HomeMy Public PortalAbout140_023_lease 9-19-13 Draft 9-19-13
LEASE
THIS LEASE ("Lease") made and entered into as of , 2013 by and between
CITY OF TYBEE ISLAND, GEORGIA (hereinafter "City") and TYBEE ISLAND MARINE
SCIENCE FOUNDATION, INC., a Georgia Non-Profit Corporation, d/b/a Tybee Island Marine
Science Center(hereinafter"MSC"),upon the following terms and conditions:
RECITALS
WHEREAS, City and MSC desire that MSC lease certain property hereinafter described
and develop a marine science center ("the Center") for the purposes of providing cultural,
educational, museum and recreational programs and facilities related to beach and marine life, all as
hereinafter provided;
WHEREAS, City is a municipal corporation under Georgia law authorized to provide
recreational, governmental, public health, and similar activities and facilities to citizens and is
desirous of improving its ability to do so; and
WHEREAS, MSC is a non-profit corporation engaged in providing educational and
recreational programs and facilities dealing primarily with beach and marine life, as well as
environmental issues; and
WHEREAS, the City owns certain real property located in the north end of Tybee Island
in the North Beach parking lot (hereinafter the "Property" or the "Premises"); and
WHEREAS, the location of the Property is suitable for the construction of a municipal
building to be used for MSC purposes, including recreation, cultural and education; and
WHEREAS, in light of the volunteer services provided by MSC in the context of
enhancing the community of the City and tourism therein; and
WHEREAS, on March 18, 2003, the voters of Chatham County voted in favor of a
Special Purpose Local Option Sales Tax ("SPLOST") Referendum for which certain capital
improvement projects as designated in Attachment 4 of the SPLOST Resolution of The Board of
Commissioners of Chatham County adopted on February 14, 2003 ("SPLOST Resolution"); and
WHEREAS, the Center was and is one of the projects listed for the City in the
Intergovernmental Agreement for the Distribution of Special Purposes Sales and Use Tax
Proceeds by the County to Municipalities for Capital Outlay Projects, for General Obligation
Debt, and Road, Street and Bridge Purposes by and among Chatham County and eight
municipalities of Chatham County, including the City("Intergovernmental Agreement"); and
WHEREAS, other capital improvement projects identified in the SPLOST Resolution and
the Intergovernmental Agreement are enumerated as cultural, recreational, and historic facilities
along with projects that will result in services to assist the health, safety, and welfare on a
county-wide basis; and
WHEREAS, the parties have been pursuing the construction of the Center for many years
and the leasing of the Property and the Center by the City to MSC;
NOW, THEREFORE, in consideration of the premises hereof and other good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties
hereto agree as follows:
ARTICLE I-DEFINITIONS
Unless the context otherwise specifies or requires, the following terms shall have the
meanings specified herein:
1.1 Base Rent. The term "Base Rent" shall mean the sum of Ten Dollars ($10.00) per
calendar year beginning in 2014.
1.2 Commencement Date. The term "Commencement Date" shall be as of ,2013.
1.3 Event of Default. The term"Event of Default"shall be as defined in Section 15.1.
1.4 Expiration Date. The term "Expiration Date" shall mean December 31, 2028.
1.5 City's Address For Notices. The term "City's Address for Notices" shall mean:
CITY OF TYBEE ISLAND, GEORGIA, P.O. Box 2749, Tybee Island, Georgia,
31328, Attention: Diane Schleicher, City Manager, with a copy to Edward M.
Hughes, Esq., Callaway, Braun, Riddle & Hughes, P.C., P.O. Box 9150, Savannah,
Ga. 31412 (or their successors).
1.6 Premises/Property. The term "Premises" or "Demised Premises" or "Leased
Premises" or "Property" shall mean that certain parcel of real property on the north
end of Tybee Island in the North Beach parking lot City of Tybee Island, Chatham
County, Georgia as more particularly described on Exhibit "A".
1.7 MSC's Address For Notices. The term "MSC's Address for Notices" shall mean:
TYBEE ISLAND MARINE SCIENCE FOUNDATION, INC.,
, Tybee Island ,Georgia, 31328 Attention: Maria Procopio,with a copy to:
Harold Yellin, Esq., Hunter, Maclean, Exley and Dunn, P.C., 200 E. Saint Julian
Street, Savannah, GA 31401 (of their successors).
Page 2
1.8 MSC's Permitted Uses. The term "MSC's Permitted Uses" shall mean the
construction and operation of the Center as a cultural, educational, recreational and
museum facility to provide programs and undertake projects related to beach and
marine life.
1.9 Transaction Closing Date. The term "Transaction Closing Date" shall mean the
date hereof.
ARTICLE II-PREMISES
2.1 Lease of Premises. City hereby leases the Premises to MSC, and MSC hereby
leases the Premises from City, upon all of the terms, covenants and conditions contained in this
Lease, subject to (i) any state of facts an accurate survey of the Premises would show; (ii) any state
of facts a personal inspection would show; (iii)rights, easements and restrictions of record; and(iv)
all present and future state or federal laws, orders and regulations.
2.2 Acceptance of Premises. MSC acknowledges that City has not made any
representation or warranty with respect to the condition of the Premises or with respect to its
suitability or fitness for the conduct of MSC's Permitted Use or for any other purpose, and MSC
acknowledges that it is accepting the Premises "AS IS."
ARTICLE III-TERM
3.1 Term. Unless sooner terminated as provided in this Lease, the term of this Lease
(the "Term" or "Lease Term") shall be for the period commencing on the Commencement Date
described in Section 1.2 of this Lease and ending on the Expiration Date described in Section 1.4
of this Lease.
