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HomeMy WebLinkAbout2000-266E©0,A'1(v 40 4W DOCUMENT ESCROW AGREEMENT THIS DOCUMENT ESCROW AGREEMENT ("Document Escrow Agreement"), is made as of September 1, 2000, by and between INDIAN RIVER COUNTY, FL OREM, a political subdivision ofthe State of Florida (the "County"), CITY OF VERO BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida (the "City"}, LOS ANGELES DODGERS, INC„ a Delaware corporation (the "Dodgers"), FOX BASEBALL HOLDINGS, INC., a Delaware corporation ("Fax"), DE GUARDIOLA DEVELOPMENT, INC,, a Florida corporation (the "Developer") and BRYANT, MILLER AND OLIVE, P.A., a Florida professional corporation (the "Agent"). WITNESSETH: WHEREAS, the County, the City, Fox, the Dodgers and the Developer (each a Party and collectively, the "Parties") have entered into the Memorandum of Understanding dated as of July 24, 2000, to acquire. renovate and improve the "Dodgenown" spring training facilities and other property located in Indian River County, Florida. and this Document Escrow Agreement shall serve to effect the transactions contemplated thereby: and WHEREAS, the Dodgers and the County have entered into that certain Agreement for Sale and Purchase dated as of September 1, 2000 Rahe "County Agreement for Sale and Purchase"); and WHEREAS, Fox, the Dodgers and the Developer have entered into that certain Agreement for Sale and Purchase dated as of September 1, 2000 (the "Developer Agreement for Sale and Purchase"); and WHEREAS, in order to facilitate the transactions contemplated by the Memorandum of Understanding, the County Agreement for Sale and Purchase and the Developer Agreement for Sale and Purchase, and the other Escrow Documents as hereinafter defined, the Partes enter into this Document Escrow Agreement to provide for the escrow ofah documents necessary to close in conjunction with the County's authonz.°ttion to sell revenue bonds or otherwise: issue obligations to fund the purchase price under the Countv Agreement for Sale and Purchase and the Construction Fund under the Development Agreement (the "Bonds"), and WHEREAS, Agent has been selected by the County to issue an owner's title insurance policy covering all real property interests identified in the County Agreement for Sale and Purchase. NOW THEREFORE, in consideration ofthe mutnMl promises, covenants, representations and agrectnentscontained herein, together with 510.00 and other good and valuable consideration exchanged amongst the Parties, the Patties to this Document. Escrow Agreement undertake, promise and agree for themselves or their permitted successors and assigns as follows: qp 40 0 SECTION -1. CREATION OF ESCROW, RECEIPT OF ESCROW DOCUMENTS. (A) Subject to the terms and conditions set forth herein, the Parties desire to appoint Agent to perform the duties jet forth herein, and Agent is willing to perforin such duties. (B) The Parties hereby deliver to, or will from time to time deliver to, Agent the documents identified. or to be identified, in Exhibit A hereto necessary to deliver and convey the Property to the Couary and otherwise fulfill the transactions contemplated by the Memorandum of Understanding (the "Escrow Documents"). As provided in Section (1) (D) hereof, Exhibit A shall be updated as the list of Escrow Documents may be added to, deleted from, or otherwise modified from time to time. (C) Agent shall acknowledge its receipt of the Escrow Documents from each Party and the Escrow Documents shall be held in escrow pending disbursement and disposition as provided for herein. (D) In the event the Parties, from time to time jointly add, delete or modify one or more of the documents escrowed hereunder. Arent shall provide a certificate, with a copy to each Pam hereto, identifying all documents cu=ntly held hereunder. Such certificate shall reflect a current composite list of all documents held by Agent. Agent shall be entitled to rely and act upon written instruction from any official, officer or attorney reasonably believed to be acting on behalf of any Party hereto. E) The Agent is hereby directed and authorized to direct disbursement of the Escrow Documents in accordance with a closing memorandum prepared in conjunction with the Bonds and agreed to by the Parties. so long as such memoranda provides for the immediate wire trutsferto the Seller of the net purchase price proceeds due under the County Agreement for Sale and Purchase at closing. SECTION' 2. DISTRIBUTION' OF ESCROkV DDCUNIENTS. 