HomeMy WebLinkAbout2003-25195 Reso "City of Miami Beach - City Clerk's Office"
R90 Status Report On The Letter Of Intent (LOI) Negotiated Between The City Of Miami
Beach, The Miami Beach Redevelopment Agency And RDP Royal Palm Hotel Limited
Partnership ("RDP').
(City Manager's Office)
ACTION: Discussion held. Mayor Dermer to meet with Mr. Peebles to give a good faith effort
to see if an agreement can be reached and to report back at the next Commission meeting.
Jorge Gonzalez, City Manager, stated that this is a report on the status of the LOI and
referenced several letters Mr. Peebles has transmitted to the City. One of the letters was
distributed at today's Commission Meeting. He stated that the way he reads the letter, Mr.
Peebles is asserting that his claim exceeds the amount of rent owed to the City, therefore, he
should not have to pay the City rent until such time as the claims balance out. He is proposing
to begin current rent payment as of July 1, 2003. This clearly deviates from the LOI. The
Administration is here to receive any guidance the Commission would like to give.
Discussion held.
Mayor Dermer asked if the original LOI was presented to Mr. Peebles again would he accept it.
Discussion continued.
Commissioner Cruz stated that in a recent conversation with Mr. Peebles, he asked him if he
would be willing to accept the LOI as presented at the last Commission Meeting. He stated that
Mr. Peebles stated, no.
Main motion made by Commissioner Bower to approve the original Letter of Intent (LOI)
presented at the 4130/03 Commission Meeting without any of the changes and transmit it
to Mr. Peebles; seconded by Commissioner Gross. Discussion continued.
Commissioner Cruz stated that the Mayor should meet with Mr. Peebles Commissioner Gross
agreed that the Mayor should take the original LOI to Mr. Peebles to see if he is willing to sign
it.
Commissioner Steinberg stated that he will vote against this because of the tolling agreement.
He explained the potential problems with the tolling agreement. Discussion was held.
Joel Minsker, Esq., and the City's outside counsel, stated that the tolling agreement was to toll
the statute of limitation during negotiations. If negotiations are started and the LOI is signed,
and then negotiations breakdown, that means the tolling agreement gets terminated and if you
look at the tolling period, May 8, 2002 to the day the final negotiations are stopped, the City has
stayed the statute of limitations. On that day Mr. Peebles is back to May 8, 2002.
Murray Dubbin, City Attorney, stated that the statute of limitations is in effect right now. There
are two (2) claims he is aware of that he would want to assert: 1) The environmental claims,
and 2) His claim that he was kept from examining the building before he bought it. These
Printed by the City Clerk's Office
Date Printed: 6/6/2003 Time Printed: 3:25:07 PM
Source Database: M:~$CMB\CITYCLER\folio4.2\Clerkfolio.nfo
"City of Miami Beach - City Clerk's Office"
would be four year statutes from the date of discovery and he stated that he thinks the statute
has run. Discussion continued.
Commissioner Steinberg offered the amendment to change the effective date of the tolling
agreement to be the date of the signing of the LOI [as opposed to the May 8, 2002].
Commissioner Bower did not accept the amendment; amendment seconded by
Commissioner Gross. Discussion continued.
Vote on the amendment: Ballot: 2-5; Opposed: Mayor Dermer, Vice-Mayor Garcia and
Commissioners Bower, Cruz and Smith. Amendment motion failed.
Jorge Gonzalez, City Manager, advised that a time frame be added to the motion such as the
next Commission Meeting. Commissioner Bower agreed.
Murray Dubbin, City Attorney, stated that because of the length of time to the next Commission
meeting, the Mayor should transmit the results of his meeting with Mr. Peebles if any actions
need to be taken.
Vote on the main motion: Ballot Voice vote: 3-4; Opposed: Mayor Definer and Commissioners
Cruz, Smith and Steinberg. Motion failed.
Discussion continued.
Motion made by Commissioner Gross to instruct the Legal Department to collect the rent
on the lease; seconded by Commissioner Steinberg. Discussion continued.
Commissioner Cruz stated that Mayor Dermer, along with the City Manager, should.meet with
Mr. Peebles to establish a dialogue and see if an agreement can be reached.
Mayor Dermer stated that he would meet with Mr. Peebles and give it a good faith effort to see
if an agreement can be reached and to report back at the next Commission meeting.
Commissioner Steinberg withdrew his second.
Handout or Reference Materials
1. Letter from R. Donahue Peebles to Mr. Jorge M. Gonzalez, dated May 21, 2003, RE: Royal
Palm Crewne Plaza Resort - Rent Payments
2. Roll call Ballots
City Clerk's Note: 6/6/03: Cross-reference: 4/30/03 - R7B/RDA 3B and 5/21/2003 - R9Q.
For the record it is noted that althought the City Commission approved the Letter of Intent (LOI),
Mr. Peebles informed the City that he would not sign the LOI.
Printed by the City Clerk's Office
Date Printed: 6/6/2003 Time Printed: 3:25:07 PM
Source Database: M:~$CMB\ClTYCLER~folio4.2\Clerkfolio.nfo
RESOLUTION NO. 2003-25195
A RESOLUTION OF THE MAYOR AND MEMBERS OF MIAMI
BEACH CITY COMMISSION AUTHORIZING THE MAYOR AND
CITY CLERK TO AUTHORIZE EXECUTION OF THE LETTER OF
INTENT NEGOTIATED BETWEEN THE CITY OF MIAMI BEACH,
THE MIAMI BEACH REDEVELOPMENT AGENCY AND RDP
ROYAL PALM HOTEL LIMITED PARTNERSHIP ("RDP") AND
FURTHER AUTHORIZING THE CITY ATTORNEY TO PROCEED IN
PREPARATION OF THE CLOSING DOCUMENTS TO REFLECT
THE TERMS OUTLINED IN THE LETTER OF INTENT.
