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STORMWATER FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
THIS AGREEMENT, made and entered into this _________ day of _________________, 20____, by and between _____________________________ a Pennsylvania corporation with an registered office at ____________________________________ (hereinafter the “Landowner”), and BEDMINSTER TOWNSHIP, Bucks County, Pennsylvania (hereinafter “Township”);
W I T N E S S E T H
WHEREAS, Landowner is the owner of a tract of land in Bedminster Township, Bucks County, Pennsylvania located at __________________________, otherwise known as Bucks County TMPs _________________________ and recorded by deed in the land records of Bucks County, Pennsylvania, Deed Book ___________ at Page ______, (hereinafter referred to as the “Property”); and
WHEREAS, on ____________________, Landowner obtained final plan approval from the Township for a _______________ of the Property pursuant to plans prepared by ____________________________, consisting of _______________ (___) sheets, numbered 1 through ___, dated _________________, last revised ___________________; said plans being made a part hereof and incorporated herein by reference although not physically attached hereto (hereinafter referred to as the “Final Plans”); and
WHEREAS, the Final Plans include the Operations and Maintenance Plan approved by the Township (hereinafter referred to as the “Plan”) for the Property, which is attached hereto as Exhibit A and made part hereof, as approved by the Township, provides for management of stormwater within the confines of the Property; and
WHEREAS, Landowner is proceeding to build and develop the Property in accordance with the Final Plans; and
WHEREAS, the Township requires, though the implementation of stormwater management regulations that Stormwater Management Facilities as shown on the Plan be constructed and adequately maintained by Landowner, his or her heirs, successors and assigns; and
WHEREAS, the Township and Landowner agree that the health, safety, and welfare of the residents of the Township require that onsite Stormwater Management Facilities be constructed and maintained on the Property; and
WHEREAS, Landowner proposes to locate, construct, install and maintain certain Stormwater Management Facilities on the Property, as shown on the Plan; and
WHEREAS, as a condition of obtaining final approval of the Plan from the Township, the Township required that Landowner execute and record this Agreement in the Office of the Recorder of Deeds of Bucks County, Pennsylvania for the purpose of ensuring that: (1) the Stormwater Management Facilities are located, constructed, installed, operated and maintained by Landowner in accordance with the Plan; (2) following the completion of the duties of Landowner pursuant to the Plan, the Stormwater Management Facilities are continually and perpetually maintained, repaired, refurbished, reconstructed and replaced by owner(s) of the land on which the facilities are located; and (3) in the event of default of this Agreement by Landowner or its successor and assigns, the Township shall have the right to enter upon the Property to cure such default; and
WHEREAS, the Township requires, through the implementation of the Plan, that Stormwater Management Facilities as required by said Plan and the Bedminster Township Stormwater Management Ordinance be constructed and adequately operated and maintained by the Landowner, his or her successors and assigns.
NOW THEREFORE, in consideration of the foregoing statements, the Township’s approval of the Final Plans and the Plan, and the following terms and conditions, the parties hereto agree as follows:
1. For the purposes of this agreement, the following definitions shall apply:
BMP (Best Management Practice) -Activities, facilities, designs, measures or procedures used to manage stormwater impacts from land development, to protect and maintain water quality and groundwater recharge and to otherwise meet the purposes of the Township’s Stormwater Management Ordinance, including but not limited to infiltration trenches, seepage pits, filter strips, bioretention, wet ponds, permeable paving, rain gardens, grassed swales, forested buffers, sand filters and detention basins.
Infiltration Trench - A BMP surface structure designed, constructed, and maintained for the purpose of providing infiltration or recharge of stormwater into the soil and/or groundwater aquifer.
Rain Garden - A BMP overlain with appropriate mulch and suitable vegetation designed, constructed and maintained for the purpose of providing infiltration or recharge of stormwater into the soil and/or underground aquifer.
Seepage Pit - An underground BMP structure designed, constructed, and maintained for the purpose of providing infiltration or recharge of stormwater into the soil and/or groundwater aquifer.
Stormwater Management Facility - Any structure, device, construct, or improvement, including, but not limited to, BMPs designed, installed, constructed and maintained for the purpose controlling stormwater.
