Garage Dev. Agrmt #12
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GARAGE DEVELOPMENT AGREEMENT
BETWEEN
MIAMI BEACH REDEVELOPMENT AGENCY
AND
ST. MORITZ HOTEL CORP.
FOR THE
MUNICIPAL PARKING GARAGE
TABLE OF CONTENTS
GARAGE DEVELOPMENT AGREEMENT
RECITALS
1
ARTICLE I
DEFINITIONS.. ....... ......... ............. ................. ........ .......................... ... ....... ..... ..... ... ........2
1.1 "Architect( s)" .. ......... ......... ....... .... ...................... ...... .......... ......... ....... .......... .............2
1.2 "Architect's Agreement" ..........................................................................................2
1.3 "Authorized Officer" ................................................................................................2
1.4 "City". ... ..... ....... ........... ............... ...... ..... .............. ...... .... ................ ..... ..... ..... ... ... ... ..2
1.5 "Completion Date" ...................................................................................................2
1.6 "Construction Commencement Date"....... ...... ...... ...... ...... ......... ..... .................. ........2
1.7 "Construction Plans".................................................................................................2
1.8 "Consultant"..............................................................................................................2
1.9 "Contingency" ..........................................................................................................3
1.10 "Developer"............................................................................................................3
1.11 "Developer Indemnified Parties" ............................................................................3
1.12 "Development Budget" ............. ................ ........................................... ...................3
1.13 "Development Drawings" .. ....... .................... ........................ ..... .......... ............... ....3
1.14 "Development Functions".......................................................................................3
1.15 "Draw Request" ......................................................................................................3
1.16 "Engineers".............................................................................................................3
1.17 "Engineers' Contracts" ...........................................................................................3
1.18 "Event of Default" ..................................................................................................3
1.19 "Exhibits"................................................................................................................3
1.20 "Garage" .................................................................................................................3
1.21 "Garage Easement Agreement" . ....... ............ ........... ..................... ........ ............ ......3
1.22 "GC".......................................................................................................................4
1.23 "General Contractor's Agreement"........... ................. ......... ..... ..... ..........................4
1.24 "Governmental Authority or Authorities" ..............................................................4
1.25 "Hotel"....................................................................................................................4
1.26 "Hotel Development Agreement" ... ....... ............ ............. ............... .........................4
1.27 "Hotel Opening Date".............................................................................................4
1.28 "Improvements"......................................................................................................4
1.29 "Indemnified Parties"..... ......... .... ......... .... .... ........... ........... .......... ..... ........... ....... ....4
1.30 "Law or Laws" ...... ....... ....... ..................... ............. ........... ....... .......... ............... .......4
1.31 "Lease"....................................................................................................................4
1.32 "Owner"..................................................................................................................5
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TABLE OF CONTENTS (cont'd)
Page
1.33 "Owner Indemnified Parties".......................... ........................ ... ............ .......... .......5
1.34 "Person"................... .................................................................... ........................ ...5
1.35 "Premises" ..............................................................................................................5
1.36 "Project"............... ................. ......................... ............ .... .......... ....... ..... ..... ..... ...... ...5
1.37 "Project Costs"... ................... ..................................... .......... ......... ........ ....... ...........5
1.38 "Property"..... ....... .. .. ....... .... . . .. ......... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ....... ....... ... .. ..... ........... .. 5
1.39 "Resolution".. .... ... ........ .......... .... .............. ........ .... .......... .... ....... ..... ............ ...... ... ....5
1.40 "Retail Space". ....... ...... ................ .......... .......... ...... .......... ......... .......... .......... ... .......5
1.41 "Schedule of Performance".... ................ .... ............................... .......................... ....5
1.42 "Site Work". ......... ........ ....... ............ ..... .... ...... .................. ......... .................... ..........5
1.43 "Substantial Completion" ........................................................................................5
1.44 "Tenant"..................................................................................................................5
1.45 "Unavoidable Delay" ... .................... ................. ................ .......................... ............6
ARTICLE II
SELECTION AND RESPONSIBILITY OF DEVELOPER...........................................6
2.1 Development Functions .......... .................. ...... .... ........ ...... ....... ......................... ...... ..6
2.2 Limitation of Developer's Authority ......... .... ............ ............................................... 9
2.3 Review and Approval of Development Drawings and Construction Plans............ 10
2.4 Budget and Change Orders .....................................................................................10
2. 5 Vendors...................................................................................................................1 0
2.6 Scope of Review.................................................................................................... .11
2.7 Contract for Construction ................ .......................................................................11
2.8 Conditions Precedent to Commencement of Construction..................................... 1 I
2.9 Construction Liens ............................. .... ............................. ....... ................. ............12
2.10 Insurance During Construction... .... .......... ............ ................................................12
2.11 Warranties Extend to Owner.................................. .............................................. .14
2.12 No Additional Construction-No Substitutions...................................................... 14
2.13 Establishment of Completion Date .......................................................................14
2.14 Development Fee and Expenses ....... ....................................................................15
2.15 Architect's Agreement .......... ..... ............ .... ................. ....... .......... ........ ................ .16
ARTICLE III
ENVIRONMENTAL MA TIERS .................................................................................16
3.1 Hazardous Materials.............................................................................................. .16
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TABLE OF CONTENTS (cont'd)
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ARTICLE IV
CONSTRUCTION COSTS AND DISBURSEMENT PROCEDURES .......................17
4.1 Disbursements............... .................... .............. .......... ........ ......... ............ .................17
4.2 Draw Requests ...... .............................................. .......... .... ...... ..... ....... .......... ... ... ... .17
(a) Request for Disbursement..........................................................................l 7
(b) Application for Payment ............................................................................17
(c) Invoices..................................................................................................... ..18
(d) Lien Waivers............................................................................................. .18
(e) Affidavit.................................................................................................... .18
(f) Consultant's Report .................................................................................. ..18
(g) Architect's Report..................................................................................... .18
4.3 Disbursement Amounts.................................. ...... .......... ........ ............ ....... ........... ...18
4.4 Option to Disburse Funds to Contractors ...............................................................18
4.5 Conditions Precedent to First Disbursement ..........................................................19
4.6 Monthly Disbursements......................................................................................... .20
4.7 Requirements for Final Disbursement .................................................................. ..21
ARTICLE V
NOTICES.......................................................................................................................22
5.1 Service of Notices and Other Communications......................................................22
ARTICLE VI
INDEMNIFICATION AND LIMITATION OF LIABILITY.......................................24
6.1 Indemnification of Owner ....... ...... ................. ................. ....... ..................... ......... ...24
6.2 Indemnification of Developer ...... .............. ............... ........... .......... ........ .............. ...25
6.3 Contractual Liability .................. ....... .............. ....... .......... ....... ..... ... ..... ... ..... ... ... ... ..25
6.4 Defense of Claim, Etc. .............. ........ ............. .... ................. .......... ........ ................. .25
6.5 Notification and Payment....... ............... ....................... ......... ............. ........... ....... ..26
6.6 Limitation of Owner's Liability... ....... ............ ..................... ................ ................. ..26
6.7 Limitation of Developer's Liability............. ................. ................. ..... .................... .26
6.8 Survival...................................................................................................................2 7
ARTICLE VII
OWNER'S COVENANTS ............................................................................................27
7.1 Covenants of Owner... ......... ............... ............. ........... .............. ..... ..... ...... ... ... ... .... .27
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TABLE OF CONTENTS (cont'd)
Page
7.2 Additional Covenants of Owner.... ......................................... ................. ...............2 7
7.3 16th Street Opening. .............................................................................................. .27
ARTICLE VIII
EVENTS OF DEF AUL T AND REMEDIES ................................................................28
8.1 Events of Default by Developer ....................................... .......................................28
8.2 Remedies on Default............. ............. ........ .................. .......... ....... ........ ....... ... ... ... ..29
8.3 Events of Default by Owner...... ........ ......... ................................. ..... ..... ................ .29
8.4 Right to Enjoin Defaults or Threatened Defaults ...................................................29
8.5 Performance at Each Party's Sole Cost and Expense .............................................30
ARTICLE IX
ADDITIONAL REPRESENTATIONS AND COVENANTS ......................................30
9.1 Right of Access to Project ......................................................................................30
9.2 Maintenance of Existence................................. .......... ............. ..... ..... .....................30
9.3 Compliance with Laws ..................... ........ ...... .................... ....... .......................... ...30
9.4 Developer to Furnish Certain Financial and Disclosure Information;
Accounting and Financial Services......... ....................... ..... ............... ........ ......30
9.5 Covenant Regarding Authorized Representatives ..................................................31
9.6 Representations and Warranties of Developer ........................................................31
9.7 Representations and Warranties of Owner..............................................................32
9.8 Non-Discrimination................................................................................................3 2
9.9 Other Documents ............ ........................ ................... .......... ........ ....... ........... ...... ...32
ARTICLE X
MISCELLANEOUS ........... ............... ............ ........................... .......... .......... ....... ....... ...32
10.1 Survival.................................................................................................................3 2
10.2 Agreement Binding Upon Parties and Successors................................................33
10.3 Modification or Amendment ................. ................... ......... ................... ............... .33
10.4 Reasonableness of Approvals.. ............ ................................................................ .33
10.5 Counterparts..........................................................................................................3 3
10.6 Applicable Law.....................................................................................................3 3
10.7 Severability of Provisions.......... ................. ............. ................... ..........................3 3
10.8 Construction..........................................................................................................3 3
10.9 Gender and Number .... ............. ............... ........... ....... .... ....... ................ ............... ..34
10.10 Entire Agreement............................................................................................... .34
10.11 Waivers.............................................................................................................. .34
10.12 Corporate Obligations.... ............... .................... ............. ..... ........... .....................34
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10.13 Nonliability of Officials and Employees ............................................................34
10.14 No Partnership ........ .................................................................... ..................... ...35
10.15 No Third Party Rights.........................................................................................35
10.16 Certificates by Owner and Developer................................................................. 3 5
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TABLE OF CONTENTS (cont'd)
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Legal Description of Property
Development Drawings and Construction Plans
Draw Request
Schedule of Performance
List of Consultants
Development Budget
16th Street Opening
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GARAGE DEVELOPMENT AGREEMENT
THIS GARAGE DEVELOPMENT AGREEMENT (this "Agreement") is made
thisJclaay of Se..pkm bu" , 1996, between the MIAMI BEACH REDEVELOPMENT
AGENCY, a public body corporate and politic (the "Owner") and St. Moritz Hotel Corp., a
Florida corporation ("Developer") and the City of Miami Beach (the "City").
