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HomeMy WebLinkAbout458431-002No. of Pages: 8 Aurora R. Valenti TOMPKINS COUNTY CLERK 320 North Tioga Street Ithaca, NY 14850 607-274-5431 Fax: 607-274-5445 INSTRUMENT NUMBER *458431-002* Delivered By: ADAMS THEISEN MAY MILLER & Receipt No. 458431 Return To: ADAMS THEISEN MAY MILLER & YEHL 103 WEST SENECA ST DATE: 08/02/2004 ITHACA, NY 14850 Time: 12:21 PM Document Type: EASEMENT/LEASE Parties To Transaction: ITHACA/AUBLE Deed Information Consideration: $0.00 Transfer Tax: $0.00 RETT No: Mortggaue Information Mortgage Amount: Basic Mtge. Tax: 00006 Special Mtge. Tax: Additional Mtge. Tax: State of New York Tompkins County Clerk Mortgage Serial No.: This sheet constitutes the Clerk endorsement required by Section 316-A(5) & Section 319 of the Real Property Law of the State of New York. DO NOT DETACH Tompkins County Clerk 111111111111111111111111111111111111111111111111111111111111 e 0 DRAINAGE EASEMENTS, CONSTRUCTION, OPERATION AND MAINTENANCE AGREEMENT THIS AGREEMENT is made this z-sr" day of June, 2004, by an between the TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New York 14850 (the "Town") and DAVID C. AUBLE, 111 West King Road, Ithaca, NY 14850 ("Auble" or "Developer"). WITNESSETH: WHEREAS, on January 20, 2004, Developer received preliminary and final site plan approval for the construction of the Holly Creek Subdivision by resolution number 2004-001 from the Town's Planning Board on Town of Ithaca tax parcels number 37-1-17.1 and 37-1-18 (the "Holly Creek Approval"); and WHEREAS, such Holly Creek Subdivision is shown on a final plat map entitled "Holly Creek Subdivision Site Plan" dated December 31, 2003, intended to be filed in the Tompkins County Clerk's Office concurrently herewith; and WHEREAS, the Holly Creek Approval was granted conditional upon certain matters including approval of certain drainage easements and facilities; NOW, THEREFORE, in consideration of the granting of the Holly Creek Approval and in furtherance of the public purposes of providing adequate storm water retention and maintenance, the parties agree as follows: 1. Construction of Drainage Facilities. Developer agrees to construct all of the storm drainage facilities shown on the respective plans submitted for the Holly Creek Approval, copies of which are on file in the Town of Ithaca offices. Without limiting the foregoing, Developer agrees to construct the following: (a) The drainage swales running along the north side and east side of Lot 7 as shown on the above referenced site plan; (b) The drainage swale and channel running along the north and east side of Lot 6 as shown on said site plan; (c) The drainage swale running along the east side of Lot 5 as shown on that said subdivision map; (d) The drainage channels and related culverts running along and in some instances under Holly Creek Lane as shown on the Grading and Drainage Plan dated December 31, 2003 submitted in connection with the obtaining of the Holly Creek Approval; (e) The drainage swales and detention ponds on the portions of Lots 6 and 7 lying to the west of Holly Creek Lane, again all as shown on said Grading and Drainage Plan; and Page 1 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Rgr. June 4, 2004 (12:17PM) (f) All of the outlet structures from the detention ponds and other drainage facilities as shown on said Grading and Drainage Plan dated December 31, 2003. All of such facilities (referred to in this Agreement individually sometimes as a "Drainage Facility" and collectively as the "Drainage Facilities") shall be constructed in accordance with good engineering practice and to the reasonable satisfaction of the Town's Director of Engineering. 2. Maintenance of Facilities. Developer agrees for himself, his respective legal representatives, heirs, and assigns, and any other persons who obtain title to any portion of the properties on which any of the Drainage Facilities are located to operate and maintain the Drainage Facilities to insure that the Drainage Facilities continue to function for their intended purpose and as designed. In furtherance of such obligation, the Developer shall submit to the Town's Director of Engineering plans for the regular and recurring maintenance of the Drainage Facilities which plans shall be subject to the approval of the Director of Engineering, which approval will not be unreasonably withheld. The plans shall require maintenance to be undertaken on a regular basis