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City
of
Miami
Beach -
City
Clerk '
s
ffice
R90
Status
Report
On The Letter
Of
Intent (
LOI)Negotiated
Between
The
City
O Miami
Beach,
The
Miami Beach
Redevelopment
Agency
And
RDP
Royal
Palm Hotel
Limited
Partnership (
RDP).
City
M a n a g e rs
ffice)
ACTION: Discussion
held.
Mayor
Dermer
to
meet
with
Mr.
Peebles to
give
a
good
faith
effort
tosee
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
t o d a ys
ommission
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,
herefore,
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
tosee
if he is
wlling
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.,
nd the
C i t ys
utside
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
meansthe
tolling agreement
gets
terminated
and
if
you
look
at
the
tolling
period,
May
8,
2002
to
the
day
the
final
negotiations
are
stopped,
he
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
laims
he is aware
of
that
he
would
want
to
assert:
1)
The
environmental
claims,
and
2)
His
claim
that he
was
kept
from
examning
the
building
before
he
bought
it.
These
Printed
by
the
City
C l e r k
s
ffice
Date Printed:
66
003
Time Printed:
3507
M
Source
Database:
M
MB
TYCLERoo4 erkoio
no
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City
of
Miami Beach -
City
Clerk '
sffice
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,
he
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:
34;
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
onthe
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
seeif an
agreement
canbe
reached.
Mayor
Dermer
stated that
he would
meet
with Mr.
Peebles
and
give
it a
good
faith
effort tosee
if an
agreement
can
be reached
and
to
report
back
at
the
next Commission
meeting.
Commissioner
Steinberg
withdrew
his second.
Handout
o
Reference
Materials
1. Letter from
R.Donahue
Peebles
toMr.
Jorge
M.
Gonzalez,
dated
May
21,
2003,
RE:
Royal
Palm
Crewne
Plaza
Resort -
Rent
Payments
2Roll call
Ballots
City
Clerk's
ote:
663
oss-
eference:
4
0/
03-
7B/RDA
3B and
5
1
003-
9Q.
For
the
record
it
is
noted
that
althought
the
City
Commission
approved
the
Letter of
Intent (
LOI),
Mr.Peebles
informed
the
City
that he
wouldnot
sign
the LOI.
Printed
by
the
City
C l e r k
s
ffice
Date
Printed:66
003
Time
Printed:3507
M
Source
Database:
M
MBTYCLER~
oo4
erkoio
no
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RESOLUTION
NO.
2003
5195
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 )
ND
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);
nd
WHEREAS,
on
November
13,
2002,
he
City
Commission
discussed
the
progress
of
the
negotiations
and
was
provided
a
summary
of
the
outstanding
issues
at
that
time
and
since
that
date,
he
parties
have
continued
toaddress
the
salient
issues
and
the
proposed
negotiated
terms
are
summarized
and
reflected
in
the
Letter
of
Intent (
LOI);
nd
WHEREAS,
the
LOI
addresses:
1)
Back
Ren/
n v i r o n m e n t a l
Delay
Claim/Sales
Taxes;
2)
Conversion
of
the
Shorecrest
Hotel
to
condominium/hoe
mshae
pon
payment
of
the
Purchase
Price
in
full,
i.. $
10,
000
000
lus
the
annual
return;
3)
mending
the
Convention
Center
Agreement
to
reduce
the Room
Block
requirement,
as
defined,
rom
350
rooms
to
257
rooms
per
day,
as
the
Royal
Palm
contains
257
rooms;
4)
efinancing;
5)
FFE
Reserve;
6)
Outstanding
Disputes;
7)
Restaurant
Agreement;
8)
Release
of
all
Claims
by
RDP,
RDA
and
City
of
Miami
Beach;
9)
mendments
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)t t o r n e y s
Fees;
12)
Special
Indemnification;
13e r m i n a t i o n ;
and
providing
for
14)
Tolling
Agreement
amongst
the
parties;
and
WHEREAS,
based
upon
the
resolution
ofall
outstanding
claims
and
issues,
pending
the settlement
with
Clark Construction,
and
the
agreement
to
allow
the conversion
of
the
Shorecrest
Hotel
to
a
condominium/hoemshae
nly
upon
payment
in full
of
the
Purchase
Price,
t
is
recommended
the
Chairman
and
Members
of
the
Board
adopt
the
attached
resolution.
