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HomeMy WebLinkAbout519339-014Aurora R. Valenti TOMPKINS COUNTY CLERK 320 North Tioga Street Ithaca, NY 14850 (607) 274-5431 Fax: (607) 274-5445 No. of Pages: 12 Receipt No. 519339 DATE: 12/20/2007 Time: 01:36 PM Document Type: EASEMENT/LEASE Parties To Transaction: T/ITHACA - CU Deed Information Consideration: $0.00 Instrument Number *519339-014* Delivered By: CORNELL COUNSEL Return To: CORNELL COUNSEL Mortgage Information Mortgage Amount Transfer Tax: $0.00 Basic Mtge. Tax: RETT No: 01529 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 i iniii nnuim Tompkins Ciiiii Clerk nnnini iiii im OPERATION, MAINTENANCE, AND REPORTING AGREEMENT ,W^ THIS AGREEMENT is effective this 0 day of December, 2007, by and between the TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New York 14850 (the "Town"), and CORNELL UNIVERSITY, with an office at c/o Real Estate Department, Box DH - Real Estate, Ithaca, New York 14853 (the "Owner"). WITNESSETH: WHEREAS, the Owner, or the prior owner, received final site plan approval for the Rite Aid Pharmacy/Redevelopment of Judd Falls Plaza (the "Approval") from the Town's Planning Board by resolution number 2005-121 dated December 6, 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 Approval was granted conditional upon the construction and 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 Approval and in furtherance of the public purposes of providing adequate stormwater retention and maintenance, the parties agree as follows: 1. Construction of Facilities. The Owner, or the prior owner, has constructed all of the stormwater management facilities, erosion control facilities and storm drainage facilities (collectively referred to as the "Facilities") shown on the final plans which are part of the Approval, copies of which are on file in the Town of Ithaca offices. Without limiting the foregoing, the Owner, or the prior owner, agreed to construct, at its expense: (a) The drainage pond located substantially as shown on 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 (referred to in this Agreement as the "Drawings"), copies of which are on file in the Town of Ithaca offices; and (b) All other Facilities, including pipes, mains, drains, outlet and inlet structures, manholes, and all other drainage -related facilities and structures, whether above or below grade, located substantially as shown on the Drawings; and (c) Such future facilities as may be required to be constructed by applicable laws, rules, or regulations. All of the Facilities in subparagraphs (a) and (b) above have been constructed as shown on the Drawings, in accordance with good engineering practice and applicable New York State standards and specifications, and to the reasonable satisfaction of the Town's Director of Engineering. Owner agrees to construct, at its expense, such future facilities as may be required to be constructed by applicable laws, rules, or regulations. 2. Ins_pection, Maintenance and Repair of Facilities. The Owner agrees for itself, its legal representatives, successors and assigns and any other persons or entities who obtain title to any portion of Owner's property described in Attachment 1 on a Right -of -Way and Easement attached as Exhibit A for reference on which any of the Facilities are located, to operate, maintain and repair that portion of the Facilities situate on Owner's property described in Attachment 1 to said Exhibit A (hereafter referred to as "Owner's Facilities") to insure that Owner's 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, the Owner agrees to maintain Owner's Facilities as shown on The GRADING AND DRAINAGE PLAN, GD-1, dated 3/ 16/2006, prepared by the BL Companies, copies of which are on file in the Town of Ithaca offices. Maintenance activities for the Detention Pond shall include mowing as needed to maintain cover vegetation and keep the detention area free of brush and woody vegetation. The wetland plantings in the Micropool shall be maintained, and if sediment accumulation is removed, the plantings shall be reestablished. The Forebay shall be inspected in spring and fall, and sediment and debris shall be removed when the volume of the Forebay is reduced by twenty-five percent (25%). The Catch Basins shall be inspected in spring and fall, and all sediment and debris shall be removed at those times. Frames and grates shall be inspected and repaired as needed. Drainage pipes shall be maintained free of sediment and shall be inspected visually during the catch basin inspections. Prior to the Owner's inspections of the stormwater system, the Owner shall notify the Town Engineer about the time and date of the inspection by calling 607-273-1747 or such other telephone number as the Town may