as frequently as necessary to assure that the Drainage Facilities operate appropriately. Without limiting the contents that may be reasonably required in such plans, and in the absence of such an approved plan, such maintenance shall, at a minimum, include: (a) Regular inspection and cleaning of all facilities, particularly detention ponds, storm pipes, catch basins, and stormwalls; (b) Establishment and maintenance of good vegetative cover and regular mowing (at least twice annually) of vegetation in all vegetated drainage channels; (c) Keeping all structures and channels free of debris; (d) Annual exercising and inspection of any drain valves; (e) Inspection of concrete and repair of any damaged surface; (f) Maintenance of all concrete structures; (g) Maintenance of all required and designed elevations of detention basins including upper and lower elevations; (h) Woody vegetation in any detention basin, spillway, drainage swale or channel or other similar facilities, if not controlled by periodic mowing, shall be controlled by other acceptable means including brush removal; (i) Vehicles to be excluded from all unpaved areas except for maintenance; (j) Facilities to be inspected annually for damage caused by animals (e.g. muskrats, moles or other rodents). Any damage shall be repaired by filling with impervious soil and animals removed from the area by trapping or other legal means; The Developer shall perform all of the foregoing maintenance and any other maintenance reasonably necessary to keep all Drainage Facilities functioning as a storm water management facilities, in a good and workmanlike manner, at his own expense. Should the property be subdivided and lots be owned by different entities or individuals, the Page 2 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) SCHEDULE A ALL THAT TRACT OR PARCEL OF LAND, situate in the Town of Ithaca, County of Tompkins, State of New York, and being part of Military Lots 84 and 85 in said Town, more particularly described as follows: Lot 6 Drainage Easement BEGINNING at a point in the easterly street line of the proposed road known as "Holly Creek Lane" as shown on the survey map titled "Holly Creek Subdivision Site Plan" dated March 14, 2003, revised on March 18, 2003, April 2, 2003, May 14, 2003 and December 17, 2003 by Reagan Land Surveying, which point is S 05° 47' 09" W a distance of 42.24 feet from an iron pin in the easterly line of Holly Creek Lane at the southeasterly line of Lot 7 as shown on said map; running thence S 82° 07'05" E a distance of 98.27 feet to a point; running thence S 79° 54' 04" E a distance of 27.66 feet to a point; running thence S 65' 02' 15" E a distance of 22.27 feet to a point; running thence S 60° 42' 08" E a distance of 58.09 feet to a point; running thence S 46° 50' 47" E a distance of 17.16 feet to a point; running thence S 11 ° 17' 52" E a distance of 23.94 feet to a point; running thence S 05° 02' 39" W a distance of 58.83 feet to a point; running thence S 14° 39' 56" W a distance of 255.35 feet to a point; running thence N 84' 32' 04" W a distance of 15.20 feet to a point; running thence N 14' 39'56" E a distance of256.52 feet to a point; running thence N 05° 02' 39" E a distance of 55.42 feet to a point; running thence N 11 ° 17' 52" W a distance of 16.98 feet to a point; running thence N 46° 50' 47" W a distance of 10.53 feet to a point; running thence N 60° 42' 08" W a distance of 55.70 feet to a point; running thence N 65' 02' 15" W a distance of 19.74 feet to a point; running thence N 79° 54' 04" W a distance of 25.42 feet to a point; running thence N 82' 07' 05" W a distance of 97.43 feet to a point; running thence N 05° 47' 09" E a distance of 15.01 feet to the point or place of beginning. Also ALL THAT TRACT OR PARCEL OF LAND described as follows: BEGINNING at an iron pin in the westerly line of the cul-de-sac at the southerly end of Holly Creek Lane, which iron pin is at the southeast corner of Lot 4 as shown on the above referenced Holly Creek Subdivision Site Plan; running thence S 76° 53' 42" W along the south line of Lot 4 a distance of 97.09 feet to a pin in the corner of Lot 4; thence N 4° 34' 59" W along a west line of Lot 4 a distance of 114.71 feet to a pin; thence N 36° 36' 0" W along a west line of Lot 4 a distance of 58.25 to a pin; thence N 5 ° 479" E along a west line of Lot 4 a distance of 77.52 feet to an iron pin, which iron pin is the northwest corner of Lot 4; thence N 80 ° 51' 42" W along a south