TABLE OF CONTENTS

Page
TERMS OF AGREEMENT ....................................................
2

ARTICLE
1.

DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.
CONSTRUCTION . . .9
........................
ARTICLE 2.
2
1 Conditions Precedent to

Developer'
. .ction
. . . .
of the PrQject.9.S~
Compl
e
t
i
o
n
of
Construction
2 Commencement and
of Construction

s Commencement

2.

. . . . . . . . . . .

of
......
the Project. 10
COll Pletion of Construction
Section
2.
3

11

............
Section
PLANS AND SPECIFICATIONS . .12

ARTICLE3.

of the

Project. . . . . . . . .
3.
Specifications. . .12
.

Section

Ap,proval and Modification ofPrelimin~Plans and

proval and
2 Ap,
3.

Modification

of

3.

3 Ript of
to Proce dwith

Develqper
Di~

Plans

and Specifications. ............

13 Section

4
vedChanies. . .15. . . Section 3.

COll Pliance

with

Requirements:

Construction
5 Bud~et and
3.
6 Desip and
16 Section 3.

Standards. ...........

15

Section

Chan~

Orders. . . . . . . . . . . . . . . . . . . . . . . . . .

Decor. ..........................................

16 Section 3.
7

Section
.......................................
Develqpment Di$pute. 17

3.

8 Develo. per's Fee

and

E~
es.17
................................

ARTICLE

Section
O~
ItPARTICIPATION.. . . .18
..................
4.

4.1Owner'
sRiiht

toUse

Personnel. . . . . . . . . . . . . .
Field

18

TABLE OF CONTENTS

continued)

Page

ARTICLE
FINANCING OF PROJECT
6.
CONSTRUCTION AND DISBURSEMENT

PROCEDURES . . . . . . . . . . . . . 25
. . . . . . . . . . . . .Sect.ion . . . . . . . 6.1

Owner'

s Con1ributions. . . . . . . . . .

6.

DevelQper'

25Section

Con1ributions. . .26
..................................

Section
6.
3
26 Section 6.
E:=..
.
.
.
4
ted

Processina. .......................................

E~
INSURANCE.. .27
. . . . . . . . . . . . . . . .ARTI
. . . .C.LE. . . . . . . . . .
26 ARTIcLE 7.

8.

DAMAGE,

DESTRUCTIONAND

RESTORATION ....................... . 27
Section

8.
1

Casualty. .27
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .on
...................

Se~

8.
2 Effect of Casualty
on

this A~
ent.27.ARTICLE
. .

9.
. . . . . .CONDEMN" ATION
. . . . ....................................................
. . . . . . . . . . . . . .

27
Section 9.

1
27
Takina.
. Section
. . . . . . . . . . . . . . . . . . . . . .
9.2

EffectofTakini

ment. ............................
28
onthisA~

ARTICLE

TABLE OF CONTENTS

continued)

Page
Section

12.
1 Mainteqance

ofPrQject

Section
Site.29
..................................

12.

2
Waste
Di~
sa1.

............................................

30 ARTICLE 13.
REQUIREMENTS. . . . . . . . . . . . . . . 30
. . . . . . . . . . . . . . . . . Secti
. . . o.n. 13.
................
1

14.

ARTICLE
ReqJIirements. 30
.............................................
31 Section 14.1 Creation
DISCHARGE OF LIENS ...............................................

of
of
Liens. 31
. . . . . . . . . . . . . . . . Section
. . . . . . .14.
. . . . . . . . . . .2
. . . . . DischarKe
....

Liens. .........................................
31
Section

14.
3

No

Authority

Contract

in

to

Name
ARTICLE 15.
.....................
of Owner. 33

NO

ARTICLE
LIABILITY FOR INJURY OR DAMAGE,ETC.33 .......................
16.
INDEMNmCATION . .33
. . . . . . .Section
. . . . . . . . . . . . . . . . 16.1 Indemnifcation Generally. ...................................
33

Section16.

2 Governs

. . . . . . . . . . . . . . . . . . . . . . .
33 ARTICLE 17.
3 Survival.....................
33 Section 16.
Apement. ........................................

CERTIFICATES

ARTICLE 18.
RIGHTTOPERFORM

BY OWNER AND

OTHER
THE

34
DEVELOPER .........................

PARTY'

TABLE OF CONTENTS

continued)

Page
ARTICLE
EVENTS OF DEFAULT,
19.

IUE~DEES,
L~
ATlONS,

CONDmONAL

35
ETC. .......................
.... ...........
19.
1 Definition.................................................
Section

35

................
Section19.2 Enforcement of Performance. .38

Section

19.3

EJij)
tion

ira.
Section
......................
and Tennination of Aareement. . 38

19.

Strict

Perfonnance. .........................................

38 Section 19.5
6 emedies
~ under
RiahttoEqjoinDefaults .....................................39 Section 19.

Bankruptcy

and Insolvency

39

Section 19.7 I~

Codes. . . . . . . . . . . . . . . . .

on..................................
39 ARTICLE 20.NOTlCES,
CONSENTS

AND APPROVALS. . 40
. . . . . . . . . . . . . . . . . . . . . . . . . . . Section

20.

Service
and Other Communications. .40
.....

of

Notices

Consents

and

Approvals. .................. . . . . . . . . . . , . . . . . . . .

42

Section
20.

3 Notice
of
21.FINANCIAL

44 ARTICLE
DetailedPlans. ......................
...............

RECORDS. . . . .44
REPORTSAND
. . Section21.
. . . . . . . . . . . . . . . . . . . . . . . .1
..

Books
and

Section20.2

TABLE OF CONTENTS

continued)

Page

ARTICLE
HAZARDOUS
25.

MATERIALS. . . . . . . . . . . 48
. . . . . . . . . . . .Section
.....................
25.

General

Provision. ..........................................

48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25.2 Survival............

48

Section

ARTICLE

26.

48 Section
MISCELLANEOUS ...................................................

26.

Govemin~Law and Exclusive

48 Section
Venue. ..........................

26.
Section
50

5 Remedies
6

Performance at Each

Party'

and
Section

and

51 Section

Section 26. 3 Entire Aareement. etc.49

...... . . . . . . . . . . . . . . . . . . . . . . . .
Invalidity of Certain Provisions. ...............................
26.
4
Section 26.
Cumulative. 50
. . . .Section26.
...................................

.....................
2 References.. . .48

SoleCost
EJQ>eDSe. ...... .. .. . . . .. 50
7 RecoiJUzed Morti~ eeCharl es
26.
Fees.50
.......................

Section

26.8

Intentionally

Deleted. .50
. . . . . . . . . . . . SeC~
. . . . . . . . . . . .on
...............

26.

9 Successors and Assip. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26.10
Notice

of Defaults.51
.. . . . . . . . . . . . . . . . . . . . .Section
. . . . . . .26.
.............

11

TABLE OF CONTENTS

continued)

Page

EXHIBITS
Exhibit A
LAND ...............................................................
55

Exhibit 2.
100 .

COMPLETION

GUARANTEE 56
. . . . . .Exhibit
. . . 3.:
. . . . . . . . 1(
.........................
a)
PRELIMINARY

PLANS AND
SPECIFICA

nONS . . . . . . . . . . . . .

soo DEVELOPMENT
66 Exhibit 3.
BUDGET ............................................
68
Exhibit

DEVELOPER'
Jl).
3.
8(
S

FEE
DISBURSEMENT

ANALYSIS . . . . . . . . . . . .

800
69 Exhibit 3.

MILESTONE . . . .70
.....................................................

INSURANCEREQUIRED
3~)
Exhibit5.

CONTRACTOR. . . . . . . . . . . . . . .
OF

71

HOTEL DEVELOP~

NT AGREEMENT

is entered into as of the

Agreemenf')

THIS HOTEL DEVELOPMENT AGREEMENT ("

1998 ( the Commencement

"

day of ,

MIAMI BEACH REDEVELOPMENT

LIMITED

PAR1NERSIDP,

Florida limited

Date")by and between

the

AGENCY ("Owner")and RDP ROYAL PALM HOTEL

partnership (" Developer").

RECITALS:

A.

In February

1993, the

CityCenter/

Village Redevelopment
a Redevelopment Plan.

Historic Convention

was officially established by the adoption of

The Redevelopment Plan was the result of the combined efforts of the City of Miami Beach ( the "
City"),
Owner,Metropolitan Dade County and the State of Florida. The Redevelopment Plan represents
of Owner and the City to foster the development of convention quality hotels,
effortandcom i1ment
the
ancillary improvements and facilities, and necessary linkages to the Miami Beach Convention Center
the " Convention Center''). Pursuant to the Redevelopment Plan, Owner has acquired the
1535
properties commonly known as the Royal Palm Hotel which has a street address of
of
Collins Avenue, Miami Beach,Florida and the Shorecrest Hotel which has a street address
make
avai
l
a
bl
e
for
agreed
to
1545 Collins Avenue, Miami Beach, Florida,both of which Owner has
a convention center hotel which will serve as a part of the
and Revitalization

Area

Plan. B.the. City and Owner also have determined to make a substantial
commitment to provide the.African-American community with an opportunity in the hospitality
withthatcom.mi1ment,Owner has agreed to make available the Royal Palm Hotel
industry.In connection
Redevelopment

and the Shorecrest Hotel and additional financial incentives

for

an African-American owned

the Redevelopment Plan and the commitment to the

African-American community referred to in the preceding paragraph, the Agency published Request
entitled "
Number 45- 9596 ( the "RFP"),
City
for Proposals
American
AfricanArea
and
Revi
t
a1i
7
ati
o
n
VilageRedvlopment
Hotel Development Opportunity",
CenterlHistoric Convention
C. In furtherance of

hotel.

1996,
2,
on January
1995 and
December 27,
amended
and
the
for
bids
sought
RFP
3,
1996 and March 5,
development
1996.The

dated

January

operation of
On June 5,
African- American Persons. D.
1996,after a public review process, Owner selected an Affiliate of Developer from among
the groups that submit ed proposals pursuant to the RFP and directed representatives of Owner
under which Developer or its Affiliate would develop, own and operate
negotiate the

to

convention center

hotel

by

terms

the convention center hotel referred to

further definedbelow)

owned

in accordancewith
the

requirements of

as
"
above the
( Hotel",

Owner and Affiliates of Developer entered into a Letter of Intent (the " Letter of
5,
dated March
Intenf'),
1997,and approved by the City,which,among other things,
provides for the development, construction, furnishing and equipping of
E.

Hotel.F.
Owner and Developer entered into that certain Agreement of
the "Ground Lease")between the Owner and the Developer and dated of even
the

Lease (

herewith.G.Owner and Developer desire to enter into a definitive agreement for

the development, construction, furnishing and equipping of the Hotel in accordance with this Agreement
and the standards set forth in the plans and specif cations described in
date

this Agreement. TERMS

between

OF AGREEMENT: NOW, THEREFORE, it is hereby mutually covenanted and agreed by and

o that this Agreement is made upon the terms, covenants and conditions
the
parties h~

hereinafter

set
forth.
ARTICLE 1.DEFINITIONS For all purposes of this Agreement the terms defined
1 shall have the following meanings and the other provisions of

in this Article

this Article 1 shall apply: Accounting Principles"shall have the meaning

Lease.AfIiliate"or "Affiliates" means,with respect to any Person,
any other Person that,directly or indirectly, through one or more intermediaries, controls or is controlled
by,
or is under common control with,such Person. For purposes hereof, the term "
control" ( including the terms c"ontrolled by" and "under common control with")shall mean the
liate"
possession of a Controlling Interest. Unless the context otherwise requires, any reference to Affi"
provided

in

in this Agreement shall

to

be

the

deemed to refer

an

the

Ground

Affiliate of Developer. Agency"

means

Miami

Beach Redevelopment Agency.

Architect"

means

Arquitectonica

a Florida coIpOration. Building Equipment" has the meaning

International Corp.,
day"means a day other than Saturday,
or business
"
Sunday or a day on which banking institutions in the State of Florida are authorized or
provided

in

the

Ground

obligated by law or

executive order

tobe

closed.ACMB\
JNM\
:\ HTLDEV

Lease.

Business Day"

City"

means

City of Miami Beach, a municipal corporation of the

Commence

Construction"

or "

State of Florida.

of Construction"

Commencement

means

the

ofmajor work (such as pilings or foundations) for construction of the Improvements

Specifications to be performed in connection with Construction of
the Project. Promptly after Commencement of Construction,the Owner and Developer shall enter
into an agreement acknowledging the date of Commencement of Construction. Any and all
preliminary site work (including, without limitation, any environmental remediation and ancillary
commencement

in accordance with the Plans and

demolition) shall not be deemed to be Commencement of Construction.

Commencement Date" has the

Completion

Deadline"

means

Delays.Completion

Guarantee" has

2.
1(d).
Connection

provided

42)months after

forty-two (

the meaning provided in

Fees"has the meaning provided

6.
3(
b).
Consenting Party" has

the Section
meaning

the date which is

Date,subject to extension due to Unavoidable

the Construction Commencement

means

meaning provided in the preamble of this Agreement.

Section

in
the

c).
Construction" or
in Section 20.2(

Construction

of
"
the Project"

the
construction

on

the

Land

of

the

Project. Construction

Agre ment(

s)"

means, colectively, any general contractor' s agreement, architect' s agreement, engineers' agreements, or any
other agreements for the provision of labor,materials or supplies entered into with respect to the Construction
of the

Project,

as the same may be amended

or otherwise modified

any

to time.Construction Commencement

2.
meaning provided in Section 2.
Construction Work."means
provision
Agreement
the Construction
this
and/
or
performed under any
of

Date"
has
construction work

from time

the

Agreements with respect to the Construction of the Project. Contingency" means

forth as hard and soft construction costs in the Development Budget on
line item
Contractor"means any contractor, subcontractor, supplier,vendor or materialman supplying services or
the

date

hereof as

labeled "

the amount set

Contingency".

Interest" meansthe ownership

goods in connection with the Construction of the Project.Controlling
interests
Person or the
in a
of greater than fifty percent (500fc>>)of the voting ownership
of the votes necessary to elect a majority of the
ownership of greater than fifty percent (50%)
Board of

Directorsor

othergoverning

body

of

CPM"bas the

meaning provided in Semon

CPM Schedule" bas

2(
b).

4.

the meaning provided

in

Default" means any condition or event, or failure of any condition or

b).
2(
const
i
t
u
t
e
s,
would
event to occm,which
or after the giving of notice and lapse of time (in accordance with

Section4.

the terms
an Event

of

this Agreement) constitute,

of

Default. Default Date"means

the

date

which is ninety- six

96)

months after the Commencement

meaning provided in

Date.Default Notice" bas

Deficit"
1(b).
Section 19.

bas the meaning provided

Deficit Increase" bas the

in Section 3.8(d).

meaning provided in Section

Detailed Plans" bas

d).
Developer" means
v)(
2).
a)(

RDP

Royal

the

Palm Hotel Limited

the meaning provided

Partnership, a Florida limited

3.8(

in

partnership,

successors
its.

and assigns. Developer' s Fee" has

meaning provided

in Section

the

a).
Development
3.
8(

Budget"has the meaning provided in Section 3.

Development Dispute" has the
a).

Section

5(

meaning provided in Section

Development Fee"bas
7.
3.

the meaning provided in

Section

a).
Event of Default"has the
8(
3.
meaning provided in
Amount" bas

1.Excess
Section 19.

the meaning

d).
provided in Semon 3.8(

Existing Hotels" bas the

meaning provided

Fees"bas the meaning

FF &
E"

meaning
basthe

Withheld

the
providedin

1.
in Section 5.

a).
provided in Semon 6.3(
Ground

4.
2(

Garage Easement Agreement" has the meaning provided in the Ground Lease.

price

General Contractor"means the general contractor under that certain guaranteed maximum
contract for the Construction of the Project entered into by Developer and such general

contractor.

Authority or Authorities" means the United States of America,the State

of Florida, the City, Metropolitan Dade County, the Agency ( in its governmental as opposed to
proprietary capacity) and any agency, department, commission, board, bureau, instrumentality or
political subdivision ( including any county or district) of any of the foregoing, now existing or
hereafter created,having jurisdiction over Developer or any owner, tenant or other occupant of, or
over or under the Project Site or any portion thereof or any street, road, avenue or sidewalk
comprising a part of, or in front of, the Project Site, or any vault in or under the Project Site, or
airspace over the Project Site.
Governmental

that certain Agreement of Lease between Owner and Developer

of the date hereof,pursuant to which Developer (as tenant) has agreed to lease the Land.
Ground Lease"

dated

as

means,

Guarantor"means R.Donahue Peebles,

individually.

Hearing" has the meaning provided in Section

22.

ineans a convention center hotel (including the Building Equipment)

described in the Plans and S-pecifications and other Improvements to be constructed on the Land
in accordance with the terms of this Agreement and the terms of the Ground Lease (together with any
1(
b).

Hotel"

and all permitted improvements thereto and

Costs" means all hard and soft construction costs
incurred in connection with the development and Construction of the Project The projected
Hotel Construction Costs are as set forth in the Development Budget, attached hereto and incorporated
Hotel
replacements thereot).

by

reference

herein

Construction

as

this "Agreement")
(
a).
Hotel Development Agreement" or
5(
3.
at
t
a
chment
s
hereto,
as
exhibits
all
any of
and
means collectively,this Hotel Development Agreement and
the same may hereafter be supplemented, amended, restated, severed, consolidated,
extended, revised and otherwise modified, from time to time,either in accordance with the terms of this
Agreement or by mutual

Exhibit

agreement

of the parties. Hotel Opening Date"has the meaning provided

means any building ( including

in the Ground Lease. Improvement( s)"
and other improvements and appurtenances of every
footings and foundations), Building Equipment, FF E&
the
kind and description now existing or hereafter erected, constructed, or placed upon
LandwhethertemporaryorA:\
{
JNM\

CMB\ HllDEV

permanent), and any and all alterations and replacements thereof, additions thereto and substitutions
therefor.
Institutional Lender" has the

Land"

means

meaning provided in the Ground Lease.

the real property described in Exhibit A attached hereto and

incorporated by

reference herein.
Late

Charge Rate" has the meaning provided in the Ground Lease.

Letter of Intent" has the

Loan Documents"

guaranty

or

Develo~'

meaning provided in Recital E hereof.

collectively, any loan agreement,promissory note, mortgage,

evidencing or securing a loan secured by, among other collateral,

means,

other document
interest in the Ground Lease

Mortgage"

Ground
a

has the

or

the Hotel.

meaning provided in Section

Lease.Mortgagee"

means the holder

Mortgage. Notice" has

in Section

b)
of the
11. 2(

of

the meaning provided

20.1.
Operating

Equipment"has the meaning provided

Lease. Owner" means the Agency ( or the City if the City shall succeed to
the interest of the Agency hereunder),acting in its proprietary capacity, and any assignee or
transferee of the Agency or the City if the City shall succeed to the interest of the Agency hereunder)of
the entire Owner' s Interest in the Premises, from and after the date of the assignment or transfer
pursuant to which the entire Owner' s Interest in the Premises was assigned or transferred to
in

the

Ground

Interest in

the Premises"has the meaning provided

such

assignee

or transferee. Owner' s

in

the

Ground Lease.Owner' s Consultant" means such Person as Owner may

designate

in writing to Developer

from time to time.

Payment and

Performance Bond"has the

meaning

Permits and Approvals" shall mean any and all

1(
e).
Section 2.
permits and approvals required to be issued by Governmental Authorities in connection with
the Construction of the Project, including, without limitation, the City of Miami Beach building permits, the
approvals of the City of Miami Beach Design Review Board,the
Dade County Department of Environmental Resources Management permits,the Florida
Department of Environmental Protection coastal construction pennit, and any utility access
provided in

agreements with

allapplicable

utilitycompanies.

JNM\
A:\

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.
Person"

means an

Plans and

individual,

Specifications"

means

the final

plans

and

specifications

for the

Project, the

finish schedule, the hotel program and the differentiation schedule, each as established in accordance
3,as the same may be modified from time to time in accordance with the
with Article
Section

provisions of

2 hereof. Preliminary Plans and Specifications"means the preliminary plans

3.
and specifications for the Project, the preliminary finish schedule, the preliminary hotel program
described on Exhibit 3.
and the preliminary dif erentiation schedule
a)attached
1(
time
to
be
modi
f
i
e
d
from
same
may
the
as
herei
n
,
time in accordance
hereto and incorporated by reference
provisons
with the
h~f.
b)
of Section 3.1(

"
Project Agreements"means all ofthe
Project"has the same meaning as Hotel."
agreements between Developer and Owner
and/ or the City listed on Exhibit 19(

h)
attached hereto and incorporated by reference herein. Project
Fee"has

Site"means

the

the

meaning provided in Section

Management

a).
8(
Project
3.

of the

Land and all portions

Improvements.

Proposal" means the development proposal

dated

to

April 1 1996,
,
submitted by Developer in response

the RFP. RFP" has the meaning provided

Recital C

hereof. RP Improvements"has the meaning

in
d).
provided in Section 3.1(

c)
2(
Recognized Mortgage" has the meaning provided in Section ll.
pr
o
vi
d
ed,
Mortgage;
hol
d
er
a
Recognized
of
however,that,
of the Ground Lease. Recognized Mortgagee"means the
Lease,
a
the
Ground
of
2(
by
extent
permitted
Recognized Mortgagee
Section 11. c)
except to the
of
a Recognized Mortgagee that
may not be an Affiliate of Developer ( except if Developer is an Affiliate
has caused the Ground Lease to

be assigned to such Affiliate in lieu of foreclosure of

Redevelopment Plan"means that
the Recognized Mortgage of such Recognized Mortgagee).
certain plan addressing the rehabilitation, conservation and redevelopment of that certain City CenterlHistoric Convention Village Redevelopment and
Revitalization Area

describedtherein,
of

which theLand

forms

ved by the Board of County Commissioners

February of 1993 by the Owner and
extensions or
31,2023.As used
on March
Florida in
the City and of Dade County,
Plan"
shall
n the Recitals, herein, except
March, 1993, and expo i.
not include any

references to

vided in Section
e

meaning provided

3.

