HomeMy WebLinkAboutEasement APPLICANT 7/9/2010
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CITY OF SPRINGFIELD
STORMWATER TREATMENT FACILITIES OPERATION AND
MAINTENANCE AGREEMENT AND GRANT OF EASEMENT
This StormwaterTreatment Facilities ("Water Ouality Swales/Detention Ponds") Operation
and Maintenance Agreement ("Agreement") and Grant of Easement is entered into this
Ic}.f\. day of lJAay . 2010 by and between the City of Springfield, a municipal
corporation of the state of Oregon, ("City") and Breeden Bros.. rnc.. (Property Owner").
RECITALS
WHEREAS, under the provisions of the Federal Clean Water Act, City is required to
meet the requirements of the National Pollution Discharge Elimination System program
(NPDES) by obtaining a NPDES Municipal Separate Stormwater Sewer System (MS4)
Stormwater Discharge Permit and developing and maintaining a storm water management plan;
and
WHEREAS, the NPDES MS4 stormwater discharge permit program, as it may be
amended or reissued, requires City to ensure adequate long-term operation and
maintenance of Best Management Practices (BMPs) designed to ensure water quality for
stormwater runoff from a site; and
WHEREAS, the Willamette River and the McKenzie River in the vicinity of the City of
Springfield have been identified by the State of Oregon as being out of compliance with state
water quality standards (303(d) listed streams); and
WHEREAS, City has pending Total Maximum Daily Load (TMDL) limitations for its
stormwater discharges to the Waters of the State and the Waters of the United States under the
federal Clean Water Act (CWA); and
WHEREAS, the CWA mandates that MS4 dischargers employ stormwater BMP's to the
maximum extent possible (MEP) when the receiving waters are not in compliance with state
water quality standards; and
WHEREAS, the Springfield Common Council established City policy relating to the
operation and maintenance of privately-owned stormwater management facilities which
provide public stormwater management functions, specifically Chapter 3.01 of the City's
Engineering and Design Standards and Procedures Manual, as may be amended; and
WHEREAS, the City granted River Heiqhts Subdivision Tentative Plan approval,
reference SUB2006-00006 and Subdivision Plat approval, reference PRE2009-00021.
After Recording Return to:
Division of Chief Depuly Clerk
Lane Counly Deeds and Records
l~I~.~J~Jlo
City of Springfield
Public Works Department
225 Fifth Street
Springfield, OR 97477 Attn:
Engineering Division
1111111111111111111111111111111111111111I1" I111I $112.00
0115703220100030316007010606/29/201009:03:15 AM
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$5.00 $50.00 $20.00 $10.00 $11.00 $16.00
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WHEREAS, Property Owner is the title-holder of real property commonly known as
an eas~ent encumbering Tract A of River Heiqhts Subdivision. as recorded on
29 OCn? . 2010 in the Land Subdivision Plat records of Lane County, State of Oregon
and f,kJ w c.s. nIL: r h ~ as shown as EXHIBIT A, upon which the Water Oualitv
Swales/Detention Ponds. is located or to be constructed, as generally depicted in
EXHIBIT B, Public Improvement Project Plan #P30520; and~R~G.~ -<0/0 -.?o30 9
WHEREAS, the on-site Water Oualitv Swales/Detention Ponds required by City's
Stormwater Management Plan shall be designed and constructed in accordance with the
City's Engineering and Design Standards and Procedures Manual; and
WH EREAS, City and Property Owner agree that the health, safety and welfare of the
City's citizens require the Water Oualitv Swales/Detention Ponds to be constructed and
maintained on Property as more particularly described in the Subdivision Construction Plan and
shown in EXHIBIT B; and
WHEREAS, Property Owner recognizes the Water Oualitv Swales/Detention Ponds as
more particularly described and shown in EXHIBIT B, of which full-scale plans and any
amendments thereto are on file with the Engineering Division of City shall be installed and
maintained as indicated in this Agreement and as required by the NPDES MS4 stormwater
discharge permit program.
WHEREAS, the City and property owner agree that the construction, operation and
maintenance of the Water Oualitv Swales/Detention Ponds shall be regulated by the mutual
covenants set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals which are expressly
incorporated herein, the property owner and City agree as follows:
SECTION 1: CONSTRUCTION RESPONSIBILITY - PROPERTY OWNER
The Water Oualitv Swales/Detention Ponds as shown on the Public Improvement Project Plan
as more particularly described and shown in EXHIBIT B shall be constructed or cause to be
constructed by Property Owner, at property owner's expense.
