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HomeMy WebLinkAbout20251108 Crescent Ave & Jefferson St Site Plan Modification Draft EasementRecord & Return to: John N. Vagianelis, Esq, Mazzotta & Vagianelis, P.C. 9 Washington Square Albany, New York 12205 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (this “Agreement”) is made as of this __ day of _______, 2024, by and between SARATOGA HARNESS RACING, INC. a New York Corporation, having an address at Nelson Avenue, Saratoga Springs, New York 12866 (the “Grantor”), and LIBERTY SARATOGA SPRINGS HOUSING DEVELOPMENT FUND COMPANY, INC., a New York not-for-profit 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 (the “Grantee”). Grantor and Grantee may be referenced to herein individually as a “Party” and collectively as the “Parties.” RECITALS WHEREAS, Grantor owns, in fee simple, certain real property located along Nelson Avenue in the City of Saratoga Springs, Saratoga County, New York, identified as City of Saratoga Springs SBL No. 179.-5-7, which property is more particularly described as set forth in Exhibit A attached hereto and made a part hereof (the “Grantor’s Parcel”); and WHEREAS, Grantee owns, in fee simple, certain real property, which abuts the Grantor’s Parcel, located along Crescent Avenue in the City of Saratoga Springs, Saratoga County, New York, identified as City of Saratoga Springs SBL No. 179.-5-8, which property is more particularly described as set forth in Exhibit B attached hereto and made a part hereof (the “Grantee’s Parcel” and, together with the Grantor’s Parcel, collectively, the “Parcels”); and WHEREAS, Grantee desires to obtain certain rights necessary for Grantee to construct certain improvements, as required by the City of Saratoga Springs Planning Board as part of the Grantee’s site plan review, on the Grantor’s Parcel, and to enter, pass through, and cross upon the existing private access road located on the Grantor’s Parcel and more commonly known as Bunny Lake Drive, which such private access road is more particularly described as set forth in Exhibit C attached hereto and made a part hereof (the “Access Drive”) for the purposes of an access road, pedestrian connections and related required improvements; and WHEREAS, Grantor has agreed to grant a non-exclusive easement with respect to the Access Drive, for the benefit of Grantee’s Parcel, upon the terms and conditions hereof. NOW, THEREFORE, for and in consideration of the premises, easement, conditions and encumbrances contained herein, and One Dollar ($1.00) and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereto do hereby agree as follows. ARTICLE 1 GRANT OF EASEMENT Section 1.01 Grant of Easement. Subject to the terms and conditions of this Agreement, 4879-2219-9397, v. 2 2 Grantor hereby grants to Grantee, for the benefit and use of the Grantee’s Parcel, a perpetual, non- exclusive easement and right of way over the Access Drive, in common with others, for the Grantee’s construction of improvements required by the City of Saratoga Springs Planning Board and its Site Plan Approval for the Grantee’s Parcel and vehicular bike and pedestrian access, ingress and egress to and from the Grantee’s Parcel from and to Crescent Avenue and the interior of the Grantor’s parcel, which shall also include, without limitation, access for construction equipment, fire, ambulance and other emergency response vehicles and apparatus (the “Right Of Way”). The Right Of Way shall include the right, upon reasonable notice, of reasonable access by construction equipment, vehicle, bike and on foot onto such portions of Grantor’s Parcel immediately adjacent to the Easement Area (as defined herein) for the maintenance, repair and replacement of the Right of Way. Section 1.02 Easement Area Defined. For the purposes of this Agreement, the term “Easement Area” shall mean that portion of the Grantor’s Parcel identified as the Access Drive and described in Exhibit C attached hereto and made a part hereof. Section 1.03 Easement Defined. For the purposes of this Agreement, the term “Easement” shall mean the Right Of Way. ARTICLE 2 TERM OF AGREEMENT Section 2.01 Effective Date. This Agreement shall be deemed effective upon the date set forth in the introductory paragraph herein (the “Effective Date”). Section 2.02 Benefit and Burden. The Easement shall continue in perpetuity as allowed by applicable law, shall run with the land and shall inure to the benefit of and be binding upon the Parties and their respective heirs, successors and assigns, including, without limitation, all subsequent owners of the Parcels, and any affected portion(s) thereof. Any