ESCROW AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is made and entered into
on ~ I'D , 2008, by and among the COMMUNITY
REDEVELOPMENT AGENCY OF THE CITY OF CLEARWATER, FLORIDA, a public
body corporate and politic of the State of Florida ("Agency"), MDP CLEARWATER, LLC,
a Georgia limited liability company ("Developer"), and STEWART TITLE GUARANTY
CO. ("Escrow Agent").
WITNESSETH:
WHEREAS, pursuant to its Request for Proposals, dated May 8, 2007, the
Agency has tentatively accepted the proposal of Developer in response thereto, subject
to negotiation of a definitive Development and Disposition Agreement with Developer
("Agreement") setting forth the terms and conditions by which Developer may develop
and purchase from Agency the real property more particularly described on Exhibit "A"
attached hereto and incorporated herein ("Property");
WHEREAS, Developer has agreed to deposit the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) (the "Escrowed Funds") in escrow with the
Escrow Agent as security for Developer's good faith negotiation of the Agreement and
which shall become the security deposit required under the terms of the Agreement
should the Agreement be executed;
WHEREAS, Escrow Agent is a licensed title insurance company in the State of
Florida, is independent of Developer and is duly qualified to act as escrow agent;
WHEREAS, the parties have requested that the Escrow Agent act as escrow
agent in accordance with the terms of this Escrow Agreement and Escrow Agent has
agreed to do so.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and are incorporated
herein by reference.
2. Deposit of Funds. Simultaneously with the execution of this Escrow
Agreement, Developer has delivered the Escrowed Funds to Escrow Agent. Escrow
Agent hereby acknowledges receipt of the Escrowed Funds and agrees to hold same in
escrow for the parties under the terms of this Escrow Agreement. All funds held in
escrow shall be placed in an interest-bearing account, with interest accruing to the
benefit of Developer. The Escrowed Funds shall be applied to the purchase price of the
Property as set forth in the Agreement ("Purchase Price") at closing, unless Developer
is in default under the Agreement, in which event the interest shall be paid to the
Agency, or unless this Escrow Agreement is terminated pursuant to Section 3(d) hereof.
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3. Disbursement of Funds from Escrow. The Escrowed Funds shall be
disbursed as follows:
(a) Unless otherwise disbursed as provided herein, the Escrowed Funds
and shall be paid to Agency at closing and shall be credited to the Purchase Price.
(b) In the event the parties enter into theAgreement and either party is in
default under the terms of the Agreement, within three (3) business days after receipt of
notice of such default given by the non-defaulting party to Escrow Agent with copies to all
parties set forth in Section 7 hereof, Escrow Agent shall promptly deliver the Escrowed
Funds, and all accrued interest thereon, to the party entitled to the Deposit in accordance
with the terms of the Agreement.
(c) If a conflict shall have arisen as to the default described in
subparagraph (b) above, upon receipt by the Escrow Agent of (i) joint written instructions
signed by Developer and by the Agency directing payment of all or a portion of the
Escrowed Funds, or (ii) a final judgment or order of a court of competent jurisdiction
directing the payment of all or a portion of the Escrowed Funds held hereunder, the
Escrow Agent shall promptly deliver to the person or persons specified, out of the escrow
created hereunder and in the manner specified in the instructions, judgment or order, the
amount or amounts of Escrowed Funds specified in such instructions, judgment or order,
and the Escrow Agent shall thereupon be relieved and discharged from any responsibility
or obligation with respect to such amount or amounts of the Escrowed Funds delivered in
accordance with this Agreement.
(d) Notwithstanding the provIsions of subparagraph (c) above, in the
event a dispute should arise regarding the Escrowed Funds, the Escrow Agent shall have
the right, in its sole discretion, to deposit with the registry of any State court located in the
Pinellas County, Florida, the amount remaining in escrow. In such a case, the Escrow
Agent shall implead Developer and the Agency in any such action filed with the court.
4. (a) Except as set forth in this Escrow Agreement or as may be agreed
to in writing by Developer, Agency and Escrow Agent, Escrow Agent shall have no
obligation to take any action or perform any act other than to receive and hold the
Escrowed Funds and to disburse same in accordance with the terms and conditions of
this Escrow Agreement.
(b) Escrow Agent agrees to perform the duties herein required of it to
the best of its ability and in such manner that the interests of Developer and Agency
may be adequately and effectively protected. Escrow Agent shall not be answerable,
liable or accountable except for its own bad faith, willful misconduct or negligence.
