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Agenda 05/08/2018 Item #16A 105/08/2018 EXECUTIVE SUMMARY Recommendation to enter into a public-private partnership between Collier County and Oakes Farms, Inc., supporting economic development through a joint use parking facility lease on a vacant County-owned property located on the northwest corner of Immokalee and Livingston Roads for employee parking for the Seed to Table Market. OBJECTIVE: To enter into a public-private partnership between Collier County and Oakes Farms, Inc., supporting economic development through a joint use parking facility long-term lease on a vacant County-owned parcel located on the northwest corner of Immokalee and Livingston Roads, that will create an off-site employee parking lot, public transit site, and park-and-ride/rideshare parking lot. CONSIDERATIONS: At the October 24, 2017, Board of County Commissioners (Board) meeting, the owner of Oakes Farms, Inc., and developer of the Seed to Table Market (Oakes Farms), who owns an adjacent property, requested the Board to consider a long-term lease agreement for employee parking with a portion of the parking lot available for Collier Area Transit, park-and-ride, and rideshare opportunities. The County-owned property is located on the northwest corner of Immokalee and Livingston Roads, and has been vacant since its purchase (primarily for road right-of-way) from 1990. The easterly 275 feet of the subject property was required for the construction of Livingston Road (also known at the time as the “North Naples Roadway MSTU / Livingston Road”). The property is also encumbered by a 235-foot- wide Florida Power and Light (FP&L) high voltage transmission easement running in a north-south direction alongside Livingston Road, with little useable property to the west of the FP&L easement. At the time the County purchased the property, the owner asked the County to purchase the entire parcel of land (nearly 19 acres total); and, due to legal and economic considerations, the Board approved the purchase of the entire property. Although there have been inquiries from interested parties about the possibility of purchasing the lot over the intervening years, the existence of the FP&L transmission easement, and development restrictions associated with this easement, have made the development of this property impracticable for potential buyers. Following the sale, some of the purchase price was recuperated by selling a small portion of the property to FP&L for the expansion of its substation on the adjacent property. In 1992, the Collier County Water-Sewer District purchased a small portion of the property for the installation of a water repump station. Since that time, the remainder of the property has remained unused. The Board instructed the County Manager to work with the owner of Oakes Farms to bring an Economic Development Agreement and Ground Lease to a future Board meeting for consideration. If approved, the Ground Lease is contingent upon the Oakes Farms assuming the full responsibility and risk for obtaining compliance with zoning codes, obtaining approvals from FP&L, adhering to all building and development permit requirements, and funding all costs associated with site development. A portion of the property will remain undeveloped and will be available for future needs of the Collier County Water -Sewer District. As the County continues to grow, redevelopment projects and infill projects will most likely seek creative ways to augment parking. Approval to allow Oakes Farms to enter into a public -private partnership for redevelopment and economic expansion will be the first, but probably not the last, to propose these partnerships. Should the Board approve the exploration of this public private partnership, staff will use this Economic Development Agreement and Ground Lease as a template for developing clear standards for future consideration that will demonstrate public benefits through a fair and transparent process. 16.A.1 Packet Pg. 451 05/08/2018 FISCAL IMPACT: There is no fiscal impact associated with this action. GROWTH MANAGEMENT IMPACT: The potential public-private partnership would be contingent upon the owner of Oakes Farms "Seed to Table" market obtaining a Growth Management Plan amendment to allow for the parking facility at the proposed location. LEGAL CONSIDERATIONS: This item has been reviewed by the County attorney, is approved as to form and legality, and requires majority vote for approval. -JAK RECOMMENDATION: To approve an Economic Development Agreement and Ground Lease to develop a parking facility on a vacant County-owned parcel, located on the northwest corner of Immokalee and Livingston Roads, to support economic development by providing additional employee parking for the forthcoming Seed to Table Market which will be located on the northeast corner of Immokalee and Livingston Roads, and to support Collier County public transit, park-and-ride, and rideshare uses. Prepared By: James French, Deputy Department Head, Growth Management Department ATTACHMENT(S) 1. Economic Development Agreement (PDF) 2. Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (PDF) 16.A.1 Packet Pg. 452 05/08/2018 COLLIER COUNTY Board of County Commissioners Item Number: 16.A.1 Doc ID: 5272 Item Summary: Recommendation to enter into a public-private partnership between Collier County and Oakes Farms, Inc., supporting economic development through a joint use parking facility lease on a vacant County-owned property located on the northwest corner of Immokalee and Livingston Roads for employee parking for the Seed to Table Market. Meeting Date: 05/08/2018 Prepared by: Title: Operations Analyst – Growth Management Operations & Regulatory Management Name: Judy Puig 04/16/2018 3:03 PM Submitted by: Title: Division Director - Operations Support – Growth Management Operations & Regulatory Management Name: Kenneth Kovensky 04/16/2018 3:03 PM Approved By: Review: Growth Management Department Judy Puig Level 1 Reviewer Completed 04/16/2018 3:04 PM Facilities Management Toni Mott Additional Reviewer Completed 04/16/2018 3:34 PM Facilities Management Michael Dowling Additional Reviewer Completed 04/16/2018 3:42 PM Public Transit & Neighborhood Enhancement Michelle Arnold Additional Reviewer Completed 04/17/2018 3:54 PM Growth Management Department James French Deputy Department Head Review Completed 04/18/2018 9:47 AM Growth Management Department Thaddeus Cohen Department Head Review Completed 04/18/2018 11:24 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 04/18/2018 1:47 PM Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 04/19/2018 3:25 PM Budget and Management Office Mark Isackson Additional Reviewer Completed 04/20/2018 10:16 AM County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 04/30/2018 8:15 AM Board of County Commissioners MaryJo Brock Meeting Pending 05/08/2018 9:00 AM 16.A.1 Packet Pg. 453 ECONOMIC DEVELOPMENT AGREEMENT This Economic Development Agreement (hereinafter referred to as "Agreement") is entered into this _ day of , 2018, by and between Collier County, a political subdivision of the State of Florida, through its Board of County Commissioners (hereinafter referred to as the "County"), and Oakes Farms, Inc., a Florida corporation (hereinafter referred to as "Employer"). RECITALS: WHEREAS, Collier County enjoys broad Home Rule Powers, which include the authority to enter into agreements to enhance economic development within the County; and WHEREAS, Florida Statute Sec. 125.045 expressly provides that "The goveming body of a county may expend public funds to attract and retain business enterprises, and the use ofpublic funds toward the achievement of such economic development goals constitutes a public purpose. The provisions of this chapter which confer powers and duties on the governing body ofa county, including any powers not specifically prohibited by law which can be exercised by the goveming body of a county, must be liberally construed in order to effectively carry out the purposes ofthis section;" and further that "it constitutes a public purpose to expend public funds for economic development activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to finance or refinance the cost of capital projects for industnal or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the community or the attraction of new businesses to the community;" and WHEREAS, Employer has purchased a long-vacant commercial building formerly utilized as an Albertson's Supermarket located at 4835 Immokalee Road, Naples, Florida, on the east side of Livingston Road; and WHEREAS, Employer is converting this vacant building tnto a facility which will be a multipurpose retail food business, as described in the Business Plan attached hereto as Exhibit A; and Page I 16.A.1.a Packet Pg. 454 Attachment: Economic Development Agreement (5272 : Oakes Farms Parking) WHEREAS, it is anticipated that Employer will be hiring several hundred workers for this facility; and WHEREAS, there is insufficient parking at the facility to handle the employee parking needs; and WHEREAS, Collier County is the owner of a vacant parcel across the street from the facility, identified as Parcel No. 00162960004 on the Property Appraiser's rolls; and WHEREAS, Collier County acquired the vacant parcel in 1990 for purposes ofestablishing Livingston Road, with the remainder of the parcel being largely viewed as surplus property; and WHEREAS, Collier County is presently unaware of single inquiry from anyone since 1990 expressing an interest in purchasing or leasing the remainder ofthe parcel; and WHEREAS, Collier County is willing to lease the remainder of the parcel, located on the west side of Livingston Road, as depicted in Exhibit B, to Employer on the terms and conditions set forth below and in the Lease Agreement attached as Exhibit C, which terms Employer is agreeable to; and WHEREAS, the Board expressly finds that the opening of this facility and development of the project will result in substantial economic benefits to the County, including but not limited to the creation ofhundreds ofjobs and a net increase to the County's tax base. NOW, THEREFORE, in consideration of the foregoing Recitals, and other good and valuable consideration, the receipt and sufficiency ofwhich is hereby mutually acknowledged, the Parties agree as follows: 1. The foregoing Recitals are true and correct and are incorporated by reference herein. 2. Employer will conduct itself in a commercially reasonable manner to obtain all development orders, permits, licenses, and otherwise meet all requirements in order to open and operate the contemplated business. 3. Unless extended in writing for good cause by the County Manager, should Employer fail to open the contanplated business by January 1,2020, this Agreement will be Page 2 16.A.1.a Packet Pg. 455 Attachment: Economic Development Agreement (5272 : Oakes Farms Parking) brought back to the Board of County Commissioners for review and reconsideration, which may include termination. Upon such termination, neither party will have any further obligation to or claim against the other with respect to any of the matters set forth in this Agreement and the Lease. !g!.![atters 5. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. 6. This Agreement constitutes the entire agreement between the parties with respect to the matters set forth herein and supersedes and takes the place of any and all previous representations, undertakings, and agreements between the parties relating to this transaction. This Agreement does not constitute a lien on the property, and cannot be assigned or transferred by Employer without the prior written consent fiom the County. Nothing contained herein shall be deemed or construed to create between or among any ofthe parties anyjoint venture or partnership nor otherwise grant to one another the right, authority or power to bind any other party hereto to any agreement whatsoever. Remainder of Page Left Intentionally Blank Signahrre Page to Follow Page 3 16.A.1.a Packet Pg. 456 Attachment: Economic Development Agreement (5272 : Oakes Farms Parking) IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first above written. Attest: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: Andy Solis, Chairman By: , Deputy Clerk Approved as to form and legality: Jeffrey A. Klatzkow, County Attorney AS TO OAKES FARMS, INC. Signed, sealed and Delivered in the presence of: 6 Printed Name STATE OF FLORIDA CoUNTY oF €oLTJER LJZIZ The foregoing Agreement was acknowledged before me this MDday sfln(stt2018, by FparOo,a N CnrcgS E ., who is personally known to me or has produced Wasproofofidentity. KIBI E LATTIMER MY COMMISSION # GG122296 EXPIRES July 06,2021 By: of Person Taking Acknowledgment INOTARTAL SEAL] Page 4 Signature 16.A.1.a Packet Pg. 457 Attachment: Economic Development Agreement (5272 : Oakes Farms Parking) GROUND LEASE BY AND BETWEEN COLLIER COUNTY AND OAKES FARJUS, INC. This Long-Term Ground Lease (hereinafter referred to as "Ground Lease") is entered into this 73;d aay of fi\ft1A018, by and between Oakes Farms, Inc., a Florida corporation, whose mailing address is 7695 Santa Cruz Court, Naples, FL 34109, hereinafter referred to as "Lessee", and Collier County, a political subdivision ofthe State ofFlorida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 341 12, hereinafter referred to as "Lessor," collectively stated as the "Parties." RECITALS: WHEREAS, Collier County enjoys broad Home Rule Powers, which include the authority to enter into agreements to enhance economic development within the County; and WHEREAS, Florida Statute Sec. 125.045 expressly provides that "The goveming body of a county may expend public funds to atffact and retain business enterprises, and the use ofpublic funds toward the achievement ofsuch economic development goals constitutes a public purpose. The provisions of this chapter which confer powers and duties on the governing body of a county, including any powers not specifically prohibited by law which can be exercised by the goveming body of a county, must be liberally construed in order to effectively carry out the purposes of this section;" and further that "it constitutes a public purpose to expend public funds for economic development activities, including, but not limited to, developing or improving local infrastructure, issuing bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the community or the athaction of new businesses to the community;" and WHEREAS, the Parties this date have entered into an Economic Development Agreement. This Lease and the Parties' Economic Development Agreernent are meant to constitute the Parties' full agreement with respect to the matters stated therein, and each of these two agreements is dependent upon the other; and WHEREAS, it is the Board's finding that it is in the public interest to lease this property to Lessee on the terms and conditions set forth below. WITNESSETH: NOW, THEREFORE, in consideration of the terms and conditions contained herein and in the concomitant Economic Development Agreement between the Parties, the Parties hereby agree as follows: Page I of 12 16.A.1.b Packet Pg. 458 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) l. Conveyance. On the terms and conditions set forth in this Ground Lease, and in consideration ofLessee's performance under this Ground Lease, the Lessor conveys to the Lessee the present possessory interest in the Leased Land described below. 2. Description ofLeased Land. The Leased Land whichis the subject ofthis Ground Lease is set forth and identified in Exhibit "A." hereinafter referred to as the "Leased Land or Premises." 3. Conditions to Conveyance. Lessee warrants and represents examined the title and boundaries of the Leased Land and is accepting Accordingly, this conveyance is subject to all of the following: to Lessor that it the parcel "as has is. " a. Any and all conditions, restrictions, encumbrances, and limitations now recorded against the Leased Land, including but not limited to FPL restrictions; b. Any and all existing or future zoning laws or ordinances; c. Any questions of title and survey that may arise in the future; and d. Lessee's satisfactory performance of all terms and conditions of this Ground Lease. 