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Agenda 12/09/2014 Item #16B3 12/9/2014 16.B.3. EXECUTIVE SUMMARY Recommendation that the Community Redevelopment Agency (CRA) approve First Amendment to Lease with Caliber Bodyworks of Florida, Inc., successors in interest by assignment from Auto Pride Collision Centers, Inc., a Florida Corporation, continuing occupancy of CRA owned property located at 1911 E. Tamiami Trail in the Gateway Mini- Triangle until July 2015 with the same terms as the original Lease. OBJECTIVE: To allow a tenant to continue to occupy CRA owned property until July 1, 2015 so that the property may transition to new ownership. CONSIDERATION: On November 11, 2014, the Board approved an Agreement for Sale and Purchase from the Redevelopment of Gateway Mini-Triangle to transfer ownership of six commercial properties. Four of the properties have tenants and existing leases. The lease for one of the tenants, Caliber Bodyworks of Florida, Inc., is scheduled to expire on December 31, 2014. Caliber Bodyworks of Florida, Inc. is a successor in interest to Auto Pride Collision Centers, Inc. The assignment of the Lease occurred on September 19, 2014. Auto Pride Collision Center, Inc., has a business relationship with Caliber Bodyworks of Florida, Inc., and has contracted to purchase a new location. The extension will provide the time it needs in order to relocate the operations. The extension provides the CRA opportunity to transition ownership of the property while still collecting rent. The tenant has stated they will be able to convert the new location to a collision repair facility and vacate the premises within the extended term of the lease. Accordingly, a First Amendment to Lease provides: 1. The current Extension Term of the Lease as set forth in Section 1.4 (b) is hereby extended to July 1, 2015. 2. LESSEE shall have the option to further extend the term of the Lease through September 30, 2015 by providing written notice to LESSOR by May 31, 2015. Additional extensions may be requested by LESSEE, but may be denied by LESSOR. 3. If LESSEE continues to occupy the Premises after September 30, 2015, or any earlier termination of the Lease, it shall be considered holding over as provided in Section 19 of the Lease. The annual rent is $150,000 or five (5%) percent of the Lessee's gross sales for each successive year, plus sales tax if applicable, minus real estate taxes and assessments, general and special, if any against the Premises. The rent revenue generated from January 1, 2015 to July 1, 2015 is estimated to be $75,000. FISCAL IMPACT: The revenues from the Lease will be utilized to service a portion of the Bayshore/Gateway Triangle CRA debt. The income generated for the six month term is from January 1, 2015 to July 1, 2015 is estimated to be $75,000. Packet Page-1483- 12/9/2014 16.B.3. LEGAL CONSIDERATIONS: The First Amendment to Lease have been reviewed by the contract purchaser, Mr. Fortino, and his attorney, Burt Saunders, and found acceptable. This item has been approved for form and legality and requires a majority vote for Board approval. -JAB GROWTH MANAGEMENT: There is no impact on the County's long-range planning effort. RECOMMENDATION: That the Community Redevelopment Agency (CRA) approves First Amendment to Lease with Caliber Bodyworks of Florida, Inc., successor in interest by assignment from Auto Pride Collision Centers, Inc., a Florida Corporation, continuing occupancy of CRA owned property located at 1911 E. Tamiami Trail in the Gateway Mini- Triangle until July 2015 with the same terms as the original Lease. PREPARED BY: Jean Jourdan, Operations Manager, Bayshore/Gateway Triangle CRA Packet Page -1484- 12/9/2014 16.B.3. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.B.16.B.3. Item Summary: Recommendation that the Community Redevelopment Agency(CRA) approve First Amendment to Lease with Caliber Bodyworks of Florida, Inc., successors in interest by assignment from Auto Pride Collision Centers, Inc., a Florida Corporation, continuing occupancy of CRA owned property located at 1911 E.Tamiami Trail in the Gateway Mini- Triangle until July 2015 with the same terms as the original Lease. Meeting Date: 12/9/2014 Prepared By Name: JourdanJean Title: CRA Operations Manager, County Redevelopment Agency 12/3/2014 12:28:39 PM Submitted by Title: CRA Operations Manager, County Redevelopment Agency Name: JourdanJean 12/3/2014 12:28:40 PM Approved By Name: DowlingMichael Title: Property Management Specialist, Senior, Facilities Management Date: 12/3/2014 1:54:28 PM Name: BelpedioJennifer Title: Assistant County Attorney, CAO General Services Date: 12/3/2014 3:02:41 PM Name: IsacksonMark Title: Director-Corp Financial and Mngmt Svs, Office of Management&Budget Date: 12/3/2014 3:10:26 PM Name: KlatzkowJeff Title: County Attorney, Packet Page-1485- 12/9/2014 16.B.3. Date: 12/3/2014 3:34:46 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 12/3/2014 3:47:28 PM Packet Page-1486- 12/9/2014 16.B.3. FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE entered into this day of , 2014, between COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY (hereinafter referred to as "Lessor", and CALIBER BODYWORKS OF FLORIDA, INC., successor in interest by assignment to AUTO PRIDE COLLISION CENTERS,INC., (hereinafter referred to as "Lessee"). WITNESSETH WHEREAS, on January 1, 2010, the Lessor and Lessee entered into the Lease, attached as Exhibit A; and WHEREAS, on September 19, 2014, Autopride Collision Centers, Inc. granted, transferred and assigned its rights, title and interest in the Lease to Caliber Bodyworks of Florida, Inc.; and WHEREAS, the leased premised are presently under contract for purchase for redevelopment with closing expected to occur no later than May 2015; WHEREAS, the Lease expires on December 31, 2014 and Lessee desires to continue to occupy the premises after closing. NOW THEREFORE, in consideration of the covenants and conditions set forth herein, together with Ten Dollars ($10.00) and other valuable consideration, the Lease is amended as follows: 1. The current Extension Term of the Lease as set forth in Section 1.4 (b) is hereby extended to July 1, 2015. 2. LESSEE shall have the option to further extend the term of the Lease through September 30, 2015 by providing written notice to LESSOR by May 31, 2015. Additional extensions may be requested by LESSEE, but may be denied by LESSOR. 