Section D Hotel Dev. Agreement
ROYAL PALM CROWNE PLAZA RESORT
MIAMI BEACH, FLORIDA
HOTEL DEVELOPMENT AGREEMENT
between
MIAMI BEACH REDEVELOPMENT AGENCY
("Owner")
and
RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP
("Developer")
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Page
TERMS OF AGREEMENT ....................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.1 Conditions Precedent to Developer's Commencement " . '
of Construction of the Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . :-'-.9 .
Section 2.2 Commencement and Completion of Construction of the PrQject. . . . . . . 10
Section 2.3 Completion of Construction of the Project. . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3.
PLANS AND SPECIFICATIONS ........................................ 12
Section 3.1 AWroval and Modification ofPreliminax:y Plans and Specifications. . . .12
Section 3.2 Approval and Modification of Plans and Specifications. ............ 13
Section 3.3 Riiht of Developer to Proceed with Disapproved Chan~es. .......... 15
Section 3.4 Compliance with Requirements: Construction Standards. ........... 15
Section 3.5 Bud~et and Chan~e Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
. Section 3.6 Desi~n and Decor. .......................................... 16
Section 3.7 Development Dispute. ....................................... 17
Section 3.8 Developer's Fee and Expenses. ............................... 17
ARTICLE 4.
OWNER PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 4.1 Owner' s Ri~ht to Use Field Personnel. .......................... 18
Section 4.2 Owner's Ri~ht to Notice. Access and Review. .................... 19
ARTICLE 5.
MISCELLANEOUS CONSTRUCTION PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 22
Section 5.1 Title to the Existin~ Hotels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.2 Names of Contractors. Materialmen. etc. ........................22
Section 5.3 Construction A~reements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.4 Demolit!on of the Proiect Site. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
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ARTICLE 6.
FINANCING OF PROJECT CONSTRUCTION
AND DISBURSEMENT PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.1 Owner's Contributions. ...................................... 25
Section 6.2 Developer's Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.3 ~.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.4 Expedited Processin~. ............................. ~ . . . .- . . ~.-. 26 .
ARTICLE 7.
INSURANCE ......................................................... 27
ARTICLE 8.
DAMAGE, DESTRUCTION AND RESTORATION ........................27
Section 8.1 Casualty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.2 Effect of Casualty on this A~reement. . . . . . . . . . . . . . . . . . . . . . . . . . . .27
ARTICLE 9.
CONDEMNATION .................................................... 27
Section 9.1 Takin~.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 9.2 Effect ofTakin~ on this A~reement. ............................28
ARTICLE 10.
RIGHTS OF RECOGNIZED MORTGAGEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 10.1 Notice and Ri~ht to Cure Developer's Defaults. ....... . . . . . . . . . . . . 28
ARTICLE 11.
NO SUBORDINATION ................................................ 29
ARTICLE 12.
MAINTENANCE AND REPAIR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Section 12.1 Maintenance of Project Site. ..................................29
Section 12.2 Waste Disposal. ............................................30
ARTICLE 13.
REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 13.1 Requirements. ............................................. 30
ARTICLE 14.
DISCHARGE OF LIENS ............................................... 31
Section 14.1 Creation of Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 14.2 Dischar~e of Liens. ......................................... 31
Section 14.3 No Authority to Contract in Name of Owner. .................. . . .33
ARTICLE 15.
NOLIABILITYFORINJURYORDAMAGE,ETC. .......................33
ARTICLE 16.
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . .. . . . . . . . . . . . . . . 33
Section 16.1 Indemnification Generally. ................................... 33
Section 16.2 Governs A~reement. ........................................ 33
Section 16.3 SurvivaL.................................................. 33
ARTICLE 17.
CERTIFICATES BY OWNER AND DEVELOPER .........................34
ARTICLE 18.
RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS. . . . . . . . . . . . . . 34
Section 18.1 Ri~ht to Perform Other Party's Obli~ations. .................... . . 34
Section 18.2 Dischar~e of Liens. ......................................... 34
Section 18.3 Reimbursement for Amounts Paid Pursuant to this Article. .......... 35
Section 18.4 Waiver. Release and Assumption of Obli~ations. .. . . . . . . . . . . . . . . . . 35
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ARTICLE 19.
EVENTS OF DEFAULT, CONDITIONAL
LIMITATIONS, REMEDIES, ETC. ......................................35
Section 19.1 Definition................................................. 35
Section 19.2 Enforcement of Performance. ................................. 38
Section 19.3 Expiration and Termination of A~reement. . . . . . . . . . . . . . . . . . . . . . . .38
Section 19.4 Strict Performance. ............................... _' . . .. . . -' . . 38
Section 19.5 Ri~ht to Eqjoin Defaults ...............................:... :-. '39.
Section 19.6 Remedies under Bankruptcy and Insolvency Codes. . . . . . . . . . . . . . . . .39
Section 19.7 In~ection. ................................................39
ARTICLE 20.
NOTICES, CONSENTS AND APPROVALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 20.1 Service of Notices and Other Communications. ...................40
Section 20.2 Consents and Ap,provals. .....................................42
Section 20.3 Notice of Detailed Plans. .......... . . . . . . . . . . . . . . . . . . . . . . . . . . .44
ARTICLE 21.
FINANCIAL REPORTS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 21.1 Books and Records: Audit Ri~hts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 22.
ARBITRATION....................................................... 45
Section 22.1 Expedited Arbitration of Development Disputes. .................. 45
Section 22.2 Liti~ation.................................................. 47
ARTICLE 23.
[RESERVED] ......................................................... 47
ARTICLE 24.
INVESTIGATIONS, ETC. ..............................................47
Section 24.1 Cooperation in Investi~ations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
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ARTICLE 25.
HAZARDOUS MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 25.1 General Provision. .......................................... 48
Section 25.2 SurvivaL.................................................. 48
ARTICLE 26.
MISCELLANEOUS ................................................... 48
Section 26.1 Govemin~ Law and Exclusive Venue. .......................... 48
Section 26.2 References................................................. 48
Section 26.3 Entire A~reement. etc. ............................... . . . . . . . . 49
Section 26.4 Invalidity of Certain Provisions. ............................... 50
Section 26.5 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 26.6 Performance at Each Party's Sole Cost and Expense. .... . . . . . . . . . . . 50
Section 26.7 Rec02nized Mort2a2ee Char2es and Fees. .......................50
Section 26.8 Intentionally Deleted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 26.9 Successors and Assi~ns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 26.10 Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
. Section 26.11 No R~resentations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 26.12 CotPorate Obli~ations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 26.13 Nonliability of Officials and Employees. ........................52
Section 26.14 Partnership Disclaimer. ...................................... 52
Section 26.15 Time Periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 26.16 No Third Party Ri~hts .......................................52
Section 26.17 No Conflict of Interest. ...................................... 53
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EXHIBITS
Exhibit A
LAND ............................................................... 55
Exhibit 2.1(d)
COMPLETION GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Exhibit 3.1(a)
PRELIMINARYPLANSANDSPECIFICATIONS .........................66
Exhibit 3.5(a)
DEVELOPMENT BUDGET ............................................ 68
Exhibit 3.8(b)
DEVELOPER'S FEE DISBURSEMENT ANALYSIS ....................... 69
Exhibit 3.8(d)
MILESTONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Exhiliit 5.3(a)
INSURANCE REQUIRED OF CONTRACTOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Exhibit 6.3(a)
lEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Exhibit 19.1(h)
LIST OF PROJECT AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
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HOTEL DEVELOPMENT AGREEMENT
THIS HOTEL DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the
Q kt day of Dc-roBE IL , 1997 (the "Commencement Date") by and between the MIAMI
BEACH REDEVELOPMENT AGENCY ("Owner") and RDP ROYAL PALM HOTEL LIMITED
PARlNERSHIP, a Florida limited partnership ("Developer").
RECITALS:
A. In February 1993, the City CenterfHistoric Convention Village Redevelopment and
Revitalization Area was officially established by the adoption of a Redevelopment Plan. The
Redevelopment Plan was the result of the combined efforts of the City of Miami Beach (the "City~'),
Owner, Metropolitan Dade County and the State of Florida. The Redevelopment Plan represents the
effort and commitment of Owner and the City to foster the development of convention quality hotels,
ancillary improvements and facilities, and necessary linkages to the Miami Beach Convention Center
(the "Convention Center"). Pursuant to the Redevelopment Plan, Owner has acquired the
properties commonly known as the Royal Palm Hotel which has a street address of 1535 Collins
Avenue, Miami Beach, Florida and the Shorecrest Hotel which has a street address of 1545 Collins
Avenue, Miami Beach, Florida, both of which Owner has agreed to make available for a convention
center hotel which will serve as a part of the Redevelopment Plan.
B. The City and Owner also have determined to make a substantial commitment to
provide the African-American community with an opportunity in the hospitality industry. In
conne~tion with that commitment, Owner has agreed to make available the Royal Palm Hotel and
the Shorecrest Hotel and additional financial incentives for an African-American owned hotel.
C. In furtherance of the Redevelopment Plan and the commitment to the African-
American community referred to in the preceding paragraph, the Agency published Request for
Proposals Number 45-9596 (the "RFP"), entitled "City CenterfHistoric Convention Village
Redevelopment and Revitalization Area African-American Hotel Development Opportunity", dated
December 27,1995 and amended on January 2, 1996, January 3, 1996 and March 5, 1996. The RFP
sought bids for the development and operation of a convention center hotel owned by African-
American Persons.
D. On June 5, 1996, after a public review process, Owner selected an Affiliate of
Developer from among the groups that submitted proposals pursuant to the RFP and directed
representatives of Owner to negotiate the terms under which Developer or its Affiliate would
develop, own and operate the convention center hotel referred to above (the "Hotel", as further
defined below) in accordance with the requirements of the RFP.
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E. Owner and Affiliates of Developer entered into a Letter of Intent (the "Letter of
Intent"), dated March 5, 1997, and approved by the City, which, among other things, provides for
the development, construction, furnishing and equipping of the Hotel.
F. Owner and Developer entered into that certain Agreement of Lease (the "Ground
Lease") between the Owner and the Developer and dated of even date herewith.
G. Owner and Developer desire to enter into a definitive agreement for the development,
construction, furnishing and equipping of the Hotel in accordance with this Agreement and the
standards set forth in the plans and specifications described in this Agreement.
TERMS OF AGREEMENT:
NOW, THEREFORE, it is hereby mutually covenanted and agreed by and between the
parties hereto that this Agreement is made upon the terms, covenants and conditions hereinafter set
forth.
ARTICLE 1.
DEFINITIONS
F or all purposes of this Agreement the terms defined in this Article 1 shall have the
following meanings and the other provisions of this Article 1 shall apply:
"Accounting Principles" shall have the meaning provided in the Ground Lease.
"Affiliate" or "Affiliates" means, with respect to any Person, any other Person that, directly
or indirectly, through one or more intermediaries, controls or is controlled by, or is under common
control with, such Person. For purposes hereof, the term "control" (including the terms "controlled
by" and "under common control with") shall mean the possession of a Controlling Interest.
Unless the context otherwise requires, any reference to "Affiliate" in this Agreement shall be
deemed to refer to an Affiliate of Developer.
"Agency" means the Miami Beach Redevelopment Agency.
"Architect" means Arquitectonica International Corp., a Florida corporation.
"Building Equipment" has the meaning provided in the Ground Lease.
"Business Day" or "business day" means a day other than Saturday, Sunday or a day on
which banking institutions in the State of Florida are authorized or obligated by law or executive
order to be closed.
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"City" means City of Miami Beach, a municipal corporation of the State of Florida.
"Commence Construction" or "Commencement of Construction" means the
commencement ofmajor work (such as pilings or foundations) for construction of the Improvements
in accordance with the Plans and Specifications to be performed in connection with Construction of
the Project. Promptly after Commencement of Construction, the Owner and Developer shall enter
into an agreement acknowledging the date of Commencement of Construction. Any and all
preliminary site work (including, without limitation, any environmental remediation and ancillary
demolition) shall not be deemed to be Commencement of Construction.
"Commencement Date" has the meaning provided in the preamble of this Agreement.
"Completion Deadline" means the date which is forty-two (42) months a:ft~r the
Construction Commencement Date, subject to extension due to Unavoidable Delays.
"Completion Guarantee" has the meaning provided in Section 2.1(d).
"Connection Fees" has the meaning provided in the Section 6.3(b).
"Consenting Party" has the meaning provided in Section 20.2(c).
"Construction"or "Construction of the Project" means the construction on the Land of
the Project.
. "Construction Agreement(s)" means, collectively, any general contractor's agreement,
architect's agreement, engineers' agreements, or any other agreements for the provision of labor,
materials or supplies entered into with respect to the Construction of the Project, as the same may
be amended or otherwise modified from time to time.
"Construction Commencement Date" has the meaning provided in Section 2.2.
"Construction Work" means any construction work performed under any provision of this
Agreement and/or the Construction Agreements with respect to the Construction of the Project.
"Contingency" means the amount set forth as hard and soft construction costs in the
Development Budget on the date hereof as a line item labeled "Contingency".
"Contractor" means any contractor, subcontractor, supplier, vendor or materialman
supplying services or goods in connection with the Construction of the Project.
"Controlling Interest" means the ownership of greater than fifty percent (50%) of the voting
ownership interests in a Persol1 or the ownership of greater than fifty percent (50%) of the votes
necessary to elect a majority of the Board of Directors or other governing body of such Person.
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"CPM" has the meaning provided in Section 4.2(b).
"CPM Schedule" has the meaning provided in Section 4.2(b).
"Default"means any condition or event, or failure of any condition or event to occur, which
constitutes, or would after the giving of notice and lapse of time (in accordance with the terms of this
Agreement) constitute, an Event of Default.
"Default Date" means the date which is ninety-six (96) months after the Commencement
Date.
"Default Notice" has the meaning provided in Section 19.1(b).
"Deficit" has the meaning provided in Section 3.8( d).
"Deficit Increase" has the meaning provided in Section 3.8( d).
"Detailed Plans" has the meaning provided in Section 4.2(a)(v)(2).
"Developer" means RDP Royal Palm Hotel Limited Partnership, a Florida limited
partnership, its successors and assigns.
"Developer's Fee" has the meaning provided in Section 3.8(a).
. "Development Budget" has the meaning provided in Section 3.5(a).
"Development Dispute" has the meaning provided in Section 3.6.
"Development Fee" has the meaning provided in Section 3.8(a).
"Event of Default" has the meaning provided in Section 19.1.
"Excess Withheld Amount" has the meaning provided in Section 3.8( d).
"Existing Hotels" has the meaning provided in Section 5.1.
"Fees" has the meaning provided in Section 6.3(a).
"FF &E" has the meaning provided in the Ground Lease.
"Final CO" has the meaning provided in the Ground Lease.
"Funded Equity" has the meaning provided in the Ground Lease.
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"Garage Easement Agreement" has the meaning provided in the Ground Lease.
"General Contractor" means the general contractor under that certain guaranteed maximum
price contract for the Construction of the Project entered into by Developer and such general
contractor.
"Governmental Authority or Authorities" means the United States of America, the State
of Florida, the City, Metropolitan Dade County, the Agency (in its governmental as opposed to
proprietary capacity) and any agency, department, commission, board, bureau, instrumentality or
political subdivision (including any county or district) of any of the foregoing, now existing or
hereafter created, having jurisdiction over Developer or any owner, tenant or other occupant of, or
over or under the Project Site or any portion thereof or any street, road, avenue or sidewalk
comprising a part of, or in front of, the Project Site, or any vault in or under the .Project Site,. or
airspace over the Project Site.
"Ground Lease" means, that certain Agreement of Lease between Owner and Developer
dated as of the date hereof, pursuant to which Developer (as tenant) has agreed to lease the Land.
"Guarantor" means R. Donahue Peebles, individually.
"Hearing" has the meaning provided in Section 22.1(b).
"Hotel"means a convention center hotel (including the Building Equipment) described in
the Plans and Specifications and other Improvements to be constructed on the Land in accordance
with tp.e terms of this Agreement and the terms of the Ground Lease (together with any and all
permitted improvements thereto and replacements thereof).
"Hotel Construction Costs" means all hard and soft construction costs incurred in
connection with the development and Construction of the Project. The projected Hotel Construction
Costs are as set forth in the Development Budget, attached hereto and incorporated by reference
herein as Exhibit 3.5(a).
"Hotel Development Agreement" (or this "Agreement") means collectively, this Hotel
Development Agreement and all exhibits and attachments hereto, as any of the same may hereafter
be supplemented, amended, restated, severed, consolidated, extended, revised and otherwise
modified, from time to time, either in accordance with the terms of this Agreement or by mutual
agreement of the parties.
"Hotel Opening Date" has the meaning provided in the Ground Lease.
"Improvement(s)" means any building (including footings and foundations), Building
Equipment, FF &E and other illfprovements and appurtenances of every kind and description now
existing or hereafter erected, constructed, or placed upon the Land (whether temporary or
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permanent), and any and all alterations and replacements thereof, additions thereto and substitutions
therefor.
"Institutional Lender" has the meaning provided in the Ground Lease.
"Land" means the real property described in Exhibit A attached hereto and incorporated by
reference herein.
"Late Charge Rate" has the meaning provided in the Ground Lease.
"Letter of Intent" has the meaning provided in Recital E hereof.
"Loan Documents" means, collectively, any loan agreement, promissory note,!llortgage,
guaranty or other document evidencing or securing a loan secured by, among other collateral,
Developer's interest in the Ground Lease or the Hotel.
"Mortgage" has the meaning provided in Section 11.2(a) of the Ground Lease.
"Mortgagee" means the holder of a Mortgage.
"Notice" has the meaning provided in Section 20.1.
"Operating Equipment" has the meaning provided in the Ground Lease.
. "Owner" means the Agency (or the City if the City shall succeed to the interest of the
Agency hereunder), acting in its proprietary capacity, and any assignee or transferee of the Agency
(or the City if the City shall succeed to the interest of the Agency hereunder) of the entire Owner's
Interest in the Premises, from and after the date of the assignment or transfer pursuant to which the
entire Owner's Interest in the Premises was assigned or transferred to such assignee or transferee.
"Owner's Interest in the Premises" has the meaning provided in the Ground Lease.
"Owner's Consultant" means such Person as Owner may designate in writing to Developer
from time to time.
"Owner's Contribution" has the meaning provided in Section 6.1.
"Payment and Performance Bond" has the meaning provided in Section 2.1(e).
"Permits and Approvals" shall mean any and all permits and approvals required to be
issued by Governmental Authorities in connection with the Construction of the Project, including,
without limitation, the City of Miami Beach building permits, the approvals of the City of Miami
Beach Design Review Board, the Dade County Department of Environmental Resources
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Management permits, the Florida Department of Environmental Protection coastal construction
permit, and any utility access agreements with all applicable utility companies.
"Person" means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other entity; any
Federal, state, county or municipal government or any bureau, department, political subdivision or
agency thereof; and any fiduciary acting in such capacity on behalf of any of the foregoing.
"Plans and Specifications" means the final plans and specifications for the Project, the
finish schedule, the hotel program and the differentiation schedule, each as established in accordance
with Article 3, as the same may be modified from time to time in accordance with the provisions
of Section 3.2 hereof.
"Preliminary Plans and Specifications" means the preliminary plans and specifications for .
the Project, the preliminary finish schedule, the preliminary hotel program and the preliminary
differentiation schedule described on Exhibit 3.1(a) attached hereto and incorporated by reference
herein, as the same may be modified from time to time in accordance with the provisions of Section
3.1(b) hereof.
"Project" has the same meaning as "Hotel."
"Project Agreements" means all of the agreements between Developer and Owner and/or
the City listed on Exhibit 19(h) attached hereto and incorporated by reference herein.
. "Project Management Fee" has the meaning provided in Section 3.8(a).
"Project Site" means the Land and all portions of the Improvements.
"Proposal"means the development proposal dated April I, 1996, submitted by Developer
in response to the RFP.
"RFP" has the meaning provided in Recital C hereof.
"RP Improvements" has the meaning provided in Section 3.1(d).
"Recognized Mortgage" has the meaning provided in Section 1l.2(b) of the Ground Lease.
"Recognized Mortgagee" means the holder of a Recognized Mortgage; provided, however,
that, except to the extent permitted by Section 1l.2(b) of the Ground Lease, a Recognized
Mortgagee may not be an Affiliate of Developer (except if Developer is an Affiliate of a Recognized
Mortgagee that has caused the Ground Lease to be assigned to such Affiliate in lieu of foreclosure
of the Recognized Mortgage o(such Recognized Mortgagee).
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"Redevelopment Plan" means that certain plan addressing the rehabilitation, conservation
and redevelopment of that certain City CenterfHistoric Convention Village Redevelopment and
Revitalization Area described therein, of which the Land forms a part, as the same was adopted in
February of 1993 by the Owner and the City and approved by the Board of County Commissioners
of Dade County, Florida in March, 1993, and expiring on March 31, 2023. As used herein, except
in the Recitals, references to the "Redevelopment Plan" shall not include any extensions or
amendments thereof.
"Required Contingency" has the meaning provided in Section 3.8( d).
"Required Contingency Percentage" has the meaning provided in Exhibit 3.8( d).
"Requirements" has the meaning provided in Section B.l(b).
"Sale of the Hotel" has the meaning provided in the Ground Lease.
"Shorecrest Improvements" has the meaning provided in Section 3.1(d).
"Substantial Completion" or "Substantially Complete" or "Substantially Completed"
means, with respect to the Project, that (1) it shall have been substantially completed in accordance
with the Plans and Specifications, (2) the certificate of the Architect described in Section 2.3(b )(i)
hereof shall have been obtained, and (3) all of the Improvements therein shall have been issued
temporary certificates of occupancy.
"Term" means the period commencing on the Commencement Date and, unless sooner
terminated as provided hereunder, expiring on the issuance of a Final CO and the completion of all
remaining punch list items with respect to completion of the Hotel in accordance with the terms of
this Agreement, subject, however, to survival of any provisions of this Agreement that are expressly
stated herein to survive such expiration or termination (as the case may be).
