ESCROW AGREEMENTESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into this day of
0"4w, 2010, by and among the CITY OF CLEARWATER, a municipal subdivision of the State
of Florida (the "City"), HARRIS CORPORATION, acting through its RF Communications
Division ("Harris") and SHULMAN ROGERS GANDAL PORDY & ECKER, P.A. ("Escrow
Agent").
WITNESSETH:
WHEREAS, the City and Nextel South Corp. ("Nextel") entered into a Frequency
Reconfiguration Agreement dated October 24, 2007 (the "FRA"); and
WHEREAS, a dispute arose between the City and Nextel with respect to the City's
obligation to return certain equipment to Nextel (the "Dispute"); and
WHEREAS, the City, Nextel and Harris have agreed to resolve the Dispute, which
resolution has been memorialized by two separate letter agreements executed contemporaneously
with the execution of this Agreement, one between the City and Nextel (the "Nextel Letter
Agreement") and the second between the City and Harris (the "Harris Letter Agreement" and
together with the Nextel Letter Agreement, the "Settlement"), copies of which are attached hereto as
Exhibits A and B respectively; and
WHEREAS, pursuant to the Settlement, the City is required to place in escrow the sum of
One Hundred Thousand Dollars ($100,000.00) (the "Escrow Fund"); and
WHEREAS, the parties hereto, by the execution and delivery of these presents, desire to set
forth the terms of this Escrow Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. The above stated recitals are incorporated herein by reference as if restated in full.
2. Within five (5) calendar days from the date of this Agreement, the City shall deliver
the Escrow Fund to the Escrow Agent to be held in escrow in accordance with the terms and
provisions hereinbelow. The failure of the City to deliver the Escrow Fund to the Escrow Agent
shall render this Agreement null and void and of no further force and effect.
3. The Escrow Agent shall hold the Escrow Fund in a non-interest bearing account.
Upon receipt by the Escrow Agent of written notice from the City that Nextel, pursuant to the
Settlement, has received and fully accepted the Resolution Radios (as defined in the Harris Letter
Agreement), the Escrow Agent shall disburse the Escrow Fund to Harris, whereupon the Escrow
Agent shall be relieved of any further obligations hereunder.
4. If the conditions stated in Section 3 above are not fully satisfied within sixty (60) days
from the latter of (i) City Council approval of this Agreement or (ii) the execution by all parties to
this Agreement, then and in such event, this Agreement shall automatically terminate, unless the
parties agree in writing to extend the term of this Agreement for a reasonable period of time. In the
event this Agreement is terminated for any reason other than the satisfaction of the conditions stated
in Section 3 above, the Escrow Agent shall disburse the Escrow Fund to the City, whereupon the
Escrow Agent shall be relieved of any further obligations hereunder.
5. The Escrow Agent shall have the right to resign at any time by giving written notice
of such resignation to the City and Harris. The City and Harris shall have ten (10) days to appoint a
substitute Escrow Agent. The acceptance of the appointment of the substitute Escrow Agent shall be
effectuated by written notice thereof to the City, Harris and the resigning Escrow Agent. The
resigning Escrow Agent shall cooperate with respect to effectuating any substitution of the Escrow
Agent. In the event the City and Harris are unable to agree to a substitute Escrow Agent within said
ten (10) day period, then the resigning Escrow Agent herein shall have the right to deposit the
Escrow Fund into the registry of any court of record situated in the State of Maryland pursuant to the
provisions of paragraph 11 hereinbelow, whereupon the Escrow Agent shall be relieved of any
further obligations hereunder.
6. The Escrow Agent shall be under no obligation or duty whatsoever as to the Escrow
Fund, except the duty to hold and administer the Escrow Fund in strict accordance with the
provisions of this Agreement.
7. The Escrow Agent shall be protected in acting upon any written notice, statement,
certificate, waiver, consent or other instrument or document which the Escrow Agent believes to be
genuine.
8. The Escrow Agent shall not be liable for any error of judgment or any act done or not
taken or omitted in good faith, or for anything which the Escrow Agent may do or refrain from doing
in connection with this Agreement, except the Escrow Agent shall be liable for its own willful
misconduct.
9. The Escrow Agent may consult with and obtain advice from legal counsel in the event
of any dispute or question as to the construction of any of the provisions herein, or the Escrow
Agent's duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected in
acting in accordance with the opinion of such counsel.
10. The parties hereto each agree jointly and severally to indemnify and hold harmless the
Escrow Agent from and against any and all loss, damage or liability which might be incurred in
connection with this Agreement, except only such loss, damage or liability incurred by reason of the
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willful misconduct or gross negligence of the Escrow Agent. The Escrow Agent shall have the right
to reimbursement out of the Escrow Fund with respect to any loss, damage or liability so incurred by
it and with respect to which the Escrow Agent is entitled to indemnity hereunder, in addition to any
and all rights or remedies otherwise available to the Escrow Agent.