3. If LESSEE continues to occupy the Premises after September 30, 2015, or any earlier termination of the Lease, it shall be considered holding over as provided in Section 19 of the Lease. 4. Except as expressly provided herein, the Lease remains in full force and effect according to the terms and conditions contained therein, and said terms and conditions are applicable hereto except as expressly provided otherwise herein. IN WITNESS WHEREOF, the LESSOR and LESSEE have hereto executed this Extension and First Amendment to Lease the day and year first above written. 1 Packet Page-1487- G�' 12/9/2014 16.B.3. AS TO LESSOR: ATTEST: COLLIER COUNTY COMMUNITY DWIGHT E. BROCK, Clerk REDEVELOPMENT AGENCY By: By: , Deputy Clerk DONNA FIALA, CHAIRMAN AS TO LESSEE: CALIBER BODYWORKS OF FLORIDA, INC. By: Witness (Signature) Gregory M. Nichols Chief Administrative Officer (Print Name) Witness (Signature) (Print Name) Approval for form and legality: Jennifer A. Belpedio Assistant County kl-AS 2 Packet Page-1488- - -- - - - - -------- 12/9/2014 16.B.3. EX Fi If LEASE THIS LEASE (the"Lease") is made as of the 1``day of January, 2010, between Collier County Community Redevelopment Agency, more fully identified in Section 11.11 as LESSOR (the "LESSOR"), and Auto Pride Collision Centers, Inc., a Florida corporation, or its assigns, more fully identified in Section 1.2,as LESSEE(the"LESSEE") Demise. In consideration of the undertakings of the parties contained herein, LESSOR leases to LESSEE, and LESSEE leases from LESSOR, the premises described in Sections 1.3 and 2(the"Premises"),on the following terms and conditions: 1. Basic Lease Provisions: This Section contains or refers to certain basic provisions of this Lease (the "Basic Lease Provisions"), Other Sections of this Lease explain, define and are to be read in conjunction with the Basic Lease Provisions. 1.1 LESSOR:(a) Collier County Community Redevelopment Agency 3301 Tamiarni Trail East Naples,Florida,34112 (b) Make Payments to: Collier County Community Redevelopment Agency 4069 Bayskore Drive Naples,Florida 34112 1.2 LESSEE: Auto Pride Collision Centers,Inc. 5626 Enterprise Pkwy. Fort Myers,Fl 33901 1.3 Premises: (See Section 2): (a) Address: 1911 E.Tamiami Trail Naples,Florida 34112 (b) A legal description of the real property is attached hereto as Exhibit «A„ (c) Use: Automobile repair and body shop/together with any other zoning approved use (d) LESSEE'S Proportionate Share of Premises: 100% 1.4 Term; (a) Primary Term (See Section 3_1): 3 years, from January 1, 2010 to December 31,2012 1 Packet Page -1489- 12/9/2014 16.B.3. (b) Option to Extend (See Section 32): i. Extension Term: One (1) Two (2) year renewal option from January 1, 2013 to December 31,2014. ii. Exercise Date(s): Six (6)months prior to the expiration of the Primary Term (as hereinafter defined), as follows: On or before July 1, 2012 for the extension. 1.5 Rent: (a) Primary Term (See Section 4): During the first year of the Term of the Lease the annual rent shall be $128,084.00 payable in twelve (12) equal monthly installments of$10,673.66, plus sales tax, if applicable. During each successive Term of the Lease the annual rent, payable in twelve (12) equal monthly installments, shall be the greater of $150,000.00 per year or five(5%)percent of LESSEE'S gross sales for the preceding twelve(12)month period as described in Section 4 below, plus sales tax if applicable, minus real estate taxes and assessments, general and special,if any,against the Premises. (b) Extension Term (See Section 4): The annual rent, payable in twelve (12) equal monthly installments, shall be the greater of$150,000.00 or five(5%)percent of LESSEE'S gross sales for the preceding twelve(12) month period as described in Section 4 below, plus sales tax, if applicable, minus real estate taxes and assessments, general and special, if any, against the Premises. 1.6 Rent Commencement Date (See Section 4): January 1,2010 1.7 LESSEE Possession Date: January 1,2010 1.8 Insurance(See Section 11.1): Casualty Insurance: (a) Amount: To be determined by LESSOR in it sole discretion with no obligation to insure the premises. (b) Insuring Party: LESSOR Liability Insurance: (c) Amount:Bodily Injury: $2,000,000, Property Damage: $250,000 2 Packet Page -1490- -- _ --_ 12/9/2014 16.8.3. 2. Premises: During the Term of this Lease (as defined in Section 33), the Premises shall consist of the exclusive use of the LESSOR'S buildings and adjoining exterior loading, parking and drive areas. 3, Term: Primary Term: The primary term of this Lease shall be for the period specified in Section 1.44 (the "Primary Term") unless this Lease shall be earlier terminated as hereinafter provided. Extension Terms: LESSEE shall have the right and option to extend the Primary Term for extension term as set forth in Section 1,4 (the "Extension Terms"), upon the same terms and conditions of this Lease, except as otherwise provided in Section 1_5. LESSEE shall deliver to LESSOR notice of its election so to extend the Primary Term on or before the respective Exercise Date set forth in Section L4. Failure to timely exercise shall cause a waiver of LESSEE'S right to Extend the Term of the Lease,except as provided for herein. The parties acknowledge that LESSOR intends to sell the real property to a third party for redevelopment purposes. In order to facilitate LESSOR'S goal, LESSEE shall on or before thirty (30) days following the commencement of the Extension Term meet with LESSOR to determine its progress toward the redevelopment goal and the parties agree as follows: (a) In the event LESSOR has determined that a sale of the real property is likely to occur within the foreseeable future and LESSOR desires the LESSEE to vacate the real property on or before the end of the Extension Term then LESSOR shall provide this information to LESSEE in writing and LESSEE shall immediately commence to locate a new premises from - which to conduct its business in Collier County, Florida. LESSEE shall be required to vacate the leased premises on the termination date of the Extension Term but, in the event LESSEE locates alternate premises before the termination date of the Extension Term and LESSEE is prepared to move to such alternate premises then LESSEE may proceed to vacate the premises prior to the Termination Date of the Extension Term and LESSEE shall have no liability for rents due and payable after LESSEE vacates the property and LESSEE shall receive a refund of any prepaid rent. (b) In the event LESSOR has been unable to determine that a sale of the real property is likely to occur within the foreseeable future and LESSOR desires the LESSEE to remain as a LESSEE then LESSOR shall provide this information to LESSEE in writing and LESSOR and LESSEE shall sign an amendment to this Lease granting LESSEE an additional Extension Term for a period of two(2) years subject to the terms and conditions of this lease. The terms and conditions of this Paragraph 3 shall apply to any additional Extension Term of this Lease. 