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HomeMy WebLinkAboutLease AgreementLEASE AGREEMENT (MIAMI ART MUSEUM PROJECT) BETWEEN THE CITY OF MIAMI AND MIAMI ART MUSEUM OF DADE COUNTY ASSOCIATION, INC. DATED , 2008 MLA 180,105, 011 v15 12-3-08 TABLE OF CONTENTS Page Article I DEFINITIONS 2 Section 1.1 Defined Terms; Singular, Plural and Gender 2 Section 1.2 Incorporation of Exhibits 12 Article II LEASED PREMISES AND TERM 13 Section 2.1 Description of Leased Premises; Title 13 Section 2.2 Term of Lease 13 Section 2.3 Conditions; Right to Terminate 14 Section 2.4 Signage During Construction 16 Section 2.5 Museum Park Events 16 Article III EASEMENTS, PARKING AND SIGNAGE 17 Section 3.1 Easements 17 Section 3.2 Limitations on Easement Rights 18 Section 3.3 Easement for Development of Other Areas in Museum Park 19 Section 3.4 Certain Utility Easements 21 Section 3.5 Common Areas and Parking 21 Section 3.6 FDOT Area 22 Section 3.7 FDOT Triangular Area 23 Article IV PURPOSE OF USE AND OCCUPANCY 23 Section 4.1 Use of Leased Premises 23 Section 4.2 General Operations 24 Section 4.3 Continuous Duty to Operate 25 Section 4.4 Community Benefits 25 Article V INFRASTRUCTURE; SERVICES; REPAIRS 25 Section 5.1 Infrastructure Improvements 25 Section 5.2 Utilities 25 Section 5.3 Services 25 Section 5.4 Maintenance and Repairs 26 Section 5.5 Preventative Maintenance and Services 26 Section 5.6 Landscaping 27 Section 5.7 Green Initiatives 28 Section 5.8 Management Agreement Terms 28 Article VI CONSIDERATION 28 Section 6.1 Base Rent 28 Section 6.2 Additional Rent 28 Section 6.3 Interest on Late Payments 28 Section 6.4 Place of Payment 29 Article VII IMPOSITIONS 29 i MIA 180,105,011v15 12-3-08 Page Article VIII HAZARDOUS MATERIALS 29 Section 8.1 Handling of Hazardous Materials 29 Section 8.2 Indemnification 30 Section 8.3 Notice Obligations 30 Section 8.4 Environmental Tests and Audits 31 Section 8.5 Excluded Environmental Conditions 31 Section 8.6 Pre -Existing Conditions 32 Section 8.7 Survival of Museum's Obligations 32 Article IX RECORDS AND AUDITING 32 Section 9.1 Records Of Sales 32 Section 9.2 Audit 33 Section 9.3 Reports 33 Article X LICENSES; COMPLIANCE WITH LAWS 34 Section 10.1 Licenses and Permits 34 Section 10.2 Compliance with Laws 34 Article XI ALTERATIONS AND MAJOR REPAIRS 34 Section 11.1 Alterations 34 Section 11.2 Major Repairs 35 Section 11.3 Conditions to Major Alterations and Major Repairs 35 Section 11.4 General Requirements 36 Section 11.5 Expansion of Improvements 36 Section 11.6 Mechanics' Liens 37 Section 11.7 Reserves 37 Article XII INSPECTION AND RIGHT OF ENTRY 38 Section 12.1 Inspection by City 38 Section 12.2 City's Right of Entry 38 Article XIII INDEMNIFICATION AND INSURANCE 38 Section 13.1 Indemnification by Museum 38 Section 13.2 Insurance 39 Section 13.3 Waiver of Subrogation 40 Section 13.4 No Liability of City 40 Article XIV DAMAGE AND DESTRUCTION 41 Section 14.1 Destruction of Leased Premises 41 Section 14.2 Museum's Option to Terminate Lease 41 Section 14.3 City's Option to Terminate Lease 42 Section 14.4 Demolition and Reconstruction 42 Section 14.5 Insurance Proceeds 43 Article XV EMINENT DOMAIN 43 Section 15.1 Complete Permanent Taking 43 Section 15.2 Partial Permanent Taking 44 ii MIA 180,105,011v15 12-3-08 Page Section 15.3 Temporary Taking 44 Article XVI ASSIGNMENTS AND SUBLETTING 44 Section 16.1 Assignment and Subletting of Leased Premises 44 Section 16.2 Permitted Transfers 45 Section 16.3 No Release of Museum 45 Section 16.4 Event of Bankruptcy 46 Article XVII MORTGAGE FINANCING; RIGHTS OF MORTGAGEE 47 Section 17.1 Leasehold Mortgages 47 Section 17.2 Leasehold Mortgage Conditions 47 Section 17.3 Rights of Leasehold Mortgagees 49 Section 17.4 Notices to/from Leasehold Mortgagees 52 Section 17.5 Lease Modifications 52 Article XVIII OWNERSHIP OF IMPROVEMENTS 52 Article XIX MUSEUM PARK SIGNAGE 53 Section 19.1 Building Signage 53 Section 19.2 Museum Park Signage System 53 Section 19.3 Expense Pass-Throughs 54 Article XX DEFAULT PROVISIONS 54 Section 20.1 Events of Default 54 Section 20.2 Events of Default —City. 55 Section 20.3 Mitigation 56 Section 20.4 Unavoidable Delay 56 Section 20.5 Termination 56 Section 20.6 Remedies Cumulative 56 Section 20.7 Waiver of Remedies Not To Be Inferred 57 Section 20.8 Effect of Termination 57 Article XXI NOTICES 57 Article XXII QUIET ENJOYMENT 57 Article XXIII ESTOPPEL CERTIFICATES 58 Article XXIV SURRENDER AND HOLDING OVER 58 Section 24.1 Surrender at End of Term 58 Section 24.2 Rights Upon Holding Over 59 Article XXV TRANSFERS BY CITY 59 Article XXVI MISCELLANEOUS PROVISIONS 59 Section 26,1 Ingress and Egress 59 Section 26.2 Assignability and Binding Effect 59 Section 26.3 Amendments 59 MIA 180,105,011v15 12-3-08 Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Page 26.4 Award of Agreement 26.5 Construction of Agreement 26.6 Waiver of Jury Trial 26.7 Severability 26.8 Time of Essence as to Covenants of Lease 26.9 Captions 26.10 Conditions and Covenants 26.11 Museum's Obligations Survive Termination 26.12 Radon 26.13 Recording; Documentary Stamps 26.14 Counterparts 26.15 Third Party Beneficiaries 26.16 Provisions not Merged with Deed 26.17 Waiver of Landlord's Lien 26.18 Approvals and Consents 26.19 Exculpation 26.20 Entire Agreement 26.21 Attorneys' Fees 26.22 Construction and Interpretation 60 60 60 60 60 60 60 60 60 61 61 61 61 61 61 62 62 62 62 Article XXVII Nondiscrimination 62 Article XXVIII ARBITRATION PROCESS 62 Section 28.1 Arbitrator(s) 62 Section 28.2 Arbitration Process 63 LIST OF EXHIBITS: Exhibit A Exhibit B Exhibit C Exhibit D-1 Exhibit D-2 Exhibit D-3 Exhibit D-4 Exhibit E-1 Exhibit E-2 Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Legal Description of Museum Park Legal Description/Depiction of Property Legal Description/Depiction of MAM Site Location of Access and Turnaround Easement Location of Construction Staging and Parking Easement Location of 11th Street Entry Location of South Road Access (in lieu of FDOT Turnaround) Legal Description/Depiction of FDOT Area Legal Description of FDOT Triangular Area List of Insurance Requirements (Exhibits F-1 through F-3) List of Permitted Exceptions Memorandum of Lease Agreement (Miami Art Museum Project) Community Benefits - MAM Possession Date Certificate iv MIA 180,105,011v15 12-3-08 LEASE AGREEMENT (MIAMI ART MUSEUM PROJECT) THIS LEASE AGREEMENT (MIAMI ART MUSEUM PROJECT) (the "Lease"), is made and entered into this day of , 2008, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"), and the MIAMI ART MUSEUM OF DADE COUNTY ASSOCIATION, INC., a Florida not -for -profit corporation (the "Museum"). RECITALS WHEREAS, the City is owner in fee simple of all of the land located in the Greater Miami downtown area, in Miami -Dade County, Florida, known as both "Bicentennial Park" and "Museum Park", which is legally described or depicted in Exhibit A attached hereto and incorporated herein ("Museum Park"); and WHEREAS, on July 25, 2002, the City Commission of the City of Miami passed and adopted Resolution No. 02-862 authorizing and directing the City Manager and City Attorney, inter alia, to negotiate (and finalize negotiations) with the Museum and the Museum of Science, Inc., a Florida not -for -profit corporation ("MSM"), for the development of new museum facilities within Museum Park, including without limitation the teinis and conditions of each museum's respective tenancies in Museum Park; and WHEREAS, the Board of County Commissioners of Miami -Dade County, Florida, passed and adopted Resolution Nos. R-912-04, R-913-04, R-914-04, R-915-04, R-916-04, R- 917-04, R-918-04 and R-919-04, which authorized the issuance of $2.926 billion in general obligation bonds for capital projects, including a new art museum and science museum within Museum Park, which bonds were approved by a majority of those voting on November 4, 2004; and WHEREAS, on September 12, 2008, (i) the City, (ii) the Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City of Miami (the "Authority"), (iii) Miami -Dade County, Florida, a political subdivision of the State of Florida (the "County"), (iv) the Museum, (v) MSM, and (vi) the Historical Association of Southern Florida, Inc., a Florida not -for -profit corporation, entered into a Memorandum of Understanding (the "MOU"), concerning the development, design, construction and operation of the various components of the "Museum Park Project" (defined below) in Museum Park; and WHEREAS, the MOU was approved by the Board of Directors of the Authority on May 14, 2008, and by the County Board of Commissioners and the City Commission by Resolution Numbers R-435-08 and R-08-0290, respectively; and WHEREAS, the MOU provides for the City to lease a portion of Museum Park more particularly described or depicted in Exhibit B attached hereto and incorporated herein (the "Property") to the Authority, and for the Authority to thereafter sublease portions of the Property to each museum, for the development and operation of a first class art museum, a first class MIA 180,105,011v1512-3-08 science museum and other related facilities and improvements, all in accordance with the provisions of Section 29-B of the City Charter; and WHEREAS, on November 13, 2008, the City Commission of the City passed and adopted Resolution No. R-08-0653, authorizing and directing the City Manager to negotiate and finalize the definitive documents for the Museum Park Project directly with the Museum and MSM, without the involvement of the Authority, to implement the Museum Park Project in a more efficient manner; and WHEREAS, the Museum desires to develop, construct, manage and operate a first class accredited art museum on the portion of the Property more particularly described or depicted on Exhibit C attached hereto and incorporated herein (the "MAM Site"); and WHEREAS, the City desires to lease to the Museum the MAM Site for the purpose of developing, constructing, managing and operating a first class accredited art museum thereon; and WHEREAS, the Museum intends to contribute sufficient funds from public or private sources as is necessary for the construction, operation, programming, maintenance, renovation and repair of the art museum. NOW, THEREFORE, in consideration of the foregoing and of the rent, covenants, and agreements hereinafter set forth, the parties do hereby covenant and agree as follows: ARTICLE I DEFINITIONS Section 1.1 Defined Terms; Singular, Plural and Gender. Any word contained in the text of this Lease shall be read as the singular or the plural, and as the masculine, feminine or neuter gender as may be applicable in the particular context. More specifically, however, for the purposes of this Lease the following words shall have the meanings attributed to them in this Section: (a) "Access and Turnaround Easement" shall mean the easement for access and vehicular turnaround over the 11th Street Entry, portions of Museum Drive, and the FDOT Area (the 11th Street Entry, Museum Drive, and the FDOT Area are each in the general location depicted on the Museum Park Master Plan and shown on Exhibit D-1 attached hereto), to be entered into by and among the City, the Museum and MSM, subject to the provisions of Section 3.6, pursuant to which, inter alia, (i) the City will grant to the Museum and MSM access to the Property via the 11th Street Entry, (ii) MSM and the Museum will grant to each other reciprocal access easements over appropriate portions of Museum Drive, and (iii) provided that the City obtains the FDOT Area Lease, the City will grant to the Museum and MSM the right to use the FDOT Area for access and vehicular turnaround (and any other uses permitted under the FDOT Area Lease, if any), subject to the terms and conditions of the FDOT Area Lease. 2 MIA 180,105, 011 v15 12-3-08 (b) "Accredited Museum" shall mean an art museum that is accredited through the American Association of Museums Accreditation Program (or its successor). If such accreditation program shall become unavailable, the Parties shall agree to a comparable substitute accreditation program for museums in the United States (if available). (c) "Additional Rent" has the meaning ascribed to it in Section 6.2. (d) "Alterations" means, collectively, Major Alterations, Permitted Alterations and Major Repairs. (e) "Ancillary Uses" has the meaning ascribed to it in Section 4.1. (f) "Applicable Laws" shall mean any law (including without limitation, any Environmental Laws), enactment, statute, code, ordinance, administrative order, charter, tariff, resolution, order, rule, regulation, guideline, judgment, decree, writ, injunction, franchise, permit, certificate, license, authorization, or other direction or requirement of any governmental authority, political subdivision, or any division or department thereof, now existing or hereafter enacted, adopted, promulgated, entered, or issued. (g) "Bankruptcy Code" shall have the meaning ascribed to it in Section 16.4. (h) "Base Rent" means the base rent to be paid as set forth in Section 6.1. (i) "Building Better Communities GOB Agreements" means that certain agreement entitled "Miami -Dade County Building Better Communities Grant Agreement/New Miami Art Museum Facility/GOB Project Number 296-70428" and dated , 2008, and the subsequent similar agreements to be executed by the Museum as a requirement of the funding of the construction of the Improvements by the County, all as authorized under the Board of County Commissioners of Miami -Dade County, Florida, Resolution Nos. R-912-04, R-913-04, R-914-04, R-915-04, R-916-04, R-917-04, R-918-04 and R-919-04, which authorized the issuance of $2.926 billion in general obligation bonds for capital projects and as approved on November 2, 2004, by a majority of those voting. (j) "Business Days" means Monday through Friday, excluding legal holidays for the City. All references in this Lease to time periods shall mean calendar days unless Business Days are specifically referenced. Whenever a date specified herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the next Business Day. (k) "Capital Repair Financing" has the meaning ascribed to it in Section 17.2. 3 MIA 180,105,011v15 12-3-08 (1) "Cash Flow Revolver" has the meaning ascribed to it in Section 17.2. (m) "Casualty Financing" has the meaning ascribed to it in Section 17.2. (n) State of Florida. Miami. "City" means the City of Miami, a municipal corporation of the (o) "City Commission" means the City Commission of the City of (p) "Comparable Museums" means other first class Accredited Museums located in major metropolitan areas nationwide. (q) "Completion Date" means the date that the Project is substantially completed in accordance with the Development Approvals. The issuance of a temporary certificate of occupancy shall constitute sufficient evidence that the Project has been substantially completed in accordance with the Development Approvals. (r) "Construction Staging and Parking Easement" shall mean the temporary easement to be granted by the City, as grantor to the Museum and MSM, as grantees/beneficiaries, for construction staging, parking and access during construction of the Improvements and the MSM Museum, pursuant to Article III of this Lease. The Construction Staging and Parking Easement shall cover the construction staging and parking areas and construction access road depicted in Exhibit D-2 attached hereto. The portion of the Construction Staging and Parking Easement over the 11th Street Entry shall be shared with the City and MSM, and the balance of the Construction Staging and Parking Easement shall be exclusive to the Museum and MSM. (s) "County" means Miami -Dade County, a political subdivision of the State of Florida. (t) "CPA" means an independent certified public accountant. (u) "Development Agreement" means the Development Agreement to be negotiated, approved, executed and delivered by the City, the Museum and MSM, and consented to by the County, with respect to the funding, development and construction of the Museum Park Project, including without limitation details regarding matching funds and private funding draw down schedules, development and cost overrun guarantee(s), coordination of construction among the various components of the Museum Park Project, construction administration procedures, and the rights and responsibilities of the City, the Museum and MSM to ensure construction in compliance with an agreed -upon construction schedule, together with any modifications, amendments, restatements and supplements thereto as may be approved in writing by the parties thereto. 4 MIA 180,105,011v15 12-3-08 (v) "Development Approvals" means the Major Use Special Permit for the Project, the development order authorized and approved by the City Commission at the hearing for the Major Use Special Permit for the Project, and any special exception(s), variance(s) and other governmental approvals and/or consents which are necessary to develop the Project on the MAM Site. (w) "Effective Date" means the date on which the last of the City and the Museum has executed this Lease, after approval by the City Commission. (x) "11`h Street Entry" means the area designated as the proposed 1lth Street entry into Museum Park, providing access from Biscayne Boulevard to Museum Drive and the proposed "Terrace" road, in the general location depicted in Exhibit D-3 attached hereto. (y) "Environmental Laws" means any federal, state, regional, or local (a) law, statute, ordinance, provision, regulation, rule, court order, judicial or administrative order, decision, determination, decree, consent order, consent decree, consent agreement, or other legal requirement, (b) permit, license, authorization, or approval, or (c) administrative policy, guideline, or standard required or legally imposed by a Governmental Authority (as hereinafter defined), whether now existing or hereinafter enacted, promulgated, issued, or ordered (including as they may be amended from time to time) relating to protection of the outdoor environment (concerning any and all environmental media), public health, or any Hazardous Substance (as hereinafter defined). For purposes of this definition, the term "Environmental Law" shall include as applicable but not be limited to the following: (A) the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251, et seq.); (B) the Solid Waste Disposal Act, including the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901, et seq.); (C) the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. § 9601, et seq.); (D) the Superfund Amendments and Reauthorization Act of 1986, as amended (codified in sections of 10 U.S.C., 29 U.S.C., and 42 U.S.C.); (E) the Federal Clean Air Act, as amended (42 U.S.C. § 7401, et seq.); (F) the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136, et seq.); (G) the Toxic Substances Control Act, as amended (15 U.S.C. § 2601, et seq.); (H) the Emergency Planning and Community Right -to -Know Act, as amended (42 U.S.C. § 11001, et seq.); (I) the Occupational Safety and Health Act, as amended (29 U.S.C. § 650, et seq.); (J) the Safe Drinking Water Act, as amended (21 U.S.C. § 349 and 42 U.S.C. §§ 201 and 300f, et seq.); (K) the National Environmental Policy Act, as amended (42 U.S.C. § 4321, et seq.); (L) the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801, et seq.); (M) the Atomic Energy Act, as amended (42 U.S.C. § 2011, et seq.); (N) the Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C. § 301, et seq.); (0) the Endangered Species Act (16 U.S.C. § 1531, et seq.); (P) any laws regulating the use of biological agents or substances including medical or infectious wastes; (Q) Chapter 24 of the Code of Ordinances of Miami -Dade County, Florida and Chapters 373, 376, and 403 of the Florida Statutes; and (R) as it relates to subsections (A) through (Q) of this definition, any and all related rules and regulations, all as in effect on the date hereof and as may hereafter be amended from time to time. 5 MIA 180,105,011v15 12-3-08 (z) "Environmental Remediation Agreement" shall mean the agreement to be negotiated, approved, executed and delivered by the City, the Museum and MSM with respect to the assessment of the environmental condition of the Property and the remediation thereof to the extent that the Property is not in compliance with any Environmental Laws, together with any modifications, amendments, restatements and supplements thereto as may be approved in writing by the parties thereto. Pursuant to the MOU, the City's liability to contribute to remediation costs under the Environmental Remediation Agreement shall not exceed $2,000,000 in the aggregate, unless otherwise agreed to by the City Commission. Section 20.2. Section 20.1. 8.2. 17.2. (aa) "Event of City's Default" has the meaning ascribed to it in (bb) "Event of Museum's Default" has the meaning ascribed to it in (cc) "Exacerbated Condition" has the meaning ascribed to it in Section (dd) "Expansion Financing" has the meaning ascribed to it in Section (ee) "FDOT" shall mean the Florida Department of Transportation. (ff) "FDOT Area" shall mean that certain parcel of land owned by FDOT, which land is legally described and/or graphically depicted in Exhibit E-1 attached hereto. (gg) "FDOT Area Lease" shall mean that certain long-term lease of the FDOT Area to be negotiated by the City, as lessee from FDOT, as lessor, for the benefit of the City, the Museum and MSM, as provided in Section 3.6. (hh) "FDOT Triangular Area" shall mean the portion of the FDOT Area legally described and graphically depicted in Exhibit E-2 attached hereto and incorporated herein. (ii) "Fiscal Year" means each consecutive twelve-month interval commencing on October 1st and expiring September 30th, as same may change from time to time during the Term. (jj) "Hazardous Materials" means any fuel, petroleum hydrocarbons, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any substances, wastes, or materials defined as "hazardous" or "toxic" under any Environmental Laws. 6 MIA 180,105, 011 v15 12-3-08 (kk) "Impositions" means all governmental assessments, fire fees, parking surcharges, excises, license and permit fees, levies, charges and taxes, general and special, ordinary and extraordinary, of every kind and nature whatsoever (irrespective of their nature, including, without limitation, all such charges based on the fact of a transaction, irrespective of how measured) which at any time during the Tenn of this Lease may be assessed, levied, confirmed, imposed upon, or become due and payable out of or in respect of, or become a lien on, all or any part of the Leased Premises and/or improvements thereon, or any fixtures, equipment or personal property placed therein or thereon, including, without limitation, ad valorem and other similar taxes on the real estate, the leasehold interest and/or personal property. (11) "Improvements" shall mean the proposed art museum to be constructed upon the MAM Site, together with its portion of the Parking Facility, loading docks, visitor drop-offs, access roads, internal site roadways, outdoor features and related amenities and facilities, to be developed and operated on the MAM Site by the Museum as part of the Museum Park Project pursuant to the terms of the Development Agreement and this Lease, together with any additions, replacements, alterations and/or improvements thereto made in accordance with the terms of this Lease. (mm) "Insurance Requirements" shall mean the insurance requirements for the Project imposed by the City's Risk Management Department set forth on composite Exhibit F. (nn) "Lease Year" shall mean any period of time consisting of twelve (12) consecutive calendar months commencing on the Possession Date. (oo) "Leased Premises" shall mean the MAM Site, together with the Improvements. (pp) "Leasehold Estate" means all of the estate, rights and interest of the Museum in and to the Leased Premises under this Lease. (qq) "Leasehold Mortgage" has the meaning ascribed to it in Section 17.1. (rr) "Leasehold Mortgagee" means a Person which, at the time it becomes a Leasehold Mortgagee, is a state or federally chartered savings bank, savings and loan association, credit union, commercial bank or trust company or a foreign banking institution (in each case whether acting individually or in a fiduciary or representative capacity (such as an agency capacity)); an insurance company organized and existing under the laws of the United States of America or any state thereof or a foreign insurance company (in each case whether acting individually or in a fiduciary or representative capacity (such as an agency capacity)); an institutional investor such as a publicly held real estate investment trust, an entity that qualifies as a "REMIC" under the Internal Revenue Code, as amended, or other public or private investment entity (in each case whether acting as principal or agent); a brokerage or investment banking organization (in each case whether acting individually or in a fiduciary or representative MIA 180,105, 011 v15 12-3-08 7 capacity (such as an agency capacity)); an employees' welfare, benefit, pension or retirement fund; an institutional leasing company; any governmental agency or entity insured by a governmental agency or any combination of the above. The term "Leasehold Mortgagee" also includes a Person (other than a natural person) that holds a controlling interest in a Leasehold Mortgagee as described in this paragraph. (ss) "Major Alterations" shall mean (i) structural alterations or alterations to the exterior of the Improvements which exceed $5,000,000 in cost, and (ii) any expansion of the restaurant, cafe, or museum gift shop which increases the square foot area of the restaurant, cafe or museum gift shop (as applicable) by more than thirty percent (30%) of the square foot area existing immediately prior to the expansion. The threshold amount for Major Alterations of $5,000,000 shall be increased on the fifth (5th) anniversary of the Possession Date and each fifth (5th) anniversary thereafter by adding $1,000,000. (tt) "Major Repairs" shall mean repairs and/or replacements to the Improvements which require a permit under Applicable Laws and cost in excess of $5,000,000. The threshold amount for Major Repairs of $5,000,000 shall be increased on the fifth (5th) anniversary of the Possession Date and each fifth (5th) anniversary thereafter by adding $1,000,000. (uu) "MAM Commencement Date" means the date of the notice to proceed given pursuant to the Development Agreement by the Museum to its general contractor or construction manager, as applicable. The conditions to the MAM Commencement Date shall be specifically set forth in the Development Agreement, and shall include a requirement that the Museum provide to the City a financial plan showing that it will have adequate funds to cover the cost of construction of the Project. In no event shall the MAM Commencement Date be earlier than the Possession Date or later than thirty-six (36) months after the Effective Date, subject to Unavoidable Delay. (vv) "MAM Site" means that certain area of land consisting of approximately four (4) acres located in Museum Park, which is legally described in Exhibit C attached hereto and incorporated herein. (ww) "Management Agreement" means the Management and Operation Agreement to be negotiated, approved, executed and delivered by the City, the Museum and MSM with respect to the operation, maintenance, repair and replacement of each component of the Museum Park Project, including the Improvements, the MSM Museum, the Park Component and any shared facilities, together with any modifications, amendments, restatements and supplements thereto as may be approved in writing by the parties thereto. (xx) "MOU" has the meaning ascribed to it in the Recitals to this Lease. (yy) "MSM" means the Museum of Science, Inc., a Florida not -for - profit corporation, together with its successors and/or permitted assigns. 