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Resolution 189-1988 Monroe County Commission RESOLUTION NO. 189 -1988 A RESOLUTION OF THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZ- ING THE MAYOR/CHAIRMAN OF THE BOARD TO EXECUTE A LEASE AGREEMENT BY AND BETWEEN K MART CORPORATION AND MONROE COUNTY CONCERNING THE KEY LARGO BRANCH PUBLIC LIBRARY. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that the Mayor/Chairman of the Board is hereby authorized to execute a Lease Agreement by and between K Mart Corporation and Monroe County, a copy of same being attached hereto, concerning the Key Largo Branch Public Library. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 3rd day of May, A.D. 1988. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA B~~~Zd/Jf/~ MAYOR PRO TEI"i (Seal) Attest:DANNY L. KOLHAGE, Clerk ~",j~.uf-.--/ [)G er APPROI/ED AS TO FO.'?!!/! Ay6}F. 1I,t S Ji-nCft:f"Cy' "l/ I ( , A tt<n.71''f''~:f'' {! tJ:~ri(;e ,A , " '\ LEASE AGREEMENT MONROE COUNTY PUBLIC LIBRARY KEY LARGO BRANCH THIS LEASE made and entered into as of this 3rd day of May, 1988 between K MART CORPORATION, a Michigan corporation, having its principal office at 3100 West Big Beaver Road, Troy, Michigan (herein referred to as "Landlord"), and MONROE COUNTY, a municipal corporation, having offices at Public Service Building, Wing II Stock Island, Key West, Florida 33040 (herein referred to as "Tenant"). WITNESSETH: That in consideration of the rents, covenants and condi- tions herein set forth, Landlord and Tenant do hereby covenant, promise and agree as follows: 1. Demised Premises. Landlord does demise unto Tenant and Tenant does take from Landlord for the lease term herein provided the building and site improvements to be constructed by Landlord on the land described in Exhibit A, attached, hereto and made a part hereof, and situated at mile marker 101.5 in Key Largo, Monroe County, Florida and a non-exclusive ease- ment and right to use all public and common facilities from time to time erected or serving a shopping center to be constructed by Landlord upon the property described in Exhibit A-1, also attached hereto and made a part hereof, and intended for common use, including, but not limited to, all entrances, exits, driveways, parking areas, walks, service drives and all utilities servicing said property. The building shall be in the approxi- mate location and of the approximate dimensions depicted on Exhibit B, attached hereto and made a part hereof. The building and site improvements, and land together with all licenses, rights, privileges and easements, appurtenant thereto, shall be herein collectively referred to as the "demised premises". The real prop- erty described in Exhibit A-1 hereto is sometimes herein referred to as the "shopping center". 2. ~. The initial term of this Lease shall commence upon the "date of occupancy by Tenant", as that term is hereinafter defined, and shall terminate upon such date as shall be twenty-four (24) months from the first day of the month in which said date of occupancy by Tenant shall occur. Thereafter, Tenant shall have twelve (12) successive options of twenty-four (24) months each to extend the term of the Lease on the terms and conditions herein set forth and rent shall increase in accordance with the schedule set forth in Article 3 hereof. If Tenant shall elect to extend the term of this Lease it shall on or before the first day of the sixth month preceding the expiration of the current lease term give written notice to Landlord of its irrevocable election to extend the lease term, otherwise this Lease shall expire at the end of the current lease term. Key Largo, FL 4/29/88 ,._---, , . The term "date of occupancy by Tenant", as used in this Lease, shall be the first to occur of the following two dates (a) the date upon which Tenant shall open its building to use by the public or (b) the date which shall be forty five (45) days after the date upon which Tenant's building and site improvements shall be completed in accordance with said working drawings and specifications and the possession thereof shall be tendered to Tenant. 3. Annual Minimum Rental. Tenant shall, during the lease term, pay to Landlord, at such place as Landlord shall designate in writing, from time to time, and without demand therefore, the minimum rent of: Months Monthly Rent 1-36 37-312 $7,000.00 $8,800.00 , subject to adjustments as provided in Article 6 hereof. Said rentals shall be paid in equal monthly installments on the first day of each month, in arrears for the month precedi~g, commencing upon the first day of the month following the month within which the lease term commences; provided, however, in the event the first day of the lease term shall not be the first day of a calendar month, then the rental for such month shall be prorated upon a daily basis. In the event Landlord should find it necessary to employ an attorney to enforce any of its rights hereunder, Landlord shall be entitled to collect and recover from Tenant reasonable attorney's fees incurred in connection therewith. 