Resolution 180-1987
I' ..--..
Monroe County Commission
RESOLUTION NO. 180 -1987
A RESOLUTION OF THE BOARD OF COUNTY COMl-nS-
SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING
THE MAYOR AND CHAIRMAN OF SAID BOARD TO EXECUTE
A LEASE AGREEMENT BY AND BETWEEN K MART
CORPORATION AND MONROE COUNTY CONCERNING THE
MONROE COUNTY PUBLIC LIBRARY KEY LARGO
BRANCH.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, that said Board hereby authorizes the
Mayor and Chairman of the Board to execute a Lease Agreement by
and between K Mart Corporation and Monroe County, a copy of same
being attached hereto and made a part hereof, concerning the
Monroe County Public Library - Key Largo Branch.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 21st day of April, A.D. 1987.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
(SEAL)
ATTEST:
J~
~~,fJ.c
LEASE AGREEMENT
MONROE COUNTY PUBLIC LIBRARY
KEY LARGO BRANCH
THIS LEASE made and entered into as of this day of
, 1987, between K Mart Corporation, a Michigan corpo-
ration, having its principal office at 3100 West Big Beaver Road,
Troy, Michigan (herein referred to as "Landlord"), and MONROE
COUNTY, a political subdivision of the State of Florida, having
offices at 500 Whitehead Street, Key West, Florida 33040 (herein
referred to as "Tenant").
WITNESSETH: That in consideration of the rents, covenants
and conditions 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 easement and
right to use all public and common facilities erected or serving
a shopping center to be constructed by Landlord upon the property
described in Exhibit A-I, 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 ,approximate location and of the approxi-
mate 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 property described in Exhibit A-I hereto is
sometimes herein referred to as the "shopping center".
2. Term. The 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-
five (25) years from the last day of the month in which said date
of occupancy by Tenant shall occur.
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 speci-
fications 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
annual minimum rentals of:
Year
Annual Rent
1-3
4-25
$ 66,374
$ 99,560
Said rentals shall be paid in equal monthly installments on the
first day of each month commencing upon the first day of the
lease term; 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.
Tenant shall be liable for, and Landlord may collect a
late charge, not to exceed five cents ($.05) for each dollar of
each monthly installment of rent unpaid by the eleventh (11th)
day of each month, such charge to be in addition to and not in
lieu of any other remedy of Landlord hereunder. In the event
Landlord should find it necessary to employ attorneys of the
purpose of collecting any sum due hereunder then such party shall
be entitled to recover reasonable attorney.s fees which shall in
no event be less than ten percent (10%) of any such sum re-
covered. 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. The parties her~1;>y recognize the
fact that the premises hereby being rented 4:/6 being rented to
Monroe County for and in behalf of an agency of Monroe County.
As such, Monroe County is exempt from any ad valorem taxes
because it would be taxing itself and also is exempt from any
assessments for the same reason. It is agreed by the County,
however, that if there are any special charges made by any
governmental body that applies to the County will be cared for by
the County.
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 of the demised premises,
except any valid assessments recognized by Monroe County by
proper authority.
Landlord and Tenant shall use their best efforts to
have the taxable premises (as hereinafter defined and shown in
Exhibit 1), separately assessed from any contiguous lands,
contiguous buildings and from any additional lands and improve-
ments incorporated into the demised premises and shall use its
best efforts with the proper governmental authorities to sepa-
rately define said lands demised herein and have the same exempt
from taxation as a function of County government and during the
term of this lease to treat said lands as if in the same fashion
as all other County owned properties are treated for taxation and
assessment purposes.
If called on by the Landlord, the Tenant
whatever consultation is available to them to have
fairly assessed represented by these demised premises
participate in any and all activities concerning
assessment of the demised premises during the time and
this leasehold.
shall use
the lands
and shall
the non-
extent of
The term Ittaxab1e premiseslt as used in this lease shall
be that certain land described in Exhibit A, together with the
Tenant. s building, to be constructed thereon by Landlord under
the terms of this lease.
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 assess-
ed 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 Building. Landlord shall, at its sole cost
and expense, 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. Landlord's work is limited to the improvements Landlord
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typically constructs for its retail tenants which is generally
described in Exhibit C attached hereto and made a part hereof.
Any additional work will be done only if Landlord and Tenant
agree, and if tenants pay for the cost of such work. Plans and
specifications for the building improvements shall be initially
prepared by Landlord and submitted to Tenant for its review and
approval, which approval shall not be unreasonably withheld or
delayed. Tenant shall notify Landlord of any requested changes
in the plans and specifications within thirty (30) days of its
receipt of the plans and specifications, failing which, the said
plans and specifications shall be deemed approved. The Landlord
shall make such of the revisions or correct the plans and speci-
fications requested by Tenant as are acceptable to Landlord, and
submit the revised plans and specifications to Tenant for its
approval, which approval shall not be unreasonably withheld or
delayed. Tenant shall be deemed to have approved any plans and
specifications submitted to it if it does not notify Landlord of
its disapproval and reasons therefor within thirty (30) days of
receipt of the plans and specifications. If Landlord determines
that the cost to construct the building and improvements accord-
ing to the approved plans and specifications will exceed
$664,000, Landlord shall advise Tenant and if within thirty (30)
days after the date of such notice Landlord and Tenant are unable
to reach an agreement on revisions to the building and improve-
ments acceptable to both that reduces the cost of construction
below said amount, this lease shall terminate and the parties
shall have no further liability hereunder. Tenant.s said build-
ing 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.