'Delivery_ and distribution of the ,Escrow Documents shall be and is expressly conditioned upon the fulfilling of all conditions and full performance under the Memorandum of Understanding. County Agreement for Sale and Purchase, Developer Agreement for Sale and Purchase. Development Agreement and this Document Escrow Agreement. However, all Parties acknowledge and agree that each shall timely act and continue to perform under the Memorandum of Understanding, County Agreement for Sale and Purchase,. Developer Agreement for Sale and Purchase. Development Ag-reentent. the other Escrow Documents or any other document or covenant associated with the foregoing tall of which are contemplated by the Memorandum of Understanding) to and through closing ornotice oftenninauon. including, but not limited to processing title insurance, surveys, environmental assessments. and site planning and permitting Processes, t! 4W Upon the satisfaction of all conditions set forth on Exhibit B hereto, each Party to the Memorandum of Understanding agrees to and shall execute a certificate acknowledging performance and satisfaction of conditions thereunder, and waiving any objections to the closing on the acquisition of the Land by the County under the County Agement for Sale and Purchase and the acquisition of land by the Developer under the Developer Agreement for Sale and Purchase, and the implementation of the other Escrow Documents held under this Document Escrow Agreement. Pollowing receipt ofall such certifications, the County will proceed with the sale of the Bonds or otherwise initiate financing as contemplated in the Memorandum of Understanding the City will proceed with funding the Grant Amount (as defined in the Interlocal Agreement), and the Developer will proceed to close on the land as contemplated by the Developer Agreement for Sale and Purchase. each to occur in conjunction with the closing on the Bonds, and the Agent shall thereupon be authorized and directed to deliver the Escrow Documents in conjunction with the closing on the Bonds. Upon notification from the County to Agent that the County has authorized the sale and subsequent dei ivcry of the Bonds or otherwise has available all funds necessary to close and upon Agent's confirmation that bank wire transfer( s) to the Seller under both the County Agreement for Sale and Purchase and the Developer ,Agreement for Sale and Purchase have been instituted and received, Agent shall cause the dclivery of the Escrow Documents and cause their recordation in the public records. If Agent has not been notified on or before May 31. 20D1 to disburse and deliver the Escrow Documents. Agent shall thereafter promptly rctum each documentheld to the Patty respectively providing such document to the Agent. However. upon written instructions signed by all Parties and delivered to the Agent. the Agent shall have the option and authority to continue to hold the Escrow Documents pending disbursement or written instructions signed by all Parties to return the documents. SECTION 3. DUTIES AND RESPONSIBILITIES OF AGENT. (o) The Agent's actions under this Document Escrow Agreement shall be deemed ministerial and so long as the Agent reasonably perform.% as provided heren except as prohibited bylaw with regard to the County and the City, the Parties agree to hold harmless and indemnify the Agent with respect to any loss or darru3ge experienced by the Agent, including reasonable anomeys fees. as a result of its good faith performance hereunder. 113 i Upon disbursement as provided herein or as otherwise ameed to by the Patties hereto at .:losing and the delivery ofthe Escrow Documentsas provided herein. or alternatively, upon die rentor of the Escrow Documents to the respective Parties as provided herein. this Document Escrow Agreement shall tetmmate. mar 40 40 f SECTION 4. AGREEMENT OF AGENT. Agent agrees to act, without fee, in accordance with the terms and conditions of this Agreement and the instructions contained herein. SECTION 5. EFFECTIVE DATE: ADDITIONAL SIGNATURES. Upon release of the Escrow Documents in accordance with the provisions hereof, the consummation of the transactions contemplated by the Memorandum of Understanding and the Escrow Documents shall occur. 1n accordance therewith, (a) the officers for the Parties shall (i) fill-in any and all blanks in the Escrow Documents, (ii) attach any and all exhibits that have not heretofore been attached to the Escrow Documents, and (id) make any necessary revisions to the Escrow Documents as mutually agreed to by the Pasties and (b) because the patties to the Escrow Documents have executed one (1) original of each of the Escrow Documents, upon release of the Escrow Documents in accordance with the provisions hereof, the parties to the Escrow Documents shall execute additional originals thereof, in order that each Parry have original fully executed counterparts of the Escrow Documents and (c) the Parties shall take or cause to be taken such further actions and execute and deliver or cause to be executed and delivered such other instruments as may be reasonably requested by the other Patties in order to consummate the transactions contemplated by the Escrow Documents. SECTION 6. DISPUTES. (A) In the event of any disagreement between the Patties resulting in conflicting instructions to, or adverse claims or demands upon Agent with respect to the release of the Escrow Documents, Agent shall refuse to comply with any such instruction. claim or demand so long; as such