Item C28 C28
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5
Michelle Lincoln,District 2
James K.Scholl,District 3
m' David Rice,District 4
Board of County Commissioners Meeting
September 20, 2023
Agenda Item Number: C28
2023-1464
BULK ITEM: Yes DEPARTMENT: Facilities Maintenance
TIME APPROXIMATE: STAFF CONTACT: Kevin Wilson
N/A
AGENDA ITEM WORDING:
Approval of Second Amendment to Lease Agreement with Wharf SMI, LLC, to reflect a lease
extension of the lease term for the building which houses the Public Defender's Marathon Office. This
Amendment seeks approval to amend the lease extending the current term for a period of three (3)
years, reducing the rental space and price, providing for an additional three (3) optional 1-year
renewals, change the Notice Address, and adding other language requested by the Lessor.
ITEM BACKGROUND:
The County is obligated to provide adequate office space for the Public Defender and State Attorney.
Their offices have been in this building at 4695 Overseas Highway in Marathon for at least thirteen (13)
years. The initial building lease expired on June 30, 2012, but the County continued renting the building
on a month-to-month basis until a new three (3) year lease agreement was approved by the BOCC on
September 16, 2020.
The State Attorney has now relocated to another County building in Marathon. At that time, the Public
Defender had been seeking additional space in Marathon. So, staff contacted the previous owner, Wharf
Marina, Inc., asking to release the former Public Defender space (1,200 SF) and allow the Public Defender to
move into the space vacated by the State Attorney (2,400 SF). The County and Wharf Marina, Inc. agreed
then to a new three (3) year lease agreement with reduced rent since the lease was for the entire building
(3,600 SF). The Lease provides for termination should County- owned space become available. The annual
rent commenced at$72,000.00 for the entire building with a 3 % increase annually.
On July 13, 2022, Wharf Marina, Inc. sold the building to Wharf SMI, LLC. On May 17, 2023, the BOCC
approved a First Amendment to acknowledge the sale of the property and the consent of Wharf Marina SMI,
LLC to take possession of the real property as Lessor subject to the current lease, to reflect Wharf SMI as the
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new owner of the real property, to amend the name and address of the Lessor and"rental remit to address"in
Articles 11, RENTALS, and XIX, NOTICES, and correct the address for Notice to Monroe County, as Lessee,
in Article XIX of the Original Agreement.
The Public Defender's office currently does not utilize all of the lease space. The owner approached the
County about reducing our leased area so the owner could utilize part of the building as an office. This
Second Amendment seeks approval to amend the lease to extend the current lease for a period of three
(3) years with the new term commencing September 1, 2023, reduce the space and rent accordingly,
extend the erm of the Lease for an additional three (3), optional 1-year renewals, change the Notice
Address, and add language requested by the Lessor.
This Second Amendment seeks approval to amend the lease to extend the current lease for a period of
(3) three years, reduce the space and rent, extend the Term of the Lease for an additional(3) three,
optional 1-year renewals, change the Notice Address and add language requested by the Lessor. Staff
recommends approval of this Second Amendment.
PREVIOUS RELEVANT BOCC ACTION:
May 17, 2023 BOCC approved a First Amendment Agreement with Wharf SMI to
acknowledge the sale of the property and the consent of Wharf Marina SMI, LLC to take possession of
the real property as Lessor subject to the current lease, to reflect the new owner of the real property as
Wharf Marina SMI, LLC, amend the name and address of the Lessor and"rental remit to address" in
Articles II, RENTALS, and XIX,NOTICES, and correct the address for Notice to Monroe County, as
Lessee, in Article XIX of the Original Agreement.
September 16, 2020 BOCC approved a new three (3)year Lease Agreement with reduced rent to
lease the building for the full space (3,600 SF) for the Marathon Public Defender Office. The Lease
provides for termination should County-owned space become available. The annual rent commenced at
$72,000.00 for the entire building with a 3 % increase annually.
CONTRACT/AGREEMENT CHANGES:
This Second Amendment seeks approval to amend the lease to extend the current lease for a period of
(3) three years, reduce the space and rent, extend the Term of the Lease for an additional(3) three,
optional 1-year renewals, change the Notice Address, and add language requested by the Lessor.
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
09-20-2023-OCEAN VIEW- 2nd Amendment to Lease with Monroe County Public Defender-Legal
Stamped.pdf
05-17-2023-1st Amendment-C1 - Wharf SMI-Exec.pdf
09-16-2020 Item T1_Executed Lease_Public Defender_Marathon.pdf
ESTOPPEL CERTIFICATE to new owner July 2022-Exec.pdf
Special Warranty Deed 7-13-22 on sale by Wharf Marina Inc_to Wharf SMI.pdf
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FINANCIAL IMPACT:
Effective Date: September 01, 2023
Expiration Date: October 1, 2026
Total Dollar Value of Contract: $76,384.80 remaining on lease term
Total Cost to County: $76,384.80 remaining on lease term
Current Year Portion: $76,384.80 (FY23)
Budgeted: Yes
Source of Funds:
CPI: No
Indirect Costs: Staff and maintenance
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant: No
County Match: N/A
Insurance Required: N/A
Additional Details: This Second Amendment is an extension to the lease. The current lease expires
September 30, 2023, but provides for one optional, three-year lease renewal. The extension provides for
an additional(3), one-year optional renewals.
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SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Second Amendment") is entered into
September 20, 2023 but for all intents and purposes made to be effective as of September 1, 2023 (the
"Effective Date"),by and between WHARF SMI, LLC, a Delaware limited liability company, authorized
to do business in the State of Florida ("Lessor"), and BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida("Lessee").
RECITALS
A. Lessor, as successor-in-interest, and Lessee are the "Lessor" and "Lessee", respectively,
under that certain Lease dated September 16, 2020, as amended by that certain First Amendment to Lease
Agreement dated May 17, 2023 (the "Lease"), pursuant to which Lessee leases from Lessor certain
Premises as more particularly described and defined in the Lease,being deemed to be approximately 3,713
square feet of office space located in the one-story building (the "Existing Premises") located at 4695
Overseas Highway, Marathon, Florida 33050, at the property commonly known as Ocean View Marina
(the "Marina");
B. The Term of the Lease is scheduled to expire on September 30, 2023; and
C. Lessor and Lessee desire to amend the Lease to, among other things, extend the Term of
the Lease, all on the terms and conditions set forth herein.
AGREEMENT
For good and valuable consideration which the parties acknowledge receiving, Lessor and Lessee
hereby agree, and the Lease is amended, as follows:
1. Recitals. The Recitals are confirmed to be true and correct and are incorporated into this
Second Amendment.
2. Application of Lease Terms. Capitalized terms used in this Second Amendment and not
defined herein shall have the meanings assigned to them in the Lease;provided,however,that all references
in the Lease to"the Lease"or"this Lease"or similar references shall be a reference to the Lease as amended
from time to time,including by this Second Amendment.
3. Extension of Lease Term;Renewal Option.Article III of the Lease is hereby amended such
that the Term of the Lease for the Premises is hereby extended for a period of three (3) consecutive years
commencing on September 1, 2023 and expiring at 11:59 p.m. local Florida time on September 30, 2026
(the"Term")unless sooner terminated or extended by written agreement of the parties. Pursuant to Section
IV of the Lease,it is hereby understood and agreed that Lessee has fully exercised the three-year option to
renew the Term of the Lease. All references in the Lease, as amended hereby, and later references in this
Second Amendment to the Lease "Term,"mean the extended Term as extended hereby.
4. Renewal Option. Any prior option or right to extend or renew the Term is hereby deleted
in its entirety. Provided that all conditions and covenants contained herein to be kept and performed by
Lessee shall have been faithfully kept and performed, and no Event of Default then exists, Lessee shall
have three(3)options(each an"Extension Option")to renew and extend the Lease Term,each for aperiod
of one (1) year (each an "Extension Term"), and only by giving notice to Lessor of the exercise of any
such option (an "Exercise Notice") not later than ninety (90) days before the expiration of the term or
renewal thereof.If Lessee does not timely exercise the next available option to extend,then all unexercised
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options will automatically expire.