8(

meaning

d).
Required Contingency Percentage"

has

in Exhibit

Requirements" has the

d).
3.
8(
has

Contingency" has the

amendments thereof. Required

the Redevelopmen
"

Sale of the Hotel"

meaning provided

the meaning provid in

the

Ground Lease. Shorecrest

Improvements"

has the m . g
provided in Section 3.
Complete"
or "Substantial y Completed" means, with respect to the Project,
"
d).
1(
Substantial Completion" or Substantia
e been substantial y completed in accordance with
that 1)
( it shall ha
the Plans
b)(
i)
hereof
3(
Architect described in
the certificate fthe
and Specifications, ( 2)
Section 2.

shall have been obtained,

of the provements
certificates of occupancy. Term"means the period com encig
hereunder,expiring on the i ce of a Final
items with respect to completio of the Hotel
Agreement, subject,however, to survival of any visions
all
and (3)

therein

shall have been issued temporary

on e Com encement Date and, unless sooner terminated as
_ provided

CO and the completion of all reJl1sining punch list

in accordance with the terms of this
of

this

Agreement

that

are expressly

(the
expiration or terminati n as
stated herein to survive such
acts
slowdowns,
delays
Unavoidable Delays" means
lockouts,
of God,
due strikes,
case may be).
casualty, catastrophic weather conditions,
inability to obtain labor or materials, war,enemyacti n, civil commotion, fire,
y unless
(resulting from disputes between
a court order which causes a de
ent or former employees, officers, members, .
among the party alleging an Unavoidable Delay,

or
partners or

(
of such alleging party or or
present or former employees,officers, partners,
alleging party),the application of any Requirement,
such
members or shareholders of such Affiliates of
or another cause beyond such party' control or which, if susceptible to control by such party,
shall use reasonable good faith efforts
party
shall be beyond the reasonable control f such party. Such
twenty (20)days after such party knows of the
to notify the other party not later
occurrence of an Unavoidable Delay; provided, wever,that either party's failure to notify the other
Delay shall not alter, detract from or negate its character
of the occurrence of an event constituting an navoidable
in the loss of any benefit or right granted
0 erwise result
an Unavoidable

as

shareholders

Delay or

( any party'
to the delayed party under this Agreemen. In no event shall i)
financing constitute an Unavo"
idable Delay"
s financial condition or inability to fund or obtain funding or
such
to
r
e
spect
with
Devel
o
per
)
caused
by
is
inability
not
except for an Institutional Lender' s inability to fund,which
anydelay
party andii)
(

a
arisingfrom

party'

s (

Agreement or any of the Project Agreements constitute an " Unavoidable Delay" with respect
to such party' s obligations hereunder. The times for performance set forth in this Agreement (other
than for monetary obligations of a party and with respect to completion of the Project by the Default
Date) shall be extended to the extent performance is delayed by Unavoidable Delay, except as
otherwise expressly set forth in this Agreement.

this

Withheld Amount" has the

meaning provided

in Section

3.

8(
d).
1 Conditions
2.
Commencement

CONSTRUcnON Section
2.

ARTICLE

Precedent to Developer' s

of

Construction

of

the

PrQject.

a)
Developer shall (subject to Unavoidable

the
year from
by not more than one ( 1)
Delays)obtain all Permits and Approvals
the
Developer shall not Com enc Construction of
c),
Commencement Date.Subject to Section 2.1(
and
have
shal
l
Developer
Project unless and until (i)
obtained delivered to the Owner's Consultant
Developer
(
copies of all Permits and Approvals required to Commence Construction and ii)
be carried
requi
r
ed
to
shall have delivered to the Owner original certificates of the policies of insurance

pursuant
The Owner (solely in its capacity as
the provisions of Article 7 of this Agreement. b)
to
the owner of the Project Site and not in its governmental capacity)shall
in obtaining the Permits and Approvals required by Section 2.
reasonably cooperate with Developer
and any necessary utility access agreements, shall sign any application reasonably made by
a)
1(
Developer which is required in order to obtain such Permits and Approvals andutility
access agreements and shall provide Developer with any information and/ or documentation not
otherwise reasonably available to Developer ( if available to the Owner) which is necessary to
procure such Permits and Approvals and utility access agreements. Any such accommodation by Owner shall
be without prejudice to,and shall not constitute a waiver of,Owner's rights
to exercise its discretion in connection
with its governmental functions. Developer shall reimburse the Owner,
pocket cost or expense
ofany reasonable outs
demand,
for
days after the Owner'
withinten ( 10)
payable to the Owner' s technical consultants ( other than the Owner' s Consultant and Owner' s
employees),such as architects and engineers, so incurred by the Owner in connection with
obtaining
Owner's assistance in

Permits and Approvals and utility access agreements required by Section 2.

Developer shall not Commence Construction of the Project, or any portion thereof, unless
c)
a).
1(
extent required
and until the Owner shall have approved the Plans and Specif cations ( to the
on
a fastherein).However, if Developer chooses to perform any Construction of the Project
and
track"basis,Developer may request the necessary approval of the Owner in stages
the

perform thatportionoftheConstructionWork
which

has

comply with all other requirements with respect to such portion of the Construction Work), even if
Work have not yet been
progress plans and specifications for other portions of the Construction
prepared.
d)
furnish to Owner

Prior to Commencement of Construction of the Project, Developer shall

in the form attached
Guarantee"),
completion guarantee ( the " Completion

d),
2. 1(
from Guarantor, pursuant
incorporated by reference herein as Exhibit
to which,among other matters,Guarantor guarantees timely completion of

hereto and

Perfonnance Bond. Prior to Commencement

of Construction of the Project, Developer shall cause the General Contractor to furnish to Owner a
Performance Bond"), in a form reasonably
" ayment and
( P
payment and performance bond the
acceptable to Owner, issued by a smety listed in the most recent United States Department of Treasury
the

Project.

ent and
e)
P~

listing of approved sureties, guaranteeing the performance of the General Contractor under
that certain guaranteed maximum price contract for the Construction of the Project. Owner may accept,
in its sole and absolute discretion, for any reason and for no reason whatsoever, a
completion guarantee from the General Contractor in substitution for such Payment and Performance Bond.
Owner shall be named as a dual obligee under the Payment and Performance Bond; provided, however,
Owner' s rights under the Payment and Performance Bond shall be subordinate to the Recognized
Mortgagee' s as defined in the Lease)rights under the Payment and Performance Bond and Owner shall
agree in writing with such Recognized Mortgagee that Owner shall only seek to enforce its rights
under the Payment and Performance Bond if the Ground Lease is terminated and such
6 of the Ground Lease for the execution
under Section 11.
Recognized Mortgagee fails to exercise its rights
of

New

in

Tenant' s Documents ( as defined

the Ground

2 Commencement and
Section 2.
Lease).

COIllPletion of Construction of the PrQject. Developer shall, subject to Unavoidable Delays,

days after all Permits
at its expense (a)
(
Commence Construction on or before sixty 60)
Construct"
ion
(
and Approvals necessary for the Commencement of Construction are issued the
Project with
and (b)thereafter continue to prosecute Construction of the
Commencement Date")
Construction,
Commenced
If,
after
Developer has
diligence and continuity to completion.
Developer fails to diligently prosecute Construction of the Project (subject to Unavoidable Delays),
and such failure continues ( subject to Unavoidable Delays) for thirtyconsecutive (30)days after Developer' s
receipt of notice of such failure, the Owner shall,in addition to all of its other remedies under
this Agreement and the Ground Lease, have the right to seek such equitable relief (either mandatory or
injunctive in nature) as may be necessary to cause diligent and continuous prosecution
Construction of the Project (subject to Unavoidable Delays)by Developer, it being understood that

of

Construction of the Project is a material inducement to the

Owner to enter into the

Ground

for harm

Lease and monetary damages shall be inadequate to compensate the Owner

herein,if Developer
resulting from such failure. Notwithstanding anything to the contrary contained

fails to Substantially Complete Construction of

the

Project by

the

Default Date,then the same

shall constitute

an Event of Default under this Agreement and under the Ground Lease and the Owner shall be
entitled to

allof

itsremedieshereunder

and

including, without limitation,the termination of this Agreement and the Ground Lease.
con1rarycontained in this Agreement, the Default Date shall not be
Notwithstanding anything to the
extended by reason of Unavoidable Delay.Section
theretmder,

2.

Pletion of Construction of

3COIr\

the

a)
Substantial Completion of the Project shall be ac omplished in a
diligent manner, and in any event by the Completion Deadline, and final completion of the Construction
of the Project,including but not limited to completion of all punch- list items, shall be
ac omplished in a diligent manner thereafter, in each case in a good and workerlike manner, in
PrQject.

substantial accordance with the Plans

and,except as provided in

and Specifcations, in accordance with all applicable Requirements

at Developer' s sole cost
Article 6,

Upon Substantial Completion of Construction of the Project,

expense. b)
Developer shall furnish the Owner with
and

a certification of the Architect ( certified to the Owner on

i)
the standard AlA certification form) that it has examined the Plans and Specifications
and that,
its professional judgment, after diligent inquiry, Construction of the
the

fol owing:

in
has been Substantial y Completed in accordance with the Plans
as constructed,the Improvements comply with
and Specifications applicable thereto and,
all

Project

copy or copies of
portion thereof, as applicable)
the temporary certificates of occupancy for the Hotel or
(
issued by the City of Miami Beach
ap licable

Requirements; ii)
if Requirements

Building

lien waivers in form

Department; iii)

require the

same, a

and substance reasonably satisfactory

retained by or
to Owner from each contractor,
on behalf of Developer in connection with the Construction of the Project, evidencing
that such Persons have been paid. in full for all work performed or materials
subcontractor,

supplied in connection with the Construction

the

Project;

supplier or materialman

of

set of "
a complete
as bullt" plans and a survey
iv)
which the Construction of the
excluding personalty)for
Improvement(s)
(

showingthe
Project has been completed. The Owner shall have an unrestricted license to use such "
as built" plans and survey for any purpose related to the Project Site without
paying any additional cost or compensation therefor, subject to copyright and similar
rights of the Architect to prohibit use of designs for purposes unrelated to the Project
Site,as such rights exist in law or may appear in the Architect' s contract, and
subject to applicable public records laws.The foregoing requirement with respect to "
at
as built" plans shall be satisfied by Developer furnishing to the Owner,
and Specifications, with all addenda
Developer' s expense, a complete set of Plans
EXECUT1ON.
EX2(
EVA.
JNM\CMB\Hl1.J)
theretoandA:\

change orders in respect thereof,marked to show all changes, additions, deletions

and selections made during the course of the Construction of the Project;
Contractor' s Final Affidavit in form and substance

reasonably
satisfactory to Owner executed by the General Contractor ( i) evidencing that all
contractors, subcontractors, suppliers and materialmen retained by or on behalf of
Developer in connection with the Construction of the Project have been paid in full
for all work performed or materials supplied in connection with the Construction of
the Project; and ( ii) otherwise complying with all of the requirements under the
Florida Construction Lien Law, Chapter
713,Florida Statutes, as amended;
v)

and
in

vi)
evidence that all
accordance

with

the

use and operate the Hotel

Lease, Management Agreement, Plans

FF& E necessary

Ground

to

and Specifications and the Development Budget has been instal ed in the
Hotel.
ARTICLE 3.
PLANS

AND

SPECIFICATIONS

Section 3.
1

and
Approval

Modification

and Specifications. a)
Developer has previously submitted to the Owner,
Plan!;
approved,
Specif cations described on Exhibit
has
Plans
and
Preliminary
and
Owner
the
attached
3.
1(a)
ofPrelimin~

the

and incorporated by reference

herein.b)
If Developer desires to modify
the Preliminary Plans and Specifications (as such may have been previously approved pursuant
to the
shall
terms of this Section 3.
1(
Developer
any
b)),
submit such proposed
modified Preliminary Plans and Specifications to Owner.Such modified Preliminary Plans
and Specifications shall clearly indicate, by "ballooning",highlighting, blacklining or describing in writing
in sufficient detail in a memorandum accompanying such modified Preliminary Plans and
Specifications, aU such proposed modifications
to the Preliminary Plans and Specif cations. Within ten 10)
(
days
of
receipt
of
such
Pr
e
l
i
m
i
n
ar
y
Plans and Specifications,
business
its
proposed modified
the Owner shall notify Developer, in writing, describing, with specificity,the basis for
such disapproval of any material modifications or material inconsistencies of which the Owner disapproves
between the Preliminary Plans and Specifications as modified and the Preliminary Plans and
Specifications previously approved by the Owner,it being agreed however,that the Owner's failure to so
notify Developer of its disapproval during such time period shall be deemed to constitute
however,
the Owner' s conclusive approval of such modifications or inconsistencies; provided,
that
days
fol
l
o
wi
n
g
receipt
ten
(
Owner
notify
within
business
its
Developer
that if
shall
10)
and Specifications are not indicated as required
any of the proposed modifications to the Preliminary Plans
3.
1(
b)
or
that
the complexity of the proposed modifications
by this Section
necessitates an extension of such time period to complete Owner' s
review, such period shall be extended to
hereto

the date

thirty ( after
whichis
30)
days

Owner'

provided, further, however, that Owner shall not be responsible for, and
shall not be deemed to have approved, any such proposed modification that is not indicated as
Notwithstanding anything to the contrary contained
(
3. 1 b).
required by this Section
herein, Owner shall not object to any modifications to the Preliminary Plans and Specifications
which are necessitated by Requirements or as a result of a drafting,coordination, mechanical or
technical error in the Preliminary Plans
proposed

modifications;

Specif cations. c)
If

and

Owner

disapproves

any

material

modifications

to

to Section 3.
in the Preliminary Plans and Specifications pursuant
submi
t
above, then Developer shall, at its election, either ( x)
b),
Owner' s
1(
to Section 3.7 and Section 22.1 as to
arbitration pursuant
disapproval to expedited
the reasonableness of the disapproval,
thei)
( materiality of the inconsistency or modification and/ or ( ii)
submit a revised modification to the Preliminary Plans and Specifications to
or y)
(
meet Owner's objections, which revised modification shall
be
or material inconsistencies

d)Description of
b).
in Section 3.1(
and reviewed as provided
restored portions of the Royal Palm Hotel, and a new
the Hotel.The Hotel will consist of the fol owing: ( i)
tower to be developed to the east of the Royal Palm Hotel,as per the plans
the joint Design Review and Historic Preservation Boards on
and specifications approved by
may be amended
1996,as said plans and specifications
December 3,
and approved, together comprising approximately two hundred fifty- seven ( 257)hotel rooms (hereinafter collectively
ii)
restored portions of the Shorecrest Improvements which
referred to as the "RP Improvements'')and (
has a street address of 1535 Collins Avenue,Miami Beach,Florida and a new tower to be
and specifications
developed to the east of the Shorecrest Improvements, as per the plans
approved by.the joint Design Review and Historic Preservation Boards on December
said plans and specifications may be amended and approved,
3,
1996, as
comprising approximately one hundred sixty- five 165)
( hotel suites (hereinafter collectively
together
referred to as the "Shorecrest Improvements''). The Shorecrest Improvements will be operated in conjunction with
the RP Improvements as the Hotel. The Hotel will be a first class,
submit ed

upscale property with suitable convention, conference and meeting space and appropriate amenities meeting

standards of the Crowne Plaza Hotel chain

the

those standards set forth in the Ground Lease. Section 3.

Prior to Commencement of Construction of
2 Approval and Modification of Plans and Specifications. a)
the Project, Developer shall prepare and submit to the Owner the Plans and Specifications, which
and Specifications shall be used to obtain the required building permits.
and

Plans
If

submitted Plans and Specifications are materially inconsistent with, or contain material modifications
to,the Preliminary Plans and Specifications ( as such may have been previously
terms of Section 3. 1),then such Plans and Specifications
to
approved

pursuant

such

the

hlighting, blacklining or describing in writing in

shall clearly indicate, by ballooning", hig"
sufficient detail in a memorandum accompanying such Plans and Specifications, all such modifications to the
(
days of its receipt of
Plans and Specifications. Within ten 10)business

Preliminary
such Plans

andSpecifications,
Owner

Developer,
shallnotify

writing,
in

material modifications of which the Owner disapproves between the proposed Plans and
Specifications and the Preliminary Plans and Specifications, it being agreed however, that the
Owner' s failure to so notify Developer of its disapproval within such time period shall be deemed

or

approval of such Plans and Specifications; provided, however,

10)
that if Owner shall notify Developer within ten (
business days fol owing its receipt that any
of such inconsistencies or modifications to the Preliminary Plans and Specifications are not
or that the complexity of such changes
2(
Section 3.
indicated as required by this
8)
from the Preliminary Plans and Specif cations necessitates an extension of such time period to complete
days after Owner'
date which is thirty ( 30)
Owner' s review, such period shall be extended to the
however,
provided,
further,
or
modifications;
s receipt of the proposed inconsistencies
that Owner
and shall not be deemed to have approved, any such material
shall not be responsible for,
a),
2(
as
inconsistency or modification that is not indicated
required by this Section 3.
except that when Developer advises Owner in writing, and Owner agrees with Developer in writing,
that the Plans and Specifications, as approved as herein provided above, are complete and sufficient
and suitable to construct,furnish and equip the entireJlotel in accordance with the provisions
of this Agreement, such written agreement shall be deemed to constitute the Owner' s
conclusive approval of all modifications and inconsistencies, whether or not the modifications are
highlighted, in such Plans and Specifications; provided, however, that the foregoing exception relating to Owner'
diminish any of the
(
s conclusive approval does not apply to those changes which, in Owner' s opinion, i)
di
m
i
n
i
s
h,
i
n
di
v
i
d
ual
l
y
materially
or in the aggregate, any
levels of quality of the Hotel, (ii)
on the ability
have a material adverse effect ( a)
of the physical components of the Hotel, or ( iii)
(
)
on the financial feasibility of
of Developer to complete Construction of the Project or b
the Hotel. Notwithstanding anything to the contrary contained herein,Owner shall not object to
any inconsistencies with or modifications to the PreliminaIy. Plans and Specifications which are necessitated by
Requirements or as a result of a drafting, coordination,mechanical or technical
to

constitute the Owner' s conclusive

If Developer desires
and Specifications.b)
to modify previously approved Plans and Specif cations as such may have been modified by approved
Plans and Specifications), Developer shall submit any such modified Plans and Specifications to Owner for
Owner' s approval. Such modified Plans and Specifications shall clearly indicate,
ng", highlighting, blacklining or describing in writing in sufficient detail in a
by ballooni"
to the Plans
memorandum accompanying such modified Plans and Specifications, all such proposed modifications
business days of its receipt of the proposed modifications,
(
and Specifications. Within ten 10)
Owner shall notify Developer in writing,with specificity of any material inconsistencies or
material modifications of which the Owner disapproves between the Plans and Specifications as modified
and the Plans and Specifications previously approved by Owner, it being agreed however, that the Owner'
constitute
s failure to so notify Developer ofits disapproval during such time period shall be deemed to
that
the Owner' s conclusive approval of such Plans and Specifications;provided, however,
that
its
receipt
f
o
l
o
wi
n
g
( business days
any of
if Owner shall notify Developer within ten 10)
the proposed modifications to the Plans and
Specif cations are not indicated as required by this Section
or that the complexity of the proposed modifcations necessitates an extension of such
2(b)
3.
time period to complete Owner' s review,
such period shall be extended to the date which
days after Owner' s receipt of the proposed modifications; provided, further, however,that Owner
is thirty (30)

error

shall not

beresponsible

in the Preliminary Plans

for,
shall
and

not

3.
approved, any such proposed modification that is not indicated as required by this Section
not
Notwithstanding anything to the contrary contained herein, Owner shall
object
b).
2(
Requi
r
e
ment
s
or
as
by
Speci
f
i
c
at
i
o
ns
which
and
to any modifications to the Plans
are necessitated
a result of a drafting,coordination, mechanical or technical error in the Plans
Specif cations. c)
If Owner disapproves any material inconsistencies or
material modification in the Plans and Specifications from the Preliminary Plans and Specif cations pursuant
to Section 3.2(
above, or Owner disapproves any of the material modifications
a)
to or material inconsistencies in the Plans and
Specif cations pursuant to Section 3.2(b)above,
and

to expedited
submit Owner's disapproval
election either: (x)
materiality of
7 and Section 22.1 asto the ( i)
arbitration pursuant to Section 3.
within
the inconsistency or modification and/
(
or ii)
( the reasonableness of the disapproval, y)
and
submit
revised
notice,
di
s
appr
o
val
s
days after receiving the Owner'
thirty 30)
(
Plans Specifications
or a revised modification to the Plans and Specifications to meet Owner' s
modification shall be reviewed.~~ as provided in Section
Specif cations
or revised
objections, which revised Plans and
( as applicable,
2 a)
(or b),
3.
then

Developer

shall,at

or

its

construct the Project in accordance with the modified

z)

and Specifications.Section 3.3

es. Any disapproval

Riiht of

Developer

to

pproved Chan~
with Di~

Proceed

or Section
Section 3.2(
3.
1( b),
a)
3.
be subject to arbitration as provided in Section

pursuant to Section

2(b)
shall
3.
1 below.If the arbitrator
and Section 22.
7

any

Plans

inconsistency or

modification submitted to arbitration

pursuant

to

upholds Owner' s objection

Sections

to

1(
c)or
3.

modification to the Plans and Specifications pursuant to

Section 3.2 above, and such disapproval or conditional approval shall not be submit ed to
arbitration by Developer or shall have been upheld by the arbitrator, then Developer may, if the inconsistency
not
or modification will (i)
improve the physical components or levels of quality of the Hotel, and ( ii)
on the ability of Developer to complete Construction of
have a material adverse effect (y)
the Project,including but not limited to completion on a timely
(
on the financial feasibility of
basis,or z)

3.2(
c)or OWner

shall disapprove any proposed

Hotel,nevertheless Construct

the

the Project

accordance with the Plans and Specifications disapproved or conditionally approved

applicable
by Owner; provided, however, that the inconsistency or modifcation complies with all
contai
ned
contrary
anything
to
Not
w
i
t
h
st
a
ndi
n
g
4 Compliance with Requirements: Construction Standards.a)
the
Requirements. Section 3.
herein,the Plans and Specifications shall comply with all applicable Requirements. It is Developer' s responsibility
of any Plans and
to assure such compliance. The Owner' s approval in accordance with this Article
Specifications shall be deemed to be a determination by the Owner that the Plans and Specifications
so approved are in substantial conformity with the Proposal,but shall
not be, and shall not be construed as being, or relied upon as, a
determination that such Plans and Specif cations comply with
in

other applicable

Requirements,including,

without limitation,

any

Requirements

Construction of the Project shall be carried out pursuant to Plans and

b)
Specifications prepared by licensed architects and engineers, with controlled inspections conducted
by a licensed architect or professional engineer as required by applicable Requirements.
5 Budaet and
3.

Section

Orders. a)Developer has previously submitted to the Owner, and the

Owner has approved, a pre-construction budget and development budget for the Project (
collectively,the Development Budget"),copies of which are attached hereto and incorporated by
Information copies of any material modifications
5(
Exhibit 3.
as
reference herein
a).
to the Development Budget shall be promptly delivered to the Owner. Any change orders which
E)
of the Project above the amount listed for such
increase the hard construction costs (including FF&
costs in the Development Budget will be
Chanae

from the Contingency.b)Except as provided in the last sentence in

in this Agreement, after
notwithstanding anything to the contrary contained
b),
this Section 3.5(
of the Contingency has been exhausted, all proposed change orders which would
fifty percent ( 500A.)
in the Development
increase any line item for hard construction costs including
FF&E)
(
000),the cost of which would
more than Twenty- Five Thousand Dollars ($25,
Budget by
be payable out of the Contingency, shall be subject to Owner' s approval, which approval shall be
object to such proposed' change order within ten 10) (
deemed granted if Owner shall not
business days after Owner' s receipt of Developer' s request therefor; provided,however, such
)
(
to meet ReqUirements; 2
required if the modification is necessary: 1)
approval is not
coordination, mechanical or technical error in the Plans and Specifications;
as a result of a drafting,
as a result of price increases in materials, Building Equipment, Operating Equipment, FF&
or 3)
(
E,
labor and other hard construction costs. In addition,any increase in soft costs shall
to the Development Budget, showing variances, as provided in Section
periodic updates
be reflected in the
However, any increase in any soft costs category in the Development Budget
v)(
7).
a)(
2(
4.
may in the sole discretion of Developer be offset by a decrease in any other soft cost category,
E,
but may not be offset bya change order decreasing any hard cost category or FF&
without the consent of Owner. Any change order in excess of Twenty- Five Thousand Dollars
000) that (i)
diminishes any of the levels of quality of the Hotel, ( ii)material y diminishes, individually
25,
has a material adverse
(
or in the aggregate, any of the physical components of the Hotel,or iii)
on the ability of Developer to complete Construction
effect y)
(

deducted

of

the Project or

on the financial feasibility of the Hotel, shall require Owner' s

z)
approval. Section 3.6 Desian and Decor.Notwithstanding anything to the contrary contained in this Agreement (other
b above),
) the Owner shall not have any approval rights with respect to matters
than Sedion 3.5(

of

interior designanddecorof the Hotel

except

to

Section

7DevelQpment
3.

