287-98 RDA
RESOLUTION NO. 287-98
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE BOARD
OF THE MIAMI BEACH REDEVELOPMENT AGENCY EXTENDING THE
TERMINATION DATE OF THE ESCROW AGREEMENT DATED AS OF
OCTOBER 21, 1997, BETWEEN THE MIAMI BEACH REDEVELOPMENT
AGENCY, THE CITY, RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP, AND BLOOM &MINSKER, FOR A PERIOD OF SIXTY
DAYS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Miami Beach Redevelopment Agency (the "RDA"), the City of Miami
Beach, Florida (the "City"), RDP Royal Palm Hotel Limited Partnership ("RDP"), and Bloom &
Minsker, as escrow agent (the "Escrow Agent"), entered into an escrow agreement and an addendum
to escrow agreement, together with certain exhibits thereto (collectively, the "Escrow Agreement"),
dated as of October 21, 1997; and
WHEREAS, said Escrow Agreement provided, in part, that unless certain Conditions (as
such term is defined in the Escrow Agreement), where met on or prior to a date seventy-five (75)
days from October 21, 1997 (that is, January 4, 1998), the Escrow Agent was instructed to destroy
all signatures on the Escrowed Documents (as such term is defined in the Escrow Agreement); and
WHEREAS, Condition No.4 on Exhibit B to the Escrow Agreement, which Condition
required RDP to present to the RDA and the RDA to approve a guaranteed maximum price
construction contract, which contract was to be in full force and effect for the construction of the
Hotel contemplated in the Ground Lease and the Hotel Development Agreement (as such terms are
defined in the Escrow Agreement); and
WHEREAS, such condition was not met by January 4, 1998; and
WHEREAS, the City and the RDA recently received a proposed amendment to the RDP
limited partnership agreement which the staff of the City and RDA have not yet had an opportunity
to review and analyze; and
WHEREAS, it is necessary and desirable and in the best interest of the City and its citizens
to extend the Termination Date (as such term is defined in the Escrow Agreement), for a period of
sixty (60) days.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND
MEMBERS OF THE BOARD OF THE MIAMI BEACH REDEVELOPMENT AGENCY,
as follows:
I. The Chairman and Secretary are hereby authorized and directed to execute and deliver
such documents and instruments as may be necessary to extend the Termination Date (as defined
in the Escrow Agreement), for a period of sixty (60) days from January 4, 1998.
2. All action heretofore taken by the Executive Director and staff of the ROA in order
to extend the Termination Date under the Escrow Agreement is hereby ratified, confirmed and
approved.
3. The Executive Director, Secretary, and General Counsel and their respective
designees and outside counsel are hereby authorized to take such actions as may be necessary to
effectuate the purposes of this Resolution
4. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED this 7th day of January, 1998.
fA
CHAIRMAN
ATTEST:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Jt~~ ~CIA~
SECRETARY
(.1{31/1 :l
Dote
Miami Beach
Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Telephone: (305) 673- 7295
Fax: (305) 673- 7772
REDEVELOPMENT AGENCY MEMORANDUM NO. 98-1
January 7, 1998
TO: Chairman and Members of the Board
of the Miami Beach Redev lopment Agency
FROM: Sergio Rodriguez
Executive Director.
SUBJECT: A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE BOARD OF
THE MIAMI BEACH REDEVELOPMENT AGENCY EXTENDING THE
TERMINATION DATE OF THE ESCROW AGREEMENT DATED AS OF
OCTOBER 21, 1997, BETWEEN THE MIAMI BEACH REDEVELOPMENT
AGENCY, THE CITY OF MIAMI BEACH, FLORIDA, RDP ROYAL PALM
HOTEL LIMITED PARTNERSHIP, AND BLOOM & MINSKER, FOR A
PERIOD OF SIXTY DAYS; AND PROVIDING AN EFFECTIVE DATE.
RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
On October 21, 1997, an Escrow Agreement was entered into by the
City; the Miami Beach Redevelopment Agency (RDA); the developer of
the African American Hotel, Royal Palm Hotel Limited Partnership
(RDP); and Bloom & Minsker, as escrow agents. The Escrow Agreement
provided that, unless certain conditions were met on or prisr to
January 4, 1998, the Escrow Agent was instructed to destroy all
signatures on the escrowed documents.
