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HomeMy WebLinkAboutAmended and Restated Construction Augusta Richmond GA DOCUMENT NAME: Omended. ~ y-e.s-tat-eo LDns\\u~CY) \ DOCUMENT TYPE: eo..~-\- YEAR: Of\ BOX NUMBER: Oe FILE NUMBER: \~ ~3 NUMBER OF PAGES: 6/'7 -f i' ~' '\ AMENDED AND REST A TED CONSTRUCTION, OPERATING AND RECIPROCAL EASEMENT AGREEMENT TI-llS AMENDED AND RESTATED CONSTRUCTION, OPERATING AND RECIPRQCAL EASEMENT AGREEMENT (this "Restated CORE Agreement") is made this -.r2jday ofJune, 199fhy and among Augusta, Georgia (formerly the city Council of Augusta, Georgia) (the "City"); Augusta Riverfront Limited Partnership, a Georgia limited partnership (the "Developer"); and The Downtown Development Authority of the City of Augusta, Georgia (the "Authority"). CapitaliZed terms used herein are defined in Article I hereof. RECITALS Background A. On August 15, 1989, the Developer, the City and the Authority entered into that Construction, Operating and Reciprocal Easement Agreement, which is recorded in the office of the Clerk of Superior Court of Richmond County, Georgia, at Realty Reel 317 , page 184, as amended by the First Amendment to Construction, Operating and Reciprocal Easement Agreement dated July 16, 1990, and recorded at Realty Reel 340, page 2110 aforesaid records (as amended, the "1989 CORE Agreement"). This Restated CORE Agreement supersedes, amends and restates the 1989 Core Agreement. B. The 1989 Core Agreement provided for the construction, development and management of an office building, hotel, conference center, parking facilities and related improvements along the banks of the Savannah River in downtown Augusta, Georgia (collectively the "Project"). Current Ownership C. The Authority owns fee simple title to that property shown as Parcel "P" (which includes Parcels "P- 4", "P-6", "P-7" and "P-8" and the ground under the air rights Parcels "P-l ", "P-2", "P-3",and "P-5") on the Plat. D. The Authority owns fee simple title to air rights Parcels "P-l" and "P-5" on the Plat. E. The Developer owns fee simple title to that property shown as Parcels "Q", "N","N-l", "N-2" and "M", and the air rights parcels "P-2" and "P-3" on the Plat. F. The City owns "Special Use Area, 1999" and "Access Area #1" on the Plat. Current Leases and Operations G. The Authority owns the Existing Conference Center, which is located on the parcel "P-l" on the Plat, and leases it to the City pursuant to the Conference Center Lease. Under the terms of the Conference Center Lease, the City shall purchase the Conference Center at the expiration of the lease term for $100.00. The lease term shall expire when the loan taken to construct the Conference Center is fully satisfied, currently scheduled for no later than July 2012. A;\Amended and R<slated CORE Agreement l19_wpd . 1 REH . ~ .---- J 'T' .- ~'. H. The Developer manages the Conference for the City pursuant to Article 10 of the 1989 Core Agreement. I. The Developer leases Parcels "N", "N-l" and "N-2" to the Authority pursuant to the Ground Lease. J. The Authority owns the Parking Improvements located on Parcel "P", "N", "N-l ", and "N-2" and leases them to the City pursuant to the Parking Improvements Lease. Under the terms of the Parking Improvements Lease, the City shall purchase the Parking Improvements at the expiration of the lease term for $100.00. The lease term shall expire when the bonds issued to construct the Parking Improvements are fully satisfie~,currently scheduled for January 1,2010. . UDAG Loan K. The Existing Hotel, which is owned by the Developer, was financed, in part, by the UDAG Loan to the Developer by the City in the original face principal amount of $7,562,454.00 as evidenced by that UDAG Note. . ~. L. The UDAG Note is secured by a second priority lien covering the Existing Hotel, related personal property and adjacent real estate as more particularly described in that UDAG Security Deed. M. The principal balance of the UDAG Note does not bear interest, and the Developer and the City have agreed that, taking into account the time value of money, a current payment of$3,250,000.00 would satisfy the UDAG Note in full; and the United States Department of Housing and Urban Development concurs with such payoff amount and has consented to the Developer paying off the UDAG Note, as evidenced by the letter attached hereto as Exhibit "A". Conference Center Expansion N. . The parties have determined that the Project would better meet the needs of Augusta, Georgia if the Conference Center is expanded. O. The parties desire that the Developer build an addition to the Conference Center containing approximately 30,000 square feet of additional space on Parcels "P-5", "P-6", "P-7", "Special Use Area, 1999", and "Access Area #1" in accordance with the Preliminary Plans. P. "Special Use Area, 1999"and "Access Area #1 "are currently owned by the City, and the City has agreed to grant easements over said property to the Authority for construction and occupation of the - Conference Center Addition. Q. Parcels "P-S", "P-6" and "P-7" are currel)tly owned by the Authority and leased to the City pursuant to the Parking Improvements Lease, but the Authority and the City have agreed to . amend the Conference Center Lease to include Parcels "P-5", "P-6", "P-7", "Special Use Area, 1999", and "Access Area #1" as part of the demised premises of the Conference Center Lease (and the Parking Improvements Lease would be amended to delete Parcels "P-S", "P-6" and "P-7" therefrom). A:\Amended and Restated CORE Agreement l#9_wpd 2 REH I' I' R. The City desires to fund the construction and furnishing of the Conference Center Addition with the proceeds of the payoff of the UDAG Note and all accrued interest thereon, with the Developer responsible for all costs of construction and furnishings in excess of such amount. S. The City and the Developer desire to deposit the proceeds of the payoff of the UDAG Note with the Escrow Agent and establish procedures for drawing such funds to fund the construction and furnishing of the Conference Center Addition. New Hotel T. The parties have determined that the Project would better meet the needs of Augusta, Georgia if a new appro~imately 140 room hotel is built on the east side of the Project at the sole cost and expense of the Developer. U. The parties desire that the New Hotel be built by the Developer on Parcels "Q", "P-4", and "N-l ". V. The Authority has agreed to convey fee simple title to the Developer to Parcel "P-4" in return for the Developer conveying fee simple title to Parcel "N-2" to the Authority. The value of Parcel "N-2" is equal to the value Parcel "P-4". W. The Authority will retain an easement over parcel "P-4" for access to and from the Parking Improvements and the Expanded Conference Center. The Developer will retain an easement over Parcel ''N-2" for access to and from Parcels "N" and ''N-l ". X. The Ground Lease will be amended to account for the conveyance of Parcel ''N-2" to the Authority and to allow for the construction and support of the New Hotel in the air space over Parcel ''N-l ". The Parking Improvements Lease will be amended to account for the conveyance of Parcels "P-4" and ''N-2'' and to allow for the construction and support of the New Hotel in the air space over Parcel ''N-l ". Y. The City will grant an easement to the Developer over that property designated as Canopy Area on the Plat in order to allow the Developer to construct and maintain a canopy over said property. The canopy shall not impair pedestrian movement along the sidewalk underneath the canopy. Z. The Authority will grant the Developer an easement over Parcel "P_8" for the construction and maintenance of a covered walkway between the New Hotel and the Existing Conference Center and for access between the New Hotel and Existing Conference Center. 1 (fh Street Parking Lot Entrance Renovation AA. In order to enhance the operation of the Parking Improvements and Expanded Conference Center, the City has agreed to add an additional toll booth and renovate the driveway at the 10th 'Street entrance to the Parking Improvements, as shown on the Parking Lot Modification Plan attached hereto as Exhibit "B". Such renovations will be at the City's sole cost and expense, and the City has agreed to commence such renovations prior to commencement of construction of the Conference Center Addition. A:lAmcnded and Rt:stated CORE Agrecmcnlll9_wpd 3 REH i" AGREEMENT In consideration of the premises and the mutual agreements and covenants contained herein, and for other good and valuable consideration, - the receipt of which are hereby acknowledged, the City, the Authority, the Developer and the Escrow Agent, intending to be legally bound, agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. As used in this Restated CORE Agreement, the following terms shall have the following meanings: ' "Architect" shall refer to Nicholas Dickinson & Associates, P.C. "Authority" shall refer to The Downtown Development Authority of the. City of Augusta, Georgia, and its successors and assigns. .'