RECITALS
WHEREAS, Owner pursuant to Resolution No. 247-96 has authorized the
execution of this Agreement in order to accomplish the design, development and construction of
an approximately 800-space municipal parking garage (the "Garage") and certain retail space
(which shall not include interior finishes) (the "Retail Space"), together with all fixtures and
appurtenances to be located thereon or attached thereto in accordance with the Development
Drawings (as the same may be modified herein) that is sufficient to comply with Owner's
obligations under the Garage Easement Agreement (as hereinafter defined) (collectively, the
"Project"); and
WHEREAS, the Project will be constructed on an Owner-owned site within an
area bounded by Washington and Collins Avenues proximate to 16th Street in the City of Miami
Beach, Florida, as more fully described in Exhibit A attached hereto and made a part hereof (the
"Property"); and
WHEREAS, pursuant to the terms of that certain Garage Easement Agreement
(the "Garage Easement Agreement") of even date herewith between Owner and MB
Redevelopment, Inc., a Florida corporation ("Tenant"), an affiliate of Developer, the Garage will
service certain parking requirements related to the use of the property on which a convention
center Hotel (the "Hotel") will be developed and operated by Tenant in accordance with that
certain Hotel Lease Agreement (the "Lease") and Hotel Development Agreement (the "Hotel
Development Agreement"), each dated as of the date hereof, between Tenant and Owner; and
WHEREAS, Owner and Tenant entered into that certain Agreement (the
"Services Agreement") dated November 21, 1995, whereby Owner authorized Developer to
perform certain architectural and engineering services relating to the Project; and
WHEREAS, the Services Agreement, in accordance with its terms, will terminate
upon the execution of this Agreement; and
WHEREAS, Owner has determined that its best interests will be served by having
Developer act as developer of the Project with the responsibility of the coordination of the
completion of the design, development and construction thereof for Owner, pursuant to the terms
and conditions set forth in this Agreement; and
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WHEREAS, Developer and Owner desire to enter into this Agreement in order to
document in writing their respective rights and obligations related to the design, development
and construction of the Project.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Owner and Developer mutually covenant and
agree as follows:
ARTICLE I
DEFINITIONS
Unless defined in the Recitals above or elsewhere in this Agreement all
capitalized terms used herein shall have the meanings assigned to them in this Article I.
1.1 "Architect(s)" shall mean with respect to the Project the Person engaged
by Owner in accordance with the terms of the Architect's Agreement who is responsible for
developing the Development Drawings and the Construction Plans, and performing such other
work agreed upon in the Architect's Agreement.
1.2 "Architect's Agreement" shall mean with respect to the Project a written
agreement between Owner and the Architect(s).
1.3 "Authorized Officer" means (a) either the Executive Director of Owner
or any designee of the Executive Director on behalf of Owner, and (b) such officers or employees
of Developer designated by Developer by notice to Owner.
1.4 "City" means the City of Miami Beach, Florida.
1.5 "Completion Date" means a date which is no later than the Hotel Opening
Date.
1.6 "Construction Commencement Date" means that date which is no later
than sixty (60) days after the date on which a foundation permit for the Project is issued, but in
no event later than six (6) months following the "Construction Commencement Date" defined in
the Hotel Development Agreement.
1.7 "Construction Plans" means the Garage Construction Plans and
Specifications prepared by the Architect and Consultant for the Project, as the same may be
supplemented or revised from time to time during the construction period with the written
approval of Owner and in accordance with the provisions of this Agreement.
1.8 "Consultant" means the consultant designated by Owner to Developer in
writing for the purpose of reviewing the design, development and construction of the Project.
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1.9 "Contingency" means the amount set forth as a line item labeled
"Contingency" in the hard and soft construction costs portion of the Development Budget.
1.10 "Developer" has the meaning provided in the preamble to this Agreement.
1.11 "Developer Indemnified Parties" means Developer and its directors,
officers, shareholders, parents, subsidiaries, employees, successors, assigns, subtenants, agents,
contractors, subcontractors, experts, licensees, lessees, mortgagees, joint venturers, members,
partners of a partnership constituting a partner of Developer, trustees, partners, principals,
invitees and affiliates.
1.12 "Development Budget" has the meaning provided in Section 2.4 of this
Agreement.
1.13 "Development Drawings" means the GMP Design Development
Drawings and Outline Specifications dated September 10, 1996 prepared by the Architect for the
Project copies of which are attached hereto as part of Exhibit B.
1.14 "Development Functions" means those functions of Developer which are
set forth in this Agreement.
1.15 "Draw Request" means the written request submitted to Owner for
disbursement of a portion of the Project Costs (hereinafter defined) as more fully described in
Article IV, a form of which is attached hereto as Exhibit C.
1.16 "Engineers" shall mean with respect to the Project the Persons engaged
by Owner in accordance with the terms of the Engineers' Contracts who are responsible for
developing portions of the Construction Plans, and performing such other work agreed upon in
the Engineers' Contracts.
1.17 "Engineers' Contracts" shall mean with respect to the Project the written
agreements between Owner and the Engineers.
1.18 "Event of Default" means each event specified in Article VIII hereof.
1.19 "Exhibits" means the exhibits attached to this Agreement as the same may
be revised and modified from time to time with the written consent of the parties hereto, each of
which is made a part of this Agreement and incorporated into this Agreement as though fully set
forth herein.
1.20 "Garage" has the meaning provided in the Recitals to this Agreement.
1.21 "Garage Easement Agreement" has the meaning provided in the Recitals
to this Agreement.
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1.22 "GC" means the general contractor or construction manager selected by
Owner.
1.23 "General Contractor's Agreement" means the guaranteed maximum
price ("GMP") contract executed or to be executed by the GC and the Agency which sets forth
each party's rights and obligations with respect to the Project.
1.24 "Governmental Authority or Authorities" means the United States of
America, the State of Florida, Metropolitan Dade County, the City, Owner (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, Owner or over or under the
Premises or any portion thereof or any street, road, avenue or sidewalk comprising a part of, or in
front of, the Premises, or any vault in or under the Premises, or airspace over the Premises .
1.25 "Hotel" has the meaning provided in the Recitals to this Agreement.
1.26 "Hotel Development Agreement" has the meaning provided in the
Recitals to this Agreement.
1.27 "Hotel Opening Date" has the meaning provided in the Lease.
1.28 "Improvements" means all improvements to be constructed on the
Property, together with all fixtures and appurtenances thereto, pursuant to this Agreement.
1.29 "Indemnified Parties" means, collectively, Owner Indemnified Parties
and Developer Indemnified Parties.
1.30 "Law or Laws" means:
(i) any and all laws, rules, regulations, constitutions, orders,
ordinances, charters, statutes, codes, executive orders and requirements of all Governmental
Authorities applicable to Developer or to the Premises or any street, road, avenue or sidewalk
comprising a part of, or lying in front of, the Premises or any vault in, or under the Premises
(including, without limitation, any of the foregoing relating to handicapped access or parking, the
Building Code 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 Premises as then in force; and
(iii) any and all provisions and requirements of any property,
casualty or other insurance policy required to be carried by a Person under this Agreement.
1.31 "Lease" has the meaning provided in the Recitals to this Agreement.
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1.32 "Owner" has the meaning provided in the preamble to this Agreement.
1.33 "Owner Indemnified Parties" means, collectively, Owner (and any
successor Owner), the City and their respective elected and appointed officials (including
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. An "Owner Indemnified Party" shall mean any of the foregoing.
1.34 "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.
1.35 "Premises" means, collectively, the Property and the Improvements.
1.36 "Project" has the meaning provided in the Recitals to this Agreement.
1.37 "Project Costs" means the costs set forth in the Development Budget, as
may be amended in accordance with this Agreement.
1.38 "Property" has the meaning provided in the Recitals to this Agreement.
1.39 "Resolution" means Resolution No. 96-22075 of Owner, as the same may
be supplemented or amended from time to time, authorizing ner to enter into this Agreement and
such other agreements and documents as are incidental hereto and thereto.
1.40 "Retail Space" has the meaning provided in the Recitals to this
Agreement.
1.41 "Schedule of Performance" means the timetable for the design,
development, construction and final completion of the Project as set forth in Exhibit D attached
hereto, subject to authorized adjustments as provided herein.
1.42 "Site Work" has the meaning provided in Section 2.1 (c )(iii) below.
1.43 "Substantial Completion" or "Substantially Complete" or
"Substantially Completed" means, with respect to the Project (excluding tenant finishes in the
Retail Space), that (1) it shall have been substantially completed in accordance with the
Construction Plans, as certified by the Architect, and (2) the Garage shall have been issued a
temporary certificate of occupancy.
1.44 "Tenant" has the meaning provided in the Recitals to this Agreement.
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1.45 "Unavoidable Delay" 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 Law, 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 Unavoidable
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 condition or inability to fund or obtain
funding or financing constitute an "Unavoidable Delay" with respect to such party and (ii) any
delay arising from a party's (or its Affiliate's) default under any Project Document (as defined in
the Lease) 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) shall be extended to the extent performance is delayed by Unavoidable
Delay, except as otherwise expressly set forth in this Agreement.
ARTICLE II
SELECTION AND RESPONSIBILITY OF DEVELOPER
2.1 Development Functions. (a) Owner hereby engages Developer and grants
to Developer, subject to the terms, conditions and limitations set forth in subsection (b), below,
the right and authority, and Developer agrees, (i) to negotiate and submit to Owner for Owner's
approval, contracts necessary to perform, (ii) to perform the functions set forth in this Article II
and (iii) to perform all other obligations of Developer set forth in this Agreement. Developer
agrees to diligently use its skills and commercially reasonable efforts in the performance of all of
the services, functions, duties, covenants and obligations of Developer set forth in this
Agreement. In providing the services described in this Agreement, Developer shall administer
and coordinate the activities of, maintain a working relationship with, and report to Owner, or its
designated representatives, from time to time on work of, the GC, Architect and other consultants
listed in Exhibit E attached hereto.
(b) Developer further agrees (i) to apply prudent and reasonable
business practices in the performance of its duties hereunder and (ii) to diligently use
commercially reasonable efforts and devote sufficient time in order that (1) the development of
the Project to be conducted in substantial compliance with the schedules established therefor by
Owner and Developer, and (2) the construction of the Project be Substantially Completed on or
before the projected Completion Date as set forth in the Schedule of Performance and the Project
be completed thereafter, all in accordance with the Project's Development Budget, free and clear
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of any and all mechanics', laborers' and materialmen's liens, and claims of liens and other
encumbrances on the Premises title unless approved by Owner.
