Indemnification w/ D. Peebles
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INDEMNIFICATION AGREEMENT
THIS INDEMNIFU;f\.TION AGREEMENT (the "Agreement") is made and entered
into on /5'11. /JJf-!tlFMV!i6lJ5, by and among R. DONAHUE PEEBLES (the "Indemnitor"),
and each of (i) MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and
politic (the "Agency"), and (ii) CITY OF MIAMI BEACH, a Florida municipal corporation
(the "City") (collectively, the "Indemnitees").
RECITALS:
A. Indemnitor is a partner in RDP Royal Palm Hotel Limited Partnership ("RDP"),
the developer of the Royal Palm Crowne Plaza Hotel (the "Hotel"), which Hotel was constructed
on land that is being leased by RDP from the Agency pursuant to an Agreement of Lease dated
May 28, 1998 and recorded in Official Records Book 18170, at Page 893, of the Public Records
of Miami-Dade County, Florida (the "Lease"); and
B. RDP and the Indemnitees have negotiated a settlement relating to certain claims
that have been made by each party against the other as generally reflected in that certain Letter of
Intent to Amend Royal Palm Crowne Plaza Resort Agreements dated November 25, 2003 (the
"Letter ofIntent").
C. Subsequent to the Letter of Intent and prior to the closing on the documents
contemplated in the Letter of Intent, North Fork Bank filed a foreclosure complaint against RDP
and RDP subsequently agreed to pay North Fork Bank in full for its loan, assign its option to pay
the Purchase Price under the Lease to Royal Palm Hotel Property, LLC who will then pay the
Agency the Purchase Price under the Lease, terminate the Lease and transfer the Hotel to Royal
Palm Hotel Property, LLC.
D. As a material inducement for and condition of Indemnitees agreeing to the
manner and procedures followed by RDP in connection with the transactions described in Recital
C hereinabove, Indemnitor has agreed to provide an agreement by Indemnitor to indemnify, hold
harmless and provide defense for Indemnitees regarding or relating to certain challenges by third
parties as to the manner and procedures followed by RDP in connection with the transactions as
generally described in Recital C hereinabove.
NOW, THEREFORE, in consideration of the recitals, agreements, covenants and
premises contained herein, and for other good and valuable consideration, the receipt and ade-
quacy of which are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated
herein by this reference thereto.
2. Indemnification. The Indemnitor hereby agrees to defend, indemnify and hold
harmless the Indemnitees from, against, and with respect of any damages, causes of action, costs,
losses, debts, liabilities, judgments, claims, obligations, attorney's fees, (including those for
appeals or post judgment proceedings, if any), taxes, interest on taxes, tax penalties, or other
matters (the "Indemnified Matters") arising out of, or relating directly or indirectly to, anyt
challenges by (i) North Fork Bank, as holder of a mortgage encumbering the leasehold interest in
the Hotel relating to the Amendment of even date herewith to the Declaration of Covenants and
Restrictions recorded in Official Records Book 18170, at Page 883, of the Public Records of
Miami-Dade County, Florida; (ii) North Fork Bank to the manner and procedures followed by
RDP in connection with the sale of the Hotel, the termination of the Lease, and the waiver of
certain Lease provisions by the Indemnitees to accomplish same; (iii) Florida Department of
Revenue and/or Comptroller for additional documentary stamp taxes and surtax resulting from
the manner and procedures followed by (a) the Agency in connection with the sale of the land
which is the subject of the Lease ("Land") to Royal Palm Hotel Property, LLC ("Buyer"); and
(b) RDP in connection with the sale of the Hotel to Buyer and the termination of the Lease; and
(iv) North Fork Bank to the sale of the Land by Agency to Buyer alleging non-compliance with
the terms of Section 36.3 of the Lease.
3. Indemnification in Connection with Legal Fees. Subject to the conditions set
forth in Sections 4 and 5, below the Indemnitor hereby agrees to indemnify and hold harmless
the Indemnitees with respect to any reasonable legal fees and costs of counsel (including those
for appeals or post judgment proceedings, if any) that may be incurred after the date of this
Agreement regarding the Indemnified Matters.
4. Retention of Counsel. Indemnitor shall have the right to designate counsel to
defend the interests of Indemnitees, which counsel shall be reasonably acceptable to Indemnit-
ees. If Indemnitor believes, from time to time and in good faith, that the defense of any Lawsuit
will be better served by other counsel, then Indemnitor shall be entitled, to retain and substitute
other counsel to defend the Indemnitees regarding such Indemnified Matters on thirty (30) days
prior written notice to the Indemnitees, which substitute counsel shall be reasonably acceptable
to Indemnitees. Nothing herein shall preclude the Indemnitees from retaining other counsel of
their choice at their own expense to advise them with regard to the Indemnified Matters.