4. Real Estate Taxes. Tenant agrees, as part of the rent hereunder, to pay to Landlord a sum equal to the ad valorem taxes and assessments imposed upon the Demised Premises during the term of this Lease. Payment shall be made within thirty (30) days after Landlord presents a demand for payment. Tenant shall use its best efforts with the proper governmental authorities to separate the demised premises from the remainder of the shopping center for taxation and assessment purposes, but if a separate assessment cannot be obtained Tenant shall pay to Landlord its prorata share of the taxes and assessments levied against the largest parcel of which the leased premises are a part within thirty (30) days after receipt of a bill therefor from Landlord, or if Landlord requests, Tenant shall pay its prorata share of the taxes and assessments directly to the 'appropriate governmental authority when due. The term "assessments" as used herein does not include impact fees. Tenant shall not be chargeable with nor be obligated to pay any tax of any kind whatsoever which may be imposed on the Landlord, the rents payable hereunder or the demised premises, except the ad valorem real estate taxes and assessments mentioned in the first paragraph of this Article 4. -2- --I ~ " ~'1 , ;:'1 The term "taxable premises", as used in this Lease, shall be that certain land described in Exhibit A, together with Tenant's bUilding, to be constructed thereon by Landlord under the terms of this Lease. .I: I; ,. 5. Personal Property Taxes. etc. Tenant shall be liable for all taxes levied against personal property and trade fixtures placed by Tenant in the demised premises. If any such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of personal property and trade fixtures placed by Tenant in the demised premises and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord, upon demand, that part of such taxes for which the Tenant is primarily liable hereunder. " ., 6. Tenant's Bui1din~. Landlord shall construct the building and site improvements demised to Tenant hereunder, consisting of a building of approximately 12,068 square feet on the land described in Exhibit A of the configuration and in the location depicted on Exhibit B attached hereto. The plans and specifications for the building improvements are described in Exhibit C attached hereto and made a part hereof and have been approved by Tenant. Landlord shall pay for the cost to construct the bUilding. Tenant shall pay any permit fees, utility connection charges and similar fees and charges for the bUilding. Landlord shall not include in its costs for the building, or charge to Tenant, any fee or charge for its overhead or employee's time in supervising the construction of the building, except such out-of-pocket costs as are directly attributable to the construction of the bUilding. If Landlord's cost to construct the building and improve- ments exceeds Seven Hundred Thousand Three Hundred Ninety-Two and 00/100ths Dollars ($700,392.00), the monthly rent hereunder shall be increased by one-twelfth (1/12th) of ten percent (10%) of the excess amount. Tenant's said building and site improvements shall be completed and delivered to Tenant promptly and with due diligence. If the performance by Landlord of any of its obligations hereunder is delayed by reason of the act or neglect of Tenant, act of God, strike, labor dispute, boycott, governmental restrictions, riot, insurrection, war, catastrophe, act of the public enemy or any other act over which Landlord has no control, the period for the commencement or completion thereof shall be extended for a period equal to such delay. J ;~ ~~ ~ :, 7. Parkin and Other Common Areas and Sho in Center 1m rovements. Landlord may without notice to or consent of Tenant change the location of the buildings and improvements on the Shopping Center and the size and configuration of the parking lot and drives (including parking lot staging). Tenant shall pay its prorata share (based on occupied building space in the shopping center) for the cost of Common Area security services. Tenant shall pay its prorata share of such costs within thirty (30) days after receipt of a bill therefor from Landlord. 8. Repairs and Maintenance. Tenant shall make and pay for all main- tenance, replacement and repair necessary to keep the demised premises in a -3- H'j' good state of repair and in tenantable condition, including without limi- tation: (a) the foundation, roof, structure and exterior walls of such building (including the painting of exterior surfaces at no less than five- year intervals); ing; (b) sewage, gas, electric and water facilities serving the build- (c) the interior of the demised premises, including wall, floors and ceilings; (d) all windows and doors, including frames, glass, molding and hardware within the demised premises; (e) all wires and plumbing serving the building; (f) all signs, air conditioning and heating equipment, mechanical doors and other mechanical equipment situated on or in the demised premises. All fixtures installed by Tenant shall be new or newly and completely reconditioned. All alterations, additions and improvements and fixtures, including, but not limited to, carpet (other than unattached, movable trade fixtures) which may be made or installed by Tenant upon the demised premises shall be surrendered with the premises and become the property of Landlord at the te~ination of this Lease. Any asphalt tile or other floor covering of similar character which may be cemented or otherwise adhesively affixed to the floor of the demised premises shall become the property of the Landlord, all without credit or compensation to Tenant. Tenant may from time to time make such alterations, additions and improvements to the demised premises as pe~itted by paragraph 9 hereof and shall permit Land- lord to inspect all such alterations, additions and improvements at reason- able times during construction and thereafter. If at any time during the