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HomeMy WebLinkAbout041104-001li ii a6cF SJ fAG14'� "',x�3�0 i LEASE (� LESSOR: TOWN OF ITIiACA, a municipal corporation and political subdivision of New York State, having offices at 126 East Seneca Street, Ithaca, New York I, LESSEE: THOMAS R. WOLSKI and JAN M. WOLSKI DATE: March 23, 1983 PREMISES: 233 FOREST HOME DRIVE (See copy of attached survey made by Carl Crandall dated May 5, 1951, amended February 1, 1983 by T. G. Miller, Engineers and Surveyors) This lease is entered into pursuant to a resolution adopted by the Town of Ithaca on March 7, 1983, a copy of which is attached hereto. This lease relates to the property known as 233 Forest Home Drive in the Town of Ithaca (tax parcel #66-4-10) being the I parcel conveyed by Richard L.-Cotton and Susan G. Cotton to Thomas R. Wolski and Jan M. Wolski by deed dated May 12, 1977, recorded In Liber 447 of. Deeds at Page 264 (herein also referred to as the Wolski parcel). The lease is on the following terms and conditions: SECTION_ 1. The Lessor hereby leases to the Lessee the small( strips or gores of land which lie directly under, and are occupied by, that portion of the dwelling and carport on the above described premises which lies northerly of the line marked on the survey map referred to above as a line 25 feet from the centerline of the present pavement and which may lie within the t boundaries of the right-of-way of Forest Home Drive, together with the right to maintain the present building, as it now stands, in its present location over such occupied strips or gores of land. I SECTION 2. In the event this building is destroyed, removed'; or abandoned, in whole or part, this lease as to the portions destroyed, removed or abandoned shall terminate. The Lessee accepts this lease on the understanding that this lease does not grant to the Lessee a permanent title to any portion of Forest I' home Drive which is occupied by or lies under the building. Neither this lease, nor the above referred to resolution, shall be deemed to be an abandonment or waiver by the Town of any �+ rights, title and interest in full or in part, which the Town may'. have in and to the highway known as Forest Home Drive to the full`; extent of the width to which the Town is lawfully entitled for such highway whether by statute, user or otherwise and the Town G reserves all such rights except that the rights granted to the �i 'i 598 wd071 U RTIFICATION I hereby certify toAJXr4,v.WNrJVEs.1491aW �,••`~�• f'' that I am a licensed land surveyor. New York State license �•_r���4iiA W ��'.; No.o44or.o • and that this map correctly delineates an actual ;,; �� s.; t s survey on the ground made by me or under my direct supervision; - that it was prepared in accordance with the current code of w dctice for land title surveys adopted by the New York State c , Association of Professional land Surveyors; and that I found no `' '�;�•, visible encroachments either way across property lines exceptLA -�o So as shown hereon. �''��.,,,„•..•`'� 5;:;:LD: __Ism•-l+o,•O r4.,�..G DATED: - r C1k v� 1 0 P i� O��,►..• c p O \ L / n, f W 1 /#�0 � n t r� a AL w 1 ,i ,►,��<<, 593 Fh .i072 ;:RESOLUTION GRANTING LEASE TO OWNER OF PREMISES !!KNOWN AS 233 FOREST HOME DRIVE, IN THE TOWN OF IITTHACA, NOW OWNED BY THOMAS R. AND JAN WOLSKI !� WHEREAS: A. Thomas R. and Jan Wolski are the owners of a parcel of I I `;;land in the Town of Ithaca known as 233 Forest dome Drive, being ;,tax parcel #66-4-10, more particularly shown on the survey map "thereof made by Carl Crandall, dated May 25, 1951, amended ;!February 1, 1983 by T. G. Miller, Engineers and Surveyors, and 11being the parcel conveyed by Richard L. and Susan G. Cotton to ::Thomas R. and Jan M. Wolski by deed dated May 12, 1977, recorded in Liber 557 of Deeds at Page 264 (herein referred to as the ;Wolski parcel). A copy of said map is attached hereto and llincorporated in the minutes of this meeting. B. The Wolski parcel joins on the west the parcel known as �235 Forest ;tome Drive in the 'Town of Ithaca, tax parcel #66-4-11, !!being a parcel conveyed by Christopher Lindley to Pearl S. Miller .by deed dated August 14, 1960, recorded in Liber 431 of Deeds at ;("age 123 (herein referred to as the Miller parcel). The Wolski and Miller parcels derived their title from a common source, ;',namely the deed from Cornelia Preswick to Josephus Hasbrouck iidated February 24, 1908.recorded in Liber 168 of Deeds at Page !467. The Miller parcel consisted substantially of the east 84.5 ;feet of the Hasbrouck parcel and the Wolski parcel consists ;!substantially of the westerly 59.5 feet ofthe Hasbrouck parcel. liIn 1978 the Miller parcel was about to be sold and the question ,;was raised at that time by the purchaser that a portion of the ;buildings on the Miller parcel might be encroaching within the ;!right of way of Forest Home Drive. 