5. Reduction to Demised Premises. As of the Effective Date,Article I of the Lease is hereby
amended to reduce the Existing Premises by approximately 1,488 square feet of space (defined as "Area
F) such that the "Premises"defined in the Lease will now be a total of 2,225 square feet of space (defined
as"Area 2"),and Exhibit A to the Lease is replaced in its entirety with Exhibit A-Revised attached hereto.
6. Rent for Premises.Nothing in this Second Amendment affects Lessee's obligations as set
forth in the Lease (as amended hereby) to pay rent ("Rent") (including any sales or other taxes thereon)
and any other amounts due under the Lease, accruing and payable for the Premises through August 31,
2023. On and after September 1, 2023,Lessee shall pay Rent in the following amounts in accordance with
the terms of the Lease regarding such payments, as amended hereby:
Time Period Monthly Base Rent Annual Base Rent
September 1,2023 to September 30, 2024 $3,927.26 $47,127.07
October 1, 2024 to September 30, 2025 $4,045.07 $48,540.89
October 1, 2025 to September 30, 2026 $4,166.43 $49,997.11
Rent for each Extension Option, if properly exercised by Lessee, will be paid in the following
amounts in accordance with the terms of the Lease regarding such payments:
Time Period Monthly Base Rent Annual Base Rent
October 1, 2026 to September 30, 2027
$4,291.42 $51,497.03
(Extension Term 1)
October 1, 2027 to September 30, 2028
( $4 420.16 $53 041.94
Extension Term 2)
October 1, 2028 to September 30, 2029
( $4 552.77 $54 633.19
Extension Term 3)
7. Assignment and Subletting. Article XI of the Lease is hereby deleted in its entirety and
replaced with the following:
"No Assignment by Lessee Without Consent of Lessor.Neither Lessee nor its legal representatives
or successors in interest shall,by operation of law or otherwise,assign,mortgage,pledge,encumber
or otherwise transfer this Lease or any part hereof, or sublet the Premises or any part thereof, or
otherwise transfer the interest of Lessee under this Lease, without obtaining the prior written
consent of Lessor,which may be given or withheld in the sole discretion of Lessor. If Lessee is an
entity, the transfer of more than forty-nine percent(49%) of the ownership interests in Lessee, or
the creation or transfer of any interest or right that results in a change of control of Lessee, shall be
deemed an assignment of this Lease requiring the consent of Lessor.Any attempted assignment or
sublease by Lessee in violation of the terms and provisions of this Article XI shall be void and shall
constitute a material breach of this Lease. Anything contained in this Lease to the contrary
notwithstanding, Lessee shall not sublet the Premises on any basis such that the rental or other
amounts to be paid by the sublessee thereunder would be based, in whole or in part, on either(a)
the net income or profits derived by the business activities of the sublessee,or(b)any other formula
such that any portion of the rent payable to Lessor under this Lease would fail to qualify as "rents
from real property" within the meaning of Section 856(d) of the Internal Revenue Code of 1986,
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as amended(the "Code"),or any similar or successor provision thereto.
8. Lessee Insurance. The Lease is hereby amended to add Article XLV as follows:
"Lessee shall maintain with financially responsible insurance companies licensed to do
business in the state where the leased premises is located: (1) a commercial general liability
insurance policy with respect to the leased Premises and its appurtenances (including signs)
with a limit of not less than Five Million and 00/100 ($5,000,000) Dollars (which may be in a
combination of a commercial general liability policy and umbrella coverage); (ii) at Lessee's
option,an all-risk property insurance policy insuring all merchandise,leasehold improvements,
furniture, fixtures, and other personal property, all at their replacement cost; and (iii) at
Lessee's option,business interruption insurance. Lessee shall deliver these insurance policies
or certificates thereof, satisfactory to Lessor, issued by the insurance company to Lessor with
premiums prepaid and thereafter at least thirty(30)days prior to each expiring policy. Lessee's
failure to deliver the policies or certificates, within thirty (30) days after written notice from
Lessor, shall constitute a default and shall entitle Lessor, at Lessor's option, to purchase the
above required insurance at then prevailing market rates, and Lessee shall pay Lessor on
demand the costs thereof. All policies of insurance required of Lessee shall have terms of not
less than one (1)year. Lessee has advised Lessor that Lessee is self-insured and carries excess
liability coverage, and is subject to limited immunity from claims under Section 768.28, Fla.
Stat. Notwithstanding the foregoing, Lessee shall not be required to maintain the all-risk
property insurance policy and/or business interruption insurance set forth in this section of the
Lease, but whether or not Lessee elects to maintain such insurance, Lessee releases and
discharges Lessor,its agents,servants,and employees forever from any claims,actions,losses,
damages, causes of action,manners of action, covenants,bonds, and agreements arising out of
or resulting from losses which would have been covered had Lessee maintained such insurance
coverage.
9. As-Is, Where-Is. Lessee currently occupies the Premises, and Lessee shall be deemed to
have accepted the Premises for the Term of the Lease (as amended hereby) in its "AS IS—WHERE IS,
WITH ALL FAULTS" condition as of September 16, 2020, without any representations or warranties as
to the condition of the Premises made by Lessor or relied on by Lessee. Except for Lessor's repair and
maintenance obligations as expressly set forth in the Lease, as amended,Lessor has no obligations to make,
or contribute to the costs of, any modifications, alterations or improvement to the Premises, and any
improvements to the Premises shall be at Lessee's sole cost.
10. Notices . Article XIX of the Lease is hereby modified to read:
Any notice or correspondence required or permitted pursuant to this Lease shall be in writing
and hand delivered or sent by United States Mail,postage prepaid,to the other party by certified
mail,return receipt requested,or by courier with proof of delivery. Notice is deemed received
by Lessor or Lessee when hand delivered by national courier with proof of delivery or by U.S.
Mail upon verified receipt or upon the date of refusal or non-acceptance of delivery. The place
of giving Notice shall remain the same as set forth herein until changed in writing in the manner
provided in this paragraph. Notice shall be sent to the following addresses:
Lessor's Name and Address: Wharf SMI, LLC
c/o Marina Manager
4681 Overseas Highway
Marathon, Florida 33050
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With copies to: Suntex Marina Investors LLC
17330 Preston Road, Suite 100C
Dallas, Texas 75252
Attn: Brian DeVoss, General Counsel
Lessee's Name and Address: Board of County Commissioners of Monroe
County, Florida
c/o County Administrator
1100 Simonton Street, Room 2-205
Key West, Florida 33040
With copies to: County Attorney
Monroe County
P. O. Box 1026
Key West, Florida 33041
11. Personal Property Limitation. The Lease is hereby amended to add Article XLVI as follows:
"XLVI. Personal Property.Limitation. Lessor and Lessee agree that the fair market value of
personal property located on and used in connection with the Premises and leased to Lessee
under this Lease shall not exceed fifteen percent(15%)of the fair market value of the Premises
and (ii) rent attributable to personal property pursuant to Section 856(d) of the Code, does not
and will not, in any calendar year, exceed fifteen percent(15%) of the total rent payable with
respect to the Premises."