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4/36
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
ofthe
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
30h
day
ol
ATTEST:
TY
CLERK
03
JMGCMCra
T~G
EN
DA~03~
pr3003Veg
uar\oyalPal
m
LOI
CTY
RES
doc
APPROVEDA~
O
FORM &LANGUAGE
FOR
EXECUTION
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CI'
IY
COMMISSION
aGENDA
ITEM
SUMMARY
Condensed
Title:
AResolution
authorizing
the
Mayor
and
City
Clerk
toauthorize
execution
of
the
Letter of
Intent
negotiated
the
City
of
Miami
Beach,
the Miami
Beach
Redevelopment
Agency
and
RDP
Royal
Palm
Hotel
Limited
Partnership (
RDP )
nd
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
ofthe
Letter
of
Intent?
Item
Summary/ e c o m m e n d a t i o n :
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/
hoe
mshae
nly
upon
payment
in full
of the
Purchase
Price,
t
is
recommended
the Chairman
and
Members
ofthe Board
adopt
the
attached
resolution.
Advisory
Board
Recommendation:
A
Financial
Information:
Source
of
Amount
Account
Approved
Funds:
1
2
3
4
Finance
Dept.
Total
City
Clerk'
s
ffice
Legislative
Tracking:
Christina
muervo
Sign-Offs:
Department
Director
Assistant
City
Manager
GENOA~
3~
p3003~*
gua~oyaIPalrn
LO]
CTY
SUMdoc
City
Manager
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CITY
OF
MIAMI
BEACH
CITY
HALL
1700
CONVENTION
CENTER
DRIVE
MIAMI
BEACH,
FLORIDA
33139 ·
www
iamibeachfl.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
ANDMEMBERS
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 )
ND
FURTHER
AUTHORIZING
THE crrY
ATTORNEY
TO
PROCEED
IN
PREPARATION
OF
THE
CLOSING
DOCUMENTS
TO
REFLECT
THE
TERMS
OUTLINED
IN
THE
LETER
OF
INTENT.
Administration
Recommendation:
Adopt
the Resolution.
Analysis:
As
you
are
well
aware,
over
the
past year,
he
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,
he
City
Commission
discussed
the
progress
of the
negotiations
and
was
provided
a
summary
of
the
outstanding
issues
at
that
time. Since
that
date,
he
parties
have
continued
toaddress
the salient
issues
and the
proposed
negotiated
terms
are
summarized
below
and
reflected
in the attached
Letter of
Intent (
LOI).
1)
Back
Ren/
nvironmental
Delay
Claim:
Although
not
specifically
referenced
in
the attached
LOI,
norwill
it
be
reflected
in
the
final
closing
documents,
as
reported
onNovember
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
toHotel
Opening
Date,
thereby
reducing
the
rent
due
by
50%
or a
total
reduction
of $
326,664
during
such
time
period,
as
permit ted
in
the
Lease
Agreement. (
Refer
to
Attached
Worksheet)
The
remaining
Unpaid
Back
Rent ,
otaling $
279,996
62
will
be
applied
as
a
credit
to
the
outstanding
environmental
claims.
Said
rent
credit
will not
apply
to
the8%
eturn
on
the
Purchase
Price
of
the land.
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April
30,
2003
City
Commission
Memorandum
Royal
Palm -
Letter
of
Intent
Page
2
of5
RDP
agrees
to reimburse
the
City/
R D A
for 50%
f
the
Unpaid
Back
Rent ,
approximately $
140,000,
rom
net
receipt
of
funds
upon
settlement
with
Clark
the
Clark
Credit ).