"Unavoidable Delays" means delays due to strikes, slowdowns, lockouts, acts of God,
inability to obtain labor or materials, war, enemy action, civil commotion, fire, casualty, catastrophic
weather conditions, a court order which causes a delay (unless resulting from disputes between or
among the party alleging an Unavoidable Delay, present or former employees, officers, members,
partners or shareholders of such alleging party or Affiliates (or present or former employees, officers,
partners, members or shareholders of such Affiliates) of such alleging party), the application of any
Requirement, or another cause beyond such party's control or which, if susceptible to control by
such party, shall be beyond the reasonable control of such party. Such party shall use reasonable
good faith efforts to notify the other party not later than twenty (20) days after such party knows of
the occurrence of an Unavoidable Delay; provided, however, that either party's failure to notify the
other of the occurrence of an event constituting an Unavoidable Delay shall not alter, detract from
or negate its character as an Unayoidable Delay or otherwise result in the loss of any benefit or right
granted to the delayed party under this Agreement. In no event shall (i) any party's financial
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015
condition or inability to fund or obtain funding or financing constitute an "Unavoidable Delay"
(except for an Institutional Lender's inability to fund, which inability is not caused by Developer)
with respect to such party and (ii) any delay arising from a party's (or its Affiliate's) default under
this Agreement or any of the Project Agreements constitute an "Unavoidable Delay" with respect
to such party's obligations hereunder. The times for performance set forth in this Agreement (other
than for monetary obligations of a party and with respect to completion of the Project by the Default
Date) shall be extended to the extent performance is delayed by Unavoidable Delay, except as
otherwise expressly set forth in this Agreement.
"Withheld Amount" has the meaning provided in Section 3.8( d).
ARTICLE 2.
CONSTRUCTION
Section 2.1
Conditions Precedent to Developer's Commencement
of Construction of the Proiect.
(a) Developer shall (subject to Unavoidable Delays) obtain all Permits and
Approvals by not more than one (1) year from the Commencement Date. Subject to Section 2.1(c),
Developer shall not Commence Construction of the Project unless and until (i) Developer shall have
obtained and delivered to the Owner's Consultant copies of all Permits and Approvals required to
Commence Construction and (ii) Developer shall have delivered to the Owner original certificates
of the policies of insurance required to be carried pursuant to the provisions of Article 7 of this
Agree!TIent.
(b) The Owner (solely in its capacity as the owner of the Project Site and not in
its governmental capacity) shall reasonably cooperate with Developer in obtaining the Permits and
Approvals required by Section 2.1(a) and any necessary utility access agreements, shall sign any
application reasonably made by Developer which is required in order to obtain such Permits and
Approvals and utility access agreements and shall provide Developer with any information and/or
documentation not otherwise reasonably available to Developer (if available to the Owner) which
is necessary to procure such Permits and Approvals and utility access agreements. Any such
accommodation by Owner shall be without prejudice to, and shall not constitute a waiver of,
Owner's rights to exercise its discretion in connection with its governmental functions. Developer
shall reimburse the Owner, within ten (10) days after the Owner's demand, for any reasonable
out-of-pocket cost or expense payable to the Owner's technical consultants (other than the Owner's
Consultant and Owner's employees), such as architects and engineers, so incurred by the Owner in
connection with Owner's assistance in obtaining the Permits and Approvals and utility access
agreements required by Section 2.1(a).
(c) Develop~r shall not Commence Construction of the Project, or any portion
thereof, unless and until the Owner shall have approved the Plans and Specifications (to the extent
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required herein). However, if Developer chooses to perform any Construction of the Project on a
"fast-track" basis, Developer may request the necessary approval of the Owner in stages and
perform that portion of the Construction Work which has been approved (provided Developer shall
comply with all other requirements with respect to such portion of the Construction Work), even if
progress plans and specifications for other portions of the Construction Work have not yet been
prepared.
(d) Prior to Commencement of Construction of the Project, Developer shall
furnish to Owner a completion guarantee (the "Completion Guarantee"), in the form attached
hereto and incorporated by reference herein as Exhibit 2.1(d), from Guarantor, pursuant to which,
among other matters, Guarantor guarantees timely completion of the Project.
(e) Payment and Performance Bond. Prior to Commencement of Constnlcti~n
of the Project, Developer shall cause the General Contractor to furnish to Owner a payment and
performance bond (the "Payment and Performance Bond"), in a form reasonably acceptable to
Owner, issued by a surety listed in the most recent United States Department of Treasury listing of
approved sureties, guaranteeing the performance of the General Contractor under that certain
guaranteed maximum price contract for the Construction of the Project. Owner may accept, in its
sole and absolute discretion, for any reason and for no reason whatsoever, a completion guarantee
from the General Contractor in substitution for such Payment and Performance Bond. Owner shall
be named as a dual obligee under the Payment and Performance Bond; provided, however, Owner's
rights under the Payment and Performance Bond shall be subordinate to the Recognized Mortgagee's
(as defined in the Lease) rights under the Payment and Performance Bond and Owner shall agree in
writing with such Recognized Mortgagee that Owner shall only seek to enforce its rights under the
Paym~nt and Performance Bond if the Ground Lease is terminated and such Recognized Mortgagee
fails to exercise its rights under Section 11.6 of the Ground Lease for the execution of New Tenant's
Documents (as defined in the Ground Lease).
Section 2.2 Commencement and Completion of Construction of the Project.
Developer shall, subject to Unavoidable Delays, at its expense (a) Commence Construction
on or before sixty (60) days after all Permits and Approvals necessary for the Commencement of
Construction are issued (the "Construction Commencement Date") and (b) thereafter continue to
prosecute Construction of the Project with diligence and continuity to completion. If, after
Developer has Commenced Construction, Developer fails to diligently prosecute Construction of
the Project (subject to Unavoidable Delays), and such failure continues (subject to Unavoidable
Delays) for thirty consecutive (30) days after Developer's receipt of notice of such failure, the Owner
shall, in addition to all of its other remedies under this Agreement and the Ground Lease, have the
right to seek such equitable relief (either mandatory or injunctive in nature) as may be necessary to
cause diligent and continuous prosecution of Construction of the Project (subject to Unavoidable
Delays) by Developer, it being understood that Construction of the Project is a material inducement
to the Owner to enter into t~e Ground Lease and monetary damages shall be inadequate to
compensate the Owner for harm resulting from such failure. Notwithstanding anything to the
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contrary contained herein, if Developer fails to Substantially Complete Construction of the Project
by the Default Date, then the same shall constitute an Event of Default under this Agreement and
under the Ground Lease and the Owner shall be entitled to all of its remedies hereunder and
thereunder, including, without limitation, the termination of this Agreement and the Ground Lease.
Notwithstanding anything to the contrary contained in this Agreement, the Default Date shall not
be extended by reason of Unavoidable Delay.
Section 2.3 Completion of Construction of the PrQject.
(a) Substantial Completion of the Project shall be accomplished in a diligent
manner, and in any event by the Completion Deadline, and final completion of the Construction of
the Project, including but not limited to completion of all punch-list items, shall be accomplished
in a diligent manner thereafter, in each case in a good and workerlike manner.. in sub~tantial
accordance with the Plans and Specifications, in accordance with all applicable Requirements-and, .
except as provided in Article 6, at Developer's sole cost and expense.
(b) Upon Substantial Completion of Construction of the Project, Developer shall
furnish the Owner with the following:
(i) a certification of the Architect (certified to the Owner on the standard
AlA certification form) that it has examined the Plans and Specifications and that,
in its professional judgment, after diligent inquiry, Construction of the Project has
been Substantially Completed in accordance with the Plans and Specifications
applicable thereto and, as constructed, the Improvements comply with all applicable
Requirements;
(ii) if Requirements require the same, a copy or copies of the temporary
certificates of occupancy for the Hotel (or portion thereof, as applicable) issued by
the City of Miami Beach Building Department;
(iii) lien waivers in form and substance reasonably satisfactory to Owner
from each contractor, subcontractor, supplier or materialman retained by or on behalf
of Developer in connection with the Construction of the Project, evidencing that such
Persons have been paid in full for all work performed or materials supplied in
connection with the Construction of the Project;
(iv) a complete set of "as built" plans and a survey showing the
Improvement(s) (excluding personalty) for which the Construction of the Project has
been completed. The Owner shall have an unrestricted license to use such "as built"
plans and survey for any purpose related to the Project Site without paying any
additional cost or compensation therefor, subject to copyright and similar rights of
the Architect to p'rohibit use of designs for purposes unrelated to the Project Site, as
such rights exist in law or may appear in the Architect's contract, and subject to
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applicable public records laws. The foregoing requirement with respect to "as built"
plans shall be satisfied by Developer furnishing to the Owner, at Developer's
expense, a complete set of Plans and Specifications, with all addenda thereto and
change orders in respect thereof, marked to show all changes, additions, deletions
and selections made during the course of the Construction of the Project;
(v) a Contractor's Final Affidavit in form and substance reasonably
satisfactory to Owner executed by the General Contractor (i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on behalf of
Developer in connection with the Construction of the Project have been paid in full
for all work performed or materials supplied in connection with the Construction of
the Project; and (ii) otherwise complying with all of the requirements under the
Florida Construction Lien Law, Chapter 713, Florida Statutes, as amend~d; and,
(vi) evidence that all FF&E necessary to use and operate the Hotel in
accordance with the Ground Lease, Management Agreement, Plans and
Specifications and the Development Budget has been installed in the Hotel.
ARTICLE 3.
PLANS AND SPECIFICATIONS
Section 3.1
Approval and Modification of Preliminary Plans and Specifications.
(a) Developer has previously submitted to the Owner, and the Owner has
approved, the Preliminary Plans and Specifications described on Exhibit 3.1(a) attached hereto and
incorporated by reference herein.
(b) If Developer desires to modify the Preliminary Plans and Specifications (as
such may have been previously approved pursuant to the terms of this Section 3.1(b)), Developer
shall submit any such proposed modified Preliminary Plans and Specifications to Owner. Such
modified Preliminary Plans and Specifications shall clearly indicate, by "ballooning", highlighting,
blacklining or describing in writing in sufficient detail in a memorandum accompanying such
modified Preliminary Plans and Specifications, all such proposed modifications to the Preliminary
Plans and Specifications. Within ten (10) business days of its receipt of such proposed modified
Preliminary Plans and Specifications, the Owner shall notify Developer, in writing, describing, with
specificity, the basis for such disapproval of any material modifications or material inconsistencies
of which the Owner disapproves between the Preliminary Plans and Specifications as modified and
the Preliminary Plans and Specifications previously approved by the Owner, it being agreed
however, that the Owner's failure to so notify Developer of its disapproval during such time period
shall be deemed to constitute the Owner's conclusive approval of such modifications or
inconsistencies; provided, how€?ver, that if Owner shall notify Developer within ten (10) business
days following its receipt that any of the proposed modifications to the Preliminary Plans and
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Specifications are not indicated as required by this Section 3.1(b) or that the complexity of the
proposed modifications necessitates an extension of such time period to complete Owner's review,
such period shall be extended to the date which is thirty (30) days after Owner's receipt of the
proposed modifications; provided, further, however, that Owner shall not be responsible for, and
shall not be deemed to have approved, any such proposed modification that is not indicated as
required by this Section 3.1(b). Notwithstanding anything to the contrary contained herein, Owner
shall not object to any modifications to the Preliminary Plans and Specifications which are
necessitated by Requirements or as a result of a drafting, coordination, mechanical or technical error
in the Preliminary Plans and Specifications.
(c) If Owner disapproves any material modifications to or material
inconsistencies in the Preliminary Plans and Specifications pursuant to Section 3.1(b), above, then
Developer shall, at its election, either (x) submit Owner's disapproval to expedited arbitnltipn .
pursuant to Section 3.5 and Section 22.1 as to the (i) materiality of the inconsistency or modification
and/or (ii) the reasonableness of the disapproval, or (y) submit a revised modification to the
Preliminary Plans and Specifications to meet Owner's objections, which revised modification shall
be submitted and reviewed as provided in Section 3.1(b).
(d) Description of the Hotel. The Hotel will consist of the following: (i)
restored portions of the Royal Palm Hotel, and a new tower to be developed to the east of the Royal
Palm Hotel, as per the plans and specifications approved by the joint Design Review and Historic
Preservation Boards on December 3, 1996, as said plans and specifications may be amended and
approved, together comprising approximately two hundred fifty-seven (257) hotel rooms (hereinafter
collectively referred to as the "RP Improvements") and (ii) restored portions of the Shorecrest
Improvements which has a street address of 1535 Collins Avenue, Miami Beach, Florida and a new
tower to be developed to the east of the Shorecrest Improvements, as per the plans and specifications
approved by the joint Design Review and Historic Preservation Boards on December 3, 1996, as said
plans and specifications may be amended and approved, together comprising approximately one
hundred sixty-five (165) hotel suites (hereinafter collectively referred to as the "Shorecrest
Improvements"). The Shorecrest Improvements will be operated in conjunction with the RP
Improvements as the Hotel. The Hotel will be a first class, upscale property with suitable
convention, conference and meeting space and appropriate amenities meeting the standards of the
Crowne Plaza Hotel chain and those standards set forth in the Ground Lease.
Section 3.2 Approval and Modification of Plans and Specifications.
(a) Prior to Commencement of Construction of the Project, Developer shall
prepare and submit to the Owner the Plans and Specifications, which Plans and Specifications shall
be used to obtain the required building permits. If such submitted Plans and Specifications are
materially inconsistent with, or contain material modifications to, the Preliminary Plans and
Specifications (as such may have been previously approved pursuant to the terms of Section 3.1),
then such Plans and Specificatiop.s shall clearly indicate, by "ballooning", highlighting, blacklining
or describing in writing in sufficient detail in a memorandum accompanying such Plans and
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Specifications, all such modifications to the Preliminary Plans and Specifications. Within ten (10)
business days of its receipt of such Plans and Specifications, Owner shall notify Developer, in
writing, describing, with specificity, the basis for such disapproval of any material inconsistencies
or material modifications of which the Owner disapproves between the proposed Plans and
Specifications and the Preliminary Plans and Specifications, it being agreed however, that the
Owner's failure to so notify Developer of its disapproval within such time period shall be deemed
to constitute the Owner's conclusive approval of such Plans and Specifications; provided, however,
that if Owner shall notify Developer within ten (10) business days following its receipt that any of
such inconsistencies or modifications to the Preliminary Plans and Specifications are not indicated
as required by this Section 3.2(a) or that the complexity of such changes from the Preliminary Plans
and Specifications necessitates an extension of such time period to complete Owner's review, such
period shall be extended to the date which is thirty (30) days after Owner's receipt of the proposed
inconsistencies or modifications; provided, further, however, that Owner shall not be responsiblefgr,
and shall not be deemed to have approved, any such material inconsistency or modification that is
not indicated as required by this Section 3.2(a), except that when Developer advises Owner in
writing, and Owner agrees with Developer in writing, that the Plans and Specifications, as approved
as herein provided above, are complete and sufficient and suitable to construct, furnish and equip
the entire Hotel in accordance with the provisions of this Agreement, such written agreement shall
be deemed to constitute the Owner's conclusive approval of all modifications and inconsistencies,
whether or not the modifications are highlighted, in such Plans and Specifications; provided,
however, that the foregoing exception relating to Owner's conclusive approval does not apply to
those changes which, in Owner's opinion, (i) diminish any of the levels of quality of the Hotel, (ii)
materially diminish, individually or in the aggregate, any of the physical components of the Hotel,
or (iii) have a material adverse effect (a) on the ability of Developer to complete Construction of the
Projec,t or (b) on the financial feasibility of the Hotel. Notwithstanding anything to the contrary
contained herein, Owner shall not object to any inconsistencies with or modifications to the
Preliminary Plans and Specifications which are necessitated by Requirements or as a result of a
drafting, coordination, mechanical or technical error in the Preliminary Plans and Specifications.
(b) If Developer desires to modify previously approved Plans and Specifications
(as such may have been modified by approved Plans and Specifications), Developer shall submit any
such modified Plans and Specifications to Owner for Owner's approval. Such modified Plans and
Specifications shall clearly indicate, by "ballooning", highlighting, blacklining or describing in
writing in sufficient detail in a memorandum accompanying such modified Plans and Specifications,
all such proposed modifications to the Plans and Specifications. Within ten (10) business days of
its receipt of the proposed modifications, Owner shall notify Developer in writing, with specificity
of any material inconsistencies or material modifications of which the Owner disapproves between
the Plans and Specifications as modified and the Plans and Specifications previously approved by
Owner, it being agreed however, that the Owner's failure to so notify Developer of its disapproval
during such time period shall be deemed to constitute the Owner's conclusive approval of such Plans
and Specifications; provided, however, that if Owner shall notify Developer within ten (10) business
days following its receipt that a1!y of the proposed modifications to the Plans and Specifications are
not indicated as required by this Section 3.2(b) or that the complexity of the proposed modifications
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021
necessitates an extension of such time period to complete Owner's review, such period shall be
extended to the date which is thirty (30) days after Owner's receipt of the proposed modifications;
provided, further, however, that Owner shall not be responsible for, and shall not be deemed to have
approved, any such proposed modification that is not indicated as required by this Section 3.2(b).
Notwithstanding anything to the contrary contained herein, Owner shall not object to any
modifications to the Plans and Specifications which are necessitated by Requirements or as a result
of a drafting, coordination, mechanical or technical error in the Plans and Specifications.
(c) If Owner disapproves any material inconsistencies or material modification
in the Plans and Specifications from the Preliminary Plans and Specifications pursuant to Section
3.2(a) above, or Owner disapproves any of the material modifications to or material inconsistencies
in the Plans and Specifications pursuant to Section 3.2(b) above, then Developer shall, at its election
either: (x) submit Owner's disapproval to expedited arbitration pursuant to Section 3.5 and Secti~n
22.1 as to the (i) materiality of the inconsistency or modification and/or (ii) the reasonableness of
the disapproval, (y) within thirty (30) days after receiving the Owner's disapproval notice, submit
revised Plans and Specifications or a revised modification to the Plans and Specifications to meet
Owner's objections, which revised Plans and Specifications or revised modification shall be
reviewed as provided in Section 3.2 (a) or (b), as applicable, or (z) construct the Project in
accordance with the modified Plans and Specifications.
Section 3.3 Ri~ht of Developer to Proceed with Disllp'proved Chan~es.
Any disapproval pursuant to Section 3.1(b), Section 3.2(a) or Section 3.2(b) shall be subject
to arbitration as provided in Section 3.7 and Section 22.1 below. If the arbitrator upholds Owner's
objection to any inconsistency or modification submitted to arbitration pursuant to Sections 3.1(c)
or 3.2(c) or Owner shall disapprove any proposed modification to the Plans and Specifications
pursuant to Section 3.2 above, and such disapproval or conditional approval shall not be submitted
to arbitration by Developer or shall have been upheld by the arbitrator, then Developer may, if the
inconsistency or modification will (i) improve the physical components or levels of quality of the
Hotel, and (ii) not have a material adverse effect (y) on the ability of Developer to complete
Construction of the Project, including but not limited to completion on a timely basis, or (z) on the
financial feasibility of the Hotel, nevertheless Construct the Project in accordance with the Plans and
Specifications disapproved or conditionally approved by Owner; provided, however, that the
inconsistency or modification complies with all applicable Requirements.
Section 3.4 Compliance with Requirements: Construction Standards.
(a) Notwithstanding anything to the contrary contained herein, the Plans and
Specifications shall comply with all applicable Requirements. It is Developer's responsibility to
assure such compliance. The Owner's approval in accordance with this Article of any Plans and
Specifications shall be deemed to be a determination by the Owner that the Plans and Specifications
so approved are in substantial.conformity with the Proposal, but shall not be, and shall not be
construed as being, or relied upon as, a determination that such Plans and Specifications comply with
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'" .
other applicable Requirements, including, without limitation, any Requirements providing for the
review and approval of the Plans and Specifications by any Governmental Authority (in its
governmental capacity as opposed to its proprietary capacity).
(b) Construction of the Project shall be carried out pursuant to Plans and
Specifications prepared by licensed architects and engineers, with controlled inspections conducted
by a licensed architect or professional engineer as required by applicable Requirements.
Section 3.5 Bud~et and Chan~e Orders.
(a) Developer has previously submitted to the Owner, and the Owner has
approved, a pre-construction budget and development budget for the Project (collectively, the
"Development Budget"), copies of which are attached hereto and incorporated by reference herein
as Exhibit 3.5(a). Information copies of any material modifications to the Developme!lt Budget
shall be promptly delivered to the Owner. Any change orders which increase the hard construction
costs (including FF&E) of the Project above the amount listed for such costs in the Development
Budget will be deducted from the Contingency.
(b) Except as provided in the last sentence in this Section 3.5(b), notwithstanding
anything to the contrary contained in this Agreement, after fifty percent (50%) of the Contingency
has been exhausted, all proposed change orders which would increase any line item for hard
construction costs (including FF&E) in the Development Budget by more than Twenty-Five
Thousand Dollars ($25,000), the cost of which would be payable out of the Contingency, shall be
subject to Owner's approval, which approval shall be deemed granted if Owner shall not object to
such proposed change order within ten (10) business days after Owner's receipt of Developer's
reques~ therefor; provided, however, such approval is not required if the modification is necessary:
(1) to meet Requirements; (2) as a result of a drafting, coordination, mechanical or technical error
in the Plans and Specifications; or (3) as a result of price increases in materials, Building Equipment,
Operating Equipment, FF&E, labor and other hard construction costs. In addition, any increase in
soft costs shall be reflected in the periodic updates to the Development Budget, showing variances,
as provided in Section 4.2(a)(v)(7). However, any increase in any soft costs category in the
Development Budget may in the sole discretion of Developer be offset by a decrease in any other
soft cost category, but may not be offset by a change order decreasing any hard cost category or
FF&E, without the consent of Owner. Any change order in excess of Twenty-Five Thousand Dollars
($25,000) that (i) diminishes any of the levels of quality of the Hotel, (ii) materially diminishes,
individually or in the aggregate, any of the physical components of the Hotel, or (iii) has a material
adverse effect (y) on the ability of Developer to complete Construction of the Project or (z) on the
financial feasibility of the Hotel, shall require Owner's approval.
Section 3.6 Desi2n and Decor.
Notwithstanding anything to the contrary contained in this Agreement (other than Section
3.5(b ) above), the Owner shall npt have any approval rights with respect to matters of interior design
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023
and decor of the Hotel except to the extent the same are reflected in the Preliminary Plans and
Specifications.
Section 3.7 Development Dispute.