12. REIT Savings. The Lease is hereby amended to add Article XLVII as follows:
"XLVII. REIT Savings. Notwithstanding anything to the contrary in this Lease, in the event
that counsel or independent accountants for Suntex Marina Investors LLC ("Suntex"), the
parent company of Wharf SMI,LLC,determine that there exists a material risk that the receipt
of any Rent by Lessor during a taxable year hereunder would generate income not described in
Sections 856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code (such income, "Non-Qualifying
Income") and thereby create a material risk that Suntex would have Non-Qualifying Income
for the applicable year in an amount in excess of 4.5% of gross income for such year (any
amount so in excess, the "Excess Non-Qualifying Income"), the amount of the Rent paid to
Lessor pursuant to this Lease in such tax year shall not exceed the maximum amount that can
be paid to Lessor in such year without causing Suntex to have Excess Non-Qualifying Income
for such year. If the amount of the Rent paid for any tax year under the preceding sentence is
less than the amount of the Rent which would otherwise be paid to Lessor pursuant to this
Lease (the "Deferred Rent Amount"), then: Lessor shall not be entitled to any such amount,
unless and until Lessor delivers to Lessee, at the sole option of Lessor, (1) an opinion of such
Lessor's tax counsel to the effect that such amount, if and to the extent paid, should not
constitute Excess Non-Qualifying Income, (ii) a letter from the independent accountants of
such Lessor indicating the maximum amount that should be payable at that time to Lessor
without causing Suntex to have Excess Non-Qualifying Income for any relevant taxable year,
in which case Lessor shall be paid such maximum amount, or(iii) a private letter ruling issued
by the Internal Revenue Service indicating that the receipt of any Deferred Rent Amount
hereunder will not cause Suntex or an entity that holds a direct or indirect ownership interest
in Suntex to be ineligible to be taxed as a real estate investment trust pursuant to Section 856
of the Code. The obligations of Lessee to pay any Deferred Rent Amount which is not paid as
a result of this provision shall terminate five years from the original date such amount would
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have been paid without regard to this provision and Lessor shall have no further right to receive
any such amount."
13. Prohibited Persons and Transactions. The Lease is hereby amended to add Article XLVIII
as follows:
"XLVIII. Prohibited Persons and Transactions. Lessee represents and warrants to Lessor that(a)
Lessee is currently in compliance with and shall at all times during the Term (including any
extension thereof)remain in compliance with the regulations of the Office of Foreign Asset Control
("OFAC") of the Department of the Treasury (including those named on the OFAC's Specially
Designated and Blocked Persons List) and any statute, executive order (including the September
24,2001,Executive Order No. 13224 Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit or Support Terrorism (the "Executive Order")), or other
governmental action relating thereto; and (b) Lessee is not, and will not be, a person with whom
Lessor is restricted from doing business under the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act),
H. R. 3152, Public Law 107-56 and the Executive Order and the regulations promulgated
thereunder and including persons and entities named on the OFAC Specially Designated Nations
and Blocked Persons List."
14. Securi . LANDLORD MAKES NO REPRESENTATION OR WARRANTY
REGARDING WHETHER OR NOT LANDLORD WILL PROVIDE SECURITY SERVICES OR,IF SO,
WHAT FORM OF SECURITY SERVICES WILL BE PROVIDED. ANY SECURITY PROVIDED BY
LANDLORD SHALL BE DEEMED TO BE EXCLUSIVELY FOR THE BENEFIT AND PROTECTION
OF LANDLORD'S PROPERTY.
15. No Waiver. Nothing in this Second Amendment waives or limits Lessor's rights and
remedies under the Lease or otherwise, modifies the Lease or cures any Lessee defaults. Lessor expressly
reserves the right to enforce all of its rights and remedies under the Lease or otherwise.
16. Brokers. Lessee represents that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Second Amendment. Lessee shall indemnify, defend
and hold Landlord harmless from and against any and all claims, costs, expenses or liabilities, including
reasonable attorneys' fees, for commissions or other compensation claimed by any broker or agent with
regard to this Amendment as a result of any dealings with Lessee or claiming by or through Lessee.
17. Representations. As of the date of this Second Amendment, Lessee hereby represents and
warrants to Lessor the following, all of which shall survive the expiration or termination of the Lease: (1)
Lessee is the sole legal and equitable owner of the leasehold estate of the "Lessee"under the Lease; (ii)that
the occupant of the Premises is a County Agency as defined in Article XI of the Lease; (iii) Lessee has not
previously assigned or transferred any interest in the Lease (other than as security for any indebtedness) or
sublet the Premises or any portion thereof,except where Lessee has sublet the Premises to a County Agency
as defined in Article XI of the Lease; and(iv) Lessee has full power and authority to execute and deliver
this Second Amendment.
18. Ratification.As amended hereby, the Lease is ratified and confirmed as being in full force
and effect. Each party agrees that, as amended hereby, the Lease is the binding and enforceable obligation
of such party. To the extent of any conflict or inconsistency between this Second Amendment and the terms
of the Lease, the terms of this Second Amendment shall govern and control to the extent, but only to the
extent, of such conflict or inconsistency.Nothing in this Second Amendment shall be deemed a waiver or
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release of any unperformed obligations of Lessor and Lessee under the Lease,including,without limitation,
any delinquent rentals or other delinquent payments payable by Lessee under the Lease. References in the
original Lease to "this Lease", "the Lease"or similar shall be a reference to the original Lease as amended
from time to time,including by this Second Amendment.
19. Counterpart Execution.This Second Amendment may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all
such counterparts shall, collectively, constitute one instrument, but in making proof of this instrument, it
shall not be necessary to produce or account for more than one such counterpart. Executed counterparts of
this Second Amendment may be exchanged by electronic mail,which executed counterparts shall serve as
originals for all purposes.
20. No Default. Lessee acknowledges that as of the Effective Date hereof, Lessor has
performed all of its obligations under the Lease,Lessor is not in default under the Lease, and Lessee has no
claims, counterclaims, set-offs or defenses against Lessor arising out of the Lease or relating thereto.
21. Execution and Delivery of Second Amendment. This Second Amendment shall not be
effective,and Lessee shall have no rights or obligations hereunder,unless and until this Second Amendment
has been executed by Lessor and Lessee, and a copy of such fully-executed Second Amendment has been
received by Lessor and Lessee.
[Signatures on followingpage]
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Lessor and Lessee have executed and entered into this Second Amendment to Lease as of the
Effective Date.
I"rs 'S : LESSOR:
WHARF SMI, LLC,
a Delaware limited liability company
��77 Sam Chavers
P 6oicl4&i":bv: DocuSigned by:
60ti� �t,o�V1A S—F(S�,ikr -5--z--
eea awe aaaarz _. By: �aisa�€�....—..
Kimberly Kearns-Fisher Bryan Redmond
Print Name: Name:
Title:
President
LESSEE:
ATTEST: KEVIN MADOK, CLERK BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA,
By: a political subdivision of the State of Florida
As Deputy Clerk
Date: By:
Name:
Title: Mayor/Chairperson
MONA0E COUNTY ATTORNEY'S OFFICE
R TRM IA ALES
T Jf�ntTT RJNEY
DATEr
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EXHIBIT A-REVISED
NEW SKETCH OF PREMISES
See attached on next page.
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Kevin Madok, CPA
ty Clerk of the Circuit Court& Comptroller Monroe Coun , Florida
DATE: May 17, 2023
TO: Alice Stcryou
Contract Moinfor
FROM: P'micla G. 11wic(k,*C.
SUBJECT: May 17"' 130CC MeetJng
Attached is ari electronic copy of'cacli ot'die following itenis For your handling:
C1 l" Amendnient to base Agreement willi NN'liarl'Manina SMI, 1,1,C, to reflect the
sale of the building whicli houses the Public Dcl'Cridcr's Maradion 01fice. NN'liari'Marils, Inc. sold
the building to NN'liart'SMI, 1,1,C onjuly 13, 2022. Tlils Amendment seeks approval to
acknowledge the sale ot'die real property and consent ol'NN'liai-I'Marina SMI, 1,1,C to take
possession ol'tlie property; amend the mine and address ol'tlic Lessor For rental payments and
notices; and update address for I&ssee for Notices in Article XIX of the 1eascAgrCciriclit.
I T5 I.`.10iiendinent for a two (2) year Commercial Lease renewal and annual rental
increase `vide Key Vaca Center, 1,1,C, for d ic Supervisor ol'Elections office at d ic I 00d i Street
Center building in Maratlion. ` 'lie new lease term commences oil, IIc 1, 2023, and terminates on
May 31, 2025, at a total monthly rental Ice of$1,872.90/niontli for the upcoming year, wid
$5,03 1.1 t/moi it]i for die second year wl i1cl i includes a 3.25)% CPl_j T increase for die base rent and
its share ol'tlic monthly CAM costs widi both leaving been increased by 3.25%, radier than under
the leans oFflic Lase. Supervisor of'Elections Binding pays this lease.
