Agenda 12/16/2008 Item #10A
Agenda Item No. 10A
December 16, 2008
Page 1 of 35
Executive SUmmary
Recommendation to approve an Agreement for Sale and Purchase with The
Islands Marina, LLC and Port of the Islands Properties, LLC for the
purchase of certain portions of the Port of the Islands Marina property for a
purchase price of $5,488,000 which includes $4,750,000 cash at closing and
a $738,000 Seller charitable donation, together with a second charitable
donation of furniture, fixtures and equipment valued at $105,000, with
additional costs not to exceed $95,800.
OBJECTIVE: Request approval and execution of the attached proposed
Agreement for Sale and Purchase (Agreement) between the Board of County
Commissioners (Board) and The Islands Marina, LLC and Port of the Islands
Properties, LLC (Seller).
CONSIDERATIONS: The portions of the Marina to be purchased (Property)
include:
-
. Approximately 2.4 acres of commercially zoned waterfront land currently
used for boat trailer and car parking and boat and trailer storage;
. An oversized single boat launch ramp;
. Approximately 15,400 square feet of submerged land (boat launch
expansion area) together with necessary easements to allow for
temporary boat tie-off during loading, unloading, and fueling operations;
. Non-exclusive use of a 94 space parking facility;
. Approximately 1.46 acres of commercially zoned upland property together
with necessary easements for access and egress;
. A fueling facility;
. A 7,400 square foot marina building that houses a ship store, bathrooms,
offices and a Manatee & 10,000 Islands educational center on
approximately 1.4 acres of commercially zoned waterfront property.
. Sufficient additional square footage exists within the marina building for
the construction of a permanent Ochopee Fire Station with future EMS
capabilities.
A location map is attached.
Real Property Management's staff appraiser obtained two independent
appraisals on the Property, The $5,488,000 purchase price presented reflects the
lower of the two County appraisals. The County will pay $4,750,000 cash at
closing and receive a charitable donation of $738,000 from the Seller at closing.
Incorporated into the Agreement are the following additional provisions:
1. In addition to the Property, the County will purchase ship's store inventory
at Seller's cost. Further, the County will receive a second charitable
donation consisting of all of the furniture, fixtures, trade fixtures and
Agenda Item No. 10A
December 16, 2008
Page 2 of 35
equipment located on the Property and used in connection with the
Property, which donation is valued at $105,000.
2. The Seller and/or his assigns will be granted a lease for the use of office
space within the marina building for a period of nine (9) years without
charge. The lease is attached as Exhibit E of the Agreement.
3. The Seller and/or his assigns will be allowed to retain the exclusive use of
six (6) loading and unloading parking spaces for marina docks located
east of the Property.
4. The Seller and/or his assigns will be granted a temporary easement for
access and egress over the 1.46 acre commercially zoned upland parcel.
This easement will terminate at such time as it is determined to cause
interference with County development plans or uses,
5. Closing will occur on or before 12/31/08.
In conjunction with the purchase, the County will be assuming two (2) tenant
leases currently in force affecting office space within the marina building. With
renewal options these leases will terminate no later than November 30, 2011.
The assumption of these leases cannot be avoided and is purely incidental to the
purchase of the Property. The leases will provide additional revenue to the
County and will not impair the operations and security of the Property. As the
leases terminate, the vacated space will be available for future growth and
expansion.
The County will also be assuming a number of long term agreements for the
storage of boats and boat trailers within designated areas on the Property, and
will be entering into additional short and long term agreements for boat and trailer
storage. This activity is an integral part of existing marina operations, and will be
an additional source of revenue for the County.
The County will also be assuming or otherwise obtaining all licensing and permits
necessary to carry on the existing operations of the facility.
A single-walled underground gasoline storage tank presently exists on the
Property, which must be replaced no later than December 31, 2009. The County
will be responsible for removing and replacing this tank, but the Seller will be
responsible for any costs for remediation of soil and ground water contamination
discovered in the removal and replacement process. Pursuant to Paragraph 3.03
of the Agreement, $200,000 will be held in escrow and will be distributed in
accordance with terms and conditions of the Agreement for this purpose
The purchase is contingent upon favorable environmental reports and
assessments on the Property.
The purchase is further contingent upon the County receiving, from the Port of
the Islands Community Improvement District (CID), a perpetual non-exclusive
easement for access and egress by the general public over and upon the right of
Agenda Item No.1 OA
December 16, 2008
Page 3 of 35
way of Newport Drive from U.S. 41 to the Property, and a commitment that no
non ad valorem taxes will be due and payable to the CID for the continuation of
existing operations and for the construction and operation of a permanent fire
station. The required easement and commitment were approved by the CID
Board on December 5, 2008.
The attached proposed Agreement is in draft form only, and the vast majority of
the terms have been agreed upon. Additional terms and modifications have since
been negotiated and agreed upon. The final Agreement, executed by the Seller
and incorporating all provisions detailed in this Executive Summary, will be
available at or prior to the Board meeting.
FISCAL IMPACT: The total cost associated with the purchase of the Property
should not exceed $4,845,800 ($5,488,000 less charitable donation of 738,000
for the Property, $50,000 for inventory, $5,440 for the Environmental Site
Assessments, and $40,360 for the two (2) appraisals, title commitments, title
policies, escrow fee and recording of the documents).
Funding will be from the following sources: (Budget amendments are needed)
. $3,413,214.60 from Port of the Isle Boat Park project 80040; Parks and
Recreation Capital Improvement Fund 306.
. $ 585,000.00 from South Florida Water Management District, Parks and
Recreation Capital Improvement Fund 306, (budget
amendment is needed to recognize this revenue source)
. $ 50,000.00 from Marina Operations, General fund 001
. $ 614,585.40 from Ochopee Fire Control District Operating fund 146.
(budget amendment is needed to move $605,000 from
Reserves)
. $183,000.00 from Ochopee Fire Impact Fee fund 372. (budget
amendment is needed to move from Reserves)
. $4,845,800.00 Total
GROWTH MANAGEMENT IMPACT: This acquisition is consistent with the
Conservation and Coastal Management Element policies supporting Objective
10.3 that address developed coastal barriers and shorelines. It is also consistent
with the Recreation and Open Space Element policies supporting Objective 1.1;
Policy 1.3.2,
LEGAL CONSIDERATIONS: The proposed Agreement, Lease, Temporary
Easement and all related documents have been initialed for form and legal
sufficiency. Additional and/or modified terms since negotiated are to be
incorporated in the final Agreement. Subject to the Board's approval, the final
Agreement, once executed by the Seller, will require final approval by the County
Agenda Item No. 10A
December 16, 2008
Page 4 of 35
Attorney's Office. This item is not quasi-judicial, and as such does not require ex
parte disclosure. This item requires majority vote only. -JAB
RECOMMENDATIONS: That the Board of County Commissioners approves the
attached proposed Agreement for Sale and Purchase subject to incorporation of
additional and/or modified terms; authorizes the Chairman to execute the
Agreement on behalf of the County once the Agreement has been finalized,
executed by the Seller, and approved by the County Attorney's Office; authorizes
the preparation of related vouchers and Warrants for payment; directs the County
Manager or his designee to proceed to acquire the Property, to follow all
appropriate closing procedures, and to accept and record the Warranty Deeds
and Easements, and any and all necessary documents to obtain clear title to the
Property, in the Public Records of Collier County, Florida; and further directs the
County Manager or his designee to obtain all necessary business licenses;
accepts the non-cash charitable donations of $738,000 and $105,000; authorizes
the Chairman to execute the Lease, the Temporary Easement, IRS 8283 non-
cash charitable contribution forms, and any other associated documents
necessary to complete the purchase in accordance with the Agreement;
authorizes the acceptance of boat and trailer storage agreements once reviewed
and approved by the County Attorney's Office; and approve the attached budget
amendments. .
Prepared by: Gary Bigelow, Property Acquisition Specialist, Real Property
Management/Facilities Management and Hans Russell, Sr. Property Acquisition
Specialist, Real Property Management/Facilities Management.
Page 1 of 1
Agenda Item No. 10A
December 16, 2008
Page 5 of 35
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
10A
Meeting Date:
Recommendation to approve an Agreement for Sale and Purchase with The Islands Marina,
LLC and Port of the Islands Properties, LLC for the purchase of certain portions of the Port of
the Islands Marina property for a purchase price of $5,488,000 which includes $4,750,000
cash at closing and a $738,000 Seller charitable donation, together with a second charitable
donation of furniture, fixtures and equipment valued at $105,000, with additional costs not to
exceed $95,800. (Marla Ramsey, Public Services Administrator)
12/16/2008 9:00:00 AM
Approved By
Kathy Carpenter
Public Services
Executive Secretary
Public Services Admin.
Date
11/7/20084:29 PM
Approved By
Marla Ramsey
Public Services
Public Services Administrator
Date
Public Services Admin.
11/10/20082:33 PM
Approved By
OMS Coordinator
Administrative Services
Applications Analyst
Information Technology
Date
12/9/20088:36 AM
Approved By
Skip Camp, C.F.M.
Facilities Management Director
Date
Administrative Services
Facilities Management
12/9/2008 1 :33 PM
Approved By
County Manager's Office
Senior Management/Budget Analyst
Office of Management & Budget
Date
Susan Usher
12/9/2008 1 :SS PM
Approved By
Jennifer A. Belpedio
County Attorney
Assistant County Attorney
County Attorney Office
Date
12/10/200810:43 AM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
12/10/20084:59 PM
file://C:\AgendaTest\Export\118-December%20 16,%202008\1 0.%20COUNTY%20MAN...
12/1 0/2008
PROJECT: PORT OF THE ISLANDS MARINA
PROJECT NO.: 487370
FOLIO NOs,: 01067080606 & 01067083807
Agenda Item NO.1 OA
December 16, 2008
Page 6 of 35
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT IS made and entered into this day of December, 2008 by and
between THE ISLANDS MARINA, LLC, a Florida limited liability company, and PORT OF
THE ISLANDS PROPERTIES, LLC, a Florida limited liability company (hereinafter
collectively referred to as "Seller"), and COLLIER COUNTY, A POLITICAL SUBDIVISION OF
THE STATE OF FLORIDA (hereinafter referred to as "Purchaser").
WITNESSETH
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell and
transfer to Purchaser, certain uplands portions of that property known as the Port of the Islands
Marina, to include approximately 2_4 acres of commercially zoned watertront land currently
used for boat trailer and car parking, an oversized single boat launch ramp, approximately
15,466 square feet of submerged land (boat launch expansion area), non-exclusive use of a 94
space parking facility, approximately 1.46 acres of commercially zoned upland property, a
fueling facility, and a 7400 square foot marina building, together with the ship's store,
bathrooms, offices, and Manatee and 10,000 Islands educational center housed therein, with
sufficient excess square footage within said marina building in which to build a permanent
Ochopee fire station, on approximately 1.4 acres of commercially zoned waterfront property;
and
WHEREAS, in connection with said purchase and sale, Purchaser requires perpetual,
non-exclusive Public Access Easements over, under, upon and aCfOSS portions of Seller's
property, and the property of others, for access and ingress between the public right of way of
U.S. Route 41 and all portions of the property to be purchased and sold over and upon the
entke width of Newport Drive and along the westerly side of other property of Seller, as
depicted on attached Exhibit B-1, together with such easements as may be necessary for use
of the non-exclusive parking facility, and together also with easements necessary and sufficient
to allow for riparian access and temporary boat tie-off during launching, loading, unloading and
fueling operations along tne waterfront portions of the property to be purchased; and
WHEREAS, Purchaser further requires such other tangible and intangible assets as may
be necessary to the operation of the ship's store, office leasing, Manatee and 10,000 Islands
educational center, boat and trailer storage, boat launch, fueling facility, parking facilities and
waterfront operations existing upon the property to be purchased or used in connection
therewith; and
WHEREAS, the land and buildings, easements and other tangible and intangible assets
referenced hereinabove are collectively referred to herein as the "Property"; and
WHEREAS, Seller desires to convey and otherwise transfer the Property to Purchaser on
the terms and conditions set forth herein, and Purchaser has agreed to compensate Seller for
such conveyance and transfer of the Property in the manner hereinafter described;
NOW THEREFORE, in conSideration of these premises, the sum of Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, it is agreed by and between the parties as follows:
I. PROPERTY SUBJECT TO PURCHASE AND SALE
1,01. The property to be purchased and sold shall consist of the following elements:
1,011. That certain parcel containing approximately 4.09 acres and being more
particularly described an Exhibit A-1 attached hereto and incorporated herein by
reference, Said parcel contains commercially zoned waterfront lands, boat trailer and car
parking, boat launch ramp, approximately 15.466 square feet of submerged land (boat
launch expansion area), fueling station and 7400 square foot marina building as
hereinabove referenced and shall be conveyed together with all improvements, fixtures,
Agenda Item No. 10A
appurtenances and appurtenant easements, including but. not limtted. to the rl9t\l!!ember 16, 2008
attributable to the 4.09 acre parcel under that certain ReCiprocal Parking Easement Page 7 of 35
Agreement dated June 20, 2006 and recorded June 23, 2006 at O.R. Book 4060, Page
3206, Public Records of Collier County, Flonda (provided that Seller retains such rights
under such Easement Agreement that are not attributable to the Property), that certain
Easement and License Agreement dated December 14, 2007 and recorded January 8,
2008 at O.R. Book 4318, Page 3206, Public Records of Collier County, Florida, and that
certain Facilities Maintenance Agreement between Port of the Islands Marina
Condominium Association, Inc. and The Islands Marina, lLC dated July 31, 2008 and to
be recorded in the Public Records of Collier County, Florida prior to Closing.
1.012. That certain parcel containing approximately 1.46 acres of commercially zoned
upland property and being more particularly described on Exhibit A-2 attached hereto
and incorporated herein by reference, which shall be conveyed together with all
appurtenant easements, including but not limited to the rights attributable to the 1.46 acre
parcel under that certain Reciprocal Parking Easement Agreement dated June 20, 2006
and recorded June 23, 2006 at O.R. Book 4060, Page 3206, Public Records of Collier
County, Florida.
1.013. A perpetual, non-exclusive easement for all purposes of vehicular and pedestrian
access and ingress, including use by the general public, between the public right of way
of US. Route 41 and the parcei described on Exhibit A.2, the area of said easement
being more particularly described on Exhibit 8-1 attached hereto and incorporated herein
by reference.
1.014. A perpetual, non-exclusive easement for all purposes, including use by the
general public, of riparian access and temporary boat tie-off during launching, loading,
unloading and fueling operations along the waterfront portions of the parcel described on
Exhibit A.1, the area of said easement being more particularly described on Exhibit B-2
attached hereto and incorporated herein by reference.
1.015. Those tangible and intangible assets necessary to the operation of the ship's
store, office leasing, Manatee and 10,000 Islands educational center, boat and trailer
storage, boat launch, fueling facility, parking facilities and waterfront operations
(hereinafter collectively referred to as the "Operations") existing upon the parcel
described on Exhibit A-1 or used in connection therewith, including but not limited to the
following (except to the extent certain items of personalty are expressly excluded below):
(a) All furniture, fixtures and equipment located within the ship's store or utilized
in conjunction with the ship's store operations (Which does not include inventory,.
Christopher Shucart's personal office furniture, tools and equipment utilized in
maintaining the marina property, and the marina golf cart). Purchaser and Seller
agree that furniture, fixtures and equipment have a fair market value of One
Hundred Five Thousand and 00/100 Doliars ($105,000.00) and will be conveyed
to Purchaser as a charitable donation. The furniture, fixtures and equipment will
be conveyed to Purchaser in their "as is" condition and without warranty of
fitness or condition.
(b) INTENTIONALLY DELETED.
(c) Leases, storage agreements, and other contracts to be assumed, as more
particularly described on Exhibit 0 attached hereto and incorporated herein by
reference.
(d) All software, technical and other supplies necessary to the Operations.
(e) To the extent assignable, all licenses, permits, registrations and consents
necessary to the conduct of the Operations.
(f) All customer lists, customer contacts, customer relationships and goodwill
associated with and related to the Operations.
(g) All other assets, tangible and intangible, used in connection with the
Operations; but excluding cash, accounts receivable, and such property which is
not specifically related to the Operations and which has been, and continues to
be, used by Seller in connection with Seller's other businesses.
Notwithstanding the foregoing, Seller shall retain the exclusive right to use the Port of the
Islands Marina website and logo, and the non-exclusive right to use the term ~Port of the
Islands Marina."
Agenda Item No. 10A
December 16, 2008
1.016. In addition to the foregoing, Purchaser shali have the option, but not the Page 8 of 35
obligation, to purchase, at Selier's cost, any or ali of the inventory and other items of
personalty located within the ship's store and marina building (other than those items
described in Paragraph 1.015(a), above, as expressly exclude<! from the sale). Items to
be purchased hereunder shall be determined based upon a physical inventory to be
conducted by representatives of the Seller and the Purchaser prior to Closing. Any
inventory or other personalty not so purchased shall be removed from the Property by
Seller prior to Closing.
1.017. At the time of Closing, Purchaser shall grant to Seller a temporary easement for
pedestrian and vehicular access over and upon the roadway existing along the westerly
and southerly boundaries of the 1.46 acre parcel. The temporary easement is described
and depicted on attached Exhibit A-3, which is in'corporated herein by reference. This
temporary easement will be terminable at such time as it is determined to cause
interference with Purchaser's development plans for, or use of, the Property.
