per Occurrence -$l,000,000
General Aggregate&
Product Aggregate -S2,000,000 each
• Coverage shall include: contractual liability(with this Agreement, and any associated verbal
agreements, being included under the definition of"Insured Contract"thereunder), products/
completed operations,and if applicable, explosion, collapse and underground (XC&U).
• If the products-completed operations coverage is written on a claims-made basis, the
retroactive date shall not precede the effective date of this Agreement and coverage shall be
maintained continuously for the duration of this Agreement and for at least two years thereafter.
• Additional Insured as required in Article 3 below,
• The policy shall contain a separation of insureds condition.
II
a In the event Grantee is a governmental entity such as a Town, County, Municipality etc., and
such entity's liability to a third party is limited by law, regulation,code,ordinance, by-laws or
statute(collectively the"Law"), this liability insurance shall contain an endorsement that waives
such Law for insurance purposes only and strictly prohibits the insurance company from using
such Law as a defense in either the adjustment of any claim, or in the defense of any suit directly
asserted by an Insured Entity.
(c) Automobile Liability,covering all owned, non-owned and hired vehicles used in connection
with all operations, wort:or services to be performed by or on behalf of Grantee under or in
connection with this Agreement with minimum limits of:
Bodily Iniury - $500,000 Per oecurrence; 1,000,000 nares!ate
Property Damage -$500,000 per occurrence
OR
Combined Single Limit -51,000,000 per occurrence
Additional Insured as required in Article 3 below.
(d) Umbrella Liability or Excess Liability coverage, with a minimum per occurrence limit of
$4,000,000. This coverage shall run concurrent to the CGL required in Article 1(b) above, shall
apply excess of the required automobile, CGL and employer's liability coverage required in this
Insurance Exhibit, and shall provide additional insured status as outlined in Article 3 below.
(e) Watercraft Liability, if used in connection with this Agreement, with the same minimum
limits of liability as outlined in requirement I(b)above,and naming the Insured Entities,
including their officers and employees, as additional insured as outlined in article 3.
(f) Aircraft Liability, if used in connection with this Agreement, with a limit of liability of not less
than $10,000,000 combined single limit per occurrence,and naming the Insured Entities,
including their officers and employees,as additional insured's as required in Article 3 below.
Such coverage shall not include a per-passenger or per seat coverage limit.
(g) Contractors Pollution Liability(CPL): covering any sudden and accidental pollution liability
which may arise out of, under, or in connection with this Agreement, including all operations to
be performed by or on behalf of Grantee, or that arise out of the Grantee's use of any owned,
non-owned or hired vehicles, with a minimum liability limit of,
Bodily°Iniury(BI) - $1,000,000 Per occurrence
Property Damage(PD) -$ 500,000 per occurrence
OR
Combined Single Limit -$1,000,000 per occurrence
This requirement may be satisfied by providing either this CPL policy, which would include
naming the Insured Entities, including their officers and employees, as additional insured's as
outlined in Article 3 below; OR by providing coverage for sudden and accidental pollution
liability under the CGL and commercial automobile insurance policies required above - limited
solely by the Insurance Services Organization(ISO) standard pollution exclusion,or its
equivalent.
In the event grantee is unable to secure and/or maintain any or all of this sudden and accidental
pollution liability coverage, Grantee agrees to indemnify and hold the Insured Entities harmless
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against any and all liability resulting from any coverage deficiency that is out of compliance
with this insurance requirement.
(It) Risk of Loss: Grantee shall be responsible for all risk of loss to its equipment and materials,
and any other equipment and materials owned by its employees or by other third parties that may
be in their care, custody and control. If this coverage is excluded from the Commercial General
Liability policy, then coverage will be acceptable under Grantee's property policy.
In the event that any equipment or materials (Goods)are supplied by the Insured Entities, an
Insured Entities representative will provide the insurable value of the Goods to Grantee in
writing, both cumulatively and on a maximum per item basis. Grantee will provide replacement
cost insurance for these Goods under a blanket builder's risk policy, an equipment floater, or
other equivalent coverage, while such Goods are under the care, custody and control of Grantee.
