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HomeMy WebLinkAboutClark, Butler, Walsh & Hamann-6/11/2012ESCROW AGREEMENT juvu_ 1(I m(2- This Escrow Agreement (the "Agreement") is entered into as of , by and among City of Waterloo, Iowa ("City"), Heene Family Trust ("Heene") and Clark, Butler, Walsh & Hamann ("Escrow Agent"). RECITALS A. On or about March 8, 2012, City purchased from Heene certain real property located at 218 W. Mullan Avenue, Waterloo, Iowa (the "Property"). At closing, the parties believed that title to the Property was clear and unencumbered. The parties have since learned that a mechanic's lien was filed after pre-closing review of title. The lien was filed on or about January 27, 2012 by Al Brase d/b/a Brase Electric as case no. LNCV 118165 (the "Lien"). B. Heene is disputing the validity of the Lien. The City intends to sell the Property to a third party before the Lien dispute is resolved. On the terms set forth in this Agreement, Heene is willing to place funds into escrow to ensure that the City and the Property purchaser do not suffer loss in connection with the Lien. AGREEMENT NOW, THEREFORE, in consideration of the premises and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Escrow Agent. The parties agree that the Escrow Agent shall act as escrow agent for the sum of $5,000.00 (the "Funds") to be received from Heene. Heene shall bear all costs, fees and charges of the Escrow Agent. 2. Duties of Escrow Agent. The Escrow Agent shall have only such responsibility with respect to the Funds held in escrow as is expressly provided for in this Agreement. The Escrow Agent shall be accountable only for Funds that it actually receives from Heene. The Escrow Agent shall provide services with respect to the Funds as follows: (a) Receive and deposit all Funds into Escrow Agent's trust account at U.S. Bank located at Waterloo, Iowa. The account will not bear interest for the benefit of City or Heene. (b) Maintain accurate records of all receipts and disbursements. (c) Distribute all Funds, in whole or in part, to Heene, City or other identified third parties in such amounts as stated below. As stated in the Lien, the labor and material was last allegedly supplied to the Property on September 1, 2010. Pursuant to Ch. 572.27, Code of Iowa, any action to enforce the Lien must be brought within two years from the expiration of the ninety days for filing the claim, which date for enforcement of the claim is November 30, 2012. No action to enforce the claim has been filed as of the date hereof. If no action is filed on or before November 30, 2012, the Escrow Agent shall disburse the Funds to Heene. If an action to enforce the claim is filed on or before November 30, 2012, Heene shall forthwith post a bond with the Clerk of Court pursuant to Ch. 572.15, which will discharge the Lien. The Escrow Agent shall then disburse the Funds to Heene. If Heene fails to post the bond within twenty (20) days of being served with notice of suit, the Escrow Agent shall disburse so much of the Funds to the claimholder as are sufficient to obtain a release of the Lien and shall file a release of the Lien and disburse any remaining Funds to Heene. The parties acknowledge and agree that, except as provided in Section 3, the Escrow Agent shall hold and handle all Funds until distribution is authorized in connection with resolution of the Lien dispute and satisfaction of all claims arising in connection therewith or hereunder as set out above. In the absence of express written direction to the contrary, Funds shall be distributed to payees by first class U.S. mail at the address indicated in notice received from City. Costs, fees and charges of the Escrow Agent may be charged against the Funds, after notice to Heene and City. 3. Termination of Escrow Agent Services. Before the intended and final distribution of Funds as contemplated by the parties, the services of the Escrow Agent may be terminated as set forth in this section. Upon the Escrow Agent's delivery of any Funds in escrow and related records to a successor escrow agent as directed in writing, the Escrow Agent shall be released from any and all further liability with respect to such Funds. The Escrow Agent may also resign upon 14 -days' advance written notice to City and Heene, who shall then mutually agree upon a successor escrow agent. If City and Heene have not appointed a successor escrow agent before the effective date of such resignation, the Escrow Agent may petition the Iowa District Court for Black Hawk County to appoint a successor, and City and Heene shall be liable for all cost or expense, including but not limited to reasonable attorneys' fees, incurred by the Escrow Agent in such proceeding. The Escrow Agent shall deliver any Funds in escrow and related records to the successor escrow agent appointed by City and Heene jointly or by the court. 4. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person or by United States registered or certified mail, postage prepaid, and addressed as follows: CITY HEENE City of Waterloo, Iowa Attn: Michelle Weidner 715 Mulberry Street Waterloo, IA 50703 ESCROW AGENT Clark, Butler, Walsh & Hamann Attn: Chris Wendland 315 E. 5th Street Waterloo, IA 50703 2 Heene Family Trust Attn: Charles S. Heene, Trustee 3232 Osage Road Waterloo, Iowa 50703 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, or (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. 5. Binding Effect; Term. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective personal representatives, successors, and assigns. This Agreement shall continue in full force and effect until the Escrow Agent has distributed all Funds in its possession and fulfilled all related duties to account for its handling and disbursement of the Funds, or until terminated by the mutual written agreement of all parties, whichever occurs first. 6. Governing Law; Litigation. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa, without regard to conflict of law principles. As to any dispute with respect to this Agreement, the parties hereby agree and consent that the parties and such dispute shall be subject to the JURISDICTION AND VENUE OF THE IOWA DISTRICT COURT FOR BLACK HAWK COUNTY for any and all matters arising out of or in any way relating to such dispute or the resolution thereof. 7. Captions. The subject headings of the sections of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. 8. Entire Agreement. This Agreement and the exhibits, if any, hereto constitute the entire agreement between the parties pertaining to the subject matter hereof. All exhibits hereto, if any, are hereby incorporated into and made a part of this Agreement. Except as otherwise set forth in this Agreement, this Agreement may not be modified or amended except in a written instrument signed by the parties. 9. Severability. In the event any provision of this Agreement is held wholly or partly invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full and effect. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be deemed to be written and shall be construed and enforced as so limited. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which, including signature copies transmitted by facsimile or other electronic means, shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Escrow Agreement by their duly authorized representatives as of the date first set forth above. 3 Clark, Butler, Walsh & Hamann Heene Family Trust By: dt-tAA 14)4,kce,ii4 Chris Wendland, VP City of Wa loo, Iowa By: rnest G. Clark, a"or Attest: Suzy Schares City Clerk 4 Charles S. Heene, Trustee