. "CanoDV Area" shall refer to that land, which is owned by the City, designated as the "Canopy Area" on the Plat. "Q!.y" shall refer to Augusta, Georgia. "City Administrator" shall refer to the City Administrator for Augusta, Georgia. "Clerk's Office" shall refer to the Office of the Clerk of Superior Court of Richmond County, Georgia. "Concept Plans" shall refer to the Preliminary Concept Plans for the Conference Center Addition and New Hotel prepared by the Architect for the Developer, which plans were presented to and approved by the City Administrator prior to the execution ofthis-Agreement. "Conference Center Addition" shall refer to that addition to the Existing Conference Center on Parcels "P-5", "P-6", "P-7", "Special Use Area, 1999", and "Access Area #1 "to be constructed in accordance with this Restated CORE Agreement. "Conference Center Lease" shall refer to that Lease Agreement covering the Existing Conference Center dated July 16, 1990, between the Authority as lessor and the City as lessee, recorded in the Clerk's Office at Realty Reel 339, Page 1016. "Conference Center Ooerator" shall.refe:r to the Developer or its designee to manage the Expanded Conference Center.' "1989 Core Agreement" shall refer: to that Construction, Operating and Reciprocal Easement Agreement, which is recorded in the Clerk's Office at Realty Reel 317, page 184, as amended by the First Amendment to Construction, Operating and Reciprocal Easement Agreement dated July 16, 1990, and recorded in the Clerk's Office at Realty Reer340, page 2110. A:lAmended and ReslAted CORE Agreement #9. wpd 4 REH ;" "Developer" shall refer to Augusta Riverfront Limited Partnership, a Georgia limited partnership, and its successors and assigns. . "Escrow Agent" shall refer to the bank selected by the parties hereto to hold and disburse the proceeds from the payoff ofthe UDAG Loan in accordance with the tenns of this Restated CORE Agreement and the tenns of an escrow agreement to be entered into among the Escrow Agent and the parties hereto. "Escrowed Funds" shall refer .to the proceeds of the payoff of the UDAG Loan in the original principal amount of $3,250,000.00 and all accrued interest thereon to be held by the Escrow Agent in accordance with the tenns of this Restated CORE Agreement and an escrow agreement to be entered into among the Escrow Agent and the parties hereto. , ~ , 5 1 ; , ~ ! 'l ~ ; 1 1 I j t ~ ! i "Existing Conference Center" shall refer to the improvements constructed on Parcel "P-l" on the Plat and currently operated as a convention and conference center. "Existing Hotel" shall refer to that Radisson hotel owned by the Developer and located on Parcel "M". "Expanded Conference Center" shall refer jointly to the Existing Conference Center and the Conference Center Addition. "Ground Lease" shall refer to that Ground Lease covering Parcels ''N'', ''N-l'' and ''N-2'' between the Developer as lessor and the Authority as lessee dated July 16, 1990, and recorded in the Clerk's Office at Realty Reel 339, Page 940. "Hotels" shall refer collectively to the Existing Hotel and the New Hotel. "Hotel Operator" shall refer to the Developer or its designee as operator of the Hotels. "Kitchen" shall refer to that portion of the Existing Hotel and the Existing Conference Center currently used as a kitchen. ''New Hotel" shall mean that hotel containing approximately 140 rooms to be constructed by the Developer on Parcels "Q", 'ip_4", and "N-l" in accordance with the terms of this Restated CORE Agreement. Currently, the Developer plans for the New Hotel to be a Radisson Country Inn & Suites by Carlson or equivalent. ''Notice of Dispute" shall mean a notice given to the Escrow Agent with, regard to a dispute concerning disposition of the Escrowed Funds. "Parcel" shall refer to the respective parcel as set forth on the Plat. "Parking Deck" shall refer to the two-level parking deck located on Parcel "P" and leased by the Authority to the City pursuant to the Parking Improvements Lease. "Parking Improvements" shall refer to the Parking Deck and the surface parking lot improvements located on Parcels "P", "N", "N-I" and "N-2". A:lAmendcd and Restated CORE Agreement #9.wpd 5 REH "Parking Improvements Lease". shall refer to that Lease Agreement covering the Parking Improvements located on Parcels "P", "N", "N-l" and "N-2" dated June 1, 1990, between the Authority as lessor and the City as lessee, recorded in the Clerk's Office at Realty Re.eI339, Page 964. "Parking Lot Modification Plan" shall refer to the preliminary plans attached as Exhibit "B" relating to the addition of a toll booth and renovation of the driveway at the 10th Street entrance to the Parking Improvements. "~" shall refer to the City, the Developer, the Authority or the Escrow Agent (collectively, the "Parties"). "Plans and Specifications" shall refer to the final plans and specification for the New Hotel and the Conference Center Addition prepared by the Developer and submitted to the City in accordance with this Restated CORE Agreement. "Plat" shall refer to that plat dated January 19, 1999, and last revised June 1, 1999, prepared by Cranston, Robertson & Whitehurst, P.C. for Augusta Riverfront Limited Partnership and recorded in the Clerk's Office simultaneously with this Restated CORE Agreement. ., "Proiect" shall refer to the Hotels, the Parking Improvements, and the Expanded Conference Center, collectively. "Riverwalk" shall refer to the sidewalk and adjacent improvements along the Savannah River levee in Augusta, Georgia. "Term" shall mean the period oftime described herein plus any extension thereof, during which this Restated CORE Agreement remains in force and effect. "Total Expenses" shall mean all expenses and costs actually incurred by the Developer for the operation and maintenance of the Expanded Conference Center, determined in accordance with generally accepted accounting principles (excluding, however, debt service of the Developer; depreciation, amortizat.ion and other non-cash items; and capital expenditures). "Total Gross Income and Revenues" shall mean all income actually received for the rental of the space in the Expanded Conference Center, before any expenses (including but not limited to operating expenses, debt service, management fees, or developer fees) are paid, less rebates and any applicable sales tax. Total Gross Income and Revenues shall include fees from leases, special fees, assessments, miscellaneous income and special event charges. "UDAG Loan" shall refer to that loan made by the City to the Developer pursuant to that certain Urban Development Action Grant Agreement Number B-87-AA-13-0095 issued to the City by the U.S. Department of Housing and Urban Development on November 30, 1987, as amended. "UDAG Note" shall refer to that Promissory Note and Guaranty Agreement from the Developer to the order of the City died February 2, 1990. A:\Amended and Restated CORE Agreement fI9.wpd 6 REH \, "UDAG Security Deed" shall refer to that UDAG Security Deed and Security Agreement dated February 2, 1990 and recorded in the Clerk's Office at Realty Reel 327, Page 2286. "Unavoidable Delavs" shall mean delays due to strikes, acts of God, governmental restrictions or preemption of labor or material, enemy action, insurrection, fire or casualty or other events beyond the reasonable control of the Party responsible for such performance. ARTICLE IT CONVEYANCES AND EASEMENTS Section 2.1 Convevance of Parcel "P-4". In consideration for the conveyance of Parcel "N-2" from the Developer to the Authority, the Authority shall convey Parcel "P-4" to the Developer. The conveyances shall be simultaneous and shall occur within 45 days from the execution of this Restated CORE Agreement. The Authority will retain an easement over parcel "P-4" for access to and from the Parking Improvements and the Conference Center as more particularly described in the deed. Section 2.2 Conveyance of Parcel "N-2". In consideration for the conveyance of Parcel "P-4" from the Authority to the Developer, the Developer shall convey Parcel ''N-2'' to the Authority. The Developer will retain an easement over Parcel ''N-2'' for access to and from Parcels ''N'' and ''N-l ". The Ground Lease and the Parking Improvements Lease shall be amended to account for said conveyances. Section 2.3 "Special Use Area. 1999" and "Access Area #1 ". Within 45 days from the execution of this Restated CORE Agreement, the City shall grant a perpetual easement to the Authority to construct and maintain the Confererice Center Addition over "Special Use Area, 1999" and "Access Area #i". J. Section 2.4 Parcels "P-5". "P-6" and "P-7". Within 45 days from the execution of this Restated CORE Agreement, the Authority and the City shall (i) amend the Conference Center Lease to include Parcels "P-5", "P-6", "P-7", "Special Use Area, 1999", and "Access Area #1 "as part of the demised premises thereof (accordingly, the Expanded Conference Center will occupy Parcels "P-l ", "P-5", "P-6", P-7", "Special Use Area, 1999", and "Access Area # 1 ", which will be part of the demised premises of the Conference Center Lease) and (ii) amend the Parking Improvements Lease to delete Parcels "P-5", "P-6" and "P-7" therefrom. ~ . ~, \-: ~ a ;.: ta ~ ~ t~ .