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O-10685
J-89-590 7/31/89 ORDINANCE NO. __10G85_ AN ORDINANCE, WITH ATTACHMENT, AMENDING THE FUTURE LAND USE MAP OF ORDINANCE NO. 10544, AS AMENDED, THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN 1989-2000, FOR PROPERTY LOCATED AT APPROXIMATELY 3490 AND 3500 MAIN HIGHWAY, MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN), BY CHANGING THE DESIGNATION OF THE SUBJECT PROPERTY FROM RESTRICTED COMMERCIAL AND SINGLE-FAMILY RESIDENTIAL TO MAJOR PUBLIC FACILITIES, TRANSPORTATION AND UTILITIES; MAKING FINDINGS; INSTRUCTING THE CITY CLERK TO TRANSMIT A COPY OF THIS ORDINANCE TO THE AFFECTED AGENCIES; AND PROVIDING A REPEALER PROVISION, SEVERABILITY CLAUSE AND EFFECTIVE DATE. WHEREAS, the Miami Planning Advisory Board, at Its meeting of June 8, 1989, Item No. 1, following an advertised hearing adopted Resolution No. PAB 21-89, by a 7 to 0 vote, RECOMMENDING APPROVAL of an amendment to the Future Land Use Map of Ordinance No. 10544, as amended, the Miami Comprehensive Neighborhood Plan 1989-2000, as hereinafter set forth; and WHEREAS, the City Commission after careful consideration of this matter deems It advisable and In the best Interest of the general welfare of the City of Miami and Its inhabitants to grant this Comprehensive Plan change as hereinafter set forth; and WHEREAS, it is found that the general approval of this amendment will be in the best Interest of the citizens and the City Commission is desirous of protecting the surrounding residential district from even minimal negative traffic Impact and the City Commission has requested and the applicant has agreed to certain additional conditions which shall be embodied in a Voluntary Declaration of Restrictive Covenants proffered by said applicant; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: t ' t�"i7 �' C's �� ~� � r� � � � • T � y' 106851, AWN Section 1. The Future Land Use Map of Ordinance No. 10544, z as amended, the Miami Comprehensive Neighborhood Plan 1989-2000, Is hereby amended by changing the designation of that certain e parcel of property located at approximately 3490 and 3500 Main Highway, Miami, Florida, more particularly described In the attached legal descriptions marked as Exhibit A and made a part hereof, from Restricted Commercial and Single-Famlly Residential to Major Public Facilities, Transportation and Utilities. Section 2. It is hereby found that this Comprehensive Plan designation change: a. is necessary due to changed or changing conditions; i, b. Involves a residential land use of 5 acres or less and a density of 5 units per acre or less or Involves other land use categories, singularly or In combination with residential use, of 3 acres or less and does not, In combination with other changes during the last year, produce a cumulative effect of having changed more than 30 acres; C. the property which is the subject of this amendment has not been the specific subject of a Comprehensive Plan change within the last year; i d. the herein amendment does not Involve the same owner's property within 200 feet of property provided a Comprehensive Plan change within the last 12 months; and e. will be non -disruptive of the character of the neighborhood upon the basis of a covenant by the Cabinet of the State of Florida guaranteeing preservation of the neighborhood's character. Section 3. The City Clerk Is hereby directed to transmit a copy of this Ordinance Immediately upon approval of first reading to Thomas Pelham, Secretary, Florida Department of Community -2- 1®685+ Affairs, 2740 Centervlew Drive, Tallahassee, Florida 32399-2100, for 90 day review and comment. Section 4. All ordinances, code sections, or parts thereof In conflict herewith are hereby repealed Insofar as they are In conflict. Section 5. Should any part or provision of this Ordinance be declared by a court of competent jurisdiction to be Invalid, the same shall not affect the validity of this Ordinance as a whole. Section 6. This Ordinance shall become effective forty-five (45) days after final reading and adoption hereof, pursuant to law. PASSED ON FIRST READING BY TITLE ONLY this _ 31st __ day of Jules,----_ 1989. PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY this __14th____ day of _December ....... 1989. P -------------- ------------- XAVIER L, S AREZ, MAYOR ATT -0_q ----- ------------- MATIRAI CITY CLERK PREPARED AND APPROVED BY: ADRIENNE L. FRIESNER ASSISTANT CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: JO GE L. FE NANDEZ CITY ATTORN Y �� ALF/dot/M501 -3- 1068Jr; EXHIBIT A rrr LERAL DESCRIMON alp PLAYHOUSE PROS " IIIIIINIIIIIIIIIIIIIIIININIIIINIIIIIflilllilil The East One Hundred and Forty (140) feet of the North One Hundred Seventeen (117) feet and the East Fifty -Two and One -Half (52.50) foot of Block Twenty -Nine (29) LESS the North One Hundred Seventeen (117) feet of FROW HOMESTEAD, according to the plat thereof recorded in Plat Book "S,'at Page 106, of the Public Records of Dade County, Florida. Also- describad as: - The North 117 feet of the East 140 feet AND the seat 52.5 feet, LESS the North 117 feet thereof, of those certain un-numbered Lots Block 29 as the same is shown on the AMENDED PLAT OF FROW HOMESTEAD, according to the plat thereof recorded in Plat Book "B" at Page 106 of the Public Records of Dade County, Florida. .(�� AND A portion of Lot Tan (101Lpf_MUNROE'S SUBDIVISION ,&a per the plat thereof recorded int Plat Book)"D", at Page 253 of the Public Records of Dade County;_TNU A , lying Northwesterly of Ingraham Highway (now known as Main Highway). AND A portion of Lot 2 of ENGLE SUBDIVISION, according to the plat thereof recorded in Plat Book 64 at Page 43 of the Public records of Darla County, Florida. AND A portion of Tract "B" of ENGLE SUBDIVISION, according to the plat thereof, recorded in Plat Book 64, at Page 43 of the Public Records of Dade County, Florida, being more particularly described as followst BEGIN at the most South9rly corner of Tract "B'" of tNGLr SUBDIVIv .SION, according to' the plat thereof, recorded in Plat Book 64 at. Page 43 of the Fvblic Records of Dads County, Florida, satk cor- nor being on the Northwesterly Right -Of -Way boundary of Main Highway; thence run North?25*44 45" East along the last described line for a distance oft2.90 feet to the point of curvature of_a curve concave to the Southeast having a radius of 745'_fsat; thence run Northeasterly along the are of said curve, being along the Northwesterly Right -Of -Way boundary of said Main Highway, I being co&ncident with the Souther tat-ly boundary of said Tract "8", through.& central angle of(0 14 03", for a distanc4"35.06- feat to a point, said point bearing North 57'01'12" West from the center of said curve;, thence run North 59'18'13" West for -A dis- tance of 63.10 feet to a point; thence run South 29'45'03" West for a distance of 27.96 feet to a point; thaace run South 570 49' 50" West far a distance of 5.70 filet to a point; thence run North 33.32'52" West for a distance of 6.57.feet to a•poinc; thence run South 58'13'39" West for a distance of 9.63 feet to a point of intersection with the Southwesterly boundary of said Trsct "B", said boundary being coincident with the Northeasterly boundary of Lot Ten (10) of MUNROE"S SUDBDIVISION, as per the Plat thereof recorded in7Plat Book D, at Page 253 of the Public Records of Dade County, Florida; Thence North 45'01'30" West, along said Southwesterly boundary of Tract "B"; fora distance of 82.18 feet; thence North 59.06'56" East for a distance of 21.39 feet; thence North 45*01' 30" West, along a line that is pecal- 161 to the Northeasterly boundary of said Lot Ten (10), for a distance. of 60.40 fast -,-thence South 59*35' 12" West for a dis- tance of 21.44 feet; thence North 45.01' 30" West, along the Northeasterly boundary of said Lot Ten (10) for a distance of 6.30 feet; to a point on the next described curve, said point bearing South 40•54' 34" East from the center of said curve; thence Southwesterly and Westerly along a circular.- curve to the right having a radius of 25.00 feet and a central Ingle of 40.'57' 38for an are distance of 17.85 feet to a Point of Curvature, said point being on the South Right -Of -Way line of Williams Avenue; thence North 89`56' 56" West, along said South Right -Of - Way line Williams Avenue, for a distance of 146.0,1 fact; thence South 00'03' 01" East for a distance of 117.04 feet; thence South 89*44' 22" East for a distance of 87.50 feet; thence South 00•01' 09" West for a distance of 117.90 feet; thence South 89043' 03" East, along the North Right -Of -Way line -of Charles Avenue for a distance of 52.41 feet; thence South 89*50' 01" East, along the North Right -Of -Way line of Charles Avenue (formerly known as Evangelist Street) for a distance of 150.85 feet; thence North 28' 49' 45" East, along a line that is parallel with and 10 feet Northwesterly of, the City Monument Line on Ingraham Highway (now known as Main Highway) for a distance of 83.04 feet; thence North 10685, 45*01' 30" West, along the Northeasterly boundary of said Lot Ten (10) for a distance of 12.50 feet to .tha point of beginning con- taining 57345 square fact more or less or 1.316 acres more or 10", less. Lying within the City of Miami, Dade County, Florida. am�{, LEGAL. DESirC__R__IP__T__ION TT t PPIENISTS A portion of Lot 2 and Tract "B" of ENCLE SUBDIVISION, according to the plc r thessoi as recorded in Plat Book 64 at Page 43 of the Public Records of Dade County, Florida; AND all axcapt the South or Southeast 53 feet 10 1/2 inches of Lots 73 and 74 De HEDOUVILLE'S SUBDIVISION, according to the plat thereof as re- corded in Plat Book "B" at Pags 150 of the Public Records of Dade County, Florida. AND a portion of Lot Tan (10) of MUNROE'S SUB- DIVISION according to the plat thereof as recorded in Plat Book "D" at Page 253 of the Public Records of Dade County, Florida, Lying Northwesterly of Ingraham Highway (now known as Main Highway), being more particularly described as followss Begin at the ppoint of intersection of the Northeasterly boundary of Lot Tan (10) of MUNROE'S SUBDIVISION, as per the Plat thereof, recorded in Plat Book "D", at Page 253 of the Public Records of Dade County, Florida, with the Northwesterly Right -Of -Way bound- ary of Ingraham Highway (Main Highway), said point of intersec- tion being the most Southerly corner of Tract "B", ENCLE SUBDIVI- SIO, according to the plat thereof recorded in Plat Book 64 at Pag 43 of the Public Records of Dade County, Florida; Thence North 28'44' 45" East along the last described line for a dis- tance of 2.90 fast to the point of curvature of a curve, concave to the Southeast, having a radius of 745.00 feet; thence North- easterly along the are of said curve, being along the Northwesterly Right -Of -Way boundary of said Main Highway, being coincident with the Southeasterly boundary of said Tract 'B", Lot 2 and the portion of said Do HEDOUVILLE'S SUBDIVISION, through a central angle of 10 16 37", for a distance of 185.64 feet to the most Easterly corner of the said Ds HEDOUVILLE'S SUBDIVISION par- cel, said point bearing North 46'58' 38" West from the center of said curve; thence North 44.58' 00" West for a distance of 86.00 feet to a point; thence South 40.02' 00" West for a distance of 93.00 feet to a point of deflection; thence South 32013' 32.75" West for a distance of 95.40 fact to the point of intersection with South westerly boundary of said Tract "B", said boundary being coincident with the Northeasterly boundary of Tract Ten (10) of MUNROE'S SUBDIVISION, according to the plat thereof re- corded in Plat Book "D" at Page 253 of the Public Records of Dade County, Florida; Thenoa South 3r 13' 33" Ytst for a distance of 2.29 feet thence South 2B*41' 19% East for a distance oL Z9.14,fiet; thence South 30.06' 27" East for a distance dt 15.67 feet; thence South 2r 43' 39" Vast for a distance of 22.68 feet; thence South 59019' 35" Vast for a distance of 16.38 feet; thence South 300 57' 54" East for a distance of 30.13 feet; thence North 59103' 43" East for a distance of 5.65 feet; thence North 89.21' 58" 'Cast foe a distance of 8.06 feat; thence North 2B• 30' 24" East for a distance of 44.16 feet; thence North 35*SA'42" East for a distance of 11.60 fast to the point of beginning, contain- ing an area of 18,3418 square feet, more or less, lying within the City of Miami, Dade County, Florida. 10685i 27 r-. .af +�tt�xnti SERGIO RODRIGUEZ ' Director = } rw. MNi C December 18, 1989 Mr. Thomas Pelham, Secretary Florida Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399 Re: Amendments to Miami Comprehensive Neighborhood Plan 1989-2000 Dear Mr. Pelham: CESAR H. ODIO City Manager The City of Miami adopted four amendments to the Miami Comprehensive Neighborhood Plan, on December 14, 1989. This date is the second adoption period of the 1989 calendar year consistent with Chapter 163.3187(1) of the 1987 Florida Statutes. Pursuant to the requirements of Chapter 163.3184 F.S. 1987 and Rule 9J-11.011, Florida Administrative Code, I am pleased to transmit: - Four (4) copies of the Miami Comprehensive Neighborhood Plan 1989-2000 Land Use Plan Map Amendment Ordinances as adopted, including PZ-1, PZ- 2, PZ-4, PZ-10; - Four (4) copies of the "Response to Department of Community Affairs' Objections, Recommendations, and Comments to Proposed Comprehensive Plan Amendments for the City of Miami -- December 1989"; One (1) copy (for reference purposes only) of the support documents on which recommendations are based. As directed in Mr. Paul Bradshaw's letters of November 6, 1989 and November 17, 1989, which transmitted the Department of Community Affairs' Objections, Recommendations, and Comments, to the subject amendments, we are forwarding one (1) copy of these transmittal documents to the Executive Director of the South Florida Regional Planning Council. If, in the 45 day review process, there are points that need clarification, you may contact Joseph McManus at (305)579-6086. Sincerellk-, I Sergio odriguez, Dilrecto1�2r-- Planni. g Department SR/vh vh/89:123 10680 Attachments 10681. PLANNING DEPARTMENT/275 N.W. 2nd Street/Miami, Florida 33128/(305) 579.6086 1068ry Mailing Address - P.O.Box 330700 / Miami, Florida 33233-0706 7 1.068s '4,t�t of t�i111. Y R SERGIO RODRIGUEZ Director -CM: .11 p December 18, 1989 Mr. B. Jack Osterholt, Executive Director South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite #140 Hollywood, Florida 33021 Re: Amendments to Miami Comprehensive Neighborhood Plan 1989-2000 Dear Mr. Osterholt: CESAR H. ODIO City Manager The City of Miami adopted four amendments to the Miami Comprehensive Neighborhood Plan, on December 14, 1989. This date is the second adoption period of the 1989 calendar year consistent with Chapter 163.3187(1) of the 1987 Florida Statutes. Pursuant to the requirements of Chapter 163.3184 F.S. 1987 and Rule 9J-11.011, Florida Administrative Code, and the direction of the Department of Community Affairs (DCA), I am pleased to transmit to you one copy of the transmittal documents submitted to the DCA consisting of: - One (1) copy of the Miami Comprehensive Neighborhood Plan 1989-2000 Land Use Plan Map Amendment Ordinances as adopted, including PZ-1, PZ- 2, PZ-4, PZ-10; - One (1) copy of the "Response to Department of Community Affairs' Objections, Recommendations, and Comments to Proposed Comprehensive Plan Amendments for the City of Miami -- December 1989"; - One (1) copy (for reference purposes only) of the support documents on which recommendations are based. If, in the 45 day review process, there are points that need clarification, you may ;act Joseph McManus at (305)579-6086. Sincerely, Sergio godriguez, Dirbcto Planning Department SR/vh I vh/89:123a Attachments 110680 10681 PLANNING DEPARTMENT/275 N.W. 2nd Street/Miami, Florida 33128/(305) 579-6086 10683 Mailing Address - P.O.Box 330700 / Miami, Florida 33233.0706 10685 PLANNING FACT SHEET APPLICANT Board of Trustees of the Internal Improvement Fund of the State of Florida. and the City of Miami Department of Off -Street Parking: May 4, 1989 PETITION 1. APPROXIMATELY 349,0 AND 3500 MAIN HIGHWAY Unnumbered Lots, being N 117' of E 140' plus E 52.5' less N. 117' Block 29 AMENDED PLAT FROW HOMESTEAD (B-106) P.R.D.C. Lot 10 (pt. lying Northwesterly of Main Highway) MONROE SUBDIVISION (0-253) P.R.O.C. Lot 1, 2 & Tract "B" ENGLE SUBDIVISION (64-43) P.R.D.C. Lot 73 (pt.) DE HEDOUVILLE'S SUB (B-150) P.R.D.C. (Legal Description on file with the Hearing Boards Office, Building and Zoning Department) Consideration of amending Ordinance 10544, the Miami Comprehensive Neighborhood Plan 1989-2000, Future Land Use Plan Map by changing the land use designation of the subject property from Restricted Commercial and Single -Family Residential to Major Public Facilities, Transportation and Utilities; and recommending that said amendment be transmitted to the Florida Department of Community Affairs. REQUEST To change the plan designation of the Coconut Grove Playhouse and abutting property from Restricted Commercial and Single -Family Residential to Major Public Facilities, Transportation and Utilities. ANALYSIS These properties comprise the Coconut Grove Playhouse at the intersection of Charles Avenue and Main Highway, including property fronting on Main Highway almost to the alley and an "L" shaped parcel to the west now designated single- family. 10 8s PAB 6/8/89 Item #1 Page 1 of The intent of the "Major Public Facilities, Transportation and Utilities" category is to accommodate the development of major concentrations of national, state and local government activities, as well as major public health or educational facilities. Ownership of the Playhouse property lies with the State of Florida and Offstreet parking Department; the Department of Off -Street Parking has proposed a parking garage and artist's workshop to complement the playhouse. This change would be consistent with policies that encourage commercial and office development in the Coconut Grove Village Center, which in this vicinity, lies northwesterly of Main Highway extending as far west as McDonald Street (extended). The requested change would be in accord with the established land use pattern, would be in side sealed with the needs of the city. Proper development of the property dictates a consistent designation; it cannot be developed under the current designation. RECOMMENDATIONS PLANNING DEPT. Approval. PLANNING ADVISORY BOARD At its meeting June 8, 1989, the Planning Advisory Board adopted Resolution Number PAB 21-89 by a 7 to 0 vote, recommending approval of the above. Three proponents and five opponents were present at the meetina. Four objections were received by mail. CITY COMMISSION At its meeting of July 31, 1989 the City Commission passed the above on First Reading. ms PAB 6/8/89 Item # 1 C;z Page 2 of 14 �I i TH0M4S r Q r ►FRAN X- R. PamppWA k*Arjr 460 AAR, =H00LE i URIC HE ULTURA FLORIDA AVE: N y AVE. a RESMLC J z o M IA a y� ;GRAN® AWF-. MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN 1989-2000 S GLE PLAN AMENDMENT LY FROM: RESTRICTED COMMERCIAL & S. F. RESIDENTIAL RES ENTIAL TO: MAJOR PUBLIC FACILITIES 10 685 PAB 6/3/ 89 AS - 46 Item #1 3 Annrnx. 3490-3500 Main HiQhwav 39. I d ILL! A,14 AVE. ■ ■ ■ ■ �'R L E S t.ANKLIN AVE; 10685, za Note: The Florida Department of Community Affair's Report on Objections, Recommendations and Comments (together with other agency comments) dated November 6 and November 17, 1989, pertaining to Items PZ-1, 2, 4, 9, 13 and 14 is included in Item PZ-1 for brevity. 10(;85 1 RESPONSE TO DEPARTMENT OF COMMUNITY AFFAIRS' OBJECTIONS, RECOMMENDATIONS, AND COMMENTS TO PROPOSED COMPREHENSIVE PLAN AMENDMENTS FOR THE CITY OF MIAMI Prepared by The City of Miami Planning Department December 1989 1©685r TABLE OF CONTENTS SECTION I Mao Amendments PZ- 4 (4/27/89)"Ormond" PZ-11 (6/22/89)"City of Miami" Text Amendments PZ-21 (6/22/89)"CBRF" PZ-22 (6/22/89)"OCA Def./L.U." SECTION II Mae Amendments PZ- 3 (7/27/89)"Gerrits" PZ-13 (7/27/89)"Coconut Grove" 10685 SECTION I Map Amendments PZ- 4 (4/27/89)"Ormond" PZ-11 (6/22/89)"City of Miami" Text Amendments PZ-21 (6/22/89)"CBRF" PZ-22 (6/22/89)"DCA Def./L.U." 10685 SECTION I DCA OBJECTIONS, RECOMMENDATIONS AND COMMENTS TO CITY OF MIAMI Comprehensive Plan Amendments EUTURE LAND USE AMENDMENTS A. OBJECTIONS Data None Analysis 1. 9J-5.005(2)(a) Map Amendment No. PZ-4 (Ormond) is not supported by an analysis of the availability of facilities and services, including traffic circulation, sanitary sewer, solid waste, drainage, and potable water, to serve the proposed land use. The information provided, stating facilities are available, is incomplete. There is no analysis to establish current and forecasted demand on existing facilities and a determination of available capacity for each facility type. Recommendation Include an analysis of current and forecasted demand for each facility type, including traffic circulation, sanitary sewer, solid waste, drainage and potable water to serve the proposed land use. The attached "Worksheet for Concurrency Management -- Impact Analysis of Proposed Change to Land Use Map" for the PZ-4 (Ormond) amendment contains an analysis of current and forecasted demand for each facility type, including traffic circulation, sanitary sewer, solid waste, drainage and potable water to serve the proposed land use. It matches these to the required adopted levels of service standards for each facility, and makes a "Concurrency Checkoff" finding. -1- WORKSHEET FOR CONCURRENCY MANAGEMENT CITY OF MIAMI PLANNING DEPARTMENT IMPACT ANALYSIS OF PROPOSED CHANGE TO LAND USE MAP .................................------..---------------------..;......................................................... AMENDMENT INFORMATION ; CONCURRENCY ANALYSIS = .......---,.---------------------------------------------:----------.........----...------------...---.......-----: Applicant: Gregg J. Ormond, Esq. (Agent) s RECREATION AND OPEN SPACE _ Address: 833-899 N,W.4 St. Popelation Increment (,000) 0.237 430 L 490 N.W. S.River Drive Space Requirement, acres 0.334 . 401.449 N.M. 9 Ave, Excess Capacity Before Change 53.97 Boundary Streets: Excess Capacity After Change 55.64 North: N.W. South River Drive Concurrency Checkoff OK ; South: N.M. 4 Street ---------------------------------------------------------; East: N.W. South River Drive POTABLE WATER TRANSMISSION ; West: N.W. 9 Avenue Popelation Increment, Residents 257 Transmission Requirement, gpd 57,568 Planning District: D. (little Havana) : Excess Capacity Before Change >2S above demand , ' Excess Capacity After Change >21 above demand Maximum LU Intensity: Concurrency Checkoff OK , Existing40 DO/acre .................... -......................... -........... Proposed 100 DU/acre SANITARY SEWER TRANSMISSION ; • : Population Increment, Residents 257 Net Increment With Change: Transmission Requirement, q � , gpd 47,545 Population 257 Excess Capacity Before Change >21 above demand Dwelling Units 100 Excess Capacity After Change >21 above demand Sq.Ft. Floor Space N.A. Concurrency Checkoff OK , : County Wastewater Collection Ione 309 ---------------------------------------------------------• STORM SEWER CAPACITY ; : Drainage Subcatchment Basin 31 E:fittration System Before Change O"ite : Solid Waste Collection Route !8 Exfiltration System After Change On -sits • Concurrency Checkoff OK Transportation Corridor Niel? (1) Civic Center :---------------------------------------------------------- • (2) Dolphin SOLID WASTE COLLECTION . Type (1) HS Population Increment, Residents 237 • (2) HS Solid Waste Generation, tons/year 329 -----------------------------------------------------------------: Excess Capacity Before Change >600 SIGNIFICANT MCNP GOALS, OBJECTIVES, POLICIES SUPPORTING AMENDMENT: Excess Capacity After Change >271 , ' Concurrency Checkoff 01 . land Use: t.1.1 -----------------------_--------------- - -• TRAFFIC CIRCULATION ; 1.1.6 Population Increment 257 Peak -Period Person -Trip Generation 283 Interpretation of Future Land Use Plan Map : LOS Before Change (1) A (2) C ' LOS After Change (1) A (2) C Housing: t.1.5 Concurrency Checkoff OK : 1.2.7 ----------------------------------------------------- - ' 1.3 ASSUMPTIONS AND COMMENTS : 1.3.1 : Population increment is assumed to be all new residents. • 1.3.2 Peat -hoer person -trip generation assumed to be 1.1 per ' resident. Potable water and wastewater transmission ; Transportation: 1.4 capacities are in accordance with Metro -Dade County 1.5.1 : stated capacities and are assumed correct. Service CIEs : connections to water and sever mains are assumed to be of: 1.2.3 : adegeata size; if not, new connections to be installed at: ' : owners expense. Transportation Corridor capacities and : LOS from Table PT-2, Data and Analysis. : ...............--...---------------------------------------...---; .......................................................... r • . il. R The City did not include an analysis of the need for proposed text Amendment PZ-21, which proposes to eliminate free-standing office and commercial buildings in the medium density multi -family residential classification, but allow free-standing medical and dental offices in the high density multi -family residential classification. An analysis of the amount of land needed to accommodate the projected population relating to types and intensities of use was not provided. R-719011 .. Demonstrate that the proposed text amendment is consistent with the existing (or revised) analysis of the amount of land needed to accommodate the projected population, including the types and intensities of use. In terms of population, Miami is expected to reach 400,000 by the year 2000. This growth is only 17,000 persons in ten years or about a 4% increase above the 1990 projection of 383,000. The City, of Miami is unique in that is is essentially built out. Only about 6.4% (from MCNP Land Use Data and Analysis) of its total area is vacant, consisting primarily of parcels smaller than one acre. In short, Miami is in a redevelopment mode; development on raw acreage is not a viable option. No analysis has ever been prepared as part of the MCNP relating the amount of land needed to accommodate the projected population; to do so would be an exercise in futility. The issue, therefore, for the City of Miami is not the amount of land or the categories and acreage of land use needed to accommodate projected populations, but, what is the appropriate mix of uses and scale of redevelopment most compatible with medium and high density residential development. At a density up to 40 dwelling units per acre in medium density residential, the intent is to accommodate a judicious limited mix of uses within cha; residential buildings at that scale. In the high density residential areas, at densities from 40 to 100 dwelling units per acre the mix of uses would accommodate free-standing hospitals and nursing homes; therefore free-standing medical and dental office buildings would also appear to be appropriate at that scale of redevelopment. The City did not include an analysis of the need for the proposed land use change for map amendments PZ-4 (Ormond) and PZ-11 (City of Miami). An analysis of the amount of land needed to accommodate the projected population, including the categories of the land use and the proposed land use densities and intensities of use, the estimated gross acreage by category and the description of the methodology used. JLOGSS - 2 - 10 Include an analysis of the proposed land use as it relates to the amount of land needed to accommodate the projected population, including the densities and intensities of use and how they meet estimated gross acreage needed by category. In terms of population, Miami is expected to reach 400,000 by the year 2000. This growth is only 17,000 persons in ten years or about a 4% increase above the 1990 projection of 383,000. The City of Miami is unique in that it is essentially built out. Only about 6.4% (MCNP Land Use Data and Analysis) of its total area is vacant, consisting primarily of parcels smaller than one acre. The issue, therefore, for the City of Miami, is not the amount of land or the categories and acreage of land use needed to accommodate projected populations, but, what population change would result from proposed changes to the Plan Map. Changes in densities resulting from changes in land use would affect the City's population growth projections. PZ-4 (Ormond): Because of Miami's unique situation, the land development needs for the City must be met primarily through the redevelopment of existing underutilized parcels and vacant tracts. The lack of large tracts of undeveloped land, furthermore, requires property development to focus primarily on the revitalization of depressed or declining areas and the stabilization and maintenance of more stable neighborhoods. One method to plan for growth is through increases in land development intensities. As the Planning Fact Sheet (Attachment 1D) indicates, future high density development and redevelopment is anticipated and expected in areas east of NW 8th Avenue, presently designated "Residential -Multifamily High Density". The subject block, west of NW 8th Avenue, if redesignated to the same "Residential - Multifamily High Density", would serve to create a larger base for this redevelopment area, increasing the chances of realizing areawide revitalization. Furthermore, because of the subject block's location diagonally opposite the Victoria Hospital, the development, brought about by redesignation, could stimulate lower intensity revitalization west of NW 8th Avenue as well. This land use change would be consistent with the pattern of similar "Residential -Multifamily High Density" areas along the Miami River Corridor. 106S& - 3 - The "Analysis of Proposed Plan Amendment" (Attachment IB) indicates that the proposed land use change, if utilized to the maximum intensity permitted under the requested zoning, would increase the potential density by 100 families or approximately 257 persons (the 1980 Census estimated 2.57 persons per family). Though an increase in intensity is permitted through this land use change, the percentage distribution of residential land use area compared to other land uses, (i.e. commercial, industrial, institutional/ public, recreational, transportation/ utilities), remains unchanged. PZ-11 (City of Miami): The density, for this parcel, has been scaled back to reflect the predominant dwelling unit type as a response to the recognition of an existing viable single family neighborhood. The present "Residential - Duplex" land use designation would allow the area to increase from its current single family density of 9du/acre to 18du/acre. At 14.5 acres, the land use change would reduce the future population projection by 130 families or 334 persons. Though a decrease in the potential intensity will result through this land use change, the percentage distribution of residential land use area compared to other land uses, (i.e. commercial, industrial, institutional/ public, recreational, transportation/ utilities), remains unchanged. The overall impact on the City from both land use amendments would be a net decrease of 30 families or 77 persons from the total projected population of 400,000 persons through the year 2000. The acreage distribution of residential land use versus other land use categories remains unchanged. None B. COMMENTS The City should take the Metro -Dade Planning Department's comments into consideration when addressing the objections to Map Amendment PZ-4 (Ormond). 10685 N HOUSING ELEMENT A. OBJECTIONS None. Analysis 1. 9J-5.010(2)(f)4. The proposed changes to the terms in the Land Use Categories for Community Based facilities in Objective 1.3 and Policies 1.3.4 and 1.3.5 are not supported by description of the need for such as they relate to the specific requirements of HB 1269. The City has not provided definitions for new Community Based Facility terms. Also, the language added to Housing Element Objective 1.3 and 1.3.4, "subject to the requirements to the Zoning Ordinance," may make the standards more restrictive for the Community Based Residential Facilities (see the South Florida Regional Planning Council comments dated September 6, 1989). Recommendation Include an analysis based on and consistent with the requirements of HB 1269 to support those changes to the Housing Element objectives, policies and land use categories and ensure that they are consistent with the intent of this law. Explain and define new terms in the Land Use Categories. Include an explanation of "subject to the requirements and limitations to the Zoning Ordinance" ensuring that this addition will not make the standards for Community Based Facilities more restrictive. (Response provided at the end of this HOUSING ELEMENT section.) Goals. Objectives and Policies Proposed text amendments to Housing Objective 1.3 and Policies 1.3.4 and 1.3.5 appear to be inconsistent with HB 1269 requirements for Community residential homes. The City changed terms for Community residential home types, however, they did not include the change in terms in Objective 1.3 and Policy 1.3.4. Also, the language in Policy 1.3.5 which states "and evaluated to determine the impact of allowing and amended, where warranted" is unclear. 10685 - 5 - 13 Include an analysis of the changes in Housing Element Objective 1.3 and Policies 1.3.4 and 1.3.5 to establish consistency with HB 1269. If the analysis reveals that the objective and policy changes are not consistent with HB 1269, then the City should make appropriate revisions to these policies to ensure they are consistent with this law. Community residential terms should be consistent between the land use categories and Housing Objective and Policy. Include clarification of language "and evaluated to determine the impact of allowing and amended, where warranted". (Response provided at the end of this HOUSING ELEMENT section.) B. COMMENTS The City should review the South Florida Regional Planning Council comments and take them into consideration when addressing the responses to the above Housing Element objections. Also, the Department encourages the City to coordinate with the South Florida Regional Planning Council in order to ensure that their concerns are resolved in regard to this matter. The DCA objections, recommendations and comments are appropriate; this proposed amendment was fashioned in May and June, 1989, and passed 1st reading June 22, 1989, to reflect the then - policy of the City Commission and before the Governor had allowed HB 1269 to become law. Recognizing that HB 1269 would become law, the City Commission adopted Ordinance 10646 (attached) on, September 28, 1989, effective October 28, 1989, which is a comprehensive amendment to Zoning Ordinance 9500 in conformity with HB 1269. The corresponding changes have now been made in PZ-21 to bring the MCNP into conformity with HB 1269. The following changes have been made in response to objections, recommendations and comments: 1. The range of Community Based Residential Facilities has been defined and brought into conformity with HB 1269. A definition of "Community -Based Residential Facilities" has been added to the Land Use Element under the interpretation of the Future Land Use Plan Map, as follows: "A community based residential facility provides room (with or without board) resident services and twenty-four hour supervision. Such a facility functions as a single housekeeping unity. This category includes adult congregate living facilities; facilities for physically disabled and handicapped persons, for developmentally disabled persons, for non -dangerous mentally ill persons and for dependent _6_ 10685 14 children, as licensed by the Florida Department of Health and Rehabilitative Services (FHRS); and residential facilities for alcohol and drug rehabilitation and juvenile and adult residential correctional facilities, including halfway houses, as licensed and approved by an authorized regulatory agency." Specific conformity to HB 1269 is now evidenced by the revised Zoning Ordinance (see Ordinance 10646 attached). The Zoning Ordinance has been amended so that community -based residential facilities, as defined, for 6 clients or less, but not including drug, alcohol or correctional rehabilitation facilities, are permitted in all residential zoning districts and that community -based residential facilities for 14 clients or less, but not including drug, alcohol or correctional rehabilitation facilities, are permitted in two family and multi family zoning districts. 2. Objective 1.3 and Policy 1.3.4 have been clarified and Policy 1.3.5 has been eliminated so that the descriptive phase "subject to the requirements and limitations of the Zoning Ordinance" has been eliminated as pertains to Community Based Residential Facilities, as follows: "Objective 1.3: Facilitate the private and public sector provision of housing in non -isolated residential areas for group homes---emd community -based residential facilities and foster care facilities (including those funded by the Florida Department of Health and Rehabilitative Services). "Policy 1.3.4: The City will continue to assist in the development of grouphecommunity-based residential facilities and foster care facilities, and ACLF's for low -and moderate -income residents through its existing housing programs 3. Policy 1.3.5 has been eliminated so evaluated to determine the impact warranted" has been also eliminated. Policy 1.3.5 read, as follows: that the descriptive phase "and of allowing and amended, where "Policy 1.3.5. The City's zoning ordinance will be reviewed and amended, where warranted, so that family homes (group homes which provide room and board, personal care, rehabilitation service, and su ervision in a family setting to be occupied by not more than eight (8� related or unrelated persons who are developmentally disabled, mentally impaired, physically handicapped or elderly) be allowed as a permitted use in all residential neighborhoods and that a group home (occupancy by nine to sixteen persons) be allowed as a permitted use in all residential neighborhoods and that a family group home (occupancy by nine to sixteen persons) be allowed as a permitted use in all residential neighborhoods other than single-family (where it shall be allowed on a special use basis).'' -7- The Zoning Ordinance has been amended so that community -based residential facilities, as defined, for 6 clients or less, but not including drug, alcohol or correctional rehabilitation facilities, are permitted in all residential zoning districts and that community -based residential facilities for 14 clients or less, but not including drug, alcohol or correctional rehabilitation facilities, are permitted in two family and multi family zoning districts. At the public hearing of the South Florida Regional Planning Council (SFRPC) on September 6, 1969, City staff orally concurred with SFRPC's comments. It is believed that all of the SFRPC concerns have been addressed. A. OBJECTIONS 1. 2J-5011(2)(c)2 d Proposed amended Policy 2.1.3 does not include a quality standard for the revised level of service for drainage. Recommendation Revise proposed amended Policy 2.1.3 (drainage level of service) to include performance standards for water quality and flood control. Appropriate local and state regulations specifying stormwater quality standards should be adopted by reference to specific regulations as they exist on the date the plan amendment is adopted as an integral part of the drainage LOS standard to measure performance of systems which are designed to remove pollutants from run-off. Appropriate regulations specifying ambient water quality standards should be referenced to protect and prevent further degradation of surface and groundwaters (by run-off). Section 9J-5.0011(2)(c)2.d cited above under A. OBJECTIONS appliies to level of service standards for potable water facilities, not drainage facilities. We believe that the citation is a typographical error, and that Section 9J5.0011(2)(02.�; was intended. The provisions of Chapter 9J-5.0011(2)(c)2 regarding level of service (LOS) standards for drainage facilities require the adoption of LOS standards for "c. Design storm frequency for drainage facilities capacity". No mention is made of water quality standards as a requirement of the drainage LOS. 1Q68S Maintenance of water quality standards for stormwater drainage is adressed in the City's Comprehensive Nieghborhood Plan in the following Goals, Objectives, and Policies of the Sanitation and Storm Sewers sub -element: Goal 2; Objective 2.2; Policies 2.2.1, 2.2.2, 2.2.3, 2.2.4, and 2.2.5. In future revisions or additions to these policies, the City will consider the DER request that water quality standards be referenced. However, the City -- - declines to include them in its adopted LOS standard at this time. B. COMMENTS The City should take the Department of Environmental Regulation's comments into consideration when addressing the above 9J-5.001 (2)(02.d objection. Although there is an implication in the revised Policy 2.1.3 that the "20% of the system brought to standard" applies to the existing drainage system, it would be helpful for clarification purposes if the revised Policy 1.2.3 [sic] was rewritten to include "20% of the existing system". The City will add the word "existing" as requested, causing the proposed amended policy to read as follows: level of seryiee itandard i3 jet at., 20Ae-percent of the existing system storm-sewe" will b designed—fer brought toa standard d of a one - in -five-year storm event by the year 2000. COASTAL MANAGEMENT ELEMENT A. OBJECTIONS Data None Analysjs 1. 