WHEREAS, over the past year, the Administration, Vice-Mayor Simon Cruz, as
appointed liaison by the City Commission, the City Attorney and outside counsel, Joel
Minsker, have met with Don Peebles and his representatives to address the outstanding
issues in connection with the Royal Palm Crowne Plaza Hotel (RDP); and
WHEREAS, on November 13, 2002, the City Commission discussed the progress of
the negotiations and was provided a summary of the outstanding issues at that time and
since that date, the parties have continued to address the salient issues and the proposed
negotiated terms are summarized and reflected in the Letter of Intent (LOI); and
WHEREAS, the LOI addresses: 1) Back Rent/Environmental Delay Claim/Sales
Taxes; 2) Conversion of the Shorecrest Hotel to condominium/hotel/timeshare upon
payment of the Purchase Price in full, i.e. $10,000,000 plus the annual return; 3) amending
the Convention Center Agreement to reduce the Room Block requirement, as defined, from
350 rooms to 257 rooms per day, as the Royal Palm contains 257 rooms; 4) Refinancing;
5) FFE Reserve; 6) Outstanding Disputes; 7) Restaurant Agreement; 8) Release of all
Claims by RDP, RDA and City of Miami Beach; 9) Amendments to the Garage Easement
Agreement to eliminate the payment of a Use Fee from RDP to Agency and a Facility
Usage Payment from Agency to RDP annually, deleting the provision that requires RDP's
approval of the garage operator, and defining the Self Park Rate; 10) Beach Concession
Agreement; 11)Attorneys Fees; 12) Special Indemnification; 13)Termination; and
providing for 14) Tolling Agreement amongst the parties; and
WHEREAS, based upon the resolution of all outstanding claims and issues, pending
the settlement with Clark Construction, and the agreement to allow the conversion of the
Shorecrest Hotel to a condominium/hotel/timeshare, only upon payment in full of the
Purchase Price, it is recommended the Chairman and Members of the Board adopt the
attached resolution.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND MEMBERS
OF THE MIAMI BEACH CITY COMMISSION, that the Mayor and City Clerk hereby
authorize the execution of the Letter of Intent negotiated between the City of Miami Beach,
the Miami Beach Redevelopment Agency and RDP Royal Palm Hotel Limited Partnership
and further authorizing the City Attorney to proceed in preparation of the closing
documents to reflect the terms outlined in the letter of intent.
PASSED and ADOPTED this 30th day ol
/
ATTEST:
~[TY CLERK
03.
JMG/CMC/rar
T:~AG EN DA~.003~apr3003Veg ular\RoyalPal m LOI CITY.RES.doc
APPROVED A~ TO
FORM & LANGUAGE
& FOR EXECUTION
ALL SUPPORTING DOCUMENTS ARE INCLUDED WITH THE
REDEVELOPMENT AGENCY (RDA) ITEM
CI'IY COMMISSION
.aGENDA ITEM SUMMARY
Condensed Title:
A Resolution authorizing the Mayor and City Clerk to authorize execution of the Letter of Intent negotiated
Ibetween the City of Miami Beach, the Miami Beach Redevelopment Agency and RDP Royal Palm Hotel
Limited Partnership ("RDP") and further authorizing the City Attorney to proceed in preparation of the
closing documents to reflect the terms outlined in the Letter of Intent.
Issue-'
Shall the Mayor and Members of the Miami Beach City Commission authorize the execution of the Letter of
Intent?
Item Summary/Recommendation:
Based upon the resolution of all outstanding claims and issues, pending the settlement with Clark, and the
agreement to allow the conversion of the Shorecrest Hotel to a condominium/hotel/timeshare, only upon
payment in full of the Purchase Price, it is recommended the Chairman and Members of the Board adopt the
attached resolution.
Advisory Board Recommendation:
IN/A
Financial Information:
Source of Amount Account Approved
Funds: 1
2
3
4
Finance Dept. Total
City Clerk's Office Legislative Tracking:
I Christina m. Cuervo
Sign-Offs:
Department Director Assistant City Manager
T:~AGENOA~O03~apr3003~*egular~RoyaIPalrn LO] CITY.SUM.doc
City Manager
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 ·
www.miamibeachfl.gov
COMMISSION MEMORANDUM
To:
From:
Subject:
Date: April 30, 2003
Mayor David Dermer and
Members of the City Commission
Jorge M. Gonzalez ~ ~
City Manager
A RESOLUTION OF THE MAYOR AND MEMBERS OF THE MIAMI BEACH
CITY COMMISSION AUTHORIZING THE MAYOR AND CITY CLERK TO
AUTHORIZE EXECUTION OF THE LETTER OF INTENT NEGOTIATED
BETWEEN THE CITY OF MIAMI BEACH, THE MIAMI BEACH
REDEVELOPMENT AGENCY AND RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP ("RDP") AND FURTHER AUTHORIZING THE crrY
ATTORNEY TO PROCEED IN PREPARATION OF THE CLOSING
DOCUMENTS TO REFLECT THE TERMS OUTLINED IN THE LE'rTER OF
INTENT.
Administration Recommendation:
Adopt the Resolution.
Analysis:
As you are well aware, over the past year, the Administration, Vice-Mayor Simon Cruz, as
appointed liaison by the City Commission, the City Attorney and outside counsel, Joel
Minsker, have met with Don Peebles and his representatives to address the outstanding
issues in connection with the Royal Palm Crowne Plaza Hotel (RDP).
On November 13, 2002, the City Commission discussed the progress of the negotiations
and was provided a summary of the outstanding issues at that time. Since that date, the
parties have continued to address the salient issues and the proposed negotiated terms
are summarized below and reflected in the attached Letter of Intent (LOI).
1)
Back Rent/Environmental Delay Claim:
Although not specifically referenced in the attached LOI, norwill it be reflected in
the final closing documents, as reported on November 13, 2002, the parties
agree to unavoidable delays attributed to reconstruction and environmental
damages during 488 days that will be applied to back rent prior to Hotel Opening
Date, thereby reducing the rent due by 50% for a total reduction of $326,664
during such time period, as permitted in the Lease Agreement. (Refer to
Attached Worksheet) The remaining "Unpaid Back Rent", totaling $279,996.62
will be applied as a credit to the outstanding environmental claims. Said rent
credit will not apply to the 8% return on the Purchase Price of the land.
April 30, 2003
City Commission Memorandum
Royal Palm - Letter of Intent
Page 2 of 5
RDP agrees to reimburse the City/RDA for 50% of the "Unpaid Back Rent",
approximately $140,000, from net receipt of funds upon settlement with Clark
(the "Clark Credit").
· Rent from the Hotel Opening Date (May 2002-April 30, 2003) totaling
$469,583.41 will be paid within five (5) days from the last execution of the LOI.
RDP's Counsel has submitted a Request for Technical Assistance Advisement
(TAA) regarding the payment of sales tax on the ground lease rental payments,
for which a response is still pending from the Office of the General Counsel of
the State of Florida. RDP will pay a portion of the sales taxes pursuant to the
pending TAA request on the full amount of Rent within five (5) days of the last
execution of the LOI. If the final TAA has not been received prior to the City's
June 20, 2003, submission of sales tax to the State, RDP will provide any unpaid
amount to equal a full 7% on the total Rent by June 15, 2003. Upon receipt and
pursuant to the TAA, the City will refund a portion of the sales tax, if applicable.
2) Shorecrest Hotel:
Upon Payment of the Purchase Price in full, i.e. $10,000,000 plus the annual return,
the City/RDA will agree to amend:
· The Declaration of Covenants and Restrictions to allow for the Shorecrest
property to be sold as a condominium/hotel/timeshare.
The Declaration of Covenants and Restrictions to allow for the property to be
released from a unity of title and RDP will provide a Covenant in lieu of Unity of
Title as described in Section 118-5 of the Miami Beach City Code.
