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HomeMy WebLinkAboutSP-22-003 - Supplemental - 1795 Shelburne Road (24)1 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX STORMWATER SYSTEM MAINTENANCE AND COST SHARING AGREEMENT This Stormwater System Maintenance and Cost Sharing Agreement (“Agreement”) is made and entered into this 31st day of October, 2019 by and between Catamount/Middlebury, LLC, a Vermont limited liability company (“Catamount Middlebury”) and Catamount/South Burlington, LLC, a Vermont limited liability company (“Catamount South Burlington”) (each a “Party” and collectively the "Parties"). WHEREAS, Catamount Middlebury owns the real property numbered 68 Nesti Drive, South Burlington, Vermont (“68 Nesti Drive”), being all and the same land and premises conveyed by Warranty Deed from Charles Freihofer Baking Company, Inc. to Catamount/Middlebury, LLC dated August 17, 2005 and recorded August 25, 2005 in Volume 724 at Pages 683-687 of the City of South Burlington Land Records, together with the lands and premises conveyed by Quit Claim Deed from Catamount/South Burlington, LLC dated on or about the date hereof and recorded contemporaneously with this Agreement, being a parcel of land with improvements thereon identified as “Vol. 1029, Pg. 229, ‘Parcel One’” and as “Catamount/Middlebury, LLC Vol. 724, Pg. 683” on a plat entitled “Sketch Plan/Boundary Line Adjustment, Catamount/Middlebury, LLC and Catamount/South Burlington, LLC, 68 Nesti Drive & 1785-1795 Shelburne Road, South Burlington, Vermont” prepared by Civil Engineering Associates, Inc., dated January 5, 2018, last revised April 26, 2018, and recorded in Map Slide Map Slide 628 at Page 2 of the City of South Burlington Land Records (the “Plat”). WHEREAS, Catamount South Burlington owns the real property numbered 1795 Shelburne Road, South Burlington, Vermont (“1795 Shelburne Road”; together with 68 Nesti Drive, the “Properties” and each is a “Property”), being all and the same land and premises conveyed by Warranty Deed from J.W.J. Realty, Inc. to Catamount/South Burlington, LLC, dated September 30, 2011 and recorded in Volume 1029 at Page 229 of the City of South Burlington Land Records, , together with the lands and premises conveyed by Quit Claim Deed from Catamount/Middlebury, LLC dated on or about the date hereof and recorded contemporaneously with this Agreement, being a parcel of land with improvements thereon identified as “Catamount/South Burlington LLC Vol. 1029, Pg. 229, ‘Parcel Two’” on the Plat. WHEREAS, the Properties will be served by common infrastructure to manage the collection, conveyance, detention, and discharge of stormwater and surface water from the impervious surfaces located on the Properties (which improvements are referred to herein as the "Stormwater System"), and are benefited by Stormwater Discharge Permit No. 6432-INDS, Project ID No. EJ10-0060, issued by the Vermont Agency of Natural Resources (the “Agency”) on March 27, 2018, Notice of Issuance of which is recorded in Volume 1416 at Page 111 of the City of South Burlington Land Records, (as it may be amended, renewed, or replaced, the “Permit"); and WHEREAS, the Permit, which was issued to Catamount Middlebury and to Catamount South Burlington as co-permittees, and which authorizes the discharge of stormwater runoff from the impervious surfaces of the Properties to Bartlett Brook and to an unnamed tributary to Lake Champlain, requires the construction and maintenance of the Stormwater System; and WHEREAS, as of the date hereof 70.16% of the existing impervious surface area drained by the Stormwater System (151,948± sq. ft.) is situated on 68 Nesti Drive, and 29.84% of the existing impervious surface area drained by the Stormwater System (64,624± sq. ft.) is situated on 1795 Shelburne Road (the foregoing percentages are referred to in this Agreement as the “Impervious Percentages”); and WHEREAS, the Parties wish to define their respective responsibilities for the maintenance of the Stormwater System and payment of fees and costs required by or arising out of the Permit, including but not limited to permit application fees, annual operating fees, renewal fees, administrative processing fees, 2 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX and fines or penalties assessed under the Permit (“Fees”, which does not include the cost of performing maintenance required under the Permit); and WHEREAS, the Permit requires the construction an underground stormwater chamber system to be incorporated into the Stormwater System (“Delayed Construction Elements”); and WHEREAS, the Parties wish to define their respective responsibilities for constructing the Delayed Construction Elements and for paying the costs of such construction (“Delayed Construction Costs”); NOW THEREFORE, in consideration of these mutual premises and covenants herein contained, and other good and valuable consideration, the Parties covenant and agree as follows: 1. Co-Permittees. The Parties agree that they are and will be co-permittees under the Permit. The Parties shall reasonably cooperate in all matters relating to the Permit and its amendment, renewal, replacement, and transfer from time to time. Without limiting the foregoing, if a Party desires to modify or expand the impervious surface on its Property in a manner that requires modifications to the Stormwater System and/or to the Permit, the other Party shall reasonably cooperate provided that it shall not be obligated to incur out of pocket costs or expenses in connection with such cooperation. 