HomeMy WebLinkAboutO-10686J-89-661
7/31/89
ORDINANCE NO. 10686
AN ORDINANCE AMENDING THE ZONING ATLAS OF
ORDINANCE 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 GOVERNMENT 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
REFERENCE AND DESCRIPTION IN ARTICLE 3,
SECTION 300, THEREOF; CONTAINING A REPEALER
PROVISION AND A SEVERABILITY CLAUSE.
WHEREAS, the Miami Zoning Board, at its meeting of
June 19, 1989, Item No. 1, following an advertised hearing,
adopted Resolution No. ZB 66-89, by a 9 to 0 vote, RECOMMENDING
APPROVAL of a change of zoning classification, 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 change of zoning classification 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 applicants;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Zoning Atlas of Ordinance No. 9500, as
amended, the Zoning Ordinance of the City of Miami, Florida, is
hereby amended by changing the zoning classification of 3490 and
3500 Main Highway, Miami, Florida, more particularly described as
E 140' of the N 117, and the E 52.51, Block 29 (less N 1171),
FROW HOMESTEAD, as recorded in Plat Book B, at Page 106, of the
Public Records of Dade County, Florida, from SPI-2 Coconut Grove
Central Commercial District and RS-2/2 One Family Detached
Residential to GU Government Use.
Section 2. It is hereby found that this zoning
classification change:
(a) is in conformity with the adopted Miami Comprehensive
Neighborhood Plan;
(b) is not contrary to the established land use pattern;
(c) will not create an isolated district unrelated to
adjacent and nearby districts;
(d) is not out of scale with the needs of the neighborhood
or the City;
(e) will not materially alter the population density
pattern or increase or overtax the load on public
facilities such as schools, utilities, streets, etc.;
(f) is necessary due to changed or changing conditions;
(g) will not adversely influence living conditions in the
neighborhood;
(h) will not create or excessively increase traffic
congestion or otherwise affect public safety;
(i) will not create a drainage problem;
(j) will not seriously reduce light and air to adjacent
area;
(k) will not adversely affect property values in the
adjacent area;
(1) will not be a deterrent to the improvement or
development of adjacent property in accord with
existing regulations; and
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10686k
Wal
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(m) will not constitute a grant of special privilege to an
individual owner as contrasted with protection of the
public welfare.
Section 3. Page No. 46 of the Zoning Atlas, made a part of
Ordinance No. 9500, as amended, by reference and description in
Article 3, Section 300 of said Ordinance, is hereby amended to
reflect the changes made necessary by these amendments.
Section 4. All ordinances or parts of ordinances insofar as
they are inconsistent or in conflict with the provisions of this
Ordinance are hereby repealed.
Section 5. If any section, part of section, paragraph,
clause, phrase, or word of this Ordinance is declared invalid,
the remaining provisions of this Ordinance shall not be affected.
PASSED ON FIRST READING BY TITLE ONLY this 31st day
of July , 1989.
PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY
this 14th day of December _, 198�
AT ES
MWTY HIRAI
CITY CLERK
PREPARED AND APPROVED BY:
A,'I'j �1' &a(
�ARAFAEL E. SUAREZ-RIVAS
l ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
AJO=GTEM RNANDEZ
CITY ATTOR EY
GMM/RESR/ema/bss/M508
R L . SLAREZ , MAYOR
-3- i068Ci
VOLUNTARY DECLARATION OF RESTRICTIVE COVENANTS
THIS VOLUNTARY DECLARATION OF RESTRICTIVE COVENANTS
("Voluntary Declaration") by the Board of Trustees of the
Internal Improvement Fund of the State of Florida (the "Owner"),
in favor of the City of Miami, Florida, a municipal corporation
of the State of Florida (the "City") and the Department of Off
Street Parking of the City of Miami, an agency and
instrumentality --of the City ("DOSP").
W I_ T_ N E S S E T H:
WHEREAS, the Owner holds fee -simple title to that certain
parcel of real property located in the City of Miami, Florida, as
set forth on Exhibit "A" attached hereto and made a part hereof
(the "Property"); and
WHEREAS, the Owner is presently an applicant before the City
of Miami, City Commission for a change of zoning classification
for the Property in the Official Zoning Atlas of the City of
Miami, from RS 2/2 (One Family Detached Residential) and SPI-2
(Coconut Grove Central Commercial) to GU (Governmental Use); and
WHEREAS, the Owner is desirous of making a binding
commitment to assure that ingress and egress to the Property
shall be limited and restricted in accordance with the provisions
of this Voluntary Declaration;
NOW, THEREFORE, the Owner voluntarily covenants and agrees
that the Property shall be subject to the following restrictions
that are intended and shall be deemed to be covenants running
with the land binding upon th'e Owner of the Property, and its
successors and assigns as follows:
A. Vehicular Acce,s LimiLation. Owner shall not seek an
extension of McDonald Street from Grand Avenue, its current
termination point, South to Main Highway. No vehicular access
for ingress and egress to the parking garage to be constructed\on
the Property (the "Parking Garage") shall be permitted for
-1-
1(�fi8f]r
vehicles traveling southeast along Thomas Avenue, nor from
vehicles traveling along William Avenue. Notwithstanding
anything to the contrary in this paragraph A, the existing alley
along Thomas Avenue shall continue to be available for use by
service vehicles and vehicular access for ingress and egress to
the Parking Garage shall continue to be permitted for vehicles
traveling northwesterly along Thomas Avenue from Main Highway.
B. Effective Date. if the City Commission of the City
approves the Owner's pending application for an amendment to the
City of Miami Zoning Atlas, and after said approval has become
final and non -appealable, this instrument shall constitute a
covenant running with the title to the Property and be binding
upon the Owner, its successors and assigns. These restrictions
shall be for the benefit and limitation upon all present and
future owners of the Property and for the public welfare.
C. Amendment and Modification. This instrument may be
modified, amended or released as to any portion of the Property
by a written instrument executed by the then -owner of the
fee -simple title to the Property to be affected by such
modification, amendment or release providing that same has been
approved by the City of Miami Commission pursuant to a properly
advertised Public Hearing; if not previously released, this
instrument shall be released and terminated as of the date of the
termination of the ground lease from the Owner, as landlord, to
the Department of State, State of Florida, as tenant, which
currently encumbers the Property. Should this instrument be so
modified, amended or released, the Director of the Planning
Department or his successor shall execute a written instrument in
recordable form effectuating and acknowledging such modification,
amendment or release.
D. Term of Covenant. This Voluntary Declaration, on the
part of the Owner, shall remain in full force and effect and
shall be binding upon the Owner, its successors and assigns for
an initial period of thirty (30) years from the date that this
instrument is recorded in the Public Records of Dade County,
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10G8st
Florida and shall be automatically extended for successive
periods of ten (10) years thereafter unless modified, amended or
released prior to the expiration thereof.
E. Enforcement. An enforcement action may be brought by
the City or by any property owner within 375 feet of the Property
and shall be by action at law or in equity against any party or
person violating or attempting to violate any covenants, either
to restrain violations or to require compliance. The prevailing
party in the action or suit shall be entitled to recover costs
and reasonable attorneys fees. This enforcement provision shall
be in addition to any other remedies available under the law.
F. Severability. Invalidation of any one of the covenants
contained in this Voluntary Declaration by judgment of Court
shall not affect any of the other provisions of this Declaration,
which shall remain in full force and effect; provided, however,
that such invalidation may be grounds for the City to amend the
zoning and/or land -use regulations applicable to the Property.
G. Recording. This Declaration shall be filed of record
among the Public Records of Dade County, Florida, at the cost of
the Owner.
IN WITNESS WHEREOF, the undersigned have set their hands and
seals this day of /� D�,�,,,,/,�A 1989. • ����,,
THE BOARD OF TRUSTE�
INTERNAL IMPROVEME r;
THE STATE OF FLORT.;I
By: THE DEPARTMEN'I3 i
• Y
RESOURCES, DI tX� � �$.� •;t`i'
LANDS, HE`. • '''.
AS AGE T P RS&'.
1 ftj:
,253.4 1, F 0R3DA
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WITNESSES:
By:
it Director, ivision o S to Lands
1
4 (SEAL)
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10686t
STATE OF FLORIDA )
SS:
COUNTY OF Z
Before me, the undersigned authority, personally appeared
the
144A, if41,-r of the Department of Natural
Resources, Division of State Lands, of the State of Florida, as
agent pursuant to Section 253.431, Florida Statutes and
Resolution recorded in the minutes of April 15, 1980, of BOARD OF
TRUSTEES OF THE- INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF
FLORIDA, who acknowledged on this 6 day .of
1989, that he had the authority to egrrifl' {.
foregoing instrument for the purposes expressed the1dp
Z.
••- ,, r`.
NOTARY • P
State of Flor"id =
My Commission Expires: ;
Notary Public, State of Florida
My Commission Expires July 14, 1992
Bonded Thru Troy fain • Inuranco Inc.
184RL1540D/mdl
05587.0001
Approved ns to Porn,
and Ieriality by.
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V. a.
