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INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the "Agreement") is made and entered
into on r€/JlitlJHl.-{ Ir. 2005, by and among RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP, a Florida limited partnership (the "Indemnitor"), and each of (i) MIAMI
BEACH REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency"),
and (ii) CITY OF MIAMI BEACH, a Florida municipal corporation (the "City") (collectively,
the "Indemnitees").
RECITALS:
A. Indemnitor is the developer of the Royal Palm Crowne Plaza Hotel (the "Hotel"),
which Hotel was constructed on land that is being leased by Indemnitor from the Agency
pursuant to an Agreement of Lease dated May 28, 1998 and recorded in Official Records Book
18170, at Page 893, of the Public Records of Miami-Dade County, Florida (the "Lease"); and
B. Indemnitor and the Indemnitees have negotiated a settlement relating to certain
claims that have been made by each party against the other as generally reflected in that certain
Letter of Intent to Amend Royal Palm Crowne Plaza Resort Agreements dated November 25,
2003 (the "Letter of Intent"); and
C. Subsequent to the recording of the Lease, Indemnitor began the construction of
the Royal Palm/Shorecrest Crowne Plaza Hotel ("Hotel").
D. During the construction of the Hotel, Indemnitor encountered structural problems
with the original Royal Palm Hotel and soil contamination problems regarding the Land which
allegedly resulted in certain construction delays. A dispute arose amongst the parties regarding
the aforesaid problems and delays resulting in Indemnitor's refusal to pay certain Rental due
under the Lease and the Agency's refusal to pay claims related to said contamination and alleged
construction delays.
E. The parties respectively deny and dispute all such claims and allegations against
them, whether asserted or unasserted.
F. Subsequent to the Letter of Intent and prior to the closing on the documents
contemplated in the Letter of Intent, North Fork Bank filed a foreclosure complaint against
Indemnitor and Indemnitor subsequently agreed to pay North Fork Bank in full for its loan,
assign its option to pay the Purchase Price under the Lease to Royal Palm Hotel Property, LLC
who will then pay the Agency the Purchase Price under the Lease, terminate the Lease and
transfer the Hotel to Royal Palm Hotel Property, LLC.
G. The parties, wishing to avoid litigation and amicably resolve all matters existing
between them, entered into negotiations regarding the aforesaid disputes resulting in this
Agreement and other agreements.
H. Agency and Owner in their desire to maintain and fulfill their commitment to pro-
vide the African American community with opportunities in the hospitality industry, are willing
to amend the Royal Palm Crowne Plaza agreements and agree that the Hotel shall continue to
w.
comply with the Convention Center Agreement (which Indemnitor, as owner of the Hotel and on
behalf of the Hotel, has agreed to do) which provides, among other things, that the Hotel owner
and its successors and assigns make available Hotel facilities and services for support of the
Convention Center events and to undertake joint marketing efforts.
I. As a material inducement for and condition of Indemnitees entering into the
settlement, Indemnitor has agreed to provide an agreement by Indemnitor to indemnify, hold
harmless and provide defense for Indemnitees regarding or relating to certain challenges by third
parties as to the terms of the settlement between the parties as generally described in the Letter of
Intent and Recital F hereinabove.
NOW, THEREFORE, in consideration of the recitals, agreements, covenants and
premises contained herein, and for other good and valuable consideration, the receipt and ade-
quacy of which are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated
herein by this reference thereto.