Di!Wute. Any dispute or disagreement between Owner and Developer arising prior to
Devel"
opment Dispute'') shallbefi.
(
the Hotel Opening Date with respect to the folowing matters a
nal1y resolved in accordance with

the provisions

a)
Any dispute as to whether Developer' s modifications to
22.1:
Section 3.1(
the Preliminary Plans and Specifications or the Plans or Specifications
pursuant to
respectively, are material and/or materially inconsi tent
a)or b),
2(
or 3.
(
b)
ofSeetion

and
Any contention by Developer
therefore subject to Owner's approval;b)
to any modifications to
consent
or
give
that Owner has unreasonably failed to approve
its
the
Preliminary Plans or Specifications pursuant to Section 3.1(b), or the
are

or b);
(0"'
2(
a)
and Specifications pursuant to Section 3.
by Developer that Owner has unreasonably failed to approve or consent to a
change order
Plans

c)
Any

contention

b);
and
2(
to which Owner has approval rights pursuant to Section 3.
obtai
n
consent
Any contention by Owner that Developer has failed to
to
d)

as

change
has

order

as to which

Owner

approval

rights

8 Developer's Fee and

5(b).
Section 3.
3.

pursuant to Section
a) Definitions. i)
Project Management Fee. Developer' s Fee"
ses.
Development"
Fee"means the development fee to be
and the ii)
means,collectively, the Development Fee
paid
E~

percent of the total

Developer in the amomrt oftbree (3)
Project
"
project costs as stated in the Development Budget. ill)
to

Fee"means the project management fee to be paid to the Developer as stated

Management
Developer' s Fee
Payment of DevelQper' s Fee.The
b)
in the Development Budget.
installments accruing as of July 1,
shall be paid to the Developer in thirty-six ( 36) equal monthly
i)
(
1996 with the first payment being made on the later to occur of
the closing of Developer' s construction loan from an Institutional Lender. An
the Commencement Date or ii)
(
example of the calculation
and timing of the payout of the Developer' s
exhibit, is shown on Exhibit 3.
8(
as stated in such
Fee, assuming Withheld Amounts
2
if
milestone
the
foregoing,
attached hereto and incorporated by reference herein.Notwithstanding
b)
as described

onExhibit

3.
8(
d)
is

not reached

be made until that milestone is reached, at which time distributions of the

Developer' s Fee which

Notwithstanding anything to the contrary
of the first payment of the Developer' s Fee shall not exceed the
monthly instal ments of the Developer' s
16)

would have been made but for this sentence will be made.
in this

Agreement, the

aggregate

amount

amount of sixteen (

Completion of the Construction of the PrQject Prior to

June 30.
c)
is
completed
prior
to
June 30,1999,the amount of
Construction Work
Developer'
s
if
any,
that
undi
s
bur
s
ed
Fee,
is
as
the
date
such
the
of
of completion shall be paid
to Developer in one lump sum on
Fee.

1999. If all the

the

date

Partial Withholdini
of such completion. d)

event that, prior to

on the Sources and
Uses Statement ( which

the

Commencement of

Construction,

of the DevelQper' s

the

sources

Fee.In the

of funds as reflected

c)(
i)(
l)
in the Ground Lease) are
is Exhibit 10. I(
less than the uses of funds reflected thereon based upon the projection of the
Contingency
then,in that event, a portion of the Developer' s Fee equal
by Owner' s Consultant (the Deficit"),
to the
Deficit
shall be withheld the ''
Withheld Amounf') and the remainder, ifany,of the Developer'
s Fee
be
paid
pursuant
to
Secti
o
n
3.
b).
The Withheld AmOlmt shall
shall
8(
be withheld equally from the Development Fee and
the Project Management Fee. As
attached hereto and incorporated herein, the amount
indicated on Exhibit 3.8(
d)
Cont
i
n
genc
y
required
to
be
of
available and undisbursed ( the "
Required Contingency'') at various
Contingency times the Required Contingency Percentage as defined
milestones is equal to the initial
that the undisbursed Withheld
in Exhibit 3.8(
To
extent
Amount
the
d).

exceeds the Required Contingency at any milestone ( the Excess"

Withheld Amount''),
the

Excess Withheld Amount will

be released for payment at that milestone date.If,in the reasonable opinion of Owner' s
Consultant, the amount of the Deficit increases (the Deficit
"
Increase'') any time after
Commencement of Construction, Developer shall increase, upon demand by Owner, the amount of Developer' s equity funding
of

the
Construction of
Project

the
Increase. ARTICLE

by

the amount of the Deficit

OWNER
4.

PARTICIPATION

Section 4. 1 Owner' s Ript

to Use Field Personnel. The

Owner reserves the right, at its sole cost and expense, to maintain one on-site
representative ( from Owner' s Consultant, the Owner or another entity designated by the Owner) at the
Project Site to conduct inspections of the Project Site p(rovided, however, that the Owner shall be
site representatives from time to time to the extent reasonably
entitled to maintain additional onnecessary to perform such inspections), and Developer agrees to provide safe access
to the Project Site,including, without limitation, access to inspect the Construction Work,including, without
limitation, the preparation work and work in progress wherever located. No such inspection by the
site representatives shall impose upon the Owner responsibil ty or liability for
Owner' s onany failurebyDeveloper

any
toobserve

Requirements or

Construction Work,

constitute

an

Agreement, and

no

acceptance of any work which does

comply with the

provisions
inspection
assumption by Owner of
s
or
for
the
of
any responsibility
liability
Developer' obligations hereunder, nor any
performance
liability arising from the improper performance thereof. The Owner' s on- site representatives shall
not interfere with any Construction Work being performed at the Project Site and shall comply with
all safety standards and other job- site rules and regulations of Developer. The Owner' s on- site
representative is an inspector only. The on-site representative shall make only such communications
with Developer' s construction manager(s), the General Contractor, its subcontractors, or any other
Person involved in the Construction of the Project,as are reasonably necessary to enable such on-site
representative to conduct its investigations, and in no event shall the on- site representative give
directions to such Persons. Developer shall provide a reasonable work area for Owner' s on- site
representative as is customarily provided at similar construction sites. All expenses incmred by
Owner' s on- site representative shall be paid by Owner.
of this

or

such

shall constitute

not

an

4.
2 Owner' s Ript to Notice. Access

S~ction

Owner has appointed the

Owner' s Consultant as the Owner' s consultant in connection with the Construction of the
Project in accordance with the terms of this Agreement. In connection therewith, Developer
agrees to cooperate fully with the Owner' s Consultant. In furtherance thereof, Developer agrees
that the Owner's Consultant, and its authorized representatives, shall have such rights of notice,
access and review with respect to the Project and the Construction Agre ments as is reasonably
necessary to achieve the foregoing ( including, but not limited to verifying on Owner' s behalf
that the Construction- of the Project is being conducted in accordance with the terms
hereof),
including,without limitation,
and

that the

Developer acknowledges
Review. a)

the opportunity for attendance by

following: i)

the

the

Owner's Consultant

at regularly scheduled Construction Work meetings (which shall be scheduled not less frequently than
twice each month) and at any special meetings which Developer deems necessary in its
reasonable

discretion

as to change orders, delays and other material issues concerning

the

the furnishing to
Project; ii)

bid

packages; iii)
the inspection by

the

Owner's Consultant of an information

copy of all

Construction Work in accordance

the

Owner's Consultant of all

with the provisions

1);
iv)
the opportunity for atendance by
4.
s Consultant at the interior design presentations given to Developer ( or
of

Section

an

the delivery by
equivalent presentation);and v)

Consultant

of two (

A:\
JNM\CMB\
2)
of:
copies

Hl'

LDEV

Developer

to the Owner'

the Owner'

1)all agreements with contractors,

suppliers, vendors and other

of

the Project

in

Persons

supplying

materials

excess of Two Hundred Fifty Thousand

shall be aggregated with respect

subcontractors,

or services in connection with the Construction

to each Person

Dollars ($
250,000),which

supplying

the Plans and Specifications (

materials or services; 2)

highlighting, or
thereto,with such modif cations being clearly indicated, by ballooning","
blacklining on the Plans and Specifications or describing in writing in sufficient detail in
a memorandum accompanying such
modified Plans and Specifications), working and
specifications,
renderi
n
gs,
layouts and change orders (
other drawings,
blueprints,
and modifications

collectively, the Detailed

"

required by

3)all
Plans'');

insurance certificates

Article 7 of this Agreement ( including those of

Developer and all contractors

all contractors' and subcontractors' requistions

for

payment and

the

and subcontractors); 4)

General Contractor' s

or construction manager' s schedule of

all
values;5)

drawdowns

of

and loan

equity

proceeds underthe

Loan Documents;

a monthly
6)

construction

cost-to-date

report reasonably

all periodic (but not less than monthly) updates

the Development
shall show all variances; and 8)
all interior

acceptable to

Owner; 7)

to

Budget,which updates

control books.To the extent the exercise of the

Owner's rights hereunder requires the opportunity for review of any documents or
the opportunity for participation in any meetings, Developer agrees, without request therefor. by the Owner, to promptly
provide copies of such documents or notice of such meetings to the Owner and the Owner's
Consultant, as applicable, after receipt of the same by Developer and reasonably in advance of
any meetings to allow for appropriate travel arrangements to the extent practical under the circumstances.
If Owner' s Consultant is not in atendance, the meeting will proceed and Developer will
promptly provide Owner's Consultant with minutes of the meeting. The Owner's Consultant shall
not interfere with any Construction Work being performed at the Project Site and shall comply with all
design

site rules and regulations of Developer. b)

standards and other jobPrior to the Commencement of Construction, Developer shall provide to the Owner a construction schedule for
Project, which schedule shall be prepared using the critical path method (" CPM";such
each phase of the

safety

schedule, as it shall

the Construction

Agreements,shall

be referred

be amended from time

as
to

to time in

accordance with

including

diagram, for use in scheduling

minimum, show:

CPM network

CPM Schedule shall, at

controlling

the Construction. The

and late start and stop times for each

i)

the

ii)

all " critical

iii)

the

iv)

manpower levels;

v)

late order dates for all

vi)

critical

early

and

major

construction

activity;
path" activities and their duration;

sequencing of

all procurement, approval,

delivery

and work

activities;

long

lead time materials and

equipment; and

Developer and Owner decision dates.

Developer shall promptly provide to the Owner' s Consultant information copies of

1)be revised by Developer whenever there is

the CPM Schedule. The CPM Schedule shall (

a material variance in the progress of the Construction from the then current CPM Schedule
and otherwise at appropriate intervals, but in no event less frequently than monthly
and 2)
(

provide for expeditious and practicable execution of

the Construction. A copy of the

CPM network diagram highlighting

the

completed

and partially completed activities and manpower schedule shall be maintained by Developer on a
current basis, at the Project Site,
to accurately reflect the actual progress of the Construction and shall

that is readily accessible to the Owner' s

Consultant. One (1)
copy of the updated CPM Schedule, CPM network diagram and manpower schedule shall be
delivered to the Owner' s Consultant promptly after the same have been revised as required
herein.The CPM network diagram shall reflect the actual progress of Construction to date.
The manpower schedule shall reflect actual manpower levels each week compared to manpower levels set forth
be displayed at all times in a manner

in

the Owner' s Consultant informed on a periodic (

basis,unless circumstances dictate the need to do so more
but not less than twice per month)
frequently, as to actual progress made.Developer shall provide the Owner' s Consultant with
reasonable access to the reports, logs and other systems in which Developer records or notes the daily
progress of the Construction Work.Developer shall inform the Owner' s Consultant of any deviation
from the CPM Schedule which, in Developer' s good faith determination, is likely to cause a material

the CPM Schedule. Developer shall

keep

in the Substantial Completion of the Project ( as shown on

business days after such deviation
Schedule),within three (3)
delay

becomes apparent

toDeveloper.

A:\JNM\CMB\

HTLDEVA.

the

current CPM

ARTICLE
5.
MISCELLANEOUS CONSTRUCTION
Section 5.1

PROVISIONS

Title to

the Existina Hotels. Contemporaneously with the execution hereof, the Owner has conveyed
to Developer title to the improvements presently known as the Royal Palm Hotel and
the "Existing Hotels"). The Owner has not made and does
the Shorecrest Hotel collectively,
not make any representations as to the physical or structural condition, value,adequacy or fitness for
use of any equipment or systems in the Existing Hotels,or the presence on or about the Existing
Hotels of any substance or material which is or may hereafter be subject to any
Environmental Laws,including,without limitation, Hazardous Materials, or any other matter or thing affecting or
related to the Existing Hotels, and Developer hereby expressly acknowledges that no
such representations have been ma4~,
and Developer further acknowledges that it has inspected the Existing
Hotels and agrees to take the same "as is",
in such condition as the same may be in on the date of delivery
of the deed thereto. The foregoing is subject to
3(
the provisions ofSeetion 35.
b)

of the Ground Lease.Section

2 Names of
5.
days

Contractors. Materialmen etc.

after the end of each month, with

(
Developer shall furnish the Owner, within ten 10)
a list of each contractor, subcontractor, vendor

and supplier who is performing any labor or supplying any

Five Hundred Thousand Dollars 500,
($ 000),
except for FF&
E items in

materials in excess of

which event the

aforesaid threshold amount shall be Two Hundred Fifty Thousand Dollars 250,000),in connection with

Construction of the Project. The list shall

state the name and address of each such

contractor, subcontractor, vendor and supplier and in what capacity each such Person is performing work
at the Project Site.All Persons employed by Developer with respect to Construction of
the Project shall be paid,without subsequent deduction or rebate unless expressly authorized by Requirements, not
less than the relevant prevailing wage as prescribed by the City
of Miami
Prevailing Wage

Beach

Ordinance,

27,as amended. Section

Beach City Code, Section 3IAReQJIired Clauses. All Construction Agreements which provide for
3 Construction A~
ents. a)
5.
of
labor
on
performance
the
the Project Site shall include the following provisions (or
language substantially similar thereto which is approved in advance by the
Owner); provided, however, that any Construction Agreement having aggregate payments of Five Hundred Thousand Dol ars 500,
Miami

less shall not be required to include the provisions set

below: i)
an agreement by the Contractor to provide, prior to the commencement
forth in paragraph (i)
000)

of
insurance

shall procure

portion of the work,

and maintain during the performance thereof, the

its

set

or

forth on

anappropriate

clause

Exhibit

3(a)
5.
attached hereto and incorporated by reference herein.Such Contractor

or
in,

the insurance company waives subrogation or consents to a waiver of right of recovery consistent
with the release, discharge, exoneration and covenants not to sue contained herein. Original
Certificates of Insurance, in quadruplicate ( all of which shall be original signed counterparts) and
the Miami Beach Redevelopment Agency ( and any successor Owner) and the City, as

including

additional insureds ( the " Certificate of Insurance"), shall be furnished to Developer by Contractor
prior to commencement of work,denoting all insurance required of Contractor pursuant to the terms
of the Contract. The Contractor shall secure an original Certificate of Insurance from each of its
sub-contractors and/or suppliers with limits of liability equal to those carried by the Contractor;

hereby waives all rights of recovery, claims, actions or

causes of action against the Miami Beach Redevelopment Agency ( and any successor Owner), the
City of Miami Beach,Florida and their respective elected and appointed officials (including, without
limitation,the Owner' s Chairman and Members and the City' s Mayor and City Commissioners),
directors, officials, officers, shareholders, members, employees, successors, assigns, agents,
ii) "

Contractor

contractQrs, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals,

invitees and affiliates, for any loss or damage to property of Contractor which may occur at any time
in connection with the

Project.";

permitted by law, Contractor shall and does

hereby indemnify and hold harmless the Miami Beach Redevelopment Agency ( and any successor
Owner), the City of Miami Beach, Florida and their respective elected and appointed officials
including the Owner' s Chairman and Members and the City' s Mayor and City Commissioners),
directors, officials, officers, shareholders, members, employees, successors, assigns, agents,
contractors,. subcontractors, experts, licensees, lessees, mortgagees, trustees, partners, principals,
invitees and affiliates, from and against any and all liability ,claims, demands, damages, losses, fines,
penalties, expenses and costs of every kind and nature, including, without limitation, costs of suit
and attorneys' fees and disbursements ( collectively, " Expenses"), resulting from or in any manner
any act,omission, fault or neglect
1)
arising out of, in connection with or on account of: (
of Contractor, or anyone employed by it in connection with the work or any phase thereof, or any
of its agents, contractors, subcontractors, employees, invitees or licensees in connection with the
liable, 2)
( claims of injury (
work, or anyone for whose acts any of them may be
iii) "

To the fullest extent

including physical,emotional, economic or otherwise) to or disease, sickness or death of persons or damage

to property including, without limitation, loss of use resulting therefrom) occurring or resulting
directly or indirectly from the work or any portion thereof or the activities of Contractor or
anyone employed by it in connection with the work, or any portion thereof, or any of its respective

agents,contractors, subcontractors, employees, invitees or licensees in connection with the work,or anyone
mechanics' or materialmen' s or other liens or
(
)
liable, or 3
for whose acts any of them may be
orarising out of the work or
filed
claims (and all costs or expenses associated therewith) asserted,
any phase thereof other than liens or claims arising out of Developer' s failure to make the

required payments properly due Contractor. In no event shall Contractor be able to seek or be entitled
for
to consequential damages including, without limitation, loss of profits or loss of business opportunity)
by:
any
way
claims arising under this contract.This indemnification obligation shall not be limited in
to Contractor
payable
or
benefits
of
damages,
amount
any limitation on
x)
compensation
type

the

under worker's

or

A:\
CMB\
JNM\

HTLDEVA.

compensation acts, disability benefit acts or other employee benefit acts or other insurance provided
for by this contract; or (y) the fact that the Expenses were caused in part by a party indemnified
hereunder. The Contractor further agrees that this indemnification shall be made a part of all
contracts and purchase orders with sub-contractors or material suppliers. The indemnification

agreement included in this

contract is to be assumed

iv) (

by all

sub- contractors.";

1)
the right

of Developer to assign to the Owner, subject

and subordinate to the rights of Lender, the contract and Developer' s rights thereunder, at the Owner'
and 2)
(
that without the necessity of
s request,without the consent of the Contractor,
such assignment and without thereby assuming any of the obligations of Developer under the contract
occurring prior to suchassignment and/
or purchase order, except for Developer' s payment obligations,
the Owner shall have the right to enforce the full and prompt performance by the Contractor
of such Contractor' s obligations under
contract; v)
Contractor

" to comply with all laws

agrees
and requirements applicable to Contractor and the Project,including,without limitation, the City of
Section 31AMiami Beach Prevailing Wage Ordinance, Miami Beach City Code,
the

27,

Upon an
"
as amended.";vi)
Event of Default by Developer resulting in
a termination of that certain Agreement of Lease between Developer and Owner,
,
pursuant to which Developer (as tenant) has agreed to lease the Land on which the
dated as of 1998,
is
to
be
const
ructed, Contractor will,at the option of the Miami Beach
Hotel
Redevelopment Agency, subject and subordinate to the rights of Lender,be terminated or Contractor will honor this
agreement as if this agreement had been originally entered into with the
Miami
intended to be

''
contained in this contract is in any way
Beach Redevelopment Agency.";vii)Nothing
of the prohibition on Contractor' s ability to file liens against property
Beach Redevelopment Agency, or of any other constitutional, statutory, common

a
of the Miami
law or other protections afforded to
waiver

public

"
bodies or governments.";viii)Upon
an Event of Default by Developer resulting

in a termination of that certain Agreement of Lease between

Owner,dated as

to

Developer

and

Developer ( as tenant) has agreed to lease the Land on which

of ,
which
the Hotel is to be constructed, all covenants, representations, guarantees and
warranties of Contractor hereunder shall be,subject and subordinate to the rights of Lender, deemed to be made for
the benefit of the Miami Beach Redev~lopment Agency and
the Miami Beach Redevelopment
(
Agency shall be deemed to be a third-party beneficiary hereof) and shall be,subject and subordinate
to the rights of Lender,enforceable by
1998, pursuant

the
Miami

Beach

Redevelopment

Agency expressly

Miami Beach Redevelopment Agency.";ix)

Unless
"
and until the

assumes the obligations

of the Developer

under this contract ( and then

to the extent the same arise from and after such assumption),the Miami Beach

shall not

bea

partyA:\
JNM\ CMB\

Redevelopment

only

Agency

to this contract and will in no way be

whatsoever

arising

or

responsible

to any

party for any claims of any

nature

which may arise in connection with such contract. ";and

Contractor

agrees that notwithstanding that Contractor

performed work at the Project Site or any part thereof, the Miami Beach Redevelopment Agency
shall not be liable in any manner for payment or otherwise to Contractor in connection with the work
x) "

hereby

performed at the Project Site, except to the extent the Miami Beach Redevelopment Agency
expressly assumes the obligations of Developer hereunder ( and then only to the extent such
obligations arise from and after such assumption)."
5.
4 Demolition

Section

and as provided in the Plans and Specifications in

of
or as part of a Casualty Restoration or Condemnation Restoration
therwise permitted under this Agreement or the Ground Lease,
or as may be 9.
Developer shall not demolish any portion of the Project Site.
Any demolition permit ed hereunder
shall be performed in accordance with
PrQject

Site.

