§ 58-543.2. Maintenance of stormwater facilities.

(a)

General standards for maintenance. The owner, its successors and assigns, including any homeowners association, of a stormwater management facility installed pursuant to this division shall maintain and operate the practice so as to preserve and continue its function in controlling stormwater runoff at the degree or amount of function for which the facility was designed.

(b)

Operation and maintenance agreement.

(1)

Prior to the conveyance or transfer of any lot or building site to be served by a stormwater control facility pursuant to this division, and prior to issuance of any permit for development requiring a stormwater control facility pursuant to this division, 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 facility. Until the transference of all property, sites or lots served by facility, 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 stormwater control facility, and shall state the terms, conditions and schedule of maintenance for facility. In addition, it shall grant to the town a right of entry in the event that the town administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the facility; however, in no case shall the right of entry, of itself, confer an obligation on the town to assume responsibility for the facility.

(3)

A 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 facility. The operation and maintenance agreement and maintenance plan templates to be completed may be obtained from the Town of Weddington. The operation and maintenance agreement must be approved by the town administrator prior to construction plan approval. The agreement shall be referenced on the final plat and recorded with the county register of deeds upon final plat approval. A copy of the recorded maintenance agreement shall be given to the town administrator within 14 days following its recordation.

(4)

For all stormwater management facilities required pursuant to this division, the required operation and maintenance agreement provided by the owner, homeowner's association, or similar entity, shall include all of the following provisions:

a.

Acknowledgment that the owner or association shall continuously operate and maintain the stormwater management facilities.

b.

Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the stormwater management facilities. If stormwater management facilities are not performing adequately or as intended or are not properly maintained, the Town of Weddington, in its sole discretion, may remedy the situation, and in such instances the Town of Weddington shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the owner or association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the stormwater management facilities provided that the Town of Weddington shall first consent to the expenditure.

c.

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 15 percent of the initial construction cost of the stormwater management facilities. Two-thirds of the total amount of sinking fund budget shall be deposited into the escrow account within the first five years and the full amount shall be deposited within ten years following initial construction of the stormwater management facilities. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the owner or association 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.

d.

The percent of developer contribution and lengths of time to fund the escrow account may be varied by the Town of Weddington depending on the design and materials of the stormwater control and management facility.

e.

Granting to the Town of Weddington a right of entry to inspect, monitor, maintain, repair and reconstruct stormwater management facilities.

f.

Allowing the Town of Weddington to recover from the owner or association and its members any and all costs the Town of Weddington expends to maintain or repair the stormwater management facilities or to correct any operational deficiencies. Failure to pay the Town of Weddington all of its expended costs, after 45 days' written notice, shall constitute a breach of the agreement. In case of a deficiency, the Town of Weddington shall thereafter be entitled to bring an action against the owner or 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.

g.

A statement that this agreement shall not obligate the Town of Weddington to maintain or repair any stormwater management facilities, and the Town of Weddington shall not be liable to any person for the condition or operation of stormwater management facilities.

h.

A statement that this agreement shall not in any way diminish, limit, or restrict the right of the Town of Weddington to enforce any of its ordinances as authorized by law.

i.

A provision indemnifying and holding harmless the Town of Weddington for any costs and injuries arising from or related to the stormwater management facilities, unless the Town of Weddington 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.

(c)

Maintenance easement. Prior to approval of the final stormwater management plan, the applicant or owner of the site must execute a maintenance easement agreement that shall be binding on all subsequent owners of land, including any homeowners associations, served by the stormwater management facility. The agreement shall provide for access to the facility at reasonable times for periodic inspection by the Town of Weddington, or their contractor or agent, and for regular or special assessments of property owners to ensure that the facility is maintained in proper working condition to meet design standards and any other provisions established by this division. The easement agreement shall be recorded in the Union County Register of Deeds land records.

(d)

Inspections. The person responsible for maintenance of any stormwater management facility installed pursuant to this division shall submit to the zoning administrator an annual inspection report from a qualified, registered North Carolina professional engineer performing services only in their area of competence during the renewal window prescribed in the Town of Weddington Annual Enforcement Manual. Failure to provide the inspection report may result in enforcement and penalties described in section 58-3. The inspection report shall contain all of the following:

(1)

The name and address of the land owner;

(2)

The recorded book and page number of the lot of each stormwater management facility;

(3)

A statement that an inspection was made of all stormwater management facilities;

(4)

The date the inspection was made;

(5)

A statement that all inspected stormwater facilities are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by this division; and

(6)

The original signature and seal of the engineer. An original inspection report shall be provided to the zoning administrator beginning one year from the date of as-built certification and each year thereafter on or before the anniversary date of the as-built certification.

(e)

Records of installation and maintenance activities. The owner, its successors and assigns, including any homeowners association, of each stormwater management facility shall keep records of inspections, maintenance, and repairs for at least five years from the date of creation of the record and shall submit the same upon reasonable request to the zoning administrator.

(f)

Nuisance. The owner, its successors and assigns, including any homeowners association, of each stormwater management facility, shall maintain it so as not to create a nuisance condition.

(Ord. No. O-2014-14, 11-10-2014; Ord. No. O-2015-16, 11-9-2015; Ord. No. O-2016-01, 3-14-2016)