Loading...
Section B Escrow Agreement ESCROW AGREEMENT , , THIS ESCROW AGREEMENT (the "Agreement"), dated as of the ~){S+ day of (J(~TG-/)vti- , 1997, between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency"); the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (the "City"); RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, a Florida limited partnership ("RDP"); and BLOOM & MINSKER (the "Escrow Agent"). RECIT ALS: A. In February 1993, the City Center/Historic Convention Village Redevelopment and Revitalization Area was officially established by the adoption of the Redevelopment Plan, resulting from the combined efforts of the City, the Agency, Metropolitan Dade County and the State of Florida. The purposes of the Redevelopment Plan are, among other things, to eliminate blight, establish redevelopment, foster the development of convention quality hotels, ancillary improvements and facilities, and necessary linkages to the Miami Beach Convention Center. B. Pursuant to the Redevelopment Plan, the Agency acquired the property commonly known as the Royal Palm Hotel, having a street address of 1545 Collins Avenue, Miami Beach, Florida, which it has agreed to make available for the Hotel. The Royal Palm Hotel is a part of the Land. C. In furtherance of the Redevelopment Plan, the Agency published a Request for Proposals (the "RFP") dated December 27, 1995 and amended on January 2, 1996, January 3, 1996 and March 5, 1996 seeking, among other things, proposals for the development and operation of a convention center hotel to be owned at least 51 % by African-Americans. D. By virtue of a resolution adopted on June 5, 1996, after a public review process, the Agency selected RDP's predecessors in interest, RDP Royal Palm Hotel Limited Company and RDP Shorecre-st Hotel Limited Company (collectively, "RDP's Predecessor"), from among the groups which submitted proposals pursuant to the RFP and directed representatives of the Agency to negotiate the terms under which RDP's Predecessor or their affiliates would develop, construct, own and operate the Hotel in accordance with requirements of the RFP. E. The Agency and RDP's Predecessor entered into a Letter of Intent (as the same may have been amended from time to time, the "Letter of Intent"), dated March 5, 1996, and approved by the City, which, among other things, provides for the development, construction, furnishing and equipping of the Hotel. F. Representatives of the Agency, the City, and RDP, with the advice and assistance of counsel, have agreed on the terms of the definitive documents listed on Exhibit A, attached 001 '~~ hereto and made a part hereof, numbered 1 through 8, necessary to implement the transactions contemplated by the Letter of Intent. G. By resolutions adopted October 21, 1997, the Agency and the City have approved the transactions contemplated by the Escrowed Documents, and have authorized and directed the appropriate officers of the Agency and the City to date, execute and deliver the Escrowed Documents and cause them to become effective, subject to the provisions of this Agreement. H. By resolution adopted October 20, 1997, RDP has approved the transactions contemplated by the Escrowed Documents, and has authorized and directed the appropriate officers of the general partner of RDP to date, execute and deliver the Escrowed Documents and cause them to become effective, subject to the provisions of this Agreement. NOW, THEREFORE, in exchange for the mutual promises contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, the parties to this Agreement agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein. 2. Definitions. For purposes of this Agreement, although the Ground Lease, as defined in Exhibit A, is one of the Escrowed Documents, all defined terms, denoted by capitalization, herein used shall have the same meanings as ascribed to such terms in the Ground Lease, as defined in Exhibit A, except as otherwise expressly noted herein. 3. Items in Escrow. The Agency, the City, and RDP (each a "Party" and collectively, the "Parties ") hereby deliver to Escrow Agent the original Escrowed Documents, including but not limited to all exhibits and other attachments as provided in each such document, numbered 1 through 8 in Exhibit "A" (collectively, the "Escrowed Documents") and Escrow Agent hereby acknowledges receipt of said documents. Each of the Escrowed Documents have been executed by the parties thereto. The Escrowed Documents numbered 1 through 8 have been executed by the parties thereto, but are in escrow,. and therefore remain undated, not effective and unenforceable, until such time as the Escrowed Documents are released from escrow in accordance with the terms of this Agreement. 