HomeMy Public PortalAbout100_040_Marine Science Center Lease final draft 12-5-13 Draft 12-5-13
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, the City has the power and authority to dispose of or lease real property; 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:
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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 , 201_.
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, unless renewed
pursuant to Section 3.2.
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, dschliecher @cityoftybee.org, with a copy to Edward M. Hughes, Esq., Callaway,
Braun, Riddle & Hughes, P.C., P.O. Box 9150, Savannah, Ga. 31412, bhughes @cbrhlaw.com (or
their respective 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.,PO Box 1879, Tybee Island ,Georgia,
31328 Attention: Executive Director, maria @tybeemarinescience.org, with a copy to: Carson
Penney and Harold Yellin, Hunter, Maclean, Exley and Dunn, P.C., 200 E. Saint Julian Street,
Savannah, GA 31401, cpenney @huntermaclean.com and hyellin @huntermaclean.com(or their
respective successors).
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, museum and recreational facility, which shall
include, but not be limited to, providing programs and undertaking projects related to beach and
marine life.
1.9 Transaction Closing Date. The term "Transaction Closing Date" shall mean the date this Lease is
fully executed by all parties.
1.10 Method of Notice. MSC and the City shall follow the method of providing notices to the other
party outlined in Section 19.1 of this Lease.
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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."
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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, and if renewed as per Section 3.2,
"Lease Term"as used in this Lease shall be deemed to include any and all Renewal Terms.
3.2 Renewal Terms. . If no Event of Default (as hereinafter defined) shall have occurred and this
Lease shall otherwise be in full force and effect and so long as not deemed as being beyond the authority of the
City to enter into a Lease for a period exceeding fifteen (15) years, MSC shall have the right to extend the term
of this Lease for three (3) additional periods of five (5) years each (each five (5) year terms hereinafter called a
"Renewal Term" and collectively called "The Renewal Terms") by delivering written notice for such renewal to
City at least ninety (90) days, but not more than three hundred sixty (360) days, before the Initial Term or the
applicable Renewal Term expires. If MSC exercises the foregoing rights to extend the term of this Lease for one
or more Renewal Terms, all terms and provisions of this Lease (other than the Renewal Term) shall remain in full
force and effect, except that the Expiration Date shall be the last day of the last month of the fifth (5th) year after
the expiration of the initial Term or the previous Renewal Term, as applicable. In the event there exists an Event
of Default the foregoing right or ability of MSC to extend the term shall be terminated and non-exercisable by
MSC.
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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 1.1. 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 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 15th
of each calendar 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. maintenance and repairs) shall constitute
additional rent hereunder. Such additional rent, together with the Base Rent, shall sometimes be referred to in this
Lease as "Rent."
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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 (as hereinafter
defined).
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 furniture, equipment, inventory and other personal property
installed by MSC (including personal property which is uniquely the property of a marine science facility) and
located upon the Premises 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. Subject to the foregoing sentence, all
fixtures attached to the Improvements are to remain and become the possession of the City.
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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, which shall not be unreasonably withheld or delayed. 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).
(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:
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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.
(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 to the extent allowable by law 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
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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.
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ARTICLE VII-UTILITIES AND SERVICES
7.1 Services. The City 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 or damage any Improvements. City shall not be required to pay for any
service or supplies in connection with the Premises.
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ARTICLE VIII-MAINTENANCE AND REPAIRS
8.1 MSC's Obligations.
(A) Structural Repairs. MSC shall, at its risk and at its own sole cost and expense, for a period
of ten years after completion of construction of a specific portion of the Improvements (or completion of a
phase of construction) maintain in good repair and condition (including all necessary replacements),
including, but not limited to the roof, outer walls and foundations of all Buildings, all interior walls both
weight bearing and not weight bearing, floors and coverings, all glass elements and doors located in and
about said specific portion or phase. MSC shall take good care of the Premises and Improvements and
suffer no waste.
(B) Mechanical, Drainage and System Repairs. MSC shall, at its risk and at its own sole cost
and expense, for a period of five years after completion of construction of a specific portion of the
Improvements (or completion of a phase of construction) maintain in good repair and condition (including
all necessary replacements) the drainage facilities and fire safety sprinkler systems, heating, ventilation and
air conditioning systems located in and about said specific portion or phase and/or servicing said portion or
phase.
(C) Storm Damage Repairs. MSC shall, at its risk and at its own sole cost and expense, for a
period of ten years after completion of construction of a specific portion of the Improvements (or
completion of a phase of construction) shall repair all storm damage to the Premises and Improvements not
covered by insurance and shall be responsible for any cost of repair of storm damage not covered by
insurance or subject to the insurance deductible.
(D) Vandalism and Negligent Act Repairs. MSC shall, throughout the Lease Term at its own
cost and expense, repair or replace any damage or injury to all or any part of the Premises and
Improvements thereon caused by vandalism or the negligent acts or omissions of MSC, its employees and
agents, except to the extent that said cost and expense shall be covered by insurance.
As used in this Section 8.1 & Section 8.2 the term "date of completion of construction" for any
portion or phase shall be the date the certificate of occupancy is issued for said portion or phase.
