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HomeMy WebLinkAboutAssociated Trust Co/Escrow Agreement-multi-use trail 2013 ESCROW AGREEMENT THIS ESCROW AGREEMENT (the "Agreement"), dated as of May , 2013, is by and between the CITY OF OSHKOSH, WISCONSIN, a Wisconsin municipal corporation (the "City"), and Associated Trust Company, National Association, Green Bay, WI (the "Escrow Agent"), as escrow trustee. WITNESSETH: WHEREAS, pursuant to Section 66.1105 of the Wisconsin Statutes (the "Act"), the City has heretofore established its Tax Incremental District No. 9 ("TID No. 7") pursuant to resolution of the City's Common Council originally adopted on June 6, 1991; and WHEREAS, the City has adopted a Project Plan (the "Project Plan") for TID No. 9, which provides that the costs of land acquisition, roadway and related infrastructure development, traffic signage, street lighting, landscaping and other site preparation costs within TID No. 9 are allowed expenditures; and WHEREAS, the expenditure period for Project Costs for TID No. 9 will end on June 6, 2013; and WHEREAS, by Resolution 13-246, adopted May 14, 2013, the City has obligated itself incur allowable Project Costs for the design and construction of a multi-use trail on the west side of Washburn Street between State Highways 44 and 26 as set forth on Exhibit A (the "Project Costs"), but said Project Costs will not be due and payable until after June 6, 2013; and WHEREAS, the City deems it to be necessary, desirable and in its best interest to authorize this Escrow Agreement for escrowing of funds in order to comply with the Act's expenditure requirements and to pay, as they become due,the Project Costs; and WHEREAS, by Resolution 13-246, adopted May 14, 2013, the City authorized the preparation and execution of this Escrow Agreement and intends to apply money in the Escrow Fund to the Project Costs pursuant to the Resolution; and WHEREAS, the City has determined that the amount deposited in the Escrow Fund will be sufficient to pay the Project Costs. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows: Section 1. Definitions. As used herein,the following terms mean: "Act"means Section 66.1105 of the Wisconsin Statutes, as d L= "Agreement"means this Escrow Agreement. MAY 31 2413 `""v "Authorized City Representative"means the Director of Finance/Treasurer for the City of Oshkosh. "Escrow Fund"means the account established and held by the Escrow Agent pursuant to this Agreement, in which cash and investments will be held for payment of the Project Costs. "Escrow Obligations" means cash and Treasury money market investments in the Escrow Fund. "Project" means any of the individual items included within the schedule of Project Costs attached hereto as Exhibit A. "Project Costs" means the Project Costs set forth on Exhibit A attached hereto. "Resolution" means the Resolution of the City 13-246, which authorized this Escrow Agreement. "Requisition to Pay Project Costs" means a Requisition in the form attached hereto as Exhibit B. Section 2. Deposit of Funds. (a) Pursuant to the provisions of the Resolution and this Agreement, the City shall cause to be deposited with the Escrow Agent, into the Escrow Fund, cash in the amount of three million three hundred sixty-three thousand six hundred dollars ($3,363,600.00) (the "Escrow Deposit"), which, when applied pursuant to Section 4 below, will at least provide for payment of the Project Costs upon requisition from the City. (b) The City represents and warrants that the Escrow Obligations, if held, invested. and disposed of by the Escrow Agent in accordance with the provisions of this Agreement, will be sufficient to pay the Project Costs set forth on Exhibit A. At no time will the Escrow Agent. be requested to pay Project Costs in excess of the total amount set forth on Exhibit A. Upon final disbursement for the payment of Project Costs identified on Exhibit A and. termination of this Agreement pursuant to Section 11(a) herein, or upon notice from the City that the remaining Projects have been abandoned pursuant to Section 11(b) herein, the Escrow Agent shall transfer any balance (whether cash or securities) remaining in the Escrow Fund to the City and thereupon this Agreement shall terminate. Section 3. Acceptance of Escrow. The Escrow Agent acknowledges receipt of the Escrow Deposit hereunder and accepts the responsibilities imposed on it, as Escrow Agent, by this Agreement. Section 4. Use and Investments of Funds. The Escrow Agent agrees: (a) to hold the Escrow Obligations, together with all investments and interest thereon and profits therefrom, at all times in an irrevocable escrow during the term of this Agreement as a separate trust account wholly segregated from all other funds held by the Escrow Agent in any 2 