4. Agreement of Escrow Agent. Escrow Agent agrees to act, without fee, in accordance with the terms and conditions of this Agreement and the instructions contained herein. 5. Instructions and Conditions. Escrow Agent shall hold all the Escrowed Documents in escrow until the earlier of (a) the satisfaction or waiver by the Parties, each in its sole and absolute discretion for any reason and/or no reason whatsoever, of those certain conditions precedent enumerated on Exhibit B, attached hereto and made a part hereof (collectively, the "Conditions") or (b) the earlier to occur of the following (each a "Termination Date"): (i) the failure of RDP to meet Condition No.2 on Exhibit "B" attached hereto within fourteen (14) days 2 002 \~\ after the date hereof; (ii) Condition No.4 on Exhibit liB II attached hereto not being satisfied on or before the date that is seventy five (75) days after the date hereof; (iii) a change in circumstances such that any Conditions set forth in Exhibit liB II which may have been satisfied by RDP during the term of this Escrow are no longer effective or in force; or (iv) one (1) year from the date hereof; provided, however, RDP shall have the right to terminate this escrow upon written notice to Escrow Agent, the Agency, and the City in the event that the guaranteed maximum price contract described in item 4 of the Conditions expires due to the general contractor's inability or unwillingness to hold said guaranteed maximum price; provided further, however, the Agency or the City shall have the right to terminate the Escrow Agreement upon written notice to Escrow Agent and RDP in the event Condition number 6 is not met within fourteen (14) days of the date of this Escrow Agreement. If by the date that is one year after the date of this Escrow Agreement, Escrow Agent has not been notified in writing by the Parties that all of the Conditions have been satisfied or waived by the Parties in accordance with the provisions of this Agreement or that such one year period has been extended or in the event RDP, the Agency or the City has terminated this Agreement in accordance with the immediately preceding sentence, or in the event RDP, the Agency, or the City has notified Escrow Agent that the Termination Date has occurred, then Escrow Agent is instructed to destroy all signatures on the Escrowed Documents. Provided that one year has not passed from the date of this Agreement, upon Escrow Agent's receipt of written notice from the Parties that all of the Conditions have been satisfied or waived in accordance with the provisions of this Agreement, Escrow Agent is instructed to deliver the Escrowed Documents to the Parties at the place and time designated by the Parties in their notice to Escrow Agent of such satisfaction or waiver whereupon, provided delivery was proper, the Escrow Agent shall be released from any further obligations hereunder. Any Party or Escrow Agent may, at its option, demand a receipt acknowledging delivery of any Escrowed Documents. 6. Effective Date: Additional Signatures. Upon release of the Escrowed Documents in accordance with the provisions hereof, the consummation of the transactions contemplated by the Letter of Intent shall occur. In accordance therewith, as to the Escrowed Documents numbered 1 through 8, (a) the officers for the Parties shall (i) make any necessary revisions to the Escrowed Documents a~ mutually agreed to by the Parties each in its sole and absolute discretion and (ii) date the Escrowed Documents as of the date of such release, which date shall be the effective date thereof, (b) because the Parties to the Escrowed Documents have executed one (1) original of each of the Escrowed Documents, upon release of the Escrowed Documents in accordance with the provisions hereof, the Parties to the Escrowed Documents shall execute additional originals thereof, in order that each Party have original fully executed counterparts of the Escrowed Documents and (c) the Parties shall take or cause to be taken such further actions and execute and deliver or cause to be executed and delivered such other ancillary instruments as may be reasonably requested by the other Parties in order to consummate the transactions contemplated by the Escrowed Documents (including, without limitation, the closing of the construction financing described on Exhibit B). 