HomeMy WebLinkAbout2016-10852 Q�1N5.C�fA III II II I I I I IIIIVIIIII II II II II III I II
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Tompkins County Clerk Recording Page
Return To Maureen Reynolds, County Clerk
ITHACA TOWN OF Tompkins County Clerk
320 North Tioga Street
Ithaca, NY 14850
(607) 274-5431
Document Type: MISC Receipt Number: 16-139441
Party 1 Party 2
ITHACA TOWN OF THERM INCORPORATED
Fees
Recording Fee $0.00 Instrument #: 2016-10852
Pages Fee $0.00
State Surcharge $0.00
Total Fees Paid: $0.00
State of New York
County of Tompkins
Filed on September 12th, 2016 at 4:01:16 PM with a
total page count of 8.
Tompkins County Clerk
This sheet constitutes the Clerk's endorsement required by section 319 of the Real Property Law of the State of New York
MR Do Not Detach
2016-10852 09/12/2016 04:01:16 PM
OPERATION,MAINTENANCE,AND REPORTING AGREEMENT
THIS AGREEMENT is effective this day of Aogftst; 2016, by and between the
TOWN OF ITHACA, a municipal corporation with offices at 215 North Tioga Street, Ithaca,
New York 14850 (the "Town"), and Therm Incorporated, a New York Corporation with its
principal place of business at 1000 Hudson Street Extension, Ithaca, New York 14851 (the
"Owner").
WITNESSETH:
WHEREAS, the Owner received final site plan approval for +-20,000 square foot
manufacturing facility (the "Approval") from the Town's Planning Board by resolution number
2016-032 dated June 21, 2016 on tax parcel 54-2-1 ,1000 Hudson Street Extension, Town of
Ithaca Tompkins County, York, and
WHEREAS, such Approval was granted conditionally upon the construction,
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 Approval 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 storm water 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 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:
(i) The Bioretention Area and Detention Pond, which shall be located
substantially as shown on the Grading & Erosion Control Plan (Sheet 3 of 4), dated
4/06/16 and revised 7/27/16, which is part of the final Site Development Plans for Therm,
Incorporated. Manufacturing Expansion, prepared by Marathon Engineering, Sheets 1-16
(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.
(b) The Owner further agrees to implement, at its expense, all approved stormwater
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management practices ("Practices"), in addition to the Facilities, that are required as part of the
Approval, 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 Approval and is set forth in the approved
Stormwater Pollution Prevention Plan dated May 23, 2016 and revised July 27, 2016, prepared
by Marathon Engineering. 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.
(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 is a federal
defense contractor 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 of
entry and an escort shall be made with the Owner's representative ("Owner's Representative")
before the Town enters the Owner's premises. 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 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 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
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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 reasonable 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, 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
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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 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 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 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 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 site plans.
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 54-2-1. 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
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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 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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective the day
and year first above written.
TOWN OF ITHACA
Date William D. Goodman
Supervisor
THERM, INCORPORATED
X164 By: /4 �0'4'�z
Date Robert R. Sprole III, sq.
President
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STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On the 6 76 day of& mb&- in the year 20/6 before me, the undersigned, personally
appeared UEf/"I SjQe D/zf 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.
pUTUMNJANIELLEEDWA DDS
6/�UJAOW
�yryNft$tdeot NewYork
k01ED6154554
InTbpaCounty Notary Public
Q* er23,20.
STATE OF NEW YORK
COUNTY OF TOMPKINS : ss.:
On the da of in the year 2CL before me, the undersigned, personally
appeareA,6Jk` 4personally 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
PAULE TE TERWILLIGER
Nobly Public,Store of New Yo*
No.01TE6156809
OLoM d in Tompkka Cou�ri!►
Comm"ion EWkM Deoambw 4.20
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