2. Indemnification. The Indemnitor hereby agrees to defend, indemnify and hold
harmless the Indemnitees from, against, and with respect of any damages, causes of action, costs,
losses, debts, liabilities, judgments, claims, obligations, attorney's fees, (including those for
appeals or post judgment proceedings, if any), taxes, interest on taxes, tax penalties, or other
matters (the "Indemnified Matters") arising out of, or relating directly or indirectly to, any
challenges by any third parties to (i) the terms of the Letter of Intent and the settlement
documents executed in connection therewith of even date; (ii) the procedures used and timing of
the payoff of Indemnitor's loan from North Fork Bank, the payment of the Purchase Price under
the Lease, the termination of the Lease, the transfer of the Hotel to Royal Palm Hotel Property,
LLC and the waiver of certain Lease provisions by the Indemnitees to accomplish same; (iii) the
allowing of the condominiumization of the Shorecrest Portion of the Hotel; and (iv) the possible
interest and penalty interest for the late payment of sales tax due for back Rental; excluding,
however, any and all challenges directly or indirectly relating to (a) the payment and partial
waiver of Rental as contemplated by the Letter of Intent, as that term is defined in the Lease, that
otherwise would have been paid by Indemnitor to Agency but for the settlement, and (b) the
settlement of Indemnitor's alleged delay claims attributed to the environmental damage and
reconstruction delays which Indemnitor experienced during its development of the Hotel.
3. Indemnification in Connection with Legal Fees. Subject to the conditions set
forth in Sections 4 and 5, below the Indemnitor hereby agrees to indemnify and hold harmless
the Indemnitees with respect to any reasonable legal fees and costs of counsel (including those
for appeals or post judgment proceedings, if any) that may be incurred after the date of this
Agreement regarding the Indemnified Matters.
4. Retention of Counsel. Indemnitor shall have the right to designate counsel to
defend the interests of Indemnitees, which counsel shall be reasonably acceptable to Indemnit-
ees. If Indemnitor believes, from time to time and in good faith, that the defense of any Lawsuit
will be better served by other counsel, then In~~nitor shall be entitled, to retain and snbStitut~
other counsel to defend the Indemnitees regarding such Indemnified Matters on thirty (30) days
prior written notice to the Indemnitees, which substitute counsel shall be reasonably acceptable
to Indemnitees. Nothing herein shall preclude the Indemnitees from retaining other counsel of
their choice at their own expense to advise them with regard to the Indemnified Matters.
5. Cooperation. The Indemnitees and their lawyers will fully cooperate with the
Indemnitor in connection with any legal matters relating to the Indemnified Matters. The
Indemnitees agree to provide Indemnitor and its lawyers with access to all relevant information
concerning the Indemnified Matters and any other indemnified activity including but not limited
to access to the Indemnitees, their agents and employees for interviews and other litigation
related matters and copies of interview memoranda, evidence, records, computer data, expert
reports, advance notice of meetings with adverse parties, advance notice of and opportunity to
attend any interviews of any witnesses that are expected to provide information about the
Indemnified Matters and advance notice of and opportunity to attend meetings to prepare any
witnesses or Indemnitees for deposition.
6. Settlement.
(a) In no event will the Indemnitees admit any liability with respect to, or set-
tle, compromise or discharge, any lawsuit regarding the Indemnified Matters without the
Indemnitor's prior written consent, which consent shall be at Indemnitor's sole and exclusive
discretion. Indemnitor shall have no liability or obligation under this Agreement with respect to
any settlement into which any Indemnitee might enter without Indemnitor's prior written
consent.
(b) The Indemnitees hereby consent to, and agree to execute, any settlement,
compromise or discharge of any lawsuit or any part thereof regarding the Indemnified Matters
which Indemnitor may request, which by its terms obligates Indemnitor to pay the full amount to
be paid to settle, compromise, discharge or otherwise resolve such lawsuit or part thereof
regarding the Indemnified Matters and implies no admission of liability on the part of the
Indemnitees. Any settlement by Indemnitor that does not include the full release of Indemnitees
shall not affect Indemnitor's obligations under this Agreement.
7. Non-Disparagement. Each party agrees not to take any action or make any
statement which disparages, criticizes, or places in a negative light the other, irrespective of
whether such statements would be actionable under statutory or common law liability theories.
This paragraph does not relate to statements made in good faith in the event of litigation.
8. Confidentiality. [8Ml] The parties hereto acknowledge that the City and the
Agency are governmental entities and subject to the open Government Provisions of Chapter
286, Florida Statutes, and the Public Records Provisions of Chapter 119, Florida Statutes.
