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HomeMy WebLinkAbout499655-001Aurora R. Valenti TOMPKINS COUNTY CLERK 320 North Tioga Street Ithaca, NY 14850 (607)274-5431 Fax: (607) 274-5445 No. of Pages: 4 Receipt No. 499655 DATE: 11 /13/2006 Time: 02:45 PM Document Type: EASEMENT/LEASE Instrument Number *499655-001 * Delivered By: ITHACA, TOWN OF Return To: ITHACA, TOWN OF Parties To Transaction: 1093 GROUP T/ITHACA Deed Information Consideration: $0.00 Mortgage Information Mortgage Amount Transfer Tax: $0.00 Basic Mtge. Tax: RETT No: 00946 Special Mtge. Tax County Transfer Tax: $0.00 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 1111111111111111111111111111111111111111111111111111111111 ..µ 1093 Group, LLC Stormwater Maintenance Agreement — 9-12-06 OPERATION, MAINTENANCE, AND REPORTING AGREEMENT C�G N'0V 13 P11 2, 46 THIS AGREEMENT is made this 12t" day of September, 2006, by and between the TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New York (the "Town"), and 1093 GROUP, LLC, a New York limited liability company with an office at 295 Main Street, Suite 210, Buffalo, New York 14203. WITNESSETH: WHEREAS, 1093 Group, LLC received final site plan/subdivision approval for the Rite Aid Pharmacy from the Town's Planning Board by resolution number 2005-121 dated December 8, 2005 on tax parcels 62-1-2.2, 62-1-1 and 62-1-3.2 at 930-946 Mitchell Street and 322-350 Pine Tree Road in the Town of Ithaca, Tompkins County, New York; and WHEREAS, such Approvals were granted conditional upon the maintenance of the approved stormwater facilities, submission of an annual stormwater inspection report, and an agreement with the Town regarding the same; NOW, THEREFORE, in consideration of the granting of the Approvals 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. 1093 Group, LLC agrees to construct all of the storm drainage facilities shown on the respective plans submitted for the Approval, copies of which are on file in Town of Ithaca offices. Without limiting the foregoing, 1093 Group, LLC agrees to construct (a) The drainage pond located substantially as shown on the Preliminary Site Plan Submission, Rite Aid Pharmacy SP-1 and GU-1 prepared by BL Companies with an issue date of August 29, 2005, revised November 7, 2005; and (b) All associated pipes, mains, drains, outlet and inlet structures, manholes, and all other drainage related facilities and structures, whether above or below grade. All of such facilities (referred to in this Agreement 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. 1093 Group, LLC agrees for itself, its legal representatives, successors and assigns and any other persons or entities 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, and without limiting the obligations set forth in the preceding sentence, 1093 Group, LLC agrees to follow the Page 1 of 4 1093 Group, LLC Stormwater Maintenance Agreement — 9-12-06 maintenance plan for regular and recurring maintenance of the Drainage Facilities as submitted for the Approval and set forth on The Maintenance Plan and Inspection Procedures set out on Plan EC-1 with an issue date of August 29, 2005 as revised on November 7, 2005 prepared by BL Companies submitted with the application materials for the Approval. In addition, 1093 Group, LLC shall perform such other maintenance as may be reasonably required by the Town's Director of Engineering in order to assure the continued operation of the Drainage Facilities as intended and designed. 1093 Group, LLC shall perform all of the foregoing maintenance and any other maintenance reasonably necessary to keep all Drainage Facilities functioning, in a good and workmanlike manner, at their own expense. 3. License to Town. 1093 Group, LLC hereby grants to the Town a license to enter upon its property or any portion thereof 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 Town 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 his 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. 1093 Group, LLC or the then owner of the property agrees to pay for such repairs within 10 days after demand for same. Notwithstanding the foregoing, if an emergency exists requiring immediate action, 1093 Group, LLC 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, file a copy of such resolution with the Town Clerk, and arrange for delivery of a copy of the resolution to the Responsible Owner, within five days after such filing, at the address for such owner shown on the latest real estate tax records available to the Town, or, if 1093 Group, LLC is the then Responsible Owner, at the address for 1093 Group, Page 2 of 4 1093 Croup, LLC Stormwater Maintenance Agreement — 9-12-06 LLC set forth at the outset of this agreement. If either the Director of Engineering or the Responsible Owner disagrees 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 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, 1093 Group, LLC hereby agrees and authorizes 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 unpaid expense may be added to the bill issued in the January next following the final determination of the validity of the expenditure, or the bill issued the next year after the January following such final determination (e.g. if the final determination of the validity of the assessment of the bill is made October 1, 2006, the amount may be added, with interest, to the tax bill issued in January 2007 or the tax bill issued in January 2008). This right of assessing the unpaid bill as a tax shall be effective even if the property of the Responsible Owner would otherwise be exempt from real estate taxation. 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 parry shall mean a party which is awarded substantially all, or all, of the amounts or relief demanded by the party. 6. Annual Inspection Report. 1093 Group, LLC shall submit an annual stormwater inspection report to the Town's Director of Engineering on or before the first day of October of each year, with the first report being submitted the first October following the issuance of the Building Permit. Such reports shall, at a minimum, include the location of the property, owners contact information, summary of completed inspections and results of such inspections, and a summary of any maintenance activities or corrective actions undertaken. Annual reports shall be signed by the owner or other legally responsible party, and shall attest to the accuracy of the information provided in the report. Failure to submit the annual reports, or submitting inaccurate reports, shall, without limiting the remedies otherwise available to the Town, constitute a condition of non-compliance. with the site plan approval and shall be deemed a violation of the Town's Zoning Ordinance and shall be subject to enforcement as such as outlined in Section 2808 of the Town of Ithaca Zoning Ordinance and Section 68 of the Town Law. 7. Representation as to Authority. 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 parry, and that by his or her execution, the party for which he or she is executing this Page 3 of 4 , 1093 Croup, LLC Stormwater Maintenance Agreement — 9-12-06 Agreement is fully bound by its terms. IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above written. TOWN OF ITHACA By: V — Catherine Valentino, Supervisor 1093 GROUP, LLC By: � Carl P. Paladin, Manager STATE OF NEW YORK COUNTY OF TOMPKINS : ss.: OC=46be✓ On the day ofSopww-b r in the year 2006 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. STATE OF NEW YORK COUNTY OF ERIE : ss.: cft� W" Notary Public CARRIE WHITMORE Notary Public, State of New York No. 01 W H6052877 Tioga County 4 Commission Expires December 26, "" On the /5' aaY of September in the year 2006 before me, the undersigned, personally appeared Carl P. Paladino 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. Notary Public KATFM M A. UNHARDT "'OwdWiMed in My 0anwimmm Ev New M �25• 0 Page 4 of 4