08-06-18 Escrow AgreementESCROW AGREEMENT
THIS ESCROW AGREEMENT is made this day Of �_ {, 2018,
by and between KALISPELL NATIONAL INVESTMENT COMPA, LLC, a
Montana limited liability company, 124 Swan Ridge Court, Kalispell, Montana
59901 herein referred to as "KNIC"; The CITY OF KALISPELL, MONTANA,
P.O. Box 1997, Kalispell, Montana 59903, herein referred to as "City"; and
INSURED TITLES, 1724 Fairview Avenue Suite C, Missoula, MT 59801, herein
referred to as "Escrow Agent".
THE PARTIES AGREE AS FOLLOWS:
RECITALS
A. KNIC and City have executed a Subdivision Improvement
Agreement dated pmU_ _ (1,",_, 2018, hereinafter referred to as the "SIA"
regarding the develoent of a subdivision known as Bloomstone, Phase 2,
located at Assessor's Tract 5C (Assessor's No. 001734), SW V4 of Section 36,
T29N, R22W, P.M.M., Flathead County, Montana. A copy of that SIA is
attached and incorporated to this Agreement as Exhibit 1.
B. One of the obligations of KNIC in the SIA is to provide a financial
security of One Hundred Twenty Five percent (125%) of the estimated total cost
of construction certain improvements set forth in Exhibit A to the SIA
("Improvements"). In addition, the SIA further requires KNIC to deposit as
collateral with the City a Letter of Credit, or other acceptable collateral as
determined by the City, in the amount of Four Hundred Twenty Nine Thousand
Nine Hundred Fourty Five Dollars and Eighty Eight Cents ($429,945.88), and
that such Letter of Credit or other collateral shall have an expiration date of at
least sixty (60) days following the date set for completion of the improvements,
certifying the following:
i. That the creditor guarantees funds in the sum of $429,945.88, the
estimated cost of completing the required improvements in Bloomstone, Phase 2.
ii. That if KNIC fails to complete the specified improvements within the required
period, the creditor will pay to the City immediately, and without further action,
such funds as are necessary to finance the completion of those improvements up
to the limit of credit stated in the letter.
C. The date set for completion of the Improvements is September 1,
2018.
D. In lieu of a Letter of Credit, KNIC and the City have agreed that
KNIC execute an assignment document related to certain securities owned by
KNIC set forth in the attached and incorporated Exhibit 2 ("Assignment"),
which shall be held in escrow with Escrow Agent pending completion of the
Improvements or the expiration of the date set for completion of the
Improvements, and to release the Assignment in accordance with the
instructions set forth below.
Escrow Agreement
Kalispell National Investment Company, LLC / City of Kalispell / Insured TitlesPage - 1 -
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, IT IS
FURTHER AGREED:
1. Execution of Assignment. KNIC has executed the Assignment,
which shall enable the City to liquidate the Securities to the extent necessary to
finance the completion of the Improvements up to the amount of $429,945.88 in
the event that KNIC does not timely complete the Improvements.
2. Escrow of Assignment. Upon execution of this Agreement, KNIC
shall deliver the Assignment to Escrow Agent and the Assignment shall be held
in escrow by the Escrow Agent. The Assignment shall be released by the
Escrow Agent upon the terms and conditions hereinafter specified.
3. Release of Assignment. Upon KNIC's timely completion of the
Improvements, and upon KNIC submitting to Escrow Agent an affidavit of
completion executed by the City, the Escrow Agent shall release the Assignment
to KNIC. If KNIC fails to timely complete the Improvements as required by the
SIA, and upon the City submitting to Escrow Agent an affidavit of non -
completion, the Escrow Agent shall release the Assignment to the City, and the
City shall be able to liquidate the Securities to the extent necessary to finance
the completion of the Improvements up to the amount of $429,945.88, provided
that the unused portion of any of the Securities, and any unused portion of funds
obtained from liquidating any of the Securities, shall be transferred and
assigned back to KNIC. The City agrees to execute any document necessary to
assign any of the unused Securities back to KNIC.
4. Dispute. In case of a dispute between the parties hereto, Escrow
Agent, at its option, is authorized to hold all monies pertaining to this escrow in
its possession until Seller and Buyer mutually direct the Escrow Agent in
writing as to the disposition of the monies, or Escrow Agent may dispose of the
escrow by interpleader or other suitable action, and Escrow Agent shall not be
liable to the parties for such retention or action.
5. Limit on Liability. Escrow Agent shall not be liable for any act or
omission as escrow agent done in good faith in the exercise of its best judgment,
and any act or omission upon advice of its attorney is conclusive evidence of
good faith.
6. Escrow Fees. KNIC agrees to pay the reasonable fees of Escrow
Agent, if any, for its services under this Agreement.
7. Notice. Any notice to be given hereunder shall be in writing and
shall either be served upon a party personally, or served by overnight delivery
service directed to the party to be served at its address set forth below:
To KNIC: Kalispell National Investment Company, LLC
124 Swan Ridge Court
Kalispell, Montana 59901
With Copy To: Mark W. Buckwalter
Buckwalter Law Firm, PLLC
40 2nd St. E., Suite 222
Kalispell, Montana 59901
Escrow Agreement
Kalispell National Investment Company, LLC / City of Kalispell / Insured TitlesPage - 2 -
To City: Doug Russell
City Manager
City of Kalispell, Montana
P.O. Box 1997
Kalispell, Montana 59903
With Copy To: Charles A. Harball, City Attorney
City of Kalispell
201 First Avenue East
Kalispell, Montana 59901
To Escrow Agent: Insured Titles
1724 Fairview Avenue Suite C
Missoula, MT 59801
Notice served by overnight delivery service shall be deemed complete on the
next business day following deposit with the overnight delivery service, and if
sent by fax, notice shall be deemed complete when transmission of the fax is
confirmed by the sending party. A party wishing to change its designated
address shall do so by notice in writing to the other party given in accordance
with this paragraph.
8. Time. Time is of the essence of this Agreement.
9. Remedies. In the event of any default hereunder, the non -defaulting
parties shall have all remedies available at law or in equity, including but not
limited to specific performance. If any party defaults in its performance
hereunder and another party employs an attorney to specifically enforce this
Agreement, the defaulting party agrees to pay, on demand, all costs, charges and
expenses, including reasonable attorney and paralegal fees, incurred by the
party pursuing specific performance.
10. Amendment. This Agreement shall not be modified, amended or
changed in any respect except by written document signed by all parties hereto.
11. Interpretation. This Agreement shall be governed by the laws of the
State of Montana.
12. Facsimiles and Counterparts. This Agreement may be executed in
any number of counterparts, each of which when executed and delivered shall be
an original, but all such counterparts shall constitute one and the same
instrument. As used herein, "counterparts" shall include full copies of this
Agreement signed and delivered by email or facsimile transmission, as well as
photocopies of such email or facsimile transmissions.
13. Binding Effect. The terms and conditions hereof shall inure to the
benefit of, and shall be binding upon, the heirs, legal representatives, and
successors of the parties hereto.
Escrow Agreement
Kalispell National Investment Company, LLC / City of Kalispell / Insured TitlesPage - 3 -
Kalispell National Investment Company, LLC
By�,_
Davis, Manager
"KNIC"
City of Kalispell
By:
Da g Rtfsse , City Manager
"City"
Attest:
Aim e Brunckhorst, City Clerk
INSURED TITLES
By:
Its:
"Escrow Agent"
Escrow Agreement
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