Further, the Amendment to Garage Easement. Agreement, the Amendment to Declaration of
Covenants and Restrictions and the Special Warranty Deed are to be placed of Public Record
simultaneously with the execution of all closing documents. Subject to the aforegoing and to the
extent permitted by law, all other documents shall be retained, unpublished by either party to this
Agreement and neither party shall voluntarily disclose their contents. Involuntarily disclosure
(which is permitted), for purposes of this paragraph, shall mean disclosure when required by the
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above referenced Statutes or any other applicable laws as well as (a) as may be hereafter
mutually agreed to in writing, (b) as ordered by a judicial tribunal, and (c) to any of such parties'
directors, officers and employees and managers or their advisors who need to know such
information for the purpose of dispensing legal advice or determining insurance coverages in
connection with any of the Indemnified Matters. In case of circumstances other than those set
out above, the City Attorney shall be the sole determinant as to whether a demanded disclosure is
one which is required on an involuntarily or voluntary basis. [BM2]
9. Severability. If any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining provisions of
this Agreement.
10. Miscellaneous.
(a) This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida, both substantive and remedial.
(b) This Agreement shall be binding upon the Indemnitees, the Indemnitor,
and their respective successors and assigns. No assignment of this Agreement or of any duty or
obligation hereunder shall be made (i) by the Indemnitor without the prior written consent of the
Indemnitees, or (ii) by the Indemnitees without the prior written consent of the Indemnitor. Any
such consent shall be in such party's sole and exclusive discretion.
(c) This Agreement represents the final agreement of the parties hereto
regarding the subject matter hereof and supersedes any other oral or written representations or
agreements between the parties hereto relating to the subject matter hereof. Neither party has
relied on any representations not set forth in this Agreement.
(d) No amendment, modification, termination or claimed waiver of any of the
provisions hereof shall be valid unless in writing and signed by the party or an authorized repre-
sentative of the party against whom such modification is sought to be enforced.
11. Jurisdiction and Venue. The parties acknowledge that a substantial portion of the
negotiations, anticipated performance and execution of this Agreement occurred or shall occur in
Miami-Dade County, Florida, and accordingly each of the parties hereto irrevocably and uncon-
ditionally (a) agrees that any suit, action or legal proceeding arising out of or relating to the
enforcement of this Agreement shall be brought exclusively in the State or Federal courts in
Miami-Dade County, Florida; (b) consents to the jurisdiction of such court in any suit, action or
proceeding; and (c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts.
12. Counterparts. This Agreement may be executed in counterparts, each of which
will be deemed an original, but all of which together shall constitute one and the same instru-
ment.
13. No Presumptions. The parties have participated jointly in the negotiation and
drafting of this Agreement with counsel. In th~ ~_ent an ambiguity or question of intent or inter fi-
pretation arises, this Agreement shall be construed as if drafted jointly by the parties and no pre-
sumption or burden of proof shall arise favoring or disfavoring any party by virtue of the author-
ship of any provisions of this Agreement.
14. Survival: This Agreement shall survive the closing of the transactions
contemplated in Recital F hereinabove.
15. WAIVER OF JURY TRIAL. INDEMNITOR AND INDEMNITEES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR INDEMNITEES TO ENTER
INTO THIS AGREEMENT. FURTHER, BOTH INDEMNITOR AND INDEMNITEES
HEREBY CERTIFY TO EACH OTHER THAT NO REPRESENTATIVE OR AGENT OF
EITHER ONE OF THEM, NOR THEIR COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE THAT EITHER ONE OF THEM WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION.
