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HomeMy WebLinkAbout20260091 Lexington Rd & Bemis Heights Rd Subdivision Modification Declaration of Restirctive Covenants (Proposed) v3 REDLINE 4.14.261 THIS DECLARATION OF RESTRICTIVE COVENANTS is made this ___ day of ______, 2026, by AAADMC Ventures, LLC (the “Declarant”) with an address of 1 Nadeau Road, Clifton Park, New York 12065. RECITALS WHEREAS, Declarant is the owner in fee of certain real property which includes wetlands, any interest in submerged lands, uplands and associated riparian/littoral rights (the “Property”) comprising 21.78 acres ± and located in the City of Saratoga Springs, Saratoga County, New York. (the “Property”). The Property is more particularly described as tax map ID numbers _________, ___________, ____________, ____________, ___________, ____________, ____________, ____________, ____________, ____________, ____________, ____________ and ___________, and isconsists of thirteen (13) separate lots (each a “Lot”) indicated on a subdivision plan recorded in the Saratoga County Clerk’s Office as Map Number ____________________ (the “Final Plat”). The Declarant’s deed to the Property is recorded in the Saratoga County Clerk’s Office at Instrument Number 2018003754; and WHEREAS, Declarant plans a development on the Property to mebe known as “Bemis Point”, which includes discharge of dredged or fill material in a manner authorized by Department of the Army Permit (“DA Permit”) number _______NAN-2022-00960-UCA issued on ___________,April 13, 2026 by the United States Army Corps of Engineers, New York District (“Corps of Engineers”, to include any successor agency) in accordance with the federal Clean Water Act, 33 U.S.C. § 1344; and WHEREAS, as a portion of the compensatory mitigation required by the DA Permit; in recognition of the continuing benefit to the Property; and for the protection of waters of the United States and scenic, resource, environmental, and general property values; Declarant agrees to place certain Restrictive Covenants on a portion of the Property (the “Restricted Property”), in order that the Restricted Property shall remain substantially in its natural condition forever; and WHEREAS, the placement of the Restrictive Covenants on the Restricted Property is also required by the City of Saratoga Springs Planning Board (the “Planning Board”) as a condition of its approval of the Declarant’s subdivision (as shown on the Final Plat) and the issuance of a wetland/watercourse/wetland permit with respect to the Property (collectively, the “City Approvals”)”); and WHEREAS, the Restricted Property comprises _____17.18± acres ± of wetlands and adjacent uplands and is shown on the map entitled _____________,Deed Restricted Area Map (the “Deed Restricted Area Map”), dated ______ and filed with the Final Plat described above; (together the full set of plans filed in the Saratoga County Clerk’s Office with respect to the development of the Property as approved by the Planning Board is referred to herein as the “Project Plans”); and WHEREAS, a metes and bounds description of the Restricted Property is attached to this Declaration as Exhibit “A” and made a part hereof, and a reduced copy of the 2 _____________Deed Restricted Area Map is attached to this Declaration as Exhibit “B” and made a part hereof; and WHEREAS, in addition to the Restrictive Covenants being placed on the Restricted Property herein, the Planning Board, as a condition of the City Approvals, requires the Declarant, inclusive of the Declarant’s successors in title with respect to each of the Lots (each a “Lot Owner”), to perform certain affirmative obligations with respect to the Lots set forth in Section 2 hereof (the “Affirmative Obligations”); and NOW, THEREFORE, for good and valuable consideration as set forth above, Declarant hereby declares that the Restricted Property shall be held, occupied, and used, and shall be transferred, conveyed, leased, or otherwise disposed of subject to the following Restrictive Covenants, Affirmative Obligations and General Conditions, which shall run with the land and be binding on all heirs, successors, assigns, lessees, other occupants and users, all of which are deemed included in the term “Declarant” below. PROHIBITIONS 1SECTION 1 – RESTRICTIVE COVENANTS A. General. There shall be no future filling, flooding, excavating, mining or drilling; no removal of natural materials; and no alteration of the topography which would materially affect the Restricted Property in any manner, except as authorized by the DA Permit. 2B. Waters and Wetlands. In addition to the general restrictions above, within the Restricted Property there shall be no draining, dredging, damming or impounding; no changing the grade or elevation, impairing the flow or circulation of waters, or reducing the reach of waters; and no other discharges or activity requiring a permit under applicable water pollution control laws or regulations, except as authorized by the DA Permit. 3C. Trees/Vegetation. On the Restricted Property, there shall be no clearing, burning, cutting or destroying of trees or vegetation, except removal or trimming of vegetation hazardous to person or property, or of timber downed or damaged due to natural disaster, or as authorized by the DA Permit. There shall be no planting or introduction of non-native or exotic species of trees or other vegetation. 