Sliould you have ally questions please feel free to contact ine at (305) 292-3550.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY
500 Whitehead Street 3117 Overseas Highway 88770 Overseas Highway
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070
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FIRST AMENDMENT TO LEASE AGREEMENT
17th THIS FIRST AMENDMENT TO LEASE AGREEMENT is made and entered into this
4 th day of ApfR, 2023, by and between WHARF MARINA SMI, LLC, a Foreign Limited
Liability Company, authorized to do business in the State of Florida, whose principal address is
17330 Preston Road, Suite 220A, Dallas, Texas 75252, parry of the first part, hereinafter referred
to as "Lessor", and BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA, a political subdivision of the State of Florida,whose address is 1100 Simonton Street,
Key West, Florida 33040,parry of the second part, hereinafter referred to as "Lessee".
WHEREAS, the initial Lessor, Wharf Marina, Inc., owned certain real property located at
4695 Overseas Highway, Marathon, Florida, hereinafter "Premises"; and
WHEREAS,the initial Lessor,Wharf Marina, Inc., and Lessee entered into a three(3)year
Lease Agreement(hereinafter"Original Agreement"), on the 161h day of September, 2020, for the
Premises hereinabove identified and as set forth on the Original Agreement as Exhibit"A"; and
WHEREAS, Wharf Marina, Inc. sold the real property, which is the subject of the herein
leased Premises, to Wharf Marina SMI, LLC, on or about July 13, 2022, with said Special
Warranty Deed recorded in the Official Records of Monroe County,Florida, in Book 3184 at Page
1951; and
WHEREAS, as part of that sale, Wharf Marina SMI, LLC, took possession of the real
property subject to any and all existing tenancies; and
WHEREAS, the parties hereto acknowledge the sale of the property and the consent of
Wharf Marina SMI, LLC,to take possession of the real property subject to the Original Lease; and
WHEREAS, the parties have found the Original Agreement to be mutually beneficial and
agree to amend the Original Agreement to reflect the current owner of the real property as Wharf
Marina SMI, LLC, amend the name and address of the Lessor in Articles 11, RENTALS, and XIX,
NOTICES,and correct the address for Notice to Lessee in Article XIX, of the Original Agreement;
and
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants set
forth below, the parties agree as follows:
1. The Original Agreement is now amended to reflect the current owner of the real
property as Wharf Marina SMI, LLC, of Dallas, Texas, a Foreign Limited Liability
Company, authorized to do business in Florida, whose address is 17330 Preston
1
1439
DocuSign Envelope ID:78887195-3CA5-41 F8-A7AC-499606791319C
Road, Suite 220A, Dallas, Texas 75252, and thereby the current owner and Lessor
of this property as of July 13, 2022.
2. The second paragraph of Article II, RENTALS, of the Original Agreement, is
amended to read as follows:
It RENTALS:
The rental shall be paid to the Lessor and mailed to Wharf Marina SMI,
LLC, at 17330 Preston Road, Suite 220A, Dallas, Texas 75252,prior to the
last day of the month.
All other provisions of Article 11 remain the same.
3. Article XIX.,NOTICES, of the Original Agreement,is amended to read as follows:
XIX. NOTICES:
All notices required to be served upon the Lessor shall be served by certified
mail, return receipt requested, postage prepaid, or by courier with proof of
delivery at Wharf Marina SMI, LLC, 17330 Preston Road, Suite 220A,
Dallas, Texas 75252, and all notices required to be served upon the Lessee
shall be served by certified mail, return receipt requested, postage prepaid,
or by courier with proof of delivery at the Monroe County Facilities
Maintenance Department, 123 Overseas Highway, Key West, Florida,
33040, and Monroe County Attorney; 1111 12'h Street, Suite 401, Key
West, Florida 33040. The place of giving Notice shall remain the same as
set forth herein until changed in writing in the manner provided in this
paragraph. Notice is deemed received by Contractor when hand delivered
by national courier with proof of delivery or by U.S. Mail upon verified
receipt or upon the date of refusal or non-acceptance of delivery.
4. Except as set forth in paragraphs one through three of this First Amendment to
Lease Agreement, in all other respects, the terms and conditions of the Original
Agreement dated September 16,2020,not inconsistent herewith shall remain in full
force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE TO FOLLOW]
2
1440
DocuSign Envelope ID:78887195-3CA5-41F8-A7AC-49960679B19C
IN WITNESS WHEREOF, each party hereto has caused this First Amendment to Lease
Agreement to be executed by its duly authorized representative on the day and year first written
above.
Signed, Sealed and Delivered LESSOR: WHARF MARINA SMI, LLC
in the presence of.
(—DOCUS%qned by:
By:_ V'� 3"'.
Witness �—DCCBC20C4AA34C8
Title: Chief Financial Officer
Print Name Thomas_N.�Ti Tipton,
Print Name
ate: Date: 04-06-2023
`Ti
Witness
C nl
-
:<
Print Name
23
LESSEE: BOARD OF COUNTY
COMMISSIONERS OF
A KEVI N MADOK, CLERK MONROE CO 'Y, FLORIDA
4
By: By:_._.___ .....................
................
As Deputy Clerk Mayor/Chairperson
Date:
~0011 COUNTY ATTORNEY'S OFFICE
PATRICIA EABLES
ASMIrmyf,
DATE: —ntT—Sj=
1441
COW
Kevin Madok, CPA
:.
p Clerk of the Circuit Court&Comptroller—Monroe County, Florida
DATE: September 18, 2020
TO: Ke,6n (,.Wilson, PE
Assistant County Administrator
Suzanne Rubio
Execu&c Administrator
FROM: Pamela C=. Hanco• .C.
SUBJECT: September 16' 13UCC Meeting
Attached is an electronic copy of the following iteni for your handling:
1111 Lease witli Wliarf Marina, Inc. for office space for the Public Defender in
Marathon effective October 1, 2020.The lease t.enn is for three (3) years at $72,000.00 per year.
Should you haze any questions please fccl free to contact me at (305) 292-3.550.
cc: County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PKIROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145 1442
LEASE AGREEMENT
This Lease Agreement entered into this 16th day of September 2020, by and
between WHARF MARINA, INC., a Florida Profit Corporation, whose principal address is 4681
Overseas Highway; Marathon, Florida 33050, parry of the first part, hereinafter called the
"Lessor", and the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA, a political subdivision of the State of Florida, whose address is 1100 Simonton Street,
Key West, Florida 33040,parry of the second part,hereinafter called the "Lessee",.
WITNESSETH:
That the Lessor, for and in consideration of the covenants and agreements hereinafter
mentioned to be kept and performed by the Lessee, has demised and leased to the Lessee, for the
term and under the conditions hereinafter set out, those certain premises in Marathon, County of
Monroe, Florida, described as follows:
I. LEASE LOCATION:
The Lessor leases to Lessee the property situated at and commonly known as 4695 Overseas
Highway, Marathon, Florida 33050 ("Premises"), which shall constitute an aggregate area of 3,600
square feet of net rentable space; including property boundaries of 122' x 200', as further
described in the survey conducted by Phillips & Trice Surveying, Inc., as shown on Exhibit A,
attached hereto and incorporated as part of this lease document.
IL RENTALS:
The Lessor hereby leases to the Lessee and the Lessee hereby leases from the Lessor the above-
described Premises for the term set out in this Lease. Lessee hereby agrees to pay the Lessor the
sum of Seventy-two thousand and 00/100 ($72,000.00) Dollars annually. The lease amount agreed
to herein (Six thousand and 00/100 Dollars per month) will be increased annually by three percent
(3%), beginning with the first day of October, 2021, and annually thereafter. Rent shall be due
and payable on or before the last day of each month, in arrears, upon receipt of a proper invoice,
acceptable to the Clerk of Court, pursuant to the Florida Local Government Prompt Payment Act,
Fla. Stat. Section 218.70. Acceptability to the Clerk is based on generally accepted accounting
principles and such laws,rules, and regulations as may govern the Clerk's disbursal of funds.