8 MIA 180,105,011v15 12-3-08 (zz) "MSM Lease" shall mean the Lease Agreement by the City of the MSM Site to MSM dated , 2008, together with any amendments, modifications, restatements and supplements thereto as may be approved in writing by the parties thereto. (aaa) "MSM Museum" shall mean the regional science museum now or hereafter constructed upon the MSM Site, together with its portion of the Parking Facility, loading docks, visitor drop-offs, access roads, internal site roadways, outdoor features and related amenities and facilities, to be developed and operated on the MSM Site by MSM as part of the Museum Park Project pursuant to the terms of the Development Agreement and the MSM Lease. (bbb) "MSM Site" shall have the meaning ascribed to it in the MSM Lease. (ccc) "Museum" has the meaning ascribed to it in the opening paragraph of this Lease, together with its successors and/or permitted assigns. (ddd) "Museum Drive" shall mean the area labeled "Museum Park Road" on Exhibit B, which is located entirely within the Property. (eee) "Museum Hours" shall mean customary hours of operation consistent with Comparable Museums, which shall include evening hours to accommodate events and/or other museum programming, provided that the Museum shall not hold outdoor events beyond the latest hour allowed under Applicable Law, unless otherwise approved by the City in accordance with Applicable Laws. (fff) "Museum Park" has the meaning ascribed to it in the Recitals and is legally described or depicted in Exhibit A attached hereto and incorporated herein. (ggg) "Museum Park Events" has the meaning ascribed to it in Section 2.5. (hhh) "Museum Park Events Deadline" shall mean June 30, 2009, as same may be extended pursuant to Section 2.5. (iii) "Museum Park Master Plan" shall mean the master plan for the Museum Park Project developed by Cooper Robertson & Partners, an architecture and urban design film, dated , 2008 and approved by the City, the Museum and MSM, as amended and approved by the City, the Museum and MSM, from time to time. (jjj) "Museum Park Project" shall mean the development, construction, management and operation of the Improvements, the MSM Museum and the Park Component, and any other related facilities and improvements in Museum Park, which are incidental and ancillary to the operation of the Improvements, MSM Museum and the Park Component, to be designed and developed in accordance with the Museum Park Master Plan and the Development Agreement. 9 MIA 180,105,011v15 12-3-08 (kkk) "Museum Park Steering Group" shall mean the governing body for Museum Park under the Management Agreement, which shall be comprised of the President of MSM, Executive Director of the Museum, the City Mayor, the County Mayor, the Director of the City's Parks and Recreation Department, and the Executive Director of the Trust, or their designees. The function of the Museum Park Steering Group is to oversee and assist in coordinating the planning, design, construction, and operation of the Museum Park Project, and to assist in expedited good faith, collaborative dispute resolution among the Museum, the City, and MSM pursuant to rules to be adopted for same by the Museum Park Steering Group. (111) "Museum Signs" shall have the meaning ascribed to it in Section 2.4. (mmm) "Park Component" shall mean the portion of the Museum Park Project consisting of approximately 21 acres of land in Museum Park located adjacent to the Property, to be designed, developed and operated by the City or its designees in accordance with the Museum Park Master Plan, and pursuant to and subject to the terms of the Development Agreement and the Management Agreement. (nnn) "Parking Facility" shall have the meaning ascribed to it in Section 3.5. (000) "Party" or "Parties" (whether or not by use of the capitalized term) shall mean jointly or individually (as context dictates) the City and the Museum. (ppp) "Permitted Alterations" has the meaning ascribed to it in Section (qqq) "Permitted Exceptions" shall mean (i) the title matters set forth in Exhibit G, and (ii) any easements, restrictions or covenants recorded against the MAM Site after the Effective Date pursuant to the terms of this Lease with respect to the development, construction, operation, and management of the Museum Park Project. (') "Peinnitted Uses" has the meaning ascribed to it in Section 4.1. (sss) "Person" means any natural person, trust, firm, partnership, corporation, joint venture, association, or any other legal or business entity or investment enterprise. (ttt) "Personal Property" means all property owned and used by the Museum or any subtenant or other Transferee of the Museum, in connection with and located upon the Leased Premises, subject to rights of any secured party or title retention agreement of a third party. (uuu) "Possession Date" means the date on which the City delivers possession of the Leased Premises to the Museum which shall occur upon satisfaction of the condition precedents set forth in Section 2.3(a). At the request of either Party, the 10 MIA 180,105, 011 v15 12-3-08 City and the Museum shall promptly execute a completed certificate confirming the actual Possession Date in the form attached hereto as Exhibit J. (vvv) "Primary Purpose" has the meaning ascribed to it in Section 4.1. (www) "Project" shall mean the development, construction, management and operation of the art museum to be known as the "Miami Art Museum", and any other related facilities and improvements at the MAM Site, which are incidental and ancillary to the operation of a regional art museum. (xxx) "Property" shall mean that certain area of land located in Museum Park, which is legally described in Exhibit B attached hereto and incorporated herein, consisting of the MAM Site and the MSM Site. (yyy) "Reconstruction Work" shall have the meaning ascribed to it in (zzz) "Renewal Term" shall have the meaning ascribed to it in Section 2.2(b) below. (aaaa) "Rent" shall mean the Base Rent, Additional Rent and any other amounts the Museum is required to pay under this Lease. Section 14.1. (bbbb) "Section", "subsection", "paragraph", "subparagraph", "clause", or "subclause" followed by a number or letter means the section, subsection, paragraph, subparagraph, clause or subclause of this Lease so designated. (cccc) "Skipped GOB Revolver" has the meaning ascribed to it in Section 17.2. (dddd) "Term" has the meaning ascribed to it in Section 2.2(a). (eeee) "Transfer" has the meaning ascribed to it in Section 16.1. (ffff) "Transferee" has the meaning ascribed to it in Section 16.1. (gggg) "Trust" shall mean The Bayfront Park Management Trust of the City of Miami (or its successor, if any). (hhhh) "Unavoidable Delay" shall have the meaning ascribed to it in Section 20.4. Section 1.2 Incorporation of Exhibits. All exhibits attached to this Lease and referenced herein are incorporated herein as if fully set forth in this Lease. 11 MIA 180,105,011v15 12-3-08 ARTICLE II LEASED PREMISES AND TERM Section 2.1 Description of Leased Premises; Title. The City hereby leases to the Museum, and the Museum hereby leases from the City, the Leased Premises located in Museum Park in the City of Miami, Florida. The City shall transfer possession of the Leased Premises to the Museum on the Possession Date. The City represents, and the Museum acknowledges, that the Leased Premises are subject to (and only to) the Permitted Exceptions. Except as expressly provided in Section 3.3, the City covenants and agrees not to consent to any future reservations, covenants, easements, restrictions or liens, or otherwise permit or suffer any impairment of the state of title to the Leased Premises, without the prior written consent of the Museum. Each of the City and the Museum represents and warrants to the other it has full right and authority to enter into this Lease. Section 2.2 Term of Lease. (a) Initial Term. This Lease shall be for a term of approximately thirty (30) years (the "Term") commencing on the Possession Date and ending on the date which is thirty (30) years following the Possession Date, unless terminated at an earlier date pursuant to the terms of this Lease. The initial Term, together with any renewals thereof (including any Renewal Terms, as defined in Section 2.2(b) below), is hereinafter referred to as the "Term". Following the Effective Date, the City and the Museum, upon request of either party, shall execute a memorandum of this Lease in the form attached hereto as Exhibit H, which Memorandum will be recorded, at no cost to the City, among the Public Records of Miami -Dade County, Florida, to give record notice of this existence of this Lease and certain terms set forth herein. (b) Renewal Terms. The Term shall be automatically renewed for two (2) consecutive periods of thirty (30) years each and one additional consecutive period of nine (9) years (each, a "Renewal Term"), provided that no uncured Event of Museum's Default exists at the commencement of the Renewal Term. The Museum shall not be required to notify the City of any election to renew this Lease; it being agreed by the Parties that each renewal shall be automatic without notice of any kind, conditioned only upon there being no uncured Event of Museum's Default as hereinabove provided. The Museum agrees to provide the City with written notice of its election not to renew the Lease for a Renewal Term no later than six (6) months prior to the expiration of the Term (or Renewal Term, as applicable), which notice shall be delivered pursuant to the notice provisions contained herein. Each Renewal Term shall commence on the date immediately following the expiration of the Term (or Renewal Term, as applicable). The total Term of this Lease, including the three (3) Renewal Terns, shall not exceed a period of ninety-nine (99) years, unless further extended by mutual agreement of the Parties, with the approval by the City Commission. The covenants and conditions of this Lease in effect during the initial Term, as same may be modified from time to time, shall continue to be in effect during each Renewal Tenn (including Rent provisions requiring the payment of annual Base Rent at a rate of $2.00 per year), except that the "Term" for purposes of this Lease shall include each Renewal Term. To the extent that an uncured 12 MIA 180,105,011v1512-3-08 Event of Museum's Default exists at the commencement of the Renewal Term, then this Lease shall not renew automatically and the City Commission's consent to the renewal of this Lease for the Renewal Term in question shall be required. (c) Additional Renewals. Not later than thirty-six (36) months prior to the end of the final Renewal Term, the City and Museum shall use good faith efforts to negotiate the terms and conditions of one or more additional renewal terms to allow for the continued possession of the Leased Premises by the Museum and operation of the Project thereon, with the approval of the City Commission. In the event that the Parties agree to additional renewal terms hereunder, the "Term" for purposes of this Lease shall also include each such additional renewal teiins and the Parties shall document the additional renewal(s) and additional terms and conditions, if any, through an amendment to this Lease. (d) Pattern of Non -Compliance. In the event of a "pattern of non- compliance" (for example, the Museum defaults on the same obligation under this Lease three (3) times in any Lease Year or on any obligations under this Lease six (6) times in any Lease Year), then, upon the written request of the City, the Museum and the City shall review the performance by the Museum of its obligations under this Lease during such period and shall use commercially reasonable efforts to develop a plan to avoid any continuing pattern of non-compliance reasonably satisfactory to the Parties. The intent of this provision is that the Parties work together to find solutions to recurring instances of non-compliance; however, nothing contained in this paragraph (d) shall be deemed or construed as a waiver of the City's rights and remedies under any other provisions of this Lease. Section 2.3 Conditions; Right to Terminate. This Lease is subject to the following conditions: (a) Conditions Precedent to Possession Date. The Possession Date shall not occur unless and until the following conditions have been satisfied: (i) within one (1) year after the Effective Date, the City, the Museum and MSM shall have executed and delivered the Development Agreement; and (ii) within one (1) year after the Effective Date, the City, the Museum and MSM shall have executed and delivered the Environmental Remediation Agreement. The City and the Museum (in conjunction with MSM) agree to use reasonable diligent efforts to negotiate and agree to the terms of the Development Agreement and the Environmental Remediation Agreement in good faith with the common objective of having such documents approved by the City Commission and the Museum's Board of Directors as soon as practicable. In the event that, after each party's exercise of reasonable diligent effort as provided herein, either of the foregoing conditions are not satisfied within the time period specified, subject to Unavoidable Delay, either Party shall have the right to terminate this Lease by written notice to the other delivered pursuant to the notice provision contained herein at any time after the expiration of said time period but prior to the satisfaction of the condition in question. In the event that the condition is satisfied prior to the termination of this Lease, the right to 13 MIA 180,105,011v15 12-3-08 terminate this Lease with respect to that particular condition shall cease. Upon termination, the Parties shall be released from all further obligations hereunder. (b) Termination of Development Agreement. The Parties hereby acknowledge that the liabilities, obligations and covenants of the Museum and the City under this Lease may be contingent upon the satisfaction of certain conditions set forth in the Development Agreement (such as, by way of example only, inspection, review or due diligence periods, deadlines for the commencement and completion of construction (subject to Unavoidable Delay), funding conditions, etc.). The foregoing examples are given for illustration purposes only, and the Parties acknowledge that any actual conditions to the Parties obligations under this Lease will be expressly agreed to and set forth in the Development Agreement. In the event that the Development Agreement is properly terminated with respect to the MAM Site pursuant to any express provision thereof prior to the Completion Date, then either Party shall have the right to terminate this Lease by written notice to the other delivered pursuant to the notice provision contained herein, whereupon the Parties shall be released from all further obligations hereunder, except as hereinafter provided. In the event the Development Agreement is terminated hereunder prior to substantial completion of the Improvements, then, upon written request of the City, the Museum shall either secure the MAM Site to minimize injury to persons or raze the Improvements, fill the MAM Site with clean appropriate fill or dirt (to fill areas disturbed by construction only) and leave it as a level, cleared vacant lot. (c) Management Agreement. The City and the Museum agree to use reasonable diligent efforts to negotiate and agree to the terms of the Management Agreement in good faith with the common objective of having such document approved by the City Commission and the Museum's Board of Directors within three hundred sixty-five (365) days after the Effective Date. If the Parties fail to agree to the terms of the Management Agreement within said 365-day period, neither Party shall have the right to terminate this Lease and both Parties shall continue to use reasonable diligent efforts to finalize the terms of a mutually acceptable Management Agreement as soon as practicable; however, if the Parties fail to reach agreement on the Management Agreement as a result of the failure of one Party to comply with its obligations under this Section 2.3(c), then such failure shall constitute a default by such Party under this Lease. If the Parties, after exhausting reasonable diligent efforts, remain unable to agree to the terms of the Management Agreement, then the open issues shall be submitted to the Museum Park Steering Group for assistance in resolving such issues. Section 2.4 Signage During Construction. From and after the Effective Date until the date which is sixty (60) days following the Completion Date, the Museum, at its sole cost, shall have the right and license to keep and maintain one or more sign(s) (collectively, the "Museum Signs") within Museum Park and, to the extent reasonably feasible, with visibility from Biscayne Boulevard, the 395 Expressway and/or Biscayne Bay, which publicize the MAM Site as "The Future Home of the Miami Art Museum" (or words of like import), together with the right of ingress and egress to and from the Museum Signs, through such areas as are approved by the City and the Trust, for the purpose of maintaining, altering, replacing and/or 14 MIA 180,105,011v15 12-3-08 removing the Museum Signs. If the County is recognized on the Museum Signs for its contributions to the Project, then the City shall also be recognized on the same Museum Signs and the lettering used to identify the City and the County shall be the same size font to the extent permitted by the Miami -Dade County Building Better Communities General Obligation Bond Program administrative rules. The Museum Signs shall be installed, and the right of ingress and egress shall be provided, in a location mutually acceptable to the Parties, and shall be installed and maintained by the Museum under valid permits and in compliance with all Applicable Laws and any reasonable requirements of the City (and the County, if applicable). In the event that this Lease is terminated for any reason or the Museum breaches its obligations hereunder with respect to the installation or maintenance of the Museum Signs, the Museum, at its sole cost, shall be required to immediately remove the Museum Signs from Museum Park and to restore any damage caused by such removal. The Museum shall indemnify, defend and hold the City harmless from any claims, causes of action, fines penalties or levies made against the City by reason of the Museum's installation or removal of the Museum Signs on the MAM Site and in other locations in Museum Park. The Museum Signs shall be subject to the approval of the City. Museum Park Events. The Parties acknowledge that Museum Park has been used historically by the City and/or the Trust for special events booked by third parties, which events may occupy a portion or all of Museum Park, may occur on a one-time, annual or more frequent basis, and which events provide a source of revenue for the City ("Museum Park Events"). With respect to Museum Park Events, the Parties agree as follows: (a) Pre -Possession Date Events. The Museum acknowledges that special events are currently booked to use all of Museum Park through the Museum Park Events Deadline, and that the Trust and/or the City shall have the right to continue to book events that will use all of Museum Park through such date. The Parties anticipate that the Possession Date, which is conditioned solely upon the negotiation and execution of the documents identified in Section 2.3(a) by the City, the Museum and MSM, will occur on or before the Museum Park Events Deadline. In the event either Party reasonably believes that the Possession Date will be delayed beyond the Museum Park Events Deadline, such Party shall promptly notify the other Party and the Trust in writing, whereupon the Parties shall meet and use good faith efforts to agree to an updated anticipated Possession Date reasonably satisfactory to the Parties, in order to allow the City and Trust to continue to book events in Museum Park that affect the MAM Site through such new estimated Possession Date (and the Museum Park Events Deadline shall be automatically extended for a corresponding period of time). (b) Post -Possession Date Events. After the Possession Date, the MAM Site and the FDOT Area shall not be available or used for any Museum Park Events whatsoever; however, if the actual Possession Date occurs before the Museum Park Events Deadline, then the MAM Site and the FDOT Area may nevertheless be used for any events actually booked as of the Possession Date through the Museum Park Events Deadline. The portions of Museum Park encumbered by the Access and Turnaround Easement and the Construction Staging and Parking Easement shall not be available or used for any Museum Park Events from and after the later to occur of (i) the date such easements are granted to the Museum, or (ii) the Museum