Excerpt from NC Phase II Stormwater Management Ordinance
CHAPTER 159: STORMWATER MANAGEMENT ORDINANCE
159-402 Operation and Maintenance Agreement
Prior to the conveyance or transfer of any lot or building site to be served by a structural BMP pursuant to this Ordinance, and prior to issuance of any permit for development or redevelopment requiring a structural BMP pursuant to this Ordinance, 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.
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 City of Monroe a right of entry in the event that the Stormwater Administrator 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 City of Monroe to assume responsibility for the structural BMP.
The operation and maintenance agreement must be approved by the Stormwater Administrator 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 by the City of Monroe.
Excerpt from the City of Monroe Stormwater Administrative Manual
7.1 Purpose of the Operation and Maintenance Agreement
An Operation and Maintenance Agreement is required for all BMPs. The purpose of this agreement is to ensure that each BMP receives adequate maintenance so that it can satisfactorily perform its pollutant removal function. The agreement also designates the responsible party who shall be in charge of maintaining the BMP. It serves as a legal document to ensure maintenance and also outlines the routine maintenance schedule for each BMP.
7.2 Description of the Operation and Maintenance Agreement
Prior to final approval of any BMP design plans and the issuance of the Stormwater Management Permit, an Operation and Maintenance Agreement must be submitted and approved by the Stormwater Administrator for each BMP. The Operation and Maintenance Agreement form (Stormwater Maintenance Agreement) can be found in Appendix 8.6. The owner of the BMP has the discretion to modify this agreement provided the provisions listed below are included:
- Acknowledgment that the Covenanter(s) shall continuously operate and maintain the stormwater control and management facilities.
- Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the structural BMPs. If structural BMPs are not performing adequately or as intended or are not properly maintained, the City of Monroe, in its sole discretion, may remedy the situation, and in such instances the City of Monroe shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the Covenanter(s) for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural BMPs, provided that the City of Monroe shall first consent to the expenditure.
- 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 fifteen (15) percent of the initial construction cost of the structural BMPs. Two-thirds (2/3) of the total amount of sinking fund budget shall be deposited into the escrow account within the first five (5) years and the full amount shall be deposited within ten (10) years following initial construction of the structural BMPs. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the Covenanter(s) 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.
- The percent of developer contribution and lengths of time to fund the escrow account may be varied by the (name of local government) depending on the design and materials of the stormwater control and management facility.
- Granting to the City of Monroe a right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs.
- Allowing the City of Monroe to recover from the Covenanter(s) and its members any and all costs the City of Monroe expends to maintain or repair the structural BMPs or to correct any operational deficiencies. Failure to pay the City of Monroe all of its expended costs, after forty-five days written notice, shall constitute a breach of the agreement. The City of Monroe shall thereafter be entitled to bring an action against the Covenanter(s) and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both, in case of a deficiency. Interest, collection costs, and attorney fees shall be added to the recovery.
- A statement that this agreement shall not obligate the City of Monroe to maintain or repair any structural BMPs, and the City of Monroe shall not be liable to any person for the condition or operation of structural BMPs.
- A statement that this agreement shall not in any way diminish, limit, or restrict the right of the City of Monroe to enforce any of its Ordinances as authorized by law.
- A provision indemnifying and holding harmless the City of Monroe for any costs and injuries arising from or related to the structural BMP, unless the City of Monroe 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.
A BMP Maintenance Plan must be attached as an Addendum to the Operation and Maintenance Agreement which identifies the specific maintenance activities to be performed for each BMP. As part of the BMP Maintenance Plan submittal, a digital copy must include as part of the Addendum. The Maintenance Plan shall identify each BMP using the following naming convention: “Project or subdivision name – BMP Type – Number.” For example, Stoneridge Phase I – Bioretention 1”. This naming convention should also mirror the BMP naming convention used on the approved design plans. Following approval of the Operation and Maintenance Agreement and Maintenance Plan by the Stormwater Administrator, the document must be signed by the responsible party, notarized, and recorded at the Union County Register of Deeds Office with the corresponding approved Plat. A copy of the recorded document must be provided to the Stormwater Administrator for filing within fourteen (14) days of recordation. Receipt of this document shall be indicated in the Stormwater Management Ordinance Database and the document shall be placed in the project file.
7.3 Description of Maintenance Requirements
The Operation and Maintenance Agreement requires that each BMP be inspected by a qualified registered North Carolina professional engineer or landscape architect on an annual basis. An inspection report must be completed for each BMP indicating the status of each item inspected and any maintenance that was conducted. The inspection report must be completed on the form provided in City of Monroe Standard Specification and Detail Manual called the City of Monroe BMP Maintenance and Inspection Checklist. The first inspection report is due to the Stormwater Administrator within one (1) year from the date of as-built certification and each year thereafter. The inspector shall certify on the Maintenance and Inspection Checklist that the BMP has been inspected and that at the time of the inspection the BMP was performing properly and was in compliance with the terms and conditions of the approved Operation and Maintenance Agreement and Maintenance Plan required by the Stormwater Management Ordinance. Therefore, the inspector should allow enough time before the end of the one year time period to conduct the necessary inspections(s) and completed the necessary maintenance and repairs prior to submittal of the report.
Within two (2) weeks following the completion of inspection and maintenance activities, the owner of the BMP shall forward the signed and sealed Maintenance and Inspection Checklist to the Stormwater Administrator. Submitted inspection forms shall be entered into the BMP maintenance database to track inspections and maintenance activities and the hard copy shall beplaced in the file. The owner of the BMP shall keep records of inspections, maintenance, and repairs for at least five (5) years from the date of creation of the record and shall submit the same upon reasonable request to the Stormwater Administrator.
7.4 Transfer of Maintenance Responsibilities
City of Monroe shall not accept maintenance responsibility of structural BMPs that are installed pursuant to the Stormwater Management Ordinance. The owner will continue to own and maintain the pond until City of Monroe – Engineering Department is notified in writing of a transfer in ownership and maintenance responsibility. The notification will include a date for the transfer of responsibility and a letter of acceptance from the new owner. Notify the Department within 30 days of a proposed change in ownership.