3 Packet Page -1491- 12/9/2014 16.B.3. Tenn of this Lease: The Primary Term and the Extension Term sometimes shall be referred to collectively hereinafter as the"Term of this Lease". 4. Rent: Manner of Payment: During the first year of the Term of this Lease, LESSEE shall pay annual rent in the amount $128,084.00, payable in monthly installments of $10,673.66.00 per month,plus applicable sales tax,if any.On or before December 1, during each year of the Term of this Lease, LESSEE shall deliver to LESSOR copies of its sales tax returns for the preceding twelve(12) month period prior to December 1 (sales tax returns are due on the 20th day of the month following the month of sale and therefore returns will be provided for the period November through October for the preceding the twelve (12) month period). A copy of LESSEE'S sales tax return for the month of August,2009, is attached as Exhibit B. Commencing on January 1, 2011, and on January 1 of each subsequent year during the Term of the Lease the annual rent shall be adjusted to the greater of$150,000 per year or five(5%)percent of the gross sales for the preceding twelve (12) month period as calculated from the monthly sales tax reports, plus applicable sales tax, if any, payable in twelve (12) equal monthly installments, minus real estate taxes and assessments, general and special, if any, against the Premises. As an example if the gross sales of LESSEE for the period November 1, 2009, through October 31, 2010, are $4,000,000.00 then commencing January 1, 2011, the annual rent payable by LESSEE shall be$200,000.00,payable in monthly installments of$16,666.67,plus applicable sales tax, if any. Each monthly installment of Rent shall be due and payable on the 1st day of the month and mailed to LESSOR at the address set forth in Section 1.1 (b), or at such other address as LESSOR may designate in writing at any time or from time to time, in monthly installments as set forth in Section 1_5 (the "Rent"). Such monthly installments of Rent shall be payable in advance on or before the Rent Commencement Date as set forth in Section 1.6 (the "Rent Commencement Date")and on or before the first business day of each calendar month thereafter. Rent for partial months at the inception of the termination of the Lease shall be prorated. In the event that LESSEE, at its sole cost and expense, expands the facility, the Rent, as applicable hereunder from time to time, shall not be increased because of such expansion. Upon execution of this Lease,LESSEE shall prepay one month's rent which shall be applied to the first month of the Lease and shall pay all additional rent as herein defined. 5. Real Estate Taxes and Assessments: Payment: During the Term of this Lease, as identified in Section 1_4, LESSEE shall pay within (30) days of receipt, LESSEE'S Proportionate Share as identified in Section 1.3(d) of all real estate taxes and assessments, general and special, if any, against the Premises. ("Taxes and Assessments") 6. Utilities: During the Term of this Lease, LESSEE shall pay for all utility services consumed by LESSEE upon the Premises, including without limitation gas and electricity, sanitary and storm sewer, water and telephone services. To the extent that any utility services supplied to the Premises are billed directly to LESSOR, LESSEE shall reimburse LESSOR, within thirty (30) days after LESSOR'S delivery to LESSEE of an invoice therefore, for that 4 Packet Page-1492- 12/9/2014 16.B.3. portion of such utility services which is attributed directly to LESSEE'S use of the particular utility service. IF LESSOR and LESSEE fail to agree as to the appropriate method for determining such portion, then LESSOR, at its sole cost and expense, shall effect the separate metering of all utility services supplied to the Premises. 7. Possession of Premises: Delivery of Possession: Condition: LESSOR shall deliver possession of the Premises to LESSEE on the LESSEE Possession Date. LESSEE accepts the Premises in an "as-is" condition without any obligation of LESSOR to repair any defects,or make any repairs,alternations or improvements. 8. LESSEE Improvements: Except as to structural improvements, demolition, substantial alterations effecting structural design, exposure of the interior during improvements, and substantial site plan changes effecting landscaping for which LESSOR'S or LESSOR'S mortgagee written consent is required, LESSEE, at its sole cost and expense,shall have the right but shall not be obligated prior to and during the Term of this Lease to improve, alter and renovate the Premises in any manner which LESSEE deems necessary or desirable to make the same fit and suitable for the conduct of its business operations. LESSEE shall perform all work described in this Section subject to the standards set forth in Section 17.1(b). Unless otherwise agreed in writing by the parties and subject to Section 9 below, any improvements, alterations and renovations to the Premises by LESSEE pursuant to this Section shall be promptly restored by the LESSEE to the condition existing immediately prior to LESSEE'S possession, subject to normal wear and tear, damage by fire, explosion or other casualty, upon the expiration or earlier termination of this Lease. 