line of Lot 3 as shown on said subdivision map a distance of 30.05 feet to a pin in the southwest corner of Lot 3; thence S 5 ° 47' 9" W passing through a pin at 176.13 feet a total distance of 291.80 feet to a pin located in the northwest corner of Lot 5 as shown on said subdivision map; thence N 81 ° 57' 38" E along a north line of Lot 5 a distance of 70.91 feet; thence N 25 ° 36' 8" E a distance of 20.20 feet to an iron pin; thence N 76° 53' 42" E a distance of 118.24 feet to a pin in the westerly line of Holly Creek Lane cul-de-sac; thence northerly on a very slight curve to the right with a radius of 75 ° along the westerly line of the Holly Creek Lane cul-de-sac an arc distance of 15.06 feet to the point or place of beginning. Page 6 of 8 JCB Ithaca General -Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) Lot 7 Drainage Easement Commencing at a point located at the intersection of the westerly boundary of N.Y. S. Route 96 and the south boundary of West King Road; running thence N 57144' 14" W a distance of 174.00 feet to an iron pin at the northeasterly corner of the lands of Auble; running thence S 48° 45' 46"W a distance of 125.25 feet to an iron pin; running thence N 41° 14' 14"W a distance of 200.00 feet to an iron pipe, marking the point or place of BEGINNING; running thence S 41° 14' 14" E a distance of 143.02 feet to a point; running thence S 15' 45' 5 1 " E a distance of 25.25 feet to a point; running thence S 12° 41' 37" W a distance of 28.10 feet to a point; running thence S 28° 39' 09" W a distance of 31.49 feet to a point; running thence S 04' 08' 25" W a distance of 22.22 feet to a point; running thence S 06° 06' 26" W a distance of 239.06 feet to a point; running thence N 83' 53' 34" W a distance of 15.00 feet to a point; running thence N 06° 06' 26" E a distance of 238.81 feet to a point; running thence N 04° 08' 25" E a distance of 25.22 feet to a point; running thence N 28° 39' 09" E a distance of 32.64 feet to a point; running thence N 12° 41' 37" E a distance of22.19 feet to a point; running thence N 15' 45' 51" W a distance of 18.05 feet to a point; running thence N 41° 14' 14" W a distance of 139.63 feet to a point; running thence N 48° 45' 47" E a distance of 15.00 feet to the point or place of beginning. Also ALL THAT TRACT OR PARCEL OF LAND situate and described as follows: BEGINNING at a point in the wester line of Holly Creek Lane at the northeast corner of Lot 3 as shown on the above referenced subdivision map entitled "Holly Creek Subdivision Site Plan"; thence S 84° 8' 15" W a distance of 151.83 feet to a point; thence S 33° 32' 56" W a distance of 25.13 feet to a point; thence N 89° 58' 35" W a distance of 63.43 feet to a pin, which pin is the northwest corner of Lot 3 (all of said last three courses running along the north side of Lot 3); thence N 5 ° 47' 9" E a distance of 137.81 feet to a pin; thence N 21 ° 10' 18" E a distance of 251.63 feet to a post; thence S 47' 33' 30" E a distance of 32.19 feet to a pin; thence S 21 ° 10' 18" W a distance of 159.62 feet to a pin; thence S 31 ° 8' 37" E a distance of 60.82 feet to a point; thence S 4° 51' 12" W a distance of 111.95 feet to a pin; thence N 84° 8' 15" E a distance of 137.75 feet to a pin in the westerly line of Holly Creek Lane, said last four courses running along the westerly and southerly side of Lot 2 as shown on said map; thence S 5 ° 47' 9" W along the westerly line of Holly Creek Lane a distance of 15.32 feet to the point or place of beginning. Lot 5 Drainage Easement BEGINNING at a point marked by a set rebar with cap in the southerly boundary of the cul- de-sac in the proposed road known as "Holly Creek Lane", said point also being the northeast corner of Lot 5 as shown on the survey map titled "Holly Creek Subdivision Site Plan" dated March 14, 2003, revised on March 18, 2003, April 2, 2003, May 14, 2003 and December 17, 2003 by Reagan Land Surveying; running thence along the easterly boundary of Lot 5 S 05° 47' 09" W a distance of 201.80 feet to a set rebar with cap at the southeast corner of Lot 5; running thence N 75' 00' 00" W along the southerly boundary of Lot 5 a distance of 15.20 feet to a point; running thence N 05° 47' 09" E a distance of 208.11 feet to a point in the southerly boundary of the cul-de-sac of the proposed road known as "Holly Creek Lane"; running thence on a curve to the right along the boundary of said cul-de-sac with an arc distance of 17.40 feet and a radius of 75.00 feet to a point