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HomeMy WebLinkAboutTB Minutes 2016-12-21 Meeting of the Ithaca Town Board Wednesday, December 21, 2016 at 4:30 a.m. Agenda Call to order 1. Discuss and consider acceptance of final Findings Statement for the Maplewood Development 2. Discuss and consider authorization for Supervisor to sign a Ro ad Use Agreement associated with the Maplewood Development 3. Discuss potential changes to 2017 Capital Improvement Plan due to Maplewood 4. Discuss potential change to Maplewood PDZ 5. Adjourn Meeting of the Ithaca Town Board Wednesday, December 21, 2016 at 4:30 p.m. Minutes Present: Bill Goodman, Rod Howe, Pamela Bleiwas, Rich DePaolo, Tee-Ann Hunter, Pat Leary Staff: Sue Ritter, Director of Planning; Chris Balestra, Planner; Bruce Bates, Director of Code Enforcement; Jim Weber, Highway Superintendent; Debra DeAugistine, Deputy Town Clerk Mr. Goodman called the meeting to order at 4:30 p.m. and noted that he added two items to the agenda: discussion of 1) the potential changes to the 2017 capital improvement plan due to Maplewood, and 2) a potential change to the Maplewood PDZ. Agenda Item: Discuss and consider acceptance of final Findings Statement for the Maplewood Development Ms. Balestra stated that there were very few changes made to the findings statement at the planning board meeting on December 20th, and that most were non-substantive, involving typos and rewording. Mr. DePaolo asked whether the issue of construction on Sundays and holidays was resolved. Ms. Balestra responded that the approval included a condition restricting construction to the hours of 8 a.m. to 6 p.m. Monday through Friday; no Saturday construction will be allowed unless there are exceptional circumstances and only with the approval of the Director of Code Enforcement. Construction will not be allowed on Sundays and federal holidays. Mr. DePaolo pointed out that the findings statement says that construction “should” be prohibited on Sundays and federal holidays. Ms. Balestra said she will change that to “shall.” Ms. Hunter asked why we’ve gone from Cornell conveying the land for the tank to a land transfer arrangement. Mr. Goodman responded that Cornell has asked to do the same type arrangement they did for the Bolton Point East Hill tank: the town got a permanent easement for the tank site with a clause that says if Cornell wants to take the land back, they can, but they have to pay to put up a new tank and new piping to our specifications on other Cornell land that they would provide us. The same conditions will hold true for this tank. Jeremy Thomas from Cornell Real Estate said that Cornell never parts with land so close to campus. If they decide they want to take the land back, they would have to pay to replace the tank somewhere else on Cornell property with according to our specifications for the selected site. Ms. Bleiwas asked when we could anticipate this agreement being reached. TB Minutes 12-21-2016 Page 2 Mr. Goodman said it’s in being negotiated, and he would assume that the agreement is part of what we would have to submit to the comptroller’s office at the beginning of the process, because the site plan approval will have to be done by the planning board very soon. Right after that, we’ll have to deal with the PIO. Susan Brock has looked at it; John Barney did the original back in 2005. It will have to be approved by the town board. TB Resolution 2016-170: Adopt Findings Statement for Maplewood Graduate and Professional Student Housing Redevelopment Project Whereas, the project is the proposed Maplewood Graduate and Professional Student Housing Redevelopment Project located between Maple Avenue and Mitchell Street, Town of Ithaca Tax Parcel No.’s 63.-2-10.2, 63.-2-1, 63.-2-2, 63.-2-14, and 63.-2-3, involving the demolition of the existing Maplewood housing complex and redeveloping the +/- 17 acre site with up to 475 residential units in a mix of townhomes, stacked flats, and multi-family apartment buildings, and Whereas, the proposed project, which requires rezoning by the Town Board and site plan and special permit approval by the Planning Board, is a Type I action pursuant to the New York State Environmental Quality Review Act (“SEQRA”) and its implementing regulations at 6 NYCRR Part 617, and Whereas, the Planning Board established itself as lead agency to coordinate the environmental review for the proposed Maplewood Redevelopment project and issued a positive determination of environmental significance at its meeting on May 24, 2016, for the above-referenced action as proposed, and required that a Draft Environmental Impact Statement (DEIS) be prepared; and Whereas, the Planning Board held a Public Scoping Meeting on June 21, 2016 to hear comments from the public and interested and involved agencies regarding the scope and content of the DEIS, and on July 19, 2016, accepted the revised Final Scoping Document as being adequate to define the scope and content of the DEIS for the Maplewood Redevelopment Project, and Whereas, the Planning Board accepted the DEIS, prepared by the applicants, on September 20, 2016 as complete and adequate for the purpose of commencing public review, pursuant to 6 NYCRR § 617.9, while also acknowledging that deficiencies remained in the DEIS as listed in Planning Board Resolution No. 2016-053, and Whereas, the Planning Board held a public hearing on Tuesday, October 18, 2016 to obtain comments from the public on potential environmental impacts of the proposed Maplewood Redevelopment Project as evaluated in the DEIS, as well as on the preliminary site plan application, and accepted written comments from the public regarding the DEIS until October 31, 2016, and Whereas, the Ithaca Town Board, as an Involved Agency, received paper and/or digital copies/links to the DEIS per board members’ specifications of preferred format, and Whereas, a Final Environmental Impact Statement (FEIS), prepared by the applicant and revised by the Planning Board, was accepted by the Planning Board on November 22, 2016 pursuant to 6 NYCRR § 617.9, and TB Minutes 12-21-2016 Page 3 Whereas, planning staff, under the direction of the Planning Board, filed a Notice of Completion of the FEIS and distributed the FEIS on November 30, 2016 to involved and interested agencies and the public, as required by 6 NYCRR §§ 617.9 and 617.12, and Whereas, the Ithaca Town Board has reviewed the DEIS, FEIS and the relevant documents incorporated therein, and has reviewed and discussed the proposed Findings Statement for the project on December 12, 2016 and December 21, 2016, Now, therefore, be it Resolved, that the Town Board as an involved agency in the environmental review, does hereby adopt the Findings Statement for the Maplewood Graduate and Professional Student Housing Redevelopment Project, dated December 21, 2016, and authorizes planning staff to file and distribute the Findings Statement in accordance with the requirements of SEQRA. Moved by Rod Howe; seconded by Pamela Bleiwas Vote Ayes: Goodman, Howe, DePaolo, Bleiwas, Hunter, Leary Agenda Item: Discuss and consider authorization for supervisor to sign a road use agreement associated with the Maplewood Development Mr. Goodman said that the agreement is the same as the one we did for Conifer Senior Housing back in May. Ms. Brock and Mr. Krogh both worked on it, along with Randy Markus, Cornell’s attorney. He brought the board’s attention to Exhibit A, which is the truck traffic plan. The have Maple Avenue, which is a town road, marked as a secondary traffic route; the