Item N3County off Monroe
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BOARD OF COUNTY COMMISSIONERS
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Mayor George Neugent, District 2
The Florida. Ke Sew',
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Mayor Pro Tern David Rice, District 4
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Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
County Commission Meeting
October 18, 2017
Agenda Item Number: N.3
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., after
discussion and direction by the BOCC to obtain an appraisal for the fair market rental value, 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 $406.25 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 first
three (3) years of the initial seven-year term in advance and thereafter pay the rental fee in two (2)
year increments. Lessee 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 in two-year increments 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.
After direction from the BOCC on 8/16/17 to obtain a market rate appraisal, an Appraisal was
completed by Marr & Associates, Appraisal Company, Inc., dated September 5, 2017, which
determined that the annual market rate rent for this stated parcel is $4,875. The parties have
reviewed the appraisal and agreed to pay an annual rental fee based on the appraisal amount. The
revised Lease Agreement is attached for BOCC approval.
PREVIOUS RELEVANT BOCC ACTION:
8/16/2017 BOCC continued to the BOCC 9/20/17 meeting for staff to obtain a market rate appraisal
on the portion of County ROW to be leased under proposed ROW Lease Agreement and Consent to
Assignment of Lease being presented for BOCC approval.
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 based on current appraisal amount.
STAFF RECOMMENDATION: Approval as noted.
DOCUMENTATION:
REVISED EXECUTED AND STAMPED Mandalay Right -of -Way Lease with exhibits (10 3 17)
Appraisal - Mandalay Lease
Certificates of Insurance (Key Marina & FL Keys Quality Foods)
Right -of -Way Lease (partially executed & legal stamped for 8-16-17)
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: $107,250.00 (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: $406.25 per month (see additional details)
Grant: N/A
County Match: N/A
Insurance Required: Yes
Additional Details: Lessee will pay $406.25 per month for a total of $4,875.00 annually. The
total rental amount for the 1st term: 7 yrs. = $34,125.00 with (3) optional consecutive 5 yr.
terms @ $24,375.00 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 $107,250.00. Lessee
has agreed to pay in advance for the first three years of the initial seven-year term which is a
total of $14,625.00 and thereafter in two-year increments for each lease term which is
$9,750.00.
REVIEWED BY:
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 Completed 08/16/2017 9:00 AM
is ai", i _ U t_
THIS RIGHT-OF-WAY LEASE AGREEMENT ("LEASE"), made and entered into
by the parties on this 18th day of October, 2017, by and between MONROE COUNTY, a
political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key
Florida 33040, and KEY MARINA i rFlorida
limited liability company,a principal addressRiley '• • Unit 155, Celebration,
Florida 34747 ("LESSEE") and FLORIDA KEYS QUALITY FOODS,Florida
corporation, whose principal address is 125 Milano Drive, Islamorada, Florida 33036, ("SUB-
1•■'1itV1&*4WII
Largo,WHEREAS, the County owns the public right-of-way along Second Avenue in Key
Monroe County,■ • 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 t944 and the early
YYrespectively;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
•
WHEREAS,on F 2004, the Originall • from Canalis to
Earthmark Companies, LLC ("Earthmark"), which assignment was approved as required b1p
of ' by Band
WHEREAS, on August BOCC approved the Lease assignment from
Oceanto Sunrise Associates, and
l,.
WHEREAS, on July 20, 2011, the BOCC acknowledged the transfer of title through a
foreclosure action fromto Morgan■ • Ocean
and approved the assignment of ■ Morgan Oceanon - same
fate; and
WHEREAS, on July 20, 2011, the BOCC acknowledged and approved the Assignment of
P
Lease ("Assignment of Lease") from Morgan Ocean Sunrise to Florida Keys Quality
r Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drive,
Islamorada, Florida 33036 ("Quality Foodsa tenant of the contiguous property and
leased right-of-way upon which the existing historical encroachment is located; and
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
7TAEJ'E'AS, the survey and site plan provided at the time of the Development
Agreement approval showed encroachment of buildings or structures beyond the original
-tescription 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
*riginal 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 Plan ("Site Plan"), attached hereto ang,
made a part hereof ("Exhibit A"), which was approved by the Monroe County Plannin!
Commission on January 27, 2017, as part of its Resolution No. P34-16; and
1117CA'.'Vi AS, Quality Foods is the current Lessee and Tenant of the leased property undM
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-of-way in Key Largo, but the term of the Lease was
Tadverte-t.tiv ow itted. a-fid fterehDre- -rever ey.ecutaf 'Fv fke -11a1XV11111 ItS t'�e V*1C "-! 1*41.
4
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
WAEREAS, Key Marina and Quality Foods entered into a Lease Agreement dated April
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 stop-s- an impervicA-js-'ti--tAir-,inp-ndn
County right-of-way.
NOW THEREFORE, IN CONSIDERATION of the mutual pron-dses 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 Original Lease dated November 12,1997, which expires on November 3T
2017, is hereby tem-iinated upon approval by the BOCC and full execution of this RO U
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LEASE. Additionally, the ROW LEASE approved by the BOCC on January 18, 20VI
4-1
between the herein parties, but never executed by the Mayor on behalf of the BOCC
hereby rescinded. The initial term of this ROW LEASE shall be for a period
seven (7) years commencing retroactively to the I Ith day of April, 2017, a
ending on the I 01h day of April, 2024, unless sooner terminated pursuant to t
provisions of this ROW LEASE. The tern-i and renewal options of this ROW LEAS,
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coincide with the same terms set forth in that certain Lease Agreement dated April I I
1
2017, between Key Marina Development, LLC and Florida Keys Quality Foods, In
recorded on July 6, 2017, in the Official Records of Monroe County in Book 2863
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 PREMISM: 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").
V 001�61 UIAZNJ[IK:. LESSEE shall pay to LESSOR the sum of Four Hundred Six
and 25/100 Dollars ($406.25) per month for a total amount of Four Thousand
Eight Hundred Seventy-five and 00/100 00) Dollars annually. LESSOR agrees
to pay in advance the total amount of Fourteen Thousand Six Hundred Twenty-five and
00/100 ($14,625.00) Dollars as payment in full for the initial three (3) years of the
seven (7) year term of this Lease, and to thereafter pay the remaining annual rental
payments in two-year increments on or before the annual renewal date of the Lease.
The initial rental payment for three (3) years shall 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 any 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 two-year incremental periods 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,
0
6. PURME: This ROW LEASE is for the purpose of reflecting the historic
encroachment upon the Second Avenue public right-of-way, of a concrete buildinc
and a frame building, existing since 1944 and the early 1960's respectively ani
allowing the use of the existing buildings and accessory structures that exist on thi;
County right-of-way as shown on the survey, a copy of which is attached herett
and made a part hereof as Exhibit"B".
7. E: 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
9. ASSIGNMENMUBLEAEE: 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 Quali
Foods, Inc., a Florida corporation, whose principal address is 125 Milano Drriv
Islamorada, Florida 33036, a tenant of the contiguous property and leased righ
-A,
of -way upon which the existing historical encroachment is located ("Quali
Foods"), so long as Quality Foods has a valid and enforceable lease with LESSE
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.
;I
c. Should LESSEE and Quality Foodsto enter into a valid lease for
contiguous property, or • for sub-
lease
be r
• The consent• 'r in this ROW• •sub -lease of leasedPremises to Quality Frra S and not to any subsequent
r prior written approval.
10. EASEMENTS: This ROW LEASE is subject to any utility easement existingr
•'leased Any r d' rr • by
shall be • iand without
1. RIGHT OF INSPECTION: LESSOR or its duly authorized agents, representatives,
or r r and all times during daylight hoursto inspect
the leased Premises r the worksr operations ofin any matterpertaining
to
this ROW LEASE.
12. INSURANCE i_i. i_M_ During the term of this ROW LEASE,
LESSEE shall procure and maintain policies of r r risk, and general
liability insurance coverage. The liability insurance coverage shall be in an amount not
less than • Hundred Thousand Dollars and 0011 ! 1l0.0 per occurrence
• Three Hundred Thousand Dollars and 11 i0 #i 1i 11 occurrence
personal death,r property damage on leased Premises. policies of
LESSOR,insurance shall name Monroe County,additional
submitshall r of procured policies required
herein prior to the effective date of this ROW LEASE and shall submit annually
thereafter written evidence of + policies to the Monroe
Countyof r 01 WhiteheadStreet, Key West, Florida40
. LESSEE
shall purchase all policies of • responsible
authorized• r businessof Florida. be financially
responsible •r any loss due to failure to obtain adequate• and the
failure to maintain such policies • rconstitute
breach of this ROW LEASE.
13. LIABILITY AND NNotwithstanding
requirements prescribed elsewhere in this agreement, LESSEE covenants and agrees
that it shall defend, indemnify,and hold the LESSOR and iand
appointed officers and employeesactions
or causes of aanylitigation,a - proceedings,•r
loss,proceedings, or other proceedings relating to any type of injury (including death),
damage, fine, penalty or business interruption,and (iii) any costs or i
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that may be asserted against, initiated with respect to, or sustained by an
indemnified party by reason of, or in connection with, (a) any activity of LESSEE
any of its employees, agents, sub -lessees in any tier, or other invitees during t
term of this Agreement, (b) the negligence or willful misconduct of LESSEE or an
#f its employees, agents, sub -lessees in any tier, or other invitees except to t
extent the claims, actions, causes of action, litigation, proceedings, costs, or expens
arise from the intentional or sole negligent acts or negligent acts in part or omissio
*f the LESSEE or any of its employees, agents, contractors, or invitees (other th
LESSEE). Insofar as the claims, actions, causes of action, litigation, proceeding
costs or expenses related to events or circumstances that occur during the term
this R 0 W LEASE, this section will survive the expiration of the term of th
ROW LEASE or any earlier termination of this ROW LEASE. The extent of liabili
is in no way limited to, reduced, or lessened by the insurance requirements containe
elsewhere within this ROW LEASE.
14. PAYMENT OF TAXES AND ASSESSMEND: LESSEE shall assume full
responsibility for and shall pay all liabilities that accrue to the leased Premises or tit.
the improvements thereon, including any and all ad valorem taxes and drainage aM
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
I
more instances upon strict performance of any one or more of the covenants, ternmn
and conditions of this ROW LEASE shall not be construed as a waiver of su
covenants, tenns, or conditions, but the same shall continue in full force and effe
and no waiver of LESSOR of any of the provisions hereof shall in any event
deemed to have been made unless the waiver is set forth in writing, signed
LESSOR.
17. UTILITY FEES: LESSEE shall be responsible for the payment of all charges 1009
the furnishing of gas, electricity, water, and other public utilities to the leas
Premises and for having all utilities turned off when the leased Premises a
surrendered. ti
18. M-INERAL-BIGHTS: This ROW LEASE does not cover petroleum or petroleu
products or minerals and does not give the right to LESSEE to drill for or devel
the same, and LESSOR specifically reserves the right to lease the leased Premises
purpose of exploring and recovering oil and minerals by whatever mea
t 41 appropriate; provided, however, that LESSEE named herein shall be fully compensal
rA
for any and all damages that might result to the leasehold interest of said LESSEE
by reason of such exploration and recovery operation.
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. PKOWWWOW����: LESSOR assumes no liability or obligation fo-
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. RREACH -OE COVENANTS, TERMS OR CON DITIONS: 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.
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.
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c. Should the buildings which extend onto the leased Premises be substantially
0
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.
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, AGAINSI 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
docune-rts.
26. J!ARTIAL 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.
27. ARCHAEOLOGICAL AND ffIST0_RI.C5IIE5: 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. SUVEREIGNTY SUBMERGED LANDS,: This ROW LEASE does not authorize
the use of any lan1s 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.
IP-9. DIJELICATE.-GRIGINALS: This ROW LEASE is executed in duplicate originak
each of which shall be considered an original for all purposes.
30. ENTIRE UNDERSTANDING: This ROW LEASE and the exhibits attached
hereto set forth the entire understanding between the parties and shall only be
amended with the prior written approval of LESSOR.
31. HAINIENANCE OF IbR&DIEMENTS: 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. GOYFRNING LAW / VENUF,: 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 to253.04, 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:
LESSORIII :
County Administrator
1100 Simonton Street
Suite 205
V 1 ev
LESSEE:
Key Marina DevelonmenA
52 Riley Road, Unit 155,
41
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 ajury 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
Z=
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
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.
