Town Ordinances

ORDINANCE NO.10 - 2011

ORDINANCE NO. 10-2011                   


WHEREAS, ACP Morris Plains, L.L.C. (the “Grantor”), owner of Block 171, Lots 39, 40, 41 & 42 (now known as Block 171, Lot 39 as a result of a Lot Consolidation Deed recorded in the Morris County Clerk’s Office on April 29, 2011 in Book 21785, Page 241) (the “Property”), received approval from the Morris Plains Planning Board in PB-06-10 for the development of a multi-family residential housing project on the Property; and                  

WHEREAS, as a condition of approval, the Planning Board required that the Grantor place all flood plains, wetlands and transition areas on the Property into a conservation easement; and                   

WHEREAS, the Grantor is now desirous of dedicating and conveying to the Borough of Morris Plains (the “Grantee”) a perpetual conservation easement on, over and across the Property, in accordance with the terms and conditions set forth in a Deed of Conservation Easement dated April 20, 2011, and recorded in the Morris County Clerk’s Office on April 29, 2011 in book 21785, Page 211; and                  

WHEREAS, the Borough Council of the Borough of Morris Plains is desirous of accepting the said conservation easement on, over and across the Property in accordance with the terms and conditions set forth in the aforesaid Deed of Conservation Easement.                  

NOW, THEREFORE, BE IT ORDAINED, by the Borough Council of the Borough of Morris Plains, they being the Governing Body thereof, as follows:

Section l:                   That the perpetual conservation easement on, over and across Lots 39, 40, 41 & 42 in Block 171 (now known as Block 171, Lot 39) in the Borough of Morris Plains, Morris County, New Jersey, as described on Schedules A and B annexed hereto and made a part hereof, be and the same is hereby accepted as dedicated and conveyed subject to the terms and conditions as set forth in a Deed of Conservation Easement between the Grantor and the Grantee, including but not limited to the following special conditions:

1.       Grantor may convey, mortgage, lease or otherwise transfer title or interest in the lands subject to this Easement provided, however, that the covenants and conditions herein remain superior to such conveyance, mortgage, lease, or transfer, it being the intention of the parties that this Agreement and its terms and conditions shall become a part of the chain of title and shall run with the land.

2.           The Grantor shall not change any features of the natural landscape or general topography of the Easement Area nor remove any trees, shrubs, or other vegetation except as necessary for the construction, maintenance and repair of structures and improvements depicted on the site plans, architectural drawings and accompanying documents for Coventry Park at Morris Plains, approved by way of resolution of the Planning Board of the Borough of Morris Plains on February 14, 2011, and permitted by any other governmental agency or authority having jurisdiction without the prior written approval of the Grantee; provided, however, that the Grantor may, without such written approval, remove dead or diseased foliage that may reasonably be expected to threaten the surrounding foliage or the buildings or other site improvements. 

3.           The Grantor shall not make any changes within the Easement Area that will affect existing drainage, flood control, erosion control or soil conservation without the prior written consent of the Grantee. 

4.           No topsoil, sand, gravel, loam, rock, minerals or other materials shall be excavated within or removed from the Easement Area, nor shall any fill be deposited.  

5.           The Grantor shall not deposit, or allow to be deposited, any trash, waste, garbage or any other unsightly or offensive materials within the Easement Area and shall not use the Easement Area for the storage of materials whatsoever. 

6.           No advertising signs shall be located within the Easement Area. 

7.           No buildings, structures or other man-made improvements shall be erected in the Easement Area. 

8.           It is understood and agreed that this Deed of Conservation Easement confers upon the Grantee no rights of title or use of the Easement Area and nothing herein shall be construed to permit public access to or use of that area nor require the Grantee to maintain such area. Nothing herein shall be construed to limit the Grantor's right of access to and use of that area except as herein provided. 

9.           The Grantee, its employees and agents, shall be permitted a permanent right of access to, and entry upon the Easement Area in a reasonable manner and at all reasonable times for the purpose of inspecting the Easement Area and enforcing the foregoing terms and conditions and to remedy any violations thereof.   

10.        If after inspection of the Easement Area, the Grantee determines that a violation of these terms, conditions or restrictions is found to exist, the Grantee, or its successor or assign, may after 10 days notice to the Grantor, its successors or assigns, institute a suit to enjoin by ex-parte, temporary and/or permanent injunction, such violation to require the restoration of the Easement Area to its prior condition, or for damages for breach of covenant. The Grantee, its successors or assigns, does not waive or forfeit the right to take action as may be necessary to insure compliance with the terms conditions, restrictions and purposes of this conservation easement by a prior failure to act. 

11.        No roadways or other rights of way or parking of motor vehicles or equipment shall be allowed within the Easement Area unless shown on the originally approved plans. 

12.        Notwithstanding the foregoing, the Grantee and the County of Morris shall be entitled to enter upon the Conservation Easement Area to undertake improvements that might be necessary in the public interest, including work that might be necessary to the stream channel, bank stabilization, increases to the culvert size and the like, subject to the approval of the Grantor and all other governmental agencies having jurisdiction over the improvements to be undertaken. 

13.        It is the intention of the parties hereto that the Easement Area will remain undisturbed and forever wild except as specifically provided herein. 

14.        Wherever in this Instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors, administrators, personal or legal representatives, successors and assigns" had been inserted after each and every such designation. All the terms, covenants and conditions herein contained shall be for and shall inure to the benefit of, and shall bind, the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns, respectively. 

15.        In all references herein to any party, the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. 

16.        This easement shall in all respects to be governed by and construed in accordance with the laws of the State of New Jersey. 

17.        In the event that any part or parts of this conservation easement is or are found to be invalid by a Court of competence jurisdiction, the remaining provisions of this easement shall nevertheless be binding with the same force and effect as though the invalid parts were deleted therefrom.  

18.        In the event of any violation of the covenants and conditions contained in this Easement, the Borough of Morris Plains or its designee shall be entitled to recover, in any action to enforce the terms hereof, reasonable attorney's fees.

 19.        The provisions of this Agreement may not be amended, modified or terminated without the express written consent of the Borough of Morris Plains, and no such amendment, modification or termination shall be effective for any purpose unless set forth in writing and signed by the appropriate municipal officials. 

Section 2:The appropriate Borough Officials are hereby authorized to take any and all action necessary to effectuate the conveyance of said easement.

Section 3:          If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid by Court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinances.

Section 4:           This Ordinance shall take effect after final passage and publication in accordance with law.    

Introduced:  05/05/11                                                                                                     Adopted:      05/26/11                                      Frank J. Druetzler, Mayor