The Convention Center Agreement will be amended to reduce the Room Block
requirement, as defined, from 350 rooms to 257 rooms per day, as the Royal
Palm Hotel contains 257 rooms.
· RDP is responsible to comply with all applicable zoning requirements in
connection with the sale of the Shorecrest Hotel Condominium units.
3) Refinancinq:
· Within 5 years, RDP will refinance the Recognized Mortgage with subsequent
refinancing occurring every 10th Lease year thereafter.
Apd130, 2OO3
City Commission Memorandum
Royal Palm - Letter of Intent
Page 3 of 5
4)
FFE Reserve:
· The FFE Reserve requirements for the Royal Palm and the Shorecrest Hotels
will be amended to mirror the Loews Hotel Agreement commencing in the
second Lease Year that sets forth:
5)
Lease
Outstanding Disputes:
Year Percentage of Hotel Revenues
1 0%
2 1%
3 2%
4 3%
5 4%
RDP agrees to cure all outstanding disputes (list attached as Exhibit "B") within
30 days of the execution of the LOI. The outstanding liens/claims or other
obligations with Clark Construction (listed separately as the "Clark Disputes") will
be satisfied upon settlement of litigation with Clark, at which time the Completion
Guarantee can also be satisfied. Any future defaults will immediately terminate
the LOI.
6)
Restaurant Agreement:
The City/RDA agree to eliminate the Restaurant Agreement Requirement and
will allow RDP to construct a Spa, additional meeting space or other ancillary
Hotel uses, subject to all applicable zoning requirements. The corresponding
$300,000 Letter of Credit requirement has been eliminated.
7)
Release of all Claims by RDP, RDA and City of Miami Beach
· In consideration of the terms negotiated herein, the parties agree to release all
claims against each other upon execution of the Closing Documents.
8)
Garage Easement Agreement:
The City/RDA has agreed to delete Section 4 of the Garage Easement
Agreement that provides for the payment of a Use Fee from RDP to Agency and
a Facility Usage Payment from Agency to RDP annually. For clarification
purposes, the Use Fee and Facility Usage Payment represent an equivalent
amount (i.e. a wash) up until the gross parking revenues exceed $1.2 million; at
which time, the Agency was obligated to pay RDP 6.46% of the gross revenues
that exceed $1.2 million in the form of an additional Facility Usage Payment. For
the last fiscal year 2002, the Garage reflected gross parking revenues of
$1,785,052 and had the Hotel been opened during the same time period, RDP
would have been entitled to receive approximately $37,795. This will represent
Apd130, 2OO3
City Commission Memorandum
Royal Palm - Letter of Intent
Page 4 of 5
an annual recurring savings to the City/RDA as long as the Garage Revenues
exceed $1.2 million, which is the breakeven point.
· The provision that requires RDP's approval of the garage operator has been
deleted.
The parties have agreed to define the Self Park Rate, as set forth in the Garage
Easement Agreement, as the rate charged to the general public at the Garage
Facility and identified as the Maximum Daily Rate.
9) Beach Concession Agreement:
· Concurrent with the sale of the Shorecrest Hotel Property, applicable beach
concession fees will apply.
10) Attorneys Fees:
· RDP has agreed to reimburse the City/RDA's legal fees up to the first $60,000
charged by the City's outside counsel in connection with this Settlement.
11 ) Special Indemnification:
RDP shall indemnify the City/RDA from any third party challenges in connection
with the amendment proposed herein, except for challenges arising out of the
settlement of back rent, environmental claims, delay damages and the Clark
Credit.
12) Completion Guarantee:
The Completion Guarantee will be terminated upon delivery of the Certificate by
the Architect and the Final CO, which are pending to comply with the terms of
the agreement.
13) Termination:
· The LOI may be terminated by either party if the Closing Documents have not
been executed within six (6) months of execution of the LOI.
14) Standstill:
In connection with the execution of the LOI, a Tolling Agreement is attached as
Exhibit "D" that will establish a period, the "Tolling Period", during which the
parties can continue to negotiate and finalize Closing Documents to resolve the
Royal Palm's potential claims and the Agency/City claims without litigation.
During the Tolling Period, the parties agree that the allegations of laches and/or
April 3O, 2OO3
City Commission Memorandum
Royal Palm - Letter of Intent
Page 5 of 5
estoppel and the statute of limitations are tolled as to the outstanding issues
between the parties. The Tolling Period shall commence as of May 8, 2002, as
this was the date the City Commission first discussed and authorized
negotiations on the conceptual settlement terms, and shall terminate 31 days
after either party delivers advance written notice to the other party of its desire to
terminate same, or automatically upon execution of the Closing Documents.
The most substantive changes from the items presented to the City Commission in
November 13, 2002, relate to the City/RDA's agreement to release of the Shorecrest
Property for condominium/hotel/timeshare, upon full payment of the Purchase Price in full,
i.e. $10 million, instead of the previously negotiated position upon payment of the
Shorecrest portion of the Purchase Price, of $4.5 million within five years. Additionally, the
elimination of the excess Facility Usage Payment will represent an annual recurring
savings to the Anchor Shops Garage/RDA.
Based upon the resolution of all outstanding claims and issues, pending the settlement
with Clark, and the agreement to allow the conversion of the Shorecrest Hotel to a
condominium/hotel/timeshare, only upon payment in full of the Purchase Price, it is
recommended the Mayor and Members of the Miami Beach City Commission adopt the
attached resolution.
JMG/CMC/rar
T:~AGENDA~2003~apr3003\regular\RoyalPalrn LOI CITY.CM.doc
IThiscommumcatlon ~s a privileged settlement commumcatlon and strictly lnadnuss~ble o I
lany purpose Pursuant to ~ecti°n 90.408, Flu, stat, and Rule 408, Fed: R. Evidi I
LETTER OF INTENT
TO AMEND ROYAL PALM
CROWNE PLAZA RESORT AGREEMENTS
Subject:
Parties:
Royal Palm Crowne Plaza Hotel
RDP Royal Palm Hotel Limited Partnership ("RDP")
City of Miami Beach (the "City")
Miami Beach Redevelopment Agency (the "Agency")
Date: ,2003
RECITATIONS:
A. On May 28, 1998, the parties entered into an Agreement of Lease regarding the
land more fully described on Exhibit "A" ("Land") attached hereto and made a part hereof as if
fully set forth herein, as recorded on July 1, 1998 in Official Records Book 18170, at Page 0893,
in the Public Records of Miami-Dude County, Florida ("Lease").
B. Subsequent to the recording of the Lease, RDP began the construction of the
Royal Palm/Shorecrest Crowne Plaza Hotel ("Hotel").
C. During the construction of the Hotel, RDP encountered structural problems with
the original Royal Palm Hotel and soil contamination problems regarding the Land which alleg-
edly resulted in certain construction delays. A dispute arose amongst the parties regarding the
aforesaid problems and delays resulting in RDP's refusal to pay certain Rental due under the
Lease and the Agency's refusal to pay claims related to said contamination and alleged construc-
tion delays.