12
I I I
11-FITINWR �,J.1570173 I
and year first above written.
(SEAL)
ATTEST: KEVIN MADOY,, CLERK
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KEY MARINA DEVELOPMENT, LLC
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Reproductions of this Sketch ore not valid without the signature and the original raised seal of
a Florida licensed surveyor and mapper.
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,
.31 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 Plot
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 4,V37'16" W.
Dotc shown hereon was compiled from Instrument(s) of record and does not constitute a
boundary survey.
Abbreviation Legend, FB. = Field Book; LB. = Licensed Business; M.C.R. = Monroe County
Records; No. = Number; O.R.B. = Official Records Book; P.B. = plot Book., PG. = Page; P.L.S.
= Professional Land Surveyor, P/0 = a Portion of-, P-0-8, = Pont of Beginning; P.O.C.
Point of Commencement; S.F. = Square Feet.
LOAM4119
I HEREBY CERT)FY that the attached Sketch and Description of the hereon described property is true
cnd correct to the best of my knowledge and belief as prepared under my direction. I FURTHER
CERTIFY that this Sketch and Descript4an meets the Standards of Proctlice set forth In Chapter
5J-17, Florida Administrative Code, pursuant to Section 472.027, Florida Statutes.
Date.
K&UWSEE—A—TOW, P.L.S.
Florida Registration No. 5328
AVIROM & ASSOCtATES, INC.
LB. No. 3300
!5 6'18
L I o r
=9.55
N 4302745" E
3.27'
N47*21 "06"E 3.
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SKETCH AND DESCRIFMON
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(O-R-9. 2539/1634 M.C.R.)
20.40 S0UPiWESTMLY--'
OF AND PARALI.EL Y"AlH
NORIHEASTERLY
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A MARKET VALUE AND
RENTAL RATE ESTIMATE OF
A 3,249 SQUARE FOOT
RIGHT OF WAY LEASE
LOCATED AT
MILE MARKER 97.5, OVERSEAS HIGHWAY
KEY LARGO
MONROE COUNTY, FLORIDA
PREPARED FOR
PATRICIA EABLES
ASSISTANT COUNTY ATTORNEY
MONROE COUNTY ATTORNEY'S OFFICE
1111 12TH STREET, SUITE 408
KEY WEST, FL 33040
EFFECTIVE DATE OF VALUATION
AUGUST 23, 2017
TRENT MARR, MAI, SRPA
STATE -CERTIFIED GENERAL REAL ESTATE APPRAISER # RZ 514
MARR & ASSOCIATES APPRAISAL COMPANY, INC.
4I01c,
TRENT MARK, MAI, SRPA
State -Certified General Real Estate Appraiser # RZ 514
trentmarrAembargmail.com
September 5, 2017
Patricia Eables
Assistant County Attorney
Monroe County Attorney's Office
I I 1112th Street, Suite 408
Key West, FL 33040
Phone (850) 342-1114
2665 Aucilla Road, Monticello, FL 32344
81800 Overseas Highway, Islamorada, FL 33036
Re: A market value and rental rate estimate for a right-of-way located adjacent to Mandalay Marina,
mile marker 97.5, Key Largo, Florida.
Dear Patricia Eables,
At your request, the investigations and analyses necessary to form an opinion of the market value and
rental rate estimate of the Right of Way lease adjacent to the southeast corner of East Second Street and
Second Avenue, near mile marker 97.5 on the Island of Key Largo. The lease parcel is slightly irregular
and measures 20.4 feet by 157 +/- feet, totaling 3,294 square feet. The parent or larger parcel is
improved with a marina. I have ignored the improvements and this appraisal is based on the
Hypothetical Condition that the site is vacant.
To the best of my ability, the analysis, opinions, and conclusions were developed and this appraisal
report was prepared in accordance with the standards and reporting requirements of the Appraisal
Institute, Uniform Standards of Professional Appraisal Practice, dated January 2016.
Based upon a personal inspection of the subject property, the subject neighborhood and all comparable
data, as well as upon the investigations and analyses undertaken, I have formed the opinion that, as of
August 23, 2017, subject to the assumptions and limiting conditions set forth in this report, the market
value and rental rate estimate of the subject parcel are:
MARKET VALUE ESTIMATE
NINETY SEVEN THOUSAND FIVE HUNDRED DOLLARS
($97, 500)
ANNUAL RENT
FOUR THOUSAND EIGHT HUNDRED SEVENTY FIVE DOLLARS
($4,875)
Respectfully Submitted,
Marr & Associates Appraisal Company, Inc.
7,ur�-
Trent Marr, MAI, SRPA
State -Certified General Real Estate Appraiser # RZ 514
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
EXECUTIVE SUMMARY
PROJECT INFORMATION: R-O-W lease adjacent to Mandalay Marina
ADDRESS: Mile marker 97.5, Key Largo, Florida
OWNER OF RECORD: The parent parcel (marina) is owned by
Key Marina Development, LLC
APPRAISER: Trent Marr, MAI, SRPA
DATE OF VALUEANSPECTON: August 23, 2017
DATE OF REPORT: September 5, 2107
INTEREST APPRAISED: Fee Simple
PARCEL SIZE: 3,294 (R-O-W lease)
PARCEL ACCESS: Parcel is part of Second Avenue and accesses both East
Second Street and Overseas Highway
ZONING/LAND USE: SC (Suburban Commercial)
MARKET VALUE: $97,500
ANNUAL RENT: $4,875
COMMENTS:
I have valued the subject based on the across the fence method technique. I have assumed the adjacent
marina is the parent parcel. The marina is improved with a restaurant, dock and other improvements.
For valuation purposes, I have assumed the hypothetical condition that the marina site is vacant.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
LOCATION MAPS
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C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
Aerial Photograph
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C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SUBJECT PHOTOGRAPHS
View of parent parcel northwesterly side
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West side of R-O-W Lease looking west on second Avenue
Packet Pg. 2250
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SUBJECT PHOTOGRAPHS
View of R-O-W Lease looking easterly towards the Atlantic Ocean
Parent Parcel on left
Aerial View of R-O-W Lease Parcel
Packet Pg. 2251
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc.�
CERTIFICATE OF VALUE
The undersigned does hereby certify that, to the best of my knowledge and belief that:
The statements of fact contained in this appraisal report, upon which the analysis, opinions and
conclusions expressed herein are based, are true and correct.
The reported analysis, opinions and conclusions are limited only by the reported assumptions and
limiting conditions, and are my personal, unbiased professional analyses, opinions, and conclusions.
I have no present or prospective interest in the property that is the subject of this report and I have no
personal interest or bias with respect to the parties involved.
My compensation is not contingent upon the reporting of a predetermined value or direction in value
that favors the cause of the client, the amount of the value estimate, the attainment of a stipulated result,
or the occurrence of a subsequent event. This appraisal assignment was not based upon a requested
minimum value, a specific value, or the approval of a loan.
The reports and analyses, opinions and conclusions were developed, and this report has been prepared
in conformity with the requirements of:
- the Code of Professional Ethics and the Standards of Professional Practice of the Appraisal Institute
- the State of Florida requirements for state -certified appraisers
- Uniform Standards of Professional Appraisal Practice (USPAP, (January 2016-2017)
I have complied with the USPAP competency provision.
This appraisal report sets forth all of the limiting conditions imposed by the terms of this assignment or
by the undersigned affecting the analyses, opinions and conclusions contained in this report.
No one provided significant professional assistance to the persons signing this report, unless
specifically noted herein.
Mary Marr provided professional assistance in the verification of comparable data and reviewing the
report for grammatical and typographical errors as well as consistency throughout the report.
I have performed no services, as an appraiser or in any other capacity, regarding the property that is the
subject of this report within the three-year period immediately preceding acceptance of this assignment.
The use of this report is subject to the requirements of the Appraisal Institute relating to review by its
duly authorized representatives. Additionally, it is subject to review by the State of Florida relating to
review by the Real Estate Appraisal Subcommittee of the Florida Real Estate Commission.
As of the date of this report, Trent Marr has completed the requirements of the continuing education
program of the Appraisal Institute.
September 5, 2017
Trent Marr, MAI, SRPA Date
State -Certified General Real Estate Appraiser # RZ 514
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
ASSUMPTIONS AND LIMITING CONDITIONS
The legal description used in this report is assumed to be correct.
No survey of the properties has been made by the appraiser and no responsibility is assumed in
connection with such matters. Sketches in this report are included only to assist the reader in
visualizing the properties.
No responsibility is assumed for matters of legal nature affecting title to the properties nor is an opinion
of title rendered. The title is assumed to be good and marketable.
Information and data furnished by others is usually assumed to be true, correct and reliable. When such
information and data appears to be dubious and when it is critical to the appraisal, a reasonable effort
has been made to verify all such information. No responsibility for the accuracy of any information
furnished by others to the Appraiser is assumed by the Appraiser.
All mortgages, liens, encumbrances, leases, and servitude have been disregarded unless so specified
within the report. The property is appraised as though under responsible ownership and competent
management.
It is assumed that there are no hidden or unapparent conditions of the properties, subsoil, or structures
which would render it more or less valuable. No responsibility is assumed for such conditions or for
engineering which may be required to discover them. Unless noted, all mechanical components are
assumed to be in operable condition and status standard for properties of the subject type. Conditions
of heating, cooling, ventilating, electrical, and plumbing equipment is considered to be commensurate
with the condition of the balance of the improvements unless otherwise stated.
It is assumed that there is full compliance with all applicable federal, state and local environmental
regulations and laws unless noncompliance is stated, defined and considered in the appraisal report.
It is assumed that all applicable zoning and use regulations and restrictions have been complied with,
unless a non -conformity has been stated, defined and considered in the appraisal report.
It is assumed that all required licenses, consents or other legislative or administrative authority from
any local, state, or national governmental or private entity or organization have been or can be obtained
or renewed for any use on which the value estimate contained in this report is based.
It is assumed that the utilization of the land and improvements is within the boundaries or properties
lines of the properties described and that there is not encroachment or trespass unless noted within the
report.
The appraiser will not be required to give testimony or appear in court because of having made this
appraisal, with reference to the properties in question, unless arrangements have been previously made
thereto.
HYPOTHETICAL CONDITION
This appraisal is based on the hypothetical condition that the parent parcel is vacant.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
PROPERTY IDENTIFCATION
The subject is located east (ocean side) of Overseas Highway near mile marker 97.5, Key Largo
Florida. Key Largo is part of unincorporated Monroe County. The subject site is a right -of- way and
abuts a commercial marina, with frontage along the Atlantic Ocean. Based on the surveyor sketch the
site is approximately 20.4 X 157 +/- totaling 3,249 square feet. Refer to the sketch for a depiction of
the site and dimensions.
SCOPE OF THE APPRAISAL
The scope of the appraisal included the inspection of the subject property, subject neighborhood and
comparable properties. The site was inspected on August 23, 2017. The subject property was valued
using the across the fence method technique. The across the fence method technique is discussed on the
following page.
The local MLS, Monroe County Property Appraisers web site and Loopnet were used to research for
comparable sales. All of the sales were located in the subject's county and were considered good
indicators of value. All of the sales were verified by either the local MLS, agent, broker, buyer or seller
involved with the sale. The data for each sale was analyzed on a price per square foot basis and
compared to the subject. The sizes for the comparables were taken from the Monroe County Property
Appraisers web site and confirmed with the buyers, sellers or agents.
DEFINITION OF MARKET VALUE
The most probable price which a property should bring in a competitive and open market under all
conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and
assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of
a sale as of a specified date and the passing of title from seller to buyer under the following conditions:
1. Buyer and seller are typically motivated;
2. Both parties are well informed or well advised, and acting in what they consider their own
best interests;
3. A reasonable time is allowed for exposure in the open market;
4. Payment is made in terms of cash in United States dollars or in terms of financial
arrangements comparable thereto; and
5. The price represents the normal consideration for the property sold unaffected by
special or creative financing or sales concessions granted by anyone associated with
the sale2.
2 Supplemental Appraisal Standards for Board of Trustees Land, Division of State Lands, (2012), Page 7
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
DATE OF VALUE ESTIMATE
The date of value estimate and date of inspection was August 23, 2017. The date of this report is June
September 5, 2017.
INTENDED USER AND USE OF THE REPORT
The intended user of this report is the Monroe County Attorney's Office. The intended use is to
establish a negotiating price.
