HomeMy WebLinkAboutTB Packet 2019-03-29TOWN OF ITHACA
PLANNING DEPARTMENT MEMORANDUM
TO: TOWN BOARD MEMBERS
FROM: MICHAEL SMITH, SENIOR PLANNER
DATE: MARCH 26, 2019
RE: AGRICULTURAL CONSERVATION EASEMENT—AUTHORIZE PURCHASE
JOSEPH S MALLON & MARIA D MALLON
471 BOSTWICK ROAD / TAX PARCEL NO. 32.-2-2.2
As you know, in spring 2018 the Town of Ithaca received an application from Joseph & Maria
Mallon to potentially participate in the Town's Agricultural Land Preservation Program. In May
2018, the Town Board authorized an appraisal be completed to determine the value of the
agriculture conservation easement. The appraisal was completed in August 2018 and provided
to the landowners and Town's Planning Committee (October meeting). The landowners were
comfortable with the value and the Planning Committee recommended moving forward with
the easement, which was also confirmed by the Town Board in October 2018. The Town Board
authorized the property survey in February, which T.G. Miller, P.C. has provided. The Town's
Planning Committee also reviewed the easement and many of the related documents at their
February meeting, and recommended to the Town Board that the Town move forward with the
purchase of the agricultural conservation easement.
Planning staff has been drafting many of the documents that will be needed to finalize the
conservation easement. Below is a list of the draft items that have been prepared to complete
the purchase of the agricultural conservation easement. I have attached a copy of the draft
conservation easement, the new property survey, and the purchase of development rights
agreement and sales contract for the Board's review. If anyone is interested in any of the other
documents listed below, please let me know and I can send them to you.
- Draft Agricultural Conservation Easement (dated 12-19-18) (attached)
- Survey Map Showing Lands of Joseph S. Mallon & Maria D. Mallon (3/18/19) (attached)
- Purchase of Development Rights Agreement and Sales Contract (attached)
- Baseline Documentation Report (dated February 4, 2019)
- Monitoring Plan for an Agricultural Conservation Easement (dated February 4, 2019)
- NYS Department of Agriculture and Markets — Waiver
Also for the Board's consideration is the proposed authorizing resolution for the purchase of
the conservation easement by the Town and allowing the Town Supervisor to execute the
easement and other related documents.
Please let me know if you have any questions prior to the meeting.
MEETING OF THE ITHACA TOWN BOARD
MARCH 29, 2019
TB RESOLUTION NO. : Authorization to Purchase an Agricultural Conservation
Easement on Approximately 52 Acres at 471 Bostwick Road (Tax Parcel No. 32.-2-2.2)
Whereas, the Town Board has adopted a Policies and Procedures Manual (July 12, 1999, updated
March 13, 2006 and January 7, 2008) with specific guidelines and criteria for implementation of the
Agricultural Land Preservation Program; and
Whereas, the owners of Town of Ithaca Tax Parcel No. 32.-2-2.2 (471 Bostwick Road) have
expressed interest in the potential sale of the development rights to their property through the
purchase of an agricultural conservation easement by the Town of Ithaca; and
Whereas, an appraisal has been completed for the property and the owners agree with the $78,000
value of the conservation easement; and
Whereas, a draft agricultural conservation easement and preliminary site plan have been prepared
for the project and have been presented to this Board; and
Whereas, pursuant to the New York State Environmental Quality Review Act ("SEQRA") and its
implementing regulations at 6 NYCRR Part 617, it has been determined by the Town Board that
acquisition of a conservation easement is a Type II action pursuant to 6NYCRR Section
617.5(c)(39), and thus the acquisition of the conservation easement is not subject to review under
SEQRA;
Now, therefore, be it
Resolved, that the Town Board of the Town of Ithaca hereby authorizes the execution of the
proposed agricultural conservation easement with Joseph S. and Maria D. Mallon for the receipt by
the Town of an agricultural conservation easement on approximately 52 acres of land at 471
Bostwick Road in the Town of Ithaca, and it is further
Resolved, that the Town Board of the Town of Ithaca authorizes the payment to the Mallons of
$78,000 for such easement upon closing the transfer, receipt of the executed deed of the easement,
and approval of the attorney for the Town of the title to such easement, and it is further
Resolved, that payment of said funds are to be made from the Open Space Plan Account, and it is
further
Resolved, that the Town pay the incidental costs (recording fees and other similar expenses) as
incurred in order to complete such closing, and it is further
Resolved, that the Town Supervisor is hereby authorized to execute said agricultural conservation
easement and other related documents on behalf of the Town.
Moved: Seconded:
Vote:
Draft 12-19-18
Deed of Conservation Easement
THIS CONSERVATION EASEMENT ("Easement") is granted this day of
20___, by JOSEPH S. MALLON & MARIA D. MALLON ("Grantor"), residing at 471
Bostwick Road to the TOWN OF ITHACA ("Grantee" or "Town"), a New York municipal corporation
having an office at 215 North Tioga Street, Ithaca, New York 14850.
WHEREAS:
A. Grantor is the owner of certain real property (the "Property") consisting of 51.72 acres, in one
tax map parcel located at 471 Bostwick Road in the Town of Ithaca, Tompkins County, New
York, more fully described in the legal survey description of the property ("EXHIBIT A") and
shown on the Easement Map ("EXHIBIT B"), both attached hereto;
B. Grantee is a municipal corporation and has the authority pursuant to Section 247 of the General
Municipal Law and Article 49, Title 3 of the New York Environmental Conservation Law (the
"ECL") to acquire conservation easements;
C. The Property consists primarily of productive agricultural land. The Property contains
approximately 38.7 acres of soils of statewide importance as defined by the U.S. Department of
Agriculture Natural Resources Conservation Service;
D. The Property is located within Tompkins County's Agricultural District 92, created pursuant to
Article 25AA of the New York State Agriculture and Markets Law. In Section 300, it states:
"It is hereby found and declared that many of the agricultural lands in New York State are in
jeopardy of being lost for any agricultural purposes. When nonagricultural development
extends into farm areas, competition for limited land resources results ... It is, therefore, the
declared policy of the state to conserve, protect and encourage the development and
improvement of its agricultural land for production of food and other agricultural products ... It
is the purpose of this article to provide a locally -initiated mechanism for the protection and
enhancement of New York State's agricultural land as a viable segment of the local and state
economies and as an economic and environmental resource of major importance;"
E. The Property is located within Tompkins County, which has adopted (September 2015) an
Agriculture and Farmland Protection Plan. The Plan's goals are (1) support a diversity of
viable farm businesses, (2) a vibrant local food system based on local food production
supported by local purchasing that enables producers to grow and thrive, (3) farming is
supported through local land use policies and actions that protect farmland, allow the
development of diverse farming enterprises, avoid increased costs of doing business, and
ensure access to quality farmland for future farming, (4) a high level of community awareness
and appreciation of sustainable farming practices and agriculture's contribution to the
economy, rural life, scenic landscapes, natural resource preservation, agritourism and local
foods, (5) farmers follow sustainable farming practices that protect natural resources and
mitigate negative environmental impacts on soil, water, ecology, wildlife, and people while
increasing resilience to address climate change and environmental challenges over the long
term, and (6) people interested in farming will become successful future farmers or farm
employees;
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F. The Property is located within the Town of Ithaca, which has adopted (November 2011) an
Agricultural and Farmland Protection Plan. The Plan's goals are to (1) promote the availability
of locally grown foods and other agricultural products for all residents including limited
income families, (2) retain and encourage a diversity of economically viable farm types, (3)
ensure long-term protection of agricultural -land resources for agriculture, open space, and
scenic resources, (4) encourage public understanding and involvement, and (5) promote wise
land use and waste management on agricultural land;
G. To achieve goal 93 above, the Town of Ithaca's Agricultural and Farmland Protection Plan
recommends, among other actions, the following: "Continue implementation of the Town's
current agricultural conservation -easement acquisition (PDR) program for appropriate
agricultural parcels that have been targeted in the Policies and Procedures Manual for the
Agricultural Land Preservation Program." The Property is included on the Town's Policies and
Procedures Manual's "Purchase of Agricultural Conservation Easements Target Areas" map
(1999, updated 2006), and on the Town's Agricultural and Farmland Protection Plan's "Target
Areas for Purchase of Agricultural Conservation Easements" Map 8 (November 2011);
H. In addition to the productive agricultural land on the Property, the southern portion of the
Property also contains parts of two streams, steep slopes, and wildlife habitat, and it is located
within the Calkins Road Glen Unique Natural Area (UNA-146);
Grantor has received independent legal and financial advice regarding this Easement to the
extent that Grantor has deemed necessary. Grantor freely signs this Easement in order to
accomplish its conservation purposes.
