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HomeMy WebLinkAbout20230032 Crescent & Jefferson Site Plan CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT, made this _____ day of ____________, 2024, made by LIBERTY SARATOGA SPRINGS HOUSING DEVELOPMENT FUND COMPANY, INC., a New York not-for­profit corporation organized under Article XI of the New York Private Housing Finance Law, having an address at 117 West Liberty Street, Suite 3, Rome, New York 13440 and LIBERTY SARATOGA SPRINGS LLC, a New York limited liability company, having an address c/o Liberty Affordable Housing Inc., 117 West Liberty Street, Suite 3, Rome, New York 13440 (collectively, the "Grantor"), in favor of the CITY OF SARATOGA SPRINGS, NEW YORK, a New York municipal corporation, having its principal office located at 474 Broadway, Saratoga Springs, New York 12866 (“Grantee”). W I T N E S S E T H: WHEREAS, Grantor is the owner of all that certain real property located in the City of Saratoga Springs, County of Saratoga and State of New York described in Exhibit “A” attached hereto and made a part hereof (the “Parcel”); and WHEREAS, as a condition to granting approval for development of a portion of the Parcel, the Planning Board of the City of Saratoga Springs, New York has required, and Grantor has agreed, that a certain portion of the Parcel identified as “Easement for Open Space” on that certain site plan drawing entitled “_________________ Site Plan Application” approved by the City of Saratoga Springs Planning Board on ______________ ____, 2023, and filed in the Saratoga Springs City Engineer’s office attached hereto as Exhibit “B” (as the same may be amended from time to time and filed in the said City Engineer’s Office) (such portion being the "Protected Property"), will be set aside as open space and used for the purposes of passive recreation with such improvements as Grantee may from time to time determine to develop, subject to the Grantor’s approval and any conditions and limitations hereof; and WHEREAS, Grantor has agreed to place restrictions on the Protected Property as part of its transaction with Grantee, while retaining the use of the Protected Property in common with the public; and WHEREAS, the State of New York has enacted Article 49, Title 3 of the Environmental Conservation Law (as the same may be amended, "Article 49") to provide for the limitation and restriction of development, management and use of real property by Conservation Easement; NOW, THEREFORE, in consideration of the facts above recited and of the mutual covenants, terms, conditions and restrictions herein contained and other good and valuable consideration, Grantor does hereby grant and convey to Grantee, its successors and assigns forever, a Conservation Easement pursuant to Article 49, in perpetuity consisting of the terms, covenants and obligations on Grantor's part to be observed and performed and Grantee's rights to monitor and enforce same, all as hereinafter set forth, over and across the Protected Property (the "Easement"). Purpose. The purpose of this Easement is to grant to Grantee certain rights to restrict the use and development of the Protected Property to protect in perpetuity the use of the Protected Property for the purpose of open space and a passive recreation and through such protection, enhance, preserve and protect said Protected Property for the use and enjoyment of the public. Implementation. This Easement shall be implemented by limiting and restricting the development, management and use of the Protected Property in accordance with provisions of this Easement. All rights to develop or use the Protected Property that are prohibited by or inconsistent with this Easement are extinguished, and cannot be used to transfer development rights to other land, or to permit increased development density or increased natural resource use or extraction on other land. Prohibited Uses and Practices. The following uses and practices are inconsistent with the purpose of this Easement and shall be prohibited upon or within the Protected Property, except to the extent permitted by Paragraph 4 hereof: Any commercial, industrial or residential uses of the Protected Property. The division or subdivision of the Protected Property. The construction, erection, maintenance or replacement of any buildings, roads, roadways, signs (other than informational or directional signs), billboards, satellite dishes, fences, docks or other structures or improvements of any kind or nature whatsoever on or over the Protected Property except solely the Permitted Improvements as defined in Paragraph 4 hereof. The dumping or storage of ashes, trash, waste, garbage and sawdust on any portion of the Protected Property, except such storage of the aforementioned material as may be normally and reasonably incidental to uses permitted hereunder. No chemical wastes or other hazardous waste materials may be dumped or stored on the Protected Property. Dredging, mining, excavation, filling or other use of the Protected Property, which is detrimental to drainage, water quality, flood control or the fish and wildlife attributes of the Protected Property; subject, however, to Grantee's right to build, install, maintain, repair and replace the Permitted Improvements (hereinafter defined) in accordance with the provisions hereof and all applicable laws and governmental regulations. Disturbances of the Protected Property's surface topography, including but not limited to filling, excavation, grading, removal of topsoil, sand, gravel, rocks or minerals, or changing of the topography of the land in any manner except as may