9. Trade Fixtures;Personal Property: LESSEE, at its sole cost and expense,shall have the right, without LESSOR'S consent, but shall not be obligated during the Term of this Lease to install, use, replace, substitute and remove its trade fixtures and personal property such as, without limitation, telephone, teletype and other equipment, machinery, conveyor systems, racking,task lights, office furniture, and office trailers, Upon the expiration of the Term of this Lease or the earlier termination of this Lease, LESSEE shall have the right to remove its trade fixtures and personal property from the Premises, 10. Maintenance and Repairs by LESSEE: LESSEE, as its sole coast and expense, during the Term of this Lease shall keep the Premises in a clean and orderly condition and, shall perform: (i) any maintenance and repairs to the Premises occasioned by the negligence or misconduct of LESSEE or its invitees and licensees, and (ii)maintenance and replacement of the landscaping, all required maintenance, replacement and repairs to windows, pedestrian and overhead doors and all routine maintenance, repair and replacement of the mechanical and utility systems, including, but not limited to; heating, ventilating, air conditioning, Iighting, electrical, plumbing, gas, water supply, sanitary systems, and communications lines (sometimes collectively referred to herein as the ("Mechanical and Utility Systems"), including without limitation, any necessary changing of fan belts, light bulbs, washers, gaskets, replacing of window glass and the cleaning of and necessary adjustments to the furnace system and (iii) all other maintenance,replacement and repairs to the structure,roof and the exterior of the Premises in which the interior portions of the Premises shall be located, including, without limitation, the roof and roof membranes, exterior walls, the interior wall separating the office area from the 5 Packet Page -1493- 12/9/2014 16.B.3. body shop area, floors, foundations, supports, skylights and roof vents, drains, and downspouts, the substructure, all periodic repaving and any patching and pothole maintenance of the yard, parking, drive and other hard-surfaced areas comprising a portion of the Premises, together with curbs and walkways. If LESSEE fails to perform its maintenance and repair obligations within fifteen (15) days after LESSOR'S delivery to LESSEE of notice of the need for any such maintenance and repairs,then LESSOR shall have the right,but not the obligation, upon delivery of three (3) business days' notice to LESSEE, to perform all of part of such maintenance and repairs,at the sole cost and expense of LESSEE, and LESSEE shall reimburse LESSOR for such costs and expenses within thirty (30) days after LESSOR's delivery to LESSEE of an invoice therefore. 11. Insurance: 11.1 Casualty Insurance: At all times during the Term of this Lease, the insuring party named in Section 1.8(b), at its sole cost and expense, may, in its sole discretion, cause the Premises to be fully and adequately insured with a customary policy of fire and extended coverage insurance (including flooding, vandalism, damage from sink holes (if available), malicious mischief and special extended perils or all risk) in an amount not less than the full replacement cost of the Premises, with a standard inflation guard endorsement or, in the event the parties have agreed upon a fixed amount of insurance, with a fixed amount endorsement, 11.2 Public Liability Insurance: At all times during the Term of this Lease, the LESSEE shall maintain in full force and effect a public liability insurance policy for the Premises in amounts not less than those set forth in Section 1.8 (c). Such insurance policy shall name the LESSOR as an additional insured, as its interest may appear with respect to the Premises. 11.3 Certificates: Any insuring party shall, upon LESSEE Possession Date, provide an insured party with adequate evidence of the continued existence of applicable insurance coverage by certificate(s) of insurance. Each such certificate shall contain an agreement by the insurer that such insurance coverage shall not be modified or canceled without delivery of at least thirty(30)days written notice to the insured party. 11.4 Mutual Waiver of Subrogation: Nothing in this Lease shall be construed so as to authorized or permit any insurer of LESSOR or LESSEE to be subrogated to any right of LESSOR or LESSEE against the other party arising under this Lease. LESSOR and LESSEE each hereby release the other to the extent of any perils to be insured against under Section 11.1 of this Lease only, whether or not such insurance has actually been secured, and to the extent of insurance coverage for any loss or damage caused by any such casualty, even if such incidents shall be brought about by the fault or negligence of either party. All insurance policies to be provided under Section 11.1 by either LESSOR or LESSEE shall contain a provision that they are not invalidated by the foregoing waiver. 12. Damages and Termination 12.1 Damage and Restoration: In the event that the Premises shall be damaged or destroyed by fire, explosion or other casualty, or by any risk require to be insured against 6 Packet Page -1494- 12/9/2014 16.B.3. pursuant to Section 11.1 or at law, LESSEE promptly shall deliver to LESSOR notice thereof. Unless terminated pursuant to Section 12.2, this Lease shall remain in full force and effect, and LESSEE,at its sole cost and expense,but with the right to use insurance proceeds, if any, to the extent of the LESSOR'S interest therein and to the extent not to exceed the amount of actual proceeds, may exercise good faith and diligent efforts promptly to repair the damage or destruction and restore the Premises to substantially that condition existing immediately prior to such damage or destruction. Until the completion of LESSEE'S repair and restoration pursuant to this Section, LESSEE'S obligation to pay Rent and other amounts payable by LESSEE hereunder shall be abated as of the date of the damage or destruction in proportion to the extent that the value of the premises for the use and occupancy thereof by LESSEE for the conduct of its business operations shall be reduced, as the parties shall agree, but in the absence of such agreement, as determined by the dispute procedure under Section 32 hereof. 