ESCROW AGREEMENTEscrow Agreement
F�,bYuar�
This Escrow Agreement effective this �-"'D day of 7au�y, 2012, by and between K
& P Clearwater Estate, LLC ("Developer"), City of Clearwater, Florida ("City") and
Macfarlane, Ferguson & McMullen, P.A. ("Escrow Agent"), which has an address of 625
Court Street, Suite 200, Clearwater, Florida 33756.
Recitals
A. City and Developer have entered into the First Amendment to the the first Amended and
Restated Development Agreement dated (the "AgreemenY').
B. Under the terms of the Agreement, the Escrow Agent is to hold the Earnest Money (as
defined therein), subject to the terms of this Escrow Agreement.
C. Unless otherwise defined herein, capitalized terms used in this Escrow Agreement shall
have the meanings assigned to them in the Agreement.
A�reement
NOW, THEREFORE, in consideration of the Recitals, the parties agree as follows:
1. Appointment of Escrow A�ent. Developer and City hereby appoint Escrow Agent as
escrow agent to hold and disburse the Extension Deposits paid by Developer pursuant to the
Agreement and said Escrow Agent agrees to serve in such capacity in accordance with the terms
hereof and the terms of the Agreement. Developer and City agree to the delivery of the
Extension Deposits to Escrow Agent to be held by it pursuant to the terms hereof.
2. Escrow Account. To induce Escrow Agent to accept and hold in escrow the extension
deposits described in the Agreement, the parties do hereby authorize Escrow Agent to deposit
same in an interest bearing account pursuant to the terms of this Escrow Agreement. By their
execution and delivery of this Escrow Agreement, the parties acknowledge and confirm that
under certain circumstances deposits (including the funds subject to this Escrow Agreement)
may not be insured or fully insured by the Federal Deposit Insurance Corporation ("FDIC").
Each party has made its own analysis of FDIC insurance regulations affecting, or potentially
affecting, the funds subject to this Escrow Agreement and is not relying upon any advice from
the Escrow Agent. Escrow Agent is specifically authorized to enter into an Investment
Management Agreement with BNY Mellon Wealth Management for the investment of the
escrow funds. .Escrow Agent shall provide monthly statements for such account and shall
provide the statements to Developer and City. Developer shall restore any losses incurred by the
escrow account on account of fluctuations in the value of permitted investments thereof within
30 days of the date of any statement evidencing any such reduction in the balance of such
account below the minimum principal balance required as of such date. Escrow Agent shall
notify city upon receipt of such deposits.
3. Release of Earnest Monev. The Earnest Money shall be released from escrow and
disbursed by Escrow Agent ONLY in accordance with one of the following circumstances:
(a) Escrow Agent will disburse the Escrowed Money to the Developer upon the
written consent of both Developer and City delivered to Escrow Agent; or
Escrow Agreement
Macfarlane, Ferguson & McMullen,
K& P Clearwater Estate and
City of Clearwater
(b) Escrow Agent will disburse the Escrowed Money to the City upon the written
consent of both Developer and City delivered to Escrow Agent; or
(c) If either Developer or City elects to assert its rights with respect to the entitlement
to all or a portion of the Escrowed Money, then the parties shall follow the following procedure:
(1) The party claiming the right to receive the Escrowed Money (the "First
Party") shall deliver a notarized affidavit to the Escrow Agent stating that
it is entitled to the receipt of the Escrowed Money and stating the reasons
supporting its claim.
(2) Upon its receipt of the above affidavit, the Escrow Agent shall deliver to
the other party(ies) (whether one or more, collectively the "Second Party")
a copy of such affidavit together with Escrow Agent's letter or other
written notice stating that if the Second Party doesn't object to the First
Party's suggested disbursement of the Escrowed Money within ten (10)
days of the Second Party's receipt of the affidavit and Escrow Agent's
letter, then the Escrow Agent will disburse the Escrowed Money in
accordance with terms of such affidavit.
(3) If the Second Party fails to object in writing to Escrow Agent to the
affidavit's suggested disbursement within such ten (10) day period, then
the Escrow Agent is hereby authorized by the parties to this Agreement to
and will deliver the Escrowed Money in accordance with the terms of such
affidavit.
(4) If the Second Party delivers to the Escrow Agent a written objection to the
affidavit's suggested disbursement within such ten (10) day period, then
the Escrow Agent shall give written notice to all parties that it has
received conflicting claims with respect to the disposition of the Escrowed
Money. At any time thereafter, Escrow Agent will disburse the Escrowed
Money only in accordance with paragraphs 3(a) or 3(b) above or 3(d)
below; or
(d) Escrow Agent shall disburse the Earnest Money in accordance with the order(s) of
any court, whether in an Interpleader or other action.
