Escrow Agreementl9T.Y .Z�lsi1 ► D 01041Di►`TI'il
This escrow agreement (the "Agreement") is entered into by and between and
KALISPELL BOWSER CREEK ASSOCIATES, LLC ("Developer") and Touchstone, LLC,
Northstar Associates, LLC, 520 Three Mile Drive Associates, LLC and City of Kalispell
(collectively, the "Participants"), and Alliance Title and Escrow ("Escrow Agent") as of this 20th
day of March, 2006.
RECITALS:
A. Developer is the owner of that certain real property located in the City of
Kalispell, County of Flathead ("Developer's Tract") more specifically described in Exhibit A
attached hereto and incorporated herein by reference.
B. The Participants own land in the vicinity of the Developer's Tract as more
specifically described in Exhibit A (collectively, the "Participants' Tracts").
C. The Developer's Tract and the Participants' Tract are intended to be served by a
single sewage lift station.
D. The Developer has agreed to construct the sewage lift station and the Participants
have agreed to pay their proportionate share of the cost of such construction work, as more
particularly described in the Lift Development Agreement entered into between the Participants
and the Developer of date even herewith. Said work which the Participants have agreed to pay
for hereinafter referred to as the "Work."
E. The parties desire to enter into this Escrow Agreement to ensure the Participants
have funds available to pay for the Work.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. This Agreement shall be effective as of the date hereof (the "Effective Date")
2. Any capitalized terms used herein and not defined herein shall have the same
meaning as set forth in the Lift Development Agreement.
3. The total sum to be escrowed by the Participants is Two Hundred Seventy Seven
Thousand Seven Hundred Fifty Eight and 051100 Dollars ($277,758.05) (the
"Funds"). Each Participants' Pro Rata Share of the Funds is as follows:
(A) Developer's Pro Rata share shall be 9.81 %
(B) Touchstone, LLC's Pro Rata share shall be 17.67%;
(C) Northstar Associates, LLC Pro Rata share shall be 17.98%;
(D) 520 Three Mile Drive Associates, LLC's Pro Rata share shall be 6.71%;
(E) City of Kalispell's Pro Rata share shall be 47.83%.
Escrow Agreement
(Lift Development Agreement)
4. The Funds are to be held in an interest bearing account in a federally insured financial
institution to ensure the payment for completion of the Work. Interest will be earned
on behalf of Participants and Developer equivalent to their Pro Rata Share.
The Funds for the Work are to be held until Escrow Agent receives written
disbursement instructions from the Participants and Developer. The Participants and
Developer shall provide appropriate disbursement instructions to Escrow Agent when
one of the following events has occurred: (a) Developer has had all or a portion of
the Work performed on its behalf and provided the Participants with (1) a copy of an
application for payment from the General Contractor, and (ii) a cancelled check or
other written evidence of Developer advancing such separately allocated sum on
behalf of the Participants and the Participants have approved the foregoing; or (b) if
Developer fails to meet its obligations under the Lift Development Agreement and the
Participants have had the Work performed on their behalf and provided Developer
with (i) a copy of an application for payment from the General Contractor, and (ii) a
cancelled check or other written evidence of the Participants paying such separately
allocated sum on behalf of the Participants and Developer has approved the
foregoing. If the foregoing event (a) occurs, Developer and the Participants shall
instruct Escrow Agent that the Funds shall be released to Developer. If the foregoing
event (b) occurs, Developer and the Participants shall instruct Escrow Agent that the
Participants shall receive the Funds. To the extent any Funds remain after completion
of the Work, the Participants and Developer will direct Escrow Agent to release the
remaining Funds to the Participants based on their Pro Rata Share. Escrow Agent
will release Funds under this Paragraph 5 within five (5) days of receipt of joint
instructions for same. Any approvals required hereunder shall not be unreasonably
withheld and shall be granted or denied within five (5) days of request for same.
Requests for disbursement shall occur no more frequently than once a month.
Without otherwise modifying the foregoing, Escrow Agent is immediately authorized
to release the Preliminary Design Costs ($13,763.25) to Thomas Dean & Hoskins.
In the event a controversy arises over said Funds or Escrow Agent receives
conflicting instructions from Developer and the Participants regarding the Funds,
Escrow Agent may tender the Funds into District Court in the State of Montana,
County of Flathead for disposition, in which event Escrow Agent shall be entitled to
pay from the escrowed Funds reasonable attorney's fees to the attorney Escrow Agent
chooses to tender such Funds into the Court plus Court costs, and to deduct therefrom
all escrow fees which have accrued in relation to such Funds and tender the remaining
Funds to the Court.
7. The undersigned agree to save and hold harmless Escrow Agent from any liability
arising under and as a result of this Escrow Agreement.
8. The parties agree that time is of the essence of this Agreement.
9. In the event that any party hereto shall be delayed or hindered in or prevented form
the performance required hereunder by reason of strikes, lockouts, labor troubles,
Escrow Agreement
(Lift Development Agreement) 2
failure of power, riots, insurrection, war, acts of God, or other reason of like nature
not the fault of the party delayed in performing Work or doing acts, other than
financial causes, such party shall be excused for the period of time equivalent to the
delay caused by such event. Notwithstanding the foregoing, any extension of time for
such delay shall be conditioned upon the party seeking an extension of time
delivering written notice of such delay to the other parties within ten (10) days of the
event causing the delay.