te~ of this Lease Tenant needs to make roof penetrations over the demised premises, Tenant, at Tenant's expense, shall use Landlord's contractor to make such penetrations, if required, in order to maintain existing roofing warranties held by Landlord. If any work to be done hereunder by Tenant to the roof is covered by any warranties held by Landlord, Landlord shall assign said warranties to Tenant, or if assignment of said warranties is not permitted, Landlord shall per~orm the work itself in which event Tenant shall reimburse Land- lord for toe cost of any work not covered by the warranties. All garbage and refuse shall be kept in the kind of container specified by Landlord and shAll be placed outside of the demised premises daily, prepared for collection in the manner and at the times and places specified by Landlord. If Landlord shall provide or designate a service for collection of refuse and garbage, Tenant shall use same, at Tenant's -4- expense, provided the cost thereof is competitive to any identical service available to Tenant. Notwithstanding the foregoing, Landlord may provide a central place for daily deposit of garbage, such as a "dumpster" situated in or near the shopping center, in which event Tenant shall store all garbage within its premises until the same is deposited within the dumpster or other receptacle so provided. Tenant shall maintain the inside of the demised premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures inside the demised premises; and Tenant, at its expense, shall employ the services of a reputable termite and pest exte~ination contrac- tor for the demised premises at regular intervals as Landlord may reason- ably require. Tenant shall not, without the Landlord's prior written consent, keep anything within the demised premises nor use such premises for any purposes which increases the insurance premium cost or invalidates any insurance policy carried on the demised premises or other parts of the shopping center. If Landlord should consent to such use and occupancy by Tenant, Tenant shall pay on demand, as additional rent, the additional insurance premiums resulting from such use and occupancy. All property and contents kept or stored or maintained within the demised premises by Tenant shall be at Tenant's sole risk. 9. Alterations and Additional Construction. Tenant may, at its own expense, from time to time, make such interior non-structural alterations in and to its building as it may deem necessary or suitable for its use thereof; provided, however, Tenant shall obtain Landlord's prior written consent to the drawings and specifications for such alterations. Tenant shall not make any exterior or structural changes to the building. The te~ "structural changes", as used herein, shall not include moving of non- load bearing partitions, minor plumbing and electrical work, modification and rearrangement of fixtures or other minor changes. All alterations shall be done at Tenant's sole cost and expense. No alterations shall be undertaken until Tenant shall have procured and paid for, so far as the same may be required from tfme to time, all permits and authorizations of all municipal departments and governmental subdivisions having jurisdiction thereof. Tenant shall indemnify Landlord and hold Landlord ha~less from and against any and all claims, causes of action, losses, damages or expenses (including reasonable attorney's fees) arising out of the filing or assertion of any liens against the demised premises arising out of such alterations. 10. Utilities. Tenant shall promptly pay, when due, all charges and deposits for electricity, water, telephone service, sewage service and other utilities furnished to the demised premises. Landlord may, if it so elects, furnish one or more utility services to Tenant, and in such event, -5- !' "~=I- . \ Tenant shall purchase the use of such services as are tendered by Landlord, and shall pay on demand the rates established therefor by Landlord which shall not exceed the rates which would be charged for the same services if furnished to Tenant directly by the local public utility furnishing the same to the public at large. Landlord may at any time discontinue furnish- ing any such service without obligation to Tenant other than to connect the demised premises to the public utility, if any, furnishing such service. Landlord shall not be liable for any interruption whatsoever in utility services not furnished by it, nor for interruptions in utility services furnished by it which are due to fire, accident, strikes, acts of God or other causes beyond the control of Landlord or in order to make alterations, repairs or improvements. 11. Governmental Re2ulations. Tenant shall with all requirements, rules, orders and regulations of and municipal governments or other duly constituted affecting the demised premises and its use thereof. observe and comply the federal, state public authority 12. Dama2e to Demised Premises. Tenant shall procure fire insurance with extended coverage endorsement upon the building erected by Landlord in an amount equal to the replacement value of the building above the foundation walls. Such policies of fire insurance shall insure and be payable to Landlord and Landlord's mortgagee, if any, and shall provide for release of insurance proceeds to Landlord for restoration of loss. Landlord and Landlord's mortgagee, if any, shall be furnished certificates from the insuring company showing the existence of such insurance. In case of loss, Landlord is hereby authorized