disagreement shall conunue, and in so refiusing Agent shall not release the Escrow Documents. Agent shall not be or become liable in any way to any of the Patties for its failure or refusal to comply with any such conflicting instructions or adverse claims or demands, and it shall be entitled to continue so to refrain from acting until such conflicting or adverse demands shall have (i) been settled by agreement and Agent receives notice thereof by all the Parties or (ii) finally been determined by a court of competent jurisdiction. (13) If any of the Parties or Agent shall be in disagreement about the interpretation of this Document Escrow Agreement, or about their respective rights and obligations, or about the propriety of any action contemplated by Agent, orifAgent receives or becomes aware of conflicting demands or claims with respect to this escrow or the rights of any of the Paries hereto or documents deposited herein or affected hereby, Agent may, but shall not be required to, file an action in interpleader to resolve the disagreement or dispute and, upon filing such action, Agent shall be released from ail obligations under this Document Escrow Agreement. If any action arising out of this Document Escrow Agreement is commenced by any of the Parties, Agent may deposit the Escrow Documents with the clerk of the court to which such action is commenced or pending and, upon depositing the Escrow Documents, Agent shall be released from all obligations under this Document Escrow Agreement. jDL 40 C3 0 SECTION 7. , INDEMNITY. (A) Each of the Parties hereby jointly and severally agree to save harmless, indemnify and defend (with counsel chosen by Agent) Agent for, from and against any loss, damage, liability, judgmen% cost and expense whatsoever, including reasonable attorneys' fees (eitherpaid to retained attorneys or the fair value of services rendered to itself), suffered or incurred by it, by reason of, or on account of; any misrepresentation made to it or its status or activities as Agent under this Document Escrow Agreement, except for any loss, damage, liability, judgment, cost or expense resulting from negligence or willful misconduct on the part of Agent. (B) Agent shall not be required to defend any legal proceeding; which may be instituted against it in respect of the subject matter of this Document Escruw Agreement unless requested to do so by all the Parties and indemnified to Agent's satisfaction against the cost and expense of such defense. tf any such legal proceeding is instituted against it, Agent agrees promptly to give notice of such proceeding to the Parties. Agent shall not be required to institute legal proceedings of any kind. SECTION 8. LIABILITY, DUTIES AND RESPONSIBILITY OF AGENT. (A) Agent undertakes to perform only such duties as are expressly set forth in this Document Escrow Agreement. Agent shall not be deemed to have any implied duties or obligations under or related to this Document Escrow Agreement. (B) Agent may (i) act in reliance upon any writing or instrument orsignature which it, in goad faith, believes to be genuine; (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and (iii) assume that any person purporting to grvc any wnting, notice. advice or instructions in connection with the provisions of this Document Escrow Agreement has been duly authorized to do so. Agent shall not be liable in any ntanncr for the suff icicncy or corrections as to form. maturer of execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing any instrument. (C) It is acknowledged that Agent is counsel for the County It is agreed that Agent shall not be disabled or disqualified from representing the Counry, its officers. directors, employees or agents in connection with any dispute or litigation which may arise out of or in connection with this Document Escrow Agreement or the transactions contemplated by the Escrow Docurrtcnis as a restdt of Agent acting as Agent under tim Document Escrow Agreement and the other Panics hereto waive any claim or right to assert a conflict of interest arising out of or in connection with the foregoing. 40 40 SECTION 9. NOTICES. Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or maybe given to, or served upon, any of the Parties, or Whenever any of the Parties desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto, each such notice, demand, request, consent, approval or other communication shall be in writing and shall be effective for any purpose only if given or served by (a) personal delivery with a signed receipt or (b) a recognized national courier service, addressed as follows: If to the City: City of Vero Beach 1053 20' Place Vero Beach, Florida 32961-1389 Attentian: City Manager Phone: (561) 9784710 Facsimile: (561) 778-3856 If to the County: Indian River County 1840 25'h Street Vero Beach, Florida 32960 Attention: County Administrator Phone: (561) 567-8040, Ext. 1408 Facsimile: (561) 978-1822 If to the Dodgers: Los Angeles Dodgers, Inc. Dodgertown P.Q. Box 2887 Vero