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§ 14-5-2-11  CONSTRUCTION SITE RESPONSIBILITY BY PROPERTY OWNER.
   (A)   For projects that disturb one acre or more, or less than one acre but are part of a larger common plan of development exceeding one acre, the property owner is to provide the Construction General Permit (CGP) Electronic Notice of Intent (eNOI) documentation that contains the property owner name and contact information a minimum of 14 days prior to earth disturbance and prior to obtaining Work Order or Building Permit approval. To be accepted, the eNOI is to be properly filled out and certified. If the eNOI is a Low Erosivity Waiver by the contractor, then an Erosion and Sediment Control Permit per § 14-5-2-11(B) is to be approved by the city.
   (B)   For projects that are less than one acre and are not part of a larger common plan of development, but meet the criteria as specified in § 14-5-2-12(B)(6), an approved Erosion and Sediment Control Permit is required prior to earth disturbance, Work Order approval and Building Permit approval.
      (1)   The Erosion and Sediment Control Permit or eNOI holder must be either the owner of the property or an authorized agent of the owner in order for the permit to legally cover the activities occurring at the site. If the permit holder is other than the owner, evidence of delegation of authority acceptable to the city shall be provided prior to issuance of a permit by the city.
      (2)   A project will be approved for earth disturbance, work order, or building permit only upon approval of plans and conditions by the City Engineer.
   (C)   Construction site inspections and quality controls shall include:
      (1)   Self-inspections by permittee. At a minimum a routine compliance self-inspection is required to review the project for compliance with the Construction General Permit once every 14 days and after any precipitation even of 1/4 inch or greater until the site construction has been completed and the site determined as stabilized by the city. Reports of these inspections shall be kept by the person or entity authorized to direct the construction activities on the site and shall be conducted during progress of the work, during work suspensions, and until final acceptance of site stabilization by the city. An owner's or his/her agent's failure to properly maintain records shall subject that owner to the penalty provisions of §§ 14-5-2-1 et seq.
      (2)   City compliance inspections. The city will conduct routine compliance inspections of projects for compliance with the Construction General Permit. The city will conduct routine compliance inspections of all construction projects cumulatively disturbing one acre or more or as specified in § 14-5-2-12(B)(6) for compliance with the Construction General Permit. Site inspections will be followed by any necessary compliance or enforcement action to ensure corrective action has occurred. Corrective action is to be completed within seven days or the owner is subject to escalation per §§ 14-5-2-1 et seq. All projects will be inspected at completion for confirmation of stabilization.
         (a)   Construction site compliance. If the city finds that the site is not in compliance with the Construction General Permit and that stormwater controls will not prevent sediment and waste from entering the city's drainage system and/or leaving the construction site the city may direct the owner or his/her agent by written order to come into compliance. If deficiencies are required to be mitigated, the owner or his/her agent shall be verbally notified with a follow-up written confirmation occurring later. It shall be the duty of the owner or his/her agent to immediately take all necessary steps to prevent such migration of sediment and waste off the premises or from entering receiving waters. Delivery of an order by the city to the owner or his/her agent shall be deemed to be notice thereof, and binding upon the owner. An owner's or his/her agent's failure to substantially comply with the order shall subject that owner to the penalty provisions of §§ 14-5-2-1 et seq.
         (b)   Maintenance of control measures. The property owner or the owner's agent carrying out the Construction General Permit requirements shall maintain all control measures, retaining walls, structures, plantings, and other protective devices. Should the applicant or any other subsequent property owners fail to maintain the temporary control facilities, retaining walls, structures, plantings, and other protective devices, the city reserves the authority to enter affected property, provide needed maintenance, and to charge the owner for the work performed by the city or its contractors and to place a lien on the property to cover the costs of said actions. Such municipal lien shall be a statutory lien against the real property. This provision is in addition to the city's ability to assess penalties or pursue any other remedies as necessary to effectuate the purpose of §§ 14-5-2-1 et seq.
            1.   The maintenance of facilities constructed at private expense on public property is the responsibility of the owner or owner's agent until permanent facilities are in place.
