Novation Assignment of Lease Trust for Public Lands NOVATION ASSIGNMENT OF LEASE AGREEMENT
This Assignment is entered into this 19th day of December, 2005 by and
between The Trust for Public Land, a California not-for-profit corporation, having a
principal place of business at 1595 Bay Street SE, Suite # 3, St. Petersburg, Florida
33701 ("Assignor" and "Lessor") and Collier County, a political subdivision of the State
of Florida, having an address of 3301 Tamiami Trail East, Naples, Florida 34112
("Assignee" and the "County").
PRELIMINARY STATEMENT
Reference is made to the following facts that constitute the background to this
Assignment:
WHEREAS, Assignor entered into that certain Lease Agreement signed on even
date herewith (the "Lease"), with Naples Zoo, Inc., a Florida not-for-profit corporation
("Lessee") with respect to certain property consisting of 43.52 acres, more or less, and
located in Collier County, Florida, as more fully described in the Lease (the "Demised
Premises");
WHEREAS, pursuant to Article 13 of the Lease, Assignor may assign the Lease
to the County; and
WHEREAS, Assignor wishes to assign the Lease to Assignee and Assignee
wishes to assume the Lease on the terms and conditions set forth herein.
I
NOW THEREFORE, in consideration of the Lease and this Assignment, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1 . Assignor hereby assigns to Assignee all of its rights under the Lease, a
complete copy of which, now in full force and effect, is attached hereto as Exhibit A.
2. This Assignment is made such that Assignee is subject to all of the terms
and conditions of said Lease, none of which are waived by Lessee.
3. It is understood that this Assignment is an assignment of all of the rights
that Assignor may now or at any time hereafter have in the Lease or against Lessee
arising out of or under the Lease.
4. Assignee assumes all of the obligations of Assignor under the Lease,
which obligations Assignee covenants and agrees with Lessee to perform and observe
as if the Lease had been between Assignee, as lessor, and Lessee. This Assignment is
a complete novation; therefore from and after the date of this Assignment Assignor is
released from all its duties, responsibilities, obligations and/or liability in connection with
this Lease.
5. Upon execution and delivery of this Assignment by Assignor and
Assignee, a copy of the executed Assignment will be provided to Lessee and request
that all notices referred to in the Lease to be sent to Lessor will be sent to County at the
following addresses:
If to Assignor: Michael Dowling, Senior Property Management Specialist
Real Estate Services Department
Administration Building
3301 Tamiami Trail East
Naples, Florida 34112
(239) 774-8743 Telephone
(239) 774-8876 Facsimile
With a copy to: Thomas Palmer
Assistant County Attorney
Office of the County Attorney
Administration Building
3301 Tamiami Trail East
Naples, Florida 34112
(239) 774-8400 Telephone
(239) 774-0225 Facsimile
If to Lessee: Naples Zoo, Inc.
1590 Goodlette-Frank Road
Naples, Florida 34102
Attn: David Tetzlaff, Director
Telephone: (239) 262-5409 x. 107
Fax No.: (239) 262-6866
With a copy to: Law Offices of Scott M. Ketchum, P.A.
Goodlette Professional Center
692 Goodlette Road North
Naples, Florida 34102
Telephone: (239) 403-0148
Fax No.: (239) 403-0965
6. Assignor represents, to the best of its knowledge that no defaults exist
under the Lease.
7. Provided this Assignment is executed and delivered within 30 days after
3
Assignor takes title to the Demised Premises, any rent payment received by Assignor
will be paid over to Assignee; otherwise the rent payments will be prorated only for the
month of the Assignment to Assignee, Assignor retaining any rents paid in months prior
to the month of the Assignment.
Executed as a sealed instrument as of the date first above written.
Dated Project/Acquisition Approved by:
BCC: ii,2-V 0s /
J7
L J
AS TO ASSIGNEE:
DATED: I a/- a-IOS
ATTEST: BOARD OF COUNTY COMMISSIONERS
t COLLIER COUNTY, FLORIDA
DWIGHT,F:"BRQCK,'Mrk
D P° • ``%
moll-puty Clerk FRED W. COYLE, CHAIR N
c.9 41-4-u 144,44 i . 4 ... . BY:
Attest as - : i '�
$1 gn4tutilkh fr .
Approved as to form and
legal sufficiency: im
VIA. VailiAN" --
Thoma Palmer
Assistant County Attorney
4
AS TO ASSIGNOR:
DATED: /01 - / q - Q�
WITNESSES: THE TRUST FOR PUBLIC LAND
I( // ' _ / - BY: '
ature of first witness)
dillirexe. o LT. elie . i(.)_.
&i v RA
(-R lnted Name of first witness) /-4_-o/e 1 -rA f - (tte c ra 2
Tignaeture of second witness)
' D611/(62 f( TI-
(Printed Name of second witness)
AS TO LESSEE:
Lessee joins in this Assignment
and does hereby acknowledge
the transfer of obligations and
rights from The Trust for Public
Land to/Collier County, Florida
Napl s Zo., pc.
By: ;:�!
Davidre raff, Exec tive P ►-ctor
5
l
0E
LEASE AGREEMENT
rc
THIS LEASE AGREEMENT (this "Lease Agreement") is entered into this /a day of Cetm b�-
2005, between NAPLES ZOO, INC., a Florida non-profit corporation, exempt from taxation under Section
501(c)(3) of the Internal Revenue Code, whose mailing address is 1590 Goodlette-Frank Road, Naples,
Florida 34102, hereinafter referred to as "Naples Zoo, Inc." or "LESSEE", and THE TRUST FOR PUBLIC
LAND, a California non-profit corporation, whose mailing address is 1595 Bay Street SE, Suite #3, St.
Petersburg, Florida 33701, hereinafter referred to as "TPL" or "LESSOR".
WITNES SETH
WHEREAS, Naples Zoo, Inc., is a lessee of certain assets of Jungle Larry's Safariland, Inc., an Ohio
corporation, and operator of the fixtures, furniture, buildings and animals that make up the Caribbean
Gardens, The Zoo in Naples; and
WHEREAS, during its history in Naples, Florida, the Zoo has strived to provide a quality experience for
residents and visitors to the community. It has done this without drawing on public monies for any reason
including seeking accreditation by the American Zoo and Aquarium Association, which it achieved in 2001.
This status places Caribbean Gardens in the top 10% of facilities exhibiting wildlife in the Nation; and
WHEREAS, TPL has acquired the property at the intersection of Goodlette-Frank Road and Golden Gate
Parkway consisting of 166 acres, more or less (the "Total Property"), from CHARLES FLEISCHMANN, III,
as to an undivided 49.61% interest in said land, DORETTE L. FLEISCHMANN VIETS, as to an undivided
25.195% interest in said land and DORETTE L. FLEISCHMANN VIETS, MELANIE FLEISCHMANN
GARNETT and CHARLES FLEISCHMANN, V, as Co-Trustees under Article Seven B of the Last Will and
Testament of Dorette K. Fleischmann, deceased, dated September 10, 1992, as to an undivided 25.195%
interest in said land (the Total Property is more particularly described on Exhibit "A" attached hereto and
made a part hereof); and
WHEREAS, TPL intends to convey portions of the Total Property to Collier County, a political subdivision
of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112; and
WHEREAS, the voters of Collier County, in a November 2004 referendum, voted overwhelmingly to
increase the ad valorem tax in order to raise $40 million in funding to acquire portions of the Total Property
and to preserve the Caribbean Gardens,The Zoo in Naples, for future generations; and
WHEREAS, TPL is entering into this Lease with Naples Zoo, Inc. in order to further the voters'objective and
purpose to preserve the gardens and the zoo; and
WHEREAS, the County has agreed to accept an assignment of this Lease Agreement from TPL at the time
the County is to acquire portions of the Total Property from TPL; and
WHEREAS, Collier County has determined that it is in the best interest of the citizens of Collier County for
this Lease Agreement to be assumed by the County and for the Naples Zoo, Inc. to continue to grow and
develop for the enjoyment by, the education of, and the enhancement of the quality of life and the
entertainment of the general public of Collier County and the State of Florida.
THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1. Demised Premises and Permitted Uses
a. LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR a 43.52 acre +/-
portion of the Total Property(including the roadway islands with signage) (the "Zoo and Gardens Parcel"), as
more particularly described in Exhibit "A-1" which is attached hereto and made a part of this Lease,
hereinafter also called the "Demised Premises".
0
o
b. The Demised Premises shall be used and occupied as an ac tive operation of the Caribbean Gans
and the Zoo in Naples (the "Zoo and Gardens") open to the general public including botanical collection,
animal and nature exhibits, as presently constituted and operated on the Demised Premises, in a manner
substantially equal in quality or better than that established by Jungle Larry's Safari land, Inc. ("Jungle
Larry's"). LESSEE shall promote the continuing development of the Zoo and Gardens as a facility displaying
wild animal species in appropriate settings for educational, recreational and wildlife conservation dedicated
to the enhancement of the quality of life with the Collier County area. LESSEE shall utilize the Demised
Premises for all reasonable purposes attendant to the primary purpose set forth above, including, without
limitation, certain banquet, restaurant, concessions and food and beverage activities, as well as retail
activities related to the purposes set forth herein. LESSEE, at its expense, shall maintain the facility in a
quality at least comparable to that of the operation of Jungle Larry's on the date of this Agreement and may
include expansion of the operation by providing new or other wild animals, nature exhibits, rides, food
vendors, walking trails, educational demonstrations and entertainment. If additional educational, cultural and
conservation programs are established by LESSEE, they shall be conducted on the Demised Premises in a
manner intended to benefit the general public and the property and to maintain the Zoo and Gardens in a
first--class and accredited condition. It is understood and agreed that the buildings, private utilities (such as
wells and septic systems and the pipes and lines associated therewith), signage and all other structures and
improvements on the Zoo and Gardens Parcel are the responsibility of LESSEE and, whether classified as
fixtures or as non-fixture improvements to the Demised Premises, shall become the property of LESSOR at
the expiration or earlier termination of this Lease, as more particularly described in Article 9(d) below.
