Escrow Agreement w/ TCH 500 ALTON ,LLC 20 i 8 - cs
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of the
9 day of$SPT , 2020 by and between TCH 500 ALTON, LLC (collectively, the
"Developer"), the City of Miami Beach (the "City" or "Escrow Agent") (each, a "Party" and
collectively,the"Parties").
RECITALS
A. Developer and City have entered into that certain Development Agreement,dated
as of January 9,2019,pursuant to Sections 163.3220-163.3243,Florida Statutes,the Florida Local
Government Development Agreement Act, and Section 118-4 of the City's Code, as mended by
and that
that certain First Amendment to Development Agreement,dated as of December 18,
2019 certain Second Amendment to Development Agreement,dated as of March 17,2020(as amended,
the "Development Agreement"), which Development Agreement is recorded in Official
FlRecords
Book 31323, Pages 2781-3009 in and of the Public Records of Miami-Dade County,
, to
delineate the City's and Developer's responsibilities in connection with the Project (as that term
is defined in the Development Agreement) and the development, design and construction of the
Park Project(as that term is defined in the Development Agreement).
B. Section 16 of the Development Agreement provides that the Developer shall
contribute to the City's Art in Public Places fund the total of 1.5% of the "construction cost" of
the Park Project (the "Public Art Funds") no later than the date of execution of the construction
contract for the Park Project, and that the full amount of the Public Art Funds shall be dedicated
to Developer's use for public art within the Park Site (as that term is defined in the Development
Agreement).
C. In order to comply with the requirements of the Development Agreement and the
City's Art in Public Places Ordinance prior to the selection of the proposed artworks, Developer
has agreed to place in escrow with City,as
sEscrow
f this Agent,the sum of$95,812.00,to be disbursed
in accordance with the terms and provisions
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. The City and Developer agree that the foregoing recitals are true and correct and
are incorporated herein as if repeated at length.
2. Simultaneously with its execution of this Agreement,Developer has deposited with
Escrow Agent the sum of $95,812.00 (the "Escrowed Money"). The Escrow Agent hereby
acknowledges receipt of the Escrowed Money and agrees to hold the same in trust and disburse
the Escrowed Money in accordance with the terms of this Agreement. Escrow Agent shall be
obligated to invest the Escrowed Money in an interest-bearing account. All interest that accrues
on the Escrowed Money shall be the property of and disbursed to Developer. Escrow Agent shall
not be liable for any failure,insolvency or suspension of the depository institution.
3. Escrow Agent shall hold the Escrowed Money and disburse same as follows:
(a) Following the approval of the proposed artworks to be funded with the
Public Art Funds by either the City's Art in Public Places Committee or City Commission, then
Escrow Agent shall, upon written notice from Developer, return the Escrowed Money to
Developer, including interest. As provided by Section 16 of the Development Agreement, the
Developer shall have the unilateral discretion to request that the proposed artworks be considered
for approval by either the Art in Public Places Committee or the City Commission.
(b) In the event of any"Park Related Default"on the part of the Developer that:
(1)occurs prior to the City's approval of the artworks;and(2)causes the City to complete the Park
Project under the terms of Section 9 of the Development Agreement, the Escrow Agent shall
disburse the Escrowed Money to the City for use as public art within the Park Project.The Escrow
Agent shall disburse the accrued interest to Developer.
4. All notices and/or written statements given or made pursuant hereto, or for the
purposes of invoking or enforcing any of the provisions hereof, shall be in writing (by a Party or
by such Party's attorney), and shall be sent by (i) personal delivery, (ii) delivery by a recognized
overnight courier, (iii) United States mail, postage prepaid, registered or certified mail, or (iv)
facsimile,with proof of transmission, addressed as follows:
If to Developer: TCH 500 Alton,LLC
Attn: David Martin
do Terra Group
3310 Mary Street, Suite 302
Miami,FL 33133
With Copy to: Laura Gangemi,Esq.
Gangemi Law Group,PLLC
3310 Mary Street, Suite 303
Miami,FL 33133
If to City: Eric Carpenter,Assistant City Manager
City of Miami Beach
1700 Convention Center Drive,4th Floor
Miami Beach,FL 33139
With Copy to: City Attorney
City of Miami Beach
Office of the City Attorney
1700 Convention Center Drive,4th Floor
Miami Beach, Florida 33139
Attention: Rafael A. Paz, Deputy City Attorney
Personal delivery or overnight courier shall be effective upon receipt or as of the date of first
attempted delivery, and notice by mail shall be effective upon receipt as evidenced by a return
receipt, and notice by facsimile shall be effective upon transmission. Any of the foregoing
addresses may, at any time by giving ten (10) days prior written notice to the other addressees,
designate any other address in substitution of the foregoing address. The Escrow Agent shall
receive copies of all notices.
5. This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all constituting only one agreement. Executed counterparts received by
facsimile or electronically shall have the same validity as original counterparts.
6. The following provisions shall apply to the Escrow Agent and its duties and
obligations under this Agreement:
(a) The Escrow Agent shall have no duties or obligations hereunder except
those specifically set forth herein and such duties and obligations shall be determined solely by
the express provisions of this Agreement. The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith unless a court of competent jurisdiction determines that the
Escrow Agent's gross negligence or willful misconduct was the primary cause of the loss to a
Party hereto. The Escrow Agent shall not incur any liability for following the instructions set forth
in this Agreement or written instructions given by a Party hereto in accordance with this
Agreement. The Escrow Agent shall be entitled to assume that all notices and other documents
provided to it are authentic and that all persons and entities executing such notices or documents
have been duly authorized to do so.
