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Item M9
BOARD OF COUNTY COMMISSIONERS County of Monroe A(I Mayor George Neugent, District 2 TheOI1da Keys 4� �� m Mayor Pro Tem David Rice, District 4 l Danny L. Kolhage, District I „ Y „; ° W Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting August 16, 2017 Agenda Item Number: M.9 Agenda Item Summary #3271 BULK ITEM: Yes DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Patricia Eables (305) 292-3477 N/A AGENDA ITEM WORDING: Approval of new Right -of -Way Lease Agreement with Key Marina Development, LLC, and Consent to Assignment of Lease to Florida Keys Quality Foods, Inc., for an historic encroachment upon the Second Avenue public right-of-way in Key Largo, which will operate to terminate all prior leases. ITEM BACKGROUND: Encroachments consisting of a concrete building and a frame building have existed on the County ROW on Second Avenue, Mandalay Subdivision, in Key Largo since 1944 and the early 1960's respectively. In 1996, BOCC rejected the adjoining landowner's offer to purchase the ROW area, but rather entered into a 20 year Lease on 11/12/1997 with Canalis Holding Corp. of the area of the encroachments. The adjacent property subsequently changed hands numerous times as noted below in previous BOCC action. On 8/3/2010, a Certificate of Title was issued to Morgan Ocean Sunrise, LLC, as a result of a foreclosure action. On 07/20/2011, BOCC approved an Acknowledgement of Transfer of Title and Consent of Landlord from Ocean Sunrise to Morgan Ocean, and an Assignment of the 1997 Lease from Morgan Ocean to Florida Keys Quality Food, Inc., tenant in the restaurant, with no other changes to the original Lease terms. On 09/21/2011, the BOCC approved an Amendment to the 1997 Lease when it was discovered during renovations of the restaurant that the encroachments actually extended further into the right- of-way beyond the original 10 foot strip leased in 1997. The amendment increased the width of the leased parcel to approximately 21 feet. On 01/18/2017, the BOCC approved a new ROW Lease with Key Marina Development, LLC, as the Lessee, and Florida Keys Quality Foods, Inc., as the Sub -Lessee. The new Lease included a new survey and legal description of the actual leased parcel. The January 2017 Lease presented to the BOCC did not include the rental term and mistakenly had the wrong monthly rental amount, among other things. The omissions were discovered though prior to execution of the new Lease by the Mayor. The new ROW Lease and Consent to Assignment before the BOCC now corrects the leased area, modifies the rental term to coincide with the mortgage on the property, coincides with the rental term of the current Lease between Key Mariana and Florida Keys and makes the County Lease term retroactive to April 11, 2017, and increases the rental amount to $50 per month rather than $50 per year as noted in the January 2017 Lease. The rental term is for an initial seven year term with 3 additional five-year options. The Lessee has agreed to pay the full rental amount due for the entire initial seven year term in advance and will forego any claims to the advance rental payment should the Lease be terminated early. The first term will expire on April 10, 2024. If all renewal options are exercised, the Lease will expire on April 10, 2039. The rental due for any renewal period must also be paid in advance at the inception of the new rental term. The new ROW Lease also terminates the 11/12/1997 Lease which is set to expire on November 30, 2017, and rescinds the BOCC approval on 01/18/2017 of the ROW Lease which was never executed by the Mayor. PREVIOUS RELEVANT BOCC ACTION: 01/18/2017 BOCC approved a new Right -of -Way Lease with Lessee, Key Marina Development, LLC, as successor in interest to Morgan Ocean Sunrise, LLC, and Sub -Lessee, Florida Keys Quality Foods, Inc., that included a new survey & legal description. 09/21/2011 BOCC — Amendment to Lease reflected increased square footage of the encroaching area. 07/20/2011 BOCC approved Acknowledgment of Transfer of Title from Ocean Sunrise to Morgan Ocean Sunrise, LLC, and Consent of Landlord plus an Assignment of Lease from Morgan Ocean to Florida Keys Quality Foods, Inc. 11/14, 2007 BOCC Resolution 493-2007 — Development Agreement with Ocean Sunrise 08/18/2004 BOCC Consent of Landlord to Assignment from Earthmark Companies, LLC to Ocean Sunrise Associates, LLC (Assignment/Acceptance of Lease dated 11/29/2006 from Earthmark Companies, LLC to Ocean Sunrise Associates, LLC — OR 2256/1135, Monroe County Official Records). 02/18/2004 Consent of Landlord to Assignment/Acceptance of Lease from Canalis Holding Corp. to Earthmark Companies, LLC. 11/12/1997 20-year Lease Agreement with Canalis Holding Corp. — 10 ft x 125 ft County -owned ROW in Mandalay Subdivision, Key Largo. 11/12/1996 BOCC Public Hearing — Resolution No. 469-1996 (Rejected sale of 10 foot portion of Right -of -Way, but authorized a lease of the ROW with the encroachments. CONTRACT/AGREEMENT CHANGES: New Right -of -Way Lease STAFF RECOMMENDATION: Approval as noted. DOCUMENTATION: Right -of -Way Lease (partially executed & legal stamped for 8-16-17) Certificates of Insurance (Key Marina & FL Keys Quality Foods) Mandalay Gound Lease 4.18.2017 (Key Marina & FL Keys Quality Foods) Right -of -Way Lease (1-18-17 agenda item) Original Mandalay Lease 11-12-1997 with Canalis Holding Corp. FINANCIAL IMPACT: Effective Date: Retroactive to April 11, 2017 Expiration Date: If initial and all renewal lease terms are exercised, the lease will expire April 10, 2039 (total of 22 years). Total Dollar Value of Contract: $13,200 (see additional details) Total Cost to County: N/A Current Year Portion: Budgeted: N/A Source of Funds: N/A CPI: None. Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Yes If yes, amount: $50 per month (see additional details) Grant: N/A County Match: N/A Insurance Required: Yes Additional Details: Lessee will pay $50 per month for a total of $600 annually. Lessee has agreed to pay in advance for each lease term as follows: 1st term: 7 yrs. = $4,200 with (3) optional consecutive 5 yr. terms @ $3,000 per 5 yr. renewal term (if exercised). If all lease terms are exercised totaling 22 years, the total rental amount received by the County will be $13,200. h]IkTA1N17.1•6 Patricia Eables Completed 08/01/2017 4:47 PM Bob Shillinger Completed 08/01/2017 4:59 PM Budget and Finance Completed 08/01/2017 5:01 PM Maria Slavik Completed 08/01/2017 5:03 PM Kathy Peters Completed 08/01/2017 6:42 PM Board of County Commissioners Pending 08/16/2017 9:00 AM RIGHT-OF-WAY LEASE AGREEMENT AND CONSENT TO ASSIGNMENT OF LEASE THIS RIGHT-OF-WAY LEASE AGREEMENT ("LEASE"), made and entered into by the parties on this 16th day of August, 2017, by and between MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, ("LESSOR") and KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company, whose principal address is 52 Riley Road, Unit 155, Celebration, Florida 34747 ("LESSEE") and FLORIDA KEYS QUALITY FOODS, INC., a Florida corporation, whose principal address is 125 Milano Drive, Islamorada, Florida 33036, ("SUB- LESSEE"). WITNESSETH: WHEREAS, the County owns the public right-of-way along Second Avenue in Key Largo, Monroe County, Florida; and WHEREAS, there exists an historic encroachment upon the Second Avenue public right- of-way, of a concrete building and a frame building, existing since 1944 and the early I960's respectively; and WHEREAS, on November 12, 1997, the Monroe County Board of County Commissioners ("BOCC") entered into a Lease Agreement with Canalis Holding Corporation ("Canalis") for ten (10) feet of county right-of-way on Second Avenue, Key Largo, Florida, for a term of ten (10) years from December 1, 1997, until November 30, 2017 ("Original Lease"); and WHEREAS, on February 18, 2004, the Original Lease was assigned from Canalis to Earthmark Companies, LLC ("Earthmark"), which assignment was approved as required by paragraph 7 of the Original Lease by the BOCC; and WHEREAS, on August 18, 2004, the BOCC approved the Lease assignment from Earthmark to Ocean Sunrise Associates, LLC ("Ocean Sunrise"); and WHEREAS, on July 20, 2011, the BOCC acknowledged the transfer of title through a foreclosure action from Ocean Sunrise to Morgan Ocean Sunrise, LLC ("Morgan Ocean Sunrise"), and approved the assignment of the Lease to Morgan Ocean Sunrise on the same date; and WHEREAS, on July 20, 2011, the BOCC acknowledged and approved the Assignment of 1 Lease ("Assignment of Lease") from Morgan Ocean Sunrise to Florida Keys Quality Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive, Islamorada, Florida 33036 ("Quality Foods"), a tenant of the contiguous property and leased right-of-way upon which the existing historical encroachment is located; and WHEREAS, Morgan Ocean Sunrise was successor in interest to the rights and obligations set forth in the Development Agreement between Ocean Sunrise and the BOCC, which was approved by Resolution 493-2007 on November 14, 2007 ("Development Agreement"), which included the use of the leased property and which was executed subsequent to the Lease, thus allowing some modifications in the use of the property under the Original Lease; and WHEREAS, the survey and site plan provided at the time of the Development Agreement approval showed encroachment of buildings or structures beyond the original description of the leased Premises as well as allowing parking, wheel stops, an impervious handicapped parking space, and landscaping on the County right-of-way; and WHEREAS, on September 21, 2011, the BOCC entered into an Amendment to Lease with Morgan Ocean Sunrise reflecting the above changes, among other revisions, to the Original Lease; and WHEREAS, the contiguous property is currently owned by Key Marina Development, LLC, a Florida limited liability company, whose principal address is 52 Riley Road, Unit 155, Celebration, Florida 34747, as acquired through a Special Warranty Deed dated October 21, 2013, and recorded in Official Records Book 2655, Page 1209 in the Office of the Monroe County Clerk of the Court ("Key Marina"); and WHEREAS, Key Marina is the current successor in interest to the rights and obligations set forth in the Development Agreement and as outlined in the Key Marina Development, LLC Major Conditional Use at Mandalay Proposed Site PIan ("Site Plan"), attached hereto and made a part hereof ("Exhibit A"), which was approved by the Monroe County Planning Commission on January 27, 2017, as part of its Resolution No. P34-16; and WHEREAS, Quality Foods is the current Lessee and Tenant of the leased property under the Assignment of Lease with said lease term to expire on November 30, 2017; and WHEREAS, on January 18, 2017, the BOCC approved a new Right -of -Way Lease Agreement with Key Marina, as Lessor, and Quality Foods, as Sub -Lessee, for an historic encroachment upon the Second Avenue public right-4-way in Key Largo, but the term of the Lease was inadvertently omitted, and therefore, never executed by the Mayor on behalf of the BOCC; and 9 WHEREAS, Key Marina and Quality Foods now desire to terminate the Original Lease and the Assignment of Lease, and terminate and rescind the BOCC approval on January 18, 2017, of the new Right -of -Way Lease Agreement, which was never fully executed; and WHEREAS, Key Marina has provided a new Survey and Legal Description, dated December 7, 2016, incorporating the Site Plan revisions for the Mandalay property, a copy of which is attached hereto and made a part hereof ("Exhibit B"); and WHEREAS, Key Marina is the legal title owner of the contiguous property and desires to become the LESSEE; and WHEREAS, Key Marina and Quality Foods entered into a Lease Agreement dated April 11, 2017, ("Lease Agreement"), for the lease by Quality Foods of the contiguous property, together with the property owned by Monroe County, for an initial lease term of seven (7) years and for renewal terms of three (3) periods of five (5) years each; and WHEREAS, Quality Foods, as the current tenant of the contiguous property, desires to become the SUB -LESSEE of the leased Premises; WHEREAS, Key Marina, Quality Foods, and BOCC desire to enter into this Right -of - Way Lease Agreement reflecting the revised survey and legal description; and WHEREAS, this Right -of -Way Lease Agreement ("ROW LEASE") is entered into in order to reflect the historic encroachment upon the Second Avenue public right-of-way, of a concrete building and a frame building, existing since 1944 and the early 1960's respectively, which buildings are currently owned by Key Marina, and the additional uses of parking spaces, wheel stops, an impervious handicapped parking space, and landscaping on the County right-of-way. NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ("LESSOR") for and in consideration of the mutual covenants and agreements hereinafter contained, does hereby lease to KEY MARINA (`LESSEE") the right--of-way on Second Avenue, Key Largo, Florida, contiguous to the Mandalay development, more particularly described in paragraph two (2) below and subject to the following terms and conditions: 1. 'PERM: The Original Lease dated November 12, 1997, which expires on November 30, 2017, is hereby terminated upon approval by the BOCC and full execution of this ROW LEASE. Additionally, the ROW LEASE approved by the BOCC on January 18, 2017, 3 between the herein parties, but never executed by the Mayor on behalf of the BOCC is hereby rescinded. The initial term of this ROW LEASE shall be for a period of seven (7) years commencing retroactively to the I I th day of April, 2017, and ending on the 10`h day of April, 2024, unless sooner terminated pursuant to the provisions of this ROW LEASE. The term and renewal options of this ROW LEASE coincide with the same terms set forth in that certain Lease Agreement dated April 11, 2017, between Key Marina Development, LLC and Florida Keys Quality Foods, Inc., recorded on July 6, 2017, in the Official Records of Monroe County in Book 2863 at Page 416. 2. RENEWAL TERMS: Lessor shall have the option to renew this ROW LEASE after the original term, for three (3) additional periods of five (5) years each. 3. OPTION TO RENEW: Lessor hereby grants to Lessee the option to renew this ROW LEASE for the renewal terms on the condition that at the time Lessee exercises each option to renew, Lessee is not in default under this ROW LEASE beyond the expiration of any applicable cure period. Lessee shall exercise its right to renew and extend the lease term, if at all, by providing written notice of extension to Lessor at least ninety (90) days prior to the expiration of the lease term. 4. DESCRIPTION OF PREMISES: The property subject to this Lease is situated in the County of Monroe, State of Florida, and is more particularly described in Exhibit "B" attached hereto and made a part hereof ("Premises"). 5. CONSIDERATION:_ LESSEE shall pay to LESSOR the sum of Fifty and 00/100 Dollars ($50.00) per month for a total amount of Six Hundred and 00/100 ($600.00) Dollars annually. LESSOR agrees to pay in advance the total amount of Four Thousand Two Hundred and 00/100 ($4,200.00) Dollars as payment in full for the initial seven (7) year term of this Lease, with said rental payment to be paid within ten (10) days of execution of this ROW LEASE. If this ROW LEASE should be terminated prior to the expiration of the initial seven (7) year term by any party, or should the LESSEE default in these terms hereof, LESSEE and any subsequent Sub - Lessee waives any and all rights to the advance rental payment for any remaining rental fee which may not yet be due under the terms of the Lease. All subsequent rental payments due for any renewal period shall also be paid in full in advance for the entire renewal period upon notice of exercising LESSEE'S option to renew the Lease. All rental payments shall be made payable to Monroe County and remitted to the Monroe County Clerk of Court for the Monroe County Board of County Commissioners at 500 Whitehead Street, Key West, Florida 33040. 6. PURPOSE: This ROW LEASE is for the purpose of reflecting the historic 4 encroachment upon the Second Avenue public right-of-way, of a concrete building and a frame building, existing since 1944 and the early 1960's respectively and allowing the use of the existing buildings and accessory structures that exist on the County right-of-way as shown on the survey, a copy of which is attached hereto and made a part hereof as Exhibit "B". 7. OUIET ENJOYMENT AND RD HT OF USE: LESSEE shall have the right of ingress and egress to, from, and upon the leased Premises for all purposes necessary to the full quiet enjoyment by said LESSEE of the rights conveyed herein. 8. UNAUTHORIZED USE: LESSEE shall, through its agents and employees, prevent the unauthorized use of the leased Premises or any use thereof not in conformance with this ROW LEASE. Development shall only be as allowed by the Development Agreement dated November 14, 2007, as modified pursuant to Resolution No. P34-16 of the Monroe County Planning Commission on October 26, 2016, as to the current use and commercial square footage, as provided by law. Only parking, wheel stops, an impervious handicapped parking space, and landscaping are otherwise permitted within the leased area, outside of the structures and buildings shown on Exhibit "A", in accordance with the Development Agreement and any conditional use permit. Whether the Development Agreement is in effect or not, there shall be no changes or improvements which encroach or further increase the footprint of the existing development as shown on Exhibit "A". 9. ASSIGNMENT/SUBLEASE: This ROW LEASE shall not be assigned or subleased in whole or in part without the prior written consent of LESSOR. Any assignment or sublease made either in whole or in part, without the prior written consent of LESSOR, shall be void and without legal effect. a. LESSOR hereby consents to the sub -lease of the Premises to Florida Keys Quality Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive, Islamorada, Florida 33036, a tenant of the contiguous property and leased right- of-way upon which the existing historical encroachment is located ("Quality Foods"), so long as Quality Foods has a valid and enforceable lease with LESSEE for the contiguous property, owned by LESSEE. b. LESSEE shall provide LESSOR with a copy of its Lease Agreement with Quality Foods and any amendments or renewals thereto, within ten (10) days of execution thereof. c. Should LESSEE and Quality Foods fail to enter into a valid lease for the contiguous property, at this time or at any time in the future, the consent for sub 5 lease will be automatically terminated. d. The consent authorized in this ROW LEASE is solely for the sub -lease of the leased Premises to Quality Foods as the SUB -LESSEE and not to any subsequent Sub - Lessee without prior written approval. 10. EASEMENTS: This ROW LEASE is subject to any utility easement existing on said leased Premises. Any other easement not approved in writing by LESSOR shall be void and without legal effect. 11. RIGHT OF INSPECTION: LESSOR or its duly authorized agents, representatives, or employees shall have the right at any and all times during daylight hours to inspect the leased Premises and the works and operations of LESSEE in any matter pertaining to this ROW LEASE. 12.INSURANCE REQUIREMENTS: During the term of this ROW LEASE, LESSEE shall procure and maintain policies of fire, extended risk, and general liability insurance coverage. The liability insurance coverage shall be in an amount not less than Two Hundred Thousand Dollars and 00/100 ($200,000.00) per occurrence and Three Hundred Thousand Dollars and 00/100 ($300,000.00) per occurrence for personal injury, death, and property damage on the leased Premises. Such policies of insurance shall name LESSOR, Monroe County, as an additional insured. LESSEE shall submit written evidence of having procured all insurance policies required herein prior to the effective date of this ROW LEASE and shall submit annually thereafter written evidence of maintaining such insurance policies to the Monroe County Clerk of the Court, 500 Whitehead Street, Key West, Florida 33040. LESSEE shall purchase all policies of insurance from a financially responsible insurer duly authorized to do business in the State of Florida. LESSEE shall be financially responsible for any loss due to failure to obtain adequate insurance coverage, and the failure to maintain such policies or certificates in the amounts set forth shall constitute a breach of this ROW LEASE. 