primary traffic route is along Mitchell Street, which is a county road, going towards East Hill Plaza. The reason for the agreement is the use of Maple Avenue. The plan shows part of the secondary route going down Route 366 towards downtown. The planning board required that they remove that section so trucks aren’t sent down State Street and through the city; they can only go out Route 366 towards Dryden. He’ll attach the revised map to the agreement before he signs it. Mr. DePaolo asked what the point is of a post-activity road and bridge survey without first having a pre-activity survey. Mr. Weber responded that Gene Redman and Dan Thaete walked the site, looked at the conditions and age of the road, and came up with a cost estimate. The town and developer agree on the current condition of the road. We estimated current repairs needed and prorated the cost based on the estimated condition of the road after construction due to the increase in traffic potentially coming off the site. Their percentage of the total repair cost is $200,000. Mr. DePaolo questioned the reference on page 3, paragraph 5c, where it states that “only reasonable objections shall be made.” He asked who determines what a reasonable objection is; it seems entirely subjective. TB Minutes 12-21-2016 Page 4 Mr. Markus responded that it’s a legal standard common to any such agreement; it’s not subjective, it’s what could be considered reasonable under the circumstances. It’s not a random word. Mr. DePaolo asked whether there is a set of clearly specified criteria related to road use agreements that would fall under the heading “reasonable.” Mr. Markus said there is not: use of the word reasonable is common practice agreements and is acceptable in that there are any number of court decisions that would evaluate what is reasonable and what is not in comparable circumstances. Bubble gum on the road would be considered an unreasonable issue, whereas something that would cost the town money to repair would be reasonable. Mr. Goodman pointed out that this is the agreement Guy Krogh originally drafted in the spring for use with Conifer because it was the first time we had ever done a road use agreements. Mr. DePaolo asked about page 4, 6e: Is the frequency per mile to be determined in the event a dispute is filed or is it determined up front? Mr. Weber responded that it is determined at the time a dispute is filed. Mr. Goodman said the company will have to provide us with a security in the amount of $200,100 dollars as a condition for getting the demolition permits. TB Resolution 2016-171: Approval of the Maplewood Road Use Agreement and authorization for the Town Supervisor to sign same Whereas, the Town has a road use impact local law in its Town Code, and in order to help manage roadway impacts and damages, and avoid roadway closures, and to otherwise construct certain facilities generally known as the Maplewood project (“Project”), Educational Realty Trust, Inc. (the “Company”) completed a vehicle and truck count data sheet which showed significant traffic levels such that the Town Code provisions were triggered, and the Company will necessarily need to use and traverse Town highways, roads, bridges, culverts, and related lands, areas and easements owned or maintained by the Town (collectively, “Road” or “Roads”) with heavy machinery, including, but not limited to trucks, supplies, excavated materials, construction machinery and equipment, and other related items (hereinafter, “Road Use Activities”), and Whereas, the Company may or will also necessarily need to conduct certain construction activities and improvements upon, within, or adjacent to Roads (“Construction Activities”), and the Town therefore seeks guarantees and assurances from Company that Company will pay and indemnify the Town for any distress or damage to Roads caused by Road Use Activities and Construction Activities, as well as reimburse the Town for examination, inspection, and other analyses and approvals issued in respect of the Road Use Activities, the Construction Activities, and this Agreement; and TB Minutes 12-21-2016 Page 5 Whereas, the Company and the Town have discussed this matter and come to a mutual understanding, which will provide for the Company’s responsibility for any damage to Roads caused by Road Use Activities and Construction Activities, now therefore be it Resolved, that the Town Board approves of the “Road Use Agreement for Maplewood Development Project”, subject to the approval of the Attorney for the Town, and authorizes the Town Supervisor to sign said agreement. Moved by Bill Goodman; seconded by Tee-Ann Hunter Vote Ayes: Goodman, Howe, Bleiwas, DePaolo, Hunter, Leary Agenda Item: Potential Changes to Maplewood PDZ Ms. Ritter said that at the previous night’s planning board meeting there was a comment regarding a statement in the PDZ, which reads: “a thoroughfare or passage should align with the axis of a planned or existing street, passage, open space, corridor, or similar linear feature beyond the PD site.” It’s troublesome because it says “should” and not “must” and also because Maplewood is a long, narrow site with a rec way on one side and partly a cemetery on the other side, which results in there not being the neighborhood connections, which you’d want to see in a larger neighborhood setting. This language created lots of questions at the planning board meeting, and she’s proposing to take it out because it just adds complexity. Also, we’ve had communications with the applicant regarding the site plan and the PDZ in which additional questions were raised. The applicant has answered the questions, but staff hasn’t had a chance to look them over carefully. It sounds as though the final site plan won’t be brought before the planning board until the beginning of February, and the planning board resolution that was passed at their last meeting said that the PDZ does not have to be adopted until building permits are issued. She thinks the smart thing to do would be to wait and adopt the PDZ in February so staff has the time to communicate more with the consultants. In that case, at either the January 9th meeting or the study session, she might have some additional, proposed changes to make; we could then hold a public hearing and adopt the PDZ in February. The board agreed. Agenda Item: 2017 Capital Improvement Plan Mr. Goodman updated the board on the meeting of the public works committee that morning with Edr Trust, Andy Schiarabba from TG Miller, and Jeremy Thomas from Cornell. We explained that getting the water tank operational by July 2018 in unlikely since we’re already behind on the schedule. Mr. Goodman was unable to convince them to take on doing the contract designs and documents needed to put it out to bid. The next step is to lay out the schedule that for us to do it on our own, which will put us beyond the July 2018 timeframe. They will look at other ways to supply the water needed for the project until we can get the tank done. TB Minutes 12-21-2016 Page 6 Mr. Weber added that even if the design services for the tank and water main portion were provided by the applicant, it would still require a significant amount of staff time, and we only have a four-person design unit. He and Dan Thaete are involved in the administrative approvals through planning, code, and the comptroller’s office, and since Mr. Thaete will focus on all the other development or planning process approvals strictly for Maplewood, he will be pulled out of our design process. This means that David O’Shea will