(c) Developer hereby agrees with respect to the Project to diligently
devote commercially reasonable efforts to oversee and direct the pre-development, development
and construction of the Project and to diligently devote commercially reasonable efforts to
perform all of the following functions in a manner consistent with comparable projects in the
ordinary course within the scope of the Construction Plans and the Development Budget
approved by Owner, provided, however, the cost of the Project shall be borne by Owner in
accordance with the Development Budget and this Agreement:
(i) Developer shall meet with Owner monthly (or more often as
reasonably determined by Owner but not more often than weekly) and shall be prepared to
discuss any such agenda items as may be reasonably required by Owner;
(ii) arrange for preparation of a preliminary site plan in accordance
with Owner's direction and subject to Owner's approval;
(iii) arrange for the preparation of a preliminary construction cost
analysis and cost estimate to complete the on-site infrastructure, including on-site utility systems,
sewers, drainage systems and the like ("Site Work") for Owner's approval;
(iv) arrange for the preparation of surveys, engineering and
architectural drawings and feasibility, marketing and other studies as are requested by Owner;
(v) arrange for the review by the consultants of the Project of all
applicable building codes, environmental, zoning, land use and other applicable Laws concerning
the Premises and its proposed use;
(vi) negotiate with all applicable utility companies, whether
governmental or private, for the installation on a timely basis of all utility services required for
the Project;
(vii )
Work to be completed;
when authorized by Owner to proceed, arrange for the Site
(viii) prepare a preliminary construction cost estimate and schedule
for those Improvements Owner authorizes to be constructed within the Project and submit the
same to Owner for Owner's approval;
(ix) negotiate and cause to be prepared for execution by Owner,
Developer and the Architect, the Architect's Agreement for design and construction
administration of those improvements Owner authorizes to be constructed within the Project;
negotiate and cause to be prepared for execution by Owner, Developer and the Engineer, the
Engineers' Contracts;
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(x) negotiate and cause to be prepared for execution by Owner,
Developer and the GC, the General Contractor's Agreement for the construction by the GC of
those Improvements Owner authorizes to be constructed within the Project;
(xi) in addition to negotiating the contracts with the Architect,
Engineers and GC, negotiate the engagement of and engage, on terms reasonably satisfactory to
Owner, surveyors and other consultants for the design, development and construction of the
Project;
(xii) update and resubmit from time to time as necessary the
Development Budget for Owner's approval;
(xiii) maintain a continuing liaison and conduct and manage all
dealings with the Governmental Authorities having jurisdiction over the development and
construction of the Project including, but not limited to, upon the written request and subject to
the direction of Owner, use commercially reasonable efforts to obtain all necessary governmental
permits, licenses, certificates and approvals as necessary for or applicable to the development and
construction of the Improvements within the Project and supervising compliance with all
applicable Laws;
(xiv) administer and supervise the contracting and subcontracting
process, including, if applicable, the development of pre-qualification criteria for bidders, the
proper drafting of bidding documents and review of bids received in response to the bidding
documents; if required by applicable Laws, Owner shall designate standards and requirements for
competitive bidding and negotiation and circumstances under which negotiated contracts will be
utilized;
(xv) coordinate, review, and manage the work and activities of the
Architect, the GC, subcontractors, engineers and other independent contractors employed for the
development and construction of the Project, which activities shall include, without limitation,
the following: (1) reviewing, monitoring and coordinating all construction scheduling with a
view to the orderly process of construction and completion thereof in accordance with the
prescribed schedule; (2) reviewing and verifying all payment requests from the Architect and the
GC; (3) ascertaining and notifying whether the GC has obtained pursuant to the terms of the
General Contractor's Agreement all insurance required by Owner, and delivering to Owner the
original certificates of insurance; (4) reviewing, monitoring and coordinating the resolution of all
contract and insurance claims;
(xvi) retain all inspectors and any other experts required by Law to
inspect or evaluate the Project or the construction of any portion of the Improvements
constituting a part thereof, and Developer shall inspect the Project at regular intervals so as to be
kept informed as to the stage of development and the condition of the Project;
(xvii) diligently use its commercially reasonable efforts to administer
the construction and development of those Improvements approved by Owner within the Project,
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in a manner which satisfies the obligations imposed upon Owner by Governmental Authorities
and others having jurisdiction thereof; furnish to Owner detailed monthly reports with respect to
construction, development and other Development Functions;
(xviii) deliver to Owner the originals of all permits, licenses,
guaranties, warranties, bills of sale and any other contracts, agreements, change orders or
commitments obtained or received by Developer for the account or benefit of Owner, it being
understood that Owner, upon Owner's approval thereof, will execute all such contracts,
agreements, change orders and other documents, and that Developer will not, under any
circumstances, except as specifically provided otherwise in this Agreement or hereafter in
writing by Owner, execute any such documents:
(xix) maintain separate books and records with respect to the Project,
including all invoices for labor and materials associated with the Project, and prepare or cause to
be prepared and submit to Owner reports for the Project of actual costs, expenses and accounts as
compared with the Development Budget, the status of construction and development and other
matters requested by Owner;
(xx) supervise disbursements of construction funds to pay the GC,
suppliers, Architect, and insurers;
(xxi) prepare and update the Schedule of Performance, as reasonably
necessary; provided, however, that all updates shall be subject to the approval of Owner; and
(xxii) Commencing on the Construction Commencement Date and
continuing until construction of the Project shall have been completed, Developer shall, in
accordance with this Agreement, furnish to Owner monthly reports (one of which shall be
delivered to Owner simultaneously with each Draw Request), in such detail as may reasonably
be requested by Owner, as to the actual progress of the construction. Each report shall
summarize in detail the progress of construction of the Project, the status of all necessary
governmental approvals required in connection with the construction work, the status and degree
of the completion of the construction work, and any anticipated delays under the Schedule of
Performance which are foreseeable or known to Developer. Each report shall also include a
reasonable number of construction photographs taken since the last report submitted by
Developer; provided, however, after the Project has been Substantially Completed, Developer
shall only be required to deliver construction photographs as may be appropriate.
2.2 Limitation of Developer's Authority. Except for actions authorized in this
Agreement or otherwise approved in writing by Owner, Developer shall not take any action
which would cause Owner to expend funds or incur liabilities or obligations. All documentation
involving the Project shall be executed by Owner, unless delegated by Owner in writing.
Owner's approval shall be required for all proposed changes to the Development Budget,
Construction Plans and other changes to matters that initially required Owner's approval.
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2.3 Review and Approval of Development Drawings and Construction Plans.
(a) Developer has previously submitted to Owner, and Owner has
approved, the Development Drawings described on Exhibit B attached hereto and shall submit
the Construction Plans for approval by the Owner.
(b) If Developer desires to modify the Development Drawings or
Construction Plans (as such may have been previously approved pursuant to Section 2.3(a) or
this Section 2.3(b)), Developer shall submit such proposed modifications to Owner. Within ten
(10) business days following its receipt of such proposed modifications (which time period shall
not commence to run until such time as Owner is furnished with a set of Development Drawings
or Construction Plans that clearly indicate (by "ballooning," highlighting, blacklining or
describing in writing in sufficient detail in a memorandum accompanying such modified
Development Drawings or Construction Plans) all such proposed modifications, Owner shall
notify Developer whether Owner approves or disapproves the proposed modifications. If Owner
disapproves any such proposed modification, Owner's notice shall reasonably specify the
proposed modifications that Owner has not approved. No such proposed modification to the
Construction Plans shall be deemed incorporated in the Development Drawings or Construction
Plans unless and until Owner has approved such proposed modification as provided in this
Section 2.3(b). Notwithstanding anything to the contrary contained herein, Owner shall not
object to any proposed modifications to the Development Drawings or Construction Plans that
are necessitated by Laws or which are required to correct any drafting, coordination, technical or
mechanical error in the Development Drawings or Construction Plans.
(c) Owner may modify the Development Drawings or the
Construction Plans; provided, however, that (i) Owner notifies Developer of any such
modification, such notice to contain a copy of the Development Drawings or the Construction
Plans that clearly indicate (by "ballooning," highlighting, blacklining or describing in writing in
sufficient detail in a memorandum accompanying such modified Development Drawings or
Construction Plans) such modification; (ii) such modification would not materially negatively
affect or interfere with the efficiency, function, or first class quality of the Garage or cause the
Garage to be inconsistent with a first class convention center hotel; and (iii) such modification
does not require a material change to the Schedule of Performance.
2.4 Budget and Change Orders.
Developer has previously submitted to Owner, and Owner has approved, a
budget estimating the pre-construction, development and construction of the Project, including,
without limitation, hard and soft construction costs and providing for Contingencies
(collectively, the "Development Budget"), copies of which are attached hereto as Exhibit F.
Any modifications to or deviations from the Development Budget, including, without limitation,
any increases in the Development Budget, shall be subject to the prior approval of Owner.
2.5 Vendors. To the extent practicable, Developer will obtain competitive
quotes for each portion of the work. If any vendor is the sole source for a product or material to
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be used in the construction of the Project, Developer must notify Owner of such fact in writing
and Owner must respond to Developer's notice within five (5) days of receipt of such notice or
the sole source identified in the notice shall be deemed reasonably acceptable to Owner. All such
contracts shall be arms length transactions. Developer shall not enter into any agreement with an
affiliate of Developer without the prior written consent of Owner, which consent may be granted
or denied in the sole discretion of Owner. As a condition to obtaining such consent, Developer
shall furnish Owner with a copy of the proposed agreement and shall disclose the affiliation or
relationship between Developer and the proposed vendor.
2.6 Scope of Review. Neither Owner nor Developer shall be responsible in
any way for any error or omission in the Construction Plans or failure of such Construction Plans
to comply with any mechanical, engineering, design or structural standard, any building
regulation or other governmental requirement.
2.7 Contract for Construction. In accordance with the Schedule of
Performance, Developer shall submit to Owner for its acceptance the General Contractor's
Agreement, in executable form, providing for the construction of the Garage complying in all
respects to the requirements of this Agreement together with a full payment and performance
bond for the design and the work. The General Contractor's Agreement and bond for
construction shall be in such form and contain such provisions as are reasonably satisfactory to
Owner. The General Contractor's Agreement shall contain, among other things, a provision for
the appointment of an auditor, which auditor shall be selected by Owner and will conduct an
audit of the cost of construction of the Project on an ongoing basis; a provision(s) incorporating
all terms of this Agreement applicable to the GC, including, without limitation, Article IV
hereof; and a provision providing for direct purchase of construction materials by Owner to
achieve savings in applicable sales taxes. If Owner makes any successful claim under the
payment and performance bonds resulting in a payment by the surety following a default under
the General Contractor's Agreement, then 100% of all savings in actual GMP Project Costs shall
inure solely to the benefit of Owner and shall not be shared with the GC, subject to any valid
claims by the GC against any subcontractor whose default was the basis of such claim.
2.8 Conditions Precedent to Commencement of Construction. As conditions
precedent to its right to commence any portion of the construction of the Improvements,
Developer shall have:
(a) secured Owner's approval of the Construction Plans and
provided Owner with the appropriate number of copies thereof;
(b)
Contractor's Agreement;
provided Owner a fully executed copy of the General
(c) provided Owner all payment, performance and completion
bonds, to the extent required under the General Contractor's Agreement;
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(d) obtained all necessary licenses, permits and governmental
approvals and authorizations related to and required for the construction of the Improvements;
(e) complied with all other requirements and conditions precedent
to commencement of construction set forth in this Agreement.
