Design, Development and Construction. (a) MRI or its Affiliates shall have sole responsibility and authority with respect to the Master Plan, and MRI agrees to use all commercially reasonable efforts to attempt (or to cause its Affiliates to attempt) to obtain, as expeditiously as possible, all required Master Plan Approvals for the Parcel and the Property. MRI or its Affiliates, in consultation with ▇▇▇▇ Sub, shall prepare and submit all applications for all necessary Master Plan Approvals and shall thereafter prosecute such applications diligently to completion. MRI shall keep ▇▇▇▇ Sub fully advised on a regular basis with respect to all aspects of the Master Plan Approvals. Any material changes to the engineering, design and/or composition of the Initial Master Plan Improvements shall be subject to the reasonable approval of ▇▇▇▇ Sub. MRI and its Affiliates shall have responsibility for and shall diligently complete or cause to be completed the construction of all Master Plan Improvements and Government Improvements in such a manner as to minimize any inconvenience in or disruption to the construction or operation of the Facility upon the Property. MRI and its Affiliates shall cause all Government Improvements and those components of the Initial Master Plan Improvements more particularly described on EXHIBIT C-2 attached hereto and incorporated herein by this reference to be completed on or before the date not less than thirty (30) days before the scheduled opening of the Facility to the public. The obligations of MRI or its Affiliates under this Section 4.2(a) shall be expressly referenced in the Memorandum of Agreement to be recorded as more particularly provided in Section 14.22 hereof. (b) Upon conveyance of the Property to the Joint Venture, the Joint Venture shall become obligated to pay or reimburse MRI or its Affiliates for (i) all Government Improvement Costs and all Master Plan Improvement Costs relating to the Initial Master Plan Improvements (except to the extent of any Excess Master Plan Improvement Costs which are the sole obligation of MR Sub as more particularly provided in Section 3.3(c) hereof) which are for the sole use or benefit of the Property; and (ii) its Allocable Share of all Government Improvement Costs, and of all Master Plan Improvement Costs relating to the Initial Master Plan Improvements (except to the extent of any Excess Master Plan Improvement Costs, which shall be the sole obligation of MR Sub as more particularly provided herein), which are partially for the use of or partially benefit the Property, whether such costs are incurred prior to or following conveyance of the Property to the Joint Venture. Following conveyance of the Property to the Joint Venture, the Joint Venture shall also become obligated to pay or reimburse MRI or its Affiliates for the Allocable Share of all reasonable costs and expenses relating to the operation, maintenance, repair and necessary replacements of all Government Improvements, and of the Initial Master Plan Improvements, except to the extent of any costs of operation, maintenance, repair or replacement that are required due to the negligence or willful misconduct of MRI or its Affiliates or their respective employees, agents or contractors, or to the extent the cost of such operation, maintenance, repair or replacement is paid by any third party, including without limitation, any insurance or bonding company or any other person or business entity. Notwithstanding the foregoing, the Joint Venture shall not have any responsibility for any Master Plan Improvement Costs or for any costs or expenses relating to the operation or maintenance of any Master Plan Improvements other than those relating to the Initial Master Plan Improvements unless ▇▇▇▇ Sub agrees in writing to share in any such costs or expenses. (c) Except to the extent provided in Section 3.3(c) hereof, MR Sub shall be responsible, at its sole cost and expense and not as an expense of the Joint Venture, for any Excess Master Plan Improvement Costs. MR Sub shall pay such amount as an additional capital contribution to the Joint Venture, as more particularly provided in Section 3.3(c) hereof. (d) Except as provided in Section 4.2(a) hereof and in Sections 4.4 and 9.2 hereof, the Managing Venturer shall have the responsibility and authority for supervising the design, development and construction of the Facility. Managing Venturer shall (i) prepare or cause to be prepared all necessary preliminary plans and architectural, engineering, design and construction drawings and other construction documents for the Facility, (ii) arrange for the Joint Venture to obtain a construction contract from a reputable and qualified general contractor or a construction management agreement from a reputable and qualified construction management firm, (iii) engage on behalf of the Joint Venture other reputable and qualified contractors or subcontractors, architects, engineers, designers and other professionals for the design, development and construction of the Facility, and (iv) in consultation with MR Sub, prepare, submit and prosecute diligently to completion, applications for all necessary pre-construction permits and approvals for the Facility, including without limitation a CAFRA permit. Managing