have to take over all the other development applications, so he won’t have time to work on the design projects we had included in our 2017 budget. The Christopher Circle and Sapsucker water mains are ready to be advertised as is. Once those projects are awarded, our two interns will be the inspectors for those projects and only those projects. We will try to complete and comply with New York State for Dig Safely New York, and that’s one of the main functions of those employees. We have not got designs yet for the Perry Lane, Route 96B, sanitary relining and manhole rehabilitation projects, or the drainage improvements for the South Hill trail, so with the staff constraints, we won’t have designs for those to get them out to bid during the 2017 budget. He is bringing this forward because he has to enter into an expenditures agreement with the town board. Highway projects and stormwater projects will be impacted by this decision. He’s making the board aware so that when he comes in with the expenditures agreement, it will either reflect what was agreed to, and that impacts other developments, or we have to make modifications to accommodate this Maplewood development. Mr. Howe asked whether they were interested in helping with any of the design elements. Mr. Weber said they aren’t. He will put together a parallel schedule in which the town takes the lead on the design, which means we either try to do it ourselves or we go out for consultant services, the latter of which triggers process to put together scope services, solicit responses, come back to the board for authorization to award, and fund the design. We won’t have plans ready to advertise until August. At that point, do we want to have the contractor get started on the project only to shut down for the winter season? If not, we’re looking at construction starting in 2018, where we might be able to complete it by the end of that construction season. Mr. Goodman said that in order to get it done by July of 2018, we would need to get prep work done in 2017 for the tank site and doing the water main down Ellis Hollow Road, so in spring of 2018, we could just put the tank up and connect it to our system. But if we’re trying to do it in house or even if we’re trying to hire a consultant, that timeframe wouldn’t work, so we probably won’t get started on any tank site or water main work until 2018. Mr. Weber said a complicating factor is that the county has a tentative proposal to do reconstruction on Ellis Hollow Road in 2017, from the intersection of Pine Tree to Game Farm. That’s also the primary haul route for the road use agreement. The county may not be willing to allow us to have contractors constructing on a road that just got rebuilt and we need county approvals. Ms. Hunter wondered how they were planning to provide water to the development. It’s a proposal she’d like to understand better and whether any of our current water users outside of Maplewood will be impacted. Mr. Weber said that even though we know the Pine Tree tank is undersized, we've been able to nurse it through the last several years, so we'll still be able to fulfill our obligations to existing customers. Mr. Goodman asked whether there were any specific sewer lines we were thinking about working on this year that we'd have to cut out. Mr. Weber said we constantly go through and video our lines. We've got parallel lines on the north side and the south side of Slaterville Road and were hoping to rehab the south side. There had been conversation among staff based on the video work that there might be other areas that could have qualified for repair work that have risen to the top. There's a pressure issue on the Cliff Street main from Candlewyck down to the city. We have both a low pressure and high pressure line running down that road, and were looking to combine them and eliminate the high pressure line on the uphill side and also address the pressure issue that exists where we serve some city customers. Ms. Hunter asked whether, given that Cornell wants to develop an alternate water supply for their project, there are any projects Mr. Weber deems we should not set aside instead of devoting all our design energies to that project. Is there is anything for the greater good of the community that we should be attending to? She'd like to hear Mr. Weber's thoughts on that at a future meeting. Adjournment On a motion by Rich DePaoIo, the meeting adjourned at 5:20 p.m. ^bnjitted by -DeAugistine, First Deputy To . Clerk IB Minutes 12-21-2016 Page 7 1 ROAD USE AGREEMENT FOR MAPLEWOOD REDEVELOPMENT PROJECT This Road Use Agreement (“Agreement”) is entered into this ___ day of December, 2016 by and between the TOWN OF ITHACA, an incorporated municipal subdivision of the State of New York, with offices at 215 North Tioga Street, Ithaca, New York 14850 (“Town”), and EDUCATION REALTY TRUST, INC., d/b/a EdR Trust Collegiate Housing, a Maryland corporation with offices at 999 South Shady Grove Road, Suite 600, Memphis, TN 38120 (“Company”) RECITALS: WHEREAS, the Town has a road use impact local law in its Town Code, and in order to help manage roadway impacts and damages, and avoid roadway closures, and to otherwise promote and construct certain facilities generally known as the Maplewood Housing redevelopment project (the “Project”) the Company completed a vehicle and truck count data sheet which showed significant traffic levels such that the Town Code provisions were triggered , and the Company will necessarily need to use and traverse Town highways, roads, bridges, culverts, and related lands, areas and easements owned or maintained by the Town (collectively, “Road” or “Roads”) with heavy machinery, including, but not limited to trucks, supplies, excavated materials, construction machinery and equipment, and other related items (hereinafter, “Road Use Activities”); WHEREAS, Company may or will also necessarily need to conduct certain construction activities and improvements upon, within, or adjacent to Roads (“Construction Activities”), and the Town therefore seeks guarantees and assurances from Company that Company will pay and indemnify the Town for any damage to Roads caused by Road Use Activities and Construction Activities, as well as reimburse the Town for examination, inspection, and other analyses and approvals issued in respect of the Road Use Activities, the Construction Activities, and this Agreement ; and WHEREAS, Company and Town have discussed this matter and come to a mutual understanding , which the Parties desire to memorialize as set forth herein, which will provide for Company’s responsibility for any damage to Roads caused by Road Use Activities and Construction Activities, and NOW THEREFORE, in consideration of these promises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and the Town, each intending to be legally bound, agree as follows: 1. PERMISSIBLE ACTIVITIES. Company shall be permitted to enga ge in Road Use Activities and Construction Activities that will involve the use of Town Roads upon completion of the requirements and performance under this Agreement. 