11. In the event that a dispute arises between the City and Harris with respect to this
Agreement, including, without limitation, with respect to the disbursement of the Escrow Fund, then
and in such event, the Escrow Agent shall have the right to deposit the Escrow Fund into the registry
of any court of record situated in the State of Maryland, whereupon, the Escrow Agent shall be
relieved of any further obligations hereunder. Any costs or expenses incurred by the Escrow Agent,
including reasonable attorneys' fees and court costs, in connection with the deposit of the Escrow
Fund into the registry of any court of record situated in the State of Maryland, shall be the
responsibility of and be paid by the City and Harris, jointly and severally, and the Escrow Agent shall
have the right to reimbursement out of the Escrow Fund in addition to any other and all other rights
and remedies otherwise available to the Escrow Agent.
12. The duties of the Escrow Agent hereunder are entirely administrative and not
discretionary. Escrow Agent is obligated to act only in accordance with the instructions provided in
this Agreement or the joint written instructions of the City and Harris and is authorized hereby to
comply with any orders, judgments or decrees of any court or arbitrator and shall not incur any
liability as the result of its compliance with such instructions, orders, judgments or decrees.
13. The parties hereto acknowledge and recognize that the firm of Shulman, Rogers,
Gandal, Pordy & Ecker,.P.A. represents the City with respect to the transactions contemplated under
the FRA and the Settlement and will continue to have the authority to represent the City with respect
to such transactions notwithstanding its capacity as Escrow Agent hereunder.
14. Any and all notices required or permitted to be given hereunder shall be in writing
and shall be sent by certified mail return receipt requested, postage prepaid, or via a nationally
recognized overnight delivery service which provides a receipt for delivery, in either event addressed
as follows:
If to City: City of Clearwater
112 S. Osceola Avenue
Clearwater, FL 33756-5103
Attention: Laura Mahony
With a copy to: Alan S. Tilles, Esquire
Jeffrey W. Rubin, Esquire
Shulman Rogers Gandal Pordy & Ecker, P.A.
12505 Park Potomac Avenue, Sixth Floor
Potomac, MD 20854
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If to Harris: Harris Corporation
7022 TPC Drive
Suite 500
Orlando, Florida 32822
Attn: Danielle Marcella
With a copy to: Harris Corporation
221 Jefferson Ridge Parkway
Lynchburg, VA 24501
Attn: Legal Department
If to Escrow Agent: Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
12505 Park Potomac Avenue, Sixth Floor
Potomac, MD 20854
Attention: Alan S. Tilles, Esquire
Jeffrey W. Rubin, Esquire
Any party hereto shall have the right to change its respective address for notices by written notice to
that effect.
15. This Agreement contains the entire understanding between the parties with respect to
the subject matter hereof and there are no promises, agreements, understandings, representations or
warranties between the parties hereto with respect to the subject matter hereof other than those
expressly set forth herein.
. 16. This Agreement may not be modified, amended or waived orally but only by a
document in writing signed by the party or parties against whom enforcement of any such
modification, amendment or waiver is sought.
17. This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, personal representatives, successors and assigns.
18. This Agreement shall be construed and enforced in accordance with the laws of the
State of Maryland, excluding the conflict of law provisions thereof.
19. This Agreement may be executed in one or more counterparts each of which shall be
deemed an original against any party whose signature appears herein, and all of which together shall
constitute one and the same instrument binding upon all of the parties, notwithstanding that all
parties are not signatories to the same counterpart. Facsimile and/or electronic signatures shall be
deemed to constitute original signatures.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of
the day and year first above written.
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Frank V. Hibbard i ham B. Horne II
Mayor
Approved as to form:
Laura Mahony
Assistant City Attorney
STATE OF FLORIDA )
COUNTY OF PINELLAS )
City Manager
Attest:.
Rosemarie Call
City Clerk
THE ZL?
tsl? ?
Toing instrument was acknowledged before me this 9 day of
/D , by FRANK V. HIBBARD, Mayor of the City of Clearwater, who is
personally known to me.
Print/Type Name: DJ??/9G cfc- / % e o7 4,'
Notary Public
STATE OF FLORIDA )
COUNTY OF PINELLAS )
MANN' MY QOMMIS31019 # DD952018
(EXPIRES March 06, 2014
*0'8..01,,
(FloddeNOte Barviy®,cOm
The foregoing instrument was acknowledged before me this day of
e rrlde , 20 10 ', by WILLIAM B. HORNE 11, City Manager of the City of Clearwater,
who is p xsonally known to me.
P
Print/Type Name: SQLnQ rV--- SANDRA HARRIGER.
my coor+?uss>o? # ID)IM3 91
Notary Public EXPIRM JXKWY 01, Zd12,
Fl. NUUy D?. MD"*
F-^ TARY
M
HARRIS:
ATTEST/WITNESS: HARRIS CORPORATION,
acting through its RF Communications
Division
By: C
Charles Shaughn ssy
Vice President - LMR Products
October -?V- 2010
The undersigned agrees to serve as Escrow Agent hereunder in accordance with the foregoing
terms and provisions.
SHULMAN, ROGERS, GANDAL,
PORDY & ECKER, P.A.
By:
Name: /-r4 rld
Title:
Date:
NALegalTitigation - ConflictsUearwater, FUClearwater harris Escrow Agreement.Clean.LLM.10.14.10.doc
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