1.018. Purchaser acknowledges that Seller has historically leased or licensed twenty-
one (21) of the wet.slips within the Port of the Islands Marina basin for the operation of
commercial vessels, Prior to Closing, Seller shall assign to itself the right to continue
this historical use by recording an assignment of such rights in the Collier County Public
Records in accordance with Paragraph 17.1 of the Fourth Amendment to Declaration of
Condominium of Port of the Islands Marina, a Condominium, recorded in Official
Records Book 4405, Page 3615, of the Collier County, Florida, Public Records. The
rights associated with such assignment are excluded from the Property.
1.019. Purchaser agrees and acknowledges that Seller will continue its efforts to sell
and lease wet-slips within the Port of the Islands Marina, and that the construction of
boat storage facilities on that portion of the Property described in attached Exhibit A-1
by Purchaser or its successor(s) in title will compete directly with Seller's efforts in this
regard. For the foregoing reasons, Purchaser agrees that it will not construct any boat
storage facilities on said parcel until the earlier to occur of: 1. Such time as 96% or
more of the 175 Port of the Islands Marina wet-slips have erther been leased by Seller,
or have been conveyed to individual third-party buyers (excluding a bulk sale of ten (10)
or more such wet-slips to a single third-party buyer); or 2. Nine (9) years following
Closing.
In exchange for the foregoing restriction, Seller agrees that it will not construct or
operate any dry storage facility, convenience store, or fuel supply facility on Seller.
owned lands located within the Port of the Islands community for a period terminating on
the earlier of: 1. Nine (9) years following Closing; Dr 2. until Seller conveys such lands
(or portion thereof) to a bona-fide purchaser for value in an arm's length transaction (in
which case the land conveyed to the bona-fide purchaser shall be released from the
foregoing restriction).
The terms of this Paragraph 1.019 shall survive Closing.
1.020. Purchaser agrees and acknowledges that the parcel described in attached
Exhibit A-1 contains certain utility lines, fire hydrants, control boxes, and related
equipment that are intended to serve the Port of the Islands Marina wet-slips,
gangways, and related structures. To the extent necessary, SeUer shall be permitted to
reserve corresponding easements over the Exhibjt A-1 parcel at or prior to Closing,
provided that such reserved easements do not prevent Purchaser's intended use of the
Exhibit A-1 parcel.
II. ASSUMED LIABILITiES
2.01. Except for the leases, storage agreements, or contracts listed in Exhibit 0
attached hereto and except as otherwise provided in this Agreement, Purchaser shall not
assume any debt, accounts payable, liability, obligation, agreement, contract or lease, nor
any liability under local, State or Federal laws, of Seller, Seller shall retain liability for, and
shall indemnify Purchaser against, any such liabilities of Seller.
2.02. To the extent that any of the obligations listed on Exhibit D, or any other
obligations of Seller not related to the Operations, contain a provision calling for the
granting of a discount or discounts on the purchase of merchandise at the ship's store or
fueling station, Purchaser cannot and will not honor said arrangements, and Seller shall
be responsible for assuming any liability in this regard.
Agenda Item No. 10A
203. It is the intent of the parties that, except for the specific liabilities and oblig~mber 16, 2008
described in Exhibit D, exclusive, of any discount arrangements as stated, Purchaser shall Page 9 of 35
not be liable for any other liabilitIes or obligations of Seller related In any way to the
Operations or the Property whatsoever, whether fixed or contingent, known or unknown,
liquidated or unliquidated, arising now or in the future, and Seller shall jointly and severally
indemnify Purchaser against any and all such liabilities. Seller shall pay all liabilities and
obligations not expressly assumed by Purchaser as of the Closing. Purchaser does not
assume, and no transferee liability shall attach to Purchaser, with respect to any liabilities
or obligations of Seller or related in any way to the Operations or the Property or actions
of Seller, which are not specifically assumed by Purchaser pursuant to this Agreement,
including, without limitation, liabilities arising in connection with the Operations and the
activities of Seller prior to the Closing. The elimination of any risk of such transferee
liability attaching to Purchaser is a primary inducement to Purchaser's entering into this
transaction, in that Purchaser would not have entered into this transaction under
circumstances where any such transferee liability would or might attach to Purchaser, The
entire negotiations of the parties with respect to this transaction, including the purchase
price, were based upon the assumption and agreement that Purchaser would not succeed
to any liability or obligation of Seller, or related in any way to the Operations or the
Property, except for those liabilities and obligations expressly assumed in Exhibit D.
2,04. In the event that any obligation listed on Exhibit D requires rents received to be
prorated between Purchaser and Seller, unless acceptable alternative procedures are
made, Purchaser shall receive such rents in total and remit Seller.'s share thereof to Seller
as received.
III. PURCHASE PRICE AND PAYMENT
3.01. The purchase price (the "Purchase Price") for the Property shall be Five Million,
Four Hundred Eighty-Eight Thousand and no/100 Dollars ($5,488,000.00) (U.S. Currency)
payable as follows:
la) Four Million, Seven Hundred Fifty Thousand and no/100 Dollars ($4,750,000.00)
payable at Closing by wire transfer or County warrant from Purchaser to Selier.
(b) Seven Hundred Thirty.Eight Thousand and no/100 Dollars ($738,000.00) payable
at Closing as a charitable donation fram Seller to Purchaser.
3.02. INTENTIONALLY DELETED.
3.03. At Closing, Purchaser shall deposit a portion of the Purchase Price, in the amount
of Two Hundred Thousand and no/100 dollars ($200,000), in a segregated or dedicated
interest bearing escrow account to be maintained and held by Stewart Title Guaranty
Company, formerly known as Midwest Title Company, to be disbursed pursuant to
Paragraphs 16.02 or 16.04 hereof.
IV, CLOSING
4.01. The Closing of the transaction shall be held on or before December 31, 2008
unless extended by mutual written agreement of the parties hereto. The Closing shall be
held at the Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail
East. Naples, Florida. The procedure to be followed by the parties in connection with the
Closing shall be as follows:
4.011. Seller shall convey a marketable title to all elements of the Property free of
any liens, encumbrances, exceptions, restrictions, or qualifications. Marketable title
shall be determined according to applicable title standards adopted by the Florida
Bar and in accordance with Florida law. At the Closing, the Seller shall cause to be
delivered to the Purchaser the items specified herein and the following documents
and instruments duly executed and acknowledged, in recordable form:
4.0111. Warranty Deed in favor of Purchaser conveying title to the Property
Described in Exhibit A-1 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.011 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
Agenda Item NO.1 OA
December 16, 2008
(c) The Seller Lease, and the rights of the tenants and licensees listed on Page 10 of 35
attached Exhibit D.
(d) The parking easement described in Paragraph 9.04, below.
4.0112. Warranty Deed in favor of Purchaser conveying Iitle to the Property
Described in Exhibit A-2 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1,012 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments,
(b) Such ather easements, restrictions or conditions of record
4.0113. Easement In favor of Purchaser conveying rights to the Property
described in Exhibit B-1 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.013 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
4.0114. Easement in favor of Purchaser conveying rights to the Property
Described in Exhibit B-2 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.014 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
4.0115. Warranty Bill of Sale for furniture, fixtures and equipment described
in Paragraph 1.015(a), above, together with inventory and other personalty
determined in accordance with Paragraph 1.016, free and clear of all liens and
encumbrances.
4,0116. Assignment of leases, storage agreements and other contracts listed
on Exhibit D, together with all security deposits, pre-paid rents and storage
fees attributable thereto.
4.0117. Grantor's Non-Foreign, Taxpayer Identification & "GAP" Affidavits as
required by Section 1445 of the Internal Revenue Code and as required by the
title insurance underwriter in order to insure the "gap" and issue the policy
contemplated by the title insurance commitment.
4.0118 Public Disclosure Affidavits as required by Chapter 286, Florida
Statutes.
4.0119. W-9 Forms, "Request for Taxpayer Identification and Certification" as
required by the Internal Revenue Service.
4.01110. ClOSing Representative Statement.
4.01111. Combined Purchaser~SeHer Closing Statement.
4.01112. Such evidence of authority and capacity of Seller and its
representatives to execute, acknowledge and deliver this Agreement, and all
other documents as may be required to consummate the transaction
contemplated hereby, as Purchaser's counsel and/or Purchaser's title company
may reasonably determine.
4.01113. All documents and documentation required pursuant to Section VHI
hereof.
4.01114 Such other documents and documentation as Purchaser's counsel
may reasonably determine to be necessary for the transfer of those elements
of the Property specified in Paragraph 1.015, subparagraphs (c) through (I)
hereof.
4.01115. The Seller's executed counterpart of the Seller Lease.
Agenda Item No. 10A
December 16, 2008
Page 11 of 35
4.012. At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the
Seller the following:
4.0121. A wire transfer or negotiable instrument (County warrant) in an amount equal
to the Purchase Price. No funds shall be disbursed to Seller until the Title Company
verifies that the state of the title to the Property has not changed adversely since the
date of the last endorsement to the commitments, and the Title Company is
irrevocably committed to issue the owner's title pOlicies to Purchaser in accordance
with the commitments immediately after the recording of the deeds and easements.
4.0122. Funds payable to the Seller representing the cash payment due at Closing in
accordance with Section III hereof, shall be subject to adjustment for prorations,
adjustment for the credit set forth in Paragraph 7.05 hereof, adjustment for sums to be
paid under Paragraphs 1.015(b) and 1.016 hereof, and other adjustments as set forth
herein,
4.0123. A Temporary Access Easement as referenced in Paragraph 1.017 hereof.
4.0124. The Purchaser's executed counterpart of the Seller Lease.
4.0125. Combined Purchaser-Seller Closing Statement
4.0126. Such documentation as may be necessary to evidence (for purposes of filing
with the appropriate taxing bodies) the Seller charitable contribution under Paragraph
3.01(b) and Paragraph 1.015(a).
4.02. Eacn party snaH be responsible for payment of its own attorney's fees. Seller, at its
sole cost and expense, shall pay at Closing all documentary stamp taxes due relating to
the recording of the warranty deeds and easements, in accordance with Chapter 201.01,
Florida Statutes, and the cost of recording any instruments necessary to clear Seller's title
to the Property. The cost of the owner's Form B tille policies, Issued pursuant to the
commitments shall be paid by Purchaser. The cost of the title commitments, title search,
and Closing fees charged by Title Company shall also be paid by Purchaser,
4.03. Purchaser shall pay for the cost of recording the warranty deeds and easements.
Real Property taxes shall be prorated based on the current year's tax with due allowance
made for maximum allowable discount, homestead and any other applicable exemptions
and paid by Seller. If Closing occurs at a date upon which the current year's millage is not
fixed, taxes will be prorated based upon such prior year's millage.
V. REQUIREMENTS AND CONDITIONS
5.01. Upon execution of this Agreement by both parties or at such other time as
specified within this Section, Purchaser and/or Seller, as the case may be, shall perform
the following within the times stated, which shall be conditions precedent to the Closing:
5.011. Purchaser has obtained, as of November 24, 2008, AL TA commitments for
owner's title insurance policies (AL T A Form 8-1970) covering real estate elements of
the Property, together with hard copies of all exceptions shown thereon. In addition
to Purchasers rights in paragraph 5.013 hereof to notify Seller of title defects or
objections based on a survey, Purchaser shall have until December 24, 2008 to
notify Seller in writing jf the title commitments contain exceptions for matters that are
not acceptable to Purchaser, that title is unmarketable, or the title commitments
require corrective action to be taken to make the title marketable, Seller shall have
the right to cure such matters as provided in Paragraph 5.012 hereof and shall be
obligated to cure, or permit payment of, any voluntarily created liens encumbering
the Property at Closing.
5.012. If Purchaser shall fail to advise the Seller in writing of any such objections in
Seller's title in the manner herein required by this Agreement, the title shall be
deemed acceptable. Upon notification af Purchaser's objection to title, Seller shall
have 30 days to remedy any such objections or defects in order to convey good and
marketable title and Seller shall use its best efforts to do so in order to make title
good and marketable, However, Sellers best efforts do not require that It payor
satisfy any inVOluntarily created or suffered liens that it disputes, but Purchaser is not
required to accept such involuntarily created or suffered liens. Seller shall be
Agenda Item NO.1 OA
required to payor satisfy vOluntarily created liens at closing. In the event Sel~oomber 16, 2008
unable to cure said objections within said time period, Purchaser, by providing Page 12 of 35
written notice to Seller within seven (7) days after expiration of said thirty (30) day
period, may accept titJe as it then is, waiving any objection; or Purchaser may
terminate the Agreement or Purchaser and Seller may extend the Agreement by
mutual written agreement of the parties hereto. A failure by Purchaser to give such
written notice of termination within the time period provided herein shall be deemed
an election by Purchaser to accept the exceptions to title as shown in the title
commitment.
5.013. Seller agrees to furnish any existing surveys of the Property in Seller's
possession to Purchaser within 10 (ten) days of the effective date of this Agreement.
Purchaser shall have the option, at its own expense, to obtain a current survey of the
Property prepared by a surveyor licensed by the State of Florida. No adjustments to
the Purchase Price shall be made based upon any change to the total acreage
referenced in Exhibits A-1, A-2, B-1 and B-2, jf any.
VI. APPRAISAL
6.01. Purchaser has obtained the required appraisals to determine the vaiue of the
Property pursuant to the requirements of Aorida Statutes, s.125.355.
VII. INSPECTION
7.01. Purchaser shall have until December 24,2008, ("Inspection Period"), to determine
through appropriate investigation that
7.011. There are no abnormal drainage or environmental requirements to the
development of the Property.
7.012. With the exception of the existing, single-walled Underground Storage Tank,
the Property is in compliance with all applicable State and Federal environmental laws
and the Property is free from any pollution or contamination.
7.013. The Property can be utilized for its intended uses and purposes for boat trailer
and car parking, boat launch ramps, boat and traIler storage, waterfront and other
park and recreational uses, a fueling facility, a ship's store, rest rooms, offices, a
Manatee and 10,000 Islands educational center, and a fire station and emergency
medical services facility
7.014. All structures and improvements on the property are sound, and alf systems,
fixtures and appliances are in good and safe operating condition.
7.015. The intended uses of the Property as a continuation of existing Operations
and as a permanent fire station and emergency medical services facility is and will be
permissible under existing zoning and planning regulations.
7.02. If Purchaser is not satisfied, for any reason whatsoever, with the results of any
investigation, Purchaser shall deliver to Seller. prior to the expiration of the Inspection
Period, written notice of its intention to waive the applicable contingencies or to terminate
this Agreement. If Purchaser fails to notify the Seller in writing of its specific objections as
provided herein within the Inspection Period, it shall be deemed that the Purchaser is
satisfied with the results of its investigations and the contingencies of Section VIII shall be
deemed waived. In the event Purchaser elects to terminate this Agreement because of the
results of its inspection and investigations, Purchaser shall deliver to Seller copies of all
engineering reports, structural and systems inspection reports, and environmental and soil
testing results commissioned by Purchaser with respect to the Property.
7.03. Purchaser and its agents, employees and servants shall. at their own risk and
expense, have the right to go upon the Property at all reasonable times for the purpose of
surveying and conducting site analyses, soil borings and all other necessary investigations
and inspections. Purchaser shall, in periorming such tests, investigations and inspections,
use due care not to damage the property in any manner. Seller shall be notified by
Purchaser no less than twenty-four (24) hours prior to any said inspection of the Property.
7.04. Seller acknowledges that the Purchaser, or its authorized agents, shall have the
right to inspect the Property at any time prior to the Closing, and Seller shari assist
Purchaser in obtaining tenants' cooperation in the performance of these inspections.
Agenda Item NO.1 OA
7.05. At Closing, Seller shall validly transfer to Purchaser the 20 Year Roof Mem~mber 16, 2008
Limited Warranty received from Certainteed Commercial Roofing Systems dated Page 13 of 35
September 23, 2006 Seller shall have no further liabiiity regarding the physical condition
of the Property, and Purchaser agrees to accept the Property in its "as IS. condition
without warranty as to fitness or condition.
7.06. Prior 10 Closing, Selier shali ensure that the inoperable fire hydrants existing upon
the Property are connected and operational and are capable of delivering reliable
pressures and flows acceptable to the Ochopee Fire and Rescue District.
VIII. POSSESSION EXISTiNG LEASES AND AGREEMENTS. AND OCCUPANCY
8.01. Purchaser shall be entltied to fuli possession of the Property at Closing, excepting
only those tenants in possession under those existing leases, storage agreements and
contracts set forth in Exhibit D, and premises to be leased to Seller at the time of Closing
in accordance with the Lease Agreement set forth in Exhibit E attached hereto and made
s part hereof by reference.
8.02. At Closing, Seller shall execute, acknowledge and deliver to Purchaser, in
recordable form, a valid and enforceable assignment of all of the aforesaid leases,
storage agreements and contracts and the rents, taxes, storage fees and assessments
associated therewith. Rents, taxes, storage fees, and assessments and other expenses
pertaining to the Property shall be prorated between Seller and Purchaser at closing
based upon the applicable period, and Seller shall be responsible for payment, at closing,
of all taxes, assessments and other expenses pertaining to the Property up to and
including the date of Closing.