2. COMPANY RESPONSIBILITIES. a. Company shall be responsible for obtaining any approvals, permits, or orders, including renewals of each thereof, and compliance with the requirements and conditions thereof, which are or may be required by governing law or any authority having jurisdiction in relation to the same. Until any such approvals, permits, and orders are obtained the Company shall not engage in any Road Use Activities or Construction Activities unless expressly authorized by the Town in writing. b. To the extent that Construction Activities involve the installation of permanent facilities upon or below Roads, the digging of open trenches, or drilling of subsurface borings, Company shall be responsible for obtaining all consents, easements or rights-of-way from Town and all appropriate property owners to authorize the installation of such facilities and to conduct such activities prior to the commencement of said Construction Activities. c. The Company shall perform all work, construction, improvements, and roadway installations in a good a nd workmanlike manner and in accord with generally accepted engineering and construction practices. Construction responsibility shall be carried out in accordance with sound construction and site safety practices, and Company shall comply with all state and federal safety regulations applicable to the work being done. While work is being done on any of the public Roads in the Town by or on behalf of Company, Company shall establish work zones with 2 appropriate signage and warnings to the traveling public of the existence of the construction zone, and Company shall also provide adequate traffic control, as to provide safe passage in the vicinity of said construction zone or along such Road. Company also agrees to provide traffic control on all traffic routes when such highways are blocked during their use by Company under this Agreement. All traffic control plans to be used on Town highways shall be approved by the Town Highway Superintendent, and all traffic control signs and devices shall comply with the New York MUTCD. d. Company agrees that it will be responsible for ensuring that all debris, garbage and waste on Roads and private or Town-owned property related to Road Use Activities or Construction Activities are disposed of in accordance with governing law and managed in a manner as not to cause injury, loss, or damage, or as to in any way pose a danger to motorists, pedestrians, and others using Roads. Dust mitigation shall also be undertaken by Company. e. Company shall be responsible for paying the cost of any necessary road improvements, maintenance, or repair work as determined by and in accordance with the terms set forth in this Agreement. Additionally, any reasonable expenses incurred by the Town to review, approve, generate, confirm evaluate, or otherwise address an y application, survey, video survey, or other permit or application or road route designations of the Company shall be paid by the Company, either directly or by reimbursement to the Town within 10 days of invoicing therefor. f. Company’s responsibilities as set forth herein shall extend to Company ’s contractors, subcontractors, and independent haulers (all severally and jointly “Affiliated Parties”). A failure of Company or any Affiliated Parties to comply with the terms and conditions of this Agreement shall constitute a default by Company, regardless of any intent or knowledge of or on behalf of the Company. 3. ROAD ROUTES. a. Prior to the commencement of Road Use Activities or Construction Activities, Company will provide the Town with a proposed traffic route, including a list of the Roads and bridges that will be traversed as part of Road Use Activities or Construction Activities. As soon as practicable thereafter, but prior to the commencement of any Road Use Activities or Construction Activities, the Town shall notify Company of any objections to Company ’s proposed traffic route and list of Roads and bridges. The reasonable expenses, costs, and professional review costs, including roadway and route analyses, incurred by the Town shall be paid by Company. Company shall submit to the Town Highway Superintendent a haul route declaration on a form supplied by the Town. In addition to any survey or inspection requirements below, the Town (or its engineer) may test or pre-test any roadway segment of the proposed traffic route to conduct suitability, threshold, structural, geometric, or traffic tests and analyses to determine the suitability of the proposed route. b. Factors that may be used in evaluating a proposed traffic route include the condition of each proposed road to be traversed, the condition and weight capacity of any bridge to be crossed, the populations and facilities potentially impacted by the route, the type and configuration of vehicles using such route, Project needs, and other factor s as deemed reasonably relevant by the Town. The Town has examined the proposed haul and traffic route and determined that, due to the risk of damage to the road or a potential need for post -completion repairs, the Company shall post security in the sum of $200,100. c. If the Parties cannot resolve any routing objections or restrictions, the costs assessed to the Company, or the amount of any surety bond or undertaking, the Parties shall meet to resolve such dispute(s), and if they cannot then the final decision regarding the traffic route shall be that of the Town Highway Superintendent and the final decision regarding bonds, undertaking, and chargeable costs shall be made as set forth below for an “Improvement Invoice” and an “Improvement Dispute,” with these costs and expenses to be deemed a proper subject of an Improvement Invoice. d. The final traffic route and list of Roads and bridges usable for the Project, and any segments thereof or vehicles needed or proposed therefor, shall be added as a supp lemental exhibit to this Agreement as Exhibit A (hereinafter, “Traffic Route”). The approved Traffic Route shall serve as the basis for any required security or bonding. 3 e. In the event that Company deviates from a final Traffic Route without prior writte n consent from the Town, the Town may mandate that the Company shall cease and desist, and the Company shall do so. Such deviation shall also be a default under this Agreement that, among other remedies, may result in the closure of roads, a stop work orde r, and other remedies allowed under law or this Agreement. Notwithstanding the foregoing, Company may reasonably deviate from the Traffic Route solely as necessary in an emergency, and only for so long as necessitated by such emergency situation. Company shall immediately notify the Town of such emergency situation and the Company shall be liable for any and all damages to the Town or Roads, including for costs of repair, due to such use. 4. ROAD SURVEYS. a. A pre-construction Road Survey is not being required. b. Immediately following the comple tion of all Road Activities or Construction Activities Company shall prepare or cause to be prepared at its own and sole expense a post-activity video road and bridge survey of the Roads identified in the Traffic Route and deliver the same to the Town. c. If the Town incurs any costs or expenses reviewing the road survey or other data or information supplied, the reasonable costs thereof shall be paid or reimbursed by the Company within 10 days of invoicing therefo r. 5. ROAD IMPROVEMENTS a. If at any time during the pendency of this Agreement the Town determines that a proposed Traffic Route includes Roads and bridges which cannot, due to their condition withstand continued Road Use Activities or Construction Activities, the Town shall immediately notify Company of its determination. If the Town makes such a determination, any costs associated with the Town’s employment of structural engineers or other engineers shall also be borne by the Company, including whenever: (i) Road improvements are needed for the Project; or (ii) such condition