NOW, THEREFORE, in consideration of the foregoing, Seventy-eight Thousand Dollars ($78,000) and
the mutual covenants, terms, conditions and restrictions contained herein, the parties agree as follows:
1. Grant of Conservation Easement.
Grantor hereby grants and conveys to Grantee, a Conservation Easement (the "Easement"), an
immediately vested interest in real property defined by Article 49, Title 3 of the ECL of the nature and
character described herein, for the benefit of the general public, which Easement shall run with and
bind the Property in perpetuity. Grantor will neither perform, nor knowingly allow others to perform,
any act on or affecting the Property that is inconsistent with the covenants contained herein. Grantor
authorizes Grantee to enforce these covenants in the manner described below.
2. Purpose.
The Primary Purpose of this easement is to conserve viable agricultural land and soil resources by
preventing uses of the Property that will significantly impair or interfere with the Property's
agricultural and forestry viability and productive capacity.
3. Implementation.
This Easement shall be implemented by limiting and restricting the development and use of the
Property in accordance with its provisions. The Property remains subject to all applicable local,
state and federal laws and regulations. This Easement and the administration of its provisions shall
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not unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25 -
AA of the Agriculture and Markets Law.
4. Definitions.
4.(a). "Farm Labor Housing" means dwellings or structures, together with accessory
improvements used to house seasonal and/or full-time employees where such residences
are provided by the farm landowner and/or operator, the worker is an essential
employee of the farm landowner and/or operator employed in the operation of the farm
and the farm worker is not a partner or owner of the Farm Operation. For instance, a
structure used as the primary residence of a farm owner is not "farm labor housing".
4.(b). "Farm Operation" shall be defined as "the land and on-farm buildings, equipment,
manure processing and handling facilities, and practices which contribute to the
production, preparation and marketing of crops, livestock and livestock products as a
commercial enterprise" in accordance with Section 301 of the New York State
Agriculture and Markets Law ("Agriculture and Markets Law"), or such successor law
as enacted or amended.
4.(c). "Grantee" includes the original Grantee, including its elected officials, public officers,
employees and agents, and its successors and assigns.
4.(d). "Grantor" or "owner" includes the original Grantor, its heirs, successors and assigns, all
future owners of any legal or equitable interest in all or any portion of the Property, and
any party entitled to the possession or use of all or any part thereof.
4.(e). "Impervious Surfaces" are defined as structures or improvements that permanently cover
soil resources. Impervious Surfaces do not include permeable surfaces such as gravel roads
and parking areas, structures whose principal purpose is to protect soil and water
resources, such as manure storage areas, and structures and improvements lacking
permanent foundations.
4.(f). "Residential Dwelling" means dwellings or structures, together with accessory
improvements that comprise single-family, multi -family, apartments, "in-law" apartments,
guest houses and farm labor housing, whether or not the structure(s) are used as the
primary residence of a farm owner.
4.(g). "Sound Agricultural Practices" is defined as those practices necessary for on-farm
production, preparation and marketing of agricultural commodities, provided such
practices are legal, necessary, do not cause bodily harm or property damage off the farm,
and achieve the intended results in a reasonable and supportable way. If necessary, to
determine if a practice is "sound," Grantee or Grantor may request that the New York
State Department of Agriculture and Markets initiate a sound agricultural practice review
pursuant to Section 308 of the New York State Agriculture and Markets Law, or any
successor law as enacted or amended.
4.(h). "Viable Agricultural Land" is defined as land highly suited for agricultural production.
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4.(i). The following use areas are defined for the Easement:
"Farmstead Area" is defined as the area depicted in Exhibit B, that centers on existing
farm structures or future planned structures.
"Resource Protection Area" is defined as the area depicted on Exhibit B that contains
unique or special natural features including, but not limited to, streams, wildlife habitat,
and steep slopes and their supporting buffer lands.
"Farm Area" is defined as the remaining area of the farm, depicted in Exhibit B.
5. Reserved Rights Retained by Grantor.
As the owner of the Property, Grantor reserves all customary rights and privileges of ownership,
including the right of exclusive use, possession and enjoyment of the Property, the rights to sell,
lease, and devise the Property, as well as any other rights consistent with the Purpose set forth in
Section 2 ("Purpose") and not specifically prohibited or limited by this Easement.
However, nothing in this Easement relieves Grantor of any obligation with respect to the Property or
restriction on the use of the Property imposed by law and nothing in this Easement shall require
Grantor to take any action to restore the condition of the Property after any act of God or force
mai eure.
5.(a). Right to Use Property for Agricultural Uses.
Grantor has the right to produce crops, livestock and livestock products and use the
Property as a Farm Operation, which includes but is not limited to the right to establish,
reestablish, maintain, and use cultivated fields, orchards, pastures and woodlands. Said
farming practices shall be carried out in accordance with Sound Agricultural Practices
as defined herein.
5.(b). Right to Use Property for Rural Enterprises.
Grantor has the right to operate otherwise lawful rural enterprises, which may include, if
permitted by Zoning, uses such as, but not limited to, farm machinery repair,
professional offices within the home, bed and breakfasts, crafts production and
firewood distribution, subject to the limitations set forth in this Easement, including
Section 7 ("Construction of Buildings and Other Improvements"). In all cases, such rural
enterprises must be compatible with the Purpose of this Easement and subordinate to
the agricultural use of the Property.
5.(c). Right to Use Property for Recreational Purposes.
Grantor retains the right to use the Property for otherwise lawful personal or
commercial recreational uses, including, but not limited to, hunting, fishing, cross-
country skiing, camping, horseback riding and snowmobiling, subject to the limitations
set forth in this Easement, including Section 7 ("Construction of Buildings and Other
Improvements"). In all cases, such recreational uses must be compatible with the
Purpose of this Easement and subordinate to the agricultural use of the Property.
6. Access.
Nothing contained in this Easement shall give or grant to the public a right to enter upon or to use
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the Property or any portion thereof where no such right existed in the public immediately prior to
the execution of this Easement.