8.03. At Closing, Seller shall pay over to Purchaser any and all security deposits and
pre-paid rents and storage fees held on account of those tenants in possession as shown
on Exhibit D.
8.04. Prior to December 24, 2008, Seller shall provide Purchaser with acceptable proof
that all leases and storage agreements are in good standing and not in default and,
specifically, that all tenants have procured and are maintaining policies of insurance as
set forth in their leases or otherwise, and that the Indemnities of said policies may be
assigned to Purchaser as Landlord. Seller further agrees, prior to December 24, 2008, to
permit Purchaser to inspect Selle~s rental receipts (rent rolls) for the past two (2) years
for all current tenants subject to written leases, and to review repair and maintenance
records for the buildings and other improvements upon the property, and Purchaser's
performance hereunder shall be contingent upon the acceptability of said inspection and
review.
8.05. At the time of Closing, with the exception of those areas occupied in accordance
with those leases, storage agreements and contracts set forth on Exhibits D and E, in
good standing, the Property will be delivered to Purchaser broom clean and free from all
occupants, and their possessions, and the structures, systems and other improvements
will be in the same condition as existed at the time of Purchaser's structural and systems
inspections, reasonable wear and tear resulting from customary use and corrections to
discovered defects excepted.
8.06. Without limitation of the foregoing, any boats, trailers, vehicles or other items
existing on the property by virtue of storage agreements that are not in good standing
shall be removed from the Property prior to Closing, and Seller shall assume all liability
therefor.
8.07. Performance by Purchaser hereunder is conditioned upon a satisfactory
determination and opinion from the Purchaser's counsel that Purchaser may assume all
leases, storage agreements, and contracts set forth on Exhibit D, which said
determination shall be made prior to December 24, 2008.
8.08. At or before Closing, Seller shall provide to Purchaser estoppel letters from all
current tenants subject to written leases, including attornment provisions and in form and
content acceptable to Purchaser's counsel.
IX. ADDITIONAL CONTINGENCIES
Agenda Item NO.1 OA
9.01. Performance by Purchaser hereunder is contingent upon Purchasers obtaiDlellember 16, 2008
prior to Closing and at Purchaser's sole cost and expense, the following items from Port Page 14 of 35
of the Islands Community Improvement District:
9.011. A perpetual, non-exclusive easement for all purposes of vehicular and
pedestrian access and ingress, including use by the general public. from the public right
of way of U.S. Route 41 to the south boundary of the parcel deSCribed on Exhibit A-1,
over the entire width of the right at way of Newport Drive.
9.012. Adequate assurances, by estoppel letter or othel'Vifise, that sufficient
Equivalent Residential Connections (ERe's) will be provided to Purchaser for existing
uses and Operations plus uses as a fire station, irrespective of the location of the fire
station upon the Property, all at no present or future cost to Purchaser.
9.02. Performance by Purchaser hereunder is contingent upon a determination, by
Purchaser's counsel, that the rights attributable to the Property under that certain
Reciprocal Parking Easement Agreement dated June 20, 2006 and recorded June 23,
2006 at O.R. Book 4060, Page 3149, Pubiic Records of Collier County, Florida, run with
the Property and will inure to the benefit of Purchaser after Closing, and that Purchaser
will not thereby be subject to liabilities unacceptable to a public governmental entity
without modification to said Reciprocal Parking Easement Agreement.
9.03. Performance by Seller hereunder is contingent upon the execution, by Seller and
Purchaser, of that certain Lease Agreement set forth in Exhibit E attached hereto and
incorporated herein by reference, which said Lease Agreement provides in pertinent part
that Seller and/or Seller's assigns shall be allowed exclusive use of certain offices in the
marina building far a period of nine (9) years following Closing at no cost to Seller other
than the charges reflected in the Lease Agreement.
9.04. Performance by Seller is contingent upon Purchaser permitting Seller andlor
Seller's assigns to retain perpetual exclusive use of six (6) parking spaces for purposes
of loading and unloading, two (2) of said spaces to be located as conveniently as
possible to each of the access ways to Docks A, B, and C of the Port af the Islands
Marina Condominium at locations to be from time to time determined, and the provisions
of this Paragraph 9.04 shall survive the Closing.
9.05. Performance by Purchaser is contingent upon Purchaser's ability to obtain all
permits and licenses necessary to continue the Operations currently existing upon the
Property without interruption. To aid in this endeavor, Seller agrees that Seller and
certain members of Seller's staff shall be available to Purchaser to provide assistance
and consultation during a transition period not to exceed two (2) months following
Closing. In addition, if necessary, Seller agrees to continue Operations under Seller's
permits and licenses during this period for the benefit and account of Purchaser until
Purchaser's permits and licenses are effective, all at no additional cost or expense to
Purchaser.
X. PRORATIONS
10.01. Ad valorem taxes and assessments due and payable on the Property at Closing
shall be paid by Seller at Closing and prorated between the Seller and Purchaser. Seller
shall further pay all 2008/2009 non-ad valorem taxes and assessments.
10.02. Rents, storage fees, and any other adjustments shall be prorated between the
parties as of the date of Closing, with Seller being entilied to these items through the date
of Closing and Purchaser being so entitled thereafter.
XI. TERMINATION AND REMEDIES
11.01. If Seller shall have failed to perform any of the covenants and/or agreements
contained herein which are 10 be performed by Seller, within ten (10) days of written
notification of such failure, Purchaser may, at its option, terminate this Agreement by
giving wntten notice of termination to Seller. Purchaser shall have the right to seek and
enforce all rights and remedies available at Jawor in equity to a contract vendee,
including the right to seek specific performance of this Agreement.
1102. If Purchaser has not terminated this Agreement pursuant to any of the provisions
authorizing such termination, and Purchaser fails to close the transaction contemplated
hereby or otherwise fails to perform any of the terms, covenants and conditions of this
Agenda Item No. 10A
Agreement as required on the part of Purchaser to be performed, provided Seller is filltirember 16, 2008
default, then as Sella~s sole remedy, Seller shall have the right to tenninate and cancel Page 15 of 35
this Agreement by giving written notice thereof to Purchaser, and neither party shall have
any further liability or obligation to the other.
11.03. The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement provide mutually satisfactory and sufficient remedies to each
of the parties, and take into account the peculiar risks and expenses of each of the
parties.
XII. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
12.01. Seller and Purchaser represent and warrant the following:
12.011. Seller and Purchaser have full right and authority to enter into and to
execute this Agreement and to undertake all actions and to pertorm all tasks
required of each hereunder Seller is not presently the subject of a pending,
threatened or contemplated bankruptcy proceeding.
12.012, Seller has full right, power, and authority to own and operate the
Property, and to execute, deliver, and perform its obligations under this
Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby. All necessary authorizations
and approvals have been obtained authorizing Seller and Purchaser to execute
and consummate the transaction contemplated hereby. At Closing, certified
copies of such approvals shall be delivered to Purchaser andlor Seller, if
necessary.
12.013. The warranties set forth in this Section shall be true on the date of this
Agreement and as of the date of ClOSing.
12.014. Seller represents that it has no knowledge of any actions, suits. claims,
proceedings, litigation or investigations pending or threatened against Seller, at
law, equity or in arbitration before or by any Federal, State, municipal or other
governmental instrumentality that relate to this Agreement or any other property
that could, jf continued, adversely affect Seller's ability to sell the Property to
Purchaser according to the terms of this Agreement.
12.015. No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof, excepting those portions subject to
leases, storage agreements and contracts to be assumed or granted as detailed
on Exhibits 0 and E hereto.
12.016. Until the date fixed for Closing, so long as this Agreement remains in
force and effect, Seller shall not encumber or conl/ey any portion of the Property
or any rJghts therein, nor enter into any agreements granting any person or entity
any rights with respect to the Property or any part thereof, without first obtaining
the written consent of Purchaser to such conveyance, encumbrance, or
agreement, which consent may be withheld by Purchaser for any reason
whatsoever.
12.017. To the best of Seller's knowledge: Seller represents that there are no
incinerators, septic tanks or cesspools on the Property: all waste, if any, is
discharged into a community sanitary sewer system. Seller represents that it has
no knowledge that any pollutants are or have been discharged from the
Property, directly or indirectly into any body of water. Other than the
Underground Storage Tank referenced in Section XVI hereof, Seller represents
that, to the best of Seller's knowledge, the Property has not been used for the
production, handling, storage, transportation, manufacture or disposal of
hazardous or toxic substances or wastes, as such terms are defined in
applicable laws and regulations, or any other activity that would have toxic
results, and no such hazardous or toxic substances are currently used in
connection with the Operations on the Property other than the sale of gasoline,
and there 15 no proceeding or inquiry by any authority with respec1 thereto. Seller
represents that it has no knowledge that there is ground water contamination on
the Property or potential of ground water contamination from neighboring
properties. Seller represents that, to the best of Sener's knowledge, no storage
tanks for gasoline or any other substances are or were located on the Property
at any time during or prior to Seller's ownership thereof, with the exception of the
Agenda Item No. 10A
existing single-walled Underground Slorage Tank and prior fuel tank!il8'llllmber 16, 2008
disclosed to Purchaser. Seller represents that, to the best of Seller's knowledge, Page 16 of 35
no part of the Property has been used as a sanitary landfill.
12.018. Seller has no knowledge that the Property and Seller's operations
concerning the Property are in violation of any applicable Federal, State or local
statute, law or regulation, or of any notice from any govemmental body that has
been served upon Seller claiming any violation of any law, ordinance, code or
regulation or requiring or calling attention to the need for any work, repairs,
construction, alterations or installation on or in connection with the Property in
order to comply with any laws, ordinances, codes or regulation with which Seller
has not complied.
12.019. To the best of Seller's knowledge, there are no unrecorded restrictions,
easements or fights of way (other than existing zoning regulations) that restrict
or affect the use of the Property, and there are no maintenance, construction,
advertising, management, leasing, employment, service or other contracts
affecting the Property, other than as specifically disclosed to Purchaser.
12.020. Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefor, proposals for public improvement
assessments, pay-back agreements, paving agreements, road expansion or
improvement agreements, utility moratoriums, use moratoriums. improvement
moratoriums, administrative or other proceedings or governmental or quasi-
governmental investigations or requirements, formal or informal, existing or
pending or threatened which affect the Property or which adversely affects
Seller's ability to perfonn hereunder; nor is there any other charge or expense
upon or related to the Property which has not been disclosed to Purchaser in
writing prior to the effective date of this Agreement.
12.021. Seller acknowledges and agrees that Purchaser is entering into this
Agreement based upon Seller's representations stated above and on the
understanding that Seller will not cause the zoning or physical condition of the
Property to change from its ex~sting state on the effective date of this Agreement
up to and including the date of Closing. Therefore, Seller agrees not to enter
into any contracts or agreements pertaining to or affecting the Property and not
to do any act or omit to perform any act which would change the zoning or
physical condition of the Property or the governmental or quasi~govemmental
ordinances or laws governing same. SeUer also agrees to notify Purchaser
promptly of any change in the facts contained in the foregoing representations
and of any notice or proposed change in the zoning, or any other action or
notice, that may be proposed or promulgated by any third parties or any
governmental or quasi-governmentar authorities having juriSdiction of the
development of the Property which may restrict or change any other condition of
the Property.
12.022. At Closing, Seller shall deliver to Purchaser a statement (hereinafter
called the "Closing Representative Statement") reasserting the foregoing
representations as of the date of Closing, which provisions shall survive the
Closing,
12.023. Seller agrees to indemnify, reimburse, defend and hold Purchaser
harmless from any and all costs (including attorney's fees) asserted against,
imposed on or incurred by Purchaser, directly or indirectly, pursuant to or in
connection with the application of any Federal, State, local or common law
relating to pollution or protection of the environment which shall be in accordance
with, but not limited to, the ComprehensivB Environmental Response,
Compensation, and Liabilrty Act of 1980, 42 U.SC. Section 9601, et seq.,
("CERCLA" or "Superfund"), which was amended and upgraded by the
Superfund Amendment and Reauthorization Act of 1986 ("SARA"), including any
amendments or successor in function to these acts; provided, however, that
Seller's indemnity obligations hereunder are limited to environmental liability
arising from the acts or omissions of Seller and its employees, This provision,
and the rights of Purchaser hereunder, shall survive Closing and are not deemed
satisfied by conveyance of title.
12.024. Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense.
XIII. NOTICES
Agenda Item No. 10A
December 16, 2008
Page 17 of 35
13.01 Any notice, request, demand, instruction or other communication to be given to
either party hereunder shall be in writing, sent by registered or certified mail, or ovemight
delivery service, return receipt requested, postage and fees prepaid, addressed as
follows:
If to Purchaser:
Gary Bigelow
Real Property Management
Building W, Facilities Management
3301 Tamiami Trail East
Naples, Florida 34112
With a copy to:
Jennifer A. Belpedio, Esquire
Assistant County Attorney
Office of the County Attorney
Administration Building
3301 Tamiami Trail East
Naples, Florida 34112
lito Seller:
James Shucart
2614 Tamiami Trail North, Suite 700
Naples, FL 34103
Christopher Shucart
2614 Tamiami Trail North, Suite 615
Naples, FL 34103
With a copy to:
Will J. Dempsey, Esquire
Cheffy, Passidomo, Wilson & Johnson, LLP
621 Fifth Avenue South. Suite 201
Naples, FL 34102
13.02. The addressees and addresses for the purpose of this Section may be changed
by either party by giving written notice of such change to the other party in the manner
provided herein. For the purpose of changing such addresses or addressees only, unless
and until such written notice is received, the last addressee and respective address
stated herein shall be deemed to continue in effect for all purposes. For purposes of
notice requirements herein, notice shall be deemed given upon receipt.
XIV. REAL ESTATE BROKERS
14.01. Any and all brokerage commissions or fees shall be the sole responsibility of the
Seller. Seller shall indemnify Purchaser and hold Purchaser harmless from and against
any claim or liability for commission or fees to any broker or any other person or party
claiming to have been engaged by Seller as a real estate broker, salesman or
representative, in connection with this Agreement. Seller agrees to pay any and all
commissions or fees at closing pursuant to the terms of a separate agreement, if any,
XV. MISCELLANEOUS
15.01. This Agreement may be executed in any number of duplicate original
counterparts which together shali constitute the agreement of the parties.
15.02. This Agreement and the terms and provisions hereof shall be effective as of the
date this Agreement is executed by both parties and shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors, personal
representatives, successors, successor trustees, and assignees whenever the context so
requires or admits.
15.03. Any amendment to this Agreement shall not bind any of the parties hereto unless
such amendment is in writing and executed and dated by Purchaser and Seller. Any
amendment to this Agreement shall be binding upon Purchaser and Seller as soon as it
has been executed by both parties.
Agenda Item NO.1 OA
15.04 Captions and section headings contained in this Agreement are for convenle_mber 16, 2008
and reference only; in no way do they define, describe, extend or limit the scope or intent Page 18 of 35
of this Agreement or any provisions hereof.
15.05. All terms and words used in this Agreement, regardless of the number and
gender in which used, shall be deemed to include any other gender or number as the
context or the use thereof may require.
15.06. No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any provision of
this Agreement shall be applicable only to the specific instance to which it is related and
shall not be deemed to be a continuing or future waiver as to such provision or a waiver
as to any other provision.
15.07. If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to which such reference is made shall be extended to the next
succeeding business day.
15.08. Seller is aware of and understands that the "offer" to purchase represented by
this Agreement is subject to acceptance and approval by the Board of County
Commissioners of Collier County, Florida.
15.09. If the Seller holds the Property in the form of a partnership, limited partnership,
corporation, trust or any form of representative capaCity whatsoever for others, Seller
shall make a written public disclosure, according to Chapter 286, Florida Statutes, under
oath, of the name and address of every person haVing a beneficial interest in the Property
before Property held in such capacity is conveyed to the Purchaser.
15.10. This Agreement is governed and construed in accordance with the laws of the
State of Florida.
15.11. This Agreement will be effective as of the date of Purchaser's execution of this
Agreement.
XVI. UNDERGROUND STORAGE TANK RESPONSIBILITIES
16.01 As soon as practicable following Closing, and prior to December 31, 2009, the
Purchaser shall, at its own cost and expense, estimated to be in the amount of Two
Hundred Thousand and nol100 Dollars ($200,000), excavate and replace the existing
single-walled Underground Storage Tank in accordance with all Florida laws and
regulations.
16.02. At the time of said excavation and replacement, should it be determined that no
remediation of soil and ground water contamination resulting from the existing
Underground Storage Tank is required, all funds held in escrow pursuant to Paragraph
3.03 hereof, together with accrued interest, shall be paid over to Seller.
16.03. At the time of said excavation and replacement, should it be determined that
remediation of soil and ground water contamination resulting from the existing
Underground Storage Tank is necessary or required under Florida laws and regulations,
Seller shall reimburse Purchaser for any and art costs associated with such remediation,
including periodiC monitoring, in an amount not to exceed Two Hundred Thousand and
nol100 Dollars ($200,000) plus accrued interest.
