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HomeMy WebLinkAboutAirline Storage, LLC - Storm Water Facility Maintenance and Repair Agreement (RECORDED) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIUIIIIIIIIIIIIIIIIIIIIIIIII II II Doc ID: 011967610010 Type: GEN Recorded: 06/29/2023 at 11:29:26 AM Fee Amt: $52.00 Page 1 of 10 Black Hawk County Iowa SANDIE L. SMITH RECORDER (� File2023-00017605 /47 e Prepared by Christopher S.Wendland, P.O. Box 596,Waterloo, IA 50704 Phone(319)234-5701 STORM WATER FACILITY MAINTENANCE AND REPAIR AGREEMENT This Storm Water Facility Maintenance and Repair Agreement (the"Agreement") is entered into as of ccbrua"'� I, 102,3 , by and among Airline Storage, L.L.C. ("Owner 1"),the City of Waterloo, Iowa, as the owner of certain real estate described herein(referred to in such role as"Owner 2") and the City of Waterloo, Iowa, as governing authority of its Code of Ordinances (referred to in such role as the "Agency"). RECITALS A. Owner 1 is the owner of real property platted as Lot 1, West Port, City of Waterloo, Iowa("Lot 1"), and Owner 2 is the owner of real property platted as Lot 2, West Port, City of Waterloo, Iowa("Lot 2"). Lot 1 and Lot 2 are together referred to as the "Benefited Property." B. Pursuant to the site plan attached hereto as Exhibit"A"a single storm water detention facility(the "Facility") is to be constructed at the northerly end of the Benefited Property. C. In connection with construction of the Facility and other development activities to be undertaken by Owner 1, a maintenance and repair agreement is required by Section 8-4C-5 of the Waterloo Code of Ordinances. C. As a condition to development of Lot 1 and to the Agency's approval of this Agreement, Owner 1 is willing to obligate itself and its permitted successors, assigns and transferees to maintain and repair the Facility on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Installation, Maintenance and Repair. Owner 1 agrees to install, construct, maintain, repair, and reconstruct the Facility as set forth herein. Until Owner 2 conveys Lot 2 to 1 .�:2� /0 a developer("New Owner 2"), Owner 1 shall be solely responsible for the inspection, maintenance and repair of the Facility so that the Facility continues to function as originally designed for its primary purpose and use for storm water management, storm water release and pollutant filtration. Unless Owner 1 obtains a waiver or variance, it shall comply with (a) all applicable requirements of Title 8, Chapter 4 of the Waterloo Code of Ordinances, including the provisions of all applicable Articles thereunder, or any successor provisions thereto, (b) all applicable requirements of any other provisions of the Waterloo Code of Ordinances, (c) all standards and specifications required by the City Engineer in the exercise of his or her reasonable discretion, initially including but not limited to those set forth on Exhibit"B" attached hereto, and (d) all standards and best management practices set forth in the Iowa Storm Water Management Manual or successor publication, as any of the foregoing may now or hereafter be in effect. Owner 1 shall be solely responsible to conduct such periodic inspections of the Facility as may be reasonably necessary to ensure compliance with its duties hereunder,to retain records thereof as required by ordinance, and to timely prepare and file with Agency any required reports. After Owner 2 conveys Lot 2 to New Owner 2, Owner 1 and New Owner 2, their successors in interest, shall share equally in all cost, expense, and responsibility relating to performance of all obligations under this Agreement. 2. Changes to Facility. No party subject to this Agreement shall restrict the flow of water, or make changes to the Facility restricting the flow of water,to and from the Facility. Any change to the composition of the Facility or its surface area or location must be approved in advance by Agency,provided, however,that such pre-approval shall not be required for removal of accumulated sediment or silt or to increase the depth of the Facility for aesthetic or recreational purposes. 3. Development-Related Plans. In connection with Agency's approval of any future development of the Benefited Property, and as a condition to such approval,the owner of the lot proposed for development must prepare and submit to Agency such plans as are required by the storm water management provisions of Title 8, Chapter 4 of the Waterloo Code of Ordinances. A developer of any part of the Benefited Property must demonstrate that its development complies with such plans and this Agreement. Such developer shall be responsible for the cost of constructing any drainage ways, spillways, culverts or other infrastructure necessary to allow for the flow of storm water from the Benefited Property to the Facility. 