Item #18 - O_M Agmt_HOA _Template

STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
STORMWATER OPERATION AND
MAINTENANCE AGREEMENT AND
GRANT OF EASEMENT
THIS STORMWATER OPERATION AND MAINTENANCE AGREEMENT is
made and entered into this day of , 201, pursuant to the Post -Construction
Ordinance, Chapter 75, Article IV of the City Code of the City of Winston-Salem, by and among
the City of Winston-Salem (hereinafter, the "City"),
(hereinafter, the "Developer"), and (hereinafter, the
"Association"), for the benefit of the City of Winston-Salem (the City, the Developer, and the
Association, hereinafter, collectively, the "Parties").
RECITALS:
A. WHEREAS, the Developer wholly owns certain land lying within the city limits of
Winston-Salem described in Exhibit A attached hereto (the "Property"), and upon which
Developer intends to construct improvements; and
B. WHEREAS, the development of the Property will require the construction of one
or more —stormwater management control structures and associated conveyance systems, as
necessary, and in accordance with approved plans, specifications, and the Operation and
Maintenance Manuals ("Stormwater Control System"), to serve the Property; and
C. WHEREAS, the Developer has applied to the City for the issuance of a Stormwater
Management Permit ("Permit"), which will allow Developer to construct, maintain, and operate
the Stormwater Control System; and
D. WHEREAS, after the completion of the construction and approval by the
Stormwater Director of the as -built records of all of the Stormwater Control System, the Developer
will convey the operation and maintenance of the Stormwater Control System to the Association;
and

E. WHEREAS, the City desires to ensure that the Stormwater Control System is
properly constructed, maintained, and operated in accordance with the Permit and all other
applicable ordinance provisions, and, therefore, requires the execution of this Agreement by
Developer and Association prior to issuance of a Permit.
NOW, THEREFORE, in consideration of the benefits to be derived by the Developer in
obtaining the Permit and developing the Property and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Developer does hereby agree as
follows:
1. Generally. Developer shall construct the Stormwater Control System in accordance
with the Permit and the plans and specifications for the Stormwater Control System, as approved
by the City and shall, thereafter, operate and maintain the Stormwater Control System in
accordance with the Permit, the plans and specifications, the Operation and Maintenance
Manual(s), and all applicable law until such time as the Permit has been reissued to the Association.
Once the Permit has been reissued to the Association, the Association shall, thereafter, operate and
maintain the Stormwater Control System in accordance with the Permit, the plans and
specifications, the Operation and Maintenance Manual(s), and all applicable law.
2. Transfers. Developer agrees that it shall not transfer ownership and/or control of
the Stormwater Control System until construction has been finally completed in accordance with
the Permit, a certified set of as -built plans and records of the system submitted to the Stormwater
Director for review, the Stormwater Director has approved the completed construction and as -built
records, the Developer complies with submittal of all annual inspection reports, and all current and
future phases of the subdivision which constitutes the Property or of which the Property will be a
part have been constructed and transferred to the Association. Developer will promptly notify the
Stormwater Director when construction of the Stormwater Control System is finally complete and
submit to the Stormwater Director a certified set of as -built plans and records which verify the
system is built and operating as designed. Once the construction of the Stormwater Control System
has been approved, the Developer complies with submittal of all annual inspection reports, and all
current and future phases of the subdivision which constitutes the Property or of which the Property
will be a part have been constructed and transferred to the Association, the City shall reissue the
Permit to the Association, at which time the Developer shall be released from any obligations
hereunder arising from events or circumstances occurring after the date the Stormwater Control
System is transferred and the Permit is reissued. Developer shall remain responsible for the
operation and maintenance of the Stormwater Control System until the Permit has been reissued
to the Association. If the Association, thereafter, desires to transfer ownership/and/or control of
the Stormwater Control System, the Association and the proposed transferee shall first request that
the Permit be re -issued to the proposed transferee.
3. Construction of the Stormwater Control System_ If the Developer, for any reason,
or at any time, fails, within thirty (30) days after receiving written notice, to finally complete
construction, operate, or maintain the Stormwater Control System, as required by the Operation
and Maintenance Manual(s), the plans and specifications, this Agreement, or the Permit, prior to
conveying control to the Association, the City may complete such construction or perform such
maintenance, and the Developer, hereby, agrees to pay the City or other governmental authority
all reasonable costs incurred, thereby. As security for the payment of these costs, Developer agrees,
prior to the issuance of the Permit, to: 1) establish an escrow account, together with the
Association, which will be used by the Developer and the Association for the operation, inspection,
maintenance, repair, and reconstruction of the Stormwater Control System (hereinafter, the
"Escrow Account") and 2) to pay a sum equal to fifteen percent (15%) of the cost of the Stormwater
Control System's construction into the Escrow Account, from which the City must approve any
release of funds. The amount of the Developer's payment into the Escrow Account will be

