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Agenda 03/09/2010 Item #16D 9 Agenda Item No. 1609 March 9, 2010 Page 1 of 38 EXECUTIVE SUMMARY Recommendation to authorize a budget amendment not to exceed $65,000 for mitigation work associated with the fuel tank replacement at the Port of the Islands Marina and to recognize revenue from the Seller's escrow account to repay the County for the required work. Objective: To provide recreational public access to the waterways and remediate/or improve the fuel supply operation at Port of the Islands Marina. Considerations: Port of the Islands Marina was purchased with the creation of an escrow fund to pay for mitigation associated with the replacement of a single walled fuel tank at the Marina. Federal and State law required the changing of the fuel tank upon purchase to one that has an approved double walled feature. When the fuel tank was removed it was discovered that there was some minimal soil contamination associated with the old tank. There is currently $200,000 in the Seller's escrow account to pay for this work. .-~-- The costs associated with this soil contamination could not be determined until the work has been completed. HSA, the engineering firm associated with the project, has estimated that the costs associated for engineering fees would be $14,800 and Surge Solutions, the contractor onsite, cstimates removing the soil would be approximately $50,200. HSA and Surge Solutions are currently onsite and would avoid additional costs associated with remobilization if another construction firm were selected at a later date. Surge Solutions has been issued a work directive to complete the remediation work on a time and material basis, as required to mitigate the contamination. Fiscal Impact: A budget amendment is needed to recognize an amount not to exceed $65,000 from the Seller's escrow account and to increase the Port of the Isle project by a like amount within the Parks and Recreation Capital Projects Fund 306. Growth Management: Port of the Islands Marina is inventoried in the Growth Management Plan. Legal Considerations: This item has been reviewed and approved by the County Attorney's Office and is legally sufficient for Board action. - Recommendation: That the Board of County Commissioners authorizes the necessary budget amendment to fund the work directive associated with paying for mitigation work associated with Port of the Islands Marina and to recognize revenue associated with payment from the escrow account associated with the purchase of the Marina. Prepared By:: Barry Williams, Director, Parks and Recreation Department . '-.--'-~" "-"'-""-,"- 0',_'.' _, ." _L ,"'.,. . ~'O- ~ '-'''- ~ Agenda Item No. 1609 March 9, 2010 Page 2 of 38 - COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 1609 Recommendation to authorize a budget amendment not to exceed $65,000 for mitigation work associated with the fuel tank replacement at Ihe Port of the Islands Marina and to recognize revenue from the sellers escrow account to repay the County for the required work. Meeting Date: 3/9/20109:00:00 AM Approved By Jennifer White Assistant County Attorney Date County Attorney County Attorney 2/24/20101:52 PM Approved By Kathy Carpenter Executive Secretary Date Public Services Public Services Admin. 2/24/20101 :53 PM Approved By Marla Ramsey Administrator ~ Public Services Date Public Services Division Public Services Division 2/25/201010:30 AM - Approved By Barry Williams Director ~ Parks & Recreation Date Public Services Division Parks & Recreation 2/25/2010 10:48 AM Approved By OMB Coordinator Date County Manager's Office Office of Management & Budget 2/25/20101 :13 PM Approved By Susan Usher Management/Budget Analyst, Senior Date Office of Management & Office of Management & Budget Budget 3/2/20108:31 AM Approved By Mark Isackson Management/Budget Analyst, Senior Date Office of Management & Budget Office of Management & Budget 3/2/20108:38 AM ~l_."II.1 4 _~._.J_'T'__,,-\T"~_._~..+-\1~^ "l.,f____L () "'^l^ll!': 1Il""'\"ll.lDT""ll.l'T' 411r'"ll.TT"'I.411rn TllTOT11I Dr' "l''''I/'''^,^ -...._-- -~_.-.-....-. -" _.-.~. ....-.._,"'..--~*,.. ~ ..--,,~. . ..-.-.-... Agenda Item No. 1609 March 9, 2010 Page 3 of 38 PROJECT: PORT OF THE ISLANDS MARINA FOLIO NOs.: 01067080606 & 01067083807 AGREEMENT FOR SALE AND PURCHASE THIS AGREEMENT is made and entered inlo this If, '" day of December, 2008 by and between THE ISLANDS MARINA, LLC, a Florida limited liability company. and PORT OF THE ISLANDS PROPERTIES, LLC, a Florida limited liability company (hereinafter collectively referred to as "Selle~'), and COLLIER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA (hereinafter referred to as "Purchase~'). WITNESSETH WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell and transfer to Purchaser, certain uplands portions of that property known as the Port of the Islands Marina. to include approximately 2.4 acres of commercially zoned waterfront land currently used for boat trailer and car parking, an oversized single boat launch ramp, approximately 15,466 square feet of submerged land (boat launch expansion area), non-exclusive use of a 94 space parking facility, approximately 1.46 acres of commercially zoned upland property, a fueling facility, and a 7400 square foot marina building, together with the ship's store, bathrooms, offices, and Manatee and 10,000 Islands educational center housed therein, with sufficient excess square footage within said marina building in which to build a permanent Ochopee fire station, on approximately 1.4 acres of commercially zoned waterfront property; and WHEREAS, in connection with said purchase and sale, Purchaser requires perpetual, non-exclusive Public Access Easements over, under, upon and across portions of Seller's property. and the property of others, for access and ingress between the public right of way of U.S. Route 41 and all portions of the property to be purchased and sold over and upon the entire width of Newport Drive and along the westerty side of other property of Seller, as depicted on attached Exhibit B-1, together with such easements as may be necessary for use of the non- exclusive parking facil~y, and together also with easements necessary and sufficient 10 allow for riparian access and lemporary boat tie-off during launching, loading, unloading and fueling operations along the waterfront portions of the property to be purchased: and WHEREAS, Purchaser further requires such other langible and intangibie assets as may be necessary to the operattan of the ship's store, office leasing, Manatee and 10,000 Islands educational center, boat and trailer storage, boat launch, fueling facility, parking faCilities and waterfront operations existing upon the property to be purchased or used in connection therewith; and WHEREAS, the land and buildings, easements and other tangible and intangible assets referenced hereinabove are collectively referred to herein as the ~Property.; and WHEREAS, Seller desires to convey and otherwise transfer the Property to Purchaser on the terms and conditions set forth herein, and Purchaser has agreed to compensate Seller for such conveyance and transfer of the Property in the manner hereinafter described; NOW THEREFORE, in consideration of Ihese premises, the sum of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed by and between the parties as follows: I. PROPERTY SUBJECT TO PURCHASE AND SALE 1.01. The property to be purchased and sold shall consist of the following elements: 1.011. That certain parcel containing approximately 4.09 acres and being more particularly described on Exhibit A-1 attached hereto and incorporated herein by reference. Said parcel contains commercially zoned waterfront lands, boat trailer and car parking, boat launch ramp, approximately 15,466 square feet of submerged land (boat launch expansion area), fueling station and 7400 square foot manna building as hereinabove referenced and shall be conveyed together with all improvements, fixtures, - Agenda Item No. 1609 March 9, 2010 Page 4 of 38 appurtenances and appurtenant easements, including but not limijed to the rights attributable to the 4.09 acre parcel under that certain Reciprocal Parking Easement Agreement dated June 20, 2006 and recorded June 23, 2006 at O.R. Book 4060, Page 3206, Public Records of Collier County, Florida (provided that Seller retains such rights under such Easement Agreement that are not attributable to the Property), that certain Easemenl and License Agreement dated December 14, 2007 and recorded January 8, 2008 at O.R. Book 4318, Page 3206, Public Records of Collier County, Florida, and that certain Facilities Maintenance Agreement between Port of the Islands Marina Condominium Association, Inc. and The Islands Marina, LtC dated July 31, 2006 and to be recorded in the Public Records of Collier County, Florida prior to Closing. 1.012. That certain parcel containing approximately 1.46 acres of commercially zoned upland property and being more particularly described on Exhibit A-2 attached hereto and incorporated herein by reference, which shall be conveyed together with all appurtenant easements, including but not limited to the rights attributable to the 1.46 acre parcel under that certain Reciprocal Parking Easement Agreement dated June 20, 2006 and recorded June 23, 2006 at O.R. Book 4060, Page 3206, Public Records of Collier County, Florida. 1.013. A perpetual, non-exclusive easement for all purposes of vehicular and pedestrian access and ingress, including use by the general public, between the public right of way of U.S. Route 41 and the parcel described on Exhibit A-2, the area of said easement being more perticularty described on Exhibit B-1 attached hereto and incorporated herein by reference. 