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3) Amended Declaration Covenant e. { T \.{ C. L b-')t.lL.- F l L~ tLep #: 5/ 0 RIciW~ #3 AMENDMENT TO DECLARATION OF COVENANTS AND RESTRICTIONS This AMENDMENT TO DECLARATION OF COVENANTS AND RESTRICTIONS ("Amendment") is made as of the 15" day of 17:BI..lIRTVi, .2005, by MIAMI BEACH REDE- VELOPMENT AGENCY, a public body corporate and po itic (the "Owner"), and RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP, a Florida limited partnership ("Tenant"). RECITALS: A, Owner previously executed and recorded among the Public Records of Miami- Dade County, Florida in Official Records Book 18170, at Page 883, that certain Declaration of Covenants and Restrictions dated May 28, 1998 (the "Declaration") relating to the property described in Exhibit "A" attached hereto (the "Property"), B. Tenant has leased the Property from Owner pursuant to an Agreement of Lease recorded among the Public Records of Miami-Dade County in Official Records Book 18170, at Page 893 (the "Lease"). Immediately after the execution and delivery of this Amendment and as a material inducement for and a condition of Agency and Owner entering into this Amendment, the Recognized Mortgage encumbering Tenant's Interest in the Premises will be paid in full, the Purchase Price will be paid and the Lease will be terminated. C. Subsequent to the recording of the Lease, Tenant began the construction of the Royal Palm Crowne Plaza Hotel ("Hotel"). D. During the construction of the Hotel, Tenant encountered certain conditions at the Property which allegedly resulted in certain construction delays, A dispute arose amongst the parties regarding the aforesaid conditions and delays resulting in Tenant's refusal to pay certain Rental due under the Lease and the Agency's refusal to pay claims related to said conditions and alleged construction delays. E. The parties respectively deny and dispute all such claims and allegations against them, whether asserted or unasserted. F, The parties, wishing to avoid litigation and amicably resolve all matters existing between them, entered into negotiations regarding the aforesaid disputes resulting in this Amendment and other agreements. G. Agency and City in their desire to maintain and fulfill their commitment to pro- vide the African American community with opportunities in the hospitality industry, are willing to amend the Royal Palm Crowne Plaza agreements and agree that the Hotel shall continue to comply with the Convention Center Agreement (which Tenant, as owner of the Hotel and on behalf of the Hotel, has agreed to do) whh:h provides, among other things, that the Hotel owner and its successors and assigns make available Hotel facilities and services for support of the Convention Center events and to undertake joint marketing efforts, H. The parties agree that any rights and obligations of Tenant created by the Declaration and this Amendment shall run with the land and inure to, and be binding upon, any future owner of the Premises. M I. Tenant and Owner wish to amend certain of the provisions of the Declaration as hereinafter set forth. NOW, THEREFORE, in consideration often dollars and other good and valuable consid- eration, the receipt and adequacy of which are hereby acknowledged and intending to be legally bound, the parties hereby amend the Declaration as follows: 1. Recitals. The foregoing recitals are true and correct and incorporated by refer- ence herein. 2. Definitions. All defined terms (denoted by capitalization or other indication of special definitions such as quotation marks) used in this instrument which are not defined in this instrument shall have the meanings set forth in the Declaration, 3, Covenants and Restrictions on Premises. The Declaration is hereby amended to provide that (a) Section 2.2 shall nut apply to the Shorecrest Land portion of the Property, as defined in the Lease, and legally described in Exhibit "A" attached hereto and made a part hereof; (b) Section 2.3 of the Declaration shall have no further force or effect except that if then applicable zoning ordinances require a covenant in lieu of unity of title, the owner of the Premises shall fully comply with such ordinances and any other Requirements; (c) despite the payment of the Purchase Price and tennination of the Lease, the Declaration shall not tenninate; and (d) in the event the owner of the Premises creates a condominium on the Shorecrest Land, the owner of the Premises shall payor cause the condominium association to pay the corresponding beach concession fees consistent with those fees charged other upland private owners of hotel and condominium properties, Notwithstanding anything to the contrary in the foregoing, the parties acknowledge and agree that the use of the Royal Palm Land, as legally described in Exhibit "A" of the Declaration, for any ownership structure such as time share, time interval, cooperative or condominium is strictly prohibited. 