EXHIBIT "A"
TO
VOLUNTARY DECLARATION OP RESTRICIV13 COVENANTS
LEGAL DESCRIPTION OP
THE PROPERTY
All of tot 1 and a portion of Lot 2 and Tract "B" of ENGLE SUB-
DIVISION, 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 followss
BEGIN at the most Westerly corner of Lot 2 of ENGLE SUBDIVISION,
according to the plat thereof recorded in Plat Book 64 at Page 43
of the Public Records of Dade County, Florida, said corner being
on the are of a curve, concave to the Northwest, having a radius
of 25.00 feet, said corner bearing South 40054' 34" East from the
center of said curve; thence. run Northeasterly and Northerly
along the are of said ;urve, through a central angle of 49°05' 26
for a distance 21.42 feet to a point of tangency on the
Northwesterly boundary of said Lot 2; thence run NORTH along the
Northwesterly boundaryof Lots 1 and 2 of said ENGLE SUBDIVISION
for a distance of 175.01 feet to the point of curvature of a
curve, concave to the Southeast, having a radius of 25.00 feat;
thence run Northerly, Northeasterly, Easterly and, Southeasterly
along the are of said curve, through a central angle 135*02' 00'
for a distance of $.8.92 feet to a point of tangency on the North-
easterly boundary of said Lot 1; thence run South 44058' 00" Ess:
along the last described line for a distance of 224.20 feet to ,a
point, said point being at a distance of 36.83 feet from the moat
Easterly corner of said Lot 2; thence run South 40002' 00" West
for a distane of 93.00 feet to a point of deflection; thence run
south 32013' 32.75" West for a distance of 95.40 feet to a point
of intersection with the Southwesterly boundary of said Tract
"B", said boundary being coincident with the Northeasterly bound-
ary of Tract Ten (10) of MUNROE'S SUBDIVISION, according to the
plat thereof recorded in Plat Book D at Page 253 of the Public
Records of Dade County, Forida; thence run North 45001' 30" West
along the. last described line and the Southwesterly boundary of
said Lot 2 for a distance of 73.12 feet to a point; thence run
North 590 06' 56" East for a distance of 21.39 feet to a point;
thence run North 45001' 30" West for a distance of 60.40 feet to
a point; thence run South 59035' 12" West for a distance of 21.44
feet to the point of intersection with the Northeasterly boundary
of said Tract Ten (10); thence run North 45a 01' 30" West for a
distance of 6.30 feet to the POINT OF BEGINNING, containing an
area of 35,766 square feet, more or less, or 0.821 Acres, more
or less.
.. i
10 GS P
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO John Mulvena DATE : December 14, 1989 FILE :A-89-538
Executive Director
SUBJECT : Coconut Grove Playhouse
D.O.5. P.
FROM : �r)Miriam Maer0REFEREtJCES
Chief Assistant City Attorney
Zoning/Development Division ENCLOSURES: Covenant, Letter from
Albert E. Dotson
Enclosed please find cri_inal cQv-enant for referenced topic,
together with a copy of the cover letter from Al Dotson.
GMM/ra ec)5 ,�,
Enclosures
11K
cc: Sergio Rodriguez, Assistant City Manager
Rafael O. Diaz, Assistant City Attorney
Guillermo 01medillo, Deputy Director
Tatty Hirai, City Clerk
Gloria Fox, Asst. Executive Secretary
Hearing Boards
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c`ar'a
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Cn
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Fine Jacobson Schwartz Nash Block & England
One CenT'rust Financial Center
100 Southeast 2nd Street
Miami, Florida 33231
(305) 577-4000
Fax (305) 577-4088
December 12, 1989
VIA HAND DELIVERY
Miriam Maer, Esq.
City of Miami
City Attorney's Office
One Southeast Third Avenue, Suite 1100 n o
Miami, FL 33131 r�
Re: Coconut Grove Playhouse
Dear Miriam: y
Enclosed is original Voluntary Declaration of
Restrictive Covenants, executed by Percy W. Mallison, Director of
the Division of State Lands.
Please provide me with a copy of the enclosed
Declaration evidencing its recording. Also, please keep me
abreast of the progress of the issuance of the bonds and the
zoning hearing. For your information, I expect to receive the
remaining documents from the State in the near future.
WPRL:1LT1212JSW/lg
05587.0001
Enc.
cc: Jordan Bock, w/enc.
Matthew B. Gorson, Esq., w/enc.
Maurice Weiner, w/enc.
Barnett Bank Plaza - Suite 1100
One Fast Broward Boulevard
Ft. Lauderdale, Florida 33301
(305) 462-2800
Fax (305) 527-8747
Barnett Bank Building - Suite 348
315 South Calhoun Street
Tallahassee, Florida 32301
(904) 681-9500
Fax (904) 681- 6651106861
PZ011
ZONING FACT SHEET
LOCATION/LEGAL 3490 & 3500 Main Highway
E 140' of the N 117' and the E 52.5'
Block 29 (less N 117')
FROW HOMESTEAD (B-106) P.R.D.C.
APPLICANT/OWNER Board of Trustees of the Internal Improvement
Fund of the State of Florida
c/o Department of Natural Resources
3900 Commonwealth Blvd.
Tallahassee, FL 32399 Phone 488-1555
John J. Mulvena, Executive Director
Department of Off -Street Parking
190 NE 3rd Street
Miami, FL Phone 373-6789
ZONING SPI-2 Coconut Grove Central Commercial District
and RS-2/2 One Family Detached.
REQUEST Change of Zoning Classification in the Official
Zoning Atlas of Zoning Ordinance 9500, as
amended, the Zoning Ordinance of the City of
Miami, from SPI-2 Coconut Grove Central
Commercial District and RS-2/2 One Family
Detached Residential to GU Government Use.
RECOMMENDATIONS
PLANNING DEPARTMENT APPROVAL. The proposed zoning change is not in
harmony with the Miami Comprehensive
Neighborhood Plan (MCNP) adopted on 2/9/89, and
requires a plan amendment. There is a companion
item being presented to the Planning Advisory
Board with Planning Department's recommendation
for approval. The subject site is owned by the
State of Florida and the Offstree•. Parking
Authority; the MCNP establishes that Major
Public Facilities, Transportation, and Utilities
designation is intended "to accommodate the
development of major concentrations of national,
state, and local government activities,..." The
subject site is within the village center of
Coconut Grove, which is located north and west
of Main Highway; therefore, the proposed zoning
change to GU - Government Use will be
appropriate.
PUBLIC WORKS This property is within Coconut Grove sanitary
sewer study area and will be subject to review
when 'building plans are available. Some
restrictions in sanitary sewer capacity are
possible.
DADE COUNTY TRAFFIC
AND TRANSPORTATION No comments.
ZONING BOARD At its meeting of June 19, 1989, the Zoning Board
adopted Resolution 66-89, by a 9 to 0 vote,
recommending approval of the above.
Seven proponents were present at the meeting.
Two replies in favor and four objections were
received by mail.
HISTORY
Planning and Zoning Board Meeting 10/05/64
REQUEST Conditional Use for offstreet parking facilities
in conjunction with Grove Playhouse, and
Variance to waive 40 of the 88 parking spaces
required for an increase in seating capacity for
the Playhouse.
?lanning Department approval of the Conditional Use and Denial of
Variance.
Planning and Zoning Board Recommended approval of Conditional Use and
Denial of Variance. Res. 1326 and 1327.
City Commission Granted Conditional Use and Variance and appeal.
Res. 36091 and 36902 on 11/4/64. 1068E 2
X The proposed change is in harmony with the
adopted Miami Comprehensive Neighborhood Plan, and
and does not require a plan amendment.
X The proposed change is in harmony with the
established land use pattern.
X The proposed change is related to adjacent and
nearby districts.
X The change suggested is within scale with the
needs of the neighborhood or the City.
X The proposed change does not materially alter the
population density pattern and thereby does not
increase or overtax the load on public facilities
such as schools, utilities, streets, etc.
X Existing district boundaries are illogically drawn,
in relation to existing conditions on the property
proposed for change.
X There are changes or changing conditions that
make the passage of the proposed change
necessary.
X The proposed change positively influences living
conditions in the neighborhood.
X The proposed change does not create or excessively
increases traffic congestion or otherwise affects
public safety.
X The proposed change does not create a drainage
problem.
X The proposed change does not seriously reduce
light and air to adjacent areas.
X The proposed change does not adversely affect
property values in the adjacent areas.
X The proposed change is not a deterrent to the
improvement or development of adjacent property in
accord with existing regulations.
X The proposed change does not constitute a grant of
special privilege to an individual owner as
contrasted with protection of the. public welfare.
10G$6 3
YFS NO N/A
X There are substantial reasons why the property
cannot be used in accord with existing zoning.
X It is possible to find other adequate sites in the
City for the proposed use in districts already
permitting such use.
k le,
, it�
00,
T C tii,!
CHARLES
F R A IN K L I N
APPLICATION FOR AMENDMENT TO ZONING ATLAS
File Number ZA-83-
Board of Trustees of Internal Improvement kind of Florida and
We DPnMrjrnPnt nf Qgf-Strepthereby apply to the City Commis-
sion of the 1.ity or Miami for an amenament to the Zoning Atlas of the City of Miami as
more particularly described herein and, in support of that request, furnish the following
information:
1. Address of property 3jg0 Ntqin_HigbMX and 1500 N i_i i wag
_ X 2. Two surveys, prepared by a State of Florida Registered Land Surveyor. (Attach to
application)
X 3. Affidavit disclosing ownership of property covered by application and disclosure of
interest form (Form 4-83 and attach to application).
X 4. Certified list of owners of real estate within 375' radius from the outside
boundaries of property covered by this application. (See Form 6-83 and attach to
application,)
5. At least two photographs that show the entire property (land and improvements).
. X 6. Atlas sheet(s) on which property appears 46
X 7. Present Zoning Designation OPT-2 anri U-2 / 2
- x 8. Proposed Zoning Designation 0 Tl rC',nmprnmant ngPI ,
_x 9. Statement explaining why present zoning designation is inappropriate. (Attach to
application)
X,10. Statement as to why proposed zoning designation is appropriate. (Attach to appli-
cation)
`11. Other (Specify) -
12. Filing Fee of $_500. 00 according to following schedule:
(a) To: RS-1, RS- I.1, RS-2,
RG-I, PD4-i, PE)-HC,
(b) To: RC-2, RG-2.1,
RC-2.3, RO-I,
RO-2.1
t0.08 per sq.ft. of net lot area, minimum
J350.00
$0.10 per sq.ft. of net lot area, minimum
$400.00
10686
(c) To: RG-2.29 RG-3,
R0;3
50.12 per sq.ft. of net lot area, minimum
450.00
O
(d) To: CR- It CR-29
CR-39 04, CC-1,
CG29 WF-19 WF-R,
1-1,1.2; SPI-112,5#7,
899911912
0.14�per sq.ft. of net lot area, minimum
560.00
(e) To: CBD-1, SPI-6 MOO
per sq.ft. of net lot area, minimum
(f) For any change in a sector number only, for a particular district classifica-
tion, the fee shall be the same as for a change in its district classification, as
shown in (b) through (e) above.
