HomeMy WebLinkAbout600846-002600846-002 12/03/2012 12:00:00 AM
s Co
Aurora R. Valenti
'"•� *• TOMPKINS COUNTY CLERK
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320 North Tioga Street
Ithaca, NY 14850
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* • " (607) 274-5431
Fax: (607) 274-5445
No. of Pages: 8
(including this
cover page)
Receipt No. 600846
Date: 12/3/2012
Time: 04:16 PM
Instrument Number
*600846-002*
Delivered By:
WILLIAMSON, CLONE, & STEVENS
Return To:
WILLIAMSON, CLONE, & STEVENS
Document Type: MISC RECORDS
Parties
To Transaction: EAC MONTESSORI -- TOWN OF ITHACA
Town/City:
Deed Information
Taxable Consideration:
State Transfer Tax:
County Transfer Tax:
RETT No.:
Mortgage Information
Taxable Mortgage Amount:
Basic Mortgage Tax:
Special Mortgage Tax:
Additional Mortgage Tax:
Local Mortgage 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.
"� e rd'-t -
Tompkins County Clerk
Please do not remove this page.
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600846-002 12/03/2012 12:00:00 AM
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(AWm of filthy) Stom►«aw Maintenance Agreement — (date)
O D
OPERATION, MAINTENANCE, AND REPORTING AGREEMENT
THIS AGREEMENT is effective this:-` y &2215
12, by and between the
TOWN OF ITHACA, a municipal corporation with officorth Tioga Street, Ithaca, New
York 14850 (the "Town"), and the ELIZABETH ANNE ONTESSORI SCHOOL OF
ITHACA a 501(C) 3 located at 120 King Road East, Ithaca, New York 14850 (the "Owner").
WI TNESSETH:
WHEREAS, the Owner received final site plan/special permit Approvals (the "Approvals")
from the Town's Planning Board for the Field of Dreams project by resolution number 2007-092
dated September 4, 2007 and for the EAC Montessorl School Additions and Alterations project
by resolution number 2012-065 dated September 4, 2012 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 Approvals were granted conditionally upon the constriction, maintenance
and implementation of approved stormwater facilities and/or other stormwater management
practices, submission of stormwater inspection reports, and an agreement with the Town regarding
the same;
NOW, THEREFORE, in consideration of the granting of the Approvals and in furtherance of
the public purposes of providing adequate stormwater retention and maintenancx, 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 the final plans which are part of the Approvals, copies of which are on file in
the Town of Ithaca offices. Without limiting the foregoing, the Owner agrees to construct, at its
expense:
(i) The stormwater pond (also referred to as the "4' deep pool'j, which shall be
located substantially as shown on the EACMSI Fleld of Dreams Plans (specifically Sheet
C102, dated August 24, 2008, and the porous pavement parking lot and underground
stormwater storage facilities, which shall be located substantially as shown on the EAC
Montessori School Additions and Alterations Plans (specifically Sheet C1029 dated
August 3, 2012) (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,
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(Name of batty) Stormwater Maintenance Agreement — (date)
rules, or regulations.
(b) The Owner further agrees to implement, at its expense, all approved stormwater
management practices ("Practices"), in addition to the Facilities, that are required as part of the
Approvals, and such future Practices as may be required by applicable laws, rules, or regulations.
(c) All of the Facilities and Practices in subparagraphs (a) and (b) above 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
Town Engineer.
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
Approvals and is set forth in the approved Field of Dreams Pond Maintenance Plan dated
September 12, 2008 and EAC Montessori School Additions and Alterations Basic Stormwater
Pollution Prevention Plan (Basic SWPPP) dated August 3, 2012 both 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 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, Repair and other Activities. 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 and Practices at any time and from time to time as
may be deemed appropriate, necessary or desirable by the Town, the Town Engineer, or other
officers or employees of the Town, and to make repairs to and undertake other actions regarding 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 in writing, and the Owner shall cause needed
repairs to be made and/or needed maintenance performed within the number of days set forth in such
notice. If the Owner fails to complete the repairs and/or maintenance 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/or maintenance performed and will charge the Owner for the cost of such
repairs and maintenance. The Owner agrees to pay for such repairs and maintenance 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 perform emergency maintenance on,
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(Name (?f Entity) Stormwater Maintenance Agreement — (date)
and/or to alter, remove, replace, or change the size of, any portion of the Facilities or Practices in the
event of a threat to the safety of the Facilities, Practices or properties adjacent to or downstream of
any portion of the Facilities or Practices, 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 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 or undertakes emergency activities
as described in paragraph 3 above and issues a demand for reimbursement, and the Owner disputes
either the need for the repairs/activities or the cost of the repairs/activities, 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/activities, 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 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 or undertakes emergency
activities as described in paragraph 3 above and the Owner fails to reimburse the Town for the cost
of said repairs/activities 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/activity shall constitute a lien upon the land on
which the Facilities or 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
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• (Name of Entity) Stormwater Maintenance Agreement — (date)
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 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 Approvals 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 Owner or other legally responsible
party, 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 site plan/special permit Approvals 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 Approvals of the Town and pursuant to any
applicable requirements for modification of the site plan/special permit 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. 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 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 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 site plan/special permit Approvals, shall be deemed a violation of the
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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 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
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.
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(Name ol'knfitO Stormwater Maintenance Agreement - (date)
TOWN OF ITHACA
Date IiWbert 3 - �E � man, §4pervisor
V
EAC Montessori School of Ithaca
1,
By:
Dkte Lisa R. Smith — Executive Director
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(Name of Entity) Stormwater Maintenance Agreement — (date)
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On the, day of in the year 20j_ ,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.
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
Notary Public.
Debra DeAuglstine
Notary Public - State of New York
No. 01 DE6148035
Qualified in Tompkins County
My Commission Expires Juno 19, 20
the f �' }�MLm On �- day o the year 20� before me, the undersigned, personally
appeared "CL-7 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.
Rebooft
Notary Publtat� yoIt
No. OI J05046462
Oualffied In Commission ExpiresJulyiT County
Y � 2Q—L:�
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