9J-5.012(11. Map amendment PZ-4 (Ormond) proposes to increase density in what appears to be within the hurricane vulnerability zone. The City did not provide a reassessment of its hurricane evacuation plan in regard to the impacts resulting from this increased density, specifically, additional persons requiring evacuation, evacuation routes, and any special needs of the elderly or handicapped relating to this land use change. loses I � -9- RMILUIMMUM The City needs to include a reassessment of their Hurricane Evacuation Plan, including all items listed in the above objection as a result of the increased density by the proposed map amendment PZ-4 (Ormond). The reassessment should include impact on hurricane evacuation times. The amendment should not be adopted unless hurricane evacuation times are maintained or reduced. Map amendment PZ-4 (Ormond) is not located within the Hurricane Vulnerability zone (see attached Figure IV.2: "Hurricane Vulnerability Zone"); therefore, this Objection and Recommendation is not applicable (see map attached). Goals. Objectives. and Policies Map amendment PZ-4 (Ormond) proposes to increase from a multi -family medium density use, which allows 40 units per acre, to a multi -family high density use, which allows 40-100 units per acre. The proposed amendment is located within the vicinity of the Miami River. The map that the City included identifying the Coastal High Hazard Area is unclear; therefore, it is difficult to determine whether this land use change is located within the 9J-5.003(13) definition of the Coastal High Hazard Area, which includes the V-Zone. Recommendation The City should not encourage High Hazard Area. Include amendment PZ-4 (Ormond) is, or If this amendment is located Coastal High Hazard Area, the density. City of Miami Response increases in density within the Coastal information identifying whether map is not, located within the FEMA V-Zone. with FEMA V-Zone, which identifies the City should not allow an increase in Map amendment PZ-4 (Ormond) is not located within the Coastal High Hazard Area (FEMA V-zone -- see attached Figure IV.3: Areas Subject to Coastal Flooding and High Hazard Flood Areas:); therefore, this Objection and Recommendation is not applicable (see map attached). c (c)T . . c The proposed changes to Policy 4.1.2 to address the Coastal High Hazard Area must include the area within the V-zone and that seaward of the Coastal Construction Control Line. The City proposes only, [to] include the V-zone except on Virginia Key, which would use the Coastal Construction Control Line. -lo- osss 18 0 e e MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN' �� IIpIUIIIIUIIIIllU11111U11111; IS one mile CITY OF MIAMI PLANNING DEPARTMENT 10Fl95 PREPARATION OF THIS MAP WAS AIDED THROUGH FINANCIAL ASSISTANCE RECEIVED PROM THE STATE OF FLORIDA UNDER THE LOCAL GOVERNMENT COMPREHENSI%,- PLANNING ASSISTANCE PROORAM AUTHORIZED SY CHAPTER @#1-167LAW41 OF FLORIOA AND ADMINISTERED Pv THE FLORIDA DEPARTMENT OT CQ/AIMiNIIv niiA1` 1 V -17 C N a t s c NEIGHBORHOOD PLAN IMAM 1 COMPREHENSIVE N E , ,,10 ummmmmmmuuuiu: 10685 VIA one rniie CITY OF MIAMI PLANNING DEPARTMENT PREPARATION OF THIS MAP WAS AIDED THROUGH FINANCIAL ASSISTANCE RECEIVED FROM THE STATE OF FLORIDA UNDER THE LOCAL GOVERNMENT COMPRE14ENSI�'= PLANNING ASSISTANCE PROGRAM AUTHORIZED HV CMAPTEII 66-167 LAWS OF FLORIDA AND ADMINISTERED Pv THE FLORIDA DEPARTMENT Of COfAMUNIiv AFFAIyll i-00tl-In -41 _ 1 01 Revise Policy 4.1.2 to include all areas of the City that are within the FEMA V-Zone, including Virginia Key. (See Response provided after COMMENTS below.) B. COMMENTS The City should take the specific comments by the Department of Natural Resources into consideration when revising Coastal Management Policy 4.1.2. The only part of the City of Miami's coastline that has a designated Coastal Construction Control Line (CCCL) is the Atlantic Ocean coast of Virginia Key; therefore, that coastline was specifically identified in the proposed amended Policy 4.1.2. It appears, however, that the wording as proposed by the City is not clear to those who might be unaware of this local situational fact. Therefore, the City will revise the proposed amended Policy 4.1.2 to make clear that the FEMA 'Y' zone aplies to all the City's coastline except on Virginia Key, where there is also a CCCL, causing the proposed amended Policy 4.1.2 to read before and after the change as follows: Before change of wording: Policy 4.1.2: Continue to ensure that all development and redevelopment conforms to proper elevation requirements in the Coastal High Hazard Area- I_e_.- -- J_r!� __ -. -- J-1r2_J - 111111 ---- k- *k^ Cnde%Wml see map attached). After change of wording: Policy 4.1.2: Continue to ensure that all development and redevelopment conforms to proper elevation requirements in the Coastal High Hazard Area. ..Le_L __ J_11.__J 111111 --- by +ha Gndornl see map attached). IUK 10G85 -11- 20 Z,w. AT MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN nmauaiiiimaaua°°mi 10685 /K/ one mile CITY OF MIAMI PLANNING DEPARTMENT PREPARATION OF THIS MAP WAS AIDED THROUGH FINANCIAL ASSISTANCE RECEIVED FROM THE STATE OF FLORIDA UNDER THE LOCAL GOVERNMENT COMPREHENSIVE PLANNING ASSISTANCE PROGRAM AUTHORIZED BY CHAPTER 016•I67LAWS OF FLOnIDA AND ADMINISTERED BY THE FLORIDA DEPARTMENT GT flOMMUNIFY AFFAIRS ..rli-nr.f IaAr*IT z. k C �m .Oi O Z r H O IX - N rn a �a �� �i a a= 00 z a ,; Z O O z -� �m m O N Am 9 D 01 - y a w � 3 = GO 0 O a N O J 0 E s s S v a ma z y Sm Sr WIL Z Q m (A G) cn _ c[�: = C > m N C-) D aC-5 n Q � C) 0D v CD D � rD- mm Dr Q O Z c) MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN N% �umuuuu�nmiiimumm 1.068C one mile CITY OF MIAMI PLANNING DEPARTMENT PREPAq ATION OF THIS MAP WAS AIDED THROUGH FINANCIAL ASSISTANCE RECEIVED FROM THE STATE OF FLORIDA UNDER THE LOCAL GOVERNMENT COMPREHENSIVE PLANNING ASSISTANCE PROGRAM AUTHORIZED BY CHAPTFR gg -IgT LAWS OF FLORIOA AND ADMINISTERED BY THE FLORIDA OEPARTMENT OT COMMUNItY AFFARi$ __ 21 I CAPITAL IMPROVEMENTS A. OBJECTIONS None Analysis None Goals. Objectives, and Policies 1. 9J-5.016(3)(c)4. Revised Capital Improvements Policy 1.2.3 does not include a quality standard for the Drainage Level of Service. Recommendation Revise Capital Improvements Policy 1.2.3 to include a water quality standard for the Drainage LOS. This revised policy should be consistent with the Drainage Policy 2.1.3. City of Miami Response See response to "Drainage Sub -Element", preceding. B. COMMENTS None CONSISTENCY OF LOCAL GOVERNMENT COMPREHENSIVE PLAN WITH THE COMPREHENSIVE REGIONAL POLICY PLAN AND WITH THE STATE COMPREHENSIVE PLAN STATE COMPREHENSIVE PLAN A. OBJECTIONS 1. 9J-5.021 The following proposed amendments are inconsistent with the State Comprehensive Plan (187.291, F.S.) 10685 - 12 - z2- N a) Proposed text amendment PZ-22, which establishes a Coastal High Hazard Area which is not consistent with Rule 9J-5.003(13) F.A.C., definition and map amendment PZ-4, which possibly allows increased density in a Coastal High Hazard Area, are inconsistent with Policy (7)(b) 24 and 25 which state "require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe ---- evacuation of coastal residents" and "require local governments, in cooperation with regional and state agencies, to adopt plans and policies to protect public and private property and human lives for the effects of natural disasters". Recommendation Revise the Coastal High Hazard designation to be consistent with the 9J-5.003(13) definition and ensure that an increase in density does not occur within the Coastal High Hazard area. (See response to "Coastal Management Element", preceding.) 2. Proposed text amendment PZ-22, relating to the revised Drainage LOS does not include a quality standard and would result in additional negative impacts on the surrounding water bodies and marine and other natural resources. Therefore, proposed text amendment PZ-22 is inconsistent with Policies (8) (10) and (12) which state "Protect surface and groundwater quality and quantity in the state" and "eliminate the discharge of inadequately treated stormwater runoff into the waters of the state" and Policies (9)(b)5,6, and 7 which state "Protect coastal resources, marine resources, and dune systems from the adverse effects of development", "Encourage land and water uses which are compatible with the protection of sensitive coastal resources", and "protect and restore long-term productivity of marine fisheries habitat and other aquatic resources". Recommendation Include a water quality standard in the City's revised level of service standard for drainage. (See response to Drainage Sub -Element", preceding.) - 13 - 10685 23 3. Proposed text amendments PZ-21, relating to the changes made to Objective 1.3 and Policy 1.3.4, which address adequate sites in residential areas for group homes etc... may make the standards for such more restrictive, therefore, possibly being inconsistent with (5) Ml which states "eliminate public policies which result in housing discrimination, and develop policies which encourage housing opportunities for all Florida's citizens." Include an explanation of "subject to the requirements and limitations to the Zoning Ordinance" ensuring that this language will not make the standards for Community Based Facilities more restrictive. City of Miami Rgsoonse (See response provided for HOUSING ELEMENT section.) REGIONAL POLICY PLAN A. OBJECTIONS MOWD-MUI a) Proposed text amendment PZ-21, changes to Objective 1.3 and Policy 1.3.4, is inconsistent with Regional Policy 16.1.0 which states encourage inclusion of policies in the local government comprehensive plans which prevent exclusion of group homes and foster care facilities by zoning." Recommendation Revise amendments to be compatible with and further the above - referenced concerns and policies of South Florida Regional Policy Plan. (See response provided for HOUSING ELEMENT section.) b) Proposed text amendment PZ-22, relating to the designation of the Coastal High Hazard area and map amendment PZ-4 (Ormond) which possibly proposes an increased density in the Coastal High Hazard Area are inconsistent with Regional concern relating to growth in high hazard areas. Recommendation Revise amendments to be compatible with and further the above - referenced concerns and policies of South Florida Regional Policy Plan. 1068.5 - 14 - z4 City of Miami Res onse (See response to "Coastal Management Element", preceding). c) Proposed text amendment PZ-22, does not include a quality standard in the revised Drainage LOS Policies 1.2.3 and 2.1.3 which is -- inconsistent with Regional Policy 37.1.4 which states "individual drainage system should not adversely impact water quantity or quality of the surrounding area. Recommendation Revise amendments to be compatible with and further the above - referenced concerns and policies of South Florida Regional Policy Plan. City of Miami Response Miami Res onse (See response to "Drainage Sub -Element", preceding.) 105IRS - 15 - 25 SECTION II Map amendments PZ- 3 (7/27/89)"Gerrits" * PZ-13 (7/27/89)"Coconut Grove" * The Department of Community Affairs had no objections, recommendations, or comments to this map amendment. 1068S. - 16 - 7( SECTION II DCA OBJECTIONS, RECOMMENDATIONS AND COMMENTS TO CITY OF MIAMI Comprehensive Plan Amendments A. OBJECTIONS None. B. COMMENTS Proposed map amendment PZ-3 proposes to allow a general commercial land use in a residential area which is potentially an incompatible commercial use with the surrounding neighborhood uses. The City has stated that this land use change is supported by Future Land Use Objective 1.2 which requires the City to promote the redevelopment and revitalization of blighted, declining, or threatened commercial and industrial areas. However, the City should include more information concerning why this land use amendment is consistent or supported by Future Land Use Objective 1.2 (identifying it as a blighted area and providing a specific explanation for how this change will promote revitalization and redevelopment in the area). Also, demonstrate that this would ensure compatibility with the surrounding uses. The Department suggests the City include an analysis of how the amendment PZ-3 parcel would be developed pursuant to local land development regulations and special conditions in order to ensure compatibility with surrounding uses. The subject parcel, as stated in Attachment 6B of the City's Amendment Transmittal to DCA, is located in the Wynwood Community Development (CD) Target Area. The socio-economic characteristics of the area qualified Wynwood as a CD Target Area, providing resources to improve the quality of its residential and economic environment through, among others, commercial rehabilitation. 10685 - 17 - 27 The MCNP Data and Analysis identifies characteristics that demonstrate the declining nature of the area and the need for revitalization. For instance, this area of Wynwood experienced a decrease in population during the 1970-1980 period in the range of 500 to 1000 residents. The percent of families below the poverty level during the same period increased as well. In 1970 it was estimated to be between 20% and 30%. By 1980 the percentage had increased to over 30%. These percentages are well above the City average of 16.4% in 1970 and 19.9% in 1980. This trend parallels that of the entire Wynwood Target Area, where figures show that the civilian labor force decreased by -4.7% between 1970 and 1980. One root cause for this decline is the lack of jobs in the area. As noted in Attachment 6B, the City purchased property from the owner/applicant to expand Roberto Clemente Park. The property had been part of the applicant's business site. To mitigate the impact on this established business and possible loss of jobs, additional land was needed. The resulting business expansion effort would serve to stimulate additional employment opportunities in the area. This proposed land use amendment is compatible with the surrounding uses. The parcels are contiguous to those presently owned by the applicant and utilized for his business. The additional parcels would expand an existing business within an established commercial corridor along NW 2nd Ave. The amendment would not detract from, nor divide, the currently established residential neighborhood since the land use to the south is designated as "Recreation". Any development undertaken by the applicant to improve the subject parcels will require local land development regulation permits that ensure compatibility with the surrounding properties. A. OBJECTION None. B. COMMENTS Proposed map amendment PZ-3 would eliminate a maximum of 20 units of medium density multi -family residential units. It appears the City has limited lands available to provide for their projected housing needs. The City should include more analysis of the impacts on the housing needs for the City as it relates to the elimination of 20 units of medium density multi -family residential units. 1068.5 - 18 - 28 Though the City has limited lands available to generate new housing units and the City as a whole desires more affordable housing, the Wynwood Community Development Target Area experienced an increase in the vacancy rate of existing residential units during the 1970-1980 period. In 1980? 881 housing units were vacant compared to 525 vacant units in 1970. This is an increase to 10.78% in 1980 compared to 6.65% in 1970 (MCNP Data & Analysis). The elimination of 20 units by this land use amendment could be sufficiently absorbed through the existing vacancies in the area. Doc:[sys)<comp>dca/orc 12/01/89 r� - 19 - 2..1 r Application # Date: CITY OF MiAMI PLANNING DEPARTMENT 275 N.W. 2 STREET - - -- . MIAMI, FLORIDA 33128 APPLICATION TO AMEND THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN Section 62-17 of the Code of the City of Miami, Periodic review, additions and amendments to the adopted comprehensive plan, reads as follows: Periodically, but not less often than once in five (5) Years or more often than once in two (2) years, adopted comprehensive plans or a portion thereeof shall be reviewed by the planning advisory board to determine whether changes in the mount, kind or direction of development and growth of the city or area thereof, or other reasons, make it necessary or beneficial to make additions or amendments to the comprehensive plans, or portion thereof. If the city commission desires an aneedoent or addition, it say, on its own motion, direct the planning department to prepare such amendment for submission to and review by the planning advisory board. The planning advisory board shall make a recommendation on the proposed plan amendment to the city commission within a reasonable time as established by the city commission. The procedure for revising, adding to or amending comprehensive plans or portions thereof shall be the same as the procedure for original adoption. This petition is proposed by: ( ) City Com,ission ( ) Planning Department ( ) Zoning Board ( X ) Other & Please Specify: Board of Trustees of_,,; eternal ( ) Improvement Fund of the State of Florida and City of Miami Department of Off -Street Parking The subject property is located at 3490 and 3500 Main Highwav Legal Description attached as Exhibit A AND MORE PARTICULARLY DESCRIBED AS: Lot(s) Block(s) Subdivision Page 1 of 3 1.OG85 30/ `� A The under signed being the owner or the representative of the owner, of the • subject property e 1 respectfully request the ar —al of the City of Miami for the following ._ .'idment(s) to the Miami Comp► isive Neighborhood Plan for the above -described property as indicated in the Land Use Plan: FROM; Restricted Commercial and Single -Family Residential TO: Major Public Facilities, Transportation and Utilities Please supply a statement indicating why you think the existing plan designation is inappropriate. The Restricted Commercial and Single -Family Residential designations do not reflect the actual ownership of the site by, the State of Florida and Cite of Miami Department of Off -Street Parkina and itc present and future uses by these governmental entities for onera ion of a State theater, narking garage and the sublease of retail facilities that are hart of the nr000sed Coconut Grove Theat r Project. While there is a small portion of the Aron r y t-ha cla..G� until recently used as privately owned and operated re ai1. t-hPrP has (continued on separate page) Please supply a statement justifying your request to change the p'3n to your requested plan designation. The proposed Major Public Facilities desianation is in accord with the ownership and uses of the property both presently by the State of Florida and in the future by the State in conjunction with h City of Miami Department of Off -Street Parking as the rngnni,t- rrnv� Playhouse Theater Project, en_omna sing a second thgater.. puhi�_ parking garage, and retail uses accessory to the theater. What is the acreage of the property being requested for a change in plan designation? 2.6 Page 2 of 3 not been residential use on that portion of the property designated _ residential. J.O68S 0 Has the designation 4f this property been changed it ie last year? No Do you own any other property within 200' of the subject pedpertyi Yea If yes, has this other property been granted a change in plan designation within the last 12 months? N, 2 (The Board of Trustees of the Internal Inprovemert Fund also controls Zhe Barnacle State Park site located at 3485 Main Highway). Have you made a companion application for a change of zoning for the subject property with the Planning and Zoning Boards Administration Department? Yes Have you fil th the Planning and Zoning Boards Administration Department: "- - Affidavit of ow rship? Yes - List of owners of property within 375' of the subjec pr arty _Y - Oisciosure of ownership fora vPG If not, pleas ply them. SIGNATURE 4,5 I NAME 42,V- c.. ADDRESS 340 0 I Cn vt*ite, kL c�j l v PHONE 2- STATE OF FLORIDA) SS: COUNTY OF =N ) _ e is the er uthortzad gent above: 'that he has read the foregoin cootplete; and . (if acting as agent f this petition on behalf of the By: SWORN TO AND SUBSCRIBED before lie this .'„ day - of Y v�, duly s,Irorn. deposes and says that r) of the real property described Hers and that the a true and (cxVla orieut1.e /t eas jf Ino nalrImprove- a�) Notary Public, 5rate OrMERW at Large Notary Public, State of Florida MY Commission Exp;res July 14, 1992 MY C OM ISSION EXPIRES. Computation of Fee: Receipt #: Page 3 of 3 ILOGSS SIGNATURE DATE NAME John . J . Mu vg na AOORESS 190 N.F.. Third Street, Miami ,,�FL 3 31' 2' PHONE 373-6789 STATE OF FLORIDA) SSt COUNTY OF OADE -•^^L�L , being duly sworn, deposes and says that e Is the(Mier) (Authorized Igent for Owner) of the real property described abovet that he has read the foregoing answers and that the sae are true and complete; and, (if 'acting as agent for owner) that he has authority to* execute this petition on behalf of the owner.city of Miami Department of Off -,street Parking 't ) By : `,,� . l ?. � .��...�,..�.. _, - SEAS. SWORN TO AND SUBSCRIBED JOHM J . NBJLVEN�, E::ecuti�� e before me this �day Director_. of r�A" i 198-1. - . Notary Public, State of Florida at arge N EXPIRES.: At LM. 0 AWW 10685. 34 9 AFFID*'VI1 . -. :53 STATE OF Fig , A) SS. COUNTY OF LEgN ) Before me, the undersigned authority, this day personally. appeared 0 l :: (�nnt.a.C.r� � ti . who berg by me first duly sworn, upon oath, deposes and says: J - 1. That he is the owner, or the legal representative of the owner, submitting the accampanying application for a public hearing as required by Ordinance No. 9500 of the Code of the City of Miami, Florida. effecting threal propetl y located in the City of Mami as descr^lbed and Listed on the pages attached to this affidavit and made a part thereof. 2. That all owners which he represents, if arty, have given their full and complete perndssion for him to act in their behalf for the change .)r modif+cation of a classification or regulation of zoning as set out in the acc,,..., .g petition. 3. That the pages attached hereto and made a part of this affidavit contain the current -names, mailing addresses, phone n=ers and legal descr..ptions for the real prvperL-r which ne is the owner or legal. representative. 4. The facts as represented in the application and docuw.ents submitted in conjunction with this affida "etand correct. Further Affiant sayeth not. Ward/ of 9jrM l TrPo'�A eBy: (Name) Sworn to and Subsc^�:.e�dbefore me this,; day of , 1974 J� Notary Pualic. State of Florida at Large M;- C.cr►=r ;Sion Expires: Notary Public, State of Florida My Conmission Expires July 14, IM BoMad rhru rloy fain • ImunnC* InC. 1068S. 35 OWNER'S LIST Owner's .Jame Board of Trustees of the Internal Improvement Fund of the atate o= lorida Mailing Address c/o Department of Natural Resources, 3900 Commonwealth Blvd., Telephone Number (904) 488-1555 Tallahasee, Florida 32399 Legal Description: See attached Exhibit A Owner's Name Mailing Address Telephone Number Legal Description: Owner's Name Mailing Address Telephone Number Legal Description: Any other real estate property owned individually, jointly, or severally (by corporation, partnership or privately) within 375' of the subject site is listed as follows: Street Address Legal Description 3485 tMain Highway Lot 8 S.E. of county road (The Barnacle) Nhmroe's Plat EB D-253 Street Address Legal Description Street Address Legal Description 10685 3fo STATE OF FLrAUM) COUI+ITY OF DADE ) s� -u ^ .53 A1�47'D'AVTT SS. Before me, the undersigned authority, this day personally appeared JOHN J . MULVENA , who being by me first duly sworn, upon oath, deposes and says: 1. That he is the owner, or the legal representative of the owner, sub=Ltting the accompanying application for a public heating as required by Ordinance No. 9500 of the Code of the City of Miami, Florida, effecting the real property located in the City of Miami as described and Listed on the pages attached to this affidavit and made a part thereof. 2. That all owners which he represents, if any, have given their full and complete permission for him to act in their behalf for the change ,.)r modi:ic3tion of a classification or regulation of zonirsg as set out in the accor:ranyirg petition. 3. That the pages attached hereto and made a part of this affidavit contain the current names, mailing addresses, phone m=ers and legal descriptions for the real property which ne is the owner or legal representative. 4. The facts -as represented in the application and doc=e its submitted in conjunction with this affidavit are true and correct. Fortner Affiant sayeth not. City of Miami Department of Off -Street Park ng JOHN J. `MULViNA, Executive . Direct Sworn to and Subsc gibed before me this �T4 day of 190 Notar.r Public, State of Florida at Large My Commission Expires: NodeOW C eON WW- a tt Sanded IhM 1A90 Ed e" 1 0 ACDW 10685, 31 0 OWNER'S LIST Owner's flame Board of Trustees of the Internal Improvement Fund of the State of Florida mailing Addressc/o Department of Natural Resources, 3900 Commonwealth Blvd.., Tallahasee, Florida 32399 Telephone Number (904) 488-1555�_� Legal Description: See attached E:;hibit A Owner's Name City of Miami Department of Off -Street Parking Mailing Address 190 N.E. Third Street Telephone Number 373-6789 Legal Description: See attached Exhibit A - Owner's Name Mailing Address Telephone Number Legal Description: Any other real estate property owned individually, jointly, or severally (by corporation, partnership or privately) within 375' of the subject site is listed as follows: Street Address Legal Descriotion NONE Street Address Street Address Legal Descriotion Legal Description 1®685, CcI'7 53 DYvtTl?StJEE OF C>Fh1� 1' ~ �' L 1. Legal description and street address of subject real Ejrq=ty: 3490 and 3500 Main Highway Legal Description attached as Exhibit A 2. Owner(s) of subject real property and percentage of ownership. Note: City of Miami ordinance No. 9419 requires disclosure of all parties awing a financial interest, either direct or indirect, in the subject matter of a presentation, request or petition to the City Comission. - F,coardingly, question 42 requires disclosure of all shareholders of corporations, beneficiaries of trusts, and/or any other interested parties, togemer a-th their addresses and proportionate interest. OWNERS: 3500 Main Highway -- Board of Trustees of the Internal Improvement Fund ,of the State of Florida, c/o Department of Natural Resources, 3906 Commonwealth Blvd., Tallahassee, FL 32399, an gntity composed of the Governor and Cabinet of Florida, which pursuant to Section 253.03, Florida Statutes, holds title to the property utilized for public purposes - 100% ownership. (Md1ib•13_.-- 3490.Main Highway - City of Miami Department of Off -Street Parking, 190 N.E. Third St., Miami, FL • 33132, Board members attached as E::hibit E3;: - 100% ownership. (continued on attached page) 3. L qui description and street address of any t -al props: %. (, ) owned by any party listed in answer to question 02, and (b) iacated wi..hin. 375 feet of the subject real property. /---� Lot 8 S.E. of County Road . oard f Trustees oa the Internal n=oe's Plat I3B D-253 m vement Fund State of Florida (3485 Main Highway) By: City of Miami Department of • Off -Street Parking B y : . r) QWbMt OR c'R=2W ECR OWNER JOHN J. MULVENA, Executive Director S= OF FIZFMP, ) SS: CCMI= Gc • -LEON ) Ill -I,i_ot� "�C'r, .'I says that ne is the (Cvner 1 ( Attorney fo described in'*'answer to question #l, Ik=URj answers and that the same are true and�t_ for owner) that he has authority to foam on behalf of the owner. Bv: SW= To AND SMSCRnED before roe this day of ` r ;�, T980 . being duly sworn, deposes and h=.) of the real property ata has read the foregoing e., (if acting as attorney Disclosure off OWA�rship of T3jusj;ees _Af NdEary Public, State or. Florida at Large Internal to of Florida 1068Sk MY CO►'20SS=4 MLtitMS: Notary Public, State of Fioridi C—Mission Expires July 14. 1992 .39 John J. Malvena. Executive Director De t . of Off -Street Parking , bei nq duly swots deposes attd tnat no is the l Qwner j (Attorney or 006er i fdt4 t& i t prdoarty described in answer to question #It abovet that he has read the forgoing answers and that the same are true and cceplatet and (if acting as attcrney for owner) that he has authority to execute this Disclosure of Ownership font on behalf of the owner. SWOM TO AI D 5Imt before me this fir► day of M r1'`'f 5 q . FIt Cw: KISS i CTI.M S : S&Xii thm Ce:mE ono,► t arc ame iL dA�� - Notary Pudic, State or Florida at Large TM OF FL A ) SS t :GtrN'SY OF DADE ) ' -JOHN J . MULVENZ ► beiM duly sworn,, deposes and says tnat. ne is the duty appoMm' Executive Di recto„of , tjf Street , Parking, the owner of the real property descrU= in answer to westuz +tom. acovel that he has reed the foregoing answers; that the same are true and plete s and that he has the authority to execute this Disclosure of owner- ship fazm on behalf Of the owner. City of Miami Department of . Off -Street Parking B%r: r P• � 1 ' iSElL) ,f"JiMUZ7 SVrM TO AIM SQESC t before me this fµ day of k4r�-. g.�.• Notacry PuSlic, state ox -- Florida at lArge MY CM29MIM EKPn;ZS t v Pak low d IbW"v taw eorwia d low � 4 CMM/wpcc/ab/G25 I/ (� �+ i .LL G85j. A a. W JOHN ). MULVENA Executive Director May 16, 1989 Dear Coconut Grove Property Owner: The State of Florida and the City of Miami Department of Off -Street Parking have applied for a zoning change and a Comprehensive Plan amendment change for the Coconut Grove Playhouse site. As with all zoning and Comprehensive Plan amendments, public hearings will be held for these applications. You should soon be receiving a notice from the City informing you of these requests. We are asking that the City of Miami rezone the entire Playhouse site to "Government Use" and amend the Comprehensive Plan to read "Major Public Facilities" for this site. We believe that these amendments will better reflect the public ovmership and use of the property. Equally important, these amendments would allow the Coconut Grove Playhouse Project to be implemented with no anticipated variances. Construction on "Government Use" zoned property would also require a special exception which would be applied for in Fall, 1989. The Coconut Grove Playhouse Project is a joint venture involving the State of Florida, the Department of Off -Street Parking, and Coconut Investments, Inc., a private developer selected through a competitive bidding process. The Project will result in new classroom, warehouse and theatre space for the Playhouse, a 500-car public parking garage, and 30,000 square feet of retail and restaurant space. An informal meeting will be held at the Coconut Grove Playhouse (3500 Main Highway) on Wednesday, May 31st, from 5:30 p.m. to 7:00 p.m. so that we may meet with nearby residents and/or property owners prior to the zoning hearings in order to answer questions about the Playhouse Project. If you are interested in finding out more about our rezoning rind Comprehensive Plan amendment requests and are unable to join us at the May 31st Playhouse meeting, please feel free to call me or Cathy Swanson at 373-6789. Sincerely, vQ . y v-•c J J n J . �tviulven Executive Director Department of Off -Street Parking cc: Members of the Coconut Grove Parking Advisory Committee Seth Warner, General Partner, Coconut Investments, Inc. Maurice Wiener, Chairman, Coconut Grove Playhouse Governing Committee 10685, July 31, 1.0 8g To: The Mayor and, Coz:nd.ssion: I am unable to attend the meeting concerning the Playhouse parking, put I want you to know that I am -voting "NO" and asking for a postponement until a later date. Respectift-L.ly, Elizal^nth Bullard, Nner Address% 3363 ThomasAve. Submitted into the public record in conTirction with item P_z- l3 batty Hirai City Clerk 10685 July 31, 1989 To: The Mayor and Coin, ssion: I am unaUe to attend the meetiazg concerning tide PlayHouse Parking, but I want you to know that I am voting "110" and asking for a postponement runtil a later date. R- pectf�.�.? ly, Qf7 tianita Me Stirrup, Owner FI Address: 3301 Charles for 42. years Submitted into the pu he record in connection with item 3 on 7 3/• Matty Hirai City Clerk -53 ms=nsafm OF 1. Lagal description and street address of subject reel property: 3490 and 3500 Main Highway Legal Description attached as Exhibit A 2. Qmr(s) of subject real property and -percentage of ownership. Note: City of Miami Ordinance No. 9419 requires disclosure of all parties aving a financial interest, either direct or indirect, in the subject matter of a presentation, request or petition to the City Commission. Accordingly, question 42 requires disclosure of all shareholders of corporations, bansficiaries of trustso xWor any other interested parties. together +r,.th their addresses and proporti=kte interest. OWNERS: 3500 Main Highway - Board of Trustees of.the Internal Improvement Fund•of the State of Florida, c/o Department of Natural Resources, 3906 Commonwealth Blvd., Tallahassee, FL 32399, an gntity composed of the Governor and Cabinet of FloridA, which pursuant to Section 253.03, Florida Statutes, holds title to the property utilized for public purposes - 100% ownership. (E:thib.E- 3490.Main Highway - City of Miami Department of Off -Street Parking, 190 N.E. Third St., Miami, FL•33132, Board members attached as Exhibit B2.- 100% ownership. (continued on attached page) 3. L hl description ami. street address of any t Tsai props: t •. owned by any party listed in answer to question i«, and (b) 1cmated WWWUU. 375 feet of the subject real proeerty. Lot 8 S.E. of County Road . Mmu-oe's Plat TB D-253 (3485 Nls.in Highway) By: f Trustees os the Internal ment Fund State of Florida City of Miami Department of Off -Street Parking By: • OR JOHN J. MULVENA, Executive Director S= OF FLERM ) SS: C=WJ OF : -LEON ) says ne'&a the ( Qvner) (Att rn ey described in''answer to question #1, abc answers and that the same are true and cc for -owner) that he has authority to e: foaa on behalf of the owner. Bv: SWIM M A,ND before me this ,•'' day of I' /) 6, t t �8� � • being duly sworn, deposes and .) of the real property that a has read the foregoing tel (if acting as attorney a Disclosure o5eana ship of Trustees Af ternal to of Florida Nd pub lc, State -Or .... Florida at Large Mr CanMI 1=4 W=ZS: Notary Public, State of Florida F " r�nT+SSiD11 Fxnirae Iulo 1A 10(n Sm OF Fum= ) SS: C'CX cy OF DAflE ) ' JOHN J . MULVENA beim duly swacna deposes wA s that, a ss the y apposntec Executive Di rec ' of ' tip' e�, t parki np, the owner of the real prqmM dss=um in answer to questuon v1s, am"I that he has read the foregoing answers; that the sm a are true and plate= and that he has the authoritY to execute this DiSCIOMM of OWWL ship form on behalf Of the owner. City of Miami'Denartment of Off -Street Parking By SWW TO PM SOfS� before me this der of .. AKxi `�.• public" 'tale of Florida at Large COMMIS'SZ�EUMM& Pdft rr. 0 pftft•,Ie &AW eadd O• OffaftApmW CWwpc/ab/025 DISCLOSURE OF OWNMSHIP :73 2. (Continued) It should be noted that the Board of Trustees of the Internal Improvement Fund of the State of Florida and the City of Miami Department of Off -Street Parking are public, not for profit agencies. FUTURE LESSEES: Coconut Investments, Ltd., a Florida limited partnership, c/o Werner Capital Corporation, 2665 South Bayshore Drive, Penthouse II, Miami, Florida 33131; Jack H. Chambers, general partner, 2665 South Bayshore Drive, Penthouse II, Miami, Florida 33131; Seth Werner, general partner, 2665 South Bayshore Drive, Penthouse II, Miami, Florida 33131. See Exhibits C, D and E for details of future lease and present status of transaction. )TATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES Marjory Stoneman Douglas Building • 3900 Commonwealth Boulevard • Tallahassee, Florida 32399 Tom Gardner, Executive Director June 2, 1989 TO WHOM IT XAY CONCERN: Percy W. Mallison, Jr. is currently the Director of the Division of State Lands in the Department of Natural Resources and has been since April 1988. 1 erg-- Q-- -CCLQ2 v '01 Tom Tomasello Deputy Assistant Executive Director C� 1.®Gs51 2- .-xdministration Beaches and Shores Law Enforcement Marine Resources Recreation and Parks Resource Management State lands Bob Martinez Jim Smith Bob Butterworth Gerald Lewis Tom Gallagher Dovle Conner Betty Castor rn Goveor SecretarvofState Attorney General State Comptroller State Treasurer CommitsionerotAgticulture CommuaiorteroiEducation Fine Jacobson Schwartz Nash .block & England One CenTrw Financial Center 100 Southeast 2nd Street Miami, Florida 33131 (305) 577-4000 Fax (305) 577-4088 May 26, 1989 HAND DELIVERY City of Miami Building and Zoning Department Hearing Boards Division 275 N.W. Second Street Miami, FL 33128 ATTN: Gloria Fox, Section Chief Re: COCONUT GROVE PLAYHOUSE APPLICATION Dear Ms. Fox: Cathy Swanson has advised me that you have requested evidence of the authority of an officer of the Department of Natural Resources to sign the zoning application for the Coconut Grove Playhouse project on behalf of the fee owner, The Board of Trustees of the Internal Improvement Trust Fund. Enclosed is original, certified copy of Delegations of Authority from the Governor and Cabinet sitting as head of the Department of Natural Resources and as the Board of Trustees of the Internal Improvement Trust Fund. The Delegation was dated March 22, 1988; note that on page 2 that the document has been certified with raised seal. 577-4160. If you have any questions, please contact me at Very, truly ypur. . ,h J lie A. S illiamson WPRL:1LT0526JSW/lg 05587.0001 Encl. cc: Adrienne Friesner, w/encl. Rafael Diaz, Esq., w/encl. Sheila Wolfson, Esq., w/encl. Cathy Swanson, w/encl. Barnett Bank Plaza • Suite 1100 Barnett Bank Building • Suite 348 One East Braward Boulevard 315 South Calhoun Street Ft, Lauderdale, Florida 33301 Tallahassee, Florida 32301 (305) 462-2800 (904) 681-9500 Fax (305) 527-8747 Paz (904) 681-6651 TOM GARDNER Executive Director State of Florida DEPARTMENT OF NATURAL RESOURCES S:eretary , t State BOB BUTTERWORTH Attorney General Marjory Stoneman Douglas Building GERALD LEWIS State Comptroller 3900 Commonwealth Boulevard Tallahassee, Florida 32399 BILL GUNTER State Treasurer D0YLECONINER Commissioner of Agriculture BETTY CASTOR Commissioner of Education PLEASE ADDRESS REPLY TO: STATE OF FLORIDA COUNTY OF LEON C E R T I F I C A T E I, Judy A. Brooks, do hereby certify that the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, met an March 22, 1988 and approved the following Item 33 on the agenda for that date. Item 33 .l DZ. `EziR=.D FROM T'r~• MARCH 8, 1988 AGENDA REQUEST: Consideration of Board of Trustees of the Internal In—,,rovement Trust Fund Delegations of Authority, delegations are to the ?xecutiVe Director o` the Deva=tment of Natural Resources ind are intended to replace and supersede all previous delegations of as+.ilority, whether established by :esoluticn o: the Governor and Cabinet sitting as head of the Board of Trustees of the Internal Lmprovement. Trust Fund (Board) or by agency rule. Upon approval, the dele gations shall serve as the sole and t.aified source of all delegations of authority and may be amended or modified at the direction of the Board. Unless otherwise stated, each delegation carries with it the authority to execute and issue the legal documents or instruments necessary to implement the delegated function. Upon approval, the Department shall initiate rulemaking proceedings in order to amend all delegations of authority currently in the Florida Administrative Code to conform to the authority delegated herein. The delegations are presented as they apply to the operation of specific Divisions within the Department. - RECOMWM APPROVAL 1068E "Working Together to protect Florida's future" 2^ Cerdification March 22, 1988 for Agenda Item 33 J page Two IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Board of Trustees of the Internal Improvement Trust Fund this 23rd day of March, A.D. 1988. VW f��`!+•(tip 1 / - / ,�� .'