(g)
Board f tees of In rna
Impro emn f i
Sign
Address c/o Department of
Off -Street Parking
Phone 373-6789
STATE OF FLORIDA) SS:
'COUNTY OF LEON )
o
City of Miami Department
of Off -Street Parking
Signature \,
Name JOHN J. MULVENA, Executive
Director
Address 190 N.E. Third Steet
Phone 373-6789
says that he is thet(Owner) (Authorized Agent
answer to question #1, above; that he has reac
true and complete; and (if acting as agent for
petition on behalf of the owner.
By:
SWORN TO AND SUBSCRIBED
before me this ZaIV day
9 of y,,rti r_{ 8U� .
MY COMMISSION EXPIRES:
Notary Public, State of Florida
My Commission Expires July 14, 1992
Bonced rhru troy Fain • Insurance Inc,
being duly sworn, deposes and
5 the rear property described in
ig answers and that the some are
he has outboritar to execute this
rd of Trusteelf Nnternal
rev&ment_F,Q'nd Filorida
Notaryub is tare o Florida o Large
Form 25-83 (9,
STATE OF FLORIDE SS:
'COUNTY OF DADE )
JOHN J . MULVENA being duly sworn, deposes and
says that he is the(Owner) (Autherizeii Aqcnt for weer of the real property described in
answer to question # i, above; that he has tdod the foregoing answers and that the same are
true and complete; and (if acting as agent for owner) that he has authority to execute this
petitio6 an behalf of the owner. City of Miami Department
of Off -Street Parking
By : ('� { , 71
: ��. ,u%� (SEAL)
''11
JOH1 J. MULViNA, Executive
.11 SWORN TO AND SUBSCRIBED Director
before me this d
of
MY COMMISSION EXPIRES:
NMY Rrbft 8dir d F10At L&V9
my tnieboM eon Mr. 0, I ➢2
A- wiI MM kirflwd Amn I a AGUM
s
a�r..a.oe
Notary Hublic, btate of Florida at Large
10686.
K
9. WHY THE PRESENT SPI-2 and RS-2/2.2 ZONING IS INAPPRO-
PRIATE.
This property is owned by two governmental entities,
the State of Florida and the City of Miami Department of Off
Street Parking. The State of Florida leases its portion of
the property to a branch of State government, the Department
of State, which operates the Coconut Grove Playhouse as a
State theater. Florida Statutes 265.2901 requires that all
rents and profits from the leasing of the Property be placed
in a trust fund for the public purpose of maintenance and
operation of the Playhouse and the operation of State the-
ater programs thereon.
The Department of Off Street Parking also intends to
use the Property for a public purpose; to -wit, the ownership
and operation of a parking garage to serve the pressing
needs of the Coconut Grove Playhouse and the Coconut Grove
community and also to enter a sublease for the retail
portion of the Coconut Grove Playhouse Project, described in
Exhibits F and G hereto.
The SPI-2 and RS-2/2 zoning designations are inappro-
priate because they fail to reflect the actual governmental
uses that do and will exist on the property. Moreover, the
area of the Property zoned residential has historically been
a portion of the Playhouse property used for parking pur-
poses, and not residential use.
10. WHY THE PROPOSED GOVERNMENTAL USE ZONING IS
APPROPRIATE.
The governmental use zoning is appropriate for the
Property because it literally reflects both (1) the owner-
ship of the Property and (2) the manner in which revenues
from leases and rental of the Property must be used. More-
over, both operation of the State owned Playhouse, the
parking garage on the premises, and development of the whole
Coconut Grove Playhouse Project described in Exhibits D and
E are lawful and appropriate governmental activities.
10686,
N
IOHN I. 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 ownership 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 319t, 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 I-. finding out more about our rezoning Find
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,
1 ` ! V T y
J n J . Mulven
Executive Director
Department of Off -Street Parking
cc: Members of the Coconut Grove Parking Advisory Committee 10686.
Seth Werner, General Partner, Coconut Investments, Inc.
Maurice Wiener, Chairman, Coconut Grove Playhouse Governing Committee y
I'
Department of Off Street Parking • 190 N.E. Third Street a Miami, Florida 33132 0 Tel: 305.373-6789 a Fax: 305-371-9451
AFFID'A.VT'T-: -'.
STATE OF FM%MA )
SS.
C =M OF UJ9N )
Before me, the undersigned authority, this day personally
appeared" -'t who being 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 accompanying application for a public hearing 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
hill. and ccmplete permission for him to act in their behalf for the change
,)r modification of a classification or regulation of zoning as set out in
the accompanying petition.
3. That the pages attached hereto and made a part of this
affidavit contain the current -names, mailing g addresses, phone numbers and
legal desczzpti.ons for the real property which ne is the owner or legal
representative.
4. The facts -as represented in the application and doct.rents
submitted in conjunction with this
Further Affiant sayeth not.
By:
Sworn to and Subscr^:.bed before me
this day of '' ?J j 19
;�;,•,,�u•� Public, State of Florida at Large
Ar Ccrrrission Expires:
Notary Public, State of Florida
My Conmission Expires July 14, 1992
Hcn•ad fhru iron Fain • Inwrancs Inc.
are true and correct.
arcV ofee of n ernal
I pr :Ut
u ida
(Name)
10686.
iz
OWNER'S LIST
Owner's Name -Board of Trustees, of the Internal Improvement Fund of the
State 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 Main Highway
(The Barnacle)
Street Address
Street Address
__Lot 8 S.E. of county road
Nhmroe's Plat EB i-253
Legal Description
Legal Description
13
AF`" 7DAVTT�
STATE OF F-LaUDA )
SS.
f COUNTY OF DADE )
Before me, the undersigned authority, this day personally
appeared JOHN J . MULVENA , who being by tre first duly sworn,
upon oath, deposes and says:
1. That he is the owner, or the legal representative of the
owner, submitting the accompanying application for a public hearing as
required by Ordinance No. 9500 of the Code of the City of Miami, Florida,
effecting the real propert• located in the City of Miami as described and
Listed on the pages attached to this affidavit and made a part thereof.
2. That a11 owners which he represents, if any, have given their
full and complete permission for him to act in their behalf for the change
?r modification 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 mummers and
legal descriptions for the real property which ne is the owner or legal
representative.
4. The facts -as represented in the application and doczsrents
submitted in conjunction with this affidavit are true and correct.
Further Affiant sayeth not.
City of Miami Department
of Off -Street Parkina
By: ��� _ ✓��ii r tJ�)
JOHN J.IAULViNA, Executive
. Direct-1
Sworn to and Subscribed before me
this �f4 day of 0r') 190
Notary Public, State of Florida at Large
My Commission Expires:
PA% WAft d FWft A4 L8W
9&KW owu Mepod GoOm ACOMY
10680.
14
OWNER'S LIST
Owner's Name Hoard of Trustees_ of the Internal Improvement Fund of the
State of Florida
t1ai 1 ing AddressC/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 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 Description
NONE
Street Address
Street Address
Legal Description
Legal Description
_1vssC.
15
l
b
r
. ,, i-,,,I A`,
DISCIJOS = OF CRIE 61UV
1. Legal description and street address of subject real property:
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
=ving a financial interest, either direct or indirect, in the subject
:natter of a presentation, request or petition to the City Commission.
)accordingly, question t2 requires disclosure of all shareholders of
corporations, beneficiaries of trusts, and/or any other interested parties,
together with their addresses and proportionate interest.
OWTERa: 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;;hib.B
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. Leyul description and street acWress of any z d ai pr. ope t (, )
owned by any party listed in answer to question ►2, and (b) Allocated within.
375 feet of the subject real property. �•---1
Lot 8 S.E. of County Road , oard f Trustees o& the Internal
R=oe's Plat EB D-253 I m vement Fund State of Florida
(3485 Main Highway)
By:
L, M&I
City of Miami Department of
Off -Street Parking
B y :
QMR OR ,1A=K4EX EUR
JOHN J. MULVENA, Executive Director
STATE OF FLORIDA ) SS:
COULWY OF - LEON )
says that ne Ls the (Cwner) (Attornr
described in" answer to question #1,
answers and that the same are true and
for owner) that he has authority to
form on behalf of the owner.
SMM ZED AND SUBSCRIBED
before me this
day ofT9w.1 .
----�-�—
t47r CM24ISSI :r MZTIMs:
Notary Public, State of Florida
�� ,nission Exaires July 14, 1992
Bv:
being duly sworn, deposes and
of the real proverty
that a has read the foregoing
,ete; (if acting as attorney
Lte Disclosure of rship
d of T us ees f e I ternal
o �mA ] rrc�') �hej to of Florida
N;o`tary. Public, State or 10686.
Florida at Large
1(0
I
S=z OF Fi RMN ) SS t
COLWY OF DADE ) '
JOHN J . MULVFNA p beiM duly .ern, deposes and
says tnac. ne is the duly appoinua Executive Director of Off t Utki nq,
the owner of the real prapesty aeacrsoeo in answer to quasz= j ., aw"I
that he has reed the fccegoing answers that the same are true and cat -
plett i and that he has the authority to exea=te this Disclomm of Owner-
ship form on behalf Of, the owner. .
