HomeMy WebLinkAbout12-21-11 Special Common Council Meeting AgendaOFFICIAL NOTICE OF MEETING
A Special meeting of Common Council will b on Wednesday, December 21, 2011
at 7:00 p.m. in Common Council Chambers, City Hall, 108 East Green Street, Ithaca.
Your attendance is requested
AGENDA
1. SPECIAL ORDER OF BUSINESS:
1.1 A Public Hearing to Consider the Proposed Amendment to Purchase and Sale
Contract for Parcel 'D' of the Cayuga Green Project.
1.2 Cayuga Green Project, Approval of 3rd Amendment to Purchase and Sale
Contract for Parcel 'D' - Resolution
2. INDIVIDUAL MEMBER FILED RESOLUTIONS:
2.1 Alderperson Rosario - Resolution to Submit Comments to the NYS Department
of Environmental Conservation on the Revised Draft Supplemental Generic
Environmental Impact Statement (sGEIS) on Oil, Gas and Solution Mining
Regulatory Program".
3. NEW BUSINESS:
3.1 Cayuga Garage - Request that Community Development Properties, Ithaca, Inc.
enter into Parking Agreement with Cornell University — Resolution
(Amended Office Parking Agreement to be distributed under separate cover)
4. ADJOURNMENT
If you have a disability that will require special arrangements to be made in order for you
to fully participate in the meeting, please contact the City Clerk at 274-6570 at least 48
hours before the meeting.
R\
J ' ie Conley Holcomb
City Clerk
Dated: December 15, 2011
1. SPECIAL ORDER OF BUSINESS:
1.2 Cayuga Green Project Approval of 3rd Amendment to Purchase and Sale
Contract for Parcel '13' - Resolution
WHEREAS, Cayuga Green 11 LLC, has submitted revised, preliminary plans for
construction of a 6-story, 35-unit rental housing project with ground floor commercial
use at parcel U (tax map parcel #81.-2-4), located adjacent to the Cayuga Garage, that
are consistent with the original design goals for the Cayuga Green project, and
WHEREAS, the Purchase and Sale Contract between the IURA and Cayuga Green 11,
LLC obligates the purchaser to undertake a project "anticipated to consist of
construction of no less than 30 rental and/or for-sale housing units located adjacent to
the Cayuga garage, or such other uses approved by Seller and the Common
Council of the City of Ithaca" (emphasis added, and
WHEREAS, the City Attorney has determined that the proposed inclusion of ground
floor commercial use into the housing project requires Common Council approval to
comply with the terms of the Purchase and Sale Contract, and
WHEREAS, per correspondence dated November 7, 2011, Cayuga Green 11, LLC,
requests approval to authorize inclusion of a commercial ground floor use with the
proposed housing project and a 180-day extension of the purchase and sale contract to
June 30, 2012, and
WHEREAS, the existing Purchase and Sale Contract requires the purchaser to satisfy
the following contingencies prior to December 31, 2011:
1. Submit proof of final site development plan approval;
2. Submit proof of issuance of a building permit for the project;
3. Submit proof that all project financing has been secured to complete the project,
and
WHEREAS, the City previously amended the original Purchase and Sale Contract in
2009 to allow construction of rental housing units as well as for-sale housing units and
to extend the term of the agreement by 12 months to June 30, 2010, and approved a
second amendment in 2010 to modify the parcel boundaries to satisfy building code-
required building separation distances and extend the term of the agreement to
December 31, 2011 to allow the purchaser to pursue project financing through the HUD
221(d) Insured Mortgage Financing program, and
WHEREAS, the principals of Cayuga Green 11, LLC, have utilized the U.S. Department
of Housing &Urban Development's (HUD's) 221(d)4 mortgage insurance program to
secure financing from a HUD-approved private lender for a multi-family rental housing
project in Ohio, but find the New York State process much more extensive and lengthy
because their project would be the first HUD 221(d) project in the Ithaca housing
market, and
WHEREAS, the purchaser is continuing to complete the HUD 221(d) process but is
uncertain that a written loan commitment will be received by December 31, 2011, and
WHEREAS, the purchaser is additionally seeking conventional financing from private
lenders now that lenders are re-entering the rental housing financing market and an
independent downtown Ithaca housing demand study suggests there is a robust
demand for downtown housing at all price points, and
WHEREAS, Cayuga Green 11, LLC, seeks no property tax abatements for this market-
rate project, and
WHEREAS, the City wishes to facilitate the construction of additional housing units in
downtown Ithaca that will expand the range of housing opportunities and increase the
property tax base; and
WHEREAS, under §507 of Article 15 of General Municipal Law, the Ithaca Urban
Renewal Agency's proposed disposition of real property requires Common Council
approval following a public hearing, and
WHEREAS, a public hearing on the proposed amendment to the Purchase and Sale
Agreement is scheduled before the Common Council on December 21, 2011, and
WHEREAS, the purchase and sale contract for parcel 'D' and site plan review for a
proposed 7-story housing project at parcel 'D' were the subject of environmental
reviews under the City Environmental Quality Review Ordinance (CEQRO) pursuant to
which the lead agency issued a negative declaration that the implementation of the
action as proposed will not result in any significant adverse environmental impacts, and
WHEREAS, the revised 6-story project with ground floor commercial use and the action
of approving the proposed 3rd amendment to the Purchase and Sale Contract for parcel
`D' are no less protective of the environment than the previously- approved Contract and
site plan, therefore requiring no additional environmental review; now, therefore, be it
RESOLVED, That the City of Ithaca Common Council hereby approves a 3rd
amendment to the Purchase and Sale Contract with Cayuga Green 11 LLC for Parcel 'D'
(tax map parcel #81.-2-4) to:
1. authorize inclusion of a ground floor commercial use in addition to construction of
at least 30 rental and/or for-sale housing units on Parcel 'D' of the Cayuga Green
project, and
2. Extend the purchaser's deadlines to secure final site plan approval, project
financing and issuance of a building permit to June 30, 2012.
CAY*',,JG.A Gil EEN.,*.
660 LINC. OLN AV.ENU8,. S. T -.303.
CINCINNAT4OH-10.4.5206
(51-3) 2-41-6363 FAX. (5-13).241-6.636
November 7, 2011
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Thank. you for y-O' ur consideration,
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2/1/11
PURCHASE AND SALE CONTRACT
Second Amendment: 2011
CAYUGA GREEN PROJECT PHASE 11B
PARCEL "D"
This A.greement is entered into by and between
The ITHACA URBAN RENEWAL AGENCY (hereafter "Seller" }, an urban renewal
offices at
agency created pursuant to the General Mur.�.cipal Law of the State of New York, with of
108 East Green Street, Ithaca, Neer York 14850, and CAYUGA GREEN 11, LLC (hereafter
"Purchaser"), a limited liability company formed pursuant to the laws of the State of New York
and with offices at 660 Lincoln Avenue, Suite 303, Cincinnati, Ohio, 45202, which LLC is a
wholly owned subsidiary of Steven F. Bloomfield Company, Inc., an Ohio Corporation with
offices at 660 Lincoln Avenue, Suite 303, Cincinnati, Ohio, 45202.
WHEREAS, the parties entered into a Purchase and Sale Agreement (hereinafter "the
Prior Agreement ") for the parcels of land described in Schedule A attached hereto (hereinafter
"the -Premises") on November 19, 2007, and the parties executed a first amendment of the
Purchase and Sale Contract on July 17, 2009 (hereafter the "first Amendment "' }; and
WHEREAS, the Purchaser requested a further extension of the time frame for satisfaction
of the contingencies set forth in the Prior Agreement and the First Amendment due to difficulty
in 9 10 1 �inanncing; and
securing project
WHEREAS, initial plans to build the project adjoining the Cayuga garage have been
modified to provide a 10-foot horizontal separation distance between the buildings, in order to
a *d the need for retrofits to the Cayuga Garage to 'meet new York State Building Code
vol
requirements regarding wall openings and fire egress routes at the Garage; and
WHEREAS, Cayuga Green 11, LLC bias submitted revised, preliminary plans for
construction of a 7-story, 39-unit rental housing project on parcel "D" that are consistent with the
original design goals for the Cayuga Green project*
P
WHEREA.S, the Purchaser's above-referenced request WaS approved by the IUR.A by
resolution adopted on September 23, 2010 and by the Common Council by resolution adopted
November 3, 2010;
NOW, THEREFORE, the parties, agree to modify the Prior Agreement and the First
V
Amendment and replace it with the terms set forth in this Agreement.
Y. AGREEMENT TO SELL AND PURCHASE. SELLER agrees to sell the Premises to
PURCHASER to undertake Phase 11B of the Cayuga Green P�aject, anticipated to consist
of construction of no less than 30 rental and/or for-sale housing units located adjacent to
the Cayuga garage (hereafter "the Rental HQUSing /Condvminium Project"), or such other
-uses approved by'Se11er and the Common Council of the City of Ithaca.
CC}NTIlNGEN CIES. This Agreement shall be subject to the following continaencies to
%1-1
ills
be met by PURCHASER: Na later than December 31, 2011, Purchaser shall submit the
following documentation pertaining to Phase 11B of the Cayuga Green project (hereafter
It
"the Rental Hc�using /Condominium Projeef'), P
antic' ated to consist of construction of no
less than thirty (30) rental and/or for-sale housing units located ad i acent to the Cayuga
Garage, or such other uses approved by Seller and the Common Council of the City of
Ithaca:
At Proof"
of final site development plan approval for the Project by the City of Ithaca
Planning and Development Board;
B. Proof of issuance of a building permit for the Project,, however, Purchaser may
extend the date to satisfy this contingency for an additional 120 days, provided
that Purchaser has obtam'ed fmal site development plan. approval for the Project;
C'* Proofthat all project financing has been secured to -complete the project.
At Purchaser shall have the right to construct entrances between the Rental.
io-usm*g/Condominium Project and the Cayuga garage (wbich right is also set
forth in the "Cayuga Green Lease Agreement, Parcel "A' Ground Floox of Cayuga
Garage" between the Ithaca Urban Renewal Agency and Cayuga Green, LLC,
dated February l., 2007 [subject to assignment of Cayuga Green, LLC's Tights and
responsibilities in this agreement to Purchaser] and in the Air Rights Lease. dated
December 1, 2003 between Seller and Community Development Properties
Ithaca, Inc. [CDP], as amended on January 1, 2007). This right shall be subject to
the follovhng . conditions:
1. Purchaser shall submit plans for installing any entrances to Seller.
2. Seller's written consent, which shall not be unreasonably withheld,
conditioned or delayed, and shall be contingent upon and subject to the
following conditions,
9 0
a, Receipt by Seller of an independent legal opinion in writing
confirming that such consent preserves the tax-exempt status of the
financing of the Cayuga Green I (garage) project. Purchaser shall
+ 41
pay -up to one-half the cost of obtaining such an opinion, but -not to
exceed $500.00;
b. Such entrances from the adjoining structure to the Garage shall not
in any way constitute required fire egress to comply with the New
York State Fire Prevention and Building Code, the City Code of
the City of Ithaca, or any other laws or regulations;
co Such entrances shall not imply or constitute any obligation on the
OJ
part of CDP, Seller, the City of Ithaca or any other party who has
an interest in the Garage to continue to provide such entrances and
access from the adjoining building to the Garage in the event the
Garage is wholly or partially demolished, under repair or
restoration, or no longer used as a parking garage for any reason;
d. Approval of the exact location of such entrances by CDP as set
forth in the Air Rights Lease, which approval shall not be
unreasonably withheld.
ng spaces obstructed by such
e. A monthly payment for any parking
connection, with the amount to be determined by CDP with
reference to reasonable p 'ected parking revenues for such
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parking spaces, as set form in the Air Rights Lease.,
B* If Purchaser does not obtain the consents referred to in paragraph III(A)(2) above,
Purchaser shall have the right to terminate this Agreement and Purchaser shall
have no liability to the Seller.
C. Parking in the Cayuga Garage will be made available to Purchaser puxsuant to the
terms of an Agency Agreement between Cayuga Green, LLB and CDP dated as of
January 1, 2i}07, subject to assignment of the rights and responsibilities ire such
contract by Cayuga Green, LLC to Purchaser,
D. Paragraph III of this Agreement entitled 'Parking"' shall survive the closing of this
transaction. The parties shall enter into an Agreement containing these
conditions, which shall be recorded concurrently with the deed.
IV. PARKING GARAGE. The recently constructed Gaxage was opened to the public in June
2005. The tenn of the Air Rights Lease between Seller and CDP, owner of the Garage,
extends through November 3(}, 2043. IURA has no current plans to discontinue use of
the parking garage after expiration of the Air Rights Lease. The Garage was designed for
a minimum 50-year design life with proper maintenance and repair. The Indenture of
Trust governing bonds issued to finance construction of the Garage mandates
establishment of a Long-Term Maintenance Fund to be maintained at $500,000 and held
by the Trustee throughout the life of the bonds scheduled to mature in 2030.
V. TIME OF THE ESSENCE. Seller and Purchaser mutually agree that time 'I's of the
a
essence as regards this Agreement. In the event that any of the contingencies set forth
herein are not satisfied within the prescribed time period, this Agreement shall be null
and void uriless Seller extends or waives in writing any unsatisfied Seller contingency or
Purchaser extends or waives in writing any unsatisfied Purchaser contingency,
V1. NC} ABATEMENTS. Purchaser hereby agrees that it will not seek tax abatements of real
property taxes fcir this project through the Tompkins County Industrial Development
A.gency. Conewently with the closing ot the conveyance cif the Premises to Purchaser,
I
Purchaser shall enter into a payment in lieu of tax ("PILOT") agreement with Seller
which provides that, in the event that all or part of the premises become tax exempt in the
4t3 -year periad from the date of the closing for any reason other than as a result of Empire
Zone (or successor zone) tax abatements, Purchaser shall make payments in lieu of
property taxes ("PILOT" payments) to all taxing Jurisdictions in the same amount as the
property taxes that would have been payable if the property had not become fax exempt,
and the amount paid will increase each year M* the same manner and propoxlion as if the
premises were taxable. This provision shall apply to all successors and assigns of
Purchaser, who shall be required to enter into a PILOT Agreement with the same tenns as
set forth above, with the following exception: A natural person or persons who purchase
two (2) OT fewer condominiums or cooperative apartments on the Premises shall not be
obligated to enter into a PILOT Agreement or make PILOT payments; such obligation
shall arise upon the purchase of a third condominium or cooperative apartment by such
natural person at any time, The PILOT agreement referred to herein shall be recorded
concurrently With the Deed.
V11. PURCHASE PRICE: The purchase price shall be $280,000.00, payable as follows:
A. Purchaser shall pay the sum of $20,000-00 M* certified U.S. funds at the time of
closing.
B* Purchaser shall deliver to Seller, at closing, an executed promissory note and a
mortgage(s) for the unpaid portion of the purchase Price in a form acceptable to
Seller. For the first twelve months after closing, interest shall accrue on the full
outstanding balance at a rate of 5.5% per annum and be paid, monthly. At the end
of the twelve-month period, the principal balance shall be amortized over a period
of rdne years at an interest rate of 5.5 °/a per annum. Additional principal
payments equal to one twentieth (1/20) of the original loan amount shall be paid
to Seller at the closing for any for-sale housing unit in consideration for releasing
such housi�g unit from the mortgage. Purchaser shall pay all mortgage taxes..
