Item #18 - O_M Agmt_Single Owner_Template

Prepared by: Marilena Jensen-Guthold
Asst. City Attorney
After recording return to: Box 5
STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
GRANT
EASEMENT
STORMWATER OPERATION AND
MAINTENANCE AGREEMENT AND
OF
THIS STORMWATER OPERATION AND MAINTENANCE AGREEMENT AND
GRANT OF EASEMENT is made and entered into on this the day of ,
2014, pursuant to the Post -Construction Stormwater Ordinance, Chapter 75, Article IV of the City
Code of the City of Winston-Salem, by , a
) (hereinafter known as the "Developer"), for the
benefit of the City of Winston-Salem (the "City").
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 a
stormwater management control structure, including stormwater detention ponds and other
stormwater control structures, as necessary, and in accordance with approved plans, specifications,
and applicable 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, 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 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 applicable Permit provisions, the plans and specifications, the Operation and
Maintenance Manual, and all other applicable law.
2 Transfers. Developer agrees that it shall not transfer ownership and/or control of
the Stormwater Control System until construction has been completed in accordance with the
Permit, and the Stormwater Director has approved the completed construction. If Developer,
thereafter, desires to transfer ownership and/or control of the Stormwater Control System,
Developer and the proposed transferee shall first request that the Permit be re -issued to the
proposed transferee.
Developer shall remain responsible for the operation and maintenance of the
Stormwater Control System until the Permit has been reissued to the proposed transferee, at which
time Developer shall be released from any obligations, hereunder arising, from events or
circumstances occurring, thereafter.
3 Right to Construct and Maintain. If the Developer for any reason, or at any time,
fails, within thirty (30) days after receiving written notice, to complete construction or maintain
the Stormwater Control System as required by the Operation and Maintenance Manual, this
Agreement, or the Permit, 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 to pay a sum
equal to four percent (4%) of the cost of the Stormwater Control System's construction into the
City's Stormwater Structural Best Management Practice Replacement Fund, which payment will
be calculated in accordance with guidelines issued by the Stormwater Director and/or the City
Council and also, hereby, grants and conveys to the City a lien on the Property 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
foreclosures of deeds of trust. Interest at the legal rate, costs, and reasonable attorneys' 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
and effect.

4. Easement for Inspection, Construction and Maintenance. Developer hereby grants
and conveys to the City, a non-exclusive easement or easements ("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. 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, hereby, agrees to release, indemnify, defend, and hold the City, its officials,
officers, agents, and employees, harmless from any and claims, actions, suits, liabilities, losses,
costs, expenses, reasonable attorneys' fees, and costs of litigation, of any nature, whatsoever,
including claims for special 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.
5. 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 applicable Operation and Maintenance Manual, the
Permit, and this Agreement and b) repay any loans taken by Developer or any subsequent
transferees of the Property from the City's Stormwater Structural Best Management Practice
Replacement Fund, under section 75-404 of the City Code. Such restrictive covenants 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 responsibilities under the Permit
and this Agreement.
6. 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:
City of Winston Salem
Stormwater Division
101 North Main Street
Winston-Salem, NC 27101

7. Modification and Amendment. This Agreement may only be amended by a written
agreement signed by City and Developer or their respective successors and assigns. This
Agreement contains the entire agreement between the parties. There are merged, herein, all prior
and collateral representations, promises, and conditions, in connection with the subject matter,
hereof. Any representation, promise, or condition not incorporated, herein, shall not be binding
upon either party.
8. 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.
9. Beneficiaries of this Agreement. The City is the governmental authority which has
jurisdiction over 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
suits at law or in equity, or other proper proceedings, to enforce the curing of such breach of this
Agreement to which it may be entitled.
10. 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.
11. 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.
12. 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.
13. 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. Developer covenants that it is seized
of the aforesaid premises in fee, has the right to convey the Easement hereby granted, that the same
are free from encumbrances, and that it will warrant and defend said title to said Easement against
the claims of all persons, whomsoever and whatsoever, except as to any easements, restrictions, or
conditions of record.

IN WITNESS, WHEREOF, Developer has caused this Agreement to be executed under
seal, the day and year first above written.
Developer:
a
By: , (SEAL)
Signature
Print Name:
Title:
STATE OF NORTH CAROLINA )
COUNTY OF 1
I, , Notary Public of said County and State, do
hereby certify that the
of a
personally appeared before me this day and
acknowledged due execution of the foregoing instrument on behalf of
Witness my hand and official stamp or seal, this the day of , 2014.
My commission expires:
Notary Public
AFFIX NOTARY STAMP OR SEAL

SEAL City of Winston-Salem (via the Stormwater
Department of the City of Winston-Salem)
By:
Print Name: Keith Huff
Title: Stormwater Director
Attested By:
Melanie Johnson
City Secretary
This instrument has been pre -audited in the
manner required by the Local Government and
Fiscal Control Act.
This day of December, 2014
Not Applicable
By Lisa Saunders, Chief Financial Officer
Approved as to form and legality.
This day of December, 2014
By Angela I. Carmon, City Attorney

EXHIBIT A

Permit Number:
EXHIBIT B

Permit Number:
EXHIBIT C