Cite of Miami Department of
Off -Street Parking
MW
�
SrxM M = 1: vn R
before me this W "0
day of M d:2 j ;' s.-. ,.
t ==y c, State or
Florida at Large
Iff IQ" EXPM=t
ewad �mv Agow
C W%W/ab/G75
DISCLOSURE OF OWNIIRBHIP t =
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 detalls of
future lease and present status of transaction.
iTATE 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 s � 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.
c9-•..1.---- c/,--@..�'U�
Tom Tomasello
Deputy Assistant Executive Director
1068E,
1�
Administration Beaches and Shores Law Enforcement Marine Resources Recreation and Parks Resource Management State (ands
Bob Martinez Jim Smith Bob Butterworth Gerald Lewis Tom Gallagher Doyle Conner Bettv Castor
Govemor SecretarvofState Astorn"Generai State(:omptroiler �tateTreasurer CommwwnerotAgnculture CommwronerofEduaunn
Fine Jacobson Schwartz Nash Block & England
One CenTmet 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.
If you have any questions, please contact me at
577-4160.
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
One East Broward Boulevard
Ft. Lauderdale, Florida 33301
(305) 462-2800
Fax (305) 527.8747
Very truly ypurs ,�..
J4lie A. S illiamson
Barnett Bank Building • Suite 348
al South Calhoun Street I►� �
Tallahassee, Florida 32301 L/`,
(904) 681.9500
Fax (904) 681- 6651
State of Florida
DEPARTMENT OF NATURAL RESOURCES
Martory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399
TOM GARDNER
Executive Director
STATE OF FLORIDA
COUNTY OF LEON
C E R T I F I C A T E
;.
:crct:n• , : s:::.
BOB BUTTERWOR'H
Attorney Gentrai
GERALD LEWIS
State Comptroiier
BILL GUKTER
State Treasurer
DOYLE CON"NER
Commusioner of Agrtcuitttre
BETTY CASTOR
Commustoner of Education
PLEASE ADDRESS REPLY TO:
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 on March 22,
1988 and aoproved the following Item 33 on the agenda fcr that date.
Item 33
-27-E R=D FROM THE MARCH 8, 1988 AG—ENDA
. ^QUEST: Consideration of Board cf T-zustees of the Internal in-,provement'
Trust Fand Delecaticns of Au-Licrizv.
c__"^ R---K AKS rl1 delegations are to the t^.__ector c_` the De`J2x..=ent
Cf Natural Resources and are intended to replace and sunersede all previous
delegations c_ a:l,^r: whether esta:-- shed v =esoluzic- of t_ne Governor a=d
Cabinet s_ttinc as head of the Board of Trustees of the Internal 1=rovement
Trust :Zuid (Board) or by agency rule.
Upon approval, the delegations shall serve as the sole and unified 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 Depaztment shall initiate rulPmaiting 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 Depax-went.
RECOr0291M APPROVAL
"Working together to protect Florida's future" 21
Certification March 22, 1988
for Agenda Item 33
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.
Jud Br66ks, Administrative Asst.
Division of State Lands
Department of Natural Resources
�:: --�'1 B;5'S�`'°• :gbh:.
22
DELEGATION OF AUTHORITY ACTIONS
If Applicable:
Coconut Grove Playhouse
Project Name Rezoning Reguegt_
Project Number Leas__ a _No _ 3185
Type , ED
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
explanations .---
REVIEW ROUTING OVED BY. Sig at e) / Date
1. Originator -S f
2. Bureau Chief
3. Legal - Prior to
Execution
4. Legal - Subsequent
to Execution
5. Deputy Director
6. Division Director
7. Executive Director
DISTRIBUTION: (highlight as appropriate)
Original - Originator/Master File
Copy - Division Director
Copy - Purchasing (when requisition required)
23
�1
EXHIBIT A
Lt"L DESCRIPTION
_ _a
PLAYHOUSE PROP �'. NNIIIINIIIIIIlglIIllIIIIIIIIIIIIIIlII1N111111
The East One Hundred and Forty (140) feet of the North One
Hundred Seventeen (117) feet and the Ease Fifty -Two and One -Half
(52.50) feet 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 "8."at Page 106, of the Public
Records of Dada County, Florida.
Also -described as: -
The North 117 feet of the East 140 feet AND the east 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 FROM
HOMESTEAD, according to the plat thereof recorded in Plat Book
to Boo At Page 106 of the Public Records of Dade County, Florida.
4 � 2�_J AND
i
A portion of Lot Ten (101� MUNROE'S SUBDIVISION ,as per the plat
thereof recorded inc Plat Book) "D", at Page 253 of the Public
Records of Dade County, P1d'ri:da, 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 Dada 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 follows:
BEGIN at the most Southgrly corner of Tract " V of ENCLE'SUBDIVIV.
.SION, according to' the plat thereof, recorded in Plat Book 64 at
Page 43 of the Public Records of Dada County, Florida, said car -'
nor being on the NorthwesterlyRight-Of-Way boundary of Main
Highway; thence run Northl2r 44 45" East along the last described
line for "a distance of T2.90 feet to the point of curvature of -a
curve concave to the Southeast having a radius of 745�feet;
thence run Northeasterly along the are of said curve, being along
the Northwesterly Right -Of -Way boundary of said Main Highway,
being coincident with the Southaaater.ly boundary of said Tract
"9", through -a central angle of(0 14 03", for a distand4'.55.06-:
feet to a point, said point bearing North 57•01*12" Mast from the
center of said curve;'thance run North 59618'13" 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; thence run South 570
49'50" West for a distance of 5.70 feet to a point; thence run
North 33*32152" West for a distance of 6.57'feet to a -point;.
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
Tract "B", said.boundary being coincident with the Northeasterly
boundary of Lot Ten (10) of MUNROE"S SUDBDIVISION, as per the
Plat thereof recorded in Plat Book 0, at Page 253 of the Public
Records of Dade County, Florida; Thence North 45'01'30" West,
along said Southwesterly boundary of Tract "B", for a 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 paral-
lel to the Northeasterly boundary of said Lot Ten (10), for a
distance, of 60.40 feet; thence South 59*35' 12" West for a dis-
tance of 21.44 feet; thence North 45001' 30" West, along the
Northeasterly boundary of said Lot Ten (10) for a distance of
6.30 feet; to :,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 angle of 40*57'
38" for an arc 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 145.0.1 feet; thence
South 00003' 01" East for a distance of 117.04 feet; thence South
8V 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 89*43' 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 130.85 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
45*01' 30" West, along the Northeasterly boundary of said Lot Ten
(10) for a distance of 12.50 feet to .the point of beginning con-
taining 57345 square feet more or less or 1.316 acres more or
less. Lying within the City of Miami, Dade County,, Florida.
• r •
24
LEGAL DES—OrCRIIPTION
THE PREMUM'
A portion of 1.ot 2 and Tract "B" of ENGLE SUBDIVISION, according
to the plat-tnereoi as recorded in Plat Book 6y at Page 1*3 of the
Public Records of Dade County, Florida; AND all except the South
or Southeast 53 fast 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 Page 150 of the Public Records of Dade
County, Florida. AND a portion of Lot Ten (10) of MUNROE'S SUB-
DIVISION according to the plat thereof as recorded in Plat Book
"0" 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 follows:
Begin at the point of intersection of the Northeasterly boundary
of Lot Ten (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", ENGLE SUBDIVI-
SIO , according to the plat thereof recorded in Plat Book 64 at
Peg# 43 of the Public Records of Dade County, Florida; Thence
North 28044' 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 arc of said curve, being along the
Northwesterly Right -Of -Way boundary of said Main Highway, being
coincident with the Southeasterly boundary of said Tract "8", Lot
2 and the portion of said De HEDOUVILLE'S SUBDIVISION, through a
central angle of 14° 16 37", for a distance of 185.64 feet to the
most Easterly corner of the said Da HEDOUVILLE'S SUBDIVISION par-
cel, said point bearing North 46*58' 38" West from the center of
said curve; thence North 44058' 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 32.13' 32.75"
West for a distance of 95.40 feet 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; Thence 5outh 32' 13' 33" Wtst for a distance of
2.29 feetthence South 2r4l ' 19" East for a distance of
Z9.14 Feet; thence South 30.06' 27" East for a distance oT 15.67
feet; thence South 28.43' 39" West for a distance of 22.68 feet;
thence South 59'19' 33" West for a distance of 16.38 feet; thence
South 30657' 54" East for a distance of 30.13 feet; thence North
59.03' 43" East for a distance of 5.65 feat; thence North 89021'
58" 'East for a distance of 8.06 feet; thence North 28. 30' 24"
East for a distance of 44.16 feet; thence North 35*5q'4 2 " East
for a distance of 11.60 feet to the point of beginning, contain-
ing an area of 18,3gl square feet, more or less, lying within the
City of Miami, Dade County, Florida.
106►8f.
