CCR1985354Resolution #354-85
RESOLUTION AUTHORIZING AN ESCROW AGREEMENT
PROVIDING FOR THE DISPOSITION OF CONTRACTED
FUNDS THAT WERE DESIGNATED FOR
TAX INCREMENTAL FINANCING
(Ladwig Drive Sewer Project)
WHEREAS, at a meeting duly held on September 11, 1979, the Common
Council of the City of Muske 0, Waukesha County, Wisconsin (the
"City"), adopted Resolution i 174-79 creating a tax incremental
district as of January 1, 1979 (the "District"), and adopted a
project plan (the "Project Plan") in accordance with 66.46(4),
Wis. Stats.; and
WHEREAS, pursuant to §66.46(6) Wis. Stats., positive tax
increments, as defined in §66.46(2)(i) Wis. Stats., have
allocated to the City for each year commencing after the date
that the Project Plan was adopted; and
WHEREAS, such allocations shall continue until the earlier of (i)
the date the City has received aggregate tax increments with
all expenditures previously made or monetary obligations
respect to the District(s) in an amount equal to the aggregate of
previously incurred for project costs of the District(s) or (ii)
fifteen years after the last expenditures identified in the
District was created; and
increments may not be allocated later than twenty years after the
WHEREAS, pursuant to §66.46(am), no expenditure made later than
December 31, 1985 will be considered in determining the
allocation of tax increments to the District(s); and
WHEREAS, pursuant to the Project Plan, the City proposed to
Drive Sewer Project, which is a sub- roject of the Bass Bay
pursue certain public works or improvements, including the Ladwig
Sanitary Sewer Project (the "Project P, ); and
WHEREAS, with due diligence, the City did plan, design, advertise
for bids and accept bids for the Project and has entered into
contracts (referred to collectively as the "Contracts") to
complete the Projects; and
WHEREAS, the above described Project will not be completed so as
were delayed because (i) Southeastern Wisconsin experienced a
to entitle the contractor to final payment because the Projects
record rainfall from September 1, 1985 to November 30, 1985,
followed by severe cold weather; and
WHEREAS, except for those delays the City fully intended that all
of the above described funds would be disbursed; and
Project Plan are made, subject to the limitation that tax
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Reso.#354-85
Page 2
WHEREAS, in order to expend funds for the purpose of paying the
costs of the Projects prior to January 1, 1986, the City proposes
to deposit such funds into an escrow account for disbursement
while the Projects are being completed; and
WHEREAS, according to the consulting engineers with respect to
the projects, the approximate cost of completion of the Projects
is $696,000.00; and
WHEREAS, First Wisconsin National Bank of Brookfield has agreed
to act as Escrow Agent under the terms of the attached agreement.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City
of Muskego, Waukesha County, Wisconsin, that:
SECTION 1. ESCROW AGREEMENT.
For the purposes of paying costs of the projects and for making
City are hereby authorized and directed to execute an Escrow
such expenditures prior to January 1, 1986, the officers of the
Agreement, in substantially the form attached hereto as Exhibit
A, with First Wisconsin National Bank of Brookfield as Escrow
Agent. The deposit of the sum of $696,000.00 of the City's funds
into the Escrow Account to be established with the Escrow Agent
is hereby authorized and directed to be accomplished on or before
December 31, 1985. The subsequent use and disbursement of the
funds in the Escrow Account by the Escrow Agent in the manner
provided in the Escrow Agreement is hereby authorized and
approved.
SECTION 2. APPROVAL OF EXPENDITURE mn DISTRIBUTION OF FUNDS.
By depositing the funds of the City into the Escrow Account
pursuant to the Escrow Agreement described in Section 1 hereof,
the City will have expended funds for the costs of the
projects. The release and distribution of the funds in the
manner proveded in the Escrow Agreement is hereby authorized and
approved and no further approval by the Common Council shall be
required. Neither the Common Council nor any of the City's
affect the distribution of the funds.
officers shall have any powers of any form or nature that would
DATED this 30th day of December, 1985.