SECTION 2: SPECIFIC OPERATION AND MAINTENANCE RESPONSIBILITY
2.1. CITY
A) City shall reasonably endeavor to maintain the Water Oualitv Swales/Detention Ponds in a
manner that allows the Water Oualitv Swales/Detention Ponds to continue to operate and
perform the functions for which it was designed in order to attain compliance with the
NPDES MS4 stormwater discharge permit program and City's Engineering and Design
Standards and Procedures Manual.
B)
City shall reasonably endeavor to maintain the Water Oualitv Swales/Detention Ponds
for operation necessary to assure the proper functioning of the Water Oualitv
Swales/Detention Ponds to provide stormwater drainage and/or water quality
management to multiple private properties. City understands such endeavors may
include removing sediment accumulation resulting from the nonmal operation of the
Water Oualitv Swales/Detention Ponds and Department of Environmental Quality
mandated pollution abatement in order to protect the City-wide stonm water system.
City will not accept responsibility for landscaping for aesthetic purposes or other
Date Received:
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amenities Property Owner may locate within the Water Oualitv Swales/Detention
Ponds.
C) Except as specified in Subsection 2.1, City shall have no responsibility for maintenance or
safety of the Water Qualitv Swales/Detention Ponds.
D) Any City responsibilities delineated in Subsection 2,1 are subject to the availability and
appropriation of funding as determined by the sound discretion of the of the Springfield
Common Council as set forth in Section 12.
2.2. PROPERTY OWNER
In carrying out these maintenance obligations, Property Qwner and Property Owner's heirs,
successors, and assigns are not agents, employees, volunteers or officials of City. In
consideration of the City's maintenance responsibilities as set forth in Subsection 2.1, A)-D),
Property Owner shall:
A) Not compromise the proper functioning of the Water Qualitv Swales/Detention Ponds to
provide stormwater drainage or water quality management for River Heiohts Subdivision
(P30520).
B) Install and maintain trees and other plants in and along the Water Qualitv
Swales/Detention Ponds as conditioned in the Subdivision Tentative Plan and in
accordance with the City's Engineering Design Standards and Procedures Manual.
C) Incorporate the following mowing methods that shall be used if the vegetation in the
Water Qualitv Swales/Detention Ponds requires mowing: a push type power mower; a
riding mower with high flotation tires or another method approved in writing by City.
D) Remove and dispose of dead vegetation and cuttings, including grass cuttings, from the
Water Qualitv Swales/Detention Ponds in accordance with City requirements; and replace
vegetation as may be required by City in order to maintain Water Qualitv
Swales/Detention Ponds functionality.
E) Remove any garbage and litter in the Water Qualitv Swales/Detention Ponds.
F) Not apply or dump pesticides, herbicides, fertilizers, petroleum-based products or other
hazardous or foreign substances in the Water Qualitv Swales/Detention Ponds.
G) Be subject to all nuisance provisions of the Springfield Municipal Code, including the
control of noxious weeds and vegetation and the removal of litter and debris, except as
necessary for the proper functioning of approved vegetation for the Water Qualitv
Swales/Detention Ponds. the Water Qualitv Swales/Detention Ponds as well as the
adjacent access easement, if any, and the private property burdened by the Water Qualitv
Swales/Detention Ponds and access easements
H) Submit a copy of as-constructed plans of the stormwater system to City upon
completion of construction.
I) Pay real property taxes on the real property underlying the easement on the Water
Quality Swales/Detention Ponds in a timely manner as described in Section 3.
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J) Perform other maintenance requirements as necessary to ensure the proper functioning of
the Water Ouality Swales/Detention Ponds. .
SECTION 3: GRANT OF EASEMENT - ACCESS TO THE WATER OUALITY
SWALES/DETENTION PONDS
In further consideration of the obligations undertaken by City in Section 2A, Property Owner
hereby grants to City a perpetual, non-exclusive easement located as shown on the Plat for
the purpose of access to and maintenance of the Water Ouality Swales/Detention Ponds
located on Tract A of River Heiqhts Subdivision as described in Exhibit C.