~i ~~ Section 2.5 CanoDv Area. Within 45 days from the execution of this Restated CORE Agreement, the City shall grant an easement to the Developer over the Canopy Area in order to allow the Developer to construct and maintain a canopy over said property. The easement agreement shall provide that the canopy shall not impair pedestrian movement along the sidewalk underneath the canopy. .:~ Section 2.6 Easement over Parcel "P-8" for Covered Walkway. Within 45 days from the execution of this Restated CORE Agreement, the Authority shall grant the Developer an easement over Parcel "P-8" for the construction and maintenance of a covered walkway between the New Hotel and the Existing Conference Center and for access between the New Hotel and Existing Conference Center. The Plans and Specifications shall describe any alterations to existing sidewalks and landscaping in the vicinity of the covered walkway. " -" ~1 "J A:\Amended and ileslated CORE Agreement #9. wpd 7 REH .. '- -'. .'" Section 2.7 Easement for Access and Parking. The Authority and the City, as the owner and lessee of the Parking Improvements, hereby grant to Developer, its respective tenants, subtenants, concessionaires, licensees, employees, officers and invitees, and to the Conference Center Operator and its employees, agents, concessionaires, licensees and invitees, non-exclusive, perpetual easements over, upon, across and through the Parking Improvements for (a) pedestrian and vehicular ingress to and egress from the Parking Improvements; (b) circulation, passage and parking of vehicles within the Parking Improvements; and ( c) circulation and passage of pedestrians over and through such ramps, walkways, stairways, elevators and other facilities as may from time to time be included within the Parking Improvements; provided, however, that the persons permitted to use such easements by Developer shall be required to pay such parking charges or rents as may from time to time be in effect with respect to the Parking Improvements and shall be subject to the City's (or its designee's) rules and regulations regarding use of the Parking Improvements. Nothing in this Section shall be deemed to restrict the Conference Center Operator from restricting access to the Expanded Conference Center. The easements granted under this Section shall continue so long as the Parking Improvements continue to exist. Section 2.8 Construction Easements. The City and the Authority hereby grant to the Developer a temporary right, privilege and easement to enter upon their respective properties at the Project from time to time to construct the New Hotel and the Expanded Conference Center. Developer shall have the right to permit its contractors and subcontractors, agents and employees to use the easement granted for the aforesaid purposes. The easement granted herein includes the right to construct columns, footings and common walls. Such construction easement shall cease and terminate upon completion of construction of the New Hotel and Expanded Conference Center. The construction and location of any common footings, underground supports and common walls shall be subject to approval of the final plans and specifications for such improvements by the Parties sharing such improvements. The City also grants to the Developer temporary easements during the construction period over its property adjoining the Project to allow for the efficient and safe construction of the Conference Center Addition; provided, however, Developer shall not be allowed to close access to Riverwalk without the prior written approval of the City Administrator, and any such closing ofacc~ss shall be for a limited time. The City reserves the right to close Riverwalk when the City, in its sole discretion, deems it necessary to provide for the safety of the public because of construction activity by the Developer. During such times as the Riverwalk is closed because of construction activities of Developer, Developer shall be solely responsible for securing said area and for any and all claims, actions, causes of action, losses, damages, liability, expenses or claims whatsoever (including reasonable attorney's fees and the cost of defending against the foregoing) resulting from construction activities by Developer. Section 2.9 Easements for Underground Supports. Party Walls and Connection of Corridors. The Parties acknowledge that their improvements may share common footings and underground supports (hereinafter referred to as the "Underground Supports") and common walls (hereinafter referred to as the "Party Walls") with the Hotels, the Expanded Conference Center and the Parking Deck. Each of the Parties hereby grants to each other Party a non-exclusive easement for the construction and maintenance of openings in the walls between their respective improvements at the locations shown by the Concept Plans in order to connect the corridors and passageways of such improvements with one another, provided that the manner of connection shall be in accordance with generally accepted engineering and construction practice for improvements of such type and so as not to impair the structural integrity of the other Party's improvements, and provided that nothing herein, in and of itself, shall be deemed to create an easement for passage through any such connected corridors or passageways. All such easements shall cohtinue so long as any portion of this Restated CORE Agreement shall remain effective and thereafter so long as the improvements benefitted by such easements exits. The exercise of easement rights under this Section by any Party shall be conducted A:\Amended and Restated CORE Agreement #9.wpd 8 REH in such a manner as will minimize interference with the conduct of business by the other Party. Each of such Parties covenants that if all or any part of its irhprovements are removed or destroyed at any time when it is not required to restore and does not elect to restore such improvements, it will leave in place any foundations, footings or walls (or portions thereof) not removed or destroyed if, immediately before such removal or destruction, such foundations, footings or walls (or portions thereof) were shared jointly between such Party and the other Party. Should, in the reasonable opinion of either Party, the Party Wall or any portion thereof of the openings therein providing access between the Parties' respective improvements require repair or rebuilding, the other Party sharing such Party Wall shall cooperate in such repair or rebuilding and shall cause such repair or rebuilding to beaccomplished at a time convenient to both, with the cost of such repair or rebuilding to be borne in equal shares; provided that the cost of any such repair that may be occasioned by the neglect or willful act of either Party shall be borne by that Party. The phase "repair and rebuilding" as used herein shall not include ordjnary maintenance and care such as painting and cleaning. Section 2.10 Easements for Kitchen. The City and the Authority hereby grant to the Developer an exclusive right, privilege and easement in that certain portion of the Existing Conference Center which is currently used as the Kitchen for the purpose of operating within such easement area a kitchen which shall serve both the Existing Hotel and the Expanded Conference Center. Notwithstanding any provision of this Agreement to the contrary, Developer shall be solely responsible for the cost of maintaining, insuring, repairing and replacing the Kitchen and any and all personal property from time to time located therein. The easement referred to above shall continue as long as the Kitchen is used for the operation of a kitchen serving the Existing Hotel. Similarly, for such time as the Developer shall fail to provide food service to the Expanded Conference Center as provided herein, the Developer hereby grants to City an exclusive right, privilege and easement in that certain portion of the Existing Hotel which is a portion of the Kitchen; said easement being for the purpose of operating within such easement area the Kitchen which shall serve both the Existing Hotel and the Expanded Conference Center. The easement granted herein shall continue as long as Developer shall fail to provide food service to the Expanded Conference Center pursuant to the terms hereof and the use of the Kitchen is deemed necessary by the City to serve the Expanded Conference Center. Section 2.11 Easements for Attachment of Hotels and Expanded Conference Center Imorovements to City Improvements. The City (and, if applicable, the Authority) hereby grants to Developer a perpetual easement onto and across the property of the City (and, if applicable, the Authority) for the purpose of constructing and maintaining sidewalks, stairways and pedestrian bridges connecting the Project with the sidewalks and other improvements associated with the Riverwalk sidewalk and adjacent improvements along the Savannah River levee. Section 2.12 Easement for Encroachments. While it is the intent of the Parties to confine their improvements to the limits of their respective property, it is recognized that this result may not be achieved due to the integrated nature of the Project. -Accordingly, ifthe Hotels, Parking Improvements or Expanded Conference Center