ARTICLE IV-RENTAL; PAYMENT OF OPERATING EXPENSES AND OTHER
CHARGES
4.1 Base Rent. During the Lease Term, MSC shall pay to City as rental for the
Premises the Base Rent in the manner described in Section 1.4. City acknowledges receipt, as of the
date hereof, of advance payment by MSC in the amount of$20 for the first two (2) calendar years
of the Term, i.e. calendar years 2014 and 2015.
4.2 Expenses and Other Charges. MSC shall, during the term of this Lease, as
additional rent, pay and discharge punctually, as and when the same shall become due and payable,
and before any governmental impositions and charges and obligations owed to governmental
authorities of every kind and nature whatsoever, extraordinary as well as ordinary and each and
every installment thereof which shall or may during the term of this Lease be charged, levied, laid,
assessed, imposed, become due and payable or liens upon, or for, or with respect to,the Premises or
any part thereof, the buildings and improvements appurtenances or equipment owned by MSC
thereon or therein or any part thereof, together with all interest and penalties thereon, under or by
Page 3
virtue of all present or future laws, ordinances, requirements, orders, directives, rules or regulations
of the federal, state, and local governments whatsoever during the term of this Lease.
4.3 Payment. The Base Rent for years 3-15 ($10.00 per year) shall be paid on or
before January 2nd of each year.
4.4 Additional Rent. For purposes of this Lease, all amounts payable by MSC that
inure to the benefit of City pursuant to this Lease, whether or not denominated as such, (e.g.
insurance pursuant to Article X) shall constitute additional rent hereunder. Such additional rent,
together with the Base Rent, shall sometimes be referred to in this Lease as "Rent."
4.5 Net Lease. Notwithstanding anything to the contrary herein, the Base Rent
hereunder shall be absolutely net to City so that this Lease shall yield, net to City, the Base Rent
specified in Section 1.1 and Section 4.1 hereof in each year of the Lease Term and that all
impositions, insurance premiums,utility charges,maintenance,repair and replacement expenses, all
expenses relating to compliance with laws (including, without limitation, and except as otherwise
provided herein, Environmental Laws), and all other costs, fees, charges, expenses, reimbursements
and obligations of every kind and nature whatsoever relating to the Premises which may arise or
become due during the Lease Term or by reason of events occurring during the Lease Term shall be
paid or discharged by MSC as Rent hereunder.
ARTICLE V—CONSTRUCTION OF IMPROVEMENTS AND TITLE
5.1 Construction of Improvements. MSC shall construct, or cause to be constructed,
all buildings, fixtures, equipment and components thereof, of every kind, including, all driveways,
parking areas, landscaping, sidewalks and all other areas of the Premises (the "Improvements") in
accordance in accordance with plans and specifications as approved by the City in writing and in
compliance with all applicable laws.
5.2 Title to Improvements. Title to all Improvements situated or erected on the
Premises by MSC shall remain solely in the City. Upon the expiration or earlier termination of this
Lease all of MSC's right and interest in and to the Premises and the Improvements shall
automatically and without notice vest in City and MSC shall quit possession and occupancy and
surrender the Premises and all Improvements thereon to City. Notwithstanding the foregoing, title
to any moveable equipment and other personal property installed by MSC and located upon the
Premises and not fixtures and which may be removed without damage to the Improvements and
without impairing its value shall remain in MSC provided that MSC removes the same within a
reasonable period of time, not to exceed thirty(30) days following the expiration or termination of
this Lease.
Page 4
ARTICLE VI-USE OF PREMISES
6.1 MSC's Permitted Use. MSC shall use the Premises only for MSC's Permitted Use
as set forth in Section 1.8 above and shall not use or permit the Premises to be used for any other
purpose without the prior written consent of City. MSC shall, at its sole cost and expense, obtain
all governmental licenses and permits required to allow MSC to conduct MSC's Permitted Uses.
City disclaims any warranty that the Premises are suitable for MSC's use and MSC acknowledges
that it has had a full opportunity to make its own determination in this regard.
6.2 Compliance With Laws and Other Requirements.
(A) MSC shall cause the Premises to comply with all laws, ordinances,
regulations and directives of any governmental authority having jurisdiction, including
without limitation, any certificate of occupancy and any law, ordinance, regulation,
covenant, condition or restriction affecting the Premises which in the future may become
applicable to the Premises (collectively"Applicable Laws").
(B) MSC shall not use the Premises, or permit the Premises to be used in
any manner which violates any Applicable Law.
6.3 Hazardous Materials.
(A) From and after the date of this Lease, MSC shall not cause or permit any
"Hazardous Materials" (as defined herein) to be "handled" (as defined herein) upon, about,
above or beneath the Premises or any portion of the Improvements by or on behalf of a
Responsible Party (as defined herein), except in compliance with Environmental Laws (as
defined herein) and this Lease. Any such Hazardous Materials so handled during the Term
of this Lease, or the presence of which is a result of the act or omission of a Responsible
Party, shall be known as "MSC's Hazardous Materials." Notwithstanding the foregoing,
normal quantities of those Hazardous Materials customarily used in construction may be
handled at the Premises. MSC's Hazardous Materials shall be handled at all times in
compliance with all applicable Environmental Laws.
(B) Notwithstanding the obligation of MSC to indemnify City pursuant to this
Lease, MSC shall, at its sole cost and expense, promptly take all actions required by any
federal, state or local governmental agency or political subdivision, which requirement
arises from the handling of MSC's Hazardous Materials upon, about, above or beneath the
Premises. Such actions shall include, but not be limited to, the investigation of the
environmental condition of the Premises, the preparation of any feasibility studies or reports
and the performance of any cleanup,remedial,removal or restoration work. MSC shall take
all actions necessary to satisfy any remediation requirements under applicable
Environmental Laws, shall provide reasonably detailed notice to City of any such actions
(prior to the action being taken unless prior notice is not reasonably possible) and, if
reasonably possible, provide City with a reasonable opportunity to comment upon such
proposed actions prior to their being undertaken(provided that in no event shall prior notice
to City or City's approval be required before any such action may be taken in any event).
