Loading...
247-96 #34 '''!"::: "4 RESOLUTION NO. 247-96 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING AND DIRECTING THE CHAIRMAN AND SECRETARY TO EXECUTE AN AGREEMENT OF LEASE, HOTEL DEVELOPMENT AGREEMENT, GARAGE DEVELOPMENT AGREEMENT, GARAGE EASEMENT AGREEMENT, STOCK PURCHASE AGREEMENT, DECLARATION OF CONDOMINIUM, CONDOMINIUM UNIT LEASE, BILL OF SALE, DE CLARA TION OF COVENANTS AND RESTRICTIONS, ESCROW AGREEMENT AND OTHER DOCUMENTS, AND AUTHORIZING AND DIRECTING THE REDEVELOPMENT AGENCY TO ENTER INTO THE TRANSACTIONS CONTEMPLATED BY SUCH AGREEMENTS AND DOCUMENTS, FOR THE DEVELOPMENT AND OPERATION OF THE WEWS MIAMI BEACH HOTEL AT 1601 COLLINS A VENUE, MIAMI BEACH, FLORIDA, AND A PUBLIC PARKING GARAGE PROJECT AT AND NEAR 16TH STREET BETWEEN COLLINS AND WASHINGTON A VENUES, MIAMI BEACH, FLORIDA; AND AUTHORIZING AND DIRECTING THE CHAIRMAN, EXECUTIVE DIRECTOR, GENERAL COUNSEL AND SECRETARY OF THE MIAMI BEACH REDEVELOPMENT AGENCY, AND THEIR RESPECTIVE DESIGNEES AND OUTSIDE CONSULTANTS, TO PERFORM ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE PURPOSES OF THIS RESOLUTION, INCLUDING, WITHOUT LIMITATION, MODIFYING, FILLING IN BLANKS IN AND ATTACHING EXHffiITS TO THE AGREEMENTS. WHEREAS, in February, 1993, the City Center/Historic Convention Village Redevelopment and Revitalization Area was officially established by the adoption of a Redevelopment Plan (the "Redevelopment Plan") resulting from the combined efforts of the City of Miami Beach (the "City"), the Miami Beach Redevelopment Agency (the "Agency"), Metropolitan Dade County, and the State of Florida; and WHEREAS, 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; and WHEREAS, pursuant to the Redevelopment Plan, the Agency acquired land, known as Site I - A, at and near 16th Street east of Collins Avenue to facilitate the development of a convention center hotel (the "Hotel"); and WHEREAS, in furtherance of the Redevelopment Plan, the City published a Request for Proposals (the "RFP") dated November 29, 1993, seeking, among other things, proposals for the development and operation of a convention center hotel; and WHEREAS, by virtue of a resolution adopted on July 21, 1994, after a public review process, the City and the Agency selected St. Moritz Hotel Corporation ("SMHC"), an entity affiliated with Loews Hotels Holding Corporation ("LHHC"), from among the groups which submitted proposals pursuant to the RFP and directed representatives of the Agency to negotiate the terms under which SMHC would develop, construct, own, and operate the Hotel in accordance with requirements of the RFP; and WHEREAS, the Agency and SMHC entered into that certain Letter ofIntent dated May 3, 1995, as amended (the "Letter of Intent"), which was approved by LHHC and the City, which, among other things, provides for the development, construction, furnishing, and equipping of the Hotel and the development and construction of a public parking garage (the "Public Garage") at and near 16th Street between Collins and Washington Avenues; and WHEREAS, after the execution of the Letter of Intent, the Agency proceeded to negotiate the terms of the various agreements and documents relating to, among other things, the development of the Hotel and the Public Garage; and WHEREAS, the proposed forms of the major agreements and documents to which the Agency is proposed to be a party (collectively, the "Agreements") concerning the Hotel and the Public Garage are attached hereto and incorporated herein; and WHEREAS, the Agency desires to enter into the Agreements and certain other agreements necessary in connection with the transactions contemplated hereunder; and WHEREAS, several conditions need to be met before the Agreements become legally binding; and WHEREAS, those conditions are described in that certain Escrow Agreement, which is also attached hereto and incorporated herein; and WHEREAS, in accordance with Florida Statutes Section 163.380, the City and the Agency have held a public hearing today concerning the disposition of certain properties relating to the transactions contemplated by the Agreements. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY as follows: 1. The Chairman and Members of the Agency have determined that the transactions contemplated by the Agreements serve a valid public purpose in accordance with the provisions of the Redevelopment Plan. 2. The Agency is authorized and directed to enter into the transactions contemplated by the Agreements and, in furtherance thereof, the Chairman and Secretary are authorized and directed to execute and deliver all necessary documents and agreements, including, without limitation, the following documents: 2 (a) That certain Agreement of Lease, attached hereto and incorporated herein as Exhibit "A", between the Agency and MB Redevelopment, Inc. ("MB"), an entity that will be affiliated with LHHC, pertaining to the land upon which the Hotel is to be developed. (b) That certain Hotel Development Agreement, attached hereto and incorporated herein as Exhibit "B", between the Agency and MB. (c) That certain Garage Development Agreement, attached hereto and incorporated herein as Exhibit "C", between the Agency and SMHC. (d) That certain Garage Easement Agreement, attached hereto and incorporated herein as Exhibit "D", between the Agency and MB. (e) That certain Declaration of Condominium, attached hereto and incorporated herein as Exhibit "E", between the Agency and MB. (f) That certain Condominium Unit Lease, attached hereto and incorporated herein as Exhibit "F", between the Agency and MB. (g) That certain Bill of Sale, attached hereto and incorporated herein as Exhibit "G", between the Agency and MB, concerning the property commonly known as the St. Moritz Hotel, having a street address of 1565 Collins Avenue, Miami Beach, Florida. (h) That certain Declaration of Covenants and Restrictions by the Agency, attached hereto and incorporated herein as Exhibit "H", pertaining to the land upon which the Hotel is to be developed. (i) That certain Stock Purchase Agreement, attached hereto and incorporated herein as Exhibit "I", between the Agency and LHHC, relating to the purchase by LHHC of the stock ofMB. (j) That certain Escrow Agreement, attached hereto and incorporated herein as Exhibit "J", between the Agency, the City, SMHC and LHHC. 3. The Chairman, Executive Director, General Counsel and Secretary of the Agency, and their respective designees and outside consultants, are authorized to take such actions as may be necessary to effectuate the purposes of this Resolution, including, without limitation, executing and delivering related agreements, making changes, additions or deletions to, filling in blanks in and attaching exhibits to the Agreements. 3 4. The Chairman, Executive Director, General Counsel and Secretary of the Agency, and their respective designees and outside consultants, are authorized to take such actions as may be necessary to effectuate the dispositions of property as referred to in this Resolution. 5. This Resolution shall take effect immediately upon its a PASSED and ADOPTED this 17th day of July, 19 ATTEST: Rob~ ~~lq SECRETARY I f\atto\taca \resoslagrsexec:.rda FORM APPROVED REDEVELOPMENT AGENCY GENJ: ~?yN~E~ 8y1ll ~ Date 1111/# L 4 Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673.7193 Fax: (305) 673-7772 REDEVELOPMENT AGENCY MEMORANDUM NO. 96-23 Date: July 17, 1996 TO: Chairman and Members of the Board of the Miami Beach Redevelopment Agency FROM: Jose Garcia-Pedrosa Executive Director SUBJECT: A RESOWTION OF T CHAIRMAN.AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING AND DIRECTING THE CHAIRMAN AND SECRETARY TO EXECUTE AN AGREEMENT OF LEASE, HOTEL DEVELOPMENT AGREEMENT, GARAGE DEVELOPMENT AGREEMENT, GARAGE EASEMENT AGREEMENT STOCK PURCHASE AGREEMENT, DECLARATION OF CONDOMINIUM, CONDOMINIUM UNIT LEASE, BILL OF SALE , DECLARATION OF COVENANTS AND RESTRICTIONS, ESCROW AGREEMENTS .AND OTHER DOCUMENTS, .AND AUTHORIZING .AND DIRECTING THE REDEVELOPMENT AGENCY TO ENTER INTO THE TRANSACTIONS CONTEMPLATED BY SUCH AGREEMENTS .AND DOCUMENTS, FOR THE DEVELOPMENT .AND OPERATION OF THE LOEWS MIAMI BEACH HOTEL AT 1601 COLLINS AVENUE, MIAMI BEACH, FLORIDA, AND A PUBLIC PARKING GARAGE PROJECT AT AND NEAR 16TH STREET BETWEEN COLLINS .AND WASHINGTON AVENUES, MIAMI BEACH, FLORIDA; AND AUTHORIZING AND DIRECTING THE CHAIRMAN, EXECUTIVE DIRECTOR, GENERAL COUNSEL AND SECRE TARY OF THE MIAMI BEACH REDEVELOPMENT AGENCY, AND THEIR RESPECTIVE DESIGNEES AND OUTSIDE CONSULTANTS, TO PERFORM ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE PURPOSES OF THIS RESOLUTION, INCLUDING, WITHOUT LIMITATION, MODIFYING, FILLING IN BLANKS IN .AND ATTACHING EXHIBITS TO THE AGREEMENTS. ADMINISTRATION RECOMMENDATION: It is recommended that the Mayor and City Commission and the Chairman and Members of the Redevelopment Agency (RDA) approve the above transactions and related documents, and authorize the execution of necessary documents and taking of necessity actions to implement the project. S()U11i J)()I~ l2edevel()pment Ulstr1ct CIIT C~~~12 l?edevel()pment Ulstlict AGENDA ITEM 2-C July 17, 1996 BACKGROUND : The city of Miami Beach and the RDA are at the threshold of an historic event. The first new major hotel in three decades is about to be built in Miami Beach. This event comes through the concerted efforts of this city Commission and RDA, its wisdom to appoint a respected community leader to chair the effort, and the hard work of its administrative and legal staff. ANALYSIS: The effort began in earnest with the creation of the City Center Redevelopment Area in February, 1993. An RFP was issued in November of 1993 and, after a thorough and professional selection process, Loews was ranked number one, on July 21, 1994. A detailed letter of intent was entered into on May 3, 1995, which committed the developer to enter into design development work for the project. This step is unprecedented in development agreements and has saved almost a year in the development process. The developer has obtained all necessary approvals from the City, except for the building permits, which can be issued immediately after this action today. The project is a high-quality, first-class convention hotel which will help bring substantial new business to the Convention Center. Several public projects will occur simultaneously with the hotel development: . The opening of 16th Street between Collins & Washington . The development of an BOO-car public parking garage . The extension of a built boardwalk from the southerly terminus of the present wooden boardwalk to Lummus Park . The beautification and improvement of Collins Avenue from 15th Street to Lincoln Road Finally, three major development projects to the south, the Il Villagio Condominiums, the 1500 Ocean project (Constructa), and the Crowne Plaza Hotel will complete the missing pieces of the urban fabric that will unite the Ocean Drive area to the City Center/Historic Convention Village area. CONCLUSION: The City Commission/RDA should approve the transactions. JGP: 1~5t ESCROW AGREEMENT THIS ESCROW AGREEMENT (the" Agreement"), dated as of the 17th da... of Juh- 1996, between MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate ~d politi~ (the" Agency"), the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (the "City"), ST. MORlTZ HOTEL CORP., a Florida corporation ("SMHC"), LOEWS HOTELS HOLDING CORPORATION, a Delaware corporation ("LHHC"), and SQUIRE, SA.~1)ERS & DEMPSEY, an Ohio general partnership (the "Escrow Agent"). RECIT ALS: A. In February 1993, the City Center/Historic Convention Village Redevelopment anC Revitalization Area was officially established by the adoption of the Redevelopment Plan, resulting from the combined efforts of the City, the Agency, Metropolitan Dade County and the State oi 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 Land, known as Site I-A, which it has agreed to make available for the Hotel. C. In furtherance of the Redevelopment Plan, the City published a Request for Proposals (the "RFP") dated November 29, 1993, seeking, among other things, proposals for the developmem and operation of a convention headquarters hotel. D. By virtue of a resolution adopted on July 21, 1994, after a public review process, the Agency selected SMHC from among the groups which submitted proposals pursuant to the RFP and directed representatives of the Agency to negotiate the terms under which SMHC would develop. construct, own and operate the Hotel in accordance with requirements of the RFP. E. The Agency and SMHC entered into a Letter of Intent (as the same may have been amended from time to time, the "Letter of Intent"), dated May 3, 1995, and approved by urnc anC the City, which, among other things, provides for the development, constrUction, furnishing and equipping of the