Agenda 11/10/2009 Item #16G 2
Agenda Item No. 16G2
November 10, 2009
Page 1 of 20
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Recommendation for the Community R~:!cvelopment Agency (CRA,) to approve and
execute the attached Lease with Auto Pride Cnllision Centers, Inc., a Florida Corporation
permitting them to continue the operation flf the existing business on CRA owned property
located at 1911 E. Tamiami Trail in the Gateway Mini-Triangle for an annual rent of
$128,084.00 for the first year and $150,000.00 or five (5%) of the Lessee's gross sales for
each successive year.
OBJECTIVE: Recommendation for the Community Redevelopment Agency (CRA) to approve
and execute the attached Lease with Auto Pride Collision Centers, Inc., a Florida Corporation
permitting them to continue the operation of the existing business on CRA owned property
located at 1911 E. Tamiami Trail in the Gateway Mini-Triangle for an annual rent of
$128,084,00 for the first year and $150,000.00 or five (5%) of the Lessee's !,:rross sales for each
succeSSIve year.
CONSIDERATION: On July 28, 2009 the COlmnunity Redevelopment Agency approved the
purchase of six (6) commercial properties located within the Gateway mini-triangle. Four (4) of
the properties have tenants and existing leases. The lease for one of the tenants (Auto Pride
Collision Centers, Inc.) operating as an automobile and body shop is scheduled to expire on
December 31, 2009 and the tenant desires to renew the lease and continue operating on the site,
The Bayshore/Gateway Triangle eRA staff and Auto Pride Collisions Centers, Inc. negotiated a
new lease having an effective date of January 1, 2010.
The proposed lease term is for three (3) years beginning January 1, 2010 to December 31, 2012
with a provision for one (1) two (2) year lease extension. The annual rent for the first year shall
be $128,084,00 payable in twelve (12) equal monthly installments of$10,673.66, plus sales tax,
if applicable, and $150,000.00 or five (5%) percent of the Lessee's gross sales for each
successive year, plus sales tax if applicable, minus real estate taxes and assessments, general and
special, if any against the Premises.
Auto Pride Collision Centers, Inc., acknowledges that the site is slated for future redevelopment
and provisions regarding the same have been stipulated in the Lease.
FISCAL IMPACT: The revenues fi.-om the Lease will be utilized to service a portion of the
Bayshore/Gateway Triangle CRA debt.
LEGAL CONSIDERATIONS: The attached Lease has been reviewed and approved by the
Office of the County Attorney for content and legal sufficiency. - JBW
GROWTH MANAGEMENT: There is no impact on the County's long-range planning effort.
RECOMMENDATION: That the Collier County Community Redevelopment Agency Board
approve the Lease with Auto Pride Collisions Centers, Inc., and authorize the Chairman to
execute same.
.-
PREPARED BY: Jean Jourdan, Project Manager
Bayshore/Gateway Triangle eRA
Item Number:
Item Summary':
Meeting Date:
Aaenda Item No. 16G2
~ November 10. 2009
Page 2 of 20
COLT TKR COTTNTY
BliARD :Jr :;Gtif~ ;-./ :>Jw~i~~S~K;~~~ERS
16G2
Rccorr.mcncL:::tion fo~ l!~C COrr.1T:~::;:ty Rcd~velcpmcnt !\gency (CRA) to approve and execute
the attached Lease with Auto Pride Collision Centers, Inc., a Florida Corpormion permitting
them to continue the operation of the existing business on CRA owned property located at
1911 E. Tamiami Trail in the Gateway lv1iniTriangle for an annual rent of $128,08400 for the
first yem a;-;d $i GO,80C .OC .j; f:ve (5%) of the Lessees gross sales for each successive year.
11/10/2009 9:00:00 AIv1
Prepared By
Jean Jourdan
Community Redevelopment
Agency
Project Manager
Date
Bayshore-Gateway Redevelopment
10/27/20093:39:11 PM
Approved By
Jerlll J<>urddf1
Community Redevelopment
Agency
Project Manager
Dale
Bayshore-Gateway Redevelopment
10/27/20092:53 PM
Approved By
David Jackson
Community Redevelopment
Agency
Executive Director
Date
Sayshore-Gateway Redevelopment
10/27/20094:47 PM
Approved By
OMS Coordinator
County Manager's Office
OMS Coordinator
Date
Office of Management & Budget
10/28/2009 1 :54 PM
Approved By
Jennifer White
County Attorney
Assistant County Attorney
Date
County Attorney Office
11/2/2009 1: 11 PM
Approved By
Jeff Klatzkow
County Attorney
County Attorney
Date
County Attorney Office
11/3120099:48 AM
Approved By
Mark Isackson
County Manager's Office
Budget Analyst
Date
Office of Management & Budget
11/3/2009 10:21 AM
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Agenda item No. 16G2
November 10, 2009
Page 3 of 20
LEASE
THIS LEASE (the "Lease") is made as of the 1st day of January, 2010, between Collier
County Community Redevelopment Agency, more fully ident1fied in Section Ll as LESSOR
(the "LESSOR"), and Auto Pride Collision Centers, Inc., a Florida corporation, or its assigns,
more fully identified in Section ] .2, as LESSEE (the ''LESSEE'')
Demise. In consideration of the undertakmgs of the parties contained herein,
LESSOR leases to LESSEE, and LESSEE leases from LESSOR, the premises described in
Sections lJ. and l. (the "Premises"), on the following terms and conditions:
1. Basic Lease Provisions: This Section contains or refers to certain basic
provisions of this Lease (the "Basic Lease Provisions"). Other Sections of this Lease explain,
define and are to be read in conjunction with the Basic Lease Provisions.
