Loading...
Agenda 10/27/2009 Item #12AAgenda Item No. 12A October 27, 2009 Page 1 of 46 EXECUTIVE SUMMARY Recommendation that the Board adopt the attached standard form Lease and Ground Lease for all future leases with Not- For - Profit Entities, and to direct staff to review each of the County's Not - For -Profit Leases and, where appropriate, offer the Lessees the opportunity to convert their current lease to the standard form, subject to Board approval. OBJECTIVE: To obtain by standardization of lease agreements a consistent approach in leasing County land and/or buildings to not - for - profit entities. CONSIDERATIONS: During its September 15, 2009 meeting, the Board of County Commissioners directed the County Attorney to review and bring back a standard lease policy for the purpose of establishing a consistent policy concerning the leasing of County property to not- for -profit organizations. A copy of the Board's discussion is attached. In reviewing the County's various leases with not - for -profit entities, the lease concerning the Naples Zoo raised a issue concerning Board intent and direction. For this reason, the County Attorney has elected to bring this issue to the Board by two companion Executive Summaries. This Executive Summary discusses the proposed standard form leases. The companion Executive Summary discusses the Naples Zoo lease. I have prepared a standard form ground lease (in which the lessee constructs a building on County - owned property) as well as a standard form lease (in which the lessee rents an existing County building). I have also attached a chart outlining the County's leases with not - for - profit entities. I have attempted to ascertain general Board policies with respect to County leases with not -for- profit entities and have embedded the Board's policies within the proposed standard form leases. The standard form leases propose the following terms: Rent: With the exception of the Zoo, rent charged to not - far - profits is nominal, varying between $1 and $100 per year. Both standard form leases propose a nominal $1 per annum, paid in full on execution (in other words, a 30 year lease would require a $30 up front payment). The purpose of the lump sum payment is to reduce the County's costs of administrating the lease. (The rent for the Zoo is $235,500 per year plus a percentage of gross receipts.) Term: I did not ascertain any overall Board policy on this issue, as existing lease terms vary widely. I am accordingly proposing in the standard form ground lease a term of 35 years (which allows for the construction of a building as well as a pay -off period for any construction loan), and 30 years for the standard form lease (as the building is already existing). The rationale behind 30 years is that it should typically represent a long enough time for the not - for - profit to fund its mission, while reserving for future generations the decision whether to extend the use or utilize the County property in a different manner. I have purposefully not included renewal options, as I believe that a fixed term incentivizes the not - for - profit entity to maximize its service to the community, in order to positively impact any decision by a future Board of County Commissioners to extend its lease. Costs: Board policy has been for the not- for- profit lessee to pay all costs associated with the leased property. Both leases accordingly are "triple net" leases, with all costs borne by the lessees. Agenda Item No. 12A October 27, 2009 Page 2 of 46 Use: Board policy has been for the not - for - profit lessee to utilize the leased property for the public purpose approved by the Board. The leases are accordingly structured on a "use it or lose it" basis, with the County having the right to terminate if the leased property is not operated for the intended purpose. Much of the remainder of these leases is standard boilerplate, intended to both eliminate disputes between the parties and protect the County's interests. With respect to whether the Board should offer the standard form to all of the existing not -for- profit leases, there are some leases (such as the Collier Model Aeronautical Club lease) which may be best off left as is. Accordingly, I am recommending that. staff, pursuant to Board direction, review each of the County's Not - For - Profit Leases and, where appropriate, offer the Lessees the opportunity to convert their current lease to the standard form, subject to Board approval. LEGAL CONSIDERATIONS: The proposed standard form leases were drafted by the County Attorney and are legally sufficient for future use. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board adopts the attached standard form Lease and Ground Lease for all future leases with Not -For -Profit Entities, and directs staff to review each of the County's Not - For - Profit Leases and, where appropriate, offer the Lessees the opportunity to convert their current lease to the standard form, subject to Board approval. It is also recommended that where a future lease varies with the standard form, that the changed terms be set forth in an addendum to the standard form lease. The rational for this is staff can then quickly review a lease, look for an addendum, and if none, know exactly what the essential terms are without having to read through the entire document. Prepared by: Jeffrey A. Klatzkow, County Attorney Page 1 of 1 Agenda Item No. 12A October 27, 2009 Page 3 of 46 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 12A Item Summary: This item to be heard at 2:00 p.m. Recommendation that the Board adopts the attached standard form Lease and Ground Lease for all future leases with Not - For - Profit Entities, and to direct staff to review each of the County's Not - For - Profit Leases and, where appropriate, offer the Lessees the opportunity to convert their current lease to the standard form, subject to Board approval. Meeting Date: 10/27/2009 9:00:00 AM Prepared By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 1011912009 1:03:57 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 10/19/2009 3:11 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 10/19/2009 4:06 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 10/1912009 6:42 PM file://C: \AgendaTest \Export\137-October 27, 2009 \12. COUNTY ATTORNEY REPORT \... 10/21 /2009 Agenda Item No. 12A October 27, 2009 Page 4 of 46 September 15, 2009 COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Item #9D RESOLUTION 2009 -216: APPOINTING JILL KOBE TO THE PELICAN BAY SERVICES DIVISION BOARD — ADOPTED MR. OCHS: 9D is appointment of member to the Pelican Bay Services Division Board. COMMISSIONER HALAS: Motion to approve Jill Kobe for community -- or excuse me -- commercial property. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Okay. Motion and a second. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Okay. Item #9E RECOMMENDATION THAT THE BOARD OF COUNTY Page 51 Agenda Item No. 12A October 27, 2009 Page 5 of 46 September 15, 2009 COMMISSIONERS ESTABLISH A CONSISTENT POLICY CONCERNING THE LEASING OF COUNTY PROPERTY TO NOT -FOR- PROFIT ORGANIZATIONS -- COUNTY ATTORNEY TO REVIEW AND BRING BACK A STANDARD LEASE POLICY MR. OCHS: 9E is a recommendation that the Board of County Commissioners establish a consistent policy concerning the leasing of county property to not - for - profit organizations. This item was placed on the agenda at Commissioner Coyle's request. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Okay. Madam Chair, I requested that this be placed on the agenda after a review of the leases which we have signed with nonprofit corporation -- organizations throughout Collier County. And I found there's a wide variance in the terns and conditions and the charges that are made to nonprofit organizations for the use of community property. We have leased property for the children's museum. We have a Senior Friendship Center using the Golden Gate Library facilities. We have the Naples Zoo, we have museums. We have lots of other organizations, not - for - profit organizations, using county property with no standardization concerning how we -- what the terms should be. So I am suggesting that we ask the County Manager or, I'm sorry, the County Attorney to develop a standard policy which will be applied evenly to all not - for - profit organizations, and change the leases accordingly. CHAIRMAN FIALA: Okay. I -- Commissioner Henning. COMMISSIONER HENNING: Yeah. It sounds reasonable to me. But in those leases there are certain conditions within those leases. I'm assuming, Commissioner Coyle, you're just talking about the -- like a dollar -- dollar a year for 99 year type monetary stuff? COMMISSIONER COYLE: No. There's some major variances Page 52 Agenda Item No. 12A October 27, 2009 Page 6 of 46 September 15, 2009 in term. Some organizations that are being asked -- or being allowed to use the land are investing large sums of money developing capital improvements. I mean, the children's museum is an example. COMMISSIONER HENNING: Right. COMMISSIONER COYLE: And certainly the Naples Zoo is another example. So they spend money developing these facilities but yet they might have a relatively short term to the lease. What would happen if we just yanked the lease at some point in time and they've invested all this money? In many of these leases, the capital improvements become the property of the county. So if we're going to do that, we need to have the period of the lease long enough to justify the expenditure of creating the capital improvements on the land. So I would suggest that we ask the County Attorney to take a look at these leases and see if he can determine a standard that can be applied to almost all of these, and then we provide the option for any of the leaseholders to renegotiate the lease in accordance with those standards. I wouldn't say that we need to force them to do it, but if they wish to do it, they could take advantage of any favorable terms that might come out of the standardization process. COMMISSIONER HENNING: Right. But nothing above what you have just stated? You know, my concern is, there are certain conditions, certain performance conditions under the lease. COMMISSIONER COYLE: Yeah, there -- well, it's more complex than that. But it you're talking about the boilerplate that protects the county with respect to liability and things like that, I'm not planning on -- suggesting we change all that sort of stuff. But I would just like to see us take a look at the lease term, the lease rate, and probably limit it to that. COMMISSIONER HENNING: Okay. We're on the same page then. Page 53 Agenda Item No. 12A October 27, 2009 Page 7 of 46 September 15, 2009 COMMISSIONER COYLE: Okay. COMMISSIONER HENNING: 'Thank you. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: The things that I would have concerns with -- and I'm not sure if this is direction that were trying to give the County Attorney direction on, and that is, a lot of these groups don't have any funding as such, although there is one group that is presently modifying a building in Golden Gate City to accommodate their needs. I have a concern, if these organizations charge a fee for people to come to those areas and then want to have reprieve on some of their leases, I don't think that's fair. But I thin k if it's an organization, let's say, of older people that get together and have card games and all they do is pay for the lights or whatever -- and it's not whether you call it profit or nonprofit -- that's my concern, that some of these groups be treated as a public group that meets regularly. But any organizations that are out there and have an annual due or have annual fees or charge an entrance fee for their -- for their -- for their property, I have some concerns over that one. Thank you. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yes, there's numerous examples out there, just so the public knows what we're talking about. Naples Zoo would be one, the Senior Center that Commissioner Halas referred to is another one. COMMISSIONER COYLE: It's Commissioner Coyle, please. COMMISSIONER COLETTA: Commissioner Coyle, forgive me. COMMISSIONER COYLE: Thank you. COMMISSIONER COLETTA: Children's museum. And every one of these, I don't think there has been a standard; is that correct, Mr. -- MR. KLATZKOW : No. They're all over the place. COMMISSIONER COLETTA: And what they were done is, Page 54 Agenda Item No. 12A October 27, 2009 Page 8 of 46 September 15, 2009 they were borne out of necessity for at that point in time for what was actually taking place. And trying to come up with one size fits all may never work. I know -- I have no problems with coming back with ideas, but I don't want them limited to a narrow scope. I'd like to be able to hear what was the possibility so we don't put ourselves in a box and we don't give away the county store. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. The issue here is, does the organization perform a public need? That's the primary criteria. It's a nonprofit organization that provides a valuable service to the people of Collier County. How they get their funding is entirely up to each of the organizations, and I wouldn't want to restrict them concerning the manner in which they raise their funding. But the intent of leasing this property to any of the nonprofits should not be for us to derive money from their operations. It should be to serve the people of Collier County. And whether we're talking about the Naples Zoo or we're talking about the children's museum or the Senior Friendship Center, we are talking about organizations that serve the people of Collier County. And we should not be trying to make a profit off of that. So that's the purpose, I think, of this exercise, to establish some standard so that when we have an opportunity to renegotiate the leases or if we negotiate a lease with the next organization, we're not treating them differently than other people. And, quite frankly, the Naples Zoo has been treated quite differently than anybody else, so I think we need to do something about that. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yes. And I think this is a worthy discussion, I really do. I don't mind bringing it back. But once again, I want to make sure the directions we give the County Attorney are -- encompass a wide range of subjects so that when we Page 55 Agenda Item No. 12A October 27, 2009 Page 9 of 46 September 15, 2009 come back here we haven't clearly defined what we want -- we don't want to define it to the point that we don't know what the other options are. There's differences in these organizations. Forgive me, some of them are well- endowed and they're doing a wonderful. job. The Marco Museum that's corning online that's going at the library property out there is a wonderful example. They've come up with the money to be able to build the building and everything else to be able to get it in place. And I'd hate to change anything on what's taking place there where we have to come up with county funds to do it. and The zoo originally started out as a for-profit-type entity, a they've morphed into something a little bit more that's nonprofit. Yes, their make -up has changed slightly. They're still a profit organization that's making a profit. I do think we have to put these things together, one, to be able to recognize the needs of these nonprofits that come out for a service to the community, but also protect the integrity of the taxpayers. CHAIRMAN FIALA: Okay. And I'll jump in here and say, I think what I hear from everybody is, they just want it to be fair, and we would like to have the county bring back something that would be fair to all of these organizations who serve our community. And I'm in agreement with that, bringing it back, come up with something that we can all consider. Commissioner Halas? COMMISSIONER HALAS: Okay. I think Commissioner Coletta said it very eloquently in regards to what we need to address here. My concern is that if there are groups out there that aren't paying their fair share, they need to step up to the plate, whether they're profit or nonprofit, that come before the county because of the budget crisis. And I'm not in a position to relinquish any funding that is -- was negotiated in prior years in regards to someone that needs to address that issue. So -- Page 56 Agenda Item No. 12A October 27. 2009 Page 10 of 46 September 15, 2009 CHAIRMAN FLkLA: Okay. So do I have -- COMMISSIONER HALAS: I'll bring it back, but like I said, I want to make sure that if there are groups out there that aren't being assessed and they are charging a fee, then they need to step up to the plate, okay, because we're obviously giving them land or whatever else that belongs to the taxpayers. CHAIRMAN FIALA: Okay. So do I need a motion then to bring it back? I've heard three -- three, four -- COMMISSIONER COLETTA: If I may help, I think we ought to just leave it as direction. Let them go through the minutes of the meeting. They can decipher what we're looking for. Because I mean, it's -- we could be 15 minutes trying to describe it, and I think we've already covered it. COMMISSIONER HALAS: Yep. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: What are we asking the County Attorney to do? COMMISSIONER HALAS: To look at this and give it a fair shake and then bring back something to us in regards to how the operation of each of these nonprofits is working. And if there's some nonprofits that aren't paying their share or haven't -- we haven't negotiated a contract with them, then I think we need to sit down with them and see what is favorable. COMMISSIONER COLETTA: Well, if I may, I think the direction goes a lot past that. That's part of it. COMMISSIONER HALAS: That's part of it. COMMISSIONER COLETTA: The whole thing is, is consider everybody's concerns up here. And when you bring back a report, maybe having different options that we can look at and taking all these concerns into consideration when you start to make a report back to us, rather than keeping the scope narrow, one direction or the other. MR. KLATZKOW: I understand. Page 57 Agenda Item No. 12A October 27, 2009 Page 11 of 46 September 15, 2009 COMMISSIONER HALAS: I could go along with that. COMMISSIONER COYLE: If you understand what you re supposed to do. MR. KLATZKOW: No, I understand. I'll come back -- I'll come back in executive summary, probably the first meeting in October, putting together a standard form lease. That's the easy part. The question is going to be policy considerations for the board, whether or not you want this on a going - forward basis, whether or not you want to offer this to existing users. You've got one in particular that pays a large amount of rent compared to everyone else, and you'll need to make a decision on that. But I'll give the board alternatives. And I will not put this on consent. It will be a regular agenda item for discussion purposes. CHAIRMAN FULA: Okay. COMMISSIONER COYLE: And if I could just add one thing. Whatever the County Attorney brings back to us, I will continue to challenge the concept that we are -- our purpose is to extract money from nonprofit organizations that serve Collier County. That is the wrong philosophy. If they are providing a service to the