Condition NO.4 on Exhibit B to the Escrow Agreement required the
developer to present to the RDA, and subsequently the RDA to
approve, a guaranteed maximum price (GMP) construction contract.
That contract was to be in full force and effect for the
construction of the hotel. This condition was not met by January
4, 1998.
S()VTIl V()I~Tr=
Vedevel()pment [)Istlic::t
Clff Cr=~Tr=V
l!edevel()pment Uistrict
AGENDA ITEM 2-A
January 7, 1998
1
ANALYSIS:
The provision for the GMP was inserted out of concern that the
development budget was extremely aggressive and that until a GMP
was presented, the RDA could not have sufficient comfort that the
Developer had adequate resources to complete the hotel project.
This requirement became an escrow item because the Developer did
not submit plans on time to allow Tishman Hotel Corp., consultant
on behalf of the City/RDA, to conduct a full review and to prepare
a new budget estimate prior to the escrow closing in October.
Under the Partnership Agreement entered into by RDP and Crowne
Plaza, Crowne Plaza had until November 14th to agree to the
Development Budget of $59 million, and until December 3rd to
resolve a dispute over the budget if there were a disapproval.
Crowne Plaza initially did not approve the budget, but RDP and
Crowne Plaza ultimately resolved their dispute and entered into an
amendment to the Partnership Agreement. The amendment increases
the development budget by $5 million which will be provided by a
subordinated loan from Crowne Plaza, if the developer does not
secure other financing. This amendment was transmitted to the RDA
on December 23rd and must be approved by the RDA after more careful
review.
With the approval of the partnership amendment, the RDA's concern
of the adequacy of the source of funds has been addressed, and has
reduced the urgency of the GMP requirement. Since a GMP is used to
cover the construction risk of a proj ect, an increase to the
overall development budget, (which includes costs over and above
the hard construction costs), represents a greater security to the
City. At this juncture, it is in the interest of the project to
have the architect finalize the drawings to the fullest extent
before the contractor goes out for pricing to set the bid. The
more complete the architectural plans upon which the GMP is based,
the lower the risk to the project. Therefore, a 60-day extension
to the escrow agreement is in the best interest of all parties.--
CONCLUSION:
The City Commission and the RDA should approve the extension for 60
days.
SR~,jPh
2
RESOLUTION NO. 98-22634
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, EXTENDING THE TERMINATION
DATE OF THE ESCROW AGREEMENT DATED AS OF OCTOBER 21,
1997, BETWEEN THE MIAMI BEACH REDEVELOPMENT AGENCY, THE
CITY, RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, AND
BLOOM &MINSKER, FOR A PERIOD OF SIXTY DAYS; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the Miami Beach Redevelopment Agency (the "RDA"), the City of Miami
Beach, Florida (the "City"), RDP Royal Palm Hotel Limited Partnership ("RDP"), and Bloom &
Minsker, as escrow agent (the "Escrow Agent"), entered into an escrow agreement and an addendum
to escrow agreement, together with certain exhibits thereto (collectively, the "Escrow Agreement"),
dated as of October 21, 1997; and
WHEREAS, said Escrow Agreement provided, in part, that unless certain Conditions (as
such term is defined in the Escrow Agreement), where met on or prior to a date seventy-five (75)
days from October 21, 1997 (that is, January 4, 1998), the Escrow Agent was instructed to destroy
all signatures on the Escrowed Documents (as such term is defined in the Escrow Agreement); and
WHEREAS, Condition No.4 on Exhibit B to the Escrow Agreement, which Condition
required RDP to present to the RDA and the RDA to approve a guaranteed maximum price
construction contract, which contract was to be in full force and effect for the construction of the
Hotel contemplated in the Ground Lease and the Hotel Development Agreement (as such terms are
defined in the Escrow Agreement); and
WHEREAS, such condition was not met by January 4, 1998; and
WHEREAS, the City and the RDA recently received a proposed amendment to the RDP
limited partnership agreement which the staff of the City and RDA have not yet had an opportunity
to review and analyze; and
WHEREAS, it is necessary and desirable and in the best interest of the City and its citizens
to extend the Termination Date (as such term is defined in the Escrow Agreement), for a period of
sixty (60) days.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, as follows:
I. The Mayor and City Clerk are hereby authorized and directed to execute and deliver
such documents and instruments as may be necessary to extend the Termination Date (as defined
in the Escrow Agreement), for a period of sixty (60) days from January 4, 1998.
