(A) In general.
(1) Prior to the conveyance or transfer of any lot or building site to be served by a SCM pursuant to this chapter, and prior to issuance of any permit for development requiring a 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 SCM. Until the transference of all property, sites or lots served by the 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 SCM and shall state the terms, conditions and schedule of maintenance for the SCM. In addition, it shall grant to the town a right of entry in the event that the Storm Water Administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair or reconstruct the SCM; however, in no case shall the right of entry, of itself, confer an obligation on the town to assume responsibility for the SCM.
(B) The operation and maintenance agreement.
(1) The operation and maintenance agreement must be approved by the Storm Water 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 Storm Water Administrator within 14 days following its recordation.
(2) For all 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:
(a) Acknowledgment that the association shall continuously operate and maintain the storm water control and management facilities;
(b) Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair or reconstruction of the SCMs. If 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 SCMs, provided that the town shall first consent to the expenditure;
(c) Both developer contribution and annual sinking funds shall fund the escrow account. Prior to plat recordation or issuance of construction permits, whichever shall first occur, the developer shall pay into the escrow account an amount equal to 25% of the initial construction cost of the SCMs. Seventy-five percent of the total amount of sinking fund budget shall be deposited into the escrow account within the first 15 years following the town acceptance of the subdivision into the street maintenance system. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the association shall include an allocation into the escrow account. Any funds drawn down from the escrow account shall be replaced in accordance with the schedule of anticipated work used to create the sinking fund budget;
(d) The percent of developer contribution and lengths of time to fund the escrow account may be varied by the town depending on the design and materials of the storm water control and management facility;
(e) Granting to the town a right of entry to inspect, monitor, maintain, repair and reconstruct SCMs;
(f) Allowing the town to recover from the association and its members any and all costs the town expends to maintain or repair the SCMs or to correct any operational deficiencies. Failure to pay the town all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In the case of 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;
(g) A statement that this agreement shall not obligate the town to maintain or repair any SCMs and the town shall not be liable to any person for the condition or operation of SCMs;
(h) 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 by law; and
(i) A provision indemnifying and holding harmless the town for any costs and injuries arising from or related to the SCM, unless the town has agreed in writing to assume the maintenance responsibility for the BMP and has accepted dedication of any and all rights necessary to carry out that maintenance.
(Ord., passed 5-11-09; Am. Ord., passed 1-13-20; Am. Ord., passed 9-13-21)