7. Construction of Buildings and Other Improvements.
The Property is separated into three principal areas as further described in the Baseline
Documentation Report, Section 18 ("Baseline Documentation") and identified in the Easement
Map attached hereto as Exhibit B: 1) the Farmstead Area; 2) Resource Protection Area; and 3) the
Farm Area. Grantor may undertake construction, erection, installation, removal or placement of
buildings, structures, or other improvement to the Property within these areas only as provided in
this Easement and set forth below.
7.(a). Impervious Surfaces
Subject to the limitations set forth below and in the Town's Zoning requirements, Impervious
Surfaces may be constructed or placed on up to a maximum of 10% of the Farm Area and
without limitation in the Farmstead Area. Impervious Surfaces are prohibited in the Resource
Protection Area.
7.(b). Fences
Subject to the Town's Zoning requirements, existing fences may be repaired, removed and
replaced, and new fences may be built anywhere on the Property for purposes of reasonable
and customary management of livestock and wildlife, safety and general management and to
prevent trespassing on the Property.
7.(c). Agricultural Structures and Improvements
(i) Existing agricultural structures and improvements
Any agricultural structures and improvements existing as of the date of this Easement may be
repaired, removed, enlarged and replaced at their current locations, subject to the Impervious
Surface coverage limitations set forth in Section 7(a) ("Impervious Surfaces").
(ii) New agricultural structures and improvements
Farmstead Area: Without permission of Grantee, except as otherwise required by the Town
of Ithaca Code, Grantor may construct new buildings, structures and other improvements,
including asphalt and concrete roads and parking areas, within the Farmstead Area to be
used primarily for purposes related to a Farm Operation and for such other agricultural
purposes as (i) the production, storage, marketing or sale of farm products or by-products,
or processing of farm products or by-products, (ii) the storage of equipment used for
agricultural production, and (iii) the keeping of livestock or other animals.
Resource Protection Area: With permission of Grantee, Grantor may place or construct
new agricultural buildings, structures and improvements within the Resource Protection
Area, provided no Impervious Surfaces are placed or constructed as part of or associated
with the agricultural buildings, structures or improvements.
Farm Area: The following are subject to the Impervious Surface coverage limitations set
forth in Section 7(a) ("Impervious Surfaces"). Grantor may construct new buildings,
structures and other improvements for purposes related to the Farm Operation on up to 5%
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of the Farm Area without permission of Grantee, except where such permission is otherwise
required by the Town of Ithaca Code. With permission of Grantee, Grantor may construct
new buildings, structures and improvements related to the Farm Operation that would cover
up to an additional 5% of the Farm Area.
7.(d). Residential Dwellings
Residential Dwellings may be placed or constructed on the Property in accordance with the
provisions of this Section 7(d).
(i) Existing Residential Dwellings
Subject to the Town's Zoning requirements, existing Residential Dwellings, as defined in
Section 4(f), if any, may be repaired, removed, enlarged and replaced at their current locations,
which are shown on Exhibit B.
(ii) New Residential Dwellings
Farmstead Area: Without permission of Grantee, except as otherwise required by the
Town of Ithaca Code, Grantor may construct new residential dwellings, together with
accessory structures and improvements, within the Farmstead Area, subject to any
applicable local, state or federal laws and regulations.
Resource Protection Area: Any Residential Dwelling, including those for Farm Labor
Housing, is prohibited within the Resource Protection Area.
Farm Area: Subject to the Impervious Surface coverage limitations set forth in Section
7(a) ("Impervious Surfaces"), Grantor may construct new dwellings or structures and
improvements for Farm Labor Housing, as defined in Section 4(a) ("Farm Labor
Housing"), on up to I% of the Farm Area without permission of the Grantee except where
such permission is otherwise required by the Town of Ithaca Code. With Grantee's
permission, Grantor may construct additional Farm Labor Housing in the Farm Area as
proven necessary to conduct current farm operations. The land on which these dwellings,
structures and improvements stand shall not be subdivided.
7.(e). Rural Enterprises
Rural enterprises may be established and carried out within the Farmstead Area, if
permitted by the Town's Zoning requirements, including but not limited to, professional
offices within the home, bed and breakfasts, crafts production and firewood distribution. In
all cases, such uses and any necessary structures or improvements shall be compatible with
the Purpose of this Easement, and subordinate to the agricultural use of the Property.
Enterprises which market non-agricultural petroleum or chemical products are prohibited.
The land on which these structures stand shall not be subdivided. Rural Enterprises are
subject to the Impervious Surface coverage limitations set forth in Section 7(a) ("Impervious
Surfaces").
7.(f). Recreational Structures and Improvements
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Recreational buildings, structures and improvements are permitted on the Property so long as
such buildings, structures and improvements are compatible with the Purpose of this Easement
and subordinate to the agricultural use of the Property. Under no circumstances shall golf
courses and/or ranges be allowed on the Property.
Farmstead Area: Without permission of Grantee, except where such permission is
otherwise required by the Town of Ithaca Code, Grantor may enlarge existing or construct or
place new recreational buildings, structures and improvements within the Farmstead Area,
so long as they are compatible with the Purpose of this Easement and subordinate to the
agricultural use of the Property.
Resource Protection Area: Permission of Grantee is required prior to the placement or
construction of any building, structure or improvement associated with Recreational Uses
within the Resource Protection Area. No Impervious Surfaces may be placed or
constructed as part of or associated with the Recreational Use.
Farm Area: Subject to the Impervious Surface coverage limitations set forth in Section 7(a)
("Impervious Surfaces") and the Town's Zoning requirements, Grantor may enlarge
existing or construct or place new recreational buildings, structures and improvements in
the Farm Area up to an aggregate of 1,000 square feet in size without permission of
Grantee, unless permission is required by the Town of Ithaca Code. With permission of
Grantee, recreational buildings, structures and improvements that exceed an aggregate
footprint of 1,000 square feet may be constructed in the Farm Area. All recreational
buildings, structures and improvements shall be compatible with the Purpose of this
Easement, subordinate to the agricultural use of the Property, and located in a manner that
minimizes the impact to statewide important soils.
7.(g). Utility Services and Septic Systems
Wires, lines, pipes, cables or other facilities providing electrical, gas, water, sewer,
communications, or other utility services to or from the improvements permitted in this
Easement may be installed, maintained, repaired, removed, relocated and replaced, and
Grantor may grant easements over and under the Property for such purposes. Septic or
other underground sanitary systems serving the improvements permitted herein may be
installed, maintained, repaired or improved. All such services and systems shall be
compatible with the Purpose of this Easement, subordinate to the agricultural use of the
Property, and located in a manner that minimizes the impact to statewide important soils and
the Resource Protection Area.
7.(h). Renewable Energy and Communications Structures and Improvements
Renewable energy is derived from a fuel source that readily restores over short periods of
time and typically does not diminish. Such fuel sources include the sun, wind, moving
water, organic plant and waste material (e.g., biomass) and the earth's heat (i.e.,
geothermal). Telecommunications is the transmission, receipt, or exchange of information
through the use of technology involving the Property and any other location.
