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Home My WebLink AboutAgreement APPLICANT 10/26/2006 . CITY OF SPRINGFIELD- STORMWATER TREATMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT AND GRANT OF EASEMENT This Stormwater Treatment Facilities ("Bioswaie and Detention Pond") Long Term Maintenance Agreement ("Agreement"), Grant of Easement and associated Deed Restrictions are entered into this day of October, 2006 by and between the City of Springfield, a municipal corporation ofthe state of Oregon, ("City") and SunTrust Land Company, LLC, a Oregon Domestic Limited Liability Company ("Property Owner"). RECITALS WHEREAS, under the provisions of the Federal Ciean 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 stormwater 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 storm water 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 MountainGate Phase 4 Tentative Plan approval, reference SUB2003-00062 and Subdivision Plat approval. After Recording Return to: Place Bar Code Sticker Here City of Springfield Public Works Department 225 Fifth Street Springfield, OR 97477 Attn: Engineering Division Date Received: Planner: 1 I o-f 7 ~ Arf C;WdJdz M/? /0Ie/o? . . .' WHEREAS, Property Owner is the title-holder of real property commonly known as MountainGate West, recorded , 2006, Document No. 2006- , Lane Coanty Deeds and Records, in Lane County, Oregon, upon which the Bioswale and Detention Pond located within Tract "C", as generally depicted in the As-Builts and the Public Improvement Plans of Public Improvement Project Plan #P30402; and WHEREAS, the on-site ,Bioswale and Detention Pond 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 WHEREAS, City and Property Owner agree that the health, safety and welfare of the City's citizens require the Bioswale and Detention Pond and water quality swales to be constructed and maintained on Property (Tract "C" of Mountain Gate West) as more particularly described in the Subdivision Construction Plan and As-Builts; and WHEREAS, Property Owner recognizes the Bioswale and Detention Pond as located within Tract "C" of Mountain Gate West, 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. NOW, THEREFORE, the construction, operation and maintenance of the Bioswale and Detention Pond shall be regulated by the mutual covenants set forth herein, Property Owner and City agree as follows: SECTION 1: CONSTRUCTION RESPONSIBILITY - PROPERTY OWNER The Bioswale and Detention Pond as shown on the Public Improvement Project Plan and As- Builts shall be constructed or cause to be constructed by Property Owner. SECTION 2: SPECIFIC OPERATION AND MAINTENANCE RESPONSILITY 2.1. CITY A) City shall endeavor to maintain the Bioswale and Detention Pond in a manner that allows the Bioswale and Detention Pond to continue to operate and perform the functions for which they were 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 endeavor to maintain the Bioswale and Detention Pond for operation necessary to assure the proper functioning of the Bioswale and Detention Pond 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 normal operation of the Bioswale and Detention Pond and Department of Environmental Quality mandated pollution abatement in order to protect the City-wide storm water system. City will not accept responsibility for landscaping for aesthetic purposes or other amenities Property Owner may locate within the Bioswale and Detention Pond. C) Except as specified in Subsection 2.1, City shall have no responsibility for maintenance or safety of the Bioswale and Detention Pond. 2 . . ,0 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 Owner and Property Owner's heirs, successors, and assigns, including any subsequent Homeowners' Association 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 Bioswale and Detention Pond to provide stormwater drainage or water quality management for MountainGate Phase 4 Subdivision (P30402). B) Install and maintain trees and other plants in and along the Bioswale and Detention Pond 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 Bioswale and Detention Pond 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 Bioswale and Detention Pond in accordance with City requirements; and replace vegetation as may be required by City in order to maintain the Bioswale and Detention Pond functionality. E) Remove any garbage and litter in the Bioswale and Detention Pond. F) Not apply or dump pesticides, herbicides, fertilizers, petroleum-based products or other hazardous or foreign substances in the Bioswale and Detention Pond. 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 Bioswale and Detention Pond as well as the adjacent access easement, if any, and the private property burdened by the Bioswale and Detention Pond 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 in a timely manner on the Bioswale and Detention Pond as described in Section 3. . K) Perform other maintenance requirements as necessary to ensure the proper functioning of the Bioswale and Detention Pond. 3 . . SECTION 3: GRANT OF EASEMENT - ACCESS TO THE BIOSWALE AND DETENTION POND In further consideration of the obligations undertaken by City in Section 2.1, 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 Bioswale and Detention Pond located in Tract "Cn. 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 employees to enter upon Property at reasonable times and in a reasonable manner to inspect, assess or observe the Bioswale and Detention Pond. 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 stormwater 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 without 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 S: CHANGES AND MODIFICATIONS TO THE BIOSWALE AND DETENTION POND City may make such adjustments, modifications and changes to the Bioswale and Detention Pond as City deems necessary to accomplish any requirements under Section 2.1. Property Owner shall not make changes or modifications to the Bioswale and Detention Pond 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 Bioswale and Detention Pond. 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, iosses, 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 Bioswale and Detention Pond. 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 ciaims 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. 4 . . <, SECTION 7: AGREEMENT RUNS WITH THE LAND This Agreement, Grant of Easement and Deed Restrictions are perpetual and shall run with the land and shall be binding upon all Property Owners' heirs, successors, and assigns including, but not limited to all members of any subsequent Homeowners' Association of MountainGate Subdivision. SECTION 8: SEVERABILITY 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 BXOSWALE AND DETENTION POND In the event City, in its discretion, determines the Bioswale and Detention Pond located on Property are no ionger required, then City may, at the request of Property Owner, execute a release of this Agreement, which Property Owner may record in the Lane County Recorder's Office at Property Owner's expense. The Bioswale and Detention Pond 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 at the 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. 5 . . " IN WITNESS WHEREOF, the named Property Owner(s) have hereunto set their hands and seals, this 25Nay of OCiO~i7 , 2006. . SunTrust Land Company, LLC . ~ < ~---- ~BY: Mark Vukanovich, Member ~ \ -/ STATE OF OREGON COUNTY OF /J.,J ~ BE IT REMEMBERED that on this day of ,2006 before me, the undersigned, a notary public in and for said County an State, perso ally appeared the within named 100 Whose;identity was proved to me on the basis of satisfactory evidence and who by me duly sworn, did say that I:-t r-- is/are the M E;IJ..'f;~f of the within named Corporation and does acknowledge 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 8.. '."... . \..:~..../ ~ OFFICIAL SEAL LLOYD L. TOLBERT . NO},~~.Y!.~auc. DREG r:,.--.,..f..,..t'lt.l.'n _ ON "," I" . ~.(i-:ltne IN TESTIMONY WHEREOF, I have hereunto s.et my hand and affixed last above written. (<'c,> . "I~i~;,,~.;,,: OFFICIAL S=^L :::1\4",' /j~i"\V ~ '.~~: ~ f'II"'":,-';"\'" D L. TOl8E;::<r ,;.... u,ARY PUBLIC. ORE" COMMISS CON MY COMMISSION EXp ION NO. 4054{)6 IRES JUNE 4, 2010 6 .. . .1 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 By: Date Dan E. Brown, Pubiic Works Director STATE OF OREGON COUNTY OF BE IT REMEMBERED that on this day of ,2006 before me, the undersigned, a notary pubiic in and for said County and State, personally appeared the within named Whose identity was proved to me on the basis of satisfactory evidence and who by me duly sworn, did say that is/are the of the within named Corporation and does acknowledge said instrument to be the free act and deed of said Corporation, and that the seai 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. Notary Pubiic for Oregon My Commission Expires 7