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Item D07BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: DECEMBER 17, 2008 Division: TDC Bulk Item: Yes X No _ Department: Staff Contact Person/Phone #: Maxine Pacini 296-1552 AGENDA ITEM WORDING: Approval of an Amendment to Agreement to exercise option to extend Agreement with C.B. Schmitt Real Estate Co. Inc. to provide office and parking space for the Monroe County Tourist Development Council administrative office. ITEM BACKGROUND: Pending TDC approval at their December 9, 2008 Meeting PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: Amendment to exercise option to extend Agreement. STAFF RECOMMENDATIONS: Approval TOTAL COST: $8,705.60 per month COST TO COUNTY: $8,705.60 per month BUDGETED: Yes X No SOURCE OF FUNDS: TDC REVENUE PRODUCING: Yes X No OUNT PER MONTH Year APPROVED BY: County Atty X 4/urc asing XPRisk Management X DOCUMENTATION: DISPOSITION: Revised 11/06 Included X Not Required AGENDA ITEM # MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: C.B. Schmitt Real Estate Co Contract # Inc. Effective Date: 3/l/09 Expiration Date: 2/29/2014 Contract Purpose/Description: Approval of an Amendment to Agreement to exercise option to extend Agreement with C.B. Schmitt Real Estate Co. Inc. to provide office and parking space for the Monroe County Tourist Development Council administrative office. Contract Manager: Maxine Pacini 3523 TDC # 3 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 12/17/08 Agenda Deadline 12/2/08 CONTRACT COSTS I Total Dollar Value of Contract: $ 8,705.60 Current Year Portion: $ Budgeted? Yes® Grant: $ County Match: $ per month No ❑ Account Codes : 116-76007-530440-T-0-96-237-X-530440 Estimated Ongoing Costs: $_ (Not included in dollar value above ADDITIONAL COSTS /yr For: (eg. maintenance, utilities, CONTRACT REVIEW Changes initorial, salaries, etc. Dte In Needed Re er Division Director /c Yes❑ No Risk Manag ent ,1�� �il6 Yes❑ NoE2� 01 V. O. B./Purchasing 10 610� Yes❑ No❑ County Attorney /a* Yes❑ NoQ�J C. Hall Comments: Date Out .o f o -Cie OMB Form Revised 2/27/01 MCP #2 ADDENDUM TO AGREEMENT THIS ADDENDUM to Lease Agreement is made and entered into this day of 2008 by and between C.B. SCHMITT REAL ESTATE CO. Inc. (hereinafter "Lessor"), a corporation incorporated in the State of Florida, whose address is 1201 White Street, Suite B, Key West, Florida 33040 and MONROE COUNTY (hereinafter "Lessee"), a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040. WITNESSETH WHEREAS, there was an Agreement entered into on December 9, 1998, between the parties, to provide office and parking space for the Monroe County Tourist Development Council administrative offices (hereinafter °TDC"); and WHEREAS, the original agreement allows for an option to extend the lease agreement for two (2) additional five-year (5) terms; and WHEREAS, there was an Addendum to Agreement entered into on November 19, 2003 to exercise one (1) of the additional five-year (5) terms; and WHEREAS, the original agreement states that should the second five-year option be elected, rent will be re -negotiated at fair market rent in effect at that time; and WHEREAS, the Monroe County Tourist Development Council recommends that the agreement be extended for a term of five (5) additional years; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to hereby amend the agreement entered into on December 9, 1998 and amended on November 19, 2003 as follows: The following language shall be added to Paragraph 2. Term: The term of this Addendum to Lease Agreement is five (5) years, running from March 1, 2009 through February 29, 2014. 2. Paragraph 4 shall read: Rent: For the use of the premises, the LESSEE must pay the LESSOR the sum of $8,705.60 per month (March 1, 2009 through to February 29, 2014) due in monthly installments on the first day of each month. The monthly payments shall be remitted to C.B. Schmitt Real Estate Co., Inc. 1201 White Street, Suite B, Key West, FL 33040 upon receipt of a monthly invoice. Monroe County's performance and obligation to pay under this lease agreement is contingent upon annual appropriation by the Monroe County Board of County Commissioners. Additionally, LESSEE shall pay to LESSOR, upon receipt of an invoice and proof of LESSOR's payment of property taxes, 48% of the property taxes for 1201 White Street. LESSOR shall submit to LESSEE by September 1" of each year a TDC Office Lease Agreement Effective March 1, 2009 - February 29, 2014 copy of the proposed annual property tax assessment, in order for the amount of payment in the succeeding fiscal year to be established in the budget. 