16.04. Funds held in escrow pursuant to Paragraph 3.03 hereof, together with accrued
interest, shall be used to satisfy Seller's obligations under Paragraph 16.03. As expenses
are incurred under Paragraph 16.03, payments to the Purchaser shall be made from the
funds so held At such time that Purchaser obtains written approval from the Florida
Department of Environmental Protection (FDEP) that remediation complies with Florida
laws and regulations, and that no further monitoring activities are required, any remaining
funds held, together with accrued interest, shall be paid over to the Seller.
16.05. Following disbursement pursuant to Paragraphs 16.02 or 16_04 hereof, Seller
and Purchaser shall have no further obligation to one another resulting from the
provisions of this Section XVI.
16.06. The terms and provisions of this Section XVI constitute agreed-upon instructions
to the Escrow Agent for disbursement of the escrowed funds and shall survive closing.
XVII, ENTIRE AGREEMENT
Agenda Item No. 10A
December 16, 2008
Page 19 of 35
17.01. This Agreement and the Exhibits attached hereto contain the entire agreement
between the parties, and no promise, representation, warranty or covenant not included
in this Agreement or any such referenced agreements has been or is being relied upon
by either party. No modification or amendment of this Agreement shall be of any force or
effect unless made in writing and executed and dated by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto set forth hands and seals as of the date first
above written.
Date Project'Acquisition Approved by
BCC:
AS TO PURCHASER:
DATED:
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
ATTEST:
DWIGHT E BROCK, Clerk
. Deputy Clerk
BY:
Tom Henning, Chairman
AS TO SELLER:
DATED:
THE ISLANDS MARINA, LLC,
a Florida limited liability company
WITNESSES:
(Signature)
BY:
James Shucart, Manager
(Printed Name)
(Signature)
(Printed Name)
WITNESSES:
(Signature)
BY:
Christopher Shucart, Manager
(Printed Name)
(Signature)
(Printed Name)
Agenda Item No. 10A
December 16, 2008
Page 20 of 35
AS TO SELLER:
DATED:
PORT OF THE ISLANDS PROPERTIES, LLC,
a Florida limited liability company
WITNESSES:
(Signature)
BY:
James Shucart, Manager
(Pnnt Name)
(Signature)
(Printed Name)
WITNESSES:
(Signature)
BY:
Christopher Shucart, Manager
(Printed Name)
(Signature)
(Printed Name)
Approved as to form and
legal sLlfficiency:
Jennifer A Belpedio
Assistant County Attorney
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EXHIBIT 0
Page 1 of3
Schedule oj l.eil9BS, Storage Agreemem ,nd Contracts 10 be Assumed
Leaea:
Suite No. 3 (Co-Tenant)
Tenant' Performance Mobile Marine of Naples, Jne.
Pr1nclpat Richllfdl.aw
Add,",: 775 17110 Stree' 5W, Naples, FlorIde 34117
lJ8e: QfIJeeepaceforbOliltllln1all
Rent: (uplBnd .fulrej: $ASO.OOImonth - $46B.00 8. of December 1, 200B
Utilities: $45.00lmonth electrical service
security Deposit: (upland nre) $MlO.oo
Prepllld Rent: (upland share) $450.00 lalt month runt
Termllllltlon; Nov1:Imbcr 30, 2PC9
Renewat: Option for two ye....: 10 November 30, 2011
Remarks: Monthly rates Increllse by 4% on De;;ember 111 of each ~ear
Sulle No_ 3 (CO-TerMIni)
Tllnant: The Boat Club, Inc.
Principal: 'M~j8m R, MInder
Adt!rBBI: 7601410 A,yonlJCl tiW, Naplos, Florida J4120
Use: Office tor opellilliol1 of priyate membef1lhlp boal c1t,b
Rent: (upland share): $450.QOImonth _ $468.00 n of OecemblU 1, 2008
UtIlI!ie8: $'IS.CO/month electlicallleFYlce
Security Depot;lt (upland ahare) $450.00
Prepaid Rent. (upland ehare) $1150.00 lut month rent
Tenninlltlon: November 3D, 200i
Renewal: Oplion for two YlII1I'5, to November 30, 20' 1
Remarks: Monlhl~ rlre" tncllla3e by.04% on December 1- of ellen year
Ste>rage Agreemenl8 ana Contract&:,
Name:
Addreae.:
Telephone:
PrepaJd Annual Renl:
Tarm:
Aarun C. Winan,
2011 Gulf Sfl0f8 Boulav.rd N, Naples, FJorlaa 34102
859-533-6946, coil: 1359-533-271)9
$1,600.00
February 5, 2aOS - FlElbruar)' 5, 2009
FrllnkKeller
7640 OIQfiold Road, Crestline, Ohio 449i!7
419-683...960. cell: 419-285-2361
St.376.00
Marcl'1 31, 2008 - Man;h 30, 2009
Name:
Ad_.
Tslepnooe:
Prepakl Anl1ual Rent:
Tenn;
N<lme:
Aadree8:
Telephone:
Prtpald Arlrlual Renl:
Term:
Gord~ Torgersen
302 Newport Drive, No. 1512, Naples, Florida 34114
239-38G-OS73, ocIl: 612-591-7758
$1.500,00
Janulry 1, 2008 - January 1, 2009
Jeff Bier)'
P.O. Box 279. Damascus, Ohio
330-537-2021,call; 330-429+14111
$1,:m,j.Oo
Apri'2,200B-AprlJ1,200lil
Name;
Address:
Telephone:
P~p.lcl Annual Rent:
Te-Im:
Name:
Addreaa:
Telephone:
~paid Alm~1I1 Ref11:
T6lTn:
Joe Bivonll
194 NltWpon Drlve, Naples, Florida 34114
239.394-7200, CiJn: 860.778-3474
$1,300.00
May 2, 200e - May 1. 200s
Agenda Item NO.1 OA
uecember 16, 2008
Page 26 of 35
Name:
Addftl:8I:
Teleptllm.:
Prepaid AnnUlI Rent
Term:
Name:
Adelreu:
Telephone:
Prepaid Annual Rent
rllm:
Nama:
Address:
Telephone:
Prepalel Annual R8I1t
T"",
Name:
Addnraa:
Telephone:
Prepaid An'lual ReI'1I:
T.""
Name':
"'dare.a:
TelephGl'\e:
Pl'e'paic.l Annual R.anl:
Term;
Name:
Mares.:
Teh!iphon.:
Prepaid Annual Rent:
Term:
Nilrno:
Addrns:
T_phonl:
Prepaid Annual Rent
Term:
N5Ime:
Addrees:
Telep~nlll:
Prepaid Annual Rent:
Te""
Nam~
Address:
Telephone.:
PrepiNd Annual Rent:
Term:
Name:
Adarcsa:
Telephone:
Prepaid Annual Rent
Term:
Agenda Item No. 10A
December 16, 2008
Page 27 of 35
EXHIBIT 0
Pagp2of3
John Javor
25054 PeacoOk lllllB, No, 202, Naple., Fiorll1a34114
239.331-7478
$1500.00
NoVember 1, 200B-N~emb8t 1, zoos
JohnJ.Robi5tln
10425 SW 52""' TelTace, MlelTli, Florida 33165
306-219-3589. cell: 765-236--716!J
$1,500.00
September 10, 200B- SeptemberS, 2009
MartinM9Alpirw
Sunrise Cay, Bldll. 237, flip. 102, NapltllI, florida
2:l9-3M-60e8, c;elt 76J.632-5367/612.72Q-7919
$1,200.00
Mllrch 6, :W06 - March 4, 2009
Eel Gubani,h
4'00 0llg08 Street, Denver, Colorado 80216
303-3n--5166
$1,375.00
July 1, 2008 - JJ.I'le 30, 2009
Martin P. Hussey
4915 Ratlleaneke HamMock Road, No. 102, NlIPMls, Flotlda ~113
$1,500.00
March 24, 2008 - March 23, 2009
R.obertStreck
10 Homntellctlane, East Ham,o<<ln, New York 11937
239--417--C6e6, call: 631-324-0742
$1,375.00
May 2. 2008 - May 1, 2009
Steven Wllker$')O
954-928.0408, cell: 954-650-4072
$1,500.00
Februllry 19, 2008 ~February 19, 2009
Ted Townlend
117 NtwpOrt Drive, NlIpleS, FlorkIa 34114-
$1.475.00
May 16, 2008- May 1:i, 200&
Victor G. Sanlamariml
2330 Quoen. Way, NaplclJ, Florida 34112
239-530-1705, cell: 239-272~i458
$1,375.00
April 12, 2008 -AprtI11, 200g
William B. Analey
27B Newport O:1ve, No 201, Naples, Florida 34114
120 Ca",on Valle)', Duncamlllllla, Pennsylvania 16635
814-e95-Q817, c~ll: 81HI32.&8H
$1.375.00
April 1, 200B-Apr1l1, 2009
N.m.:
Address:
Tolophof1e:
Prepakf Annual Rent
Term:
Name:
Address:
Telephone;
PUlplleI Annuli Renl:
Term:
Agenda Item No. 10A
-December 16, 2008
Page 28 of 35
EXHIBJTD
Pilge3of3
William D. Nelson
P.O. BOll 217, Slone Like, W[~mijn 54B76
715-579--1100
$1,200.00
May 23. 2006 - May 23, 2009
MlksTrepanier
14690 5W 156" Avenue, Miami, Floridl 33198
30s..B03-03!5!il
51,500.00
Juoo2lS, 2008- June 27, 200g
"'e/f
EXHIBIT t, ~
page--t.of
LEASEAGREEMENT
Agenda Item No. 10A
Lease # December 16, 2008
Page 29 of 35
THIS LEASE AGREEMENT entered into this. day of , 2008, betwet:n The
Islands Marina, LLC and Port of the Island Properties, Lie. whose mailing address is 2614 Tamiami
Trail North, Suite 615, Naples, Florida 34103. hereinafter referred to as "LESSEE," and COLLIER
COUNTY, a political subdivision of the State of Florida, ,,'hose mailing address is 3301 East Tamiami
Trail, Naples, Florida 34112, hereinafter referred to as "LESSOR,"
WITNESSETH
In consideration of the mutual covenants contained herein, and other valuable consideration, the
parties agree l:I.S follows:
ARTICLE I.
Demised IJremiscs
LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR Suites #1 and #2
located at 525 Ne\..'port Drive, Naples, Florida 34114, which is further described in Exhibit "A," and
which is attached hereto and made a part of this Lease, hereinafter called the "Demised Premises,"
situated in the County of Collier and the State of Florida, for the sole purpose of operating a marina sales
and property management office.
ARTICLE 2.
Term of Lease
LESSEE shall have and hold the Demised Premises for a tem of nine (9) years, commencing on
the day in which this Lease Agreement is accepted by the LESSOR and ending nine years from that date.
LESSOR reserves the right to terminate this Lease, with or without cause, by providing LESSEE
with sixty (60) days written notice to the address set forth in Article 14 of this Lease. Said notice shall
be effective upon placement of the notice in an official depository of the United States Post Office,
Registered or Certified Mail, Postage Prepaid.
ARTICLE 3. Rent
LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the sum of One
Dollar and 00/100 Cents ($1.00) per annum. The rent for the entire lease tenn shall be paid in full thirty
(30) days following the execution of this Lease by LESSOR.
ARTICLE 4.
Other Exoenses and Charees
LESSEE shall pay all co!>ts associated with telephone and any communications service as well as
janitorial services rendered at the Demised Premises. LESSOR shall have no obligation to provide any
of the aforementioned services to the Demised Premises,
LESSEE shall pay a monthly fee of Ninety Dollars ($90.00) to LESSOR at the address set forth in
this Lease. for electrical service.
ARTICLE 5.
Modifications to Demisegpremises
Prior to making any changes, alterations, additions or improvements to the Demised Premises,
LESSEE will provide to LESSOR all proposals and plans for alterations, improvements, changes or
additions to the Demised Premises for LESSOR'S written approval, specifying in writing the nature and
extent of the desired alteration, improvement, change, or addition, along \...ith the contemplated starting
and completion time for such project. LESSOR or its designee will then have sixty (60) days within
which to approve or deny in writing said request for changes, improvem~nts, alll.:rations or additions.
LESSOR shall not unreasonably .vithhold its consent to r~gllired or appropriate alterations,
improvements, changes or additions pwposcd b)' LESSEE. If after sixt)' (60) days there has been no
response from LESSOR or its designee to said proposals or plans, then such silence shall be deemed as a
denial to such request to LESSEE.
LESSEE covenants and agrees in connection with any maintenance, repair work, erection.
construction, improvement, addition or alteration of any authori:l.ed modifications, additions or
improvements to the Demised Premises, to observe and comply with all then and future applicable laws,
ordinances. rules, regulations, and requirements of the United States of America, State of Florida, County
or Callier, and any and all governmental agencies.
EXHIBIT 'e"
e ?-- of ~ Agenda Item No. 10A
All alterations, improvements and ad&'iftgn~d Demised Premises shall at once, when maIDmrember 16, 2008
installed, be deemed as attached to the freehold and to have become property of LESSOR. Prior to the Page 30 of 35
termination of this I.ease or any renewal lenn thereof, or within thirty (30) days thereafter, if LESSOR so
directs, LESSEE shalt promptly remove the additions, improvements, alterations, fixtures and
installations which were placed in, on, or upon the Demised Premises by LESSEE, and repair any
damage occasioned to the Demised Premises by such removal; and in default thereof, LESSOR may
complete said removals and repairs at LESSEE'S expense.
LESSEE covenants and agrees not to use, occupy, sutTer or permil said Demised Premises or any
part thereof to be used or oc<:upied for any purpose contrary to law or the rules or regulatium of any
publi<: authority.
ARTICLE 6.
Access to Demised Premises
LESSOR, its duly authorized agents, representatives and employees, shall have the right after
reasonable notice to LESSEE, to enter into and upon the Demised Premises or any part thereof at all
reasonable hours for the purpose of examining the same and making repairs or providing services therein,
and for the purposes of inspection for compliance with the provisions of this Lease Agreement.
ARTICLE 7.
Assilffiment and SubleninlZ
LESSEE covenants and agrees not to assign this Lease or to sublet the whole or any part of the
Demised Premises, or to permit any other persons to occupy same without the written consent of
LESSOR. Any such assignment or subletting, even with the consent of LESSOR, shall not relieve
LESSEE from liahility for payment of rent or other sums herein provided or from the obligation to keep
and be bound by the terms, conditions and covenants of this Lease. The acceptance of rent from any other
person shall not be deemed to be a waiver of any of the provisions of this Lease or to be consent to the
assignment of this LCl:lse or subletting of(h~ Demised Premises.
ARTICLE 8,
Indemnitv
LESSEE, in consideration of Ten Dollars ($! 0.00), the receipt and sufficiency of which is hereby
acknowledged, shall indemnify, defend and hold harmless LESSOR, its agents and employees from and
against any and all liability (statutory or otherwise), damages, daims, suits, demands, judb'ments, costs,
interest and expenses (including, but not limited to, attorneys' fees and disburst:ments bolh at trail and
appellate levels) arising, directly or indirectly, from any injury to, or death of, any person or persons or
damage to property (induding loss of use thereof) related to (A) LESSEE'S use of the Demised Premises,
(B) any work or thing whatsoever done, or any conditions created (other than by LESSOR, its employees,
agents or contractors) by or on behalf of LESSEE in or about the l.}emised Premises, (C) any conditions
of the Dcmised Premises due to or resulting from any default by LESSEE in the performance of
LESSEE'S obligations under this Lease, or (D) any act, omission or negligence of LESSEE or its agents,
contractors, employees, subtenants, licensee or invitees, In case any action or proceeding is brought
against LESSOR by reasons of anyone or more thereof, LESSEE shall pay all costs, attomeys' fees,
expenses and liabilities resulting therefrom and shall defend such action or proceeding if LESSOR shall
so request, at LESSEE'S expense, by counsel reasonably satisfactory to LESSOR.
The LESSOR shall not be liable for any injury or damage to person or property caused by the
elements or by other persons in the Demised Premises, or from the street or sub.surface, or from any
other place. or for any interference caused by operations by or for a governmental authority in
construction of any public or quasi-public works.
The LESSOR shall not be liable for any damages to or loss of, including loss due to petty theft,
any property, OCCUlTing on the Demised Premises or any part thereof, and the LESSEE agrees to hold the
LESSOR harmless from any claims for damages, except where such damage or injury is the result of the
gross negligence or willful misconduct of the LESSOR or its employees.
ARTICLE 9. Insurance
LESSEE shall provide and maintain general liability and property liability insurance policy(ies)
pursuant to the provision of the Florida Insurance Risk Management Trust Fund and pursuant to the
provisions of Section 768.28, Florida Statutes, during the (enn of this Agreement. Tn addition, LESSEE
shall provide and maintain Worker's Compensation Insurance covering all employees meeting Statutory
Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's
Liability with a minimum limit of One Hundred Thousand Dollars and Noll 00 Cents ($100,000.00) each
accident.
2
EX~T~
of /',.., - Agenda Item NO.1 OA
Evidence of such insuJil~ e provided to the CoWer Count}' Risk Managem~nt Depart~mber 16, 2008
3301 East Tamiarni Trail, Administration Building. Naples, Florida, 34112, for approo.,'al prior to the Page 31 of 35
commencement of this Lease Agreement; and shall include a provision requiring thirty (30) days prior
written notice to Collier County c/o County Risk Management Department in the event of cancellation or
changes in policy(ies) coverage.