� = •••'����/��'' JudtX. Br6bks, Administrative Asst. i.. Division of State Lands Department of Natural Resources loss. 2-4- PELEQATION OF AUTHORITY ACTIONS If Applicable:* De_leaat1 : Coconut Grove Playhouse Project Name Rezoalna Rea3a2st Type _ LD Project Number Lease No. 3185 Number ACTION TAKEN: Submit application for zoning change. APPLICANT: Miami_Department of Off-street Parking and the Coconut Grove Playhouse COUNTY/LOCATION: Dade CONSIDERATION: N/A STAFF REMARKS: The Board of Trustees approved the Coconut Grove Playhouse lease on April 21, 1981. Staff considers the zoning application a document necessary to implement the intentions of the Board. Please use additional pages if additional space is required for gxylanations . REVIEW ROUTING 1. Originator 2. Bureau Chief 3. Legal - Prior to Execution 4. Legal - Subsequent to Execution 5. Deputy Director 6. Division Director 7. Executive Director O/11 VED BY. ,(Sig at e) / Date / s 1 DISTRIBUTION: (highlight as appropriate) Original - Originator/Master File Copy - Division Director Copy - Purchasing (when requisition required) ILOC3854 2,5 EXHIBIT B1 BOARD OF TRUSTEES .. • - OF THE INTERNAL IMPROVEMENT FUND OF THE STATE OF FLORIDA Robert Martinez, Governor The Capitol Tallahassee, Florida 32399 (904) 488-4441 Robert Brantley, Lieutenant Governor The Capitol Tallahassee, Florida 32399 (904) 488-4711 Jim Smith, Secretary of State The Capitol Tallahassee, Florida 32399 (904) 488-3680 Bob Butterworth, Attorney General The Capitol Tallahassee, Florida 32399 (904) 487-1963 Gerald A. Lewis, Comptroller The Capitol Tallahassee, Florida 32399 (904) 488-0370 Torn Gallagher, Treasurer, Insurance Commissioner, and Fire Marshall PL 11 The Capitol Tallahassee, Florida 32399-0300 (904) 488-3440 Doyle Conner, Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 (904) 488-3022 Betty Castor, Commissioner of Education The Capitol Tallahassee, Florida 32399 (904) 487-1785 MUSS EXHIBIT B2 - - f,� l.�i it Mr. Leslie Pantin, Sr. AmerInsurance Agency 9485 Sunset Drive, Suite A-150 Miami, Florida 33173 596-2111 Mr. David Weaver Chairman and Chief Executive Officer Intercap Investments, Inc. 800 Brickell Avenue, 2nd FL. Miami, FL. 33131 358-3600 Mars. Dianne Saulney Smith Assistant County Attorney Metro Dade Center III NW Ist Street, Suite 2810 Miami, Florida 33128 375-5106 Mr. Arthur Hertz WCM Enterprises 3195 Ponce de Leon Boulevard Coral Gables, Florida 33134 529-1403 Dr. Eduardo Padron Vice President Miami Dade CIm m ni ty Co 1 I ege New World Center Cagm 300 NE 2nd Avenue, Roan 1301 Miami, Florida 33132 JOHN 1. MULVENA t in t„,a. o,ft•t ill• Mr. Arnold Rubin, Director Emeritus 4567 Jefferson Avenue Miami Beach, Florida 33154 538-7180 - Hama Mr. Marx D. Cauthen, 975 NE 89th Terrace Miami Shores, Florida 758-:1019 - Home Director Emeritus 33128. John J. Mulvena (Executive Director) Miami Parking System 190 NE Third Street Miami, FL. 33132 373-6789 1068E Department of Off Street Parking 190 N.E. Third Street Miami, Florida 33132 305.373.6789 EXHIBIT C„ ESCROW AGREEMENT THIS ESCROW AGREEMENT is made and entered into this 2� day of January: 1989, by and among Coconut Grove Playhouse, Inc., a Florida not -for -profit corporation (the "Playhouse"), the Department of Off -Street Parking of the City of Miami, an agency and instrumentality of the City of Miami, a municipal corporation of the State of Florida ("DOSP"), and Coconut investments, Ltd., a Florida limited partnership (the "Developer"); Fine Jacobson Schwartz Nash Block L England, P.A., a Florida professional asso- ciation ("Escrow Agent") joins in this Escrow Agreement to evi- dence its acceptance of the documents described in this Escrow Agreement as being delivered to it and to acknowledge its accep- tance of the terms of this Escrow Agreement. R E C I T A L S A. Pursuant to a Lease Agreement No. 3185 executed August 5, 1981 as amended July 31, 1986 and September 15, 1986 (as modified from time to time, the "Lease Agreement") by and between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the "Board") and The State of Flor- ida, Department of State (the "State"), the State is the holder of the leasehold interest of certain real property lying and sit- uate in Dade County, Florida (the "State Parcel"); B. Pursuant to a Sublease Agreement dated January 27, 1982 as modified July 24, 1985 (as modified from time to time, the "Playhouse Sublease"), by and between the State and the Play- house, the Playhouse is the holder of a subleasehold interest in a portion of the State Parcel (the "Playhouse Parcel"); C. Pursuant to a Sublease Agreement dated as of June 1, 1986 (as modified from time to time, the "DOSP Sublease") by and between the State and DOSP, DOSP is the holder of a subleasehold interest in a portion of the State Parcel contiguous to the Playhouse Parcel (the "DOSP Parcel"); D. As contemplated in the DOSP Sublease, the Govern- ing Committee for the Coconut Grove Playhouse Project (the "Com- mittee") accepted the response of the Developer (the "Response") to a request for a proposal issued by the Committee for the plan- ning, design, construction, leasing and management of a multi -purpose project (the "Playhouse Project") to be located on the State Parcel; E. The Playhouse, DOSP and the Developer have exe- cuted that certain Tri-Party Agreement, which sets forth the rep- resentations, warranties, covenants and agreements of the parties thereto concerning, among other things, the planning, design and construction of the Playhouse Project (the "Tri-Party Agreement"); 10GSs, 3� F. DOSP and the Developer have executed that certain Sublease Agreement pursuant to which DOSP will sublease to the Developer a portion of the DOSP Parcel for the purpose of con- structing, leasing, managing and maintaining the retail portion r of the Playhouse Project (the "Developer's Sublease"); C. It is contemplated that the Playhouse and DOSP will execute and deliver to Escrow Agent a Sublease Agreement (the "Playhouse/DOSP Retail Area Sublease"), pursuant to which the Playhouse will sublease to DOSP a portion of the Playhouse Parcel consisting of the First Floor Retail Area and the Adjacent Playhouse Parcel (as those terms are defined. in the Tri-Party Agreement), which DOSP shall then sublease to the Developer; H. In order to commence the planning, design and con- struction of the Playhouse Project, (a) the Playhouse Sublease and the DOSP Sublease are to be modified to accurately reflect the subleasehold interest of each of them, (b) certain approvals are to be obtained from the Hoard and the State, and (c) eemei�r+Q aP=ArALat title defects are to be cured; furthermore, in order to obtain financing for and provide for the continuity of the Play- house Project, the Developer requires that certain language sub- stantially similar to that submitted by the Developer regarding the Hoard's and the State's nondisturbance be included in the Lease Agreement and the Playhouse and DOSP Subleases; I. The Playhouse and DOSP have agreed to obtain the necessary approvals and modifications and to cure the apparent title defects pursuant to the terms of this Escrow Agreement; J. The Developer and DOSP are, simultaneously with the execution of this Escrow Agreement, delivering to Escrow gent duplicate originals of the Developer's Sublease to be held y Escrow Agent as provided in this Escrow Agreement; S Ix W K. The Playhouse, DOSP and the Developer are, simul- taneously with the execution of this Escrow Agreement, delivering to Escrow Agent six (6) duplicate originals of the Tri-Party Agreement to be held.by Escrow Agent as provided in this Escrow Agreement; L. The Playhouse and DOSP are, simultaneously with the execution of this Escrow Agreement, delivering to Escrow Agent four (4) duplicate originals of an agreement between them regarding certain procedures under the Developerr's Sublease (the "DOSP-Playhouse Consultation Agreement"); M. The Playhouse and DOSP shall deliver to Escrow Agent four (4) duplicate originals of the Playhouse/DOSP Retail Area Sublease; N. Escrow Agent is willing to hold the Tri-Party Agreement, the Developer's Sublease, the DOSP-Playhouse -2- 1.O}6f3S Consultation Agreement and the Playhouse/DOSP Retail Area Sub- lease (collectively, the "Playhouse Project Agreements") in accordance with the terms of this Escrow Agreement; and 0. The Playhouse, DOSP, and the Developer are execut- ing and Escrow Agent is joining in this Escrow Agreement, in con- nection with the Playhouse Project Agreements, to evidence their understanding concerning the escrow arrangement. In consideration of the premises, covenants and agree- ments set forth herein, and for other good and valuable consider- ation, the receipt and sufficiency of.which are hereby acknowl- edged, the parties agree as follows. A G R E E M ENT T 1. Recitals. The -recitals are true and -correct and are incorporated in this Escrow Agreement. 2, Term. Escrow Agent acknowle es receipt of dupli- cate executed originals of each of the P yhouse Project Agree - menus as described in Recitals above and shall acknowledge in writing to the parties hereto the receipt of the Playhouse/DOSP Retail Area Sublease upon delivery of it to Escrow Agent. This Escrow Agreement shall be terminated as provided in: Section 3 below. 3. Release of Playhouse Proiect Agreements. 3.1. Obligations of the Playhouse and DOSP. Within twelve (12) months from the date of this Escrow Agreement, the Playhouse and DOSP, as applicable, shall: 3.1.1. obtain from the appropriate parties the necessary modifications to the Lease Agreement, the Playhouse Sublease and the DOSP Sublease as may be necessary to include in them the language granting to the Developer the benefit of the provisions in Exhibit "91; 3.1.2. cause all title defects to be cor— rected so that they can convey to the Developer good, marketable and insurable title to the subleasehold interest in the Retail Parcel (as defined in the Tri-Party Agreement) as evidenced by a commitment for title insurance or status of title report prepared by Chicago Title Insurance Company or other ALTA title insurer reasonably acceptable to the Developer, subject only to the Senior Leases (as defined in the Developer's Sublease) including DOSP's obtaining fee simple title to the DOSP Additional Parcel (as defined in the Tri-Party Agreement), so that DOSP 'can convey -3- �.os8� good and marketable insurable leasehold interest to the Developer subject only to the Senior Leases. 3.1.3. obtain the approval of the State to a modification of (a) the rental payment schedule of the DOSP Sublease to reflect the agreement between DOSP and the Playhouse that Section 4.05 of the DOSP Sublease will be amended to provide that DOSP shall retain all annual Private Developer Payments (as defined in the DOSP Sublease) up to an annual amount sufficient to fully pay the $1,000,000 Debt Service Amount (as defined in the DOSP Sublease), and (b) the term of the DOSP Sublease to per- mit DOSP to sublease to the Developer pursuant to the Developer's Sublease for an initial term of forty-eight (48) years; 3.1.4. negotiate, draft, execute and deliver to Escrow Agent four (4) duplicate originals of the Playhouse/DOSP Retail Area Sublease, in form reasonably satisfac- tory to the Developer; such form shall include substantially the provisions 'in Exhibit B; O-nd g- 3.2. Termination of Escrow. 3.2.1. In the event the Playhouse and/or DOSP shall not have timely satisfied the conditions as set forth in Subsection 3.1 the Developer may by due notice to DOSP, the Playhouse and Escrow Agent cancel the Playhouse Project Agree- ments, in which event they shall be null and void and of no fur- ther force and effect and this Escrow Agreement shall be termi- nated. If this Escrow Agreement shall be terminated under the provisions of this subsection 3.2.1, then the Playhouse, DOSP and the Developer shall deliver joint written instructions to Escrow Agent to return one copy of each of the Playhouse Project Agree- ments (marked by Escrow Agent "void pu ant to Escrow Agreement by and among the parties dated January , 1989, as instructed by the parties"), to the parties which executed each of the Play- house Project Agreements, and then the Escrow Agent shall destroy all originals of the Playhouse Project Agreements. If this Escrow Agreement is terminated as provided herein, then the Play- house and DOSP shall cause to be refunded to the Developer. the Twenty-five Thousand Dollar ($25, 0) deposit made by the Devel- oper pursuant to the Response. ?"WM 3.2.2. In the event the Playhouse and DOSP shall have timely satisfied the conditions as set forth in Sub- section 3.1 above, the Playhouse, DOSP and the Developer shall deliver or cause to be delivered joint written instructions to Escrow Agent to deliver two of each of the Playhouse Project Agreements, dated as of the date of Escrow Agent's receipt of such instructions, to the parties which executed each respectiv document; upon such release, this Escrow Agreement shall termi- nate and the obligations of the parties hereto under this Escrow Agreement shall be deemed to have been fully performed. 07 I. S e01rea +! a Ies0A dew%P+,oxA ao sei J�o o n �X�►, b;{-" �'' a� Oth el �G RW- 4 - Escrow A 9reAw Ad - 1LOG85 34- 4. Access to Playhouse and DOSP Parcels. 4.1. Access. During the term of this Escrow Agreement, the Playhouse and DOSP shall permit the Developer or its agents, during reasonable hours and after prior verbal or telephonic notice, access to the Playhouse and DOSP Parcels to conduct such inspections and survey work as reasonably necessary in the furtherance of the Playhouse Project. 4.2. Condition. In the event that the Developer or its agents exercises its right under Section 4.1 above, then the Developer shall indemnify and hold the Playhouse and DOSP harmless for any costs, claims, liabilities, losses, or actions arising from, growing out of or related to the Developer's or its agents' access to and use of the Playhouse and DOSP Parcels, and the Developer shall restore the premises to the same condition as existed prior to such access and use. 5. The Escrow Agent. 5.1. Duties of Escrow Agent. Escrow Agent under- takes to perform only such duties as are expressly set forth in this Escrow Agreement and no implied duties or obligations shall be read into this Escrow Agreement against Escrow Agent. Escrow Agent is also the law firm representing the Playhouse. In the event of a dispute between the parties, the parties consent to Escrow Agent continuing to represent the Playhouse, notwithstand- ing the fact that it also shall have the duties provided for in this Escrow Agreement. 5.2. Reliance of Escrow Agent on Documents. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine; may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument; and may assume that any person purporting to give any writing, notice, advice, or instructions in connection with the provisions of this Escrow Agreement has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited in escrow, nor as to the identity, authority, or right of any person executing the same; and its duties under this Escrow Agreement shall be limited to those provided in this Escrow Agreement. 5.3. Indemnification of Escrow Agent. Unless Escrow Agent discharges any of .its duties under this Escrow Agreement in a grossly negligent manner or is guilty of willful misconduct with regard to its duties under this Escrow Agreement, the parties shall indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or other expenses, fees, or charges of any character or nature, which it may incur or with -5- "1 35 which it may be threatened by reason of its acting as Escrow Agent under this Escrow Agreement; and in such connection shall indemnify Escrow Agent against any and all expenses including reasonable attorneys' fees and the cost of defending any action, suit or proceedings or resisting any claim in such capacity. i 5.4. Discretion of Escrow Agent to File an InterZ leader Action in the Event of Dis ute. If the parties (includ- ing Escrow Agent) shall be in disagreement about the interpreta- tion of this Escrow Agreement, or about their respective rights and obligations, or the propriety ,of any action contemplated by Escrow Agent, Escrow Agent shall within a reasonable time, ;he;i_V t-eir interpread the Playhouse Project Agreements to resolve the disagreement. Escrow Agent shall be indemnified for all costs and reasonable attorneys' fees in its capacity as escrow agent in connection with any such interpleader action and shall be fully protected in suspending all or part of its activi- ties under this Escrow Agreement until a final judgment in the interpleader action is received. 5.5. Consultation with Counsel. Escrow Agent consult with counsel of its own choice and shall have full complete authorization and protection in accordance with opinion of such counsel. Escrow Agent shall not be liable any mistakes of fact or errors of judgment, or for any acts omissions of any kind unless caused by its gross negligence willful misconduct. 5.6. Resignation of Escrow Agent. Escrow Ac may resign upon ten (10) days' written notice to the Playhoi DOSP and the Developer. If a successor escrow agent is appointed jointly by the Playhouse, DOSP and the Developer wit the ten (10) day period, Escrow Agent may petition a court competent jurisdiction to name a successor. may and the for 6. Mutual Cooperation: All parties ackno ledge that in order to obtain the Board's and the State's conse is to and joinders in the modifications and similar instruments all par- ties must mutually cooperate at all times. The Playhouse, DOSP and the Developer covenant, represent and warrant to each other that they shall mutually cooperate and work together at no cost to the Developer (except the attorney's fees of the Developer) for the prompt fulfillment of the requirements of this Escrow Agreement, including 4l a) Developer's acceptance of reasonable modifications of the language in Exhibit B, if such reasonable modifications are requested by the Board, the Department of Natural Resources or the State; (b) Developer's prompt review and reasonable response to the proposed Playhouse/DOSP Retail Area Sublease; (c) the Playhouse and DOSP's prompt commencement and good faith duly diligent pursuit of the requirements in Subsectio 3.1; (d) all parties keeping all other parties apprised f their respective activities in fulfilling the provision off this Escrow Agreement; and (e) the Playhouse, DOSP fvF'VLFiLL- A.LlJ1i1M p"AWA CX* 10 e9MOO 1.k AWFI A. 3G and the Developer promptly delivering to Escrow Agent the joint instructions required in Subsection 3.2. 7. Notices. Any notices or other communication required to be permitted hereunder shall be sufficiently given if personally delivered or if sent by overnight courier service; if sent to the Playhouse, then sent to 3500 Main Highway, Coconut Grove, Florida 33133, Attention: Chairman and Artistic Director, with a copy sent to the Miami address of Fine Jacobson Schwartz Nash Block 6 England, Attention: Julie A.S. Williamson, Esq.; if sent to Escrow Agent, then sent to the Miami address of Fine Jacobson Schwartz Nash Block -4 England, Attention: Julie A.S. Williamson, Esq.; if sent to DOSP, then sent to Executive Director, Department of Off -Street Parking, 190 N.E. 3rd St., Miami, FL 33132, with a copy to the address of the Office of the City of Miami Attorney, Attention: Miriam Maer, Esq.; and if sent to the Developer, then sent to Coconut Grove Investments, Inc. c/o Mr. Jack Chambers and Mr. Seth Werner, Werner Capital Corporation, 2665 South Bay Shore Drive, Penthouse II, Coconut Grove, Florida 33133, with a copy sent to the Miami address of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Attention: Matthew B. Gorson, Esq. 8. Counterparts. This Escrow Agreement may be exe- cuted in multiple counterparts, all of which when taken together shall constitute one and the same agreement. 9. Jurisdiction. •This Escrow Agreement shall be con- strued and enforced according to the laws of the State of Florida. IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be executed on the date indicated next to their names below, effective on the date first above written. COCONUT GROVE PLAYHOUSE, INC., a Florida not -for -profit corporation iDate: By: [SEAL] -7- 10685, 3`7 *.1 THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, an agency and instrumentality of the City of Miami, a municipal corporation of the State of Florida Date: % By: 4itawagA.-_ —K#V , [SEAL] COCONUT INVESTMENTS, LTD., a Florida limited partnership Date: By: corpo t part r By• ?a Florida eneral [SEAL] Escrow Agent joins in this Escrow Agreement to acknowl- edge its receipt of the Purchase Project Agreements, and agrees to hold such documents pursuant to the provisions of this Escrow Agreement. WITNESSES: ESCROW AGENT: FINE JACOBSON SCHWARTZ NASH BLOCK Z ENGLAND, P.A. Date: / ZS �% By u e A.S. Williamson 184�L0007D/011788/05587.0001 -a- 0 e0+U �•• �t lv . to cteuJk-_.cA c1t'c,J A%k _ v 1 The aa--shed Exhibits are sketches of the ro erties described in this Agreements The properties described 'in each Exhibit may not, at the time of the execution of this T-sil raq Agreement, be described in the Department of States Lease, the Playhouse LeaDOSP Lease as being leased thereunder. The parties sue- -Agreement are s4multanewsly. executing an _Escrow Agreement pursuant- to which., .. a the subject underlying leases will be amen d so that the properties described in them will conform with the properties shown on the attached exhibits and DOSP shall obtain fee simple title to the DOSP Additional Parcel. it is the intent of the parties that the acquisition and clarification of the interests in property described in thiC -?sue Agreements shall have been realized and shall be true and correct at the time of the release of thg. Agreement&from escrow; Precise legal descriptions and sketches of all parcels shall be prepared and certified by a licensed surveyor and, upon confirmation by the parties hereto, shall be substituted for the attached Exhibits. The parties understand and agree that as the Playhouse Project progresses there may be certain adjust nts required in the boundaries of the parcels so that the bound ies will conform with the Playhouse Project as actually design and approved by all parties. These adjustments shall be agr d y all parties and included in the final Exhibitse 085R4160071D 1068194 V 59 EXHIBIT "B" TO ESCROW AGREEMENT 1. Language to be added to or included in the Lease Agreement► the DOSP Sublease, the Playhouse Sublease, and the Playhouse/DOSP Retail Area Sublease: Landlord hereby authorizes and consents to that certain sublease (the "Sublease") between DOSP, as sublessor, and Coconut Investments, Ltd., as sublessee (the "Sublessee"), in the form attached hereto as Exhibit . In addition, the Landlord covenants and agrees, for the —benefit of the Sub- lessee and any and all Space Tenant(s) (as defined in the Sublease) occupying any portion of the Private Development that in the event this Lease is terminated for any reason, the possession of the Sublessee and each such Space Tenant shall not be disturbed so long as the Sublessee and each Space Tenant shall not be in default under the Sublease or their respective Space Lease(s) (as defined in the Sub- lease), provided that the Subtenant and each Space Tenant shall attorn to the Landlord. The foregoing'nondisturbance provision shall be self -operative, and no further agreement between the Landlord and the Sublessee or any Space Tenant shall be necessary to effect the same; however, the Landlord agrees that from time to time, promptly upon the request of the Sublessee or any Space Tenant, the Landlord will enter into reasonably acceptable written agreements with the Sub- lessee or any Space Tenant, as applicable, confirming such agreement. The Landlord hereby consents to, and covenants and agrees for the benefit of the Sublessee and each Space Tenant to recognize and honor: (i) all the rights of Sub- lessee under the Sublease and the Tri-Party Agreement, in- cluding but not limited to Sublessee's rights with respect to casualty and insurance proceeds available therefrom, con- demnation and awards in connection therewith, and the separate right of Sublessee, apart from the tenant under this Lease to exercise either or both of the renewal options provided in Section 1.2(b) of the Sublease, provided that Sublessee exercises such renewal options within the appli- cable time periods provided therefor in said Section 1.2(b); and (ii) all of the rights of Sublessee's Leasehold Mort- gagees under the Sublease and the Tri-Party Agreement. 2. The following language shall be added to the DOSP Sublease: Without limiting the generality of the foregoing, Landlord hereby: (i) consents to the Sublease under which Coconut Investments, Ltd., is the sublessee (which sublessee is hereby deemed to be the "Private Developer" referred to in Section 14.01 above); (ii) recognizes the Sublease as the sublease contemplated by Section 14.01 above; and (iii agrees that the foregoing provisions shall apply to t e Sublease and any and all Space Tenants occupying any part c�E the Private Development. �l TABLE OF CONTENTS Page SL,A;: .!d and Purpose. • . • .............. • ...... 1 Arti,L; e 1 Provision. 3 Secti•in 1.1 Applicability of Statement of Background and Purpose..•...... 4 Section 1.2 Exhibits ......................... 4 Section 1.3 Definitions ...................... 4 Section 1.4 Conditions Precedent ...... •..•... 4 Section 1.5 Possession ..... .•..••.•...•••..•• 7 Section 1.6 Title ............................ 7 Section 1.7 Surveys.•.....•....•• ....... 7 Section 1.8 Term of Agreement ................ 8 Article Ii Reciprocal Access, Utility Connection and Foundation Easements.......••.•.•••..•.•.•.. 8 Section 2.1 Intent ........................... 8 Section 2.2 Easement Beneficiaries........... 8 Section 2.3 Access Easements ..............•.. 8 Section 2.4 Utilities and Drainage Easements ....................... 8 Section 2.5 Connection and Foundation Easements ...................... 8 Section 2.6 Maintenance and Use of Easements 9 Section 2.7 Indemnifications ....... ..••.•••.• 9 Section 2.8 Duration of Easements.........•.. 9 Section 2.9 Confirmatory Instruments..•.•.... 9 Section 2.10 Liens .................•........•. 9 Article III Plans ......................................... 9 Section 3.1 Concept Plans .................... 9 Section 3.2 Preliminary Plans ................ 10 Section 3.3 Basic Plans .......... :•....••.••. 10 Section 3.4 Construction Plans ............... 10 Section 3.5 DOSP-Playhouse Plan Approval Process ........................ 11 Section 3.6 Final Plans ...................... 12 Section 3.7 Conformity of Plans.............. 12 Section 3.8 Height Limitation and Foundation of Infrastructure Improvements ................... 12 Article IV Construction of Playhouse Project ............. 12 Section 4.1 Construction Contract............ 12 Section 4.2 Commencement of Construction; Contributions ................... 13 Section 4.3 Payment and Performance Bonds.... 13 Section 4.4 Permits and Approvals ...... ...•.. 14 Section 4.5 Progress of Construction......... 14 Section 4.6 Compliance with Laws ............. 14 Section 4.7 Certificate of Final Completion.. 14 Section 4.8 Alternate Parking ................ 15 Section 4.9 Art in Public Places ............. 15 Article V Maintenance,of Playhouse Project .............. 15 Section 5.1 Maintenance ...................... 15 Section 5.2 Security .... .................... 16 Section 5.3 Covenants Ru:,ning with the Land ........................... 16 Article VI Transfers; Mortgagees ......................... 16 Section 6.1. Transfers ........................ 16 Section 6.2 Mortgagees .................•.••.. 16 - i - 10685 �-t 1-1 Article VII insurance and Casualty.. 60 a 0 *006 0*04-00 16 Section 7.1 Developer's insurance.,.......... 16 Section 7.2 Responsible Companies - Blanket - .lnsuYanee Permitted............ 17 Section i', 3 Nactied• Insureds; Notice to DOSP ..and the Playhouse of Cancellation ................... 17 Section 7.4 DOSP or Playhouse May Procure Insurance if Developer Fails to Do So ....................... 17 Section 7.5 Insurance Does Not waive Developer's Obligations........ 18 Section 7.6 Loss or Damage Not To Terminate Rental or this Lease........... 18 Section 7.7 Proof of Loss .................... 18 Sect;.,-h 7.9 Property Insurance Proceeds...... 18 Secti..;.i 7.0 Cbvenant for Commencement and Completion of Reconstruction... 19 Section 7.10 Playhouse Insurance .............. 19 Section 7.11 Waiver of Subrogation Rights..... 19 Article VIII Default ....................................... 20 Section 8.1 Developer's Default............... 20 Section 8.2 DOSP's Default.. 20 Section 8.3 Playhouse's Default .............. 20 Section 8..4 Unavoidable Delay ................ 20 Section 8.5 Obligations, Rights and Remedies Cumulative ..................... 21 Article IX Mechanics' Liens; No Interference ............. 21 Section 9.1 Developer to Discharge Mechanics' Liens ............... 21 Section 9.2 Obligations of Playhouse......... 22 Article X Condemnation .................................. 22 Section 10.1 Entire Property Taken byCondemnation............... 22 Section 10.2 Partial Taking by Condemnation.. 22 Article XI Miscellaneous Provisions ...................... 23 Section 11.1 Certain Costs and Expenses...... 23 Section 11.2 No Partnership or Joint Venture 23 Section 11.3 Florida and Local Laws Prevail.. 23 Section 11.4 Conflicts of Interest........... 23 Section ll.5 Notice .......................... 24 Section 11.6 Titles of Articles'and Sections 25 Section 11.7 Counterparts .................... 25 Section 11.8 Successors and'Assigns.......... 25 Section 11.9 Approvals and Consents.......... 25 Section 11.10 Interpretation .................. 25 Section 11.11 Attorneys' Fees ................. 25 Section 11.12 Amendments ...................... 25 Section 11.13 Incorporation of Provisions of Retail Lease by Reference.. 25 Section 11.14 Consent of the Playhouse........ 25 Section 11.15 Exculpation ..................... 26 Section 11.16 Beneficial Interest of the Playhouse in the Retail Lease ......................... 26 Section 11.17 Extension of Terms of Senior Leases and the Playhouse Lease., .......... o ....... o..o. 26 10 685 it 4Z TRI-PARTY AGREEMENT THIS AGREEMENT is made this ' •.; of 1989, by and among COCONUT INVESTMENTS, Li.;!., �.orida 3rFi ed partner- ship ("Developer"), THE DEPARTMENT UFF-STREET PARKING OF THE CITY OF MIAMI, an agency and instrumen�ality of the City of Miami, a municipal corporation of the State of Florida ("DOSP"), and COCONUT GROVE PLAYHOUSE, INC., a Florida not -for -profit corporation ("Playhouse"). STATEMENT OF BACKGROUND AND PURPOSE A. Overview On January 27, 1987, the Governing Committee for the Coconut Grove Playhouse Project ("Governing Committee") issued a request for proposals ("RFP") and submitted the same to the general pub- lic requesting proposals from private parties for the planning, design, construction, leasing and management of a multi -use project to be located on the property surrounding the existing Coconut Grove Playhouse in Miami, Florida, under a long-term sublease agreement with DOSP, and as a part thereof to design and construct a parking facility for DOSP and certain adaptive improvements and infrastructure improvements to benefit and en- hance the Playhouse (collectively, the "Playhouse Project"). On June 1, 1987, Developer timely submitted its response (the "Response"). to the RFP and the Governing Committee accepted the Developer's Response subject to certain concerns to be negotiated between the parties. As a result of those negotia- tions, DOSP and the Developer have entered into a long-term sublease of even date providing for the leasing to the Developer of the retail portion of the Playhouse Project and the parties hereto have concurrently entered into this Agreement to govern the construction of the agreed improvements and certain aspects of the subsequent management and operation of their respective properties. B. Prior Leases and Condemnation Prior to the execution of this Agreement, the following leases were entered into: 1. On August S. 1981, the Board of- Trustees of the Internal Improvement Trust Fund of the State of Florida (the "Board -of Trustees") entered into a cer- tain lease with the State of Florida Department of State (the "Department of State") which lease was amended by amendments dated July 31, 1986 and September 15, 1986 (as amended from time to time, the "Department of State Lease") pursuant to which the Board of Trustees, as lessor, leased to the Department of State, as lessee, all of that certain parcel of land located in the City of Miami, Dade County, Florida, as more particularly described on Exhibit "A" attached hereto (the "Department of State Premises"). 2. On January 27, 1982, the Department of State entered into a long-term sublease with the Playhouse which lease was amended on July 24, 1985 (as amended from time to time, the "Playhouse Lease") pursuant to which the Playhouse subleased from the Department of State a portion of the Department of State Premises located at 106854 43 the northeast corner of the intersection of Main Highway and Charles Avenue as more particularly described in Exhibit "B" attached hereto (the "Main Playhouse Parcel"). 3. On June 1, 1986, tht Department of State entered into a long-term sublease (as amended from time to time, the "DOSP Lease") pursuant to which DOSP subleased a portion of the Department of State Premises surround- ing the Main Playhouse Parcel as more particularly described in Exhibit "C" hereto (the "Original DOSP Parcel"). The stated purpose of the DOSP Lease was to enable DOSP to construct a multilevel parking garage (the "Parking Garage") on a portion of the DOSP Parcel and to sublet a portion thereof to a private party who would agree to construct a privately owned commercial development thereon. 4. On December 26, 1988, a Stipulation and Consent Final Judgment was adcepted, adopted and approved by the Dade Circuit Court in Case No. 88-34665 CA(21), pursuant to which DOSP has acquired title to certain property fronting on Main Highway adjacent to the DOSP Parcel on the northeast, as more particularly des- cribed in Exhibit "D" attached hereto (the "DOSP Addi- tional Parcel"). C. Contemporaneous Sublease Contemporaneously with the execution and delivery of this Agreement, but subject to the satisfaction of certain conditions set forth in this Agreement and the "Retail Lease" (as defined below), DOSP is entering into a long-term sublease (the "Retail Lease") with the Developer pursuant to which the Developer is subleasing from DOSP: (i) certain property fronting on Main Highway which is a portion of the Main Playhouse Parcel on the east as more particularly described in Exhibit "E-1" attached 'hereto ("the Adjacent Playhouse Parcel"), (ii) a portion of the ground floor of the Playhouse building now located on the Main Playhouse Parcel as more particularly described in Exhibit "E-2" attached hereto (the "First Floor Retail Area"), (iii) the DOSP Additional Parcel, and (iv) a portion of the Original DOSP Parcel, all as more particularly described in. Exhibit "F" attached hereto (collectively, the "Retail Parcel"). D. Intended Leasehold Rights Through a series of leasing transactions,.the Playhouse has acquired a long-term leasehold interest in the Adjacent Playhouse Parcel, and the Playhouse has leased the Adjacent Playhouse Parcel and the First Floor Retail Area to DOSP pursuant to a long-term lease (the "Restaurant/First Floor Retail Lease"). DOSP has also entered into a long-term lease (the "Infrastructure Lease") with the Playhouse pursuant to which the Playhouse has leased from DOSP a portion of the Original DOSP Parcel adjacent to the Main Playhouse Parcel on the southwest, as more particu- larly described in Exhibit "H" (the "Infrastructure Parcel"). As a result of the Retail Lease and the leasing transactions des- cribed above between DOSP and the Playhouse: 1. The Playhouse has acquired and/or retained the tenant's leasehold interest in and to the Main Play- house Parcel (excluding the sublet Adjacent Playhouse` Parcel and First Floor Retail Area) and the Infra- structure Parcel (collectively, the "Playhouse Parcel"); - 2 - 2. The Developer has acquired the tenant's leasehold interest in and to the Retail Parcel; and 3. DOSP has retained the tenant's leasehold interest in and to the balance of the Original DOSP Parcel, as more particularly described in Exhibit "G" attached hereto (the "Garage Parcel"). The Playhouse Parcel, Retail Parcel and Garage Parcel together comprise the same property as the Department of State Premises and the DOSP Additional Parcel; they are collectively referred to hereinafter as the "Playhouse Property." E. Improvements. Pursuant to Developer's Response as subsequently negotiated among the parties. Developer has agreed, subject to fulfillment of the conditions precedent and in accordance with the terms and agreements hereinafter set forth, to constructs 1. certain adaptive improvements (the "Adaptive Improve- ments") for the benefit of the Playhouse to the.exist- ing building located on the Main Playhouse Parcel and consisting generally of the remodeling of certain improvements on the first and second floors of the Playhouse and the construction of a lobby for the new theatre and dressing areas; 2. certain infrastructure improvements (the "Infrastruc- ture Improvements") for the benefit of the Playhouse on the Infrastructure Parcel and portions of the Main Playhouse Parcel consisting of approximately 55,000 square feet gross enclosed floor area of performing arts related space, such as a second stage, classrooms and related items on three levels; 3. the Parking Garage for the benefit of DOSP on the Garage Parcel which will consist of an off-street parking facility to contain a minimum of 500 parking spaces; and 4. the "Private Development" for the benefit of Developer on the Retail Parcel which will include the demolition. of the building now located on the DOSP Additional Parcel, the refurbishing of the improvements on the Adjacent Playhouse Parcel and the First Floor Retail Area, and the construction of new retail space to the effect that, in the aggregate, Developer will have available for leasing as retail space approximately 30000 square feet of floor area within the Retail Parcel; all as generally depicted in the "Concept Plans" (as defined in Section 3.1 below) and as approved by the Playhouse and DOSP as provided in Article iII hereof. The Adaptive Improvements, Infrastructure improvements, the construction of the Parking Garage and the construction and reno- vation of the Private Development, collectively comprise the "Playhouse Project." NOW, THEREFOU, IN CONSIDERATION OF the foregoing, the cove- nants and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are - 3 - 1 t i �5 hereby acknowledged, DOSPe Playhouse and Developer hereby cove- nant and agree as follows: ARTICLE I GENERAL PROVISIONS Section 1.1. . Aoolicability of Statement of Background and ,P,uur�r,v�os��e. The Statement of Background and Purpose is a desc ip- t-�—of the current intent of the parties with regard to develop- ment and construction of the Playhouse Project and is intended to be an aid to the understanding of this Agreement but it is not intended to limit the rights or the obligations of the parties except to the extent that it contains definitions and terms which are used elsewhere in this Agreement. The square footages and descriptions in the Statement of Background and P»rpose are for illustrative purposes only. Section 1.2. Exhibits. All Exhibits attached to this Agreement are incorporate�ierein by this reference. Section 1.3. Definitions. Unless otherwise provided herein, all initial capital d terms used in this Agreement shall have.the same definitions and.meanings given -to them in the Retail Lease of even date. Section 1.4. Conditions Precedent. Except as provided in this Article I, all of the o gat ons of the parties under this Agreement shall be subject to and conditioned upon the satisfac- tion of the following conditions precedent: (a) DOSP and the Playhouse shall have approved the Pre- liminary Plans, the Basic Plans, and Construction Plans for the Playhouse Project as defined in and provided by Article III below; (b) Developer shall have obtained all governmental approv- als and permits (including any necessary zoning and environmental approvals and/or variances and general building permits) necessary for construction of the Playhouse Project in accordance with the approved Construction Plans therefor except only for those separate permits which are generally obtained directly by the trade subcontractors (such as elevator permits) and except for any permits for ancillary work; (c) DOSP and the Playhouse shall have approved the commit- ment(s) for the construction (and/or mini -permanent) financing of the Playhouse Project, which approval shall not be unreasonably withheld or delayed. Not- withstanding the foregoing, DOSP and the Playhouse may not disapprove any such financing commitment(s) if they are from Institutional. Investors and if they contain terms and conditions generally prevailing in the then current market place. In addition, Developer (or the owners of some or all beneficial interests of Developer) may, at its (or their) option, self -finance all or a portion of the Playhouse Project and DOSP and the Playhouse may not disapprove any such financing; provided, however, that Developer (or the owners of some or all of the beneficial interests of Developer) have not requested an interest rate in excess of then current market rates for similar loans being made by Institutional. Investors and the terms and conditions of said self-financing shall be those generally prevailing in the then current marketplace. The total - 4 - J.