The rental shall be paid to the Lessor and mailed to 4681 Wharf Marina, Inc., 4681 Overseas
Highway; Marathon, FL 33050-2322,prior to the last day of the month.
III. TERM:
To have and to hold the above-described Premises for a term of three (3) years commencing on
October 1, 2020,up to and including September 30, 2023.
IV. RENEWAL
This agreement may be renewed, at the option of the Lessee, for one (1) additional three (3) year
period. This option shall be executed only upon approval of the Board of County Commissioners.
V. AIR CONDITIONING AND JANITORIAL SERVICES
Lease 4681 Overseas Hwy 1
Marathon,FL 33050-2322
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(1) The Lessor agrees to furnish to the Lessee air conditioning equipment, and shall ensure
that same is operational and functional at the commencement of this Lease. Thereafter,
the Lessor shall maintain air conditioning equipment in satisfactory operating condition at
all times for the leased premises during the term of the Lease at the expense of the Lessor.
Lessee shall be responsible for minor repairs, however, not exceeding One Thousand and
00/100 ($1,000.00) Dollars. Thereafter, the Lessor shall bear one hundred percent(100%)
of any cost of repair and/or replacement of the air conditioning equipment in excess of
One Thousand and 00100 ($1,000.00) Dollars. By mutual agreement. Lessee may contract
for major repairs on a reimbursement basis for the costs of such repairs for amounts
exceeding One Thousand and 00/100 ($1,000.00) Dollars.
(2) The Lessee shall provide janitorial services and all necessary janitorial supplies for the
leased premises during the term of the Lease at the expense of the Lessee.
VI. MAINTENANCE AND REPAIRS:
(1) The Lessee shall provide for interior maintenance and repairs in accordance with generally
accepted good practices, including repainting, the replacement of worn or damaged floor
covering and repairs or replacement of interior equipment as may be necessary due to
normal usage. The Lessee shall, during the term of this Lease, keep the interior of the
demised Premises in as good a state of repair as it is at the time of the commencement of
this Lease,reasonable wear and tear, and unavoidable casualties excepted.
(2) The Lessor shall maintain and keep in repair the exterior of the demised Premises during
the term of this Lease, and shall be responsible for the replacement of all windows broken
or damaged in the demised Premises, except such breakage or damage caused to the
exterior of the demised Premises by the Lessee, its officers, agents, or employees.
(3) The Lessor shall maintain the exterior of the demised Premises so as to conform to all
applicable health and safety laws, ordinances, and codes which are presently in effect and
which may subsequently be enacted during the term of this Lease and any renewal periods.
(4) The Lessor shall provide appropriate entranceways to the structure to accommodate space
allocation for government entities occupying the space, inclusive of ingress and egress, at
the expense of the Lessor.
VII. UTILITIES:
The Lessee will promptly pay all solid waste,power, and electric light rates or charges which may
become payable during the term of this Lease for solid waste disposal,power, and electricity used
by the Lessee on the Premises, or other such similar utilities, as needed by Lessee.
VIII. ALTERATIONS:
The Lessee shall have the right to make any alterations to the demised Premises during the term of
this Lease upon first having obtained the written consent thereto of the Lessor. The Lessor shall
not capriciously withhold the consent to any such alterations.
Lease 4681 Overseas Hwy 2
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IX. FIRE AND OTHER HAZARDS:
(1) In the event that the demised Premises, or the major part thereof are destroyed by fire,
lightening, storm, or other casualty, the Lessor at its option may forthwith repair the
damage to such demised Premises at its own cost and expense. The rental thereon shall
cease until the completion of such repairs and the Lessor will immediately refund the pro
rata part of any rentals paid in advance by the Lessee prior to such destruction. Should the
Premises be only partly destroyed, so that the major part thereof is usable by the Lessee,
then the rental shall abate to the extent that the injured or damaged part bears to the whole
of such premises and such injury or damage shall be restored by the Lessor as speedily as
is practicable and upon the completion of such repairs, the full rental shall commence and
the Lease shall then continue for the balance of the term.
(2) The Lessor shall provide for fire protection during the term of this Lease in accordance
with the fire safety standards of the State and/or Monroe County Fire Marshal. The Lessor
shall be responsible for maintenance and repair of all fire protection equipment necessary
to conform to the requirements of the State and/or County Fire Marshal. The Lessor
agrees that the demised premises shall be available for inspection by the State and/or
County Fire Marshal, prior to occupancy by the Lessee, and at any reasonable time
thereafter.
X. EXPIRATION OF TERM:
At the expiration of the term, the Lessee will peaceably yield up to the Lessor the demised
Premises in good and tenantable repair. It is understood and agreed between the parties that the
Lessee shall have the right to remove from the Premises all personal property of the Lessee and all
fixtures, machinery, equipment, appurtenances, and appliances placed or installed on the Premises
by it, provided the Lessee restores the Premises to as good a state of repair as it was prior to the
removal.
XI. SUBLETTING AND ASSIGNMENT:
The Lessee upon the obtaining of the written consent of the Lessor, which written consent shall
not capriciously be withheld, shall have the right to sublet all or any part of the demised Premises,
or to assign all or any part of the demised Premises.
XII. NOT CONSENT TO SUE:
The provisions, terms, or conditions of this Lease shall not be construed as a consent of Monroe
County to be sued because of said leasehold.
XIII. WAIVER OF DEFAULTS:
The waiver by the Lessor of any breach of this Lease by the Lessee shall not be construed as a
waiver of any subsequent breach of any duty or covenant imposed by this Lease.
Lease 4681 Overseas Hwy 3
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1445
XIV. RIGHT OF LESSOR TO INSPECT:
The Lessor, at all reasonable times during regular business hours, may enter into and upon the
demised Premises for the purpose of viewing the same and for the purpose of making any such
repairs as they are required to make under the terms of this Lease. Repairs shall be limited to non-
business hours unless an emergency situation exists.
XV. BREACH OF COVENANT:
If the Lessee shall neglect or fail to perform or observe any covenant herein contained, which on
the Lessee's part is to be performed and such default shall continue for a period of thirty (30) days
after receipt of written notice thereof from the Lessor to the Lessee, then the Lessor lawfully may,
immediately or any time thereafter, and without further notice or demand, enter into and upon the
demised Premises, or any part thereof and repossess the same as of their former estate and expel
the Lessee and remove its effects forcefully, if necessary, without being taken or deemed to be
guilty of any manner of trespass and thereupon this demise shall terminate, but without prejudice
to any remedy which might otherwise be used by the Lessor for arrears of rent or for any breach of
the Lessee's covenants herein contained.
XVI. ACKNOWLEDGEMENT OR ASSIGNMENT:
The Lessee, upon the request of the Lessor, shall execute such acknowledgement or
acknowledgments, or any assignment, or assignments, of rentals and profits made by the Lessor to
any third person, firm or corporation, provided that the Lessor will not make such request unless
required to do so by the Mortgage under a mortgage or mortgages, executed by the Lessor.
XVII. AVAILABILITY OF FUNDS:
Monroe County's performance and obligation to pay under this contract, is contingent upon
an annual appropriation by the Board of County Commissioners and the approval of the
Board members at the time of the Lease initiation and its duration.
XVIII. USE OF PREMISES:
The Lessee will not make or suffer any unlawful, improper, or offensive use of the Premises or any
use of occupancy thereof contrary to the Laws of the State of Florida, or to such Ordinances of
Monroe County, or the City of Marathon, now in effect or hereinafter adopted, as may be
applicable to the Lessee.
XIX. NOTICES:
All notices required to be served upon the Lessor shall be served by certified mail, return receipt
requested, postage prepaid or by courier with proof of delivery at Wharf Marina, Inc.: c/o Mr
James Figuerado; 4681 Overseas Highway, Marathon, Florida 33050-2322, and all notices
required to be served upon the Lessee shall be served by certified mail, return receipt requested,
postage prepaid or by courier with proof of delivery at the Monroe County Facilities Maintenance
Department, 3583 S. Roosevelt Boulevard, Key West, Florida, 33040 and Monroe County
Attorney; 1111 12' Street, Suite 401; Key West, FL 33040. The place of giving Notice shall
remain the same as set forth herein until changed in writing in the manner provided in this
paragraph.