C. Seller agrees to subordinate its mortgage lien position to the Project's primary
lender(s), which shall be defined as any lender making a construction/permanent
loan with an initial principal balance exceeding $260,000, except that such
subordination shall not apply to any loan franc. individual members of Purchaser
or any lender for which 15% or more of the lender's stock is owned by Purchaser
or a member of Purchaser.
required to furnish a warranty deed with lien covenant
VIM DOCUMENTS: Seller is re *
containing a description of the premises to be conveyed to Purchaser as shall be accepted
and approved by Purchaser's attorney; tax searches; an instnment survey dated no less
than six months prior to the closing; an abstract of title searched by a reputable title
company at least forty years back to a warranty deed, all to the time of closing, all
showing good and marketable title, free and clear of all liens and encumbrances, except
customary utility" easements common to similar properties and other easements of record
acceptable to Purchaser. Seller shall cause all required searches, documents and
certifications herein to be delivered to Purchaser's attorney at least fifteen (1 5) days prior
to closing*
Purchaser shall pay all closing costs (regardless of whether such costs are customarily
paid by the seller), including, but not limited to, abstract fees, survey costs, recording
fees, transfer tax, mortgage tax:, fees for tax and other searches and certificates and
Seller's legal fees,
IX -. - ENVIRONMENTAL LIABILITY:
A. It is hereby acknowledged by the parties that Seller has provided to Purchaser the
Phase I Environmental Site Assessment prepared by the Chazen Companies,
dated October 2002, and the Phase 11 Environmental Site Assessment prepared by
The Chazen Companies, dated January 2003, which identify known or potential
areas of contamination below an excavation depth of twelve feet below grade,
B. The parties anticipate that, if there is no excavation deeper than eight feet below
grade, the risk of uncovering or disturbing any potential environmental
0
containi I nants is m*Wmal.
C. Purchaser agrees to make best efforts to avoid any known contamination by
designing the foundation of any structures on the Premises to avoid known areas
of possible contamination and further agrees to reasonably attempt to avoid any
enviromnental hot spots or contamination in the course of construction, Purchaser
agrees to limit its construction on the Premises to a depth of no more than eight
feet below grade, with the exception of piles which may be driven below eight
feet (without excavation at depths greater than eight feet).
D. Provided that Purchaser complies with the provisions of paragraph IX C above,
I,
and in- the event that subsurface environmental contamination pre - existing the
conveyance to Purcbaser is discovered in the course of Purchaser's construction
of buildings on the Premises i-n the areas of petroleum impact to, or contamination
of, groundwater identified ire the Environmental Site Assessments referred to in
paragraph IX A above, and friher testing is required, Seller hereby agrees to
is 0 n of such
y required testing and remecilatio
reimbu�se Purchaser for the cost of an
envitvnrnental contamination, up to the amount of Fifty Thousand Dollars
($50,000.00), Puxchaser shall supply reasonable documentation from qualified
professionals showing the necessity, extent and cost of testing and remediation.
This provision shall survive the closm'g.
X. ADNS TMENTS: All taxes and assessments are to be adjusted as of the date of closi
ng
All assessments levied prior to the date of clos* Mg shall be paid by Seller at or prior to
closing.
XI* INSPECTION AND ACCESS T(7 PREMISES. Purchaser and its agents and
representatives shall have the fight of inspection of the Premises pursuant to this
61
Agreement upon reasonable notice.
XH. EXECUTION OF AGREEMENT: This offer to Seller contained herein shall be null and
void if this Agreement is not executed by Purchaser and remitted to Seller within 30 days
of execution by Seller.
XEI. CLOSING: Closing shall not take place until all Contingencies have been satisfied.
Closing is to take place at the office of the Ithaca Urban Renewal Agency no later than
February 28, 20120
XIV. ASSIGNMENT,: Except as expressly permuted below, Purchaser shall not assign or
otherwise transfer this Agreement or any part thereof or interest therein, or permit the
same to be assigned or otherwise transferred. Seller acknowledges and agrees that
Purchaser will assign this Agreement to an entity to be farnned having the same principals
as Cayuga Green 11, LLC, upon submission to Seller of the following information:
A. The name and address of the assignee.,, its certificate of 'incorporation and by-laws
jf a corporation, or its articles of incorporation and operating agreement if a
limited. liability company.
B. Identification of the assignee's Board of Directors, if any, Managing Member if
any, and all persons or entities with 15 °,/0 or more ownership interest in the
assignee.
XV. BINDING EFFECT OF AGREEMENT: This agreement shall be binding upon the heirs,
executors, administrators, and assigns of the parties hereto.
PURCHASER:
CAYUGA GREEN II, LLC
By: BlaamfieldlSchon + Partners, LLC,
Member
Dated: By: -------
lame,
Title: Managing Member,
Bloomfield/Schon + Partners, LLC
SELLER:
ITHACA URBAN RENEWAL AGENCY
Dated. 10 1. L-7 - 11 By: /, t��r�..•
N e: Carolyn K1'eterson
Title: chairperson
6
SCHEDULE A
The below-described premises are designated as "Parcel D" in conformation with a
survey map entitled "Boundary Map Showing Property Bounded North by East Green Street,
South by East Clinton Street, West by South Cayuga Street and Southeast by Six Mile Creek,
Designated for a Proposed Project 'Cayuga Green at Six Mile Creek', City of Ithaca, Tompkins
County, New York," dated November 20, 2003 and revised on December 5, 2005, January 2,
2007,,'October 18, 2007 November 24, 2009 and January 22, 2010,1abeied as j ob number S02 530!� prepared by T.G. Miller, P.C., Engineers and Surveyors. Said map hereinaiter referred to
as "the Survey Map."
PARCEL D
BEGINNING at a point which is the following bearing and distances from. the
intearsection af the east line of South Cayuga Street and the north line of East Clinton Street;
thence north 87 degrees 35 minutes 39 seconds east a distance of 126,65 feet to a point,
thence north 87 degrees 35 minutes 39 seconds east a distance of 13.56 feet to a point;
flience on a curve to the right, with a chord bearing of north 9 degrees 19 minutes 43
seconds east, a chord distance of 68.15 feet, a radius of 464.26 feet and an are distance of 68.22
to the POINT OF BEGINNING;
Thence South 87 degrees 20 minutes S 1 seconds West a distance of 22.65 feet to a point;
thence North 02 degrees 27 minutes 06 seconds West a distance of 207.08 feet to a poini;
thence South $7' degrees 32 minutes 54 seconds West a distance of 5.08 feet to a point;
thence North 02 degrees 30 minutes 08 seconds West a distance of 26.93 feet to a point;
thence North 87 degrees 35 minutes 39 seconds East a distance of 185.11 feet to a point;
to 6 ft
thence South 48 degrees 20 minutes 47 seconds West, a distance ot 28.36 to a point;
said curve having a chord bearing of South 41 degrees 07
thence on a curve to the left, s
minutes 00 seconds West, -a chord distance of 78.19 f eet, a radius of 344.16 feet and an arc
distance of 78.36 feet, to a point;
thence on a curve to the left, said curve having a chord bearing of South 24 degrees 38
minutes 47 seconds West, a chord distance of 178.90 feet, a radius of 464.26 feet and an arc
distance ofl 80.02 feet, to the point and place of beginning, containing 0.449 acres of land.
SUBJECT to the following:
h
0,
14 Restrictive covenants nming wiffi the land, contained gin. a Deed from the Ithaca Urban
Renewal Agency to the City of Ithaca dated July 13, 79' 6 and recorded in said Clerk's
Office on July 13, 1977 in Libor 558 of Deeds at page 6729
24 Restrictive covenants running with the land, contam*ed m' a Deed from the Ithaca Urban
Renewal Agency to the City of Iffiaca dated July 13, 1977 and recorded in said Clerk's
Office on July 13, 197'7 in Lzber 558 of Deeds at page 684.
30 served to the City of Ithaca to enter upon lands contained within the
A right of way re
boundary lines of Six Mile Creek to make excavations, remove gravel and other material
from the creek bed, erect walls and embankments, etc., as granted by instrument of Salem
Twist, et. al. dated August 8, 1906 and recorded in the Tompkins County Clerk's Office
on January 31, 1907 in Liber 166 of Deeds at page 163.
4. A right of way to the Grantor and the City of Ithaca across Parcel B and the 8 foot wide
right of way along the northerly boundary of parcel D for access to Parcel C as shown on
the Survey Map.
5. Aright of way to the Grantor, its successors and assigns across Parcel B and the 8 foot
wide right of way along the -northerly boundary of Parcel D for access to Parcel E as
shown on the Survey Map.
6, An easement to the City of Ithaca to maintain underground electric lines and conduits and
an -underground transformer for the benefit of Parcel A and Parcel C, along with the right
to enter the Premises to maintain such Iffies and conduits. The location of the Tines,
conduits and transformer are shown on Sheet E-2 of the Construction Drawings for the
Cayuga Garage, dated May 2, 2003. The drawings show the transformer as above
ground, but it was instaJl.ed underground.
7. A.n easement to the City of Ithaca to maintain the existing telecommunications conduit
4
and telecommumeations line in the conduit within the above-referenced eight foot right
of way, for the benefit of the City and Parcel A, along wiffi the right to enter the Premises
to maintain such conduit and cable.
8* Right of way for 'ingress and egress conveyed by instrument by and between the Ithaca
Urban Renewal Agency and D.M. Abbot Investors Corporation dated May 17, 1967 and
recorded in sm'd Clerk's Office in Libor 469 of Deeds at page 25.
9" A temporary construction and access easement gran ted to Community Development
Properties Ithaca, Inc. by instrument of Ithaca Urban Renewal Agency, dated of even date
herewith, until June 1, 2005 or until completion of construction of a parking garage on
the Premises shown as "Parcel A" on the Survey Map, whichever date is sooner, for
staging of construction equipment and supplies and access to and from said Parcel A.
TOGETHER WITH:
R�
1. ,A right of way for ingress and egress conveyed by 'instrument by and between D.M.
Abbott Investors Corp. and the Ithaca Urban Renewal Agency dated November 24, 1967
and recorded in said Clerk's Office on January 21, 1969 in Libor X7'9 of Deeds at page
640.
2., An easement in common with others over the premises Shawn as "Parcel B" on the
Survey Map for ingress from and egress to South Cayuga. Street.
TOGETHER WITH AND SUBJECT TO THE FOLLOWING:
1, An Easement over an area referred to on the Survey Map as "A proposed easement for
continued placement of the foundation caps of the garage, maintenance of the garage and its
foundation caps and ingress and egress to maintain the garage and its foundation caps, to benefit
the ovvn.ers and tenants of Parcel A and the air rights above Parcel A,"
2. An easement over the area on the Survey Map labeled "A proposed easement for
construction, ingress, egress and use to benefit Parcel D ".
3. These easements shall be subject to the following conditions (The easement area referred to in
paragrapb 1 above, together with that portion of the easement referred to in paragraph 2 above
which extends between the garage building on Parcel ill, and the proposed building an Parcel B
are collectively referred to herein as "the Easement Area "):
a, Pumbaser shall be responsible for maintenance, repair, and safeguarding of the
Easement Area against unauthorized access and trespass. Purchaser shall install gates from the - -
narth and south ends of the building to be constructed on Parcel D to the easterly wall of the
Cayuga Garage. The Easement ATea will be subject to the easements referred to in this
Schedule A.
-2 b. Purchaser shall maintain the Easement Area in ccrnfannan+ce with the conditions of site
plan development approval.
C. Purchaser may install utilities and recycling containers in the Easement A:rea, subject to
the easements referred to in this Schedule A.
d. Upon Purchaser's failure to meet the requirements of paragraphs (a) and (b) above, the
IURA may fence off and safeguard. the Easement Area. Purchaser may bave access to and use
the Fenced Area for egress only in compliance with the New York State Building C but shall
not be entitled to use the area for any aver purpose.
j-1stafflne1sN ura \citylcayuga gr nlphase. jAproperty dispositli onsNparce1 dNcaygmsaleagr =parcel d 2011 revision 2-1-1 Ldoc
0
Green Camutna P Approval of 2"" Extension of Purchase and Sale Contract
for Parcel V --*Resolution
By Alderperson Dotson: Seconded by Alderperson McCollister
WHEREAS, Cayuga Green 11, LLC, has requested an 18-month extension of the
purchase and sale contract for parcel V (tax parcel #810-2-4) -the site of its proposed
rental housing project to be located adjacent to the Cayuga Street Parking Garage -in
order to provide time to secure project financing through the HUD 221 (d)4 Insured
Mbrtgage Financing program, and
WHEREAS, the Ithaca Urban Renewal Agency (IURAj and the City previously amended
the original, 20017 purchase and sale contract, in 2009, to allow construction of either
rental housing units or for-sale units and to extend the term by 12 months, to June 30,
2010, in response to the developer's difficulty in securing project financing for residential
condominiums, and
WHEREAS, the commercial credit market for loans to construct new mid-rise housing
has been extremely tight for several years and remains extremely limited, and
WHEREAS, the principals of Cayuga Green 11, LLB, have recently utilized the U.S.
Department of Housing &Urban Development's (HUD's) 221(d)4 mortgage insurance
program to secure financing from a HUD-approved private lender for a multi-family
rental housing project in Ohio, and
WHEREAS, through the HUD 221 (d)4 program, the Federal Home Administration
provides mortgage insurance to HUD-approved lenders of funds to for-profit or not-for-
profit borrowers that are developing multi-family renta) housing, and
If
WHEREAS, the HUD 221 (d)4 program requires federal prevailing wages to be paid on
all construction work associated with such loans, and
WHEREAS, a HUD 221 (d)4 review and approval process requires submission of
detailed construction plans and specifications, cost details, and a market study and
marketing plan, and takes 9 to 12 months to complete, if all information is in order, and
WHEREAS, a HUD 221(d)4 mortgage 'insurance application process requires
documentation OT Tee simple ownership or control of the project site, and
WHEREAS, Cayuga Green 11, LLC, has been pursuing HUD 221(d)4 approval for
several months and is awaft ing an invitation to submit a "firm commitment" application,
and
WHEREAS, initial plans to build the project adjoining the Cayuga Garage have been
modified so as to provide a 1 0-foot horizontal separation distance between the
buildings, in order to avoid the need for retrofits to the Cayuga Garage to meet New
York State Building Code requirements regarding wall openings and fire egress routes
at the Garage, and
WHEREAS, Cayuga Green 11, LLB, has submitted revised, preliminary plans for
construction of a 7-story, 39-unit rental housing project at parcel "D' that are consistent
with the original•design goals for the Cayuga Green project, and
WHEREAS, Cayuga Green 11, LLC, seeks no property tax abatements for this project,
and
WHEREAS, the Ithaca Urban Renewal Agency {IURA) wishes to facilitate the
construction of additional housing units in downtown Ithaca that will expand the range of
housing opportunities and increase the property tax base; and
WHEREAS, on September 23, 20101 the IURA approved the following amendments to
the purchase and sale contract for parcel'D' of the Cayuga Green project, subject to
City of Ithaca Common Council approval:
I. Extend the developer's deadlines to secure project financing and 'issuance
of a building permit to December 3'f, 2011;
2. Reduce the size of the parcel to be conveyed bjl approximately 2,000
square feet, in accordance with a lot adjustment plan shown on a "boundary map'i for
the premises prepared by T.G. Miller PC, as revised through January 22, 2010, for the
purpose of providing a 10'fire separation distance between buildings, thereby avoiding
the need for retrofits to the Cayuga Garage to meet NYS Building Code requirements;
and
WHEREAS, notwithstanding this reduction in the size of the property to be conveyed,
the proposed, amended purchase and sale agreement does not call for any
proportionate reduction in the purchase price, thus increasing the per-square-foot price,
which could be deemed to be consideration for the extension of time to complete the
purchase, and
WHEREAS, under §507 of Article 15 of General Municipal Law, the IURA's proposed
disposition of real property requires Common Council approval following a public
hearing, and
WHEREAS, a public hearing on the prcrpvsed property disposition was held before the
Planning & Economic Development Committee of the Common Council on October 20,
2010, and
WHEREAS, the purchase and sale contract for parcel V and site plan review for the
proposed housing project at parcel Vwere the subject of environmental reviews under
the City Environmental Quality Review Ordinance (CEQRC7) pursuant to which the lead
agency issued a negative declaration that the implementation of the action as proposed
will not result in any significant adverse environmental impacts, and
WHEREAS, the proposed, amended purchase and sale contract for parcel V and the
proposed re-design of. the building are no less protective of the environment than the
add 1.