3 003 \~ 7, Disputes. (a) In the event of any disagreement between the Parties resulting in conflicting instructions to, or adverse claims or demands upon Escrow Agent with respect to the release of the Escrowed Documents, Escrow Agent shall refuse to comply with any such instruction, claim or demand so long as such disagreement shall continue, and in so refusing Escrow Agent shall not release the Escrowed Documents. Escrow Agent shall not be or become liable in any way to any of the Parties for its failure or refusal to comply with any such conflicting instructions or adverse claims or demands, and it shall be entitled to continue so to refrain from acting until such conflicting or adverse demands shall have (i) been settled by agreement and Escrow Agent receives written notice thereof by all the Parties or (ii) finally been determined by a court of competent jurisdiction, (b) If any of the Parties or Escrow Agent shall be in disagreement about the interpretation of this Agreement, or about their respective rights and obligations, or about the propriety of any action contemplated by Escrow Agent, or if Escrow Agent receives or becomes aware of conflicting demands or claims with respect to this escrow or the rights of any of the Parties hereto or documents deposited herein or affected hereby, Escrow Agent may, but shall not be required to, file an action in interpleader to resolve the disagreement or dispute and, upon filing such action, Escrow Agent shall be released from all obligations under this Agreement. If any action arising out of this Agreement is commenced by any of the Parties, Escrow Agent may deposit the Escrowed Documents with the clerk of the court in which such action is commenced or pending and, upon depositing the Escrowed Documents, Escrow Agent shall be released from all obligations under this Agreement. 8. Indemnitv. (a) Each of the Parties hereby jointly and severally agree to save harmless, indemnify and defend (with counsel chosen by Escrow Agent) Escrow Agent for, from and against any loss, damage, liability, judgment, cost and expense whatsoever, including attorneys' fees (either paid to retained attorneys or the fair value of services rendered to itself) through all applicable levels and post-judgment proceedings, suffered or incurred by it, by reason of, or on account of, any misrepresentation made to it or its status or activities as Escrow Agent under this Agreement, except for any loss, damage, liability, judgment, cost or expense resulting from gross negligence or willful misconduct on the part of Escrow Agent. (b) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it in respect of the subject matter of this Agreement unless requested to do so by all the Parties and indemnified to Escrow Agent's satisfaction against the cost and expense of such defense. If any such legal proceeding is instituted against it, Escrow Agent agrees promptly to give notice of such proceeding to the Parties. Escrow Agent shall not be required to institute legal proceedings of any kind. 4 004 ~ 9. Liability. Duties and Responsibility of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement. Escrow Agent shall not be deemed to have any implied duties or obligations under or related to this Agreement. (b) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and (iii) assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency of or corrections to form, manner of execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing any instrument. (c) It is acknowledged that Escrow Agent is counsel for the Agency and the City. It is agreed that Escrow Agent shall not be disabled or disqualified from representing the Agency and the City, its officers, directors, employees or agents in connection with any dispute or litigation which may arise out of or in connection with this Agreement or the transactions contemplated by the Escrowed Documents as a result of Escrow Agent acting as Escrow Agent under this Agreement and RDP waives any claim of or right to assert a conflict of interest arising out of or in connection with the foregoing, 10. Notices. Whenever it is provided herein that notice, demand, request, consent, approval or other communication shall or may be given to, or served upon, any of the Parties, or whenever any of the Parties desires to give or serve upon the other any notice, demand, request, consent, approval or other communication with respect hereto, each such notice, demand, request, consent, approval or other communication shall be in writing and shall be effective for any purpose only if given or served by (a) certified or registered U.S. Mail, postage prepaid, return receipt requested, (b) personal delivery with a signed receipt or (c) a recognized national courier service, addressed as follows: If to RDP: RDP Royal Palm Hotel Limited Partnership 701 