(A)   Maintenance and damage remediation.
      (1)   Maintenance during construction.
         (a)   The permittee, or his or her designee, shall be required to conduct continuing inspections of all EPSC measures, and direct the appropriate persons to make any repairs or modifications necessary, within 48 hours of the initial discovery of a control failure or violation, unless extenuating circumstances such as weather or complexity of repairs or modifications justify a longer time frame. At a minimum, such inspections shall occur every seven calendar days and within 24 hours after each storm event that produces 0.5 inches or more of precipitation.
         (b)   In addition, silt accumulation upstream of temporary controls shall be removed when the control reaches the percentage of storage capacity established for the maintenance of that particular type of control in the MSD Design Manual, Standard Specifications and Standard Drawings.
         (c)   A copy of the EPSC plan and records of all inspections, repairs, and modifications shall be kept on-site throughout the duration of the construction or land- disturbing activity. All records of inspection shall be in a form specified by MSD and shall include the date and time of inspection, and the name and signature of the inspector as defined in subsection (A)(1)(a) above. These records shall be made available to agency inspectors upon request.
         (d)   If the permittee chooses to use a CCR for site inspections and monitoring of all land disturbing activities, the permittee shall sign a statement giving the CCR full authority to inspect the site and to require necessary measures to maintain compliance. The name, address, and phone number of the CCR shall be noted on the cover sheet of the submitted detailed EPSC plan, but in no instance later than the time notice of construction is filed with MSD. If requested, the CCR shall submit signed and dated weekly inspection logs to the appropriate inspection agency. Copies of such logs shall be maintained on site and shall be signed and dated by the CCR.
      (2)   Post-construction maintenance. Following release or acceptance of a project (and termination of the site disturbance permit), the property owner shall be responsible for maintaining the project site in a manner to prevent soil erosion and sedimentation in violation of this chapter.
      (3)   Damage remediation.
         (a)   In the event of adverse impacts or off-site degradation resulting from improper or inadequate controls or practice in violation of this chapter, MSD shall have the authority to take the following action:
            1.   Determine the extent of damage resulting from noncompliance with the plan or failure to maintain the practices required by the plan;
            2.   Determine the impact and severity of the resulting adverse impacts or off-site degradation;
            3.   Require and approve an agreement with the permittee for correction and clean-up of the existing damage and an agreement for prevention of future damage.
         (b)   Cost incurred by MSD and other agencies, as a result of having to hire outside expertise, to determine the extent, impact and severity of damage and in remediating any such damage shall be collected from the Permittee.
         (c)   Failure of the permittee to implement the agreement according to its terms shall constitute a violation of this chapter, and subject the permittee to all applicable enforcement actions and penalties.
   (B)   Performance assurances.
      (1)   Generally. The permittee shall be responsible for the installation, good repair, maintenance, proper functioning and ultimate removal of all temporary and permanent EPSC measures.
      (2)   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 MSD. When a fiscal surety is required, the following conditions will apply.
         (a)   Timing of surety. The surety shall be posted no later than the issuance of a site disturbance permit or, with MSD approval, prior to issuance of a certificate of occupancy, as applicable.
         (b)   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.
         (c)   Amount of surety. 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. MSD shall have the discretion to set alternate amounts for or to waive a surety foractivities subject to Type II review that are commensurate with the complexity or size of the project. The final amount of the surety shall be determined by MSD and shall be in addition to any other surety required as part of subdivision or development approval.
         (d)   Use of surety.
            1.   If at any time following the period allowed to the permittee to complete his or her obligations under this chapter, MSD finds that: (i) the required temporary or permanent improvements or control measures have not been installed or maintained properly; (ii) the required temporary or permanent improvements are not in good repair or functioning properly; or (iii) required revegetation and restoration of a site have not been completed as required, then in addition to other enforcement remedies, 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.
            2.   Upon declaration of default, 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 indemnity against the parties responsible for the default. The determination of MSD shall not be used as evidence in support of or against responsibility in such cause of action, and MSD shall not be made a party to such action.
         (e)   Release of surety. Application for release of a fiscal surety required by this chapter may be made by filing a certificate with MSD bearing a notice that false statements made therein are punishable. MSD may make an inspection of the property and shall grant a release of the surety upon determining that:
            1.   Site construction is finished;
            2.   Final stabilization has been completed;
            3.   The site disturbance permit has been terminated;
            4.   The required improvements and controls are properly installed, are in good repair, and are functioning properly;
            5.   Temporary controls have been removed; and
            6.   There is no reason to believe that construction on the lot has or will cause the malfunctioning of installed improvements on other property.
      (3)   Imposition of lien. In addition to or as an alternative to use of any fiscal surety, MSD shall have the option of placing alien 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.
(1994 Jeff. Code, § 159.04) (Jeff. Ord. 28-2000, adopted and effective 11-21-2000; Jeff. Am. Ord. 26-2001, adopted and effective 9-25-2001; Lou. Metro Am. Ord. No. 186-2007, approved 10-1-2007)