hereafter designate in writing to Owner. An inspection report shall be prepared during each inspection listing each element of the stormwater management system, condition of each element and any remedial or repair work completed. This report shall be provided to the Town Engineer within thirty (30) days of each inspection. In addition, the Owner shall perform such other inspections, maintenance and repair as may be reasonably required by the Town's Director of Engineering in order to assure the continued operation of Owner's Facilities as intended and designed. The Owner, at its own expense, shall perform all of the foregoing inspections, maintenance and repair and any other inspections, maintenance and repair reasonably necessary to keep all of Owner's Facilities functioning in a good and workmanlike manner. 3. Town Inspections and Repair. The Owner shall grant to the Town the permanent Right -of -Way and Easement, which is attached to this Agreement as Exhibit A. The Owner agrees the Town may enter upon the property described in Attachment 1 to Exhibit A or any portion thereof for the purposes of observing and inspecting Owner's 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 other officers or employees of the Town, and to make repairs to Owner's Facilities as set forth below. If maintenance deficiencies are found as a result of such inspections, the Director of Engineering will notify the Owner in writing, and the Owner shall cause needed repairs to be made within the number of days set forth in such notice. If the Owner fails to complete the repairs to the satisfaction of the Director of Engineering within the required 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 Owner agrees to pay for such repairs within 10 days after demand for same. Notwithstanding the foregoing, if an emergency exists requiring immediate action, the Owner hereby authorizes the Town, its officers, agents, contractors and employees, to enter upon the property and effect emergency repairs to, and/or alter, remove, replace, or change the size of, any portion of Owner's Facilities in the event of a threat to the safety of said Facilities or properties adjacent to or downstream of any portion of said Facilities, with the cost of such activities to be reimbursed by the Owner to the Town within 10 days of demand for same. When any portion of any Facility is located off -site or on the property of a third party, the Owner, at its sole cost and expense, shall obtain easements and rights -of -way thereto acceptable to the Town. 4. Contest of Bills. In the event the Town makes repairs and issues a demand for reimbursement, and the Owner disputes either the need for the repairs or the cost of the repairs, the 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 of Contest shall be deemed a waiver of any claim or defense that the amount demanded is not justified. If the Notice of Contest is timely filed, the Town shall, within forty-five 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 Owner, shall issue a resolution determining the dispute within 10 days after the hearing. Such resolution shall be filed with the Town Clerk, who shall arrange for delivery of a copy of the resolution to the Owner, within five days after such filing, at the address for such Owner set forth at the outset of this Agreement or at such other address as the Owner may designate in writing to the Town Clerk and Director of Engineering. If the Owner disagrees with the resolution, it 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. The Owner agrees to the shortened statute of limitations of 30 days within which it must assert its claims in any Article 78 proceeding. Failure to timely 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 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 filing of the final decision on the contest determining the amount due to the Town, then such unpaid costs, expenses and interest at the per annum rate of 9% incurred from the date of repair shall constitute a lien upon the land on which Owner's Facilities are located. The Town may bring a legal action or proceeding to collect such costs, expenses, interest, and recoverable attorney's fees, or to foreclose such lien. As an alternative to the maintenance of any such action, the Town may file a certificate with the Tompkins County Department of Assessment stating the costs and expenses incurred and interest accruing as aforesaid, together with a statement identifying the property and Owner so that the Tompkins County Department of Assessment shall in the preparation of the next assessment roll assess such unpaid costs, expenses and interest upon such property. Such amount shall be included as a special ad valorem levy (administered as a move tax) against such property, shall constitute a lien, and shall be collected and enforced in the same manner, by the same proceedings, at the same time, and under the same penalties as are provided by law for collection and enforcement of real property taxes in the Town of Ithaca. The Owner agrees that the assessment of such costs, expenses and interest shall be effective even if the property would otherwise be exempt from real estate taxation. In any action or proceeding brought hereunder, the prevailing party shall be entitled to recovery from the other party of 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 all or substantially all of the relief demanded by such party. 