Page 5
(C) "Environmental Laws" means and includes all now and hereafter
existing statutes, laws, ordinances, codes, regulations, rules, rulings, orders, decrees,
directives, policies and requirements by any federal, state or local governmental authority
regulating, relating to or imposing liability or standards of conduct concerning hazardous
materials or the environment, including,without limitation,the following:
The Comprehensive Environmental Response, Compensation,
and Liability Act, as amended (42 U.S.C. §9601, et seq.) (together with
the regulations promulgated thereunder, "CERCLA") the Resource
Conservation and Recovery Act, as amended (42 U.S.C. §6901, et seq.)
(together with the regulations promulgated thereunder, "RCRA"), the
Federal Water Pollution Control Act, as amended (22 U.S.C. §1251, et
seq.) (together with the regulations promulgated thereunder, "CWA"),the
Clean Air Act, as amended (42 U.S.C. §7401, et seq.) the Hazardous
Materials Transportation Act, as amended (49 U.S.C. §1801, et seq.)
(together with the regulations promulgated thereunder, "HMTA"), the
Federal Insecticide, Fungicide and Rodenticide Act, as amended (7
U.S.C. §136, et seq.) (together with the regulations promulgated
thereunder, "IRFA"), the Safe Drinking Water Act, as amended (42
U.S.C. §300f, et seq.) (together with the regulations promulgated
thereunder, "SDWA"), the Toxic Substances Control Act, as amended
(15 U.S.C. §2601, et seq.) (together with the regulations promulgated
thereunder "TSCA"), the Georgia Hazardous Waste Management Act
(O.C.G.A. §12-8-60, et seq.), the Georgia Water Quality Control Act
(O.C.G.A. §12-5-20 et seq.), and the Georgia Air Quality Act (O.C.G.A.
§12-9-1 et seq.).
(D) "Hazardous Materials" means (a) any material or substance: (i) which is
defined or becomes defined as a "hazardous substance," "hazardous waste," "infectious
waste," "chemical mixture or substance," or "air pollutant" under Environmental Laws; (ii)
containing petroleum, crude oil or any fraction thereof; (iii) containing polychlorinated
biphenyls (PCB's); (iv) containing asbestos; or (v) which is radioactive; (b) any other
material or substance displaying toxic, reactive, ignitable, or corrosive characteristics, as all
such terms are used in their broadest sense, and are defined or become defined by
Environmental Laws; or(c)materials which cause a nuisance upon or waste to the Premises
or any portion of the Improvements.
(E) "Handle," "handle," "Handled," "handled," "Handling" or "handling"
shall mean any installation, handling, generation, storage, treatment, use, disposal,
discharge, release, manufacture, refinement, presence, migration, emission, abatement,
removal, transportation, or any other activity of any type in connection with or involving
Hazardous Materials; excluding any Hazardous Materials existing on the Premises prior to
the Commencement Date, and any migration of Hazardous Materials onto the Premises
from a source not at the Premises.
Page 6
(F) "Responsible Party" shall mean MSC, its subtenants and its assignees,
any occupants of all or any portion of the Premises, and their respective contractors, clients,
officers, directors, employees, agents, customers, suppliers, guests and invitees, or any of
them as the case may be during the Term of this Lease.
(G) MSC shall expressly not be responsible for, and to the extent
allowable by law, shall be entitled to seek contribution or other appropriate relief from
the City with respect to any liability and City shall indemnify MSC for claims relating to:
(i) a violation of Environmental Laws or the presence of Hazardous Materials on, in or
under all or any portion of the Leased Premises attributable to the period prior to the
Commencement Date, unless said violation of Environmental Laws was by or the
presence of Hazardous Materials was caused by MSC or a Responsible Party; or (ii) any
Hazardous Materials on, in or under all or any portion of any parcels of land owned by
City that are adjacent to the Leased Premises (the term "adjacent" as used herein being
deemed to mean parcels of land sharing a common boundary line with the Leased
Premises), unless the presence of Hazardous Materials was caused by MSC or a
Responsible Party; or (iii) any violation of Environmental Laws at or relating to the
Leased Premises which is attributable to conditions existing on or prior to the
Commencement Date, unless said violation of Environmental Laws was caused by MSC
or a Responsible Party (collectively, "Claims as to Pre-Existing Environmental
Conditions"). City agrees that it shall not object to or resist being joined as a named party
as to the adjudication of such Claims as to Pre-Existing Environmental Conditions;
however, nothing herein precludes City from asserting any defense to the Claims or
asserting any counterclaim that City may have or from seeking indemnification or
contribution from third parties.
ARTICLE VII-UTILITIES AND SERVICES
7.1 Services. The City as landlord shall have no obligation to provide utility services or
connections into the Premises and MSC, at its sole expense, shall arrange with the appropriate
utility company or governmental entity to install all connections and shall, without fail, maintain in
continuous operation during the entire term of the Lease all such utility services. The City reserves
the right during the Term of this Lease to grant easements for public utility purposes on, over or
below the Premises without any abatement in rent, and without the same being deemed an event of
default of City hereunder, provided that said easements do not unreasonably interfere with the
normal operation of the Premises by MSC. City shall not be required to pay for any service,
supplies or upkeep in connection with the Premises.
ARTICLE VIII-MAINTENANCE AND REPAIRS
8.1 City's Obligations. During the Lease Term, except as may be otherwise provided
herein, the City shall have no obligation to make or perform any repairs or maintenance of any kind
whatsoever, all of which shall be MSC's sole obligation.
