9-9-22 Fillable HOA Stormwater Maintenance Escrow Agreement Prattville AO Revised
MAINTENANCE ESCROW AGREEMENT For Stormwater Best Management Practices Structures Permit # _________
THIS AGREEMENT made pursuant to the City of Prattville Post Construction Stormwater
Management Ordinance, and entered into this ___ day of _____________, 20___ by and among The CITY
OF PRATTVILLE, a Alabama municipal corporation, party of the first part (hereinafter referred to as
“CITY”) and ______________________________ (hereinafter referred to as “Developer”) and
______________________________ (hereinafter referred to as the “Association” )or any
other legal entity responsible under this agreement, parties of the second part, hereby designate
______________________________, as Escrow Agent party of the third part (hereinafter called "Escrow
Agent"), with its principal place of business at ______________________________, and in connection
with the Stormwater Management System(s) of the ______________________________project at
______________________________.
WITNESSETH:
WHEREAS, the Post Construction Stormwater Management Ordinance of the CITY, requires
the establishment of an escrow account to ensure that adequate funds are available to provide for the
operation, long-term maintenance, inspection, repair, and replacement/reconstruction of Stormwater Best
Management Practices Structures, as defined in Post-Construction Stormwater Ordinance, Number 2022-
014 of the City Code (hereinafter “BMPs”) (such as, but not limited to, sediment removal, structural,
biological or vegetative replacement, major repair, or reconstruction).
WHEREAS, the Post Construction Stormwater Management Ordinance of the CITY, requires
both an initial Developer contribution (the “Initial payment) and either Association payment of annual
funds to fund the escrow account (if it has taken ownership) or annual payment by the developer if it still
retains ownership of the BMPs.
WHEREAS, the Post Construction Stormwater Management Ordinance of the CITY requires the
Developer to pay into the escrow account an initial payment equal to ten (10) percent of half the initial
construction cost of the BMPs prior to plat recordation or issuance of construction permits.
WHEREAS, the Post Construction Stormwater Management Ordinance of the CITY requires the
Association, if it has taken ownership or legal or managerial authority/control, or Developer, if it still
retains ownership and legal and managerial authority/control of the structure, if construction has not been
finally completed in accordance with the Post Construction Stormwater Management Permit (the
“Permit”), if the Administrator has not approved the completed construction, if the Developer has not
complied with all annual inspections required by the City, if the Maintenance Escrow Agreement has not
been executed by the Association, or if all current and future phases of the subdivision which constitutes
the Property or of which the Property will be a part have not been constructed or transferred to the
Association, to pay into the escrow account an amount satisfactory to support the operation, maintenance
and annual inspection of the BMPs), as defined in Post-Construction Stormwater Ordinance, Number
2022-014 of the City Code and as indicated by the approved estimate, according to the following schedule:
ten (10) percent of half the initial construction cost shall be deposited to establish the escrow account, after
that ten (10) percent shall be deposited into the escrow account annually, and the full amount shall be
deposited within ten years following initial construction.
WHEREAS, the Developer is developing a property to be maintained by a homeowners
association, property owners association, or similar entity, known as the
___________________________________, and desires to provide the CITY a financial guarantee to
assure that adequate funds are available to provide for the operation, long-term maintenance, inspection,
repair and replacement/reconstruction of BMPs at ___________________________________ and has
established an Escrow Account for such purpose.
WHEREAS, the parties have agreed that the Escrow Agent is acceptable to all parties to act in
such capacity;
NOW, THEREFORE, in consideration of the foregoing premises, it is hereby agreed:
1. The Developer acknowledges the total sum required to be paid, pursuant to this Escrow
Agreement, is _________________________________, to guarantee that the Developer acknowledges
the total sum required to be paid, to guarantee that adequate funds are available to provide for the operation,
long-term maintenance, inspection, repair, and replacement/reconstruction (sediment removal, structural,
biological or vegetative replacement, major repair, or reconstruction) of BMPs, as required by the Post
Construction Stormwater Management Ordinance of the CITY of Prattville and in accordance with
approved construction plans and specifications, the Operation and Maintenance Agreement among the
Developer, the Association, and the City, the Alabama Handbook for Erosion Control Sediment Control
and Stormwater Management, and the Permit (as those terms are defined in the Operation and Maintenance
Agreement).