2. All action heretofore taken by the Manager and staff of the City in order to extend
the Termination Date under the Escrow Agreement is hereby ratified, confirmed and approved.
3. The Mayor, City Clerk, City Attorney, and their respective designees and outside
counsel are hereby authorized to take such actions as may be necessary to effectuate the purposes
of this Resolution
4. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED this 7th day of January, 1998.
(~YOR
ATTEST:
Rolu.tYP~
CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
/tA1Jt{&~ lz(6!i.9?
TY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
tp:\ \ci, m iam i-beach. fl. us
~ITY OF MIAMI BEACH
COMMISSION MEMORANDUM NO.
1,-Cf<6
TO:
Mayor Neisen O. Kasdin and
Members of the City Commission
Dr\. TE: January 7, 1998
FROM:
Sergio Rodriguez
City Manager
SUBJECT:
A RESOLU IOl OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, EXTENDING THE TERMINATION
DATE OF THE ESCROW AGREEMENT DATED AS OF OCTOBER 21,
1997, BET\VEENTHE MIAMI BEACH REDEVELOPMENT AGENCY, THE
CITY, RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, AND
BLOOM & MINSKER, FOR A PERIOD OF SIXTY DAYS; AND
PROVIDING AN EFFECTIVE DATE
RECOMMENDA TION:
Approve the Resolution.
BACKGROUND:
On October 21, 1997, an Escrow Agreement was entered into by the City; the Miami Beach
Redevelopment Agency (RDA); the developer of the African American Hotel, Royal Palm Hotel
Limited Partnership (RDP); and Bloom & Minsker, as escrow agents. The Escrow Agreement
provided that, unless certain conditions were met on or prior to January 4, 1998, the Escrow Agent
was instructed to destroy all signatures on the escrowed documents.
Condition No.4 on Exhibit B to the Escrow Agreement required the developer to present to the
RDA, and subsequently the RDA to approve, a guaranteed maximum price (GMP) construction
contract. That contract was to be in full force and effect for the construction of the hotel. This
condition was not met by January 4, 1998.
ANAL YSIS:
The provision for the GMP was inserted out of concern that the development budget was extremely
aggressive and that until a GMP was presented, the RDA could not have sufficient comfort that the
Developer had adequate resources to complete the hotel project. This requirement became an escrow
item because the Developer did not submit plans on time to allow Tishman Hotel Corp., consultant
on behalf of the City/RDA, to conduct a full review and to prepare a ne\v budget estimate prior to
the escrow closing in October.
AGENDA ITEM
~IH
1-1-9g
DATE
Under the Partnership Agreement entered into by RDP and Crowne Plaza. Cro\vne Plaza had until
November 14th to agree to the Development Budget of $59 million, and until December 3rd to
resolve a dispute over the budget if there were a disapproval. Crowne Plaza initially did not approve
the budget, but RDP and Crowne Plaza ultimately resolved their dispute and entered into an
amendment to the Partnership Agreement. The amendment increases the development budget by
$5 million which will be provided by a subordinated loan from Crowne Plaza, if the developer does
not secure other financing. This amendment was transmitted to the RDA on December 23rd and
must be approved by the RDA after more careful review.
With the approval of the partnership amendment, the RDA's concern of the adequacy of the source
of funds has been addressed. and has reduced the urgency of the GMP requirement. Since a GMP
is used to cover the construction risk of a project, an increase to the overall development budget,
(which includes costs over and above the hard construction costs), represents a greater security to
the City. At this juncture, it is in the interest of the project to have the architect finalize the drawings
to the fullest extent before the contractor goes out for pricing to set the bid. The more complete the
architectural plans upon which the GMP is based, the lower the risk to the project. Therefore, a 60-
day extension to the escrow agreement is in the best interest of all parties.
CONCLUSION:
The City Commission and the RDA should approve the extension for 60 days.
Jk
SR:HSM:jph
Attachment
ESCROW AGREEMENT
TInS.ESCROW AGREEMENT (the" Agreement"), dated as of the _ day of
, 1997, between MIAMI BEACH REDEVELOPMENT AGEN'CY, 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 l..Il\.fITED
PARTNERSHIP, a Florida limited parmership ("RDP"); and BLOOM & MINSKER (the
"Escrow Agent It).