13. LIABILITY AND INDEMNIFICATION: Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, LESSEE covenants and agrees that it shall defend, indemnify, and hold the LESSOR and LESSOR'S elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, Fine, penalty or business interruption, and (iii) any costs or expenses that may be asserted against, initiated with respect to, or sustained by any indemnified party by reason of, or in connection with, (a) any activity of LESSEE or any of its employees, agents, sub -lessees in any tier, or other invitees during the 5 term of this Agreement, (b) the negligence or willful misconduct of LESSEE or any of its employees, agents, sub -lessees in any tier, or other invitees except to the extent the claims, actions, causes of action, litigation, proceedings, costs, or expenses arise from the intentional or sole negligent acts or negligent acts in part or omissions of the LESSEE or any of its employees, agents, contractors, or invitees (other than LESSEE). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses related to events or circumstances that occur during the term of this R O W LEASE, this section will survive the expiration of the term of this ROW LEASE or any earlier termination of this ROW LEASE. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this ROW LEASE. 14. PAYMENT OF TAXES AND ASSESSMENTS: LESSEE shall assume full responsibility for and shall pay all liabilities that accrue to the leased Premises or to the improvements thereon, including any and all ad valorem taxes and drainage and special assessments or taxes of every kind and all mechanic's or materialmen's liens which may be hereafter lawfully assessed and levied against the leased Premises. 15. NO WAIVER OF_BREACH: The failure of LESSOR to insist in any one or more instances upon strict performance of any one or more of the covenants, terms, and conditions of this ROW LEASE shall not be construed as a waiver of such covenants, terms, or conditions, but the same shall continue in full force and effect, and no waiver of LESSOR of any of the provisions hereof shall in any event be deemed to have been made unless the waiver is set forth in writing, signed by LESSOR. 16. TI 1M: Time is expressly declared to be of the essence of this ROW LEASE. 17. UTILITY FEES: LESSEE shall be responsible for the payment of all charges for the furnishing of gas, electricity, water, and other public utilities to the leased Premises and for having all utilities turned off when the leased Premises are surrendered. 18. MINERAL RIGHTS: This ROW LEASE does not cover petroleum or petroleum products or minerals and does not give the right to LESSEE to drill for or develop the same, and LESSOR specifically reserves the right to lease the leased Premises for purpose of exploring and recovering oil and minerals by whatever means appropriate; provided, however, that LESSEE named herein shall be fully compensated for any and all damages that might result to the leasehold interest of said LESSEE by reason of such exploration and recovery operation. lu 19. RIGHT OF AUDIT: LESSEE shall make available for LESSOR all financial and other records relating to this ROW LEASE and LESSOR shall have the right to either audit such records at any reasonable time or require the submittal of an annual independent audit by a Certified Public Accountant during the term of this ROW LEASE. This right shall be continuous until this ROW LEASE expires or is terminated. This ROW LEASE may be terminated by LESSOR should LESSEE fail to allow public access to all documents, papers, letters or other materials made or received in conjunction with this Lease, pursuant to the provisions of Chapter 119, Florida Statutes. 20. CONDITION OF PREMISES: LESSOR assumes no liability or obligation to LESSEE with reference to the condition of the leased Premises. The leased Premises herein are leased by LESSOR to LESSEE in an "as is" condition, with LESSOR assuming no responsibility for the care, repair, maintenance, or improvement of the leased Premises for the benefit of the LESSEE. 21. COMPLIANCE WITH LAWS: LESSEE agrees that this ROW LEASE is contingent upon and subject to LESSEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of Monroe County, the State of Florida or the United States or of any political subdivision or agency of either. 22. BREACH OF COVENANTS. TERMS OR CONDITIONS: Should LESSEE breach any of the covenants, terms or conditions of this ROW LEASE, LESSOR shall give written notice to LESSEE to remedy such breach within sixty (60) days of such notice. In the event LESSEE fails to remedy the breach to the satisfaction of LESSOR within sixty (60) days of receipt of written notice, LESSOR may either terminate this ROW LEASE and recover from LESSEE all damages LESSOR may incur by reason of the breach including, but not Iimited to, the cost of recovering the leased Premises and attorneys' fees or maintain this ROW LEASE in full force and effect and exercise all rights and remedies herein conferred upon LESSOR. 23. DAMAGES TO THE PREMISES: a. LESSEE shall not do, or suffer to be done, in, on or upon the leased Premises or as affecting said leased Premises or adjacent properties, any act which may result in damage or depreciation of value to the leased Premises or adjacent properties, or any part thereof. i b. LESSEE shall not generate, store, produce, place, treat, release or discharge any contaminants, pollutants or pollution, including, but not limited to, hazardous or 8 toxic substances, chemicals or other agents on, into, or from the leased Premises or any adjacent lands or waters in any manner not permitted by law. For the purposes of this ROW LEASE, "hazardous substances" shall mean and include those elements or compounds defined in 42 USC Section 9601 or which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated by the United States Congress or the EPA or defined by any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance, material, pollutant or contaminant. "Pollutants" and "pollution" shall mean those products or substances defined in Florida Statutes, Chapter 376 and Chapter 403, and the rules promulgated thereunder, all as amended or updated from time to time. In the event of LESSEE's failure to comply with this paragraph, LESSEE shall, at its sole cost and expense, promptly commence and diligently pursue any legally required closure, investigation, assessment, cleanup, decontamination, remediation, restoration and monitoring of (1) the leased Premises, and (2) all off -site ground and surface waters and lands affected by LESSEE's such failure to comply, as may be necessary to bring the leased Premises and affected off -site waters and lands into full compliance with all applicable federal, state, or local statutes, laws, ordinances, codes, rules, regulations, orders and decrees, and to restore the damaged property to the condition existing immediately prior to the occurrence which caused the damage. LESSEE's obligations set forth in this paragraph shall survive the termination or expiration of this ROW LEASE. This paragraph shall not be construed as a limitation upon LESSEE's obligations regarding indemnification and payment of costs and fees as set forth in paragraph 11 of this ROW LEASE, nor upon any other obligations or responsibilities of the LESSEE as set forth herein. Nothing herein shall relieve LESSEE of any responsibility or liability prescribed by law for fines, penalties and damages levied by governmental agencies, and the cost of cleaning up any contamination caused directly or indirectly by LESSEE's activities or facilities. Upon discovery of a release of a hazardous substance or pollutant, or any other violation of local, state, or federal law, ordinance, code, rule, regulation, order or decree relating to the generation, storage, production, placement, treatment, release or discharge of any contaminant, LESSEE shall report such violation to all applicable governmental agencies having jurisdiction and to LESSOR, all within the reporting period of the applicable agency. c.I Should the buildings which extend onto the leased Premises be substantially damaged for any reason and cannot be repaired but must, pursuant to law, be removed and replaced by structure(s) meeting laws in existence at the time of such E occurrence, this ROW LEASE shall be automatically terminated. 24. SURRENDER OF PREMISES: Upon termination or expiration of this ROW LEASE, LESSEE shall surrender the leased Premises to LESSOR. In the event no further use of the leased Premises or any part thereof is needed, LESSEE shall give written notification to LESSOR at least six (6) months prior to the release of any or all of the leased Premises. Notification shall include a legal description and an explanation of the release. The release shall only be valid if approved by LESSOR through the execution of a release of the ROW LEASE instrument with the same formality as this ROW LEASE. Prior to surrender of all or any part of the leased Premises, a representative of the Division of State Lands shall perform an on -site inspection. If the leased Premises violate conditions set forth in paragraph 8 herein, LESSEE shall pay all costs necessary to remove any unauthorized improvements or changes. 25. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES: Fee title to the leased Premises is held by LESSOR. LESSEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property contained in the leased Premises including, but not limited to, mortgages or construction liens against the leased Premises or against any interest of LESSOR therein. Notwithstanding, LESSEE shall be entitled to mortgage its leasehold interest in the Premises provided such mortgage interest is subordinate to the terms and conditions of the ROW LEASE. LESSEE shall provide the documents to LESSOR thirty (30) days before closing to verify that the appropriate language is in the proposed documents. 26. PARTIAL INVALIDITI: If any term, covenant, condition or provision of this ROW LEASE shall be ruled by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 27. ARCHAEOLOGICAL AND HISTORIC SITES: Execution of this ROW LEASE in no way affects any of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state-owned lands is prohibited unless prior authorization has been obtained from the Department of State, Division of Historical Resources. 28. SOVEREIGNTV SUBMERGED LANDS: This ROW LEASE does not authorize the use of any lands located waterward of the mean or ordinary high water line of any lake, river, stream, creek, bay, estuary or other water body or the waters or the airspace thereabove. 10 29. DUPLICATE ORIGINALS: This ROW LEASE is executed in duplicate originals each of which shall be considered an original for all purposes. 30. ENTIRE UNDERSTANDING: This ROW LEASE a n d t h e e x h i b i t s a t t a c h e d hereto set forth the entire understanding between [lie parties and shall only be amended with the prior written approval of LESSOR. 31. MAINTENANCE OF IMPROVEMENTS: LESSEE shall maintain the real property contained within the leased Premises in a state of good condition including, but not limited to, keeping the leased Premises free of trash or litter and meeting all building and safety codes in the location situated. 32. GOVERNING LAW / VENUE: This ROW LEASE shall be governed by and interpreted according to the laws of the State of Florida and venue for any action arising under this ROW LEASE shall be in Monroe County, Florida. The parties agree to mediate any disputes under this ROW LEASE, and further agree that it is not subject to arbitration. 33. SECTION CAPTIONS,: Articles, subsections and other captions contained in this ROW LEASE are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this ROW LEASE or any provisions thereof. 34. NOTICES. All notices given under this ROW LEASE shall be in writing and shall be served by certified mail including, but not limited to notice of any violation served pursuant to Sec. 253.04, Florida Statutes, to the last address of the party to whom notice is to be given, as designated by such party in writing. LESSOR, LESSEE, and SUB LESSEE, hereby designate their addresses as follows: LESSOR: County Administrator 1100 Simonton Street Suite 205 Key West, Florida 33040 LESSEE: Key Marina Development, LLC 52 Riley Road, Unit 155 Celebration, Florida 34747 al SUB -LESSEE: Florida Keys Quality Foods, Inc. 125 Milano Drive Islamorada, Florida 33036 35. JURY TRIAL. In the event of a dispute, all parties hereto agree to waive the right to a jury trial. 36. ATTORNEY'S FEES AND COSTS. The LESSOR, LESSEE, and any subsequent SUB -LESSEE agree that in the event of any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this lease, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall include attorney's fees, court costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this ROW LEASE shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the Circuit Court of Monroe County. 37. BINDING EFFECT. The terms, covenants, conditions, and provisions of this ROW LEASE shall bind and inure to the benefit of the LESSOR and LESSEE and their respective legal representatives, successors, and assigns. 38. AUTHORITY. Each party represents and warrants to the other that the execution, delivery, and performance of this ROW LEASE have been duly authorized by all necessary County and corporate action, as required by law. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. rSEAL) ATTEST: KEVIN MADOK, CLERK IM 117M. ff I M_ 1 M [9)• Eel NII BY: Mayor/Chairperson MONROE COUNTY ATrORNEY'S OFFICE I A A PROVED AST PZ28m0r-V=P�_S_T_ OF- PATRICIA EAGLES ASSISTANT COUNTY ATTORNEY IIATE: wL�_ I � 1 1--- I Packet Pg. 1353 WITNESSES: 7L Print Name Print Name: MR 13, KEY MARINA DEVELOPMENT, LLC LESSEE BY:/ Print Name: Title: 11xi ws'-ft'I'v SUB -LESSEE BY:-, Print Name." (Apedoid AelepueW uo asee-I AeM-lo-;LlBilj mON) (--8 jol pedwe;s jeBepy pe;n3exe Allei:ped) asee-I AeM-lo-;t4Bilj :;uewt43e;;v Iq CY! C-2 Lo w m T- Ch SKETCH AND DESCRIPTION A PORTION OF AMENDMENT TO LEASE (O.R.B. 2539, PG.1634, M.C.R.) KEY LARGO, MONROE CONTY, FLORIDA SURVEYOR'S NOTES: 1. Reproductions of this Sketch are not valid without the signature and the original raised seal of a Florida licensed surveyor and mapper. 2. No Title Opinion or Abstract to the subject property has been provided. It is possible that there are Deeds, Easements, or other instruments (recorded or unrecorded) which may affect the subject property. No search of the Public Records has been made by the Surveyor. 3. The land description shown hereon was prepared by the Surveyor. 4. Bearings shown hereon are based on the adjoining plot of KEY LARGO NORTH, recorded in Plat Book 7, Page 22 of the Public Records of Monroe County, Florida with the northeasterly right—of—way line of Second Avenue having a bearing of N 4437'16" W. 5. Data shown hereon was compiled from instrument(s) of record and does not constitute a boundary survey. 6. Abbreviation Legend: F.B. = Field Book; L.B. = Licensed Business; M.C.R. = Monroe County Records; No. = Number; O.R.B. = Official Records Book; P.B. = Plat Book; PG. = Page; P.L.S. = Professional Land Surveyor; P/0 = a Portion at P.O.B. = Point of Beginning; P.O.C. _ Point of Commencement; S.F. = Square Feet. CERTIFICATION: HEREBY CERTIFY that the attached Sketch and Description of the hereon described property is true and correct to the best of my knowledge and belief as prepared under my direction. I FURTHER CERTIFY that this Sketch and Description meets the Standards of Practice set forth in Chapter 5J-17, Florida Administrative Code, pursuant to Section 472.027, Florida.' Statutes. Date: C 7 .— c.:. K CHEE—A—TOW, P.L.S. Florida Registration No. 5328 AVIROM & ASSOCIATES, INC. L.B. No. 3300 NOT VALID WITHOUT SHEETS 1 - 3 REVISIONS AVIROM & ASSOCIATES, INC. opt► & ASSO SURVEYING & MAPPING 50SW.2ndAVENUESUffEioz 4 rn m BOCA RATON. FLOR1pA 33432 IT TEL (561) 392-2594, FAX (561) 394-7125 u1vw.A MOMSURVtYcom ED 4°� (b=8 AVZROMaASSOCGITE$ rNG &T V1=reWrmd. T?W SActen es ft PmPCRY or AV.IMJ 6 ASSOC44TES. INC. and ShOdd oar De Momdaeea orcap*d w4-mt xrnren Perrus m JOB #. 9881-6 SCALE- 1' = 30' DATE: 12(07)2016 8Y: S.R.L CHECKED: SAM. F.B. NONE PG. SHEET: 1 OF 3 Exhibit: B, Page 1 of 3 SKETCH AND DESCRIPTION A PORTION OF AMENDMENT TO LEASE (O.R.B. 2539, PG.1634, M.G.R.) KEY LARGO, MONROE COUNTY, FLORIDA LAND DESCRIPTION: A portion of an Amendment to Lease, as recorded in Official Records Book 2539, Page 1534, of the Public Records of Monroe County, Florida, described as follows: A portion of Second Avenue adjacent to Lot 1, Block 4, MANDALAY, according to the Plot thereof, as recorded in Plot Book 1, Page 194, of the Public Records of Monroe County, Florida, described as follows: COMMENCE at the intersection of the centerline of said Second Avenue with the centerline of East Second Street, according to said Plat; thence S 4437'16" E along the centerline of said Second Avenue, a distance of 25.00 feet to a point on the southwesterly projection of the southeasterly right—of—way line of East Second Street; thence N 45'17'46" E along said southwesterly projection of East Second Street, 9.60 feet to a line being 20.40 feet southwesterly of and parallel with the northeasterly right—of—way line of said Second Avenue, said line also being the southwesterly limits of said Amendment to Lease; thence S 4437'16" E along said parallel line and said southwesterly limits of said Amendment to Lease, 19.99 feet to a point on the southeasterly limits of a proposed cul—de—sac and a point on a non —tangent curve, concave to the east, having a radius of 20.75 feet and a central angle of 17'20'06" (a radial line bears S 75'05'47" E from said point), said point also being the POINT OF THE BEGINNING; thence northerly along said southeasterly limits of proposed cul—de—sac along the arc of and said non —tangent curve, a distance of 6.28 feet; (the next three courses and distances being along said southeasterly limits of proposed cul—de—sac) thence N 47'21'06" E, 3.52 feet; thence N 43'27'45" E. 3.27 feet to a point on a non —tangent curve, concave to the northwest, having a radius of 50.00 feet and a central angle of 10'56'18" (a radial line bears S 48'24'43" E to said point); thence northeasterly along the arc of said non —tangent curve a distance of 9.55 feet to the northeasterly line of said Amendment to Lease and a point of cusp with a non—tongent curve, concave to the northeast, having a radius of 25.00 feet and a central angle of 2034'30" (a radial Tine bears S 65'57'14" W from said point); thence southeasterly along said northeasterly fine of Amendment to Lease and the arc of salad non —tangent curve, a distance of 8.98 feet to a point of tangency, thence S 44'37'16" E along said northeasterly fine of Amendment to Lease also being said northeasterly right--of—way line of said Second Avenue, a distance of 151.90 feet to the southeasterly limits of said Amendment to Lease; thence S 4522'44" W along said southeasterly IQmits of said Amendment to Lease, a distance of 20.40 feet to said line being 20.40 feet southwesterly of and parallel with the northeasterly right —of --way line of said Second Avenue and said southwesterly limits of said Amendment to Lease; thence N 44'37'16" W, along said parallel line and said southwesterly limits of said Amendment to Lease, a distance of 156.84 feet to the POINT OF BEGNNING. Said lands lying and situate in Key Largo, Monroe County, Florida, containing 3,249 square feet (0.075 acres), more or less. NOT VALID WITHOUT SHEETS 1- 3 REVISIONS AVIROM & ASSOCIATES, INC. JOBR 9881-6 SURVEYING & MAPPING SCALE 1•=30' c�`&AssoC� 50 & W 2ndAVENUE, SUITE 102 DATE: 1207=16 4 M BOCA BATON, FLORIDA 33432 BY: SAL TEL W11) 392-2594, FAX (561) 394-7725 vrnw.AV7ROMSURVEycom CHECKED: SAM. =6 A VIMJ 49 ASSOCG4 .1NC. ,2g g9, s MWfVM F.B. NONE PG. rfaskVt04tDePopery0uAvr AA5 TESWa , a6dZhGLW M ae rtpftueW aca +wMWl wntten pemusven, SHEET: 2 O F 3 Exhibit: B, Page 2 of 3 SKETCH AND DESCRIPTION A PORTION OF AMENDMENT TO LEASE (O.R.B. 2539, PG.1634, M.C.R.) KEY LARGO, MONROE COUNTY, FLORIDA Q���a G� R=50.00' �=10756'18" �e�� ``�S' L=9.55' Dy ,N�' N 43027'45" E 3.27' N47021'06"E 3. N 4517'46" E 9.60'-r P.O.C. s INTERSECTION OF �a CENTERLINE OF SECOND AVENUE q7•�'' AND CENTERLINE F EAST SECOND STREET S 44'37'16" E 19.99' SOUTHWESTERLY LIMITS OF AMENDMENT TO LEASE (0 R.B. 2539/1634 M.C.R.) R=20.75' A-=17"20'06" L=6.28' SOUTHEASTERLY 55d� �P LIMITS PROPOSED CUL—DE—SAC POINT OF CUSP s 65 =25.00 A=20'34'30" L=8.98' 0 30 60 GRAPHIC SCALE IN FEET `p c �9�vcf- NORTHEASTERLY �4/ TO LEASE E LINE SE AMENDMENT 10 tl (O.R.B. 2539/1634 M.C.R.) s O s �y0�`19,�� NO �3 O 7 0, 9[' c �FJJ 20.40' SOUTHWESTERLY OF AND PARALLEL NTH NORTHEASTERLY RIGHT-OF-WAY SECOND AVENUE NOT VALID WITHOUT SHEETS 1- 3 `V' REVISIONS AVIROM & ASSOCIATES, INC. `d. JOBS: 9881-6 & MAPPING SCALE: 1"= 30' Q S W. 2nd AVENUE, SUITE tot DATE 12l07/201fi (�?"'SURVEYING BOCA RATON, FLOR DA 33432 BY. S.RL.TEL (561) 392-2594. FAX(567) 394-7125 m w.AVIROMSURVEYcom CHECKED: SAM. ©tee AVLWMaASSMA7Ps,tN a6 np=reserved. F.B. NONE PG. Taa zwwh is 160 pv a/ A11111 6 lA1i 3 INC. a rmtx wiped ewasanpe,msaors. SHEET:: 3 OF 3 Exhibit B, Page 3 of 3 Client#:1526849 132CAROLQUA ACORD. CERTIFICATE OF LIABILITY INSURANCE aA-M`uMMOn'"71 212212D17 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER;, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policypes j must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, cortaln policies may require an endorsement. A statement an this certificate does not confer rights to the certificata holder In lieu of such andamement(s). PRODUCER Ee. Blanca Palomo BB&T-Oswald Trippe and Company P" E 305.779-7554FAX AIC No : 806-$02-$884 2400 N Commerce Pkvvy, Ste 204 E-MAIL Weston, FL 33326 9S4 389-1289 (INJURER s AFFORDWO COVERAGE "Co INSURER A ; Security National Insurance Cam 19379 INSURED Florida Key Quality Food Inc. INSURER B - dba Island Grill at the Mandalay INSURERC. 