Lease 4681 Overseas Hwy 4
Marathon,FL 33050-2322
1446
XX. RADON GAS NOTIFICATION:
Radon is a naturally occurring 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. Additional information
regarding radon and radon testing may be obtained from your county public health unit.
XXI. LEASE TERMINATION:
This Lease may be terminated by the Lessee upon written six(6) months' notice to the Lessor that
the Lessee has obtained adequate office space in a governmental building.
XXII. ETHICS CLAUSE:
Lessor warrants that it has not employed, retained or otherwise had act on its behalf any former
County officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or
any County officer or employee in violation of Section 3 of Ordinance No. 020-1990. For breach
or violation of this provision, the Lessee may, in its discretion, terminate this contact without
liability and may also, in 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 County officer or employee.
XXIII. AMERICAN WITH DISABILITIES ACT:
The Lessor herein expressly agrees to maintain the subject Premises in full compliance with the
American with Disabilities Act of 1990 ("ADA"), as amended. Further, the Lessor shall be liable
for any cost or expenditure associated with said compliance. The Lessor shall be fully responsible
to restore all rest room facilities to meet ADA requirements at the expense of the Lessor, prior to
occupancy.
XXIV. PUBLIC ENTITY CRIME:
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 goods or services to a public
entity, may not submit a bid, proposal, or reply on a contract to provide any goods or services to a
public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the
construction or repair of a public building or public work; may not submit bids, proposals, or
replies 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 transact business with any public entity in excess of the threshold amount provided in Section
287.017, F.S. for CATEGORY TWO for a period of thirty-six (36) months from the date of being
placed on the convicted vendor list.
(CATEGORY TWO: $35,000.00)
XXV. ATTORNEY'S FEES, AND COSTS.
If any action at law or in equity shall be brought under this Lease, or for or on account of any
breach of, or to enforce or interpret any of the covenants, terms, or conditions of this Lease, or for
the recovery of possession of the demised Premises, the prevailing parry shall be entitled to
Lease 4681 Overseas Hwy 5
Marathon,FL 33050-2322
1447
recover from the other parry, reasonable attorney's fees, court costs, investigative, and out-of-
pocket expenses, and shall include attorney's fees, court costs, investigative, and out-of-pocket
expenses in appellate proceedings, the amount of which shall be fixed by the court and shall be
made a part of any judgment or decree rendered.
XXVI. GOVERNING LAW, VENUE, AND INTERPRETATION:
This Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or interpretation
of this Agreement, the Lessee and Lessor agree that venue will lie in the appropriate court or
before the appropriate administrative body in Monroe County, Florida. The Lessor and Lessee
agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or
between any of them the issue shall be submitted to mediation prior to the institution of any other
administrative or legal proceeding.
XXVII. INDEMNIFICATION/ HOLD HARMLESS:
The Lessor covenants and agrees to defend, indemnify, and hold harmless Lessee, and its elected
and appointed officers, officials, agents, servants, and employees from any and all claims,
demands, causes of action for bodily injury (including death), personal injury, and property
damage (including property owned by Monroe County) and any other losses, damages, costs,
penalties, and expenses (including attorney's fees) which arise out of, in connection with, or by
reason of services provided by the Lessor occasioned by the negligence, errors, or other wrongful
act of omission of the Lessor or its employees, or agents.
Subject to Section 768.28, Florida Statutes, Lessee shall indemnify and hold harmless Lessor
against and from any and all claims arising from Lessee's use of the Premises for the conduct of its
business or from any activity,work, or other thing done,permitted, or suffered by the Lessee in the
building.
XXVIII. NONDISCRIMINATION:
Lessor and Lessee agree that there will be no discrimination against any person, and it is expressly
understood that upon a determination by a court of competent jurisdiction that discrimination has
occurred, this Lease automatically terminates without any further action on the part of any parry,
effective the date of the court order. Lessor and Lessee agree to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These
include but are not limited to: 1) Title VII of the Civil Rights Act of 1964 (PL 88-352) which
prohibits discrimination in employment on the basis of race, color, religion, sex, and national
origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and
1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the
basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107)
which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act
of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of
1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or
alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and
Lease 4681 Overseas Hwy 6
Marathon,FL 33050-2322
1448
290ee-3), as amended,relating to confidentiality of alcohol and drug abuse patient records; 8) Title
VIII of the Civil Rights Act of 1968 (42 USC s.3601 et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities
Act of 1990 (42 USC s. 12101 Note), as may be amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Monroe County Code, Chapter 14, Article II,
which prohibits discrimination on the basis of race, color, sex,religion, disability,national origin,
ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other
nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or
the subject matter of, this Lease.
XXIX. NON-RELIANCE BY NON-PARTIES:
No person or entity shall be entitled to rely upon the terms, or any of them, of this Lease to enforce
or attempt to enforce any third-party claim or entitlement to or benefit of any service or program
contemplated hereunder, and the Lessor and Lessee agree that neither the Lessor nor the Lessee or
any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise
indicate that any particular individual or group of individuals, entity or entities, have entitlements
or benefits under this Lease separate and apart, inferior to, or superior to the community in general
or for the purposes contemplated in this Lease.
XXX. NO PERSONAL LIABILITY:
No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any
member, officer, agent, or employee of Monroe County in his or her individual capacity, and no
member, officer, agent, or employee of Monroe County shall be liable personally on this Lease or
be subject to any personal liability or accountability by reason of the execution of this Lease.
XXXI. EXECUTION IN COUNTERPARTS:
This Lease may be executed in any number of counterparts, each of which shall be regarded as an
original, all of which taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Lease by signing any such counterpart.
XXXII. SECTION HEADINGS:
Section headings have been inserted in this Lease as a matter of convenience of reference only,
and it is agreed that such section headings are not a part of this Lease and will not be used in the
interpretation of any provision of this Lease.
XXXIII. MUTUAL REVIEW:
This Lease has been carefully reviewed by Lessor and Lessee; therefore, this Lease is not to be
construed against either party on the basis of authorship.
XXXIV. PUBLIC ACCESS:
The Lessor and Lessee shall allow and permit reasonable access to, and inspection of, all
documents, papers, letters or other materials in its possession or under its control subject to the
provisions of Chapter 119, Florida Statutes, and made or received by the Lessor and Lessee in
conjunction with this Lease; and the Lessee shall have the right to unilaterally cancel this Lease
upon violation of this provision by Lessor.
Lease 4681 Overseas Hwy 7
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1449
XXXV. COVENANT OF NO INTEREST:
Lessor and Lessee covenant that neither presently has any interest, and shall not acquire any
interest, which would conflict in any manner or degree with its performance under this Lease, and
that the only interest of each is to perform and receive benefits as recited in this Lease.
XXXVI. COOPERATION:
In the event any administrative or legal proceeding is instituted against either parry relating to the
formation, execution,performance, or breach of this Lease, Lessor and Lessee agree to participate,
to the extent required by the other parry, in all proceedings, hearings, processes, meetings, and
other activities related to the substance of this Lease or provision of the services under this Lease.
Lessor and Lessee specifically agree that no parry to this Lease shall be required to enter into any
arbitration proceedings related to this Lease.
XXXVII. BINDING EFFECT:
The terms, covenants, conditions, and provisions of this Lease shall bind and inure to the benefit
of the Lessor and Lessee and their respective legal representatives, successors, and assigns.
XXXVIII. AUTHORITY:
Each parry represents and warrants to the other that the execution, delivery and performance of
this Lease have been duly authorized by all necessary County and corporate action, as required by
law.
XXXIX. ADJUDICATION OF DISPUTES OR DISAGREEMENTS:
Lessor and Lessee agree that all disputes and disagreements shall be attempted to be resolved by
meet and confer sessions between representatives of each of the parties. If the issue or issues are
still not resolved to the satisfaction of the parties, then any parry shall have the right to seek such
relief or remedy as may be provided by this Lease or by Florida law.
