20200579 Ver 1_ApprovedO&M Agreement_WhirligigStation_2022-06-20_20240528

This agreement, made and entered into this a 0 day of -ant , 2002Q, by and between the City
of Wilson Stormwater Division, acting as the Bank Spons (the "Sponsor") and the North Carolina
Department of Environmental Quality - Division of Water Resources ("DWR") for the purposes of
upholding nutrient offset credits as provided by the Whirligig Station Sand Filter Nutrient Offset
Stormwater Control Measure Site ("Nutrient Offset SCM"), located in the City of Wilson, North Carolina
City"), to be maintained;
W ITN ESSETH:
Whereas, the Sponsor has adopted through the City Unified Development Ordinance certain
stormwater management regulations within the City of Wilson, North Carolina and
Whereas, such regulations, including but not limited to the City of Wilson Unified Development
Ordinance, Section 12, Erosion, Flood, Stormwater and Watershed Provisions, require the Sponsor to
operate and maintain the Nutrient Offset SCM to provide storage treatment of stormwater runoff which
also provides Nutrient Offset credits to be traded under a Nutrient Offset Banking Instrument (NOBI)
approved by DWR; and
Whereas, the Sponsor has constructed a Nutrient Offset SCM to satisfy the requirements of such
regulations and agreements, the boundaries and general description of the Nutrient Offset SCM being
described in Appendix A attached hereto and incorporated herein by reference; and
Whereas, the Sponsor is the Owner of the Nutrient Offset SCM; and
Whereas, as a condition of the NOBI, the Sponsor is required to operate and maintain the Nutrient
Offset SCM in perpetuity in a manner that accomplishes the stormwater control and treatment intended,
including but not limited to ongoing nutrient reduction, and to enter into an agreement with DWR
securing that commitment;
Now, therefore, for and in consideration of the premises and the approval by DWR of the NOBI
and the Nutrient Offset Credits generated by the Nutrient Offset SCM, the Sponsor does hereby covenant
and agree with DWR that the Nutrient Offset SCM shall be held, operated, maintained, and encumbered
pursuant to the covenants and conditions hereinafter set forth;
1. No conveyance of the Nutrient Offset SCM without new Agreement. The Sponsor covenants and
agrees that it will not convey, transfer, assign, lease or otherwise release or relinquish ownership
or control of the Nutrient Offset SCM, in whole or in part, unless and until the proposed new
owner of the Nutrient Offset SCM, or any interest therein, has entered into a SCM Operation and
Maintenance Agreement with the Sponsor containing substantially the same terms and
conditions as this Agreement.
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2. Property Obligated. A legal description of all the property which is obligated to maintain the
Nutrient Offset SCM is attached hereto as Appendix A. All owners of each lot or parcel therein (or
the sole owner if there is but one parcel) at the time the obligation hereunder arises shall be
ultimately responsible for the compliance with the terms, conditions and obligations of the
Agreement.
3. Operation and Maintenance. The Sponsor shall operate, maintain, repair, and, if necessary,
reconstruct the Nutrient Offset SCM in accordance with the provisions below:
a. Maintenance of the Nutrient Offset SCM shall be at least in accordance with instructions for
all SCMs and specifically, sand filters, as described in the current NC DEQ Stormwater Design
Manual and as specified in the Operation and Maintenance Plan, Appendix B. At minimum,
maintenance activities shall conform to the guidelines contained therein, and shall maintain
the Nutrient Offset SCM as designed for optimal functioning. For the project named herein,
the specific SCM is described in Appendix A.
b. An Annual SCM Certification shall be submitted by the Sponsor and approved by DWR,
according to this Agreement. Annually, on or before December 31, the Sponsor shall submit
to DWR a certification, sealed by a registered Professional Engineer, that the Nutrient Offset
SCM is functioning as intended, plus a certification by the person or entity responsible for
maintenance that (1) the specific maintenance activities have occurred, (2) all nonroutine
maintenance has been listed and (3) that the Operation and Maintenance Plan is adequate to
ensure optimal functioning or that changes are recommended.
c. A notarized Operation and Maintenance Plan, Appendix B, shall be signed by the Sponsor and
submitted to DWR prior to approval of this agreement. Changes to the Operation and
Maintenance Plan shall be submitted with the SCM Certification, if required to maintain
optimal functioning of the SCM or to remain in compliance with the maintenance
recommendations of the Manual. Proposed changes to the Operation and Maintenance Plan
are subject to approval by DWR. Additional information may be required for reporting
purposes, as directed by DWR or designee.
d. Landscaping of the area around the Facility shall not reduce the capacity or hinder operation
and maintenance of the Nutrient Offset SCM. Landscaping shall be maintained to ensure that
landscape materials live and prosper. Re -vegetation and stabilization of areas may be
required by DWR or designee.
e. The Nutrient Offset SCM shall be maintained in a manner so as to control insects, odors and
algae as determined necessary by DWR or designee.