Structures (including buildings) and improvements necessary to undertake renewable
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energy generation or telecommunications are permitted on the Property as further described
below provided they are compatible with the Purpose of this Easement, subordinate to the
Agricultural Use of the Property and located in a manner that minimizes the impact to soils
of statewide importance. Such structures and improvements may be placed or constructed
on the Property in accordance with the provisions of this Section 7(h) and may be
maintained, repaired, removed, enlarged and replaced at their respective locations subject to
the Impervious Surface coverage limitations set forth in Section 7(a), and are subject to the
Town's Zoning requirements.
Farmstead Area: Within any designated Farmstead Area, Grantor may construct such
structures and improvements without permission of Grantee, unless permission is required
by the Town of Ithaca Code.
Resource Protection Area: Any structures or improvements associated with renewable
energy generation or telecommunications are prohibited within the Resource Protection
Area.
Farm Area: Subject to the Impervious Surface coverage limitations set forth in Section 7(a)
("Impervious Surfaces"), such structures and improvements, including associated roads
and drainage ditches, may be built in the Farm Area only with the permission of Grantee,
which may be conditioned upon the posting of a bond. These structures and
improvements are permitted only if the activity is limited and localized in impact
affecting no more than two percent (2%) of the Farm Area at one time.
Prior to determining the location of a site for these structures and improvements in the Farm
Area, the Grantor shall notify the Grantee and the local Soil and Water Conservation District
to give them an opportunity to participate in an onsite meeting to review proposed locations.
Grantor shall agree to comply with the New York State Department of Agriculture and
Markets guidelines for agricultural mitigation for construction of such structures.
8. Maintenance and Improvement of Water Sources.
Grantor may use, maintain, establish, construct, and improve water sources, water courses and water
bodies within the Property for the uses permitted by this Easement. Grantor may alter the natural flow
of water over the Property in order to improve drainage of agricultural soils, reduce soil erosion and/or
flooding, provide irrigation for the Property or improve the agricultural or forest management
potential of the Property, provided such alteration is consistent with Sound Agricultural Practices and
the Purpose of this Easement and is carried out in accordance with applicable local, state and federal
laws and regulations.
9. Water Rights.
Grantor may use any appurtenant water rights sufficient to maintain the agricultural productivity of the
Property in accordance with applicable local, state and federal laws and regulations. Grantor shall not
transfer, encumber, lease, sell or otherwise sever such water rights from title to the Property itself.
10. Subdivision.
The Property is currently comprised of one tax map parcel (Town of Ithaca Tax Parcel No. 32. -2 -
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2.2) owned by Grantor. The Property shall not be further partitioned or subdivided.
Mortgages, or other non -possessory interests in land do not constitute subdivisions for the purpose
herein, provided such interests encompass the whole parcel.
11. Forest Management.
Without permission of Grantee, except as otherwise required by the Town of Ithaca Code, Grantor
may harvest wood for use on the Property including heating or construction of buildings and
improvements, manage forested areas for wildlife habitat and recreation, and remove trees that are
fallen, dead, diseased or invasive, so long as such activities are consistent with generally accepted
forest best management practices and do not significantly cause sedimentation or pollution of any
stream or wetland.
The killing, control, or removal of non-native, invasive species is permitted. Grantor retains the
right to plant non-native vegetation within the Farmstead Area, and in conjunction with permitted
agricultural uses in the Farm Area. Non-native vegetation may be planted within the Resource
Protection Area, solely with prior written approval of Grantee.
In the Farmstead Area and Farm Area (but not in the Resource Protection Area), Grantor retains
the right to clear forested areas for conversion to farmland and to plant, cut, and manage trees and
shrubs for landscaping, gardening, or agricultural purposes, including plantation forestry and the
cutting and removal of trees to maintain or reclaim fields. For the purposes of this Conservation
Easement, vegetation clearing conducted in the Farm Area shall be considered an agricultural
activity.
The following activities may be undertaken without permission from Grantee, except as otherwise
required by the Town of Ithaca Code, and require a forest management plan and harvest plan as
described below. Grantor may commercially harvest timber and other wood products, conduct
timber stand improvements and construct, maintain, remove, and repair unpaved access roads and
"staging areas", those areas where logs are temporarily stored for transport necessary for such
activities. All such activities shall be in accordance with generally -accepted forestry best
management practices. Such commercial timber harvests and timber stand improvements shall be
carried out in accordance with a forest management plan and harvest plan prepared by a forester
who is certified by the Society of American Foresters or such successor organization as is later
created, a Cooperating Consulting Forester with the New York State Department of Environmental
Conservation or a qualified forester approved by Grantee.
In order to facilitate the monitoring and stewardship of this Conservation Easement, and ensure
continuing communication between parties, Grantor shall give Grantee, its successors or assigns,
written notice not less than forty-five (45) days prior to the anticipated commencement of any
commercial timber harvest or timber stand improvement. Such written notice shall include
submission of the then -current forest management plan and harvest plan.
The forest management plan must incorporate Best Management Practices to the greatest extent
practicable and specifically address safeguards and provide for the protection and minimal
disturbance of any steep slopes, watercourses, wetlands, and riparian areas, that may be within or
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adjacent to the Resource Protection Area.
12. Mining and On -Site Extractive Activity.
Exploration for, or development, storage and extraction of sand and gravel on or from the Property by
any method are permitted only under the following conditions. Grantor may remove sand and gravel
on the Property, provided said removal: (a) is limited and localized in impact, affecting no more
than two acres of the Property at one time; (b) is compatible with the Purpose of this Easement; (c)
is reasonably necessary and exclusively for the Farm Operation; (d) minimizes the impact to the
statewide important soils; and (e) subject to the Town's Zoning requirements.
Surface activities related to subsurface mineral and hydrocarbon exploration, development and
extraction are not permitted on the Property, except as set forth above regarding sand and gravel
exploration development and extraction.
13. Road Construction.
Pursuant to the Impervious Surface coverage limitations set forth in Section 7(a) ("Impervious
Surfaces") and local and state requirements, Grantor may construct roads for residential driveways,
barnyards, farm markets or other improvements necessary to provide access to, and parking for,
permitted buildings or improvements, or to conduct other activities permitted by this Easement.
Roads constructed in the Farm Area shall be located in a manner that minimizes impacts to the
statewide important soils.
14. Dumping and Trash.
The dumping, land filling, burial, application, injection, or accumulation of any kind of garbage,
trash or debris on the Property is prohibited, other than agriculturally -related waste or
biodegradable material as described below. Subject to the limitations and requirements of the Town
of Ithaca Code, and without the need for additional permission of Grantee beyond the requirements
of the Town Code, Grantor may 1) store, compost, apply or inject agriculturally -related waste or
biodegradable material; 2) store old farm equipment to be used for parts; 3) temporarily store trash
or household waste in receptacles for periodic off-site disposal and 4) compost or re -use
biodegradable materials generated off the Property for use on the Property or commercial use or
sale. All such activities shall be conducted in accordance with Sound Agricultural Practices and in
a manner consistent with all applicable local, state or federal laws and regulations.
Notwithstanding the foregoing, the storage and treatment of sewage associated with buildings
permitted on the Property is permitted by this Easement.
