1st Amendment 09/21/2011 DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: October 25, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M. Peters
Executive Assistant
FROM: Pamela G. Hanc .C.
At the September 21, 2011, Board of County Commissioner's meeting, the Board granted
approval and authorized execution of Item P8 Amendment to a Lease dated 11/12/1997, for a
strip of County -owned right -of -way located on Second Avenue, Mandalay Subdivision, Key
Largo to enlarge the description of the leased parcel and reflect the current status of structures
located on the leased parcel (as amended).
On October 13, 2011, this item was executed and returned to your office for follow
through. On October 17, 2011, you forwarded a second original for execution because the
original was signed by someone other than an officer of the corporation. Attached is the fully
executed original Lease for your handling. Should you have any questions, please feel free to
contact this office.
cc: Finance
File
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: October 13, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M Peters
Executive Assistant
F R O M : Pamela G. Hancock, . C.
At the September 21, 2011, Board of County Commissioner's meeting, the Board granted
approval and authorized execution of Item P8 Amendment to a Lease dated 11/12/1997, for a
strip of County-owned right -of -way located on Second Avenue, Mandalay Subdivision, Key
Largo to enlarge the description of the leased parcel and reflect the current status of structures
located on the leased parcel (as amended).
Attached is the original Lease for your handling. Should you have any questions, please
feel free to contact this office.
cc: Finance
File ✓
Doc# 1856141 10/26/2011 1; 48PM
Filed &Recorded in Official Records of
MONROE COUNTY DANNY L. KOLHAGE AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (Amendment) is made this d/ day of 2011 by and between
the Board of County Commissioners of Monroe County, Florida, a political subdivision of the State of
Florida (BOCC or Lessor) and Morgan Ocean Sunrise, LLC, a New York limited liability company (Lessee).
WHEREAS, on November 12, 1997, the BOCC entered into a Lease Agreement (Lease) with Canalis
Holding Corp. for ten feet of county right of way (ROW) on Second Avenue, Key Largo, Florida, for a
term of ten years from December 1, 1997 until November 30, 2017; and
WHEREAS, this lease was entered into in order to reflect the historic encroachment of a concrete
building and a frame building, existing since 1944 and the early i960s respectively, however no survey
or drawing was attached that demonstrated the actual building configuration within the ROW ; and
WHEREAS, the Lease was assigned from Canalis Holding Corporation to Earthmark Companies, LLC,
which assignment was approved as required by paragraph 7 of the Lease by the BOCC on February 18,
2004; and
WHEREAS, the Lease was assigned from Earthmark Companies, LLC, to Ocean Sunrise Associates, LLC ,
which assignment was approved by the BOCC August 18, 2004; and
WHEREAS, on July 21, 2011, the BOCC acknowledged the transfer of title through a foreclosure action
from Ocean Sunrise Associates, LLC to Morgan Ocean Sunrise , LLC and approved the assignment of the
Lease to Morgan Ocean Sunrise, LLC, on the same date; and
WHEREAS, the Owner Lessee assigned the Lease to Florida Keys Quality Foods, Inc., a tenant of the
adjacent property and the leased ROW upon which the existing building(s) is located, which assignment
was approved by the Lessor on July 21, 2011; and
WHEREAS, Lessee is the successor in interest to the rights and obligations set forth in a Development
Agreement between Ocean Sunrise Associates, LLC and the BOCC (Development Agreement) which was
approved by Resolution 493 -2007 on November 14, 2007, which includes the use of the leased property
and which was executed subsequently to the Lease, thus allowing some modification in the use of the
property under the Lease; and
WHEREAS, the survey and site plan provided at the time of the Development Agreement approval show
encroachment of buildings or structures beyond the original description of the leased premises as well
as allowing parking, wheel stops, an impervious handicapped parking space, and landscaping on the
County right of way; and
WHEREAS, Lessor and Lessee desire to clarify the amount of property leased and the use of the property
pursuant to the Lease based on the subsequent approvals; and
WHEREAS, the BOCC has specifically determined:
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1. Morgan Ocean Sunrise, LLC is the owner of Lot 1, block 4, Mandalay Subdivision according to
the plat thereof recorded at Plat Book 1, Page 194 of the Official Records of Monroe County and is the
only property owner adjacent to the right of way;
2. The parcel which was the subject of the Lease upon which the buildings encroached in the
past, prior to 1997, is of insufficient size and shape to be issued a building permit for any type of
development to be constructed on the property;
3. The leased parcel, as amended by this instrument , is of insufficient size and shape to be
issued a building permit for any type of stand -alone development to be constructed on that parcel;
4. Because of the historical encroachments for approximately sixty (60) years on this portion of
Second Avenue, the public's use of and access to the County's right of way is not further affected by the
Lease or this Amendment.