capacity, and to make disbursements from the Escrow Fund only in accordance with the provisions of this Agreement; (b) to deposit in the Escrow Fund, as received, the receipts of maturing principal of and interest on the Escrow Obligations in the Escrow Fund; (c) to pay Project Costs, as set forth in Section 5 hereof; (d) in the event the Escrow Agent is unable or fails to account for any property held hereunder, such property shall be and remain the property of the City and if, for any reason, such property cannot be identified, all other assets or Escrow Agent shall be impressed with a trust for the amount thereof and City shall be entitled to the preferred claim upon such assets enjoyed by any trust beneficiary; property held by Escrow Agent hereunder shall not be deemed to be a banking deposit of the City, and Escrow Agent shall have no right or title with respect thereto (including any right of set-off) and the City shall have no right of withdrawal thereof except as disbursed pursuant to this Agreement. Section 5. Payment of Project Costs. Upon receipt from the authorized city representative of a Requisition to Pay Project Costs in the form set forth hereto as Exhibit B, the Escrow Agent shall pay, in immediately available funds, to the designated payee, the amount requisitioned from the cash on hand in the Escrow Fund. Such payment shall be made as set forth in the Requisition. The City and Escrow Agent agree that the Project Costs set forth on Exhibit A are estimates. Requisitions may be submitted for any individual line item that exceeds the estimate listed in Exhibit A for that item, as long as the aggregate amount of Requisitions does not exceed the amount of the Escrow Obligations. Section 6. Liability of Escrow Agent. The Escrow Agent shall be obligated to perform the duties described in this Escrow Agreement and shall have no liability to any person or entity not a party to this Agreement. The Escrow Agent may rely upon any instrument or signature believed by it to be genuine and to have been signed or presented to it by the proper party or parties duly authorized to do so hereunder. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized, and shall not be liable for any mistake or error of judgment or for any acts or omissions of any kind unless caused by the willful misconduct or gross negligence of the Escrow Agent. The City shall indemnify the Escrow Agent and hold it harmless from and against any and all liabilities, losses or expenses incurred by the Escrow Agent hereunder or arising out of or in connection with this Agreement (including the reasonable compensation of and disbursements to its counsel and other advisors and assistants who are not employees of the Escrow Agent), except in the case of the Escrow Agent's own willful misconduct or gross negligence. Section 7. Escrow Agent Fees. For its services, the City will pay the Escrow Agent a fee of five hundred fifty and no/l00 dollars ($550.00). Section 8. Resignation of Escrow Agent. The Escrow Agent may resign and thereby become discharged from the duties and obligations hereby created, by giving not less than forty- five (45) days' written notice to the City. Such resignation shall take effect upon the date specified in such written notice to the City unless a successor shall have been appointed prior to 3 said date, in which event such resignation shall take effect immediately on the appointment of such successor and assumption by such successor in writing all of the duties and obligations of its predecessor. If no successor Escrow Agent has been appointed by the date upon which the resignation of the Escrow Agent shall take effect, the Escrow Agent shall retain the duties and obligations until the appointment of a successor. Section 9. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time by an instrument in writing, executed by the City not less than sixty(60) days before such removal is to take effect. (b) The Escrow Agent may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Agent, by any court of competent jurisdiction upon the application of the City. Section 10. Successor Escrow Agent. (a) If at any time hereafter the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Agent shall thereupon become vacant. If the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any other reason,the City shall appoint an Escrow Agent to fill such vacancy. (b) During the period of any vacancy, the City shall act as Escrow Agent. Section 11. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the first of the following shall occur: (a) all Project Costs have been paid and discharged in accordance with the proceedings authorizing the Escrow Fund, and all amounts held by the Escrow Agent hereunder have been applied in accordance herewith; or (b) upon notice from the City to the Escrow Agent that the remaining Project(s) have been abandoned. Section 12. Reports. The Escrow Agent shall, at the request of the City and at the termination of the Escrow Account, mail a report to the City of the receipts, income, investments, and payments of and from the Escrow Fund as of the last day of the previous month. Section 13. 1099 Reporting. The City will, on Escrow Agent's behalf, prepare 1099 forms for payments issued by the Escrow Agent from the Escrow Fund. Section 14. Severability. If any one or more of the covenants or agreement provided in this Agreement on the part of the City or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall be null and void and shall be severed from the remaining 4 covenants and agreements and shall in no way affect the validity of the remaining provisions of this Agreement. Section 15. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same instrument. Section 16. Governing Law. This Agreement shall be governed by the laws of the State of Wisconsin without regard to conflict of law provisions. Section 17. Amendments. (a) This Agreement may be amended by the City and the Escrow Agent to add to the terms of this Agreement to correct errors, clarify ambiguities or insert inadvertently omitted material. This Agreement may be amended or supplemented, the Escrow Obligations or any portion thereof sold or redeemed and moneys derived therefrom invested, reinvested or disbursed (any such amendment, supplement, redemption, direction to sell or redeem or invest, reinvest or disbursed to be referred to herein as a "Subsequent Action"), upon submission to the Escrow Agent of written authorization of the City for the Subsequent Action; (b) Except as provided in Section 11 herein and in subsection (a) above, all of the rights, powers, duties and obligations of the City and the Escrow Agent shall be irrevocable and shall not be subject to amendment by either the City or the Escrow Agent, respectively, and shall be binding on any successor to the City or the Escrow Agent during the term of this Agreement. Section 18. Notices. Any notice, request, communication or other papers shall be sufficiently given when delivered by regular mail, postage prepaid, or sent by facsimile as follows: To the City: City of Oshkosh Ms. Peggy Steeno, Director of Finance City of Oshkosh P.O. Box 1130 Oshkosh, WI 54903-1130 Phone: 920/236-5005 Fax: 920/236-5039 To the Escrow Agent: Associated Trust Company,NA Robert Terrian P.O. Box 408 Neenah, WI 54957-0408 Phone: 920- Fax: 920- The City and the Escrow Agent may designate further or different addresses or telecopy numbers to which subsequent notices, communications or other papers shall be sent. 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their official seals to be hereunto affixed and attested as of the date first above written. CITY OF OSHKOSH,WISCONSIN [SEAL] By: Mar A. Rohloff, City Manager By: k/(141)—A/7- ' By: Pamela R. Ubrig, City Cle Ap. oved as to Form: t►, ' By: Pegg Stdeno, Finance Director . Lorenson, City Attorney ASSOCIATED TRUST COMPANY � rr . By: y4 �.' . Robert Terrian 6 EXHIBIT A to Escrow Agreement PROJECT COSTS Design and Construction of a Multi-use Trail on the west side of Washburn Street between State Highways 44 and 26 Acquisition $ 250,000.00 Engineering/Design $ 250,000.00 Permitting $ 10,000.00 Construction Costs $ 2,290,000.00 Contractor Estimated Costs Estimated total cost $ 2,800,000.00 Contingency 20% $ 560,000.00 Cost of Escrow $ 3,600.00 Estimated Total $ 3,363,600.00 EXHIBIT B to Escrow Agreement REQUISITION NO. TO PAY PROJECT COSTS RE: Requisition to Pay Project Costs—City of Oshkosh,Wisconsin TID No. 9 Escrow Gentlemen: This constitutes a request for disbursement of funds to pay Project Costs pursuant to Section 5 of the Escrow Agreement dated as of May , 2013 by and between the City of Oshkosh, Wisconsin (the "City") and Associated Trust Company (the "Escrow Agent"). Reference is made to the Escrow Agreement for definitions of terms used herein. The City requests the amounts set forth on the attached Schedule of Disbursements be paid from the Escrow Fund: • to the persons identified on the Scheduled Disbursements, or • to reimburse the City for Project Costs paid by it and itemized on the Schedule of Disbursements. If the City has not indicated on the Schedule of Documents that disbursement should be made by wire transfer or other means and given appropriate instructions, we understand that you will make disbursement by check and mail it to the City of Oshkosh, and the City will arrange for delivery to the party indicated. As provided in the Escrow Agreement, you are hereby authorized to make the disbursements set forth herein. Dated this day of , 201_ CITY OF OSHKOSH,WISCONSIN By: - Title: - 2