Escrow Agent shall not be under any obligation to take any action toward the execution
or enforcement of the rights or interests of Developer or Agency under the Agreement,
whether on its own motion or on the request of any other person or entity, whether or
not a party hereto. Escrow Agent is authorized to act on any document believed by it in
good faith to be genuine and to be executed by the proper party or parties, and will incur
no liability by so acting. Agency and Developer agree to indemnify and hold harmless
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Escrow Agent from any and all claims, actions, damages, demands and judgments from
or to Agency, Developer, or third parties, arising out of any act or omission of Agency or
Developer and not caused by bad faith, willful misconduct or negligence of Escrow
Agent.
(c) Escrow Agent shall be obligated to perform only such duties as are
herein set forth, and no implied duties or obligations shall be read into this Escrow
Agreement.
(d) Should Escrow Agent receive or become aware of conflicting
demands or claims with respect to this Escrow Agreement, the Escrowed Funds or the
rights of any party hereto, Escrow Agent shall be entitled to refuse to comply with any
such demand or claim, and in the event of such demand or claim, Escrow Agent shall
deliver the Escrowed Funds to the registry of the appropriate court, whereupon Escrow
Agent shall be relieved of any further duties or obligations hereunder.
5. This Escrow Agreement is to be performed in the State of Florida and
shall be governed by and construed in accordance with the laws of the State of Florida.
6. This Escrow Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto, provided that Escrow Agent shall not
assign its rights, duties or obligations hereunder in whole or in part without the prior
written consent of the Agency and Developer, and any such assignment without said
consent shall be void.
7. All notices hereunder shall be deemed delivered (a) on the date of
delivery, if hand delivered, (b) three (3) days after deposit, if sent by United States
registered or certified mail, postage prepaid, addressed to the parties at the respective
addresses shown below, (c) on the date of dispatch, if sent by Federal Express, UPS or
other over-night courier, or (d) on the date of transmission if sent by fax, but only if a
notice by fax is accompanied by another method permitted hereunder; in any event in
accordance with the address set forth below, provided, however, the parties may, by
like notice, designate any further or different addresses to which subsequent notices
shall be sent:
To Escrow Agent:
Stewart Title Guaranty Co.
c/o Stewart Title of Pinellas, Inc.
11500 Seminole Boulevard
Largo, FL 33778
Fax: (727) 3S3-452~ f!95 ~>Itj
To Agency:
Community Redevelopment Agency of
the City of Clearwater
Attn: Rod Irwin
112 South Osceola Avenue
Clearwater, Florida 33756
Fax: (727) 562-4075
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To Developer:
Pamela S. Akin, Esquire
City of Clearwater
112 South Osceola Avenue
Clearwater, Florida 33756
Fax: (727) 562-4021
MDP CLEARWATER, LLC
Attention: Daniel Malino, Esquire
3280 Peachtree Road, NW, Suite 600
Atlanta, GA 30305
Fax: (882) 262-4004
With copy to:
With copy to:
E. D. Armstrong III, Esquire
Johnson, Pope, Bokor,
Ruppel & Burns, LLP
911 Chestnut Street
Clearwater, FL 33756
Fax: (727) 462-0365
8. If any clause, provision or section of this Escrow Agreement shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability or such clause, provision or section shall not affect any of the remaining
clauses, provisions or sections hereof.
9. This Escrow Agreement contains all of the escrow instructions to Escrow
Agent and shall not be modified or supplemented without the written approval of
Agency, Developer and Escrow Agent.
10. All personal pronouns used in this Escrow Agreement whether used in the
masculine, feminine or neuter gender, shall include all other genders, and the singular
shall include the plural and vice versa.
11. Developer and Agency hereby authorize, direct and request Escrow Agent
to invest and reinvest the Escrowed Funds in such savings accounts, certificates of
deposit, repurchase obligations, money-market funds or such other forms of
investments as the Escrow Agent may determine in its sole discretion.
12. This Escrow Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original instrument and all of such counterparts
shall constitute one and the same agreement.
13. Time is of the Essence of this Escrow Agreement.
IN WITNESS WHEREOF, Developer, Agency and Escrow Agent acting by and
through their respective duly authorized and empowered officers and representatives,
have executed and sealed this Escrow Agreement the day and year first written.
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AGENCY:
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF CLEARWATER, FLORIDA
By: ~/~
~ V. Hibbard
Chairperson
Approved as to form:
Attest:
DEVELOPER:
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MOP CLEARWATER, LLC, a Georgia
limited lia~any
By: ~
Daniel J. Miles
Member
Pamela K. Akin
City Attorney
ESCROW AGENT:
Stewart Title of
th A. Her an Asst. Vice President
414 4th Avenue No,
S t .P e t e r s bur g, F L 3 3 70 1
'::'e 1 : 895 - 3 6 6 4 Fax: ( 727) 895 - 2514
02/20/08 04:20 PM
48674.114340
#430720 v1
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