Rent
from
the
Hotel
Opening
Date (
May
2002-
April
30,
2003)
totaling
469,58341
ill
be
paid
within
five (
5)
ays
from
the
last execution
of the
LOI.
R D P 's
ounsel
has submitted
a
Request
for Technical
Assistance
Advisement
TAA)
egarding
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
onthe
full amount
of
Rent
within
five (
5)
ays
of
the
last
execution
of the
LOI.
If the
final TAA
has
not
been
received
prior
to
the
C i t y
s
June
20,
2003,
submission
ofsales
tax
to
the
State,
RDP
will
provide
any
unpaid
amount
to
equal
a
full
7%
n
the
total
Rent
by
June
15,
2003.
Upon
receipt
and
pursuant
to
the
TAA,
he
City
will
refund a
portion
of
the sales
tax,
f
applicable.
2)
Shorecrest
Hotel:
Upon
Payment
of
the Purchase
Price
in
full,
i.
. $
10,000
00
lus
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/hoemshae
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
asdescribed
in Section
118-
5f
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
1 0 t h
Lease
year
thereafter.
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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
cue
all
outstanding disputes (
ist
attached
as
Exhibit
B)
ithin
30
days
of
the execution
of the LOI.
The
outstanding
liens/claims
o other
obligations
with Clark
Construction (
isted
separately
as
theClark
Disputes )
ill
be satisfied
upon
settlement
of
litigation
with
Clark,
at
which
timethe
Complet ion
Guarantee
can
also
be
satisfied.
Any
future
defaults
will
immediately
terminate
the
LOI.
6)
Restaurant
Agreement:
The
City/
R D A
agree
to eliminate
the Restaurant
Agreement
Requirement
and
will allow
RDP
to
construct
a
Spa,
additional
meeting
space
oother
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,
he
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.
.
a
wash)
up
until
the
gross
parking
revenues
exceed $
12
million;
at
which
time,
he
Agency
was
obligated
to
pay
RDP66%
f
the
gross
revenues
that exceed $
12
million
in the
form
of
anadditional
Facility
Usage
Payment.
For
the
last
fiscal
year
2002,
the
Garage
reflected
gross
parking
revenues
of
1
85
52
nd
had
the
Hotel
been
opened
during
the
same
time
period,
RDP
would
have
been
entitled
to
receive
approximately $
37,
95.
This
will
represent
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Apd130,
2OO3
City
Commission
Memorandum
Royal
Palm -
Letter
of
Intent
Page
4 of5
an
annual
recurring
savings
to the
City/
RD A
as
long
as
the
Garage
Revenues
exceed $
12
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,
asset
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
egal
fees
up
to
the first $
6000
charged
by
the
C i t y
s
utside
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
ofthe
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)
onths
of
execution
of
the
LOI.
14)
Standstill:
In
connection
with the
execution
of
the
LO,
a
Tolling
Agreement
is
attached
as
Exhibit
D
hat
will
establish
a
period,
the
Tolling
Period ,
uring
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,
he
parties
agree
that
the
allegations
of
laches
and/or
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13/36
April
3O,
2OO3
City
Commission
Memorandum
Royal
Palm -
Letter
of
Intent
Page
5 of5
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
tothe other
party
of its
desire
to
terminate
same,
o
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
greement
to release
of
the Shorecrest
Property
for condominium/
hoe
mshae
pon
full
payment
of
the
Purchase
Price
in
full,
i.
. $
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,
he
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/hoemshae
nly
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.
JMGCMCra
GENDA~
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LOI CITY.CM
doc
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T h i s c o m m u m c a t lo n ~
privileged
settlement
commumcatlon
and
strictly
lnadnuss~be
I
lany
purpose Pursuant to ~cti°n
0.
