HomeMy WebLinkAbout552505-003Aurora R. Valenti
TOMPKINS COUNTY CLERK
320 North Tioga Street
Ithaca, NY 14850
(607)274-5431
Fax- (607) 274-5445
No. of Pages: 10 Delivered By
(including this
cover page) TOWN OF ITHACA
Receipt No. 552505 Return To:
ITHACA TOWN OF
Date. 12/23/2009
Time. 10:56 AM
Document Type: easement
Parties
To Transaction: IC
Tow n/City:
Deed Information
Taxable Consideration: $0.00
State Transfer Tax $0.00
County Transfer Tax: $0.00
RETT No.- 02957
State of New York
Tompkins County Clerk
Instrument Number
*552505-003*
Mortgage Information
Taxable Mortgage Amount:
Basic Mortgage Tax:
Special Mortgage Tax:
Additional Mortgage Tax.
Local Mortgage Tax:
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.
jw'�1�4 xil
Tompkins County Clerk
Please do not remove this page.
RIGHT-OF-WAY AND EASEMENT
THIS INDENTURE is made this —day of 2009 by and between
ITHACA COLLEGE, an education corporation chartered by the State of New York,
with offices at 953 Danby Road, Ithaca, New York 14850 ("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, in consideration of One and 00/100 Dollar
($1.00) and other good and valuable consideration received from the Town, does
hereby grant and release unto the Town, its successors and assigns, a permanent
RIGHT-OF-WAY and EASEMENT to make observations of, inspect, maintain, lay,
construct, operate, alter, repair, remove, replace or change the size of certain
drainage, stormwater and/or sediment control facilities, including ditches, ponds,
swates, and other and related appurtenances and devices, together with the rights
of free ingress and egress in, over, upon and under the portions of the lands of
the campus of the Grantor situate within the Town of Ithaca, County of
Tompkins, and State of New York which now or hereafter contain, or shall
contain, such drainage, stormwater and/or sediment control facilities, including
ditches, ponds, swales, and other and related appurtenances and devices pursuant
to certain site plan approvals, subdivision approvals, special permits, or other
project approvals granted or to be granted by the Town's Planning Board or
other Town Boards or officers, (the "Facilities" as defined in the Operation,
Maintenance, and Reporting Agreement made and entered into by the Grantor and
the Town effective thel�f'i ay of L-cTcv;.C2009) and including the right to trim and/or
remove obstructing trees, shrubs and other obstructions, with the timing of such
access governed by an Operation, Maintenance, and Reporting Agreement made
and entered into by the Grantor and the Town effective thel�(ay of C L zz3��2009
and recorded concurrently herewith (the "OM&R Agreement"),
FURTHER WITNESSETH: That the Grantor covenants and agrees that no
buildings or structures shall be constructed which will in any way interfere with
reasonable access by the Town, its successors, assigns, employees and agents to
make observations of, inspect, maintain, lay, construct, operate, alter, repair,
remove, replace or change the size of any Facilities.
AND, Grantor further covenants and agrees:
I. Grantor, for itself and all of its successors and assigns, covenants and
agrees that no buildings or structures shall be constructed which will in any way
interfere with reasonable access, as set forth in the OM&R Agreement or in this
Easement and Right -of -Way, by the Town, its successors, assigns, employees and
10/7/2009
agents to make observations of, inspect, maintain, lay, construct, operate, alter,
repair, remove, replace or change the size of any Facilities.
2. 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 the said access and right-of-way to said Facilities.
3. 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 said easement and right-of-way without the written permission
of the Town, which permission shall not be unreasonably withheld, and Grantor
further 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 as set forth in the
OM&R Agreement or in this Easement and Right -of -Way.
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 that contain Facilities that are covered by this
Easement, or any rights therein:
"Being the purpose of the said access 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, lay, construct, operate, 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 reasonable
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 to
the Town, the terms, obligations and conditions of which are
expressly incorporated herein, and (2) assignable by the said Town to
any successor or assign, or to any Drainage District or other 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 subject to
Grantor's approval, which will not unreasonably be withheld, conditioned or
delayed.
1 o/7/2009 2
TO HAVE AND TO HOLD said right-of-way and easement unto the Town, its
successors and assigns for so long as any Facilities are legally required to be located
within the said right-of-way and easement. In the event that any particular Facility
is removed, abandoned, or discontinued pursuant to all applicable requirements
and no functioning Facility remains in its place, then upon the written consent of
the Town this right-of-way and easement shall cease and be extinguished as to the
Facility that was so removed, abandoned, or discontinued, and the Town shall,
upon request of the Grantor, sign the appropriate document in recordable form
confirming the same.
