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HomeMy WebLinkAboutExhibit - Escrow AgreementESCROW AGREEMENT This Escrow Agreement (the "Agreement") is entered into by and between ESJ JI Leasehold, LLC, a Florida limited liability company ("ESJ"), having an address of 19950 W. Country Club Drive, Suite 800, Aventura, Florida 33180; and the City of Miami, a Florida municipal corporation (the "City" or "Escrow Agent"), having an address of c/o City Manager, 444 SW 2" `l Avenue, Miami, Florida 33131. This Agreement is dated as of the last date of execution by the parties hereto (the "Effective Date"). RECITALS WHEREAS, the City is the owner of that certain tract of land on Watson Island comprising approximately 19.35 acres, commonly known as Jungle Island, and whose legal description is attached hereto and incorporated herein as Exhibit "A" (the "Land"); WHEREAS, ESJ and the City are parties to that certain Lease and Development Agreement, as modified pursuant to four (4) modifications (as so modified, collectively, the "Lease"); WHEREAS, the Lease was modified pursuant to, inter alia, that certain Third Modification to Lease and Development Agreement (the "Third Modification"); WHEREAS, pursuant to the Lease, ESJ is leasing the Land for the operation of a botanical garden and theme park attraction known as Jungle Island ("Jungle Island"); WHEREAS, the term of the Lease has approximately 43 years remaining; WHEREAS, ESJ desires to develop a hotel, parking structure and related improvements (collectively, the "Hotel") on the Land; WHEREAS, the Third Modification modified the Lease by adding a definition for "Additional Improvements" which includes a themed hotel and related retail and entertainment, thereby providing ESJ with the potential opportunity to develop and operate a hotel on the Land, subject to approval of the electorate in a citywide referendum; WHEREAS, pursuant to Sections 29-B and 29-C of the City Charter, the Lease by the City of waterfront land requires the approval of the electorate in a citywide referendum; WHEREAS, on November 7, 1995, a referendum was approved authorizing the City to enter into the Lease relating to Jungle Island; WHEREAS, in order to allow the development of the Hotel at Jungle Island, the City has opined that another referendum is required; WHEREAS, in order to include in the referendum the question of whether competitive bidding shall be waived, the City Attorney has opined that a 4/5's affirmative vote by the City Commission is required; MIADOCS 16113314 4 39988.0031 WHEREAS, in order to obtain financing for the construction of the Hotel, there is a need for an extension of the term of the Lease, which the City has opined also requires the approval of the electorate in a referendum; WHEREAS, the parties mutually negotiated and agreed to that certain Fifth Modification to Lease and Development Agreement attached hereto as Exhibit "B" and incorporated herein by this reference (the "Fifth Modification"), which Fifth Modification shall be executed, held in escrow and become effective, subject to, and in accordance with, the terms and conditions set forth in this Agreement. NOW THEREFORE, in exchange for the mutual promises set forth herein and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Fifth Modification. The parties acknowledge and agree that the terms and conditions of the Fifth Modification have been agreed to by both parties as set forth on Exhibit "B" attached hereto and incorporated herein. 3. Execution and Escrow Upon Approval of Placing Hotel Referendum on Ballot. In the event the City Commission approves (i) placing a referendum on the development of the Hotel at Jungle Island and the extension of the term of the Lease (the "Hotel Referendum") on the ballot, and (ii) by a 4/5's affirmative vote, including on the ballot the question of whether competitive bidding shall be waived (collectively, the "Commission Ballot Approval"), then ESJ and the City shall, within twenty (20) days after the date of the City Commission meeting where Commission Ballot Approval was given, execute the Fifth Modification and deliver to Escrow Agent, in escrow, the fully executed Fifth Modification. Escrow Agent agrees to hold the Fifth Modification in escrow and then release it pursuant to, in accordance with and subject to the terms and conditions of this Agreement. 