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HomeMy WebLinkAbout552505-007No. 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 r�7 552505 12/23/2009 10:58 AM Document Type: MISC RECORDS Parties To Transaction: CU 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 *552505-007* 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. J4�M-4 e vd'e-x Tompkins County Clerk Please do not remove this page. ( ur ne(( Unnver Iry Stortimater Mamtenam e A,greernew — 612012007 OPERATION, MAINTENANCE, AND REPORTING AGREEMENT THIS AGREEMENT is effective this 2e day of June, 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, an education corporation chartered by the State of New York, c/o Environmental Compliance and Sustainability Office, Cornell University, Ithaca, New York 14853 (the "Owner"). WITNESSETH: WHEREAS, the Owner has received final site plan approvals, final subdivision approvals, and/or special permits for one or more projects in the Town of Ithaca, Tompkins County, New York, and may receive project approvals in the future (collectively, the "Approvals") from the Town's Planning Board or other Town boards or officers; and WHEREAS, some of these Approvals have been, or will be, granted conditional upon the construction, maintenance and implementation of approved stormwater facilities and/or other stormwater management practices, submission of stormwater inspection reports, and/or entry into 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 project containing stormwater facilities/practices; and WHEREAS, the Owner is a large land owner that expects to be constructing and implementing many stormwater facilities/practices in the future; and WHEREAS, a single agreement covering stormwater facilities/practices 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 of Facilities and Implementation of Practices. (a) The Owner agrees to construct all of the stormwater management facilities, erosion and sedimentation control facilities and storm drainage facilities (collectively referred to as the "Facilities") shown on final plans which are part of any existing or future Covered Approvals, copies of which are filed in the Town of Ithaca offices upon issuance of each Covered Approval. Without limiting the foregoing, the Owner agrees to construct, at its expense: (i) The Facilities, which shall be located substantially as shown on the site plan drawings, subdivision drawings, and/or other drawings approved as part of Pagc I of 7 Iune 26. 2007 Com ell Unurerwry Stomm liter Maintenow e Al;reement — 6/26/2007 each Covered Approval (referred to in this Agreement as the "Drawings"); and (ii) 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 (iii) 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 Engineer. (b) The Owner further agrees to implement all approved stormwater management practices ("Practices"), in addition to the Facilities, that are required as part of a Covered Approval. 2. Inspection Maintenance and Repair of Facilities and Practices. The Owner agrees for itself, its legal representatives, successors and assigns and any other persons or entities who obtain title to or an interest in any portion of the properties on which any of the Facilities or Practices are located, such agreement being expressly intended to run with the land and be binding forever, to operate, maintain and repair the Facilities and Practices to insure that they 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 and Practices which is part of the Covered Approval and is set forth in the approved Stormwater Pollution Prevention Plan (SWPPP), or approved equivalent document if no SWPPP was created, produced for the respective Covered Approval. In addition, the Owner shall perform such other inspections, maintenance and repair as may be reasonably required by the Town's Engineer in order to assure the continued operation of the Facilities and Practices 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 and Practices functioning in a good and workmanlike manner. 3. Town Inspections and Repair. (a) The Owner shall grant to the Town the permanent easement and right-of-way which is attached to this Agreement as Exhibit A. The Town understands that the Owner's Facilities and Practices are located on and around a college campus and that, where possible and where no emergency situation exists (as determined by the sole discretion of the Town), 24-hour advance arrangements as to the time and an escort, shall be made with the Owner's Representative ("Owner's Representative"), before entering. Owner shall designate to the Town's Engineer in writing the Owner's Representative, who may change from time to time upon advance written notification to the Town's Page 2 of 7 June 26, 2007 Comr[It 'nn'eieit StorrmialerMuintenowe;Agreemem-W2612007 Engineer. Owner shall also designate to the Town's Engineer in writing one or more back-up Owner's Representatives in the event the primary Owner's Representative is not available. (b) The Owner agrees that subject to the foregoing, the Town may enter the easement and right-of-way or any portion thereof at any time and from time to time for the purposes of observing and inspecting the Facilities and Practices as may be deemed appropriate, necessary or desirable by the Town, the Town's Engineer, or other officers or employees of the Town, and to make repairs to the Facilities and Practices as set forth below. If maintenance deficiencies are found as a result of such inspections, the Town Engineer will notify the Owner's Representative 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 Town Engineer 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 due to a threat to the safety of the Facilities, Practices, or properties adjacent to or downstream of any portion of the Facilities or Practices requiring immediate action, and the Owner, after being put on notice by telephone call to the Facilities Customer Service Center at 607-255-5322 (which is Owner's 24-hour-a-day emergency number for reporting facilities problems), cannot or does not effect the emergency repairs in a timely manner, then the Owner hereby authorizes the Town, its officers, agents, contractors and employees, to enter upon the property pursuant to advance notice by telephone call to the Owner's Representative, and to effect emergency repairs to any portion of the Facilities and Practices, with the cost of such repairs to be reimbursed by the Owner to the Town within 10 days of demand for same. (c) When any portion of any Facility or Practice 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 Town Engineer 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 Town Engineer. 