(e) All interest paid to Escrow Agent as the result of the investment of the Escrowed
Money shall be paid to Developer by Escrow Agent annually without notice to City. No such
disbursements shall be made if disbursement would result in the reduction of the balance of such
account below the minimum principal balance required as of such date.
4. Limit on Escrow Agent's Duties. Escrow Agent undertakes and agrees to perform only
such duties as expressly set forth herein. The duty of the Escrow Agent hereunder shall be
limited to the safekeeping of the Escrowed Money and the disposition of same in accordance
with the provisions of this Agreement. Except to the extent provided to the contrary in this
2
Escrow Agreement
Macfazlane, Ferguson & McMullen,
K& P Clearwater Estate and
City of Cleazwater
Agreement, the Escrow Agent shall have the right, but not the obligation, to require written
instruments signed by all parties to this Agreement confirming its authority to act in a proposed
manner.
5. Indemnification of Escrow Agent. The undersigned hereby release Escrow Agent from
any losses incurred with respect to funds deposited hereunder by reason of the absence of or
insufficiency of FDIC insurance with respect to such funds. The undersigned acknowledge that
Escrow Agent has entered into this Agreement at their specific request and, in order to induce
Escrow Agent to accept said escrow, do hereby agree to indemnify and hold Escrow Agent
harmless from all loss, cost and expense, including reasonable attorneys' fees and court costs,
which it may suffer or incur as a result of acting as Escrow Agent under this Agreement,
including, without limitation, claims arising with respect to the absence or insufficiency of FDIC
insurance for funds subject to this Escrow Agreement. In the event of any dispute as to the
disbursement of escrow funds or any claim thereto by any party or person, Escrow Agent shall
have the right to bring a suit in interpleader in any court of competent jurisdication naming the
parties to this Agreement and any other parties as may be appropriate in the opinion of Escrow
Agent. The undersigned shall indemnify and hold harmless Escrow Agent from all costs,
including attorneys' fees, in connection with such interpleader action. Upon the filing of said
suit and deposit of the balance of escrow funds in the registry of the Court, Escrow Agent shall
have the right to withdraw from said suit, and all obligations of Escrow Agent shall cease and
terminate.
6. Notices•
(a) Any notice or demand given or required by any party hereunder shall be in
writing and shall be sufficiently given or served by being deposited, postage prepaid, in a United
State Post Office depository, sent by registered mail or certified mail, return receipt requested, or
by hand delivery to the addresses stated on the signature pages hereof. Simultaneous with any
notice or demand or written instruction by Developer or City, such party shall send a copy to the
other party and to Escrow Agent by fax and email at the f� number and email addresses set
forth below, but the giving of fax and/or email notices shall NOT substitute for giving the notice
by certified mail, return receipt requested or hand delivery.
(b) Escrow Agent may act upon any written notice, request, waiver, certificate,
receipt, authorization, power of attorney or other instrument or document which complies with
the terms hereof and which Escrow Agent in good faith believes to be genuine and to be what it
purports to be.
7. Controllin� Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida.
8. Continuing Reuresentation. City acknowledges that Escrow Agent is counsel to
Developer herein, and City agrees that in the event of a dispute hereunder or otherwise between
City and Developer, Escrow Agent may continue to represent Developer notwithstanding that it
is acting and will continue to act as Escrow Agent hereunder, it being acknowledged by all
parties that Escrow Agent's duties hereunder are ministerial in nature.
K3
Escrow Agreement
Macfarlane, Ferguson & McMullen,
K& P Clearwater Estate and
City of Clearwater
9. Litigation Costs. In connection with any litigation arising out of this Agreement, the
prevailing party therein shall be entitled to recover from the non-prevailing party all costs
incurred in connection therewith including, without limitation, all attorneys' fees, paralegals'
fees and court costs, whether incurred at bankruptcy, administrative, trial and/or appellate levels
or proceedings.
Agreed to and acknowledged this �_ day of�e.,/,i,��r.Qy�, , 2012.
DEVELOPER
K& P Clearwater Estate, LLC, a Florida
limited liability company
By: K& P Partners Limited
Manager r
By: K& 1 , L-, ei
By:
Name: . Patel, M.D.
Title: a
56 ariner, Suite 200
Tampa, Florida 33609
813-506-6000
ESCROW
By: �.v ``
Name• Paul ]
Title: Attorney
partner
& McMullen, P.A.
625 Court Street, Suite 200
Clearwater, Florida 33756
Telephone: 727-441-8966
Fax# 72 -442-8470
Date: � _, 2012
Countersigned:
CITY OF CLEARWATER, FLORIDA
r 'C//
�c-Q-� � By: � % ? r1.r , 'i_- �-t-
Frank V. Hibbard illiam B. Horne II
Mayor
Approved as to rm:
� l�
Pamela K. Akin
City Attorney
Attest:
City Manager
Rosemarie Call
City Clerk