25
LEGAL DESCRIPTION
OF
GARAGE PARCEL
All of Lot 1 and a portion of Lot 2 and Tract "B" of ENGLE SUB-
DIVISION, according to the plat tnereof recorded in Plat Book 6"
at Page 43 of the Public Records of Dade County, Florida, osing
more particularly described as follows:
BEGIN at the most Westerly corner of Lot 2 of ENGLE SUBDIVISION,
according to the plat thereof recorded in Plat Boole 64 at Page 43
of the Public Records of Dade County, Florida, said corner being
on the are of a curve, concave to the Northwest, having a radius
of 25.00 feet, said corner bearing South 40.54' 34" East from the
center of said curve; thence run Northeasterly and Northerly
along the arc of said curve, through a central angle of 490051 26
for a distance 21.42 feat to a point of tangency on the
Northwesterly boundary of said Lot 2; thence run NORTH along the
Northwesterly boundary of Lots 1 and 2 of said ENGLE SUBDIVISION
for a distance of 175.01 feet to the point of curvature of a
curve, concave to the Southeast, having a radius of 25.00 feat;
thence run Northerly, Northeasterly, Easterly and Southeasterly
along the arc of said curve,'through a central angle 135.02' 00'
for a distance of 58.92 feet to a point of tangency on the North-
easterly boundary of said Lot 1; thence run South 44.58' 00" East.
along the last described line for a distance of 224.20 feet to a
point, said point being at a distance of 36.83 feat from the most
Easterly corner of said Lot 2; thence run South 40002' 00" West
for a distant of 93.00 feet to a point of deflection; thence run
south 32.13' 32.75" West for a distance of 95.40 feet to a point
of intersection with the Southwesterly ocundary of said Tract
"B", said boundary being coincident with the Northeasterly bound-
ary of Tract Ten (10) of MUNROE'S SUBDIVISION, according to the
plat thereof recorded in Plat Book "D" at Page 253 of the Public
Records of Dade County, Forida; thence run North 45•01' 30" West
along the last described line and the Southwesterly boundary of
said Lot 2 for a distance of 73.12 felt to a point; thence run
North 59.06' 56" East for a distance of 21.39 feet to a point;
thence run North 45001' 30" West for a distance of 60.40 feet to
a point; thence run South 59*35' 12" West for a distance of 21.44
feet to the point of intersection with the Northeasterly boundary
of said Tract Ten (10); thence run North 45001' 30" West for a
distance of 6.30 feet to the POINT OF BEGINNING, containing an
area of 35,766 square feet, more or less, or 0.821 Acres, more
or less. -
LEGAL DESCRIPTION
- OF _
D.O.S.P. ADDITIONAL PARCEL;
A portion of Lots 73 and 74 De HEDOUVILLE'S SUBDIVISION, accord-
ing to the plat tnereof as recorded in Plat Book "B" at Page 150
of the Public Records of Dade County, Florida, being more par-
ticularly described as follows:
Commence at the most Southerly corner of Tract "B" of ENGLE SUB-
DIVISION, according to the plat thereof as recorded in Plat Book
64 at Page 43 of the Public Records of Dade County, Florida. said
corner being on the Nortnwesterly Right -Of -Way boundary of Main
Highway; thence North 28°44'45" East, along -the last described
line; for a distance of 2.90 feet to the Point of Curvature of a
curve concave to the Southeast, having a radius of 745.00 feet;
thence Northeasterly along the arc of said curve being along the
Northwesterly Right -Of -Way boundary of said Main Highway through
a central angle of 11°48'43" for an arc distance of 153.61 feet
to the Point of Beginning of the following described parcel (said
point bearing North 49026'32" West from the center of said
curve); thence North 44058'00" West parallel with the South-
westerly Right -Of -Way line of Thomas Avenue (alley) for a dis-
tance of 50.93 feet; thence North 45'02'00" East, along the
Northwesterly boundary of said Lot 73, for a distance of 32.00
feet to a point, said point being on the Southwesterly Right -Of -
Way line of Thomas Avenue (alley) also being the Northeasterly
boundary of said Lot 72; tnence South 44°58'00" East, along the
Southwesterly Right -Of -Way line of Thomas Avenue (alley), far a
distance of 49.17 to a Doint on the next described curve, said
point bearing North 46° 58'38", West from the center of said
curve, thence Soutnwesterly, along a circular curve to the left 068�•
having a raduis of 745.00 feet and a central angle of 2 27'54"
(said curve also being alo.ng the Nortnwesterly Right -Of -Way
boundary of Main Highway) for an arc distance of 32.03 feet to
the Point of Beginning. Containing 1,603 square feet more or
less or 0.037 acres more or less. Lying within the City of
Miami, Dade County, Floriaa.
EXUBIT 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
Tom 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
EXHIBIT B2
1 i • r» i H� ��l��i �c-rtJtit� _��
aim
OFF-STREET PARKIN BQ&M
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
Mrs. Dianne Saulney Smith
Assistant County Attorney
Metro Dade Center
Ill ITV 1st Street, Suite 2810
Miami, Florida 33128
375-5106
Mr. Arthur Hertz
WMI Enterprises
3195 Ponce de Leon Boulevard
Coral Cables, Florida 33134
529-1403
Dr. Eduardo Padron
Vice President
Mimi Dade Cana mity College
New World Center Campus
300 NE 2nd Avenue, Room 1301
Miami, Florida 33132
JOHN I.MULVENA
6.n ui..n D-,FI tw
Mr. Arnold Dubin, Director flneritus
4567 Jefferson Avenue
Miami Beach, Florida 33154
538-7180 - Ham
Mr. Marx D. Cauthen, Director Emeritus
975 NE 89th Terrace
Miami Shores, Florida 33128
758-1019 - Home
John J. Mulvena (Executive Director)
Miami Parking System
190 NE Third Street
Miami, FL. 33132
373-6789
Department of Off Street Parking 190 N.E. Third Street Miami, Florida 33132 305-373.6; 89
28,
0HIBIT_C,
ESCROW AGREEMENT
r THIS ESCROW AGREEMENT is made and entered into this
27 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 & 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");
10686.
25
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
of the Playhouse Project (the "Developer's Sublease");
G. 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 Board and the State, and (c) " 12
ate 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 Board'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;
SfX (b)
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 Developer'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-
i
a
3a
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 E HT
1. Recitals. The recitals are true and correct and
are incorporated in this Escrow Agreement. T)
2. Term. Escrow Agent acknowle es receipt of dupli-
cate executed, originals of each of the P yhouse Project Agree-
ments 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 "S"•
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-
JLOG8
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; and 4-
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.L-e"WILI
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.
3. 1. S eorre a 4e leg 4 set- J�o
0 �X�.h�} a�iat�ned�. �O `&t" 4 F,-5,, rm;) 9reRAw"d_-
`. 3 2-
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 Escrov 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-
10686
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.
5.4. Discretion of Escrow Agent to File an InterZ
pleadeAction in the Event of Dispute. 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, ;;84_V
file .an-" interplead 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 may
consult with counsel of its own choice and shall have full and
complete authorization and protection in accordance with the
opinion of such counsel. Escrow Agent shall not be liable for
any mistakes of fact or errors of judgment, or for any acts or
omissions of any kind unless caused by its gross negligence or
willful misconduct.
5.6. Resignation of Escrow Agent. Escrow Agent
may resign upon ten (10) days' written notice to the Playhouse,
DOSP and the Developer. If a successor escrow agent is no
appointed jointly by the Playhouse, DOSP and the Developer withi
the ten (10) day period, Escrow Agent may petition a court
competent jurisdiction to name a successor. p�J
OgOk
6_. Mutual Cooperation: All parties ackno ledge that TDFVLFILJ,
in order to obtain the Board's and the State's copse is to and ALLONEX
joinders in the modifications and similar instruments all par- ATg>j5
ties must mutually cooperate at all times. The Playhouse, DOSP C*T
and the Developer covenant, represent and warrant to each other F *-N
that they shall mutually cooperate and work together at no cost 10
to the Developer (except the attorney's fees of the Developer) g A010
for the prompt fulfi lment of the requirements of this Escrow,
Agreement, including 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
provisions off� this Escrow Agreement; and (e) the Playhouse, DOSP
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 & England, Attention: Julie A.S. Williamson, Esq.; if
sent to Escrow Agent, then sent to the Miami address of Fine
Jacobson Schwartz Nash Block & 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.
7
Date: ZS
-7-
;j
COCtJNM GROVE PLAYHOUSE, INC.,
a Florida not -for -profit
corporation
Hy•
•its
[SEAL]
35
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
� G
�� Date: ! / By:
it 4-
[SEAL]
Date: 5
COCONUT INVESTMENTS, LTD., a
Florida limited partnership
By: �' a Florida
corpo tn*n it eneral
part r
By.
[SEALI
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 JACOBSOK SCHWARTZ NASH
BLOCK G ENGLAND, P.A.
Date: By:
u e A.S. Williamson
184t(L0007D/011788/05587.0001
-8-
�►XH I 9I T /� ���
The , bbashed Exhibits A--%h-rou9h H are sketches of the ro erties
described in thiC Agreements The properties described
in each Exhibit may not, at the time of the execution of this
T,er. Agreement, be described in the Department of State
` Lease, the Playhouse Leas . 4r�,th DOSP Lease as being leased
thereunder. The parties -Agreement are
s.imultaneQusly. executing an _Escrow Agreement pursuant -to which.,..
aai+aq _ , the subject underlying leases will be
amenAd 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 th-4C•Tx4,2aftq-_- Agreements
shall have been realized and shall be true and correct at the
time of the release of 04& 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 by
all parties and included in the final Exhibits.
085RL0071D
1
�� 3
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 (iii4
agrees that the foregoing provisions shall appl
Sublease and any and all Space Tenants occupying an
the Private Development.
u
MMIBIT D
TABLE OF CONTENTS
Page
SLac: ..,,: if
r
:a and Purpose .........................
1
Ar t i .-l e r
. •_;IZ i al
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 ...................... 6
7
Sec t i on
1 . 6
T i t 1 e . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Section
1.7
Surveys.. ........................
7
Section
1.8
Term of Agreement ................
8
Article IY
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.......... 6.................
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
10686
Article VII
insurance and
Casualty ........................
16
Section
7.1
Developer's Insurance............
16
Section
7.2
Responsible Companies - Blanket
rance Permitted............
17
Section
'7'.3.'
Named 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 naive
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
Secti.,-
7.8
Property Insurance Proceeds......
18
Sect..:.,
7.0
Covenant 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
by Condemnation ............... 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
11.5
Notice ..........................
24
Section
11.6
Titles of Articles and Sections
25
Section
11.7
Counterparts .............00.000.
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 .........................