D. The parties respectively deny and dispute all such claims and allegations against
them, whether asserted or unasserted.
E. The parties, wishing to avoid litigation and amicably resolve all matters existing
between them, entered into negotiations regarding the aforesaid disputes. This letter sets forth
the understanding reached as a result of such negotiations. Capitalized terms which are not
defined in this Letter of Intent to Amend Royal Palm Crowne Plaza Resort Agreements ("LOI")
shall have the meanings ascribed to them in the existing, applicable documents. "Agency"
means, as appropriate, the Agency or the City or both, as the case may be.
F. Agency and Owner in their desire to maintain and fulfill their commitment to pm-
vide the African American community with opportunities in the hospitality industry, are willing
to amend the Royal Palm Crowne Plaza agreements subject to the Hotel's continuing compliance
with the Convention Center Agreement which provides, among other things, that the Hotel
owner and its successors and assigns make available Hotel facilities and services for support of
the Convention Center events and to undertake joint marketing efforts.
1. BACK RENT AND REAL ESTATE TAXES:
1.1 Back Rent Prior To The Hotel Opening Date. RDP and the Agency
agree that unavoidable delays attributed to the environmental and reconstruction
delays occurred prior to the Hotel Opening Date. RDP has previously paid
$128,373.38 in Back Rent prior to the Hotel Opening Date; i.e., from October 31,
2000 to May 14, 2002, and the Agency shall retain said amount in full settlement
of all amounts due for Back Rent for the period prior to May 15, 2002.
Additionally, RDP shall pay within five (5) days from the last execution of this
LOI any and all applicable sales tax due and owing on said amount plus any
interest and penalty assessed by the State of Florida against the City and/or the
Agency for failure to pay applicable sales tax on said amount prior to the Hotel
Opening Date.
1.2 Clark Credit. Subject to the conditions set forth in this Section 1.2,
RDP shall pay to the Agency an amount up to $140,000.00 ( the "Clark Credit")
plus applicable sales tax when, and if, it settles its present litigation with The
Clark Construction Group styled RDP Royal Palm Hotel, LP, Et Al. vs. The Clark
Construction Group, Inc. vs. Arquitectonica International Corp., Et Al., U.S.
District Court, Southern District of Florida, Case No. 01-3130-CIV-Middlebrooks
("Clark Litigation") or if it obtains a final non-appealable judgment in the Clark
Litigation. RDP shall pay this amount to the Agency within ten (10) days of its
receipt of funds from, and to the extent, either the settlement or the judgment
provides excess funds after RDP pays its attorneys' fees and costs for the Clark
Litigation. Article 4 of the Lease entitled "Late Charges" shall not apply to the
payment of the Clark Credit. The application of the Clark Credit shall be treated
as additional Bank Rent which shall be due only if the conditions set forth in this
Section are met and then only to that extent. Any amounts paid to the Agency
under this Section 1.2 shall not apply to the eight percent (8%) return calculation
as a component of the Purchase Price as defined in Section 36.1(d)(iii) of the
Lease (the "Return"). This provision shall survive the payment of the Purchase
Price.
1.3 Back Rent After The Hotel Opening Date. RDP shall pay the
Agency within five (5) days from the last execution of this LOI the sum of
$469,583.41, plus applicable sales tax, representing the Back Rent ("Post Opening
Back Rent") from the period of May 15, 2002 to April 1, 2003.
1.4 Real Estate Taxes. The parties acknowledge that the 2002 real
estate taxes on the Improvements are unpaid and that said taxes are being
appealed. On or before the date the Closing Documents are executed, RDP shall
provide to the Agency proof that it has complied with the requirements of Section
32.2(b) of the Lease as to said taxes. Further, to the extent that sales taxes are due
on real estate taxes which were the responsibility of RDP prior to the date of the
-2-
execution of this LOI, RDP shall pay such taxes, penalties and penalty interest
prior to the execution of the Closing Documents.
2. FUTURE RENTAL:
RDP shall continue to pay Base Rent, Additional Rent, and Incentive Rent
(plus all applicable sales taxes on same) as well as all other Rental from the date
of execution of this LOI pursuant to the terms and conditions of thc Lease.
3. EFFECT OF PAYMENT OF THE PURCHASE PRICE IN FULL.
3.1 Declaration of Covenants and Restrictions. The Declaration of
Covenants and Restrictions shall be amended to provide that upon payment of the
Purchase Price in full, the following changes shall be effective, but that said
Declaration shall not otherwise be amended, modified or changed:
(1) with respect to the Shorecrest Land only, Section 2.2 shall
no longer apply.
(2) with respect to both the RP Land and the Shorecrest Land,
Section 2.3 shall no longer apply and if, as a result thereof, then applicable
zoning ordinances, such as the current section 118-5 of the Miami Beach
Code, require a covenant in lieu of unity of title, RDP shall cause such a
covenant to be recorded as to said parcels.
3.2 Convention Center Agreement. The Convention Center Agree-
ment shall be amended to provide that, upon payment of the Purchase Price in
full, the "350 rooms per day" requirement stated in the Room Block definition
shall be reduced to two hundred fifty seven (257) rooms per day. In all other
respects, the definition of Room Block and the remainder of the Convention
Center Agreement shall remain unchanged except as provided in paragraph 18.17
of this LOI.
4. REFINANCING:
The Refinancing Time stated in Section l l.13(a) of the Lease shall be
changed to on or prior to the beginning of the fifth (5th) year after the Hotel
Opening Date ("First Refinancing"); on or prior to ten (10) years after the closing
of the First Refinancing and then every tenth (10th) anniversary of the First Reft-
nancing thereafter; provided however, that the mandatory purchase by Tenant as
provided in Section 36.1 (c) of the Lease remains unchanged.
5. FF&E RESERVE:
5.1 Hotel FF&E Reserve. The percentages stated in Section 16.5(a) of
the Lease with respect to the Hotel shall be changed as follows:
-3-
Lease Year Pementages of Hotel Revenues
1 0%
2 1%
3 2%
4
5 and thereafter 4%
6. SHORECREST RESTAURANT:
6.1 Changes to Article 33 of the Lease. Article 33 of the Lease shall
be amended to delete therefrom subsections (a) through (f) and to pemfit in the
area originally contemplated for the Restaurant (the "Space") the construction ora
spa, additional meeting space or other improvements for any reasonable hotel
purpose that will benefit the operation of the Hotel; provided, however, that such
uses are permissible under all applicable local laws and zoning ordinances. The
sizes and dimensions of all such facilities within the Space shall be as reasonably
determined by the RDP and the Operators (defined below) of the respective
facilities. Subsection (g) shall be amended to relate to any Operator. The
amended Lease shall provide that such facilities shall not be subject to any further
approval by the Agency except as provided in paragraphs 6.3 and 6.5, below, but
the use and operation of said facilities shall be consistent with that of a first class
hotel.
