Item C27AGENDA ITEM SUMMARY
Meeting Date: May 21, 2014 Division: Public Works & Engineerin
Bulkltem: Yes X No Staff Contact Person: Kevin Wilson/305-797-1547
AGENDA ITEM WORDING: Approval of the Third Amendment to the Lease Agreement with the
Pigeon Key Preservation Foundation (Foundation).
ITEM BACKGROUND: The County previously approved the second amendment to the lease which
removed the language assigning responsibty for the vehicle access ramp to the Foundation. The
amendment also removed the language that made the required the foundation to maintain the leasehold
at its "sole expense". This reason for removing this latter language was to allow the Foundation to seek
funding for maintenance from a broader array of sources, such as the TDC. This third amendment
removes inconsistent language remaining in the lease that limited the sources of funding available for
such repairs.
PREVIOUS RELEVANT BOCC ACTION:
zmei7 asz t*
leaschold. Previously amended the lease to remove the language assigning responsibility for the
vehicle access ramp to the Foundation and requiring maintenance to be performed at the Foundations
sole expense.
CONTRACT/AGREEMENT CHANGES:
Deletj ..j linggWi e IQIV �j rejgired j �j I _ j I
I I 1161t I I V-16 WTH I I arvirldrM 1161WIB I WE I 6iWei-Epo 6r.] M) Eq Its I 'N
�lriill 114a., Vil! M�1 =�
TOTAL COST: TBD BUDGETED: Yes No XX
COST TO COUNTY:N/A SOURCE OF FUND:
I IRATJ Diet liall411111 17111i''[11111 FEWN Mwl
P�tL, -C (4),�
APPROVE --
D BY: County Atty OMB/Purlga�sing — Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
w.
A
Contract with: Pigeo Be FoundatiQn Contract #
Effective Date:
Expiration Date:
Contract Purpose/Description: Third Amendment to Leggj Ageernent rpMpvm.
�_S incon§ist
Immage regmijigg the Foundation to be s f
2k-ly responsiblNo
all costs and Menses f qLMair of the leasehold 12W=.y
Contract Manager Beth Leto 4560 Public Works/#I
I (Name)(Department/Stop #)
I for BOCC meeting on May 21, 2014
W-01:0.11Z
Deadline: May 6,2014
Total Dollar Value of Contract: $ TED Current Year Portion: $
Budgeted? YesEl GoE] Account Code:
Grant: $
County Match: $
2 Estimated Ongoing Costs: S -
ot—It included in doller value above
For:
Changes Date Out
Dgte In Needed Reviewer
Division Director j YesEl NoKr
Risk Management yesONOF]"
O.M.WPurefai-sing :2�Z-Jlf YesE]No® Y
L
County Attorney YesL1 N09 A, 6".r
Comments:
VC0137-07110:1 X
M
......... ......... ........ ..........
WHEREAS, on the 19" of October 1993, County and Lessee entered in to a 30 year lei
for the parcel of property known as "Pigeon Key"; and
WHEREAS, on the 16" of January 2013, County and Lessee executed
amendment deletine Lessee's obligation to wallitait a # rq"Jel . . . . . . .
WHEREAS, on December I Vh 2013 County and Lessee entered into a second
amendment transferring responsibility for maintenance of the vehicle ramp connecting Pigeox
Key to the old Seven Mile bridge from the Lessee to the County; and
WHEREAS, the second amendment also deleted the language in Article 2 of the lease
that stated that the Lessee was required to maintain the facilities "at its sole expense" in order to
broaden the funding sources Lessee could apply for and to allow Lessee to prepare for grant
fimding applications on behalf of the County; and
WHEREAS, Article 16 of the lease agreement has limiting language that is inconsistent
with the intent of the second amendment, now therefore;
IN CONSIDERATION of the premises and of the mutual covenants and agreements
herein contained, and other valuable considerations, the parties agree as follows:
Sf2QDQN L Article 16. jQINT )MIM. of the original agreement is amended as follows:
16, &jff yENnM.
Lessee an Lessor warrant and represent that by the execution of this Lease
Agreement it is not the intent of the parties that the use of the leasehold property by
..... . . . . . . -j
Lessee shall be responsible for seeking arid applying for funding sources to effect
the purposes of this Agreement therefore, nothing contained within the Agreement is to
be construed as a limitation on the Lessee"s ability to apply for funding for repairs and
maintenance. In addition, Lessor, as the owner of the improvements, shall also be
authorized to apply for grant fieming to effect the purposes of this Agreement. Lessor and
its authorized agents, contractors and employees shall have the right to enter upon the
leased premises when Lessor, at its discretion, undertakes a repear or unprovement.
MQUO—N2. This amendment shall be retroactive to April 1, 2014.
U,CjjQN---3, All other provisions of the October 19, 1993 original lease, the January 16, 201-3
lease amendment and the December 11, 2013 second lease amendment not inconsistent herewith,
shall remain in full force and eftect.
IN WITNESS WHEREOF each party hereto has caused this agreement to be executed in
duplicate by its duly authorized representative.
