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15.3.1 Performance security may be required.
(A) The Ordinance Administrator may, at his or her discretion, require the submittal of a performance security or bond with surety, cash escrow, letter of credit, or other acceptable legal arrangement prior to issuance of a permit in order to ensure that the structural BMPs are:
(1) Installed by the permit holder as required by the approved stormwater management permit; and/or
(2) Maintained by the owner as required by the operation and maintenance agreement.
(B) Amount of security.
(1) Installation security. The amount of an installation performance security shall be the total estimated construction cost of the BMPs approved under the permit, plus 25%.
(2) Maintenance security. The amount of a maintenance performance security shall be the present value of an annuity of perpetual duration based on a reasonable estimate of the annual cost of inspection, operation, and maintenance of the BMPs approved under the permit, at a discount rate that reflects the jurisdiction’s cost of borrowing minus a reasonable estimate of long-term inflation.
(C) Uses of performance security.
(1) Forfeiture provisions. The performance security shall contain forfeiture provisions for failure, after proper notice, to complete work within the time specified, or to initiate or maintain any actions which may be required of the applicant or owner in accordance with this ordinance, approvals issued pursuant to this ordinance, or an operation and maintenance agreement established pursuant to this ordinance.
(2) Default. Upon default of the owner to construct, maintain, repair, and, if necessary, reconstruct any structural BMP in accordance with the applicable permit or operation and maintenance agreement, the Ordinance Administrator shall obtain and use all or any portion of the security to make necessary improvements based on an engineering estimate. Such expenditure of funds shall only be made after requesting the owner to comply with the permit or maintenance agreement. In the event of a default triggering the use of installation performance security, the town shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance.
(3) Costs in excess of performance security. If the Ordinance Administrator takes action upon such failure by the applicant or owner, the town may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due.
(4) Refund. Within 60 days of the final approval, the installation performance security shall be refunded to the applicant or terminated, except any amount attributable to the cost (plus 25%) of landscaping installation and ongoing maintenance associated with the BMPs covered by the security. Any such landscaping shall be inspected one year after installation with replacement for compliance with the approved plans and specifications and, if in compliance, the portion of the financial security attributable to landscaping shall be released.
15.3.2 Notice to owners.
(1) Deed recordation and indications on plat. The applicable operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance, as applicable, pertaining to every structural BMP shall be referenced on the final plat and shall be recorded with the County Register of Deeds upon final plat approval. If no subdivision plat is recorded for the site, then the operations and maintenance agreement, conservation easement or dedication, and acceptance into public maintenance, as applicable, shall be recorded with the County Register of Deeds so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles.
(2) Signage. Where appropriate in the determination of the Ordinance Administrator to assure compliance with this article, structural BMPs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection along with that person or entity’s contact information including phone number. The sign shall be maintained so as to remain visible and legible. In addition, danger and no trespassing signs shall be posted around any structural BMP.
15.3.3 Records of installation and maintenance activities. The owner of each structural BMP shall keep records of inspections, maintenance, and repairs for at least five years from the date of creation of the record and shall submit the same upon reasonable request to the Ordinance Administrator.
15.3.4 Nuisance. The owner of each stormwater BMP, whether a structural or non-structural BMP, shall maintain it so as not to create or result in a nuisance condition.
15.3.5 Inspection easement. Every structural BMP installed pursuant to this article shall be made accessible for inspection by an inspection easement. The easement shall be recorded and its terms shall specify who may make use of the easement and for what purposes.
15.3.6 Enforcement and violations.
(A) Responsible persons/entities.
Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair, or maintain any structure, BMP, engineered stormwater control, practice, or condition in violation of this article shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this section. Persons subject to the remedies and penalties set forth herein may include any architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs.
For the purposes of this article, responsible person(s) shall include, but not be limited to:
(1) Person maintaining condition resulting in or constituting violation. An architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; and
(2) Responsibility for land or use of land. The owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person who has control over, or responsibility for, the use or development of the property.