CLIENT
Patricia Eables
Assistant County Attorney
Monroe County Attorney's Office
1111 12th Street, Suite 408
Key West, FL 33040
HISTORY
The parent parcel is improved with a marina and sold in 2013 for $2,100,000. The subject right -of- way
parcel is being leased for $600 per year.
PURPOSE OF THE REPORT
The purpose of the report was to estimate the market value and rental rate estimate of the right-of-way
based on an across the fence method of valuation.
PROPERTY RIGHTS APPRAISED
The property rights being appraised are the fee simple estate defined as:
"Absolute ownership unencumbered by any other interest or estate, subject only to the limitation
imposed by the governmental powers of taxation, eminent domain, police power, and escheat.i3
ACRO S S THE FENCE VALUE
The definition if of the across the fence method technique is summarized as follows:
A land valuation method often used in the appraisal of corridor. The across the fence method is used to
develop a value opinion based on the comparison to abutting land4.
3 Appraisal Institute, The Dictionary ofReal Estate Appraisal, 3`a Addition (Chicago: Appraisal Institute, 1993) Page 140
4 Appraisal Institute, The Dictionary ofReal Estate Appraisal, (Chicago: Appraisal Institute), 2010, Page 3
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
LARGER OR PARENT PARCEL
In using the across the fence value method, the appraiser must determine the larger or parent parcel.
The larger or parent parcel is the parcel that would benefit from the use of the filled, surplus parcel or
R-O-W parcel.
The definition of the Larger Parcel is:
In governmental land acquisitions, that tract or tracts of land that are under the beneficial control of a
single individual or entity and have the same, or an integrated, highest and best use. Elements for
consideration by the appraiser in making a determination in this regard are the contiguity, or proximity,
as it bears on the highest and best use of the property, unity of ownership, and unity of highest and best
use. In most states, unity of ownership, contiguity, and unity of use are the three conditions that
establish the larger parcel for the consideration of severance damages. In federal and some states cases,
however, the contiguity is sometimes subordinated to unitary uses.
The right of way is being used in conjunction with the adjacent marina. The zoning is the same as well
as the use, thus, the marina is considered the larger parcel.
OWNER OF RECORD (Parent Parcel)
Key Marina Development LLC
52 Riley Road, Unit 155
Kissimmee, FL 34747
EXPOSURE TIME
Exposure time is defined as.
- The time a property remains on the market.
- The estimated length of time the property interest being appraised would have been offered on the
market prior to the hypothetical consummation of a sale at market value on the effective date of the
appraisal; a retrospective estimate based on an analysis of past events assuming a competitive and
open market6.
This analysis considers Exposure Time at a market related price such as the estimated market value in
this report. The subject being appraised is a right -of- way. Assuming the right -of- way is assembled
with the marina, the exposure time for the marina would be 24-36 months.
5 Appraisal Institute, The dictionary ofReal Estate Appraisal, (Chicago; Appraisal Institute), 2010 5"' edition, page 110
6 The Dictionary of Real Estate Appraisal, published by the Appraisal Institute 2010, 5"' edition, page73
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
LEGAL DESCRIPTION
The subject has a lengthy metes and bounds legal description. The legal description was provided by
the client and reads as follows.
SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT TO LEASE
(O.R.B.2M9, PG.1634, M.CRR.)
KEY LARGO, MONROE COUNTY, FLORIDA
LAND DESCRIPTION:
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, Slack 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 sold Second Avenue with the centerline of East
Second Street, according to sold Plat; thence S 4417'16" E along the centerline of said Second
Avenue. a distance of 25.00 feet to a point an the southwesterly projection of the southeasterly
right—of—way line of East Second Street; thence N 4517'46" 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 sold Second Avenue, said line also being the southwesterly
limits of said Amendment to Lease; thence 5 4437'15" E along said parallel line and said
southwesterly limits of sold Amendment to Lease, 19.99 feet to a point on the southeasterly
limits of o proposed cul—de—sac and a point on a non —tangent curve, concave to the east,
having a radius of 20.75 Net and a central angle of 17'20'06" (a radial lime bears
5 75'05'47" E from said point), sold paint also being the POINT OF THE BEGINNING; thence
northerly along said southeasterly limits of proposed cut —de —sac long 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 o non —tangent curve, concave to the northwest, having a
radius of 50.00 feet and a central angle of 10'56'16" (a radial line hears S 4824'43" E to said
point); thence northeasterly along the arc of sold non --tangent curve a distance of 9.55 feet to
the northeasterly line of sold Amendment to Lease and a point of cusp with a non —tangent
curve, concave to the northeast, having a rddlus of 25.00 feet and: o central angle of 2034'30"
(a radial I'ne bears S 55'57'14" W from sold 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 sold northeasterly right—of—way, line of sold Second Avenue, a distance of 151.90 feet
to the southeasterly limits of sold Amendment to Lease; thence S 452244* W along said
southeasterly limits of said Amendment to Lease, a distance of 20.40 feet to sold line being
20.40 feet southwesterly of and parallel with the northeasterly right —of --way line of said Second
Avenue and sold southwesterly limits of said Amendment to Lease; thence N 4417'15" W, along
sold parallel line and sold 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, Fiorida, containing 3,249 square feet
(0.075 acres), more or less.
WITHOUT SHEETS 1- 3
AVIROM & ASSOCLATES, INC. JOB 9: 9881-6
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C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
NEIGHBORHOOD DESCRIPTION
The subject property is located in Key Largo, near mile marker 97.5. Key Largo begins at mile marker
106.5 and is considered the subject's northern boundary line. Commercial activities decrease near mile
marker 95 and is considered the subject's southern boundary line. Key Largo is located along the
southern tip of South Florida, approximately 60 miles south of Downtown Miami. The immediate
neighborhood consists of commercial and residential to the west, south and north and the Atlantic
Ocean to the east.
Key Largo is located along the southern tip of south Florida, approximately 60 miles south of
Downtown Miami and is the first major development south of Florida City (located 20 miles north).
Key Largo is the largest (in square miles) Island in the Florida Keys. Key Largo begins at Jewfish
Creek (mile marker 108) and ends in Tavernier, and is approximately 30 miles long. The widest
portion of Key Largo is approximately 3 miles. Jewfish Creek is located at mile marker 108 and starts
the beginning of Key Largo, therefore, this is considered the neighborhoods northern boundary. Mile
marker 97, which is approximately 1 mile south of the subject, is considered the subject's southern
boundary line. The Atlantic Ocean and Florida Bay are located to the east and west of the subject
neighborhood respectively and are considered the east and west neighborhood boundary lines.
DEVELOPMENT TRENDS
The subject is located a few miles south of Port Largo. Port Largo is located at mile marker 100 and is
the most developed area of Key Largo. Port Largo has several hotels and motels in the area. The larger
hotels, consists of Holiday Inn, Marriot Courtyard Inn, Best Western, Marina Del Mar and Bayside
Resort. There are numerous owner operated motels in the area with less than 15 units.
Waldorf Plaza is located in downtown Key Largo and consists of a 55,880 square foot shopping center.
Anchor tenants consist of Divers Direct and Office Depot. Several other specialty shops are located
within this center. Several other shopping centers within the neighborhood include Central Plaza, Pink
Plaza, Plaza 106 and 106 Plaza. Tradewinds Shopping Center is the largest shopping center in Key
Largo and is located a few miles north of the subject near mile marker 101. This center consists of
approximately 160,000 square feet of gross lease -able area with K-Mart and Publix as anchor tenants.
RECREATIONAL ACTIVITIES
The major attraction of the Florida Keys as well as Key Largo, is the mild climate, fishing, diving and
water activities. One of the major attractions of Key Largo is John Pennekamp State Park. John
Pennekamp State Park attracts in excess of 1 million visitors by land and sea each year. John
Pennekamp Park is approximately 78 square miles and is one of the few living reefs along Americas
shoreline. Key Largo offers excellent fishing and diving activities and is one of the primary attractions
to the area.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
EDUCATION
There is one private and one public high school in the Upper Keys. Island Christian is a private school
teaching grades kindergarten-12 and is located at mile marker 83. Coral Shores High is the only public
high school for the Upper Keys and is located at mile marker 90. Key Largo Elementary and Middle
School is located in Upper Key Largo at mile marker 105. Also located in Coral Shores High School
are classes held for Florida Keys Community College. Churches of numerous denominations are
located within the neighborhood, including Baptist, Methodist, Church of Christ, Catholic, etc.
ACCESS
The subject is part of Second Avenue. Second Avenue is accessed by Overseas Highway or East
Second Street. Overseas Highway is the main thoroughfare for all of Monroe County, extending
approximately 120 miles from Key West, mile marker 0 to South Dade County. Overseas Highway
varies in 2 - 4 lanes; however, through all of Key Largo it is 4 lanes. East Second Street is a short street
that extends a few hundred feet and serves both commercial and residential properties.
SUMMARY
Overall, the Keys' mild climate, living reefs and excellent fishing make it one of the major tourist
attractions in America. As with most of the US economy, Monroe County reached its real estate
market height in 2005 and early 2006, and had since declined. This decline has stopped, with demand
and prices increasing for most types of properties. Because of the mild climate, prestige waters and
limited land available for development, demand is expected to increase.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
SITE DESCRIPTION
LOCATION
The subject consists of a right of way and the parent parcel consists of a marina. The parcels are
located at mile marker 97.5, on the Island of Key Largo. The right-of-way has frontage along East
Second Street and Second Avenue. The parent parcel has frontage along Second Avenue.
ACCESS
The sites are accessible from East Second Street and Second Avenue. Main access for the Florida Key
is via Overseas Highway. Overseas Highway begins in South Dade County and extends 120 miles to
Key West, Florida.
DIMENSIONS, SIZE AND SHAPE
The right of way is mostly rectangular and is curvilinear along the northwest corner. The right-of-way
measures 151.90 along the northerly side, 156.84 along the southerly side and 20.4 along the
northeasterly side. The southwest side is irregular due to the curvilinear dimensions. Based on the
sketch drawn by Keith M. Chee-A.-Tow, surveyor, the site totals 3,249 square feet. The parent parcel
is irregular and based on the property record card totals 24,275 square feet.
TOPOGRAPHY AND VEGETATION
Both the right -of- way lease and the parent parcel are basically cleared of all vegetation.
UTILITIES
Utilities are available to the sites. This includes electricity by Florida Keys Electric, Water by
Florida Keys Aqueduct, telephone by AT & T and trash services by Monroe County. The county has
recently installed a central sewer system throughout the Florida Keys.
APPURTENANCES
The marina / restaurant are encroaching on to the right of way and abut the northeast side. The parent
parcel is improved with a marina and restaurant. I have disregarded the improvements in my analysis.
WATER FRONT
The larger parcel has frontage along the Atlantic Ocean.
ZONING — SUBURBAN COMMERCIAL (SC)
Both the subject (right of way) and the parent parcel are zoned SC. The purpose of the SC district is to
establish areas for commercial uses designed and intended primarily to meet the needs of the immediate
planning area in which they are located. This district should be established at locations convenient and
accessible to residential areas without use of U.S. I./Overseas Highway.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
The SC zoning allows a variety of commercial uses. Some of the permitted uses under the zoning code
are commercial retail and offices less than 2500 square feet, institutional residential uses with less than
10 dwelling units or rooms, commercial apartments with less than 6 units, hotels with 25 or fewer
rooms, campgrounds containing at least 10 acres, heliports and marinas meeting certain requirements.
Commercial recreational uses permitted are limited to bowling alleys, tennis and racquetball courts,
miniature golf and driving ranges, theaters, health clubs and swimming pools. Institutional and public
buildings and uses are also permitted under the SC zoning code.
SITE CONCLUSION
The subject site and larger (parent) parcel are located on Key Largo at mile marker 97.5 with frontage
along the Atlantic Ocean. The right -of -way totals 3,249 square feet and the larger parcel totals 24,275
square feet. The surrounding neighborhood consists of a variety of commercial uses, single family
homes and multi -family properties. The sites conform to the surrounding neighborhood.
HIGHEST AND BEST USE
Highest and best use is defined as:
"The reasonably probable and legal use of vacant land or an improved property, which is
physically possible, appropriately supported, financially feasible, and that results in the
highest value. The four criteria the highest and best use must meet are legal
permissibility, physical possibility, financial feasibility and maximum productivity"7.
PHYSICALLY POSSIBLE USES
Physically possible uses are those uses which are physically possible on the site. These uses change
with the size, shape and terrain of the property in which development is to take place. The right of way
lease totals 3,249 square feet. Physically the site is not large enough to developed. The right of way
lease could be used for parking, access to the adjacent property or assemblage with one of the adjacent
properties.