previously- approv ed con tract and site plan) therefore requiring no itional
environmental review; now, therefore, be it
2. INDIVIDUAL MEMBER FILED RESOLUTIONS:
2.1 Alderperson Rosario - Resolution to Submit Comments to the NYS
Department of Environmental Conservation on the Revised Draft Supplemental
MMMMIrm
Generic Environmental Im pact Statement (sGEIS) on Oil, Gas and Solution Mining
Regulatory Program"
WHEREAS the New York State Department of Environmental Conservation (NYSDEC)
has issued a revised draft supplemental Generic Environmental Impact Statement
(sGEIS) on Oil, Gas, and Solution Mining in New York State; and
WHEREAS once the sGEIS is codified into regulations, municipalities will no longer
have a direct bearing on the regulation of drilling for natural gas using high volume
hydraulic fracturing, leaving municipalities with little recourse on the drilling process, nor
on the rate at which drilling occurs within their borders; and
WHEREAS municipalities will bear the burden of an inadequate sGEIS and regulations,
which in Pennsylvania and other states has led to detrimental changes in the character
of communities; huge increases in truck traffic; contamination of air and water
resources; pressure on municipal services such as emergency response, police,
hospitals, schools, jails, road maintenance, and municipal administration; and spoiling of
scenic and natural resources; and
WHEREAS the City of Ithaca is the center of Tompkins County in terms of population,
economics, and community, with a population exceeding 30,000, and is wholly located -_
above a portion of the Marcellus Shale formation, a low-permeability rock formation
estimated to contain reserves of natural gas; and
WHEREAS land-use planning in the City of Ithaca is guided by a set of Comprehensive
Plan documents, a Zoning Ordinance, and other planning and zoning tools; and
WHEREAS over many years and in debates about many planning and community
issues, City of Ithaca residents have overwhelmingly identified environmental protection
as an issue of great concern in land-use and growth management policies and actions,
both within the City's boundaries and in the surrounding area of Tompkins County,
which directly affect conditions in the City of Ithaca; and
WHEREAS the City of Ithaca has historically demonstrated and continues to support its
commitment to preserving the beauty, quality, use, and ecologic and environmental
integrity of all of its land, through establishment and passage of Code provisions
supporting City programs such as the Conversation Advisory Council, Parks
Commission, Natural Areas Commission, City Bicycle/Pedestrian Advisory Council,
Shade Tree Advisory Committee, and the City's urban forestry program; and
WHEREAS the City of Ithaca has long been concerned about the risks of hazardous
materials in passing through our community, addressing such local risks, for example,
over 30 years ago in Chapter 201 of the current Code of the City of Ithaca, entitled
"Hazardous or Radioactive Materials," enacted on March 5t ", 1980; and
WHEREAS City of Ithaca taxpayers have expended millions of dollars developing,
maintaining and protecting clean drinking water sources, and our community enjoys
water resources from three major bodies of water: Six Mile Creek, Fall Creek and
Cayuga- Lake, within the City of Ithaca, which supply three water treatment plants (for
the City of Ithaca on Six Mile Creek, for the Southern Cayuga Lake Intermunicipal Water
Commission on Cayuga Lake, and for Cornell University on Fall Creek) which together
are rated to supply water to over 90,000 people; and these water filtering and treatment
systems are not designed to remove the toxic waste nor hazardous chemicals used in
hydrofracking; and
WHEREAS, taxpayers in the City of Ithaca, with those from the Towns of Ithaca and
Dryden, have expended millions of dollars in an inter municipal effort realized in the
Ithaca Area Wastewater Treatment Plant to develop, maintain, and upgrade advanced
wastewater processing facilities including biological processes that are not designed to
%K41
treat fracturing fluid and wastewater from natural gas operations; and
WHEREAS the City of Ithaca is, by law, charged with protecting the health, safety and
welfare of the people of the City; and
WHEREAS the City of Ithaca intends to abide by its set of Comprehensive Plan
documents and Zoning Ordinance to provide a high quality of life for its residents and
the current revised sGEIS makes that goal unachievable; now therefore, be it
RESOLVED, That the City of Ithaca submits the attached comments to the NYSDEC on
the sGEIS; and be it further
RESOLVED, That this resolution and accompanying comments be sent by U.S. mail to
Governor Andrew Cuomo; NYSDEC Commissioner Joe Martens; NYS Senators
George Winner, James Seward, and Michael Nozzolio; State Assembly Speaker
Sheldon Silver; State Senate Majority Leader Dean G. Skelos; State Assemblywoman
Barbara Lifton; Chair of Senate Committee on Environmental Conservation Mark
Grisanti; Chair of Assembly Committee on Environmental Conservation Robert
Sweeney; State Attorney General Erik Schneiderman; U.S. Senators Charles Schumer
and Kirsten Gillibrand; Secretary of the Interior Ken Salazar; Representative Richard
Hanna and Representative Maurice Hinchey; EPA Administrator Lisa Jackson; EPA
Region 2 Administrator Judith Enck; New York State Association of Counties; New York
State Association of County Health Officials (NYASCHO); the Tompkins County
Department of Health; Chair of Tompkins County Legislature Martha Robertson; New
York State Conference of Mayors; and others as appropriate.
CITY OF ITHACA COMMENTS ON THE REVISED DRAFT SUPPLEMENTAL GENERIC
ENVIRONMENTAL IMPACT STATEMENT (sGEIS) ON OIL, OAS AND SOLUTION MINING.
MOP=
ADOPTED DECEMBER 21, 2011
GENERAL/MISSING SECTIONS
COMMENT PERIOD
• The regulations governing gas drilling have been simultaneously released with the sGEIS for
review. Mana
. ging comments for the 1500+ sGEIS is enough of a burden for municipalities
without adding the need to comment on regulations at the same time. The regulations should be
based on the sGEIS. The DEC should allow additional time to comment on the regulations
AFTER the sGEIS has been completed.
• The. DEC must not issue any drilling permits until after the sGEIS and regulations are complete.
HEALTH
• The sGEIS does not require or refer to an analysis of public health impacts, despite the fact that
fracking-related air pollution and the potential for water contamination may have serious effects
on people-especially the elderly and children, and communities downwind and downstream of
proposed fracking operations. There is growing evidence of negative health impacts related to gas
extraction in other states. The DEC in its sGEIS must undertake further review of fracking and
the impacts of horizontal drilling to ensure that all environmental and public health impacts are
mitigated or avoided.
As suggested by the United States Environmental Protection Agency (USEPA) in its 12/30/2009
commentary on the dSGEIS, the DEC must actively involve the Department of Health in the
review process. Indeed, the problems associated with shale gas development near housing have
only recently been catalogued as drilling ,has moved into suburban locations and farming
communities. http://abcalliance.org/wp-
content /uploads /2011 /0 I dren-2 0 1 1—health_prof.pdf
• There is a growing body of evidence on the health impacts associated with shale was
industrialization, yet the DEC has avoided a health impact assessment of them, The DEC must
require an in depth review of health impacts. http://www.scribd.com/doc/64476300/Fracking-
Health-Impact-Assessments.
The DEC Advisory Committee must have representation from County Health Departments in
order to understand the impacts the proposed regulations will have on local governments.
DEC STAFFING and MANAGEMENT
0 The DEC has an inherent conflict of interest since its duty is to "conserve, improve and protect
New York's natural resources and environment and to prevent, abate and control water, land and
air pollution, in order to enhance the health, safety and welfare of the people of the state and their
overall economic and social well-being", but it also issues gas drilling permits which have been
shown in other areas to likely harm the environment.
• New York DEC has been subject to steep budget and staff cuts and does not have adequate staff
or resources to properly oversee high volume hydraulic fracturing (HVHF). This reality raises the
possibility that the DEC will be forced to be less thorough than is required for its reviews and
permitting despite the risks.
• The thousands of miles of pipelines (and compressor stations required for drilling) to transport
natural gas to market will be reviewed by the Public Service Commission, a different agency than
under a different process than the DEC. Without an accounting of the impacts from pipelines and
compressors, New York's environmental assessment is incomplete and the full impact of fracking
is unknown. As such, Governor Cuomo should direct state agencies to coordinate their efforts in
order to protect our air, water and communities.
PROCESS — DSGEIS and REGULATIONS
New York State's SEQRA law provides for the gathering of environmental information to inform
the creation of regulations prior to the implementation of projects. DEC's proposal to write and
perhaps promulgate regulations concurrently with the SEQRA review certainly violates the intent
of the law and may invite legal challenge.
CUMULATIVE IMPACTS and GENERAL COMMENTS
1) Cumulative Impacts for Water Withdrawals - The SGEIS addresses cumulative impacts
for water withdrawals by using the pass-by flow determinations; however, the SGEIS needs to
address cumulative impacts on water resources in all areas. Although the Water Resources Bill
passed in 2011 would address cumulative impacts of groundwater and surface water
withdrawals, when and if regulations are developed, rules governing water withdrawal permits
must be developed before permits are issued for drilling. Without the permitting framework for
water withdrawals, it is not possible to determine if there are adequate safeguards for surface
water and groundwater.
2) Cumulative Impacts for all Interconnected Drilling Activities A process needs to be
established to address impacts from all interconnected activities, including drilling operations,
that are regulated by DEC and pipelines and compressor stations that are regulated by the Public
Service Commission (PSC). An Environmental Impact Statement for the gas lines and
compressor stations must be performed by the PSC to assess the cumulative impacts on water
resources, community infrastructure and quality of life issues such as noise, road damage and air
quality from the additional pipelines and compressor stations that will be needed to transport the
gas from the thousands of individual well pads to the regional pipelines. Compressor stations will
be needed, with pipelines from each well to the compressor station, and additional pipelines from
the compressor station to the main transmission line. However, the rdSGEIS does not address the
impacts of the pipelines or compressor stations necessitated by well drilling operations. The
impact of the vast network of access roads, pipelines and compressor stations must be addressed
by the SGEIS. The rdSGEIS identifies the PSC as the responsible agency to oversee construction
and protection of the environment for pipeline construction. This segmentation of the
environmental impact assessment makes it difficult for decision makers and the public to
adequately assess the total environmental impacts anticipated from gas drilling activities.
%_-1
2
3) Program to Monitor and Protect Drinking Water Resources
Proper monitoring and assessment strategies must he in place to protect the State's water
resources, and sufficient laboNatory capabilities fog analysis must he in place prior to drilling.
The state currently does not have a strategy in place for data collection and analysis. Such a
strategy is key to developing a comprehensive regulatory process that must be in place prior to
drilling. All stakeholders (regulatory personnel, drilling companies, and the public) need to be
ensured that valid data are being collected and disseminated in a cost effective manner..
Considering the volume of environmental and public health data that will be generated by HVET
gas drilling, it is essential that NYS Department of Health develop and manage comprehensive
databases in order to facilitate effective, comprehensive oversight and public protection during
g as drilling. A program must be developed for electronic sharing of monitoring data and must be
shared with local health departments as they will be the agency first contacted if any
contamination is detected.
Funding for Environmental Oversight
Permit fees must be increased to cover the entire cost of a regulatory program for
environmental oversight of the Marcellus gas drilling.
The State will incur increased costs for 1) DMR personnel to oversee field operations and process
the associated paperwork, 2) health department personnel to develop and maintain a database, and
to evaluate drinking water quality data collected from groundwater wells near the drilling sites
and respond to water quality complaints, 3) NYSDEC personnel to monitor surface water
discharges from treatment plants, 4) personnel in the NYSDEC to develop and maintain a
database on surface water flows and quality in the areas where drilling is occurring, 5) other
regulatory personnel needed in the NYSDEC Division of Water and Bureau of Hazardous Waste
and Radiation Management as well as the DMR to oversee the immense program that drilling in
the Marcellus Shale will necessitate, and 6) local municipalities will need support to cover
increased costs for expanded services caused by drilling activities. The Division of Budget must
perform an economic analysis to ensure the fees are adequate to fund the necessary environmental
oversight.
Permit Re-evaluation.
The NYSDEC re-evaluation of specified permit condition in two or three years should involve
public review and comment.
Other low permeability shale formations
The scope of the dSGEIS includes all low permeability shale formations where HVHF gas
drilling will bs employed. However, many sections of the document only reference the Marcellus
Shale. Environmental impacts associated with other low permeability gas reservoirs where the
hydrogeochemistry is different than the Marcellus shale are not addressed in the dSGEIS. The
SGEIS must be expanded to include potential impacts from other formations.
Local Government
Local municipalities are already burdened by additional costs to their budgets in the review of the
dSGEIS and proposed regulations and in preparing for potential gas drilling impacts. There is no
structure for municipalities to recover those costs other than to raise taxes. If/when gas drilling
occurs, there will be•even more financial burdens on many rural municipalities that lack the staff
to monitor activities within their borders,
3
All other states other than New York and Pennsylvania have an extraction tax of between 7% and
25%. Local municipalities (not to mention NYS) have already expended hundreds of thousands —
if not millions — of dollars preparing for the expansion of the gas industry. An extraction tax of at
least 12% must be imposed in order to pay for NYS's regulation, inspection and enforcement of
the gas industry and local municipalities' costs as a result of the impact of gas drilling. The 12%
tax should be evenly divided between the state and the local municipalities. The ad valorem tax
should be increased to at least 8% and at least 4% go to towns, which are the level of government
which must absorb most of the costs of gas drilling.
Accidents and Violation Reporting
Currently the DEC does not have an adequate electronic record-keeping system of violations,
accidents, and spills which makes aggregating problems and notifying local governments and
residents so difficult as to be nearly impossible. The DEC must bring their violations reporting
system into the 21st century by making them easily available to the public electronically.
Compulsory Integration
New York State is one of the few states to allow compulsory integration and possibly the only
one to allow it against individual homeowners. NYS must rescind compulsory integration to
respect the rights of its homeowners.
PERMIT RE-EVALUATION
The NYSDEC re-evaluation of specified permit conditions in two or three years should involve
public review and comment.
EXECUTIVE SUMMARY
• The dSGEIS allows any 'proprietary' chemical constituents not to be subject to public disclosure.
It appears that the companies can avoid disclosure, if they simply claim the additive is
"confidential". The DEC must require full disclosure of all chemicals and additives used in the
hydro-fracturing process. - SGEIS 2011 Executive Summary "Mandatory Disclosure of Fracking Additives and
Alternatives Analysis" -page 22
The dSGEIS only weakly suggests operators "evaluate the use of alternative fracturing additive
products that pose less risk"- SGEIS 2011 Executive Summary "Mandatory Disclosure of Fracking Additives
and Alternatives Analysis" - page 22.