Except as

of the

connection with Construction

necessary

the Project

all
applicable Requirements. ARTICLE 6.
FINANCING OF PROJECf
AND

CONSTRUCTION

DISBURSEMENT

PROCEDURES

6.
1

Section

and improvements,

Owner'

s Contributions. a)Owner

as

the

Date, commonly known

existing
Commencement
in Exhibit A attached
of

Hotel and more fully described

has acquired the land

the Royal Palm

as

hereto and incorporated by reference herein, at a

cost to Owner of Five

Three Hundred

Mil ion

Ten

Thousand Dollars ($5,310,000).

b) Owner has

existing as of the Commencement Date, commonly known

land
as the Shorecrest Hotel and more fully described in Exhibit A attached hereto and incorporated by reference
herein, at a cost to
acquired the

Owner

c)
The RP

and

Million Six Hundred Ninety Thousand Dollars 4,

($ 690,000).
and
I
m
pr
o
v
e
ment
s
land
land
the
are
being
Improvements
Shorecrest

leased

of Four

to Developer collectively as the

Except as provided

in Section

improvements,

6.
3, Owner's

contribution
total

Land

pursuant

to the Ground Lease. d)

2 Developer'
6.

Section

s Contributions. Developer has provided the Funded Equity. Developer shall also provide all of
the funds necessary to complete Construction of
the
3 a)
&=.
Section 6.
City Pennit Fees. Agency agrees hereby
to assume payment responsibil ty for any and all Permits,now or hereafter, required to be obtained from the
City for the construction of the Hotel, which include, without limitation,
building permit applications, inspection, certification, impact and connection fees that the City may levy by or
through its Public Works Department (including, without limitation, water and sewer fees)and those
fees listed on Exhibit 6.
attached hereto and incorporated by reference herein and in
3(a)
City
of
Miami
Beach
Building Department
Fee Schedule,as
the
amended through September 16,
1992 by Ordinance Number 92- 2796,or the mQSt. current edition adopted
by the City, which fee schedule is hereby incorporated by reference
and made a
"
part of this Agreement (collectively, the Fees'').
Agency shall remain responsible for payment of the
Fees notwithstanding any and all modifications or changes in price structure as imposed by the
City or any other Governmental Authority authorized to impose such Fees. Agency acknowledges that the Developer
or an Affiliate has paid all applicable fees thus far in the interest of expediting the City
of Miami Beach Design Review Board and City of Miami Beach
Historic Preservation Board applications, and Agency agrees to reimburse Developer, promptly following the date hereof,for the
Fees or any portion thereof paid by
Project.

or an Affiliate or for which Developer otherwise qualifies.b)Non- City

Developer
Pennit Fees.Agency will cooperate with Developer in an effort to persuade Metropolitan Dade County to waive
its fees relating to the Project.To the extent that Metropolitan Dade County does not
Miami Dade
waive the impact,connection and service fees now or hereafter imposed by
and
Sewer
Authori
t
y
Ordi
n
ance
No.
88pursuant to
Water
112,
shall
Section I,
Subchapter 7,
dated December 6,
1988, as updated (collectively, the Connection
Fees"),
Agency
"
pay the Connection Fees when due on behalf of Developer. Developer agrees
to reimburse the
Agency for
the Connection Fees,together with interest thereon at eight percent (8%)
per annum in three hundred ( 300) equal monthly instalments of principal and interest commencing on the Hotel
Opening Date;provided, however, in the event of a Sale of the Hotel requiring payment of

the Purchase

Price

in full to

Owner,

Developer

shall

pay

entire outstanding balance plus all accrued interest due on the Connection Fees. Section 6.
ted Processini. The City shall make reasonable efforts to provide for expedited handling of all
4 E~
the

review board

hearingsand/

or permit

requests

ARTICLE
7.

INSURANCE Developer shall, in accordance with the Ground Lease, carry or cause to be carried
Section 7.10 of the Ground Lease,including the
insurance required under

the

provisions

relevant

of Sections 7.
2,

7.
3,
6 and
7.

7.

14

of the Ground Lease. ARTICLE 8.DAMAGE,DESTRUCTION AND RESTORATION Section 8.

1 Casual\}'.lethe Project Site is
destroyed
whole
in
by
or
in
fire
damaged
or part
or other casualty, the provisions of the
Ground Lease applicable to damage or destruction by fire or other casualty to the
Premises"described under the Ground Lease
govern the rights

shall

Developer, Owner and any Recognized

and

obligations

of

Effect of Casualty on
this AKJeeIDenl Except as provided in Seetion 8.
1 or the Ground Lease,this Agreement shall not terminate, be
forfeited or be affected in any manner, by reason of any damage to,or total or
Mortgagee

hereunder. Section 8.
2

partial

destruction
of,
or

untenantability

or any part thereof resulting from such damage or destruction. ARTICLE 9.

CONDEMNATION Section 9.1
Project
for
public or quasiportion
of
the
is
taken
any
or any
Site
public pmpose by any lawful power or authority by the exercise of
the right of condemnation or eminent domain or by agreement among Owner,Developer, any Recognized Mortgagee
and those authorized to exercise such right, the provisions of the Ground Lease applicable to
such taking of the "
of the

Project

Takini. If

Premises" described

Site

all

underthe

GroundLease

govern
shall

9.
2 Effect

Section

Aa;reement. Except as provided

Agreement shall

not

terminate, be forfeited or

of

Takini

the Ground Lease, this

affected in any manner, by reason of any taking of the Project

in

be

onthis

1 or
Section 9.

Site
or
any part thereof.ARTICLE
10.

RIGHTS OF RECOGNIZED

MORTGAGE Section 10.1

Notice

and

Ownershall give to
Cure Developer' s Defaults.a)
the Recognized Mortgagee and/or Affiliate Mortgagee a copy of each notice of Default at the same time as it gives
notice of such Default to Developer, and no such notice of Default shall be deemed effective
with respect to any Recognized Mortgagee or Affiliate Mortgagee unless and until a copy thereof shall have been
so received by or refused by such Recognized Mortgagee or Affiliate Mortgagee, as
be sent as set forth
applicable.All such notices to a Recognized Mortgagee or Affiliate Mortgagee shall
a)
in Section 11.4(
of the Ground Lease.Owner shall also give the
in the event Developer fails to cure a
or Affiliate Mortgagee notice Notice
Recognized Mortgagee
(" of Failure to Cure")
Default within the period, if any,provided in this Agreement for such cure, promptly fol owing
Ri~

t to

the
of such period Le.,
( an Event of Default).b) The Recognized Mortgagee
Cure,in the case of
of Failure to
of
Notice
shall have a period of sixty ( 60)days after receipt
the
Default refer ed to in the Notice of Failure to Cure
cure the Event of
(
any Event of Default, to 1)

expiration

time
additional
to be cured, subject to the same
b).
Nothing
the provisions of Section 19.1(contained
herein shall be construed as imposing

or 2)
(
cause it

periods provided to Developer pursuant to

obligation upon any Mortgagee to so perform or comply on behalf

on
Developer. c)Owner shall accept performance by a Mortgagee of any covenant, condition or agreement
any

of

Developer' s part to
performed hereunder with the sameforce and effect as though performed
by Developer. d)
Notwithstanding any other provision of this Agreement,no payment made to Owner by
any Mortgagee shall constitute the Mortgagee' s
be

under the
that such payment was,in fact, due
if a
Notwithstanding the foregoing proVlSIOns of this Section 10.1,
terms of this Agreement. e)
( any reason)to cure any Event of Default by Developer within thirty
Recognized Mortgagee fails for
such Event of Default,then
30)
days following receipt of the Notice of Failure to Cure regarding
perform the obligation of Developer the breach
Owner may,but shall be under no obligation to,
agre ment

of whichgaveriseto

suchEvent

of

obligations of Developer under any Construction Agreement), without waiving or releasing

Developer from its obligations with respect to such Event of Default. Developer hereby grants
Owner access to the Project Site in order to perform any such obligation. Any amount paid by
10. I( e),
Owner in performing Developer's obligations as provided in this Semon
including,
without limitation, all costs and expenses incurred by Owner in connection therewith, shall be
reimbursed to Owner within
days folowing Owner's demand therefor, together with a late
thirty (30)
charge on amounts actually paid by Owner, calculated at the Late Charge Rate from the date of notice
of any such payment by Owner to the date on which payment of such amounts is received
the

Owner. f)
If there is

than one Recognized Mortgagee, only

that
all other Recognized Mortgagees, whose Recognized
Mortgage is most senior in lien shall be recognized as having rights under
this Article 10,
unless such first priority Recognized Mortgagee has designated in writing to Owner a
Recognized Mortgagee whose Mortgage is junior in lien to

by

more

Recognized Mortgagee, to the exclusion of

exercise
such right.

ARTICLE

NO SUBORDINATION Owner' s

11.

s interest in the

Ground

not be

renewed,

shall

Title

as

Lease

and

Interest

this

Agreement, as

in

the

Premises,including, without limitation, Owner'

the same may be modified, amended or

to a)
( any

subordinate
Mortgage now or hereafter existing, (b)
any
other liens or encum~
ces hereafter affecting Developer' s Interest in the Premises and
Developer' s interest in this Agreement or c)
(
any sublease or any mortgages, liens, or encumbrances
now or hereafter placed on any subtenant' s interest
in the Project Site. Developer' s Interest in
Premises
and
Agr
e
ement
all
rights of Developer hereunder are and shall be subject to the
the
this and
Matters

subject

or

set forth on Exhibit

2.
1 to the
Lease.ARTICLE 12.

Ground
MAINTENANCE

AND REPAIR

Section

12.

Maintenance
1 Maintenance ofPrQject Site.a)

and Rqmir. i)
(

and keep and maintain, the Project Site in good and safe
Developer shall take good care of,
order and

condition, and shall make all repairs reasonably necessary to keep the

Developer shall
Site in good and safe order and condition. ii)
not commit, and shall use all reasonable efforts to prevent waste, daroage or injury to the Project
Project ( but subject,
Site,except with respect to the Construction of the

Project

however, to theprovisions
of

Section 12.

a)(
1(

Cleanini ofPrQject Site. Developer shall keep clean and free from rubbish
b)
all areas of the Project Site.
Developer shall promptly rectify any damage or interference
caused by Developer to any improvements, equipment,structures or vegetation outside of the Project
Site which is owned or controlled by Owner or the City. The City or the Owner shall promptly
rectify any damage or interference caused by the City or the Owner to the Project Site.
c)

Other Areas.

12. 2Waste

Section

pOsal. Developer shall dispose of waste from all areas of the Project Site
Di$
accordance with Requirements and in a prompt, sanitary and aesthetically reasonably

in

inoffensive

manner.
ARTICLE

13.
REQUIREMENTS

Section

tion to COIllPly.In connection with

a)Obli~
with the maintenance,"management, use, construction and operation of the

13.1

Requirements.

and
any Construction Work,
s
Site
and
Developer'
Project

performance of its obligations hereunder, Developer shall

comply promptly with all Requirements, without regard to the nature of the work required to be done,
whether extraordinary or ordinary,and whether requiring the removal of any encroachment ( but Developer may
seek to obtain an easement in order to cure an encroachment, if permitted by Requirements),
or affecting the maintenance, use or occupancy of the Project Site, or involving or requiring any structural
changes or additions in or to the Project Site and regardless of whether such changes or additions are
required by reason of any particular use to which the Project Site,or any part thereof,may be put
No consent to,approval of or acquiescence in any plans or actions of Developer by Owner, in
its proprietary capacity as Owner, or Owner~s designee shall be relied upon or construed as being a
in the case of
determination that such are in compliance with the Requirements, or,
sufficient,prudent
are
or
construction plans, structurally

in

compliance

with
Requiremnts.

the

Definition. Requirements"
b)

any and all laws,

means: i)

constitutions, roles, regulations, orders,ordinances, charters, statutes,codes, executive orders and requirements
all Governmental Authorities havingjurisdiction over a Person and/ or the Project Site or any street,

of

avenue or sidewalk comprising a part of, or lying in front of,the Project Site or any vault in, or
under the Project Site in(cluding, without limitation,any of the foregoing relating to handicapped access
road,

HfLDEV
orparking,theBuildingCodeA:\
JNM\
CMB\

City and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of
any applicable Fire Rating Bureau or other body exercising similar functions);

of the

the temporary and/or permanent certificate or certificates of occupancy

ii)
issued for the

Project Site as then in force;

ill)

Ordinance, Miami Beach

the

requirements of

City Code, Section

the

City

of Miami Beach

27, as

31A-

Prevailing Wage

amended;

any and all provisions and requirements of any

iv)
policy required to be carried by Developer under this
and

or other

insurance

property,casualty

Agreement.
ARTICLE 14.DISCHARGE
LIENS Section 14.

OF

Developer shall not create,cause to be created,or suffer

Creation of Liens. a)
any lien, encumbrance or charge upon this Agreement, the Project Site .
or permit to exist ( 1)
or any part thereof or appurtenance thereto,which is not removed within the time
2)
any lien, encumbrance or charge upon any
assets
period required pursuant to Section 14.2,
any other matter or thing whereby Owner's Interest
Owner,or (3)
of,
or funds appropriated to,
t.
be materially impaired.
in the Premises or any part thereof or appurtenance thereto mi~
Notwithstanding the above, Developer shall have the right to execute Mortgages and
other loan docmnents, subleases and other instruments ( including, without limitation, equipment leases)as provided by,
and in accordance with,the provisions of the Ground
1

b)
Owner shall not create, cause to be
PF &
E.
any lien, encumbrance upon this Agreement,
)
(
created, or suffer or permit to exist i
the Ground Lease or the income therefrom ( except as expressly provided in the Ground Lease),
removed within the
the Project Site, or any part thereof or appurtenance thereto,which is not

including, without limitation, any

Lease,

liens on

(
any lien, encumbrance or charge upon any
required pursuant to Section 14. 2,ii)
any
( ll)
assets of,or funds appropriated to, Developer, or i
other matter or thing whereby Developer'
s Interest in the

time

period

any part thereof

Premises

If
2 Dischatie of Liens.a)
laborer's,vendor's,materialman' s or similar statutory lien including tax
any mechanic' s,
this Agreement)
liens, provided the underlying tax is an obligation of Developer by the Requirements or by a provision of
against the Project Site or any part thereof, or if any public improvement lien
appurtenant thereto might

or

is filed
created,or caused or
assets of,

suffered

Developer
orfunds
appropri
atedto,

to

be

materially

impaired.

Section

14.

be created by Developer shall be filed

Owner,
or

against any

vendor'
laborer' s,
30)days after Developer receives notice of the filing of such mechanic' s,
materialman' s or similar statutory lien or public improvement lien,cause it to be discharged
s,
of record by payment,deposit, bond,order of a court of competent jurisdiction or otherwise.
However, Developer shall not be required to discharge any such lien if Developer shall have ( i)
furnished Owner with, at Developer' s option, a cash deposit, bond,letter of credit from an Institutional
Lender in form reasonably satisfactory to Owner) or other security (such as a personal guaranty or
pay the lien
title company indemnity)reasonably satisfactory to Owner, in an amount sufficient to
such lien and
discharge
brought an appropriate proceeding to
with interest and penalties; and ( ii)
despite Developer' s
is prosecuting such proceeding with diligence and continuity;except that if,
efforts to seek discharge of the lien,Owner reasonably believes that a court judgment or order
foreclosing such lien is about to be entered or granted and so notifies Developer,Developer shall,within
business days prior
than three 3
(
)
ten 1(0)days of notice to such effect from Owner (but not later
order of foreclosure), cause such lien to be discharged
to the entry or granting of such judgment or
accordance with Section 18.2
of record or Owner may thereafter discharge the lien in
and look to the security furnisheq-.by Developer for reimbursement of its cost in so
in the case
contrary
contained in this Section 14. 2(
a),
doing.Notwithstanding anything to the
of a public improvement lien which provides for installment payments as a means of satisfying such lien,
Developer shall be required only to pay,on
anything to the
timely basis,all instal ments when due.b)Notwithstanding
vendor'
s,
laborer'
if any mechanic' s, s,
contrary contained in Section 14.2( a),
materiilman'
s or similar statutory lien (including tax liens,provided the underlying tax is an obligation of Owner
by Requirements or by a provision of this Agreement) is filed against the Project Site or any part thereof or
Developer' s Interest in the Premises or Owner' s Interest in the Premises as a result
of any action of Owner, its
officers, employees, representatives or agents, Owner shall, within thirty (30)
laborer' s,vendor' s,materialman' s
days after Owner receives notice of the filing of such mechanic' s,
or similar statutory lien,cause it to be discharged of record by payment, deposit, bond,
order of a court of competent jurisdiction or otherwise. However, Owner shall not be required to discharge
furnished Developer with,at Owner' s option,a cash deposit,
any such lien if Owner shall have (i)
bond,letter of credit from an Institutional Lender (in form reasonably satisfactory to Developer) or
as a personal guaranty or title company indemnity) reasonably satisfactory to Developer,
(
other security such
in an amount suf icient to pay the lien with interest and penalties and (ii)brought
an appropriate proceeding to discharge such lien and is prosecuting such proce ding with diligence and
Developer
despite Owner's efforts to seek discharge of the lien,
continuity; except that if,
or granted
reasonably believes that a court judgment or order foreclosing such lien is about to be entered
effect
from
notice
of
days
( 0)
Developer (but
and so notifies Owner, Owner shall,within ten 1
to such
( business days prior to the entry or granting of such judgment or
not later than three 3)
record or Developer may thereafter
order of foreclosure),cause such lien to be discharged of
discharge the lien in accordance with Section 18.2 and look

to thesecurity

furnished byOwner

reimbursement
for

14.3 No Authority to Contract in Name

Section

of

Owner.Nothing contained in this Article shall

consent or request of

deemed or construed to
implication or otherwise, to

be

express or implied,by
any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing
or repair of,
of any materials for any specific improvement of, alteration to,
the Project Site or
any part thereof. Notice is hereby given,and Developer shall cause all Construction Agreements
to provide, that to the extent enforceable under Florida law,Owner shall not be liable for any
work performed or to be performed at the Project Site or any part thereof for Developer or for any subtenant
or for any materials furnished or to be furnished to the Project Site or any part thereof for any
of the foregoing, and no mechanic' s, laborer' s, vendor' s, materialman' s or other similar statutory
constitute

the

lien for such work or materials shall

part

thereof or any assets

waivers of lien

from

of

Owner,

attach

to or

affect

Owner' s Interest in

the

Premises or any

Owner.The foregoing shall not require Developer to request advance

contractors
or

subcontractors. ARTICLE 15.NO LIABnJTY FOR INJURY

OR DAMAGE,ETC.The

provisions of Article 19 of the

Ground Lease shall be applicable

19 were

to this Agreement as if the references to the " Premises" in such Article

references
to
the "

Project

ARTICLE 16.
INDEMNIFICATION Section

Site".

16.1 Indemnification Generally. The provisions

Ground Lease shall be applicable to this Agreement as

in

such

of Article 20 of the
if the references to the Premises"
"

Article

"
Section 16.2 Governs Aareement. The provisions
were references to the Project
Site".
of this Article shall govern every other provision of this Agreement. The absence of explicit reference
to this Article in any particular provision of this Agreement shall not
20

be
to

construed

diminish the application

provisions ofthisArticleshallsurvive the

of this Article to

expiration

such provision. Section 16.3 Survival. The

ARTICLE
CERTIFICATES BY OWNER AND
17.

DEVELOPER Upon request for reasonable purposes, either party shall provide a written statement to
Article 27
the requesting party certifying as to the relevant information required pursuant to
of the Ground Lease with respect to this Agreement and the date to which amounts payable
hereunder by either party have
been
RIGHT TO PERFORM THE OTHER
paid.ARTICLE 18.

S COVENANTS Section 18.1

PARTY'
Perform

Other

Party'

s Obli ations. a)
If

Riaht

to

Event of Default shall occur, Owner may,

obligation to,
perform the obligation of Developer the breach of which
an

but shall be under no

gave rise to such Default,without waiving or releasing Developer from any of its
obligations contained herein,provided that Owner shall exercise such right only in the event of a bona
fide
emergency or after five 5)
business days notice,and Developer hereby grants Owner access to the Project
(
Site in

to perform any such obligation. b

.
)
If a default by Owner under this
order
Agreement shall occur and be continuing beyond any applicable grace period,Developer may,but shall be
other than those which
under no obligation to,perform the obligations of Owner (
gover
n
ment
a
l
as
opposed
obl
i
g
ati
o
ns)
breach
to
the
which
of
are
proprietary
gave rise to such default,
without waiving or releasing Owner from any of its obligations contained herein, provided that Developer shall
exercise such right only in the event of a
bona fide emergency or after five (5)
business days
notice

Owner or the

to

City,
asapplicable.Section 18.2 Dischqe of Liens. a)
If Developer fails to cause
vendor' s,
mechanic' s,
laborer' s,
s
materialman'
or similar statutory lien ( including tax
liens,providing the underlying tax is an obligationof Developer by law or by a provision of this

any

provisions of Article 14,Owner may,but

shall not be obligated to,
discharge such lien of record either by paying the amount claimed to be due
or by procuring the

Agreement) to be discharged

discharge

of record in accordance with the

of such lien by

deposit

or by

bonding

proceedings. b) If

Owner

fails

to

materialman' s or similar statutory lien inclu(

vendor' s,
ding tax
any mechanic' s,laborer's,
liens, providing the underlying tax is an obligation of Owner by law or by a provision of this
cause

Agreement)to be
butshall

notbe

discharged of

record in accordance with

to,
obligated

the provisions of Article 14,Developer may,

paying the amount claimed to be due or by procming the discharge of such lien by deposit
or by bonding proceedings. If Developer' s Interest in the Premises ( or any portion thereof) is
threatened or a material interest of Developer is impaired, Developer may also, if Owner has not
done so ( or bonded such lien), compel the prosecution of an action for the foreclosure of such lien
by the lienor and the payment of the amount of the judgment in favor of the lienor with interest,costs
either by

and allowances.
3 Reimbursement for Amounts Paid Punmant to
18.

Section

Any amount paid by Owner in performing Developer' s

Article. a)
Arti
c
l
e
,
all costs and expenses incmred by Owner in
including
obligations
this
connection therewith, shall be reimbursed to Owner
days of Owner's demand, together with
( 0)
within thirty 3
a late charge on amounts actually paid by Owner, calculated at the Late Charge Rate from the date
of notice of any such payment by Owner to the date on which payment of such amounts is
this

as provided in

Any amount paid by Developer in performing Owner'

by Owner. b)
s obligations as provided in this Article, including all costs and expenses incurred by
Developer in connection therewith,shall be reimbursed to
Developer within thirty 30)(days of
Developer' s demand, together with a late charge on amounts actually paid by Developer, calculated at the
Late Charge Rate from the date of notice of any such payment by Developer to the date on which
payment of such amounts

received

received by Developer. Section

is
4

to the provisions

of

Waiver. Release and

Assunlption

18.

