HomeMy WebLinkAbout2011-257 13 / 1
SECOND AMENDMENT TO ESCROW AGREEMENT 13 0 G .
4 i - 1,
THIS AGREEMENT is entered into as of the �,� day of December 2011 , by and
among SHADOWBROOK ESTATES , INC . , a Florida corporation (" Seller") , INDIAN RIVER
COUNTY, a political subdivision of the State of Florida ("Buyer") , and COLLINS , BROWN,
CALDWELL, BARKETT & GARAVAGLIA , CHARTERED ("Escrow Agent") ,
WHEREAS , as of January 30, 2007 , Seller, Buyer and Escrow Agent executed that
certain Escrow Agreement ( "Escrow Agreement") , pursuant to which Seller deposited funds with
Escrow Agent to be used to secure environmental clean-up of certain soil and groundwater
impacts to property described in the Escrow Agreement ; and
WHEREAS , on or about July 21 , 2009 , the parties extended the term of the Escrow
Agreement for a period of two (2) years, to July 21 , 2011 ("First Amendment") ; and
WHEREAS , Seller and Buyer are involved in a dispute relating to rights and remedies
arising out of the Escrow Agreement, which dispute resulted in the filing of a civil action styled
Shadowbrook Estates, Inc. v. Indian River County and Collins, Brown, Caldwell, Barkett &
Garavaglia, Chartered, Case Number 312011CA002521 , pending in the Circuit Court of the
Nineteenth Judicial Circuit, in and for Indian River County, Florida ("Lawsuit") ; and
WHEREAS , Seller and Buyer have resolved their dispute as set forth herein, and desire
to resolve and conclude all matters relating to the Escrow Agreement, the First Amendment and
the Lawsuit .
NOW, THEREFORE , in consideration of the mutual undertakings set forth herein and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree , as follows :
1 . Recitals. The above recitals are true and correct, and are incorporated herein .
2 . Definitions . Unless otherwise stated , all terms utilized in this Agreement which
are defined in the Escrow Agreement shall have the same meaning as set forth in the Escrow
Agreement.
3 . Disbursement of Escrow Funds . Within ten ( 10) days of execution of this
Agreement by all parties , Escrow Agent shall disburse all remaining Escrow Funds as follows :
(a) One Hundred Thousand Dollars ($ 100 , 000) shall be disbursed to Buyer, and (b) all remaining
funds, including interest, shall be disbursed to Seller. Escrow Agent shall "disburse" the
remaining Escrow Funds by making the Disbursement Checks available for pick up at Escrow
Agent ' s business office , and notifying Seller and Buyer of such fact by email to Seller
at
pierre214@aol . com and to Buyer at apolackwich@ircgov . com . Seller and Buyer shall pick up
their respective Disbursement Check promptly after such notice , and , if requested by Escrow
Agent, shall sign a written receipt acknowledging receipt of such check .
Page I of 3
4. Irrevocable Instructions to the Escrow Agent . Paragraph 3 above shall be
deemed to constitute irrevocable instructions by Seller and Buyer to Escrow Agent to disburse
the Escrow Funds as set forth in such paragraph .
5 . Environmental Documents . Within ten ( 10 ) days of execution of this
Agreement by all parties, Seller shall deliver to Buyer, or cause to be delivered to Buyer
by
Seller ' s consultant , without warranty of accuracy, at the office of the County Attorney at 1801
27`x' Avenue, Vero Beach, Florida, paper or electronic copies on a computer disc (at Seller' s
option) of the following documents relating to remediation efforts undertaken by Seller ' s
consultant prior to the date of this second amendment : elevation surveys for all on site and off
site monitoring wells , any potable and irrigation well surveys (within 1 /4 anile radius of the
property), any statistical analysis of the sampling data, and any summaries or minutes of
meetings or conference calls with DEP .
6. Dismissal of Lawsuit. Within ten ( 10) days of completion of the obligations set
forth in paragraphs 3 and 5 above , and clearance of the Disbursement Checks, Seller shall
dismiss the Lawsuit with prejudice, each party to bear its own attorney ' s fees , costs , and
expenses .
7 . Release. Each party ( Seller, Buyer and Escrow Agent) hereby releases, satisfies,
discharges and acquits each of the other parties from all claims , causes of action, damages ,
expenses or other liabilities of any type whatsoever, arising out of or relating to the Escrow
Agreement, First Amendment or the Lawsuit (" Settled Matters") . It is the intent of the parties
that this release shall extend fully to all matters relating to the Settled Matters , and neither party
shall hereafter have any rights or owe any obligations to any other party by reason of the Settled
Matters .
8 . Termination of Escrow Agreement. The Escrow Agreement, including the First
Amendment, are hereby terminated and of no further force or effect.
9. Effective Date. This Agreement shall become effective on the date that it is
signed by all parties , except that paragraphs 7 and 8 above shall become effective upon
completion of all matters set forth in paragraphs 3 , 5 and 6 above .
10. Counterparts . This Agreement may be executed in counterparts , and the
counterparts together shall constitute the agreement of the parties .
Page 2 of 3
Signature Page of Second Amendment of Escrow Agreement
SELLER : BUYER:
SHADOWBROOK ESTATES , INC . , a BOARD OF COUNTY COMMISSIONERS ,
Florida corporation INDIAN RIVER COUNTY, a political sub &
vision of the State of Florida
By : 'O - By :
- Aoi,�V
Printed Name: o? �r*c2rT m —Lf Gary C . ?Keeler, Chairman
Title : s,2 . rs i r :V-/A
Approved by BCC : December 13 , 2011 *
ESCROW AGENT : Approved as to form and legal sufficiency.
COLLINS , BROWN, CALDWELL , BARKETT &
GAR \ VAGLIA , HARTERED S rJ
\ By :
Alan S . Pol kwich, Sr. , County Attorney
By : 1l ' v
Printed Nzime : �N ( � � Ir: } Approved '
Title : CSSkQ, ,1
ore, nazJ) A - rA a )
COMM/gs�0,, . ,
..
:ye� *;._ septi A . Baird , Administrator
r
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6`"• R COUt ;d
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Page 3 of 3
Signature Page of Second Amendment of Escrow Agreement
SELLER , BUYER :
SIIADOWBROOK ESTATES , INC . , a BOARD OF COUNTY COMMISSIONERS ,
Florida corporation INDIAN RIVER COUNTY , apolitical subdi -
vision of the State of Florida
By : By :
Printed Name : Gary C . Wheeler, Chairman
Title :
Approved by BCC : 120110
ESCROW AGENT : Approved as to form and legal sufficiency .
COLLINS , BROWN , CALDWELL , BARKETT &
GARAVAGLIA , CHARTERED
By :
�y Alan S . Polackwich , Sr . , County Attorney
By :
Printed N ptne : Hary +'� � ri tt Approved :
Title :
Joseph A . Baird , Administrator
Page 3 of 3