community, then we grant them a lease according to the standard terms of the lease, and we don't try to examine their sources of funding and require them to contribute some duty to the Board of County Commissioners to get that lease. The criteria, very simply, is, does a nonprofit organization provide services to the public which we think are beneficial? es or no? Then we can negotiate a lease with them. I just categorically reject the idea that we single out particular organizations from which we will extract money that we then intend to use for other purposes, and it just is not fair. So, nevertheless. CHAIRMAN FIALA: And let me just add. The higher we ask them to pay for rent or whatever on the land, the more they have to charge for admission so the less they can serve the public. So you Page 58 Agenda Item No. 12A October 27, 2009 Page 12 of 46 September 15, 2009 know, we have to keep that in mind, too. I think if our rents are all fair -- and maybe they can't be exactly equal, but reasonable, the public is the one that benefits. COMMISSIONER COYLE: That's right. The public winds up paying one way or the other. CHAIRMAN FIALA: Yeah, that's right. Who else? COMMISSIONER HALAS: Then as long as we can see a decrease in what it costs people to go to these events, that would be wonderful. CHAIRMAN FIALA: Sure. Commissioner Coletta? COMMISSIONER COLETTA: Just one side comment. I thought Commissioner Coyle's presentation was absolutely excellent. I'd like to borrow it and use it with inserting lime -rock roads in the place of nonprofits and space for non - profits. CHAIRMAN FIALA: Yes. We'll write that out for you. COMMISSIONER COLETTA: Thank you. COMMISSIONER COYLE: Well, we could include those in the direction to the County Attorney. Item #9F RESOLUTION 2009 -217: APPOINTING RICHARD RICE AND RE- APPOINTING BYRON MEADE, MICHAEL KLINE AND FRANKLIN SECREST; MOTION TO AMEND ORDINANCE TO ALLOW FOR AN ALTERNATE MEMBER -- APPOINTING FLOYD CREWS AS THE ALTERNATE MEMBER (PENDING ORDINANCE CHANGE) TO THE COLLIER COUNTY AIRPORT AUTHORITY — ADOPTED CHAIRMAN FIALA: We move on now to the appointment of members for the airport authority. COMMISSIONER COLETTA: Madam Chair, I make a -- Page 59 Agenda Item No. 12A October 27, 2009 Page 13 of 46 September 15, 2009 MS. FILSON: Madam Chair, I have two speakers on this one. COMMISSIONER COLETTA: I'm sorry. Speak up. MS. FILSON: I have two speakers on this item. CHAIRMAN FIALA: Okay. We'll hear from the speakers first. COMMISSIONER COLETTA: Then I'd like to make a motion if I may, please. MS. FILSON: Jim Murray. He'll be followed by Michael Klein. MR. MURRAY: Thank you. Good morning, Commissioners. I'm Jim Murray, a member of the Collier County Airport Authority Board. At yesterday's board meeting, the members unanimously reappointed Chairman Byron Meade and Vice - chairman Michael Klein to their positions. These are two of our most experienced boa rd members, both businessmen with business degrees, and we need to keep their leadership in place. The third incumbent spent his career as a captain for United Airlines responsible for flying 747 loads of people back and forth across the Atlantic. MR. KLATZKOW: Sir, may I interrupt you before you get yourself in trouble. This is a quasijudicial. COMMISSIONER COLETTA: We're not supposed to make -- MR. KLATZKOW: Recommendations are not appropriate. MR. MURRAY: Recommendations are not appropriate? MR. KLATZKOW: They are not appropriate, sir. MR. MUDD: Okay. In that case, thank you for the time. MS. FILSON: The next speaker is Michael Klein. MR. KLEIN: Thank you. Good morning, Commissioners. Thank you for this -- just very briefly, since I'm up for reappointment. I wanted to thank you for the opportunity to serve on the board, and mostly I .wanted to applaud the commissioners for their foresight in of and supporting these citizen boards where we have a lot o Page 60 Agenda Item No. 12A October 27, 2009 Page 14 of 46 Y b. c cD z n C o B 0 0 0 0 c� D c� �z d o -• m . O n 'D ono 0 O 0 n b W N � vi p rA CD �- C O vtni ar n 0 W O O �� "• p CD � O r.' to tz rp CD rp 0 r. CD to CD W. .•t �+� r• w CD .y CD Cl O O �• CD CL M J" Ca Agenda Item No. 12A October 27, 2009 Page 15 of 46 rh w w n 0 EA CD CD Ln 00 CD 0 y CD Vl Ga CD e-r -i O CD CD U0 CD O w tA "C1 A 4M CA CCCD ��... 'd (pr p� y „�D V"" y frD "h fD 3.'Ci (D 'b a0. C/� V� °i 'Cy ry' C y rn i/1 v+ (p ^� b y ?" to w�A y `° a.yn w ° 0 ° Er CD CD y CD .y p CD :x � y• .+ y CD F. � � � CD � � .� d I'�... � � CAD CD 0 �!• rFO�i` �p A: n :7. O 'i y f�J (9 m D �• CD w CD CD R. y • ,CT CD p Agenda Item No. 12A October 27, 2009 Page 16 of 46 � d a b A m r 00 oq � M .� A e� J G. Q n A .y W � O A � v �0 W b B b9 � a fyyD a o � � � b A 0 wCD O C cv (OD o p N n O0 b O C. O `.. c�D CD n op O U0 y C CD O 0 o 'd CL o ° n Lei ��' a� o =• ar too, o Ch � B o y ° Ln CD p a Ln a s o Agenda Item No. 12A October 27, 2009 Page 17 of 46 a �• o rs. � d c � �, � a CL �, A 000 CD Mr CD � to �. O p,• p � �• '"ti OCD O _ _ r n ' p C 1p E" "C7 BCD "O W ~ O �-►i �� b9 foe p p 0 CD cc u0. A� - 0 5 z t,C [A y �.. �< C) to CA QQ' ' (CD � �3' ° C9 e d IA f�9 CCDD b G (� ry GS. o+ in = j q c �c no o CO a CD °, .b a' o °*. o °�oroa rA grA . < .-•a CD w g i0q o oa'c LA E 0 a o p o ti CD a CL C6 N Agenda Item No. 12A October 27, 2009 Page 18 of 46 Q. � .�j A' C�•j Q+ CD .A. l �> W� mom q �. O Or ON C9• Gr � C�D � A, O N �; O CD Cyr 't. '' � �w CD ;; ': p CD 00 CD .O+ CCDD O 1=6 CD y "o O n � o � CD Cd e� r" PC r Cr rn CD — '' F o o = o c CD CD w . C) to 0, C4 CD CD fCA fCDD 0 QQ A � .0 O � a .b `moo CL W� =� L03 L.0 ¢.lip Co N O o "0 Co CD CL w " CA y C7 A vii CD ,� 0 O CD .► G' O CD � W Vj O CD CD Co S dOQ CD .O. ► O u �. O CD O Agenda Item No. 12A October 27, 2009 Page 19 of 46 ti All � W Z. �p°� a b O Q rt to �o a o�, rb m tj O O � O co � r• � p, � C O � r • y CD r+ f R CD CA p in n N Co y fD p .�•+ 'L1 p T� e� CIO w O p 0 0 v' p I'�p C f9 y CD 1w p � � "SUM CL h La y y ro Agenda Item No. 12A October 27, 2009 Page 20 of 46 o. a,, < ►-i ��aAO r'Yom� CD 0 CD 00 A w Ln CL O A 0 d O CD BCD' rA y CD � o c� a c O � 'CD :3 [D C d b go A� p m 1 CN u Q- o D 0 `�• ° CD f .,� (1, CAA r. w CD rn n to � v� ". Am �' (D ' fD ° 0 ° M � P+ CD O a e o = � CD cy o. y O `cs p D• n p ..F rA M y 4EA -4 CD CD Vi tD (D O ` kV CD n ^' r1i ° p :3 1 A CD O Cr `C CD C CD CD _O G. Agenda Item No. 12A October 27, 2009 Page 21 of 46 r a. C]. CD .�+ CD _o A w O til D O O � C1 � Cn 00 J N 0 w D � m O o fl G a O CD rA r C CtD � eD rA cn . r �S � O CO CD O iCr v O O as g �, a° a y pro b ,rCn C QQ Co O CD C C O `C O E " rA p -t rn cD n G. P? cOp�� .-. to fD �• d D O "� C O CD lA CL ' n CD ~ ' C4 Agenda Item No. 12A October 27, 2009 Page 22 of 46 COLLIER COUNTY STANDARD FORM LONG -TERM LEASE NOT - FOR - PROFIT ENTITY This Long -Term Lease (hereinafter referred to as "Lease ") is entered into this day of 20__, , by and between a not for profit corporation duly organized under the laws of whose mailing address is , hereinafter referred to as "Lessee ", and Collier County, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112, hereinafter referred to as "Lessor," collectively stated as the "Parties." RECITALS: WHEREAS, Florida Statutes Section 125.38 pre that if a ; corporatbt�, or other organization not for profit which may be organized for the pis of emoting community interest and welfare, should desire any real or personal pert y ie m,r;; be owned by any county of this state or by its board of countymmissioners, 1r public or -community interest and welfare, then such corporation or''orgatsiion may apply to the board of county commissioners for a conveyance or lease of such property, and that sw1h board, if satisfied that such property is required for such use and is not needed for county, purposes, may thereupon convey or lease the same at private sale tt : jhexplicaut,,for such price, whether nominal or otherwise, as such board may fix, regardless of the actual valu"ie" such property; and WHEREAS, Lessee, a duly orgahed not - for -profit corporation, has applied to the Board of County Commissioners for a Lease of iertain property which the Board has determined is not presently needed for County purposes; and WHEREAS, it is the Board's finding fat it is in the public interest to lease this property to Lessee on the terms and conditions set fort.Kbelow. WITNESSETH: NOW, 'IEFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideratiofi ._,exchanged amongst the Parties, and in consideration of the covenants contained herein, the ` hereby enter into this Lease on the following terms and conditions: 1. Conveyance. On the terms and conditions set forth in this Lease, and in consideration of Lessee's performance under this Lease, the Lessor conveys to the Lessee the present possessory interest in the Leased Premises described below. 2. Description of Leased Premises. The Leased Premises which is the subject of this Lease is a parcel improved with a building located at , Collier County, Florida, with a legal description set forth in Exhibit "A," hereinafter referred to as the "Premises." Page Iof12 Agenda Item No. 12A October 27, 2009 Page 23 of 46 3. Conditions to Conveyance. Lessee warrants and represents to Lessor that it has examined the title and boundaries of the Premises. Accordingly, this conveyance is subject to all of the following: a. Any and all conditions, restrictions, encumbrances and limitations now recorded against the Premises; b. Any and all existing or future zoning laws or ordinances; c. Any questions of title and survey that may arise in the future; and d. Lessee's satisfactory performance of all terms andnditions of this Lease. 