Page 7
8.2 MSC's Obligations.
(A) During the Lease Term, MSC shall, at its risk and at its own sole cost
and expense, maintain the Premises and all Improvements located in or on the Premises in
good repair and condition (including all necessary replacements), including, but not limited
to the roof, outer walls and foundations of all Buildings, the drainage facilities and fire
safety sprinkler systems, heating, ventilation and air conditioning systems, all glass
elements and doors and regular removal of debris. MSC shall take good care of the
Premises and Improvements and suffer no waste.
(B) MSC shall, at its own cost and expense, repair or replace any damage or
injury to all or any part of the Premises and Improvements thereon.
(C) Except and only to the extent permitted by Section 6.3(A) above, MSC
shall not permit during the Lease Term, as extended from time to time, any Hazardous
Materials to be released,brought upon, stored,produced, emitted, disposed of or used upon,
about or beneath the Premises in violation of Environmental Law. MSC shall be liable for
the consequences of, and responsible for removal thereof, at its sole expense, any
Hazardous Materials on the site resulting from an Event of Default under this Section.
MSC's obligations under this Section 8.2 shall survive the expiration or earlier termination
of this Lease. Nothing contained herein shall limit MSC's right or ability to seek
contribution or other appropriate relief from the City with respect to any liability for
claims relating to: (i) a violation of Environmental Laws or the presence of Hazardous
Materials on, in or under all or any portion of the Premises attributable to the period prior
to the Commencement Date; or (ii) any Hazardous Materials on, in or under all or any
portion of any parcels of land owned by City that are adjacent to the Premises (the term
"adjacent" as used herein being deemed to mean parcels of land sharing a common
boundary line with the Premises); or ((iii) any violation of Environmental Laws at or
relating to the Premises which is attributable to conditions existing on or prior to the
Commencement Date.
8.3 City's Rights. City and its contractors shall have the right, upon reasonable
advance notice, at reasonable times, to enter upon the Premises to exercise any right reserved to
City hereunder; provided,that MSC's use and enjoyment of the Premises shall not be disturbed.
ARTICLE IX-IMPROVEMENTS,ADDITIONS AND ALTERATIONS
9.1 Plans and Specifications, Costs and Amendments Thereto. All Plans and
Specifications for the construction of the Improvements, including any site plan,
parking plan and contracts or leases for parking, must be approved in writing by the
City. MSC shall take no action to effectuate any material amendments, modifications
or any other alterations to the Plans and Specifications (except to the extent set forth
in Section 9.3 herein unless the City has approved such, in writing and in advance,
which approval shall not be unreasonably withheld, conditioned or delayed.
Page 8
9.2 Construction Contracts and Payment.
(A) All contracts for the design (including but not limited to site plan
drawings, engineering and architect plans) and contracts for construction of the
Improvements shall be between MSC and the person or entity providing the services
thereunder; however, all contracts and agreements for design and construction services
shall be approved by the City in writing and shall contain the following requirements and
provisions (or words of similar nature):
i. The funds for the design and construction described herein are
being provided by the City of Tybee Island, Georgia pursuant to the
SPLOST Resolution of The Board of Commissioners of Chatham County
adopted on February 14, 2003, the Special Purpose Local Option Sales Tax
("SPLOST") Referendum approved by the voters of Chatham County on
March 18, 2003 and pursuant to the February 14, 2003 Intergovernmental
Agreement for the Distribution of Special Purposes Sales and Use Tax
Proceeds by the County to Municipalities for Capital Outlay Projects, for
General Obligation Debt, and Road, Street and Bridge Purposes by and
among Chatham County and eight municipalities of Chatham County,
including the City of Tybee Island, Georgia and thus this contract and any
amendments thereto are subject to the written approval of the City of Tybee
Island and are of no effect until such written approval is provided;
ii. All requests for payment shall be submitted to MSC by the 7th
day of the month for work and services performed through the last day of the
previous month;
iii. All requests for payment are subject to the approval of the City of
Tybee Island, Georgia and payment will not be made until the payment
request is approved by the City of Tybee Island and the funds are received
by MSC;
iv. A retainage provision for 10% of the total value of the contract;
v. Full compliance with the Georgia Local Government Public Works
Construction Law, O.C.G.A. § 36-91-1 et seq., including but not limited to the
provision of performance bonds pursuant to O.C.G.A. § 36-91-70 et seq. and
payment bonds (and notice of commencement) pursuant to O.C.G.A. § 36-91-
90 et seq.;
vi. Any civil action brought against MSC and/or the City shall be
maintained in the State and Superior Courts of Chatham County or the
United States District Court for the Southern District of Georgia, Savannah
Division and that no venue of any action against the City or jurisdiction over
the City shall lie in any other court; and
Page 9
vii. The City shall be designated as a beneficiary of all
warranties, express or implied.
(B) MSC shall prepare a request for payment to the City on or
before the 15th day of each month providing copies of all requests for payment
from its general contractor, engineer, architect, etc. received for services provided
in the previous month and MSC shall certify the performance of the work for
which payment is sought. Contingent upon the City's review of the work
completed and the City's approval of the work the City shall issue payment to
MSC. Final payment by the City, including all retainage, shall be made upon
completion of all the work, including punch list completion, acceptance of the
work by the City and issuance of a certificate of occupancy.
(C) MSC shall fully comply with the contracting and bidding
requirements of O.C.G.A. § 36-91-20 et seq.
9.3 Alterations. MSC may make any additions, alterations or changes (sometimes
collectively referred to herein as "Alterations") in or to the Improvements subject, however, to the
following conditions:
(a) No Alterations shall be made that would tend to impair the structural
soundness of the Improvements;
(b) No Alterations shall be undertaken until MSC shall have procured,
to the extent the same may be required from time to time, all permits and
authorizations of all applicable governmental authorities.
