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Waterline Easement Agreement WATERLINE EASEMENT AGREEMENT-2021 BETWEEN CLEAR BROOK, LLC AND TOWN OF QUEENSBURY TAX MAP PARCEL NO. 316.14-1-16 This Waterline Easement Agreement- 2021 is made this day of February, 2021 between CLEAR BROOK, LLC (hereinafter referred to as "Clear Brook"), having a place of business at 7 Daniels Avenue, Adams, Massachusetts 01220, and the TOWN OF QUEENSBURY, a municipal corporation, having its principal place of business at Bay and Haviland Road, Queensbury, New York 12804 (hereinafter referred to as the "Town"). RECITALS A. WHEREAS Clear Brook is the owner of lands in the Town of Queensbury, Warren County, New York located to the east of Big Boom Road, a Town road, and identified on the Town of Queensbury tax maps as Tax Map Parcel No. 316.14-1-16 by virtue of a deed dated December 17, 2018 from Excess Lands LLC and recorded in the Warren County Clerk's Office on December 27, 2018 in Book 5867 of Deeds at page 165 as Instrument#2018-8436 (hereinafter the "Property"); and B. WHEREAS, Clear Brook is the successor in interest to the Property from Excess Lands LLC, and Excess Lands LLC is the successor in interest to Finch, Pruyn & Company, Inc. by virtue of a deed dated June 18, 2007 and recorded in the Warren County Clerk's Office on June 21, 2007 in Book 3301 of Deeds at page 1; and -1- C. WHEREAS, the Property is subject to a non-exclusive "Waterline Easement Agreement between Finch, Pruyn & Company, Inc. and Town of Queensbury" originally dated May 23, 2001 and recorded in the Warren County Clerk's Office on August 2, 2001 in Liber 1225 of Deeds at page 169, and subsequently revised by Grant dated August 22, 2001 and recorded in the Warren County Clerk's Office on January 15, 2002 in Liber 1247 of Deeds at page 268 (hereinafter the "Waterline Easement - 2001"); and D. WHEREAS, pursuant to the terms and conditions of the Waterline Easement - 2001, the Town constructed, installed and now maintains a road, a continuation of the road over a causeway (or bridge) constructed over a canal that runs through Lot 14 (hereinafter the "Easement Road" and / or the "Causeway"), a fire hydrant, and an underground waterline running through a pipe within the boundaries of the Waterline Easement - 2001; and E. WHEREAS, the Waterline Easement - 2001 is more specifically located within that portion of the Property now more particularly identified as Lot 14 of the Clear Brook Subdivision approved by the Town of Queensbury Planning Board on September 15, 2020 (hereinafter "Lot 14"); and F. WHEREAS, Lot 14 is in a waterfront residential zone under the Town of Queensbury zoning ordinance; and G. WHEREAS, access to Lot 14 from Big Boom Road, a Town Road, is over the Easement Road and Causeway, and constitutes the driveway to those portions of Lot 14 located east and west of the Causeway (hereinafter also referred to as the "Lot 14 Driveway"); and -2- H. WHEREAS, to reflect the construction of the Easement Road and Causeway, Clear Brook and the Town desire to extinguish the Waterline Easement - 2001 and replace it with this Waterline Easement Agreement—2021 in accordance with the terms and conditions as hereinafter set forth; NOW, THEREFORE, the parties agree as follows: 1. EXTINGUISHMENT OF WATERLINE EASEMENT - 2001. By the execution and recording of this Waterline Easement Agreement- 2021, the Town and Clear Brook extinguish, cancel, and declare null and void the Waterline Easement - 2001 as set forth in the following Grants: (a.) Waterline Easement Agreement between Finch, Pruyn & Company, Inc. and Town of Queensbury dated May 23, 2001 and recorded in the Warren County Clerk's Office on August 2, 2001 in Liber 1225 of deeds at page 169. (b.) Grant dated August 22, 2001 and recorded in the Warren County Clerk's Office on January 15, 2002 in Liber 1247 of deeds at page 268. 