6.2 Fees and Costs. RDP shall be solely responsible for, and shall pay,
at its sole cost and expense, any parking impact fees and any other costs,
including but not limited to concurrency fees, permit fees and the like resulting
from the new facilities.
6.3 The Space as a Condominium Unit. If the Space is located on the
Shorecrest Land, and if RDP elects to create a condominium unit for the Space as
pemfitted under the terms of the Lease, RDP shall cause the Declaration of
Condominium to contain provisions that (i) the sale or lease of the Space unit
shall be subject to the Agency's approval and (ii) the Space unit shall be operated
in accordance with the quality standards referred to in paragraph 6 of this LOI.
6.4 Non-Disturbance Agreement. Upon request of RDP, the Agency
shall execute a non-disturbance agreement in favor of a third party Space operator
(an "Operator") containing terms generally found in such agreements in form and
content reasonably acceptable to the Operator and the Agency, but the term of
which shall be no longer than the earlier to occur of (i) the expiration of the third
party Space agreement or (ii) twenty (20) years.
6.5 Operator Agreement. In the event the Space is managed or
operated by an Operator pursuant to an agreement between RDP and Operator,
said agreement shall be deemed to be Sublease under the Lease requiring Agency
-4-
approval under Section 10.2(a)(v) of the Lease, the agreement shall contain
quality standards pertaining to the operation and physical condition of the Space
which shall be enforced by RDP, which standards and the selection of the
Operator shall be subject to approval by the Agency.
7. EXISTING DISPUTED ITEMS:
7.1 List Of Disputed Items. Exhibit "B" entitled "List of Disputed
Items" is attached hereto and incorporated by reference herein as a list of the cur-
rent disputed items under the Lease and other related documents as of the date of
last execution of this LOI ("RDP Items").
7.2 Curing of RDP Items. RDP shall cure all of the RDP Items on or
before thirty (30) days from the date of execution of this LOI except for those
items listed in Exhibit "C" attached hereto and specifically incorporated herein.
o
RELEASES OF ALL CLAIMS BY RDP~ THE AGENCY AND THE
CITY:
8.1 RDP Claims. RDP shall waive and release any and all alleged
delay claims, environmental damage claims and any other claims of any kind
whatsoever against the City and/or the Agency arising or accruing prior to the
date of execution of the Closing Documents upon the execution of the Closing
Documents.
8.2 Agency and City Claims. The Agency and the City shall waive
and release their Owner's excess contribution claim and any other claims of any
kind whatsoever against RDP upon the execution of the Closing Documents.
8.3 Acknowledgement. Provided that all of the temxs and conditions
of this LOI have been satisfied by all parties, the amendment to the Lease shall
contain a written acknowledgment that all alleged claims and other alleged
defaults have been cured, settled and or waived, that all controversies between the
parties have been settled and that the Lease is in good standing and in full fome
and effect.
9. GARAGE EASEMENT AGREEMENT:
9.1 The Garage Easement Agreement shall be amended as appropriate
to provide for and incorporate the following concepts:
A. The parties shall have no further obligation for the payment of Use
Fees and Facility Usage Payments and no such payments are due either
party as of the date of the execution of this LOI.
B. The words "and approved by Grantee" in Section 5(a) shall be
deleted.
-5-
C. RDP shall have no affirmative obligation to use the Garage for its
Hotel guests and employees.
D. Section 9(a) shall be deleted and the Garage Easement Agreement
shall be removed from any cross default provisions contained in any of the
Hotel related documents.
E. The term "self park rate" shall mean (i) the rates charged to the
general public at the Garage facility and identified as the maximum daily
rate or (ii) the valet rate charged by the Royal Palm Hotel at RDP's
election.
9.2 The remainder of the Garage Easement Agreement shall remain in
full force and effect.
9.3 In the event that RDP creates a hotel condominium on the
Shorecrest Land, then, in that event, the parties to this LOI agree that there are no
rights or agreements under the Garage Easement Agreement which will be
transferred to the Shorecrest Hotel Condominium unit owners.
10. CONCESSION AGREEMENT UNDER THE LEASE:
10.1 Fee Payment. RDP shall pay the Concession Fees due and owing,
if any, under the Concession Agreement described in Exhibit 14.5 of the Lease on
or before five (5) days after the last execution of this LOI. The parties are not
now aware of any such outstanding fees.
10.2 License Fees. RDP shall pay or cause to be paid the corresponding
occupational license fee in colmection with the beachfront concession operation
for the Hotel.
10.3 Shorecrest Condominium. In the event that RDP creates a hotel
condominium on the Shorecrest Land, then, in that event, RDP shall pay (or cause
the Shorecrest hotel condominium association to pay) the corresponding
applicable beach concession fees consistent with those fees charged other upland
private owners of hotel and condominium properties.
11. CLARK CONSTRUCTION LITIGATION LIENS:
The existing Clark Litigation liens and future liens, including liens filed or
which may be filed by subcontractors, relating solely to the Clark Litigation, if
any, against the leasehold interest of RDP in the Lease shall not be considered an
Event of Default under any of the Hotel Documents so long as RDP diligently and
in good faith continues to prosecute its claims to resolve all issues under the Clark
Litigation; provided however, that nothing contained herein shall relieve RDP of
its responsibility to remove these liens and to resolve those matters contained in
Exhibit "C", either by resolution of the Clark Litigation or otherwise.
-6-
12. ATTORNEYS FEES:
Each party shall bear its own legal fees relating to this LOI and the
Closing Documents except that RDP shall reimburse the Agency at the time of the
execution date of the Closing Documents its legal fees up to the first $60,000
charged by Bloom & Minsker, P.L., based upon an hourly rate of $250.00.
Agency shall provide to RDP detailed statements for professional services
showing time and activity on a daily basis supporting said reimbursement.
13. ADDITIONAL TERMS~ CONDITIONS AND ISSUES NOT COV-
ERED IN THIS LOI:
Because of the complex nature of the documents involved and the changes
being considered as a result of this LOI, RDP, the Agency and the City shall have
the right to raise additional terms and conditions and issues not covered in this
LOI and which are not inconsistent with the terms of this LOI as the actual draft-
ing of the documents occurs and continues.
14. SPECIAL INDEMNIFICATION BY RDP:
RDP shall indemnify and hold harmless and shall provide defense for the
Agency and the City by counsel reasonably acceptable to the Agency and the City
regarding any and all matters arising out of, or relating directly or indirectly to,
any challenges by any third parties to this LOI and the Closing Documents except
for those challenges arising out of the Clark Credit, the payment and partial
waiver of Back Rent and the settlement of alleged delay claims attributed to the
environmental damage and reconstruction delays referred to in paragraph 1.1 of
this LOI.