®681% 1-1 financing for the construction of the Playhouse Proj- ect from all sources may not exceed the Development Costs. Upon receipt of a request for approval of the con- struction financing (which request shall include either a copy of the commitment or application there- for or otherwise a description of the material business terms thereof), Playhouse and DOSP shall have a period of fifteen (15) days to review same and notify Developer in writing of its approval or dis- approval of such proposed financing. If no written response is received within such. fifteen (15) day period, then the request shall automatically be deemed approved. Any disapproval must be in writing and must state the reasons therefor, including a specific designation of which conditions and terms are not prevailing in the then current marketplace. (d) Developer shall have closed and obtained initial fund- ing of the approved construction financing for the Playhouse Project. (e) DOSP shall have obtained funding, through the issuance by the City of Miami of tax exempt industrial revenue bonds (or other form of governmental financing) of all sums necessary to be contributed by DOSP towards the construction of the Parking Garage and all such funds shall have been placed in escrow as required by Section 4.2 below. (f) The Playhouse (and/or the State of Florida on behalf of the Playhouse) shall have funded the sum of One Million and No/100 ($1,000,000.00) Dollars towards the cost of construction of the Adaptive Improvements and Infrastructure Improvements into an escrow account with Developer's construction lender for disbursement in accordance with the provisions of Section 4.2 below. (g) Developer shall have confirmed that there are no ab- normal soil or subsurface conditions on the Playhouse Property which could interfere with typical construc- tion reasonably anticipated for the construction des- cribed in the "Concept Plans." In that regard, Devel- oper shall be given reasonable access to the Playhouse Property for the purpose of making inspections, test borings and performing subsurface engineering gener- ally required under sound and prudent engineering practices, and Developer will correlate the results of - its inspections, borings and engineering with the requirements for construction of the Playhouse Project and make the same available to the Playhouse and DOSP. Developer shall restore, at Developer's Cost, the Playhouse Property to its original condition after all testing and Developer shall hold the Playhouse and DOSP harmless from all liabilities, costs and damages for injury to persons or property that arise as a result of any such inspections or tests. (h) Developer shall have obtained an environmental audit of the Playhouse Property from Dames & Moore or another recognized environmental inspection company which confirms that there is not now nor has there. ever been (i) the presence of any "Hazardous Sub- stance" (as defined below) on the Playhouse Property, (ii) any present or past generation, recycling, reuse, - 5 - IOGSS sale, storage, handling, transport, and/or disposal of any Hazardous Substance on the Playhouse Property, nor (iii) any failure to comply with any applicable local, state or federal environmental laws, regulations, ordinances or administrative or judicial ordinance relating to the. generation, recycling, reuse, sale, storage, handling, transport and/or disposal of any Hazardous Substance. The term "Hazardous Substance" as used herein shall mean any substance or material defined or designated as a hazardous or toxic waste material or substance, or other similar term, by any federal, state or local environmental statute, regula- tion or ordinance presently or hereafter in effect, as such statute, regulation or ordinance may be amended from time to time. Developer shall be given access to the Playhouse Property for the purpose of conducting the environmental audit. Developer shall restore the Playhouse Property to its original condition after the environmental audit. If the environmental audit reveals that any portion of the Playhouse Property is contaminated with a Hazardous Substance, then DOSP and/or the Playhouse may, at their expense, perform the necessary clean-up work at their discretion. In the event both DOSP and the Playhouse elect not to perform such clean-up, then Developer will have the option to either: (i) perform such work at Devel- oper's cost, or (ii) terminate this Agreement. In the event this Agreement is terminated as a result of a finding of contamination of portions of the Playhouse Property, then DOSP and the Playhouse shall be solely responsible to pay for the cost of the environmental audit. In the event all of the conditions precedent are satisfied, then the Developer shall pay the cost of the environmental- audit; and, if all of the conditions precedent are. not so satisfied, and this Agreement is terminated for reasons other than contamination, then the three (3) parties to this Agreement shall each pay one-third (1/3) of the cost of the environmental audit. (i) Developer shall have entered into a maximum fixed price construction contract with an approved contrac- tor for construction of the Playhouse Project in accordance with the provisions of Section 4.1 below. (j) Playhouse and/or DOSP shall have entered into an agreement with AllRight Miami, Inc. (or another independent, third party parking company) for alter- nate parking during performances at the Playhouse until the Parking Garage has been completed in accordance with the provisions of Section 4.8 below. All of the parties shall cooperate with one another and use their good faith efforts to promptly satisfy the aforesaid conditions precedent. It is recognized by the parties hereto that it is not the intention of any party to encumber the Playhouse Property with this Agreement for an indefinite period of time during the period of satisfaction of the conditions precedent. Any party shall have the right to terminate this Agreement if all of the aforesaid conditions precedent are not satisfied on or before twelve (12) months following the date hereof. In the event the foregoing conditions precedent are timely satisfied or waived in writing by the parties, then: (i) the parties shall promptly execute a certificate in recordable form acknowledging the satisfaction of same (the date of such certificate being hereinafter referred to as the "Satisfaction Date"), (ii) all of the parties' obligations under this Agreement shall thereafter be in full force and effect; and (III) the parties shall be governed by the terms, covenants and agreements hereinafter set forth. In the event the foregoing conditions precedent are not timely satisfied, then this Agreement and the Retail Lease shall be deemed terminated and of no further force or effect, and the parties shall be released from all further obligations hereunder and thereunder. Section 1.5. Possession. Promptly following the Satis- faction Date: (i) DOSP shall -deliver exclusive possession of the Retail Parcel and the Garage Parcel to Developer and the Play- house shall deliver exclusive possession, subject to the ease- ments and rights of inspection reserved below, of the Infra- structure Parcel and nonexclusive possession (in tandem with the Playhouse) of the Main Playhouse Parcel to Developer for the purpose of commencing and maintaining the construction work required of Developer pursuant to Article IV hereof. The parties believe that the granting of the right of possession with respect to the Retail Parcel for purposes of construction of the Private Development portion of the Playhouse Project should not subject the Retail Parcel to ad valorem real estate taxes; however, to the extent that the granting of such possessory right is deter- mined by appropriate authority to render the Retail Parcel sub- ject to such real estate taxes, then for the period of time, that possession is granted for purposes of -construction pursuant to this Agreement (which period 'shall end upon the commencement of the term of the Retail Lease), the parties agree.to each pay one- third (1/3rd) of the cost of such taxes prorated for said period of time. Section 1.6. Title. DOSP represents, covenants, and warrants to Developer that DOSP is the owner of the tenant's leasehold estate to the Garage Parcel and the Retail Parcel (ex- cept only for the portion thereof described as the DOSP Addi- tional Parcel which DOSP represents, covenants and warrants to Developer that DOSP owns in fee simple) free and clear from all reservations, covenants, easements, restrictions, liens, or clouds on title except for those permitted title matters listed in Exhibit "I" attached hereto; and DOSP further represents, covenants and warrants to Developer that DOSP has a valid right to enter into this Agreement and to permit Developer to construct the Parking Garage and Private Development on the Garage Parcel and the Retail Parcel, respectively. Playhouse represents, covenants, and warrants to Developer that Playhouse is the owner of the tenant's leasehold estate to the Playhouse Parcel free and clear from all reservations, covenants, easements, restrictions, liens or clouds on title except for those permitted title matters listed in Exhibit "I" hereto; and Playhouse further represents, covenants, and warrants to Developer that Playhouse has a valid right to enter into this Agreement and to permit Developer to construct the Adaptive Improvements and the Infrastructure Improvements on the Playhouse Parcel. Section 1.7. Surveys. DOSP and the Playhouse have requested that Developer commission on their behalf surveys of the Playhouse Property and all improvements located thereon, and sketches of surveys for all parcels affected by the leases and deeds in the chain -of -title to the Playhouse Property. The surveying costs shall be shared as follows: all surveying costs attributable to obtaining the base legal descriptions of the Playhouse Parcel, the Retail Parcel, and the Garage Parcel shall be paid by all three (3) parties in even one-third (1/3) por- tions; all surveying costs attributable to title work and deter- mining information concerning the effect of underlying leases shall be paid by DOSP and the Playhouse in even one-half (1/2) portions; and all surveying costs attributable to location of set - 7 - 106854 An back and zoning lines for purposes of obtaining building permits and construction shall be paid by Developer. Section 1.8. Term of Agreement. Except as provided in Section 4.7 below, t e term of this Agreement shall be co- extensive with the term of the Retail Lease (as the same may be extended) ARTICLE II RECIPROCAL ACCESS, UTILITY CONNECTION AND FOUNDATION EASEMENTS Section 2.1. Intent. The parties recognize and agree that,, upon completion of the Playhouse Project, each party will respectively be occupying and using parcels (and the improvements thereon) which lie adjacent to one another, and further, in some cases, that the improvements will interconnect. As a result, the parties have agreed to certain reciprocal easements as herein- after provided with respect to utilities, connections of improve- ments, and installation of foundations. Further, since portions of all of the parcels will be available to the general public in their operation, the parties have agreed to certain reciprocal pedestrian. access.. rights.all as more particularly hereinafter set forth. Section 2.2. Easement Beneficiaries. The easements granted herein shall be for the benefit of the respective parties hereto as the owners of the tenant's leasehold interest in the respective parcels controlled by each party (i.e., the Playhouse Parcel by the Playhouse, the Garage Parcel by DOSP, and the Retail Parcel by Developer), and their respective successors and assigns. Section 2.3. Access Easements. DOSP, Developer and Play- house each grant unto the other parties hereto, for the benefit of the respective parcels controlled by such parties, a non- exclusive easement for pedestrian access (both ingress and egress) over those portions of the public common area walkways as shown and located on the Construction Plans to be approved pursu- ant to Article III hereof, and upon such other common areas as may from time to time be agreed in writing among the parties. Section 2.4. Utilities and Drainage _Easements. DOSP, Developer and Playhouse each grant unto the other parties hereto, for the benefit of the respective parcels controlled by such parties, easements for the location of all utility lines and facilities (including water, gas, electric, telephone and storm and sanitary sewer) and for drainage in the locations as shown in the Construction Plans to be approved pursuant to Article III hereof, and upon such other areas as may from time to time be agreed in writing among the parties. In addition, each of the parties shall have the right to access as reasonably necessary to repair or replace any and all utilities lying within the easement areas. ' Section 2.5. Connection and Foundation Easements, DOSP, Developer and Playhouse each grant unto the other parties hereto, for the benefit of the respective parcels controlled by such parties, (i) nonexclusive cross easements for common or abutting foundations and nonmaterial encroachments of improvements installed on said foundations over any common property lines by Developer in its construction of the Playhouse Project or as subsequently agreed to among the parties in writing, (ii) the right and easement to connect improvement structures as shown in the approved Construction Plans, (III) the right to construct, - 8 - 10685, iaintain, repair and replace connected portions of the improve- *nts lying on their respective parcels from the improvements ,ying on an adjacent parcel to the extent reasonably necessary to ie conducted from another party's parcel and without material ,nterference of the operation of any business by the other party; ind (iv) reasonable access to the applicable improvements for the >urposes set forth in (i), (ii), and (iii) above. Section 2.6. Maintenance and Use of Easements. Each of :he easement beneficiaries► respect ve y► shall at all times ,epair and restore, as necessary as a consequence of its use, the portions of any other party's improvements and/or parcel used by :hem pursuant to the easement rights herein granted in a clean, )rderly and reasonably attractive manner and in such a way that the -same shall not unreasonably interfere with normal and cus- tomary use of the applicable improvements, nor shall such use ever impair the structural integrity of any party's property or require any extraordinary maintenance thereof. Promptly upon completion of any repair or maintenance activities, the parties performing same shall, at its expense, restore the surface of all easement areas as nearly as possible to their former condition and appearance. Section 2.7. Indemnifications. Each of the parties (the "Indemnit.or") hereto (on behair. o themselves and their respec- tive contractors, subcontractors, agents, suppliers, employees, patrons, customers and invitees) hereby agrees to indemnify, defend and hold the other parties (singularly, an "Indemnitee") hereto harmless from and against any and all liabilities, damages, liens, claims, costs or expenses whatsoever (including reasonable attorneys' fees and court costs whether suit be brought or not, or any appeals be taken therefrom) arising from, growing out of or connected with the use by the Indemnitor of the easements herein granted, except to the extent any liability, damage, lien, claim, cost or expense is a result of the negli- gence or willful misconduct of the Indemnitee. Section 2.8. Duration of Easements. Each of the ease- ments granted by this Article II shall continue until the expira- tion of the term of the Retail Lease (as the same may be ex- tended). Section 2.9. Confirmatory Instruments. Each party cove- nants and agrees that rom time to time at the request of any of the other parties, it shall execute and deliver such additional documents or instruments in recordable form confirming the rights and easements granted by this Article II, and, to the extent feasible, more precisely fixing the location of such easements as such requesting party shall deem to be necessary or desirable. Section 2.10. Liens. No party shall create or permit to be created any mechanic- lien or other lien against the estate of any other party in, on, over or under any easement area created by this Article 11. ARTICLE III PLANS Section 3.1. Concept Plans. Prior to the execution of this Agreement, DOSP and Playhouse have approved the concept plans (the "Concept Plans") for the Playhouse Project, which are those plans entitled Coconut Grove Playhouse Center, Preliminary Floor Plant Levels 1, 2, 3 and 4, and scope descriptions entitled "Design Introduction," "Design Concept," and "Project Description," prepared by The Haskell Company, dated September 26, 1988. - 9 - 10685, .S Section 3.2. Preliminary Plans. Developer shall submit to DOSP and the Playhouse on or before the ninetieth (90th) day following the date hereof, five (5) sets of Preliminary Plans for approval in accordance with the DOSP-Playhouse Plan Approval Process described in Section 3.5 below. DOSP's and Playhouse's right to disapprove the Preliminary Plans submitted shall be limited to: (i) matters depicted in the Preliminary Plans which do not conform substantially to the Concept Plans; or (ii) new elements not presented in the Concept Plans which are' not reason- ably necessary for the construction of the Playhouse Project; or (III) matters which are violations of this Agreement or of appli- cable governmental ordinanceso codes, laws or regulations. The term "Preliminary Plans" as used in this Agreement shall mean site plans and structure elevations of the Playhouse Project in sufficient detail to show site planning, architectural design and layoutr landscape design, access, streets, and sidewalks and such other matters as may be necessary to obtain zoning and site plan (but not building) approvals for construction of the Playhouse Project, including appropriate written scope descriptions relating thereto. Section 3.3. Basic Plans. On or before the one hundred twentieth (120th) day o owing obtaining of the necessary zoning and site plan approvals for construction of the Playhouse Project, Developer shall submit to DOSP and. the Playhouse Basic Plans in accordance with the DOSP-Playhouse Plan Approval Process described in Section 3.5 below; provided, however, said 120-day period shall be extended day -for -day by the number of days in excess of five (5) days taken by the Playhouse's "theater design consultant" to respond to each of Developer's requests for comments or information in the course of Developer's preparation of the Basic Plans. DOSP's right to disapprove the Basic Plans submitted shall be limited to: (i) matters depicted in the Basic Plans which do not conform substantially to the approved Prelim- inary Plans or previously approved Basic Plans for other phases of the Playhouse Project; or (ii) new elements not presented in the approved Preliminary Plans; or (iii) matters which are viola- tions of this Agreement or of governmental ordinances, codes, or regulations. The term "Basic Plans" as used in this Agreement shall mean (a) preliminary archirectural floor plans of each area showing arrangement of rooms and spaces along with access and exiting; (b) sections indicating basic vertical heights and gen- eral materials of construction; and (c) descriptions of engineer- ing systems to be provided including structural, heating, ventil- ation and air conditioning, fire protection, and electrical, and including appropriate written scope descriptions relating thereto. Section 3.4. Construction Plans. On or before the ninetieth (90th) day following DOSP s and the Playhouse's final approval of the Basic Plans, Developer shall submit to DOSP and the Playhouse Construction Plans in accordance with the DOSP- Playhouse Plan Approval Process described in Section 3.5 below; provided, however, said 90-day period shall be extended day -for - day by the number of days in excess of five (5) days taken by the Playhouse's "theater design consultant" to respond to each of Developer's requests for comments or information in the course of Developer's preparation of the Construction Plans. DOSP's right to disapprove the Construction Plans submitted shall be limited to: (i) matters depicted in the Construction Plans which do not conform substantially to the approved Preliminary Plans, the approved Basic Plans, or previously approved Construction Plans for other phases of the Playhouse Project; or (ii) new elements not presented in the approved Preliminary Plans or the approved Basic Plans; or (III) matters which are violations of this Agreement or of governmental ordinances, codes, or regulations. No approval by DOSP of any Construction Plans, Basic Plans or - 10 - 10685, 52.. Preliminary Plans pursuant to this Article III shall relieve Developer of any obligation it may have at law to file the Con- struction Plans with any department of the City of Miami or any other governmental authority having jurisdiction over the issues or to obtain any building or other permit or approval required by law. The term "Construction Plans" as used in this Agreement shall mean final working plans and specifications for the Play- house Project including the following information: (a) defini- tive architectural drawings, (b) definitive foundation and structural drawings, (c) definitive electrical and mechanical drawings including plans for all lighting facilities affecting the exterior appearance of the Playhouse Project; and (d) final specifications, but excluding drawings and specifications relating to Space Tenant improvements, and including appropriate written specifications and/or scope descriptions relating thereto. The Construction Plans shall also include a projected progress schedule for completion of the various phases of the Playhouse Project. Section 3.5. DOSP-Playhouse Plan Aeproval Process. DOSP and the Playhouse shall have a period of thirty () 7ays after receipt of either of the Preliminary Plans or the Construction Plans to advise Developer in writing of their approval or dis- approval of same. If no written disapproval is received by Developer within such thirty (30) day period, then said plans shall automatically be deemed approved. If the Playhouse shall disapprove (or approve) and DOSP shall take a contrary position, and if DOSP and the Playhouse are unable to resolve such issue among themselves on or before the thirtieth (30th) day following receipt of such plans, the matter will be submitted to the Gov- erning Committee for resolution. The decision of the Governing Committee shall be final and binding upon both DOSP and the Play- house. If the Governing Committee shall fail to reach a decision and notify Developer of same in writing by the sixtieth (60th) day following the initial receipt by DOSP and the Playhouse of such plans, said plans shall automatically be deemed approved by both DOSP and the Playhouse. DOSP and the Playhouse shall notify Developer on or before the thirtieth (30th) day following their receipt of the Prelimin- ary Plans or the Construction Plans of any disapproval of said plans together with the specific reasons therefor in accordance with the .standards for review provided in this Agreement and the steps necessary to correct same. In the event of a proper dis- approval of which Developer is duly notified, Developer shall, within thirty (30) days after the date Developer receives the notice of such disapproval, resubmit such Preliminary Plans to DOSP and Playhouse, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by DOSP and the Playhouse pursuant to the foregoing DOSP-Playhouse Plan Approval Process, until the same shall be finally approved by DOSP and the Playhouse (except that all of the time periods afforded for review of any resubmissions by Developer shall be one-half the length of time otherwise provided for in the original submission). DOSP, Playhouse and Developer shall all in good faith at- tempt to resolve any disputes concerning the plans .and DOSP and the Playhouse shall not unreasonably withhold their consent to any such requested approval. Developer acknowledges that any plan approval given by DOSP or Playhouse shall not constitute an opinion by DOSP or Playhouse that the plans are structurally sufficient or in compliance with any laws, codes or other appli- cable regulations, and no approval shall impose any liability on DOSP or the Playhouse, other than the rights of approval granted to DOSP and the Playhouse pursuant to this Article III. All plans as finally approved by DOSP and Playhouse shall be ini- 1068-51 53 tialled by DOSP, Playhouse, and Developer, and shall be and are incorporated into this Agreement by this reference. Section 3.6. Final Plans. Developer agrees that it shall provide DOSP and Playhouse nth copies of all final "as -built" plans and specifications used in the construction of the Play- house Project. All final "as built" plans and specifications with respect to the Parking Garage shall become the sole and exclusive property of DOSP. All final "as built" plans and specifications with respect to the Adaptive Improvements and the Infrastructure Improvements shall become the sole and exclusive property of the Playhouse. Section 3.7. Conformity of Plans. Preliminary Plans and Construction Plans anW all work by Developer with respect to the Playhouse Project and the construction thereof shall be in con- formity with this Agreement and all applicable state, county and local laws and regulations. Section 3.8. Height Limitation and Foundation of Infra- structure Improvements. Developer agrees that the maximum eig-ht of the Private Development shall not exceed fifty (50) feet above the adjacent street level. Developer agrees that the foundation of the Infrastructure Improvements shall be designed and con- structed in a manner which will enable the Playhouse to add an additional level of enclosed residential space atop the highest level of the Infrastructure Improvements after the "Completion Date" (as defined in Section 4.7 below) without. having to' first reinforce the foundation of•the Infrastructure Improvements. ARTICLE IV CONSTRUCTION OF PLAYHOUSE PROJECT Section 4.1. Construction Contract. Upon final approval of the Construction Pans and satisfaction of the other condi- tions precedent set forth in Section 1.4 above (other than sub- section (h) thereof), Developer shall enter into a maximum fixed - price construction contract with a general contractor reasonably acceptable to DOSP and the Playhouse for the construction of the Playhouse Project which construction contract shall be bonded as to both payment and performance in favor of each of the parties hereto and Developer's construction lender, as their interests may appear, such bonds to be issued as provided below, and such bonds -to cover substantially all of the Playhouse Project. The Playhouse and DOSP shall not unreasonably withhold or delay their consent to the proposed general contractor and shall in any event give their approval or disapproval within five (5) days following receipt of a request for same. Any disapproval shall be accom- panied with the reasons therefor. Failure to disapprove in writing within such five (5) day period shall automatically be deemed an approval of the general contractor. Anything to the contrary notwithstanding, any general contractor which has been approved by a Leasehold Mortgagee which is an Institutional Lender (except the Developer) shall not require the approval of DOSP and the Playhouse. The parties hereby stipulate and agree that The Haskell Company is an acceptable general contractor. The construction contract with the general contractor shall include a provision to the effect that the general contractor will not discriminate on the basis of race, color, religion, sex, age, or national origin in subcontracting for the construction of the Playhouse Project. The construction contract shall, to the extent permitted by Developer's construction lender and subject to such lender's prior rights, be collaterally assigned to DOSP and the Playhouse. - 12 - 10685, Cr%1_ Section 4.2. Commencement of Construction; Contribu- tions. Within sixty () days after satisfaction oall of t e conditions precedent set forth in Section 1.4, Developer shall commence construction of the Playhouse Project in substantial accordance with the approved Construction Plans. All Construc- tion Costs shall be at the sole cost and expense of Developer except that; (a) DOSP shall contribute to Developer the sum of Four Million Eight Hundred Thousand and No/100 Dollars ($4,800,000.00) (the "DOSP Contribution") (provided that to the extent the Parking Garage contains less than five hundred (500) parking spaces, then such sum shall be reduced by an amount equal to Nine Thousand Six Hundred and No/100 Dollars ($9,600.00) per space for each parking space to be constructed in the Parking Garage pursuant to the Construction Plans less than five hundred (500)); (b) Playhouse shall contribute to Developer and the sum of One Million and No/100 Dollars ($1,000,000.00) (the "Playhouse Contribution"); and (c) Playhouse shall contribute to Developer all sums as are necessary for payment of the .hard and soft costs incurred by Developer in order to make the existing improvements on the Playhouse Parcel comply or conform to current governmental and/or fire underwriting codes, regulations and requirements. The Playhouse Contribution shall be made by the Playhouse (and/or the State of Florida on behalf of the Playhouse) to an escrow account to be maintained with the Institutional Lender providing the construction financing for the Playhouse Project and such sum shall be disbursed in accordance with the provisions for disbursement provided for in the construction loan documents (which shall be those generally prevailing for construction loans from Institutional Lenders) except only that the disbursement of the Playhouse Contribution shall be made pro rate based on the percentage of completion of the Adaptive Improvements and the Infrastructure Improvements. The DOSP Contribution shall be made by DOSP to an escrow account to be maintained with the indepen- dent trustee designated pursuant to the bond financing under which the DOSP Contribution was funded, and the DOSP contribution shall be disbursed to Developer monthly on a pro rata basis, based on the percentage of completion of the Parking Garage. Any amounts required to be contributed by the Playhouse pursuant to subparagraph 4.2(c) above shall be funded on a monthly basis as funds are required for construction work covered thereby; pro- vided however, that to the extent that a separate building permit can be obtained for any work necessary pursuant to subparagraph 4.2(c) above, then the Playhouse shall have the option to obtain such permit in its own name and perform any such work separately, at its own expense. All costs and expenses incurred by Developer in connection with the construction of the Playhouse Project in excess of the amounts to be contributed by DOSP and Playhouse shall be paid for by Developer. Section 4.3. Payment and Performance Bonds. Prior to the commencement of construction of the Playhouse Project, Developer shall provide DOSP and the Playhouse with one hundred (100%) per- cent payment and performance bonds (in statutory form or other wise in form acceptable to Developer's Institutional Lender pro- viding construction funding) to DOSP and Playhouse with respect to the construction of substantially all of the work under the approved construction contract entered into pursuant to Section 4.1 above, which bonds shall name DOSP and Playhouse in addition to Developer's Institutional Lender providing construction funding as co -obligees. 10685, - 13 - r� r; Section 4.4. Permits and Agerovals. Developer shall secure and pay for anyr an3 all permits a d approvals necessary for, proper construction and completion of the Playhouse Project. Section 4.5. Progress of Construction. Developer shall commence construction of the P`layFouse Pro ect not later than sixty (60) days after the Satisfaction Date or as soon thereafter as weather permits, and to the extent reasonably feasible shall proceed with said construction in accordance with the progress schedule approved as part of the Construction Plans. Developer shall keep DOSP and the Playhouse apprised of the progress of the Playhouse Project. To the extent reasonably feasible, given the need to promptly complete the Parking Garage and Retail Improve- ments, the scheduling of all construction work on the Playhouse Property shall minimize interference with the normal operations of the Coconut Grove Playhouse. During such period the work of Developer shall be available .for reasonable inspection by repre- sentatives of DOSP and the Playhouse, provided that DOSP and the Playhouse give Developer reasonable advance written notice there- of and do not interfere with the progress of Developer's con- struction work. Further, DOSP and the Playhouse hereby agree to indemnify and hold Developer harmless from all liabilities, damages, claims, costs and expenses whatsoever (including reason- able attorney's fees and court costs whether suit be brought or not and whether appeal will be taken therefrom) resulting from or arising out of any such inspections, except that DOSP and Play- house shall not be obligated to indemnify Developer against Developer's negligence or willful misconduct. Section 4.6. Compliance with Laws. In causing the Play- house Project construction work to be --performed by the approved contractor, Developer will use its good faith efforts in accor- dance with reasonable standards for similar construction work in Miami,. Florida, to see that the contractor complies with appli- cable federal, state, and local statutes, laws, ordinances, rules, regulations, and orders, provided that, nothing herein shall limit the right of Developer or contractor to contest the validity or enforceability of any such statute, law, ordinance, rule, regulation, or order with which Developer or contractor may be required to comply. Section 4.7. Certificate of Final Completion. Upon com- pletion of all stages of the Playhouse Project, as evidenced by a certificate of completion made by the Playhouse Project architect (as described in Section 1.1(c)(i) of the Retail Lease), and delivery of the "as -built" plans therefor, DOSP and Playhouse shall furnish Developer with an appropriate instrument certifying the completion of the Playhouse Project and evidencing DOSP's and Playhouse's acceptance of those portions of the Playhouse Project located on their respective properties (the "Certificate of Final Completion"). The Certificate of Final Completion shall be conclusive evidence of the full compliance by Developer of all requirements of Articles III and IV of this Agreement, which Articles, together with Articles VII, IX and X of this Agreement, shall thereafter be deemed terminated and of no further force or effect. The Certificate of Final Completion shall be in such form as will enable it to be recorded among the official Records of Dade County, Florida. If DOSP or Playhouse shall refuse or fail to timely provide such Certificate of Final Completion in accordance -herewith, DOSP and Playhouse shall, within ten (10) days after written request from Developer, provide Developer with a written statement indicating in adequate detail in what respects Developer has failed to complete the Playhouse Project in accordance with the provisions of this Agreement, and what measures and acts, in the opinion of DOSP and Playhouse, are reasonably necessary for Developer to take or perform in :rder to obtain such. Certificate of Final Completion. Any dispute among - 14 - ai.OG85 the parties as to whether the Playhouse Project has been com- pleted as required by this Article IV shall be resolved by Arbi- tration in the manner provided in Article ViII of the Retail Lease; except that all members appointed to the Arbitration Panel to resolve a dispute as to whether the Playhouse Project has been properly completed shall be architects licensed by the State of Florida familiar with projects similar to the Playhouse Project. The date of the completion of the Playhouse Project as evidenced by the Certificate of Final Completion or as determined by Arbitration shall be the "Completion Date". Section 4.8. Alternate Parking. During the period of time when construction shall e in progress with respect to the Private Development and Parking Garage (and prior to removing any of the existing parking from operation) Developer shall facili- tate alternate parking to the parking presently existing on the Garage Parcel and Retail Parcel in accordance with the follow- ing: Developer shall negotiate and obtain a proposal from AllRight Miami, Inc. (or other independent third party parking company) setting forth a proposal for the provision of alternate parking for the benefit of the Playhouse during performances until the Parking Garage has been completed on the Parking Par- cel. Developer shall use its good efforts to attempt to obtain a proposal that will best meet the needs of the Playhouse in this regard. The proposal shall, be forwarded to the Playhouse and DOSP for their approval. In the event that the Playhouse and DOSP do not accept such proposal in writing within thirty (30) days of receipt of same, then the Developer shall have no further responsibilities with respect to the provision of alternate park- ing during such construction and this Section 4.8 shall there- after be terminated and of no further force or effect. In the event that DOSP and the Playhouse accept the proposal submitted by Developer, then DOSP and Playhouse shall enter into a direct agreement with the parking vendor, and be directly responsible for all costs and expenses associated therewith. Section 4.9. Art in Public Places. If and to the extent required by law, the Developer stealuti ize 1/2 of 1 percent of all Developer construction funds ("hardcost" line items only) budgeted for the Private Development for art in the public areas of the Private Development. Date: ARTICLE V MAINTENANCE OF PLAYHOUSE PROJECT Section 5.1. Maintenance. From and after the Completion (a) Playhouse agrees to maintain the Playhouse Property and all improvements from time to time located thereon in a clean and orderly manner in keeping with stan- dards for a.first class theater from time to time; (b)' Developer agrees to maintain the Retail Parcel and the Private Development in a clean and orderly manner and in keeping with the standard of maintenance observed by other first class retail -office projects in the Coconut Grove area of Miami, Florida; and (c) DOSP agrees to maintain the -Garage Parcel and Parking Garage in a clean and orderly manner in keeping with the standards of maintenance observed by other first' class garages in the Coconut Grove area of Miami, Florida. Section 5.2. Security. DOSP shall provide the same security for the Park n� g Garage as is provided to all other DOSP parking garages with appropriate augmentation in the exclusive judgment of DOSP during periods of high pedestrian activity. Section 5.3. Covenants Running with the Land. The pro- visions of this Article V and of Article iI s a l be deemed covenants running with the title to the respective parcels of land controlled by the parties hereto throughout the term of this Agreement. The parties agree to record a short form memorandum of this Agreement in the Public Records of Dade County, Florida, which memorandum may specifically refer to the obligations of maintenance as set forth in this Article and the Easements set forth in Article 11. ARTICLE VI TRANSFERS; MORTGAGEES Section 6.1. Transfers. Prior to the Completion Date, no transfers (of a tenants leisehold interest in the respective portions of the Playhouse Property owned by the parties hereto) shall be permitted by any party to this Agreement other than those. which are expressly permitted to Developer, as tenant, under the Retail Lease, and other than Space Leases. Upon any transfer (of a tenant's leasehold interest in the respective por- tions of the Playhouse Property owned by the parties hereto) the transferor shall be fully released from all obligations hereunder and the transferee, by acceptance of the transfer, shall become fully bound thereby. Section 6.2. Mortgagees. DOSP and the Playhouse agree for the benefit of any Institutional Lender which is the holder of any Leasehold Mortgage, that any such holder, during the pendency of this Agreement, shall have all of the same rights with respect to this Agreement as are afforded to Leasehold Mortgagees under Section 3.1(c) of the Lease, including the right to take over any and all of Developer's obligations and rights hereunder and/or cure any default of Developer hereunder. ARTICLE VII INSURANCE AND CASUALTY Section 7.1. Developer's Insurance. during the period !ommencing on the date possession is men to Developer under article I above to begin construction of the Playhouse Project nd throughout the period of such construction work until the ompletion Date, Developer shall maintain or cause to be, main- ained: (a) Property Insurance. Builder's Risk Insurance on the Playhouse Project against all risks of physical loss or damage to the Playhouse Project. The insurance shall be written on a full replacement cost basis in form satisfactory to Developer's Institutional Lender providing construction funding. (b) Automobile Liability Insurance. Automobile liability insurance and equivalent po cy forms covering all owned, non -owned, and hired vehicles used in connec- tion with any construction work arising out of this Agreement. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $1,000000 per occur- rence. - 16 - 10685 (c) Liability Insurance. Comprehensive general liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Playhouse Project or any elevator, escalator, or hoist used for the con- struction of the Playhouse Project. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $5,000,Q00 per occurrence. (d) Worker's Comgens�ation. Worker's Compensation and memp oyec'-s Liability� Insurance in compliance with Florida Statutes S440. (e) Copies. On or before the date possession is granted to Developer, Developer shall furnish Certificates of Insurance to DOSP and Playhouse which shall clearly indicate that Developer has obtained insurance in the type, amount and classifications required by this Lease. Certificates for renewal policies replacing any policies expiring during the term of this Agree- ment shall be delivered at least thirty (30) days prior to the date of expiration of any policy together with proof that all premiums have been paid. Section 7.2. Responsible Companies - Blanket Insurance Permitted. All insurance provided or in this Article VII shal be effected under valid and enforceable policies issued by in- surers of recognized responsibility which are licensed to do business in the State of Florida. Anything in this Agreement to the contrary notwithstanding, Developer shall be required to carry insurance only in amounts and having deductibles which are commercially reasonable for similar properties in the geographic area of the Playhouse Project. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength on the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street, New York, NY. The insurance required by this Article VII may be part of another policy or policies of the Developer or may be provided by the contractor performing the construction work so long as .the amount of insurance available to pay losses is at least the minimum required by this Article VII, and said amount cannot be reduced in.any manner by losses occurring at other properties or locations. Section 7.3. Named Insureds; Notice to DOSP and the Play- house of Cancellation. All pollcies of insurance require y this Article VII shall indicate as named or additional insureds Developer, DOSP, (and the Department of State, and the Board of Trustees if required by their respective underlying leases) the Playhouse, and any Leasehold Mortgagee as their respective interests may appear. Notwithstanding any such inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this Article VII. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after written notice to the addi- tional and named insureds. Each policy shall contain an endorse- ment to the effect that no act or omission of Developer shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 7.4. DOSP or Playhouse May Procure Insurance if Developer Fails to Do So. It Developer tails to maintain any - 17 - ""1 .-*IN insurance required by this Article VII, either DOSP or Playhouse, but not both (so that only one policy is obtained by them) may, at its option, procure such insurance, and all amounts paid therefore shall be payable together with interest thereon at the Default Rate. DOSP or Playhouse shall notify Developer in writing of the dates, purposes, and amounts of any such payments, and Developer shall reimburse DOSP or Playhouse within ten (10) days following receipt of such notification. Section 7.5. Insurance Does Not Waive Develo er's Obliga- tions. No acceptance or approval of any insurance by DOSP or P ayhouse shall relieve or release Developer from any liability, duty or obligation under this Agreement. Section 7.6. Loss or Damage Not To Terminate Rental or This Lease. Any loss or damage by fire or other casualty to the P ayhouse Project shall not operate to terminate this Agreement; provided, however, in the event of any uninsurable loss or damage to the Playhouse Project to the extent of $100,000.00 or more (and which uninsured loss is not promptly paid by DOSP or the Playhouse), Developer at its option, may cancel and terminate this Agreement and the Retail Lease. If Developer terminates this Agreement pursuant to this Section, Developer shall, at its sole cost and expense, cause the Retail Parcel, Playhouse Parcel and/or Garage Parcel to be cleared of any debris caused by such loss or damage. Developer's obligations under the *immediately preceding sentence shall survive termination of this Agreement. Section 7.7. Proof of Loss. Whenever any part of the Playhouse Project shall have een amaged or destroyed by fire or other casualty, Developer shall promptly make proof of loss in accordance with the terms of the applicable insurance policies and shall promptly prosecute all valid claims which may have arisen against insurers -or others based upon any such damage or destruction. Developer shall promptly give DOSP and Playhouse written notice of any damage or destruction to the Playhouse Project. Section 7.8. Prooerty Insurance Proceeds. (a) Authorized Payment. Except as otherwise provided in subsection 7.8 (c), all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: (i) Directly to Developer, if the total recovery is less than $100,000.00; except that, if Developer is then in default under this Agreement, such proceeds shall be paid over to DOSP and Playhouse, who shall apply the proceeds first to the rebuilding, replacing, and repairing of the Playhouse Project, and then to the curing of Developer's default. Any remaining proceeds shall be paid over to Developer. (ii) To the Insurance Trustees if the total re- covery is $100,000.00 or more,, to be dis- bursed to Developer pursuant to subsection 7.8(b). (b) Disposition of Insurance Proceeds for Reconstruc- tion. Su Sect to the requirements oF Developer's Institutional Lender providing construction funding, all insurance proceeds shall be used, to the extent required, for the reconstruction, repair or replace- ment of the Playhouse Project, so that the Playhouse 10685. Project shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the insurance proceeds received by the Insurance Trustee, there shall be disbursed to Developer such amounts as are required for the Reconstruction Work. Developer shall submit invoices or proof of payment to the Insurance Trustee for payment, or reimbursement in accordAnce,with an agreed schedule of values reason- ably approved in advance by DOSP and Playhouse. Any amount remaining in the hands of the insurance Trustee after the completion of the Reconstruction Work shall be paid to Developer. (c) Leasehold Mortgagees May Have Benefit of Insurance Proceeds for Reconstruction. In tFii event Developer,, shall at any t me aut or ze an Institutional Investor Leasehold Mortgagee to enter upon the Retail Parcel, the Garage Parcel or the Playhouse Parcel and under- take on Developer's behalf the reconstruction or repair of any part of the Playhouse Project damaged or destroyed by casualty and to have and receive insur- ance proceeds for such purpose, said insurance pro- ceeds shall be equally available to such Institutional Investor Leasehold Mortgagee in the manner provided in Sections 7.8(a) and (b) above. Section 7.9. Covenant for Commencement and Completion of Reconstruction. Subject to the provisions o this Article VII, Developer covenants and agrees to promptly submit any claim for damage to the insurer and to commence the Reconstruction Work as soon as practicable (but in any event within two (2) months after the insurance proceeds have been received), and to fully complete such Reconstruction Work as expeditiously as reasonably possible. Section 7.10. Playhouse Insurance. Throughout the same period of time that Developer is required to maintain insurances under Section 7.1 above, the Playhouse shall maintain separate broad form casualty coverage with extended peril endorsements covering the full replacement value of the existing improvements on the Main Playhouse Parcel. The Playhouse shall be required to carry insurance only in amounts and having deductibles which are commercially reasonable. In the event of any damage or destruc- tion to such existing improvements, the Playhouse shall be res- ponsible to promptly rebuild and restore such existing improve- ments so that Developer can complete the Adaptive Improvements and Infrastructure Improvements at no additional expense to Developer, failing which Developer shall be released from its obligations to the Playhouse under this Agreement. Section 7.11. Waiver of Subrogation Rights. Anything in this Agreement to the contrary notwithstan ng, DOSP, the Play- house, and Developer each hereby waive any and all rights of recovery, claim, action, or cause of actions against the other, its agents, officers, directors, partners, investors, or employees, for any liability, loss or damage that may occur in, on, about or to the properties that are the subject of this agreement and/or any improvements from time to time existing thereon, or to any portion or portions thereof, or to any personal property brought thereon, by reason of fires, the elements or any other cause(s) which are insured against under the terms of valid and collectible insurance policies carried for the benefit of the party entitled to make such claim, regardless of cause or origin, including negligence of another party hereto, its agents, officers, directors, partners, investors, or employees; provided that such waiver does not limit in any way any party's right to recovery under such insurance policies, and - 19 - provided further that the insurer pays such claims. DOSP, Developer and Playhouse shall each obtain an endorsement to all of their insurance policies relating to or covering the Playhouse Property, or any portions thereof, to effect the provisions of this Section 7.11, provided that such endorsements are available at no additional cost. ARTICLE VIII DEFAULT Section 8.1. Developer's Default. In the event of the failure of Developer to perform any o=the covenants, conditions or agreements which are to be performed by Developer under this Agreement, and the continuance of such failure for a period of sixty (60) consecutive days after written notice in adequate detail from DOSP or Playhouse to Developer (provided, however, if such failure cannot reasonably be cured within sixty (60) days, and Developer, within said sixty (60) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunder and provided further that any Institutional Lender holding a Leasehold Mortgage encumbering the Retail Parcel shall have such rights .of notice and cure with respect to the obliga- tions of Developer granted herein as are made available to such lender under the Retail Lease for any default by Developer as tenant thereunder), then DOSP and the Playhouse shall, to the fullest extent permitted by law, have the right to pursue any and all remedies available at law or in equity, including the right to sue for and collect damages and to specifically enforce their rights, and to enjoin Developer. Section 8.2. DOSP's Default. In the event of the failure of DOSP to perform any of the covenants, conditions or agreements which are to be performed by DOSP under this Agreement, and the continuance of such failure for a period of sixty (60) consecu- tive days after written notice in adequate detail to DOSP [pro- vided however, if such failure cannot reasonably be cured within said sixty (60) day period, and DOSP, within such sixty (60) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunderj, then Developer and Playhouse, to the fullest extent permitted by law, shall have the right to pur- sue anv or all remedies available at law or in equity, including the right to sue for and collect damages and to specifically enforce Developer's and Playhouse's rights, and to enjoin DOSP. Section 8.3. Pla house's Default. In the event of the failure of Playhouse to perform any of the covenants, conditions or agreements which are to be performed by Playhouse under this Agreement, and the continuance of such failure for a period of sixty (60) consecutive days after written notice in adequate detail to Playhouse; provided, however, if such failure cannot reasonably be cured within said sixty (60) day period, and Playhouse, within such sixty (60) day period, shall have com- menced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute a default hereunder, then DOSP and Developer, to the fullest extent per- mitted by law, shall have the right to pursue any or all remedies available at law or in equity, including the right to sue for and collect damages and to specifically enforce Developer's and DOSP's rights, and to enjoin Playhouse. Section 8.4. Unavoidable Delay. The time for any party's performance of the covenants, provisions and agreements of this Agreement shall be extended for the period of any Unavoidable - 20 - IDGW GZ Delay; provided, however, that any party seeking the benefit of Unavoidable Delay shall, .within fifteen (15) days after such party shall have become aware of such Unavoidable Delay, give written notice to the other parties of the Unavoidable Delay and its reasonably estimated duration. Section B.S. Obligations, Rights and Remedies Cumu- lative. The rights an reme ies or the parties, whether provided at 'law, in equity or under this Agreement, shall be cumulative. The exercise by any party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or for any other default or breach by the other party. No waiver made by either party with respect to performance, manner or time of any obligation of any other party or any condition to its own obliga- tion under this Agreement shall be considered a waiver of any rights of said party with respect to the particular obligations of any other party or condition to its own obligation, or a waiver in any respect in regard to any other rights of said party. ARTICLE IX MECHANICS' LIENS; NO INTERFERENCE The provisions of this Article IX shall only apply during the period of construction of the Playhouse Project and shall terminate on the Completion Date. Section 9.1. Developer to Discharge Mechanics' Liens. During the period of construction of the Playhouse Project (i.e., commencing on the Satisfaction Date and ending on the Completion Date), Developer shall make or cause to be made prompt payment of all money due and legally owing to all persons and entities doing any work or providing any materials or supplies for the Playhouse Project. Developer will not permit to be created or to remain undischarged any lien, encumbrance or charge arising out of work done or materials or supplies furnished by any contractor, sub- contractor, mechanic, laborer or materialman which might become a lien, encumbrance or charge upon the Retail Parcel, Garage Par- cel, or the Playhouse Parcel or any income therefrom. All work which Developer is permitted or required to do shall be deemed to be for the immediate use and benefit of Developer, and no mechanics' or other lien shall be allowed against the estate of any other party in the Retail Parcel, Garage Parcel, or Playhouse Parcel as a result thereof. If any such lien or encumbrance shall at any time be filed against the Retail Parcel, Garage Parcel or Playhouse Parcel as a result of Developer's construc- tion of the Playhouse Project, then Developer shall file a bond satisfactory to cause same to be removed as a cloud on title (to the extent any bond is required over and above the payment bonds to be provided by Developer pursuant to Article IV above) within thirty (30) days of the filing of the lien or claim and shall promptly take and diligently prosecute appropriate action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. Upon Developer's failure so to do, DOSP or Playhouse in addition to any other right or remedy either may have, may take such action as may be reasonably necessary to protect their respective interests and Developer shall pay DOSP or Playhouse any amount reasonably paid by DOSP or Playhouse in connection with such action, and all reasonable legal fees, costs and expenses incurred by DOSP or Playhouse in connection there with (including reasonable counsel fees, court costs, costs of appeal and other necessary disbursements). Any such amounts not - disbursed by Developer within thirty (30) days after the date - 21 - 10685. �3 Developer receives written notice from DOSP or Playhouse of the amount thereof and demand for payment of the same shall bear interest at the Default Rate from the date of the receipt by Developer of the aforesaid written notice. Section 9.2. Obligations of Pla house. The Playhouse and DOSP shall cooperate with Developer during the course of con- struction of the Playhouse Project so as not to materially inter- fere with or hinder the progress of construction. in addition, the Playhouse and DOSP shall not order any work to be performed on the Playhouse Property which would in any way materially interfere with or hinder the progress of construction by Devel- oper of the Playhouse Project. ARTICLE X CONDEMNATION The provisions of this Article X shall only apply during the period of construction of the Playhouse Project and shall ter- minate on the Completion Date. Section 10.1. Entire ProRerty Taken by Condemnation. In the event that all o the property upon which *the -Playhouse Project is to be constructed or a "material" portion thereof is taken for any public use or purpose by the exercise of the power of eminent domain (or deed given in contemplation thereof), then all of the obligations of the Developer under this Agreement shall fully terminate as of the taking and all awards payable on account thereof shall be paid as follows: (a) First, to the Developer, DOSP, and the Playhouse pari passu in such amounts as are necessary: (i) to fully reimburse the Developer for all construction financing proceeds theretofore disbursed (both by any institutional lender and/or by or on behalf of Developer) and all costs and attorneys' fees incurred in connection with the Playhouse Project and condem- nation proceeding, and (ii) to fully reimburse DOSP and the Playhouse for all portions of the construction funds advanced by DOSP and the Playhouse, respective- ly, pursuant to Section 4.2 hereof which have been theretofore disbursed in the construction of the Playhouse Project, and costs and attorneys' fees in connection with the Playhouse Project and the condem- nation proceeding; and (b) Second, the balance shall be disbursed to the parties in accordance with their respective losses as deter- mined by the court or jury in its condemnation award. Neither the Playhouse nor DOSP shall in any way cooperate with, seek or aid, directly or indirectly, any condemnation with respect to the Playhouse Project or the properties affected by this Agreement. Anything to the contrary notwithstanding, the provisions of the last sentence shall survive the Completion Date and be binding upon DOSP and the Playhouse throughout the full term of this Agreement. The term "material" as used in this Article X shall mean a condemnation of such portion of the Retail Parcel as, in the good faith opinion of Developer, renders it economically infeasible for Developer to continue with the Playhouse Project and/or to restore the Private Development. Section 10.2. Partial Taking by Condemnation. In the event of a nonmater ial-73-n-demnat ion prior to the Completion Date, then all of the obligations of the parties shall continue and - 22 - rasa �4 Developer shall take such action as is reasonably necessary to restore the Playhouse Project to as close a condition as is reasonably feasible to the originally approved Playhouse Project. To the extent any portion of the Playhouse Project is not feasibly restorable, then such portion shall be deemed omitted from the Playhouse Project. All condemnation awards for a nonmaterial condemnation shall be paid as follows: (a) First, to the expense of the parties reasonable attor- neys' fees and costs of the parties in connection with the condemnation proceeding; (b) Second, to the cost of restoration as required by this Section 10.2; and (c) Third, the balance shall be disbursed to the parties in accordance with their respective losses as determined by the court or jury in its condemnation award. ARTICLE XI MISCELLANEOUS PROVISIONS Section 11.1. Certain Costs and Expenses. Subject to satisfaction of all of the con tions precedent set forth in Section 1.4 above, upon the Satisfaction Date, Developer shall reimburse the Playhouse and DOSP with respect to (i) legal fees in connection with (a) the negotiation and consummation of this transaction, and (b) the negotiation and consummation of the Retail Lease, and (ii) other on -going reasonable costs in connection with the Playhouse Project; provided, that, in any event, the maximum aggregate amount of reimbursable costs and expenses by Developer shall not exceed $240,000.00. Section 11.2. No Partnership or Joint Venture. Nothing contained in this Agreement is intended or sha a construed in any manner or under any circumstances whatsoever as creating or establishing a partnership or a joint venture between or among Developer, DOSP, and/or the Playhouse or as constituting any party as the agent or representative of any other party. Section 11.3. Florida and Local Laws Prevail. This Agree- ment shall be governe2 Ey the laws of the State of Florida. If any term, covenant, or condition of this Agreement or the appli- cation thereof to any person or circumstances shall, to any extent, be determined by appropriate judicial authority to be illegal, invalid, or unenforceable the remaining terms, covenants and conditions of this Agreement, or application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 11.4. Conflicts of Interest. No member, official representative, or employee ST DOSP or the Playhouse shall have any personal interest, direct or indirect in this Agreement or the Retail Lease, nor shall any such member, official, represent- ative or employee participate in any decision pertaining to this Agreement or the Retail Lease which affects his or her personal interest or the interest of any corporation, partnership or asso- ciation in which he or she is, directly or indirectly, interested. - 23 - 1.OGes,C 5 Section 11.5. Notice. Any notice or communication under this Agreement shall- bii deemed sufficiently given if hand delivered or dispatched by [United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity at the address specified below or at such other address of which the other party shall be duly notified: (a) In the case of a notice or communication to Developer, to: Coconut Grove Investments, Inc. c/o Mr. Jack Chambers and Mr. Seth Werner Werner Capital Corporation 2665 South Bayshore Drive Penthouse II Coconut Grove, Florida 33133 with a copy to: Greenberg, Traurig. Hoffman, Lipoff, Rosen & Quentel 1221 Brickell Avenue Miami, Florida 33131 Attn: Matthew B. Gorson, Esq.; (b) In the case of a notice or communication to DOSP, to: Department of Off -Street Parking of The City of Miami 190 Northeast Third Street Miami, Florida 33132 Attn: Executive Director with a copy to: City of Miami Attorney's Office One S.E. Third Avenue, Suite 1100 Miami, Florida 33131 (c) In the case of a notice or communication to Playhouse, to: Coconut Grove Playhouse, Inc. 3500 Main Highway Coconut Grove, Florida 33133 Attn: Chairman and Artistic Director with a copy to: Fine Jacobson Schwartz Nash Block & England One CenTrust Financial Center 100 Southeast 2nd Street Miami, Florida 33131 Attn: Julie A.S. Williamson, Esq.; All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given under this Agreement must be in writing and must be given as provided in this Section 11.5. All notices and communications given by any- party hereunder shall be given to each of the other two parties. _24_ 10685. Section 11.6. Titles of Articles and Sections. The titles of the several parts, Articles and Sections of t s Agreement are inserted for convenience of reference only and shall be dis- regarded in construing or interpreting any of its provisions. Section 11.7. Counter arts. This Agreement is executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Section 11.8. Successors and Assi ns. All of the covenants, conditions—a—n-d obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Section 11.9. Approvals and Consents. Wherever in this Agreement the approval or consent oany party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld or delayed. Section 11.10. Interpretation. Reference to any article, section, paragraph, exhibit, or subpart thereof, unless otherwise provided shall refer to this Agreement. Use of the term "including" shall mean "including, without limitation". The parties to this Agreement have all participated equally in the negotiation and preparation of this document; and the same shall not be more strictly construed against any one of them. Section 11.11. Attorneys' Fees. If it shall become necessary for any party to employ an attorney to enforce or defend any of its rights or remedies hereunder because of the default or breach of any covenant, condition, or agreement hereunder by any other party, then the prevailing party shall be entitled to recover such reasonable attorneys' fees and court costs, including fees and costs incurred at trial level and on appeals, as the prevailing party may incur in connection therewith. Section 11.12. Entire Agreement. This Agreement, the documents delivered pursuant hereto as referenced in the recitals, the Retail Lease, and all documents referenced in this Agreement and/or the Retail Lease, together contain the entire agreement among the parties with respect to the subject matter hereof. No modification or amendment of this Agreement shall be binding upon the parties unless such modification or amendment is in writing and signed by the party to be bound thereby. Section 11.13. Incorporation of Provisions of Retail Lease by Reference. In each instance where provisions of the Retail Lease are incorporated into or otherwise referred to in this Agreement by references the word "Tenant" shall be deleted and replaced with "Developer"; the word "Landlord" shall be deleted and replaced with the phrase "DOSP and Playhouse"; and the word "Lease" shall be deleted and replaced with "Agreement." Section 11.14. Consent of the Playhouse. As between the Playhouse and DOSP, DOSP agrees to furnish a copy of any request for consent or approval given by the Developer to DOSP pursuant to the Lease and to consult with the Playhouse prior to respond- ing to such Developer's request. The foregoing shall not be con- strued, however, to grant any additional right to the Playhouse or burden upon the Developer with respect to the Lease, and the Developer shall look solely to DOSP as the Landlord under the Lease for any necessary consents or approvals without regard`to (or consultation with) the Playhouse. The Playhouse's rights of consultation shall lie solely with DOSP,and shall be in such form and manner as DOSP and the Playhouse may separately agree. - 25 - l Section 11.15. Exculpation. It is the intent and agreement of the parties hereto t at on y the parties as entities shall be responsible in any way for their respective obligations here- under. In that regard, no officer, director, partner, investor, official, representative, employee, agent, or attorney of any of the parties to this Agreement shall be personally liable for the performance of any obligation hereunder or for any other claim made hereunder or in any way in connection with this Agreement, the Retail Lease, or any other matters contemplated herein or therein. it is the express understanding and agreement of the parties that each of the parties shall be entitled to all protec- tions afforded to an incorporated or limited partnership entity and that none of the parties shall ever attempt, nor be per- mitted, to seek to "pierce the corporate veil" (or the protec- tions afforded to limited partners of a limited partnership) of the Developer (or any partner thereof), the Playhouse or DOSP. Section 11.16. Beneficial interest of the Playhouse in the Retail Lease. It is the intention othe parties hereto that the Play ouusse`Ftave a beneficial interest in Tenant's performance under certain provisions of the Retail Lease. Without limiting the rights of the Playhouse under this Agreement, the Playhouse shall have the right to enforce for its benefit, in the same manner and to the same extent as afforded DOSP under Article IV of the Retail Lease, only the provisions of Sections 1.3, 1.6, 1.7, 1.9, 3.1(b), 6.1, 9.2, 9.3 and 10.6 of the Retail Lease but subject to such rights of notice and cure as are afforded to the Developer (as tenant thereunder) and any. and all leasehold mortgagees under the Retail Lease. The Retail Lease contains certain provisions whereby DOSP, as the landlord thereunder, is permitted to make payment of.funds or to take actions where such payments or actions are not made or taken by the Developer, as tenant thereunder. In such event, and to the extent that DOSP has not promptly made such payments or taken such actions, after prior notice to DOSP, the Playhouse may make such payments or take such actions, and reimbursement therefore shall be due to the Playhouse, all on the same terms and conditions as apply to the landlord and tenant under the Retail Lease. In the event the Developer, as tenant under the Retail Lease, is unclear as to which party to make any reimbursement to, Developer may either interplead such funds to a court of competent jurisdiction or make a check payable to both DOSP and the Playhouse and deliver such check to either party. The Developer shall be entitled to obtain an estoppel letter from the Playhouse with respect to any rights granted to the Playhouse hereby and to seek all rights and remedies against the Playhouse as a result of any improper actions by the Playhouse as if the Playhouse were the landlord under the Retail Lease including without limitation reimbursement of attorneys fees and court costs. It is further agreed for the purpose of Section 10.7 of the Retail Lease that the Playhouse shall be deemed a party having an interest in the Retail Lease to the extent expressly provided in this Section 11.16. Section 11.17. Extension of Terms of Senior Leases and the Playhouse Lease. Provided that the Retail Lease has not een properly terminated as a result of a default which has not been cured within the time periods provided in the Retail Lease, DOSP and the Playhouse shall duly and timely exercise all renewal and/or extension options granted under the Senior Leases and the Playhouse Lease which are necessary to afford the Developer the �� i i TABLE Or EXHIBITS o A - Department of State premises B - Main Playhouse Parcel C - Original DOSP Parcel D - DOSP Additional Parcel E-1 - Adjacent Playhouse Parcel E-2 - First Floor Retail Area F - Retail Parcel G - Garage Parcel H - Infrastructure Parcel Y - Permitted Title Matters 1 9 CDsJ benefit of the full length of the Original Term and all Renewal Terms of the Retail Lease. EXECUTED as of the day and year first above written. V COCONUT INVESTMENTS, LTD., A FLORIDA LIMITED PARTNERSHIP Bys COCONUT APPORATION, A FLO CORPQRAWN, By= rnepp—wesident (Corporate Seal) THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI, AN AGENCY AND INSTRUMENTALITY OF THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA By: Jo ve , Ex utiv Director' COCONUT GROVE PLAYHOUSE, INC., a FLORIDA NOT -FOR -PROFIT COR- PORATION Y' �,Pr�esi ent - 27 - TRZFARTY AGREEMICNT WMZDXT Ak DRIPART!!EN"1" GF STATIC 1 ` ht ' W 4` 7! W LLIaM`, ' Av .7 Ll f a. • ICY � `i Yi s'• � ••' a a i ` �• •� •�.�.o. • TRIPARTY AGRBIiT WMISIT 8 , Xhim PLhysw8E PARCISL ••a •, :.,�' a �, •' i •0 i • � • �• E �► • No , lo N�••+.O No ••� ••• E. •• ..• 1• o..: �,. �;• ;,•—,'-ram ; w::'t=—• ��•' _ • ` '• No • f •• �• 9 ' r .. •• .•• • ' ' � ; • .. �. ,' i/• , , • � 'R'S • fit; • � .. •�.••� .• • s * . o�• - •• N '•' a • •'•• •• • P. ` y • • , �• • • • •�: • / • • • ,• p�. R . do /�„a• •�...; � dot• :.r • • �. q • �►- '. • • IND •• `' • ` 0. !s '• • of �e of • —oftroot Woo oft* .000 nrv.-� 0 ' ' • ti • ' • ° ' • •'• ' lb u TRIPARTY AGREEKENT EXHIBIT d, ORIGINAL DOSP PARCEL EXHIBIT JD / DOSP ADDITIONAL PARCEL • s Sim '� �• VA .t • . . • •. .• . lb : • ••ll *If •• I �� •a ,, so so •'' • ., . ' i • t IPAR'!"r AGRtRf�' e ZISIT 2-1 "M AWA SW PLAYNOCU lARCRL ZINIT 2-2 M FIRM "Am MAIL AMA 'Pam ADMUCa V PI AYROOM IhRM is that property on Which to located a building Which is partly tiro storiijand partly one story. M VIRSt rL M RWWL Atrial to a portion of building Which Is surrounded by the multi -story Coconat Grove Playhouse. It is the area formerly occupied by a part of the •Coco loon• Restaurant,' and eitesda to the, ... o beck Wall of the restaurant. • r ''fir• Or .1 lb +; 48 41, ' a„g • $moo � ,'' v . a , 4` = d'i `', ....�.._.,.�.: - art .... ...._ . �.- •' .. .. E• ;...• r e M — ' • fi ti' partly opaa area with scmo �1 eta 42 a• A -like atrnetores • . 2 etarr s hurl.• r j .+• • . •• A. 1 • • '00y • ..M IND 41 - :ft i •. • •• • r 0 Ming t Pl sti • r ri m •al• 11ti :are �• ' back wall of . ,•', ': restaurant. s' • ' p; entr ce ar Wan i •, Z► first story • o e1�y 1• ''.• . • ••••, N• •• ' ' • • • i • At °1. .• 1. o•••t. ... :.OW IOGSS 11 TRIPARTY AGREEMENT • EXBIBIT GARAGE PARCEL �. EMIBIT F RETAIL PARCEL • ti • W wb L.;. _..L • e•.s i ••.• r• I.t ..w• . ter`••• �•�• .• . 1 • •. a _ •, . 10 �. _ • --• • • 4 44�vwp �• �� 1. .. =wy. .... .. , . •.• • TRIPAM AGR T RZAIRIT N INFRA8220CTi Z PARCBA • .'• „ ON q T Ise •• s• • • '• N • • ' �_*• •4 •,• r O 40 Ott L e Ate•. �• �,� Lc .-"�.�' ' e , OZ. •• .. PIP • • • ,e • = i iPb • Ate;! � �• • 006 ir • N • i c�. .bP ... i •••�• • • /� ••I • •4 • • f �.�* o..° . • • •• • • • . A •. • •, • 0 •• • �• • �j� `Zaocv W••�•• . • 10685 l� t EXHIBIT E TABLE OF CONTENTS Page Article I - Gen : i1 of Lease of Premises ............... 1 Sectit.:n 1 I. Lease of Premises to Tenant.......... 1 Sec t : ) n 1. 1 Term.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Se c t .,I n 1.3 Us e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 1.4 Alterations .......................... 5 Section 1.5 Title of Premises .................... 5 Section 1.6 Aental ............................... 5 Section 1.7 Tenant's -Records; Audits ............. 6 Sect;.in 1.9 Covenants for Payment of Taxes `)y Tenant .......................... 6 Sect4,j.% L.j Payment of Rental; Late Rental....... 6 Article II - Transfers and Subletting ........................ 7 Section 2.1 Transfers ............................ 7 Section 2.2 Space Leases ......................... 9 Section 2.3 Minority Participation in Ownership.. 10 Article III - Mortgage Financing; Rights of Mortgagee........ Section 3.1 Leasehold Mortgages .................. Section 3.2 No Waiver of Tenant's Obligations or Landlord's Rights ............... Article IV - Remedies ........................................ Section 4.1 Tenant's Default ..................... Section 4.2 Landlord's Default ................... Section 4.3 Unavoidable Delay .................... Section 4.4 Obligations, Rights and Remedies Cumulative ......................... Article V - Mechanics' Liens; Indemnification ................ Section 5.1 Tenant to Discharge Mechanics' Liens Section 5.2 Notice of Non -Responsibility......... Article VI - Insurance ....................................... • Section 6.1 Insurance Coverage ................... Section 6.2 Responsible Companies - .Blankpt Insurance Permitted........ Section 6.3 Named Insureds.; Notice to Landlord and the Playhouse of Cancellation.. Section 6.4 Landlord May Procure Insurance if Tenant Fails to Do So........... Section 6.5 Insurance Does Not Waive Tenant's Obligations ........................ Section 6.6 Loss or Damage Not to Terminate Rental or This Lease..... Section 6.7 Proof of Loss ........................ Section 6.8 Property Insurance Proceeds.......... Section 6.9 Covenant for Commencement and.Completion of Reconstruction... Section 6.10 Waiver of Subrogation Rights......... - i - 10 10 16 17 17 18 18 19 19 19 19 20 20 21 21 21 22 22 22 22 23 23 1OG85 Article VII - Condemnation ................................... Section 7.1 Entire Premises Taken byrondamnation .................... Section 7.2 Part!-vl. T3king of Premises by.:ondemnatibn.................... Section 7.3 Taking for Temporary Use of Leasehold Estate ................... 23 23 24 25 Article VIII - Arbitration ................................... 25 Section 8.1 Applicability ........................ 25 Section 8.2 Arbitration Panel, ........ 6669*986006 25 Section 8.3 Procedure for Arbitration............ 26 Section 8.4 Resolution of Dispute ................ 26 Section.8.5 Cost of Arbitration .................. 27 Article IX - Rights of Occupancy and Access; Maintenance, ownership of Improvements..................... 27 Section 9.1 Quiet Enjoyment ...................... 27 Section 9.2 Waste ................................ 27 Section 9.3 Maintenance and Cooperation of Private Development............. 27 Section 9.4 Ownership of Private Development During Term ........................ 27 Section 9.5 Surrender of Premises ................. 27 Article X - Miscellaneous Provisions ......................... 28 Section 10.1 No Partnership or Joint Venture..... 28 Section 10.2 Recording Documentary Stamps........ 28 Section 10.3 Florida and Local Laws Prevail; Severability ...................... 28 Section 10.4 Conflicts of Interest ............... 28 Section 10.5 Notice .............................. 28 Section 10.6 Estoppel Certificates ............... 29 Section 10.7 Provisions Not Merged with Deed..... 30 Section 10.8 Titles of Articles and Sections..... 30 Section 10.9 Counterparts ........................ 30 Section 10.10 Non -disturbance and Attornment...... 30 Section 10.11 Non -Discrimination and Equal opportunity ................. 31 Section 10.12 Successors and Assigns .............. 31 Section 10.13 Lease Subordinate ................... 31 Section 10.14 Approvals and Consents .............. 31 Section 10.15 Exhibits ............................ 31 Section 10.16 Interpretation ...................... 31 Section 10.17 Legal,Fees.......................... 31 Section 10.18. Exculpation,,,,,,,,,,,,,,,,,,,,,,,, 31 Section 10.19 Entire Agreement .................... 