(SEAL)
ATTEST: AMY BEAVILIN, CLERK
By
Deputy Clerk
Date
(CORPORATE SEAL)
ATTEST:
By
witness
Date L�>
BOARD OF COUNTY CON[IGISSIONERS
OF MONROE COUNTY, FLORIDA
W1
Mayor Sylvia Murphy
PIGEON KEY PRESERVATION FOUNDATION
A Florida Not-ibr-Profit Corporation
BY - �Ze4�-
M to C I 10r�NLY
P
.0,- 'V tj RCAPj0
PED10 J', . RNEY
AS ISTANF.- Iva
i I %ty
Date, o -- - e: 71" i
Gi i
'111111i 1511ii IL
THIS AMENDMENT (hereafter Amendment) is made and entered into this I I th day
December, 2013 by and between Monroe County, a political subdivision of the State of Florid
whose address is Gato Building, 1100 Simonton Street, Key West, FL 33040 (hereinaft
"County", "Lessor" or "Owner"), and the Pigeon Key Preservation Foundation, A Florida No
For -Profit Corporation, P.O. Box 500130, Marathon Fl. 33050 (hereinafter "Lessee"). )I
WHEREAS, on the I 91h of October 1993 County and Lessee entered in to a 30 year lease
forte parcel of property known as "Pigeon Key"; and
WHEREAS, on the 16 1h of January 2013 County and Lessee executed a lease amendme
deleting Lessee's obligation to maintain property insurance due to its prohibitive cost; and i
WHEREAS, under the terms of the lease, Lessee is required to maintain the vehicle ramp
connecting Pigeon Key to the Old Seven Mile bridge; and
WHEREAS, the ramp requires refurbishment and repairs based on a lifecycle that
exceeds the terms of the basic lease; and,
ITAEREAS, encumbering the Lessee with the sole financial responsibility for the repaij
limits the sources of funding available for such repairs; now therefore;
mllxwnw-,�is�f �-- -
I a W Uld I I IMM 11 r. I I I We Owl I E4 11614 IN (ATV I to ro W U-IMU 03 Ef M V 10 Ell IRM I I r-A volt I it I MWO Im axim w7_2 tu I
SECTION 1. Article 2. MAINTENANCE OF PREMISES AND FACILITIES of the origin
agreement is amended as follows: i
2. MAINTNENANCE OF PREMISES AND FACILITIES.
Lessee has inspected the premises and agrees to accept possession of the premises
in "as is" condition.
expense.
Lessee shall maintain the facilities including the buildings, sewage system, boat
basin, picnic shelters, generator, fuel tank, and any appurtenances thereof and any
improvements made in a state of good repair and in a sanitary condition at all times.
Work such as stabilization repairs and painting will be deemed maintenance. Buildings
shall be maintained as Historical Buildings in conformance with applicable regulations.
c*iYm:i!it iwpe-sv1`116�i-4o cowniyift4 was�v 44,nj�564.114 Init�FetiY-.4't t* ffly
improvements thereon. Lessee acknowledges that Lessor shall have no responsibility for
the operation and maintenance of the leasehold except to provide such municipal services
as are available to and are provided to all property owners or occupants of property
within Monroe County, Florida, at the Lessees expense. The parties agree that neither the
Lessor nor the Lessee shall have any obligation to the other party to maintain the bridge
that currently connects the Island to Knight s Key. The Lessor will maintain the ramp
from the bridge to the Island If the bridge cannot be used for access to the Island the
Lessee may provide public access through other means, including the use of watercraft.
SECTION 2. All other provisions of the October 19, 1993 original lease and the January 16 1h
fflksmm-
MY HEAVILIN, CLERK
By 'AW
Dep99'ty'Clerk
By �(-
'L V
Mayor4lvia aurphy
ATTEST: PIGEON KEY PRESERVATION FOUNDATION
A Florida Not -for -Profit Corporation
By By
Witness
I=-
c_aca MG E OUN cr) AVC0 NEY
x.
ED S M
A SISTANT UNTY 61-F(PRNEY
LL- Date...
M
LLj
El
12 144 X810 N 478 Wti
I D1 I L13 1Z I Z I 1110 11111
TI-IIS AMENDMENT (hereafter Amendment) is made and entered into this 16th day of
January, 2013 by and between Monroe County, a political subdivision of the State of Florida,
whose address is Gato Building, 1100 Simonton Street, Key West, FL 33040 (hereinafter
"County", "Lessor" or "Owner"), and the Pigeon Key Preservation Foundation, A Florida Not -
For -Profit Corporation, P.O. Box 500130, Marathon Fl. 33050 (hereinafter 'Tessee7).
WHEREAS, on the 19'� of October 1993 County and Lessee entered in to a 30 year leasI
for the parcel of property known as "Pigeon Key"; and
I �
III III 1 11 iffiffiliffiffliffil � . 0 6 & , . I
WHEREAS, under the terms of the lease Lessee is required to maintain property
insurance on the premises to cover the perils of fire, windstorm and flood; and
WHEREAS, under the terms of the lease Lessee is also required to maintain
comprehensive General Liability, Vehicle Liability, and Workers Compensation; and
WHEREAS, as it relates to the Lessee's cost of complying with the insurance
requirements, the Wind, Flood, and Fire property insurance premiums have become cost -
prohibitive; and
WHEREAS, Lessee has requested that the County waive only the property insurance
requirements; and
WHEREAS, at the regularly scheduled December 12, 2012 County Commission meetinTA
the Board of County Commissioners discussed the request and unanimously approved th(;
request, now therefore;
SECTION I, Article 15 b) - related to fire, windstorm and flood coverage - is deleted in its
entirety.