Venturer shall prosecute construction of the Facility in such a manner as to minimize any inconvenience in or disruption to the construction or operation of the Initial Master Plan Improvements. Prior to conveyance of the Property to the Joint Venture, MR Sub agrees to execute any and all documents, instruments or consents necessary to enable the Managing Venturer to apply for and obtain any such permits and approvals for the Facility. The Managing Venturer shall keep the other Venturer fully advised on a regular basis with respect to all aspects of the design, permitting, development and construction of the Facility. (e) Without the consent of each Venturer, which consent shall not unreasonably be withheld or delayed, Commencement of Construction of the Facility shall not occur prior to the closing of the Construction Financing but shall occur as promptly as practicable thereafter. If Commencement of Construction of the Facility has not occurred by the first anniversary of the earlier to occur of (i) the date of the Commencement of Construction of the MRI Casino Project by MRI or its Affiliate, provided that such construction shall at all times thereafter proceed with diligence and in a timely manner, or (ii) the date the Property is contributed to the Joint Venture in accordance with and satisfaction of all of the terms and conditions of this Agreement; subject, in both cases, to any delays in the Commencement of Construction of the Facility attributable to factors beyond ▇▇▇▇ Sub's reasonable control, including, without limitation, any delays by MRI or MR Sub in obtaining the Master Plan Approvals, any delays in the Joint Venture's obtaining any and all required consents, permits, licenses and approvals necessary to construct the Facility (which delays are not caused by any fault on the part of ▇▇▇▇ Sub), or the inability of the Joint Venture to obtain Construction Financing upon the terms and conditions provided in Section 4.1 hereof (but which factors shall not include any lack of financial resources that prevents ▇▇▇▇ Sub from contributing any amount required by Section 3.3 hereof), for all of which delays the foregoing time period shall be automatically extended for a period of time equal to the corresponding delay, either Venturer may, by written notice to the other Venturer delivered within 60 days after such date, elect to dissolve the Joint Venture as provided in Article 13 hereof. In the event of a dissolution of the Joint Venture pursuant to the terms and conditions of this Section 4.2(e), which dissolution is not subject to any dispute between the Venturers (or which dissolution, in the event of such dispute, is finally determined by a judicial tribunal to have been authorized pursuant to the express terms and conditions of this Section 4.2(e)), ▇▇▇▇ shall pay MR Sub, from ▇▇▇▇'▇ funds and not from the assets of the Joint Venture, a termination fee of $2,000,000. (f) ▇▇▇▇ Sub shall diligently cause to be completed the construction of the Facility in accordance with the Program, as the same may be modified pursuant to the terms hereof, and shall cause the Facility to open to the public as expeditiously as possible. The Venturers acknowledge that the Tri-Party Agreement establishes a deadline for the completion of construction of the Facility. Subject to a Force Majeure Event, ▇▇▇▇ Sub agrees to cause the Facility to be completed on or before the date forty-one (41) months following the Commencement of Construction of the Facility. The Venturers agree to document the date of the actual Commencement of Construction of the Facility, in writing, for purposes of this Section 4.2(f). The foregoing completion date shall be subject to extension for delays caused by force majeure, which shall include an act of God, sabotage, strike, labor dispute, lock-out or other industrial disturbance not caused by any act or omission of ▇▇▇▇ Sub, act of the public enemy, war, blockade, riots, lightening, fire, flood, explosion, order or acts of military or civil authority, failure to timely receive necessary governmental approvals, so long as such an event is not caused by an act or omission of ▇▇▇▇ Sub, and any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of ▇▇▇▇ Sub (a "Force Majeure Event"). In the event MR Sub shall elect to become Managing Venturer pursuant to Section 9.3(a)(vi) as a result of ▇▇▇▇ Sub's failure to complete construction of the Facility in the time specified in this Section 4.2(f), MR Sub shall use all reasonable efforts to complete the construction of the Facility on or before the deadline specified in the Tri-Party Agreement. In addition, upon any such election by MR Sub, ▇▇▇▇ Sub and MR Sub shall promptly determine, using reasonable, good faith best efforts, the anticipated cost to complete the construction of the Facility, and MR Sub shall be responsible for any and all Project Costs that exceed such estimated amount. (g) MRI shall have the responsibility and authority to negotiate a project agreement with the South Jersey Building and Construction Trades Council on behalf of all developers within the Parcel. Such negotiation shall be conducted by a committee chaired by a representative of MR Sub and on which ▇▇▇▇ Sub shall be represented by its most senior in-house construction official.
