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CCR19853560 Resolution #356-85 RESOLUTION AUTHORIZING AN ESCROW AGREEMENT PROVIDING FOR THE DISPOSITION OF C~INTRACTED ~~ ~ FUNDS THAT WERE DESIGNATED FOR TAX INCREMENTAL FINANCING (Culvert Crossings Project, Kurtze Lane Road Project, Bass Bay Road Project, Arterial Signal Project and Sanitary Sewer Interceptor (Northwest Plant Abandonment Project) WHEREAS, at a meeting duly held on September 11, 1979, the Common Council of the City of Muskego, Waukesha County, Wisconsin (the 11176-79 and 1177-79 creating tax incremental districts as of "City"), ado ted Resolutions #172-79, 11173-79,1174-79, #175-79, January 1, 1979 (the "Districts"), 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) Project Plan are made, subject to the limitation that tax fifteen years after the last expenditures identified in the 0 increments may not be allocated later than twenty years after the Districts were created; and 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 pursue certain public works or improvements, including Storm Water Drainage (Culvert Crossings Project); Sanitary Sewer Around Bass Bay and Road Improvements (Kurtze Lane Road Project and Bass Bay Road Project); Arterial Signals Project; and Sanitary Sewer Interceptor (Northwest Plant Abandonment Project), (the "Projects") ; and WHEREAS, with due diligence, the City did plan, design, advertise for bids and accept bids for the Projects and has entered into contracts (referred to collectively as the "Contracts") to complete the Projects; and WHEREAS, the above described Projects 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 T 0 Reso. #356-85 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 while the Projects are being completed; and to deposit such funds into an escrow account for disbursement WHEREAS, according to the consulting engineers with respect to the projects, the approximate cost of completion of the Projects is $55,000.00; 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 such expenditures prior to January 1, 1986, the officers of the Agreement, in substantially the form attached hereto as Exhibit City are hereby authorized and directed to execute an Escrow A, with First Wisconsin National Bank of Brookfield as Escrow Agent. The deposit of the sum of $55,000.00 of the City's funds into the Escrow Account to be established with the Escrow Agent December 31, 1985. The subsequent use and disbursement of the is hereby authorized and directed to be accomplished on or before funds in the Escrow Account by the Escrow Agent in the manner approved. provided in the Escrow Agreement is hereby authorized and SECTION 2. APPROVAL OF EXPENDITURE AND DISTRIBUTION OF WNDS. 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 ATTEST : Wayne G. Salentine, Mayor City Clerk AN ESCROW AGREEMENT TO ASSURE DISTRIBUTION OF EXPENDED FUNDS (Culvert Crossings Project, Kurtze Lane Road Project, Sanitary Sewer Interceptor (Northwest Plant Abandonment Project) Bass Bay Road Project, Traffic Control Signal Project and 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 of Muskego, W182 S8200 Racine Avenue, Muskego, Waukesha County, Wisconsin, hereinafter referred to as "MUNICIPALITY"; 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 Storm Water Drainage (Culvert Crossings Project); Sanitary Sewer Around Bass Bay and Road Improvements (Kurtze Lane Road Project and Bass Bay Road Project); Traffic Control Signals Project; and Sanitary Sewer Interceptor (Northwest Plant Abandonment Project), (the "Projects") ; 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 a P, rojects that would be performed under the provisions of said tax increment law"; and WHEREAS, some of the designated projects to be completed were the Storm Water Drainage (Culvert Crossings Project); Sanitary Sewer Around Bass Bay and Road Improvements (Kurtze Lane Road Project and Bass Bay Road Project); Traffic Control Signals Project; and Sanitary Sewer Interceptor (Northwest Plant Abandonment Project), and WHEREAS, MUNICIPALITY did, to implement said projects, plan, design, advertise for bids, accept lowest bid, and enter into of said contract to complete this project: contracts as follows, to perform all tasks according to the terms Date Contract Date Contract Completion and Contractor Let Executed Acceptance Date STORM WATER DRAINAGE (CULVERT CROSSINGS PROJECT) Edgerton Contr. " " 11-22-85 SANITARY SEWER AROUND BASS BAY AND ROAD IMPROVEMENTS (KURTZE LANE ROAD PROJECT) Reesman ' s Exc. 9-10-85 8-27-85 11-15-85 0 -2- SANITARY SEWER AROUND BASS BAY AND ROAD IMPROVEMENTS (BASS BAY ROAD PROJECT) Wolf Paving 8-27-85 8-28-85 11-15-85 TRAFFIC CONTROL SIGNALS PROJECT Outdoor Lighting -- 9-26-85 12-18-85 SANITARY SEWER INTERCEPTOR (NORTHWEST PLANT ABANDONMENT PROJECT) Schneider " -I " WHEREAS, both parties to said contract intended that all work and materials called for in said contract would be completed and MUNICIPALITY had intended that all monies owed under said 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 not going to be completed the MUNICIPALITY is not going to be completed before December 31, 1985 and because said contract is 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 Wis Stats. specifically for this project amongst others; and monies to pay project costs authorized pursuant to section 66.46, WHEREAS, if the total expenses are not eligible for tax incremental financing, then the MUNICIPALITY will now be required to levy taxes to repay said project costs and the MUNICIPALITY would not have entered into this project had it known that the 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 has estimated that the cost of completion of the Projects is supervising engineer, the consulting engineer as to said project, $55,000.00; 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 0 -3- WHEREAS, ESCROW AGENT has agreed to act as escrow agent under the terms of this Agreement; and WHEREAS, pursuant to Resolution No. 356-85 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 $55,000.00 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 the MUNICIPALITY has under the terms of the Contracts. The MUNICIPALITY relinquishes