15. Permission of Grantee.
When Grantor is required to obtain Grantee's permission for a proposed action pursuant to the
Easement, such permission shall be requested in writing. Grantee shall grant permission unless it
determines that such action is 1) incompatible with the Purpose of this Easement or 2) not subordinate
to the agricultural use of the Property. Such permission shall not be unreasonably withheld. Grantee
shall respond with a decision in writing within forty-five (45) days of receipt of the Grantor's written
request, which shall include all relevant building plans identifying the use, footprint and total square
footage of any proposed structures, and related survey information, if available. If mutually agreed
upon by Grantee and Grantor, this timeline may be reasonably extended. Nothing in this Easement
relieves Grantor of the obligation to obtain approvals, permits, variances or other permissions required
Page 10 of 20
Draft 12-19-18
by the Town of Ithaca Code or by other local, state or federal requirements or regulations.
16. Ongoing Responsibilities of Grantor and Grantee.
Other than as specified herein, this Easement is not intended to impose any legal or other
responsibility on Grantee, or in any way to affect any obligations of Grantor as owner of the Property,
including, but not limited to, the following:
16.(a). Taxes
Grantor shall be solely responsible for payment of all taxes and assessments levied against the
Property.
16.(b). Upkeep and Maintenance
Grantor shall be solely responsible for the upkeep and maintenance of the Property, to the
extent required by law and this Easement. Grantee shall have no obligation for the upkeep or
maintenance of the Property.
16.(c). Liability and Indemnification
Grantor agrees to fully defend, indemnify and hold harmless Grantee, its elected officials,
public officers, employees, and agents from and against all claims, actions, suits, demands,
damages, liabilities, obligations, losses, settlements, judgments, costs and expenses
(including without limitation reasonable attorney's fees and costs), whether or not involving
a third party claim, which any or all of them may incur, resulting from bodily injuries (or
death) to any person, damage (including loss of use) to any property, other damages, or
contamination of or adverse effects on the environment, related to the Property, or caused
by the acts or omissions of Grantor or Grantor's employees or agents in connection with the
Property, unless due to the negligence of Grantee or its agents, in which case liability shall
be apportioned accordingly.
17. Extinguishment of Development Rights.
Except as otherwise reserved to the Grantor in this Easement, all non-agricultural development rights
appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on
or transferred to any portion of the Property as it now or hereafter may be bounded or described, or to
any other property adjacent or otherwise, or used for the purpose of calculating permissible lot yield of
the Property or any other property.
18. Baseline Documentation.
By its execution of this Easement, Grantee acknowledges that the present uses of, and related
structures and improvements on the Property, are permitted by this Easement. In order to evidence
the present condition of the Property so as to facilitate future monitoring and enforcement of this
Easement, a Baseline Documentation Report, including relevant maps and photographs, describing
such condition at the date hereof, has been prepared and subscribed by both parties, and a copy
thereof has been delivered to Grantor and a copy will be kept on file with Grantee. The Report may
be used by Grantee to establish that a change in the use or character of the Property has occurred, but
its existence shall not preclude the use by Grantee of other evidence to establish the condition of the
Property as of the date of this Easement.
Page 11 of 20
Draft 12-19-18
19. Right of Inspection.
Grantee shall have the right to enter upon the Property with forty-eight (48) hours advance notice to
Grantor for the purpose of inspecting for compliance with the terms of this Easement. Such
inspection shall be conducted between the hours of 9 a.m. and 7 p.m. on a weekday that is not a
legal holiday recognized by the State of New York or at a date and time agreeable to the Grantee
and Grantor. In the instance of a violation or suspected violation of the terms of this Easement
which has caused or threatens to cause irreparable harm to any of the agricultural or other resources
this Easement is designed to protect, no such advance notice is required.
20. Enforcement.
If Grantee determines that a violation of this Easement has occurred, Grantee shall so notify Grantor,
giving Grantor thirty (30) days to cure the violation. Notwithstanding the foregoing, where Grantee in
Grantee's sole discretion determines that an ongoing or threatened violation could irreversibly
diminish or impair the Purpose of this Easement, Grantee may bring an action to enjoin the violation,
ex parte if necessary, through temporary or permanent injunction.
In addition to injunctive relief, Grantee shall be entitled to seek the following remedies in the event of
a violation: (a) money damages, including damages for the loss of the resources protected under the
Purpose of this Easement; and (b) restoration of the Property to its condition existing prior to such
violation.
Said remedies shall be cumulative and shall be in addition to all remedies now or hereafter existing
at law or in equity. In any case where a court finds that a violation has occurred, Grantor shall
reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including,
but not limited to, reasonable attorneys' fees. The failure of Grantee to discover a violation or to
take immediate legal action shall not bar Grantee from doing so at a later time. In any case where a
court finds no violation has occurred, each party shall bear its own costs.
21. Dispute Resolution.
If a dispute arises between the Grantor and the Grantee concerning the consistency of any proposed
use or activity with the purposes of this Easement or any of the specific provisions contained
herein, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute,
either party may request a meeting between the parties, or refer the dispute to mediation by written
request. Within ten (10) days of such request, Grantee shall schedule a meeting or the parties shall
select a single trained and impartial mediator knowledgeable about production agriculture to
recommend potential resolutions of the dispute. Reasonable costs associated with the mediation
process shall be determined by the impartial mediator. Nothing in this clause shall diminish
Grantee's rights under Section 20 ("Enforcement").
22. Transfer of Easement.
Grantee shall have the right to transfer this Easement to any private non-governmental organization or
public agency that, at the time of transfer is a "public body" or "not-for-profit conservation
organization" as defined by Article 49 of New York State Environmental Conservation Law and is a
"qualified organization" under Section 170(h) of the Internal Revenue Code, provided the transferee
expressly agrees to assume the responsibility imposed on Grantee by this Easement. If Grantee ever
ceases to exist or qualify under Article 49 of New York State Environmental Conservation Law and
Page 12 of 20
Draft 12-19-18
Section 170(h) of the Internal Revenue Code, a court of competent jurisdiction shall transfer this
Easement to another qualified organization having similar purposes that agrees to assume the
responsibilities imposed by this Easement. Grantor must be notified in writing in advance of any such
transfer.
23. Transfer of Property.
Any subsequent conveyance, including, without limitation, transfer, lease or mortgage of the
Property, shall be subject to this Easement, and any deed or other instrument evidencing or
effecting such conveyance shall contain language substantially as follows: "This {conveyance,
lease, mortgage, easement, etc.} is subject to a Conservation Easement which runs with the land
and which was granted to the Town of Ithaca by instrument dated , and
recorded in the office of the Clerk of Tompkins County by Instrument No. "
Grantor shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any
part thereof or interest therein, to any third party. The failure to notify Grantee or to include said
language in any deed or instrument shall not, however, affect the validity or applicability of this
Easement to the Property or limit its enforceability in any way.
24. Amendment of Easement.
This Easement may be amended only with the written consent of Grantee and current Grantor. Any
such amendment shall be consistent with the Purpose of this Easement and shall comply with the
Environmental Conservation Law or any regulations promulgated thereunder, and shall not
unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25 -AA
of the Agriculture and Markets Law or such successor law as enacted or amended. Any such
amendment to this Easement shall be duly recorded.
25. Extinguishment of Easement.
At the mutual request of Grantor and Grantee, a court with jurisdiction may, if it determines that
conditions surrounding the Property have changed so much that it becomes impossible to fulfill the
Purpose of this Easement described in Section 2 ("Purpose"), extinguish or modify this Easement in
accordance with applicable law. The mere cessation of farming on the Property shall not be
construed to be grounds for extinguishment of this Easement.