1.1 LESSOR: (a) Collier County Community Redevelopment Agency
3301 Tamiami Trail East
Naples, Florida, 34112
(b) Make Payments to:
Collier County Community Redevelopment Agency
4069 Bayshore Drive
Naples, Florida 34112
1.2 LESSEE: Auto Pride Collision Centers, Inc.
5626 Enterprise Pkwy.
Fort Myers, FI 33901
1.3 Premises: (See Section l.):
(a) Address: 1911 E. Tamiami Trail
Naples, Florida 34112
(b) A legal description of the real property is attached hereto as Exhibit
"".LA.." .
(c) Use: Automobile repair and body shop/together with any other
zoning approved use
Cd) LESSEE'S Proportionate Share of Premises: 100%
1.4 Term:
(a) Primary Term (See Section U): 3 years, from January 1,2010 to
December 3 L 2012
Agenda Item No. 1682
November 10, 2009
Page 4 of 20
(b) Option to Extend (See Section 3.2):
i. Extension Term: One (1) Two (2) year renewal option
from January I, 2013 to December 31, 2014.
11. Exercise Date(s): Six (6) months prior to the expiration
of the Primary Term (as hereinafter defined), as
tollows: On or before July 1,2012 for the extension.
1.5 Rm!:
(a) Primary Term (See Section 1): During the first year of the Term of the
Lease the annual rent shall be $128,084.00 payable in twelve (12)
equal monthly installments of $10,673.66, plus sales tax, if applicable,
During each successive Term of the Lease the annual ren~ payable in
twelve (12) equal monthly installments, shall be the greater of
$150,000.00 per year or five (5%) percent of LESSEE'S gross sales for
the preceding twelve (12) month period as described in Section 4 below,
plus sales tax if applicable, minus real estate taxes and assessments,
general and special, if any, against the Premises.
(b) Extension Term (See Section 1,): The annual rent, payable in twelve
(12) equal monthly installments, shall be the greater of $ 150,000,{)O or
five (5%) percent of LESSEE'S gross sales for the preceding twelve (12)
month period as described in Section 4 below, plus sales tax, if
applicable, minus real estate taxes and assessments, general and special,
if any, against the Premises.
1.6 Rent Commencement Date (See Section 1): January 1,2010
1.7 LESSEE Possession Date: January 1,2010
1.8 Insurance (See Section lLl):
Casualty Insurance:
(a) Amount: To be determined by LESSOR in it sole discretion
with no obligation to insure the premises.
(b) Insuring Party: LESSOR
Liability Insurance:
(c) Amount: Bodily Injury: $2,000,000,
Property Damage: $250,000
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,L'.,genda !tenl No. 16G2
November 10, 2009
Page 5 of 20
2. Premises:
During the Term of this Lease (a~ d.efmLd m. SectIOn 3.3), the Premises shall consist of
the exclusive use of the LESSOR'S buildings. iF1d adjoining exterior loading, parking and drive
areas.
3. Term:
Primary Term: The primary term of this Lease shall be for the period
specified in Section 1A (the "Primary Term") unless this Lease shall be earlier terminated as
hereinafter provided.
Extension Tem1s: LESSEE shall have the right and option to extend the
Primary Term for extension term as set forth in Section lA (the "Extension Terms"), upon the
same terms and conditions of this Lease, except as otherwise provided in Section 1.5, LESSEE
shall deliver to LESSOR notice of its election so to extend the Primary Term on or before the
respective Exercise Date set forth in Section L1. Failure to timely exercise shall cause a waiver
of LESSEE'S right to Extend the Term of the Lease, except as provided for herein.
The parties acknowledge that LESSOR intends to sell the real property to
a third party for redevelopment purposes, In order to facilitate LESSOR'S goal, LESSEE shall
on or before thirty (30) days following the commencement of the Extension Tem1 meet with
LESSOR to determine its progress toward the redevelopment goal and the parties agree as
follows:
(a) In the event LESSOR has detennined that a sale of the real property is
likely to occur within the foreseeable future and LESSOR desires the LESSEE to vacate the real
property on or before the end of the Extension Term then LESSOR shall provide this information
to LESSEE in writing and LESSEE shall immediately commence to locate a new premises from
which to conduct its business in Collier County, Florida. LESSEE shall be required to vacate the
leased premises on the temlination date of the Extension Term but, in the event LESSEE locates
alternate premises before the termination date of the Extension T errn and LESSEE is prepared to
move to such alternate premises then LESSEE may proceed to vacate the premises prior to the
Tennination Date of the Extension Term and LESSEE shall have no liability for rents due and
payable after LESSEE vacates the property and LESSEE shall receive a refund of any prepaid
rent.
(b) In the event LESSOR has been unable to detem1ine that a sale of the
real property is hkely to occur within the foreseeable future and LESSOR desires the LESSEE to
remain as a LESSEE then LESSOR shall provide this information to LESSEE in writing and
LESSOR and LESSEE shall sign an amendment to this Lease granting LESSEE an additional
Extension Term for a period of two (2) years subject to the terms and conditions of this lease.
The terms and conditions of this Paragraph 3 shall apply to any additional
Extension Term of this Lease.
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Agenda Item 1\10. 16G2
November 10, 2009
Page 6 of 20
Term of Ihi!:> 1 ,ease: The Primary Term and the Extension Term
sometimes shall be referred to collectively hereinafter as the "Term of this Lease".
