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Hotel Lawyers -- featured subjects and articles
Meet the Money® 2014

ADA defense and compliance

EB-5 financing

Workouts, bankruptcies & receiverships

Hotel Management Agreements

Hotel Franchise & License Agreements

Hotel industry trends

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer. Please contact me at Jim Butler at jbutler@jmbm.com or 310.201.3526.

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
18 September 2014

Hotel Lawyer: New Uniform System of Accounts will affect your hotel management and franchise agreements. Are you ready?

Commencing January 1, 2015, the hotel industry will have a new, significantly revised set of guidelines governing accounting for hotels. That is the effective date for the recently published Uniform System of Accounts for the Lodging Industry, 11th Edition (2014) (“11th Edition”). This is just one of the many things that distinguishes hotels and the hotel industry from every other class of real estate. And the new rules will have a significant impact on a number of matters in hotel management agreements.

Here is a summary of the important changes from one of our industry friends who worked on the 11th Edition, Michelle Russo of hotelAVE.

How will the 11th edition of the Uniform System

affect your management agreement?

 

By:  Michelle Russo, CEO, Hotel Asset Value Enhancement, Inc. (hotelAVE)

The AHLA issued the new 11th edition of the Uniform System of Accounts for the Lodging Industry (USALI) in July 2014.   The process took almost three years and the edition reflects the first time that ownership interests were included in the Financial Management Committee that previously comprised only operators, industry consultants, CPAs and educators.  While there are many changes from the 10th to 11th editions, this article addresses what owners and operators need to evaluate to understand the impact of the 11th edition on manager fees and performance tests.

Recommendations for Evaluating Current Agreements.

The 11th edition includes title and definition changes as well as new schedules.  For example Total Revenue is replaced with a new term called Operating Revenue.  There is also a new schedule that is reported below GOP that includes revenue not generated by the operator (including interest income, other income such as antenna lease income and cost recovery income).  You or your lawyer should determine how these changes affect base fees, incentive fees and performance tests.  Please note that these changes are effective January 1, 2015. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
16 September 2014

Click here for the latest articles on ADA Defense and Compliance.

 

The recent Uber lawsuit

On September 9, 2014, Uber Technologies was sued in Federal Court in San Francisco for violating the Americans with Disabilities Act (ADA) and California’s Unruh Act. The suit arose from the claim that UberX drivers refused to allow blind riders to bring their guide dogs. For a copy of the complaint, click here to see Natl Federation of the Blind v. Uber Technologies.

This is just the latest in an long history of complaints or enforcement actions involving the legal requirements concerning “service animals” under the ADA and corresponding state laws such as California’s Unruh Act.

Why public facilities are subject to these service animal rules

Like Uber taxis, all hotels, restaurants, spas, retail facilities, movie theatres, and sports and entertainment venues are places of public accommodation. As such, they are expressly subject to the ADA and corresponding state laws.

Because so many people ask us about the “service animal” issues, we thought it might be helpful to provide our industry friends with some guidelines on the major questions in this area through a series of frequently asked questions or FAQs about this subject.

FAQs about the ADA’s legal requirements for service animals

by

Jim Butler & Marty Orlick
ADA Defense & Compliance Lawyers

 

Here are some of the most Frequently Asked Questions on service animal issues under the Americans with Disabilities Act or ADA.

What qualifies as a “service animal?”

Businesses . . . may ask only two questions of individuals regarding their service animals . . .
Under the ADA, a dog or miniature horse that “is individually trained to do work or perform tasks for the benefit of an individual with a disability” qualifies as a service animal.The “work” or “tasks” performed by a service animal must be directly related to the individual’s disability. For example, the service animal might pull a wheelchair, guide a visually impaired person, or assist an individual with psychiatric disabilities.

Comfort animals and pets are NOT service animals. Comfort animals merely provide emotional support and are not individually trained to assist with a disability.

What can you ask a customer who enters your business with an animal?

Businesses and their representatives who come in contact with the public may ask only two questions of individuals regarding their service animals: CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
7 September 2014

 

EB-5 Visas and China “Retrogression” – What’s it all about?

by

Jim Butler and Jonathan Bloch
Partners, Jeffer Mangels Butler & Mitchell LLP

In the past, when China exceeded its 7% allocation of US Immigrant Investor Visas (EB-5 visas), Chinese applicants were permitted to take advantage of unused EB-5 visas allotted to other countries. But as of the last week of August 2014, the US State Department decided that the issuance of new EB-5 visas to Chinese applicants will be frozen or “retrogress” (move backward) until October 1, 2014, when the new fiscal year starts.