has been caused in whole or in part by the Project or its Road Activities or Construction Activities . b. If the Town makes such a determination the Company shall have the option of modifying its Traffic Route or causing or making any necessary improvements to the Road or bridge, whether by direct action for a Road Activity permit or, with the consent of the Town, by reimbursing the Town the costs and expenses of the necessary improvement, including time, materials, vehicle costs, and any applicable mobilization costs . If the Town does make (or cause to be made) any such improvements the Town shall submit a written invoice to Company detailing the costs, fees and expenses incurred (or to be incurred) by the Town to perform the necessary improvement (an “Improvement Invoice”). c. Company agrees to pay the Improvement Invoice within 30 days of delivery and, unless specifically made in writing within such 30 days, any objection to the Improvement Invoice shall be and be deemed waived. Only reasonable objections shall be made and all objections shall identify the amount in dispute (an “Improvement Dispute”). If such objection is timely made, then the portion of the Improvement Invoice that is the subject of the dispute shall remain subject to resolution by the Parties, but the balance of the Improvement Invoice shall be and thereafter remain forever undisputed. Once an Improvement Dispute is filed the Parties shall promptly proceed with dispute resolution as provided for in this Agreement. 6. ROAD DAMAGE. a. Damage may include but not necessarily be limited to accelerated deterioration, cracking, imprinting, pitting, tracking, spalling, buckling of asphalt and road base or subbase, damage to culverts, bridges, shoulders, signage, utilities and poles, ditches, drainage facilities, and any other part of the roadway surface, subsurface, or any appurtenant areas or facilities that support such roadway or safe use or tran sportation thereupon (hereinafter, “Damage”). b. Within 30 days following the delivery of the post-activity video Road and bridge survey and the receipt of notice of completion of Road Use Activities or Construction Activities delivered to the Town by the Co mpany, whichever shall last occur, the Town must notify Company in writing that it believes Damage has occurred to the Roads or to 4 any bridges or roadway facilities, areas, or structures upon Traffic Route that resulted from, or arose in connection with Company’s Project, Road Use Activities, or Construction Activities. Such notification from the Town will include detailed descriptions of the location and nature of all Damage believed by the Town to have occurred, including current photographic or video depictions of such Damage. c. Within 15 days of receipt of a claim of Damage from the Town, Company will notify the Town in writing of its agreement or disagreement with the claim. If Company agrees that Damage has occurred as a result of Road Use Activities or Construction Activities, Company shall have the option of causing or making any necessary improvements to the Road or bridge, whether by direct action for a Road Activity permit or, with the consent of the Town, by reimbursing the Town the costs and expenses of the necessary improvement, including time, materials, vehicle costs, and any applicable mobilization costs. If the Town does make (or cause to be made) any such improvements the Town shall submit a written invoice to Company detailing the cost s, fees and expenses incurred (or to be incurred) by the Town to perform the necessary improvement (a “Damage Invoice”). If Company disagrees that Damage has occurred as a result of Road Use Activities or Construction Activities (a “Damage Dispute”), Company shall notify the Town of such disagreement, and the Parties shall promptly proceed with dispute resolution as provided for in this Agreement. During the pendency of any such dispute, the Town shall have the option to proceed with such repairs as it may determine are appropriate with the understanding that if such dispute is resolved in favor of Company, any costs incurred by the Town in undertaking such repairs will remain the expense of the Town. d. Company agrees to pay the Damage Invoice, or deliver Company’s objection to such Damage Invoice, within 30 days of delivery and, unless specifically made in writing within such 30 days, any objection to the Damage Invoice shall be and be deemed waived. Only reasonable objections shall be made and all o bjections shall identify the amount in dispute (a “Damage Invoice Dispute”). If such objection is timely made, then the portion of the Damage Invoice that is the subject of the dispute shall remain subject to resolution by the Parties, but the balance of t he Damage Invoice shall be and thereafter remain forever undisputed. e. In that event Company submits a Damage Invoice Dispute, Company shall provide post activity road borings at a frequency of bores per mile as specified by the Town, and cause an engineering analysis and comparison between such borings and the pre-activity borings and send such results to the Town. If the Company had elected seismic testing for pre-activity testing, the seismic testing and a similar comparative analysis shall be provided. Company shall bear the cost of all such borings, seismic testing, and other testing and analyses. f. If after review of pre- and post-testing analyses results in the Company continuing its Damage Invoice Dispute, then the Parties shall promptly proceed with dispute resolution as provided for in this Agreement. 7. EMERGENCY ROAD DAMAGE. a. If the Town, in its discretion, determines that a Road or bridge has been damaged during the pendency of Road Use Activities or Construction Activities and that such Damage is a danger to the public (hereinafter, “Emergency Damage Dispute”), then the Town shall immediately notify Company of its determination and any costs associated with the Town’s employment of a structural engineer(s) in respect of such emergency shall be borne by Company. b. Within 24 hours of the delivery of an Emergency Damage Dispute Company will notify the Town in writing of its agreement or disagreement with the claim. If Company agrees that Emergency Damage Dispute has occurred as a result of its Project, Road Use Activities, or Construction Activities, Company shall immediately obtain the consent of the Town for the emergency response plan and immediately effect any necessar y repairs or improvements as will fix, remove, of obviate the emergency. c. If the Company disagrees that such emergency was caused in whole or in part by Company, then the Town may effect any necessary repairs or improvements as will fix, remove, of obviat e the emergency and the Town may submit a written invoice to Company detailing the costs, fees and expenses incurred, including time, materials, vehicle costs, and any applicable mobilization costs incurred (or to be incurred) by the Town to perform the necessary work (an “Emergency Damage Invoice”). Company agrees to pay the Emergency Damage Invoice , or deliver Company’s objection to such Emergency Damage Invoice, within 30 days and, unless specifically made in writing within such 30 5 days, any objection to the Emergency Damage Invoice shall be and be deemed waived. Only reasonable objections shall be made and all objections shall identify the amount in dispute (an “Emergency Damage Dispute”). If such objection is timely made, then the portion of the Emergency Damage Invoice that is the subject of the dispute shall remain subject to resolution by the Parties, but the balance of the Damage Invoice shall be and thereafter remain forever undisputed. 