to adjust the loss and execute proof in the name of all parties in interest. During such period as the Tenant's building is rendered uninhabitable due to fire or other casualty, then in such event the rental payments here- under shall abate as to the uninhabitable space until the premises are rendered habitable. In the event that Landlord is unable to effect repairs to render the premises habitable within one hundred eighty (180) days at the date the loss was sustained, Tenant shall have the option to cancel the remaining term of the Lease. In the event that, at any time during the lease term, the permanent improvements then constituting Tenant's building and site improvements shall be damaged er destroyed (partially or totally) by fire or any other casualty insurable under a standard fire and eytended coverage endorsement, Landlord shall, using the insurance proceeds, promptly and with due dili- gence, repair, rebuild and restore the same, as nearly as practicable, to the condition existing just prior to such damage or destruction. Anything herein to the contrary notwithstanding, it is understood and agreed that if as a result of any such damage or destruction and if the extent of such damage or destruction is such that the cost of restoration -6- c.f'J-Wf '. would exceed fifty percent (50%) of the amount it would have cost to replace the Tenant's building on the demised land, in its entirety, at the time such damage or destruction took place, then either Tenant or Landlord may terminate this Lease as of the date of such damage or destruction by giving written notice to the other within thirty (30) days thereafter and Tenant shall have an additional sixty (60) days, rent free, within which to remove its property from the demised premises. In the event this Lease is terminated, as hereinbefore provided, all Tenant's insurance proceeds shall belong to Landlord and/or Landlord's mortgagee, if any, as their interest may appear. In the event that this Lease shall be terminated, as hereinabove provided, all unearned rent and other charges paid in advance shall be refunded to Tenant. In the event that, at any time during the lease term, any building or buildings owned by Landlord within the site depicted on Exhibit "B", other than Tenant's bUilding, shall be damaged or destroyed (partially or totally) by fire, the elements or any other casualty, Landlord shall use its best efforts to promptly and with due diligence repair, rebuild and restore the same, as nearly as practicable, to the condition existing just prior to such damage or destruction or, in the alternative, Landlord shall use its best efforts to clear, clean and raze the fire damaged buildings. Each party hereto has hereby remised, released and discharged the other party hereto and any officer, agent, employee or representative of such party of and from any liability whatsoever hereafter arising from loss, damage or injury caused by fire or other casualty from which insur- ance (permitting waiver of liability and containing waiver of subrogation) is carried by the party at the time of such loss, damage or injury to the extent of any recovery by the injured party under such insurance. 13. Indemnitv. Nonliability and Insurance. Landlord shall not be liable to Tenant or to Tenant's employees, agents, guests or invitees, or to any other person whomsoever, for any injury to persons or damage to property on or about the demised premises caused by the negligence or mis- conduct of Tenant, its employees, subtenants, licensees and concessionaires or of any other person entering the shopping center under express or implied invitation of Tenant or arising out of the use of the demised premises by Tenant and the conduct of its business therein or arising out of any breach or default by Tenant in the performance of its obligations hereunder, and Tenant hereby agrees to defend and indemnify Landlord and hold Landlord harmless from any loss, expense or claims arising , out of such damage or injury. ~ Tenant shall procure and maintain throughout the term of this Lease a policy or policies of insurance, at its sole cost and expense, insuring Tenant and Landlord against any and all liability for injury to or death to a person or persons, and for damage to or destruction of property occasion- ed by or arising out of or in connection with the use or occupancy of the demised premises, or by the condition of the demised premises, the limits of such policy or policies to be in an amount not less than 'five million -7- A. ~.... ---'1 dollars ($5,000,000.00) in respect to injuries to or death of any number of persons arising out of anyone occurrence, and an amount of not less than five hundred thousand dollars ($500,000.00) in respect to property damaged or destroyed in anyone occurrence. Tenant also agrees to carry insurance against fire and such other risks as are from time to time included in standard extended coverage insurance (including vandalism and malicious mischief endorsements) for the full insurable value of Tenant's merchan- dise, trade fixtures, furnishings, wall covering, carpeting, drapes, equip- ment and all items of personal property of Tenant located on or within the demised premises. Tenant shall be responsible for the maintenance of the plate glass in or on the demised premises. Landlord and Landlord's agents and employees shall not be liable to Tenant for any injury to person or damage to property sustained by Tenant or any person claiming through Tenant resulting from any accident or occur- rence in