ZECTION 2. All other provisions of the October 19, 1993 original lease not inconsistent
m
ATTEST: AMY DEAVILIN, CLERK
Deputy Clerk
Date 14, a.. 3
(CORPORATE SEAL)
ATTEST:
By
Date (V 7>.1 0. T—
ffow
orge Neugent
PIGEON KEY PRESERVATION FOUNDATION
A Florida Not -for -Profit Corporation
By
7,� rE A"ST Y
PE0,10
A83%siAmrin-u 'ATTORNEY
Date
31,
pj
cn
CA
CD
'LEASE AGREEMENT
Lease Agree en made this day of October, 1993, by
And between the Board of County Commissioners of Monroe County,
hereinafter "Lessor" and the Pigeon Key Preservation Foundation,
Inc., a Florida Not -For -Profit Corporation chartered under the
laws of the State of Florida, hereinafter called "Lessee:
RECITALS
1. Lessor owns a parcel of property known as "Pigeon Key"
(hereinafter the "premises") located southwest of Marathon under
the Old Seven Mile Bridge.
2. The ownership and maintenance of the premises by the
Lessor has created a financial burden upon the taxpayers of
Monroe County, Florida due to the high cost of maintenance and
repair required by the premises.
3. The buildings located upon the premises have greatly
deteriorated and require extensive and costly renovation and
repair.
4. It is in the best interest of the citizens of Monroe
County, Florida that a tenant be obtained by Lessor for the
premises who will make 'the required renovations and repairs upon
the Premises at tenant's expense.
5. on or about the 9th day of pja 1992, Lessor published
in several newspapers a request for proposals from persons
desiring to lease the premises, a copy of which is attached
hereto as Exhibit "All.
6. At public onroe County Commission meeting held the
a M
6th day of October, 1992, the Lessee was ranked first of the
groups responding to Lessor's request for proposals for the
purpose of negotiating a lease for the premises by the Monroe
County Commission.
7. Lessee is a Non -Profit Florida corporation formed to
protect and preserve the valuable heritage of Pigeon Key and for
the purpose of performing environmental research, historical and
educational work, historical restoration and renovation of Pigeon
Key' s improvements, and other educational and charitable
activities.
8. Lessor finds that the program proposed by Lessee
benefits all of Monroe County and its citizens.
9. Lessor finds that Lessee is a unique organization
bringing together many professionals from related fields for the
purpose of protecting, preserving and fully utilizing Pigeon Key
for public interest purposes. These professionals include but
are not limited to scientists, administrators, teachers,
historians and business persons.
10. Pigeon Key has been designated by the U.S. Department
of Interior a National Historical District.
11. As a result 'of this designation, renovation and
restoration of the improvements upon the premises must meet the
standards for historical renovation set forth in federal
regulations. Cost of these improvements, estimated to exceed one
million dollars, shall be paid by the Lessee under Lessee's
1034101%gkm-W
0
12. All costs Of maintenance and upkeep of the premises,
which had been costing Lessor approximately $60,000 per year,
shall be paid by the Lessee under Lessee's proposal.
13. Lessor finds that the proposal presented by Lessee is
the highest and best bid for leasehold of the premises and that
the capital improvements, maintenance and uses for the premises
proposed by Lessee constitute the greatest benefit to the
citizens of Monroe County of the proposals presented.
14. Lessor is unable to provide adequate funding for the
improvements and maintenance of the premises without creating a
to term tax burden on the citizens of Monroe County.
15. Lessor finds that entering into a lease with Lessee
that requires Lessee to restore and maintain the improvements on
the premises at the expense of Lessee is in the best interest of
Monroe County, Florida.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein and of good and valuable
considerations exchanged the parties agree as follows:
1. TENANCY AND TERM.
Lessor does lease to Lessee for a period of thirty
years from date of execution of this Lease the island known as
Pigeon Key located adjacent to the Old Seven Mile Bridge
immediately southwest of Marathon more particularly described as
Lot 1, Section 13 in the or East Quadrant of Township 66S,
Range 31E consisting of 5.31 acres more or less.
0
21 14AINTENANCE OF PREMISES AND FACILITIES.
Lessee has inspected the premises and agrees to accept
possession of the premises in "as is" condition.
Lessee shall maintain the grounds in a neat condition,
at all times, at Lessee's sole expense.
Lessee, at its sole expense, shall maintain the
facilities including the buildings, vehicular ramp, sewage
system, boat basin, picnic shelters, generator, fuel tank, and
any appurtenances thereof, and any improvements made, in a state
of good repair and in a sanitary condition at all times. Work
such as stabilization, repairs and painting will be deemed
maintenance. Buildings shall be maintained as Historical
Buildings in conformance with applicable regulations. Lessee
shall not commit, -nor suffer to be committed, waste to leasehold
property, or to any improvements thereon. Lessee acknowledges
that Lessor all have no responsibility for the operation and
maintenance of the leasehold, except to provide such municipal
services as are available to and are provided to all property
owners or occupants of property within Monroe County, Florida, at
the Lessee's expense. The parties agree that neither the Lessor
nor the Lessee all have any obligation to the other party to
maintain the bridge that currently connects the Island to
Knight's Key. The Lessee will maintain the ramp from the bridge
to the Island. if the bridge cannot be used for access to the
Island, the Lessee may provide public access through other means,
including the use of watercraft.