Notwithstanding the foregoing, if condemnation by exercise of the power of eminent domain makes
impossible the continued use of all or such portion of the Property for the Purpose of this Easement
as described in Section 2 ("Purpose") herein, the restrictions may be extinguished as to any such
portion so condemned by judicial proceeding. Upon any subsequent sale, exchange or involuntary
conversion (pursuant to this Section) by the Grantor, Grantee shall be entitled to a portion of the
proceeds from any subsequent sale or other disposition of the Property, or title insurance proceeds,
in accordance with Section 26 ("Proceeds") herein.
In the event that Grantor retains the Property subsequent to any such extinguishment or partial
extinguishment, Grantee shall be entitled to receive from Grantor an amount equal to the fair
market value of the Property or a portion of the Property as to which the extinguishment applies
times the percentage determined under Section 26.
26. Proceeds.
Page 13 of 20
Draft 12-19-18
The grant of this Easement gives rise to a property right, immediately vested in Grantee, which, for
purposes of calculating value in the event of any such extinguishment or partial extinguishment or
proceeds from a sale or other disposition of the Property as contemplated under Section 25
("Extinguishment of Easement"), shall have a value equal to a percentage of the value of the Property
unencumbered by this Easement (the "Proportionate Share"). The Proportionate Share is determined
by dividing the value of this Easement, calculated as of the date hereof, by the unencumbered value of
the Property, also calculated as of the date hereof. The Proportionate Share is 43.1%. The
Proportionate Share shall remain constant (subject to reasonable adjustment to the extent permissible
under Section 170(h) of the Internal Revenue Code for any improvements which may hereafter be
made on the Property).
27. Interpretation.
This Easement shall be interpreted under the laws of the State of New York without regard to, or the
application of, New York State's choice of law provisions. Any general rule of construction to the
contrary notwithstanding, this Easement shall be liberally construed to affect the Purpose of this
Easement. If any provision in this Easement is found to be ambiguous, an interpretation consistent
with the Purpose of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
28. Successors.
Every provision of this Easement that applies to Grantor or Grantee shall also apply to their respective
agents, heirs, executors, administrators, assigns, and other successors in interest, and shall continue as
a servitude running in perpetuity with the Property.
29. Severability.
Invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof, by court
order or judgment shall in no way affect the validity of any of the other provisions hereof which shall
remain in full force and effect.
30. Notices.
Any notice required or desired to be given under this Easement shall be in writing and shall be sent
by (i) personal delivery, (ii) via registered or certified mail, return receipt requested, or (iii) via
Federal Express or other private courier of national reputation providing written evidence of
delivery. Notice shall be deemed given upon receipt in the case of personal delivery, and upon
delivery by the U.S. Postal Service or private courier. All notices shall be properly addressed as
follows: (a) if to Grantee, at the address set forth above; (b) if to Grantor, at the address set forth
above; or (c) if to any subsequent owner, at the address of the Property. Any parry can change the
address to which notices are to be sent to him, her or it by duly giving notice pursuant to this
Section.
31. Title.
The Grantor covenants and represents that the Grantor is the sole owner and is seized of the
Property in fee simple and has good right to grant and convey the aforesaid Easement; that the
Property is free and clear of any and all mortgages not subordinated to this Easement, and that the
Grantee shall have the use of and enjoyment of the benefits derived from and existing out of the
aforesaid Easement.
Page 14 of 20
Draft 12-19-18
32. Subsequent Liens on Property.
No provisions of this Easement should be construed as impairing the ability of Grantor to use this
Property, or a portion thereof encompassing entire separately deeded parcels, as collateral for a
subsequent borrowing. Any subsequent liens on the Property must be subordinate to this Easement.
33. Subsequent Encumbrances.
The grant of any easements or use restrictions is prohibited, except with the permission of Grantee.
Any future encumbrances shall be consistent with the primary Purpose of this Easement and shall not
unreasonably restrict or regulate farm operations in contravention of the purposes of Article 25 -AA of
the Agriculture and Markets Law.
34. Grantor's Environmental Warranty.
Grantor warrants that it has no actual or suspected knowledge of a release or threatened release of
hazardous substances or wastes on or under the Property, as such substances and wastes are defined by
applicable law, and has no actual or suspected knowledge of any violations of any federal, state or
local environmental laws, and hereby promises to hold harmless, defend, and indemnify Grantee, its
elected officials, public officers, employee and agents against and from, any and all loss, cost, claim,
action, suit, demand, damage, obligation, settlement, judgment, liability or expense (including without
limitation reasonable attorneys' fees and costs) arising from or with respect to any release of hazardous
wastes or hazardous substances or violation of federal, state or local environmental laws.
If at any time after the effective date of this Easement there occurs a release in, on, under or about
the Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to
any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or
otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human
health or the environment, Grantor agrees to take all steps that may be required under federal, state,
or local law necessary to assure its containment and remediation, including any cleanup.
Nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, to
exercise physical or management control over the day-to-day operations of the Property, or any of
Grantor's activities on the Property, or otherwise to become an owner, operator or arranger with
respect to the Property within the meaning of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA") or any corresponding state or
local statute or ordinance.
35. Duration of Easement.
Except as expressly otherwise provided herein, this Easement shall be of perpetual duration, and no
merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or
subsequent deed, grant, or assignment of an interest or estate in the Property, or any portion thereof, to
Grantee, it being the express intent of the parties that this Easement not be extinguished by, or merged
into, any other interest or estate in the Property now or hereafter held by Grantee.
36. Entire Agreement.
This instrument sets forth the entire agreement of the parties with respect to the Easement and
supersedes all prior discussions, negotiations, understandings and agreements relating to the
Page 15 of 20
Draft 12-19-18
Easement, all of which are merged herein. No alteration or variation of this instrument shall be
valid or binding unless contained in an amendment that complies with Section 24 ("Amendment of
Easement").
37. Waiver.
No waiver by Grantee of any default, or breach hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default or breach hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence. No waiver shall be binding unless executed in
writing by Grantee.
38. Binding Effect.
The provisions of this Easement shall run with the Property in perpetuity and shall bind and be
enforceable against the Grantor and all future owners and any party entitled to possess or use the
Property or any portion thereof while such party is the owner or entitled to possession or use
thereof. Notwithstanding the foregoing, upon any transfer of title, the transferor shall, with respect
to the Property transferred cease being a Grantor or owner with respect to such Property for
purposes of this Easement and shall, with respect to the Property transferred, have no further
responsibility, rights or liability hereunder for acts done or conditions arising thereafter on or with
respect to such Property, but the transferor shall remain liable for earlier acts and conditions done
or occurring during the period of his or her ownership or conduct.
39. Captions.
The captions in this instrument have been inserted solely for convenience of reference and are not a
part of this instrument and shall have no effect upon construction or interpretation.
Page 16 of 20
Draft 12-19-18
IN WITNESS WHEREOF, Grantor and Grantee, intending to be legally bound hereby, have hereunto
set their hands on the date first above written.
Grantor:
Joseph S. Mallon Maria D. Mallon
Grantee: Town of Ithaca
By:
William D. Goodman, Town Supervisor
.S ate of New York
County of ), ss:
On the day of in the year 20 before me, the undersigned, 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.
Signature/office of individual taking acknowledgement
State of New York
County of ), ss:
On the day of in the year 20 before me, the undersigned, 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.
