Professional Documents
Culture Documents
pursuant
any purpose
privileged
inadmissible for
to Section
strictly
Fed.R.Evid.
LETTER OF INTENT TO
AMEND ROYAL PALM CROWNE
PLAZA
RESORT
Limited
City
Partnership (" RDP")
of
Miami
Agency (
Hotel
Beach
Redevelopment
Date: ;
theAgency"
" )
tUI,/)
into
an
and
made
2003
2.t5,
U~
Agreement
of
a part
hereof
Lease
regarding
as
the
in
A.
On
RECITATIONS:
the
the Public
if
Records
1998,
28,
the
land
fully
Book 18170,
May
at
Exhibit "
parties
entered
A"Land")
(" attached hereto
recorded
on
Page
of Miami- Dade
County,
Subsequent to
Florida ("Lease"). B.
began
C.
construction of the Royal Palm/ Shorecrest Crowne Plaza Hotel ("
Hotel").
During the construction of the Hotel, RDP encountered structural problems with the original Royal
Palm Hotel and soil contamination problems regarding the Land which alleg- edly resulted in
certain construction delays. A dispute arose amongst the parties regarding the aforesaid problems and delays resulting
in RDP' s refusal to pay certain Rental due under the Lease and the Agency' s
refusal to
the
pay
claims related to said
respectively deny and dispute all such
contamination
and
alleged
pm1ies
and
wishing to
or
avoid litigation
the
opportunities
Royal Palm
compliance with the Convention
owner
and its
successors
and
the
i.
sales tax
to the Hotel
1.
2 Clark Credit. Subject
RDP shall pay
1.2,
00 the
(
its present
Royal Palm
"
Clark
litigation
in
this Section
Hotel, LP, Et
The
District of Florida,
Clark
Construction
AI.vs. The
Southern
Opening Date.
International
Corp., Et
Group
styled RDP
Clark Construction
Group,
U. S. District
AI.,
Court,
or
Case
obtains a final non-appealable judgment in the Clark Litigation. RDP shall pay
this amount to the Agency within ten (
10)days of its receipt
of funds from, and to the extent, either
the settlement or the judgment
excess
funds
RDP
pays
at
t
o
r
n
eys'
fees
and
costs for the Clark
provides
after
its
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 Back
set forth in this Section
Rent which shall be clue only if the conditions
and then only to that extent. Any amounts paid to
are met
the Agency uncler
this Section 1.2 shall not apply
to the eight
if it
percent (8%)
return calculation as a component
of
the
Purchase
d)(
iii)
of the
payment
Date.
Base
defined
in
Lease
Purchase Price. 1. 3 Back
Rent and Additional Rent due,
the
of
Opening
Price as
the period of
shall
Section 36. 1(
survive
the
The
Rent After
plus
applicable
Hotel
sales tax,from
May
15,
15,2002 to May
deferred
and
payable
over
the
Rent") be
ten (
10)year period commencing in Lease Year 5 and ending in Lease Year
14.1. 4 Real Estate Taxes. The parties acknowledge that the 2002 real
2003 ("
Post
Opening
estate
taxes
Back
on the Improvements
shall
are
due
taxes are
on
were
the
responsibility
of RDP
the date of the execution of this LOI, RDP shall pay such taxes,
penalty interest prior to the execution of the Closing Documents.
prior to
penalties and
FUTURE
2.
RENTAL: Effective upon execution of this LOI,Additional Rent and Incentive
sales
over
and ending
Year 6
the
2 through 5 shall
Years
10)
period
commencing in Lease
year
the ten (
in Lease Year 15. Other than
as stated
shall continue to pay Base
Rent, Additional
all
on
such
same) as well as all other Rental from the date of execution of this LOI
pursuant to the
terms and conditions of the Lease. In the event that the Closing
is
days after
the termination of said negotiations.
3.
1 Declaration of Covenants and Restrictions.
Restrictions shall be amended to provide
that upon
full,
the following changes shall be effective, but
that
3.PURCHASE PRICE:
amended,
modified
or
1)
with
respect to the Shorecrest Land only, Section 2.2 shall no
apply. 2)with respect to both the RP Land and the Shorecrest
longer
CUtTent section
118-5 of
lieu of
requirement
hundred
day.
In
all
other
Time for
Price
shall be
as
those relating
presently
to
the
provided for
Rental
full
of
the
Lease Year
payment
Purchase
25
terms (such as
4.
