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AGREEMENT
THIS AGREEMENT made this 15th day of November, 1989, by
J.M.S. Ithaca Realty, Inc., a New York corporation, with an
office at 1001 West Seneca Street, Ithaca, New York, 14850, (the
"Owner"), and the TOWN OF ITHACA, a municipal corporation with
offices at 126 East Seneca Street, Ithaca, New York, 14850 (the
"Town").
WITNESSETH:
WHEREAS, Owner has heretofore requested site plan approval
of a certain development originally titled "Denby Road. Housing"
and more recently commonly known as "College Circle" located at
1033 Danby Road in the Town of Ithaca, Tompkins County, New York,
and more particularly shown on a site plan entitled "Site Plan
Danby Road Housing Town of Ithaca, New York" dated November 7,
1988, revised November 9, 1988, (hereinafter the "Site Plan") a
copy of which Site Plan is on file in the Town of Ithaca Planning
Department and a copy of which Site Plan is intended to be filed
in the Tompkins County Clerk's Office concurrently herewith, the
entire area encompassed on said Site Plan owned by Owner being
hereinafter referred to as the "Premises"; and
WHEREAS, the Town of Ithaca Planning Board on November 15,
1988, did•grant Final Site Plan Approval for said development
subject to certain other approvals; and
WHEREAS, one such other approval required was the approval,
by the Town Attorney and by the New York State Department of
Transportation Regional Engineer, prior to the issuance of any
building permit, of an agreement with respect to the private long
term maintenance of the proposed retention pond; and
WHEREAS, the said retention pond is shown on said Site Plan
as being bounded on the north by the pedestrian foot path, on the
west by property of Connelly (R.O.), Zussman (R.O.), and Pech
(R.O.) and on the east by buildings planned for the development
(said retention pond hereinafter being referred to as the
"Pond"); and
WHEREAS, the, Pond is necessary to control surface water
runoff from the proposed development on other portions of the
Premises; and
WHEREAS, the within agreement is executed for the purposes
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of providing for the maintenance of the Pond so long as the T wn
requires the Pond; and
WHEREAS, the terms of this agreement have been reviewed by
said Town Attorney and said Regional Engineer;
NOW, THEREFORE,,in consideration of the approval of the
Final Site Plan and in fulfillment of one of the conditi'ns
imposed during the•course of the Site Plan approval process Owtr
hereby agrees as follows:
1. Owner shall undertake and conduct regular and necessary
maintenance of the Pond, the storm drains leading to the Ponl3,
and the drains 'running from the Pond to the culvert along Route
96B. Such maintenance shall include all work deemed reasonably
necessary by the Town in itz sole discretion to preserve the Pond
for its intended purpose and shall at a minimum include removal
of any accumulations of silt from the Pond, drainage pipes, a,nd
related culverts; repair of any areas affected by erosion;
removal of any brush or bLher materials from the Pond basin or
dike; and, when dry, owing of the Pond basin, dike and
surrounding land.
2. The obligations imposed by this agreement are dee ed
covenants running with the land and shall bind Owner and Owner's
successors and assigns including any entity or person who
acquires title to all or any part of the Premises, unless the
Town agrees otherwise. owner agrees to make any conveyance of
the Premises subject to the terms of this agreement.
3. This agreement shall be recorded in the Tompkins County
Clerk's Office at Owner's expense. If possible, and if not
previously filed, a copy of the Site Plan will also be filed in
the Tompkins County Clerk's Office if accepted by the Tompkins
County Clerk. Whether or- not a Site Plan is so filed, this
agreement shall be binding upon the parties even in the absence
of the filing of the Site Plan.
4. In the event that Owner, its successors or assigns, does
not, after 15 days written notice of its failure to perform its
obligations as set forth herein, correct.any default, then the
Town may do so and all costs and expenses of correcting such
default (including any attorneys fees incurred by the Town in
enforcing this agreement) shall be immediately paid by Owner, and
its successors and assigns, if any, to the Town. Until such
payment, said costs and expenses shall constitute a lien on said
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Novarr.agr, Ithaca3, 11/15/89 2:25pm •
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property may be added to any taxes or tax bills that may be due
to the Town from the Owner, Owner's successors and assigns, and
may be collected and foreclosed in the same manner as if such
charges were: an unpaid ad valorem tax or unpaid special
assessment on the Premises.