Signature/office of individual taking acknowledgement
Page 17 of 20
Draft 12-19-18
State of New York
County of ), ss:
On the day of in the year 20 before me, the undersigned, 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.
Signature/office of individual taking acknowledgement
Page 18 of 20
Draft 12-19-18
Exhibit A
Legal Survey Description of the Property
Page 19 of 20
Draft 12-19-18
Exhibit B
Easement Map
Page 20 of 20
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Purchase of Development Rights Agreement
and Sales Contract
This Agreement, made this day of Two Thousand and Nineteen
(2019);
Between,
Joseph S. Mallon and Maria D. Mallon, having an address of 471 Bostwick Road,
Ithaca, NY 14850, hereinafter described as the SELLER,
and
the Town of Ithaca, a New York municipal corporation, having an office at 215
North Tioga Street, Ithaca, NY 14850, hereinafter described as the PURCHASER.
Witnesseth, that the SELLER agrees to sell and convey, and the PURCHASER
agrees to purchase the Development Rights, as hereinafter defined, for all that
certain plot, piece or parcel of land, situate, lying and being in the Town of Ithaca in
the County of Tompkins and State of New York, more particularly described as set
forth in Exhibit "A" (hereafter the "Property").
1. For purposes of this Agreement, the term "Development Rights" shall mean:
the permanent legal interest and right to prohibit or restrict the use of the
Property for anything other than agricultural production or uses compatible
with the provisions of Section 247 of the General Municipal Law, now, or as it
may be amended. The Development Rights to be acquired by the
PURCHASER and the rights of the SELLER are further defined and are set
forth in the Deed of Conservation Easement, a draft of which is attached as
Exhibit B. "Farm Operations," for the purpose of this Agreement, shall follow
the definition set forth in Section 301 of New York Agriculture & Markets Law.
2. The sale of the Development Rights by SELLER shall be consummated by
the execution and delivery by SELLER of a Deed of Conservation Easement
to PURCHASER. It is understood and agreed by and between the parties to
this Agreement that the Deed of Conservation Easement shall establish a
perpetual Conservation Easement to be held by PURCHASER.
The Deed of Conservation Easement will restrict the use of the Property so
as to conserve viable agricultural land and soil resources and prevent uses
of the Property that will significantly impair or interfere with the Property's
agricultural and forestry viability and productive capacity. The Deed of
Conservation Easement will further protect the said Property by providing for
monitoring and the review of actions on the Property.
3. The authority and purpose of the PURCHASER are limited to acquiring the
Development Rights in the Property as stated above.
4. The Purchase Price is Seventy Eight Thousand and no/100 Dollars
($ 78,000 ), based on the representation of the SELLER that the Property
contains 51.72 +/- acres of cropland and supporting acres.
The Purchase Price is payable in certified funds or wire transfer at closing
upon delivery of the fully executed Conservation Easement.
5. PURCHASER has or shall provide, at the PURCHASER'S expense, the
following:
A. Owner's title insurance policy with coverage of $ 78,000 (the value of
the Development Rights of the Property as determined by an Appraisal as
set forth below in paragraph 5E) and must reasonably and adequately
insure the title to the Property and name as the insured the
PURCHASER, and such other parties to the Deed of Conservation
Easement as the PURCHASER may designate.
B. Tax and title search or searches prepared by which
covers the Property only. The first setout of the search shall be a
Warranty Deed recorded at least sixty (60) years prior to the date of the
title search and the search will otherwise be in such form as to allow the
title insurance company to issue a policy without exceptions to the length
or other aspects of the title search. The search shall be continued
through the date of closing.
C. Survey of the Property prepared by T.G. Miller P.C., titled
" " and dated The survey has been
prepared according to the Code of Practice for Land Surveys as adopted
by the New York State Association of Professional Land Surveyors and
shows the Property, location of all buildings, other structures and
improvements on or affecting it and the location of the Farmstead
Complex, Farm Area, Resource Protection Area and other areas defined
in the Conservation Easement.
D. Baseline Documentation Report for the Property will be prepared by the
PURCHASER.
E. An Appraisal dated August 1, 2018 prepared by North East
Appraisals & Management Co., Inc., a New York State certified real
estate appraiser setting forth the value of the Development Rights of the
Property (being the difference between the value of the Property before
and after the Deed of Conservation Easement is granted). The appraiser
will certify the Appraisal to the PURCHASER. If the SELLER anticipates
needing an Appraisal to document a federally deductible contribution, the
PURCHASER will direct the appraiser to prepare at SELLER'S expense a
second original of the Appraisal, certified to the SELLER and otherwise
conforming to applicable requirements of the Internal Revenue Code.
F. Any recording fees and New York State transfer taxes required to record
the Deed of Conservation Easement and to record or file any other
documents required to clear title to the Property.
6. It is acknowledged between the PURCHASER and SELLER that the
appraised value of the Development Rights as determined by the appraisal
(see paragraph 5E above) prepared by North East Appraisals &
Management Co., Inc. and dated August 1, 2018 is $ 78,000
7. The final form of the Deed of Conservation Easement shall be approved by
the SELLER and PURCHASER and shall be duly executed and
acknowledged so as to convey to the PURCHASER the Development Rights
for the Property, free of all liens and encumbrances, except as herein stated.
The Deed of Conservation Easement shall run with the land in perpetuity.
IAEW
8. The PURCHASER'S liability under this Agreement is contingent upon:
A. The Property being in substantially similar condition on the date of closing
as it is as of the date of this Agreement.
9. The Development Rights to the Property are to be conveyed subject only to:
A. Any state of facts an accurate survey may show, providing same does not
render title to the Development Rights unmarketable and that any
encroachments upon the Property disclosed by the survey are removed;
B. Covenants, easements, restrictions of record, if any, provided the same
do not prevent or impair the use of the Property for Farm Operations as
defined herein or have the potential to extinguish or substantially
" adversely affect the Purpose set forth in the Deed of Conservation
Easement, and further provided that such covenants, easements, or
restrictions do not diminish the appraised value of the Property as
determined pursuant to paragraph 5E above, and, in the case of
covenants or restrictions, have not been violated; and
10. The PURCHASER may make its determination of whether the Property is
free from all encumbrances on the basis of its own examination of the title, or
that of its agents, or by a title report prepared by a member company of the
Title Insurance Rate Service Association, Inc., and may require the SELLER
to clear title exceptions disclosed by an examination or report to the
satisfaction of the PURCHASER and the title insurer. Such encumbrances
may include but are not limited to mortgages or other like liens affecting the
Property, which encumbrances must be discharged, satisfied or
subordinated to the Conservation Easement.
11. If, at the date of closing, there are any other liens or encumbrances which
the SELLER is obligated to pay and discharge, the SELLER may use any
portion of the balance of the Purchase Price to satisfy the same, provided
that at closing the SELLER shall at closing deliver to the PURCHASER, in
recordable form, such instruments sufficient to satisfy the liens and
encumbrances of record, together with the cost of recording and/or filing the
instruments. The SELLER agrees to sign such proper vouchers for the
closing check(s) as may be requested by the PURCHASER at least two
weeks prior to the date fixed for closing. The PURCHASER, if request is
made within a reasonable time prior to the date of closing of title, agrees to
provide at the closing separate checks as requested, aggregating the
amount of the Purchase Price, to facilitate the satisfaction of any liens and
encumbrances. The existence of any such taxes or other liens and
encumbrances shall not be deemed objections to title if the SELLER shall
comply with the foregoing requirements.