4. Use of Premises. The purpose of this Lease is ='IUssee to operate a which use the Board of County Commissioners found to be in the public's interest. Accordingly, Lessee shall utilize the Leased Premises r stri taccordance with Exhibit "B." Lessor shall have the right to terminae this Lease shield Les , utilize the Premises in any manner inconsistent with the approved tls eta the event Lessee s''cease to use the Premises for the purposes described in Exhibit "B," a :such cessation of use shall continue for a period of sixty (60) days, this Lease, at the option of 66.1- r, upon thirty (30) days written notice to the Lessee, shall be giWoftd and Les' shall surrender and vacate the Premises to the Lessor within thirty (30) days her notice of such termination. Provided, however, said sixty (60) day period shall. ;be tolled itsuch cessation is r sed by events beyond the control of the Lessee such as acts�-44. . God or, if such cessation is due to closing for reconstruction or repairs to the building cartst tod by the Leased Premises. 5. Permissi Altern 66:;=-d Addffibbs to Premises. Lessee may not make any alterations or additions the Leased ,es wA64 obthining Lessor's prior written consent, which consent may be,withheld in Lessor % - ole disc on. Lessee shall submit to Lessor plans and specifications for ail alterations and additions at the time Lessor's consent is sought. 6 Term of Le. The term of this Lease shall commence on the date first above written,, and unless terminated earlier by theTarties, shall terminate on the 30th year anniversary date of this Lease. There is no option to renew. If Lessee holds over after the expiration of the lease term, ;such tenancy shall be from month to month under all of the terms, covenants and conditions o#' i 'lease subject, however, to Lessor's right to seek legal relief to eject Lessee from the Premrsl114s a holdover. 7. Rent. ':lfessee agrees to pay the Lessor the sum of $1.00 per annum, in advance, for each year Yc`the term. 8. Net Lease. This is a fully net lease, with Lessee responsible for all costs, fees and charges concerning the Premises. Accordingly, Lessee shall promptly pay when due and prior to any delinquency all costs, fees, taxes, trash removal services, assessments, utility charges, impact fees and obligations of any kind that relate to the Premises. Lessee will indemnify and hold Lessor harmless from any and all claims, costs and obligations arising from Lessee's use of the Premises. In case any action or proceeding is brought against Lessor by reason of Lessee's use of the Premises, Lessee shall pay all costs, attorneys' fees, expenses and liabilities resulting Page 2 of 12 Agenda Item No. 12A October 27, 2009 Page 24 of 46 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. 9. Lessee's Liens and Mortgages. Lessee shall not in any way encumber the Premises, and shall promptly remove any and all liens placed against the Premises. All persons to whom these presents may come are put upon notice of the fact that the interest of the Lessor in the Premises shall not be subject to liens for improvements made by ;the Lessee and liens for improvements made by the Lessee are specifically prohibited frorntaching to or becoming a lien on the interest of the Lessor in the Premises or any part of 00016t, This notice is given pursuant to the provisions of and in compliance with Section 713.10, F1 Statutes. 10. Lessee's Obligation to Maintain Premises and CgkRly Jmtb All Lawful Requirements. Lessee, throughout the term of this Lease, at its own cost, amd without any expense to the Lessor, shall keep and maintain the Premises in good, sanitary and", feat order, condition and repair, and shall abide with all lawful requirements. Such maintenance and repair shall include, but not be limited to, painting, janitorial, figures and sppu rtenances (lighting, heating, plumbing, and air conditioning). Such repair may also include structural repair, if deemed necessary by the Lessee. If the Premises ar'e not in such compliance in the reasonable opinion of Lessor, Lessee will be so advised in writing. If corrective fiction is not begun within thirty (30) days of the receipt of such notice and pt?osecuted diligently until corrective action is completed, Lessor may cause the same to 'be cad d Lewe shall promptly reimburse Lessor for the expenses incurred by Lessor, toer with a S°tnministrative fee. 11. Quiet EWoyment. Lessee shall be eri ltled to quiet enjoyment so long as Lessee has not defaulted on ar$., of the terms of this'Lease. Accordingly, Lessee shall have the exclusive right to use the Premiss during the term of :;this Lease. During the term of this Lease, Lessee may erect appro.priate s rage on the Leaset� Premises and the improvements constructed by Lessee ther�ih Any soh:, signage shall hi in compliance with all applicable codes and ordinances. 1 Casu& --Y- and Condemnation a, Casualty. If the Premises are destroyed, rendered substantially inhabitable, or damaged to any material extent, as reasonably determined by Lessee and Lessor, by fire or other casualty, and Lessee must use the insurance proceeds, hereinafter referred to as "Proceeds," to rebuild or restore the Premises to substantially its condition prior to such casualty event unless the Lessor provides the Lessee with a written determination that rebuilding or restoring the Premises to such a condition with the Proceeds within a reasonable period of time is impracticable or would not be in the best interests of the Lessor, in which event, Proceeds shall be shall be promptly remitted to Lessor. If the Lessor elects not to repair or replace the improvements, then Lessee or Lessor may terminate this Lease by providing notice to the other party within ninety (90) days after the occurrence of such casualty. The termination will be eflfective on the ninetieth (90th) day after such fire or other casualty, unless extended by mutual written agreement of the Parties. During the period between the date of such casualty and the date of termination, Lessee will cease its operations as may be necessary or appropriate. If this Page 3 of 12 Agenda Item No, 12A October 27, 2009 Page 25 of 46 Lease is not terminated as set forth herein, or if the Premises is 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 Premises to substantially the condition as existed prior to the casualty. b. Condemnation. Lessor may terminate this Lease as part of a condemnation project. Lessor will use its best efforts to mitigate any damage caused to Lessee as a result of such termination; however, in no event will Lessor be liable to Lessee for any compensation as a result of such termination. 13. Access to 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 Premises during normal business hours, or such other`timeti with the consent of Lessee, to inspect the Premises, verify compliance with the terms of this Leese, or make any required repairs not being timely completed by Lessee. 14. Termination and Surrender. Unless otherwise i A I agreed by the Parties, within thirty (30) days after termination of the lease term, I..cssee iEliver possession of the Premises to Lessor in good condition AW Lessee X11 have the =right at any time during Lessee's occupancy of the Prerx es to ret a any of its � sonal property, equipment, and signs provided, however, at the Wb ination of;his Lease, Less+ , s' all have the option of either requiring Lessee to demolish and remove a11_ improvements`'' made by Lessee to the Premises upon Lessee's vacation thereof, or """to require . , a ►: rcuin said improvements with fixtures on the Premises which , inwrovements and fixtures""" 1 become the property of the Lessor upon Lessee's vacation of the Fr+xises. 15. Assi ' nt. This Lease is Mortal t© Lessee. Accordingly, Lessee may not assign this Lease or stmt any portion of ` building constructed on the Premises by Lessee without the ess pnw a� written consent 6"f"' the Lessor, which consent may be withheld in Lessor's sole discretion. Any, purported assiggment or sublet without the express written consent of Lessor shall be considered void from its'nception, and shall be grounds for the immediate termination of this Lease. Lessor may freely assign this Lease upon written notice to Lessee. 16. surance. a. Lee shall provide and maintain a Commercial General Liability insurance policy, appro;;in writing by Lessor and the Collier County Risk Management Department, far"'not less than Three Million and 001100 Dollars ($3,000,000.00) combined single limits during the term of this Lease. If such amounts are less than 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 Page 4 of 12 Agenda Item No, 12A October 27, 2009 Page 26 of 46 Employer's Liability with a minimum limit of One Hundred Thousand and 00 /100 Dollars ($100,000.00) per each accident. If such amounts are less than good insurance industry practice would require, Lessor reserves the right to increase these insurance limits by providing Lessee with at least sixty (60) days' advance notice to do so. c. Lessee shall also maintain standard fire and extended coverage insurance on the additions and improvements located on the Premises and all of Lessee's property located on or in the Premises including, without limitation, furniture, equipment, fittings, installations, fixtures (including removable trade fixtures),,; , personal property and supplies, in an amount not less than the then - existing full replment value. d. Business Automobile Liability Insurance, and ,mess Boat Liability Insurance, for automobiles and boats used by Lessee in the '41u1f its performance under this Lease, including Employer's Non - Ownership and Hlrpd Auto Coverage, each said policy in amounts of One Million and 00/100 Dollars ($TQ 00,0 1 Cl IQ) combined single limit per occurrence. If such amounts are" less �, gpod in*ance practice would require, Lessor reserves the right to increase these :mi sdii .Wliv g_. ?y providing Lessee with at least sixty (60) days' advance notice to do so. e. Pollution Liability insurance covering the accidefiW discharge and clean up of pollutants shall be maintained b o i!. a Lessee -in an amount of mot less than Five Million and 00 /100 dollars ( $5,000,000) per occurrence. Such coverage shall cover third party liability and clean up coverage. f. Lessor shall be named. As an additional insured on the Commercial General Liability insurance policy. Lessor;? shall also be added as an additional insured on the Property Insurance policy as theiri n.terest may appear. The above- described insurance policies shall );, and continuously maintain Lessor as an additional insured thereon. Evidence of sub Insurance shall be provided to Lessor and the Collier County Risk Management 13ep�t ent, 3301 East' Tamiami Trail, Administration Building, Naples, FI(irida, 34112, for ayal prior to the commencement of this Lease; and shall include a }cvision requiring not ie'ss tom. 