0
3. RENT.
Lessee shall pay to Lessor the sum of One Dollar per
year for a total of Thirty Dollars due and payable upon execution
of this Lease.
4. PERMITTED USES.
it is hereby agreed that the premises shall be used for
oceanographic and environmental research and for educational
purposes relating to but not limited to the preservation and
protection of the history and environment of the Florida Keys.
Community and educational benefits: Use all include
activities and events designed to attract visitors and residents
of Monroe County to Lessee sponsored or authorized community
events having a historical and./or educational format. Lessee
shall devote the property to uses pursuant to the terms of the
Master Plan, including the Educational Program Phases.
Research and programs undertaken by Lessee or associate
organizations all include but not be limited to those which
restore and maintain a healthy marine environment in and around
Monroe County., Education programs must be those is include
but are not limited to the history and environment of Monroe
County.
A) Public Access: The Lessor and Lessee agree that
Lessee must engage in a program of managed public access to the
island and the buildings and other improvements located thereon.
Lessee shall allow public access to the island for at least 8
hours a day for a minimum of 26 days per month, averaged yearly.
Use of the island for environmental education by students of the
0
Monroe County School System is encouraged but shall not by itself
count toward the public access requirements of the Lease. Public
use as an attraction of historical significance on the island, in
conjunction with use by school children at different or
overlapping periods of the same day shall count toward public
access requirements. Lessee can manage access through the use of
organized tours of the property lead by employees or volunteers
of the Lessee or its assigns. Lessee will provide a published
listing of the operating days., hours, and tours so that the
general public and local business community can plan for
visitation to the island. Lessee's obligation hereunder shall be
subject to its obtaining all required government approvals to
allow for public access and visitation and shall also be subject
to any force majeure, safety concern or other conditions outside
of the control of Lessee' that prohibit Lessee from allowing
public access to the premises. Maximum capacity to the island
and of each facility open to visitations be established by
the Fire Marshal. Lessee agrees to use all reasonable efforts to
apply for and diligently pursue obtaining the governmental
approvals necessary to permit public access to the island.
If the island is not open for public access at least
312 days in any calendar year for reasons other than the
exceptions identified above, Lessee shall provide the Lessor a
proposed schedule of the -days the island will be opened during
the next one to two calendar years. The schedule shall contain a
sufficient number of days that when added to the actual number of
days the island was open during the prior year and divided by 2
A
in the case of a one year schedule, or divided by 3 in the case
of a two year schedule, provides for an average of 312 days per
year that the island shall have been opened during that two or
three year period. Deviations from the schedule published to
correct such deficiencies shall require Lessor approval.
Compliance with the schedule shall be of the essence of
this Lease, and non-compliance shall be deemed a default
entitling the Lessor to terminate as provided in paragraph 2.
Notwithstanding the above, the Lessor agrees that
Lessee shall have no obligation to open the island to public
access during the first 180 days immediately following the
execution of this Lease by the Lessor and Lessee. This period of
time is necessary to identify and or to eliminate hazardous or
harmful conditions on the property, install interpretive and
warning signs, begin to stabilize the existing structures,
provide for potable water and adequate sewage treatment for the
initial use of the island.
The Lessee agrees to waive any claim for damages
against the Lessor that it may sustain should this Lease be
delayed or declared invalid by Court order for any reason. The
180 day period will be tolled in the event of the institution of
litigation which would impede the progress of the work.
B) Community and educational benefits: Use all include
activities and events designed to attract visitors and residents
of Monroe County to Lessee sponsored or authorized community
events having a historical and/or educational format. Lessee
shall devote the property to uses pursuant to the terms of the
Master Plan, including the Educational Program Phases.
7
C) Research and programs undertaken by Lessee or
associated organizations shall include but not be limited to
those which restore and maintain a healthy marine environment in
and around Monroe County. Education programs must be those which
deal with but are not limited to the history and environment of
Monroe County.
D) Lessee shall only be permitted to take marine samples
from within one quarter mile from the subject premises pursuant
to a resources collection plan approved by the Monroe County
Board of County commissioners.
5. INSPECTION FOR COMPLIANCE.
Lessor shall have at any time during the term of this
Lease, upon reasonable notice to Lessee, the right to enter upon
the premises to inspect Lessee's compliance with the terms and
conditions set forth herein.
In addition, Lessee all keep the premises in a neat
and clean condition as is reasonable given that the premises is
an off -shore island.
Lessor's right of inspection upon reasonable notice
includes the right to inspect for condition of the premises.
6. CAPITAL IMPROVEMENT PLAN.
Lessee shall restore the buildings located on the
island in a manner which shall comply with the Secretary of the
Interior's Standards for Rehabilitation and Guidelines for
Rehabilitation of Historic Buildings, which standards are imposed
on places listed on the National Register. The Lessee shall
comply with the Capital Improvements Section of the Lessee's
�-J
Master Plan, incorporated herein by reference, as it relates to
completing the rehabilitation of the buildings existing on the
Island within five years of the execution of the Lease. The
County commission may approve a revision of said Plan and subject
to the Lessee' obtaining all necessary permits, resolving
conflicts in applicable laws of force majeures. The Master Plan
is attached hereto as Exhibit B . A copy of the Capital
Improvements Section is attached as Exhibit C The Lessee
may, subject to the requirements of paragraph 7, substitute the
order of rehabilitative activities on a building per building
basis so long as it substantially completes the rehabilitation
within five years from the date of this Lease. The Lessee shall
fund, pay for, or obtain funding for all construction,
engineering, permitting, and maintenance of all improvements
unless the County commission grants an exception. The initial
maintenance and stabilization work identified on Exhibit D
attached hereto may be undertaken by Lessee without further
approval of the Lessor subject to obtaining required permits.
