Maintenance Agreements and Arrangements

A stormwater maintenance agreement is a formal contract between a local government and a property owner designed to guarantee that specific maintenance functions are performed in exchange for permission to develop that property. Local governments benefit from these agreements in that responsibility for regular maintenance of the Stormwater Treatment Practice (STP) can be placed upon the property owner or other legally recognized party, allowing agency staff more time for plan review and inspection.

Maintenance agreements can be an effective tool for ensuring long-term maintenance of on-site STPs. The most important aspect of creating these maintenance agreements is to clearly define the responsibilities of each party entering into the agreement. Basic language that should be incorporated into an agreement includes the following:

1. Performance of routine maintenance
Local governments often find it easier to have a property owner perform all maintenance according to the requirements of a Design Manual. Other communities require that property owners do aesthetic maintenance (i.e., mowing, vegetation removal) and implement pollution prevention plans, but elect to perform structural maintenance and sediment removal themselves.

2. Maintenance schedules
Maintenance requirements may vary, but usually governments require that all STP owners perform at least an annual inspection and document the maintenance and repairs performed. An annual report must then be submitted to the government, who may then choose to perform an inspection of the facility.

3. Inspection requirements
Local governments may obligate themselves to performing an annual inspection of an STP, or may choose to inspect when deemed necessary instead. Local governments may also wish to include language allowing maintenance requirements to be increased if deemed necessary to ensure proper functioning of the STP.

4. Access to STPs
The agreement should grant permission to a local government or its authorized agent to enter onto property to inspect STPs. If deficiencies are noted, the government should then provide a copy of the inspection report to the property owner, and provide a timeline for repair of these deficiencies.

5. Failure to maintain
In the maintenance agreement, the government should repeat the steps available for addressing a failure to maintain situation. Language allowing access to STPs cited as not properly maintained is essential, along with the right to charge any costs for repairs back to the property owner. The government may wish to include deadlines for repayment of maintenance costs, and provide for liens against property up to the cost of the maintenance plus interest.

6. Recording of the maintenance agreement
An important aspects to the recording of the maintenance agreement is that the agreement be recorded into the local deed records. This helps ensure that the maintenance agreement is bound to the property in perpetuity.

Finally, some communities elect to include easement requirements into their maintenance agreements. While easement agreements are often secured through a separate legal agreement, recording public access easements for maintenance in a maintenance agreement reinforces a local government's right to enter and inspect an STP.

Samples of maintenance agreements are provided below. Documents in .pdf format require Adobe Acrobat reader, which you can download for free here.