2. The Developer has deposited in escrow the sum of $___________________ with the Escrow
Agent, to guarantee that adequate funds are available to provide for the operation, long-term maintenance,
inspection, repair, and replacement/reconstruction (sediment removal, structural, biological or vegetative
replacement, major repair, or reconstruction) of BMPs, as required by the Post Construction Stormwater
Management Ordinance of the CITY of Prattville and in accordance with approved construction plans and
specifications, the Operation and Maintenance Agreement among the Developer, the Association, and the
City, the Alabama Handbook for Erosion Control Sediment Control and Stormwater Management, and the
Permit (as those terms are defined in the Operation and Maintenance Agreement).
3. The Escrow Agent agrees to hold said funds and to pay out said funds only upon receipt of
"Proper Authorization", as hereinafter defined. "Proper Authorization" shall mean authority in written
form from the City of Prattville, stating to which party funds shall be disbursed and in what amount. The
document will be executed by a city official, stating his/her office and that he/she is duly authorized to
issue the “Proper Authorization”, and the official’s signature shall be notarized. Escrow Agent is limited
to an obligation to pay the funds as directed in the “Proper Authorization” and is not to render any
judgment or exercise any discretion concerning the reason for the disbursement, the amount, or to whom
it is to be made.
The CITY and the Developer and/or the Association acknowledge that disbursements are to be
either:
(a) To the Association, or to any party designated in writing by the Association, upon delivery of
"Proper Authorization" from the City of Prattville authorizing such payment. The City of Prattville,
through the Stormwater Department, shall issue such "Proper Authorization" if the City approves the
expenditure.
(b) To the City of Prattville upon delivery of a "Proper Authorization" from the Stormwater
Department of the CITY, upon its determination that the BMPs are not performing adequately or as
intended, or are not properly maintained in accordance with the Post Construction Stormwater
Management Ordinance, the Operation and Maintenance Agreement among the Developer, the
Association, and the City, the Alabama Handbook for Erosion Control Sediment Control and Stormwater
Management, or the Permit (as those terms are defined in the Operation and Maintenance Agreement), and
the City of Prattville has determined that, pursuant to the Ordinance, it must take over and perform any
such uncompleted operation, maintenance, inspections, repairs, and
replacement/reconstruction, and use the escrow funds on deposit with the Escrow Agent for
such purposes.
4. The Developer or the Association, whichever is responsible, agrees to comply with the
requirement of the Ordinance that any funds drawn down from the escrow account shall be replaced in
accordance with the schedule of anticipated work used to originally fund the escrow account by the
Association.
5. The Escrow Agent, hereby, acknowledges that it will hold the funds referred to in Items 1
and 2 above and represents that it has no obligation, as it relates to the terms of this agreement, to any of
the parties hereto, except to release said funds within 10 (ten) calendar days upon delivery of "Proper
Authorization" from the City of Prattville, in the amount and to the party so indicated in the “Proper
Authorization”, and the Developer or Association does, hereby, release and hold the Escrow Agent
harmless from any and all claims whatsoever by it against the Escrow Agent for releasing such funds
to the City of Prattville, in accordance with the terms of this Agreement. Escrow Agent agrees to use
commercially reasonable best efforts to comply with the terms of this Agreement. The City of Prattville,
Developer, and Association all agree to release Escrow Agent of any liability and the Developer and the
Association agree to hold Escrow Agent harmless from any and all claims for any actions taken pursuant
to the funds in this Escrow Account; provided that the City, the Developer, and the Association agree to
the foregoing if and only if, and only to the extent that, the disbursement of funds has been made in
accordance with a Proper Authorization by the City of Prattville. The Escrow Agent retains the ability to
terminate this agreement providing a 15 (fifteen) business-day advance notice to the CITY and to the
Developer or Association. In the event of such termination by the Escrow Agent, the funds in the Escrow
Account will be disbursed according to the City’s instruction, contained in a “Proper Authorization”, if
such is provided, or otherwise, as instructed by the City. If the Escrow Agent solicits instruction from the
City and none is provided, within 15 (fifteen) business days of the Escrow Agent’s written request, then,
the Escrow Agent, will disburse the funds in the Escrow Account by check delivered to the CITY, payable
jointly to the CITY and the Association.