Beach, Florida 32961 Attention: Mr. Craig Callan Phone: (551) 569-4900 Facsimile: (561) 770-2424 With a copy to: Los Angeles Dodgers. Inc. 1000 Elysian Park Avenue Los Angeles, California 90012 Attention: Santiago Fernandez, Esq. Senior Vice President & General Counsel Phone: (323) 224-1312 Facsimile: (323) 224-1595 3oll- If to Fox: Fox Sports Enterprises P.Q. Box 900 Beverly Hills, CA 90213-0900 Attention: Gary Ehrlich Phone: (310) 369-2765 Facsimile: (310) 369-3921 If to the Developer: de Guardiola Development, Inc. 222 Lakeview Avenue 17'h Floor West Palm Beach, Florida 33401 Attention: George de Guardiola Phone: (561) 655-1838 Facsimile: (561) 655-5979 If to the AgentBryant. Miller and Olive. P.A. 201 South Monroe Street Suite 500 Tallahassee, Florida 32301 Attention: Robert C. Reid Phone: (850)222-8611 Facsimile: (850) 222-8969 % n y such notice may be given, in the manner provided in this Section, on a Party's behal fby its attorneys designated by such party by notice hereunder, Every notice given hereunder shall be effective on the date actually received. as indicated on the receipt therefor or on the elate delivery thereof is refused by the recipient thereof. Any Parry hereto antsy by notice delivered to Agent and the other Parties, change its address for purposes of this Document Escrow Agreement. SECTION 10. MODIFICATION. No covenant. agreement, team or condition of flus Document Escrow Agreement shall be changed, modified, altered. waived or terminated except by a written instrument of change, modification, alteration, waiver or terminanon executed by all Parties. Agent shall not be bound by any modification of this Document Escrow Agreement, unless there is delivered to Agent a written modification signed by all the Parties. No such modification shall, without the written consent of Agent, modify the provisions of this Document Escrow Agreement relating to the duties, obligations or rights of Agent. 0 i t! i SECTION 11. SUCCESSORS. This Document Escrow Agreement shall be binding upon and inure to the benefit of the Panties, their heirs, executors and administrators; provided, however, that neither this Document Escrow Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties hereto without the prior written consent of the other Parties. SECTION 12. CONSTRUCTION. This Document Escrow Agreement shall be governed by and construed in accordance with the laws of the State of Florida, SECTION 13. MISCELLANEOUS. The tides to the paragraphs or sections of this Document Escrow Agreement are solely for the convenience of the Parties and Agent and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Document Escrow Agreement. All references in this document Escrow Agreement to the terms "herein", "hereunder" and words of similar impon shall refer to this Document Escrow Agreement, as distinguished from the paragraph or Section within which such tens is located. This Document Escrow Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall represent one instrument. If any provision of this Document Escrow Agreement or the application thereof to any person or circumstances is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Document ,Escrow Agreement, and the application of such provision to persons or circumstances other than those as ro which it is held invalid and unenforceable. shall not be affected thereby and each tern and provision of this Document Escrow Agreement shall be valid and enforceable to the fullest extent permitted by law. SECTION 14. ENTIRE AGREEMENT. This Document Escrow Agreement is irrevocable and shall not be amended or modified unless executed in «rittng by all Parties hereto. This. Document Escrow Agreement shall be ,governed by the applicable laws of the State of Florida and is the entire agreementbetween the Parties pertaining to the subject escrow. ,.fo� IN WITNESS WHEREOF, the Parties hereto have entered into this Document Escrow Agreement as of the day and year first above written. INDIAN RIVER COUNTY, FLORIDA By: Chairman ATTEST: Clerk Approved as to Form and Legal Sufficiency lav: County Attorney ATTEST. City Clerk Approved as to Form and Legal Sufficiency City Attorney 9 CITY OF VERO BEACH, FLORIDA By: Mayor -a 7 40 i E7 IN WITNESS WHEREOF, the Parties hereto have entered into this Document Escrow Agreement as of the day and year first above written. ATTEST Clerk J.K. .._ Approved as tq Form and Legal Sufficiency .J1 ounty Attorney ATTEST: City Clerk Approved as to Form and Legal Sufficiency Bv: City Attorney INDIAN RIVER COUN'T'Y, FLORIDA y +� WIAldr'. CITY OF VERO BEACH, FLORIDA M Mayor ATTEST: By: Witnesses: ATTEST:. By bWimesses: {Q LOS ANGELES DODGERS, INC. BY: Its: FOX BASEBALL HOLDINGS INCORPORATED Ku LwllJ W"imesses: A 40 EXHIBIT A List of Escrow Documents 1. Agreement for Sale and Purchase between the Country and the Dodgers. ?. Agreement for Sale and Purchase between the Developer and the Dodgers. 3, Facility Lease Agreement between the County and the 'Dodgers. 4. Development Agreement between the County and the Rodgers. 