5. Lessor has no current need for the leased property and no other use planned for the
property.
NOW, THEREFORE, the parties agree to amend the Lease as follows:
1. Paragraph 2 is amended as follows:
2. Description of Premises: The property subject to this lease is described on Exhibit A attached
hereto.
2. Paragraph 3 is amended as follows:
3. Purpose: This lease is for the purpose of allowing the use of the existing buildings and
accessory structures that exist on the county right of way as shown on Exhibit B and associated
improvements.
3. Paragraph 6 is amended as follows:
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. Development
shall be as allowed by the Development Agreement dated November 14, 2007, or the
Development Agreement as modified as provided by law. Only parking, wheel stops and
landscaping are otherwise permitted within the leased area, outside of the structures and
buildings shown on Exhibit B, 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 further increase the footprint of the existing development
as shown on Exhibit B.
4. Paragraph 10 is amended as follows:
10. Insurance Requirements. During the term of this Lease, Lessee shall procure and maintain
policies of fire, extended risk, and general liability insurance coverage. The liability insurance
coverage shall be in an amount not less than $200,000 per person and $300,000 per occurrence
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for personal injury, death and property damage on the leased premises. Such policies shall name
Lessor "Monroe County" as an additional insured. Evidence of insurance shall be submitted
annually. Lessee shall purchase all policies of insurance from a financially responsible insurer
duly authorized to do business in the State of Florida, acceptable to Lessor. 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 the Lease.
5. Paragraph 11 shall be amended as follows:
11. Liability and Indemnification. Notwithstanding any minimum insurance requirements
prescribed elsewhere in this agreement, Lessee covenants and agrees that it shall defend,
indemnify and hold the Lessor and the Lessor's elected and appointed officers and employees
harmless from and against (i) any claims, actions or causes of action, (ii) any litigation,
administrative proceedings, appellate proceedings, or other proceedings relating to any type of
injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any
costs or expenses that may be asserted against, initiated with respect to, or sustained by,
any indemnified party by reason of, or in connection with, (A) any activity of Lessee or any of its
employees, agents, sub - lessees in any tier or other invitees during the term of this Agreement,
(B) the negligence or willful misconduct of Lessee or any of its employees, agents, sub - lessees in
any tier or other invitees except to the extent the claims, actions, causes of action, litigation,
proceedings, costs or expenses arise from the intentional or sole negligent acts or negligent acts
in part or omissions of the Lessee or any of its employees, agents, contractors or invitees
(other than Lessee). Insofar as the claims, actions, causes of action, litigation, proceedings, costs
or expenses relate to events or circumstances that occur during the term of this Lease, this
section will survive the expiration of the term of this Lease or any earlier termination of this
Lease. The extent of liability is in no way limited to, reduced, or lessened by the insurance
requirements contained elsewhere within this Lease.
6. Paragraph 20 shall be amended to show the parties addresses as follows:
Lessor: County Administrator, 1100 Simonton Street, Key West, FL 33040
Lessee: Morgan Ocean Sunrise, LLC, c/o Robert Moser, 63 Putnam Street, Saratoga Springs, NY
12866
7. Paragraph 24 shall be amended to add the following:
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 this Lease
Agreement. Lessee shall provide the documents to Lessor thirty (30) days before closing to
verify that the appropriate language is in the proposed documents.
8. Paragraph 4 shall be amended as follows:
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Consideration: Lessee shall pay Fifty Dollars ($50.00) per month commencing on the effective
date of this Amendment to the Clerk of the Board, 500 Whitehead Street, Key West, Florida,
33040.
is Amendment to Lease is binding on the successors and assigns of the parties.
HEREOF, the parties have executed this Amendment to Lease.