REClT ALS:
A. In February 1993, the City CenterlHistoric Convention Village Redevelopment
and Revitalization Area was officially established by the adoption of the Redevelopment Plan,
resulting from the combined effons 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 A venue, 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 Janu.aIY 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 J~ 5, 1996, after a public review process,
the Agency selected RDP's predecessors in interest, RDP Royal Palm Hotel Limited Company
and RDP Shorecrest 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 defmitive documents listed on Exhibit A, attached
433
hereto and made a part hereof, numbered 1 through 8, necessary to implement the transactions
contemplated by the Letter of Intent.
t...-
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o "
<..::; 'ti
<:l
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 , 1997, RDP has approved the
transactions contemplated by the Escrowed Documents, and has authorized and directed the
appropriate officers of the general parmer of RDP to date, execute and deliver the Escrowed
Documents and cause them to become effective, subject to the provisions of this Agreement.
NOW, TIiEREFORE, 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
defmed in Exhibit A, is one of the Escrowed Documents, all defmed terms, denoted by
capitalization, herein used shall have the same meanings as ascn"bed 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 11 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. A~ent of Escrow A~ent. 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 Parries, 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
2
434
~
fourteen (14) days after the date hereof; (ii) Condition No.4 on Exhibit "B" 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 "B" 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 (the
"Termination Date"). If by the Termination Date, 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 the T erminarion Date has been
extended or in the event RDP has terminated this Agreement in accordance with the immediately
preceding sentence, then Escrow Agent is instructed to destroy all signatures on the Escrowed
Documents. Provided the Termination Date has not passed, 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 Si21larores. 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 as 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 ~-rowed DocJID.ents 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).
7. Disoutes.
(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
3
435
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 Panies or (ii) fInally been
determined by a coun of competent jurisdiction.
j
~<'t
o
(b) If any of the Panies 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
Panies 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 requir-..d 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.
9. Liabilitv. Duties and Resoonsibilitv of Escrow A2'ent.
(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
4
436
~
of any statement or assertion contai.ned 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 bas 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 traIlSaCtions
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, remrn 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 Avenue
Suite 2040
Miami. FL 33131
Attention: R. Donahue Peebles
with a copy to:
RDP Royal Palm Hotel Limited Partnership
2600 Virginia Avenue. N.W.
Suite 606
Wa"hingron, 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.
5
437
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 ~rb, 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:
Bloom'" Minsker
800 Brickell Avenue, Suite 1100
Miami, Florida 33131
Ann: 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.
6
438
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 insmunent 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 adminim-ators; 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 Agre-..ment 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 insttument. If any provision of this
Agreement or the 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. Desil!Il Develooment 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
7
439
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 (112) of the Total Design Costs and the Agency shall pay to
RDP one-half (1/2) 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 documemation 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 Shorccrest Hotel.
. 17. Entire A!!reeII1ent. This Agreement and the Addendum to Escrow Agreement of
even date between the parties hereto contains all of the promises, agreements, conditions,
inducemenrs and understandings between the Parties and there are no other promises,
agreements. conditions. understandings. inducements. warranties or represemations, oral or
written., express or implied, between them- relating to the escrow of the Escrowed Documents.
EXECUTION
IN WITNESS WHEREOF, the Parties, intending to be legally bound. have executed this
Agreement as of the day and year first above written.
WITNESSES:
MIAMI BEACH REDEVELOPMEl'IT
AGENCY
By:
Seymour Gelber
Chairman
Date:
APPROVED AS TO
FORM & LANGUAGe
& fOR EXfCUTJON
(SEAL)
440
8
Jf. ttf!)/(~ /p //~&?
Gpment ~ ' 0.-
Genen,I Co.-..#
WITNESSES:
APPROVED AS TO
FORM & LANGUAGe
& fOR EXECUTION
/~~ /~~1tJ
WITNESSES:
A ITEST:
By:
Roben Parcher
Secretary
Date:
CITY OF MIAMI BEACH, FLORIDA
By:
Seymour Gelber
Mayor
Date:
(SEAL)
ATTEST:
By:
Robert Parcher
City Oerk
Date:
RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP, a Florida limited
partnership
-'''--'.-~- ~
By.: P ADC Hospitality COIpOraOon I. a
Florida cOIpOration, General Partner
By:
Name: R. Donahue Peebles
Title: President
Date:
9
441
The undersigned agrees to act as Escrow Agent under the terms and COnditiODS of this '.
