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HomeMy WebLinkAboutDGOGWaterlooia10032018,LLC - Escrow Agmnt - 6/17/19Please return this copy to: City Clerk & Finance Dept. 715 Mulberry St. Waterloo, IA 50703 ESCROW AGREEMENT This Escrow Agreement (the "Agreement") is entered into as of June 11 , 2019, by and among City of Waterloo, Iowa ("Seller"), DGOGWaterlooia10032018, LLC ("Buyer"), Iowa Title Guaranty ("ITG"), and Whitfield & Eddy, P.L.C. ("Escrow Agent"). RECITALS A. Seller and Buyer are parties to a certain Purchase and Sale Agreement concerning real property described on Exhibit "A" hereto (the "Property). B. On or about April 30, 2019, judgment was entered against Seller in the case of Nickey v. City of Waterloo, Iowa, case no. SCSC171773, for $4,902.00 plus costs and interest at 4.43% from September 13, 2018 (the "Judgment"). Seller has filed an appeal of the Judgment. C. Pursuant to law, the Judgment is a lien against the Property. The parties desire to escrow funds as set forth in this Agreement to enable a closing under the Purchase and Sale Agreement. D. ITG has issued Title Commitment C -18C000028, effective May 8, 2019, at 8:00:00 a.m., with proposed owner coverage in favor of Buyer. 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. Funds Escrowed. The parties agree that the Escrow Agent shall act as escrow agent for the sum of $6,000.00 (the "Funds") to be received from Seller. Escrow Agent will handle and distribute the Funds solely in accordance with the terms of this Agreement. Buyer and Seller agree to execute and deliver all escrow instructions that are reasonably necessary to carry out the terms and intent of this Agreement. 2. Duties of Escrow Agent. The Escrow Agent shall have only such responsibilities with respect to the Funds held in escrow as are expressly provided for in this Agreement. The Escrow Agent shall be accountable only for Funds that it actually receives from Seller. 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. The account will not bear interest for the benefit of either party. (b) Maintain accurate records of all receipts and disbursements. (c) Distribute all Funds, in whole or in part, to Seller, Buyer, or other identified third parties in such amounts as directed by written authorization of Seller, Buyer, and ITG. 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 Buyer and Seller. (d) The Escrow Agent is authorized to act upon any document reasonably believed by it to be genuine and signed by the proper party or parties. The Escrow Agent shall not be liable for any error of judgment or for any act done or omitted by it in good faith, or for anything that it may in good faith do or refrain from doing in connection with its responsibilities under this Agreement. 3. Satisfaction of Judgment. Seller shall have until March 31, 2020 to resolve the Judgment by completion of appeal or by settlement with the Judgment holders. If Seller has not done so, then at any time after March 31, 2020, Buyer may deliver written instructions to the Escrow Agent to pay over to the Judgment holder that portion of the Funds that is sufficient to fully satisfy the Judgment. Escrow Agent may coordinate payoff details with legal counsel for Seller, namely, Christopher Wendland, 315 E. 5th Street, Waterloo, IA 50703, 319-234-5701, and/or legal counsel for the Judgment holders, namely, Kevin Engels, 411 Main Street, Cedar Falls, IA 50613, 319-277-4102. Escrow Agent will release Funds to pay the Judgment only in exchange for a properly executed satisfaction of judgment, which instrument shall be delivered to Seller's legal counsel or shall be filed directly by Judgment holders' legal counsel, with proof of filing provided to Seller's legal counsel. Any excess Funds remaining after such payment shall be immediately paid to Seller and delivered to Seller's legal counsel named above. 4. Teimination 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 Buyer and Seller, who shall then mutually agree upon a successor escrow agent. If Buyer and Seller 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 Buyer and Seller 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 Buyer and Seller jointly or by the court. 5. Notices. Any notice under this Agreement shall be in writing and shall be delivered in person, by overnight air courier service, or by United States registered or certified mail, postage prepaid, and addressed as follows: SELLER BUYER City of Waterloo, Iowa Attn: Tim Andera 715 Mulberry Street Waterloo, IA 50703 2 DGOGWaterlooia10032018, LLC Attn: 1598 Imperial Center, Suite 2001 West Plains, MO 65775 ESCROW AGENT Whitfield & Eddy, P.L.C. Attn: David Nelson 699 Walnut Street, Suite 2000 Des Moines, IA 50309 ITG Iowa Title Guaranty Attn: Matt Veldey 1963 Bell Avenue, Suite 200 Des Moines, IA 50315 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for overnight delivery to a courier service that guarantees next day delivery, or (ii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid. A party may change its address for notice purposes by providing notice as set forth in this Section. 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. General Terms. This Agreement, including exhibits, is the entire agreement of the parties concerning the subject matter hereof. It is binding on the parties and the respective heirs, personal representatives, successors and assigns of each, and it may not be amended except by a written instrument signed by all parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which 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. City of Waterloo, Iowa DGOGWaterlooia10032018, LLC Quentin Hart, Mayor Attest: By: Title: Whitfield & Eddy, P.L.C. Iowa Title Guaranty By: By: Title: 3 Title: EXHIBIT "A" Parcel "H" of Acquisition Plat Doc. 2019-16312 filed May 3, 2019, being a part of the Southeast Quarter and a part of vacated Idaho Street in said Southeast Quarter; an in Section 19, Township 89 North, Range 12 West of the Fifth Principal Meridian, in the City of Waterloo, Black Hawk County.