6. Annual Inspection Report. The Owner 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, Owner's contact information, a 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 the submission of inaccurate reports, shall constitute a condition of non-compliance with the Approval and be subject to enforcement as outlined below. 7. Alterations and Discontinuation of Facilities. The Owner shall not authorize, undertake or permit alteration, abandonment, modification or discontinuation of Owner's Facilities except in accordance with written approval of the Town and pursuant to any applicable requirements for modification of site plans/subdivision approvals. 8. Additional Requirements. The Owner shall comply with all Town of Ithaca stormwater operation, maintenance or reporting local laws, ordinances and regulations as they now exist or are hereafter added or amended. 9. Recording. This Agreement shall be recorded in the office of the Tompkins County Clerk and when recorded shall be referenced to the deed for Owner's property described on Attachment I to Exhibit A attached hereto which was recorded on December Z0 , 2007, in the Tompkins County Clerk's Office as Instrument Number -S M 339 — 06 g . The costs of recording and referencing to affected deeds and parcels of land shall be the responsibility of the Owner. 10. Binding Effect and Enforcement. A. The Owner, 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 Owner's Facilities are located shall be bound by the terms of this Agreement. The Owner shall execute whatever documents are necessary to make this Agreement binding on any persons or entities who obtain title to any portion of the properties on which any of Owner's Facilities are located. B. Failure to comply with any of the requirements of this Agreement shall, 4 without limiting the remedies otherwise available to the Town, constitute a condition of non- compliance with the Approval, shall be deemed a violation of the Town's Zoning Ordinance, and shall be subject to enforcement as outlined in Section 270-239 of the Town of Ithaca Code and Section 268 of the Town Law. 11. 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 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. 12. Limitation upon Town Liability and Indemnity. The Town shall not be liable or responsible for any injury to persons or damage to property due to the Town's actions, or failures to act, under or pursuant to this Agreement, unless it is proven to a reasonable degree of certainty that such injury or damage was caused by a reckless or intentional wrongful act of the Town or, where the Owner is not in breach of this Agreement and no emergency situation exists, by the Town's negligence. The Owner agrees to indemnify and hold harmless the Town and its employees, agents, subcontractors and consultants for all damages, losses and claims that arise out of the Owner's and/or Town's actions or failures to act under or pursuant to this Agreement, except this indemnification shall not extend to the proportion of damages, losses and claims caused by a reckless or intentional wrongful act of the Town or, where Owner is not in breach of this Agreement and no emergency situation exists, by the Town's negligence. Such indemnity shall include the costs of defending any action, including reasonable attorney fees, expert fees, and other litigation costs. 13. Waivers. Where the Town Board finds that, due to the special circumstances of a particular case, a waiver of certain requirements in this Agreement is justified, a waiver may be granted. In all cases, no waiver shall be granted unless the Town Board finds and records in its minutes that: (1) granting the waiver would be in keeping with the intent and spirit of this Agreement, and is in the best interests of the community; (2) there is no adverse effect upon the character, appearance, or welfare of the neighborhood and any watercourses, watersheds, or surface waters; (3) there are special circumstances involved in the particular case; (4) denying the waiver would result in undue hardship, provided that such hardship has not been self-imposed; and (5) the waiver is the minimum necessary degree of variation from the requirements of this Agreement. 