CHAPTER 1— INTRODUCTION
1.7 ENHANCED IMPACT ANALYSIS AND MITIGA TION MEAS URES
1.7.5 Local Planning Documents
• Article 8 of the ECL, commonly known as SEQRA, has necessitated the current Supplemental
Generic Environmental Impact Statement (SGEIS) which DEC must adopt for the technique
known as high volume hydraulic fracturing natural gas drilling. As part of that review, the DEC is
required to evaluate and consider the character of the communities in which natural gas drilling is
proposed to take place. This character is best determined by the individual localities, and those
that have passed bans on natural gas drilling or "heavy industrial uses," statements in their zoning
ordinances, and/or resolutions stating objections to the practice, have clearly shown a collective
determination that such activity is not consistent with the character of their communities. Such a
determination would constitute an adverse environmental impact which could not be mitigated.
DEC should include this analysis and determination within the SGEIS.
0
Further, as regulations have been proposed, they are the appropriate place for this issue to be
addressed. DEC is charged with implementing the proper and constitutional meaning of ECL 23-
0303(2); this may be accomplished by the express acknowledgment of local authority to regulate
land use controls of gas, oil and mineral mining activities, or the determination by DEC that no
permits shall be issued where an adverse impact to community character is determined under
SEQRA, as laid out above.
1.7.9 Flowback Water Disposal
• The state must not allow municipal sewage treatment plants to treat drilling wastes, because such
plants are not permitted to handle the toxic elements in such wastes.
• Some components of drilling waste would normally qualify as hazardous waste under state and
federal law but have been exempted from these laws. The DEC must not allow any waste that
would qualify as hazardous waste in any other settings to be sent to municipal sewage treatment
facilities or disposal wells in New York nor allow it to be shipped to other states.
1.7. 10 Management of Drill Cuttings
• The plan by the DEC to track the solid and liquid wastes, generated in connection with (racking,
is positive; however under the sGEIS, tracking of these wastes is the responsibility of the gas
industry operators. The DEC must take a more active role in tracking waste that, in other settings,
qualifies as hazardous. The gas industry must not be allowed to oversee itself in this area.
1.7.15 Community and Socioeconomic Impacts
• The DEC needs to do a comprehensive, focused plan to review and analyze the consequences of a
full build out of many wells on a community.
• A monetary value must be assigned to potential degradation of the environment in a
comprehensive review of community and environmental impacts from drilling.
• As proposed, the DEC staff will review the well applications one at a time, without considering
the impact of many wells being permitted in close proximity. Impacts on communities must be
considered from the standpoint of multiple wells being introduced to an area not one at a time
since the industry profits from a high drilling density within an area.
• In its considerations of the economics of drilling, the DEC and the State must acknowledge that:
• Relatively few local jobs will be produced by the gas companies. Many of the higher
paying jobs associated with HVHF go to employees who are residents of other states and
will not be paying state income taxes. Likewise, most of the technical field jobs go to
transient workers with no social or other connection to the local community. The
experience in other communities has demonstrated an increase in crime, local housing
costs, and a strain on health care resources (see Sayre Health report).
• Small businesses will face higher labor costs as a result of competing with wages paid by
the gas companies in order to keep their employees on the job.
http://www.greenchoices.cornell.edu/downloads/development /marcellus/Marcellus—CaR
DI.pdf.
• The SGEIS is incomplete; it does not yet contain the socio-economic analysis of whether there is
a balance between risk/reward,
5
CHAPTER 2 — DESCRIPTION OF PROPOSED ACTION
2.4.4 Public Water Systems
2.4.4.1 Primary and Principal Aquifers
Prohibit HVHF near all primary aquifers.
The DEC is proposing to prohibit fracking in primary aquifers that serve as public
drinking water supplies, but this "prohibition" is only limited to a couple of years after
which the state could "reconsider" the bans. In addition, the DEC does not lay out the
conditions under which "reconsideration" would be reviewed. The DEC needs to prohibit
HVHF near all aquifers.
E Sunset date for buffers.
The preliminary draft proposes to place some areas of the state off limits to gas drilling,
but upon closer examination, many of the restrictions have sunset dates and some of the
protective buffers only call for site-specific individual environmental review, rather than
clear restrictions. The DEC needs to strengthen and clarify restrictions and the
requirements for buffers and site-specific environmental review.
E Mapping of aquifers is inadequate.
In order to determine a 500 foot buffer to a principal aquifer, the aquifer must be mapped
at least to the scale of 1:24,000 feet but many aquifers are only mapped at the 1:250,000
foot scale. The DEC must increase buffer requirements overall but particularly when
mapping of the aquifers is inadequate. Part of the fee structure for permitting should go to
funding better maps of aquifers throughout the state.
CHAPTER 4 — GEOLOGY
4.1 INTR OD UCTION
• Extent of Marcellus Shale, Section 4: Lateral drilling should be prohibited below the Finger
Lakes and "Dry" Finger Lake valleys because of the thinness or absence of Marcellus shale in
these areas.
• NYSDEC must establish a set back distance fog well bores and laterals om salt mines. Past
solution mining practices for salt mines has typically caused collapses and disruptions of bedrock
structure. These zones of disrupted bedrock structures could act as conduits through which fluids
could flow, including methane-rich formation fluids and fracking fluids. During hydrofracking, it
is possible that highly-pressurized drilling fluids will force methane-rich fluids in the disrupted
zones to flow into the salt mines.
4.4 MA R CELL US FORMATION
• Figures 4.8 through 4.12: These figures which show the extent and thickness of the Marcellus
Shale are inaccurate in the Finger Lakes troughs (for ex. Cayuga, Seneca, Skaneateles,
Canandaigua Lake troughs) and in some "Dry Finger Lakes valleys" (for ex. Tully Valley and
Genesee Valley). Seismic work done by Mullins and others (1996) and well data collected by
USGS (Yager and others, 2001, and Yager and others, 2007) have shown that, in these deep
trough valleys, the glaciers had eroded down to the Onondaga Limestone (completely removing
the Marcellus Shale) and then rode from 5 to 10 miles southward on top of the Onondaga
Limestone until it began to rise up back onto the Hamilton Group (including the Marcellus
Shale). Since the Marcellus Shale is absent in much of the deep Finger Lakes (ex. Cayuga and
R
Seneca Lakes) and is missing in the northern 2/3 thirds of the medium-deep Finger Lakes (ex.
Canandaigua Lake) and in some "Dry" Finger Lake valleys (ex. Tully valley), the extent of the
Marcellus Shale is not correct in the figures 4.8.- 4.12. Also, in the southern 1/3 of the medium
deep Finger Lakes, where the Hamilton Group begins to reappear in the bottom of the trough and
where the overlying rock is much thinner than depicted in fig. 4.8, the depths to tops and
thickness of the Marcellus Shale are inaccurate. David Barclay (Geology Professor, SUNY
Cortland) adds "The basic issue is that the outcrop maps of the Marcellus Shale being used in the
SGEIS ignore the deeply scoured troughs of the Finger Lakes. The maps suggest that Marcellus
is present and is over 1000' below the land surface throughout the central and southern Finger
Lakes region. However, subsurface data along the lakes collected by Mullins and others in the
1980s and 1990s show that bedrock in the troughs is scoured down to the Onondaga Limestone
and so the overlying Marcellus is either locally absent or only thinly buried by Pleistocene lake
clays. This means that the Marcellus is much closer to contact with the waters of the Finger
Lakes than has been generally assumed The concern here is that lateral drilling of the Marcellus
from well pads near lakeshores may breach into the unconsolidated Zake floor sediments, ,from
where drilling fluids may then escape into overlying lake waters. Even if drilling does not cross
the bedrock-sediment contact, drilling close to this boundary may still enable fluids to escape
horizontally when wells are pressurized during h Nowhere in the SGEIS do I see
consideration of the natural topography of the Finger Lakes troughs and how it might affect
drilling operations. "Therefore, since the Marcellus is absent, thinner (by ice erosion), or overlain
by much less rock than depicted in figs. 4.8 — 4.12, lateral drilling should be prohibited below the
Finger Lakes and "Dry" Finger Lake valleys. In addition, a buffer should be included along the
trough walls for both well bores and laterals to prevent fracking solution from entering the lake
trough,
4.5.1 Background
• There is no discussion of the nature, type, history of tectonic stresses, and timing of the formation
of faults in central NY. There is only discussion of the occurrence of faults in eastern and
northern NY. This is a major oversight since the main subject of this document is gas drilling that
is most likely to occur in the southern central NY.
• There is no discussion that some faults could result in disturbed zones of crushed (brecciated)
rock, and if these zones are not healed by precipitation of minerals, igneous intrusions, or
movement of salt, then the secondary permeability formed along these fault planes could act as
conduits through which fluids could flow, including methane-rich formation fluids and fracking
fluids. During hydrofracking, it is possible that highly-pressurized drilling fluids will force
methane-rich fluids in the faults to flow upward, possibly discharging to shallow aquifers (if
present) or to land surface. Case history- at the Watkins Glen salt brine field, Jacobi and Dellwig
(1974) reported that while hydraulic fracturing was being conducted in one of the wells at a depth
of 970 meters (3,180 ft), a flow of brine developed at land surface about .7 kilometer (0.4 mi) to
the north probably as a result of the movement of the brine along a strike-slip fault. The strike-
slip fault was mapped by Stone & Webber (1978a, 1978b, and 1979) and by Murphy (1981).
Incidentally, this fault is not shown in dSGEIS fault map, Fig. 4.13 The fault (strike of N50 W)
can be projected southward along the west shore of Seneca Lake and extending from the Himrod
mine in the north to Watkins Glen brine field (and continuing southward, the fault trace coincides
with a landsat lineament mapped by Isachsen and McKendree (1977).
4,6 NATURALLY OCCURRING RADIOACTIVE MATERIALS (NORM)
According to Jame's W. Ring, Professor Emeritus of nuclear physics from Hamilton College, the
draft sGEIS does not include adequate study of radon in its review of issues. This is a subject
which deserves further study before this, or any other supplies of Marcellus gas, are delivered to
households where it may endanger the health of citizens. (http://saneenergypro,iect.org/2011/10/09/special-
delivery-spectra-pipeline-could-bring-radon-to-nyc-stoves/).
CHAPTER 5 - NATURAL GAS DEVELOPMENT ACTIVITIES AND HIGH-VOLUME
HYDRAULIC FRACTURING
5.13.3 Flowback Water
• Although high volume hydro-fracturing (HVHF) used in the extraction of natural gas is exempt
from the federal Safe Drinking Water Act, the DEC must require adherence to this law in its
sGEIS regulations.
• In light of the recent announcement that the EPA will regulate the disposal of wastewater derived
from shale gas drilling, starting in 2014, the NY DEC should wait until these standards are in
place before permitting drilling within NYS.
• In October 2011, the EPA reviewed data from states and other sources that show "elevated levels
of pollutants entering surface waters as a result of inadequate treatment at facilities." Those
materials can include naturally occurring radium, bromide, and other toxic or radioactive
substances that can be pulled out of the ground when water is produced at natural gas wells.
Typically with other sectors, industrial wastewater is pre-treated before it is sent to municipal
treatment facilities, lest contaminants damage the facilities (risking the release of raw sewage) or
remain in the fluid even when it is ultimately discharged into waterways. Cynthia Dougherty,
director of the EPA's Office of Ground Water and Drinking Water, said during a Senate Energy
and Natural Resources subcommittee hearing that there "isn't good treatment available for some
of the things that are in wastewater" from natural gas drilling. Given that no Publicly Owned
Treatment Works (POWTs) in NYS are currently able to treat chemicals and soluble solids
contained in waste water from shale gas drilling, and the liquid is not required to be pre-treated.,
DEC must prohibit drilling until this situation is resolved. Simply sending wastewater to other
states or relying on injection wells for disposal is inadequate and unacceptable.
5.13.3.4 Road Spreading
• The DEC has already failed to protect NY drinking water by allowing produced water from PA to
be spread on roads in New York State within Tompkins County, without SEQR review. The DEC
should not allow flowback or produced water to be spread on roadways.
P611,
CHAPTER 6 - POTENTIAL ENVIRONMENTAL IMPACTS
6.1.4 Groundwater Impacts Associated With Well Drilling and Construction
• After 4 years of intense drilling in PA, there is no data from PA about groundwater contamination
or other actual impacts there in the SGEIS as a form of assessment.
6.1.4.3 Natural Gas Migration
• Regional Areas of Special Geological Risk Not Protected. The DEC has not addressed fracking
in areas of special geological risk, such as those with fault lines that are potential pathways for the
upward gradient of contaminants into aquifers because they claim that contaminants can't rise
into aquifers. However, independent scientific studies have proven that upward migration of
contaminants is not only possible, but also likely. The DEC based their assertion on industry
studies- that looked at just 5 days in the fracking process.
6.1.5 Unfiltered Surface Drinking Water Supplies: New York City and Syracuse
NYSDEC should prohibit HVHF in all watersheds where surface water is the source of
a public drinking water system, not just unfiltered surface water drinking sources. Filtration
avoidance requires a watershed control program -which in turn requires characterizing the
watershed and the ability to identify, monitor and control manmade and naturally occurring
activities detrimental to water quality. This is far more powerful than simply treating what shows
up at the intake pipe of a conventional drinking water facility.
In section 6.1.5.1, p. 6-46, the dSGEIS states that Increases in phosphorus are expected to create
algal blooms, possibly leading to production of neurotoxins, fish kills, taste and odor problems
and increases in disinfection byproducts in unfiltered drinking waters or their source waters.
Conventional drinking water filtration plants are not designed to remove neurotoxins. Fish kills
in a filtration plant's source water will be the same as that in the source water for unfiltered
drinking water. Taste and odor problems are not necessarily treatable at filtration plants. Finally,
any increase in disinfection byproducts that is tied to increases in soluble organic matter will not
be abated by going through a filtration plant6.1.5. 1, page 6-46
On page 6-48, toxic compounds are listed as a pollutant (group) of key concern when managing
an unfiltered drinking water system. It is stated that unfiltered drinking water supplies have a
heightened sensitivity to chemical discharges as there is no immediately available method to
remove contaminants from the drinking water source waters. Tompkins County too, uses surface
water for drinking. And while our filtration plants can remove particulate matter, that will not
solve the problem of contamination by toxic compounds. It is just as true for the residents of
Tompkins County as it is for New Yorkers, that there is no immediately available method to
remove contaminants of the nature of the toxic compounds contained within frac water.
X,
New York City's investment in their watershed (and drinking water system) is listed at $1.6
billion (section 6.1.5, p. 6-50) - presumably this is to show that they have too much invested to
risk. While water quality degradation (virtually guaranteed via storm water inputs per section
6.1.5) in source waters with existing filtration facilities will not require the kind of investment
that building a new facility would, the costs are not insignificant. Sediment load increases would
result in increased electricity costs, decreased equipment life span -and possibly increased
chemical costs. If water quality degradation included increases in soluble organic matter leading
to violations of disinfection byproduct limits, new treatment technologies would have to be added
-'which could cost millions. None of this is addressed in the SGEIS. Storm water impacts on
water quality are discussed throughout section 6.1.5. DEC acknowledges that aggressive erosion
control work resulted in de-listing of the Cannonsville Reservoir as an impaired water body. It is
further stated several times that despite current regulations, storm water impacts will be
significant. As it is certainly not the intent of DEC to put at risk all the environmental work that
has targeted non-point source pollution or to degrade the quality of NY waters, DEC should
prohibit HVHF in the watersheds of all water bodies that are currently listed as stressed,
threatened or impaired.
• The DEC has banned drilling near the New York City and Syracuse drinking water supplies since
those waters are not filtered. Within the Finger Lakes Region, water is pulled from lakes and
treated for public consumption and filtered but not for the chemicals, heavy metals, potential
radioactivity, and salt content that could be expected if waste water from hydraulic fracturing is
allowed to be treated and released into public water supplies. The DEC must ensure flowback
and/or produced water is not released into any public drinking water supplies whether they are
filtered or not, since filtering is ineffective for contaminants from the HVHF process.
