228-95 RDA
RESOLUTION NO. 228-95
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING AND DIRECTING
THE CHAIRMAN AND SECRETARY TO EXECUTE THE ATTACHED
AMENDMENT TO THAT CERTAIN LETTER OF INTENT BY AND
BETWEEN THE MIAMI BEACH REDEVELOPMENT AGENCY, THE CITY
OF MIAMI BEACH, FLORIDA, ST. MORITZ HOTEL CORPORATION
AND LOEWS HOTELS HOLDING CORPORATION, PERTAINING TO THE
DEVELOPMENT OF A CONVENTION CENTER HOTEL AND PARKING
GARAGE.
WHEREAS, St. Moritz Hotel Corporation ("SMHC") was the winning bidder in response
to the Convention Center Hotel Request for Proposals; and
WHEREAS, the Miami Beach Redevelopment Agency (the "RDA"), the City of Miami
Beach, Florida (the "City"), SMHC and Loews Hotels Holding Corporation ("LHHC") executed a
Letter of Intent (the "LOI") pertaining to the development of an approximately 800 room hotel (the
"Hotel") at and near 16th Street east of Collins Avenue, Miami Beach and an approximately 800 car
garage (the "Garage") at or near 16th Street between Collins and Washington Avenues, Miami Beach;
and
WHEREAS, negotiations are proceeding on numerous agreements relating to the
development of the Hotel and Garage; and
WHEREAS, the LOI provides that if the agreements for the development of the Hotel and
Garage are not executed by the RDA and SMHC prior to December 15, 1995, the RDA or the City
may be responsible to reimburse SMHC for certain design expenses for the development of the Hotel
and the Garage; and
WHEREAS, due to, among other things, the work and time involved in connection with the
negotiation of numerous agreements, a bond issuance, bank financing and property acquisition related
to the Garage, the RDA, the City, SMHC and LHHC would like to execute the attached Amendment
to the LOI to extend the time by which the agreements must be executed and when liability for
reimbursement of design expenses might apply; and
WHEREAS, Section 12(h) of the LOI provides that the LOI may be amended by a written
agreement executed by both of SMHC and the RDA.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY as follows:
1. The Chairman and Secretary are authorized and directed to execute the attached
Amendment to that certain Letter ofIntent by and between the Miami Beach Redevelopment Agency,
the City of Miami Beach, Florida, St. Moritz Hotel Corporation and Loews Hotels Holding
Corporation.
2. This Resolution shall take effect immediately upon its passage.
ATTEST:
CRETAR~
PASSED AND ADOPTED this 6th day of
FORM APPROVED
REDEVELOPMENT AGENCY
GENERAL COUNSEL
By 1Jt~
Date l \/'50/ OJ S
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2
Miami Beach
Redevelopment Agency
1700 Convention Center D..:ve lQ
Miami Beach, Florida 33132
Telephone: (305) 673.7193
Fax: (305) 673.7772,
REDEVELOPMENT AGENCY MEMORANDUM NO. 95-74
DATE: December 6, 1995
TO: Chairman and Members of the
Miami Beach Redevelopment Agency
A
FROM: Jose Garcia-Pedrosa /1/f
Executi ve Director /:W
V
SUBJECT: A RESOLUTION AUTHOR~ZING AND DIRECTING THE CHAIRMAN AND
SECRETARY TO EXECUTE AN AMENDMENT TO THE LETTER OF INTENT
WITH ST. MORITZ HOTEL CORPORATION
RECOMMENDATION:
It is recommended that the City Commission/Redevelopment Agency
Board approve the attached Resolution amending the Letter of Intent
(LOI) to extend the date of signing of the Development Agreement
and other relevant documents with St. Moritz Hotel Corporation from
December IS, 1995, to no later than January II, 1996.
BACKGROUND:
The Miami Beach Redevelopment Agency's (RDA's) negotiating team and
St. Moritz Hotel Corporation have been diligently pursuing closure
on the convention hotel legal documents. The RDA' s outside
counsel, Squire, Sanders and Dempsey, have prepared drafts of the
hotel lease agreement and the garage development agreement. A
major negotiating meeting will occur in New York on December 11
through December 13, 1995.
The Negotiating Team focused on resolving major substantive points
prior to full drafting of the agreements.
~()UTti f)()I~r:
I)edevel{)pment f)istrict
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l?edevel()pment [)istJict
1.
ANALYSIS:
The Letter of Intent, signed on May 3, 1995, contained a deadline
of December 15, 1995, to complete negotiations and have all
documents prepared.
This deadline has proved to be too ambitious due to the complexity
and enormity of the agreements necessary to conclude the deal. An
extension is necessary to provide sufficient time for a closing.
In the meantime, Loews will continue to expend funds for the design
development effort in order to remain on schedule to permit a
construction start in late spring and an opening by late 1997. As
a result, Loews will be committing out of pocket funding far beyond
the $1.6 million envisioned in the May LOI when a December 15, 1995
closing was presumed and is requesting an increase in the City's
potential liability to cover these costs. The negotiating team has
reached an agreement with Loews to defer this request until the
City Commission/Redevelopment Agency meeting on January 10, 1996 at
which time the following should have occurred:
1) Loews will have a commitment letter for its $66 million
financial package with Bankers Trust.
2) The negotiating team will have concluded the major portion of
the ground lease during negotiation meetings in New York from
December 10 to December 13, 1995.
3) The hotel development agreement will have been drafted and
reviewed and in final stages of completion.
Therefore, at the January 10, 1996 Commission/Redevelopment Agency
meeting, the negotiating team expects to be able to better advise
the Commissioners/Redevelopment Agency Board of the anticipated
timetable for closing the deal, and the increased design
development costs that will be incurred through closing to assure
a late spring start.
Additionally, Rod Eisenberg has served a Notice of Appeal regarding
the Summary Judgment granted to the City and the County in the
lawsuit he had filed contesting the establishment of the City
Center Redevelopment Area.
2
Because the December 15, 1995 deadline lS upon us, the
Administration recommends an interim extension of the LOI deadline
to January 11, 1996, with the understanding that prior to January
11, 1996, terms for the actual extension can be negotiated and
brought back to the Commission/RDA Board.
REVENUE IMPACTS TO THE CITY:
The signing of the Agreements will trigger the extra one penny bed
tax. The Administration had contemplated the signing of documents
in December when the resort tax budget was prepared earlier this
year. For this reason, the Administration is very concerned about
the extent of any delay.
The postponement of the deadline will cause the City's projected
revenues to be reduced from the $1.6 million estimated in the
City's budget for this fiscal year. One half of this money is
committed to funding of the debt service for the hotel, se that the
diminution of potential revenues to the City is actually less.
This "paper impact" to the City must always be evaluated in light
of the negative consequences of rushing to negotiate to an
artificial deadline, resulting in less favorable financial terms to
the City. Nevertheless, the Administration will push aggressively
to minimize any delays.
CONCLUSION:
The City
amendment
team.