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 good insuran.= practice would require, Lessor reserves the right to reasonably amend their insurancercyuirements by issuance of notice in writing to Lessee, whereupon receipt of such noticehessee shall have thirty (30) days in which to obtain such additional insurance. Ai1is $sner 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 an endorsement to the effect that the issuer waives any claim or right of subrogation to recover against 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. Page 5 of 12 Agenda Item No_ 12A October 27, 2009 Page 27 of 46 17. 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: i. Abandonment of Premises or discontinuation of Lessee's operation. ii. Lessee's material misrepresentation of any matte.rrelated to this Lease. iii. Filing of insolvency, reorganization, plan or att�ttgement of bankruptcy. iv. Adjudication as bankrupt. V. Making of a general assignment of the benefit a> moors. 11 .i:::� vi. If Lessee suffers this Lease to be taken under au .wY �,� 0. f gxecution and/or other process of law or equity. vii. Lessee's loss of its federal IRS tak exempt status viii. Lessee's failure to utilize the l>temimces Wset.forth in,xhibrt ix. Any lien is filed against the Premise or ms's interest therein or any part thereof in violation of this Lease,""" otherwisFi, aid the same remains unreleased for a penodi.+4f swty (60) days from the dite of filing unless within such period Lessee is °e'ontesting in goad faith the validity of such lien and such lien is appropriately bonded. X. Failure of Lessee to perform or comply with any material covenant or condition trade under this Lease, whi*.&flure is not cured within ninety (90) ,:dA ys from receipt of Lessor's written notice stating the non - cotnpliance 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 Lessor as being reaspoably required to correct such default). However, the occurrence of any of the ;events set forth above shall constitute a material breach and default by' Tsee, and this Lease may be immediately terminated by Lessor except to the extent then prohibited by law. b'`Fkemedies of Lessor. i to a event of the occurrence of any of the foregoing defaults, Lessor, 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 Premises. 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) Page 6 of 12 Agenda Item No. 12A October 27, 2009 Page 28 of 46 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. ii. 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 percent (5 %) of each such payment not paid promptly and in full when due. Any amounts not paid promptly when due shall also accrue compoded interest of two (2 %) percent per month or the highest interest rate allowed by Florida law, whichever is higher ( "Default Rate "), which '`i , shall be promptly paid by Lessee to Lessor. iii. Lessor may sue for direct, actual damages arising .out of A" default of Lessee or apply for injunctive relief i ,appear necessary �r esirable i, , to enforce the performance and obse3tvait+ a elf i any Aligatiori agreement or covenant of Lessee under this Leas, or o se. Lessor shall be entitled to reasonable attrarneys fees and;_ costs incurred arising out of Lessee's default under this Lease. c. Default by Lessor. Lessor shall in no event be charged with default in the performance of any of its obligations hereunder unless d until Lessor shall have failed to perform such obltions within thirty (30) days''`'(ar such additional time as is reasonably required to correct such default) after written notice to Lessor by Lessee properly and in itieaningful detail specifying wherein, in Lessee's judgment or opinion, Lessor has failed ',to perform any such obligation(s). d Rem s of Lessee. In pW.Ual consideration for the nominal rent charged to Lessee hby waives any claim it may have to direct or indirect monetary es it incurs as a insult of Lessor's breach of this Lease, and also waives any claim it have to attorneYs' fees and costs arising out of Lessor's breach of this Lease. s remedies for Lessor's default under this Lease shall be limited to the following: is ;! ';; For injunctive relief as may appear necessary or desirable to enforce the ,.Performance and observance of any obligation, agreement or covenant of r under this Lease. ii. 1Asee may cure any 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, with no interest. 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 Page 7 of 12 Agenda Item No. 12A October 27, 2009 Page 29 of 46 this Lease 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 Lease by Lessee and Lessor. No waiver by Lessee or Lessor of any breach of any provision of this Lease 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 provisior,,,irrespective of the length of time that the respective breach may have continued. Miscellaneous Legal Matters 18. This Lease shall be construed by and. controlled under de laws of the State of Florida. In the event of a dispute under this Lease, Elie Parfies .shall first use the C6 's then - current Alternative Dispute Resolution Procedure. Following thi �h ion of this procedure, either party may file an action in the Circuit Court of Collier County to a the terms of this Lease, which Court the Parties agree to have 1 . ele and exclusive jurisdictiof'. 19. This Lease contains the + utire agreement of the Parties v respect to the matters covered by this Lease and no other agr`040w, t, statement or promise made any party, or to any employee, officer or agent of any party, wln°h is not cntd ;:this Lease shall be binding or valid. Time is of the essence m the doing, per�O*ance and observation of each and every term, covenant and condition of this Lease by; the Parties. 20. In the event state or federal Taws are enacted after the execution of this Lease, which are applicable to od preclude in whole or in part the Parties' compliance with the terms of this Lease,.,:! in in s event this Lease shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Lease. 21 Except as otherwise provided herein, this Lease shall only be amended by mutual written consent of the Parties hereto or by their successors in interest. Notices hereunder shall be given to the Parties set forth below and shall be made by hand delivery, facsimile, overnight delivery or by regular mail. If given by regular mail, the notice shall be deemed to have been given within a reIq time if deposited in the U.S. Mail, postage prepaid, within the time limit. For the purpose of c i aftng time limits which run from the giving of a particular notice the time shall be calculat$d from actual receipt of the notice. Time shall run only on business days which, for purposes of this Lease shall be any day other than a Saturday, Sunday or legal public holiday. Notices shall be addressed as follows: If to Lessor: County Manager Collier County Manager's Office 3301 East Tamiami Trail Naples, Florida 34112 Page 8 of 12 Agenda Item No. 12A October 27, 2009 Page 30 of 46 CC: Real Property Management 3301 Tamiami Trail Building W Naples, Florida 34112 If to Lessee: Notice shall be deemed to have been given on the next successive usies: day to the date of b the courier waybill if sent by nationally recognized overnight delivery service 22. Lessee is an independent contractor,` and ii hdt.any agent or representative or employee of Lessor. During the term of this Lease, neither Lesse+ed ranyone acting on behalf of Lessee, shall hold itself out as an employee, servant, rVpreseniWive or agent of Lessor. Neither party will have the right or authority to bind the otherr> party without express written authorization of such other party to any obligation to any third party;,. No third party is intended by the Parties to be a beneficiary of this Lease or to have any rights o;force this Lease against either party hereto or otherwise. Nothing epntained in this Lease will constitute the Parties as partners or joint ventures for any purpose, it being the dipmu 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?ghts or privileges. 21, Neither partytit this Lease will be liable for any delay in the performance of any obligation under this Lease or of inability to perform an obligation under this Lease if and to the extent that such delay in performance or inability to perform is caused by an event or circumstance bcyand the reasonable control of and without the fault or negligence of the party claiming Force aajeure. "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 of °embargo, civil strike, work stoppage, slow -down or lock -out, explosion, fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, and the binding order of any governmental authority. 