7. FUTURE IMPROVEMENTS.
No structures of any kind shall be constructed on the
leasehold property, or within the waters adjacent thereto,
without the prior co sent of the county commission. Approval of
the Master Five Year Plan does not constitute this consent. All
signs must conform to County Code requirements. Prior to
commencing construction of any permanent structure, additional
building or dock or dredging, the Lessee shall obtain written
approval from the County commission through a process commencing
2
with provision of a written request for such approval. Lessee
acknowledges that the consent shall be upon such terms and
conditions as the County Commission, in its sole discretion,
shall deem necessary and that consent may be withheld unless
Lessee agrees to all terms and conditions imposed by Lessor as a
condition precedent to the granting of the consent. However,
Lessee is authorized to make "minor improvements' to the
leasehold property without prior approval of the County
Commission as long a the minor improvements conform to the
purposes of this Lease. "Minor improvements" shall refer to any
work, installation, construction, grading or the like, on the
leasehold property, which does not require a permit from any
federal, state or local government agency. Upon termination of
the Lease, all improvements made shall become the property of the
Lessor.
8. CONSTRUCTION.
Lessee shall, prior to commencing rehabilitation or the
construction on any new improvement not deemed minor, obtain
conceptual approval by the County commission pursuant to
procedures specified by the County. Prior to commencing
construction, Lessee shall obtain all the necessary permits along
with a copy of the contractor's insurance and license. The
improvements shall be erected in a good and workmanlike manner in
substantial compliance with the plans and specifications as
approved by the Lessor. Upon completion of construction, Lessee
shall furnish Lessor with an affidavit from its licensed general
contractor, and an affidavit from the Lessee, certifying that all
M
-Eirms and corporations, which have supplied labor and materials
used directly or indirectly in the construction of the
improvements to leasehold property have been paid in full and
that there are no outstanding construction liens pertaining to
the leasehold property and improvements thereon.
9® COMPLIANCE WITH LAWS.
Lessee covenants that it will promptly comply with all
applicable laws, ordinances and regulations. Further, Lessee
shall use the leased premises only for the purposes authorized
herein.
1,0. PERMIT FEES, IMPACT FEES.LETC-
Lessee shall be responsible for obtaining, at its sole
expense, all permits and licenses required to construct or repair
improvements, and otherwise operate the leasehold premises. In
addition, Lessee shall be required to pay all permit fees,
utility fees and impact fees resulting from improvements made or
additional services to the leasehold, unless otherwise waived.
11. UTI.LITIES.
Lessee shall pay for all water, gas, diesel, heat,
septic, light, garbage service, power and telephone service and
other utilities of every kind furnished to the premises
throughout the term hereof, and all other costs and expenses of
every kind whatsoever in connection with the use, operation and
maintenance of the premises and all activities conducted thereon,
and Lessor all have no responsibility of any kind for any
thereof.
no
12. RIGHT OF INSPECTION.
Lessor, by and through its authorized agent., shall have
the right at all reasonable times during the term of this Lease
Agreement and any renewal thereof, to enter the leased premises
for the purpose of inspecting the premises for compliance with
this Agreement and improvements proposed, underway or completed,
and while doing so, the lessor shall not be liable to the Lessee
for any loss of occupation or quiet enjoyment of the premises
thereby occasioned.
13. pAYMENT OF TAXES.
Lessee shall promptly pay any and all taxes and special
improvement assessments as may be levied on the property during
the period of this Lease. Should the State of Florida determine
that this leasehold is subject to sales tax, Lessee shall be
solely responsible for the payment of said tax.
14. ADMISSION FEE.
Lessee all have the right to establish classes or
membership and charge for same. Lessee may charge a reasonable
admission fee, by local community standards in the Keys, to the
public for any programs which Lessee may conduct on the premises
provided the admission fees are charged for the purpose of
defraying the expenseslof providing the programs for the public,
defraying the financial burden of the scientific/research
programs is are conducted by Lessee and for maintenance,
restoration, improvement and construction of the island's
existing and proposed facilities, and any endowments for the
above. All public program fee rates shall be approved by the
M
County commission prior to implementation and reviewed annually
thereafter.