calculated in accordance with guidelines issued by the Stormwater Director and/or the City
Council. Developer also, hereby, grants and conveys to the City a lien on all phases of the
subdivision which constitutes the Property or of which the Property will be a part, subordinate
only to the lien of any first deed of trust now or hereafter encumbering the Property. Developer
warrants that the lien created by this paragraph has no less than a second priority status, excluding
ad valorem property tax and other statutory liens. The City may bring an action at law against the
Developer to pay any such sums coming due hereunder or foreclose the lien created herein against
the Property in the same manner as prescribed by the laws of the State of North Carolina for the
foreclosure of deeds of trust. Interest at the legal rate, costs and reasonable attorney's fees for
representation of the City in such action or foreclosure shall be added to the indebtedness secured
by such lien. Upon removal of the Stormwater Control System in accordance with applicable law,
any applicable provisions of the Permit, and upon inspection and approval of the same by the
Stormwater Director, the lien herein granted and conveyed to the City shall be of no further force
or effect.
4. Maintenance of the Stormwater Control System: If the Association, for any reason,
or at any time, fails, within thirty (30) days after receiving written notice, to operate and/or
maintain the Stormwater Control System as required by the Operation and Maintenance Manual(s),
this Agreement, or the Permit, the City may complete such construction or perform such
maintenance or repair, and the Association, hereby, agrees to pay the City or other governmental
authority all reasonable costs incurred, thereby. As security for the payment of these costs, the
Association agrees to pay into the Escrow Account, within five (5) years of the date that the Permit
is issued, a sum equal to two-thirds (2/3) of the amount satisfactory to support the operation,
maintenance and annual inspection of the Structural BMPs, as defined in section 75-107 of the
City Code and as indicated in a sealed engineer's estimate. The Association, furthermore, agrees
to pay into the Escrow Account, within ten (10) years of the date that the Permit is issued, a sum
equal to the remaining one-third (1/3) of the amount satisfactory to support the operation,
maintenance and annual inspection of the Structural BMPs, as defined in section 75-107 of the
City Code and as indicated in a sealed engineer's estimate. The amounts of the Association's
payments into the Escrow Account will be calculated in accordance with guidelines issued by the
Stormwater Director and/or the City Council. The Association will allocate a portion of the
Association's annual assessments to the Escrow Account, sufficient to timely discharge the
Association's obligations to pay into the Escrow Account. The amount of the Association's annual
assessments that the Association allocates each year to the Escrow Account will be calculated by
taking the sum total that the Association owes for the given period of time, and dividing it by the
number of years left in the period of time. Thus, if the Association owes twelve thousand dollars
($12,000) in the first five (5) years after the Permit's issuance, and the Association is formed one
(1) year after the Permit's issuance, the Association's annual allocation to the Escrow Account
will be twelve thousand dollars ($12,000) divided by four (4) years or three thousand dollars
($3,000). The Association will replace all funds drawn down from the Escrow Account in
accordance with the schedule of anticipated work used to originally fund the Escrow Account. The
City may bring an action at law against the Association to pay any such sums coming due
hereunder, as prescribed by the laws of the State of North Carolina. If the Developer has not
transferred ownership and/or legal and managerial authority and control of the Stormwater Control
System to the Association and/or if the Permit has not been reissued to the Association when the
Association's payments become due, then, the Developer will discharge all of the Association's
payment obligations under this section 4 of the Agreement and the City may bring an action at law
against the Developer to recover any sums due, hereunder, as prescribed by the laws of the State
of North Carolina. Interest at the legal rate, costs and reasonable attorneys' fees for representation
of the City in any action the City brings hereunder shall be added to the amount of the indebtedness.
Upon removal of the Stormwater Control System in accordance with applicable law, any
applicable provisions of the Permit, and upon inspection and approval of the same by the
Stormwater Director, the lien herein granted and conveyed to the City shall be of no further force