24. Lessee will not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous Materials upon or about the Leased Premises, nor permit employees, representatives, agents, contractors, sub - contractors, sub- sub - contractors, material men and/or suppliers to engage in such activities upon or about the Leased Premises. Page 9 of 12 Agenda Item No. 12A October 27, 2009 Page 31 of 46 25. 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. 26. Lessee shall execute this Lease prior to it being submitted for approval by the Board of County Commissioners. This Lease may be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after -t a County enters into this Lease, at Lessee's sole cost and expense. IN WITNESS WHEREOF, the Lessee and Lessor have heretb e ' ' 'I d this Lease the day and year first above written. if AS TO THE LESSEE: Witness (signature) (print name) Witness (signature) (print name) ".7 . Approved as to form and legal sufficiency: , Deputy Clerk Jeffrey A. Klatzkow, County Attorney By ('t } BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA LE DONNA FIALA, CHAIRMAN Page 10 of 12 Agenda Item No. 12A October 27, 2009 Page 32 of 46 EXHIBIT A [Insert Legal Description) Page 11 of 12 EXHIBIT B [Insert list of proposed uses] Page 12 of 12 Agenda Item No. 12A October 27, 2009 Page 33 of 46 Agenda Item No. 12A October 27, 2009 Page 34 of 46 COLLIER COUNTY STANDARD FORM LONG -TERM GROUND LEASE NOT- FOR - PROFIT ENTITY This Long -Term Ground Lease (hereinafter referred to as "Ground Lease ") is entered into this day of , 24 , by and between a not for profit corporation duly organized under the laws of whose mailing address is hereinafter referred to as "Lessee ", and Collier County, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112, hereinafter referreds, "Lessor," collectively stated as the "Parties." RECITALS: WHEREAS, Florida Statutes Section 125.38. provides that if a rporation or other organization not for profit which may be organized for the purposes; of pr citing community interest and welfare, should desire any real or personal propertty that may be tywned by any county of this state or by its board ofelDunty commissioners, €oX pubBc or community interest and welfare, then such corporatran'or organization may, apply 10 the board of county commissioners for a conveyance or lease of such property, aid that such board, if satisfied that such property is required for such use and is not needed for!cAUnty purposes, may thereupon convey or lease the same at ,private sale to the applicant for such price, whether nominal or otherwise, as such boa**Oix, regardless the actual vAlue of such property; and WHEREAS, Lessee, a duly org zed not:for- profit corporation, has applied to the Board of County Commissioners for a Grouid; Lease of certain property which the Board has determined is.not presently needed for Court purposes; and WMREAS, it is the'Board's finding, that it is in the public interest to lease this property to Lessee on the terms and con tt ons set forCh;below. WITNESSETH: NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the Parties, and in consideration of the covenants contained herein, the Parties hereby enter into this Ground Lease on the following terms and conditions: 1. Conveyance. On the terms and conditions set forth in this Ground Lease, and in consideration of Lessee's performance under this Ground Lease, the Lessor conveys to the Lessee the present possessory interest in the Leased Land described below. 2. Description of Leased Land. The Leased Land which is the subject of this Ground Lease is located at , Collier County, Florida, with a legal description set forth in Exhibit "A," hereinafter referred to as "Leased Land." Page 3 of 13 Agenda Item No. 12A October 27, 2009 Page 35 of 46 3. Conditions to Conveyance. Lessee warrants and represents to Lessor that it has examined the title and boundaries of the Leased Land. Accordingly, this conveyance is subject to all of the following: a. Any and all conditions, restrictions, encumbrances and limitations now recorded against the Leased Land; b. Any and all existing or future zoning laws or ordinances; c. Any questions of title and survey that may arise in the future; and d. Lessee's satisfactory performance of all terms and conditions of this Ground Lease, 4. Use of Leased Land. The purpose of this Ground; is for Lessee to operate a which use the Board of County Commmissionfts has found to be in the public's interest. Accordingly, Lessee shall utilize the Leased Lard 'in itrict accordance with Exhibit "B." To effectuate this use, Lessee is to construci.tbuildi0ea s set forth below. Lessor shall have the right to terminate this Ground. Lease should Leine utilize:lhe Leased Land or the Building (referred to collectively hereinafter as the "Proms ") ;any mangy inconsistent with the approved use. In the everd Ewe, shall cease to use l= Promises for the purposes described in Exhibit "B," and such satron al"iluse shall c t# nue for a p ad of sixty (60) days, this Ground Lease, at the option of te;Lessor, . ian thirty (30 days written notice to the Lessee, �` shall be terminated and Lessee shall surrender a0 vacate the Presses to the Lessor within thirty _. (30) days after notice of s� rmination. x :however, said,�xty (60) day period shall be tolled if such cessation i Bi tt y events ,n rend the con`#ri- of the Lessee such as acts of God or if such cessation i i$ue to closing for recor ction or reps to the building constructed by Lessee on the Leasedlwand. 5 ° Lessee's, Obligation to Build d Modifications to Building. Lessee shall design, permit and construct in 'ciompliance with AT!. governmental regulations, at its sole cost and expense, a building to be solely utilized for the uses described in Exhibit "B." The plans, specifications and building design for the Lessee's improvements to be constructed on the Leased Land-are sulaj t to reasonable approval by Lessor. Prior to applying for any building permit for imprivents to the Leased Land, Lessee shall submit to Lessor for its approval such plans and specifrions necessary to obtain a building permit for Lessee's intended improvements. Less;,shall have thirty (30) days after receipt of any submittal by Lessee to review Lessee's submits and provide a written response as to whether the submittal is approved as submitted, ndf proved as submitted, or Lessor may provide Lessee with requested changes. If the submittal is not approved or if Lessor requests changes, Lessee shall submit revised plans that will meet with Lessor's approval or incorporate the requested changes into the plans. If Lessee determines not to revise its plans then Lessee may terminate this Ground Lease. Lessee may make nonmaterial changes to the approved plans from time to time to accommodate site issues or operating changes to Lessee's use of the Leased Land. Material changes from the approved plans will require Lessor's written approval, which approval shall not be unreasonably withheld. All plans shall be in conformity with Collier County standards. Construction must commence no later than one year from the date of this Ground Lease. In the event Lessee does not commence construction within such period, then the Lessor shall have the right to terminate Page 2 of 13 Agenda Item No. 12A October 27, 2009 Page 36 of 46 this Lease and neither earty shall have any further obligations to the other party. Upon commencement of construction, Lessee shall diligently pursue said construction to completion and complete said construction on or before twenty -four (24) months from commencement, subject to delays beyond the control of the Lessee. Lessee shall be solely responsible for the costs of repairing any damage to Lessor's roads, water and sewer facilities or other infrastructure located within or outside the Leased Land resulting from construction or use by Lessee, its agents, officers or employees. Lessee must demonstrate to Lessor that it has sufficient funds necessary to complete any proposed project, and Lessor may require, as part of its approval, the posting of a construction bond or like security to assure completion of the proposed project. 6. Term of Ground Lease. The term of this Cd Lease shall commence on the date first above written, and unless terminated earlier by ther;Ya ies, shall terminate on the 35" year anniversary date of this Ground Lease. There is no optraa to ieew. If Lessee holds over after the expiration of the lease term, such tenancy shall be frorrt_�mortt;to month under all of the terms, covenants and conditions of this Ground Lease subject, h6""' r', -to. Lessor's right to seek legal relief to eject Lessee from the Premises as a it Idover. 