Park Events Deadline. The Museum acknowledges that the City and the Trust shall have the right, 15 MIA 180,105, 011 v15 12-3-08 after the Possession Date, to continue to book events in Museum Park (excluding, however, the MAM Site, the FDOT Area, and the portions of Museum Park encumbered by the Access and Turnaround Easement and the Construction Staging and Parking Easement after the date such easements are granted to the Museum), so long as such events do not unreasonably interfere with the development, construction and operation of the Project. All Museum Park Events shall be subject to the terms and conditions of the Management Agreement after the effective date of same. ARTICLE III EASEMENTS, PARKING AND SIGNAGE Section 3.1 Easements. Subject to Section 3,2 below and the terms of the Development Agreement, the City hereby agrees to grant, without charge by the City, such temporary and peuuianent non-exclusive (except as otherwise provided herein) easements in, over, upon, through and under Museum Park, as may be reasonably needed and requested by the Museum in connection with the development, construction, operation, maintenance and repair of the Improvements and/or any element of the Project, including without limitation the following: (a) Utility Easements. Installing, maintaining, repairing and replacing utility facilities, equipment and lines such as water, gas, electric, telephone and cable lines, and storm and sanitary sewers; and (b) Access Easements. Providing access for pedestrians and vehicles (including autos, service, emergency and construction) to and from the Property, including without limitation access easements to and from Biscayne Boulevard to the Property, and to and from the MAM Site to Biscayne Bay. The access easements granted hereunder shall include the Access and Turnaround Easement, provided that the City obtains the FDOT Area Lease (subject to the Willis and conditions of the FDOT Area Lease), and in any event shall include the 11 th Street Entry; and (c) Construction Easements. Providing temporary construction staging areas, parking areas and access to and from such areas to the MAM Site, as comprised in the Construction Staging and Parking Easement (or as otherwise may be agreed to by the Parties in writing). The Construction Staging and Parking Easement shall be granted no later than (and be effective as of) the MAM Commencement Date, and shall terminate no later than the date of issuance of the certificate of occupancy for the Improvements or the MSM Museum, whichever is later; and (d) Drainage Easements. Installing, maintaining, repairing and replacing drainage facilities for storm water and irrigation water; and (e) Easements for Support. Allowing subterranean and lateral encroachments for portions of the Improvements which provide physical support, including but not limited to pilings, footings, foundations, retaining walls and columns, provided that all such encroachments shall be subject to the prior written approval of the City. Any encroachments permitted hereunder that are located deeper than fifteen feet (15') below grade and not shown as a permanent structural element on the plans for the 16 MIA 180,105, 011 v15 12-3-08 Project shall be removed by the Museum, at its sole cost and expense, in accordance with the terms of the Development Agreement or the grant of easement; and (f) Easements Necessary for Infrastructure, Services, and Repairs. Providing easements reasonably necessary for the Museum to carry out its obligations regarding infrastructure, services, and repairs as described in Article V of this Lease. The easements requested by the Museum shall be consistent with any master infrastructure plan for the Museum Park Project developed pursuant to the Development Agreement. To the extent that any easements that are needed or requested for the development of the Project and/or the Museum Park Project in general will affect or encumber lands not owned or controlled by the City, then the City agrees to use commercially reasonable efforts to obtain such easements for the benefit of the Museum, provided that the City shall not be required to incur any cost or expense in obtaining such easements unless the City otherwise agrees pursuant to the terms of the Development Agreement. For purposes of this Lease, the description of the MAM Site shall be deemed to include any easements granted to or by the City under this Section effective as of the date of such easement. Section 3.2 Limitations on Easement Rights. The City shall grant such easements as provided for in Section 3.1 above to the Museum in, to, under and through areas along the boundaries of the Park Component or in other locations mutually acceptable to the Parties, provided that such easements are granted upon the express condition that: (a) The City approves the location of such easements, taking into consideration (i) the necessity of such easements for the development of the Project, (ii) the improvements to be located in the Park Component by the City as contemplated in the Museum Park Master Plan, and (iii) the consistency of such easements with the master infrastructure plan. The grant of such easements shall be subject to the approval of the City Commission, if required by the City Charter and Code; (b) The grantee of such easement shall carry on any construction, maintenance or repair activity with reasonable diligence and dispatch, and shall use reasonably diligent efforts to complete the same in the shortest time possible under the circumstances (subject to Unavoidable Delay), and shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the public's use and enjoyment of Museum Park, Museum Park Events and the development of the Museum Park Project; (c) Except in the event of emergency, the grantee of such easement shall not undertake any construction, replacement, maintenance or repair activity in such easement area unless prior notification is provided to the City not less than three (3) Business Days before the commencement of such activity; (d) The grantee of such easement shall promptly upon the completion of any such construction, repair or maintenance activity, at no cost to the City, restore the surface of the easement area as nearly as possible to its former condition and appearance 17 MIA 180,105,011v15 12-3-08 (taking into consideration the nature of the easement granted, such as, by way of example, a roadway over a previously landscaped area); (e) Responsibility for the cost of construction and ongoing maintenance of the easement area and facilities located therein shall be allocated among the parties benefitted by the easement in a fair and equitable manner; (f) The grantee of such easement shall agree to indemnify, defend and hold harmless the City from all claims and actions in law and in equity which may arise out of, or as a consequence of the breach of the terms of the easement instrument, or the negligence of the grantee, or its authorized agents, servants or employees, in maintaining, repairing and utilizing the easement area; and (g) The grantee or beneficiary of such easement shall (i) obtain such commercial general liability insurance as may be reasonably required by the City's Risk Management Department, and (ii) during any period of construction by the grantee within the easement area, provide such payment and performance bonds as may be required by any governmental authority with jurisdiction over such work. Section 3.3 Easements for Development of Other Areas in Museum Park. The Museum acknowledges that in order to develop other portions of the Museum Park Project, the City may need easements in, to and through areas along the boundaries of the Property or in other locations affecting the Property mutually acceptable to the Parties. Accordingly, the City reserves the right to such easements for such purposes as it deems reasonably needed, including easements to erect, use, maintain and repair water, sanitary sewer and storm water utilities, mechanical and electrical conduits, pipes, and cable, provided that: (a) The City obtains the Museum's prior written approval of the location of such easements, taking into consideration the necessity of such easements for the development of the Museum Park Project; (b) The grantee of such easement shall carry on any construction, maintenance or repair activity with reasonable diligence and dispatch, and shall use reasonably diligent efforts to complete the same in the shortest time possible under the circumstances (subject to Unavoidable Delay), and shall not carry on any construction, maintenance or repair activity in the easement area in such manner as to unreasonably interfere with the Project, or the use and enjoyment of the Property or the FDOT Area, or the operation of any Improvements thereon, by the Museum; (c) Such easements are not located on any areas where any structures or other improvements (other than landscaping, roads or other non -vertical improvements, which shall be restored as provided in clause (e) below) are located or contemplated to be located on the Property and the FDOT Area; (d) Except in the event of emergency, the grantee of such easement shall not undertake any construction, replacement, maintenance or repair activity in such 18 MIA 180,105, 011 v15 12-3-08 easement area unless prior notification is provided to the Museum not less than three (3) Business Days before the commencement of such activity; (e) The grantee of such easements shall promptly upon completion of any construction, repair or maintenance activity, at no cost to the Museum, restore the surface of the easement area as nearly as possible to its former condition and appearance (taking into consideration the nature of the easement granted, such as, by way of example, a roadway over a previously landscaped area); (f) The grantee of such easement shall agree to indemnify, defend and hold harmless the Museum from all claims and actions in law and in equity which may arise out of, or as a consequence of the breach of the terms of the easement instrument, or the negligence of the grantee, or its authorized agents, servants or employees, in maintaining, repairing and utilizing the easement area, provided that if the grantee of the easement is the City or another governmental authority, such indemnification shall be limited to the extent permitted by Applicable Law, including, specifically, but without limitation, Section 768.28 of the Florida Statutes; and (g) The grantee or beneficiary of any such easement shall (i) except for the City or another self -insured governmental authority, provide such insurance (for the benefit of the Museum) as the Museum may reasonably require, provided that such insurance requirements are customary for such easements, and (ii) pay for the costs of construction, maintenance and repair of the easement area and any facilities located therein. The Museum acknowledges that the City intends to undertake (or cause to be undertaken) development of the Park Component and other improvements in Museum Park in accordance with the Museum Project Site Plan as part of the overall Museum Park Project, which may cause noise and other interference with the Project. The City agrees to use commercially reasonable efforts (and to cause commercially reasonable efforts to be used by other parties undertaking such work) to minimize the interference and disruption by such development of the Park Component and such other improvements, and in no event shall any work related to such development unreasonably interfere with the construction or operation of the Project. Section 3.4 Certain Utility Easements. The Parties understand and agree that certain utility service providers (such as Florida Power & Light Company, the Miami -Dade Water and Sewer Department, Bellsouth, etc.) may not approve some or all of the conditions set forth in Sections 3.2 and 3.3 of this Lease. In the case of easements to such utility service providers, the Parties shall use commercially reasonable efforts to incorporate all of the required conditions into such easements, but agree that the easements in question shall nevertheless be granted to such utility service providers if necessary for any portion of the Museum Park Project in the event any of them refuse to agree to one or more of such conditions; subject, however, to the approval of the Parties as to location when required herein. Section 3.5 Common Areas and Parking. The Museum shall work with MSM to design, develop and operate the common or shared areas of the Property, including without limitation the plaza and the parking facilities (the "Parking Facility") to be more particularly 19 MIA 180,105,011v15 12-3-08 described in the Development Agreement and the Management Agreement. The Parking Facility shall be designed and operated as a single, continuous under -building parking structure with the goal of providing approximately 500 parking spaces in the aggregate, unless reduced pursuant to Section 3.6. The City recognizes that (a) the Project and MSM Museum may be constructed and completed at different times; and (b) there may be periods of time during the Term during which the Parking Facility is available on a portion of the Property but not the other (such as, by way of example and not limitation, during periods of restoration after a casualty that affects the Project but not the MSM Museum). Accordingly, the portion of the Parking Facility under the Improvements and on the MAM Site may be designed and constructed (and, if necessary, operated) as an independent structure from the portion of the Parking Facility under the MSM Museum to allow the Museum to obtain building permits, certificates of occupancy, occupational licenses and all other applicable authorizations, approvals, permits and licenses from any governmental authority with jurisdiction over the MAM Site as may be necessary to develop, construct, operate, manage, maintain and repair the Project, irrespective of whether the MSM Museum on the MSM Site is underway, completed and/or in operation. The Parking Facility shall be open to the public for parking by visitors to the Park Component. Section 3.6 FDOT Area. Pursuant to the Museum Park Master Plan, the FDOT Area is designated on the Museum Park Master Plan as an access road and vehicular turnaround providing access to the Improvements, the MSM Museum and the Parking Facility. Title to the FDOT Area is held by FDOT. The City agrees to use commercially reasonable efforts (but shall not be required to expend any funds) to negotiate and obtain the FDOT Area Lease from FDOT. In the event that the City is able to secure the FDOT Area Lease on terms and conditions mutually acceptable to the Parties, the City shall grant the Museum the right to use the FDOT Area for access and vehicular turnaround (and any other uses permitted under the FDOT Area Lease, if any) pursuant to the Access and Turnaround Easement, subject to the terms and conditions of the FDOT Area Lease. In the event that the City is unable to secure the FDOT Area Lease on terms and conditions mutually acceptable to the Parties, (a) the Access and Turnaround Easement shall not include the FDOT Area, and (b) the City and the Museum shall agree to one of the following alternatives to the lease of the FDOT Area in order to provide access and vehicular turnaround (if necessary) for the Improvements as may be required by Applicable Law or desirable for the use and operation of the Project: (a) South Road Access. The City shall grant to the Museum an easement for access and vehicular turnaround over the 11 th Street Entry and proposed "Terrace" road lying immediately south of the Property, all in the location generally depicted in the Museum Park Master Plan and as shown on Exhibit D-4 attached hereto, on terms and conditions mutually acceptable to the Parties. (b) Parking Facility. The Museum, in conjunction with MSM, may redesign the Parking Facility to accommodate the access and vehicular turnaround originally contemplated by the Museum Park Master Plan for the FDOT Area. In the event that the Museum, MSM and City agree to the relocation of the vehicular turnaround to the Parking Facility, then the number of parking spaces located within the Parking Facility shall be automatically reduced by the number of parking spaces eliminated as a result of such redesign of the Parking Facility (on a space per space basis), provided, 20 MIA 180,105,011v15 12-3-08 however, that the reduced final number shall be no fewer than 400 parking spaces. In such event, the 11 th Street Entry and appropriate portions of Museum Drive shall be used for access to the MAM Site, but not the FDOT Area. (c) Relocation of Property. The City, the Museum and MSM shall agree to discuss in good faith the shifting of all or a portion of the Property south of the current location depicted on the Museum Park Master Plan to accommodate Museum Drive to the north of the Property (as originally contemplated on the Museum Park Master Plan), but wholly within land currently owned in fee simple by the City. In the event the City, the Museum and MSM agree to the relocation of the Property as provided herein, the City shall grant the Museum an easement for access and vehicular turnaround similar to the Access and Vehicular Turnaround Easement over the proposed new location for Museum Drive north of the Property (and the Parties and MSM shall work together to adjust the location and legal description of the various portions of Museum Drive as necessary to accommodate such new location). (d) Other. The City and the Museum shall agree to any other alternative for the access road and vehicular turnaround mutually acceptable to the Parties. Section 3.7 FDOT Triangular Area. The Museum intends to construct a portion of the Improvements over the FDOT Triangular Area as depicted in the preliminary plans attached to application for the Development Approvals. The City agrees to use commercially reasonable efforts (but shall not be required to expend any funds) to negotiate and obtain fee simple title to or a long-term lease of the FDOT Triangular Area from FDOT. In the event that the City is able to secure title to or a long-term lease of the FDOT Triangular Area on terms and conditions acceptable to the Museum, the legal description of the MAM Site and the Leased Premises shall be deemed to include the FDOT Triangular Area, subject to the terms of the long-term lease or deed (if applicable). In the event that the City is unable to secure title to or a long-term lease of the FDOT Triangular Area, then the Museum shall modify the design of the Improvements (including, if necessary, repositioning the Improvements) to eliminate any encroachment on the FDOT Area, provided, however, that any such design modification shall not result in fewer than 400 parking spaces within the Parking Facility. To the extent that the repositioning of the Improvements requires an adjustment in the boundaries of the MAM Site, such adjustment may be made with the consent of the City (and the MAM Site, as so adjusted, shall be deemed the land leased hereunder). ARTICLE IV PURPOSE OF USE AND OCCUPANCY Section 4.1 Use of Leased Premises. The Museum agrees that the Leased Premises shall be known as the "Miami Art Museum" (as such name may be amended from time to time throughout the Term) and shall be used exclusively and continuously for the purposes set forth herein in accordance with the terms hereof, unless otherwise agreed to by the Parties in writing and approved by the City Commission. No use shall be made or permitted to be made of the Leased Premises, or acts done, which are in violation of any Applicable Law. The Leased Premises are to be utilized solely for the development, construction, management and operation 21 MIA 180,105,011v15 12-3-08 of the Project and the Improvements. The primary purpose of the Museum will be to exhibit, collect, preserve and interpret art, architecture and design, as such purposes may evolve over the Term of this Lease, for the education and the enjoyment of the general public (the "Primary Purpose"). The Museum programs and uses may include, without limitation, but in each case, in connection with the Primary Purpose, the following uses (the "Ancillary Uses"): permanent, temporary and traveling exhibitions lectures, symposia, performances, film and video screenings; educational activities (including, but not limited to, educational programs for school groups and general visitors, art festivals, art -related camps and art fairs; tours, demonstrations and workshops for families, parents, caregivers and the community at large; research activities and art -related classroom education), as such programs and uses may evolve over the Term of this Lease; other educational or patron -related business and service activities ancillary to or customary in the operation of Comparable Museums (such as, by way of example and not limitation, meeting spaces for community groups, philanthropic activities, museum gift shop, restaurant, cafe and other hospitality services for special events, such as museum receptions, corporate events, private celebrations, and community and governmental functions).. The Ancillary Uses may include commercial operations and commercial ventures (whether conducted by the Museum directly or through a joint venture, affiliate or other business structure), provided that such activities (i) do not cause the Museum to lose its designation as a 501(c)(3) corporation under the Internal Revenue Code, as amended, (ii) are consistent with activities conducted now or in the future by Comparable Museums, (iii) incorporate components of or provide support related to the Primary Purpose, and (iv) do not cause the MAM Site, which is exempt from ad valorem taxation because the Museum serves a "public purpose or function", to lose such exemption under Section 196.199(2) of the Florida Statutes (and any successor provisions). In no event shall the square foot area of interior space that is permanently dedicated to the commercial components of the Ancillary Uses (e.g. museum gift shop, cafe, restaurant, etc.) at any time exceed twenty percent (20%) of the square foot area of the interior space within the Museum, excluding in both cases the Parking Facility. Without the consent of the City Commission, the Museum shall not open, operate or allow to be operated a "school" in the Improvements. For these purposes, the term "school" shall mean a full-time program with a comprehensive (all subjects or vocational/trade) curriculum of sequentially progressive instruction designed for in - class (physical presence) attendance and meeting Florida educational requirements for the applicable grade level for any of pre -kindergarten through 12th grade. The Parties recognize that the Museum is an inherently educational institution and that all other Permitted Uses that do not meet the full definition of "school" hereunder are not restricted by this limitation. Nothing contained herein shall limit or restrict the Museum's ability to incorporate progressive and innovative initiatives as part of its programming, events and operations, provided that such initiatives further the Primary Purpose and, with regard to commercial ventures, meet the limitations for commercial ventures set forth above. The Primary Purpose and the Ancillary Uses are referred to herein collectively as the "Peiliiitted Uses". Section 4.2 General Operations. The Project shall be operated at all times, during Museum Hours, for the Primary Purpose for the use and benefit of the public, and all of the Project's facilities and services constituting Permitted Uses hereunder shall be made available to the public on fair and reasonable terms without discrimination and in accordance with this Lease and all Applicable Laws. The Museum shall conduct its operations in an orderly manner reasonably intended not to disturb or be offensive to customers, patrons or others in the 22 MIA 180,105,011v15 12-3-08 immediate vicinity of such operations. The Leased Premises shall not be used for any purpose other than the Permitted Uses set forth herein without the prior written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed so long as such other uses are in furtherance of, or in connection with, the Primary Purpose. This Lease and all rights of the Museum hereunder shall, at the option of the City, cease and terminate if the Museum uses the Leased Premises for any purposes not permitted herein, and such default is not cured after notice and the expiration of the cure period provided in Section 20 of this Lease. Section 4.3 Continuous Duty to Operate. Except where the Leased Premises are rendered untenantable by reason of fire or other casualty and subject to Unavoidable Delay, the Museum shall at all times during the term of this Lease following the Completion Date: (i) occupy the Leased Premises; (ii) continuously conduct operations in the Leased Premises in accordance with the Primary Purpose and the terms of this Lease; and (iii) keep the Leased Premises open for operation during Museum Hours, except for temporary closures during periods of maintenance and repairs, closures necessitated by the installation of exhibits, and other temporary and ordinary closures for Comparable Museums. The Museum shall remain an Accredited Museum, and shall be operated as a first class Accredited Museum, throughout the Term of this Lease. Section 4.4 Community Benefits. The purposes and uses of the Museum enumerated in Section 4.1 illustrate the unique and diverse benefits the Museum will provide to the community at large. The Parties acknowledge that the "Museum Park Community Benefits Committee" has been established, through directives of the City Commission and by Resolution No. R-08-0401 passed and adopted by the City Commission on July 10, 2008, for the purpose of providing community input into the overall development of and public benefits to be provided by the Museum Park Project, including the Museum. The Museum agrees to fulfill the community benefits recommended by the Museum Park Community Benefits Committee for the Project, which community benefits are outlined in Exhibit I attached hereto and made a part hereof, as same may be amended and/or supplemented from time to time by mutual consent of the Parties to the extent permitted by the Section 4.1. If, for any reason, the Museum experiences persistent and significant difficulty beyond the reasonable control of the Museum in fulfilling the community benefits outlined in Exhibit I, the Parties shall meet to address the problems and use good faith diligent efforts to resolve any issues and make appropriate adjustments. ARTICLE V INFRASTRUCTURE; SERVICES; REPAIRS Section 5.1 Infrastructure Improvements. The Museum shall provide all infrastructure required for the development, construction and operation of the Improvements, unless otherwise provided in the Development Agreement. Section 5.2 Utilities. The Museum, at its sole cost and expense, shall be responsible for all utilities used by or consumed at the Leased Premises, including but not limited to, electricity, telephone, water, gas, sewage disposal, stormwater fees, trash and garbage removal. 