improvements, following construction, encroach on a portion of the property of another Party, the Party across whose property such improvements encroach hereby grants to the Party whose improyements so encroach an easement, for so long as such improvements (or any replacement thereof constructed during the term of this Restated CORE Agreement) stand, permitting the construction and maintenance of such improvements on such portion of such property. Section 2. I 3 Certain Reserved Rights. Developer hereby reserves the right to eject from its premises (including any "common" or "public" areas thereof) any persons not invited or otherwise permitted A:lAmended and Raated CORE Agreement tI9-wPd 9 REH ;. to use same and to close off its respective improvements at any time and from time to time for security purposes. Further, the Conference Center Operator shall have the right to close off or limit access to and from the Expanded Conference Center at any time and from time to time for security purposes, provided that the Conference Center Operator shall not be permitted to impede pedestrian access between the Parking improvements or the Riverwalk improvements, on the one hand, and the Hotels on the other hand, through the walkways, stairways and corridors for the Expanded Conference Center, except in connection with such temporary closings as may be necessary for the cleaning, repair and maintenance of such access and improvements. Section 2.14 Additional Construction. After construction ofthe Conference Center Addition and New Hotel has been completed, Developer, the Authority and the City shall each have the right to make alterations, modifications, expansion or additions to their respective improvements; provided, however, that during the Term hereof neither the City nor the Authority shall make any such alterations, modifications, expansion or addition which: (i) materially changes or alters the architectural elevations or design or the exterior building materials of the same, or (ii) impairs access between and among the said improvements. Neither the City nor the Authority shall expand or materially alter or modify the Project improvements at any time during the Term without the prior written approval of the plans for such expansion, alteration or modification by Developer, which approval shall not be unreasonably withheld. . , Section 2.15 Term. Unless specifically otherwise provided in this Restated CORE Agreement, the easements provided in this Article shall be perpetual and shall not terminate upon the expiration or earlier termination of this Restated CORE Agreement. Section 2.16 Savings Clause. Notwithstanding that this Restated CORE Agreement supersedes and replaces the 1989 Core Agreement, this Restated CORE Agreement shall not terminate any easement created by the 1989 Core Agreement that is necessary for the support, maintenance or operation of any portion of the Project or the Developer's office building adjacent to the Project and known as One Tenth Street under the system of street numbering currently in effect in Augusta, Georgia. ARTICLE ill CONSTRUCTION OF THE CONFERENCE CENTER ADDITION Section 3.1 Satisfaction ofUDAG Loan. Within five business days after the execution of this Restated CORE Agreement, the Developer shall pay to the Escrow Agent, for the account of the City, the amount of$3,250,000.00 (the "Escrowed Funds") in full and complete satisfaction of the UDAG Loan. Upon receipt of such payment, the City shall mark the UDAG Note "satisfied" and return the original thereof to the Developer; shall execute and deliver to Developer a satisfaction and cancellation of the UDAG Security Deed in recordable form; and shall execute and deliver all other documents necessary to release any financing statements and fixture filings relating to the UDAG loan. Section 3.2 Disbursement of Escrowed Funds. The Escrow Agent shall hold the Escrowed Funds in an interest bearing account and disburse the Escrowed Funds and all interest thereon to fund the construction costs of the Conference Center Addition in accordance with the terms of this Restated CORE Agreement. A:\Amended and Restated CORE Agreement /I9.wpd 10 REH Section 3.3 Aooroval of Plans and Soecifications. The City hereby approves the Concept Plans. The Conference Center Addition improvements shall (i) be aesthetically consistent with the Existing Hotel and built in substantial accordance with the Concept Plans; (ii) include approximately 30,000 square feet of additional space; (iii) have a budgeted and actual cost of at least $3,250,000.00, and (iv) be built to the same standards of quality and workmanship as the Conference Center. Prior to 30 days before commencement of construction of the Conference Center Addition, the Developer shall submit the Plans and Specifications therefor to the City Administrator. Unless the City Administrator objects to the Plans and Specifications in writing within 20 days of his receipt thereof, the Plans and Specifications shall be deemed approved. Approval of the Plans and Specifications shall not be unreasonably withheld. Section 3.4 Construction of the Conference Center Addition. The Developer has engaged the services of the Architect to design the Conference Center Addition and supervise its construction. The Developer and the Architect will provide all construction services needed in connection with the Conference Center Addition, including administration, supervision and coordination ofthe bidding, award, execution, and performance of a general construction contract and subcontracts. The Developer shall cause the construction of the Conference Center Addition in substantial accordance with the Plans and Specifications. Section 3.5 Funding of Construction Costs. Construction of the Conference Center Addition and relocation of the ramp to the Parking Deck shall be at the City's sole cost and expense only so long as such cost does not exceed the amount of the Escrowed Funds and all interest thereon. In the event that the costs of construction of the Conference Center Addition should exceed the amount of the Escrowed Funds and all interest thereon, the Developer shall pay any all such additional costs as and when the same shall become due and payable. The term "costs of construction" or "construction costs" as used in this Article shall include, specifically, but not exclusively, all sums paid by the Developer to any contractor, subcontractor; third-party laborer or supplier performing any work or supplying any furniture, fixtures, furnishings, tables, podiums, risers or materials for the Conference Center Addition and relocation of the ramp to the Parking Deck (excluding the costs of china and silverware) and all architectural, engineering, surveying, and escrow agent fees incurred, in connection with the Conference Center Addition or this Restated CORE Agreement, all premiums for insurance coverage required to be maintained on the Expanded Conference Center prior to completion of construction, and any other costs and expenses in connection with the construction and furnishing of the Conference Center Addition. Payment of any portion of such construction costs shall not entitle the Developer to any ownership interest in Conference Center Addition. Section 3.6 Construction Draws. The Developer may, not more than twice a month during the construction period, request draws in an amount equal to the actual cost of labor, materials and furnishings incorporated into the Conference Center Addition and all other costs of construction. Escrow Agent shall disburse the requested amounts from the balance of the Escrowed Funds and accrued interest thereon within fiv~ business days of its receipt of the following: (a) Written certification from the Architect that the work for which payment is requested was completed in substantial accordance with the Plans and Specifications; and (b) Waivers of lien from all contractors, subcontractors and material suppliers who have furnished labor and material for the Project or who have issued a notice to owner as contemplated by the applicable lien statutes. The Developer shall deliver copies of the foregoing simultaneously to the City. A:\Amended and Restated CORE Agrccmenlll9. wpd 11 REH , -.i.~ifj;iillJ;2iL2':~'_:'}i';",c< ,~..-. .' Section 3.7 Penormance of Cnnstruction. The Developer shall pennrm, or cause to be penormed, its coostruction in accordance with the Plans and Specification, with due diligence and in a good and workmanlike manner, using first class materials and in accordance with all applicable laws, ordinances, rules and regulations of all goverumental agencies and anthorities h.vingjnrisdiction over snch construction. Section 3.8 Liens. The Developer agrees that, in the event any mechanic's lien or other statutory lien shall be filed during the term of this Restated CORE Agreement against all or any portion of the Conference Center Addition, the Developer shall pay and discharge the same or bond off or otherwise cause such lien to be discharged of record and shall indemnify and save harm less the other parties hereto and their successor and assigns from all losses, damages, liability, expenses or claims whatsoever (including reasonable attorney's fees and the costs of defending against the foregoing) resulting from the assertion of any such liens. Section 3.9 Insurance. The Developer shall during the period of any construction maintain builder's risk insurance on a non-reporting, completed value basis with extended coverage endorsement. Such insurance may, at the option of the Developer, contain a loss deductible provis;pn of not more than $100,000.00. . Section 3. 