transferee of a Parcel or any affected portion(s) thereof shall automatically be deemed, by acceptance of the title to such Parcel or any portion thereof, to have assumed any and all obligations provided herein with respect to the Easement and the real property(ies) affected thereby. Nothing herein shall be deemed to limit the right of Grantor, or its successors and assigns, to convey, mortgage, lease or otherwise transfer title or interest in the Grantor’s Parcel other than the Easement Area, as provided for herein. ARTICLE 3 USE OF EASEMENT AREA Section 3.01 General Limitations on Use. Neither Party shall, directly or indirectly, other than with the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed) at any time, other than the initial construction of any improvements required by the City of Saratoga Springs Planning Board’s Site Plan Approval for the Grantee’s Parcel or for any necessary maintenance or repair, (i) locate or store within the boundaries of the Easement Area any construction or other vehicles, equipment, materials, apparatus, goods or other property of any kind that would interfere with the construction, maintenance or use of the Access Drive; 4879-2219-9397, v. 2 3 (ii) locate or store on the Easement Area any improvements, fixtures, facilities or installations of any kind other than any required signage or related fixtures or improvements as required by the Permits; (iii) locate or store on the Easement Area any hazardous materials, wastes, oil, petroleum, chemicals or any other noxious materials; (iv) materially alter, relocate, close or impair ingress to and from the Grantee’s Parcel from and to the Easement Area; or (v) subject to the terms and conditions hereof, erect a barrier, fence, curb, wall, ditch, barricade or other structure or obstacle within the Easement Area. Section 3.02 Non-interference; Reserved Use and Enjoyment. The Parties shall utilize the Easement Area in a manner consistent with the terms and conditions herein stated, and further agree that, subject to the provisions of this Article 3, they shall not obstruct, impede, or interfere with the other Party’s use and enjoyment of the rights herein in a material manner. Consistent therewith, Grantor reserves the right to use and enjoy the Grantor’s Parcel, including the Easement Area, for any and all purposes that are not inconsistent with the easement rights granted herein and that do not unreasonably interfere with the use or enjoyment thereof by Grantee. Section 3.03 No Dedication to Public. Nothing contained herein shall be deemed to be a gift or dedication of any portion of any tract to the general public, but excepting the invitees and guests of the Grantor or Grantee connecting to public sidewalks and recreational amenities, for example, and it being the intention of the Parties hereto that this Agreement be for the exclusive benefit of the Parties hereto and their respective heirs, successors and assigns, including, without limitation, all subsequent owners of the Parcels, and that nothing herein, express or implied, shall confer upon any person or entity, other than the Parties hereto and their respective heirs, successors and assigns, including, without limitation, all subsequent owners of the Parcels, any rights or remedies under or by reason of this Agreement. ARTICLE 4 MAINTENANCE; ALTERATION AND RELOCATION Section 4.01 Maintenance. Except for any maintenance, repairs or replacement necessitated as a result of the negligence, intentional actions or omissions of Grantee or its employees, contractors, agents, consultants and representatives, the Grantor shall, at its sole cost and expense, continue to be responsible for the maintenance, repair and replacement (including, without limitation, plowing, sanding, patching, and resurfacing) of the Access Drive in a good and workmanlike manner, so as to keep the same at all times in good and functional condition in compliance with all applicable laws, ordinances, codes, rules and regulations. Grantor shall provide commercially reasonable advance notice to Grantee of any routine maintenance or repairs to the Access Drive; provided, however, that no advance notice shall be required for snow plowing and/or de-icing the Access Drive. Grantor shall be responsible for the repair of any damage to the Easement Area, the Grantor’s Parcel or improvements thereupon, caused by the negligence or willful conduct of Grantor or Grantor’s employees, contractors, agents, consultants and representatives. Section 4.02 Alteration. Neither Party shall, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed): (i) materially alter, materially