7. Parking and Other Common Areas and Shopping Center
Improvements. Prior to commencement of the lease term, Landlord
shall complete, at its sole cost and expense, construction of all
on-site and off-site improvements and common area improvements
required for the use and operation of the demised premises and
the shopping center premises (to be constructed by Landlord) as a
retail shopping center complex, substantially as depicted on
Exhibit B.
8. Repairs and Maintenance. Tenant shall make and pay
for all maintenance, replacement and repair necessary to keep the
demised premises in a good state of repair and in tenantable
condition, including without limitation:
(a) the foundation, roof, structure and exterior walls
of such building (including the painting of exterior surfaces at
no less than five-year intervals);
(b) sewage, gas, electric and water facilities servi.ng
the building;
(c) the interior of the demised premises, including
wall, floors and ceiling;
(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
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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 surren-
dered with the premises and become the property of Landlord at
the termination 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 permitted by paragraph 9 hereof and shall permit Landlord to
inspect all such alterations, additions and improvements at
reasonable times during construction and thereafter.
If at any time during the term 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 exist-
ing 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
perform the work itself in which event Tenant shall reimburse
Landlord for the 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 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 prem-
ises 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 extermination contractor for the demised prem-
ises at regular intervals as Landlord may reasonably 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
shall 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. Alternations 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
term "structural changes", as used herein, shall not include
moving of non-load bearing partitions, minor plumbing and elec-
trical work, modification and rearrangement of fixtures or other
minor changes.
All alterations shall be done at Tenant's sole cost and
expense.
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No alterations shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required
from time to time, all permits and authorizations of all munici-
pal departments and governmental subdivisions having jurisdict-
ions thereof.
Tenant shall indemnify Landlord and hold Landlord
harmless 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, Tenant shall
purchase the use of such services as are tendered by Landlord,
and shall pay on demand the rates established therefor by Land-
lord 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 furnishing 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 Regulations. Tenant shall observe and
comply with all requirements, rules, orders and regulations of
the federal, state and municipal governments or other duly
constituted public authority affecting the demised premises and
its use thereof.
12. Damage 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
Land10rd.s mortgagee, if any, and shall provide for release of
insurance proceeds to Landlord for restoration of loss. Landlord
and Land10rd.s mortgagee, if any, shall be furnished certificates
from the insuring company showing the existence of such insur-
ance. In case of loss, Landlord is hereby authorized to adjust
the loss and execute proof in the name of all parties in inter-
est.
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 or destroyed (partially or
totally) by fire or any other casualty insurable under a standard
fire and extended coverage endorsement, Landlord shall, using the
insurance proceeds, 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.
Anything herein to the contrary notwithstanding, it is
understood and agreed that if (i) as a result of any such damage
or destruction during the last two (2) years of the lease term,
Tenant's fixtures, equipment or other property shall be damaged
or destroyed in an amount exceeding TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000) or (ii) such damage or destruction shall have
taken p lace wi thin five (5) years of the then scheduled ex-
piration date of the current term of the lease and if the extent
of such damage or destruction is such that the cost of restora-
tion would exceed fifty percent (50%) of the amount it would have
cost to replace the Tenant.s building on the demised land, in its
5
entirety, at the time such damage or destruction took place, then
and, in either of such event, 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, and if Tenant is carrying fire insurance equal to the
replacement value of the building above the foundation walls, all
the 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, em-
ployee 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 insurance (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. Indemnity, Non1iabi1ity 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 misconduct 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 obliga-
tions hereunder, and Tenant hereby agrees to defend and indemnity
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 of 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 occasioned 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 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 fire hundred thousand dollars
($500,000.00) in respect to property damaged or destroyed in any
one 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 merchandise, trade fixtures, furnishings, wall covering,
carpeting, drapes, equipment and all items of personal property
of Tenant locate don or within the demised premises. Tenant
shall be responsible for the maintenance of the plate glass in or
on the demised premises.
6
Landlord and Landlord.s agents and employees shall not
be liable to Tenant for any injury to person or damage to proper-
ty sustained by Tenant or any person claiming through Tenant
resulting from any accident or occurrence 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 leak-
ing, escaping or flowing into the demised premises (except where
due to Land10rd.s willful failure to make repairs required to be
made hereunder, after the expiration of a reasonable time after
wri tten 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 whomso-
ever, 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 de1i.ver 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 Landlord and shall contain a written
obligation on the part of the insurance company to notify Land-
lord at least ten (10) days prior to cancellation of such insur-
ance. 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 addi-
tion, 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.