10 \ O. Street Parkin.. Lot Renovation. The City shall add an additional toll booth and renovate the driveways at the 10" Street entrai1ce to the Parking Improvements, in substantial accordance with the Parking Lot Modification Plan. Such renovations will be at the City'S sole cost and expense. The City shall commence such renovations prior to commencement of construction of the Conference Center Addition. Section 3.\\ 9" Street Toll Booth. The Developer shall hear all costs associated with the relocation or modification of the existing toll booth at the 9" Street entrance to the Parking Improvements. ARTICLE IV OPERATION ANn MAmTENANCE OF CONF'ERENCE CENTER '! .~ ~ ~ ~ :~ ~ ~ f.~l & ~1~ -~B .::~ .~~:?{ Section 4.\ Operation bv Designeeafthe Developer. So long as either the Existing Hotel or New Hotel is operated as a hotel and prior to the expiration of the Term, the Expanded Conference Center shall be operated and managed by the Developer directly or through a management company. Such operator of the Expanded Conference Center shall be referred to herein as the "Conference Center Operator". It is contemplated that the Conference Center Operator may be the same entity that acts as the Hotel Operator. The Conference Center Operator shall have sole discretion and control in the establishment of reasonable rules and regulations for the Expanded conference Center, the establishment of reasonable fees and charges for use of the Expanded Conference Center facilities and for food and beverages and ancillary services, the employment and supervision ofall personnel, accounting for the receipt and disbursement of funds, and all other activities relating to the operation ofthe Expanded Conference Center. The fees charged for leasing ballroom, meeting rooms and providing other faci I ities and services at the Expanded Conference Center shall be reasonable and in conformity with those being charged by other comparable conference centers of a sim ilar size and usage as may be determ ined in the discretion of the Developer or the Conference Center :~~5~ Y-'d i 12 A:\Amended and Restated CORE Agreement 119 . wpd u;:;; i,';~::;-"'" .J".': .:; . ..i. . ~'..~:: .~~j 1:t.:~.".,. ':..\ .~ :i: '1; l.f' ~:' i~ 1': k. r1 REH .._ . .,'_.......~n_-.... " Operator. In all such respects, the Conference Center Operator shall operate the' Expanded Conference Center as a first-class meeting, conference and convention center which complements and enhances the operation of the Hotels and shall not use, conduct or permit any use of the Expanded Conference Center which is disreputable or inconsistent with a first-class facility. Regardless of anything contained herein to the contrary, the Conference Center Operator shall make the Expanded Conference Center available for use by the City and/or any individual or any group without discrimination for sex, race, creed, color or national origin. The Developer hereby indemnifies, holds harmless and releases the City and the Authority, and their agents, employees and contractors, from and against any and all claims for damage to persons or property arising from the Developer's operation of the Expanded Conference Center. Section 4.2 Kitchen. The Developer and the City have agreed that as a part of its management ot-the Expanded Conference Center the Hotel Operator shall provide all food services for both the Existing Hotel and the Expanded Conference Center. So long as the Hotel Operator shall provide food services of reasonable quality and at reasonable prices to the Expanded Conference Center, the Developer shall have exclusive rights to the utilization of the Kitchen. The City and the Developer have agreed, however, that in the event that the Hotel Operator shall fail to provide said food services of reasonable quality and price so that same are unavailable for the operation of the Expanded Conference Center for a period of seven (7) days or more, then in such event the City or its designee shall have a non-exclusive license to utilize and operate the Kitchen to serve the Expanded Conference Center. Said license shall continue until written notice is given by the Developer to the City stating a date certain on which the provision of food services to the Expanded Conference Center by the Developer or its designee will be resumed and the provision of the same is in fact resumed on said date. During such time as the City shall have the right to utilize the Kitchen as pro~ided above, the Developer shall make said kitchen available to the City at all times and shall maintain the same and all appliances and fixtures contained therein in good working condition. In furtherance of the above agreement City and Developer have granted those reciprocal easement rights described in Article II hereof. ~ j ~ & :;; ~ ~ Section 4.3 Compensation of Developer. Prior to May 1 of every year during the term of this Restated Core Agreement, the Developer shall remit to the City the greater of (i) five percent (5%) of the Total Gross Income and Revenues from the rental of the Expanded Conference Center during the preceding calendar year, or (ii) five percent (5%) of the Total Expenses ofthe Expanded Conference Center during the pI:eceding calendar year. Simultaneously with said payment, the Developer shall submit a statement, audited by the Developer's certified public accountant, to the City setting forth the Total Gross Income and Revenues and Total Expenses from the Expanded Conference Center for the preceding calendar year. All other revenues from the rental and operation of the Expanded Conference Center shall be devoted to the expenses of the operation of the Expanded Conference Center and as compensation for the services of Developer. :~ 0. ~ ~ 1. {~ ~ .:~ :~ ,-. .', ,'.' ~-~ ') Section 4.4 Maintenance and Repair of Expanded Conference Center. During the Term, Developer shall, at its sole cost and expense, be responsible for maintaining the Expanded Conference Center in good condition and repair, including, without limitation, the foundations, structural supports, exterior walls, interior walls and floors, ceilings, and permanent lighting fixtures, sprinkler systems, pipes, wires and conduits within the walls, floors and above ceilings, roof, gutters, down spouts, utility lines, elevators, the heating, ventilating and air conditioning system, and other major systems and fixtures installed within the Expanded Conference Center, and for all appropriate day-to-day or periodic maintenance in connection with such items. Developer shall also, at its sole cost and expense, keep the Expanded Conference Center and all furniture, fixtures and equipment in good operating condition and repair. Without limitation of the foregoing, Developer shall maintain the interior of the Expanded Conference Center (including wall, floor, and window :~ A:lAmendcd and Remtcd CORE Agreement #9. wpd 13 REH covering) and shall replace or repair any broken glass in doors or windows, replace interior light bulbs, and refurbish or replace from time to time as required all furniture, furnishings and equipment as are requisite or desirabl~ for the efficient operation of a first-class conference center (including, without limitations, china, glassware and silverware, tables and chairs, linen, unifonns, podiums and staging platfonns, artwork and decorative accessories). In addition, Developer shall be responsible for all appropriate day-to-day or periodic maintenance of the systems and equipment installed within the Expanded Conference Center. Section 4.5 Insurance. The City, at its sole cost and expense, shall maintain (i) general public liability insurance covering the Expanded Conference Center and the. Parking Improvements, and (ii) fire and extended coverage insurance covering the Expanded Conference Center and the Parking Improvements against risks of damage or loss by fire and other risks now or hereafter embraced by "extended coverage", so called, in an amount (subject to commercial availability) not less than the full replacement cost of the Expanded Conference Center and all furniture, fixtures and equipment owned by the City, exclusive of the cost of excavations, foundations and footings. Such insurance may contain a loss deductible provision of not more than $100,000.00, which loss deductible amount may be adjusted- upward annually by the percentage increase in the Consumer Pricelndex for all urban consumers (CPI-U) (All Items 1982-84=100) for the preceding calendar year. The City shall provide the Developer with a copy of said insurance policies. After June 1, 2003, the Developer shall be responsible for one-half of the cost for'thefire and extended coverage insurance covering the Expanded Conferel1ce Center, with the City responsible for procuring such insurance and