4. Rent:
Manner of Payment: During the first year of the Term of this Lease,
LESSEE shall pay annual rent in the amount $128,084.00, payable in monthly installments of
$10,673.66.00 per month, plus applicable sales tax, if any. On or before December 1, during each
year of the Term of this Lease, LESSEE shall deliver to LESSOR copies of its sales tax returns
for the preceding twelve (12) month period prior to December 1 (sales tax returns are due on the
20th day of the month following the month of sale and therefore returns will be provided for the
period November through October for the preceding the twelve (12) month period). A copy of
LESSEE'S sales tax return for the month of August, 2009, is attached as Exhibit B. Commencing
on January 1,2011, and on January 1 of each subsequent year during the Term of the Lease the
annual rent shall be adjusted to the greater of$150,000 per year or five (5%) percent of the gross
sales for the preceding twelve (12) month period as calculated from the monthly sales tax
reports, plus applicable sales tax, if any, payable in twelve (12) equal monthly installments,
minus real estate taxes and assessments, general and special, if any, against the Premises. As an
example if the gross sales of LESSEE for the period November 1,2009, through October 31,
2010, are $4,000,000.00 then commencing January 1, 2011, the annual rent payable by LESSEE
shall be $200,000.00, payable in monthly installments of $16,666.67, plus applicable sales tax, if
any. Each monthly installment of Rent shall be due and payable on the 1 st day of the month and
mailed to LESSOR at the address set forth in Section U (b), or at such other address as
LESSOR may designate in writing at any time or from time to time, in monthly installments as
set forth in Section 12 (the "Rent"). Such monthly installments of Rent shall be payable in
advance on or before the Rent Commencement Date as set forth in Section ~(the "Rent
Commencement Date") and on or before the first business day of each calendar month thereafter.
Rent for partial months at the inception of the termination of the Lease shall be prorated. In the
event that LESSEE, at its sole cost and expense, expands the facility, the Rent, as applicable
hereunder from time to time, shall not be increased because of such expansion. Upon execution
of this Lease, LESSEE shall prepay one month's rent which shall be applied to the first month of
the Lease and shall pay all additional rent as herein defined.
5. Real Estate Taxes and Assessments:
Payment: During the Term of this Lease, as identified in Section lA,
LESSEE shall pay within (30) days of receipt, LESSEE'S Proportionate Share as identified in
Section 1.3(d) of all real estate taxes and assessments, general and special, if any, against the
Premises. ("Taxes and Assessments")
6. Utilities: During the Term of this Lease, LESSEE shall pay for all utility services
consumed by LESSEE upon the Premises, including without limitation gas and electricity,
sanitary and storm sewer, water and telephone services. To the extent that any utility services
supplied to the Premises are billed directly to LESSOR, LESSEE shall reimburse LESSOR,
within thirty (30) days after LESSOR'S delivery to LESSEE of an invoice therefore, for that
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lc"oenda item No. 16G2
~ November 10. 2009
Page 7 of 20
portion of such utility services whIch 1S attnbuted direct1y to LESSEE'S use of the particular
utility service. IF LESSOR and LESSEE fail to agree as to the appropriate method for
determining such portion, then LESSOR, at its sole cost and expense, shall effect the separate
metering of all utility services supplied to the Premises.
7. Possession of Premises: Deliverv of Possession: Condition: LESSOR shall
deliver possession of the Premises to LESSEE on the LESSEE Possession Date. LESSEE
accepts the Premises 111 an "'as-IS' condition without any obligation of LESSOR to repmr any
defects, or make any repairs, alternations or improvements.
8. LESSEE Improvements: Except as to structural improvements, demolition,
substantial alterations effecting structural design, exposure of the interior during improvements,
and substantial site plan changes effecting landscaping for which LESSOR'S or LESSOR'S
mortgagee written consent is required, LESSEE, at its sole cost and expense, shall have the right
but shall not be obligated prior to and during the Term of this Lease to improve, alter and
renovate the Premises in any manner which LESSEE deems necessary or desirable to make the
same fit and suitable for the conduct of its business operations. LESSEE shall perform all work
described in this Section subject to the standards set forth in Section 17.1(b). Unless otherwise
agreed in writing by the parties and subject to Section 2-below, any improvements, alterations
and renovations to the Premises by LESSEE pursuant to this Section shall be promptly restored
by the LESSEE to the condition existing immediately prior to LESSEE'S possession, subject to
normal wear and tear, damage by fire, explosion or other casualty, upon the expiration or earlier
termination ofthis Lease.
9. Trade Fixtures~ Personal Property: LESSEE, at its sole cost and expense, shall
have the right, without LESSOR'S consent, but shall not be obligated during the Term of this
Lease to install, use, replace, substitute and remove its trade fixtures and personal property such
as, without limitation, telephone, teletype and other equipment, machinery, conveyor systems,
racking, task lights, office furniture, and office trailers. Upon the expiration of the Term of this
Lease or the earlier termination of this Lease, LESSEE shall have the right to remove its trade
fixtures and personal property from the Premises.
