Sec. 75-402. - Operation and maintenance agreement.
(a) In general. Prior to the conveyance or transfer of any portion of a development or redevelopment, to be served by a stormwater management system, pursuant to this division, and prior to the issuance of any permit for a development or redevelopment, requiring a stormwater management system, pursuant to this division, the owner must execute an operation and maintenance agreement that shall be binding on all subsequent owners of the whole or any portion of the development or redevelopment served by the stormwater management system. Until the transfer of all property, sites, or lots served by the stormwater management system, or the transfer of legal and managerial responsibility, therefor, the original owner shall have primary responsibility for carrying out the provisions of the operation and maintenance agreement. The operation and maintenance agreement shall require the owner to construct, maintain, repair, and, if necessary, reconstruct, the stormwater management system, and shall state the terms, conditions, and schedule of maintenance for the stormwater management system. In addition, it shall grant to the city a perpetual easement across those portions of the property necessary for completion of construction, inspection, monitoring, maintenance, repair, or reconstruction of the stormwater management system. The operation and maintenance agreement shall also provide that, in the event the owner defaults on any of its obligations, hereunder, and it becomes necessary for the city to complete construction on, maintain, repair, or reconstruct, the stormwater management system, the city may recover any and all costs it, thereby, incurs. The operation and maintenance agreement shall, furthermore, grant to the city a lien on the property subject to the stormwater management permit, including the property upon which the stormwater management system is constructed, to secure the payment of the costs of construction, reconstruction, maintenance, and repair. The operation and maintenance agreement shall, furthermore, contain a statement informing all future transferees of the property that the property is subject to restrictive covenants/agreements which require the construction, reconstruction, maintenance, and repair of the stormwater management system, which covenants and agreements shall run with the land. Finally, the operation and maintenance agreement shall contain a provision whereby the owner releases, and agrees to indemnify, defend, and hold harmless, the city, its officials, officers, agents, and employees, from any and all claims, actions, suits, liabilities, losses, costs, expenses, reasonable attorneys' fees, and costs of litigation, of any nature, whatsoever, including claims for special and consequential damages, arising out of, or in any way related to, the stormwater management system and/or the city's entry onto the property and use of the easement, thereupon. The operation and maintenance agreement must be approved by the stormwater director prior to plan approval, shall be referenced on the final plat, and shall be recorded with the county register of deeds upon final plat approval. The original filed-stamped maintenance agreement shall be given to the stormwater director within 14 days following its recordation.
(b) Special requirement for homeowners' and other associations. For all stormwater management systems required pursuant to this division 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 the following provisions:
(1) Acknowledge that the association shall continuously operate and maintain the entire stormwater management system;
(2) Require the owner of the stormwater control management system to establish, collect, and retain funds for maintenance, repair, replacement, and reconstruction costs for the owner's stormwater management system, which shall not exceed ten percent of the stormwater management system's original cost of construction and shall be retained by the owner of the system.
(3) Allow the owner of the stormwater control management system a term of five years, beginning when the stormwater control management system is accepted by the city per city regulations, for the funds to be collected and retained by the owner of the stormwater control management system. Funds collected must be held in a segregated account and used solely for the purposes of maintaining, repairing, replacing, and reconstructing the owners' stormwater control management system.
(4) Grant to the city an easement to construct, inspect, monitor, maintain, repair, and reconstruct the stormwater management system;
(5) Allow the city to recover from the association and its members, any and all costs the city expends to maintain or repair the stormwater management, system, pursuant to division 5, subsection 75-501, enforcement and violations, below;
(6) A statement that this agreement shall not obligate the city to maintain or repair any stormwater management system, and the city shall not be liable to any person for the condition or operation of the stormwater management system;
(7) A statement that this agreement shall not in any way diminish, limit, or restrict the right of the city to enforce any of its ordinances as authorized by law; and
(8) A provision releasing, indemnifying, and holding harmless the city, its officials, officers, agents, and employees for any claims, actions, suits, liabilities, losses, costs, expenses, reasonable attorneys' fees, and costs of litigation, including special and consequential damages, arising from or related to the stormwater management system and/or the city's entry onto the property and use of the easement thereupon, unless the city has agreed in writing to assume the maintenance responsibility for the stormwater management system and has accepted dedication of any and all rights necessary to carry out that maintenance.
(c) Stormwater management funds collected prior to August 16, 2023. Funds held in escrow prior to August 16, 2023 are accessible to the owner of the stormwater management system to cover necessary maintenance, repair, replacement, or reconstruction costs for the owner's stormwater management system. In the event maintenance, repair, replacement or reconstruction of a project is needed, such funds shall be exhausted before the city may assess costs of necessary work on individual homeowners within the community, or any applicable owner's association.
(d) Disclosure statement. For all stormwater management systems (residential and commercial) required pursuant to this division that require an operation and maintenance agreement, the owner shall also contemporaneously with the execution of the operation and maintenance agreement, sign and execute a disclosure statement provided by the city acknowledging the provisions of subsection 75-402(b)(2) and (3) and 75-402(c). Said disclosure statement will be filed with the operation and maintenance agreement with the county register of deeds.
(Ord. No. 4618, § 1, 5-19-08; Ord. No. 4683, § VI, 5-17-10; Ord. No. 4765, § I, 10-15-12; Ord. No. 24-0425, § 2, 9-16-24)