1.014. A perpetual, non-exclusive easement for all purposes, including use by the general public, of riparian access and temporary boat tie-off during launching, loading, unloading and fueling operations along the waterfront portions of the parcel described on Exhibit A-1, the area of said easement being more particularly described on Exhibit B-2 attached hereto and incorporated herein by reference. ---, 1.015. Those tangible and intangible assets necessary to Ihe operation of the ship's store, office leasing, Manatee and 10,000 Islands educational center, boat and trailer storage, boat launch. fueling facility, parking facilities and waterfront operations (hereinafter collectively referred to as the 'Operations') existing upon the parcel described on Exhibit A-1 or used in connection therewijh, including but not limited to the following (except to the extent certain items of personalty are expressly excluded below): (a) All furniture, fixtures, trade fixtures and equipment located on the Property, including wijhin the ship's slore, and utilized in conjunction with the Operations (which does not inClude inventory. Christopher Shucart's personal office fumijure, tools and equipment utilized in maintaining the marina property, and the marina golf cart). Purchaser and Seller agree that furniture, fixtures, trade fixtures and equipment have a fair market value of One Hundred Five Thousand and 00/100 Dollars ($105,000.00) and will be conveyed to Purchaser as a charitable donation. The furniture, fixtures, trade fixtures and equipment will be conveyed to Purchaser in their "as is~ condition and without warranty of fitness or condition. Seller shall transfer all warranties and service agreements associated with the furniture, fjxture~, trade fixtures and equipment, if any. (b) INTENTIONALLY DELETED (c) Leases, storage agreements, and other contracts to be assumed, as more particularly described on Exhibit C a<<ached hereto and incorporated herein by reference. (d) All software, technical and other supplies necessary to the Operations. (e) To the extent assignable, all licenses, permits, registrations and consents necessary to the conduct of the Operations. (f) All customer lists, customer contacts, customer relationShips and goodwill associated with and related to the Operations. (g) AJI other assets, tangible and intangible, used in connection with the Operations; but excluding cash, accounts receivable, and such property which is not specifically related to the Operations and which has been, and continues to be, used by Seller in connection with Seller's other businesses. .~-- --..-. ....-. Agenda Item No. 1609 March 9, 2010 Page 5 of 38 Notwithstanding the foregoing, Seller shall retain the exclusive right to use the Port of the Islands Marina website and logo, and the non-exclusive right to use the term "Port of the Islands Marina." 1.016. In addition to the foregoing, Purchaser shall have the option, but not the obligation, to purchase, at Seller's cost. any or all of the inventory and other goods held for re-sale located within the ship's store and marina building (other than those items described in Paragraph 1.015(a), above, as expressly excluded from the sale). Items to be purchased hereunder shall be determined based upon a physical inventory to be conducted by representatives of the Seller and the Purchaser prior to Closing. Any, inventory or other goods held for re-sale not so purchased shell be removed from the Property by Seller prior to Closing. 1.017. At the time of Closing, Purchaser shall grant to Seller a temporary easement for pedestrian and vehicular access over and upon the roadway existing along the westeMy and southerty boundaries of the 1.46 acre parcel. The temporary easement is described and depicted on attached Exhibit A-3, which is incorporated herein by reference. This temporary easement will be terminable at such time as it is determined to cause interference with Purchaser's development plans for, or use of, the Property. 1.018. Purchaser aCknowledges that Seller has historically leased or licensed twenty- one (21) of the wet-slips within the Port of the Islands Marina basin for the operation of commercial vessels. Prior to Closing, Seller shall assign to itself the right to continue this historical use by recording an assignment of such rights in the Collier County Public Records in accordance with Paragraph 17.1 of the Fourth Amendment to Declaration of Condominium of Port of the Islands Marina, a Condominium, recorded in Official Records Book 4405, Page 3615, of the Collier County, Florida, Public Records. The rights associated with such assignment are excluded from the Property. 1.019. Purchaser agrees and acknowledges that Seller will continue its efforts to sell and lease wet-slips within the Port of the islands Marina, and that the construction of boat storage facilities on that portion of the Property described in attached Exhibit A-1 by Purchaser or its successor(s) in title will compete directiy w~h Seller's efforts in this regard. For the foregoing reasons, Purchaser agrees that it will not construct any boat storage (eclllt;es on said parcel until the earlier of: 1. Such time as 96% or more of the 175 Port of the Islands Marina wet-slips have either been leased by Seller, or have been conveyed to individual third-party buyers; or 2. Nine (g) years following Closing. In exchange for the foregoing restriction, Seller agrees that it will not construct or operate any dry storage facility, convenience store, or fuel supply facility on Seller- owned lands located wH:hin the Port of the Islands community for a period terminating on the eartier of: 1. Nine (g) years following Closing; or 2. untii Seller conveys such lands (or portion thereof) to a bona-fide purchaser for value in an arm's length transaction (in which case the land conveyed to the bona-fide purchaser shall be released from the foregoing restriction). The terms of this Paragraph 1.019 shall survive Closing. 1.020. Purchaser agrees and acknowledges that the parcel described in attached Exhibit A~1 contains certain utility lines, fire hydrants. control boxes, and related equipment that are intended to serve the Port of the ISlands Marina wet-slips, gangways, and related structures. To the extent necessary, Seller shall be permitted to reserve corresponding easements over the Exhibit A-1 parcel at or prior to Closing, provided that such reserved easements do not prevent Purchaser's intended use of the Exhibit A-1 parcel. 1.021. Any obligations arising out of Paragraph S.d. of that certain Reciprocal Parking Easement Agreement referenced in Paragraphs 1.011 and 1.012 hereof shall be shared equally by Seller and Purchaser and/or their successors and assigns. The terms of this Paragraph 1.021 shall survive Closing. II. ASSUMED LIABILITIES 2.01. Except for the leases, storage agreements, or contracts listed in Exhibit C attached hereto and except as otherwise provided in this Agreement, Purchaser shall not assume any debt, accounts payable, liability. obligation, agreement, contract or -- Agenda Item No. 1609 March 9. 2010 Page 6 of 38 - lease, nor any liability under local, State or Federal laws, of Seller. Seller shall retain liability for, and shall indemnify Purchaser against, any such liabilities of Seller. 2.02. To the extent that any of the obligations listed on Exhibit C , or any other obligations of Seller not related to the Operations, contain a provision calling for the granting of a discount or discounts on the purchase of merchandise at the ship's store or fueling station, Purchaser cannot and will not honor said arrangements, and Seller shall be responsible for assuming any liability in this regard. 2.03. It is the intent of the parties that, except for the specific liabilities and obligations described in Exhibit C, exclusive of any discount arrangements as stated, Purchaser shall not be liable for any other liabilities or obligations of Seller related in any way to the Operations or the Property whatsoever, whether fixed or contingent, known or unknown, liquidated or unliquidated, arising now or in the future, and Selier shall jointly and severally indemnify Purchaser against any and all such liabilities. Selier shall pay all liabilities and obligations not expressly assumed by Purchaser as of the Closing. Purchaser does not assume, and no transferee liability shall attach to Purchaser, with respect to any liabilities or obligations of Seller or related in any way to the Operations or the Property or actions of Seller, which are not specificaliy assumed by Purchaser pursuant to this Agreement, including, without limitation, liabilities arising in connection with the Operations and the activities of Seller prior to the Closing. The elimination of any risk of such transferee liability attaching to Purchaser is a primary inducement to Purchaser's entering into this transaction, in that Purchaser would not have entered into this transaction under circumstances where any such transferee liability would or might attach to Purchaser. The entire negotiations of the parties with respect to this transaction, including the purchase price, were based upon the assumption and agreement that Purchaser would not succeed to any liability or obligation of Seller, or related in any way to the Operations or the Property, except for those liabilities and obligations expressly assumed in Exhibit C. 2.04. In the event that any obligation listed on Exhibit C requires rents received to be prorated between Purchaser and Seller, unless acceptable alternative procedures are made, Purchaser shall receive such rents in total and remit Selier's share thereof to Seller as received, III. PURCHASE PRICE AND PAYMENT 3.01. The purchase price (the "Purchase Price") for the Property shall be Five Million, Four Hundred Eighty-Eight Thousand and no/l00 Doliars ($5,488,000.00) (U.S. Currency) payable as follows: (a) Four Miliion, Seven Hundred Fifty Thousand and no/l00 Doliars ($4,750,000.00) payable at Closing by wire transfer or County warrant from Purchaser to Seller. (b) Seven Hundred Thirty-Eight Thousand and no/100 Doliars ($738,000.00) payable at Closing as a charitable donation from Seller to Purchaser. 3.02. INTENTIONALLY DELETED. 3.03. At Closing, Purchaser shall deposit a portion of the Purchase Price, in the amount of Two Hundred Thousand and no/l00 dollars ($200,000), in a segregated or dedicated interest bearing escrow account to be maintained and held by Stewart Title Guaranty Company, formerly known as Midwest Title Company, to be disbursed pursuant to Paragraphs 16.02 or 16.04 hereof. IV. CLOSING 4.01 The Closing of the transaction shall be held on or before December 31, 2008 unless extended by mutual written agreement of the parties hereto. The Closing shall be held at the Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail East, Naples. Florida. The procedure to be followed by the parties in connection with the Closing shall be as follows: 4.011. Seller shall convey a marketable title to all elements of the Property free of any liens, encumbrances, exceptions, restrictions, or qualifications. Marketable title '--' -_.~ ----.,..- ------_.-.~~..., Agenda Item No. 1609 March 9, 2010 Page 7 of 38 shall be detennined according to applicable titie standards adopted by the Florida Bar and in accordance with Florida law. At the Closing, the Seller shall cause to be delivered to the Purchaser the items specified herein and the following documents and instruments duly executed and acknowledged, in recordable form: 4.0111. Warranty Deed in favor of Purchaser conveying title to the Property Described in Exhibit A-1 together with rights to all easements, agreements, and other rights appurtenant thereto, as specified in Paragraph 1.011 hereof, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. (c) The Seller Lease, and the rights of the tenants and licensees listed on attached Exhibit C . (d) The parking easement described in Paragraph 9.04, below. 4.0112, Warranty Deed in favor of Purchaser conveYing title to the Property Described to Exhibit A-2 together with rights to all easements, agreements, and other rights appurtenant thereto, as spec"ied in Paragraph 1.012 hereof, free and clear of aU liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. 