relocate, close or otherwise materially impair ingress and egress from the Parcels 4879-2219-9397, v. 2 4 via the Easement Area; (ii) make any adverse change to the methods of ingress and egress, direction of traffic, lighting or curbing within the Access Drive; or (iii) make any changes (either temporary or permanent) to the physical layout of the Access Drive which materially and adversely affect the access, ingress to, or egress from, the respective Parcels from and to Crescent Avenue. ARTICLE 5 INSURANCE; INDEMNIFICATION Section 5.01 Requirements. Grantee and Grantor shall, at all times that the Easement remains in effect, maintain comprehensive general liability insurance against bodily injury and property damage with a per occurrence limit of not less than One Million Dollars ($1,000,000) on the Easement Area. The contracts of insurance required by this Section 5.01 shall contain standard loss payable clauses in favor of the Grantor and Grantee, respectively, and shall name the Grantor and Grantee, respectively, as an additional insured on a non-contributing basis. Section 5.02 Evidence. Grantee and Grantor, respectively, shall, promptly after request by Grantor or Grantee, provide copies of policies and endorsements evidencing the insurance required hereby. Section 5.03 Non-cancellation. The contracts of insurance required by this Article 5 shall contain a provision requiring thirty (30) days advance written notice to Grantor and Grantee, respectively, of any proposed cancellation of such insurance. Section 5.04 Indemnification. (a) Grantee agrees to indemnify, defend and hold Grantor harmless from and against any and all suits, actions, losses, liabilities, claims, demands, damages, costs and expenses (including but not limited to reasonable attorneys’ fees), liens, charges or encumbrances (collectively, the “Expenses”) resulting from or relating to (i) Grantee’s breach or violation of any term or condition hereof, or (ii) the negligence, intentional actions or omissions of Grantee or Grantee’s contractors, agents, consultants and representatives, arising from injury to person or property as a result of or in connection with Grantee’s exercise of its rights hereunder, or Grantee’s breach hereof. (b) Grantor agrees to indemnify, defend and hold Grantee harmless from and against any and all Expenses resulting from or relating to (i) Grantor’s breach or violation of any term or condition hereof, or (ii) the negligence or intentional actions or omissions of Grantor or Grantor’s employees, contractors, agents, consultants and representatives arising from injury to person or property as a result of or in connection with Grantor’s exercise of its rights hereunder, or Grantor’s breach hereof. (c) Any Party that defaults or fails to fulfill its obligations under this Agreement shall bear the costs and reasonable attorney’s fees of the non-defaulting Party to obtain monetary damages or otherwise enforce the terms of this Agreement. ARTICLE 6 4879-2219-9397, v. 2 5 DEFAULT Section 6.01 Default. In the event of any breach of this Agreement by any Party, the non-breaching Party shall have the right to exercise any and all rights and remedies provided at law or in equity, including, without limitation, (a) the right to an injunction or other appropriate equitable relief in order to restrain such breach, without the requirement of showing or proving actual damages to the non-breaching Party, and (b) the right (but not the obligation) to take any and all such actions, and to otherwise exercise self-help, in order to cure or remedy such breach, in which case the breaching Party shall pay upon demand all costs and expenses incurred in connection therewith. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND EXCEPT AS SET FORTH IN SECTION 5.04(b) OF THIS AGREEMENT, IN NO EVENT SHALL GRANTOR OR GRANTEE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING LOSS OF GOODWILL OR LOSS OF PROFITS. ARTICLE 7 QUIET ENJOYMENT Section 7.01 Quiet Enjoyment. Subject to the terms and conditions hereof, the Parties covenant and agree that, at all times during the term of this Agreement, the other Parties’ respective use and enjoyment of the Easement Area pursuant hereto shall not be disturbed, altered or impaired in any material manner by any act or omission of such Party, nor of any person or entity acting by, through or under the authority of such Party. ARTICLE 8 MISCELLANEOUS Section 8.01 Modification and Termination. This Agreement may be modified or terminated only by the mutual agreement of all Parties hereto or owning all affected Parcels (or any portion thereof) affected