MOTION TO AUTHORIZE County Administrator to approve and execute a Revised Lease Agreement (the "Revised Lease Agreement") between Broward County ("County") and Young At Art of Broward, Inc. ("YAA"), provided the Revised Lease Agreement is approved as to legal sufficiency by the Office of the County Attorney and that it includes all of the key terms listed below. (Mayor Furr)
(Per the Tuesday Morning Memorandum, The term sheet attached to the original item specifies that Young at Art has the unilateral right to renew the term for two (2) five (5) year extensions. They have agreed that such terms will be modified to reflect the extensions will be by mutual consent.)
ACTION: (T-12:15 PM) Approved. Following Board discussion and public speaker comments, the Board approved this item with an initial ten (10) year term lease agreement with potentially four (4) five (5) year renewals by mutual agreement of the parties. (Refer to minutes for full discussion.) (See the Yellow-Sheeted Additional Material, dated Tuesday, June 12, 2018, submitted at the request of the County Administration and Commissioner Sharief.)
VOTE: 5-1. Commissioner Sharief voted no. Commissioner Ryan was not present during the vote. Commissioner Holness and LaMarca were not present.
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The Young At Art Children's Museum/Broward County Library is a 56,000 square-foot joint-use facility (the "Premises") in Davie, Florida. The Premises includes the YAA Museum, a Broward County Library, and a common area used by both YAA and the County.
The parties have entered into several agreements in connection with YAA’s occupancy of its portion of the Premises. The current agreement is dated February 17, 2014 (the "Current Agreement"). The Revised Lease Agreement contemplated by this agenda item has been negotiated by the parties over many months, and would replace the Current Agreement. Entry into the Revised Lease Agreement would also result in resolution of certain litigation initially filed by YAA against the County in 2016 (an additional lawsuit was later filed by certain principals of YAA). The litigation has been stayed while the parties have attempted to negotiate a mutually acceptable amended lease.
County staff and YAA, in conjunction with the Office of the County Attorney, have negotiated the following proposed key terms to be included in the Revised Lease Agreement:
- Uses. YAA shall use and occupy the YAA Museum as a family and children's art museum/facility (with YAA ensuring that all exhibits on display are appropriate for children of all ages), a preschool, a children's camp, and for events (i.e., planned and organized occasions consisting of one or more of the following: holiday parties, company events, productions, facility rentals, birthday parties, weddings, bar/bat mitzvahs, quinces, charitable and other fundraising events, educational functions, or art festivals). YAA may sublease no more than 20% of the YAA Museum for the operation of a shop/snack counter, or the like, inclusive of any seating area designated for eating by YAA's employees, visitors, guests, or volunteers, and subject to the County Administrator's prior written consent.
- No Live Human Nudity. The Revised Lease Agreement includes a complete prohibition on live human nudity of any kind, at any time, for any reason anywhere on the Premises. To the extent live human nudity exists anywhere on the Premises, the Revised Lease Agreement would automatically terminate with no required notice to YAA or action by the County.
- Exhibits with Non-Live Human Nudity. If an exhibit includes any display of non-live human nudity, such non-live human nudity must be incidental to the exhibit, of the same character as, and cohesive with, the remainder of the exhibit, and under no circumstances may such non-live human nudity be a substantial or dominant component of the exhibit. To the extent an exhibit includes any non-live human nudity, YAA must ensure that clear and conspicuous signage is posted at every possible entry point to the exhibit stating that content that may not be suitable for children of all ages is on display.
- Service/Consumption of Alcohol. If an event includes the offering, service, or consumption of alcohol at the same time any portion of the YAA Museum is open to the public, YAA must ensure that: (1) there is clear signage posted at each possible entry point to the event disclosing that alcohol is being served, offered, or consumed; (2) any individual at the event who wants to drink alcohol has shown proper identification and is given a wristband so there is no confusion as to who may lawfully be served alcohol; (3) if a YAA employee or volunteer serves or sells alcohol at an event on YAA's behalf, that employee or volunteer is at least 25 years old and is properly trained on techniques to cease serving alcohol to a person who has had too much to drink; and (4) if YAA contracts with a third-party vendor to sell or serve alcohol, the contract contains provisions that transfer the risk to the third-party vendor, that contract contains provisions that ensure that the third-party vendor has liquor liability insurance, and that the County is named as an additional insured on the policy. In addition, YAA must independently carry liquor liability insurance, naming the County as an additional insured.