Hotel. F. Representatives of the Agency and the City, and SMHC, with the advice and assistanee of counsel have agreed on the material terms of the principal definitive documents listed on Exhibit A.. attached hereto and made a part hereof (collectively, the "Escrowed Documents") necessary to implement the transactions contemplated by the Letter of Intent. W6.MI961920.011 G. By resolutions adopted July 17, 1996, 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 be become effective, subject to the provisions of this Agreement. H. By resolutions adopted July 17, 1996, LHHC bas approved the transactions contemplated by the Escrowed Documents, and has authorized and directed the appropriate officers of LHHC to date, execute and deliver the Escrowed Documents and cause them to be become effective, subject to the provisions of this Agreement. 1. Definitions. For purposes of this Agreement, although the Ground Lease, as defined in Exhibit A, is one of the Escrowed Documents, all defined terms used herein shall have the same meanings as ascribed to such terms in the Ground Lease, as defined in Exhibit A, except as otherwise noted. 2. Items in Escrow. The Agency, the City, SMHC and LHHC (collectively, the "Parties'') hereby deliver to Escrow Agent the original Escrowed Documents and Escrow Agent hereby acknowledges receipt of the Escrowed Documents. The Escrowed Documents 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. 3. Agreement of Escrow Agent. Escrow Agent agrees to act, without fee, in accordance with the tenns and conditions of this Agreement and the instructions contained herein. 4. Instructions and Conditions. Escrow Agent shall hold all the Escrowed Documents in escrow until the earlier of (a) the satisfaction or waiver by the Parties, each in their sole and absolute discretion, of those certain conditions precedent enumerated on Exhibit B, attached hereto and made a part hereof (collectively, the "Conditions") or (b) October 31, 1996 or such later date as the Parties may agree to in writing (the "Termination Date"). If by the Termination Date, Escrow Agent has not been notified 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 Termination Date has been extended, then Escrow Agent is instructed to destroy all signatures on the E~wed Documents. Upon Escrow Agent's receipt of written notice from the Parties that the Conditions have been satisfied or waived in accordance with the provisions of this Agreement, Escrow Agent is instructed to deliver the Escrowed Docwnents to the Parties at the place and time designated by the Parties in their notice to Escrow Agent of such satisfaction or waiver. Any Party or Escrow Agent may, at its option, demand a receipt acknowledging delivery of any Escrowed Docwnents. 5. Effective Date; Additional Signatures. Upon release of the Escrowed Documents in accordance with the provisions hereof, the consummation of the transactions contemplated by the Letter of Intent shall occur. In accordance therewith, (a) the officers for the Parties shall (i) fill-in any and all blanks in the Escrowed Documents, (ii) attach any and all exhibits that have not heretofore been attached -2- W6-HI961920.011 to the Escrowed Documents, (iii) make any necessary revisions to the Escrowed Documents as mutually agreed to by the Parties and (iv) 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 (I) original of each of the Escrowed Documents, upon release of the Escrowed Documents in accordance with the provisions hereof, the parties to the Escrowed Documents shall execute additional originals thereof, in order that each Party have original fully executed counterparts of the Escrowed Documents and (c) the Parties shall take or cause to be taken such further actions and execute and deliver or cause to be executed and delivered such other 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). 