• By giving the NYC and Syracuse Watersheds special protections, the NY DEC is implicitly
admitting this process is inherently unsafe, and denies many New Yorkers Equal Protection of the
Law. Both the United States Constitution (14th Amendment) and the NY Constitution (Art. 1. §
11) demand that all persons deserve Equal Protection of the Law. The sGEIS fails this.
6.1.7 Waste Transport
• Flowback and production brine waste water should be classified as hazardous industrial-
commercial waste as several studies indicate the presence of toxic materials. Allowing non-
hazardous waste classification appears to be an extension of the exemption provided by Congress
in 2005 but should not apply to waste under DEC regulations.
• The sGEIS must require all fracturing fluids, drill cuttings, flowback and production brine to be
tracked through a requirement for a chain- of- custody for each load of waste. NYS must collect
these manifests and create a publicly accessible electronic database of this information even for
waste leaving New York State. The DEC must work with other states to ensure disposal of wastes
outside of New York meets the same standards as those within New York.
0
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6.1.8 Fluid Discharges
The DEC has sidestepped banning open waste pits, because they assert they are unlikely to use
open pits for the storage of wastewater. The DEC must prohibit open pits and not allow DEC
employees to grant approval without doing an individual environmental impact study.
6.1.8.4 Disposal Wells
Little research has been conducted by the U.S. Geological Survey or other researchers that would
indicate there is much, if any, capacity for geological formations within New York State to
absorb liquid wastes from drilling. Abandoned Trenton-Black River wells have small cavities and
the surrounding formations have low permeability and thus offer little potential for ultimate
disposal. In addition, these disposal wells could conceivably be conduits for contamination of
nearby water sources.
6.1.9 Disposal of Solid Wastes
Cuttings must be managed in a closed loop tank system and ultimately be disposed in a Part 360
solid waste facility or a Part 3 80 radioactive materials management facility.
6.7 Naturally Occurring Radioactive Materials in the Marcellus Shale
The sGEIS must indicate that the NYS DEC must require, by regulation, that radiation surveys be
conducted at frequent intervals at Marcellus and Utica Shale well pads, piping, feeder lines, and
condensate tanks that concentrate NORM scale residues.
Chapter 7 — EXISTING AND RECOMMENDED MITIGATION MEASURIES
7.1.2 Stormwater
Because of the possibility of surface water contamination from storm water runoff and/or surface
spills associated with gas drilling activities, a program to monitor surface water quality in areas
affected by HVHF should be established by the NYSDEC. The NYSDEC should establish a fund
to be used for surface water monitoring using a funding mechanism similar to FL-LOWPA
whereby the NYSDEC allocates funds to Soil and Water Conservation Districts (SWDC) and
SWCD staff request and review proposals from local agencies and organizations to monitor
surface water quality.
Each local program should select monitoring locations in anticipated high activity areas in such a
way as to better understand the general characteristics of the watershed as well as to characterize,
to the extent they are known pre-drilling, the smaller catchment areas where gas wells will be
drilled. The following minimum monitoring frequencies and water quality indicators are
recommended:
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1. Chemical monitoring
Frequency: Pre-drilling and at least quarterly during drilling and fracking;
General method: Water samples collected and analyzed by a certified lab;
Indicators of pollution: Soluble reactive phosphorus, total phosphorus, count of either E. coli or
fecal coliform, total suspended solids, turbidity, and a set of "signature chemicals" to screen for
contamination by toxic compounds in gas well waste: pH, alkalinity, total dissolved solids,
conductivity, potassium, chloride, bromide, sulfate, total hardness, barium, strontium, dissolved
oxygen, chemical oxygen demand, gross alpha radioactivity, gross beta radioactivity.
2' - Biological monitoring
Frequency: Pre-drilling and at least once a year
General method: Benthic macroinvertebrate (BMI) sampling and analysis. Two replicate samples
are collected at each of a subset of chemical monitoring locations. Adhere to Tier 2 or Tier 3
protocol in Hudson Basin River Watch Guidance Document, which are based on NYSDEC
monitoring protocols.
3. Follow-up
Monitoring should continue for at least five years after the last gas well on a multi-well pad has
been plugged. If monitoring results indicate degradation of the designated use of a stream, lake or
reservoir in the vicinity of the well pad, the NYSDEC should investigate, as mandated under the
Clean Water Act.
All water sampling results should be made available to the public.
In order to minimize impacts from spills and other incidents, NYSDEC representatives should be
monitoring drilling activities on-site at least three times per week.
7.1.3 Surface Spills and Releases at the Well Pad
7.1.3.2 Drilling Fluids
• The DEC must prohibit any open pit storage of any produced or flowback liquid due to the fact
that open pit liners are not secure enough to ensure any leakage into groundwater or nearby
surface waters.
7.1.3.3 Hydraulic Fracturing Additives
• The DEC must require full disclosure of all components used in the hydraulic fracturing process
regardless of whether the industry insists disclosing trade-secrets would be to their disadvantage.
Treatment facilities, water monitoring networks, residents using well water and emergency
response teams need to know what products are being used in the H`VHF process.
• The DEC should not permit any drilling until greener alternative additives used in the
HVHF process can be found.
7.1.4 Potential Ground Water Impacts Associated With Well Drilling and Construction
7.1.4.1 Private Water Well-Testing
• The testing distance should be increased to 2,000 feet, in order to be more protective of property
owners. The DEC should make it clear that the burden of proof is on the driller to prove that they
did not contaminate a private water well. In addition to private water well testing, a network of
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groundwater monitoring wells should be created in the vicinity of drilling activities, the
monitoring should be conducted prior to site development and throughout site development and
during the production phase.
• The water quality monitoring program should not be complaint-based. NYSDEC should
establish a groundwater monitoring and reporting procedure that requires the applicant to
submit electronic versions of the analytical results to the repository agency and local health
department within a specified time period and requires the applicant to determine if there have
been any significant increases in chemical or physical concentrations. As in groundwater
monitoring around landfills, the groundwater monitoring program around gas drilling sites should
establish procedures for follow-up testing if results indicate there may be contamination in the
monitoring wells. If the program is complaint-based, the burden of proving there is a problem
will fall on the property owner, and he or she may not have the knowledge to understand the
analytical results and know if there is a problem until the contaminant levels are very high.
Moreover, with a complaint based program the property owner may have to pay for further tests
to confirm the contamination. The burden for determining if there has been contamination of
groundwater and any follow up actions required should be on the applicant, not the property
owner.
• Page 7-44 states that "...the results of each test must be provided to the property owner within 30
days of the operator's receipt of the laboratory results. The Department would further require
that the data be available to the Department and local health department upon request for
complaint investigation purposes. "Results should be required to be provided to the local health
department and the NYSDOH. The NYSDOH should be the official data repository. The data
collected should be entered into a state-wide database that is available to the public.
• Before drilling the operator must be required to identify any abandoned gas or oil wells along the
length of the horizontal bore hole as well as any mapped faults. The fault map in the dSGEIS
(Fig. 4.13) is based on outdated information and does not contain many mapped faults. If any of
these features have been identified along the horizontal length of the proposed bore hole the
horizontal extent of monitoring should be increased to include these features. Drinking water
wells within 1,000 feet of the well pad, or if there are none identified, drinking water wells within
2,000 feet of the horizontal well pad, should be included in the monitoring program.
"Testing before drilling is recommended as a mitigation measure related to the potential for
groundwater contamination.... " This contradicts Appendix 10 which states that before site
disturbance, the operator must sample and test residential wells. Section 7.4.1 should be changed
to clarify that well testing is required before drilling in order to establish a baseline for
comparison in the event groundwater contamination is suspected.
• Sampling and analysis only continue until one year after the last well on the pad is
hydraulically fractured. Part 360 requires at least five years of post-closure monitoring. To detect
longer-term cumulative impacts to the groundwater resources such as a gradual regional increase
of chlorides and methane in the groundwater, the permit should require that sampling continue at
a minimum number o*fselected wells at least annually until the has well is decommissioned.
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• Water duality monitorinz v ojzrams should focus on monitoring the. aroundwater resource, not
just existing drinkinz water wells. Water-supply wells should not be the sole means of
determining if groundwater contamination has occurred near a Marcellus Shale gas well due to
the unknown or varying construction, operation, and availability of these wells, and the
possibility that there may be no private wells or springs within 2,000 feet of the proposed well
pad. Natural groundwater quality in the aquifers overlying the Marcellus and Utica play areas is
highly variable. Concentrations of parameters such as chlorides and radioisotopes vary by two
orders of magnitude in water sampled from water wells. With such natural variability,
documentation of water-quality impacts from gas drilling and hydraulic fracturing would be
extremely difficult if baseline data do not exist. As in environmental regulations relating to
landfills (360-2.11), the permit should require the applicant to install and monitor groundwater
wells to detect groundwater contamination before it reaches individual or public supply wells.
The results of the recent Duke study (Osborn, et. al., 2011) found evidence that methane
concentrations increased in proximity to the nearest gas wells and detailed analysis of the
methane indicated it came from deep earth deposits rather than shallow biogenic deposits. Thus,
the 'risk of methane migration is a real potential threat to wells near gas drilling sites, and
migration of methane should be detected using monitoring wells before it reaches a private water
supply well. At least three monitoring wells should he installed around each well pad (two
downgradient and one Upgradieno and these wells should he used to determine the direction of
groundwater flow in the vicinity of the well pad and sampled and analyzed at the same &equencv
as the private water lupplv wells.
• Review of the water-well testing results by local health departments as proposed in the draft
SGEIS following a complaint cannot be accomplished without additional resources. The
Department proposes that county health departments have responsibility for initial response to
most water well complaints, referring them to the Department when causes other than those
related to drilling have been ruled out. Funds Lor implementing this progZ!am should he provided
to local health departments. Fees cannot be raised directly by the local health departments since
the NYSDEC has sole regulatory authority over gas wells.
• Enforcement
and mitigation procedures for non-compliance with well-testing requirements and
parameters should he in place be o re dr illimrj2ermits are issued by ATSDEC. The well testing
procedures outlined in the dSGEIS do not specify what enforcement actions will betaken if well
testing requirements are not adhered to by the operator. Enforcement procedures for non-
compliance with well testing procedures must be in place before permits are issued for drilling.
• Table 7.2 Test parameters: There are several parameters that are important in evaluating potential
contamination from HVHF. Arsenic, strontium and turbidity have important health concerns
associated with them and should be included in table 7.2. Sodium, which is included in Table 7.2,
is redundant and can be eliminated. It is generally not possible to take static water level in a
private well and this parameter also should be eliminated. Also, the VOC analysis is vague;
VOCs should be analyzed using EPA Method 524.2.
• Sampling protocol: The sampling protocol described on page 7-49 is mostly reasonable.
However., a blanket requirement that the well pump be run for five minutes before taking samples
is misleading and should be changed. If the well is being used, the water in the pressure tank can
be assumed to be representative of water in the formation. Therefore, if the water is run to
evacuate half the volume of the pressure tank, or 5 minutes, whichever is less, before sample
collection, the water sampled should be representative of water in the formation. It is not
14
necessary to disinfect the faucet before sampling because biological samples are not being
analyzed.
• The burden of proof of well water contamination should rest on the gas companies themselves,
not landowners. Such a requirement Would encourage drilling companies to be more proactive in
Water Well protection.
7.1.5 Setback from FAD Watersheds
By giving the NYC and Syracuse Watersheds special protections, the NY DEC is implicitly
admitting this process is inherently unsafe, and denies many New Yorkers Equal Protection of the
Law.
7.1.6 Hydraulic Fracturing Process
Section 7.1.6 outlines procedures for abandoning an out -of- production well. It is important this
section remain in the sGEIS to ensure all abandoned gas wells are identified and properly plugged
prior to any drilling since there are numerous wells that have not yet been adequately plugged.
New York State needs to secure funding for the DEC to oversee this process and the financial
responsibility of landowners mitigated since they may not have the funds to safely and thoroughly
have this process performed.
7.1.7 Waste Transport
7.1.7.2 Road Spreading
• Disposal of brine through road spreading is regulated more stringently in this new draft of the
sGEIS, however beneficial use determinations (or BUDS) will still be allowed if a SAMPLE of
the brine is analyzed by an approved laboratory and determined to be safe. Determinations of how
this sampling will be done and what determines a representative sample are still too vague to
allow any brine disposal on roadways. The DEC must be clear about how samples will be taken,
how often, whether there is a chain of custody required and who will pay for this testing. The
DEC must disclose to municipalities that brine is being spread on their roadways.
7.1.8 State Pollutant Discharge Elimination System (SPDES) Discharge Permits
7.1.8.1 Treatment Facilities
• The SGEIS indicates that POTWs proposing to accept flowback water and /or production water
for treatment must have an approved pretreatment and/or mini-pretreatment programs, including
headworks analyses pursuant to 40 CFR Part 403 and DOW's TOGS 1.3.8 (New Discharges To
Publicly Owned Treatment Works) . However, such programs are only required of POTWs.
While industrial or commercial wastewater treatment plants likely should need NYSDEC
approval before they accept flowback and /or production water for treatment, the framework for
this approval cannot be 40 CFR Part 403 and DOW's TOGS 1.3.8. Instead it should be through a
SPDES permit modification request to add wastewater from a new source.
• A thorough analysis of the cumulative impact on the receiving water should be conducted if
multiple wastewater treatment plants will be used to dispose of wastewater into the same surface
water body.
15
7.1.9 Solids Disposal
This section allows for drill cuttings to be directed to an open pit and then buried on site when air
or water is used during drilling. Even with an acid mine drainage mitigation plan requirement,
there remain uncertainties about the NORM levels. DEC should require that all drill cuttings be
contained in closed loop systems and disposed of properly at a landfill that is regulated to accept
materials with NORM.
7. 1. 11 Setbacks
Prohibition on well pads in 2,000 foot buffer around public drinking water supplies
Protecting public drinking water supplies is essential to protect public health in the State, so
increasing the buffer to 2,000 feet is a critical element of protection these valuable resources.
However, the location of zones with significant vertical permeability such as faults and fracture
intensification domains (FIDs) (which have been identified by Jacoby, 2002, as often being
associated with known faults and suspected faults) in the vicinity of public water supplies also
has to betaken into account. Jacoby and Dellwig, 1968, found that fracturing induced brine flow
0.5 miles from the well being fractured. If there are faults or FIDs shown on published maps
within 1000 feet of a public water supply well, well pads should also be prohibited within 2,500
feet of the fault or FIDs (Jacoby and Dellwig, 1968).
Prohibition on well pads in 500 foot buffer around private well supplies
Protecting private drinking water supplies is as essential as protecting public water supplies. We
appreciate the increase in buffer to 500 feet, however, the buffer distance should be 1,000 feet to
adequately protect these vital resources.
Prohibition on well pads in primary aquifers and 500 foot buffer
Protecting primary aquifers is essential to protect public health in the State. Although we
appreciate the prohibition of well pads within primary aquifers and within a 500 foot buffer, the
buffer should be increased to 2,000 feet from the aquifer boundary to adequately protect these
vital resources. In many cases, the maps on which the aquifer boundaries are based are at a scale
of 1:250,000, thus a large buffer from the aquifer boundary is needed to adequately protect
groundwater.