4. Use of Leased Land. The primary purpose of this Ground Lease is for Lessee to construct and operate an employee parking lot in conjunction with a business as described in the Parties' Economic Development Agreement. Accordingly, Lessee shall utilize the Leased Land as follows: Lessee shall pay all costs to design, construct, and maintain an employee parking lot, which lot shall be subject to approval by Collier County, which approval shall not be unreasonably withheld. Lessee shall notify, in writing, all contractors making tenant improvernents or regular maintenance that Lessor's interest in the property is not subject to any construction liens. The Lessee shall also include language in any construction contract rvhereby the applicable entities acknowledge receipt of such noJien notice and agree that they will not lien the landlord's interest in the property for any tenant rmprovernent. Lessee shall submit all tenant improvement and maintenance contracts to the Lessor for prior review and approval of any tenant improvements or regular rnaintenance, which approval shall not be unreasonably withheld Lessee shall remove, satisfy or bond otf any claims of lien recorded against the Lessor's interests by the Lessee's contractors, and to indemnify, def'end and hold the Lessor's harmless with respect to any such liens. The Lessee shall pay the landlord a liquidated daily f-ee until any lien is satisfactorily removed. The parking lot shall include at least twenty-four spaces for Collier Area TransiUPark and Ride vehicles. Accommodations shall be made by Lessee to allow for collier Area Transit Buses to enter and exit the parking lot. Lessee shall develop and construct a county approved and properly permitted pedestrian sidewalk from the Southem facing portion of the parking lot, along piper Boulevard to the existing pedestrian cross-walk located at Livingston Road and Immokalee Road. Page 2 of 12 16.A.1.b Packet Pg. 459 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) o Lessee shall construct and maintain a 6ft interior perimeter fence or wall that will surround the parking lot areas with appropriate openings or gate access to allow for vehicle ingress and egress to the parking lot, pedestrian access to shepherd anyone using the parking facility to utilize the existing cross-walk at the intersection of Immokalee Road and Livingston Road, and any other required access for Collier County or FPL to neighboring properties, rights-of-ways, or easements. o Lessee shall develop and construct an enhanced type "D" landscape buffer facing Livingston Road with a double hedgerow 6ft in height, no less than 5ft in height at planting and 6ft in height established within one year of planting, adjacent to the entire perimeter fence. . The parking lot may not be used by customers of the business serr,uiced by the lot. r Lessee shall be solely responsible for acquiring all required permits and FPL agreements to utilize the Leased Land. o Parking lot attendant(s) must be on site during store operating hours to prevent employees/pedestrians from crossing anywhere from site to store, across Livingston Road, except from the designated and properly marked crosswalk located at Livingston Road and Immokalee Road. o The site shall be regularly maintained, may not be used for truck unloading or parking (delivery, tractor-trailer, offsite storage, etc.) or overnight parking, and will be regularly monitored for security by the Lessee. 5. Lessee's Obliqation to Build. Lessee shall design, permit and construct in compliance with all govemmental regulations, at its sole cost and expense, a parking lot and attendant facilities to be solely utilized for the uses descnbed above. The plans, specifications, and design for the Lessee's improvements to be constructed on the Leased Land are subject to reasonable approval by Lessor. Lessor shall have thirty (3 0) days after receipt of any submittal by Lessee to revisw Lessee's submittals and provide a written response as to whether the submittal is approved as submitted, not approved as submitted, or Lessor may provide Lessee with requested changes. Ifthe submittal is not approved or ifLessor requests changes, Lessee shall submit revised plans that will meet with Lessor's approval or incorporate the requested changes into the plans. If Lessee determines not to revise its plans, then Lessee may terminate this Ground Lease. Lessee may make nonmaterial changes to the approved plans from time to time to accommodate site issues or operating changes to Lessee's use of the Leased Land. Material changes from the approved plans will require Lessor's written approval, which approval shall not be unreasonably withheld. All plans shall conform with Collier County standards. Construction must commence no later than two years from the date ofthis Ground Lease. In the event Lessee does not commence construction within such period, then the Lessor shall have the right to terminate this Lease, and neither party shall have any further obligations to the other party. Upon commencement of construction, Lessee shall diligently pursue said construction to completion and complete said construction on or before twenty-four (24) months from commencement, subject to delays beyond the control ofthe Lessee. Lessee shall be solely responsible for the costs of repairing any damage to Lessor's roads, water and sewer facilities or other infiastructure located within or outside the Leased Land resulting from construction or use by Lessee, its agents, officers or employees. Lessee must demonstrate to Lessor that it has sufficient funds necessary to complete any proposed project, and Lessor may require, as part of its approval, the posting of a construction bond or like secunty to assure completion of the proposed project. Page 3 of 12 16.A.1.b Packet Pg. 460 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) The proposed uses for the Leased Land will require an amendment