hereby, their successors and assigns, evidenced by a writing in recordable form. Section 8.02 Entire Agreement. This Agreement, including the recital sets forth above and all exhibits hereto, all of which are incorporated herein and shall be deemed a material part hereof, constitutes the entire agreement between the Parties hereto with respect to the transactions contemplated herein, and it supersedes all prior discussions, understandings or agreements between the parties hereto. Section 8.03 Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to such State’s conflict of law principles, and any dispute arising hereunder, except as provided for herein, shall be litigated in the Supreme Court, Saratoga County, New York. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE USE OF THE EASEMENT AREA. 4879-2219-9397, v. 2 6 Section 8.04 Waiver. The waiver of a breach of one covenant or condition of this Agreement shall not be deemed a waiver of the breach of others, or of subsequent breach of a covenant previously waived. The Parties hereby waive the defense of laches to any breach of any covenant or provision of this Agreement. Section 8.05 Notice. Any notice or other communication (“Notice”) required or permitted to be given hereunder shall be in writing and shall be sent to each Party at their addresses set forth above, or to such other address as a Party shall designate in a writing delivered pursuant to this Section, by (a) hand delivery, (b) express overnight delivery service, or (c) certified mail, postage prepaid, return receipt requested. Any such notice shall be deemed to be given and received and shall be effective (y) on the date on which the notice is delivered, if notice is given by hand delivery, or (z) on the date on which it is received or rejected as reflected by a receipt if given by overnight delivery service or United States mail, addressed and sent as aforesaid. Section 8.06 Invalidity. Should any provision of this Agreement be deemed invalid or unenforceable, the remainder of the Agreement shall not be affected, and each term and condition shall be valid and enforceable to the extent permitted by law. Section 8.07 Negotiated Agreement. The Parties to this Agreement have participated in the negotiation and preparation hereof, and, accordingly, this Agreement shall not be more strictly construed against any one of the Parties hereto. Section 8.08 Joint Venture. The Parties hereto shall not be deemed, in any way or for any purpose, to have become, by the execution of this Agreement, or any action taken under this Agreement, partners, partners in business or otherwise, or a member of any joint enterprises with one another. Further, nothing in this Agreement shall be construed to create any joint venture between the Parties. Section 8.09 Captions. The captions contained herein are for convenience and reference only and shall not be deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms and provision to which they relate. Section 8.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Section 8.11 Recording Easement. This Agreement shall be recorded by Grantee in the Saratoga County Clerk’s Office at Grantee’s cost and expense. Section 8.12 Successors and Assigns. The rights and obligations of the Parties pursuant to this Agreement will and shall be binding upon and shall inure to the benefit of the successors, heirs, executors, administrators, and assigns of the Parties and shall run with the lands hereby encumbered. [SIGNATURE PAGE FOLLOWS] 4879-2219-9397, v. 2 7 IN WITNESS WHEREOF, the Parties hereto have duly executed this Easement Agreement on the day and year first set forth above. GRANTOR: SARATOGA CASINO HOLDINGS, LLC By: Name: Its: STATE OF NEW YORK ) ) ss.: COUNTY OF ) On the ____ day of in the year 2024, 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(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 4879-2219-9397, v. 2 8 IN WITNESS WHEREOF, the Parties hereto have duly executed this Easement Agreement on the day and year first set forth above. GRANTEE: LIBERTY SARATOGA SPRINGS HOUSING DEVELOPMENT FUND COMPANY, INC. By: Liberty Affordable Housing Inc., its Sole Member By:________________________________________ Name: Randell J. Denton Title: Executive Director STATE OF NEW YORK ) ) ss.: COUNTY OF ) On the ____ day of in the year 2024, 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(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 4879-2219-9397, v. 2 9 EXHIBIT A Description of Grantor’s Parcel 4879-2219-9397, v. 2 10 EXHIBIT B Description of Grantee’s Parcel 4879-2219-9397, v. 2 11 EXHIBIT C Description of Access Drive