10. Maintenance and Repairs bv LESSEE: LESSEE, as its sole coast and expense,
during the Term of this Lease shan keep the Premises in a clean and orderly condition and, shall
perf 01111: (i) any maintenance and repairs to the Premises occasioned by the negligence or
misconduct of LESSEE or its invitees and licensees, and (ii) maintenance and replacement of the
landscaping, all required maintenance, replacement and repairs to windows, pedestrian and
overhead doors and all routine maintenance, repair and replacement of the mechanical and utility
systems, including, but not limited to; heating, ventilating, air conditioning, lighting, electrical,
plumbing, gas, water supply, sanitary systems, and communications lines (sometimes
collectively referred to herein as the ("Mechanical and Utili!v Svstems"), including without
limitation, any necessary changing of fan belts, light bulbs, washers, gaskets, replacing of
\vindow glass and the cleaning of and necessary adjustments to the furnace system and (iii) all
other maintenance, replacement and repairs to the structure, roof and the exterior of the Premises
in which the interior portions of the Premises shan be located, including, without limitation, the
roof and roof membranes, exterior walls, the interior wall separating the office area from the
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Agenda Item No. 16G2
November 10. 2009
Page 8 of 20
body shop area, floors, foundations, supports, skylights and roof vents, drains, and downspouts,
the substructure, all periodic repaving and any patching and pothole maintenance of the yard,
parkiug, drive and other hard-surfaced areas comprising a portion of the Premises, together with
curbs and walkways. If LESSEE fails to perform its maintenance and repair obligations within
fifteen (I5) days after LESSOR'S delivery to LESSEE of notice of the need for any such
maintenance and repairs, then LESSOR shall have the right, but not the obligation, upon delivery
of three (3) business days' notice to LESSEE, to perform all of part of such maintenance and
repairs, at the sole cost and expense of LESSEE, and LESSEE shall reimburse LESSOR for such
costs and expenses within thirty (30) days after LESSOR's delivery to LESSEE of an invoice
therefore.
11. Insurance:
11.1 Casualty Insurance: At all times during the Term of this Lease, the
insuring party named in Section 1.8(b), at its sole cost and expense, may, in its sole discretion,
cause the Premises to be fully and adequately insured with a customary policy of fire and
extended coverage insurance (including flooding, vandalism, damage from sink holes (if
available), malicious mischief and special extended perils or all risk) in an amount not less than
the full replacement cost of the Premises, with a standard inflation guard endorsement or, in the
event the parties have agreed upon a fixed amount of insurance, with a fixed amount
endorsement,
11.2 Public Liability Insurance: At all times during the Term of this Lease, the
LESSEE shall maintain in full force and effect a public liability insurance policy for the
Premises in amounts not less than those set forth in Section 1.8 (c). Such insurance policy shall
name the LESSOR as an additional insured, as its interest may appear with respect to the
Premises.
11.3 Certificates: Any insuring party shall, upon LESSEE Possession Date,
provide an insured party with adequate evidence of the continued existence of applicable
insurance coverage by certificate(s) of insurance. Each such certificate shall contain an
agreement by the insurer that such insurance coverage shall not be modified or canceled without
delivery of at least thirty (30) days written notice to the insured party.
11.4 Mutual Waiver of Subrogation: Nothing in this Lease shall be construed
so as to authorized or permit any insurer of LESSOR or LESSEE to be subrogated to any right of
LESSOR or LESSEE against the other party arising under this Lease. LESSOR and LESSEE
each hereby release the other to the extent of any perils to be insured against under Section 11.1
of this Lease only, whether or not such insurance has actually been secured, and to the extent of
insurance coverage for any loss or damage caused by any such casualty, even if such incidents
shall be brought about by the fault or negligence of either party. All insurance policies to be
provided under Section ill by either LESSOR or LESSEE shall contain a provision that they
are not invalidated by the foregoing waiver.
12. Dama2es and Termination
12.1 Damage and Restoration: In the event that the Premises shall be damaged
or destroyed by fire, explosion or other casualty, or by any risk require to be insured against
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A';)6nda Item No. 16G2
November 10, 2009
Page 9 of 20
pursuant to Section III or at law, LESSEE promptly shall deliver to LESSOR notice thereof.
Unless terminated pursuant to Section 12.2, this Lease shall remain in full force and effect, and
LESSEE, at its sole cost and expense, but with the right to use insurance proceeds, if any, to the
extent of the LESSOR'S interest therein and to the extent not to exceed the amount of actual
proceeds, may exercise good faith and diligent efforts promptly to repair the damage or
destruction and restore the Premises to substantially that condition existing immediately prior to
such damage or destruction. Until the completion of LESSEE'S repair and restoration pursuant
to this Section, LESSEE'S obllgation to pay Kent and other anlOunts payable by LESSEE
hereunder shall be abated as of the date of the damage or destruction in proportion to the extent
that the value of the premises for the use and occupancy thereof by LESSEE for the conduct of
its business operations shall be reduced, as the parties shall agree, but in the absence of such
agreement, as determined by the dispute procedure under Section 32 hereof.
12.2 Rig,hts of Termination: LESSOR'S and LESSEE'S respective rights to
terminate this Lease upon the occurrence of certain damage or destruction shall be governed as
follows:
(a) If the Premises shall be damaged or destroyed to the extent of more than
ten percent (10%) of the full replacement cost thereof, then either LESSOR or LESSEE may
elect to terminate this Lease by delivery of notice to the other within thirty (30) days after the
date LESSOR or LESSEE first learned of such damage or destruction; or
(b) If repair and restoration of any such damage or destruction cannot
reasonably be completed within one hundred twenty (120) days after the date of notice to the
LESSOR of the damage or destruction then LESSEE may elect to ternlinate this Lease by
delivery of notice to LESSOR within thirty (30) days after the date of such damage or
destruction; and
(c) Upon delivery of any notice pursuant to Section 12.2 (a) or 12.2 (b), and
the payment or assignment to LESSOR of insurance proceeds to the extent of LESSOR'S
interest therein, this Lease shall terminate as of the date of the damage or destruction unless
otherwise provided in such notice, and LESSEE shall have no further liabilities or obligations
hereunder other than to pay Rent accrued hereunder as of the date of such termination.