the demised premises or on the shopping center, including, but not limited to, injury or damage; including, but not limited to, consequential damage caused by the demised premises or other portions of the shopping center becoming out of repair or by defect in or failure of equipment, pipes, or Wiring, or by broken glass, or the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the demised premises (except where due to Landlord's willful failure to make repairs required to be made hereunder, after the expiration of a reasonable time after written notice to Landlord of the need for such repairs); nor shall Landlord be liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of other tenants of the shopping center or of any other persons whomsoever, excepting only duly authorized employees and agents of Landlord. All fire and extended coverage insurance and boiler insurance carried either by Landlord or Tenant covering losses arising out of the destruction or damage to the demised premises or its contents or to other portions of the shopping center shall provide for a waiver of rights of subrogation against Landlord and Tenant on the part of the insurance carrier and to the extent, but only to the extent, that such insurance shall require a release of the claim of the insured against the other party for losses arising out of the hazard covered, thereby such claim shall be deemed released. Tenant shall deliver to Landlord certificates of all insurance required hereunder. All insurance policies required of Tenant hereunder shall be written by responsible and reputable companies acceptable to Land- lord and shall contain a written obligation on the part of the,insurance company to notify Landlord at least ten (10) days prior to cancellation of such insurance. If Tenant shall fail to comply with any of the require- ments herein contained relating to insurance, Landlord may obtain such insurance, and Tenant shall pay to Landlord, on demand, as additional rent hereunder, the premium cost thereof. In addition, but not more often than once every five (5) years, Landlord shall have the right to direct Tenant to increase the coverage of any insurance required in this article to reflect any decrease in the value of the dollar or increase in risk from that as existed on the date hereof. -8- ."S. . .~ Landlord and Tenant, and all parties claiming under them, mutually release and discharge each other from all claims and liabilities arising from or caused by any casualty or hazard covered or required hereunder to be covered, in whole or in part, by insurance on the demised premises or in connection with property on or activities conducted on the demised premises; and waive any right of subrogation which might otherwise exist in or accrue to any person on account thereof, provided, that such release shall not operate in any case where the effect is to invalidate or increase the cost of such insurance coverage (provided, that in the case of increased cost, the other party shall have the right, within thirty (30) days following written notice, to pay such increased cost, thereby keeping such release and waiver in full force and effect). 14. Eminent Domain. If more than ten percent (10%) of the floor area of the demised premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this Lease shall terminate and the rent shall be abated during the unexpired portion of this Lease, effective on the date physical possession is taken by the condemning authority. If less than ten percent (10%) of the floor area of the demised premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain, or by private purchase in lieu thereof, this Lease shall not terminate; how- ever, the rental payable hereunder during the unexpired portion of this Lease shall be reduced in proportion to the area taken effective on the date physical possession is taken by the condemning authority, and Landlord shall make all necessary repairs or alterations within the scope of Land- lord's original work necessary to make the demised premises an architec- tural whole. If any part of the remainder of the shopping center should be taken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain, or by private purchase in lieu thereof, this Lease shall not terminate, nor shall the rent payable here- under be reduced, nor shall Tenant be entitled to any part of the award made for such taking; except, that either Landlord or Tenant may terminate this Lease if the parking area situated on the shopping center remaining followi~g such taking plus any additional parking area provided by Landlord in reasonable proximity to the shopping center shall be less than seventy percent (70%) of the original parking area. Any election to terminate this Lease folloWing condemnation shall be made within thirty (30) days after the date on which physical possession is taken by the condemning authority. All compensation awarded for any taking (or the proceeds of private sale in lieu thereof), whether for the whole or a part of the demised premises, shall be the property of Landlord (whether such award is compen- sation for damages to Landlord's or Tenant's interest in the demised -9- .... t.,. --~l i? .: ~ ~ ! /', 1 " .; ( ,. premises), and Tenant hereby assigns all of its interest in any such award to Landlord; provided, however, Landlord shall have no interest in any award made to Tenant for loss of business or for the taking of Tenant's fixtures and other property within the demised premises if a separate award for such items is made to Tenant. 