Requirement for site specific SEQRA determination for well pads in principal aquifer and
500 foot buffer
Protecting New York State's public water supplies is essential to protect public health in the
State. Requiring a site specific SEQRA determination for well pads in principal aquifers and
within a 500 foot buffer is not adequate to protect these vital resources. Well pads should be
prohibited in principal aquifers and within a buffer that includes either the surface water divide
for the aquifer or 2,000 feet from the aquifer boundary, whichever is less, to adequately protect
these vital resources.
All setbacks and buffers must be set to provide maximum protections that cannot be
altered.
The preliminary draft increases buffers and setbacks from aquifers and wells. However the
protections are inconsistent and can be waived in some instances.
WO
7.1.12.2 Setbacks from Other Surface Water Resources
• In the July version (Preliminary) revised SGEIS, a site specific SEQRA review was required
where the closest edge of a well pad was within 500 feet of a tributary to a public water supply.
This requirement was removed from the September version but should be strengthened to
prohibit well pads within these areas. The City's water filtering and treatment systems are not
designed to remove the toxic waste nor hazardous chemicals used in hydrofracking.
If contamination reached Ithaca's reservoirs via these tributaries, no remediation would replace
the loss of municipal water, and the replacement cost would be insurmountable.
• Table 11. 1, Page 1096: States that Section 7.1.12.1 "Specifies setback distances fi^om structures,
surface waters, public /private water wells, and water supply springs." However, there is no
section 7.1.12.1. That needs to be added. Setbacks to structures must be set, not only as per the
requirements of the mortgage market, but to ensure distances that are truly safe enough to
mitigate the effect of placing such activity in residential neighborhoods. Further, communities
must be allowed, under home rule authority, to set for themselves the minimum setback distances
from structures that will preserve their community character as determined by the local
community.
792 Protecting Floodplains
We appreciate that well pads will not be permitted in floodplains, however floodplain maps are in
need of an update. Until the floodplain maps are updated, there should be 500 foot setback.
7.5 Mitigating Air Quality Impacts
Although this section suggests ways to minimize sulfur oxides, nitrous oxides, methand, and
ozone during gas drilling, there is no discussion of radioactive radon gas mitigation or
monitoring. Radon gas dramatically increases the risk of cancer. The sGEIS must require air
quality monitoring within close proximity to active drilling sites and compressor stations to
ensure air quality will not have an adverse health impact on those working and living near drilling
sites.
7.6. Mitigating Greenhouse Gas Emissions
Rather than the sGEIS suggesting voluntary measures the gas industry can take to minimize GHG
emissions during operations, they should be required to reduce GHG emissions from active
drilling operations.
7.7 Mitigating NORM Impacts
7.7.2 Regulation of NORM in New York State
• The SGEIS discussion of the state's ability to regulate NORM in discharges and in scale build-up
within equipment at a gas well pad is too vague (NORM in FB/P water "may be subject to
applicable SPDES permit conditions," NORM scale buildup "may require licensing of a
facility".) The final SGEIS must identify when NORM related SPDES conditions will be
imposed and when NORM related part 380 permit conditions will be imposed. Further, the sGEIS
needs to quantify what levels will activate the different conditions.
• Routine radiation surveys should be required throughout the active life of a facility, including
during drilling of all production wells and during decommissioning of any equipment that came
into contact with flowback and/or produced water.
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7.13 EMERGENCY RESPONSE PLAN
• The DEC must obligate the gas companies to interface with, and provide information to, local
first responders and/or County emergency management offices. This section notes that an
emergency response plan consistent with the sGEIS must be provided to the DEC 3 days prior to
well spud. A 3-day advance notice to local emergency responders is completely insufficient.
• In addition to what is contained in the sGEIS, are the following minimal specifics for an
emergency response plan:
o GIS addressing/mapping
o Access and egress appropriate to emergency response vehicles
o MSDS information
o Functional communications for requests for fire, EMS, law enforcement responses
o Defining roles and responsibilities of gas company personnel as well as first responders
o Development of a collaborative relationship between the gas company and local first
responders ... a jointly developed plan
o Expectations for when first responders would be needed and what would be handled
directly by the gas company ... and what other agencies might be needed in any given
emergency
On-site training for first responders
Chapter 8 - PERMIT PROCESS AND REGULATORY COORDINATION
General Comment
• In order to find reference to the setbacks from private dwellings, one must review the GEIS,
Chapter 8 to find that DEC is required to check and ensure the well location is at least 100 feet
from a private dwelling. Local lenders find that traditional residential mortgage lending in NYS
is in jeopardy if the State's current regulations are not changed to account for the long standing
secondary market requirements of Fannie Mae, Freddie Mac, FHA, VA and SONYMA, as they
related to setback distances. If traditional residential mortgages are not readily available, the
market for buying and selling residential homes will be negatively impacted. At a minimum, in
order to satisfy the agencies listed above, a setback of not less than 300 feet (measured on the
surface but extending subsurface to preserve the fee simple ownership of all subsurface rights)
should be required for all drilling and ancillary activities from the boundary lines of all parcels
containing a residential structure, school, or any public building.
8.1 Interagency Coordination
8.1.1 Local Governments
• Local Governments need to be involved and informed in all aspects of the drilling process and a
procedure for this needs to be in place before drilling begins. Each municipality must receive
copies of gas drilling permit applications, including parcel tax map numbers, before any permits
are issued by NYSDEC. The NYSDEC should also be required to provide each local municipality
and county government with 1) accurate Environmental Inspector contact information for permit
coordination between agencies as well as emergency and spill response coordination, and 2)
written notification to each municipality of the location of each well-plugging permit application,
including tax map parcel number and mapping coordinates.
18
• Local governments, health departments and emergency responders and residents must be
provided with all the chemical compounds being used for drilling in order to be able to respond to
spills and to correlate health problems should they occur.
• Funding must be provided to village, town, city and county governments to offset additional
staffing and resources necessary as a result of a rapid increase in services required as a result of
active drilling areas. The state government must listen to and work with local governments to
understand the community and economic impacts from drilling.
The State should respect local zoning laws enacted to protect residential areas, water resources,
environmentally sensitive areas and other valued local locations from heavy industrial activities,
as is the right of local governments under home rule laws.
• NYS should revise the EIS and the regulations to require full disclosure of lease information by
gas companies at the appropriate County Clerk's office. Further, NYS should require disclosure
of complete lease information within 30 days of signing of gas leases as well as disclosure of gas
lease extensions within the same 30 day time period, with signature required by both parties to
the extension.
8.1.1.3 Local Government Notification
• Section 8.1.1.3 states, "The Department will notify local governments of all applications fog
high-volume hydraulic ,fracturing in the locality, using a continuously updated database of local
government officials and an electronic notification system that will both be developed for this
purpose." The database developed and used to notify public officials of applications for drilling
permits should be open to all public officials. Local government officials should also be notified
when permits are issued. The local health department, County Administrator, and Town
Supervisor or Village Mayor should be included in the local officials notified and this section
should specify who in local government is to be notified.
8.1.1.4 Road Use Agreements
Many rural towns are already burdened with the high cost of maintaining their road systems.
DSGEIS Section 7.11.1.3 says that the owner/operator should attempt to enter into a road use
agreement, however, most municipalities feel that the DEC must require, not merely encourage,
gas companies to make road use agreements with local municipalities.
8.1.1.5 Local Planning Documents
The dSGEIS does not address local planning in a satisfactory manner. The vague statements in
8.1.1.5 say that the applicant should identify any conflicts with local laws, policies, or plans, but
DEC "would proceed to permit issuance unless it receives notice of an asserted conflict by the
potentially impacted local government." The DEC should expressly support the right of local
municipalities under Home Rule to determine land use within municipal borders, including where
or whether natural gas development occurs, consistent with zoning and comprehensive planning.
(8.1.1) The DEC should explicitly state that if the applicant for a gas drilling permit encounters
local laws, regulations and policies that are inconsistent with their proposal, the DEC will respect
the municipality's position and deny the permit. And the DEC must notify local governments of
permit applications and their approvals.
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8.1.1.6 County Health Departments
The sGEIS currently proposes that county health departments retain responsibility for initial
response to most water well complaints, referring them to the DEC "when causes other than those
related to drilling have been ruled out". This requirement will put an undue burden of proof on
County Health Departments with no additional funding to offset the considerable associated
expenses. The sGEIS must require proper water monitoring and assessment strategies to be in
funded and in place prior to permitting any wells. Data must be collected, analyzed and available
to the public.
Permitting fees must be increased to cover the entire cost to the State of regulatory oversight of
high volume hydraulic fracturing including 1) personnel to oversee field operations, 2) health
department personnel, 3) personnel to monitor surface water discharges from treatment plants, 4)
personnel to develop and maintain databases of water quality and quantity as well as air quality,
5) more regulatory personnel at the Division of Water and Bureau of Hazardous Waste and
Radiation Management to oversee this immense program, 6) local municipalities to cover
expanded services caused by drilling activities.
8.2.2.2 Impoundments
Given the recent history of "100 year rains" occurring every few years and the inherent long-term
instability of impoundments, only closed-loop systems for all hydrofracking operations must be
permitted.
8.1.3.2 Occupational Health and Safety Administration — Material Safety Data Sheets
The sGEIS allows any "proprietary" chemical constituents not to be subject to public disclosure.
It appears that the companies can avoid disclosure if they simply claim the additive is a "trade
secret." The DEC must require full disclosure of all chemicals and additives, including chemical
composition of each, used in the hydro-fracturing process.
Chapter 9 — ALTERNATIVE ACTIONS
9.1 No-Action Alternative
Based on the sGEIS analysis the No Action Alternative is the preferred outcome. Given the
clear dangers to the environment and public health of high volume hydraulic fracturing using
the current technologies, the lack of significant financial gain for the overwhelming majority
of the citizens of New York State and the assured decades-long damage to the way of life of
those residing in the gas-drilling regions, the No Action Alternative is the logical and proper
finding resulting from this SEQRA study. (9.1)
NAN
9.2 Phased Permitting Approach
9.2.4 Permit Issuance Matched to Department Resources.
The State and DEC must require as part of the permitting process, enough funds to hire adequate
DEC staff to oversee the permitting, oversight and enforcement of regulations governing the gas
industry. State tax funds should not be used for this purpose, but instead, the gas industry itself
should be required to foot the extra financial burden placed on the state and local governments as
a result of drilling operations. The DEC must require that adequate staffing is in place before any
permitting is allowed.
9.3 "Green" or Non-Chemical Fracturing Technologies and Additives
The DEC must require that chemicals used in the HVHF process be non-toxic to humans and
animals in the event they find their way into drinking water supplies.
Appendix 8
The dGEIS indicates that surface casing should not extend into zones known to contain measurable
quantities es of shallow gas. Shallow saltwater and (or) gas has been penetrated in the upper Devonian
bedrock in some areas. It is not clear from the dSGEIS how casing and cementing requirements will be
modified to deal with these conditions, nor how drilling companies will know before they drill in an area
if they should suspect gas in the upper Devonian in an area they are drilling. NYSDEC should have a
program in place before issuing permits that will require drilling companies to collect and share water
quality data concerning shallow gas and the depth of the fresh water. A database must also be established
for this data.
Appendix 22 Publicly Owned Treatment Works (POTWs) Procedures for Accepting Wastewater
from High-Volume Hydraulic Fracturing.
The DEC must require that specific toxicity analysis addressing potential toxicity of HVHF chemicals
should be paid for by the driller or supplier of the product or products. Testing must determine the
potential harmful effects of chemicals both singularly and in combination with others.
Appendix 26 Instructions for Using the On-Line Searchable Database to Locate Drilling
Applications
The public should have access to the actual permit application submitted to DEC.
zi
3. NEW BUSINESS:
3.1 Cayuga Garage - Request that Community Development Properties, Ithaca,
Inc. enter into Parking Agreement with Cornell Univers
WHEREAS, the Tompkins County Industrial Development Agency issued its Civic
Facility Revenue Bonds (Community Development Properties, Ithaca, Inc., Project),
Series 2003A and Series 2003(B) ("the Bonds"), and loaned the proceeds of the Bonds
to Community Development Properties, Ithaca, Inc. ("CDP") to enable CDP to build an
approximately 700 space multistory public parking garage ("Cayuga Garage") on
Cayuga Street south of the Tompkins County Library in the City of Ithaca; and
WHEREAS, in order for the Bonds to be sold, the City of Ithaca ("the City") entered into
a Financial Assistance Agreement which now requires the City to pay annually the
amount by which the debt service on the Bonds exceeds the cumulative net parking
revenues generated by the Cayuga Garage; and
WHEREAS, the City had previously requested that CDP construct the Cayuga Garage
to lessen the City's governmental burden to improve blighted conditions on Cayuga
Street south of the County Library by providing public parking and economic
development in the City and Tompkins County; and
WHEREAS, Cornell University ("Cornell") relocated certain of its operations to a facility
in downtown Ithaca constructed by Cascade Plaza, LLC ("Cascade"), conditioned upon
the availability of adequate public parking for the Cornell employees who work in that
facility; and
WHEREAS, on June 6, 2006, Cascade entered into an Office Parking Agreement (the
"Office Parking Agreement") with the City and the Ithaca Urban Renewal Agency
providing up to 250 parking spaces to Cascade's tenants, in the Cayuga Garage and
the Seneca Street and Green Street parking garages, and
WHEREAS, as Cascade's tenant, Cornell and its employees utilize approximately 150
parking spaces within the Cayuga Garage, pursuant to the Office Parking Agreement,
and
WHEREAS, CDP was inadvertently, unintentionally and without input from counsel
made a party to the Office Parking Agreement and should retroactively be disengaged
from said Agreement, and
WHEREAS, it is advantageous to CDP and the City that CDP enter into a separate
agreement directly with Cornell to provide parking to Cornell within the Cayuga Garage,
as was always intended, and
WHEREAS, the establishment of such an agreement between Cornell and CDP will
lessen the governmental burdens on the City to make payments under the Financial
Assistance Agreement and to further economic development in downtown Ithaca; and
WHEREAS, if there is a separate agreement between CDP and Cornell regarding
parking within the Cayuga Garage, then it is appropriate to amend the Office Parking
Agreement to proportionately reduce the total number of primary parking permits
required to be provided to Cascade's tenants pursuant to that Agreement, in recognition
of the spaces required to be provided to Cornell by the new CDP/Cornell parking
agreement, and
WHEREAS, if CDP is disengaged from the Office Parking Agreement with Cascade,
then it is appropriate to remove references to CDP's Cayuga Garage from the Office
Parking Agreement; now, therefore, be it
RESOLVED, That the City of Ithaca Common Council specifically requests that CDP
enter into a parking agreement with Cornell University to make available a reasonable
number of the public parking spaces in Cayuga Garage to Cornell University and its
employees, subject to:
1. a disengagement agreement removing CDP from the Office Parking Agreement,
and
2. an addendum amending the Office Parking Agreement with Cascade; and be it
further
RESOLVED, That the City of Ithaca Common Council hereby authorizes the Mayor,
subject to advice of the City Attorney, to execute an agreement to disengage CDP from
%&41
the Office Parking Agreement with Cascade, provided that the form and content of such
disengagement agreement are substantially in conformance with that of the draft
agreement presented to the Common Council and dated 12/14/11, and be it further
RESOLVED, That the City of Ithaca Common Council hereby authorizes the Mayor,
subject to advice of the City Attorney, to execute an addendum to the Office Parking
Agreement with Cascade so as to proportionately reduce the total number of primary
parking permits provided to Cascade's tenants pursuant to that Agreement (in
recognition of the number of spaces to be provided to Cornell pursuant to a new
Cornell/CDP parking agreement), and to eliminate references in the Office Parking
Agreement to the Cayuga Garage.