4.0113. Easement in favor of Purchaser conveying rights to the Property described in Exhibit B-1 together with rights to all easements, agreements, and other rights appurtenant thereto, as specified in Paragraph 1.013 hereof, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. 4.0114. Easement In favor of Purchaser conveying rights to the Property Described in Exhibit 8-2 together with rights to all easements, agreements, and other rights appurtenant thereto, as specified in Paragraph 1,014 hereof, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments. (b) Such other easements, restrictions or conditions of record. 4.0115. Warranty Bill of Sale for furniture, fixtures, trade fixtures and equipment described in Paragraph 1.015(a), above, together with inventory and other goods held for re-sale detennined in accordance with Paragraph 1.016, free and clear of all liens and encumbrances. 4.0116. Assignment of leases, storage agreements and other contracts listed on Exhibit C , together with all security deposits, pre-paid rents and storage fees attributable thereto. 4.0117. Grantor's Non~Foreignt Taxpayer Identification & "GAP" Affidavits as reqUired by Section 1445 of the Intemal Revenue Code and as required by the title insurance underwriter in order to insure the "gap" and issue the policy contemplated by the tille insurance commitment. 4.0118. Public Disclosure Affidavits as required by Chapter 286, Florida Statutes. 4.0119. W-9 Forms, "Request for Taxpayer Identification and Certification" as required by the Intemal Revenue Service. 401110. Closing Representative Statement. ,...-. Agenda Item No. 1609 March 9, 2010 Page 8 of 38 4.01111. Combined Purchaser-Seller Closing Statement. 4.01112. Such evidence of authority and capac~y of Seller and its representatives to execute, acknowledge and deliver this Agreement, and all other documents as may be required to consummate the transaction contemplated hereby, as Purchasers counsel and/or Purchaser's t~le company may reasonably determine. 4.01113. All documents and documentation required pursuant to Section VIII hereof. 4.01114 Such other documents and documentation as Purchasers counsel may reasonabiy determine to be necessary for the transfer of those elements of the Property specified in Paragraph 1.015, subparagraphs (c) through (I) hereof. 4.01115. The Seller's executed counterpart of the Seller Lease. 4.012. At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the Seller the following: 4.0121. A wire transfer or negotiable instrument (County warrant) in an amount equal to the Purchase Price. No funds shall be disbursed to Seller until the Hie Company verifies that the state of the t~le 10 the Property has not changed adversely since the date of the last endorsement to the comm~ments, and the Title Company is irrevocably committed to issue the owner's title policies to Purchaser in accordance with the commitments immediately after the recording of the deeds and easements. -", 4.0122. Funds payable to the Seller representing the cash payment due at Closing in accordance with Section III hereof, shall be subject to adjustment for prorations, adjustment for the cred~ set forth in Paragraph 7.05 hereof, adjustment for sums to be paid under Paragraphs 1.015(b) and 1.016 hereof, and other adjustments as set forth herein. 4.0123. A Temporary Access Easement as referenced in Paragraph 1.017 hereof. 4.0124. The Purchasers executed counterpart of the Seller Lease. 4.0125. Combined Purchaser-Seller Closing Statement. 4.0126. Such documentation as may be necessary to evidence (for purposes of filing with the appropriate taxing bodies) the Seller charitable contribution under Paragraph 3.01(b) and Paragraph 1.015(a). 4.02. Each party shall be responsible for payment of its own attorney's fees. Seller, at ~s sole cost and expense. shall pay al Closing all documentary stamp taxes due relating to the recording of the warranty deeds and easements, in accordance with Chapter 201.01, Florida Statutes, and the cost of recording any instruments necessary to clear Sellers title to the Property. The cost of the owners Form B title policies, issued pursuant to the comm~ments shall be paid by Purchaser. The cost of the title comm~ments, title search, and closing fees charged by Title Company shall also be paid by Purchaser. 4.03. Purchaser shall pay for the cost of recording the warranty deeds and easements. Real Property taxes shall be prorated based on the current year's tax with due allowance made for maximum allowable discount, homestead and any other applicable exemptions and paid by Seller. If Closing occurs at a date upon which the current year's millage is not fixed, taxes will be prorated based upon such prior year's millage. V. REQUIREMENTS AND CONDITIONS 5.01. Upon execution of this Agreement by both parties or at such other time as spec~ied within this Section, Purchaser and/or Seller, as the case may be, shall perform the following within the times stated, which shall be conditions precedent to the Closing: "',,,"_.__ ,_e'_ "'----'- .. Agenda Item No. 1609 March 9, 2010 Page 9 of 38 5.011, Purchaser has obtained, as of November 24, 2008. AL TA commitments for owner's title insurance policies (AL TA Form 6-1970) coverin9 real estate elements of the Property, together with hard copies of all exceptions shown thereon. In addition to Purchaser's rights in paragraph 5.013 hereof to notify Seller of title defects or objections based on a survey, Purchaser shall have until December 24, 2008 to notify Seller in writing if the title commitments contain exceptions for matters that are not acceptable to Purchaser, that tille is unmarketable, or the title commitments require corrective action to be taken to make the title marketable, Seller shall have the right to cure such matters as provided in Paragraph 5.012 hereof and shall be obligated to cure, or permit payment of, any voluntarily created liens encumbering the Property at Closing. 5.012. If Purchaser shall faii to edvlse the Seller in writing of any such objections In Seller's title in the manner herein required by this Agreement, the title shall be deemed acceptable. Upon notification of Purchaser's objection to title, Seller shall have 30 days to remedy any such objections or defects in order to convey good and marketable title and Seller shell use its best efforts to do so in order to make title good and marketable. However, Seller's best efforts do not require that it payor satisfy any involuntarily created or suffered liens that it disputes, but Purchaser is not required to accept such involuntarily created or suffered liens. Seller shall be required to payor satisfy voluntarily created liens at closing. In the event Seller is unable to cure said Objections within said time period, Purchaser, by providing written notice to Seller within seven (7) days after expiration of said thirty (30) day period, may accept title as it then is, waiving any objection; or Purchaser may terminate the Agreement or Purchaser and Seller may extencl the Agreement by mutual written agreement of the parties hereto. A failure by Purchaser to give such written notice of termination within the time period provided herein shall be deemed an election by Purchaser to accept the exceptions to title as shown in the title commitment. 5.013. Seller agrees to furnish any existing surveys of the Property in Seller's possession to Purchaser within 10 (ten) days of the effective date of this Agreement. Purchaser shall have the option, at its own expense, to obtain a current survey of the Property prepared by a surveyor licensed by the Stale of Florida. No adjustments to the Purchase Price shall be made based upon any change 10 the total acreage referenced in Exhibits A-1. A-2. 6-1 and B-2, If any. Vi. APPRAISAL 6.01. Purchaser has obtained the required appraisals to determine the value of the Property pu",uam to the requirements of Flonda Slatutes, s.125.355. VIi. INSPECTION 7.01. Purchaser shall have until December 24,2008, ("Inspection Period"), to determine through appropriate investigation that: 7.011. There are no abnormal drainage or environmental requirements to the development of the Property. 7.012. WITh the exceplion of the existing, single-wailed Underground Storage Tank, the Property is in compliance with ail applicable State and Federal environmentallaws and the Property is free from any pollution or contamination. 7.013. The Property can be utilized for its intended uses and purposes for boat trailer and car parking, boat launch ramps, boat and trailer storage, waterfront and other park and recreational uses, a fueling facility, a shIp's store, rest rooms, offices, a Manatee and 10.000 Islands educational center, and a fire station and emergency medical services faCility 7.014. All structures and improvements on the property are sound, and all systems, fixtures and appliances are in good and safe operating condition. 7.015. The intended uses of the Property as a continuation of existing Operations and as a permanent fire station and emergency medical services facility is and will be permissible under existing zoning and planning regulations. - ~ Agenda Item No. 1609 March 9, 2010 Page 10 of 38 7.02. If Purchaser is not satisfied, for any reason whatsoever, with the results of any investigation, Purchaser shall deliver 10 Seller, prior to the expiration of the Inspection Period, written notice of tts intention to waive the applicable contingencies or to terminate this Agreement. If Purchaser fails to notify the Seller in wrtting of its specfflc objections as provided herein within the Inspection Period, tt shall be deemed that the Purchaser is satisfied wtth the resuns of ns investigations and the contingencies of Section VIII shall be deemed waived. In the event Purchaser elects to terminate this Agreement because of the results of its inspection and investigations, Purchaser shall deliver to Seller copies of all engineering reports, structural and systems inspection reports, and environmental and soil testing results commissioned by Purchaser with respect to the Property. 703. Purchaser and its agents, employees and servants shall, at their own risk and expense, have the right to go upon the Property at all reasonable times for the purpose of surveying and conducting site analyses. soil borings and all other necessary investigations and inspections. Purchaser shall, in performing such tests, investigations and inspections, use due care not to damage the property in any manner. Seller shall be notified by Purchaser no less than twenty-four (24) hours prior to any said inspection of the Property. 7.04. Seller acknowiedges that the Purchaser, or its authorized agents, shall have the right to inspect the Property at any time prior to the Closing, and Seller shall assist Purchaser in obtaining tenants' cooperation in the performance of these inspections. 