HomeMy WebLinkAboutLease Agreement 212/3/2008 5.44 PM (2K)
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LEASE AGREEMENT
(MIAMI SCIENCE MUSEUM PROJECT)
BETWEEN
THE CITY OF MIAMI
AND
MUSEUM OF SCIENCE, INC.
DATED , 2008
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 12
Section 2.1 Description of Leased Premises; Title 12
Section 2.2 Term of Lease. 13
Section 2.3 Conditions; Right to Terminate 14
Section 2.4 Signage During Construction 15
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 21
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 24
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 25
Section 5.5 Preventative Maintenance and Services 26
Section 5.6 Landscaping 27
Section 5.7 Green Initiatives 27
Section 5.8 Management Agreement Terms 27
Article VI CONSIDERATION 27
Section 6.1 Base Rent 27
Section 6.2 Additional Rent 28
Section 6.3 Interest on Late Payments 28
Section 6.4 Place of Payment 28
Article VII IMPOSITIONS 28
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Article VIII HAZARDOUS MATERIALS 28
Section 8.1 Handling of Hazardous Materials 28
Section 8.2 Indemnification 29
Section 8.3 Notice Obligations 30
Section 8.4 Environmental Tests and Audits 30
Section 8.5 Excluded Environmental Conditions 30
Section 8.6 Pre -Existing Conditions 31
Section 8.7 Survival of Museum's Obligations 31
Article IX RECORDS AND AUDITING 31
Section 9.1 Records Of Sales 31
Section 9.2 Audit 32
Section 9.3 Reports 32
Article X LICENSES; COMPLIANCE WITH LAWS 33
Section 10.1 Licenses and Permits 33
Section 10.2 Compliance with Laws 33
Article XI ALTERATIONS AND MAJOR REPAIRS 33
Section 11.1 Alterations 33
Section 11.2 Major Repairs 34
Section 11.3 Conditions to Major Alterations and Major Repairs 34
Section 11.4 General Requirements 35
Section 11.5 Expansion of Improvements 35
Section 11.6 Mechanics' Liens 35
Section 11.7 Reserve Fund 36
Article XII INSPECTION AND RIGHT OF ENTRY 36
Section 12.1 Inspection by City 36
Section 12.2 City's Right of Entry 36
Article XIII INDEMNIFICATION AND INSURANCE 37
Section 13.1 Indemnification by Museum 37
Section 13.2 Insurance 37
Section 13.3 Waiver of Subrogation 39
Section 13.4 No Liability of City 39
Article XIV DAMAGE AND DESTRUCTION 39
Section 14.1 Destruction of Leased Premises 39
Section 14.2 Museum's Option to Terminate Lease 40
Section 14.3 City's Option to Terminate Lease 40
Section 14.4 Demolition and Reconstruction 40
Section 14.5 Insurance Proceeds 41
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Article XV EMINENT DOMAIN 41
Section 15.1 Complete Permanent Taking 41
Section 15.2 Partial Permanent Taking 42
Section 15.3 Temporary Taking 42
Article XVI ASSIGNMENTS AND SUBLETTING 42
Section 16.1 Assignment and Subletting of Leased Premises 42
Section 16.2 Permitted Transfers 43
Section 16.3 No Release of Museum 44
Section 16.4 Event of Bankruptcy. 44
Article XVII MORTGAGE FINANCING; RIGHTS OF MORTGAGEE 45
Section 17.1 Leasehold Mortgages 45
Section 17.2 Leasehold Mortgage Conditions 46
Section 17.3 Rights of Leasehold Mortgagees 47
Section 17.4 Notices to/from Leasehold Mortgagees 50
Section 17.5 Lease Modifications 50
Article XVIII OWNERSHIP OF IMPROVEMENTS 51
Article XIX MUSEUM PARK SIGNAGE 51
Section 19.1 Building Signage 51
Section 19.2 Museum Park Signage System 52
Section 19.3 Expense Pass-Throughs 52
Article XX DEFAULT PROVISIONS 52
Section 20,1 Events of Default - Museum. 52
Section 20.2 Events of Default —City. 53
Section 20.3 Mitigation 54
Section 20.4 Unavoidable Delay 54
Section 20.5 Termination 54
Section 20.6 Remedies Cumulative 55
Section 20.7 Waiver of Remedies Not To Be Inferred 55
Section 20.8 Effect of Termination 55
Article XXI NOTICES 55
Article XXII QUIET ENJOYMENT 56
Article XXIII ESTOPPEL CERTIFICATES 56
Article XXIV SURRENDER AND HOLDING OVER 57
Section 24.1 Surrender at End of Term 57
Section 24,2 Rights Upon Holding Over 57
Article XXV TRANSFERS BY CITY 57
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Article XXVI MISCELLANEOUS PROVISIONS
Section 26.1 Ingress and Egress
Section 26.2 Assignability and Binding Effect
Section 26.3 Amendments
Section 26.4 Award of Agreement
Section 26.5 Construction of Agreement
Section 26.6 Waiver of Jury Trial
Section 26.7 Severability
Section 26.8 Time of Essence as to Covenants of Lease
Section 26.9 Captions
Section 26.10 Conditions and Covenants
Section 26.11 Museum's Obligations Survive Termination
Section 26.12 Radon
Section 26.13 Recording; Documentary Stamps
Section 26.14 Counterparts
Section 26.15 Third Party Beneficiaries
Section 26.16 Provisions not Merged with Deed
Section 26.17 Waiver of Landlord's Lien
Section 26.18 Approvals and Consents
Section 26.19 Exculpation
Section 26.20 Entire Agreement
Section 26.21 Attorneys' Fees
Section 26.22 Construction and Interpretation
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61
61
Article XXVII Nondiscrimination 61
Article XXVIII ARBITRATION PROCESS 61
Section 28.1 Arbitrator(s) 61
Section 28.2 Arbitration Process 61
LIST OF EXHIBITS:
Exhibit A
Exhibit B
Exhibit C
Exhibit D-1
