WEIL GOTSHAL & MANGES (2)
Atrium/Clearwater I
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ESCROW AGREEMENT
ESCROW AGREEMENT (the "Agreement"),dated as of the 29th day
of March, 1993, by and among MARIA REAL ESTATE INC., a Florida
corporation, havinq an office at 2502 Rocky Peint Road, Suite
695, Tampa, Florida 33607 (IISeller"), THE CITY OF CLEARWATER,
FLORIDA, a Florida municipal corporation, having an address at
112 S. Osceola Avenue, Clearwater, FL 34616 ("Purchaser") and
WEIL, GOTSHAL & MANGES, having an address at 701 Brickell Avenue,
suite 2100, Miami, Florida, 33131 ("Escrow Agent").
l'! I ~ M 1:; ~ s ~ ~ II:
WHEREAS, pursuant to a Sale-Purchase Agreement dated the
date hereof, Seller will convey to Purchaser certain real
property located at 601 Cleveland Street, Clearwater, Florida and
commonly known as the "Atrium at Clearwater Square" (the
"Premisesll); and
WHEREAS, the awning connecting the office building on the
Premises to the parking garage was damaged in a recent storm.
The "Damage" is more particularly described on Exhibit A hereto;
and
WHEREAS, seller has agreed to deposit certain funds into
escrow with Escrow Agent for the purpose of reimbursing Purchaser
for the cost of the repair of the Damage to the pre-storm
condition;
NOW, THEREFORE, in consideration of ten ($10.00) dollars and
the mutual oovenants and agreements hereinafter set forth, and
intending to be legally bound hereby, it is hereby agreed as
follows:
1. Deposit of Escrow Funds. Seller hereby directs that
$50,000 (the "Escrowed Funds") of the Purohase Price (as defined
in the Sale-Purchase Agreement) shall be deposited in escrow with
Escrow Agent pursuant to wire instructions provided by Escrow
Agent.
2. Investment of Escrowed Funds. Escrow Agent shall
deposit and maintain the Esorowed Funds in an interest bearing
money market account at citibank F.S.B., or such other financial
institution designated by the Escrow Agent, provided same is
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reasonably acceptable to Seller and Purchaser. Any interest
earned or received by the Escrow Agent on the Escrow Agent shall
be paid over to seller from time to time upon demand by Seller.
Seller shall be responsible for the payment of any income taxes
on such interest, if due under applicable law. Seller's tax
identification number is 13-3036326.
3. Disbursement of Escrowed Funds. The Escrowed Funds
shall be disbursed by Escrow Agent pursuant to the following
procedure:
(a) Purchaser shall be permitted to draw upon the
Escrowed FundS to either repair the Damage as constructed prior
to the storm or to use an amount equal to the cost of such repair
to replace the Damage in a manner acceptable to Purchaser.
(b) Purchaser shall submit to Seller the contracts or
contracts for the repair of the Damage (collectively, the
"Contracts") for Seller's approval thereof, which approval shall
not be unreasonably withheld or delayed.
(c) Upon approval of the Contracts, purchasor shall
cause the work to be performed pursuant thereto. Neither Escrow
Agent nor Seller shall have any obligation to inspect such work
or to cause such work to be performed.
(d) Upon completion of the work or at such other times
as is expressly set forth in the Contacts (but no more frequently
than once per month), Purchaser shall provide Seller with the
invoice for payment pursuant to the contracts together with a
certification by the Purchaser that the work for which the
payment is to be made has been completed. Provided the invoice
is in conformity with the Contracts, Seller shall direct Escrow
Agent in writing to disburse the amount of the invoice to or at
the direction of Purchaser.
4. Insurance Proceeds. Seller retains all right to any
insurance proceeds payable as a result of the Damage.