15. HOLD HARMLESS/INSURANCE.
Lessor and Lessee hereby agree that Lessor shall not be
liable for any loss, injury, death or damage to persons or
property which at any time may be suffered or sustained by any
person whatsoever who may be using, occupying, or visiting the
leasehold property, or who may be in, on or about the leasehold
property and any improvements constructed thereon by Lessee,
whether such loss, injury, death or damage shall be caused by, or
shall in any manner result from, or arise out of any act,
omission or negligence of Lessee or any other periods. Lessee
hereby covenants and agrees to indemnify Lessor and hold harmless
Lessor during the term of the Lease of any holding over thereof,
from all claims, liabilities, loss, injury, death or damage
whatsoever on account of, or arising out of the subject matter of
this Lease Agreement. Lessee further agrees to provide the
following insurance coverages:
A) A Comprehensive General Liability insurance
policy with the limits of at least TWO HUNDRED FIFTY
THOUSAND & 00/100 ($250,000-00) DOLLARS for each person
injured in an accident or occurrence and FIVE HUNDRED
THOUSAND & 00/100 ($500,000-00) DOLLARS for an
aggregate of persons injured as a result of one
accident or occurrence, and FIFTY THOUSAND ($50,000-00)
DOLLARS for property damage coverage. Said insurance
shall be placed with an insurance company acceptable to
M
Lessor. Lessor shall be named an additional insured
and certificate of insurance shall be furnished to the
Lessor, prior to the date of the signing of this Lease
Agreement., and each anniversary date of the insurance
policy. Said policy shall provide that the insurance
coverage shall not be cancelled or reduced by the
insurance carrier without the Lessor having been given
fifteen (15) days prior written notice thereof by such
carrier. From time to time, Lessor may require Lessee
to increase its public liability coverage if Lessor's
liability is increased as a matter of law.
b) Lessee shall keep all buildings on the leased
property insured for their full insurable value and a
policy insurance with extended coverage, fire,
windstorm and flood coverage, including a loss payable
clause in favor of Lessor, and lessee, as their
respective interest may appear, shall be included. Any
sums payable by virtue of a loss under such insurance
shall be applied first to the repair or reconstruction
of any building damages, unless the parties hereto
agree to another or different application of the
insurance proceeds aid. The original policy or other
satisfactory evidence thereof, shall be furnished to
the Lessor, prior to the execution of this Lease
Agreement and on each anniversary date of the insurance
policy. Said policy shall provide that the insurance
coverage shall not be cancelled or reduced by the
W
insurance carrier without Lessor having been given
fifteen (15) days prior written notice thereof by such
carrier.
C) A vehicle liability insurance policy with
limits of at least ONE HUNDRED THOUSAND ($100,000-00)
DOLLARS per person, THREE HUNDRED THOUSAND
($300,000.00) DOLLARS per occurrence for bodily injury
and ONE HUNDRED THOUSAND ($100,000.00) DOLLARS for
property damage. Said insurance shall be placed with
an insurance company acceptable to the Lessor, and
shall include hired and non -owned coverage. Lessor
shall be named as an additional insured and a
certificate of insurance shall be furnished to the
Lessor prior to the date of the signing of the Lease
Agreement and each anniversary date of the insurance
policy.
D) workers compensation insurance in compliance
with Section 440, of the Florida Statutes, including
OKE HUNDRED THOUSAND ($100,000.00) DOLLARS in
employer's liability.
16. JOINT VENTURE.
Lessee and Lessor warrant and represent that by
the
execution of this Lease Agreement it is not the intent of
the
parties that the use of the leasehold property, by Lessee or
the
construction of improvements thereon by Lessee, be construed
or
deemed to represent a joint venture or undertaking between
the
Lessor and Lessee. Lessee shall, at all times, be solely
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responsible for the operation and maintenance of the leasehold
.
property, the improvements constructed thereon, and the conduct
of all activities and services, provided by Lessee as part of its
operation. Additionally, Lessee shall be solely responsible for
all costs and expenses incurred with reference to its use of the
leasehold property and construction of any improvements thereon.
17. RENTAL AMOUNT.
The faithful performance by Lessee of all of the terms,
conditions and covenants contained herein shall be deemed to be
substantial valuable consideration for the grant of this
leasehold to LESSEE. Additionally, Lessee shall pay the sum of
ONE ($1.00) DOLLAR, per year, to the Lessee as consideration for
said Lease Term.
18, RIGHT OF FIRST REFUSAL.
If, during the term of this Lease or any extensions
thereof, Lessor elects to enter into a lease of the premises or
receives a bona fide offer, acceptable to the Lessor, to lease
the premises after the termination of this Lease, the Lessor
shall notify the Lessee of the terms of such offer (including the
consideration) and the name of the offerer, if any, (the
"Notice") before accepting the same, and the Lessee shall have
thirty (30) days from receipt of said Notice ("Exercise Period")
to lease the premises on the same terms of such on fide offer
with such lease commencing after the termination fo this Lease.
If Lessee fails to exercise its right within said Exercise
Period, the County may lease the premises to such third person in
accordance with the terms and conditions of the offer set forth
ON.
in the Notice. If such lease is not executed within one hundred
eighty (180) days from the expiration fo the Exercise Period, and
this Lease is still in effect, the rights granted to the Lessee
in this paragraph shall continue in full force and effect as to
any future proposals or offers for lease that occur during the
term of this Lease.
If, during the term of this Lease, Lessor elects to
sell the premises, or receives a bona fide offer, acceptable to
the Lessor, for the purchase of the premises, the Lessor shall
notify the Lessee of the terms of such offer (including the
consideration) and the name of the offerer, if any, (the
"Notice") before accepting same, and the Lessee shall have thirty
(30) days from receipt of said Notice ("Exercise Period") to
purchase the premises on the same terms of such on fide offer.