15. Use. Assi~nment Sublettin~ and Other Restrictions. The premises hereby demised may be used only for a public library and related public purposes incidental to a library operation, and for no other purpose. Tenant shall not assign this Lease or sublet the whole or any part of the demised premises. Tenant shall procure at its own expense, any permits and licenses required for its use of the demised premises and otherwise comply with all applicable laws, ordinances and governmental regulations, as well as all requirements from time to time imposed by Landlord's fire and extended coverage insurance carriers that are directly related to Tenant's use and that are necessary to retain Landlord's insurance rates. 16. Si~ns. Tenant shall not erect, install or maintain any temporary or permanent signs on the demised premises on the exterior of Tenant's building except as permitted by Landlord. 17. Tenant's Default. Tenant shall be deemed in default hereof in the event Tenant should: (a) remain in default in the payment of rent, or other payment of money, for a period of ten (10) days after the same is due; or (b) remain in violation of any other of the covenants performable by Tenant hereunder after the expiration of thirty (30) days following the receipt of notice of such violation; provided, however, if the covenants are of such a nature that it cannot be remedied in thirty (30) days, then Tenant shall not be considered in default so long as it commences to cure such default within such thirty (30)-day period and thereafter diligently pursues the same; Upon default, Landlord may immediately re-enter the demised premises by summary proceedings, or otherwise, without being liable for prosecution therefor; take possession of the demised premises and remove all persons therefrom; and may elect to either cancel this Lease or relet the premises as agent for Tenant or otherwise, and receive the rent therefor, applying the same first to the payment of such expenses as the Landlord may be put to in entering and letting and then to the payment of the rent payable under this Lease and the fulfillment of Tenant's covenants hereunder, the balance, if any, to be paid to Tenant, who shall remain liable for any deficiency. Upon the re-entering of said premises, Landlord may remove all or any part of the personal property of Tenant remaining on the premises and store the same at Tenant's expense. Tenant shall be obligated to return all keys to the demised premises to Landlord upon Landlord's re- entering of said premises. -10- .' ,.. '''~'''''':'I Notwithstanding any such reletting without termination, Landlord may at any time thereafter terminate this Lease for any prior breach or default. If Landlord terminates this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages incurred by reason of such breach or default, including all costs of retak- ing the premises and including the excess, if any, of the total rent and charges reserved in this Lease for the remainder of the lease term over the then reasonable rental value of the premises for the remainder of the lease term, all of which shall be immediately due and payable by Tenant to Land- lord. Landlord, at any time after Tenant commits a default, shall have the further right to cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or performs any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date, shall bear interest at the highest lawful rate from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with interest thereon, shall be construed as additional rent. 18. Exculpation. Anything to notwithstanding, the covenants contained in Landlord shall not be binding personally, made for the purpose of binding only the which Landlord owns in the demised premises. the contrary in this Lease this Lease to be performed by but instead, said covenants are fee simple or leasehold estate 19. BankrUPtcy. If a petition of bankruptcy or reorganization shall be filed by or against Tenant, Tenant shall become bankrupt, Tenant shall make a general assignment for the benefit of creditors, or in any proceeding based upon the insolvency of Tenant a receiver or trustee of all of the property of Tenant shall be appointed and shall not be discharged within ninety (90) days after such appointment, then Landlord may terminate this Lease by giving written notice to Tenant of its intention so to do; provided, however, neither bankruptcy, insolvency, reorganization, an assignment for the benefit of creditors nor the appointment of a receiver or trustee shall affect this Lease or permit .its termination so long as the covenants on the part of Tenant to be performed shall be performed by Tenant, or someone claiming under it. 20. Mort~a~e Subordination. Upon written request by Landlord, Tenant shall execute and deliver an agreement subordinating this Lease to any first mortgage upon the demised premises; provided, however, such sub- o~dination shall be upon the express condition that the validity of this Lease shall be recognized by the mortgagee and that, notwithstanding any default by the mortgagor with respect to said mortgage or any foreclosure thereof, Tenant's possession and right of use under this Lease in and to the demised premises shall not be disturbed by such mortgagee unless and until Tenant shall breach any of the provisions hereof and this Lease or Tenant's right to possession hereunder shall have been terminated in accordance with the provisions of this Lease. -11- ""~'I 21. Tenant Indemnifies Landlord. During the lease term Tenant shall indemnify and save Landlord and Landlord's ground lessor, if any, harmless against all penalties, claims or demands of whatsoever nature arising from Tenant's use of the demised premises, except those which shall result, in whole or in part, directly or indirectly, from the default or negligence of Landlord. 