408,
Flu,
stat,
and
Rule
408,
Fed:
R
Evidi
I
LETTEROF
NTENT
TO
AMEND
ROYAL
PALM
CROWNE
PLAZA
RESORT AGREEMENTS
Subject:
Parties:
Royal
Palm Crowne Plaza
Hotel
RDP
Royal
Palm
Hotel
Limited
Partnership (
RDP )
City
ofMiami Beach (
the
Cty )
Miami
Beach
Redevelopment
Agency (
he Agency )
Date: ,
2003
RECITATIONS:
A
On
May
28, 1998,
he
parties
entered
into
an
A g r e e m e n t
of
Lease
regarding
the
land moe
fully
described onExhibit
A (
Land )
ttached
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
Palmhorecrest
Crowne Plaza
Hotel (
Hoel ).
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 R DP 's
efusal
to
pay
certain Rental due under
the
Lease
and
the
A g e n c y
s
efusal
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
o
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
oIntent
to Amend
Royal
Palm Crowne
Plaza
Resort
Agreements (
LO )
shall
have
the
meanings
ascribed to them
in the
existing, applicable
documents.
Agency
means,
as
appropriate,
he
Agency
orthe
City
o
both,
as the case
may
be.
F
Agency
and
Owner
in their
desire
tomaintain
and
fulfill
their
commitment
to
pm
vide
the
African
American
community
with
opportunities
in
the
hospitality
industry,
are
willing
toamend the
Royal
Palm
Crowne
Plaza
agreements
subject
to the
Hotel'
s
ontinuing compliance
with the Convention
Center
Agreement
which
provides,
among
other
things,
that the
Hotel
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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
128373
38
n
Back
Rent
prior
to the
Hotel
Opening
Date;
i..,
rom
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)ay s
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 onsaid 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
he Clark
Credit )
plus
applicable
sales
tax
when,
and
if,
t
settles
its
present
litigation
with
The
Clark
Construction
Group
styled
RDP
Royal
Palm
Hotel,LP,
Et
A.vs.The
Clark
Construction
Group,
Inc.vs.
A rquitectonica
International
Corp.,
Et
A.,
.S
District
Court,
Southern District
of
Florida,
Case
No.
01
130
Viddlebrooks
Clark
Litigation )
o
if
it
obtains a
final
non-p p e a l a b l e
judgment
in the Clark
Litigation.
RDP
shall
pay
this
amount
to
the
Agency
within
ten (
10) ay s
of
its
receipt
of
funds
from,
and
to
the
extent,
either the
settlement
o
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
ifthe
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
eturn calculation
as a
component
of the Purchase
Price
as
defined
in
Section
36.
1(ii)
f
the
Lease (
the Return ).
his
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)ays
from the
last
execution of
this
LOI
the
sum
of
469,583
41
lu s
applicable
sales tax,
epresenting
the
Back
Rent (
Post
Opening
Back
Rent )
rom
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
obefore
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
f
the
Lease
as
to
said taxes.
Further,
o
the
extent
that
sales
taxes
are
due
on
real
estate
taxes which were
the
responsibility
of
RDP
prior
to
the date
of
the
2
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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)
hrough (
f)
nd to
pemfit
in
the
area
originally
contemplated
for
the
Restaurant (
he
Space )
he
construction
ora
spa,
additional
meeting space
o
other
improvements
for
any
reasonable
hotel
purpose
that will benefit the
operation
of
the
Hotel;
provided,
however,
hat
such
uses
are
permissible
under
all
applicable
local
laws
and
zoning
ordinances.
The
sizes
and dimensions
ofall
such
facilities
within the
Space
shall
be
as
reasonably
determined
by
the
RDP and the
Operators (
defined
below)
of the
respective
facilities.
Subsection (
g)
hall 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,
permi t
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
ifRDP elects
to create
a
condominium
unit for
the
Space
as
pemfi t ted
under
the terms of
the
Lease,
RDP shall
cause the
Declaration
of
Condominium
to contain
provisions
that (
i)
he
sale o
lease
of the
Space
unit
shall
be
subject
to
the
A g e n c y
s
pproval
and (
ii)
he
Space
unit
shall be
operated
inaccordance
with the
quality
standards
referred to
in
paragraph
6 of this
LOI.