c. All operations on the Demised Premises will be conducted in an orderly and proper manner
considering the nature of Zoo operations so as not to unreasonably annoy, disturb, endanger or be offensive
to adjoining and/or near-by property owners. LESSEE will not do or permit to be done anything that may
result in the creation, commission or maintenance of a nuisance, unsanitary condition, waste and/or injury on
or to the Demised Premises. LESSEE will not do or permit to be done anything that materially adversely
affects the effectiveness or accessibility of the drainage system, sewerage system, and/or fire hydrants, if any,
or any other utility facilities. LESSEE will collect all garbage, debris and waste material, whether solid or
liquid, arising out of the improvement, maintenance, occupancy or use of the Demised Premises, shall store
same pending disposal in covered or other rigidly and sturdily constructed receptacles and dispose of same
off the Demised Premises at regular intervals. Notwithstanding the foregoing, animal wastes may be
composted on the Demised Premises for uses in the Gardens. LESSEE will provide and use such escape-
proof enclosures in conformance with Zoo Industry Standards (as hereinafter defined), appropriate for the
protection of patrons and visitors to the Zoo or Gardens. LESSEE shall use best efforts at all times to keep
all wild animals within the confines of the Demised Premises. Excluding flood, fire, hurricanes and other
forces of nature, beyond LESSEE's control, LESSEE shall exercise care to prevent damage to the botanical
collections and rare natural foliage and plantings on the Demised Premises; shall exercise care to prevent the
water produced or used upon or flowing onto the Demised Premises from reaching levels of salinity which
would in any way damage or impair any planting or foliage included in the botanical collection, as now or
hereafter constituted; shall keep the Demised Premises adequately fenced, including against predator(s),
trespasser(s) and vandal(s) and all other unauthorized entries.
d. Under appropriate arrangements with the City of Naples, Florida, a Florida Municipal Corporation,
LESSEE shall continue, through the Lease Term, as it may be extended, to maintain, in the same manner as
heretofore maintained, the current entrance sign (or its replacement), grass and other planting within the
median island area of Seventeenth Street North, also known as Fleischmann Boulevard. Said median island
area (approx. 0.02 acres+/-) is described in Exhibit A as a part of the Demised Premises. LESSEE shall have
reasonable access to all electrical meters, electrical lines and water lines located on the adjacent property
currently known as the Naples Preserve that supply the sign and its landscaping. LESSEE agrees LESSOR
may erect and maintain a sign or other appropriate marker in a prominent location on the Demised Premises,
at a location agreeable to LESSEE and LESSOR, visible from a public road, bearing information indicating
the Demised Premises is protected by LESSOR (and its successor). LESSOR shall determine the wording of
the sign or marker. LESSOR shall be responsible for the costs of erecting and maintaining such sign or
marker. If the sign is not properly maintained in good condition, LESSEE will notify LESSOR. If the
condition is not corrected within sixty (60) days after notice, LESSEE may remove the sign.
e. LESSEE understands and agrees that the portion of the Demised Premises described on the attached
Exhibit "A-2" shall be used by LESSEE for over-flow parking of its guests and invitees, and, with twelve
(12) of the spaces being made available for parking by the general public in order to access the Gordon River
over and through other adjacent lands of LESSOR. LESSEE shall maintain the property described on
Exhibit "A-2" in the same manner and to the same extent as described herein for the Demised Premises. In
2
i
the future, if LESSOR requires improvements to this parking area, which improvements shall be lim edE
paving or other permeable surface (such as crushed shells or marl), LESSOR and LESSEE shall investigate
the relative costs of the improvements and future costs of maintenance. LESSEE agrees to maintain the
improved parking surface and to share 50:50 with LESSOR in the costs of such improvements and
maintenance.
ARTICLE 2. Term of Lease
a. Term. Unless otherwise terminated pursuant to the provisions hereof, LESSEE shall have and hold
the Demised Premise for a term of Ten (10) years, commencing on December 19, 2005 ("Lease Term
Commencement Date") and ending December 18, 2015, unless earlier terminated pursuant to the terms
hereof(the "Lease Term").
b. Renewal. LESSEE is granted the option, provided it is not then in default of any of the provisions
of this Lease, to renew same for four (4) separate, additional and sequential terms of ten (10) years, under the
same terms and conditions, as provided herein, except as to the base rental amount, which is to be adjusted
periodically as provided herein, by delivering written notice of LESSEE'S unconditional intention to renew to
the LESSOR at least two (2) years prior to the expiration of the then existing Lease Term or renewal period.
Said notice shall be effective upon actual receipt by the LESSOR. Failure of LESSEE to provide such
written notice shall be deemed conclusive evidence of LESSEE's waiver of its option to renew. Each 10-
year extension shall be a separate decision (i.e. the second option to extend does not take effect until the end
of the first renewal period.) Notwithstanding the foregoing, each such renewal term must first be approved
by a majority vote of the Collier County Board of County Commissioners prior to each respective renewal
taking place.
c. LESSEE's Right to Terminate. Upon two (2) year's prior written notice to LESSOR, given during
the Lease Term or any extension thereof then in effect, LESSEE may, without cause, elect to terminate this
Lease Agreement. If LESSEE so elects, the provisions of ARTICLE 18 shall govern.
d. LESSOR's Right to Terminate. Upon two (2) year's prior written notice to LESSEE, given during
the Lease Term or any extension thereof then in effect, LESSOR may, without cause, elect to terminate this
Lease Agreement. If LESSOR so elects, LESSOR agrees to pay to LESSEE, at the time of termination, the
unamortized cost of any improvement made by LESSEE to the Demised Premises approved by LESSOR in
accordance with ARTICLE 9 hereof based on a ten year amortization period. LESSEE agrees that the
payment of such unamortized costs of such improvements will be based on adequate documentation of the
costs of such improvements and shall not include the value of donated materials and/or labor. No
improvements will be made during the two-year Disposition Period (as herein defined) after notice is given.
ARTICLE 3. Rent
LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the following sums:
a. Base Rent of Two Hundred Thirty-five Thousand Five Hundred ($235,500.00) Dollars ("Base Rent") per
annum in equal monthly installments of Nineteen Thousand Six Hundred Twenty-Five Dollars and 00/100
Cents ($19,625.00) each, all in advance on the first day of every calendar month during the term hereof. If
the terms of this Lease commence or end on a day other than the first day of the month, LESSEE shall pay
base rent equal to one thirtieth (1/30th) of the monthly base rent multiplied by the number of rental days of
such fractional month.
b. LESSEE will also be responsible for the payment of additional rent as provided for in ARTICLE 4 of this
Lease.
c. Having taken into consideration those benefits provided by LESSEE, as services in lieu of rent, as
discussed in ARTICLE 3 e. below, and to the extent that the following formula would generate rental in
excess of the Base Rent, LESSEE shall pay the excess rental amount to LESSOR:
1. During the Lease Term, as it may be renewed from time to time, LESSEE shall pay to LESSOR the
following percentages of Gross Receipts from Services (as herein defined) performed or rendered and Gross
Receipts from Sales (as herein defined) made by LESSEE on the Demised Premises:
3
i. Six percent (6%) of the first Seven Hundred Fifty Thousand Dollars ($750,000.00) o
su�
gross receipts; and
ii. Seven percent (7%) of the gross receipts in excess of Seven Hundred Fifty Thousand
Dollars ($750,000.00).
As examples of when the Percentage Rent would or would not be paid are as follows:
If the Gross Receipts from Sales or Services (as a total amount) totaled$3,000,000, the following calculation
would be made:
6% of$750,000 = $ 45,000
7% of$2,250,000 =$157,500
Total = $202,500 which is less than the Base Rent of $235,500 so no Percentage Rent is due.
If the Gross Receipts from Sales or Services (as a total amount) totaled $4,000,000, the following calculation
would be made:
6% of$750,000 = $ 45,000
7% of$3,250,000 = $227,500
Total = $272,500 which is $37,000 more than the Base Rent of $235,500 so $37,000 in
Percentage Rent would be due in addition to the Base Rent.
2. "Gross Receipts from Services" shall include all revenue realized by LESSEE from operations
upon the Demised Premises, including but not limited to: parking fees, gate admissions, all in-park charges
(rides, exhibits, shows or other amusements) and/or for other services made available to patrons; also
revenues from radio and/or television shows or programs originating from the Demised Premises; motion
pictures or other photographic items produced on the Demised Premises; catering of parties and similar
activities on the Demised Premises, and fees for rental of area within the Demised Premises for such parties
and any other revenue produced from the Demised Premises other than from Gross Receipts from Sales.
3. "Gross Receipts from Sales" shall include the gross revenue from sales of food, beverages,
souvenirs, and all other merchandise or commodities on or sold from (such as by means of the Internet) the
Demised Premises, whether made or produced thereon or purchased off-site for resale on the Demised
Premises. Such commodities also include the sales through vending machines or by concessionaires (limited
to those amounts actually paid over to LESSEE). Such Gross Receipts from Sales also shall include the sales
of livestock produced by breeding on the Demised Premises but shall be off-set by any portion of such
livestock proceeds that are utilized for the transportation or purchase of other animals and/or livestock within
twelve (12) calendar months of the actual receipt of such income. In no event will the proceeds of the sale of
any livestock or animals which occurs during the Disposition Period (as hereinafter defined in Article 18 be
utilized in the calculation of any rent payment due LESSOR.
4. Gross Receipts from Services and Gross Receipts from Sales shall exclude any refunds or cash
register adjustments made by LESSEE in the normal course of business, and shall exclude sales and/or other
taxes collected by LESSEE from customers or admittees and remitted by LESSEE to the State of Florida.
5. Gross Receipts from Services and Gross Receipts from Sales shall also exclude any revenue derived
by LESSEE, in its capacity as a non-profit corporation, resulting from fund-raising efforts attendant to the
operation of the Zoo and Gardens provided all such fundraised funds are used solely by LESSEE in the
furtherance of the educational, cultural, conservation or public purposes of the Zoo and Gardens such as
capital improvement of facilities, exhibits, animal collections, endowments for the upkeep of such additional
capital improvements; care and feeding of the animals, protection of the botanical collection and preservation
of wildlife habitat, reasonable personnel expenses and administrative costs approved by the LESSEE's Board
of Directors. It is understood by LESSEE that LESSOR or its successor in interest, Collier County, shall
have no obligation to provide funds and/or any in-kind consideration for the expansion, maintenance, repair,
or operation of the Zoo and/or Gardens, or otherwise.