Agreement and is executing this Agreement solely for such purpose.
BLOOM &: MINSKER
By: Joel N. Minsker, P.A.
By:
Name: Joel N. Minsker
Title: President
Date:
10
442
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. Convention Center Agreement between the City. as Owner, and RDP, as Hotel
Owner.
5. Completion Guarantee from R. Donahue Peebles, as Guarantor, to the Agency
and the City.
6. Special Warranty Deed for existing improvements, between the Agency, as
Grantor, and RDP, as Grantee.
7.
Declaration of Covenants and Restrictions by the Agency, as Owner.
8.
UCC-l FiDancing Statement between RDP and the Agency.
9.
Agency .
Consttucta Agreement between RDP, Jefferson PJ3za, Ltd., the City and the
10. Management Agreement between RDP, as Hotel Owner, and Holiday Hospitality
CorpOration, as Hotel Manager.
11. Attornment A~~ between the Agency, as Owner, and Holiday Hospitality
Coxporation. as Hotel Manager.
1
443
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 commianent for a fIrst mortgage constrUction loan
from Capital Bank and a commianent 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 from 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 and the Limited Partnership Agreement for RDP Royal
Palm Hotel Limited Partnership dated October _, 1997 shall not have been revised without the
prior written agreement of all the Parties, each in its sole and absolute discretion.
4. RDP shall present to and the Agency shall have approved a guaranteed maximum
price contained in a construction comract 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. If the price exceeds the amount in the Development Budget and RDP
does not provide additional equity to make up the excess, the Agency's approval shall be at
Agency's sole and absolute discretion.
5. RDP shall deliver upon breaking of this Escrow the Certificate contemplated by
Section 27. 1 (b) of the Ground Lease.
MIA3-513491.9
2
444
ADDENDUM TO ESCROW AGREEMEl'll
This Addendum to Escrow Agreement (the "Addendum") is dated as of ,
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: penaining 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.<\LS. 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. DEEINED TERMS. Any defined terms, denoted by capitalization, used in this Addendum and not
defined her~ have the definitions given in the Escrow Agreement.
4. INCORPORA nON: 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,
445
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 through eminent domain proceedings,
a settlement of such eminent domain proceedings or a purchase and sale contract.
6. CONDmON OF ESCROW. The parties agree that the acquisition (the "Acquisition") by the
Agency of fee simple tide to the Shorecrest., free and clear of all encumbrances (except those
matters described in the Ground Lease ben~leen the Agency and RDP relating to the Hotel) is one of
the Conditions. In the event that the Acquisition has not occurred within seventy-five (75) days of
the date of the Escrow Agreement, RDP may, upon written notice (the "Termination Notice") to the
Agency, City and Escrow Agent as provided in the Escrow Agreement within seven (7) days of the
Termination Dare, tenninate the Escrow Agreement. Upon the giving of the T erminarion Notice,
the Termination Date sball be deemed to have occurred. Upon receipt of such Termination Notice,
Escrow Agent is instructed to destroy all signatures on the Escrowed Documents. The Agency
shall, within fifteen (15) days of the later of receipt by the Agency of the Termination Notice and
the receipt by the Agency from RDP of written documentation verifying that such Total Design
Costs have been incurred. pay to RDP one-half of the Total Design Costs in an amount not to
exceed Seven Hundred Fifty Thousand Dollars ($750,000). If RDP tails to give the Termination
Notice as provided above and the Termination Date subsequently occurs as a result of the failure to
satisfy the Condition described in this Section 6, the Agency shall pay to RDP one-half (112) of the
Total Design Costs (but in no event more than Seven Hundred Fifty Thousand DoUars ($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. ACOli1SmON. 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 tails 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 reimbursemem of Total
Design Costs from the Agency. In the event that the excess is more than One Million Dollars, the
parties, each in their sole and absolute discretion, will attempt to negotiate a mutually acceptable
solution for the funding shortfall. If no such solution is reached within twenty (20) days after the
price is determined by a court of competent jurisdiction in connection with litigation or a settlement
of the pending eminent domain litigation, 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 wiIl terminate and the
T ennination Dare shall be deemed to have occurred. The Agency shall then pay to RDP one-half
(112) 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) thar Termination Date and (ii)
submission by RDP to the Agency of written documentation verifying that such Total Design COSts
have been incurred. 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.
