IMPROVEMENT ESCROW AGREEMENT- CABANA CLUB
THIS INSTRUt\ENT PREPARED By:
RECORD AND RETURN To:
THERESA MARIE KENNEY, EsQ,
FORD, JETER, BOWLus, Duss,
MoRGAN, KENNEY & SAFER, P.A.
10110 SAN JOSE BOULEVARD
JACKSONVILLE, FLORIDA 32257
IMPROVEMENT ESCROW AGREEMENT
This IMPROVErJENT ESCROW AGREEMENT ("Agreement") dated as of the _ day of
May, 2002 (the "Effective Date"), by and between BELLEVIEW BILTMORE RESORT, LTD., a
Florida limited partnership (rereinafter called "Owner"), and THE CITY OF CLEARWATER
FLORIDA (collectively tre "City") and FORD, JETER, BOWLUS, DUSS, MORGAN, KENNEY &
SAFER, P.A., a Florida professional association ("Escrow ~ent"). Capitalized terms used in this
Agreement shall have the meanings set forth herein.
WIT N E SSE T H:
WHEREAS, Pursuant to the terms and condlions of that certain letter agreement by and
between Owner and the City dated as of April~, 2002 (the "Letter Agreement"), Owner has
executed a construction contract <:Bted May 1, 2002 (the "Construction Contract"). with Allen
Gezelman State Certified Contracbrs or another duly licensed general contractor ("Contractor")
for completion of certain repairs and improvemerts to thct real property of Owner having a street
address of 1590 Gulf Boulevard, Clearwater, Fbrida (the "Cabana CILb");
WHEREAS, Pursuant to the Letter Agreement, the repairs and improvements to be
performed by Owner are to be COOlpleted in accordance with those certain architectural plans and
specifications (the "Approved Plans") Il"epared by Anthony J. Polito, Jr., Architect, dated
January 21, 2002, contaned on sheets 1,2,3,4 and 5 (the "Work");
WHEREAS, the Construction Contract provides for the payment to O:lntractor of a contract
price not to exceed the sum of ONE HUNDRED SIXTY NINE THOUSAND TWO HUNDRED
THIRTY SIX DOLlARS AND 6CY100 ($169,236.60);
WHEREAS, the City has required Owner to deposit with Escrow Agent and Owner has so
deposited with Escrow Agent the sum of TWO HUNDRED FIFTY THREE THOUSAND EIGHT
HUNDRED FIFTY FOUR THIRTY SIX DOLLARS AND 90/100 ($253,854.90) (the "Escrow Funds")
to guarantee completion of the Work pursuant to the Approved Plans; and
WHEREAS the Escrow Funds shall be held and disbursed only in accordance wth the
terms and coroitions of this Agreement.
I
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the sums of money paid and to be paid rereunder, and for other good and
valuable considerations, the receipt and sufficiency all of which are hereby acknowledged, the
parties hereto do covenant, stipulate and agree as follo'f\5:
1. RECITALS: The recitals set forth above are true and correct and are incoq:mated
herein by this reference.
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Revised May 2. 2002 (3:209'f.l
2. PERFORMANCE OF THE WORK.
(a) Performance of the Work.
(i) Owner agree to perform the Work within six (6) months of the
Effective Date of this Agreement. Owner shall commence the Work or cause it to be commenced
promptly upon the execution and delivery of this Agreement. Following its commencement, the
Work shall be performed in a dligent and workmanlike manner. The Work shall be completed in
accordance with the terms of the Letter Agreement.
(ii) Owner shall cause the Contractor to award any subcmtracts for any
portion of the Work only to professional contractors duly licensed and insured for the portion( s) of
the Work they are engaged to perform. In the event O:lntractor shall be unwlling or unable to
perform the Work in accordance with the terms of this Agreement and the Approved Plans and on
the schedule established by the Letter Agreement, any subsequent contract for performance of any
portion of the Work shall be awarded only to professional contractors duly licensed and insured for
the portion(s) of the Work they are engaged to perform,
(iii) Owner shall cause the Contractor to keep the Property free from
accumulation of waste materials or rubbish caused by operations relating to the Wo rk. At
completion of the Work, Owner will remove from and about the Property waste materials, rubbish,
construction equipment and unused parts, materials and components relating to the Work,
(iv) Performance of the Work shall be supervised by Anthony J. Polito,
Jr., a duly licensed architect or another licensed architect selected by Owner as project manager
("Project Manager").