7. Rent. The Lessee agrees to pay the Lessors sum of $1.00 per annum, in advance, for each year of the term. 8. Net Lease. This is a fully net lease, with Lessee: responsible "for all costs, fees and charges concerning the Premises. Accordingly, Lessee shall promptly pay when due and prior to any delinquency all costs, fees, taxes, trash removail :"vices, assessments, utility charges, impact fees and obligations Of any kind that relate to the Premises ,,., Lessee will indemnify and hold Lessor harmless fromriy and all claims, costs and obligatror>arising from Lessee's use of the Premises. In case any action or proceeding is brought against Lessor by reason of Lessee's use of the Premises, Les*0 shall pay all costs, attorneys'. fees, expenses and liabilities resulting therefrom ate }shall did such action or .proceeding'if Lessor shall so request, at Lessee's expense, by` counsel reasrpt>!ably satisfactory tai Lessor. It is specifically agreed however, that Lessor -1y at its own cost aid _expense participate in the legal defense of such claim, with legal counsel ofiU choosing, 9. Lessee's Liens and Mortgages. Lessee shall not in any way encumber the Premises, and shall - omptly remove any and all liens placed against the Premises. All persons to whom these presen may come are put upon notice of the fact that the interest of the Lessor in the Premises shall not`beroubject to liens for improvements made by the Lessee and liens for improvements made by the;'Lessee are specifically prohibited from attaching to or becoming a lien on the interest of the Lessor in the Leased Land or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713. 10, Florida Statutes. 10. Lessee's Obligation to Maintain Premises and Comply with All Lawful Requirements. Lessee, throughout the term of this Lease, at its own cost, and without any expense to the Lessor, shall keep and maintain the Leased Land, including any buildings and improvements thereon, in good, sanitary and neat order, condition and repair, and shall abide with all lawful requirements. Such maintenance and repair shall include, but not be limited to, painting, janitorial, fixtures and appurtenances (lighting, heating, plumbing, and air Page 3 of 13 Agenda Item No. 12A October 27, 2009 Page 37 of 46 conditioning). Such repair may also include structural repair, if deemed necessary by the Lessee. If the Premises are not in such compliance in the reasonable opinion of Lessor, 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 promptly reimburse Lessor for the expenses incurred by Lessor, together with a 5% administrative fee. 11. Quiet Enjoyment. Lessee shall be entitled to quiet enjoyment so long as Lessee has not defaulted on any of the terms of this Ground Lease. Accordingly, Lessee shall have the exclusive right to use the Premises during the term of this Lease. During the term hereof, Lessee may, in its sole discretion, improve, alter, maintain, or repo rAte the Building constructed by Lessee on the Leased Land. Any such work may be undertaken by Lessee at any time or times during the term hereof and no consent or approval of Lessor email be :required unless such work consists of major alterations from plans and specifications originatiy approved by Lessor as more fully provided for herein. Lessor agrees to co- operate with Lessee in Connection with such construction and agrees to execute any documents required by : govental authorities evidencing Lessee's rights hereunder and consenting to `�h work,,, During the term of this Ground Lease, Lessee may erect appropriate signage on the lu,d Lanai and thei€rnprovements constructed by Lessee thereon. Any stmt[gnage shalt ',:be in b�,plxa�ce with all applicable codes and ordinances. 12. Casualty and Condentation a. 'f'tile Premises,toe destroyed, xec dered substantially inhabitable, or damaged to i ?-'material ex0, as reaswably deterniE eci by Lessee and Lessor, by fire or other case y, and Lessee rout „use th6 insurance proceeds, hereinafter referred to as "Proceeds,” t6 build or restore IW-,.,Premises to substantially its condition prior to such casutajty- event u7iailcss the Lessor provides the Lessee with a written determination that rebuilding or reswring the Premised 'to such a condition with the Proceeds within a reasonable period of tjrne is impracticable or would not be in the best interests of the Lessor, in which event, Proceeds shell be shall be promptly remitted to Lessor. If the Lessor elects- not to repair or replace the improvements, then Lessee or Lessor may terminate this Ground Lease 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 die �rties. During the period between the date of such casualty and the date of termination ssee will cease its operations as may be necessary or appropriate. If this Ground Lease is not terminated as set forth herein, or if the Leased Land is 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 Leased Land to substantially the condition as existed prior to the casualty. b. Condemnation. Lessor may terminate this Lease as part of a condemnation project. Lessor will use its best efforts to mitigate any damage caused to Lessee as a result of such termination; however, in no event will Lessor be liable to Lessee for any compensation as a result of such termination. Page 4 of 13 Agenda Item No. 12A October 27, 2009 Page 38 of 46 13. Access to 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 Premises during normal business hours, or such other times with the consent of Lessee, to inspect the Premises, verify compliance with the terms of this Ground Lease, or make any required repairs not being timely completed by Lessee. 14. Termination and Surrender. Unless otherwise mutually agreed by the Parties, within thirty (30) days after termination of the lease term, Lessee shall redeliver possession of the Premises to Lessor in good condition and repair. Lessee shall have the right at any time during Lessee's occupancy of the Premises to remove any of* personal property, equipment, and signs provided, however, at the termination of this Gtl :Lease, Lessor shall have the option of either requiring Lessee to demolish and remove all u ipt :Wnents made by Lessee to the Leased Land upon Lessee's vacation thereof, or toequrrrei''Lessee to retain said improvements with fixtures on the Leased Land which improve t' is aad fixtures will become the property of the Lessor upon Lessee's vacation ofthe.Premises. 15. Assiznment. This Grouad,Lease is personal a. ee. A., ccordm Lessee may not assign this Ground Lease or subi+€ portion idi of the bu ctructed on the Leased Land by Lessee without the express prior write consent 0f,the Lest, rich consent may be withheld in Lessor's sole discretion.: Any purported assignn t or sublet without the express written consent of Lessor shall be co"n's"'idered void from its ine on, and shall be grounds for the immediate termination of this Lease L ear�may freely assign fps Lease upon written notice to Lessee. 16. Insurance. a. Lessee shall provide and maintain a Commercial General Liability insurance policy, approved, in writing by Lessor and the Collier County Risk Management Department, for n6t, .:less than Three; Million and 00 /100 Dollars ($3,000,000.00) coral ned sin&l ,limits during the teem of this Ground Lease. If such amounts are less than good instce industry practice would require, Lessor reserves the right to increase these insv limits by providing Lessee with at least sixty (60) days' advance notice to do so. b. In a"' 'tion, 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 and 00 /100 Dollars ($100,000.00) per each accident. If such amounts are less than 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 Leased Land and all of Lessee's property located on or in the Leased Land including, without limitation, furniture, equipment, Page 5 of 13 Agenda Item No. 12A October 27, 2009 Page 39 of 46 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 Ground Lease, including Employer's Non - Ownership and Hired Auto Coverage, each said policy in amounts of One Million and 00 /100 Dollars ($1,000,000.00) combined single limit per occurrence. If such amounts are less than 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. Pollution Liability insurance covering the ao#ideriit;;discharge and clean up of pollutants shall be maintained by the Lessee in an amot4 of* less than Five Million and 00/100 dollars ($5,000,000) per occurrence. Such cerage fall cover third party liability and clean up coverage. f. Lessor shall be named;, as an additional inswed on' the Commercial General Liability insurance policy. Lessor shall also be added as an additional insured on the Property Insurance policy as their interest may appear. The above- described insurance policies shall list and continuously mailttain Lessor :as an additional insured thereon. Evidence of such insurance shall, be provided to Lessor. ,And the Collier County Risk Management Depart, 3301 F,�asz , 'appn anti .Trail, AdtOWstration Building, Naples, Florida, 3411 „ ttppl+►l :prior tcit' 'commence* of this Ground Lease; and shall include a pro[on requiring not less, fl,ten (10) daysprior written notice to Lessor in the event of'pacellation or changes in pry {ies) coverage. If such amounts are less than food in ."rice practice w require, Lessor reserves the right to reasonably amend; =their iltwance requiremecl#s by issuance of notice in writing to Lessee, whereupon receipf of such notice Lessee shall have thirty (30) days in which to obtain such additional institance. The issuer of any policy must have a Certificate of Authority to transact insurance btt ± ss in the SUte of Florida and must be rated "A" or better in the most currftit edition of Best's Insurance Reports. Each insurer must be responsible and repuOle -and must have financial capacity consistent with the risks covered. Each policy must 9p.tain an endorsement to the effect that the issuer waives any claim or right of subrogationi tarecover against 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 Ground Lease and Lessor shall have the remedies set forth below. 17. 