The LESSEE acknowledges and agrees that no changes or cancellations to the insurance coverage
will occur without thirty (30) days prior written notice to LESSOR. LESSEE shall ensure that LESSEE'S
insurance provider will be responsible for notifying the LESSOR directly of any changes related to
insurance coverage. LESSEE shall also ensure that the insurance coverage provided in accordance with
this agreement shall require that the company or companies writing such insurance policy(ies) shall
provide to LESSOR written notice of cancellation thirty (30) days prior to the proposed cancellation.
LESSOR reserves the right to reasonably amend the insurance requirements by issuance of notice in
writing to LESSEE, whereupon receipt of such notice Lessee shall bave thirty (30) days in which to
obtain such additional insurance.
ARTICLE 10. Mainlenancc
LESSEE shall keep the Demised Premises clean at all times at its sole cost and expense.
ARTICLE I J. Default by LESSEE
Failure of LESSEE to comply with any provision or covenant of this Lease shall constitute a
default and LESSOR may, at its option, terminate this Lease after providing ~Titten notice to LESSEE,
as specified in Article 2 of this Lease, unless the default be cured within the notice period (or such
additional time as is reasonably required to correct such default).
ARTtCLE 12. D,fault bv LESSOR
LESSOR shall in no event be charged with default in the perfonnance of any of its obligations
hereunder unless and until LESSOR shall have failed to perfonn such obligations within thirty (30) days
(or such additional time as is reasonably required to correct such default) after notice to LESSOR by
LESSEE properly specifying wherein LESSOR has failed to perform any such obligations.
ARTICLE 13. Notices
Any notice which LESSOR or LESSEE may be required to give to the other party shall be in
writing to the other part)' at the following addresses:
LESSOR:
LESSEE:
Board of County Commissioners
c/o Real Property Management
Building 'W'
330 I East Tamiami Trail
Naples, Florida 34112
.James and Christopher Shucart
The Islands Marina, LLC and Port of the Island
Properties. LLC
2614 Tamiarni Trail North
Suite 615
Naples. Florida 34]03
cc: Office of the County Attorney
ARTICLE 14, Surrender of Premises
LESSEE shal1 deliver up and surrender to LESSOR possession of the Demised Premises at the
termination of this Lease, or its earlier termination as herein provided. broom clean and in as good
condition and repair as 1he same shall be at the commencement of the term of this Lease or may have
been put by LESSOR or LESSEE during the continuance thereof, ordinary wear and rear and damage by
tire or the dements beyond LESSEE'S control excepted.
ARTICLE 15, General Provillilns
LESSEE expressly agrees for itself, its successor and assigns. to refrain from any use of the
Demised Premises which would interfere with or adversely affect the operation or maintenance of
LESSOR'S standard operations where other operations share common facilities.
(a) Rights not specifically granted the LESSEE by this Lease are hereby reserved to the LESSOR,
(b) LESSEE agrees to pU)'llll sales tax imposed on the rental of the Demised Premises where
applicable under law.
3
(e)
EXHIBIT"~
page~of~ Agenda Item No. 10A
LESSEE agrees to pay all inlangible personafproperty taxes that may be imposed due to the December 16, 2008
creation, by this Lease, ofa leasehold interest in the Demised Premises or LESSEE'S possession Page 32 of 35
of said leasehold interest in the Demised Premises.
ARTICLE 16. Environmental Concems
LESSEE represents, \varrants and agrees to indumnify, reimburse, defend and hold harmless
LESSOR, from and against all costs (including attorneys fCC8) asserted against, imposed on or incurred
by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state,
local or common law relating to pollution or protection of the environment.
ARTICLE 17. Radon Gas
In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the
following:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your County Public Health
Department.
ARTICLE 18. ~!ffitofLiens
All persons to whom these presents may come are put upon notice of the fact that the interest of
the LESSOR in the D~mised Premis.es shall not be subject to liens for improvements made by the
LESSEE, and lir.:ns for improvements made by the LESSEE arc specifically prohibited from attaching to
or becoming a lien on the interest of the LESSOR in the Demised Premises or any part of either. This
notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes.
ARTICLE 19. Effective Date
This Lease shall become effective upon execution by both LESSOR and LESSEE.
ARTICLE 20. yQverninl! Law
This Lease shall be governed and construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, tbe parties hereto have hereunder set forth their hands and seals.
AS TO THE LESSOR:
DATED:
ATTEST:
DWIGHT E. BROCK. Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
TOM HENNING, Chairman
, Deputy Clerk
AS TO LESSEE:
The Islands \tfarina, LLC and
Port of the Island Properties, LLC
DATED:
WITNESS (signature)
BY:
(print name)
W1TNESS (signature)
(print name)
4
WITNESS (signature)
EXHIBIT'~
page~OI~
BY:
CHRISTOPHER SIIUCART
Agenda Item No. 10A
December 16, 2008
Page 33 of 35
(print name)
WITNESS (signature)
(print name)
Approved as to fonn and legal sufficiency:
Jennifer A. Belpedio, Assistant Count)' Attorney
5
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EXHIBIT
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Agenda Item NO.1 OA
Uecember 16, 2008
Page 34 of 35
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Agenda Item No. 10A
December 16, 2008
Page 35 of 35
4.09 ACRE SHIP'S STORE, BOAT RAMP AND MARINA
UPLAND FEE PARCEL
;':3..!L::":;"-: .,- . ",. .-~ ----~, .... ,~ iML~ .Ili-
:;:\0':\
OFFICE OF THE COUNTY ATTORNEY
MEMORANDUM
DATE:
Decembcr 12, 2008
FROM:
Commissioner Tom Henning, Chairman, District 3
Commissioner Donna Fiala, Vice-Chair, District 1
Commissioner James N. Coletta, District 5
Commissioner Fred Coyle, District 4
Commissioner Frank Halas, District 2
Jennifer A. Belpedio, Assistant County Attorney '7!J~
December 16, 2008 Board Meeting-Item 10. A.
Port of the Islands Marina Acquisition
TO:
SUBJECT:
We are pleased to advise you that negotiations for the Port of the Islands Marina acquisition have
been completed.
As such, attached please find a copy of the resulting draft Agrccment for Sale and Purchase
("Agreement") which has been executed by the owners and signed by our office for form and
legal sufficiency. Please r"'Place the version in your agenda package for December 16. 2008
with this version.
The public will also be notified of this change by way of the "Add Change List" and given an
opportunity to view or obtain a copy of the Agreement at the Board's Minutes and Records
Department.
Should you have any questions, please do not hesitate to contact the County Attorney or me.
Enclosure: Agreement for Sale and Purchase
cc: Jeffrey A. Klatzkow, County Attorney
Scott R. Teach, Deputy County Attorney
James V. Mudd, County Manager
Marla Ramsey, Public Service Administrator
Toni Mott, Real Property Management Manager
Michael Sheffield, Assistant to the County Manager
Patricia Morgan, Board Minutes and Records Manager
08.RPR-01580/3
.:ll\oA
PROJECT: PORT OF THE ISLA.ND$ MARINA
FOLlO NOs.: 01067080606 & 01067083807
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made and entered into this day of December, 2008 by and
between THE ISLANDS MARINA, LLC, a Florida limited liability company, and PORT OF
THE ISLANDS PROPERTIES, LLC, a Florida Ilmltad liability company (hereinafter
collectively referred to as "Seller"), and COLLIER COUNTY, A POLITICAL SUBDIVISION OF
THE STATE OF FLORIDA (hereinafter referred to as "Purchaser').
WITNESSETH
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to sell and
transfer to Purchaser. certain uplands portions of that property known as the Port of the Islands
Marina, to include approximately 2.4 acres of commercially zoned waterfront land currently used
for boat trailer and car parking, an oversized single boat launch ramp, approximately 15,466
square feet of submerged land (boat launch expansion area), non-exclusive use of a 94 space
parking facility, approximately 1.46 acres of commercially zoned upland property, a fueling
facility, and a 7400 square foot marina building, together with the ship's store, bathrooms,
offices, and Manatee and 10,000 Islands educational center housed therein, with sufficient
excess square footage within said marina building in which to build a permanent Ochopee fire
station, on approximately 1 A acres of commercially zoned waterfront property; and
WHEREAS, in connection with said purchase and sale, Purchaser requires perpetual,
non-exclusive Public Access Easements over, under, upon and across portions of Seller's
property, and the property of others, for access and ingress between the public right of way of
U.S. Route 41 and all portions of the property to be purchased and sold over and upon the
entire width of Newport Drive and along the westerly side of other property of Seller, as depicted
on attached Exhibit B..1, together with such easements as may be necessary for use of the non-
exclusive parking facility, and together also with easements necessary and sufficient to allow for
riparian access and temporary boat tie-off during launching, loading, unloading and fueling
operations along the waterfront portions of the property to be purchased; and
WHEREAS, Purchaser further requires such other tangible and intangible assets as may
be necessary to the operation of the ship's store, office leasing, Manatee and 10,000 Islands
educational center, boat and trailer storage, boat launch, fueling facility, parking facilities and
waterfront operations existing upon the property to be purchased or used in connection
therewith; and
WHEREAS, the land and buildings, easements and other tangible and intangible assets
referenced hereinabove are collectively referred to herein as the "Property"; and
WHEREAS, Seller desires to convey and otherwise transfer the Property to Purchaser on
the terms and conditions set forth herein, and Purchaser has agreed to compensate Seller for
such conveyance and transfer of the Property in the manner hereinafter described:
NOW THEREFORE, in consideration of these premises, the sum ofTen Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, it is agreed by and between the parties as follows:
I. PROPERTY SUBJECT TO PURCHASE AND SALE
1.01. The property to be purchased and sold shall consist of the following elements:
1.011. That certain parcel containing approximateiy 4.09 acres and being more
particularly described on Exhibit A.1 attached hereto and incorporated herein by
reference. Said parcel contains commercially zoned waterfront lands, boat trailer and car
parking, boat launch ramp, approximately 15,466 square feet of submerged land (boat
launch expansion area), fueling station and 7400 square foot marina building as
hereinabove referenced and shall be conveyed together with all improvements, fixtures,
:tl: loA
appurtenances and appurtenant easements, including but not limited to the rights
attributable to the 4.09 acre parcel under that certain Reciprocal Parking Easement
Agreement dated June 20, 2006 and recorded June 23, 2006 at O.R. Book 4060, Page
3208. Public Records of Collier County, Florida (provided that Seller retains such rights
under such Easement Agreement that are not attributable to the Property), that certain
Easement and License Agreement dated December 14, 2007 and recorded January 8,
2008 at O.R. Book 4318, Page 3206, Public Records of Collier County. Florida. and that
certain Facilities Maintenance Agreement between Port of the Islands Marina
Condominium Association, Inc. and The Islands Marina, LLC dated July 31, 2008 and to
be recorded in the Public Records of Collier County, Florida prior to Closing,
1.012. That certain parcel containing approximately 1.46 acres of commercially zoned
upland property and being more particularly described on Exhibit A-2 attached hereto and
incorporated herein by reference, which shall be conveyed together with all appurtenant
easements, including but not limited to the rights attributable to the 1.46 acre parcel
under that certain Reciprocal Parking Easement Agreement dated June 20, 2006 and
recorded June 23, 2006 at O.R. Book 4060, Page 3206, Public Records of Collier
County, Florida.
1.013. A perpetual, non-exclusive easement for all purposes of vehicular and pedestrian
access and ingress, including use by the general public, between the public right of way
of U.S. Route 41 and the parcel described on Exhibit A~2, the area of said easement
being more particularly described on Exhibit B-1 attached hereto and incorporated herein
by reference.
1.014. A perpetual, non-exclusive easement for all purposes, including use by the
general public, of riparian access and temporary boat tie~off during launching, loading,
unloading and fueling operations along the waterfront portions of the parcel described on
Exhibit A-1, the area of said easement being more particularly described on Exhibit B~2
attached hereto and incorporated herein by reference.
1.015. Those tangible and Intangible assets necessary to the operation of the ship's
store, office leasing, Manatee and 10,000 Islands educational center, boat and trailer
storage, boat launch, fueling facility, parking facilities and wateriront operations
(hereinafter collectively referred to as the UOperationsn) existing upon the parcel
described on Exhibit A.1 or used in connection therewith, including but not limited to the
following (except to the extent certain items of personalty are expressly excluded below):
(a) All furniture, fixtures, trade fixtures and equipment located on the Property,
including within the ship's store, and utilized in conjunction with the Operations
(which does not include inventory, Christopher Shucart's personal office furniture,
tools and equipment utilized in maintaining the marina property, and the marina
go~ cart). Purchaser and Seller agree that furniture, fixtures, trade fixtures and
equipment have a fair market value of One Hundred Five Thousand and 00/100
Dollars ($105,000.00) and will be conveyed to Purchaser as a charitable
donation. The furniture, fixtures, trade fixtures and equipment will be conveyed
to Purchaser in their "as is" condition and without warranty of fitness or condition.
Seller shall transfer all warranties and service agreements associated with the
furniture, fixtures, trade fixtures and equipment, if any
(b) INTENTIONALLY DELETED.
(c) Leases, storage agreements, and other contracts to be assumed. as more
particularly described on Exhibit C attached hereto and incorporated herein by
reference.
(d) All software, technical and other supplies necessary to the Operations.
(e) To the extent assignable, all licenses, permits, registrations and consents
necessary to the conduct of the Operations.
(f) All customer lists, customer contacts, customer relationships and goodwill
associated with and related to the Operations.
(g) All other assets, tangible and intangible, used in connection with the
Operations; but excluding cash, accounts receivable, and such property which is
not specifically related to the Operations and which has been, and continues to
be, used by Seller in connection with Seller's other businesses.
# lOA
Notwithstanding the foregoing, Seller shall retain the exclusive right to use the Port of
the Islands Marina website and logo, and the non-exclusive right to use the term "Port of
the Islands Marina. W
1.016. In addition to the foregoing. Purchaser shall have the option. but not the
obligation, to purchase, at Seller's cost, any or all of the inventory and other goods held
for fe-sale located within the ship's store and marina building (other than those items
described in Paragraph 1.015(a), above, as expressly excluded from the sale). Items to
be purchased hereunder shall be determined based upon a physical inventory to be
conducted by representatives of the Seller and the Purchaser prior to Closing. Any
inventory or other goods held for re~sale not so purchased shall be removed from the
Property by Seller prior to Ciosing.
1.017. At the time of Closing, Purchaser shall grant to Seller a temporary easement for
pedestrian and vehicular access over and upon the roadway existing along the westerly
and southerly boundaries of the 1.46 acre parcel. The temporary easement is described
and depicted on attached Exhibit A-3, which is incorporated herein by reference. This
temporary easement will be terminable at such time as it is determined to cause
interference with Purchaser's development plans for, or use of, the Property.
1.01 a. Purchaser acknowledges that Seller has historically leased or licensed twenty-
one (21) of the wet-slips within the Port of the Islands Marina basin for the operation of
commercial vessels. Prior to Closing, Seller shall assign to itself the right to continue
this historical use by recording an assignment of such rights in the Collier County Public
Records in accordance with Paragraph 17.1 of the Fourth Amendment to Declaration of
Condominium of Port of the Islands Marina, a Condominium, recorded in Official
Records Book 4405, Page 3615, of the Collier County, Florida. Public Records. The
rights associated with such assignment are excluded from the Property.
1.019. Purchaser agrees and acknowledges that Seller will continue its efforts to sell
and lease wet-slips within the Port of the Isiands Marina, and that the construction of
boat storage facilities on that portion of the Property described in attached Exhibit A-1
by Purchaser or its successor(s) In title will compete directly with Seller's efforts in this
regard. For the foregoing reasons, Purchaser agrees that it will not construct any boat
storage facilities on said parcel until the earlier of: 1. Such time as 96% or more of the
175 Port of the Islands Marina wet-slips have either been leased by Seller, or have been
conveyed to individual third-party buyers; or 2. Nine (9) years following Closing.
In exchange for the foregoing restriction, Seller agrees that it will not construct or
operate any dry storage facility, convenience store, or fuel supply facility on Seller.
owned lands located within the Port of the Islands community for a period terminating on
the earlier of: 1. Nine (9) years following Closing; or 2. until Seller conveys such lands
(or portion thereon to a bona-fide purchaser for value in an arm's iength transaction (in
which case the land conveyed to the bona-fide purchaser shall be released from the
foregoing restriction).
The terms of this Paragraph 1.019 shall survive Closing.
1.020. Purchaser agrees and acknowledges that the parcel described in attached
Exhibit A-1 contains certain utility lines. fire hydrants, control boxes, and related
equipment that are intended to serve the Port of the Islands Marina wet-slips, gangways,
and reiated structures. To the extent necessary, Seller shall be permitted to reserve
corresponding easements over the Exhibit A-1 parcel at or prior to Closing, provided that
such reserved easements do not prevent Purchaser's intended use of the Exhibit A-1
parcel.
1.021. Any obligations arising out of Paragraph 5.d. of that certain Reciprocal Parking
Easement Agreement referenced in Paragraphs 1.011 and 1.012 hereof shall be shared
equally by Seller and Purchaser andlor their successors and assigns.