125 Milano Drive INSURER Islamolada, FL 33036 INSURER E I INSU RF: COVERAGES CERTIFICATE NUMBER. REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAR) CLAIMS. L TYPE OF INSURANCE L V0 POLICY NUMBER M N Uuml AX COMMERCULLGENERAL LIABILITY Y SES110874702 0211912017 0211912011 jLcH occuRRENcE k111600000 CLAIMS -MADE a OCCUR 9 a N $1100 DOD X BIIPD Ded:1 000 MEO $5,000 PERSONAL t ADV RIJURY s1 000 000 GERL AGGREGATE LIMIT APPLIES PER GENER&AGGREGATE s2,000,000 POLICY ❑ JCCT ❑ Loa PROOMTS-CouPiCIPAGG s2,000,000 OTHEW S AUTOMOBILE LIABILITY IiIY CC NZILS L£LOW ANY AUTO 1VW 13Y FWK' Ii slxtRY IPA 7 x ALLOWNED G AUMS AUTOS IRYIPef� II HtREG ALiT05HSACUHTOWSULE D �— �� FPROP�ER�TV O rAE s o. $ UMBRELLALUB C of CH CU @ICE L-it W a EXCEssuA1 C IM&M E ADOReGATEs UEa N NS 3 WORKERS COMPENSATION O AND EMPLOYER!' UABILM V i N ANYPROPMETf] AR E C OFFICERUEMBEREXCL 7 NIA E. �11:MSE 3 (MandAwyinNH) E.E E VS If FynkI, darr16e,ender DESCI7I 5 E.L.• Y LILBF 3 A Liquor Liability SESI I C874702 0211912017 02/191201 E $1,000,000 Limit $1,000 Deductible DESCRIPTION OF OPERATIONS ILOCATIGNS 1 VEHICLES IACORD 101. AddWenal Remarks Sdwddk. may be &Na0*dll If 3 Monroe County Board of County Commissions Is named as dill al I s d with a pact to General Liability. ISK EMENT Y DA I � wAjv�(w YES Monroe County Board of County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. NOTICE WILL BE OELIVERED IN Commissions ACCORDANCE WITH THE POLICY PROVISIONS. 111 i -12th Street, Ste#408 Key West, FL 33040 AUTHOWN0 REPRESENTATIVE INO.2014 ACORD CORPORATION. All rights reserved. ACORD 28 (2014101) 1 of 1 The ACORD name and logo are registered marks of ACORD #S17679072IM17647303 ALYA LEASE AGREEMENT Date: April , 2017 By and Between KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company Landlord and FLORIDA KEYS QUALITY FOODS, INC., a Florida corporation Tenant 80 East 2nd Street Key Largo, Florida 33037 29293920 v6 LEASE AGREEMENT THIS LEASE AGREEMENT ("Lease") is made as of the / day of April, 2017, between KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company ("Landlord") and FLORIDA KEYS QUALITY FOODS, INC., a Florida corporation ("Tenant"). WITNESSETH: THAT in consideration of the mutual covenants and agreements herein contained, Landlord and Tenant hereby agree as follows: A. CERTAIN DEFINITIONS As used in this Lease, the following terms shall have the respective meanings assigned to them. Additional Rent: Any amounts other than Base Rent to be paid by Tenant to Landlord pursuant to the provisions of this Lease, whether such payments are to be periodic and recurring or not. Applicable Laws: All applicable federal, state and local laws, rules, regulations, ordinances, codes and orders and all applicable industry codes and standards. Approvals: All approvals of Governmental Authorities required for the construction of the Building and for any alteration, as applicable. Base Rent: $64,890 annually, subject to increases during Renewal Term(s), as set forth herein. Building: The approximately 4,500 sf building constructed on the Land in which the Premises is located. Commencement Date: The same date as the Effective Date. Default Rate: The lesser of (i) eighteen percent (18%) or (ii) the highest rate permitted by law. Effective Date: The date when this Lease has been fully executed by both Landlord and Tenant. Governmental Authorities: The United States of America, the State of Florida, the county where the Premises is located, the city where the Premises is located, any political subdivision thereof, and any other governmental or regulatory authority, agency, board, department, bureau, body, commission, or instrumentality, or quasi -governmental authority, and any court, arbitrator, or other administrative, judicial or quasi-judicial tribunal, or any other public or quasi -public authority having jurisdiction over the Premises or the matter at issue. 29293920 v6 Guaranty: That certain guaranty agreement executed by Sam Nekhaila in substantially the form attached hereto as Exhibit "A". Initial Lease Term: The Initial Lease Term shall be seven (7) Lease Years commencing on the Effective Date hereof. Land: The real property owned by Landlord located at 80 East 2nd Street, Key Largo, FL 33037, together with the real property owned by Monroe County and leased to Landlord pursuant to Right of Way Lease Agreement dated on or about even date herewith (the "ROW Lease"), and all buildings, site improvements situated thereon, including but not limited to, if any, drive aisles, parking areas, access to public streets, storm drainage facilities and utilities. Lease Term: The Initial Lease Term, together with each Renewal Term timely exercised by Tenant. If each Renewal Term is timely exercised, the Lease Term shall be a total of twenty-two (22) Lease Years. Lease Year: Each twelve (12)-month period commencing on the Commencement Date and ending on the date twelve (12) months thereafter. Permitted Use: A restaurant and bar. Premises: The Land including the Building, together with all other improvements located on the land, as generally depicted on Exhibit `B". Renewal Terms: If timely exercised, three (3) periods of five (5) years each, commencing following the expiration of the Initial Lease Term. Rent: Collectively, Base Rent and Additional Rent. Rent Commencement Date: The same date as the Commencement Date. Security Deposit: N/A. B. PREMISES Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease from Landlord, the Premises, together with all Landlord's licenses, rights, privileges and easements appurtenant to the Premises, together with the right to use the parking areas and other areas on the Land. For the avoidance of doubt, Landlord hereby subleases to Tenant the portion of the Premises subject to the ROW Lease. This Lease shall be subject to the terms and conditions set forth in the ROW Lease. Tenant shall, at all times hereunder, comply with the terms of the ROW Lease, a copy of which has been provided to Tenant. Tenant shall have no rights to use any portion of Landlord's adjacent property, which Landlord may develop and/or redevelop in its sole and absolute discretion. C. TERM OF LEASE 29293920 v6 Term. This Lease shall remain in effect for the Lease Term. 2. O 1tion, to Renew. Landlord hereby grants to Tenant the option to renew this Lease for the Renewal Terms on the condition that at the time Tenant exercises each option to renew, Tenant is not in default under this Lease beyond the expiration of any applicable cure period. The Renewal Term shall be upon the terms and conditions contained in this Lease, except that the Base Rent during the Renewal Term(s) shall increase each Lease Year by three percent (3%) over the Base Rent for the immediately preceding Lease Year. Tenant shall exercise its right to renew and extend the Lease Term, if at all, by providing written notice of extension to Landlord at least twelve (12) months prior to the expiration of the Lease Term. This option to renew is personal to the Tenant and shall be null and void upon any assignment or sublease of this Lease. D. ABSOLUTE NET LEASE This is an "Absolute Net" lease. In addition to Tenant paying Rent and Additional Rent (as defined in this Lease), Lessee shall be responsible, at Tenant's sole cost and expense, for all upkeep, repairs, improvements, assessments, utilities, landscaping, maintenance and replacements, including capital items (such as the roof, structure, HVAC and parking lot), which may be incurred or necessary to the Premises during the Term, as more particularly set forth herein. E. SECURITY DEPOSIT Not Applicable F. RENT 1. Base Rent. Tenant shall pay to Landlord the Base Rent during the Lease Term as set forth below. 2. Additional Rent. For each month of the Lease Term hereof, Tenant shall pay to Landlord any other sums required to be paid by Tenant to Landlord hereunder as Additional Rent. Landlord may, at its sole option, adjust Tenant's monthly payments of estimated charges if Landlord, in its reasonable judgment, determines the estimated charges are incorrect. 3. Installments. Base Rent and Additional Rent shall be payable in equal monthly installments in advance on the first day of each month. If the Rent Commencement Date shall be other than the first (1st) day of a calendar month, then the Base Rent and all other costs, monies or amounts which are required to be paid by Tenant pursuant to the terms of this Lease including, without limitation, Additional Rent, for the calendar month in which the Rent Commencement Date shall occur, shall be prorated based on the portion of such calendar month contained within the Term, and such prorated amount shall be due and payable on the first day of the first calendar month occurring after the Rent Commencement Date. 4. Sales Tax. Tenant agrees to pay Landlord all applicable Florida sales tax due in connection with the Base Rent, Additional Rent, and all other sums required to be paid by Tenant hereunder or as otherwise determined by the applicable governmental authorities to be owed 29293920 v6 hereunder. Such sales tax payments shall be made together with the monthly Base Rent payments provided for herein. This obligation shall survive expiration or such earlier termination of this Lease. 5. Late Payment. Any payment of Rent and/or Additional Rent payable to Landlord hereunder which is not paid when due and which remains unpaid for five (5) days after Lessee's receipt of written notice from Lessor of such delinquency shall bear interest from the date when due at the maximum rate of interest for which Landlord may lawfully contract in the State in which the Premises is situated. G. OPERATING COSTS "Operating Costs" shall mean the total of any and all of the costs incurred relating to the operation, and maintenance of the Land, the Building and the Premises. Operating Costs shall also include those expenses incurred for off -site improvements benefiting the Land, including, but not limited to, costs such as (i) landscaping, (ii) road repairs and maintenance, (iii) security, (iv) signage installation, replacement and repair, (v) stormwater; (vi) parking areas and drive aisles; and (vii) common area utilities. Landlord shall not be responsible for the Operating Costs or for maintaining or operating the Land, Building or Premises, all of which shall be paid for and performed by Tenant in accordance with Section J below. To the extent Landlord pays directly or is otherwise required to pay a third party for any amount that constitutes an Operating Cost, Tenant shall pay such amount to Landlord as Additional Rent as required herein. H. TAXES, UTILITIES AND INSURANCE 1. Taxes. Tenant, on or before November 30th of each calendar year, shall pay directly to the applicable governmental taxing authority all ad valorem real property taxes and assessments ("Taxes") against the Land, Building and Premises during each calendar year or portion thereof during the Term in arrears, annually, together with any applicable sales taxes thereon, if any. Tenant shall direct the Tax Collector to mail the bills for the Taxes to Tenant. Tenant, without request from Landlord, shall pay the Taxes and shall provide Landlord with written confirmation from the Tax Collector of the payment of the Taxes. Additionally, Tenant shall pay, prior to any deadline and before delinquency, all personal property taxes due on Tenant's tangible personal property located on the Premises. Notwithstanding the foregoing to the contrary, in the event the Premises are part of a larger tract owned by Landlord, Landlord shall provide Tenant with the tax bill for such larger tract and an invoice for Tenant's prorata portion of such tax bill based on the acreage, the numerator of which shall be the acreage within the portion of the Premises included on such tax bill and the denominator of which shall be the overall acreage of the tax parcel, and Tenant shall pay Landlord such prorata amount within ten (10) days from such invoice. 2. Utilities and Refuse. Tenant shall be solely responsible for, and shall promptly pay, all connection fees, tap fees, impact fees, deposits and usage charges for use or consumption of electricity, potable water, sewer, utility, trash removal or any other utility services for the Premises. Landlord at its option may control the provider of service to the Premises. Landlord shall not be liable in the event of any interruption in the supply of any utilities. Tenant agrees that it will not install any equipment which will exceed or overload the capacity of any utility 4 29293920 v6 facilities and that if any equipment installed by Tenant shall require additional utility facilities, the same shall be installed at Tenant's expense in accordance with plans and specifications to be approved in writing by Landlord. Tenant is responsible for interior janitorial, pest control, and waste removal services, including grease trap maintenance. In no event will Landlord be liable for damages resulting from failure to furnish HVAC, elevator, water, electric, or other service, and any interruption or failure will in no manner constitute an eviction of Tenant or entitle Tenant to abatement of any Rent due under this Lease. Tenant shall be responsible for Tenant's trash and refuse collection and disposal, including grease trap. Tenant agrees to keep Tenant's refuse in proper containers until the same is removed from the Premises and not to permit any of Tenant's refuse to accumulate around the exterior of the Building in violation of Applicable Laws. 3. Tenant's Insurance. a. Prol)erty Damage Coverage/Fire and Extended Coverage. At all times during the Lease Term hereof, Tenant shall, at its own cost and expense, maintain in effect policies of property damage insurance covering other improvements on the Land, as well as the Building and Tenant's trade fixtures, merchandise and other personal property and improvements from time to time in, on or upon the Premises, in an amount not less than one hundred percent (100%) of their actual replacement cost from time to time during the Lease Term, providing protection against any peril included within the classification "Fire and Extended Coverage", including wind, hail, named storm and sinkhole coverage, Change in Ordinance or Law coverage, and insuring against sprinkler damage, vandalism and malicious mischief. The proceeds of such insurance shall be used for the repair or replacement of the property so insured, except as otherwise set forth herein. b. Tenant Liability, Insurance. Tenant shall, at all times during the Lease Term hereof and at its own cost and expense, procure and continue in force comprehensive general liability insurance for bodily injury and property damage, adequate to protect Landlord against liability for injury to or death of any person, arising in connection with the use, operation or condition of the Premises. Such insurance at all times shall be in an amount of not less than a combined single limit of One Million and 00/100 Dollars ($1,000,000.00) per occurrence, and Two Million and 00/100 Dollars ($2,000,000.00) general aggregate, insuring against any and all liability of the insured with respect to said Premises or arising out of the use or occupancy thereof. In addition, Tenant shall, at all times during the Lease, maintain automobile liability insurance policy in the amount of not less than One Million and 00/100 Dollars ($1,000,000.00) for all owned, hired and non -owned vehicles and to the extent Tenant utilizes valet parking services, Tenant shall maintain one or more garagekeepers legal liability policies in such form as is reasonably required by Landlord. C. Additional Insurance. Tenant shall, at all times during the Lease Term hereof and at its own cost and expense, procure and continue in force the following: (i) workers compensation insurance with limits kept and maintained at State of Florida statutory limits; (ii) business interruption insurance in amounts sufficient to prevent Tenant from becoming a coinsurer thereof, and to assure the continuance of the operating income and profit of Tenant's business for a period of at least one (1) year following any fire or other casualty, the elements, civil commotion or riot, or any other cause, whether insured or uninsured; and (iii) liquor 29293920 v6 liability and so-called "dram shop" insurance written on an "occurrence" basis, rather than a "claims -made" basis, with combined single limits of not less than Two Million and 00/100 Dollars ($2,000,000.00) per occurrence (such insurance to be procured and maintained by Tenant only if alcoholic beverages are sold or served by Tenant for on or off -premises consumption). d. Police Form. All insurance required to be carried by Tenant hereunder shall be issued by responsible insurance companies, qualified to do business in the State of Florida and reasonably acceptable to Landlord. Each policy shall name Landlord, and at Landlord's request any mortgagee of Landlord, as an additional insured, as their respective interests may appear, and copies of all policies or certificates evidencing the existence and amounts of such insurance shall be delivered to Landlord by Tenant at least ten (10) days prior to Tenant's occupancy of the Premises. No such policy shall be cancelable except after ten (10) days prior written notice to Landlord and Landlord's mortgagee. Tenant shall furnish Landlord with renewals or binders of any such policy at least ten (10) days prior to the expiration thereof. Tenant agrees that if Tenant does not take out and maintain such insurance, Landlord may (but shall not be required to) procure said insurance on Tenant's behalf and charge the Tenant the premiums, plus a five percent (5%) handling charge, payable upon demand. Tenant shall have the right to provide such insurance coverage pursuant to blanket policies obtained by the Tenant provided such blanket policies expressly afford coverage to the Premises and to Tenant as required by this Lease. I. USE OF PREMISES BY TENANT 1. Disclaimer of Warranties and Condition of Premises. Tenant is currently and has been in exclusive occupancy of the Premises since 2010. As such, Landlord makes no warranties or representations of any kind concerning the condition of the Premises or its fitness for the use intended by Tenant, and hereby disclaims any personal knowledge with respect thereto. Tenant accepts the Premises leased herein "AS IS," in its present condition without any warranty of Landlord whatsoever, express or implied, in fact or by law. Tenant has fully examined the Premises and, Tenant hereby accepts the Premises "As Is" without any representation, warranty or expectation as to the condition of the Premises. 2. Use of Premises. Tenant shall continuously use, operate and occupy the Premises solely for the Permitted Use and for no other use. Tenant shall further not use the Premises in such a manner as to violate any Applicable Law or in violation of the certificate of occupancy issued for the Premises. Tenant shall, on five (5) days written notice from Landlord, discontinue any use of the Premises which is declared by any Governmental Authority to be in violation of any law, certificate of occupancy, covenant, rule, or regulation applicable to the Premises, or which imposes any additional duty upon Tenant or Landlord with respect to the Premises or with respect to the use or occupation thereof, provided that such use may be continued if it can be brought into compliance by Tenant at Tenant's sole cost and expense. Landlord is not responsible for bringing the Premises or any portion thereof into compliance with Applicable Laws. Tenant shall not keep or accumulate any inflammable, polluting, or hazardous materials. 3. Business Hours. Tenant shall continuously operate Tenant's Permitted Use in the Premises and shall keep the Premises open for business during the usual business hours of each and every day and/or as is customary for businesses of like character in Monroe County. If 6 29293920 v6 Tenant fails to operate its Permitted Use within the Premises as set forth in this Section I, such failure shall constitute a default under this Lease. 