2.9 Construction Liens. If, because of any act or omission of Developer, any
construction lien or other lien for labor, material, fuel, machinery, services or supplies shall be
filed against the Premises, or any building, structure or improvement thereon relating to work for
which Developer has been paid, Developer shall, within forty-five (45) days of the filing of such
lien, cause the same to be canceled and discharged of record or bonded off. Developer shall,
within five (5) days of receipt of notice of any such filing, deliver to Owner a copy thereof.
2.10 Insurance During Construction. During the term of this Agreement, the
General Contractor's Contract shall provide for the following insurance except as otherwise
agreed to by Owner:
(a) Comprehensive General Liability, including coverage of the
contractual liability described in Article 6. Unless otherwise approved in writing by Owner, GC
will maintain and require all Persons it employs hereunder to maintain public liability insurance
in the minimum amount of One Million Dollars ($1,000,000) combined single limit, covering
both bodily (including death) and property damage.
(b) Workers' Compensation and Employer's Liability in an amount
not less than required by Law, covering all employees who are engaged in any work under this
Agreement.
(c) Comprehensive Automobile Liability when the services to be
performed require use of a motor vehicle in the minimum amount of One Million Dollars
($1,000,000), combined single limit, covering bodily injury (including death) and property
damage.
(d) Excess umbrella liability coverage in an amount not less than
Ten Million Dollars ($10,000,000) during construction of the Project and in an amount not less
than Four Million Dollars ($4,000,000.00) after substantial completion of the construction of the
Project.
(e) (1) A Named Perils or all risk Builders Risk policy covering
the interest of the Indemnified Parties and subcontractors. Such policy will insure the Project for
not less than 100% replacement cost (including excavations and foundations) on a completed
value basis, and will include coverage for the increased cost of construction due to the
enforcement of any laws, as well as the contingent liability from the operation of buildings, and
coverage for the demolition cost of undamaged portions of buildings, including the garage
(comparable to Industrial Risk Insurers Endorsements Forms N-250, N-248 and N-249). If
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requested by Owner, such policy shall include a Non-Contributory Standard Mortgagee clause or
its equivalent and a Lender's Loss Payable Endorsement Form BFU 438 or its equivalent.
(2) Business Interruption coverage for loss from the perils
insured against, for the building and garage under construction. This will include:
(i) Loss of Profits/Rents insurance to cover losses of
income due to loss/damage to the Project from insured perils. Such coverage will be in an
amount sufficient to avoid any co-insurance penalty, and for a period not less than the period
reasonably required to repair or rebuild the Project.
(ii) Extra Expense coverage, with a limit of at least
Four Million and 00/100 Dollars ($4,000,000), to cover overtime and other extra costs incurred
to expedite repairing or rebuilding the damaged portion of the Project.
(f) Such insurance coverage shall be written on an occurrence basis
and shall be subject to Owner's approval for adequacy of protection. The Indemnified Parties
shall be named as additional insureds.
(g) GC's insurer shall agree in writing that its insurance coverage is
primary and Developer shall provide evidence that the insurer is rated A + 9 or better by Bests
Insurance Reports. Further, the insurance coverage obtained under this Section shall have no
deductible in excess of $1 00,000.00.
(h) The insurance described in Subsection (e) shall cover the work
at the Project and the work and materials authorized by Owner to be stored off-site in accordance
with the terms of the General Contractor's Agreement.
(i) If separate All Risks or Named Perils and Difference-in-
Conditions and Boiler and Machinery policies are carried to insure the Project, then each such
policy will include a "Loss Adjustment Endorsement" (comparable to the Industrial Risk
Insurers Form N-388), outlining procedures for the settlement of claims involving disagreement
between the Boiler and Machinery insurers and the All Risks or Named Perils/DIC insurers.
G) Prior to the earlier to occur of (i) the issuance of a foundation
permit and (ii) the commencement of any construction work, the GC shall obtain all required
insurance, the carriers shall be bound and all original certificates of insurance and the original
builder's risk policy shall be delivered to Owner. Such insurance shall remain in full force and
effect until completion of the Project. All insurance required under this Section 2.12 shall be
satisfactory to Owner and shall be effected under valid and enforceable policies issued by
insurers of recognized responsibility, and licensed to do business in the State of Florida. The
insurance required by this Section 2.12 may be part of another policy or policies of GC in which
other properties and locations are also covered so long as the amount of insurance available to
pay losses related to the Project is at least the minimum required by this Section 2.12 and cannot
be reduced in any manner by losses occurring at other properties or locations.
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GC shall submit original certificates evidencing the required insurance
policies to Owner together with all relevant coverage, policy terms and premium information
along with satisfactory evidence of payment of the premiums thereof.
(k) If allowed by Law, Owner and GC will each require the carriers
of property insurance hereunder to waive any of their respective rights of subrogation against
Owner or Developer, as the case may be, to the extent of the face amounts of the property
insurance policies. Owner and GC each waive any rights of subrogation or recovery against the
other for damage or loss to its respective property due to perils covered by policies of insurance
obtained or which are required hereunder to be obtained, to the extent of the face amounts of the
insurance policies which were or are required hereunder to be obtained. This waiver shall apply
whether or not the damage of loss may be attributable to the fault or negligence of either party or
its respective agents, employees, visitors or contractors. Any deductible shall be deemed to be
insurance coverage for purposes of this Subsection 2.12( 1). GC shall require similar waivers
from the GC's subcontractors and their insurers.
2.11 Warranties Extend to Owner. Developer agrees that no warranties of
vendors will be in favor of Developer. If requested, Developer shall use commercially
reasonable efforts in assisting Owner in obtaining any warranties from vendors, the GC and all
such subcontractors, manufacturers or service organizations who perform construction work or
install any equipment for the Project.
2.12 No Additional Construction-No Substitutions. Developer shall not permit
the construction of any improvements on or to the Property other than the Improvements in
accordance with the provisions of this Agreement.
2.13 Establishment of Completion Date. Upon Substantial Completion of the
Project in accordance with this Agreement and the General Contractor's Agreement, Developer
shall furnish to Owner a certificate, duly executed by Developer (to the best knowledge of
Developer), the Architect or the appropriate Consultant and the GC, stating that:
(a) the Project (excluding the tenant finishes for the Retail Space) has
been Substantially Completed in accordance with the General Contractor's Agreement and the
Construction Plans and all labor, services, materials and supplies used in the completion of the
Project (excluding the tenant finishes for the Retail Space) have been fully paid exclusive of
retainage; and
(b) a temporary certificate of occupancy or completion or a certificate
of occupancy or completion for the Garage has been issued by the applicable governmental
authority so that Owner can occupy and use the Garage for its intended purpose; and
(c) all equipment including, without limitation, the parking revenue
control system, closed circuit television system, elevators, and other facilities required under the
Construction Plans have been constructed, acquired and installed in accordance with the
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Construction Plans and all costs and expenses incurred in connection therewith have been fully
paid exclusive of retainage; and
(d) the equipment, if any, so constructed, acquired and installed is in
proper operating order; and
(e) as to the Consultant only, such equipment is suitable and sufficient
for the efficient operation of the Project for the purposes for which it is intended.
Notwithstanding the foregoing, such certificate shall state that it is given without
prejudice to any rights against third parties which exist at the date of such certificate or which
may subsequently come into being. Also, and notwithstanding the foregoing, the establishment
of Substantial Completion shall not be a waiver of any rights of Owner hereunder, including, but
not limited to, the right to ascertain to its own satisfaction the accuracy of any matters contained
in the certificate referred to above. Prior to the Completion Date, Owner shall inspect and accept
or reject the work and shall provide a written punchlist to Developer. Developer shall diligently
use its commercially reasonable efforts to cause all punchlist work with respect to the Project to
be completed and the final certificate of occupancy to be issued.
2.14 Development Fee and Expenses.(a) In consideration of the services to be
performed by Developer hereunder, Owner agrees to pay to Developer a development fee equal
to (y) three percent (3%) of the actual Project Costs set forth in the Development Budget, as
amended from time to time in accordance with the provisions hereof minus (z) $100,000.00 (the
"Development Fee"). Provided no outstanding Event of Default exists hereunder,
(i) seventy-five (75%) percent of the Development Fee shall be paid upon the Substantial
Completion of the Project and the delivery by Developer of a certificate covering items (a)
through (d) of Section 2.13 above and (ii) the remaining twenty-five (25%) percent shall be paid
upon obtaining the final certificate of occupancy; provided, however, if this Agreement is
terminated pursuant to Section 8.2(b), Developer shall be entitled to only that portion of the
Development Fee earned as of the date of such termination.
(b) The Development Fee shall be deemed to cover all the following
costs and expenses, and such items shall be borne by Developer out of the Development Fee,
without any obligation upon Owner to reimburse Developer therefor or to pay Developer any
amount with respect thereto (other than the aforesaid Development Fee): salaries, bonuses and
other compensation of all employees of Developer; travel expenses; rent for offices of Developer
used in performing obligations hereunder; telephone, telegraph and utility charges incurred by
Developer; office supplies, repair and maintenance of office machines and postage incurred by
Developer.
(c) The Development Fee shall not cover any of the following items,
and Owner shall pay the reasonable cost of all of the following items which inure to the Project's
benefit and which are incurred exclusively for the Project ("Reimbursable Expenses"), provided
that such costs are provided for in the Development Budget:
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(i) Cost of labor and materials incorporated in any
Improvements, including, without limiting the generality of the foregoing, all contract prices of
contractors and suppliers under contracts with or for the benefit of Owner.
(ii) Architectural and engineering fees to architects and
engineers under contracts with or for the benefit of Owner.
(iii) Costs of reproductions of plans and specifications.
(iv) Accountants' fees and attorneys' fees; fees paid to
computer services for preparation of critical path method studies and other work.
(v) Fees paid to design consultants and other outside
consultants.
(vi) Reasonable and actual out-of-pocket expenses incurred by
Developer in connection with its performance of the Development Functions (to the extent not
covered in any of the foregoing provisions of this Section).
Except to the extent advanced by Developer, Owner shall pay the expenses
referenced in subsections (i) through (v) above, pursuant to Article IV hereof. Except as
provided in subsections (b) and (c) above, Developer shall not be entitled to reimbursement of
any costs or expenses incurred by Developer. Owner shall reimburse Developer monthly for all
Reimbursable Expenses theretofore incurred by Developer. A summary of expenses incurred,
with invoices, will be presented to Owner in support of each request for payment.
Any Reimbursable Expenses incurred prior to the date hereof will be paid by
Owner within ten (10) days after Developer has submitted a request for payment, together with a
summary of expenses incurred, with invoices.
2.15 Architect's Agreement. The Architect's Agreement shall require the
Architect to maintain for a period of two years following completion of the Project as evidenced
by issuance of a permanent unconditional certificate of completion or occupancy, errors and
omissions insurance on an occurrence basis which shall be for limits of not less than $1,000,000.