or effect.
5. Easement for Inspection, Construction and Maintenance: Developer, hereby, grants
and conveys to the City a non-exclusive, perpetual easement or easements (or blanket easement)
(hereinafter, the "Easement") across those portions of the Property necessary for inspection,
completion of construction, monitoring, maintenance, repair, and reconstruction of the Stormwater
Control System, as shown on Exhibit B. Developer represents and warrants that it is seized of the
aforesaid Property in fee, has the right to convey the Easement hereby granted, that the same is
free from encumbrances, and that the Developer will warrant and defend said title to said Easement
against the claims of all persons, whomsoever and whatsoever. Developer, furthermore, agrees to
execute, acknowledge, and deliver all such further documents and instruments of conveyance or
transfer, to provide all such information, and to take or refrain from taking such further actions as
may be required to carry out and effectuate the intent and purpose of this Agreement and Easement,
or to confirm or perfect any right created hereunder. This Easement shall terminate upon the
removal of the Stormwater Control System in accordance with applicable law and any applicable
provisions of the Permit, regulations and procedures, the permit and approval plans, and the
inspection and approval of the removal by the Stormwater Director.
Nothing herein contained shall be deemed a gift or dedication of any portion of the Property
described herein to the general public or for any public use or purpose, whatsoever, it being the
intent of the Parties that this Easement shall be strictly limited to, and for the purposes, herein,
expressed, and shall be solely for the benefit of the Parties, hereto, and their respective heirs,
successors, and assigns, and successors in title to their respective properties.
Developer and Association, hereby, agree to jointly and severally release, indemnify,
defend, and hold the City, its officials, officers, agents, and employees harmless from and against
any and all claims, actions, suits, liabilities, losses, costs, expenses, reasonable attorneys' fees, and
costs of litigation, of any nature, whatsoever, including but not limited to, claims for special,
incidental, indirect, and consequential damages, arising out of, or in any way related to, the
Stormwater Control System and/or the City's entry onto the Property and use of the Easement,
thereupon.
6. Restrictive Covenant: All future transferees of the Property shall be subject to the
restrictive covenant that they will a) construct, maintain, repair, and reconstruct the Stormwater
Control System in conformance with the Operation and Maintenance Manual(s), the Permit, and
this Agreement and b) replenish any funds withdrawn by the Developer or the Association or any
subsequent transferees of the Property from the Escrow Account, in accordance with the schedule
of anticipated work used to originally fund the Escrow Account. Such restrictive covenant shall
run with the land, provided, however, that, with the approval of the Stormwater Director, the
Developer may transfer all responsibilities and obligations, hereunder, to another entity having the
legal and financial ability and authority to assure fulfillment of Developer's or Association's
responsibilities under the Permit and this Agreement.