3. CREATION OF THE ESCROW FUND. Contemporaneous with the execution of th is
Agreement and as a condition to Escrow Agent's and the Oty's execution hereof, Owner has
deposited the Escrow Funds with Escrow Agent, to secure Owner's obligations uroer this
Agreement and the Letter Agreement. In the event any certification of the Project Manager
hereunder shall show that the balance of the Escrow Funds then held by Escrow Agent shall be
insufficient to complete the Work in accordance with the Approved Plans, and except to the extent
Contractor is obligated to absorb tre same pursuant to the terms of the Construction Contract,
Owner shall promptly deliver to Escrow Agent additional funds necessa ry to cure such deficiency,
which sum upon payment by Owner shall be included in the definition of Escrow Funds hereunder.
It being the intent of the parties and the obigation of Owner, that the Escrow Funds shall always
be sufficient to complete the Work.
4. DRAWS AGAINST THE ESCROW ACCOUNT.
(a) So long as Owner shall not be in default of their obligations under this
Agreement and subject to the conditions of paragraph 8 below, Owner shall have the right to draw
against the Escrow Funds upon rece~t by EscraN Agent of a requisition signed by an authorized
representative of Owner stating:
(i) the name and address of the Person to whom the payment is to be made.
(ii) the amount to be paid.
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Re.vised May 2, 2002 (3:200'l]
2
(iii) the obligation on account of which the payment is to be made, showing the
total obligation, any amount previously pac, and the unpaid balance,
(iv) that the obligation was properly incurred, is a proper charge against the
Escrow Funds.
(v) that the amount requisitioned is due and unpaid.
(vi) that with respect to items covered in the requisition, there are no vendors'
mechanics' or other liens, bailment leases and conditional sale contracts
which should be satisfied or discharged before the pa)4l1ents as
requisitioned therein are made, or which will not be discharged before the
payments as requisitioned therein are made, or which will not be discharged
by such payment.
(vii) that 100% of the payments requested by such requisition are for costs
incurred for and on account of the Work. Each such requisitbn shall further
include a Certificate of Contractor or Owner that the activities, material or
other purchased item to which the payment relates has been accomplished,
delivered or instaled.
(viii) Any requisition relating in whole or in part to payments under construction
contracts shall be accompanied by the Project Manager's Certificate or
Certificates certifying:
(a) their approval of the requislion,
(b) that the obligation was properly incurred.
(c) that the amount requisitioned is due and unpaid.
(d) that, insofar as the payment is to be made for work, material, supplies
or equipment have been installed in the utilities or have been delivered
either at the site or at a proper place for fabrication and are covered by
the buildErS' risk insurance.
(e) that all work, material, supplies and equipment for which payment is to
be made are, in the signer's opinion, il accordance with the Approved
Plans or duly approved change orders, all of which shall have been
previously filed wth the City, and
(f) that the balance of the remaining Escrow Funds after payment of the
amounts requisitioned should equal at least 100% of the amount
needed, in the opinion of the Project Manager, b complete the Work.
This Certificate is made solely for purposes of this Agreement and the
protection of the City and may not be relied upon by any third parties.
(b) Following completion of the Work in accordance with the Approved Plans and issuance
of a final lien waiver by Contractor, Owner shall be entitled to any remailing balance of the Escrow
Funds.
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Revi~ej May 2, 2002 (3:2000.)
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5. COVENANTS AND REPRESENTATIONS. Owner represents and warrants to the City as
follows: Owner has not: (i) made an assignment for the benefit of creditors, (ii) filed a petition in
bankruptcy, (iii) been adjudicated insolvent or bankrupt, (iv) petitioned or applied to any tribunal for
any receiver of or trustee for them of any substantial part of its property, (v) commenced any
proceeding relating to them under any reorganization, arrangement, readjustment of debts,
dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, or
(vi) had commenced against them any such proceeding. Except to the extent the same are
applicable to the City's proceedilgs concerning the Cabana Club, Owner is not a party to any
pending action before administrative, mediative, arbitrative, or judicial panel, tribunal or authority,
and to the best of Owner's knolNledge, no such action has been threatened against Owner, the
outcome of which if determined adversely to Owner would have a material adverse effect on
Owner's business or ability to carry out tre Work.
6. DEFAULT; REMEDIES; TERMINATION.
(a) Default bv Owner If (i) Owner fails to comply with, or is in material violation of, any term,
covenant, representation, warranty or condition of this Agreement, and Owner does not cure such
failure orviolation to the City's reasonable satisfaction within five (5) business days following written
notice provided by the City to Owner, then Owner will be in default under this Agreement, provded
that if such default is of a nature that it can not reasonably be cured within such five (5) day period,
then, in such event, Owner shall be afforded a reasonable opfXlrtunity to cure such default provided
Owner promptly commences cure.