invoicing the Developer for its share of the cost therefor. The Developer or the Conference Center Operator shall maintain appropriate workers' compensation insurance relating to the operation of the Expanded Conference Center. Section 4.6 Taxes. The City and the Developer do not anticipate that any city or county ad valorem property taxes will be levied against the Expanded Conference Center or the Parking Improvements. In the event and to the extent any such taxes are levied, however, City agrees to indemnify and hold hannless Developer against any claim against Developer on account of same. ARTICLE V CONSTRUCTION OF NEW HOTEL AND OPERATION OF HOTELS Section 5.1 Description of Hotel Improvements. Developer shall construct, as its sole cost and expense, on Parcels "Q", "P-4" and "N-1" a first-class hotel containing approximately 140 guest rooms, a swimming pool, meeting rooms (containing no more than 2,000 square feet of space), appropriate landscaping, driveways and walkways, and o~h~r facilities appropriate for a first-class hotel, together with all furnishings, fixtures and equipment necessary for the operation of such improvements as a first-class hotel. -Such improvements shall be constructed in confonnity with the Concept Plans and be built to the same standards of quality and workmanshipa_s the Existing Hotel. Section 5.2 Operation of Hotels. The Hotel Operator shall operate the Hotels as a first-class hotels with the New Hotel being operated as a first-class limited service hotel. During the Tenn hereof, no operation-or use shall be made, conducted or p~nnitted within the Hotels which is inconsistent with or detrimental to the reputation of the Hotels as first-class hotels or the Expanded Conference Center as a first- class conference center. Developer shall at all times comply with all applicable governmental laws, ?rdinances, rule and regulations in the operation of hotels. A:\Amended and Restated CORE Agreement l19.wpd 14 REH ARTICLE" VI OPERATION AND MAINTENANCE OF PARKING IMPROVEMENTS Section 6.1 General. The Authority has leased the Parking Improvements located on Parcels "N", ''N-l " and "N-2" from the Developer in accordance with the Ground Lease and has subleased the same to the City pursuant to the Parking Improvements Lease. ~e City hereby agrees that during the Term of the Parking Improvements Lease, it shall operate or cause to be operated the Parking Improvements as a parking facility in accordance with the terms of this Restated CORE Agreement and such uniform, non- dIscriminatory rules and regulations as may beadopted from time to time. No barricades, curbs, gates, or other obstacles shall be erected which block or prohibit the free flow of traffic through the entrances, exits, ramps and driveways within the Parking Improvements; provided, however, that nothing herein shall prohibit (i) the erection of such curbs and other control or safety improvements devices which may be necessary to control and direct pedestrian and vehicular traffic within the Parking Improvements; (ii) such temporary closing of the Parking Improvements as may be necessary for the cleaning, repair and maintenance of the same as required from time to time; or (iii) the erection of such toll booths and/or entrance and exit gates are required to limit access to the Parking Improvements to authorized permittees and to collect rents due for the use of the Parking Improvements. Section 6.2 Rent for Spaces. .The City shall have the exclusive right to set or cause to be set the rents for use of the parking spaces within the Parking Improvements, provided that the City shall consult with Developer prior to establishing or changing such rates. The rent schedule shall be set in good faith with a view toward charging rents consistent with market demand and rates charged by parking facilities serving comparable improvements. The renfschedule shall be applied in a uniform and non-discriminatory manner except that nothing herein shall prohibit the charging of a premium for reserved parking spaces. The parking rate for guests of the Hotels and employees ofthe Developer and the Conference Center Operator shall be $2.50 per day (24 hours period comm~ncing at 12:01 a.m.) per car until July 1,2002. "After July 1,2002, the parking rate for guests of the Hotels and employees of the Developer and the Conference Center Operator shall be 90% of the rate charged by the City (or the Authority as tpe case may be) to the general public. .... : Section 6.3 Allocation of Spaces; The Parties acknowledge that as a public facility, the Parking Improvements must be available for use by members of the general public and thatno more than ten percent (10%) the parking spaces may be reserved for exclusive use of Developer. The City agrees that Developer may, at any time, upon agreement as to the rents to be paid therefor, designate up to ten percent (10%) of the . total parking spaces in the Parking Improvements as reserved for the exclusive use ofDeveIoper and/or its designees. Such spaces shall be located within the Parking Deck and the surface parking area as conveniently as possible for the Developer or its designee. Use of such designated parking areas by Hotel guests shall be subject to all rules and regulations applicable -to the Parking Improvements as may be in effect from time to time, including the payment of applicable parking charges or rents. The City shall not grant any other exclusive or priority rights. Section 6.4 Special Parking Needs. It is recognized by the City that Developer may from time to time require additional parking spaces on a short-term basis in connection with special events or functions to be held at the Hotel or the Expanded Conference Center. When such needs are identified, Developer or the Conference Center Operator shall notify the operator of the parking facilities as far in advance as possible, and such operator will use its best efforts to accommodate such requirements, consistent with its duty to serve the general public and provided that nothing herein shall require or authorize such operator to A:\Amended and Restated CORE Agreement l19.wpd 15 REH displace or remove from the parking area rent-paying customers or others entitled to use the Parking Improvements. The parties acknowledge that certain of the spaces will be leased on a long term basis (e.g., monthly) to Developer and/or the Hotel Operator and to tenants of the Developer's office building adjacent to the Project; the City agrees that the lease rates therefor shall be in accordance with ~he provisions of this Section. Section 6.5 Maintenance of Parking Improvements. The City shall maintain the Parking Improvements in good, clean and sightly condition and repair, in such manner as will maintain the appearance of the parking area in substantially the same condition as when it is initially completed, normal wear and tear excepted. Without the limitation of the foregoing, the City shall promptly repair all holes and cracks in concrete or paved surfaces, remove all papers, debris and refuse, wash or thoroughly sweep all paved areas as required, remove snow, ice, surface water and other obstructions, and clean and maintain lighting fixtures and re-Iamp as necessary. The City shall also resurface and re-stripe the parking areas and refurbish directional signs, curbs and other components of the Parking Improvements from time to time as required. Section 6.6 Hours of Operation: Security. Except for temporary closing as permitted in herein, the Parking Improvements shall be kept open and lighted at all times. ARTICLE VII GENERAL PROVISIONS REGARDING OPERA nON Section 7.1 Compliance with Laws. Each Party responsible for operating any improvements referred to herein shall operate its respective improvements in compliance with all applicable governmental requirements, laws, statutes, regulations and/or ordinances, and the party responsible for operating the same shall keep in full force and effect at all times all governmental permits and licenses required for the use and operation of such improvements. Section 7.2 HV AC Operations. Insofar as certain of the Improvements of the Parties shall be internally connected through common corridors and passageways, Developer, in operating the air conditioning and heating system for the Hotels and the Expanded Conference Center, shall operate such systems in a manner which will not unduly drain heat, ventilation or air conditioning from the Improvements of any other Party. Section 7.3 Advertising and Promotion. During all periods in which the Expanded Conference Center is operated by Developer pursuant to this.Restated CORE Agreement, Developer shall be entitled to refer to and promote the Hotels and Expanded Conference Center as a unified operation known under such name as from time to time Developer shall select for the Project. The City and its affiliates, including the Chamber of Commerce and the Augusta-Richmond County Convention and Visitors Bureau, shall likewise be entitled to refer to theHotels and Expanded Gonference Center by such name and to promote the same as a unified operation, subject to Developer's right to review and approve promotional literature and advertising