6.4
Non-
isturbance
Agreement.
Upon
request
of
RDP,
the
Agency
shall
execute
anon-isturbance
agreement
in favor of
a
third
party
Space
operator
an
Operator )
ontaining
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
occu
of (
i)
he
expiration
of
the third
party
Space
agreement
o (
ii)
wenty (
20) ears.
6.5
Operator
Agreement.
In
the
event
the
Space
is
managed
o
operated
by
an
Operator
pursuant
to an
agreement
between
RDP
and
Operator,
said
agreement
shall be
deemed
tobe Sublease
under
the
Lease
requiring
Agency
4
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approval
under Section
102(v
f the
Lease,
the
agreement
shall contain
quality
standards
pertaining
to the
operation
and
physical
condition
othe
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
ntitled Lst
of
Disputed
Items
s 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 cue
all
of the
RDP
Items
ono
before
thirty (30) ay s
from
the date of execution
of
this LOI
except
for
those
items
listed
inExhibitCttached
hereto
and
specifically
incorporated
herein.
o
RELEASES
OF
ALLCLAIMS
BY
RDP~
THE
AGENCY AND
THE
CTY
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
o
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
xcesscontribution
claim
and
any
other
claims
of
any
kind
whatsoever
against
RDP
upon
the execution
ofthe
Closing
Documents.
8.3
Acknowledgement.
Provided
that
all
of
the temxs
and conditions
of
this LOI
have
been satisfied
by
all
parties,
he
amendment
to the Lease
shall
contain
a
written
acknowledgment
that
all
alleged
claims
and
other
alleged
defaults
have been
cured,
settled
and
or
waived,
hat
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
nofurther
obligation
for
the
payment
ofUse
Fees
and
Facility
Usage
Payments
and
nosuch
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.
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C.
RDP shall have
no
affirmative
obligation
to
use the
Garage
for
its
Hotel
guests
and
employees
D Section
9(a)
hall 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)
he
rates
charged
to
the
general
public
at
the
Garage
facility
and identified
as
the maximum
daily
rate o (
ii)
he
valet
rate
charged
by
the
Royal
Palm
Hotel
at
R DP '
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,
hen,
n
that
event,
he
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
inExhibit
14.5of
the Lease
on
o before
five (
5)
ays
after
the last
execution
of this LOI.
The
parties
are
not
nowaware
of
any
such
outstanding
fees.
10.
2
License
Fees.
RDP shall
pay
ocause
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
onthe
Shorecrest
Land,
hen,
n
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,
ncluding
liens
filed
o
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,
hat
nothing
contained
herein
shall
relieve
RDP
of
its
responsibility
to
remove
these
liens
and
to
resolve
those
matters
contained
in
Exhibit
C ,
ither
by
resolution
of
the
Clark
Litigation
o
otherwise.
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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
00
charged
by
Bloom &
Minsker,
P
L,
ased
upon
an
hourly
rate
o $
50.
00
Agency
shall
provide
to RDP detailed
statements
for
professional
services
showing
time
and
activity
ona
daily
basis
supporting
said
reimbursement.
13.
ADDITIONAL
TERMS~
CONDITIONS
AND
ISSUES NOT
COV-
ERED
IN
THIS
LO:
Because
of the
complex
nature of
the
documents involved
and
the
changes
being
considered
as
a
result of
this
LOI,
RDP,
he
Agency
and the
City
shall
have
the
right
to
raise
additional terms
and
conditions
and issues not
covered in this
LOI
and which
arenot inconsistent
with
the
terms
of
this
LOI
as
the
actual
draft-
ing
of
the
documents
occus
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,
o
relating
directly
o
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
LO.
15. COMPLETION
GUARANTEE:
15 .1
The
Agency
and
the
City
acknowledge
that
the
Guarantor
under
the
Complet ion
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 C O's
are issued
as
contemplated
by
Section
2(
ii)
f
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
C O'
s
re
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.
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17.