to the Collier County Growth Management Plan ("GMP'), a rezone of the Planned Unit Development ("PUD"), site development plan approval ('SDP'), South Florida Water Management District permit and other federal, state and local permits (hereinafter collectively referred to as ("Governmental Approvals"). Lessee will apply for the necessary Govemmental Approvals at its sole expense. Lessor agrees to execute all applications to Govemmental Approvals as the owner of the Leased Land. 6. Term of Ground Lease. The term of this Ground Lease shall commence on the date first above written, and unless terminated earlier by the Parties, shall terminate on the 20-year anniversary date ofthis Ground Lease. Unless either party gives the other party at least one year's notice in advance of the renewal term, the term shall automatically renew for two additional periods offive years. IfLessee holds over after the expiration ofthe lease term, such tenancy shall be from month to month under all of the terms, covenants, and conditions of this Ground Lease subject, however, to Lessor's right to seek legal relief to eject Lessee from the Premises as a holdover. 7. Rent. Throughout the term of this agreement, including any renewal term, the Lessee shall pay to Lessor the sum of $1,000.00 per annum, payable on the commencement date of this Lease, as well as the anniversary date each year thereafter. 8. Net Lease. This is a fully net lease, with Lessee responsible for all costs, fees, and charges concerning the Leased Land. Accordingly, Lessee shall promptly pay when due and prior to any delinquency all costs, fees, taxes, trash removal services, assessments, utility charges, impact fees and obligations of any kind that relate to the Leased Land. Lessee will indemnify and hold Lessor harmless from any and all claims, costs, and obligations arising lrom Lessee's use of the Premises. In case any action or proceeding is brciught against Lessor by reason ofLessee's use of the Premises, Lessee shall pay all costs, attomeys' fees, expenses and liabilities resulting therelrom and shall defend such action or proceeding if Lessor shall so request, at Lessee's expense, by counsel reasonably satisfactory to Lessor. It is specifically agreed, however, that Lessor may at its own cost and expense participate in the legal defense of such claim, with legal counsel of its choosing. 9. Lessee's Liens and Mortgaqes. Lessee shall not in any way encumber the Premises, and shall promptly remove any and all liens placed against the Premises. All persons to whom these presents may come are put upon notice of the fact that the interest of the Lessor in the Premises shall not be subj ect to liens for improvements made by the Lessee and liens for improvements made by the Lessee are specifically prohibited fiom attaching to or becoming a lien on the interest of the Lessor in the Leased Land or any part ofeither. This notice is given pursuant to the provisions ofand in compliance with Section 713.10, Florida Statutes. 10. Requirements. Lessee, throughout the term of this Lease, at its own cost, and without any expense to the Lessor, shall keep and maintain the Leased Land, including any improvements thereon, in good, sanitary and neat order, condition and repair, and shall abide with all lawful requirernents. If the Premises are not in such compliance in the reasonable opinion of Lessor, Lessee will be so advised in wnting. If corrective action is not begun within thirty (30) days of the receipt of such Page 4 of 12 16.A.1.b Packet Pg. 461 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) notice and prosecuted diligently until corrective action is completed, Lessor may cause the same to be corrected, and Lessee shall promptly reimburse Lessor for the expenses incurred by Lessor, together with a 5% administrative fee. 1 1 . Ouiet Enioyment. Lessee shall be entitled to quiet enjoyment so long as Lessee has not defaulted on any of the terms of this Ground Lease. Accordingly, Lessee shall have the exclusive right to use the Premises during the term of this Lease. 12. Condernnation. Lessor may terminate this Lease as part ofa condemnation project brought by the Federal or State government. Lessor will use its best efforts to mitigate any damage caused to Lessee as a result of such termination; however, in no event will Lessor be liable to Lessee for any compensation as a result of such termination. 13. Access to Premises. Lessor, its duly authorized agents, contractors, representatives, and employees, shall have the right after reasonable oral notice to Lessee, to enter into and upon the Prernises during normal business hours, or such other times with the consent of Lessee, to inspect the Premises, verifu compliance with the terms of this Ground Lease, or make any required repairs not being timely completed by Lessee. 14. Termination and Surrender. Unless otherwise mutually agreed by the Parties, within thirty (30) days after termination of the lease term, Lessee shall redeliver possession of the Premises to Lessor in good condition and repair. Lessee shall have the right at any time during Lessee's occupancy of the Prernises to remove any of its personal property, equipment, and signs provided, however, at the termination of this Ground Lease, Lessor shall have the option ofeither requiring Lessee to demolish and remove all improvements made by Lessee to the Leased Land upon Lessee's vacation thereof, or to require Lessee to retain said improvements with fixtures on the Leased Land which improvements and fixtures will become the property of the Lessor upon Lessee's vacation of the Premises. 