2. All Stormwater Management Facilities shall be constructed by Landowner in accordance with the terms, conditions and specifications identified in the Plan.
3. The Landowner shall operate and maintain the Stormwater Management Facilities as shown on the Plan in good working order acceptable to the Township and in accordance with the specific maintenance requirements noted on the Plan.
4. The intent and purpose of this Agreement is to ensure the proper maintenance of the onsite Stormwater Management Facilities by the Landowner; provided, however, that this Agreement shall not be deemed to create or affect any additional liability of any party for damage alleged to result from or be caused by stormwater runoff.
5. Landowner shall keep and maintain the Stormwater Management Facilities in good working condition. Landowner shall continually and perpetually perform such maintenance, repair, refurbishment, reconstruction and replacement of said facilities shown on the Plan and located on the Property, including but not limited to BMPs, drainage swales, detention and retention basins, stormwater piping systems, headwalls, inlet and outlet structures and all structures and facilities appurtenant to the foregoing, as may be necessary or advisable in the opinion of the Township to ensure the structural integrity and the proper functioning thereof and to ensure compliance with all federal, state and local laws, rules and regulations pertaining thereto. At no time shall the Stormwater Management Facilities be removed or altered in any manner without the prior written approval of the Township. In particular, Landowner agrees to the following:
a. Landowner shall regularly perform all inspection and maintenance of the Stormwater Management Facilities as is necessary and desirable to ensure the property functioning of the Facilities.
b. Landowner shall not alter the area of the Stormwater Management Facilities in a manner which would cause the Facilities to differ from what is shown on the Plan without written approval of the Township.
c. Landowner shall remove debris and silt from the facilities to ensure that the Stormwater Management Facilities remain in good working order.
d. Landowner shall make all repairs necessary to ensure the continued proper operation of the Stormwater Management Facilities.
6. All Stormwater Management Facilities that have been damaged or fail to function properly, for any reason, shall be stabilized and reconstructed by Landowner to approved design grades and specifications as shown on the Plan and approved by the Township.
7. All drainage, detention and/or retention basin easements shown on the Plan shall be maintained in a grassed or otherwise improved condition, in accordance with the grades and designs shown on the Plan. All these easements shall be kept free of all obstructions, including but not limited to, fill, temporary or permanent structures and plants (other than what is approved on the Plan).
8. Whenever sedimentation is caused by stripping vegetation, grading or other earth moving activities, it shall be the responsibility of Landowner to remove the sedimentation from all adjoining surfaces, drainage systems and watercourses, and to correct and repair any damage caused by such sedimentation at its sole expense.
9. For all Stormwater Management Facilities approved for the Property which include underground stormwater retention, detention or disbursement structures, Landowner hereby agrees to retain a reputable service company to inspect these stormwater structures on an annual basis and, if required, clean such structures by removing any debris or other material from them. The material removed must be disposed of at a DEP-permitted landfill or some other facility approved by DEP for the handling of such material. Landowner is specifically prohibited from flushing any debris or other material out of the stormwater structures.
10. Every three years, Landowner shall provide Township with an inspection report issued by a professional engineer registered to practice within the Commonwealth of Pennsylvania. This report must certify that the Stormwater Management Facilities are functioning as designed or, if not functioning as designed, the report shall include recommendations regarding remedial measures or repairs required to correct the deficiencies. All necessary remedial measures and repairs shall be completed by Landowner within 30 days of the identification of deficiencies, unless some other period is authorized by Township. A subsequent report shall filed within 60 days of the remedial measures and repairs being finished and shall include an engineer’s certification that the corrective work has been acceptably completed.
11. Landowner hereby grants permission to the Township, its authorized agents and employees, upon presentation of proper identification, to enter upon the Property at reasonable times to inspect the Stormwater Management Facilities whenever the Township deems necessary. The purpose of the inspection is to ensure safe and proper functioning of the facilities. The inspection shall cover the entire Facilities, including BMPs, berms, outlet structures, pond areas, access roads and the like. When inspections are conducted, the Township shall give Landowner copies of any inspection report which may have been prepared, with findings and evaluations. Maintenance inspections shall be performed at the discretion of the Township. All reasonable costs for said inspections shall be borne by the Landowner and payable to the Township.