5. Coooeration. The Indemnitees and their lawyers will fully cooperate with the
Indemnitor in connection with any legal matters relating to the Indemnified Matters. The
Indemnitees agree to provide Indemnitor and its lawyers with access to all relevant information
concerning the Indemnified Matters and any other indemnified activity including but not limited
to access to the Indemnitees, their agents and employees for interviews and other litigation
related matters and copies of interview memoranda, evidence, records, computer data, expert
reports, advance notice of meetings with adverse parties, advance notice of and opportunity to
attend any interviews of any witnesses that are expected to provide information about the
Indemnified Matters and advance notice of and opportunity to attend meetings to prepare any
witnesses or Indemnitees for deposition.
6. Settlement.
(a) In no event will the Indemnitees admit any liability with respect to, or set-
tle, compromise or discharge, any lawsuit regarding the Indemnified Matters without the
Indemnitor's prior written consent, which consent shall be at Indemnitor's sole and exclusive
discretion. Indemnitor shall have no liability or obligation under this Agreement with respect to
any settlement into which any Indemnitee might enter without Indemnitor's prior written
consent.
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(b) The Indemnitees hereby consent to, and agree to execute, any settlement,
compromise or discharge of any lawsuit or any part thereof regarding the Indemnified Matters
which Indemnitor may request, which by its terms obligates Indemnitor to pay the full amount to
be paid to settle, compromise, discharge or otherwise resolve such lawsuit or part thereof
regarding the Indemnified Matters and implies no admission of liability on the part of the
Indemnitees. Any settlement by Indemnitor that does not include the full release of Indemnitees
shall not affect Indemnitor's obligations under this Agreement.
7.. Non-Disparagement. Each party agrees not to take any action or make any
statement which disparages, criticizes, or places in a negative light the other, irrespective of
whether such statements would be actionable under statutory or common law liability theories.
This paragraph does not relate to statements made in good faith in the event of litigation.
8. Confidentiality. [8Ml] The parties hereto acknowledge that the City and the
Agency are governmental entities and subject to the open Government Provisions of Chapter
286, Florida Statutes, and the Public Records Provisions of Chapter 119, Florida Statutes.
Further, the Amendment to Declaration of Covenants and Restrictions and the Special Warranty
Deed are to be placed of Public Record simultaneously with the execution of all closing
documents. Subject to the aforegoing and to the extent permitted by law, all other documents
shall be retained, unpublished by either party to this Agreement and neither party shall
voluntarily disclose their contents. Involuntarily disclosure (which is permitted), for purposes of
this paragraph, shall mean disclosure when required by the above referenced Statutes or any
other applicable laws as well as (a) as may be hereafter mutually agreed to in writing, (b) as
ordered by a judicial tribunal, and (c) to any of such parties' directors, officers and employees
and managers or their advisors who need to know such information for the purpose of dispensing
legal advice or determining insurance coverages in connection with any of the Indemnified
Matters. In case of circumstances other than those set out above, the City Attorney shall be the
sole determinant as to whether a demanded disclosure is one which is required on an
involuntarily or voluntary basis. [8M2]
9. Severability. If any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining provisions of
this Agreement.
10. Miscellaneous.
(a) This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida, both substantive and remedial.
(b) This Agreement shall be binding upon the Indemnitees, the Indemnitor,
and their respective successors and assigns. No assignment of this Agreement or of any duty or
obligation hereunder shall be made (i) by the Indemnitor without the prior written consent of the
Indemnitees, or (ii) by the Indemnitees without the prior written consent of the Indemnitor. Any
such consent shall be in such party's sole and exclusive discretion.
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(c) This Agreement represents the final agreement of the parties hereto
regarding the subject matter hereof and supersedes any other oral or written representations or
agreements between the parties hereto relating to the subject matter hereof. Neither party has
relied on any representations not set forth in this Agreement.
(d) No amendment, modification, termination or claimed waiver of any of the
provisions hereof shall be valid unless in writing and signed by the party or an authorized repre-
sentative of the party against whom such modification is sought to be enforced.
11. Jurisdiction and Venue. The parties acknowledge that a substantial portion of the
negotiations, anticipated performance and e)($::cution of this Agreement occurred or shall occur in
Miami-Dade County, Florida, and accordingly each of the parties hereto irrevocably and uncon-
ditionally (a) agrees that any suit, action or legal proceeding arising out of or relating to the
enforcement of this Agreement shall be brought exclusively in the State or Federal courts in
Miami-Dade County, Florida; (b) consents to the jurisdiction of such court in any suit, action or
proceeding; and ( c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts.
12. Counte11>arts. This Agreement may be executed in counterparts, each of which
will be deemed an original, but all of which together shall constitute one and the same instru-
ment.