Brickell A venue Suite 2040 Miami, FL 33131 Attention: R. Donahue Peebles with a copy to: 5 005 \~ \ RDP Royal Palm Hotel Limited Partnership 2600 Virginia Avenue, N. W. Suite 606 Washington, DC 20037 Attn: S.P. Newell, Executive Vice President Holland & Knight LLP 701 Brickell Avenue, Suite 3000 Miami, Florida 33131 Attention: Stuart K. Hoffman, Esq. If to the Agency or the City: Miami Beach Redevelopment Agency Executive Director 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: Miami Beach Redevelopment Agency General Counsel 1700 Convention Center Drive Miami Beach, Florida 33139 and to: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: City of Miami Beach City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139 and with a copy to: 6 006 \11 Bloom & Minsker 800 Brickell Avenue, Suite 1100 Miami, Florida 33131 Attn: Joel N. Minsker, P.A. If to Escrow Agent: Bloom & Minsker 800 Brickell Avenue, Suite 1100 Miami, Florida 33131 Attn: Joel N. Minsker, P.A. Any such notice may be given, in the manner provided in this Section, on any Party's behalf by its attorneys designated by such Party by notice hereunder. Every notice given hereunder shall be effective on the date actually received, as indicated on the receipt therefor, or on the date delivery thereof is refused by the intended recipient thereof. Any Party hereto may, by notice delivered to Escrow Agent and the other Parties, change its address for purposes of this Agreement. 11. Modification. No covenant, agreement, term or condition of this Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by all Parties. Escrow Agent shall not be bound by any modification of this Agreement, unless there is delivered to Escrow Agent a written modification signed by all the Parties. No such modification shall, without the written consent of Escrow Agent, modify the provisions of the Agreement relating to the duties, obligations or rights of Escrow Agent. 12. Successors. This Agreement shall be binding upon and inure to the benefit of the Parties, their heirs, executors and administrators; provided, however, that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties hereto without the prior written consent of the other Parties. 13. Construction. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflict of laws. 14. Miscellaneous. The titles to the paragraphs or sections of this Agreement are solely for the convenience of the Parties and Escrow Agent and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Agreement. All references in this Agreement to the terms "herein", "hereunder" and words of similar import shall refer to this Agreement, as distinguished from the paragraph or Section within which such term is located. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall represent one instrument. If any provision of this Agreement or the 7 007 f\ application thereof to any person or circumstances is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is held invalid and unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15. Letter of Intent. The Letter of Intent is hereby terminated except that the provisions of Paragraph 15.13 shall survive said termination and are incorporated herein. 16. Design Development Expense Reimbursement. The Parties acknowledge that RDP will. of necessity, incur significant out-of-pocket costs for professional architectural design, engineering and other technical advice and services in connection with the design, construction and permitting of the Hotel (the "Design Costs") prior to the consummation of the transactions contemplated by the Escrowed Documents. In consideration of the foregoing, and in order to insure the timely consummation of the transactions contemplated by the Escrowed Documents, RDP and the Agency have agreed that RDP's Design Costs (which Design Costs incurred by RDP through the Termination Date are hereinafter referred to as the "Total Design Costs"), will be subject to reimbursement, as follows: If the Conditions are not satisfied or waived by all Parties by the Termination Date and the Parties fail to consummate the transactions contemplated by this Escrow Agreement and the Escrowed Documents, for any reason other than the Agency failing to acquire fee title to the Shorecrest Improvements Land (including the existing leasehold interest therein), RDP shall bear one-half (1/2) of the Total Design Costs and the Agency shall pay to RDP one-half (112) of the Total Design Costs (but in no event more than $300,000), no later than fifteen (15) days after the later of (i) the Termination Date and (ii) submission by RDP to the Agency of written documentation verifying that such Total Design Costs have been incurred. Total Design Costs shall not include any monies spent by RDP or RDP's Predecessor prior to June 6, 1996 and shall not include any monies spent by RDP or RDP's Predecessors towards deposits relating to the purchase of the Shorecrest Hotel. 