The Architect's Agreement shall require the Architect to indemnify Developer and Owner as
required by Owner and shall require the Architect to insure such indemnity under such errors and
omissions insurance and name the City as an additional insured.
ARTICLE III
ENVIRONMENTAL MATTERS
3.1 Hazardous Materials. Developer shall require the GC to (a) keep current
at the Premises for Owner's review a report that lists hazardous materials which are actually
known to be used at the Premises by any Person, which report shall include data on each
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hazardous material, identifying the product, quantity stored on or off the Premises and location of
the hazardous material; (b) implement procedures for the storage, use and disposal of hazardous
materials in accordance with the Law and Owner's written practices and procedures if delivered
to Developer, and (c) monitor and file water treatment test results as required by the Law and
maintain a copy at the Premises for Owner's review. Developer shall notify Owner immediately
upon knowledge of a hazardous material spill or release and shall take all action required by the
Law.
ARTICLE IV
CONSTRUCTION COSTS AND DISBURSEMENT PROCEDURES
4.1 Disbursements. Owner agrees that it will, monthly, disburse portions of
the Project Costs to the GC payable pursuant to the General Contractor's Agreement. Any other
Project Costs shall be disbursed to Developer or such other parties as are entitled to receipt
thereof. The conditions set forth in this Article IV must be satisfied before Owner has any
obligation to make the first disbursement, and must be and remain satisfied before Owner has
any obligations to make each and every subsequent disbursement.
4.2 Draw Requests. At least fourteen (14) days prior to each disbursement by
Owner, Developer shall submit to Owner a Draw Request properly executed by the Architect, the
GC and Developer, which Draw Request shall include:
(a) Request for Disbursement: Five (5) duplicate originals of a
completed Draw Request setting forth the amount of the Project Costs requested, together with a
copy of the progress report referenced in Section 2.1 (c )(xxii) and together with such
certifications and additional information as Owner may reasonably require, signed by an
Authorized Officer of Developer and an authorized officer of the GC certified to Owner in a
writing signed by them, and certifying to the validity of the Draw Request.
(b) Application for Payment: If the Draw Request includes an
application for payment of amounts to be paid to the GC, originals of AlA Document G702 and
AlA Document G703 (or equivalent forms approved by Owner) together with a certification that
stored materials are in place both on-site and off-site and secured in a format acceptable to
Owner. Such application for payment shall contain a breakdown by trade or other categories
reasonably acceptable to Owner, completed to the reasonable satisfaction of Owner and executed
by the GC and the Consultant. The application for payment as it relates to the GC shall be
reduced by a 10% retainage on the work of all subcontractors of the GC until 50% of the work
for each trade is completed, at which time no further retainage will be deducted and the balance
shall remain unfunded until completion of the Project. Upon completion of the Project and in
accordance with Section 4.7 below, the retainage shall be paid, subject to continued retainage of
150% of each subcontractor's punchlist amount as reasonably determined by the Consultant,
which will he held until final disbursement as further described in Section 4.7.
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(c) Invoices: If the Draw Request includes a request for amounts
for non-construction items, Developer shall provide invoices for such items.
(d) Lien Waivers: Notarized construction lien waiver forms
executed by the GC and by each appropriate subcontractor, laborer or materialman, which
indicate that each of them has been paid in full for all work performed and services and materials
furnished through the date of the Draw Request as to the GC and through the date of the prior
Draw Request as to all subcontractors, laborers and materialmen.
(e) Affidavit: A certificate executed by GC which certifies that all
funds disbursed to date by Owner to GC have been paid to the appropriate parties and which
certifies that GC will continue to comply with all provisions of this Agreement and the Exhibits
attached hereto.
(f) Consultant's Report: A written report from the Consultant
certifying that all work completed through the date of the Draw Request is in compliance with
the Construction Plans and confirming that the undisbursed portion of the Project Costs is
adequate to complete and fully pay for the construction of the Improvements and completion of
the Project in accordance with the Construction Plans and the General Contractor's Agreement.
(g) Architect's Report: A written report from the Architect
certifying that all work completed through the date of the Draw Request is in compliance with
the Construction Plans.
4.3 Disbursement Amounts. Following receipt of a Draw Request and receipt
and review of the reports and all other items required for a disbursement to be made under this
Agreement, Owner shall determine the amount of the disbursement it will make in accordance
with the Project Costs and shall make direct payment to the General Contractor or appropriate
subcontractor and/or supplier, provided no Event of Default exists hereunder or under the
General Contractor's Agreement.
4.4 Option to Disburse Funds to Contractors. If an Event of Default exists, or
upon notice to Owner of non-payment by Developer or the GC of any obligation related to
construction of the Improvements and failure of Developer or GC to provide a reasonable
explanation for any such non-payment, at its option, Owner may make disbursements directly to
any party performing the obligations of Developer or GC hereunder or under the General
Contractor's Agreement or any unpaid subcontractor, laborer or materialman providing labor,
services, fuel, machinery or materials in connection with the construction of the Improvements
and whose claim is set forth in writing and certified to Owner. The execution of this Agreement
by Developer shall, and hereby does, constitute an irrevocable direction and authorization to
Owner to so disburse the funds. No further direction or authorization from Developer shall be
necessary to warrant such direct disbursements and all such disbursements shall be deemed
disbursed to, or on behalf of Developer as fully as if made to Developer, regardless of the
disposition thereof by any subcontractor, laborer or materialman so paid.
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4.5 Conditions Precedent to First Disbursement. Owner shall not be obligated
to make the first disbursement until all of the following conditions precedent have been satisfied
by proper evidence, and the following items have been executed and delivered to Owner, all in
form and substance reasonably satisfactory to Owner:
(a) Notice of Commencement. A Notice of Commencement shall
have been properly completed, executed, recorded and posted in accordance with Florida
construction lien laws.
(b) Insurance. All original certificates of insurance required under
Article II hereof.
(c) Development Drawings and Construction Plans. Two (2) sets
of the Construction Plans and Development Drawings and one (1) set of Construction Plans and
Development Drawings clearly indicating (by "ballooning," higWighting, blacklining or
describing in writing in sufficient detail in a memorandum accompanying such modified
Development Drawings or Construction Plans) all such modifications approved by Owner in
writing (either by initialling the same or by other written approval identifying all pages and
dates, including revision dates) by Owner, the Consultant, Developer, GC and the Architect.
(d) Permits. Copies of all applicable permits including, without
limitation, the building permit and all other permits required for construction of the
Improvements.
(e) Construction Documents. Two (2) fully executed originals and
one (1) copy of each of the General Contractor's Agreement and all other construction contracts
and subcontracts.
(f) Consents of GC and Architect. The GC and the Architect shall
agree that Owner may use and copy the Development Drawings and the Construction Plans at no
cost to Owner and the same shall constitute the exclusive property of Owner.
(g) Bonds. Payment, performance and completion bonds in the
amount of the General Contractor's Agreement naming Owner as "obligee" and issued in form
and substance and by a surety reasonably acceptable to Owner.
(h) No Event of Default. No Event of Default shall exist under the
General Contractor's Agreement as defined therein.
(i) Other Documents. Such other information, reports, agreements
and documents required under this Agreement or reasonably required by Owner.
(j) Survey. Developer shall furnish to Owner five (5) copies of a
foundation survey of the Garage (the "Survey") prepared by a registered surveyor satisfactory to
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Owner within fifteen (15) days after completion of the foundation showing that the foundation
has been poured within the boundaries of the Property.
(k) Soil Report. A report as to the compaction of any soil for
construction together with any other soil test performed on or to the Property by a soil testing
firm satisfactory to Owner, at such times and in such locations as recommended by such firm.
Developer shall promptly submit to Owner copies of all such reports, together with any other
physical tests made on or to the Property or the materials to be used in the construction of the
Improvements. Additional testing requested by Owner shall be at Owner's expense.
(1) Title. A title insurance company engaged by Owner (the "Title
Company") shall have issued to Owner at Owner's expense an Owner's title insurance policy
with respect to the Property (the "Title Policy").
(m) Deliveries. If applicable, the items set forth in 4.6(b), (c), and
(e)-(i) have been delivered to Owner.
4.6 Monthly Disbursements. Owner shall not be obligated to make any
disbursements after the first disbursement until all of the following conditions have been satisfied
and remain satisfied as of the date of each such disbursement:
(a) All of the conditions set forth in Section 4.5 above remain
satisfied.
(b) Along with the submission of a Draw Request, a request for
payment signed by Developer and the GC shall have been delivered to Owner which sets forth a
detailed breakdown of the disbursement requested, including, without limitation, the requisition
of the GC, together with copies of invoices and other documentation to substantiate any requests
by Developer for payment of Project-related "soft costs" approved by Owner and which are a
part of the Project Costs.
(c) The Consultant, the GC and the Architect shall certify that
construction of the Improvements for which such Draw Request has been made has been
performed in substantial accordance with the Construction Plans, the Project Costs, and all terms
and conditions of this Agreement and the General Contractor's Agreement.
(d) The Title Company shall have issued to Owner at Owner's
expense an endorsement to the Title Policy updating the effective date of the Title Policy, listing
any additional subordinate matters, if any, and certifying that no lien or other interest shall have
attached to the Property or the Improvements, except taxes for the current year, not yet due and
payable, and those other matters, if any, approved in advance in writing by Owner.
(e) Owner shall have received all required approvals to the Draw
Request including approvals and certificates from the Consultant, Developer, GC and the
Architect.
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(f) Owner and the Title Company shall have received copies of all
notarized partial release lien waiver forms executed by each appropriate subcontractor, supplier
and materialman for disbursement made under the preceding Draw Request or any portions of
the current Draw Request shown to have been paid.
(g) No litigation, arbitration or other proceeding shall have been
commenced against the GC, which, in the Owner's Executive Director's or the Owner's General
Counsel's reasonable judgment, materially impairs or is likely to materially impair the GC's
ability to complete the Project.
(h) If requested, Owner shall have received a recertification of the
Survey reflecting all changes in the physical conditions of the Property and the Project
subsequent to the date of the last certification of the Survey. Each such recertification shall show
all construction and development work in place as of the date of such recertification.
(i) There shall not have been any destruction or casualty to the
Premises that is not anticipated to be covered by insurance. To the extent that there is any
destruction or casualty whether or not covered by insurance, Developer agrees to immediately
notify Owner of the same in writing.
(j) No Event of Default shall exist under the General Contractor's
Agreement as defined therein.
