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HomeMy WebLinkAbout273643-001r •.. ..... -.:m :fir .. .- .- ,. ulti 72 Pat 289 LICENSE A RIGHT OF FIRST OFFERING THIS AGREEMENT made this filth day of June, 1998, by and between Cornell University and Noah's Boat Club, Inc., a wholly-ownedsubsidiary of Cornell University. do Real Estate Department, Box DH, Ithaca. New York 14853, hereinafter sometimes collectively called "Cornell", and the Town of Ithaca, do Town Hall,126 East Sena Street. Ithaca, New York 14850, hereinafter called the "Town". WITNESSETH: • WHEREAS, Cornell University desires to construct its Lake Source Cooling (LSC) j Town Ithaca Tax Parcel project, including a Heat Exchange facility to be built on of No. 19-1-5 at Cayuga Lake; and WHEREAS, the site of the Heat Exchange facility requires the creationof Special W Land Use District (SLUD) and Site Plan Approval from the Town and the Town Planning Board respectively; and WHEREAS, Noah's Boat Club, Inc., is the owner of certain real estate known as the point north of the marina on East Shore Drive in the Town of Ithaca, County of Tompkins. an State of New York, hereinafter called the "park" or the "premises," and more ' particularly described on Exhibit "A" attached hereto and made a part Mieott and e WHEREAS, Cornell and the Town would like to make provision for Public nos hev�3 promises and a possible future offer of related premises to the Town. •- g�' . NOW, THEREFORE, far good and valuable consideration, s TICENRIt 1. QCattf:: Cornell hereby grants to the Torn ths. right to use, occupy. and maintain the preminrdescribed'beraW for the PurP00e8. aad.oa the •tw-w mad conditions described within, in i dzd&"W=, tVWch the Tows •ander4dw and agrees to said teems aeNl oonditicas; 1 i gll 72 tut 290 4- aMMkn Cornell punts a Hoene to the Town in and to drs said prom isle ibr a Town park public recewtionsl am" to Cayuga Lake, and eoseie oesrlook purposes, only Cornell also grants to the Town the right to use the driveway shown on said "Exhibit A," in common with Cornell and its successors and assigns, for ingress and egress only. If in the course of developing the balance of the Property any Town agency requires Cornell, its assigns or successors, to have a wider driveway for access, the Town will by license, easement, or other legal device mutually satisfactory to the parties, make available.'to { Cornell such additional portion of the premises as any Town agency requires of such development for driveway width. In the event of such easement or other transfer of use, Cornell or its assigns or successors shall then become fully responsible for the maintenance and legal liability for such parcel. 3. Term andCommencement: The term of this Born@ shall be ninety-nine (99) years, unless sooner terminated as hereinafter provided, commencing upon the completion • of Cornell's Lake Source Cooling project (hereinafter the "project"). as completion is defined �. in Corneirs reasonable discretion, or upon completion of so much of it as Cornell, in its sole judgment, deems adequate to enable Cornell to turn the park over to the.Town without interfering with the completion of the project by Cornell. In any event, the park shall be turned over to the Town within three (3) years after the issuance of any certificates of occupancy for the Heat Exchange Facility. 4. Condition The park shall be turned over to the Town with trees and shrubs planted, the site graded and seeded, railroad ties placed as demarcation of the parking area • , substantially as shown on Exhibit 'B," and gravel parking area created as shown on "Exhibit B." 6, Resemation' Cornell reserves the right to plies, whether prior to j commencement of, or during the term of this license. and thereafter maintain, underground like water intake and outfall pipes and any associated underground boxes, structures improvements, monitors,'controls, valves and other equipment or.services, whether now or hereafter reasonably necessary or required for the project, in the area shown on said Exhibit "A" as "piping easement," together with atgrade, covered, secure access thereto. Cornell further reserves the right to access the -piping easement at any time during the term for purposes of inspection, maintenance, repair, replacement, modification, or additions. In ;he event it is required for safety or otherwise reasonably necessary, Cornell may, upon a minimum of fifteen (lb) days advance notice to the Town, close public access to the park or so much of the park as necessary, for such reasonable periods of time as may be -Z- ,.,..us...,:,.•....w.,.a,..wow+�r.w<;,�w.:._.w..�...,s,._..,.._..... _... ...._ ... ___..._..._,_...,.._..,..,.,..,.�..�w ._ .. f •s reasonably necessary to perform such inspection, maintenance, repair, replacement. modification, or additions. However, no advance .notice shall be required in the case of an emergency. The Town shall not dig holes or trenches, or plant any tram, or 'benatruct any permapent structures in the piping eapement without Cornelia advaidi approval. (k, Imerouemcnts: The Town shall be tree to place or construct any removable improvements for passive use of said area including. without limitation, picrAc tables, park benches, trash receptacles, or other similar structures and equipment. Any such improvements installed by the Town shall be maintained in a good working order at the, Town'r expense. The Town shall not dispose of any debris on the Property, and if any in disposed of on the premises by any person, the Town shall be responsible Gor the policing of the property and keeping the area reasonably clean. 71 No Tra This license may not be transferred or assigned. 