26
,. - 40
TRI-PARTY AGREEMENT
THIS AGREEMENT is made this of , 1989, by
and among COCONUT INVESTMENTS, LL�;., ...arida 'lime ed partner-
ship ("Developer"), THE DEPARTMENT UFF-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 GROVE PLAYHOUSE, INC., a Florida not -for -profit
corporation ("Playhouse").
STATEMENT OF BACKGROUND ARID PURPOSE
A. Overview
On January 27, 1987, the Governing Commmittee 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 5, 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
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, th- 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 28, 1988, a Stipulation and Consent Final
Judgment was accepted, 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 -
4z
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 construct:
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
30,000 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, THEREFO".E, IN CONSIDERATION OF the foregoing, the cove-
nants and condit:iuns hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are
- 3 -
JLO58(
43
hereby acknowledged, DOSP, Playhouse and Developer hereby cove-
nant and agree as follows:
ARTICLE I
GENERAL PROVISIONS
Section 1.1. • Applicability of Statement of Background and
Purpose. The Statement of Background and Purpose is a descrip-
tion othe 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 Purpose 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 capitalized terms used in this Agreement
shall have the same definitions and meanings given to them in the
Retail tease of even date.
Section 1.4. Conditions Precedent. Except as provided in
this Article I, all of the o igations 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 -
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 -
1
45
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
M
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 -
1ases4�
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, the term off- th s 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 completions 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 -
t
,L
maintain, repair and replace connected portions of the improve-
ments lying on their respective parcels from the improvements
lying on an adjacent parcel to the extent reasonably necessary to
be conducted from another party's parcel and without material
interference of the operation of any business by the other party;
and (iv) reasonable access to the applicable improvements for the
purposes set forth in (i), (ii), and (iii) above.
Section 2.6. Maintenance and Use of Easements. Each of
the easement beneficiaries, respective y, shall at all times
repair and restore, as necessary as a consequence of its use, the
portions of any other party's improvements and/or parcel used by
them pursuant to the easement rights herein granted in a clean,
orderly 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
"Indemnitor") hereto (on behalf of hemselves 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 from 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 II.
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 Plan, 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.
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1
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 ordinances, 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
layout, 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 follow ng 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
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1068E
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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 Approval Process. DOSP
and the Playhouse steal have a period of thirty (30) days 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-
51
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 with 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 an-d—a—lT 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 height
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 Plans 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.
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Section 4.2. Commencement of Construction; Contribu-
tions. Within sixty (6 ) days after sat s action of all 6f the
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 rata 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 .ork 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.
10686.
Section 4.4. Permits and Approvals. Developer shall
secure and pay for any and all permits and approvals necessary
Ear proper construction and completion of the Playhouse Project.
Section 4.5. Pro ress of Construction. Developer shall
commence construction of the Playhouse Project 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 dispuce among
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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 be 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-
ings 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 shall utilize 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.
10686
55
Section 5.2. Security. DOSP shall provide the same
security for the Park ng 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 Art c e V and of Article II sha 1 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 II.
ARTICLE VI
TRANSFERS; MORTGAGEES
Section 6.1. Transfers. Prior to the Completion Date, no
transfers (of a tenant's —leasehold 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
commencing on the date possession is given to Developer under
Article I above to begin construction of the Playhouse Project
and throughout the period of such construction work until the
Completion Date, Developer shall maintain or cause to be main-
tained:
(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 policy 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 $1,000,000 per occur-
rence.
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5(�
(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 $5,000,000 per occurrence.
(d) Worker's Com ensation. Worker's Compensation and
Employer s Liability ' Insurance in compliance with
Florida Statutes 5440.
(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 providedfor -in this Article VII shall
berme fected 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 Pla -
house of Cancellation. All policies of insurance require by
this Art ic a 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. If Developer fails to maintain any
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=1
57
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 Developer's Obliga-
tions. No acceptance or approval o any insurance by DOSP or
Pray —house shall relieve or release Developer from any liability,
duty or obligation under this Agreement.
Section 7.6. Loss or Dama a Not To Terminate Rental or
This Lease. Any loss or damage by fire or other casualty to the
P ay ouse-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 been damaged 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. Property 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.
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. Subject 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
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i
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
Proceed s or Reconstruction. In the event Developer,
shall at any time authorize 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 of 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 insurance
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 notwithstanding, 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 -
10686
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 performany of he 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 hereunder), then Developer and Playhouse, 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 and to specifically
enforce Developer's and Playhouse's rights, and to enjoin DOSP.
Section 8.3. Playhouse's Default. In the event of the
failure of Playhouse to perform any o 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 -
i
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 8.5. Obligations, Ri hts and Remedies Cumu-
lative. The rights and remedies of the parties, whether provi e
at la, 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 Dischar a 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 -
1
61
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 Property 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 nonmaterial condemnation prior to the Completion Date,
then all of the obligations of the parties shall continue and
- 22 -
1
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 conditions 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 shall be 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 governed y 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 of 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 -
Section 11.5. Notice. Any notice or communication under
this Agreement shall be 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 Sayshore 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 -
G4
Section 11.6. Titles of Articles and Sections. The titles
of the several parts, Articles and Sections of th 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. Counterparts. 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 and 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. A rovals and Consents. Wherever in this
Agreement the approva or consent o any 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 emp oy 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 reference: 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 urnish 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 -
C.5
Section 11.15. 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 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 of to parties hereto that the
Play ouse ave 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 ap-ply 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 beeF
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
- 26 -
1
TABLE of EXHIBITS
A
- Department of State Premises
a
- 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
I
- Permitted Title Matters
10686
b7
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.
4
COCONUT INVESTMENTS, LTD., A
FLORIDA LIMITED PARTNERSHIP
By: COCCNUT.2pPORATION,
A FLO CORD N,
GEN T
.. By:
Werne , -?resident
ent
(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,
Ex utiv111-veo
Director'
COCONUT GROVE PLAYHOUSE, INC.,
a FLORIDA NOT -FOR -PROFIT COR-
PORATION
Y�
Press ent
- 27 -
10686
bU
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TRIPARTY AGREEMENT
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TRIPARTY AGREEMENT
EXHIBIT C,
ORIGINAL DOSP PARCEL
EXHIBIT b '�
DOSP ADDITIONAL PARCEL
• 1
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3110I7 2-1 Tn AWACUT PLAY> MOM FARM
7191T 2-2 Tat FIRST FL 00 RETAIL ARM
TU AW&CIINT PLAYNOM PDINOM is
that property an whicb is located
a building which is partly
two, storIgand partly one story.
TRt FIRST FLOOR RETAIL Am is
a portion of building which
is surrounded by the multi -story
Coconut Grove Playbouse. It is
the arse forserly occupied by
a part of the •Cato Loon•
Restaurants* and aatends to the'
back wall of the restaurant.
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TRIPARTY AGREEMENT
EXHIBIT &
GAUGE PARCEL
WMIBIT F
RETAILPARCEL
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TRIPAM R•GREDMT
EMISIT H
INFMTTROCTUn PARCEL
EXHIBIT I
permitted Title Matters*
The Senior Leases
10686
75
EXHIBIT E
TABLE OF CONTENTS
Page
Article
I - Gen: °il
!ros
of Lease of Premises ...............
1
Sect.t_,a
1 '
Lease of Premises to Tenant..........
1
Sect.`�.an
1
Term....
2
Sect '.e�n
1.3
Use ..................................
3
Section
1.4
alterations ..........................
5
Section
1.5
Title of Premises ....................
5
Section
1.6
Rental ...............................
5
Section
1.7
Tenant's -Records; Audits .............
6
Sect;.,,%n
1.9
Covenants for Payment of Taxes
`)y Tnnant..........................
6
Sect
Payment of Rental; Late Rental.......
6
Article
II - Transfers
and Subletting ........................
7
Section
2.1
Transfers ............................
7
Section
2.2
Space Leases.*,* .... *..6o ............
9
Section
2.3
Minority Participation in ownership..
10
Article
III - Mortgage
Financing; Rights of Mortgagee........
10
Section
3.1
Leasehold Mortgages ..................
10
Section
3.2
No Waiver of Tenant's Obligations
or Landlord's Rights ...............
16
Article
IV - Remedies
........................................
17
Section
4.1
Tenant's Default........ .............
17
Section
4.2
Landlord's Default ...................
18
Section
4.3
Unavoidable Delay ....................
18
Section
4.4
Obligations, Rights and Remedies
Cumulative .........................
19
Article V - Mechanics' Liens; Indemnification ................ 19
Section 5.1 Tenant to Discharge Mechanics' Liens 19
Section 5.2 Notice of Non -Responsibility......... 19
Article VI - Insurance ....................................... 20
Section 6.1 Insurance Coverage ................... 20
Section
6.2
Responsible Companies -
Blanket Insurance Permitted........
21
Section
6.3
Named Insureds; Notice to Landlord
and the Playhouse of Cancellation..
21
Section
6.4
Landlord May Procure Insurance
if Tenant Fails to Do So...........
21
Section
6.5
Insurance Does Not Waive Tenant's
Obligations .......................
22
Section
6.6
Loss or Damage Not to
Terminate Rental or This Lease.....
22
Section
6.7
Proof of Loss ........................
22
Section
6.8
Property Insurance Proceeds..........
22
Section
6.9
Covenant for Commencement
and Completion of Reconstruction...
23
Section
6.10
Waiver of Subrogation Rights.........
23
- i -
Article VII - Condemnation ................................... 23
Section 7.1 Entire Premises Taken
by23
Section 7.2 Partj-% 'Inking of Premises
by'o demnation.................... 24
Section 7.3 Taking Zor Temporary Use of
Leasehold Estate ................... 25
Article VIII - Arbitration ................................... 25
Section
8.1
Applicability ........................
25
Section
8.2
Arbitration Panel ....................
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.... .... o ........
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 ............. 4....... ,,.