14. Severability. In the event that any portion of this Agreement is declared invalid by a court of competent jurisdiction, the validity of the remaining portions shall not be affected by such declaration of invalidity. 15. Termination of Prior Agreement. This Agreement shall supersede a certain prior Operation, Maintenance and Reporting Agreement made by 1093 Group, LLC (the predecessor in interest to the Owner) and the Town of Ithaca dated September 12, 2006 and recorded in the Tompkins County Clerk's Office on November 13, 2006 as Instrument Number 503206-401 (the "Prior Agreement"). Accordingly, the Owner and the Town hereby declare that Prior Agreement is hereby terminated of record and is of no further force and effect. 4 411 b , 5 - w R IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and year first above written. TOWN OF ITHACA By: Catherine Valentino, Supervisor CORNELL UNIVERSITY n By: SA21, 1, Step n T. Golding, ExecutIve Vice President For Finance and Administ ation STATE OF NEW YORK : COUNTY OF TOMPKINS : ss.: On the 1 16�" day of December in the year 2007 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. Au,o,*— Lk , R4" Notary Public SUSAN HAJDA BROCK STATE OF NEW YORK Notary Public, State of New York COUNTY OF TOMPKINS : ss.: No. 0 qualified in Toompkimpki ns County Commission Expires September 5, 20 clot On the (1 day of December in the year 2007 before me, the undersigned, personally appeared Stephen T. Golding 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. NANCY H. PAGl1ARO n Notary Public, State of New York ((/ No.2998287 Qualified in Tompkins County Nota Pub 1 Commission Expires November 30, 2°d. ry m SECTION 62 BLOCK 1 LOT 3.2 (portion) GITYOR TOWN Ithaca EXHIBIT A RIGHT-OF-WAY AND EASEMENT THIS INDENTURE is made effective as of the _ day of December, 2007, by and between CORNELL UNIVERSITY, an education corporation chartered by the State of New York, c/o Real Estate Department, Box DH-Real Estate, Ithaca, New York 14853 ("Grantor") and the TOWN OF ITHACA, an incorporated municipality of the State of New York, with offices at 215 North Tioga Street, Ithaca, New York 14850 (the "Town"). WITNESSETH: That the Grantor, inconsideration of One and 00/100 Dollar ($1.00) and other good and valuable consideration paid by the Town, the receipt and sufficiency of which are hereby acknowledged by the Grantor and the Town, does hereby grant and release unto the Town, its successors and assigns forever, a RIGHT-OF-WAY and EASEMENT to enter upon the property described in Attachment 1 hereto or any portion thereof to make observations of, inspect, maintain, alter, repair, remove, replace or change the size of drainage, stormwater and/or sediment control facilities, including ditches, ponds, and other and related appurtenances and devices (the "Facilities") pursuant to the provisions of that certain Operation, Maintenance and Reporting Agreement between Grantor and the Town dated as of December 20, 2007, and recorded in the Tompkins County Clerk's Office on December _, 2007, as Instrument Number , together with the rights of free ingress and egress in, over, upon and under the property described in Attachment 1, such property being the area of the permanent easements and rights -of -way, and including the right to trim and/or remove trees, shrubs and other obstructions impairing the Facilities or access to same on said property situate in the Town of Ithaca, County of Tompkins and State of New York. FURTHER WITNESSETH: That the Grantor covenants and agrees that no buildings or structures shall be constructed within the aforesaid right-of-way and permanent easement which will in any way interfere with complete access by the Town, its successors, assigns, employees and agents to make observations of, inspect, maintain, alter, repair, remove, replace or change the size of any drainage, stormwater and/or sediment control facilities, including ditches, ponds, and other and related appurtenances pursuant to the provisions of that certain Operation, Maintenance and Reporting Agreement between Grantor and the Town dated as of December 20, 2007, and recorded in the Tompkins County Clerk's Office on December 1 2007, as Instrument Number AND, Grantor further covenants and agrees: 1. Grantor, for itself and all of its successors and assigns, covenants and agrees that no trees or other plants will be planted or cultivated that may interfere with complete access by the Town to the said Facilities. 2. Grantor, for itself and all of its successors and assigns, covenants and agrees that it will not permit or conduct any mining, excavation, construction or blasting within the area of the Facilities. 