6. In the event that this escrow agreement should fail for any reason to cover the costs of
operation, maintenance, inspection, repair, and replacement/reconstruction, including any deficiency as to
form or execution, then, the Developer, the Association, and their successors, transferees, or assigns,
acknowledge that whichever party is deemed responsible by the CITY is subject to being charged for the
costs of such maintenance and repair, and such costs shall be enforced in the nature of a debt as provided
by the applicable Ordinances and State laws, provided that, once construction has been finally completed
in accordance with the Permit, the Stormwater Director has approved the completed construction, the
Developer has complied with all annual inspections required by the City, the Maintenance Escrow
Agreement has been executed by the Association, or all current and future phases of the subdivision which
constitutes the Property or of which the Property will be a part have been constructed or transferred to the
Association, the Developer shall no longer be responsible for any obligations arising from events or
circumstances occurring after the date the BMP is transferred and the Permit is reissued.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals, this __________day of
______________, 20_____.
{SIGNATURES APPEAR ON THE FOLLOWING PAGES.}
Corporation
IN WITNESS WHEREOF, ___________________________________ has hereunto set its hand and corporate seal, this ___________ day of _________________, _____________.
CORPORATION NAME:________________________________
BY: ________________________________
ITS: ________________________________
STATE OF ___________________
COUNTY OF ___________________
I, the undersigned, a Notary Public for the State of Alabama at Large do hereby certify that ____________________________, Whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me of this day that, be informed of the contents of said conveyance, ___________________ in such capacity as ___________________________ executed the same voluntarily on the day the same bears date.
Given under my hand and official seal this _______________day of ______________, ________.
____________________________________
(SEAL) NOTARY PUBLIC
My Commission Expires: _______________
City of Prattville BY: _____________________ Dale Gandy Director of Public Works
Limited Liability Corporation
IN WITNESS WHEREOF, the party hereto has set their respective hand on the first date written above.
LLC NAME:__________________________ MEMBER:__________________________
BY: _______________________________
ITS: ______________________________ STATE OF __________________
COUNTY OF ___________________
I, the undersigned, a Notary Public for the State of Alabama at Large do hereby certify that ____________________________, whose name is signed to the foregoing instrument and who is known to me, acknowledged before me of this day that, be informed of the contents of said instrument, ___________________ in such capacity as ___________________________ executed the same voluntarily on the day the same bears date.
Given under my hand and official seal this _______________day of ______________, ________.
____________________________________
(SEAL) NOTARY PUBLIC My Commission Expires: ______________
MANAGER:______________________
BY: _____________________________ ITS: ___________________________ STATE OF ___________________
COUNTY OF ___________________
I, the undersigned, a Notary Public for the State of Alabama at Large do hereby certify that ____________________________, whose name is signed to the foregoing instrument and who is known to me, acknowledged before me of this day that, be informed of the contents of said instrument, ___________________ in such capacity as ___________________________ executed the same voluntarily on the day the same bears date.
Given under my hand and official seal this _______________day of ______________, ________.
____________________________________ (SEAL) NOTARY PUBLIC My Commission Expires: ______________
City of Prattville
BY: _____________________ Dale Gandy Director of Public Works
Association
IN WITNESS WHEREOF, ___________________________________ has hereunto set its hand and corporate seal, this ___________ day of _________________, _____________.
ASSOCIATION NAME:________________________________
BY: ________________________________
ITS: ________________________________
STATE OF ___________________
COUNTY OF ___________________
I, the undersigned, a Notary Public for the State of Alabama at Large do hereby certify that ____________________________, Whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me of this day that, be informed of the contents of said conveyance, ___________________ in such capacity as ___________________________ executed the same voluntarily on the day the same bears date.
Given under my hand and official seal this _______________day of ______________, ________.
____________________________________
NOTARY PUBLIC
My Commission Expires: _______________
(SEAL)
City of Prattville BY: _____________________ Dale Gandy
Director of Public Works
Individual
STATE OF ______________________
COUNTY OF ___________________
I, the undersigned, a Notary Public for the State of Alabama at Large do hereby certify that ____________________________, Whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me of this day that, be informed of the contents of said conveyance, ___________________ in such capacity as ___________________________ executed the same voluntarily on the day the same bears date.
Given under my hand and official seal this _______________day of ______________, ________.
____________________________________ NOTARY PUBLIC My Commission Expires: _______________
(SEAL)
City of Prattville BY: _____________________ Dale Gandy
Director of Public Works