HomeMy WebLinkAboutAttachment 2ATTACHMENT 2
5/21/09
FIRST AMENDMENT TO LEASE AGREEMENT
(MIAMI SCIENCE MUSEUM PROJECT)
THIS FIRST AMENDMENT TO LEASE AGREEMENT (MIAMI SCIENCE
MUSEUM PROJECT) ("First Amendment") is made and entered into this day of
'2009, by and between the CITY OF MIAMI, a municipal corporation of the
State of Florida (the "City"), and MUSEUM OF SCIENCE, INC., a Florida not-for-profit
corporation (the "Museum").
WITNESSETH:
WHEREAS, on December 11, 2008, the City Commission of the City passed and adopted
Resolution No. R08-0707, approving the terms of, and authorizing the City Manager to execute,
a Lease Agreement between the City and the Museum to lease to the Museum approximately
four (4) acres of land located in Bicentennial Park (a/k/a "Museum Park"), more particularly
described in Exhibit A attached hereto and incorporated herein (the "MSM Site"), for the
development, construction, management and operation of a first class accredited science
museum; and
WHEREAS, the City and the Museum entered into that certain Lease Agreement (Miami
Science Museum Project) dated as of April 6, 2009 (the "Lease"), pursuant to which the Museum
leases the MSM Site from the City, for an initial term of thirty (30) years, with automatic
renewal terms and on the other terms and conditions set forth therein; and
WHEREAS, the City and the Museum desire to modify certain provisions of the Lease,
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the
Museum hereby agree that the foregoing recitals are true and correct, and further agree as
follows:
1. Definitions. All capitalized terms used in this First Amendment shall have the
definitions ascribed to such terms in the Lease, unless defined or amended in this First
Amendment. The term "Lease", as used in the Lease, shall be and is hereby amended to refer to
the Lease, as amended hereby.
2. Improvements. The City and the Museum hereby agree to modify the maximum
height limitation imposed on the Improvements under the Lease. Accordingly, the last sentence
of the definition of "Improvements" in Section 1.1(11) of the Lease is hereby deleted in its
entirety and replaced with the following: The Improvements shall not exceed a height of
seventy (70) feet measured from the finished level of the plaza, with vertical penetration of the
height limit above the 70' envelope for (a) a floating roof of approximately ten (10) feet of
additional height covering not more than 30% of the roof.' area, and (b) other penetrations not
exceeding forty (40) feet of additional height and not exceeding 10% of the roof area pursuant to
the Museum Park Miami Museum Area Design Guidelines dated December 2006 and provided
by Cooper Robertson.
V2 MIA 180, 509, 809
3. FDOT Area. Pursuant to the terms of Section 3.6 of the Lease, the City, the
Museum and MAM presently intend to locate the access road and vehicular turnaround for the
Improvements within the MAM Site and the MSM Site.
4. Common Areas and Parking. The City and the Museum hereby agree as follows:
(a) The minimum number of parking ,spaces in the Parking Facility shall be
reduced from 480 parking spaces to 440 parking spaces., All references in Sections 3.5, 3.6(b)
and 3.7 of the Lease to the minimum number of parking spaces in the Parking Facility are
hereby modified accordingly.
(b) Section 3.5 of the Lease requires the Museum to provide 300 parking
spaces in the event the MAM Lease is terminated prior to the completion of construction of the
MSM Museum. The Parties agree that the 300 parking spaces will be provided in accordance
with Section 3.3 of the Development Agreement.
(c) If the City leases the additional land to the Museum from the MAM Site
pursuant to paragraph 4(b) above, any such additional land shall be excluded from the
obligation of the City under Article XXV of the Lease to maintain and operate the entire MAM
Site as open green park space as part of the Park Component.
5. Construction Staging and Parking Easement. The City and Museum hereby agree
that Exhibit D-2 to the Leases (depicting the location of the Construction Staging and Parking
Easement) is hereby deleted in its entirety and replaced with revised Exhibit D-2 attached hereto
showing the current agreed upon location of the Construction Staging and Parking Easement.