10. The foregoing terms constitute the entire agreement between the parties, and this
Agreement shall not be modified, changed or amended by any subsequent written or
oral agreement unless agreed to in writing by Escrow Agent. This Agreement shall
be governed in accordance with the laws of the State of Montana, excepting its choice
of law rules.
11. This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which taken together shall constitute one and the same
instruments.
PARTICIPANTS:
Touchstone, LLC,
a of dni->4,ta limited liability company
Its: f�t.aidt, Gam,
Pro Rata Share of the Funds: 49$ ,079.85
Northstar Associates, LLC,
a Montana limited liability company
Timothy Birk
Managing Member
Justin Dean
Managing Member
Pro Rata Share of the Funds: $49,940.90
Escrow Agreement
(Lift Development Agree -anent)
Touchstone, LLC
1289 Meridian Road
Kalispell, MT 59901
Attn: Mr. David J. Walker
Phone:
Fax: 5 - 26S ,
Northstar Associates, LLC
2239 Lower Valley Road
Kalispell, MT 59901
Attn: Mr. Tim Birk
Phone:
Fax:
Mar i • . •< 0K .
406 752 1157 p•5
failure ofpmver, riots, insumrxtion, war, acts afGod, or other reason of tii a nature
not the fault ofthe party delayed in performing Work or doing acts, other than
financial causes. such party shall be excused for the period of time equivalent to the
delay caused by each event. Notwithstanding the foregoing, any extension of time for
Ruch delay shall he conditioned upon the party seeking an extension of time
deli-mring written notice of such delay to the other parties within ten (10) days of the
event causing the delay.
10. The foregoing terms constitute the entire agreement be weea the parties, and this
Agreement sha11 not be modified, changed or amended by any subsequent written or
oral agreement unless agreed to in writing by Escrow Agent. This Agreement shall
be governed in accordance with the laws oftho State of Montana,excepting its choice
of law rules
i t. This Agreetmnt may be executed in two or more counterparts, each of which shall be
deemed an original but uH of which taken together shall constitute onn and the Fame
instruments.
Touchstone, LLC,
a limited liability corMany
Pro Rats Share of the ds: 349,879.85
Nonbstar late% LLC,
a Montana limited liability cc
Timothy Birk
Managing Mgm
1u
Managing Member
Pro Bata Share of the Fundin- S49,940-W
EwLww AW1CN=V-"
(Lin rkv¢kgmW AgenvwM)
Toud stdaar- LLC
1289 Meridian Road
Kalispell, MT 59901
Attu: Mr. David J. Walker
Fax:
Nudbutar Associates. LLC
2239 Lower Valley Road
Kalispell, MT 59901
Attu: Mr. Tim Birk
Phone:
Fax:
0
t d 6659-Z6L-9Z9 uta®0 • H u!lsnr d9Z: 60 90 ZZ MIN
520 Three Mile Drive Associates, LLC,
a Delaware limited liability company
By: Farmers Branch/Midway Partners, L.P.,
a Texas limited partnership,
its sole member
By: VPI, Inc., a Caliform co ora on,
its General Par er
By:
Name: t SckSt� n
Its: Pre-S I 4-
Pro Rata Share of the Funds: $18,637.57
..CITY OF ELL
f4AlG�
Its: C. t 'I 7 rh A v is G. ce-o�
Pro Rata Share of the Funds: $132,851.68
DEVELOPER:
Kalispell Bowser Creek Associates, LLC,
a Montana limited liability company
By: VPI, Inc., a Cal'fo is c o ation,
its Manager
By:
Name: Rohm+ .Tsuc ksr, n
Its: 'Prast''r4&'n -
Pro Rata Share of the Funds: $27,248.06
Escrow Agreement
(Lift Development Agreement) 4
520 Three Mile Drive Associates, LLC
121 Spear Street, Suite 250
San Francisco, CA 94105
Attn: Mr. Robert Isackson
Phone: 415-546-9373
Fax: 415-227-2228
City of Kalispell (City Manager)
P.O. Box 1997
Kalispell, MT 59901
Attn: Mr. James H. Patrick
Phone:
Fax:
Kalispell Bowser Creek Associates, LLC
121 Spear Street, Suite 250
San Francisco, CA 94105
Attn: Mr. Robert Isackson
Phone: 415-546-9373
Fax: 415-227-2228
The undersigned acknowledges receipt of the above money in the amount of Two Hundred
Seventy Seven Thousand Seven Hundred Fifty Eight and 051100 Dollars ($277,758.05) to be
held in escrow in accordance with the terms of the foregoing instrument. The Escrow Agent
does not assume and shall not be under liability on account of performance or non-performance
of any party to the Agreement; and the Escrow Agent may, at its option, require the receipt,
release and authorization in writing of all parties before paying money or delivering or
redelivering documents or property to any party or to third parties.
ESCROW HOLDER:
Alliance Title and Escrow Debbie Pierce
_ Alliance Title & Escrow Corp.
501 South Main
B Kalispell, MT 59901
Y Phone: 406-752-7606
Name: �— Fax: 406-756-7064
Date: V'?" I —43L d 0�3 Escrow No.
Escrow Agreement
(Lift Development Agreement)