13. Eminent Domain:
13.1 Repair and Restoration: In the event that all or any portion of the
Premises shall be taken or threatened to be taken under the power of eminent domain or
settlement in lieu thereof for any public or quasi-public use, LESSOR promptly shall deliver to
LESSEE notice thereof. Unless tem,inated pursuant to Section 13.2, this Lease shall remain in
full force and effect, and LESSOR, as its sole cost and expense, shall exercise good faith and
diligent efforts promptly to repair the damage and restore the Premises so as to constitute the
remaining portion thereof a complete architectural unit, EXCEPT as provided for in Section
12.] and to the extent such damage is covered by insurance. If LESSEE remains in occupancy
of the Premises, LESSOR shall exercise such repair and restoration efforts in a manner so as not
to interfere unreasonably or materially with the use and occupancy of the Premises by LESSEE
-r
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Agenda Item No. 16G2
November 10, 2009
Page 10 of 20
for the conduct of its business operatiOns. Ufitil the completion of LESSOR'S repair and
restoration pursuant to this Section, LESSEE'S obligation to pay Rent and other amounts
payable by LESSEE hereunder shall be abated as of the effective date of taking of the Premises
or portion thereof by the public or quasi-public body in proportion to the extent that the value of
the Premises for the use and occupancy thereof by LESSEE for the conduct of its business
operations shall be reduced, as the parties shall agree, but in the absence of such agreement, as
determined by arbitration under Section 32 hereof.
13.2 Rights of Temlination: LESSEE shall have the right to terminate this
Lease upon the Occurrence of a taking or a threatened taking under the power of eminent domain
or settlement in lieu thereof if, as a result thereof, the Premises no longer shall be fit and suitable
for the use and occupancy thereof by LESSEE for the conduct of its business operations by
reason of a material reduction of more than thirty-five percent (35%) of the Premises, in which
event LESSEE may elect to terminate the Lease be delivery of notice to LESSOR within thirty
(30) days of the date that LESSEE receives written notice of the date on which possession of the
Premises or portion thereof shall be required by the public at quasi-public body. If LESSEE
gives LESSOR notice that LESSEE elects to terminate this Lease, this Lease shall terminate as
of the date on which such possession shall be required by the public or quasi-public body, and
LESSEE shall have no further liabilities or obligations hereunder other than to pay Rent accrued
hereunder as of such date of termination.
14. Default: Remedies:
14.1 LESSEE'S Default: The following events shall be deemed to be events of
default by LESSEE under this Lease:
(a) LESSEE shall fail to pay any installment of the rent herein reserved when
due, or any other payment or reimbursement to LESSOR required herein when due, and such
failure shall continue for a period of fifteen (15) days from the date such payment was due
following written notice thereofby LESSOR to LESSEE.
(b) LESSEE shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(c) LESSEE shall file a petition under any section of chapter of the National
Bankruptcy Code, as amended, or under any similar law or statute of the United States of any
state thereof; or an order for relief shall be entered against LESSEE in any proceedings filed
against LESSEE thereunder.
(d)
assets of LESSEE.
A receiver or trustee shall be appointed for all or substantially all of the
(e) LESSEE shall fail to discharge any lien placed upon the Premises III
violation of Section 33.
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Agenda Item No. 1682
November 10, 2009
Page 11 of 20
(f) LESSEE Sh8.~; fail to comply with any tcrm, provision or covenant of this
Lease (other than the foregoing in this Section 14) and shall not cure such failure within thirty
(30) days after written notice thereof to LESSEE.
14.2 LESSOR'S Remedies:
(a) Upon the occurrence of any such events of default described in Section
14.1 hereof, LESSOR shall have the optIOn to pursue anyone or more of the following remedies
or any other remedy available at law or equity after three (3) days written notice to LESSEE:
(1) Terminate this Lease, in which event LESSEE shall immediately
surrender the Premises to LESSOR and if LESSEE fails so to do, LESSOR may without
prejudice to any other remedy which it may have for possession or arrearage in rent, enter upon
and take possession of the Premises and expel or remove LESSEE and any other person who
may be occupying such Premises or any party thereof without being liable for prosecution of any
claim for damages therefore.
(2) Enter upon and take possession of Premises and expel or remove
LESSEE and any other person who may be occupying such Premises or any part hereof without
being liable for prosecution or any claim for damages therefore, and relet the Premises and
receive the rent therefore, all without tem1inating the Lease.
(3)
terminating the Lease.
Alter all locks and other security devices at the Premises without
(4) Relet the Premises, or any part of them, for the account of LESSEE
for any portion or all of the remainder of the term to any LESSEE. LESSOR shall credit the rent
received on the balance due from LESSEE, first to any expenses incurred because of the
repossession and re-renting, including broker's commissions, next to interest, and the balance to
the principal amount of the rent. LESSOR may repair or restore the Premises as provided for
herein for reletting, the cost of same to be charged to LESSEE. However, in no event, shall the
LESSEE be charged for improvements specific to a new LESSEE'S occupancy.
(5) Collect each installment of rent or other sum due under this Lease
as it becomes due or await the end of the term of this Lease and then collect all rent or other
sums due hereunder.