8. DISPUTE RESOLUTION. a. In the event of an Improvement Dispute, Damage Dispute, Damage Invoice Dispute, or Emergency Damage Dispute (hereinafter, collectively “Dispute,” which term includes any fee, cost, or expense invoice or reimbursement), Company and the Town agree to submit to non-binding mediation with a neutral mediator approved by all parties to the Dispute during which each party will have their authorized representatives attempt to negotiate a resolution of the Dispute for a period not to exceed 30 days. b. Should the Dispute not be resolved by mediation, in order to limit the cost and time involved in resolving the Dispute, Company and the Town agree that the Dispute will be settled by binding arbitration administered by the American Arbitration Association in accorda nce with its applicable rules pertaining to the resolution of commercial disputes. c. In the event arbitration is necessary the matter shall be heard by a qualified, single arbitrator with no significant relationship with any of the Parties. The arbitrator shall be selected under applicable arbitration rules, but in all events the arbitration shall be venued and heard in Tompkins County, New York. d. For the purposes of clarity, the parties do not intend or consent to equity jurisdiction being solely emplaced within the authority or jurisdiction of the arbitrator, but the arbitrator may utilize ancillary equity jurisdiction in respect of issuing a final determination of the matter heard before him or her; it being the intent of this clause t o vest initial equitable jurisdiction and determinations, such as injunctive relief and stay orders, within the exclusive jurisdiction of the New York State Supreme Court in and for Tompkins County. 9. FINANCIAL SECURITY. a. Prior to the commencement of any Road or bridge use, Company shall obtain and deliver to the Town a surety or performance bond (“Bond”) that meets the requirements set forth below, in the amount of $200,100, which amount is calculated based upon the Traffic Route, the mileage and types of Roads and bridges thereupon, and a reasonable estimate of expected damage to or the cost of a Road replacement, as determined in the discretion of the Town. Such Bond shall be executed by a reliable bonding or insurance institution authorized to do business in the State of New York and acceptable to the Town and shall be attached to this agreement as Exhibit B. In lieu of a suitable bond, and with the consent of the Town, the Company may post cash or an Irrevocable Standby Letter of Credit (“LC”) in like amount, that meets the requirements set forth below and to be drawn upon a financial institution authorized to do business in New York State, duly agreeable to the Town and acceptable as to form by the Town Attorney of the Town. Such LC shall be attached to this agreement as Exhibit C. b. In the event the letter of credit contains a stated termination date, Company shall renew such letter, obtain a new letter of credit, or obtain a qualifying bond within 30 days in advance of such expiration date. In the event the Town draws on the letter of credit such that its value falls below $200,100, then Company shall immediately renew the letter of credit to bring it back up to $200,100. The letter of credit is to guarantee reimbursement to the Town for all costs, expenses, amounts due, labor costs, material costs, and equipment expenses the Town may incur in relation to this Agreement should or if Company shall default hereunder of fail to comply with its duties and responsibilities as set forth in this Agreement. c. All bonds and security shall be effective prior to the commencement of any Road Use Activities and shall remain in full force and effect for at least a period of six (6) months following the termination of Road Use Activities. Company shall be listed as principal with the instrument benefiting the Town, as obligee, and the bond shall be conditioned on the requirement that the Company will comply with the terms and conditions of this Agreement. The original bond shall be delivered to the Town Supervisor. 6 d. Except during the pendency of a Dispute, the Town shall be authorized to demand payment from and against any Bond to recover any amounts due from the Compa ny for repairs of Damage to the roads or bridges caused by Road Use Activities or Construction Activities . Upon receipt of the monies the Town will proceed with completing the required repairs. If following this demand from the Town the Issuer of the Bond refuses to honor any obligations to the Town, the Town shall notify the Company in writing of such refusal, and the Company shall cease all operations until such time as it has complied and cured any default or the Issuer has paid and honored all payment obligations. Nothing in this subparagraph will prevent the Town from proceeding by way of civil action to obtain compliance and abate the default. e. In the event the Bond contains a stated termination date, then Company shall renew or obtain a new Bond in the agreed upon amount no later than thirty (30) days prior to the stated termination date. It is the intention of the parties that the Bond for the stated amount remain in effect throughout the term of this agreement. In addition, should Company convey any or all of its interest in this agreement, then the new owner will obtain a Bond to comply with this agreement. f. The cancellation of any Bond will not release Company from its obligation to meet all the requirements of this Agreement. 10. INDEMNIFICATION AND INSURANCE. a. Company promises, represents, and warrants that it will maintain insurance in accordance with the following requirements for the entire time this Agreement remains in effect, or that Company has work, vehicles, tools, equipment, materials, contractors, or others at or upon any worksite for the Project (including roadway sites), whichever is longest (the “Term”). All references to “Company” herein are intended to include Company and all of its subcontractors, which shall each also meet these insurance requirements set forth in sections 10.b.4, subsections i, ii, iii, and iv only. Company shall ensure that clauses requiring such insurance are a material part of all subcontracting agreements. b. Company shall, at its own expense, maintain at all times during the Term the following identified insurance coverages, each to be written by insurers with AM Best’s Ratings of A or higher in good standing and qualified to do business in New York State , and each in compliance with the following conditions and requirements : 1. Notwithstanding any terms, conditions or provisions in any other writing between the Parties, the Company hereby agrees to effectuate the naming of the municipality as an additional insured on the Company's insurance policies, with the exception of workers' compensation. 2. The policy naming the municipality as an additional insured shall: (i) be an insurance policy from an A.M. Best rated "secure" or better New York State authorized insurer; (ii) state that the organization's coverage shall be primary coverage for the Town, its Board, employees and volunteers; and (iii) list the Town as an additional insured by using endorsement CG 2010 or broader . The certificate must state that this endorsement is being used, and if another endorsement is used a copy shall be included with the certificate of insurance. 3. The Company agrees to indemnify the municipality for any applicable deductibles related to claims made in connection with this Agreement. 