If Lessee fails to exercise its right within said Exercise
Period, the Lessor may sell the premises to such it person in
accordance with the terms and conditions of the offer set forth
in the Notice. IF such sale is not consummated within one
hundred eighty (180) days from the expiration of the Exercise
Period, the rights granted to the Lessee in this paragraph shall
continue in full force and effect for the remainder of the to
of this Lease. If the Lessor shall sell the premises after a
failure of the Lessee to exercise its rights hereunder, such sale
shall be subject to the provisions of this Lease.
19. PLEDGE OR ASSIGNMENT OF LEASE.
Lessee shall not pledge or assign this Lease Agreement,
or sublet any part of the leased property, and Lessee all have
a
no right, to mortgage or encumber any part of the leasehold, or
improvements located thereon without the approval or the County
commission. The staff or scientists of Mote Marine Laboratory or
similar marine research institute shall be allowed to use a
portion of the island subject to the provisions of paragraph 3.
Lessee shall not allow the use of the leasehold by any other
group or organization, in excess of two weeks per group or
organization, without the prior approval of the County
Administrator. In addition to Lessee keeping the leasehold and
improvement thereon free and clear of all liens, claims or lien
and encumbrances, Lessee does hereby indemnify and hold harmless
the Lessor of and from, all or any lien, claim of lien or
encumbrance, whether the validity of the same shall be in
question or not, and said indemnifications shall include Lessee
paying for all reasonable court costs, attorney's fees and
expenses as may be incurred by Lessor in protecting the leasehol-d
against and from any lien, claim of lien or encumbrance. The
indemnification shall include court costs and attorney's fees at
the trial court level, as well as attorney's fees and costs
associated with appellate proceedings, if any.
20. PROGRESS REPORT.
Lessee shall be required to prepare annual written and
oral reports during the first ten years of the Agreement and
annual reports thereafter to the County commission regarding the
progress being made in fulfillment of Lessee's financial
condition including fund raising efforts/successes, and costs
incurred to comply with the of and objectives specified in
FU
this Agreement and the Master Plan. Further, the report shall
contain a project schedule tracking each project identified in
the Master Plan and noting the phase of development/improvement
for each. Also, specific accomplishments should be included in
the annual report. The first report shall be due one year
following the execution date of the Agreement.
21. TERMINATION.
A) The Lessee acknowledges that the conditions,
covenants and requirements on its part to be kept, as stated
herein, are material inducements to the Lessor entering into this
Lease Agreement. Should the Lessee fail to perform any of the
conditions, covenants and requirements on its part to be kept,
then this Lease Agreement may be terminated at the option of the
Lessor. In such event, the Lessor may take possession of
leasehold property and improvements, and shall have the right to
remove all persons therefrom. The failure of Lessor to take any
action with respect to any breach of any term, covenant or
condition contained herein, or any instance of default, all not
be deemed to be a waiver of any subsequent breach, of the same or
other condition, and the subsequent acceptance of rent or further
performance hereunder by Lessee should not be deemed to be a
waiver of any default or breach by Lessee.
B) If the Lessee at any time during the term of this Lease
should lose its tax-exempt status for Federal Income Tax purposes
for more than one (1) taxable year, the Lessor may, at its
option-, terminate this Lease by giving Lessee written notice of
such termination and specifying the date of termination. The
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Lessee shall, at Lessor's request, furnish evidence of the
continuation of such tax-exempt status and a failure to furnish
such evidence in acceptable form to the Lessor after request
shall constitute a default hereunder.
) In the event that Lessee ceases its corporate
existence, files for bankruptcy, or becomes financially
insolvent, then the Lessor may, at its option, terminate this
e event that Lessee uses the premises in any way
not contemplated by this Lease, the Lessor may terminate this
Agreementof g the procedures in paragraph 22, below.
the Lessor's option, all new structures constructed by the
Lessee located on the leasehold oe Lessee,
at
its sal.e expense, e leasehold y shall be returned to
its stateat the beginning.
22. NOTICEOF F
In the event of a defaulto r c of
any
covenant or through any use of premises whichCounty
Commission finds to be a use not contemplated by the Lease,
Lessor shall give Lessee written notice of the default,
specifying those acts or things which mustoccur in order to cur
said default, and Lessee shall have such period of time a Lessor
shall designate, and not less than 30 days, in its written notice
of default, within which to cure the default. Should the default
remain., upon expiration of the time granted to cure the same,
Lessor shall provide written notice to Lessee of the termination
M1
of this Lease Agreement and such termination shall be effective
immediately.
23. NORMAL EXPIRATION OF LEASEHOLD TERM.
Lessee shall voluntarily quit its use of the leasehold
property and shall return the leasehold property to Lessor on the
date of the normal expiration of this Lease Agreement in a
satisfactory condition as determined by the Lessor. At the
Lessor's option, at the time of expiration of the leasehold term,
all new structures constructed by the Lessee to the leasehold,
shall be removed by Lessee at Lessee's sole expense. Further,
Lessor shall not be required to provided notice to Lessee to quit
the leasehold property upon the normal expiration of this Lease
Agreement. Lessor may, in its sole discretion, allow Lessee to
of over upon expiration of this Lease, on such to and
conditions as Lessor shall deem warranted. In the event that
Lessee shall of over, Lessor shall have the exclusive right to
determine the terms and conditions of the same, and shall notify
Lessee of those conditions in writing.