Exhibit D-2
Exhibit D-3
Exhibit D-4
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
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Legal Description of Museum Park
Legal Description/Depiction of Property
Legal Description/Depiction of MSM Site
Location of Access and Turnaround Easement
Location of Construction Staging and Parking Easement
Location of 1 1th Street Entry
Location of South Road Access (in lieu of FDOT Turnaround)
Legal Description/Depiction of FDOT Area
List of Insurance Requirements (Exhibits F-1 through F-3)
List of Permitted Exceptions
Memorandum of Lease Agreement (Miami Science Museum Project)
Community Benefits — MSM
Possession Date Certificate
iv
LEASE AGREEMENT
(MIAMI SCIENCE MUSEUM PROJECT)
THIS LEASE AGREEMENT (MIAMI SCIENCE 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
MUSEUM OF SCIENCE, 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 Miami Art Museum
of Dade County Association, Inc., a Florida not -for -profit corporation ("MAM"), for the
development of new museum facilities within Museum Park, including without limitation the
terms 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) MAM, and (vi) the Historical Association of Southern
Florida, Inc., a Florida not -for -profit corporation ("HASF"), 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
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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
MAM, 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 science museum on the portion of the Property more particularly described or
depicted on Exhibit C attached hereto and incorporated herein (the "MSM Site"); and
WHEREAS, the City desires to lease to the Museum the MSM Site for the purpose of
developing, constructing, managing and operating a first class accredited science 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 science 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 MAM,
subject to the provisions of Section 3.6, pursuant to which, inter cilia, (i) the City will
grant to the Museum and MAM access to the Property via the 1 lth Street Entry, (ii) MAM
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 MAM 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.
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(b) "Accredited Museum" shall mean a science 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 Museum of Science & Planetarium Facility/Historical Museum
of South Florida / GOB Project Number 297-70430" 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.
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(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) "City" means the City of Miami, a municipal corporation of the
State of Florida.
(o) "City Commission" means the City Commission of the City of
Miami.
(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 MAM, as
grantees/beneficiaries, for construction staging, parking and access during construction of
the Improvements and the MAM 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 MAM, and the balance of the Construction Staging and
Parking Easement shall be exclusive to the Museum and MAM.
(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 MAM, 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 MAM 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.
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(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 MSM 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 11th
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) pelinit, 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.
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(z) "Environmental Remediation Agreement" shall mean the
agreement to be negotiated, approved, executed and delivered by the City, the Museum
and MAM 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 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 MAM, as provided in Section 3.6.
(hh) "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.
(ii) "HASF" has the meaning ascribed to it in the Recitals.
(jj) "HASF Space" shall mean approximately 25,000 gross square feet
(subject to adjustment as provided in the Development Agreement) of segregated interior
space, which will be constructed by the Museum as part of the Museum's base building,
but subsequently improved with interior improvements to be designed, developed,
constructed, provided and installed by HASF, and operated by HASF, pursuant to the
sublease to be executed between the Museum and HASF.
(kk) "Hazardous Materials" means any fuel, petroleum hydrocarbons,
flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste,
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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.
(11) "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 Term 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.
(mm) "Improvements" shall mean the proposed science museum to be
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 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.