5. Return of Escrowed Funds to Seller. Upon the
completion of the repair of the Damage (as certified in writing
by Purchaser) any remaining Escrowed Funds shall be the property
of the Seller. In addition, in the event any Escrowed Funds
remain as of April 1, 1995, (a) Escrow Agent shall notify Seller
and Purchaser of such fact and, (b) unless instructed otherwise
by Purchaser within 30 days following receipt by Purchaser of
such notification, Escrow Agent shall deliver such funds to
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Seller. Seller shall have no obligation to deposit additional
funds in the event the Escrowed Funds are insufficient to repair
the Damage.
6. Obliqations of Escrow Aqent. If there is any dispute
as to whether Escrow Agent is obligated to deliver any monies
and/or documents which it now or hereafter holds (collectively,
the "Escrowed Property") or as to whom any Escrowed Property are
to be delivered, the Escrow Agent shall not be obligated to make
any delivery, but, in such event, shall hold same until receipt
by the Escrow Agent of an authorization, in writing, signed by
dll of the parties having an interest in such dispute directing
the disposition of same; or, in the absence of such
authorization, the Escrow Aqent shall hold any Escrowed Property
until the final determination of the rights of the parties in an
appropriate proceeding. within three business days after receipt
by the Escrow Agent of (i) a copy of a final judgment or order of
a court of competent jurisdiction, certified by the clerk of such
court or other appropriate official, and (ii) an opinion of
counsel, acceptable to the Escrow Agent, of the party to whom the
Escrowed Property is to be delivered to the effect that such
judgment or order is final within the meaning of this Agreement,
the Escrowed Property shall be delivered as set forth in such
judgment or order. A judgment or order under this Agreement
shall not be deemed to be final until the time within which to
take an appeal therefrom has expired and no appeal has been
taken, or until the entry of a judgment or order from which no
appeal may be taken. If such written authorization is not given
or proceeding for such determination is not begun and diligently
continued, the Escrow Agent may, but is not required to, bring an
appropriate action or proceeding for leave to deposit the
Escrowed Property in court, pending such determination. The
Escrow Agent shall not be responsible for any acts or omissions
unless willfully done and upon making delivery of the Escrowed
Property which the Escrow Agent bolds in accordance with the
terms of this Agreement, the Escrow Agent shall have absolutely
no further liability hereunder. The Escrow Agent shall have no
liability for any loss resulting from financial or other failure
of the financial institution into which the Escrowed Property is
deposited. In the event that the Escrow Agent places any
Escrowed Property and/or documents that have actually been
delivered to the Escrow Agent in the Registry of the Circuit
Court in and for Pinellas County, Florida and files an action of
interpleader, naming the parties bereto, the Escrow Agent shall
be released and relieved from any and all further obligation and
liability hereunder or in connection herewith. The Escrow Agent
shall be entitled to rely upon, and shall be fully protected from
all liability, loss, cost, damage or expense in acting or
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omitting to act pursuant to, any instruction, order, jUdgment,
certification, affidavit, demand, notice, opinion, instrument or
other writing delivered to it hereunder without being required to
determine the authenticity of such document, the correctness of
any fact stated therein, the propriety of the service thereof or
the capacity, identity or authority of any party purporting to
sign or deliver such document. Seller and Purchaser shall and do
hereby, jointly and severally, agree to indemnify and hold the
Escrow Agent harmless from any and all damages or losses arising
hereunder or in connection herewith, including but not limited
to, all costs and expenses incurred by the Escrow Agent in
connection with the filing of such action including, but not
limited to, reasonable attorneys' fees for the Escrow Agent's
attorneys through all trial and appellate levels (which may
include fees and costs of legal services provided by attorneys in
the firm of Weil, Gotshal & Manges). It is agreed that Escrow
Agent shall not be disabled or disqualified from representing
Seller in connection with any litigation which might ari.se out of
or in connection with this Agreement by virtue of the fact that
the Escrow Agent has agreed to act as the Escrow Agent hereunder
and Purchaser does hereby waive any claim arising out of or in
connection with the foregoing except for claims of gross
negligence or willful misconduct. The duties of the Escrow Agent
are only as herein specifically provided, and are purely
ministerial in nature. The Escrow Agent shall neither be
responsible for, or under, nor chargeable with knowledge of, the
terms and conditions of any other agreements, instrument or
document in connection herewith, and shall be required to act in
respect of the Escrowed property only as provided in this
Agreement. This Agreement sets forth all the obligations of
Escrow Agent with respect to any and all matters pertinent to the
escrow contemplated hereunder and no additional obligations of
Escrow Agent shall be implied from the terms of this Agreement or
any other Agreement. The Escrow Agent shall not be bound by any
modification, cancellation or rescission of this Agreement unless
in writing and signed by the Escrow Agent. The Esorow Agent and
any successor escrow agent may at any time resign as such by
delivering the Escrowed Property to either (i) any successor
escrow agent designated by all the parties hereto (other than
Escrow Agent) in writing, or (ii) any court having competent
jurisdiction. Upon its resignation and delivery of the Escrowed
Property as set forth in this section, the Escrow Agent shall be
discharged of, and from, any and all further obligations arising
in connection with the escrow contemplated by this Agreement.
