(A) In general.
(1) Prior to the conveyance or transfer of any lot or building site to be served by a structural SCM pursuant to this chapter, and prior to issuance of any permit for development or redevelopment requiring a structural SCM pursuant to this chapter, the applicant or owner of the site must execute an operation and maintenance agreement that shall be binding on all subsequent owners of the site, portions of the site, and lots or parcels served by the structural SCM in a form acceptable to the Stormwater Administrator. Until the transference of all property, sites, or lots served by the structural SCM, the original owner or applicant shall have primary responsibility for carrying out the provisions of the maintenance agreement.
(2) The operation and maintenance agreement shall require the owner or owners to maintain, repair and, if necessary, reconstruct the structural SCM, and shall state the terms, conditions, and schedule of maintenance for the structural SCM. In addition, it shall grant to the town a right of entry in the event that the Stormwater Administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural SCM; however, in no case shall the right of entry, of itself, confer an obligation of the town to assume responsibility for the structural SCM. In the event the town directs the correction, repair, replacement, or maintenance of the system or structure in writing and the actions are not satisfactorily performed within a reasonable time (but not greater than 120 days), the town (or its contractors) may, after reasonable notice, enter the land and perform all the necessary work and may assess the owner of the facility with the cost of the work performed or the town can seize all or part of the escrow or other fund set aside by the applicant or owner for perpetual maintenance. The owner served by the facility shall be jointly responsible to the town for the maintenance of the facility and liable for any costs incurred by the town pursuant to the operation and maintenance agreement. All properties are jointly subject to the imposition of the liens for such costs.
(3) The operation and maintenance agreement must be approved by the Stormwater Administrator prior to plan approval, and it shall be referenced on the final plat and shall be recorded with the county Register of Deeds upon final plat approval. A copy of the recorded maintenance agreement shall be given to the Stormwater Administrator within 14 days following its recordation.
(B) Special requirement for homeowners' and other associations. For all structural SCMs required pursuant to this chapter and that are to be or are owned and maintained by a homeowners' association, property owners' association, or similar entity, the required operation and maintenance agreement shall include all of the following provisions:
(1) Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities.
(2) Establishment of an escrow account acceptable to the town, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the structural SCMs. If structural SCMs are not performing adequately or as intended or are not properly maintained, the town, in its sole discretion, may remedy the situation, and in such instances the town shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural SCMs, provided that the town shall first consent to the expenditure.
(3) Granting to the town a right of entry to inspect, monitor, maintain, repair, and reconstruct structural SCMs.
(4) Allowing the town to recover from the association and its members any and all costs the town expends to maintain or repair the structural SCMs or to correct any operational deficiencies. Failure to pay the town all of its expended costs, after45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the town shall thereafter be entitled to bring an action against the association and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both. Interest, collection costs, and attorney fees shall be added to the recovery.
(5) A statement that this agreement shall not obligate the town to maintain or repair any structural SCMs, and the town shall not be liable to any person for the condition or operation of structural SCMs.
(6) A statement that this agreement shall not in any way diminish, limit, or restrict the right of the town to enforce any of its ordinances as authorized bylaw.
(7) A provision indemnifying and holding harmless the town for any costs and injuries arising from or related to the structural SCM, unless the town has agreed in writing to assume the maintenance responsibility for the SCM and has accepted dedication of any and all rights necessary to carry out that maintenance.
(Ord. 2020-11-01, passed 11-16-20)