31 EXHIBITS Exhibit A - Legal Description of the Premises Exhibit B - Legal Description of Garage Parcel Exhibit C - Legal Description of Playhouse Property Exhibit D - Defined Terms Exhibit E - Landlord Permitted Title Exceptions Exhibit F - Minority Participation Program *10 685 79 SU13LZASE THIS SUBLEASE ("Lease") is...miade this day of , 1989, by and between THE DEPARTMENT OF OFF-STR ET PARKING OF THE CITY OF MIAMI, an agency and instrumentality of the City of Miami, a municipal corporation of. the State of Florida ("Land- lord") and COCONUT INVESTMENTS, LTD., a Florida limited partner- ship ("Tenant"). W 8 2 R 2 A S: A. Landlord is the present holder of the tenant's lease- hold under leases .in ,certain' parcels of real property located in the City of Miami.' "County of Dadld, State of Florida, and is 'the fee title holder of certain other parcels of real property also in Miami, Florida, which are legally described in Exhibit "A" attached hereto, and the improvements from time to time located thereon (collectively the "Premises"); B. Concurrently with the execution of this Lease, Landlord, Tenant and Coconut Grove. Playhouse, Inc., a.Florida not -for -profit corporation ("Playhouse") have entered into an agreement (the "Tri-Party Agreement") pursuant to which Tenant will be performing, subject to the terms thereof, certain con- struction and renovation work on the Premises, on a certain par- cel of real property (the "Garage Parcel") described in Exhibit "B" attached hereto which is adjacent to the Premises on the northwest, and on a certain parcel of real property (the "Playhouse Property") described in Exhibit "C" attached hereto which is adjacent to the*Premises on the southwest (said con- struction and renovation work being referred to hereinafter collectively as the "Playhouse Project"); and C. Tenant desires to lease the Premises from Landlord, and Landlord desires to lease the Premises to Tenant, on the terms and covenants and subject to the conditions set forth in this Lease. In consideration of the payments of rent and other charges provided for in this Lease, the covenants and conditions herein- after set forth, and other good and valuable consideration; the receipt and sufficiency of which are hereby acknowledged, Land- lord and Tenant hereby covenant and agree as follows; ARTICLE I GENERAL TERMS OF LEASE OF PREMISES Section 1.1. Lease of Premises to Tenant. (a) Granting Clause. Landlord hereby demises and leases to Tenant,, and enant hereby leases from Landlord, the Premises, upon the terms, covenants and conditions set forth in this Lease. (b) Preamble and Definitions. The foregoing preamble is incorporate73 into these covenants as if fully set forth herein. All initial capitalized terms used in this Lease shall have the meanings given to them here- in or as set forth in Exhibit "D" attache¢'hereto. (c) Conditions Precedent. The commencement of the Term of this Lease shal subject to and conditioned upon 10685. the satisfaction of the following conditions prece- dent: (i) Tenant's obtaining appropriate financing for the Playhouse Protect nd completion of con- struction of cite 11?e.'.vate Development" in accordance with the terms of the Tri-Party Agreement as evidenced by Tenant's archi- tect's certification of same, provided that to the extent DOSP is not satisfied with Tenant's architect, then DOSP may select an independent architect licensed in Florida, reasonably qualified to inspect properties of this nature and acceptable to Tenant's construction lender to certify in lieu of Tenant's architect as to the completion of the Private Development. DOSP shall be res- ponsible "oL . pay&tent ::.: all fees to any such independent architect; and (ii) the issuance of a final certificate of occu- pancy for the said "Private Development" by the City of Miami Department of Building & Zoning; and (iii) the timely satisfaction of the conditions precedent to the obligations of the parties under the Tri-Party Agreement set forth in Section 1.4 thereof. The parties shall cooperate with each other and use good faith efforts to promptly satisfy the aforesaid conditions precedent. In the event the foregoing conditions precedent are timely satisfied, then: (i) Landlord and Tenant shall execute a certificate in recordable form acknowledging the satisfaction of same, (ii) the Term of this Lease shall immediately commence, and (iii) the parties shall be governed by the terms, covenants and agreements hereinafter set forth. The date of the certificate referred to in subsection (i) immediately above shall be the "Commencement Date". Section 1.2. Term. (a) Original Term. The "Original Term" of this Lease shall be forty-eight (48) years, commencing on the Commencement Date and terminating on the forty-eighth (48th) anniversary thereof. (b) Renewal Term. Tenant is hereby granted the option to renew this Lease, upon the- same terms and conditions in effect during the Original Term except as otherwise expressly provided, for two (2) additional terms (each called a "Renewal Term"). The first such Renewal Term shall extend for fifteen (15) years, and the second such Renewal Term shall extend for ten (10) years, commencing immediately upon the expiration of the Original Term or the first Renewal Term, as the case may be, and terminating on the fifteenth (15th). anni- versary or the tenth (loth) anniversary of the com- mencement of the subject Renewal Term, as the case may be. The options to renew shall be exercised by Tenant giving Landlord express written notice of renewal not less than six (6) months before the date on which such Renewal Term is to commence. At Landlord's opti.on, such notice of renewal shall not be effective, i� at the expiration of the Original Term or the first - 2 - al O Renewal Term, as the case may be, an Event of Tenant's Default (as hereinafter defined) shall have occurred and be continuing. Within thirty (30) days following the request of either party, the other party shall execute a written memoranda in recordable form setting forth the beginning and termination dates of the Re- newal Term, determined in accordance with this Lease. (c) Early Occu anc . To the extent the Private Develop- ment is Usable by Tenant prior to the Rental Commence- ment Date, then Tenant, at Tenant's option, may use and occupy same. In such event all of the terms and provisions of this Lease shall be applicable to such use and occupancy except that the rent due shall only be the rent payable pursuant to Subsection 1.6(b) below. Section 1.3. Use. The restrictive covenants contained in paragraphs (a) througe-(d) of this Section 1.3 are intended and designed to bind the Landlord and Tenant and their respective successors and assigns and be binding upon and run with the Premises throughout the Term (and including the term of any new lease entered into pursuant to Article III below). (a) Use -Prohibitions of the Premises.. The -Premises shall not Se used for any of the following: (i) amusement centers (as defined in 5.33.1 of the Code of Dade County or its successor provision); (ii) coinbox entertainment (pinball, video games, moving pictures operated by coins); (iii) casino gambling or games of chance or reward (provided, however, that the sale of State of Florida lottery tickets shall not be prohibited); (iv) any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including "adult entertainment establishments" and "adult" bookstores) or extra -hazardous, or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certificates of occupancy (or other similar approvals of applicable governmental autho- rities); (v) movie theatre; (vi) medical facilities and offices (provided however, this use prohibition shall not prohibit use of the second floor of the Private Development as general offices other than medical offices); (vii) check cashing facilities other than those provided in a bank or savings and loan association office or facility or by an automatic teller machine; (viii) pawn shops; (ix) the sale of firearms; - 3 - 10685 t (x) fortune telling; (xi) printing or duplicating other than as an incidence to the operation of some ether business; (xii) the sale of religious artifacts and books; (xiii) places of worship; (xiv) political offices; (xv) military recruiting; (xvi) consular, legation or any other offices of foreign governments; '(xvii) tire sales; (xviii) the sale of animals or birds of any kind and/or products of a nature typically sold in pet shops; (xix) offices for the practice of veterinary medicine; (xx) the sale of major appliances as a primary business; (xxi) housing or sleeping quarters; (xxii) grocery stores (other than specialty gourmet shops); (xxiii) second hand stores (other than stores selling antiques and quality collectibles); (xxiv) any theatre or performing arts activity in competition with the Playhouse; or (xxv) dinner theatre. (b) No Discrimination. No covenant, agreement, lease, conveyance or other instrument shall be affected or executed by Tenant, or any of its successors or assigns, whereby any portion of the Premises is res- tricted, upon the basis of race, color, religion, sex or national origin in the sale, lease, use or occupan- cy thereof. Tenant will comply with all applicable federal, state and local laws in effect from time to time, prohibiting discrimination or segregation by reason of race, color, religion, sex, or national origin in the sale, lease or occupancy of the Premises. (c) Permitted Uses for Premises. The only uses permitted on the Premises are retail, cultural and office uses not prohibited pursuant to Sections 1.3(a) or (b) above. For the purpose of this Lease, the term "retail" shall mean sale of any and all commodities or services to the consumer, including restaurants, facilities for the sale of food or alcoholic (includ- ing beer and wine) and nonalcoholic beverages, mer— chandise and services customarily found in urban retail centers similar to the Private Development. - 4 - 10G85 `10 (d) 0 erations. Tenant covenants and agrees to operate the Private Development in a manner consistent with prudent business practices and the standards of opera- tion set forth below in order to achieve a maximum level of profitability. Tenant agrees that at all times during the Term, Tenant will use its diligent efforts to operate the Private Development as a retail area and to maintain a level of quality of character and operation similar to other retail centers of comparable age and quality in the downtown Coconut Grove vicinity. From time to time, Tenant will establish such reasonable rules and regulations governing the use and operation of the Private Devel- opment as Tenant shall deem necessary or desirable in order to assure the level of quality and character of operation required herein, and Tenant will use reason- able efforts to enforce said rules and regulations. Section 1.4. Alterations. After the Commencement Date, Tenant from time to time may make such alterations or renovations to the Private Development as it shall deem desirable, provided, .however, that no renovation or alteration which materially affects the structural components or exterior appearance of the Private Development or substantially affects the overall charac- ter and appearance of any public-circulation.area shall be made until such time as Landlord shall have approved definitive con- struction plans and specifications therefor, which approval shall not be unreasonably withheld, delayed or charged for. Tenant must secure and pay for any and all permits and approvals required to perform any such alterations or renovations. Section 1.5. Title of Premises. Landlord represents, covenants and warrants that Landlord is the owner of the tenant's leasehold estate to the Premises (except for the DOSP Additional portion which Landlord represents, covenants and warrants that Landlord owns in fee simple) free and clear from all reserva- tions, covenants, easements, restrictions, liens, or clouds on title except for those listed in Exhibit."E". Section 1.6. Rental. (a) Rental Payable After Rental Commencement Date. From and after the Rental Commencement Date, Tenant cove- nants and agrees to pay Landlord rent during the Term as follows: (i) Annual "Basic Rental" of Seventy -Five Thousand Dollars ($75,000.00) per Rental Year. If any Rental Year is shorter than a full calendar year, Basic Rental shall be prorated on a per diem basis. Basic Rental shall be payable in advance and in equal monthly installments of Six Thousand Two Hundred Fifty and No/100 ($6,250.00) Dollars on the first day of each calendar month during the Term following the Rental Com- mencement Date. The first monthly install- ment of Basic Rental shall include Basic Rental prorated on a per diem basis for the period from the Rental Commencement Date to the last day of the same calendar month; and "Contingent Rent" equal to fifteen percent (15%) of Net Income Available for Distribu- tion per Rental Year. Contingent Rent shall be payable annually in arrears within one hundred twenty (120) days following the end - 5 - 10685 rrA of each Rental Year and the end of the Term simultaneously with Tenant's delivery of the Annual Statement for the subject Rental Year. Within one hundred twenty (120) days after each Rental Year and after the end of the Term, Tenant shall deliver to Landlord an annual audited financial statement pre- pared and certified by the Auditor (the "Annual Statement") showing, in reasonable detail, the Basic Rental, Debt Service Pay- ments, Operating Income, Operating Expenses and Net Income Available for Distribution for the preceding Rental Year. (b) Rental Payable Prior to Rental Commencement Date. Prior to the Rental Commencement Date, Tenant shall pay to Landlord, monthly rental in arrears equal to ten percent (101) of any actual amount received from Space Tenants as rent for the use of their respective spaces prior to the Rental Commencement Date. Section 1.7. Tenant's Records; Audits. For the purpose of permitting verification by Landlord of any amounts due as Rental, Tenant will keep and preserve for at least three (3) years from the end of the applicable Rental Year in Dade County, Florida, auditable original or duplicate books and records for the Playhouse Project which shall disclose all information required to determine Rental and other information necessary to comply with the terms of this Lease. If Landlord shall give written notice to Tenant of its desire to audit any Annual Statement, Landlord shall have the right to employ an independent certified public accounting firm of national prominence and reasonably acceptable to Tenant to examine such books and records as may be necessary to certify the amount of the Rental due with respect to any Rental Year.' The "big eight" accounting firms are hereby approved by Tenant for the purpose of this Section 1.7. After five (5) days advance notice to Tenant, Landlord's auditor shall have the right during business hours to inspect such books and records and to make any examination or audit"thereof which Landlord may desire. If such audit shall disclose a liability for Rental in excess of the Rental theretofore paid by Tenant for the Rental Year in question, Tenant shall promptly pay such additional Rental and if such audit shall disclose that the Annual Statement provided by Tenant was incorrect, then to the extent Landlord's audit discloses an overpayment of the Rental theretofore paid, Landlord shall promptly return the excess to the Tenant. If such audit discloses a five percent (5%) or greater underpayment of Rental for the Rental Year in question, Tenant shall reimburse Landlord for the reasonable cost of Landlord's audit within thirty (30) days after written demand. Section 1.8. Covenants for Payment of Taxes by Tenant. Tenant covenants and agrees to pay'and discharge al1 Taxes prior to delinquency. Tenant shall have the right to contest in good faith the amount or validity, in whole or in part, of any Taxes by appropriate proceedings; and Landlord agrees to consent to and/or formally join in any such proceedings to the extent allowed by law for the prosecution thereof. Tenant shall pay all charges for metered water, sewer service charges and other fees or charges lawfully imposed by any public authority upon or in connection with the Premises. Upon written request by Landlord, Tenant shall furnish or cause to be furnished to Landlord, offi- cial receipts of the appropriate taxing authority evidencing the timely payment of any Taxes. Section 1.9. Payment of Rental; Late Rental. Rental shall be payable without notice or deman there or and shall be 1068S. paid to Landlord at 190 N.E.'Third Street, Miami. Florida 33132 or at such other place as Landlord shall designate from time to time in a notice given pursuant to the provisions of Section 10.5, Any late payment shall automatically accrue interest from the date such payment was due at the Default Rate. ARTICLE II TRANSFERS AND SUBLETTING Section 2.1. Transfers. Tenant, on behalf of itself and any and all Owners, represents and warrants that neither Tenant nor any Owner has, as of the date hereof, made, created or suf- fered any Transfers. (a) Permitted Transfers. The following Transfers shall be permitted ereun er: (i) Any Transfer directly resulting from the foreclosure of a Leasehold Mortgage or the granting of a deed in lieu of foreclosure of a Leasehold Mortgage or any Transfer made by the purchaser at foreclosure of a Leasehold Mortgage or by the grantee of a deed in lieu of foreclosure of a Leasehold Mortgage, provided that such purchaser or grantee is an Institutional Investor or an agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by an Institutional Investor, and that such purchaser or grantee within six (6) months after taking possession of the Playhouse Project, shall have entered into an Accept- able Operator's Agreement. From and after the date that is one and one- half (1-1/2) years following the Rental Commencement Date, any Transfer to (A) an Acceptable Operator; or (B) an Acceptable Purchaser. If Tenant shall dispute findings with respect to the acceptability of any prospective purchaser or operator, Tenant may submit such dispute to arbitration pur- suant to Article VIII below. Any Transfer to a joint venture, general or limited partnership, joint stock associa- tion, corporation or Massachusetts -type business trust, a substantial interest in which is held by Tenant and the other interests in which are held by an Institu- tional Investor or by such other persons, .firms, corporations, or other entities to which Landlord shall have given approval in its sole discretion, provided that, within thirty (30) days after gaining possession of the Premises, the transferee shall have entered into an Acceptable Operator's Agree- ment. (iv) Any Transfer resulting. from the death or dissolution of an Owner (or other beneficial owner in Tenant) provided that same does not result in the dissolution or termination of Tenant or any general partner of Tenant. - 7 - 1068S. (v) Any Transfer by an Owner who is a limited partner of Tenant (or other -beneficial owner in Tenant) and who also is a Black American or Hispanic American into a charitable trust, a blind trust or for estate planning purposes for the immediate family provided, however, as to a Transfer by an Owner for estate planning purposes, the effective control of ownership is to remain in the transferor or another Black American or Hispanic American. (vi) Any Transfer of any limited partner's interest in Tenant as security for capital contribution loans made by another partner of Tenant or to another partner of Tenant as A result of default in.repayment of a cap- ital contribution loan. (vii) Any transaction or series of related trans- actions which would otherwise be a Transfer requiring Landlord's consent, if, after such transaction or related series, the Owners of at least fifty-one percent (51%) of the beneficial interest in the Tenant have not changed. (viii) Any and all permitted Space Leases pursuant to Section 2.2 below. (b) Transfers Requiring Landlord's Consent. All Transfers except those Transfers permitted pursuant to Section 2.1(a) above shall require Landlord's consent, which shall not be unreasonably delayed, withheld or charged for. Any consent to a Transfer shall not waive any of Landlord's rights to consent to a subsequent Trans- fer. Any Transfer made in violation of the terms of this Lease shall be null and void and of no force and effect, but shall not be deemed an Event of Tenant's Default. (c) Notice of Transfer; information as to Shareholders. (i) With respect to any Permitted Transfer, Tenant shall notify Landlord in writing of same within thirty (30) days after the date of Transfer. (ii) With respect to any Transfer which must be approved by Landlord pursuant to Section 2.1(b) above, Tenant shall give Landlord a written notice of any proposed Transfer (including reasonable background information necessary for Landlord to make an evaluation of the proposed Acceptable Operator accord- ing to the requirements of this Lease) not less than thirty (30) days prior to any such proposed Transfer. Landlord shall, within fifteen (15) days of its receipt of such information, advise Tenant if it consents to same. if Landlord shall not consent to a Transfer, Landlord shall state the reasons for such disapproval in detail in its notice to Tenant. If Landlord shall fail to duly notify Tenant of i,ts.disapproval within said iiftaen (15). day period', the Transfer shall automatically be deemed approved. -s- 1 ®685' (iii) Upon Landlord's reasonable request, Tenant shall furnish Landlord with a complete statement, subscribed and sworn to, setting forth the full names and addresses of all Owners of Tenant, and, if Tenant is a part- nership, all partners comprising Tenant. (iv) Notwithstanding the foregoing, the informa- tion required by subsections (i) and (iii) of this Section 2.1(c) shall not be required to be furnished with respect to the share- holders of any Owner whose shares are publicly traded. (d) Effectuation of Certain Permitted Transfers. No Transfer of a natur;; described in Sections . (a) (i), 2.1(a)(ii), 2.1(a)(111*), 2.1(a)(iv), 2.l(a)(vii) and 2.1(b) shall be effective unless and until the entity to which such Transfer is made shall, in writing in recordable form, for itself and its successors and assigns, and for the benefit of Landlord, expressly assume all of the obligations of Tenant under this Lease and agree to be subject to all conditions and restrictions to which Tenant is. subject; -provided, however, for the purposes of this Section 2.1(d), any Leasehold Mortgagee that becomes a transferee, and its successors and assigns, shall not be required to assume any personal liability under this Lease with respect to any matter arising prior to the period of Leasehold Mortgagee's or of such transferee's (or such successor's or assign's) actual ownership of the leasehold estate created by this Lease (it being understood, nevertheless, that the absence of any such liability for such matters shall not impair, impede or prejudice any other right or remedy available to Land- lord for default by Tenant); and provided further, that the fact that any such transferee of, or any other successor in interest whatsoever to, the lease- hold estate in the Premises, or any part thereof, shall whatever the reason, not assume such obligations or so agree, shall not (unless and only to the extent otherwise specifically provided in this Lease or agreed to in writing by Landlord) relieve such trans- feree or successor of or from such obligations, condi- tions or restrictions, or deprive or limit Landlord of or with respect to any rights, remedies or controls with respect to the leasehold estate in the Premises. Section 2.2. Space Leases. Tenant shall provide to Land- lord, on a quarterly basis, a copy of all Space Leases entered into for portions of the Private Development. Tenant shall have the right to enter into Space Leases of any part of the Private Development at any time and from time to time during. the Term with such Space Tenants and upon such terms and conditions as Tenant shall, in its sole discretion, deem fit and proper; provided, however, Tenant shall not enter into any Space Lease with any Space Tenant which does not deal with Tenant at arm's- length on market terms without first obtaining Landlord's approval, which approval Landlord may, in its sole discretion, withhold. If Tenant shall contemplate making any Space Lease with respect to which Landlord's approval is required pursuant to the foregoing sentence, Tenant shall submit to Landlord a copy of such proposed Space Lease together with any information actually known by Tenant concerning the, identity of the .�%,.,,)osed .,pace Tenant which Landlord may reasonably request in writing within - 9 - 10GSS, seven (i) days following Landlord's receipt of the proposed Space Lease. Within thirty (30) days after submission of such proposed Space Lease and information, Landlord shall notify Tenant whether the proposed :pace .,ease is approved. In the event Landlord shall 'ai.l io ,,t)ad within thirty (30) days after submission of Sp3c:.% Leas;i and information, the same shall be con- clusively deeded to have been approved by Landlord. • Section 2.3. Minority Participation in Ownershi . Tenant agrees that not less thantenten percent ( %) o t e ownership interest in Tenant shall be held by persons who are Black Americans and that not less than ten (10%) percent of the owner- ship interest in Tenant shall be held by persons who are Hispanic Americans. The foregoing shall not be applicable to any Institu- tional Investor, or designee or nominee thereof, who acquires the Tenant's interest by foreclosure of a Leasehold Mortgage or by deed of foreclosure. Tenant agrees that its partnership -o*r other document creating or governing the operation of Tenant) shall obligate any person or entity purchasing the interest of a defaulting Black American or Hispanic American owner to resell such interest to another Black American or Hispanic American or entity owned or controlled by a Black American or Hispanic American within two (2) years of the initial transfer of the defaulting owner's interest if the transfer is necessary to maintain the ten percent (10%) ownership by Black Americans and the ten (10%) percent ownership' by Hispanic Americans. ARTICLE III MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section 3.1. Leasehold Mortoaves. (a) Initial Financing of Private Develo ment. Provided that an Event of Default has not occurred, Tenant shall have the right at any time and from time to time to encumber this Lease and any Private Development by mortgage(s) or other security instrument(s) (including assignment(s) of the rents, issues and profits from the Private Development) to secure repayment of loans made to Tenant for the purpose of securing the finan- cing of the construction of the Playhouse Project or for the permanent financing or refinancing of the Playhouse Project. Tenant shall deliver to Landlord promptly after execution by Tenant a true and verified copy of any Leasehold Mortgage(s) and any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. (b) Refinancing Proceeds. Initially, Tenant shall be entitled to, encumber the Lease and the Private Devel- opment with Leasehold Mortgage(s) the principal amount of which, in the aggregate, shall not exceed the Development Costs. The initial financing may include any Development Costs loaned by Tenant and/or owners of Tenant. If Tenant thereafter proposes to engage in any Refinancinq, Tenant shall give notice thereof to Landlord not later than forty-five (45) days prior to the consummation of the transaction or transactions by which such Refinancing is accomplished. Such notice shall show, in reasonable detail, Tenant's estimate of the amount of the Refinancing Proceeds and the ex- pected affect of st: li Refii,•ancing Ripon Rental and Net Income Available Zoe Distrii)ucion for three (3) full Rental Years next following consummation of such - 10 - 10685: 8� Refinancing. Refinancing shall only be permitted if made at arm's-length by an Institutional Investor at prevailing interest rate and on other terms and con- ditions not any less favorable than prevailing market rates for similar transactions. Upon consummation of any Refiaanc:.ng; Tenant shall pay or cause to be paid to Landlord fiftesn percent (15%) of the Refinancing Proceeds, and thereafter Contingent Rent shall be determined by adjusting Debt Service Payments to reflect the Refinancing. Any Refinancing which does not comply with this Section shall be null and void and of no force and effect. (c) Rights of Leasehold Mort a eea. Landlord hereby agrees or t o ene t of the holder of any Leasehold Mortgage that during the continuance of any Leasehold Mortgage until such time as the lien of any Leasehold ;:iortgaga has been extinguished, and if a true and verified copy of such Leasehold Mortgage shall have been delivered to Landlord 'together with a written notice of the name and address of the owner and holder, as follows: (i) Landlord shall not agree to any mutual ter- mination nor, accept .any surrender of this Lease (except upon the expiration of the full term of this Lease) nor shall Landlord consent to any material amendment or modifi- cation of this Lease or waive any rights or consents it may be entitled to pursuant to the terms hereof, without the prior written consent of the Leasehold Mortgagee. Not- withstanding any provision to the contrary in this Lease, unilateral cancellation or termination or attempted unilateral cancel- lation or termination of this Lease by Tenant (except upon the expiration of the full term of this Lease) shall not be effective without the Leasehold Mortgagee's prior written consent. (ii) Notwithstanding any default by Tenant in the performance or observance of any covenant, condition or agreement of this Lease on the part of Tenant to be performed or observed, Landlord shall have no right to terminate this Lease even though an Event of Tenant's Default under this Lease shall have occurred and be continuing, unless and until Landlord shall have -given Leasehold Mortgagee written notice of such Event of Tenant's Default and Leasehold Mortgagee shall have failed to remedy such Default or to acquire Tenant's leasehold estate created hereby or to com- mence foreclosure or other appropriate pro- ceedings in the nature thereof, all as set forth in, and within the time specified by, this Article III. (iii) Subject to the provisions of subparagraph (iv) immediately below, Leasehold Mortgagee shall have the right, but not the obliga- tion, at any time prior to termination of this Lease and without payment of any penal- ty, to pay all of the rents due hereunder, to provide any insurance, to'pay any taxes and make any other payments, to make any 10685: C�,n repairs and improvements, do any other act or thing required of Tenant hereunder, and to do any act or thing which may be neces- sary and proper to be clone in the perfor- mance and of the covenants, con- ditions and :aq:_,aneats.hereof to prevent the termination of this Lease. All payments so made and all things so done and performed by Leasehold Mortgagee -shall be as effective to prevent a termination of this Lease as the same would have been if made, done and per- formed by Tenant instead of by Leasehold Mortgagee. (iv) Should any Event of Tenant's Default under this Lease occur, Leasehold Mortgagee shall have sixty (60) lays after receipt of notice from Landlord setting forth the nature of such Event of Tenant's Default to remedy same or, if the default is such that possession of the Premises or Private Devel- opment may be reasonably necessary to remedy the default, Leasehold Mortgagee shall, within such sixty (60) day period acquire Tenant's Leasehold estate created hereby or commence and thereafter diligently prosecute a foreclosure action or such other proceed- ing as may be necessary to enable Leasehold Mortgagee to obtain such possession, pro- vided that (a) Leasehold Mortgagee shall have fully cured any default in the payment of any monetary obligations of Tenant under this Lease within such sixty (60) day period and shall continue to pay currently such monetary obligations as and when the same are due and (b) Leasehold Mortgagee shall within six (6) months of the date that it takes possession of the Premises enter into an agreement on terms and conditions reasonably acceptable to Landlord with an Acceptable Operator for the continued operation of the Private Development (hereinafter called "Acceptable Operator's Agreement"). All rights of Landlord to terminate this Lease as the result of the occurrence of any such Event of Tenant's Default shall be subject to and conditioned upon Landlord having first given Leasehold Mortgagee, written notice of such Event of Tenant's Default and Leasehold Mortgagee having failed to remedy such default or acquire Tenant's leasehold estate created hereby or commence foreclosure or other appropriate proceedings in the nature there- of as set forth in and within the time peri- od specified by this subsection (iv). (v) An Event of Tenant's Default under this Lease which cannot be reasonably remedied by Leasehold Mortgagee shall be deemed to be remedied if (a) within sixty (60) days after receiving written notice from Landlord setting forth the nature of such Event of Tenant's Default, Leasehold Mortgagee shall have acquired Tenant's leasehold asi.ate created. hereby or commenced foreclosure or other appropriate proceedings in the nature �12 - 1.U(68&I 91 thereof, (b) Leasehold Mortgagee shall diligently and continuously prosecute any such proceedings to completion, (c) Lease- hold Mortgagee shall have fully cured any default '.n the payment, of any monetary obli- gations of renant under this Lease within such sixty (60) days period and shall there- after continue to faithfully perform all such monetary obligations, and (d) within six (6) months after Leasehold Mortgagee shall have gained possession of the Prem- ises, Leasehold Mortgagee shall have entered into an Acceptable Operator's Agreement. Upon the taking of possession of the Prem- ises by Leasehold Mortgagee, Leasehold Mortgagee shall perform all of the obliga- tiods of the Tenant hereunder as and when the 'sacne are due except any df such obli- gations which are not capable of (for example, the cure of bankruptcy and/or in- solvency of Tenant) being performed by Leasehold Mortgagee. Any assignee or suc- cessor in interest to a Leasehold Mortgagee that has become the owner of Tenant's estate under this Lease -and of the Private Devel- opment must assume all of Tenant's obliga- tions hereunder (and must immediately bring current all Rental obligations), but exclud- ing, however, those obligations which are not capable of being performed by Leasehold Mortgagee as above set forth. (vi) If the Leasehold Mortgagee is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy, debtor rehabilitation or insolvency pro- ceedings involving Tenant from acquiring Tenant's leasehold estate and/or the Private Development or obtaining possession of the Playhouse Project or commencing or prosecu- ting foreclosure or other appropriate pro- ceedings in the nature thereof, the times specified in subsections (iv) and (v) above for acquiring Tenant's leasehold estate or obtaining possession of the Playhouse Project or commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition, provided that Leasehold Mortgagee shall have fully cured any default in the payment of any monetary obligations of Tenant under this Lease and shall continue to pay cur- rently such monetary obligations as and when the same fall due, and provided that Lease- hold Mortgagee shall diligently attempt to remove such prohibition. (vii) Landlord shall mail to any Leasehold Mort- gagee that shall have previously notified Landlord in writing of the existence of its financing and provided Landlord with a notice address, a duplicate copy by cer- tified or overnight mail of any and all notices which Landlord may fzom time to time give to or serve upon Tenant pursuant to i;he provisions of this Lease; and no notice by - 13 - 1068.5 92- Landlord to Tenant hereunder shall be deemed to have been given unless and until a copy thereof has been so mailed to Leasehold Mortgagee. (viii) Foreclosure of a'Leasehold Mortgage or any sale thereunder, whether by judicial pro- ceedings or by virtue of any power of sale contained in the. Leasehold Mortgage, or any conveyance of the leasehold estate created hereby and/or the Private Development from Tenant to Leasehold Mortgagee by virtue or in lieu of the foreclosure or other appro- priate proceedings in the nature thereofr shall not require the consent of Landlord or constitute a breach of any provision of or a default under this Lemse. Upon such fore- closure, sa►lc3 or. con+vayance, Landlord shall recognize Leasehold Mortgagee, or any other foreclosure sale purchaser or grantee under such transfer in lieu of foreclosure, as tenant hereunder except that all obligations of Tenant herein contained shall be binding on the Leasehold Mortgagee or such purchaser or grantee (except those otherwise excluded in this Article 111) only from and after the date that it shall take title to the Tenant's leasehold estate and Private Devel- opment unless otherwise provided in this Article III; provided that: (x) the Lease- hold Mortgagee or such purchaser or grantee must immediately bring current all Rental obligations; (y) the Leasehold Mortgagee or any such foreclosure sale purchaser or grantee must enter into an Acceptable Opera- tor's Agreement, within six (6) months of the date of such foreclosure, sale or con- veyance, ' and ( z ) in the event there are two or more Leasehold Mortgages or foreclosure sale purchasers (whether the same or different Leasehold Mortgages), Landlord shall have no duty or obligation whatsoever to determine the relative priorities of such Leasehold Mortgages or the rights of the different holders thereof and/or foreclosure sale purchasers. In the event Leasehold Mortgagee subsequently assigns or transfers its interest under this Lease after acquir- ing the same by foreclosure or by an accep- tance of a deed in lieu of 'foreclosure, or subsequently assigns or transfers its interest under any new lease as contemplated by subsection (ix) below, and in connection with any such assig=ent or transfer Lease- hold Mortgagee takes back a mortgage or deed of trust encumbering such interest to secure a portion of the purchase price given Lease- hold Mortgagee as contemplated under this Section 3.1, Leasehold Mortgagee shall be entitled to receive the benefit of this Article III and any other provisions of this Lease intended for the benefit of the holder of a Leasehold Mortgage. Any person or entity to whom this Lease or any such new lease is assigned must either enter into or assume Leasehold Mortgagee's obligations under an Acceptable Operator's Agreement. - 14 - 10685: 93 (ix) Should this Lease terminate by reason of any default by Tenant hereunder, Landlord shall give notice thereof to #01 Leasehold Mort- gagees and Landlord shE.11, upon written request by a Leasehold Mortgagee to Landlord received within sixty (60) days after such termination, execute and deliver a new lease of the Premises to Leasehold Mortgagee for the remainder of the term of this Lease with the same covenants, conditions and agree- ments (except for any which have been satis- fied by or on behalf of Tenant prior to ter- mination and except those obligations from which Leasehold Mortgagees are relieved pur- suant to this Lease as are contained here- in) . No such terminat: :1 • ' . this Lease shall effect a termination oL this subsec- tion (ix) and the rights granted Leasehold Mortgagees herein. Landlord's execution and delivery of such new lease shall be made without representation or warranty of any kind or nature whatsoever, either express or implied, including any representation or warranty regarding title to the Premises or. any Private Development or the priority of such new lease. Landlord's delivery of the Premises to Leasehold Mortgagee pursuant to such new lease shall be made without repre- sentation or warranty of any kind or nature whatsoever, either express or implied, and Leasehold Mortgagee shall take any Private Development "as -is" in their then current condition. Upon execution and delivery of such new lease, Leasehold Mortgagee shall be responsible for taking such action as may be necessary to remove Tenant named herein from the Premises. Landlord agrees to cooperate with Leasehold Mortgagee in connection with the foregoing. Landlord's obligation to enter into such new lease of the Premises with the Leasehold Mortgagee shall be con- ditioned upon Leasehold Mortgagee having remedied and cured all monetary defaults hereunder and having remedied and cured or having commenced and diligently prosecuting the cure of all non -monetary defaults of Tenant susceptible to cure by any party other than by Tenant. If Landlord receives written requests in accordance with the provisions of this Section 3.1 from more than one Leasehold Mortgagee, Landlord shall only be required to deliver the new lease to the Leasehold Mortgagee who is, among those Leasehold Mortgagees requesting a new lease, the holder of the most junior Leasehold Mortgage, provided that such most junior Leasehold Mortgagee shall not later than the execution of such new lease, either (A) pay in full the sums secured by any or all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such most junior Leasehold Mortgagee, or (H) agree to reinstate all Leasehold Mortgages which are prior in lien to the Leasehold Mortgage held by such most junior Leasehold Mortgagee with the same relative priority as existed prior — is — 10685 MAA to the termination of this Lease. If any Leasehold Mortgagee having the right to a new lease pursuant to this Section 3.1 shall elect to enter into a new lease but shall fail to do so or shall fail to take the action required above, Landlord shall 3o notify all other Leasehold Mortgagees (if any) and shall afford such other Leasehold Mortgagees a period of sixty (60) days from such notice within which to elect to obtain a new lease in accordance with the provi- sions of this Section 3.1. Except for any liens reinstated pursuant to this Section 3.10 any new lease entered into pursuant to this Section 3.1 shall be prior to any mort- gage or other lien, charge or encumbrance on the fee of the Premises and shalt hav* the same relative priority in time, and in right as this Lease and shall have the benefit of all of the right, title, powers and privi- leges of Tenant hereunder in and to the Premises. At Tenant's request, Landlord will enter into an agreement in form and substance acceptable to Landlord and its counsel with any Leasehold Mortgagee granting to the Leasehold Mortgagee the rights set forth in this Article III. No Space Tenant will obtain any greater rights or priority which it might otherwise have by virtue of the non -disturbance provisions of Section,10.10 of this Lease if this Lease is terminated and a new lease is entered into pursuant to this Article III. (x) Landlord and Tenant shall cooperate in in- cluding in this Lease by suitable amendment from time to time any provision which may be requested by any proposed Leasehold Mort- gagees or may otherwise be reasonably neces- sary, to implement the provisions of this Article III provided, however, that any such amendment shall not in any way affect the term hereby demised nor affect adversely in any material respect any rights of Landlord or obligations of Tenant under this Lease. (xi) The provisions of this Section 3.1(c) shall not be applicable to any Leasehold Mortgage not held by an Institutional Investor. (xii) If the Leasehold'Mortgagee(s) does (do) not elect in a timely manner to continue with this Lease or enter into a new lease pursu- ant to the rights granted in this Article III, then, after all applicable time periods have expired for the benefit of such Lease- hold Mortgagee(s), DOSP shall offer the same right to enter into a new lease pursuant to Section 3.1(c)(ix) above to the Playhouse. Section 3.2. No Waiver of Tenant's Obligations or Land- lord's Rights. Nothing contains in this Article III or M any Leasehold Mortgage shall be deemed or construed to relieve Tenant from the full and faithful observance and performance of its covenants, conditions and agreements contained herein, or from Any liability for the non -observance or non-performance thereof, or to require or provide for the subordination to the lien of - 16 - 35 such Leasehold Mortgage of any estate, right, title or interest of Landlord in or to the Playhouse Project or this Lease. ARTICLE IV REMEDIES Section 4.1. Tenant's Default. (a) Events of Default - Tenant. The following are "Events of Tenant's Default (i) Failure - Payment of Money Failure of Tenant to pay any Renta when due and the continuance of such failure for a period of ten (10) consecutive days:.4fter written notice thereof from Landlord to Tenant. (ii) Failure - Performance of Other Covenants. Failure of Tenant to perform any of t e other covenants, conditions or agreements which are to be performed by Tenant under this Lease .