2. Permit Management. Catamount South Burlington hereby authorizes Catamount Middlebury to manage all matters associated with the Permit on behalf of both Parties, including executing all applications for amendments or renewals, complying with all reporting requirements, and providing any other documentation required by the Permit. Catamount South Burlington hereby authorizes Catamount Middlebury and its agents to enter onto 1795 Shelburne Road for the purposes of fulfilling its rights and obligations under this Agreement. Prior to filing any application for amendments or renewals, Catamount Middlebury shall furnish Catamount South Burlington with copies of such applications not less than ten (10) days before filing the same with the governmental agencies having jurisdiction over such permits. 3. Maintenance. Each Party shall be solely responsible for the maintenance of all components of the Stormwater System located on its Property, including any and all costs related thereto. All such maintenance shall be accomplished in compliance with the requirements of the Permit. If Catamount Middlebury chooses to undertake the maintenance of both Properties at the same time, it shall notify Catamount South Burlington of such intention and then each Party shall be responsible for the payment of the cost of such maintenance in the same proportion as each Party’s ownership of the impervious surface area drained by the Stormwater System (initially such percentages are the Impervious Percentages stated above, but such percentages shall be modified if the square footages of impervious surfaces are modified), and Catamount South Burlington shall reimburse Catamount Middlebury for its share of the costs of performing such maintenance within thirty (30) days of its receipt of an invoice therefor. 4. Permit Fees. The Parties shall be responsible for the payment of all Fees required by the Permit, in the same proportion as each Party’s ownership of the impervious surface area drained by the Stormwater System (initially such percentages are the Impervious Percentages stated above, but such percentages shall be modified if the square footages of impervious surfaces are modified). Catamount Middlebury shall pay such Fees initially, and Catamount South Burlington shall reimburse Catamount Middlebury its share of the Fees within thirty (30) days of its receipt of an invoice therefor. 5. Negligence, Etc. Each Party shall be responsible for performing any work resulting or arising from its negligence, its failure to abide by the Permit conditions or its failure to comply with applicable law. Neither Party shall be obligated to perform any work arising from the negligence or willful misconduct of the other Party. Each Party shall be responsible for paying any fines or penalties which may be assessed against the Parties by the Agency resulting or arising from its negligence, its failure to 3 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX abide by the Permit conditions or its failure to comply with applicable law. The costs of any maintenance or repairs and the costs of Permit compliance, including without limitation engineering costs, attorneys’ fees, penalties and fines, that are caused by the negligent or intentional actions or omissions of only one Party shall be borne solely by the responsible Party, and the non-responsible Party shall bear no obligation to contribute to or share such costs. 6. Delayed Construction. At such time as Catamount Middlebury constructs the Delayed Construction Elements, Catamount South Burlington shall reimburse Catamount Middlebury for its share of the Delayed Construction Costs in the proportion that the impervious surfaces located on each Party’s Property utilize the Delayed Construction Elements (initially, the impervious surfaces located on 68 Nesti Drive utilize 76% of the Delayed Construction Elements and the impervious surfaces located on 1795 Shelburne Road utilize 24% of the Delayed Construction Elements, however, such percentages shall be modified if the square footages of impervious surfaces utilizing the Delayed Construction Elements are modified). Catamount South Burlington shall reimburse Catamount Middlebury for its share of the Delayed Construction Costs within thirty (30) days of its receipt of an invoice therefor that includes backup documentation substantiating the actual cost of construction. The Parties agree that the Delayed Construction Elements do not include the improvements required for the collection and conveyance of stormwater to the underground stormwater chamber system, and that each Party shall be responsible for the cost of construction and maintenance of the improvements required for the collection and conveyance of stormwater from the impervious surfaces on their respective Properties to the Delayed Construction Elements. 7. Alterations. If either Party increases or decreases the square footage of impervious surfaces on its Property that utilizes the Stormwater System or the Delayed Construction Elements, then the cost sharing percentages established by this Agreement shall be updated to reflect such modifications. 