4.7 Requirements for Final Disbursement. Owner shall not be obligated to
make the final construction disbursement until all of the following additional conditions have
been satisfied:
(a) The Project (including, without limitation, all punch list items)
has been completed substantially in accordance with the requirements of this Agreement, the
General Contractor's Agreement and in accordance with the Construction Plans, and certificates
as to such completion have been issued in form reasonably satisfactory to Owner by the GC, the
Architect and the Consultant including, without limitation, an Architect's Certificate of
Completion together with an AIA G704 Certificate of Substantial Completion, a Contractor's
Certificate of Completion together with the AIA G704 Certificate of Substantial Completion and,
if applicable, an Engineer's Certificate of Completion.
(b) Owner has received five (5) copies of an "as-built" survey paid
for by Owner prepared by a registered surveyor showing that the Improvements have been
constructed within the boundaries of the Property and the striping of all parking spaces has been
completed with a statement as to the number of parking spaces available marked thereon.
(c) Owner has received five (5) sets of detailed as-built plans and
specifications of the Improvements approved and certified as such in writing by the GC and the
Consultant. Each set must include plans and specifications for architectural, structural,
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mechanical, plumbing, electrical and site development work (including, without limitation, storm
drainage, utility lines and landscaping).
(d) Owner has received a contractor's final affidavit from the GC
and final lien waivers and releases from the GC and all subcontractors, suppliers, laborers, and
materialmen certifying that they and all parties in privity with them have been paid in full except
for the retainage and, except therefor, waiving their respective lien rights, if any, against the
Premises.
(e) Owner has received an inspection report performed by the
Consultant in substance reasonably satisfactory to Owner which certifies, among other things,
that the Improvements have been completed substantially in accordance with the Construction
Plans and are in substantial compliance with this Agreement and the Consultant's written
approval of the final Draw Request.
(f) A certificate of occupancy or completion for the Project has
been issued by each applicable Governmental Authority.
(g) All the conditions set forth in 4.5 above remain satisfied.
(h) All items set forth in 4.6 above have been delivered.
ARTICLE V
NOTICES
Section 5.1
Service of Notices and Other Communications.
(a) 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 or to the
Premises pursuant to or in connection with this Agreement, each such notice, demand, request,
consent, approval or other communication (referred to in this Article Vasa "Notice") shall be in
writing 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:
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if to Developer:
with a copy to:
and to:
if to Owner:
WS-MI962620.055
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Prior to the Hotel Opening Date:
MB Redevelopment, Inc.
Suite 6A
407 Lincoln Road
Miami Beach, Florida 33139
Attention: Eric Nesse
After the Hotel Opening Date:
MB Redevelopment, Inc.
c/o Loews Miami Beach Hotel
General Manager
1601 Collins Avenue
Miami Beach, Florida 33139
Loews Hotels Holding Corporation
667 Madison Avenue
New York, New York 10021
Attention: Corporate Secretary
Hughes, Hubbard & Reed
201 S. Biscayne Boulevard, Suite 2500
Miami, Florida 33131
Attention: William A. Weber, Esq.
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
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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
Squire, Sanders & Dempsey
Two Renaissance Square
Phoenix, Arizona 85004
Attention: Richard F. Ross, Esq.
Any Notice may be given, in the manner provided in this Section, on either party's behalf by its
attorneys designated by such party by Notice hereunder.
(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).
ARTICLE VI
INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Indemnification of Owner. Developer shall indemnify and hold the Owner
Indemnified Parties harmless from all loss, cost, liability, claim, damage and expense (including
reasonable attorneys' fees and disbursements), penalties and fines, incurred in connection with or
arising from claims by a Person against an Owner Indemnified Party arising from any acts,
omissions or negligence of Developer or any Person claiming through or under Developer, or of
the contractors, agents, servants, employees, guests, invitees or licensees of Developer or any
Person claiming through or under such Person, in, about or concerning the Premises, except to
the extent any of the foregoing is caused by the gross negligence or willful misconduct of any of
the Owner Indemnified Parties.
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6.2 Indemnification of Developer. Owner shall indemnify and hold the
Developer Indemnified Parties harmless from all loss, cost, liability, claim, damage and expense
(including reasonable attorneys' fees and disbursements), penalties and fines, incurred in
connection with or arising from claims by a Person against a Developer Indemnified Party
arising from any acts, omissions or negligence of Owner made in its proprietary capacity or any
Person claiming through or under Owner (in its proprietary capacity only), or of the contractors,
agents, servants, employees, guests, invitees or licensees of Owner (in its proprietary capacity
only) or any Person claiming through or under such Person, in, about or concerning the Premises,
except to the extent any of the foregoing is caused by the gross negligence or willful misconduct
of any of the Developer Indemnified Parties.
6.3 Contractual Liability.
(a) The obligations of Developer under this Article shall not be
affected in any way by the absence of insurance coverage, or by the failure or refusal of any
insurance carrier to perform an obligation on its part under insurance policies affecting the
Premises; provided, however, that if Owner actually receives any insurance proceeds with
respect to an obligation of Developer under this Article, the amount thereof shall be credited
against, and applied to reduce, any amounts paid and/or payable hereunder by Developer with
respect to such obligation.
(b) The obligations of Owner under this Article shall not be
affected in any way by the absence of insurance coverage, or by the failure or refusal of any
insurance carrier to perform an obligation on its part under insurance policies affecting the
Premises; provided, however, that if Developer actually receives any insurance proceeds with
respect to an obligation of Owner under this Article, the amount thereof shall be credited against,
and applied to reduce, any amounts paid and/or payable hereunder by Owner with respect to such
obligation.
6.4 Defense of Claim, Etc.
(a) If any claim, action or proceeding is made or brought against
any Owner Indemnified Party by reason of any event to which reference is made in Section 6.1,
then, upon demand by Owner or such Owner Indemnified Party, Developer shall either resist,
defend or satisfy such claim, action or proceeding in such Owner Indemnified Party's name, by
the attorneys for, or approved by, Developer's insurance carrier (if such claim, action or
proceeding is covered by insurance) or such other attorneys as Owner shall reasonably approve.
The foregoing notwithstanding, such Owner Indemnified Party may at its own expense engage its
own attorneys to defend such Owner Indemnified Party, or to assist such Owner Indemnified
Party in such Owner Indemnified Party's defense of such claim, action or proceeding, as the case
may be.
(b) If any claim, action or proceeding is made or brought against
any Developer Indemnified Party by reason of any event to which reference is made in Section
6.2, then, upon demand by Developer or such Developer Indemnified Party, Owner, or any
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successor owner, as applicable, shall either resist, defend or satisfy such claim, action or
proceeding in such Developer Indemnified Party's name, by the attorneys for, or approved by,
Owner's insurance carrier (if such claim, action or proceeding is covered by insurance) or by
such other attorneys as Developer shall reasonably approve. The foregoing notwithstanding,
such Developer Indemnified Party may at its own expense engage its own attorneys to defend
such Developer Indemnified Party, or to assist such Developer Indemnified Party in such
Developer Indemnified Party's defense of such claim, action or proceeding, as the case may be.
6.5 Notification and Payment.
(a) Each Owner Indemnified Party shall promptly notify Developer
of the imposition of, incurrence by or assertion against such Owner Indemnified Party of any cost
or expense as to which Developer has agreed to indemnify such Owner Indemnified Party
pursuant to the provisions of this Article. Developer agrees to pay such Owner Indemnified
Party hereunder all amounts due under this Article within sixty (60) days after receipt of the
notice from such Owner Indemnified Party.
(b) Each Developer Indemnified Party shall promptly notify Owner
of the imposition of, incurrence by or assertion against such Developer Indemnified Party of any
cost or expense as to which Owner has agreed to indemnify such Developer Indemnified Party
pursuant to the provisions of this Article. Owner agrees to pay such Developer Indemnified
Party all amounts due under this Article within sixty (60) days after receipt of the notice from
such Developer Indemnified Party.
6.6 Limitation of Owner's Liability. (a) Except as such liability may be
eliminated or reduced by any constitutional, statutory, common law or other protections afforded
to public bodies or governments (for such time as Owner is a Governmental Authority),
including, but not limited to, sovereign immunity statutes, the liability of Owner (including with
respect to any gross negligence or willful misconduct), or of any other Person who has at any
time acted as Owner hereunder, to Developer for damages or otherwise, arising out of or in
connection with (i) any breach of this Agreement shall be limited to the amount of the
Development Fee; and (ii) any claim under the indemnity set forth in Section 6.2, above, or any
injury (whether physical (including death) economic or otherwise) incurred in connection with
this Agreement or the Premises, shall be limited to the amount of $10,000,000.00. As used in the
preceding sentence, the terms "breach" and "injury" shall include all breaches and injuries
arising out of the facts and circumstances resulting in such breach or injury.
(b) Nothing contained in this Section or elsewhere in this
Agreement is in any way intended to be a waiver of the limitation placed upon Owner's liability
as set forth in ~768.28, Fla. Stat., or of any other constitutional, statutory, common law or other
protections afforded to public bodies or governments.
6.7 Limitation of Developer's Liability. The liability of Developer (including
with respect to any gross negligence or willful misconduct), or of any other Person who has at
any time acted as Developer hereunder, to Owner for damages or otherwise, arising out of or in
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connection with any breach of this Agreement shall be limited to the amount of the Development
Fee earned and payable to Developer.
6.8 Survival. This Article 6 shall survive the expiration or termination of this
Agreement.
ARTICLE VII
OWNER'S COVENANTS
7.1 Covenants of Owner. The Owner covenants and agrees with the
Developer as follows: (i) the Owner shall cooperate with the Developer in the Developer's
performances of the Development Functions set forth herein; (ii) the Owner shall pay the
Development Fee to the Developer at the times and in the manner set forth herein; (iii) the
Owner shall fund all Project Costs necessary to complete the Project (provided, that this shall not
be deemed to be a waiver of claims by Owner hereunder or any other agreement); and (iv) the
Owner shall duly comply with and perform in all material respects the terms and provisions on
its part to be complied with or to be performed under this Agreement.
7.2 Additional Covenants of Owner. (a) Subject to Unavoidable Delays, and
provided that the Lease has not been terminated as a result of an Event of Default under the
Lease, the Owner hereby covenants and agrees to construct a parking garage on the Land by the
Hotel Opening Date (as such term is defined in the Lease), which such parking garage shall
contain at least 560 parking spaces to be made available to Tenant pursuant to the Garage
Easement Agreement.
(b) The covenant contained in Section 7.2(a) shall be deemed to be
made for the benefit of Tenant and the Recognized Mortgagee (as such term is defined in the
Lease) most senior on priority and shall be enforceable by such parties.
(c) Owner, and the City by its signature below, acknowledge (i)
that the covenant contained in Section 7.2(a) is a material inducement to Tenant to enter into the
Lease and the Hotel Development Agreement and (ii) that in the event of a breach of the
covenant contained in Section 7.2(a), monetary damages will be inadequate to compensate
Tenant and Developer for harm resulting from such breach and Developer shall have the right to
seek injunctive relief to compel the cure of such breach.