Commission/Redevelopment Agency should approve the
to the Letter of Intent as recommended by the negotiating
JGP /HSM : j ph
Attachments
a
AMENDMENT
This is an Amendment (the "Amendment" ), dated as of December 6, 1995, to that certain
Letter oflntent (the "LOI"), dated as of May 3, 1995, a copy of which is attached hereto. Both the
Amendment and the LOI are by and between the Miami Beach Redevelopment Agency, a public body
corporate and politic (the "RDA"); the City of Miami Beach, Florida, a Florida municipal corporation
(the "City"); St. Moritz Hotel Corporation, a Florida corporation ("SMHC"); and Loews Hotels
Holding Corporation, a Delaware corporation ("LHHC").
RECITALS
WHEREAS, SMHC was the winning bidder in response to the Convention Center Hotel
Request for Proposals; and
WHEREAS, the RDA, the City, SMHC and LHHC executed the LOI, pertaining to, among
other things, the development of an approximately 800 room hotel (the "Hotel") at and near 16th
Street east of Collins Avenue, Miami Beach and an approximately 800 car garage (the "Garage") to
be located at or near 16th Street between Collins and Washington Avenues, Miami Beach; and
WHEREAS, negotiations are proceeding on numerous agreements relating to the
development of the Hotel and Garage; and
WHEREAS, the LOI provides, among other things, that if the agreements for the
development of the Hotel and Garage and related matters are not executed by the RDA and SMHC
prior to December 15, 1995, the RDA or the City may be responsible to reimburse SMHC for certain
design expenses for the development of the Hotel and the Garage; and
WHEREAS, due to, among other things, the work and time involved in connection with the
negotiation of numerous agreements, a bond issuance, bank financing and property acquisition, the
RDA, the City, SMHC and LHHC would like to amend the LOI to extend the time by which
agreements must be executed and liability for reimbursement of design expenses might apply; and
WHEREAS, Paragraph 12(h) of the LOI provides that the LOI may be amended by a written
agreement executed by both of SMHC and the RDA.
NOW THEREFORE, in exchange for the mutual promises contained herein, and other good
and valuable consideration, the receipt and adequacy of which is hereby conclusively acknowledged,
the parties agree as follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as a part of this
Amendment.
2. MODIFICATIONS.
a) Paragraph 11 of the LOI, entitled "Design Development Expense
Reimbursement", is amended as follows:
1) All references to "December 15, 1995" are changed to "January 11,
1996."
2) All references to "December 31, 1995" are changed to " January 31,
1996."
b) Paragraph 12(f) of the LOI, entitled "Termination" is amended as follows:
The reference to "December 15, 1995" is changed to "January 11, 1996."
3. OTHER PROVISIONS OF LOI.
The other provisions of the LO! are unchanged.
4. RA TIFICA TION OF LOI.
The RDA, the City, SMHC and LHHC ratify their agreement with the terms
of the LOI, as modified by this Amendment.
5. GOVERNING LAW.
This Amendment shall be governed by and construed in accordance with the
laws of the State of Florida, without reference to principles of conflicts of law.
6. HEADINGS.
Headings in this Amendment are only for convenience, are not a substantive
part of this Amendment or the LOI and do not affect the meaning of any provision of this Amendment
or the LOI.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their appropriate officials.
By:
CH REDEVELOPMENT AGENCY
ATTEST:
2
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REDEVELOPMENT AGENCY
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CITY OF MIAMI BEACH
By:
elber, Mayor FORM APPROVED
LEGAL 91pT.
By1/l(~ WJ-
Date LY>()/~5 'J
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Date:
ST. MORITZ HOTEL CORPORATION
By:
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Date:
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LOEWS HOTELS HOLDING CORPORATION
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Print Name and Title
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LETTER OF INTEHJ:
May~, 1995
Re: Loe~g ~ami Beach Hotel
In February 1993, the city center/Hiscoric convention Village
Redevelopment and Revitalization Area was officially established by
the adoption of a Redevelopment plan (the "Redevelopment Plan").
The Redevelopment plan was the resul t of the combined effort of' the
City of Miami Beach (the "City"), Miami Beach Redevelopment Agency
(the "Agency"), Mecropolitan Dade County and the State of Florida.
The Redevelopment Plan. represents the effort and commitment of the
Agency and the City to foster the development of convention quality
h?tels, ancillary improvements and facilities, and necessary
l~nkages co the convention Center. Pursuant to this Plan, the
Agency has acquired the land, known as site I-A, which it has
agreed to make available for a convention headquarters hotel which
will serve as the cornerstone of the Redevelopment Plan.
In furtherance of the Redevelopment plan, the City published
a Request for Proposal ("RFpn) dated November 29, 1993.
In a resolution dated July 21, 1994, after a public review
process, the Agency selected St. Moritz Hotel Corp. ("SHEen) from
among the groups which submitted proposals pursuant to the RFP and
directed representatives of the Agency to negotiate the terms under
which SMHC would develop, construct, own and operate the convention
headquarters hotel referred to above (the "Hotel") in accordance
wich the requirements of the RFP. This letter sets forth the
understanding reached as a result of such negotiations.
l. The Hocel
The Hotel will be an approximately aOO-room headquarters
convention hotel to be constructed on Site I-A described in the
RFP. The Hotel will be a first class, upscale property with
suitable convention, conference and meeting space and appropriate
amenities meeting the standards of the Loews Hotel chain and those
standards set forth in the Ground Lease (as hereinafter defined) .
It will be developed based upon the concept presented in SMHC's
response to the RFP, dated March 7, ~994, subject to the definitive
agreements to be entered into between the Agency and/or city (as
applicable) and SMHC (collectively, the "Agreements"), the form and
substance of which shall be acceotable to SMHC's lender, SMHC, the
Agency, the City and their re;pective counsel. SMHC shall be
obligated to develop, construct, furnish and equip the Hotel in
accordance with plans established pursuant to the Agreements which
shall include approximately 190 on-site parking spaces. The H~tel
shall be constructed in accordance wich all applicable zon~ng I
1
DO':'Q47S8.DOCS.~aOl15lM6M0S_D~tON.
building, environmental, safety and other governmental laws, rules
and regulations.
2. Costs and Financinq of the Hotel
The preliminary estimated budget for the development of the
Hotel, and the financing sources, are as follows:
a . COSTS
1.
Hard costs, such as excavation,
construction, building materials,
contractor fees, etc.
$ 66,400,000
2.
Hotel furniture and equipment
19,500,000
3.
Soft costs such as architectural and
design fees, consultants, legal
fees, hotel operator technical ser-
vices and pre-opening costs and
services, developer fees, site manage-
ment fees, pre-opening insurance,
and initial working capital
17,600,000
4.
Financing costs such as construction
interest, commitment fees, other
bank costs and fees, legal fees,
etc.
6,500,000
subtotal:
$li0 I 000,000
s.
Operating deficit guarantee .
10,000,000
6.
Mortgage debt service guarantee
15,000,000
$135,000,000
Total:
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2
b . SOURCES
1.
2 .
3.
4.
$ 66,000,000
First mortgage
Initial equity provided by SMHC,
which will be funded prior to first
mortgage funding
15,000,000
Agency's share of project costs
(exclUSive of land valued at
$24,000,000 and other Agency and/or
City Actions described below),
which will be funded as described
below
29,000,000
~O,OOO,OOO
subtotal:
5.