4. Enforcement. In addition to any other enforcement powers or remedies available to Agency under Agency ordinance or applicable law or regulation,Agency may proceed as set forth in this Section. If an owner of the Benefited Property fails or refuses to satisfy any requirements under this Agreement,then Agency may, after notice as provided herein, correct a violation or non-compliance in the Facility by performing or causing to be performed all necessary work to place the Facility in proper working order and in compliance with this Agreement or applicable plans, law or ordinance. If the violation or non-compliance is not a danger to public safety or public health, Agency shall provide reasonable notice to such owner to correct the violation or non-compliance in a timely manner. If Agency determines that the Facility becomes a danger to public safety or public health,then Agency shall notify such owner in writing that it shall have two days from receipt of notice, or such additional time as circumstances may require as determined by the City Engineer or designee,to correct the 2 violation or non-compliance. If in any instance such owner does not correct the violation or non- compliance in a timely manner,then Agency may enter upon the Facility premises and take such action as deemed reasonably necessary to eliminate the violation or non-compliance. Costs incurred by Agency shall constitute a lien on the Facility and the Benefited Property, and City may assess such costs to each separately owned portion of the Benefited Property as a lien to be collected in the same manner as property taxes. Assessment shall be made to each parcel in proportion to the square footage or acreage of the subject parcel as compared to the square footage or acreage of the Benefited Property. Any notice to a property owner required before assessment of costs shall be to the property owner's name and address as shown in the real estate records of Black Hawk County, Iowa. In addition to the foregoing remedy and procedures, Agency may proceed as set forth in section 8-4C-7 of the Code of Ordinances. 5. Easement Grant to Agency. Owner 1 and Owner 2 hereby grant to Agency a perpetual access easement for purposes of inspection of the Facility and for any work necessary to correct any violation or non-compliance as provided in Section 4 above. 6. Matters Not Included. The parties agree that the maintenance responsibilities required by this Agreement do not include any duty to undertake maintenance that may be deemed necessary or advisable solely for aesthetic reasons or recreational purposes, except as expressly set forth in this Agreement. Maintenance or upkeep of the Facility for recreational purposes or aesthetic reasons is outside the scope of this Agreement and is left entirely to the discretion of owners of the Benefited Property. 7. Interpretation. This Agreement shall be interpreted and applied in harmony with the storm water ordinances of the City of Waterloo, and to the extent of any conflict said ordinance shall prevail over the terms hereof. 8. Waiver. No delay by any party in exercising, or omission by any party to exercise, its rights accruing upon any non-compliance or failure or performance by any party shall impair any such right or be construed to be a waiver thereof. A waiver by any party hereto of any of the covenants, conditions or agreements to be performed by any other party shall not be construed to be a waiver of any succeeding breach or of any other covenants, conditions or agreements contained herein. 9. Severability; Reformation. Each provision, section, sentence, clause,phrase, and word of this Agreement is intended to be severable. If any portion of this Agreement shall be deemed invalid, illegal or unenforceable,whether in whole or in part,the offending provision or part thereof shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any portion of this Agreement is invalid or unenforceable as written, but that by limiting such provision or portion thereof it would become valid and enforceable, then such provision or portion thereof shall be deemed to be written, and shall be construed and enforced, as so limited. 