IN WITNESS WHEREOF, the Grantor has hereunto set its hand and seal the day
and year first above written.
IN PRESENCE OF
ITHACA C LEGE, GRANTOR
BY_RichardJ. Couture
TITLE Associate Vice President Facilities
STATE OF NEW YORK I
COUNTY OF TOMPKINS I ss:
On theWy of )C , in the year 200_, before me, the undersigned, personally
appeared <_ c ht rr-c , 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.
No-tarPublic
CRYSTAL L. YOUNG
Notary Public, State of New York
Qualified in Tompkins Co. 4839802
Commission Expires May 31, 20-L_
.4,
OPERATION, MAINTENANCE, AND REPORTING AGREEMENT
THIS AGREEMENT is effective this ! y f" day of cc 2009, by and between the
TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New
York 14850 (the "Town"), and Ithaca College, an education corporation chartered by the State of
New York, with offices at 953 Danby Road, Ithaca, New York 14850 (the "Owner").
WITNESSETH:
WHEREAS, the Owner has received final site plan/subdivision approvals for one or more
projects, and may receive similar approvals in the future (collectively, the "Approvals") from the
Town's Planning Board in the Town of Ithaca, Tompkins County, New York; and
WHEREAS, some of these Approvals have been, or will be, granted conditional upon the
construction and maintenance of the approved stormwater facilities, submission of an annual
stormwater inspection report, and this agreement with the Town regarding the same (collectively,
"Covered Approvals"); and
WHEREAS, ordinarily an owner would execute one Operation, Maintenance, and Reporting
Agreement and one Easement and Right of Way for each approved stormwater facility concurrently
with its approval; and
WHEREAS, the Owner is a large land owner that expects to be constructing multiple
stormwater facilities in the future; and
WHEREAS, a single agreement covering stormwater facilities on multiple locations within
the Owner's property within the Town would be easier for both parties to administer than multiple
individual agreements;
NOW, THEREFORE, in consideration of the granting of the Covered Approvals that have
been granted or may be granted in the future and in furtherance of the public purposes of providing
adequate stormwater retention and maintenance, the parties agree as follows:
1. Construction and Implementation of Facilities. The Owner agrees to construct all of the
stormwater management facilities, erosion control facilities and storm drainage facilities, and
implement all approved stormwater management practices (such facilities and practices collectively
referred to as the "Facilities") shown on the final plans which are part of Covered Approvals, copies
of which are on file in the Town of Ithaca offices. Without limiting the foregoing, the Owner agrees
to construct and implement, at its expense:
(a) The Facilities, which shall be located substantially as shown on the site plan
and/or subdivision drawings submitted as part of each Covered Approval, (referred to in this
Agreement as the "Drawings"); and
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(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
orade, 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 and implemented 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 Stormwater Management Officer.
2. Inspection 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 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 Covered Approval and is set forth in the
Stormwater Pollution Prevention Plan (SWPPP), or equivalent document acceptable to the
Stormwater Management Officer if no SWPPP was created, produced for the respective Covered
Facility, a copy of which shall be provided to the Stormwater Management Officer prior to
installation of the Facilities. In addition, the Owner shall perform such other inspections,
maintenance and repair as may be reasonably required by the Stormwater Management Officer 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 Stormwater Management Officer, 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 Stormwater Management
Officer 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 Stormwater Management Officer 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 any portion of the Facilities in the event of a threat to the
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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.
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 Stormwater Management Officer 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 Stormwater Management
Officer. 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 he entitled to recovery from the other party
of its reasonable costs in prosecuting or defending any action, including reasonable attorneys' fees.
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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 Stormwater Management Officer 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 Covered Approvals 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 plans/subdivision approvals.
8. Additional Reguirements. 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 Town of Ithaca tax parcel 41.-1-30.2. 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 Covered Approvals, 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
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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 elected officials,
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
water,,; (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.
Date
14 t 2-0)
Date
TOWN OF ITHACA
B y: 7-1--
IV
H b Engma , Superv' r
Ithaca College
By:
Richard J. Cout e, Associate VP Facilities
Pate , i o1 0
10/7 i20011
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STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On the day of in the year 200_ before me, the undersigned, personally
appeared 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.
Notary Public
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On he ay of OC be r- in the year 2009 before me, the undersigned, personally
appeared ���� 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.
Nota Public
CRYSTAL L. YOUNG
Notary Public, State of New York
Qualified in Tompkins Co. 4839802
Commission Expires May 31, 201(_
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