§ 82-110. Performance security for installation and maintenance.

(a)

Required. The town shall require the submittal of a performance security or bond with surety, cash escrow, letter of credit or other acceptable legal arrangement prior to issuance of a permit in order to ensure that the structural BMPs are:

(1)

Installed by the permit holder as required by the approved stormwater management plan; and/or

(2)

Maintained by the owner as required by the operation and maintenance agreement.

(b)

Amount.

(1)

Installation. The amount of an installation performance security shall be the total estimated construction cost of the BMPs approved under the permit, plus 25 percent. The installation performance security shall remain in place until at least 60 days after final approval. In cases where the facility initially functions as an erosion control measure, the installation performance security shall remain in place until at least 60 days after the facility starts of function as a stormwater management facility.

(2)

Maintenance. The amount of a maintenance performance security shall be the present value of an annuity of perpetual duration based on a reasonable estimate of the annual cost of inspection as determined by the stormwater administrator for operation and maintenance of the BMPs approved under the permit, at a discount rate that reflects the jurisdiction's cost of borrowing minus a reasonable estimate of long-term inflation.

(c)

Uses of performance security.

(1)

Forfeiture provisions. The performance security shall contain forfeiture provisions, after proper notice, for failure to complete work within the time specified, or to initiate or maintain any actions which may be required of the applicant or owner in accordance with this article, approvals issued pursuant to this article, or an operation and maintenance agreement established pursuant to this article.

(2)

Default. Upon default of the owner to construct, maintain, repair and, if necessary, reconstruct any structural BMP in accordance with the applicable permit or operation and maintenance agreement, the stormwater administrator shall obtain and use all or any portion of the security to make necessary improvements based on an engineering estimate. Such expenditure of funds shall only be made after requesting the owner to comply with the permit or maintenance agreement. In the event of a default triggering the use of installation performance security, the town shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance.

(3)

Costs in excess of performance security. If the town takes action upon such failure by the applicant or owner, the town may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due.

(4)

Refund. No sooner than 60 days after final approval, the applicant may petition the town to release the value of the performance security. For single-family residential subdivisions, the 60-day timeframe shall be as outlined in section 82-108. The petition must include certification from a qualified registered state professional engineer or landscape architect certifying that the stormwater management controls are performing as designed and intended. If the stormwater administrator approves the report and accepts the petition, the town may release the installation performance security upon execution by the applicant of an indemnification agreement in favor of the town which shall be a covenant upon the property and run with the land. If the stormwater administrator rejects the petition, the applicant shall be provided with instruction to correct any deficiencies and all steps necessary for the release of the installation performance security.

(Code 1999, § 67-95; Ord. of 1-22-2008, § 1; Ord. of 9-20-2010, § 1)