15. Assisnment. This Cround Lease is personal to Lessee. Accordingly, Lessee may not assign this Ground Lease or sublet any portion of the Leased Land without the express prior written consent of the Lessor, which consent may be withheld in Lessor's sole discretion. Any purported assignment or sublet without the express written consent of Lessor shall be considered void from its inception and shall be grounds for the immediate termination of this Lease. Lessor may freely assign this Lease upon written notice to Lessee. 16. Insurance. a. Lessee shall provide and maintain a Commercial General Liability insurance policy, approved in writing by Lessor and the Collier County Risk Management Department, for not less than Three Million and 00/100 Dollars ($3,000,000.00) combined single limits during the term of this Ground Lease. If such amounts are less than good insurance industry practice would require, Lessor, reserves the right to increase these insurance limits by providing Lessee with at least sixty (60) days' advance notice to do so. Page 5 of 12 16.A.1.b Packet Pg. 462 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) b. In addition, Lessee shall provide and maintain Worker's Compensation Insurance covering all employees meeting the then existing Stalutory Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's Liability with a minimum limit of One Hundred Thousand and 00/100 Dollars ($100,000.00) per each accident. lf such amounts are less than good insurance industry practice would require, Lessor, reserves the right to increase these insurance limits by providing Lessee with at least sixty (60) days'advance notice to do so. c. Lessor shall be named as an additional insured on the Commercial General Liability insurance policy. The above-described insurance policies shall list and continuously maintarn Lessor as an additional insured thereon. Evidence of such insurance shall be provided to Lessor and the Collier County Risk Management Department, 3301 East Tamiami Trail, Administration Building, Naples, Florida, 34112, for approval prior to the commencement of this Ground Lease; and shall include a provision requiring not less than ten (10) days prior written notice to Lessor in the event ofcancellation or changes in policy(ies) coverage. If such amounts are less than good insurance practice would require, Lessor reserves the right to reasonably amend their insurance requirements by issuance ofnotice in writing to Lessee, whereupon receipt ofsuch notice Lessee shall have thirty (30) days in which to obtain such additional insurance. The issuer of any policymust have a Certificate of Authority to transact insurance business in the State of Florida and must be rated "A" or better in the most cunent edition of Best's Insurance Reports. Each insurer must be responsible and reputable and must have financial capacity consistent with the risks covered. Each policy must contain an endorsernent to the effect that the issuer waives any claim or right of subrogation to recover against Lessor, its employees, representatives, and agents. d. Failure to continuously abide by all of these insurance provisions shall be deemed to be a material breach of this Ground Lease and Lessor shall have the remedies set forth below. 17.Defaults and Remedies. a. Defaults by Lessee. The occurrence of any of the following events and the expiration ofthe applicable cure period set forth below without such event being cured or remedied will constitute a "Default by Lessee" to the greatest extent then allowed by law: i. Discontinuation of Lessee's operation of the business contemplated in the Parties' Economic Development Agreement for a continuous period of 180 days and such default is not cured within sixty (60) days after Lessor provides written notice ofdefault to Lessee.ii. Making ofa general assignment of the benefit of creditors for a continuous period of 180 days and such default is not cured within sixty (60) days after Lessor provides written notice of default to Lessee.iii. Lessee's failure to utilize the Leased Land as set forth above for a continuous period of sixty (60) days, and such default is not cured within sixty (60) days after Lessor provides written notice ofdefautt to Lessee . Page 6 of l2 16.A.1.b Packet Pg. 463 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) iv. Any lien is filed against the Leased Land or Lessee's interest therein or any part thereof in violation of this Ground Lease, or otherwise, and the same remains unreleased for a penod of sixty (60) days from the date of filing unless within such period Lessee rs contesting in good faith the validity of such lien and such lien is appropriately bonded for a continuous period of 180 days and such default is not cured within sixty (60) days after Lessor provides written notice ofdefault to Lessee. v. Failure of Lessee to perform or comply with any material covenant or condition made under this Ground Lease, which failure is not cured within ninety (90) days from receipt of Lessor's written notice stating the non- compliance shall constitute a default (other than those covenants for which a different cure period is provided), whereby Lessor may, at its option, terminate this Ground Lease by giving Lessee thirty (30) days written notice unless the default is fully cured within that thirty (30) day notice period (or such additional time as is agreed to in writing by Lessor as being reasonably required to correct such default). This Lease Agreement is dependent upon the Economic