13. No Presumptions. The parties have participated jointly in the negotiation and
drafting of this Agreement with counsel. In the event an ambiguity or question of intent or inter-
pretation arises, this Agreement shall be construed as if drafted jointly by the parties and no pre-
sumption or burden of proof shall arise favoring or disfavoring any party by virtue of the author-
ship of any provisions of this Agreement.
14. Survival: This Agreement shall survive the closing of the transactions
contemplated in Recital C and paragraph 2 hereinabove.
15. WAIVER OF JURY TRIAL. INDEMNITOR AND INDEMNITEES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR INDEMNITEES TO ENTER
INTO THIS AGREEMENT. FURTHER, BOTH INDEMNITOR AND INDEMNITEES
HEREBY CERTIFY TO EACH OTHER THAT NO REPRESENTATIVE OR AGENT OF
EITHER ONE OF THEM, NOR THEIR COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE THAT EITHER ONE OF THEM WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION.
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[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned authority, personally appeared R. Donahue Peebles.
personally known to we or prodl)lrP a valid FI a driver's lice se as identification.
~lJ'Iltb._ Nathalie Legagne
!f~~~: CommissiOn # 00385416
:~. ~i cvnires Febr\l8IY 5. 2009
... ""'^'" lnc 100__1019
.1'1', . _dT""F.~.I--
He is
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My Commission Expires:
Notary Public-State of Florida at Large
Commission Number:
~sses:
~.~~~;I-
rint\Name: ().jJ \ J. 4jv; ~,
By:
~/~v4 .9: ftL-UL'./
Print NameP' Z/ev~,:'J F C:-:P,rd//
ATTEST: ( fl )( '() I
By: /lU Vt,tl 0 r a,ill'JA.L'\.
Robert Parcher, Secretary
STATE OF FLORIDA ) APPROVED AS TO
) SS: FORM & LANGUAGE
COUNTY OF MIAMI-DADE ) & FOR EXECUTION
All r1fJu/l ~ ;l.."f'"dS
BEFORE ME, the undersigned authority, personally appeared D~~~hairman
and Robert Parcher, Secretary of the MIAMI BEACH REDEVELOPMM.v816pll\iiltkAQeftcl\1tluCDelie
body corporate and politic, to me known to be the persons who signed the~.~'l~ent
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and acknowledged the execution thereof to be the act and deed of said Agency for the uses and
purposes therein mentioned, and that they affixed thereto the official seal of said Agency. Each
such individual is personally known to me or produced a valid drive's license as identification.
Witness my hand and official seal in the County and State last aforesaid this /6r.aay of
f -thuaf-' 2005.
~
No ar ublic-State of Florida at Large
Commission Number: D'O 31;J.-1' 8</
. . n Ex 'MIX MORAlES
I"'IJ ~ ~ N)IIc . SIale of FIollda
.
i" --.rml5,2lI>>
,1 ,CommIIIIon # DO 362918
... ... IIondecIIrNallonal NalaIy~
By:
Witnesses:
~~:~ ~~-;'i"-
~"~ 3 Lt~j
Print Name;.?' fd va-51 r 6-'f? iP r./
ATTEST: ()
By: ij[,t~Ut.~ PallJ.u--
Robert Parcher, City ~OVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
STATE OF FLORIDA
)
) SS:
)
111 fIJ~~;.. ~-( \--~
CIty Attomey. .~~ Date
"
BEFORE ME, the undersigned authority, personally appeared David Denner, Mayor and
Robert Parcher, City Clerk of the CITY OF MIAMI BEACH, a Florida municipal corporation,
to me known to be the persons who signed the foregoing instrument and acknowledged the
execution thereof to be the act and deed of said City for the uses and purposes therein mentioned,
and that they affixed thereto the official seal of said City. Each such individual is personally
known to me or produced a valid drive's license as identification.
0' /, Witness my hand and official seal in the County and State last aforesaid this /?f1ay of
VI'Ul~-, 2005.
COUNTY OF MIAMI-DADE
My Commission Expires:
". YAMIt.EX MORALES
fJl '\ Nolaty PubIlc . State of Florida
!' '~~Feb15.2lXl9
\~"'l! ~I Commllllon (I DO 362988
""1.;QIIf\.$'~""
'''It'''' Bonded Iv NatIonal Notary Aun.
Print Name: \Ja,...., 1(,)( (Y1n'1107
.
Notary Public-State of Florida at Large
Commission Number: .D.b ?J(P;). Cj ft <6
F:\MinskerICM.B.ICrownePlazalAmend to LeaselPeebles Indemnification AgreementV3.doc
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[BM1]REVISED TO COMPLY WITH SUNSHINE LAWS, ETC.
[BM2] WE WILL NOT AGREE TO ANY TERM FOR THIS INDEMNIFICATION IF THE STATUTES OF
LIMIT ATlONS HAVE RUN, THE INDEMNITOR CAN USE THAT AS A DEFENSE