Operating deficit guarantee provided
by SHEC'S parent, Loews corporation,
for the benefit of and as required
by first mortgage ~ender
Mortgage debt service guarantee
provided by SMHC's parent, Loews
corporation, for the benefit of and
as required by first mortgage
lender
~5,000,OOO
$1.35,000,000
10,000,000
Total:
c _ FUNJ2ING OF AGENCX'S sHAE,g
At the time of, or prior to, the e)(ecution of the
Agreements, the Agency will have taken all action required by
law to authorize, and will have sold and issued, in the manner
to be set forth in the Agreements, $29,000,000 of bonds or
will have incurred other debt resulting in net available funds
of $29,000,000 (which bonds or debt may be restricted to uses
permitted by law, nOW or at the time of such funding), less
the net amount of U.S. Department of Housing and Urban
Development Section 108 loan proceeds available for
development of the Hotel (which funds the Agency shall use its
good faith efforts to obtain, and which funds shall not be
restricted to the construction of the public areas of the
Hotel) .
The Agreements will provide that such funds shall be
disbursed to SMIIC' s construction lender on or about the
commencement of construction, together with SMIIC's Funded
Equity (as hereinafter defined), and shall be applied in
accordance with applicable la"s. The application of funds in
accordance with applicable la"s shall be supported by
00': (O'I7SI_00c:s.~IOl.1.S111SMOS_DIsntIlJllTI~.
:3
appropriate documentation. The public areas of the Hotel
shall be owned and operated in accordance with all applicable
laws.
3. Aqencv and/or City Actions
At the time or, or prior to, the execution of the Agreements,
the Agency and/or City, as applicable, will have taken all action
required by law to authorize, and will have sold and issued, in the
manner to be set forth in the Agreements, bonds in a suffic~ent
amount, or. will have incur~ed other debt in a sufficient amount, to
ensure that the following actions will be substantially comoleted
prior to the opening date of the Hotel as defined in the.Hotel
Management Agreement (as hereinafter defined) (the "Hotel Opening
Date n). The Agreements will include a timetable commitment for the
completion of these actions as well as a requirement that they be
implemented in coordination with SMHC.
(a) Municioal Garaae: As provided in Section 4 of this
letter.
(b) Site Improvements and Bro~dwalk: The Agency and/or
City shall provide up to $3,000,000 which shall be applied
solely to the cost of legally permissible exte::::-ior
improvements to the public areas and public access areas
relating to the Hotel and.to that portion of the construction
of an Agency and/or City owned and maintained exteusion of the
existing boardwalk or broadwalk (subject to applicable
environmental laws) on or immediately east of Site I-A.
The Agency and/or City shall also be responsible
maintenance of the beachfront adjacent to the Hotel
construction and maintenance of the boardwalk or broadwalk
21st Street to the northern boundary of Lummus Park.
In addition, the Agency and/or City shall use good faith
efforts to cause the implementation and completion of the
previously planned State of Florida streetscape improvements on
Collins Avenue (A1A) from Lincoln Road to 15th Street and
connecting to Ocean Drive, so that these improvements are completed
prior to the Hotel Opening Date. SMHC will work with the Agency
and/or City in this regard.
for
and
from
The Agency and/or City shall perform the foregoing actions ~n
accordance with the standards set forth in the Agreements.
4. Municipal Garaae
(a) AqenCV or City to Build Garage: The Agency or City
shall be responsible for the construction and maintenance (for
so long as the land subj ect to the Ground Lease and the
improvements thereon are operated as a hotel or the parking
4
DO':[O.7S8.DOCS.~eO~lSJMEMOS_OtstRIBOTION.
spaces are required for c.he use of such land a...'1d the
~rnprovement.s t.hereon by SMHC under applicable law) of an
approximately BOO-car municipal garage ("Garage") on a Citv-
owned site within an area bounded by Washington and Collins
Avenues between 15th and 17th Streets, including extension of
16th Street. leading to the Hotel main entrance across Collins
Avenue. The Agency and/or City shall perform the foregoing
actions in accordance wit.h the st:andards set. forth in the
Agreements. SMHC shall act as developer of the Garage for a
fee of 3% of the project cost, plus out-of-pocket expenses,
pursuant to a development. agreement mutually satisfactory to
the parties. In addition, any retail or accessory uses
included in the Garage structure will be compatible with ~~d
enhance the Hotel and its vicinity in accordance with the
standards set forth in the Agreements. The Garage will be
completed and ready for use not later than the anticipated
Hotel Opening Date. The Agency and/or City shall not, for so
long as the Hotel is operated as a hotel, increase tbe height
of the Garage so as to adversely affect the useful enjoyment
of the hotel swimming pool.
(b) Garage operator: The AgencY or City shall designate
the operator of tne Garage, which designee shall be selected
from a list of nationally recognized garage operators mutually
satisfactory to the AgenCY and/or City and SMHC, and which
operator shall be subject to the a~proval of SMHC.
(c) Hotel Use: Approximately 560 parking spaces shall
be available for priority use (as defined below) by the Hotel
(including provisions for Hotel valet parking arrangements) .
Hotel user parking rateS shall be established by the. garage
operator, subject to the Agency's or City's approval,
provided, however charges to SMHC for valet parking shall not
exceed 50%- of the self-park rate and charges for Hotel
employee parking shall not exceed the lower of (i) monthly
parking rate, (ii) 50% of self-parking rate or (iii) contract
parking rate. SMHC shall utilize the available parking spaces
at the Garage prior to utilizing other off-site parking
facilities.
"Priority useM shall mean tbe garage operator shall set
aside solely for Hotel use such number of the allocated
parking spaces as Hotel operator shall request from time to
time upon not less than 24 hours prior notice to the garage
operator.
(d) Hotel Garaae Rent.: SMRC shall pay annual rent,
payable monthly, equal to $500,000 for the use of the 560
priority Hotel parking spaces, subject to paragraph (el, below
(the wGarage Rent") .
5
DO': (Q47S..DOCS.~aQ11S1MEMOS_OI~~'
(el Facility Usaae Payment: In consideration of SMHC's
agreement co utilize the Garage on a requirements basis, as
provided above, SMHC shall be paid mont.hly a percent.age of the
annual grosS revenues of the garage as follows (the "Facility
Usage payment~), the first. $500,000 of which shall be applied
as a credit against the Garage Rent each year:
(i) 41.7~ of annual gross revenues with respect to
the first $1,200,000 of gross revenues; and
(ii) 28% of annual gross revenues in excess of
$~,200,OOO.
(f) Limitation on Losses: In the event cumulative
Garage Rent payments less the cumulative Facility Usage
Payments made by SMHC exceed $1,000,000, the Facility Usage
Payment will be the greater of $500,000 and the amount
calculaced in accordance with subparagraph (e) above_
(g) Street Extension: The City shall extend 16th Street
from Washington Avenue to Collins Avenue.
(h) Enforceability: Appropriate provision will be made,
by easement or other covenant, to ensure the enforceability of
the Hotel's rights to the Garage. The Agency will ensure that
the development of so-called Phase 8, the area on the north
side of 16th Street, will be compatible with and enhance the
Hotel and its vicinity.
S. Ground Lease
The land comprising Site I-A, on which the Hotel will be
constructed, will be leased to SMHC by the Agency pursuant to a
ground lease (the "Ground Lease") having the following provisions:
(a) Title: The execution of the Agreements by SMIle will
be conditioned upon fee title to the land being satisfactory
to SMHC. After execution of the Agreements, the Agency will
not further encumber such title to the land except with
respect to those matters (such as utility easements and non-
monetary reciprocal easement agreementS) reasonably approved
by SMHC and which do not adversely affect che operation or
development of the Hotel as called for herein. Title to the
existing improvements on the land will be conveyed co SMHC on
an "as is. basis at the time of execution of the Ground Lease.