12.2 Rights of Termination: LESSOR'S and LESSEE'S respective rights to terminate this Lease upon the occurrence of certain damage or destruction shall be governed as follows: (a) If the Premises shall be damaged or destroyed to the extent of more than ten percent (10%) of the full replacement cost thereof, then either LESSOR or LESSEE may elect to terminate this Lease by delivery of notice to the other within thirty(30) days after the date LESSOR or LESSEE first learned of such damage or destruction;or (b) If repair and restoration of any such damage or destruction cannot reasonably be completed within one hundred twenty (120) days after the date of notice to the LESSOR of the damage or destruction then LESSEE may elect to terminate this Lease by delivery of notice to LESSOR within thirty (30) days after the date of such damage or destruction; and (c) Upon delivery of any notice pursuant to Section 12.2 (a) or 12.2 (b), and the payment or assignment to LESSOR of insurance proceeds to the extent of LESSOR'S interest therein, this Lease shall terminate as of the date of the damage or destruction unless otherwise provided in such notice, and LESSEE shall have no further liabilities or obligations hereunder other than to pay Rent accrued hereunder as of the date of such termination, 13. Eminent Domain: 13.1 Repair and Restoration: In the event that all or any portion of the Premises shall be taken or threatened to be taken under the power of eminent domain or settlement in lieu thereof for any public or quasi-public use, LESSOR promptly shall deliver to LESSEE notice thereof. Unless terminated pursuant to Section 13.2, this Lease shall remain in full force and effect, and LESSOR, as its sole cost and expense, shall exercise good faith and diligent efforts promptly to repair the damage and restore the Promises so as to constitute the remaining portion thereof a complete architectural unit, EXCEPT as provided for in Section 12.1 and to the extent such damage is covered by insurance. If LESSEE remains in occupancy of the Premises, LESSOR shall exercise such repair and restoration efforts in a manner so as not to interfere unreasonably or materially with the use and occupancy of the Premises by LESSEE 7 Packet Page -1495- 12/9/2014 16.B.3. for the conduct of its business operations. Until the completion of LESSOR'S repair and restoration pursuant to this Section, LESSEE'S obligation to pay Rent and other amounts payable by LESSEE hereunder shall be abated as of the effective date of taking of the Premises or portion thereof by the public or quasi-public body in proportion to the extent that the value of the Premises for the use and occupancy thereof by LESSEE for the conduct of its business operations shall be reduced, as the parties shall agree, but in the absence of such agreement, as determined by arbitration under Section 32 hereof. 13.2 Rights of Termination: LESSEE shall have the right to terminate this Lease upon the Occurrence of a taking or a threatened taking under the power of eminent domain or settlement in lieu thereof if, as a result thereof, the Premises no longer shall be fit and suitable for the use and occupancy thereof by LESSEE for the conduct of its business operations by reason of a material reduction of more than thirty-five percent (35%) of the Premises, in which event LESSEE may elect to terminate the Lease be delivery of notice to LESSOR within thirty (30)days of the date that LESSEE receives written notice of the date on which possession of the Premises or portion thereof shall be required by the public or quasi-public body. If LESSEE gives LESSOR notice that LESSEE elects to terminate this Lease, this Lease shall terminate as of the date on which such possession shall be required by the public or quasi-public body, and LESSEE shall have no further liabilities or obligations hereunder other than to pay Rent accrued hereunder as of such date of termination. 14. Default_,Remedies: 14.1 LESSEE'S Default: The following events shall be deemed to be events of default by LESSEE under this Lease: (a) LESSEE shall fail to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to LESSOR required herein when due, and such failure shall continue for a period of fifteen (15) days from the date such payment was due following written notice thereof by LESSOR to LESSEE. (h) LESSEE shall become insolvent, or shall make a transfer in fraud of creditors,or shall make an assignment for the benefit of creditors. (c) LESSEE shall file a petition under any section of chapter of the National Bankruptcy Code, as amended, or under any similar law or statute of the United States of any state thereof, or an order for relief shall be entered against LESSEE in any proceedings filed against LESSEE thereunder. (d) A receiver or trustee shall be appointed for all or substantially all of the assets of LESSEE. (e) LESSEE shall fail to discharge any lien placed upon the Premises in violation of Section 33. 8 Packet Page-1496- 12/9/2014 16.B.3. (f) LESSEE shall fail to comply with any term, provision or covenant of this Lease (other than the foregoing in this Section 14) and shall not cure such failure within thirty (30)days after written notice thereof to LESSEE. 14.2 LESSOR'S Remedies: (a) Upon the occurrence of any such events of default described in Section 14.1 hereof, LESSOR shall have the option to pursue any one or more of the following remedies or any other remedy available at law or equity after three(3)days written notice to LESSEE: (1) Terminate this Lease, in which event LESSEE shall immediately surrender the Premises to LESSOR and if LESSEE fails so to do, LESSOR may without prejudice to any other remedy which it may have for possession or arrearage in rent, enter upon and take possession of the Premises and expel or remove LESSEE and any other person who may be occupying such Premises or any party thereof without being liable for prosecution of any claim for damages therefore. (2) Enter upon and take possession of Premises and expel or remove LESSEE and any other person who may be occupying such Premises or any part hereof without being liable for prosecution or any claim for damages therefore, and relet the Premises and receive the rent therefore, all without terminating the Lease. (3) Alter all locks and other security devices at the Premises without terminating the Lease. (4) Relet the Premises,or any part of them,for the account of LESSEE for any portion or all of the remainder of the term to any LESSEE. LESSOR shall credit the rent received on the balance due from LESSEE, first to any expenses incurred because of the repossession and re-renting, including broker's commissions,next to interest, and the balance to the principal amount of the rent. LESSOR may repair or restore the Premises as provided for herein for reletting,the cost of same to be charged