6. Disputes. (a) In the event of any disagreement between the Parties resulting in conflicting instructions to, or adverse claims or demands upon Escrow Agent with respect to the release of the Escrowed Documents, Escrow Agent shall refuse to comply with any such instruction, claim or demand so long as such disagreement shall continue, and in so refusing Escrow Agent shall not release the Escrowed Documents. Escrow Agent shall not be or become liable in any way to any of the Parties for its failure or refusal to comply with any such conflicting instructions or adverse claims or demands, and it shall be entitled to continue so to refrain from acting until such conflicting or adverse demands shall have (i) been settled by agreement and Escrow Agent receives notice thereof by all the Parties or (ii) finally been determined by a court of competent jurisdiction. (b) If any of the Parties or Escrow Agent shall be in disagreement about the interpretation of this Agreement, or about their respective rights and obligations, or about the propriety of any action contemplated by Escrow Agent. or if Escrow Agent receives or becomes aware of conflicting demands or claims with respect to this escrow or the rights of any of the Parties hereto or documents deposited herein or affected hereby, Escrow Agent may, but shall not be required to, file an action in interpleader to resolve the disagreement or dispute and, upon filing such action, Escrow Agent shall be released from all obligations under this Agreement. If any action arising out of this Agreement is commenced by any of the Parties, Escrow Agent may deposit the Escrowed Documents with the clerk of the court in which such action is commenced or pending and, upon depositing the Escrowed Documents, Escrow Agent shall be released from all obligations under this Agreem~nt. 7. Indemnity. (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), 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. -3- W6-HI961920.011 (b) Escrow Agent shall not be required to defend any legal proceeding which may be instituted against it in respect of the subject matter of this Agreement unless requested to do so by all the Parties and indemnified to Escrow Agent's satisfaction against the cost and expense of such defense. If any such legal proceeding is instituted against it, Escrow Agent agrees promptly to give notice of such proceeding to the Parties. Escrow Agent shall not be required to institute legal proceedings of any kind. 8. Liability, Duties and Responsibility of Escrow Agent. (a) Escrow Agent undertakes to perform only such duties as are expressly set forth in this Agreement. Escrow Agent shall not be deemed to have any implied duties or obligations under or related to this Agreement. (b) Escrow Agent may (i) act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; (ii) assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and (iii) assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions of this Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or corrections as to fonn, manner of execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing any instrument. (c) It is acknowledged that Escrow Agent is counsel for the Agency and the City. It is agreed that Escrow Agent shall not be disabled or disqualified from representing the Agency and the City, its officers, directors, employees or agents in connection with any dispute or litigation which may arise out of or in connection with this Agreement or the transactions contemplated by the Escrowed Documents as a result of Escrow Agent acting as Escrow Agent under this Agreement and SMHC and LHHC waive any claim or right to assert a conflict of interest arising out of or in connection with the foregoing. 9. 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 6r other commnnication with respect hereto, each such notice, demand, request, consent, "pproval or other communication shall be in writing and shall be effective for any purpose only if given or served by (a) certified or registered U.S. Mail, postage prepaid, return receipt requested, (b) personal delivery with a signed receipt or (c) a recognized national courier service, addressed as follows: If to SMHC or LHHC: St. Moritz Hotel Corp. 407 Lincoln Road Suite 6-k Miami Beach, Florida 33139 Attention: Mr. Eric A. Nesse -4- W6-HI961920.011 and to: Loews Hotels Holding Corporation 667 Madison A venue New York, New York 10021 Attention: Corporate Secretary with a copy to: Hughes Hubbard & Reed 201 S. Biscayne Boulevard, Suite 2500 Miami, Florida 33131 Attention: William A. Weber, Esq. If to the Agency or the City: Miami Beach Redevelopment Agency Executive Director 