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HomeMy WebLinkAbout23006AGREEMENT INFORMATION AGREEMENT NUMBER 23006 NAME/TYPE OF AGREEMENT LANCELOT MIAMI RIVER, LLC & CHICAGO TITLE INSURANCE COMPANY DESCRIPTION ESCROW AGREEMENT & /DEVELOPMENT & CONSTRUCTION OF THE CITY'S NEW ADMINISTRATIVE BUILDING/FILE ID: 5971/R-19-0255 EFFECTIVE DATE November 21, 2019 ATTESTED BY NICOLE EWAN , ATTESTED DATE 11/21/2019 DATE RECEIVED FROM ISSUING DEPT. 2/12/2020 NOTE ESCROW AGREEMENT This Escrow Agreement ("Agreement") :dated as: of*ve er 2:I , 2019 (the "Effective' • Date"), by and among (i) the CITY:OF MIAMI, a Florida municipal corporation ("City"); (ii) LANCELOT MIAMI RIVER, LLC,: a Florida limited :liability company, . -and itspermitted. successors.. and/or permitted assigns ("Development. Manager"), and :(iii) CHICAGO TITLE INSURANCE: COMPANY ("Escrow Agent"). RECITALS: A. A: Development Manager:: owns that: certain: real property located at 230 SW 3rd. Street in the City of Miami, Miami -Dade . County, -Florida (the "Land") more particularly described on Exhibit A attached hereto and made a parthereof; B. : City intends topurchase the: portion of the Land from the:Development Manager .labeled City Parcel . as more -Particularly described on Exhibit A attached hereto and made a part:hereof;.the Development Manager intends to retain ownership of the .balance of the Land as more particularly:described:in the Development:Agreement (as defined below); C. On the 21 Ct day of :{k ./e. er; 2019,: City and .Development: Manager entered into a Development Management &: Construction Agreement (as :may be amended from:time to: time, the "Development Agreement") relating to the construction of, amongst other things, the following: improvements on the: Land: (i) 'a minimum of 230;000 usable square feet of office space (using BOMA measurement standards) to serve- as the City's new: Administration Facility (the "City Facility"); • (u).. a parking. garage containing approximately One Thousand. Three. Hundred::(1,300) parking spaces (the "Parking Structure"), of which One Thousand (1,000 +/-) :. spaces: will be :owned by the City :(the "City Spaces") (iii) retail :and/or office space,: some of which: • will be owned by: the City: and some : of which : will be: owned by : the Development: • Manager, and (iv) :amenities:: to serve: the entire : -Project: (as defined in the: : Development Agreement), all in. accordance with Approved Plans and Specifications (as defined in the Development Agreement) reviewed by City pursuant to the Development Agreement. For purposes of this Agreement, the City Facility, the City Spaces and the portion(s) -of additional retail and/or office space :to be owned by the City are collectively referred to as the "City Project'.'. • D. : Pursuant: to the Development:Agreement, City: and Development Manager agreed that: Development Manager will: deposit with the: ' Escrow:. Agent ONE MILLION EIGHT HUNDRED:AND TEN -THOUSAND DOLLARS: ($1;810,000.010) (together with all:interest:and income earned thereon. while funds are in: escrow, the "Escrow Funds"), which hinds shall: :be held by :the Escrow Agent and disbursed by the Escrow Agent to ensure timely payment of all applicable costs,:: fees and: expenses: contemplated in the Development Agreement; including, without:limitation,..(i) direct payments to engineers, architects, designers, attorneys, contractors.. and other third parties formally engaged and authorized to perform work and supply :materials in connection with the City Project; (ii) payments to -Development Manager to either :reimburse: the :Development Manager for those costs; fees and: expenses: paid in advanced by : Development Manager, or otherwise :paid to: 'Development Manager so that Development Manager may :pay such parties in accordance with the: Development Agreement and this Agreement, and/or (iii): ACTIVE 44876773v6 payments for all studies, reports, applications, service fees, filing fees, approval fees, administrative fees, and such other similar costs and expenses; and E. The parties hereto wish to specify the terms and conditions on which the Escrow Funds will be held, invested and disbursed, and the Escrow Agent has expressed its willingness to act as escrow agent hereunder. Accordingly, City, Development Manager and Escrow Agent hereby agree as follows: 1. Definitions and Recitals. The recitals are true and correct and incorporated into this Agreement by reference. Capitalized terms used herein without definition shall have the meanings given to them in the Development Agreement. 