LEGALLY PERMISSIBLE USES
Legally permissible uses are those uses which are legally permissible on the site. These uses vary
with the type of zoning, building codes and deed restrictions pertaining to the property being
appraised. The right-of-way lease is zoned SC (Suburban Commercial) and allows numerous
commercial uses.
FINANCIALLY FEASIBLE/MAXIMALLY PRODUCTIVE
For any use to be the highest and best use of a site, it must be financially feasible. That is, it must
produce a return (profit) after construction which exceeds the total cost of construction and total
development by such an amount that it would induce a developer/investor into undertaking the project.
The subject consists of a right-of-way and is not developable by itself. The highest and best is
assemblage with the adjacent marina.
4 The Dictionary of Real Estate Appraisal, by the Appraisal Institute (3`a addition, 1993), page 171
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
SKF—TCH AND OESC.RIPTiON
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C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
VALUATION OF THE SUBJECT PROPERTY
SALES COMPARISON APPROACH
This approach is based on the principles of supply and demand, substitution, balance and externalities,
all of which affect the sales price of a property. The relationship between the supply of a type of
property to its level of demand is a determining factor in its selling price. The principle of balance
relates to the tendency of the market to constantly strive for an equilibrium between supply and
demand.
"To apply the sales comparison approach, an appraiser follows a systematic procedure:
1. Research the market to obtain information on sales transactions, listings, and offers to purchase
or sell properties that are similar to the subject property in terms of characteristics such as
property type, date of sale, size, location, and zoning.
2. Verify the information by confirming that the data obtained are factually accurate and that the
transactions reflect arm's-length market considerations.
3. Select relevant units of comparison (e.g., income multipliers or dollars per acre or per square
foot) and develop a comparative analysis for each unit.
4. Compare comparable sale properties with the subject property using the elements of comparison
and adjust the sale price of each comparable appropriately to the subject property or eliminate
the property as a comparable.
5. Reconcile the various value indications produced from the analysis of comparables into a single
value indication or a range of values. In an imprecise market subject to varying occupancies
and economies, a range of values may be a better conclusion than a single value estimate.i8
The subject consists of a right-of-way lease and is being used in conjunction with the adjacent marina.
The sales comparison approach was considered the most reliable method to value the subject property.
There were no recent vacant water front sales found in the Upper Keys, therefore, the sales search was
expanded to the Middle and Lower Keys. The following sales were considered the most similar to the
subject found in the last several years. The following pages supply the comparable sales that were
considered most similar to the subject, along with a location map, summary chart, explanation of
warranted adjustments and final value conclusion.
s
Appraisal Institute, The Appraisal ofReal Estate, 1 Oth Edition (Chicago: Appraisal Institute, 1992) Page 371
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SALE ONE
PROPERTY TYPE:
Commercial Highway
SALES PRICE:
$750,000
DATE OF SALE:
9-15
GRANTOR:
Gerald A. Droney
GRANTEE:
Forestek, LLC
RECORDED:
OR Book 2762, Page 1948, Monroe County
LOCATION:
Bayside, mile marker 88.7, Key Largo, Florida.
PARCEL #:
00417330, 00417320, 00417310 & 00417300
ZONING: HC (Highway Commercial)
IMPROVEMENTS: 1,000 +/- shed type building
PARCEL SIZE: 48,000 square feet
PRICE PER SQ FT: $ 15.63
TERMS OF SALE: Cash
ARMS LENGTH: Yes
LEGAL DESCRIPTION: Lots 20-23, Block 11 Key Heights Section 2, Platbook 3,
Page 159 of the Public Records of Monroe County.
COMMENTS:
The buyers originally planned to use this site for parking for their nearby hardware store. The sales
price of $750,000 was for the real estate only, inventory and equipment was purchased for an additional
$50,000. The shed was in poor condition.
Packet Pg. 2264
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SALE TWO
PROPERTY TYPE:
Commercial Fishing Water front
SALES PRICE:
$400,000
DATE OF SALE:
12-15
GRANTOR:
Benjamin E. Roberts
GRANTEE:
Commercial Fish Inc.
RECORDED:
OR Book 2772, Page 1307, Monroe County
LOCATION:
Oceanside, mile marker 54, Coco Plum, Marathon
PARCEL #:
00100750-000107
ZONING:
MU (Mixed Use)
IMPROVEMENTS:
Chain Link Fence and wood dock
PARCEL SIZE:
12,050 square feet, plus 5,227 square feet of bay bottom
PRICE PER SQ FT:
$33.19 (excludes bay bottom)
TERMS OF SALE:
Cash
ARMS LENGTH:
Yes
LEGAL DESCRIPTION:
Lot 7 Lime Grove Estate (unrecorded), Coco Plum Key,
Monroe County, Florida.
COMMENTS:
The agent indicated this site was leased to a friend of the owner at $1,000 per month. The site was for
commercial fishing and has an existing dock. The site is located on the northerly end of incorporated
Marathon in an area referred to as Coco Plum.
Packet Pg. 2265
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SALE THREE
PROPERTY TYPE:
Commercial Highway
SALES PRICE:
$675,000
DATE OF SALE:
8-16
GRANTOR:
Raymond A. Warner Senior Living Trust
GRANTEE:
MF Key Largo, LLC
RECORDED:
OR Book 2814, Page 737, Monroe County
LOCATION:
Bayside, mile marker 100, Key Largo, Florida.
PARCEL #:
00088220-000000
ZONING:
SC (Suburban Commercial)
IMPROVEMENTS:
Dated office building built in the 1940s or 1950s
PARCEL SIZE:
15,000 square feet
PRICE PER SQ FT:
$45.00
TERMS OF SALE:
Cash
ARMS LENGTH:
Yes
LEGAL DESCRIPTION:
Lengthy metes and bounds. The site is located in part of
the NW 1/4 of the NW 1/4 of Section 33, Township 61
South, Range 39 East, Monroe County.
COMMENTS:
This site is located at mile marker 100 within the central business district of Key Largo. The site was
improved with a dated office building, the building was razed and a Mattress Firm store is currently
under construction. The agent indicated that it took the buyer over a year to obtain the permits.
Packet Pg. 2266
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
SALE FOUR
PROPERTY TYPE:
Water front Marina
SALES PRICE:
$375,000
DATE OF SALE:
8-17
GRANTOR:
Glenda Rentz
GRANTEE:
Frank Skrupa
RECORDED:
Recent sale, no recording available
LOCATION:
Gulfside, mile marker 10, Big Coppitt Key, Florida.
PARCEL #:
00150970-000000 & 00150960-000000
ZONING:
SC (Suburban Commercial)
IMPROVEMENTS:
None
PARCEL SIZE:
14,400 square feet
PRICE PER SQ FT:
$26.04
TERMS OF SALE:
Cash
ARMS LENGTH:
Yes
LEGAL DESCRIPTION:
Lots 9 & 10, Block 11, Big Coppitt Key, Platbook 4, Page
50 of the Public Records of Monroe County.
COMMENTS:
This site is located in the Lower Keys 10 miles northbound of Key West. Big Coppitt Key is primarily
a residential area for commuters to Key West. The area along Overseas is developed with commercial
properties. This site was being used for boat storage at the time of sale. The buyers are applying for
permits for dry rack boat storage.
Packet Pg. 2267
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Inc. N.3.b
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Packet Pg. 2268
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
VALUATION OF THE SUBJECT PROPERTY
SUMMARY OF SALES
Sub'ect
Sale 1
Sale 2
Sale 3
Sale 4
Sale Price
$750 000
$400 000
$675 000
$375 000
Market
Conditions
9-15
12-15
8-16
8-17
Location
MM 97.5
MM 88.7
MM 54 Coco
Plum
MM 100
MM 10
Key Largo
Plantation Key
Marathon
Key Largo
Big Coppitt
Street
Second
Overseas
Avenue A
Overseas
Overseas
Avenue
Highway
Highwav
Highway
Distance from
8.8 miles
43.5 miles
2.5 miles
87.5 miles
Subject
south
south
north
south
Larger Parcel
Size
24,275 sf
48,000 sf
12,050 sf
15,000 sf
14,400 sf
Zoning
SC
HC
MU
SC
SC
Waterfront
Ocean Front
No
Yes
No
Yes
Highway
Frontage
No
Yes
No
Yes
Yes
Im rovements
Assume No
Shed
Dock
Dated Office
Vacant
Price/SF
$15.63
$33.19
$45.00
$26.04
* excludes bay bottom or submerged lands
The following chart summarizes the major differences between the subject and the comparables. Due
to the lack of sufficient sales, an exact dollar amount of an adjustment could not be supported and
would be unreliable. Therefore, each comparable was given either a negative, positive or equal sign in
order to compare it to the subject. If the comparable was inferior to the subject it required an upward
adjustment, thus, a plus sign was used. If the comparable was superior to the subject it required a
downward adjustment, thus a negative sign was used. An equal sign required no adjustment.
Adjustments
Sale 1
Sale 2
Sale 3
Sale 4
Market Conditions
Conditions of Sale
Location
=
_
- -
+ +
Size
+
-
-
-
Zoning
Waterfront
+ +
_
+ +
_
Highway Frontage
-
Improvements
Net Adjustments
+ +
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Inc. N.3.b
SALES ANALYSIS
UNIT OF COMPARISON
The sales price range from $375,000 to $750,000, with per square foot prices ranging from $15.63 to
$45.00. Typically commercial sites are purchased on a price per square foot basis. Thus, all sales were
compared to the subject on a price per square foot.
FINANCING
All of the sales sold for cash or had typical market financing. Therefore, no adjustments were required.
MARKET CONDITIONS
Market condition refers to the appreciation or depreciation in a property over a period of time.
The subject's market area has experienced strong demand and an increase in prices over the past few
years. The sales occurred from September 2015 thru August 2017. All of the sales were relatively
recent and based on matched pairs analysis amongst the sales there was no support for an adjustment.
CONDITIONS OF SALE
Adjustments for conditions of sale usually reflect the motivation of the buyer and seller. A sale may be
transacted at a below market price if the seller needs cash in a hurry. A financial business or family
relationship between the parties may also affect the price of a property. Although conditions of sale are
often perceived as applying only to sales that are not arm's-length transactions, some arms -length sales
may reflect atypical motivation or sales conditions due to unusual tax considerations, sale at legal
auction, lack of exposure to the open market or eminent domain proceedings. All sales were arms
length transactions and no adjustments were made.
LOCATION
The subject is located in the Upper Keys near mile marker 97.5. Sale 1 is located on Plantation Key and
sale 2 is located on Coco Plum Key. Both of these locations were considered similar to the subject and
required no adjustments. Sale 3 is located in the prime commercial sector or Key Largo and is superior
in location to the subject, thus sale 3 was adjusted down. Sale 4 is located in the Lower Keys on the
island of Big Coppitt Key; this area of the Lower Keys is primarily comprised of commuters who work
in Key West. Overall, the area is inferior to the Upper Keys and sale 4 required an upward adjustment
for location.
PARCEL SIZE
The subject (parent parcel) totals 24,275 square feet and is within the middle range of the sales. The
sales ranged from 12,050 square feet to 48,000 square feet. Sale 1 is the largest sale and had the lowest
price per square foot. Therefore, based on match pairs analysis amongst the sales, sale 1 required a
upward adjustment and sales 2, 3 and 4 required downward adjustments.
ZONING
The subject is zoned SC (Suburban Commercial). All of the sales had similar commercial zonings and
required no adjustments.
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Companv,Ina N.3.b
WATERFRONT
The subject (parent parcel) site has frontage along the Atlantic Ocean. Sales 2 and 4 had water frontage
and required no adjustments. Sales 1 and 3 were non -water front sites and therefore were inferior to the
subject requiring upward adjustments.
HIGHWAY FRONTAGE
The subject is located on a secondary street with no visibility from Overseas Highway. Sale 2 is
located on a secondary street on Coco Plum and was similar to the subject, thus, requiring no
adjustments. Sales 1, 3 and 4 had frontage along Overseas Highway and were superior to the subject,
thus, requiring downward adjustments.
IMPROVEMENTS
The parent or larger parcel is improved with a marina. For valuation purposes, I have assumed the
parent parcel is vacant. Sales 1 and 4 were vacant and therefore, required no adjustments. Sale 2 was
improved with a boat dock and was superior. Sale 3 was improved with a dated office building,
although the building was dated, the improvement contributed value because they could be re -built.
