(A) Permittee responsibility. The permittee shall be responsible for the installation, good repair, maintenance, proper functioning, and ultimate removal of all temporary and permanent EPSC measures.
(B) Fiscal surety required. For all land disturbing activities subject to a Type I or Type II review under this chapter, the permittee may be required to post a fiscal surety, consisting of a performance bond or other instrument, acceptable to, and approved by, the MSD. When a fiscal surety is required, the following conditions will apply.
(1) Timing of surety. The surety shall be posted no later than the issuance of a site disturbance permit or, with the MSD approval, prior to issuance of a certificate of occupancy, as applicable.
(2) Combination with other appropriate bonds. Whenever feasible, the fiscal surety for EPSC required by this section may be combined with and posted as part of the sanitary sewer lateral extension bond or subdivision performance bond required for all subdivisions approved pursuant to the Development Code.
(3) Amount of surely. For activities subject to Type I review, the amount of the surety for EPSC shall be the cost of the approved EPSC measures to be installed on the site and any prescribed site revegetation or restoration measures, including labor costs. The MSD shall have the discretion to set alternate amounts for or to waive a surety for activities subject to Type II review that are commensurate with the complexity or size of the project. The final amount of the surely shall be determined by the MSD and shall be in addition to any other surety required as part of subdivision or development approval.
(4) Use of surety. If at any time following the period allowed to the permittee to complete his or her obligations under this chapter, the MSD finds that:
(a) The required temporary or permanent improvements or control measures have not been installed or maintained properly;
(b) The required temporary or permanent improvements are not in good repair or functioning properly; and
(c) 1. Required revegetation and restoration of a site have not been completed as required;
2. In addition to other enforcement remedies, the MSD may declare the permittee to be in default if it does not appear that the improvements or controls will be completed or repaired within a reasonable time considering the potential for harm, inconvenience, nuisance, or annoyance to others including nearby property owners; and
3. Upon declaration of default, the MSD shall demand such amounts from the surety as required to remedy the default. In the event that amounts available from the surety are sufficient to cover the costs of remedying the default, such surety shall be collected and used in full in such proportion as the MSD determines to be just and equitable based upon apparent responsibility for the default. Anyone claiming to be aggrieved by such determination shall have, as his or her exclusive remedy, a cause of action for contribution or indemnify against the parties responsible for the default. The determination of the MSD shall not be used as evidence in support of or against responsibility in such cause of action and the MSD shall not be made a party to such action.
(5) Release of surety. Application for release of a fiscal surety required by this chapter may be made by filing a certificate with the MSD bearing a notice that false statements made therein are punishable. The MSD may make an inspection of the property and shall grant a release of the surety upon determining that:
(a) Site construction is finished;
(b) Final stabilization has been completed;
(c) The site disturbance permit has been terminated;
(d) The required improvements and controls are properly installed, are in good repair, and are functioning properly;
(e) Temporary controls have been removed; and
(f) There is no reason to believe that construction on the lot has or will cause the malfunctioning of installed improvements on other property.
(6) Imposition of lien. In addition to or as an alternative to use of any fiscal surety, the MSD shall have the option of placing a lien on any property on which the permittee has failed to properly install, keep in good repair, or maintain the proper functioning of all required temporary and permanent EPSC measures or has failed to complete required revegetation or restoration measures. The amount of the lien may cover necessary costs of ensuring compliance with applicable provisions of this chapter, including, but not limited to, any necessary remedial and restoration measures to alleviate the adverse impacts or off-site degradation, and all associated administrative costs.
(Ord. 26, passed 9-25-2001)