94-21365 Reso RESOLUTION NO. 94-21365
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, RATIFYING
THE APPROVAL BY THE REDEVELOPMENT AGENCY OF
THE CITY OF MIAMI BEACH (THE "RDA") OF AN
AGREEMENT BETWEEN THE RDA AND TISHMAN HOTEL
CORPORATION FOR CONSULTING SERVICES WITH
REGARD TO THE PROPOSED CONVENTION CENTER
HOTEL PROJECTS.
WHEREAS, the proposed Loews Hotels, Inc./Forest City Ratner Companies Hotel
project and the proposed HCF Group, Inc./ITT Sheraton Corporation Hotel project
(collectively, the "Projects") contain numerous complex financial and hospitality issues;
and
WHEREAS, on September 22, 1994, the City Commission voted to hire Tishman
Hotel Corporation ('Tishman") to act as consultant to and negotiator on behalf of the City
with regard to the Projects; and
WHEREAS, on October 5, 1994, the City Commission approved a letter of
understanding with Tishman, outlining certain basic terms of the Agreement to hire
Tishman, subject to a formal contract being executed; and
WHEREAS, the City Commission, during the October 5, 1994 Commission meeting,
stated that certain conflict of interest issues should be addressed in the contract with
Tishman; and
WHEREAS, the City Attorney and City Administration have negotiated a contract
with Tishman addressing compensation, conflict of interest and other issues, a copy of
which is attached hereto as Exhibit "A".
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City
Commission hereby ratify the approval by the RDA of the attached Agreement between
the RDA and Tishman Hotel Corporation for consulting services in connection with the
Convention Center Hotel Projects.
PASSED and ADOPTED THIS 19th d.•y of _ October 1994.
I MAYOR
ATTEST:
(c/La,Ja-
CITY CLERK
FORM APPROVED
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OFFICE OF THE CITY ATTORNEY
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F L O R 1 Co A
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LAURENCE FEINGOLD •:,,;• �.,= P.O.BOX 0
CITY ATTORNEY �!l26 ��'' MIAMI BEACH,FLORIDA 33119-2032
-7S1�]_ I I TELEPHONE(305)673-7470
COMMISSION MEMORANDUM NO. ! TELECOPY (305)673-7002
DATE: OCTOBER 19, 1994
TO: MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY COM ION
FROM: LAURENCE FEINGOLD �
CITY ATTORNEY 40 /
ROGER M. CARLTO
CITY MANAGER
SUBJECT: AGREEMENT BETWEEN THE CITY AND TISHMAN HOTEL
CORPORATION FOR CONSULTING SERVICES REGARDING
CONVENTION CENTER HOTEL PROJECTS
As the Commission is aware, the development of the Loews Hotels, Inc./Forest City
Ratner Companies Hotel project and the HCF Group, Inc./ITT Sheraton Corporation Hotel
project (collectively, the "Projects") contain numerous complex financial and hospitality
issues. In order to attempt to ensure that the City is well represented and informed with
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regard to its negotiations and decisions on the Projects, the City Commission, during its
meeting of September 22, 1994, voted to hire Tishman Hotel Corporation ('Tishman") to
provide consulting services to and negotiate on behalf of the City. On October 5, 1994,
the City Commission approved a letter of understanding with Tishman, subject to a formal
contract being brought back to the Commission for their consideration. That contract was
to include various financial and conflict of interest issues.
The City Attorney and City Administration have negotiated a formal contract with
Tishman, a copy of which is attached to the resolution as Exhibit "A." The contract
encompasses the terms of the engagement, including various conflict of interest
provisions.
RECOMMENDATION: The City Attorney and City Administration recommend that the 365
Mayor and City Commission approve the resolution providing for the execution of the
contract between the City and Tishman.
AGENDA
LF:mr - ITEM R—�-
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DATE ®— 9—9 y
1700 CONVENTION CENTER DRIVE- FOURTH FLOOR-MIAMI BEACH, FLORIDA 33139
AGREEMENT BY AND BETWEEN
THE REDEVELOPMENT AGENCY
OF THE CITY OF MIAMI BEACH, FLORIDA
AND
TISHMAN HOTEL CORPORATION
THIS AGREEMENT(the "Agreement") is dated as of October 20 , 1994 and is
by and between the REDEVELOPMENT AGENCY OF THE CITY OF MIAMI BEACH,
FLORIDA ("RDA") and TISHMAN HOTEL CORPORATION, a Florida corporation
("Tishman").