CLERICAL
CHANGES
TO THE
LEASE AND
RELATED EXIST-
ING
DOCUMENTS:
Non-
ubstantive
clerical
changes
such as
current
mailing
addresses
in the
notice
provisions
and
grammatical
erros
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,
he
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
ereof.
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,
he
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
o desirable
with
respect
to
the transactions
contemplated
hereby.
The
parties
shall
comply
with
all
applicable
laws,
statutes,
regulations
and
requi rements
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 o
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
ELEASE
OF
CLAIMS
CITYS
ELEASE OF
CLAIMS
RDPSELEASE
OF
CLAIMS
SPECIAL
INDEMNIFICATION
BY
RDP
TERMINATION
OF
COMPLETION
GUARANTY
J.
UCC
FINANCING
STATEMENTS -
to renew
lease
UCC-I s
s
amended
by
Ground
Lease
Amendment
K SCROW
AGREEMENT.
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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 (
he
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;
he
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
ofthis
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
o
entities
not
a
party
to
this
LOI
and
moe
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
o
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]
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AGREED
AND
ACKNOWLEDGED:
RDP
ROYAL
PALM HOTEL
LIMITED
PARTNERSHIP,
a
Florida
limited
partnership
By:
By:
PADCHOSPITALITY
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
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EXHIBIT
B
The
following
is a
list
of
outstanding
disputes
regarding
the
Hotel
Development
Agreement:
ARTICLE
2
CONSTRUCTION
23
Completion
of
Construction
of
the
Proiect
b
pon
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
i.ht
to
Notice,
Access
and Review
a (
v)
the
delivery
by
Developer
to
the
Owner
of
two (
2
opies
o:
1)
all
agreements
with
contractors (
that
will
be
provided
upon
settlement
with
Clark
Construction),
ubcontractors,
suppliers,
vendors
and other
Persons
supplying
materials
o
services
in
connection
with the Construction
of
the
Project
in
excess
of
Two Hundred
Fifty
Thousand
Dollars ($
250,000),
hich shall
be
aggregated
with
respect
toeach
Person
supplying
materials
o
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
performng
any
labor o
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
D e v e l o p e rs
delivery
of
an
itemized
Project
Cost
Summarization
and
Debt/Equity
Capital
Investment
Summary (
Project
Capitalization
Recap )
egarding
the
Project.
The
following
is
a list
of
outstanding
disputes
regarding
the
Agreement
of Lease:
ARTICLE
11 .
MORTGAGES
11.13.
R e f l n a n c i n .q
f
Debt
b
e f i n a n c i n .
q
ot
Related
to a
Default -
If Tenant
refinances
its
Debt
in
the
ordinary
course
of
business,
and
not
related
to
any
Event
of
Default,
he
Net
Refinancing
Proceeds
shall
be
applied
in
the
following
order:
i)
o Owner
to
pay
the
Purchase
Price
for O w n e rs
nterest
in
the
Premises;
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EXHIBIT
C
LIST
OF CLARKCONSTRUCTION
ITEMS
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EXHIBIT
C
CLARK
EXHIBIT)
The
following
is
a
list of
outstanding
Clark
issues
disputes
regarding
the
Hotel
Development
Agreement:
ARTICLE
2CONSTRUCTION
23
Completion
of
Construction
of
the
Project
b
pon
Substantial
Completion
of Construction
of
the
Project Developer
shall
furnish the
Owner with
the
following:
i)
ertificate
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)
o n t r a c t o rs
inal
Affidavit,
o
be
provided
upon
settlement
with Clark
Construction
ARTICLE
4 OWNER
PARTICIPATION
4.2
Owner's
iqht
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
D e v e l o p e rs
ossession.
To
the extent
the Final
CPM Schedule
is
provided
asa
result
of
the
settlement
of
litigation
with
Clark,
he
Developer
will
provide
same.
ARTICLE
14.
DISCHARGE
OF
LIENS
14.