(b) Term: 99 years
$500,000 per year commencing on the
Base Rent shall be increased every ~o
Opening Date in the same proportion as
in the then appraised fair market value
(c) Base Rent:
Hotel Opening Date.
years from the Hotel
the increase, if any,
6
009: (047sa.DOCS_~8011S1~_OI~~'
of the land (on a vacant and unimproved basis) bears to a base
value of $24,000,000, subject to a cap for each escalation
equal to the applicable change in the GDP implicit price
deflator index. In no event shall Base Rent during an
escalation period be less than the Base Rent during the prior
period.
(d) Additional Rent: Net Cash Flow after Deb~ Service
(as hereinafter defined) shall be diseributed annually
pursuant to the following Tiers:
Tier 1. 100% to SMEC until funded operating shortfall
reserve (up to $10 million) plus interest at
15~ per annum as calculated from the later to
occur of the date such amounts are funded and
the Hotel opening Date (cumulative and
compounded) is repaid.
Tier 2. 100~ to SMHC until SMHC receives a 15% per
annum cumulative (not compounded) preferred
return on the $15 million initial equity as
calculated from the later to occur of the date
such amounts are funded and the Hotel Opening
Date (the ~Funded Equity.) .
Tier 3. 100% to SMHC as interest at 15~ per annum
cumulative (not compounded) on funds provided
by SMHC to meet development cost overruns,
subject to a cap of $11,000,000, and up to $5
million of additional operating shortfalls, as
calculated from the later to occur of the date
such amounts are funded and the Hotel Opening
Date.
Tier 4. 80% to SMHC and 20% to the Agency until SMHC
has (i) received 25~ Internal Rate of Return
(as such tertn is defined in the Agreements,
hereinafter referred to as "IRR") (cumulative
and compounded return on and return of), on
its Funded Equity ($15,000,000) as calculated
from the later to occur of the dace such
amounts are funded and the Hotel Opening Date,
not including the shortfall reserve, actually
funded and (ii) been repaid cost overruns and
operating shortfalls referred to in Tier 3.
Tier 5.
20% to SMHC and 80~ to the Agency until
Agency has received (as calculated from
Hotel opening Dace and including Base Rent
Additional Rent actually paid) an 8%
(cumulative and compounded return on
the
the
and
IRR
and
7
DO?: (().6 75a . DOCS. KIJ.J,aoUS 1 MlI2'OS _DXsnnO'I'I05.
...... -...
return of) its land at a fixed value of
$24,000,000.
85% to SMHC, 15% to the Agency.
(e) Non-Subordination: The Ground Lease will not be
subordinated to the first mortgage or to any other financing
agreements.
Tier 6.
(f) Real Estate Taxes: The Hotel, including the land,
will be subject to ad valorem real estate taxes levied by the
City and other governmental authorities in accordance with
law. SMHC will be entitled to the benefit of any tax
abatements and reductions as are, or may become available
under applicable law, as if it were the fee owner of the land.
. (g) Environmental Indemnity:: The Agency will provide an
indemnity to SMHC with respect to the remediation, as
described in the Agreements, of environmental matters
affecting the land and the improvements thereon which exist
prior to the execution of the Ground Lease, except as to those
matters disclosed to SMHC in the environmental audits provided
to or obtained by SMHC prior to the execution of the
Agreements.
SMIle will provide an indemnity to tbe Agency with respect
to the remediation, as described in the Agreements, of
environmental matters affecting the land and the improvements
thereon arising from and after the execution of the Ground
Lease and/or relating to the mitigation of the environmental
matters disclosed to SMHC in the environmental audits provided
to or obtained by SMHC prior to the execution of the
Agreements.
No limitations of liability will apply with respect to
the foregoing indemnities.
(h) Financinq: Any financing secured by the Ground
Lease or Hotel, and any refinancings thereof, will be provided
by institutional financing sources or, subject to the "Deemed
Debt II provisions herein, an affiliate of SMHC. Without
obtaining the Agency'S consent, the principal amount of the
initial financing or any refinancing of the Hotel shall not
exceed Deemed Debt, as hereinafter defined~ The Agency will
not be call~d upon to subordinate its interest under the
Ground Lease in connection with any financing or refinancing.
Loews Corporation (or an entity acceptable to the first
mortgage lender (s) and the Agency) shall furnish a completion
guaranty for the benefit of the construction lender and the
Agency.
8
OO':(047S4.00cs.~.OllS]HEH05_0~~.
(i) Pu~chase Ootion, while the Agency's Tax Increment
Revenue Bonds, series 1993 (the "Bonds") have not been
retired, SMHC will have an option to purchase the land at a
price equal to the greater of (1) the then appraised fair
market value of the Agency's interest in the land based upon
an arm's length sale to a third party buyer not affiliated
with SMHC taking into account the then current state of title
as well as the continued existence of the Ground Lease and tee
Hotel Management Agreement as then in effect. or (2) t;,e
amount determined as follows:
a. for all fiscal years until Additional Rent payments
have reached Tier 5: an amount to return to the
Agency an 8% IRR (which calculation will include
Base Rent and Additional Rent payments made to the
Agency) on the land value fixed a~ $24,000,000-
b. for fiscal years in which Additional Rent is being
paid at Tier 5, but not Tier 6' an amount equal to
the greater of (i) an amount to retUr1l to the
Ag~~CY an 6% IRR (which calculatiOn will include
Base Rent and Additional Rent payments made to the
Agency) on the land value fixed at $24,000,000 or
(ii) a ten times multiple of the average Base Rent
and Additional Rent paid to the AgenCY during the
prior three full fiscal years.
c. For fiscal years in which Additional Rent is being
paid at Tier 6, an amount equal to a ten times
multiple of the lesser of (i) average Base Rent and
Additional Rent paid to the AgenCY during the prior
three fiscal years, or (ii) average Base Rent and
Tier 6 Additional Rent which would have been
payable to the Agency during the prior three full
fiscal years determined as if payments were due in
Tier 6 for each of such three fiscal years.
>?rovided, however, that (x) the purchaSe price with
respect to the exercise of the purchase option after December
~, 2004 shall be compuced pursuant to (i) (2) above (without
regard to (i) (~) above) if at least ~22 dayS prior to the
exercise of such option, SMHC shall have given the AgenCY
notice of intent to exercise its purchase option and
unconditionallY prepaid rent under the Ground Lease in an
amount sufficient to redeem the Bonds in accordance with their
terms prior to the exercise of such purcr~se option, which
amount shall upon exercise of such purchase option be credited
against the purchase price thereof, and (y) the purchaSe price
with respect to the exercise of the purchase option at any
time after the holders of the Bonds have been paid in full all
principal of and interest thereon and the Bonds have be~~
retired (other than as a result of (x) above) shall be
9
00': [04.7Sll.DOCS.K!.ullOl1.S111D'QS_D~oer.
computed pursuant to (i) (2) above (without regard to (i) (1)
above) and the requirements of (x) above shall not apply to
the exercise of such purchase option.