2. GRANT OF EASEMENT. Clear Brook hereby grants to the Town the following described non-exclusive easement located in the Town of Queensbury, County of Warren, and State of New York, and more particularly described as follows: BEGINNING at a point at the intersection of the division line between the lands now or formerly of Finch, Pruyn and Company, Inc. as described in Book 665 of Deeds at Page 577 on the Northeast and the lands now or formerly of Carl R. DeSantis and Barbara W. DeSantis as described in Book 691 of Deeds at Page 673 on the Southwest with the Easterly boundary of Big Boom Road and runs thence from said point of -3- beginning in a generally Northerly direction along the Easterly boundary of Big Boom Road along a curve to the left having a radius of 94.00 feet, a chord bearing of North 02 deg. 42 min. 52 sec. West and a chord distance of 56.07 feet, an arc length of 56.93 feet to a point; thence through the lands now or formerly of Finch, Pruyn and Company, Inc. the following eleven (11) courses: 1) North 68 deg. 33 min. 07 sec. East 9.55 feet to a point; 2) thence South 24 deg. 06 min. 49 sec. East 184.95 feet to a point; 3) thence South 74 deg. 02 min. 20 sec. East 155.67 feet to a point of curvature; 4) in a generally Easterly direction along a curve to the left having a radius of 479.71 feet, a chord bearing of South 80 deg. 45 min. 06 sec. East and a chord distance of 109.26 feet, an arc length of 109.49 feet to a point of tangency; 5) thence South 84 deg 48 min. 40 sec. East 143.32 feet to a point; 6) thence South 84 deg. 07 min. 35 sec. East 44.69 feet to a point; 7) thence South 82 deg. 18 min. 06 sec. East 106.22 feet to point of curvature; 8) thence in a generally Easterly direction along a curve to the left having a radius of 348.70 feet, a chord bearing of North 81 deg. 50 min. 56 sec. East and a chord distance of 173.53 feet, an arc length of 175.37 feet to a point of tangency; 9) thence North 68 deg. 23 min. 34 sec. East 933.90 feet to a point; 10) thence North 61 deg. 17 min. 06 sec. East 158.93 feet to a point; and 11) thence North 83 deg. 47 min. 06 sec. East 43 +/- feet to a point on the Northwesterly bank of the Hudson River at its low water mark; thence in a generally Southwesterly direction along the said Northwesterly bank of the Hudson River as it winds and turns 30 +/- feet to a point, the tie for the above last described course being -4- South 28 deg. 33 min. 12 sec. West 36.52 feet, said point being distant North 33 deg. 34 min. 15 sec. East 2,087.73 feet from a concrete monument found at the Southwesterly corner of lands now or formerly of Finch, Pruyn and Company, Inc. as described in Book 665 of Deeds at Page 577; thence through the lands now formerly of Finch, Pruyn and Company, Inc. The following nine (9) courses: 1) South 83 deg. 47 min. 06 sec. West 16 +/- feet to a point; 2) thence South 61 deg. 17 min. 06 sec. West 154.82 feet to a point; 3) thence South 68 deg. 23 min. 34 sec. West 935.52 feet to a point of curvature; 4) in a generally Westerly direction along a curve to the right having a radius of 378.70 feet, a chord bearing of South 81 deg. 53 min. 50 sec. West and a chord distance of 188.59 feet, an arc length of 190.59 feet to a point of tangency; 5) thence North 82 deg. 18 min. 06 sec. West 106.22 feet to a point; 6) thence North 84 deg. 07 min. 35 sec. West 44.03 feet to a point; 7) thence North 84 deg. 48 min. 40 sec. West 142.50 feet to a point of curvature; 8) in a generally Westerly direction along a curve to the right having a radius of 509.71 feet, a chord bearing of North 80 deg. 42 min. 43 sec. West and chord distance of 115.48 feet, an arc length of 115.73 feet to a point of tangency; and 9) thence North 74 deg. 02 min. 20 sec. West 169.68 feet to the above first mentioned division line between the lands now or formerly of Finch, Pruyn and Company, Inc. on the East and the lands now or formerly of Carl R. DeSantis and Barbara W. DeSantis on the West; thence North 24 deg. 06 min. 49 sec. West along the said above first mentioned division line 147.16 feet to the point or place of beginning. -5- Being a strip of land 30 feet in width generally 15 feet each side of a water main as installed/constructed and as shown on a map entitled "Plan/Profile Moreau Connector Town of Queensbury," Town of Queensbury, Warren County, New York," prepared by C.T. Male Associates, P.C., dated July 7, 2000, last revised August 13, 2001, Sheet numbers PP2 (Sheet 3 of 11) and PP3 (Sheet 4 of 11). 