XL. CODE OF ETHICS:
Lessee agrees that officers and employees of the Lessee recognize and will be required to comply
with the standards of conduct for public officers and employees as delineated in Section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business
with one's agency; unauthorized compensation; misuse of public position, conflicting employment
or contractual relationship; and disclosure or use of certain information.
XLI. SEVERABILITY:
If any term, covenant, condition, or provision of this Lease (or the application thereof to any
circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions, and provisions of this Lease,
shall not be affected thereby; and each remaining term, covenant, condition, and provision of this
Lease shall be valid and shall be enforceable to the fullest extent permitted by law unless the
Lease 4681 Overseas Hwy 8
Marathon,FL 33050-2322
1450
enforcement of the remaining terms, covenants, conditions, and provisions of this Lease would
prevent the accomplishment of the original intent of this Lease. The Lessor and Lessee agree to
reform the Lease to replace any stricken provision with a valid provision that comes as close as
possible to the intent of the stricken provision.
XLII. ENTIRE AGUEMENT:
This writing embodies the entire agreement and understanding between the parties hereto, and
there are no other agreements and understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby. Any amendment to this Lease
shall be in writing, approved by the Board of County Commissioners, and signed by both parties
before it becomes effective.
XXLIll. _DEFINITION OF TERMS:
(1) The terms "lease". "lease agreement", or "agreement" shall be inclusive of each other and
shall also include any renewals. extensions or modifications of this Lease.
(2) The term "Lessor" and "Lessee" shall include the successors and assigns for the parties
hereto.
(3) The singular shall include the plural and the plural shall include the singular whenever the
context so requires or permits.
VIM ADDITIONAL CONDITIONS:
No additional covenants or conditions form a part of this Lease.
IN WITNESS WHEREOF', the parties hereto have hereunto executed this instrument for the
purpose herein expressed,the day and year first above written.
Signed, Sealed and Delivered I_,ESSOR: WHARF MARINA. INC.
in t press ce o
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Lease 4681 Overseas Hwy 9
Marathon.FL 33050-2322
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e
t
(SEAL) LESSEE:
ATTEST: KEVIN MADOK,CLERK BOARD OF CO TYCOMMISSIONERS
OF MONROE C T , LORIDA
By: \(a -r Ya By:
As Deputy Clerk a r
MONFIOE couNw Awosiwys OFFICE
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Lease 4691 Overseas Hwy 10
Marathon,FL 33050-2322
1452
CHAPLIN REAL ESTATE TEL:305-743-3194 May 29 98 7:02 No.001 P.01
PHILLIPS & TRICE SURVEYING, INC. IA(,M rotor% F•i
Proln0onal Lend Surveyors y".I--•
1204 Simonton Street )of M I Ru l.r i s
Key West.Florida))040
(305)294.4747
U.S. I•11 G 1-!WAY O --0 uES
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SPECIFIC PURPOSE SURVEY TO CREATE A NEW PARCEL; A 122 foot strip of land in
a part of Government Lots I and 2, Section 107 Township 66 South, Range 32
East, being on Key Vaea, Monroe County, Florida, and being more particularly
described by metes and bounds as followss BEGIN at the intersection of the
Northwest corner of "MARAMEADE SUBDIVISION" as recorded in Plat Book 2, Page
185 of the Public Records Of Monroe County, Florida, and the Southeasterly
right of way line of U.S. Highway No. 1, thence South 740 20' Hest along the
Southeasterly right of way line of V.S. Highway No. 1, 122 feet to a point;
thence South 15. 40' East, 200 feet to a points thence North 74. 20' East,
122 feet to a points thence North 15. 40' west, 200 feet hark to the Point of
Beginning.
SURVEY FORS ISLAND MARINA, INC.
I HEREBY CERTIFY that the Specific Purpose Survey delineated hereon meets or
exceeds the minimum technical standards as set forth by the Florida Board of
Land Surveyors, pursuant to Section 472.021 of the Florida Statutes, and that
there are no encroachments, above ground, other than those shown hereon.
71I15.511RCFVNwar PIIILLIPS 6 TRICE SURVEYING, INC.
VA1.111 11NIN'"@AINfNICI:II
t�'i'1'll A RAISEDCI:AI. '
April 17, 1987
Key West, Florida os ce
Pt: ssional Surveyor-
Pin
da Reg. Cert. 12110
"Exhibit A"
_. . 1453
ESTOPPEL CERTIFICATE
Suntex Marina Investors LLC, and its successors, assigns, and designees
Attn: Bryan Redmond
17330 Preston Road, Suite 220A
Dallas, Texas 75252
RE: 4695 Overseas Highway, Marathon, Florida 33050
To Whom it may concern:
Reference is made to that certain LEASE dated as of September 16, 2020 (the "Lease"),
between Wharf Marina, Inc. as landlord ("Landlord"), and the undersigned Board of County
Commissioners of Monroe County, Florida, a political subdivision of the State of Florida as
tenant("Tenant"), for the demised premises at the captioned address more particularly described
in the Lease (the "Premises"). Tenant hereby represents that the following statements are true and
correct as of the date hereof:
1. Attached hereto as Schedule 1 is a true, correct, and complete copy of the Lease.
2. The Lease is in full force and effect and has not been amended, modified,
supplemented, or superseded. There are no understandings, contracts, agreement, or
commitments of any kind whatsoever with respect to the Premises, except as expressly provided
in the Lease.
3. The term of the Lease commenced on October 1, 2020, and currently expires on
September 30, 2023. Tenant has the right, under Section IV, to extend the term of the Lease term
for an additional Three (3)year period.
4. The base rent presently being charged is $6,180.00 per month. Tenant is current in
its rental obligation under the Lease. No rental, charges, additional rent, or other obligations,
other than for the current month, have been paid in advance, except for the prepaid rent stated
below.
5. Tenant has paid to Landlord no security deposit nor prepaid rent.
6. Landlord is not in any respect in default in the performance of the terms and
provisions of the Lease. There is no defense, offset, lien, claim or counterclaim by or in favor of
Tenant against Landlord under the Lease or against the obligations of Tenant under the Lease.
7. Tenant has no right of first offer or right of first refusal.
8. Tenant is not in any respect in default in the performance of the terms and
provisions of the Lease.
9. Tenant has not assigned the Lease nor sublet any part of the Premises.
1
1454
10. Tenant has the right to terminate the Lease, under Section XXI, upon six months'
prior written notice that the Tenant has obtained adequate office space in a governmental
building.
11. Tenant, as of the date below, has not exercised the right to terminate the Lease
under Section XXI.
Board of County Commissioners of
Monroe County, Florida
` , ...'
By: Date: July 12, 2022
O couNTY AmnNEY
Xll�
"79
P D O1 A
0 � ATTORNEY
C
Data 7/12/22
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Doc#2383966 Bk#3184 Pg#1951 Recorded 7/18/2022 at 12:46 PM Pages 6
Filed and Recorded in Official Records of MONROE COUNTY KEVIN MADOK
REC: $52.50 Deed Doc Stamp$63,700.00
PREPARED BY:
Gregory S.Oropeza,Esq.
Oropeza,Stones&Cardenas,PLLC
221 Simonton Street
Key West,Florida 33040
Parcel ID No 00103090-000100 and 00324780-000000
Consideration$9,100,000.00
[Space Above This Line for Recording Data]
SPECIAL WARRANTY DEED
THIS;SPECIAL WARRANTY DEED is made this 13a' day of July, 2022, by Wharf
Marina,Inc., a Florida corporation,whose mailing address is 489 Madison Court,Fort Myers
Beach,FL 3393-1 ("Grantor"),and delivered to Wharf SMI,LLC,a Delaware limited liability
company whose mailing address is 17330 Preston Road; Suite 220A, Dallas, TX 75252
("Grantee"). (Wherever used herein,the terms"Grantor"and"Grantee"include all the parties to
this instrument and the heirs, legal representatives and assigns of individuals and the successors.
and assigns of corporations and other entities.)