of the City and its affiliates with respect to the Hotels and Expanded Conference Center. A:lAmended and Restated CORE Agreement #9.wpd 16 REH ~ ARTICLE VITI DAMAGE AND DESTRUCTION - Section 8.1 Damage or Destruction of Expanded Conference Center. Provided that the Hotels are being operated as a hotels, in the event of damage to or destruction of all or any part of the Expanded Conference Center during the Term of this Restated CORE Agreement, at the request of Developer, the City or the Authority (as applicable) shall be obligated to promptly utilize all available insurance proceeds to rebuild, replace and repair such damaged or destroyed improvements to the same condition and usefulness and to the same general appearance as existed immediately prior to such damage or destruction; provided, that in the event any damage or destruction to the Expanded Conference Center has resulted from any event which also caused damage or destruction to all or a substantial part of the Hotels, the City's or the Authority's obligation to rebuild pursuant hereto shall be contingent upon the decision of the Developer to rebuild, replace and repair the Hotels. If Developer requests the City or the Authority to make said insurance proceeds available and the available insurance proceeds are insufficient to fully restore the Expanded Conference Center, the cost of such restoration in excess of available insurance proceeds shall be paid by the Developer. Such reconstruction shall be completed as expeditiously as reasonably possible and shall be performed in compliance with the requirements set forth with respect to the initial construction of such improvements. Section 8.2 Damage or Destruction of Parking Improvements. In the event of damage or destruction of all or any part of the Parking Improvements during the Term of this Restated CORE Agreement, the City or the Authority (as applicable) shall be obligated to promptly utilize all available insurance proceeds to rebuild, replace and repair such damaged or destroyed improvements to the same condition and usefulness and to the same general appearance as existed immediately prior to such damage or destruction; provided, however, that the extent of the City's or the Authority's obligation to rebuild pursuant hereto shall be contingent upon the continued operation of the Expanded Conference Center or the Hotels, it being agreed that the City or the Authority shall not be required to repair and restore the Parking Improvement except to the extent that parking facilities are required in connection with the use and operation of the remaining Project Improvements. Any reconstruction or repair of the Parking Improvements shall be completed as expeditiously as reasonably possible and shall be performed in compliance with the requirements herein set forth with respect to the initial construction of such Improvements. Section 8.3 Clearing Debris from Razed Improvements. To the extent a Party is not expressly required hereunder to restore all or a portion of its Improvements destroyed or damaged by casualty and does not elect to restore such damaged or destroyed improvements, such Party shall promptly raze the portions thereof which are not restored or rehabilitated, bring any Party Wall to the standard of an exterior wall, clear away all debris and take all other action (including landscaping) required by good constructions practice so that the area which had been occupied by the razed building or portions thereof will be compatible with the remainder ofthe Project; provided,-however, this provision shall not prevent such Party from subsequently building on the tract so landscaped provided that the plans and specifications for any new improvements to be constructed on such tract and the use thereof shall be subject to the prior written approval of the other Parties thereto. Section 8.4 Discontinuance of Use as Hotels. To the extent that Developer is not expressly required pursuant to the provisions hereof to restore all or a portion of the Hotels which are damaged or destroyed by a casualty occurring during the Term of this Restated CORE Agreement and does not elect to A:lAmendcd and RestAted CORE Agreemenlll9.wpd 17 REH r. "-,.," restore such damaged or destroyed improvements, and, in connection therewith, discontinues operation of the Hotels, Developer shall be released from its obligation hereunder to operate the Hotels for the remaining balance ofthe Term hereof; provided that the City shall thereafter be entitled to terminate the provisions of this Restated CORE Agreement relating to the operation of the Expanded Conference Center by delivering written notice of such election to Developer, whereupon the City shall become vested with full responsibility for the operation, management, maintenance and repair ofthe Expanded Conference Center and the discharge of all obligations previously allocated to Developer with respect thereto under any provisions of this Restated CORE Agreement. ARTICLE IX MISCELLANEOUS Section 9.1 Term. The Term of this Restated CORE Agreement and the rights and obligations of the parties hereunder shall continue and shall remain binding upon the parties from the date hereof until the earlier of (i) the date on which the Hotels shall have ceased to be operated as hotels for a continuous period of one (1) year or (ii) fifty (50) years from the date of the execution of this Restated CORE Agreement (the "Term "). Thereafter, this Restated CORE Agreement shall automatically be continued to the extent and for the maximum time permitted by Georgia law for successive periods of one (1) year each for so long as the Hotels shall continue to be operated as hotels unless any party hereto shall elect in writing to termil)ate this Restated CORE Agreement. . Section 9.2 Successors and Assigns. All terms of this Restated CORE Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties. Section 9.3 Transfer ofPropertv. If during the Term any Project property is sold or otherwise transferred, such transfer shall be subject to this Restated CORE Agreement and the transferee shall be bound by its transferor's obligations hereunder as-fully as if such transferee were originally a party hereto. If any Party shall transfer or convey its entire property at the Project, such Party shall not be released from any further liability arising under this Restated CORE Agreement in respect of any period after the date of such _ Jransfer or conveyance without the written consent of the other Parties, which consent shall not be unreasonably withheld. Section 9.4 Financing - Limitations of Mortgagee Liability. Notwithstanding anything to the contrary contained in this Restated CORE Agreement, any Party may finance its property subject to this Restated CORE_Agreement, and, in conjunction therewith, may convey and/or assign (either absolutely or conditionally) all of its rights and interests under this Restated CORE Agreement to any such mortgagee or lessor. This Restated CORE Agreement and the rights, interests and easements created hereunder shall be prior and superior to any such mortgage or lease of any portion of the Project. Any such mortgagee or lessor shall be liable for the performance ofthe mortgagor's or lessee's covenants and obligations hereunder only if and for so long as such mortgagee or lessor comes into and holds possession (or has a right to possession) of such Mortgagor's or lessee's property, but upon any such transfer or further lease the transferee shall be subject to the.terms of this Restated CORE Agreement. Except as specifically provided in this Restated CORE Agreement, no mortgagee s~all have any personal or corporate liability with regard to any provision of this Restated CORE Agreement during the period of such mortgagee's ownership or possession of any A:lAmended and Restated CORE Agreement fI9.wpd 18 REH " property encumbered hereby, any such mortgagee's liability hereunder being limited to its interest in the property covered by such mortgage, any improvements erected thereon, and the rents and other income derived therefrom. Section 9.5 Notices. Any notice, request, demand, approval or consent given or required to be given under this Restated CORE Agreement shall be in writing and shall be deemed to have been given or made or communicated when delivered by hand, when received (as evidenced by the official return receipt of the U.S. Postal Service) if mailed by certified or registered United States mail, postage pre-paid, return receipt requested, or when delivered if sent by Federal Express or other recognized overnight courier delivery service, addressed as follows: In case of the City to: Augusta-Richmond County City County Municipal Building 530 Greene Street Augusta, Georgia 30901 Attn: City Administrator In the case ofthe Developer to: Augusta Riverfront Limited Partnership One 10th Street, Riverfront Center, Suite 340 Augusta, Georgia 30901 Attn: Mr. Paul S. Simon In the case of the Authority to: The Downtown Development Authority of the City of Augusta, Georgia #4 Fifth Street Augusta, Georgia 30901 With a copy to: Burnside, Wall, Daniel, Ellison & Revell . Post Office Box 2125 Augusta, Georgia 30903 Attn: City Attorney With a