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: Page 6 of 13 Agenda Item No. 12A October 27, 2009 Page 40 of 46 i. Abandonment of Leased Land or discontinuation of Lessee's operation. ii. Lessee's material misrepresentation of any matter related to this Ground Lease. iii. Filing of insolvency, reorganization, plan or arrangement of bankruptcy. iv. Adjudication as bankrupt. V. Making of a general assignment of the benefit of creditors. vi. If Lessee suffers this Ground Lease to be taken under any writ of execution and/or other process of law or equity. vii. Lessee's loss of its federal IRS tax exempt status. viii. Lessee's failure to utilize the Leased Land as set forth in Exhibit B. ix. Any lien is filed against the Leased <Taad or Lessee's interest therein or any part thereof in violation of this Chw d :Lease, 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 cocsting in good faith the validity of such lien and such lien is approp iately!�ouded. X. Failure of Lessee to perform or comply with any material covenant or condition made under this Ground Lease, which failure is not cured within ninety (90) days from receipt of Lessor, Is written notice stating the non- compliance shall constitute a default (other than -those covenants for which a different cure period is provided), whereby Les$ctr may, at its option, terminate this Ground Lease by giving Lessee thirty (30) days written notice unless the default.,.s fully cured vein that thirty (30) day notice perms .(fir such addtl !tip as is agree4; 44 in writing by Lessor as Jble*mg ressonably reti red to cotm—,t such default). However, the occurrence of :any of the avents set forth,.sbove shall constitute a material breach and default by Lessee, and this Ground Lease may be immediately rminated by Les sol except to the extent then prohibited by law. b. Remed; of Lessor. i. In the event of the occuirrence of any of the foregoing defaults, Lessor, 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 Premises. Such property may be removed and stored in h 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. ii. If Lessee fails to promptly pay, when due, any full installment of rent or any other sum payable to Lessor under this Ground Lease, and if said sum Page 7 of 13 Agenda Item No. 12A October 27, 2009 Page 41 of 46 remains unpaid for more than five (5) days past the due date, the Lessee shall pay Lessor a late payment charge equal to five percent (5 %) 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. iii. 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 obso pe of any obligation, agreement or covenant of Lessee under this Gro 0l-mse, or otherwise. Lessor shall be entitled to reasonable attorneys fees*:'lt -:its incurred arising out of Lessee's default under this Ground LeaseN:11,. c. Default by Lessor. Lessor �,i no event be aarg6d with default in the performance of any of its obligations hereunder urn eo and iWil. Lessor Gall have failed to perform such obligations within thirty {3Q) dat�rs or sui�h addihaa'W` time as is reasonably required to correct such default) after written rcatsiei~ to Lessor by Lessee properly and in meaningfaai detail specifying wherein, in Leiiee!% judgment or opinion, Lessor has failed to perform any such ohligation(s). d. Remed*p essee. In pa#tsrl eoideration ft the nominal rent charged to Lessee, Lessee waives any : cairn it may have to direct or indirect monetary damages it iors as a result: of Lessor's breach of this Ground Lease, and also waives li any claim it nA& have to attormpys' fees ptui costs arising out of Lessor's breach of this Ground Lease ;`Lessee's remedies- for Lessor's default under this Ground Lease shall be limited ;to the f ,wing: i. For itnctive relief as may appear necessary or desirable to enforce the perform: and obssestvance of any obligation, agreement or covenant of lessor under# mound Lease. 1essee may cure any default of Lessor and pay all sums or do all :reasonably necessary work and incur all reasonable costs on behalf of and 'ltgthe expense of Lessor. Lessor will pay Lessee on demand all reasonable o#s;,incurred and any amounts so paid by Lessee on behalf of Lessor, with no interest. 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 Ground Lease 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. Page 8 of 13 Agenda Item No. 12A October 27, 2009 Page 42 of 46 f. Non- Waiver. Every provision hereof imposing an obligation upon Lessee is a material inducement and consideration for the execution of this Ground Lease by Lessee and Lessor. No waiver by Lessee or Lessor of any breach of any provision of this Ground Lease 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. Miscellaneous Legal Matters 18. This Ground Lease shall be construed by and controlled under the laws of the State of Florida. In the event of a dispute under this Ground Lease, the Parties shall first use the County's then - current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action in the Circuit Court of Collier County to enforce the terms of this Ground Lease, which Court the Parties agree to ham the sole and exclusive jurisdiction. 19. This Ground Lease contains the entire agrei went of the arties4ith respect to the matters covered by this Ground Lease and no other agreemei#,;statenut or pr made any party, or to any employee, officer or agent of any party, which 4i-not W'' atained in this Ground Lease shall be binding or valid. Time is of the essence in the cag, performance and observation of each and every term, ,covenant and;;condition o" ibis Ground Lease by the Parties. 20. In the event aW or federal 1 > onacted aftef"':16v execution of this Ground Lease, which are apple fia --alid.preclud -i W.Whole or in part. the Parties' compliance with the terms of this Ground base, then in such eve&.Ibis Ground'I.4ase shall be modified or revoked as is necessary to ctply with such laws, in a manner which best reflects the intent of this Ground Lease. 21. Except as otherwise provided herein, this Ground Lease shall only be amended by mutual written consent of the Parties hereto or by their successors in interest. Notices hereunder shall be given to the -Parties set forth below and shall be made by hand delivery, facsimile, overnight delivery ,or by regular mail. If given by regular mail, the notice shall be deemed to have been given wt#tin a required time if deposited in the U.S. Mail, postage prepaid, within the time limit. For the'?prpose of calculating time limits which run from the giving of a particular notice the time shalf"b, calculated from actual receipt of the notice. Time shall run only on business days which, i`oi exposes of this Ground Lease shall be any day other than a Saturday, Sunday or legal public holm. Notices shall be addressed as follows: If to Lessor: County Manager Collier County Manager's Office 3301 East Tamiami Trail Naples, Florida 34112 CC: Real Property Management 3301 Tamiami Trail Building W Page 9 of 13 Naples, Florida 34112 If to Lessee: Agenda Item No. 12A October 27, 2009 Page 43 of 46 Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight O#Ory service. 22. Lessee is an independent contractor, and is not any i#Sent or representative or employee of Lessor. During the term of this Ground Lease, neither Lessee, nor anyone acting on behalf of Lessee, shall hold .itself out as an employee, servant, represeritaltt[ ►e or agent of Lessor. Neither party will have the right or authority p, bind the other ply w ftl,ut express written authorization of such other party to any obligatida any, d party Flo thud party is intended by the Parties to be a beneficiary of this Ground Lease or tt3,Ilave + rights tb <enforce this Ground Lease against either party hereto t#herwise Nothing sfei in this Ground Lease will constitute the Parties as pates or joint ventures Cor..any pure, it being the express intention of the Parties that no staff partnershti or joint ve�dtire exists or will exist. Lessee acknowledges that Lessor is not providing any 'vacation tune ,sick pay, or other welfare or --- ~ retirement benefits normally associated wtth,;an emloyc�e-ernploye relationship and that Lessor excludes Lessee and t# 46y* in all health and welfare benefit plans including vacation, 4wieave, se e, life; accident, health acid disability insurance, deferred compensation, retiret and grievance rights or privileges. 23. Neither 1Y to this Ground Lease will be liable for any delay in the performance of any abt on under this Ground Lease or of any inability to perform an obligation under this Ground Lease 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, and the binding' D:oWer of any governmental authority. 24. Lessee will not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous Materials upon or about the Leased Land, nor permit employees, representatives, agents, contractors, sub - contractors, sub - sub - contractors, material men and/or suppliers to engage in such activities upon or about the Leased Land. 25. 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 Page 10 of 13 Agenda Item No. 12A October 27, 2009 Page 44 of 46 in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department. 26. Lessee shall execute this Ground Lease prior to it being submitted for approval by the Board of County Commissioners. This Ground Lease may be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the County enters into this Ground Lease, at Lessee's sole cost and expense. IN WITNESS WHEREOF, the Lessee and Lessor have hereto executed this Ground Lease the day and year first above written. AS TO THE LESSEE: Witness (signature) (print name) Witness (signature) By: By: `,,Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney DONNA FIALA, CHAIRMAN Page I I of 13 Agenda Item No. 12A October 27, 2009 Page 45 of 46 EXHIBIT A [Insert Legal Description] Page 12 of 13 EXHIBIT B )iction of Proposed Site Improvements] Page 113 of 13 Agenda Item No. 12A October 27, 2009 Page 46 of 46