At that time, a new visa quota of 10,000 EB-5 visas (for all countries) will become available for the next fiscal year through September 30, 2015. China will again be allotted only 7% of these visas but most experts expect that Chinese investors will be permitted to access visas unused by other countries in accordance with practice over the past 3 years. This means that the 10,000 visa cut-off date likely will be reached much earlier in the fiscal year ending September 30, 2015, and this may significantly affect fundraising in 2014 and 2015.

EB-5 Visas and China “Retrogression” – What it means to you

If you have a new hotel development in the pipeline and you are on the fence about EB-5 financing, now is the time to act!

Why should this latest development in EB-5 financing concern you — a mere 5 week “freeze” on the issuance of EB-5 investment visas for China? If you want to use EB-5 financing as part of your capital stack for a project in 2015, it should concern you plenty for the following reasons:

  • China has been the dominant source of EB-5 capital for the last 3 years — more than a staggering 70% of EB-5 visa applications.
  • The freeze will only affect immigrants filing I-526 applications who are born in Mainland China. Of course, over time, other countries may fill any shortfall of investors from Mainland China but that may take 2-3 years or longer to develop the EB-5 infrastructure that makes foreigners aware of the program, motivates them to immigrate to the US and provides  EB-5 “capital delivery” system (marketing agents, immigration attorneys and the like) that can match China.
  • Anything that delays, retrogresses, or threatens the certainty of EB-5 financing from China creates uncertainty that is bad for all participants in the EB-5 financing world — the Chinese investors, US developers, and the communities that benefit from the realization of new projects, new jobs for US citizens, and economic stimulus.
  • If the EB-5 issues are not fixed quickly, an irreplaceable source of financing could be lost for US developers, communities may lose the benefit of major new projects (from hotels to conference centers and port facilities), Americans will forfeit hundreds of thousands of new jobs each year, and we will lose a critical source of highly-educated, wealthy immigrant talent as America faces a critical labor shortage of skilled workers in the near future.

Based on our experience of assisting developers with EB-5 financing for more than 60 projects, we are confident that there are both short term and longer term solutions to these problems which are discussed at the end of this article. But first, we need to recap the background and setting for the EB-5 program. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
25 August 2014

Lately, it seems like everyone wants to buy — or sell — an independent hotel management company. And this may be one of the best times to do so in a long while. Here are some thoughts on this timely subject by two of our hotel lawyers who have just completed a successful sale of an independent operator.

Why this may be the time to buy or sell a hotel management company
A hot trend and five key issues
by

Guy Maisnik and Joyce Men | Hotel Lawyers

One of the hottest trends right now is buying (or selling) independent hotel management companies. The demand is coming from all directions – existing management companies, investment funds and foreign buyers. Existing management companies are scrambling for market share, economies of scale and strategic markets. Investment funds are looking for the direct control over their hotel investments through a captive management company as well as attractive economic returns that a great independent operator can achieve with limited capital investment and risk compared to hotel investment. And foreign owners share many of these goals, and see the acquisition of a hotel management company as a solid way of entering into the hotel market in the United States.

From the potential seller’s standpoint, the timing may be optimal for a sale at this point in the cycle. A management company’ sale price is typically negotiated as a multiple of earnings. Traditionally, this multiple is four to six times earnings before interest and taxes, after making adjustments for expenses that would not continue to the buyer, and deducting from the price any interest-bearing debt that the buyer assumes. However, in this market, hotel management companies with a proven track record of performance, and a high quality (sustainable) earnings stream  can command a price well in excess of six times earnings before interest and taxes with multiple suitors. The demand is there, but the process is complex.

And here are five key issues or questions you should consider before buying or selling a hotel management company. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
19 August 2014

Asians love California, particularly Southern California! They love it as a place to live, buy homes, invest, go to school, and run their businesses. In June, we talked about the close affinity between China and Los Angeles County as revealed by a new report. Now there is yet another report documenting how Asians love Orange County.

Why? The report does not tell us that, but certainly Asians are attracted to California for the same reasons they been settling here for more than a century: proximity, climate, opportunity, and the largest communities of Asians outside of Asia.