17. Entire Agreement. This Agreement and the Addendum to Escrow Agreement of even date between the parties hereto contains all of the promises, agreements, conditions, inducements and understandings between the Parties and there are no other promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them relating to the escrow of the Escrowed Documents. [EXECUTION ON FOLLOWING PAGE] 8 008 ~ EXECUTION IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed this Agreement as of the day and year first above written. MIAMi BEACH REDJt:VELOPMENT AGENCY \ / /.\ ( WITN~SSRS' 7 APPROVED AS TO / /7 '-,) ') / ~.(,~c.c",(t,-::J>~L----' .. . / ,n FORM & LANGUAGE: /- / L L (~- '_. f"\-L./-(.XA-Nj.:)4i! '.J. .'ff'\('H.\'I~ ,':> & FOR EXECUTlON By: , '-' Seyll'f6li?-Ge I ber Chairman ~- Q~ ~".AI:,./J", Ic)~./J'7I ~ _.4- l~i211"r7 . \.Q(.-'..D . 'RedeY opment AgV10f D~ate: \ ,. -< f'hu!iEIJaG. Zj G."",oI Coo.." A TIEr;: \ () (SEAL) By:_f\f)~CfM(k Robert Parcher Secretary I 1011-- I _ q ( APPROVED AS TO>ate: FORM & lANGUAGE & FOR EXECUTIO~TY OF MlAMI BEACH, FLORIDA WITNESSES: ;\ ! " 1!L~ I ~ei~. . " ..- i 7 '. \. 0J0~,,,.Y:L1C) De.,.--,.. 1941/'72 A ..' . .~ A- dipi "';)" k 3 T,1 (' """,.,. C.1y Attomey #1!! . f J--:-, . i . Seymofr p-elbe;--/ Mayofl : '" { L'1i.. I I q 7 Date: (SEAL) ATTl H By: f)~r ~, obert Parcher City Clerk IO{2-l[ql Date: 9 009 f*1 RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, a Florida limited partnership WITNESSES: By: PADC Hospitality Corporation I, a Florida corporation, General Partner ~~Jf Nam : R. nahue Fe es ~ Title: President l2J. Date: ((> L I q 7 The undersigned agrees to act as Escrow Agent under the terms and conditions of this Agreement and is executing this Agreement solely for such purpose. BLOOM & MINSKER By: Joel N. Minsker, P.A. \ 10 010 i~....~ III . \ Exhibit A List of Escrowed Documents 1. Agreement of Lease between the Agency, as Owner, and RDP, as Tenant (the "Ground Lease"). 2. Hotel Development Agreement between the Agency, as Owner, and RDP, as Developer (the "HDA"). 3. Garage Easement Agreement between the Agency, as Grantor, and RDP, as Grantee (the "GEA"). 4. Owner. Convention Center Agreement between the City, as Owner, and RDP, as Hotel 5. the City. Completion Guarantee from R. Donahue Peebles, as Guarantor, to the Agency and 6. Special Warranty Deed for existing improvements, between the Agency, as Grantor, and RD P, as Grantee. 7. Declaration of Covenants and Restrictions by the Agency, as Owner. 8. UCC-l Financing Statement between RDP and the Agency. 9. Agency. Constructa Agreement between RDP, Jefferson Plaza, Ltd., the City and the 011 1 f1 Exhibit B Conditions 1. The title matters as to the Lease and the Garage Easement Agreement shall not be varied, modified or added to in any manner whatsoever. Toward that end, the Agency and the City will not permit or suffer any encumbrance, mortgage, pledge or hypothecation of its interest in the lands which are the subject of those two documents. Notwithstanding the foregoing, with respect to the GEA, the Agency and the City shall be permitted to mortgage, pledge or hypothecate their interest in the land which is the subject of the GEA and to grant easements and leases thereon provided said instruments do not adversely affect the easement and rights granted to RDP pursuant to the GEA and provided further that any such mortgage, pledge or hypothecation is subordinate to the rights of RDP under the GEA. 2. RDP shall have executed a commitment for a first mortgage construction loan from Capital Bank and a commitment for permanent mortgage financing from GMAC, on terms and conditions satisfactory to RDP; provided that said terms and conditions are not materially different than those contained in those certain commitment letters form Capital Bank dated October 2, 1997 and from GMAC dated October 15,1997, and provided further that said commitments are in full force and effect and are consistent with the Development Budget contained in the HDA. Each of the commitments shall not contain any conditions relating to the respective lenders approving the form and content of the Escrowed Documents. 3. The Escrowed Documents shall not have been revised without the prior written agreement of all the Parties, each in its sole and absolute discretion, for any reason or no reason whatsoever. 