(except failure to pay Rental as provided in .Section 4.1(.a) above), and the continuance of such failure for a period of sixty (60) consecutive days after written notice in adequate detail from Landlord to Tenant; provided, however, if such failure cannot reasonably be cured within sixty (60) days, and Tenant, within said sixty (60) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute an Event of Tenant's Default. Bankruptcy. (1) If an order or relief shall be entered upon any petition filed by or against Tenant, as debtor, seeking relief (or instituting a case) under Chapters 71 9, 11 or 13 of the Bank- ruptcy Code of 1978, it U.S.C. (Sec. 10 et seq.) or any successor thereto and, in the event of any petition filed against Tenant, such order or relief is not stayed or vacated with- in sixty (60) days; or (2) rf a receiver, trustee or other court appointee is appointed for all or a substantial part of Tenant's proper- ty, and in the event of an involun- tary appointment, such appointment is not vacated within sixty (60) days; or (3) If the leasehold interest of Tenant under this Lease is levied upon or attached by process of law; or (4) If Tenant makes an assignment for the benefit of creditors or takes the benefit of any insolvency act, or if any proceedings are filed by or against Tenant to declare Tenant - 17 - 10685 r, insolvent or unable to meet its debts and, in the event of proceedings filed against Tenant, such proceed- ings are not stayed or dismissed within sixty (60) days; or (5) If Tenant shall abandon the entire Premises for a period of ninety (90) consecutive days during the Term; or (6) If Tenant shall assign this Lease or sublet any portion of the Premises in violation of Section 1.3 or Article II of this Lease. (b) Remedies for Tenant's Default. If an Event of Tenant's Default Shall occur, Landlord, to the ftilleat extent permitted by law, shall have the right to pur- sue any and all remedies available at law or in equity, including the right to; (i) sue for and collect the Rent and/or all damages caused by such Event of Tenant's Default, (ii) terminate this Lease, (iii) terminate Tenant's right to possession of the Premises without termination of the Lease, and/or (iv) specifically enforce Landlord's ..rights and/or to enjoin Tenant. (c) No Personal Liability. Anything to the contrary not- wi—'tihstanaTnq, Tenant's liability under this Lease shall be limited to Tenant's assets and shall not extend to the separate assets of any person or entity owning any interest in Tenant or otherwise serving as an officer, director, agent or attorney of Tenant beyond any such person's or entity's interest in the assets of Tenant. Section 4.2. Landlord's Default. (a) Events of Default - Landlord. The failure of Landlord to perform any of the covenants, conditions or agree- ments which are to be performed by Landlord under this Lease, and the continuance of such failure for a peri- od of sixty (60) consecutive days after written notice in adequate detail to Landlord; provided however, if such failure cannot reasonably be cured within said sixty (60) day period, and Landlord, within such sixty (60) day period, shall have commenced and thereafter continued diligently to prosecute the cure of such failure, said failure shall not constitute an Event of Landlord's Default. (b) Remedies for Landlord's Default. If an Event of Land- lord's De au t shall occur, Tenant, to the fullest extent permitted by law, shall have the right to pur- sue any or all remedies available at law or in equity, including the right to sue for and collect damages, to terminate this Lease, to specifically enforce Tenant's rights, and to enjoin Landlord. (c) Playhouse' s Cure of Landlord's Default. Tenant shall recognize Playhouse's proper and timely cure of an Event of Landlord's Default. Section 4.3. Unavoidable Delay. The time for either .partv's-erformance of co,►en ants, provisions -and agreements "'of this Lease shall be extended for the period of any Unavoidable Delay; provided, however, that the party seeking the benefit of Unavoidable Delay shall, within fifteen (15) days after such party shall have become aware of such Unavoidable Delay, give 1os8 i written notice to the other party of the Unavoidable Delay and its reasonably estimated duration. Section 4.4. Obligations, Rights and Remedies Cumu- lative. The rights an reme ies of the part es, whether prov e at 'lw, in equity or under this Lease, shall be cumulative. The exercise by either party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, of any other such remedies for the same default or for any other default or breach by the other party. No waiver made by either party with respect to performance, manner or time of any obligation of the other party or any condition to its own obliga- tion under this Lease shall be considered a waiver of any rights of said party with respect to the particular obligations of the other party or condition to its own obligation, or a waiver in any respect in regard to any other rights of said party. ARTICLE V MECHANICS' LIENS; INDEMNIFICATION Section 5.1. Tenant to Discharge Mechanics' Liens. Tenant shall make or cause to be made prompt payment of all money due and legally owing to all persons and entities doing any work or providing any materials or supplies to the Premises. Tenant will not permit to be created or to remain undischarged any lien, encumbrance or charge arising out of work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or materialman which might become a lien, encumbrance or charge upon the Premises or any income therefrom. All work which Tenant is permitted or required to do on the Premises shall be deemed to be for the immediate use and benefit of Tenant, and no mechanics' or other lien shall be allowed against the estate in the Premises of Landlord, the Florida Department of State, or the Board of Trustees. If any such lien or encumbrance shall at any time be filed against the Premises, Tenant shall promptly take and diligently prosecute appropriate action to have the same discharged or to contest in good faith the amount or validity thereof, and if unsuccessful in such contest, to have the same discharged. If Tenant shall elect to contest such lien or claim, Tenant must file a bond satisfactory to cause same to be removed as a cloud on title to the Premises within thirty (30) days of the filing of the lien or claim. Upon Tenant's failure so to do, Landlord (and/or the holder of any underlying interest in the real estate upon which the Premises are located), in addition to any other right or remedy Landlord may have, may take such action as may be reasonably necessary to protect its interests and Tenant shall pay Landlord (and/or such holder) any amount reason- ably paid by Landlord (and/or such holder) in connection with such action, and all reasonable legal fees, costs and expenses incurred by Landlord (and/or such holder) in connection therewith (including reasonable counsel fees, court costs, costs of appeal and other necessary disbursements). Any such amounts not dis- bursed by Tenant within thirty (30) days after the date Tenant receives written notice from Landlord (and/or such holder) of the amount thereof and demand for payment of the same shall bear interest at the Default Rate from the date of the receipt by Tenant of the aforesaid written notice. Section 5.2. Notice of Non -Responsibility. Landlord shall have the right to post on the Premises and to file and/or record notices of non -responsibility and such other notices as Landlord may reasonably deem proper for the protection of Landlord's interest in the Premises. Tenant shallp befo�:.: the commericement of any work which might result in any lien on the Premises, give Landlord reasonable written notice under the circumstances of its intention to commence said work. - 19 - ARTICLE VI INSURANCE Section 6.1. Insurance Coverage. During the Term, Tenant, at its sole cost and expense, shall maintain or cause to be maintained: (a) Property Insurance. Insurance on the Private Devel- opment -against all risks of physical loss or damage, including the expense of the removal of debris from the Premises as a result of damage by an insured peril. Coverage shall be written on as broad an all- risk form as is commercially reasonable. The insur- ance shall be written in an amount not less than one hundred percent (100%)• of the then full insurable value thereof with coinsurance clauses of not less than eighty percent (80%). The term "full insurable value" shall mean the actual replacement cost excluding land, excavation costs and that part of the foundation cost which is customarily not insured under fire or casualty policies. Any dispute with respect to the adequacy of property insurance coverage shall be resolved through Arbitration pursuant to Article VIII. In the event property insurance proceeds are inadequate to rebuild and restore the damage at a time when Tenant was required to carry insurance with respect to same, and if the cause of the deficiency in insurance proceeds is the failure of the Tenant to adequately insure as required by this Section 6.1(a), Tenant must nevertheless rebuild and restore the Premises as required by Section 6.8 below. (b) Rental Value Insurance. Rental value insurance against loss of rental income from the Space Tenants in the Private Development for up to fourteen (14) months occasioned by any of the named or additional insureds during the period required to rebuild, repair, or replace property damaged as a result of perils insured under the Property Insurance to be maintained by Tenant pursuant to Section 6.1(a). Rental Value Insurance shall commence on the Rental Commencement Date or on such earlier date when monthly rental commences to accrue under Section 1.6(b) above. The adequacy of the Rental Value Insurance may be reviewed by Landlord every five years as to commercial reasonableness. Any disagreement between Landlord and Tenant with respect to the amount of Rental Value Insurance shall be resolved through Arbitration pursuant to Article VIII. (c) Liability Insurance. Comprehensive general liability, including contractual liability, or an equivalent policy form providing liability insurance against claims for personal injury or death or property damage, occurring on or about the Premises. Such insurance shall afford protection to at least a combined single limit for bodily injury and property damage liability of $5400,000 per occurrence. The adequacy of the liability insurance coverage may be reviewed every five years by Landlord for commercial reasonableness. Any dispute between the parties with. respect: to the adequacy -af 'I.=.abilit-! ,?.nsurance 10.1 'be resolved through Arbitration pursuant to Aiticia VIII. It is Landlord's intent that any liability - 20 - 1.oss5 9g insurance provided pursuant to this Section shall be deemed primary insurance coverage in the event of any loss arising from the premises and operations covered by this Lease. "el) Worker's Com ensation. Worker's Compensation and Employer's Liability- Insurance in compliance with Florida Statutes 5440 or its replacement statute. (e) Copies. On the Commencement Date, Tenant shall fur- nis Certificates of Insurance (or copies of the actual insurance policies if Landlord requests) to Landlord which shall clearly indicate that Tenant has obtained insurance in the type, amount and classifica- tions required by this Lease. Certificates for renew- al policies replacing any policies expiring during the Term (or the actual renewal policies, if Landlord requests) shall be deliverer at least thirty (30) days prior to the date of expiration of any policy together with proof satisfactory to Landlord that all premiums have been paid. Section 6.2. Responsible Companies - Blanket Insurance Permitted. All insurance provided or in this Article VI sha be erected under valid and enforceable .policies issued by insurers of recognized responsibility which are licensed to do business in the State of Florida. Anything in this Lease to the contrary notwithstanding, Tenant shall be required to carry insurance only in amounts which are commercially reasonable for similar properties in the geographic area of the Premises. All such companies must be rated at least "A" as to management, and at least "Class X" as to financial strength on the latest edition of Beat's Insurance Guide, published by Alfred M. Best Co., Inc., 75 Fulton Street, New York,. NY. The insurance required by this Article may be part of another policy or policies of the Tenant in which other properties and locations are also covered so long as the amount of insurance available to pay losses at the Premises is at least the minimum required by this Article VI, and said amount cannot be reduced in any manner by losses occurring at other properties or locations. Section 6.3. Named Insureds; Notice to Landlord and the Pla house of Cancellation. All policies o insurance require y this Article shall n icate as named or additional insureds Tenant, Landlord, the Department of State, the Board of Trustees, Playhouse, and any Leasehold Mortgagee as their respective interests may appear. Notwithstanding any such*inclusion, the parties hereto agree that any losses under such policy shall be payable, and all insurance proceeds recovered thereunder shall be applied and disbursed in accordance with the provisions of this Article. All insurance policies shall provide that no material change, cancellation or termination shall be effective until at least thirty (30) days after written notice to the additional and named insureds. Each policy shall contain an endorsement to the effect that no act or omission of Tenant shall affect the obligation of the insurer to pay the full amount of any loss sustained. Section 6.4. Landlord May Procure Insurance if Tenant Fails to Do So. If Tenant tails to mainta n any insurance required by t is Article VI, Landlord may, at its option, procure such insurance, and all amounts paid therefore by Landlord shall be payable together with interest thereon at the Default Rate. Landlord shall notify Tenant in writing of the dates, purposes, and amounts of any such -7ayments, and Tenant shall reimburse Landlord within ten (1uj days Zollowing receipt of such notification. - 21 - I.osss � QO Section 6.5. Insurance Does Not Waive Tenant's Obliga- tions. No acceptance or approve of any insurance Sy Lan lord shall relieve or release Tenant from any liability, duty or obligation under this Lease. £,action 6.6% Loss or Damage Not To Terminate Rental or This Lease. Any loss or amage by fire or other casualty to the Private Development shall not operate to terminate this Lease or to relieve or discharge Tenant from the payment of Rental, as the same may become due and payable under this Lease; provided, how- ever, in the event of any uninsurable loss or damage to the Premises, Tenant, at its option, may cancel and terminate this Lease. If Tenant terminates this Lease pursuant to this Section 6.6, Tenant shall, at its sole cost and expense, cause the Premises to be cleared of any debris caused by such loss or damage. Tenant's obligations under the immediately preceding senter.'-i shall survive termination of this Lease. Section 6.7. Proof of Loss. Whenever any part of the Private Development s a ave beih damaged or destroyed by fire or other casualty, Tenant shall promptly make proof of loss in accordance with the terms of the applicable insurance policies and shall promptly prosecute all valid claims which may have arisen against insurers or others based upon any such damage or destruction. Tenant shall promptly give Landlord written notice of any damage or destruction to the Premises. Section 6.8. Property Insurance Proceeds. (a) Authorized Payment. Except as otherwise provided in subsect on 6.8 (c), all sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable: (i} Directly to Tenant, if the total recovery is less than $100,000.00 (which $100,000.00 shall be adjusted on every fifth (5th) anni- versary of the Rent Commencement Date based upon changes in the cost of living), except that, if Tenant is then in default under this Lease, such proceeds shall be paid over to Landlord, who shall apply the proceeds first to the rebuilding, replacing, and repairing of the Private Development, and then to the curing of Tenant's default. Any remaining proceeds shall be paid over to Tenant. (ii) To the Insurance Trustee if the total recovery is $100,000.00 or more (adjusted for changes in the cost of living as set forth in Section 6.8(a)(i) above), to be disbursed to Tenant pursuant to subsection 6.8(b). (b) Disposition of Insurance Proceeds for Reconstruc- tion. All insurance proceeds shall be use , to the extent required, for the reconstruction, repair or replacement of the Private Development, so that the Private Development shall be restored to a condition comparable to the condition prior to the loss or damage (hereinafter referred to as "Reconstruction Work"). From the insurance proceeds received by the Insurance Trustee, there shall be disbursed to Tenant such amounts as are required for the Reconstruction Work. Tenant shall submit invoices or proof of pay- ment to the Insurance Trustee for payment or reim- - 22 - 10685 104 bursement in accordance with an agreed schedule of values reasonably approved in advance by Landlord. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work shall we iid `o Tenant and shall be considered Operating inc�-..te. (c) Leasehold Mortgagees- May Have Benefit of Insurance Procee s for. reconstruct on. In the event Tenant shall at any time author a Leasehold Mortgagee to enter upon the Premises and undertake on Tenant's behalf the reconstruction or repair of any part of the Private Development damaged or destroyed by casualty and to have and receive insurance proceeds for such purpose, said insurance proceeds shall be equally available to such Leasehold Mortgagee in the manner provided in Sections 6.8(a) and (b) above. Section 6.9. Covenant for Commencement and Completion of Reconstruction. Sub ect to the prov sions of this Article VI, Tenant covenants and agrees to commence the Reconstruction Work as soon as practicable (but in any event within two (2) months after the insurance proceeds have been received), and to fully complete such Reconstruction Work as expeditiously as reasonably possible (but in any event within twelve. (12) months from the commencement of the Reconstruction Work). The foregoing notwith- standing, if it is not practical to commence Reconstruction Work within said two (2) month period or to complete such Reconstruc- tion Work within said twelve (12) month period, then such Recon- struction Work may be commenced and/or completed within a longer period, provided that such period shall be approved in writing by Landlord after written request from Tenant. Section 6.10. Waiver of Subrogation Rights. Anything in this Lease to the contrary notwithstanding r Landlord and Tenant each hereby waive any and all rights of recovery, claim, action, or cause of actions against the other, its agents, partners, officers, directors or employees, for any death or injury to any person or loss or damage that may occur to the Private Develop- ment or part thereof, or to any personal property of such party therein, by reason of fire, the elements or any other cause(s) which are insured against under the terms of valid and collect- ible insurance policies carried for the benefit of the party entitled to make such claim, regardless of cause or origin, including negligence of the other party hereto, its agents, officers, or employees; provided that such waiver by either Landlord or Tenant does not limit in any way such party's right to recovery under such insurance policies, and provided further that the insurer pays such claims. Landlord and Tenant shall each obtain an endorsement to all of their insurance policies to effect the provisions of this Section 6.10, provided that such endorsements are available at no additional cost. ARTICLE VII CONDEMNATION Section 7.1. Entire Premises Taken bv Condemnation. In the event that the whole---07 the Premises (or such portion thereof as shall, in the good faith opinion of Tenant, render it economi- cally unfeasible to effect restoration of the Premises) is the subject of Taking (a "Complete Taking"), Rental shall be prorated and paid by the Tenant to the date of the Taking and this Lease shall automatically terminate and becomes null and void as of the date of such Complete Taking. Upon said termination, the parties shall be relieved of all duties, obligations and liabilities - 23 - _10G85 arising under this Lease from and after the date of termina- tion. The award or awards of damages allowed to Landlord or Tenant shall be paid as follows: First: Them ihall be paid all expenses, if any, including reasonable attorneys' fees, incurred by Landlord and Tenant in such condemnatioq suit or conveyance (except that nothing contained in this Section shall require payment to Landlord of costs and expenses it may incur as the condemning authority). Second: Landlord and Tenant shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interests in the Premises and the Private Development as found by the court or jury in its condemnation award. If no such vparate awards are obtained, such balance shall be paid to i'enant and Landlord in the same proportion as the then Fair Market Value of each party's respective interest or estate in the Premises and the Private Development bears to the total Fair Market Value of the estates of both parties in the Premises and Private Development. In the event that the parties cannot agree upon the Fair Market Value of their respective interests and estates in the Premises and Private Development within thirty (30) days following the Complete Taking, such value shall be determined by Arbitration pursuant to Article VIII. Section 7.2. Partial Taking of Premises by Condemnation. In the event that less than all of the Premises shall be Taken and Tenant shall be of the good faith opinion that it. is economi- cally feasible to effect restoration thereof (a "Partial Taking"), then this Lease and all the covenants, conditions and provisions hereunder shall be and remain in full force and effect as to all of the Premises not Taken, except that Rental shall be paid in amounts reserved by this Lease to the date of said Par- tial Taking, and after such date the Rental for the remainder of the Premises shall be justly reduced by such an amount as may be agreed upon in writing by the parties. If Landlord and Tenant shall be unable to agree upon the amount of such reduction within thirty (30) days of the date of the Partial Taking, then the amount of such reduction shall be determined by an Arbitration pursuant to Article VIII. Tenant shall restore the Private Development so that it will be comparable to the Private Develop- ment prior to the condemnation, taking into consideration the fact of the condemnation. The award or awards of damages allowed Landlord and Tenant shall be paid to and received by the parties as follows: First: There shall be paid all expenses, if any, including reasonable attorneys' fees, incurred by Landlord and Tenant in such condemnation suit or conveyance (except that nothing contained in this Section shall require payment to Landlord of costs and expenses it may incur as the condemning authority); Second: There shall be paid to the Tenant the amount req'ured to complete the restoration of the Private Development; and Third: Landlord and Tenant shall be paid portions of the balance of said award or awards which are allocable to and represented by the value of their respective interests in the Premises and the Private Development as found by the court or jury in its condemnation award. if no such sep- arate awards are obtained, such balance shall be paid to Tenant and Landlord in the same proportion as the then Fair - 24 - 1LU685 � 03 Market Value of each party's respective interest or estate in the Premises and the Private Development bears to the total Fair Market Value of the estates of both parties in the Premises and Private Deveiopoert.; In the event that the parties cannot agree upon the Fair' Market Value of their respective interests and estates:in t'he Premises and Private Development within thirty (30) days following the Partial Taking, such value shall be determined by Arbitration pursu- ant to Article VIII. Section 7.3. Taking for Temporary Use of Leasehold Estate. If the whole or any part of the Premises shall e taken oor temporary uses or the whole or any part of the leasehold estate created by this Lease shall be taken, all awards or other payments shall be paid to Tenant alone, except that: (1) if any portion.of-gity•juch award or payment on account of a taking for**ti& orary use is made by reason of any damage to or destruction of any portion of the Private Development, such portion shall be applied to pay the cost of restoration; and (ii) if any portion of an award or payment on account of a taking for temporary use relates to a period beyond the date of expiration of the Term, such portion shall be paid to Landlord. In the event the parties cannot agree on which portion of any award is made on account of a taking for temporary use for a period beyond the date of expiration of the Term, such portion shall be determined by Arbitration pursuant to Article VIII. Rental shall not abate as a result of a temporary taking but payment thereof may be delayed until receipt of award therefor from the taking authority. ARTICLE VIII ARBITRATION Section 8.1. Applicability. All matters to be resolved by Arbitration pursuant to this Lease shall be decided in accor- dance with the provisions of this Article VIII. Except to the extent this Lease expressly provides that certain matters are to be resolved by Arbitration, all disputes between the parties shall be resolved by litigation. Section 8.2. Arbitration Panel. A panel of arbitrators ("Arbitration Panel") shall: --be established when disputes to be resolved by Arbitration pursuant to this Lease arise. The appointments to the panel shall be made in the following manner: (1) Landlord shall name one member; (2) Tenant shall name one member; and (3) The aforesaid members shall promptly name a third member. in instances of disputes with respect to the valuation of the Premises, the Private Development or the leasehold estate created by this Lease or determination of an Acceptable Operator or acceptable levels of insurance, all members of the Arbitration Panel shall be M.A.I. appraisers familiar with properties similar to rha Premises in the same geographical area as the Premises. In instances of disputes with respect to determination of "Devel- opment Costs", all members of the Arbitration Panel shall be - 25 - 106851 i 04 certified public accountants familiar with accounting work on properties similar to the Premises in the same geographical area as the Premises. If either party shall fail to designate a member within thirty (30) days after u writtea regs:est so to do by the other party, then such !?arty request the President of the Florida Chapter 's:. the uues:icAe& Arbitration Association to designate a member who when so designated shall act in the same manner as if he had been the member designated by the party so failing to designate as arbitrator. If the two members are unable to agree upon a third member within twenty (20) days from the last date of designation such third member shall be designated by the President of the Florida Chapter of the American Arbitration Association, upon the request of either of the two members. Section 8.3. Procedure for Arbitration. All actions, hearings and decisions of the Ar *:7,� f'panel shall be con- ducted, based upon and in accordaar.-:, Commercial Arbitra- tion Rules of the American Arbitration Association. In all con- troversies, disputes or claims with respect to the evaluation of real estate referred to Arbitration under the provisions of this Lease, the Arbitration shall be conducted in accordance with the Real Estate Valuation Rules of the American Arbitration Associ- ation. .In determining any matter before them, the Arbitration Panel shall apply the terms of this Lease, and shall not have the power to vary, modify or reform any terms or provisions of this Lease in any respect. The' Arbitration Panel shall afford a hearing to Landlord and to the Tenant and the right to submit evidence with the privilege of cross-examination on the question at issue. All arbitration hearings shall be held at a place designated by the Arbitration Panel in Dade County, Florida. The Arbitration Panel selected hereunder shall agree to observe the Code of Ethics for Arbitrators in Commercial Disputes promulgated by the American Arbitration Association and the American Bar Association, or any successor code. The decision of a majority with respect to any matter referred to it under this Lease shall be final, binding and conclusive on Landlord and Tenant and enforceable in any court of competent jurisdiction. Together with the determinations, the Arbitration Panel shall provide a written explanation of the basis for the determination. Section 8.4. Resolution of Dis ute. The Arbitrators appointed by Landlord and Tenant sha each deliver to the other two (2) panel members within thirty (30) days following the selection of the third arbitrator their respective proposal for resolution of the dispute. A hearing shall be commenced within sixty (60) days following the selection of the last of the third arbitrator. A court reporter shall make a transcript of the hearing. The parties and the Arbitration Panel shall use their best efforts to conclude the hearing within ten (10) days. The parties shall be entitled to such pretrial discovery as they may agree, or as determined by the Arbitration Panel. The Arbitra- tion Panel shall have the right to question witnesses at the hearings but not to call witnesses. The Arbitration Panel may grant continuances for good cause or with the agreement of both parties. The Arbitration Panel may render a decision at the close of the hearings or may request briefs on any or all issues. Any and all such briefs including reply briefs, shall be filed with the terms and on the schedule set by the Arbitration Panel, but in any event no later than five (5) days following the conclusion of the hearing. The Arbitration Panel shall render a determination within sixty (60) days from the conclusion of the hearing. The determination of the Arbitration Panel in all instances shall be limited to either the proposal submitted by Landlord or the proposal submitted by Tenant. The decision of the Arbitration Panel shall be final, binding and non -appealable. If no determination is rendered within such time, unless the - 26 - IL0685 105 parties agree otherwise, a new Arbitration Panel shall be selected as described above, but the new Arbitration Panel shall render a determination solely upon review of the record of the hearing without a further hearing. Section S.S. Cost of Arbitration. Each party shall pay the fees and expenses of the mem er of the Arbitration Panel designated by such party, such party's counsel and witness fees, and one-half (1/2) of all expenses of the third member of that Arbitration Panel. ARTICLE IX RIGHTS OF OCCUPANCY AND ACCESS; MAINTENANCE, OWNERSHIP OF IMPROVEMENTS Section 9.1. Quiet Enjoyment. Landlord represents and warrants that Tenant, upon paying the Rental pursuant to this Lease and observing and keeping the covenants and agreements of this Lease on its part to be kept and performed, shall lawfully and quietly hold, occupy and enjoy the Premises without hindrance or molestation by Landlord during the term of this Lease or by any person or persons claiming under Landlord. Section 9.2. Waste. Tenant shall not permit, commit or suffer waste or impairment of any part of the Premises. Section 9.3. Maintenance and Cooperation of Private Development. Subject to the provisions of this Lease with regard to casualty and condemnation, Tenant shall at all times keep the Private Development constructed on the Premises and all furnish- ings located therein in good and safe condition (reasonable wear and tear excepted). Tenant shall comply with all laws, ordi- nances, codes -and regulations and with the provisions of the Tri- Party Agreement in its occupancy, maintenance and operation of the Private Development and the Premises. Section 9.4. Ownership of Private Development During Term. Prior to the expiration or termination of this Lease title to the Private Development shall not vest in Landlord or any other person or entity, but shall remain in Tenant. During the Term, Tenant shall be entitled to claim depreciation on the Private Development for all taxation purposes. If this Lease shall terminate prior to the scheduled expiration of the Term, and if at that time any Leasehold Mortgagee exercises its option to obtain a new lease for the scheduled remainder of the Term pursuant to Section 3.1, then title to the Private Development shall automatically pass to, vest in and belong to such Leasehold Mortgagee or any designee or nominee of such Leasehold Mortgagee, until the expiration or sooner termination of the term of such new lease. Landlord and Tenant covenant that each will execute and deliver such further assurances and instruments of assignment and conveyance as may be required by the other or by any Lease- hold Mortgagee for the purpose of confirming the automatic vesting of title as provided in this Section 9.4. Section 9.5. Surrender of Premises. Except as provided in Section 9.4 above, upon the expiration or termination of the Term, title to the Private Development shall vest in Landlord and it shall be lawful for Landlord to reenter and repossess the Premises and the Private Development thereon without process of law. Tenant hereby waives any demand for possession upon ter- mination or expiration of the Term, and Tenant agrees to sur- render and deliver the Premises and the Private Development without process of law, peaceably to Landlord immediately upon such expiration or termination. - 27 - ILosss O�) ARTICLE X MISCELLANEOUS PROVISIONS Section 10.1. No Partnershie or Joint Venture. Nothing contained in this Lease is intended or shall e construed in any manner or under any circumstances whatsoever as creating or establishing a partnership or a joint venture between Landlord and Tenant, or as constituting Tenant as the agent or representa- tive of Landlord or Landlord as the agent or representative of Tenant for any purpose or in any manner whatsoever. Section 10.2. Recording; DocumentarX Stam s. This Lease, or a memorandum or sort form Tireof in form mutually satisfac- tory to the parties shall be recorded among the Official Records of Dade County, Florida, and either party may cause any modifica- tion or addition to this Lease or any ancillary document relevant to this transaction to be so recorded. The memorandum shall include reference to the provisions of Article V. Recording costs and State of Florida documentary stamps which legally must be attached to this .Lease and any or all modification or additions, and applicable Dade County and State of Florida transfer taxes shall be paid in full by Tenant. Such amounts shall be considered Development Costs or Operating Expenses. Section 10.3. Florida and Local Laws Prevail;_ Severabil- it This Lease shalla governed y the laws of the State of F orida. if any term, covenant, or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be determined by appropriate judicial authority to be illegal, invalid, or unenforceable the remaining terms, covenants and conditions of this Lease, or application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant, or condition of this Lease shall be valid and be. enforced to the fullest extent permitted by law. Section 10.4. Conflicts of Interest. No member, official representative, or employee of Lan or shall have any personal interest; direct or indirect in this Lease, nor shall any such member, official, representative or employee participate in any decision pertaining to this Lease which affects his or her per- sonal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. Section.10.5. Notice. Any notice or communication under this Lease shall be ed emea sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity at the address specified below or at such other address of which the other party shall be duly notified: (a) In the case of a notice or communication to Tenant, to: Coconut Grove Investments, Inc. c/o Mr. Jack Chambers and Mr. Seth Werner Werner Capital Corporation 2665 South Bayshore Drive Penthouse II Coconut Grove, Florida 33133 - 28 - 1068S 0 i' with a copy to: Greenberg, Traurig, Hoffman, Lipoff, Rosen & puentel 1221 Brickell Avenue Miami, Florida 33131 Attn: Matthew B. Gorson, Esq.; (b) In the case of a notice or communication to Landlord, to: Department of Off -Street Parking of The City of Miami 190 N.E. Third Street Miami, Florida 33132 Attn: Executive Director with a copy to: City of Miami Attorney's Office One S.E. Third Avenue, Suite 1100 Miami, Florida 33131 with a copy to: Coconut Grove Playhouse, Inc. 3500 Main Highway Coconut Grove, Florida 33133 Attn: Chairman and Artistic Director (c) In the case of a notice or communication to Playhouse, to: Coconut Grove Playhouse, Inc. 3500 Main Highway Coconut Grove, Florida 33133 Attn: Chairman and Artistic Director with a copy to: Fine Jacobson Schwartz Nash Block & England One CenTrust Financial Center 100 Southeast 2nd Street Miami, Florida 33131 Attn: Julie A.S. Williamson, Esq. All notices shall be deemed received when actually delivered if delivered by hand or by a,' nationally recognized overnight delivery service and shall be deemed delivered three (3) days following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given under this Lease must be in writing and must be given as provided in this Section 10.5. Section 10.6. Estoppel Certificates. Landlord and Tenant shall, at any time and from time to t Fe ,-within thirty (30) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same or to any pros- pective Leasehold Mortgagee, assignee or Space Tenant' designated by Tenant a certificate stating that:. ..ti) the Lease is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, the - 29 - �.oses: l 08 Lease is In full force and effect as modified, identifying such modification agreement, and if the Lease is not in full force and effects the certificate shall so state the reasons why, (ii) the Lease as modified repr:sents the entire agreement between the parties as to this leasing or, if it does not, the certificate shall so state why; (iii) the dates on which the Term of this Lease commenced and is scheduled to terminate; (iv) all condi- tions under the Lease to be performed by Landlord or Tenant as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which Landlord or Tenant, as the case may be, has against the enforce- ment of the Lease by the other party, or, if such conditions have not been satisfied or if there are any defenses or offsets, the certificate shall so state, and (v) the Rental due and payable for the year in which such certificate is delivered has been paid in full, or, if it has not been paid, the certificate shall so state. The party to whom any such certificate shall be issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. 