. The parties acknowledge that clause (1) of this paragraph
(1) has been included based upon the present interpret.ation of
Section 144(C) (2) or the Internal Revenue Code (the "Code") in
relation to the Bonds by counsel to the Agency. The p~ties
agree that such clause (1) shall not apply if at any time SMHC
provides an opinion of tax counsel knowledgeable with resoect
to the tax aspects of tax-exempt bonds, in form and subst~nce
satisfactory to the Agency and its counsel, to the effect that
the exercise of the purchase option at the price determined
pursuant to clause (2) will not adversely affect the exclusion
from grosS income for federal income tax purposes of interest
on the Bonds.
In the event, within 12 months following the exercise by
SMHC of the purchase option (the date of exercise being called
the "Exercise Date"), SMHC shall consummate the sale of the
Hotel to an unaffiliated third party (a nPost-Option Sale")
with whom SMHC had reached an agreement in principle,
evidenced in writing, at any time during the 6-month period
prior to the Exercise Date, the Post -Option Sale shall be
deemed to have taken place on the Exercise Date and the Net.
Proceeds shall be distributed as Net Proceeds' in accordance
with paragraph 7, subject to a credit in favor of SMHC in an
amount equal to the option purchase price theretofore paid to
the Agency.
(j) Lease and Transfer of Hotel Pu.l:!lic eas. In
consideration of (1) the variouS taxes generated, and to be
generated, by the ownership and operation of the Hotel, (2)
the support of the convention Center by the Hotel pursuant to
the agreement described in paragraph (1) below and (3) $MHC
providing the Funded Equity ($15,000,000), the AgencY shall
(~) lease to SMHC for a term coterminous wi th the Ground Lease
all of the public areas of the Hotel owned by the ~genCY and
(B) upon consummation of the purchase option described in
subparagraph (i) above, transfer all of ics right, title and
interest in the Hotel, including the public areas thereof, to
SMHC.
(k) Right of First Refusal. In che event the Agency
shall desire to accept an offer for sale of all of its
interest in the land and the Hocel, including the public areas
of the Hotel, SMHC shall have a right to purchase such
interest upon the sa~e terms and conditions as the same are
offered and in accordance with the Agreements. The Agency
shall not sell less than its entire interest in the land and
the Hotel.
10
PO,' (IH. '7S8 . xxx:s ./1D.180llS] l1D'OS _ orsnu.atJT:X:CR(.
(1) Convention Cente~: SMHC will enter into an
a~reement with the city pursuant to which the improvements
w~ll be operated as a hotel and rooms will be made available
to support Convention center eventS according to a formula to
be negotiated. The formula will cove~ the number of rooms
committed, rate structure, and timing of release of rooms f::-om
the City's rights pursuant to such agreement. This a~eement
will also provide for joint marketing arrangements between the
Hotel and the City and for the designation of the Hotel as a
primary supplier of hotel services to support the Convention
Center. The term of the agreement shall expire upon the
earlier to occur of (1) termination of the Redevelopment Plan
(without regard to any extensions thereof) or (2) the City's
fa:Llure to maintain the convention Center at its present
location in at least its present size.
(m) The Agreements will include customary provisions and
such other provisiOns mutually sacisfactory to the parties.
6. Definition of Net Cash Flow after Debt Service
"Net cash Flow after Debt Service" will be defined as "Hotel
Operating profitd after deduction of Debt Service.
"Hotel Operating Profit" will be defined as total revenue from
operation of the Hotel fronl and after the Hotel Opening Date
("Hotel Revenue") less all costS and expenses incurred in owning,
maintaining, conducting and operating the Hotel, other than Debt
Service, depreciation and amortization. These costs would include,
without limitation, all operating costs, such as wages and
benefits, the cost of goods, supplies, utilities and services,
repairs and maintenance, the Base Rent, all j{otel Operator fees and
payments, capital additions and improvements (other than those
funded through the reserve for addi tions to furnishings and
equipment, and except that no deduction shall be permitted for
capital additions and improvements which under the Agreements
require the consent of the AgencY, unless such consent has been
obtained or is deemed to have been obtained), all insurance
premiums, payments under equipment leases, real estate taxes and
assessmentS, and all paymentS into the reserve for additions,
substitutions and replacements to furnishings and equipment.
"Debt SerVice" will be defined as all payments in respect of
principal and interest on "Deemed Debt."
"Deemed Debt" will be defined as the principal amount of
$66,000,000 for so long as SMHC is the owner of the Hote~ and after
a sale of the Hotel by SMHC, the principa~ amount equal to the
greater of $66,000,000 or the actual principa~ amount not to exceed
75%- of the sale price (including assumed debt). To the extent
amounts of Deemed Debt are not held by an institutional financing
source, debt serVice shall be calculated assuming interest payments
11
00" (1)4 75. . DOCS .1'<IJ'.1' 0 1.J.S 1 M2MOS _ DISTIUlIurIOfI.
at t.he citibank, N .A. prime rate and principal payments in
accordance with a 20 year amortization schedule.
7. Application of Ne't proceeds from Sale of the Hot.el
In the event of a sale or refinancing, Net Proceeds would be
det.ermined as if such Net Proceeds were Net Cash Flow in t.he vear
of the sale or refinancing and will be distributed t.o SMHC or~its
successor and the Agency in accordance with the various Tiers, as
if such Net. Proceeds were Additional Rent. as provided in Paragraph
S(d). For purposes of calculat.ing Net Proceeds, the grosS proceeds
received from such sale will be deemed to include any amounts
received by an affiliated hotel operator for the transfer of any
interest of such hotel operator in t.he Rot.el Management Agreement.
Subsequent. t.o any sale or refinancing, Net Cash Flow would continue
to be distributed in the same manner as prior to the sale or
refinancing, but. aft.er t.aking into account the distribution of Net
Proceeds in payment of the various Tiers under Additional Rent to
SMHC or its successor and the Agency, as set forth above.
"Net Proceeds" will be defined as the proceeds from a sale
less debt repaid and all reasonable and cust.omary transaction
costs.
For purposes of this paragraph 7, a sale shall be deemed to
mean any transfer by operation of law or otperwise by SMHC of a
greater than 10% interest in the Hotel or the Ground Lease or any
transfer, by operation of law or otherwise, by SMIlC's parent, of a
greater than 10% equity' interest in SMHC, in either case to a
person who is not a controlled affiliate of the Loews Hotels chain~
Any transfer to a controlled affiliate of the Loews Hotels chain
will not constitute a sale. In addition, with respect to any
mortgage held by an institutional financing source, provision will
be made so that (i) the transfer to a purchaser at a foreclosure
sale, (ii) a deed in lieu of foreclosure or other transfer to a
mortgagee, or (iii) a sale by such mortgagee would not constitute
a sale.
8 . AgenCV APproval Riqhts
The Agreements will provide the following approval rights for
the Agency:
(a) plans: The Agreements will include preliminary
plans and specifications resulting from the expenditure of
Design Costs described in paragraph 11 (the "Preliminary
Plans") for the construction of the Hotel, a pre_construction
budget and development budget which will have been approved by
the Agency and SMHC jointly as part of the negotiation of the
Agreements. The budgets will include all of SMHC's (and it.s
affiliates') deV"elopment fees, reimbursables, payments to
affiliates and such other items reasonably requested by the
12
~o,: (O~7S'.DOCS.M2AlaOllSI~_o~ION.