3. NON-EXCLUSIVE EASEMENT. Clear Brook and the Town acknowledge that this Waterline Easement Agreement - 2021 creates a non-exclusive easement and shall not affect in any way the right of Clear Brook or its successors and assigns to enter upon and use the lands within Lot 14 of the Clear Brook Subdivision by any means and for all lawful purposes, so long as such does not interfere with the use or maintenance of the Easement by the Town. Notwithstanding the foregoing, neither Clear Brook nor its successors in interest shall permit any other underground utility to be placed within 10 feet of the Town's waterline. In addition, Clear Brook and its successors in interest shall not authorize or permit the placement of any permanent above ground structure within the bounds of the Easement area. For purposes of this provision only, neither pavement nor above ground utility poles shall be considered "structures". 4. UPGRADES AND/OR IMPROVEMENTS: NO TOWN LIABILITY. In furtherance of this agreement, the Town shall have no obligation or responsibility for any improvements made to the Easement Road and/or Driveway by Clear Brook, nor shall the Town have any liability for damage to any improvements to the Driveway made by Clear Brook or the present or future owners of Lot 14. -6- (a). Road Easement/Drivewav Upgrade and/or Pavement. Clear Brook shall have the right to upgrade and improve the Road Easement/Driveway, but in the event that Clear Brook or its successors and assigns desires to upgrade the Driveway with gravel or stone or pavement, Clear Brook shall first consult with the representatives of the Town in order to take into consideration the existence and protection of the rights created pursuant to this Waterline Easement Agreement - 2021 and the piping and equipment installed within the Easement area. However, in the event of such improvements, if the Town thereafter excavates and damages any such improvement while maintaining and repairing the infrastructure within the Easement area, the Town shall have no duty to repair the Clear Brook improvements to the Driveway. For example, if the Town digs up any gravel, stone, or pavement placed in the Driveway by Clear Brook, it shall have no duty or obligation to replace or repair the improvements in kind, but it shall have the obligation to immediately restore the Driveway to a condition allowing for safe passage upon the completion of its work. Improvements to the Driveway by Clear Brook shall not be deemed to be an interference with the use of the Easement by the Town. (b.) Utilities. Before providing Lot 14 with modern utilities including but not limited to electric, telephone, fiberoptic, internet, etc. Clear Brook will consult with the town as to the optimum location for such utilities so as to avoid conflicts between the placement of utilities and the Town's Waterline -7- to the extent practicable. However, with the exception of the Town's water line, any utilities that hereafter traverse the Causeway shall be installed overhead at a height not less than 14.5 feet. 5. MAINTENANCE, REPAIR AND OPERATION OF THE EASEMENT AREA. The Town shall have the right to maintain, repair and operate its improvements within the Easement area and the improvements thereon at its sole cost and expense for its own purposes. 6. SAFETY MEASURES FOR EASEMENT ROAD AND CAUSEWAY. For the protection of the Easement area and infrastructure contained therein, the parties agree as follows: (a.) Gate. Clear Brook agrees to the placement of the existing gate on the Easement Road/ Driveway in the vicinity of Big Boom Road, which existing gate is currently maintained by the Town so as to prevent the Easement Road from becoming a public access to Lot 14, and which gate is for the mutual benefit of the Town and Clear Brook, and each party shall have access thereto. Notwithstanding the foregoing, Clear Brook may replace the existing gate with a different or more modern gate in the future, including a gate activated by an electronic or password device, provided that such gate is accessible by the Town and the emergency services of the community having the electronic device or password necessary to open the gate. (b.) Sianacie. Clear