Development Agreement being in full force and effect. Should the Economic Development Agreement terminate for any reason, including Lessee's failure to open the contemplated business, this Agreernent will automatically terminate as well. b. Remedies of Lessor. i. In the event of the occurrence of any of the foregoing defaults, Lessor, in addition to any other rights and remedies it may have, shall have the immediate right to re-enter and remove all individuals, entities and/or property from the Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost ofand for the account ofLessee, all without service of notice or resort to legal process and without being deemed guilty of trespass, or being liable for any loss or damage which may be occasioned thereby. If Lessee does not cure the defaults in the time fiames as set forth above, and Lessor has removed and stored property, Lessor shall not be required to store for more than thirty (30) days. After such time, such property shall be deemed abandoned and Lessor shall dispose ofsuch property in any manner it so chooses and shall not be liable to Lessee for such disposal. ii. IfLessee fails to promptly pay, when due, any full installment ofrent or any other sum payable to Lessor under this Ground Lease, and if said sum remains unpaid for more than five (5) days past the due date, the Lessee shall pay Lessor a late payment charge equal to five percent (5%) of each such pal.rnent not paid promptly and in full when due. Any amounts not paid promptly when due shall also accrue compounded interest o f two (2%o) percent per month or the highest interest rate then allowed by Florida law, Page 7 of 12 16.A.1.b Packet Pg. 464 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) whichever is higher ("Default Rate"), which interest shall be promptly paid by Lessee to Lessor. iii. Lessor may sue for direct, actual damages arising out of such default of Lessee or apply for injunctive relief as may appear necessary or desirable to enforce the performance and observance ofany obligation, agreement or covenant of Lessee under this Ground Lease, or otherwise. Lessor shall be entitled to reasonable attomey's fees and costs incurred arising out of Lessee's default under this Ground Lease. c. Default by Lessor. Lessor shall in no event be charged with default in the performance ofany of its obligations hereunder unless and until Lessor shall have failed to perform such obligations within ninety (90) days (or such additional time as is reasonably required to correct such default) after written notice to Lessor by Lessee properly and in meaningful detail specifoing wherein, in Lessee's judgrnent or opinion, Lessor has failed to perform any such obligation(s). d. Remedies of Lessee. In partial consideration for the nominal rent charged to Lessee, Lessee hereby waives any claim it may have to direct or indirect monetary damages it incurs as a result of Lessor's breach of this Ground Lease, and also waives any claim it might have to attomeys' fees and costs arising out oflessor's breach of this Ground Lease. Lessee's remedies for Lessor's default under this Ground Lease shall be limited to the following: i. For injunctive relief, as may appear necessary or desirable to enforce the performance and observance of any obligation, agreement or covenant of Lessor under this Ground Lease. ii. Lessee may cure any default of Lessor and pay all sums or do all reasonably necessary work and incur all reasonable costs on behalf of and at the expense ofLessor. Lessor will pay Lessee on demand all reasonable costs incurred and any amounts so paid by Lessee on behalf of Lessor, with no interest. e. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended to be exclusive ofany other available remedy or remedies, but each and every such ronedy will be cumulative and in addition to every other remedy given under this Ground Lease or hereafter existing under law or in equity. No delay or omission to exercise any right or power accruing upon any event of default will impair any such right or power nor be construed to be waived, but any such right and power maybe exercised fiom time to time and as often as may be deemed expedient. f. Non-Waiver. Every provision hereof imposing an obligation upon Lessee is a material inducement and consideration for the execution of this Ground Lease by Lessee and Lessor. No waiver by Lessee or Lessor of any breach of any provision of this Ground Lease will be deemed for any purpose to be a waiver ofany breach ofany other provision Page 8 of 12 16.A.1.b Packet Pg. 465 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) hereofor ofany continuing or subsequent breach ofthe same provision, irrespective ofthe length of time that the respective breach may have continued. Miscellaneous Legal Matters 18. This Ground Lease shall be construed by and controlled under the laws ofthe State ofFlorida. In the event ofa dispute under this Ground Lease, the Parties shall first use the County's then-current Altemative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action in the Circuit Court of Collier County to enforce the terms of this Ground Lease, which Court the Parties agree to have the sole and exclusive jurisdiction. 19. This Ground Lease contains the entire agreement of the Parties with respect to the matters covered by this Ground Lease and no other agreement, statement or promise made any party, or to any employee, officer or agent of any party, which is not contained in this Ground Lease shall be binding or valid. Time is of the essence in the doing, performance and observation ofeach and every term, covenant and conditron of this Ground Lease by the Parties. 