to LESSEE. However, in no event, shall the LESSEE be charged for improvements specific to a new LESSEE'S occupancy. (5) Collect each installment of rent or other sum due under this Lease as it becomes due or await the end of the term of this Lease and then collect all rent or other sums due hereunder. (b) In the event LESSEE fails to pay any installment of rent hereunder within fifteen (15) days after notice that such installment is past due, LESSEE shall pay to LESSOR a late charge in an amount equal to that charge that is charged to LESSOR for its failure to make its payment on its Mortgage(s). In any event, said late charge shall not exceed five percent (5%) of any late installment under this Lease. (c) All remedies of LESSOR are cumulative to each other and to any other remedies given by law or in equity. All rights of LESSOR on LESSEE'S default apply to an extension of this Lease. By making a payment for LESSEE or from any security deposit, LESSOR does not waive LESSEE'S default or any right LESSOR has because of the default. 9 Packet Page -1497- 12/9/2014 16.B.3. 15. LESSOR'S Default and LESSEE'S Remedies: LESSOR shall be in default of this Lease if LESSOR fails to perform any term, condition, covenant or obligation.of this Lease on the part of LESSOR to be performed within thirty(30) days after the date on which LESSOR receives from LESSEE notice by certified or registered mail specifically describing such failure. LESSEE may, after notice and time to cure, cure such default by LESSOR on behalf of, and at the sole cost and expense of, LESSOR, including a supervision charge of twenty percent (20%) of all costs and expenses incurred by LESSEE. LESSOR shall reimburse LESSEE for its costs and expenses in connection with any such cure within thirty(30) days after LESSEE'S delivery to LESSOR of an invoice therefore, failing which LESSEE may offset such costs and expenses against any Rent and other amounts payable by LESSEE hereunder. 16. LESSOR'S Right of Entry: Following reasonable notice to LESSEE, LESSOR may enter upon the Premises as often as LESSOR reasonably may deem necessary for the purposes of performing such maintenance and repairs as LESSOR reasonably may deem necessary or lawfully may be required to perform, inspecting the Premises, offering the Premises for lease (but only during the period which commences six (6) months prior to the expiration of the then existing Primary Term or Extension Term in the event that LESSEE shall not have elected further to extend the Term of this Lease) or offering the Premises for sale. During this period, LESSOR shall have the right to display "For Sale" and "For Lease" signs on the Premises. LESSOR'S right of entry shall be exercised in a manner and during reasonable hours at times such that there shall be no unreasonable or material interference with the use and occupancy of the Premises by LESSEE for the conduct of its business operations. 17. Indemnification: 17.1 LESSEE Indemnification. LESSEE agrees to indemnify and hold LESSOR harmless from and against any and all losses, damages, claims, suits actions, judgments, liabilities and expenses, including without limitation reasonable attorneys' fees (collectively, "Losses"), arising out of, or with respect to: (a) any breach of any warranty or representation or any covenant or agreement of LESSEE, under this Lease; or (b) any injury to, or death of, persons and/or any damage to, or destruction of, property, on or about the Premises and attributable to the negligence or misconduct of LESSEE, or LESSEE'S officers,employees, agents, contractors or invitees, except for any such breach, any injury or death or any damage or destruction arising out of, or with respect to, the negligence or misconduct of LESSOR, or any of LESSOR'S officers, employees, agents, contractors or invitees, or as otherwise specifically provided in this Lease. 18. Transfers and Lease Contingency: 18.1 Assignment and Subletting: LESSEE shall have the right to assign this Lease to any company that may acquire the business operations of LESSEE and may sublet all or any portion of the Premises,without the consent of LESSOR, so long as such sub LESSEE meets county zoning and occupancy requirements. However in no event, absent the written agreement of LESSOR, no assignment of this Lease or subletting of all or any portion of the Premises shall • 10 Packet Page -1498- .__ 12/9/2014 16.B.3. relieve LESSEE of any of the terms, conditions, covenants and obligations of this Lease on the part of LESSEE to be performed. 19. Holding Over: If LESSEE shall continue to occupy the Premises after the expiration of the Term of this Lease or the earlier termination of this Lease, then LESSEE shall be deemed to be occupying the Premises as a LESSEE from month-to-month, subject to the terms and conditions of the Lease; provided, however, that either party shall have the right to terminate such month-to-month tenancy upon delivery of thirty(30) days notice to the other and , the rent shall be one hundred twenty-five percent (125%) of the rent charged in the last full month before expiration of the term of this Lease or earlier termination of the Lease. 20. Quiet Enjoyment: 20.1 LESSOR'S Covenant. LESSOR covenants and agrees that LESSEE shall have the peaceful and quiet possession and enjoyment of the Premises (subject to all mortgages and other matters to which this Lease, is or shall become, subordinate in accordance with the provisions of Section 21) for the conduct of its business operations during the Term of this Lease,without hindrance by LESSOR or any party whatsoever. 20.2 LESSEE'S Option to Terminate: LESSEE may terminate this Lease if LESSOR materially breaches LESSOR'S covenant of quiet possession and enjoyment as set forth in Section 21 subject further to the notice and cure periods and provisions permitted in this Lease. 