4D. Disposal. There shall be no dumping of trash, waste, garbage or toxic, unsightly, hazardous or offensive material on the Restricted Property. 5E. Uses. No agricultural, animal grazing, industrial, mining, logging or commercial activity shall be undertaken or allowed on the Restricted Property. 6F. Structures/Utilities. There shall be no construction, erection or placement of buildings, billboards, utilities components or any other structures, to include trailers, mobile homes or recreational vehicles, telecommunications towers or antennas, on the Restricted Property. 3 7G. Roads. There shall be no construction of roads, trails or walkways on the Restricted Property. 8H. Pest Control. There shall be no application of pesticides or herbicides to control vegetation on the Restricted Property without prior written the approval of the Corps of Engineers. ThereFurthermore, there shall be no application of pesticides or herbicides within a fifty (50) foot buffer of the federal wetlands located on the Property but outside of the Restricted Property to the extent that such application would adversely impact, as shown on the Restricted Property. Project Plans, without prior written approval of the City of Saratoga Springs. 9I. Vehicle Use. There shall be no driving or use of any mechanical conveyance which may alter or impair the natural contour of the Restricted Property or its natural vegetation, except that motor vehicles may be used in case of emergency, for law-enforcement purposes, or to perform mitigation activity as required by the DA Permit. 10J. Other Prohibitions. Any other use of, or activity on, the Restricted Property which is or any way becomes inconsistent with the purposes of this Declaration, the preservation of the Restricted Property substantially in its natural condition, or the protection of its environmental systems, is prohibited. 11 SECTION 2 - AFFIRMATIVE OBLIGATIONS A. Beaver Dams. Notwithstanding any prohibition herein to the contrary, should a beaver dam be created on any portion of the Restricted Property which causes or is threatening to cause direct damage to property, the Declarant shall have the affirmative obligation to cause any such beaver dam to be removed to the extent necessary to prevent such damage or as otherwise may be necessary to control water levels within a wetland located on the Restricted Property. Prior to causing the removal of any offending beaver dam, the Declarant must obtain (i) the approval of the Corps of Engineers and (ii) the proper permitting therefor from the New York State Department of Environmental Conservation. The obligations contained in this section shall remain with the Declarant first named herein so long as the first named Declarant owns all of the Restricted Property. Once a portion of the Restricted Property is sold, the ownerLot Owner of the parcel of landLot containing the Restricted Property on which the offending beaver dam is located shall be solely responsible for compliance with the provisions of this section and unless the Declarant is the owner of such parcelLot, the Declarant shall have no responsibility under this section. If an offending beaver dam is located on more than one parcel of landLot, the owners of the implicated parcelsLots shall be jointly and severally liable for compliance with the provisions of this section and shall equally bear the costs associated therewith. The Declarant (or its successor it titleany Lot Owner, as specified above) shall not be responsible hereunder for any adverse consequences associated with any beaver dam not being removed due to the failure of any agency to grant a required approval or permit or as a result of any delay associated with the granting of any required approval or permit so long as required approvals and permits are timely applied for and diligently pursued. 4 B. Maintenance of Fencing and Signage. After initial installation by the Declarant of the split rail fencing and signage denoting the Deed Restricted Area in accordance with Project Plans, the Declarant (and after the sale of a Lot, each Lot Owner) shall maintain in good condition, repair and replace as needed the split rail fencing and signage located on his, her or its Lot. All replacements shall comport with the Project Plans. SECTION 3 - GENERAL CONDITIONS 1A. Other Restrictions. The Declarant represents and warrants that no restriction of record on the use of the Restricted Property, nor any presently existing future estate or interest in the Restricted Property, nor any lien obligation, covenant, limitation, lease, mortgage, or encumbrance of any kind precludes the imposition of the restrictions, covenants, obligations or agreements of this Declaration, or the maintenance of the Restricted Property in accordance herewith. 2B. Existing Conditions. The Declarant represents and warrants that no structures of any kind, to include roads, trails or walkways, and that no violations of any of these Restrictive Covenants exist on the Restricted Property at the time of execution of this Declaration. 