8. Terms of Usage. In any instance where one Party enters onto the Property of the other Party to exercise its rights under this Agreement or to perform or fulfill any of its obligations under this Agreement, such entry onto the Property of the other Party shall be performed and undertaken subject to the Terms of Usage set forth on Exhibit A attached hereto and made a part hereof. 9. Miscellaneous. Any amendments to this Agreement must be in writing and signed by the Party to be charged. The Parties agree that either Party may record this Agreement in the City of South Burlington Land Records without further consent from the other Party. This Agreement shall run with title to the Properties and shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. In the event any action or proceeding is brought by either Party against the other under or to enforce this Agreement, the substantially prevailing Party shall be entitled to recover its attorney’s fees and other costs and expenses from the other Party. Signature Page to Follow 4 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX Catamount/Middlebury, LLC _________________________ By: ____________________________________ Witness Tracy L. Cresta, Manager STATE OF VERMONT COUNTY OF CHITTENDEN, SS. At Burlington, Vermont, this __ day of October, 2019, personally appeared Tracy L. Cresta, Manager of Catamount/Middlebury, LLC, and she acknowledged this instrument, by her subscribed, to be her free act and deed, and the free act and deed of Catamount/Middlebury, LLC. Before me,_________________________ Notary Public My commission expires: 1.31.21 My Commission Number: ____________________ Catamount/South Burlington, LLC _________________________ By: ____________________________________ Witness Tracy L. Cresta, Manager STATE OF VERMONT COUNTY OF CHITTENDEN, SS. At Burlington, Vermont, this __ day of October, 2019, personally appeared Tracy L. Cresta, Manager of Catamount/South Burlington, LLC, and she acknowledged this instrument, by her subscribed, to be her free act and deed, and the free act and deed of Catamount/South Burlington, LLC. Before me,_________________________ Notary Public My commission expires: 1.31.21 My Commission Number: ____________________ 5 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX Exhibit A Terms of Usage In order to ensure that each Party enjoys the full benefit of the Permit, the Stormwater System, and the rights granted in this Agreement, and to protect each Party from the other Party’s exercise of its rights with respect to the Stormwater System, the Parties agree each Party is hereby granted such temporary rights for access onto the other Party’s Property as may be reasonably required to exercise the construction, installation, maintenance, repair, and replacement rights granted by this Agreement, provided that all construction activities performed by a Party or by its contractors or agents on the other Party’s property shall only be performed in compliance with the Terms of Usage set forth below. As used below, the Party performing work is referred to as the “Active Party”, and the Party whose property is subject to entry by the other Party is referred to as the “Passive Party”. Each Party’s use of the rights and easements granted by this Agreement shall only be exercised subject to and in accordance with the follow terms and conditions: a. Before the Active Party performs any work on or makes entry on the Passive Party’s property for purposes of utilizing such rights and easements the Active Party shall give fifteen (15) days’ notice in writing to the Passive Party and in addition at all times when the Active Party makes use of the Passive Party’s property, the Active Party shall, and shall cause all of its contractors to, obtain and maintain in full force and effect commercial general liability insurance covering property damage and personal injury with commercially reasonable limits and incorporating commercially reasonable terms, which policies shall cover the Active Party’s use of the Passive Party’s property and the use of the Passive Party’s property by the Active Party’s agents, employees and contractors. Prior to any entry onto the Passive Party’s property, the Active Party shall provide the Passive Party with certificates evidencing such coverage to the reasonable satisfaction of the Passive Party. b. The Active Party hereby agrees, for itself and its successors and assigns, to indemnify, defend and hold harmless the Passive Party and its successors and assigns from and against any and all losses, expenses, liabilities, fines, penalties, claims, suits, damages, judgments, costs and expenses of any nature, kind or character whatsoever, and by whomsoever brought, including, costs of investigation, dispute resolution costs, defense, litigation and court costs and reasonable attorneys’ fees and expenses including the costs of enforcing any right to indemnification hereunder, pursuing insurance, costs of investigation, arising out of and/or based upon any third-party claim, suit, action, or proceeding, including, without limitation, any investigations by any governmental authority or on account of the Active Party’s breach or violation of any term, covenant or agreement set forth in this Agreement or based upon any injury to any person or loss of or damage to any