Agency. The Agreements will include a timetable for
submission and approval of final plans. SMHC will provide to
the Agency a critical-path schedule prior to the start of
construction.
The Agency will have the right to approve material
changes. additions and alterations contained in the final
plans to the extent such final plans do not substantiallY
comply with the approved Preliminary plans. The Agency may
not object to changes required to comply with applicable laws
in sO far as such objection relates to cost overruns. Any
objections by the Agency to material changes. additions and
alterations will be reasonable and specific, and, at the
AgeDCY's option. may include alternate choices which would not
result in extra cost. If the Agency validly and appropriately
obJects to a change proposed by SMHC and such objection is
upheld following binding arbitration, if any, SMHC may, to the
extent permissible under applicable laws, nevertheless
implement the change, but any resulting budget overrun would
not be reimbursable as Additional Rent or otherwise, except as
provided for in the Agreements. If the Agency approves a
change but at a justified lower cost than proposed by SMHC,
ouly the cost approved by the AgeDCY (or as established
fqllowing binding arbitration) will be included in 5MBC' s
allowed overrun (see "J\ddi.tional Rent"). Notwithstanding the
AgenCY'S approval of anY planS or specifications and changes
thereto, SMHC will be required to comply with all applicable
laws with respect to the construction and operation of the
Rotel, including, without limitation. the obtaining of any
required conSeDts and permits required under applicable laws.
The AgenCY'S approval rights will not cover areas of
interior design and decor eXCept to the extent reflected in
the approved PreliminarY Plans. The Agency. will have the
right to inspect the project during construction and to have
an on-site representative at its sole cost and expense. SHHC
will not commence construction on a portion of the lIotel until
any required approval. of applicable final plans has been
obtained f~om the AgencY.
(b) Financial s~atement-'l.' SMHC will deliver to the
AgeDCY monthlY unaudited and annual audited financial
statemeDts. In addition, the AgenCY will be provided annually
with an information coPY of a projected income statement
reflecting the budget for the upcoming year. All financial
statements will be prepared in accordance with the Uniform
system of AccountS for Hotels (6th Revised Edition) ("USAlI") .
All financial statementS and books of account relating to
operation of the lIotel and/or determination of rent will be
avail3ble .for audit and examination. The AgenCY w1ll have the
right to challenge any expenditure that is not properly
calculated. which represents an overhead cost properly
13
00': (~7sa.DOCS_~SO~151~_DIstRIBOTIaM.
chargeable to the management company's home office (includi~g
subsidiaries and affiliates of the management company) as
opposed to the Hotel, or any costs fraudulently incurred.
provision will be made to attempt to ensure confidential
treatment of all information relating to competitive or
propriet.ary informat.ion. In the event the Agency's audit
shows that the Agency's share of Addit.ional Rent has been
understated by 3% or more, then SK~C will pay to t.he Agency
the cost of such audit in addit.ion to any deficiency payment.
required.
(c) Sale of the Hotel: A sale (as defined below) of the
Hotel or SMHC's interest in the Ground Lease shall be subject
to the Agency's approval. For purposes of this paragraph
a (c), a sale shall be deemed to mean any transfer by operation
of law or otherwise by SMHC of a greater than 50~ interest in
the Hotel or the Ground Lease or any transfer, by ooeration of
law or otherwise, by SMHC's parent, of a greate~ than 50%
equity interest in SMIlC, in either case to a person who is not
a controlled affiliate of the L-oews Hotels chain. Any
transfer to a controlled affiliate of the Loews Hotels chain
will not constitute a sale. In addition, with respect to any
mortgage held by an institutional financing source, provision
will be made so that (i) the transfer to a purchaser at a
foreclosur~ sale, (ii) a deed in lieu of foreclosure or other
transfer to a mortgagee, or (iii) a sale by such mortgagee
would not constitute a sale.
The Agency reserves the right to disapprove the sale of
the Hotel to a foreign government or instrume~tality thereof
or an entity controlled thereby.
Notwithstanding the foregoing, a sale of the Hotel to a
Qualified Purchaser (as hereinafter defined) shall be deemed
reasonable and not require the consent of the Agency.
A "Qualified Purchaser" for purposes of this section
shall mean a purchaser that: (i) is (a) a permitted Operator,
as hereinafter defined, or (b) a financial institution
(including, but not limited to, banks, life insurance
companies, or pension funds) or an institutional investor in
real property or interests in real property (such as a REIT,
REMIC or other public or private investment fund), which has
engaged a pemitted Operator; (ii) is not a foreign government
or instrumentality thereof or an entity controlled thereby;
and (iii) agrees to be bound by all the terms and conditions
of all the Agreements.
(d) New Manaqement Compan~: The Agency will have the
right to approve a new hotel operator (including the sale or
transfer of more than a 50~ interest in the current Hotel
Operator) . The Agency reserves the right to disapproV'e a
~4:
I)() 9: I ()4 75 8 ..oocs . KIJUI 0 ll51 P1Sl'PS _0 tSTRI3OTtO!l' .
hotel operator controlled by a fo=eign government or
instrumentality thereof.
Notwithstanding the foregoing, a change in the Hotel
Operator shall be deemed reasonable and not require consent of
the AgenCY if the. resulting hotel operator is a permitted
Operator. A "permitted operator" for the purposes of this
section is an entity which (i) is not a foreign government or
instrumentality thereof or an entity controlled thereby; and
(ii) together with its affiliates, (a) has been engaged in the
operation or management of hotels for at least five years and
has operated oX; managed during such 5 -year period at least one
convention hotel (i.e., 600 or more roomS and 40,000 or more
square feet of meeting space) which meets the quality
standards set forth in the Ground Lease, and (b) has a
national marketing operation under a national flag or has
.entered into an agreement with a hotel chain which has a
national marketing operation under a national flag.
(e) Riqht to Cure: The Agency will have the right to
cure defaults by SMHC under any mortgage, the gotel Management
Agreement and such other agreements as the parties may agree
upon, and all such agreements will so provide.
(f) Aporo'V'al Notice~: (1) Neither the Agency nor SMHC
shall unreasonably delay. withhold or condition any requested
approval required under a>>Y of the Agreements or this Letter
of Intent. If a request by SMHC relateS to the approval of
certain matters to be mutuallY agreed upon by the parties,
such as the sale of the Botel or change in the Hotel Operator
as aforesaid, and the AgenCY fails to respond witb.:in the
provided time period. then after the expiration of such time
period SMHC may resubmit its request to the Agency, and
provided such request (a>>d the envelope in which such request
is transmitted) conspicuously bearS the following legend, the
matter stated in the .request shall be deemed approved by the
;..gency if the A1Jency shall fail to disapprove such second
request within 3"0 days after receipt thereof:
n FAILURE TO RESPOND TO THIS REQUEST WITHIN 30 DAYS SHALL
CONSTITOTR AUTOMATIC APPROVAL OF = MATTERS DESCRIBED HEREIN
WITH RESPECT TO pl\RAGRAPH OF THE (NAME OF AGREEMENT]
-----"'
DATED ' BETWEEN [DESCRIBE PARTIES].