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
1
SUBLEASE
THIS SUBLEASE ("Lease") is made this clay of
1989, by and between 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 ("Land-
lord") and COCONUT INVESTMENTS, LTD., a Florida limited partner-
ship ("Tenant").
W H E R E A S:
A. Landlord is the present holder of the tenant's lease-
hold under leases in pertain' parcels of real property located in
the City of Miami, County of Dade, 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
incorporated 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" attached *hereto.
(c) Conditions Precedent. The commencement of the Term of
this Lease shall be subject to and conditioned upon
"MOZ19.
the satisfaction of the following conditions prece-
dent:
(i) Tenant's obtaining appropriate financing for
the Playhouse Pro-iect nd completion of con-
struction of ;ae "P ..rate Development" in
accordance with the t_^rms 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 Developmeni-, DOSP shall be res-
ponsible_ _-so,: pay ivnt . all fees to any such
independent architect; and
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 f shall beorty-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.i.1n,
such notice of renewal shall not be effective, iL at
the expiration of the Original Term or the first
- 2 -
1
"79
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 + Occupancy. To the extent the Private Develop-
ment isusableby 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) throug'i`(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 be used for any of the following:
(i) amusement centers (as defined in 533.1 of
the Code of Dade County or its. successor
provision);
coinbox entertainment (pinball, video games,
moving pictures operated by coins);
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 -
(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 -
M
(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 a ter 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
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1O686
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 (10%) 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 Land lor o 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 (5t) 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 all 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.demand there or and shall be
10086
M
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 hereunder:
(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.
(iii) 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 .)r any meneral partner of Tenant.
- 7 -
10686
r
(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 Requirinq 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 its.disapproval within said
riit-aen (15) day period, the Transfer shall
automatically be deemed approved.
- 8 -
!
(iii) Upon Landlord's reasonable request, Tenant
shall furnish Landlord with a complete
statement, subscribed and sworn to, setting
forth she 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 !vatu.c;: described in Sections 2.1(a)(i),
2.l(a)(ii), 2.1(a)(iii), 2.1(a)(iv), 2.1(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 and agree to be subject to all conditions and
restrictions to which Tenant issubject;. 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. SRace Leases. Tenant shall provide to Land-
lord, on a quarterly- a is, 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 13pace
Tenant which Landlord may reasonably request in writing within
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10686
E40
seven (7) 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 space +?ase is approved. In the event Landlord
shall a i.7 •jo r ,,zd within thirty ( 30 ) days after submission
of Spat:.: Leas.) ind information, the same shall be con-
clusively deemed to have been approved by Landlord.
Section 7..3. Minority Participation in Ownership. Tenant
agrees that not less than ten percent (10%) of the 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
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 Mortoa4es.
(a) Initial Financing of Private Development. 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
Tn'titled 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 Refinancing, 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 Refii,•:ncing tipon Rental and Net
Income Available for Distriuucion for three (3) full
Rental Years next following consummation of such
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i
Refinancing. Refinancing shall only be permitted if
made at arms -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 sinilar transactions. Upon consummation of
any Refinane-I ng=, Tenant shall pay or cause to be paid
to Landlord fifteen 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 ees. Landlord hereby
agrees for the benefit of the holder of any Leasehold
Mortgage that during the continuance of any Leasehold
Mortgage until such time as the lien of any Leasehold
.Aortgaya has aeenr 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.
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.
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
0
&
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 prncer,- to be done in the perfor-
mance and .cf the covenants, con-
ditions and 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 occure Leasehold Mortgagee shall
have sixty (60) ?ys 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 as. -.ate
created hereby or commenced foreclosure or
other appropriate proceedings in the nature
12 -
IL0G8G
SE)
thereof, (b) Leasehold Mortgagee shall
diligently and continuously prosecute any
such proceedings to completion, (c) Lease-
hold Morrgagee shall have fully cured any
default `:; 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-
tions of s:he Tenant hereunder as and when
the 'same are due except any o= 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 L'Lie
provisions of this Lease; and no notice by
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190
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 thereof,
shall not require the consent of Landlord or
constitute a breach of any provision of or a
default under this Lease. Upon such fore-
closure, sa Lia or. conveyance, 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 III) 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 assignment 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.
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10686
91.
(ix) Should this Lease terminate by reason of any
default by Tenant hereunder, Landlord shall
give notice thereof to ?l Leasehold Mort-
gagees and Landlord shFAl, Ripon written
request by a Leasehold Ma tgagoe 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.' -n - . this Lease
shall effect a terminatiu►t or 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 (B) 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
- 15 -
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 shalom 30
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
3.1, 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 shall hav:? --he
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 in 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
aiiy liability for the non -observance or non-performance thereof,
or to require or provide for the subordination to the lien of
- 16 -
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 Rental when due and the
continuance of such failure for a period of
ten (10) consecutive days:.after written
notice thereof from Landlord to Tenant.
Failure - Performance of Other Covenants.
Failure of Tenant to perform' any 237 the
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.
(iii) 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 7, 9, 11 or 13 of the Bank-
ruptcy Code of 1978, 11 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) If 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 -
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 %1.10.1est
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-
withstanding, 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 Default 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
party's -erformance of the co,rennnts, provisions and agreements
of this ease 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
- 18 10686
written notice to the other party of the Unavoidable Delay and
its reasonably estimated duration.
Section 4.4. Obligations, Ri hts and Remedies Cumu-
lative. The rights and remedies of the parties, whether prove e
at law, 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':A interest in the Premises. Tenant shall, befo�:_, the
commenceiricnt 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 -
1
ARTICLE VI
INSURANCE
Section 6.1. Insurance Coverage. During the Term,
Tenant, at its sole cost an expense, shall maintain or cause to
be maintained:
(a) Property Insurance. Insurance on the Private Devel-
opment against ail 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 $5,000,000 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 -)f `.',abilit•;• Jnsurance 31!,'
be resolved through Arbitration pursuant to Articia
VIII. It is Landlord's intent that any liability
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10686
s7
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.
Worker's Com e��nsat��ion. Worker's Compensation and
Employer's Liability Insurance in compliance with
Florida Statutes 5440 or its replacement statute.
(e) Coyie�s. On the Commencement Date, Tenant shall fur-
nish 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 delivers: 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 1
be a f ted 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 V 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 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
Playhouse of Cancellation. All policies of insurance required bj
this Article shall indicate 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. IT Tenant failsto`�maintain any insurance
required by this 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 t)ayments, and Tenant shall reimburse
Landlord within ten (16i days Zollowing receipt of such
notification.
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10686
Section 6.5. Insurance Does Not Waive Tenant's Obliga-
tions. No acceptance or approval of any insurance by Landlord
ssaff relieve or release Tenant from any liability, duty or
obligation under this Lease.
S,!Clzion 6.6 Loss or Dama a Not To Terminate Rental or
This Laase. Any loss or damage by fire or other casualty to the
Private Development shall not operate to terminate this Lease or
to rellave 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
5.6, 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
senten-- shall survive termination of this Lease.
Section 6.7. Proof of Loss. Whenever any part of the
Private Development shall have been 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
subsection 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-
tioh. All insurance proceeds shall be used, 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-
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10686
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 'he completion of the Reconstruction
Work shall c 0.rl to Tcanant and snail be considered
Operating incctae.
(c) Leasehold Mortgagees May Have Benefit of Insurance
Proceeds for Reconstruction. In the event Tenant
shall at any time authorize 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. Sub3ect to the provisions 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, 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 by Condemnation► In
the event that the whole of 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
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It
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: Thor.•-: shall be paid all axpenses, 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 -t 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
voarate awards are obtained, such. balance shall be paid to
Tenant 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 ot the Premises s--h-a-r=e 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
required 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
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IL0686
io(
1
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 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 be taken
for -temporary uses or the whole or arty 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:
( i ) if any portion -of �6ffiy-'such award or payment on account
of a taking for` ti[aporary 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 Lase 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 est-a"Flished 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 thia 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
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10-2-
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 s written, ce(pl,est. so to do
by the other party, then such »art•; :-.tar,
, request the
President of the Florida Chapter the li:tic:x:� 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 t e Ar *.;�`���el shall be con-
ducted, based upon and in accords►i►... 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 Dispute. The Arbitrators
appointed by Land lor an Tenant shall 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 (S) 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 ArbitruL'iotl Panel shall be final, binding and non -appealable.
If no determination is rendered within such time, unless the
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10686'`o3
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 8.5. Cost of Arbitration. Each party shall pay
the fees and expenses of the member 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 pang 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 regarif
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.
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10686
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. No Partnershie or Joint Venture. Nothing
contained in this Lease is intended or shall be 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 Stamps. This Lease,
or a memorandum or short form hereof 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 shall be governed by the laws of the State of
Florida. 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 Landlord 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 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 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 -
with a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Auentel
1221 Brickell Avenue
Miami, Florida 33131
Attn: Matthew B. Gorson, Esq.;
(b) In the cage 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. Esto�ell Certificates. Landlord and Tenant
shall, at any time and room time to -Fir -me, 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:. . (.i ) 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
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1
10G
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; (i.ii) 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. If 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 and 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. Counterparts. 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 with 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 will enter :i ::.agreements with
the Tenant and any such Space Tenant confirming such non -
disturbance agreement. Any such confirmatory Agreement may be
- 30 -
10686
� 07
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 -
,riding 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 E ual OpportunitX.
Tenant will use affirmative efforts to seek and otter 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- , a=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 are 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 incorporate here n by this reference.
Section 10.16. Interpretation. Reference to any article,
section, paragraph, exhibit, or s ipart 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 10.18. 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 Agreemer.}. This T.�zne- the Tri-Party
Agreement, and all of the other documents referred to therein and
herein together contain the entire agreement between the parties
- 31 -
10686 � 08
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 is.,.i,n 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.