4. The Company shall procure and always provide the following minimum policies and coverages during the term of this Agreement: i. Commercial General Liability Insurance - 1,000,000 per occurrence/$2,000,000 general and products/ completed operations aggregates. The general aggregate shall apply on a per -project basis. ii. Automobile Liability - $1,000,000 Combined single limit for owned, hired and borrowed and non- owned motor vehicles. 7 iii. Workers' Compensation - Statutory Workers' Compensation & Employers' Liability Insurance for all employees. iv. Owners Contractors Protective Insurance (Required for construction projects in excess of $200,000) - $1,000,000 per occurrence/$2,000,000 aggregate, with the Town named as the additional insured. v. Excess Liability - $2,000,000 per occurrence/$2,000,000 aggregate, with the municipality named as the additional insured. vi. Bid, Performance and Labor & Material Bonds - If required in the specifications, these bonds shall be provided by a New York State admitted surety company, in good standing. 5. The insurance producer must indicate whether or not they are an agent for the companies providing the coverage. 6. Company acknowledges that failure to obtain such insurance constitutes a material breach of contract and subjects it to liability for damages, indemnification, and all other legal remedies available to the Town. Company is to provide the Town with a certificate of insurance, evidencing that the above requirements have been met, prior to the commencement of work. 7. The Town is a member/owner of the NY Municipal Insurance Reciprocal (NYMIR). The Company further acknowledges that the procurement of such insurance as required herein is intended to benefit not only the Town, but also the NYMIR, as the municipality's insurer. c. To the greatest extent permitted by law, Company agrees to at all times defend, indemnify, protect, save, hold harmless, and exempt the Town and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, any and all claims ari sing out of this Agreement. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees and expert witness fees are included in those costs that are recoverable by the Town. d. Except in the case of the Town’s negligence where such negligence is a primary causative factor for the applicable loss or liability, Company acknowledges that the Town shall not be liable to Company for any loss, damage, or expense of any kind or nature caused, directly or indirectly, by the failure of any Road, bridge, or highway appurtenance, or the failure or operation thereof, or the repair, service or adjustment thereof, or by any delay in or failure of any such maintenance, repairs, service or adjust ment, or by any interruption of service maintenance or the loss of use thereof, or for any loss of business or profits, howsoever caused. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR OTHERWISE ARISING BY LAW, THE TOWN SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO COMPANY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSSES OF PROFITS, LOSSES OF THE BENEFITS OF USE, OR LOSSES OF BUSINESS, EVEN IF TOWN IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES, AND EVEN IF SUCH DAMAGE OR LOSS WAS FORSEEABLE. It is expressly understood and agreed that each a nd every provision of this Agreement that provides for a limitation of liability, a disclaimer of warranties, or an exclusion of damages, is intended by the parties to be severable from any other provision, and is a separable and independent element of risk allocation, and is intended to be enforced as such. 11. NOTICE. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (1) upon hand delivery, or (2) upon the third day following mailing via the U.S. Postal Service, or (3) on the first day following mailing via a nationally recognized United States overnight courier service, or (4) on the day when sent by electronic mail or facsimile transmission if additional notice is also given under (1), (2), o r (3) above within three (3) business days thereafter. For purposes of this Agreement, any notice to the Parties shall be directed to the Party at their address as set forth above. 8 12. CAPTIONS AND HEADINGS; CONSTRUCTION. Captions and headings throughout this Agreement are for convenience and reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of any provision or of the scope or intent of this Agreement, nor in any way affect this Agreement. Whenever the singular or male context of a word is used, such term shall apply in the plural, female, or neuter context as common usage and the context thereof may so admit or require. No rule or term of construction or interpretation as applies any ambiguity against the drafter of the clause or agreement shall be permissible or relevant to the meaning hereof, and the Parties agree that for all purposes this Agreement shall be and be deemed jointly drafted and negotiated. 13. SEVERABILITY; NO WAIVER; MODIFICATIONS. If any provision of this Agreement, or any portion of any provision of this Agreement, is declared null and void, such provision or such portion of a provision shall be considered separate and apart from the remainder of this Agreement, which shall remain in full force and effect. The waiver by any party hereto of a breach or violation of any term or provision of this agreement shall not operate or be construed as a waiver of any subsequent breach or violation. This Agreement cannot be changed orally, but only by an agreement in writing duly signed by the Party against whom enforcement of the change or modification or discharge is sought or charged. 14. GOVERNING LAW; BINDING EFFECT. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to or the application of New York State’s conflicts of law provisions. This Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and assigns. 15. ASSIGNMENT; AGENCY; ENTIRE AGREEMENT. The rights of either Party under this Agreement may be assigned or conveyed in whole or in part from time to time with prior written consent of the other Part y, which consent shall not be unreasonably delayed, conditioned or withheld. All assignments and conveyances shall be subject to this Agreement. No Party is an agent of any other Party, and neither Party shall be able to bind the other Party to performance without such Party’s consent or an appropriate order of a court or other applicable tribunal. The entire agreement of the Parties is contained in this Agreement. No promises, inducements or considerations have been offered or accepted except as herein set forth. This A greement supersedes any prior oral or written agreements, understandings, discussions, and negotiations, offers of judgment or statements concerning the subject matter thereof. The parties hereto agree to execute and deliver such other documents and to per form such other acts as may, from time to time, be reasonably required to give full force and effect to the intent and purpose of this agreement. 16. COUNTERPARTS; AUTHORITY OF PARTIES. This Agreement may be entered in counterparts, each of which will be considered an original, and all of said counterparts shall together constitute one and the same instrument which may be sufficiently evidenced by one counterpart. The individuals who have executed this Agreement on behalf of the respective parties expressly represent and warrant that they are authorized to sign on behalf of such entities for the purpose of duly binding such entities to this Agreement. The individuals who have executed this Agreement shall provide proof of said authorization from their respective governing boards or bodies to all other Parties. 