6. Settlements with respect to the percentage rent payments accruing hereunder shall be made one time
annually. Settlements shall be made within twenty-one (21) days following the close of either each Lease
Year (hereinafter, each Lease Year is defined as the "Operating Period".) Settlements shall be supported by
LESSEE's statements of all receipts and revenues for the Operating Period being settled and by copies of the
monthly sales tax reports submitted to the State of Florida. If the percentage rent payment calculated at the
end of each Operating Period exceeds the monthly Base Rent, LESSEE shall remit such difference to
4
10E
LESSOR within ten (10) business days. If the percentage rent payment calculated at the end of each
Operating Period is less than the monthly Base Rent, no payment will be due to LESSOR other than the Base
Rent. LESSOR's accountants shall have full access, at all reasonable times and places in Naples, Florida, to
the books, cash registers and accounts of LESSEE pertaining to the operation of the Demised Premises
(including any fundraising) for the purposes of verifying gross receipts and revenues realized by LESSEE.
All such items shall be maintained and retained by LESSEE on the Demised Premises.
d. LESSOR has the right to review the Base Rent provisions at the end of each five-year period during
the Lease Term and each renewal term thereof. If LESSOR determines that the Base Rent is not keeping
pace with inflation or the applicable consumer price index, and LESSOR determines in its sole but
reasonable discretion that the operation of the Zoo and Gardens is generating sufficiently more revenue than
at the commencement of the five year period then just past, LESSOR may increase the Base Rent by no more
than the total increase in the applicable consumer price index over the previous five year period.
e. It is understood by LESSEE that LESSOR has and will continue, in its determination of Base Rent
or any increase in Base Rent, to take into account the benefits provided by LESSEE to the citizens of Collier
County and the general public, considered by LESSEE and LESSOR as services in lieu of rent. LESSEE has
provided LESSOR with an extensive list of the benefits it has provided to the citizens of Collier County and
the general public. LESSEE shall continue to provide the items listed below (1 through 7, inclusive) during
the Term of this Lease, except to the extent, if any, that LESSOR may from time-to-time agree only by
amendment to this Agreement that the respective benefit can be modified or eliminated. Each such
Amendment shall specifically state that it is amending the respective sub-paragraph(s) of Article THREE,
paragraph (e) of this Agreement. Those benefits must be continued because each is a material consideration
for this Lease. Such benefits, which must meet or exceed the 2005 baseline programs, (unless otherwise
modified by agreement of the parties) are the following:
(1) LESSEE offers a variety of discounts to local residents. These include opportunities throughout the year
such as free admission for children Friday through Monday around school holidays. In addition, the zoo now
offers Collier residents (adults and children) completely free admission at least one Saturday per month
when entering before 11 a.m.
(2) For residents, LESSEE offers a 50% discount on family memberships. The membership includes up to 2
adults and all dependent children living in the same household up to age 21.
(3) LESSEE offers complimentary admission and/or deeply discounted rates to various children's groups,
Collier County school groups, and County and Municipal parks and recreation programs.
(4) LESSEE employs full and part-time employees. Such employees have access to health care benefits paid
in whole or in part by LESSEE. A life insurance policy is provided to employees at no charge. Dental
insurance is also available through a group plan. Benefit programs for employees will be consistent with the
Zoo Industry Standards (as hereinafter defined).
(5) LESSEE provides deeply discounted admissions for school children visiting the zoo. The zoo recently
dedicated a position to group sales and is enhancing its onsite education to better service the growing need
for curriculum-fulfilling field trips.
(6) LESSEE also contributes to the local economy by using many local services for construction, printing,
and technology. In regard to economic impact, over 70% of zoo visitors in March 2005 came from over 150
miles away including all 50 states and 20 foreign countries thus contributing to the local economy by
contributing to overnight stays.
(7) Locally, LESSEE will continue to provide an exhibit for best management practices for Backyard
Wildlife Habitat to illustrate to guests how they can provide elements beneficial to songbirds, butterflies and
other wildlife whether they have a condominium balcony, back lawn, or acres of space.
(8)LESSEE will support local and international conservation. LESSEE will promote sustainable practices to
its guests and sphere of influence. LESSEE will also cooperate with other conservation organizations to
promote like-minded efforts.
f. Base Rent will be abated pro-rata for any days that the Zoo and/or Gardens are not open to the
public for business as a result of Force Majeure, as defined in Article 19 i. below. Provided, however,
5
10
LESSEE agrees, in the event of a Force Majeure, to work diligently to correct such problem and re-open for
business as soon as reasonably possible.
ARTICLE 4. Additional Rent (Other Expenses and Charges)
This is a Triple Net (Net Net Net) Lease. LESSEE shall pay all costs associated with the Demised
Premises including and not limited to, all current and/or future applicable taxes, permits, approvals, licenses
necessary for its operation, trash removal services and any and all utility charges. Utility charges shall
include and not be limited to electricity, light, heat, air conditioning, power, potable water, irrigation water,
sewer and telephone and all other communication services, used, rendered or supplied thereupon or in
connection with the Demised Premises.
ARTICLE 5. Title Matters/Permitted Encumbrances
LESSOR has advised LESSEE that as of the Effective Date of this Lease Agreement, the Demised
Premises are, and as of the Lease Term Commencement Date, the Demised Premises will be, subject to those
matters set forth in Exhibit "B" attached hereto (the "Permitted Encumbrances"). LESSEE will at all times
comply with the Permitted Encumbrances in all activities relating to the Zoo and Gardens. In addition,
LESSEE takes the Demised Premises subject to, and admits notice of, the existence of any and all water
(potable and/or irrigation), wastewater, storm water, sewer, gas, electric and other utility lines, wires and
other facilities or capital improvements, whether recorded or unrecorded, located beneath, upon or above the
Demised Premises, all of which are deemed to be Permitted Encumbrances. The existence of same will not
constitute any breach of covenant on the part of LESSOR, nor will LESSEE be entitled to require the
removal of any thereof. LESSOR reserves the right, for itself or any other owner of such utility lines, wires,
and other facilities and tangible things, at all times to have reasonable access thereto for the purposes of
operation, maintenance, repair, replacement or removal of any thereof; provided, however, that upon
completion of any such work for which access is obtained, LESSOR or such other utility owner shall, at no
cost to LESSEE, restore the affected improvements and/or surface of the land to substantially the condition
in which it or they existed immediately prior to access and work, to the extent that the restoration to such
condition is reasonably practicable. If any such work needs to be completed in the area of animal habitats or
exhibits, the utility owner will be required by LESSEE, prior to entrance, to strictly abide by any instructions
or demands of, and cooperate with, LESSEE with respect to any activity that may disturb the animals.
Otherwise, the parties acknowledge that the terms of any existing easement document will govern the
activities of such utility owner.
ARTICLE 6. Accessibility and Admissions
a. Accessibility. LESSEE will operate the Zoo and Gardens at reasonable hours year round excepting
historical holidays and forced closures caused by Force Majeure (as defined in Article 19 i. below) with the
goal of providing broad access to the Zoo and Gardens for County residents and the general public.
b. Admissions. LESSEE will have exclusive authority to set admission fees and other user fees for
the Zoo and Gardens and to budget and expend the revenues from such fees.
ARTICLE 7. Zoo Operations
LESSEE will maintain the Zoo and Gardens as a permanent and general collection of animals and
related horticulture as well as the botanical garden collection on the Demised Premises. LESSEE will at all
times cause the Zoo and Gardens to be operated in accordance with the following performance standards:
a. LESSEE will maintain membership in and accreditation by the American Zoo and Aquarium
Association, or its successor or any other national organization having responsibility for the accreditation of
zoological facilities ("AZA"). Notwithstanding the foregoing, if such accreditation in such organization is
not possible due to requirements that cannot reasonably be met by the Zoo and Gardens (including, for
example, the size and areas needed to maintain certain habitats, the requirements to include certain animals
that are beyond the financial means to provide (panda environments; elephant herd habitats; penguin or other
controlled climate species) LESSEE, in consultation with LESSOR, will determine what other organization
governing zoo operations will be the new entity providing certification or accreditation of LESSEE's
operation of the Zoo and Gardens.
6
10
b. LESSEE will maintain and operate the Zoo and Gardens in a manner consistent with the then-
existing Zoo Industry Standards (as hereinafter defined). LESSEE may, at its discretion, loan any animal for
breeding purposes and, further, may dispose of any animal deemed by LESSEE to be surplus. Reports of
deceased animals, animals on loan, or animals deemed to be surplus will be kept by LESSEE as part of its
animal inventory, available for review upon reasonable prior request by LESSOR. Notwithstanding the
foregoing, if such accreditation in such organizations is not possible because of the requirements discussed in
Article 7.a. above, the LESSEE and LESSOR will determine reasonable alternative standards for the Zoo
maintenance and operation, such as the U.S. Department of Agriculture standards.
c. LESSEE will provide non-discriminatory access to the public.
d. LESSEE will continue the Zoo and Garden's educational and conservation programming.
e. LESSEE will hire and employ such personnel as will, in LESSEE's judgment, be necessary to
operate, manage and maintain the Zoo and Gardens in accordance with the provisions of this Lease
Agreement. LESSEE will have sole responsibility to determine its policies and practices.
f. LESSEE will hold title, or have contractual rights under animal loans, to all existing and future zoo
animals for the benefit of the public for scientific, conservation, educational and recreational purposes.
LESSEE will, subject to available resources, purchase or otherwise acquire additional animals for the Zoo
and Gardens.
g. LESSEE will properly care for, feed, supervise and maintain all of the zoological and botanical
collection at the Zoo and Gardens in a clean and sanitary condition in accordance with Zoo Industry
Standards.
h. LESSEE agrees to maintain and preserve (to the extent possible) the historic botanical specimens
that remain on the Demised Premises from the original Nehrling collection. The original Nehrling botanical
gardens and residence occupied approximately thirteen (13) acres of the Demised Premises (the "Nehrling
Area"). The footprint of the Nehrling Area was extensively altered during the ownership by the Fleischmann
family by the installation of the paths and the monkey pond. However, some of the original botanical
specimens planted by Nehrling have survived and have been maintained by LESSEE. LESSOR agrees that
the remaining Nehrling Area will not be designated as an historic preservation site without the consent of
LESSEE, which consent will not unreasonably be withheld. Before agreeing to such designation, LESSOR
will consider any unreasonable hardship on the operation of the Zoo and Gardens that an historic designation
may cause. The parties agree that whether a property is or is not designated as a historical preservation site is
not an exercise of LESSOR'S police powers.