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 Past 3 47 June 26, 2007 Cornell Unn ei gym, Slonm atet Muin[encrnee Agreement — 6/26/2007 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 and Practices 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. Inspection Reports. The Owner shall submit an annual stormwater inspection report to the Town's Engineer 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. Notwithstanding the foregoing, Owner shall submit stormwater inspection reports on a more frequent basis or on a different timetable where required by the Covered Approval or by law, rule or regulation. 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. Reports shall be signed by the duly authorized representative of the Owner, and shall attest to the accuracy of the information provided in the report. Failure to submit the reports, or the submission of inaccurate reports, shall constitute a condition of non-compliance with the Covered Approval and be subject to enforcement as outlined below. 7. Alterations and Discontinuation of Facilities and Practices. The Owner shall not authorize, undertake or permit alteration, abandonment, modification or discontinuation of the Facilities or Practices except in accordance with written approval of the Town and pursuant to any applicable requirements for modification of the Covered Approval. Page 4of7 June 26, 2007 CoIfl(It L4rnverwty StoIIII water Ma[ntenawe A�;reenten!-012012007 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. The parties agree to amend this Agreement as necessary to incorporate the requirements of any new or amended laws, ordinances or regulations. 9. Recording. This Agreement shall be filed in the office of the Tompkins County Clerk and when recorded shall be referenced to the easement and right—of-way recorded concurrently therewith. The costs of filing and recording 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 or an interest in any portion of the properties on which any of the Facilities or Practices 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, or an interest in, any portion of the properties on which any of the Facilities or Practices 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 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 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 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 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 Pagc 5 47 June 20. 2007 Connell tiInlemItl StoinnrulerMctuntenutn(-eAg)eemetit-612612007 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. Assignment.� The Town may assign this Agreement and any of its rights, duties and obligations to any successor entity or governmental institution, or to any one or more drainage or other districts hereafter created by the Town. 15. 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 —�`A-��7 By. - Date H ngman Town Superviso CORNELL UNIVERSITY Date +Joane. DeStefano Vice President for Financial Affairs 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 Page 6 of 7 .tune 26, 2007 Cot) I �nII ersIty ShirmtiuIei Muuntownce Akreemen1 012012007 his/her/their signature(s) on the instrument, the individual(s), o the person upon behalf of which the individual(s) acted, executed the instrument. Notary Public PAULETTE NEILSEN Notary Public, State of New York No, 01 NE6156809 Qualified in Tioga County STATE OF NEW YORK Commission Expires December 4, 20� COUNTY OF TOMPKINS : ss.: O the day of EPTI: 1kPfDt-1, — 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 of i`deJvv Yoo, Page 7 of 7 June 20. 2007 TP-584.2 (10/96) IL4 Real Estate Transfer Tax Return For Public Utility Companies' and Governmental Agencies' Easements and Licenses This form may only be used by public utility companies regulated by the Public :service Commission and governmental agencies for the recording of easements and licenses where the consideration for the grant of such easement or license is $500.00 or less. Recording Office Time Stamp Name of grantee (public utility company or governmental agency) I Federal employer identification number (if applicable) Address of grantee Name(s) of Grantor Of Easement or License Address of Property Name and telephone number of person to contact Consideration Given For Easement or License 1. Conifer Realty, LLC"IS� Mecklenburg Rd, TP 27.-1-13.162 -0- 2. `' 953 Danby Rd TP 41--1-30.2 -0- Li l 3 dimitri Starostin & Olga Malysheva 549 Warren Rd TP 70.-1-1 -0- 4. Cornell University S K -0- 5. Dewitt Middle School Q� L%,.i % Warren Rd TP 72.-1-2.2 -0- 8. 10. 12. 13. 14. 15. If more than fifteen convevances are to be recorded, attach a schedule of such other convevances. Signature of Grantee I certify that the grantee is a public utility regulated by the Public Service Commission or is a governmental agency and the grantee of the easements and/or licenses above; that it is true to the best knowledge of the grantee that the granting of each such easement and/or license is exempt from Real Estate Transfer Tax imposed by Article 31 of the Tax Law by reason that each such conveyance is for a consideration of five hundred dollars or less and/or the conveyance is being made to a governmental agency. Name of grantee Signature of partner, officer of corporation, governmental official, etc. Title