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: Miami Beach Redevelopment Agency General Counsel 1700 Convention Center Drive Miami Beach, Florida 33139 and to: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 with a copy to: City of Miami Beach City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139 -5- W6-HI961920.011 and Squire Sanders & Dempsey Two Renaissance Square 40 North Central A venue Suite 2700 Phoenix, Arizona 85004 Attention: Richard F. Ross, Esq. If to Escrow Agent: Squire Sanders & Dempsey 201 S. Biscayne Boulevard, Suite 2900 Miami, Florida 33131 Attention: Luis Reiter, Esq. Any such notice may be given, in the manner provided in this Section, on either 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 recipient thereof. Any Party hereto may by notice delivered to Escrow Agent and the other Parties, change its address for purposes of this Agreement. 10. Modification. No covenant, agreement, term or condition of this Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by all Parties. Escrow Agent shall not be bound by any modification of this Agreement, unless there is delivered to Escrow Agent a written modification signed by all the Parties. No such modification shall, without the written consent of Escrow Agent, modify the provisions of the Agreement relating to the duties, obligations or rights of Escrow Agent. II. Successors. This Agreement shall be binding upon and inw-e to the benefit of the Parties, their heirs, executors and administrators; provide~ however, that neither this Agreement nor any of the rights, interests or obligations hereunder may ~ assigned by any of the Parties hereto without the prior written consent of the other Parties. 12. Construction. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflict of laws. 13. 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 -6- W6-MI961920.0ll counterpartS, each of which shall be deemed an original but all of which together shall represent one instrUment. If any provision of this Agreement or the application thereof to any person or circumstances is, to any extent, fmally determined by a coon 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 DOt be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 14. Design Development Expense Reimbursement. Paragraph 11 of the Letter of Intent is hereby deleted in its entirety and replaced with the following: 11. The parties acknowledge that SMHC will, of necessity, incur significant out-of-pocket costs for professional architectural design, engineering and other technical advice and services in connection with the design, construction and permitting of the Hotel (the "Design Costs'') prior to the consummation of the transactions contemplated by the Escrowed Documents, as defined in that certain Escrow Agreement between the Agency, the City, SMHC and LHHC, dated July 17, 1996 (the "Escrow Agreement"). In consideration of the foregoing, and in order to insure the timely consummation of the transactions contemplated by the Escrowed Documents, SMHC and the Agency have agreed that SMHC's Design Costs (which Design Costs incurred by SMHC through the Termination Date (as defined in the Escrow Agreement) are hereinafter referred to as the "Total Design Costs"), will be subject to reimbursement, as follows: (a) if the Agency or the City, as applicable, has n04 prior to the Termination Date, entered into binding agreements to raise the funds necessary to meet its obligations as contemplated by Paragraph 2(bX3) and Paragraphs 3(a) and (b) of the Letter of Intent, then the Agency shall pay to SMHC the Total Design Costs, no later than fifteen (15) days after the later of (i) the Termination Date and (ii) submission by SMHC to the Agency of written documentation verifying that such Total Design Costs have been incurred; (b) if SMHC has not by the Termination Date entered into binding financial commitments to obtain the first mortgage financing as contemplated by Paragraph 2(b)(I) of the Letter of Inten4 SMHC shall bear all Total Design Costs incurred by it (although SMHC represents to the Agency tha4 as of the date of the Escrow Agreement, it has obtained such binding financial commitments); (c) if the Conditions (as defined in the Escrow Agreement) are not satisfied or waived by the Termination