3C. Reserved Rights. The Restrictive Covenants set forth in this Declaration are created solely for the protection of the Restricted Property, and for the consideration and values set forth above, and Declarant reserves the ownership of the fee simple estate upon the Restricted Property and all rights appertaining thereto, including the right to engage in all acts or uses not prohibited by this Declaration and not inconsistent with the conservation purposes hereof. It is expressly understood and agreed that the terms of this Declaration do not grant or convey to members of the general public any rights or ownership, entry or use of the Restricted Property or any of the Lots. 4D. Marking. The Declarant shall mark the limits of the Restricted Property in a manner approved by the Corps of Engineers, and shall maintain the marking in place so as to notify the public that the Restricted Property is an area preserved for conservation purposes. 5E. Recording. The Declarant shall record this Declaration in the records of the Saratoga County Clerk, shall insure that this Declaration is indexed against the Restricted Property, and shall provide the Corps of Engineers and the City of Saratoga Springs with a copy of this Declaration, as filed, within 45 days of execution hereof. 6F. Compliance Inspections. The Corps of Engineers, the City of Saratoga Springs and their respective authorized agents shall have the right to enter and go upon the lands of Declarant to inspect the Restricted Property and take actions necessary to verify compliance with the Restrictive Covenants set forth in this Declaration. 7G. Enforcement. This Declaration is required as a condition of the DA Permit and the City Approvals identified above. The Declarant hereby grants to the Corps of Engineers, the U.S. Department of Justice and the City of Saratoga Springs a discretionary right to enforce the Restrictive Covenants set forth interms of this Declaration in a judicial action against any person 5 or other entity violating or attempting to violate these Restrictive Covenantsany of the terms hereof; provided, however, that no violation of these Restrictive Covenantsthe terms of this Declaration shall result in a forfeiture or reversion of title. In any enforcement action, an enforcing agency shall be entitled to a complete restoration for any violation, as well as any other judicial remedy such as civil or criminal penalties or an award of agency attorneys’ fees. Nothing herein shall limit the right of the Corps of Engineers to modify, suspend or revoke the DA Permit. Additionally, any Lot Owner shall have the right to enforce, by any proceeding at law or in equity, the provisions of this Declaration, against any other Lot Owner who is in violation of the terms hereof. 8H. Notice to Government. Any permit application or request made to any governmental entity and affecting the Restricted Property shall expressly reference and include a copy (with the recording stamp) of this Declaration. 9I. Notice to Permitting Authorities. The Declarant (to include any successor Declarant) shall provide at least 60 days’ advance notification to the Corps of Engineers before any action is taken to void or modify this Declaration, including transfer of title to, or establishment of any other legal claims, over the Restricted Property. In the event of intended conveyance of any real property interest in the Restricted Property, the Declarant shall provide with such notification the full names and mailing addresses of all grantees. 10J. Property Transfers. Declarant shall include the following notice on all deeds, mortgages, plats and other legal instruments used to covey any interest in the Property (failure to comply with this paragraph does not impair the validity or enforceability of these Restrictive Covenantsthe terms of this Declaration): NOTICE: This Property is Subject to a Declaration of Restrictive Covenants Recordedrecorded at [insert book and page references, county(ies), and date of recording]. 11 K. Amendment. This Declaration may only be amended by a recorded document signed by the Declarant after written approval by the Corps of Engineers and the City of Saratoga Springs. Any amendment shall be consistent with the Corps of Engineers’ model site protection restrictions at the time of amendment. Amendment shall be allowed at the discretion of the Corps of Engineers and the City of Saratoga Springs, in consultation with resource agencies as appropriate, and then only in exceptional circumstances. Mitigation for amendment impacts will be required pursuant to Corps of Engineers mitigation policy at the time of amendment. There shall be no obligation to allow an amendment. 12L. Severability Provision. Should any separable part of these Restrictive Covenantsthis Declaration be held contrary to law, the remainder shall continue in full force and effect. IN WITNESS WHEREOF, the Declarant has duly executed this Declaration of Restrictive Covenants on the date written above. 6 [Remainder of Page Left Blank Intentionally, Signature Page Follows] IN PRESENCE OF AAADMC Ventures, LLC, Declarant By:___________________________ Name: Arthur Curto Title: Member State of New York : :ss.: County of Saratoga : On this ____ day of _______, 2026, before me, a Notary Public in and for the said State, personally appeared Arthur Curto 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 on behalf of which the individual acted, executed the instrument. ________________________________ Notary Public 7 EXHIBIT A DESCRIPTION OF RESTRICTED PROPERTY 8 EXHIBIT B ___________________DEED RESTRICTED AREA MAP ATTACHED SEPARATELY