42-240.3 Operation and Maintenance Agreement

  1. In General. Prior to the conveyance or transfer of any lot or building site to be served by a structural stormwater BMP pursuant to Subpart B, and prior to issuance of any permit for development or redevelopment requiring a structural stormwater BMP pursuant to Subpart B, 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 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 the County a right of entry in the event that the Water Quality 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 County to assume responsibility for the structural BMP.

The operation and maintenance agreement must be approved by the Water Quality 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.  A copy of the recorded maintenance agreement shall be given to the Water Quality Administrator within 14 days following its recordation. 

  1. Special Requirement for Homeowners’ and Other Associations. For all structural stormwater BMPs required pursuant to Subpart B 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. Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities.
    2. Granting to the County a right of entry to inspect, monitor, maintain, repair, and reconstruct structural stormwater BMPs.
    3. Allowing the County to recover from the association and its members any and all costs the County expends to maintain or repair the structural stormwater BMPs or to correct any operational deficiencies. Failure to pay the County all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the County 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. A statement that this agreement shall not obligate the County to maintain or repair any structural stormwater BMPs, and the County shall not be liable to any person for the condition or operation of structural stormwater BMPs.
    5. A statement that this agreement shall not in any way diminish, limit, or restrict the right of the County to enforce any of its ordinances as authorized by law.
    6. A provision indemnifying and holding harmless the County for any costs and injuries arising from or related to the structural stormwater BMP, unless the County 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.