N MONROE
�` 4�► , _ 4 OLHAGE, CLERK COUNTY
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The foregoing instrument was acknowledged before me this 14 day of ,
2011, by
C � as * A � kr — of Morgan Ocean Sunrise, LLC, a New York limited
liability company, who is ] personally known to me, or who [ ] has produces
as identification
Notary Publ
- JILL E GARVEY
NOTARY P UBLIC STATE OF NEW YORK
MONROE COUNTY
LIC. #01 GA620902
COMM. Eg JU 13,203
Print Name:
My Commission expires:
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EXHIBIT A
TO
AMENDMENT TO LEASE
SECOND AVENUE
Commencing at the intersection of Second Avenue and East Second Street thence run S.44.37'16 "E.
along the centerline of said Second Avenue for a distance of 25.00 feet to a point on the Southwesterly
projection of the Southeasterly right of way line of East Second Street; thence run N.45.1746 "E. along
said Southwesterly projection of East Second Street for a distance of 9.60 feet to the POINT OF
BEGINNING of the area herein described; from said POINT OF BEGINNING continue N.45.17'46 "E. for a
distance of 45.36 feet to a point of curvature of a circular curve concave to the East and having for its
elements a radius of 25.00 feet, and a delta angle of 89.55'02 ";thence run along the arc of said curve in
a Southwesterly, Southerly and a Southeasterly direction for a distance of 39.23 feet; thence run
S.44.37'16 "E. along the Northeasterly right of way line of Second Avenue for a distance of 151.90 feet;
thence run 5.45.22'44 "W. for a distance of 20.40 feet; thence run N.44.37'16" W. along a line 20.40 feet
Southwesterly of and parallel to the Northeasterly right of way line of Second Avenue for a distance of
176.83 feet back to the POINT OF BEGINNING . Containing 3,741.3 square feet, more or less.
Doc# 1856141
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Page 1 of 2
EXHIBIT A
AMENDMENT TO LEASE SECOND AVENUE
\.
10%p ♦\ �� g °/' SKETCH OF
\ '� ' % •♦ DESCRIPTION
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Tangent• 24.96' +\ \ , o C \ ♦,�
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r a portion of SECOND AVENUE adjacent to Lot 1, Block 4,
MANDALAY according to the Plot thereof, as recorded in Plat Book 1, at ♦♦ ���,�
Page 194 of the Public Records of Monroe County, Florida, and being more
particularly described as follows: \•♦ P O \
♦,
COMMENCING at the intersection of Second Avenue and East Second Street i P \
thence run S.44 along the centerline of sold Second Avenue For a Ssr ateni
distance of 25.00 feet to a point on the Southwesterly projection of the `
Southeasterly right of way line of East Second Street; thence run
N.45'17'46'E. along said Southwesterly projection of East Second Street For / E , r
a distance of 9.60 feet to the POINT OF BEGINNING "_
'. " _ . . herein � VIA LE
described: From said POINT OF BEGINNING continue N.45'17'46'E. for a distance r
of 45.36 Feet to a point of curvature of a circular curve concave to the I P.S.M. - Professional Surveyor & Mapper
East and having For its dements a radius of 25.00 Feet, and a delta angle P.L.S. - Professional land Surveyor R. - Record
of 89 thence run along the arc of said curve in a Southwesterly, LS - Land Surveyor Fnd. - Found
Southerly and a Southeasterly direction For a distance of 39.23 feet; LB - Licensed Business Fr. - Wood frame
thence run S.44'37'16'E. along the Northeasterly right of way line of Second C. - Calculated PI. - Plot
Avenue For a distance of 151.90 feet; thence run S.45'22'44'V. For a D. - Deed M. - Measured
distance of 20.40 feet; thence run N.44'37'16'V. along a line 20.40 Feet Fin.nr. - finished floor cone. - Concrete
Southwesterly of and parallel to the Northeasterly right of way line of El. - Elevation car. - carrier
Second Avenue For a distance of 176.83 feet back to the POINT OF BEGINNING. CS - concrete block FP - fence post
Containing 3.741.3 square feet, more or loss. C.F.T. - conc. fish table A/C . air Conduit
W.F.T. - and fish table Cond. - CoMuit
P.F.T. - plastic fish table F.S. - from* shed
PK - PARKER KALON FASTENERS M.S. -metal shed
MAC. - Magnetic Nail P.S. - plastic shed
U.G.E. - Underground Electric Add. - addition
U.G.T. - Undergound telephone Plt. - planter
WL - Buried wolerline R.O.W. - right of way
N.I.S. - not in service T•R. -telephone riser
Doc# 1856141 I t id - - 1 ght /lamp pole