10. Covenants Run with the Land. All the terms and provisions hereof are and shall be deemed to run with the property described herein and shall burden and benefit such property 3 and,with respect thereto, each owner,the holders or owners of any mortgage, indenture, deed of trust or deed to secure debt encumbering any of such property, any purchaser at a foreclosure sale or tax sale, and their respective heirs,personal representatives, successors and assigns. 11. Notices. Except as otherwise provided in Section 4, any notice under this Agreement shall be in writing and shall be delivered in person, by United States registered or certified mail,postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), and addressed: (a) if to Agency, at 715 Mulberry Street, Waterloo, Iowa 50703, facsimile number 319-291-4571,Attention: Mayor,with copies to the City Attorney and the Community Planning and Development Director. (b) if to an owner of Benefited Property, at its address as shown in the records of the Black Hawk County Assessor. Delivery of notice shall be deemed to occur(i) on the date of delivery when delivered in person, (ii)three (3)business days following the date of deposit if mailed by United States registered or certified mail,postage prepaid, or(iii)when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. A party may change the address for giving notice by any method set forth in this section. 12. Amendment, Modification, and Waiver. Waiver by a party of any specific default by another party shall not affect or impair any rights arising from any other default or any subsequent default. This Agreement may be modified or amended only by the mutual written agreement of the parties. 13. Captions. All captions,headings, or titles in the paragraphs or sections of this Agreement are inserted only as a matter of convenience and/or reference, and they shall in no way be construed as limiting, extending, or describing either the scope or intent of this Agreement or of any provisions hereof. 14. Counterparts. This Agreement may be executed in one or more counterparts, each of which, including counterparts exchange by facsimile or other electronic means, shall be deemed an original and all of which,taken together, shall constitute one and the same instrument. 15. Entire Agreement. This Agreement, together with the exhibits attached hereto, if any, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements,whether oral or written,with respect to the subject matter hereof. 16. Time of Essence. Time is of the essence of this Agreement. 4 IN WITNESS WHEREOF,the parties have executed this Storm Water Facility Maintenance and Repair Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA CITY OF WATERLOO, IOWA (as Owner 2) (as Agency) By: By: Ok-A-0.11— Quentin Hart, Mayor ` Quentin Hart, Mayor Kf' Attest: Attest: � elley Felchle, Ity Clerk Kelley Felchle ity Clerk AIRLINE STORAGE, L.L.C. By: �., 24) Jonat an Voigt Managing Member STATE OF IOWA ) )ss. BLACK HAWK COUNTY ) Acknowledged before me on . 912623 by Quentin Hart and Kelley Felchle as Mayor and City Clerk,respectively,of the City of Waterloo,Iowa. PP'",' NANCY HIGBY Notary Public Lai t.. r COMMISSION Na7B82`29 * °; MY •M,JS ION EXPIRES STATE OF IOWA ) )ss. BLACK HAWK COUNTY ) Acknowledged before me on i by Jonathan Voigt as Manaa' g * -tuber of Airline Storage,L.L.C. TIM ANDNOERA > !COMMISSIO .772518 * * MY COMMISSION EXPIRES otary b1ic itrvilk, APRIL 11,2024 5 EXHIBIT"A" Site Plan of Benefited Property See attached. 1 �o g 0 i N V w z W N $ a ° j w � a see w41 o H QQ< pip�� y w 9a a AVdH97H 9HIThIY LS' 1-----2,—\-- i ¢n ¢ ' < h a oa a Q 58 ,1w° e A Iwo o a ry N i �� jaW ° Q ~2 ♦ • P, WJ 9----tiNw-_--Jf�; -ice fiat- s - --burs -�pW- "I_ .r]u5 'vw ---� - -- � S W 06° J ----.Y.-- ® 0 ash© © UU� m °m 'm 3 i bu o ma ew °yo It: •:- S " ••••••• 186 d -oo ,,,% .:: ..::: I Eg � CD / ,p::.::.:.:.:.'•••:'::•:5g,::o:T.E( jIi •• ' W °g N Ny r °ik:. JEo '.':::..................� a . Z !!! wa !!! S¢.:::.�:.:.:...: .:.:.'•.':. ,_ ...-. CDxT O m` m l 4(71:: ::•:•:•:•:m lcU i • ... i'm... I- L. ¢ : . • A ? z 3 1--,� ..�. O U3 °o A. ° / I::::::;•: -: t o, w CC IFS $ 5 3 Aw.a zh z r.............. m a� a o °Q ............. ,. S z .'g... Imo, ® ®N ® 00 ,t jj m rn • Al ""AS::':::::::IS BZ bZ �BZ "W ..AS' Al - Q•• I gg 4 z w ..� z i J • H i¢ 2 6 .. ....... Sao w JJ � s off 1 gl o0 my ZuiBu n7.lry Ja �.. '.•'..... m z$ w �x �w 5 ;1 ........ pa s'N �m z �L_•__.'_.:•p:11a Ili a A �5 �. m N � of iw ° ° �$x? wN N y w _ - a E 333 �e f •¢ I _ °a PEE x 8 ij m it ( 1..: 2 i o 1L'_ 5 „ ngJJ1I33$3 i 1 - J �5 1 € Ng wF�� GSSf3 5°J •j 5� N8 �a I zzn ri am�� r .. .