All references in the Lease to Exhibit D-2 shall be modified to mean and refer to revised Exhibit
D-2 attached to this First Amendment. Since Museum Drive access may not always be available
during construction, the City further agrees to provide access to the Museum's construction sites
through other areas of the Park, in the event such access is needed by the Museum and to the
extent possible, provided such access does not interfere with the construction of the City parking
garage.
6. Bond Covenants.
(a) A new definition is hereby added to Section 1. 1, as follows:
OJj) Homeland Defense/Neighborhood Capital Improvement Projects
Bond Program" shall mean the City's "Homeland Defense/Neighborhood
Capital Improvement Projects Bond Program" approved by a referendum
of City voters on November 13, 2001 for the City's issuance of $255
million in limited ad valorem tax bonds for homeland security,
neighborhood improvements, capital projects and infrastructure
improvements, of which the City allocated a total of $3,500,000 to the
Museum for its portion of the Museum Park Project.
(b) Article IV is amended to add a new Section 4.5 as follows:
Section 4.5 Continuous Duty to Comply with Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program and
v2 MIA 180, 509,809
Building Better Communities General Obligation Bond Program. The
Parties acknowledge that the Museum has entered into certain grant and
funding agreements with the City regarding the Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program and
with the County regarding the Building Better Communities GOB
Agreements that require continuous compliance with U.S. Internal
Revenue Code requirements, as amended from time to time, for uses of
proceeds of tax-exempt limited ad valorem and general obligation bond
financings. If for any reason the Museum, any Leasehold Mortgagee, or
any new entity for transfer of the Museum Leased Premises experience(s)
any difficulty beyond the reasonable control of the Museum in fulfilling
such continuing compliance requirements, the Parties shall meet to address
the problems and use good faith diligent efforts to resolve any issues and
make appropriate adjustments in order to maintain the tax-exempt status of
the respective City Homeland Defense/Neighborhood Capital
Improvement Projects Bond Program and County Building Better
Communities General Obligation Bond Program. "The Museum
acknowledges, agrees, and covenants that no tax-exempt bond proceeds
shall be used for the planning, design, construction, operation, or
management of any of the commercial use areas, including but not limited
to any areas to be used for the commercial components of the Ancillary
Uses. The Museum further acknowledges, agrees, and covenants that the
future Management Agreement shall contain continuing tax-exempt bond
compliance covenants."
(c) Section 16. 1., Assignment and Subletting of Leased Premises, is hereby
amended as follows:
The last sentence of the first paragraph is amended to read as follows:
"For purposes of this Section, any change (a) in the status of the Museum
so that it shall cease to be a not-for-profit entity under Section 501(c)(3) of
the Internal Revenue Code, and/or (b) in the uses of the Leased Premises
so that such use(s) will no longer comply with the City's Homeland
Defense/Neighborhood Capital Improvement Projects Bond Program
and/or the County's Building Better Communities General Obligation
Bond Program compliance requirements, shall constitute an unauthorized
Transfer."
The last provision of last sentence of the second paragraph is amended to
read as follows: "(d) the Museum has provided to the City, for its review
and approval, not less than fifteen (15) days in advance of the actual
transfer, such documents relating to the Transfer as the City may
reasonably request including, but not limited to, the relevant experience of
the new entity, makeup of the new entity, evidence of not-for-profit status
under Section 501(c)(3) of the Internal Revenue Code of the new entity,
and evidence that the uses of the Leased Premises by the new entity will
be in compliance with the City's Homeland Defense/Neighborhood
Capital Improvement Projects Bond Program and/or the County's
v2 MIA 980, 509, 809
Building Better Communities General Obligation Bond Program
compliance requirements.
(d) Section 17.3, Rights of Leasehold Mortgagees. A new provision (v) is
hereby added to subsection (e) to read as follows:
(iv) Notwithstanding provision (iii) above regarding designation as a
Section 501(c)(3) not-for-profit corporation under the Internal Revenue
Code, as amended, and Section 17.3(d) above, any such lessee under such
new lease shall become automatically responsible for complying with the
City's Homeland Defense/Neighborhood Capital Improvement Projects
Bond Program and/or the County's Building Better Communities General
Obligation Bond Program compliance requirements.