4. RDP shall present to the Agency and the Agency shall have approved a guaranteed maximum price contained in a construction contract that is in full force and effect for construction of the Hotel contemplated by the Ground Lease and the HDA, which approval shall not be unreasonably withheld or delayed if said price is consistent with the Development Budget contained in the HDA. However, if the price exceeds the amount in the Development Budget, or if the Agency's hotel consultant determines that the guaranteed maximum price submitted by the general contractor is below the estimated cost of construction of the Hotel as calculated by the Agency's hotel consultant according to the approved plans and specifications, then in those events, the Agency's approval shall be at Agency's sole and absolute discretion, for any reason or no reason whatsoever. In such an event, RDP shall provide additional equity to make up the excess within 15 business day from the date of written notice from the Agency of the foregoing deficiency. Any dispute relating to this paragraph 4 shall be resolved by expedited binding arbitration in accordance with Article 22 of the HDA as if such dispute were a "Development Dispute" as such term is defined in the HDA, and any action to be taken pursuant to this paragraph 4 will be suspended during the pendency of the arbitration proceeding. 5. RDP shall deliver upon breaking of this Escrow the Certificate contemplated by 012 \~ ,J '\. Section 27.I(b) of the Ground Lease. 6. (a) RDP shall furnish proof to the Agency and the City, which proof shall be satisfactory to the Agency and the City in the sole and absolute discretion of each of them, for any reason or no reason whatsoever, to the effect that (i) African-American Persons (as such term is defined in the Lease) own a Substantial Controlling Interest (as defined in the Lease), in RDP, (ii) that the African- American Persons who are partners of RDP have made capital contributions to RDP in an amount not less than $3,000,000, and that Capital Bank, GMAC and Crowne Plaza are satisfied that such capital contributions have been made, and (iii) that Crowne Plaza, Capital Bank and GMAC are willing to proceed with the financing and construction of the Hotel, and that the foregoing expression of willingness to proceed is made with an awareness of the filing in the Circuit Court of the 11 th Judicial Circuit in and for Dade County, Florida, on October 15, 1997, of that certain complaint styled Cecile D, Barker. Plaintiff, v. R. Donahue Peebles. R.D.? Development Corporation, R.D.P. Assessment Appeals Services, Inc. and Peebles Atlantic Development Corporation, Defendants, and (iv) Capital Bank and GMAC have approved the reconstituted membership of RDP as set forth in the executed Limited Partnership Agreement ofRDP Royal Palm Hotel Limited Partnership; and (b) there shall have been delivered to the City and the Agency an opinion of counsel, in form and substance satisfactory to each of them in its sole and absolute discretion, for any reason or no reason whatsoever, to the effect that RDP is a limited partnership validly organized and existing under the laws of the State of Florida, that RDP has taken all actions necessary to authorize the transactions contemplated by the Escrow Agreement and each of the Escrowed Documents listed in Exhibit A to the Escrow Agreement, that each of the Escrowed Documents are duly authorized to be executed for and on behalf ofRDP, and that each of such Escrowed Documents, when executed by RDP, will be a legal and binding agreement ofRDP, enforceable in accordance with its terms (except as such enforcement may be limited or otherwise affected by bankruptcy, reorganization, insolvency, moratorium or similar debtor relieflaws, the obligation of the parties to deal reasonably and in good faith and equitable principles generally); and (c) the City and the Agency, each in its reasonable discretion, shall have approved the form and substance of the Limited Partnership Agreement ofRDP Royal Palm Hotel Limited Partnership, the Management Agreement between RDP and Holiday Hospitality Corporation ("Holiday"), as Hotel Manager, and the Attornment Agreement between the Agency and Holiday, provided that such documents are not materially changed from the drafts thereof submitted to the City and the Agency on October 16, 1997, and such documents shall not be subsequently amended prior to the release of escrow. 013 ~ VI ADDENDUM TO ESCROW AGREEMENT This Addendum to Escrow Agreement (the "Addendum") is d~ted as of (:.)