4. Landlord Access. Landlord and persons authorized by Landlord have the right, at all reasonable times, to enter and inspect the Premises and to make repairs and alterations Landlord deems necessary with reasonable prior notice, except that in an emergency, no prior notice shall be required. J. REPAIRS, MAINTENANCE AND ALTERATIONS 1. Tenant's Maintenance. Tenant shall be responsible for keeping all aspects of the Land, Building and Premises, including maintenance, repair and replacement of all structural and mechanical systems, roof, walls, plumbing, electrical, heating and cooling systems and Tenant's improvements located within the interior of the Premises, parking areas, drive aisles, utilities, retention areas, outdoor areas, landscaping, etc., in good working order, repair and a first-class condition at Tenant's sole cost and expense throughout the Lease Term. Tenant shall, at Tenant's sole cost and expense, cause the Premises to comply, at all times during the Lease Term, with all Applicable Laws and Governmental Authorities, including the American's With Disabilities Act. 2. Landlord's Maintenance. Landlord shall not be responsible for maintaining, repairing or replacing the Land, Building or Premises or any portion thereof. 3. Roof. Tenant agrees that it will not permit or authorize any person to go onto the roof of the Building on the Premises without the prior written consent of Landlord except for normal repair and maintenance of the roof and equipment located on the roof. Said consent will be given only upon Landlord's satisfaction that any repairs necessitated as a result of Tenant's action will be made by Tenant, at Tenant's expense, and will be made in such a manner so as not to invalidate any guarantee relating to said roof. 4. Ste. Except as permitted in the Plans (as may be modified as set forth herein), Tenant shall not place, alter, exhibit, inscribe, point, or affix any sign, awning, canopy, advertisement, notice or other lettering on any part of the outside of the Premises or of the building of which the Premises is a part, or inside the Premises if visible from the outside, without first obtaining the Landlord's written approval thereof. 5. Alterations. a. Plans. Prior to commencing any work or alterations on the Premises ("Tenant's Work"), Tenant shall deliver to Landlord for its approval one (1) set of the plans and specifications of such improvements (the "Preliminary Plans"), fully identifying and describing all structural, mechanical, electrical and plumbing systems, materials, signage, design, colors of exterior paints and other finishes. Landlord shall have a period of ten (10) business days after receipt to approve or reject such submissions. Failure to approve or reject any submissions within such ten (10) day period shall be deemed rejection by Landlord. Upon the rejection or deemed rejection of any submissions, Tenant shall revise the Preliminary Plans to address Landlord's comments and the parties shall follow the foregoing timeframes regarding all further submissions. Approval of submissions by Landlord shall not relieve Tenant from the obligation to obtain all other Approvals required by various Governmental Authorities or from complying 29293920 v6 in all material respects with the Plans and all applicable Laws. Once approved by Landlord as set forth herein, such plans shall be referred to as the "Plans". Any approvals of Landlord attributable to the Plans and/or Tenant's Work will relate only to conceptual matters shown in the materials approved, and not to any design, technical, or compliance matters therein, unless otherwise expressly stated, and Landlord will not be responsible for the completeness or accuracy thereof. Tenant shall cooperate with Landlord in developing the Plans to size all shared utilities so that such utilities can serve Landlord's adjacent lands. b. Preconditions to Commencins_� Construction. Tenant shall construct Tenant's Work in accordance with the terms of this Lease and Plans approved by Landlord. Tenant shall not commence Tenant's Work until Tenant has satisfied all of the following conditions: i. If Tenant is obtaining financing for any portion of Tenant's Work, Tenant has provided to Landlord: (1) a copy of a non -contingent financing commitment from an institutional lender; (2) a written certification from Tenant that the financing commitment is in full force and effect and Tenant is in full compliance with all of the terms and conditions thereof; and (3) such further subordination or other lender agreements as shall be required by Landlord in its discretion. ii. Tenant has provided to Landlord written evidence that Tenant has sufficient funds available to it to complete Tenant's Work. iii. Landlord has approved the Plans. iv. Tenant has provided to Landlord copies of all Approvals required by all applicable Governmental Authorities to construct Tenant's Work (except for any Approvals that will be obtained upon completion.) V. Tenant shall require any architects, engineers, contractors, subcontractors, specialists and consultants engaged in connection with the construction of the Building to perform their respective obligations under the terms of the Plans and to be licensed in accordance with the Laws of the State of Florida. vi. Tenant has obtained, and has caused its general contractors, construction managers, architects and subcontractors to obtain, the insurance in amounts and of type reasonably approved by Landlord and as required by Applicable Law and has delivered to Landlord certificates (or certified copies of policies, if requested by Landlord) evidencing such insurance naming Landlord as an additional insured. C. Construction Accordinc to Approved Plans. Tenant shall commence and pursue the Tenant's Work in accordance with the Plans. All construction activities must be coordinated with the appropriate Landlord representatives. Landlord reserves the right to monitor the construction, from its inception to its completion, including participation in all construction meetings contemplated by the Plans. Tenant shall protect all work and shall at all times keep and cause its contractors to keep the construction site reasonably clean and free from waste materials and rubbish. 29293920 v6 d. Quality of Materials and Construction. All building materials for the Building must be new and of good quality in accordance with the Plans. All construction will be performed in a good and workmanlike manner and only by contractors and subcontractors which are properly licensed in the State of Florida to perform their respective work. e. ComMetion of Improvements. Tenant's failure to comply with the requirements of any schedule of performance agreed between Landlord and Tenant and to complete the construction as soon as commercially practicable (subject to Force Majeure) shall be deemed to be a material default under this Lease, and Landlord shall have the right to pursue any and all of its remedies as set forth herein and any and all of its rights and remedies at law and in equity. The improvements shall be complete when Tenant shall have delivered to Landlord all of the following: i. a certification from Tenant's architect in form and substance reasonably satisfactory to Landlord that the construction has been performed (with the exception of minor punch list items and insubstantial details of construction, mechanical adjustment or decoration) in accordance with the applicable Plans approved by the Governmental Authorities and Landlord, and in accordance with this Lease and Landlord delivers its reasonable written approval of such certification to Tenant; ii. all Approvals required by law to be issued in connection with the construction including any Certificate of Occupancy iii. an executed estoppel certificate in the form prescribed by Landlord and reasonably acceptable to Landlord in substance; iv. a complete list of the names, addresses, telephone numbers and contract amounts for all contractors, subcontractors, vendors and/or suppliers providing materials and/or labor for Tenant's Work; V. all mechanics' lien releases or other lien releases on account of Tenant's Work which are notarized, unconditional, in recordable form, and otherwise in such form as Landlord shall have approved; vi. copies of all building permits, indicating inspection, approval and closure by the issuer of said permits; and vii. a complete set of "as built" plans and specifications for Tenant's Work in auto -CAD format; and viii. one complete set of operations and maintenance manuals for all systems, equipment, furniture and fixtures relating to the Premises. f. Liens Subordinate to Landlord. Tenant shall not create or permit to be created or to remain, and shall promptly discharge, any lien, encumbrance or charge levied on account of any mechanic's, laborer's, or materialman's lien which might or does constitute a lien, encumbrance or charge upon the Premises, or any part thereof, or the income therefrom, having a priority or preference over or ranking on a parity with the estate, rights or interest of Landlord in 9 29293920 v6 the Premises or any part thereof, or the income therefrom. Nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to the filing of any lien against the Premises by any contractor, subcontractor, laborer, materialman, architect, engineer, or other Person for the performance of any labor or the furnishing of any materials or services for or in connection with the Premises or any part thereof. LANDLORD HEREBY NOTIFIES ALL MECHANICS, MATERIALMEN AND OTHER LIENORS THAT PURSUANT TO FLORIDA STATUTES § 713.10, ANY LIENS UNDER FLORIDA STATUTES CH. 713 SHALL EXTEND TO, AND ONLY TO, THE RIGHT, TITLE AND INTEREST OF THE PERSON WHO CONTRACTS FOR THE IMPROVEMENT IN QUESTION AND THAT NEITHER THE INTEREST OF LANDLORD NOR ANY SUPERIOR INTEREST IN THE PREMISES OR ANY OTHER PORTIONS OF THE BUILDING AND LAND OF WHICH THE PREMISES ARE A PART SHALL BE SUBJECT TO LIENS FOR ANY IMPROVEMENTS, SERVICES OR MATERIALS MADE BY, CONTRACTED FOR OR OTHERWISE AUTHORIZED BY TENANT OR BY ANY EMPLOYEE, CONTRACTOR OR AGENT OF TENANT. Tenant agrees that Tenant shall notify the contractor of the foregoing provisions prior to contracting for any improvements, services or materials to be made in or delivered to the Premises. The foregoing provision relates to Tenant's construction of Tenant's Work and any other improvement or alternation constructed by or on behalf of Tenant. g. Title to the Improvements. The title to the Building and all improvements now or hereafter located on the Premises, including those to be constructed in accordance with the Plans, shall be vested in Landlord. h. Compliance with Laws. Tenant shall, at its sole cost and expense, comply and cause its contractors and subcontractors to comply in all material respects with all Applicable Laws of all Governmental Authorities which may now or hereafter, from time to time, be established and which are or shall be applicable to Tenant or Landlord as they relate to the Premises and shall take, as otherwise provided herein, all action necessary to cause the Premises to comply in all material respects with all provisions of the Plans, this Lease and the ROW Lease. K. INDEMNITIES Except for losses, damages and claims arising from the willful misconduct of Landlord or Landlord's agents, contractors and/or employees, Tenant hereby releases, indemnifies and holds harmless Landlord from and against any and all claims, demands, charges, fines, penalties, liens, causes of action, and proceedings, of every kind and nature arising from Tenant's use of the Premises during the Lease Term, or from the conduct of Tenant's business during the Lease Term, or from any direct or indirect activity, work or things done by Tenant in or about the Premises during the Lease Term, and shall further indemnify and hold harmless Landlord from and against any and all claims or proceedings arising from any breach or default in the performance of any obligations on Tenant's part to be performed under the terms of this Lease, or arising from any negligence of the Tenant; and in case any action or proceeding is brought against Landlord by reason of the foregoing, Tenant, upon notice from Landlord, shall defend Landlord at Tenant's expense by counsel approved by Landlord. The foregoing indemnifications 10 29293920 v6 shall include a reimbursement of all attorneys' fees and costs incurred by the Landlord. The foregoing provisions shall survive the expiration or earlier termination of this Lease. L. DAMAGE AND DESTRUCTION Except as otherwise specifically provided herein, damage to or destruction of any portion or all of the Premises or other improvements located upon the Premises, by fire, the elements or any other cause whatsoever, whether with or without fault on the part of Tenant, shall not terminate this Lease or entitle Tenant to surrender the Premises or entitle Tenant to any abatement of or reduction in the Rent payable, or otherwise affect the respective obligations of the parties hereto, any present or future law to the contrary notwithstanding. If the Premises are damaged by fire or other casualty and the cost of repair or replacement exceeds twenty-five percent (25%) of the replacement value of the Premises, Landlord may elect to terminate this Lease within ninety (90) days of such casualty. If Landlord elects to terminate, then Landlord shall be entitled to retain (or if maintained by Tenant, Tenant shall assign to Landlord) the insurance proceeds of the Premises and Building improvements, and Tenant shall be entitled to retain its insurance proceeds for Tenant's furnishings, trade fixtures and equipment, if any. If Landlord does not elect to terminate as set forth herein, the cost of repair or replacement is less than twenty-five percent (25%) of the full replacement cost of the Premises, then subject to the rights of Landlord's mortgagee, Rent shall not abate, the Lease shall continue in full force, and Tenant shall promptly repair the Premises, substantially to its original condition, and the parties shall follow the provisions of Section J 5 with respect to such repairs and further subject to the rights of Landlord's mortgagee, if any. M. ASSIGNMENT AND SUBLETTING 1. Subletting. Tenant may not sublet the Premises or any part thereof, without the Landlord's prior written consent, which consent may be withheld in Landlord's sole and absolute discretion; provided, however, that regardless of any such sublease approved by Landlord, Tenant shall remain fully liable for the performance of all of the conditions, covenants and obligations of this Lease. Any and all approved subleases entered into by Tenant shall be made expressly subject to this Lease and all of the terms and provisions hereof. Tenant shall provide Landlord with all copies of such approved subleases. 2. Assignment. Tenant may not assign its interest in this Lease without the Landlord's prior written consent, which consent may be withheld in Landlord's sole and absolute discretion; provided, however, that regardless of any such assignment Tenant shall remain fully liable for the performance of all of the conditions, covenants and obligations of this Lease. Tenant shall provide Landlord with a copy of any such approved assignment. Landlord shall have the right to assign this Lease without Tenant's consent. N. EMINENT DOMAIN 1. Condemnation Award. In the event the Premises or any part thereof shall be taken or condemned either permanently or temporarily for any public or quasi -public use or purpose by any authority in appropriate proceedings or by any right of eminent domain, the entire compensation award therefor shall belong to Landlord, without any deduction therefrom 11 29293920 v6 for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, title, and interest to any such award. Tenant shall have the right to recover such compensation as may be awarded on account of the value of moving and relocating expenses, so long as such award does not diminish the Landlord's award. 2. Rights of Termination. In the event of a taking or condemnation of more than twenty-five percent (25%) of the Premises or Land, Landlord shall have the right to terminate this Lease by notice in writing given within thirty (30) days after the condemning authority takes possession or is scheduled to take possession, in which event the Lease shall terminate effective as of the date of possession without further liability on the part of either Landlord or Tenant except for those obligations which expressly survive the expiration or termination of the Lease. 3. Restoration. In the event of a taking of any portion of the Premises which does not result in a termination of this Lease, Landlord shall use as much of the proceeds of Landlord's award as is required to restore the Building and this Lease shall continue in effect with respect to the balance of the Premises, with an equitable reduction of Rent in proportion to that portion of the Premises taken. O. DEFAULT AND REMEDIES Default b Tenant. Tenant shall be in default under this Lease if: a. Tenant fails to pay any installment of Rent within five (5) days of the date when the same is due. b. Tenant breaches any other conditions, stipulations, or agreements contained herein on the part of Tenant to be kept and performed and such breach continues for thirty (30) days after Tenant receives written notice from Landlord specifying its breach. C. If an involuntary petition is filed against Tenant under any bankruptcy or insolvency law or under the reorganization provisions of any law of like import or if a receiver of Tenant, or of all or substantially all of the property of Tenant, is appointed without acquiescence, and such petition or appointment is not discharged or stayed within sixty (60) days after the happening of such event. d. If Tenant makes an assignment of its property for the benefit of creditors or files a voluntary petition under any bankruptcy or insolvency law, or seeks relief under any other law for the benefit of debtors. 2. Landlord's Remedies. In the event of Tenant's default of any of Tenant's obligations under this Lease, Landlord may, at Landlord's option and without limiting Landlord in the exercise of any other rights or remedies which Landlord may have at law or in equity by reason of such default or breach, with or without notice or demand: i. To the extent permitted by applicable law, reenter the Premises and take possession of the same and expel or remove Tenant and all other parties occupying the 12 29293920 v6 Premises, using such force as may be necessary to do so, without being liable to any prosecution for such reentry, and without terminating this Lease, at any time and from time to time, to relet the Premises or any part thereof for the account of Tenant, for such term, upon such conditions and at such rental as Landlord may deem proper. In such event, Landlord may receive and collect the rent from such reletting and apply it against any amounts due from Tenant. Such amounts due include, without limitation, such expenses as Landlord may have incurred in recovering possession of the Premises, placing the same in good order and condition, altering or repairing the same for reletting, and all other expenses, commission and charges, including attorney's fees, which Landlord may have paid or incurred in connection with such repossession and reletting. Landlord may execute any lease made pursuant hereto in Landlord's name or in the name of Tenant as Landlord may see fit, and the tenant thereunder shall be under no obligation to see to the application by Landlord of any rent collected by Landlord, nor shall Tenant have any right to collect any rent thereunder. Whether or not the Premises are relet, Tenant shall pay Landlord all amounts required to be paid by Tenant up to the date of Landlord's reentry, and thereafter Tenant shall pay Landlord, until the end of the Lease Term hereof, the amount of all Rent and other charges required hereunder, less the proceeds of such reletting. Such payments by Tenant shall be due at such times as are provided elsewhere in this Lease, and Landlord need not wait until the termination of this Lease to recover them by legal action or otherwise. Landlord shall not, by any reentry or other act, be deemed to have terminated this Lease or the liability of Tenant for the total Rent hereunder unless Landlord shall give Tenant written notice of Landlord's election to terminate this Lease. ii. Give written notice to Tenant of Landlord's election to terminate this Lease, reenter the Premises and take possession of the same and expel or remove Tenant and all other parties occupying the Premises. iii. Accelerate the whole balance of Rent, and all other sums payable hereunder by Tenant, for the entire balance of the Lease Term, or any part of such Rent and other sums, reduced to present value using a discount rate of 6%. iv. Bring suit for the collection of Rent, for other sums due hereunder and for damages without entering into possession of the Premises or terminating this Lease. V. Recover Landlord's costs and attorneys' fees whether incurred before, during, or after any trial, mediation, arbitration, or appeal. 