Any dispute or disagreement between Owner and Developer arising prior to the Hotel
Opening Date with respect to the following matters (a "Development Dispute") shall be finally
resolved in accordance with the provisions of Section 22.1:
(a) Any dispute as to whether Developer's modifications to the Preliminary Plans
and Specifications or the Plans or Specifications pursuant to Section 3.1(b) or 3.2(a) or (b),
respectively, are material and/or materially inconsistent and are therefore subject to Owner's
approval;
(b) Any contention by Developer that Owner has unreasonably failed to approve
or give its consent to any modifications to the Preliminary Plans or Specifications pursuant to
Section 3.1(b), or the Plans and Specifications pursuant to Section 3.2(a) or (b);
(c) Any contention by Developer that Owner has unreasonably failed to approve
or consent to a change order as to which Owner has approval rights pursuant to Section 3.4(b); and
(d) Any contention by Owner that Developer has failed to obtain consent to a
change order as to which Owner has approval rights pursuant to Section 3.5(b).
Section 3.8 Developer's Fee and Expenses.
(a) Definitions.
(i)
Project Management Fee.
"Developer's Fee" means, collectively, the Development Fee and the
(ii) "Development Fee" means the development fee to be paid to
Developer in the amount of three (3) percent of the total project costs as stated in the Development
Budget.
(iii) "Project Management Fee" means the project management fee to be
paid to the Developer as stated in the Development Budget.
(b) Payment of Developer's Fee. The Developer's Fee shall be paid to the
Developer in thirty-six (36) equal monthly installments accruing as of July 1, 1996 with the first
payment being made on the later to occur of (i) the Commencement Date or (ii) the closing of
Developer's construction loan from an Institutional Lender. An example of the calculation and
timing of the payout of the Developer's Fee, assuming Withheld Amounts as stated in such exhibit,
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024
is shown on Exhibit 3.8(b) attached hereto and incorporated by reference herein. Notwithstanding
the foregoing, if milestone 2 as described on Exhibit 3.8( d) is not reached within ninety days
following the Commencement of Construction, no further distributions of the Developer's Fee will
be made until that milestone is reached, at which time distributions of the Developer's Fee which
would have been made but for this sentence will be made. Notwithstanding anything to the contrary
in this Agreement, the amount of the first payment of the Developer's Fee shall not exceed the
aggregate amount of sixteen (16) monthly installments of the Developer's Fee.
(c) Completion of the Construction of the Proiect Prior to June 30. 1999. If all
the Construction Work is completed prior to June 30, 1999, the amount of the Developer's Fee, if
any, that is undisbursed as of the date of such completion shall be paid to Developer in one lump
sum on the date of such completion.
(d) Partial Withholdin~ of the Developer's Fee. In the event that, prior to the
Commencement of Construction, the sources of funds as reflected on the Sources and Uses
Statement (which is Exhibit 10.1(c)(i)(I) in the Ground Lease) are less than the uses of funds
reflected thereon based upon the projection of the Contingency by Owner's Consultant (the
"Deficit"), then, in that event, a portion of the Developer's Fee equal to the Deficit shall be withheld
(the "Withheld Amount") and the remainder, ifany, of the Developer's Fee shall be paid pursuant
to Section 3.8(b). The Withheld Amount shall be withheld equally from the Development Fee and
the Project Management Fee. As indicated on Exhibit 3.8(d) attached hereto and incorporated
herein, the amount of Contingency required to be available and undisbursed (the "Required
Contingency") at various milestones is equal to the initial Contingency times the Required
Contingency Percent as defined in Exhibit 3.8(d). To the extent that the undisbursed Withheld
Amount exceeds the Required Contingency at any milestone (the "Excess Withheld Amount"), the
Excess Withheld Amount will be released for payment at that milestone date. If, in the reasonable
opinion of Owner's Consultant, the amount of the Deficit increases (the "Deficit Increase") any time
after Commencement of Construction, Developer shall increase, upon demand by Owner, the amount
of Developer's equity funding of the Construction of the Project by the amount of the Deficit
Increase.
ARTICLE 4.
OWNER PARTICIPATION
Section 4.1
Owner's Ri~ht to Use Field Personnel.
The Owner reserves the right, at its sole cost and expense, to maintain one on-site
representative (from Owner's Consultant, the Owner or another entity designated by the Owner) at
the Project Site to conduct inspections of the Project Site (provided, however, that the Owner shall
be entitled to maintain additional on-site representatives from time to time to the extent reasonably
necessary to perform such inspe~tions), and Developer agrees to provide safe access to the Project
Site, including, without limitation, access to inspect the Construction Work, including, without
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limitation, the preparation work and work in progress wherever located. No such inspection by the
Owner's on-site representatives shall impose upon the Owner responsibility or liability for any
failure by Developer to observe any Requirements or safety practices in connection with such
Construction Work, or constitute an acceptance of any work which does not comply with the
provisions of this Agreement, and no such inspection shall constitute an assumption by Owner of
any responsibility or liability for the performance of Developer's obligations hereunder, nor any
liability arising from the improper performance thereof. The Owner's on-site representatives shall
not interfere with any Construction Work being performed at the Project Site and shall comply with
all safety standards and other job-site rules and regulations of Developer. The Owner's on-site
representative is an inspector only. The on-site representative shall make only such communications
with Developer's construction manager(s), the General Contractor, its subcontractors, or any other
Person involved in the Construction of the Project, as are reasonably necessary to enable such on-site
representative to conduct its investigations, and in no event shall the on-site repr.esen~tivegi.ve .
directions to such Persons. Developer shall provide a reasonable work area for Owner's on-site
representative as is customarily provided at similar construction sites. All expenses incurred by
Owner's on-site representative shall be paid by Owner.
Section 4.2 Owner's Ri~ht to Notice. Access and Review.
(a) Developer acknowledges that the Owner has appointed the Owner's
Consultant as the Owner's consultant in connection with the Construction of the Project in
accordance with the terms of this Agreement. In connection therewith, Developer agrees to
cooperate fully with the Owner's Consultant. In furtherance thereof, Developer agrees that the
Owner's Consultant, and its authorized representatives, shall have such rights of notice, access and
review with respect to the Project and the Construction Agreements as is reasonably necessary to
achieve the foregoing (including, but not limited to verifying on Owner's behalf that the
Construction of the Project is being conducted in accordance with the terms hereof), including,
without limitation, the following:
(i) the opportunity for attendance by the Owner's Consultant at regularly
scheduled Construction Work meetings (which shall be scheduled not less frequently than twice each
month) and at any special meetings which Developer deems necessary in its reasonable discretion
as to change orders, delays and other material issues concerning the Project;
(ii) the furnishing to the Owner's Consultant of an information copy of
all bid packages;
(iii) the inspection by the Owner's Consultant of all Construction Work
(in accordance with the provisions of Section 4.1);
(iv) the opportunity for attendance by the Owner's Consultant at the
interior design presentations giyen to Developer (or an equivalent presentation); and
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(v) the delivery by Developer to the Owner's Consultant of two (2) copies
of:
(1) all agreements with contractors, subcontractors, suppliers,
vendors and other Persons supplying materials or services in connection with the Construction of
the Project in excess of Two Hundred Fifty Thousand Dollars ($250,000), which shall be aggregated
with respect to each Person supplying materials or services;
(2) the Plans and Specifications (and modifications thereto, with
such modifications being clearly indicated, by "ballooning", highlighting, or blacklining on the Plans
and Specifications or describing in writing in sufficient detail in a memorandum accompanying such
modified Plans and Specifications), working and other drawings, renderings, blueprints,
specifications, layouts and change orders (collectively, the "Detailed Plans");
(3) all insurance certificates required by Article 7 of this
Agreement (including those of Developer and all contractors and subcontractors);
(4) all contractors' and subcontractors' requisitions for payment
and the General Contractor's or construction manager's schedule of values;
(5) all drawdowns of equity and loan proceeds under the Loan
Documents;
(6) a monthly construction cost-to-date report reasonably
acceptable to Owner;
(7) all periodic (but not less than monthly) updates to the
Development Budget, which updates shall show all variances; and
(8) all interior design control books.
To the extent the exercise of the Owner's rights hereunder requires the opportunity for review of any
documents or the opportunity for participation in any meetings, Developer agrees, without request
therefor by the Owner, to promptly provide copies of such documents or notice of such meetings to
the Owner and the Owner's Consultant, as applicable, after receipt of the same by Developer and
reasonably in advance of any meetings to allow for appropriate travel arrangements to the extent
practical under the circumstances. If Owner's Consultant is not in attendance, the meeting will
proceed and Developer will promptly provide Owner's Consultant with minutes of the meeting. The
Owner's Consultant shall not interfere with any Construction Work being performed at the Project
Site and shall comply with all safety standards and other job-site rules and regulations of Developer.
(b) Prior to tl}e Commencement of Construction, Developer shall provide to the
Owner a construction schedule for each phase of the Project, which schedule shall be prepared using
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the critical path method ("CPM"; such schedule, as it shall be amended from time to time in
accordance with the Construction Agreements, shall be referred to as the "CPM Schedule"),
including a CPM network diagram, for use in scheduling and controlling the Construction. The
CPM Schedule shall, at a minimum, show:
(i)
activity;
(ii)
(iii)
activities;
(iv)
(v)
(vi)
the early and late start and stop times for each major construction
all "critical path" activities and their duration;
the sequencing of all procurement, approval, delivery and work
manpower levels;
late order dates for all long lead time materials and equipment; and
critical Developer and Owner decision dates.
Developer shall promptly provide to the Owner's Consultant information copies of
the CPM Schedule. The CPM Schedule shall (1) be revised by Developer whenever there is a
material variance in the progress of the Construction from the then current CPM Schedule and
otherwise at appropriate intervals, but in no event less frequently than monthly and (2) provide for
expeditious and practicable execution of the Construction.
A copy of the CPM network diagram highlighting the completed and partially
completed activities and manpower schedule shall be maintained by Developer on a current basis,
at the Project Site, to accurately reflect the actual progress of the Construction and shall be displayed
at all times in a manner that is readily accessible to the Owner's Consultant. One (1) copy of the
updated CPM Schedule, CPM network diagram and manpower schedule shall be delivered to the
Owner's Consultant promptly after the same have been revised as required herein. The CPM
network diagram shall reflect the actual progress of Construction to date. The manpower schedule
shall reflect actual manpower levels each week compared to manpower levels set forth in the CPM
Schedule.
Developer shall keep the Owner's Consultant informed on a periodic (but not less
than twice per month) basis, unless circumstances dictate the need to do so more frequently, as to
actual progress made. Developer shall provide the Owner's Consultant with reasonable access to
the reports, logs and other systems in which Developer records or notes the daily progress of the
Construction Work. Developer shall inform the Owner's Consultant of any deviation from the CPM
Schedule which, in Developer's good faith determination, is likely to cause a material delay in the
Substantial Completion of the Project (as shown on the current CPM Schedule), within three (3)
business days after such deviati9n becomes apparent to Developer.
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ARTICLE 5.
MISCELLANEOUS CONSTRUCTION PROVISIONS
Section 5.1 Title to the Existin~ Hotels.
Contemporaneously with the execution hereof, the Owner has conveyed to Developer title
to the improvements presently known as the Royal Palm Hotel and the Shorecrest Hotel
(collectively, the "Existing Hotels"). The Owner has not made and does not make any
representations as to the physical or structural condition, value, adequacy or fitness for use of any
equipment or systems in the Existing Hotels, or the presence on or about the Existing Hotels of any
substance or material which is or may hereafter be subject to any Environmental Laws, including,
without limitation, Hazardous Materials, or any other matter or thing affecting or related_ to ~he
Existing Hotels, and Developer hereby expressly acknowledges that no such representations have
been made, and Developer further acknowledges that it has inspected the Existing Hotels and agrees
to take the same "as is", in such condition as the same may be in on the date of delivery of the deed
thereto. The foregoing is subject to the provisions of Section 35.3(b) of the Ground Lease.
Section 5.2 Names of Contractors. Materialmen. etc.
Developer shall furnish the Owner, within ten (10) days after the end of each month, with
a list of each contractor, subcontractor, vendor and supplier who is performing any labor or
supplying any materials in excess of Five Hundred Thousand Dollars ($500,000), except for FF&E
items in which event the aforesaid threshold amount shall be Two Hundred Fifty Thousand Dollars
($250,000), in connection with Construction of the Project. The list shall state the name and address
of each such contractor, subcontractor, vendor and supplier and in what capacity each such Person
is performing work at the Project Site. All Persons employed by Developer with respect to
Construction of the Project shall be paid, without subsequent deduction or rebate unless expressly
authorized by Requirements, not less than the relevant prevailing wage as prescribed by the City of
Miami Beach Prevailing Wage Ordinance, Miami Beach City Code, Section 31A-27, as amended.
Section 5.3 Construction A~reements.
(a) Required Clauses. All Construction Agreements which provide for the
performance of labor on the Project Site shall include the following provisions (or language
substantially similar thereto which is approved in advance by the Owner); provided, however, that
any Construction Agreement having aggregate payments of Five Hundred Thousand Dollars
($500,000) or less shall not be required to include the provisions set forth in paragraph (i) below:
(i) an agreement by the Contractor to provide, prior to the commencement
of its portion of the work, and maintain during the performance thereof, the insurance set forth on
Exhibit 5.3(a) attached hereto apd incorporated by reference herein. Such Contractor shall procure
an appropriate clause in, or endorsement on, any policy of insurance carried by it pursuant to which
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the insurance company waives subrogation or consents to a waiver of right of recovery consistent
with the release, discharge, exoneration and covenants not to sue contained herein. Original
Certificates of Insurance, in quadruplicate (all of which shall be original signed counterparts) and
including the Miami Beach Redevelopment Agency (and any successor Owner) and the City, as
additional insureds (the "Certificate ofInsurance"), shall be furnished to Developer by Contractor
prior to commencement of work, denoting all insurance required of Contractor pursuant to the terms
of the Contract. The Contractor shall secure an original Certificate of Insurance from each of its
sub-contractors and/or suppliers with limits of liability equal to those carried by the Contractor;
(ii) "Contractor hereby waives all rights of recovery, claims, actions or
causes of action against the Miami Beach Redevelopment Agency (and any successor Owner), the
City of Miami Beach, Florida and their respective elected and appointed officials (including, without
limitation, the Owner's Chairman and Members and the City's Mayor and City Commissioner.s),
directors, officials, officers, shareholders, members, employees, successors, assigns, agents,
contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals,
invitees and affiliates, for any loss or damage to property of Contractor which may occur at any time
in connection with the Project.";
(iii) "To the fullest extent permitted by law, Contractor shall and does
hereby indemnify arid hold harmless the Miami Beach Redevelopment Agency (and any successor
Owner), the City of Miami Beach, Florida and their respective elected and appointed officials
(including the Owner's Chairman and Members and the City's Mayor and City Commissioners),
directors, officials, officers, shareholders, members, employees, successors, assigns, agents,
contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals,
invitees and affiliates, from and against any and all liability , claims, demands, damages, losses, fines,
penalties, expenses and costs of every kind and nature, including, without limitation, costs of suit
and attorneys' fees and disbursements (collectively, "Expenses"), resulting from or in any manner
arising out of, in connection with or on account of: (1) any act, omission, fault or neglect of
Contractor, or anyone employed by it in connection with the work or any phase thereof, or any of
its agents, contractors, subcontractors, employees, invitees or licensees in connection with the work,
or anyone for whose acts any of them may be liable, (2) claims of injury (including physical,
emotional, economic or otherwise) to or disease, sickness or death of persons or damage to property
(including, without limitation, loss of use resulting therefrom) occurring or resulting directly or
indirectly from the work or any portion thereof or the activities of Contractor or anyone employed
by it in connection with the work, or any portion thereof, or any of its respective agents, contractors,
subcontractors, employees, invitees or licensees in connection with the work, or anyone for whose
acts any of them may be liable, or (3) mechanics' or materialmen's or other liens or claims (and all
costs or expenses associated therewith) asserted, filed or arising out of the work or any phase thereof
other than liens or claims arising out of Developer's failure to make the required payments properly
due Contractor. In no event shall Contractor be able to seek or be entitled to consequential damages
(including, without limitation, loss of profits or loss of business opportunity) for claims arising under
this contract. This indemnificatipn obligation shall not be limited in any way by: (x) any limitation
on the amount or type of damages, compensation or benefits payable to Contractor under worker's
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compensation acts, disability benefit acts or other employee benefit acts or other insurance provided
for by this contract; or (y) the fact that the Expenses were caused in part by a party indemnified
hereunder. The Contractor further agrees that this indemnification shall be made a part of all
contracts and purchase orders with sub-contractors or material suppliers. The indemnification
agreement included in this contract is to be assumed by all sub-contractors.";
(iv) (1) the right of Developer to assign to the Owner, subject and
subordinate to the rights of Lender, the contract and Developer's rights thereunder, at the Owner's
request, without the consent of the Contractor, and (2) that without the necessity of such assignment
and without thereby assuming any of the obligations of Developer under the contract occurring prior
to such assignment and/or purchase order, except for Developer's payment obligations, the Owner
shall have the right to enforce the full and prompt performance by the Contractor of such
Contractor's obligations under the contract;
(v) "Contractor agrees to comply with all laws and requirements
applicable to Contractor and the Project, including, without limitation, the City of Miami Beach
Prevailing Wage Ordinance, Miami Beach City Code, Section 31A-27, as amended.";
(vi) "Upon an Event of Default by Developer resulting in a termination of
that certain Agreement of Lease between Developer and Owner, dated as of , 1997,
pursuant to which Developer (as tenant) has agreed to lease the Land on which the Hotel is to be
constructed, Contractor will, at the option of the Miami Beach Redevelopment Agency, subject and
subordinate to the rights of Lender, be terminated or Contractor will honor this agreement as if this
agreement had been originally entered into with the Miami Beach Redevelopment Agency.";
(vii) "Nothing contained in this contract is in any way intended to be a
waiver of the prohibition on Contractor's ability to file liens against property of the Miami Beach
Redevelopment Agency, or of any other constitutional, statutory, common law or other protections
afforded to public bodies or governments.";
(viii) "Upon an Event of Default by Developer resulting in a termination of
that certain Agreement of Lease between Developer and Owner, dated as of , 1997,
pursuant to which Developer (as tenant) has agreed to lease the Land on which the Hotel is to be
constructed, all covenants, representations, guarantees and warranties of Contractor hereunder shall
be, subject and subordinate to the rights of Lender, deemed to be made for the benefit of the Miami
Beach Redevelopment Agency (and the Miami Beach Redevelopment Agency shall be deemed to
be a third-party beneficiary hereof) and shall be, subject and subordinate to the rights of Lender,
enforceable by the Miami Beach Redevelopment Agency.";
(ix) "Unless and until the Miami Beach Redevelopment Agency expressly
assumes the obligations of the Developer under this contract (and then only to the extent the same
arise from and after such assum~tion), the Miami Beach Redevelopment Agency shall not be a party
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to this contract and will in no way be responsible to any party for any claims of any nature
whatsoever arising or which may arise in connection with such contract."; and
(x) "Contractor hereby agrees that notwithstanding that Contractor
performed work at the Project Site or any part thereof, the Miami Beach Redevelopment Agency
shall not be liable in any manner for payment or otherwise to Contractor in connection with the work
performed at the Project Site, except to the extent the Miami Beach Redevelopment Agency
expressly assumes the obligations of Developer hereunder (and then only to the extent such
obligations arise from and after such assumption)."
Section 5.4 Demolition of the Project Site.
Except as necessary and as provided in the Plans and Specifications in conne~tion .wjth .
Construction of the Project or as part of a Casualty Restoration or Condemnation Restoration or as
may be otherwise permitted under this Agreement or the Ground Lease, Developer shall not
demolish any portion of the Project Site. Any demolition permitted hereunder shall be performed
in accordance with all applicable Requirements.
ARTICLE 6.
FINANCING OF PROJECT CONSTRUCTION
AND DISBURSEMENT PROCEDURES
Section 6.1
Owner's Contributions.
(a) Owner has acquired the land and improvements, existing as of the
Commencement Date, commonly known as the Royal Palm Hotel and more fully described in
Exhibit A attached hereto and incorporated by reference herein, at a cost to Owner of Five Million
Three Hundred Ten Thousand Dollars ($5,310,000).
(b) Owner has acquired the land and improvements, existing as of the
Commencement Date, commonly known as the Shorecrest Hotel and more fully described in
Exhibit A attached hereto and incorporated by reference herein, at a cost to Owner of Four Million
Six Hundred Ninety Thousand Dollars ($4,690,000).
(c) The RP Improvements land and the Shorecrest Improvements land are being
leased to Developer collectively as the Land pursuant to the Ground Lease.
(d) Except as provided in Section 6.3, Owner's total contribution shall not exceed
Ten Million Dollars ($10,000,000).
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Section 6.2 Developer's Contributions.
Developer has provided the Funded Equity. Developer shall also provide all of the funds
necessary to complete Construction of the Project.
Section 6.3 ~.
(a) City Permit Fees. Agency agrees hereby to assume payment responsibility
for any and all Permits, now or hereafter, required to be obtained from the City for the construction
of the Hotel, which include, without limitation, building permit applications, inspection,
certification, impact and connection fees that the City may levy by or through its Public Works
Department (including, without limitation, water and sewer fees) and those fees listed on Exhibit
6.3(a) attached hereto and incorporated by reference herein and in the City of Miami Beach Builciipg
Department Fee Schedule, as amended through September 16, 1992 by Ordinance Number 92-2796,
or the most current edition adopted by the City, which fee schedule is hereby incorporated by
reference and made a part of this Agreement (collectively, the "Fees"). Agency shall remain
responsible for payment of the Fees notwithstanding any and all modifications or changes in price
structure as imposed by the City or any other Governmental Authority authorized to impose such
Fees. Agency acknowledges that the Developer or an Affiliate has paid all applicable fees thus far
in the interest of expediting the City of Miami Beach Design Review Board and City of Miami
Beach Historic Preservation Board applications, and Agency agrees to reimburse Developer,
promptly following the date hereof, for the Fees or any portion thereof paid by Developer or an
Affiliate or for which Developer otherwise qualifies.
(b) Non-City Permit Fees. Agency will cooperate with Developer in an effort
to persuade Metropolitan Dade County to waive its fees relating to the Project. To the extent that
Metropolitan Dade County does not waive the impact, connection and service fees now or hereafter
imposed by Miami Dade Water and Sewer Authority pursuant to Ordinance No. 88-112, Section 1,
Subchapter 7, dated December 6, 1988, as updated (collectively, the "Connection Fees"), Agency
shall pay the Connection Fees when due on behalf of Developer. Developer agrees to reimburse the
Agency for the Connection Fees, together with interest thereon at eight percent (8%) per annum in
three hundred (300) equal monthly installments of principal and interest commencing on the Hotel
Opening Date; provided, however, in the event of a Sale of the Hotel requiring payment of the
Purchase Price in full to Owner, Developer shall pay the entire outstanding balance plus all accrued
interest due on the Connection Fees.