(b) In the event LESSEE fai Is to pay any installment of rent hereunder within
fifteen (15) days after notice that such installment is past due, LESSEE shall pay to LESSOR a
late charge in an amount equal to that charge that is charged to LESSOR for its failure to make
its payment on its Mortgage(s). In any event, said late charge shall not exceed five percent (5%)
of any late installment under this Lease.
(c) All remedies of LESSOR are cumulative to each other and to any other
remedies given by law or in equity. All rights of LESSOR on LESSEE'S default apply to an
extension of this Lease. By making a payment for LESSEE or from any security deposit,
LESSOR does not waive LESSEE'S default or any right LESSOR has because of the default.
9
Agenda Item No. 16G2
November 10, 2009
Page 12 of 20
15. LESSOR'S Default and LESSEE'S Remedies: I,ESSOR shall be in default of
this Lease if LESSOR fails to perfonn any tenn, condition, covenant or obligation of this Lease
Uti the palt of LESSOR to be perfom1ed within thirty (30) days after the date on which LESSOR
receives from LESSEE notice by certified or registered mail specifically describing such failure.
LESSEE may, after notice and time to cure, cure such default by LESSOR on behalf of, and at
the sole cost and expense of, LESSOR, including a supervision charge of twenty percent (20%)
of all costs and expenses incurred by LESSEE. LESSOR shall reimburse LESSEE for its costs
and expenses in cOlmection with any such cure within thirty (30) days after LESSEE'S delivery
to LESSOR of an invoice therefore, failing which LESSEE may offset such costs and expenses
against any Rent and other amounts payable by LESSEE hereunder,
16. LESSOR'S Ri2ht of Entrv: Following reasonable notice to LESSEE, LESSOR
may enter upon the Premises as often as LESSOR reasonably may deem necessary for the
purposes of performing such maintenance and repairs as LESSOR reasonably may deem
necessary or lawfully may be required to perform, inspecting the Premises, offering the Premises
for lease (but only during the period which commences six (6) months prior to the expiration of
the then existing Primary Term or Extension Tenn in the event that LESSEE shall not have
elected further to extend the Term of this Lease) or offering the Premises for sale. During this
period, LESSOR shall have the right to display "For Sale" and "For Lease" signs on the
Premises. LESSOR'S right of entry shall be exercised in a manner and during reasonable hours
at times such that there shall be no unreasonable or material interference with the use and
occupancy of the Premises by LESSEE for the conduct of its business operations.
17. Indemnification:
17.1 LESSEE Indemnification. LESSEE agrees to indemnify and hold
LESSOR harmless from and against any and all losses, damages, claims, suits actions,
judgments, liabilities and expenses, including without limitation reasonable attorneys' fees
(collectively, "Losses"), arising out of, or with respect to: (a) any breach of any warranty or
representation or any covenant or agreement of LESSEE, under this Lease~ or (b) any injury to,
or death of, persons and/or any damage to, or destruction of, property, on or about the Premises
and attributable to the negligence or misconduct of LESSEE, or LESSEE'S officers, employees,
agents, contractors or invitees, except for any such breach, any injury or death or any damage or
destruction arising out of, or with respect to, the negligence or misconduct of LESSOR, or any of
LESSOR'S officers, employees, agents, contractors or invitees, or as otherwise specifically
provided in this Lease.
18. Transfers and Lease Contin2encv:
18.1 Assi!IT1ment and Subletting: LESSEE shall have the right to assign this
Lease to any company that may acquire the business operations of LESSEE and may sublet all or
any portion of the Premises, without the consent of LESSOR, so long as such sub LESSEE meets
county zoning and occupancy requirements. However in no event, absent the written agreement
of LESSOR, no assignment of this Lease or subletting of all or any portion of the Premises shall
10
I\genda Item r'~OT 16C;2
November 10, 2009
Page 13 of 20
relieve LESSEE of any of the lenTIS, conditions, covenants and obligations of this Lease on the
lJart of LESSEE to be performed.
19. HoldiD!! Over: If LESSEE shall continue to occupy the Premises after the
expiration of the Term of this Lease or the earlier termination of this Lease, then LESSEE shall
be deemed to be occupying the Premises as a LESSEE from month-to-month, subject to the
terms and conditions of the Lease; provided, however, that either party shall have the right to
temlinate such month-to-month tenancy upon delivery of thirty (30) days notice to the other and
the rent shall be one hundred twenty-five percent (125%) of the rent charged in the last full
month before expiration of the term of this Lease or earlier temlination of the Lease.
20. Quiet Eniovment:
20.1 LESSOR 'S_ Covenant. LESSOR covenants and agrees that LESSEE shall
have the peaceful and quiet possession and enjoyment of the Premises (subject to all mortgages
and other matters to which this Lease, is or shall become, subordinate in accordance with the
provisions of Section 21) for the conduct of its business operations during the Term of this
Lease, without hindrance by LESSOR or any party whatsoever.
20.2 LESSEE'S Option to Ternlinate: LESSEE may terminate this Lease if
LESSOR materially breaches LESSOR'S covenant of quiet possession and enjoyment as set
forth in Section 21 subject further to the notice and cure periods and provisions permitted in this
Lease.