(c) Any Alterations shall be performed in good and workmanlike
manner and in compliance with all applicable legal requirements and all applicable
Insurance Requirements; and
(d) The City must approve all substantial alterations prior to the
commencement of work ("substantial" meaning single alterations costing in excess
of $5,000 or alterations that affect the functional design or scope of the
Improvements).
9.4 Liens. MSC shall pay when due all costs for work performed and materials
supplied to the Premises. MSC shall not suffer nor permit any construction liens to be filed or exist
against the Premises or any part thereof, by reason of work, labor, services or materials supplied or
claimed to have been supplied to MSC or its agent, contractors, subcontractors and subtenants. If
any such construction lien shall at any time be filed, MSC shall within thirty(30) days after notice
of the filing thereof, cause the same to be discharged of record by payment, deposit, bond, order of
court of competent jurisdiction or otherwise. If MSC fails to pay and remove or bond such lien,
claim or encumbrance within such thirty (30) days, City, at its election, may pay and satisfy the
same and in such event the sums so paid by City shall be deemed to be additional rent due and
Page 10
payable by MSC at once without notice or demand as per Section 4.4 hereof. During the progress
of such work, MSC shall, upon City's request, furnish City with sworn contractor's statements and
lien waivers covering all work theretofore performed and MSC shall otherwise observe and comply
with any and all requirements under Georgia Law, and shall indemnify, defend and hold City
harmless from any loss, cost, or damage incurred by City as a result of the assertion of any
construction lien claim. NOTHING HEREIN IS DEEMED TO BE A WAIVER OF THE
PROHIBITION AGAINST LIENS UPON PUBLIC PROPERTY.
9.5 Lease Termination. All Alterations shall become a part of the Premises and shall
become the property of City upon the expiration or earlier termination of this Lease.
ARTICLE X-INDEMNIFICATION AND INSURANCE
10.1 Indemnification. MSC and MSC's permitted assignees and subtenants agree to
protect, indemnify, hold harmless, and defend the City, and its elected or appointed officials, agents
and employees, successors and assigns (collectively "Indemnities") (except for any events arising
out of the negligence, breach of contract, or willful acts of City, its agents or employees and except
with respect to any Pre-Existing Environmental Condition) from and against:
(A) any and all loss, cost, damage, liability or expense as incurred
(including but not limited to actual reasonable attorneys' fees and legal costs) arising out of
or related to any claim, suit or judgment brought by or in favor of any person or persons for
damage, loss or expense due to, but not limited to, bodily injury, including death, or
property damage sustained by such person or persons which arises out of, is occasioned by
the use or occupancy of the Premises or any portion of the Improvements by MSC or the
acts or omissions of MSC or its agents, employees, contractors, clients, invitees or
subtenants relating to the Premises. Such loss or damage shall include, but not be limited
to, any injury or damage to, or death of, City's employees or agents or damage to the
Premises or any portion of the buildings or improvements located thereon.
(B) any and all Environmental Damages which arise from (i) the Handling
of any MSC Hazardous Materials, as defined in Section 6.3 or (ii) the breach of any of the
provisions of this Lease. For the purpose of this Lease, "Environmental Damages" shall
mean (a) all claims, judgments, damages, penalties, fines, costs, liabilities, and losses,
(including, without limitation, diminution in the value of the Premises) (b) all reasonable
sums paid for settlement of claims, reasonable actual attorneys' fees, consultants fees and
experts fees; and (c) all costs incurred by City in connection with investigation or
remediation relating to the Handling of MSC's Hazardous Materials to the extent MSC does
not perform all such investigation and remediation as is required by applicable
Environmental Laws. To the extent that City is strictly liable under any Environmental
Laws as owner, MSC's obligation to City and the other indemnitees under the foregoing
indemnification shall likewise be without regard to fault on MSC's part with respect to the
violation of any Environmental Law which results in liability to the indemnitees. MSC's
obligations and liabilities pursuant to this Section 10.1 shall survive the expiration or earlier
termination of this Lease.
Page 11
(C) any and all testing or investigation as may be required by any
governmental agency for the purpose of investigating the presence of MSC's Hazardous
Materials that may not be in compliance with Environmental Laws.
(D) notwithstanding anything to the contrary contained herein, nothing shall
be interpreted or used to in any way affect, limit, reduce or abrogate any insurance coverage
provided by any insurers to either MSC or City.
Nothing herein shall be construed to infer or imply that MSC is a partner, joint venturer, agent,
employee, or otherwise acting by or at the direction of the City.
10.2 Insurance.
(a) MSC shall maintain or shall cause to be maintained the following insurance
coverages:
i. Commercial General Liability Insurance (Primary and Umbrella).
Commercial liability insurance or equivalent with limits of not less than
$1,000,000 with respect to any injury to any one person; $1,000,000 with
respect to injury or damage to property; and $3,000,000 general aggregate
for bodily injury, personal injury and property damage liability. In
addition, MSC shall obtain umbrella coverage of $5,000,000. Coverage
extensions shall include the following: premises and operations,
subcontractors, cross liability, products and completed operations, broad
form property damage, blanket contractual liability, explosion, collapse
and underground coverages (XCU), personal injury and errors and
omissions. The City is to be named as an additional insured.
ii. Property/Casualty Insurance_ MSC shall procure and maintain, at its sole
expense, "all-risk" property insurance, including wind and flood insurance,
in an amount not less than one hundred percent (100%) of the replacement
cost covering all Buildings and Improvements in and upon the Premises.