2. Escrow Funds. City and Development Manager hereby instruct the Escrow Agent, to (i) hold in escrow the Escrow Funds, which Escrow Funds are available for use by Development Manager to develop the City Project as provided in the Development Agreement, and (ii) deposit the Escrow Funds in an interest -bearing account to be used solely for the purposes set forth herein, provided that Development Manager (a) provides its federal tax identification number to Escrow Agent by the execution and delivery to Escrow Agent of a completed IRS Form W-9, and (b) executes and delivers to Escrow Agent any investment forms or direction letters reasonably requested by Escrow Agent. Pursuant to the terms of the Development Agreement, the Escrow Funds shall be funded by Development Manager to Escrow Agent within thirty (30) days following the Effective Date. Escrow Agent shall hold the Escrow Funds in escrow and disburse same in accordance with the terms and conditions of this Agreement. 3. Disbursement of Escrow Funds. (a) Disbursement Procedure. The Escrow Agent shall disburse Escrow Funds, unless otherwise provided in the Joint Consent Requisition Form (as defined below), within no more than two (2) business days following receipt of: (i) a written Joint Consent Requisition Form executed by City and Development Manager in the form attached hereto as Exhibit B, specifying (a) the amount to be disbursed, (b) the date of disbursement, (c) the recipients of the disbursement, and (d) the manner of disbursement and delivery instructions (the "Joint Consent Requisition Form"); or (ii) a Court Order (as defined below) requiring the payment of a specified amount, to the effect that such order is of a court of competent jurisdiction and is final and non -appealable, upon which order and written certification the Escrow Agent shall act without further question. (b) Outside Release Date. Notwithstanding Section 3(a) above, on July 31, 2024 (the "Outside Release Date"), Escrow Agent shall, immediately and without further instructions, release the amount of any undisbursed Escrow Funds held by Escrow Agent pursuant to this Agreement, if any, in accordance with the terms of Section 1.1(b)(1)(ii) the Development Agreement. 4. Escrow Agent Fees and Duties. The total amount of fees, costs and expenses charged by Escrow Agent with respect to the escrow established pursuant to this 2 ACTIVE 44876773v6 Agreement is $ 1 50.00 per draw (the "Escrow Fees"). Escrow Agent shall have no express duties or responsibilities except for those set forth in this Agreement. Escrow Agent shall exercise the customary standard of care used by escrow agents in the State of Florida. 5. Exculpation of Escrow Agent. If in doubt as to its duties and responsibilities under this Agreement, Escrow Agent may consult with counsel of its choice and shall be protected in any action taken or omitted in good faith in accordance with the advice of such counsel. Except for the failure by Escrow Agent to comply with the terms of this Agreement or for acts of Escrow Agent's own intentional misconduct, breach of trust or gross negligence, in which event and Development Manager and City shall be entitled to exercise any and all rights and remedies available under this Agreement, at law, or in equity: (a) Escrow Agent shall have no liability of any kind whatsoever for the performance of any duties imposed upon Escrow Agent under this Agreement or for any action or failure to act by Escrow Agent under this Agreement; (b) Escrow Agent shall not be responsible for the acts or omissions of any other parties to this Agreement; (c) Escrow Agent shall not be liable to anyone for damages, losses, or expenses arising out of this Agreement; (d) provided that the Escrow Funds are invested as set forth in Section 2, Escrow Agent shall have no responsibility for the rate or amount of interest, if any, earned on the Escrow Funds or for the preservation of the principal of the Escrow Funds; and (e) Escrow Agent may rely and/or act upon any notice, instrument or other document believed by Escrow Agent in good faith to be genuine and to be executed and delivered by the proper party, and may assume in good faith the authenticity, validity and effectiveness thereof, and shall not be obligated to make any investigation or determination as to the truth and accuracy of any information contained therein. Development Manager and City hereby authorize and direct Escrow Agent to accept, obey and comply with any and all writs, orders, judgments or decrees issued or entered by any court with having jurisdiction (a "Court Order") notwithstanding anything to the contrary in this Agreement, and agree that. if Escrow Agent accepts, obeys or complies with any such Court Order notwithstanding any provision to the contrary in this Agreement, Escrow Agent shall not be liable to Development Manager or City by reason of such acceptance, obedience or compliance, notwithstanding that any such Court Order is subsequently reversed, modified, annulled, set aside or vacated. 