15. COMPLETION GUARANTEE:
15.1 The Agency and the City acknowledge that the Guarantor under
the Completion Guarantee given to the Agency and the City shall be terminated
upon delivery to the Agency and the City of the certificate by the Architect
described in Section 20) of said Guarantee and Final CO's are issued as
contemplated by Section 2(ii) of said Guarantee. In all other respects, Guarantor
has complied with its obligations under the Guarantee. The Completion Deadline
is tolled until said certificate is delivered and the Final CO's are issued.
16. DECLARATION OF COVENANTS AND RESTRICTIONS:
16.1 The parties acknowledge that the payment in full by RDP of the
Purchase Price to the Agency shall not temfinate the Declaration.
-7-
17. CLERICAL CHANGES TO THE LEASE AND RELATED EXIST-
ING DOCUMENTS:
Non-substantive clerical changes such as current mailing addresses in the
notice provisions and grammatical errors in the Hotel Documents shall be cor-
rected in the Closing Documents.
18. GENERAL:
18.1 Definitive Agreements. Upon execution of this LOI by RDP, the
approval of the terms hereof by the appropriate Agency and City governing
bodies and the execution of this LOI by the appropriate Agency and City officials,
the Closing Documents shall be drafted. The Closing Documents will contain,
among other things, representations, warranties, conditions, covenants and
indemnities and the like typical in similar transactions, subject to the teni~s hereof.
Furthermore, the parties to this LOI recognize that due to the complexity of the
structure of these transactions, not all of the major legal issues have been covered
by this LOI. The consummation of the transactions contemplated hereby is con-
ditioned upon the negotiation and execution of the Closing Documents with
temis, provisions and conditions mutually acceptable to RDP, the Agency and the
City as well as the obtaining of all necessary lender approvals and the satisfaction
of the parties with all other agreements and matters necessary or desirable with
respect to the transactions contemplated hereby. The parties shall comply with all
applicable laws, statutes, regulations and requirements and performance by the
Agency, the City and RDP under this LOI and the Closing Documents shall be
subject thereto. The following is a list of the documents which may need to be
amended or created (said list is not meant to be inclusive of all required agree-
ments and additional agreements shall be executed by the parties to this LOI as
required:
LIST OF AGREEMENTS
A. GROUND LEASE AMENDMENT
C. DECLARATION OF
AMENDMENT
D.
E.
F.
G.
H.
I.
COVENANTS AND
CONVENTION CENTER AGREEMENT AMENDMENT
RESTRICTIONS
GARAGE EASEMENT AMENDMENT
AGENCY'S RELEASE OF CLAIMS
CITY'S RELEASE OF CLAIMS
RDP'S RELEASE OF CLAIMS
SPECIAL INDEMNIFICATION BY RDP
TERMINATION OF COMPLETION GUARANTY
J. UCC FINANCING STATEMENTS - to renew lease UCC-I's as
amended by Ground Lease Amendment
K. ESCROW AGREEMENT.
-8-
18.2 Assignment by Agency. In the event the Agency ceases to exist,
the Closing Documents will provide that the rights granted to the Agency will
inure to the benefit of the City and the City will be bound to perform the obliga-
tions therein.
18.3 Termination. This LOI may be terminated by either party if the
Closing Documents have not been executed by six (6) months from the execution
date of this LOI.
18.4 Non-binding. Except for paragraph 1.3 hereinabove and para-
graphs 18.9 and 18.11 herein below which the parties to this LOI intend to be
binding, (i) no party shall have any legally binding obligation to any other party
under this LOI until such time as the Closing Documents are executed by all par-
ties thereto; and (ii) no party will have any liability whatsoever under this LOI to
any other party for failure to perform in accordance with this LOI, if any party
decides to terminate this LOI or for any other reason related to this LOI.
18.5 Amendments. This LOI may be amended only by a written agree-
ment executed by both of RDP and the Agency.
18.6 Goveming Law and Venue. This LOI, the Closing Documents and
their interpretation, validity and performance, shall be governed by the laws of the
State of Florida, both substantive and remedial, without regard to principles of
conflict of laws. The venue for any litigation arising out of this LOI or the Clos-
ing Documents shall be the Eleventh Judicial Cimuit, Miami-Dade County,
Florida, if in state court, and the U.S. District Court, Southern District of Florida,
if in federal court.
18.7 "Approval" or "Consent." The use of the terms "approval" or
"consent" in this LOI shall always be deemed to mean/kreasonable approval@ or
g_reasonable consent@ except where specifically provided otherwise.
18.8 Counterparts. This LOI may be executed in counterparts and all
such counterparts, when taken together, shall constitute this LOI.
18.9 Standstill. The Tolling Agreement attached hereto and incorpo-
rated by reference herein as Exhibit "D" shall be executed simultaneously with
the execution of this LOI and held by Bloom & Minsker, P.L. and shall be
delivered by said firm to RDP upon payment of the Post Opening Back Rent.
18.10 Successors and Assigns. All references to any of the parties to this
LOI shall include their permitted successors and pemfitted assigns.
18.11 Attorneys' Fees. In the event litigation arises solely under para-
graphs 1.3 and 18.9 hereinabove, then, in that event, the prevailing party shall be
entitled to recover its attorneys' fees and court costs, including those involving
appeals and/or post-judgment proceedings, if any.
-9-
18.12 LOI In Effect. This LOI shall remain in effect as provided herein-
above provided that RDP shall maintain the Lease and related existing documents
in good standing and free of any defaults (the parties agreeing that the issues cov-
ered elsewhere in this LOI shall not be deemed defaults for purposes of this para-
graph 18.12) during the pendency of this LOI; the failure of which shall automati-
cally result in this LOI being terminated and of no further force and effect other
than the specific binding paragraphs as provided in paragraph 18.4 of this LOI.
18.13 Privileged Settlement Communication. This LOI is a privileged
settlement communication except for the specific binding paragraphs as provided
in paragraph 18.4 of this LOI. The remainder of this LOI is strictly inadmissible
for any purpose pursuant to Section 90.408, Florida Statutes and Rule 408,
Federal Rules of Evidence.
18.14 Statements Against Interest. Any statements made by any party to
this LOI contained in this LOI have been made solely for the purpose of resolving
all matters existing between the parties to this LOI. All parties to this LOI recog-
nize and agree that any such statements may not be correct as applied to any other
person or entities not a party to this LOI and more specifically, all parties to this
LOI recognize and agree that any such statements may not be correct as applied to
the Clark Litigation.
18.15 Recording Fees and the Like. RDP shall pay all recording fees and
the like for all of the Closing Documents or any other documents contemplated by
this LOI.
18.16 Waiver of Jury Trial. All of the Closing Documents shall, where
applicable, contain a waiver of jury trial provision.