REFINANCING:
Section
11. 13( a)
of the
The Refinancing Times stated in
or
the
on
to
beginning
of
fifth
(
Sth)
year
Lease
to
prior
the
Date ("First Refinancing");on or
after the Hotel Opening
prior to ten (10)
years after the closing
of the
First Refinancing (" Second Refinancing")
and
then every tenth ( 10th) anniversary of the Second Refinancing thereafter;
provided however, that the maturity date of any refinancing that extends beyond
the next required refinancing will not have to be repaid prior to its maturity provided said
maturity date is
no later than twenty ( 20)
years from the
last refinancing; provided further however, that when Tenant refinances the Balance of
its Debt, the Net Refinancing
Proce ds, as defined in Section 11. 13(
b) of
the Lease,shall be applied to
shall be changed
the
pay
to
described
in paragraphs
1.
SO%)
to Owner to pay the
Price
for
Cost
part
of the
percent (SO%)
to
for
amounts
then to
for
Purchase
Owner to
Tenant
Owner to
includes
the
7.
TOWN PARK HOTEL CORPORATION AS HOTEL
MANAGER: 7. 1 Recitals
of
hereto and
Lease attached
be included in
shall
terminate upon
the
Sale
the
of
the
incorporated
by
Ground Lease
Hotel
the
or
reference
Amendment;
earlier
termination of
or ii)
(
fifteen 15)
(
years
from
of the
Any
in
payments
and
Town
Park
will
be
deleted in its
"ote" md/
,
or costs in connection with the N
the Amendment
RDP
Re Town
Park
or
entirety.
7.3
Loan", as defined
are
true and
and the
City to
Amendment.
8.
FF&E RESERVE: 8.
1 Hotel FF&
E Reserve.
in Section
of the Lease
a)
16.5(
with respect
to
the Hotel
shall be changed
2 3 4 5 and thereafter
as
2%
3%
of Hotel Revenues 0%
1%
Article
33
of
the
9.
SHORECREST
to
Lease. Article 33 of the Lease shall be amended to delete
through (f)
therefrom subsections ( a)
and to permit in the area originally contemplated
for the
the
S
"
pace")
Restaurant (
the construction of a spa,additional meeting
space or other improvements for any reasonable hotel purpose that will benefit the operation
of the Hotel; provided, however, that such uses are permissible under all
applicable local laws and zoning ordinances. The sizes and dimensions of all such
facilities within the Space shall be as reasonably determined by RDP and the Operators ( defined
4%
Percentages
9.
facilities shall be
and 9.5,below,
with that of
consistent
and
hotel. 9.
2
the
like resulting
from the
create
cause
Shorecrest
as permitted
the
The
Declaration of
under
Condominium
in paragraph
Condominium
elects
to
the terms of
to contain provisions
shall
the sale or lease of the Space unit shall be subject to the
and ( ii)
the Space unit shall be operated in accordance
standards refelTed to
Space as
Land,and if RDP
Agency'
that (i)
s approval
9.5
of
this
LOr. 9.
4 Non- Disturbance Agreement. Upon request of RDP, the Agency shall execute
a
non- disturbance agreement in favor of a third party Space operator
an
reasonably acceptable to
"
Operator")
containing terms generally found in such agreements in
the Operator and the Agency, but the term of
which shall
than the earlier to occur of ( i)
be no longer
of
the expiration
Operator
requiring
the
agreement
of
Section
shall contain
the Space
Lease
v)
of the
1O.2(a)(
approval
quality standards pertaining to
which shall be enforced by RDP,
under
agre ment
or ii)
(
Agreement. In the event the Space
pursuant to an agreement between RDP
Space
Lease,
by
entitled "
List
this
Lor
by
approval
disputed items
subject to
List Of
other related
documents
as of the date of
last execution
Items
11.RELEASES
11.
1
RDP
Claims.
RDP
shall
waive
and release
any
and all
alleged delay
Closing
Closing
Documents.
1l.
Owner' s
Claims.
The
Agency and
whatsoever
have
contain
shall
Lease
satisfied
a written
controversies
City shall
the
cured,
all of
the
acknowledgment
claims
Lease is
in full
be amended
shall
appropriate
as
AGREEMENT: 12.1
to provide
The
Garage
Easement
and
for
obligation for
no such
payments
the
execution of
this
LOr.B. The
words "
and
approved
by Grantee"
In
Section
Sea) shall be
deleted.
the
the
as
identified
affirmative
obligation to
Agreement
shall
be
be
Hotel
rates
i)
and
no
and employees. D.
Section 9(a)
shall
guests
of the
have
for
Hotel
any
C.
RDP shall
charged
Royal
Palm Hotel at RDP'
election. 12.
2 The remainder
shall
remain
in
full
force
and
effect. 12.