21. Subordination and Attornment/Estoppel:
(a) LESSEE covenants and agrees on the terms and conditions provided in
this Section, that this Lease shall be subordinate to any institutional mortgage or deed of trust
that now or hereafter shall encumber the Premises, provided that each named mortgagee
or beneficiary shall execute and deliver to LESSEE a non-disturbance, attornment and
subordination agreement stating (in addition to other reasonable terms, if any) in substance the
(i) if LESSEE is not in default hereunder, the right of possession of LESSEE to the Premises
shall not be affected or disturbed by any mortgagee in the exercise of any of its rights under a
mortgage or the note secured thereby, and any sale of the Premises pursuant to the exercise of
any rights and remedies under a mortgage or otherwise shall be made subject to LESSEE'S right
of possession to the Premises under this Lease and LESSEE'S Option to Purchase; and (ii)
LESSEE shall attorn to any mortgagee or purchase at a foreclosure sale (a "Purchaser") upon
acquisition of title to the Premises by a mortgagee or Purchaser and notice to LESSEE therefore,
and this Lease shall continue in full force and effect between such mortgagee or Purchaser.
Upon LESSEE'S receipt and approval of such non-disturbance/attornment agreement from a
mortgagee or beneficiary from time to time, LESSEE covenants and agrees to attorn to such
mortgagee or beneficiary upon foreclosure.
(b) In the event that estoppel certificates now or hereafter may required by
any mortgagee or beneficiary of any mortgage or deed of tmst, respectively, encumbering the
Premises, LESSEE further covenants and agrees to execute certificates containing the substance
1 1
Agenda Itam No. 16G2
November 10, 2009
Page 14 of 20
of the following statements (together with other I easonable te1TI1S, if any): (i) that the copy of the
Lease attached to the certificate is a true and complete copy of the Lease and there are no
amendments, modifications or alterations of the Lease, except as stated; (ii) that the Premises
required to be furnished under the Lease have been completed in accordance therewith, the date
on which LESSEE accepted possession of such Premises and that LESSEE now occupies the
same; (iii) that LESSEE began paying monthly installments of rent under the Lease on a given
date and no such installment had been paid more than one month in advance; and (iv) that the
Lease is in full force and effect, and, except as noted, there exists, to LESSEE'S knowledge, no
defense or offset to enforcement of the Lease by LESSOR, and, to LESSEE'S knowledge,
LESSOR is not in default under the Lease.
22. Surrender of Premises: Upon the expiration of the Tenn of this Lease or the
earlier termination of this Lease, LESSEE shall deliver up and surrender the Premises, to
LESSOR, in as good order and condition as upon the LESSEE Possession Date, subject to
LESSEE'S improvements, alterations and renovations to the Premises, n01TI1al wear and tear,
damage by fire, explosion or other casualty, repairs and restoration for which LESSEE shall not
be responsible hereunder and LESSEE'S removal of its trade fixtures.
23. Notices~ Computation of Time: For the purposes of all notices and
communications between the parties, the addresses of LESSOR and LESSEE shall be as follows:
LESSOR:
At the address shown in Section U (b).
LESSEE:
At the address shown in Section g.
Any notices and other communications to be delivered by either party to the other pursuant to
this Lease shall be in writing and shall be deemed delivered as follows, except as otherwise
specifically provided in this Lease: upon confimled receipt of such delivery by the party
delivering notice or upon confi1TI1ed receipt of such delivery by telecopier transmission,
overnight courier service of mailing with retum receipt. Except as othetwise specifically
provided herein, in the computation of any period of time which shall be required or permitted
hereunder or under any law for any notice or other communication or for the perfonllance of any
term, condition, covenant or obligation, the day from which such period runs shall be excluded
and the last day of such period shall be included unless it is a Saturday, Sunday or legal holiday,
in which case the period shall be deemed to run until the end of the next day which is not a
Saturday, Sunday or legal holiday.
24. Entire A2reement~ Amendments: This Lease contains the entire agreement
between the parties, and no promise, representation, warranty, covenant, agreement or
understanding not specifically set forth in this Lease shall be binding upon, or inure to the benefit
of, either party. This Lease may not be amended, altered, modified or supplemented in any
manner except by an instrument in writing duly executed by the parties.
25. Governin2 Law~ Interpretation: This Lease shall be construed and enforced in
accordance with the laws of the state of Florida. The fact that this Lease shall have been
prepared by the attomey for either LESSOR or LESSEE shall not be used to construe or interpret
12
Agenda item No. 16G2
November 10, 2009
Page 15 of 20
this Lease for or against either party; the partlt;S InLt:nu LlJai the provisions of this Lease shall be
given their fair meaning and no court shan .::onstrue thi~ Lease more stringently against one party
than against the other.
26. Authoritv~ Bindin2 Effect: If LESSOR or LESSEE shall be a corporation, trust
or general or limited partnership, eaeh indivIdual executing this lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of such entity. The provisions of th15 lease shall be binding upon, and shall inure to the
benefit of, the parties and their respective heirs, executors, administrators, personal and legal
representatives, successors and assigns.
27. ~o Waver: The failure of LESSOR or LESSEE to insist upon strict performance
of any of the tern1s, conditions covenants and obligations contained in this Lease shall not be
deemed a waiver of any fights Of remedies for any subsequent breach or default in the terms,
conditions, covenants and obligations herein contained.
28. Si2DS: LESSEE shall have exclusive sign rights for the Premises, exterior and
interior, and shall have the right to erect and display signs on the Premise and such other areas of
the Premises as LESSEE reasonably may request, subject only to compliance with applicable
laws, ordinances and requirements of the governmental authorities with competent jurisdiction.
29. Section Headin2s: The Section headings hereof are intended for convenience
and reference purposes only and shall not be used to construe or interpret this Lease.
30. Severability: If any provision of this Lease shall be determined by any court to
be invalid, illegal or unenforceable to any extent, then the remainder of this Lease shall not be
affected, and this Lease shall be construed as if the invalid, illegal or unenforceable provision
had never been contained in this Lease.