8.2 City's Obligations. The City shall have the obligation: to make the Structural Repairs described
in Section 8.1(A) for a specific portion or phase upon the tenth anniversary of the date of completion of
construction of said portion or phase until the end of the Lease Term; to make the Mechanical, Drainage and
System Repairs described in Section 8.1(B) for a specific portion or phase upon the fifth anniversary of the date of
completion of construction of said portion or phase until the end of the Lease Term; and to make the Storm
Damage Repairs described in Section 8.1(C) for a specific portion or phase upon the tenth anniversary of the date
of completion of construction of said portion or phase until the end of the Lease Term. The City shall have no
obligation to make any of the Vandalism and Negligent Act Repairs described in Section 8.1(D) throughout the
Lease Term.
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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.
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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 which approval shall not be unreasonably withheld, conditioned or delayed.
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. The
maximum amount of SPLOST funds to be expended for architectural and engineering services and site planning
shall be Two Hundred Thousand Dollars ($200,000.00); however, this limit is not to prevent MSC from
expending more on these services, but to insure the availability of sufficient SPLOST funds for actual
construction costs, MSC shall not seek reimbursement or payment from the CITY for architectural and
engineering services and site planning costs and expenses in excess of this amount.
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,which approval shall not be
unreasonably withheld, conditioned, or delayed, and shall contain the following requirements and
provisions (or words of similar nature):
i. A portion of the funds for the design, engineering, construction or other work
and services 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. NOTE, THIS LANGUAGE SHALL NOT BE INCLUDED IN ANY
CONTRACT FOR ANY SPECIFIC PORTION OR PHASE OF CONSTRUCTION FOR
WHICH NO SPLOST FUNDS ARE TO BE USED;
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. If SPLOST funds are to be used for any portion of the payment requested, the
request for payment is subject to the approval of the City of Tybee Island, Georgia and
payment by MSC 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;
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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
vii. The City shall be designated as an additional 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 for which MSC is seeking
SPLOST funds for payment of any portion. 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 within fifteen (15) days of
receipt of the request for payment. 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 materially 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 structural alterations prior to the
commencement of work ("substantial" meaning single alterations costing in excess of$25,000 or
alterations that materially 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; provided, however, that any payment by MSC that is contingent upon SPLOST payments by the City
shall be made as soon as received from the City. 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
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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 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.
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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 "Indemnitees") (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
as per Sections 6.3(G) and 8.2(C)) from and against:
(A) any and all loss, cost, damage, liability or expense 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.
(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.
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10.2 Insurance.
(a) MSC shall maintain or shall cause to be maintained the following insurance coverages:
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. Personal Property Insurance. Property insurance in an amount not less than the full
replacement cost of all personal property located therein (minimum $100,000.00), against
direct and indirect loss or damage by fire, vandalism and malicious mischief and other
casualties and risks covered under "all risk, special extended coverage endorsement"
insurance
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.
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
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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.
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.
(c) The City shall maintain or shall cause to be maintained, 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 Improvements in and upon the Premises. The proceeds
of such insurance shall be used for the repair or replacement of the Property so insured.
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 in the Event of Casualty. If any act or occurrence of any kind or nature shall result
in damage to or loss or destruction of the Improvements, in whole or in part, the insurance proceeds, if any,
made available shall promptly be used for the restoration, reconstruction, and/or repair of the Improvements as
nearly as possible to its condition and character immediately prior to such casualty. If such insurance proceeds
and other available funds are not sufficient so that restoration, reconstruction, or repair are not to be undertaken,
or is otherwise determined to be not feasible, such proceeds shall be paid equitably divided between City and
MSC, based on formula provided for condemnation in Section 12.2.
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.
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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.
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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.
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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; however, the City shall not exercise its
right of eminent domain against the Premises..
12.2 Apportionment of Award. If there is a Condemnation, whether whole or partial, the City shall be
entitled to receive and retain the entire portion of the award for the value of the land and the portion of the award
for the Improvements shall be apportioned between City and MSC. City's portion of the award for the structure
and improvements shall be the amount of the total award multiplied by a fraction of which the numerator is the
total SPLOST funds expended and the denominator being the total costs of construction. MSC's portion of the
award for the structure and improvements shall be the amount of the total award multiplied by a fraction of which
the numerator is the total funds expended for construction less the total SPLOST funds and the denominator being
the total costs of construction. In the event of Condemnation, City shall be the sole representative in seeking the
award from the condemning authority and shall have full authority regarding settlement of the entire claim.
City and MSC shall use any award from a whole taking for the construction of a new marine science center
subject to the determination of feasibility by the City.
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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.
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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. Nothing herein
is intended to prevent or preclude MSC from allowing third parties to use a portion or all of the Premises for
properly permitted special events and said use shall not constitute a transfer of an interest in this Lease or a"sublet"
or"subletting"of the Premises under this Article XIV.
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.
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.
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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. Upon 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 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.
15.3 City's Additional Remedies. Upon any 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 at any 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.
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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 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
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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.
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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.
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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.
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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 in one of the following ways: (i) by personal service on the recipient; (ii)by
mailing the same by registered or certified mail, postage prepaid; (iii)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; or (iv) by email with an
additional copy of the notice, demand or request also be given by the method described in Section 19.1(i), (ii), or
(iii)herein. 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.
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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.
20.9 Merger. The Parties agree that the terms stated herein are the only consideration for each to
sign the Lease, and no other promise of any kind has been made by any person or entity to cause either to sign.
This Lease replaces any and all prior leases, agreements, or understandings between the parties as concerns the
Lease of the Premises.
IN WITNESS WHEREOF,the parties hereto have executed this lease as of the date first above written.
[Signatures on Following Pages]
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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