6. Entire Agreement; Conflict with Development Agreement. In regard to Development Manager and City, this Agreement and the Development Agreement constitute the entire agreement and understanding among Development Manager and City with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among Development Manager and City with respect to the subject matter of this Agreement. As between the Escrow Agent, on the one hand, and Development Manager and City, on the other hand, this Agreement constitutes the entire agreement and understanding among the Escrow Agent and Development Manager and City with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, between the Escrow Agent, on the one hand, and Development Manager and City, on the other hand, with respect to the subject matter of this Agreement. In the event that any of the terms and provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control the duties of the Escrow Agent in all respects (it being understood, however, as between Development Manager and City, in the event that any of the terms and provisions of the Development Agreement conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of the Development Agreement shall control). 3 ACTIVE 44876773v6 7. Jurisdiction; Venue; . Any litigation or other court proceeding with respect to any matter arising from or in connection with this Agreement shall be conducted in Miami, Florida, and each party hereby submits to jurisdiction and consents to venue in such courts. 8. Jury Waiver. If a lawsuit is commenced as to any matter relating to this Agreement or the Escrow Funds, all of the parties to this Agreement hereby knowingly, irrevocably, voluntarily and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement or arising out of, under, or in connection with this Agreement or any Escrow Funds, or any course or conduct, course of dealing, statements (whether verbal or written) or action of any party hereto. This provision is a material inducement for the parties entering into this Agreement. 9. Parties in Interest. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective permitted successors and permitted assigns of the parties hereto. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any party other than the parties hereto and their permitted successors and assigns, any rights or remedies under or by reason of this Agreement or any transaction contemplated hereby. Development Manager shall have the right to assign its interest in this Agreement to an Affiliate Person (as defined in the Development Agreement) in accordance with the terms and conditions provided in the Development Agreement. 10. Amendment. This Agreement may be amended only with the written consent of Development Manager, City and Escrow Agent (or successor Escrow Agent, as applicable). 11. Notices. All notices and other communications under this Agreement shall be deemed to have been given for all purposes of this Agreement (i) if delivered by hand upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a business day or is required to be delivered on or before a specific day which is not a business day, the day of receipt or required delivery shall automatically be extended to the next business day, (ii) if delivered or sent by registered or certified mail, upon the earlier of the expiration of three (3) days after deposit in United States post office facilities properly addressed with postage prepaid or acknowledgment of receipt or (iii) if delivered via overnight courier, on the next business day after deposit with an overnight courier. All such notices shall be addressed as follows: If to City, to: City Manager City of Miami 444 SW 2nd Avenue, 10`h Floor Miami, Florida 33130 With copies to: ACTIVE 44876773v6 4 Director of Real Estate Asset Management City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 City Attorney City of Miami 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 If to Development Manager, to: David Adler & Jonathan Raiffe Adler Group 3150 SW 38th Avenue Suite 530 Miami FL, 33146 With