20. In the event state or federal laws are enacted after the execution of this Ground Lease, which are applicable to and preclude in whole or in part the Parties' compliance with the terms ofthis Ground Lease, then in such event this Ground Lease shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Ground Lease. 21. Except as otherwise provided herein, this Ground Lease shall only be amended by mutual written consent of the Parties hereto or by their successors in interest. Notices hereunder shall be given to the Parties set forth below and shall be made by hand delivery, facsimile, overnight delivery or by regular mail. If given by regular mail, the notice shall be deemed to have been given within a required time if deposited in the U.S. Mail, postage prepaid, within the time limit. For the purpose of calculating time limits which run from the giving of a particular notice, the time shall be calculated from actual receipt of the notice. Time shall run only on business days which, for purposes of this Ground Lease shall be any day other than a Saturday, Sunday or legal public holiday. Notices shall be addressed as follows: If to Lessor: County Manager Collier County Manager's Office 3301 East Tamiami Trail Naples, Florida 341 12 CC: Real Property Management 3301 Tamiami Trail Building W Naples, Florida 341 l2 Page 9 of 12 16.A.1.b Packet Pg. 466 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) If to Lessee: Alfie Oaks 7695 Santa Cruz Court Naples, FL 34109 CC: Steve Bracci, Esq. 9015 Strada Stell Court, Suite 102 Naples, FL 34109 Notice shall be deerned to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized ovemight delivery service. 22. Lessee is an independent contractor and is not an agent or representative or employee of Lessor. During the term of this Ground Lease, neither Lessee nor anyone acting on behalf of Lessee, shall hold itself out as an ernployee, servant, representative or agent of Lessor. Neither party will have the right or authority to bind the other party without the express written authorization ofsuch other party to any obligation to any third party. No third party is intended by the Parties to be a beneficiary of this Ground Lease or to have any rights to enforce this Ground Lease against either party hereto or otherwise. Nothing contained in this Ground Lease will constitute the Parties as partners orjoint ventures for any purpose, it being the express intention of the Parties that no such partnership orjoint venture exists or will exist. Lessee acknowledges that Lessor is not providing any vacation time, sick pay, or other welfare or retirement benefits normally associated with an employee-employer relationship and that Lessor excludes Lessee and its employees fiom participation in all health and welfare benefit plans including vacation, sick leave, severance, life, accident, health and disability insurance, deferred compensation, retirement and grievance rights or privileges. 23. Neither party to this Ground Lease will be liable for any delay in the performance ofany obligation under this Ground Lease or ofany inability to perform an obligation under this Ground Lease ifand to the extent that such delay in performance or inability to perform is caused by an event or circumstance beyond the reasonable control ofand without the fault or negligence of the party claiming Force Majeure. "Force Majeure" shall include an act of God, war (declared or undeclared), sabotage, riot, insurrection, civil unrest or disturbance, military or guerrilla action, economic sanction or embargo, civil strike, work stoppage, slow-down or [ock-out, explosion, fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, and the binding order of any govemmental authority. 24. Lessee will not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous Materials upon or about the Leased Land, nor permit employees, representatives, agents, contractors, sub-contractors, sub-sub-contractors, material men and/or suppliers to engage in such activities upon or about the Leased Land. 25. In compliance with Section 404.056, Florida Starutes, atl 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 ofradon that exceed federal and state guidelines have been found Page l0 of 12 16.A.1.b Packet Pg. 467 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department. 26. Lessee shall execute this Ground Lease prior to it being submitted for approval by the Board of County Commissioners. This Ground Lease may be recorded by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the County enters into this Ground Lease, at Lessee's sole cost and expense. IN WITNESS WHEREOF, the Lessee and Lessor have hereto executed this Ground Lease the day and year first above written. AS TO THE LESSEE: Oakes Farms, Inc. AS TO THE LESSOR: ATTEST: DWIGHT E. BROCK, Clerk By: Approved as to form and legality: RD OF COUNTY COMMISSIONERS, LIER COUNTY, FLORIDA BOA COL By: - , Deputy Clerk Andy Solis, Chairman itness (si (Print Name and Title) Witness (signature) (print name) Jeffrey A. Klatzkow, County Attorney Page 11 of12 16.A.1.b Packet Pg. 468 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) EXHIBIT A (Description of Leased Land) Page 12 of 12 16.A.1.b Packet Pg. 469 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking) EXHIBIT A (Description of Leased Land) 16.A.1.b Packet Pg. 470 Attachment: Ground Lease by and Between Collier County and Oakes Farms, Inc. with Exhibit A (5272 : Oakes Farms Parking)