SECTION 4: CITY INSPECTION
City may make periodic inspections necessary to accomplish any City requirements under
Section 2.1 and to review Property Owner compliance with Section 2.2. Property Owner hereby
grants permission to City and authorized agents and employ~es to enter upon Property at
reasonable times and in a reasonable manner to inspect, assess or observe the Water Ouality
Swales/Detention Ponds. This includes the right to enter upon Property without notice when
City has a reasonable basis to believe that a violation of this Agreement, City's Engineering
Design Standards and Procedures Manual, the NPDES MS4 storm water discharge permit
program including any amendments or re-issuances of this program, or the Springfield
Development or Springfield Municipal Codes is occurring, has occurred, or threatens to occur.
City also has a right to enter Property vitithout notice when necessary for abatement of a public
nuisance or correction of a violation of the authorities listed above. Upon inspection of the
facility, City will notify Property Owner in writing of any noted conditions, or practices that are
not in compliance and will specify a time frame for corrective actions.
SECTION 5: CHANGES AND MODIFICATIONS TO THE WATER OUALITY SWALES
City may make such adjustments, modifications and changes to the Water Ouality
Swales/Detention Ponds as City deems necessary to accomplish any requirements under
Section 2.1. Property Owner shall not make changes or modifications to the Water Ouality
Swales/Detention Ponds without written approval and required permits from the City prior to
grading, filling, piping, cutting or removing, except for routine and minor landscape
maintenance as specified in Section 2.2 or performing any alterations or modifications to the
Water Ouality Swales/Detention Ponds.
SECTION 6: INDEMNIFICATION
Property Owner shall defend, indemnify, and hold harmless City and its authorized agents,
officers, officials and employees from and against any and all claims, demands, suits, damages,
liabilities, losses, accidents, casualties, occurrences, claims and payments, including attorney
fees claimed or which might arise or be asserted against City that are alleged or proven to result
or arise from the construction, presence, existence or maintenance of the Water Ouality
Swales/Detention Ponds. In the event a claim is asserted against City, its authorized agents,
officers, officials or employees, City shall promptly notify Property Owner and Property Owner
shall defend, at its own expense, any suit based on such claim. If any judgment or claims
against City, its authorized agents, officers, officials or employees shall be allowed, Property
Owner shall pay for all costs and expenses in connection thereto. This Section shall not apply to
any claims, demands, suits, damages, liabilities, losses, accidents, casualties, occurrences,
claims and payments, including attorney fees claimed which arise due solely to the negligence or
willful misconduct of City. Nothing herein shall be deemed a waiver by City of the requirements
of the Oregon Governmental Tort Claim Act in ORS 30.260 through ORS 30.300. C/ ,)..
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n'ilte Received.
Planner: SH
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SECTION 7: AGREEMENT RUNS WITH THE LAND
This Agreement and Grant of Easement is perpetual and shall run with the land and shall be
binding upon all Property Owners' heirs, successors, and assigns.
SECTION 8: SEVERABILITY
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The provisions of this Agreement shall be severable and if any phrase, clause, section,
subsection, paragraph, subdivision, sentence or provision is adjudged invalid or
unconstitutional by a court of competent jurisdiction, or the applicability to any Property Owner
is held invalid, this shall not affect or invalidate the remainder of any phrase, clause, section,
subsection, paragraph, subdivision, sentence or provision of this Agreement.
SECTION 9: RECORDATION OF AGREEMENT
This Agreement shall be recorded in the Lane County Recorder's Office by Property Owner at
Property Owner's expense and a copy of the recorded document shall be provided to City.
SECTION 10: RELEASE OF AGREEMENT AND REMOVAL OF THE WATER OUALITY
SWALES/DETENTION PONDS
In the event City, in its discretion, determines the Water Quality Swales/Detention Ponds
located on Property is no longer required, then City may, at the request of Property Owner,
execute a release of this Agreement, which Property Qwner may record in the Lane County
Recorder's Office at Property Owner's expense. The Water Quality Swales/Detention Ponds
shall not be removed from Property by Property Owner unless such a release is so executed
and recorded in the Lane County Recorder's Office by Property Owner at Property Owner's
expense.