(e) Section 20.1 Events of Default — Museum. A new provision (v) is
hereby added to subsection (a) to read as follows:
(v) The failure of the Museum, a Leasehold Mortgagee or its designee, or
any new lessee to comply with the use requirements for the Leased
Premises under the City's Homeland Defense/Neighborhood Capital
Improvement Projects Bond Program and/or the County's Building Better
Communities General Obligation Bond Program compliance
requirements.
7. Green Initiatives. The last sentence of Section 5.7 is hereby deleted in its entirety
and replaced with the following: "The Museum shall achieve LEED Silver certification for the
MSM Museum."
8. Miscellaneous.
(a) This First Amendment shall be construed and governed in accordance with
the laws of the State of Florida.
(b) This First Amendment may be executed in any number of counterparts
and by the separate parties hereto in separate counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
(c) Each party hereby represents and warrants to the other parry that (i) it has
the full right and authority to enter into this First Amendment, and (ii) this First Amendment is
a binding and valid document enforceable in accordance with its terms.
(d) This First Amendment shall be deemed a part of, but shall take precedence
over and supersede any provisions to the contrary contained in the Lease. Except as modified
hereby, all of the provisions of the Lease, which are not in conflict with the terms of this First
Amendment, shall remain in full force and effect, and, as modified hereby, the Lease is hereby
ratified and confirmed in all respects.
v2 MIA 180, 509, 809
(e) This First Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of the
day and year first above written.
ATTEST:
M.
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM
AND CORRECTNESS:
THE CITY OF MIAMI, a municipal
corporation. of the State of Florida
Pedro G. Hernandez
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS
By: By:
Julie O. Bru LeeAnn Brehm, Risk Management
City Attorney Administrator
WITNESSES: MUSEUM OF SCIENCE, INC., a Florida
not-for-profit corporation
By:
Print Name: Print Name:
Title: Title:
Print Name:
Title:
v2 MIA 180, 509,809
Exhibit A
MSM Site
E%HIBIT A
SHEET 1 OF 2
LEGAL DESCRIPTION
PORTIONS OF TRACT A, "BICENTENNIAL PARK," AS
RECORDED IN PLAT BOOK 140 AT PAGE 50, OF THE
PUBLIC RECORDS OF MIAMI—DADE COUNTY, FLORIDA, AND
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE NORTHEAST CORNER OF SAID TRACT
A: THENCE ALONG THE NORTH LINE OF SAID TRACT A
S87'42'09"W FOR 372.15 FEET; THENCE ALONG THE
NORTHERLY LINE OF SAID TRACT A S64'34'15"W FOR
250.56 FEET TO THE POINT OF BEGINNING OF A PARCEL
OF LAND HEREINAFTER DESCRIBED:
THENCE S25'25; 45"E FOR 300.00 FEET; THENCE
S64'34'15"W FOR 90.00 FEET; THENCE S54'35'23"W FOR
115.39 FEET; THENCE S64'34'15"W FOR 247.15 FEET;
THENCE N80'05'29"W FOR 138.92 FEET; THENCE
N80'04'38"W FOR 93.39 FEET; THENCE N80'02'43"W FOR
81.74 FEET TO A POINT ON THE WEST LINE OF SAID
TRACT A, SAID POINT BEING THE POINT OF NON—TANGENT
CURVATURE OF A CIRCULAR CURVE, CONCAVE TO THE
SOUTHEAST, SAID CURVE HAVING A RADIUS OF 1,500
FEET, AND TO WHICH POINT A RADIAL LINE BEARS
N78'58'41 "W; THENCE NORTHERLY ALONG THE WEST LINE
OF SAID TRACT A AND ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 6'28'20" AN ARC DISTANCE OF
169.44 FEET TO A POINT OF COMPOUND CURVATURE OF
A CIRCULAR CURVE, CONCAVE TO THE SOUTHEAST, SAID
CURVE HAVING A RADIUS OF 25.00 FEET; THENCE
NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF
SAID TRACT A AND ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 47'04'10" AN ARC DISTANCE OF
20.54 FEET TO A POINT OF TANGENCY ON THE
NORTHERLY LINE OF SAID TRACT A; THENCE ALONG THE
NORTHERLY LINE OF SAID TRACT A N64'34'15"E FOR
580.47 FEET TO THE POINT OF BEGINING.
SAID LANDS BEING SITUATED WITHIN THE CITY OF MIAMI,
MIAMI—DADE COUNTY, FLORIDA, AND CONTAINING 4.42
ACRES, 192,330 SQUARE FEET, MORE OR LESS.