The proceeds of such insurance shall be used for the repair or replacement of
the property so insured.
iii. Insurance Endorsement. All policies shall be endorsed (a) to name the
City as an additional insured and as a loss payee (as applicable); and (b) to
waive subrogation rights against the City.
iv. Insurance Companies. All insurance shall be carried with companies that
are authorized to do business in the State of Georgia and rated not less than
A-VIII in Best's Insurance Guide and a Standard and Poor's claims paying
ability rating of not less than AA.
Page 12
v. Errors And Omissions Insurance. The Principal Architect, other
architects, engineers, and each of their subcontractors shall obtain and
maintain errors and omissions/professional liability coverage at their own
expense in the amount of not less than $2,000,000 per occurrence. The
insurance company, form, and content of such coverage shall be subject to
the reasonable approval of the City; and
vi. Builder's Risk Insurance. Builder's risk insurance, in a form to be
submitted to and approved by the City, insuring all work in place and all
materials to be used for such work, with such insurance to be payable on a
replacement cost basis, regardless of whether partial payment has been
made by the City or MSC. The builder's risk insurance need not be carried
on landscape work. Such insurance shall insure the interests of
contractors, sub-contractors and suppliers as well as MSC and the City as
their interests may appear. The builder's risk insurance shall not contain a
deductible in excess of $1,000 without the prior approval of the City.
MSC may cause this insurance to be terminated on buildings as of the date
taken over for occupancy by MSC.
(b) Applicable policies must be in place on the date hereof
MSC shall provide the City with a certificate of insurance (or, at the City's
option, copies of the applicable policies) as evidence of the limits and
coverages described above, which shall be acknowledged and accepted by
the City by issuing a notice of acceptance and which shall affirmatively
state that:
a. The coverage is written on an occurrence form;
b. The City is named as an additional insured and loss payee (as
applicable); and
c. Subrogation is waived.
ii. No such policy shall be subject to cancellation or modification without thirty
(30) days prior written notice to the City. MSC shall furnish the City with a
replacement certificate with respect to any insurance not less than thirty(30)
days prior to the expiration of the current policy. MSC shall require its
contractors to comply with this provision.
iii. In the event that MSC's insurance, or the insurance required by any other
entity under this Lease, is scheduled to expire during the Term of this
Lease, MSC or the applicable contractor shall provide the City with copies
of renewal certificates thirty (30) days prior to the expiration date of the
expiring coverage. MSC shall require its contractors to comply with this
provision.
Page 13
iv. The insurance contracts shall require the insurance company to notify the
City in the event of a substantial change in coverage during the policy
term.
10.3 Claims. In the event of an insurance claim under the insurance policies
contemplated by Section 10.2 hereof, MSC will notify the City within sixty (60) days following
discovery of the claim by MSC. In addition, MSC will investigate and furnish the City with
reports of all accidents, claims and known potential claims for damage or injury and will
cooperate with its insurers and those of the City.
10.4 Restoration, Casualty, Condemnation. If any act or occurrence of any kind or
nature (including any taking by condemnation or any casualty) shall result in damage to or loss or
destruction of the Improvements, in whole or in part, MSC, to the extent that insurance proceeds
or condemnation proceeds and other funds, if any, made available permit, shall promptly cause
the restoration, reconstruction, and/or repair of the Improvements as nearly as possible to its
condition and character immediately prior to such taking or casualty. If such condemnation or
insurance proceeds and other available funds are not sufficient or restoration is otherwise
determined to be not feasible, such proceeds shall be paid to the City.
10.5 Waiver of Subrogation. Each party hereby waives any right of recovery against
the other for injury or loss covered by insurance, to the extent of the injury or loss covered thereby.
Any policy of insurance to be provided by MSC pursuant to this Article X shall contain a clause
denying the insurer any right of subrogation against City.
10.6 Failure to Insure. If MSC fails to maintain any insurance which MSC is required
to maintain pursuant to this Article X, the City may, but shall not be obligated to, upon notice to
MSC (said notice may be delivered via facsimile, e-mail, or by hand) promptly procure such
policies of insurance, in which case MSC shall reimburse City upon demand for the cost thereof,
together with interest thereon at the lesser of the maximum rate permitted by law, if any, or twelve
percent (12%) per annum from the date due to the date paid, as additional rent and, in addition,
MSC shall be liable to City for any loss or cost resulting from such failure to maintain. MSC may
not self-insure against any risks required to be covered by insurance.
ARTICLE XI-DAMAGE OR DESTRUCTION
11.1 Continuation of Lease. This Lease shall not terminate, nor shall there by any
abatement of rent or any other charges to be paid by MSC hereunder, or relief from any other
obligations of MSC hereunder as a result of the partial or total destruction of the Premises or the
Improvements.
11.2 Destruction of Premises. If the Premises and/or any Improvements are damaged
by any casualty, MSC shall promptly and with due diligence reconstruct and/or repair any damage
to the Premises and the Improvements in the manner and as required by Sections 5.1, 8.2, and 10.4
above.
Page 14
11.3 Waiver. The provisions contained in this Lease shall supersede any contrary laws
now or hereafter in effect relating to damage or destruction.
ARTICLE XII-CONDEMNATION
12.1 Condemnation. If the entire Premises or a portion thereof shall be taken by
condemnation, sale in lieu of condemnation or in any other manner for any public or quasi-public
purpose (collectively "Condemnation"), as to render, in MSC's reasonable judgment, the balance
unusable by MSC, this Lease shall terminate with respect to the entire Premises or to such portion,
as the case may be, on the date that title or possession to the Premises is taken by the condemning
authority, whichever is earlier, but in the event that less than the entire Premises is taken by
Condemnation, only after written notice from MSC with respect to MSC's intent as to the
remainder of the Premises. In the event that this Lease is not terminated as provided above, the
Lease shall continue in full force and effect and unmodified as to the remainder of the Premises.