'The owners of the Miller ;;parcel alleged that the buildings did not lie within the public „right of way of Forest Home Drive. This allegation was denied !1by the Town of Ithaca. After reserving all the Town's rights and !!jurisdiction to the lawful width of the right of way of Forest lil(ome Drive, the Town Board on January 29, 1979 and taking into ;!account financial hardship and other circumstances, authorized ;'a lease of the strip of land lying under the encroaching buildings ;1 ;ion certain terms and conditions stated therein. Such lease was in !fact delivered and is still in effect. it C. Wolski is about to sell their property to a purchaser who ;'has raised a similar issue affecting the title to the Wolski prope claiming that there appears to be an encroachment by the building .on the Wolski property within the boundaries of the public right o ;I way of Forest Home Drive. The Wolskis have appeared before the Town Board and have alleged that they will suffer financial hardsh f� li ty 1 i -2- une 593 Faca073 1� !;because of the apparent unmarketability of the title created by any such an encroachment and they have asserted a claim that the Town has no jurisdiction in any land beyond the traveled portion )for purposes of a public highway and have requested that the Town give them relief by abandoning any claim to the lands under- !'neath the buildings. D. A public hearing was held at the 'Town Hall on March 7, ;!1983, at 7:00 p.m., followinq a notice duly published in the J 111111ACA JUURNAI. on rebraury 28, 1983. 'ehe ownors of the Wolski '!parcel appeared at the public hearing and requested that the Town !Board grant to them and to their successors in ownership a :iperrnanent lease of the lands occupied by existing structures to '!the extent that they may encroach upon the right of way of Forest :Home Drive. No member of the public has objected to the granting of such lease either in person or by written communication. i � E. The Town Attorney reported, amongst other things, as lfollows: 1. lie recommended that the 'Town not abandon any portion i of its right of way. tie further stated that the holding of the public hearing and the adoption of the resolution was j� not a public hearing to consider the granting of an abandon- ment of any portion of Forest Home Drive. i! 2. According to Mr. Wolski,-the records of the County .i Division of Assessment substantiate that the present dwelling ;! has been in its present location since 1908. An examination of the title to said premises indicates that the dwelling ' was probably constructed prior to 1908 inasmuch as the above referred to deed to Josephus Hasbrouck establishes !� boundary lines and corners with respect to their distance from the dwelling house -on the property. The survey map made by Carl Crandall in 1951 is made with reference to distances based on the data appearing in the Hasbrouck deed. The Crandall survey shows a line 25 feet from the centerline of the pavement as it existed in 1951 but such line is not characterized as the boundary of a highway right of way. The i record seems to support the contention of Wolski that the i present encroachment has continued uninterrupted since the erection of the dwelling house. In the year 1976 the Town ;i of Ithaca granted a building permit to Mr. Cotton to erect a carport at 233 Forest Horne Drive in its present location. 3. The Town Attorney further advised the Board that unmarketability of title is created as alleged by the Wolskis The Town Engineer has reported to the Town Board that he i forsees no practical difficulties if the present encroachment are permitted to continue nor does he forsee any practical FAI;E1074 -3- �i I difficulties or impairment of the Town's ability to maintain (� Forest Home Drive if such encroachments are permitted to j continue and he recommends such action provided that any i� lease will contain provisions substantially similar to those �( contained in the instrument granted to the Miller property +� as reported above. The Town Highway Superintendent concurs �i in such recommendation. + NOW THEREFORE, IT IS RESOLVED AS FOLLOWS: li Section I. The Town of Ithaca agrees to grant to the owners lof the Wolski parcel, as described above, herein also referred to Has Lessees (their successors, distributees and assigns) a lease to limaintain the existing building and appurtenances in their present �i :.location as shown on the survey map