4r
12-14-11
DISENGAGEMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of this day of I 2012,
between the CITY OF ITHACA (the "City"), a municipal corporation organized under the laws of
the State of New York, having its principal office at 108 E. Green Street, Ithaca,, New York,
14850,, the ITHACA URBAN RENEWAL AGENCY ("IURA"), an urban renewal agency organized
under the laws of New York State, having its principal office at 108 E. Green Street,, Ithaca,, New
York,, 14850, CASCADE PLAZA., LLC ("Cascade,"), a limited liability company organized under the
laws of the State of New York, having its principal office at 350 Essjay Road, Williamsville, New
York 14220 and COMMUNITY DEVELOPMENT PROPERTIES, ITHACA, INC. ( "CDP "), a not-for-
profit corporation organized under the laws of the State of New York, having its principal office
at 708 Third Avenue,, Suite 710, New York, New York 10017 (collectively known as "the
Parties").
W ITN ESSETH
WHEREAS, on June 6, 2006, Cascade entered into an Office Parking Agreement with the
City and the IURA together referred to as the "Governments"; and
WHEREAS, the purpose of that Parking Agreement was to provide adequate parking for
the tenants of a building that Cascade had erected pursuant to a May 12, 2003, Sponsor
Agreement between Cascade and the Governments, such parking to be provided at a number
of sites owned or controlled by the Governments; and
WHEREAS, subsequent to the May 12, 2003, date of the Sponsor Agreement, CDP
constructed and now operates a public parking garage with approximately 700 parking spaces
on Cayuga Street in the City (the "Cayuga Garage"); and
WHEREAS, as Cascade's tenant, Cornell University ("Cornell") has utilized up to 150
parking spaces within the Cayuga Garage; and
WHEREAS,, CDP, which was not a party to the Sponsor Agreement) was inadvertently,
unintentionally and without input from counsel made a party to the Office Parking Agreement.
NOW THEREFORE,, BE IT RESOLVED, that in consideration of the foregoing, and of other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
1. The Parties shall treat CDP as never having been a party to the Office Parking
Agreement and any duties or obligations that may have arisen under the Office
Parking Agreement between the two of them shall be treated as having been null
and void retroactively to the effective date of the Office Parking Agreement; and
1
2. The Parties acknowledge that, simultaneous with this Agreement,, it is intended that
CDP and Cornell will enter into a separate Parking Agreement for Cayuga Garage
whereby CDP will provide Cornell with up to 150 parking spaces within the Cayuga
Garage; and
3. The Parties acknowledge that, simultaneous with this Agreement, section 4.1 of the
Office Parking Agreement shall be and is hereby amended to reduce by 150 the
total number of Primary Office Parking Permits available under the Office Parking
Agreement and to eliminate all references to the Cayuga Garage; and
4. Except as provided for in paragraph #3 above, the Parties acknowledge that this
Agreement will have no effect on any duties or obligations that may have arisen or
may subsequently arise under the Office Parking Agreement between Cascade and
the Governments, and that they will take no position of any kind that is contrary to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and
year first above written.
CITY OF ITHACA
Name: Svante Myrick
Its: Mayor
ITHACA URBAN RENEWAL AGENCY
Name: Svante Myrick
Its: Chairperson
CASCADE PLAZA, LLC
Name:
Its:
COMMUNITY DEVELOPMENT
PROPERTIES, ITHACA., INC.
2
By:
Name: Robert W. Davenport
Its: President
j: \staff\nels \iura \city \cayuga green \phase i \cu -cdpi office parking agreement \latest versions of agreement \disengagement agreement draft 12- 14- 11.doc
OFFICE PARKING AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of this (o day of June, 2006., is
0
entered into by and among the CITY OF ITHACA, a municipal corporation organized under
the laws of the State of New York., having its principal office at 108 E. Green Street, Ithaca, New
York 14850 (the "City"), the ITHACA URBAN RENEWAL AGENCY ( "TETRA "), an urban
renewal agency organized under the laws of the State of New York, having its principal office at
108 ED* Green Street, Ithaca, New York 14850, CASCADE PLAZA, PLC, a limited liability
company organized under the laws of the State of New York, having its principal office at 350
Essjay Road, Williamsville, New York 14220 ("Developer"), and COMMUNITY
DEVELOPMENT PROPERTIES ITHACA, INC., a not-for-p'rofit corporation' organized
under the laws of the State of New York, having its principal office at 7'08 Third Avenue, Suite
710, New York, New York 10017 ( "CDP ").
WITNESSETH, 10
WHEREAS, on May 12, 2003, the City, Developer, Tf_TRA. and Cirn.inelli Development
Company, Inc. entered into a certain Sponsor Agreement ("the Sponsor Agreement") regarding
the construction. by Developer of a mixed use 9-story -office, retail and hotel building on land
located at the comer of East Seneca Street and North Tiaga Street in the City of Ithaca,
Tompkins County, New York (the "Downtown Project"); and
WHEREAS, pursuant to Section 4.03(D) of the Sponsor Agreement, Developer and the
City are to enter into a Primary Office Parking Agreement setting P, forth the terms and conditions
regarding the City's obligation to provide parking -for the Office Space (as defined below) upon*
completion of the Downtown Project and the Developer's obligations to complete the project and
to provide for compensation for the City for parking for the Office Space in accordance with the
terms and conditions set forth in the Sponsor Agreement; and
WHEREAS, subsequent to the date of the Sponsor Agreement, the City leased to IURA,
which in turn subleased to SDP, the Existing Green Garage, the Green Street Surface Lot and the
Seneca Garage (as such terms are defined below); and
WHEREAS, the City designated CDP as the developer and operator. of the Cayuga
Garage (as defined below),, and
WHEREAS, Developer, as an accommodation to the City, entered into an Interim Office
Parking Agreement *(the "Interim Agreement") dated Apri1261', 2005, at the request of the City
in order to permit the City time to restructure its tax-exempt financing relating to its municipal
parking garages, which Interim Agreement is valid until June 7, 2006 (unless earlier terminated
as provided herein),
NOW, THEREFORE, in consideration of the foregoing, and of other good and valuable
consideration parties the receipt 4nd sufficiency of which is hereby acknowledged, the hereto
agree as follows:
SECTION I — DEFINITIONS
1.I Capitalized terms shall have the same meanings set forth below.
"Cayuga Garage" means the multi-level parking garage constructed and operated by CDP
on Cayuga Street south of the County Library containing approximately 700 parking spaces,
"Cornell" means Cornell University, the prime tenant of the Office Space.
"Existing Green Garage-" means the existing. City-owned two-level parking garage
containing approximately 450 parking spaces located on the north side of Green Street
immediately east of Ithaca City Hall,
.Green Street Surface Lot" means the existing city-owned surface parking lot located on
the south side of Green Street immediately east of the County Library, provided, however, that if
the Green Street Surface Lot is either sold by the City or leased by the City to a third party
Pursuant to a lease with a term of twenty (20) years or more, and is no longer operated as a
public parking lot, Developer's rights hereunder to use the Green Street Surface Lot shall be
automatically extinguished,
"Index" means the National Consumer Price Index for All Urban Consumers — All Items
(1982-1984 = 100) or, if discontinued, such substitute index, as reasonably determined by the
City, published by the Bureau of Labor Statistics or successor or similar governmental agency as
may then be in existence.,
if "New Green Garage" means the construction as, t * and when completed by or on behalf
of the City of a minimum of 250 paxking- spaces by modifying or replacing the Existing Green
Garage.
A V
"Office Parking Locations" means the following parking locations: Existing Green
Garage, the Green Street Surface Lot, the Seneca Garage and/or the Cayuga Garage,
"Office Space" means the 70,500± net rentable square feet of office space located on
floors two through five, which is leased in whole to Cornell and the 22,460± of additional net
rentable square feet of office space located on floors two through five, and constructed as part of
the Downtown Project.
"Seneca Garage" means the existing City-owned multi-level parking garage with
approximately 450 spaces located at the comer of East Seneca Street and Tioga Street in the
City.
SECTION 2 — CONSIDERATION
2.1 In consideration of the investment by Developer in the Downtown Project and the
resulting enhancement of the City's downtown area and the economic activity and the jobs that
N
the Downtown Project is creating and. the stimulus that the Downtown Project provides toward
the realization of the City's long term goal of increasing tourism and diversifying the economic
base of the City with the resulting economic benefits to the City and its residents, the parties
hereto agree that the price of the parking privileges provided for herein represent the fair market
value of such use.
.SECTION 3 —TERM
3.1 The term of this Agreement shall commence upon the execution of this
Agreement by all parties hereto (the "Commencement Date") and shall expire on August 1. 2025
(the "Term"),
SECTION 4 - PRIMARY OFFICE PARKING PERMITS
4,1 Commencing on the Commencement ]late and throughout the Tenn of this
Agreement, the City shall provide or shall cause to be provided no less than 250 parking permits
to support the Office Space (collectively, the "Primary Office Parking Permits" or "Permits ").
The Primary Office Parking Permits shall be allocated for use in the Office Parking Locations as
follows: (a) up to 40 Permits for use in the Seneca Garage; (b) up to 10.0 Permits for use in any
one or a combination of the Existing Green Garage or the Green Street Surface Lot* and (c) up to
150 Permits in the Cayuga Garage, provided, however, that the City shall not be obligated to
allocate more than 250 Permits to Developer at any one time. Notwithstanding the above, in the
event replacement of the Green Garage is not completed and open to the public prior to the
Commencement Date, the City, subject to the approval of Developer, shall provide the Primary
Office Parking Permits within 'a combination of the remaining Office Parking Locations until
such time as the Green Garage is completed and open to the public,
4.2 on the Commencement Date, and on a quarterly basis thereafter,
Developer shall advise the City (or any third-party parking operator designated by the City by
written notice to Developer), of the actual number of Permits which Will be required to support
the Office Space, including the number of Permits required for handicapped office workers, for
the new succeeding three (3) month period (the "Subscribed Primary Permits "). The Subscribed
Primary Permits shall be 'allocated in the manner described in Section 4.1 above. -
SECTION 5 -RATES
5,1 The monthly rates for a Primary Office Parking Permit during the Tenn of this
Agreement shall be as follows: (a) $45 per month for either the Existing Green Garage or the
Green Street Surface Lot; (b) $40 per month for the Cayuga Garage; and (c) $40 per month for
any parking spaces in the Seneca Garage provided for handicapped employees of the' Office
Space.
5.2 The monthly rate for the Primary Office Parking Permits in the Seneca. Garage
shall at all times during the Tenn of this Agreement be the lowest prevailing monthly rate in
effect for the level of the Seneca Garage to which such Subscribed Primary Permit corresponds,
3
notwithstanding that the prevailing. monthly rate for hotel parking, reduced rates for handicapped
porkers, or another level of the Seneca Garage may be a lower amount,
5.3 The monthly rates set forth above may be adjusted from time to time (the
"Adjustment Date") by the City after August 1, 2006 by applying a multiplier (representing the
percentage increase of the Index), as determined by dividing the Index for the Adjustment Date
by the Index for the first month of the term of this Agreement, with respect to the first such
adjustment, and the Index for the prior Adjustment Date, with respect to all subsequent.
adjustments, however, the new monthly rate shall not exceed the lowest monthly permit rate in
effect for the garage(s) in which the Primary Office Parking is located,
SECTION 6 — PAYMENT
6..1 The Subscribed Primary Permits shall * be sold directly by the City (or its
designated operator) to the -users of such Pen-nits, and the users of such Permits shall pay the City
(or its designated' operators) directly for such Pen-nits. Neither Developer nor Cornell shall
guaranty or be responsible fax the collection or payment of any fees owed by the users of the
Permits. Notwithstanding the above, Cornell shall have the option at any time and from time to'
time to elect to pay the City (or its designated operator) directly for any Subscribed Primary
Permit being used by its employees located at the Office Space.,
SECTION 7 — OPERATION OF OFFICE PARKING LOCATIONS
7.1 The City agrees to make the Office Parking Locations reasonably available to the
holders of the Primary Office Parking Permits twenty-four (24) hours a day., seven (7) days a
week throughout the Term of this Agreement. In the event the City is not able to provide such
parking at all times., the City agrees to provide substitute parking at other locations. The City
agrees to operate and maintain the Office Parking Locations, or if the City retains a third-party
operator, shall cause such third-party operator to operate and maintain the Office Parking
Locations in such a manner so as to ensure the general availability of the requisite number of
parking spaces for the Subscribed Primary Permits. Notwithstanding the foregoing,. the parties
recognize that there may be occasions or special events from time to time when a parking space
may not be available to each and every holder of a Subscribed Primary Permit. Developer
further acknowledges that the City, by entering into this Agreement, is only agreeing to make
available the number of Primary Office Parking Permits described in Section 4.1 above.,, but that
the City is not obligated to reserve or designate specific parking spaces for use by the holders of
such Permits within the Office Parking Locations.
7.2 The City agrees that throughout the Tenn of this Agreement, it shall keep the
Office Parking Locations, or shall cause the Office Parking Locations to be kept, in good order,
repair and appearance.
SECTION 8 —THIRD -PARTY OPERATOR
S.1 0
The City, at its option., may retain a third-party parking operator to operate and
maintain the Office Parking Locations. Any operating agreement between the City and such
M
third-party operator shall expressly 'incorporate the terms of this Agreement. The retention by
the City of a third-party operator shall not operate to release the City from any of its obligations
hereunder,
8.2 It is expressly understood and agreed that CDP was designated by the City to
develop., construct and operate the Cayuga Garage. The City agrees that any written agreement
entered into, or to be entered into with CDP shall expressly incorporate all of the terms and
conditions of this Agreement to the extent that this Agreement applies to the Cayuga Garage,
SECTION 9 — ALTERNATE PARKING
9.1 Following the completion of the Cayuga Garage and the repair and/or
replacement of the Existing Green Garage during periods of construction, repairs or maintenance
of any of the Office Parking Locations, where displacement of all or. a portion of the Primary
Office Parking is necessary, the City agrees, subject to the reasonable approval of Developer, to
p *de alternate parking arrangements for the holders of Primary Office Parking Permits, until
provide
such time as the construction, repairs or maintenance is completed. Notwithstanding the above,
the City warrants and represents that, subject to force majeure, the total duration of any parking
displacement shall not exceed (a) eighteen (1 S) consecutive months and (b) more than thirty-six
(36) total months during the Term of this Agreement.
SECTION 10— RESTRICTIONS
10.1 The parties agree that the Subscribed Primary Permits may be used only by
occupants of the Downtown Project for business purposes, and may not be used for the storage
of motor vehicles for periods in excess of seventy-two (72) consecutive hours.
SECTION 11— SECONDARY OFFICE PARKING PERMITS
11.1 Developer shall have the right, at its option, to purchase from the City (or its
designated operator) up to an additional one hundred fifty (150) parking permits for use by the
occupants of the Office Space ("Secondary Office Parking Permits") within the Office Parking
Locations.
SECTION 12 — ASSIGNMENT
12.1- This Agreement may be assigned by Developer to Cornell and to any successor
owner of the Downtown Project without the consent of the City provided, however, that any such
assignee assumes all of Developer's obligations hereunder, and provided fiu-ther, that no such
assignment shall relieve Developer of any of its obligations hereunder.
12.2 This Agreement may be assigned by the City without the consent of Developer
provided, however, that any such assignee assumes all of the City's obligations hereunder, and
provided further, that no such assignment shall relieve the City of any of its obligations
rovi
here-under.