copy to: Hull, Towill, Norman, Barrett & Salley, P.C. . Post Office Box 1564 Augusta, Georgia 309]3 Attn: Managing Partner With a copy to: Warlick, Tritt & Stebbins ] 5th Floor First Union Bank Bldg. 699 Broad Street I Augusta, Georgia 30901 Attn: Managing Partner Any Party may, at any time, change its address for the above purposes by giving notices to the other Parties in. the manner herein provided, such designation being effective from and after the day of receipt of notice .thereof by the other Parties. . Section 9.6 Notice to Mortgagees. Each Party giving notice of a default under this Restated CORE Agreement shall send by registered or certified United States mail, postage pre-paid, a copy of such notice to any holder of a mortgage on the property or improvements of the Party so notified provided that such holder shall have sent the Party giving the notice of default a notice informing it of the existence of such mortgage and the name of the person or officer and the address to which copies of such notices of default are to be sent, and such holder shall be permitted to cure any such default no later than thirty (30) days after a copy of the notice of default shall have been sent to such holder, provided that in the case of a default which cannot with diligence be remedied within such period of thirty (30) days, such holder shall have such additional period as may be necessary to remedy such default with diligence and continuity. A:lAmended and Restated CORE Agreement #9. wpd 19 REI! Section 9.7 Waiver of Subrogation. Each Party hereby agrees not to assign to any insurance company any right or cause of action for damage to the Project, any property located therein, or for damage to persons or property of others, which any Party now has or may subsequently acquire against another Party during the term of this Agreement, and expressly waives all rights of recovery for such damage. This section shall only apply (i) where such insurance as described herein allows the insured to enter into an agreement waiving recovery rights, and (ii) to the extent insurance proceeds are recovered. Section 9.8 Amendments and Modifications. This Restated CORE Agreement may be amended or modified only by written instrument signed by each of the Parties hereto affected by such amendment or modification. Any such amendment or modification shall be made and executed in recordable form. A copy of each such modification or amendment shall be provided to each Party hereto, even if a Party is not a signatory to such modification or amendment. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed under seal effective the date and year first above written. Signed, sealed and delivered in the presence of: Au -- ~. (;. ?...,.:: o "- ~ t ~ ,: ~ , >.:.. A.~ ;'- ~. ,.",..... _ .. ~'-_ 0 ~ . (-S- '~I)' 0 ~ _' , ", I'. ~_ai: _: ~ .I \ ',j ----------::;.:,." " ~/r.7-~--" ~ "",'" "', . '::"o~' _ ~ ..........---....-- t3~. kJ",h? Unof Icial Wiiiles~ .~ By: , .' ,,- Augusta Riverfront Limited Partnership, a Georgia limited partnership (Notarial Seal) (Seal) ."...........-...c..._... - - - . .- - - . '':'f' ~~- -...."..., :..;: ~ -, ~,-...r- - - - %~\ :- oJ" -=- -_- .~/' --;. "/ -- - ~.......~.'-- ....--- -~_. -;,.... . 1"",..... ~ " C:\MyFiles\#162 (Riverfronl)lAmended and Restated CORE Agreement #8.wpd 20 REH Signed, sealed and delivered in the presertce pf: . ~ ~ $ 'E~~ -r::t:t/ Notary Public (Notarial Seal) ,,- ';". :" P'; .: =- "" ~ \ _P- ,.~.~ ". ,- ~.~,:. ~ _. c/ - " ... -.. ~,.1 ... -"".._=_~~'" . ~ ,,. --------.-"" .1,........_- C:\MyFiles\#162 (Riverfront)lAmended and Restated CORE Agreement #8.wpd The Downtown Development Authority of the City of sta, Georgia By: tJIj. ~ , Its Chairman - \ ~1~~73'd Its Secretary (Seal) ". ". 2l REH JUL-07-1999 09:21 "- CONSENT P.03/04 First Union National Bank, successor to. First Union National Bank of Georgia. as (i) grantee under that Deed to Secure Debt and Assigmnent of Rent from the Authority dated July 16, 1990, md recorded in the elertc's Office at Realty Reel 339, Page 957; (ii) assignee under IbaI CoodiUoaal Assignment of Lease from the Authority dated July 16,1990, and recorded in the Clerk's Office aI Realty Ree1339, Page 1056; and (iii) secured party UDder that Security Agreement from the Authority dated July 16, 1990, hereby consents to the transactions described in this Restated CORE Agreement. Eltccutcd under seal this _ day of 1une. 1999.. First Union National Bank. su!:ceSS f 9 First un'1Jtonal Bank of .~ . By: ( !~ .~~. AJiLS~ Vc,~ (Seal) Signed. sealed and delivered in the ~~ Unofficial Imess ~.f<~. N P bl" ~.. ,":).. ' ,,#4>, orary U Ie ,. ..." ..........., V"A "'... : ~" .". ... \,.~ ... :CJ/ ,,"!'~I':) \~, (No~l::g~' ~ .---: \ ," \ 4. ~ ~,._ co _: ", '~'S) t.... : "'"'.~~~"io~(">. ~.-., ;Cln &": . f'_ I 0: :" G ...p;rts 'JI.,'f~~".P{13' \\1 !Q .: <Ct ~ -.. J ... .'~.: e:, oJ!.. .... ...,,- (j ,. "", . "''() "... ....:,.,{" ",,'9 " CO" "-\'\' ..... '~t 'J '" -~.. ..,,~:: ,,:.:\t1 A_"~~ "---'t.... 22 UJ4 CONSENT First Union National Bank, successor to First Union National Bank of Georgia, as (i) grantee under that Deed to Secure Debt and Assignment of Rent from the Authority dated July 16, 1990, and recorded in the Clerk's Office at Realty Reel 339, Page 957; (ii) assignee under that Conditional Assignment of Lease from the Authority dated July 16, 1990, and recorded in the Clerk's Office at Realty Reel 339, Page 1056; and (iii) secured party under that Security Agreement from the Authority dated July 16, 1990, hereby consents to the transactions described in this Restated CORE Agreement. Executed under seal this _ day of June, 1999. Signed, sealed and delivered in the presence of: First Union National Bank, successor to First Union National Bank of Georgia By: Unofficial Witness As its (Seal) Notary Public (Notarial Seal) A:\Amended and Restated CORE Agreement #9.wpd 22 REH JUL-07-1999 09:21 P.04/04 CONSENT SOl,1thTrust Bank, N.A. (f/kIa SouthTrust Bank of Georgia, N.A.), as grantee under that Security Deed, Sccurity Agreement and Assignment of Rent ftom the Developer dated September 26, 1996, and recorded in the elcrit's Office at ~ty Reel 535, Page 1757. hereby ccmsents to the traDsactions described in this Restated CORE Agreement and spe<:ific:ally releases Pan:el "N-2" from the lien created by the above reference insb'umenL SouthTrust Bank. N.A. acknowledges that its lien created by the above referenced instrument shall not be expanded to cover any property not already encumbered by the above referenced instrument. Executed under seal this ~ day of June, 1999. ~ . ; Signed, seale4 and delivered in the presence of: /7(c"&~~~ t5. a?c-a-... Unofficial Witness -iJJtOf20415~ Notary Publ~ Nolill'Y PI/blie. Richmond County, C.......', My Commission Expires April 26. 2COJ (NlJtarial Seal) South Trust Bank. N.A. BY:~ l~ . (Seal) l ; ! , : ; j! i 1 ~ i ! ; . . ! j "~"'_alIlIi ~"...,. 23 UK TOTAL P.04 CONSENT SouthTrust Bank, N.A. (f/k/a SouthTrust Bank of Georgia, N.A.), as grantee under that Security Deed, Security Agreement and Assignment of Rent from the Developer dated September 26, 1996, and recorded in the Clerk's Office at Realty Reel 535, Page 1757, hereby consents to the transactions described in this Restated CORE Agreement and specifically releases Parcel "N-2" from the lien created by the above reference instrument. SouthTrust Bank, N.A. acknowledges that its lien created by the above referenced instrument shall not be expanded to cover any property not already encumbered by the above referenced instrument. Executed under seal this _ day of June, 1999. Signed, sealed and delivered in the presence of: SouthTrust Bank, N.A. By: As its Unofficial Witness (Seal) Notary Public (Notarial Seal) A:\Amended and R....ted CORE Agreement #9. wpd 23 REH "''''''l,cy; "'...yu", Ld "-L~rll"UflU "'ur"-LfI-L~ U'i:1 L-Lvrl j .' {UO O~I ~OIOj-'--'--'-j -Jdll- l.j- 0101 !::i; 4!::i; t-'age d.ld. NO.1oo P002 01/11/'39 18:06 .' .- -".,~. . ....';Obl., -r .11. ! ..,...,/ U.S. DEP ARnotENT OF HOUSING ANO URBAN OEVELOPMENT WASHINGTON. O.C. ~1o. 7000 ~a (J$ ~ ASSlSTAHT SftIWTAA'fRjA ~ITYP\NHICl.ue~ Mr. Charlie R, Oliver, PE CPA Administrator Room 30 I . Municipal Building 530 Greene Street Augusta, GA 30911 JANII~ Oear Mr. Oliver: Subject: UDAG No. B-87-AA~ IJ.0095 Riverfront Augusta $7,SOO,OOO Thil letter is to inform you that your recent request to amend the repayment ana reuse of UDAG funds is acceptable to the Depanment of Housina and Urban Development. We unders1and that the developer of Riverfront Augusta plans an expansion of the existing cOllVcntion center in tandem with the proposed Radisson Hotel, also adjact:nt to the convention center. ,I To conclude, HUD concurs with your request to a~ep( $3.15 million as repayment of the full UDAG loan from th~ Riverfront Augusta developer. If you have any questions, please ~al1 (202)708-2290. W. remoUn eager to wock in partnership with you to further economi~ revitalization. V cry. sincerely yours, vJJ~~'11-'~ I ~,~ Nelson Bregon Director Office of Economic Developmenl and Empowcnnent Service Exhibit "A" . . . , . .' Exhibit "B" .....,;J ~-J)" --..;;.--- --- . 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