12. Landowner hereby grants and conveys to the Township, its authorized agents and employees, a non-exclusive access easement over the Property for the sole purposes of: inspecting the Stormwater Management Facilities; maintaining, when necessary, these Facilities; curing any default by Landowner; and exercising the rights granted to the Township under this Agreement.
13. In the event of an emergency or the occurrence of special or unusual circumstances or situations, the Township may enter the Property, even if the Landowner is not immediately available, without notification or identification, to inspect the Stormwater Management Facilities and to perform any necessary maintenance and repairs to the facilities, if the health, safety or welfare of the citizens is at jeopardy. Under such circumstances, the Township shall notify the Landowner of any inspection, maintenance or repair undertaken within five days of the activity. Landowner shall reimburse the Township for its costs.
14. It is expressly understood and agreed that the Township is under no obligation to maintain or repair any of the Stormwater Management Facilities on the Property, and, in no event shall this document be construed to impose any such obligation upon the Township.
15. In the event the Township, pursuant to this Agreement, performs work of any nature on the Stormwater Management Facilities on the Property or expends any funds in performance of said work on account of Landowner’s failure to perform such work, Landowner shall reimburse the Township within 30 days of receipt of an invoice for all costs and expenses (direct and indirect) incurred by the Township related to such work. If this invoice is not paid within said thirty-day period, the Township may enter a lien against the Property in the amount of such costs, or may proceed to recover its costs through proceedings in equity or at law as authorized under provisions of the Pennsylvania Second Class Township Code, 53 P.S. §§ 65101 et seq.
16. Landowner releases Bedminster Township, its engineer, solicitor and all other agents, servants or employees from all damages, accidents, casualties, occurrences, claims, losses, liabilities or any other demand for money or damages whatsoever, including, without limitation, all attorneys’ fees, arising out of or related in any way to the construction, presence, existence or maintenance of the Stormwater Management Facilities on the Property; the grant of this Agreement; Landowner’s compliance with this Agreement or the exercise of the rights granted to the Township by this Agreement. Furthermore, Landowner warrants and shall forever defend against any such claims. In the event a claim is asserted against the Township, its engineer, solicitor and all other agents, servants or employees, the Township shall promptly notify Landowner, and Landowner shall defend, at its own expense, any suit based on such claim. If any judgment or claims against the Township, its engineer, solicitor and all other agents, servants, or employees, shall be allowed, Landowner shall pay all costs and expenses in connection therewith.
17. If Township determines that a violation of the terms of this Agreement has occurred or is threatened, it shall give written notice to Landowner of such violation, along with a list of responsibilities which have not been properly performed by Landowner, and demand corrective action sufficient to cure the violation. Landowner shall have 20 days to accomplish, to the Township’s satisfaction, the responsibilities on the list. If Landowner fails to cure the violations within these 20 days after receipt of notice thereof from Township, Township may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Agreement and to enjoin the violation, ex parte as necessary, by temporary or permanent injunction. Township’s remedies described in this Agreement shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
Landowner agrees that Township’s remedies at law for any violation of the terms of this Agreement are inadequate and that Township shall be entitled to the injunctive relief described above, both prohibitive and mandatory, in addition to such other relief to which Township may be entitled, including specific performance of the terms of this Agreement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies.
All reasonable costs incurred by Township in enforcing the terms of this Agreement against Landowner, including, without limitation, costs and expenses of suit, and reasonable attorneys’ fees, shall be borne by Landowner, if Township prevails.
Forbearance by Township to exercise its rights under this Agreement in the event of any breach of any term of this Agreement by Landowner shall not be deemed or construed to be a waiver by Township of such terms, or of any subsequent breach of the same, or any other term of this Agreement, or of any of Township’s rights under this Agreement. No delay or omission by Township in the exercise of any right or remedy upon any breach by Landowner shall impair such right or remedy or be construed as a waiver. Landowner hereby waives any defense of laches, estoppel or prescription.