ARTICLE 8. Maintenance and Repair
a. LESSEE shall, at its sole cost and expense, maintain and repair the Demised Premises on a regular
basis from time to time in order to always and continuously keep the Zoo and Gardens in good working
order, in a safe and orderly condition and in substantial compliance with Zoo Industry Standards (as
hereinafter defined). If said Demised Premises are not in such compliance in the reasonable opinion of
LESSOR, as LESSOR may be advised by the U.S. Department of Agriculture Inspector, LESSEE will be so
advised in writing. If corrective action is not begun within thirty (30) days of the receipt of such notice and
prosecuted diligently until corrective action is completed, LESSOR may cause the same to be corrected and
LESSEE shall assume and pay all such reasonable maintenance and repair costs, and such costs shall
constitute ADDITIONAL RENT which shall be paid by LESSEE within ten (10) days of receipt of written
notice of costs incurred by LESSOR.
b. LESSEE, at no cost or expense to LESSOR, shall repair all damage to the Demised Premises
caused by LESSEE, its employees, agent(s), independent contractor(s), guest(s), invitee(s), licensee(s),
patron(s), and/or trespasser(s).
c. "Zoo Industry Standards" refers to the practices, methods, standards, and/or acts that are used by a
significant portion of the zoological facilities maintaining accreditation by the AZA (as such facilities may be
located in major cities of the United States) in the operation, maintenance, development, redevelopment of
zoo facilities and animal collections, and which, in the exercise of reasonable judgment in the light of facts
actually known, or reasonably should have been known, at the time a decision was made, would reasonably
1Q
E
have been expected to accomplish the desired result at lowest reasonable cost, consistent with licensing and
regulatory considerations, environmental considerations, reliability, safety and expediency. Zoo Industry
Standards are not intended to be limited to the optimum practices, methods, standards or acts, to the
exclusion of all others, but rather to be an accepted range of practices, methods, standards or acts employed
by constructors, owner, or operators of facilities similar in size, locale and operation characteristics to the
Zoo and Gardens.
ARTICLE 9. Modifications, Additions,Alterations and Improvements
a. Prior to making any significant modifications, additions, alterations, improvements or replacements
to or on the Demised Premises or to any existing improvements thereon (significant is defined as projects
costing in excess of $25,000 in the aggregate, during any 365-day time frame, to complete; such amount
being subject to adjustment based on changes in the Consumer Price Index), LESSEE must provide to
LESSOR all proposals and plans for alterations, improvements, modifications, additions and/or replacements
to the Demised Premises for LESSOR'S written approval, specifying in writing and in meaningful detail, the
nature and extent of the desired alteration, improvement, modification, addition, or replacement, along with
the contemplated starting and completion time for each such project. LESSOR or its designee will then have
sixty (60) days after receipt of such proposals or plans within which to approve or deny the respective project
in writing. LESSOR shall not unreasonably withhold its consent to required or appropriate alterations,
improvements, modifications, additions, or replacements proposed by LESSEE.
b. LESSEE covenants and agrees in connection with any maintenance, repair work, erection,
construction, improvement, addition, replacement or alteration of any such project, to observe and comply
with all then existing applicable laws, ordinance, rules, regulations, and requirements of the United States of
America, State of Florida, County of Collier, and any and all other governmental agencies with jurisdiction
over such work.
c. LESSEE shall pay the entire cost of any new construction upon the Demised Premises or the
alteration of any structure, landscaping or impoundment situated thereon, as well as the cost of any
equipment required in connection with any operations to be conducted by LESSEE. Prior to any
modification, addition, alteration, replacement or improvement to the Demised Premises approved by
LESSOR, LESSEE shall provide either (1) reasonable evidence acceptable to LESSOR that LESSEE has
available sufficient funds, either on hand, or good faith pledges of contributions and/or grants, to ensure the
completion of the proposed project and full and timely payment of debt service and capital expenses or (2) a
construction bond in a sufficient sum to cover the costs of the proposed project should LESSEE fail to
complete it once started. In addition, prior to undertaking any improvements in excess of $500,000 in hard
costs, LESSEE will contractually require the construction contractor(s) to provide separate payment and
performance bonds in accordance with then applicable law.
d. All alterations, improvements and additions, etc., including non-fixture improvements, to said
Demised Premises are and shall continue to be property of LESSEE. Prior to the termination of this Lease or
prior to the termination of any renewal term hereof, or the expiration of this Lease, or within thirty (30) days
thereafter, if LESSOR so requests, 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. As long as such termination is not due to the
default of LESSEE, LESSOR agrees to pay for the greater of (1) costs of removal or (2) the unamortized
value of the improvements as set forth in Article 2 d. above. Additionally, if LESSOR wishes the
improvements to remain, LESSOR shall reimburse LESSEE for the costs thereof as set forth in Article 2 d.
above.
e. LESSEE will comply with any and all requirements of the Americans with Disabilities Act, 42
U.S.C. Sec. 12101, et seq., ("ADA"), including, but not limited to, the removal of all structural barriers, the
accessibility of programs, services and goods, the provision of all auxiliary aids and services, and the
modification of policies, practices and procedures as and when practicable.
f. Notwithstanding the foregoing, LESSEE shall be entitled to make the following modifications,
additions, alterations, improvements or replacements to or on the Demised Premises or to any existing
improvements thereon without prior approval of LESSOR (although notice will be given for informational
purposes): 1. those required by the day-to-day operations of the Zoo and/or Gardens; 2. those required by the
AZA; 3. those required by emergency situations where the time required for approval by LESSOR could
8
1OE
endanger the well-being of the Zoo animals and/or employees, invitees, patrons or guests; and/or 4. all other
modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any
existing improvements thereon which do not, in the aggregate, cost more than $25,000 in any 365-day time
frame to complete (such amount being subject to adjustment periodically based upon changes in the
Consumer Price Index for Southwest Florida).
ARTICLE 10. Extent of Liens
LESSEE is required to and shall keep the Demised Premises free from any liens arising out of any
work performed, materials furnished or obligations incurred by or for LESSEE and any other liens and/or any
other encumbrance(s) placed thereon during the term of this Lease, or any extensions hereof. All individuals
and/or entities to whom these presents may come are put upon notice that no interest of the LESSOR in the
Demised Premises shall be subject to liens for improvements made by the LESSEE, also liens for
improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on any
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 11. Casualty and Condemnation
a. Casualty. If the Zoo and/or Gardens are destroyed, rendered substantially untenantable, or damaged
to any material extent, as reasonably determined by LESSEE and LESSOR, by fire or other casualty, and
LESSEE elects not to repair or replace the improvements or personal property, then LESSEE or LESSOR
may terminate this Lease Agreement by providing notice to the other party within ninety (90) days after the
occurrence of such casualty. The termination will be effective on the ninetieth (90th) day after such fire or
other casualty, unless extended by mutual written agreement of LESSOR and LESSEE. During the period
between the date of such casualty and the date of termination, LESSEE will close the Zoo and Gardens or
affected portions thereof as may be necessary or appropriate to protect the health and safety of the patrons
and/or visitors to the Zoo and/or Gardens and of the Zoo animals. If this Lease Agreement is not terminated
as set forth herein, or if the Zoo and/or Gardens are damaged to a less than material extent, as reasonably
determined by LESSEE and LESSOR, LESSEE will proceed with reasonable diligence, at no cost or expense
to LESSOR, to rebuild and repair the Zoo and/or Gardens to substantially the condition as existed prior to the
casualty. Notwithstanding any such termination, LESSEE shall have the two-year Disposition Period (as
defined in Article 18 below) to remove its animals and any personal property, understanding that such
relocation will take longer than 90 days.
b. Condemnation. Promptly upon becoming aware of the commencement of any effort to acquire any
part of the Demised Premises by a condemning authority, LESSOR will give notice to LESSEE thereof. If
all or a substantial part (as reasonably determined by LESSOR and LESSEE) of the Zoo and Gardens are
taken through a condemnation, then LESSEE or LESSOR may terminate this Lease Agreement by giving
notice to the other party hereto within sixty (60) days after the date LESSOR is served with condemnation
pleadings. If this Lease Agreement is so terminated, all compensation awarded for any condemnation of the
Zoo and/or Gardens will be allocated between LESSEE and LESSOR, as their interests may then appear and
be valued by the condemning authority or by jury. If this Lease is not so terminated as provided above, the
portion of compensation awarded for the part of the land taken will be the property of LESSOR and the
portion of compensation awarded for the part of the leasehold, improvements, fixtures, or personal property
of LESSEE shall be paid over to LESSEE for the restoration of the remaining portion of the Zoo and/or
Gardens.
ARTICLE 12. Access to Demised Premises
LESSOR, its duly authorized agents, contractors, representatives and employees, shall have the right
after reasonable oral notice to LESSEE, to enter into and upon the Demised Premises or any part thereof
during business hours, or such other times with the consent of LESSEE, to inspect the Zoo and/or Gardens
and/or to verify compliance with the terms of this Lease Agreement and/or for the purpose of examining the
same and making any required repairs not being timely completed by LESSEE, as more particularly
described in ARTICLE 8, above. LESSOR appoints Collier County's Real Estate Services Department's
Property Manager as the authorized agent who will have the specific responsibility as LESSEE's primary
contact person for matters under this Lease Agreement. LESSEE appoints its Executive Director and the
President of LESSEE's Board of Directors (or their successors or designees) as the designated agents for
9
E
LESSEE. LESSEE agrees to provide reasonable advance notice by telephone or e-mail to LESSOR's
representative to LESSEE's Board of Board meetings.