(b) The City's Remedies for Owner's Default. If Owner is il default under this Agreement,
then at anytime following written notice to Owner, and withoti prejudice to any other rights or
remedies available to the City by law, in equity or pursuant to this Agreement, the City may either
(i) cure such faiure, violation or 91ent itself and recover the actual cost of such curative action
(including reasonable costs, attorneys and other expenses relating to such default orthe City's cure
thereof)from Owner andlorthe Escrow Funds, or (i~ terminate this Agreement and proceed directly
against Owner or the Cabana Club in accordance with Applicable Law. This obligation for payment
will survive termilation of this Agreement.
(c) Consent to Entry. At any time Owner is in default underthis Agreement, Owner hereby
consents to the entry upon the Cabana Club by the City, its agents and contractors for the purpose
of curing such default or completing the Work in accordance with this paragraph 6.
7. INDEMNIFICATION, The City will not be accountable in any mannerfor any violation of any
applicable laws or regulations, or for injury, death, loss or damage, arising from any cause out of
Owner's performance of this Agreement and prosecution of the Work. Owner agrees to indemnify,
and agree to defend and hold harmless the City from and against any and all liabilities, claims,
demands, loss, damages, costs and expenses, including, wlhout limitation, reasonable attomeys'
fees and costs (oollectively "ClainsU) asserted against the City (the extent the same are not-subject
to sovereign immunity) arising in camection with performance of this Agreement or prosecution
of the Work, whether before or after completion, by Owner, is contractors and com~onent
suppliers, material men, or its subcontractors, agents or employees, whether foreseeable or
unforeseeable, or direct or indirect, or caused or oontributed to by the active or passive, partial,
joint or concurrert, negligence of the City including, without imitation, Claims for death or injury b
any person or damage to any property or loss of use thereof. Provided, however, that th9
provisions of this paragraph 7 shal not apply to Claims arising from:
(a) the sole negligence or wilful misconduct of the Oty;
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R~-vi5ed May 2, 2002 {.~:20~1
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(b) legislative, governmental or judicial actions arising from the mere fact of the City's
acceptance or approval of the terms and conditions of this Agreement, the Plans, or the Letter
Agreement;
The provisions of this paragraph will survive the completion of the Work or other termination of this
Agreement, if any part of the foregoing indemnity is determined to be invalid or unenforceable by
a court of competent jurisdction, such determinatbn will not affect the validity or enforceability of
the remainder of the indemnity, and the parties agree that the indemnity will be deemed to be
amended to the extent necessary to make the remainder of the indemnity valid and enforceable.
8. DISBURSEMENT OF ESCROW FUNDS.
(a) Joint Written Direction. NotwithsBnding anything to the oontrary contained in this
Agreement, Escrow Agent shall disburse Escrcm Funds, at any time and from time to time, in
accordance with a Joint Written Direction. Escrow P(Jent shall be entitled to rely upon a request
for payment accompanied by the documents set forth in paragraph 4 above.
(b) Indemnity. Escrow Agent shall not be liable to either party except for claims resulting
from the gross negligence or wilful misconduct of Escrow Agent. If the escrow is invdved in any
controversy or litigation, the parties hereto shall jointly and severally ildemnify and hold Escrow
Agent free and harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys' fees to which Escrow Agent may be put or which may incur
by reason of or in connection with such oontroversy or litigation, except b the extent it is finally
determined that such controversy or litigation resulted from Escrow Agent's gross negligence or
willful misconduct. If the indemnity amounts payable hereunder result from the fault of the City or
Owner (or their respective agents), the party at fault shall P'lY, and hold the other party harmless
against, such amounts,
(c) Written Objection. If a written objection is filed within the tine allowed or if the Escrow
Agent is in doubt as to its duties, the Escrow Agent may continue to hold the Escrow Funds in
escrow until the matter is resolved either by Joint Written Direction from the parties or by the Circuit
Court having jurisdiction of the dispute or the Escrow Agent may interplead the same in the Circuit
Court and be relieved of any and all liability therefor. In any action or proceeding regarding the
Escrow Funds brought by Escrow Agent or to which Escrow Agent is made a party the Escrow
Agent shall be entitled to recover its reasonable costs and attorney's fees (through appeal).
