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
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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
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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
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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
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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.
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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.
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(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
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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
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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,
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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,
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,
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
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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
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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.
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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]
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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
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