23 MIA 180,105, 011 v15 12-3-08 Section 5.3 Services. Except as otherwise expressly provided in the Management Agreement, the Museum shall, at its sole cost and expense, cause to be provided to the Project all services required to operate the Project on the Leased Premises as a first class Accredited Museum, including, but not limited to, heating, ventilation and air conditioning required in the Museum's judgment for the comfortable use and occupation of the Improvements; water and sewage service; pest control; exterior landscaping; exterior grounds maintenance and cleanup; security; and electric current for normal use and light. The services provided to the Improvements will be consistent with and subject to the Museum's "green" initiatives described in Section 5.7. Section 5.4 Maintenance and Repairs. Except as otherwise expressly provided in the Management Agreement, the Museum shall, at its sole cost and expense, (i) maintain the Improvements in good, clean working order and repair, and to a standard consistent with a first class Accredited Museum; (ii) repair components of the Improvements as a result of ordinary wear and tear; (iii) replace those components of the Improvements as and when necessary at the end of their useful life; (iv) perform all repairs and improvements required by Applicable Laws; and (v) perform any additional maintenance and repairs necessitated by the waterfront location of the Improvements. The Museum's maintenance and repair obligations hereunder shall include, without limitation, preventive maintenance, repairs and replacements, as necessary, to the Leased Premises and the Improvements, including, but not limited to, the pavement, driveways, lighting, mechanical equipment, fixtures, floor coverings, building interior and exterior walls, structural, roof, ceilings, plumbing, heating, air conditioning, electrical and life safety systems installed or furnished by the Museum, provided that maintenance and repairs that constitute Major Repairs shall be subject to the provisions of Article XI. The Museum shall not commit, or suffer to be committed, any waste in or upon the Leased Premises, which, in the City's sole but reasonable opinion, detracts from the appearance of the Leased Premises. All maintenance, repairs and replacements under this Lease shall be performed in a manner and level of service consistent with this Lease and Comparable Museums. Section 5.5 Preventative Maintenance and Services. Except as otherwise expressly provided in the Management Agreement or recommended by the Museum's qualified engineer, the Museum shall, at its sole cost and expense, provide (or cause to be provided) the following preventive maintenance and services: (a) Cleaning and janitorial services for the interior Improvements; (b) Grounds services including lawn, shrub and tree maintenance and removal of any rubbish or obstructions from the Leased Premises; (c) Interior and exterior window cleaning to be performed as needed but no less than once every one hundred and eighty (180) days; (d) Vermin control as necessary, but no less than once every sixty (60) days; (e) Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable; 24 MIA 180,105,011v15 12-3-08 (0 Painting of interior and exterior of buildings including caulking of all window and door frames, painting of signs and restriping of parking spaces, if applicable, on the MAM Site as necessary, but no less than once every five (5) years; and (g) Resurfacing or asphalting Museum Drive not less than once every (i) twenty (20) years, if Museum Drive is constructed in accordance with County standards for a public asphalt road, and (ii) ten (10) years, if Museum Drive is not constructed in accordance with such standards. In addition to the above, commencing during the fifth (5th) Lease Year following the Completion Date, and once every two (2) years thereafter, the Museum, at its sole cost and expense, shall have a qualified engineer perform a physical inspection of the Improvements including, but not limited to, all structural components, plumbing, life safety, electrical, heating and air conditioning systems, and mechanical equipment as part of a preventive maintenance program. The Museum shall submit the engineer's report along with a proposed plan for the funding and implementation of the recommendations contained in the engineer's report to the City by the end of the Lease Year in which such report is due for the City's review. If the Museum refuses, neglects or fails to perform its obligations hereunder, or does not perform such obligations in the manner required in this Lease, in each case within thirty (30) days after written demand from the City, then, in addition to its other rights and remedies hereunder, the City may take corrective measures to cause the Leased Premises to be cleaned, maintained or repaired, or otherwise perform the Museum's obligations hereunder, without waiving its right based upon any default of the Museum and without releasing the Museum from any ongoing obligations hereunder. If the City takes corrective measures hereunder, the Museum shall pay the City the full cost of such work within thirty (30) days of receipt of an invoice indicating the cost of such corrective measures. Failure to pay such invoice shall constitute a default of this Lease. Nothing herein shall imply that maintenance, repair and inspections should be performed by the Museum only at the suggested intervals. The Museum shall, at all times, be responsible for the condition of the Leased Premises (unless delegated to another party under the Management Agreement) and shall comply with all of its obligations hereunder in a timely manner so as to prevent injury to persons and waste to property. Section 5.6 Landscaping. The Museum shall plant and maintain the landscaping within the Leased Premises in accordance with the Museum Park Master Plan (if applicable), as modified or supplemented by any landscape plan submitted and approved with the Development Approvals. The Museum agrees to comply with any future landscaping guidelines that may be adopted for Museum Park set forth in the Management Agreement. If the Management Agreement delegates responsibility for the maintenance of common areas within Museum Park to a particular party (including without limitation landscaping and green areas within the MAM Site), then the responsibility for the maintenance of such landscaping, greenspace areas and other common areas shall be imposed on such party in lieu of the Museum. Section 5.7 Green Initiatives. The Museum shall design, construct, and operate the Project in accordance with environmentally friendly concepts and strategies that promote 25 MIA 180,105, 011 v15 12-3-08 resource and energy efficiency, healthy indoor environments, and the use of renewable natural resources. If and to the extent required by Applicable Law, the Museum shall pursue LEED certification (or functional equivalent) for the Project as may be required by Applicable Law, if any. Section 5.8 Management Agreement Terms. The Management Agreement will incorporate, at a minimum, the provisions specifically contemplated by the MOU to be addressed in the Management Agreement, to the extent not addressed or agreed to in this Lease and/or in the Development Agreement. To the extent that the terms and conditions of this Article V are inconsistent or conflict with the terms and conditions of the Management Agreement addressing the same subject matter, the tetras and conditions of the Management Agreement shall control. ARTICLE VI CONSIDERATION Section 6.1 Base Rent. From and after the Possession Date, the Museum shall pay to the City, in advance, Base Rent of TWO DOLLARS ($2.00) per Lease Year, payable in advance at the commencement of the Term (and any Renewal Term). The Base Rent shall be fixed for the Term (and any Renewal Terms) of this Lease. The Museum shall pay to the City the amount of any sales or similar tax imposed by the State of Florida, if applicable, or any subdivision thereon on the Rent and other charges payable by the Museum under this Lease. Such payments on account of sales or similar taxes shall be paid together with the corresponding amounts due under this Lease and the obligation to pay same shall survive the expiration or earlier termination of this Lease. Section 6.2 Additional Rent. In addition to the Base Rent, all other payments or charges payable by the Museum (if any), however denoted, are called "Additional Rent". All Additional Rent shall be paid when required under this Lease. Section 6.3 Interest on Late Payments. Any payment made by the Museum for any rent, fee or charge as required to be paid under the provisions of this Lease, which is not received by the City within ten (10) days after same shall become due, shall be subject to interest at the rate of twelve percent (12%) from the date such payment is due until such time as the payment is actually received by the City. Section 6.4 Place of Payment. Payment of the Base Rent, Additional Rent and all other charges deemed to be Rent under this Lease shall be without prior notice, deduction, offset or demand, shall be in lawful money of the United States of America and shall be made at the address set forth herein for the City or such other party or such other address as may be designated by the City from time to time. If the City shall at any time or times accept Rent after it shall become due and payable, such acceptance shall not excuse delay upon subsequent occasions, or constitute or be construed as a waiver of any or all of the City's rights hereunder. 26 MIA 180,105, 011 v15 12-3-08 ARTICLE VII IMPOSITIONS The Museum shall pay and discharge, as they become due, any and all Impositions, before any fine, penalty, interest or cost may be added to such Imposition. Should the Property Appraiser in and for Miami -Dade County deem that all or a portion of the Museum's use of the Leased Premises is not tax-exempt, then the Museum shall be responsible for payment of any and all taxes or assessments due and owing for the Museum's non -tax -exempted use(s) of the Leased Premises. In such event, the Museum shall have the right, at its sole cost and expense, to apply for a total or partial tax exemption from the Property Appraiser, if eligible. If the Museum intends to appeal an ad valorem tax or the assessment value of the portion of the Leased Premises subject to the tax, the Museum shall promptly give the City written notice of its intent to do so, accompanied by a surety bond or other form of security, as reasonably acceptable to the City, in an amount sufficient to pay one hundred percent (100%) of the contested tax, together with interest, costs, penalties and other expenses, including reasonable attorneys' fees, reasonably estimated to be incurred in connection therewith. Museum shall keep such surety bond or security in effect until the application for the exemption is resolved. ARTICLE VIII HAZARDOUS MATERIALS Section 8.1 Handling of Hazardous Materials. The Museum shall, at its sole cost and expense, at all times and in all respects in connection with its use of the Leased Premises, comply with all Environmental. Laws. The Museum shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all applicable permits, licenses and other governmental and regulatory approvals relating to the presence and use of Hazardous Materials within, on, under or about the Leased Premises. The City and the Museum agree that the Museum may use materials in normal quantities that are necessary for the construction of the Project and use of the Leased Premises for the purposes stated herein, provided that any such materials which are Hazardous Materials shall be handled strictly in accordance with, and be maintained at levels that are not in violation of any Environmental Laws. The Museum represents and warrants that it shall not use, handle, transport, dispose of or store in, on or under the Leased Premises any Hazardous Materials in connection with its operation of the Leased Premises except in conformity with all applicable Environmental Laws and prudent industry practices regarding the management of such Hazardous Materials. The Museum shall at all times during the Term and at the expiration of this Lease, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of a release of Hazardous Materials in or about the Leased Premises, caused by the placement of Hazardous Materials in or about the Leased Premises by the Museum or at the Museum's direction, or by the Museum's failure to comply with any Environmental Laws. Upon termination or expiration of the Lease, the Museum shall, at its sole cost and expense, cause all Hazardous Materials, including storage devices or tanks, placed in, about, or 27 MIA 180,105,011v15 12-3-08 under the Leased Premises by the Museum or its members or guests, or at the Museum's direction, to be removed from the Leased Premises and transported for use, storage or disposal in accordance and compliance with all applicable Environmental Laws. Section 8.2 Indemnification. Subject to Section 8.5, the Museum shall indemnify, protect, defend and hold the City free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and expenses (including reasonable attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, (i) by the presence in or about the Leased Premises of any Hazardous Material placed in, about, or under, or otherwise disposed of, dumped, discharged, or released at, about, or under, the Leased Premises by the Museum or at the Museum's direction; (ii) by the use, handling, storage, transportation, or disposal of any Hazardous Material by the Museum or at the Museum's direction; (iii) by the Museum's failure to comply with any Environmental Law; or (iv) in connection with any removal, remediation, cleanup, restoration and materials required to be performed by the Museum to return the Leased Premises to their condition existing prior to the appearance of the Hazardous Materials, except and to the extent that such environmental conditions or occurrences listed in subsections (i) through (iv) are exacerbated or augmented by any act or omission of the City or any of its employees or agent. The foregoing indemnity shall not cover any claims, liabilities, penalties, forfeitures, losses or expenses (a) resulting from environmental conditions existing at the Property prior to the Possession Date, (b) caused by the migration, escape or release of Hazardous Materials from the MAM Site prior to the Possession Date or any other portions of Museum Park (whether prior to, on or after the Possession Date), or (c) caused by the negligence or willful misconduct of the City or anyone acting by, through or under it, except and to the extent that such environmental conditions or occurrences with respect to the Leased Premises listed in subsections (a) through (c) are exacerbated or augmented by any act or omission of the Museum or any of its employees, agents, or business invitees who have a contractual arrangement with the Museum ("Exacerbated Condition"). Section 8.3 Notice Obligations. The Museum shall promptly notify the City, in writing, of any complaints, notices, warning, reports or asserted violations of which the Museum becomes aware relating to Hazardous Materials on or about the Leased Premises. The Museum shall also promptly notify the City if the Museum knows or has reason to believe a complaint, notice, warning, report or asserted violation will be asserted relating to Hazardous Materials on or about the Leased Premises. The Museum shall comply with all reporting and disclosure requirements under the applicable Environmental Laws. Section 8.4 Environmental Tests and Audits. At any time during the Term upon reasonable notice to the Museum, the City shall have the right, at its expense, to enter upon the Leased Premises in order to conduct appropriate tests as described below to establish whether the Leased Premises are in compliance with all applicable Environmental Laws. The Museum shall have the right to have a representative present during any such testing. The City shall not exercise its right to test the MAM Site under this provision more than one time every three (3) Lease Years, except that the City may exercise its right to conduct environmental testing (i) within three (3) months after notification by the Museum under Section 8.3 or notice from a third party of a documented violation of any Environmental Law, (ii) within a reasonable timeframe MIA 180,105,011v15 12-3-08 28 after the City concludes it has a reasonable basis to believe that a violation of Environmental Law has occurred on the site, or (iii) as otherwise required by Applicable Law. In the event that any test reveal a violation with applicable Environmental Laws, then the Museum shall immediately, upon written demand, reimburse to the City the reasonable cost of the test documenting the violation and only to the extent of the violation, unless such violation has been caused by (a) environmental conditions existing prior to the Possession Date, (b) the migration, escape or release of Hazardous Materials from the MAM Site prior to the Possession Date or any other portions of Museum Park (whether before or after the Possession Date), or (c), the negligence or willful misconduct of the City or anyone acting by, through or under it. Section 8.5 Excluded Environmental Conditions. Except and to the extent of any Exacerbated Condition, the Museum's obligations under this Article shall not include the handling or remediation of, or responsibility for, any adverse environmental condition existing on, under or about, or migrating, released or emanating from, the MAM Site, prior to the Possession Date (irrespective of whether such condition is discovered before or after the Possession Date). It is understood and agreed to by the Parties that the Museum shall have no obligation whatsoever with respect to any environmental condition existing prior to the Possession Date (including without limitation ongoing monitoring requirements in connection with any remediation of pre-existing environmental conditions affecting the MAM Site), except for (i) those obligations expressly assumed and agreed to by the Museum under the Environmental Remediation Agreement (if any) and (ii) except and to the extent of any Exacerbated Condition. The Museum's obligations under this Article shall also not include the handling or remediation of, or responsibility for, any adverse environmental condition at the MAM Site caused by (a) the migration, escape or release of Hazardous Materials from other portions of Museum Park, other than and to the extent of any Exacerbated Condition, or (b) by the negligence or willful misconduct of the City or anyone acting by, through or under it, other than and to the extent of any Exacerbated Condition. With respect to any and all Hazardous Materials and other environmental conditions addressed in the Environmental Remediation Agreement, the terms of the Environmental Remediation Agreement (and not this Lease) shall govern the responsibilities and obligations of the Parties with respect to same (including without limitation any ongoing monitoring requirements). In the event of a conflict between the terms of this Lease and the terms of the Environmental Remediation Agreement with respect to any environmental conditions existing at the MAM Site prior to the Possession Date, the terms of the Environmental Remediation Agreement shall govern and control. All of the provisions of this Article VIII are expressly qualified by the terms of this Section 8.5. Section 8.6 Pre -Existing Conditions. Other than for and to the extent of any Exacerbated Condition, the City covenants and agrees that it shall be responsible for any debts, liabilities, or obligations, claims, damages and, as they may result from a valid final judgment or decree against the Museum or from a settlement agreement agreed to by the City, reasonable costs and expenses (including without limitation attorneys' fees) of the Museum under any Environmental Laws arising out of or relating to the City's ownership or use or the condition of (i) the Property at any time prior to the Possession Date or any Hazardous Materials that were present on or released on or migrated or escaped or were released from the Property or otherwise existed at any time prior to the Possession Date, and (ii) the Park Component prior to, on and after the applicable Possession Date, including any Hazardous Materials that are or were present 29 MIA 180,105, 011 v15 12-3-08 on or released on or migrated or escaped or were released from the Park Component or otherwise exists or existed in the Park Component. Section 8.7 Survival of Museum's Obligations. The respective rights and obligations of the City and the Museum under this Article VIII shall survive the expiration or termination of this Lease. ARTICLE IX RECORDS AND AUDITING Section 9.1 Records Of Sales. During the Term of this Lease, the Museum shall maintain and keep, or cause to be maintained and kept at the Leased Premises, a full, complete and accurate daily record and account of all revenues and expenses arising or accruing by virtue of all operations conducted at or related to the Leased Premises, including, but not limited to, any grants, private donations, foundation support, admissions, gift sales, fees from subleases, licenses and concessions (if any), special events and/or other contributions to the Museum. All books and records, including invoices, sales slips, bank statements or duplicate deposit slips and all other