22. Condition of Premises at Termination. At the expiration or earlier termination of the lease term Tenant shall surrender the demised premises, together with alterations, additions and improvements then a part thereof, in good order and condition, except for the following: (i) ordinary wear and tear, (ii) repairs required to be made by Landlord and (iii) loss or damage by fire, the elements and other casualty. All furni- ture and trade fixtures installed in said building at the expense of Tenant, or other occupant, shall remain the property of Tenant, or such other occupant; provided, however, Tenant shall, at any time and from time to time, during the lease term, have the option to relinquish its property rights with respect to such trade fixtures (including but not limited to air conditioning machinery and lighting fixtures), which option shall be exercised by written notice of such relinquishment to Landlord and, from and after the exercise of said option, the property specified in said notice shall be the property of Landlord. 23. Holdin~ Over. If Tenant holds over or occupies the demised premises beyond the lease term (it being agreed there shall be no such holding over or occupancy without Landlord's written consent), Tenant shall pay Landlord for each day of such holding over at a sum equal to twice the minimum monthly rent prorated for the number of days of such holding over, plus a pro rata portion of all other amounts which Tenant would have been required to pay hereunder had this Lease been in effect. If Tenant holds over with or without Landlord's written consent, Tenant shall occupy the premises on a month to month tenancy and all other terms and provisions of this Lease shall be applicable to such tenancy. 24. Notices. Notices required under this Lease shall be in writing and deemed to be properly served on receipt thereof if sent by certified or registered mail to Landlord at the last address where rent was paid or to Tenant at its principal offices in Key West, Florida or to any subsequent address which Landlord and/or Tenant shall designate for such purpose. The date of notice shall be ,the date on which such notice is deposited in a post office of the United States Postal Service. -- 25. Captions and Definitions. Marginal captions of this Lease are solely for convenience of reference and shall not in any way limit or amplify the terms and provision thereof. The necessary grammatical changes which shall be required to make the provision of this Lease apply (i) in the plural sense, if there shall be more than one Landlord and (ii) to any landlord which shall be either a corporation, an association, a partnership or an individual, male or female, shall, in all instances, be assumed as though in each case fully expressed. Unless otherwise provided, upon the termination of this Lease under any of the Articles hereof, the parties -12- c:{'J:" , \ hereto shall be relieved of any further liability hereunder except as to acts, omissions or defaults occurring prior to such termination. 26. Partial Invaliditv. If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. 27. Entire A~reement. This Lease, the Exhibits, and Amendments or Addendums, if any, attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions, provisions and understandings between Landlord and Tenant concerning the demised premises and there are no covenants, promises, agreements, conditions, provisions or understandings either oral or written, between them other than are herein set forth. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by each party. 28. Laws of State. This Lease shall be governed by and constructed in accordance with the laws of the State of Florida. 29. Landlord's Ri~ht to Enter. Landlord, its agents and employees, shall have the right to enter the demised premises from time to time at reasonable times to examine the same and show them to prospective purchasers and other persons, provided that Landlord, its agents and employees shall not interfere with the operation or conduct of Tenant's business. Rent shall in no wise abate while any such repairs, alterations, improvements, or additions are being made. During the last six (6) months of the lease term, Landlord may exhibit the demised premises to prospective tenants and maintain upon the premises notices or signs deemed advisable by Landlord. In addition, during any apparent emergency, Landlord or its agents may enter the demised premises forcibly without liability therefor and without in any manner affecting Tenant's obligations under this Lease. Nothing herein contained, however, shall be deemed to impose upon Landlord any obligation, responsibility or liability whatsoever for any care, maintenance or repair, except as otherwise herein expressly provided. 30. No Waiver. One or more waivers of any covenant, term or condition of this Lease shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. The failure by Landlord to invoke the provisions of any articles of this Lease shall not be deemed as a waiver by Landlord to hereafter invoke such provisions. '31. Tenant's OPtion and Obli~ation to Purchase Tenant's Buildin~. Tenant may at any time during the first five (5) years of the lease term -13- .".' , .