7.05. At Closing, Seller shall validly transfer to Purchaser the 20 Year Roof Membrane Limited Warranty received from Certainteed Commercial Roofing Systems dated September 23, 2006. Seller shall heve no further liability regarding the physical condition of the Property, and Purchaser agrees, subject to the provisions of Paragraph 8.05 hereof, to accept the Property in its "as is~ condition without warranty as to fitness or condition. 7.05. Prior to Closing, Seller shall ensure that the inoperable fire hydrants exisling upon the Property are connected and operational and are capable of delivering reliable pressures and fiows acceptable to the Ochopee Fire and Rescue District. VIII. POSSESSION. EXIST!NG LEAS,ES AND AGREEMENTS. AND OCCUPANCY 8.01. Purchaser shall be entnled to full possession of the Property at Closing, excepting only those tenants in possession under those existing leases, storage agreements and contracts set forth in Exhibit C , and premises to be leased to Seller at the time of Closing in accordance with the Lease Agreement set forth in Exhibit E attached hereto and made a part hereof by reference. 8.02. At Closing, Seller shall execute, acknowiedge and deliver to Purchaser, in recordable form, a valid and enforceable assignment of all of the aforesaid leases, storage egreements end contracts and the rents, taxes, storage fees and assessments associated therewith. Rents, taxes, storage fees, and assessments and other expenses pertaining to the Property shall be prorated between Seller and Purcheser at closing based upon the applicable period, and Seller shall be responsible for payment, at cioslng, of all taxes, assessments and other expenses pertaining to the Property up to and including the date of Closing. 8.03. At Closing, Seller shall pay over to Purchaser any and all security deposits and pre-paid rents and storage fees held on account of those tenants in possession as shown on Exhibit C . 8.04. Prior to December 24, 200B, Seller shall provide Purchaser with acceptable proof that all leases and storage agreements are in good standing and not In default and, specifically, that all tenants have procured and are maintaining policies of insurance as set forth in their leases or otherwise, and that the indemnities of said policies may be assigned to Purchaser as Landlord. Selier further agrees, prior to December 24, 2008, to permit Purchaser to inspect Seller's rental receipts (rent rolls) for the past two (2) years for all current tenants subject to written leases, and to review repair and maintenance records for the buildings and other improvements upon the property, and Purchaser's performance hereunder shall be contingent upon the acceptability of said inspection and review. 8.05. At the time of Closing, with the exception of those areas occupied in accordance with those leases, storage agreements and contracts set forth on Exhibits C and D , in ,-- ..... _.._.~..." ..... -"--" Agenda Item No. 1609 March 9, 2010 Page 11 of 38 good standing, the Property will be delivered to Purchaser broom clean and free from all occupants, and their possessions, and the structures, systems and other improvements will be in the same condition as existed at the time of Purchaser's structural and systems inspections, reasonable wear and tear resuttlng from customary use and corrections to discovered defects excepted. 8.06. Without limitation of the foregoing, any boats, trailers, vehicles or other rtems existing on the property by virtue of storage agreements that are not in good standing shall be removed from the Property prior to Closing, and Seller shall assume all liability therefor. B.07. Performance by Purchaser hereunder is conditioned upon a satisfactory determination and opinion from the Purchaser's counsel that Purchaser may assume all leases, storage agreements, and contracts set forth on Exhibit C, which said determination shall be made prior to December 24, 2008. 8.08. At or before Ciosing, Seller shall provide to Purchaser estoppel letters from all current tenants subject to written leases. including attomment provisions and in form and content acceptable to Purchasers counsel. IX. ADDITIONAL CONTINGENCIES 9.01. Performance by Purchaser hereunder is contingent upon Purchaser's obtaining, prior to Closing and at Purchaser's sole cost and expense, the following items from Port of the Islands Community Improvement District 9.011. A perpetual, non-exclusive easement for all purposes of vehicular and pedestrian access and ingress, inciuding use by the general public, from the public right of way of U.S. Route 41 to the south boundary of the parcel described on Exhibit A-1, over the entire width of the right of way of Newport Drive. 9.012. Adequate assurances, by estoppel letter or otherwise, that sufficient EqUivalent Residential Connections (ERC's) will be provided to Purchaser for existing uses and Operations plus uses as a fire station, irrespective of the location of the fire station upon the Property, all at no present or future cost to Purchaser. 9.02. Performance by PUrchaser hereunder is contingent upon a determination, by Purchaser's counsel, that the rights attributable to the Property under that certain Reciprocal Parking Easement Agreement dated June 20, 2006 and recorded June 23, 2006 at O.R. Book 4060, Page 3149, Public Records of Collier County, Florida, run with the Property and will inure to the benefit of Purchaser after Closing, and that Purchaser will not thereby be subject to liabilities unacceptable to a pUblic govemmental entity without modification to said Reciprocal Parking Easement Agreement. 9.03. Performance by Seller hereunder is contingent upon the execution, by Seller and Purchaser, of that certain Lease Agreement set forth in Exhibit D attached hereto and incorporated herein by reference, which said Lease Agreement provides in pertinent part that Seller and/or SeUer's assigns shall be allowed exclusive use of certain offices in the marina building for a period of nine (9) years following Closing at no cost to Seller other than the charges reflected in the Lease Agreement. 9.04. Performance by Seller is contingent upon Purchaser permitting Seller and/or Seller's assigns to retain perpetual exclusive use of six (6) parking spaces for purposes of loading and unloading, two (2) of said spaces to be located as conveniently as possible to each of the access ways to Docks A, B, and C of the Pori of the Islands Marina Condominium at locations to be from time to time determined, and the provisions of this Paragraph 9.04 shall survive the Closing. 9.05. Performance by Purchaser is contingent upon Purchaser's ability to obtain all permits and licenses necessary to continue the Operations currently existing upon the Property without interruption. To aid in this endeavor, Seller agrees that Seller and certain members of Seller's staff shall be available to Purchaser to provide assistance and consultation during a transition period not to exceed two (2) months following Closing. In addition, if necessary, Seller agrees to continue Operations under Seller's _. -- ^.._--_.~...,-, Agenda Item No. 1609 March 9, 2010 Page 12 of 38 permits and licenses during this pened for the benefit and account of Purchaser until Purchaser's permits and licenses are effective, all at no additional cost or expense to Purchaser. X PRORATIONS 10.01. Ad valorem taxes and assessments due and payable on the Property at Closing shall be paid by Seller at Closing and prorated between the Seller and Purchaser. Seller shall further pay all 200812009 non-ad valorem taxes and assessments. 10.02. Rents, storage fees, and any other adjustments shall be prorated between the parties as of the date of Closing, with Seller being entttled to these Items through the date of Closing and Purchaser being so entitled thereafter. XI. TERMINATION AND REMEDIES - 11.01. If Seller shall have failed to perform any of the covenants and/or agreements contained herein which are to be performed by Seller, within ten (10) days of written notification of such failure, Purchaser may, at its option, terminate this Agreement by giving written .notice of termination to Seller. Purchaser shall have the right to seek and enforce all rights and remedies available at law or in equity to a contract vendee, including the right to seek specific performance of this Agreement. 11.02. If Purchaser has not terminated this Agreement pursuant to any of the provisions authorizIng such termination, and Purchaser fails to close the transaction contemplated hereby or otherwise fails to perform any of the terms, covenants and conditions of this Agreement as required on the part of Purchaser to be performed, provided Seller is not in defauit, then as Selle~s soie remedy, Seller shail have the right to terminate and cancel this Agreement by giving written notice thereof to Purchaser, and neither party shall have any further liability or obligation to Ihe other. 11.03. The parties acknowledge that the remedies described herein and in the other provisions of this Agreement provide mutually satisfactory and sufficient remedies to each of the parties, and take into account the peculiar risks and expenses of each of the parties. XII. SELLER'S AND PURCHAl'IER'S REPRESENTATIONS AND WARRANTIEl'I 12.01. Seller and Purchaser represent and warrant the following: 12.011. Seller and Purchaser have full right and authority to enter into and to execute this Agreement and to undertake all actions and to perform all tasks required of each hereunder. Seller is not presentiy the subject of a pending, threatened or contemplated bankruptcy proceeding. 12.012. Seller has full right, power, and authority to own and operate the Property, and to execute, deliver, and perform its obligations under this Agreement and the instruments executed in connection herewith, and to consummate the transaction contemplated hereby. All necessary authorizations and approvals have been obtained authorizing Seller and Purchaser to execute and consummate the transaction contemplated hereby. At Closing, certified copies of such approvals shall be delivered to Purchaser and/or Seller, if necessary. 12,013. The warranties set forth in this Section shall be true on the date of this Agreement and as of the date of Closing. 12.014. Seller represents that it has no knowledge of any actions, suits, claims, proceedings, litigation or investigations pending or threatened against Seller, at law, equity or in arbitration before or by any Federal, State, municipal or other governmental instrumentaltty that relate to this Agreement or any other property that could, if continued, adversely affect Selle~s abiiity to sell the Property to Purchaser according to the terms of this Agreement. -,,~~ -~,..----~,.. ~~ ,. -.........,. _.,---- " Agenda Item No. 1609 March 9, 2010 Page 13 of 38 12.015. No party or person olher than Purchaser has any right or option to acquire the Property or any portion thereof, excepting those portions subject to leases, storage agreements and contracts to be assumed or granted as detailed on Exhibits C and D hereto. 