(d) Continuing Counsel. Owner acknowledge that Escrow Agent is counsel to Owner
herein and the City agrees that in the event of a dispute hereunder or otherwise between Owner
and the City, Escrow ~ent may continue to represent Owner notwithstanding that it is acting and
will continue to act as EscrClN Agent hereunder, it being acknowledged by all parties that Escrow
Agent's duties hereunder are milisterial in nature.
(e) Resignation and Removal of Escrow Agent. Escrow Agent may resign from the
performance of its duties hereunder at any time by giving not less than 20 days' prior written notice
to both the City and Owner or may be removed, V\o1th or without cause, by the City aro Owner,
acting jointly by fumisling a Joint Written Direction to Escrow Agent, at any time by the giving of
10 days' prior written notice to Escrow Agent. Such resignation or removal shaU take effect upon
the appoir'ltment of a successor Escrow Agent as provided hereinbelcm or as otherwise agreed by
the City, Owner and Escrow Agent. Upon any such notice of resignation or removal, the City and
Dwner shall jointly appoint a successor Escrcm Agent hereunder. Upon tre acceptance in writing
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Revised May 2, 2002 (3:20~.)
5
of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor
Escrow Agent shall thereupon sua::eed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its
duties and obligations under this Agreement, but shall not be discharged from any liability for
actions taken as Escrow Agent hereunder prior to such succession. After any retiring Escrow
Agent's resignation or removal, the provisions of this Agreemert shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Escrow Agent under this ,A,greement.
(f) Termination. Upon the first to occur of the disbursement of all of the Escrow Funds or
the disbursement of all remainng Escrow Funds into court pursuant to the terms of this paragraph
8, Escrow Agent shall have no further obligation or liability whatsoever with respect to this
Agreement or the Escrow Funds.
9. MISCELLANEOUS PROVISIONS.
(a) Governinq Law, This Agreement is intended to be performed in the State of Florida and
shall be governed and construed in all respects in accordance with the laws of the State of Florida,
without regard to concepts of choice of law. Venue in any action arising under this Agreement shall
lie exclusively in the Circuit and Cwnty Courts of Pinellas County, Rorida.
(b) Successors and Assigns, The City and Owner, respectively, bind themselves, their
successors, assigns and legal representatives to the other party hereto and to the successors,
assigns and legal representatiws of such other party in respect to covenants, agreements and
obligations contained in this Agreement, the Letter Agreement and the Approved Plans. No party
to this Agreement will assign this Agreement as a whole without witten consent of the other. If any
party attempts to make such an assignment without such consent, that party will nevertheless
remain legaHy responsible for all obligations under this Agreement.
(c) All notices, requests, demands, and other communications which are required or
permitted to be given under this Agreement shall be in writing and shal be given to the party at its
address or facsimile number set forth beloN. Each notice shal be deemed to have been duly given
and received: (a) asofthe date and time the same are personally delivered with a receipted copy,
(b) if given by facsimile, when the facsimile is transmited to the party's facsimile number specified
below and confirmation of complete receipt is received by that transmlting party during normal
business hours or the next Busness Day if not confirmed during normal business hours with an
additional copy sent by any other method permitted hereunder; (c) if delivered by U. S. Mail, within
three (3) days after depositing with the United States Postal Service, postage prepaid by certified
mail, return receipt requested, or (d) if given by a nationally recognized or reputable overnight
delivery service within one (1) day after deposit with such delivery service.
If to the City
City Manager, William B. Horne, \I
City of Clearwater
112 South Osceola
Clearwater, Florida 33758
Facsimile (727) 562-4052
City Attorney, Pamela K. Akin, Esq.
City of Clearwater
112 South Osceola
Clearwater, Florida 33758
Facsimile (727) 562-4021
With a copy to:
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Revisej May 2. 2002 (3:2.0:,,1l'.)
6
If to Owner:
Mr. Salim A. Jetha
Belleview Biltmore Resort, Ltd.
2055 South Park Place
Atlanta, GA 30339
Facsimile: (928) 222 0687
Theresa Marie Kenney, Esq.
Ford, Jeter, Bowlus, Duss, Morgan, Kenney & Safer, PA
10110 San Jose Boulevard
Jacksonville. Florida 32257
Facsimile: (904) 262.3337
With a copy to:
and
Belleview Biltmore Resort, Ltd.
25 Belleview Boulevard
Attention: General Manager
Bellaire Beach, FL 33346
Facsimile (727) 447-0682
If to Escrow Agent: Theresa Marie Kenney, Esq.