4. Approval of Hotel Referendum. If the Hotel Referendum is Approved (as defined below), (a) Escrow Agent shall, within one (1) business day after such approval, release the fully executed Fifth Modification from escrow and deliver an original counterpart of the Fifth Modification to each of ESJ and the City, (b) the Fifth Modification shall automatically become effective as of the date the Hotel Referendum is approved, and (c) ESJ shall have the right to develop the Hotel on the Land in accordance with the terms set forth in the Fifth Modification. Either party to this Agreement shall have the right to record the Fifth Modification, or memorandum thereof, in the public records of Miami -Dade County, Florida. Notwithstanding anything to the contrary herein, the Hotel Referendum shall be deemed "Approved" if at least fifty percent (50%) plus one of the persons voting on the Hotel Referendum vote to approve the Hotel Referendum. 2 MIADOCS 16113314 4 39988.0031 5. Hotel Referendum is Not Approved. If the Hotel Referendum is not Approved within twenty-four (24) months after the Effective Date, (a) Escrow Agent shall write "void" across each original counterpart of the Fifth Modification and return such voided original counterparts to each of ESJ and the City, (b) the Fifth Modification shall be of no force and effect, and (c) the Lease shall continue in full force and effect without the Fifth Modification. 6. Default by ESJ. In the event of any breach of this Agreement by ESJ, and ESJ fails to cure said breach within seven (7) days after receiving written notice from the City of said default, the City shall have, as its sole and exclusive remedy as a result of such breach, either of the following remedies: the option to seek equitable relief, including but not limited to specific performance, or the option to terminate this Agreement and seek damages from ESJ. 7. Default by the City and/or Escrow Agent. In the event of any breach of this Agreement by the City and/or Escrow Agent, and the City and/or Escrow Agent fails to cure said breach within seven (7) days after receiving written notice from ESJ of said default, ESJ shall have, as its sole and exclusive remedy as a result of such breach, either of the following remedies: the option to seek equitable relief, including, but not limited to specific performance or the option to terminate this Agreement and seek damages from the City and/or Escrow Agent. 8. Consideration. As part of the consideration for this Agreement, ESJ agrees to pay the following: (a) all soft costs associated with the initial design of the Hotel for purposes of preparing the ballot language for the Hotel Referendum; (b) all costs imposed by the Miami -Dade County Elections Department in connection with the Hotel Referendum (provided however ESJ shall have no obligation to pay any costs related to any legal challenges against the County); (c) all costs to retain a consultant to educate the voters on all aspects of the Hotel Referendum, and (d) a payment of One Thousand and No/100 Dollars ($1,000.00) to the City. 9. Miscellaneous. a. No waiver. No right of either party shall be deemed waived unless contained in a writing signed by the party to be charged. b. Severability. In the event any provision of this Agreement is declared unenforceable by a court of competent jurisdiction, the remaining clauses of this Agreement shall not be affected thereby. c. Governing law and venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to principles of conflict of laws and venue shall be Miami -Dade County. d. Headings. The headings and titles in this Agreement have been inserted only for convenience and shall not affect meaning of any provision of this Agreement. 3 MIADOCS 161 13314 4 39988.0031 e. Binding Effect. This Agreement shall be binding upon the parties and their respective successors and assigns under the Lease. f, Defined Terms. Any defined terms used herein but not defined herein shall have the meanings given to them in the Lease. [Signature Page Follows] 4 M 1ADOCs 161 13314 4 39988A031 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as set forth below. ATTEST: CITY OF MIAMI By: By: Emilio T. Gonzalez, Ph.D. Todd B. Hannon City Clerk City Manager (date) APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM & REQUIREMENTS CORRECTNESS By: By: Ann -Marie Sharpe, Director Risk Management Department Victoria Mendez City Attorney ESJ JI LEASEHOLD, LLC, A FLORIDA LIMITED LIABILITY COMPANY By: (date) Acceptance by Escrow Agent: The City accepts the duties of Escrow Agent: , 2018 CITY OF MIAMI By: (date) 5 MIADOCS 161133 E4 4 39988,0031 Exhibit "A" Legal Description PARCEL I: That portion of WATSON ISLAND lying and being in Sections 31 and 32, Township 53 South, Range 42 East, being more particularly described as follows: Commence at a point known as P.T. STATION 25+50 of the official map of location and survey of a portion of Section 8706, designated as a part of State Road A-1-A in Dade County, Florida as recorded in Plat Book 56 at Page 71 of the Public Records of Dade