- Term. The initial term is for ten years from the execution date. Thereafter, YAA has the unilateral right to renew the Revised Lease Agreement for one five-year term ("First Renewal Term") by providing written notice during a specified time, provided that YAA has not been notified by the County Contract Administrator, acting in good faith, more than three times during the initial term that YAA has breached the sections of the Revised Lease Agreement relating to presentation of non-live human nudity (the presentation of live human nudity automatically terminates the Revised Lease Agreement) or the service/consumption of alcohol. To have a second unilateral right to renew for another five-year term (the "Second Renewal Term") after the First Renewal Term, YAA must not have been notified by the County Contract Administrator, acting in good faith, more than three times during the First Renewal Term that YAA has breached the same sections of the Revised Lease Agreement. The Agreement may be renewed beyond the Second Renewal Term for up to two additional five-year terms by mutual written agreement of YAA and the County.
- Rent. YAA shall pay the County an initial rental amount of $300,000 per year, payable in advance in equal monthly installments of $25,000 on or before the first of each month. The annual rent will be increased by 3% of the then-applicable rent starting one year after the execution of the Revised Lease Agreement, and each year thereafter. If YAA fails to pay any monthly rent on or before the fifth day of each month, the past due rental payment shall be increased by $1,250.
- Termination. Besides automatic termination if live human nudity exists on the Premises, the County may seek termination if YAA breaches the Revised Lease Agreement in any of the following ways (YAA would not have the right to cure these breaches): (1) YAA violates any portion of the provision on non-live human nudity; (2) YAA fails more than three times in any rolling 24-month period to timely pay the County the monthly rent; or (3) YAA fails to perform required background screening on any of its officers, employees, agents, independent contractors, or volunteers working or providing services of any kind on the Premises. If YAA breaches the Revised Lease Agreement in any other way, YAA will have the ability to cure the breach prior to the County seeking termination.
- Naming Rights. YAA may pursue naming rights, including naming the County building in its entirety. No naming rights in connection with all or any portion of the Premises or the County building may be awarded by YAA without the prior written consent of the Board of County Commissioners (the "Board"), which consent may be withheld in the Board's sole discretion. YAA may also pursue naming rights to temporarily name rooms or exhibits within the YAA Museum, provided YAA obtains the County Administrator's or designee's written consent before award of the naming rights. YAA shall split any gross proceeds from naming rights with the County, 75% to the County and 25% to YAA unless, on or before the tenth day after funds clear YAA's bank account, YAA pays the County 50% of the gross proceeds, in which event YAA shall retain the remaining 50% of the gross proceeds.
- Operating Expenses. YAA shall pay its proportionate share (75% based on square footage) of all operating expenses for the Premises during the term, except for janitorial and cleaning services for the YAA Museum, which shall be furnished by YAA.
- Settlement of Lawsuits. The parties must jointly file a voluntary dismissal of all claims with prejudice in the lawsuit that YAA brought against the County in October 2016. YAA must also ensure that Mindy Shrago and Zachary Spechler file a voluntary dismissal of their lawsuit with prejudice. The parties shall also mutually release each other from any and all claims relating to the Current Agreement.
This item allows the County Administrator, in conjunction with the Office of the County Attorney, to negotiate any additional necessary language (not contrary to the above) to adequately protect the County's interests. In addition, this item authorizes the County Administrator to execute the Revised Lease Agreement, provided the above key terms are included in the Revised Lease Agreement and the Office of the County Attorney has approved the Revised Lease Agreement for legal sufficiency.
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