supporting records, shall be available for inspection, copying and/or audit by the City and its duly authorized agents or representatives upon reasonable notice during the hours of 9:00 AM to 5:00 PM, on Business Days, and shall be maintained in accordance with generally accepted accounting principles. The Museum shall have the right to have a representative present during such audit. The Museum shall keep and preserve, or cause to be kept and preserved, its books and records for each Fiscal Year in accordance with Chapters 119 and 257 of the Florida Statutes (as amended). The Museum shall also retain copies of all payroll taxes, sales and tax returns covering its operations at the Museum for each Fiscal Year, and any other governmental tax or other returns which show the Museum's sales therein in accordance with said Chapters 119 and 257, Florida Statutes. The Museum will cooperate with the City and its auditors in order to facilitate the City's examination of records and accounts. Section 9.2 Audit. The Museum shall deliver (or cause to be delivered) to the City an audited financial statement on or before March 31st following the end of each Fiscal Year of the Museum's operations at the Leased Premises, prepared and certified by a CPA at the Museum's sole cost and expense. The CPA shall state that he or she made an independent audit of the financial statements of the Museum in accordance with auditing standards generally accepted in the United States of America. The CPA shall express an opinion as to whether the financial statements are prepared in accordance with accounting principles generally accepted in the United States of America, and present fairly, in all material respects, the financial position of the Museum for the period indicated therein. Such financial statements shall include all schedules and disclosures, such as by way of example information about grants, required by accounting principles generally accepted in the United States of America. The City reserves the right, at its sole cost and expense, to have its auditors confirm the results of the Museum's independent audit for any Fiscal Year for the period of time provided in and otherwise in accordance with Chapters 119 and 257 of the Florida Statutes (as amended). Any audit by the City shall be conducted in accordance with Applicable Law. 30 MIA 180,105, 011 v15 12-3-08 Section 9.3 Reports. The Museum shall submit on a yearly basis, simultaneous with its submission of an independent audit, an "annual report" to the City Manager or the City's Department of Public Facilities. In lieu of the annual report, the Museum may provide certain information required by way of substitute reports, submitted by the Museum to other governmental agencies, such as, by way of example, the County or the State of Florida, so long as such reports contain the information requested below. If the substitute reports do not contain all of the information below, the Museum shall also send an addendum providing the missing required information along with the substitute reports. In the event that such substitute reports are no longer required by such governmental agencies, then the Museum shall resume providing to the City Manager or the City's Department of Public Facilities an annual report containing the following information: (a) Prior Year's Programming: a list of actual significant exhibits, events and programs that occurred during the preceding year. (b) Proposed Programming: a list of proposed significant exhibits and programs to occur in the upcoming program year, with a proposed schedule of significant exhibits and events. (c) Prior Year's Actual Budget: actual expenses incurred and actual revenues earned by the Museum during the prior year, including expenses for personnel costs, IRS required details of the salary amounts for the highest paid salaried employees, insurance, operating costs, allocation for reserve funds for repairs/maintenance, and revenues derived from federal/state/local grant sources, foundations, private donations, museum admissions, gift sales, subleases/concession/licensees fees or revenues, and other sources of revenue. (d) Proposed Fiscal Year Budget: the Museum's proposed income/expense budget for the upcoming year, according to the following expense and revenue categories: personnel costs, insurance, operating costs, allocation for reserve funds for repairs/maintenance, and revenues derived from federal/state/local grant sources, foundations, private donations, museum admissions, gift sales, subleases/concession/licensees fees or revenues, and other sources of revenue. (e) Form 990. Internal Revenue Service Form 990 (IRS), as amended. (f) Attendance Figures: an actual count of museum patrons from the preceding calendar year, along with a detailed breakdown of visitors by the following categories: number of children/adults and paying/non-paying/discounted patrons (if available). (g) Community Benefits: a summary of the Museum's compliance with, and any issues related to performance of, the community benefits described in Exhibit I. 31 MIA 180,105,011v15 12-3-08 ARTICLE X LICENSES; COMPLIANCE WITH LAWS Section 10.1 Licenses and Permits. The Museum shall, at the Museum's sole cost and expense, obtain any and all licenses and permits necessary in connection with the Museum's use and occupancy of the Leased Premises and its maintenance of the Improvements and the Leased Premises. Section 10.2 Compliance with Laws. The Museum accepts this Lease and hereby acknowledges that the Museum's compliance with all Applicable Laws, ordinances and codes of federal, state and local governments, as they may apply to this Lease, including but not limited to building codes and zoning restrictions, is a condition of this Lease and the Museum shall comply therewith as the same presently exist and as they may be amended hereafter. ARTICLE XI ALTERATIONS AND MAJOR REPAIRS Section 11.1 Alterations. Except during the initial construction of the Project which shall be performed in accordance with the terms and conditions of the Development Agreement, the Museum shall not make or allow to be made any Major Alterations without first obtaining the written consent of the City. The City shall have the right to review and approve any Major Alteration solely to confiini that such Major Alteration (i) is in general conformity with the Museum Park Master Plan, (ii) complies with Applicable Laws, and (iii) is consistent with a first class Accredited Museum. The City shall grant or deny its consent of any Major Alteration within thirty (30) days of the Museum's request for approval, which request shall include conceptual plans for the proposed Alteration. Any denial of consent by the City shall be accompanied by a written explanation of the reasons for denial. If the City fails to respond to a request for approval of a Major Alteration within said 30-day period, and such failure continues for an additional ten (10) days following written notice from the Museum to the City, then the matter shall first be submitted to the Museum Park Steering Group for review and discussion in a good faith, collaborative manner pursuant to rules to be adopted by the Museum Park Steering Group for expedited dispute resolution, which rules shall be commercially reasonable and designed to effectuate the goals of the Museum Park Steering Group, including those specifically described in this Lease. In the event that the Parties are unable to resolve the dispute with the assistance of the Museum Park Steering Group, the matter shall be resolved in accordance with the arbitration process provided in Article XXVIII. The Museum shall be petiuitted to perform any other alterations to the Leased Premises which are not Major Alterations, including without limitation alterations to interior and exterior improvements and exhibits (collectively, "Permitted Alterations"), without the City's consent. Any construction undertaken in or to the Leased Premises shall be performed in accordance with this Article (including Section 11.3 and 11.4 hereof) and the other provisions of this Lease. Section 11.2 Major Repairs. The Museum shall make all Major Repairs in accordance with all applicable provisions of this Lease and Applicable Laws. If a Major Repair also constitutes a Major Alteration, then the Major Repair shall also be subject to and performed in accordance with the conditions and requirements of this Lease applicable to Major Alterations. 32 MIA 180,105,011v1512-3-08 Section 11.3 Conditions to Major Alterations and Major Repairs. In connection with the performance of any Major Alteration or Major Repair, the Museum shall comply with the following requirements (if applicable): (a) Prior to commencing any Major Alteration or Major Repair, the Museum shall submit to the City complete plans and specifications for the proposed work if required by Applicable Law for the work in question. (b) All Major Alterations and Major Repairs shall be perfoiined by licensed and insured contractors pursuant to Applicable Law. (c) The Museum shall require the contractor performing any Major Alteration or Major Repair to provide a payment and performance bond (or other similar security) if required by Applicable Law. (d) Prior to commencing any Major Alteration or Major Repair, the Museum shall obtain all permits and authorizations if required in connection with such work pursuant to Applicable Law. All such permits and authorizations shall be properly closed following completion of the Major Alteration or Major Repair. (e) All contractors performing any Major Alteration or Major Repair must procure such liability, builder's risk and other insurance as may be reasonably required by the City's Risk Management Department. (f) The Museum shall provide the City with evidence of funding for any Major Alteration or Major Repair prior to the commencement of such work. (g) All Major Alterations must be located wholly within the MAM Site unless otherwise agreed to by the City in writing. (h) Upon completion of any Major Alterations, the Museum agrees to deliver to the City a copy of the "as built" drawings of the Major Alterations, if the Major Alterations would customarily generate "as builts" and record any necessary notices to evidence completion as would be customary in the State of Florida. Section 11.4 General Requirements. Alterations which consist of mechanical, electrical, plumbing, air conditioning, permanent partition and ceiling tile work shall be performed by a licensed contractor if required under Applicable Laws. All Alterations, maintenance and repair performed or required of the Museum under this Lease shall be performed at the Museum's sole cost and expense. All work, with respect to any Alterations or repairs, must be done in a good and workmanlike manner and diligently prosecuted to completion. All Alterations, repairs and improvements to the Leased Premises shall be performed and completed in accordance with Applicable Laws. Section 11.5 Expansion of Improvements. The Museum shall have the right from time to time to expand the Improvements within the MAM Site with additional interior air- conditioned space (whether originally contemplated as a future phase of the Project or 33 MIA 180,105,011v15 12-3-08 subsequently conceived of by the Museum), with the prior written approval of (i) the City Manager (or his/her designee), if the proposed addition or expansion is in general conformance with the Museum Park Master Plan, or (ii) the City Commission, if the proposed addition or expansion is not in general conformance with the Museum Park Master Plan, provided that in no event shall the square foot area of interior space that is permanently dedicated to the commercial components of the Ancillary Uses (e.g. museum gift shop, cafe, restaurant, etc.) at any time exceed twenty percent (20%) of the square foot area of the interior space within the Museum excluding in both cases the Parking Facility. Any such addition to or expansion of the Improvements on the MAM Site shall be (a) deemed a Major Alteration, (b) developed and constructed in accordance with the terms and conditions applicable to the initial construction of the Project under the Development Agreement, including any procedure for the approval of plans contained therein, and (c) located wholly within the MAM Site unless otherwise approved by the City in writing. Section 11.6 Mechanics' Liens. The Museum shall not knowingly suffer or permit any mechanics' liens to be filed against the title to the Leased Premises, the Improvements or the Project, nor against the City's interest therein, nor against any Alteration, by reason of work, labor, services or materials supplied to the Museum or anyone having a right to possession of the Leased Premises, the Improvements, or the Project as a result of an agreement with or without the consent of the Museum. Nothing in this Lease shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific Alteration, or repair of or to the Leased Premises, the Improvements or the Project nor as giving the Museum the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics liens against the City's interest in the Leased Premises, the Improvements or the Project. If any mechanics' lien shall at any time be filed against the Leased Premises, the Improvements or the Project, the Museum shall cause it to be discharged of record within thirty (30) days after the date the Museum has knowledge of its filing. If the Museum shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding. The City shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the City shall constitute Additional Rent due and payable under this Lease and shall be repaid to the City by the Museum immediately upon rendition of any invoice or bill by the City. The Museum shall not be required to pay or discharge any mechanics' lien so long as the Museum shall (i) in good faith proceed to contest the lien by appropriate proceedings, (ii) have given notice in writing to the City of its intention to contest the validity of the lien, and (iii) furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim, together with all interest accrued thereon and all costs and expenses, including reasonable attorneys' fees, associated therewith. The City shall not be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Museum is so contesting such lien. 34 MIA 180,105, 011 v15 12-3-08 Section 11.7 Reserves. The Museum shall maintain reserves (which may be an allocation in its annual operating budget and not a separate account) for repairs and maintenance, including Major Repairs and Major Alterations, in accordance with good museum property management practices and as may be recommended by the Museum's qualified engineer. ARTICLE XII INSPECTION AND RIGHT OF ENTRY Section 12.1 Inspection by City. The City shall have the right to make periodic reasonable inspections of the Leased Premises and Improvements, upon reasonable advance notice and during normal Museum Hours, to determine if such are being maintained in a neat and orderly condition, and whether the Museum is operating in compliance with the terms and provisions of this Lease. The Museum agrees to include a provision acknowledging the City's right hereunder and under Section 12.2 in all subleases, concession agreement or licenses that it is permitted to enter into pursuant to this Lease. Section 12.2 City's Right of Entry. The Museum agrees to permit the City to enter upon the Leased Premises at all reasonable times upon advance written notice, for any purpose the City reasonably deems necessary to, incident to, or connected with the performance of the City's duties and obligations (or the City's exercise of its rights and functions) hereunder. The City's exercise of its rights under this Article XII shall not unreasonably interfere with the use and operation of the Project. ARTICLE XIII INDEMNIFICATION AND INSURANCE Section 13.1 Indemnification by Museum. The Museum shall indemnify, protect, defend and hold harmless the City, its officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Leased Premises, whether such claim shall be made by an employee or member of the Museum, an employee of the City, or by any third party, and whether it relates to injury to persons (including death) or damage to property; provided, however, that this indemnity shall not extend to or cover any claims, suits, actions, damages or causes of action (i) arising out of the negligence or willful misconduct of the City, or anyone acting by, through or under the City, or (ii) relating to Hazardous Materials or environmental conditions, the obligations of the Parties with respect to which are addressed in Article VIII. The Museum shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. The Museum shall further indemnify, defend, protect and hold the City harmless from and against any and all claims arising from any breach or default in performance of any obligation on the Museum's part to be performed under the terms of this Lease, or arising from any act, neglect, fault or omission of the Museum, its members, agents, contractors and employees, from and against all reasonable costs, attorneys' fees, expenses and liabilities incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against the City by reason of any claim covered by the Museum's indemnity hereunder, the Museum upon notice from the City shall defend the same at the Museum's 35 MIA 180,105,011v15 12-3-08 expense by counsel approved in writing by the City. The City reserves the right to defend itself, at the Museum's expense, provided that the cost of such defense (including attorneys' fees) are and shall be reasonable. The Museum shall promptly notify the City, in writing, upon obtaining knowledge thereof, of any claim or action filed, of whatever nature, arising out of the use or operation of the Leased Premises by the Museum, its members, agents, contractors or employees, which claim or action could result in liability for the City. The Museum shall also promptly notify the City if the Museum knows or has reason to believe a claim or action will be filed, of whatever nature, arising out of the use or operation of the Leased Premises by the Museum, its members, agents, contractors or employees, which claim or action could result in liability for the City. Section 13.2 Insurance. The Museum shall obtain and maintain, at its sole cost and expense, the following insurance coverage for the periods of time during the Tenn hereinafter specifically provided: (i) from the Possession Date through the MAM Commencement Date, the insurance coverage set forth in Exhibit F-1 of the Insurance Requirements; (ii) from the MAM Commencement Date through the Completion Date, the insurance coverage set forth in Exhibit F-2 of the Insurance Requirements; and (iii) from and after the Completion Date through the remaining Term of this Lease, the insurance coverage set forth in Exhibit F-3 of the Insurance Requirements, except that in connection with the performance of Major Alterations and Major Repairs, the Museum shall comply with the insurance requirements of the City's Risk Management Department as provided in Section 11.3. The Museum shall not be required to carry terrorism insurance under any circumstances, anything herein or in the Insurance Requirements to the contrary notwithstanding. The following provisions shall apply to the insurance coverage carried by the Museum hereunder: (a) The City shall be included as an additional insured on all commercial general and umbrella/excess liability policies of insurance. The City be included as a loss payee on all builder's risk and all risk property insurance policies. (b) The City reserves the right to amend the Insurance Requirements by the issuance of a notice in writing to the Museum, provided that any new or amended insurance requirements must be reasonable and consistent with industry standards for similar uses and facilities. Revised insurance requirements which meet the foregoing conditions shall become part of the Insurance Requirements under this Lease. (c) The policy or policies of insurance required shall be written so that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the address indicated herein for the City or to such other address as may be designated by the City from time to time by written notice to the Museum and its insurer(s). (d) A current evidence of insurance and policy of insurance evidencing the aforesaid required insurance coverage shall be supplied to the City on or before the Possession Date, MAM Commencement Date and the Completion Date (as applicable) and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Notwithstanding the foregoing, insurance 36 MIA 180,105, 011 v15 12-3-08 policies may be provided as soon as same are available, in the event the insurance is bound, but actual policies have not been issued by the dates specified. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated no less than "A" as to management, and no less than Class "V" as to financial strength, in accordance with the latest edition of Best's Insurance Key Rating Guide published by A.M. Best Company (or its successor) or other comparable recognized rating company. Receipt of any documentation of insurance by the City or by any of its representatives which indicates less coverage than required does not constitute a waiver of the Museum's obligation to fulfill the insurance requirement herein. In the event the Museum shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by the Museum to the City as Additional Rent upon demand and in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Failure to pay such amount within the time frame provided shall constitute a default of this Lease as provided in Section 20.1 below. The Museum's failure to procure insurance shall in no way release the Museum from its obligations and responsibilities as provided herein. Section 13.3 Waiver of Subrogation. The Museum waives all rights to recover against the City or its officers, employees, agents and representatives, for any damage arising from any cause covered by any insurance required to be carried by the Museum, or any insurance actually carried by the Museum. The Museum shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements to all policies of insurance carried in connection with the Leased Premises. The City waives all rights to recover against the Museum, its officers, directors, trustees, employees, agents and representatives, for any damage arising from any cause covered by insurance (irrespective of whether the insurance is carried by the Museum or the City). The City shall cause its insurer(s) to issue appropriate waiver of subrogation rights endorsements in favor of the Museum to all policies of insurance (if any) carried in connection with Museum Park. Any self-insurance program of the City shall be deemed to include a full waiver of subrogation consistent with this Section. Section 13.4 No Liability of City. Except to the extent caused by the negligence or willful misconduct of the City or anyone acting by, through or under the City, the City shall not be liable for injury or damage which may be sustained by a person, goods, wares, merchandise or other property of the Museum, or the Museum's employees, invitees, officers, agents and customers, or by any other person in or about the Leased Premises caused by or resulting from any peril which may affect the Leased Premises, including, without limitation, fire, steam, electricity, gas, water or rain, which may leak or flow from or into any part of the Leased Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires or plumbing to the Leased Premises, whether such damage or injury results from conditions arising upon the Leased Premises or from other sources. 