copies to: Nancy Lash, Esquire and Ryan Bailine, Esquire Greenberg Traurig, P.A. 333 SE 2nd Avenue, Suite 4400 Miami, FL 33131 If to Escrow Agent, to Chicago Title Insurance Company c/o Fidelity National Title Group 13800 NW 14th Street Suite 190 Sunrise, Florida 33323 Attn: Jennifer Corbo Phone: (954) 308-3492 By notice given as herein provided, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other parties of such notice and each shall have the right to specify as its address any other address within the United States of America. The parties hereto agree that the attorney for such party shall have the authority to deliver notices on such party's behalf to the other parties hereto. 12. Law Governing; Severability. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida without giving effect to the principles of conflicts of law thereof. If any term or provision of this Agreement is held to 5 ACTIVE 44876773v6 be or rendered invalid or unenforceable at any time in any jurisdiction, such term or provision shall not affect the validity or enforceability of any other terms or provisions of this Agreement, or the validity or enforceability of such affected terms or provisions at any other time or in any other jurisdiction. 13. Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. 14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. 15. Attorneys' Fees. Each party hereto shall be responsible for its own attorneys' fees and costs incurred in connection with this Agreement, including, but not limited to, any action, cause of action, claim, counterclaim, or proceeding brought by either party to enforce or interpret the terms of this Agreement. [SIGNATURES ON NEXT PAGE] 6 ACTIVE 44876773v6 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties on the date first above written. DEVELOPMENT MANAGER: LANCELOT MIAMI RIVER, LLC, a Florida limited liability company David `S /9d%r U�c� 1dk.2r By: Name Title: 7 ACTIVE 44876773v6 Att Tod Hannon, City Clerk ci.04, • ACTIVE 44876773v6 CITY: CITY OF MIAMI, a Florida municipal corporation By: Emilio T. G• zalez, City Manager Approv/: for legal form and sufficiency for t - . e a . nefit of the City "00A :,A,41110 eph He •• VIII7Special Outside Counsel 8 ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY By: • \_ 9-3--- Name: Title: 6c . ComC`Ct)C is cr C�- 9 ACTIVE 44876773v6 Exhibit A (Legal Description of the Land and City Parcel) Portion to be purchased by City of Miami from Lancelot Miami River LLC RUfLDLN'G 18 STORY PARE/. G GARAGE/ MULTI STORY OFFICE BUILDING "111 Portion owned by Lancelot Miami River LLC 10 ACTIVE 44876773v6 Exhibit B (Joint Consent Requisition Form) JOINT CONSENT REQUISITION FORM Project: New City Administration Facility The undersigned, and , being the of the CITY OF MIAMI, a Florida municipal corporation ("City"), and the of LANCELOT MIAMI RIVER, LLC, a Florida limited liability company ("Development Manager"), respectively, certify as follows: 1. That he/she is authorized to execute this Joint Consent Requisition Form on behalf of City and/or Development Manager, as applicable. 2. That the undersigned (on behalf of the City and/or Development Manager, as applicable) approve payment by the Escrow Agent for all of the work done or materials furnished as listed below. 3. That attached as Schedule A to this Joint Consent Requisition Form are copies of all of the applicable invoices, receipts, AIA G702 Payment Applications (if any), or such other reasonable evidence of sums required to be paid in connection with the work done or materials furnished as listed below (including any wire instructions). 4. All disbursements shall be made by the Escrow Agent to each Contractor/Party identified below by no later than (insert payment date, if left blank, then within two (2) business days of receipt by Escrow Agent of a fully executed Joint Consent Requisition Form). NAME & ADDRESS OF CONTRACTOR/ PARTY DESCRIPTION OF WORK PERFORMED OR MATERIALS FURNISHED METHOD OF PAYMENT: CHECK OR WIRE AMOUNT DUE LII $ 2. $ 3. $ 4. $ 5. $ TOTAL AMOUNT TO BE DISBURSED: $ 11 ACTIVE 44876773v6 ::IN WITNESS WHEREOF,: Development Manager and City hereto:have executed this: Joint Consent Requisition Form as of the last :day and year provided below: ACTIVE 44876773v6 DEVELOPMENT MANAGER: = : LANCELOT MIAMI RIVER, LLC, a Florida limited liability company Name Title: Date: CITY: CITY OF MIAMI, a Florida municipal corporation.. By: Name: Title: Date: • -12:i : Schedule A (Copies of Invoices, Receipts and/or Other Supportive Documents) 13 ACTIVE 44876773v6