The terms of this Paragraph 1.021 shall survive Closing.
II. ASSUMED LIABILITIES
2.01. Except for the leases, storage agreements, or contracts listed in Exhibit C
attached hereto and except as othelWise provided in this Agreement, Purchaser shall
not assume any debt, accounts payable, liability, obligation, agreement, contract or
lease, nor any liability under local, State or Federal laws, of Seller. Seller shall retain
liability for, and shall indemnify Purchaser against, any such liabilities of Seller.
2.02. To the extent that any of the obligations listed on Exhibit C , or any other
obligations of Seller not related to the Operations, contain a provision calling for the
granting of a discount or discounts on the purchase of merchandise at the ship's store or
fueling station, Purchaser cannot and will not honor said arrangements, and Seller shall
be responsible for assuming any liability in this regard.
2.03. It is the intent of the parties that, except for the specific liabilities and obligations
described in Exhibit C, exclusive of any discount arrangements as stated, Purchaser
shall not be liable for any other liabflities or obligations of Seller related in any way to the
Operations or the Property whatsoever, whether fixed or contingent, known or unknown,
liquidated or unliquidated, arising now or in the future, and Seller shall jointly and
severally indemnify Purchaser against any and all such liabilities. Seller shall pay all
liabilities and obligations not expressly assumed by Purchaser as of the Closing.
Purchaser does not assume, and no transferee liability shall attach to Purchaser, with
respect to any liabilities or obligations of Seller or related in any way to the Operations or
the Property or actions of Seller, which are not specifically assumed by Purchaser
pursuant to this Agreement, including, without limitation, liabilities arising in connection
with the Operations and the activities of Seller prior to the Closing. The elimination of
any risk of such transferee liability attaching to Purchaser is a primary inducement to
Purchaser's entering into this transaction, in that Purchaser would not have entered into
this transaction under circumstances where any such transferee liability would or might
attach to Purchaser. The entire negotiations of the parties with respect to this
transaction, including the purchase price, were based upon the assumption and
agreement that Purchaser would not succeed to any liability or obligation of Seller, or
related in any way to the Operations or the Property, except for those liabilities and
obligations expressly assumed in Exhibit C.
2.04. In the event that any obligation listed on Exhibit C requires rents received to be
prorated between Purchaser and Seller, unless acceptable alternative procedures are
made, Purchaser shall receive such rents in total and remit Seller's share thereof to
Seller as received.
IIi. PURCHASE PRICE AND PAYMENT
3.01. The purchase price (the "Purchase Price") for the Property shall be Five Million,
Four Hundred Eighty-Eight Thousand and no/100 Dollars ($5,488,000.00) (U.S.
Currency) payable as follows:
(al Four Million, Seven Hundred Fifty Thousand and no/100 Dollars
($4,750,OOO.00) payable at Closing by wire transfer or County warrant from Purchaser to
Seller.
(b) Seven Hundred Thirty-Eight Thousand and no/100 Dollars ($738,000.00)
payable at Closing as a charitable donation from Seller to Purchaser.
3.02. INTENTIONALLY DELETED.
3.03. At Closing, Purchaser shall deposit a portion of the Purchase Price, in the amount
of Two Hundred Thousand and no/100 dollars ($200,000). in a segregated or dedicated
interest bearing escrow account to be maintained and held by Stewart Title Guaranty
Company, formerly known as Midwest Title Company, to be disbursed pursuant to
Paragraphs 16.02 or 16.04 hereof.
IV. CLOSING
4.01. The Closing of the transaction shall be held on or before December 31, 2008
unless extended by mutual written agreement of the parties hereto. The Closing shall be
held at the Collier County Attorney's Office, Administration Building, 3301 Tamiami Trail
East, Naples, Fiorida. The procedure to be followed by the parties in connection with the
Closing shall be as follows:
4.011. Seller shall convey a marketable title to all elements of the Property free
of any liens, encumbrances, exceptions, restrictions, or qualifications. Marketable title
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shall be determined according to applicable title standards adopted by the Fiorida Bar
and in accordance with Florida law. At the Closing, the Seller shall cause to be
delivered to the Purchaser the items specified herein and the following documents and
instruments duly executed and acknowledged, in recordable form:
4.0111. Warranty Deed in favor of Purchaser conveying title to the Property
Described in Exhibit A-1 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.011 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
(0) The Seller Lease, and the rights of the tenants and licensees listed on
attached Exhibit C .
(d) The parking easement described in Paragraph 9.04, below.
4.0112. Warranty Deed in favor of Purchaser conveying title to the Property
Described in Exhibit A-2 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.012 hereof, free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
4.0113. Easement in favor of Purchaser conveying rights to the Property
described in Exhibit B-1 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.013 hereof. free
and clear of all liens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
4.0114. Easement in favor of Purchaser conveying rights to the Property
Described in Exhibit B.2 together with rights to all easements, agreements, and
other rights appurtenant thereto, as specified in Paragraph 1.014 hereof, free
and clear of sllliens and encumbrances other than:
(a) The lien for current taxes and assessments.
(b) Such other easements, restrictions or conditions of record.
4.0115. Warranty Bill of Sale for furniture, fixtures, trade fixtures and
equipment described in Paragraph 1.015(a), above, together with inventory and
other goods held for re-sale determIned in accordance with Paragraph 1.016,
free arid clear of all liens and encumbrances.
4.0116. Assignment of leases, storage agreements and other contracts listed
on Exhibit C , together with all security deposits, pre-paid rents and storage
fees attributable thereto.
4.0117. Grantor's Non-Foreign. Taxpayer Identification & "GAP" Affidavits as
required by Section 1445 of the Internal Revenue Code and as required by the
title insurance underwriter in order to insure the "gap" and issue the policy
contemplated by the title insurance commitment.
4.0118. Public Disclosure Affidavits as required by Chapter 286, Florida
Statutes.
4.0119. W-9 Forms, "Request for Taxpayer Identification and Certification" as
required by the Internal Revenue Service.
4.01110. Closing Representetive Statement.
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4.01111. Combined Purchaser-Seller Closing Statement.
4.01112. Such evidence of authority and capacity of Seller and its
representatives to execute, acknowledge and deliver this Agreement, and all
other documents as may be required to consummate the transaction
contemplated hereby, as Purchasers counsel and/or Purchasers title company
may reasonably determine.
4.01113. All documents and documentation required pursuant to Section VIII
hereof.
4.01114 Such other documents and documentation as Purchaser's counsel
may reasonably detenn;ne to be necessary for the transfer of those elements
of the Property specified in Paragraph 1.015, subparagraphs (c) through (I)
hereof.
4.01115. The Seller's executed counterpart of the Seller Lease.
4,012. At the Closing, the Purchaser, or its assignee, shall cause to be delivered to the
Seller the following:
4.0121. A wire transfer or negotiable instrument (County warrant) in an amount equal
to the Purchase Price. No funds shall be disbursed to Seller until the Title Company
verifies that the state of the title to the Property has not changed adversely since the
date of the last endorsement to the commitments, and the Title Company is irrevocably
committed to issue the owner's title policies to Purchaser in accordance with the
commitments immediately after the recording of the deeds and easements.
40122. Funds payable to the Seller representing the cash payment due at Closing in
accordance with Section Iii hereof, shall be subject to adjustment for prorations,
adjustment for the credit set forth in Paragraph 7.05 hereof, adjustment for sums to be
paid under Paragraphs1.015(b) and 1.018 hereof, and other adjustments as set forth
herein.
4.0123. A Temporary Access Easement as referenced in Paragraph 1.017 hereof.
4.0124. The Purchaser's executed counterpart of the Seller Lease.
4.0125. Combined Purchaser-Seller Closing Statement.
4.0126. Such documentation as may be necessary to evidence (for purposes of filing
with the appropriate taxing bodies) the Seller charitable contribution under Paragraph
3.01(b) and Paragraph 1.015(a).
4.02. Each party shall be responsible for payment of its own attorney's fees. Seller. at its
sole cost and expense, shall pay at Closing all documentary stamp taxes due relating ta
the recording of the warranty deeds and easements, in accordance with Chapter 201.01,
Florida Statutes, and the cost of recording any instruments necessary to clear Seller's title
to the Property. The cost of the owner's Form B title policies, issued pursuant to the
commitments shall be paid by Purchaser. The cost of the title commitments, title search,
and closing fees charged by Title Company shall also be paid by Purchaser.
4.03. Purchaser shall pay for the cost of recording the warranty deeds and easements.
Real Property taxes shall be prorated based on the current year's tax with due allowance
made for maximum allowable discount, homestead and any other applicable exemptions
and paid by Seller. If Closing occurs at a date upon which the current year's millage is not
fixed, taxes will be prorated based upon such prior year's millage.
V. REQUIREMENTS AND CONDITIONS
5.01. Upon execution af this Agreement by both parties or at such other time as specified
within this Section, Purchaser and/or Seller, as the case may be, shall perform the
following within the times stated, which shall be conditions precedent to the Closing:
5.011. Purchaser has obtained, as of November 24, 2008, AL TA commitments for
owners title insurance policies (ALTA Form B-1970) covering real estate elements of
the Property, together with hard copies of all exceptions shown thereon. In addition
to Purchaser's rights in paragraph 5.013 hereof to notify Seller of title defects or
objections based on a survey, Purchaser shall have until December 24, 2008 to
notify Seller in writing if the title commitments contain exceptions for matters that are
not acceptable to Purchaser, that title is unmarketable, or the title commitments
require corrective action to be taken to make the title marketable, Seller shall have
the right to cure such matters as provided in Paragraph 5.012 hereof and shall be
obligated to cure, or permit payment of, any voluntarily created liens encumbering
the Property at Closing.
5.012. If Purchaser shall fail to advise the Seller in writing of any such objections in
Seller's title in the manner herein required by this Agreement, the title shall be
deemed acceptable. Upon notification of Purchasers objection to title, Seller shall
have 30 days to remedy any such objections or defects in order to convey good and
marketable title and Seller shall use its best efforts to do so in order to make title
good and marketable. However, Seller's best efforts do not require that it payor
satisfy any involuntarily created or suffered liens that it disputes, but Purchaser is not
required to accept such involuntarily created or suffered liens. Seller shall be
required to payor satisfy voluntarily created liens at closing. In the event Seller is
unable to cure said objections within said time period. Purchaser, by providing
written notice to Seller within seven (7) days after expiration of said thirty (30) day
period, may accept title as it then is, waiving any objection; or Purchaser may
terminate the Agreement or Purchaser and Seller may extend the Agreement by
mutual written agreement of the parties hereto. A failure by Purchaser to give such
written notice of termination within the time period provided herein shall be deemed
an election by Purchaser to accept the exceptions to title as shown in the title
commitment.
5.013. Seller agrees to furnish any existing surveys of the Property in Seller's
possession to Purchaser within 10 (ten) days of the effective date of this Agreement.
Purchaser shall have the option, at its own expense, to obtain a current survey of the
Property prepared by a surveyor licensed by the State of Florida. No adjustments to
the Purchase Price shall be made based upon any change to the total acreage
referenced in Exhibits A-1, A-2, B.1 and B-2, if any.
VI. APPRAISAL
6.01. Purchaser has obtained the required appraisals to determine the value of the
Property pursuant to the requirements of Florida Statutes, s.125.355.
VII. INSPECTION
7.01. Purchaser shall have until December 24,2008, ("Inspection Period"), to determine
through appropriate investigation that:
7.011. There are no abnormal drainage or environmental requirements to the
development of the Property.
7.012. With the exception of the existing, single-walled Underground Storage Tank,
the Property is in compliance with all applicable State and Federal environmental laws
and the Property is free from any pollution or contamination.
7.013. The Property can be utilized for its intended uses and purposes for boat trailer
and car parking, boat launch ramps, boat and trailer storage, waterfront and other park
and recreational uses, a fueling facility, a ship's store, rest rooms, offices, a Manatee
and 10,000 Islands educational center, and a fire station and emergency medical
services facility
7.014. All structures and improvements on the property are sound, and all systems,
fixtures and appliances are in good and safe operating condition.
7.015. The intended uses of the Property as a continuation of existing Operations
and as a permanent fire station and emergency medical services facility is and will be
permissible under existing zoning and planning regulations.
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7.02. If Purchaser is not satisfied, for any reason whatsoever, with the results of any
investigation. Purchaser shaU deliver to Seller, prior to the expiration of the Inspection
Period, written notice of its intention to waive the applicable contingencies or to terminate
this Agreement. If Purchaser fails to notify the Seller In writing of its specific objections as
provided herein within the Inspection Period, it shall be deemed that the Purchaser is
satisfied with the results of its investigations and the contingencies of Section VIII shall be
deemed waived. In the event Purchaser elects to terminate this Agreement because of the
results of its inspection and investigations, Purchaser shall deliver to Seller copies of all
engineering reports, structural and systems inspection reports, and environmental and soil
testing results commissioned by Purchaser with respect to the Property.
7.03. Purchaser and its agents, employees and servants shall, at their own risk and
expensB, have the right to go upon the Property at all reasonable times for the purpose of
surveying and conducting site analyses, soil borings and all other necessary investigations
and inspections. Purchaser shall, in performing such tests, investigations and inspections,
use due care not to damage the property in any manner. Seller shall be notified by
Purchaser no less than twenty-four (24) hours prior to any said inspection of the Property.
7.04. Seller acknowledges that the Purchaser, or its authorized agents, shall have the
right to inspect the Property at any time prior to the Closing, and Seller shali assist
Purchaser in obtaining tenants' cooperation in the performance of these inspections.
7.05. At Closing, Seller shall validly transfer to Purchaser the 20 Year Roof Membrane
Limited Warranty received from Certainteed Commercial Roofing Systems dated
September 23. 2006. Selier shall have no further liability regarding the physical condition
of the Property, and Purchaser agrees, subject to the provisions of Paragraph 8.05 hereof,
to accept the Property In its "as is~ condition without warranty as to fitness or condition.
7.06. Prior to Closing, Seller shall ensure that the inoperable fire hydrants existing upon
the Property are connected and operational and are capable of delivering reliable
pressures and flows acceptable to the Ochopee Fire and Rescue District.
VIIi. POSSESSION. EXISTING LEASES AND AGREEMENTS AND OCCUPANCY
8.01. Purchaser shall be entitled to full possession of the Property at Closing, excepting
only those tenants in possession under those existing leases, storage agreements and
contracts set forth in Exhibit C , and premises to be leased to Seller at the time of Closing
in accordance with the Lease Agreement set forth in Exhibit E attached hereto and made
a part hereof by reference.
8.02. At Closing, Seller shall execute, acknowledge and deliver to Purchaser, in
recordable form, a valid and enforceable assignment of all of the aforesaid leases,
storage agreements and contracts and the rents, taxes, storage fees and assessments
associated therewith. Rents, taxes, storage fees, and assessments and other expenses
pertaining to the Property shall be prorated between Seller and Purchaser at closing
based upon the applicable period, and Seller shall be responsible for payment, at closing,
of all taxes, assessments and other expenses pertaining to the Property up to and
including the date of Closing.
8.03. At Closing, Seller shall pay over to Purchaser any and all security deposits and
pre~paid rents and storage fees held on account of those tenants in possession as shown
on Exhibit C .
8.04. Prior to December 24, 2008, Seller shan provide Purchaser with acceptable proof
that all leases and storage agreements are in good standing and not in default and,
specifically, that all tenants have procured and are maintaining policies of insurance as
set forth in their leases or otherwise, and that the indemnities of said pOlicies may be
assigned to Purchaser as Landlord. Seller further agrees, prior to December 24, 2008, to
permit Purchaser to inspect Seller's rental receipts (rent rolls) for the past two (2) years for
all current tenants subject to written leases, and to review repair and maintenance records
for the buildings and other improvements upon the property, and Purchaser's
performance hereunder shall be contingent upon the acceptability of said inspection and
review.
8.05. At the time of Closing, with the exception of those areas occupied in accordance
with those leases, storage agreements and contracts set forth on Exhibits C and D , in
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good standing, the Property will be delivered to Purchaser broom clean and free from all
occupants, and their possessions, and the structures, systems and other improvements
will be in the same condition as existed at the time of Purchaser's structural and systems
inspections, reasonable wear and tear resulting from customary use and corrections to
discovered defects excepted.
8.06. Without limitation of the foregoing, any boats, trailers, vehicles or other items
existing on the property by virtue of storage agreements that are not in good standing
shall be removed from the Property prior to Closing, and Seller shall assume all liability
therefor.
8.07. Performance by Purchaser hereunder is conditioned upon a satisfactory
determination and opinion from the Purchaser's counsel that Purchaser may assume all
leases, storage agreements, and contracts set forth on Exhibit C, which said
determination shall be made prior to December 24, 2008.
8.08. At or before Closing, Seller shall provide to Purchaser estoppel ietlers from all
current tenants subject to written leasBs. including attornment provisions and in form and
content acceptabie to Purchasers counsel.
IX. ADDITIONAL CONTINGENCIES
9.01. Performance by Purchaser hereunder is contingent upon Purchaser's obtaining,
prior to Closing and at Purchaser's sole cost and expense, the following items from Port
of the Islands Community Improvement District:
9.011. A perpetual, non-exclusive easement for all purposes of vehicular and
pedestrian access and ingress, including use by the general public, from the
public right of way of U.S. Route 41 to the south boundary of the parcel
described on Exhibit A-1, over the entire width of the right of way of Newport
Drive.
