2nd Amendment 09/20/2023 GVS COURTq°
o: A Kevin Madok, CPA
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�o ........ � Clerk of the Circuit Court& Comptroller Monroe County, Florida
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DATE: October 3, 2023
TO: Kevin Wilson
Assistant County Administrator
William DeSantis, Director
Facilities Maintenance
Chrissy Collins
Executive Administrator
Alice Steryou
Contract Monitor
FROM: Liz Yongue, Deputy Clerk
SUBJECT: September 20, 2023 BOCC Meeting
The following items have been executed and added to the record:
C23 5th Amendment to Agreement with Air Mechanical & Service Corp. for Chiller
Maintenance and Service in Monroe County to add and/or update a contract provision to allow
for the option of Equipment Replacement and Installation by seeking a proposal only from the
Contractor in accordance with the current Monroe County BOCC Purchasing Policy. Funding is
Ad Valorem.
C28 2nd 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.
Should you have any questions please feel free to contact me 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
DocuSign Envelope ID:COC86654-C81 D-4414-13F24-C40133413FF57
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]
DocuSign Envelope ID:C0086654-C81 D-4414-BF24-C40B3413FF57
Lessor and Lessee have executed and entered into this Second Amendment to Lease as of the
Effective Date.
LESSOR:
rGAlDO&rO6lo3...
WHARF SMI,LLC,
sam shavers a Delaware limited liability company
P C : :1
; 1-DocuSigned by:
6G� vt,aUrla,S—Fis(.t,r '3_�-44C14OF... By.'-BA1 B38EBA563492...
Kimberly Kearns-Fisher Bryan Redmond
Print Name: Name:
Title:
President
LESSEE:
ATTEST: KEVIN MADOK,CLERK BOARD OF COUNTY COMMISSIONERS OF
�, '^ MONROE COUNTY, FLORIDA,
By: &1✓LOVVir a political sub.' .ision of the State of Florida
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As Deputy Clerk �. L� /;
(..,„..........),......
Date: ISO I Z®2 3 -",,;,,I, '3By:
• .Ir _ Name: CYal9 ttaCS
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,ce'4f ` o° Title: Mayor/Chairperson Chairperson
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DocuSign Envelope ID:COC86654-C81 D-4414-BF24-C4OB3413FF57
EXHIBIT A-REVISED
NEW SKETCH OF PREMISES
See attached on next page.
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