ARTICLE 13. Assignment and Subletting
a. LESSEE shall not assign this Lease Agreement nor attempt to sublet the whole or any part of the
Demised Premises, or permit any other person(s) to occupy same without the expressed prior written consent
of LESSOR. Any such assignment or subletting, even with the consent of LESSOR, shall not relieve
LESSEE from liability for payment of rent and/or other sums herein provided or from the obligation to keep
and be bound by this Lease Agreement, unless expressly released from this Lease Agreement in writing by
LESSOR. 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 a consent to the assignment of this Lease or subletting of the Demised
Premises. Any such attempt shall be void ab initio. LESSEE's contracts and occupancy agreements with
concessionaires on the Demised Premises will not be deemed to be assignments or subleases of this Lease
Agreement and are not prohibited by this Article. The words "assign" or "sublet" include any transfer of any
type or description whatsoever. No such transfer shall be a novation unless a novation is expressly agreed to
by LESSOR.
b. LESSOR is specifically authorized and permitted to assign this Lease Agreement and its interest as
landlord under this Lease Agreement to Collier County or any other agency of the County. After such
assignment, the Trust for Public Land will be released from all liability arising after the date of the
assignment.
c. LESSEE is specifically authorized and permitted to license portions of the Demised Premises to
vendors servicing the Demised Premises and other organizations such as conservation groups and federal
programs involved in the restoration of certain plant species and/or wildlife.
d. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
ARTICLE 14. INDEMNITY AND DEFENSE OF CLAIMS
a. IN CONSIDERATION OF TEN DOLLARS ($10.00), THE RECEIPT AND SUFFICIENCY OF
WHICH IS HEREBY ACKNOWLEDGED, LESSEE 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 TRIAL AND ALL 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 CONDITION CREATED (OTHER THAN BY LESSOR, ITS EMPLOYEES, AGENTS OF
CONTRACTORS) BY OR ON BEHALF OF LESSEE IN OR ABOUT THE DEMISED PREMISES, (C)
ANY CONDITION OF THE DEMISED PREMISES DUE TO OR RESULTING FROM ANY ACTION OR
INACTION BY LESSEE IN THE PERFORMANCE OF LESSEE'S OBLIGATIONS UNDER THIS LEASE
AGREEMENT OR OTHERWISE, (D) ANY ACT, OMISSION OR NEGLIGENCE OF LESSEE OR ITS
AGENTS, CONTRACTORS, EMPLOYERS, SUBTENANTS, LICENSEES OR INVITEES OR (E) AS A
RESULT OF THE PRESENCE OF HAZARDOUS MATERIALS ON THE DEMISED PREMISES IN
VIOLATION OF ARTICLE 20 HEREUNDER.
b. LESSOR SHALL NOT BE LIABLE FOR ANY INJURY OR DAMAGE TO PERSON OR
PROPERTY CAUSED BY THE ELEMENTS OR BY ANY 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 OR OTHERWISE.
c. LESSOR SHALL NOT BE LIABLE FOR ANY DAMAGES TO OR LOSS OF, INCLUDING
LOSS DUE TO THEFT, ANY PROPERTY, OCCURRING ON THE DEMISED PREMISES OR ANY
PART THEREOF, AND LESSEE AGREES TO HOLD LESSOR HARMLESS FROM ANY CLAIMS FOR
10
1OE
DAMAGES, EXEPT WHERE SUCH DAMAGE OR INJURY IS THE RESULT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR ITS OFFICERS, EMPLOYEES OR
AGENTS, ALL OF WHOM WHILE ACTING WITHIN THE SCOPE OF THEIR RESPECTIVE
AUTHORITY.
d. In case any action or proceeding is brought against LESSOR by reason of any one or more of such
indemnified claims, 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. It is specifically agreed however, that LESSOR may at its own cost and
expense participate in the legal defense of such claim, with legal counsel of its choosing.
e. In no event will any elected official or employee of the County or any director, officer or employee
of LESSOR have any personal liability for actions taken by such individual in good faith in the course of
carrying out his or her responsibilities on behalf of the County, or LESSOR, pursuant to this Lease
Agreement.
ARTICLE 15. Insurance
a. LESSEE shall provide and maintain general liability and property liability insurance policy(ies),
approved in writing by LESSOR and the Collier County Risk Management Department, for not less than
Three Million Dollars and No/Cents ($3,000,000.00) combined single limits during the term of this Lease
Agreement. If such amounts are less than the Zoo Industry Standards or good insurance industry practice
would require, LESSOR reserves the right to increase these insurance limits by providing LESSEE with at
least sixty (60) days' advance notice to do so.
b. In addition, LESSEE shall provide and maintain Worker's Compensation Insurance covering all
employees meeting the then existing 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 No/100 Cents ($100,000.00) per each accident. If such amounts are less than the Zoo Industry
Standards or good insurance industry practice would require, LESSOR reserves the right to increase these
insurance limits by providing LESSEE with at least sixty (60) days' advance notice to do so.
c. LESSEE shall also maintain standard fire and extended coverage insurance on the additions and
improvements located on the Demised Premises and all of LESSEE's property located on or in the Demised
Premises including, without limitation, furniture, equipment, fittings, installations, fixtures (including
removable trade fixtures), personal property and supplies, in an amount not less than the then-existing full
replacement value.
d. Business Automobile Liability Insurance, and Business Boat Liability Insurance, for automobiles
and boats used by LESSEE in the course of its performance under this Lease Agreement, including
Employer's Non-Ownership and Hired Auto Coverage, each said policy in amounts of $1,000,000 combined
single limit per occurrence. If such amounts are less than the Zoo Industry Standards or good insurance
practice would require, LESSOR reserves the right to increase these insurance limits by providing LESSEE
with at least sixty (60) days' advance notice to do so.
e. Automobile Physical Damage Insurance covering all vehicles used on or about the Zoo and Gardens
and all of LESSEE's other owned or leased vehicles for Collision and Other Than Collision Perils within a
maximum deductible of$1,000 per accident.
f. All of the above-described insurance policy(ies) shall list and continuously maintain LESSOR, as
well as its Officers, employees, representatives and agents, as additional insureds thereon. Evidence of such
insurance shall be provided to LESSOR and the Collier County Risk Management Department, 3301 East
Tamiami Trail, Administration Building, Naples, Florida, 33962, for approval prior to the commencement of
this Lease Agreement; and shall include a provision requiring not less than ten (10) days prior written notice
to LESSOR in the event of cancellation or changes in policy(ies) coverage. If such amounts are less than the
Zoo Industry Standards or good insurance practice would require, LESSOR reserves the right to reasonably
amend their 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. The issuer of any
policy must have a certificate of authority to transact insurance business in the State of Florida and must be
rated "A" or better in the most current edition of Best's Insurance Reports. Each insurer must be responsible
and reputable and must have financial capacity consistent with the risks covered. Each policy must contain
11
0
an endorsement to the effect that the issuer waives any claim or right of subrogation to recover ainst
LESSOR, its employees, representatives and agents.
g. Failure to continuously abide with all of these insurance provisions shall be deemed to be a material
breach of this Lease and LESSOR shall have the remedies set forth below in Article 16.
ARTICLE 16. Defaults and Remedies
a. Defaults by LESSEE. The occurrence of any of the following events and the expiration of the
applicable cure period set forth below without such event being cured or remedied will constitute a "Default
by LESSEE" to the greatest extent then allowed by law:
1. Abandonment of Demised Premises or discontinuation of LESSEE'S operation.
2. Falsification of LESSEE or a specifically authorized agent of LESSEE of any report required to be
furnished to LESSOR pursuant to the terms of this Lease Agreement.
3. Filing of insolvency, reorganization, plan or arrangement of bankruptcy.
4. Adjudication as bankrupt.
5. Making of a general assignment of the benefit of creditors.
6. If LESSEE suffers this Lease to be taken under any writ of execution and/or other process of law
or equity.
7. LESSEE loses the AZA accreditation for the Zoo, and such accreditation is not restored within
two (2) years or such additional time as may be required if such accreditation is being diligently pursued by
LESSEE. Notwithstanding the foregoing, to the extent that such loss of accreditation results from
requirements of the AZA that are unreasonable or financially impracticable for LESSEE to comply with, it
shall not be a default hereunder to lose such accreditation.
8. Any lien is filed against the Demised Premises or LESSEE's interest therein or any part thereof in
violation of this Lease Agreement, or otherwise, and the same remains unreleased for a period of sixty (60)
days from the date of filing unless within such period LESSEE is contesting in good faith the validity of such
lien and such lien is appropriately bonded.
9. Failure of LESSEE to perform or comply with any covenant or condition made under this Lease
Agreement, which failure is not cured within ninety (90) days from receipt of LESSOR'S written notice
stating the non-compliance shall constitute a default (other than those covenants for which a different cure
period is provided), whereby LESSOR may, at its option, terminate this Lease by giving LESSEE.,thirty (30)
days written notice unless the default is fully cured within that thirty (30) day notice period (or such
additional time as is agreed to in writing by I ESSOR as being reasonably required to correct such default).
However, the occurrence of any of the events set forth above as 16 (a). 1 through 6 shall constitute a material
breach and default by LESSEE, and this Lease may be immediately terminated by LESSOR except to the
extent then prohibited by law. Notwithstanding the foregoing termination of the Lease Agreement, LESSEE
shall have the Disposition Period (as herein defined) to remove the Zoo animals and other property of
I ESSEE from the Demised Premises; the parties understanding that the relocation of Zoo animals may take
significant time to safely accomplish.
10. LESSEE's loss of its federal IRS tax exempt status.
11. Failure to continue those programs set forth in Article 3 e 1-7 above, unless such failure is cured
within ninety (90) days from receipt of LESSOR's written notice of default.
b. Remedies of LESSOR.
12
1
1. In the event of the occurrence of any of the foregoing defaults in this ARTICLE 16, L S , in
addition to any other rights and remedies it may have, shall have the immediate right to re-enter and remove
all individuals, entities and/or property from the Demised Premises, provided such entering and removal is
not detrimental to the welfare of the zoo animals. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of LESSEE, all without service of notice or resort
to legal process and without being deemed guilty of trespass, or being liable for any loss or damage which
may be occasioned thereby. If LESSEE does not cure the defaults in the time frames as set forth above, and
LESSOR has removed and stored property, LESSOR shall not be required to store for more than thirty (30)
days. After such time, such property shall be deemed abandoned and LESSOR shall dispose of such property
in any manner it so chooses and shall not be liable to LESSEE for such disposal.
2. If LESSEE fails to promptly pay, when due, any full installment of rent or any other sum payable to
LESSOR under this Lease, and if said sum remains unpaid for more than five (5) days past the due date, the
LESSEE shall pay LESSOR a late payment charge equal to five (5%) percent of each such payment not paid
promptly and in full when due. Any amounts not paid promptly when due shall also accrue compounded
interest of two (2%) percent per month or the highest interest rate then allowed by Florida law, whichever is
higher ("Default Rate"), which interest shall be promptly paid by LESSEE to LESSOR. Notwithstanding the
foregoing, if such payment is delayed due to acts of god (hurricanes, flooding, wind storms etc.), it shall not
be a default hereunder for such delay nor shall Default Rate interest accrue.