found along a chord Page 7 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) bearing and distance of S 53° 59' 25" E 17.36 feet to the point or place of beginning. Additional Easement Areas ALL THAT TRACT OR PARCEL OF LAND being more particularly described as follows: Commencing at the southeast corner of Lot 3 as shown on the above referenced subdivision site plan; thence N 80 ° 51' 42" W a distance of 20 feet; thence S 5 ° 47' 9" W a distance of 40 feet; thence S 80° 51' 42" E a distance of 20 feet to the west line of Holly Creek Lane; thence N 5' 47' 9" E along the west line of Holly Creek Lane a distance of 40 feet to the point or place of beginning. _Being a portion of Lot 4 as shown on said subdivision map reserved for the purposes of maintaining the culvert running under Holly Creek Lane through which Holly Creek passes. Also ALL THAT TRACT OR PARCEL OF LAND situate and described as follows: Commencing at an iron pin in the east line of Holly Creek Lane which pin is at the southwest corner of Lot 7 as shown on said subdivision map; thence S 67 ° 20' 0" E along a south line of Lot 7 a distance of 50 feet to a point; thence N 5 ° 47' 9" E on a line parallel with the east line of Holly Creek Lane a distance of 40 feet; thence N 67 ° 20' 0" W parallel to the first above described course a distance of 50 feet to the east line of Holly Creek Lane; thence S 5 ° 47' 9" W along the east line of Holly Creek Lane a distance of 40 feet to the place or point of beginning. Being a portion of Lot 7 as shown on said subdivision map being reserved for the purposes of maintaining the approaches to the culvert under Holly Creek Lane and the culvert itself and related drainage structures. Substantially all of the premises described above are shown on a survey map entitled "Holly Creek Subdivision Site Plan" dated December 31, 2003 by Reagan Land Surveying, a copy of which is intended to be filed concurrently with this Agreement. Being a portion of the premises conveyed to David C. Auble by deed of Buttermilk Trail, LP dated April 2, 1997 and recorded April 24, 1997 in the Tompkins County Clerk's Office in Liber 793 of Deeds at Page 174. Page 8 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) owner of the lot on which a Drainage Facility is located shall have the responsibility set forth in this paragraph for the maintenance. To the extent that any Drainage Facility is located on two or more lots owned by different individuals or entities, the responsibility for the maintenance shall be divided between the lot owners in proportion to the gross square foot area of the Drainage Facility located on each lot. 3. License and Easement to Town. Developer hereby grants to the Town an easement and license to enter upon the Developer's property for the purposes of observing and inspecting the Drainage Facilities at any time and from time to time as may be deemed appropriate, necessary or desirable by the Town, the Town's Director of Engineering, or the 'own Director of Building and Zoning or similar officers of the Town. If as a result of such inspections maintenance deficiencies are found the Director of Engineering will notify the owner of the property upon which the deficiency is found in writing, and the owner shall cause needed repairs to be made within 30 days of such notice, or within such earlier period designated by the Director of Engineering if, in such Engineer's reasonable judgment, the deficiency is of a nature that threatens significant damage to the affected facility or downstream property owners if not earlier repaired. If the owner fails to complete the repairs to the satisfaction of the Director of Engineering within the 30-day or lesser applicable period, the Town reserves the right (but does not have the obligation) to have the repairs made and will charge the owner for the cost of such repairs. The Developer or subsequent owner agrees to pay for such repairs upon their respective properties within 10 days after demand for same. Notwithstanding the foregoing, if an emergency exists requiring immediate action, the Developer hereby authorizes the Town, its officers, agents, contractors and employees, to enter upon the property and effect emergency repairs to the any portion of the Drainage Facilities in the event of a threat to the safety of the Drainage Facilities or properties adjacent to or downstream of any portion of the Drainage Facilities, the cost of such repairs to be reimbursed to the Town within 10 days