Section 6.4 Expedited Processin~.
The City shall make reasonable efforts to provide for expedited handling of all review board
hearings and/or permit requests made to it by Developer relating to the Construction of the Project.
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ARTICLE 7.
INSURANCE
Developer shall, in accordance with the Ground Lease, carry or cause to be carried the
insurance required under Section 7.10 of the Ground Lease, including the relevant provisions of
Sections 7.2, 7.3, 7.6 and 7.14 of the Ground Lease.
ARTICLE 8.
DAMAGE, DESTRUCTION AND RESTORATION
Section 8.1 Casualty.
If the Project Site is damaged or destroyed in whole or in part by fire or other casualty, the
provisions of the Ground Lease applicable to damage or destruction by fire or other casualty to the
"Premises" described under the Ground Lease shall govern the rights and obligations of Developer,
Owner and any Recognized Mortgagee hereunder.
Section 8.2 Effect of Casualty on this A~reement.
Except as provided in Section 8.1 or the Ground Lease, this Agreement shall not terminate,
be forfeited or be affected in any manner, by reason of any damage to, or total or partial destruction
of, or untenantability of the Project Site or any part thereof resulting from such damage or
destruction.
ARTICLE 9.
CONDEMNATION
Section 9.1 Takin2.
If all or any portion of the Project Site is taken for any public or quasi-public purpose by any
lawful power or authority by the exercise of the right of condemnation or eminent domain or by
agreement among Owner, Developer, any Recognized Mortgagee and those authorized to exercise
such right, the provisions of the Ground Lease applicable to such taking of the "Premises" described
under the Ground Lease shall govern the rights and obligations of Developer, Owner and any
Recognized Mortgagee hereunder.
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Section 9.2 Effect ofTakin~ on this A~reement.
Except as provided in Section 9.1 or the Ground Lease, this Agreement shall not terminate,
be forfeited or be affected in any manner, by reason of any taking of the Project Site or any part
thereof.
ARTICLE 10.
RIGHTS OF RECOGNIZED MORTGAGEE
Section 10.1 Notice and Ri~ht to Cure Developer's Defaults.
(a) Owner shall give to the Recognized Mortgagee and/or Affiliate Mortga~ee
a copy of each notice of Default at the same time as it gives notice of such Default to Deveioper~ and
no such notice of Default shall be deemed effective with respect to any Recognized Mortgagee or
Affiliate Mortgagee unless and until a copy thereof shall have been so received by or refused by such
Recognized Mortgagee or Affiliate Mortgagee, as applicable. All such notices to a Recognized
Mortgagee or Affiliate Mortgagee shall be sent as set forth in Section 11.4(a) of the Ground Lease.
Owner shall also give the Recognized Mortgagee or Affiliate Mortgagee notice ("Notice of Failure
to Cure") in the event Developer fails to cure a Default within the period, if any, provided in this
Agreement for such cure, promptly following the expiration of such period (i.e., an Event of
Default).
(b) The Recognized Mortgagee shall have a period of sixty (60) days after receipt
of the !'Jotice of Failure to Cure, in the case of any Event of Default, to (1) cure the Event of Default
referred to in the Notice of Failure to Cure or (2) cause it to be cured, subject to the same additional
time periods provided to Developer pursuant to the provisions of Section 19.1(b). Nothing
contained herein shall be construed as imposing any obligation upon any Mortgagee to so perform
or comply on behalf of Developer.
(c) Owner shall accept performance by a Mortgagee of any covenant, condition
or agreement on Developer's part to be performed hereunder with the same force and effect as
though performed by Developer.
(d) Notwithstanding any other provision of this Agreement, no payment made to
Owner by any Mortgagee shall constitute the Mortgagee's agreement that such payment was, in fact,
due under the terms of this Agreement.
(e) Notwithstanding the foregoing prOVISIOns of this Section 10.1, if a
Recognized Mortgagee fails (for any reason) to cure any Event of Default by Developer within thirty
(30) days following receipt of the Notice of Failure to Cure regarding such Event of Default, then
Owner may, but shall be under t:lo obligation to, perform the obligation of Developer the breach of
which gave rise to such Event of Default (including, without limitation, the performance of any of
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the obligations of Developer under any Construction Agreement), without waiving or releasing
Developer from its obligations with respect to such Event of Default. Developer hereby grants
Owner access to the Project Site in order to perform any such obligation. Any amount paid by
Owner in performing Developer's obligations as provided in this Section 10.I(e), including, without
limitation, all costs and expenses incurred by Owner in connection therewith, shall be reimbursed
to Owner within thirty (30) days following Owner's demand therefor, together with a late charge on
amounts actually paid by Owner, calculated at the Late Charge Rate from the date of notice of any
such payment by Owner to the date on which payment of such amounts is received by Owner.
(f) If there is more than one Recognized Mortgagee, only that Recognized
Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized Mortgage is
most senior in lien shall be recognized as having rights under this Article 10, unless such first
priority Recognized Mortgagee has designated in writing to Owner a Recognized Mortgag.ee w~o~e
Mortgage is junior in lien to exercise such right.
ARTICLE 11.
NO SUBORDINATION
Owner's Interest in the Premises, including, without limitation, Owner's interest in the
Ground Lease and this Agreement, as the same may be modified, amended or renewed, shall not be
subject or subordinate to (a) any Mortgage now or hereafter existing, (b) any other liens or
encumbrances hereafter affecting Developer's Interest in the Premises and Developer's interest in
this Agreement or (c) any sublease or any mortgages, liens, or encumbrances now or hereafter placed
on an}' subtenant's interest in the Project Site. Developer's Interest in the Premises and this
Agreement and all rights of Developer hereunder are and shall be subject to the Title Matters as set
forth on Exhibit 2.1 to the Ground Lease.
ARTICLE 12.
MAINTENANCE AND REPAIR
Section 12.1 Maintenance of PrQject Site.
(a) Maintenance and Repair. (i) Developer shall take good care of, and keep and
maintain, the Project Site in good and safe order and condition, and shall make all repairs reasonably
necessary to keep the Project Site in good and safe order and condition.
(ii) Developer shall not commit, and shall use all reasonable efforts to
prevent waste, damage or injury to the Project Site, except with respect to the Construction of the
Project (but subject, however, to the provisions of Section 12.1(a)(i) hereof).
"
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(b) Cleanin~ of Proiect Site. Developer shall keep clean and free from rubbish
all areas of the Project Site.
(c) Other Areas. Developer shall promptly rectify any damage or interference
caused by Developer to any improvements, equipment, structures or vegetation outside of the Project
Site which is owned or controlled by Owner or the City. The City or the Owner shall promptly
rectify any damage or interference caused by the City or the Owner to the Project Site.
Section 12.2 Waste Dhwosal.
Developer shall dispose of waste from all areas of the Project Site in accordance with
Requirements and in a prompt, sanitary and aesthetically reasonably inoffensive manner.
ARTICLE 13.
REQUIREMENTS
Section 13.1 Requirements.
(a) Obli~ation to Comply. In connection with any Construction Work, and with
the maintenance, management, use, construction and operation of the Project Site and Developer's
performance of its obligations hereunder, Developer shall comply promptly with all Requirements,
without regard to the nature of the work required to be done, whether extraordinary or ordinary, and
whether requiring the removal of any encroachment (but Developer may seek to obtain an easement
in ord€?r to cure an encroachment, if permitted by Requirements), or affecting the maintenance, use
or occupancy of the Project Site, or involving or requiring any structural changes or additions in or
to the Project Site and regardless of whether such changes or additions are required by reason of any
particular use to which the Project Site, or any part thereof, may be put. No consent to, approval of
or acquiescence in any plans or actions of Developer by Owner, in its proprietary capacity as Owner,
or Owner's designee shall be relied upon or construed as being a determination that such are in
compliance with the Requirements, or, in the case of construction plans, are structurally sufficient,
prudent or in compliance with the Requirements.
(b) Definition.
"Requirements" means:
(i) any and all laws, constitutions, rules, regulations, orders, ordinances,
charters, statutes, codes, executive orders and requirements of all Governmental Authorities having
jurisdiction over a Person and/or the Project Site or any street, road, avenue or sidewalk comprising
a part of, or lying in front of, the Project Site or any vault in, or under the Project Site (including,
without limitation, any of the for.egoing relating to handicapped access or parking, the Building Code
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of the City and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of
any applicable Fire Rating Bureau or other body exercising similar functions);
(ii) the temporary and/or permanent certificate or certificates of occupancy
issued for the Project Site as then in force;
(iii) the requirements of the City of Miami Beach Prevailing Wage
Ordinance, Miami Beach City Code, Section 31A-27, as amended; and
(iv) any and all provisions and requirements of any property, casualty or
other insurance policy required to be carried by Developer under this Agreement.
ARTICLE 14.
DISCHARGE OF LIENS
Section 14.1 Creation of Liens.
(a) Developer shall not create, cause to be created, or suffer or permit to exist (1)
any lien, encumbrance or charge upon this Agreement, the Project Site or any part thereof or
appurtenance thereto, which is not removed within the time period required pursuant to Section 14.2,
(2) any lien, encumbrance or charge upon any assets of, or funds appropriated to, Owner, or (3) any
other matter or thing whereby Owner's Interest in the Premises or any part thereof or appurtenance
thereto might be materially impaired. Notwithstanding the above, Developer shall have the right to
execute Mortgages and other loan documents, subleases and other instruments (including, without
limitation, equipment leases) as provided by, and in accordance with, the provisions of the Ground
Lease, including, without limitation, any liens on FF&E.
(b) Owner shall not create, cause to be created, or suffer or permit to exist (i) any
lien, encumbrance upon this Agreement, the Ground Lease or the income therefrom (except as
expressly provided in the Ground Lease), the Project Site, or any part thereof or appurtenance
thereto, which is not removed within the time period required pursuant to Section 14.2, (ii) any lien,
encumbrance or charge upon any assets of, or funds appropriated to, Developer, or (iii) any other
matter or thing whereby Developer's Interest in the Premises any part thereof or appurtenant thereto
might be materially impaired.
Section 14.2 Dischar~e of Liens.
( a) If any mechanic's, laborer's, vendor's, materialman's or similar statutory lien
(including tax liens, provided the underlying tax is an obligation of Developer by the Requirements
or by a provision of this Agreement) is filed against the Project Site or any part thereof, or if any
public improvement lien create.d, or caused or suffered to be created by Developer shall be filed
against any assets of, or funds appropriated to, Developer or Owner, Developer shall, within thirty
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(30) days after Developer receives notice of the filing of such mechanic's, laborer's, vendor's,
materialman's or similar statutory lien or public improvement lien, cause it to be discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. However,
Developer shall not be required to discharge any such lien if Developer shall have (i) furnished
Owner with, at Developer's option, a cash deposit, bond, letter of credit from an Institutional Lender
(in form reasonably satisfactory to Owner) or other security (such as a personal guaranty or title
company indemnity) reasonably satisfactory to Owner, in an amount sufficient to pay the lien with
interest and penalties; and (ii) brought an appropriate proceeding to discharge such lien and is
prosecuting such proceeding with diligence and continuity; except that if, despite Developer's efforts
to seek discharge of the lien, Owner reasonably believes that a court judgment or order foreclosing
such lien is about to be entered or granted and so notifies Developer, Developer shall, within ten (10)
days of notice to such effect from Owner (but not later than three (3) business days prior to the entry
or granting of such judgment or order of foreclosure), cause such lien to be discharged of re~o~d _ or
Owner may thereafter discharge the lien in accordance with Section 18.2 and look to the security .
furnished by Developer for reimbursement of its cost in so doing. Notwithstanding anything to the
contrary contained in this Section 14.2(a), in the case of a public improvement lien which provides
for installment payments as a means of satisfying such lien, Developer shall be required only to pay,
on a timely basis, all installments when due.
(b) Notwithstanding anything to the contrary contained in Section 14.2(a), if any
mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax liens, provided
the underlying tax is an obligation of Owner by Requirements or by a provision of this Agreement)
is filed against the Project Site or any part thereof or Developer's Interest in the Premises or Owner's
Interest in the Premises as a result of any action of Owner, its officers, employees, representatives
or agents, Owner shall, within thirty (30) days after Owner receives notice of the filing of such
mecharuc's, laborer's, vendor's, materialman's or similar statutory lien, cause it to be discharged of
record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. However,
Owner shall not be required to discharge any such lien if Owner shall have (i) furnished Developer
with, at Owner's option, a cash deposit, bond, letter of credit from an Institutional Lender (in form
reasonably satisfactory to Developer) or other security (such as a personal guaranty or title company
indemnity) reasonably satisfactory to Developer, in an amount sufficient to pay the lien with interest
and penalties and (ii) brought an appropriate proceeding to discharge such lien and is prosecuting
such proceeding with diligence and continuity; except that if, despite Owner's efforts to seek
discharge of the lien, Developer reasonably believes that a court judgment or order foreclosing such
lien is about to be entered or granted and so notifies Owner, Owner shall, within ten (10) days of
notice to such effect from Developer (but not later than three (3) business days prior to the entry or
granting of such judgment or order of foreclosure), cause such lien to be discharged of record or
Developer may thereafter discharge the lien in accordance with Section 18.2 and look to the security
furnished by Owner for reimbursement of its cost in so doing.
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Section 14.3 No Authority to Contract in Name of Owner.
Nothing contained in this Article shall be deemed or construed to constitute the
consent or request of Owner, express or implied, by implication or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement of, alteration to, or repair of, the Project Site or any part
thereof. Notice is hereby given, and Developer shall cause all Construction Agreements to provide,
that to the extent enforceable under Florida law, Owner shall not be liable for any work performed
or to be performed at the Project Site or any part thereof for Developer or for any subtenant or for
any materials furnished or to be furnished to the Project Site or any part thereof for any of the
foregoing, and no mechanic's, laborer's, vendor's, materialman's or other similar statutory lien for
such work or materials shall attach to or affect Owner's Interest in the Premises or any part thereof
or any assets of Owner. The foregoing shall not require Developer to request advance wai~ers of
lien from contractors or subcontractors.
ARTICLE 15.
NO LIABILITY FOR INJURY OR DAMAGE, ETC.
The provisions of Article 19 of the Ground Lease shall be applicable to this Agreement as
if the references to the "Premises" in such Article 19 were references to the "Project Site".
ARTICLE 16.
INDEMNIFICATION
Section 16.1 Indemnification Generally.
The provisions of Article 20 of the Ground Lease shall be applicable to this Agreement as
if the references to the "Premises" in such Article 20 were references to the "Project Site".
Section 16.2 Governs A~reement.
The provisions of this Article shall govern every other provision of this Agreement. The
absence of explicit reference to this Article in any particular provision of this Agreement shall not
be construed to diminish the application of this Article to such provision.
Section 16.3 Survival.
The provisions of this Article shall survive the expiration of the Term of this Agreement.
.'
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ARTICLE 17.
CERTIFICATES BY OWNER AND DEVELOPER
Upon request for reasonable purposes, either party shall provide a written statement to the
requesting party certifying as to the relevant information required pursuant to Article 27 of the
Ground Lease with respect to this Agreement and the date to which amounts payable hereunder by
either party have been paid.
ARTICLE 18.
RIGHT TO PERFORM THE OTHER PARTY'S COVENANTS
Section 18.1 Ri~ht to Perform Other Party's Obli~ations.
(a) If an Event of Default shall occur, Owner may, but shall be under no
obligation to, perform the obligation of Developer the breach of which gave rise to such Default,
without waiving or releasing Developer from any of its obligations contained herein, provided that
Owner shall exercise such right only in the event of a bona fide emergency or after five (5) business
days notice, and Developer hereby grants Owner access to the Project Site in order to perform any
such obligation.
(b) If a default by Owner under this Agreement shall occur and be continuing
beyond any applicable grace period, Developer may, but shall be under no obligation to, perform the
oblig~tions of Owner (other than those which are governmental as opposed to proprietary
obligations) the breach of which gave rise to such default, without waiving or releasing Owner from
any of its obligations contained herein, provided that Developer shall exercise such right only in the
event of a bona fide emergency or after five (5) business days notice to Owner or the City, as
applicable.
Section 18.2 Discharli:e of Liens.
(a) If Developer fails to cause any mechanic's, laborer's, vendor's, materialman's
or similar statutory lien (including tax liens, providing the underlying tax is an obligation of
Developer by law or by a provision of this Agreement) to be discharged of record in accordance with
the provisions of Article 14, Owner may, but shall not be obligated to, discharge such lien of record
either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit
or by bonding proceedings.
(b) If Owner fails to cause any mechanic's, laborer's, vendor's, materialman's
or similar statutory lien (including tax liens, providing the underlying tax is an obligation of Owner
by law or by a provision of this Agreement) to be discharged of record in accordance with the
provisions of Article 14, Developer may, but shall not be obligated to, discharge such lien of record
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either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit
or by bonding proceedings. If Developer's Interest in the Premises (or any portion thereof) is
threatened or a material interest of Developer is impaired, Developer may also, if Owner has not
done so (or bonded such lien), compel the prosecution of an action for the foreclosure of such lien
by the lienor and the payment of the amount of the judgment in favor of the lienor with interest, costs
and allowances.
Section 18.3 Reimbursement for Amounts Paid Pursuant to this Article.
(a) Any amount paid by Owner in performing Developer's obligations as
provided in this Article, including all costs and expenses incurred by Owner in connection therewith,
shall be reimbursed to Owner within thirty (30) days of Owner's demand, together with a late charge
on amounts actually paid by Owner, calculated at the Late Charge Rate from the date of nQti~e. of
any such payment by Owner to the date on which payment of such amounts is received by Owner.
(b) Any amount paid by Developer in performing Owner's obligations as
provided in this Article, including all costs and expenses incurred by Developer in connection
therewith, shall be reimbursed to Developer within thirty (30) days of Developer's demand, together
with a late charge on amounts actually paid by Developer, calculated at the Late Charge Rate from
the date of notice of any such payment by Developer to the date on which payment of such amounts
is received by Developer.
Section 18.4 Waiver. Release and Assumption of Obli~ations.
(a) Owner's payment or performance pursuant to the provisions of this Article
shall not be, nor be deemed to constitute, Owner's assumption of Developer's obligations to payor
perform any of Developer's past, present or future obligations hereunder.
(b) Developer's payment or performance pursuant to the provisions of this Article
shall not be, nor be deemed to constitute, Developer's assumption of Owner's obligations to payor
perform any of Owner's past, present or future obligations hereunder.
ARTICLE 19.
EVENTS OF DEF AUL T, CONDITIONAL
LIMITATIONS, REMEDIES, ETC.
Section 19.1 Definition.
Each of the following events shall be an "Event of Default" hereunder:
(a) an Event of Default under the Ground Lease which results in a termination
thereof;
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(b) if Developer shall default in the observance or performance of any term,
covenant or condition of this Agreement on Developer's part to be observed or performed and, if no
cure period is expressly provided for herein, Developer shall fail to remedy such Default within
thirty (30) days after notice by Owner of such Default (the "Default Notice"), or if such a Default
is of such a nature that it cannot reasonably be remedied within thirty (30) days (but is otherwise
susceptible to cure), Developer shall not (i) within thirty (30) days after the giving of such Default
Notice, advise Owner of Developer's intention to institute all steps necessary (and from time to time,
as reasonably requested by Owner, Developer shall advise Owner of the steps being taken) to remedy
such default (which such steps shall be reasonably designed to effectuate the cure of such Default
in a professional manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same;
(c) to the extent permitted by law, if Developer admits, in writing, th~t it_is
generally unable to pay its debts as such become due;
(d) to the extent permitted by law, if Developer makes an assignment for the
benefit of creditors;
(e) to the extent permitted by law, if Developer files a voluntary petition under
Title 11 of the United States Code, or if Developer files a petition or an answer seeking, consenting
to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future Federal bankruptcy code or any other
present or future applicable Federal, state or other bankruptcy or insolvency statute or law, or seeks,
consents to, acquiesces in or suffers the appointment of any trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Developer, of all or any substantial part of its
properties, or of all or any part of Developer's Interest in the Premises, and the foregoing are not
stayed or dismissed within one hundred fifty (150) days after such filing or other action;
(f) to the extent permitted by law, if, within one hundred fifty (150) days after
the commencement of a proceeding against Developer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the present or any future
Federal bankruptcy code or any other present or future applicable Federal, state or other bankruptcy
or insolvency statute or law, such proceeding has not been dismissed, or if, within one hundred
eighty (180) days after the appointment, without the consent or acquiescence of Developer, of any
trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Developer,
of all or any substantial part of its properties, or of all or any part of Developer's Interest in the
Premises, such appointment has not been vacated or stayed on appeal or otherwise, or if, within one
hundred eighty (180) days after the expiration of any such stay, such appointment has not been
vacated;
(g) if a levy under execution or attachment in an aggregate amount of One
Hundred Twenty-Five Thous~d Dollars ($125,000) (as adjusted for inflation in accordance with
the Ground Lease) at anyone time is made against the Project Site or any part thereof or rights
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appertaining thereto (except for a levy made in connection with actions taken by Owner (other than
holding Owner's Interest in the Premises)), or this Agreement and such execution or attachment is
not vacated or removed by court order, bonding or otherwise within a period of sixty (60) days,
subject to Unavoidable Delays after such levy or attachment;
(h) if a default by Developer under the Lease and/or the Garage Easement
Agreement shall have occurred and be continuing beyond any applicable cure period, including any
cure period applicable to a Recognized Mortgagee; or
(i) a default by Developer under the Reciprocal Access, Use, Development and
Easement Agreement among Developer, Jefferson Plaza Ltd., a Florida limited partnership, the City
and Owner dated , 1997 which continues beyond any applicable cure period.
In the event of a Default which with the giving of notice to Developer and the passage of
time would constitute an Event of Default, Owner's notice to Developer shall state with specificity
the provision of this Agreement under which the Default is claimed, the nature and character of such
Default, the facts giving rise to such Default, the date by which such Default must be cured pursuant
to this Agreement, if applicable, and, if applicable, that the failure of Developer to cure such Default
by the date set forth in such notice will result in Owner having the right to terminate this Agreement.