any and all claim it may have to the funds constituting the escrow deposit or to the return of said of this Agreement, and thereby the MUNICIPALITY is deemed to have 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 ESCROIJ 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: (a) Investment of Escrow Deposit. The ESCROW AGENT shall hold the deposit in an interest bearing account for such period of time as there are monies left in the 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 -4- 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. The Contracts are incorporated in their entirety into this Escrow Agreement and made a part hereof. The ESCROW AGENT shall have no release and distribute the funds in accordance therewith as responsibility for the terms of the Contracts other than to 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 schedule of payments agreed to in the Contracts. the Engineer will determine whether the performance is in accordance with the 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 entitled thereto under the terms and conditions of the Contracts 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 Contracts and the proper time for retainage, if any, has expired, Engineer will, unless there is any failure of performance, submit a final Certificate for Payment to the ESCROW AGENT when such payment is due and ESCROW AGENT shall release and distribute funds accordingly. (vi) If, due to investment income, a decrease in the scope of the Projects or for any other reason resulting from the terms 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 considered not to have been expended under Section 66.46 Wis. Stats. and will not qualify as TIF eligible costs. The 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 0 0 -5- MUNICIPALITY will be required to designate the funds returned allocation as provided in Section 66.46(6)(c! Wis. Stats. from the Escrow Account directly to the repa ment of such 4. The ESCROW AGENT. (a) Annual Report. ESCROW AGENT shall, in the month of February of each year while this Agreement is in effect and as soon as practicable after the termination of this Agreement, forward by first class registered mail to the MUNICIPALITY a report of the receipts, income, investments and payments of and from all of the Escrow Account during the preceding calendar year, including in year, regarding the manner in which it has carried out the such report a statement, as of the end of the prededing calendar requirements of this Agreement. The MUNICIPALITY shall have the right, at any time during business hours, to examine all of the ESCRSOW AGENT'S records regarding the status and details of the Escrow Account. (b) Separate Funds; Accountability. ESCROW AGENT shall keep all monies deposited hereunder, and all investment income thereon and profits therefrom, at all times in the special fund and separate trust account, wholly segregated from all other funds and on funds or of ESCROW AGENT; and shall never at any time use, loan deposit with it; shall never commingle such deposits with other 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 AGENT hereunder shall not be deemed to be a banking deposit of assets enjoyed by any trust beneficiary. Property held by ESCROW the MUNICIPALITY, and ESCROW AGENT shall have no right or title MUNICIPALITY shall have no right of withdraw1 thereof. with respect thereto (including any right of set-off) and the (c) Liability and Indemnification. ESCROW AGENT shall be under no obligations to inquire into or be in any way resDonsible for the performance or nonperformance by the MbNICiPALItY 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 -6- 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 anything which it may do or refrain from doing in good faith and in the exercise of reasonable care and believed by it to be within the discretion or power conferred upon it by this Agreement, except obligation imposed upon it hereunder. ESCROW AGENT is authorized for its negligence or its default in the performance of any purporting to be signed by the proper party or parties and will to act upon any document believed by it to be genuine and 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 connection herewith or on account of any act or omission to act by ESCROW AGENT in connection with this Agreement. Such 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 AGENT. The resignation of the ESCROW AGENT shall take effect comparable qualifications to those of the resigning ESCROW 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 nevertheless on written request of the MUNICIPALITY or on the like effect as if originally named as escrow agent herein; but request of the successor escrow agent, the escrow agent ceasing 0 e -7- such successor escrow agent, upon the terms herein expressed, all to act shall execute and deliver an instrument transferring to the rights, power, and duties of the escrow agent so ceasing to act. Upon the request of any such successor escrow agent, the MUNICIPALITY shall execute any and all instruments in writing for 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. (a) Third-party Beneficiary. This Agreement into by the MUNICIPALITY and ESCROW AGENT for MUNICIPALITY and the parties to the Contracts revocable by the MUNICIPALITY or ESCROW AGENT. The Escrow has been entered the benefit of the and is not Account has been irrevocably pledged to the payment of the costs Agreement. Notwithstanding the foregoing, this Agreement shall of completion of the Projects in accordance with this not be construed as creating any rights in or obligations to any person other than the parties hereto. a Agreement shall he invalid or ineffective for . If any section, paragraph, clause or - any reason, the remainder of this Agreement shall remain in full remainder of this Agreement would not be entered into by the force and effect, it being expressly hereby agreed that 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. -8- 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: ATTEST : BY: WAYNE G. SALENTINE, MAYOR BY: CHARLOTTE L. STEWART, CLERK This Agreement drafted by Dale W. Arenz, Assistant City Attorney