5, Capital Reserve Account Agreement between the County, the Dodgers and the Capital Reserve Account Agent named therein. b. Parking Agreement between the County, the Dodgers, and the Developer, 7, Interlocal Agreement between the County and the City. ■ 3%d 40 40 EXHIHIT B ESCROW RELEASE CONDITIONS Prior to closing on the (i) County Agreement for Sale and Purchase between the County and the Dodgers and the issuance of Bonds as contemplated in the Memorandum of Understanding, and (ii) Developer Agreement for Sale and Purchase, the following conditions shall have been satisfied, or waived in writing by the Parties hereto, and each, in its sole and absolute discretion, shall have executed a Certificate acknowledging waiver or performance of the following: (1) The environmental site assessment required under the County Agreement for Sale and Purchase has been obtained, updated and accepted by the County and the Dodgers as provided therein; (2) The land survey required under the County Agreement for Sale and Purchase has been obtained, updated and accepted by the County as provided therein; (3) The title insurance commitment required under the County Agreement for Sale and Purchase has been obtained, endorsed and accepted by the County as provided therein; (4) Tlnc ADA site assessment required under the County Agreement for Sale and Purchase has been obtained, updated and accepted by the County and the Dodgers as provided therein. (i) The Dodgers have prepared the preliminary design pian in order to prepare the Design. Criteria Package called for in the Development Agreement and same has been accepted by both the Dodgers and the County; (G) The County has duly selected a Design Build Firm; the Dodgers have entered into a Design l3trild Agreement; Project Design has commenced and is substantially complete, Construction Drawings are substantially complete; and all site plan approvals reasonably necessary to immediately commence construction ofthe Improvements have been obtained and are acceptable to the Parties (all capitalized terms being defined in the Development Agreement or the Memorandum of Understanding); (7) The Developer has not provided notice of termination as described in the Memorandum of Understanding in connection with site plan approvals and the Developer is in a position to obtain a building permdt and commence construction on the land to be acquired by the Developer under the Developer Agreement for Sale and Purchase upon acquisition of said land; M CI 40 • (g) The environmental site assessment required underthe Developer Agreement for Sale and Purchase has been obtained, updated and accepted by the Developer and the Dodgers, as provided therein; (9) The land survey requirement under the Developer Agreement for Sale and Purchase has been obtained, updated and accepted by the Developer, as provided therein; (1 d) The title insurance commitment required under the Developer Agreement for Sale and Purchase has been obtained. endorsed and accepted by the Developer, as provided therein; (11) The Developer and the Dodgers have finalized the Collateral Development Agreement, the Declaration and the License Agreement. as such terms are defined in the Developer Agreement for Sale and Purchase; (12) The Dodgers have confirmed the Project Costs (as defined in the Development Agreement) and have not terminated the Development Agreement pursuant to Section 6.1 thereof; (13) The Parties shall have timely filed the necessary Application to the Florida Office of Tourism required by Section 288.1162. Florida Statutes, as described in the Memorandum of Understanding; (14) The Florida Office ofTourism stall have approved the Application nequired by Section 288.1 162, Flonda Statutes, as described in the Memorandum of Understanding; (15) The County shall have extended the Tourist Development Tiix as described in the Memorandum of Understanding; 1 16) The Capital Reserve Account Agent (as defined in die Capital Reserve Account ALTeement) has been selected and has executed the Capital Reserve Account Areement; t 171 The Declaration of Easements contemplated by the Parking Agreement has been finalized by the Parties to the Parking Agreement. 1 18) The Collateral Development Conceptual Master Plan las defined in the Parking Agrreement) has been finalized, i 141 The Facility Conceptual Master Plan (as defined in the Parkins! Agreement) has been finalized, S-2 40 40 LA (20) The Parties have executed certificates acknowledging or otherwise waiving performance and satisfaction of all conditions under the Memorandum of Undemanding or any other documentation facilitating the transactions contemplated thereby, waiving any objections to the closing on the acquisition of the Land by the County under the County Agreement for Sale and Purchase, the acquisition of the Land by the Developer under the Developer Agreement for Sale and Purchase, and the implementation of the other documents held under this Document Escrow Agreement. 13-3 %3