21. Subordination and Attornment'Estoppel: (a) LESSEE covenants and agrees on the terms and conditions provided in this Section, that this Lease shall be subordinate to any institutional mortgage or deed of trust that now or hereafter shall encumber the Premises, provided that each named mortgagee or beneficiary shall execute and deliver to LESSEE a non-disturbance, attornment and subordination agreement stating (in addition to other reasonable terms, if any) in substance the (i) if LESSEE is not in default hereunder, the right of possession of LESSEE to the Premises shall not be affected or disturbed by any mortgagee in the exercise of any of its rights under a mortgage or the note secured thereby, and any sale of the Premises pursuant to the exercise of any rights and remedies under a mortgage or otherwise shall be made subject to LESSEE'S right of possession to the Premises under this Lease and LESSEE'S Option to Purchase; and (ii) LESSEE shall attorn to any mortgagee or purchase at a foreclosure sale (a "Purchaser") upon acquisition of title to the Premises by a mortgagee or Purchaser and notice to LESSEE therefore, and this Lease shall continue in full force and effect between such mortgagee or Purchaser. Upon LESSEE'S receipt and approval of such non-disturbance/attornment agreement from a mortgagee or beneficiary from time to time, LESSEE covenants and agrees to attorn to such mortgagee or beneficiary upon foreclosure. (b) In the event that estoppel certificates now or hereafter may required by any mortgagee or beneficiary of any mortgage or deed of trust, respectively, encumbering the Premises, LESSEE further covenants and agrees to execute certificates containing the substance 11 Packet Page -1499- 12/9/2014 16.B.3. of the following statements (together with other reasonable terms, if any): (i) that the copy of the Lease attached to the certificate is a true and complete copy of the Lease and there are no amendments, modifications or alterations of the Lease, except as stated; (ii) that the Premises required to be furnished under the Lease have been completed in accordance therewith,the date on which LESSEE accepted possession of such Premises and that LESSEE now occupies the same; (iii) that LESSEE began paying monthly installments of rent under the Lease on a given date and no such installment had been paid more than one month in advance; and (iv) that the Lease is in full force and effect, and, except as noted, there exists, to LESSEE'S knowledge, no defense or offset to enforcement of the Lease by LESSOR, and, to LESSEE'S knowledge, LESSOR is not in default under the Lease. 22. Surrender of Premises: Upon the expiration of the Term of this Lease or the earlier termination of this Lease, LESSEE shall deliver up and surrender the Premises, to LESSOR, in as good order and condition as upon the LESSEE Possession Date, subject to LESSEE'S improvements, alterations and renovations to the Premises, normal wear and tear, damage by fire, explosion or other casualty, repairs and restoration for which LESSEE shall not be responsible hereunder and LESSEE'S removal of its trade fixtures. 23. Notices; Computation of Time: For the purposes of all notices and • communications between the parties,the addresses of LESSOR and LESSEE shall be as follows: LESSOR: At the address shown in Section 1_1 (b). LESSEE: At the address shown in Section L2. Any notices and other communications to be delivered by either party to the other pursuant to this Lease shall be in writing and shall be deemed delivered as follows, except as otherwise specifically provided in this Lease: upon confirmed receipt of such delivery by the party delivering notice or upon confirmed receipt of such delivery by telecopier transmission, overnight courier service of mailing with return receipt. Except as otherwise specifically provided herein, in the computation of any period of time which shall be required or permitted hereunder or under any law for any notice or other communication or for the performance of any term, condition, covenant or obligation, the day from which such period runs shall be excluded and the last day of such period shall be included unless it is a Saturday, Sunday or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a • Saturday, Sunday or legal holiday. • 24. Entire Agreement; Amendments: This Lease contains the entire agreement between the parties, and no promise, representation, warranty, covenant, agreement or understanding not specifically set forth in this Lease shall be binding upon, or inure to the benefit of, either party. This Lease may not be amended, altered, modified or supplemented in any manner except by an instrument in writing duly executed by the parties. 25. Governing Law; Interpretation: This Lease shall be construed and enforced in accordance with the laws of the state of Florida. The fact that this Lease shall have been prepared by the attorney for either LESSOR or LESSEE shall not be used to construe or interpret 12 Packet Page -1500- __ -- -- __ __. _._- --_ _, _ :.,r _ -- ---- 12/9/2014 16.B.3. this Lease for or against either party; the parties intend that the provisions of this Lease shall be given their fair meaning and no court shall construe this Lease more stringently against one party than against the other. 26. Authority; Binding Effect: If LESSOR or LESSEE shall be a corporation,trust or general or limited partnership, each individual,executing this lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of such entity. The provisions of this lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, executors, administrators, personal and legal representatives,successors and assigns. 27. No Waver: The failure of LESSOR or LESSEE to insist upon strict performance of any of the terms, conditions covenants and obligations contained in this Lease shall not be deemed a waiver of any rights or remedies for any subsequent breach or default in the terms, conditions,covenants and obligations herein contained. 28. Signs: LESSEE shall have exclusive sign rights for the Premises, exterior and interior,and shall have the right to erect and display signs on the Premise and such other areas of the Premises as LESSEE reasonably may request, subject only to compliance with applicable laws, ordinances and requirements of the governmental authorities with competent jurisdiction. 29. Section Headings: The Section headings hereof are intended for convenience and reference purposes only and shall not be used to construe or interpret this Lease. 30. Severability: If any provision of this Lease shall be determined by any court to be invalid, illegal or unenforceable to any extent, then the remainder of this Lease shall not be affected, and this Lease shall be construed as if the invalid, illegal or unenforceable provision had never been contained in this Lease. 