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HomeMy WebLinkAbout552505-006No. of Pages: (including this cover page) Receipt No Date: Time: Aurora R. Valenti TOMPKINS COUNTY CLERK 320 North Tioga Street Ithaca, NY 14850 (607)274-5431 Fax- (607) 274-5445 7 552505 12/23/2009 10:58 AM Document Type: MISC RECORDS Parties To Transaction: ELIZABETH ANN CLUNE Town/City- Deed Information Taxable Consideration: State Transfer Tax: County Transfer Tax: RETT No. State of New York Tompkins County Clerk Delivered By: TOWN OF ITHACA Return To: ITHACA TOWN OF Instrument Number *552505-006* Mortpaae 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. J'U�" te - Tompkins County Clerk Please do not remove this page. EAC'MS/ Stormxvater Maintenance Agreement - September 12, 008 OPERATION, MAINTENANCE, AND REPORTING A( REE`MENT THIS AGREEMENT is effective this day of ��E' t• -, 2009, by and between they " TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca, New York 14850 (the "Town"), and Elizabeth Anne Clune Montessori School of Ithaca (the "Owner"). WITNESSETH: WHEREAS, the Owner received final site plan approval for the Field of Dreams project (the "Approval") from the Town's Planning Board by resolution number 2007-092 dated September 4, 2007 on tax parcels 43-1-3.5, 43-1-3.6 and 43-1-3.21 at (120 & 122 King Road East) 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 pond, which shall be located substantially as shown on the EACMSI Field of Dreams Plans (specifically C102, dated August 24, 2008) (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 Storm Water 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 Page 1 of 6 07/ 13/06 EACAM Starmwater Maintenance Agreement -- September 12, 2008 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 on Field of Dreams Pond Maintenance Plan prepared by TG Miller. In addition, the Owner shall perform such other inspections, maintenance and repair as may be reasonably required by the Town's Storm Water 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 pennanent 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 Storm Water 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 Storm Water 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 Storm Water 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 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 Storm Water 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 Page 2 of 6 07/ 13/06 AA(AIS7 Storm water Maintenance Agreement — September 12, 3008 other address as the Owner may designate in writing to the Town Clerk and Storm Water 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 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 Storm Water 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 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 Page 3 of 6 07/ 13/06 F,ACMSI Stormwater Maintenance Agreement — September 12, 2008 accordance with written approval of the Town and pursuant to any applicable requirements for modification of site plans approvals. S. 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 parcels 43-1-3.5, 43-1-3.6 and 43-1-3.21. 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 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 Page 4 of 6 07/13/06 E'ACMS7 Stormwater Maintenance Agreement - September l?, 2008 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 / `' /lt�7 By: �To7wnpervisor ' ate HAbenri. E�aii, EACMSI © By: D e Andrea Riddle, Principal Page 5 of 6 07/ 13/06 EACMSI Storrnwater Maintenance Agreement - September 12, 200 STATE OF NEW YORK COUNTY OF TOMPKINS : ss.: 14 � On the 31? day of �n the year 200_ before me, the undersigned, personally appeared ; Id .4 personally known tome or proved tome 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. ROBERT J. CLUNE Notary Public oc ' State f New York Certified in Tompkins County Term Expires May31, 20446 STATE OF NEW YORK COUNTY OF TOMPKINS : ss.: O the - day of tt t- in the year 200_ before me, the undersigned, personally appeared —�F �lti L, 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. Page 6 of 6 m/1 3 �06