COCONUT INVESTMENTS, LTD., a
Florida limited partnership
(Corporate Seal]
ALA es :
By: Coconut
Florida
Gener
By: AA
eth Wern
Corporation a
cor ion,
rtner
Press ent
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. <at_s�_ - rM , � j '_ -, - - -,
J n J. ulv a,
Ex cutive Director
- 32 -
10686
.�1
EXHIBIT "D"
Defined Terms
"Acceptuo.Le 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 tr.:.=ning 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 & 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 ansy bo
furnished by Tenant on the Premises for the non-exclusive general
- 1 -
10686:
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 (150%) percent of the
prime rate of interest, as announced from time to time by
Southeast Bank. 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;
- 2 -
1068E � I Z
(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.
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10686,
113
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 i,efau2t" 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, if 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 -
10686
o4
"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 b(+ del- +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 -
"Owner" means any person or entity which owns, directly or
indirectly, legally or beneficially, one percent (li) 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 (It) or more of any other form of ownership it:�aris t of
the Tenant. The term "Owner" shall not include any m tii:i 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 & Exchange Commission (or its
successor) or is publicly traded over the counter.
"Partial Taking" shall have the meaning ascribed to it in
Section 7.2.
"Permitted Transfers" means any Transfer pe�.cnitf-.d <<nder
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 9 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 arms -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
Mr-M
10686 1
� 60
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 Board 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 a Fist 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 by 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 -
10686 07
"Tri-Party Agreement" has the meaning ascribed to it in the
i
Recitals.
1 "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).
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1U686
lie
EXHIBIT E
Permitted Title Matters*
The Senior Leases
10686
1�9
EXHBIT "F"
MINORITY PA,RTICIPkTION
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 market and its community.
Therefore, the participation of minority businesses,
organizations, and individuals including Black, Mispanic and
other groups, in the development process is a key component of
the Playhousa ;.eatar.
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
ainsure gull compliance with the Minority and Woaen Business
ffairs and Procurement Program. This ca=itment includes:
Developrent of Team participation and equity investment
opportunities once Coconut Investments, Ltd. is selected and
the financing program is•approvad..
Fostering of Business Development for Minority Businesses
and Individuals.
Commitment to professional Service Contracts in the various
phases of the project.
Cor.titment to Substantial Minority Employment during
construction.
Commitment to Er:ployMent of Minorities in Manaqanent
Positions.
MINORITY EQUITY AND INVESTMENT PROG"X
Coconut Investments, Ltd* proposes to arrange for an
investment opportunity in Playhouse Center development for
members, of the Miami minority investment community in accordance
with the following Preliminary sums:
4_nershilp. 20* limited partner (or equivalent) in Playhouse
Center with the remaining lot owned by Coconut investments,
Ltd. Subject to the dilutive effects of financing the exact
form of ownership is dapsndant upon the final financing
program.
10f 84��
120
204 Fro rat& distribution (net of financing
charges,
reeoupment of financings, Development Management
and Contract Management Fees, and out of pocket expenses of
the Developer and similar charges) of the following:
Net Cash Flow
Tax Benefits
Net sale/Rafinancinq Proceeds
InveegIn+annt. The minority equity investor would invest their
pro rata 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.
Investor croup. A balanced group of Hispanic and Slack
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 specifics of the Minority
Investment program.
PROFESSIONAL SERVICES CONTRACTS,
Coconut Invest:rents, Ltd. again restates its commitment to
provide maximum opportunity to engage minority personal service
firr..s. The following minority firm has been retained:
Jesse McCrary Jr. attorney at law has become a r,embar of the
development team, as its community, legal, and Minority
Affairs advisor. Fart 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 devolopment team, and to establish a local
account with a minority owned banking establishment.
Can_ struetion contract.
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.
1 OG861
12-\
Y
Establish bidding procedures which are fair and non-
discriminatory
Zncourage the purchase of materials, supplies, and equipment
from minority owned businesses.
Assist Minorities in securing bonding through cooperation
with a community based business assistance program
OPERATIONS AND MANAGEMENT.
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 a$ to tenant locations. The leasing
strategy will provide technical assistance for store layout,
design, and marketinq. In marketing the project, a public
relations campaign will be implemented to provide awareness of
business opportunities in the project.
1068 .
� 22-
I'SJ OEC 2G A11 11: 33
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. 10686
X X X
Inthe ......................................... Court,
was published In said newspaper In the Issues of
December 21, 1989
Afflanl 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
published in said Dade County, Florida, each day (except
Saturday, Sunday and Legal Holidays) and has been entered as
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
affiant fu says that she has neither paid nor promised any
parson, rm or corporation any discount, rebate, commission
or reIL r the purpose of securing this advertisement for
publics o in the said ewspaper.
sari ,
.� Sworn to ?96 sybscrffied before me this
p
ciyof , ..... P.x. , A.D. 19. . 8 9..
,'TletJac
Notary PuPHan
3Yat f da at Large
C My CommissonSPARP►ps%,"1991.
MR 114A
41T.Y1
OF MIAMI j FLON110l11
LEGAL Nbfvft`'
All Interested 061`800e will take notitfil, Ih t'6n the' 14th (lily, nt•
December, logo, the City Commission Of MIAMI, 1404da, adopted:
the following titled Ordinances:
ORDINANCE NO.10bre r
AN EMERGENCY ORDINANCE ESTABLiSHINf3 A NEW`SPECIA
REVENUE FUND ENTITLED:''GRAND PRIX'lW; APPROPRI•
ATING FUNDS FOR -ITS OPERATION IN THEAmwiiT OF
$760000 FROM THE: STATE OF FLORIDA DEPARTMENT OF
COI MkACE; DIVISION OF ECONOMIC 'DEVELOPMENT; ,
CONTAINING A.MEPEALER PROVISION -AND SEVERAfjIL11W
CLAUSE.
ORDINANCE NO low
AN ORDINANCE AMENDING THE FUTURE LAND USE MAP .00
LOCATED FOR THE THREE -BLOCK "AREA'9oUNUEU`f3T,'.
NORTHWEST.'16TH AND 17TH STREETS, BETWEEN NORTH.,n ,
WEST 28TH AND 30TH AVENUES, MIAMI, FLORIDA (MORE PAR-
TICULARLY DESCRIBED HEREIN), BY CHANGING -THE DESIG-
NATION OF THE SUBJECT. PROPERTY FROM 'DUPLEX REST•
DENTIAL 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
1989.2600, FOR PROPERTY LOCATED AT APPROXIMATELY
833.899 NORTHWEST 4TH STREET, 430 AND'490 NORTHWEST
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.10662
AN ORDINANCE AMENDING THE ZONING ATLAS OF ORDI-
NANCE NO.9500, THE ZONING ORDINANCE OF. THE CITY.OF.;
MIAMI, FLORIDA, BY CHANGING THE ZONING CLASSIFICATION 4
OF 401-449'NORTHWEST 9TH AVENUE, 833.899 NORTHWEST.
4TH STREET AND APPROXIMATELY430AND 490.NORTHWEST
SOUTH.RIVER DRIVE, MIAMI, FLORIDA (MORE PARTICULARLY '.
DESCRIBED HEREIN), FROM RG•215 GENERAL°'RESIDENTIAL
TO RG•315 GENERAL RESIDENTIAL; BY MAKING FINDINGS; AND
BY MAKING ALL THE NECESSARY CHANGES ON PAGE NO, 3b
OF SAID ZONING ATLAS MADE A PART,OF ORDINANCE,NO.
95W BY REFERENCE'AND DESCRIPTION IN. ARTICLE 3 ; SEC•
TION 300, THEREOF; CONTAINING A REPEALER PROVISION
AND A SEVERABILITY CLAUSE.
ORDINANCE NO.10683
AN ORDINANCE AMENDING THE FUTURE. LAND. USE MAP OF
ORDINANCE NO. 10544, AS AMENDED, THE MIAMI COMPRE-
HENSIVE NEIGHBORHOOD PLAN 1989.2000FOR-PROPERTY
LOCATED AT APPROXIMATELY 146.170 N.W.`35TH STREET,
MIAMI, FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN),
BY CHANGING THE DESIGNATION OF THE SUBJECT, PROP-
ERTY FROM MULTIFAMILY 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, SEVERASILITY CLAUSE AND
EFFECTIVE DATE.
ORDINANCE NO.10684
AN ORDINANCE AMENDING THE ZONING ATLAS OF ORDI
NANCE NO. 9500, THE ZONING ORDINANCE OF THE CITY OF
MIAMI, FLORIDA, BY CHANGING THE ZONING CLASSIFICATION
OF APPROXIMATELY145.170 NORTHWEST36TH STREET, MIAMI,
FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN) FROM
RG•215 GENERAL RESIDENTIAL TO CG•117 GENERAL COMMER•
CIAL BY MAKING FINDINGS; AND BY MAKING ALL THENEC.;
ESSARY CHANGES ON PAGE NO. 21 OF SAID ZONING ATLAS"
MADE A PART OF ORDINANCE NO.9500 BY REFERENCE AND
DESCRIPTION IN ARTICLE 3, SECTION 300; THEREOF; '
CONTAINING A REPEALER PROVISION AND A SEVERABILITY
CLAUSE. 1 .
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.10685
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 3500,1MAIN HIGHWAY, MIAMI,
FLORIDA (MORE PARTICULARLY DESCRIBED HEREIN), FROM
SPI.2 COCONUT GROVE CENTRAL COMMERCIAL DISTRICT AND
RS•212 ONE FAMILY DETACHED RESIDENTIAL TO GU OOyERN•
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. 9560 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 Clark, 3500 Pan American Drive, Miami, Florida; Monday
through Friday, excluding holidays, between the howl of, 8:00 a.m.
and 5:00 p.m.
- µ
(6235) -
MATTY HIRAI
a CITY CLERK
W MIAMI, FLORIDA
12l21 89 4122123