12016. Until the date fixed for Closing, so long as this Agreement remains in force and effect, Seller shall not encumber or convey any portion of the Property or any rights therein, nor enter into any agreements granting any person or entity any rights with respect to the Property or any part thereof, without first obtaining the written consent of Purchaser to such conveyance, encumbrance, or agreement, which consent may be withheld by Purchaser for any reason whatsoever. 12.017. To the best of Seller's knowledge. Seller represents that there are no incinerators, septic tanks or cesspools on the Property; all waste, if any, is discharged into a community sanitary sewer system. Seller represents that it has no knowledge that any pollutants are or have been discharged from the Property, directly or indirectly into any body of water. Other than the Underground Storage Tank referenced in Section XVI hereof, Seller represents that, to the best of Seller's knowledge, the Property has not been used for the production, handling, storage, transportation, manufacture or disposal of hazardous or toxic substances or wastes, as such terms are defined in applicable laws and regulations, or any other activity that would have toxic results, and no such hazardous or toxic substances are currently used in connection with the Operations on the Property other than the sale of gasoline, and there is no proceeding or inquiry by any authority with respect thereto. Seller represents that it has no knowledge that there is ground water contamination on the Property or potential of ground water contamination from neighboring properties. Seller represents that, to the besl of Seller's knowledge, no storage tanks for gasoline or any other substances are or were located on the Property at any time during or prior to Seller's ownership thereof, with the exception of the existing single- walled Underground Storage Tank and prior fuel tanks as disclosed to Purchaser. Seller represents that, to the best of Seller's knowledge, no part of the Property has been used as a sanitary landfill. 12.018. Seller has no knowledge that the Property and Seller's operations concerning the Property are in violation of any applicable Federal, State or local statute. law or regulation, or of any notice from any governmental body that has been served upon Seller claiming any violation of any law, ordinance, code or regulation or requiring or calling attention to the need for any work, repairs, construction, alterations or installation on or in connection with the Property In order to comply with any laws. ordinances, codes or regulation with which Seller has not complied. 12.019. To the best of Seller's knowledge, there are no unrecorded restrictions, easements or rights of way (other than existing zoning regulations) that restrict or affect the use of the Property, and there are no maintenance, construction, advertising, management, leasing, employment, service or other contracts affecting the Property, other than as specifically disclosed to Purchaser. 12.020. Seller has no knowledge that there are any suits, actions or arbitration, bond issuances or proposals therefor, proposals for public improvement assessments, pay-back agreements, paving agreements, road expansion or improvement agreements, utility moratoriums, use moratoriums, improvement moratoriums, administrative or other proceedings or governmental or quasi- governmental investigations or requirements, formal or informal, existing or pending or threatened which affect the Property or which adversely affects Seller's ability to perform hereunder; nor is there any other charge or expense upon or related to the Property which has not been disclosed to Purchaser in writing prior to the effective date of this Agreement. 12.021. Seller acknowJedges and agrees that Purchaser is entering into this Agreement based upon Seller's representations stated above and on the understanding that Seller will not cause the zoning or physical condition of the Property to change from its existing state on the effective date of this Agreement up to and including the date of Closing. Therefore, Seller agrees not to enter into any contracts or agreements pertaining to or affecting the Property and not to do any act or omit to perform any act which would change the zoning or physical _. - ,._---~ --'---~'._.'- Agenda Item No. 1609 March 9, 2010 Page 14 of 38 condition of the Property or the governmental or quasi-governmental ordinances or laws governing same. Seller also agrees to notify Purchaser promptly of any change in the facts contained in the foregoing representations and of any notice or proposed change in the zoning, or any other action or notice, that may be proposed or promulgated by any third parties or any governmental or quasi- govemmental author~ies having jurisdiction of the development of the Property which may restrict or change any other condition of the Property. 12.022. At Closing, Seller shall deliver to Purchaser a statemant (hereinafter called the "Closing Representative Statement") reasserting the foregoing representations as of the date of Closing, which provisions shall. survive the Closing. 12023. Seller agrees to indemnify, reimburse, defend and hold Purchaser harmless from any and all costs (including attorney's fees) esserted against, imposed on or incurred by Purchaser. directly or indirectly, pursuant to or in connection with the application of any Federal, State, local or common law relating to pollution or protection of the environment which shall be in accordance with, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., ("CERCLA" or "Superfund"), which was amended and upgraded by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), includln9 any amendments or successor in function to these acts; provided, however, that Seller's indemnity obligations hereunder are limited to environmental liability arising from the acts or omissions of Seller and its employees. This provision, and the rights of Purchaser hereunder, shall survive Closing and are not deemed satisfied by conveyance of title. 12.024. Any loss and/or damage to the Property between the date of this Agreement and the date of Closing shall be Sellers sole risk and expense. XIII. NOTICES 13.01 Any notice, request, demand, instruction or other communication to be given to e~her party hereunder shall be in writing, sent by registered or certified mail, or overnight delivery service, return receipt requested, postage and fees prepaid, add",...a as follows: If to Purchaser: Gary Bigelow Real Property Management Building W, Facilnies Management 3301 Tamiami Trail East Naples, Florida 34112 With a copy to: Jennifer A. Belpedio, Esquire Assistant County Attorney Office of the County Attorney Administration Building 3301 Tamiami Trail East Naples. Florida 34112 If to Seller: James Shucart 2614 Tamiami Trail North, Suite 700 Naples, Fl 34103 Christopher Shucart 2614 Tamiami Trail North, Suite 615 Naples, Fl 34103 With a copy to: Will J. Dempsey, Esquire Cheffy, Passidomo, Wilson & Johnson, llP 821 Fifth Avenue South, Suite 201 Naples, FL 34102 .....-- . --.-".-. "- ",-.. -',- - Agenda Item No. 1609 March 9, 2010 Page 15 of 38 13.02. The addressees and addresses for the purpose of this Section may be changed by either party by giving written notice of such change to the other party in the manner provided herein. For the purpose of changing such addresses or addressees only, unless and until such written notice is received, the last addressee and respective address stated herein shall be deemed to continue in effect for all purposes. For purposes of notice requirements herein, notice shall be deemed given upon receipt. XIV. REAL ESTATE BROKERS 14.01. Any and all brokerage commissions or fees shall be the sole responsibility of the Seller. Seller shall indemntfy Purchaser and hold Purchaser harmless from and against any claim or liability for commission or fees to any broker or any other person or party claiming to have been engaged by Seller 85 a real estate broker, salesman or representative, in connection with this Agreement. Seller agrees to pay any and all commissions or fees at closing pursuant to the terms of a separate agreement, if any. XV. MISCELLANEOUS 15.01. This Agreement may be executed in any number of duplicate original counterparts which together shall constitute the agreement of the parties. 15.02. This Agreement and the terms and provisions hereof shall be effective as of the date this Agreement is executed by both parties and shall inure to the benefrt of and be binding upon the parties hereto and their respective heirs, executors, personal representatives, successors, successor trustees, and assignees whenever the context so requires or admits. 15.03. Any amendment to this Agreement shall not bind any of the parties hereto unless such amendment is in writing and executed and dated by Purchaser and Seller. Any amendment to this Agreement shall be binding upon Purchaser and Seller as soon as it has been executed by both parties. 15.04. Captions and section headings contained in this Agreement are for convenience and reference only; in no way do they define, describe, extend or limit the scope or intent of this Agreement or any provisions hereof. 15.05. All terms and words used in this Agreement, regardless of the number and gender in which used, shall be deemed to include any other gender or number as the context or the use thereof may require. 15.06. No waiver of any provision of this Agreement shall be effective unless it is in writing signed by the party against whom it is asserted, and any waiver of any provision of this Agreement shall be applicable only to the specific instance to which it is related and shall not be deemed to be a continuing or future waiver as to such provision or a waiver as to any other provision. 15.07. If any date specified in this Agreement falls on a Saturday, Sunday or legal holiday, then the date to which such reference IS made shall be extended to the next succeeding business day. 15.08. Seller is aware of and understands that the "offer" to purchase represented by this Agreement IS subject to acceptance and approval by the Board of County Commissioners of Collier County, Florida. 15.09. If the Seller holds the Property in the form of a partnership, limited partnership, corporation, trust or any form of representative capacity whatsoever for others, S~ler shall make a written public disclosure, according to Chapter 286, Florida Statutes, under oath, of the name and address of every person having a beneficial interest in the Property before Property held in such capacity is conveyed to the Purchaser. 