Ford, Jeter, Bowlus, Duss, Morgan, Kenney & Safer, PA
10110 San Jose Boulevard
Jacksonville, Florida 32257
Facsimile: (904) 262.3337
or at such other address as the parties may specify from time to tine by written notice to the other
party .
(d) No Waiver, No action or failure to act by the City or O\M1er will constitute a
waiver of a right or duty afforded them under this ~reement, nor will such action or failure to act
constitute approval or acquiescence in a breach thereunder, except as may be specifically agreed
in writing,
(e) Remedies Cumulative. No remedy herein conferred upon or reserved to the
City or Owner will exclude any other remedy he rein or by law provided but each will be cumulative
and in addition to every other remedy given hereunder or now or hereafter existing at law, by
contract, in equity or by statute.
(f) No Partnershio or Joint Verture, Neither this Agreement or any actions
contemplated hereby will be construed to create a contractual relationship of any kind between
(i) the City and any contractor, compooent supplier, materiaman, or subcmtractor or (ii) any
persons or entities other than the City and Owner, and will not be construed to create a partnership
or joint venture between the City and Owner.
(g) No Third Party Beneficiary. Notwithstanding anything contained herein or
in the Letter Agreement, the Constructioo Contract or this Agreement to the contrary, Contractor
shall NOT be an intended third party beneficiary of this Agreement or the Letter Agreement, or the
Escrow Fund.
(h) EntireAgreement: Amendments. This Agreement represents the entire and
integrated agreement between the parties hereto and collectively supersede prior negotiations,
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Revi:3ed May 2. 2002 \3:20~]
7
representations or agreement, either written or oral. This Agreement may be amendedor modified
only in accordance wth the terms of this Agreement.
(i) Counterparts. This Agreement may be executed in multiple counterparts,
each of which wll constitute an original, but al of which taken togetherwill constitute one and the
same agreement
(j) Severabiity. If any part of any provision of this Agreement or any document
or instrument required or provided hereunder shall be invalid or unenforceable under applicable
law, said part shall be ineffective to the extent of sudl invalidity ooly, without in any way affecting
the remaining parts of said provisions of the remaining provisions of this Agreement.
(k) Due Negotiation. This Agreement has been drafted following due negotiation
by both parties and their respective representatives and fairly and accurately reflects the intent of
the parties with regard to the terms and conditions of this Agreement. Accordingly, both Owner and
the City agree that this ~reement shal not be construed for or against either party, but rather
solely on the plain meaning of the contents hereof. Each party has had or has been advised to
seek legal advice byan attorney of their own choice prior to the execution of th is Agreement. Each
party fully understands the facts aro has been informed fully as to their legal rights and obligations.
Each party is signing or has sgned this Agreement freely and volurtarily and with full knowledge
of the possble inplications hereof.
(I) Dates in the Aoreement Any date contained in this Agreement that falls on
a Saturday, Sunday orfederal holiday (customarily observed in Pinelas County, Florida) shall be
deemed to fall on the next succeeding business day,
IN WITNESS WHEREOF, The parties hereto have executed this Agreement as of the Effective
Date.
F CLEARWATER, FLORIDA
.~
Attest:
Cy
City
BELLEVIEW BILTMORE RESORT, LTD., a
[ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ Jorill Nome Florida limited partnership
[ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ .....Frilt Nome
F: \C:'IE~US\.JE.THA\C1\RAj]l.E'}>CRmi4 .___~rl
R8dge.i t"li1y 2. 2002 (~:20C;T)
By: Belleview Management, Inc., a Florida
corporation ~
By:
~Salim A. Jetha I
Its: President
8
'" ' . ..
Ma~ 02 02 04:15p
Ford, Jeter, Bowlus, Duss
9042623337
ACKNOWLEDQMENT
FORD, JETER, BOWLUS, Dua8. MORGAN, KeNNEY &8A"~R. P.A., 10110 San Jose Boulevard.
Jackson'lille, Florida 32257 acknowledges receipt of the sum of TWO HUNDRED FIFTY THREE
THOUSAND EIGHT HUNDRED FIFTY FOUR THIRTY SIX DOllARS AND 901100 ($253,854.90)
as the Escrow Funds (if paid by check, subject to clearance) and agrees to act as Escrow Agent
in accordance with the terms of the foregoing Agreement.
ACKNOWLEDGED this 2"" day of May, 2002.
F, \CLI'NTS\~ErHA \CAllANllUCIlOiI4 . "I'd
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