With respect only to Development Disputes, Owner's allegation of a Default shall be subject to
e.xpedited arbitration in accordance with the provisions of Article 22, provided Tenant shall initiate
any such arbitration within the applicable grace period provided in Section 19.1 or within ten (10)
business days after receipt of Owner's notice if no such grace period is provided therein.
Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred until
such time as Owner shall have given Developer notice of the occurrence of an Event of Default;
provided, however, if Developer shall dispute, in accordance with the provisions of Article 22,
Owner's assertion that an Event of Default has occurred within ten (10) business days after the
giving of such notice by Owner, an Event of Default shall not be deemed to have occurred and
Owner shall not be permitted to exercise any rights against Developer stated herein to arise out of
an Event of Default until such time as the Arbitrator or a court, if applicable, has determined that an
Event of Default has occurred.
Notwithstanding anything to the contrary contained herein, no Event of Default shall be
deemed to have occurred if Guarantor cures such default pursuant to the Completion Guarantee or
otherwise perform or cause to be performed the covenant, condition or agreement on Developer's
part to be performed hereunder, and Owner shall accept performance with the same force and effect
as though performed by Developer; provided, however, all cure periods provided to Guarantor shall
run concurrently with the cure periods provided to Developer.
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Section 19.2 Enforcement of Performance.
If an Event of Default occurs, Owner may elect to (a) enforce performance or observance by
Developer of the applicable provisions of this Agreement, or (b) recover damages for breach of this
Agreement or (c) in the circumstances described in Section 19.3(a), terminate this Agreement
pursuant to Section 19.3(a).
Section 19.3 Expiration and Termination of A~reement.
(a) If an Event of Default occurs under the Ground Lease which results in a
termination of the Ground Lease, this Agreement shall terminate. If such termination is stayed by
order of any court having jurisdiction over any case described in Sections 19.1(e) or 19.1(f) or by
federal or state statute, then, following the expiration of any such stay, or if the trust~e appoi~ted.in
any such case, Developer or Developer as debtor-in-possession fails to assume Developer's'
obligations under this Agreement within the period prescribed therefor by law or within thirty (30)
days after entry of the order for relief or as may be allowed by the court, Owner, to the extent
permitted by law or by leave of the court having jurisdiction over such case, shall have the right, at
its election, to terminate this Agreement on five (5) days notice to Developer, Developer as debtor-
in-possession or the trustee. Upon the expiration of the five-day period this Agreement shall expire
and terminate and Developer, Developer as debtor-in-possession and/or the trustee immediately shall
quit and surrender Developer's Interest in the Premises and possession thereof.
(b) If this Agreement is terminated as provided in Section 19.3(a), Owner may,
without notice, re-enter and repossess Developer's Interest in the Premises and may dispossess
Developer by summary proceedings, writ of possession, proceedings in bankruptcy court or
otherWise, subject to applicable Requirements.
Section 19.4 Strict Performance.
No failure by Owner or Developer to insist upon strict performance of any covenant,
agreement, term or condition of this Agreement or to exercise any right or remedy available to such
party by reason of the other party's default or an Event of Default, shall constitute a waiver of any
such Default or Event of Default or of such covenant, agreement, term or condition or of any other
covenant, agreement, term or condition. No covenant, agreement, term or condition of this
Agreement to be performed or complied with by either party, and no default by either party, shall
be waived, altered or modified except by a written instrument executed by the other party. No
waiver of any Default or Event of Default shall affect or alter this Agreement, but each and every
covenant, agreement, term and condition of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent Default. Developer's compliance with any
request or demand made by Owner shall not be deemed a waiver of Developer's right to contest the
validity of such request or demand.
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Section 19.5 Ri~ht to Eqjoin Defaults.
With respect to Development Disputes and all other disputes, in the event of Developer's
Default or an Event of Default, Owner shall be entitled to seek to enjoin the Default or Event of
Default and shall have the right to invoke any rights and remedies allowed at law or in equity or by
statute or otherwise, except to the extent Owner's remedies are expressly limited by the terms hereof.
With respect to Development Disputes and all other disputes, in the event of any default by Owner
of any term, covenant or condition under this Agreement, Developer shall be entitled to seek to
enjoin the default and shall have the right to invoke any rights and remedies allowed at law or in
equity or by statute or otherwise, except to the extent Developer's remedies are expressly limited by
the terms hereof. Each right and remedy of Owner and Developer provided for in this Agreement
shall be cumulative and shall be in addition to every other right or remedy provided for in this
Agreement or now or hereafter existing at law or in equity or by statute or otherwis~, except. to the
extent Owner's remedies and Developer's remedies are expressly limited by the terms hereof,' and .
the exercise or beginning of the exercise by Owner or Developer of anyone or more of the rights or
remedies provided for in this Agreement or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by Owner or Developer of any or
all other rights or remedies provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent Owner's remedies and Developer's remedies
are expressly limited by the terms hereof.
Section 19.6 Remedies under Ba.n.knwtcy and Insolvency Codes.
If an order for relief is entered or if any stay of proceeding or other act becomes effective
against Developer, Developer's Interest in the Premises, or Developer's interest in this Agreement,
or Owner, Owner's Interest in the Premises, or Owner's interest in the Agreement, as applicable, in
any proceeding which is commenced by or against Developer or Owner, as applicable, under the
present or any future Federal Bankruptcy Code or in a proceeding which is commenced by or against
Developer or Owner, as applicable, seeking a reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any other present or future applicable
federal, state or other bankruptcy or insolvency statute or law, Owner or Developer, as applicable,
shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or
insolvency code, statute or law or this Agreement (except to the extent Owner's remedies and
Developer's remedies are expressly limited by the terms hereof).
Section 19.7 Inspection.
Without in any way limiting Article 4 hereof, Owner and its representatives shall have the
right, upon twenty-four (24) hours prior notice to Developer, to enter upon the Project Site to
conduct inspections for the purpose of determining whether a Default or an Event of Default has
occurred, provided that Owner shall be accompanied by a representative of Developer and provided
further that such entry shall not unreasonably interfere with the Construction of the Project.
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Developer agrees to make a representative of Developer available to accompany Owner on any such
inspection.
ARTICLE 20.
NOTICES, CONSENTS AND APPROVALS
Section 20.1 Service of Notices and Other Communications.
(a) In Writin~. Whenever it is provided herein that notice, demand, request,
consent, approval or other communication shall or may be given to, or served upon, either of the
parties by the other (or any Recognized Mortgagee), or whenever either of the parties desires to give
or serve upon the other any notice, demand, request, consent, approval or other comrnunicatio,n ~th
respect hereto or to the Project Site, each such notice, demand, request, consent, approval or other .
communication (referred to in this Section 20.1 as a "Notice") shall be in writing (whether or not
so indicated elsewhere in this Agreement) and shall be effective for any purpose only if given or
served by (i) certified or registered U.S. Mail, postage prepaid, return receipt requested, (ii) personal
delivery with a signed receipt or (iii) a recognized national courier service, addressed as follows:
if to Developer:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
Suite 2040
701 Brickell Avenue
Miami, Florida 33131
Attention: R. Donahue Peebles, President
with a copy to:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
2600 Virginia Avenue, No., Suite 606
Washington, DC 20037
Attention: S.P. Newell, Executive Vice President
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and to:
Holland & Knight LLP
Thirtieth Floor
701 Brickell Avenue
Miami, Florida 33131
Attention: Stuart K. Hoffman, Esq.
if to Owner:
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
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
and with a copy to:
Bloom & Minsker
800 Brickell Avenue, Suite 1100
Miami, Florida 33131
Attention: Joel N. Minsker, P.A.
.'
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Any Notice may be given, in the manner provided in this Section 20.1, (x) on either party's behalf
by its attorneys designated by such party by Notice hereunder, and (y) at Developer's request, on its
behalf by any Recognized Mortgagee designated in such request.
(b) Effectiveness. Every Notice 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.
(c) References. All references in this Agreement to the "date" of Notice shall
mean the effective date, as provided in the preceding subsection (b).
Section 20.2 Consents and Ap.provals.
(a) Effect ofGrantin~ or Failure to Grant Approvals or Consents. All consents
and approvals which may be given under this Agreement shall, as a condition of their effectiveness,
be in writing. The granting by a party of any consent to or approval of any act requiring consent or
approval under the terms of this Agreement, or the failure on the part of a party to object to any such
action taken without the required consent or approval, shall not be deemed a waiver by the party
whose consent was required of its right to require such consent or approval for any other act.
(b) Standard. All consents and approvals which may be given by a party under
this Agreement shall not (whether or not so indicated elsewhere in this Agreement) be unreasonably
withheld or conditioned by such party and shall be given or denied within the time period provided,
and if no such time period has been provided, within a reasonable time. Upon disapproval of any
request for a consent or approval, the disapproving party shall, together with notice of such
disapP!oval, submit to the requesting party a written statement setting forth with specificity its
reasons for such disapproval.
(c) Deemed Approval. (i) If a party entitled to grant or deny its consent or
approval (the "Consenting Party") within the specified time period shall fail to do so, then, except
as otherwise provided in Section 20.2(c)(ii) below, and provided that the request for consent or
approval (and the envelope in which such request is transmitted to the extent permitted by the
carrier) bears the legend set forth below in capital letters and in a type size not less than that provided
below, the matter for which such consent or approval is requested shall be deemed consented to or
approved, as the case may be:
"FAILURE TO RESPOND TO THIS REQUEST WITHIN THE TIME
PERIOD PROVIDED IN THE HOTEL DEVELOPMENT AGREEMENT
BETWEEN MIAMI BEACH REDEVELOPMENT AGENCY AND RDP
ROYAL PALM HOTEL LIMITED PARTNERSHIP SHALL CONSTITUTE
AUTOMATIC APPROVAL OF THE MATTERS DESCRIBED HEREIN
WITH RESPECT TO SECTION [FILL IN APPLICABLE SECTION] OF
SUCH HOTEL DEVE.LOPMENT AGREEMENT."
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(ii) Notwithstanding anything to the contrary contained in Section
20.2(c)(i) above, if the Agency or the City shall be the "Owner" hereunder and the matter, other
than a matter referred to in Section 20.2(c)(iii) below, to be consented to or approved requires the
consideration of the Agency's board of directors and/or the City Commission, as applicable (whether
pursuant to Requirements or the written opinion of the City Attorney or the Agency's General
Counsel), then, provided Owner gives Developer notice of such requirement within the time period
provided for such consent or approval, such matter shall not be deemed approved or consented to
unless the Owner shall fail to respond to Developer's request by the date which is five (5) business
days after the first regular meeting of the Agency's board of directors (and/or of the City
Commission, as applicable) which occurs no earlier than ten (10) days following the receipt of such
request (or second request, as applicable); but in any event not later than sixty (60) days following
such request (or second request), as applicable.
(iii) Owner hereby agrees, for so long as the Agency or the CitY shail be
the "Owner" hereunder, that, subject to Requirements, the Executive Director of the Agency or the
City Manager, as applicable, shall be authorized to grant consents or approvals on behalf of the
Agency and/or City, as applicable, with respect to Section 2.1(c) and Article 3 and Article 7 of this
Agreement.
(iv) The foregoing provisions of this Subsection shall not be construed to
modify or otherwise affect a party's right to arbitrate or litigate, as applicable, the failure of a party
to act reasonably in granting or denying a request for consent or to timely respond to a request for
a consent, but such right to arbitrate or litigate, as applicable, shall not serve to delay the time period
within which a grant or denial of such request is required hereunder.
(d) Remedy for Refusal to Grant Consent or Approval. If, pursuant to the terms
of this Agreement, any consent or approval by Owner or Developer is alleged to have been
unreasonably withheld, conditioned or delayed, then any dispute as to whether such consent or
approval has been unreasonably withheld, conditioned or delayed shall be settled by arbitration or
litigation, as applicable. In the event there shall be a final determination that the consent or approval
was unreasonably withheld, conditioned or delayed so that the consent or approval should have been
granted, the consent or approval shall be deemed granted and the party requesting such consent or
approval shall be entitled to any and all damages resulting therefrom, subject to the limitations
provided in this Agreement.
(e) No Fees_ etc. Except as specifically provided herein, no fees or charges of any
kind or amount shall be required by either party hereto as a condition of the grant of any consent or
approval which may be required under this Agreement (provided that the foregoing shall not be
deemed in any way to limit Owner acting in its governmental, as distinct from its proprietary,
capacity from charging governmental fees on a nondiscriminatory basis).
."
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050
Section 20.3 Notice of Detailed Plans.
Notwithstanding anything to the contrary contained in this Agreement (including without
limitation Articles 3, 4 and 20):
(a) Copies of the Detailed Plans shall be submitted solely to Owner's Consultant.
(b) Copies of all Notices to Owner pursuant to Sections 3, 4 and 5 of this
Agreement (whether or not such Notice includes Detailed Plans) shall be distributed to Owner's
Consultant.
ARTICLE 21.
FINANCIAL REPORTS AND RECORDS
Section 21.1 Books and Records: Audit Ri~hts.
(a) Developer shall at all times during the Term keep and maintain (separate from
any of Developer's other books, records and accounts), accurate and complete records pertaining to
the construction of the Hotel and such other matters referenced in this Agreement, in accordance
with the Accounting Principles with such exceptions as may be provided for in this Agreement.
Owner and its representatives shall have, during normal business hours and upon reasonable advance
notice, access to the books and records of Developer pertaining to the Hotel for the purpose of
examination and audit (including copying), including books of account properly reflecting the
construction of the Hotel.
(b) The obligations of Developer under this Article to maintain, and to provide
the Owner and its representatives access to, the books and records related to the Hotel shall survive
the expiration of this Agreement for a period of seven (7) years.
(c) The right of Owner to audit the books and records of Developer pertaining
to the Hotel, including, without limitation, the books of account regarding the Construction Work,
shall be governed by the provisions of Article 28 of the Ground Lease as if such books and records
were specifically described in such Article 28 as being part of the "books and records" described in
such Article 28; provided, however, copying of all such "books and records" shall specifically be
allowed.
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051.
ARTICLE 22.
ARBITRATION
Section 22.1 Expedited Arbitration of Development Disputes.
(a) If Developer or Owner asserts that a Development Dispute has arisen, such
asserting party shall give prompt written notice thereof to the other party and to the Development
Arbitrator.
(b) The Development Arbitrator shall no later than five (5) business days after
receipt of such notice, hold a preliminary, informal meeting with Owner and Developer in an attempt
to mediate such Development Dispute. If such Development Dispute shall not be resolved at. .tbat
meeting, the Development Arbitrator shall at such mediation meeting establish a date, not earlier
than five (5) business days after the mediation hearing nor later than twenty (20) business days after
the mediation hearing for a hearing (a "Hearing") to be held in accordance with this Agreement to
resolve such Development Dispute.
(c) Developer and Owner shall have the right to make one (1) written submission
to the Development Arbitrator prior to any Hearing. Such submission shall be received by the
Development Arbitrator and the other party not later than two (2) business days prior to the Hearing
Date. The parties agree that no discovery (as the term is commonly construed in litigation
proceedings) will be needed and agree that neither party nor the Development Arbitrator shall have
discovery rights in connection with a Development Dispute.
(d) Each Hearing shall be conducted by the Development Arbitrator. It is the
intention of the parties that the Hearings shall be conducted in an informal and expeditious manner.
No transcript or recording shall be made. Each party shall have the opportunity to make a brief
statement and to present documentary and other support for its position, which may include the
testimony of not more than four (4) individuals, two (2) of whom may be outside experts. There
shall be no presumption in favor of either party's position. Any procedural matter not covered herein
shall be governed by the Amended 1993 edition of the CPR Rules for the Arbitration of Business
Disputes and the Florida Arbitration Code to the extent not inconsistent with the CPR Rules and this
Section 22.1.
(e) The Hearings shall be held in a location selected by the Development
Arbitrator in Dade County, Florida. Provided the Development Arbitrator is accompanied by
representatives of both Developer and Owner, the Development Arbitrator may, at its option, visit
the work site to make an independent review in connection with any Development Dispute.
(f) (i) Once it has been determined by the Development Arbitrator or by
agreement of the parties with. respect to any Development Dispute that Developer's proposed
modifications are material with regard to, or materially inconsistent with, the Preliminary Plans and
A:\JNM\CMB\HTLDEV A.14(EXECUTION.I )\1 0-16-97
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052
Specifications or the Plans or Specifications pursuant to Section 3.1 or 3.2, respectively, or (ii) in
the case of a Dispute concerning whether Owner has unreasonably failed or has not been given the
opportunity to approve or consent to a change order under Section 3.5(b), the Development
Arbitrator shall take into account, in determining whether Owner has acted unreasonably in failing
to grant an approval or consent as described in Section 3.7(b) or Section 3.7(c), or in determining
whether the change order is subject to Owner's approval or consent under Section 3.7(d), such
factors as he deems relevant which are not inconsistent with this Agreement (including items 1
through 7, below), which in all events shall include the following factors:
1. The Owner does not have any approval rights with respect to the
matter of interior design and decor of the Hotel except to the extent the same is reflected in the
Preliminary Plans and Specifications or pursuant to Section 3.5(b).
2. The Hotel shall be a first class hotel at a quality compatible with the
quality set forth in the original approved Preliminary Plans and Specifications or the original
approved Plans and Specifications (without regard to changes thereto).
3. The mutual goal of Developer and Owner that Hotel Construction
Costs overruns shall be minimized.
4. The mutual goal of Developer and Owner that the Construction of the
Project be completed within approximately eighteen (18) months from the Commencement of
Construction, but in no event later than the Completion Deadline.
5. Applicability of any Requirement.
6. The magnitude of the modification to the previously approved
Preliminary Plans and Specifications or Plans and Specifications, as applicable.
7. The magnitude of the consistency or inconsistency from the previously
approved Preliminary Plans and Specifications or Plans and Specifications, as applicable.
(g) Pending resolution of the Development Dispute, Developer may not
implement the matter which is the subject of such Development Dispute.
(h) The Development Arbitrator shall render a decision, in writing, as to any
Development Dispute not later than two (2) business days following the conclusion of the Hearings
regarding such Development Dispute and shall provide a brief written basis for its decision not later
than five (5) business days thereafter. As to each Development Dispute, the Development
Arbitrator's decision shall be limited to: (i) whether or not Developer's proposed modification(s) to
the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1(b)
or 3.2(a) or (b), respectively, is.material, (ii) whether or not Developer's proposed modification(s)
to the Preliminary Plans and Specifications or the Plans or Specifications pursuant to Section 3.1(b)
A:\JNM\CMB\HTLDEV A.14(EXECUTION.1 )\1 0-16-97
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053
or 3.2(a) or (b), respectively, is materially inconsistent, (iii) whether or not Owner has unreasonably
failed to approve or give its consent to any modifications to the Preliminary Plans or Specifications
pursuant to Section 3.1(b), or the Plans and Specifications pursuant to Section 3.2(a) or (b); (iv)
whether or not Owner unreasonably failed to approve or consent to a change order as to which
Owner has approval rights pursuant to Section 3.4((b); and/or (v) whether or not Developer failed
to obtain Owner's consent to a change order to which Owner has approval rights pursuant to Section
3.4(b). The Development Arbitrator may not award any other or different relief.
(i) The decision of the Development Arbitrator shall be final and binding on the
parties for all purposes and may be entered in any court of competent jurisdiction.
The Owner and Developer hereby designate Jan A. de Roos, Ph.D., Development
Arbitrator with regard to all Development Disputes which shall arise. Contemporaneously wj~ t!te
execution of this Agreement, such individual has acknowledged in writing its agreement to serve as
the Development Arbitrator. If for any reason such individual shall be unwilling to act as
Development Arbitrator, then the Owner and Developer hereby designate Mr. Niel Grondahl, to
serve in its place. If for any reason both such individuals shall be unwilling to act as Development
Arbitrator, then the parties shall cooperate to select an independent, neutral, professional firm having
hotel development or construction experience to serve as the Development Arbitrator. If the parties
cannot agree, then any party may ask the CPR Institute for Dispute Resolution to select a substitute
who will act as Development Arbitrator of that Development Dispute.
Neither Developer (together with its Affiliates engaged in the hotel business) nor
Owner shall hire or otherwise engage the Development Arbitrator until twelve (12) months after
final c~mpletion of the Construction of the Project pursuant to Section 2.3 above.
Section 22.2 Liti~ation.
Any dispute between the parties, other than a Development Dispute, shall be subject to
litigation and not arbitration.
ARTICLE 23.
[RESERVED]
ARTICLE 24.
INVESTIGATIONS, ETC.
Section 24.1 Cooperation in Investi~ations.
To the extent required by Requirements, Developer shall cooperate fully and faithfully with
any investigation, audit or inquiry conducted by any Governmental Authority that is empowered
A:\JNM\CMB\HTLDEV A.14(EXECUTJON.I)\ 1 0-16-97
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054
directly or by designation to compel the attendance of witnesses and to examine witnesses under
oath, or conducted by a Governmental Authority that is a party in interest to the transaction,
submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the
investigation, audit or inquiry. In addition, Developer shall promptly report in writing to the City
Attorney of the City of Miami Beach, Florida any solicitation, of which Developer's officers or
directors have knowledge, of money, goods, requests for future employment or other benefit or thing
of value, by or on behalf of any employee of the Owner, City or other Person relating to the
procurement or obtaining of this Agreement by the Developer or affecting the performance of this
Agreement.
ARTICLE 25.
HAZARDOUSMATE~S
Section 25.1 General Provision.
The provisions of Article 35 of the Ground Lease shall be applicable to this Agreement as
if the references in such Article 35 to "Owner", "Tenant" and the "Premises" were references to
Owner, Developer and the Project Site, respectively.
Section 25.2 Survival.
The provisions of this Article 25 shall survive the expiration or sooner termination of this
Agreement.
ARTICLE 26.
MISCELLANEOUS
Section 26.1 Governin~ Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Florida, both substantive and remedial, without regard to principles of conflict of laws.
The exclusive venue for any litigation arising out of this Agreement shall be Dade County, Florida,
if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. The
exclusive venue for any expedited arbitration arising out of this Agreement shall be as specified in
Article 22 herein.
Section 26.2 References.
(a) Captions. The captions of this Agreement are for the purpose of convenience
of reference only, and in no way define, limit or describe the scope or intent of this Agreement or
in any way affect this Agreement.
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oss
(b) Table of Contents. The Table of Contents is for the purpose of convenience
of reference only, and is not to be deemed or construed in any way as part of this Agreement.
(c) Reference to Owner and Developer. The use herein of the neuter pronoun in
any reference to Owner or Developer shall be deemed to include any individual Owner or Developer,
and the use herein of the words "successors and assigns" or "successors or assigns" of Owner or
Developer shall be deemed to include the heirs, legal representatives and assigns of any individual
Owner or Developer.
(d) Owner's and City's Governmental Capacity. Nothing in this Agreement or
in the parties' acts or omissions in connection herewith shall be deemed in any manner to waive,
impair, limit or otherwise affect the authority of the Owner or City in the discharge of its police or
governmental power.
(e) Reference to "herein". "hereunder". etc. 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, Section or Article within which such term is located.
(f) Reference to "Approval" or "Consent". etc. All references in this Agreement
to the terms "approval", "consent" and words of similar import shall mean "reasonable written
approval" or "reasonable written consent" except where specifically provided otherwise.
Section 26.3 Entire A~reement. etc.
. (a) Entire A~reement. This Agreement, together with the attachments hereto,
contains all of the promises, agreements, conditions, inducements and understandings between
Owner and Developer concerning the development and construction of the Hotel on the Project Site
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 and in such attachments thereto or as may be expressly contained in any enforceable written
agreements or instruments executed simultaneously herewith by the parties hereto. Notwithstanding
anything to the contrary set forth in this Agreement, the terms of this Agreement shall supersede the
terms of the Letter of Intent and the RFP and Developer's response thereto. This Agreement may
be executed in counterparts, each of which shall be deemed an original but all of which together shall
represent one instrument.
(b) Waiver. Modification. etc. 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 Owner and Developer. No
waiver of any Default or default shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and effect with respect
to any other then existing or subsequent Default or default thereof.
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056
(c) Effect of Other Transactions. No Mortgage, whether executed simultaneously
with this Agreement or otherwise, and whether or not consented to by Owner, shall be deemed to
modify this Agreement in any respect, and in the event of an inconsistency or conflict between this
Agreement and any such instrument, this Agreement shall control.
Section 26.4 Invalidity of Certain Provisions.
If any provision of this Agreement or the application thereof to any Person or circumstances
is, to any extent, finally determined by a court 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 not be
affected thereby and each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
Section 26.5 Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be cumulative and
shall be in addition to every other right or remedy provided for in this Agreement, or now or
hereafter existing at law or in equity or by statute or otherwise (except as otherwise expressly limited
by the terms of this Agreement), and the exercise or beginning of the exercise by a party of anyone
or more of the rights or remedies provided for in this Agreement, or now or hereafter existing at law
or in equity or by statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by sta?1te or otherwise (except as otherwise expressly limited by the terms of this Agreement).
Section 26.6 Performance at Each Party's Sole Cost and Expense.
Unless otherwise expressly provided in this Agreement, when either party exercises any of
its rights, or renders or performs any of its obligations hereunder, such party shall do so at its sole
cost and expense.
Section 26.7 Reco~nized Mort2a~ee Char~es and Fees.
Developer shall pay any and all fees, charges and expenses owing to a Recognized
Mortgagee in connection with any services rendered by it as a depositary pursuant to the provisions
of this Agreement.
Section 26.8 Intentionally Deleted.
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057
Section 26.9 Successors and Assi~ns.
The agreements, terms, covenants and conditions herein shall be binding upon, and inure to
the benefit of, Owner and Developer, and, except as otherwise provided herein, their respective
successors and permitted assigns. If, while Agency is the Owner hereunder, the Agency shall cease
to exist, the City, by its signature hereto, hereby agrees to be bound with respect to all ofthe terms,
covenants and conditions of Owner hereunder and Developer agrees to recognize the City as Owner
hereunder. There can be no assignment by Developer of its rights or obligations hereunder or its
interest in this Agreement, except Developer may assign all its rights hereunder to a Recognized
Mortgagee as security for the performance of Developer's obligations under the Loan Documents.
This Agreement, however, shall automatically transfer in connection with a transfer of Developer's
(as Tenant) interest in the Ground Lease in accordance with the provisions of the Ground Lease.
Section 26.10 Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Agreement, under no circumstances
shall any party to this Agreement lose any right or benefit granted under this Agreement or suffer
any harm as a result of the occurrence of any Default or default of such party as to which Default or
default such party has not received notice thereof from the other party.
Section 26.11 No Representations.
Owner and City have made no representations herein as to the condition of the Project Site.
. Section 26.12 Cox:porate Obli~ations.
It is expressly understood that this Agreement and obligations issued hereunder are solely
corporate obligations, and, except as otherwise provided in Article 15 and in the Completion
Guarantee of even date herewith, that no personal liability will attach to, or is or shall be incurred
by, the incorporators, stockholders, officers, directors, elected or appointed officials (including,
without limitation, the Chairman and Members of the Owner and the members of any other
governing body of Owner) or employees, as such, ofthe Owner or Developer, or of any successor
corporation, or any of them, under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom; and, except as otherwise provided in Article 15
and in the Completion Guarantee of even date herewith, that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer, director, elected or appointed officials
(including, without limitation, the Chairman and Members of the Owner and the members of any
other governing body of Owner) or employee, as such, or under or by reason of the obligations,
covenants or agreements contained in this Agreement or implied therefrom are expressly waived and
released as a condition of, and as a consideration for, the execution of this Agreement.
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058
Section 26.13 Nonliability of Officials and Employees.
Except as otherwise provided in Article 15, no member, official or employee of the Owner
or the City shall be personally liable to the Developer, or any successor in interest, in the event of
any default or breach by the Owner or for any amount or obligation which may become due to the
Developer or successor under the terms of this Agreement; and, except as otherwise provided in
Article 15, any and all such personal liability, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against, every such Person, under or by reason
of the obligations, covenants or agreements contained in this Agreement or implied therefrom are
expressly waived and released as a condition of, and as a consideration for, the execution of this
Agreement.
Section 26.14 Partnership Disclaimer.
Developer acknowledges, represents and confirms that it is an independent contractor in the
performance of all activities, functions, duties and obligations pursuant to this Agreement.
The parties hereby acknowledge that it is not their intention to create between themselves a
partnership, joint venture, tenancy-in-common, joint tenancy, co-ownership or agency relationship
for the purpose of developing the Hotel, or for any other purpose whatsoever. Accordingly,
notwithstanding any expressions or provisions contained herein, nothing in this Agreement, the
Ground Lease or the other documents executed by the parties with respect to the Hotel shall be
construed or deemed to create, or to express an intent to create, a partnership, joint venture, tenancy-
in-common, joint tenancy, co-ownership or agency relationship of any kind or nature whatsoever
betwe~n the parties hereto. The provisions of this Section 26.14 shall survive expiration of this
Agreement.
Section 26.15 Time Periods.
Any time periods in this Agreement of less than thirty (30) days shall be deemed to be
computed based on business days (regardless of whether any such time period is already designated
as being computed based on business days). In addition, any time period which shall end on a day
other than a Business Day shall be deemed to extend to the next Business Day.
Section 26.16 No Third Party Ri2hts.
Nothing in this Agreement, express or implied, shall confer upon any Person, other than the
parties hereto and their respective successors and assigns, any rights or remedies under or by reason
of this Agreement; provided, however, that a Recognized Mortgagee or its Designee (as such term
is defined in the Ground Lease) shall be third party beneficiaries hereunder to the extent same are
granted rights hereunder.
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059
Section 26.17 No Conflict of Interest.
Developer represents and warrants that, to the best of its actual knowledge, no member,
official or employee of Owner or the City has any direct or indirect financial interest in this
Agreement nor has participated in any decision relating to this Agreement that is prohibited by law.
Developer represents and warrants that, to the best of its knowledge, no officer, agent, employee or
representative of the City or Owner has received any payment or other consideration for the making
of this Agreement, directly or indirectly, from Developer. Developer represents and warrants that
it has not been paid or given, and will not payor give, any third person any money or other
consideration for obtaining this Agreement, other than normal costs of conducting business and costs
of professional services such as architects, engineers, and attorneys. Developer acknowledges that
Owner is relying upon the foregoing representations and warranties in entering into this Agreement
and would not enter into this Agreement absent the same.
EXECUTION
IN WITNESS WHEREOF, Owner and Developer, intending to be legally bound, have
executed this Agreement as of the day and year first above written.
WITNESSES: MIAMI BE~CH REDEVELOPMENT A~ENCY
~ on--- By: e-' /1 ~ 'c ~)} j Iv..
Print Name: ...~ {,.~:XAi<J# r. --rhC"HfrJl-'g Seymour Geibel:
c~i1m '
",0.
~
~ ~~
G-- -':
~~
-".' - -
::- :rj:
. .....'
_: [SEAL]. -".~. .
'~"<: .,:'~< : '.l'~~\ ~
'WITNESSES:
(JP/?~~~
Pnnt Name v \'2 1"\ ~Jt>(
~,
( ~ ,;.)
A:\JNM\CMB\HTLDEV A. 14(EXECUTION. 1)\ 10-16-97
ATTEST:
By:JSOl0t~ p~
Robert Parcher,
Secretary
RDP ROYAL PALM HOTEL
LIMITED PARTNERSHIP,
a Florida limited partnership
By: PADC HOSPITALITY CORPORATION I,
a Florida corporation, as Ge ral Partner
53
APPROVED AS 10
fORM & lANGUAGE
& FOR EXecunON
/Ui ~ i'()/;~rn
Redevalopment Au I Date
~.I'\"!,"' Coon_I
060
The City is executing this Agreement for the sole purpose of Section 6.4 herein.
WITNESS:
p~~ ::r . -(l\<'tbI1e<J
~~~~
Print Name: '/ft~AJ(!tF ~
[SEALJ...,
..,} ...
.,'.'2.,"\
_0
. ,-
.'
',Y
~ ,'. i , .~
'J '-':' . .... "
"'~,. · 2, " ~
-,f'!'l "\; .\,'
'f:o,H"..
.'
A:\JNM\CMB\HTLDEV A.14(EXECUTION.1 )\1 0-16-97
..,
CITY OF MIAMI BEACH I f
I \ 'I
: \ '1 /J
0,'(/ ~ J ~' ,"-i
By: '_ '1.,~ J C
Seymour Gelber,
./ Mayor ;
A1
.~~
By: tJ luA(
obert Parcher,
Secretary
f cwck
APPROVED }.S TO
FORM & LANGUAGE
& fOR EXECUTION
1Ai~ /Of/fJ.tj)
54
061
Exhibit A
LAND
RP LAND
The South 12.65 feet (measured along the lot line) of Lots 7 and 14, all of Lots 6
and 15 and the North 10.7 feet (measured along the lot line) of Lots 5 and 16, all
in Block 56, of FISHER'S FIRST SUBDMSION OF ALTON BEACH, according
to the plat thereof, as recorded in Plat Book 2, at Page 77, of the Public Records
of Dade County, Florida, together with that certain parcel of land lying East and
adjacent to the above described parcel; said parcel bounded on the South by the
South line of the above described parcel extended Easterly; bounded on the North -
by the North line of the above described parcel extended Easterly; bounded on the
East by the Erosion Control Line of the Atlantic Ocean and bounded on the West
by the East line of the above mentioned Block 56.
SHORECREST LAND
The South 40.00 feet (measured along the lot line) of Lots 5 and 16 and the North
one-half of Lots 4 and 17, all in Block 56, of FISHER'S FIRST SUBDMSION
OF ALTON BEACH, according to the plat thereof, as recorded in Plat Book 2,
at Page 77, of the Public Records of Dade County, Florida, together with that
certain parcel of land lying East and adjacent to the above described parcel; said
parcel bounded on the South by the South line of the above described parcel
. extended Easterly; bounded on the North by the North line of the above described
parcel extended Easterly; bounded on the East by the Erosion Control Line of the
Atlantic Ocean and bounded on the West by the East line of the above mentioned
Block 56.
All lands described above located, lying and being in Section 34, Township 53 South, Range 42
East, in the City of Miami Beach, Dade County, Florida.
.'
A:\JNM\CMB\HTLDEV A.14(EXECUTION.1 )\1 0-16-97
062
55
Exhibit 2.1(d)
COMPLETION GUARANTEE
This COMPLETION GUARANTEE (the "Guarantee") is made as of the _ day of
, 1997, by R. DONAHUE PEEBLES, a resident of Dade County, Florida,
individually (the "Guarantor"), in favor of MIAMI BEACH REDEVELOPMENT AGENCY,
a public body corporate and politic (the "Agency" or the "Owner"), and the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation ofthe State of Florida (the "City").
RECITALS:
A. The Agenc.y is contemporaneously herewith entering into that certain Agreement of
Lease (the "Ground Lease"), dated as of the date hereof, between the Agency, as Qwner, ~d RDP
Royal Palm Hotel Limited Partnership, a Florida limited partnership, as Tenant, pursuant to which .
Developer (hereinafter defined) has agreed to lease the Land (as defined in the Ground Lease) on
which the Hotel (as defined in the Ground Lease) will be constructed.
B. The Agency is also contemporaneously herewith entering into that certain Hotel
Development Agreement (the "Hotel Development Agreement"), dated as of the date hereof,
between the Agency, as Owner, and RDP Royal Palm Hotel Limited Partnership, a Florida limited
partnership, (the "Developer"), as Developer.
C. The Agency previously entered into at certain Garage Development Agreement (the
"Garage Development Agreement"), dated as of September 20, 1996, between the Agency, and
St. Moritz Hotel Corp., Inc., a Florida corporation ("SMHC"), in order to document the respective
rights and obligations of Owner and SMHC relating to the design, development and construction of
the "Project", as defined in the Garage Development Agreement (including the Roadway Extension
(as defined in the Ground Lease), the "Garage Project").
D. Pursuant to the Ground Lease and the Hotel Development Agreement, Developer will
be required to develop, construct, furnish and equip the Hotel in accordance with the terms thereof.
In consideration of the foregoing premises and for other good and valuable consideration the
receipt and legal sufficiency of which is hereby acknowledged, Guarantor hereby agrees for the
benefit of the Agency and the City as follows:
1. Capitalized terms defined and used herein are used herein with the meanings assigned
herein to such terms. Unless the context otherwise requires, capitalized terms which are used herein
without definition and which are defined in the Hotel Development Agreement, are used herein with
the meaning assigned to such capitalized terms in the Hotel Development Agreement.
2. Provided that the Owner is not in default (beyond any applicable notice and cure
period) of any of the terms, c'ovenants, conditions or obligations under Section 6.1 of the Hotel
Development Agreement or under Section 21.1 of the Ground Lease, Guarantor hereby absolutely,
063
56
irrevocably, continuously and unconditionally, guarantees to the Agency and the City the
performance of the obligations of Developer to Finally Complete the Project (as hereinafter defined
in this Section 2) by the Completion Deadline. Notwithstanding anything to the contrary contained
in this Guarantee or the Hotel Development Agreement, the Project shall be deemed "Finally
Complete" for the purpose of this Guarantee if (i) the Project shall have been finally completed in
accordance with the Plans and Specifications, as certified by the Architect, and (ii) all of the
Improvements in the Project shall have been issued Final COs (as such term is defined in the Ground
Lease); provided, however, that to the extent the reason such Final COs shall not have been issued
is due to the Owner's failure to substantially complete the Garage Project, which includes, but is not
limited to, the issuance by the applicable governmental authority of a temporary certificate of
occupancy or completion or a certificate of occupancy or completion for the Garage Project so that
Owner can occupy and use the Garage Project for its intended purpose and provide Developer with
the "Easement" for the number of "Parking Spaces" in the "Facility," (as such terms are aefined.
in that certain Garage Easement Agreement dated as of the date hereof between Owner and
Developer), to which the Tenant is entitled pursuant to the Garage Easement Agreement, then this
clause (ii) shall be deemed satisfied. The obligations being guaranteed by Guarantor pursuant to this
Section 2, are hereinafter collectively referred to as the "Completion Obligation".
3. If the Completion Obligation is not performed by Developer by the Completion
Deadline, then, upon demand of the Agency or the City, Guarantor shall perform the Completion
Obligation in accordance with this Guarantee. The Agency and the City agree to accept performance
by the Guarantor of all or any of the covenants, conditions or agreements on the Developer's part
to be performed under the Hotel Development Agreement with the same force and effect as though
performed by the Developer thereunder.
4. Guarantor shall not be deemed to have failed to perform his obligations under Section
2 hereof until Guarantor shall have failed to perform the Completion Obligation within the cure
period provided to Developer under the Hotel Development Agreement and all cure periods provided
to Guarantor shall run concurrently with the cure periods provided to Developer under the Hotel
Development Agreement.
5. Guarantor expressly agrees that the Agency or the City, as the case may be, may, in
its sole and absolute discretion, without notice to or further assent of Guarantor and without in any
way releasing, affecting or impairing the obligations and liabilities of Guarantor hereunder: (a) waive
compliance with, or any default under, or grant any other indulgences with respect to the Hotel
Development Agreement; (b) modify, amend or change any provision of the Hotel Development
Agreement, or effect any release, compromise or settlement in connection therewith; or (c) assign
its entire interest in this Guarantee and the Hotel Development Agreement to the City or any
instrumentality of the Agency or, in accordance with the Ground Lease, any other Person, or the City
which succeeds to the rights of the Agency under the Ground Lease in accordance with the terms
thereof. Notwithstanding the foregoing, (i) Guarantor's obligations and liabilities hereunder shall
be deemed to be released, affected or impaired to the extent that Developer's obligations and
liabilities under the Hotel Development Agreement are so waived modified amended changed
, , , ,
2
064
57
released, compromised, settled or in any other way altered, and (ii) no amendment or modification
to the Hotel Development Agreement which increases the liability of Developer thereunder shall be
made without the express consent of the Guarantor.
6. Except as otherwise expressly set forth in Section 2 and the last sentence of Section
5 of this Guarantee, the obligations of Guarantor under this Guarantee shall be unconditional,
absolute, continuing and irrevocable, irrespective of the genuineness, validity, regularity or
enforceability of the Hotel Development Agreement or any security which may have been given
therefor or in connection therewith or any other circumstances which might otherwise constitute a
legal or equitable discharge of a surety or guarantor. This Guarantee and the obligations of the
Guarantor hereunder shall not be affected, impaired, modified or released by reason of (a) the
making by Developer, any Affiliate of Developer or Guarantor of any assignment for the benefit of
creditors or the bankruptcy or insolvency of Developer, any Affiliate of Developer or Guarant-or;(b).
any action taken by Developer, any Affiliate of Developer or Guarantor in any bankruptcy or
insolvency proceeding, including, without limitation, disaffirmance of the Hotel Development
Agreement or the Ground Lease, (c) any default by Developer under the Hotel Development
Agreement or the Ground Lease, (d) the liquidation or dissolution of Developer, any Affiliate of
Developer or Guarantor, (e) any change in or termination of the Guarantor's ownership interest in
Developer, (f) the enforcement by the Agency or the City of any of its rights under the Hotel
Development Agreement or the Ground Lease, or (g) the sale, conveyance, transfer or assignment
by Developer of all or any portion of its interest under the Hotel Development Agreement or the
Ground Lease; it being agreed that in the event of any of the foregoing, the liability of the Guarantor
hereunder shall continue hereunder as if such event had not occurred. Guarantor understands that
the Hotel may be refinanced from time to time and agrees that such refinancings shall not affect his
obligations hereunder, regardless of the amount of such refinancings.
7. Except as otherwise expressly set forth in Section 2 and the last sentence of Section
5 of this Guarantee, the liability of Guarantor under this Guarantee shall be primary, direct and
immediate, and not conditional or contingent upon pursuit by the Agency or the City of any remedies
Guarantor may have against Developer or any other Person with respect to the Hotel Deveiopment
Agreement, any of the Project Agreements (as such term is defined in the Ground Lease), or any
other agreement, whether pursuant to the terms thereof or by law or pursuant to any other security
agreement or guaranty. Guarantor and the Agency each acknowledge and agree that this Guarantee
is a guarantee of performance in respect of the Completion Obligation. Anyone or more successive
or concurrent actions may be brought hereon against Guarantor with respect to the Completion
Obligation, either in the same action or proceeding, if any, brought against Developer or any other
Person, or in separate actions as often as the Agency or the City, in its sole discretion, may deem
advisable. Guarantor may be joined in any action against Developer in connection with the Hotel
Development Agreement solely with respect to the Completion Obligation. With respect to the
Completion Obligation, recovery may be had against Guarantor in such action or in any independent
action against Guarantor without the Agency or the City first pursuing or exhausting any remedy or
claim against Developer or any other Person, as the case may be, or their respective successors or
assigns. Until termination of this Guarantee in accordance with the provisions hereof, the liability
3
065
58
of Guarantor under this Guarantee shall continue after (i) any assignment or transfer by Developer,
or any subsequent developer under the Hotel Development Agreement, of its interest under the Hotel
Development Agreement or (ii) any assignment or transfer by Developer, or any subsequent tenant
under the Ground Lease, of its interest under the Ground Lease.
8. (a) Except as otherwise expressly set forth in this Guarantee, Guarantor hereby
expressly waives: (a) presentment and demand for payment and protest of non-payment; (b) notice
of acceptance of this Guarantee and of presentment, demand and protest; (c) notice of all indulgences
under the Hotel Development Agreement or the Ground Lease; (d) demand for observance or
performance of, or enforcement of, any terms and provisions of this Guarantee or the Hotel
Development Agreement or the Ground Lease; and ( e) all other notices and demands otherwise
required by law which Guarantor may lawfully waive.
(b) WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, THE GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES THAT:
(i) NEITHER GUARANTOR, NOR ANY ASSIGNEE, SUCCESSOR, HEIR, OR
LEGAL REPRESENTATIVE OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN ANY
LA WSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
ARISING FROM OR BASED UPON THIS GUARANTY OR ANY OF THE OBLIGATIONS
WHICH ARE SECURED HEREBY, OR THE DEALINGS OR RELATIONSHIP BETWEEN OR
AMONG THE PARTIES HERETO;
(ii) NEITHER GUARANTOR, NOR THE AGENCY OR THE CITY WILL SEEK
TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED,
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE
WAIVED;
(iii) THE PROVISIONS OF THIS PARAGRAPH HA VE BEEN FULLY
NEGOTIA TED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL HAVE NO
EXCEPTIONS. THE PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE EACH BEEN
REPRESENTED BY COUNSEL IN SUCH NEGOTIATION.