property arising out of or in connection with the exercise by the Active Party or anyone claiming by, through or under the Active Party, of the Active Party's rights under this Agreement. c. The Active Party agrees, for itself and its successors and assigns, that any portion of the Passive Party’s property disturbed or affected by the Active Party’s use of the rights granted by this Agreement other than permanent improvements made within the boundaries of the Stormwater System, shall be restored to its condition immediately prior to such entry at the Active Party’s own cost and within a reasonable time. d. The Passive Party expressly retains and reserves the right to make use of the Passive Party’s property in any manner that does not prevent the Active Party’s exercise of the rights granted this Agreement. 6 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX e. The Active Party shall perform all work authorized hereby at its sole cost and expense, in accordance with the details and specifications shown on the plans approved by the Permit, as they may be amended from time to time, in a good and workmanlike manner, in compliance with the terms and conditions of all municipal, state and federal permits and approvals issued in connection therewith, and in accordance with all applicable laws, codes and regulations. The Active Party will not permit the filing or existence of any lien or encumbrance on the Passive Party’s property by reason of any work performed or materials provided to or for the benefit of the Active Party or the Active Party’s property. Before exercising any rights to utilize a construction easement granted hereby, the Active Party shall provide reasonable advance written notice to the Passive Party including a proposed schedule of dates and times and activities to be conducted in the area covered by the easements, and all work will be scheduled and coordinated to minimize interference with and disruption of activities on the Passive Party’s property. f. In the event of a breach or default by the Active Party under this Agreement, the Passive Party shall have the right to give written notice thereof to the Active Party and if such default is not cured within thirty (30) days (or if the default relates to a failure to keep insurance in place, two (2) business days) of such written notice, then in addition to all rights and remedies available at law or in equity, the Passive Party shall have the right, but not the obligation, to exercise self-help to remedy the default whereupon the defaulting party shall reimburse any costs incurred by such non defaulting party in exercising such remedy. g. Any notices, demands, requests or other communications which the parties are required or desire to give to the other(s) hereunder shall be in writing and shall be given by hand delivery, by reputable overnight courier, by mailing such notice or consent by registered or certified mail, return receipt requested, to the Passive Party or the Active Party at the addresses specified in the South Burlington Grand List, or at such other address as may be specified from time to time in writing sent to the other party by like notice. Any notice given hereunder by delivery or overnight courier shall be deemed delivered when received or when receipt is refused as evidenced by the records of the courier service. Any properly addressed notice given herein by certified mail shall be deemed delivered when the return receipt thereof is signed, except that any notice which is correctly addressed, but which is returned by the postal service as undeliverable shall be deemed to have been received on the earliest date on which the postal service attempted delivery as indicated by postal service endorsement on the return receipt form. h. All rights and liabilities under the this Agreement shall bind and shall inure to the benefit of the parties hereto and their respective successors and assigns; without limiting the foregoing, the rights and obligations set forth herein shall run with title to 68 Nesti Drive and to 1795 Shelburne Road. i. At all times that the Active Party or any of its employees, contractors, subcontractors or agents are in, on or using the Passive Party’s property, the Active Party, at its sole cost and expense, shall maintain adequate and reasonable security upon the Passive Party’s property for its own benefit and to the extent required in its sole discretion to safeguard its or their use of equipment and personal property located at the Passive Party’s property. All risk of loss and damage to the equipment and personal property of the Active Party or any of its employees, contractors, subcontractors or agents shall be borne solely by the Active Party. j. No delay or omission by any party in exercising any right or power accruing upon any non-compliance or failure of performance by the other party under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any covenant, condition, provision or performance under this Agreement shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, provision or performance of this 7 STORMWATER MAINTENANCE AND COST SHARING AGREEMENT CAT-MIDDLEBURY - CAT-SOUTH BURLINGTON ERZ REDLINE 110119.DOCX Agreement, and any such waiver, to be enforceable, shall be in writing and signed by the party against whom such waiver is sought to be enforced.