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Filing # 83879888 E-Filed 01/24/2019 08:12:11 PM. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAME-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO, 2018-030887-CA-08 CHALKS AIRLINE, INC., a Florida corporation, Plaintiff, MIAMI SPORTS AND EXHIBITION, AUTHORITY, an independent and autonomous agency and instrumentality of the City of Miami, Florida; and CITY OF MIAMI, FLORIDA, a municipality of the State of Florida, Defendants, / PLAINTIFF CHALKS AIRLINE, INC MOTION FOR SUMMARY JUDGMENT AS TO COUNTI Pursuant to Florida Rules of Civil Procedure 1.510, Plaintiff Chalks Airline, Inc. (“Chalks”) hereby moves for Summary Judgment as to Count | of the Complaint since there is no genuine issue as to any material fact and Plaintiff is entitled to a judgment as a matter of law. STATEMENT OF UNDISPUTED FACTS 1. On July 29, 2014, Chalks and MSEA entered into an Amended and Restated Air Terminal Facility Sublease (the “Lease”). See Exhibit 1, Affidavit of Ignacio J. Vega-Penichet dated January 24, 2019 (“Vega Af”) at J 2; see also id. at Exhibit A, Lease. 2, The real property subject to the Lease consists of approximately 2.9 acres of land on Watson Island (“Miami Seaplane Base Property”) that comprises the site on which Chalks established its seaplane base Public-use Airport. See Lease at §§ 1.11.1, The Lease further provides that Chalks is the owner of the buildings, structures, and installations on the Miami Seaplane Base Property, including the existing Terminal, the Government Service Building, the Storage Building, adjacent seaplane ramp, taxiways, apron, tie down areas, and storage area (“Miami Seaplane Base Facility”). See id. 3. The Lease provides Chalks the right to: (1) continue to hold possession of the Miami Seaplane Base Property, (2) continue to hold possession and ownership of the Miami Seaplane Base facility, (3) continue to operate its existing seaplane base business as a Public-use Airport, and (4) refurbish and/or build out a new seaplane base terminal and to develop 100,000 square feet of additional ancillary commercial space. See Lease at §§ 1.11.1 and 3. 4, Section 5.3 of the Lease provides that Tenant shall submit preliminary plans for any Improvements to be constructed, refurbished and/or relocated on the Property to Landlord for written approval (not to be unreasonably withheld, conditioned, or delayed), within six (6) months from the Execution Date. Upon receipt of the Landlord’s written approval for the plans prepared by Tenant, Tenant shall promptly submit such plans to the appropriate City Departments (City Building Department, ties Dept., Fire/EMS, and Planning and Zoning Department) (Emphasis added). Thus, the Lease expressly requires that: (1) MSEA provide written approval of Chalks’ preliminary plans, (2) that MSEA not unreasonably withhold, condition, or delay providing Chalks with written approval of its plans, and (3) that Chalks obtain written approval from MSEA before submitting its plans to the appropriate City departments, expressly including, but not limited to the Planning and Zoning Department (“PZAB”) 5. On July 27, 2016, Chalks submitted plans for the buildout of their entire single- phased project on the Miami Seaplane Base Property in advance of the August 2, 2016 MSEA meeting, Vega Aff. at $6; see also id. at Exhibit B, July 27, 2016 Single-Phased Plans. Despite Chalks’ request, MSEA did not vote on Chalks’ plans at the August 2, 2016 MSEA meeting Vega Aff. at 6. On September 1, 2016, the MSEA Board denied Chalks’ proposed single- phased plans in part based on the plans’ hotel component, Mr. Brian May, a representative for Flagstone Properties (“Flagstone”), a neighboring developer on Watson Island, stated that Flagstone opposed Chalks’ proposed plans for the hotel because it would be a “competitive product” to Flagstone’s intended hotels and stated that Flagstone had previously communicated its concerns to the City. 1d; see also id. at Exhibit C, Sept. 1,2016 MSEA Board Minutes, id. at Exhibit D, Sept. 1, 2016 MSEA Meeting Audio Recording." 6 On May 2, 2017, after several meetings between Chalks and the City Attomey’s office and City staff, at the express recommendation of the City Attorney Victoria Mendez, Chalks submitted a phased project to the MSEA Board requesting approval of a “Preliminary Pre-Development Project ” for infrastructure, site preparation, and refurbishment of existing facilities and a Phase One of a “Preliminary Basic Project” for the construction of a new Terminal Facility in the amount of approximately 60,000 square feet, comprised of the 18,948.6 square feet of food and liquor service areas that the facility could have built as found by Judge Cueto’s Summary Judgment Order and core terminal service areas (the “Phase One Plans”) Vega Aff. at { 7, see also id. at Exhibit E, May, 2, 2017 Pre-Development Project and Phase One Plans. This submission was made with the understanding that subsequent Preliminary Basic Project plans for the remaining approximately 81,0514 square feet of the “Commercial Facilities” provided for in the Lease would follow in one or more phases. Vega Aff. at {7 ' At the MSEA Board meeting, MSEA Chairman, Mayor Tomas Regalado, conceded that the “MSEA board needs to approve the Sea Plane Base plans before they are presented to the Planning and Zoning Department.” Vega Aff. at Exhibit C at 3.