Owner' s payment or performance pursuant

ofObliptions.a)
consti ute, Owner's assumption
anyof Developer' s

nor be deemed to
this Article shall not be,

of Developer' s obligations to payor perform

Developer' s payment orperformance pursuant

present or: future obligations hereunder.b)
to the provisions of this Article shall not be,
nor be deemed to consti ute, Developer' s assumption
s
obligations
to
any
of
of Owner'
Owner's
payor perform

past,

past,
present or future obligations
hereunder. ARTICLE 19.
OF

EVENTS

DEFAULT, CONDmONAL LIMITATIONS, REMEDIES, ETC.Section 19. 1 Definition. Each of the

fol owing

events

" of Default"hereunder: a)
an Event
shall be an Event

under
the Ground

Leasewhich

results

ina

termination

thereof;

of

Default

Developer shall default in the observance or performance of any term,

covenant or condition of this Agreement on Developer' s part to be observed or performed and,if no
cure period is expressly provided for herein, Developer shall fail to remedy such Default within
Notice"),or if such a
"
30)days after notice by Owner of such Default ( the Default
thirty (
Default is of such a nature that it cannot reasonably be remedied within
thirty (30)days ( but
thirty
3
(
0)
s
h
a
l
not
(
cure),
Devel
o
per
within
days after the giving
i)
is otherwise susceptible to
of such Default Notice,advise Owner of Developer' s intention to institute all steps necessary (and from
time to time,
as reasonably requested by Owner,Developer shalladvise Owner of the steps being
taken) to remedy such default (which such steps shall be reasonably designed to effectuate the cure
thereafter diligently prosecute to completion
of such Default in a profes ional manner),and ii)
(
all such steps necessary to

b)

that

if

same; c)
to the extent permit ed by law, if
debts as
pay
its
unabl
e
to
is
it
generally
remedy

the

such

become due; d)
to

Developer

admits, in writing,

the extent permit ed by law,if Developer makes an

assignment for the

the extent permit ed 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
acquiesces in or suffers the appointment of any
or
or seeks, consents to,.
law,
trustee, receiver,custodian, assignee, sequestrator, liquidator or other similar official of Developer, of all or any
substantial part of its properties, or of all or any part of Developer' s Interest in the Premises, and
SO) days after
(
the foregoing are not stayed or dismissed within one hundred fifty 1
benefit

of creditors; e)
to

such

filing

to the extent
or other action;f)

permitted

within
law,
if,
a proceeding

by

after the commencement of

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
such proceeding has not been
applicable Federal, state or other bankruptcy or insolvency statute or law,
within one hundred eighty (180)days after the appointment, without the
or if,
dismissed,
consent or acquiescence of Developer, of any trustee, receiver, custodian, assignee, sequestrator,
liquidator or other similar official of Developer, of all or any substantial part of its properties, or of all or any
part of Developer's Interest in the Premises, such appointment has not been vacated or stayed on
appeal or
otherwise, or if,within one hundred eighty (180) days after the expiration of

one hundred fifty (150) days

any

stay, such appointment has not been vacated; g)if a levy under execution
amount of One Hundred Twenty- Five Thousand
or attachment in an aggregate
Dollars ($125,000) as
( adjusted for inflation in accordance with the Ground Lease) at anyone time is made
such

against theProjectSiteorany
part

thereof

appertaining thereto ( except for a levy made in connection with actions taken by Owner (other than
holding Owner's Interest in the Premises)), or this Agreement and such execution or attachment is
not vacated or removed by court order, bonding or otherwise within a period of sixty (
60)
days,subject to Unavoidable Delays after such levy or
h)if a

default by Developer under the Leaseand/ or the Garage

Easement Agreement shall have occurred and be continuing beyond any applicable cure period,including
any cure period applicable to a Recognized Mortgagee;
at achment;

or

i)
a

default by Developer under the Reciprocal

Development
Use,
and Easement Agreement among Developer,Jefferson Plaza Ltd.,a Florida limited partnership, the
City and Owner dated
October 21,
1997 which continues beyond any
applicable cure period. In the event of a Default
the

passageof

time

wou; ld

which

constitute an.
Event

of

Access,

with the giving

Default,Owner'

of notice to Developer and

s notice to Developer shall

state with specificity the provision of this Agreement under which the Default is claimed, the nature and
character of such Default,the facts giving rise to such Default, the date by which such Default must
be cured pursuant to this Agreement, if applicable, and,if applicable, that the failure of Developer to

cure such Default by the date set forth in such notice will result in Owner having the right to
terminate this Agreement. With respect only to Development Disputes, Owner' s allegation of a Default shall
be subject to expedited arbitration in accordance with the
provisions of Article 22,
period provided in
provided Tenant shall initiate any such arbitration within the applicable grace
Section 19.1 or within ten 10)(
business days after receipt of Owner' s notice if

no such grace period is provided therein.Notwithstanding the foregoing,no Event of Default

shall be deemed to have occurred until such time as Owner shall have given Developer notice of
the occmrence of an Event of Default; provided,however, if Developer shall dispute,
in ac ordance with the provisions of Article 22,
Owner' s assertion that
an Event of Default
( business days after the giving of such notice by Owner, an Event of
has occurred within ten 10)
Default shall not be deemed to have occurred and Owner shall not be permit ed to exercise any
rights against Developer stated herein to arise out of an Event of Default until such time as the Arbitrator
or a court,if applicable,

Event of Default has occurred. Notwithstanding anything to the

shall be deemed to have occurred if Guarantor
cures such default pursuant to the Completion Guarantee or otherwise perform or cause to be
performed the covenant, condition or agreement on Developer' s part to be performed hereunder, and Owner

has determined

that an

contrary contained herein, no Event of

Default

accept performance with the same force and effect as though performed by Developer;
provided, however,all cure periods provided to Guarantor shall
shall

run concurrently

withthecureperiods

to
provided

2
19.

Section

Enforcement ofPerfonnance. If an Event

of

Default occms, Owner may

enforce performance or
to a)
(
recover damages for breach
(
this Agre ment, or b)
elect

observance by Developer of the applicable provisions of

of this Agre ment or (c)in the circumstances described
terminate this
a),

in

Section 19. 3(

Agreement

a).
Section
toSection 19.3(

pursuant

19.

EJq)

iration and Tennination

of

Aareement. a)
If an Event of Default

occurs

in a termination of the Ground Lease, this Agreement

having jurisdiction
over any case
shall terminate. If such termination is stayed by order of any court
or
state
statute,
or by federal
1(
or 19.
described in Sections 19.1(
then,fol owing
f)
e)
in any such case,
the expiration of any such stay,or if the trustee appointed
Developer or Developer as debtor-in-possession fails to assume Developer' s obligatio~under
days after entry of the order for
this Agreement within the period prescribed therefor by law or within thirty ( 30)
relief or as may be allowed by the court,Owner,to the extent permitted by law or by leave
of the court having jurisdiction over such case,
shall have the right,at its election,
possession or
to terminate this Agreement on five 5)
( days notice to Developer,Developer as debtor- inthe trustee.Upon the expiration of the five- day periodthis Agreement shall expire and
terminate and Developer, Developer as debtor-in-possession and/or the trustee

under the Ground Lease which results

Premises
and possession
shall quit and sur ender Developer' s Interest in the
3(
in
Section
19.
provided
as
Agreement
If this
thereof. b)
a),
Owner
is terminated

immediately

enter and repossess Developer' s Interest

may,without notice, rePremises and may dispossess Developer

in

the

summary proceedings,

by

to applicable Requirements. Section

Developer
4 Strict Perfonnance, No failure by Owner or
to insist upon strict performance of any
19.
to such party by
covenant, agreement, term or condition of this Agre ment or to exercise any right or remedy available
reason of the other party's default or an Event of Default, shall constitute a waiver of any
writ of

such

possession,

in

bankruptcy

court or otherwise, subject

Default or of such covenant, agreement, term or

or of any other covenant, agreement, term or condition. No covenant, agreement, term or condition of
either
with by either party,and no default by
to be performed

Default

condition
this Agreement

proceedings

or Event of

or complied

party,shall be waived,altered or modified except by a written instrument executed by the other party. No
waiver of any Default or Event of Default shall affect or alter this Agreement, but
each and every covenant, agreement, term and condition of this Agreement shall continue in full
to any other then existing or subsequent Default. Developer' s compliance with any request
and effect with

force

or demand made by

not bedeemedawaiver

respect

Owner

shall

Developer'
of

19.5 Ria- ht to

Section

EtVoin Defaults. With respect to Development Disputes and all other disputes, in the event of
Developer' s Default or an Event of Default, Owner shall be entitled to seek to enjoin the Default or
Event of Default and shall have the right to invoke any rights and remedies allowed at law or in equity
or by statute or otherwise, except to the extent Owner's remedies are expressly limited by the

respect to Development Disputes and all other disputes, in the event of any default
by Owner of any term, covenant or condition under this Agreement, Developer shall be entitled to
seek to enjoin the default and shall have the right to invoke any rights and remedies allowed at law
or in equity or by statute or otherwise, except to the extent Developer' s remedies are expressly
limited by the terms hereof. Each right and remedy of Owner and Developer provided for in
this Agreement shall be cumulative and shall be in addition to every other right or remedy provided for
in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise, except
to the extent Owner' s remedies and Developer' s remedies are expressly limited by the terms
hereof, and the exercise or beginning of the exercise by Owner or Developer of anyone or more of the
rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise shall not preclude the simultaneous or later exercise by Owner or Developer of
any or all other rights or remedies provided for in this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise, except to theextent Owner' s remedies and Developer'
s remedies are expressly limited by the
terms hereof.With

hereof.Section

terms

6 Remedies under
19.

relief is entered or if any stay of proceeding or

other act becomes effective against Developer, Developer' s Interest in the Premises, or Developer' s
interest in this Agre ment, or Owner, Owner' s Interest in the Premises, or Owner' s interest in the

Bankrqptcy and Insolvency Codes. If an order

for

proceeding which is commenced by or against Developer or Owner,

as applicable, under the present or any future Federal Bankruptcy Code or in a proceeding which is
commenced by or against Developer or Owner, as applicable, seeking
a reorganization, arrangement, composition, readjustment, liquidation,dissolution or similar relief under any other
present or future applicable federal,state or other bankruptcy or insolvency statute or law, Owner
or Developer, as applicable, shall be entitled to invoke any and all rights and remedies available to it
under such bankruptcy or insolvency code, statute or law or this Agreement ( except to the extent
Owner' s remedies and Developer' s remedies are expressly limited
Agreement, as applicable, in any

the

by

terms hereof). Section 19.7 Irnwection. Without in any way limiting Article 4 hereof,
shall have the right, upon twenty- four (
24)hours prior notice to
Owner and its representatives
Developer, to enter upon the Project Site to conduct inspections for the purpose of determining whether
or an Event of Default has occurred, provided that Owner shall be

a Default

accompanied by a representative of Developer

unreasonably interferewith

theConstruction

of the

and

Project. A:\

provided further that such entry shall

not

Developer agrees to make a representative of Developer available to accompany Owner on any such
inspection.
ARTICLE

NOTICES,CONSENTS AND
20.
Section 20.1 Service of Notices

APPROVALS

In Writini. Whenever it is provided herein that

a)
or served upon,
notice,demand, request, consent, approval or other communication shall or may be given to,
any Recognized Mortgagee),or whenever either of the parties
(
either of the parties by the other or
desires to give or serve upon the other any notice,demand,request, consent, approval or
other communication with respect hereto or to the Project Site, each such notice,demand,request, consent,
20.1 as a Notice")
in this Section
" shall be
approval or other communication ( referred to
and

Other

Communications.

so indicated elsewhere in this Agreement) and shall be effective for any

purpose only if given or served by (i)certified or registered U.
Mail,postage prepaid,
S.
a recognized national
(
personal delivery with a signed receipt or ill)
return receipt requested, ( ii)
in

writing w
( hether or not

courier service, addressed

follows:if to Developer: RDP

RoyalPalm Hotel Limited Partnership c/

as

Peebles Atlantic Development Corporation

Suite
Second
E.
4650 100 S.
Street

Florida3 131

Attention: R.

Peebles, President with a copy

to: RDP Royal Palm Hotel Limited
o Peebles
Partnership c/
Atlantic Development

Donahue

Corporation

Washington, DC

20037Attention:
S.

P.
Newell,

Executive

Vice

Suite 606
2600 Virginia Avenue, No.,

and to:
Holland &

Knight LLP

Thirtieth Floor

701 Brickell

Avenue Miami,
Florida 33131 Attention: Stuart
Hoffman, Esq. if

K.

to Owner:Miami Beach
Redevelopment Agency
Executive Director 1700
Convention Center Drive
Miami

Beach,

Florida 33139

with a

copy to:

Miami Beach
Redevelopment Agency General

Counsel 1700 Convention

Center

Drive Miami Beach, Florida

33139 and
City of Miami
Beach City Manager
1700

Convention

Center Drive

Miami Beach, Florida 33139

with a
City
copy to:
of Miami Beach

City Attorney

1700

Convention Center

Miami
Drive
Beach,Florida 33139
and with
Minsker 1401
a copy to: Bloom &

Brickell Avenue,

Miami,
Suite700

33131
Florida

Any Notice may be given,in the manner provided in this Section

s behalf by its attorneys designated by such party by Notice hereunder,
on its behalfby any Recognized Mortgagee designated in

such
actually

request.

received,as indicated on the receipt

on either party'
at Developer' s request,
and (y)
20. 1,x)
(

Effectiveness. Every Notice shall be effective on the date

b)
or on the date delivery thereof is refused by the

therefor

in this Agreement
as provided in the preceding
Notice shall mean the effective date,
thereof. c)
References. All references

recipient

of
to the date"
"

b).
Section 20.

subsection (
2

Consents and Approvals. a)Effect of Grantini

or Consents.All consents and

or Failure to

which may be given

Grant Approvals

Agreement shall,as a

approvals
in wrlWtg. The granting by a party of any consent to or approval of any
act requiring consent or approval under the terms of this Agreement, or the failure on the part of a party to
object to any such action taken without the required consent or approval~shall not be deemed a
waiver by the party whose consent was required of its right to require such consent or approval
under this

condition of their effectiveness, be

any other act.

b)
Standard.All consents and approvals which may be given
for
by a party under this Agreement- shall not (whether or not so indicated elsewhere in
this Agreement) be unreasonably withheld or conditioned by such party and shall be given or denied within
the time period provided, and if no such time period has been provided, within a reasonable time.
Upon disapproval of any request for.a consent or approval, the disapproving party shall, together
with notice of such disapproval, submit to the requesting party a written statement setting
forth

with specificity

its

If a party entitled to grant or

such disap roval. c)Deemed Approval. (i)
deny its consent or approval t(he "Consenting Party")within the specified time period shall fail to
below, and provided
2(
c)(
otherwise provided in Section 20.
do so,
ii)
then,except as
in
which
such
the
envelope
request is transmit ed
that the request for consent or approval ( and
to the extent permitted by the carrier)bears the legend set forth below in capital letters and in a type
the matter for which such consent or approval is requested
size not less than that provided below~
shall be deemed consented to or
reasons

for

FAILURE TO RESPOND
approved, as the case may be:
TO THIS REQUEST WITHIN THE TIME PERIOD
PROVIDED IN THE HOTEL DEVELOPMENT AGREEMENT BETWEEN
MIAMI BEACH REDEVELOPMENT AGENCY AND RDP ROYAL
PALM HOTEL LIMITED PARTNERSHIP SHALL CONSTITUTE AUTOMATIC

APPROVAL OF TIlE MATTERS

DESCRIBED

HEREIN WITH

SECTION [FILL IN APPLICABLE

SECTION] OF

SUCHHOTEL

DEVELOPMENTAGREEMENT."

JNM\
A:\

RESPECT

TO

Notwithstanding anything to the contrary contained in Section

" hereunder and the
i)
above, if the Agency or the City shall be the Owner"
20. 2( c)(
below,
to
iii) be consented to
in Section 20.2(c)(
matter, other than a matter refer ed to
or the City
or approved requires the consideration of the Agency'sboard of directors and/
Commission, as applicable (whether pursuant to Requirements or the written opinion of the City Attorney or
the Agency' s General Counsel),then,provided Owner gives Developer notice of such requirement
within the time period provided for such consent or approval, such matter shall not be deemed
date
approved or consented to unless the Owner shall fail to respond to Developer' s request by the
business days after the first regular meeting of the Agency's board of directors (
which is five ( 5)
( 0)
or of the City Commission, as applicable) which
occurs no earlier than ten 1
and/
but
as
applicable);
request,
request
(
or
any event
in
second
days following the receipt of such
days following
(
not later than sixty 60)
ii)

request or
(
second request), as applicable. ill)Owner hereby agrees, for so long as
hereunder,.that,subject to Requirements, the
"~,
the City shall be the r"
or
appl
icable, shall be authorized to grant
as
City
or
the
Manager,
the Agency

such

Agency

the

Executive Director of
consents orapprovals on
2.

behalf

of

the Agency and/ or

City,

as applicable,

with respect

to Section

c)
and Article 3 and Article 7 of this Agreement.iv)
provisions of this Subsection shall not be construed to modify or otherwise affect a party' s right
litigate, as applicable, the failure of a party to act reasonably in granting or denying a
1(

The foregoing
to arbitrate or

respondto a request for a consent, but

for consent or to timely
to
delay the time period within which
as applicable, shall not serve
request

stich right

to arbi1rate or litigate,

Remedy for RenJ~

grant or denial of such request is required hereunder. d)
1 to Grant Consent or Approval. It:
pursuant to the terms of this Agreement, any consent
or approval by Owner or Developer is alleged to have been unreasonably withheld, conditioned
or delayed, then any dispute as to whether such consent or approval has been
unreasonably withheld, conditioned or delayed shall be settled by arbitration or litigation,as applicable. In the event
there shall be a final determination that the consent or approval was unreasonably withheld, conditioned
or delayed so that the consent or approval should have been granted, the consent or approval
shall be deemed granted and the party requesting such consent or approval shall be entitled
to any and all

resulting therefrom, subject

damages

to the limitations provided in this Agreement e)No Fees.etc.

fees or charges of any kind or amount shall be required by either party

hereto as a condition of the grant of any consent or approval which may be
required under this Agreement ( provided that the foregoing shall not be deemed in any way to
limit Owner acting in its governmental, as distinct from

Except

as

its proprietary,

specifically provided herein, no

charging
capacityfrom

governmental

on
fees

3 Notice of
20.

Section

Detailed

Notwithstanding anything to the contrary contained in this Agreement (

P)
an~"

including without
Articles

limitation
Copies of the Detailed Plans shall be submitted
a)
4 and 20):
3,

Owner pursuant
to
Owner' s Consultant b)Copies of all Notices
to Sections 3,4 and 5 of this Agreement ( whether or not such Notice includes
Detailed

solely

to

Plans)
shall be distributed to
s Consultant. ARTICLE 21.FINANCIAL

Owner'

Developer shall
AND RECORDS Section 21.1 Books and Records: Audit Riihts.a)
of Developer' s
at all times during the Tenn keep and maintain ( separate from any
REPORTS

other books,records and accounts),accurate and complete records pertaining to the construction of the
Hotel and such other matters referenced in this Agreement, in accordance with the Accounting Principles
with such exceptions as may be provided for in this Agreement. Owner and its
representatives shall have, during normal business hours and upon reasonable advance notice, access to the books and

records of Developer pertaining

and audit i(ncluding copying),

to

the Hotel for the purpose of

examination

of account properly reflecting the construction of the Hotel. b)The

obligations of Developer under this Article to maintain, and to provide the Owner and its representatives access
to,the books and records related to the Hotel shall
survive
including

books

years.c)
The
of this Agreement for a period of seven (7)
right of Owner to audit the books and records of Developer pertaining to the
regarding the Construction Work,shall be governed by the provisions
Hotel, including, without limitation, the books of account
Lease as if such books and records were specifically described
of Article 28 of the Ground
'' and records" described in
in such
Article 28 as being part of the books
the

expiration

such

Article 28;

provided,however,

copying of

all

ARTICLE

22.
22.1

Section

ARBITRATION

E~
ited

ArbitrationofDevelo.

Di!Wutes.a)If Developer or Owner asserts that a Development Dispute

has arisen, such asserting party shall give prompt written notice thereof to the other party and
to
pment

later than five (

The Development Arbitrator shall no
Arbitrator.b)
business days after receipt of such notice,hold a preliminary, informal meeting with Owner and
5)
Developer in an attempt to mediate such Development Dispute. If such Development Dispute shall not
be resolved at that meeting, the Development Arbitrator shall at such mediation meeting establish
nor later than
business days after the mediation hearing
a date,
not earlier than five ~)
to
be held in
a
Hearing")
"
a
hearing
(
for
medi
a
t
i
o
n
twenty (20)
hearing
business days after the
accordance with this Agreement

the

Development

the right
Developer and Owner shall have
resolve such Development Dispute. c)
to make one 1)
written submission to the Development Arbitrator prior to any Hearing. Such
(
other party not later than two (
submission shall be received by the Development Arbitrator and the
2) business days prior to the Hearing Date. The parties agree that no discovery ( as
the term is commonly construed in litigation proceedings)will be needed and agree that neither
party nor the Development Arbitrator shall have discovery
to

connection with a Development Dispute. d)Each Hearing shall be conducted

by the Development Arbitrator. It is the intention of the parties that the Hearings shall be
conducted in an informal and expeditious manner. No transcript or recording shall be made. Each party shall
have the opportunity to make a brief statement and to present documentary and other support
individuals,
(
of not more than four 4)
the testimony
for its position, which may include
either
of
favor
in
two 2)
( of whom may be outside experts.There shall be no presumption
not covered herein shall be governed by the Amended 1993
party' s position.Any procedural matter
edition of the CPR Rules for the Arbitration of Business Disputes and the Florida Arbitration Code to
rights

in

the

inconsistent with the CPR Rules and this Section 22. 1.e)
The Hearings shall be held in a location selected by the Development
of
Arbitrator in Dade County,Florida. Provided the Development Arbitrator is accompanied by representatives
both Developer and Owner, the Development Arbitrator may,at its option, visit the work
extent

not

connection with any Development Dispute. t)

Once it has been determined by the Development Arbitrator or by agre ment of
i)
the parties with respect to any Development Dispute that Developer' s proposed modifications are

site

material with

to

regardto, ormaterially
inconsistent

make an independent review in

with,

3.
1 or 3. 2,
Specifications or the Plans or Specifications pursuant to Semon
respectively, or ii)
( in the case of a Dispute concerning whether Owner has unreasonably failed or has
change order under
not been given the opportunity to approve or consent to a
account,
into
take
shall
De
v
e
l
o
p
m
e
n
t
5(
b),
Section 3.
in determining whether
the
Arbitrator
described
in Section 3.
Owner has acted unreasonably in failing to grant an approval
or consent as
is subject
change
order
whether
the
c),
or in determining
b)
7(
or Section 3. 7(

to

Owner'

he

d),
7(
3.
such
relevant which are not inconsistent with this Agreement (including

s approval or consent
deems

following factors: 1.
The

under Section

factors as

items 1 through 7,below),which in all events shall include the

Owner does not have any approval rights with respect to the matter of interior design

and decor of the Hotel except to the

the same is reflected

in

extent

or pursuant to Section
first class hotel at

the Preliminary Plans and

Specif cations

b).
2.The Hotel shall be a
3. 5(
~ in the,
a quality compatible with the quality forth

original approved

Plans

and

Preliminary

Plans and Specifications or the original approved

Specifications ( without regard to

The mutual goal of Developer and Owner that Hotel

changes thereto).3.
The mutual goal
ed.4.
Construction Costs overruns shall be minimi7.
of Developer and Owner that the ConstlUction of the Project
be

completed within approximately eighteen (

18) months from the Commencement of Construction,

no

event later

but in
Applicability of
than the Completion Deadline. s.

magnitude of the modification to the

previously approved Preliminary Plans and Specifications or Plans and Specifications, as
The
any Requirement. 6.