SECTION 11: EFFECTIVE DATE AND MODIFICATION OF AGREEMENT
The effective date of execution is as stated aUhe beginning of this Agreement. Except as
specified in Section 12, this Agreement shall not be modified except by written instrument
executed by City and Property Owner at the time of modification. Such modification shall be
effective upon the date of execution and shall be recorded.
SECTION 12: TERMINATION OF AGREEMENT
In the event that Springfield Common Council determines, in its sole discretion, that due to
budgetary or financial issues and constraints, City cannot continue to provide the services
described in Section 2.1, City may terminate this Agreement upon such a Resolution by
Springfield Common Council and the filing of such Resolution in the Lane County Recorder's
Office. Further, in the event of such a Resolution by City, Property Owner, Property Owner's
heirs, successors, and assigns and any Home Owner's Association shall be responsible for
fulfilling all requirements of Sections 2.1 and 2.2.
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Date Received:
Planner: SH
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IN WITNESS HEREOF, the named Property Owner(s) have hereunto set their hands and seals,
this~dayof MAl.{ ,2010.
_ 7:9PERTY OWNER(S)
'1;t( Vt~ lvh ~ (SEAL)
Robert L. Breedon, President
Breedon Bros., Inc.
(SEAL)
(SEAL)
(SEAL)
I) OFFlClALSEAL
. '" KATRlNA ANTONETTE KING
STATE OF OREGON , ) ss. \, ;". NOTARY PUBUG-OREGON
COMMISSION NO. 409560
COUNTY OF LAN~ ), MY COMMISSION EXPIRES AUG. 31, 2010
-,...-~--~-'._-
BE IT REMEMBERED that on this J \ th day of M ft'{ , 2010, before me, the
undersigned, a notary public in and for said County and State, personally appeared the within
named K'.bP;E'Rr k. "6eEe De N whose identi~s proved
to me on the basis of satisfactory evidence and who by me duly sworn, did say tha~he is the
__PRBSiN':NT of the within named Corporation and does acknowiedge said ,'" "
instrument to be the free act and deed of said Corporation, and that the seal affixed to said
instrument is the Corporate seal of said Corporation, and that said instrument was signed and
sealed in behalf of said Corporation by authority of its Board of Directors.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
Public for Oregon
mission Expires:
STATE OF OREGON ) ss.
COUNTY OF )
BE IT REMEMBERED that on this day of . 2010, b e me, the
undersigned, a notary public in and for said County and State, personall pea red the within
named whose identity was proved
to me on the basis of satisfactory evidence and who by me dul om, did say that he/she is the
of the within named Corporation and es acknowledge said
instrument to be the free act and deed of said Corpor . n, and that the seal affixed to said
instrument is the Corporate seal of said Corporati ,and that said instrument was signed and
sealed in behalf of said Corporation by auth . of its Board of Directors.
IN TESTIMONY WHEREOF, I have eunto set my hand and affixed my official seal the day and
year last above written.
Notary Public for Oregon
My Commission Expires:
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Planner: SH
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This conveyance set forth in this instrument conveying interest to the City of Springfield, a Municipal
Corporation of the State of Oregon, is hereby approved and the interest conveyed therein is hereby
accepted.
CITY OF SPRINGFIELD
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By: usan srr/itIi, ublic Works Director
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Date
STATE OFOREGON ) ss. '
COUNTY OF Lllne. ) ,
.,. ..
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BE IT REMEMBERED that on this 7 day of~ 2010, before me, the
undersigned, a notary public in and for said County and State, ~rsonally appeared the within named
Susan Smith whose identity was proved to me on the basis of satisfactory evidence and who executed
the within instrument and acknowledged to me that he executed the same freely and voluntarily.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
last a
OFFICIAL SEAL
DEANNA M MARTIN
NOT AAY PUBUC-OAEGON
COMMISSION NO, 448297
MY COMMISSION EXPIRES APRIL 19, 2014
(J 111.N\.A JJ . AJ~
Notary Public for Oregon .
My Commission Expires: ~ 19,J.INcj
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EXHIBIT "c"
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TRACT "A" OF THE PLAT RECORDED AS~.. I i. 4~f" 20/0 - 303cP' ,
FILE DATE 29 a;;,. 20-0 , LANE COUNTY RECORDS, LOCATED IN THE CITY OF
SPRINGFIELD, LANE COUNTY, OREGON.
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Date Receive '
Planner: SH