HomeMy WebLinkAbout524888-003Aurora R. Valenti
TOMPKINS COUNTY CLERK
320 North Tioga Street
Ithaca, NY 14850
(607)274-5431
Fax: (607) 274-5445
No. of Pages: 11
Receipt No. 524888
DATE: 04/23/2008
Time: 11:05 AM
Document Type: MISC RECORDS
Parties To Transaction:
Deed Information
Consideration:
Transfer Tax:
Instrument Number
*524888-003*
Delivered By: NAMGYAL MONASTERY
Return To:
TOWN OF ITHACA
Mortgage Information
Mortgage Amount
Basic Mtge. Tax:
RETT No: 00000 Special Mtge. Tax
County Transfer 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
Namgya! Monastery Stormwater Maintenance Agreement—04-02-08
OPERATION, MAINTENANCE, AND REPORTING AGREEMENT
THIS AGREEMENT is effective this .5 day of April, 2008, by and between the TOWN
OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New York
14850 (the "Town"), and NAMGYAL MONASTERY INSTITUTE OF BUDDHIST STUDIES,
201 Tibet Drive, Ithaca, New York 14850 (the "Owner").
WITNESSETH:
WHEREAS, the Owner received final site plan approval for the Namgyal Monastery
development (the "Approval") from the Town's Planning Board by resolution number 2006-034
dated March 21, 2006 at 201 Tibet Drive 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 agrees to construct 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 agrees to construct, at
its expense:
(a) The stormwater facility (wet pond), which shall be located substantially as shown
on drawings "Utility Extensions" (sheet C301), "Erosion & Sediment Control Plan" (sheet
C501), "Stormwater Management Facility" (sheet C502), "Details" (sheets C703 and C704)
(referred to in this Agreement as the "Drawings"); 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, which shall be 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 such Facilities shall be 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.
2. Inspection, Maintenance and Repair of Facilities. The Owner agrees for itself, its legal
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Namgyal Monastery Stormwater Maintenance Agreement—04-02-08
representatives, successors and assigns and any other persons or entities who obtain title to any
portion of the properties on which any of the Facilities are located, to operate, maintain and repair the
Facilities to insure that the 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 follow the maintenance plan for regular and recurring inspections and
maintenance of the Facilities which is part of the Approval and is set forth in the "Preliminary
Stormwater Management Study" prepared by T.G. Miller, P.C. 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 the 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 Facilities functioning in a good and workmanlike manner.
3. Town Inspections and Repair. The Owner shall grant to the Town the permanent
easement and right-of-way which is attached to this Agreement as Exhibit A. The Owner agrees the
Town may enter upon the property described in Exhibit A or any portion thereof for the purposes of
observing and inspecting the 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 the 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 (or within such other period as the Director of
Engineering may thereafter designate in writing if he determines such repairs are not capable of
being completed by the end of the original period because of causes beyond the control and without
the fault or negligence of the Owner), 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 any
portion of the Facilities in the event of a threat to the safety of the Facilities or properties adjacent to
or downstream of any portion of the Facilities, with the cost of such repairs 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. As long as the property is used as a
monastery and retreat center, the Town's access to and actions on the property will be undertaken, to
the extent that it is reasonable and possible, in a manner that respects the peace and quiet needed for
such uses. The parties acknowledge, however, that situations may arise where the Town's access
and actions may disturb the peace and quiet on the property, such as, for example, Town emergency
repairs to the Facilities.
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
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Namgyal Monastery Stormwater Maintenance Agreement—04-02-08
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 the 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
Page 3 of 6
Namgyal Monastery Stormwater Maintenance Agreement—04-02-08
report. Failure to submit the annual reports, or the submission of inaccurate reports, shall constitute
a condition of non-compliance with the site plan 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 the Facilities except in
accordance with written approval of the Town and pursuant to any applicable requirements for
modification of site plan 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 deeds for tax parcel 41-2-10. 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 the
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 the Facilities are
located.
(b) Failure to comply with any of the requirements of this Agreement shall, without
limiting the remedies otherwise available to the Town, constitute a condition of non-
compliance with the site plan 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 solely caused by an intentional wrongful act of the Town. 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
damages, losses and claims solely caused by an intentional wrongful act of the Town. Such
Page 4 of 6
Namgya! Monastery Stormwater Maintenance Agreement—04-02-08
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.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and
year first above written.
TOWN OF ITHACA
,--`d By: J_
Date H ngman, ervisor
NAMGYAL MONASTERY INSTITUTE OF
BUDDHIST STUDIES
30 cv By: &W—� -
Date Namgyal Monastery Institute of Odhist Studies
Page 5 of 6
Namgyal Monastery Stormwater Maintenance Agreement—04-02-08
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
I Al
On the :3c` day of ldr� in the year 200,06efore me, the undersigned, personally
appeared personally known to me or proved to me on the basis of
satisfactory evidence to be the ind vidual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
ye,�-
Notary Public
Ef_FNA F" 7r rNr) FLASH
Notary T'L�. ', r! New York
Q'Jf�� -
Commiss"on ,11 ,;---Is County
Expires November 9, 2p�
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On the day of in the year 2003 before me, the undersigned, personally
appeared EnQ mct tom_ personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.
a
Notary Public
Dani L. Holford
Notary Public, State Of New York
No.01H06052879
Seneca County
my Commission Expires Dec. 26, ' 10
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