37 MIA 180,105, 011 v15 12-3-08 ARTICLE XIV DAMAGE AND DESTRUCTION Section 14.1 Destruction of Leased Premises. If the Improvements shall be damaged by fire or other casualty, the Museum shall promptly notify the City of such damage, shall properly secure the damaged Improvements (taking into consideration the severity of the damage and the location of the property in a public park) and, subject to the provisions of Section 14.2 through 14.4 below, shall at its sole cost and expense, after settling any insurance claim, proceed with reasonable diligence, but in no event later than one hundred eighty (180) days following receipt of insurance proceeds, or three hundred sixty-five (365) days following the casualty, to commence to rebuild, replace and repair the Improvements to a condition comparable to the condition that existed prior to the casualty (hereinafter referred to as the "Reconstruction Work"). The Museum shall diligently and continuously pursue the Reconstruction Work as expeditiously as reasonably possible given the extent of the repairs required, subject to Unavoidable Delay. Failure to commence or diligently and continuously pursue the completion of the Reconstruction Work within the time herein stipulated and as herein required, subject to Unavoidable Delay, shall constitute a default under this Lease and give the City the right to terminate this Lease, if such default is not cured after notice and the expiration of the cure period provided in Section 20.1 (as provided in Section 14.3). For purposes of this Article, commencement of the Reconstruction Work shall be deemed to include preparation of plans for the Reconstruction Work. All Rent due hereunder shall abate after the occurrence of a casualty until the date that the Reconstruction Work on the Leased Premises is completed. Section 14.2 Museum's Option to Telininate Lease. If (a) fifty percent (50%) or more of the gross floor area of the Improvements are damaged or destroyed as a result of a casualty and twenty-five percent (25%) or more of the Reconstruction Work is not covered by the Museum's insurance, or (b) twenty-five percent (25%) or more of the gross floor area of the Improvements are damaged or destroyed in whole or in part during the last five (5) years of the Term, or (c) the cost of the Reconstruction Work exceeds the insurance proceeds available for the repairs by more than $15,000,000 for any reason other than the Museum's failure to comply with the Insurance Requirements (whether resulting from any insurance company's failure to pay, any Leasehold Mortgagee's application of the insurance proceeds to the repayment of the Leasehold Mortgage or otherwise), or (d) due to causes outside of the Museum's reasonable control, the Museum is unable to obtain all of the governmental approvals required under Applicable Laws for the Reconstruction Work, or (e) the Museum reasonably determines that the damaged Improvements cannot be repaired, replaced or restored within six (6) years following the occurrence of the casualty, then, in any of such events, the Museum may elect to terminate this Lease by giving to the City notice of such election within one hundred twenty (120) days after the occurrence of the casualty. If such notice is given, subject to the teinis of Sections 14.5, 20.9 and other applicable provisions of this Lease, the rights and obligations of the parties shall cease as of the date of such notice, and Rent (other than any Additional Rent due the City by reason of the Museum's failure to perform any of its obligations hereunder prior to the date of such notice) shall be adjusted as of the date of such casualty. Section 14.3 City's Option to Terminate Lease. If the Improvements are damaged or destroyed in whole or in part and the Museum fails to commence or diligently and continuously 38 MIA 180,105, 011 v15 12-3-08 pursue the Reconstruction Work as required under Section 14.1 above, subject to Unavoidable Delay, then, if such failure continues after notice and the expiration of the cure period provided in Section 20.1(a)(ii), then, in addition to the City's remedies for an Event of Museum's Default, the City may elect to terminate this Lease by giving to the Museum written notice of such election within thirty (30) days after the date of the Event of Museum's Default. If such notice is given, subject to the terms of Sections 14.5, 20.9 and other applicable provisions of this Lease, the rights and obligations of the parties shall cease as of the date of such notice, and the Museum shall immediately vacate the Leased Premises as if the Term had expired. If the Museum reasonably determines that the damaged Improvements cannot be repaired, replaced or restored within six (6) years following the occurrence of the casualty, then the Museum shall so notify the City within one hundred twenty (120) days after the occurrence of the casualty and, in such event, the City may elect to terminate this Lease by giving to the Museum notice of such election within thirty (30) days thereafter. If such notice is given, subject to the terms of Sections 14.5, 20.9 and other applicable provisions of this Lease, the rights and obligations of the parties shall cease as of the date of such notice, and Rent (other than any Additional Rent due the City by reason of the Museum's failure to perform any of its obligations hereunder prior to the date of such notice) shall be adjusted as of the date of such casualty. Section 14.4 Demolition and Reconstruction. If the Improvements shall be so substantially damaged that it is reasonably necessary in the Museum's judgment to demolish the Improvements for the purpose of reconstruction, the Museum may demolish the same. All Reconstruction Work under this Article XIV shall be performed by the Museum in compliance with the terms and conditions of this Lease governing Major Repairs and Major Alterations; provided, however, that (i) in the case of any casualty prior to the Completion Date, and (ii) in the case of a casualty after the Completion Date that damages or destroys more than fifty percent (50%) of the gross floor area of the Improvements, the Museum's restoration and reconstruction of the Improvements shall be performed under the same terms and conditions applicable to the initial construction of the Project under the Development Agreement, except to the extent the provisions thereof may no longer apply (such as, by way of example, requirements for particular Development Approvals). Notwithstanding anything to the contrary set forth in this Article, if all or any portion of the damaged Improvements have become obsolete or out-of-date, whether due to age, utility or otherwise, the Museum shall not be required to reconstruct the same Improvements, but may replace or eliminate same as it deems appropriate, provided that the resulting Improvements (x) are in general conformity with the Museum Park Master Plan, (y) comply with Applicable Laws, and (z) are consistent with a first class Accredited Museum. Furthermore, in the event the insurance proceeds are insufficient to complete the Reconstruction Work, the Museum shall have the right to modify (and reduce) the size and scope of the Project to take into account the amount of insurance proceeds available for restoration and repairs. Modifications and Alterations to the Improvements as a result of the foregoing circumstances shall be incorporated into the term "Reconstruction Work" for purposes hereof without need for approval from the City, except to the extent approvals would otherwise be required under the terms of the Development Agreement. Section 14.5 Insurance Proceeds. If this Lease is not terminated pursuant to Sections 14.2 or 14.3, the Museum shall disburse and apply any insurance proceeds received by the Museum (or any separate funds of the Museum, if the insurance proceeds are insufficient) to the MIA 180,105,011v1512-3-08 39 Reconstruction Work, and the Museum's exhibits and related improvements in accordance with this Article. If this Lease is terminated pursuant to Section 14.2 or 14.3, then the Museum shall, at the option of the City, either secure the MAM Site to minimize injury to persons or raze the Improvements, fill the MAM Site with clean appropriate fill or dirt (to fill areas disturbed by the Museum or the casualty only) and leave it as a level, cleared vacant lot. All insurance proceeds from any insurance policies carried by the Museum shall be paid to the Museum, subject to any rights of any Leasehold Mortgagee. ARTICLE XV EMINENT DOMAIN Section 15.1 Complete Permanent Taking. If the whole of the Leased Premises, or a material portion thereof such that the Museum shall be of the good faith opinion that it is not economically feasible to effect restoration thereof, is taken under power of eminent domain or sold, transferred or conveyed in lieu thereof, this Lease shall terminate and become null and void on the date the Museum is required to yield possession thereof to the condemning authority. Upon said termination, the parties shall be relieved of all duties, obligations and liabilities arising under this Lease from and after the date of termination. Upon the commencement of any condemnation action with regard to the Leased Premises, the Parties shall cooperate with each other and undertake all commercially reasonable efforts to defend against, and maximize the condemnation award from such condemnation action. Each Party shall have the right, at its own expense, to appear and participate in any condemnation action affecting the Leased Premises. In each such action: (a) the Museum shall have the right to assert a claim for, and receive all condemnation awards for, (i) the value of the leasehold estate created under this Lease (including without limitation all of the estate, rights and interest of the Museum in and to the Leased Premises and any other rights of the Museum, in each case arising under or growing out of this Lease) for the balance of the Lease Term, assuming all of the Renewal Terms had been exercised, (ii) the value of any of its property taken or damaged as a result of the condemnation action, (iii) any damage to, or relocation costs of, the Museum's business as a result of the condemnation action, and (iv) any other damages to which the Museum may be entitled under Applicable Law, and (b) the City shall have the right to assert a claim for, and receive all condemnation awards for, (i) the loss in value of its rights hereunder as if this Lease had not terminated and were renewed for all of the Renewal Terms, (ii) the value of any of the City's property taken or damaged as a result of the condemnation action, and (iii) any other damages to which the City may be entitled under Applicable Law. Section 15.2 Partial Permanent Taking. In the event that less than all of the Leased Premises shall be taken by condemnation or deed in lieu thereof and the Museum shall be of the good faith opinion that it is economically feasible to effect restoration thereof, 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 Leased Premises not so taken. The Museum shall restore the Project so that it will be comparable to the Project prior to the condemnation, taking into consideration the fact of the condemnation, subject to availability of the condemnation award. All costs and expenses of restoration of the Project after a taking shall be paid from the condemnation award. If the condemnation award is not sufficient to pay such costs and expenses for any reason (whether as a result of the application of the award by a Leasehold Mortgage to the repayment of the 40 MIA 180,105,011v15 12-3-08 Leasehold Mortgage or otherwise), the Museum may elect to terminate this Lease. All condemnation awards payable as a result of or in connection with any partial permanent taking of the Leased Premises hereunder, and not used for restoration as provided herein, shall be paid to the Museum and the City in proportion to the value of their respective interests in the Leased Premises and the Project at the time of the taking as found by the court or jury in its condemnation award. Section 15.3 Temporary Taking. In the event of temporary taking of all or any portion of the Leased Premises for a period of one (1) year or less, then this Lease shall not terminate. The Museum shall be entitled to receive the entire award made in connection with any such temporary taking. ARTICLE XVI ASSIGNMENTS AND SUBLETTING Section 16.1 Assignment and Subletting of Leased Premises. Except as specifically provided in Article XVII and Section 16.2 below, the Museum shall not, at any time during the Term of this Lease, transfer, assign or sublet this Lease, the term or estate hereby granted, or any interest hereunder, nor enter into any license or concession agreements with respect thereto, nor permit any third party or parties other than the Museum, its authorized agents, employees, invitees and visitors to occupy the Leased Premises or any portion thereof (hereinafter individually and collectively referred to as a "Transfer") without first procuring the written consent of the City, which consent may be granted, conditioned or withheld in the sole discretion of the City. Any such Transfer, without the City's prior written consent, shall be void and of no force or effect, shall not confer any interest or estate in the purported transferee ("Transferee"), shall constitute a default under this Lease and shall peiniit the City, at its election, to terminate this Lease. For purposes of this Section, any change in the status of the Museum so that it shall cease to be a not -for -profit entity shall constitute an unauthorized Transfer. Notwithstanding the foregoing, the City recognizes that the Museum may assign this Lease to, or may otherwise merge or consolidate its operation with, or transfer all of its assets to, another not -for -profit art museum organization. Such assignment, merger, consolidation or transfer shall not be subject to the consent of the City, provided that (a) the transaction is for a bona fide business purposes, (b) the Leased Premises will continue to be used for or in connection with the Primary Purpose, (c) the City is notified in writing of the proposed transaction not less than fifteen (15) days in advance of the actual transfer, and (d) the Museum has provided to the City, for its review, 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 and evidence of non-profit status. It is agreed that all terms and conditions of this Lease shall extend to and be binding on all Transferees, subject to approval by the City (to the extent such approval is required hereunder). Unless released by the City or released under Section 16.3, the Museum shall be liable for acts and omissions by any Transferee affecting this Lease. The City reserves the right to directly terminate any Transferee for any cause for which the Museum may be teiiuinated. 41 MIA 180,105, 011 v15 12-3-08 The Museum shall reimburse to the City, as Additional Rent, all reasonable costs and expenses, including reasonable attorneys' fees, which the City incurs by reason of or in connection with a Transfer, and all due diligence, negotiations and actions with respect thereto, such Additional Rent to be due and payable within thirty (30) days of receipt of a statement of such costs and expenses from the City. Section 16.2 Permitted Transfers. The City recognizes that the Museum may not operate on its own certain elements of the Project, such as the restaurant, cafe and museum gift shop. Accordingly, notwithstanding the terms of Section 16.1, the Museum shall be entitled to enter into subleases, licenses, concession agreements, management agreements, employment and other similar agreements and arrangements with a Transferee for the purpose of implementing any use, operation or activity permitted under this Lease, without the consent of the City. By way of example (and not limitation), the Museum may enter into a separate license, concession or operating agreement with a third party for the purpose of operating the commercial areas, without the consent of the City, so long as the agreement governing the relationship of the Museum and such party (i) automatically terminates if this Lease is terminated for any reason, (ii) requires such party to carry insurance customary for similar operators and operations and shall list the City as Additional Insureds, (iii) is subordinate to this Lease, (iv) provides for a use or service expressly permitted under this Lease, (v) requires such party to comply with the community benefits set forth in Exhibit I, but only if and to the extent the community benefits (or any of them) are applicable to the permitted use and business operations of such party under its agreement, (vi) includes right of inspection and entry in favor of the City similar to Sections 12.1 and 12.2, (vii) requires such party to comply with all Applicable Laws, and (viii) acknowledges that the City is not in privity with such party. The Museum shall notify the City's Risk Management Department on a current basis, and shall provide a summary for the preceding Lease Year by March 31st of each Lease Year, of any new subleases, licenses, concession agreements, management agreements, employment and other similar agreements entered into by the Museum, and shall provide the City with copies of the relevant agreement and evidence of insurance consistent with Section 16.2(ii) above. Any sublease, license, concession agreement, management agreement, employment and other similar agreement entered into in violation of this provision shall be null and void. Section 16.3 No Release of Museum. Any assignment, sublease, pledge, encumbrance of this Lease or Transfer in violation of this Lease or without the City's prior written consent (when consent is required under the terms hereof), shall at the option of the City, constitute a default of this Lease. A Transfer of all of the Museum's interest under this Lease permitted by this Article XVI and approved by the City shall release the Museum from the obligation to pay the Base Rent, Additional Rent and to perform all other obligations of the Museum under this Lease subsequent to the effective date of the Transfer. The City's acceptance of Rent from any other person is not a waiver of any provision of this Article XVI. Consent to one transfer is not a consent to any subsequent transfer. If the Museum's Transferee defaults under this Lease and the Museum has not otherwise been released from liability hereunder, the City may proceed directly against the Museum without pursuing remedies against the Transferee, or against the Transferee and then also proceed directly against the Museum under this Lease. Any action by the City against the Museum shall not release the Transferee. The City may consent to subsequent Transfers or modifications of this Lease by the Museum's Transferee, 42 MIA 180,105,011v15 12-3-08 without notifying the Museum or obtaining its consent. Such action shall not relieve the Museum's liability under this Lease or the liability of the Transferee. Section 16.4 Event of Bankruptcy. (a) If this Lease is assigned to any person or entity pursuant to the provision of the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq. or any successor thereto (the "Bankruptcy Code"), any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment (excluding, however, monies or other consideration paid for or associated with the Improvements, which shall remain the property of the Museum or the estate of the Museum) shall be paid or delivered to the City, shall be and remain the exclusive property of the City, and shall not constitute the property of the Museum or of the estate of the Museum within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting the City's property under this Section not paid or delivered to the City shall be held in trust for the benefit of the City and shall be promptly paid or delivered to the City. Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment, including, but not limited to, the obligation to use the Leased Premises for the Primary Purpose; it being understood and agreed that the Leased Premises are required under both the City's Charter and the Building Better Communities GOB Agreements to be used for a public purpose and have been leased by the City to the Museum to be used for the Primary Purpose. Any use of the Leased Premises in violation of the provisions of this Lease shall result in the immediate, automatic termination of this Lease if such default is not cured after notice and the expiration of the cure period provided in Section 20.1(a)(ii); it being the intent of this Lease that the Leased Premises be used at all times exclusively for the Primary Purpose and the Permitted Uses herein authorized. (b) In the event this Lease is assumed by or assigned to a debtor or trustee pursuant to the provisions of the Bankruptcy Code, such debtor or trustee shall cure any default under this Lease and shall provide adequate assurances of future performance of this Lease (including without limitation compliance with the requirement to use the Leased Premises for the Primary Purpose) as required by and in accordance with the Bankruptcy Code (including, but not limited to, the requirement of Section 365(b)(1) thereof). If the debtor or trustee does not cure such default and provide such adequate assurances in accordance with and within the applicable time periods required by the Bankruptcy Code, or in the event that the Leased Premises ceases to be used for the Primary Purpose, then this Lease shall be deemed rejected automatically and the City shall have the right immediately to possession of the Leased Premises and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach or termination of this Lease. 43 MIA 180,105,011v15 12-3-08 ARTICLE XVII MORTGAGE FINANCING; RIGHTS OF MORTGAGEE Section 17.1 Leasehold Mortgages. The Museum, and any successor or assign of the Museum, may from time to time pledge, mortgage or encumber the Leasehold Estate and any other interests of the Museum under this Lease to a Leasehold Mortgagee. Any such pledge, mortgage or encumbrance upon the Leasehold Estate demised hereunder, as the same may be extended, modified, amended or replaced, is herein referred to as a "Leasehold Mortgage." The Museum's right to place a Leasehold Mortgage against the Museum's leasehold estate is subject to the Museum not being in default under this Lease beyond applicable notice and cure periods at the time a Leasehold Mortgage is made and the other "Leasehold Mortgage Conditions" set forth in Section 17.2 below. Any Leasehold Mortgage shall by its terms be made expressly subject to all of the City's rights under the provisions, covenants, conditions, exceptions and reservations herein contained. The Leasehold Mortgage documents shall expressly provide that the Leasehold Mortgagee notify the City of default by the Museum under the Leasehold Mortgage prior to commencing foreclosure proceedings. The City shall not be bound to recognize any Leasehold Mortgagee or to give any Leasehold Mortgagee the notices, rights and protections contemplated under this Lease unless such Leasehold Mortgagee or the Museum shall have notified the City of the existence of such Leasehold Mortgage and of the name and United States address of such Leasehold Mortgagee. The Museum shall deliver to the City promptly after execution by the Museum a true and verified copy of any Leasehold Mortgage, and/or any amendment, modification or extension thereof, together with the name and address of the owner and holder thereof. Section 17.2 Leasehold Mortgage Conditions. The Museum's right to encumber the Leased Premises with a Leasehold Mortgage shall be subject to the following conditions: (a) Permitted Financing. The Museum shall be entitled to obtain financing secured by a Leasehold Mortgage for the following purposes without the consent of the City: (i) Cash Flow Revolver. The Museum shall be entitled to encumber the Leased Premises with a Leasehold Mortgage securing a term or revolving loan in the maximum principal amount of $15,000,000.00, the proceeds of which shall be used to finance the short term cash flow needs of the Museum during the initial construction of the Project resulting from the funding of the Building Better Communities GOB Agreements or other public funds on a reimbursement basis only, which loan may increase and decrease from time to time but shall not exceed a maximum amount outstanding at any one time of $15,000,000.00. Advances under the Cash Flow Revolver shall be repaid promptly after receipt of the reimbursements under the Building Better Community GOB Agreements or other public funds, as applicable. (ii) Skipped GOB Revolver. The Museum shall be entitled to encumber the Leased Premises with a Leasehold Mortgage securing a term or revolving loan in the maximum principal amount of $60,000,000.00 to finance the costs of initial construction of the Project during any period in which the bonds under the Miami -Dade County Building Better Communities General Obligation Bond Program are not issued. 