Brook agrees to provide appropriate signage at the gate and before the Causeway in order to provide warnings that Lot 14 is -8- private property and is only accessible to the Town and to Clear Brook and its successors and assigns, including but not limited to their licensees, lessees, invitees, vendors and guests. (c) Guardrails or Barriers. Clear Brook covenants and agrees to construct and maintain guardrails or barriers on both approaches to the Causeway, which guardrails or barriers shall be of sufficient design and placement to funnel and keep vehicles within the travel portion of the Driveway as it crosses the Causeway. (d) Reflectors. Clear Brook covenants and agrees to install reflectors and/or illumination on both approaches to the Causeway so as to alert drivers using the Driveway to the presence of the Causeway. (e) Expenses. All improvements required by this Paragraph 6 of the Agreement shall be at the cost and expense of Clear Brook. 7. MUTUAL OBLIGATION TO PREVENT ACCIDENTS. The Town agrees to construct, maintain, repair and operate its infrastructure within the Easement area in a prudent manner and to take every reasonable precaution to prevent accidents on Clear Brook Lot 14. Likewise, Clear Brook and its successors and assigns agree to construct, maintain, repair and operate the access Driveway for Lot 14 in a prudent manner and to take every reasonable precaution to prevent accidents on Lot 14 within the Easement area. 8. MUTUAL ASSUMPTION OF LIABILITY. (a.) Town. For the benefit of the Town only, the Town hereby agrees to assume the entire responsibility and liability for the construction, -9- maintenance and repair of the Easement area and the improvements located thereon, including all costs and expenses related thereto. (b.) Clear Brook. To the extent the Driveway is required to be improved, maintained and repaired in order to facilitate residential use of Lot 14 or to the extent such improvements are voluntarily undertaken, Clear Brook hereby agrees to assume the responsibility and liability for the construction, maintenance and repair of the Driveway and the improvements located thereon, including all costs and expenses related thereto. (c.) Causeway Maintenance and Repair. Clear Brook, its successors or assigns will have the responsibility for maintenance and repair caused or required by its use of the Causeway and the Town will have the responsibility for maintenance or repair caused or required by its use of the Causeway. (For example, in the event a concrete truck traveling over the Causeway to or from Lot 14 to further construction on lot 14 bumps into the side of the Causeway, the damages shall be repaired at the sole cost to Clear Brook, its successors or assigns). Excepting any improvements set forth in Paragraph 6, where repair or maintenance activities are warranted, but the conditions to be addressed are not directly related to any particular person's or entity's use of the Causeway, the cost of such repairs or maintenance activities will be divided evenly between the Town and Clear Brook, its successors or assigns. (For example, in the event the Causeway begins to crumble due to ordinary wear and tear, -10- , the Town and Clear Brook shall each be responsible for 50% of the total repair costs.) In the event that Clear Brook has multiple successors or assigns, the Town's proportionate share shall be reduced accordingly. 9. MUTUAL HOLD HARMLESS, DEFEND AND INDEMNIFICATION. (a.) Town. The Town agrees to save and hold Clear Brook harmless, and the Town assumes the entire responsibility and liability for and defense of Clear Brook, and to pay and indemnify Clear Brook, from and against any and all loss, damage, liability, cost or expense, including reasonable attorney's fees, court costs, settlements, judgments and appeals which Clear Brook incurs because of injury to or death of any person or on account of damage to person or property, including loss of use thereof, or any other claim arising out of, or in connection with, or as a consequence of the Town's ownership, construction, maintenance, repair or operation of infrastructure within the Easement area, including any acts or omissions of the Town or any of