3
the
parties
to
this LOI
which
In
event,
rights
13.
CONCESSION AGREEMENT UNDER THE
LEASE: 13.1 Fee Payment. RDP shall pay the Concession Fees
due and owing, if any,
described in Exhibit 14.
under the Conces ion Agreement
5 of the Lease
or
before
fi
ve
5)
(
days
after
the
on
last execution of
this LOr.The
parties are
now
not
aware of
payor
in connection with
the beachfront
Condominium. In the event that RDP creates a hotel condominium on the Shorecrest Land,
then, in that event, RDP shall pay ( or cause
applicable
beach
and
condominium
Clark
filed
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
however,
that
liens
these
to resolve
all
and
to
in
Exhibit "
to remove
C",
either by
resolution of the Clark Litigation or otherwise. 15. ATTORNEYS FEES: Each party shall bear
its own legal fees relating to this Lor and the Closing Documents except that
RDP shall reimburse the
Documents
Agency
at the
its
the Closing
charged by Bloom
00.Agency
of 250.
$
shall provide
legal fees
to
for professional
on a daily basis
supporting said reimbursement.
THIS
IN
as
considered
a result
LOI: Because
RDP
detai
led statements
ADDITIONAL
16.
documents
involved and
to
raise additional
not
inconsistent
with the
the
changes being
shall
in this LOI
17.
SPECIAL INDEMNIFICATION BY
shall indemnify and hold harmless and shall provide defense for
the
the City by counsel reasonably acceptable to the Agency and the
City regarding any and all matters arising out of, or relating directly or indirectly
to,any challenges by any third parties to this Lor 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
RDP: RDP
Agency and
1.
1
of this
Lor .18.COMPLETION GUARANTEE:
City
acknowledge
that
the
be terminated
by
Guarantor
in Section
2(
i)
of
said
Guarantee
Section 2(
ii)
complied with
has
its obligations under the Guarantee. The Completion Deadline is tol]ed until
said certificate
is
CO' s
delivered and the Fina]
are
parties acknowledge
that
DECLARA
issued. 19.
the payment
in
RESTRICTIONS:
19.1 The
PI;
ce to the Agency shal] not terminate
the Dec]
aration. 20.
CLERICAL
DOCUMENTS:
Non-substantive
grammatical
CHANGES TO THE
clerica] changes such as
LEASE
AND
the
elTors
in
the Hotel
Documents.
Definitive
Agreements.
bodies and the execution of this LOI by the appropriate Agency and City
the Closing Documents shall be drafted. Tenant shall
submit first drafts
of all of the Closing Documents to the Agency wi
thin fifteen (15)
days after such approval. The Closing Documents wil]
contain, among other things, representa- tions, waITanties,
condit onsc,ovenants and indemnities
and the like
typical in similar transactions, subject to the terms hereof. F1Il1hermore, 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
LOr. The consummation of the transactions contemplated hereby is conditioned
upon the negotiation and execution of the Closing Documents with terms, provisions and conditions mutually
officials,
acceptable
all necessary lender approvals and the satisfaction of the parties with all other
agreements and matters necessary or desirable with respect to the transactions
contemplated hereby. The parties shall comply with all applicable laws, statutes,
regulations and requirements and performance by the Agency, the City and RDP
under this LOI and the Closing Documents shall be subject thereto. The following
list of the documents which may need to be amended or created ( said list is
not meant to be inclusive af all required agreement) and additional agreements
is
shall be executed
by
the
parties
to
this LOI
as
required:
LIST OF AGREEMENTS
A.
B.
C.
DECLARATION
OF
COVENANTS
AND
RESTRICTIONS
AMENDMENT
D.
E.
F.
G.
H.
GUARANTY
J.
UCC FINANCING
as
by Ground Lease
amended
Assignment bv Agencv. In
Amendment 21. 2
ceases
to
exist,the
Documents will
Closing
benefit of the
perform the
by
six 6
( )months from
the execution
last sentence in
date
l.
l and
Non-binding.Except
for the
the last
paragraph
in paragraph 2 hereinabove and paragraph 21. 11 herinbelow which the parties ta this LOI
intend to be binding, (i)
no party shall have any legally binding obligation to any
ather party under this LOI until such time as the Closing Documents are executed
by all parties thereto; and (ii)no party will have any liability whatsoever under
sentence
if
any
21.5
Amendments.
reason related
to
with
this LOI,
this LO!.
6 Governing Law
21.