3. The remaining provisions of the contract dated December 9, 1998, and amended November 19, 2003, not inconsistent herewith shall remain in full force and effect. (SEAL) Attest: DANNY L. KOLHAGE, Clerk 0 Deputy Clerk (CORPORATE SEAL) Attest: TDC Office Lease Agreement Effective March 1, 2009 - February 29, 2014 Board of County Commissioners of Monroe County Mayor/Chairman Lessor, C.B. Schmitt Real Estate Co., Inc. M President Third Party, 3406 North Roosevelt Blvd. Corp By: resident MONROE CG, i 'FO ?NEY AFT ROVES ;; icy 1-ML1 YNTt-', , kd. ; l,l. _L ASSISTANT C, ,' iTY ,�TT,QRNEY 2 ADDENDUM TO AGREEMENT THI ADDENDUM to Lease Agreement is made and entered into this day of ��� y 2003 by and between C.B. SCHMITT REAL ESTATE CO. Inc. (hereinafter "Lessor"), a corporation incorporated in the State of Florida, whose address is 1201 White Street, Suite B, Key West, Florida 33040 and MONROE COUNTY (hereinafter "Lessee"), a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040. WITNESSETH WHEREAS, there was an Agreement entered into on December 9, 1998, between the parties, to provide office and parking space for the Monroe County Tourist Development Council administrative offices (hereinafter "TDC"); and WHEREAS, the original agreement allows for an option to extend the lease agreement for two (2) additional five-year (5) terms; and WHEREAS, the original agreement states that if the option to extend is exercised, the rent will be adjusted for each of the extended term years in accordance with the percentage change in the Consumer Price Index (CPI), National Index for Wage Earners and Clerical Workers, and shall be based upon the annual average CPI Computation from January 1st through December 31st of the previous year; and WHEREAS, the Monroe County Tourist Development Council recommends that the agreement be extended for a term of five (5) additional years; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to hereby amend the agreement entered into on December 9, 1998 as follows: The following language shall be added to Paragraph 2. Term: The term of this Addendum to Lease Agreement is five (5) years, running from March 1, 2004 through February 29, 2009. Lessee shall have the remaining option to extend this Lease Agreement for one (1) additional five-year (5) term. 2. The following language shall be added to Paragraph 4. Rent: . The first year's rent under this agreement addendum has been recomputed to reflect the change in CPI. The Lessee must pay the Lessor the sum of $7,503.60 per month, commencing March 1, 2004, on the first day of the month. Thereafter, the amount of rent due shall be adjusted each of the extended term years in accordance with the percentage change in the CPI and shall be based upon the annual average CPI Computation from January 1st through December 31st of the previous year. ,-The _ remaining provisions of the contract dated December 9, 1998, not z� 4Inconsistent herewith shall remain in full force and effect. (SEALL., .. Att est QAtVNY L. KOLHAGE, Clerk Board of County Commissioners of Monro C By: ..,. Deputy Clerk (CORPORATE SEAL) Attest: e o my y Mayor/Chairman Lessor, C.B. ide itt Real Estate Co., Inc. Third Party, 3406 N, h Roosevelt Blvd. Corp By:% President MONROE COUNTY ATTORNEY ROVED AS TO ZANN TTON ASSISTA T OUNTY ATTORNEY Date- 2 MANNEVITNTIRTM This Lease Agreement is made and entered into this day of 1� Alt jj If� 1998 by and between C. B. SCHMITT REAL ESTATE CO. Inc. (hereinafter "Lessor"), a corporation incorporated in the State of Florida, whose address is 1201 White Street, Suite B, Key West, Florida, 33040 and MONROE COUNTY, a political subdivision of the State of Florida, (Hereinafter "Lessee"), whose address is 5100 College Road, Stock Island, Key West, Florida 33040. WHEREAS, the LESSOR has a binding contract to purchase the property situated at 1201 White Street, Key West; and WHEREAS, LESSEE needs office and parking space for the Monroe County Tourist Development Council administrative offices (hereinafter"TDC"); NOW THEREFORE, the parties agree as follows: 1. PROPERTY, The LESSOR, leases exclusively to the LESSEE office space and 3 parking spaces as shown on site plan - Exhibit 'A' as modified in Exhibit V, hereafter "the premises" at 1201 White Street, Key West, Monroe County, Florida. Exhibit A is attached and made a part of this Lease Agreement. 2. TERM, The term of this Lease Agreement is five (5) years running from March 1, 1999 through February 29, 2004. LESSEE shall have options to extend this Lease Agreement for two (2) additional five-year (5) terms. 3. USE AND CONDITIONS. The premises shall be used solely for the purposes of the Tourist Development Council Administration. If the premises are used for any other purpose, the LESSOR shall have the option of immediately terminating this Lease Agreement. The LESSEE will further use and occupy said premises in a careful and proper manner for purpose of office use, and not commit any waste thereon. LESSEE will not cause, or allow to be caused, any nuisance or objectionable activity of any nature on the premises. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terms may be defined under any state or federal laws or regulations or as those terms are understood in common usage, are specifically prohibited. The LESSEE will not use or occupy said premises for any unlawful purpose and will, at LESSEE's sole cost and expense, conform to and obey any present or future ordinance and/or rules, regulations, requirements and orders of governmental authorities or agencies respecting the use and occupation of said premises. 4. RENT, For the use of the premises, the LESSEE must pay the LESSOR the sum of $5,000.00 per month for the first seven months, and $7,400.00 per month due in monthly installments on the first day of the month thereafter, for the remainder of the five-year term. The monthly payments shall be remitted to C. B. Schmitt Real Estate Co., Inc. 1201 White Street, Suite B, Key West, FL 33040 upon receipt of a monthly invoice. Should the first extension option be exercised, rent shall be adjusted each of the extended term years in accordance with the percentage change in the Consumer Price Index (CPI), National Index for Wage Earners and Clerical Workers, and shall be based upon the annual average CPI Computation from January 1st through December 31 st of the previous year. Should the second five-year option be elected, rent will be re -negotiated at fair market rent in effect at that time. Monroe County's performance and obligation to pay under this Lease Agreement is contingent upon annual appropriation by the Monroe County Board of County Commissioners. Additionally, LESSEE shall pay to LESSOR, upon receipt of an invoice and proof of LESSOR's payment of property taxes, 48% of the property taxes for 1201 White Street. LESSOR shall submit to LESSEE by September 1st of each year a copy of the proposed annual property tax assessment, in order for the amount of payment in the succeeding fiscal year to be established in the budget. 5. TAXES, The LESSEE is exempt from taxes. If any of the operations of LESSEE are subject to taxes other than property taxes as outlined in paragraph 4, LESSEE shall be solely responsible therefor. 6. INSURANCE. LESSEE shall, throughout the term of this Lease Agreement, maintain self- insurance as is deemed necessary by LESSEE to protect County against any claims which may arise as a result of LESSEE's operations at the premises. The LESSEE must keep in full force and effect the required insurance during the term of this Lease Agreement. This requirement shall not operate as a waiver of any sovereign immunity set by State statute. LESSEE agrees that the 3406 North Roosevelt Blvd. Corp., the operator of the Tourist Development Council Administration Office, shall include LESSOR as a named co-insured on their general liability insurance policy which shall be in the amount of one half million dollars. By signature on this document, 3406 North Roosevelt Blvd. Corp. agrees to maintain such insurance and to name LESSOR as a co- insured. 2 7. CONDITION OF PREMISES LESSOR shall build out the 4016 sq. ft. office space according to the plan submitted attached hereto (Exhibit'A'), as modified by Exhibit'B' which moves a hallway and window but retains the same total square footage, meeting all city code requirements. This build -out plan includes fully zoned central air conditioning, which has already been installed in the premises but excepts all furniture and furnishings on plan other than as stated herein. The build -out plan further includes floor coverings (carpeting at $17.00 per square yard goods only), walls and partitions with sound insulation complete to underside of the existing roof, solid core doors, electrical lines and outlets, telephone and computer wiring for no less than 25 pair, 2' x 2' acoustical ceiling tiles, lighting, painting the walls, reception desk (carpet front, laminated top), windows added as indicated on Exhibit 'A' and as modified in Exhibit 'B', janitors closet with sink, lunch room with sink, copy room with sink and such other items as are specified in the preliminary plan layout provided by TDC and which is incorporated herein as Exhibit "A" and Exhibit'B' by reference. The LESSEE must keep the premises in good order and condition. The LESSEE must promptly repair any interior damage which LESSEE, its agents and invitees cause to the premises. At the end of the term of this Lease Agreement, the LESSEE must surrender the premises to the LESSOR in the same good order and condition as the premises were on the commencement of the term, normal wear and tear excepted. The LESSEE is solely responsible for any improvements and appurtenances placed on the premises. 