Appears in 1 contract
Sources: Joint Venture Agreement (MGM Mirage)
Design, Development and Construction. (a) MRI or its Affiliates shall have sole responsibility and authority with respect to the Master Plan, and MRI agrees to use all commercially reasonable efforts to attempt (or to cause its Affiliates to attempt) to obtain, as expeditiously as possible, all required Master Plan Approvals for the Parcel and the Property. MRI or its Affiliates, in consultation with Boyd ▇▇▇▇ Sub, shall prepare and submit all applications for all necessary Master Plan Approvals and shall thereafter prosecute such applications diligently to completion. MRI shall keep ▇Boyd ▇▇▇ Sub fully advised on a regular basis with respect to all aspects of the Master Plan Approvals. Any material changes to the engineering, design and/or composition of the Initial Master Plan Improvements shall be subject to the reasonable approval of Boyd ▇▇▇▇ Sub. MRI and its Affiliates shall have responsibility for and shall diligently complete or cause to be completed the construction of all Master Plan Improvements and Government Improvements in such a manner as to minimize any inconvenience in or disruption to the construction or operation of the Facility upon the Property. MRI and its Affiliates shall cause all Government Improvements and those components of the Initial Master Plan Improvements more particularly described on EXHIBIT Exhibit C-2 attached hereto and incorporated herein by this reference to be completed on or before the date not less than thirty (30) days before the scheduled opening of the Facility to the public. The obligations of MRI or its Affiliates under this Section 4.2(a) shall be expressly referenced in the Memorandum of Agreement to be recorded as more particularly provided in Section 14.22 hereof.
(b) Upon conveyance of the Property to the Joint Venture, the Joint Venture shall become obligated to pay or reimburse MRI or its Affiliates for (i) all Government Improvement Costs and all Master Plan Improvement Costs relating to the Initial Master Plan Improvements (except to the extent of any Excess Master Plan Improvement Costs which are the sole obligation of MR Sub as more particularly provided in Section 3.3(c) hereof) which are for the sole use or benefit of the Property; and (ii) its Allocable Share of all Government Improvement Costs, and of all Master Plan Improvement Costs relating to the Initial Master Plan Improvements (except to the extent of any Excess Master Plan Improvement Costs, which shall be the sole obligation of MR Sub as more particularly provided herein), which are partially for the use of or partially benefit the Property, whether such costs are incurred prior to or following conveyance of the Property to the Joint Venture. Following conveyance of the Property to the Joint Venture, the Joint Venture shall also become obligated to pay or reimburse MRI or its Affiliates for the Allocable Share of all reasonable costs and expenses relating to the operation, maintenance, repair and necessary replacements of all Government Improvements, and of the Initial Master Plan Improvements, except to the extent of any costs of operation, maintenance, repair or replacement that are required due to the negligence or willful misconduct of MRI or its Affiliates or their respective employees, agents or contractors, or to the extent the cost of such operation, maintenance, repair or replacement is paid by any third party, including without limitation, any insurance or bonding company or any other person or business entity. Notwithstanding the foregoing, the Joint Venture shall not have any responsibility for any Master Plan Improvement Costs or for any costs or expenses relating to the operation or maintenance of any Master Plan Improvements other than those relating to the Initial Master Plan Improvements unless ▇Boyd ▇▇▇ Sub agrees in writing to share in any such costs or expenses.
(c) Except to the extent provided in Section 3.3(c) hereof, MR Sub shall be responsible, at its sole cost and expense and not as an expense of the Joint Venture, for any Excess Master Plan Improvement Costs. MR Sub shall pay such amount as an additional capital contribution to the Joint Venture, as more particularly provided in Section 3.3(c) hereof.
(d) Except as provided in Section 4.2(a) hereof and in Sections 4.4 and 9.2 hereof, the Managing Venturer shall have the responsibility and authority for supervising the design, development and construction of the Facility. Managing Venturer shall (i) prepare or cause to be prepared all necessary preliminary plans and architectural, engineering, design and construction drawings and other construction documents for the Facility, (ii) arrange for the Joint Venture to obtain a construction contract from a reputable and qualified general contractor or a construction management agreement from a reputable and qualified construction management firm, (iii) engage on behalf of the Joint Venture other reputable and qualified contractors or subcontractors, architects, engineers, designers and other professionals for the design, development and construction of the Facility, and (iv) in consultation with MR Sub, prepare, submit and prosecute diligently to completion, applications for all necessary pre-construction permits and approvals for the Facility, including without limitation a CAFRA permit. Managing Venturer shall prosecute construction of the Facility in such a manner as to minimize any inconvenience in or disruption to the construction or operation of the Initial Master Plan Improvements. Prior to conveyance of the Property to the Joint Venture, MR Sub agrees to execute any and all documents, instruments or consents necessary to enable the Managing Venturer to apply for and obtain any such permits and approvals for the Facility. The Managing Venturer shall keep the other Venturer fully advised on a regular basis with respect to all aspects of the design, permitting, development and construction of the Facility.