The magnitude of the consistency or

7.
and
Specifications or Plans and Specifications,
the previously approved Preliminary Plans

applicable.

inconsistency from

Pending resolution of the Development Dispute, Developer may not implement

applicable. g)
as
The Development Arbitrator
of such Development Dispute. h)
the matter which is the subject
two (2)
later
than
Dispute
not
Development
shall render a decision, in writing, as to any
of the Hearingseregarding such Development Dispute and
following the conclusion
business days
business days thereafter.
shall provide a brief written basis for its decision not later than five ( 5)
to: (
As to each Development Dispute,the Development Arbitrator' s decision shall be limited
or
Specifications
to the Preliminary Plans and
i) whether or not
Developer' s proposed modifcation( s)
2(a)or (
b)
1(
the Plans or Specifications pursuant to Semon 3.
or 3.
(
b),
respectively,ismaterial,ii)
whether

or not

( whether or not Owner

is material y inconsistent, ill)
respectively,
(
a) or b),
bas unreasonably failed to approve or give its consent to any modifications to the Preliminary Plans
Section
Specif cations pursuant to
b),
or the Plans and
to Section 3.1(
or Specifications pursuant
whether or not Owner
iv)
or b);
(
3.
2(a)
(unreasonably failed to approve or consent to
b);
a change order as to which Owner
has approvalrights pursuant to Section 3.4((
whether or not Developer failed to obtain Owner' s consent to a change order to
(
and/ or v)
The
4(b).
which Owner bas approval rights pursuant to Section 3.
or

3. 2(

Devlopment

The decision of
any other or dif erent relief.i)
binding on the parties for all purposes

Arbitrator may not award

the Development Arbitrator shall be final and

entered in any court of competent jurisdiction. The Owner and

Development Arbitrator with regard
Developer hereby designate Jan A.de Roos,Ph.D.,
to all Development Disputes which shall arise. Contemporaneously with the execution of this Agreement, such
writing its agreement to serve as the Devc; lopment Arbitrator. If for
in
individual
hasacknowledg
any reason such individual shall be unwilling to act as Development Arbitrator, then
the Owner and Developer hereby designate Mr.Niel Grondahl, to serve in its place.If for any reason
both such individuals shall be unwilling to act as Development Arbitrator, then the parties
shall cooperate to select an independent, neutral, professional firm having hotel development or construction
experience to serve as the Development- Arbitrator. If the parties cannot agree,then any party may ask
the CPR Institute for Dispute Resolution to select a substitute
and may be

will act as Development Arbitrator of that Development Dispute. Neither Developer (

shall hire
together with its Affiliates engaged in the hotel business)nor Owner
final
months after
or otherwise engage the Development Arbitrator until twelve 1
( 2)
who

completion

of

the Construction of the Project pursuant to

Section

3 above. Section 22.2

2.

Litieation.Any dispute between

the

parties,
other

than a
Development

Dispute,shall

be

RESERVED] ARTICLE 24.INVESTIGATIONS, ETC.Section

arbitration. ARTICLE 23.
in Investiptions. To the extent required by Requirements, Developer

to litigation and not

24.1 Coo.peration
shall cooperate

fullyand

subject

faithful y with any

investigation,

audit

by designation to compel the attendance of witnesses and to examine witnesses under

oath, or conducted by a Governmental Authority that is a party in interest to the transaction,
submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the
investigation, audit or inquiry. In addition, Developer shall promptly report in writing to the City
Attorney of the City of Miami Beach, Florida any solicitation, of which Developer' s officers or
directors have knowledge, of money, goods, requests for future employment or other benefit or thing
of value, by or on behalf of any employee of the Owner, City or other Person relating to the
procurement or obtaining of this Agreement by the Developer or affecting the performance of this
Agreement.

directly

or

ARTICLE

25.
HAZARDOUS
MATERIALS

S~

on 25.

1 General Provision. The

to this Agreement as if the

the Premises"
"
were references

in

Ground Lease shall be applicable

such Article 35 to

" Tenant"
Owner",
"
and

to Owner, Developer

the

and
Project

provisions of Article 35 of the

references

Site,respectively. Section 25. 2 Survival.The proVisions of this Article 25 shall

survive
the

expiration

sooner termination of

or
ARTICLE

this Agreement.. .

MISCELLANEOUS Section 26.

1
26.

Govemine Law and Exclusive Venue. This Agreement shall be

governed by,and construed in accordance with, the laws of the State of Florida, both
substantive and remedial, without regard to principles of conflict of laws.The exclusive venue for any

litigation arising out of this Agreement shall be Dade County, Florida,if in state court, and the U.S.
District Court,Southern District of Florida,if in federal court. The exclusive venue for any expedited
arbitration

arising
of

out
this

Agreementshall

a)
Oij)
tions. The captions
no way define, limit or
the scopeor
in

any

intentofthis

of

be as specified in Article 22 herein. Section 26.

2 References.

this Agreement are

describe
or
Agreement

for

the purpose of

convenience

of reference only, and

in

of reference

Table of Contents. The Table of Contents is for the purpose of convenience

b)
and
is
not to be deemed or construed in any way as part of this Agreement.
only,

Reference to OWner and

c)

Developer.

The use herein ofthe neuter pronoun in

any reference to Owner or Developer shall be deemed to include any individual Owner or Developer,

and the use herein of the words " successon and

shall be deemed to include the heirs,

Developer
or Developer.

assigns" or " successon or assigns" of Owner or

legal representatives and assigns of any individual

Owner

Owner' s and

d)

City' s Governmental Capacity. Nothing

in this

Agreement or

in the

parties' acts or omissions in connection herewith shall be deemed in any manner to waive,
impair, limit or otherwise affect the authority of the Owner or City in the discharge of its police or
governmental power.
Reference to "herein". "heretmder". etc. All references in this

e)

the terms " herein", " hereunder" and words of similar

distinguished

from the

paragraph, Section

or

import

shall refer to

Agreement to
this Agreement, as

Article within which such term is located.

f) Reference to " Approval" or " Consent". etc. All references in this Agreement
to the terms " approval", " consent" and words of similar import shall mean ''reasonable written
approval" or " reasonable written consent" except where specifically provided otherwise.
26. 3Entire
J.
AlP' eeIl'

Section
ent..

etc.a)

Entire

A~
ement.This Agreement, together with the

attachments hereto, contains all

of the promises, agreements, conditions, inducements and

and Developer concerning the development and construction of the Hotel on the
Project Site and there are no promises, agreements, conditions, understandings, inducements,
warranties or representations, oral or written, express or implied, between them other than as expressly
set forth herein and in such attachments thereto or as may be expressly contained in any
enforceable written agreements or instnnnents executed simultaneously herewith by the parties
hereto.Notwithstanding anything to the contrary set forth in this Agreement, theterms of this Agreement shall
supersede the terms of the Letter of Intent and the RFP and Developer' s response thereto.This
Agreement may be executed in counterparts, each of which shall be deemed an original but all of which
understandings between Owner

together

shall

represent

Waiver. Modification. etc.

instrument. b)
No covenant, agreement, term orcondition
this Agreement shall be changed, modified, altered, waived or terminated except by a

one

of
written instrument of change,modification, alteration, waiver or termination executed by Owner and
Developer. No waiver of any Default or default shall affect or alter this Agreement, but each and
every covenant, agreement, term and condition of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent Default or

default thereof.

A:\
JNM\

EX2(
CMB\HllDEVA.

EXECUT1ON.

Effect of Other TmnAAct1ons.No Mortgage, whether executed simultaneously with

c)

this Agreement or otherwise, and whether or not consented to by Owner, shall be deemed to modify
this Agreement in any respect, and in the event of an inconsistency or conflict between this Agreement

and any such instrument, this Agreement shall control. Section

26.

4 Invalidity of Certain

Provisions. If any provision of this Agreement or the application thereof to any Person or
any extent, finally determined by a court of competent jurisdiction to be invalid
and unenforceable, the remainder of this Agreement, and the application of such provision to
circumstances

Persons

is, to

or circumstances other than

those

as

to which it is held invalid and unenforceable, shall not

be affected thereby and each term and provision of this Agreement shall be valid and enforceable to
the fullest

law.

extent permit ed by

S~

on 26.

5 Remedies Cumulative. Each right and remedy of either party provided

for in this Agreement shall

be cumulative and shall be in addition to every other right or remedy provided for in this Agreement,
or now or hereafter existing at law or in equity or by statute or otherwise except
(
as
otherwise expressly limited by the terms of this Agreement),and the exercise or beginning of the exercise by a
party of anyone or more of the rights or remedies provided for in this Agreement, or now or hereafter
existing at law or in equity or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement),shall not preclude the simultaneous or later exercise by such party of any
or all other rights or remedies provided for in this Agreement or now or hereafter existing at law or
in equity or by statute or otherwise (except as otherwise expressly limited by the terms
this Agreement). Section

of

Sole Cost
either

party

exercises

any

of

26.6

Performance at Each Party'

se.Unless otherwise expressly provided in this Agreement, when

and E~

its rights, or renders or performs

any of its obligations

hereunder,

such party shall

do so at

its

sole

cost

andexpense. Section26.

7 Reco~

zed Mortaa& ee Char. ies and Fees. Developer shall pay any and all fees,
charges and expenses owing to a Recognized Mortgagee in connection with any services rendered by it
as a depositary
pursuant

provisions of

thisAgreement.

to the

Section26.
8

Intentionally

Section

26.
9

Successors

and AssilPls. The agreements, terms, covenants and conditions herein shall be binding upon,and
inure to the benefit of,Owner and Developer, and, except as otherwise provided herein,
their respective successors and permit ed assigns. If,
while Agency is the Owner hereunder, the Agency
shall

cease to exist, the City, by its signature hereto,hereby agrees to be bound with respect to all of

the terms, covenants and conditions of Owner

hereunder and Developer agrees to recognize the City

as Owner hereunder. There can be no assignment by Developer of its rights or obligations hereunder
or its interest in this Agreement,except Developer may assign all its rights hereunder to
a Recognized Mortgagee as security for the performance of Developer' s obligations under the
Loan Documents. This Agreement, however,shall automatical y transfer in con ection with a transfer of
Developer' s as Tenant) interest in the Ground Lease in accordance with the provisions of the
Lease.Section 26.

Ground

10 Notice of Defaults. Notwithstanding anything to the contrary set forth in this

Agreement, under no circumstances shall any party to this Agreement lose any right or benefit granted under
this Agreement or suffer any harm as a result of the occurrence of any Default or default of such party as
to which Default or default such party has not received notice thereof
the

from

other

party.Section.26. 11 No Rewresentations. Owner

the

conditionof

d City have made no representations herein as to

an.

the

12 CO(pOrate Obliptions. It is expressly understood that

Project Site. Section 26.
obligations, and, except as
this Agreement and obligations issued hereunder are solely corporate
otherwise provided in Article 15 and in the Completion Guarantee of even date herewith, that no personal liability
or is or shall be incurred by,the
will attach to,
incorporators, stockholders, officers, directors, elected or appointed officials ( including, without limitation, the Chairman and Members

of the Owner and the members of any other governing body of Owner) or employees, as such,
of the Owner or Developer, or of any successor corporation, or any of them, under
or by reason of the obligations, covenants or agreements contained in this Agreement or
implied therefrom; and, except as otherwise provided in Article 15 and in the Completion Guarantee of
, at common law or in equity or by constitution
even date herewith,that any and all such personal liability either
and any and all such rights and claims against,
or statute,of,
every such incorporator, stockholder, officer,director, elected or appointed officials including, without limitation, the Chairman
and Members of the Owner and the members of any other governing body of Owner) or employee,
as such, or under or by reason of the obligations,covenants or agreements contained
in this Agreement or implied therefrom are expressly waived and released as a condition of,

and as

aconsideration

for,the

of
execution

13 Nonliability of Officials
26.

Section

in Article 15,
no member,official or employee
and Employees. Except as otherwise provided
personal
l
y
or
shall
to
Developer,
or any successor in interest, in
the
be
Owner
City
liable
the
the event of any default or breach by the Owner or for any amount or obligation which may become
due to the Developer or successor under the terms of this Agreement; and,except as
otherwise
provided in Article 15,any and all such personal liability, either at common law or in
equity or by constitution or statute, of,and any and all such rights and claims against, every such Person,
under or by reason of the obligations, covenants or agreements contained in this Agreement
and as a consideration for,
or implied therefrom are expressly waived and released as a condition of,
the

of

the

of this

execution

14 Partnership Disclaimer. Peveloper acknowledges, represents and confirms that it

Agreement.Section 26.
is an independent contractor in the performance of all activities, functions, duties
and obligations

pursuant to this Agre ment. The parties hereby acknowledge that it is not their
venturet,enancyin-common, joint
between themselvesa
partnership, joint
intention to
tenancy, co- ownership or agency relationship for the purpose of developing the Hotel, or
for any other purpose whatsoever. Accordingly, notwithstanding " any expres ions or provisions contained
herein, nothing in this Agreement, the Ground Lease or the other documents executed by the parties with
respect to the Hotel shall be construed or deemed to create, or to express an intent to
in-common, joint tenancy, co-ownership or agency relationship
create, a partnership, joint venture,tenancyof any kind or nature whatsoever between the parties
hereto. The provisions of this
Section
create

26.

14 shall

survive expiration of this Agreement. Section 26.15 Time Periods.

Any time periods in this Agreement
(
days shall be deemed to be computed based on business
of less than thirty 30)
period is already designated as being computed based on business days).
days (regardless of whether any such time
In addition, any time period which shall end on a day other than a Business
Day

shall be

deemed to

extend to the next Business Day. Section 26.16 No Third Party Ripts.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
Agre ment; provided, however, that a Recognized Mortgagee or its Designee (as such term is defined
Ground Lease)shall

be thirdparty

beneficiarieshereunderto

extent
the

in the

Section

26.17 No

Conflict oflnterest. Developer represents and warrants that, to the best of its actual knowledge,
no member, official or employee of Owner or the City has any direct or indirect financial interest
in this Agreement nor bas participated in any decision relating to this Agreement that is prohibited
Developer represents and warrants that, to the best of its knowledge, no officer,agent,
by law.
employee or representative of the City or Owner has received any payment or other consideration for
the making of this Agreement, directly or indirectly, from Developer. Developer represents and
warrants that it has not been paid or given, and will not payor give, any third person any money
or other consideration for obtaining this Agreement, other than normal costs of conducting business
and costs of professional services such as architects, engineers, and attorneys.Developer
acknowledges that Owner is relying upon the foregoing representations and warranties in entering into
this Agreement and would not enter into this Agreement absent
the

same. EXECUTION IN WIlNESS WHEREOF,

bound,have executed

this A

t as

of

Owner and

Developer, intending

to be

legally

the day and year first

above written.

BEACH

MIAMI

FPMFNr

AGENCY By: ~Neisen

O.

Chairman

SEAL]

r::
7t.
By:~~ ~~

Kasdin,

Robert
Parcher, Secretary RDP ROYAL
PALM HOTEL
LIMITED PARlNERSInP, a Florida

limited

partnerShip By:P ADC HOSPITALITY

CORPORATIQN I,
a Florida=corporation,

as GeneraIParti er '~ APPROVED

AS
TO
FORM &LANGUAGE
EXECUrl0N2)\
FOR EXECUTIONA:\
JNM\
CMB\HTLDEV EX2(
A.

S-4-

98 53
1JtI1d/~
opment

Agency
Counsel

General

Agreement for the sole purpose of Section

WITNESS:

EXECtmON.

4 herein.

S- 498

6.

2)\

OF~
BEAiL

Print

tt;/

Neisen
Mayor ATTEST:

O.~

By:~
J--

f~
Robert Parcher,
IIJltwy& E~
54

AS

Nam . SEAL]A:\ JNM\

CMB\HfLDEV

EX2(
A.

APPROVED

FORM&
TO

LANGUAGEFOR

Exhibit A

LAND

RP LAND

The South
12. 65 feet m(easured along the lot line) of
Lots 7 and
6 and 15 and the North 10.7
14,
all of Lots
feet (
measured
along the
lot line)
of Lots 5 and 16,
all in
Block 56,of FISHER' S FIRST SUBDMSION OF ALTON
BEACH, according
to the plat thereof,
at Page 77,of the Public Records of
as recorded in Plat Book 2,
Dade County, Florida, together with that certain parcel of land lying East and adjacent
to the above described parcel; said parcel bounded on the South by the
South line of the above described parcel extended Easterly; bounded on the North by
the North line of the above described parcel extended Easterly; bounded on the East "by
the Erosion Control Line of the Atlantic Ocean and
bounded on

by the East line of the above mentioned Block

56.ORECRRW LAND
measured along the
South 40.00 feet (
lot line)
of Lots 5
and 16 and the North one- half of Lots 4 and 17,all
in Block
56, of FISHER' S FIRST SUBDMSION OF ALTON BEACH, according to
the plat thereof, as recorded in Plat Book 2,at Page. 77,
of the
Records
of
Dade
County,
together
that
with
certai
n
parcel
of
land
Florida,
Public
lying
East and adjacent to the above described parcel; said parcel bounded on the South
by the South line of the above described parcel extended Easterly; bounded on the
North by the North line of the above described parcel extended Easterly; bounded on the
the West
The

East

by the Erosion Control Line of the Atlantic Ocean and

West by the East line of the above mentioned Block

56. Alllands

describedabove

located,lyingand

being

in

bounded

on

the

COMPLETION GUARANTEE
This COMPLETION GUARANTEE ( the " Guarantee") is made
DONAHUE
1998, by R.

day of
PEEBLES, a resident of Dade County,
as

of the _

Guarantor"), in favor of MIAMI BEACH REDEVELOPMENT

Florida, individually ( the "
AGENCY, a public body corporate and politic ( the "
Agency" or the "Owner"),and the CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida ( the "
City").
RECITALS:

A.
The Agency

of Lease ( the Ground

"

is contemporaneously herewith entering into that certain Agreement

Lease''),
dated as of the date hereof,between
the Agency, as Owner, and

RDP Royal Palm Hotel Limited Partnership, a Florida limited partnership, as Tenant,pursuant to
which Developer h(ereinafter defined) has agreed to lease the Land ( as defined in the Ground Lease)
on which

theRotel (

as defined in the Ground Lease) will be

constructed.

B.The Agency is

Developer.

C.The Agency previously entered into at certain

the "

Garage Project'').D.Pursuant to the Ground Lease and the

also contemporaneously herewith entering into that certain

"
Agreement''),dated as of the date
Hotel Development Agreement ( the Hotel
Development
hereof,between the Agency, as Owner, and RDP Royal Palm Hotel Limited Partnership, a Florida
Developer"), as
limited partnership, ( the "

Garage Development Agreement (

September 20,1996, between
the Garage Development Agreement"),dated as of
the Agency,and St. Moritz- Hotel Corp.,
a
Florida corporation ("SMHC"), in order to
Inc.,
the
rights
and
obl
i
g
ati
o
ns
of
and
SMHC
document
respective
Owner
relating to the design,development
and construction of the Proj"
ect", as defined in the Garage Development Agreement (including
the Roadway Extension as defined in
the Ground Lease),

Agreement, Developer will

be

Hotel Development
to
develop,
furnish
and
equi
p
the
Hotel
in
accordance with
required
construct,

the terms thereof. In

consideration of the foregoing premises and for other good and

valuable consideration the receipt and legal suf iciency of which is hereby acknowledged, Guarantor hereby
agrees for the benefit of the Agency and the
Capitalized terms defined and used herein are used herein
City as follows:1.
the context otherwise requires, capitalized terms
which are used herein without definition and which are defined in the Hotel Development Agreement,
are used herein with the meaning assigned to such capitalized terms in
with the meanings assigned herein to such terms.Unless

the Hotel Development Agreement. 2.Provided that the

Owner
the

is not in default ( beyond

conditions or obligations
terms, covenants,

any applicable notice and cure period) of any of

the Hotel Development Agreement
under Section 6.1 of

or

under Section

irrevocably, continuously and unconditionally, guarantees to the Agency and the City the
performance of the obligations of Developer to Finally Complete the Project (as hereinafter defined
in this Section
2)by the Completion Deadline.Notwithstanding anything to the contrary
contained in this Guarantee or the Hotel Development Agreement, the Project shall be deemed "
Finally Complete" for the purpose of this Guarantee if ( i)
the Project shall have been finally completed
in accordance with the Plans and Specifications, as certified by the Architect, and ( ii)all of
the Improvements in the Project shall have been issued Final COs (as such term is defined in the
Ground Lease);provided, however, that to the extent the reason such Final COs shall not have been
issued is due to the Owner' s failure to substantially complete the Garage Project, which includes, but is
not limited to,the issuance by the applicable governmental authority of a temporary certificate
of occupancy or completion or a certificate of occupancy or completion for the Garage Project so
that Owner can occupy and use the Garage Project for its intended purpose and provide Developer
with the Easement
"" for the number of Parking
" Spaces" in the "Facility," (as such terms are
defined in that certain Garage Easement Agreement dated as of the date hereof between Owner
Tenant is entitled pursuant to the Garage Easement Agreement, then
and Developer), to which th~
this clause ( ii)"
shall be deemed satisfied. The obligations being guaranteed by Guarantor pursuant to
this
Section 2,
are hereinafter collectively referred to as the "
Completion Obligation". 3.
If the Completion Obligation is not performed by Developer
by the Completion Deadline, then,upon demand of the Agency or the City,Guarantor shall
perform the Completion Obligation in accordance with this Guarantee. The Agency and the City agree
to accept performance by the Guarantor of all or any of the covenants,conditions or agreements on the
Developer' s

part to be performed under the Hotel Development Agreement with the

effect as though performed by.