9.012. Adequate assurances, by estoppel letter or othelWise, that sufficient
Equivalent Residential Connections (ERC's) will be provided to Purchaser for
existing uses and Operations plus uses as a fire station, irrespective of the
location of the fire station upon the Property, all at no present or future cost to
Purchaser.
9.02. Periormance by Purchaser hereunder is contingent upon a determination, by
Purchaser's counsel, that the rights attributable to the Property under that certain
Reciprocai Parking Easement Agreement dated June 20, 2008 and recorded June 23,
2006 at O.R. Book 4060, Page 3149, Public Records of Coliier County, Florida, run with
the Property and will inure to the benefit of Purchaser after Closing, and that Purchaser
will not thereby be subject to liabilities unacceptable to a public governmental entity
without modification to said Reciprocal Parking Easement Agreement.
9.03. Performance by Seller hereunder is contingent upon the execution, by Seller and
Purchaser, of that certain Lease Agreement set forth in Exhibit D attached hereto and
incorporated herein by reference, which said Lease Agreement provides in pertinent part
that Seller and/or Seller's assigns shall be allowed exclusive use of certain offices in the
marina building for a period of nine (9) years following Closing at no cost to Seller other
than the charges reflected in the Lease Agreement.
9.04. Performance by SeUer is contingent upon Purchaser permitting Seller and/or
Seller's assigns to retain perpetual exclusive use of six (6) parking spaces for purposes
of loading and unloading, two (2) of said spaces to be located as conveniently as
possible to each of the access ways to Docks A, B, and C of the Port of the Islands
Marina Condominium at locations to be from time to time determined, and the provisions
of this Paragraph 9.04 shall survive the Closing.
9.05. Performance by Purchaser is contingent upon Purchaser's ability to obtain all
permits and licenses necessary to continue the Operations currently existing upon the
Property without interruption. To aid in this endeavor, Seller agrees that Seller and
certain members of Seller's staff shall be available to Purchaser to provide assistance
and consultation during a transition period not to exceed two (2) months following
Closing. In addition, if necessary, Seller agrees to continue Operations under Seller's
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permits and licenses during this period for the benefit and account of Purchaser until
Purchaser's permits and licenses are effective, all at no additional cost or expense to
Purchaser.
X. PRORATIONS
10.01. Ad valorem taxes and assessments due and payable on the Property at Closing
shall be paid by Seller at Closing and prorated between the Seller and Purchaser. Seller
shall further pay all 2008/2009 non-ad valorem taxes and assessments.
10.02. Rents, storage fees, and any other adjustments shall be prorated between the
parties as of the date of Closing, with Seller being entitled to these items through the date
of Closing and Purchaser being so entitled thereafter.
XI. TERMINA nON AND REMEDIES
11.01. If Seller shall have failed to perform any of the covenants and/or agreements
contained herein which are to be performed by Seller, within ten (10) days of written
notification of such failure, Purchaser may, at its option, terminate this Agreement by
giving written notice of termination to Seller. Purchaser shall have the right to seek and
enforce all rights and remedies available at law or in equity to a contract vendee, including
the right to seek specifiC performance of this Agreement.
11,02. If Purchaser has not terminated this Agreement pursuant to any of the provisions
authorizing such termination, and Purchaser fails to close the transaction contemplated
hereby or otherwise fails to perform any of the terms, covenants and conditions of this
Agreement as required on the part of Purchaser to be performed, provided Seller is not in
default, then as Seller's sole remedy, Seller shall have the right to terminate and cancel
this Agreement by giving written notice thereof to Purchaser, and neither party shall have
any further liability or obligation to the other.
11.03. The parties acknowledge that the remedies described herein and in the other
provisions of this Agreement provide mutually satisfactory and sufficient remedies to each
of the parties, and take into account the peculiar risks and expenses of each of the
parties.
XII. SELLER'S AND PURCHASER'S REPRESENTATIONS AND WARRANTIES
12.01. Seller and Purchaser represent and warrant the foliowing:
12.011. Selier and Purchaser have full right and authority to enter into and to
execute this Agreement and to undertake all actions and to perform all tasks
required of each hereunder. Selier is not presently the subject of a pending,
threatened or contemplated bankruptcy proceeding.
12.012. Seller has full right, power, and authority to own and operate the
Property, and to execute, deliver, and perform its obligations under this
Agreement and the instruments executed in connection herewith, and to
consummate the transaction contemplated hereby. All necessary authorizations
and approvals have been obtained authorizing Seller and Purchaser to execute
and consummate the transaction contemplated hereby. At Closing, certified
copies of such approvals shall be delivered to Purchaser and/or Seller, if
necessary.
12.013, The warranties set forth in this Sectlon shall be true on the date of this
Agreement and as of the date of Closing.
12.014, Seller represents that it has no knowledge of any actions, suits, claims,
proceedings, litigation or investigations pending or threatened against Seller, at
law, equity or in arbitration before or by any Federal, State, municipal or other
governmental Instrumentality that relate to this Agreement or any other property
that could, if continued, adversely affect Seller's ability to sell the Property to
Purchaser according to the terms of this Agreement.
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12.015. No party or person other than Purchaser has any right or option to
acquire the Property or any portion thereof, excepting those portions subject to
leases, storage agreements and contracts to be assumed or granted as detailed
on Exhibits C and D hereto.
12.016. Until the date fixed for Closing, so long as this Agreement remains in
force and effect, Seller shall not encumber or convey any portion of the Property
or any rights therein, nor enter into any agreements granting any person or entity
any rights with respect to the Property or any part thereof, without first obtaining
the written consent of Purchaser to such conveyance, encumbrance, or
agreement, which consent may be withheld by Purchaser for any reason
whatsoever.
12.017 To the best of Seller's knowledge: Seller represents that there are no
incinerators, septic tanks or cesspools on the Property; all waste, if any, is
discharged into a community sanitary sewer system. Seller represents that it has
no knowledge that any pollutants are or have been discharged from the Property,
directly or indirectly into any body of water. Other than the Underground Storage
Tank referenced in Section XVI hereof, Seller represents that, to the best of
Seller's knowledge, the Property has not been used for the production. handling,
storage, transportation, manufacture or disposal of hazardous or toxic
substances or wastes, as such terms are defined in applicable laws and
regulations, or any other activity that would have toxic results, and no such
hazardous or toxic substances are currently used in connection with the
Operations on the Property other than the sale of gasoline, and there is no
proceeding or inquiry by any authority with respect thereto. Seller represents that
it has no knowledge that there is ground water contamination on the Property or
potential of ground water contamination from neighboring properties. Seller
represents that, to the best of Seller's knowledge, no storage tanks for gasoline
or any other substances are or were located on the Property at any time during
or prior to Seller's ownership thereof, with the exception of the existing single-
walled Underground Storage Tank and prior fuel tanks as disclosed to
Purchaser. Seller represents that, to the best of Seller's knowledge, no part of
the Property has been used as a sanitary landfill.
12.018. Seller has no knowledge that the Property and Seller's operations
concerning the Property are in violation of any applicable Federal, State or local
statute, law or regulation, or of any notice from any governmental body that has
been served upon Seller claiming any violation of any law, ordinance, code or
regulation or requiring or calling attention to the need for any work, repairs,
construction, alterations or installation on or in connection with the Property in
order to comply with any laws, ordinances, codes or regulation with which Seller
has not complied.
12.019. To the best of Seller's knowledge, there are no unrecorded restrictions,
easements or rights of way (other than existing zoning regulations) that restrict or
affect the use of the Property, and there are no maintenance, construction,
advertisIng, management, leasing, employment, service or other contracts
affecting the Property, other than as specifically disclosed to Purchaser.
12.020. Seller has no knowledge that there are any suits, actions or arbitration,
bond issuances or proposals therefor, proposals for public improvement
assessments, pay.back agreements, paving agreements, road expansion or
improvement agreements, utility moratoriums, use moratoriums, improvement
moratoriums, administrative or other proceedings or, governmental or quasi-
governmental investigations or requirements, formal or informal, existing or
pending or threatened which affect the Property or which adverseiy affects
Seller's ability to perform hereunder; nor is there any other charge or expense
upon or related to the Property which has not been disclosed to Purchaser in
writing prior to the effective date of this Agreement.
12.021. Seller acknOWledges and agrees that Purchaser is entering into this
Agreement based upon SeUer's representations stated above and on the
understanding that Seller will not cause the zoning or physical condition of the
Property to change from its existing state on the effective date of this Agreement
up to and including the date of Closing. Therefore, Seller agrees not to enter into
any contracts or agreements pertaining to or affecting the Property and not to do
any act or omit to perform any act which would change the zoning or physical
condition of the Property or the governmental or quasi-governmental ordinances
or lews governing same. Seller also agrees to notify Purchaser promptly of any
change in the facts contained in the foregoing representations and of any notice
or proposed change in the zoning, or any other action or notice, that may be
proposed or promulgated by any third parties or any governmental or quasi-
governmental authorities having jurisdiction of the development of the Property
which may restrict or change any other condition of the Property.
12.022. At Closing, Seller shall deliver to Purchaser a statement (hereinafter
called the "Closing Representative Statement") reasserting the foregoing
representations as of the date of Closing, which provisions shall survive the
Closing.
12.023. Seller agrees to indemnify, reimburse, defend and hold Purchaser
harmless from any and all costs (including attorney's fees) asserted against,
imposed on or incurred by Purchaser, directly or indirectly, pursuant to or in
connection with the application of any Federal, State, local or common law
relating to pollution or protection of the environment which shall be in accordance
with, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601. et seq.,
("CERCLA" or "Superfund"), which was amended and upgraded by the
Superfund Amendment and Reauthorization Act of 1986 ("SARA"), including any
amendments or successor in function to these acts; provided, however, that
Seller's indemnity obligations hereunder are limited to environmental liability
arising from the acts or omissions of Seller and its employees. This provision,
and the rights of Purchaser hereunder, shall survive Closing and are not deemed
satisfied by conveyance of title.
12.024. Any loss and/or damage to the Property between the date of this
Agreement and the date of Closing shall be Seller's sole risk and expense.
XIII. NOTICES
13.01 Any notice, request, demand, instruction or other communication to be given to
either party hereunder shaH be in writing, sent by registered or certified mail, or ovemight
delivery service, return receipt requested, postage and fees prepaid, addressed as
follows:
If to Purchaser:
Gary Bigelow
Real Property Management
Building W, Facilities Management
3301 Tamiami Trail East
Naples, Florida 34112
With a copy to:
Jennifer A. Belpedio, Esquire
Assistant County Attorney
Office of the County Attorney
Administration Building
3301 Tamiami Trail East
Naples. Florida 34112
If to Seller:
James Shucart
2614 Tamiami Trail North, Suite 700
Naples. FL 34 1 03
Christopher Shucart
2614 Tamiami Trail North, Suite 615
Naples, FL 34103
With a copy to:
Will J. Dempsey. Esquire
Cheffy, Passidomo, Wilson & Johnson, LLP
821 Fifth Avenue South, Suite 201
Napies. FL 34102
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13.02. The addressees and addresses for the purpose of this Section may be changed
by either party by giving wriUen notice of such change to the other party in the manner
provided herein. For the purpose of changing such addresses or addressees only, unless
and until such written notice is received, the last addressee and respective address stated
herein shall be deemed to continue in effect for all purposes. For purposes of notice
requirements herein, notice shall be deemed given upon receipt.
XIV. REAL ESTATE BROKERS
14.01. Any and all brokerage commissions or fees shan be the sole responsibility of the
Seller. Seller shall indemnify Purchaser and hold Purchaser harmless from and against
any claim or liability for commission or fees to any broker or any other person or party
claiming to have been engaged by Seller as a real estate broker, salesman or
representative, In connection with this Agreement Seller agrees to pay any and all
commissions or fees at closing pursuant to the terms of a separate agreement, if any.
XV. MISCELLANEOUS
15,01. This . Agreement may be executed in any number of duplicate original
counterparts which together shall constitute the agreement of the parties.
15.02. This Agreement and the terms and provisions hereof shall be effective as of the
date this Agreement is executed by both parties and shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors, personal
representatives, successors, successor trustees, and assignees whenever the context so
requires or admits.
15.03. Any amendment to this Agreement shall not bind any of the parties hereto unless
such amendment is in writing and executed and dated by Purchaser and Seller. Any
amendment to this Agreement shall be binding upon Purchaser and Seller as soon as it
has been executed by both parties.
15.04. Captions and section headings contained in this Agreement are for convenience
and reference only; in no way do they define, describe, extend or limit the scope or intent
of this Agreement or any provisions hereof.
15.05. All terms and words used in this Agreement. regardless of the number and
gender in which used, shall be deemed to include any other gender or number as the
context or the use thereof may require.
15.06. No waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party against whom it is asserted, and any waiver of any provision of
this Agreement shall be applicable only to the speCific instance to which it is related and
shall not be deemed to be a continuing or future waiver as to such provision or a waiver
as to any other provision.
15.07. If any date specified in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date to whIch such reference is made shall be extended to the next
succeeding business day.
15.08. Seller is aware of and understands that the "offer" to purchase represented by
this Agreement is subject to acceptance and approval by the Board of County
Commissioners of Collier County, Florida.
15.09. If the Seller holds the Property in the form of a partnership, limited partnership,
corporation, trust or any form of representative capacity whatsoever for others, Seller
shall make a written public disclosure, according to Chepter 286, Florida Statutes, under
oath, of the name and address of every person having a beneficial interest in the Property
before Property held in such capacity is conveyed to the Purchaser.
15.10. This Agreement is governed and construed in accordance with the laws of the
State of Florida.
15.11. This Agreement will be effective as of the date of Purchaser's execution of this
Agreement.
.:t{OA
XVI. UNDERGROUND STORAGE TANK RESPONSIBILITIES
16.01 As soon as practicable following Closing. and prior to December 31, 2009, the
Purchaser shall, at its own cost and expense, estimated to be in the amount of Two
Hundred Thousand and no/100 Dollars ($200,000), excavate and replace the existing
single-walled Underground Storage Tank in accordance with all Florida laws and
regulations.
16.02. At the time of said excavation and replacement. should it be determined that no
remediation of soil and ground water contamination resulting from the existing
Underground Storage Tank is required, all funds held in escrow pursuant to Paragraph
3.03 hereof, together with accrued interest, shall be paid over to Seller.
16.03. At the time of said excavation and replacement, should it be determined that
remediation of soil and ground water contamination resulting from the existing
Underground Storage Tank is necessary or required under Florida Jaws and regulations,
Seller shall reimburse Purchaser for any and all costs associated with such remediation,
including periodic monitoring, in an amount not to exceed Two Hundred Thousand and
no/100 Dollars ($200,000) plus accrued interest.
16.04. Funds held in escrow pursuant to Paragraph 3.03 hereof, together with accrued
interest, shall be used to satisfy Seller's obligations under Paragraph 16.03. As expenses
are incurred under Paragraph 16.03, payments to the Purchaser shall be made from the
funds so held. At such time that Purchaser obtains written approval from the Florida
Department of Environmental Protection (FDEP) that remediation complies with Florida
laws and regulations, and that no further monitoring activities are required, any remaining
funds held, together with accrued interest, shall be paid over to the Seller.
16.05. Following disbursement pursuant to Paragraphs 16.02 or 16.04 hereof, Seller and
Purchaser shall have no further obligation to one another resulting from the provisions of
this Section XVI.
16.08. The terms and provisions of this Section XVI constitute agreed-upon instructions
to the Escrow Agent for disbursement of the escrowed funds and shall survive closing.
XVII. ENTIRE AGREEMENT
17.01. This Agreement and the Exhibits attached hereto contain the enUre agreement
between the parties, and no promise, representation, warranty or covenant not included in
this Agreement or any such referenced agreements has been or is being relied upon by
either party. No modification or amendment of this Agreement shall be of any force or
effect unless made in writing and executed and dated by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto set forth hands and seals as of the date first above
written.
Date ProjecVAcquisltion Approved by
BCC:
AS TO PURCHASER:
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
Tom Henning, Chairman
, Deputy Clerk
:tt-lQA
AS TO SELLER:
DATED t:iJh/O'i'
THE ISLANDS MARINA, LLC,
a Florida limited liability company
WITNESSES,
C~?
(Sig at re)
,fll.Nt, ~vt;$ Ei.-L
(Pr' d Name)
BY.
es Shucart, Manager
tf-c=u;; ".J
WITNESSES,
"'/~fL
(Signature)"
/f/~ ~()$S'e<-<--
. led Name)
By(lJ. ,9\ +
Christopher Shucart, Manager
t~
J
AS TO SELLER:
DATED: 1;;1./11 /04:
.
PORT OF THE ISLANDS PROPERTIES. LLC,
a Florida imited liability company
WITNESSES:
. (~zt;r-
IIIINt; l2-U';SE'LL
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(Printed Name)
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(Signature)
1-119 toJC ii= ()t;~ G' l.-L-
(Printed Name)
\
BY C~.~ \
Christopher Shucart, Manager
Approved as to form and
legal sufficiency:
\().R. \) f"': .--,
JennlPer A. Belpedi
Assistant County Attorney
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.:tt{DA
EXHIBIT C
Page 1 of 3
Leases:
Schedule of Leases, Storage Agreements and Contracts to be Assumed
Suite No. 3 (Co-Tenant)
Tenant: Performance Mobile Marine of Naples, Inc.