Thus, sales 2 and 3 required downward adjustments.
CONCLUSION OF VALUE
Summary of Adjustments
Subject
Sale 1
Sale 2
Sale 3
Sale 4
Sales Price/Square Foot
$15.63
$33.19
$45.00
$26.04
Net Adjustment
+ +
The sales price per square foot ranged from $15.63 to $45.00 per square foot. Sale 1 was similar in
locational characteristics. However it was least similar in size and was non -waterfront. Therefore, sale 1
was considered to reflect the lower range. Sale 3 was located in the downtown business district of Key
Largo and was considered far superior to the subject. Thus, sale 3 was considered to reflect the upper
range. Sales 2 and 4 were least similar in location; however both sales were water front and therefore,
considered the best indicators of value. Thus, with most weight placed on sales 2 and 3 the subject's
market value of the parent parcel was estimated at $30.00 per square foot. Based on the across the
fence method of valuation, the subject's market value was estimated as follows.
3,249 square feet (leased parcel) X $30.00 per square foot = $97,470
Rounded to: $97,500
C2273-Right Of Wav Lease Mandalav, Kev Largo, Florida Marr & Associates Appraisal Com an Ina�
RENTAL RATE ESTIMATE
The rental rate for the subject was estimated by multiplying a market oriented rate by the subject's
market value estimate. The most reliable rate would be a land capitalization rate. However, arm's
length market oriented rates are virtually non-existence in the Florida Keys. With the lack of land
capitalization rates, alternative investment rates were considered. The following chart summarizes
alternative investments.
July 2017
Prime Rate
4.25
US 10 Year Bond
2.27
US 30 Year Bond
2.84
Municipal Tax Exempts (A)+
3.57
Corporate Bonds (A)+
3.87
Corporate Bonds (Baa)+
4.39
I have also reviewed the PWC Real Estate Investor Survey 2017 and land capitalization rates provided
by Real Rates. Based on the surveys the average building capitalization rates for improved properties
and the land capitalization rates are summarized on the following charts.
Regional CBD
Mall Office Warehouse Apartm
Overall Cap Rate 6.13 5.55 5.37 5.33
Residual Cap Rate 6.70 6.11 6.03 5.75
Realty Rates — Land Capitalization Rates
Que...
Survey
Category
Subcategory
Peri...
Avg ...
Low ...
High ...
DG
R' S
Lani
S.ni.''_ a: Fl•j ose
L'. 1 SC
S.4;"
2. 15-'c
116. 07-:_
G
Re Ratss
Lan-
Reta'. _a,iC
2 i�
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1AG
1",8 Tc
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Rea _ Dc:-
LL''lll:
Re.te It L,��d
2 17-30
8.45r
3. 57n
15.35`
C
Rea Rates
Lane
Office L-3-,d
s. 92cc
2.74"
1 C.S F
iG
Re- Y:Ram2s
LallC:
L-Do" -I9 _a:iC
2017--::C
7.41`:
1.95`.':
15.5_r;.
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Re Rat=S
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and.
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201 7-30
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44-n
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CONCLUSION OF RATES
The alternative investment rates ranged from a low of 2.27 to 4.39 and are considered safe rates, when
compared to vacant land. The investor survey for the improved sales ranged from 5.33% to 6.70% and
the land capitalization rates ranged from a low of 2.44% to a high of 8.45%. A local broker of NNN
lease properties indicated investors for vacant land are demanding at least a 4.5% return. Based on the
data a land capitalization rate of 5% has been estimated for the subject. The annual rent for the subject
property is estimated as follows.
Market Value Estimate X Rate = Annual Rent
$97,500 X 5% = $4,875
ADDENDA
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QUALIFICATIONS OF THE APPRAISER - TRENT MARK, MAI, SRPA
LICENSE
Licensed Real Estate Broker, State of Florida
State -Certified General Appraiser RZ #000514 (Florida)
Certified General Real Property Appraiser 341275 (Georgia)
OFFICE LOCATIONS
81800 Overseas Highway, Islamorada, Florida 33036
2669 Aucilla Road, Monticello, Florida 32344
AFFILIATIONS
Member Appraisal Institute, MAI Designation #9353
Member Society of Real Estate Appraiser, SRPA Designation
Board of Directors, Appraisal Institute 1991 - 1994
Member of the Board of Realtors for Florida Keys, Marathon, Key West, Tallahassee
APPRAISAL EXPERIENCE
1991-Present Marr & Associates Appraisal Company, Inc., President
1988-Present Marr Properties, Key Largo, FL - Vice President, Broker
1991-President American Caribbean Real Estate, Islamorada, Florida, Broker
1988- Matonis, DeAngelis, MacDermott, Inc.
1986-1987 - AmeriFirst Appraisal Company, Maitland, FL - Commercial Appraiser
1985-1986- Thomas H. Overstreet, Winter Park, FL - Residential Appraiser
GENERAL EDUCATION
Bachelor of Science in Business & Administration, Major in Real Estate, Florida State University,
Tallahassee, Florida (1985)
PROFESSIONAL EDUCATION
All Courses and classes for both SRPA and MAI designations.
Partial List of Seminars and Continuing Education for the Appraisal Institute.
UASFLA (Uniform Appraisal Standards for Federal Land Acquisitions) - 2017
USPAP —2016, 2014, 2012, 2010, 2008, 2006, 2004, 2002, 2000
Florida Law — 2016, 2014, 2012, 2010
Forest Valuation-2015
Business Ethics - 2015
Appraisal of Self Storage Facilities 2014
The Cost Approach 2014
Mortgage Fraud-2014
Fundamentals of Business Valuation 2012
Business Practices and Ethics - 2011
Curriculum Overview -2010
Analyzing Distressed Properties — 2010
Supervisory Appraisal - 2010
Core Law — 2008, 2006, 2004, 2002, 2000, 1997, 1994
Valuation of Conservation Easements - 2008
Valuation of Wetlands, etc. /SFWMD — 2007, 2006, 2003, 2002, 2001
Residential Design and Functional Utility - 2006
Analyzing Distressed Real Estate - 2006
Business Practices and Ethics - 2006
QUALIFICATIONS OF APPRAISER — CONTINUED
"PLAM" Public Land Acquisition & Management Partnership Conference - 2006
Litigation Skills - 1997
Appraising Rural Properties in SE FL - 1997
Internet & The Appraiser - 1996
Standards of Professional Practice / Part A - 1996
Professional Standards USPAP/Law - 1996
The Appraiser as Expert Witness - 1995
Standards of Professional Practice / Part B - 1995
Wetland, Mitigation & Severable Rights - 1995
Understanding Limited Appraisals - 1994
Blue Print Reading for Appraisers - 1994
Appraising Complex Residential Properties - 1993
Standards of Professional Practice / Part A - 1992
Appraisal Review - 1992
Rates, Ratios & Reasonableness - 1992
Appraising Troubled Properties - 1992
Legal Liabilities - 1992
Non -Residential Demonstration Report Writing - 1990
CLIENTS SERVED
Attorneys, Bank, Savings & Loans, Mortgage Companies, Florida Department of Transportation,
Department of Natural Resources, Department of Environmental Protection, Nature Conservancy, Trust
for Public Lands, Monroe County Land Authority, National Park Service, Fish and Game Commission,
RTC, FDIC, Federal Home Loan Bank Board, Federal Savings & Loans, Insurance Companies, various
national corporations, estates and individuals.
TYPES OF PROPERTIES
Single Family Homes, Condominiums, Two to Four Family Dwellings, Office Buildings, Nursing
Homes, Industrial Warehouses, Shopping Centers, Apartment Complexes, Subdivision Developments,
Marinas, Planned Unit Developments, Environmentally Sensitive Land, Hotels, Office Condominiums,
Undeveloped Land, Mobile Home Parks, RV Parks, Fishhouses, Restaurants and Mixed Use Properties.
GENERAL EXPERIENCE
Mr. Marr has been appraising real estate property since 1985. He has been qualified as an expert
witness in both Dade and Monroe County. His extensive appraisal experience includes wetlands and
environmental land for both the Department of Environmental Protection, Nature Conservancy, The
Conservation Fund, Freshwater Fish and Game, Big Cypress National Park Service and Monroe
County Land Authority.
Mr. Marr received his SRPA designation in 1990 and his MAI designation in 1992. He served on the
board of directors of the Appraisal Institute 1991-1994. The Appraisal Institute conducts a program of
continuing education for designated members. Designated members who meet the minimum standards
of this program are awarded periodic educational certification. Mr. Marr is currently certified under
this program.
CERTIFICATE LIABILITY INSURANCE
iaATrrt � '
03106MO17
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 INSURERCUORIZED
PRESENTATIVE OR PRODUCER, AND THE CERTIFICATE BOLDER.
Ih1PORTANTz If the certificate holder Is an ADDITIONAL INSURED. the policy(1es) must he andarsed. If SURROGAT1ON 15 WAIVED, Subject to
the terms and conditions of the policy, certain policies may raquire are ormorsoment. A statement an this certificate does not confer rights to the
certificate holder in liars of such a ndarsarrtent(a),
PRODUCER rrF ub��59
AN Capital rutrp, LLC �rt E�It: g&13} 252I mot: {g1 } 54-24'21
1408 IS usishore Saud. #705 E - irS TILT iri7 m
FL 33507 l MA, CATLIN SPECIALTY INSURANCE COMPANY 1 15959
KEY MARINA DEVELOPMENT, LL
52 Riley Rd Unit 155
Odle titT FL 3d77 R F t
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COVERAGES CERTIFICATE NUMBER:
REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES Of INSURANCE LISTED BELOW BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE PDLICY PERIOD
IRRIGATED. NOrNgHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF AMY CONTRACT OR OTHER
DOCUMENTWITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR AWAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDMDNS OF SUCH POLICIES. LINTS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
T o OF INSU CE � � 6R IFP P iEY �
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Certificate holder Is fisted as additional Insured with respects to general Ilablity.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
E EXPIRATION DATE EREOF, NOTICE BELL RE DELIVERED IN
rime County EOCO ACCORDANCE WiM THE POLICY PROVISIONS.
1111 12th St Site 409AUTHDMng REPPAMI#TAnVE
Key West FL 3304E e -
1989. 014 AOORO CORPORATION, All rifflets reserves.
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IMPORTANT:I • ir Is an ADDIrTIONACINSURED,
the torms and conditions of the policy, certain policies may require an endorsement. A statement on this cartificale does not confer rights to the
certificate holder In nou or such andarsament(s).
ARMUCER
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-11 N Commerce Pkwy, Ste 204
Weston, FL 33326
National1
Florida Key Quality Food Inc.
dba Island Grill at the Mandalay
MilanoINSURED
125 Drive
Islamoracla, FL 33036
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Xey West, FL 33040
0 ING-2014 ACORO CORPORATION. All rights reserved.
ACORD 25 (2014101) 1 oFJ The ACORD name and logo are registered marks of AC ORD
#SI7679072JM17647303
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,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,
LESSEE").
WITNESSETH:
WHEREAS, the County owns the public right-of-way along Second Avenue in Key
Largo , Monroe County, Florida; and
0
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 to (10) feet of county right-of-way on Second Avenue, Key Largo, Florida,
for a term of to (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 ("Earth mark"), 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
1519 51.10MIN � 1110,11111we 1 11 1111111
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 (lie contiguous property and
4-1
leased rilght-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
Z:R
description of the leased Premises as well as allowing parking, wheel stops, an impervious
handicapped parking space, and landscaping on tile County right-of-way; and
WHEREAS, on September 21, 2011, the BOCC entered into an Amendment to Lease
with or an Ocean Sunrise reflectin- the above changes, among other revisions, to the
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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
ounty 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 Plan ("Site Plan"), attached hereto anii
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-ol-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
V
WHE REAS, 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 Jarivar 18, 2017,
y
of the new Right -of -Way Lease Agreement, which was never fully executed; and
WHERE AS, 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;
WHERE AS, Key Marina, Quality Foods, and BOCC desire to enter into this Right -of -
Way Lease Agreement reflecting the revised survey and legal description; and
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WHERE AS, 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
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concrete building and a frame building, existing since 1944 and the early 1960's
CY Z71
respectively, which buildings are currently owned by Key Marina, and the additional uses of
parking spaces- wheel stopps- an impervious handica
County right-of-way.
f1OW THEREFORE, IN CONSIDERATION of the mutual promises and covenants set
forth below, the parties agree as follows:
4:1
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:
C, C
1. 3:FRM: The Original Lease dated November 12, 1997, which expires on No�ember 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,
N
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 commencin.g retroactively to the I I th day of April, 2017, and
endina on the I 01h 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,
recorded on July 6, 2017, in the Official Records of Monroe County in Book 2863 at
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 -rants 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. RIESCRIPTIDN-0-F-RRE M-ISES: 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 Whiiehead Street, Key West, Florida 33040.