            2.   The developer shall be responsible for maintaining or replacing temporary crossing structures for a period of six years or until a permanent structure is built, whichever comes first. The city shall maintain temporary crossings which are designed and built such that they may be directly incorporated into the ultimate facilities.
      (3)   The city will utilize sanctions and penalties to enforce upon violations of permit requirements. Progressive enforcement escalation procedures will be used and strictly enforced for recalcitrant or repeat offenders.
   (D)   Post-construction maintenance shall be performed as follows:
      (1)   Except as otherwise noted herein, all public stormwater facilities shall be maintained by the city or other public body. The maintenance of multiple use facilities to which the general public is denied access shall be the responsibility of the owners and shall be performed to City Engineer standards. The City Engineer may allow private maintenance within public right-of-way or easement provided that adequate guarantees and indemnifications are supplied.
      (2)   Private stormwater facilities:
         (a)   Maintenance of drainage facility - The owner shall maintain the drainage facility at the owner's cost in accordance with §§ 14-5-2-1 et seq.
         (b)   City compliance inspections - The city's post-construction inspection program will begin routine compliance inspections of projects at three years after final acceptance of the BMP's. Notwithstanding, nothing herein prevents the city from performing an unscheduled inspection when reasonably necessary to implement the goals and requirements of §§ 14-5-2-1 et seq.
         (c)   City's right of entry - No owner, occupant or any other person having charge, care or control of any building or premises shall fail or neglect, after proper request is made, as herein provided, to promptly permit entry by authorized city officials for the purpose of inspection and investigation pursuant to §§ 14-5-2-1 et seq., or to provide maintenance or repair of the drainage facilities as it deems appropriate without liability to the city. In the event that the city is denied reasonable entry for purposes of inspection on a voluntary basis, the authorized city official shall obtain a proper inspection warrant or other remedy provided by law to secure entry. In the event of an emergency, where immediate entry is necessary to protect life or property, the city has the right to enter and perform inspections, maintenance or repair of the drainage facilities as it deems appropriate, without liability to the city.
         (d)   Demand for construction or repair - The city may send written notice ("notice") to the owner requiring maintenance, construction, or repair to the drainage facility within 30 days ("deadline") of receipt of the notice, and the owner, at their expense, must comply with the requirements of the notice by the deadline provided.
         (e)   Failure to perform by owner and emergency work by city - If the owner fails to comply with the terms of the notice by the deadline, or if the city determines that an emergency condition exists, the city may perform the work itself. The city may assess the owner for the cost of the work and for any other expenses or damages, which result from owner's failure to perform. The owner shall pay the city the amount assessed. If the owner fails to pay the city within 30 days after the city gives the owner written notice of the amount due, the city may impose a lien against owner's property for the total resulting amount.
         (f)   Liability of city for repair after notice or as a result of emergency - The city shall not be liable to the owner for any damages resulting from the city's maintenance or repair following notice to the owner as required in §§ 14-5-2-1 et seq., or in an emergency, unless the damages are the result of the reckless conduct or gross negligence of the city.
         (g)    Indemnification - The city, its officials, agents and employees are indemnified and shall be held harmless from all claims, actions, suits and proceedings, whether known or unknown arising out of, or resulting from the owner's negligent maintenance, construction, repair or use of the drainage facility. Such indemnification shall encompass actions brought by third parties against any non-city party when such actions are related to the aforementioned drainage facility. Furthermore, and notwithstanding the provisions of Section 56-7-1 NMSA 1978 (if applicable), such indemnification specifically extends to liability, for all claims, whether known or unknown, damages, losses or expenses, including attorneys' fees, arising out of: (1) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications (except those created by the city or its agents or employees); or (2) the giving of or the failure to give directions or instructions by the city.
         (h)   Sections 14-5-2-1 et seq. are not intended to replace, supersede, undermine or otherwise alter or replace any existing covenant or other written agreement between the city and any property owner. To the extent that the provisions herein conflict with the covenant or other agreement's language, then the covenant language or other agreement's language shall apply.
('74 Code, § 7-9-11)  (Ord. 63- 1982; Am. Ord. 89-1989; Am. Ord. 2013-016; Am.Ord. 2018-020)