2
Discharqe
of Liens
a)
f
any
m e c h a n i cs
a b o r e r
s
e n d o rs
a t e r i a l m a n
s
similar
statutory
lien
including
tax
liens)
s
filed
against
the
Project
Ste...
eveloper
shall
cause
it
to be
discharged.
However,
Developer
shall not
be
required
to
discharge
any
such
lien
if
Developer
has
furnished
Owner
with,
at
D e v e l o p e r
s
ption,
a
cash
deposit,
bond,
letter
of
credit
from an
Institutional
Lender
o
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~
g~L~
HRSTNDAVoyapam
lark
Exhibit
B
423
oc
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TOLLING
AGREEMENT
This
Tolling
Agreement (
Agreement )
s
made
this __
day
of ,
003,
by
and
between
the
RDP
Royal
Palm
Hotel
Limited
Partnership
and
R
Donahue
Peebles, (
collectively,
the
Royal
Palm )
nd
the Miami Beach
Redevelopment
Agency (
he
Agency )
nd
the
City
of
Miami
Beach (
the Cty ).
he
Royal
Palm,
the
Agency,
and
the
City
shall
be
collectively
referred to
as the
Parties.
WHEREAS,
he
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
ofMiami
Beach
for
the
development
of
a convention
center
hotel (
he Royal
Palm'
s
otential
Claims );
nd
WHEREAS
the
City
and
the
Agency
contend
they,
o
each
of
them,
have
grounds
to
assert
claims
o
counter-claims
against
the
Royal
Palm
in a
United States
Court
and/
or
appropriate
state
court
arising
out
of
the
same
o
related
transactions
and
surrounding
circumstances
as
those
contended
by
the
Royal
Palm (
he
Agency/Cty
Claims );
nd
WHEREAS
the
Parties have
engaged
and
wish
to continue
to
engage
in
settlement
discussions
regarding (
i)
he
Royal
Palm's
otential
Claims
that
may
be
brought
by
the
Royal
Palm
against
the
Agency
and
the
City,
and (
ii)
he
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 (
he
Tolling
Period )
uring
which
they
can
consider
and
explore
the
possibility
of
resolving
the
Royal
Palm's
otential
Claims
and
the
Agency/City
Claims
without
litigation.
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NOW,
THEREFORE,
in consideration
of
the
mutual covenants
and conditions set
forth
herein,
he 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 (
he
Effective
Date ).
he
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
otential
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
onthe
thirty-irst (
31st)
da y
after
delivery
of such
notice as
provided
in
paragraph
9
below.
This
A g r e e m e n t
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
Ag reemen ts
between
RDP,
he
Agency
and
the
City,
have been
duly
authorized,
executed
and
delivered
to
all
parties
5
This
Agreement
does
not
constitute
an
admission
of
fact,
aw,
and/or
liability
on
the
part
of
any
of
the
Parties.
This
Agreement
shall not be
construed
as
an
admission
against
interest
o 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,
o the
validity
o
justifiability
of
any
of
the
Royal
Palm'
s
otential
Claims
o
any
of
the
Agency/City
Claims.
6
This
Agreement
may
be
executed
in
counterparts.
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34/36
7
This
Agreement
and
the
obligations
of
the
Parties
hereto
may
not
be
altered,
amended,
modified,
extended,
o
renewed in
any
respect,except
by
a
writing
duly
executed
by
each
of
the
Parties
and the
Parties
agree
that
this
A g r e e m e n t
constitutes
the
entire
Agreement
between
the Parties
regarding
the
tolling
of
any
and all statutes
of
limitation,
contractual
bars,
equitable
bars
o 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
onand
shall inure
to
the
benefit
of
the Parties
hereto,
heir
subsidiaries,
affiliates,
parent
companies,
successos
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,
th
Floor
Miami
Beach,
Florida
33139
Tel: (
305)
673-7470
Fax: (
305)
673-7002
With
a
copy
to
Joel
N
Minsker,
Esq.
Bloom &
Minsker,
PL
1110
Brickell
Avenue,
t
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:
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