15.10. This Agreement IS governed and construed in accordance with the laws of the State of Florida, 15.11. This Agreement will be effective as of the date Of Purchaser's execution of this Agreement. - Agenda Item No. 1609 March 9, 2010 Page 16 of 38 XVI. UNDERGROUND STORAGE TANK BESPONSIBILlTIES 16.01 As soon as practicable following Closing, and prior to December 31, 2009, the Purchaser shall, at its own cost and expense, estimated to be in the amount of Two Hundred Thousand and nol100 Dollars ($200,000), excavate and replace the existing single-walled Underground Storage Tank in accordance with all Florida laws and regulations. 16.02. At the time of said excavation and replacement, should it be determined that no remediation of soil and ground water contamination resulting from the existing Underground Storage Tank is required, all funds held in escrow pursuant to Paragraph 3.03 hereof, together with aCCllJed interest, shall be paid over to Seller. 16.03. At the time of said excavation and replacement, should it be determined that remediation of soil and ground water contamination resulting from the existing Underground Storage Tank is necessary or required under Florida laws and regulations, Seller shall reimburse Purchaser for any and all costs associated with such remediation, including periodic monitoring, in an amount not to exceed Two Hundred Thousand and no/100 Dollars ($200,000) plus accrued Interest. 16.04. Funds held in escrow pursuant to Paragraph 3.03 hereof, together with accrued interest, shall be used to satisfy Sel~r's obligations under Paragraph 16.03. As expenses are incurred under Paragraph 16.03, payments to the Purchaser shall be made from the funds so held. At such time that Purchaser obtains written approval from the Florida Department of Environmental Protection (FDEP) that remediation compiies with Florida laws and regulations, and that no further monitoring activities are required, any remaining funds held, together w~h accllJed interest, shall be paid over to the Seller. 16.05. Following disbursement pursuant to Paragraphs 16.02 or 16.04 hereof, Seller and Purchaser shall have no further obligation to one another resulting from the provisions of this Section XVI. --- 16.06. The terms and provisions of this Section XVI constitute agreed-upon instructions to the Escrow Agent for disbursement of the escrowed funds and shall survive closing. XVII. ENTIRE AGR!;;E;MENT 17.01. This Agreement and the Exhibits attached hereto contain the entire agreement between the parties, and no promise, representation, warranty or covenant not inciuded in this Agreement or any such referenced agreements has been or is being relied upon by either party. No modification or amendment of this Agreement shall be of any force or effect unless made in writing and executed and dated by both Purchaser and Seller. IN WITNESS WHEREOF, the parties hereto set forth hands and seals as of the date first above written. Date ProjecUAcquisition Approved by BCe! ~ II r, I 'Joo'6 AS TO PURCHASER: DATED: ;.yn!;J.,1p't . I ,,- :,.;>'. ATTEST ." """, : . . . DWIGHT E ~.ij(9,~~ . ~" .~ >'_f.'j.,' ,., BOARD OF COUNTY COMMISSIONERS COLLIER COU TV, FLO IDA ':4" - ~':' ,-....... .' -' ;,\~." , , ".... " ..,,~-~;;:' .r-,' ,,- _ \ '4'.,.:.!:" , j if<., ~,,, _" , , ;f" . -","" .",' ..--" . , . .;,' '---. -~.._-_.._. ..-.----. - AS TO SELLER: DATED: ,Jilt/at:{ . THE ISLANDS MARINA, LLC, a Florida limited liability company - BY. es Shucart, Manager J9J-;? (Signature) flA~ l-O<,t; E l '-- (Printed Name) . BY: Chn pher Shucart, (Printed Name) - JYl j' (Signature) 'II" fh 7Z IX<; 6 <-'-- (Printed Name) , - AS TO SELLER: DATED: 1;;'/'';0 <(' Agenda Item No 1609 March 9, 2010 Page 17 of 38 PORT OF THE ISLANDS PROPERTiES, LLC, a Florida limited liability company , Shucart, Manager , . C~Jy6~~ (Print Name) ~~ (Signature) t./k.S 7. tht;cl <- (Printed Name) -- \ BY c\..' ~ \ \.-. Christopher Shucart, Manager f/')Y-<- - (Signature) 1-1 A Ale i' v<;; ~ L.l. (Printed Name) - Approved as to form and legal sufficiency: , . \()S ()~VJ JennJ(.,r A. Belpedi Assistant County Attorney Agenda Item No. 1609 March 9, 2010 Page 18 of38 _.~--3 " - :l . " " o . ~ " - ~ , 00 ", .,~ ~:l;;; -H ".. <." .~O -." o 0 ."" '0< ~j~ -" . e- o " < . o . < , o - " .. -- " .0 .. 'ii- g~ '0 -. !- .~ "_ eO " 0; ~a '. o e< -, '. . '0 ,. .. -. o' u' e . << g. -9 0_ . '" .! o _0 - o. ~~ " <0 z o - E-< e::>< Eljr;;: rIlO:: ,I'<l~ Orll ,p.. -' 0-" E-< ::I:: 0 uz E-< ~ rIl ~ ...: o "" ~ Cfl 2" 0:= 0 ~ :::> ti'Ot O Ii! 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I , . 1 " "~O-'''' Z2Z"'W &a:;;;:"'U t:j~t:~~ Z::EZl>.-.... <3 <:5~'" Z4z " '" ........% . -- ...........cz o:o>",:",z c;"'...."'... u:>';;I"-'~ "'0--,"- u< - . "''''EF "'''"'00 ....-" " N_. , II"';:: "'''''''"tJ ......'\:.. "''''''" ~'. """"t:: "''''<it.. N"'C= ----.'0 .. '"0" ..,:>\- '" Z "< ~ C 0",-0. . ' 4. ~ i::, , 0 " " - , " - > . a -. 00 '- .. -. ~< 00 ,- . '~ ~ . :~ a. -< "' e C)~ ~~ ;<;2 I" 0-'" , ~~~ >>~ ~-'" . o~~~g~ UUH..)_..~ -- Agenda Item No. 1609 March 9, 2010 Page 24 of 38 -- EXHIBIT C Page 1 of 3 Schedule of Leases, Storage Agreements and Contracts to be Assumed Leases: Suite No. 3 (Co-Tenant) Tenant: Principal: Address: Use: Rent: (upland share): Utilities: Security Deposrt: (upland share) Prepaid Rent: (upland share) Termination: Renewal: Remarks: Performance Mobile Marine of Naples, Inc. Richard Law 775 17~ Street SW, Neples, Florida 34117 Office space for boat rentals S450.00/month - $468.00 as of December 1, 2008 $45.00/month electrical service $450.00 $450.00 last month rent November 30, 2009 Option for two years: to November 30, 2011 Monthly rates increase by 4% on December 1.1 of each year Suite No.3 (Co-Tenant) Tenant: The Boat Club, Inc. Principal: William R. Minder Address: 780 14~ Avenue NW, Naples, Florida 34120 Use: Office for operation of private membership boat club Rent: (upland share): $450.00/month - $468.00 as of December 1, 2008 Utilities: $45.00/month electrical service Security Deposit: (upiand share) $450.00 Prepaid Rent: (upland share) $450.00 last month rent Termination: November 30, 2009 Renewal: Option for two years, to November 30, 2011 Remarks: Monthly rates increase by 4% on December 1't of each year Storage Agreements and Contracts. Name: Address: Telephone: Prepaid Annual Rent: Term: Aaron C. Winans 2011 C;u~ Shore Boulevard N, Naples, Florida 34102 859-533-6946, cell: 859-533-2709 $1,500.00 February 5, 2006 - February 5, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Frank Keller 7640 Oldfield Road, Creslline, Ohio 44827 419-683-4960, cell: 419-295-2361 $1,375.00 March 31, 2008 - March 30, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Gordy Torgerson 302 Newport Drive, No. 1512, Naples. Florida 34114 239-369-0973, cell: 612-597-7758 $1,500.00 January 1, 2006 - January 1, 2009 Jeff Biery P.O. Box 279, Damascus, Ohio 330-537-2021, cell: 330-429-1481 $1,375.00 April 2, 2008 - April 1 , 2009 Name: Address: Telephone: Prepaid Annual Rent Term: Name: Address: Telephone: Prepaid Annual Rent: Term: Joe Bivona 194 Newport Drive, Naples, Florida 34114 239-394-7206, cell: 860-778-3474 $1,300.00 May 2, 2006 - May 1, 2009 . .,.-. -".".-----..,.".--'..". . .. - Agenda Item No. 1609 March 9, 2010 Page 25 of 38 EXHIBIT C Page 2 of 3 Name: Address: Telephone : Prepaid Annual Rent: Term: John Javor 25054 Peacock Lane, No. 202, Naples, Florida 34114 239-331-7476 $1500.00 November 1, 2006 - November 1, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: John J. Robison 10425 SW 52'" Terrace, Miami, Florida 33165 306-279-3669, cell: 766-236-7166 $1,500.00 September 10, 2006 - September 9, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Martin McAlpine Sunrise Cay, Bldg. 237, No. 102, Naples, Florida 239-394-6086, cell: 763-682-5367/612-720-7979 $1,200.00 March 5, 2006 - March 4, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Ed Gubanich 4100 Daglia Street, Denver, Colorado 60216 303-377-5166 $1,37500 July 1, 2006 - June 30, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Martin P Hussey 4915 Rattlesnake Hammock Road, No. 102, Naples, Florida 34113 $1,500.00 March 24, 2006 - March 23, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Robert Streck 10 Homestead Lane, East Hamplon, New York 11937 239-417-0666, cell: 631-324-5742 $1,37500 May 2, 2006 - May 1, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Steven Wilkerson 954-926-0406, cell: 954-850-4072 $1,50000 February 19, 2006 - February 19, 2009 Name: Address: Telephone. Prepaid Annual Rent: Term: Ted Townsend 117 Newport Drive, Naples, Florida 34114 $1,475,00 May 16, 2008 - May 15, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Victor G. Santamarina 2330 Queens Way. Naples. Florida 34112 239-530-1705, cell. 239-272-9466 $1.375.00 April 12, 2006 - April 11 , 2009 Name: Address: William B. Ansley 276 Newport Drive, No. 201, Naples, Florida 34114 720 Carson Valley, Duncansville, Pennsylvania 16635 614-695-9617, cell. 814-932-9817 $1,37500 April 1. 2008 - April 1 , 2009 Telephone: Prepaid Annual Rent: Term: - "-,.- -----' Agenda Item No 1609 March 9, 2010 Page 26 of 38 EXHIBIT C Page 3 of 3 Name: Address: Telephone: Prepaid Annual Rent: Term: William D. Nelson P.O. Box 217, Stone Lake, Wisconsin 54876 715-579-1100 $1,200.00 May 23, 200B - May 23, 2009 Name: Address: Telephone: Prepaid Annual Rent: Term: Mike Trepanier 14690 SW 156~ Avenue, Miami, Florida 33196 305-80:>-0359 $1,500.00 June 28, 2008 - June 27, 2009 ..,-"~ ".,--,.-.....-. ',.-<- , ,.,- --..--.- EXHIBIT [) Page---L-of 6' Agenda Item No. 1609 March 9, 2010 Page 27 of 38 Lease # LEASE AGREEMENT THIS LEASE AGREEMENT entered into this day of December, 2008, between The Islands Marina, LLC and Port of the Island Properties, LtC, whose mailing address is 2614 Tamiami Trail North, Suite 615, Naples, Florida 34103. hereinafter referred to as "LESSEE," and COLLIER COUNTY, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112, hereinafter referred to as "LESSOR." WITNESSETH In consideration of the mutual covenants contained herein, and other valuable consideration, the parties agree as follows: ARTICLE I. Demised Premises LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR Suites # 1 and #2 located at 525 Newport Drive, Naples, Florida 34114, which is further described in Exhibit "A," and which is attached hereto and made a part of this Lease, hereinafter called the "Demised Premises," situated ih the County of Collier and the State of Florida, for the sole purpose of operating a marina sales and property management office. ARTICLE 2. Term of Lease LESSEE shall have and hold the Demised Premises for a term of nine (9) years, commencing on January 1,2009 and ending nine (9) years from that date. LESSOR reserves the right to terminate this Lease, upon material default by Lessee, by providing LESSEE with sixty (60) days written notice to the address set forth in Article 14 of this Lease. Said notice shall be effective upon placement of the notice in an official depository of the United States Post Office, Registered or Certified Mail, Postage Prepaid. ARTICLE J. Rent LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the sum of One Dollar and 00/100 Cents ($1.00) per annum. The rent for the entire lease tenn shall be paid in full thirty (30) days following the ex.ecution