LOr,the Closing
Documents and their interpretation, validity and performance, shall be governed by the laws
of the State of Florida, both substantive and remedial, without regard to
principles of conflict of laws. The venue for any litigation arising out of this LOI or
the Clos-ing Documents shall be the Eleventh Judicial Circuit, MiamiDade County, Florida, if in state court, and the U.
S.District Court, Southern District
of Florida, if in
federal
the
court.
21. 7
in
Approval"
"
or "Consent." The
always
be
Areasonable consent@
use
deemed
of
to
except
where
Letter.Tenant
shall cause
the
Recognized Mortgagee, to execute and deliver its letter consenting to this LOr
as shown in Exhibit " E" attached hereto and incorporated by reference herein (
the "Consent Letter")to the Agency and the Cityand shall provide proof from
the Recognized M0I1gagee that the Recognized Mortgage has been extended and is in
good standing ( the "
30) days from
the date
Extension Letter")no later than thirty (
of execution of
this LOI ("
UP Letters Deli very Date").The parties hereto agree
l.
the last sentence
that,exceptfor the last sentence in paragraph
l,
of paragraph 2 and paragraph 21.11 of this LOI,the remainder of this LOI shall
not be in effect until the UP Letters Delivery Date. In the event the Consent
Letter and the Extension Letter are not delivered by the UP Letters Delivery Date,
paragraph l.
l,
then,inthat event, except for the last sentence in
the last sentence of paragraph 2 and paragraph 21.11 of this
LOI,
the remainder
of
this
of
shall
21.11
LOI
proceedings,
in effect
or postLOI shall
and/
as provided herein- above provided that RDP shall maintain the Lease and
related existing documents in good standing and free of any defaults ( the parties agreeing that
the
for
issues
failure of
cally
result
the
in
this
13 Privileged
21.
LOI
is
all
pay
all
recording
of
the Closing Documents or
21.16
Waiver
the
waiver of
Documents
contemplated
of
by this
shall, where
applicable, contain
amended to
that a default in
LO!.
Center
Agreement shall be
PARTNERSHIP,
Florida limited
partnership
By:
1,
Florida
co
ion,
IO9-
as General
Partner
By:
doc
03.
EDEVELOPMENT
14 -
Dated: \
By:David
Dermer
itle:
Attest:tUvu-:-if
pV(C
Chairman
Lu-Name:Robert
Parcher
Title:
1/ 25I
CITY
By:
Dermer
e: D vid
Title:
Attest: ~ ()
Mayor
ftJA-~
Name: Robert
Parcher
Title: City
Clerk APPROVED AS
TO FORM &
LANGUAGE FOR
EXECUTION
MiI1Sk~/
1- ~>
zd)
F:/
fUr ~&
uN~
1:~,:::~
gleell~:'~
MillSkel New
La!
i(
~:
2003
EXHIBIT B"
List of
9/ 2003
0/
Disputed
Items
is a list
of outstanding
disputes
regarding
the
Hotel Development
2.Owner'
Agreement: ARTICLE 4 OWNER PARTICIPATION 4.
Riqht
to Notice, Access and Review a)
v)
(
the delivery
s
by Developer
to the Owner of two (2)copies of:
1)
agreements
all
will
with
contractors (
that
with
Clark
Project
or
services
excess
Construction of the
of Two Hundred Fifty Thousand
Construction),
which shall
250,000),
respect to each Person
be aggregated with
Dollars ($
supplying materials or
services;
all drawdowns
5)
and loan proceeds
of equity
under
7)
Updated Development
5.
shall furnish
to
Owner, with
for
Article
Tenant'
Investment
list
delivery
of
an itemized "
any labor
of
or supplying material in
$
000 (
excess of 500,
FF& E)...
The items listed in Article 4 and
5 above, will be satisfied by the
except
all
Names of
Budget 8)
2
MISCELLANEOUS CONSTRUCTION PROVISIONS 5.
Capital
Summary ("
is
Not
i)
ii)
to Tenant if any funds remain after paying Owner the full Purchase
Price for Owner' s Interest in the Premises
Premises;
by
Refinancing
Proceeds" means the amount
Net "
2)
the
of the refinancing of the Debt less ( x)
Balance immediately before such refinancing of the Debt, (y)
the interest
reasonable
(
owing on such Balance, and z)
expenses,
brokerage
commissions and
refinancing transaction
char
prepayment fees and yield maintenance ges relating to the Debt
Tenant.
to
be
refinanced.
Tenant
or members, ( ii)
for distributions to any of the Borrower' s partners
i)
to repay
other
or
members,
(
repay
s
partners
of
the
any
any
person
iii)
to
Borrower'
or entity which loaned money to
the Borrower.