Notwithstanding any provision contained herein, in the event of a partial taking the
Improvements shall be rebuilt and restored subject to the determination of feasibility by the City,
12.2 No Apportionment of Award. If there is a Condemnation, whether whole or
partial,the City shall be entitled to receive and retain the entire award and MSC shall have no claim
to any portion of the award or any right to make a separate claim for an award.
ARTICLE XIII—NO LEASEHOLD MORTGAGES
13.1 No Right to Mortgage Leasehold. MSC shall have no right to mortgage its
leasehold interest in the Premises to any entity whatsoever.
ARTICLE XIV-ASSIGNMENT AND SUBLETTING
14.1 Restriction on Assignment. MSC shall not, without the prior written consent of
City, either voluntarily or by operation of law, assign, or otherwise transfer this Lease or any
interest herein,nor sublet or encumber all or any portion of the Premises. Any person to whom any
Transfer is attempted without such consent shall have no claim, right or remedy whatsoever
hereunder against City, and City shall have no duty to recognize any person claiming under or
through the same. Any assignment, subletting or other action in violation of the foregoing shall be
void and, at City's option, shall constitute a material breach of this Lease
14.2 Prohibited Transfers. MSC agrees that it will not, (1) assign this Lease or any
of its rights under this Lease as to all or any portion of the Premises and Improvements, or (2)
make or permit any voluntary or involuntary total or partial sale, lease, assignment, conveyance,
mortgage, pledge, encumbrance or other transfer of any or all of the Premises or Improvements
or the occupancy or use thereof, without first obtaining the City's express written consent thereto.
Page 15
14.3 City's Consent; Standards. The City shall be free to withhold its consent to any
assignment or sublease of all of the Premises and Improvements in the City's sole and absolute
discretion.
14.4 Non-Waiver. The consent by City to any assignment or subletting shall not relieve
MSC or any person claiming through or by MSC, of the obligation to obtain the consent of City,
pursuant to this Article XIV,to any further assignment or subletting.
ARTICLE XV-DEFAULT AND REMEDIES
15.1 Events of Default By MSC. An Event of Default shall, at City's option,be deemed
to have occurred hereunder following the expiration of all applicable notice and cure periods, if:
(A) The failure by MSC to pay Base Rent or make any other payment
required to be made by MSC hereunder as and when due and the continuation of such
failure for Thirty(30) days following written notice from City.
(B) The making by MSC of an assignment of this Lease or any sublease of
all or part of the Premises except as expressly permitted under Article XIV of this Lease.
(C) A notice of intent to cancel insurance coverage by an insurer that is
not cured within fifteen (15) days of written notice from City (provided that MSC shall
have up to thirty (30) days if the insurance shall remain in effect for such thirty (30) day
period).
(D) The cancellation, lapse or failure to obtain the insurance coverage
required in Section 10.2, if not cured within five (5) days of written notice from City.
(E) The making by MSC of any general assignment for the benefit of
creditors or the filing by or against MSC of a petition under any federal or state bankruptcy
or insolvency laws (unless in the case of a petition filed against MSC the same is dismissed
within sixty(60) days after filing)the appointment of a trustee or receiver to take possession
of substantially all of MSC's assets at the Premises or MSC's interest in this Lease or the
Premises when possession is not restored within sixty (60) days; or the attachment,
execution or other seizure of substantially all of such assets located at the Premises or
MSC's interest in this Lease or the Premises if such seizure is not discharged within sixty
(60) days.
15.2 City's Right To Terminate Upon MSC Default. In the event of any event of
Default by MSC (after applicable notice and cure periods, as provided in Section 15.1 above), the
City shall have the right without further notice or demand to MSC except as provided in Section
13.3 and 13.10 and except as provided in Section 15.1 (MSC hereby irrevocably waiving all notices
and demands except as provided in Section 15.1), statutory or otherwise, to terminate this Lease
and MSC's right to possession of the Premises without terminating MSC's liabilities under this
Lease.
Page 16
15.3 City's Additional Remedies. In the event of an Event of Default of this Lease by
MSC, whether or not City elects to terminate this Lease as provided in Section 15.2 above, the City
may from time to time enforce all of its rights and remedies under this Lease, at law or in equity.
15.4 Right of City to Perform. All covenants and agreements to be performed by MSC
under this Lease shall be performed by MSC at MSC's sole cost and expense. If MSC shall fail to
pay any sum of money, other than Rent, required to be paid by it hereunder or shall fail to perform
any other act on its part to be performed hereunder, City, upon advance written notice to MSC and
reasonable opportunity to cure may, but shall not be obligated to, make any payment on MSC's
behalf without waiving or releasing MSC of its obligations under this Lease. Any sums so paid by
City and all necessary incidental out-of-pocket costs, together with interest thereon at the lesser of
the maximum rate permitted by law if any or twelve percent (12%) per annum, from the date of
such payment shall be payable to City as additional rent on demand and City shall have the same
rights and remedies in the event of nonpayment as in the case of an Event of Default by MSC in the
payment of Rent.
15.5 Non-Waiver. Nothing in this article shall be deemed to affect City's rights to
indemnification for liability or liabilities arising prior to termination of this Lease for personal
injury or property damages under the indemnification clause or clauses contained in this Lease. No
acceptance by City of a lesser sum than the Rent then due shall be deemed to be other than on
account of the earliest installment of such Rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and City may accept such check or payment without prejudice to City's right to recover
the balance of such installment or pursue any other remedy in the Lease provided.