4. Additional Chan~es to Covenants and Restrictions. (a) Section 2.4 of the Declaration is hereby amended to delete "restaurant portion of the Premises" and to substitute "condominium units that may be pennitted on the Shorecrest Land" is substituted therefor; (b) Section 3.6(iv) of the Declaration is deleted; and (c) the last sentence of Section 3,6 of the Decla- ration is deleted in its entirety. 5. No Further Modification. Except as otherwise set forth herein, the Declaration remains unmodified and in full force and effect. 6. WAIVER OF JURY TRIAL. TENANT AND OWNER HEREBY KNOW- INGL Y, VOLUNTARILY AND INTENTIONALL Y WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT AND THE DECLARATION, AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR OWNER TO ENTER INTO THIS AMENDMENT. FURTHER, BOTH TENANT -2- tW AND OWNER HEREBY CERTIFY TO EACH OTHER THAT NO REPRESENTATIVE OR AGENT OF EITHER ONE OF THEM, NOR THEIR COUNSEL, HAS REPRE- SENTED, EXPRESSLY OR OTHERWISE THAT EITHER ONE OF THEM WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION, - 3 - /tv! IN WITNESS WHEREOF, the parties have executed this Amendment to Declaration of Covenants and Restrictions to be effective as of the day and year first set forth above, AGENCY Witnesses: 21~ Qti~'-- , Print Name: ~) J. Itt,ll\. ~ ATTEST: p~ ~~/P By. CH REDEVELOPMENT AGENCY, rporate and politic --- STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE) BEFORE ME, the undersigned authority, personally appeared David Dermer, Chairman and Robert Parcher, Secretary, of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic, to me known to be the persons who signed the foregoing instrument and acknowledged the execution thereof to be the act and deed of said Agency for the uses and purposes therein mentioned, and that they affixed thereto the official seal of said Agency. Each such individual is personally known to me or produced a valid drive's license as identification. - rr- Witness my hand and official seal in the County and State last aforesaid this K- day of ~~OOS. (NOT ARIA EAL) , ~~ Ile: ">!:tm'/ex /Y}t)1"4/es Public-State of Florida at Large COllUIlissiuIl Nwnbt:r: bD~a 719' My Commission Expires: "-;'\'~~:"':~~"" YAM/LEX MORAlEs l<'m' .>\ Notary PubIIo - Stale or I'klrIda ~ . ~~ . '/n.,-0:lmmIIIc:n~Feb15,3Xl9 ~ ....~1o.,,<f.~~ C.omm/sslon # DO 362988 -........ Bondeo Rv II/oltonal Notary As.~n, - ,- APPROVED AS TO FORM & LANGUAGE & FOR EXEcunON -4- ~rr WA.~ss: ~ RDP ROYAL PALM HOTEL LIMITED PART- ".^ :.' ~ NERSHIP, . Fluridalimi,.u p"'ln=bip PnntName:____ _neLL! By: PADC HOSPITALITY CORPORATION I, a... d, ~nn., a Florida corporalio as General Partner PnntName7~.b.r;!....I. ' By: STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE) It . J. 'l- l Iii ^ ~~ C~'~ Q '{ r~llrlo(Qr'( \jO'OOu I .(. BEFORE ME, the undersigned authority, personally appeared R. Donahue Peeh es, as President of P ADC HOSPITALITY CORPORA nON I, a Florida corporation, on behalf of such corporation, and as General partner of RDP ROYAL PALM HOTEL LIMITED PARTNER- SHIP, a Florida limited partnership, on behalf of such limited partnership. He js personally known to me or produced a valid Florida driver's license as identification. . (NOTARIAL SEAL) ~1I'l1&r.. Nathalie Legagneur 'WY:: Commission" 00385416 ~'MI)j Expires February 5, 200~8 ~lf.~'-BandodT"'I'IIn.-'1no. ~ Print Name: r Commission Number: My Commission Expires: -5- w EXHffiIT "A" THE PROPERTY 61760,000001 MIAM1217811 v8 -6- 111/ Uti OR BK 23105 PG 0710 LAST PA('JE EXHIBIT A DESCRIPTION OF THE 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 10,0 feet (measured along the lot line) of Lots 5 and 16, all in Block 56, of FISHER'S FIRST SUBDIVISION 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 mention~d 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 SUBDIVISION 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.