HomeMy WebLinkAboutExhibit Ato the second Option period shall be due upon commencement of the second
Option period until the second Hotel Component reaches its Completion Date.
(d) Upon entering into the Ground Lease for any Hotel Component(s) and prior to
Starting Construction for any such Hotel Component(s), Flagstone shall provide a
Construction Bond to the City for the full amount of the construction cost of any
such Hotel Component(s).
VI. ADDITIONAL AGREEMENTS CONCERNING FLAGSTONE FORFEITURE /
CITY TERMINATION RIGHTS.
(a) If the Marina Component does not Start Construction by 9/01/2013 or both the
Parking/Retail Components do not Start Construction by 9/01/2016, then
Flagstone's rights to build any Components expires and ceases, the Agreement to
Enter is terminated, City retains all Prepaid Construction/Base Rent (as
consideration for the extension of time until 9/1/2013 for the Marina Component
and as consideration for the extension of time until 9/1/2016 for both the
Parking/Retail Components) and Flagstone must turn over to the City
immediately the applicable Ground Lease(s), Flagstone also agrees to waive its
defenses as to failure to begin construction against the City, immediately vacate
and turn over to the City for the City's possession all of Flagstone's rights and
interests in the Property and the easement areas, remove from such easement
areas and from the Property all of its property of whatever kind as requested in
writing by the City Manager, and immediately (i) return or sign over, as
applicable, to the City all of Flagstone's rights, directly or indirectly, in the
permits, plans, specifications, and all related governmental approvals, documents,
instruments, and agreements as necessary related to the Property, and (ii) deliver
to the City all of such permits, plans, specifications, and all related governmental
approvals, documents, instruments, and agreements which are in Flagstone's
possession or in Flagstone's control.
(b) If any Hotel Component does not Start Construction according to the applicable
deadline under the construction schedule and the Option schedule(s) (as
applicable), then Flagstone's rights to build the applicable Hotel Component
expires (but Flagstone's obligations under the payment schedule for the Marina
Component, the Parking/Retail Component, and any Hotel Component that is/are
complying continues to the end of the applicable Ground Lease(s)). Any time
Flagstone loses the right to construct a Hotel(s) Component, then Flagstone must
turn over to the City immediately the applicable Ground Lease(s), Flagstone also
agrees to waive its defenses as to failure to begin construction against the City,
immediately vacate and turn over to the City for the City's possession all of
Flagstone's rights and interests in the applicable Hotel Component, any Hotel
Ground Lease, and the related easement areas, remove from such easement areas
and from the Property all of its property of whatever kind as requested in writing
by the City Manager, and immediately (i) return or sign over, as applicable, to the
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City all of Flagstone's rights, directly or indirectly, in the permits, plans,
specifications, and all related governmental approvals, documents, instruments,
and agreements as necessary related to the applicable Hotel Component, and (ii)
deliver to the City all of such permits, plans, specifications, and all related
governmental approvals, documents, instruments, and agreements which are in
Flagstone's possession or in Flagstone's control.
(c) Subject to Section VII(a), Flagstone may separately ground lease and separately
construct the Marina Component prior to 9/1/2013 if the conditions precedent for
the Marina Component are met
(d) If construction is continuing during the Option period(s), then Flagstone shall pay
both, Construction Rent or Base Rent in accordance with the General Rent
Schedule in Section II above, and the applicable Option payments related to its
choice to construct either one or two Hotel Components.
VII. CROSS DEFAULTS; SEPARATE DEFAULTS.
(a) During the period prior to the earlier of 96 months from 9/01/2010 (being
8/31/2018) or the date upon which the first Hotel is Open for Business, Ground
Leases for the separate Major Project Components shall be cross -defaulted for
any Base Rent payment defaults, Prepaid Construction/Base Rent payment
defaults, and any Construction Rent payment defaults.
(b) After the earlier of 96 months from 9/01/2010 (being 8/31/2018) or the date upon
which the first Hotel is Open for Business, (i) the Base Rent, Percentage Rent,
and all other payments to the City each year thereafter shall be apportioned to
each separate Major Project Component Ground Lease for direct payments to the
City by each separate Ground Lease lessee in an amount reflecting each separate
Major Project Component's respective percentage share of the total Project
Development Costs to that point in time, and (ii) the Ground Leases for the
separate Major Project Components shall not be cross -defaulted for any defaults,
including but not limited to any defaults in payments of Base Rent, Prepaid
Construction Rent/Base Rent, Construction Rent, Percentage Rent, or any other
Rent, with each separate lessee being solely responsible for any payment
default(s) to the City.
(a) Notwithstanding anything to the contrary in this Exhibit A, if the Retail/Parking
Components do not Commence Construction by the 72nd month from 9/01/2010
(being 8/31/2016), then (i) there will be no crediting of Prepaid Construction/Base
Rent, the City shall keep all Prepaid Construction/Base Rent received, (ii) the City
can terminate the Agreement to Enter, all Ground Lease(s), and (iii) the City can
take back the Marina Component, the Retail/Parking Components, any Hotel
Components and the balance of the Project and the Property.,
VIII. STATE WAIVER.
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