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f. Any fencing or other security measures shall be maintained in good condition. If no fencing
or security measures were included with original construction, they shall be added at the
Sponsor's expense at such time as DWR or designee determines that unauthorized persons
are disturbing the Nutrient Offset SCM and that security measures will help prevent such
unauthorized activity.
g. Necessary non -routine maintenance actions shall be performed in a timely manner so as to
ensure continuous performance of the Nutrient Offset SCM. All non -routine maintenance
activities shall be noted in the next yearly report.
4. Right of Inspection by DWR. The Sponsor hereby grants DWR the right, privilege, and easement
over, upon and across the Property lying between any public street or right of way and the
Nutrient Offset SCM for the purpose of inspecting, correcting, repairing, replacing or maintaining
the Nutrient Offset SCM as provided in this Agreement. This right, privilege, and easement is
appurtenant to and shall run with the Property and Nutrient Offset SCM.
5. Remedies for Violations of this Agreement.
a. If the Sponsor shall fail to satisfactorily maintain or repair the Nutrient Offset SCM as set forth
herein, or otherwise violates this Agreement, DWR may order the Sponsor to undertake
necessary actions to correct such violation. If the Sponsor fails to comply with such order
within thirty (30) days from the date thereof, DWR, in its sole discretion, may enter the
Property and perform all necessary work to place the Nutrient Offset SCM in proper working
condition. The full cost of performing the work (including but not limited to employee time,
material and supplies, vehicle and equipment use, administrative expenses, plus all contract
costs, if required for repairs, design or inspection) shall be a assessed against the Sponsor,
with such amount being due in full within thirty (30) days of service of an invoice on Sponsor,
and the Sponsor hereby agrees to timely pay the same.
Should any payment to the DWR be delayed by more than thirty (30) days after receipt the
invoice by the Sponsor, the Sponsor shall pay DWR interest, beginning on the 31st day, at the
rate of 1% per month or fraction thereof on such unpaid balance as may be due.
b. DWR shall have the right to bring an action against the City and/or each individual owner to
recover all sums due, including its expenses, damages, and its reasonable attorney fees, seek
injunctive and equitable relief, and/or such other and further relief as may be just and
appropriate.
c. The remedies provided by this paragraph are cumulative and are in addition to any other
remedies provided by law.
6. No Waiver of Breach. In the event of a breach of any term of this Agreement, any delay or failure
on the part of DWR to exercise any rights, powers, or remedies herein provided shall not be
construed as a waiver thereof or acquiescence of such breach or any future breach.
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7. Amendments. This Agreement may be amended, revised, or modified only by a written document
signed by the parties.
8. Binding Effect. The conditions and restrictions set forth herein with regard to the Nutrient Offset
SCM shall run with the land and shall bind the Sponsor and any subsequent owner(s), its heirs,
successors and assigns and all parties claiming by, through, or under them shall be taken to hold,
agree, and covenant with DWR, its successors and assigns, and with each of them to conform to,
comply with and observe said conditions and restrictions. DWR shall be deemed a beneficiary of
the conditions and restrictions set forth herein and such conditions and restrictions shall run with
land in favor of DWR.
9. Warranties of Title. The Sponsor covenants and warrants that is lawfully seized and possessed of
the Nutrient Offset SCM and real estate described in Appendix A, that it has good right and lawful
authority to enter into this Agreement for the purposes herein expressed, and that no consent or
waiver by the holder of any mortgage, deed of trust, or other security instrument, or any other
person, firm, or corporation is required prior to entering in this Agreement.
10. Interpretation. Use of the masculine gender herein includes the feminine and neuter, and the
singular number used herein shall equally include the plural. The captions preceding the various
provisions of this Agreement are for the convenience of reference only, and shall not be used as
an aid in interpretation or construction of this Agreement. The laws of North Carolina shall govern
this agreement.
11. Severability. Invalidation of any one of these covenants or conditions by judgement or order of
any court shall in no way affect any of the other provisions, which shall remain in full force and
effect.
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CIty of Wilson, Stormwater Division:
Title & Organization:
Street address:
City, state, zip:
Contact Phone number(s):
Contact Email:
Director of Public Works; City of Wison
1800 Herring Ave.
Wilson, NC, 27893
252-399-2467
[e-mail]
Signature: / 6:20-„ye, Date: 311 Pl.
kYin V(it,U , a Notary Public for the State of Nal* t (A' 0 i nm
f \fan do hereby certify that \tv VAtcc5,
County of
personally appeared
before me this 1 Tr1 day of YYI 6110 and acknowledge the due execution of the Operations
and Maintenance Agreement.