Date and the Parties thereunder fail to consummate the transactions contemplated by the Escrow Agreement and the Escrowed Documents, for any reason whatsoever (other than as expressly set forth in subparagraphs (a) and (b) above), SMHC shall bear one-half (1/2) of the Total Design Costs and the Agency shall pay to SMHC one-half (1/2) of the Total Design Costs, no later than fifteen (15) days after the later of (i) the Termination Date and (ii) submission by SMHC to the Agency of written documentation verifying that such Total Design Costs have been incurred. -7- W6-HI961920.011 IS. Termination. Paragraph 12(f) of the Letter of Intent is hereby deleted in its entirety and . replaced with the following: (f) Subject to the provisions of Paragraph 11, this Letter of Intent may be terminated by either party if the Conditions, as defined in the Escrow Agreement, have not been satisfied or waived in accordance with the provisions of the Escrow Agreement by the Termination Date, as defined in the Escrow Agreement. 16. Entire Agreement. This Agreement contains all of the promises, agreements, conditions, inducements and understandings between the Parties and there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them other than as expressly set forth herein or as may be expressly contained in any enforceable written agreements or instruments executed simultaneously herewith by the Parties hereto, except for (a) the Letter of Intent and (b) that certain Hold Harmless and Indemnification Agreement dated December 18, 1995 and December 20, 1995, between the Agency and SMIle, as the same may heretofore have been or may hereafter be amended. - 8 - W6-HI961920.011 EXECUTION IN WITNESS WHEREOF. the Parties. intending to be legally bound. have executed this Agreement as of the day and year ftrst above written. A TrEST: By: ~~lu-t~k Robert Parcher Secretary Date: ;t.''1/7/lfff. A TrEST: By:~OluA.1r l1-c..k Robert Parcher City Clerk Date: ;J...{'1 ''1,111/' W6-HI961920.011 MIAMI BEACH REDEVELOPMENT AGENCY Date: Date CITY OF ~ BEACH. FLORIDA /1 // FORM APPROVED REDEVELOPMENT AGENCY GENERAL ca s# '1V . 7/11 /~ L T of ('l "1 It;i:t h FORM APPROVED LEGAL ~~ By /fA! ~ Date 711(/~h -9- ST. MORITZ HOTEL CORP., By: .w,~ By: Nam Title: c.. A TIEST: Date: :Juk, nil ffb . Date: f" ~ LOEWS HOTELS HOLDING CORPORATION 3"f'1 /1/llf9k ("'I " '( ~ By: Ik a By: Name: Title: ATIEST: Date: ,...,/"{ 17, /'19(;, Date: 3..,('i II, f?9~ . (.0. "'~ ~ ~ ! I:' ~ ~,~~ - 10- W6-HI961920.011 The undersigned agrees to act as Escrow Agent under the terms and conditions of this Agreement and is executing this Agreement solely for such purpose. SQUIRE. SANDERS & DEMPSEY By: Name: Title: Date: 7...)17 17, /99& - 11 - W6-HI961920.011 Exhibit A List of Escrowed Documents I. Stock Purchase Agreement between the Agency, as Stockholder, and LHHC, as Buyer, in connection with the stock ofMB Redevelopment, Inc. ("MB"). 2. Lease"). Agreement of Lease between the Agency, as Owner, and MB, as Tenant (the "Ground 3. Hotel Development Agreement between the Agency, as Owner, and MB, as Developer (the "HDA "). 4. Garage Development Agreement between the Agency, as Owner, and SMHC, as Developer (the "GDA"). 5. Garage Easement Agreement between the Agency, as Grantor, and MB, as Grantee. 6. Convention Center Agreement between the City, as Owner, and MB, as Hotel Owner. 7. Completion Guarantee from Loews Corporation, as Guarantor. to the Agency, as Owner under the Hotel Development Agreement. 8. Completion Guarantee from the City, as Guarantor, to MB, as Tenant under the Ground Lease, regarding certain of the Agency's obligations under Article 21 of the Ground Lease. 9. Garage Easement Guarantee from the City, as Guarantor, to MB, as Grantee under the Garage Easement Agreement. 10. Stock Purchase Agreement Guarantee from the City, as Guarantor, to MB, as Grantee under the Garage Easement Agreement. 11. Declaration of Condominium for Loews Miami Beach Hotel, a Condominium, between the Agency and MB, as Co-Declarants. 12. Condominium Unit Lease, between the Agency, as Owner, and MD, as Tenant. 13. Bill of Sale for existing improvements, between the Agency, as Grantor, and MB, as Grantee. 