44 MIA 180,105,011v15 12-3-08 The amount of this loan shall be limited to the lesser of (i) the amount of such bond funding that was scheduled to be funded to the Museum for the skipped period, or (ii) $60,000,000.00, which is currently the maximum amount scheduled to be funded under the Miami -Dade County Building Better Communities General Obligation Bond Program to the Museum for any annual period. Advances under the Skipped GOB Revolver shall be repaid promptly after the skipped bonds are issued and funds are received by the Museum under the applicable Building Better Communities GOB Agreements. The Museum shall not be entitled to draw on the Cash Flow Revolver for any skipped funds under any Building Better Communities GOB Agreements during any period when advances are being made under the Skipped GOB Revolver for such skipped funds. (iii) Expansion Financing. The Museum shall be entitled to encumber the Leased Premises with Leasehold Mortgages securing term or revolving loans in the same form (with the same limitations) as the Cash Flow Revolver and the Skipped GOB Revolver to finance the costs of construction of expansion of the Museum pursuant to Section 11.5 of this Lease. In connection with such an expansion, the Skipped GOB Revolver -type portion of the Expansion Financing shall be expanded to apply to any committed governmental funds or grants evidenced by a signed agreement and, accordingly, shall apply to the Miami -Dade County Building Better Communities General Obligation Bond Program as well as such other committed governmental funds or grants. (iv) Casualty Financing. The Museum shall be entitled to encumber the Leased Premises with a Leasehold Mortgage securing a bridge loan in the maximum principal amount of the lesser of (x) seventy-five percent (75%) of the maximum stated amount of insurance coverage for the casualty in question, or (y) $60,000,000, to finance the costs of Reconstruction Work after a fire or other casualty while insurance claims and settlements are pending. The purpose of Casualty Financing is to avoid delay in construction after a casualty due to negotiation of settlements with insurance companies. Any Casualty Financing shall be repaid by the Museum promptly after receipt of insurance proceeds. (v) Capital Repair Financing. After the Completion Date, the Museum shall be entitled to encumber the Leased Premises with a Leasehold Mortgage securing a term or revolving loan in the maximum principal amount of $15,000,000.00, the proceeds of which may be used to finance capital repairs or improvements to the Project, provided that the Museum first obtains the consent of the City Manager to such financing, which may be conditioned on the approval of the City Commission. The proceeds of Capital Repair Financing may also be used to fund the costs of restoration, repairs and reconstruction of the Improvements after a casualty, but only if the proceeds of insurance maintained by the Museum in accordance with the terms of this Lease are not sufficient to cover the restoration costs. Proceeds of the Capital Repair Financing shall not be used for any purpose not specifically permitted in this Section. (b) All loans secured by Leasehold Mortgages permitted hereunder shall be on commercially reasonable terms. In no event shall the outstanding principal 45 MIA 180,105,011v15 12-3-08 amount of any loans secured by Leasehold Mortgages exceed $60,000,000 in the aggregate at any given time. (c) The Museum may not encumber the Leasehold Estate as security for any indebtedness of the Museum the proceeds of which are used to finance any other property (i.e. other than the Leased Premises) now or hereinafter owned or operated by the Museum. (d) The term "promptly", when used in this Section 17.2 relating to the repayment of loan proceeds, shall mean no later than ninety (90) days after receipt of funds for such repayment. (e) Except as otherwise expressly provided in Section 17.2(a), all other leasehold financing shall require the consent of the City. Section 17.3 Rights of Leasehold Mortgagees. The City hereby agrees with and for the benefit of each Leasehold Mortgagee and the successors and assigns of each Leasehold Mortgagee: (a) When giving notice to the Museum with respect to any default under this Lease or any exercise of any right to terminate this Lease, the City, if so requested by a Leasehold Mortgagee under Section 17.1 above, will also give a copy of such notice to each Leasehold Mortgagee at the address of each Leasehold Mortgagee furnished to the City, and no such notice to the Museum shall be deemed to have been duly given nor shall such notice be effective unless such notice is also given in said manner to each such Leasehold Mortgagee. (b) In case the Museum shall default in respect of any of the provisions of this Lease, any Leasehold Mortgagee shall have the right, but not the obligation, to cure such default whether the same consists of the failure to pay Base Rent or the failure to perform any other covenant which the Museum is required to perform under this Lease, and the City shall accept performance by or on behalf of such Leasehold Mortgagee as though, and with the same effect as if, the same had been done or performed by the Museum. A Leasehold Mortgagee will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to the Museum under this Lease in respect of the specified default after the giving of such notice to the Museum, plus an additional period of thirty (30) days. In the event of a default (or in the event that the City is seeking to terminate this Lease by reason of a default) which is curable without Leasehold Mortgagee being in possession and control of the Improvements, but cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Leasehold Mortgagee is diligently and continuously proceeding to attempt to cure such default, provided that the Leasehold Mortgagee has begun proceedings to cure the default within the said period. In no event shall a default due to a failure to pay Base Rent or Additional Rent be deemed a default which cannot be reasonably cured within such additional period of thirty (30) days. 46 MIA 180,105, 011 v15 12-3-08 (c) With respect to any nonmonetary default by the Museum under this Lease that is not susceptible of being cured by the Leasehold Mortgagee without being in possession and control of the Improvements, the City shall take no action to terminate this Lease on account of such default if, within ninety (90) days after notice of the default from the City (subject to any bankruptcy stays), the Leasehold Mortgagee shall have commenced appropriate proceedings to obtain possession of the Leased Premises (including possession by a receiver) or to foreclose the Leasehold Mortgage or otherwise to acquire the Museum's interest under this Lease and the Leased Premises, and shall thereafter be prosecuting the same to completion in good faith, with diligence and continuity (subject to any bankruptcy stays); provided, however, that: (i) the Leasehold Mortgagee shall not be obligated to continue any such possession or to continue such foreclosure proceedings or other action after the default shall have been cured; (ii) the City shall not be precluded from exercising any rights or remedies with respect to any other default by the Museum under this Lease during the pendency of such foreclosure proceedings; (iii) during the period of the City's forbearance, the Leasehold Mortgagee shall comply with such of the terms, covenants and conditions of this Lease as are then susceptible of compliance by the Leasehold Mortgagee; (iv) if and after the Leasehold Mortgagee obtains possession of the Leased Premises or acquires the Museum's interest under this Lease, the Leasehold Mortgagee shall promptly commence and diligently pursue the curing of all defaults under this Lease then susceptible of being cured by the Leasehold Mortgagee, and all other defaults of the Museum not then susceptible of being cured by the Leasehold Mortgagee shall be deemed to have been waived by the City upon completion of such foreclosure proceedings or acquisition by the Leasehold Mortgagee; and (v) if a third party acquires the Museum's interest under this Lease at the foreclosure sale, such party shall promptly commence and diligently pursue the curing of all defaults under this Lease then susceptible of being cured by such party, and all other defaults of the Museum not then susceptible of being cured by such party shall be deemed to have been waived by the City upon such acquisition. Notwithstanding the foregoing, in no event shall the obligation to continuously operate the Leased Premises for the Primary Purpose and Permitted Uses be deemed a default not susceptible of being cured by the Leasehold Mortgagee or a third party acquiring the Museum's interest under this Lease at a foreclosure sale. Further, prior failure to continuously operate the Leased Premises for the Primary Purpose and Permitted Uses shall be deemed a default that has not been waived if such failure is not cured by such Leasehold Mortgagee or such third party promptly upon completion of the foreclosure proceeding or other acquisition by the Leasehold Mortgagee, or a third party, as such obligation is fundamental to this Lease. (d) A Leasehold Mortgagee (or its designee or nominee) may become the legal owner and holder of the interest of the Museum under this Lease, including, without limitation, ownership of the Improvements, by foreclosure or other enforcement proceedings, or by obtaining an assignment of this Lease in lieu of foreclosure or through settlement of or arising out of any pending or threatened foreclosure proceeding, without the City's consent, subject always to the applicable terms and provisions of this Lease, including specifically the obligation to use the Leased Premises for the Primary Purpose and in accordance with Article IV of this Lease. A Leasehold Mortgagee (or its designee 47 MIA 180,105,011v1512-3-08 or nominee) shall not be required to maintain a designation as a 501(c)(3) corporation under the Internal Revenue Code (as amended), unless such Leasehold Mortgagee (or its designee or nominee) is a corporation with such a designation when it becomes the lessee under this Lease. However, a Leasehold Mortgagee (or its designee or nominee) shall not allow uses to be made of, or activities to be conducted within, the Leased Premises which would cause a not -for -profit entity to lose its designation as a 501(c)(3) corporation under the Internal Revenue Code (as amended) if such designation were applicable. (e) The City agrees that in the event of teiniination of this Lease for any reason (other than a default by the Museum beyond the applicable cure period, for which Leasehold Mortgagee was provided notice and an opportunity to cure in accordance with this Article and failed to cure such default), that the City will enter into a new lease of the Leased Premises with Leasehold Mortgagee or its designee for the remainder of the Term, effective as of the date of such termination, at the rent and upon the terms, provisions, covenants and agreements as herein contained, provided: (i) Leasehold Mortgagee, or its designee, shall make written request upon the City for such new lease within thirty (30) days after the City has given Leasehold Mortgagee notice of such termination. (ii) Said written request shall be accompanied by payment of all past due rents and other charges owing to the City hereunder of which Leasehold Mortgagee shall have been given notice, and, thereafter such monetary obligations shall be maintained current through the time of the execution and delivery of said new lease. (iii) The lessee under such new lease shall automatically have the same right, title and interest in and to the Leased Premises, and the same obligations, as the Museum had under the terminated Lease, excluding, however, provisions of the Lease which require the lessee to maintain a designation as a 501(c)(3) corporation under the Internal Revenue Code, as amended, subject to the terms of Section 17.3(d) above. (f) The City agrees, subject to approval of the City Commission (if required pursuant to Applicable Law), to execute, acknowledge and deliver any agreements modifying this Lease, the Development Agreement and the Management Agreement reasonably requested by any Leasehold Mortgagee, provided that such modifications do not change the Primary Purpose and Permitted Uses, decrease the Museum's obligations, or increase the Museum's rights, or decrease the City's rights. (g) The provisions of this Article XVII in favor of the Leasehold Mortgagee shall inure to the benefit of the Leasehold Mortgagee and its successors, assigns and designees, and also any other purchaser or transferee of this Lease pursuant to any foreclosure or bankruptcy proceedings, or assignment in lieu thereof. (h) Notwithstanding any contrary provision of this Lease, the Leasehold Mortgagee shall not be liable or responsible in any respect for any of the Museum's obligations under this Lease unless and until the Leasehold Mortgagee becomes the owner and holder of this Lease through foreclosure or bankruptcy MIA 180,105,011v15 12-3-08 48 proceedings, or assignment in lieu thereof, though performance by the Leasehold Mortgagee may be a condition of forbearance as set forth in Section 17.3(c)(iii) of this Lease. Section 17.4 Notices to/from Leasehold Mortgagees. Any notice or other communication which the City shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served personally or by overnight courier service (such as Federal Express or UPS) addressed to such Leasehold Mortgagee at its address as set forth in the notice to the City, or at such other address as shall be designated from time to time by such holder by notice in writing given to the City. Any notice or other communication which any Leasehold Mortgagee shall desire or is required to give to or serve upon the City shall be deemed to have been given or served if sent as set forth in the provisions of this Lease providing for notices to the City. Section 17.5 Lease Modifications. The City will not modify, amend or accept a surrender of this Lease without the prior written consent of the Leasehold Mortgagee. Any such modification, amendment or surrender without the written consent of the Leasehold Mortgagee who has notified the City of its Leasehold Mortgage shall be void and of no force or effect. Notwithstanding any provision of this Lease to the contrary, the City's right to terminate this Lease shall be limited by the provisions of Section 17.3. ARTICLE XVIII OWNERSHIP OF IMPROVEMENTS The City and Museum acknowledge and agree that, during the Term (including any stated or subsequently negotiated renewals thereof), title (for all purposes) to the Improvements, any Alterations and any other improvements to the MAM Site, shall be held and owned by the Museum, and the ownership of the Leasehold Estate and all such improvements shall be non - separable. At the expiration of the Term (by its own terms or any earlier termination), title (for all purposes) to the Improvements, any Alterations and any other improvements on the MAM Site shall automatically vest in the City without payment or consideration of any kind. Although this provision is intended to be self-executing, the Museum hereby agrees, upon expiration of the Term (and any renewals thereof), to execute any further quitclaim or special warranty deed or document requested by the City to confirm the City's sole ownership of and fee simple title to all improvements on the MAM Site. Any furniture, furnishings, equipment or other articles of movable Personal Property owned by the Museum (or any Transferee) and located in the Leased Premises, all interior and exterior exhibits installed by the Museum within the MAM Site, and all workshops, computer, energy generating and office equipment, and other items which are not a part of the major building systems or structures or necessary for the continued operation of the building, shall be and shall remain the property of the Museum (or such Transferee) and may be removed by it at any time during the Term of this Lease. However, if any of the Personal Property is removed during or at the end of the Term, and such removal causes damage to the Leased Premises, the Museum shall repair such damage at its sole cost and expense. Any property belonging to the Museum and not removed by the Museum within fifteen (15) days following the expiration or earlier termination of the Lease, shall at the election of the City, be deemed to be abandoned by 49 MIA 180,105,011v1512-3-08 the Museum, and the City may keep or dispose of such property as it sees fit. At the expiration of the term of this Lease, the Museum shall deliver to the City the keys and combination to all safes, cabinets, vaults, doors and other locks left by the Museum on the Leased Premises. ARTICLE XIX MUSEUM PARK SIGNAGE Section 19.1 Building Signage. The Museum, at its sole cost and expense, may install identification signage on the Improvements in accordance with the plans submitted with the Development Approvals, provided that the Museum complies with all Applicable Laws and legal requirements, including the requirements set forth in the City's Code of Ordinances and Zoning Ordinance (as amended). The Museum agrees to comply with any future signage criteria adopted for the Museum Park Project pursuant to the Management Agreement with respect to any new signage installed by the Museum after the date of the adoption of such signage criteria. The Project shall be known as, and named, the "Miami Art Museum", as such name may be amended from time to time during the Term, which name shall be prominently displayed on the Improvements. If the County is recognized on any museum signage for its contribution to the Project, then the City shall also be recognized on the same museum signage and the lettering used to identify the City and the County shall be the same size font. Upon the expiration or earlier termination of this Lease, for any reason, the Museum shall, at its sole cost and expense, remove and dispose of all signs located on the Improvements or the Leased Premises, and shall repair any damage caused by such removal. The Museum's intention with respect to signage for the Improvements shall be addressed in the scope of work for the Project under the Development Agreement and/or the final plans and specifications for the Project approved thereunder. All signage on the exterior of the Improvements shall be subject to the approval of the City Section 19.2 Museum Park Signage System. The Museum understands that the City may elect to provide a neat and consistent look to all directional signs placed on the rights -of - way adjacent to and within the Museum Park Project through a park -wide signage system. In the event the City makes such election, the City will, at the City's expense, develop a pathfinder/directional-type signage system, directing visitors to the various sites within the Museum Park Project, by a graphic design firm selected by the City. Any such signage system shall be subject to the approval of the Museum. Except as otherwise provided in the Management Agreement, the cost of fabrication and installation of the City's signage system for the Museum Park Project shall be paid for exclusively by the City. Section 19.3 Expense Pass-Throughs. The City agrees that the Museum shall not be double - charged for any expenses passed through to the Museum under this Lease. Accordingly, the Museum shall pay for each such expense in accordance with the terms hereof one time only, notwithstanding that one or more sections of this Lease may address the same item of expense. MIA 180,105,011 v15 12-3-08 50 ARTICLE XX DEFAULT PROVISIONS Section 20.1 Events of Default - Museum. (a) Events of Museum's Default. Each of following events is defined as an "Event of Museum's Default": (i) The failure of the Museum to pay any installment of Rent when due and the continuance of the failure for a period of thirty (30) days after notice in writing from the City to the Museum; (ii) The failure of the Museum to perform any of the other covenants, conditions and agreements of this Lease on the part of the Museum to be performed, or failure of the Museum (but not a Leasehold Mortgagee or its designee or nominee as provided in Article XVII) to maintain tax-exempt status under Section 501 (c)(3) of the Internal Revenue Code, as amended; and the continuance of the failure for a period of thirty (30) days after notice in writing (which notice shall specify the respects in which the City contends that the Museum has failed to perform any of the covenants, conditions and agreements) from the City to the Museum, unless with respect to any default which cannot be cured within thirty (30) days, the Museum, or any person holding by, through or under the Museum, in good faith, promptly after receipt of written notice, shall have commenced and continued diligently to reasonably prosecute all action necessary to cure the default; (iii) The filing of an application by the Museum: (1) for a consent to the appointment of a receiver, trustee or liquidator of itself or all its assets; (2) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (3) of a general assignment for the benefit of creditors; or (4) of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (iv) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Museum as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing unstayed and in effect for any period of one hundred eighty (180) consecutive days, or if this Lease is taken under a writ of execution. (b) Remedies in Event of Museum's Default. The City may treat any one or more of the Event(s) of Museum's Default as a breach of this Lease, and thereupon at its option, without further notice or demand of any kind to the Museum or any other person, the City shall have, in addition to every other right or remedy existing at law or equity, the right to immediately terminate the Museum's right of possession under this Lease and to collect any other sum of money and damages due under the teinis of this Lease through the date of such termination. 51 MIA 180,105, 011 v15 12-3-08 (c) Waivers and Surrenders to be in Writing. The receipt of Rent by the City, with knowledge of any breach of this Lease by the Museum or of any default on the part of the Museum in the observance or performance of any of the conditions, agreements or covenants of this Lease, shall not be deemed to be a waiver of any provision of this Lease. Notwithstanding the foregoing, the City must advise the Museum forthwith in writing of any breach of this Lease which the City has knowledge of. No failure on the part of the City to enforce any covenant or provision contained in this Lease, or any waiver of any right under it by the City, unless in writing, shall discharge or invalidate such covenant or provision or affect the right of the City to enforce it in the event of any subsequent breach or default. No covenant or condition of this Lease shall be deemed to have been waived by the City unless the waiver be in writing. The consent of the City to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the Museum from the obligation, wherever required under this Lease, to obtain the consent of the City to any other act or matter. The receipt by the City of any Rent or any other sum of money or any other consideration paid by the Museum after the entry of a judgment granting possession of the Leased Premises to the City, shall not reinstate or continue the Term demised unless so agreed to in writing. Section 20.2 Events of Default —City. (a) Events of City's Default. The failure of the City to perform any of the covenants, conditions and agreements of this Lease which are to be performed by the City and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from the Museum to the City (which notice shall specify the respects in which the Museum contends that the City has failed to perform any of such covenants, conditions and agreements), and unless such default be one which cannot be cured within thirty (30) days and the City within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults, such failure shall constitute an "Event of City's Default". (b) Remedies in Event of City's Default. If an Event of City's Default shall occur, the Museum may treat any one or more of the Event(s) of City's Default as a breach of this Lease, and thereupon at its option, by serving written notice on the City, the Museum shall have, in addition to every other right or remedy existing in equity, the right to a writ of mandamus, specific performance, injunction or other similar relief, available to it under applicable law against the City; provided, however, that in no event shall any member of such governing body or any of its officers, agents or representative be personally liable for any of the City's obligations to the Museum hereunder. It is understood and agreed that in no event shall the City be liable for monetary damages. Section 20.3 Mitigation. The City and the Museum hereby expressly acknowledge and agree that each shall have an affirmative obligation to mitigate their respective damages (i) as a consequence of a default by the other, and (ii) with regard to any matter for which one party intends to seek indemnification from the other. 