7.3 16th Street Opening. Owner shall diligently, and using reasonable efforts,
(i) construct, or cause the construction of, the extension of 16th Street from Washington Avenue
to Collins Avenue to provide a vehicular entrance to the Garage (the "16th Street Opening"), as
more particularly described on Exhibit G attached hereto, by the Hotel Opening Date and
(ii) coordinate the development of the 16th Street Opening with the construction and
development of the Project and the Hotel, including, but not limited to, the use of the 16th Street
Opening as a mobilization area for such construction.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.1 Events of Default by Developer. The occurrence of anyone or more of the
following events shall constitute a default under this Agreement ("Event of Default"):
(a) if Developer fails to make any payment (or any part thereof) or
disburse any amount due or payable hereunder and such failure continues for a period of thirty
(30) days after notice is given by Owner that the same is past due or undisbursed;
(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 (other than the covenants for the payment of money or as expressly set forth below)
and 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 a Default Notice, advise Owner of
Developer, intention to institute all steps (and from time to time, as reasonably requested by
Owner, Developer shall advise Owner of the steps being taken) necessary to remedy such default
(which 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,
that 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 the Premises or any interest of
Developer therein, and the foregoing are not stayed or dismissed within one hundred fifty (150)
days after such filing or other action; or
(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,
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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 the
Premises or any interest of Developer therein, 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) the termination of the Lease as a result of an Event of Default
under the Lease.
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 of such default 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, and 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.
8.2 Remedies on Default. Whenever an Event of Default shall have occurred
and be continuing Owner may take anyone or more of the following remedial steps:
(a) From time to time take whatever action at law or in equity
which may appear necessary or desirable to recover damages in an amount not to exceed the
Development Fee, to the extent earned and paid.
(b) Terminate this Agreement.
(c) Set off current and future obligations of Owner under this
Agreement against the Development Fee, to the extent earned and payable to Developer, and any
unpaid Reimbursable Expenses described in Section 2.4(c)(vi).
8.3 Events of Default by Owner. Owner shall be in default under this
Agreement if it shall fail (i) to pay any sums required to be paid by it hereunder within ten (10)
days following notice or (ii) to perform any covenant, condition or agreement which it may have
agreed to perform, after expiration of any permitted grace or curative period and receipt of any
required notice to which it may be entitled, but in no event without receipt of at least thirty (30)
days prior written notice specifying the default. If the default is other than a monetary default it
shall be deemed cured if Owner promptly and in good faith commences to correct such default
upon receipt of such notice and thereafter diligently prosecutes to completion all steps necessary
to remedy the same (which steps shall be reasonably designed to effectuate the cure of such
default in a professional manner). In no event shall Owner's liability exceed the limitations set
forth in Article 6.
8.4 Right to Enjoin Defaults or Threatened Defaults. In the event of
Developer's default or threatened default, Owner shall be entitled to seek to enjoin the default or
threatened default and shall have the right to invoke any rights and remedies allowed at law or in
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equity or by statute or otherwise, other remedies that may be available to Owner notwithstanding,
except to the extent Owner's remedies are limited as set forth in this Agreement. In the event of
any default or threatened default by Owner in any of its covenants under this Agreement,
Developer shall be entitled to seek to enjoin the default or threatened default and shall have the
right to invoke any rights and remedies allowed at law or in equity or by statute or otherwise,
other remedies that may be available to Developer notwithstanding. 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 otherwise, 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.
8.5 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.
ARTICLE IX
ADDITIONAL REPRESENTATIONS AND COVENANTS
9.1 Right of Access to Project. Developer agrees that Owner and its duly
authorized agents and representatives shall have the right at all times to enter upon the Premises.
9.2 Maintenance of Existence. Developer agrees that during the term of this
Agreement it will maintain its existence as a corporation, will not dissolve or otherwise dispose
of all or substantially all of its assets and will not consolidate with or merge into other
corporations or partnerships, or permit one or more other corporations or partnerships to
consolidate with or merge into its corporation, unless such action, prior to the occurrence thereof,
is approved in writing by the Owner's General Counselor Executive Director.
9.3 Compliance with Laws. Developer and Owner shall comply with all
Laws, including, without limitation, all applicable Laws relating to workers compensation, social
security, unemployment insurance, hours oflabor, wages and working conditions.
9.4 Developer to Furnish Certain Financial and Disclosure Information;
Accounting and Financial Services. (a) Developer shall keep complete and accurate books and
records of all transactions with respect to the development and construction of the Project.
Developer shall cooperate with Owner in any inspection and audit of Developer' s books, records
and other documents relating to the Project (collectively, the "Documents"). Should an
inspection or audit discover errors in record keeping, Developer shall immediately undertake to
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correct such errors. Developer shall use commercially reasonable efforts to ensure sufficient
control over accounting and financial transactions as is reasonably required to protect Owner's
assets from theft, error or fraudulent activity on the part of any Developer Indemnified Party.
(b) Owner and its representatives, shall have the right of access to,
and inspection and copying of, the Documents during Developer's business hours upon
reasonable advance notice for the term of this Agreement and for the applicable retention period
required by Law or by Governmental Authorities. Originals of the Documents shall be kept for
such purposes at Developer's address stated herein during the Term and for the applicable
retention period required by Law or by Governmental Authorities.
(c) At Owner's expense, Developer shall conduct an audit of the
work and those who perform it, as frequently as reasonably required by Owner, to ensure
conformance to contract specifications and to evaluate quality of performance. Copies of these
audits shall be maintained at the Project for review by Owner or its representatives.
9.5 Covenant Regarding Authorized Representatives. Owner and Developer
covenant to furnish to each other written certificates containing the names of the Authorized
Officers at the time designated to act on behalf of Owner or Developer with respect to this
Agreement. The Authorized Officers designated on such certificates shall be deemed to be the
current Authorized Officers of Owner and Developer unless and until written notification is
provided by the respective party designating a new Authorized Officer and the effective date of
such change.
9.6 Representations and Warranties of Developer. Developer represents and
warrants to Owner the following (each of which shall survive the expiration or termination of
this Agreement):
(a) that there are no actions, suits or proceedings pending or to the
knowledge of Developer threatened against or affecting Developer at law or in equity or before
any federal, state, municipal or governmental department, commission, board, bureau or agency
or instrumentality which would impair Developer's ability to perform its obligations under this
Agreement;
(b) that this Agreement has been duly authorized, executed and
delivered by Developer and constitutes a legal, valid and binding obligation of Developer;
(c) that the consummation of the transactions contemplated under
this Agreement will not result in a breach or violation of or constitute a default under any other
document, agreement, instrument or other contract to which Developer is a party;
(d) that neither Developer nor any property owned or leased by
Developer is subject to any private or governmental lien or judicial or administrative notice,
order or action which could affect Developer's ability to perform under this Agreement; and
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(e) that to the best of its knowledge and belief no elected or
appointed official, mayor, commissioner or other officer or employee of Owner or the City is
interested directly or indirectly in the profits or benefits of this Agreement or the job, work, or
services provided to Owner in connection with this Agreement or otherwise related to the
Project.
9.7 Representations and Warranties of Owner. Owner represents and warrants
to Developer:
(a) that Owner is the owner of the Property;
(b) that this Agreement has been duly authorized, executed and
delivered by Owner and constitutes a legal and binding obligation of Owner;
(c) Owner is not aware of any actions, suits or proceedings,
pending or threatened, at law or in equity before any federal, state, municipal or governmental
department, commission, board, bureau or agency or instrumentality which would impair the
ability of Owner to perform its obligations under this Agreement;
(d) that the consummation of the transactions contemplated under
this Agreement will not result in a breach or violation of or constitute a default under any other
document, agreement, instrument or other contract to which Owner is a party; and
( e) that neither Owner nor any property owned or leased by Owner
is subject to any private or governmental lien or judicial or administrative notice, order or action
which could affect Owner's ability to perform under this Agreement.
9.8 Non-Discrimination. Developer agrees it will not discriminate upon the
basis of race, color, creed, national origin, religion, age, sex or sexual preference with respect to
the construction of the Improvements, and that each contract or agreement with respect thereto
shall specifically contain this provision.
9.9 Other Documents. Developer shall deliver or cause to be delivered such
other documents which Owner reasonably requests in connection with this Agreement. Owner
shall deliver or cause to be delivered such other documents which Developer reasonably requests
in connection with this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Survival. Unless otherwise specifically stated to the contrary in this
Agreement, the provisions of this Agreement and the applicable payment, performance and
completion obligations set forth in this Agreement shall survive the execution of this Agreement
and any closing contemplated herein and shall survive termination of this Agreement, as
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applicable for a period of one (1) year after the issuance of the certificate of occupancy covering
the entire Project.
10.2 Agreement Binding Upon Parties and Successors. This Agreement shall
inure to the benefit of and shall be binding upon Owner and Developer and their respective
successors and permitted assigns, subject to the limitations contained herein. Except as expressly
authorized in this Agreement, this Agreement shall not be assigned by Developer or Owner
without the written consent of the other and any attempted assignment without such written
consent shall be void; provided, however, that Owner may assign its interests in this Agreement
to any other Governmental Authority. Notwithstanding the foregoing, Developer may, without
the consent of Owner, assign its right to receive the Development Fee to a Recognized
Mortgagee.
10.3 Modification or Amendment. This Agreement may be modified only by a
written instrument executed by Owner and Developer.
10.4 Reasonableness of Approvals. Except as otherwise expressly set forth in
this Agreement, all consents and approvals which may be given by a party under this Agreement
shall not 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 disapproval, submit to the requesting party a written
statement setting forth with specificity its reasons for such disapproval.
10.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which when taken together shall
constitute one and the same instrument.
10.6 Applicable Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Florida.
10.7 Severability of Provisions. If anyone or more of the provisions hereof
shall be held contrary to any express provisions of law or contrary to the policy of express law,
though not expressly prohibited, or against public policy, or shall for any reason whatsoever be
invalid, then such provision shall be null and void and shall be deemed separable from the
remaining provisions of this Agreement and shall in no way affect the validity of any of the other
provisions hereof.
10.8 Construction. The headings of Sections contained herein are for
convenience only and do not define, limit or construe the contents of such Sections. This
Agreement has been negotiated by Owner and Developer and therefore shall not be deemed to
have been prepared by either one of them or construed in favor or against either party.
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10.9 Gender and Number. Words of one gender used in this Agreement shall
be held to include the other gender or neuter, and words in the singular shall be held to include
the plural (and vice-versa), when the sense requires.
10.10 Entire Agreement. This Agreement, together with the attachments hereto,
contains all of the promises, agreements, conditions, inducements and understandings between
Owner and Developer concerning the subject matter hereof, and there are no promises,
agreements, conditions, understandings, inducements, warranties or representations, oral or
written, express or implied, between them with respect to the subject matter hereof other than as
expressly set forth herein and in such attachments hereto. Notwithstanding anything to the
contrary set forth in this Agreement, the terms of this Agreement shall supersede the terms of
that certain Services Agreement and that certain Letter of Intent dated as of May 3, 1995, as
amended, executed by, among others, Owner and Developer. No rights, remedies or warranties
under this Agreement are waived or modified unless expressly waived or modified in writing by
the party to be charged. To the extent there is a conflict between the terms of this Agreement and
such other agreements or Letter of Intent, the terms of this Agreement shall prevail.