(2) It is contemplated that the Agreements will provide
for an expedited approval process during the period prior to
the Hotel opening Date.
(3) If the Agency'S or SMHC's approval is required under
any of the Agreements, upon disapproval of a request, ~he
disapproving party will provide written reasons support~ng
such party'S disapproval of such matter to the other party.
15
009: (().4. 7S 8 . DOCS .MIlU.80USl HDC6 _ oISn.IBQ't"IOlf .
Each party shall deliver to the other party its approval or
disapproval of any request for approval pursuant to the
Agreements within the applicable time period. If a party does
not provide a response to a request for an approval within the
time period set forth in the Agreements (whether such approval
request requires a single or double notice), such request
shall be deemed approved.
9. Hotel Manaqement AqreemenJ;.
Pursuant to a management agreement (the IIHotel Management
Agreement"), the Hotel will be operated by an affiliate of Loews
Hotels, Inc. ("Hotel Operator") as a first class, upscale
convention property in the Loews Hotels chain in accordance with
the following provisions:
(a) Manaqement: The Hotel will be managed by Hotel
Operator as part of the LoewS Hotels chain in accordance with
the standards set forth in the Ground Lease. Hotel Operator
will have exclusive authority to operate the Hotel in the name
and for the account of SMHC.
(b) Technical services: Hotel Operator will provide
technical services to assist SMHC in the construction,
furnishing and equipping of the Hotel. These services will
include, among other things, (i) review and approval of
architectural plans, plans for design and decor and plans for
furnishing all of which will be subject to Hotel Operator's
approval to ensure that the Hotel will meet the standards set
forth in the Ground Leasei (ii) develop criteria for furniture
and equipment and assistance in obtaining sources of sUPplYi
and (iii) assistance in coordinating purchases and
installation of furnishings and equipment - Hotel Operator
will be paid a one-time fee of $300,000 by SMHC for pro'V'iding
technical services, plus reimbursement of actual costs (which
will not include executive time) in providing technical
services during the pre-opening period. These costS and fees
are included in the estimated budget referred to in Paragraph
8 of this letter.
(c) pre-OOenina Services: Hotel Operator will provide
required services to 5MBC to prepare the Hotel for opening,
including among other things, (i) recruiting, training and
employing (in the name of SMHC) Hotel staff; (ii) pre-opening
marketing and advertising; (iii) negotiating contracts for
stores, concessions, leases, supplies and similar items; (iv)
assistance in obtaining necessary licenses and permits; and
(v) assistance in. purchasing initial operating supplies.
Hotel Operator will be reimbursed by SMHC for the cost of
providing these pre-opening services, including executive and
staff time, and out-of-pocket expenses. These costs and fees
16
00'; (0",751.DOCS .MIAJ,601J.Slt'lSl'OS_O~Ct(.
are included in the estimated budgec, referred to ~n paragaph
8 of this letter.
(d) Term: 30 years, with four renewal options of 15
years each and one final renewal option of 9 years. The Hotel
Operator may not, without the consent of the Agency, exercise
a renewal option unless the Agency has received an 8% per
annum cumulative (not compounded) return (i.e., Base Rent and
Additional Rent) OD the land value fixed at $24,000,000'
provided. however, that the foregoing requirement will ceas~
to be applicable once the Agency has received an 8% IRR
(including Base Rent and Additional Rent actually paid) on the
land value (fixed at $24,000,000) - Hotel Operator will have
the right to cure any shortfall with respect to the required
8% cumulative return by direct payment to the Agency, with any
such direct payment being deemed Additional Rent.
(e) Manaqement Fee:
~_ Base Fee: 3% of Hotel Revenue (calculated in
accordance with USAH) .
2. Grou~ Marketing Fee: 1.25% of Hotel Revenue.
The Group Marketing Fee represents payment for chain wide
advertising and marketing services provided by the Loews
home office, including o'V'erhead expenses of regional
sales offices. These services will include a central
sales and marketing operation supported by regional sales
offices and nationwide corporate advertising, marketing
and promotion programs. The Hotel Operator will provide
these services to the Hotel on the same basis as it
provides similar services to other hotels in its chain.
3. Reservation Fee~: The cost of centralized
reservation services provided by the Hotel Operator (or
through a third party service provider) shall be
allocated to the Hotel on a pass-through basis with no
mark-UP, but in no event shall ~he cost per booking
increase by more chan the system-wide increase charged to
other hotels in the chain.
4 . Franchise Fe~: upon the execution of a neW'
management agreement with a new hotel operator, such
hotel franchisor's usual and customary franchise fee, not
to exceed 2% of rooms revenue.
In addition, Hotel Operator shall be reimbursed fo~ out-
of-pocket expenditures reasonablY and properlY incurred :u1 the
course of the management and operation of the Hotel, as to be
set forth in more detail in the Hotel Management Agreement.
This would include, among other things, travel. and
17
D09, (O"7~' .IlOCS.KO.l'OllS1~_o~0lf.
entertainment, teleohone and other incidental expenses of
7mployees. in perfm:miog services actually and specifically
~ncurred ~n connection with the Hotel. In no event will out-
of-pocket expenditures include regula~ overhead expenses of
Hotel Operator's corporate facilities or compensation of home
office employees.
Notwithstanding the provisions of subparagraphs (e) (1)
and (e) (2) above, in the event a management agreement shall be
entered into with a new hotel operator, the combined Base Fee
and Group Marketing Fee shall not exceed 4.25% of Hotel
Revenues.
(f) puality Standard: Hotel operator will be required
to operate the Hotel as a first clasS, upscale convention
center hotel, including high-quality banquet, convention and
meeting services and facilities, multiple-food and beve~age
outlets, room service, bell service, laundry and valet
services, a health and fitness facility, and such other
services as are generallY provided by comparable upscale
convention center hotels of national repute, consistent with
the Hotel's physical facilities, and ill any event, the quality
of the Hotel operations and facilities (consistent with the
Hotel's physical facilities as they then exist) will be
comparable to not lesS than 3 or more than 5 conV'ention center
hotels (or such other comparable-hotels which the parties
shall mutually select pursuant to the Agreements) to be agre'3d
on by the parties. The comparable convention center hotels
will be reestablished by agreement between the parties every
10 years. The failure to operate the Hotel as required above
will constitute an event of default under the Ground Lease
and, if not cured, the Agency will be entitled to enforce this
provision with appropriate remedies. including termination
and/or cure rights. Notwithstanding the foregoing, Hotel
Operator will not be required to fund monies other than those
required to be in the FF&E Reserve for the replacement of
furniture and equipment necessary to meet the foregoing
standard. The foregoing sha~l not be deemed to diminish
SMHC's obligation to maintain the Hotel consistent with the
physical facilities of the Hotel as constructed pursuant to
the AgreementS.
<g) FF&E ReseEY~: Hotel Operator will be required to
establish a reserve for replacement and additions to furniture
and equipment initially funded at 1% of Hotel Revenue in the
first fiscal year, increasing to 2% in the second fiscal year,
3% in the third fiscal year and 4% in the fourth and each
fiscal year thereafter. The FF&E Reserve will be held in a
segregated account a>>d such funds shall only be used for
replacements and additions as aforesaid.
18
'009: (047sa.OOCSoKIAlIOUSIlQ'OS_OIstRrwrION.
