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;
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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.
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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.
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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]
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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)
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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.
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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
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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.
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EXFIIBI`I' "B"
Fifth Modification
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