15.6 Cumulative Remedies. The specific remedies to which City may resort under the
terms of the Lease are cumulative and are not intended to be exclusive of any other remedies or
means of redress to which it may be lawfully entitled in case of any breach or threatened breach by
MSC of any provisions of the Lease. In addition to the other remedies provided in the Lease,
including the right to terminate MSC's right of possession of the Premises and City shall be entitled
to a restraint by injunction of the violation or attempted or threatened violation of any of the
covenants, conditions or provisions of the Lease or to a decree compelling specific performance of
any such covenants, conditions or Provisions.
15.7 Default by City. City's failure to perform or observe any of its obligations under
this Lease shall constitute a default by City under this Lease only if such failure shall continue for a
period of sixty (60) days (or the additional time, if any, that is reasonably necessary promptly and
diligently to cure the failure) after City receives written notice from MSC specifying the default.
The notice shall give in reasonable detail the nature and extent of the failure and shall identify the
Lease provision(s) containing the obligation(s). If City shall default in the performance of any of its
obligations under this Lease (after notice and opportunity to cure as provided herein), MSC may
pursue any remedies available to it under the law and this Lease.
15.8 Force Majeure. No default in the performance of the terms, covenants or
conditions of this Lease on the part of MSC or the City (other than in the payment of any Rent)
shall be deemed to continue if and so long as the City or MSC, as the case may be, shall be
Page 17
delayed in or prevented from remedying the same due to Force Majeure; but if and when the
occurrence or condition which delayed or prevented the remedying of such default shall cease or
be removed, it shall be the obligation of the City or MSC, as the case may be, without further
delay, to commence the correction of such default or to continue and complete the correction
thereof.
ARTICLE XVI-ATTORNEYS FEES; COSTS OF SUIT
16.1 Attorneys' Fees. If either City or MSC shall commence any action or other
proceeding against the other arising out of, or relating to, this Lease or the Premises, the prevailing
party shall be entitled to recover from the losing party, in addition to any other relief, its reasonable
attorneys fees. In addition, MSC shall reimburse City, upon demand, for all reasonable attorneys'
fees incurred in collecting Rent or otherwise seeking enforcement against MSC, its sublessees and
assigns, of MSC's obligations under this Lease.
ARTICLE XVII-QUIET ENJOYMENT
17.1 Provided that MSC performs all of its obligations hereunder, MSC shall have
and peaceably enjoy the Premises during the Lease Term, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XVIII-HOLDOVER TENANCY
18.1 Holdover Tenancy. If MSC holds possession of the Premises after the expiration
or termination of the Lease Term, by lapse of time or otherwise, MSC shall become a tenant at
sufferance upon all of the terms contained herein except as to Lease Term. Without limiting the
foregoing, MSC hereby agrees to indemnify, defend and hold harmless the City, and its agents
contractors and employees, from and against any and all claims, liabilities, actions, losses, damages
(including without limitation, direct, indirect, incidental and consequential) and expenses
(including, without limitation court costs and reasonable attorneys' fees) asserted against or
sustained by any such party and arising from or by reason of such retention of possession, which
obligations shall survive the expiration or termination of the Lease Term.
ARTICLE XIX-NOTICES
19.1 Notices. All notices, demands and requests which are required to be given by the
City or MSC shall be in writing and shall be served by personal service on the recipient or as an
alternative to personal service, by mailing the same by registered or certified mail, postage prepaid,
or may be sent by overnight courier, addressed to the City at the address for City set forth in Section
1.5 above and to MSC at the address for MSC set forth in Section 1.7 above, unless a request for a
change in this address has been sent to the party giving the notice by registered or certified mail or
by overnight courier prior to the time when such notice is given. Any notice, including under
Article XIII, shall be deemed to have been given and served when actually received or receipt is
refused as evidenced by written verification.
Page 18
ARTICLE XX-MISCELLANEOUS
20.1 Amendments. This Lease may be amended by mutual agreement of the City and
MSC, provided that all amendments must be in writing and signed by both parties.
20.2 Successors. Except as expressly provided herein, this Lease and the obligations of
City and MSC contained herein shall bind and benefit the successors and assigns of the parties
hereto.
20.3 Memorandum of Lease. The City and MSC shall upon request of the other
execute a recordable Memorandum of Lease.
20.4 Governing Law. This Lease shall be governed by, and construed in accordance
with,the laws of the State of Georgia.
20.5 Severability. In the event any provision of this Lease is found to be unenforceable
the remainder of this Lease shall not be affected, and any provision found to be invalid shall be
enforceable to the extent permitted by law. The parties agree that in the event two different
interpretations may be given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the interpretation rendering
the provision enforceable shall be adopted.
20.6 Captions. All captions, headings, titles, numerical references and computer
highlighting are for convenience only and shall have no effect on the interpretation of this Lease.
20.7 Interpretation. MSC acknowledges that it has read and reviewed this Lease and
that it has had the opportunity to confer with counsel in the negotiation of this Lease. Accordingly,
this Lease shall be construed neither for nor against City or MSC, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms and the intent of the parties.
20.8 Time is of the Essence. Time is of the essence of this Lease and the performance
of all obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the date first
above written.
[Signatures on Following Pages]
Page 19
CITY:
Sworn to and subscribed before me, CITY OF TYBEE ISLAND, GEORGIA
this_day of , 2013.
By:
Witness Jason Buelterman, Mayor
Attest:
Janet LeViner, City Clerk
Notary Public
APPROVED AS TO FORM:
Edward M. Hughes, City Attorney
MSC:
Sworn to and subscribed before me, TYBEE ISLAND MARINE SCIENCE
this_day of ,2013. FOUNDATION, INC., a Georgia Non-Profit
Corporation
By:
Witness Michael Neal, President
Attest:
Notary Public Cathy Sakas, Secretary
SEAL
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES