(A) For all engineered stormwater controls 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 O&M Agreement shall include all of the following provisions:
(1) Acknowledgment that the association shall continuously operate and maintain the engineered stormwater controls according to the specifications laid out in the Operation and Maintenance Plan.
(2) Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the engineered stormwater controls. If engineered stormwater controls are not performing adequately or as intended or are not properly maintained, the City in its sole discretion, may remedy the situation, and in such instances the City 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 engineered stormwater controls, provided that the City shall first consent to the expenditure.
(3) 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 15% of the initial construction cost of the engineered stormwater controls. Two-thirds of the total amount of sinking fund budget shall be deposited into the escrow account within the first five years and the full amount shall be deposited within ten years following initial construction of the engineered stormwater controls. 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.
(4) The percent of developer contribution and lengths of time to fund the escrow account may be varied by the City depending on the design and materials of the engineered stormwater controls.
(5) Granting to the City a right of entry to inspect, monitor, maintain, repair, and reconstruct engineered stormwater controls.
(6) Allowing the City to recover from the association and its members any and all costs the City expends to maintain or repair the engineered stormwater controls or to correct any operational deficiencies. Failure to pay the City all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the City 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.
(7) A statement that this agreement shall not obligate the City to maintain or repair any engineered stormwater controls, and the City shall not be liable to any person for the condition or operation of engineered stormwater controls.
(8) A statement that this agreement shall not in any way diminish, limit, or restrict the right of the City to enforce any of its chapters as authorized by law.
(9) A provision indemnifying and holding harmless the City for any costs and injuries arising from or related to the engineered stormwater controls, unless the City has agreed in writing to assume the maintenance responsibility for the engineered stormwater controls and has accepted dedication of any and all rights necessary to carry out that maintenance.
(Ord. 23-O-07, passed 4-10-2023)