Principal: Richard Law
Address: 775 17'h Street SW, Naples, Florida 34117
Use: Office space for boat rentals
Rent: (upiand share): $450.00Imonth. $468.00 as of December 1, 2006
Utilities: $45.00/month electrical service
Security Deposit: (upland share) $450.00
Prepaid Rent: (upland share) $450.00 last month rent
Termination: November 30, 2009
Renewal: Option for two years: to November 30, 2011
Remarks: Monthly rates increase by 4% on December 15t of each year
Suite NO.3 (Co-Tenant)
Tenant: The Boat Club, Inc.
Principal: William R. Minder
Address: 78014" Avenue NW, Napies. Florida 34120
Use: Office for operation of private membership boat club
Rent: (upland share): $450.00Imonth - $488.00 as of December 1, 2008
Utilities: $4S.00/month electrical service
Security Deposit: (upland share) $450.00
Prepaid Rent: (upland share) $450.00 last month rent
Termination: November 30, 2009
Renewal: Option for two years, to November 30, 2011
Remarks: Monthly rates increase by 4% on December 1 at of each year
Storage Agreements and Contracts:
Name:
Address:
Telephone:
Prepaid Annual Rent
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Aaron C. Winans
2011 Gulf Shore Boulevard N. Naples, Florida 34102
859-533-8948, cell: 859-533-2709
$1,500.00
February 5, 2008 - February 5, 2009
Frank Keller
7840 Oldfield Road, Crestline, Ohio 44827
419-683-4980, cell: 419-295-2361
$1.375.00
March 31, 2008 - March 30, 2009
Gordy Torgerson
302 Newport Drive, No. 1512, Napies, Florida 34114
239-389-0973, ceil: 612-597-7758
$1.50000
January 1, 2008 - January 1, 2009
Jeff Biery
P.O. Box 279, Damascus, Ohio
330-537-2021, cell: 330-429-1481
$1,375.00
April 2, 2008 - April 1 , 2009
Joe Bivona
194 Newport Drive, Naples, Florida 34114
239-394-7206, cell: 860-778-3474
$1,300.00
May 2, 2008 - May 1, 2009
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
ilDA
EXHIBIT C
Page 2 of 3
John Javor
25054 Peacock Lane, No. 202, Naples, Florida 34114
239-331-7478
$1500.00
November 1, 2008 - November 1. 2009
John J. Robison
10425 SW 52"" Terrace, Miami, Florida 33185
305-279-3589, cell: 786-236-7165
$1,500.00
September 10, 2008 - September g, 2009
Martin McAlpine
Sunrise Cay, Bldg. 237, No. 102, Naples, Florida
239-394-8088, cell: 783-682-53671612-720-7979
$1,200.00
March 5, 2008 - March 4, 2009
Ed Gubanich
4100 Oaglia Street, Denver, Colorado 80216
303-377-5188
$1,375.00
July 1, 2008 - June 30, 2009
Martin P. Hussey
4915 Rattlesnake Hammock Road, No.1 02, Naples, Florida 34113
$1.500.00
March 24, 2008 - March 23, 2009
Robert Streck
10 Homestead Lane, East Hampton, New York 11937
239-417-0666, cell: 631-324-5742
$1,375.00
May 2, 2008 - May 1, 2009
Steven Wilkerson
954-928-0408, cell: 954-850-4072
$1.500.00
February 19, 2008 - February 19, 2009
Ted Townsend
117 Newport Drive, Naples. Florida 34114
$1,475.00
May 16, 2008 - May 15, 2009
Victor G. Santamarina
2330 Queens Way, Naples, Florida 34112
239-530-1705, cell: 239-272-9458
$1,375.00
April 12, 2008 - April 11 ,2009
William B. Ansley
278 Newport Drive, No. 201, Naples, Florida 34114
720 Carson Valley, Duncansville, Pennsylvania 16635
814-695-9817, cell: 814-932-9817
$1,375.00
April 1, 2008 - April 1 , 2009
Name:
Address:
Telephone:
Prepaid Annual Rent:
Term:
Name:
Address:
Telephone:
Prepaid Annual Rent
Term:
EXHIBIT C
Page 3 of 3
William D. Nelson
P.O. Box 217, Stone Lake, Wisconsin 54876
715-579-1100
$1,200.00
May 23, 2008 - May 23, 2009
Mike Trepanier
14690 SW 156" Avenue, Miami, Florida 33196
305-803-0359
$1.500.00
June 28, 2008 - June 27, 2009
#-\oA
.:trIM
EXHIBIT ~..
Page--L-of~
Lease #
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into this _ day of December, 2008, between The
Islands Marina, LLC and Port of the Island Properties, LLC, whose mailing address is 2614 Tamiami
Trail North, Suite 615, Naples, Florida 34103, hereinafter referred to as "LESSEE," and COLLIER
COUNTY, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami
Trail, Naples, Florida 34112, hereinafter referred to as "LESSOR."
WITNESSETH
In consideration of the mutual covenants contained herein, and other valuable consideration, the
parties agree as follows:
ARTICLE I.
Demised Premises
LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR Suites # 1 and #2
located at 525 Newport Drive, Naples, Florida 341 ]4, which is further described in Exhibit "A," and
whi,ch is attached hereto and made a part of this Lease, hereinafter called the "Demised Premises,"
situated in the County of Collier and the State of F]orida, for the sole purpose of operating a marina sales
and property management office.
ARTICLE 2.
Term of Lease
LESSEE shall have and hold the Demised Premises for a term of nine (9) years, commencing on
January 1,2009 and ending nine (9) years from that date.
LESSOR reserves the right to tenninate this Lease, upon material default by Lessee, by providing
LESSEE with sixty (60) days written notice to the address set forth in Article 14 of this Lease. Said
notice shall be effective upon placement of the notice in an official depository of the United States Post
Office, Registered or Certified Mail, Postage Prepaid.
ARTICLE 3. Rent
LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the sum of One
Dollar and 001100 Cents ($1.00) per annum. The rent for the entire lease tenn shall be paid in full thirty
(30) days following the execution of this Lease by LESSOR.
ARTICLE 4.
~ Expenses and Char"'es
LESSEE shall pay all costs associated with telephone and any communications service as well as
janitorial services rendered at the Demised Premises. LESSOR shall have no obligation to provide any
of the aforementioned services to the Demised Premises.
LESSEE shall pay a monthly fee of Ninety Dollars ($90.00) to LESSOR at the address set forth in
this Lease, for electrical service.
ARTICLE 5.
Modifications to Demised Premises
Prior to making any changes, alterations, additions or improvements to the Demised Premises,
LESSEE will provide to LESSOR all proposals and plans for alterations, improvements, changes or
additions to the Demised Premises for LESSOR'S written approval, specifying in writing the nature and
extent of the desired alteration, improvement, change, or addition, along with the contemplated starting
and completion time for such project. LESSOR or its designee wlll then have sixty (60) days within
which to approve or deny in writing said request for changes, improvements, alterations or additions.
LESSOR shall not unreasonably withhold its consent to required or appropriate alterations,
improvements, changes or additions proposed by LESSEE. If after sixty (60) days there has been no
response from LESSOR or its designee to said proposals or plans, then such silence shall be deemed as a
denial to such request to LESSEE.
LESSEE covenants and agrees in connection with any maintenance, repair work, erection,
construction, improvement, addition or alteration of any authorized modifications, additions or
improvements to the Demised Premises, to observe and comply with all then and future applicable law~,
EXHIBIT L..
Page..2.-of -S:.-
:tlDA
ordinances, rules, regulations, and requirements of the United States of America, State of Florida, County
of Collier, and any and all governmental agencies.
LESSEE may install signage on the exterior of the Demised Premises. provided that such signage
is consistent with the style and quaHty of existing signage and accords with applicable laws and
regulations.
All alterations, improvements and additions to said Demised Premises shall at once, when made or
installed, be deemed as attached to the freehold and to have become property of LESSOR. Prior to the
termination of this Lease or any renewal tenn thereof, or within thirty (30) days thereafter, if LESSOR so
directs, LESSEE shall promptly remove the additions, improvements, alterations, fixtures and
installations which were placed in, on, or upon the Demised Premises by LESSEE, and repair any
damage occasioned to the Demised Premises by such removal; and in default thereof, LESSOR may
complete said removals and repairs at LESSEE'S expense.
LESSEE covenants and agrees not to use, occupy, suffer or permit said Demised Premises or any
part thereof to be used or occupied for any purpose contrary to law or the rules or regulations of any
public authority.
ARTICLE 6.
Access to Demised Premises
LESSOR, its duly authorized agents, representatives and employees, shall have the right after
reasonable notice to LESSEE, to enter into and upon the Demised Premises or any part thereof at all
reasonable hours for the purpose of el'amining the same and making repairs or providing services therein,
and for the purposes of inspection for compliance with the provisions of this Lease Agreement.
ARTICLE 7.
Assilmment and Sublettinl!.
LESSEE covenants and agrees not to sublet any part of the Demised Premises, or to penn it any
other persons to occupy same without the written consent of LESSOR, LESSEE may assign its rights
hereunder with the prior consent of LESSOR, which consent shall not be unreasonably conditioned,
withheld, or delayed. Any such assignment or subletting,. even with the consent of LESSOR, shall not
relieve LESSEE from liability for payment of rent or other sums herein provided or from the obligation
to keep Dnd be bound by the terms, conditions and covenants of this Lease. The acceptance of rent from
any other person shall not be deemed to be a waiver of any of the provisions of this Lease or to be
consent to the assignment of this Lease or subletting of the Demised Premises.
ARTICLE 8.
Indemnitv
LESSEE, in consideration of Ten Dollars ($10.00), the receipt and sufficiency of which is hereby
acknowledged, shall indemnify, defend and hold harmless LESSOR, its agents and employees from and
against any and all liability (statutory or otherwise), damages, claims, suits, demands, judgments, costs,
interest and expenses (including, but not limited to, attorneys' fees and disbursements both at trail and
appellate levels) arising, directly or indirectly, from any injury to, or death of, any person or persons or
damage to property (including loss of use thereof) related to (A) LESSEE'S use of the Demised Premises,
(8) any work or thing whatsoever done, or any conditions created (other than by LESSOR, its employees,
agents or contractors) by or on behalf of LESSEE in or about the Demised Premises, (C) any conditions
of the Demised Premises due to or resulting from any default by LESSEE in the performance of
LESSEE'S obligations under this Lease, or (D) any act, omission or negligence of LESSEE or its agents,
contractors, employees, subtenants, licensee or invitees. In case any action or proceeding is brought
against LESSOR by reasons of anyone or more thereof, LESSEE shall pay all costs, attorneys' fees,
expenses and liabilities resulting therefrom and shall defend such action or proceeding if LESSOR shall
so request, at LESSEE'S expense, by counsel reasonably satisfactory to LESSOR.
The LESSOR shall not be liable for any injury or damage to person or property caused by the
elements or by other persons in the Demised Premises, or from the street or sub-surface, or from any
other place, or for any interference caused by operations by or for a govemmental authority in
construction of any pubHc or quasi-public works.
The LESSOR shall not be liable for any damages to or loss of, including loss due to petty theft,
any property, occurring on the Demised Premises or any part thereof, and the LESSEE agroes to hold the
LESSOR harmless from any claims for damages, except where such damage or injury is the result of the
gross negligence or willful misconduct of the LESSOR or its employees.
2
=*lofl
EXHIBIT ()
Page~of~
ARTlCLE 9. Jnsurance
LESSEE shall provide and maintain general liability and property liability insurance policy(ies)
pursuant to the provision of the Florida Insurance Risk Management Trust Fund and pursuant to the
provisions of Section 768.28, Florida Statutes, during the term of this Agreement. In addition, LESSEE
shal1 provide and maintain Worker's Compensation lnsurance covering all employees meeting Statutory
Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's
Liability with a minimum limit of One Hundred Thousand Dollars and No/loa Cents ($100,000.00) each
accident.
Evidence of such insurance shall be provided to the Collier County Risk Management Department,
3301 East Tamiami Trail, Administration Building, Naples, Florida, 34112, for approval prior to the
commencement of this Lease Agreement; and shall include a provision requiring thirty (30) days prior
written notice to Collier County c/o County Risk Management Department in the event of cancellation or
changes in policy(ies) coverage.
The LESSEE acknowledges and agrees that no changes or cancellations to the insurance coverage
will occur without thirty (30) days prior written notice to LESSOR. LESSEE shall ensure that LESSEE'S
insurance provider will be responsible for notifying the LESSOR directly of any changes related to
insurance coverage. LESSEE shall also ensure that the insurance coverage provided in accordance with
this agreement shall require that the company or companies writing such insurance policy(ies) shall
provide to LESSOR written notice of cancellation thirty (30) days prior to the proposed cancellation.
LESSOR reserves the right to reasonably amend the insurance requirements by issuance of notice in
writing to LESSEE, whereupon receipt of such notice Lessee shall have thirty (30) days in which to
obtain such additional insurance.
ARTICLE 10. Maintenance
LESSEE shall keep the Demised Premises clean at all times at its sole cost and expense.
ARTICLE 11. Default bv LESSEE
Failure of LESSEE to comply with any provision or covenant of this Lease shall constitute a
default and LESSOR may, at its option, terminate this Lease after providing written notice to LESSEE,
as specified in Article 2 of this Lease, unless the default be cured within the sixty (60) day notice period
(or such additional time as is reasonably required to correct such default).
ARTICLE 12. Default by LESSOR
LESSOR shall in no event be charged with default in the performance of any of its obligations
hereunder unless and until LESSOR shall have failed to perform such obligations within thirty (30) days
(or such additional time as is reasonably required to correct such default) after notice to LESSOR by
LESSEE properly specifying wherein LESSOR has failed to perfonn any such obligations.
ARTICLE 13. Notices
Any notice which LESSOR or LESSEE may be required to give to the other party shall be in
writing to the other party at the following addresses:
LESSOR:
LESSEE:
Board of County Commissioners
c/o Real Property Management
Building 'W'
330 I East Tamiami Trail
Naples, Florida 34112
James and Christopher Shucart
The Islands Marina, LLC and Port of the Island
Properties, LLC
2614 Tamiami Trail North
Suite 615
Naples, Florida 34103
~c: Office of the County Attorney
ARTICLE 14. Surrender of Premises
LESSEE shall deliver up and surrender to LESSOR possession of the Demised Premises at the
termination of this Lease, or its earlier termination as herein provided, broom clean and in as good
condition and repair as the same shall be at the commencement of the term of this Lease or may have
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been put by LESSOR or LESSEE during the continuance the~of, ordinary wear and tear and damage by
fire or the elements beyond LESSEE'S control excepted.
ARTICLE 15. General Provisions
LESSEE expressly agrees for itself, its successor and assigns, to refrain from any use of the
Demised Premises which would interfere with or adversely affect the operation or maintenance of
LESSOR'S standard operations where other operations share common facilities.
(a) Rights not specifically granted the LESSEE by this Lease arc hereby reserved to the LESSOR.
(b) LESSEE agrees to pay all sales tax imposed on the rental of the Demised Premises where
applicable under law,
(c) LESSEE agrees to pay all intangible personal property taxes that may be imposed due to the
creation, by this Lease, ofa leasehold interest in the Demised Premises or LESSEE'S possession
of said leasehold interest in the Demised Premises.
ARTICLE 16. Environmental Concerns
LESSEE represents, warrants and agrees to indemnify, reimburse, defend and hold hannless
LESSOR, from and against al\ costs (including attorneys fees) asserted against, imposed on or incurred
by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state,
local or common law relating to pollution or protection of the environment.
ARTICLE 17. Radon Gas
In compliance with Section 404.056, Florida Stalutes, all parties are hereby made aware of the
following:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to. persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your County Public Health
Department.
ARTICLE 18. Extent of Liens
All persons to whom these presents may come are put upon notice of the fact that the interest of
the LESSOR in the Demised Premises shall not be subject to liens for improvements made by the
LESSEE, and liens for improvements made by the LESSEE are specifically prohibited from attaching to
or becoming a lien on the interest of the LESSOR in the Demised Premises or any part of either. This
notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes.
ARTICLE 19. Effective Date
This Lease shall become effective on January I, 2009.
ARTICLE 20. Govemin~ Law
This Lease shall be governed and construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals.
AS TO THE LESSOR:
DATED:
A TrEST:
DWIGHT E. BROCK. Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
, Deputy Clerk
BY:
TOM HENNING, Chainnan
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AS TO LESSEE:
DATED:
WITNESS (signature)
(print name)
WITNESS (signature)
(print name)
WITNESS (signature)
(print name)
WITNESS (signature)
(print name)
Approved as to form and legal sufficiency:
EXHlpl~ ...E-
Page ...L-
The Islands Marina, LLC and
Port of the Island Properties, LLC
BY:
JAMES SHUCART
BY:
CHRISTOPHER SHUCART
Jennifer A. Belpedio, Assistant County Attorney
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