(nn) "Insurance Requirements" shall mean the insurance requirements
for the Project imposed by the City's Risk Management Department set forth on
composite Exhibit F.
(oo) "Lease Year" shall mean any period of time consisting of twelve
(12) consecutive calendar months commencing on the Possession Date.
(PP)
Improvements.
"Leased Premises" shall mean the MSM Site, together with the
(qq) "Leasehold Estate" means all of the estate, rights and interest of the
Museum in and to the Leased Premises under this Lease.
(rr) "Leasehold Mortgage" has the meaning ascribed to it in Section
17.1.
(ss) "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
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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
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.
(tt) "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.
(uu) "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 S 1,000,000.
(vv) "MAM" means the Miami Art Museum of Dade County
Association, Inc., a Florida not -for -profit corporation, together with its successors and/or
peirnitted assigns.
(ww) "MAM Lease" shall mean the Lease Agreement by the City of the
MAM Site to MAM dated , 2008, together with any amendments,
modifications, restatements and supplements thereto as may be approved in writing by
the parties thereto.
(xx) "MAM Museum" shall mean the regional art museum now or
hereafter 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 MAM as part of the Museum Park Project pursuant to the terms of the
Development Agreement and the MAM Lease.
(yy) "MAM Site" shall have the meaning ascribed to it in the MAM
Lease.
(zz) "Management Agreement" means the Management and Operation
Agreement to be negotiated, approved, executed and delivered by the City, the Museum
and MAM with respect to the operation, maintenance, repair and replacement of each
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component of the Museum Park Project, including the Improvements, the MAM
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.
(aaa) "MOU" has the meaning ascribed to it in the Recitals to this Lease.
(bbb) "MSM 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 MSM
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 MSM Commencement Date be earlier than the Possession Date or later
than thirty-six (36) months after the Effective Date, subject to Unavoidable Delay.
(ccc) "MSM 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.
(ddd) "Museum" has the meaning ascribed to it in the opening paragraph
of this Lease, together with its successors and/or permitted assigns.
(eee) "Museum Drive" shall mean the area labeled "Museum Park Road"
on Exhibit B, which is located entirely within the Property.
(fff) "Museum Hours" shall mean customary hours of operation
consistent with Comparable Museums, which shall include evening (and at times,
overnight) 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.
(ggg) "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.
(hhh) "Museum Park Events" has the meaning ascribed to it in Section
2.5.
(iii) "Museum Park Events Deadline" shall mean June 30, 2009, as
same may be extended pursuant to Section 2.5.
(jjj) "Museum Park Master Plan" shall mean the master plan for the
Museum Park Project developed by Cooper Robertson & Partners, an architecture and
urban design firm, dated , 2008 and approved by the City, the Museum and
MAM, as amended and approved by the City, the Museum and MAM, from time to time.
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(kkk) "Museum Park Project" shall mean the development, construction,
management and operation of the Improvements, the MAM 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, MAM Museum and the
Park Component, to be designed and developed in accordance with the Museum Park
Master Plan and the Development Agreement.
(111) "Museum Park Steering Group" shall mean the governing body for
Museum Park under the Management Agreement, which shall be comprised of the
President of the Museum, Executive Director of MAM, 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 MAM pursuant to rules to be
adopted for same by the Museum Park Steering Group.
(mmm)"Museum Signs" shall have the meaning ascribed to it in Section
2.4.
(nnn) "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.
(000) "Parking Facility" shall have the meaning ascribed to it in Section
3.5.
(ppp) "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.
(qqq) "Permitted Alterations" has the meaning ascribed to it in Section
(rrr) "Permitted Exceptions" shall mean (i) the title matters set forth in
Exhibit G, and (ii) any easements, restrictions or covenants recorded against the MSM
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.
(sss) "Permitted Uses" has the meaning ascribed to it in Section 4.1.
(ttt) "Person" means any natural person, trust, firm, partnership,
corporation, joint venture, association, or any other legal or business entity or investment
enterprise.
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(uuu) "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.
(vvv) "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
City and the Museum shall promptly execute a completed certificate confirming the
actual Possession Date in the form attached hereto as Exhibit J.
(www) "Primary Purpose" has the meaning ascribed to it in Section 4.1.
(xxx) "Project" shall mean the development, construction, management
and operation of the science museum to be known as the "Miami Science Museum", and
any other related facilities and improvements at the MSM Site, which are incidental and
ancillary to the operation of a regional science museum.
(yyy) "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.
(zzz) "Reconstruction Work" shall have the meaning ascribed to it in
(aaaa) "Renewal Teim" shall have the meaning ascribed to it in Section
(bbbb) "Rent" shall mean the Base Rent, Additional Rent and any other
amounts the Museum is required to pay under this Lease.