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and no/100 Dollars($10.09)and
other good and valuable consideration,the receipt of which is hereby acknowledged,does hereby
grant,bargain,sell,remise,transfer and convey unto Grantee forever,the following described land
in Monroe County,Florida(the"Property"):
See"Exhibit A"attached.
TOGETHER WITH all the tenements, hereditaments, and appurtenances, with every
privilege, right, title, interest and estate, reversion, remainder and easement thereto belonging or
in anywise appertaining.
TO HAVE AND TO HOLD the same in fee simple forever.
SUBJECT TO taxes and assessments for the year 2022 and subsequent years which are not
yet due and payable, zoning and other governmental land use restrictions and limitations, and all
matters listed on attached"Exhibit B (the"Permitted Encumbrances");provided,however,the
foregoing statement is not intended to and shall not be construed to reimpose any such matters.
Grantor hereby covenants with Grantee that, except for those matters described above, at
the time of the delivery of this Deed, the Property was free from all encumbrances made by
Grantor,and that Grantor will warrant and defend the title to the Property against the lawful claims
and demands of all persons whomsoever lawfully claiming by,through or under Grantor herein,
but against none other.
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IN WITNESS WHEREOF,Grantor has executed this deed on the day and year first above
written.
WITNESSES:
Wharf Marina,Inc.,a Florida corporation
Print Name: &re q0/% 0� ?'�' y: James Figuerado, r.
Its: President
Pr Na e: V\r—'A 4L -a
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me by means of 9-pliysical presence
or❑ online notarization this I— day of July,2022,by James Figuerado Jr.,President of Wharf
Marina,Inc., a Florida corporation,on behalf of said company. He(personally known to me
or()has produced a driver's license as identification.
(AFFIX NOTARIAL SEAL) Notary Public—State of Florida
Print Name:
My Commission Expiration
and Commission Number: Notary Pubno state of Florida
AM Gregory s. oropeza
III! MyHN 27a8�36 on
Exp. VV2026
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Doe.#2383966 Page Number: 3 of 6
Exhibit"A"—Legal Description
Lots 1, 2, 3, 4 and 5,Block D and adjacent part of Vacated Redora Road, of AMENDED PLAT
OF MARAMEADE SUBDIVISION, according to the Plat thereof recorded in Plat Book 3,Page
185,of the Public Records of Monroe County,Florida;
And
A 122 foot strip of land and water in a part of Government Lots 1 and 2, Section 10,Township 66
South,Range 32 East, being on Key Vaca, Monroe County, Florida, and being more particularly
described by metes and bounds as follows:
COMMENCING at the intersection of the Northwest corner of"MARAMEADE SUBDIVISION"
as recorded in Plat Book 3, Page 185 of the Public Records of Monroe County, Florida, and the
Southeasterly right-of-way line of U.S.Highway No. 1,bear South as a POINT OF BEGINNING;
from said bear South 74 Degrees 20 Minutes West along the southeasterly right-of-way line of
U.S.Highway No. 1, 122 feet to a point;thence bear South 15 Degrees 40 Minutes East 960 feet,
more or less, out into Book Key Harbor; thence bear Northeasterly to a point that is 122 feet
measured at right angles to the preceding course and is also bearing South 15 Degrees 40 Minutes
East from the Point of Beginning; thence bear North 15 Degrees 40 Minutes West 676.33 feet,
more or less back to the POINT OF BEGINNING.The above described property is also described
as follows:
The Easterly 100 feet of the Mortgage premises described in a mortgage dated September 26, 1972
which was recorded in the Official Records of Monroe County,Florida at Book 519 Page 772,by
reference and made a part hereof,being a 100 foot frontage on U.S. Highway No. 1,and extended
Southerly at right angles to the North boundary of said parcel and parallel to the Easterly boundary
of said parcel to the south of said parcel.
And also, a 122 foot strip of land and water in a part of Government Lots 1 and 2, Section 10,
Township 66 South,Range 32 East,being on Key Vaca,Monroe County,Florida.
And being more particularly described by metes and bounds as follows:
COMMENCING at the intersection of the Northwest corner of"MARAMEADE SUBDIVISIONS
as recorded in Plat Book 3, Page 185 of the Public Records of Monroe County, Florida, and the
Southeasterly right-of-way line of U. S.Highway No. 1,bear South as a POINT OF BEGINNING;
from said point bear South 74 Degrees 20 Minutes West along the southeasterly right-of-way line
of U.S. Highway No. 1 for a distance of 122 feet to a point; thence bear South 15 Degrees 40
Minutes East for a distance of 960 feet, more or less, out into Book Key Harbor; thence bear
Northeasterly to a point that is 122 feet measured at right angles to the preceding course and which
is also bearing South 15 Degrees 40 Minutes East from the POINT OF BEGINNING;thence bear
North 15 Degrees 40 Minutes West for a distance of 850 feet,more or less back to the POINT OF
BEGINNING.
AND
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Lot 6,Block D of AMENDED PLAT OF MARAMEADE SUBDIVISION, according to the Plat
thereof recorded in Plat Book 3,Page 185,of the Public Records of Monroe County,Florida.
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Exhibit"B"—Permitted Encumbrances
1. Taxes and assessments for the year 2022 and subsequent years, which are not yet due
and payable.
2. Any claim that any portion of the insured land is sovereign lands of the State of Florida,
including submerged, filled or artificially exposed lands accreted to such land.
(excluding Lots 2-6, Block D of AMENDED PLAT OF MARAMEADE HARBOUR PLAT BOOK
2, PAGE 185 and Parcel 2)
3. Restrictions, covenants, conditions, easements and other matters as contained on the
Plat of AMENDED PLAT OF MARAMEADE SUBDIVISION, recorded in Plat Book 3, Page
185, of the Public Records of Monroe County, Florida.
4. Grant of Easement recorded in Official Records Book 116, Page 562.
5. Reservations in favor of the State of Florida, as set forth in the deed from the Trustees
of the Internal Improvement Fund of the State of Florida recorded March 13, 1953,
under Deed Number Deed No. 20309, and corrected in October 8, 1953, under Deed
Number 20309 A; however, the right of entry and exploration associated with the oil and
mineral reservation has been released pursuant to Sec. 270.11, F.S.
6. State Law under Chapter 76-190 and Chapter 22F-8.02 of the Florida Administrative
Code for Land Planning for the Florida Keys Area of Critical State Concern, recorded in
Official Records Book 668, Page 43, Public Records of Monroe County, Florida.
7. House Bill No. 634, Chapter 70-231, an act relating to the Bureau of Beaches, Shores
and Coastal Construction, amending Chapter 161, Florida Statutes by adding Section
161.052; providing a setback line for coastal construction and excavation; providing for
the granting of variance by the Department of Natural Resources, providing penalties,
and providing an effective date.
8. Grant of Easement for benefit of contiguous property (Lot 4, Block E) recorded in Official
Records Book 1281, Page 2449, as affected by that Easement For Ingress and Egress
recorded in Official Records Book 2834, Page 990.
9. Easement For Ingress and Egress recorded in Official Records Book 2834, Page 990, as
affected by that Final Judgment in Case No. 14-CA-179-M recorded in Official Records
Book 2835, Page 1735.
10.Unity of Title recorded in Official Records Book 2845, Page 2003.
11.Rights of the United States of America and/or the State of Florida to any portion of said
land which has been created by artificial means or has accreted to any such portion as
so created.
12.Those portions of the property herein described being artificially filled in land in what
was formerly navigable waters, are subject to the right of the United States Government
arising by reason of the United States Government control over navigable waters in the
interest of navigation and commerce.
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13.The rights, if any, of the public to use as a public beach or recreation area any part of
the land lying or formerly lying between the body of water abutting the subject property
and the natural line of vegetation, bluff, extreme high-water line or other apparent
boundary lines separating the publicly used area from the.upland private area, as it may
have existed prior to the construction, if any, of sea wall or bulkhead thereon.
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