18.17 Cross Default. The Convention Center Agreement shall be
amended to provide that a default in the Declaration shall be a default in the
Convention Center Agreement.
[CONTINUED ON NEXT PAGE]
-10-
AGREED AND ACKNOWLEDGED:
RDP ROYAL PALM HOTEL LIMITED
PARTNERSHIP, a Florida limited partnership
By:
By:
PADC HOSPITALITY CORPORATION I,
a Florida corporation, as General Partner
Name: R. Donahue Peebles
Title: President
MIAMI BEACH REDEVELOPMENT
AGENCY
By:
Name: David Dermer
Title: Chaimtan
Attest:
Name: Robert Parcher
Title: Secretary
APPROVED:
CITY OF MIAMI BEACH
By:
Name: David Dermer
Title: Mayor
Attest:
Name: Robert Parcher
Title: City Clerk
Dated:
Dated:
Dated:
.,2003
., 2003
,2003
-I1-
EXHIBIT A
DESCRIPTION OF THE LAND
RP LAND
The South 12.65 feet (measured along the lot line) of Lots 7 and
14, all of Lots 6 and 15 and the North 10.0 feet (measured along
the lot line) of Lots 5 and 16, all in Block 56, of FISHER'S FIRST
SUBDIVISION OF ALTON BEACH, according to the plat
thereof, as recorded in Plat Book 2, at Page 77, of the Public
Records of Dade County, Florida, together with that certain parcel
of land lying East and adjacent to the above described parcel; said
parcel bounded on the South by the South line of the above
described parcel extended Easterly; bounded on the North by the
North line of the above described parcel extended Easterly;
bounded on the East by the Erosion Control Line of the Atlantic
Ocean and bounded on the West by the East line of the above
mentioned Block 56.
SHORECREST LAND
The South 40.00 feet (measured along the lot line) of Lots 5 and 16
and the North one-half of Lots 4 and 17, all in Block 56, of
FISHER'S FIRST SUBDIVISION OF ALTON BEACH, accord-
ing to the plat thereof, as recorded in Plat Book 2, at Page 77, of
the Public Records of Dade County, Florida, together with that
certain parcel of land lying East and adjacent to the above
described parcel; said parcel bounded on the South by the South
line of the above described parcel extended Easterly; bounded on
the North by the North line of the above described parcel extended
Easterly; bounded on the East by the Erosion Control Line of the
Atlantic Ocean and bounded on the West by the East line of the
above mentioned Block 56.
All lands described above located, lying and being in Section 34, Township 53 South, Range 42
East, in the City of Miami Beach, Dade County, Florida.
EXHIBIT "B"
DISPUTED ITEMS
EXHIBIT B"
The following is a list of outstanding disputes regarding the Hotel Development
Agreement:
ARTICLE 2. CONSTRUCTION
2.3. Completion of Construction of the Proiect
(b) Upon Substantial Completion of Construction of the Project Developer shall
furnish the Owner with the following:
(vi) evidence that all FF&E necessary to use and operate the Hotel in
accordance with Ground Lease, Management Agreement, Plans and
Specs, and the Development Budget has been installed in the Hotel
Developer will provide evidence to satisfy Owner.
ARTICLE 4 OWNER PARTICIPATION
4.2. Owner's Ri.qht to Notice, Access and Review
(a) (v) the delivery by Developer to the Owner of two (2) copies of:
(1) all agreements with contractors (that will be provided upon
settlement with Clark Construction), subcontractors, suppliers,
vendors and other Persons supplying materials or services in
connection with the Construction of the Project in excess of
Two Hundred Fifty Thousand Dollars ($250,000), which shall
be aggregated with respect to each Person supplying materials
or services;
(5) all drawdowns of equity and loan proceeds under the Loan
Docs.
(7) Updated Development Budget
(8) all interior design control books
ARTICLE 5. MISCELLANEOUS CONSTRUCTION PROVISIONS
5.2 Names of Contractors, Materialmen, etc. - Developer shall furnish to Owner, with a
list of each contractor, subcontractor, vendor and supplier who is performing any
labor or supplying material in excess of $500,000 (except for FF&E)...
The items listed in Article 4 and Article 5 above, will be satisfied by the Developer's
delivery of an itemized "Project Cost Summarization" and Debt/Equity Capital
Investment Summary ("Project Capitalization Recap") regarding the Project.
The following is a list of outstanding disputes regarding the Agreement of Lease:
ARTICLE 11 .MORTGAGES
11.13. Reflnancin.q of Debt
(b) Refinancin.q Not Related to a Default - If Tenant refinances its Debt in the
ordinary course of business, and not related to any Event of Default, the Net
Refinancing Proceeds shall be applied in the following order:
(i) to Owner to pay the Purchase Price for Owner's Interest in the
Premises;
(ii)
to Tenant if any funds remain after paying Owner the full Purchase
Price for Owner's Interest in the Premises
(1) Owner's subordination of its right to Rental shall be at the
Subordinated Amount as of the date of such refinancing by
Tenant.
(2) "Net Refinancing Proceeds" means the amount of the
refinancing of the Debt less (x) the Balance immediately before
such refinancing of the Debt, (y) the interest owing on such
Balance, and (z) reasonable refinancing transaction expenses,
brokerage commissions and prepayment fees and yield
maintenance charges relating to the Debt to be refinanced.
The Developer shall provide evidence of all reflnancings to date and evidence on
how funds were apportioned as described in Article 4 and Article 5 above in the
Debt/Equity Ca[ital Investment Summary ("Project Capitalization Recap").
13.3
One (1) Hotel Manaqer The Developer will affirm that at all times during the Term
and without interruption, both the Shorecrest Improvements and the RP
Improvements shall be operated and managed by one and the same Hotel
Manager.
Developer will re-send previous letter affirming this condition is being complied with
provision on the Lease Agreement.
ARTICLE 10. Notice to Owner 10.1.(k)
Tenant will provide notice to owner of any Capital Transaction not requiring Owner's
consent not later than two (2) business days after the occurrence of such Capital
Transaction...
Developer will provide said notice in connection with the transaction described in
the Certificate of Tenant.
F:~cmgr~M.L~CHRISTIN~RDA~r oyaipalm Exhibi[ B 4-22.03.doc
EXHIBIT "C"
LIST OF CLARK CONSTRUCTION ITEMS
"EXHIBIT C"
(CLARK EXHIBIT)
The following is a list of outstanding Clark issues disputes regarding the Hotel
Development Agreement:
ARTICLE 2. CONSTRUCTION
2.3. Completion of Construction of the Project
(b) Upon Substantial Completion of Construction of the Project Developer shall
furnish the Owner with the following:
(i) certificate of the Architect re: Substantial Completion
(iii) lien waivers in form and substance reasonably satisfactory to Owner,
other than Clark Construction lien waivers that will be provided upon
settlement with Clark Construction
(v) Contractor's Final Affidavit, to be provided upon settlement with Clark
Construction
ARTICLE 4 OWNER PARTICIPATION
4.2. Owner's Riqht to Notice, Access and Review
(b) The final critical path method ("CPM Schedule")
The Developer will provide the last CPM Schedule provided by Clark in the
Developer's possession. To the extent the Final CPM Schedule is provided as a
result of the settlement of litigation with Clark, the Developer will provide same.