3. Default by Landlord. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within thirty (30) days after written notice by Tenant to Landlord specifying the obligations(s) which Landlord has failed to perform; provided, however, that if the nature of Landlord's obligation is such that more than such thirty (30) days are required for performance, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. Anything in this Lease to the contrary notwithstanding, Landlord shall have no personal liability for any damages resulting from its default under the terms of this Lease, and Tenant agrees that it shall look solely to the estate and property of the Landlord in the land and Premises and any insurance proceeds or condemnation awards belonging to Landlord in connection with any casualty or condemnation to the Premises, and, only in the event that 13 29293920 v6 Landlord sells, transfers or otherwise conveys or leases the Premises, Tenant may look to the proceeds of such sale or such lease (subject to the prior rights of any mortgagee of the land and Premises), or any part thereof, for the collection of any judgment requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to any of the terms, covenants and conditions of this Lease to be observed and/or performed by Landlord, and no other assets of the Landlord shall be subject to levy, execution or other procedures for the satisfaction of Tenant's remedies. 4. Failure to Exercise Rights. No delay or omission by Landlord to exercise any right or power accruing upon any noncompliance or default by Tenant with respect to any of the terms hereof shall impair any such right or power or be construed to be a waiver thereof. A waiver by Landlord of any of the covenants and agreements hereof to be performed by Tenant or Landlord shall not be construed to be a waiver of any subsequent breach thereof or of any covenant or agreement herein contained. P. NOTICES 1. Proper .Notice. Any notice or consent required to be given by or on behalf of either party to the other must be given in writing to Landlord and Tenant at their respective addresses below and shall be deemed given and effective: (a) upon signed receipt if personally delivered; or (b) upon signed receipt of a notice (or refusal to sign or accept such notice) sent by certified or registered mail, return receipt requested and postage prepaid; or (c) upon signed receipt of a notice (or refusal to sign or accept such notice) sent by a nationally recognized overnight courier that provides verification of receipt. Landlord shall not mail or deliver any notice or consent to the Premises and notice delivered to the Premises shall not be effective notice under this Lease. Although Landlord's and Tenant's addresses may contain facsimile information, such information is provided for informational purposes only and notice by facsimile shall not be effective notice. Landlord: 101 S. 12t' Street, Suite 102 Tampa, FL 33602 Attn: Mark Gerenger With a copy to: Burr & Forman LLP 50 North Laura Street, Suite 3000 Jacksonville, FL 32202 Attn: Chris R. Strohmenger Tenant: 125 Milano Dr. Islamorada, FL 33036 Attn: Sam Nekhalia 14 29293920 v6 2. Chan�_,e of Address. Either party may change its address at any time by providing written notice of its new address in accordance with this Section P. Q. SUBORDINATION AND ESTOPPELS 1. Subordination. This Lease is expressly subordinate and inferior to the lien of any present or future mortgage of Landlord against the Premises. Tenant agrees to execute and deliver from time to time subordination agreements in such form as the lender may reasonably require. Landlord is hereby irrevocably vested with full power and authority to subordinate this Lease to any mortgage, deed of trust or other lien now existing or hereafter placed upon the Premises. In the event of foreclosure, or conveyance by deed in lieu of foreclosure, or in the event Landlord sells, conveys or otherwise transfers its interest in the Premises or any portion thereof, provided Tenant is not in default hereunder, this Lease shall remain in full force and effect and Tenant shall attom to the new owner. Tenant agrees upon demand to execute such further instruments subordinating this Lease or attorning to the holder of any such liens as Landlord may request. In the event that Tenant should fail to execute any instrument of subordination herein required to be executed by Tenant promptly as requested, Tenant hereby irrevocably constitutes Landlord as its attorney -in -fact to execute such instrument in Tenant's name, place and stead, it being agreed that such power is one coupled with an interest. Tenant agrees that it will from time to time upon request by Landlord execute and deliver to such persons as Landlord shall request a statement in recordable form certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as so modified), stating the dates to which rent and other charges payable under this Lease have been paid, stating that Landlord is not in default hereunder (or if Tenant alleges a default stating the nature of such alleged default) and further stating such other matters as Landlord shall reasonably require. 2. Estoppel Certificate. From time to time, Tenant, on not less than ten (10) days' notice, will execute and deliver to Landlord an estoppel certificate (i) in a form generally consistent with the requirements of institutional lenders; (ii) in a form approved by Landlord's prospective mortgagee or prospective purchaser of the Premises; and (iii) certified to Landlord and any mortgagee or prospective mortgagee or purchaser of the Premises. Tenant indemnifies, defends, and holds Landlord harmless from all damages resulting from Tenant's failure to comply strictly with its obligations under this Section Q. R. COVENANT OF QUIET ENJOYMENT Landlord hereby covenants that if Tenant shall perform all the covenants and agreements herein stipulated to be performed on Tenant's part, Tenant shall at all times during the continuance hereof have quiet enjoyment of the Premises without hindrance from any person, subject, nevertheless, to the terms of this Lease and to any mortgage or agreements to which this Lease is subordinated and covenants, conditions, restrictions and encumbrances prior to the date of this Lease. S. ENVIRONMENTAL MATTERS —NO HAZARDOUS MATERIALS 15 29293920 v6 1. No Hazardous Materials. Tenant shall not use or permit the use of the Premises for the generation, storage, treatment, use, transportation, handling or disposal of any chemical, material or substance which is regulated as toxic or hazardous or exposure to which is prohibited, limited or regulated by any governmental authority, or which, even if not so regulated, may or could pose a hazard to the health or safety of persons on the Premises, and no such chemical, material or substance shall be brought unto the Premises without the Landlord's express written approval. Tenant agrees that it will at all times observe and abide by all laws and regulations relating to the handling of such materials and will promptly notify Landlord of (a) the receipt of any warning notice, notice of violation, or complaint received from any governmental agency or third party relating to environmental compliance and (b) any release of any hazardous materials on the Premises. Tenant shall carry out, at its sole cost and expense, any remediation required as a result of the release of any hazardous substance by Tenant or by Tenant's agents, employees, contractors, invitees, assignees or subtenants on or from the Premises. Notwithstanding the foregoing, the Tenant shall have the right to bring on to the Premises reasonable amounts of cleaning materials and the like necessary for the operation of the Tenant's business (so long as Tenant's use of such solutions and chemicals is in accordance with applicable governmental regulations), but Tenant's liability with respect to such materials shall be as set forth in this Section S. 2. Indemnification. Tenant agrees to indemnify and save the Landlord harmless from all liability, costs and claims, including reasonable attorneys' fees, resulting from any environmental contamination on the Premises caused during the Lease Term by Tenant or its agents, contractors, employees, invitees, assignees or subtenants, including the cost of remediation and defense of any action for any violation of the provisions of this Section S. 3. Survival. The provisions of this Section S shall survive the termination of this Lease. T. LANDLORD'S RIGHT TO TERMINATE; RELOCATION Intentionallv deleted 2. IntentionalIv deleted 3. Termination if ROW Lease Terminates. In the event the ROW Lease is terminated by Monroe County, Florida, Landlord shall have the right, upon written notice to Tenant, to terminate this Lease effective as of the date set forth in Landlord's written notice. Upon such termination of the Lease, Tenant shall vacate the Premises (but Tenant shall not be entitled to remove any fixtures, equipment or Tenant improvements). 4. Right to Relocate. Landlord shall have the right to relocate Tenant to other comparable space on the Land or on the property adjacent to the Land owned or controlled by Landlord or Landlord's affiliates ("Substitute Premises"). The amount of Base Rent per square foot as set forth herein shall apply to the Substitute Premises; provided that such Base Rent shall abate until the Substitute Premises is completed and delivered to Tenant for occupancy. Landlord shall have the right to cause Tenant to cease operations and vacate the Premises for a maximum of three (3) months or until the Substitute Premises is ready for occupancy, whichever 16 29293920 v6 is earlier by delivering written notice to Tenant, identifying the date of such vacation and the location of the Substitute Premises. In such event, Landlord and Tenant shall execute a lease amendment or a new lease evidencing such agreement. Thereafter, Landlord shall pay all reasonable costs to move Tenant's then existing equipment, trade fixtures, inventory and personal property to the Substitute Premises. U. MISCELLANEOUS PROVISIONS 1. Broker's Commissions. Landlord and Tenant hereby represent and warrant to each other that there are no brokers involved in this transaction nor any claims for brokers' commissions or finders' fees in connection with the execution of this Lease, and Landlord and Tenant agree to indemnify and save the other harmless from any liability that may arise from such claims, including reasonable attorneys' fees. 2. Surrender and Holding Over. At the expiration of the Lease Term or any extension of the Lease Term or any earlier termination of the Lease Term, Tenant agrees to quit and surrender the possession of the Premises to Landlord in good order, condition and repair, reasonable wear and tear and damage that Tenant is not obligated under the terms of this Lease to repair excepted. All lighting fixtures, fixtures, light poles, flooring, landscaping, cabinets, plumbing fixtures, ceiling tiles, HVAC duct work, HVAC vents, all other HVAC related equipment, curb stops, monument or pylon signs and other improvements to the Premises, whether or not installed by Tenant, shall not be removed at the expiration or earlier termination of this Lease and shall become the property of Landlord. Any holding over by Tenant after expiration of the Lease Term hereof or any extension or termination thereof shall be construed as a tenancy from month to month, subject to all the conditions of this Lease and at the rental rate that is two (2) times the rental rate of the last month of rent that Tenant paid. Either party may terminate such month to month tenancy by giving to the other thirty (30) days' written notice of its intention to terminate. The provisions of this paragraph do not affect Landlord's right of reentry or of any other rights of Landlord hereunder or as otherwise provided by law. 3. Recording. Subject to the terms and conditions of the ROW Lease, a memorandum of this Lease shall be recorded in the public records. 4. Severabili! . In the event that any provision or section of this Lease is rendered invalid by the decision of any court or by the enactment of any law, ordinance or regulation, such provision of this Lease shall be deemed to have never been included therein, and the balance of this Lease shall continue in effect in accordance with its terms. 5. Attornevs' Fees. In the event of any legal proceeding arising out of a dispute among Landlord and Tenant with regard to enforcement of any provision of this Lease, the substantially prevailing party will be entitled to an award of its reasonable attorneys' fees, costs and expenses from the substantially non -prevailing party. In addition, in the event it shall be reasonably necessary for either Landlord or Tenant to appear in a bankruptcy, foreclosure or mechanics' lien proceeding affecting the Premises as a result of the circumstances, actions or inactions of the other party, the appearing party shall be entitled to recover its reasonable attorneys' fees, costs and expenses from the party whose circumstances, actions or inactions necessitated the appearance. To the extent any such attorneys' fees are not paid within thirty 17 29293920 v6 (30) days following receipt of an invoice therefore, the party incurring such costs shall be entitled to add or offset the fees, costs and expenses to/against Rent or other amounts owing by such party, as the case may be. 6. Jury Trial. In the event of a dispute, Landlord and Tenant agree to waive the right to jury trial. 7. Force Majeure. Force Majeure shall mean delays caused by any governmental or quasi -governmental entity; shortages of materials, natural resources or labor; fire; catastrophe; labor strikes; civil commotion; riots; war; acts of God; governmental prohibitions or regulations including administrative delays in obtaining building permits, certificates of occupancy or their equivalents; inability to obtain materials; or any and all other extraordinary causes (but not including financial inability). If an event of Force Majeure occurs, neither party shall have any liability to the other for non-performance of the affected provision of this Lease. Neither party shall be in default under this Lease for failure to perform due to Force Majeure. If an event of Force Majeure occurs, the period of time Landlord or Tenant has for performance as provided in this Lease shall be extended one day for each day performance is delayed by such event of Force Majeure. The provisions of this Section U.7 shall apply to each and every provision of this Lease, regardless of whether any specific provision makes reference to Force Majeure delays. 8. No Partnershir�. Landlord and Tenant do not, in any way or for any purpose, become partners in the conduct of their respective businesses by virtue of this Lease. 9. Section Headings. Section headings are inserted only as a matter of convenience and for reference and in no other way define, limit, or describe the scope or intent of this Lease or in any way affect the meaning of this Lease. 10. Lease Inures to the Benefit of Assignees; rvNo Third Party Beneficiaries. This Lease and all of the covenants, provisions, and conditions herein contained shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns respectively, of the parties hereto, provided, however, that no assignment by, from, through, or under Tenant in violation of the provisions hereof shall vest in the assigns any right, title, or interest whatsoever, and no assignment by Landlord shall be valid unless such assignment is made to the then current fee simple owner of the Premises. There are no intended third party beneficiaries of this Lease. 11. No Presumption Against Drafter. Both parties have freely negotiated this Lease. In any controversy, dispute, or contest over the meaning, interpretation, validity, or enforceability of this Lease or any of its terms or conditions, there shall be no inference, presumption, or conclusion drawn whatsoever against either party by virtue of that party having drafted this Lease or any portion thereof. 12. Authority to Si ,n Lease. Tenant represents that this Lease has been duly authorized by all required corporate, partnership or limited liability company action, as applicable, and that the individuals executing this Lease on behalf of Landlord and Tenant, respectively, have been duly authorized to do so. 18 29293920 v6 13. Entire A�,reement. This Lease and the exhibits attached hereto set forth all the covenants, promises, agreements, conditions, and understandings between Landlord and Tenant concerning the Premises, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than as herein set forth. No subsequent alteration, amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by duly authorized officers or other duly authorized representatives of both parties. 14. Radon Gas Disclosure. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 15. Incorporation bit Reference. All exhibits, schedules and attachments to this Lease referred to in this Lease are incorporated into this Lease by reference and made a part of this Lease. 16. Guaranty. To induce Landlord to enter into this Lease, Sam Nekhaila ("Guarantor"), has agreed to serve as guarantor of Tenant's liabilities and obligations hereunder for the Term, which guarantor obligations shall be as set forth pursuant to the Guaranty. Guarantor's execution of the Guaranty is hereby made an express condition precedent to Landlord's obligations under this Lease. 17. Bankruptcy_. If, during the Term, Tenant or any Guarantor hereunder is or becomes a party to a proceeding seeking protection under or involving protection under the federal bankruptcy laws or state laws dealing with insolvency, whether voluntarily or involuntarily, or otherwise commits or permits to be committed any act of bankruptcy or insolvency, Landlord may at its election terminate this Lease by giving not less than three (3) days written notice to Tenant and, when so terminated, Landlord may reenter the Premises in accordance with applicable law, and the Premises and leasehold interest created by this Lease shall not be treated as an asset of Tenant's or Guarantor's estate. It is further understood and agreed that Landlord shall be entitled, upon such reentry, notwithstanding any other provisions of this Lease, to exercise all of Landlord's rights and remedies and to recover from Tenant or any Guarantor all damages, including without limitation damages for loss of the bargain resulting from such breach, such amounts as are provided for herein, unless any statute or rule or law governing a proceeding in which such damages are to be proved shall lawfully limit the amount of such claims capable to being so proved, in which case Landlord shall be entitled to recover as liquidated damages, and not as a penalty, the maximum amounts which may be allowed under such statute or rule or law. 18. Mold. Mold (mildew) is a common, naturally occurring organism that grows indoors and outdoors. Mold may produce adverse health effects although the scientific evidence is unclear as to the extent of health risk or the amount of mold necessary to cause health impact. Modern building codes, practices and materials provide living space that is energy efficient. However, this energy efficiency has a result of minimizing air flow into or out of the building. Some buildings do not "breathe" like other buildings and are therefore 19 29293920 v6 more susceptible to mold growth when the building air is not conditioned. However, all buildings are susceptible to mold growth. Landlord makes no representation to Tenant concerning the presence or absence of mold or mildew in the Premises at any time or in any quantity. V. CONSTRUCTION 1. Redevelopment Project. During the Term of the Lease, Tenant acknowledges that Landlord may, but shall not be obligated to, redevelop the Land, Building and/or the Premises or any portion thereof (such redevelopment being referred to as the "Project"). In the event Landlord elects, in its sole and absolute discretion, to construct such Project, and such Project shall require Tenant to vacate the Premises, Landlord shall provide written notice to Tenant of the date on which Landlord intends to commence the Project (such date being referred to as the "Vacation Date"). Tenant shall vacate the Premises on or before the Vacation Date, and Rent due hereunder shall abate in full commencing on the Vacation Date until the Delivery Date (as defined below). Thereafter, Landlord shall construct the Project in accordance with the procedures set forth herein. In the event that the restaurant must be closed for remodeling by the Landlord, all Rent shall abate until the completion of the remodeling. 