7. Notice. Any notice which any party, hereto, may send to the other pertaining to
this Agreement shall be in writing and shall be considered delivered when deposited in the United
States mail, certified with postage pre -paid. The addresses are as stated below:
if to the City: if to the Developer: if to the Association:
City of Winston-Salem
Stormwater Division
101 North Main Street
Winston-Salem, NC 27101
8. Modification and Amendment. This Agreement may only be amended by written
agreement signed by the City, the Developer, and the Association or their respective successors
and assigns. This Agreement contains the entire agreement among the Parties. There are merged,
herein, all prior and collateral representations, promises, and conditions, in connection with the
subject matter, hereof. Any representations, promises, or conditions not incorporated, herein, shall
not be binding upon the Parties.
9. Severability. Invalidation of any one of these covenants or restrictions by judgment
or court order will, in no way, affect any other provisions, which shall remain in full force and
effect.
10. Beneficiaries of this Agreement. The City is the governmental authority which has
jurisdiction over the Stormwater Management Permit issuance, and shall be deemed to be a
beneficiary of this Agreement, both in its own right, and also for the purpose of protecting the
interests of the community and other parties, public or private, in whose favor, or for whose benefit,
this Agreement has been provided. This Agreement shall run in favor of the City for the entire
period during which this Agreement shall be in force and in effect, without regard to whether the
City has, at any time, been, remains, or is an owner of the Property or any portion, thereof. The
City shall have the right, in the event of any breach of this Agreement, following notice and a
reasonable period to cure, to exercise all the rights and remedies, and to maintain any action or
suit, at law or in equity, or other proper proceeding, to enforce the curing of such breach of this
Agreement to which it may be entitled.
11. Caption Headings. The headings and captions used in this Agreement are used for
convenience, only, and shall not be deemed to limit, amplify, or modify the terms of this
Agreement
12. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of North Carolina. Venue for any litigation pertaining to this Agreement shall be laid
in Forsyth County Superior Court in Forsyth County, North Carolina.
13. BindingEffect. ffect. The Parties agree that the terms and provisions of this Agreement
shall be binding upon, and inure to the benefit of, the Parties, their heirs, executors, administrators,
successors in interest, and assigns.
14. Recording. A copy of this Agreement and any modification, thereof, shall be filed
in the office of the Forsyth County Register of Deeds and in the office of the Stormwater Director.
TO HAVE AND TO HOLD the aforesaid Easement and all privileges and appurtenances
thereunto belonging to City, and its successors and assigns.

IN WITNESS, WHEREOF, Developer has caused this Agreement to be executed under
seal, by its duly authorized representative, the day and year first above written.
IN WITNESS, WHEREOF, Association has caused this Agreement to be executed under
seal, by its duly authorized representative, the day and year first above written.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES.]

SEAL
Attested
By:
Print Name:
Title:
SEAL
Attested
By:
Print Name:
Title:
Signature Page
Developer
By: (SEAL)
Print Name:
Title:
Association
By:
Print Name:
Title:
(SEAL)

Signature Page
SEAL
Attested
By:
Print Name: Melanie Johnson
Title: City Secreta
This instrument has been preaudited in the manner
required by the Local Government and Fiscal
Control Act,
This day of
Not Applicable
by Lisa Saunders, Chief Finance Officer
City of Winston-Salem (via Stormwater
Department of the City of Winston-Salem)
By:
Print Name: Keith Huff
Title: Stormwater Director
Approved as to form and legality
This day of
by Angela I. Carmon, City Attorney

STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
a Notary Public of the County and State aforesaid, certify
that , personally came before me this day and acknowledged that
he is the of and that by
authority duly given and as the act of the corporation, the foregoing instrument was signed in its
name by its
Witness my hand and notarial seal, this the
, A.D.
Notary Public
(SEAL)
STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
day of
My Commission Expires:
a Notary Public of the County and State aforesaid, certify
that , personally came before me this day and acknowledged that
he is the of and that by
authority duly given and as the act of the corporation, the foregoing instrument was signed in its
name by its
Witness my hand and notarial seal, this the
. A.D.
Notary Public
(SEAL)
day of
My Commission Expires:

EXHIBIT A

EXHIBIT B

EXHIBIT C