its officers, employees, agents, contractors, subcontractors of anyone directly or indirectly employed by the Town, regardless of whether such injuries to person or damage to property are due to the negligence of Clear Brook, its employees or agents or any other person. The Town shall purchase and maintain such insurance as well as cover the obligation of the Town under this paragraph naming Clear Brook as an additional payee as its interest may appear. (b.) Clear Brook. Clear Brook agrees to save and hold the Town harmless, and Clear Brook assumes the entire responsibility and liability for and -11- defense of the Town, and to pay and indemnify the Town, from and against any and all loss, damage, liability, cost or expense, including reasonable attorney's fees, court costs, settlements, judgments and appeals which the Town incurs because of injury to or death of any person or on account of damage to person or property, including loss of use thereof, or any other claim arising out of, or in connection with, or as a consequence of Clear Brook's ownership, construction, maintenance, repair or operation of the Driveway, including any acts or omissions of Clear Brook or its successors and/or assigns. 10. INSURANCE. (a.) Town. In order to protect Clear Brook and the Town, and to insure its obligations to hold harmless, defend and indemnify Clear Brook, the Town shall purchase and maintain sufficient insurance, which insurance shall be for the benefit of Clear Brook and the Town, and their employees, agents, contractors, subcontractors, successors and assigns. The insurance required shall be placed with insurers licensed by the State of New York. The Town further agrees: To name Clear Brook as an additional insured on the bodily injury and property damage insurance; ii. That the insurance coverage is primary with any rights of subrogation against Clear Brook waived. (b.) Clear Brook. Upon the construction of a residence or residences on Lot 14 and during the construction periods for any such residences and -12- accessory structures, the owner or owners of such residences shall obtain homeowner's insurance policies providing comprehensive coverage for public liability in accordance with prevailing market standards. 11. RESIDENTIAL DEVELOPMENT OF LOT 14. Clear Brook and its successors and/or assigns covenant and agree that the access across the Causeway portion of the Road Easement shall be limited to one residential family structure and outbuildings located across the canal and to the east of the Causeway at the outset of this agreement. Notwithstanding the foregoing, however, further residential development on Lot 14 east of the Causeway is allowed in the event, with the consent of the Town, the Causeway could be improved and/or widened or, independent of the Town, Clear Brook constructs a bridge next to the Causeway but otherwise connected to the Easement Road and/or Driveway, provided that Clear Brook otherwise obtains the required governmental approvals in compliance with the laws, rules and regulations applicable to Lot 14. 12. LAWS. The Town agrees to comply with all applicable federal, state and local laws and regulations while on the land owned by Clear Brook and during the course of this Waterline Easement Agreement— 2021. 13. MUTUAL BENEFIT. This supersedes and modifies the Waterline Easement - 2001 and shall run with the land and shall inure to the benefit of the Town and Clear Brook and their agents, employees, contractors, subcontractors, licensees, invitees, guests, successors and assigns. -13- i 14. EFFECTIVE DATE. This Waterline Easement Agreement - 2021 shall become effective upon the execution of the parties hereto and the recording of this instrument in the Warren County Clerk's Office. [SIGNATURE PAGE FOLLOWS] -14- a IN WITNESS WHEREOF, the parties have executed the agreement on the date first set forth above. CLEAR BROOK LLC By : Name : Title : Date : TOWN OF QUEENSBURY By : Name : Title : Date : STATE OF NEW YORK ) )ss.: COUNTY OF ) On the day of , 2021 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 STATE OF NEW YORK ) )ss.: COUNTY OF ) On the day of , 2021 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 -15-