be reasonably necessary for the construction, erection, installation, maintenance or replacement of any of the Permitted Improvements in accordance with the terms hereof or as may be normally and reasonably incidental to any of the uses of the Protected Property expressly permitted hereby. Except for trees which are dead or which present a hazard to persons using the Protected Property, cutting or removal of trees on the Protected Property, except as such clearing is necessary as relates to the Permitted Improvements. Except as may be required for emergency purposes or for necessary management actions of Grantee or for the construction and maintenance of the Permitted Improvements or public utilities necessary for use of the remainder the Parcel, the use of off-road motorized vehicles, including, without limitation, automobiles, all-terrain vehicles and motorcycles. Affirmative Rights Conveyed; Grantee Obligations. Grantee shall have the right to invite and permit members of the public to have access to the Protected Property solely for passive recreational purposes. Subject to the limitations set forth in this Easement, at its sole cost and expense, Grantee shall have the right, but not the obligation, (a) to enter upon and make improvements, including, but not limited to, the installation of water, sewer and other utility improvements to facilitate use and enjoyment of the Protected Property for passive recreation (“Permitted Improvements”) and (b) to manage and improve the land and vegetation by landscaping, including planting, cultivation, trimming and removal of grass, trees, shrubs and flowers for the purpose of enhancing the Protected Property. Grantee shall procure and maintain all permits and approvals from governing authorities with jurisdiction necessary in connection with the construction, installation and maintenance of any Permitted Improvements or its other activities on the Protected Property, including, without limitation, permits and approvals from the New York State Department of Environmental Conservation and/or the United States Army Corps of Engineers with respect to alteration of or improvements to any portions of the Protected Property consisting of regulated wetlands or regulated wetland buffer areas. Grantee agrees to maintain any and all Permitted Improvements installed at or on the Protected Property pursuant to this Paragraph 4 in a reasonably safe condition. Grantee agrees to defend, indemnify and to hold Grantor and its members, officers and agents harmless from and against any and all claims and liability arising out of or resulting from installation and use of Permitted Improvements and/or its other activities on or with respect to the Protected Property pursuant to this Easement. For the avoidance of doubt, the obligations of Grantee under the immediate prior sentence shall not include claims and liability arising out of or resulting from the actions or omissions of Grantor on the Protected Property, or claims made by persons invited onto the Protected Property by Grantor. Grantor shall have a right of prior review with respect to any plans for development, construction or installation of Permitted Improvements on the Protected Property for compatibility with the use of the remainder of the Parcel. Grantee agrees to regulate use and access of the Protected Property by the public in a manner substantially the same as regulation of other passive recreation park property of Grantee similarly situated. Retained Rights of Grantor. Subject to the purpose and provisions of this Easement, Grantor reserves and retains all customary rights of ownership in the Protected Property, to the extent such rights are exercised in a manner which is not inconsistent with the use of the Protected Property for passive recreation, nor inconsistent with the purpose of the Conservation Easement set forth herein, including, but not limited to: The right to access, and to allow residents living on the Parcel to access, the Protected Property and any Permitted Improvements and to use the same in a manner consistent with public use allowed hereunder; and The right to use the Protected Property as collateral for subsequent borrowings, provided that any mortgage or lien arising from such borrowing shall be subordinated to this Easement. The right to install, access, maintain, repair and replace any and all water, sewer and/or other utility lines which may be located upon the Protected Property for the sole benefit of the Parcel. The right to install, access, maintain, repair and replace any improvements required to comply with any land use approval or condition of approval issued by the City of Saratoga Springs Planning Board affecting the Parcel, including, but not limited to, wetland measures, lighting and sidewalks/walkways. Enforcement Rights of Grantee. Grantor acknowledges and agrees that Grantee's remedies at law for any violation of this Easement are inadequate. Therefore, in addition to, and not in limitation of, any other rights of Grantee hereunder or at law or in equity, in the event any breach, default or violation of any term, provision, covenant or obligation on Grantor's part to be observed or performed pursuant to this Easement is not cured by Grantor within thirty (30) days of any notice thereof by Grantee (which notice requirement is expressly waived by Grantor with respect to any such breach, default or violation which requires immediate action to protect the purpose of this Easement) Grantee shall have the right (a) to institute a suit to enjoin or cure such breach, default or violation by temporary and/or permanent injunction, or (b) to seek or enforce such other legal and/or equitable relief or remedies as Grantee deems necessary or desirable to ensure compliance with the terms, conditions, covenants, obligations and purpose of this Easement; provided, however, that any failure, delay or election to so act by Grantee shall not be deemed to be a waiver or a forfeiture of any right or available remedy on Grantee's part with respect to such breach, default or violation or with respect to any other breach, default or violation of any term, condition, covenant or obligation under this Easement. Acts Beyond Grantor’s Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Protected Property resulting from causes beyond Grantor’s control, including, without limitation, natural processes, by force majeure, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Protected Property or the remainder of the Parcel resulting from such causes. Grant in Perpetuity. The provisions of this Easement shall run with and be a burden upon the Protected Property in perpetuity and shall be binding on Grantor and Grantee and their respective successors and assigns, and any party entitled to possession or use of the Protected Property while such party is entitled to such possession or use. Any successor or assign of Grantee shall be a public body or not-for-profit conservation organization within the meaning of Article 49 (a “Qualified Organization”) and shall expressly assume the obligation to carry out the conservation purpose for which this Easement is granted and the other obligations of Grantee hereunder. If Grantee or any successor or assign ceases or fails (i) to enforce this Easement, (ii) to exist, or (iii) to be a Qualified Organization, and upon the occurrence of such event, fails to assign all its rights and interest in the Protected Property, and delegate all its responsibilities under this Easement to a Qualified Organization, then the rights and interest of Grantee under this Easement shall be vested in another Qualified Organization in accordance with a cypres proceeding of a Court of competent jurisdiction. Amendment. This Easement can be modified only in accordance with the common and statutory law of the State of New York applicable to the modification of easements or covenants running with the land. Grantor and Grantee recognize that circumstances could arise which would justify the modification of certain of the restrictions contained in this Easement including requirements imposed on Grantor pursuant to licensing procedures or any authorized governmental licensing or permitting agency. To this end, Grantee and Grantor shall mutually have the right, in their sole discretion, to agree to amendments to this Easement which are not inconsistent with the purpose of the Easement provided, however, that the parties shall have no right or power to agree to any amendments hereto that would result in this Easement failing to qualify as a valid conservation easement under Article 49, any regulation issued pursuant thereto, and provided further that Grantee shall agree to the modification of this Easement to conform to such licensing procedures or any other authorized governmental licensing or permitting agency. Notice. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given (a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid), three business days after mailing, or (c) if by Federal Express or other reliable overnight courier service, on the next business day after delivered to such courier service. All notices shall be sent to the addresses as set forth below: If to Grantors: Liberty Saratoga Springs LLC 117 West Liberty Street, Suite 3 Rome, New York 13440 and Liberty Saratoga Springs Housing Development Fund Company, Inc. 117 West Liberty Street, Suite 3 Rome, New York 13440 With a copy (which shall not constitute notice) to: Mazzotta & Vagianelis, P.C. 9 Washington Square Albany, New York 12205 Attention: John N. Vagianelis, Esq. and Ferradino Firm, PLLC 63 Putnam Street, Suite 202 Saratoga Springs, New York 12866 If to Grantee: City of Saratoga Springs Planning Department 474 Broadway Saratoga Springs, New York 12866 With a copy (which shall not constitute notice) to: City of Saratoga Springs Office of City Attorney 474 Broadway Saratoga Springs, New York 12866 or to such other addresses as they may designate by notice given in accordance with this Paragraph and to either of their attorneys as they may from time to time designate by notice given in accordance with this Paragraph. Notice shall be deemed given and received as of the date of its personal delivery or the date of its mailing in accordance with this Paragraph. Cooperation Agreement. Grantor and Grantee agree to cooperate to comply with the provisions of Article 49, and the Regulations promulgated pursuant thereto, so that this Easement will qualify, as a perpetual conservation restriction, thereunder. Representations. Grantor represents and warrants to Grantee that Grantor is seized of the Parcel and the Protected Property in fee simple. Grantor and Grantee each hereby represent and warrant to each other that (a) it has all necessary power and authority to execute and deliver this Easement and to carry out its obligations hereunder, and (b) the execution and delivery of this Easement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite approvals. Miscellaneous. This Easement shall be binding on the parties and their respective successors and assigns. The terms "Grantor" and "Grantee", wherever used herein, and any pronouns used in place thereof, shall mean and include their respective successors and assigns. If any provision of