Section 14.1.
2.2(b) below.
(cccc) "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.
(dddd) "Skipped GOB Revolver" has the meaning ascribed to it in Section
17.2.
(eeee) "Term" has the meaning ascribed to it in Section 2.2(a).
(ffff) "Transfer" has the meaning ascribed to it in Section 16.1.
(gggg) "Transferee" has the meaning ascribed to it in Section 16.1.
(hhhh) "Trust" shall mean The Bayfront Park Management Trust of the
City of Miami (or its successor, if any).
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(iiii) "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.
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 "Teuii". 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 Teiiiis. 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 Terms, shall not exceed a period
of ninety-nine (99) years, unless further extended by mutual agreement of the Parties,
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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 Term (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
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 terms 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 MAM shall have
executed and delivered the Development Agreement; and (ii) within one (1) year after the
Effective Date, the City, the Museum and MAM shall have executed and delivered the
Environmental Remediation Agreement. The City and the Museum (in conjunction with
MAM) 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
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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
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 MSM 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 MSM Site to minimize
injury to persons or raze the Improvements, fill the MSM 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
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Boulevard, the 395 Expressway and/or Biscayne Bay, which publicize the MSM Site as "The
Future Home of the Miami Science 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 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 MSM Site and in
other locations in Museum Park. The Museum Signs shall be subject to the approval of the City.
Section 2.5 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 MAM, 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 MSM
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 MSM
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 MSM Site and the FDOT Area may nevertheless be used for
any events actually booked as of the Possession Date through the Museum Park Events
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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, after the
Possession Date, to continue to book events in Museum Park (excluding, however, the
MSM 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 permanent 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 MSM 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 terms and conditions of the FDOT Area
Lease), and in any event shall include the 11>h Street Entry; and
(c) Construction Easements. Providing temporary construction
staging areas, parking areas and access to and from such areas to the MSM 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 MSM Commencement Date, and
shall terminate no later than the date of issuance of the certificate of occupancy for the
Improvements or the MAM Museum, whichever is later; and
(d) Drainage Easements. Installing, maintaining, repairing and
replacing drainage facilities for storm water and irrigation water; and
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(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
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) Aquarium -related Easements (exclusive). Installing, maintaining,
repairing and replacing aquarium -related facilities, equipment and lines, including
without limitation seawater intake and return and/or utility lines to Biscayne Bay. The
Museum agrees to attempt to locate a portion of any easement permitted hereunder on the
MAM site to the extent economically feasible, consistent with good architectural and
engineering practices, and acceptable to MAM.
(g) 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 MSM 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,
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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
(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 haijnless 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,
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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
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
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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 MAM 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
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 the MAM 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 MAM Museum). Accordingly, the portion of the Parking Facility under the
Improvements and on the MSM Site may be designed and constructed (and, if necessary,
operated) as an independent structure from the portion of the Parking Facility under the MAM
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 MSM Site as may be necessary to develop,
construct, operate, manage, maintain and repair the Project, irrespective of whether the MAM
Museum on the MAM 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 MAM 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
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"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 MAM, 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, MAM 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, however, that the reduced final number shall be no fewer than 400
parking spaces. In such event, the l 1 `h Street Entry and appropriate portions of Museum
Drive shall be used for access to the MSM Site, but not the FDOT Area.
(c) Relocation of Property. The City, the Museum and MAM 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 MAM 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 MAM 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.
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 Science 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
of the Project and the Improvements. The primary purpose of the Museum is to further the public
enjoyment and understanding of science and technology, through active participation and
engagement in inspiring educational experiences with living and non -living collections, exhibits,
programs and demonstrations, as such purpose may evolve over the Term of this Lease (the
"Primary Purpose"). The Improvements will include the HASF Space, the primary purpose of
which will be to showcase the history of South Florida and the Caribbean. The Museum
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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; educational programs for school groups and general visitors; professional
development for science educators; community outreach workforce training and internships;
workshops for families, parents, caregivers, and the community at large; exhibition design,
development, and construction, exhibit interpretation services, educational material design,
development and production, multimedia design, development and production, planetarium
shows and programs; aquarium visits and programs; technology demonstrations; live animal
exhibits; animal rehabilitation; care of collections; recycling activities, onsite generation of
power through sustainable means; web sites, research activities, lectures, symposia,
performances, science fairs, science -related camps, career and job fairs, radio, film and video
production broadcasts and screenings, health and sports science activities, as such programs and
uses may evolve over the Term of this Lease; and 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, books, science and technology gadget shops, birthday and other parties,
restaurant, cafe, food court, product launches, award ceremonies, training sessions, conferences,
health and wellness center (not a commercial membership gym facility), community employment
training and outreach services 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 MSM 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" 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 "Permitted Uses".