Such insurance shall cover all Goods outlined in the Agreement or as noted on subsequent
contract amendments. The coverage limit shall apply on either a per Iocation basis or a
maximum per item basis, and shall name the Insured Entities, as a Loss Payee with respect to
their insurable interest as required in Article 3 below.
(i) Ilomeow•ners/Sole Proprietors Insurance: In the event that Grantee is either a homeowner or
sole proprietor, the requirements in section l A and D do not apply. However, these
requirements do apply to any contractors that have been hired by Grantee to perform any work
activities on the premises as defined in this Agreement.
In addition, if a Homeowners insurance company will not provide the additional insured status to
National Grid as required in section 3, Grantee agrees to indemnify and hold harmless the
Insured Entities for any liability that would have otherwise been covered had the insurance
carrier recognized the additional insured status.
(j) Limits: Any combination of Commercial General Liability, Automobile Liability and Umbrella
Liability policy limits can be used to satisfy the limit requirements in items 1 b, c& d abode.
If the terns of this agreement is longer than five (5) years, in the fifth year,and eaery five(5)
years thereafter, the Commercial General Liability and Umbrella/Excess Liability insurance
limits required above shall be increased by the percentage increase in the Consumer Price Index
from the month the Agreement was executed to the month immediately preceding the first
month of the year in which the increase is required.
2. Self-Insurance: Proof of qualification as a qualified self-insurer, if approved in advance in
writing by an Insured Entities representative,will be acceptable in lieu of securing and
maintaining one or more of the coverages required in this Insurance Section. Such acceptance
shall become a part of this insurance provision by reference herein.
For Workers' Compensation, such evidence shall consist of a copy of a current self-insured
certificate for the State in which the work will be performed.
In order for self insurance to be accepted, Grantee's unsecured debt must have a financial rating
of at least investment grade. For purposes of this section, "Investment Grade"means (i) if
Grantee has a Credit Rating from both S&P and Moody's then, a Credit Rating from S&P equal
to or better than"BBB-"and a Credit Rating from Moody's equal to or better than"Baa3"; (ii) if
Grantee has a Credit Rating from only one of S&P and Moody's, then a Credit Rating from S&P
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equal to or better than"BBB-" or a Credit Rating from Moody's equal to or better than"Baa3; or
(lit) if the Parties have mutually agreed in writing on an additional or alternative rating agency,
then the equivalent credit rating assigned to an entity by such additional or alternative rating
agency that is equal to or better than"BBB-" from S&P and/or"Baa3" from Moody's.
3. Additional Insured and Loss Payee: The intent of the Additional Insured requirement under
the CGL, Auto, CPL, Umbrella/Excess, Aircraft and Watercraft policies is to include the Insured
Entities, their directors, officers and employees, as Additional Insured's for liabilities associated
«-ith, or arising out of, all operations, work or services to be performed by or on behalf of
Grantee, including ongoing and completed operations,under this Agreement. The following
language should be used ►s hen referencing the additional insured status: National Grid USA, its
subsidiaries and affiliates shall be named as additional insured..
The Loss Payee language, as required in article Lit above, shall read as follows: National Grid
USA its subsidiaries and affiliates shall be included as a Loss Pavee as their interest may
appear_
To the extent Grantee's insurance coverage does not provide the full Additional insured coverage
as required herein, Grantee agrees to indemnify and hold harmless the Insured Entities against
any and all liability resulting from any deficiency in Grantee's insurance coverage that may be
out of compliance with this insurance requirement.
4. Waiver of Recot ery: Grantee and its insurance carrier(s) shall waive all rights of recovery
against the Insured Entities and their directors, officers and employees, for any loss or damage
covered under those policies referenced in this insurance provision,or for any required coverage
that may be self-insured by Grantee. To the extent Grantee's insurance carriers will not waive
their right of subrogation against the Insured Entities, Grantee agrees to indemnify the Insured
Entities for any subrogation activities pursued against them by Grantee's insurance carriers.
However, this waiver shall not extend to the gross negligence or willful misconduct of the Insured
Entities or their employees, sub-contractors or agents.