(iv) NEITHER THE GUARANTOR, THE AGENCY, NOR THE CITY HAS IN
ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION 8(b) WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES; AND
(v) THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENCY TO
ENTER INTO THE GROUND LEASE AND THE HOTEL DEVELOPMENT AGREEMENT.
9. Guarantor shall not enforce any right of subrogation he may now or hereafter have
against Developer by reason of any payments or acts of performance by Guarantor in compliance
4
066
59
with the obligations of Guarantor hereunder, and Guarantor shall not enforce any remedy which
Guarantor now or hereafter shall have against Developer by reason of anyone or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder unless and until all
of the obligations of Guarantor hereunder have been fully discharged, performed and satisfied,
whereupon Guarantor shall have such subrogation rights as may be allowed under applicable law.
10. No setoff, counterclaim or crossclaim, reduction or diminution of an obligation or any
defense of any kind or nature (other than performance of the Completion Obligation) shall be
available to Guarantor in any action or proceeding brought by Owner to enforce the Completion
Obligation; provided, however, that the foregoing shall not be deemed a waiver of the right of
Guarantor to assert any compulsory counterclaim arising from a claim brought by Owner hereunder,
nor shall the foregoing be deemed a waiver of or prejudice in any manner whatsoever, of Guarantor's
right to assert any claim which constitutes a defense, setoff, counterclaim or crosschiim of an}' nature.
whatsoever against Owner in any separate action or proceeding. Guarantor agree that if at any time
all or any part of any amounts at. any time received by the Agency or the City from Developer,
Guarantor, any Affiliate of Developer or Guarantor, or any other Person, as the case may be, for or
with respect to the Completion Obligations are or must be rescinded or returned by the Agency by
reason of any judgment or decree of any court having jurisdiction (including, without limitation, by
reason of the insolvency, bankruptcy or reorganization of Developer, Guarantor, any Affiliate of
Developer or Guarantor, or any other Person), then Guarantor's obligations hereunder shall, to the
extent of the amount rescinded or restored, be deemed to have continued in existence
notwithstanding such previous receipt by the Agency or the City and the obligation guaranteed
hereunder which was to have been discharged by such rescinded or restored amount shall continue
to be effective or reinstated, as the case may be, to the extent of such amount, whether or not this
Guar.antee has terminated, and the obligations of the Guarantor in this sentence shall survive the
termination hereof.
11. The rights and remedies afforded to the Agency and the City in this Guarantee are
cumulative and are not exclusive of any other right or remedy against Guarantor or any other Person
provided by law, in equity or under any other agreement or instrument and all such rights and
remedies may be exercised singly or concurrently. No delay or omission by the Agency or the City
in exercising any such right or remedy shall operate as a waiver thereof. No waiver of any right or
remedy hereunder shall be deemed made by the Agency or the City unless in writing and shall apply
only to the particular instance specified therein and shall not impair the further exercise of such right
or remedy or of any other right or remedy of the Agency or the City, and no single or partial exercise
of any right or remedy hereunder shall preclude any other or further exercise thereof or of any other
right or remedy.
12. If any provision of this Guarantee or any portion thereof is declared or found by a
court of competent jurisdiction to be unenforceable or null and void, such provision or portion
thereof shall be deemed stricken and severed from this Guarantee, and the remaining provisions and
portions thereof shall continue- in full force and effect.
5
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60
13. This Guarantee shall inure solely to the benefit ofthe Agency and the City, or any
instrumentality of the Agency or the City or any other Person which succeeds to the rights of the
Agency or the City under the Ground Lease and in accordance with the terms thereof, and shall be
binding solely upon Guarantor, his successors, assigns, heirs, administrators and personal
representatives.
14. This Guarantee shall be governed by and construed in accordance with the laws of
the State of Florida (without regard to principles of conflicts oflaw) applicable to agreements made
and to be wholly performed within the State of Florida.
15. This Guarantee shall constitute the entire agreement of Guarantor with the Agency
and the City with respect to the subject matter hereof. This Guarantee may not be modified or
amended, except by an agreement in writing executed by all of the parties hereto.-
16. In 'order to induce the Agency and the City to enter into this Guarantee, Guarantor
represents and warrants to the Agency and the City that as of the date hereof:
(i) This Guarantee constitutes a valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms (subject to any
bankruptcy, insolvency, reorganization, receivership, moratorium or similar
laws affecting the rights and remedies of creditors generally, and subject to
the effect of general principles of equity, whether applied by a court of law
or equity);
(ii) Guarantor's execution and performance of this Guarantee will not result in
a breach or violation of, or default under, any Requirements (as such term is
defined in the Ground Lease), applicable to Guarantor or any agreement,
order, commitment, judgment, or decree by which Guarantor is bound;
(iii) Guarantor is an Affiliate of Developer by virtue of Guarantor's ownership
interest in and voting control of the corporate general partner of the
Developer; and
(iv) Guarantor is solvent and will not be rendered insolvent by reason of this
Guarantee.
17. Whenever it is provided herein that notice, demand, request, consent, approval or
other communication shall or may be given to, or served upon, either of the parties by the other, or
whenever either of the parties desires to give or serve upon the other any notice, demand request,
consent, approval or other communication with respect hereto, each such notice, demand, request,
consent, approval or other communication (herein referred to in this Section 17 as a "Notice") shall
be in writing and shall be efrective for any purpose only if given or served by (i) certified or
registered U.S. Mail, postage prepaid, return receipt requested, (ii) personal delivery with a signed
6
068
61
receipt or (iii) a recognized national courier service, addressed as follows (or to such other addresses
as a party may direct by a Notice to the other party hereto; provided, however, that the number of
parties to receive such Notice, together with copies thereof, shall not be increased):
if to Guarantor:
R. Donahue Peebles
701 Brickell Avenue
Suite 2040
Miami, FL 33131
with a copy to:
Holland & Knight LLP
701 Brickell Avenue
30th Floor
Miami, FL 33131
Attn: Stuart K. Hoffman, Esq.
if to the Agency:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: Executive Director
with a copies to:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
Attn: General Counsel
and
Bloom & Minsker
800 Brickell Avenue
Suite 1100
Miami, FL 33131
Attn: Joel N. Minsker, P.A.
if to the City:
City of Miami Beach, Florida
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: City Manager
c'
7
069
62
with a copies to:
City of Miami Beach, Florida
1700 Convention Center Drive
4th Floor
Miami Beach, FL 33139
Attn: City Attorney
and
Bloom & Minsker
800 Brickell Avenue
Suite 1100
Miami, FL 33131
Attn: Joel N. Minsker, P.A.
Any Notice may be given, in the manner provided in this Section, on behalf of any party by
such party's attorneys as designed by such party by Notice hereunder. Every Notice 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.
18. The acceptance by the Agency and the City of this Guarantee shall constitute their
acceptance of the terms and provisions hereof.
19. This Guarantee shall terminate, and Guarantor shall be released from any and all
further obligations and liabilities hereunder, at the earlier of (a) such time as the Completion
Obligation has been performed (except as otherwise provided in Section 9 or Section 10 hereof), or
(b) such time as neither the Agency nor the City own the fee simple title to the Land.
20. From and after the date of the Guarantee, and for so long as this Guarantee is in
effect, the Guarantor shall make updated personal financial statements of the Guarantor available
for inspection by duly authorized representatives of the Agency and the City on an annual basis, and
shall advise the Agency and the City, in writing, of any material adverse change in the financial
condition of the Guarantor, promptly, as soon as such change becomes known to Guarantor,
including, but not limited to, material adverse changes as reflected on such personal financial
statements. Whenever financial statements are required to be made available for inspection by the
Agency and the City pursuant to this Section 20, such personal financial statements shall be made
available at a location within Dade County, Florida, during normal business hours.
21. Guarantor hereby agrees that time is of the essence in the performance of his
obligations under this Guarantee.
22. Events of Default. Guarantor shall be in default under this Guarantee upon the
happening of any of the following events, circumstances or conditions:
8
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63
(a) the Project is not Finally Complete by the Completion Deadline; or
(b) breach of any material representation, warranty or covenant contained herein, including,
but not limited to, failure to make available the financial statements or to advise the Agency or the
City of any material adverse change in the financial condition of the Guarantor in accordance with
Section 20 hereof; or
(c) death, insolvency, business failure, appointment of a receiver of any part of the property
of, assignment for the benefit of creditors by, or the commencement of any proceeding under any
State or Federal bankruptcy or insolvency laws by or against Guarantor; or
(d) upon entry of any monetary judgment or the assessment and/or filing of any tax lien,
and/or the issuance of any writ or garnishment or attachment against any property. of, debts due or .
rights of a Guarantor, and/or commencement of any action or proceeding to seize moneys or assets
of a Guarantor, against Guarantor in any amount in excess of $50,000.
Notwithstanding anything to the contrary contained herein, in the event of any default
described in subsections (b), (c) or (d) of this Section 22, the Guarantor and/or the Developer shall
have the right to cure any default under such subsections by delivering to the Agency and the City
within fifteen (15) calendar days of the receipt of written notice of such default from the Agency or
the City, a substitute completion guarantee (the "Substitute Guarantee") from a person or business
entity having a minimum net worth at least equal to the net worth of the Guarantor as of the date of
this Completion Guarantee. Such Substitute Guarantee shall contain the same provisions as this
Completion Guaranty and shall be modified only insofar as may be necessary in the event that the
guarantor thereunder is a business entity, such as a corporation, partnership or limited liability
partnership. The acceptance of such Substitute Guaranty shall be in the reasonable discretion of the
Agency and the City.
23. The Agency and the City may avail themselves of all remedies at law or in equity to
r~medy any default hereunder.
24. This Guarantee represents the entire agreement between the parties, and no waivers
or modifications shall be valid unless they given in writing, signed by the party to be charged
thereby, and expressly approved in writing by a duly authorized officer of the Agency or the City.
EXECUTED as of the day and year first above written.
.'
R. DONAHUE PEEBLES, a resident of Dade County,
Florida, individually
9
071
64
STATE OF FLORIDA
ss:
COUNTY OF DADE
On the _ day of , 1997, personally appeared before me, the undersigned
authority, R. DONAHUE PEEBLES, who is _ known to me personally to be the person who is
subscribed to the within instrument _ who produced a valid drivers license and
acknowledged to me that he executed the within instrument in the space provided above on this _
day of , 1997.
NOTARY PUBLIC, STATE OF FLORIDA
My commission expires:
.'
P,\ATTO\LEVL\HOTEL\COMPLGTY.FIN
10/15/97
10
072
65
EXHIBIT 3.1(a)
PRELIMINARY PLANS AND SPECIFICATIONS
AO.OI
AO.IO
AI.OI
A1.02
Al03
A1.04
AI.05
Al.06
A1.07
AI08
A1.09
Al.lO
. A1.11
. AI.12
A1.13
AI.I.
A1.15
Al.16
NOTE: AU ORAI'11NGS ARE DATEO AUGUST 25. 1997
UNLESS OTHERI'11SE NOT[D
* ADDENDUM 'c' 10-27-97
.. ISSUED AS A SEPARAIT PACKAGE AFTER 8-25-97
SURVEY
BOUNDARY SURVEY
CIVIL
0-01 CIVIL DEMOlITION SIT[ PLAN
C- 01 GRADING '" DRAINAGE PLAN
C-02 UTlllTY SERVICES PLAN
LANDSCAPE
lI-1 IRRIGATION PLAN'" DETAILS
LP-1 PLANTlNG PLAN
LL -1 LIGHTING PLAN
LH-l PAVING PLAN
LH-2 DETAILS
HISTORIC PRESERV A nON
RP-Dl ROYAL PALM DEMOUTlON FLOOR PLANS
RP-02 ROYAL PAlM DEMOlITION ELEVATIONS
RP HP-1 ROYAL PAlM FLOOR PLAN
RP HP-2 ROYAL PALM IN1[RIOR ElEVATlONS
RP HP-3 ROYAL PALM EXITRIOR ELEVATIONS
RP HP-4 ROYAL PALM REFLECTED CEILING PLAN
SC-Dl SHORECREST DEMOLITION FLOOR PLANS
SC-D2 SHORECREST OEMOllTION ELEVATIONS
SC HP-! SHORE CREST FLOOR PLAN
SC HP-2 SHORECREST INT[R10R ELEVATIONS
SC HP-3 SHORECREST EXTERIOR ELEVATIONS
SC HP-4 SHORECREST REFLECTED CEILING PLAN
LIFE SAFETY ..
LSC-O
LSC-1
LSC- 2
LSC-3
LSC-4
LSC- 5
LSC-6
LSC- 7
LSC-8
LSC-9
LSC-l0
LSC-11
LSC-12
LSC-13
LSC-14
LSC-1S
LSC-16
LSC-17
LSC-18
LSC-19
GENERAl LIFE SAFETY PRARAMEITRS
PARKING LEVliL FLOOR PLAN(WEST)
PARKING LEVEL FLOOR PLAN(EAST)
GROUND LEVEL FLOOR PLAN(WEST)
GROUND LEVEL FLOOR PLAN(EAST)
SECOND LEVEL FLOOR PLAN(WEST)
SECOND LEVEL FLOOR PLAN(EASr)
THIRD LEVEL FLOOR PLAN(WEST)
THIRD LEVEL FLOOR PLAN(EAST)
FOURTH LEVEL FLOOR PLAN(WEST)
FOURTH LEVEL FLOOR PLAN(EAST)
FIFTH LEVEL FLOOR PLAN(\\f:Sr)
FIFTH LEVEL FLOOR PLAN(EAST)
SIXTEENTH LEVEL FLOOR PLAN(WESr)
SIXTEENTH LEVEL FLOOR PLAN(EAST)
MECHANICAl FLOOR PLAN - ROYAL PALM
MECHANICAl FLOOR PLAN - SHORECRESI
ELEVATOR MACHINE ROOM - ROYAL PALM
ELEVATOR MACHINE ROOM - SHORE CREST
ROOF LEVEL - ROYAL PALM
A2.11 PARKING LEVEl AS.50 YIlNOOW !\'PES
A212 PARKING LEVEl AS.51 I'11NOOW !\'PES
A2.13 GROUND LEVEL A5.52 YIlNDOW !\'PES
A2.14 GROUND LEVEL
A2.15 SECOND LEVEL
A2.16 SECOND LEVEL * A6.2! DETAILS
A2.17 THIRD LEVEL * A6.22 DETAILS
* A6.23 DETAILS
A2.18 THIRD LEVEL * A6.24 DET AILS
A2.19 FOURTH LEVEl * A6.2S DETAILS
A2.20 FOURTH LEVEl
A2.21 FIFTH LEVEL
A2.22 FIFTH LEVEL A7.1O STAIR II DETAILS
A2.23 SIXTH LEVEL A7.11 STAIR IS DETAILS
A224 SIXTH LEVEL
A2.25 SEVENTH LEVEL A8.01 WALL !\'PES
A2.26 SEVENTH LEVEL AS.02 WALL T\'PES
* A2.27 EIGHTH LEVEL A8.03 WALL T\'PES
* A2.28 EIGHTH lfVEL
* A2.29 NIN TH LEVEl · A8.1O RAILING DET NLS
. A2.30 NIN TH LEVEl . AS.1! ROOF DETAILS
. A2.31 ITNTH LEVEL
* A2.32 TENTH LEVEL
* A2.33 ELEVENTH LEVEL
* A2.J.! ELEVENTH LEVEL
A2.35 SI XTEEN TH LEVEL STRUCTURAL
A2.36 SI XITEN TH LEVEL
A2.37 MECHANICAL LEVEL(17)
A2.38 MECHANICAL LEVEL('7)
A2.39 MECHANICAL LEVEL~18l
A2.40 MECHANICAL LEVEL 18 SO-I GENERAL NOTES '" INDEX TO DRAYIlNGS
A2A1 ROOF LEVEl SI-1 PARTIAL PARKING LEVEL FOUNDA nON PLAN
A2A2 ROOf' LEVEL SI-2 PARTAIL PARKING LEVEL FOUNDAnON PLAN
SI-3 PARTIAL GROUND LEVEL FRAMING PLAN
M.Ol DOOR SQiEDULE Sl-4 PARTIAL GROUND LEVEl FRAMING PLAN
A4.02 DOOR SQiEDULE SI-5 PARTiAl SECONO LEVEL FRAMING PLAN
M03 DOOR SQiEDULE SI-6 PARTIAL SECOND LEVEL FRAMING PLAN
M.04 DOOR SQiEDULE SI-7 PARTIAL THIRD LEVEL FRAMING PLAN
M.05 DOOR SQiEDULE
A4.06 DOOR SCHEOULE SI-8 PARTIAL THIRD LEVEL FRAMING PLAN
A..07 DOOR SCHEDULE Sl-9 PARTIAL FOURTH LEVEL FRAMING PLAN
A4.08 DOOR SCHEDULE SI-10 PARTIAL FOURTH LEVEL FRAMING PLAN
A4. 09 OOOR SCHEDULE SI-11 PARTIAL FIFTH LEVEL FRAMING PLAN
A..IO DOOR SCHEDULE SI-12 PARTIAL FIFTH LEVEL FRAMING PLAN
M.II DOOR SCHEDULE S1-13 SIXTH LEVEL FRAMING PLAN - ROYAL PAlM
A4.12 ODOR SCHEDULE SIXTH LEVEL FRAMING PLAN - SHORECREST
M.13 DOOR SCHEDULE S1-14 SEVENTH LEVEl FRAMING PLAN - ROYAL PALM
M.!4 ODOR SCHEDULE SEVENTli LEVEl FRAMING PLAN - SHORECREST
S1-1S EIGHTH LEVEL FRAMING PLAN - ROYAL PALM
EIGHTH LEVEL FRAMING PLAN - SHORECREST
M.21 LOUVER SCHEDULE SI-16 NINTH LEVEL FRAMING PLAN - ROYAL PALJ.4
NINTH LEVEL FRAMING PLAN - SHORECREST
AS.OI E!W ELEVATIONS S1-17 TENTH LE\1:L FRAMING PLAN - ROYAl PALM
T[NTH LE\1:L FRAMING PLAN - SHORECREST
AS.02 NORTH SHORE CREST S1-18 ELEVENTH LEVEL FRAMING PLAN - ROYAL PALM
AS.03 SOUTH SHORECREST ELEVENTH LE\1:L FRAMING PLAN - SHORECREST
AS.04 NORTli ROYAL PALM Sl-19 TVlELFTli LEVEl FRAMING PLAN - ROYAL PALM
A5.05 SOUTH ROYAL PALM TVlELFTli LEVEL FRAMING PLAN - SHORE CREST
A5.10 EAST ELEVA nON SI-20 TliIRTEENTli LEVEL FRAMING PLAN - ROYAL PALM
AS.ll WEST ELEVATION TliIRTEENTH LEVEL FRAMING PLAN - SHORE CREST
A5.12 NORTli ROYAL PALM SI-21 FOURTEENTli LEVEL FRAMING PLAN - ROYAL PALM
AS.13 NORTli ROYAL PALM FOURTEENTli LE\1:L FRAMING PLAN - SHORE CREST
AS.I. SOUTH ROYAL PALM Sl-22 FIFTEENTH LE\1:L FRAMING PLAN - ROYAL PAIJ.I
A5.1S SOUTH ROYAL PALM FIFTEENTH LEVEL FRAMING PLAN - SHORECREST
AS.16 NORTli GARDEN sums S1-23 SiXTEENTli LE\1:L FRAMING PLAN - ROYAl PALM
A5.17 NORTH SHORECREST SIXITENTli LEVEL FRAMING PLAN - SHORE CREST
AS.18 SOUlH SHORECRES1 Sl-24 MECHANICAL LEVEL - MAIN ROOF FRAMING PLAN - ROYAL PAL~
A5.19 SOUTH GARDEN SUITES MECHANICAL LE\1:L - MAIN ROOF FRAMING PLAN - SHORE CREST
Sl-25 ELEVATOR MAQiINE LEVEL FRAMING PLAN - ROYAl PALM
A5.20 CROSS SECTION A-A ELEVATOR MAQiINE LEVEL FRAMING PLAN - SHORECREST
S1-26 ROOF OVER MACHINE ROOM FRAMING PLAN - ROYAL PALM
AS.20 CROSS SECTION 0-0 ROOF O\1:R MACHINE ROOM FRAMING PLAN - SHORECRESI
A5.21 CROSS SECTION F-F
A5.21 CROSS SECTION E - E
A5.22 ROYAL PALM LONGITUDINAL S2-1 PILE CAP AND PILECAP SCHEDULES
A5.23 SHORECREST LONGITUDINAL S2-2 FOUNDA TION SECTIONS & OET AILS
A5.24 CROSS SECTION A-A S2-3 FRINGI8LE SlAB ANO WALL SECTIONS
AS.2S CROSS SECTION 8-8 S2-4 SHORECREST FOUNOA nON MA TS
A526 CROSS SECTION C-C
A5.27 CROSS SECTION 0-0 S3-1 POST-ITNSIONEO FRAMING TYPICAL OETAILS & SCHEDULE
AS.28 ROYAL PALM LONGITUOINAL 53-2 POST-TENSIONED FRAMING TYPICAL DETAILS
AS.29 ROYAL PALJ.4 LONGITUDINAL S3-3 CONCRETE REPAIR DETAILS FOR EXISTING S mucruRE
A5.30 SHORECREST LONGITUDINAL S3-4 FRAMING DETAILS AND SECTIONS
A5.31 SHORECREST LONGITUOINAL S3-S FRAMING DETAILS AND SECTIONS
AS.32 SHORECREST WALL SECTIONS S3-6 FRAMING DETAILS AND SECTIONS
A5.33 SHORECREST NORTH EN mANCE
A5.34 SHORECREST WALL SECTIONS S4-1 ROOF FRAMING DETAILS
AS.3S GARDEN SUITE !'LEV. lOWER SECnJI:
AS.36 COURTYARD CROSS SECnON S4-2 TRANSFER GIRDE~S
A5.3? ~~2~~R~~\n:JAC~ A~~ C~60N S
A538
A5.39 ROYAL PALM WAlL SECTIONS S5-1 CONCRETE COLUMN SCHEDULES
A5.40 ROYAL PALM WALL SECTIONS
A5.41 ROYAL PALM WALL SECTIONS
A5.42 ROYAL PALM WALL SECTIONS SHEARWALL ELEVA nONS
A5.43 ROYAL PALM POOL BAR CANOPY S6-1 073
A5.44 ROYAL PALM POOL BAR CANOPY S6-2 SHEARWALL ELEVATIONS
* A5.45 ROYAL PALM STAIR #7 S6-3 SHEARWALL ELEVATIONS
CONTINUED ON THE FOLLOWING PAGE.. .