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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 Peiniitted 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
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 peiniitted 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.
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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.
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 noiicial 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) perfoini 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;
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(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;
(f) 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 MSM 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 County 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 perfoiiu 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
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to a particular party (including without limitation landscaping and green areas within the MSM
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
resource and energy efficiency, healthy indoor environments, and the use of renewable natural
resources. 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 terms 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.
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ARTICLE VII
IMPOSITIONS
The Museum shall pay and discharge, as they become due, any and all Impositions,
before any fine, penalty, interest or cost maybe 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
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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
MSM 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 MSM 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
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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 MSM 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 MSM 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 MSM 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
MSM 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 MSM 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
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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 31 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.
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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 infoiniation:
(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 (IRS) Form 990, 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.
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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 teinis 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 confirm 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 permitted 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.
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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 performed 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 MSM 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 perfoiuued 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 MSM Site with additional interior air-conditioned
space (whether originally contemplated as a future phase of the Project or subsequently
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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 the 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 MSM 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 MSM 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.
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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
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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 Term hereinafter
specifically provided: (i) from the Possession Date through the MSM Commencement Date, the
insurance coverage set forth in Exhibit F-1 of the Insurance Requirements; (ii) from the MSM
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, MSM 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
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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.
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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 Terminate 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 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 14.3 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
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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 deteituines 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 confoiuuity 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
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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 MSM Site to minimize injury to persons or raze the
Improvements, fill the MSM 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
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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 permit 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 science 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 terminated.
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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, museum gift shop,
aquarium, planetarium, and entertainment/conference/seminar suite. 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 31 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
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Transfers or modifications of this Lease by the Museum's Transferee, 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.
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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) Pei i lifted 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.
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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
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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.
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(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
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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 termination 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
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proceedings, or assignment in lieu thereof, though perfouiiance by the Leasehold
Mortgagee may be a condition to 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 MSM 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 MSM
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 MSM 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 MSM Site, and all workshops, computer,
energy generating and office equipment, playground 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
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deemed to be abandoned by 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 Science Museum", as such name may be
amended from time to time during the Te11n, 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.
ARTICLE XX
DEFAULT PROVISIONS
Section 20.1 Events of Default - Museum.
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(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 terms of this
Lease through the date of such termination.
(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
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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.
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
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relating to Applicable Laws, war, enemy action, acts of terrorism, civil commotion, fire,
casualty, flood, unusually severe weather conditions (such as tropical storms 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 MSM 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.
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.
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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 (5th) 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, 9th 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:
Museum of Science, Inc.
3280 South Miami Avenue
Miami, Florida 33129
Attn: President
WITH COPY TO:
White & Case LLP
200 South Biscayne Boulevard
Wachovia Financial Center, Suite 4900
Miami, Florida 33131
Attn: Victor M. Alvarez, Esq.
Peyton White Lumpkin, 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.
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
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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, playground 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.
Section 24.2 Rights Upon Holding Over. At the telnrination 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
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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 MSM Site for the Project, in part,
based on the unique, integrated and independent components of the Museum Park Project, which
include the Improvements, the MAM Museum and the Park Component, and that the Museum
Park Master Plan was a material inducement in such selection. Accordingly, in the event MAM
ceases to operate the MAM Museum (or the improvements comprising same), the City shall not
sell, lease, convey or otherwise transfer the MAM Museum (or such improvements), or allow
same to be operated, except in accordance with the following conditions: (i) the improvements
on the MAM Site shall not be operated as a science or technology museum, aquarium, or
planetarium; (ii) if the MAM Site will continue to be operated as a museum, the improvements
on the MAM 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 MAM 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 perfoiinance of any obligation of the Museum by no more than ninety (90)
days may be executed by the City Manager without City Commission approval.
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.
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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 peiniitted 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 performed 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.
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.
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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 MSM 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 MSM 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.
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
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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 status, 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 -Willis of this Lease, the
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-temi 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
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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.
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IN WITNESS WHEREOF, the parties hereto have individually, through their proper
officials, executed this Lease the day and year first herein above written.
ATTEST: THE CITY OF MIAMI, a municipal
corporation of the State of Florida
By: By:
Priscilla A. Thompson Pedro G. Hernandez
City Clerk City Manager
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENTS
By: By:
Julie O. Bru LeeAnn Brehm, Risk Management
City Attorney Administrator
WITNESSES: MUSEUM OF SCIENCE, INC.
By:
Print Name: Print Name:
Title: Title:
Print Name:
Title:
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