52 MIA 180,105,011v15 12-3-08 Section 20.4 Unavoidable Delay. For the purpose of any of the provisions of this Lease, neither the City nor the Museum, as the case may be, shall be considered in breach of or in default in any of its obligations under this Lease in the event of "Unavoidable Delays" (defined below). As used herein, the term "Unavoidable Delays" shall mean delays due to strikes, slowdowns, lockouts, acts of God, inability to perform due to court order, inability to obtain labor or materials, or to settle insurance claims due to governmental restrictions, delays relating to Applicable Laws, war, enemy action, acts of terrorism, civil commotion, fire, casualty, flood, unusually severe weather conditions (such as tropical stoitus or hurricanes), delays by the City in the review, approval or inspection required herein or in the Development Agreement (which impact the Museum's obligations hereunder), the application of any Applicable Law, or any other cause beyond such party's reasonable control, but not including such party's financial condition or inability to obtain funding or financing (unless such condition arises from an Unavoidable Delay). All Unavoidable Delays must be beyond the reasonable control of the party asserting the delay. In the event of the occurrence of any such Unavoidable Delay, the time or times for the performance of the covenants and provisions of this Lease shall be extended for the period of Unavoidable Delay; provided, however, that (a) the party seeking the benefit of the provisions of this Section shall, within thirty (30) days after such party shall have become aware of such Unavoidable Delay, give written notice to the other party thereof of the cause or causes thereof and the time anticipated to be delayed; and (b) no Unavoidable Delay shall serve to extend the time for performance of the covenants or provisions of this Lease by more than three (3) years (unless extended by the Parties in writing). Section 20.5 Termination. In the event that this Lease is terminated by the City for any reason expressly permitted hereunder, it is understood and agreed that the City shall have no liability whatsoever, financial or otherwise, to the Museum for any matter whatsoever relating to the termination of the use of the MAM Site, including specifically, without limiting the generality of the foregoing, liability for any expenses incurred by the Museum in connection with the construction or operation of the Project. Section 20.6 Remedies Cumulative. No remedy conferred upon or reserved to the City or the Museum shall be considered exclusive of any other remedy, but shall be cumulative and shall be in addition to every other remedy given under this Lease or existing at law or in equity or by statute; and every power and remedy given by this Lease to the City or the Museum may be exercised from time to time and as often as occasion may arise, or as may be deemed expedient by the City or the Museum. No delay or omission of the City or the Museum to exercise any right or power arising from any default shall impair any right or power, nor shall it be construed to be a waiver of any default or any acquiescence in it. The rights of the City and the Museum under this Lease shall be cumulative and the failure on the part of either party to exercise properly any rights given hereunder shall not operate to forfeit any of such rights. Section 20.7 Waiver of Remedies Not To Be Inferred. No waiver of any breach of any of the covenants or conditions of this Lease shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. 53 MIA 180,105,011v15 12-3-08 Section 20.8 Effect of Termination. Termination of this Lease in accordance with its terms shall not alter the obligations of the Parties under this Lease which expressly survive such termination. ARTICLE XXI NOTICES All notices or other communications which shall or may be given pursuant to this Lease shall be in writing and shall be delivered by personal service or by certified mail addressed to the parties and their respective counsel and representatives at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth (5`h) day after being posted or the date of actual receipt, whichever is earlier. NOTICE TO THE CITY: City of Miami 3500 Pan American Drive Miami, Florida 33133-5595 Attn: City Manager WITH COPY TO: City of Miami 444 S.W. 2nd Avenue, 96' Floor Miami, Florida 33130 Attn: City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 325 Miami, Florida 33130 Attn: Director, Department of Public Facilities NOTICE TO THE MUSEUM: Miami Art Museum of Dade County Association, Inc. 101 Flagler Street Miami, Florida 33130 Attn: Director WITH COPY TO: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Attn: Matthew B. Gorson, Esq. Nancy B. Lash, Esq. ARTICLE XXII QUIET ENJOYMENT The City represents, warrants and covenants that the Museum, upon paying the Rent and all other charges, and performing all the covenants and conditions of this Lease, shall lawfully and quietly hold, occupy and enjoy the Leased Premises during the Term without hindrance or molestation by the City or any persons claiming under the City. 54 MIA 180,105,011v15 12-3-08 ARTICLE XXIII ESTOPPEL CERTIFICATES The Museum and the City shall, at any time and from time to time, within thirty (30) days after written request by the other, execute, acknowledge and deliver to the party which has requested the same, a certificate stating that: (i) this Lease is in full force and effect and has not been modified, supplemented or amended in any way, or, if there have been modifications, this Lease is in full force and effect as modified, identifying such modification agreement, and if this Lease is not in full force and effect the certificate shall so state the reasons why; (ii) this Lease as modified represents the entire agreement between the parties as to this leasing or, if it does not, the certificate shall so state why; (iii) the dates on which the term of this Lease commenced and is scheduled to terminate; (iv) all conditions under this Lease to be performed by the Museum or the City, as the case may be, have been satisfied and, as of the date of such certificate, there are no existing defenses or offsets which the Museum or the City, as the case may be, has against the enforcement of this 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. If so requested, the parties will also execute, acknowledge and deliver a similar estoppel certificate with regard to the Development Agreement and the Management Agreement. 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. ARTICLE XXIV SURRENDER AND HOLDING OVER Section 24.1 Surrender at End of Term. At the end of the Term, the Museum shall, in accordance with Section 24.2, peaceably and quietly leave, surrender and deliver the entire Leased Premises to the City, together with any and all changes, additions and other improvements made upon the Leased Premises, and together with any and all improvements, trade fixtures, machinery, equipment or other personal property of any kind or nature which the Museum may have affixed to the Leased Premises for use in connection with the operation and maintenance of the Leased Premises (whether or not the property is deemed to be fixtures), other than the Museum's exhibits which may be wholly or partly affixed to the interior or exterior walls of the Improvements or affixed on the grounds of the Project, movable Personal Property, workshops, computer, energy generating and office equipment, and other items which are not a part of the major building systems or structures or necessary for the continued operation of the building (all of which the Museum or its Transferees is entitled to freely remove pursuant to and subject to the terms of Article XVIII, in which case the Museum shall repair any damage caused by such removal), in their "as is" condition, free and clear of any and all leasehold mortgages, liens, encumbrances and claims. If the Leased Premises are not so surrendered, the Museum shall repay the City for all expenses which the City shall incur by reason of it, and in addition the Museum shall indemnify, defend and hold harmless the City from and against all claims against the City, founded upon the failure of the Museum to surrender the Leased Premises. 55 MIA 180,105,011v15 12-3-08 Section 24.2 Rights Upon Holding Over. At the termination of this Lease by lapse of time or otherwise, the Museum shall have a period of ninety (90) days to vacate and yield up possession of the Leased Premises to the City and, failing so to do, agrees, at the option of the City, to pay to the City for the whole time such possession is withheld beyond said 90-day period, a sum per day equal to $1,000. The provisions of this Article XXIV shall not be held to be a waiver by the City of any right of entry or reentry as set forth in this Lease, nor shall the receipt of a sum, or any other act in apparent confirmation of the tenancy, reinstate, continue or extend the Term or otherwise limited or affect any other remedies available to the City hereunder. ARTICLE XXV TRANSFERS BY CITY The Parties acknowledge that the Museum selected the MAM Site for the Project, in part, based on the unique, integrated and independent components of the Museum Park Project, which include the Improvements, the MSM Museum and the Park Component, and that the Museum Park Master Plan was a material inducement in such selection. Accordingly, in the event MSM ceases to operate the MSM Museum (or the improvements comprising same), the City shall not sell, lease, convey or otherwise transfer the MSM Museum (or such improvements), or allow same to be operated, except in accordance with the following conditions: (i) the improvements on the MSM Site shall not be operated as an art museum, (ii) if the MSM Site will continue to be operated as a museum, the improvements on the MSM Site shall be maintained and operated as a first class museum accredited by the American Association of Museums Accreditation Program (or its successor), and (iii) the replacement use and operation of the MSM Site shall be compatible with and complementary to the Museum and the Park Component, and shall be family -friendly. ARTICLE XXVI MISCELLANEOUS PROVISIONS Section 26.1 Ingress and Egress. Subject to rules and regulations, statements and ordinances, and terms of this Lease governing the use of the Leased Premises, the Museum, its patrons, employees, licensees, visitors and all other invitees shall have ingress and egress to and from the Leased Premises. Section 26.2 Assignability and Binding Effect. Subject to all provisions respecting the rights of assignment or subleasing, this Lease shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties hereto. Section 26.3 Amendments. The City and the Museum by mutual agreement shall have the right but not the obligation to amend this Lease. Such amendments shall be effective only when signed by the City and the Museum, and approved by the City Commission (if required under Applicable Law), and shall be incorporated as a part of this Lease. Amendments extending the time for performance of any obligation of the Museum by no more than ninety (90) days may be executed by the City Manager without City Commission approval. 56 MIA 180,105,011v15 12-3-08 Section 26.4 Award of Agreement. The Museum warrants that it has not employed or retained any person employed by the City to solicit or secure this Lease and that it has not offered to pay, paid, or agreed to pay any person employed by the City any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Lease. Section 26.5 Construction of Agreement. This Lease shall be construed and enforced according to the laws of the State of Florida. Section 26.6 Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Lease, or arising out of, under or in connection with this Lease or any amendment or modification of this Lease, or any other agreement executed by and between the parties in connection with this Lease, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any Party hereto. This waiver of jury trial provision is a material inducement for the City and the Museum entering into this Lease. Section 26.7 Severability. If any provision of this Lease, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, then, to the extent possible, and provided that none of the substantive rights, obligations or liabilities of any Party are altered, the remainder of this Lease shall be construed as if such invalid part were never included herein and this Lease shall be and remain valid and enforceable to the fullest extent permitted by law. Section 26.8 Time of Essence as to Covenants of Lease. Subject to any extensions expressly provided with respect thereto and Unavoidable Delay, time is of the essence as to the performance of the provisions of this Lease by the Museum and the City. Section 26.9 Captions. The captions contained in this Lease are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Lease or the intent of any provisions thereof. Section 26.10 Conditions and Covenants. All the provisions of this Lease shall be deemed and construed to be conditions as well as covenants, as though the words specifically expressing or importing covenants and conditions were used in each separate provision. Section 26.11 Museum's Obligations Survive Termination. All obligations of the Museum hereunder not fully perfoinied as of the expiration or earlier termination of the Term of this Lease shall survive the expiration or earlier termination of the Term hereof, including, without limitation, all payment obligations and all obligations concerning the condition of the Leased Premises. Section 26.12 Radon. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of Radon that exceed Federal and State guidelines have been found in buildings in Florida. Additional information regarding Radon and Radon testing may be obtained from the county health department. 57 MIA 180,105, 011 v15 12-3-08 Section 26.13 Recording; Documentary Stamps. The cost of recording the Memorandum of Lease attached hereto as Exhibit H, any State of Florida documentary stamps which legally must be attached to said Memorandum (if any), and the applicable Miami -Dade County and State transfer tax (if any), shall be paid in full by the Museum. Section 26.14 Counterparts. This Lease may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Section 26.15 Third Party Beneficiaries. There are no third party beneficiaries to this Lease. Section 26.16 Provisions not Merged with Deed. None of the provisions of this Lease, nor the separate estates of the Museum and the City, 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 the Museum's leasehold estate in the Leased Premises or its interest in the Project or any part thereof from the Museum to the City, or (ii) transferring title to the Leased Premises or any part thereof from the City to the Museum, 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 Project, including all Leasehold Mortgagees, shall join in the execution of a written instrument effecting such merger. Section 26.17 Waiver of Landlord's Lien. The City hereby waives any right to a statutory or contractual landlord's lien (but not any post -judgment judgment liens) against any items of Personal Property which are now located or may hereafter be delivered or installed in, on or about the Leased Premises. This waiver shall be self -operative without the execution of further instruments. However, if requested by any party extending credit to the Museum or its Transferees secured by any property on which the City would otherwise have a right to a landlord's lien but for the above waiver, the City shall confirm in writing to such party that the City waives and does not have rights to a lien against such property. Section 26.18 Approvals and Consents. Wherever in this Lease the approval or consent of any party (including the City Manager) is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld, conditioned or delayed. Wherever in this Lease the approval or consent of the City is required, except as otherwise specifically provided herein, or as may otherwise be required by Applicable Laws in the opinion of the City Attorney, the written approval or consent of the matter in question by the City Manager (or his/her designee) shall satisfy the requirement for approval or consent of the City for all purposes. The Museum acknowledges that when the City acts or exercises any rights or obligations under this Lease, including without limitation the specific approval and consent rights of the City set forth herein, it is doing so in its capacity as the fee owner of the MAM Site and not as a municipality, and that the role of the City as a municipality is separate and distinct from the role of the City as the fee owner of the MAM Site under this Lease. Wherever in this Lease the approval or consent of the Trust is required, the written approval or consent of the matter in question by the Director of the Trust (or his/her designee) shall satisfy the requirement for approval or consent of the Trust for all purposes. 58 MIA 180,105,011v15 12-3-08 Section 26.19 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 hereunder. In that regard, no officer, director, partner, trustee, representative, investor, official, representative, employee, agent, or attorney of any of the parties to this Lease 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 Lease, or any other matters contemplated herein, and any and all such personal liability, either at common law or in equity or by constitution or statute or other Applicable Law are expressly waived and released as a condition of, and as a consideration for, the execution of this Lease. Section 26.20 Entire Agreement. This Lease represents the total agreement between parties with respect to the matters stated herein and therein. All other prior agreements between the parties relating to the Museum's lease of the Leased Premises, either verbal or written, are superseded by this Lease and are therefore no longer valid. Section 26.21 Attorneys' Fees. In the event of any dispute or litigation between the parties arising under this Lease, each party shall be responsible for its own expenses, including attorneys' fees and court costs, at both trial and appellate levels. Section 26.22 Construction and Interpretation. The use of the term "including" in this Lease shall mean "including without limitation" in all instances. Each of the Parties hereto and their counsel have reviewed and revised, or requested revisions to, this Lease, and the usual rule of construction that any ambiguities are to be resolved against the drafting party shall be inapplicable in the construction and interpretation of this Lease and any amendments or exhibits to this Lease. ARTICLE XXVII NONDISCRIMINATION The Museum represents and warrants to the City that the Museum does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with the Museum's performance under this Lease or in the use of the Leased Premises and Improvements thereon, on account of race, color, sex, religion, age, handicap, marital status, national origin, ancestry, familial status or sexual orientation. The Museum further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status, national origin, ancestry, familial or sexual orientation, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Lease in the use of the Leased Premises and Improvements thereon. ARTICLE XXVIII ARBITRATION PROCESS Section 28.1 Arbitrator(s). Any dispute hereunder which is expressly stated to be resolved under this arbitration provision, shall be referred to and exclusively and finally settled by binding arbitration, conducted in accordance with the Commercial Arbitration Rules (or similar successor rules thereto). The place of arbitration shall be Miami, Florida. In the event that any Party calls for a determination in arbitration pursuant to the terms of this Lease, the 59 MIA 180,105,011v15 12-3-08 Parties shall have a period of ten (10) days from the date of such request to mutually agree on one arbitrator who, at a minimum, must be an attorney with at least fifteen (15) years experience practicing real estate law (with significant experience in long-term leases and development projects) in Miami -Dade County, Florida. If the Parties fail to agree, each Party shall have an additional ten (10) days to each select an individual meeting the same minimum qualifications set forth above, and the two arbitrators selected shall select an arbitrator to be the arbitrator for the dispute in question. If any Party fails to make its respective selection of an arbitrator within the additional 10-day period provided for above, then the remaining Parties' selection shall be the arbitrator. Section 28.2 Arbitration Process. The arbitrator shall decide the issues submitted to him/her in accordance with (i) the language, commercial purpose and restrictions contained in this Lease (including exhibits hereto, if any) and (ii) what is just and equitable under the circumstances, provided that all substantive issues shall be determined under the laws of the State of Florida. With respect to any arbitration proceeding hereunder, the following provisions shall apply: (a) The Parties shall cooperate with one another in the production and discovery of requested documents, and in the submission and presentation of arguments to the arbitrator at the earliest practicable date. (b) The arbitrator conducting any arbitration shall be bound by the provisions of this Lease and shall not have the power to add to, subtract from or otherwise modify such provisions. (c) The Parties renounce all recourse to litigation with respect to the matters in this Lease which direct the dispute in question to be resolved under this arbitration provision, and agree that, with respect to such matters only, the ruling and award (if any) of the arbitrator shall be conclusive, final and binding upon the Parties, and shall not be subject to judicial review. Judgment on the award of the arbitrator may be entered in any court having jurisdiction over the Party against which enforcement of the award is being sought, and any Party may institute judicial proceedings to compel arbitration in accordance with the provisions hereof. (d) Each Party shall be responsible for its own costs and expenses incurred in the arbitration, including attorneys' fees, but the costs of the presiding arbitrator and the arbitration itself shall be shared equally by the Parties. (e) Except to the extent this Lease expressly provides that certain matters are to be resolved by submission to the Museum Park Steering Group and/or by Arbitration, all disputes between the Parties shall be resolved by litigation. [remainder of this page intentionally left blank] 60 MIA 180,105, 011 v15 12-3-08 IN WITNESS WHEREOF, the officials, executed this Lease the day and ATTEST: parties hereto have individually, through their proper year first herein above written. THE CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru City Attorney WITNESSES: Print Name: Title: Print Name: Title: Pedro G. Hernandez City Manager APPROVED AS TO INSURANCE REQUIREMENTS By: LeeAnn Brehm, Risk Management Administrator MIAMI ART MUSEUM OF DADE COUNTY ASSOCIATION, INC. By: Print Name: Title: MIA 180,105,011v15 12-3-08