446
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
fonh above.
MIAMI BEACH
REDEVELOPMENT AGENCY:
WITNESSES:
By: .
Seymour Gelber, Chairman
ATTEST:
By:
Robert Parcher, Secretary
CITY OF MIAMI BEACH
WITNESSES:
By:
Seym9ur Gelber, Mayor
ATTEST:
By:
Robert Parcher, City Clerk
-:;."..".,...-",,--,-- -
APPROVED AS TO
FORM & LANGUAGE
& FOR EXfCU110N
APPROVED AS 10
FORM & LANGUAGE
& FOR EXECUTION
:!f~ 1~2
C~IC~~~
111,~4JP
447
RDP ROYAL PALM HOTEL L1MITED
P ARTNERSHlP.
By: PADC HOSPITALITY CORPORATION 1,
its General Partner
WITNESSES:
By:
R. Donahue Peebles, President
The undersigned is executing this Addendum solely in its capacity as Escrow Agent.
BLOOM & MINSKER, as Escrow Agent
By: Joel N. MiDSker. P.A
By:
Joel N. Minsker. President
448
,...,...
FIR~T AMENDMENT TO ESCROW AGREEMENT
This FIRST AMENDMENT TO ESCROW AGREEMENT dated as of the 4th day of
January, 1998, 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 PARTN ERSHIP, a
Florida limited partnership ("RDP"); and BLOOM & MINSKER (the "Escrow Agent").
RECITALS:
A. The parties to this First Amendment to Escrow Agreement executed that certain
Escrow Agreement (the "Escrow Agreement") dated as of October 21, 1997, pursuant to
which certain documents relating to which the leasing, development and operation of a
convention center hotel to be constructed on the property commonly known as 1535 and
1545 Collins Avenue, Miami Beach, Florida were escrowed. The Escrow Agreement
contains an Addendum to Escrow Agreement dated as of October 21, 1997. The Escrow
Agreement, together with the Addendum, are herein referred to as the "Agreement".
B. The parties wish to amend certain of the provisions of the Agreement.
C. By Resolution adopted January 7, 1998, the Agency and the City have
authorized and directed the appropriate officers of the Agency and the City to amend the
Agreement as hereinafter set forth.
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 of this Agreement agree as follows:
herein.
1. Recitals. The foregoing Recitals are true and correct and are incorporated
2. Amendment to Section 5 of the Escrow Agreement. Section 5 of the Escrow
Agreement is amended to change the seventy five (75) day period contained in the second
line on Page 3 of the Escrow Agreement to one hundred thirty five (135) days.
3. No further modifications. Except as set forth in this Amendment to Escrow
Agreement, the Agreement remains unmodified and in full force and effect.
~
IN WITN ESS WHEREOF, the parties have executed this Addendum as of the date first
set forth above.
WITN ESSES:
~ llUh
ct,~{ CJ' C -;!'() "jL-
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
&{~
l/1 /91?
Date
WITNESSES:
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c
WI TN ESSES:
DEVELOPMENT AGENCY
By:
Neisen a d in, Chairman
ATTEST:
By: ~~ P tU~
Robert Parcher, Secretary
Date: <: ~ t'1AAi'1.~1~5J / '11c}
,'j "
ATTEST: Pc
By: l2tku 6-' (1A ~
Robert Parcher, City Clerk
-J /; /-: c/' /
Date;, i.~-1(A..M{/. \::J) 1,1~
,'/' /
RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP
By: PAD C H 0 S P. I TAL I T Y
CORPORATION its general
Date: OI-IS;-98
~
The .undersign€d, as Escrow Agent under the Agreement, hereby acknowledges
receipt of the foregoing First Amendment to Escrow Agreement.
WITN ESSES:
BLOOM & MINSKER, as Escrow Agent
By: Joel N. Minsker, P.A.
Date:
MIA4-576630