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7. Miscellaneous.
(a) This Agreement shall not be altered, amended.
changed, waived, terminated or otherwise modified in any respect
or particular unless ~he same shall be in writing and signed by
or on behalf of the party to be charged.
(b) This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to their
respective heirs, executors, administrators, successors and
assigns.
(c) All prior statements, understandings,
representations and agreements between the parties with respect
to the Damage, oral or written, are superseded by and merged in
this Agreement, which alone fully and completely expresses the
agreement between them in connection with this transaction and
which is entered into after full investigation, neither party
relying upon any statement, understanding, representation or
agreement made by the other not embodied in this Agreement. This
Agreement shall be given a fair and reasonable construction in
accordance with the intentions of the parties hereto, and without
regard to or aid of canons requiring construction against Seller
or the party drafting this Agreement.
(d) Purchaser agrees that it does not have and will
not have any claims or causes of action against any disclosed or
undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other affiliate of
Seller, including, without limitation, Citicorp, citibank, M.A.,
Citicorp Real Estate, Inc. or Aspiration, Inc., (collectively,
IISeller's Affiliates") arising out of or in connection with this
Agreement or the transactions contemplated hereby. purchaser
agrees to look solely to Seller and its assets for the
satisfaction of any liability or obligation arising under this
Agreement or the transactions contemplated hereby, or for the
performance of any of the covenants, warranties or other
agreements contained herein, and further agrees not to sue or
otherwise seek to enforce any personal obligation against any of
sellerls Affiliates with respect to any matters arising out of or
in connection with this Agreement or the transactions
contemplated hereby. Without limiting the generality of the
foregoing provisions of this section, Purchaser hereby
unconditionally and irrevocably ~aives any and all claims and
causes of action of any nature whatsoever it may now or hereafter
have against Sellerls Affiliates, and hereby unconditionally and
irrevocably releases and discharges Seller's Affiliates from any
and all liability whatsoever which may now or hereafter accrue in
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favor of Purchaser against Seller's Affiliates, in connection
with or arising out of this Agreement or the transactions
contemplated hereby.
(e) No failure or delay of either party in the
exercise of any right given to such party hereunder or the waiver
by any party of any condition hereunder for its benefit (unless
the time specified herein for exercise of such right has expired)
shall constitute a waiver of any other or further right nor shall
any single or partial exercise of any right preclude other or
further exercise thereof or any other right. No waiver by either
party of any breach hereunder or failure or refusal by the other
party to comply with its obligations shall be deemed a waiver of
any other or subsequent breach, failure or refusal to so comply.
(f) This Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be
deemed an original, but all of which taken together shall
constitute but one and the same instrument~
(g) The caption headings in this Agreement are for
convenience only and nre not intended to be a part of this
Agreement and shall not be construed to modify, explain or alter
any of the terms, covenants or conditions herein contained.