referred to above, but subject 'Ito the provisions set forth in the following Sections. Se_ctio_n_II. It is not intended that this grant of a lease 'Ishall convey to the Lessees a permanent title to that portion of iIForest home Drive which may be occupied by, or may lie under, the 11building and neither this resolution nor any lease which may be I�granted pursuant thereto shall be deemed to be a permanent abandon 'lment by the Town of all rights, title and interest, in full or in �jpart, which the Town may have in and to the highway known as Fores 11 Home Drive to the full extent of the width to which the Town is lawfully entitled for uses of such highway, and the Town reserves such rights, whether obtained by statute, user or otherwise Hall that the rights granted by this resolution to the owners of 11except lthe Wolski parcel shall be perpetual for so long as the present jbuilding stands in its present location. �! Section III. The Town recognizes that the acceptance of 11this lease by the Lessees shall be without prejudice to the right I(of the Lessees to assert that the right of way is limited to the ;!paved portion of the highway and that the Lessees reserve any and ;;all other rights they may have with respect to the leased lands .land/or the lands claimed by the Town to lie within the right of ,,way for the highway. ii ' Section_ IV. The Lessees shall provide and, at all times i Ilmaintain, at their expense, adequate insurance coverage insuring ,both the Town and the owners of the Wolski property against any illiability for injury to persons or property, or for any other ((;;loss or damage which may result from the maintenance of the buildi g +and appurtenances on the Wolski property in their present location !!Such policy shall be with such company and shall contain such term �fas the Town may reasonably require. The amount of coverage shall be subject to periodic review at the option of the Town, but, ;;for the present, the coverage shall be at least $500,000. If i 1 -4 unN 593 Fac=_i075 :the owners of the Wolski property shall fail to maintain such 'insurance coverage, and shall be reimbursed by the owners of the 164olski parcel for any costs incurred by the Town for premiums ,for such coverage. SECTION V. Neither this resolution nor the execution and ;'delivery of a lease pursuant thereto shall be deemed in any way, or i;in any degree, a waiver by the Town of any rights which it may hav :,in all the remaining portion of Forest Home Drive, i.e., that ,,portion of said highway which lies within the boundaries of the ;,subject property and the Town reserves all rights, titles, � Iinterests and claims in such remaining portion of Forest Home !;Drive, and all rights it may have at any time to assert and 11maintain the full width of the right of way which the Town law- !1fully has over such remaining portion of Forest ;Home Drive. !i SECTION VI. The Supervisor is.authorized, with the assistanc ;'Of the 'town Attorney, the 'Down 1:ntt inter and the Highway Superin- 1tendent to cause to be prepared and to execute a lease in recordab jjform. Such lease shall contain such provisions as he deems appro- priate to carry this resolution into effect and to protect and ;.'preserve the respective interests and rights of the Town. Without ';limiting the discretion granted to the Supervisor as afore- dsaid, such lease snall contain suitable provisions for the upkeep !and maintenance of the building so that it will not become a �1hazard to the public using the highway, and for the termination of the lease in the event that the building is destroyed, removed jior abandoned and such provisions , if any, as the Supervisor may ;(require for recovery by the Town of any expenses or costs, Cincluding reasonable attorneys fees, incurred by the Town in ;1connection with the enforcement of any provisions of this lease ;;and for any provision for payment to the Town of expenses incurredli in granting this lease including the investigation prelimiary to ';and the adoption of this resolution. ' SECTIONVII. This resolution is subject to a permissive :;referendum. The Town Clerk will publish in the ITHACA JOURNAL I'a notice of adoption of this resolution setting fortli an abstract !lof the action taken. w 1, cK 593 FAC, 76 -Z- owners of the Wolski parcel shall be perpetual so long as the presei,t building stands in its present location as stated in this lease. SECTION 3. It is understood by the Lessor that the accept- ance of this lease by the Lessee is without prejudice to any and all rights which the Lessee may have to assert or claim that the right-of-way for Forest Home Drive is limited to the paved portion of the