In addition, upon failure of Landowner to fulfill any of its obligations under this Agreement, after notice to do so is provided as required above, the Township may enter upon the Property and take such necessary and prudent work needed, in its sole and absolute discretion, to bring Landowner into compliance with this Agreement. All such work shall be conducted at Landowner’s expense, and Landowner hereby agrees to assume and pay all costs incurred by the Township in completing this work, including a 20% surcharge for the Township’s administrative expenses, all professional fees and costs, and any costs associated with the filing of a municipal lien or lawsuit. In the event that Landowner fails to pay all sums due to Township for this work within 30 days of demand therefor, the Township is expressly authorized to collect these sums in the manner prescribed by law for the collection of municipal claims and liens, and, in so doing, may claim all legal fees, costs and expenses associated therewith, as authorized by Act 1996-1.
18. This Agreement shall be recorded with the Bucks County Recorder of Deeds. This Agreement is appurtenant to Property and shall be construed to be covenants running with the land binding upon the Landowner, its heirs, successors and assigns.
19. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns, and the terms “Landowner,” “Bedminster Township,” and “Township” herein shall include their respective heirs, successors and assigns.
20. The parties agree that this Agreement contains all of the agreements between the parties regarding the operation and maintenance of the Stormwater Management Facilities and that there are no other agreements or representations made by either of them. This Agreement sets forth the entire understanding between the parties and any representations, oral or written, not contained therein, are without effect.
21. Landowner shall not assign this Agreement, in whole or any part, to any person or other entity without the prior written consent of Township. Any attempt at assignment without the prior written consent of Township shall be null and void, not binding on Township, and the same shall constitute a default under this Agreement.
22. This Agreement may not be modified except by written agreement of the parties.
23. It is expressly understood and agreed that no third party beneficiaries are created by this Agreement.
24. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania and Ordinances of Bedminster Township. All the parties to this Agreement hereby consent to the exclusive jurisdiction of the Court of Common Pleas of Bucks County, Pennsylvania regarding any dispute arising out of or in connection with this Agreement. All the easement rights and responsibilities shall be exercised in compliance with all applicable laws, ordinances, rules and regulations along with all approvals granted by all governmental authorities having jurisdiction over the Property and/or the Project, including, without limitation, Bedminster Township.
25. If any ambiguity or ambiguities in this Agreement should be claimed by either Landowner or Township, or if any court of competent jurisdiction should determine that any ambiguity exists in this Agreement, any such ambiguity shall be resolved in favor of Township and against Landowner.
26. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid, unenforceable, unconstitutional or void, for any reason, only such provision shall be illegal, invalid, unenforceable, unconstitutional or void and the remainder of this Agreement shall be in full force and effect.
27. In the event that any of the provisions of this Agreement should, for any reason whatsoever, not be noted or recited in any subsequent deed for the Property or any portion thereof, such terms, conditions and restrictions shall attach to the Property or any portion thereof under and pursuant to this Agreement notwithstanding the absence of such provisions in said deed.
BEDMINSTER TOWNSHIP
STORMWATER FACILITIES OPERATION AND MAINTENANCE AGREEMENT _______________________Subdivision
(Signatures)
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereby cause this Agreement to be executed the day and year first above written.
LANDOWNER ____________________________________
Witness: ____________________________ By: _____________________________________
Name:
Title:
TOWNSHIP BEDMINSTER TOWNSHIP
BOARD OF SUPERVISORS
Approved by the proper action of the Board of Supervisors of Bedminster Township on the ________ day of _________________________, A.D., 20_____, at an official public meeting of the Township with a quorum present and voting, with the proper officers of the Township being directed to execute this Agreement and the Township Secretary or Assistant Secretary, being directed to note this action upon the minutes of said meeting.
_________________________________
Chair
_________________________________
Vice-Chair
_________________________________
Member
BEDMINSTER TOWNSHIP
STORMWATER FACILITIES OPERATION AND MAINTENANCE AGREEMENT ________________________Subdivision
(Acknowledgments)
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF __________________________ :
ON THIS _______ day of __________________, A.D., 20___, before me, a Notary Public, personally appeared ____________________________________, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
___________________________________(SEAL)
Notary Public
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF BUCKS :
ON THIS _______day of ________________, A.D., 20___, before me, a Notary Public, personally appeared __________________________________________________, who acknowledged that they are the Supervisors of Bedminster Township, and as such, being authorized to do so, executed the foregoing instrument on its behalf for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_____________________________________(SEAL)
(Ord. 239, passed 10-14-2020)