10.11 Waivers. Failure by either party to complain of any action, non-action or
default of the other party hereunder shall not constitute a waiver of the aggrieved party's rights
hereunder unless expressed in a writing executed by such aggrieved party. Waiver by either
party of any right for any default of the other party, including a waiver determined to occur as the
result of an action or inaction, shall not constitute a waiver of any right for either a subsequent
default of the same obligation or for any other default, past, present or future.
10.12 Corporate Obligations. It is expressly understood that this Agreement and
obligations issued hereunder are solely corporate obligations, and, that no personal liability will
attach to, or is or shall be incurred by, the incorporators, stockholders, officers, directors, holders
of other ownership interests, as such, of the Owner or Developer, or of any successor corporation
or other successor entity, 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 6, 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 or director, holder of other ownership interest, 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.
10.13 Nonliability of Officials and Employees. Except as otherwise provided in
Article 6, no member, official or employee of the Owner or the City shall be personally liable to
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; and, except as otherwise
provided in Article 6, 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
Person, or under or by reason of the obligations, covenants or agreements contained in this
-34-
WS-MI962620.055
9/20/96
Agreement or implied therefrom are expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement.
10.14 No Partnership. 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 Project, or for
any other purpose whatsoever. Accordingly, notwithstanding any expressions or provisions
contained herein, nothing in this Agreement, or the documents executed by the parties with
respect to the Project 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 between the parties hereto. The provisions of this
Section shall survive expiration of this Agreement.
10.15 No Third Party Rights. 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 Lease) shall be third party
beneficiaries hereunder to the extent same are granted rights hereunder.
10.16 Certificates by Owner and Developer. Upon request, either party shall
provide a written statement to the requesting party certifying as to the relevant information
required pursuant to Article 27 of the Lease with respect to this Agreement and the date to which
amounts payable hereunder by either party have been paid.
IN WITNESS WHEREOF, each of Owner and Developer has caused this
Garage Development Agreement to be executed by its duly authorized officer as of the date first
above written.
ATTEST:
MIAMI BEACH REDEVELOPMENT
AGENCY
Jo ~$JMck
Ro ert Parcher
City Clerk
By:
Its:
(Signatures continued on next pa
-35-
FORM APPROVED
REDEVELOPMENT AGENCY
GENERALCO~
By d1Il#L
Date jI}-(J /! 6'
W6-MI962620.055
9120/96
ATTEST:
-36-
W6-MI962620.055
9120/96
ST. MORITZ HOTEL CORP., a Florida
corporation
~
:)0 CCe A-d \-e/
.
Its: ~1'Or Vl c...<::. ~5.lc9ut..
LIST OF EXHIBITS ATTACHED TO THIS GARAGE DEVELOPMENT
AGREEMENT
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Legal Description of Property
Construction Plans
Draw Request
Schedule of Performance
List of Consultants
Development Budget
16th Street Opening
W6-MI962620.055
9/20/96
EXHIBIT A
Legal Description of Property
WS-MI962620.055
9/18/96
LEGAL DESCFr/PT/ON:
Lats 8,9,10,11,12 and 13,Block 51,F!stersFfrst SubdIvIsIon at .Alton Beacn.occordlnq to tte
Plat tterd, as r(!)C()rded In Plat Book 2. Page T? of tte Pub/lc ,Records of Dade County, Fiorrda,
tOt;t!JfhtJr with all of 16th Street (A"e~ 'c-Ues.s and except tm fo/I()Nlng descrIbed parcel:
BEGINNING at tm Souttwest corner of Block 54 of sold FlstrJrs Ffrsf SubdivIsIon of Alton
8tJactf Plat: thtJnce North 8Ir CY 53- East along tilt! South IlntJ of sold Block 54,0 dIstance of
443.08 f..to tilt! SouthtJost corntJr of sold Block 54: tllt!nce South ar 35~ 04' West. a dIstance of
96.26 f..to a poIrt of cusp with a tangent curve COf)(;(MJ to tte SaJfhNest: tteroe along tilt! arc of
sold CUfWJ to tte Ifft,frNlng 0 radIus of 25.00 f. and 0 certral angle of 9(100' en, an arc dIstance
of 3927 f..to a poIrt rf tangtJnGy: thtJnce North SZ 24' 5~ WtJSt.a dIstance rf 2475 ff!X!JI: ttrJnce
SaJfh 8800' 53' west along 0 line S.oo f8tJI North of and parallel with os mt!JOsurtJd at rlgtt angles
to tre North line of Block 51 rf sold plat,a dIstance at 382J8 f. to 0 poIrt on tilt! Easterly Rlqtt
-of.JNoy lIne of Wostington NtJfUJ: ttence North or 59' If west along sold Easterly Rlgtt-of-
Wc.y /Ins.a dIstance at 621XJ f. to tte SouthNest cornt!Jr of sold Block 54 and tte Palrt of begInnIng.
Sold lands lyIng and btJlnrJ In tm Cf'Y of Mfaml8<<Jch and contaInIng 65.910 square feet 05131
.Acr(6) more or 1865.
ORA WING(S)
EXHIBIT "R .,
16TH STREET GARAGE
LIST OF DRAWINGS At"fD SPECIFICATIONS
NO. PAGES
PREPARED BY:
DESIGN DEVELOPMENT SUBMISSION
LS-IOO
C-l THRU C-5
0-100
A-I00 THRU A-I02
A-300 THRU A-800
S-101 THRU S-301
FP-200 THRU FP-302
M-200 THRU M-301
P-200 THRU P-302
E-200 THRU E-502
1
5
1
3
26
18
7
3
7
9
SA VINO & MILLER
CONSUL-TECH ENGINEERING
ZYSCOVICH INC.
ZYSCOVICH INe.
ZYSCOVICH INC.
DONNELL DUQUESNE & ALBASIA
STEVEN FELLER P.E. INe.
STEVEN FELLER P.E. INe.
STEVEN FELLER P.E. INC.
STEVEN FELLER P.E. INe.
A-200 THRU A-300
STRUCTURAL SYSTEM ADDENDUM
SPECIFICA nONS
03300-04220
05520-10520
14200-14240
15000-16000
5
ZYSCOVICH INC.
NO. PAGES
PREP ARED BY:
67
84
9
37
DONNELL DUQUESNE & ALBAlSA
ZYSCOVICH INe.
ZYSCOVICH INe.
STEVEN FELLER P.E. INe.
DATE:
2/1/96
3/1/95 (96)
2/1/96
2/1/96
3/4/96
3/4/96
3/1/96
3/1/96
3/1/96
3/1/96
3/13/96
DATE:
3/25/96
3/25/96
3/25/96
3/25/96
EXHIBIT C
Draw Request
Appropriate AlA G702 (1992 edition) or other form substantially similar thereto.
WS-MI962620.055
9/18/96
EXHIBIT D
Schedule of Performance
W6-MI962620.055
9/18/96
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ARCHITECT-OF-RECORD
Zyscovich. Inc.
STRUCTURAL ENGINEER *
Donnell. Duquesne & Albasia
MECHANICAL ENGINEER
Steven Feller & Associates
PARKING CONSULTANT
Ramp Associates
LIGHTING DESIGNER
PHA Lighting Design
ELEVATOR ENGINEER
John Van Duesen & Associates
CIVIL ENGINEER
Consul- Tech Engineering
LANDSCAPING ARCHITECT
Savino & Miller
~ ;< h l ~i l t.
16TH STREET GARAGE
LIST OF CONSULTANTS
* May be augmented by structural-shell subcontractor's engineer.
EXHIBIT F
Development Bud2et
WS-MI962620.055
9/18/96
L~(Ill;jit ?
16th STREET GARAGE PROJECT BUDGET
(INCLUSIVE OF 15TH STRfET IMPROVEMENTS)
9/20/96
1 HARD COSTS
Base Building/Construction
Trade Costs
Vertical Scope(Garage & Retail) 8,725,498
Horizontal Scope (16th street) 8!50,000
Adjulted Total Trade8 7,575,498
G.n....' Condition. 530,285
G.C. Fee 227,265
Bond. 113,632
G.C. Contlngencv 100,000
Subtotal. Ba.e Buildlna 8,548,878
landscaping/Irrigation 75,000
Environmental Remec:llatlon 50,000
Building Permita/Feee -
Pre-Construction S.,."icee 30,000
Equlpm.ntlG...phlca 275,000
R.location - Historic structu.... 350,000
Tenlnt Improvem.nt A1low.nce -
TOTAL HARD COSTS 9,326.678
II SOFT COSTS
Consultants
ArchitectllEngin..,.. 448,000
others 283,700
Reimburaablee eo,ooo
Subtotal . Conlultantl 791,700
Legal
Agreements 30,000
Entitlements 15,000
Bond Underwntlnl:ll other 50.000
Subtotal. Leall 95,000
Accounting/Audita 25,000
Retail Leasing
Marketing/Collateral 75,000
Commissions .
Subtotal - Rail L.eaaina 75,000
TOTAL SOFT COSTS 988,700
a........_... ...
Page 1
_1:10 A"
~""...-
16th STREET GARAGE PROJECT BUDGET
(INCLUSIVE OF 11TH STREET IMPROVEMENTS)
9120/96
III FINANCING COSTS
Construction Interest 0
Financing FeeslExpenses
Bond Expenses ~
Title Fee
Legal
Appraisal
Lender's Inspecting Architect
Mortgage Recording Tax
Other 8,500
TOTAL FINANCING COSTS 8,500
IV OTHeR COSTS
Site Acquisition 3,500.000
Real Estate Tax..
Insurance (Builder. Risk) 100,000
GeneraUAdmini"rativ~n-8i. 1 00,000
Impact/Connection FeeeJDepOllitrl 100,000
T8ltlng/lnspectlon Service. 150,000
TOTAL OTHER COSTS 3.5150,000
TOTAL PROJECT COSTS 14,21551,878
Development Fee. St. Moritz 2051,401
City RepreaentllUve Fee ~ T1shman 100,000
Project Contingency 1,000,000
TOTAL PROJECT COSTS $ 15,579,279
Page 2
~:stAII
EXHIBIT G
16th Street Openin2
Owner will cause the construction of the extension of 16th Street from Washington Avenue to
Collins Avenue, which construction will include, but not be limited to, the construction of a
street, sidewalk and underground drainage infrastructure; and the installation and/or placement of
lighting, landscaping, furniture, signage and traffic signalization.
WS-MI962620.055
9/20/96