C.B.S. - concrete black shed Bolt. Balcony
LPCT F quid petroleum gas lank Fnc. - fence
Bk# 2539 Pg# 1639 R d./ . P nl di Beginnin g Bldg. - building
Rod. /N.R. - Rodiol /Non- ROdial Res. - bu idence
P.O.C. - Point of Commencement
N,S,E.W - North, South, East, West G.A. - guy anchor
P.C.P. - permenent control point
NOTES: P.R.C. -Point of reverse Curvature
P.C.C. - Point of Compound Curve
1. This Sketch was made for the ' SPECIFIC PURPOSE of defining an P.C. /P.T. - Point of Curvolure/Tongency
Area. 7h! area was determined by the location of existing imprOVenenss in P.R. - permanent reference monument
Second Avenue adjacent to Lot 1, Block 4, MANDALAY, Plat Book 1, Page 194, NGVD - National Geodoctic Vertical Datum
-
P NAVD North American Vertical Datum
ublic Records of Monroe County, Florida, by this firm on 8 - 25 - 11 Drawing A r n Mean Hig W ater .n
No. 11023. This is 'NOT A BOUNDARY SURVEY'. a Nail PK Nail Found
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2. The bearing base For this sketch is shown thus: (w) and was derived From p Noil /PK nail & disc stamped LB #7682 set
the adjoining Plat of KEY LARGO NORTH, recorded in Plot Book 7, at Page 22, • Pipe Found
of the Public Records of Monroe County, Floride. E) Pipe /cop stomped US /7662 set
• Robot Found
Wood Utility Pole
E — Overhead electric fines
T - Overhead telephone lines
C - Overhead cable television
X - Chainlink fence P Plastic fence
+ -Wood fence M Metal Fence
• Water Meter
�N -RICIf o Rock
_$ 9J? Z— Concrete Davit Base
Note: Ali pipes set are 7/6' (outside aiameier)
M J with cop stamped LB /7882
registration number. All PK nail /MAG nail or
60d spikes set am with discs stomped with
LB /7882
y� Unless otherwise indicated, all pipes fountl aro
Q ' h nff & map 4i9�' 8' 7/ (outside diameter).. -'-'
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Phone: (305)853 -0066 / Fox: (3085 =02
SURVEYING & MAPPING. LLC 88888 Overseas Hiqhway / P.O. Box e- 10. "Tov 7ROr.' F�. 3�076t
I Client: Shine
Florida Certificate of Authorization No. LB 17882
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SIGNATURE AND
v, THE QP4FINAL
RAISED' SEAL
OF A FLORIDA
LICENSED SURV�
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I hereby certify that the survey hereon was performed under my direct
Section 6 Township 62 South. Range 39 East supervision and is true and correct to the best of my knowledge' "
belief. This s rvey myls�,ha requm
ireents of Ch. 5J -17 of the Florida
Key Largo Monroe County, Florida Adrnini rye C M. um Technical Standards for Florida Sury ins
wes an oppers ur dFt to Ch. 472.027, F.S. w, V
Drofted: 8 -29 -11 Fieldbook No. N.A. -
Drowing No. 11023A Drown By: D.S.M. Scale: 1" = 40' David S. Massey. P.S.M. # 5125
PAGE 2 OF 2
E%HIBIT Be
AMENDMENT TO LEASE SECOND AVENUE
fC T 1 — B L O C K 4
T,I,I,F, DEED NO, 22605
Ir 125,04' C 3 M, A a s� 4576
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Doc# 1856141
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'CRIPTIONI
g hproverents located In Second Avenue
nt to Lot 1, Block 4, MANDALAY, according
at thereof, as recorded In Plat Book 1,
94 Of the Public Records of Monroe County,
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NOTES
1. This sketch was rade For the 'SPEC:FIC PURPOSE' of showing DE.}
the exls ting above ground Inpr over_is located In t S
he area
of the Description hereon. Exlst'rj
2. No urderground utllltles or structure *ere located For this ad Jac 0
sketc, to th4
3, The bearlrg base for this sketch Is shcwn tnus- (e) and Page
derW ed Fran the adJ.IrIng Plat of KEY LARGO NORTH having a Fl^� IM'
bear'rg of '.44'3716'., along the Southwester,y right of way
of Second Avenue
MONROE COUNTY
OFFICIAL RECORDS
Doc# 1856141
Bk# 2539 Pg#
1641
25' Plat 25'
Plat I t
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( Plat Book 7, Page 22 )
NOTES
1. This sketch was rade For the 'SPEC:FIC PURPOSE' of showing DE.}
the exls ting above ground Inpr over_is located In t S
he area
of the Description hereon. Exlst'rj
2. No urderground utllltles or structure *ere located For this ad Jac 0
sketc, to th4
3, The bearlrg base for this sketch Is shcwn tnus- (e) and Page
derW ed Fran the adJ.IrIng Plat of KEY LARGO NORTH having a Fl^� IM'
bear'rg of '.44'3716'., along the Southwester,y right of way
of Second Avenue
MONROE COUNTY
OFFICIAL RECORDS