2. Construction. a. Construction According to Amiroved Plans. Landlord shall commence and pursue any redevelopment of the Project at Landlord's sole cost and expense and in accordance with plans prepared by Landlord and approved by the applicable governmental agencies (the "Project Plans"). b. ( uality of Materials and Construction. All construction will be performed in a good and workmanlike manner and only by contractors and subcontractors which are properly licensed in the State of Florida to perform their respective work. C. Completion of Construction. Landlord shall use commercially reasonable efforts to substantially complete the Project as soon as commercially practicable following commencement of construction. The Premises will be deemed delivered to Tenant for its occupancy upon receipt of a Certificate of Occupancy issued by the applicable building department where the Premises is located, which date of delivery is hereinafter referred to as the Delivery Date. d. Tenant's Pre-Oi-)enin;g Obligations. Immediately following the Delivery Date, Tenant shall use all commercially reasonable diligence to complete all employee training, purchase all inventory and to have the Premises ready to open for business no later than thirty (30) days after the Delivery Date. e. Title to the Imuovements. The title to all improvements now or hereafter located on the Premises, including those to be constructed for the Project in accordance with the Project Plans, shall be vested in Landlord. f. Compliance with Laws. Landlord shall, at its sole cost and expense, comply and cause its contractors and subcontractors to comply in all material respects with all 20 29293920 v6 applicable laws of all governmental authorities which may now or hereafter, from time to time, be established and which are or shall be applicable to Landlord or Tenant as they relate to the Premises and shall take, as otherwise provided herein, all action necessary to cause the Premises to comply in all material respects with all ««:<i©° of the Project Plans and this Lease applicable to Landlord. a"ITMIN M It M X FUTURE NEGOTIATIONS; TFRMINATION OF PRIOR LEASE 21 29293920 v6 IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be signed as of the date and year first above written. Witnesses: Name: 59N1i�� L. r trpte STATE OF COUNTY "LANDLORD" KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company By: ,-6/�1 Name: Title: nocoCkqjA-z46=61�—� Date: �qj ja 1-7 Landlord's Acknowledgment ) SS. The foregoing instrument was acknowledged before me a Notary Public, this /a '6�3' day of la 1 L 12017, by o the of KtY MARINA DEVELOPMENT, LLC, a Florida lim ed liability cot9pany, on behalf of the company. He/She (circle one) • is personally known to me or • produced a valid driver's license as identification. Notary Public, State and County resaid Q� = DEE H. KIRBY• NOtuy Public - State of FlorWi ' F MY Comm. ExpWas Aug a; 2017 .. .a , Cororaiale # Ff 4410*?' 29293920 v6 Name: DAL 0 •�-b �( My Commission Expires: 8/ 01-7 My Commission Number is: F-V-Q 41 D 31 22 Witnesses: Name: STATE OF "TENANT" FLORIDA KEYS QUALITY FOODS.4NC., a Florida corporation J/ By: _ Name: Title: Date: Tenant's Acknowledument ) SS. COUNTY Tli• for ig instrument was acknowled d before e, a otary Publi this "J I ' , ct the N,��t b ay of V . . ..... . ..... - — ----- ----- . .. . ... ..... --�2017,byTOMM-ek._i OL Aj - o F ORIDA KEYS QUALITY I D"S! I a Florida corpor ation, on behalf of the corporation. He/She (circle one) Ily known v me or - prod iced a valid driver's personally license as identification. NotaryVublic, State and Couky Aforesaid MINERVASOTO M MY COMMISSION # FIF 177477 y f Bonded EXPIRES: March 18, 2019 onded Thru Notary Public Unden'"4111 de Name: My Commission Expires: My Commission Number is: 3—,(3,�2,01, 1 23 29293920 v6 EXHIBIT A LEASE GUARANTY . . THIS LEASE GUARANTY (this "Guaranty"), is made as of the day o1 _ 2017 (the "Effective Date"), by SAM NEKHAILA, an individual ("Guarantor"), as consideration for and in order to induce KEY MARINA DEVELOPMENT, LLC, a Florida limited liability company, its successors and assigns ("Landlord"), to enter into a lease (the "Lease") of a certain premises located at 80 E. 2nd Street, Key Largo, FL 33037 (the "Premises"), with FLORIDA KEYS QUALITY FOODS, INC., a Florida corporation, as tenant ("Tenant"), hereby agrees as follows: 1. Capitalized Terms. All capitalized terms not defined herein shall have the meaning accorded them in the Lease, a true and correct copy of which Guarantor hereby acknowledges receipt. 2. Obligations. Commencing on the Effective Date of the Lease and continuing until the end of the Lease Term (as may be renewed or extended) (the "Guaranty Term"), Guarantor guarantees unconditionally to Landlord the punctual payment, performance and observance of all monetary (including the payment of all Rent, Additional Rent and any other payments due and payable under the Lease) and non -monetary obligations, covenants, conditions and agreements required to be observed and performed or paid or reimbursed by Tenant pursuant to the Lease during the Guaranty Term (collectively, the "Obligations"). Upon expiration of the Guaranty Term, this Guaranty shall automatically terminate and shall no longer be of any force or effect, except as to any defaults under the Lease that arose during the Guaranty Term, for which Guarantor shall remain liable under this Guaranty. 3. Unconditional Guaranty. The Obligations are unconditional. The Obligations, and this Guaranty, will remain in full force and effect without regard to any circumstances or conditions, including any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Lease or otherwise or the failure of Landlord to assert any claim or demand, or to enforce the Lease or any right or remedy available to Landlord under the Lease, against Tenant under the Lease or any other agreement; any extension or renewal of the Lease or any other agreement; any rescission, waiver, amendment or modification of the Lease or any other agreement; the release of any security held by Landlord under the Lease; any transfer by Landlord or Tenant in respect of the Lease or any interest in the Premises, including without limitation any assignment of the Lease by Tenant or any sublease of all, or a portion of, the Premises whether or not Guarantor receives notice and or has consented to such assignment or sublet; any transfer by Guarantor of any interest in or control of Tenant; any bankruptcy or similar proceeding involving Landlord or Tenant; and failure of Landlord to exercise any right or remedy against any other guarantor of the Lease. 4. Waiver. Guarantor agrees that this Guaranty constitutes a guaranty of payment and performance when due and not just of collection. Guarantor waives presentment and demand for payment, notice of non-payment or non-performance, and any other notice or demand to 24 29293920 v6 which Guarantor might otherwise be entitled to receive. GUARANTOR ALSO WAIVES TRIAL BY JURY OF ALL ISSUES ARISING IN ANY ACTION TO WHICH LANDLORD AND GUARANTOR MAY BE PARTIES IN CONNECTION WITH THIS GUARANTY. Landlord shall not be required to resort to any other person or entity or to any security for payment or performance of any part of the Lease or to any advance rent, or to any deposit, account, credit or offset on the books of Landlord in favor of Tenant. 5. Joint and Several Liabilii�'. Landlord may, at Landlord's option, proceed against Guarantor and Tenant, jointly and severally, or against Guarantor only without having obtained a judgement against Tenant. Landlord shall not be required to use any security deposit provided to Landlord in accordance with the terms of the Lease before proceeding against or collecting any sums from Guarantor. If there is more than one Guarantor under this Guaranty, Guarantor's obligations and liabilities under this Guaranty are joint and several. Upon payment by Guarantor of any sums to Landlord hereunder, all rights of Guarantor against Tenant arising as a result thereof by way of right of subrogation, indemnification or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full of all obligations under the Lease. 6. Further Assurances and Severability. (a) Guarantor will execute, acknowledge and deliver, at its own expense, all instruments and take all action as Landlord from time to time may reasonably request for ensuring Landlord the full benefits of this Guaranty. (b) If any provision of this Guaranty is to any extent determined by final decision of a court of competent jurisdiction to be unenforceable, the remainder of this Guaranty will not be affected thereby, and each provision of this Guaranty will be valid and enforceable to the fullest extent permitted by law. Landlord's delay in exercising, or the failure to exercise, any right under this Guaranty will not waive such right or any other right of Landlord. All remedies of Landlord by reason of this Guaranty are separate and cumulative and no single remedy, whether or not exercised by Landlord, will exclude any other remedy of Landlord or limit or prejudice any other legal or equitable remedy which Landlord may have. 7. Miscellaneous. (a) If judgment is entered against Guarantor in any action to enforce this Guaranty, Guarantor will reimburse Landlord for all reasonable expenses incurred by Landlord in connection therewith, including reasonable attorneys' fees and disbursements. (b) This Guaranty may not be changed or terminated orally or in any manner other than by a written agreement signed by Guarantor and Landlord. (c) Each reference herein to Landlord shall be deemed to include its heirs, successors and assigns, in whose favor the provisions of this Guaranty shall also inure. Each 25 29293920 v6 reference herein to Guarantor shall be deemed to include its heirs, successors and assigns all of whom shall be bound by the provisions of this Guaranty. (d) This Guaranty will be governed by the laws of the State of Florida. (e) The Paragraph headings appearing herein are for purposes of convenience only and are not deemed to be part of this Guaranty. IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and year first above written. 26 29293920 v6 SITE PLAN OF PREMISES *Outlined in bold 27 29293920 v6 RESTAURANT RIDER This Restaurant Rider (this "Rider") is attached to and made a part of the Lease Agreement. Should the terms contained herein be in conflict with the terms as contained in the Lease, the terms contained in this Rider shall control. 1. Tenant agrees, at Tenant's own cost and expense: (i) to install fire extinguishing devices approved by the local fire insurance rating organization and Landlord's insurance carriers, and to keep such devices in good working order and repair and regularly serviced under a maintenance agreement as may be required by Landlord or by such fire insurance rating organization or carriers; (ii) to install (to the extent not already installed or otherwise existing on the Premises as of the date hereof) a grease guard, exhaust ducts and filters within or outside the Premises and all lines leading thereto, as may be required by Landlord or by governing codes, and to keep and maintain the same (whether located within or outside the Premises) in a clean and sanitary condition and in good working order and repair at no less than three (3) month intervals; (iii) to place and store Tenant's garbage and refuse in containers which shall be kept in a self-contained refrigerated area within the Premises; (iv) and, at no less than three (3) month intervals, cause such trap to be cleaned and the lines therefor to be routed; and (v) to install a deodorizing system acceptable to Landlord (the purpose of which shall be to eliminate odors emanating from the Premises) within Tenant's exhaust system for the kitchen or any other food preparation or cooking area, and to keep and maintain the same in a clean and sanitary condition and in good working order and repair. In the event gas is used in the Premises, Tenant agrees to install a proper gas cut-off valve. If Tenant shall fail to install any such devices referred to in this section and/or to subscribe to the servicing thereof, or maintain the same, all as required herein, Landlord shall have the right to enter upon the Premises to make such necessary installations, servicing or maintenance; and, upon demand, Tenant shall pay to Landlord, as Additional Rent, all charges incurred by Landlord in connection therewith, together with a sum equal to twenty five percent (25%) of said charges for overhead and administration. 2. Tenant shall obtain Landlord's prior written approval to install and maintain any exterior carbon dioxide connections. Any exterior carbon dioxide connections, including exterior fill "bibs", for carbon dioxide shall be in such location as shall be approved by Landlord. All carbon dioxide tanks shall be stored, in a location reasonably agreeable between Tenant and Landlord. 3. Tenant shall maintain, repair, and replace all grease traps and other equipment necessary to maintain any food preparation area in a clean and sanitary manner and free from insects, rodents, vermin, and other pests. No discharge of grease or grease ladened water or other materials or food stuffs shall be introduced by Tenant into the waste water disposal or drainage systems serving the Premises, but if a discharge should occur, in addition to all other rights and remedies under this Lease, Tenant shall be responsible for all costs and expenses (including any fines or penalties imposed by governmental authorities) which Landlord may incur. Tenant shall enter into a service contract with a reputable company approved in writing by Landlord for regular servicing of the grease trap exclusively serving the Premises. Tenant shall provide Landlord with a copy of such service contract. In addition, Tenant shall provide Landlord with evidence that the grease , trap was serviced upon the completion of such service. Grease traps shall be serviced only between the hours of midnight and 7:00 a.m. 28 29293920 v6 4. Tenant shall maintain all exhausts, filtering or other devices (the "Exhaust Equipment") so as to prevent odors from emanating from the Premises. Tenant shall continuously operate the Exhaust Equipment during all hours of operation of Tenant's kitchen in the Premises, and shall maintain and repair (or if necessary, replace) the Exhaust Equipment in good working order at all times at Tenant's sole cost. Tenant shall have the filters in the hoods for food processing exhaust systems removed weekly and washed, and shall have the hoods, exhaust ducts and roof -mounted containment systems cleaned a minimum of once every six (6) months, or as designated by Landlord. In the event Landlord notifies Tenant in writing that odors are emanating from the Premises, Tenant shall, within ten days after notice from Landlord, commence in good faith to install such other reasonable control devices or procedures, at Tenant's cost and expense, as is reasonably required to eliminate such odors within a reasonable time, not to exceed fifteen days. If Tenant fails to take such action, Landlord may, at its sole discretion (i) cure such failure at Tenant's cost and expense, or (ii) treat such failure to eliminate such odors as a default under this Lease. 5. Tenant shall maintain the highest standards in presentation, quality and preparation of food items as a condition for the Lease. 6. Tenant shall comply with all Health Department and other governmental rules and regulations applicable to Tenant's operations in the Premises and shall promptly (a) furnish or cause to be furnished to Landlord copies of all Health Department and other governmental reports, notices, and citations issued with respect to the Premises, and (b) immediately cure or otherwise eliminate all deficiencies and violations noted by the Health Department and other governmental authorities. Tenant shall sanitize the dumpster designated for its use by Landlord and the area surrounding the dumpster on a regular basis determined based on usage. If Tenant does not properly dispose of its refuse, Landlord may have the area cleaned and Tenant shall pay all cleaning charges incurred by Landlord, plus an administrative fee equal to the greater of $50.00 or 20% of the cleaning charges. 29 29293920 v6 M.9.d 50d s . e - ' 'tit 69 el uel ; t , i elep e -see - a,a 61 „tuawLl ett N CV � RIGHT-OF-WAY LEASE AGREEMENT a. THIS RIGHT-OF-WAY LEASE AGREEMENT ("LEASE"), made and entered into by the parties this day of , 2017, by and between the MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040, ("LESSOR") and KEY MARINA DEVELOPMENT, LLC. a Florida limited liability company, whose principal address is 52 Riley Road Unit 155, Celebration, Florida 34747 ("LESSEE") and FLORIDA KEYS QUALITY FOODS, INC., whose principal address is 125 Milano Drive, lslamorada, Florida 33036, ("SUB -LESSEE"). WITNESSETH: WHEREAS, the County owns the public right-of-way along Second Avenue in Key Largo, Monroe County, Florida; and WHEREAS, there exists an historic encroachment upon the Second Avenue public right-of- way, of a concrete building and a frame building, existing since 1944 and the early 1960's respectively; and WHEREAS, on November 12, 1997, the Monroe County Board of County Commissioners ("BOCC") entered into a Lease Agreement with Canalis Holding Corporation ("Canalis") for ten (10) feet of county right-of-way on Second Avenue, Key Largo Florida, for a term of ten (10) years from December 1, 1997 unlit November 30, 2017 ("Original Lease'); and WHEREAS, on February 18, 2004, the Lease was assigned from Canalis to Earthmark Companies, LLC ("Earthmark") which assignment was approved as required by paragraph 7 of the Original Lease by the BOCC; and WHEREAS, on August 18, 2004. the BOCC approved the Lease assignment from Earthmark to Ocean Sunrise Associates, LLC ("Ocean Sunrise"); and WHEREAS, on July 20, 2011, the BOCC acknowledged the transfer of title through a foreclosure action from Ocean Sunrise to Morgan Ocean Sunrise, LLC ("Morgan Ocean Sunrise"), on the same date; and WHEREAS, on July 20, 2011, the BOCC acknowledged and approved the Assignment of Lease ("Assignment of Lease") from Morgan Ocean Sunrise to Florida Keys Quality Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive, lslamorada, Florida 33036 a tenant of the contiguous property and leased right-of-way upon which the existing historical encroachment is located ("Quality Foods"); and WHEREAS, Morgan Ocean Sunrise was successor in interest to the rights and obligations set forth in the Development Agreement between Ocean Sunrise and the BOCC which was Packet Pg. 1391 M.9.d i se eM-Io-I t l ell pue ; i el pue - se 'l c _ -I I ;juatin att s r approved by Resolulon 493-2007 on November 14, 2007 ("Development Agreement"), which V included ilia use of the leased property and which was executed subsequently to ilia lease, thus r allowing some modifications in the use of the property under the Original Lease, and WHEREAS, the survey and site plan provided at the time of the Developmenl Agreement approval showed encroachment of buildings or slructures beyond the original description of ilia leased Premises as well as allowing parking, wheel slops, an impervious handicapped parking space, and landscaping on the right-of-way; and WHEREAS, on September 21, 2011 the BOCC entered into an Amendment to Lease with Morgan Ocean Sunrise reflecting the above changes to the Original Lease; and WHEREAS, the contiguous property is currently owned by Key Marina Development, LLC, a Florida limited liability company, whose principal address is 52 Miley Road Unit 155, Celebration, Florida 34747, as acquired through a Special Warranty Deed dated October 21, 2013 and recorded in Official Records Book 2655 Page 1209 in the Office of the Monroe County Clerk of [lie Court ("Key Marina"); and WHEREAS, Key Marina is the current successor in interest to the rights and obligations set forth in the Development Agreement and is outlined in the Key Marina Development, LLC Major Conditional Use of Mandalay Proposed Site Plan ("Site Plan"); and WHEREAS, Quality Foods is the current Lessee and Tenant of the leased property under the Assignment of Lease; and WHEREAS, Quality Foods desires to terminate the Original Lease and the Assignment of Lease as of the date of this Right -of -Way Lease Agreement; and WHEREAS, Key Marina has provided a new Survey and Legal Description, dated December 07, 2016 incorporating the Site Plan revisions for the Mandalay property, a copy of which is attached hereto and made a part hereof ("Exhibit A"); and WHEREAS, Key Marina is the legal title owner of the contiguous property and desires to become the LESSEE; and WHEREAS, Quality Foods is the current tenant of the contiguous property and desires to become the SUB -LESSEE on the leased Premises; WHEREAS, Key Marina, Quality Foods and BOCC desire to enter into this Right -of -Way Lease Agreement reflecting the revised survey and legal description; and M%EREAS, this Right -of -Way Lease Agreement ("ROW LEASE") is entered into in order to reflect the historic encroachment upon! the Second Avenue public right-of-way, of a concrete 2 ( se e ,. - fit AelepueVg . ) ele ue .ese -1 s 1 - q!1:JLJaW43eJJV building and a frame building, existing since 1944 and the early 1960's respectively, which buildings are currently owned by the Key Marina, NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set forth below, the parties agree as follows: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ("LESSOR") for and in consideration of the mutual covenants and agreements hereinafter contained, does hereby lease to KEY MARINA ('LESSEE") the right of way on Second Avenue, Key Largo, Florida contiguous to the Mandalay development, more particularly described in paragraph two (2) below and subject to the following terms and conditions: 1. TERM: The term of this lease shall be for a period of (15) years commencing on the day of , 2017 and ending on the day of , 2032, unless sooner terminated pursuant to the provisions of this Lease. 