5
SECTION 13 — DEFAULT
13.1 Should the City (or its successors, assigns, agents or operators) fail to fulfill its
obligations under this Agreement, Developer, after having provided written notice to the City
stating the nature of such default and a reasonable period of time for the City to cure such
default, upon the City's failure to cure such default within -the specified time period, shall have
the right to cure the City's default to the extent that it can. During the period of default by the
City as described in this Paragraph, as partial compensation to Developer for the damages
suffered by Developer as a result of such default, all parking fees in the amounts set forth in this
Agreement shall be abated, and the City shall pay Developer an amount equal to the applicable
monthly rate per permit or space multiplied by the number of permits or spaces attected by the
default. In addition, Developer reserves its right to seek specific performance by the City and its
designated operator.
SECTION 14- NOTICES
14.1 All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly delivered (a) when delivered personally, (b) on the date delivered to a
reputable overnight courier service (e.g., Federal Express, UPS), or (c) three (3) business days
after mailing by United States registered or certified mail, postage prepaid in the United States,
addressed to the respective parties as follows:
if to Developer: Cascade Plaza, LLC
c/o Ciminelli Development Company, Inc.
350 Essjay Road
Williamsville, New York 14221
Attention: Chief Executive Officer
if to the City: City of Ithaca
108 E. Green Street
Ithaca, New York 14850
Attention: Mayor
with copies to: City of Ithaca
108 E. Green Street
Ithaca, New York 14850
Attention.- City Attorney
if to IURA: Ithaca Urban Renewal Agency
108 E. Green Street
Ithaca, New York 14850
Attention: Chair
if to CDP: Community Development Properties Ithaca, Inc.
708 Third Avenue, Suite 710
New York, New York l O
Attention: President
R
or to such other address or party as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address or addressees shall only be
effective upon receipt. For purposes hereof, "Business Day" shall mean any day -other than a
Saturday, a Sunday or a holiday on which banks in the City of Ithaca are permitted or required to
be closed to business,
SECTION 15 — MISCELLANEOUS PROVISIONS
15.1 Weekends and Holidays. If any day for performance under this Agreement falls,
or period for performance ends, on a day not a Business Day, then the time for performance shall
be extended to the next Business Day (as defined in Section 14.1).
15.2- Binding, Effect. The terms and conditions of this Agreement shall be binding
upon, and inure to the - benefit of, the parties hereto and their respective heirs, successors,
permitted assigns, and legal- representatives.
15.3 Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any persons or circumstances shall,, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to persons or
circumstances other than those as to which it has been held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted bylaw.
15.4 Entire A greement; Continuing, Effect. The parties hereto acknowledge and agree
that this Agreement is not intended in any manner to modify, supersede or replace the Sponsor
Agreement, and that Developer, by executing this Agreement, is not waiving any of its rights
under the Sponsor Agreement or agreeing to modify any of the City's obligations under the
Sponsor Agreement
15.5 No Other Parties. The representations, warranties, undertakings and agreements of
the parties contained herein are intended solely for the benefit of the parties hereto to wham such
representations,, warranties, undertakings or agreements are made, shall confer no rights
hereunder, whether legal or equitable, in any other party, and no other party shall be entitled to
rely thereon.
x.5.6 Amendment. This Agreement may not be modified, amended, altered or
supplemented except by written agreement executed and delivered by all of the parties hereto,
15,7 Governing--Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made and to be
performed wholly within said State.
15.8 Waiver. Without limiting the right of any party hereto to deliver to the other an
express waiver in writing of any provision of this Agreement,, the failure of any party hereto to
enforce at any time any of the provisions of this Agreement shall in no way be construed as a
waiver of any of such provisions, or the right of any party thereafter to enforce each and every
7
such provision. No waiver of any breach of this Agreement. shall be held to be a waiver of any
other or subsequent breach,
15.9 Headings,�., Article, Section and Exhibit References. The Section headings used
herein are for reference purposes only and do not control or affect the meaning or interpretation
of any term or provision hereof. All references in this Agreement to Sections are to the Sections
hereof.
15.10 Liability. It is expressly understood and agreed that IURA is executing this
Agreement solely by reason of its leasehold 'interest in the . Existing Green Garage, the Green
Street Surface Lot and the Seneca Garage, but that Developer shall look solely to the City for
performance of all of the City's obligations set forth herein. No recourse shall be had for any
claim based on this Agreement., or any instrument delivered with respect., or pursuant,, to this
Agreement., against (i) any elected official of the State (including, without limitation, the
Governor of the State), (ii) any elected official of IUR.A, the City or the County, (iii) any
director, officer or employee, past, present or future, of the City or the County, or any successor
bodies of any of the foregoing, either directly or indirectly, under any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, or (iv)
ip
any member, employee or manager of Developer. The provisions of this subsection shall survive
the termination or expiration of this Agreement.
15.11 Non-Discrimination. Pursuant to Section 39-1 of the City of Ithaca Municipal
Code., Developer agrees to not discriminate against any employee, applicant for employment,
I
subcontractor, supplier of materials or services or program participant because of actual or
perceived age, creed, color, disability, ethnicity, familial status, gender, height, immigration or
citizenship status, marital status, national - origin, race, religion, sexual orientation, socio-
economic status or weight.
15.12 Termination of Interim A areement. Upon the execution of this Agreement by all
parties hereto, the Interim Agreement shall expire and terminate and shall be of no further force
or effect,
8
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
day and year first above written.
CASC PLAZA, LC
By: Nam
Its: e vv0pe-Nr
CITY OF ITHACA
By:
Name., C yn K. Peterson
Its: Mayor
ITHACA URBAN RENEWAL AGENCY
By:
Name: Carol K. Peterson \�
Its: Chair
COMMUNITY DEVELOPMENT
PR I -�] ES I C.
By:
Name: fir{-}
ItS6 # iiv '�i0J7.;i
9
11-28-11
PARKING AGREEMENT FOR
CAYUGA GARAGE
THIS AGREEMENT (the "Agreement") is entered into by and between CORNELL
UNIVERSITY ("Cornell"), an educational corporation chartered by the State of New York and
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"),
having its principal office at c/o Real Estate Development, Box D13 —Real Estate, Ithaca, New
York 14853 and COMMUNITY DEVELOPMENT PROPERTIES,, ITHACA,, INC. ("CDP-") a not-for-
profit corporation organized under the laws of the State of New York and described in Section
501(c)(3) of the Code, having its principal office at 708 Third Avenue, Suite 710, New York, New
York 10017.
WITNESSETH
WHEREAS,, CDP has constructed and is the owner and operator of an approximately 700
space, multistory public parking garage (the "Garage") on Cayuga Street south of the County
Library in the City of Ithaca, New York (the "City"), and
WHEREAS, C ®P was incorporated for the purpose, among others, "to undertake
activities which lessen the burdens of government", and
WHEREAS,, CDP undertook the construction and operation of the Garage at the specific
request of the City in order to lessen the City's governmental burden to provide needed public
parking in downtown Ithaca; the City having found, declared and determined pursuant to
Resolution 9.5, adopted by the Common Council of the City on July 2,, 2002, that the City
required additional off-site parking which was vital to its economic health, was unable itself to
undertake construction of the Garage, and requested CDP to do so, and
WHEREAS, the City has requested CDP to make available to Cornell up to 150 parking
spaces in the Garage in order to promote the economic health of the City, and
WHEREAS,, Cornell has agreed that the parking spaces would be used only for Cornell's
Section 501(c)(3) purposes, and
WHEREAS., the Garage presently has a relatively low rate of occupancy and therefore
can accommodate Cornell's needs,
NOW THEREFORE, inconsideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, CDP and Cornell
agree as follows:
I
SECTION 1 —TERM
1.1 The Agreement will begin on June 6. 2006, and end on July 31, 2025.
SECTION 2 - PROVISION OF PARKING SPACES
2.1 CDP will provide Cornell with up to 150 parking spaces within the Garage during
the term of the Agreement.
2.2 To the extent that Cornell's need for parking spaces increases during the term of
the Agreement, CDP will use its best efforts to provide Cornell with parking
- spaces, as they are available, in addition to those it has agreed to provide
pursuant to Section 2.1
2.3 No parking spaces provided by CDP to Cornell pursuant to this Section 2 will be
designated or reserved.
SECTION 3- NOTIFICATION OF NEEDS
3.1 Beginning on June 6, 2006, and on the first business day of each calendar quarter
thereafter, Cornell will notify CDP of the number of parking spaces within the
Garage that it will need for that calendar quarter pursuant to Section 2.1.
3.2 Requests, if any, for additional parking spaces pursuant to Section 2.2, will also
be made by Cornell on the first business day of a calendar quarter.
3.3 Each notification made pursuant to Sections 3.1 and 3.2 must include the name
and address of each individual to whom Cornell has allocated one of the parking
spaces CDP is providing to Cornell, and indicate the number of parking spaces, if
any, Cornell has allocated to itself. Cornell agrees not to allocate a parking space
to itself or to any individual unless that allocation furthers the tax-exempt
purposes of Cornell. Further, the allocated spaces must be used for parking and
not the storage of motor vehicles, so that no motor vehicle may be parked for a
period in excess of seventy two (72) consecutive hours.
SECTION 4 - PAYMENT
4.1 Except with respect to parking spaces that Cornell has allocated to itself or has
otherwise agreed to pay for, each individual to whom a parking space has been
allocated by Cornell must pay for that space within five (5) business days after
the beginning of each month. Any individual who has not made timely payment
will thereafter be prohibited from parking in the Garage until he or she has made
arrangements for future timely payments satisfactory to CDP. Such
arrangements may include payment of any unpaid balance and the provision of a
2
credit card for future payments. Cornell may re-allocate any forfeited parking
space to another individual. Cornell will not be responsible for any unpaid
balance by an individual for the month in which payment failed to be made or
for any other fees in connection with any parking spaces other than any that
Cornell has allocated to itself or has otherwise agree to pay for.
4.2 Payment must be made by an individual or by Cornell in cash, valid check, credit
card or, in the case of Cornell also by wire transfer, to the office designated by
CDP pursuant to Section 8.1 from time to time.
SECTION 5 - RATES
5.1 The initial monthly rate for a parking space in the Garage for 2012 is $
(Note: add 2012 rate set by BPW at 12114111 meeting)
5.2 CDP may adjust the monthly rate effective as of the first day of a calendar
quarter. The adjustment may be made by notice to Cornell given not less than
thirty (30) business days prior to the beginning of the calendar quarter for which
the new rate is to be effective.
5.3 No new rate may exceed the rate determined by applying a multiplier
determined by use of the National Consumer Price Index for All Urban
Consumers —All Items (1982-1984 = 100) (the "Index,") or if discontinued, such
substitute index, as reasonably determined by CDP, published by the Bureau of
Labor Statistics or successor or similar governmental agency as may then be in
existence.
5.4 For the first such adjustment, the multiplier (representing the percentage
increase of the Index) will be determined by dividing the latest available Index
prior to the date on which the adjustment is to become effective by the Index for
August 1, 2011. Each subsequent adjustment will be determined by using the
latest available Index prior to the date on which the adjustment is to become
effective and the Index used for the most recent previous adjustment.
5.5 Despite the foregoing, no monthly rate under the Agreement may exceed the
lowest monthly permit rate in effect for the Garage except as may be agreed to
in writing by Cornell or an individual to whom Cornell has allocated a parking
space under this Agreement.
SECTION 6 - OPERATION OF GARAGE
6.1 CDP currently provides one or more attendants to operate the garage from 6:30
a.m. until 8:00 p.m. each weekday, and leaves up the Garage access gates at
other times. In the event that CDP decides to automate the Garage gates or
make any other significant change in its current operation of the Garage, it will
3
consult with Cornell prior to making such change to assure Cornell that it and the
individuals to whom it has allocated a parking space are not inconvenienced
thereby.
6.2 CDP will keep the Garage in good order, repair and appearance, as required by
the Indenture pursuant to which tax-exempt bonds were issued to finance
construction of the Garage.
SECTION 7 — DEFAULT
7e1 If CDP fails to fulfill any of its obligations under the Agreement, Cornell, will
provide written notice to CDP stating in detail the nature of each obligation not
fulfilled and will provide a reasonable period of time for CDP to fulfill each such
obligation. If CDP fails to fulfill any such obligation within the reasonable period
of time so provided, Cornell may exercise any or all of the following remedies: (i)
Cornell may fulfill each such obligation to the extent that it can; (ii) Cornell may
sue to compel specific performance of each such obligation of CDP under the
Agreement; (iii) all parking fees due under the Agreement from Cornell and/or its
employees that are affected by the failure to fulfill an obligation will be abated
each full month from the expiration of the reasonable period of time until each
such obligation is fulfilled; (iv) CDP will promptly pay to Cornell an amount equal
to the parking fees abated pursuant to (iii) above.
SECTION 8 - NOTICES
8.1 All notices and other communications hereunder must be in writing and will be
deemed to have been duly delivered (a) when delivered personally, (b) on the
date delivered to a reputable overnight courier service (e.g., Federal Express,
UPS) or three (3) business days after mailing by United States registered or
certified mail, postage repaid in the United States, addressed to the respective
parties as follows:
If to Cornell,, Cornell University Real Estate
P.O. Box DH — Real Estate
Ithaca, New York 14853
Attention: Director
and Office of University Counsel
Cornell University
300 CCC Building
Ithaca, New York 14853
Attention: University Counsel
If to CDP, National Development Council
708 Third Avenue, Suite 710
4
New York, New York, 10017
Attention: President
8.2 Despite the foregoing, a notice of change of address will be effective only upon
receipt. A business day throughout the Agreement means any day other than a
Saturday, Sunday or a holiday in which banks in the City of Ithaca are permitted
or required to be closed to business.
SECTION 9 - MISCELLANEOUS
9.1 Weekends and Holidays. If any day for performance under the Agreement
falls, or a period for performance ends, on a day not a business day as defined in
Section 8.2, then the time for performance will be extended to the next business
day.
9.2 Binding Effect.The terms and conditions of the Agreement will be binding upon
and inure to the benefit of, Cornell, CDP, and their respective heirs, successors,
permitted assigns, affiliates, and legal representatives.
9.3 Partial Invalidity. If any term or provision of the Agreement is determined to
any extent to be invalid or unenforceable, the remainder of the Agreement will
not be affected thereby and will be valid and enforceable to the fullest extent
permitted by law.
9.4 Entire Agreement. The Agreement constitutes the entire agreement of
Cornell and CDP regarding the subject matter of the Agreement.
9.5 No Other Parties. The representations, undertakings and agreements of
Cornell and CDP herein are intended solely for the benefit of Cornell and CDP
between whom they were made, and no other party is entitled to any legal or
equitable rights hereunder or is entitled to rely upon them.
9.6 Amendment. The Agreement may not be modified, amended, altered or
supplemented except by written agreement executed and delivered between
Cornell and CDP.
9.7 Waiver. Without limiting the right of either Cornell or CDP to deliver to the
other an express waiver in writing of any provision of the Agreement, the failure
of either to enforce at any time any provision of the Agreement will not be
construed as a waiver of that provision or the right thereafter to enforce that
provision. No waiver of a provision of the Agreement will be construed as a
waiver of any other provision or a subsequent breach of the waived provision,
unless the waiver so provides.
5
9.8 Governing Law. The Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
made and to be performed wholly within the State of New York.
IN WITNESS WHEREOF, the parties are executing this Agreement on this
day of 1 2012, and agree to treat this Agreement as
having been in effect since June 6, 2006, thereby correcting a mutual mistake
and giving effect to the original intention of the parties hereto.
CORNELL UNIVERSITY
All
Name:
Title:
COMMUNITY DEVELOPMENT
PROPERTIES., ITHACA, INC.
By:
Name: Robert W. Davenport
Title: President
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