3. LESSOR may sue for direct, actual damages arising out of such Default of LESSEE or apply for
injunctive relief as may appear necessary or desirable to enforce the performance and observance of any
obligation, agreement or covenant of LESSEE under this Lease Agreement, or otherwise.
c. 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 written
notice to LESSOR by LESSEE properly and in meaningful detail specifying wherein, in LESSEE's judgment
or opinion, LESSOR has failed to perform any such obligation(s).
d. Remedies of LESSEE.
1. LESSEE may sue for direct, actual damages arising out of such Default by LESSOR or for
injunctive relief as may appear necessary or desirable to enforce the performance and observance of any
obligation, agreement or covenant of LESSOR under this Lease Agreement, or otherwise.
2. LESSEE may cure such Default of LESSOR and pay all sums or do all reasonably necessary work
and incur all reasonable costs on behalf of and at the expense of LESSOR. LESSOR will pay LESSEE on
demand all reasonable costs incurred and any amounts so paid by LESSEE on behalf of LESSOR, together
with interest accrued thereon at the Default Rate from the date so incurred until LESSEE has been
completely reimbursed.
e. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended
to be exclusive of any other available remedy or remedies, but each and every such remedy will be
cumulative and in addition to every other remedy given under this Lease Agreement or hereafter existing
under law or in equity. No delay or omission to exercise any right or power accruing upon any event of
default will impair any such right or power nor be construed to be waived, but any such right and power
maybe exercised from time to time and as often as may be deemed expedient.
f. Non-Waiver. Every provision hereof imposing an obligation upon LESSEE is a material
inducement and consideration for the execution of this Agreement by LESSEE and LESSOR. No waiver by
LESSEE or LESSOR of any breach of any provision of this Lease Agreement will be deemed for any
purpose to be a waiver of any breach of any other provision hereof or of any continuing or subsequent breach
of the same provision, irrespective of the length of time that the respective breach may have continued.
g. Attorneys' Fees. In the event of any litigation, including appellate proceedings, arising out of a
default under this Agreement, the prevailing party shall not be entitled to recover any attorney's fees nor any
costs from the non-prevailing party or otherwise (consistent with Article 26 below).
ARTICLE 17. Notices
13
1OE
a. Any notice, request, demand, instruction or other communication to be given to either party
hereunder shall be in writing, sent by facsimile with automated confirmation of receipt, or by
registered or certified mail, return receipt requested, postage prepaid, transmitted or addressed as
follows:
If to LESSOR: The Trust for Public Land
1595 Bay Street SE, Suite#3
St. Petersburg, FL 33701
Attn: John Garrison, Project Manager
Telephone: (727) 895-5090
Fax No.: (727) 895-5190
With a copy to: Donna H. Smith
Regional Counsel
The Trust for Public Land
4267 NW Federal Highway, PMB 120
Jensen Beach, FL 34957
Telephone (772) 335-3520
Fax No.: (772) 335-1438
If to LESSEE: Naples Zoo, Inc.
1590 Goodlette-Frank Road
Naples, Florida 34102
Attn: Executive Director
Telephone: (239) 262-5409 x. 107
Fax No.: (239) 262-6866
With a copy to: Naples Zoo, Inc.
1590 Goodlette-Frank Road
Naples,Florida 34102
Attn: President of Naples Zoo, Inc. Board
Telephone: (239) 262-5409 x. 107
Fax No.: (239) 262-6866
With a copy to: Scott M. Ketchum, Esquire
Law Offices of Scott M. Ketchum, P.A.
692 Goodlette Road N
Naples,FL 34102
Telephone: (239) 403-0148
Fax No.: (239) 403-0965
b. The facsimile numbers and addresses for the purpose of this Article 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 facsimile numbers or addressees only, unless and until such written notice is
received by the recipient party, the last addressee and respective address stated herein shall be deemed
to continue in effect for all purposes.
ARTICLE 18 Surrender of Demised Premises
In order to provide for the orderly transition and reconveyance of the Demised Premises to LESSOR,
LESSEE, at no cost to LESSOR, shall remove all furniture, fixtures, personal property, including all Zoo
animals and any improvements completed by LESSEE (that LESSOR gives notice that it wishes demolished)
prior to the expiration of this Lease and shall deliver up and surrender to LESSOR possession of the Demised
Premises and any improvements not removed upon expiration of this Lease, or earlier termination, in as safe
and orderly a condition and in good repair as the same shall be at the commencement of the term of this
Lease Agreement or may have 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. Notwithstanding the
foregoing, understanding that a zoo operation cannot be removed without a significant period of time, the
parties hereto agree that the disposition period (the "Disposition Period") for the orderly and safe removal of
14
n
the zoo animals and fixtures will be a period to or or t
of two (2) years from the time of any o q
last two (2) years of any term of this Lease. The parties further agree that during the Disposition Period,
LESSEE shall pay percentage rent only, not Base Rent.
ARTICLE 19. General Provisions
a. Rights not specifically granted the LESSEE by this Lease Agreement are reserved to the LESSOR.
b. NET, NET, NET LEASE. LESSEE shall promptly pay any and all sales taxes, licenses, permits,
assessments and fees, taxes upon LESSEE's operations, and taxes imposed on the leasehold interest or
otherwise related to the rental of the Demised Premises to the extent applicable under law, as well as
any and all other taxes legally assessed. LESSOR acknowledges that LESSEE is a not for profit entity
designated as 501(c) (3) by the Internal Revenue Service. As a not for profit federal income tax
exempt entity, LESSEE may be exempt from the imposition of taxes on the leasehold interest. To the
extent that LESSOR is then exempt from the payment of real property taxes on the underlying fee,
LESSEE shall have no obligation to pay real property taxes. However, if the form of ad valorem taxes
is changed by any law and LESSOR is then required to pay such taxes on the leasehold interest, such
taxes will be paid by LESSEE as part of its triple net lease obligations hereunder.
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 and/or LESSEE'S use and or
possession of said leasehold interest in the Demised Premises.
d. Time is of the Essence. Time is of the essence in the doing, performance and observation of each
and every term, covenant and condition of this Lease Agreement by LESSOR and LESSEE.
e. Severability. If any provision of this Lease Agreement is held to be unlawful, invalid, or
unenforceable under any present or future laws, such provision will be fully severable, and this Lease
Agreement will then be construed and enforced as if such unlawful, invalid or unenforceable provision
had not been a part hereof. The remaining provisions of this Lease Agreement will remain in full
force and effect and will not be affected by such unlawful, invalid or unenforceable provision or by its
severance herefrom.
f. Estoppel Certificates. Within fifteen (15) days after notice by one party to the other, the party
receiving notice will execute and deliver such estoppel certificates as the requesting party may
reasonably require, which may be relied upon by the requesting party, financing party, or any other
third party designated by the requesting party, certifying to such facts (if and to the extent true) and
agreeing to such reasonable notice provisions and other matters as such requesting party or such other
third party may reasonably require in connection with the business dealings of the requesting party.
g. Independent Contractor. LESSEE is an independent contractor, and not any agent or
representative or employee of LESSOR, nor of any Officer or employee of LESSOR. LESSEE
expressly covenants and agrees that during the term of this Lease Agreement neither LESSEE, nor
anyone acting on behalf of LESSEE, shall hold itself out as an employee, servant, representative or
agent of LESSOR. Neither party will have the right or authority to bind the other party without
express written authorization of such other party to any obligation to any third party, except as
expressly provided in this Lease Agreement with respect to subleases and occupancy agreements for
concessions in the Zoo and/or Gardens. No third party is intended by the parties to be a beneficiary of
this Lease Agreement or to have any rights to enforce this Lease Agreement against either party hereto
or otherwise. Nothing contained in this Lease Agreement will constitute the parties as partners or joint
venturers for any purpose, it being the express intention of the parties that no such partnership or joint
venture exists or will exist. LESSEE acknowledges that LESSOR is not providing any vacation time,
sick pay, or other welfare or retirement benefits normally associated with an employee-employer
relationship and that LESSOR excludes LESSEE and its employees from participation in all health
and welfare benefit plans including vacation, sick leave, severance, life, accident, health and disability
insurance, deferred compensation, retirement and grievance rights or privileges.
h. Entire Agreement/Amendments. This Lease Agreement constitutes the entire agreement between
the parties as to the subject matter hereof. This Lease Agreement will not be modified, altered or
amended except by written instrument duly executed by both LESSEE and LESSOR.
15
E
i. Force Majeure. Neither party to this Lease Agreement will be liable for any delay in the
performance of any obligation under this Lease Agreement or of any inability to perform an obligation
under this Lease Agreement if and to the extent that such delay in performance or inability to perform
is caused by an event or circumstance beyond the reasonable control of and without the fault or
negligence of the party claiming Force Majeure. "Force Majeure" shall include an act of God, war
(declared or undeclared), sabotage, riot, insurrection, civil unrest or disturbance, military or guerrilla
action, economic sanction or embargo, civil strike, work stoppage, slow-down or lock-out, explosion,
fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, the binding
order of any governmental authority, unavailability of supplies or products necessary for the operation
of the Zoo and Gardens, and/or failure of equipment not utilized or under the control of either party
hereto, provided that such equipment has been designed, constructed, operated and maintained in
accordance with prudent operating practice and Zoo Industry Standards.
j. Memorandum of Lease. LESSEE will have the right to record a memorandum of this Lease
Agreement in the real property records of Collier County, Florida.
k. Quiet Enjoyment. LESSOR covenants, warrants and represents that it has the full right and power,
subject to the Permitted Encumbrances, to execute this Lease Agreement and to grant the estate
demised herein, and that LESSEE, on paying the rent herein reserved and performing the covenants
and agreements herein contained to be performed by LESSEE, shall peaceably and quietly have, hold
and enjoy the Demised Premises and all rights and privileges belonging or pertaining thereto during the
Lease Term, as it may be extended.
1. Throughout this Lease, the words "law", "rule" and/or "regulation" or similar words shall not be
limited to items that are so defined, but shall apply to and include any such thing that legally applies,
including ordinances and codes.
m. Throughout this Lease, a list of nouns (for example: "employee", "servant", "representative", and/
or "agent" shall not be construed to be limited to the listed nouns, but shall include any individual
whomsoever and/or entity whatsoever to which the sentence or phrase could logically apply.