News about Asians in Orange County

Recently, Los Angeles Times reporters Anh Do and Christopher Goffard reported on a phenomenon which we at JMBM are well aware: Asians want to live, work, study and invest in Orange County, California.

JMBM has served Orange County’s Asian community for more than 30 years. From our office in Irvine, members of JMBM’s Chinese Investment Group™ and Global Hospitality Group® are active participants in Orange County’s Asian business community where we represent Asian investors, developers, business owners, as well as new residents – primarily from China – seeking to invest in California businesses and buy luxury homes in Orange County’s prestigious neighborhoods.

New Study on Asians in Orange County

The Times article cites “A Community of Contrasts”, a study published by Asian Americans Advancing Justice, and reports the following key findings: CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
18 August 2014

Today, the Hotel Lawyers in JMBM’s Global Hospitality Group announced our 25th Annual Meet the Money® conference to be held May 4-6, 2015, at the Sheraton LAX. It’s hard to believe we are marking the 25th year of getting together with our friends in the industry for a couple of days where all participants share information, meet leaders in the industry and make deals. It will be an exciting conference and if you have not joined us at Meet the Money® in the past, we hope you will come find out what all the buzz is about in 2015! If you are a regular participant, I promise that 2015 will not disappoint!

 

JMBM’s Meet the Money® marks its 25th anniversary in 2015
National Hotel Finance & Investment Conference – May 4-6, 2015 in Los Angeles

LOS ANGELES – Meet the Money®, the premier national hotel finance and investment conference will convene for its 25th annual event on May 4-6, 2015 in Los Angeles. Since 1990, the conference has connected attendees with the industry’s top executives and leaders.

“When we established Meet the Money® 25 years ago, our purpose was to provide hotel developers and owners with a forum to meet capital providers and to gain insight on debt and equity financing,” said Jim Butler, Chairman of JMBM’s Global Hospitality Group®. “This milestone signifies our continued commitment to that vision.”

Each year, Meet the Money® brings together 400 hospitality executives and capital providers to discuss the latest trends in hotel finance in a casual and lively atmosphere.  Meet the Money® 2015 will provide the latest information on hotel industry fundamentals and numerous panel discussions by the industry’s top thought leaders and innovators. The conference will include two evening receptions, two breakfasts and lunches, and plenty of networking time to meet leaders and make deals. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
4 August 2014

Frequently Asked Questions about EB-5 project financing
for new hotel development

by

Jim Butler and Jonathan Bloch
Partners, Jeffer Mangels Butler & Mitchell LLP

 

Why is there so much buzz about EB-5 financing?

In the last five years, EB-5 financing has become extremely popular in development circles and is being widely used by mainstream, institutional players including government entities such as port authorities, major hotel brands like Marriott and Hilton, and some of the largest owners of hotels and restaurants. EB-5 financing has provided low-cost, non-recourse, five to six year term financing for construction and development of new projects and offers a number of advantages to developers.

What is EB-5?

EB-5 is a provision in the United States immigration laws. It is the fifth “Employment Based” immigration provision providing expedited visa processing (hence “EB-5″). The program is a win-win-win arrangement giving wealthy immigrants the opportunity to earn a “fast-track” for a US green card if they make an investment of $500,000 or $1 million, and create a minimum of at least 10 permanent US jobs. In return, communities get the benefit of economic stimulation created by this investment and the new jobs. And developers get a valuable source of financing for new projects that is otherwise more difficult to obtain.

Is EB-5 funding available for new development and new construction?

Because foreign investor money must create NEW US jobs, construction and development projects are the normal target of EB-5 financing investment. Although the law does not restrict the nature of the investment to real estate, foreign investors have demonstrated a clear preference for real estate-related projects, particularly hotels, restaurants and resorts. EB-5 financing can also be used to add new facilities to existing ones, such as a new tower of hotel rooms, a spa, a restaurant or nightclub. And, in limited circumstances, EB-5 financing can be used to rescue a bankrupt or failing business, but this exception is difficult to use. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
30 July 2014

How should hotel developers go after EB-5 financing?