2. DESCRIPTION OF PREMISES: The property subject to this Lease is situated in the County of Monroe, State of Florida, and is more particularly described in Exhibit "A" attached hereto and made a part hereof,. CONSIDERATION:, LESSEE shall pay to LESSOR within ten (10) days of the commencement date and each anniversary thereafter, the sum of Fifty Dollars (S50.00) and NO cents per year to be remitted to the Monroe County Clerk of Court for the Monroe County Board of County Commissioners at 500 Whitehead Street, Key West, Florida 33040. 4.. PURPOSE: This ROW LEASE is for the purpose of reflecting the historic encroachment upon the Second Avenue public right-of-way, of a concrete building and a frame building, existing since 1944 and the early 1960's respectively and allowing the use of the existing buildings and accessory structures that exist on the county right -or -way as shown on the survey, a copy of which is attached hereto and made a part hereof as Exhibit "A". 5. QUIET ENJOYMENT AND RIGHT OF USE: LESSEE shall have the right of ingress and egress to, from and upon the leased premises for all purposes necessary to the full quiet enjoyment by said LESSEE of the rights conveyed herein. 6. UNAUTHORIZED USE: LESSEE shall through its agents and employees prevent the unauthorized use of the leased Premises or any use thereof not in conformance with this ROW LEASE. No changes or improvements which increase to any degree the existing footprint of buildings on said leased Premises or any other improvement, or any addition to any existing landscaping including plants and rocks, shall be allowed under this lease. Packet Pg. 1393 N /: /e (OSWI Aeft,101461NA l ue a i t c .. Sc81 Ae -,t -101U :)U8UJ4,3BJJV LO N N' w iiL'; 7. ASSIGNMENT/SUBLEASE. This lease shall not be assigned or subleased in whole or X in part without the prior written consent of LESSOR. Any assignment or sublease made 0. either in whole or in part without the prior written consent of LESSOR shall be void and without legal effect. a. LESSOR consents to the sub -lease of the Premises to Florida Keys Quality Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive, ? °CL Islamorada, Florida 33036, a tenant of the contiguous property and leased right - CL of -way upon which the existing historical encroachment is located ("Quality Foo(s"), so long as Quality Foods has a valid and enforceable lease with LESSEE _ for the contiguous property, owned by LESSEE. b. Should LESSEE and Quality Foods fail to enter into a valid lease for the contiguous property at this time or at any time in the future the consent for sub- lease will be automatically terminated. J 8. EASEMENTS: This Lease is subject to any utility easement existing on said leased Premises. Any other easement not approved in writing by LESSOR shall be void and without legal effect. 9. RIGHT OF INSPECTION: LESSOR or its duly authorized agents. representatives or employees shall have the right at any and all times during daylight hours to inspect the leased premises and the works and operations of LESSEE in any matter pertaining to this ROW LEASE. 10. INSURANCE During the term of this ROW LEASE, LESSEE ,REQUIREMENTS: shall procure and maintain policies of fire, extended risk, and liability insurance coverage. The liability insurance coverage shall be in amounts not less than One Hundred Thousand Dollars and NO/100 ($100,000.00) per occurrence and Two Hundred 00 Thousand Dollars and NO/100 (S200,000.00) per accident for personal injury, death and property damage on the leased premises. Such policies of insurance shall name LESSOR,, Monroe County, as additional insured. LESSEE shall submit written evidence of having procured all insurance policies required herein prior to the effective date of this ROW LEASE and shall submit annually thereafter written evidence of maintaining such insurance policies to the Monroe County Clerk of the Court, 500 Whitehead Street, Key `0 West, Florida 33040. LESSEE shall purchase all policies of insurance from a financially responsible insurer duly authorized to do business in the State of Florida. LESSEE shall be financially responsible for any loss due to failure to obtain adequate insurance coverage, and the failure to maintain such policies or certificates in the amounts set forth E shall constitute a breach of this ROW LEASE„ IL LIABILITY: Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, LESSEE covenants and agrees that it shall defend, indemnify and hold the LESSOR and LESSOR'S elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any 4 Packet Pg. 1394 i s - -Io-Iq i lepUe : i cJ UUw- ss mtAPM-lo-ItIMM quawL10211V R' CS r Z', litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses that may be asserted against, initiated with respect to, or sustained by any indemnified party by reason of, or in connection with, (a) any activity of LESSEE or any of its employees, agents, sub -lessees or other invitees during the term of this Agreement, (b) the negligence or willful misconduct of LESSEE or any of its employees, agents, sub -lessees or other invitees except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or negligent acts in part or omissions of the LESSEE or any of its employees, agents, contractors or invitees (other than LESSEE). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses related to events or circumstances that occur during the term of this LEASE, this section will survive the expiration of the term of this ROW LEASE or any earlier termination of this ROW LEASE. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this ROW LEASE. 12. PAYMENT OF TAXES AND ASSESSMENTS: LESSEE shall assume full responsibility for and shall pay all liabilities that accrue to the leased Premises or to the improvements thereon, including any and all ad valorem taxes and drainage and special assessments or taxes of every kind and all ad mechanic's or materialmen's liens which may be hereafter lawfully assessed and levied against the leased Premises. 13. NO WAIVER OF BREACH: The failure of LESSOR to insist in any one or more instances upon strict performance of any one or more of the covenants, terms and conditions of this ROW LEASE shall not be construed as a waiver of such covenants, terms or conditions, but the same shall continue in fiill force and effect, and no waiver of LESSOR of any of the provisions hereof shall I any event be deemed to have been made unless the waiver is set forth in writing, signed by LESSOR. 14. TIME: Time is expressly declared to be of the essence of this ROW LEASE. 15. UTILITY FEES: LESSEE shall be responsible for the payment of all charges for the furnishing of gas, electricity, water and other public utilities to the leased Premises and for having all utilities turned off when the leased Premises are surrendered. 16. MINERAL RIGHTS: This ROW LEASE does not cover petroleum or petroleum products or minerals and does not give the right to LESSEE to drill for or develop the same, and LESSOR specifically reserves the right to lease the leased Premises for purpose of exploring and recovering oil and minerals by whatever means appropriate; provided, however, that LESSEE named herein shall be fully compensated for any and all damages that might result to the leasehold interest of said LESSEE by reason of such exploration and recovery operation, lij Packet Pg. 1395 I es e - -tqt ele i eje eW -swag e -Ic-� 6� -1ugLu oe11 17, RIGHT OF AUDIT: LESSEE shall make available for LESSOR all financial and other records relating to this ROW LEASE and LESSOR shall have the right to either audit such records at any reasonable time or require the submittal of an annual independent audit by a Certified Public Accountant during (lie term or this ROW LEASE. This ROW LEASE may be terminated by LESSOR should LESSEE fail to allow public access to all documents, papers, letters or other materials made or received in conjunction with this lease, pursuant to the provisions of Chapter 119, Florida Statutes. 18. CONDITION OF PREMISES; LESSEE agrees that this ROW LEASE is contingent upon and subject to LESSEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida or the United States or of any political subdivision or agency of either. 19. COMPLIANCE_ WITH LAWS: LESSEE agrees that this ROW LEASE is contingent upon and subject to LESSEE obtaining all applicable permits and complying with all applicable permits regulations, ordinances, rules, and laws of the State of Florida or the United States or of any political subdivision or agency of either. 20. BREACH OF COVENANTS, TERMS OR CONDITIONS: Should LESSEE breach any of the covenants, terms or conditions of this ROW LEASE, LESSOR shall give written notice to LESSEE to remedy such breach within sixty (60) days of such notice. In the event LESSEE fails to remedy the breach to the satisfaction of LESSOR within sixty (60) days of receipt of written notice, LESSOR may either terminate this ROW LEASE and recover from LESSEE all damages LESSOR may incur by reason of the breach including, but not limited to, the cost of recovering the leased Premises and attorneys' fees or maintain this ROW LEASE in full force and effect and exercise all rights and remedies herein conferred upon LESSOR. 21. DAMAGES TO THE PREMISES: a. LESSES shall not do, or suffer to be done, in, on or upon the leased Premises or as affecting said leased Premises or adjacent properties, any act which may result in damage or depreciation of value to the leased Premises or adjacent properties, or any part thereof. b. LESSEE shall not generate, store, produce, place, treat, release or discharge any contaminants, pollution, including, but not limited to, hazardous or toxic substances, chemicals or other agents on, into, or from the leased Premises or any adjacent lands or waters in any manner not permitted by law. For the purposes of this ROW LEASE, "hazardous substances" shall mean and include those elements or compounds defined in 42 USC Section 9601 or which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated by the United States Congress or the EPA or defined by any other federal, state or local sta(ute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning 6 M.9.d ti tiN 04 ,n cc a Packet Pg. 1396 i se e , -j ., Bi e1ep e : . i elepup µas e ,-t -1 9 :1uaw,-ae2t any hazardous, toxic or dangerous waste, substance, material, pollutant or contaminant. "Pollutants" and "pollution" shall mean those products or substances defined in Florida Statutes, Chapter 376 and Chapter 403, and the rules promulgated thereunder, all as amended or updated from time to time; In the event of LESSEE's failure to comply with this paragraph, LESSEE shall, at its sole cost and expense, promptly commence and diligently pursue any legally required closure, investigation, assessment, cleanup, decontamination, remediation, restoration and monitoring of (1) the leased Premises, and (2) all ofl-site ground and surface waters and lands affected by LESSEE's such failure to comply, as may be necessary to bring the leased Premises and affected off -site waters and lands into full compliance with all applicable federal, state, or local statutes, laws, ordinances, codes, rules, regulations, orders and decrees, and to restore the damaged property to the condition existing immediately prior to the occurrence which caused the damage. LESSEE's obligations set forth in this paragraph shall survive the termination of expiration of this ROW LEASE. This paragraph shall not be construed as a limitation upon LESSEE's obligations regarding indemnification and payment of costs and fees as set forth in paragraph I I of this ROW LEASE, nor upon any other obligations or responsibilities of the LESSEE as set forth herein, Nothing herein shall relieve LESSEE of any responsibility or liability prescribed by law for fines, penalties and damages levied by governmental agencies, and the cost of cleaning up any contamination caused directly or indirectly by LESSEE's activities or facilities. Upon discovery of a release of a hazardous substance or pollutant, or any other violation of local, state, or federal law, ordinance, code, rule, regulation, order or decree relating to the generation, storage, production, placement, treatment, release or discharge of any contaminant, LESSEE shall report such violation to all applicable governmental agencies having jurisdiction and to LESSOR, all within the reporting period of the applicable agency. c. Should the buildings which extend onto the leased Premises be substantially damaged for any reason and cannot be repaired but must, pursuant to law, be removed and replaced by structure(s) meeting laws in existence at the time of such occurrence, this ROW LEASE shall be automatically terminated. 22. SURRENDER OF PREMISES: Upon termination or expiration of this ROW LEASE, LESSEE shall surrender the leased Premises to LESSOR. In the event no further use of the leased Premises or any part thereof is needed, LESSEE shall give written notification to LESSOR at least six (6) months prior to the release of any or all of the leased Premises. Notification shall include a legal description and an explanation of the release. The release shall only be valid if approved by LESSOR through the execution a release of the ROW LEASE instrument with the same formality as this ROW LEASE. Prior to surrender of all or any part of the leased Premises, a representative of the Division of State Lands shall perform an on -site inspection. If the leased Premises violate conditions set forth in paragraph 6 herein, LESSEE shall pay all costs necessary to remove any unauthorized improvements or charges. 7 Packet Pg. 1397 M.9.d issea-1 AeAA-jo-jqBiM AejepueVU: i ete ue - se e W ntst t :juawlVepVN N o1 C4 z to Q 23. PROmninONS AGAINST LIENS OR 0MIER ENCUMBRANCES: Fee title to the leased Premises is held by LESSOR. LESSEE shall not do or permit anything to be a done which purports to create a lien or encumbrance of any nature against the real property contained in the leased Premises including, but not limited to, mortgages or construction liens against the leased Premises or against any interest or LESSOR therein. 24. PARTIAL INVALIDITY: if any term, covenant, condition or provision of this ROW LEASE shall be ruled by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 25. ARCHAEOLOGICAL AND HISTORIC SITES: Execution of this ROW LEASE in no way affects any of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state- owned lands is prohibited unless prior authorization has been obtained from the Department of State, Division of Historical Resources. 26, SOVEREIGNTY SUBMERGED LANDS: This ROW LEASE does not authorize the use of any lands located waterward of the mean or ordinary high water line of any lake, river, stream, creek, bay, estuary or other water body or the waters or the airspace thereabove. 27. DUPLICATE ORIGINALS: This ROW LEASE is executed in duplicate originals each of which shall be considered an original for all purposes. 28. ENTIREUNDERSTANDING: This ROW LEASE sets forth the entire understanding between the parties and shall only be amended with the prior written approval of LESSOR. 29, MAINTENANCE OF IMPROVEMENTS. LESSEE shall maintain the real property contained within the leased Premises in a state of good condition including, but not limited to, keeping the leased Premises free of trash or litter and meeting all building and safety codes in the location situated. 30. GOVERNING LAW: This ROW LEASE shall be governed by and interpreted according to the laws of the State of Florida. 31. SECTION CAPTIONS: Articles, subsections and other captions contained in this ROW LEASE are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this ROW LEASE or any provisions thereof. 32. NOTICES: All notices given under this lease shall be in writing and shall be served by certified mail including, but not limited to notice of any violation served pursuant to 253.04, Florida Statutes, to the last address of the party to whom notice is to be given, as a M.9.d i ea -I AeM-jo-jo46iM AalepueW : 9LSZI le m- e -I eM. -j o :jU9U q3e j M M r.. designated by such early in writing. LESSOR and LESSEE hereby designate their a` address as follows: a (OseO-1 AeM-10-446W ABIRPUM : . ) i - seOl AeAA10-14618 lUOURPERV LESSOR: County Administrator 1100 Simommm SUM Key West, Fkddo 33040 LESSEE: Key Marina Development, LLC 52 Riley Road Unit 15S Celebnulon, 'Florida 34747 SUB -LESSEE: Fiorlds Keys Quality Foods, Inc. 125 Islamorada, Florida 33036 IN W17NESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) ATTEST: KEVIN MADOK, CLERK By: Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By. Mayor/Chairperson, George Neugent KEY MARINA DEVELOPMENT, LLC By: W) Title; FLORIDA KEYS Q ALITY F By: W (asee-I AeAA-jo-jqS!H AelepuuW - 9L9Z) Aelepliew-usea-1 AeAA-lo-plBiN quawlVelIV q C2 V: z This docu Cut Avasp,-epared and approved its to form by: L4 C. Reud Rogers, Esq. Date Assistant County Attorney Florida Bar No.: 0101178 P.O. Box 1026 Key West, FL 33041-1026 (305) 292-3470 11 SKETCH AND DESCRIPTION A PORTION OF AMENDMENT TO LEASE (O.R.B. 2839, PG.1634, M.C.R.) KEY LARGO, MONROE CONTY, FLORIDA 1. Reproductions of this Sketch are not valid without the signature and the original raised seal of c Florida licensed surveyor and mapper. 2. No Title Opinion or Abstract to the subject property has been provided. It is possible that there are Deeds, Easements, or other instruments (recorded or unrecorded) which may affect the subject property. No search of the Public Records has been mode by the Surveyor. 3. The land description shown hereon was prepared by the Surveyor. 4. Bearings shown hereon are based on the adjoining plot of KEY LARGO NORTH, recorded in Plat Book 7, Page 22 of the Public Records of Monroe County, Florida with the northeasterly right—of—way line of Second Avenue having a bearing of N 44'37'16" W. 5. Data shown hereon was compiled from instrument(s) of record and does not constitute o boundary survey. 