<:-tof3f-(2 (5( , 1997 and is by and between the Miami Beach Redevelopment Agency, a public body corporate and politic (the" Agency"), the City of Miami Beach, a Florida municipal corporation (the "City"), RDP Royal Palm Hotel Limited Partnership, a Florida limited partnership ("RDP"), and Bloom & Minsker, as escrow agent (the "Escrow Agent"). RECITALS WHEREAS, the parties to this Addendum are parties to that certain Escrow Agreement, dated as of the date hereof, pertaining to agreements relating to the ownership, development and operation of the Royal Palm Crowne Plaza Resort (the "Hotel") to be located in the vicinity of 15th Street and Collins Avenue, Miami Beach, Florida; and WHEREAS, the parties would like to supplement the terms of the Escrow Agreement with this Addendum. NOW, THEREFORE, in exchange for the mutual promises contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, the parties agree as follows: 1. RECIT ALS, The above recitals are true and correct and are incorporated as a part of this Addendum. 2. RATIFICATION. The Escrow Agreement is hereby ratified and, except as modified or supplemented by this Addendum, remains unchanged, 3. DEFINED TERMS, Any defined terms, denoted by capitalization, used in this Addendum and not defined herein, have the definitions given in the Escrow Agreement. 4. INCORPORATION: CONFLICT. This Addendum is incorporated into the Escrow Agreement. In the event of a conflict between the Escrow Agreement and this Addendum, this Addendum governs. 5, RELEASE. RDP acknowledges, and shall cause RDP Royal Palm Hotel Limited Company and RDP Shorecrest Hotel Limited Company (collectively, the "Affiliates") to acknowledge, (i) that the Agency is attempting to obtain title to the property commonly known as the Shorecrest Hotel, having a street address of 1535 Collins Avenue, Miami Beach, Florida, including but not limited to the ground lessor and the ground lessee's interests pertaining to the Shorecrest Hotel (collectively, the "Shorecrest"), and (ii) that the Agency has filed eminent domain proceedings in connection therewith. RDP agrees, and shall cause the Affiliates to agree, that neither RDP nor the Affiliates have any objection to the Agency acquiring the Shorecrest through eminent domain proCeedings, a settlement of such eminent domain proceedings or a purchase and sale contract, notwithstanding that the Affiliates may be parties to certain contracts to acquire the Shorecrest. RDP agrees, and shall cause the Affiliates to agree, to release the Agency and the City from any and all liability, 014 ~\ including but not limited to as a result of tortious interference claims, incurred in connection with the Agency's or the City's attempts to acquire the Shorecrest throVgh eminent domain proceedings, a settlement of such eminent domain proceedings or a purchase and sale contract. 6. CONDITION OF ESCROW, The parties agree that the acquisition (the "Acquisition") by the Agency of fee simple title to the Shorecrest, free and clear of all encumbrances (except those matters described in the Ground Lease between the Agency and RDP relating to the Hotel) is one of the Conditions. If the Termination Date occurs as a result of the failure to satisfy the Condition described in this Section 6, the Agency shall pay to RDP one-half (1/2) of the Total Design Costs (but in no event more than Seven Hundred Fifty Thousand Dollars ($750,000)) no later than fifteen (15) days after the later of (i) the Termination Date and (ii) submission by RDP to the Agency of written documentation verifying that such Total Design Costs have been incurred. 7. ACQUISITION. (i) In the event that the price to acquire the Shorecrest exceeds the amount of Four Million Six Hundred Ninety Thousand Dollars ($4,690,000), RDP will pay to the Agency, upon seven (7) days written notice from the Agency to RDP, the amount of the excess up to One Million Dollars ($1,000,000). IfRDP fails to pay such moneys to the Agency within that time, the Agency will send Notice of that fact to the Escrow Agent, RDP and the City and, upon the Escrow Agent's receipt of such Notice, the Escrow Agent is instructed to destroy the Escrowed Documents, the Escrow Agreement will terminate and RDP will not be entitled to any reimbursement of Total Design Costs from the Agency. (ii) In the event that the purchase price of the Shorecrest exceeds the amount of Five Million Six Hundred Ninety Thousand Dollars ($5,690,000), then such excess amount shall (a) be paid by RDP to the Agency within ten (10) calendar days of demand therefor by the Agency or (b) if such payment is not made within that time, the Shorecrest Portion of the Purchase Price (as such term is defined in that certain Agreement of Lease (the "Ground Lease") between the Agency and