CITY OF MUSKEG0
0 ATTEST : Wayne G. Salentine, Mayor
City Clerk
AN ESCROW AGREEMENT
TO ASSURE DISTRIBUTION OF EXPENDED FUNDS
(Ladwig Drive Sewer Project)
THIS AGREEMENT entered into this 30th day of December, 1985, by
and between First Wisconsin National Bank of Brookfield,
Wisconsin, hereinafter referred to as "ESCROW AGENT" and the City
Wisconsin, hereinafter referred to as "MUNICIPALITY";
of Muskego, W182 58200 Racine Avenue, Muskego, Waukesha County,
WITNESSETH
WHEREAS, pursuant to a tax increment financing plan under Section 66.46(4) Wis. Stats., the MUNICIPALITY is pursuing certain public
works or improvements including the Ladwig Drive Sewer Project, a
sub-project of the Bass Bay Sanitary Sewer Project (the
"Project") ; and
WHEREAS, MUNICIPALITY did create seven Tax Incremental Financing
Districts pursuant to the provisions of Section 66.46, Wis.
Stats., commonly known as the "tax increment law"; and
WHEREAS, MUNICIPALITY identified and projected a number of
'tax increment law"; and
WHEREAS, one of the designated projects to be completed was the
Ladwig Drive Sewer Project, a sub-project of the Bass Bay
Sanitary Sewer Project; and
WHEREAS, MUNICIPALITY did, to implement said project, plan,
design, advertise for bids, accept lowest bid, and enter a
contract with Super Excavators, to perform all tasks according to
the terms of said contract to complete this project; and
WHEREAS, said contract was let on the 10th day of September,
1985, and fully executed on the 11th day of September, 1985, and
according to the terms of said contract, the project was to be
completed and accepted by the MUNICIPALITY on the 22nd day of
November, 1985; and
WHEREAS, both parties to said contract intended that all work and
MUNICIPALITY had intended that all monies owed under said
materials called for in said contract would be completed and
contract would have been paid on or before December 31, 1985; and
WHEREAS, Southeastern Wisconsin suffered a record rainfall
between September 1, 1985 and November 30, 1985, followed by
severe cold weather; and
WHEREAS, MUNICIPALITY has found that because of said inclement
weather and related reasons that the project is not going to be
rojects that would be performed under the provisions of said
completed before December 31, 1985 and because said contract is
not going to be completed the MUNICIPALITY 1s not golng to be
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able to pay for completion of said contract before December 31,
1985, as required by 66.46, Wis. Stats.; and
WHEREAS, the MUNICIPALITY would not have entertained this project
had it known that the funds it still has to expend may not
qualify as tax incremental expenses; and
WHEREAS, MUNICIPALITY did on the 27th day of November, 1984, the
5th day of June, 1985 and the 19th day of November, 1985, borrow
monies to pay project costs authorized pursuant to section 66.46,
Wis Stats. specifically for this project amongst others; and
WHEREAS, if the total expenses are not eligible for tax
incremental financing, then the MUNICIPALITY will now be required
would not have entered into this project had it known that the
to levy taxes to repay said project costs and the MUNICIPALITY
project would be delayed beyond December 31, 1985; and
WHEREAS, Ruekert & Mielke (the "Engineer"), the engineer or
architect supervising construction of the Projects or if no
supervising engineer, the consulting engineer as to said project,
has estimated that the cost of completion of the Projects is
$696,000.00; and
WHEREAS, in order to expend funds for the purpose of paying costs
of the Projects prior to January 1, 1986, the MUNICIPALITY has
decided to deposit such funds into an escrow account for
disbursement while the Projects are being completed; and
WHEREAS, ESCROW AGENT has agreed to act as escrow agent under the
terms of this Agreement; and
WHEREAS, pursuant to Resolution No. 354-85 duly adopted by the
governing body of the MUNICIPALITY, at a meeting held on December
30, 1985, the MUNICIPALITY has appointed the ESCROW AGENT to hold
and administer the Escrow Account herein established with the
funds of the MUNICIPALITY;
NOW, THEREFORE, in consideration of the mutual promises and
convenants contained herein, and other good and valuable
acknowledged, the parties agree as follows:
consideration, the receipt and sufficiency of which is hereby
1. Escrow Deposit. Concurrently with the execution of this
Agreement, the MUNICIPALITY has deposited $696,000.00 of funds of
the MUNICIPALITY, to be held and used by ESCROW AGENT, together
with any investment income accruing thereto, in escrow only as
herein set forth for the express purpose of paying for all
materials, labor and other expenses as maybe listed in Section 66.46 Wis. Stats. towards satisfaction of the monetary obligation
MUNICIPALITY relinquishes any and all claim it may have to the
the MUNICIPALITY has under the terms of the Contracts. The
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funds constituting the escrow deposit or to the return of said
funds deposited into the Escrow Account prior to the termination
expended funds toward the payment of costs of the Projects herein
described.