(b) In the event the Escrow Agent shall be uncertain as to its duties or rights
under this Agreement or shall receive any instruction, claim or demand that, in the opinion of the
Escrow Agent, is in conflict with the provisions of this Agreement (any of the foregoing, an
"Escrow Agent Dispute"), the Escrow Agent shall be entitled to refrain from taking any action
with respect to such Escrow Agent Dispute until it shall be directed otherwise by a final and non-
appealable order of a court of competent jurisdiction or by an instrument signed by Developer and
the City. In the event of any Escrow Agent Dispute,the Escrow Agent shall be entitled to petition
a court of competent jurisdiction in the County of Miami-Dade, Florida to resolve such Escrow
Agent Dispute, Developer and the City each consents to the jurisdiction of any such court with
respect to any such Escrow Agent Dispute.
(c) The Escrow Agent shall be entitled to employ such legal counsel and other
experts as the Escrow Agent may deem necessary to advise the Escrow Agent in connection with
the Escrow Agent's duties hereunder,may rely upon the advice of such counsel,and may pay such
counsel reasonable compensation therefore which shall be paid by Developer. The Escrow Agent
shall be reimbursed by Developer for all reasonable fees and expenses incurred by the Escrow
Agent in connection with the performance of its duties and obligations under this Agreement and
reasonable courier fees incurred by the Escrow Agent in connection with any deliveries required
to be made by the Escrow Agent in connection with the performance of its duties and obligations
under this Agreement.
(d) The Escrow Agent shall not be deemed to have knowledge of any matter or
thing unless and until the Escrow Agent has actually received written notice of such matter or thing
and shall not be charged with any constructive notice whatsoever.
(e) In the event instructions from the Parties hereto would require the Escrow
Agent to expend any monies or to incur any cost, the Escrow Agent shall be entitled to refrain
from taking any action until it receives payment from the Developer for such costs if such costs
exceed$500.
(f) In the event the Escrow Agent is joined as a party to a lawsuit by virtue of
the fact that it is holding the Escrowed Money, the Escrow Agent shall, at its option, either: (a)
tender the Escrowed Money to the registry of the appropriate court; or(b) disburse the Escrowed
Money in accordance with the court's ultimate disposition of the case. In the event the Escrow
Agent tenders the Escrowed Money to the registry of the appropriate court and files an action of
interpleader naming Developer and the City and any affected third parties of whom the Escrow
Agent has received actual notice, the Escrow Agent shall be released and relieved from any and
all further obligation hereunder or in connection herewith.
7. Developer shall indemnify, defend and hold harmless the Escrow Agent and its
directors,officers,employees and agents from any loss,liability or expense incurred by the Escrow
Agent (including the fees and expenses of in-house or outside counsel) arising out of or in
connection with(a)Escrow Agent's execution and performance of this Agreement, except to the
extent that such loss, liability or expense is due to the gross negligence or willful misconduct of
the Escrow Agent, or (b) Escrow Agent's following of any instructions or other directions from
Developer or the City, except to the extent that its following any such instruction or direction is
expressly forbidden by the terms hereof. The provisions of this paragraph shall survive the
termination of this Agreement.
8. Time is of the essence in the performance of all provisions of this Agreement.Any
time period provided herein which ends on a Saturday, Sunday or legal holiday shall extend until
5:00 P.M. of the next full business day.
9. This Agreement does not alter or amend any obligations of Developer or the City
pursuant to the Development Agreement,which remain in full force and effect.
10. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Florida without regard to principles of conflict of laws.
11. This Agreement constitutes the entire agreement of the Parties hereto regarding the
subject matter hereof. There are no agreements or understandings, oral or written, between the
Parties hereto regarding the subject matter hereof that are not merged herein or superseded hereby.
12. In any legal, administrative or equitable action or proceeding (whether claim,
counterclaim, cross-claim or third party claim) commenced to enforce this Agreement or relating
to the subject matter hereof,the Parties hereby irrevocably waive(i)trial by jury,and(ii)any right
granted by any law for the prevailing party to recover attorney's fees from the non-prevailing party,
and each Party shall pay its separate attorney's fees and costs incurred in such proceedings,
including trials, appeals and all post judgment collection, execution or enforcement proceedings.
The Parties each warrant to the other that such Party will not, in the event of such litigation, seek
to enforce the foregoing waiver provisions. Each Party acknowledges that such warranty and this
provision are material inducements for such Party to execute this agreement.
13. No waiver of any right under this Agreement shall be valid unless it is contained in
a writing signed by the Party to be charged therewith.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth above.
CITY 0 MIAMI B ACH,
a Florida unicipal c *oration
1
By: It
Ji ly L. ;-"(7-es, City Manager
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Ci Cler
............. APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
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City Attorney w Date
DEVELOPER:
TCH 500 ALTON LLC,
a Delaware limite li company
By: . \
David Martin
Managing Member of T 500 Alton Member
Parent,LLC,which is the Managing Member
of T 500 Alton Member Holdings,LLC, which
is the Managing Member of TCH 500
Alton Holdings,LLC,which is the Managing
Member of TCH 500 Alton, LLC