8. IMPROVEMENTS The LESSEE guarantees the premises shall remain office or warehousing space as designated by Exhibit 'A' as modified in Exhibit 'B'. No structure or improvements of any kind shall be placed upon the premises without prior approval in writing by the LESSOR and acquiring building permits or other permits required by law. Any such structure or improvements shall be constructed in a good and workmanlike manner at LESSEE's sole cost and expense and any liens resulting from such work shall be bonded by LESSEE. Subject to any landlord's lien, any structures or improvements constructed by LESSEE shall be removed by the LESSEE at LESSEE's sole cost and expense, by midnight on the day of termination of this Lease Agreement or extension hereof, and the premises restored as nearly as practical to its condition at the time this Lease Agreement is executed unless the LESSOR accepts in writing delivery of the premises together with any structures or improvements constructed by LESSEE. 3 If the first five-year extension is elected, LESSOR shall repaint and replace carpeting when LESSEE has occupied the premises a total of 7.5 years from the commencement of this Lease Agreement. 9. HOLD HARMLESS, The LESSEE is liable for and shall defend, release, discharge, indemnify and hold harmless the LESSOR, and against any and all claims, demands, causes of action, losses, costs and expenses of whatever type - including investigation and witness costs and expenses and attorneys' fees and costs - that arise out of or are attributable to the LESSEE's operations on the premises except for those claims, demands, damages, liabilities, actions, causes of action, losses, costs and expenses that are the result of acts or omissions of the LESSOR, its employees and agents. 10. NON-DISCRIMINATION, The LESSEE for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that no person on the grounds of race, color, or national origin and City of Key West Human Rights ordinances shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in, the use of premises or in the contracting for improvements to the premises. 11. TERMINATION. Termination of this Lease Agreement shall be February 29, 2004. LESSEE shall have the options to extend this Lease Agreement for two (2) additional five-year (5) periods unless terminated earlier pursuant to Paragraph 12. In order to exercise the options granted herein, LESSEE must exercise the options in writing by certified mail at least ninety (90) days prior to the end of the original lease term or any extensions therefore if a prior option has been exercised. 12. BREACH OF CONTRACT LESSEE may terminate this Lease Agreement if and when funding is not appropriated, upon provision of written notice to LESSOR no less than thirty (30) days prior to the effective date of termination. Either party may terminate this Lease Agreement for a material breach of this Lease Agreement upon giving to the other party written notice of termination no less than sixty (60) days prior the effective date of termination. A material breach by the LESSEE shall include, but not be limited to, non- payment of rent or changing the use of the premises. A material breach by the LESSOR shall include, but not be limited to, non-payment of taxes, failure to maintain common areas or to keep the roof water -tight, and failure to maintain the air conditioning system excluding normal cleaning and filter maintenance. Either party may have thirty (30) days to cure a non -monetary breach after receiving written notice of such breach. 4 f 13. DEFAULT -WAIVER. The waiver by the LESSEE or the LESSOR of an act or omission that constitutes a default of an obligation under this Agreement does not waive another default of that or any other obligation. 14. ASSIGNMENT. LESSEE may not assign or sublet any portion of the premises or this Agreement or assign or subcontract any of its obligations under this Agreement without the written approval of the LESSOR. All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of the parties. By signature hereon, the Property Owner (Third Party) as of the commencement of this Lease Agreement, agrees to honor and abide by the terms of this lease if, for any reason, the contracted purchase is not consummated. 15. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the United States, the State of Florida, and Monroe County, whether in effect on commencement of this Lease Agreement or adopted after that date. LESSEE shall have the rights and responsibilities in the Mortgage Subordination and Non -disturbance Addendum, attached hereto as Exhibit'C'. 16. INCONSISTENCY Any item, condition or obligation of this Agreement that is in conflict with the items listed in this paragraph is superseded to the extent of the conflict. 17. GOVERNING LAWSIVENUE This Agreement is governed by the laws of the State of Florida and the United States. Venue for any dispute arising under this Agreement must be in Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a reasonable attorney's fee and costs. 