County, Florida, said Point being the point of tangency of the centerline of the most Northerly curve of General Douglas Macarthur Causeway, running Southeastwardly from the Northwesterly comer of Watson Island and having a radius of 1432.69 feet and a central angle of 62 degrees 00 minutes 00 seconds; thence run North 60 degrees 52 minutes 45 seconds East, along the Northeasterly prolongation of the radial line of the above mentioned curve for a distance of 670.74 feet to the Point of Beginning of the parcel to be described. (Said point being also the Point of Beginning of lease area 1 Miami Yacht Club; thence South 09 degrees 52 minutes 53 seconds East, along the Southwesterly line of said lease area 1 and its Southeasterly extension for 857.30 feet; thence South 60 degrees 52 minutes 45 seconds West, for 223.24 feet to its intersection with a line parallel and 100 feet Northeasterly of the most Northerly right-of-way line of said Macarthur Causeway; thence North 29 degrees 07 minutes 15 seconds West, parallel to said right-of-way for 1100.97 feet to a point of tangency; (A) thence along a tangential curve concave to the Southwest having a radius of 800.00 feet, a central angle of 25 degrees 16 minutes 16 seconds for an arc distance of 352.85 feet, thence South 90 degrees 00 minutes 00 seconds West for 94.95 feet to its intersection with the Northerly right-of-way line of said Macarthur Causeway and a circular curve concave to the Southwest, said point bears South 41 degrees 51 minutes 52 seconds West from its center; (B) thence along said curve having for its elements a radius of 1090.64 feet, a central angle of 6 degrees 47 minutes 18 seconds for an arc distance of 129.22 feet to a point of compound curvature; (C) thence along a compound curve concave to the Southwest having for its elements a radius of 1441.25 feet, a central angle of 20 degrees 27 minutes 49 seconds for an arc distance of 514.75 feet; (D) thence North 34 degrees 54 minutes 16 seconds East for 338.29 feet; thence South 55 degrees 05 minutes 44 seconds, East for 726.47 feet to its intersection with the approximate shoreline of Biscayne Bay; thence continue along said shoreline for the following eight courses (1) South 88 degrees 21 minutes 37 seconds East for 63.38 feet; (2) thence South 86 degrees 09 minutes 34 seconds East for 68.47 feet; (3) thence South 82 degrees 33 minutes 21 seconds East for 131.22 feet; (4) thence South 72 degrees 18 minutes 34 seconds East for 82.71 feet; (5) thence South 69 degrees 29 minutes 02 seconds East for 102.34 feet; (6) thence South 67 degrees 53 minutes 24 seconds East for 82.52 feet; (7) thence South 69 degrees 05 minutes 26 seconds East for 94.62 feet; (8) thence North 80 degrees 40 minutes 44 seconds East for 46.77 feet to its intersection with the Southwesterly line of said lease Area 1; thence South 08 degrees 07 minutes 15 seconds East along said line for 288.12 feet to the Point of Beginning and there terminating. 6 MIADOCS 16113314 4 39988.0031 LESS AND EXCEPT: That portion of WATSON ISLAND lying and being in sections 31 and 32, Township 53 South, Range 42 East described as follows: Commence at a point known as P.T. Station 25+50 of the official map of location and survey of a portion of section 8706 designated as a part of State Road A-1-A in Miami -Dade County, Florida as recorded in Plat Book 56, Page 71 of the Public Records of Miami -Dade County, Florida, said point being the point of tangency of the centerline of the most northerly curve of General Douglas MacArthur Causeway, running southeasterly from the northwesterly corner of Watson Island and having a radius of 1432.69 feet and a central angle of 62 degrees 00 minutes 00 seconds; thence North 60 degrees 52 minutes 45 seconds East, along the northeasterly prolongation of the radial line of the above mentioned curve for a distance of 130.00 feet to a point on the easterly right-of- way line of said MacArthur Causeway as recorded in Official Records Book 18018, at Page 1171 and Official Records Book 18699, at Page 1236 of the Public Records of Miami -Dade County, Florida; thence North 29 degrees 07 minutes 15 seconds west, along said right-of-way line, 256.28 feet to a point of curvature of a curve concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 926.00 feet and a central angle of 25 degrees 46 minutes 26 seconds, a distance of416.55 feet; thence North 54 degrees 53 minutes 41 seconds West, 3.51 feet to the Point of beginning; thence continue North 54 degrees 53 minutes 41 seconds west, 157.45 feet to a point of curvature of a curve concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 1454.25 feet and a central angle of 16 degrees 22 minutes 32 seconds, a distance of 