12. If a search of the title discloses judgments, bankruptcies or other liens
against other persons having names the same or similar to that of the
SELLER, the SELLER will, on request, deliver to the PURCHASER an
affidavit showing that such judgments, bankruptcies or other returns are not
against the SELLER, if such is the case. The recording of any title affidavits
and/or curatives shall be at the expense of the PURCHASER.
13. In the event that the SELLER is unable or unwilling to convey the
Development Rights for the Property in accordance with the terms of this
Agreement, the sole liability of the SELLER will be to pay PURCHASER for
any of the following payments, obligations to pay others or expenses which
PURCHASER or its agents have actually incurred (and have not been
otherwise reimbursed): h -
A. Tax and title search or searches as set forth in Section 5B above;
B. The survey of the Property as set forth in Section 5C above;
C. Title Insurance as set forth in Section 5A above, including the cost of
canceling any ordered title insurance policy or any costs incurred by
PURCHASER or its agents in preparing a requested title insurance policy;
however such costs will not be more than the anticipated cost of the title
insurance policy as fixed by the New York State Title Insurance Rate
Service Association, Inc.;
D. The Baseline Documentation Report as set forth in Section 5D above;
E. The appraisal as set forth in Section 5E above;
F. Recording fess and/or taxes as set forth in Section 5F above;
Upon receipt by PURCHASER of notice from SELLER that SELLER wishes
to cancel this Agreement, PURCHASER will stop all work in relation to this
Agreement and will provide SELLER with a written statement detailing the
amount of each of the expenses described above. Upon SELLER making
the required payment to PURCHASER, this Agreement shall be considered
canceled.
14. Any expenses PURCHASER incurs in relation to the items set forth in
Section 5, if any, are hereby made liens on the Property, but such liens shall
not continue after the delivery of the Conservation Easement to
PURCHASER and its recording or after the cancelation of this Agreement as
provided in Section 13 above.
15. This transaction shall be closed and the Deed of Conservation Easement
delivered to PURCHASER at such date, time and place as SELLER and
PURCHASER mutually agree upon.
If a closing does not occur within one year of the date of the execution of this
Agreement, SELLER, at its option, may cancel this Agreement by serving
written notice by registered mail upon PURCHASER and, upon payment to
PURCHASER for all of the items listed in paragraph 13, this Agreement shall
become null and void and there shall be no further liability upon either party
hereto. ""W
16. The parties agree that no broker brought about this transaction and the
SELLER agrees to hold PURCHASER harmless and to indemnify
PURCHASER for any claims for broker commissions arising out of this
transaction.
17. The SELLER herein agrees to comply with all disclosure requirements, if
any, as imposed upon the SELLER through the various and several local or
state laws and resolutions applicable to this transaction.
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18. The SELLER further agrees to execute and file all affidavits, documents and
vouchers as required by local laws, regulations, ordinances, statues and
resolutions applicable to this transaction.
19.The SELLER represents that the PROPERTY is agricultural land used for
Farm Operations as defined herein. At no time, to the SELLER's knowledge,
has the Property been used for the generation, storage, or disposal of
hazardous substances, or, as a landfill or other waste disposal site. To the
SELLER'S knowledge, there are not now, nor have there ever been,
underground storage tanks on the Property.
20. The SELLER represents that there are no actions, suits, claims or
proceedings seeking money damages, injunctive relief, remedial action or
any other remedy pending or threatened relating to the violation or
noncompliance with any environmental law, or the disposal, discharge or
release of solid wastes, pollutants or hazardous substances, or exposure to
any chemical substances, noises or vibrations to the extent the same arise
from the condition of the Property or SELLER'S ownership or use of the
Property.
21. The SELLER represents that no consent or approval is needed from any
governmental agency for this proposed conservation easement transaction
between the SELLER and the PURCHASER, and neither the execution of
this Agreement, nor the closing of title, will violate any environmental or other
law.
22. The representations and warranties contained in the six proceeding
paragraphs (16, 17, 18, 19, 20 & 21) shall survive the closing, shall be
binding upon SELLER and its successors and assigns, and shall inure to the
benefit of the PURCHASER and its successors and assigns.
23. SELLER covenants and agrees that it will defend, indemnify, and hold
harmless the PURCHASER against any and all damages, claims, losses,
liabilities, and expenses, including, without limitation, responsibility for legal
consulting, engineering and other costs and expenses which may arise out
of (1) any inaccuracy or misrepresentation in any representation or warranty
made by the SELLER in this AGREEMENT; (2) the breach or
nonperformance of any covenants required by this Agreement to be
performed by the SELLER, either prior to or subsequent to the closing of title
herein; (3) any action, suit, claim, or proceeding seeking money damages,
injunctive relief, remedial action, or another remedy by reason of a violation
or noncompliance with any environmental law; (4) the disposal, discharge or
release of solid wastes, pollutants or hazardous substances; or (5) exposure
to any chemical substances, noises or vibrations to the extent they arise from
ownership, operation, and/or condition of the Property prior to or subsequent
to the execution of the Deed of Conservation Easement. This covenant shall
run with the land in perpetuity and the provisions of this paragraph shall
survive the delivery of the Deed of Conservation Easement.
24. It is understood and agreed that all understandings and agreements
between the parties hereto are merged in this Agreement, which, with the
exhibits, fully and completely express their agreement, and that the same is
entered into after full investigation, neither party relying upon any statement
or representation, not embodied in this Agreement, made by the other.
25. Each party hereto acknowledges and agrees that it has not received and is
not relying upon tax or other advice from any other party hereto, and that it
has and will continue to consult its own advisors. PURCHASER makes no
representation or warranty whatsoever regarding the tax treatment to
SELLER of this Agreement.
26. Any notice required or desired to be given under this Agreement shall be in
writing and shall be sent to the address set forth above for the party (1) by
personal delivery; (2) via registered or certified mail, return receipt requested;
or (3) via Federal Express or other private courier of national reputation
providing written evidence of delivery. Notice shall be deemed given upon
receipt in the case of personal delivery and upon delivery by the U.S. Postal
Service or private courier.
27. This Agreement may not be changed or terminated orally. The promises,
representations and agreements in this Contract are to apply to and bind the
heirs, executors, administrators, successors, and assigns of the respective
parties.
28. The SELLER represent and warrant that they have not offered or given any
gratuity to any official, employee, or agent of PURCHASER, or any political
party, with the purpose or intent of securing favorable treatment with respect
to the performance of this Agreement.
-AMI Nk
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto the day and year first above written. 440
IN PRESENCE OF:
PURCHASER:
SELL
William D. Goodman, Town Supervisor
Town of Ithaca qm&,awsowwh., IML
Maria D. Mallon
State of New York )
County of ), ss:
On the day of in the year 20_ before me, the undersigned,
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.
Aff
Signature/office of individual taking acknowledgement
State of New York )
Countv of 1. ss:
so
0
On the day of in the year 20_ before me, the undersigned,
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.:
6� X-
Signature/office of individual taking acknowledgement
State of New York )
County of ), ss:
On the day of in the year 20_ before me, the undersigned,
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.
Signature/office of individual taking acknowledgement
Exhibit A
Legal Survey Description of the Property
Exhibit B
Deed of Conservation Easement (draft)