Exhibil
EXHIBIT C"
CLARK EXHIBIT)
The
issues
disputes regarding
the
Hotel
ARTICLE
2.
Completion of Construction
CONSTRUCTION 2.3.
Upon Substantial Completion of Construction of
of
Proiect
b)
the
furnish
the
the Project Developer shall
Owner
with
certificate of the Architect
the fol owing: i)
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
Contractor' s Final Affidavit, to be provided
Clark Construction v)
upon settlement
Clark Construction
with
2.
Owner' s
ARTICLE 4 OWNER PARTICIPATION 4.
The
Riqht
to Notice, Access and Review b)
critical path method ("CPM Schedule") The Developer will provide the last CPM
Schedule provided by Clark in the Developer' s possession. To the extent the Final
CPM Schedule is provided as a result of the settlement of litigation with
final
Clark,
14.
DISCHARGE OF LIENS
14.
Discharqe
of
Liens
a)
If any mechanic'
s,
statutory
including tax
lien (
Developer
shall
cause it to
liens) is filed against the
Site...
be discharged. However, Developer shall not be required to discharge any
such lien if Developer has furnished Owner with, at Developer' s option,
a cash deposit, bond, letter
laborer'
vendor' s,materialman' s,
or similar
s,
Project
of credit from an
filed by
litigation with
F:\
AMENDMENT TO AGREEMENT OF LEASE ( the " Amendment") is made and entered into
of the
day
LIMITED
of ,
2003
partnership ("
Florida
PARTNERSHIP,
BEACH REDEVELOPMENT
AGENCY,
as
limited
a public body
corporate
and
Owner")
and
MIAMI
politic ("
Tenant").
WITNES ETH
A.
Owner and Tenant entered
21,
1997,the(
Town
the " Property").B.
Lease"),relating
Park
to
Hotel
into
an Agreement
real
prope11y
of
Corporation, a
October
Lease, dated
more particularly
Tennessee corporation ("
described
therein (
Town Park"),is
the
and PADC Royal Palm Holdings, LLC (" Bon" ower")are parties to
L
"oan Agreement"),
dated April 30, 2001 the
that certain Loan Agreement
(
seven and
fortywhereby Town Park agreed to convey to Bon" ower
a
Tenant
A
limited
partnership
i
n
t
e
r
e
s
t
in
100 percent ( 47.66%)Class
in consideration for
66/
Note in
Bon"ower' s execution and delivery of that certain Purchase Money Promissory
"
which Note evidences the loan
favor of Town Park (the Note"),
the
Lease).C.Town Park
by
Town Park
one
%)
percent (l limited
to
Tenant for
partnership
interest in Tenant.
to
Park desires
Park
Pursuant
E.
cUlTently holds a
to Section 4. 01 f)
( of
an
equity
interest
in
purposes
the
of
Town
consideration
of
Lease
the
so long as
premises
and
in
receipt
sufficiency
of
which
is
hereby
acknowledged, the
parties
agreeas
that
to
the
and
con- ecL 2.
Equity Interest.
extent
secured
by the
purposes
and
duly
executed
by the parties
hereto.
WITNESSES:
OWNER":
MIAMI
Name '
JJaJA'
m f.
L;t'a.
RJJ Print
P/
BEACHREDEVELOPMENT By:
AGENCY
W/j)
])
Gl2m&L
Name '
C; '
P6//,
I'\
J
3f.
oU~
arYl
L
TENANT":RDP ROYAL PALM HOTEL
LIMITED
partnership
a Florida
By:PADC
partner
PARTNERSHIP,
Florida
corporation,
limited
Hospitality Corporation
as general
I,
By ' l21ff-~~~
Title: ?
ft.e b~
rt!
P/JQ.~
APPROVED AS TO
FORM & LANGUAGe
FOR EXECUTION
11-
Florida 33134
Beach
2003 Miami
Dli ve,Fourth
Floor
FOut1h
Re:Letter
of Intent to
Amend
Royal
Palm
Crowne Plaza Resort
is
Agreements
dated
copy
the subject
of
in
the fully
receipt
of
Mortgagee
defined
10
any
time
while
such
Recognized
Owner
this
Mortgage( s)
shall remain a lien
on
which
Miami Beach
Jorge
Redevelopment Agency
and-
Page 2 Accordingly, we hereby consent to the Lor subject to the negotiation and
inthe LO!)with terms, provisions and
execution of the Closing Documents ( as defined
City as well as the obtaining of
the
to
the
Agency
mut
u
al
l
y
acceptable
and
RDP,
conditions
our approval. Very
truly
yours, Roy
Tanis Senior
D.
Vice
President