this Easement or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Easement and the application of such provisions to persons or circumstances other than those as to which it is found to be invalid shall not be affected thereby. In enforcing its rights hereunder with respect to a breach, default or violation of this Easement, Grantee shall take into account the reasonableness of requiring Grantor to cure the same and the time required to restore the Protected Property under the relevant circumstances, including but not limited to the season of the year and the accessibility of the Protected Property to Grantor. All captions set forth herein are for convenience of reference only, and shall in no event be construed to limit, enlarge or modify any substantive provision of this Easement. The interpretation and performance of this Easement shall be governed by the laws of the State of New York, excepting conflicts of law principles thereof. Each party hereby irrevocably submits to the jurisdiction of any New York State Supreme Court sitting in the County of Saratoga, New York over any action or proceeding arising out of or relating to this Easement, and each party hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Court. This instrument sets forth the entire agreement between the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with Paragraph 9. Regardless of any contrary rule of construction, no provision of this Conservation Easement shall be construed in favor of one of the parties because it was drafted by the other party or the other party's agent or attorney. No alleged ambiguity in this Conservation Easement shall be construed against the party who drafted it, or whose agent or attorney drafted it. If any provision of this Conservation Easement is ambiguous or shall be subject to two or more interpretations, one of which would render that provision invalid, then that provision shall be given such interpretation as would render it valid and be consistent with the purpose of this Conservation Easement. Any rule of strict construction that would limit the breadth of the restrictions on use of the Protected Property shall not apply in the construction or interpretation of this Conservation Easement and this Conservation Easement shall be interpreted broadly to affect its purpose as intended by the parties. The parties intend that this Conservation Easement, which is by nature and character primarily negative in that Grantor has restricted and limited their right to use the Protected Property, shall be construed at all times and by all parties to effectuate its purpose. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Protected Property, as such substances or wastes are defined by applicable law, and thereby promises to indemnify Grantee against, and hold Grantee harmless from, any and all loss, cost, claim (without regard to its merit), liability or expense (including reasonable attorneys’ fees) arising from or with respect to any release of hazardous waste or violation of environmental laws, except to the extend caused by Grantee, or Grantee’s agents or invitees. If at any time after the effective date of this Conservation Easement there occurs a release in, on or about the Protected Property of any substance now or hereafter defined, listed or otherwise classified as hazardous, toxic, polluting or otherwise contaminating, Grantor agrees to take all steps necessary to assure its effective containment and remediation, including any cleanup. This Easement does not constitute a dedication of parklands. While this easement may provide for public access to the Protected Property if and when such lands are of appropriate condition for such purpose, the parties do not hereby create any third-party beneficiaries and even if public access provides a public benefit, no person, firm, entity or corporation other than those executing this Easement, together with their respective successors or agents, shall have any right to enforce the provisions hereof. To the extent that any Court of competent jurisdiction determines that the public is a beneficiary of this Easement, the public’s rights shall be exercised solely by Grantee and Grantee’s decisions whether, when and how to enforce any provisions of this Easement shall be final and shall constitute an exercise of legislative discretion. [Signature and Acknowledgment Pages Follows] IN WITNESS WHEREOF, Grantor has executed and delivered this Deed of Conservation Easement as of the date first set forth above. GRANTOR: LIBERTY SARATOGA SPRINGS HOUSING DEVELOPMENT FUND COMPANY, INC. By: Liberty Affordable Housing Inc., its Sole Member By:________________________________________ Name: Randell J. Denton Title: Executive Director LIBERTY SARATOGA SPRINGS LLC By: Liberty Affordable Housing Inc., its Sole Member By:________________________________________ Name: Randell J. Denton Title: Executive Director Acknowledged and Accepted: GRANTEE: CITY OF SARATOGA SPRINGS, NEW YORK By: _______________________ Name: Ronald Kim Title: Mayor [Acknowledgment Page Follows] ACKNOWLEDGMENTS GRANTOR: STATE OF NEW YORK ) ) SS.: COUNTY OF ALBANY ) On the day of in the year 2024, before me, the undersigned, personally appeared RANDELL J. DENTON, 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 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. / Notary Public GRANTEE: STATE OF NEW YORK ) ) SS.: COUNTY OF ___________ ) On the day of in the year 2024, before me, the undersigned, personally appeared RONALD KIM, 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 EXHIBIT A Legal Description EXHIBIT B Approved Site Plan (Attached)