Witness my hand and official seal,
Otoloulinosi
NOTARY
COMMVSSION EXPIRES1211000220
aVs
ON COO"
V' N ot0
My commission expires
Page 5 of 9
NC DWR:
Title & Organization:
Street address:
City, state, zip:
Contact Phone number(s):
Contact Email:
Signature:
i
d/ (ert)),/ 0/4//:(/077 f, ///a' W ! 47/4 f' 1
Xb_/e / // 9/e_ ,iXL,D!/
p/c)- 71) 7 -70///
ifichI 2/l/, E,4-S Air. dP. /0/ • 2 v
Date: C r v
a Notary Public for the State of /1)(12/7 ,7/1 ih// ' County of
v)//4// , do hereby certify that /tP/0///(2 /) Focij2.1Lj personally appeared
before me this 410 day of ,121/1LQ _ and acknowledge the due execution of the Operations
and Maintenance Agreement.
Witness my hand and official seal,
E' PAUL.A CHAPPELLNOTARYPUBLICHAMCOUNTYN. C.
My commission expires Ay,, d/), 1 .
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Appendix A.
Description of the Nutrient Offset SCM and Property Obligated to Maintain Nutrient Offset SCM
Stormwater control measure providing stormwater nutrient removal for the subject Property identified
as "Whirligig Station" is more particularly identified as:
Nutrient Offset SCM beneath the parking lot located south of Tarboro Street W, between Kenan Street
SW and Barnes Street SW in Wilson, North Carolina.
All of the Property known as "Whirligig Station" has parcel number 3722207111 and is recorded in Deed
Book 2560, Page 365 and Plat Book 41, Page 239 in the Wilson County Registry.
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Appendix B.
Sand Filter Maintenance Requirements
Important maintenance procedures:
The drainage area will be carefully managed to reduce the sediment load to the sand filter.
The sedimentation chamber or forebay will be cleaned out whenever sediment depth exceeds six
inches.
Once a year, sand media will be skimmed.
The sand filter media will be replaced whenever it fails to function properly after maintenance.
The sand filter shall be inspected quarterly and within 24 hours after every storm event greater than 1.0 inches (or 1.5
inches if in a Coastal County). Records of operation and maintenance will be kept in a known set location and will be
available upon request.
Inspection activities shall be performed as follows. Any problems that are found shall be repaired immediately.
BMP element: Potential problem: How to remediate the problem:
Entire BMP Trash/debris is present. Remove the trash/debris.
Adjacent pavement (if
applicable)
Sediment is present on the pavement surface. Sweep or vacuum the sediment as
soon as possible.
Perimeter of sand filter Areas of bare soil and/or erosive gullies have
formed.
Regrade the soil if necessary to
remove the gully, and then plant a
ground cover and water until it is
established. Provide lime and a
one-time fertilizer application.
Vegetation is too short or too long. Maintain vegetation at an
appropriate height.
Flow diversion structure The structure is clogged. Unclog the conveyance and
dispose of any sediment offsite.
The structure is damaged. Make any necessary repairs or
replace if damage is too large for
repair.
The inlet device The pipe is clogged. Unclog the pipe. Dispose of the
sediment off -site.
The pipe is cracked or otherwise damaged. Replace the pipe.
Erosion is occurring in the swale. Regrade the swale if necessary to
smooth it over and provide
erosion control devices such as
reinforced turf matting or riprap
to avoid future problems with
erosion.
Page 8 of 9
Stone verge is clogged or covered in sediment (if
applicable).
Remove sediment and replace
with clean stone.
Forebay or pretreatment
area
Sediment has accumulated to a depth of greater
than six inches.
Search for the source of the
sediment and remedy the problem
if possible. Remove the sediment
and stabilize or dispose of it in a
location where it will not cause
impacts to streams or the BMP.
Erosion has occurred. Provide additional erosion
protection such as reinforced turf
matting or riprap if needed to
prevent future erosion problems.
Weeds are present. Remove the weeds, preferably by
hand. If a pesticide is used, wipe it
on the plants rather than spraying.
Filter bed and underdrain
collection system
Water is ponding on the surface for more than 24
hours after a storm.
Check to see if the collector
system is clogged and flush if
necessary. If water still ponds,
remove the top few inches of filter
bed media and replace. If water
still ponds, then consult an expert.
The outlet device Clogging has occurred. Clean out the outlet device.
Dispose of the sediment off -site.
The outlet device is damaged Repair or replace the outlet
device.
The receiving water Erosion or other signs of damage have occurred at
the outlet.
Contact the local NC Department
of Environment and Natural
Resources Regional Office.
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