RDP relating to the Hotel) shall be deemed to have been increased by the amount of such excess, and the Ground Lease shall be deemed to have been amended accordingly. In the event of such amendment to the Ground Lease, within fifteen (15) days after the ten (10) day period referenced above, the parties to the Ground Lease shall execute a mutually acceptable amendment to the Ground Lease memorializing such modification and RDP shall record such amendment in the Public Records of Dade County, Florida and pay all recording charges and taxes in connection therewith. If that amendment is not so recorded within that ten (10) day period for any reason, RDP and the Agency are each authorized to record the Escrow Agreement and this Addendum in the Public Records of Dade County, Florida, (iii) In calculating the amount to be paid by RDP to the Agency as discussed in this Section 7, any deposits given by RDP or the Affiliates which are being held by the sellers of the Shorecrest and which the sellers voluntarily credit to the acquisition price will be deemed credited to RDP. 8. HEADINGS. The headings in this Addendum are inserted only for convenience and shall not affect the meaning or interpretation of any term of this Addendum or of the Escrow Agreement. IN WITNESS WHEREOF, the parties have executed this Addendum as of the date first set forth above. 015 ~ MIAMI BEACH- REDEVll,I, L,OPMENT AG~kY:i ,/1 .. v1 /~, 11" lj,t,______- 'f,/, \ I II L l, By: 1, k"'""-- j t' ~Ym9}~!lb~ AS TO ( / FORM & LANGUAGE "- & FOR ECunON cr By: AlTEST: CITY OF MIAMI BEACH \ " _) ;/1 / //(.L[~ By: vi APPROVED AS TO FORM & lANGUAGE & FOR EXeCUTION By: WITNESSES: ~ ~~-'9) RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, By: PADC HOSPITALITY CORPORATION I, its artner By: WITNESSES: cae~o' C~ (~J7 _- Ac c A 6\i)(Jv2 J.-,'Tv~ {"t'H.,<.;'t:, S The undersigned is executing this Addendum solely in its capacity as Escrow Agent. BLOOM & MINSKER., as Escrow Agent By: Joel N. Minsker, P.A. By: 016 WITNESSES: " ~ L~2(ti<!Y/c~/i2L:Zi~o~ kf II-- I t'),<..1 1t,1t? K -II , U' 'L ~ /\ ; " .", , 7 , , (;L~.Jd_,( f~)L--- ~l.- ~'ktt^,j)€12T. -n:\(PHvv1~;.S ~ STATE OF FLORIDA ) )ss: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this .:2 J 5Tday of ()~ti:t.Lv 1997, by Seymour Gelber, as Chairman, and Robert Parcher, as Secretary, of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, on behalf of such public body. They are personally known to me or produced valid Florida driver's licenses as identification, My commission expires: E OFFICIAL NOTARY SEAL ULLlAN BEAUCHAMP NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC347882 MY CO'vl1v!l5SION EXP. FEB. 13,1998 STATE OF FLORIDA ) )ss: COUNTY OF DADE ) The foregoing instrument was acknowledged before me on this ~ day of D~d4 _ , 1997, by Seymour Gelber, as Mayor, and Robert Parcher, as City Clerk, of the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, on behalf of such municipal corporation, They are personally known to me or produced valid Florida driver's licenses as identification. My commission expires: OFFICIAL NOTARY SEAL LILLIAN BEAUCHAMP NOTARY PUBLIC STATE OF FLORIDA COMMI5..SI0N NO. CC347882 MY COMME;SION EXP. FER. 13,1998 ST ATE OF FLORIDA ) )ss: COUNTY OF DADE ) The foregoing instrument was acknowledged before me on this e;)/_II day of Dc~{r..e~ 1997, by R. Donahue Peebles, as President ofPADC Hospitality Corporation I, a Florida corporation, on behalf of such corporation, and as General Partner of RDP ROY AL PALM HOTEL LIMITED PARTNERSHIP, a Florida limited partnership, on behalf of such limited partnership. He is personally known to me or produced a valid Florida driver's license as identification. OFFICIAL NOTARY SEAL LILLIAN BEAUCHAMP NCYrARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC347882 MY COMMISSION EXP. FEB. 131998 0.17 .rf1 My commission expires: STATE OF FLORIDA ) )ss: COUNTY OF DADE ) The foregoing instrument was acknowledged before me this c:2ft-+-day of DO.izJ/;;u/7 , 1997, by Joel N. Minsker, as President of Joel N. Minsker, P.A, a Florida corporation, on behalf of such corporation, and as partner of BLOOM & MINSKER, a Florida general partnership, on behalf of such general partnership. He is personally known to me or produced a valid Florida driver's license as identification. ~'t-~y Pl/9 MIRIAM MARTINEZ ~ A 'f, COMMISSION # CC 494853 ~ ~ EXPIRES OCT 7,1999 ~ ~ BONDED THRU OF ~ ATLANTIC BONDING CO.,INC. '-- My commission expires: This instrument prepared by and record and return to: Alexander I. Tachmes, Esq. Alexander I. Tachmes, P.A 777 Arthur Godfrey Road (41 st Street) 2nd Floor Miami Beach, FL 33140 n"i8 ---' if1