31. Counterparts; This Lease may be executed in two (2) or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 32. Dispute procedure: In the event of a dispute under this Agreement, the parties shall first use the County's then-current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, said remedy being cumulative with any and all other remedy available to the parties for the enforcement of this Agreement. 33. Mechanic's Liens and LESSEE'S Personal Property Taxes: (a) LESSEE shall have no authority, express or implied,to create or place any lien or encumbrance of any kind or nature whatsoever upon,or in any manner to bind the interest of LESSOR in the Premises or to set off the rentals payable hereunder against any claim in favor of any person dealing with LESSEE, including those who may furnish materials to perform labor for any construction or repairs. LESSEE covenants and agrees that it will pay or cause to be paid 13 Packet Page -1501- - 12/9/2014 16.B.3. all sums legally due and payable by it on account of any labor performed or materials furnished in connection with work performed by LESSEE on the Premises (LESSEE is not responsible or liable for sums which represent an obligation of LESSOR under this Lease) on which any lien is or can be validly and legally asserted against the Premises or the improvements thereon. LESSEE will save and hold LESSOR harmless from any and all loss cost or expenses based on or arising out of asserted claims or liens against the leasehold estate or against the right,title and interest of the LESSOR in the Premises or under the terms of this Lease, if such asserted claims or liens are a result from, through or under LESSEE and in such event, LESSEE agrees to give LESSOR immediate written notice of the placing of any lien or encumbrance against the Premises. (b) LESSEE shall be liable for and promptly pay when due all taxes levied or assessed against personal property, furniture, or fixtures placed by LESSEE in the Premises. If any such taxes for which LESSEE is liable are levied or assessed against LESSOR or LESSOR'S property and if LESSOR elects to pay the same or if the assessed value of LESSOR'S property is increased by inclusion of personal property, furniture or fixtures placed by LESSEE in the Premises, and LESSOR elects to pay the taxes based on such increase, LESSEE shall pay the LESSOR upon demand that part of such taxes. 34. RADON GAS: As required by Section 404.056,Florida Statute,LESSEE is notified 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 unit. 14 Packet Page-1502- - 12 /9/2014 16. EXHIB IT "A" FOLIO#77510240008 Lots 5 through 11, inclusive, of Triangle Lake, according to the map or plat thereof recorded in Plat Book 4,Page 38, of the Public Records of Collier County, Florida,Less and excepting there from that portion thereof previously conveyed to the State of Road Department of the State of Florida by deed of conveyance recorded in Deed Book 16, Pages 163 and 164, of the Public Records of Collier County, Florida. Less the following described parcel: Those portions of Lots 5 and 6, Triangle Lake, a subdivision in Section 11, Township 50 South, Range 25 East, as per plat thereof recorded in Plat Book 4, Page 38, Public Records of Collier County Florida,being described as follows: Commence at the northwest corner of said Lot 6; thence along the west line and southerly extension of said Lot 6, south 00 degrees 33'46" East, 245.26 feet to the northerly existing right of way line of State Road 90 (US 41)(per Section 03010-2116)for a Point of Beginning; thence along said southerly extension and west line North 00 degrees 33'46" West, 24.82 feet to the beginning of a curve concave southwesterly; thence along the arc of said curve the right, having a radius of 11,529.16 feet, a central angle of 00 degrees 47'18.3", an arc of 158.65 feet,the chord for which bears South 53 degrees 53'54" East to the east line of said Lot 5 and the end of said curve; thence along said east line and southerly extension South 37 degrees 59'11" West 20.01 feet to said northerly existing right of way line and the beginning of a curve concave southwesterly; thence along said northerly existing right of way line, the arc of said curve to the left, having a radius of 11,509.16 feet, a central angle of 00 degree 42'45,9", an arc length of 143.17 feet,the chord for which bears North 53 degree 51'48": West to the end of said curve and the Point of beginning, 15 Packet Page -1503- . 12/9/2014 16.B.3. • • IN WITNESS WHEREOF,the parties hereto have set forth their hands and seals. AS TO LESSOR: DATED: I tli(g2 VIC( ATTEST: COLLIER COUNTY COMMUNITY DWIGITT E. BROCK, Clerk REDEVELOPOT AG CV r r\ •. 1. • • .• „.4 BY: ••:•-•L -• -te" at t JIM CKLEtTA,Chairman S 104atifect aft • • AS TO LESSEE: AUTO PRIDE COLLISION CENTERS, INC., D D: BY: ft) 7-7) ■)% JO EPH FORMICA IT'S:President i/VITNarr signatpre , Ft . (print name) C:W{FNESS (signature) Ap: eyed as to form and legal sufficiency: 1 (print name) Jenni"' B.White— Assistant County Attorney .• 16 Packet Page-1504- - _ - — - --- — - - _ -_=== 12/9/2014 16.B.3. "EXHIBIT A" — SITE PLAN DEPICTING THE MULTI—TENANT PROPERTY, THE PREMISES AND TENANT'S EXCLUSIVE AREA AutoPride Leased Premises • !�'y,., 4i)1A).1-`:—..;;;;.• "' 'mgt° ,1,."'". rt._ ;,....:4 ` = :v.....r `=• -.fir; "h.,h• ..t-...i, r _∎rr41r .m. 1 ../..1. 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' !',2',..? ., A . , . ,..,z,:u.z. , de'i' t i . .-7 ter..• \'•;;' 7.1.E � �; h,•. ��- i y, {r!:./ y •v.' -_q, Folio Nu bet:77510240008 1 {C?6. -1,, \•t. ,1.. _ i,.1 :7: - v; Name:C LLIER COUNTY " �t`• ..>.`':l �.- r� d;'�r(....'..': 'i �., ' �'''-'1, COMMUhCTY•,; �, .•K �� ,` SlroalJl 6 Namo:1936 DAVIS BLVD'' `v',^� '-1'"f "' •' ■ 1- 4 Loge!Dos eel elien:TRIANGLE LAKE•:' 4,.t •'' ,=^ 1. — LOTS 5.1 in&TI IAT PORTION OF 3rtsZ .';fj••: �'-`Rr : , 1E'•: •• ' LOTS 5 6 G UCSC IN OIiOER OF :� '-!3 ;1;0(1' ` �'- e'); r TAKING CASC it 04-2112 001' �-` �� ''•! ,.�ttv,. •� :Y 1k - ��,-�, �ype.' •, 1- ) ;-i,'PARCEL oo•if '.ltAriti-,.;. 1 . .- `...' 9.';k ©2004.Golher County Property Appraiser.Were the Clearer(County Properly Approlsur is,ur-ami:tad to providing the moot accurate and up Io•dala reformalon,no warranties expressed or implied ern provided for Iho dole heroin,Its use,or Its inlerprointre t • • http://maps.coll icrappratser.coati/webmaph-napprint.aspx?lit(c--AUtoPricde%20Leased%lo20.,. 10/27/2009 Packet Page -1505-