(h) This Agreement, having been drawn and negotiated
in tho state of Florida, shall be interpreted and enforced in
accordance with the laws of the state of Florida, and Seller and
Purchaser hereby agree to submit to personal jurisdiction in the
state of Florida in any action or proceeding arising out of this
Agreement. Seller and Purchaser agree that any such action or
proceeding shall be brought in any federal, state or local court,
as the case may be, located in the county of Pinellas and state
of Florida.
(i) In the event of any litigation ar1s1ng out of or
connected in any manner with this Agreement, the non-prevailing
party shall pay the costs of the prevailing party, including its
reasonable counsel and paralegal fees incurred in connection
therewith through and including all other legal expenses and the
costs of any appeals and appellate costs relating thereto.
(j) The use of any gender shall include all other
genders. The singular shall include the plural and vice versa.
(k) All of the Exhibits and Schedules annexed hereto
are incorporated herein by reference and form part of this
Agreement.
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(1) Use of the words !therein, II "hereof," I'hereunder"
and any other words of similar import refer to this Agreement as
a whole and not to any particular article, section or other
paragraph of this Agreement unless specifically noted otherwise
in this Agreement.
(m) This Agreement shall not be deemed to confer in
favor of any third parties any riqh~s whatsoever as third-party
beneficiaries, the parties hereto intending by the provisions
hereof to confer no such benefits or status.
(n) THE PARTIES HERETO DO HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY RIGHT ANY
PARTY MAY HAVE TO A JURY TRIAL IN EVERY JURISDICTION IN ANY
ACTION, PROCE~DING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER OR THEIR RESPECTIVE SUCCESSORS
OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND
DELIVERED BY EITHER PARTY IN CONNECTION THEREWITH (INCLUDING,
WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS
AGREEMENT, AND ANY cLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY
TO ENTER INTO THIS AGREEMENT.
(0) If any provision of this Agreement shall be
unenforceable or invalid, the same shall not affect the remaining
provisions of this Agreement and to this end the provisions of
this Agreement are intended to be and shall be severable.
(p) Typewritten or handwritten provisions inserted in
this Agreement or in the Exhibits annexed hereto (and initialled
by the parties) shall control all printed provisions in conflict
therewith.
(q) Each party hereto acknowledges that all parties
hereto have participated equally in the drafting of this
Agreement and that accordingly no court construing this Agreement
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shall construe it more stringently against one party than the
other.
IN WITNESS WIIEREOF, this Agreement has becn duly executed by
the parties hereto as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
SELLRR:
MARIA REAL ESTATE, INC., a
Florida corporation
~ -:?/~
. McCarthy
Title: Vice President
Name~rC).~n:;e
Address: 2502 Rocky Point Rd.
suite 695
Tampa, Florida 33607
PURCHASER:
THE CITY OF CLEARWATER, a
Florida municipal corporation
ttZe
Address: 112 S. Osceola Ave.
Clearwater, FL 34616
Print
By:
Pr~nt Name:
Title:
112 S. Osceola Ave.
Clearwater, FL 34616
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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COUNTERSIGNED:
ATTE_ST:.-' -
- -'
.-
i a Garvey
Mayor-Commissione
APPROVED AS TO FORM:
M.A. Galbrai
city Attorne
March 29, 1993
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Print Name:
Print Name:
Name:
~/k
. P@~ t2,.dd,,-,
print Name: J?0U,e.., D. At?6e
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By:
print Name:
Title:
Address:
o eola Ave.
er, FL 34616
By:
Pr~nt
Title:
112 S. Osceola Ave.
Clearwater, FL 34616
ESCROW AGENT:
WElL, GOTSHAL & MANGES
B . ? W~
pr int Name: ~bAAet 6-. OIttf.ftJ\\..
Title: t2aa...0~
Address: 701 Brickell Avenue
Miami, FL 33131
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Exhibit A
Description of the Damage
~xterior
Walkway bridge collapsed and had been severely "twisted" by the
high winds. Much of the bridge steel was laying on road,
sidewalk, and ground area. Extensive structural damage to the
steel framing, and the base supports have uprooted from the
concrete slab floor of the walkway itself (see details in
photos) .
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