24. QUITE ENJOYMENT.
Lessor covenants with Lessee, that upon paying the rent
and performing the covenants herein set forth, Lessee shall have
quiet enjoyment of the -premises during the term of this Lease
without interruption by the Lessor or any or any premises in fee
simple, free and clear of any and all liens, encumbrances and
exceptions and that it has full power, right and authority to
lease the premises pursuant to this Lease. The Lessor agrees
with the Lessee to undertake the actions set forth under the
M"
heading "Monroe County Activities" on page 5 of the Lessee's
Master plan designated Exhibit B. The parties acknowledge that
the Monroe County Activities as aforesaid cannot be guaranteed;
however, the Lessee agrees that it will exercise its best effort
to achieve such objectives.
25. ABANDONMENT OR SuspENSION OF USE.
Should Lessee voluntarily abandon or suspend its
activities on the leasehold property, and should that suspension
or abandonment continue for a period of Sixty (60) days, Lessor
may, at it's option, terminate this Lease Agreement and Lessee
shall be required, hereby, to voluntarily quit the leasehold
property. In this event, Lessor may require that Lessee, at its
sole expense, remove all new structures constructed by Lessee
from the leasehold and return the property to Lessor in as good a
condition as existed at the commencement of this Lease.
26. ZONING IN MASTER PLAN.
The parties recognize that the Lessee is entering into
this Lease with the intent to use the premises for those
activities enumerated herein, and that the Lessee may need to
obtain a change in the future land use classification of the
premises under the Monroe County Year 2010 Comprehensive Plan and
a change in the zoning designation applicable to the premises to
allow for such uses. This Lease is made expressly conditioned
upon the Lessee being able to obtain the necessary changes, if
any, to the future land use classification and the zoning
designation for the premises that will allow for public access to
the premises for the uses specified herein, including marine and
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oceanographic research, for environmental education, the use of
some of the improvements as dormitories for residential use by
groups each staying on a short term basis, and for use of at
least one of the improvements as a residence for a caretaker,
security guard or supervisory personnel. If, after a reasonable
attempt Lessee is unable to obtain the necessary future land use
classification and/or zoning designation to permit the above use,
Lessee will have the right upon sixty (60) days for written
notice to the Lessor to terminate this Lease. If Lessee
exercises this right of termination, it shall, on the date of
termination of the Lease, reLurn the Premises to the Lessor in
the same condition as on the Commencement Date, ordinary wear and
tear excepted and except for any improvements, stabilization or
restoration that may have been completed prior to the
termination.
27. CONTROL OF USE AND PROTECTION OF HISTORIC STRUCTURES -
The Lessee agrees that it will, within six (6) months,
present to the Board of County commissioners a plan which will
demonstrate the continued control of the use of the facilities
and the protection of the historic structures, which plan must be
approved by the Board of County Commissioners.
28. BOARD OF DIRECTORS RESIDENCY RE2UIREMENTS-
During the term of this Lease, the Lessee agrees that a
majority of its Board of Directors shall be residents of Monroe
County, Florida.
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2_19. SEVERABILITY.
If any provision of this Lease is determined to be
illegal or unenforceable, such determination shall not affect the
validity or effect of the remaining provision of this Lease, all
of which shall continue in effect as if such invalid provision
had not been included in this Lease.
30. ATTORNEY'S FEES.
In the event it is necessary for Lessor to bring any
action against Lessee for the enforcement of any of the
provisions of this Lease Agreement, Lessee shall pay unto Lessor
all costs incurred by Lessor to enforce its rights hereunder, to
include costs of any nature whatsoever associated with collecting
sums due hereunder or incurred in obtaining compliance by Lessee
with any provisions hereof, and Lessee obligation shall include a
reasonable attorney's fee to any attorney hired by Lessor, the
attorney's out-of-pocket expenses, and the same shall include
attorney's fees and costs for appellate proceedings and
declaratory relief, if any.
31. BINDING EFFECT.
This Lease Agreement shall be binding upon the
respective successors of the parties hereto.
32. ENTIRE AGREEMENT.
This Agreement constitutes the entire Agreement of the
parties and shall be binding on the parties hereto. Any previous
Lease Agreement entered into by the parties hereto shall be null
and void.
All remedies hereinbefore and hereafter conferred on
Lessor all be deemed cumulative and no one exclusive of the
other, or of any other remedy conferred by law.
34. NOTICES.
Any notice given Lessee or Lessor pertaining to the
terms and conditions of this Lease, unless changed in the future
shall be addressed.
COUNTY ADMINISTRATOR PIGEON KEY PRESERVATION
Public Service Building FOUNDATION, INC.
5100 College Road P.O. Box 500130
Key West, FL 33040 Marathon, FL 33050
35. TERMS OF EFFECTIVENESS.
This Lease shall to effect only in the event that the
Circuit Court in and for Monroe County lifts the stay of its
filed judgment as provided in Rule 9.310(2) of the Florida Rules
of Appellate Procedure in connection with that certain case
styled Pigeon Key Historic Park, I . v. Monroe County and being
Case No. 93-10244-CA-18; or in the event that the 3rd District
Court of Appeal affirms the it judgment in the said case.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed as of the day and year first above
written.
a.,
Danny L. Kolhage, Clerk BOARD OF COUNTY COMMISSIONERS
OF MONR1i•COUNTY J, FLORIDA
By�� By_,
D,
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PIGEON KEY PRESERVATION
FOUNDATION, IN
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