2f either party shall fail to timely respond to a request by the other party for an estoppel certificate, the matters set forth in the requested but un- returned estoppel certificate shall be deemed to be true and correct and the party to whom such certificate was to have been issued may rely on the matters therein set forth and thereafter the party issuing the same shall be estopped from denying the veracity or accuracy of the same. Section 10.7. Provisions Not Merged with Deed. None of the provisions of this Lease, nor the separate estates of Tenant, and Landlord, are intended to or shall, in any event, be merged, including by reason of any transfer, whether by operation or law or otherwise, (i) transferring Tenant's leasehold estate in the Premises or its interest in any Private Development or any part thereof from the Tenant to Landlord, or (ii) transferring title to the Premises or any part thereof from Landlord to Tenant, and any such transfer shall not be deemed to affect or impair the provisions and covenants of this Lease. No such merger of estates shall occur unless and until all parties having any interest in this Lease, the leasehold estate created hereby, or the Private Development, including all Leasehold Mortgagees, shall join in the execution of a written instrument effecting such merger. Section 10.8. Titles of Articles and Sections. The titles of the several parts, Articles an3 Sections of this Lease are inserted for convenience of reference only and shall be dis- regarded in construing or interpreting any of its provisions. Section 10.9. Counte_r_Rar_t_s. This Lease is executed in six (6) counterparts, each of which shall be deemed an original, but such counterparts shall constitute one and the same instrument. Section 10.10. Non -disturbance and Attornment. Landlord covenants and agrees w th Tenant for the benefit of any and all Space Tenants occupying any part of the Premises that in the event of a termination of this Lease the possession of each such Space Tenant shall not be disturbed so long as such Space Tenant shall not be in default under its Space Lease beyond any appli- cable notice and curative period, provided such Space Tenant shall attorn to Landlord. This non -disturbance agreement shall be self -operative and no further agreement between Landlord and any such Space Tenant shall be necessary to effect the same; however Landlord agrees from time to time, promptly upon request of Tenant or any Space Tenant, it willIenter L'n%:: agreements with the Tenant and any such Space Tenant confirming such non - disturbance agreement. Any such confirmatory Agreement may be - 30 - 1 made on behalf of Landlord by its Executive Director. In the event of a. termination of this Lease, each Space Tenant shall attorn to Landlord. Tenant covenants that each Space Lease to which it shall be a party shall contain a clause expressly pro- viding that the Space Tenant thereunder shall attorn to Landlord in the event of a termination of this Lease, but the absence of such a clause from any Space Lease shall not relieve the Space Tenant from the provisions of this Section 10.10. Section 10.11. Non -Discrimination and Equal Opportunity. Tenant will use affirmative effort to seek and offer to minori- ty -controlled businesses the opportunity to lease such portions of the Private Development as may from time to time become avail- able in accordance with the Minority Participation Program at- tached hereto as Exhibit "F" and incorporated herein by this reference. Section 10.12. Successors and Assigns. Except to the ex- tent limited elsewhere in this Lease, all of the covenants, con- ditions and obligations contained in this Lease shall be binding upon and inure to the benefit of the respective successors and assigns of Landlord and the Tenant. Section 10.13. Lease Subordinate. This Lease and all of the terms and provisions hereof re subject and subordinate to the terms and conditions of the Senior Leases. Section 10.14. Approvals and Consents. Wherever in this Lease the approval or consent of any party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably with- held or delayed. Section 10.15. Exhibits. All Exhibits attached to this Lease are incorporated Herein by this reference. Section 10.16. Interpretation. Reference to any article, section, paragraph, exhibit, or s ,part thereof, unless otherwise provided shall refer to this Lease. Use of the term "including" shall mean "including, without limitation". The parties to this Lease have all participated equally in the negotiation and prepa- ration of this document; and the same shall not be more strictly construed against any one of them. Section 10.17. Legal Fees. If it shall become necessary for either Landlord or Tenant to employ an attorney to enforce or defend any of its rights or remedies hereunder because of the default or breach of any covenant, condition, or agreement here- under by the other party, then the prevailing party shall be entitled to recover such reasonable attorneys' fees and court costs, including fees and costs incurred at trial level and on appeals, as the prevailing party may incur in connection there- with. Section 10.15. Exculpation. It is the intent and agreement of the parties hereto that only the parties as entities shall be responsible in any way for their respective obligations here- under. In that regard, no officer, director, partner, investor, official, representative, employee, agent, or attorney of any of the parties to this Lease shall be personally liable for the per- formance of any obligation hereunder or for any other claim made hereunder or in any way in connection with this Lease, or any other matters contemplated herein or therein. Section 10..19. Entire Agreement. A reement. This Lmic se, the Tri-Party Agreement, and all of the other documents referred to therein and herein together contain the entire agreement between the parties - 31 - 10685, J�c hereto, and no representations, inducements, promises or agree- ments, oral or otherwise, between the parties not embodied or described in this Lease or the Tri-Party Agreement shall be of any force or effect. No modification or amendment of this Lease or of the Tri-Party Agreement shall be binding upon the parties unless such modification or amendment isi-In writing and signed by the party to be bound thereby. IN WITNESS WHEREOF, the parties hereof has cause this Lease to be executed as of the day and year first above written. [Corporate Seal] A1��tesF COCONUT INVESTMENTS, LTD., a Florida limited partnership Bys Coconut Corporation a Florida/j cor ion, Gener$Uaw the r By: etn-wernwt Fresiaen THE DEPARTMENT.OF OFF-STREET PARKING OF THE CITY OF MIAMI, an agency and instrumentality of the City of Miami, a municipal corporation of the State of Florida By: • J n J04ulv4pa, Ex cutive Director - 32 - 1�1 •�c C• Coo A A V i . MrBIT "0" Defined Terms "Acceptao.ie Operator Agreement" has the meaning ascribed to it in Section 3.1(c)(iv). "Acceptable Operator" means an entity possessing the experi- ence, qualifications, good reputation, financial resources and adequate personnel necessary for the proper performance of all of Tenant's obligations under this Lease in a manner consonant with the quality, reputation and economic viability of the Playhouse Project, including the obligation of Annual Basic Rental thereto- fore payable by Tenant under this Lease, as reasonably determined by Landlord. "Acceptable Purchaser" a person or entity having a good reputation and financial resources in the reasonable opinion of Landlord, to own the Private Development that shall have entered into an Acceptable Operators Agreement with an Acceptable Operator. "Additional Rental" means all payments of money required to be paid to Landlord by the Tenant under this Lease except Basic Rental and Contingent Rental. "Annual Statement" has the R_4ning ascribed to it in Section 1.6(a)(ii). The Annual Statement shall be certified by an Auditor to have been prepared in accordance with generally accepted accounting principles and generally accepted auditing standards as promulgated from time to time by the Financial Accounting Standards Board or any successor thereto. "Arbitration Panel" has the meaning ascribed to it in Section 8.2. "Auditor" means Kenneth Leventhal a Co. or such other nationally recognized firm of certified public accountants as may be used from time to time by the Tenant for the purpose of certifying the annual reports of its financial condition required by law.. Such firm of accountants must be a firm of national prominence and must otherwise be reasonably acceptable to Landlord. "Basic Rental" has the meaning ascribed to it in Section 1.6(a)(i). "Capital Improvements" means any addition to the Private Development or the construction of any additional Private Devel- opment or other construction in, upon or constituting part of the Premises (i) occurring subsequent to the Commencement Date, (ii) the cost of which is reasonable and verifiable and may be capitalized and depreciated in accordance with generally accepted accounting principles, (iii) the cost of which is not included in the construction and/or permanent financing of Development Cost, and (iv) certified by the Auditor. "Certificate of Final Completion" has the meaning ascribed to it in Section 1.1(c)(i). "Commencement Date" has the meaning ascribed to it in. Section 1.1(c). "Common Area" means those areas and facilities which may ba furnished by Tenant on the Premises for the non-exclusive general - 1 - 10685. 113 common use of Space Tenants and other occupants of the Private Development, their officers, agents, employees and customers. "Complete Taking" has the meaning ascribed to it in Section 7.1. "Construction Costs" means all hard and soft costs incurred in connection with the construction of the Playhouse Project. "Contingent Rent" has the meaning ascribed to it in Section 1.6(a)(ii). "DOSP Additional Parcel" has the meaning ascribed to it in Section 1.5. "DOSP Lease" means that certain lease dated June 1, 1986 between the State of Florida Department of State and DOSP, as amended from time to time. "DOSP" means the Department of Off -Street Parking of the City of Miami, an agency and instrumentality of the City of Miami. "Debt Service Payments" means all principal, interest, and other sums paid or payable during. the applicable period under or in connection with any Leasehold Mortgage(s) or on borrowing to finance Capital Improvements and whether made as regular pay- ments, prepayments or otherwise. Debt Service Payments shall not include any amounts payable -by Tenant to a lender based upon net cash flow from the Premises or any similar contingency interest payments. "Default Rate" means one hundred fifty (150t) percent of the prime rate .of interest, as announced from time to time by Southeast Hank. N.A., as its prime rate (the "Default Rate"); provided such Default Rate shall not exceed the highest rate allowed by law. "Development Costs" means an amount which shall be provided in reasonable detail to Landlord by Tenant and be acceptable to Tenant's Leasehold Mortgagees, equal to the aggregate of all costs and expenses actually incurred by Tenant for the purpose of and properly allocated to the initial development and construc- tion of the Playhouse Project, calculated without duplication or limitation (including costs and expenses during the first twelve (12) months following the Commencement Date), including; (1) Design, planning, architectural and engineering fees, costs and expenses; and presentation costs and expenses; (2) The cost of labor, equipment, supplies, mater- ials and services paid to contractors and subcontractors; (3) Fees and expenses. paid to contractors and subcontractors; (4) Legal fees, costs and expenses, and accounting costs, fees, and expenses; (5) Interest, commitment fees, points and other financing costs incurred in arm's length prevailing market rate transactions, and interest on money borrowed by Tenant from any of its Owners (or other parties having an ownership interest in Tenant) or any affiliated or related entities in connection with the development of the Playhouse Project at a cost not greater than the borrowing cost incurred' by such Owner or affiliate or related entities pursuant to arm's- length prevailing market rate transactions; Z 10685 \\4 (6) The cost of property, liability, workmen's compensation, title and other insurance; (7) The cost of obtaining permits and licenses, and all public charges; (8) Utility relocation costs and expenses, deposits, and tap -in fees or other fees for connection to utility systems and utility services during construction; (9) Reasonable costs and expenses incurred in connection with the negotiations and execution of this Lease; (10) The cost of initially furnishing and equipping management and promotion offices in the Private Development; (11) The cost of providing, furnishing, equipping and operating a field office at or near the Premises to or during construction of the Playhouse Project, including the costs of construction trailers or other temporary office structures, automobiles, office furniture, equipment, supplies, telephone, stationery, postage and duplication; (12) The allocable salaries, fringe benefits, payroll taxes, reasonable travel and moving expenses, and other costs of employment at such field office of (i) managers and promotion directors (but only to the extent incurred prior to the Opening Date), and (ii) allocable tenant coordi- nators, project accountants, secretaries, clerks and similar office personnel; (13) The cost of subleasing the Private Development for its initial occupancy, including advertising costs and the fees, commissions and expenses paid to leasing agents or brokers; (14) The cost of management, advertising and publicity; (15) Other costs and expenses which are of a type usually and customarily incurred in connection with development of a retail center similar to the Private Development; (16) Attorneys' fees of both Landlord and Playhouse which Tenant is obligated to pay pursuant to this Lease or the Tri-Party Agreement; and (17) The cost of the environmental audit pursuant to Section 1.4(h) of the Tri-Party Agreement. (18) The cost of surveys pursuant to Section 1.7 of the Tri-Party Agreement. (19) Capitalized Tenant Improvement costs and other capitalized improvement costs. (20) Developer's general and administrative expenses attributable to the Playhouse Project. (21) Tenant's net operating cash loss during the first twelve (12) months of operation following the Com- mencement Date which shall be determined by subtracting Tenant's operating expenses (excluding depreciation) in- curred during such period from all items of income received during the same period. - 3 - 115 To the extent that any of the above items are paid for by or on behalf of Landlord and/or by anyone other than the Tenant, such item or portion thareof shall no' constitute a Development Cost. Any dispute between the parties with respect to the calcula- tion of Development Costs shall be resolved through Arbitration pursuant to Article VIII. At either party's request and when feasible, Landlord and Tenant shall execute a certificate certifying the amount of the Development Costs. "Event(s) of Landlord's Default" has the meaning ascribed to it in Section 4.2(a). "Event(s) of Tenant's uefault" has the meaning ascribed to it in Section 4.1(a). "Existing Improvements" means those improvements located on the Premises on the date of this Lease. "Fair Market Value" means the price, as of the date in ques- tion, which a seller, willing but not obligated to sell, would accept for Landlord's interest in the Premises and the Private Development or the Tenant s estate in the Premises and the Private Development (as the case may be),, and which a buyer, willing but not obligated to buy, would pay therefor in an arm's length transaction. "Garage Parcel" shall have the meaning ascribed to it in item B of the Recitals. "Institutional Investor" and "Institutional Lender" mean any national bank organized under the laws of the United States or any commercial bank, or any savings and loan association, savings bank, trust, company or insurance company organized under the laws of the United States or any state of the United States, or any pension, retirement or welfare trust or fund supervised by a government authority of any state or the United States or any such trust or fund administered by an entity which is supervised by a governmental authority, and shall include any agent, designee or nominee of an Institutional Investor which is wholly owned or controlled by such Institutional Investor. "Insurance Trustee" means the Leasehold Mortgagee if, at the time insurance proceeds become payable, there is a Leasehold Mortgage; however, it there is no Leasehold Mortgage at the time insurance proceeds become payable, or if the Leasehold Mortgagee refuses to serve as Insurance Trustee, the Insurance Trustee shall be such commercial bank or trust company as shall be designated by Tenant and approved by Landlord, which approval shall not be unreasonably delayed, withheld, or charged for. "Leaseable Area" means the aggregate of the actual number of square feet of leaseable area in the Private Development designed for the exclusive use and occupancy of rent paying Subtenants. "Leaseable Area" shall not include Common Areas, mezzanine storage areas, areas used for management and promotion offices, mechanical equipment penthouse, and truck docks and loading areas and covered receiving areas adjacent thereto). "Leasehold Mortgage" means a mortgage, deed of trust or assignment of the rents, issues and profits from the Private Development, which constitutes a lien on this Lease and on the fee interest of Tenant in any Private Development during the Term. - 4 - 10685 ��b "Leasehold Mortgagee" means the owner and holder of a Leasehold Mortgage, provided, however, that Landlord shall have no duty or obligation to determine independently the relative priorities of any Leasehold Mortgages, but shall be entitled to rely absolutely upon a preliminary title report -current as of the time of any determination of the priorities~ of such Leasehold Mortgages and prepared by a generally -recognized title insurance company doing business in Miami, Florida. "Management Costs" means, for any Rental Year, four percent (0) of Operating Income for the same Rental Year. "Net Income Available for Distribution" means the operating Income for' the subject Rental Year, minus the aggregate sum of: (1) Operating Expenses for the same period, (2) Debt Service Payments for the same period, and (3) $165,000.00. Net Income Available for Distribution shall be dea±.rmined on an accrual basis in accordance with generally accepted accounting prin- ciples, consistently applied. "Operating Contributions" means any and all payments made to Tenant by any space tenant or other party as a contribution to- ward the cost of cleaning, maintaining, repairing and/or securing the Premises or any portion thereof, or as a contribution to any promotion fund, advertising fund or merchants association admin- istered by Tenant, or in consideration of the furnishing of utility services, or in consideration of the furnishing of sprinkler or fire protection systems and devices, or as a reim- bursement or contribution toward the payment of any Taxes or any other payment in the nature of a reimbursement of, or contribu- tion to, or charge in lieu of, any cost incurred by Tenant in connection with the ownership or operation of the Premises. "Operating Expenses" means the sum of (1) all expenditures or liabilities of Tenant incurred for the maintenance, operation or ownership of the Premises or any part thereof, including pay- roll and payroll expenses, Taxes, supplies, license and permit fees, repair and maintenance expenses, costs and expenses of cleaning, maintaining and repairing the Premises, utility charges, insurance premiums, auditing and professional fees and expenses, publicity costs and expenses (including contributions to any promotion fund, advertising fund or merchants association administered by the Tenant); and (2) Management Costs. In no event shall depreciation or any other non -cash flow item constitute a portion of Operating Expenses. "Operating Income" means the Tenant's gross operating rev- enues.arising out of or resulting from the rental and/or owner- ship and operation of the Premises (other than funds received as: (i) the capital contributions, (ii) insurance or condemna- tion proceeds, or (iii) the proceeds 'of loans, financings, sale of property, or assignment of this Lease). Operating Income shall specifically include Operating Contributions, common area maintenance charges and, other payments received from space tenants, all income from vending machines, telephones, pay toilets and other sources located in, on or about the Premises. Operating Income shall specifically exclude utility deposits, prepaid rents, prepaid payments and security deposits until earned, applied or forfeited. Notwithstanding the foregoing, to the extent Tenant shall receive insurance or condemnation proceeds or awards# any portion thereof which represent reimbursement to Tenant for items previously accountdd for as Operating Expenses shall be deemed to be Operating Income. "Original Term"' has the meaning ascribed to it in Section 1.2(a). - 5 - 10685 "Owner" means any person or entity which owns, directly or indirectly, legally or beneficially, one percent (1%) or more of the stock of the general partner of Tenant (excluding any shareholder of an Owner whose shares are publicly traded) or one percent (11) or more of any other form of ownership ii:�w:•±sr of the Tenant. The term "Owner" shall not include any ?tttitj who would otherwise be an "Owner" if the shares of such entity are publicly traded. An entity shall be considered to be one whose shares are publicly traded if said entity is listed for trading purposes on a securities exchange subject to the regulatory jurisdiction of the Securities 6 Exchange Commission (or its successor) or is publicly traded over the counter. "Partial Takinq" shall have the meaning ascribed to it in Section 7.2. "Permitted Transfers" means any Transfer pe%mit—nd ender Section 2.1(a). "Playhouse" has the meaning ascribed to it in the Recitals. "Playhouse Project" has the meaning ascribed to it in the Recitals. "Playhouse Property" shall have the meaning ascribed to it in item B of the Recitals. "Premises" has the meaning ascribed to it in the Recitals. "Private Development" shall mean all buildings and improve- ments from time to time existing as part of the Premises. Private Development shall be deemed to include all built-in fix- tures and equipment installed on the Premises and owned by the Tenant. "Reconstruction Work" has the meaning ascribed to it in Section 6.8(b). "Refinancing" means any financing from time to time by way of a Leasehold Mortgage, Assignment of Rents, Issues and Profits or similar financing which results in Refinancing Proceeds being available to Tenant. Refinancing shall not include any equipment leasing. Refinancing shall not include the initial financing of the Private Development as permitted in Section 3.1 hereof. "Refinancing Proceeds" means the net proceeds, whenever paid, disbursed to Tenant from any Leasehold Mortgage (including any subsequent disbursements on a mortgage loan theretofore made, such as a subsequent disbursement under a revolving credit) after deduction of: (i) all amounts 'required to repay the then exist- ing debt secured by all Leasehold Mortgages being refinanced, and (ii) all reasonable arm's-length costs and expenses associated with the negotiation and closing or consummation of such Lease- hold ,Mortgage, and (iii) reimbursement to Tenant of any Capital Improvements (not theretofore included in the Development Costs or otherwise repaid to Tenant from a prior Refinancing). Any dispute in the calculation of Refinancing Proceeds shall be resolved through Arbitration pursuant to Article VIII. "Renewal Term" has the meaning ascribed to it in Section 1.2(b). "Rental Commencement Date" means the one hundred eighty- first (181st) day following the Commencement Date. "Rental Year" means each calendar year during the Term; provided that the first Rental' Year shall commence on the Rental - 6 - Commencement Date and end on December 31st of the same calendar year, and the last Rental Year shall commence on January 1st and shall end on the last day of the Term. - "Rental" means all Basic Rental, Contingent Rent, Additional Rental, and all other amounts payable by Tenant to Landlord under this Lease. "Senior Leases" means, collectively, that certain lease dated August 5, 1981 between the Hoard of Trustees of the Internal Improvement Trust Fund of the State of Florida and the State of Florida Department of State as amended from time to time, the DOSP Lease, the "Playhouse Lease" (as defined in the Tri-Party Agreement), that certain lease dated January 27, 1982 between the State of Florida Department of State and the Playhouse, as amended from time to time, and that certain lease between the Playhouse and DOSP dated . 1989 pursuant to which DOSP leased from the Playhouse the First Floor Retail Area and the Adjacent Playhouse Parcel. "Space Lease" means any lease, license, or other agreement by which any person or other entity claiming under Tenant leases, licenses, or is permitted to use or occupy any part of the Premises or the Private Development. "Space Tenant" means any person, firm, corporation or other legal entity using or occupying or entitled to use or occupy any part of the Premises or the Private Development under a Space Lease. "Taking" means a taking.of any part of the Premises for any public use or purpose by the exercise of the power of eminent domain or an assignment bjr Landlord or Tenant acting jointly to avoid the proceedings of such taking. "Taxes" mean all real and personal property taxes, all ad valorem real property taxes, all taxes on Rental, all taxes on amounts payable pursuant to Subleases, public assessments and other public charges levied, assessed or imposed by any public authority against the Premises, including the Private Develop- ment, during the Term after the Rental Commencement Date. "Term" means the Original Term together with any Renewal Terms elected by Tenant. "Transfer(s)" means: (i) any total or partial sale, assignment or conveyance (other than by a Leasehold Mortgage), or any transfer in any other mode or form, of or with respect to this Lease or of the leasehold estate in the Premises or any part thereof or any interest therein, or any contract or agreement to do any of the same; (ii) any transfer of the stock of the general partner of Tenant or of any Owner other than an Owner whose shares are publicly traded, or any sale of a general partner's interest in Tenant; (iii) any merger, consolidation or sale or lease of all or substantially all of the assets of Tenant or of any Owner, other than an Owner whose shares are publicly traded, (iv) any Space Lease of. over fifty (50) percent of the Leaseable Area of the Private Development to a single Space Tenant (or to several Space Tenants who are related in their ownership to each other); (v) an additional general partner is added to Tenant; or (vi) any public or private offering of the stock of a general partner of Tenant or any other transfer of the beneficial owner- ship of Tenant if the result thereof would be that the stock- holders of such general partner on the Satisfaction Date would not own 51% of the issued and outstanding stock of such general partner :%ter completion of the offering. - 7 - 1o6ss. W3 "Tri-Party Agreement" has the meaning ascribed to it in the Recitals. "Unavoidable Delay" means strikes, lockouts, acts of God, inability to obtain 'labor or materials due to governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other similar causes beyond the reasonable control'of a party (not including such party's insolvency or financial condition). g 10685 '2c EXHIBIT E Permitted Title Matters* The Senior Leases "...N EMIT $OF" MINORITY PARTICIPATION In the development and operation of the, Playhouse Center Coconut Investments, Ltd. has as a primary goal a development that will be representative of its tarket and its community. Therefore, -the participation of minority businesses, organizations, and individuals including Black, Hispanic and other groups, in the development process is a key component of the Playhouse ;,eater. Coconut Investments, Ltd. is committed to providing a wide range of economic opportunities to all minorities in the Greater Miami area. The project should afford opportunities to all citizens within the region. The Proposer will make itself available as a resource to assist the City, the private sector, and the Playhouse Committee in achieving the minority participation goals and commits to insure full compliance with the Minority and women Business Affairs and Procurement Program. This com.mitnent includes% Develepr.ent of Team participation and equity investment opportunities once Coconut Investments, Ltd. is selected and the financing program is -approved.. Fostering of Business Development for Minority businesses and Individuals. Commitment to Professional Service Contracts in the various phases of the project. Commitment to substantial Minority Employment during construction, Commitment to Employment of Minorities in Management Positions. MINORITY EQUITY AND INVESTML"b'T PROGRAM Coconut Investments, Ltd. proposes to arrange for an investment opportunity in Playhouse Center development for members of the miamf minority investment community in accordance with the following Preliminary sumss Ownershifl. tot limited partner (or equivalent) in Playhouse Center with the remaining 80% owned by Coconut Investments, Ltd. Subject to the dilutive effects of financing the exact form of ownership is dependant upon the final financing program. 1OGISS, 122.. MULU- ZOt Pro rat& distribution (net of financing charges, recoupment of financings, Development Management and Contract Management Peas, and out of pocket expenses of the Developer and similar charges) of the following: Net Cash blow Tax Benefits Net sale/Rafinancinq proceeds Znvestznent. The minority equity investor would invest their pro rat& share of the required equity/capital, the precise investment to be determined after selection, subject to actual financing requirements and return criteria of the investors. Snvastor Greer. A balanced group of Hispanic and Black investors. Coconut Investments,Ltd., with the assistance of Jesse McCrary and Robert Trauriq, has began preliminarily to Contact potential investors. Upon final selection, we will begin intensive financial planning to further address the specifies of the Minority investment program. PROFESSIONAL SERVICES CONTRACTS. Coconut Investments, Ltd. again restates its commitment to provide maximum opportunity to engage minority personal service firms. The following minority firm has bean retained: Jesse McCrary Jr. attorney at law has become a member of the development team, as its community, legal, and Minority Affairs advisor. Part of Mr. McCrary's responsibility will be to develop the Minority participation Program and to further enhance the City's efforts in this area. In furtherance of its co=itment to minority participation, Coconut Investments, Ltd. intends to include other minority professionals in the development team., and to establish a local account with a minority owned banking establishment. �ef-1016A44K-14T-Ygw--. opportunities during construction minority work force involvement in this project will be encouraged as follows: Hiring practices during construction will place priority on employment of qualified minority skilled tradesmen and laborers. Job Opportunities will be disseminated through the Black and Hispanic communities as well as their respective service - oriented community based organisations. 10685 2.3 Lstablish bidding procedures which are fair and non- discriminatory gncourage the purchase of materials, supplies, and equipment from minority owned businesses. AAsist Minorities in securing bonding through cooperation with a community based business assistance program OPERAT212NS AND Ml►X&GE'M EIM. This proposal will provide for Management and operations employment openings to be made available for minority application. will devise a program to encourage minority tenancy and will not discriminate as to tenant locations. The leasinq strategy will provide technical assistance for store layout, design, and marketing. in marketing the project, a public relations campaign will be implemented to provide awareness of business opportunities in the project. 10685 124 MIAMI REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Dade County, Florida. STATE OF FLORIDA COUNTY OF DADE: Before the undersigned authority personally appeared Sookle Williams, who on oath says that she is the Vice President of Legal Advertising of the Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Dade County, Florida; that the attached copy of advertisement, being a Legal Advertisement of Notice In the matter of CITY OF MIAMI ORDINANCE NO. 10685 In the .......... X............................. Court, was published in said newspaper in the Issues of December 21, 1989 Afflant further says that the said Miami Review is a newspaper published at Miami In said Dade County, Florida, and that the said newspaper has heretofore been continuously ppublished In said Dade County, Florida, each day (except 581urday, Sunday and Legal Holidays) and has been entered a second class mall matter at the post office in Miami In said Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and elfiant f er says that she has neither paid nor promised any person 1 or corporation any discount, rebate, commission or ref for the pur ose of securing this advertisement for pubif n In the sa ewspapar. \ ��t�ttCkltl.a/l,l n// �`�` • lo�rrip�xbscribed-before me this 21 = ecember• = 89 ....... day �.....� ..........M.D. 19....... �too _— JaQ: • Notary Public, Sta�.F da atLarge • . ( 1 (SEAL) ''A P • ... - tl My Commission e:fAllj DIQib11, 1rQ91. MR 114A //1111111111t CITY OF MIAMI, PILWOA All interested persons Will takA hotloe 1hit onAlto '14th idly 61 December, 1980. the City Commission of Miami; Florida,, adapted' the followingt(tled brdlnanoee: ORDINANCE NO.10814 AN EMERGENCY ORDINANCE 'ESTABLISHINIi ANEW SPEC)Al .' REVENUE FUND ENTITLED: "GRAND PRIX 1900°,:APPROPRI ATING FUNDS FOR ITS OPERATION 'IN' THE •AMOUNT OF' $760,000.FROM, THE STATE OF FLORIDA, DEPARTMENT OF,. COMMEIICE;''DIVISION OF ECONOMIC DEV9LOPMENT; ', CONTAINING A REPEALER PROVISIOWAND SIIVERA131LITY CLAUSE, ORDINANCE NO.10Itb11 AN ORDINANCE AMENDING THE FUTURE LAb USE MAP OF ORDiNANCE NO._100, AS. AMENDED, THE, MIAMI DOMPRE-, NORTHWEST 16TH AND 17TH STREETS; BETWEEN NORTH. > WEST 98TH AND 30TH AVENUES, MIAMI, FLORIDA (MORE PAR• TICULAR)_Y DESCRIBED HEREIN), BY CHANGING THE OES(d• NATION OF THE SUBJECT PROPERTY FROM'DUPLEX REST- DENTIA TO SINGLE-FAMILY RESIDENTIAL; MAKING FINDINGS;— INSTRUCTING -THE ;CITY CLERK TO; TRANSMIT A COPY, OF THiS ORDINANCE TO THE AFFECTED AGENCY; AND PROVID- ING A REPEALER PROVISION, SEVERABILITY CLAUSE AND EFFECTIVE DATE. ORDINANCE NO.10681 AN ORDINANCE AMENDING THE FUTURE LAND USE PLAN MAP OF THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN '. 19894000, FOR PROPERTY LOCATED AT APPROXIMATELY' 833.899 NORTHWEST 4TH STREET, 430 AND 490 NORTHWEST; SOUTH RIVER DRIVE, AND 401.449 NORTHWEST 9TH AVENUE,; MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN), BY CHANGING THE DESIGNATION OF THE SUBJECT PROP ERTY FROM MULTIFAMILY MEDIUM DENSITY%RESIDENTIAL TO MULTI -FAMILY HIGH DENSITY RESIDENTIAL; MAKING'FIND• INGS; AND PROVIDING AN EFFECTIVE DATE. - ORDINANCE NO.10882 AN ORDINANCE AMENDING THE ZONING ATLAS OF ORDI- NANCE NO. 95W. THE ZONING ORDINANCE:OF.THE CITY=OF,, MIAMI, FLORIDA, BY. CHANGING THE ZONING CLASSIFICATION OF401.449 NORTHWEST'9THrAVENUE, 833499,".NORTHWEST 4TH STREET AND APPROXIMATELY 430 AND 490:NORTHWEST ' SOUTH RIVER DRIVE, MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN), FROM RG•215 GENERAL RESIDENTIAL TO RG-3/5 GENERAL RESIDENTIAL; BY MAKING FINDINGS; AND BY MAKING ALL THE NECESSARY CHANGES ON PAGE; NO: 35 OF SAID ZONING ATLAS MADE A PART:OF ORDINANCENO. 9500 BY REFERENCE AND DESCRIPTION, "1N`ARTICLE. 3,SEC- TION 300, THEREOF; CONTAINING A REPEALER PROVISION, . AND A SEVERABILITY.CLAUSE. ORDINANCE NO.10683 AN ORDINANCE AMENDING THE FUTURE i-AND USE MAP OF ORDINANCE NO. 10544. AS AMENDED, THE MIAMI 'COMPRE• HENSIVE NEIGHBORHOOD PLAN 1989.2000: FOR'PROPERTY LOCATED AT APPROXIMATELY 148.170'N.W.'35TH'STREET, MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN),, , BY CHANGING THE DESIGNATION OF THE SUBJECT; PROP- ERTY FROM MULTI -FAMILY MEDIUM' DENSITY RESIDENTIAL TO GENERAL COMMERCIAL; MAKING FINDINGS; INSTRUCTING THE CITY CLERK TO, TRANSMIT THIS ORDINANCE TO THE' FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS; AND PRO- VIDiNG A REPEALER PROVISION, SEVERABILITY CLAUSE AND' EFFECTIVE DATE. ORDINANCE NO.10684 AN ORDINANCE AMENDING THE ZONING ATLAS OF ORDI• NANCE NO. 9M, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, BY CHANGING THE ZONING CLASSIFICATION, OF APPROXIMATELY 145.170 NORTHWEST WTH,STREET,:MIAMI, ' FLORIDA' (MORE PARTICULARLY DESCRIBED HEREIN) FROM RG•2/5 GENERAL RESIDENTIAL TO 00417 GENERAL COMMER CIAL BY MAKING FINDINGS; AND BY MAKING ALL THE NEC- ESSARY CHANGES ON PAGE NO. 21 OF SAID ZONING ATLAS MADE A PART OF ORDINANCE NO.95W BY REFERENCE AND DESCRIPTION IN ARTICLE 3, SECTION 300, THEREOF; CONTAINING A REPEALER PROVISION AND A SEVERABILITY ' CLAUSE. ORDINANCE NO.10685 AN ORDINANCE WITH ATTACHMENT, AMENDING THE FUTURE " LAND USE MAP OF ORDINANCE NO. 10544;'AS AMENDED, THE MIAMI COMPREHENSIVE NEIGHBORHOOD` PLAN 1989-2000, FOR PROPERTY LOCATED AT APPROXIMATELY 3490 AND 3500 MAIN HIGHWAY, MIAMI, FLORIDA (MORE PARTICU- LARLY DESCRIBED HEREIN), BY CHANGING THE DESIGNATION" OF THE SUBJECT PROPERTY: FROM RESTRICTED "COMMER-. CIAL AND SiNGLE-FAMILY RESIDENTIAL TO MAJOR PUBLIC - FACILITIES, TRANSPORTATION AND UTILITIES; MAKING FIND, INGS; INSTRUCTING THE CITY CLERK TO TRANSMIT A COPY OF THiS ORDINANCE TO THE AFFECTED AGENCIES; AND PROVIDING A REPEALER PROVISION, SEVERABILITY CLAUSE AND EFFECTIVE DATE. ORDINANCE NO.10886 AN ORDINANCE AMENDING THE ZONING" ATLAS OF ORDI- NANCE NO.9500, AS AMENDED, THE ZONING ORDINANCE OF THE CITY OF MIAMI, FLORIDA, BY CHANGING THE ZONING CLASSIFICATION OF 3490 AND 3500 MAIN HIGHWAY, MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN), FROM SPI.2 COCONUT GROVE CENTRAL COMMERCIAL DISTRICT AND RS-2/2 ONE FAMILY DETACHED. RESIDENTIAL TO GU GOVERN. MENT USE BY MAKING FINDINGS; AND BY MAKING ALL THE NECESSARY CHANGES ON PAGE NO. 46 OF. SAID ZONING ATLAS MADE A PART OF ORDINANCE NO. 9500 BY REFER- ENCE AND DESCRIPTION IN ARTICLE 3, SECTION 300, THERE- OF; CONTAINING A REPEALER PROVISION AND "A SEVERABIL- ITY CLAUSE. Said ordinances may be Inspected by the public at the Office of the City Clerk, 3500 Pan American Drive, Miami, Florida, Monday, through Friday, excluding holidays, between the hours of 8:00 a.m. and 5:00 p.m. - (6235) MATTY HIRAI CITY CLERK MIAMI, FLORIDA, 12/21 69-4.122123M