17. EXECUTORY CLAUSE. In accordance with § 41 of the State Finance Law and like provisions of the Local Finance Law, and other laws affecting municipal obligations under law, the obligations of the Town hereunder shall be executory to the extent of monies appropriated or available to the Town for the implementation of this Agreement, and no liability shall be incurred by such the Town beyond such monies appropriated or available. Neither the full faith and credit nor the taxing power of the Town is pledged to the payment of any amount due or to become due under this Agreement. Neither this Agreement nor any representation by any of the Town’s public officers or employees creates any obligation by the legislative body of the Town to appropriate or make monies available for the purposes of this Agreement. 18. IDA-OFAC CLAUSE. As a result of the Iran Divestment Act of 2012 (the “Act”), Chapter 1 of the 2012 Laws of New York, codified in part at State Finance Law §165 -a, the State of New York and the Commissioner of the Office of General Services (“OGS”) post and maintain lists of persons and entities engaged in defined investment activitie s in Iran (the “Prohibited Entities List”), and Company, by signing this Agreement, certifies that Company will not utilize any subcontractor, person, or entity that is identified on the Prohibited Entities List, and that Company will not sublease or assign any rights or obligations herein to any person or entity on the Prohibited Entities List. During the term of the Agreement should the Town receive information that any violation of the Act has occurred, this Agreement shall 9 automatically terminate and be cancelled, without right of claim or recourse by Company, and Town may make claim for any cost or loss it incurs arising from any effort to defend against sanctions or to confirm compliance with the Act. These representations and warranties shall also apply to federal law, rules and relations relating to (i) all trade embargoes and prohibitions imposed by the U.S.; (ii) the International Emergency Economic Powers Enhancement Act of 2007; (iii) the Trading with the Enemies Act; (iv) the Foreign Narcotics Ki ngpin Designation Act; (iv) Executive Order 13224, entitled “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,” and related subsequent Executive Orders prohibiting trade or commerce with certain persons or entities; (v) and any rules of the US Department of the Treasury and OFAC that prohibit transactions with persons, entities, countries, governments, governmental agencies, and NGOs listed in any Executive Order, upon the Controlled Countries List, or the Specially Designated Nationals Lists, or which pertain to any prohibition in trade or commerce in relation to certain designated goods or conflict minerals. 19. TIME OF ESSENCE. Performance by Company under this Agreement is and shall be dee med to be subject to the time of the essence rule at all times. IN WITNESS WHEREOF, Company and the Town have caused their respective, duly authorized officers to ex ecute this Agreement as of the day and year first above written. EDUCATION REALTY TRUST, INC., d/b/a EdR Trust Collegiate Housing By: ______________________________ Title: ______________________________ TOWN OF ITHACA By: ______________________________ Title: ______________________________ 10 EXHIBIT A TRAFFIC ROUTE 2017 CIP Staffing Discussion  Plans and specification modifications for Sapsucker and Christopher Watermain projects have been completed.  Dan and Jim will focus on the administration approvals (Planning, Codes and Comptroller) for Maplewood. Expect to be completed by May or early June  Dan will continue to provide Engineering support to Maplewood as they move through the planning process. At this time no detailed plans have been submitted for the development, therefore there is still a considerable amount of staff time and effort required to be ready to construct.  With all of Dan’s time dedicated to Maplewood, all remaining Planning and codes reviews will be handled by David, thus eliminating his time for project design  Sam and Taran will be providing DSNY support (over 1 week/month) and PW maintenance support ( see job task memo) until the water projects begin then they will be providing inspection services until the projects are complete (Sept/Oct)  New requirements from DEC relative to the MS4 Stormwater permit will require implementation. The stormwater manager, Dan, will be responsible for this work with support from potential summer interns  There are a number of unknowns at this time relative to any potential development that could begin construction this summer, Holochuck, Amabel, Larissa Lane, hotel on rte 13, gateway trail and any cooridination with City projects which will require PW staff support.  Therefore PW is not in a position to be able to complete the CIP projects that have been identified within the approved Town of Ithaca 2017 Budget ELLIS HOLLOW WATER TANK AND WATER MAIN IMPROVEMENTS Water Tank Schedule July 2018 Certificate of Occupancy needed June 18, 2018 Two weeks clear time for last minute items June 11, 2018 Mixer installation, Health Dept. authorization approval, disinfection and VOC testing (1 week) June 4, 2018 Fill tank (1 week) May 7, 2018 Erection of tank and curing of joint compound (weather concerns) (4 weeks/holidays) April 30, 2018 Material delivery (1 week) Site shutdown for Winter December 1, 2017 Tank site preparation and construction (fencing, grading, sloping, stabilization) November 15, 2017 Pour and cure tank floor (2 weeks) October 18, 2017 Preparation to form, pour, cure, and prep foundation (3-4 weeks) October 6, 2017 Under slab piping and site piping testing and disinfection (1.5 weeks) September 15, 2017 Under slab piping and site piping installation (2-3 weeks) September 9, 2017 Install catch basin, control pit, and drainage for tank overflow (1 week) August 28, 2017 Retaining wall/slope stabilization (1.5 weeks) August 28,2017 Control pit electrical – work with NYSEG and Bolton Point (1 week) Can be combined with other site operation August 7, 2017 Mobilization, material certs and reviews (2-3 weeks) Notice to Proceed July 24, 2017 Contract paperwork, insurance, bid review and contract signatures (2 weeks) June 26, 2017 Advertise (3-4 weeks) June 12, 2017 Plan reviews, Health Department approvals (2 weeks) April 17, 2017 Survey, design (prelim & final), prep construction documents (8 weeks) January 2, 2017 Site plan, variance, Comptroller’s approval (15 weeks) Water Main Schedule July 2018 Online and approved June 11, 2018 As-built approvals, Health Department approval, retesting of disinfection/flushing (3 weeks) May 7, 2018 Punch list, final work at control building (4-5 weeks) Site restoration, clean-up, sign off from Tompkins County for work on and across Ellis Hollow Road Site shutdown for Winter November 1, 2017 Pressure testing, disinfection, flushing October 14, 2017 Line charging, site clean-up, and E&S work for winter shutdown (3 weeks) May 10, 2017 Main installation and contract work (4-5 months) Notice to Proceed April 12, 2017 Material certifications, contract document signatures, insurance submittals (3-4 weeks) Health Department approval December 21, 2016 Survey, design, administration approvals (4 months) (Survey cannot be complete with snow cover) November 23, 2016 Consultant selection and funding approval/project scoping (4 weeks)