The MUNICIPALITY agrees that if at anytime it shall appear to
ESCROW AGENT that such escrow deposit will not be sufficient to
MUNICIPALITY will, upon notice by the ESCROW AGENT, make such
make a payment required under the terms of the Contracts, the
payment out of its funds on hand to the extent necessary to meet
fully the payments required under the Contracts.
2. Acceptance of Escrow. ESCROW AGENT acknowledges receipt of
the escrow deposit hereunder and accepts the responsibilities
imposed on it, as ESCROW AGENT, by this Agreement.
3. Application of Escrow Deposit. ESCROW AGENT shall deposit
the escrow deposit hereunder into an Escrow Account to be
distributed and invested as follows:
of this Agreement, and thereby the MUNICIPALITY is deemed to have
(a) Investment of Escrow Deposit. The ESCROW AGENT shall hold
the deDosit in an interest bearing account for such Deriod of
time as there are monies left in ;he Escrow Account and under the
terms and conditions herein.
0 (b) Distribution of Escrow Account.
(i) The ESCROW AGENT shall look only to Engineer for an
and distribution of funds in the Escrow Account is to be made.
indication that payment on the Contracts is due and that release
(ii) The Engineer will indicate that payment is due in
accordance with payment terms and conditions of the Contracts.
Agreement and made a part hereof. The ESCROW AGENT shall have no
The Contracts are incorporated in their entirety into this Escrow
responsibility for the terms of the Contracts other than to
release and distribute the funds in accordance therewith as
indicated by the Engineer.
(iii) The Engineer will perform his obligations for inspection
and approval of the performance on the Projects as provided for
in the Contracts. Upon observation and in accordance with the
will determine whether the performance is in accordance with the
schedule of payments agreed to in the Contracts. the Engineer
Contract documents. The Engineer will submit to ESCROW AGENT a
Certificate for Payment (the "Certificate") for such amount as
Certificate, the ESCROW AGENT concludes that the Certificate is a
the Engineer determines is properly due. If, upon receipt of the
genuine and valid original or copy thereof, ESCROW AGENT shall
release and distribute appropriate funds to the parties who are
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entitled thereto under the terms and conditions of the Contracts m as indicated by the Engineer. - (iv) The governing body of the MUNICIPALITY has authorized and
approved by Resolution the manner in which releases and
distributions are to be made under the terms of this Agreement
MUNICIPALITY. Neither the governing body nor the officers of the
and no further approval or authorization is required by the
MUNICIPALITY shall have powers of any form or nature that would
affect the release and distribution of the funds under the terms
of this Agreement and the Contracts.