3. Grantor, for itself and all of its successors and assigns, covenants and agrees that it will not engage in any conduct, directly or indirectly, that blocks, obstructs, or interferes with the ingress and egress rights of the Town, its successors, assigns, employees and agents. 4. Grantor, for itself and all of its successors and assigns, covenants and agrees that it will place the following provision in all conveyances of the property or portions thereof covered by this easement, or any rights therein: "Being the purpose of the said drainage easement and right -of way to convey rights to the Town of Ithaca for drainage, storm sewer, sediment control and stormwater management purposes, including the conveyance of rights to said Town to make observations of, inspect, maintain, alter, repair, remove, replace or change the size of drainage, stormwater and/or sediment control facilities, including ditches, ponds, and other and related appurtenances and devices, together with the rights of free ingress and egress in, over, upon and under the below -described permanent easement and right-of-way, and including the right to trim and/or remove trees, shrubs and other obstructions: all of which rights are (1) set forth in a permanent easement and right-of- way granted to the Town, the terms, obligations and conditions of which are expressly incorporated herein, and (2) assignable by the said Town to any public successor or assign, or to any public Drainage District now existing or hereafter to be formed." AND FURTHER, Grantor and the Town acknowledge that the easement and rights -of -way hereby granted are fully assignable by the Town to any public successor or assign, or to any public Drainage District now existing or hereafter to be formed, without prejudice or recourse. TO HAVE AND TO HOLD said right-of-way and easement unto the Town, its successors and assigns permitted under this Agreement forever. IN WITNESS WHEREOF, the Grantor has hereunto set its hand and seal the day and year first above written. IN PRESENCE OF CORNELL UNIVERSITY, GRANTOR Stephen T. Golding Executive Vice President for Finance and Administration STATE OF NEW YORK } COUNTY OF TOMPKINS ) ss: On the day of December, in the year 2007, before me, the undersigned, personally appeared Stephen T. Golding, 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. SECTION 62 BLOCK 1 LOT 3.2 (portion) CITY TOWN Ithaca Notary Public 10 ATTACHMENT 1 ALL THAT TRACT OR PARCEL OF LAND situate in the Town of Ithaca, County of Tompkins, State of New York, being bounded and described as follows: BEGINNING at a point located in the present centerline of Mitchell Street, said point being located northwesterly a distance of approximately 399.5 feet along said centerline from its intersection with the present centerline of Pine Tree Road; RUNNING THENCE North 48' 22' 44" West along said centerline for a distance of 246.10 feet to a point; RUNNING THENCE North 48' 21' 35" West and continuing along said centerline for a distance of 221.66 feet to a point which marks the southeasterly corner of lands reputedly of East Lawn Cemetery Association; RUNNING THENCE North 140 32' 22" East being along the east line of East Lawn Cemetery Association, passing through an iron pipe found at a distance of 25.58 feet and continuing 427.42 feet to an iron pipe found; RUNNING THENCE South 780 19' 02" East and continuing along a southerly line of East Lawn Cemetery Association for a distance of 164.00 feet to an iron pipe found; RUNNING THENCE South 100 02' 10" West being along a westerly line of East Lawn Cemetery Association for a distance of 33.53 feet to a point; RUNNING THENCE South 78' 24' 06" East and continuing along a southerly line of East Lawn Cemetery Association for a distance of 6.00 feet to an iron pin found, said iron pin marks a northwesterly corner of lands reputedly of Cornell University, as described by Instrument Number 510953-001; RUNNING THENCE South 13 ° 00' 04" West being along the westerly line of Cornell University for a distance of 140.65 feet to an iron pin found; RUNNING THENCE South 76' 39' 56" East being along the southerly line of lands of Cornell University for a distance of 186.74 feet to a point; RUNNING THENCE South 14' 32' 22" West for a distance of 139.73 feet to a point; RUNNING THENCE South 77' 51' 00" East for a distance of 50.02 feet to a point; RUNNING THENCE South 02' 38' 0 1 " West for a distance of 210.00 feet to a point; RUNNING THENCE North 88' 07' 56" East for a distance of 45.00 feet to a point; RUNNING THENCE South 40' 0 F 16" West passing through an iron pin found at a distance of 165.00 feet and continuing 27.73 feet to a point in the present centerline of Mitchell Street, the point and place of beginning. 12