31. Counterparts: This Lease may be executed in two (2) or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one
and the same instmment.
32. Dispute procedure: In the event of a dispute under this Agreement, the parties
shall first use the County's then-current Altemative Dispute Resolution Procedure. Following
the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit
Court of Collier County to enforce the tenns of this Agreement, said remedy being cumulative
with any and all other remedy available to the parties for the enforcement of this Agreement.
33. Mechanic's Liens and LESSEE'S Personal Property Taxes:
(a) LESSEE shall have no authority, express or implied, to create or place any
lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind the interest
of LESSOR in the Premises or to set ofT the rentals payable hereunder against any claim in favor
of any person dealing with LESSEE, including those who may furnish materials to perform labor
for any construction or repairs. LESSEE covenants and agrees that it will payor cause to be paid
1.)
Agenda Item t~o. 1682
November 10. 2009
Page '16 of 20
aH sums legally due and payable by It 011 account of any labor perfonned or materials furnished
in connection with work perforn1ed by LESSEE on the Premises (LESSEE is not responsible or
liable for sums which represent an obligation of LESSOR under this Lease) on which any lien is
or can be validly and legally asserted against the Premises or the improvements thereon.
LESSEE will save and hold LESSOR hannless from any and all loss cost or expenses based on
or arising out of asserted claims or liens against the leasehold estate or against the right, title and
interest of the LESSOR in the Premises or under the terms of this Lease, if such asserted claims
or liens are a result from, through or under LESSEE and in such event, LESSEE agrees to give
LESSOR immediate written notice of the placing of any lien or encumbrance against the
Premises.
(b) LESSEE shall be liable for and promptly pay when due all taxes levied or
assessed against personal property, furniture, or fixtures placed by LESSEE in the Premises, If
any such taxes for which LESSEE is liable are levied or assessed against LESSOR or
LESSOR'S property and if LESSOR elects to pay the same or if the assessed value of
LESSOR'S property is increased by inclusion of personal property, furniture or fixtures Placed
by LESSEE in the Premises, and LESSOR elects to pay the taxes based on such increase,
LESSEE shall pay the LESSOR upon demand that part of such taxes.
34.
following:
RADON GAS: As required by Section 404.056, Florida Statute, LESSEE is notified of the
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 unit.
14
,c,genda item No. 16G2
November 10, 2009
Page 17 of 20
EXHIBIT "A"
FOLIO #77510240008
Lots 5 through 11, inclusive, of Tnangle Lake, according to the map or piat thereof recorded in
Plat Book 4, Page 38, of the Public Records of Collier County, Florida, Less and excepting there
from that portion thereof previously conveyed to the State of Road Department of the State of
Florida by deed of conveyance recorded in Deed Book 16, Pages 163 and 164, of the Public
Records of Collier County, Florida.
Less the following described parcel:
Those portions of Lots 5 and 6, Triangle Lake, a subdivision in Section 11, Township 50 South,
Range 25 East, as per plat thereof recorded in Plat Book 4, Page 38, Public Records of Collier
County Florida, being described as follm.vs:
Commence at the northwest corner of said Lot 6; thence along the west hne and southerly
extension of said Lot 6, south 00 degrees 33' 46" East, 245.26 feet to the northerly existing right
of way line of State Road 90 (US 41) (per Section 0301 0-2116) for a Point of Beginning; thence
along said southerly extension and west line North 00 degrees 33'46" West, 24.82 feet to the
beginning of a curve concave southwesterly; thence along the arc of said curve the right, having
a radius of 11,529.16 feet, a central angle of 00 degrees 47' 18.3", an arc of 158.65 feet, the chord
tor which bears South 53 degrees 53'54" East to the east line of said Lot 5 and the end of said
curve; thence along said east line and southerly extension South 37 degrees 59'11" West 20.01
feet to said northerly existing right of way line and the beginning of a curve concave
southwesterly; thence along said northerly existing right of way line, the arc of said curve to the
left, having a radius of 11,509.16 feet. a central angle of 00 degree 42'45.9", an arc length of
143.17 feet, the chord for which bears North 53 degree 51 '48": West to the end of said curve and
the Point of beginning.
15
Agenda Item No. 1682
November 10,2009
Page 18 of 20
iN WITNESS WHEREOF, the pal1ies hereto have set forth their hands and seals.
AS TO LESSOR:
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
COLLIER COUNTY COMMUNITY
REDEVELOPMENT AGENCY
, Deputy Clerk
BY:
JIM COLETTA, Chairman
o
AUTO PRIDE COLLISION CENTERS,
INC.,
BY:~Y ~ ~~/-
J EPH FORMICA
IT : President
AS TO LESSEE:
S signat}:lr~
u rot tJ. Jr!0J ~ b:fi~
(print name)
/.
~
~SS (signatur~
~,//k w~ ~
(print name)
A~d as to f3 and legal SUffiCienCY,:
~~ ~~*-.
Jenni B. White -
Assistant County Attorney
16
"EXHIBIT A" SITE
THE PREMISES
PLAN
AND TENANT'S
DEPICTING THE MULTI-TENANT
EXCLUSIVE AREA
~0~cElRf1?J\1,No. 16G2
November 10, 2009
Page 19 of 20
AutoPride Leased Premises
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'iI legal Doscriptlon: TRIANGLE LAKE
1'. .'. Jill.OTS 5.1~ I.ESS TIIAT PORTION OF
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7-\genda Item ~~o. 16(;~
Nove1~i~
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