5, Contractors: In the event Grantee uses Contractors in connection with this Agreement, it is
expressly agreed that Grantee shall have the sole responsibility to make certain that all
Contractors are in compliance with these insurance requirements and remains in compliance
throughout the course of this Agreement, and thereafter as required. Grantee shall remain liable
for the performance of the Contractor, and such sub-contract relationship shall not relieve Grantee
of its obligations under this agreement.
Unless agreed to in writing the by the Risk Management Department of National Grid USA Service
Company, any deductible or self insured retentions maintained by any Contractor, which shall be for
the account of the Contractor, and shall not exceed S100,000. In addition, Contractor shall name
both the Grantee and National Grid USA, (including their subsidiaries, affiliates,officers and
employees), as additional insured's under the Commercial General Liability and Umbrella/Excess
Liability insurance. If requested by National Grid, Granteee shall provide National Grid with an
insurance certificate from its Contractor evidencing this coverage.
In the event any Contractor is unable to maintain all of the same insurance coverage as required in
this insurance article, Grantee agrees to indemnify and hold the Insured Entities harmless against any
and all liability resulting from any deficiency in Contractor's insurance coverage that may be out of
compliance with these insurance requirements.
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6. Insurance Certification: Upon execution of this Agreement, Grantee shall promptly provide
National Grid with(a) Certificate(s) of Insurance for all coverage's required herein at the
follo%ving address:
National Grid
Attn: Risk Management Bldg. B-3
300 Erie Boulevard West
Syracuse, NY 13202
Such certificates, and any renewals or extensions thereof, shall outline the amount of deductibles
or self-insured retentions which shall be for the account of Grantee. Such deductibles or self-
insured retentions shall not exceed S 100,000 unless agreed to in writing by the Risk Management
Department of National Grid USA Service Company, whose approval shall not be unreasonably
withheld,delayed or conditioned.
Grantee shall provide National Grid with at least 30 days prior written notice of any cancellation
or diminution of the insurance coverage required in this insurance article.
7. Insurance Obligation: If any insurance coverage is not secured, maintained or is cancelled and
Grantee fails immediately to procure other insurance as specified, National Grid has the right, but
not the obligation,to procure such insurance and to invoice Grantee for said coverage.
8. Incident Reports: Grantee shall furnish the Risk Management Department of National Grid USA
Service Company with copies of any non-privileged accident or incident report(s)(collectively,
the"Documents")sent to Grantee's insurance carriers covering accidents, incidents or events
occurring as a result of the performance of all operations, work and services to be performed by
or on behalf of Grantee under or in connection with this Agreement, excluding any accidents or
incidents occurring on Grantee property. If any of the National Grid Companies are named in a
lawsuit involving the operations and activities of Grantee associated with this Agreement,
Grantee shall promptly provide copies of all insurance policies relevant to this accident or
incident if requested by National Grid. However, in the event such Documents are deemed
privileged and confidential (Attorney Client Privilege), Grantee shall provide the relevant facts of
the accident or incident in a format that does not violate such Attorney Client Privilege,
9. Other Coverage:These requirements are in addition to any which may be required elsewhere in
this Agreement. In addition, Grantee shall comply with any governmental site specific insurance
requirements even if not stated herein.
10. Coverage Representation: Grantee represents that it has the required policy limits available, and
shall notify National Grid USA Service Company's Risk Management Department in writing
when the minimum coverage's required in this article herein have been reduced as a result of
claims payments, expenses,or both. However,this obligation does not apply to any claims that
would be handled solely with in Grantee's deductible or self-insured retention.
1 I. Responsibility: The complete or partial failure of the Grantee's insurance carrier to fully protect
and indemnify the Insured Entities per the terms of the Agreement, including without limitation,
this exhibit, or the inadequacy of the insurance shall not in any way lessen or affect the
obligations of the Grantee to the Insured Entities.
12. Coverage Limitation: Nothing contained in this article is to be construed as limiting the extent
of the Grantee's responsibility for payment of damages resulting from all operations, work and
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services to be performed by or on behalf of Grantee under or in connection with this Agreement,
or limiting, diminishing, or waiving Grantee's obligation to indemnify, defend, and save harmless
the Insured Entities in accordance with this Agreement.
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