ARTICLE 20. Environmental Matters
a. Restrictions on Hazardous Materials. LESSEE will not transport, use, store, maintain, generate,
manufacture, handle, dispose, release or discharge any Hazardous Materials (hereinafter defined)upon or
about the Demised Premises, nor permit employees, representatives, agents, contractors, sub-contractors,
sub-sub-contractors, materialmen and/or suppliers to engage in such activities upon or about the Demised
Premises. However, the foregoing provisions will not prohibit the transportation to and from, and use,
storage, maintenance and handling, within the Demised Premises of substances customarily used in owning,
managing, repairing or operating similar premises devoted to uses authorized by this Lease; provided (i) such
substances will be used and maintained only in such quantities as are reasonably necessary and in accordance
with all then applicable laws, rules and/or regulations, and the manufacturers' instructions therefore, and (ii)
such substances will be disposed of, released or discharged at the Demised Premises in compliance with all
then applicable laws, rules and/or regulations, and will be transported to and from the Demised Premises in
compliance with all of the same.
b. Environmental Notices. Each party will promptly notify the other party upon the notifying party's
becoming aware of: (i) any enforcement, cleanup, or other regulatory action taken or threatened against either
party by any governmental or regulatory body with respect to the presence of any Hazardous Material on or
otherwise regarding the Demised Premises, (ii) any demands or claims made or threatened by any individual
or entity against LESSOR or LESSEE relating to any Hazardous Materials, (iii) any unlawful release,
discharge or non-routine, improper or unlawful disposal or transportation of any Hazardous Material on or
from the Demised Premises, and (iv) any matters where a party hereto is required by law, rule and/or
regulation to give a notice to any governmental or regulatory body respecting any Hazardous Materials in the
building(s) or on the Demised Premises. At such times as LESSOR may reasonably request, LESSEE will
provide LESSOR with a written list identifying any Hazardous Materials then actually known to LESSEE to
be used, stored, or maintained upon the Demised Premises, a copy of any MSDS issued by the manufacturer
thereof, written information concerning the removal, transportation and disposal of the same, and other
information as LESSOR may reasonably require or as may be required by laws.
16
c. Remediation. If any Hazardous Material is released, discharged or disposed of by LESSEE, or its
employees, agents or contractors, etc., on or about the Demised Premises in violation of the foregoing
provisions, or otherwise, LESSEE will immediately, properly and in compliance with all applicable laws and
ordinances, remediate the Hazardous Material on the Demised Premises and any other affected property, at
LESSEE's sole expense. Such remediation work will be subject to LESSOR's prior written approval, and
will include, without limitation, any testing, investigation and/or preparation and implementation of any
remedial plan required by any governmental body having jurisdiction. If LESSEE fails to comply with the
provisions of this Article 20 within five (5) days after written notice by LESSOR, or such shorter time as may
be required by law, LESSOR may (but will not be obligated to) arrange for such compliance through
contractors or other parties selected by LESSOR, at LESSEE's expense.
d. Definition of Hazardous Material. Hazardous Material means any substance:
i.) the presence of which requires investigation, remediation, or is, or becomes
regulated under any federal, state or local statute, regulation, ordinance, order, action, policy, or common
law; or
ii.) which is or becomes defined as a "hazardous substance," pollutant, or contaminant
under any federal, state, or local statute, regulation, rule, or contaminant under any federal, state, or local
statute, regulation, rule, or ordinance or amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) and/or
the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.); or
iii.) which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous, or poses, or threatens to pose a hazard to the health or
safety of persons on or about the Demised Premises, and is or becomes regulated by any governmental
authority, agency, department, commission, board, or instrumentality of the United States, the State in which
the Demised Premises are located or any political subdivision thereof.
e. Environmental Indemnity. In accordance with the provisions of ARTICLE 14 hereof, LESSEE
represents, warrants and agrees to indemnify, reimburse, defend and hold harmless LESSOR, from and
against all costs (including attorneys fees and all appeals) 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 harm to the environment associated with the Demised Premises. This
applies to any contamination that arises from any and all environmental testing whatsoever done on the
Demised Premises.
ARTICLE 21. 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 22. Security Provisions
LESSEE fully understands that the police and law enforcement security protection provided by law
enforcement agencies to the Demised Premises is limited to that provided to any other business or agency
situated in Collier County, and LESSEE acknowledges that any special security measures deemed necessary
for additional protection of the Demised Premises shall be the sole responsibility and cost of LESSEE and
shall involve no cost or expense to LESSOR.
ARTICLE 23. Non-Discrimination/Equal Opportunity
a. LESSEE in exercising any of the rights or privileges herein granted, shall not on the grounds of
race, color or national origin discriminate or permit discrimination against any individual or group of
individuals in any manner prohibited by Part 21 of the Rules and Regulations of the Secretary of
17
R
Transportation. LESSOR is hereby g ranted the right to take such action, anything to the contrary ein
notwithstanding, as the United States may direct to enforce this nondiscrimination covenant.
b. LESSEE assures that it will undertake an affirmative action program as required by 14 CFT Park
152, Subpart "E", to insure that no person shall on the grounds or race, creed, color, nation origin or sex be
excluded from participating in any employment activities covered in 14 CFT Park 152, Subpart "E".
LESSEE assures that no person shall be excluded on these grounds from participating in or receiving the
services or benefits of any program or activity covered by this Subpart.
c. LESSEE assures that it will require its covered suborganizations, if any, to provide assurances to
LESSEE that it similarly will undertake affirmative action programs and that it will require assurances from
its suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. LESSOR is hereby
granted the right to take such action, anything to the contrary herein notwithstanding, as the Federal
Government may direct to enforce this nondiscrimination covenant.
d. To the maximum extent permitted by applicable laws, LESSEE shall, in the conduct of its
business, comply with Collier County's and the State's minority, women, disadvantaged business enterprise
policies from time to time in effect.
ARTICLE 24. Interest of Members of Political Subdivision. No member of the governing body of the
City of Naples or Collier County or any political subdivision of the State of Florida and no other officer,
employee or agent of the City, County or any political subdivision of the State of Florida who exercises any
functions or responsibilities in connection with the carrying out of the establishment and operation of the Zoo
and/or Gardens to which this Lease Agreement pertains shall have any personal interest, direct or indirect, in
this Lease Agreement.
ARTICLE 25. Effective Date
This Lease shall become effective upon execution by both LESSOR and LESSEE.
ARTICLE 26. Governing Law and Venue
This Lease shall be governed by, and construed in accordance with, the laws of the State of Florida.
Any lawsuit or other action to enforce any provision of this Lease shall be filed in the Circuit Court in and for
the County of Collier, Florida and each party shall be responsible to pay its own costs and attorney's fees
resulting therefrom and the costs of any and all appeals.
IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals.
AS TO LESSOR: LESSOR:
THE TRUST FOR PUBLIC LAND,
A California not-for-•rofit Corporate
FIR NESS (signature) •B �.� - All
I 1 4�L V I V l` - t b�aN\S. it e: F L-0 SI'At'� ^��2e c ro 2
(printe of first witness) Date:/,_/9 , 2005
.um 4 S A
SECOND WITNESS (signature)
L )) f) t4 avuxt±
(print name of second witness)
18
E
AS TO LESSEE: LESSEE:
NAPLES ZOO, INC., a Florida not-for-profit
Corporatio•
.x� By: !er
FIRST WITNESS (signature) Name:V 'J19 %BP""�
Title: e,egc p(r?
1�c�.1'1!SG e►'�c� I ncL. Date: DK , 2005
(print name of first witness)
SECOND WITNESS (signature)
wc:-/7e 'c k1 S
(print name of second witness)
19
40E
Exhibit "A"
Description of Total Property
Island in 17th Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Naples, according
to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat
Book 1, Page 8, in the Public Records of Collier County, Florida; and
All that part of Lot 9 of Naples Improvement Company's Little Farms Subdivision, lying south of Golden
Gate Parkway, recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; and
The East 564 feet of the West 1,184 feet of Lot 8 of Naples Improvement Company's Little Farms
Subdivision, less road right-of-way granted in Official Records Book 876, Page 1,718, according to the map
or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2,
Page 2, in the Public Records of Collier County,Florida; and
The East 470 feet of the West 1,654 feet of Lot 8 of Naples Improvement Company's Little Farms
Subdivision recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and
All of Lot 8 of Naples Improvement Company's Little Farms Subdivision, except the West 1,654 feet,
according to the plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; the
East and West boundary lines of said Parcel being measured from the West line of said Lot 8 (said West line
of Lot 8 lying 25.00 feet East of the North and South 1/4 Section line of Section 27, Township 49 South,
Range 25 East, Collier County, Florida; and
The East 338.24 feet of the West 958.34 feet of Lot 7 of Naples Improvement Company's Little Farms
Subdivision, per Plat Book 2, Page 2, Public Records of Collier County, Florida, less and except that portion
deeded to the Board of County Commissioners of Collier County, Florida described as :
Commence at the Northwest corner of said Lot 7; thence North 89° 17' 39" East along the
North line of said Lot 7 for a distance of 620.00 feet to the Point of Beginning; thence
continue along the North line of said Lot 7 a distance of 41.60 feet to the point of intersection
with the point of curve concave to the Northwest having a radius of 813.94 feet and a central
angle of 26° 13' 03"; thence continue Southwesterly along said curve an arc distance of 51.30
feet to a point; thence North 00° 39' 49"West 30 feet to the Point of Beginning.
North 1/2 of Lot 7, less the West 1,288.34 feet of Naples Improvement Company's Little Farms Subdivision,
as per plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; and
Lots 3, 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof
recorded in Plat Book 2 at Page 2, Public Records of Collier County, Florida; together with all buildings
thereon; subject to the following easements of record to Florida Power &Light Company relating to said Lot
6: (a) An easement dated June 10th, 1953, recorded in Deed Book 30 at Page 395 of said Public Records; and
(b) An easement dated June 10th, 1953, recorded in Deed Book 30 at Page 397 of said Public Records. Less
and except the following described property:
That part of Lot 3 of Naples Improvement Company's Little Farms Subdivision, as per plat thereof
recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida, lying Easterly and
Southerly of the following described line:
Commencing at a concrete monument at the South 1/4 corner of Section 27, Township 49
South, Range 25 East, Collier County, Florida; thence along the South Line of said Section
North 89° 26' 09" East 753.94 feet to a point; thence South 0° 21' 55" East 334.85 feet to a
concrete monument on the South line of said Lot #3 and the Point of Beginning of the
described line; thence along said described line and the Westerly boundary of the herein
described parcel North 0° 21' 55" West 211.15 feet to a concrete monument at the Northwest
corner of said described Parcel; thence along said described line and the Northerly boundary
of said described parcel North 89° 38' 05" East 729.90 feet to a concrete monument; thence
continue North 89° 38' 05" East 13 feet, more or less, to the Easterly boundary of Lot 3 of
20
1OE
Naples Improvement Company's Little Farms Subdivision and the Point of Ending of said
described Line.