18. CONSTRUCTION This Lease Agreement has been carefully reviewed by both parties. Therefore, this Agreement is not to be construed against any party on the basis of authorship. 19. UTILITIES: LESSEE shall pay all electric, telephone, water, gas, sewer and other utilities provided or brought to the premises in LESSEE's space including LESSEE's electric for signage. 20. SIGNAGE: LESSOR shall not place any sign upon the exterior of the premises without written approval of LESSOR which shall not unreasonably be withheld. 21. CONDEMNATION: In the event that any portion of the floor area is taken by condemnation or conveyed in lieu thereof, then any square footage of the total floor area shall be reduced by the number of square feet taken and the rental payment reduced by a pro -rated amount. LESSEE may terminate this lease upon condemnation if more than ten (10) percent of the premises is condemned. 5 22. REAL ESTATE COMMISSION Neither party has employed a Real Estate broker and no commissions are due from LESSEE to LESSOR. 23. NOTICES. Notices in this Lease Agreement, unless otherwise specified, must be sent by certified mail to the following: To COUNTY: To LESSEE County Attorney C.B. Schmitt Real Estate Company, Inc. 500 Whitehead Street 1201 White Street, Suite B Key West, FL 33040 Key West, Florida 33040 24. ETHICS CLAUSE: LESSOR warrants that he/it has not employed retained or otherwise had act on his/its behalf any former COUNTY office or employee in violation of Section 2 or Ordinance No. 10-1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the COUNTY may, at its discretion terminate this contract without liability and may also, at its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former or present COUNTY officer or employee. 25. PUBLIC ENTITY CRIMES: A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transaction business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor lists. 26. FULL UNDERSTANDING This Lease Agreement is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This Agreement cannot be modified or replaced except by another written and signed agreement. IN WITNEESS WHEREOF, each parry has caused this Agreement to be executed by its duly authorized (SEA ATTE 'I ANNY L)<OL , AGE, CLERK By Wit(iess By Gt ,c��lcd� /n Witness --kA-f�mt - - Witness Witness BOARD OF COUNTY COMMISSIONERS OF MON'ROE COUNTY,/FLORIDA yor//Chairman LESSOR COMPANY Title A% s THIRD PARTY By 406 NORT OSEVELT BLVD. CORP. By APPROVED AS TO FORM AND LEGAL SUFFICIE BY U ANNE Ay. H ON DATI A 7 i /� U Ri T V14i '•L i �C � tw ♦ r. r. 1 ' I` •.1"'. "yam `•.i•t... 11: " + �� ✓ •' � �1� " V ./. ';�'.a. .t. - ���ieT�1Xte'`.t�''��:.`•.•';,.,.r.L�. �v. t••. -:�... ,.f'�,,•O��• 1y�, :it"r.". :•. •:j�v.�SJ+:.='R •'e.�:i'�ir:�. •'L':.•`,�rl l�%�•_�:n _" r" :y' " ^:mac;f.• yr �� •�h� y � r � .. .t ..� .. ice:,.,. � • _ a ct� r•� � r s '7 s t••i it a �.� : r. � •: •..,•• ., ;�.•. ••. 't7' EXHIBIT `C' All rights and interest of LESSEE hereunder are and shall be and remain subject, subordinate and inferior to all bona fide mortgages heretofore and hereafter given and encumbering the Demised Premises, or any part thereof, and shall likewise be subordinate and inferior to all renewals, modifications, consolidations, replacements and extensions of any such mortgage, and the rights of the holder of any such mortgage shall at all times be and remain prior and superior to all rights and interest of LESSEE. The provisions of this paragraph shall operate as a subordination agreement with respect to all such mortgages and all renewals, modifications, consolidations, replacements and extensions thereof. If the holder of any such mortgage or any person, firm or corporation agrees to make a loan secured by a mortgage on the Demised Premises shall require confirmation of any subordination for which provision is herein made, or separate subordination agreement with respect to any mortgage transaction, LESSEE shall execute such confirmation or subordination agreement in the form as required by such mortgage holder or such person, firm or corporation agreeing to make a loan secured by a mortgage on the Demised Premises, and the execution of same shall not diminish or affect the liability of the LESSEE hereunder or of any other party responsible for or guaranteeing the obligations of said LESSEE under this lease agreement. So long, as the LESSEE hereunder shall pay -the- rent provided for in this Lease Agreement and comply with, abide by and discharge the terms, conditions, covenants, and obligations on its part, to be kept and performed hereunder and shall attorn to the successor in title notwithstanding the foregoing, the peaceable possession of the LESSEE in and to the Demised Premises for the term of this Lease Agreement or any extensions, shall not be disturbed, in the event of the foreclosure of any mortgage, by the purchaser at such foreclosure sale or such purchaser's successor in title.