§ 50.153  OPERATION AND MAINTENANCE AGREEMENT.
   (A)   In general.
      (1)   Prior to the conveyance or transfer of any lot or building site to be served by a structural BMP pursuant to this subchapter, and prior to issuance of any permit for development or redevelopment requiring a structural BMP pursuant to this subchapter, 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 BMP. Until the transference of all property, sites, or lots served by the structural BMP, 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 BMP, and shall state the terms, conditions, and schedule of maintenance for the structural BMP. In addition, it shall grant to the Town of Wrightsville Beach a right of entry in the event that the Stormwater Manager has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural BMP; however, in no case shall the right of entry, of itself, confer an obligation on the town to assume responsibility for the structural BMP.
      (3)   The operation and maintenance agreement must be approved by the Stormwater Manager 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 Manager within 14 days following its recordation.
   (B)   Special requirement for homeowners' and other associations.  For all structural BMPs required pursuant to this subchapter 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)   That the association shall continuously operate and maintain the stormwater control and management facilities.
      (2)   That the town shall have a right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs.
      (3)   That the town shall be allowed to recover from the association and its members any and all costs the town expends to maintain or repair the structural BMPs 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 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.
      (4)   That this agreement shall not obligate the town to maintain or repair any structural BMPs, and the town shall not be liable to any person for the condition or operation of structural BMPs.
      (5)   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.
      (6)   That the association, or similar entity, shall indemnify and hold harmless the Town of Wrightsville Beach for any costs and injuries arising from or related to the structural BMP, 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. 1538, passed 5-24-07)