415.64 feet; thence North 18 degrees 43 minutes 47 seconds East, radially to the last and next described curves, a distance of 4.77 feet to a point on a non -tangent curve, concave to the southwest; thence northwesterly along the arc of said curve, having a radius of 1459.02 feet and a central angle of 03 degrees 50 minutes 38 seconds, a distance of 97.89 feet (the preceding six courses and distance being coincident with the easterly and northeasterly right - of - way line of said MacArthur Causeway as recorded in Official Records Book 18018, at Page 1171 and Official Records Book 18699, at Page 1236 of the Public Records of Miami -Dade County); thence South 34 degrees 54 minutes 16 seconds West, 18.80 feet to a point of curvature of a non - tangent curve concave to the southwest ( a radial line to said point bears North 14 degrees 36 minutes 45 seconds East); thence southeasterly along the arc of said curve, having a radius of 1441.25 and a central angle of 20 degrees 27 minutes 49 seconds, a distance of 514.75 feet to a point of compound curvature of a curve concave to the southwest; thence southeasterly along the arc of said curve, having a radius of 1090.64 feet and a central angle of 06 degrees 47 minutes 18 seconds, a distance of 129.22 feet; thence North 90 degrees 00 minutes 00 seconds East, 35.33 feet to the Point of Beginning. TOGETHER WITH THE FOLLOWING LANDS: That portion of WATSON ISLAND lying and being in sections 31 and 32, Township 53 South, Range 42 East described as follows: Commence at a point known as P.T. STATION 25+50 of the official map of location and survey of a portion of Section 8706, designated as a part of State Road A-1-A Miami -Dade County, Florida as recorded in Plat Book 56, Page 71 of the Public Records of Miami -Dade County, Florida, said point being the point of tangency of the centerline of the most northerly curve of General Douglas MacArthur Causeway, running southeasterly from the northwesterly corner of Watson Island and having a radius of 1432.69 feet and a central angle of 62 degrees 00 minutes 00 seconds; thence North 60 degrees 52 minutes 45 seconds East, along the northeasterly prolongation of the radial line of the above mentioned curve for a distance of 670.74 feet; thence 7 MIADOCS 66113314 4 39988.0031 South 09 degrees 52 minutes 53 seconds East, 387.30 feet to the Point of Beginning; thence continue South 09 degrees 52 minutes 53 seconds East, 470.00 feet; thence North 60 degrees 52 minutes 45 seconds East, 30.75 feet; thence North 08 degrees 45 minutes 06 seconds West, 49.29 feet; thence North 09 degrees 52 minutes 53 seconds West, 180.24 feet; thence North 13 degrees 41 minutes 45 seconds West, 134.32 feet; thence North 13 degrees 41 minutes 15 seconds West, 94.07 feet; thence South 89 degrees 32 minutes 37 seconds West, 15.03 feet to the Point of Beginning. PARCEL II: TOGETHER WITH Non -Exclusive Easements and rights in real property in favor of Parrot Jungle and Gardens of Watson Island, Inc. created in the Lease, to wit: Easements (i) for the temporary use of Watson Island during construction of leasehold improvements by Lessee on the Subject Property, (ii) in favor of Lessee, on a non-exclusive basis, for installation, operation, maintenance, repair, replacement, relocation and removal of utility facilities such as water lines, fire lands, gas mains, electrical power lines, telephone lines, storm and sanitary sewers and other utility lines and facilities, including reasonable rights of ingress and egress; (iii) for the non-exclusive right and easement for unobstructed vehicular access to and from the Subject Property to MacArthur Causeway; (iv) for the non-exclusive right of Lessee to use portions of Watson Island, which Watson Island is depicted by sketch in the Lease ("Watson Island"), in common with the public, subject to the Lessor's right to restrict portions of Watson Island for reasonable periods during special events, for the unobstructed pedestrian access to and from the Subject Property by Lessee, subtenants and their employees, agents, customers and invitees to all of the public areas of Watson Island; (v)for the reasonable right and easement to enter onto those portions of Watson Island for the purpose of performing maintenance and repairs to the Lessee's Leasehold Improvements; and (vi) for the non-exclusive rights and easements for installation, maintenance, repair and replacement of utility facilities and for pedestrian and vehicular access to and from the adjacent portions of Watson Island to the Subject Property as such locations as may be approved by the Lessor from time to time. 8 MIADOCS 161 13314 4 39988.0031 EXFIIBI`I' "B" Fifth Modification 9 MIADOCS 16113314 4 39988.0031