-# - .. - - . -- "------r " purchase from Landlord the land described in Exhibit A and the building and site improvements located thereon for a price equal to Landlord's cost to construct the building and improvements. If the Lease terminates or expires for any reason before the date the Lease would have ended if Tenant were to have exercised all the options to extend the lease term herein granted to Tenant, Landlord may at its option, require Tenant to purchase the land described in Exhibit A and the building and site improvements located thereon for a price equal to the Landlord's cost to construct the buildings and improvements. The land and improvements shall be conveyed to Tenant on a day within ninety (90) days following the date Tenant exercises its option to purchase, or receipt of notice from Landlord of its election to require Tenant to purchase the property, whichever is applicable, at which time Tenant shall pay to Landlord in cash or equivalent the purchase price and Landlord shall convey the land and improvements to Tenant by limited warranty deed subject to all easements, restrictions, encumbrances affecting the land improvements. Tenant shall pay all transfer, conveyance or similar taxes applicable to the sale and the cost to record the deed, if any. 32. Zonin2. The demised premises have been zoned BU-2 and BU-2Q pursuant to Monroe County, Florida Zoning Board Resolution 38-86, dated September 24, 1986. Tenant agrees that should Tenant abandon the demised premises or should Landlord re-enter the demised premises due to Tenant's default or in the event Landlord recovers possession of the demised premises for any reason, Landlord shall have the right to use the demised premises for any use consistent with BU-2 and BU-2Q zoning under the Monroe County Code. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. WITNESSED: K MART CORPORATION By: '-U( ~ r: ~ Its: Vice President MONROE COUNTY By: Its: -14- Vi",,!;) AS t. FO.,?::,: . / .' ",a: c: './ .-/ . '; ': '.1- .______ (' /f /?\ __---- -,-" 1 ~. .r~y __ ~.___.__.__._ _..__ ,/,;", .t~.~,_I','" (" ',:l.-.l__ -~-- , ,~ q2 ~., .' '..<!, ':,~, '.. ':'-,' .~~ ,:~;~ <: *" :;, .,,1 '~i .\ ,~1 .--~~ '~ ,^, ";i t~~ 'j .~ ~ ,1 j ~ ;j J '~ ,~ LEGAL DESCRIPTION ,LIBRARY SITE r~~~,,: " A PARCEL ,OF LAND BE I NG A PORT ION OF TRACI' "A n OF THE PLAT "TRADE WINDS" AS RECORDED IN PLAT BOOK 1 AT PAGE 42 OF THE 'PUBLIC RECORDS OF IDNROE COUNTY, FLORIDA, BEING IDRE PARTICULARLY DES~IBED AS FOLLOWS:' ~CEAT THE SOUTHEAST CORNER OF SAID TRACT "A"; THENCE NOo01'06"W ALONG THE ,EASTERL Y L I MI TS OF SA I D TRAeI' " A" FOR 3 02 .. 30 " FEET; THENCE S89052'54"W FOR 251.96 FEET TO AN INTERSECTION WITH ..A LINE BEING 251.96 FEET 'WESTERLY o.F, AS MEASURED AT RIGHTANGLES'AND PARALLEL TO SAID EASTERLY LIMITS OF TRACT "A", SAID INTERSECTION BEING THE 'POINT,' OF BEGINNING OF THE HEREINAFTER DESCRIBED PARCEL OF LAND; THENCE SOo01'06"E ALONG SAID PARALLEL LINE FOR 19.33 FEET; THENCES440S2'54"W FOR 58.46 FEET TO AN INTERSECTION WITH A LINE BEING 181 ~63FEET: ' NORTHERLY OF, AS MEASURED AT RIGHT. ANGLES AND PARALLEL TO, 1HE So.UTHERLY LIMITS o.F SAID TRACT "A"; THENCE S890S2'54"W ALONG SAID PARALLEL LINE FOR 19.33 TO. AN INTERSECTION WITH A LINE, BEING 31.8 ~6. '., FEET WESTERLY OF, AS MEASURED AT RIGHT AN~SAND PARALLEL: TQ.. SAID"': EASTERLY LIMITS; THENCE, NO .0'11 08 It. ALONG SAID PARALLEL ,LINE POR 86~'09", FEET; THENCE N440S2'S4"B po.R 48.90 pEBT TO AN',I!:tTERS~CTION WITH:;-A,;.,lt1NE, BEING 302.30 pEBT No.RTHERLY OPt AS MBASORED AT RIGH"l' ANGLES AND.' PARALLEL TO SAID' SOOTHERLYLIMITS; THENCE N890S2'54"E ALONG' SAID PARALLEL LINE FOR 86.09 FEET TO THE Po.INT OP BEGINNING. ' .. '0"",". SAID PARCEL CONTAINS 13108 SQUARE FEET.o.R 0.30 ACRES, mR,E, OR LESS_., rJ, ~ ~ . , .. _: 1 EXHIBIT "A" ,\ Tract A of Trade Winds, a Replat of Blocks 1, 2, 3 and the Adjoining Alleys, Naranja Road, Maule Lane and Johnson Road of "Industrial Acres" (P. B. 5, P. G. 15) Lying in Section 22, Township 61 South, Range 39 East, Key Largo, Monroe County, Florida containing approximately 21.51 acres. EXHIBIT A-1 .t!' , 'f ~J:i: Jtt ~ oJ,! .It 1.< ~E ~ iS4"i 4 L~ III! It il :0 ~ ~ ! c. i..t . . . - ---....,....".,,...,.....,-"-"'..,..-:-; : ~ ... -:!! ~ r- .. . . . . .~:" ;:: .... .,.."'~ .!:: ~ .., ..J8...",0 ...,;. cr "'=""~~a:.c\..,g cO .. "lI".... Q!!! _ _ _ ":.~ ti t m ; ;<. J 1 l:~: ~.. g q I I ~~p ~ 1, -"( 'i~~~ >I :< 'tsQ ~lL.c~~, ~ t:fi ~LH ~ < ~ h-:: ~~ ~ ~ <.,. ~ ;;,,~ H' i! 3 l'~ ~ ~ ti ~ ~ ~I ~ 5 i~df~ii~~! ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~lLC < .J ... ... eN "" I I ~. ~l~ ~)i '>> ~ -- -- ....~ ~ ~ EXHIBIT Br -4 ~ Q ~ I 'J ~ :f~ l!!ms ~ .. if a J ~t "r'lf III. I ~ E!jlf !~iifi;, ,.( e 'i a: ~~ tJ'Un ! :~:~~ i ~ ~~, I ,lIiil 1 uH ! !~@ IMUlII I' IU . ~ ~!H~ ~!s ~ -~;.~~; -!) f" t<f~ . . o~ ~~ ' . ~\l ~ . .~ j\ll ~~ ~ * ~~ ~~ t: ~~ 1l\:E 0 ~ E ~ ~ ~ ~ (l: ~ <:l ~ 6 ~s: ~ trl 15 z~ E -.......... Q. ~ ~ .Q uJ ~ ~ ~~ c r-r ... 1 .~, III I ~ ~:. 1 '21 ~~. S ,. .' . to ,\ The Plans and Specifications for this project are as follows: Plans Sheets C-2, C-3, C-5, C-7, SE-2 (issued for reference only), R, A-1 thru A-7, S-l thru S-6, M-1, E-1, E-2, E-3 and Specification Division 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 15 and 16. The Plans and Specifications are Bids" June 22, 1987 prepared by Architects, Incorporated, 200 Suite 1540, Hartford Building, for K mart Corporation. EXHIBIT C EJS/11335/0439/AD9 , --~-r all dated "Issued For Bentley Engineers and East Robinson Street, Orlando, Florida 32801 .iF