IN EXCHANGE for the mutual promises set forth herein, and other good and
valuable consideration,the receipt and adequacy of which is hereby conclusively acknowledged, the
parties agree as follows:
1. SCOPE OF SERVICES.
Tishman shall negotiate all agreements on behalf, at the direction and to the
satisfaction of the RDA, and act as development consultant to the RDA, with regard to the Loews
Hotels, Inc. /Forest City Ratner Companies Hotel project and the HCF Group, Inc./ITT Sheraton
Corporation Hotel project(collectively, the "Projects"), both Projects to be located in Miami Beach,
Florida. The services mentioned in the preceding sentence to be performed by Tishman include, but
are not limited to, negotiating with the hotel developers, advising the RDA on all financial and
development aspects of the Projects, performing due diligence to verify projections and estimates
by the hotel developers, and attending RDA Board and RDA staff meetings.
It is the intent of this Agreement that negotiations shall culminate in
agreements satisfactory to the RDA as to both of the Projects. Time is of the essence as it is the
intent herein to conclude the agreements within the time frames reflected in this Agreement.
2. COMMUNICATIONS.
The Chairman,Executive Director and General Counsel of the RDA each will
appoint a single point person to whom Tishman will report. The RDA will appoint a citizen to whom
Tishman will report. From time to time, Tishman will report to and/or meet with the full RDA Board.
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3. TERM.
The term of this Agreement is six(6)months from the date of this Agreement.
If more than six (6) months are necessary to complete negotiations with regard to either or both of
the Projects, the RDA Board, upon the recommendation of the Executive Director and General
Counsel, will decide whether or not to extend the term of this Agreement.
4. COMPENSATION.
Tishman's fee for the initial six (6) months of this Agreement shall be a lump
sum of$322,000.00, payable by the RDA in equal monthly installments of$53,666.67, except for the
payment for the sixth month which shall be in the amount of$53,666.65. The first of these monthly
installments will be due seven (7) days after the date this Agreement is signed by the RDA or
Tishman,whichever signs later, and subsequent monthly payments will be due thirty (30) days after
the date of the prior month's payment. The RDA shall also reimburse Tishman for its out-of-pocket
costs, in accordance with the RDA's travel procedures, upon presentation of bills by Tishman.
Tishman shall review the RDA's travel procedures prior to incurring any such costs.
If the RDA Board decides to extend the term of this Agreement beyond the
initial six(6)months, the monthly fee for each of the following months, up to six (6) months, will be
the fee paid the prior month minus 15% of that fee.
5. TERMINATION.
The RDA can, in its sole discretion,terminate this Agreement at any time, with
four(4)weeks written notice. In the event of such termination, Tishman's fee will be prorated as of
the date of the RDA's termination letter, plus four(4) weeks. This Section 5 (Termination) shall not
apply in the case in which the RDA terminates this Agreement because Tishman has defaulted under
the terms of this Agreement.
6. DEFAULTS.
Tishman shall be in default of this Agreement if Tishman fails to fulfill in a
timely manner or otherwise violates any of the provisions of this Agreement or if Tishman is placed
either in voluntary or involuntary bankruptcy, becomes insolvent, changes its majority ownership, or
makes an assignment for the benefit of creditors.
7. CONFLICTS OF INTEREST.
Tishman agrees that neither it nor any entity which has "Common
Ownership" (as defined below)with Tishman will engage in any business relationship, enter into any
contract, or take or fail to take any action that would, in the sole discretion of the General Counsel,
create a conflict of interest on the part of Tishman with regard to its obligations under this
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Agreement. As used in this Agreement, an entity has "Common Ownership" with Tishman if at least
10%of that entity is owned by an individual or entity which also owns at least 10% of Tishman. If
Tishman is uncertain as to whether its actions or inaction would cause a conflict of interest, Tishman
agrees to consult in advance with the General Counsel who shall render an opinion subject to
acceptance by the RDA Board.
8. OWNERSHIP INTEREST.
Tishman agrees that neither it nor any entity which has Common Ownership
with Tishman will, for a period of ten (10) years from the date of this Agreement, obtain any
ownership interest in or enter into any contractual or other business relationship with respect to either
of the Projects except on behalf of or as a consultant to the RDA.
9. CONTRACTUAL AND/OR BUSINESS RELATIONSHIPS.
(a) Except for any contractual and/or business relationships that Tishman currently
maintains, which contracts and/or relationships Tishman has already disclosed to the City of Miami
Beach(the"City") in its response to the City's disclosure questionnaire (the "Questionnaire") dated
September 26, 1994, Tishman agrees that neither it nor any entity which has Common Ownership
with Tishman will enter into any contractual and/or business relationships with Loews Hotels, Inc.,
Forest City Ratner Companies and/or HCF Group, Inc. for a period of eighteen (18) months from the
date of this Agreement without the prior written consent of the RDA. A copy of the completed
Questionnaire is attached hereto as Exhibit "A."