1 g, Tmr. The Town agrees to pay any and all taxes, assessments, or similar ' charges, that may be imposed against the premises by reason of the license, or the Town's i use of said premises, such as increased taxes due to Town improvements or use. Come f will pay all other taxes, assessments, or similar charges, if any. 9„ Indmm�_ ircntinn: i (a) The Town will indemnity Cornell against, and will hold it barmless from, any claim, demand, action, suit, liability, or judgment, including the investigatory and legal cats that may be connected to, arise out of, or result in whole or in part (unless I due in whole or in part to the fault of Cornell, its employees, or agents) from the use or gccupancy of said premises (induding the gravel parking area to be maintained by Cornell) j by the Town, its agents, employees, contractors, invitees and guests, including the public. (b) Cornell will indemnify the Town against, and will hold it harmless from, any claim, demand, action, suit, liability, or judgment, including the investigatory and legal costs that may be connected to, arise out of, or result in whole at, in port (unless due in whole or in part to the fault of the Town, its employs", ar agents) related to the use or occupancy of said promises (arid the maintenance of the gravel parking area by Cornell) resulting >i m the negligerm at willful sat of Cornell, its agents. employees, omttsatees, invitass and guests. E 292 loll 72 %a 10. MWAka4M The Town agrees. at its espense, to maintain the premises, esdusive of those portions of the driveway not within the boundaq of the pieasises, in good order and repair, similar to that of other public parks or overlooks.Notwithstanding the abays, Cornell agrees to maintain the gravel parking area and that portion of the driveway located within the boundary of the promises. by replacing gravel as necessary, but shall not be responsible for snowplowing, for replacement or repositioning railroad ties at the edge of the gravel parking, or for trash removal. If any winter access to the premises over the driveway is desired, then snowplowing of the driveway shall be the Town's responsibility. The driveway shall be .maintained at its present level or condition by Cornell, 'or its successors and assigns (including Tenants), that is, as a seasonal road only. Nothing herein ' shall be construed to require Cornell or any other party to improve, pave, or plow the driveway for year-round use by the Town. 11. Default: In addition to any other remedies at law, in the event of the refusal or failure of the Town to comply with any of the foregoing undertakings, Cornell may upon . thirty (30) days notice specifying the default and providing opportunity to cure, and thereafter if not cured, terminate this license, remove the Town and the Town agrees. that in such event and upon demand it will immediately remove from and cease to use or occupy the said promises. • 12. E6dy Termination: (a) The Town may, at its option, at anytime terminate this License upon thirty (30) days written notice to Cornell. In the event the Town so elects to terminate, the town shall remove any improvements or facilities the Town. has placed on the Property (exclusive of the railroad ties), and leave the premises in substantially the same condition as when they were delivered to the Town. Upon completion of such removal, neither party shall have any further obligations or responsibilities under this License, except with respect to obligations or responsibilities accrued as of the date of termination. (b) If Cornell's right to operate the project is revoked or substantially curtailed and Cornell is unable or unwilling to correct or remove the impediments to continued operation for a period of 18 months, Cornell may, at its option, subject only to the following limitations, terminate this License upon twelve (12) months written notice to the Town. Provided, however, that such right of early termination may not be exercised by Cornell within the first ten (10) years titer the commencement data of this License, nor after the expiration of the 28th year after the commencement date of this License. •4, I I e ' PiXQf'h'NM}Ml-�-nwN.N�Xw»n.n.Mr.yyYNgi'iWWVAfVepvfuY'MIP1lsw+,A/MrrH+Y+�axwM-!.MAwf Yl.vvMM' 3! (�lla 72 MGE 293 In the event Cornell so elects to terminate, the Town may remove any improvements or facilities the Town has placed on the Property, and shall leave the premises in a neat and orderly condition with any areas from which improvements or facilities were removed, regraded, seeded, or otherwise restored. Upon completion of such t ( removal, any remaining improvements or facilities shall be the Property of Cornell and neither party shall have any further obligations or responsibilities under this License, except with respect to obligations of responsibilities accrued as of the data of termination. . II. RIGHT OF FIRST OFFERING • Cornell agrees that in the event it plans to offer the 19. eg t o era enn4' � Property located on the west side of East Shgre Drive, or any part of it (the "Property"), or 1 in combination of it with any other property for sale, then it shall first, before offering the Property for sale to anyone also or to the public, offer it to the Town. There shall be excepted any sale or transfer between Nosh's and Cornell, or any other wholly -owned subsidiary of Cornell, however, in the event of such excepted transfer, Cornell or such subsidiary shall continue to be bound by this Section II and to the extent applicable, the other provisions of this agreement. Cornell shall state the offering price for the Property } and any other terms in a written letter, sent in the same manner as notices hereunder. The 1 Town shall have forty-five (45) days in which to consider Cornell's offering price and any other