6. Abbreviation Legend: F.B. = Field Book; L.B. = Licensed Business; M.C.R. = Monroe County Records; No. = Number; O.R.B. = Official Records Book; P.B. = Plat Book; PG. = Page; P.L.S. = Professional Land Surveyor; P, O = a Portion of; P.O.B. = Point of Beginning; P.O.C- = Point of Commencement; S.F. = Square Feet. CERTIFICATION: I HEREBY CERTIFY that the attached Sketch and Description of the hereon described property is true and correct to the best of my knowledge and belief as prepared under my direction. I FURTHER CERTIFY that this Sketch and Description meets the Standards of Practice set forth in Chapter 5J-17, Florida Administrative Code, pursuant to Section 472.027, Florida. Statutes. Date: i� � � G � — 2 c. , ,,. —4&1 Z— KtZAI�'CHEE—A—TOW, P.L.S. Florida Registration No. 5328 AVIROM & ASSOCIATES, INC. LB. No. 3300 NOT VALID WITHOUT SHEETS 1- 3 AVIROM & ASSOCIATES, INC. JOB#: 9881-6 8,A$soo. SURVEYING & MAPPING SCALE: 1"=3' X 50 S. W. 2nd AVF_NUF_ SUITE 102 DATE: 12/07/2016 4 M BOCA RATON, FLORIDA 33432 BY: S.RL ML. (561) 392-2594, FAX (561) 3 4-7125 '�umeo 120—AV1ROMSURVEYcom CHECKED: SAM. C)-6 AVRW&ASSacaarEaI ann0=,.SW,*d' F.B. NONE PG. !t s yt !sme maxry w .av c RSSOCL4TES, JA Attachment: Survey and Legal Description (25 : Mandalay Right -of -Way Lease) r SKETCH AND DESCRIPTION l PORTION AMENDMENT R , LEASE 9 R KEY LARGO, MONROE COUNTY, FLORIDA A portion of an Amendment to Lease, as recorded in Official Records Book 2539, Page 1634, of the Public Records of Monroe County, Florida, described as follows: A portion of Second Avenue adjacent to Lot 1, Block 4, MANDALAY, according to the Plat thereof, as recorded in Plat Book 1, Page 194, of the Public Records of Monroe County, Florida, described as follows: COMMENCE at the intersection of the centerline of said Second Avenue with the centerline of East Second Street, according to said Plot; thence S 44'37'16" E along the centerline of said Second Avenue, a distance of 25.00 feet to a point on the southwesterly projection of the southeasterly right—of—way line of East Second Street; thence N 45'17'46" E along said southwesterly projection of East Second Street, 9.60 feet to a line being 20.40 feet southwesterly of and parallel with the northeasterly right—of—way line of said Second Avenue, said line also being the southwesterly limits of said Amendment to Lease; thence S 44°37'16" E along said parallel line and said southwesterly limits of said Amendment to Lease, 19.99 feet to a point on the southeasterly limits of a proposed cul—de—sac and a point on a non —tangent curve, concave to the east, having a radius of 20.75 feet and a central angle of 17°20'06" (a radial line bears S 75°05'47" E from said point), said point also being the POINT OF THE BEGINNING; thence northerly along said southeasterly limits of proposed cul—de—sac along the arc of and said non --tangent curve, a distance of 6.28 feet; (the next three courses and distances being along said southeasterly limits of proposed cul—de—sac) thence N 47'21'06" E, 3.52 feet; thence N 43°27'45" E. 3.27 feet to a point on a non —tangent curve, concave to the northwest, having a radius of 50-00 feet and a central angle of 10°56'18" (a radial line bears S 48°24'43" E to said point); thence northeasterly along the arc of said non —tangent curve a distance of 9.55 feet to the northeasterly line of said Amendment to Lease and a point of cusp with a non —tangent curve, concave to the northeast, having a radius of 25.00 feet and a central angle of 2034'30" (a radial I'ne bears S 65°57'14" W from said point); thence southeasterly along said northeasterly line of Amendment to Lease and the arc of said non —tangent curve, a distance of 8.98 feet to a point of tangency, thence S 44°37'16" E along said northeasterly line of Amendment to Lease also being said northeasterly right—of—way line of said Second Avenue, a distance of 151.90 feet to the southeasterly limits of said Amendment to Lease; thence S 45°22'44" W along said southeasterly limits of said Amendment to Lease, a distance of 20.40 feet to said line being 20.40 feet southwesterly of and parallel with the northeasterly right —of --way line of said Second Avenue and said southwesterly limits of said Amendment to Lease; thence N 44°37'16" W, along said parallel line and said southwesterly Limits of said Amendment to Lease, a distance of 156.84 feet to the POINT OF BEGINNING. Said lands Tying and situate in Key Largo, Monroe County, Florida, containing 3,249 square feet (0.075 acres), more or less. NOT VALID WITHOUT SHEETS 1- 3 AVIROM & ASSOCIATES, INC. JOBS 9881-6 ®�$.ASSoc® SURVEYING & MAPPING SCALE: 9°=�' 50 S.W. 2nd AVENUE. SUITE rot DATE: i2(07l2016 d TA m BOCA BATON. FLORDA 33432 BY. S.RL TEL (56 f j 392-2594. FAX (561) 394-7125 vrww.AWROMSURV_=Ycom CHECKED: SA.M. Z Q=6 AVtM'WaRSS®CJATES,INC, ,rsmcQ F.B. NONE PG. �7zSkeKe°rlt!ho pm -,Ty a AVIRO.Me. ASWCtATEIWC. Attachment: Survey and Legal Description (2576 : Mandalay Right -of -Way Leese) Racket Pg. 1403 SKETCH AND DESCRIPTION A PORTION OF AMENDMENT TO LEASE (O.R.B. 2539, PG.1634, M.C.R.) KEY LARGO, MONROE COUNTY, FLORIDA \ � i R=50.00 -- 'a=10.56'18"� L=9.55' N 43.27'45" E Sri 3.27' N47"21106"E 3.52' N 45"746" E 9.60' ' P.O.C. s INTERSECTION OF Irs CENTERLINE OF �S`>• SECOND AVENUE AND CENTERLINE F EAST SECOND STREET S 44*37'16* E 19.99' ` SOUTHWESTERLY LIMITS OF AMENDMENT TO LEASE (O.R.B. 2539/1634 M.C.R.) R=20.75'-/ P.O.B. A--17.20'06" L=6.28' NOT VALID WITHOUT SHEETS 1 - 3 0 30 60 GRAPHIC SCALE IN FEET 1'-30' SOUTHEASTERLY LIMITS PROPOSED CUL-DE-SAC -POINT OF CUSP �o,;' _�—R=25.00' '�, 4q' A=20'34'30 0C� L=8.98 �- NORTHEASTERLY 40 LINE OF AMENDMENT TO LASE tj . F (O.R.B. 2539/1634 M.C.R.) x = 6'3 src" ;" �' Q'Q �S+ St• .� �A�Gyo\ � roo� yT 19�, F ,' `, ,sue OiA `o �C'PC_s�, /m "I\ 20.40' SOUTHWESTERLY OF AND PARALLEL WITH NORTHEASTERLY RIGHT--OF—WAY SECOND AVENUE ;ti0= VK •�, �Q` t0 SQW1� ti A V1ROM & ASSOCIATES, INC. JOB#. 9881-6 Asse�� SURVEYING & MAPPING SCALE: 1• = N va 50 a W 2nd AVENUE. SUITE ioz DATE 1210712D16 4 H BOCA RATON, FLOPIDA 33432 BY, S.R L TEL (S61) 392.2594„ FAX (561) 394-7125 www.AV►ROMSURVEY m CHECKED., SA.M. Z ��usxED i®ms6 AVrRCusASSCCIATES lNa ao n4;mwrnr. I F.B. NONE PG. s Th. SAwfsh fs the WOA�ay.1 AVIR04t 6 ASSOCfATES. GVG p ar4snowar�unerw nr�. r cuter. r%r Att rsl° meat. Beauty and Legal Description (25 6 : Mandalay Right -of -Way LR SE Racket Pg. 1404 MONROE COUNTY _InRCD Nov 06 2001 04:54AM OFFICIAL RECORDS DANNY L KOLHAGE, CLERK FILE # 1 2 6 5 1 8 S LEASE AGREEMENT BK# 1 7 3 6 PG# 14 2 E3 O THIS LEASE AGREEMENT, made and entered into this day of ' 970 between the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORID�'�! leirveer referred to as "LESSOR" and CANALIS HOLDING CORP., hereinafter referred to as "LESS."` O v LESSOR, for and in consideration of the mutual covenants and agreements' hereinafter contained, does hereby lease to said LESSEE the lands described in paragraph 2 below and subject to the following terms and conditions: 1. TERM The term of this lease shall be for a period of twenty (20) years commencing on and ending on o/ /' ! E'- unless sooner terminated pant to the provisions of this lease. 2. DESCRIPTION OF PREMISES The property subject to this lease is situated in the County of Monroe, State of Florida, and is more particularly described as the easterly ten feet of Second Avenue, Mandalay Subdivision, Key Largo, Monroe County, Florida, adjacent to Lot 1, Block 4, Plat Book 1-194. 3. PURPOSE This Lease is for the purposes described in Exhibit A which is attached hereto and made a part hereof. 4. CONSIDERATION LESSEE shall pay to LESSOR within ten days of the commencement date and each anniversary thereafter, the sum of $100 per year to be remitted to the Clerk for the Board of County Commissioners, 500 Whitehead Street, Key West, Florida 33040. 5. QUIET ENJOYMENT AND RIGHT OF USE LESSEE shall have the right of ingress and egress to, from and upon the leased premises for all purposes necessary to the full quiet enjoyment by said LESSEE of the rights conveyed herein. 6. UNAUTHORIZED USE LESSEE shall, through its agents and employees, prevent the unauthorized use of the leased premises or any use thereof not in conformance with this lease. No changes or improvements which increase to any degree the existing footprint of buildings on said leased premises or any other improvement, or any addition to any existing landscaping, including plants and rocks, shall be allowed under this lease. 7. ASSIGNMENT/SUBLEASE This lease shall not be assigned or subleased in whole or in part without the prior written consent of LESSOR. Any assignment or sublease made either in whole or in part without the prior written consent of LESSOR shall be void and without legal effect. 8. EASEMENTS This lease is subject to any utility easement existing on said leased premises. Any other easement not approved in writing by LESSOR shall be void and without legal effect. 9. RIGHT OF INSPECTION LESSOR or its duly authorized agents, representatives or employees shall have the right at any and all times during daylight hours to inspect the leased premises and the works and operations of LESSEE in any matter pertaining to this lease. 10. INSURANCE REQUIREMENTS During the term of this lease, LESSEE shall procure and maintain policies of fire, extended risk, and liability insurance coverage. The liability insurance coverage shall be in amounts not less than $100,000.00 per occurrence and $200,000.00 per accident for personal injury, death and property damage on the leased premises. Such policies of insurance shall name LESSOR, Monroe County, and LESSEE as co -insureds. LESSEE shall submit written evidence of having procured all insurance policies required herein prior to the effective FILE # 1 2 6 5 1 89 BK#1736 PG#1429 date of this lease and shall submit annually thereafter written evidence of maintaining such insurance policies to the Clerk of the Board of County Commissioners, Monroe County, Florida, 500 Whitehead Street, Key West, FL 33040. LESSEE shall purchase all policies of insurance from a financially responsible insurer duly authorized to do business in the State of Florida. LESSEE shall be financially responsible for any loss due to failure to obtain adequate insurance coverage, and the failure to maintain such policies or certificates in the amounts set forth shall constitute a breach of this lease. 11. LIABILITY Each party is responsible for all personal injury and property damage attributable to the negligent acts or omissions of that party and the officers, employees and agents thereof. Nothing herein shall be construed as an indemnity or a waiver of sovereign immunity enjoyed by any party hereto, as provided in Section 768.28, Florida Statutes, as amended from time to time, or any other law providing limitations on claims. 12. PAYMENT OF TAXES AND ASSESSMENTS LESSEE shall assume full responsibility for and shall pay all liabilities that accrue to the leased premises or to the improvements thereon, including any and all ad valorem taxes and drainage and special assessments or taxes of every kind and all mechanic's or materialmen's liens which may be hereafter lawfully assessed and levied against the leased premises. 13. NO WAIVER OF BREACH The failure of LESSOR to insist in any one or more instances upon strict performance of any one or more of the covenants, terms and conditions of this lease shall not be construed as a waiver of such covenants, terms or conditions, but the same shall continue in full force and effect, and no waiver of LESSOR of any of the provisions hereof shall in any event be deemed to have been made unless the waiver is set forth in writing, signed by LESSOR. 14. TIME Time is expressly declared to be of the essence of this lease. 15. UTILITY FEES LESSEE shall be responsible for the payment of all charges for the furnishing of gas, electricity, water and other public utilities to the leased premises and for having all utilities turned off when the leased premises are surrendered. 16. MINERAL RIGHTS This lease does not cover petroleum or petroleum products or minerals and does not give the right to LESSEE to drill for or develop the same, and LESSOR specifically reserves the right to lease the leased premises for purpose of exploring and recovering oil and minerals by whatever means appropriate; provided, however, that LESSEE named herein shall be fully compensated for any and all damages that might result to the leasehold interest of said LESSEE by reason of such exploration and recovery operation. 17. RIGHT OF AUDIT LESSEE shall make available to LESSOR all financial and other records relating to this lease, and LESSOR shall have the right to either audit such records at any reasonable time or require the submittal of an annual independent audit by a Certified Public Accountant during the term of this lease. This right shall be continuous until this lease expires or is terminated. This lease may be terminated by LESSOR should LESSEE fail to allow public access to all documents, papers, letters or other materials made or received in conjunction with this lease, pursuant to the provisions of Chapter 119, Florida Statutes. 18. CONDITION OF PREMISES LESSOR assumes no liability of obligation to LESSEE with reference to the condition of the leased premises. The leased premises herein are leased by LESSOR to LESSEE in an "as is" condition, with LESSOR assuming no responsibility for the care, repair, maintenance or improvement of the leased premises for the benefit of LESSEE. 2 FILE # 1 2 6 5 1 8 9 BK# 1. 7 3 E PG# 1 4 3 0 19. COMPLIANCE WITH LAWS LESSEE agrees that this lease is contingent upon and subject to LESSEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida or the United States or of any political subdivision or agency of either. 20. NOTICE All notices given under this lease shall be in writing and shall be served by certified mail including, but not limited to, notice of any violation served pursuant to 253.04, Florida Statutes, to the last address of the party to whom notice is to be given, as designated by such party in writing. LESSOR and LESSEE hereby designate their address as follows: LESSOR: LESSEE: County Administrator Marty Webb Public Service Building CANALIS HOLDING CORP. 5100 College Road, Stock Island 80 East Second Street Key West, FL 33040 Key Largo, FL 33037 21. BREACH OF COVENANTS, TERMS OR CONDITIONS Should LESSEE breach any of the covenants, terms or conditions of this lease, LESSOR shall give written notice to LESSEE to remedy such breach within sixty (60) days of such notice. In the event LESSEE fails to remedy the breach to the satisfaction of LESSOR within sixty (60) days of receipt of written notice, LESSOR may either terminate this lease and recover from LESSEE all damages LESSOR may incur by reason of the breach including, but not limited to, the cost of recovering the leased premises and attorneys' fees or maintain this lease in full force and effect and exercise all rights and remedies herein conferred upon LESSOR. 22. DAMAGE TO THE PREMISES (A) LESSEE shall not do, or suffer to be done, in, on or upon the leased premises or as affecting said leased premises or adjacent properties, any act which may result in damage or depreciation of value to the leased premises or adjacent properties, or any part thereof. (B) LESSEE shall not generate, store, produce, place, treat, release or discharge any contaminants, pollutants or pollution, including, but not limited to, hazardous or toxic substances, chemicals or other agents on, into, or from the leased premises or any adjacent lands or waters in any manner not permitted by law. For the purposes of this lease, "hazardous substances" shall mean and include those elements or compounds defined in 42 USC Section 9601 or which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (EPA) and the list of toxic pollutants designated by the United States Congress or the EPA or defined by any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance, material, pollutant or contaminant. "Pollutants" and "pollution" shall mean those products or substances defined in Florida Statutes, Chapter 376 and Chapter 403, and the rules promulgated thereunder, all as amended or updated from time to time. In the event of LESSEE's failure to comply with this paragraph, LESSEE shall, at its sole cost and expense, promptly commence and diligently pursue any legally required closure, investigation, assessment, cleanup, decontamination, remediation, restoration and monitoring of (1) the leased premises, and (2) all off -site ground and surface waters and lands affected by LESSEE's such failure to comply, as may be necessary to bring the leased premises and affected off -site waters and lands into full compliance with all applicable federal, state, or local statutes, laws, ordinances, codes, rules, regulations, orders, and decrees, and to restore the damaged property to the condition existing immediately prior to the occurrence which caused the damage. LESSEE's obligations set forth in this paragraph shall survive the termination of expiration of this lease. This paragraph shall not be construed as a limitation upon LESSEE's obligations regarding indemnification and payment of costs and fees as set forth in paragraph 12 of this lease, nor upon any other obligations or responsibilities of LESSEE FILE # 1 2 6 5 1 a S BK# 1 7 3 6 PG# 1 4 3 1 as set froth herein. Nothing herein shall relieve LESSEE of any responsibility or liability prescribed by law for fines, penalties and damages levied by governmental agencies, and the cost of cleaning up any contamination caused directly or indirectly by LESSEE's activities or facilities. Upon discovery of a release of a hazardous substance or pollutant, or any other violation of local, state, or federal law, ordinance, code, rule, regulation, order or decree relating to the generation, storage, production, placement, treatment, release or discharge of any contaminant, LESSEE shall report such violation to all applicable governmental agencies having jurisdiction, and to LESSOR, all within the reporting period of the applicable agency. (C) Should the buildings which extend onto the leased premises be substantially damaged for any reason and cannot be repaired but must, pursuant to law, be removed and replaced by structure(s) meeting laws in existence at the time of such occurrence, this lease shall be automatically terminated. 23. SURRENDER OF PREMISES Upon termination or expiration of this lease, LESSEE shall surrender the leased premises to LESSOR. In the event no further use of the leased premises or any part thereof is needed, LESSEE shall give written notification to LESSOR at least six (6) months prior to the release of any or all of the leased premises. Notification shall include a legal description and an explanation of the release. The release shall only be valid if approved by LESSOR through the execution of a release of lease instrument with the same formality as this lease. Prior to surrender of all or any part of the leased premises, a representative of the Division of State Lands shall perform an on -site inspection. If the leased premises violate conditions set forth in paragraph 6 herein, LESSEE shall pay all costs necessary to remove any unauthorized improvements or changes. 24. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES Fee title to the leased premises is held by LESSOR. LESSEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property contained in the leased premises including, but not limited to, mortgages or construction liens against the leased premises or against any interest of LESSOR therein. 25. PARTIAL INVALIDITY If any term, covenant, condition or provision of this lease shall be ruled by a court of competent jurisdiction, to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 26. ARCHAEOLOGICAL AND HISTORIC SITES Execution of this lease in no way affects any of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state-owned lands is prohibited unless prior authorization has been obtained from the Department of State, Division of Historical Resources. 27. SOVEREIGNTY SUBMERGED LANDS This lease does not authorize the use of any lands located waterward of the mean or ordinary high water line of any lake, river, stream, creek, bay, estuary, or other water body or the waters or the air space thereabove. 28. DUPLICATE ORIGINALS This lease is executed in duplicate originals each of which shall be considered an original for all purposes. 29. ENTIRE UNDERSTANDING This lease sets forth the entire understanding between the parties and shall only be amended with the prior written approval of LESSOR. 30. MAINTENANCE OF IMPROVEMENTS LESSEE shall maintain the real property contained within the leased premise in a state of good condition including, but not limited to, keeping the leased premises free of trash or litter and meeting all building and safety codes in the location situated. 4 FILE # 1 2 F 5 1 8 S BK# 1 7 3 E PG# 1 4 3 2 31. GOVERNING LAW This lease shall be governed by and interpreted according to the laws of the State of Florida. 32. SECTION CAPTIONS Articles, subsections and other captions contained in this lease are for reference purposes only, and are in no way intended to describe, interpret, define or limit the see, extent or intent of this lease or any provisions thereof. day and da, j 4 (SEAL) ATTEST: DA� ileaseseasement WHEREOF, the parties hereto have caused this lease to be executed on the above written. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF M UNTY, FLORIDA By,. Mayor/Chairman CANALIS HOLDING CORP. By ii�/►3 l�-ex o �-�1a r Marty V41ob, President AS To FORM AND L A` SUFFIIC EN BY N U ANNE A. U DATE 0 5 Cc�n;yMONROE FLOPoDA33040 ., 294-4641 Office of the County Attorney PO Box 1026 Key West, FL 33041-1026 305/292-3470 - Phone 305/292-3516 - Fax August 21, 2001 Gretchen Coral Reef Title Company Via Fax: 1/305/451-0994 Re: Canalis Holding Corp. (Mandalay) Dear Gretchen: BOARD OF COUNTY COMMISSIONERS MAYOR George Neugent, District 2 Mayor Pro tem Nora Williams, District 4 Charles McCoy, District 3 Murray E. Nelson, District 5 Dixie M. Spehar, District 1 FILE # 1 2 F_► .5 1 8 9 BK# 1. 7 3 6 PG# 1 4 3 3 I am faxing to you page 1 of the Lease Agreement dated November 12, 1997, with a portion of paragraph #3 deleted. I have initialed the deletion as no exhibit was ever made part of the agreement. Also, I am faxing two pages from the County Commission's November 12, 1996 meeting minutes and a letter dated August 22, 1996. The letter initiated an attempt to purchase the ten foot wide strip of land, but the Commission determined that a twenty year lease would be more appropriate. I hope these items assist you in completing your transaction. SAH/ss Enc. cc: Marty Webb Sincerely, Suzanne A. Hutton Assistant County Attorney MONROE COUNTY OFFICIAL RECORDS