5. Notice to, the Town under this agreement shall be
sufficient if' personally delivered to the Town Clerk, or mailed
by certified or registered mail to the Town Clerk at the address
set forth above or, if the Town Hall and Town Clerk's offices are
subsequently located elsewhere, to the address of the new
location of the Town Clerk's offices. Notice to the Owner shall
be sufficient if personally delivered to the Owner, or.a managing
agent of the Owner if the Owner is a corporation, or by mailing
such notice by registered or certified mail to the person or
entity shown to be the owner of the Premises on the latest tax
bill for the Premises issued by the Town. Such mailing shall be
to the address of such owner as,shown on such tax bill.
6. Notwithstanding the provisions set forth earlier in this
agreement relating to notice before curing a default, if in the
sole discretion of the Town an emergency situation exists and the
Town in its sole discretion determines immediate action is
necessary to alleviate the emergency, the Town may, but is not •
obliged to, enter the Premises without prior.notice and take such
action as may be, in the Towns sole discretion, reasonably
necessary to alleviate the emergency. Any reasonable costs so
incurred by the Town shall be paid by Owner immediately upon
demand,and upon failure to do so shall be subject to collection
as set forth above.
7. Owner agrees to obtain and maintain liability insurance
insuring against any damages or claims arising out of property
damage, personal injury or death arising out of the ownership and
maintenance of the Pond and its adjoining lands.' Such insurance
shall name the Town as an additional insured and be in amounts
and upon terms and contract fbrms as the Town may reasonably
require. Initially the minimum coverage shall be $1,000,000.00
per occurrence. Copies of policies, certificates or other proof
of insurance acceptable to the Town shall be provided to the Town
at least annually and shall provide that no cancellation of such
policies shall occur without at least ten days prior written
notice to the Town. Failure by the,.Town to enforce the
provisions of this paragraph shall not constitute a waiver of the
right to require insurance in subsequent years of this agreement,
even if this provision'is not enforced for a period in excess of
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Novarr.agr, Ithaca3, 11/15/89 2:25pm
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the normal statute of limitations.
8. This agreement shall remain in full force and effect so
long as the Pond is required by the Town.
9. This agreement may be modified by the mutual agreement
of the Town and the then owner of the Premises.
10. The Town agrees to furnish statements to Owner when
requested setting forth any claims for payment under this
agreement, provided, however, that no more than two requests for
such statements are made per year.
il. If any provision of this agreement is found invalid by
a court of competent jurisdiction such invalidity shall not
affect the remaining provisions of the agreement which provisions
shall continue to be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hAn4s
and seals on the day first above written.
{
J.M.S. ITHACA REAL Y, INC.
John Novarr �•
Vice President
TOWN OF ITHACA
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Novarr.agr, Ithaca3, 11/15/89 2:25pm
u 34 Pat 628
STATE OF NEW YORK )ss.:
COUNTY OF TOMPKINS )
On.this Ian` day of November, 1989, before me personally
came JOHN NOVARR, to me personally known, who, being by me duly
sworn, did depose and say that he resides in Ithaca, New York,
that he is the Vice -President of J.M.S. ITHACA REALTY, INC., the
corporation described in and which executed the within
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of s �s,�anidEMAN
corporation; and that he signed his ,name thereto by ]r,��y h3��te of New York
No.4907220
Qualified in Tompkins County q l
Notary Public Expires Sept 21.19,
l
STATE OF NEW YORK )
COUNTY OF TOMPKINS)ss.:
On this /L Y day of . November, 1989, before me, came Noel
Desch, to me personally known who, being by me duly sworn, did
depose and say that he resides at 132 Updike Road, Ithaca, New
York, and that he is the Supervisor of the Town of Ithaca, who
executed the within instrument, and he acknowledged to me that he
executed the same,, and that such execution was on behalf of the `
Town of Ithaca and that the Town Board of such Town duly
authorized such execution.
i
ary Public
MEN
Yo�rkµ i
�Coulmr A W-P
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Tompkins County, ss. / �rl>► 19.»L
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at page ...I....�t� X........... and examin0
ed. i� ti t,;:r..
................................................
Cleric.
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