same

force

and

the Developer thereunder. 4.Guarantor shall not be deemed

to have failed to perform

his obligations under Section 2 hereof until Guarantor shall have failed to perform the
Completion Obligation within the cure period provided to Developer under the Hotel Development Agreement
and all cure periods provided to Guarantor shall run concurrently with the cure periods provided
to Developer
under the Hotel Development Agreement. 5.
Guarantor expressly agrees that the Agency or the City, as
the case may be,
may,in its sole and absolute discretion, without notice to or further assent
of Guarantor and without in any
waive
liabilities of Guarantor hereunder: ( a)

way releasing, affecting or impairing the obligations and

compliance with, or any default under, or grant any other
modify, amend or change
the
Hotel Development Agreement; ( b)
indulgences with respect to
any provision of the Hotel Development Agreement, or effect any release, compromise or settlement
assign its entire interest in this Guarantee and the Hotel Development
in connection therewith; or (c)
Agreement tothe City or any instrumentality of the Agency or,in accordance with the Ground Lease,
any other Person, or the City which succeeds to the rights of the Agency under the Ground
Guarantor'
(
Lease in accordance with the terms thereof. Notwithstanding the foregoing, i)
s obligations and liabilities hereunder shall be deemed to be released, affected or impaired to the
extent that Developer' s obligations and liabilities under the Hotel Development Agreement

released, compromised, settled or in any other way altered, and ( ii) no amendment or modification
to the Hotel Development Agreement which increases the
liability of Developer thereunder shall be
made without the express consent of the Guarantor.
Except as otherwise expressly set forth in
Section 2 and the last sentence
6.
of Section 5 of this Guarantee, the obligations of Guarantor under this Guarantee
shall be unconditional, absolute, continuing and irrevocable, irrespective of
the genuineness,
regul
a
ri
t
y
or
enforceability
Hotel
validity,
of the Development Agreement or any security which may
have been given therefor or in connection therewith or any other circumstances which might
otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee and the
obligations of the Guarantor hereunder shall not be affected, impaired,
modified or released by reason
of a)
(
the making by Developer, any Affiliate of Developer or Guarantor of any assignment for
the benefit of creditors or the bankruptcy or insolvency of Developer,
any Affiliate of Developer
or Guarantor, (b)
any action taken by Developer, any Affiliate of Developer or Guarantor in
bankruptcy or insolvenC)' proceeding, including, without limitation, disaffirmance of
any
( any default by Developer under
the Hotel Development Agreement or the Ground Lease, c)
the Hotel Development Agreement or the Ground Lease,d)
( the liquidation or dissolution of Developer,
Affiliate
of
Dev
e
l
o
per
e)
any
change
in or termination of the Guarantor' s
any
or Guarantor , (
( the enforcement by the Agency or the City of any of its rights
ownership interest in Developer, f)
Hotel
Devel
o
pment
Agreement
or the Ground Lease, or (
under the
the sale, conveyance,
g)
transfer or assignment by Developer of all or any portion of its interest under the Hotel Development
Agreement or the Ground Lease;it being agreed that in the event of any of
the foregoing, the liability

of the Guarantor hereunder shall continue hereunder as if such event had not occurred.
Guarantor understands that the Hotel may.be refinanced from time to time and agrees that such refinancings shall
not affect his obligations hereunder, regardless of the amount
Except as otherwise expressly
set forth in Section 2 and
of such refinancings. 7.
5
of
this
Guarantee,
the liability of Guarantor under this
Section
Guarantee shall be primary,direct and immediate, and not conditional or contingent upon pursuit by the Agency
or the City of any remedies Guarantor may have against Developer or any other Person
with respect to the Hotel Development Agreement, any of the Project Agreements ( as such term is defined
in the Ground Lease),
or any other agreement,whether pursuant to the terms thereof or by law
pursuant
any
other
security agreement or guaranty.Guarantor and the Agency each
or
to
acknowledge and agree that this Guarantee is a guarantee of performance in respect of the
Completion Obligation. Anyone or more successive or concurrent actions may
be brought hereon against
Guarantor with respect to the Completion Obligation, either in the same action or proceeding, if any,
brought against Developer or any other Person, or in separate actions as often as the Agency or the City,
in its sole discretion, may deem advisable. Guarantor may be joined in any action against
Developer in connection with the Hotel Development Agreement solely with respect to the
Completion Obligation.With respect to the Completion Obligation,recovery may be had against Guarantor in
such action or in any independent action against Guarantor without the Agency or the City first
pursuing or exhausting any remedy or claim against Developer or any other Person, as the case may
be,or their respective successors or assigns. Until termination of this Guarantee in accordance

the last sentence of

of Guarantor under this Guarantee shall continue after (i) any

assignment or transfer by Developer,

developer under the Hotel Development Agreement,of its interest under the Hotel

any subsequent
Development Agreement or (ii) any assignment or transfer by Developer, or any subsequent tenant
or

under the Ground Lease, of its interest under the Ground Lease.
8. (

Except as otherwise
a)

expressly set forth in this Guarantee, Guarantor

presentment and demand for payment and protest of non-payment; ( b)

a)
notice of all
notice of acceptance of this Guarantee and of presentment, demand and protest; ( c)

hereby expressly
indulgences under the

waives: (

Hotel Development

Agreement

or the Ground

Lease; ( d)
demand for

or performance of, or enforcement of,any terms and provisions of this Guarantee

Hotel Development Agreement or the Ground Lease; and ( e)all other notices and
otherwise required by law which Guarantor may lawfully
waive.

observance

or the

demands

b)
WAIVER OF JURY TRIAL. BY TIm EXECUTION HEREOF, THE

KNOWINGLY,VOLUNTARILY AND INTENTIONALLY AGREES

GUARANTOR
HEREB\;:.

THAT:

i)
NEITHER GUARANTOR, NOR ANY ASSIGNEE,SUCCESSOR, HEIR,
OR LEGAL REPRESENTATIVE OF ANY OF TIm SAME SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LmOATION
PROCEDURE ARISING FROM OR BASED UPON lHIS GUARANTY OR ANY OF THE

OBLIGATIONS WHICH ARE SECURED HEREBY, OR THE DEALINGS OR RELATIONSHIP BETWEEN

OR AMONG THE PARTIES

ii)
NEITHER GUARANTOR, NOR THE AGENCY OR THE CITY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN
WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT
HERETO;

BE
Hi)THE PROVISIONS OF THIS PARAGRAPHHA VB BEEN FULL
Y NEGOTIATED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL HAVE
NO EXCEPTIONS. THE PARTIES HEREBY ACKNOWLEDGE mAT THEYHA VB EACH

WAIVED;

BEEN REPRESENTED BY COUNSEL IN SUCH

iv)
NEITHER THE GUARANTOR, THE AGENCY, NOR THE CITY HAS
IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
WILL NOT BE FULL Y ENFORCED
b)
THE PROVISIONS OF THIS SECTION 8(
NEGOTIATION.

IN ALL
TInS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AND v)
AGENCY TO ENTER INTO THE GROUND LEASE AND THE HOTEL
INSTANCES;

or

Guarantor shall not enforce any right of subrogation he may now

DEVELOPMENT AGREEMENT. 9.
hereafter have against Developer by reason of any payments or acts of performance by

with the

of Guarantor hereunder, and Guarantor shall not enforce any remedy which
Guarantor now or hereafter shall have against Developer by reason of anyone or more payments or

acts

obligations

of performance in

of the

compliance

with the

obligations of Guarantor hereunder unless and until all

fully discharged, performed and satisfied,
subrogation rights as may be allowed under applicable law.

of Guarantor hereunder have been

obligations
whereupon Guarantor

shall have such

10.No setoff,
counterclaim or crossclaim,reduction or diminution of
an obligation or

any defense of any kind or nature (other than performance of the Completion Obligation) shall
be available to Guarantor in any action or proceeding brought by Owner to enforce
the
Completion Obligation; provided, however, that the foregoing shall not be deemed a waiver of the right
of Guarantor to assert any compulsory counterclaim arising from a claim brought by Owner
hereunder, nor

shall

the foregoing be deemed a waiver of or prejudice in any manner

whatsoever, of

Guarantor'

s right to assert any claim which constiutes a defense, setoff,counterclaim or crossclaim of any
nature whatsoever against Owner in any separate action or proceeding. Guarantor agree that if
at any
time all or any'.part of any amounts at any time received by the Agency or
City
the
from
Developer, Guarantor, any Affiliate of Developer or Guarantor, or any other Person, as the case may be,for
or with respect to the Completion Obligations are or must be rescinded or
returned by the Agency
by reason of any judgment or decree
of any court having jurisdiction ( including, without limitation,
by reason of the
insolvency, bankruptcy or reorganization of Developer, Guarantor, any Affiliate
of Developer or Guarantor, or any other Person),then Guarantor' s obligations hereunder shall, to
the

extent of the_
amount

existence

notwithstanding

guaranteed hereunder

which was

continue to

rescinded

or restored, be
by

to have continued in
City
and the obligation
the
deemed

such previous receipt

the
to have been discharged by such rescinded or restored amount shall

or

as

Agency

or

case may be, to the extent of such amount,whether or not

this Guarantee has terminated, and the obligations of the Guarantor in this sentence shall survive
ve

beef e ti.

reinstated,

the

the termination
hereof. 11.The rights and remedies afforded

to the Agency and the City in this

right or remedy against Guarantor or any
other Person provided by law,in equity or under any other agreement or instrument and all such
rights and remedies may be exercised singly or concurrently. No delay or omission by the Agency or
the City in exercising any such right or remedy shall operate as a waiver thereof.No waiver of any
right or remedy hereunder shall be deemed made by the Agency or the City unless in writing and
shall apply only to the particular instance specified therein and shall not impair the further exercise of
such right or remedy or of any other right orremedy of the Agency or the City, and no
single or
partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or of
any other right
Guarantee are

cumulative

and are not exclusive of any

or remedy. 12.
If any provision

other

Guarantee or any portion thereof is declared or

found by a court of competent jurisdiction to be unenforceable or null and void, such
provision or portion thereof shall be deemed stricken and severed from this Guarantee, and the
remaining provisions and portions thereof shall continue in full
of

this

inure solely to the benefit of the Agency and the City, or

the City or any other Person which succeeds to the rights of

13.This Guarantee shall

instrumentality of

or

any
the
Agency
or
City
under the Ground Lease and in accordance with the terms thereof, and shall
the
the
be binding solely upon Guarantor, his successors, assigns, heirs,administrators and
personal
Agency

shall be governed by and construed in accordance with the

laws of the State ofPlorida (without regard to principles of conflicts oflaw) applicable to
agreements made and to be wholly performed within the
representatives. 14.
This Guarantee

with the

Agency

State ofPlorida.15.This Guarantee shall constitute the entire agreement of Guarantor

respect to the subject matter hereof. This Guarantee may not

and the City with

be modified

or amended, except by an agreement in writing

the parties

hereto.

1~:
In order o
.induce
~

executed by

all of

the Agency and the City to enter

into this Guarantee, Guarantor representS and warrants to the Agency and the City that as
of

the date hereof: i)This Guarantee

constitutes a

valid and

binding

obligation of Guarantor enforceable against Guarantor in accordance with. its

subject to any bankruptcy,insolvency, reorganization,
terms (
receivership,. moratorium or similar laws affecting the rights and remedies of creditors
generally, and subject to the effect of general principles of equity, whether applied by
a court
of

law

or

ii)
equity);
Guarantor' s execution and performance of this Guarantee

or violation of,or default under, any Requirements (

as such term is defined in the Ground Lease), applicable to
Guarantor or any agreement, order,commitment, judgment, or decree by

will

which

not

result

breach

Guarantor is an Affiliate of Developer by virtue

iii)
of Guarantor' s ownership interest in and voting control of the corporate

Guarantor is

general
of

in a

bound;

partner

the Developer; and iv)Guarantor is solvent and will

not

be

rendered insolvent

by

Guarantee. 17.Whenever it is provided herein that notice,

demand, request,consent, approval or other communication shall or may be given to,or served upon, either of the
parties by the other, or whenever either of the parties desires to give or serve upon the
other any notice, demand request,consent, approval or other communication with respect hereto,
referred to in
this
each such notice, demand, request,consent, approval or other communication ( herein
" shall be in writing and shall be effective for any purpose only if given
Section 17 as a Notice")
Mail, postage prepaid,return receipt requested, (
S.
or served by ( i)
certified or registered U.
reason of this

receipt or (ill) a recognized national courier service, addressed as follows (or to such other addresses
as a party may direct by a Notice to the other party hereto; provided, however, that the number of
parties to receive such Notice, together with copies thereof, shall not be increased):
if to Guarantor:

R.Donahue Peebles
100 S. E.
Second

Street
Suite 4650
Miami, FL 33131 with

copy to:

Holland Knight
&,
LLP 701
Brickell Avenue
30th

Attn:Stuart K.Hoffinan,

Floor Miami,

Esq.if

FL 33131

to the

Agency:Miami Beach

Redevelopment Agency
1700 Convention Center
Drive 4th Floor
Miami

Beach,

Florida 3313.

9 Attn:Executive

Director

with a copies

to:Miami

Beach Redevelopment Agency

Convention Center

1700

Drive

4th

Floor

Miami Beach,

FL
33139 Attn:
General

Brickell Avenue Suite

700

Minsker 1401
Counsel and Bloom &,

Miami, FL 33131 Attn: Joel

N.
Minsker,P.
A.if
to the City:
City

of Miami

with

copies to:

City of Miami Beach, Florida

1700 Convention Center
Drive 4th

Floor Miami Beach,

FL

33139 Attn:

City

Attorney

and

Bloom Minsker
&

1401
Brickell Avenue
Suite

700 Miami, FL 33131 Attn:

Any Notice may.be given, in the manner provided in this Section, on

Joel N.
Minsker, P.A.
behalf of any party by such PartY' s'attorneys as designed by such party by Notice

hereunder. Every Notice shall

or on the

be effective on the
date
thereof is

date

refused by the recipient thereof.18.The

of this Guar nte shall constitute their acceptance of

shall

actually

received, as indicated on the

receipt

therefor

delivery

acceptance

by the Agency and the City

t:
he terms and provisions hereof.19.This Guarantee shall terminate, and Guarantor
released from any and all further oblig~tions and liabilities hereunder, at the earlier

be
time as the Completion Obligation h8s been performed ( except as
of a)such(
in Section 9 or Section 10 hereof),or b)
such time as neither the Agency nor the City
own the fee simple title to the Land. 20.From

and

after

the

otherwise

provided

date of the Guarantee,

and for so long as

this Guarantee is in effect, the Guarantor shall

financial
of the Guarantor available for inspection by duly authorized representatives of the
Agency and the City on an annual basis, and shall advise the Agency and the City, in
writing, of any material adverse change in the financial condition of the Guarantor, promptly,
as soon as such change becomes known to Guarantor, including, but not limited to,
material adverse changes as reflected on such personal financial statements. Whenever financial statements are
the Agency and the City pursuant to
required to be made available for inspection by
this Section 20, such personal financial statements shall be made available at
make updated personal

statements

location

within Dade County, Florida, during normal

business

hours. 21. Guarantor hereby agrees

that time is of
the essence in

of

Default. Guarantor shall be

in

the performance of his obligations under this Guarantee. 22.Events

default under this Guarantee

a)

the

Project is not Finally Complete by the Completion Deadline;

or

b) breach of any material representation,warranty or covenant contained herein,including,

but not limited to, failure to make available the financial statements or to advise the Agency or the
City of any material adverse change in the financial condition of the Guarantor in accordance with
20

Section
or

hereof;

c)
death,insolvency, business failure,appointment of a receiver of any part of the

assignment for the benefit of creditors by,or the commencement of any proceeding under
of,
any State or Federal bankruptcy or insolvency laws by or against Guarantor;

property

upon entry of any monetary judgment or the assessmentand/ or filing of any tax
d)
lien,and/ or the issuance of any writ or garnishment or attachment against any property of,
debts due
or

or rights of a Guarantor,and/ or commencement of any action or proceeding to

assets of a
G~ t9r, against Guarantor in any amount in excess of $

seize

moneys

or

50,
000.Notwithstanding anything to the contrary contained herein, in the event of
any default described in
subsections ( b),
c) (or d)
(
of
this Section 22,
the Guarantor and/
or
the Developer shall have the right to cure any default under such subsections by delivering to the Agency
and the
City within fifteen (15)calendar days of the receipt of written notice of such default
from the Agency or the City,a substitute completion guarantee (the "Substitute Guarantee") from
a person or business entity having a minimum net worth at least equal to the net worth of the Guarantor as
of the date of this Completion' Guarantee. Such Substitute Guarantee shall contain the
same provisions as this Completion Ouaranty and shall be modified only insofar as may be necessary in
the event that the guarantor thereunder is a business entity,such as a corporation,
partnership or limited liability partnership. The acceptance of such Substitute Guaranty shall be in the
reasonable discretion of the
Agency

law

between

and the City. 23.The Agency and the City may avail themselves of all remedies at

or in equity

This Guarantee represents the entire agreement

to remedy any default hereunder. 24.
the parties, and no waivers or modifications shall be valid unless they given in writing, signed

by

the

party to be charged thereby, and expressly approved in writing by a duly authorized officer

of

the

Agency or

the City.EXECUTED as of the

day and year

PEEBLES, a

first above

written.R DONAHUE

STATE OF FLORIDA
55:
COUNTY OF
DADE On

day
the _

personally appeared before me,

of 1998,
.
who
is
_
known
the
to me personally to be the person
who is subscribed to the
within instrument _who produced
a valid drivers
and
acknowl
e
dged
to me that he executed the within instrument in the space provided above
license
this
_
on
undersigned authority,R.
DONAHUE PEEBLES,

day of 1998.NOTARY
,
PUBLIC,
STATE OF FLORIDA

My

commission
expires:

A.ftOUVL....

EXHIBIT

3.

PRELIMINARY
a)
1(

PLANS
-

Al.07

08 A1.09
A1.
041.10 Al.

11 A1.
12 A1. 13 A1.14A1. 15 A1.

16
NOTE:

L
YltS1)

L
s1)

DRAYNlGS
All.

ARE

DAltO AUGUST 25, 1997

OTHERMSE
NOlEO ADIlENDUM '
10-2797 ISSUED

UNLESS
e

A SEP

AFlER 8-

SURVEY 80UNDARY
CIVIL 0-

Silt

ARA It
2597
SlIRI,(
Y
01ClW, DEMaJTTai
PlAN

ROYAL

PALW IIECHANICAL
FLOOR PLAN SHlmCREST ElEVATOR

IIACHINE

RDOIIROYALPALW
ELEVATOR
ROOIIS-HORECREST
MACHINE
LEI,(L ROOF
PALW A2.
11 PARKING
A2.12
PARIONGLEI,(
1.2.
L
GROUND
LEVEL1.

ROYAL

AS

LEVE1.

PACKAGE

13
2.

LE\
16
2.

C01
18
GRAll NG " DRAINAGE
PLAN

PlAN C02 U11UTY SERVICES

LANDSCAPE Ul IRRlGAlION

PLAN " DETAIlS

LL- l
PA\ lNG
PRESERVATION RPPLANS RPELEVAllONS RP
RP HP- 2
ElEVAlIONS RP
W: VAlIONS
ROYAL PALII

LP-l PLANlING PLAN

UGHlING PlAN LH-l
PlAN LH-2 DETAILS HISTORIC
Ol ROYAL PALM DEMOUllON FLOOR
02 ROYAL PALM DEMaJlION
HP- 1ROYAL PALM FLOORPLAN
ROYAL PALW INTERIOR
HP-3ROYAL
PALMEXltRIOR
RP HP-4
RmECltO CElUNG PLAN SC-

Dl SHORECREST
DEMClJTTai FLOOR
PlANS SCD2
SHORECMST
0EIla.
J11ON
ELEVA
liONS
SC
HPl SHORECREST
FLOOR PLAN
SC
HP2
SHORECREST

IN1ERlOR
ELEVA
liONS SC
HP-

3 SHORECRESTEXTERIOR ELEVAlIONS SC
HP- 4SHORECREST REFLECltD . CEIUNG PLAN
LIFE SAFETY ..LSC- O LSC3
l LSC- 2 LSCLSC-4 LSC-5 LSC6
LSC-7 LSC- 8
LSC9 LSC-l0 LSC- l1
LSC- 12LSC- 13 LSC14 LSC- 15 LSC-16
19
LSC- 17LSC- 1S LSCPRARAMElERS
GENERAL Uf' E SAfETY
P
A
R
K
I
N
G
PARKING
LEI,(L FLOOR
PlAN(EST)
\
LEVEL
flOOR
PlAN( EAST) GROUND LEVEL
FLOOR PLAN( WES1)
LEVEL FLOOR PLAN( EAST) SECOND
L FLOOR
PLAN~\\[
ST)
LEI,(
PLAN
SECOND me.FLOOR
EAST)THIRD LEI,( L FLOOR
THIRD
LEVEL
PLAN( 51)
FOURTH LEI,(
FLOOR
PLAN(EAST)

2.19
1.
FOURTH
1.
AFTH

LEVEL

SIXTH
2.
LEVEL
25 ~

01

A1.
02
A1.

03
A1.

04
A1.

05

A1.
06

PARlIAl
AFTH
LEVEL FRANING
PLAN
PARl1Al
FIFTH
LEVEl FRANING
PLAN SIXTH LEI,(
L
FRAMINGPLAN ROYAl PAUl
SIXTH LEVEL
FRAMINGPLAN SHORECREST
SEVENTHLEVEL
FRAIING PLANROYAl

FOURTH LEVE1.
2.
20
LEI,(L
2.
21
LEI,(L
1.
2.
22 Af1lI
A2.23
LEVEL 1.
24 SIXTH
1.
2.
lH LEVEL
A2.26
5E' t{

lENTH LEVEL 1.
32 lENTHLEI,(
1.
2.
33
LE\'
EL A2.34
EL A2.
LE\'
SllCTEENTH LEI,(
L
2.
36 SllCTEENTH LE\'
A2.37
LEVEL( 17)
A2.38 MECHANICAl. LEVEL(

ELEVENTH
35
1.
EL
MECHANICAl.

GARDEN
A5.

CROSS
A

SEClION AA5. 20

CROSS

SEClION D-

AS.21
FF

1.

A2. 31
2.
ELEVENTH

SOUTH
YES

21
CROSS

SEC110N

E-

A5.

1.

18
ROOF

SCHEDULE
A4.

DOOR
DOOR
09

A4.
A4.
4.
A4.
01
liONS
03
NORTH
SOUTH

l0
WEST

PAUl
A5.

A2.39 MECHANICAL LEVELp8

2.
40 MECHANICAl. LEVEL
2. 41
1.
LEVEL
A2.42 ROOF LEI,(
M. OlDOOR SCHEDULE
02 DOOR
M.03 DOOR SCHEDULE
04 DOOR
SCHEDULE A4.05 DOOR
4.
06
SCHEDULE 4.
07
SCHEDULE A4. 08
DOOR
SCHEDULEA4.
DOOR
SCHEDULEA4.
10 OOOR SCHEDULE
DOOR
11
SCHEDULE
12 DOOR SCHEDULE
13 DOOR SCHEDULE4.
14DOOR SCHEDULE
21 LOUVER
SCHEDULEAS.
W
AS.
02 NORTH SHORECREST AS.
SOUTH SHORECREST AS.04
ROYAL PAUl A5.05
ROYAL PAI. Il AS.
EAST W:VAlION AS.11
ELEVAllON A5. 12 NORTH ROYAL
A5. 13NORTH ROYAL PAI. Il
14 SOUTHROYAL PALW AS.

E/

22 ROYAl PAI. Il UlNGlnJDINAl A5.

23SHlmCREST LONGllUlllNAl
A5.
24 CROSS SEClION
AA
AS.
25 CROSS SEClION
88 5.
26CROSS SEClION CC A5.27CROSS SEClION 00A5. 28 ROYAl PAUl LONGITUDINAl
A5.29 ROYAL PAIJj LONGITUDINAl
5.
30 SHlmCREST LONGll\ JDINAl
A5.31 SHDRECREST LONGll\ JDINAL
5.
32 SHDRECREST WAll. SEClIONS
AS.33 SHDRECREST NORTH ENTRANCE AS.
34 SHDRECREST WAlL SEClIONS AS.
EV.TD\\
35 GARDEN SUllt D.
CROSS SEClI<
ER
SEClIONAS. 36 COURTYARD
SUlltS
Jol AS.37 GARolI
CREST WALL
STAlRJIl AS. 38 SH
PAIJj
AS.39 ROYAl
SE ONS
ROYAl PAUl
WAlL SEClIONS AS.40
ROYAL PAUl
WAll. SEClIONS A5.41
WAll. SEClIONS AS.42
ROYAl PAI.
Il WAll. SEClIONS A5.
43
A5.44
ROYAl PAUlPOOL BAR CANOPY
BAR
ROYAl PAI. Il POOL
f7 A5.50
45ROYAl PAI.Il STAIR
CANOPYA5.
l1lNDOW TYPES AS.51 . NDOW
TYPES AS.52 l1NDOW NPES

PlAN

17j

SUI
20

AS.

27EIGHTH LE\fi.
2.
28
LEI,(
L
29 NINTH LEVE1.
30 NINTHLEVEL
2.