terms, and elect to meet them or make a written offer. If at the end of such forty-five 45) days the parties have not entered into any contract for the sale of the Property to the , Town, then Cornell shall be free to offer the Property to.a third -party, and accept any offer { so long as the purchase price in such offer is not less than ninety percent (90%) of the price at which the Property was offered to the Town, and all the Town's rights under this Section II shall terminate forever upon such sale to the said third -party, so long as concluded . within eighteen (18) months and forty-five (45) days of the said offer to the Town, with an extension of eighteen (A) additional months available to Cornell and said third -party, provided Cornell and said third -party can demonstrate they are diligently pursuing development approvals and permits. if Cornell does accept an offer for less than ninety percent (90%) of the price at which the Property was offered to the Town, it shall be subject to the Town's right herein and Cornell shall notify the Town of the proposed price and . supply the Town with a true copy of such offer and the Torn shall have seven (7) calendar days in which to most such offer in writingBut if the Town shall not most such offer, then z, all the Town's rights under this Section II shall terminate forever upon such Sala to tbe said i third -party, so long as concluded within eighteen (18) months and seven (7) days of i r6. • t H; a ) , • .. t t l lllif ' 71 ma 294 - anbmission of the said offer to the Town, with an extension of sightsen, (18) additional months available to Cornell and said third -party, provided Cornell and said third -party can demonstrate they are diligently pursuing development approvals and permits. 14. Term afRight ni,Arst rime. The term of this right of first offering shall be ninety-nine (99) years flrom the commencement of the License herein described, unless the property has been sooner sold as provided above. The Town's right of first offering shall survive Cornell's early termination of the License, if any, unless the Property has been sooner sold as provided above, but shall not survive the Town's early termination of the License, if any. . III• CONDITIONS APP11CARLE TO BOTH LICENSE AND RIGHT OFRIGHT OF FIR_�'j' OFFERING 16. Hodges: Any notice hereunder shall be sent by certified of registered mail, return receipt requested, or by commercial express delivery service such as Federal Express, if to Cornell to: " Cornell University do Real Estate Department Box DH Ithaca, New York 14869 . and if to the Town: Town of Ithaca Town Supervisor • Town Hall • 126 East Seneca Street Ithaca, New York 14860 ar to snob other address as either party may designate (in the same tnanAW as .guy =doe) flrM Nme to time. Notices shall be be deemed received two (9) budnNs days aRee 6ing sent, le• ean&tian gi Rats: The grant of this License aAd tab Right ,Of First Offering by Cornell to the Town is conditional upon Cornell receiving all necessary approvals for the project, including, but not limited to approvals from any of the Town of Ithaca governing bodies, including the Town 'Board and the Town Planning Board, to , permit rezoning of the project property to permit construction of the heat exchange and t related fscWties for the project. Notwithstanding any other provisions of this agreement, the commencement of the term of the License granted hereunder shall not occur until all or the such approvals have been obtained and s building permit has been issued to Cornell f s � •s;.w,Awe:w.sW«+.,,+�.;:wwu•a.;........,,,.,..; .,,.... . ' t ` TY!T:'tIR 't�-s'rMrAwtiti.y.MyL..wU'n 'w+t,mYr... _.v-N.wi•.rr.._vr,�,w .., ... «+M�a�M.'�Yn'^.. ... I 72 rat 295 11 M rn • p11.ge.5eN1yMW.� rKta .K.,:�...+r. ...sA..y... x. ....taa•r. ✓. wv4.naYmrn.+..•r,rw+'+'x..5.r/•.^.MwY�MrIMw,MV�`.. .. AF�FYY!ie911YI�.,Mn _ 5 lilt 72 WE 297 construction of those portions of the project located within the Town's boundaries. In any event, if all such approvals are not obtained or said building permit not issued within five (5) years from the data of this agreement, pins any additional time during the pendancy Of any legal action challenging any appo or �pprovala granted for the prgject, or seeking Is stop ocnatruetioa of the project this went shall brooms void and of no tamand offeeL n;ntliag BZW: This Agreement shall be binding up the parties hereto and their respective successor a and askI6. IN WITNESS WHEREOF. the parties hereto have signed this License sad Hij6t of Fleet QlbeW as of the date flrit abere wltitten. TOWN OF rMCA CORNELL UNIVERSITY Frederick A. Rogers Senior Vice President A CFO NOAH'S BOAT CLUB, INC. By. �--- atriciaJohnson President e�? STATE OF NEW YORK 1 l .ww_• STATE OF NEW YORK ) COUN'!Y OF TOMPIMS ) On this l lth day of June, 1999. before me PasonahY cane FREDERICK A. ROGERS to me known. who. being by me duly sworn. did depose and say that he is the Sr. Vice President and CFO of Connell University, the corporation described in and which executed the above instrument; and that he signed his name thereto by authority of the Board of Trustees of said corporation. • Notary Pub DEBORAH 0.0£TRANDER Notary PuMw. State o1 New YWk No 4936629 ) Oualdied in iompkms County Canmomun Expuus July 6.191P' SPATE OF NEW YOIiK COUNTY OF TOMPMS ) On this llth day of June. 1999, before me personally came PATRICIA } JOHNSON to me known. who. being by me duly sworn, did depose and say that she is • the President of Noah's Boat Club. Inc.. the corporation described in and which t executed the above instrument: and that she signed her name thereto by authority of the Board of Directors of said corporation. Notary Pub soft" K. MAN y f NswMMts mm au~ in �plas° faer.f.i.