highway as it now exists, or to any other width j but which width, in any event, is less than any width which has been or may be claimed by the Town. SECTION 4. Lessee agrees to maintain the building in good condition and repair so that it will not constitute a hazard to j the public using the highway. The Lessee agrees to save and hold,' harmless the Lessor from any and all liability, damages, costs, suits and expenses, including reasonable attorneys fees, arising from any injury or damage to person or property resulting from or having a causal relation to the execution and delivery of this lease and the granting of the above rights to the Lessor. t The Lessee agrees to maintain and pay for adequate public lia- J insurancq polic I bility/ with an insurance company approved by the Lessor. Some of the criteria are that the company is authorized to do i business in New York State, and that it is financially sound and has a good record in defending and reimbursing their insureds against loss, damages and liability incurred by them. The insurance policy shall contain such terms and provisions as may be reasonably required by the Town which shall insure the Lessee and the Town against any liability, including contractual liabil- under this lease ity/and against all actions, loss, damage or expenses (including any reasonable attorney's fees which may be incurred by the Town) resulting from injury to persons and damage to property. The i coverage for such insurance shall be reviewed from time to time. Initially, the insurance coverage shall be written on the basis j of at least $500,000 coverage. SECTION 5. If the Lessee fails to make such repairs as may be required by Paragraph 4, above, or if the Lessee fails to remove the building, if it has been abandoned, then the Town may make such repairs or effect such removal. The Town shall not' undertake any such removal without giving at least ten (10) days j notice in writing to the owner of the subject property addressed to such owner using the address used for mailing the Town's tax bills. SECTION 6. The Lessee agrees to reimburse the Town for all ` sums incurred by the Town in enforcing its rights under this t lease including, without limitation, reasonable attorney's fees, payment of insurance premiums, sums paid to carry out or enforce 1 l.if h 5J fhr,110 7 -3- the provisions of Section 5. SECTION 7. The resolution authorizing the execution of this lease is subject to a permissive referendum pursuant to the provisions of Article 7 of the Town Law; this lease shall not be effective unless there has been compliance with the provisions of said Article. SECTION 8. The Lessee named herein, prior to execution and delivery of this lease and a condition thereof, shall pay to the Town reasonable expenses incurred by the Town in connection with this proceeding. By execution and delivery of this lease, the Town acknowledges receipt of payments required by this section. 1 i:rftv' S 3 FAbt±078 +} IN WITNESS WHEREOF, this agreement has been duly jj executed by the parties hereto and shall inure to the benefit of and bind the owners of the above described premises and I! their successors in such ownership. i! ! ATTEST: TOWN OF ITHACA: own C ler Supervisor Thomas R. Wolski Jan . _olski I1 STATE OF NEW YORK ) I� COUNTY OF TOMPKINS )ss': On the23ndday of March, 1983, before me personally came i �( NOEL DESCH, to me known, who being by me duly sworn, did ! depose and say that he resides at Ithaca, New York; that he yi is the Supervisor of the Town of Ithaca, the municipality described in and which executed the within instrument; that I! he knows the seal of said municipality; that the seal affixed to said instrument is such municipal seal; and said execution { j was made by him pursuant to the authority granted to him by i; the Town Board of the Town of Ithaca a municipal corporation and political sub -division in the County of Tompkins having. its offices at 126 East Seneca Street, Ithaca, New-.Yoi, Notary Public , ,! Tcrm STATE OF NEW YORK )SS.: COUNTY OF TOMPKINS ) 1 On this day of m4T-c4i, 1983, before me personally appeared THOMAS R. WOLSKI and JAN M. WOLSKI, to me known and i ! known to me to be the same persons described in and who ij executed the within instrument and they duly acknowledged to ?! me that they executed the same. 1UNE L. STEt'^11 ,L(/,1L_ z M Notary Pubt'c State of Now Yak �JQ ry Public j No, 1764636 1! Quahfled In Tompkins Catpdy �{ I j Corrwunion Expire% Moreh 34, l i ij Tompkins County, c.'; i; R©coro�d on 1ho � . ............... .1.1 �Q , o cock M.in Libor ...... W ........ of ..... � .......,�.• .. at QS 1.4.7.Y........... and,�d, ,...�.. i v ��