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 quas i-pub lie 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 authori-
ty.
If less than ten percent (10%) of the floor area of the
demised premises should be taken for any public or quasi-public
"7
I
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; however, 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 Landlord's original work necessary to make the
demised premises an architectural 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 hereunder 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 following 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.
All compensation awarded for any taking (or the pro-
ceeds 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 compensation for damages to Landlord's or
Tenant I s interest in the demised 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 Tenantls
fixtures and other property within the demised premises if a
separate award for such items is made to Tenant.
15. Use,
The premises ere y
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 govern-
mental regulations, as well as all requirements from time to time
imposed by Land10rdls fire and extended coverage insurance
carriers that are directly related to Tenantls use and that are
necessary to retain Landlord's insurance rates.
16. Signs. Tenant shall not erect, install or maintain
any temporary or permanent signs on the demised premises on the
exterior of Tenantls 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 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 dili-
gently pursues the same.
Upon default, Landlord may immediately re-enter the
demised premises by summary proceedings, or by force, or other-
wise, without being liable for prosecution therefor; take posses-
sion of the demised premises and remove all persons therefrom;
and may elect to either cancel this lease or relet the premises
8
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 un~er this lease and the fulfillment
of Tenantls 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 Tenantls expense. If said personal property
remaining on the premises is not claimed by Tenant within sixty
(60) days after such entry, title to the same shall vest in
Landlord. Tenant shall be obligated to return all keys to the
demised premises to Landlord upon Land10rdls re-entering of said
premises.
Notwithstanding any such re1etting 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 retaking 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 remain-
der of the lease term, all of which shall be immediately due and
payable by Tenant to Landlord.
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 the contrary in this lease
notwithstanding, the covenants contained in this lease to be
performed by Landlord shall not be binding personally, but
instead, said covenants are made for the purpose of binding only
the fee simple or leasehold estate which Landlord owns in the
demised premises.
19. Bankruptct. If a petition of bankruptcy or reorgani-
zation shall be fi ed 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, reorgani-
zation, 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. Mortgage Subordination. Upon written request by
Landlord, Tenant shall execute and deliver an agreement subordin-
ating this lease to any first mortgage upon the demised premises;
provided, however, such subordination 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, Tenantls 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 provi-
sions hereof and this lease or Tenant's right to possession
9
hereunder shall have been terminated in accordance with the
provisions of this lease.
21. Tenant Indemnifies Landlord. During the lease term
Tenant shall indemnify and save Landlord and Landlord I s ground
lessor, if any, harmless against all penalties, claims or demands
of whatsoever nature arising from Tenant I 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 Land-
lord.
22. Condition of Premises at Termination. At the expira-
tion or earlier termination of the lease term Tenant shall
surrender the demised premises, together with alterations,
additions and improvement 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, and 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 the
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. Holding 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 Definition. Marginal captions of this
lease are solely for convenience of reference and shall not in
any way limit or amplify the terms and provisions 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 hereto shall be relieved of any
further liability hereunder except as to acts, omissions or
defaults occurring prior to such termination.
26. Partial Invalidity. If any term, covenant or condi-
tion 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 circumstance 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
10
lease shall be valid and be enforced to the fullest extent
permitted by law.
27. Entire Agreement. 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 cove-
nants, promises, agreements, conditions, provisions or under-
standings 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. Land10rdls Right 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 Tenantls 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 prospec-
tive 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 Tenantls 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 subse-
quent similar act. The failure by Landlord to invoke the pro-
visions of any articles of this lease shall not be deemed as a
waiver by Landlord to hereafter invoke such provisions.
31. Tenant I s Option to Purchase. At any time during the
term of this lease, Tenant shall have the option to purchase the
land described in Exhibit A and the improvements located thereon
for a price equal to Land10rdls cost to construct the improve-
ments located on the land described in Exhibit A. If Tenant
elects to purchase the land and improvements, it shall do so by
written notice to Landlord. If Tenant shall have duly exercised
the aforesaid option to purchase, the land and improvements shall
be conveyed to Tenant on a day within ninety (90) days following
Landlord's receipt of such notice selected by Landlord, at which
time Landlord and Tenant shall close the sale and Landlord shall
convey the land and improvements to Tenant by limited warranty
deed subject to all easements, restrictions, encumbrances affect-
ing the land and improvements. Landlord agrees the Tenant has
the option of paying the purchase price either in lump sum or in
yearly installments in an amount not less than a sum of
$100,000.00 per year together with interest of per annum
on the unpaid balance. The foregoing to be secured by purchase
money mortgage. Tenant shall pay all transfer, conveyance or
similar taxes applicable to the sale and the cost to record the
deed.
32. Zoning. 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
11
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.
K MART CORPORATION
By
Its:
(Corporate Seal)
Attest:
By
Its:
MONROE COUNTY, FLORIDA
By
Mayor/Chairman of the Board
of County Commissioners
(Seal)
Attest:
Clerk
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12