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
RDP ROYAL PALM HOTEL LIMITED PART-
NERSHIP, a Florida limited partnership
e L.t.. r
By: PADC HOSPITALITY CORPORATION I,
a c oration, as General Partner
By:
Peebles, President
BEFORE ME, the undersigned authority, personally appeared R. Donahue Peebles, as
President of P ADC HOSPITALITY CORPORATION I, a Florida corporation, on behalf of such
corporation, and as General partner of RDP ROYAL PALM HOTEL LIMITED P ARTNER-
SHIP, a Florida limited partnership, on behalf of such limited partnership. He is personally
~wn to ~r produced a valid Florida driver' license as i . cation. -
~V'''~ Nathalie Legagneur
{!w_ ~ Commission # 00385416
~'!If!!I-A.i Expires February 5. 2009
~W,~'1landed TIllY Foln .1_, ,.... 100415-70111
4.(""'
Notary Public-State 0
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My Commission Expires:
Commission Number:
Wi~ ~\~
Print Name: .2p.Ah"}. ~(~t \ ~
By:
ATTEST:
By: tAw}' Ik:d~
Robert Parcher, Secretary
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, personally appeared David Dermer, Chairman
and Robert Parcher, Secretary of the MIAMI BEACH REDEVELOPMENT AGENCY, a public
body corporate and politic, to me known to be the persons who signed the foregoing instrument
and acknowledged the execution thereof to be the act and deed of said Agency for the uses and
purposes therein mentioned, and that they affixed thereto the official seal of said Agency. Each
such individual is Qersonally known to me or produced a valid drive's license as identification.
h Witness my hand and official seal in the County and State last aforesaid this JOr{.y of
~7 ,2005.
Notary Public-State of Florida at Large
Commission Number: ])j) 2(.,.,;} 9:? g
My Commission Expires:
"'"'''''' YAMILEX MORALES
...\ p.Y P(J. I,,,
!~m<" "~\Notary Public. State or Florida
;; . . EMiComt.1I.0hExplle5Feb 15.2009
;~'Ji ?4} Commission # 00 362988
11"I,vrl~<S:""'''' Bonded By NatIonal Notary Assn.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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1L!t{:!1~ncy.~ .
General Coun~\t, ~ '
CITY OF MIAMI BEACH,
a Flori m icipal corporation
Witnesses:
12wi C\ c..~,\~
Print Name: ~ ~ J. ~JV\\ ff---.-
By:
'~J A4-
Print Name: '. IJry ~ 6-~tI
ATTEST:
By: ~Y~ck
Robert Parcher, City Clerk
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, personally appeared David Dermer, Mayor and
Robert Parcher, City Clerk of the CITY OF MIAMI BEACH, a Florida municipal corporation,
to me known to be the persons who signed the foregoing instrument and acknowledged the
execution thereof to be the act and deed of said City for the uses and purposes therein mentioned,
and that they affixed thereto the official seal of said City. Each such individual is ~()nally
known to me or produced a valid drive's license as identification.
en" Witness my hand and official seal in the County and State last aforesaid this /S1ayof
~!~ ,2005.
/Yu>~
yam; / eX fhlJ III / es
t lie-State of Florida at Large
Commission Number: lID -jb~ 9'g g--
My Commission Expires:
",,,"",, YAMILEX MORALES
"""a't PfJ. I,
I~m~ "(1:'\ Notary Public . State or Florida
g. * : . EMtCam1lsslol1&P8SFeb 15. 2CXJ9
\;J, :/s1"i Commission # DO 362988
"~ OF f'~" By ~'-"--,............., A.__
I,....",,' . Bonc:Ied I............ "'" '~''''I' 1"WiM11.
F:\Minsker\C.M.B.\CrownePlaza\Amend to Lease\RDP Royal Palm - Indemnification AgreementV5,doc
APPROVED AS
FORM & LANGUA
& FOR EXECUTI N
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I-
A)A lMO'IJilU._ ~ '1"6'5
~ Date
[8MI ]REVISED TO COMPLY WITH SUNSHINE LAWS, ETC.
[8M2] WE WILL NOT AGREE TO ANY TERM FOR THIS INDEMNIFICATION IF THE STATUTES OF
LIMITATIONS HAVE RUN, THE INDEMNITOR CAN USE THAT AS A DEFENSE