11 111 1111 Jill I
0
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 accessary structures (hat 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".
,NJOY,5HN C F 4__T_ALNI)�_RL,HT _ __0 __USE: LESSEE shall have the right of
ingress and egress to, from, and upon the leased Premises for all purposes necessary
4:�
to the full quiet enjoyment by said LESSEE of the rights conveyed herein.
8. UNA11THORIZED 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
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".
9A�S-S-J!GNMEN3,J3JF3iFA,_SE: 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.
Z
a. LESSOR hereby consents to the sub -lease of the Premises to Florida Keys Quali
Foods, Inc., a Florida corporation, whose principal address is 125 Milano Driv
Islarnorada, Florida 33036, a tenant of the contiguous property and leased righ
of -way upon which the existing historical encroachment is located ("Quali
Foods"), so long as Quality Foods has a valid and enforceable lease with LESS
for the contiguous property, owned by LESSEE. I
b. LESSEE shall provide LESSOR with a copy of its Lease Agreement with Quality
Foods and any amendments or renewals thereto, within to (10) days of execution
thereof.
c. Should LESSEE and Quality Foods fail to enter into a valid lease for t1l
contiguous property, at this time or at any time in the future, the consent ]for su
CI 63
R
INNEM
d. The consent authorized in this ROW LEASE is solely for the sub -lease of the leasef
Premises to Quality Foods as the SUB -LESSEE and not to any subsequent Sub -
Lessee without prior written approval.
10. FASF EME ITS
S: This ROW LEASE is subject to any utility easement existing
said leased Premises. Any other easement not approved in writing by LESS
shall be void and without legal effect. ZZ 01 tn
11. HICzHI QE INSJ!ECTIQN: 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 ZOW LE&SE.
12. During the term of this ROW LEASE,
LESSEE shall procure and maintain policies of fire, extended risk, and general
liability insurance cove.age, The liability insurance coverage shall be in an amount not
less than Two Hundred Thousand Dollars and 00/100 ($200,00000) 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 tile 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.
f 3. LIABILITY AND INDEMNIFICATION,: Notwithstanding any minimum insuran
requirements prescribed elsewhere in this agree.ent, LESSEE covenants and agre
that it shall defend, indemnify, and hold the LESSOR and LESSOR'S elected a
appointed officers and employees harmless from and against (i) any claims, actio
or causes of action, (ii) any litigation, administrative proceedings, appella
proceedings, or other proceedings relating to any type of injury (including death
loss, damage, fine, penalty or business interruption, and (iii) any costs or expens
that may be asserted against, initiated with respect to, or sustained b
indemnified party by reason of, or in connection with, (a) any activity of LESSEE
any of its employees, agents, sub -lessees in any tier, or other invitees during t
0
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 clairns, 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 clairns, actions, causes of action, litigation, proceedings,
costs or expenses related to events or circumstances that occur during the term of
this R 0 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. PAYMLNT OF TAXESS AND ASSESSML,_NT
,�: 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 WAIQF_R : 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
LESSODZ.
...............
17, VTIL=EES: LESSEE shall be responsible for the payment of all charges for
the furnishing of as, electricity, water, and other public utilities to the leased
Premises and for havinc, all utilities turned off when the leased Premises are
surrendered.
18. MINERAL _RI TS: 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.
19. RIQMT_-,-QL, D : 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
fall to allow public access to all documents, papers, letters or other materials made or
received in conjunction with this Lease, pursuant to tile provisions of Chapter 119,
Florida Statutes.
20. Q2NDITIQN QE PREMIS._FS: 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.
LESSEE agrees that this ROW LEASE i&
contingent upon and subject to LESSEE obtaining all applicable permits and
complying with all applicable permits, regulations, ordinances, rules, and laws of
0 0
Monroe County, the State of Florida or the United States or of any political
subdivision or agency of either.
=1
22. MEALH QF LQIENANT69. TERMS QH LQND-IJIQNE: 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 ri(,hts and remedies herein conferred upon LESSOR.
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........................
........... Maw
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 tote leased Premises or adjacent properties,
or any part thereof.
b. LESSEE shall not generate, store, produce, place, treat, release or discharge a
contaminants, pollutants or pollution, including, but not limited to, hazardous
0 1
Al
c, Should the buildings which extend onto the leased Prermses be substantial
damaged for any reason and cannot be repaired but must, pursuant to I aw, I
removed and replaced by structure(s) meeting laws in existence at the t me of su
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. PROMBITIONIMMMST LIENS DR AXE' ON- ja CESS: 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 (he 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 tile proposed
00cumetts,
26.1!A,RTIAL INVALIDIIX: 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. : 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.
13E
29. DUPLICATE ORIGINALS: This ROW LEASE is executed in duplicate originals
Z7
each of which shall be considered an original for all purposes.
ZD
30ENTIRE,_11NDERSTANDI : This ROW LEASE and the exhibits attached
hereto set forth the entire understanding between the parties and shall only be
amended with the prior written approval of LESSOR.
31. MAINTENAN!QE, Qf IMFBQV 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. CzQYEHNINQ LAW I - YENThis 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 t,*
mediate any disputes under this ROW LEASE, and further agree that it is not subject te
arbitration.
33. SEC & ,TIQN—CA TI : Articles, subsections and other captions contained in this
Y --Q
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 b*
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 notic;�
is to be given, as designated by such party in writing. LESSOR, LESSEE, and SUB-
C
LESSEE, hereby designate their addresses as follows:
LESSOR:
County Administrator
1100 Simonton Street
Suite 205
Key West, Florida 33040
LESSEE:
Ke,y—Marina Development- LLC
52 Riley Road, Unit 155
e�
-Celebration, Florida 34747
11
SUB -LESSEE:
Florida Keys Quality Foods, Inc.
125 Milano Drive
Islarnorada, Florida 33036
35. JURY TRIAL. In the event of a dispute, all parties hereto agree to waive the right
to wary 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.
. ..... . .. . .................... . ............
respective legal representatives, successors, and assigns.
39, AUTHORITY. Each party represents and warrants to the other that the execution,
delivery, and performance of this ROW LEASE have been duty authorized by all
necessary County and corporate action, as required by law.
and year first above written,
(SEAL)
ATTEST: KEVIN MADOK, CLERK
M
1 1111111 111� 11 111� 11 11 11 111111 !111 � III1II1J!JIJ1111I 111 11111111 1111 1 1 1
12
MEN
[11 RONNIE Iffulm M—NmAt ��
BY:
Mayor/Chairperson
MONROE couNTY ATTORNEY'S OFFICE
APPROVEDAST-Q
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PATRICIA EABLES
ASSISTAWCOUNTY ATTORNEY
IATE:
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Print F'V)
Print Name-.__,,.,
WITINIESSE.$:
Print N=04.
13
KEY MARINA DEVELOPMENT, LLC
LESSEE
BY:
Print'Name:
41
Title: A—
FLORIDA KEYS QUALITY FOODS, INC_
SUB -LESSEE
BY:
PrimName;
Title:
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KEY MARINA DEVELOPMENT•
MOPOSED SITE PLAN
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1 Packet Pg. 2291
SKETCH AND DESCRIPTION
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VISIM
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 tot subject property as 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 Plot
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. Datc 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 Sock: 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,
MACAU
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, on Administrative ode® pursuant to Section 472.027, Florida Statutes.
Date: e 7
K&". ' '&EE—A—Tow Florida Registration No. 5328
AVIROM & ASSOCIATES, INC.
L.B. No. 3300
'NON
. . . . . . . . . . . . . . . . . . . . .
-Nor.=
RNEIVITRA
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C iB, Page 1 of 3
Lai a
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 Plot
thereof, as recorded in Plot Book 1, Page 194, of the Public Records of Monroe County, Florida,
described as follows:
....... ....... .........
Said lands lying and situate in Key Largo, Monroe County, Florida, containing 3,249 square 'set
(0.075 acres), more or less,
NOT VAUD WITHOUT SHEErS I - 3
A VIROM & ASSOCIATES., INC,
SURVEYING & MAPPING
50 S. W Znd A VENUE, SU/III =— 102
M BOCA PATON, FLORIDA 33;32
TE!1 III
L (561) 3-42-2594� FAX (561)44-77225
G)=f AVIRVJ & ASSOC44TES, INC I# Mg0=MWfVM
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L=9.55'
N 43"27'45" E
3.27*
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INTERSECTIF :r7
CENTERLINE OF
SECOND AVENUE 00.
AND CENTERLIN-E
EAST SECOND STREF1
S 44*37*16* E
SOUTHWESTERLY LIMITS OF
AMENDMENT TO LEASE
(O.R.S. 2539/1634 M.CA )
ly-v
R=20.75
L=6.28 v
SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT TO LEAS-4
(O.R.B. 2539,
KEY LARGO, MONROE COUNTY, FLORIDA
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GRAPHIC SCALE IN FEET
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LINE OF AMENDMENT
TO LEASE
(O.R.& 2539/1634 M.C.R.)
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NOT VALID WITHOUT SHEETS 1 - 3
A VIROM &ASSOCIATES, INC.
TASSOSURVEYING & MAPPING
50 S W. 2n d A VF-IJUE, SUJ TE 102
t" BOCA RATON, FLOPJDA 33432
TEL (557) 392-2W4. FAX f--61) 394-7125
Aww. A Vlr �O USUR VE Y co m
RD (g)2010 AVMM & ASSMAIrS, irlx— am ngn= mwr--d.
pe 71AVIIIWA341�3 A r
It
LEASE AGREEMENT
A
Date: April
92017
By and Between
a Florida limited liability company
"OM
80 East 2 d Street
Key Largo, Florida 33037
MOORE=
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 Tenn: The Initial Lease Tenn shall be seven (7) Lease Years commencing
on the Effective Date hereof
Land: The real property owned by Landlord located at 80 East 2'd 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 Tenn: The Initial Lease Term, together with each Renewal Term timely exercised
by Tenant. If each Renewal Tenn is timely exercised, the Lease Tenn 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
fallowing the expiration of the Initial Lease Term.
Rent: Collectively, Base Rent and Additional Rent.
Rent Commencement Date: The same date as the Commencement Date.
Securit,. 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 gKortion 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.
�1220%M, 2111W.W
Term. This Lease shall remain in effect for the Lease Tenn.
2. OL)tion 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 Tenn 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 Tenn, 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.
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 Tenn, as more particularly set forth
herein.
I . Base Rent. Tenant shall pay to Landlord the Base Rent during the Lease Tenn as
set forth below.
2. Additional Rent. For each month of the Lease Tenn hereof, Tenarit 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
zkzllments in advance on the first da1v of each month. If the Rent Commencement Date shall be
other than the first (I at) day of a cale�dar 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 I%rorated anin m shall be due and %-a�Mhle on the first dWj of the first calendar
Lmonth occurring after the Rent Commencement Date.
4. Sales Tax. Tenant agrees to pay Landlord all applicable Florida sales tax due in
mirfin by T,,wn;mt
here -under or as otherwise determined by the applicable governmental authorities to be owed
99MM98M
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, (in) 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
paidjor andperformed 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
0 eratin Cost Tenant shall a such amount to Landlord as Additional Rent as reunited herein.
k;I1U1gK;ZS IV A. -
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 famish 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. Property Damag_e Coverage/Fire and Extended Coverage. At all times
during the Lease Term hereof, Tenant shall, at its own cost and expense, maintain in effect
�201ijics of iWierty dama a insu n coverinig oth r immovements on the Land. as well as the
Nunaing ano i enanus trace nxtures, menmanuise ana orner personal property anct improvemen s
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
t1rc-xWerty so inavrvd,
except as otherwise set forth herein.
b. Tenant Liabilitv 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
4Hxices, Tenant shall maintain one or more &uagekeepers le�,:A I �h i�fit 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
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
Doll 000 0 J jej giu-iretj 'Ttiurit maintained bi Tenant
ii 11-0001, 1. _j 1jueli I *ie Jo bi nrojured ind
I 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 an additional dutp u%on Tenant or Landlord with reZyect 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
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Tenant fails to operate its Permitted Use within the Premises as set forth in this Section 1, 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.