14. Declaration of Covenants and Restrictions by the Agency, as Owner. W6-M1961920.011 IS. Quit-Claim Deed from the City. as Grantor. to the Agency. as Grantee, regarding certain real property relating to the Property I as defined in the GDA. -2- 1I6-MI961920.011 Exhibit B Conditions On or prior to the Termination Date, the following conditions shall have been satisfied, or waived by the Parties, each in their sole and absolute discretion: I. The Agency shall own fee simple title, free and clear of all encumbrances (except those encumbrances approved by SMHC in its reasonable discretion), to the Property, as defined in the GOA, on which the Garage and the 16th Street Opening, both as defined in the GDA, will be constructed. The Agency and the City shall diligently prosecute the pending condemnation action through its conclusion at the trial court level. 2. The Construction Plans, Development Drawings, GMP and Development Budget, all as defined in the GDA, shall have been approved Agency and SMHC. The Construction Plans and Development Drawings shall be based on the preliminary Construction Plans and Development Drawings as existing on the date of this Agreement prepared by the Architect and Consultant, both as defined in the GDA. 3. The Title Matters 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 Land. 4. The Developer and the Agency shall have approved the final Plans and Specifications and the Development Budget, as such terms are defined in the HDA, for the Hotel, and the Developer shall have approved in its sole discretion a satisfactory Guaranteed Maximum Price ("Gl\fP") Construction Contract for the construction of the Hotel in accordance with the Plans and Specifications, which GMP shall have been submitted to the Agency. 5. The Tenant under the Ground Lease shall have obtained first mortgage construction financing from Bankers Trust Company (as agent), on terms and conditions satisfactory to SMHC, in its sole discretion. 6. The City and/or the Agency shall have obtained (a) an aggregate of $32,000,000, from a combination of the Bonds and the HUD Funds, both as defined in the HDA, which $32,000,000 shall be deposited and applied as described in the IIDA, plus (b) additional funds from a combination of bond proceeds and State of Florida grant moneys sufficient for the construction of the Garage and the 16th Street Opening, both as defined in the GDA, which funds shall be used to complete the Garage and the 16th Street Opening, both as defined in the GDA, as contemplated by the GDA. W6-MI961920.011 7. The Parties shall have finalized (i) any and all blanks in the Escrowed Documents to be filled-in, (ii) any and all exhibits that have not heretofore been attached to the Escrowed Documents, (iii) any necessary revisions to the Escrowed Documents as mutually agreed to by the Parties and (iv) the following additional definitive agreements for signature, simultaneously with the release of the Escrowed Documents: (a) Ground Lease. Beach Easement between the Agency and MS, as described in Section 21.6 of the (b) Hotel Management Agreement between MB and Loews Miami Beach Hotel Operating Company Inc., as Hotel Manager. (c) Attornment Agreement between the Agency, MB and Loews Miami Beach Hotel Operating Company Inc., as Hotel Manager. (d) Master Lease, as defined in the Garage Easement Agreement, between the Agency and MB for the Retail Space, as defined in the Garage Easement Agreement. (e) Opinions of Counsel by Squire, Sanders and Dempsey and the General Counsel for the Agency pursuant to the Stock Purchase Agreement. (f) Opinions of Counsel by Hughes Hubbard & Reed and the General Counsel for LHHC pursuant to the Stock Purchase Agreement. (g) Opinions of Counsel by Squire, Sanders and Dempsey and the General Counsel for the Agency and the City Attorney for the City regarding the Escrowed Documents and other definitive agreements. (h) Opinions of Counsel by Hughes Hubbard & Reed and the General Counsel for LHHC and Loews Corporation regarding the Escrowed Documents and other definitive agreements. (i) Agreement between the City, the Agency and Bankers Trust Company regarding disbursement of funds. 8. . The Tenant under the Ground Lease shall have approved the Report for the 16th Street End, and any updates to the Reports, all as described in Exhibit 35.3 of the Ground Lease. -2- W6-HI961920.0ll