(e) Without the consent of each Venturer, which consent shall not unreasonably be withheld or delayed, Commencement of Construction of the Facility shall not occur prior to the closing of the Construction Financing but shall occur as promptly as practicable thereafter. If Commencement of Construction of the Facility has not occurred by the first anniversary of the earlier to occur of (i) the date of the Commencement of Construction of the MRI Casino Project by MRI or its Affiliate, provided that such construction shall at all times thereafter proceed with diligence and in a timely manner, or (ii) the date the Property is contributed to the Joint Venture in accordance with and satisfaction of all of the terms and conditions of this Agreement; subject, in both cases, to any delays in the Commencement of Construction of the Facility attributable to factors beyond Boyd ▇▇▇▇ Sub's reasonable control, including, without limitation, any delays by MRI or MR Sub in obtaining the Master Plan Approvals, any delays in the Joint Venture's obtaining any and all required consents, permits, licenses and approvals necessary to construct the Facility (which delays are not caused by any fault on the part of Boyd ▇▇▇▇ Sub), or the inability of the Joint Venture to obtain Construction Financing upon the terms and conditions provided in Section 4.1 hereof (but which factors shall not include any lack of financial resources that prevents ▇Boyd ▇▇▇ Sub from contributing any amount required by Section 3.3 hereof), for all of which delays the foregoing time period shall be automatically extended for a period of time equal to the corresponding delay, either Venturer may, by written notice to the other Venturer delivered within 60 days after such date, elect to dissolve the Joint Venture as provided in Article 13 hereof. In the event of a dissolution of the Joint Venture pursuant to the terms and conditions of this Section 4.2(e), which dissolution is not subject to any dispute between the Venturers (or which dissolution, in the event of such dispute, is finally determined by a judicial tribunal to have been authorized pursuant to the express terms and conditions of this Section 4.2(e)), Boyd ▇▇▇▇ shall ll pay MR Sub, from Boyd'▇ ▇▇▇▇'▇ funds ds and not from the assets of the Joint Venture, a termination fee of $2,000,000.
(f) ▇Boyd ▇▇▇ Sub shall diligently cause to be completed the construction of the Facility in accordance with the Program, as the same may be modified pursuant to the terms hereof, and shall cause the Facility to open to the public as expeditiously as possible. The Venturers acknowledge that the Tri-Party Agreement establishes a deadline for the completion of construction of the Facility. Subject to a Force Majeure Event, ▇Boyd ▇▇▇ Sub agrees to cause the Facility to be completed on or before the date forty-one (41) months following the Commencement of Construction of the Facility. The Venturers agree to document the date of the actual Commencement of Construction of the Facility, in writing, for purposes of this Section 4.2(f). The foregoing completion date shall be subject to extension for delays caused by force majeure, which shall include an act of God, sabotage, strike, labor dispute, lock-out or other industrial disturbance not caused by any act or omission of Boyd ▇▇▇▇ Sub, act of the public enemy, war, blockade, riots, lightening, fire, flood, explosion, order or acts of military or civil authority, failure to timely receive necessary governmental approvals, so long as such an event is not caused by an act or omission of Boyd ▇▇▇▇ Sub, and any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of ▇Boyd ▇▇▇ Sub (a "Force Majeure Event"). In the event MR Sub shall elect to become Managing Venturer pursuant to Section 9.3(a)(vi) as a result of Boyd ▇▇▇▇ Sub's failure to complete construction of the Facility in the time specified in this Section 4.2(f), MR Sub shall use all reasonable efforts to complete the construction of the Facility on or before the deadline specified in the Tri-Party Agreement. In addition, upon any such election by MR Sub, ▇▇▇▇ Sub and MR Sub shall promptly determine, using reasonable, good faith best efforts, the anticipated cost to complete the construction of the Facility, and MR Sub shall be responsible for any and all Project Costs that exceed such estimated amount.
(g) MRI shall have the responsibility and authority to negotiate a project agreement with the South Jersey Building and Construction Trades Council on behalf of all developers within the Parcel. Such negotiation shall be conducted by a committee chaired by a representative of MR Sub and on which ▇▇▇▇ Sub shall be represented by its most senior in-house construction official.Party
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