66
ARCHITECTURE
DRAI'11NG INDEX
sm PLAN, ZONING INFORMA nON
PARKING LEVEL
GROUND LEVEL
SECOND LEVEL
TliIRD LE VEL
FOUR TH LEVEL
FlFTli LEVEL
SIXTli LEVEL
SEVENTli LEVEL
EIGHTli LEVEL
NINTli LEVEL
T[NTli LEVEL
ELE\1:NTH LEVEL
SIXITENTli LEVEL
MECHANICAL LEVEL(1?)
MECHANICAL LEVEL(18)
ROOF LEVEL
EXHIBIT 3.1(a) PRELIMINARY PLANS AND SPECIFICATIONS
MECHANICAL
1A1.01
IAt02
IAt03
IAt04
IAt05
IAt06
IAl.07
IA'.OB
IAt09
1.11.10
1A1.'1
1A1.12
IAT.1J
1A1.14
1A1.1S
IAU6
1.11.17
IAUB
IAU9
IAt20
IAT.21
IAT.22
1A3.01
1A4.01
1A4.02
1A4.03
1A4.04
1A4.05
PAR1AIL PARKING LEVEL IAECH. PLAN - WES1
PARTIAL PARKING LEVEL IAECH. PLAN - EAST
PARTIAL GROUNO FLOOR IAECH. PLAN - WEST
PARTIAl GROUNO flOOR IAECH. PLAN - EAS1
PARTIAL SECOND FLOOR IAECIi. PLAN - WEST
PARTIAL SECOND flOOR MECH. PLAN - EAST
PARTAIL THIRD FLOOR I.IECIi. PLAN - II!:ST
PARTIAL THIRD flOOR IAECH. PLAN - EAST
PAR11AL FOURTH FLOOR MECH. PLAN - Vtf:ST
PARTIAL FOURTH flOOR MECH. PLAN - EAST
PARTIAL FIFTH FLOOR IAECH. PLAN - Vtf:S1
PARTAIL FIFTH FLOOR IAECIi. PLAN - EAS1
PAR11AL SIXTH THRU SEVENTH FLOOR IAECH. PLAN - WEST
PARTIAL SIXTH THRU SEVEN1H FLOOR IAECH. PLAN - EAST
PAR11AL EIGHTH THRU SIXTEENTH FLOOR IAECH. PLAN - WEST
PARTIAL EIGHTH THRU SIXTEENTH FLOOR MECH. PLAN - EAST
PARTIAL SEVENTEENTH FLOOR MECH. PLAN - WEST
PAR11AL SEVENTEENTH flOOR MECH. PLAN - EAST
PARTIAL EIGHlEENTH FLOOR IAECH. PLAN - WEST
PAR11AL EIGHTEENTH FLOOR IAECH. PLAN - EAST
ROOF MECHANICAL PLAN - Vtf:ST
ROOF MECHANICAL PLAN - EAST
IAECHANICAL D::TAILS
SHORECREST CHIllER PLAN1 IAECHANICAL SCHEDULE
ROYAL PALlA CHILLER PLANT IAECHANICAL SCHEDULE
AHU.RnJ AND FCU IAECHANICAL SCHEDULES
FANS SCHEDULES AND NOTES
DIFFUSERS AND LEGEND
P4.01
FPt01
FP1.02
FPT.03
FPt04
FP1.05
FP1.06
FP1.07
FP1.0B
FP1.09
FP1.lO
FP1.11
FP1.12
FP1.13
FP1.14
FP1.1S
FP1.16
FP1.17
FP1.1B
FP1.19
FP1.20
FPI.21
FP1.22
FP2.01
P1.01
P1.02
P1.03
P1.04
P1.0S
P1.06
P1.07
P1.0B
PARTIAl PARKING LEVEL PLUUBING PLAN (WEST)
PARTIAL PARKING LEVEL PLUIABING PLAN (EAS1)
PARTIAL GROUND FLOOR PLUUBING PLAN (v.rST)
PARTIAL GROUND FLOOR PLUMBING PLAN (EAST)
PARTIAL SECOND flOOR PLUUBING PLAN (v.BT)
PARTIAL SECOND flOOR PLUIABING PLAN (EAS1)
PARTIAL THIRD FLOOR PLUUBING PLAN (v.rST)
PARTIAL THIRD FLOOR PLUUBING PLAN (EAST)
PARTIAL FOURTH FLOOR PLUIABING PLAN (v.rST)
PARTIAL FOURTH FLOOR PLUIABING PLAN (EAST)
PARTIAL FIFTH FLOOR PLUI.IBING PLAN (I'tl:ST}
PARTIAL FIFTH FLOOR PLUI.IBING PLAN (EAST
PARTIAL SIXTH FLOOR PLUUBING PLAN (WEST
PARTIAL SIXTH FLOOR PLUMBING PLAN (EAST
PARTIAL EIGH1H FLOOR PLUMBING PLAN (WEST)
PARTIAL EIGHTH flOOR PLUMBING PLAN (EAST)
PARTIAL SEVENTEENTH FLOOR PLUMBING PLAN (v.rSl)
PARTIAl SEVENTEENTH FLOOR PLUIABING PLAN (EAS1)
PARTIAL EIGHTEENTH FLOOR PLUMBING PLAN (v.rS1)
PARTIAl EIGHlEENTH flOOR PLUMBING PLAN (EAST)
ROOF PLUMBING PLAN (WEST)
ROOF PLUIIBING PLAN (EAS1)
PLUIABING DETAILS &. NOTES
PARTIAL PARKING LEVEL FIRE PROTECTION PLAN (I'tl:ST)
PARTIAL PARKING LEVEL FIRE PR01ECTION PLAN (EAS1)
PARTIAL GROUND flOOR FIRE PROTEC110N PLAN (I'tl:ST)
PARTIAL GROUND FLOOR FIRE PROTECTlON PLAN (EAST)
PARTIAL SECOND FLOOR FIRE PROTEC110N PLAN (WEST)
PARTIAl SECOND FLOOR FIRE PROTEC110N PLAN (EAST)
PARTIAL THIRD FLOOR FIRE PROTECTION PLAN (Vtf:ST)
PARTIAL THIRD FLOOR FIRE PROTECTION PLAN (EAS1)
PARTIAL FOURTH FLOOR FIRE PR01ECTION PLAN (WEST)
PARTlAL FOURTH FLOOR FIRE PROTECTION PLAN (EAST)
PARTIAL FIFTH FLOOR FIRE PROTECTION PLAN (Vtf:ST)
PARTIAL FIFTH FLOOR FIRE PROTECTION PLAN (EAST)
PARTIAL SIXTH FLOOR FIRE PROTECTION PLAN (v.rS1)
PARTIAL SIXTH FLOOR FIRE PROTECTION PLAN (EAST)
PARTIAL EIGHTH FLOOR FIRE PROTECTION PLAN (WEST)
PARTIAL EIGHTH FLOOR FIRE PROTECTION PLAN (EAST)
PARTIAL SEVENTEENTH flOOR FIRE PROTECTION PLAN (WESf)
PARTIAL SEVENTEENTH FLOOR PLUMBING PLAN (EAST)
PARTIAL EIGHTEENTH FLOOR PLUIABING PLAN (I'tl:ST)
PARTIAL EIGHTEENTH FLOOR PLUIABING PlAN (EAST)
ROOF PLUMBING PLAN (WEST)
ROOF PLUMBING PLAN (EAST)
FIRE PROTECTION DETAILS AND NOTES
FS-2.1
FS-2.2
FS- 2.3
FS-2.4
FS- 2.S
FS-2.6
FS- 2. 7
FS- 2.B
LS-3.1
. LS-3.2
10-100
10-101
ID-PR100
ID-PRI01
10-PR102
ID-PR200
10 - PR201
10-PR202
ID-PR203
ID - PR300
ID-PR301
ID-PNIOO
10-PN101
ID-PN103
Pl.09
Pl.10
P1.11
P1.12
P1.'3
P1.14
P1.15
PU6
P1.17
PUB
Pl.l9
P1.20
P1.2l
P1.22
FOOD SERVICE ..
FS-O.l
FS-1.1
FS-1.2
FS-1.3
FS-1.4
FS-1.S
FS-1.6
NOTES
EQUIPIAENT PLAN I< SCHEDULE
IAECHANICAl SPOTS
ELECTRICAL SPOTS
SPECIAL CONDITIONS
UTILITY LOAD SCHEDULE
UTILITY LOAD SCHEDULE
1A5.01
1A5.02
HVAC CONTROL NOTES
HVAC CONTROL NOTES
EQUIPUENT PLAN AND SCHEDULE
IAECHANICAL SPOTS
ELECTRICAl SPOTS
SPECIAL CONDITIONS
~ Hm~ [g~8 ~8jf8tl[f
UTILITY LOAD SCHEDULE
UTILITY LOAD SCHEDULE
EQUIPIAENT SCHEDULE
IAECHANICAL SPOTS
POOL
SP-l SITEPLAN-POOL AREA 'I &. SPA
SP- 2- POOL #' &. POOL.l2
SP-3 DETAILS .
SP-4 EQUIPIAENT
SP-S EQUIPIAENT
SPEC. MANUAL VOL. I
INTERIOR DESIGN
. ID-PNI02
. ID-PNll0
* ID-PN111
ID-PN200
ID-PN201
ID-PN202
* ID-PN210
. ID-PN211
ID-PN40D
ID-PN401
. ID-PSIOO
. ID-PSI01
. ID-PS102
ID-PSIIO
ID-PSIll
ID-PS1I2
ID-P100
10-PlOl
ID-PIIO
ID-P120
ID-G20D
ID- G201
ID-G202
10-GG200
ID - GN400
ID-GS400
S'i'MBOlS LEGEND SHEET
FINISH SCHEDULE &. ROOIA MA TRIX
EX.RP LOBBY. DECO BAR I< OFFICES - AR EL &. FF PLANS
EX.RP LOBBY. DECO BAR &. OFFICES - FC &. RC PLANS
EX.RP LOBBY. DECO BAR &. OFFICES - ELEVA TlONS
EX.RP CONFERENCE CENTER - AR. EL &. FF PLANS
EX.RP CONFERENCE CENTER - FC &. RC PLANS
EX.RP CONFERENCE CENTER - ELEVA TlONS
EX.RP CONFERENCE CENTER - AR. EL &. IT PLANS
EXRP GUEST ROOM CORRIDOR - PLANS
EKRP GUEST ROOM CORRIDOR - ELEVA nONS
RP PREFUNCTlON AREA. BANQUET ROOM &.
ELEV.LOBBY - AR. EL &. FF PLANS
RP PREFUNCTlON AREA. BANQUET ROOM &.
ELEV. LOBBY - FC &. RC PLANS
RP PREFUNCTION AREA. BANOUET ROOM &.
ELEV. LOBBY - ELEVATIONS
RP BANOUET ROOIA ELEVATIONS
RP EXCERCISE BREEZEWAY & POOL BAR - PLANS
RP EXCERCISE BREEZEWAY & POOL BAR - ELEVATIONS &. DETAILS
RP RESTAURANT &. ELEV. LOBBY - AR. EL &. FF PLANS
RP RESTAURANT &. ELEV. LOOBY - FC &. RC PLANS
RP RESTAURANT &. ELEV. LOOBY - ELEVATIONS
RP UPPER POOL TERRACE & POOL GRILL - PLAN S
RP UPPER POOL TERRACE &. POOL GRILL - ELEVATIONS &. DETAILS
RP GUES T ROOIA CORRIDOR - PLANS
RP GUEST ROOIA CORRIDOR - ELEVA TlONS &. DEl AILS
SC LOBBY - AR. EL &. FF PLANS
SC LOBBY - FC &. RC PLANS
SC LOBBY - ELEVA TlONS
RP BANQUET ROOM - PLA~S
RP BANQUET ROOM - FC & RC
RP PRE -FUNCTION AREA
PUBLIC REsmOOMS - PLANS
PUBLIC REsmOOMS - ELEVA TlONS
ELEVA TOR CABS - PLANS. ELEVATIONS & GET AILS
PUBLIC AREAS - I.IISC DEIAILS
KEY PLANS - 1 10 JRO FLOOR
KEY PLANS - 4 TO 7TH FLOOR
KEY PLANS - B TO 16TH FLOOR
GARDEN SUITES GUES] ROOMS
RP CUES T ROOIA PLANS
SC GUES] ROOM PLANS
67
E1.01
El.02
E103
El.04
E1.0S
E106
E107
E1.08
E1D9
E1TO
E1.11
El 12
E1.13
E1.14
E1.15
El.16
El.17
E118
El.19
E1.20
E1.21
E122
PART AIL PARKING LEVEL ELEC. PLAN - Vtf:ST
PARTIAL PARKING LEVEL ELEG. PLAN - EAST
PARTIAL GROUND FLOOR ELEC. PLAN - WEST
PARTIAL GROUND FLOOR ELEC. PLAN - EAST
PARTIAL SECOND FLOOR ElEG. PLAN - v.rST
PARTIAL SECOND FLOOR ELEC. PLAN - EAST
PARTAIL THIRD FLOOR ELEC. PLAN - WEST
PARTIAL THIRD FLOOR ELEC. PLAN - EAST
PARTIAL FOURTH FLOOR ELEC. PLAN - WEST
PARTIAL FOURTH FLOOR ELEC. PLAN - EAST
PARTIAL FIFTH FLOOR ELEC. PLAN - VlEST
PARTAIL FIFTH FLOOR ELEC. PLAN - EAST
PARTIAL SIXTH THRU SEVENTH FLOOR ELEC. PLAN - WEST
PARTIAL SIXTH THRU SEVENTH FLOOR ELEC. PLAN - EAST
PARTIAL EIGHTH THRU SIXTEENTH ELEC. PLAN - WEST
PARTIAL EIGHTH THRU SIXTEENTH ELEC. PLAN - EAST
PARTIAL SEVENTEENTH FLOOR mc. PLAN - \\EST
PARTlAL SEVENTEENTH FLOOR ELEC. PLAN - EAST
PAR TIAL EIGHTEENTH FLOOR ELEC. PLAN - \\ES T
PARTIAL ElGH TEEN TH FLOOR ELEC. PLAN - EAST
ROOF ELECTRICAL PLAN - WEST
ROOF ELECTRICAL PLAN - EAST
E201
E2.02
E2.03
E2.04
DOS
E2.06
E2D7
E2.08
PARTIAL PARKING LEVEL LIGHTING PLAN - \\EST
PARTIAL PARKING LEVEL LIGHTING PLAN - EAST
PARTlAL GROUND FLOOR lIGHTlNG PlAN - \\EST
PARTIAL GROUND FLOOR LIGHTING PLAN - EAST
PARTAIL SECOND FLOOR LIGHTING PLAN - WEST
PARTlAl SECOND FLOOR LIGHTING PLAN - EAST
PARTIAL THIRD FLOOR lIGHTlNG PLAN - II!:ST
PARTlAL THIRD FLOOR lIGHTlNG PLAN - EAST
D.OI
D.02
D.03
ROYAL PALlA TYPICAL GUESTRDOIA LEVEL mG. PLAN
GARDEN SUITES TYPICAL GUESTROOM LEVEL ELEC. PLAN
SHORECREST TYPICAL GUESTROOM LEVEL ELEC PLAN
E4.00
E4.01
E402
E4.03
ELECTRICAL RISER DIAGRAM
FIRE ALARM RISER DIAGRAIA
TELEPHONE RISER GIAGRAIA
TV RISER DIAGRAM
E5.01
E5.02
[5.03
E5.04
(5.05
E5.06
E5.07
E5.08
PANEL SCH[[)ULES - ELECTRICAL
PANEL SCHEDULES - ELEcmlCAl
PANEL SCHEDULES - ELECTRICAL
PANEL SCHEDULES - ELEcmlCAL
PANEL SCH[[)ULES - ELEcmlCAL
PANEL SCHEDULES - ELECTRICAL
PANEL SCHEDULES - ELECTRICAL
PANEL SCHEDULES - ELECTRICAL
E510 SYMoOLS. NOlIS AND LIGHTING FIXTURE SCHEDULES
074
Exhibit 3.5(a)
Royal Palm Crowne Plaza
Development Budget
SQ. Ft. # Rooms # Suites
46,335 60
249,940 229
296.275 289
34.510 ~
Total Per Unit
$11.100.000 $25.935
$29,267,000
$234.136
$29.501.136
!Q
$29.501,136
$2,118,276
$151,434
$141,360
$311,499
$147,506
$5,258,843
$220,000
$319,000
$120,000
$16,000
$184,391
$1,200,000
$450,000
$1,430,000
$1,226,000
$259.200
$13.553.509 $31.667
$54,154,645
$1,523,325
$1,330,674
$1.991.356
$4.845.355
$59.000.000
Original Bldg.
New Building
428 Total
16
Total Number of Keys
Number of Months of Construction
Parking
Land I Existing Building -
Hard Costs
Hotel, New Construction and Renovation
General Contractor's Bond 0.80%
Hard Cost Contingency
Total Hard Costs
Included above
Soft Costs
Architects & Engineers
Building Permit Fees, Etc.
Threshold Inspections
Real Estate Taxes
Insurance
FF & E
RecordingfTransfer Fees
Legal & Accounting
Title Insurance
Lender Inspection Fees
Technical Consultant
Financing Fees
Pre - Award Bid Expenditures
Preopening Expenses
Project Management Fee
Leasing Commission
Total Soft Costs
Subtotal (Hard & Soft Costs)
Interest
Contingency
Development Fee
Total Interest and Fees
Total Development Costs
O~,5
68
10/13/97
11:25 AM
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EXHIBIT 3.8(b) - DEVELOPER'S FEE DISBURSEMENT ANALYSIS
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97 10-45A GROVER WEINSTEI~_~~__
Oct - 15 - - ~o r~ ...u.........""~,,,
u~/U~/~I 1~~ ~,.
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P.02
.EXHIBIT 3.BCd)
Mi'eston~
Percent of Contingency Required
to be Avai'able and Undisbursed
(the "'Required Contingency
Percent:!
1)
Commencement of Construction
100%
2)
Completion of 85% of the Buy Out (defined as executed
contracts for the hard costs construction trade line items
of the development budget) on budget.
75%
3)
Topping Out (defined as completion of the pouring of the
top floor of the new tower) of the structure.
65%
4)
Completing the building exclosure (defined as making the
building weather tight through the completion of the roofing
and exterior facades of the building).
55%
5)
50% completion of the interior framing and sheetroCking
(defined as construction of partitions including studs and
GWB [gYPsum wall board]).
45%
100 % completion of the interior framing and sheetrocking.
35%
Start-up of al/ air-conditioning systems.
25%
50% of rooms are ready for punch/ist (defined as list of
items and details whose repair mUst be completed before
they are acCepted by the operator).
15%
Final certificate of OCCupancy.
0%
077
70
Exhibit 5.3(a)
INSURANCE REQUIRED OF CONTRACTOR
(a) Worker's compensation insurance covering all employees of the Contractor as
required by the laws of the State of Florida and employer's liability insurance of not less than One
Million Dollars ($1,000,000) per occurrence.
(b) Comprehensive general liability insurance in an amount of not less than One Million
Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate
covering personal injury and property damage. Such coverage shall include, but not be limited to,
the following:
1. Blanket contractual liability insurance covering all indemnity or hold harmless
agreements.
2. Protective liability insurance for the operation of the Independent Contractors.
3. XCU coverage (explosion, collapse or damage to underground property).
4. Products and completed operations (for two year extension beyond completion of
project).
(c) Excess umbrella liability insurance with a limit of not less than Fifty Million Dollars
($50,000,000) per occurrence and in the aggregate in excess of the above mentioned insurance;
which.shall be required only in any "wrap up" policy.
(i) Developer may cause the insurance listed in this subsection (i) to be provided through
an overall "wrap up" policy, in lieu of individual policies provided by Contractors.
(ii) Comprehensive automobile insurance in an amount of not less than Two Million
Dollars ($2,000,000) combined single limit for bodily injury and property damage covering all
owned, non-owned or hired vehicles, trailers or semi-trailers, including any machinery or apparatus
attached thereto.
."
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Exhibit 6.3(a)
lEES.
BUILDING PERMIT
Alterations & repairs
Awnings & canopies
Concrete slab (other than paving)
Demolition of building
Elevator hoistway construction
Fence and/or walls
Landscaping
New building and/or additions
New building other
Painting
Parking area lighting
Paving
Roofing (including re-roofing)
Signs
Swimming pools
Windows, exterior doors, storefronts & fixed glass
CERTIFICATE OF OCCUPANCY
Certificate of completion
Final certificate of occupancy
. Temporary certificate of occupancy
ELECTRICAL PERMIT FEE
Combinations
Equipment outlets or permanent connections
Fire detections systems
Fixtures
Generators/transformers, commercial heating equipment & strip
heaters
Machine outlets or permanent connectors
Master televisions, intercom, burglar alarm, telephone & radio
Plummold
Rough wiring outlets
Services
Signs
Special purpose outlets (commercial)
Streamers or festoon lights
Swimming pool lighting
Switchboards .
Welding machine outlets
"~79
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MECHANICAL PERMIT FEE
Air conditioning & refrigeration
Amusement rides and devices
Boilers and pressure vessels
Duct work
Elevators, escalators & other lifting apparatus
Furnaces and heating equipment
Internal combustion engines
Storage tanks for flammable liquids
OTHER FEES
Fire processing fees
Interim general and proprietary fees
Marine structure fees
Miami Beach training fees
Parking impact fees
Radon fees
Zoning processing
PLUMBING PERMITTING FEES
Condensate drains
Drainage
Fire control systems
Minimum plumbing fee per permit
. Miscellaneous
Natural gas and liquefied petroleum
Rough & set fixtures
Septic/settling tanks, oil interceptors and grease traps
Sewers
Storm & sanitary utility and/or collector lines
Temporary toilets
Water and gas mains
Water heaters (electrical or gas)
Water piping
Water/sewage treatment plants & lift/plumbing stations
PREMISE PERMIT
Initial and final premise permit fee
.'
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Exhibit 19.1(h)
LIST OF PROJECT AGREEMENTS
Agreement of Lease
Garage Easement Agreement
Convention Center Agreement
08::
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