of demand for same. 4. Contest of Bills. In the event the Town makes repairs and issues a demand for reimbursement, and the owner of the property on which the repairs were made (hereafter the "Responsible Owner") disputes either the need for the repairs or the cost of the repairs, the Responsible Owner, in lieu of paying the amount demanded shall, within 10 days of receipt of the demand, deliver to the Town Clerk at the Town offices a Notice of Contest stating that the need for the repairs, or cost, or both, is in dispute and concisely stating the basis for the dispute. Failure to serve such a notice shall be deemed a waiver of any claim that the bill is not justified. If the Notice of Contest is filed, the Town shall, within thirty days of the filing, arrange for a hearing before the Town Board which, based upon any relevant materials presented by the Director of Engineering and the Responsible Owner, shall within 10 days of the hearing issue a resolution determining the dispute. If either the Director of Engineering or the Responsible Owner disagree with the resolution, either may bring a proceeding pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York, provided such proceeding is commenced within 30 days of the filing with the Town Clerk of the decision of the Town Board. Failure to institute such a proceeding shall be deemed an agreement with the decision of the Board. 5. Addition to Taxes. In the event the Town makes repairs and the Responsible Owner fails to reimburse the Town for the cost of said repairs within 10 days after the demand Page 3 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) for same, or, if contested by the proceedings set forth above, fails to so reimburse within 30 days of the final decision on the contest determining the amount due to the Town, Developer and the Responsible Owner hereby agree and authorize the Town to add such unpaid repair expenses to the tax bill for the tax parcel on which the repairs were made, to be payable, together with interest at the rate of 9% per annum from the date of making of said repairs, as part of the tax bill issued in January of each year and to be treated as an unpaid tax and collected as an unpaid tax if not paid with the Town and County tax bills when issued. The Town may, at its option, instead of adding the amounts to the tax bills, bring an action against the Responsible Owner for payment. In any action or proceeding brought hereunder, the prevailing party shall be entitled to its reasonable costs in prosecuting or defending any action, including reasonable attorneys fees. The prevailing party shall be determined by the court determining the matter. Prevailing party shall mean a party which is awarded substantially all, or all, of the amounts or relief demanded by the party. 6. License and Easement Area. Without limiting the description of the areas in which Drainage Facilities are shown on the above referenced maps and plans, the Town easement and license to repair includes the properties described on Schedule "A" to this Agreement. 7. Representation as to Authoritv. Each of the persons executing this Agreement on behalf of the parties represents that he or she has full authority to execute the same on behalf of his or her party, and that by his or her execution, the party for which he or she is executing this Agreement is fully bound by its terms. 8. Covenant running with the Land. This easements, construction, operation and maintenance agreement is and shall be binding upon the parties hereto, their respective distributees, heirs, legal representatives, successors and assigns and shall run with the land. IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above written. TOWN OF ITHACA Catherine Valentino, Supervisor Page 4 of 8 JCB Ithaca General - Holly Creek - Drainage -Construction Agr. June 4, 2004 (12:17PM) STATE OF NEW YORK ss.: COUNTY OF TOMPKINS : On the 2-S l" day of June in the year 2004 before me, the undersigned, personally appeared Catherine Valentino personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Notary Public STATE OF NEW YORK Notary PubState L. of New York No. 01 SM4883200 ss.: Qualified In Tompkins County COUNTY OF TOMPKINS : Commission Expires January 20, 20 .Da On the .1 1 sT day of June in the year 2004 before me, the undersigned, personally appeared David C. Auble personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Not Public JESSICA L tt, CM *QviPublk State ofNew� ;Qd In M15034s C Page 5 of 8