(h) ~adius RestrictiO~' Without the prior consent 0:
tne Agency, Hotel Operator ",ill not operate a convention
property (i.e., 600 or more rooms and 40,000 or more souare
feet of meeting space; nereinafter. a "convention hotel"
(including any meeting space available to Hotel Operator
pursuant to a~y license or shared facilities agreements or
othe""ise)) within the area ("TerritOry") comprised of Oade
county north to and including the City of Ft. Lauderdale;
prov~ded however. . that this provision will in no event be more
restrictive (or shall no longer be applicable, as the case may
be) than any radius restriction (or lack of restriction)
regarding any other hotel no'" or hereafter located in the area
north of 5th Street and south of 44th Street receiving in
excess of $5.000,000 in value of AgencY or city funds (or
funds controlled thereby. including tax benefits). The
Hotel's radius restriction will terminate or exclude certain
properties as described belOW, as applicable, upon the
occurrence of any of the following events:
(i) if the Hotel is acquired by a purchaser who is
part of a hotel chain (i.e., t"'O or more hotels) or SMHC
purchases a hotel chain and in either event such chain
has one or more properties in the Territory. then such
properties shall be excluded from the radius restriction;
(ii) the purchase of the Agency'S interest in the
Hotel, including the land, by SMHC; and'
(Hi) the termination of the Redevelopmeut plan
(without regard to any extension thereof) .
10. site I-B
The AgenCY will enter into an agreement with SMHC with regard
to Site l-B (i.e., the lot presently owned by the AgenCY and the
second. lot if subsequentlY acquired by the Agency) providing
development on each lot will conform to applicable zoning laws a>>d
requests for proposals applicable to such development and such
other matters as the parties may determine, if any, by mutually
acceptable agreement.
J.1.. Qesian Development ExPense ReimbursemenJ;,
The parties ackno",ledge that SMHC will. of necessity, incur
significant out-of-pocket costS for professional architectural
design, engineering and other technical advice and services in
. connection with the design, construction and permitting of the
Hotel ("Design Costs.) prior to the execution of the Agreements.
In consideration of the foregoing, and in order to insure the
timely consummation of the transactions contemplated herebY, SMHC
and the Agency have agreed that such costS will be subject to
reiwbursement: as follows:
J.9
1)0' : (004. 7 5 a . DOCS .l'<I}U.1 0 US) MP<<'S _0 IS1JUl5UI:I 01(.
(a) if the AgenCY or the city, as applicable, has not,
prior to December 15. 1995, entered into binding agreements to
raise the funds necessary to meet its obligations as
contemplated by paragraph 2 (bl (3) and paragraphs 3 (a) and (bl.
then the Agency shalL no ~ater than December 31. H95, pay to
SMHC the Qualified Design costs (as hereinafter defined) ;
(bl if SMHC has not by December 15. 1995 entered intO
binding financial commitments to obtain the firsC mortgage
financing as contemplated by paragraph 2 (bl (~). SMHC shall
bear all Design Costs incurred by it; and
(cl if the Agreements are not in final form acceptable
to the parties for execution by December 15, ~995, for any
reason whatsoever, iucludin9 the mutual failure of SMHC and
the Agency . (or the City, as the case may bel to obtain
financing commitmentS pursuant to (al and (b) above. SMHC
shall bear one ha1f of the QUalified Design Costs and the
Agency shall, nO later than December 31, 1995, reimburse sMHC
for one half of the Qualified Design Costs.
The term "Qualified Design costs" shall mean Design Costs in
an amount not to exceed $1,600,000; provided, however, that if
between July ~5, ~995 and August ~, ~995 the Agency notifies SMHC
that it wishes SMllC to suspend further design work, QUalified
Design Costs shall not exceed $1,000,000.
J.2. General
(a) Arbitration, AnY controversy or claim relating to any
of the Agreements (or the breach thereof) will be settled by
arbitration in accordance with standards a>>d methodology to be
negotiated between the AgenCY and SMHC. The Agency and SMHC will
negotiate a>> expediced arbitration regime with respect to pre-Hotel
Opening matters, which regime may include the advance appointment
of a qualified arbitrator.
(b) LiabilitX' The Agreements will incorporate provisions
with respect to the limitation of SMHC'S, the Agency's and the
City's l1al:>iJ.ity thereunder, as applicable, mutuallY acceptable to
the parties, with the same providing for reasonable damages, but no
punitive damages.
(c) Definitive Aareement.;l.' Upon execution of this Letter of
Intent by SMHC a>>d approval of the terms hereof by the appropriate
Agency and city bodies. the AgencY's counSel will draft the
Agreements (other than the Hotel Management Agreement, agreements
to which the AgenCY or city is not a party and other agreetllents as
the parties may agree). The Agreements will contain, among other
things, representations, warranties, . conditions, covenants and
indemnities and the like typical in similar transactions, subject
to the terms hereof. The consummation of the transactions
20
00': (Q47Sa.oocs.l'IIuaouslt1liZ'CS-t)l~OII.
contemplated hereby is conditioned upon the negotiation and
execution of the Agreements with terms, provisions and conditions
mutually acceptable to SMHC, the Agency and the City as well as the
obtaining of all necessary financing and the satisfaction of the
parties with all other agreements and matters necessary or
desirable with respect to the transactions contemplated hereby.
The parties shall comply with all applicable laws, statutes,
regulations and requirements and performance by the Agency, the
City and SMHC under t~is Letter of Intent and the Agreements shall
be subject thereto." .
(d) Structure of Lessee: The entity constituting lessee and
developer will be MB Redevelopment, Inc., HCV, Inc., VRA, Inc. SMR
Redevelopment, Inc. and/or THR Redevelopment, Inc. or partnerships
of which one or more of the foregoing will be general partners.
The Agency and SMHC will cooperate in structuring the transactions
contemplated hereby accordingly.
(e) Assignment by Agency: In the event the Agency ceases to
exist, the Agreements will provide that the rights granted to the
Agency will inure to the benefit of the City and the City will te
bound to perform the obligations therein.
(f) Termination: Subject to the terms of Paragraph 11, this
Letter of Intent may be terminated by either party if the
Agreements have not ~een completed by December 15, 1995.
(g) Non-binding: Subject to the terms of Paragraph 11,
neither party shall have any legally binding obligation to the
other until such time as the Agreements are executed by all parties
thereto.
(h) This Letter of Intent may be amended by a written
agreement executed by both of SMHC and the Agency.
AGREED AND ACKNOWLEDGED:
5'"/3/'S
Date
MIAMI, BEACH REDEVE~! LO AGENCY
I ~! ~
I ~
By :" I, _' , ~ _
N J~"",,<,;~? \..:.;.l~
Titl : CI-v-d" ,-,:....,,;
S-/-3> h _'i'
Date
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
21
APl?ROVED AS VRK:. _.
BY'V~ ~
- Laurence Feingo ,
General counsel
APl?ROVED:
By:
~
Laurence Fe' gold,
city AttOrney
By
%>0" [O~ 7S1 ,DOCS .KIJU.ao1.1S1 "8I'O!U)tsnJlll1I1<*.
_ tf / JP/1c[
Da~e .
s/31'15
Date
5"/ ~ (~'S.
Date
//:/cV-/f~
Date ' , -
FO~~OVED .
~~
~te fIZY
22