I. 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 Tenn. Tenant shall, at Tenant's
sole cost and expense, cause the Premises to comply, at all times during the Lease Tenn, 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. Si ms. 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 timetrames 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
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 Commenchn,, 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 -,Urovided to Landlord: (11 a conv of a non- onfin ent financin commitment from an
I IMILLIQ1 b"PUTUMUCTUIT UT UCIUM MILUM agIUMMUMb ab Nuan JIT 1�;41&1170(1 DV UUMIRM
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 drove mental 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
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 Accordim-, 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.
d. (2riality 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.
a. ComL)Ietion 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 Me core) shall
j
be deemed to be a material default under this Lease, and Landlord shall have the right topursue
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 perfon-ned (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;
if. 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;
M-70
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
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thte-Prcmises or any part thereot, or the inco-m-e—therefrom. Ilothing 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
9. Title to the ImL)rovements. 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. Com�?Iiance 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.
Except for losses, damages and claims ansing from the willful misconduct of Landlord or
Landlord's agents, contractors and/or employees, Tenant hereby releases, indemnities 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
Tenn, 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
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.
M. ASSIGNMENT AND SUBLETTING
I . Subletti . 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. Amy 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 rovided. —however. that re "r less of anp such assi anient Tenant shall remain fullp
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
I . 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. Ri,-,hts 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
or is schneduled to take which event the Lease shall terminate effective
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.
0. DEFAULT AND REMEDIES
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.
1IRRY77717" or unue- 111- 01 Mly IUTV 01 11KC 1111POfL OF 1i UIC ;r11V
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
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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 b,,- 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 to 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
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otherwiseLandlord sells, transfers or conveys
thereof,proceeds of such sale or such lease (subject to the prior rights of any mortgagee of the land and
Premises), or any part ojudgment
observedmoney bp Landlcd in the event of anp default or breach by Landlord with resLcect to any of the
terms, covenants and conditions of this Lease to be and/or
no other assets of the Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's fs
4. Failure to Exercise Right . No delay or omission by Landlord to exercise any
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
I . Proper Notice. A-ny 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
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 verification4 shall not mail or deliver any
Premisesnotice or consent to the # notice delivered to the Premises shall not
Landlord'snotice under this Lease. Although
information, such information is provided for informational purposes only and notice by
facsimile shall not be effective notice.
11 S. 12s' Street, Suite 102
Tampa, FL 3362
Attn: Mark Gerenger
W
50 North Laura Street, Suite 3000
F: 32202
Attn: Chris R. Strohmenger
125 Milano Dr.
Attn: Sam Nekhalia
14
29293920 v6
2. Cham_,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.
■
11C MIMS ul LHIN 11CUSC o any morLgago or agrttT=7T-M'TMr=
Lease is subordinated and covenants, conditions, restrictions and encumbrances prior to the date
of this Lease.
S. ENVIRONMENTAL MATTERS —NO HAZARDOUS MATERIALS
15
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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 Tenn 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
W =1
T. LANDLORD'S RIGHT TO TERMINATE; RE, LOCATION
Intentionallv deleted
2. Intentionafiv 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. RiL0it 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.
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 Tenn or any
extension of the Lease Tenn or an earlier termination of the Lease Tenn Tenant a re
ffM
:t,rovision 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. AttomeNs' 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
(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 Maieur . Force Majeure shall can 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.
& No Partnershit). 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 Head . 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 Assiutices: No 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 AL-,ainst 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. Authoriv,- to Shni 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-.,i-eement. 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.
14Radon 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. Incoi-poration bN 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. Guarantv. To induce Landlord to enter into this Lease, Sam NellUaila
"'Guarantor'l - has amr�cd to serve asguarantor of Tenant's liabilities and obligations hereunder
or 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.
717777 U%-, UILLILI IIVL aZ5 a 7VII
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
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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
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 Aporoved 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. Qualhv 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-Openm,-, Obli,-,ations. Immediately following the Delivery
Date, Tenant shall use all cornmercially 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.
a. Title to the Improvements. 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. Comi)liance 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 provisions of the Project Plans and this Lease
applicable to Landlord.
The Restaurant Rider attached hereto is incorporated herein by this reference.
X FUTURE NEGOTIATIONS; TERMINATION OF PRIOR LEASE
The parties hereto have expressed an interest in entering into a joint venture or
partnership or other business arrangement with respect to the operation of the restaurant on the
Premises, although the parties have not been able to finalize and approve the terms of such an
arrangement, Monroe County (the "County") has indicated it will not enter into the ROW Lease
with Landlord unless and until the patties execute a lease with respect to the portion of the
Premises owned by Landlord, The parties recognize that time is of the essence to get the ROW
Lease executed by the County, and that the ROW Lease is critical to the successful operation of
the restaurant on the Premises. Accordingly, the parties are entering into this Lease in order to
satisfy the County's requirement that a lease of the Premises be in place between the parties.
Notwithstanding the parties' execution of this Lease, brunediately hereafter, the parties agree to
negotiate the terms of a potential joint venture, partnership or other business arrangement on
terms acceptable to the parties in their sole and absolute discretion as approved by the parties,
the "JV"), In the event the parties enter into the TV, the parties agree this Lease will to irate on
even (late therewith. In the event, the parties fail to enter into the JV for any reason, then
notwithstanding anything herein to the contrary, Landlord shall have the right to terminate this
Lease on thirty (30) days' prior written notice to Tenant, in, which event the Lease shall terminate
on the date set forth in Landlord's termination notice, Tenant shall vacate the Premises on or
before the date of' such termination (but Tenant shall not be entitled to remove any fixtures,
equipment or Tenant improvements).
BALANCE OF PAGE INTENTIONIALLY LEFT BLANK
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 "rP�LC
STATE OF
COUNTY
"LANDLORD"
KEY MARINA DEVELOPMENT,
LLC, a Florida limited liability company
By: ' At.'. /—
Name:
Title:
Date: /!IIay/ a
Landlord's Acknowledgment
) SS.
The foregoing instrument was acknowledged before me a Notary Public, this �a
day of la 1 L , 2017, by o the
of KtY MARINA DEVELOPMENT, LLC, a Florida Iim ed liability co pany, 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
ot DEE H. KIRBY•
Notary Public - Stet! of F1orWi
' � F My Comm. EXPkas Aulg i, 2017
.. .a , CammiSSIN +F Ff Ot10#?'
29293920 v6
Name: D,eL 0
My Commission Expires: 8 / 8 / 17
My Commission Number is: F-V- Q L{ 109 I
22
uFfinum
FLORIDA KEYS QUALITJNC.,
a Florida corporation
Name:
Name:
NdN�
Tenant's Acknowledament
COUNTY
Tli - fibregk Dg instrument was acknowled d before me, a �otary Publi this
day of 2017,byT6. W�Lrya-,,OL— thM,
. ... .. 1 0 ORIDA KEYS QUALITY -' VOO� 4-N1- - Florida corporation, on behalf of the
corporation. He/She (circle one) i ersonally known v me or ® prod iced a valid driver's
license as identification.
NotaryOublic, State and Cori6y Aforesaid
0
.�� —
My Commission Expires:
My Commission Number is: -good
do - do
N
1=1111F.M1
LEASE GUARANTY
THIS LEASE GUARANTY (this "Guaranty"), is made as of the ! . Ix
day ot,'QP' v
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. Obli!.,,ations. 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
Lzridlord-the-po cX-lad pzyment, pLerformance-&nd-observ-ance-�of 01
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
Tenn, 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 Tenn, for which
Guarantor shall remain liable under this Guaranty.
1 Unconditional Guaranty. The Obligations are unconditional. The Obligations, and
this Guaranty, will remain in fall 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 imenharceability 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
reement: any extension or renewal of the Lease or an%i other a cement: anv rescission, waiver.
wau-011 0j_
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
for payment, notice of non-payment or non-performance, and any other notice or demand to
24
29293920 v6
willU I "LldidilLor 11ULtIlL 0L11UrWlSC 07 entruca Lo receive.
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 Liabilit.%. Landlord may, at Landlord's option, proceed against
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 light of payment to the prior
indefeasible payment in fall of all obligations under the Lease.
MrK%&TJrJMZ=
(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
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.
(a) 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.
e
xr
26
29293920 v6
FINUORM
SITE PLAN OF PREMISES
PROP OSE'D SITE PLAN
27
29293920 v6
SOME=
as
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as
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.
I . 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
3:,Zeh trap t(?Jk- clleavrcM, auvd dic 1�nm the?efor 'to Im rovete �,- J �` tcr!��l
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 charaes incurred bi L in connection therewi . toa er with a sum canal to twentv
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 provi&
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
Exh st Eo inment durina all hours of oLeration of Tenant's kitchen in the Premises, and shall
IS W.-daMRAWORM I A M)
99
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 firorn 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
or (ii) treat such failure to eliminate such odors as a default under this
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 detennined 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
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.4elI -1 91cz) Aelepuew-aseq- ftm-O-jqffilj :juaLLjq3ujjV
RIGHT-OF-WAY LE EMENT
THIS RIGHT-OF-WAY LEASE COUNTY, a liil AGREEMENT ,,('"'LEASE"), made and nd
i.
bpares daof band b
poubdvooLoFordawod00 11I 1n1
Simont
tre L da 33040. r'LESSO MM■
WHEREAS, the County owns the public right-of-way along Second Avenue in Key Larg
nroe CountyFlodaandIf
WHEREAS, there exists fin historic encroachment upon the Second Avenue public right -or -
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
=GT111110=111 -Mam --I- a T 11-1 M- --I_.
COMI n assignment WX
the Ori inal Lease by the BOCC, and
WHEREAS, on July 20, 2011, the BOCC acknowledged the transfer of title through a
foreclosure action fforn Ocean Sunrise to Morgan Ocean Sunrise, LLC C'Morgan Ocean
Sunrise"), on the same date; and
WHEREAS, an July 20, 2011, the BOCC acknowledged and approved the Assignment of Lease
("Assignment of Lease!') from Morgan Ocean Sunrise to Florida Keys Quality Foods,
Florida corporation, whose principal address is 125 Milano Drive, Islarnorada, Florida 33036 a
tenant of the contiguous property and leased right-of-way upon which the existing historical
encroaclunent is located ("Quality Foods"); and
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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. 2325
.31
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approved by Resolulion 493-2007 on November 14, 2007 ("Development Agfeernenl"), which
included lite use of the leased properly and which was executed subsequently to Ilia Lease. ilius CL
allowing some inadifice6onof`the in the use othe property under the Original Lease, and L_
14111— 1 1 77
06 approval snowed encroachment of builat i1gs or syrUctures beyond Ilia original lescription o I
leased Premises as well as allowing parking, wheal slops, an inipervious handicapped pailrkin
space, and landscaping Oil lite right-of-way; and
WHEREAS, (lie contiguous property is currently owned by Key Marina Development, LLC, a
Florida limited liabty company, whose principal address is 52 Riley Road Unit 155,
Celebration, Florida 34747, as acquired through a Special Warranty Deed dated Oclober 2 1,
al.ka-fa-ri, ?6_-Aa14, *F9-cWk*zz,1,?fi Ryik
Clerk of [lie Court ("Key Marine"). and
WHEREAS, Key Marina is the current successor in interest to lite 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 die
Assigni-nent of Lease; slid
as of the date of this Right-of-Wity Lease Agreement, and
WHEREAS, Key Marina has provided a new Survey and Legal Description, dated Deceniber
07, 2016 incorporating the Site Plan revisions for the Mandalay property, a copy of which is
attached hereto and rnade a part hereof ("Exhibit A"); and
WHE.%,AS, 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
becorne the SUB -LESSEE on the leased Premises;
1!4
ICI
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3.1
C14
04
building and a frame building, existing since 1944 and the early 1960's respectively, which
buildings are currently owned by the Key Marina. 0.
li mutual promises linu covenants set VoL
below, the parties agree as follows:
#
ZU1,10tucrtillull U1 tile FICIC111allef COU10111cl, UUC5 11catuy le
to KEY MARINA ('LESSEE") the right of way on Second Avenue, Key LaTgO, Flori
contiguous to the Mandalay development, more particularly described in paragraph two
!@elow 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 tile _
day of - 2017 and ending an 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
attached hereto and made a part hereof.