(b) In response to the Questionnaire, Tishman has disclosed, among other things,
all contractual and/or business relationships it currently maintains with ITT Sheraton Corporation.
If Tishman or any entity which has Common Ownership with Tishman enters into any other
contractual and/or business relationships with ITT Sheraton Corporation, Tishman will disclose to
the General Counsel such contract and/or relationship and the RDA, in its sole discretion, will decide
whether to terminate this Agreement pursuant to Section 5 (Termination) and/or take any other
action.
10. LEAD NEGOTIATOR
Michael B. Meyer will be the lead negotiator for Tishman with regard to the
Projects. Tishman will not substitute any other person in place of Meyer as lead negotiator without
the RDA's prior written consent.
11. ATTORNEYS' FEES AND COSTS.
In the event of any arbitration and/or litigation arising out of this Agreement,
the losing party shall pay the prevailing party's reasonable attorneys'fees and costs, at the trial and
all appellate levels.
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12. NO ASSIGNMENT.
Tishman shall not assign,transfer or sub-contract this Agreement, any portion
of this Agreement or any work under this Agreement without the prior written consent of the RDA.
13. EXCLUSIVE ARBITRATION AND/OR LITIGATION VENUE.
The exclusive venue for any arbitration and/or litigation between the parties,
arising out of or in connection with this Agreement, shall be Dade County, Florida.
14. ENTIRE AGREEMENT.
This document, including the completed Questionnaire, embodies the entire
Agreement and understanding between the parties hereto, and there are no other agreements or
understandings, oral or written with reference to the subject matter hereof that are not merged herein
and superseded hereby. The completed Questionnaire is hereby incorporated into this Agreement.
15. NO MODIFICATION.
No change in the terms of this Agreement shall be valid unless made in writing,
signed by both parties hereto, and approved by the RDA Board.
16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida.
17. LIMITATION OF LIABILITY.
The RDA desires to enter into this Agreement only Win so doing the RDA can
place a limit on the RDA's and the City's liability for any cause of action for money damages due to
an alleged breach by the RDA of this Agreement, so that its liability for any such breach never
exceeds the sum of Three Hundred and Twenty-Two Thousand and no/100 Dollars ($322,000.00).
Accordingly, and notwithstanding any other term or condition of this Agreement, except as set forth
in Section 18 (Exception to Limitation of Liability), Tishman and the RDA hereby agree that the RDA
and the City shall not be liable to Tishman for damages in an amount in excess of$322,000.00, which
amount shall be reduced by the amount actually paid by the RDA to Tishman pursuant to this
Agreement, for any action or claim for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the RDA and/or the City by this Agreement.
18. EXCEPTION TO LIMITATION OF LIABILITY.
Section 17 (Limitation of Liability) and Section 19 (Statutory Limitation of
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Liability)shall not apply where Tishman seeks indemnification from the RDA and all of the following
criteria are present: (a)Tishman seeks indemnification from the RDA for losses suffered by Tishman
as a result of a lawsuit filed by a third party against Tishman relating to the Projects, (b) Tishman
acted at the direction of the RDA, (c) Tishman was not negligent or grossly negligent, and (d)
Tishman did not perform with willful misconduct.
19. STATUTORY LIMITATION OF LIABILITY.
Nothing contained in this Agreement is in any way intended to be a waiver of
the limitation placed upon the RDA's and the City's liability as set forth in Florida Statutes, Section
768.28.
20. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement, or the
breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association (the "Rules"), and the arbitration award shall be final and
binding upon the parties hereto and subject to no appeal, except as provided in the Rules, and shall
deal with the question of the costs of arbitration and all matters related thereto. In that regard, the
parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the
arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award
rendered may be entered into any court having jurisdiction, or application may be made to such court
for an order of enforcement.
21. HEADINGS.
The headings in this Agreement are only for convenience, are not a substantive
part of this Agreement and shall not affect the meaning of any provision of this Agreement.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials, as of the date first entered above.
FOR REDEVELOPMENT AGENCY: REDEVELOPMENT AGENCY
ATTEST:
//
By: - vo� By: dAlliiiii
Secretary hairman
tic. RQ b E. BR.o1..j N Seymour Gelber
Print Name TPrint Name
Date: kO(zl f 9�-( Date: t°/2-l-1
FOR TISHMAN: TISHMAN HOTEL CORPORATION
ATTEST:
By: 1:010-aa, By: *maizz/i4a(.
Secretary
Executive Vice President
Title
Kathleen E. Kotoun Thomas Arasi
Print Name Print Name
Date: D I 1?F6( Date: Od 941 M y
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FORM APP'OVED
REDEVELO AGENCY -,
GEN UNSEL
By
Date 10—I9—Q.1
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