(v) When the Projects have been completed under the terms of the
Engineer will, unless there is any failure of performance, submit
Contracts and the proper time for retainage, if any, has expired,
payment is due and ESCROW AGENT shall release and distribute
a final Certificate for Payment to the ESCROW AGENT when such
funds accordingly.
the Projects or for any other reason resulting from the terms of
(vi) If, due to investment income, a decrease in the scope of
payment of the completion of the Projects, such funds will be
the Contracts, any funds remain in the Escrow Account after full
returned to the MUNICIPALITY. Any funds so returned will be
Stats. and will not qualify as TIF eligible costs. The
considered not to have been expended under Section 66.46 Wis.
MUNICIPALITY waives any previous or future claim to reimbursement
through TIF in the amount of the funds returned plus investment
income earned thereon. If the MUNICIPALITY has been allocated
positive tax increments with respect to any returned funds, the
MUNICIPALITY will be required to designate the funds returned
from the Escrow Account directly to the repa ment of such
allocation as provided in Section 66.46(6) (cy Wis. Stats.
4. The ESCROW AGENT.
(a) Annual Report. ESCROW AGENT shall, in the month of February
practicable after the termination of this Agreement, forward by
of each year while this Agreement is in effect and as soon as
first class registered mail to the MUNICIPALITY a report of the
Escrow Account during the preceding calendar year, including in
receipts, income, investments and payments of and from all of the
such report a statement, as of the end of the prededing calendar
year, regarding the manner in which it has carried out the
requirements of this Agreement. The MUNICIPALITY shall have the
ESCRSOW AGENT'S records regarding the status and details of the
right, at any time during business hours, to examine all of the
Escrow Account.
(b) Separate Funds; Accountability. ESCROW AGENT shall keep all
monies deDosited hereunder. and all investment income thereon and
profits therefrom, at all times in the special fund and separate
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trust account, wholly segregated from all other funds and on
deposit with it; shall never commingle such deposits with other
funds or of ESCROW AGENT; and shall never at any time use, loan
or borrow the same in anyway. Nothing herein contained shall be
construed as requiring ESCROW AGENT to keep the identical monies,
or any part thereof, received from or for the MUNICIPALITY'S
account, on hand, but monies of any equal amount shall always be
maintained on hand as funds held by ESCROW AGENT and a special
account thereof, evidencing such fact, shall at all times be
maintained on the books of ESCROW AGENT.
In the event ESCROW AGENT is unable or fails to account for any
property held hereunder, such property shall be and remain the
property designated to be used as herein described and if, for
any reason, such property cannot be identified, all other assets
of ESCROW AGENT shall be impressed with a trust for the amount
thereof and the parties to the Contracts to whom the property is
owing and due 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 MUNICIPALITY, and ESCROW AGENT shall have no right or title
with respect thereto (including any right of set-off) and the
MUNICIPALITY shall have no right of withdraw1 thereof.
(c) Liability and Indemnification. ESCROW AGENT shall be under
no obYigations to inquire into or be in any way responsible for
the performance or nonperformance by the MUNICIPALITY of any of
its obligations, or to protect any of the MUNICIPALITY'S rights
under any of the MUNICIPALITY'S contracts with or franchises or
privileges from any state, county, municipality or other
be liable for any act done or step taken or omitted by it, as governmental agency or with any person. ESCROW AGENT shall not
ESCROW AGENT, or for any mistake of fact or law, or for -.rJ,itling
which it may do or refrain from doin, 5ooa faith and in the
exercise of reasona'vie care and believed by it to be within the
discretion or power conferred upon it by this Agreement, except
for its negligence or its default in the performance of any
obligation imposed upon it hereunder. ESCROW AGENT is authorized
to act upon any document believed by it to be genuine and
purporting to be signed by the proper party or parties and will
incur no liability in so acting. ESCROW AGENT shall not be
responsible in any manner whatsoever for the recitals or
statements contained herein, including without limitation those
as to the sufficiency of the escrow deposit to accomplish the
purposes hereof or in any proceedings taken in connection
therewith, but they are made solely by the MUNICIPALITY.