CONSIDERATION% LESSEE shall pay to LESSOR within ten (10) days of the
commencement date and each anniversary thereafler, the sum of Fifty Dollars ($50.00)
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-of-way as
shown on the survey, a copy of which is attached hereto and made a part hereof as
Exhibit
S. 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 exisflng
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.
I Packet Pg. 2327 1
�esea-1 Me— Aelepue-I 9,LS_A Apmpupgasean �pf,4-jo-u6im, qua,
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7- ASSI UBLEASE: 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 (lie 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.
Florida corporation, whose principal address is 125 Milano Drive,
Islamomda, Florida 33036, a tenant of the contiguous property and leased right-
of-way upon which the existing historical encroachment is located ("Quality
Foo(W), 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,
8. EASEMENTS: This Lease is subject to any utility easement existing on said leas'l
Premises. Any other easement not approved in writing by LESSOR shall be void aQ1
without legal effect.
9. RIGHT OF, INSPECTION: LESSOR or its duly authorized asents. representatives
employees shall have the right at any and all times during daylight hours to inspect
leased premises and the works and oooe
peratins•f LESSEE in any matter prtaining to th
ROW LEASE. I
10. INSURANCE REQUIREMENTS- During the term of this ROW LEASE, LESSEE
shall procure and maintain policies or fire, extended risk, and liability insurance
coverage. The liability insurance coverage shall be in amounts not less than One Hundred
Thousand Dollars and 1401100 ($100,000.00) per occurrence and Two Hundred
Thousand Dollars and NO1100 (S200,fib .fit ) 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 Stree� Key
West, Florida 33040. LESSEE shall purchase all policies or insurance from a financially
responsible insurer duly authorized to do business in die 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.
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ILLIABILITY: Notwithstanding any minimum insurance requirements prescribed
elsewhere in this agreement LESSEE covenants and agmes that itshall 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. 2328
Mqe pur-�-3 :'g,!;z? Ae,w, w2w-avEU A2PV�'J10,-'116','U8U.1q1V-,jV p
z
litigation, administrative proceedings, appellate proceedings, or other proceedin
relating to anrL-We of injjurjk�linchiding dealhj�r_ �o damage—fMC, penaltkA or businj
interruption, and any costs or expenses that may be asserted against, initiated wl
any activity of LESSEE or any of its employees, agents, sub -lessees or other invite
during the term of this Agreement, (b) the negligence or willrul misconduct of LESS]
_ t
or tiny of its employees, agents, sub -lessees or other invitees except to the extent
r
claims, actions I causes of action i litivation, roceedin costs orexioenses arise from d.-
ani� of its em 0
claims, actions, causes or action, litigation, proceedings. costs or expenses relate d
events or circumstances that occur during the term or this LEASE, this section w
su-1-five tl*. er.nilmlin-r of the t lyff. 1611 'mialim 161
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.
n3. NO WAIVER OF BREACH The failure of LESSOR to insist in any one or mo
instances upon strict performance of any one or more of the covenants, terms a
conditions of this ROW LEASE shall not be construed as a waiver of such covenan".
terms or conditions, but the same shall continue in ffill force and effect, and no waiver
LESSOR of any of the provisions hereof shall I any event be deemed to have been mac
unless the waiver is set forth in writing, signed by LESSOR. I
15. UTILITY FEES: LESSEE shall be responsible for the payment of all charges for tim
furnishing of gas, electricity, water and other public utilities to the leased Premises a
for having all utilities turned off when the leased Premises are surrendered. i
16. MINERAL RIGHTS: This ROW LEASE does not cover petroleum or petroleum
products or minerals and does not give the tight to LESSEE to drill for or develop the
same, and LESSOR speccally 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,
I Packet Pg. 2329 1
G uq"J-aqea-'- —qffip as
06
CD
T17iff UM71CIF-MINT
records relating to this ROW LEASE and LESSOR shall have the eight 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 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 orChapterFlorida Stalutes.
f,,8. CONDITION Or, PREMISES LESSEE agrees that this ROW LEASE is contingent
upon and subject to LESSEE obtaining all applicable permits and complying with lilt
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.
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 avency oFeither.
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 eidier terminate this ROW LEASE
and recover from LESSEE is 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
7 =n- M,61:13-16113
1 12 a . uppiplum
a. LESSES shall not is 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
IV; t* %;Ikas ?6W$;drJke;;
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,
ckeTricals or-ofter-am-Tis -1 -f- i-na or fro-W, tVe leawd Prenmma= zdiaceTflaidr,
or waters in any manner nof permuteo vy iaw. For lie purposes 5111iis K-FIFTEX5E,-
Ls
toxic pollutants designated by the United States Congress or the EPA or defined by
anv ot.V.er fe i i —"" ta N i 1 t.. .
PLAHt4�15t;V111r.11111ts -21m,liVIVAIII& qt41-40 [Fit -'st4taoW 4 4 1PIN I It
N
I Packet Pg. 2330 1
(asmwj hojkA.-,;O---,146�2�j Au[-Cpuqq x q, Au;ePUL-Vj-RSerq 1p,lffiH -,-Jua-u1q-1Vy1
C)
17
Z
any hazardous, toxic or dangerous waste, substance, material, pollutant or
contaminant, "Pollutants" and "pollution" shall mean those products or substances
-inLFIDvA%%�2 376 md Chapter 403 and the rules_�ulyaled
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 sale cost and expense,
remedintion
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
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
or indirectly by LESSEE's activities or facilities. Upon discovery of a release of a
hazardous substance or jollutant, or an other violation of local, state. or federal law.
aroduction, Wiwi. trefiftext, 41ji'll jj iiiijajo 11 jjj jinjiminant, LEJSEE
2nd to LESSOR, all within the reporting period of the applicable agency.
c. Should the buildings which extend onto the leased Premises be substantially
,�a-rraiaed renaired but -rr gai, p lij.- 11n rengved
wim"O will il
this ROW LEASE shall be automatically terminated.
22. UMNDER 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
(lie leased Premim 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. Nofification 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
-3-f
IN
C-4
C14
z 6
23. PRomminONS AGAINST LIENS OR armll ENCUMBRANCES- Fee title to
the leased Premises is lield by LESSOR. LESSEE shall not do or permit anything to be IL
done which purports to create a lien or encumbrance of'Fry nature against the real
property contained in the leased Premises including, but not limited to, mortgages or
construction liens against [lie leased Premises or against any interest or LESSOR (herein,
24. PARTIAL INVALIDITY: If any terni, covenant. conon or provision of this ROW
LEASE slitill be ailed by a court of competent jurisdiction to be invalid, void, oi
unenforceable, the remainder shall remain in full force and effect and shall in no way bf.
affected, impaired or invalidated.
25. ARCHAEOLOGICAL AND HISWRIC SITES: Execution of this ROW LEASE ir
no way affects any of the parties' obligations pursuant to Chapter 267, Florida Statutes -
The collection of artiracts or the disturbance of archaeological and historic sites on state-
owned lands is prohibited unless prior Ruthorization has been obtained from thQ
26, SOVEREIGNTY SUBMERGED LANDS This ROW LEASE does not authorize t
use of any lands located waterward of the mean or ordinary high water line of any la
river, stream, creek, bay, estuary or other water body or the waters or (lie airspa
thereabove. I
-i—sexecuied in duplicate origina 5 Teac
of which shall be considered an ornal for all purposes.
28. ENTIRE UNDERSTANDING- 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 no,
limited to, keeping the leased Premises free of trash or litter and meeting all building allil-
safetv codes in the location situated.
30. GOVERNING LAW: This ROW LEASE shall be governed by and interpretei
according to the laws of the State of Florida.
LEASE are for reference purpom 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.
771= -
certified mail includin& but not limited to notice of any violation seryed pursuant or.
253.04, Florida Statutes, to the last address of the party to whom notice is to be given, as
U
N.3.f
g �x
CIA
designated steely early in r riliag. LESSOR and LESSEE hereby design"Itetheir
address as follows:
U.
I V 3' Dalk,
LESSOIU
County Adminismor
I 100 Simonwn Street
Key Wma, FWdo 33040
LESSEE:
Key Wna Developm=4 LLC
52 Riley Road Unit 15S
Celebration,florida 34747
I r:P1 lit 4
IN WITNESS WHEREOF, the parties hereto have set Their hands and scab the day and
year first above written.
(SEAL) BOARD OF COUNTY COMMISS1014ERS
ATTEST: KIEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA
By: By.
Mpuiy Clerk Mayor/Chairperson, George Neugent
FE,
KI,
'esee- fx"'y uffiz�, imepuegaj -e e L�-q a S oa A a I m :3 -
z
This docu:J..:,euI mens epare d and approved its (a forin by:
C Date . Read Rogers, Esq.
Assistant County Attomey
on Bar No.. 0 10 1178
wfflf��
(305) 292-3470
IJL
SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT TO LEASE
(O.R.B. 2539, 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
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 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 Plot
Book 7, Page 22 of the Public Records of Monroe County, Florida with the northeasterly
right—of—way line of Second Avenue having a hearing 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.S. = Official Records Book; P.S. = Plot Book; PG. = Page, P.L.S.
= Professional Land Surveyor; P/0 = a Portion of, P.O.B. = Point of Beginning; P.O.C-
Point of Commencement; S.F. = Square Feet.
I HEREBY CER11i7Y 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:
KF9CHEE—A—TOW, P.L.S.
Florida Registration No. 5328
AVIROM & ASSOCIATES, INC.
L-B. No. 3300
.. ... ... ... .
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SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT TO LEASE
(O.R.B. 2539, PG16U,
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 Plot
thereof, as recorded in Plot Book 1, Page 194, of the Public Records of Monroe County, Florida,
described as follows:
. . . . . . . . . . . . . . . . .
WHO[
Said lands lying and situate in Key Largo, Monroe County, Florida, containing 3,249 square tset
(0.075 acres), more or less.
-M'
A VIROM A ASSOCIATES, INC. Jost 9881-6
&ASSO SURVEYING & MAPPING -SNLE:' V=30'
50 OW ZAAMENPE, SUj7-E 702 DATE: -IZ'07/2016
Ift BOCA PATON, FLORIDA 33432 Sy. SRL
TEL (561) 392-259A FAXA67) 394-7125
vANvA WROMSURVEY com CRECREE' SAM. z
PG.
W' IN9 Of�" 4 the PMOON, a AVNNW6 ASWCIATEI Na F.S. NONE
Attachment Survey and Legal Descri ptio n (2576 , Mandalay Right -of -Way Lease)
FPacket Pg. 2337
SKETCH AND DESCRIPTION
A PORTION OF AMENDMENT M LEASE
2539, PG. 1634,
KEY LARGO, MONROE COUNTY, FLORIDA
R=50.00,\--.
L=9.55 I
N 43*2745" E
3.27
N47*21106"E 3.5
N 451746' E 9.60'
P-O INTERSECTI;CN OF
CENTERLINE OF
SECOND AVEMNUE
AND CENTERUNE
EAST SECOND STREET
S 44*37'16* E 19.99'
SOUTHWESTERLY LIMITS OF
AMENDMENT TO LEASE
(O.R.S. 2539/1634 A
P.O.B.
A--1 7'22006"
. B •
IONS
0
- ------------------ 1
Attachment: Sure'
il
0 3D 60
GRAPHIC SCALE IN F ET
1. = 301
SOUTHEASTERLY
LIMITS PROPOSED
CUL—DE—SAC
POINT OF CUSP
'
C,
L=8.98'
G
v
NORTHEASTERLY -f1
LINE OF AMENDMENT
TO LEASE
25,39/1634
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AWROM &ASSOCIATES, INC.
JOB 9:
9881-6
ASSO
SURVEYING & MAPPING
SCALE.
J'ZV
50 a W 2nd AVENUE SUITE ioz
DATE:
1210712016
M
BCCA RATON. FLORZA 33432
TEL (S61) 392 , ro2594, FAX,1567) 3,94-7126
www A WOOMSUR VEY c--m
CHECKED.,
S".
z
ED
02DW AVIRAM & ASSOCATES, INCL 0, Ponz
F.S. NONE PG.
Trim popemyvf vl;��u A
fsrte
and ne
u
y and Le.qal Description (2576 a Mandalay Right -of -Way
Lease)
I Packet Pg. 2338
MONROE COUNTY RCD Nov 06 2001 09:59AM 0 "nI
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