The Westerly 1 of Lot 39 and Lot 40, Gordon River Homes Subdivision, Lots 41, 42, and 43 and the East 45
feet of Lot 44, Gordon River Homes Subdivision, according to the map or plat thereof on file and recorded in
the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 84, in the Public Records of Collier
County, Florida; and
Lot 2 of Naples Improvement Company's Little Farms Subdivision, except area described in Deed Book 22,
Page 393, Public Records of Collier County, Florida, and less West 25 feet and right-of-way located in
Collier County, Florida, and except parcel deeded to Collier County Conservancy, Inc., as Parcel 2 in Official
Records Book 767, Page 249, according to the map or plat thereof on file and recorded in the Office of the
Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida;
and
All of Lot 97 of Naples Improvement Company's Little Farms Subdivision, lying South of Golden Gate
Parkway, according to the plat thereof recorded in Plat Book 2, at Page 2, Public Records of Collier County,
Florida; and
In North '/ of North '/ of Section 35, Township 49 South, Range 25 East, being at the Northwest corner of
the Section and run East 1,398.25 feet; thence South 64° West 1,555.06 feet; thence North 664.01 feet to the
place of beginning, Collier County, Florida; and
Lot 6 of Naples Improvement Company's Little Farms Subdivision; less additional road right-of-way for
Goodlette-Frank Road, according to the map or plat thereof on file and recorded in the office of the Clerk of
the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and
A lot or parcel of land lying in Lot 2 of Naples Improvement Company's Little Farms Subdivision,per plat in
Plat Book 2, Page 2,Public Records of Collier County,Florida, which lot is described as follows:
Beginning at a point on the South line of said Lot 2, which point is the Northwest corner of
Lot 50 of Gordon River Homes Subdivision per Plat in Plat Book 2, Page 84, Public Records
of Collier County, Florida, run Northerly parallel to the West line of said Lot 2 for 217.5 feet;
thence run Easterly parallel to the South line of said Lot for 180 feet; thence run Southerly
parallel to West line of said Lot for 217.5 feet to South line of said Lot; thence run Westerly
along said South line for 180 feet to Point of Beginning.
Being the same premises conveyed by deed recorded in Deed Book 22, Page 393, Public Records of Collier
County,Florida; less the West 40 feet thereof, and less road right-of-way for Goodlette-Frank Road.
21
1 Exhibit "A-1" u C
Description of Demised Premises
Island in 17th Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Naples, according
to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat
Book 1, Page 8, in the Public Records of Collier County, Florida; and,
Lot 3 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in
Plat Book 2, Page 2, of the Public Records of Collier County, Florida; less and except the South 311.25 feet
thereof; and
All of Lots 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat
thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County,Florida; and,
Lot 6, Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in
Plat Book 2, Page 2, of the Public Records of Collier County, Florida, less and except the following
described property:
Beginning at the Northwest corner of said Lot 6, run South along the West line of said Lot 6
for 60 feet; thence run East parallel with the North lot line of said Lot 6 for 983 feet; thence
run South parallel with the West line of said Lot 6 for 220 feet, more or less, to a line
parallel with and 50 feet (measured at right angles) North of the South line of said Lot 6;
thence run East parallel with said south line for 717 feet, more or less, to the waters of
Gordon River Canal; thence run Northeasterly for 280 feet, more or less, along the waters of
said Canal to the North line of the said Lot 6; thence run West along the said North line of
Lot 6 for 1,697 feet, more or less, to the point of beginning.
Subject to a reservation, herein reserved by this provision, for an easement to Collier County, its officers,
employees, agents, and/contractors, and the public for (1) construction of a road from the intersection of
Fleischmann Blvd. and Goodlette-Frank Road northerly along the westerly property line of the Demised
Premises, and a bus turnaround for use by the LESSEE within the LESSEE's primary existing parking lot;
and (2) ingress and egress over the roadways of the LESSEE so that all individuals who reasonably then need
such access will have the needed access to the Gordon River and adjoining lands and/or as otherwise from
time-to-time needed. This reservation shall be treated for all purposes as if existing within the text of the
Lease agreement.
22
Exhibit A-2
1 0
E
Description of Shared Parking Area
The South 311.25 feet of the West 440 feet of Naples Improvement Company's Little Farms, as measured
along the South line of said Lot 3, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public
Records of Collier County, Florida.
23
0 E
Attorneys' Title Insurance Fund, Inc.
COMMITMENT FORM
Schedule B-H
Commitment No.: Agent's File Reference:
C-2885654 9418-TPL-CC
II. Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are
disposed of to the satisfaction of The Underwriter:
1. Defects,liens,encumbrances,adverse claims or other matters,if any,created,first appearing in the public records or
attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of
record the estate or interest or mortgage thereon covered by this commitment.
2. Any owner and mortgagee policies issued pursuant hereto will contain under Schedule B the standard exceptions set
forth at the inside cover hereof unless an affidavit of possession and a satisfactory current survey are submitted, an
inspection of the premises is made, it is determined the current year's taxes or special assessments have been paid,
and it is determined there is nothing of record which would give rise to construction liens which could take priority
over the interest(s) insured hereunder (where the liens would otherwise take priority, submission of waivers is
necessary).
3: Any owner iccued pursuant-hereto will-eon -under-Schedule-B-the-fallowing exception:— Any adverse
owner•,ship-claim- y-the State-ef Florida-!}y right-ef sovereignty-4e any-portion-of-the lands insured hereunder,-
o • .DELETED.
4. The lien of all taxes for the year 2005 and thereafter. Taxes for 2006 will become a lien against the land as of
January 1,2006, although not due and payable until November 1, 2006. Taxes for 2005 are due and payable in the
following amounts: $-0-(Folio No. 17830000027);$8,003.30(Folio No.61940280000);$135,122.64(Folio No.
61940200006);$559.60(Folio No.61947800001);and$4,129.72(Folio No.61940320009).
5. Rights of parties in possession of that leased portion of the insured property commonly known as "Jungle Larry's"
under unrecorded Lease Agreements and all sublessees thereof, including without limitation rights under
Memorandum of Lease recorded in O.R.Book 2893,Page 916,Public Records of Collier County,Florida.
6. Riparian and littoral rights are not insured
7. This policy excludes from coverage the inalienable rights of the public to use the navigable waters covering or
adjacent to the lands
8. This policy does not insure any portion of the insured parcel lying waterward of the mean-high water line of the
Gordon River or Golden Gate Canal
9. Restrictions, conditions, reservations, easements, and other matters contained on the Plat of Naples Improvement
Company's Little Farms,as recorded in Plat Book 2,Page 2,Public Records of Collier County,Florida.
10. Easement in favor of Florida Power&Light Company, contained in instrument recorded November 14, 1953,Deed
Book 30,Page 393 as subordinated at O.R.Book 246,Page 59,Public Records of Collier County,Florida.
11. Easement in favor of Florida Power&Light Company,contained in instrument recorded November 14, 1953,Deed
Book 30,Page 395,Public Records of Collier County,Florida.
12. Easement in favor of Florida Power&Light Company,contained in instrument recorded November 14, 1953,Deed
Book 30,Page 397,Public Records of Collier County,Florida.
13. Easement in favor of Florida Power&Light Company, contained in instrument recorded June 21, 1960,O.R.Book
66,Page 301,Public Records of Collier County,Florida.
14. Easement in favor of Florida Power & Light Company, contained in instrument recorded Augsut 22, 1967, O.R.
Book 244,Page 631,Public Records of Collier County,Florida.
15. Easement in favor of Collier County, contained in instrument recorded September 12, 1985, Q.R.Book 1155, Page
233,Public Records of Collier County,Florida.
16. Easement in favor of Collier County,contained in instrument recorded April 28, 1995, O.R.Book 2053,Page 1696
as corrected and re-recorded at O.R.Book 2098,Page 1826,Public Records of Collier County,Florida.
17. Right of Entry recorded in O.K.Book 2999,Page 3091,Public Records of Collier County,Florida.
Form C-SCH.1d-11
(rev.5/94) DoubteTime®
n E
Attorneys' Title Insurance Fund,Inc.
COMMITMENT FORM
Schedule B-II (Continued)
Commitment No.: Agent's File Reference:
C-2885654 9418-TPL-CC
18. Resolution No.89-5753 recorded in O.R.Book 1603,Page 1508,Public Records of Collier County,Florida.
19. Subject to Right-of-Way Deed recorded in O.R.Book 66,Page 432,Public Records of Collier County,Florida.
20. Order of Taking recorded in O.R.Book 2735,Page 1135,Public Records of Collier County,Florida.
21. Easement in favor of Florida Power& Light Company, contained in instrument recorded September 9, 1980,O.R.
Book 882,Page 1123,Public Records of Collier County,Florida.
22. Any lien provided by County Ordinance or by Ch. 159,F.S.,in favor of any city,town,village or port authority,for
unpaid service charges for services by any water systems, sewer systems or gas systems serving the land described
herein;and any lien for west fees in favor of any county or municipality.
23. Any rights in favor of third parties arising from the following matters of survey as depicted on WilsonMiller survey
dated July 6,2004,revised August 15,2005,and bearing File No.4G-125A: Guy wire anchors,traffic signal poles,
and utility poles located along the Western boundary of the insured property outside of any easement area.
Note:The gap and standard exceptions, except the standard exception pertaining to ad valorem taxes for the current
and subsequent years,will be deleted upon the receipt of a current survey and owner's gap affidavit acceptable to the
company.
Note: Standard exceptions for matters of survey will not be deleted from the policy to be issued with respect to
Parcel 16.
Note: Notwithstanding Exception No. 1, this commitment provides the gap coverage set forth in Florida Statutes
627.7841 (Gap Statute)under the circumstances set forth in that statute,provided the insurer is allowed to disburse
and record.
2'l \c,S S cast ti.e - �—(ea 4 -� k ..-.C-kr Cr y v C.h G..c i 01 t U( i A�r
Fore:C-SCN.B-!I(Continued)
(rev.5/94) DoubleTime®