The MUNICIPALITY does hereby and shall indemnify and save
harmless ESCROW AGENT from any and all loss or damage of
whatsoever kind and from any suits, claims, or demands, including
ESCROW AGENT'S resonable legal fees and expenses, on account of
any matter or thing arising out of this Agreement or in
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by ESCROW AGENT in connection with this Agreement. Such
connection herewith or on account of any act or omission to act
obligation shall survive completion of the Project.
(d) Resignations; Successor ESCROW AGENT. ESCROW AGENT may at
any time resign by giving not less than 60 days written notice to
the MUNICIPALITY. Upon giving such notice of resignation, the
resigning ESCROW AGENT may petition any court of competent
jurisdiction for the appointment of a successor escrow agent.
Such court may thereupon, after such notice, if any, as it may
deem proper and prescribes, appoint a successor escrow agent of
comparable qualifications to those of the resigning ESCROW
AGENT. The resignation of the ESCROW AGENT shall take effect
only upon the appointment of a successor escrow agent and such
successor escrow agent's acceptance of such appointment.
Any successor escrow agent shall be a state or national bank,
have full banking and trust powers, and have a combined capital
and surplus of at least $5,000,000.
Any successor escrow agent shall execute, acknowledge and deliver
to the MUNICIPALITY and to its predecessor escrow agent an
instrument accepting such appointment hereunder, and thereupon
the resignation of the predecessor escrow agent shall become
effective and such successor escrow agent, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as escrow agent herein; but
nevertheless, on written request of the MUNICIPALITY or on the
request of the successor escrow agent, the escrow agent ceasing
to act shall execute and deliver an instrument transferring to
such successor escrow agent, upon the terms herein expressed, all
the rights, power, and duties of the escrow agent so ceasing to
MUNICIPALITY shall execute any and all instruments in writing for
act. Upon the request of any such successor escrow agent, the
more fully and certainly vesting in and confirming to such
successor escrow agent all such rights, powers and duties. Any
predecessor escrow agent shall pay over to its successor escrow
agent a proportional part of the escrow agent's fee, if any.
5. Miscellaneous.
into by the MUNICIPALITY and ESCROW AGENT for the benefit of the (a) Third-party Beneficiary. This Agreement has been entered
XUNICIPALITY and the parties to the Contracts and is not
revocable by the MUNICIPALITY or ESCROW AGENT. The Escrow
Account has been irrevocably pledged to the payment of the costs
of completion of the Projects in accordance with this
Agreement. Notwithstanding the foregoing, this Agreement shall
person other than the parties hereto.
not be construed as creating any rights in or obligations to any
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provision of this Agreement shall be invalid or ineffective for
any reason, the remainder of this Agreement shall remain in full
force and effect, it being expressly hereby agreed that the
remainder of this Agreement would not be entered into by the
parties hereto notwithstanding any such invalidity.
of (i) the date when all funds in the Escrow Account have been
(c) Termination. This Agreement shall terminate on the earlier
disbursed, or (ii) within three (3) business days after the
ESCROW AGENT receives a written statement from the Engineer
certifying that the Projects have been fully completed as set
forth in the Contracts and the final payments thereunder have
been distributed. The parties realize that any funds as shall
remain in the Escrow Account upon termination shall be returned
to the Municipality, after payment of any unpaid fees or expenses
of the ESCROW AGENT. The MUNICIPALITY shall accept such funds
only in accordance with Section 3(a)(vi) hereof. Termination of
MUNICIPALITY'S obligation to pay the sums set forth in the
this Agreement shall not, of itself, have any effect on the
contracts in accordance with the terms thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement,
duly authorized so to do, each in the manner most appropriate to
it, on the date first above written.
ESCROW AGENT:
ATTEST :
MUNICIPALITY:
BY: WAYNE G. SALENTINE, MAYOR
ATTEST :
BY: CHARLOTTE L. STEWART, CLERK
This Agreement drafted by Dale W. Arenz, Assistant City Attorney