ARTICLE 14. DISCHARGE OF LIENS
14.2 Discharqe of Liens
(a) If any mechanic's, laborer's, vendor's, materialman's, or similar statutory lien
(including tax liens) is filed against the Project Site...Developer shall cause it
to be discharged. However, Developer shall not be required to discharge
any such lien if Developer has furnished Owner with, at Developer's option, a
cash deposit, bond, letter of credit from an Institutional Lender or other
security.
As to liens filed by Clark Construction, the Developer agrees that upon
settlement of litigation with Clark Construction, all liens will be discharged.
F:~=ng~.%~.LL~CHRISTIN\RDAVoyalpalm Clark Exhibit B 4-22-03.doc
EXHIBIT "D"
FORM OF TOLLING AGREEMENT
61760.000002MIAMI 143909v3
TOLLING AGREEMENT
This Tolling Agreement ("Agreement") is made this __ day of , 2003, by and
between the RDP Royal Palm Hotel Limited Partnership and R. Donahue Peebles, (collectively,
the "Royal Palm") and the Miami Beach Redevelopment Agency (the "Agency") and the City of
Miami Beach ("the City"). The Royal Palm, the Agency, and the City shall be collectively
referred to as the "Parties."
WHEREAS, the Royal Palm contends it has grounds to assert, in a United States Court
and/or appropriate state court, certain potential federal and/or state claims against the Miami
Beach Agency and the City of Miami Beach concerning the Agreement of Lease among the
Parties, as well as the circumstances surrounding the RFP issued by the City of Miami Beach for
the development of a convention center hotel (the "Royal Palm's Potential Claims"); and
WHEREAS the City and the Agency contend they, or each of them, have grounds to
assert claims or counter-claims against the Royal Palm in a United States Court and/or
appropriate state court arising out of the same or related transactions and surrounding
circumstances as those contended by the Royal Palm (the "Agency/City Claims"); and
WHEREAS the Parties have engaged and wish to continue to engage in settlement
discussions regarding (i) the Royal Palm's Potential Claims that may be brought by the Royal
Palm against the Agency and the City, and (ii) the Agency/City Claims that may be brought by
the Agency and/or the City against the Royal Palm; and
WHEREAS the Parties desire to establish a period ("the Tolling Period") during which
they can consider and explore the possibility of resolving the Royal Palm's Potential Claims and
the Agency/City Claims without litigation.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
herein, the Parties agree as follows:
1. The recitals above are incorporated herein by reference.
2. This Agreement shall be effective upon execution and delivery by all Parties (the
"Effective Date"). The Tolling Period shall commence as of May 8, 2002 (the "Tolling Date")
and shall terminate as provided in paragraph 4, below. The period of time between the Tolling
Date and the termination date shall be referred to as the "Tolling Period".
3. The Parties agree that the allegations of laches and/or estoppel and the statute of
limitations are tolled during the Tolling Period as to the Royal Palm's Potential Claims and the
Agency/City Claims.
4. Any Party may terminate this Agreement at any time by giving thirty days'
advance written notice to the other Parties. This Agreement shall expire on the thirty-first (31st)
day after delivery of such notice as provided in paragraph 9 below. This Agreement shall
temfinate automatically at such time as all of the Closing Documents, as defined in the Letter of
Intent to Amend Royal Pahn Crowne Plaza Resort Agreements between RDP, the Agency and
the City, have been duly authorized, executed and delivered to all parties.
5. This Agreement does not constitute an admission of fact, law, and/or liability on
the part of any of the Parties. This Agreement shall not be construed as an admission against
interest or as a waiver of any right presently available to the Parties. This Agreement does not
constitute any admission regarding jurisdiction over the Parties, venue, the Parties' standing to
bring suit, or the validity or justifiability of any of the Royal Palm's Potential Claims or any of
the Agency/City Claims.
6. This Agreement may be executed in counterparts.
7. This Agreement and the obligations of the Parties hereto may not be altered,
amended, modified, extended, or renewed in any respect, except by a writing duly executed by
each of the Parties and the Parties agree that this Agreement constitutes the entire Agreement
between the Parties regarding the tolling of any and all statutes of limitation, contractual bars,
equitable bars or other time bars purporting to limit the time within which either party may
commence any lawsuit against the other.
8. This Agreement and all terms, provisions and covenants contained herein are
binding on and shall inure to the benefit of the Parties hereto, their subsidiaries, affiliates, parent
companies, successors and assigns.
9. Any notice under this Agreement shall be in writing and shall be delivered by
overnight courier, certified mail or any other method that verifies the date of delivery.
10. The Royal Palm shall serve the Agency with written notice under this Agreement
to the following address:
Miami Beach Redevelopment Agency
General Counsel
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Tel: (305) 673-7470
Fax: (305) 673-7002
With a copy to:
Joel N. Minsker, Esq.
Bloom & Minsker, P.L.
1110 Brickell Avenue, 7th Floor
Miami, Florida 33131
Tel: (305) 371-6800
Fax: (305) 908-3445
11. The Royal Palm shall serve the City with written notice under this Agreement to
the following address:
City of Miami Beach
City Attorney
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Tel: (305) 673-7470
Fax: (305) 673-7002
With a copy to:
12.
Joel N. Minsker, Esq.
Bloom & Minsker, P.L.
1110 Brickell Avenue, 7th Floor
Miami, Florida 33131
Tel: (305) 371-6800
Fax: (305) 908-3445
The Agency and the City shall serve the Royal Palm with written notice under this
Agreement to the following address:
Marty L. Steinberg, Esq.
Stuart K. Hoffman, Esq.
HUNTON & WILLIAMS
Mellon Financial Center, Suite 2500
1111 Brickell Avenue
Miami, Florida 33131
Tel: (305) 810-2500
Fax: (305) 810-2460
13. The signatories to this Agreement acknowledge that they have the requisite
authority to bind the respective Parties except that the City and the Agency will require the
approval of the City Commission and board members of the Agency.
RDP Royal Palm Hotel Limited Partnership
By: PADC Hospitality Corporation, I, as GP
By:
Dated:
Miami Beach Redevelopment Agency
By:
David Definer, Chairman
D~ed:
ATTEST:
Robert Parcher, Secretary
City of Miami Beach
By:
David Dermer, Mayor
Dated:
ATTEST:
R. Donahue Peebles
Dated:
Robert Parcher, City Clerk
F:hMinsker\C.M.B.\Crowne Plaza\Tolling Agreement Minsker V2.DOC