of this Lease by LESSOR. ARTICLE 4. Other Exoenses and Charges LESSEE shall pay all costs associated with telephone and any communications service as well as janitorial services rendered at the Demised Premises. LESSOR shall have no obligation to provide any of the aforementioned services to the Demised Premises. LESSEE shall pay a monthly fee of Ninety Dollars ($90.00) to LESSOR at the address set forth in this Lease, for electrical service. ARTICLE 5. Modifications to Demised Premises Prior to making any changes, alterations, additions or improvements to the Demised Premises, LESSEE will provide to LESSOR all proposals and plans for alterations, improvements, changes or additions to the Demised Premises for LESSOR'S written approval, specifying in writing the nature and extent of the desired alteration, improvement, change, or addition, along with the contemplated starting and completion time for such project. LESSOR or its designee will then have sixty (60) days within which to approve or deny in writing said request for changes, improvements, alterations or additions, LESSOR shall not unreasonably withhold its consent to required or appropriate alterations, improvements, changes or additions proposed by LESSEE. If after sixty (60) days there has been no response from LESSOR or its designee to said proposals or plans, then such silence shall be deemed as a denial to such request to LESSEE. LESSEE covenants and agrees m connection with any maintenance, repair work, erection, construction, improvement, addition or alteration of any authorized modifications, additions or improvements to the Demised Premises, to observe and comply with all then and future applicable laws, _. EXHIBIT D Page.;I. of 6" Agenda Item No. 1609 March 9, 2010 Page 28 of 38 - ordinances, rules, regulations, and requirements of the United States of America, State of Florida, County of Collier, and any and all governmental agencies. LESSEE may install signage on the exterior of the Demised Premises, provided that such signage is consistent with the style and quality of existing signage and accords with applicable laws and regulations. All alterations, improvements and additions to said Demised Premises shall at once, when made or installed, be deemed as attached to the freehold and to have become property of LESSOR. Prior to the termination of this Lease or any renewal term the<reof, or within thirty (30) days thereafter, if LESSOR so directs. LESSEE shall promptly remove the additions, improvements, alterations, fixtures and installations which were placed in, on, or upon the Demised Premises by LESSEE, and repair any' damage occasioned to the Demised Premises by such removal; and in default thereof, LESSOR may complete said removals and repairs at LESSEE'S expense. LESSEE covenants and agrees not to use, occupy, suffer or pennit said Demised Premises or any part thereof to be used or occupied for any purpose contrary to law or the rules or regulations of any public authority. ARTICLE 6. Access to Demi$ed rremises LESSOR, its duly authorized agents, representatives and employees, shall have the right after reasonable notice to LESSEE, to enter into and upon the Demised Premises or any part thereof at all reasonable hours for the purpose of examining the same and making repairs or providing services therein, and for the purposes of inspection for compliance with the provisions of this Lease Agreement. ARTICLE 7. Assignment and Subletting LESSEE covenants and agrees not to sublet any part of the Demised Premlses, or to permit any other persons to occupy same without the written consent of LESSOR. LESSEE may assign its rights hereunder with the prior consent of LESSOR, which consent shall not be unreasonably conditioned, withheld, or delayed. Any such assignment or subletting, even with the consent of LESSOR, shall not relieve LESSEE from liability for payment of rent or other sums herein provided or from the obligation to keep and be bound by the tenns, conditions and covenants of this Lease. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or to be consent to the assignment of this Lease or subletting of the Demised Premises. ARTICLE 8. Indemnity: LESSEE, in consideration ofTen Dollars ($10.00), the receipt and sufficiency of which is hereby acknowledged, shall indemnify, defend and hold harmless LESSOR, its agents and employees from and against any and all liability (statutory or otherwise), damages, claims, suits, demands, judgments, costs, interest and expenses (including, but not limited to, attorneys' fees and disbursements both at trail and appellate levels) arising, directly or indirectly, from any injury to, or death of, any person or persons or damage to property (including loss of use thereof) related to (A) LESSEE'S use of the Demised Premises. (B) any work or thing whatsoever done, or any conditions created (other than by LESSOR, its employees, agents or contractors) by or on behalf of LESSEE in or about the Demised Premises, (C) any conditions of the Demisc:d Premises due to or resulting from any default by LESSEE in the performance of LESSEE'S obligations under this Lease, or (0) any act, omission or negligence of LESSEE or its agents, contractors, employees, subtenants, licensee or invitees. In case any action or proceeding is brought against LESSOR by reasons of anyone or more thereof, LESSEE shall pay all costs, attorneys' fees, expenses and liabilities resulting therefrom and shall defend such action or proceeding if LESSOR shall so request, at LESSEE'S expense, by counsel reasonably satisfactory to LESSOR. The LESSOR shall not be liable for any injury or damage to person or property caused by the elements or by other persons in the Demised Premises, or from the street or sub~surface, or from any other place, or for any interference caused by operations by or for a governmental authority in construction of any public or quasi-public works. The LESSOR shall not be liable for any damages to or loss of, including loss due to petty theft, any property, occurring on the Demised Premises or any part thereof, and the LESSEE agrees to hold the LESSOR hannless from any claims for damages, except where such damage or injury is the result of the gross negligence or willful misconduct of the LESSOR or its employees. 2 --.- .. ~---"--'-._~ EXHIBIT {) Page .7 of r Agenda Item No. 1609 March 9, 2010 Page 29 of 38 ARTICLE 9.lMurance LESSEE shall provide and maintain general liability and property liability insurance policy(ies) pursuant to the provision of the Florida Insurance Risk Management Trust Fund and pursuant to the provisions of Section 768.28, Florida Statutes, during the tenn of this Agreement. In addition, LESSEE shall provide and maintain Worker's Compensation Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's Liability with a minimum limit of One Hundred Thousand Dollars and NallOa Cents ($]00,000.00) each accident. Evidence of such insurance shall be provided to the Collier County Risk Management Depanment, 3301 East Tamiami Trail, Administration Building. Naples, Florida. 34112, for approval prior to the commencement of this Lease Agreement; and shall include a provision requiring thirty (30) days prior written notice to Collier County c/o County Risk Management Department in the event of cancellation or changes in policy(ies) coverage. The LESSEE acknowledges and agrees that no changes or cancellations to the insurance coverage will occur without thirty (30) days prior written notice to LESSOR. LESSEE shall ensure that LESSEE'S insurance provider will be responsible for notifying the LESSOR directly of any changes related to insurance coverage. LESSEE shall also ensure that the insurance coverage provided in accordance with this agreement shall require that the company or companies writing such insurance poHcy(ies) shall provide to LESSOR written notice of cancellation thirty (30) days prior to the proposed cancellation. LESSOR reserves the right to reasonably amend the insurance requirements by issuance of notice in writing to LESSEE, whereupon receipt of such notice Lessee shall have thirty (30) days in which to obtain such additional insurance. ARTICLE 10. Maintenance LESSEE shall keep the Demised Premises clean at all times at its sole cost and expense. SEE Failure of LESSEE to comply with any provision or covenant of this Lease shall constitute a default and LESSOR may, at its option, terminate this Lease after providing written notice to LESSEE, as specified in Article 2 of this Lease, unless the default be cured within the sixty (60) day notice period (or such additional time as is reasonably required to correcl such default). ARTICLE 12. Default by LESSOR LESSOR shall in no event be charged with default in the performance of any of its obligations hereunder unless and until LESSOR shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct such default) after notice lo LESSOR by LESSEE properly specifying wherein LESSOR has failed to perform any such obligations. ARTICLE 13. Notices Any notice which LESSOR or LESSEE may he required to give to the other party shaU be in writing to the other party at the following addresses: LESSOR: LESSEE: Board of County Commissioners cia Real Property Management Building 'W' 3301 East Tamiami Trail Naples, Florida 34] 12 James and Christopher Shucart The Islands Marina. LLC and Port of the Island Properties, LLC 2614 Tamiami Trail North Suite 615 Naples, Florida 34103 cc; Office of the County Attorney ARTICLE 14. Surrender of Premises LESSEE shall deliver up and surrender to LESSOR possession of the Demised Premises at the termination of this Lease, or its earlier termination as herein provided, broom clean and in as good condition and repair as the same shall be at the commencement of the term of this Lease or may have J ._. EXHIBIT -L Page --!:J.-Af .4'" Agenda Item No. 1609 March 9, 2010 Page 30 of 38 been put by LESSOR or LESSEE during the continuance thereof, ordinary wear and tear and damage by fire or the elements beyond LESSEE'S control excepted. ARTICLE 15, General Provisions LESSEE expressly agrees for itself, its successor and assigns, to refrain from any use of the Demised Premises which would interfere with or adversely affect the operation or maintenance of LESSOR'S standard operations where other operations share common facilities. (a) Rights not specifically granted the LESSEE by this Lease are hereby reserved to the LESSOR. (b) LESSEE agrees to pay all sales tax imposed on the rental of the Demised Premises where applicable under law. (c) LESSEE agrees to pay all intangible personal property taxes that may be imposed due to the creation, by this Lease, of a leasehold interest in the Demised Premises or LESSEE'S possession of said leasehold interest in the Demised Premises. ARTICLE 16. Environmental Concerns LESSEE represents, warrants and agrees to indemnify, reimburse, defend and hold harmless LESSOR, from and against all costs (including attorneys fees) asserted against, imposed on or.incurred by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state, local or common law relating to pollution or protection of the environment. ARTICLE 17. Radon Gas In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the following: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department. ARTICLE 18. Extent of Liens All persons to whom these presents may come are put upon notice of the fact that the interest of the LESSOR in the Demised Premises shall not be subject to liens for improvements made by the LESSEE, and liens for improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on the interest of the LESSOR in the Demised Premises or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes. ARTICLE 19. effective Date This Lease snail become effective on January t, 2009. ARTICLE 20. Governint: Law This Lease shall be governed and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals. AS TO THE LESSOR: DATED: ATTEST: DWIGHT E. BROCK. Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA . Deputy Clerk BY: TOM HENNING. Chairman / 4 EXHIBIT [) Page 5 of~ Agenda Item No. 1609 March 9, 2010 Page 31 of 38 AS TO LESSEE: The Islands Marina, LLC and Port of the Island Properties, LLC DATED: BY: JAMES SHUCART WITNESS (signature) (print name) WITNESS (signature) (print name) WITNESS (signature) BY: CHRISTOPHER SHUCART (print name) WITNESS (signature) (print name) Approved as to [ann and legal sufficiency: Jennifer A. Belpedio, Assistant County Attorney 5 Agenda Item No. 1609 March 9, 2010 Page 32 of 38 ESCROW AGREEMENT THIS AGREEMENT made on this .I!l7TI day of December, 2008 by and between. THE ISLANDS MARINA, LLC., Florida limited liability company AND PORT OF THE ISLANDS PROPERTIES, LLC, a Florida limited liability company, (the Seller), whose address is 2614 Tamiami Trail North. Suite 615, Naples, Florida 34103, and, COLLIER COUNTY, apolitical subdivision of the State of Florida, (the Purchaser), whose address is 3301 East Tamiami Trail, Naples, FL 34112 and STEWART TITLE COMPANY, (the Escrow Agent), whose address is 3936 Tamiami Trail North, Suite A, Naples, Florida 34103; WITNESSETH: WHEREAS, the Purchaser and Seller entered into a purchase contract for the sale of real property located at (SEE ATTACHED EXHIBIT "A"), and WHEREAS, both Purchaser and Seller are desirous of having STEW ART TITLE COMPANY act as Escrowee. in accordance with the teons and conditions of this agreement; NOW, THEREFORE, Escrow Agent, Purchaser and Seller agree as follows: t. That the transfer oftide shall be completed and the transaction closed. 2. That escrow agent is authorized to hold the sum of $200.000.00 m an interest bearing account. 3.. That the monies held in escrow shall be held and released in accordance with the terms of the contract as specifically set out in paragraphs 16.01. ]6.02. 16.03 and 16.04 (Copy attached as Exhibit "B"): 4. Escrow Agent may act in reliance upon any writing Of instrument or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertions contained in any such 'Writing or instruments; and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instrument delivered to it, nor as to the identity, authority, or rights of any person executing the same. The duties of the Escrow Agent shall be limited to the safekeeping of the deposits and disbursing the same in accordance herewith. Escrow Agent undertakes to perfonn only such duties as are expressly set forth herein, and implied duties or obligations shall not be read into this agreement. Upon the Escrow Agent disbursing the deposits in accordance with the provisions hereof, the escrow account or accounts shall terminate and the Escrow Agent shall disburse and shall thereafter be released from any liabilities hereunder in cOlUlection therewith. Seller does hereby transfer, convey, give, deposit with, pledge and deliver under the absolute control of Escrow Agent said sum. Ovmership of this money shall vest in Escrow Agent for such period of time as is necessary to satisfy said requirement(s) whether said requirements are satisfied by Seller or Purchaser as provided in this agreement. '.. -_..~ ,-.--""''- ~"--" -- .._-~-~" Agenda Item No. 1609 March 9, 2010 Page 33 of 38 5. Escrow Agent shall be protected with respect to any action taken or suffered by it hereunder in good faith. Escrow Agent shall not otherwise be liable for any mistakes of fact or errors of judgment or for any acts or omissions of any kind unless caused by its misconduct or gross negligence, and Purchaser and Seller agree to indemnify and hold Escrow Agent harmless of any claims, demands, causes of action, liabilities, damages and judgments, including the costs of defending any action against either of them together with any reasonable attorney's fees incurred in connection therewith, with respect to Escrow Agent's undertaking pursuant to the terms and conditions of the Escrow Agreement, unless such act or omission is a result of misconduct or gross negligence of Escrow Agent. 6. In the event of a disagreement with respect to the interpretations of this agreement, or with respect to the rights or obligations, or the propriety of any action contemplated by Escrow Agent, Escrow Agent may, in its sole discretion, file appropriate legal action to resolve such disagreement. Escrow Agent shall be indemnified by Purchaser and Seller for all of Escrow Agent's costs, including reasonable attorney's fees, in connection with any such legal action. 7. Escrow Agent may resign at any time upon the giving o[thirty (30) days notice to Purchaser and Seller of Escrow Agent's intent to so resign. 8. All notice and communications herein between the Escrow Agent, Purchaser and Scller shall be in writing and shall be deemed to be duly given if sent by mail, to the respective addresses set forth above. 9. The rights created by this Escrow Agreement shall inure to the benefit of and the obligations created hereby shall be binding upon, the successors and assigns of Escrow Agent and all parties to this agreement. 10. This agreement shall be construed and enforced according to the laws of the State of Florida, IN WITNESS WHEREOF, the parties have executed this Escrow Agreement on the day and year first above wri tten. -"""'",,- ""'- '" ATTEst: "'-. DWiGHT E. BROC~ Clerk ,--' ..,. " HOARD OF COUNTY COMMISSIONERS COLLIER COUNTY. FLORIDA ",..-' ..... , , ' . . , . .., to o-.~' .1gn.tllri"'0Il~","" . .,..,.....,c".,.. Agenda Item No. 1609 March 9, 2010 Page 34 of 38 THE ISLANDS MARINA, LLC, a Florida limited liability company s Shucart, Manager (Signature) -Htf"'" ?-tl"--; e ,<- . (Printed Name) WITNESSES: BY: (\. . r: ~" -\ Christopher Shucart, Manager --', PORT OF THE ISLANDS PROPERTIES, LLC. a Florida limited liability company (Printed Name) Shucart, Manager "" "^"'M.,_._.~.___....~,_"._ _M,"~~~._.' _ ,....'_'4._.~.~'___." -~_._""--,._., ---.<,='" . ..---.-'''' Agenda Item No. 1609 March 9, 2010 Page 35 of 38 WITNESSES: '\tRi/, - - (Signaljlre) tillN$ ~tY;,e~ (Printed Name a - {" . C-' BY: ~~. :t Christopher Shucart. Manager ~ . ~"--- Witness Approved as to fonn and legal sufficien . . - - ~ Jennifer A. Belpeclio Assistant County Atto ***..*****NOTICB TO ESCROW participants You have entered into an Escrow Agreement whereby certain monies are to be held by Stewart Title Company under the terms of the Escrow Agreement. It is your responsibility to assure that the terms of the Escrow Agreement are met. Stewart Title company has no duty to monitor the performance of any parties to the Escrow Agreement. Upon proper notification by the parties to the agreement, Stewart Title Company will disburse the funds that it holds in accordance with the agreement. The undersigned escrow participants acknowledge receipt of a copy of this Notice and a copy of the Escrow Agreement. Escrow Participants: . .~ 48613!BH (escrow agreement (short) ,- ~o ~. . . 0 5~ X'''z8~'"' . -, 1~~~fi)~ 00 >~ fi Bm~ -" '. -. _.~- ~g .~ S;z c !~ c;lGl . ~ . 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UNDERiJR.2IIND STORAGE TANK RESP9~ 16.01 AS loon ae: practicable foUowing Closing, and prior to December 31, 2009, the P"rchaser .hell, 81 Its own cost and expen.e, estimated to be In the amount of Two Hundred Tho"uOO and no/1oo DoIlarll ($20Q,OOO), excallate and replace Ihs exilling single.walled Underground Storage Tank In accordance with all Florida laws and regUI8tlOllB. 16.02. Al tt1e time of said excavation and replacement, should it De cJe1ermined that no remedistlon of soil and ground waler contamination relu~jnlil from the sKisling Underground Storage Tank 18 requirBd, ell fundi held in escrow pursuant to PaT81graph 3.03 hereof, t.therwith accrued interest, shall be paid over 10 Seller. 16.03. Al the time of &aid excavation and replaC&ment, should it be determined thai remedlaticn of ,oil and liIrt)Und water contarmnation resulUng from the existing Underground Storage Tank 18 necessary or required under Florida laws and regulations, Seiter ahall reimburse Purchaser for any end all costs .IIoclaled 'Mth such remediation, inducting periodic monitoring, in an 8mount not to exceed Two Hundred Thousand and n0/100 DolJa~ ($200,000) plus accrued int8f'88t 16.04. Funds held in escrow pursuant to Paragraph 3.03 hereof, together with l!lccnJed interest, shall be used: to satisfy Seller's obnli1li1lions ooder Paragraph 16.03. flw expensea are incurred under Paragraph 16.03, paymants to tha Purchaaer .hllll be made from the funds 10 held. At such time Ihat Purchaser obCalnB wrttten approval from the Florid. Department of Environmental Protec:lion (FDEP) that remediation complfes with Florida laws and regulations, Bnd that no further monllortng activities arc ~quired, any remaining funds held, togelher with accrued interest. shall be paid over 10 Ihe Seier, 16,05. Following cisbul"-1emllnt purlUIlt1C to PBr89raplls 16.02 or '6,04 hereof, Seller and Purcha$et shall have no further obligation to one another ~sultlng from the provisions of this Section xvr. 1606, The terms and proViSion, of this Section XVI constitute agreed-upon instructions to tho Escrow Agent for disbursement of the oscrowed fundi and ,halll5urvive closing. XVII. 17 _01. This Agreement and the Exhibit, Jttached hereto conteln the entire agreement between the parties, and no promise, repretlentalion, warrllnty or covenant not inclvded in this Agreement or any such referenced agreements has been or is being r~lied upon by eHher pal1y. No modiflcallon or amendment of this-Agreement shell be of any force or effect unlells made in wrilin!j1 and executccf and dated by both Purchaser and Seller. IN WITNESS WHEREOF, Ihe parties hereto set forth hands and seals as of the date first above written. Date Pro;ectlAcQl.Ialtloo ApPftwed by BCe /3. /111 / ~f:" BOARD OF COUNTY COMMISSIONERS COLLIER COUNlY, FLOR A - ,-, -" , "'...:. < ' . ... .,.,.1 ~"llr,. . (j,' ~' - "" ' .-., "A ,.' ~ . ~ b ".' . ---..--.--.-.... ~,,_. ,-_._-, --"-'-"-"~"".~~---_.~'~-"-"- ......~-"..""". .. . _"'..".._.__"__..,._,,,....>~~",,....O'. _~M,..."~~"..~.._h~. ,.,_