NORTH
SHORECREST
18
SHORECREST
19

CROS SEClION

2.
1.
EIGHTH
A2.
1.

SCHEDULE

PLAN PARlIAl
THIRD LEVEL FRAMING PLAN PARlIAl
FOURTH
FRANING
LEVEL
PLAN P"
ARlIAl FOURlH
LEVEL
FRANING
PLAN

1HlRO

SOUTHROYAL
PAUl
16 NOR
GARDEN SUITES A5.

AS.
SOUTH
5.

17

LEVEL 1.

L
M.

AND
SPECIFICATIONS AO.
01
AO.
l0
A1.

14
GROUNDLEVEL
A2. 15SECOtIl
fi.
A2.
SECOND LEVE1.
17
LEI,(
L
1.
2.
1HlRO
LEVEL1.

AS.
TH

NlH

GROUND

FRAMING

15

FLOOR PLAN(
FOURTH
LEVELFLOOR
PLAN( EAS1)
FIFTH LEI,(
FLOOR
PLAN(llt:
FIFTH LEI,(
PLAN(
L
FLOOR
EAST) SIXTEENTH
LEVEL FLOOR
PLANIYltS1)
SIXTEENTHLEVE1.
FLOOR
PLANEAST)
I ECHANICAlFLOOR
.
PLAN -

A6. 21DETAILS

24
046.22 DETAIlS A6. 23DETAILS A6.
A7.10
DETAIlS A6.25 DETAILS
STAIR
DETAILS A7.11
STAIR ~
NPES A8.
DETAILS A8.01 WAlL
WAlL
WALL
NPES
A8.
03
02
DETAILS A8.
NPES A8.10 RAlUNG
5011 ROOF DETAILS STRUCTURAL
1 51-1 SI2 SI- 3 514 Sl-5 51- 6
9
51-10
51- 8 51517
12 51-13 S1- 14
11Sl5115 51-16 S1- 17 5151PAR1IAL
18 GENERAl. NOTESolE INDEX TO DRAYNlGS
LEI,(
L
PARKING LEI,(L FOUNOAlION PLAN PARTAIL PARKING
FIlAUING
l.
FOUNDAlION PLAN PARl1Al GROUND Lf\{

LE\
L PLAN
PARlIAl GROUND FRAMING
FRAIIING
PAR1IAL SECOND LEVEL
PLAN PARlIAL SECOND LEVEL FRAlltNG
LEVEL
PARl
I
A
l
T
HI
R
D
PLAN

SHORECREST
FRAMING
PLAN ltNTH
PALM

LEVEL
EIGHTH LEVEL FRAIlING PLAN ROYAl
- PALM EIGHTH
PLAN - SHORECRE5T NINTH LEVEL FRAIlING
ROYAl PAUl NINTH LEVEL FRAMINGPLAN - SHORECMST
LE\
L FRAMING
lENTH LEVEL FRAMING
D.
EVENTH LE\

ROYAl
PLAN
PLAN
SHORECREST
fi.
FRAlI1NG

PLAN - ROYAl PAI.Il

ELEVENTH LEVEL

ELEVA

FRAMING

PLAN SHORECMST l\\

ElJTH LEVEL
FRAMING PLANROYAl
PAI.Il

PALW SEVENTHLEVEL
FRAI8NG PLAN -

tIEl. FTH LEVEL

l'

FRAII1NG

EXHIBIT

3.

PLANS

a)
PRELIMINARY
1(

AND

PLANS RP

SPECIFICATIONS

t MECHANICAL
111.01 PARTAIL
lEL MECH. PLAN -WEST
PARTIAL PARKING LEIIEL IIECH.
111.03 PARTIAL GROIlND
PLAN -WEST 111. 04
FLOOR IIECH. PLAN -EAST

THRU
EAST
PARTIAL
111.

EAST

llECH. PLAN -

PARKING
111.
PLAN FLOOR
PARTIAL
111.

LE'
02
EAST
MECH.
GROIlND
05

WEST
PARTIAL SECOND FLOCR IIECH. PLAN MECH.
111.06 PARTIAL SECOND FLOCR
THIRD
PLAN -EAST 111. 07 PARTAlL
08
FLOOR lIECH. PLAN -WEST 111.
EAST
PARTIAL TllIRD FLOOR IlECH. PLAN MECH.
111.09 PARTIAL FOURTH FlOOR
FLOOR
PLAN -WEST 111. 1 0 PARTIAL FOURTH
FLOOR
MECH. PLAN - EAST 111.11 PARTIAL nFTH
FLOOR
IIECH. PLAN -IllEST 111.12 PARTAIL nnH
TllRU
IIECH. PLAN -EAST 111.13 PARTIAL SlXTll
111.
SEVENTH FLOOR IIECH. PLAN - IllEST
FLOOR
14 PARTIAL SlXTll TllRU SEVENTH
EIGiTH
MECH. PLAN -EAST 111. 15 PARTIAL
THRU SlXJEENTll FLOOR MECH. PLAN - IllEST
EIGiTH
111. 16 PARTIAL
PLAN SlXJEENTH FLOOR MECH.
17
111.
WEST
SEVENTEENTH FlOOR MECH. PLAN 18 PARTIAL SEVENTEENTH flOOR MECH. PLAN 111. 19 PARTIAL E1GHlEENTH FLOOR MECH.
PLAN - WEST 111. 20
PARTIAL EIGHlEENTH FLOOR

EAST 111. 21ROOF

MECHANICAL PLAN -VtEST

Ml.
01
PLANT
PLANT
AND
SCHEDULES

22 ROOF MECHANICAL PLAN -EAST

MECHANICAL DETAILS M4.01 SHORECREST
MECHANICAL SCHEDULE M4.02ROYAL PALlI
MECHANICAL SCHEDULE 114. OJ AHU,
FCU MECHANICAL SCHEDULES 114. 04
AND NOlES 114. 05 DIFFUSERS

M3.
CHIllER

LEGEND lIS.
HVAC
LEVEL
PARKING LEIIEL
FLOOR
PARTIAL
05
PARTIAL
THIRD

Ol HVAC CONTROl. N91ES . 115.

02
PARKING
CONTROl. NOlES E1.01 PARTAlL
ElEe. PLAN -WEST El. 02
PARTIAL
GROUND
ELEe. PlAN -EAST EloOJ PARTIAL
EC.
El.
04
El.
PLAN -WEST
GROUND FLOOR ELEe. PlAN -EAST
El.
PARTIAL SECOND
FLOORELEC.
PLAN -WEST El. 06
PARTAIL
SECOND FLOOR ELEC. PlAN -EAST El.D7
PARTIAL
FLOOR ELEe. PLAN - WEST El. 08

THIRD
FOURTll
FOURTl

FLOOR ELEe..PLAN - EAST E1. 09

CHIllER
RTU

El.
ELEe.
lHRU
EIGHTll

SE'
SEVENlEENTH
EIGHTEENTH
PARTIAL

FLOOR
14 PARTIAL SIXTH TllRiJ SEVENTH
EIGHTH
PLAN -EAST El.15 PARTIAL
16
PARTIAL
SIXTEENTH ELEC. PLAN -VtEST El.
PARTIAL
THRU SIXTEENTH ELEe. PLAN -EASTEl.17
PARTIAL
PLAN
WEST
E1.
18
IENlEEIlTH
FLOORELEC.
19
PARTIAL
FLOOR
ELEC.PLAN - EAST El.
FLOOR ELEC. PlAN -WEST El. 20
El.
EIGHTEENTH FlOOR ELEC. PLAN -EAST

03

SHORECREST

lYPlCAL
GUESTROOIl

LIGHTING

LEVEL

LIGHTING

03
PLAN P

E2.
PLAN EAST
PARTIAL GROIlND FLOOR L1GHnNG
WEST E2.04
ARTlAL GROUND FLOOR

E2.

L1GHnNG

PLAN -EAST

05
FlOOR L1GHTlNG
06
FlOOR LIGHTING
07
LIGHTING

PARTAlL SEC() ID
PLAN -WEST
E2.
PARTIAL SEC() ID
E2.
PLAN -EAST
FLOOR
PARTIAL THIRD
E2.
PLAN -WEST

06

PARTIAL lHlRD

LIGHTING PLAN -

FLOOR

EASTE3. 01 ROYAL PAUl TYPICAL GUESTROOI.

FPlo09
13

LEVEl.
ELEC.
PLAN

FP1.11 FP1. 12 FP1.

FP1. 15 FP1. 16

FP1.10
FP1.14

FP1.17FP1.18 FP1.19
20 FP1.21 FP1. 22 FP2.
PARTIAL PARKING LE' JElPLUlI8ING
PLAN !!PARTIAL PARKING LE'

E4.

oo
ELECTRICAL

JElP1.

RISER DIAGRAM
E4.

GROIlND FLOOR
PLUIIBING PLAN
lEST)PARTIAL
EAST)PARTIAL

01

FIRE
ALARM

PARTIAL

RISER
DIAGRAM
E4.
02
TaEPHONE
RISER
DIAGRAM
E4.
03
TV

YtEST
SECONDFLOOR
FLOOR
FLOOR

PARTIAL GROUND

FLOOR
PLUII8ING PLAN ( 1'
PLUIIBING PLAN (
PlUIlBlNG PLAN ( WEsn

THIRDFLO R PLUMBING

E1GHlEENTH
FLOORPLUI BlNG
YI{ ST)ROOf

SC LOBBY - AR, EL
ok FF
PLANS SC
LOBBY -FC ok

RP
UPPER

PLANS RP
BANQUET ROOM -

FC I<
RESTROOIlS -

PLAN (

PLAN (EAST) ROOF PWMBING

PWIIBING PLANEAST)
PI.UUBING
(

E5.
01
PANEL
SCHEDULES ELECTRICAL

DETAIlS c!
t NOJES PARTIAL PARKING
LE'IEL nRE PROJECTION PLAN (~S
PARTIAL PARKING LE' IEL
F1RE PROJECTION PLAN ( EAS

E5.

PARTIAL GROUND FLOOR FIRE PROJECTION

PLAN (

PROJECTIONPLANW
( EST) PARTIAL SE'
lENTEENTll FLOOR Pl.UlBlNG PLAN (EAST)PARTIAL
PLUllBING PLAN ( EAST)ROOF PLUMBING PLAN (
EIGHTEENTH FLOOR PLUllBING PLAN (YIEST) PARTIALEIGHTE NTH FLOOR
AIIl NOTESINTERIOR DESIGN IDWEST)ROOF PLUIIllING PLAN (EASn nREPROJECTION DETAILS
PN101 ID- PN102 1O-PN1OJ ID-PN1 0 ID- PN111
ID- PN210
IO-PN200 IOPN201
IO- PN202
1O- PN4Q1ID- PS100 IOIO-PN211 IOPN400
PS101 1O- PS102 ID- PS1tD
IO- P100 ID-Pl01 ID- Pll0
ID-PS111 IDPS112
l00 10- 101
tD-Pl20 lDID-PRloo ID-PR101 ID- PRl02
PR202 ID-PR203
PROTECTION ID- PR2DO ID-PR201 IDPRJOl IDPNlOO ID1O-PR3QO IDG2DO IDFLOOR
G201ID- G202 ID-G20 IDGN400 1O- GS400 S'IBO. S LEGEND
SHEET flNSH SCHEDULEc!t ROOIl MAlRIX
PROJECTION
EX. RP
LOBBY,
EAST m~ DECO
~ BAR c!
t

Ex.
OfFICES - AR.EL c!t FF PLANS
g: g ~
RP LOBBY,
~ ~~DECO
BAR c! t OfFICES - FC
gg:: ~~ ~~g~~~~

PARTIAL
FLOOR
PROJECTION
1'
PARTIAL

THIRD
nRE
PLAN (
lEST)
THIRD

c!t RC PLANS EX. RP LOBBY. DECO BAR c!

t OfFICES - ELEVATIONS EX. RP
CONFERENCE CENJER EX.
AR. EL "
FF PLANS
RP CONFERENCE CENlER - FC.c!t RC PLANS
EX.
RP CONFERENCE CENlER - ELEVATIONS
EX.RP
CONFERENCE CENlERAR,- EL

ARE
FLOOR
(
PROJECTION PLANEAST)

c!t FF PLANS
RP GUEST Roal CORRIDOR -

PARTIAL FOURTll
flOOR FIRE
PROJECTION PlAN (
I' lESn PARTIAL
FOURTll flOOR
ARE PROJECTION

ROOM CORRIDOR - ELEVATIONS RP PREFUNCTlON

RP GUEST
ARf. A. BANQUET ROOItI c!t
ELEV. LOB8Y - AR,
RP
EL &FF PLANS
PREFUNCTlON ARf.A. BANQUET ROOItI c!
t ELEV. LOBBY -FC

PLAN (
PARTIAl.
FLOOR
PROTECTION

EAST)
F1FTIf
FIRE
PLAN ~~

PLANS

EX.

PLANS

EX.

RC
c!
t
PLANS RP
PREFUNCTlON
ARf.A. BANQUET ROOItI c! t
ElEV. LOBBY ELEVATIONS RP

ELEVATIONS RP EXCERCISE
t POOl. 8AR BREEZEWAY" POOL
EXCERClSE

PLAN (~ PARTIALEIGHTH
FLOOR nRE
PROTECTlON PLAN (

BANOIlET ROOIl
BREEZEWAY c!
PLANS RP

EAsT) PARTIAL
SE'
lENlEENTH
FLOOR ARE

BAR -ELEVATIONSok DETAILS RP

RESTAURANT I<
ELEV. LlJIBY All. EL I<
FF

RC RP PREPLANS PUBUC RESTRO IlS-EL VATIONS ELEVATOR

ELEVATIONS
DETAILS

DETAILS
\
PUBLIC AREAS -lISC.

FLOOR FIRE
PROJECTION PLAN
PARTIAL SIX1li
FLOOR ARE PROJECTION
PLAN PARTIAL
SIX1li FLOOR
ARE
PROJECTION
PLAN EASPARTIAL
EIGHTH FLOOR

ARE

RC

SC LOBBY - ELEVATIONS
RP BANQUET ROOM -

CABS PLANS,
ok

PARTIAL FIFTH

GROUND

LllIllY -

UPPER
POOl.
lERRACE
c!
t
POOl.
GRill PLANS

PARTIAL
PLAN ~

nRE

RP

lERRACE .
POOl.GRill -EL VATIONSc! t
DETAILS RP
GUEST ROOIl
CORRIDOR - PLANS
RP GUEST ROOM
CORRIDOR - ELEVATIONS. DETAILS

POOl.

U\
181NGPLAN PARTIAL

PlUMBINGPLAN
(EAST)PARTIAL
SECOND
THIRD

ELEV. LlJIBY RC

FP1.
01

EAST)PARTIAL FOURlH FLOOR PLUMBING PLAN ( VtfiT)

EAST) PARTIAL
PARTIAL FOIlRlH FLOOR PLUMBING PLAN (
FIFTH FLOOR PLUMBlNG PLAN ~~PARTIAL FIFTH FLOORPLUMBING
PLAN E PARTIAL SlXTll FLOOR PLUMBING PLAN
WES PARTIALSlXTll FLOOR PLUllBlNG PLAN PARTIAL
EIGHTH FLOOR PLUllBlNG PLAN ( I'
lESn
PARTIAL EIGHTHFLOOR PWMBlNG PLAN ( EAST)PARTIAL
SE'lENJEENTHFLOOR PWM8ING PLAN ( lllEsn PARTIAL SE'
lENlEENTH FLOOR PWMBING PLAN ( EAST)PARTIAL
lEST) PARTIAL
E1GHlEENTH FLOOR PLUMBING PLAN ( 1'

RISER
DIAGRAM

PLAN
22 ROOf ELECTRICAL
WESTEl.
ROOF ELECTRICAL PLAN PLAN -EAST E2.01 PARTIAL PARKING LEVEL
02 PARTIAL PARKING
E2.
PLAN VlEST
-

21

RESTAURANT.
FC "
PLANS
RESTAURANT.
ELEV.
ELEVATIONS
RP

Pl.
06 Pl.07 Pl. 06
Pl.
09 P1.10 PUl P1.
12 P1. 13 Pl.
14
PU5 PU6 Pl.17 PU8 PUg
Pl.
20 P1.21 P1. 22
P4.01 FPl.Ol FPl.
02 FPl. 03 FP1.04 FP1.05
FP1.06 FP1. 07 FP1. 08

GUESTROOIl
LEVEL
ELEC.
PLAN
E3.

FANS
AND

PARTIAL
PARTIAL
FLOOR ELEC.PLAN - WEST El. l0
FLOOR ELEC.PLAN -EAST El. 11
El.
FIFTH FLOOR ELEC. PbAN - IllEST
EAST
PARTAlL FIFTH FLOOR ELEe. PLAN 13 PARTIAL SIXTH
THRlfSE'
FLOOR ELEe.PLAN - WEST

PARTIAL
12
El.
lENTH

t ~
SCHEDUlESE-LECTRICAL E5. OJ PANEL
02 PANEL
L
SCHEDUlES - ELECTRICAL
E5.04 PANELSCHEDULES - ELECTRICAL E5.
ELEC.PLAN
D5 PANEl SCHEDULES - ELECTRICAL E5. 06
0.
PANEL SCHEDULES - ELECTRICAL E5.07 PANEL
02
SCHEDULES - ELECTRICAL E5.08 PANEL SCHEDULES - ELECTRICAL
GARDEN
NOlES AND
ES.l0 SYIIBOl. S,
01 Pl.
SUIJES
UGHTlNG FIXTURE SCHEDUlES PI.
04 Plo05
02 PI.OJ PI.
TYPICAL

FUNCTION AREA PUBUC

EXnl!~ jL,
5 (a

N1

tNI~WlmN@f.
BUDGET rMMi%}

3~

D~
)VELOP

WW#
l**

if-

tmA}
j,*~.
f~~
I!:
i~~ f.
30-Apr98
t(;.
Royal Palm Crowne

i~~
tiMj@t.!
miiWWM%

Plaza

Bldg. New BuildIng

Fee

of Months
of Construction
Development Cost Budget Combined
Total Number of Keys Number

Original

422

Subtotal
Totallnterut

Total 17

FAR Sa.

Ft 82,
590 235.512 318,102 Parking Land
I existing

Building -Hard Costs

Hotel, New Construction

and

Renovation Incl.

eond

Abatement

Asbestos

Hard Cost Contingency

Total Hard
Costs: below)Soft
Costs
Architects & Engineers

SuDdlng Permit
Fees, Etc.
Threshold Inspections
Real Estate Taxes
Insurance FF&
E RecordlngITransfer Fees

Legal Accounting
&
rltfe

Insurance Lender Inspection

Fees Technical
Consultant CP Construction
Manager Financing
Fees Pre Award
Bid ExpendltLlres

Preopening Expensu

Project

Management
Fee Leasing
Commission Total Soft
Costs:Subtotal Hard
&
(

Soft Costs):
Interest Contingency Development

and Fees:

Development Costs:

b) -DEVELOPER' S FEE
8(

3.

EXHIBIT

DISBURSEMENT
I

III

! ; . ~AN LYSI

Q.
g~

II

8-

I II)

I i!! I
I ~

a$

151

II . g ~

I!

II

I~

I~

I II!

a-

a.

Ii

II

IS
I
in
II!
I
a

II! II

I
I II!
I.~ I!
i!; u
i! 1
I ! Ii
I ~ill I~

I~

lei

i! g ~~.
I! g ~ I
1m I. ~ I
In

I~ g ~

II!

la ;

I
III I

I
i

1:

tI

IIi
i

sa

1lI I

II 11"
I ~ III

f-~"

.!!

u ~!

i9. .!

I!

1<< I
J1i~

I; ~

III ;

M
U.
1:

I~"

1&
"

J
i

11 ..

J.

i
il

Jllli

1i.I Iii

I~

1
I

J~!

extf''' 1T

3.
d)
Mpesto~ Percent
Contingency

Required

and

8(

Commencement of

Undiabursed the

Required

Contingency efcentaQe" ) 1

Construction 100%2)
Compfetion of

85%
of

the Buy Out (defined as executed contracts for the

hard costs construction

trade

line

items

the development budget) on budget. 75%

Topping Out (
3)
as
compJet
i
o
n
of
of
the
pouring
tne
top
defined

of

floor of the new tower)of the structure.

4)
65%
Completing the building exclosure (defined as making
the building weather tight through the completion

the

of the roofing and exterior facades of

bu"ding). 55%
5)50%
completion of the

interior framing and

sheetrocking

ned as construction of partitions including

d.~

45%6)
studs and GWB { gypsum waif board]).

100%completion of

7)
the imerior framing and sheetrocking. 35%
Start- up of aU air8)
conditio. nin;systems. 25%
of rooms are ready for
50%

punchfist ( defined as list

of

to b.
Available

"'

Exhibit

6.

3(
Jt)
FEES
BUILDING

PERMIT
Alterations & repairs
Awnings &
canopies Concrete slab other
(
than paving)Demolition
of building Elevator
hoistway constructionFence and/

or
walls Landscaping Newbuilding and/
or additions New
building
other
ting Parking
P~
area
lighting Paving Roofing ( including
reroofing)Signs

Swimming pools Windows, exterior

doors, storefronts &

fixed glass CERTIFICATE

OF OCCUPANCY Certificate
of completion Flnal certificate
of occupancy Temporary certificate
of occupancy ELECTRICAL
PERMIT
FEE Combinations Equipment outlets or
permanent connections Fire
detections
systemsFixtures Generators/transformers, commercial
heating
equipment &
strip heaters Machine outlets or
permanent connectors Master televisions, intercom, burglar
alarm,
telephone &
radio Plummold Rough
wiring

outlets
Services Signs Special purpose
outlets commerci
( al) Streamers or
festoon lights Swiynming
pool
lighting Switchboards Welding
machine outlets

A:\
JNM\

CMB\HllDEV A.
EX2( EXECUT1ON.

MECHANICAL PERMIT FEE

Air conditioning & refrigeration

Amusement rides and devices
Boilers and pressure vessels
Duct work
Elevators, escalators & other lifting apparatus
Furnaces and heating equipment
Internal combustion engines
Storage tanks for flammable liquids

OTHER FEES
Fire processing fees
Interim general and proprietary fees
Marine structure fees
Miami Beach training fees
Parking impact fees
Radon fees

Zoning processing
PLUMBING

PERMITI1NGFEES

Condensate

drains Drainage

Fire
control systems Minimum

plumbing fee per permit Miscellaneous

Natural
gas and liquefied petroleum Rough &
set fixtures Septic/
settling tanks,oil interceptors and grease traps Sewers
Storm &
sanitary
utility and/orcollector lines Temporary
toilets Water
and gas mains Water
heaters (electrical or gas) Water
piping Water/
sewage treatment plants lift/
&
plumbingstations PREMISE
PERMIT Initial
premise
and final
:

JNM\ CMB\

HTLDEVAEX2(

EXECUTION.

permit fee A:\

S2)\

Exhibit

19.

Jl)LIST OF
1(

PROJECT AGREEMENTS Agreement

of Lease Garage
Easement Agreement Convention

Center Agreement

A:\
JNM\CMB\lm.

DEVA.

EX2(