Although the EB-5 immigrant visa program has been around since 1990, the current trend of using this as a source of financing for hotel development began only three years ago. We worked on one of the first hotel EB-5 financings for the W Hotel and Residences in Hollywood, and have since worked on more than 60 EB-5 projects all over the country. Now, use of the EB-5 financing program has gone mainstream. Headline grabbers include the $400 million financing of the SLS Hotel in Las Vegas, the $100 million Ritz Carlton & JW Marriott in downtown Los Angeles and now the $1 billion Silverstein project to be built in New York City with a Four Seasons Hotel.

As a growing number of savvy hotel developers hurry to assess the EB-5 financing opportunity, they frequently receive conflicting advice as to the best way to pursue EB-5 financing. Many immigration lawyers and advisors tout the advantages of the developer forming its own regional center — basically to shave a few points off the all-in cost of EB-5 financing.

Although this advice may work well for the EB-5 advisors (in that they get $100,000 or more of fees), for most of the hotel developers we know, forming a captive regional center is a bad idea. This article should provide a note of caution for developers considering this course.

Based on our extensive experience with financing hotel development from EB-5 funding sources, we believe that the answer for most hotel developers will be to obtain “preferred” status for themselves and their projects — if they can do so — and to tap into the very best established EB-5 funding sources.  For more on this approach, see “Hotel development financing: How to win the race for EB-5 capital.CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
29 July 2014

A viable source of capital and now mainstream

The EB-5 Immigrant Investment Visa program offers an alternative means of raising capital for hotel development projects in the U.S., and the lawyers in JMBM’s Global Hospitality Group® and Chinese Investment Group™ have worked on more than sixty EB-5 projects all over the United States.

Over just the past 3 years, the EB-5 program has quickly gained the support of some of the largest, institutional-quality developers as well as major hotel brands. Perhaps a bit late, many developers have recently noticed the significant capital being raised through EB-5 and they are scrambling to catch up with those already far down the track.

Looming problem of limited bandwidth

Fortunately, EB-5 capital remains abundantly available. But unfortunately, there is limited bandwidth to tap into it. As a result, the competition of developers for access has become quite intense as they seek to gain the attention of the small number of players with the track record of success to complete their capital raise, and the increasingly discerning EB-5 investors who are much more careful today on who they trust with their immigration visa investment.

Why it is important to gain “preferred” status

Not surprisingly, the hotel developers who will win this race to receive EB-5 funding for their projects will be “preferred” hotel developers in every sense – preferred as to the excellence of the track record and experience of the developer, the quality of the project, the structure of the deal to satisfy EB-5 investor requirements and protect the developer, the experience and relationships with Regional Centers and sales teams, and experienced Counselors to advise on every aspect of the project.

The JMBM Global Hospitality Group® helps high quality developers with great projects achieve this “preferred” status and win the race for EB-5 capital. Some background on which developers and deals will be successful in raising EB-5 capital may be helpful in order to understand the importance of planning, structuring and positioning necessary to obtain the best result. CONTINUE READING →

Published on:

Hotel Lawyers | Authors of www.HotelLawBlog.com
25 July 2014

EB-5 financing has gone mainstream for hotel development

The use of EB-5 financing has exploded over the past 3 years as an important funding source for new hotel development. It is clearly now part of the “mainstream” being used with great success by increasingly institutional companies. Marriott was among the earliest advocates for the program and has used it for many high profile hotels such as the Ritz-Carlton/JW Marriott and Marriott Courtyard/Residence Inn hotels in DTLA. But more recently, other major brands have come on board and encourage developer use of EB-5 financing.

As lawyers who have worked on more than 60 EB-5 projects all over the country, we have noticed that everyone who investigates EB-5 financing wants answers to 5 big questions about the EB-5 financing opportunity for their project. It should come as no surprise that most of our EB-5 projects involve financing for new hotel development, because hotels are the most popular type of project for EB-5 investors and we have one of the most prominent hotel law practices in the world. However, our team has also successfully used EB-5 financing for a number of non-hotel projects including senior living, restaurants and solar farms.

The 5 questions every hotel developer is asking
about EB-5 financing

by
Jim Butler and Jonathan Bloch

In seeking to access EB-5 financing, our developer clients have asked a lot of questions, but most of them can really be summed up in the following 5 questions:

1. Will EB-5 work for me on my project?
2. How much money can I get?
3. How much will it cost?
4. How long will it take?
5. How can I get certainty of execution?

CONTINUE READING →