-1 zL°,-,' . ,., !I 1:1 r �i3zw' .. m. NS mm 5ro a it, -- E ilt1 S W g' gg p gogo NN I > . 0I W I I€!::.•:..:.:.::.:.::. {{ Q 2 •' .. Q 2 - N m 46 o p `I o w g g fig z m $8S� - w aO aw g o w z erg4 ' w.zwadLL ai �'g i a!Ilia s 1a 1 m/ z1 w • Mwg.Cw , O o� _g°ig a w y O . oiziwi !A lg 1 1a3¢ ' 1Ip1 ¢ x .mgy N zW'- m c91 1- .. aa 4 z g1° ,¢s Ng W ° 5,�4- I °I o m g¢R °r,°_— • wm,1- g �`i °oiii N3 Q b W �.z-, a wwuwq-utl>2'.p-u-5Q60-002]-6rp'2il'6-IsaOpA YlA�11 WI]-OfAS'anlS S�'D'dfAs••f EXHIBIT"B" Inspection and Maintenance Requirements The Facility shall be maintained as required by the Agreement, and the additional standards set forth in this Exhibit"A" shall also apply. Maintenance shall include the activities set forth below and also those additional activities described in the Iowa Storm Water Management Manual as maintenance activities applicable with respect to wet detention ponds or facilities. Activities shall be performed in accordance with the respective schedules set forth below or in the Manual. Short-Term Maintenance—First Year Activity Schedule 1. Inspect erosion and sediment control measures Monthly and within three(3)days after rain events of 1"or more 2. Inspect Facility for signs of erosion,instability,and compromise Within 60 days of completion,and of structure and installed elements quarterly thereafter 3. Apply herbicide treatments and remove dead/dying plants By May 31 and July 31 previously treated 4. Maintain topsoil,re-seed,mulch By April 30 and August 31 5. Remove rogue shrubs and trees By October 31 6. Apply insecticides and fungicides As needed,to be determined bi- monthly 7. Inspect inlets and outlets,remove debris Monthly Short-Term Maintenance—Second and Third Years Activity Schedule 1. Remove erosion and sediment control measures When vegetation is established 2. Inspect Facility for signs of erosion,instability,and compromise Within 60 days of completion,and of structure and installed elements quarterly thereafter 3. Apply herbicide treatments and remove dead/dying plants By May 31 and July 31 previously treated 4. Maintain topsoil,re-seed,mulch By April 30 and August 31 5. Monitor vegetation and perform replacement plantings as needed Annually 6. Remove rogue shrubs and trees By October 31 7. Apply insecticides and fungicides As needed,to be determined bi- monthly 8. Inspect inlets and outlets,remove debris By April 30,July 31,and October 31,and as otherwise observed 9. Repair undercut or eroded areas As observed 10. Remove staking wires from authorized trees At end of third year Routine or Long-Term Maintenance Schedules set forth in the Manual will apply except as modified below. 1 Activity Schedule 1. Inspect storm inlets and outlets for debris.Look for signs of Repair as necessary. Perform at sediment accumulation,flow channelization,erosion damage,or least annually AND after rain local streambank instability.Check the outfall for signs of events of 1.25"or greater. surface erosion,seepage or tunneling along outfall pipe. 2. Inspect Facility for signs of erosion,instability,and compromise Within 60 days of completion,and of structure and installed elements quarterly thereafter 3. Inspect forebays and other pretreatment areas,if any At least twice annually,no less than four months apart 4. Apply herbicide treatments and remove dead/dying plants By May 31 and July 31 previously treated 5. Maintain topsoil,re-seed,mulch By April 30 and August 31 6. Monitor vegetation and perform replacement plantings as needed Annually 7. Remove rogue shrubs and trees By October 31 8. Apply insecticides and fungicides As needed,to be determined bi- monthly 7. Inspect inlets and outlets,remove debris By April 30,July 31,and October 31,and as otherwise observed 8. Repair undercut or eroded areas As observed 9. Harvest wetland plants that have been"choked out"by sediment Annually accumulation 10. Remove sediment when total pool volume has become reduced As noted significantly(-25%),when plants along pond edge are"choked" with sediment,or when the pond becomes eutrophic Owner shall maintain a continuous chronological report that, at minimum, includes the information set forth on Exhibit`B-1" attached hereto. All reports shall be made available to Agency at any time upon request. 2 EXHIBIT`B-1" Storm Water Management Report Project location: Owner/legal entity: Phone: Email: Date of initial operation: Date Item inspected Inspector Observations & remarks—work done (printed name) 1