SEE SHEET 2 OF 2 FOR SKETCH AND SURVEYOR'S NOTES. THIS SKETCH DOES NOT
SKETCH TO ACCOMPANY LEGAL DESCRIPTION REPRESENT A BOUNDARY SURVEY
CERTIFIED TO: 1 HEREBY CERTIFY THAT THIS SKETCH MEETS THE
MINIMUM TECHNICAL STANDARDS AS SET FORTH BY
THE FLORIDA BOARD Of PROFESSIONAL SURVEYORS
MIAMI SCIENCE MUSEUM
AND MAPPERS IN CHAPTER 81G17—B, FLORIDA
ADMINISTRATIVE CODE PURSUANT TO SECTION
472.027, FLORIDA STATUTES.
DATED THIS 12 DAY OF MARCH 2009 A.D.
SAMUEL M. RSCHBEIN
MILLER' L E G G PROFESSIONAL SURVEYOR AND MAPPER
STATE OF FLORIDA REGISTRATION TNo.HE 3567
NOT SEAL
F A FLORIDATHE SIGNATURE SED AND THE ORI Mj
RAISED SEAL OF A FLOLICENSED SURVEYOR AND Mi
MTC R E V I S 1 0 N S wk aac. Miaml•Dade Office: 10418 N.W 31st Terrace CERTIFICATE OF AUTHORIZATION: LB5380
Miami, Florida • 33172-1200
305-599.6381• Fax; 305-699-2797 vxoxcr na Z xo.
DRAWN BY: S.T.H. CHECKED BY: S.M.F. www.milledegp.com 08-00253 ALL EASEMEI
\PROJW73\2008\08-00253 — MWU SCIENCE MUSEUM\ORAWINCS\SUR"NO\0e-00253—EASEMENTS.DWO 4/1/09 by SNN1
1 of 2
SHEET 2 OF 2
EXHIBIT A
P.O.C.
NE CORNER EAST LINE TRACT "A"
TRACT "A' P.B. 14D, PG. 50, D.C.R:
P.B. 140, PG.
50, D.C.R. f
NORTH BOUNDARY
TRACT "A" o t
P.B. 140, PG. 50, iC N
D.C.R. r
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MUSEUM
0i0 tea' TRACT A
2525% i°N BICENTENNIAL PARK
PSI.140 PG. 50
P.O.B.
SURVEYORS NOTES: SIJI
1) NOT VALID WITHOUT THE SIGNATURE AND ` 192,330 sq. ft.
ORIGINAL RAISED SEAL OF A FLORIDA 4.42 acres
PROFESSIONAL SURVEYOR AND MAPPER. ` \\
,y er
2) DATE PREPARED: 12 MARCH 2009, VNI.
(8-2) ��
3) THIS SKETCH TO ACCOMPANY LEGAL
WILISELIM
DESCRIPTION CONSISTS OF SHEETS 1 THROUGH ���1` �` N N Do
2, AND NO PORTION IS VALID WITHOUT THE ',� m I d n
REST. , izi
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e of Authorization L.B. 6680 THIS SKETCH DOES NOT REPRESENT A BOUNDARY SURVEY
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MIAMI SCMNCE MUSEUM OB 00253 ALL PARCELS
2 of 2
( IN FEET)
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28 20" �3 WEST LINE TRACT "A"
1
INCH = 200 FEET
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IN
P.O.B.
POINT OF BEGINING
P.O.C.
POINT OF COMMENCEMENT
P.B.
PLAT BOOK
PG.
PAGE
D.C.R.
DADE COUNTY RECORDS
MILLER�LEGG
MIamFDedo 019co:1041 a N.W 3131 Tor=
Mlad, Fblkla • 33172.1200
30559943M1 • Fat 305-599.2797
www.mllbAepp.com
e of Authorization L.B. 6680 THIS SKETCH DOES NOT REPRESENT A BOUNDARY SURVEY
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EXHIBIT D-2
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