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Agenda 10/27/2009 Item #12BAgenda Item No. 12B October 27, 2009 Page 1 of 149 EXECUTIVE SUMMARY Report to the Board with respect to the Naples Zoo Lcase, with a discussion on whether the Board wishes to reduce or eliminate the rent. OBJECTIVE: To report to the Board on the issue of the Naples Zoo lease. CONSIDERATIONS: At its September 15, 2009 meeting, the Board of County Commissioners directed the County Attorney to review and bring back a standard lease policy for the purpose of establishing a consistent policy concerning the leasing of County property to not- for - profit organizations. In reviewing the County's various leases with not - for -profit entities, the lease concerning the Naples Zoo raised an issue concerning Board intent and direction. For this reason, the County Attorney has elected to bring this issue to the Board by two companion Executive Summaries. This Executive Summary discusses the Naples Zoo lease. The companion Executive Summary discusses the proposed standard form leases. As detailed below, the Board's directive was that following the purchase, the Naples Zoo lease be negotiated in the best interest of the entire community. This did not occur. History of this Matter. Included as back -up is the November 15, 2005 Executive Summary in which the Board voted on acquiring the property, a large part of which included the Naples Zoo, together with the agenda material and a copy of the transcript of the discussions. Staff's recommendation was as follows: "That the Board after selecting either Option 1 or Option 2: approve and authorize the Chairman to execute an Agreement for Sale and Purchase, and Assignment of Lease once finalized and approved by the County Attorney's Office, and any and all other County Attorney's Office approved documents related to this purchase..." Option 1 was for the purchase of 129.981 acres for $41,500,000. Option 2 included an additional 2 parcels totaling 7.37 acres for $45,500,000. The motion (with page reference to the transcript) was as follows: Commissioner Fiala: I'd like to make a motion that we approve option one, which is buying parcels one, two, three, 10 and 16, for $41.5 million. The motion was seconded by Commissioner Coyle. (pg. 49) There was then a discussion on voter intent with respect to the referendum concerning the purchase of the zoo, potential grant money following the purchase, and whether to explore the purchase of the other two parcels. (pgs. 50 -54) There was then a discussion with the County Attorney's Office concerning the lease. The transaction was structured by having the sale subject to a lease agreement between The Trust for Public Land and the Naples Zoo, Inc., which lease was to be assigned to the County following the Agenda Item No. 12B October 27. 2009 Page 2 of 149 sale. The purpose for this was to ensure that the existing operators would continue to manage the Naples Zoo, as purchasing the property without an existing lease would have required the County to bid this out. There was considerable discomfort raised by Commissioners Coyle and Fiala with respect to the lease and its rental terms, with discussion on whether the Board could separate the purchase and lease decisions. The discussion then migrated towards amending the lease following the transaction, with the motion modified by Commissioner Fiala to include discussions of the 1".se. (pqs. 55 -61) The discussion then proceeded as follows. Commissioner Fiala: But the motion does include that we are able to discuss this rent afterwards. Chairman Coyle: Or anything else — Commissioner Fiala: Anything else, yes. Commissioner Coyle: -- as far as I'm concerned about this lease agreement. Commissioner Fiala: Not in five years? Now. Chairman Coyle: Immediately, whenever we acquire it. We should be able to sit down with the Tetzlaffs and negotiate an agreement that is in the best interest of this entire community. And if that is your motion, I'll still second it. Commissioner Fiala: Yes, that's my motion. (pgs. 61 – 62) The motion was then called and passed 3 -2. Accordingly, Board action on this item was to purchase the Option I parcels, and following the purchase, to negotiate a new lease agreement with the Tetzlaffs. I put the question to counsel for the Tetzlaffs, and was informed these negotiations never occurred. The assignment of lease was administratively forwarded to the Board for signature, along with the purchase documents, and was executed without further Board discussion or action. Where the Issue Currently Stands There is an outstanding Board directive that this lease be negotiated in the best interest of the entire community. I have spoken with counsel for the Naples Zoo, who has requested that the annual rent be waived, along with additional minor lease changes, all as set forth in a proposed addendum to the Lease, a copy of which is included as back -up to this item. If the only issue is rent, I have prepared a proposed Lease Amendment which would reduce or eliminate the rent, a copy of which is also included. LEGAL CONSIDERATIONS: The Board is within its authority to reduce all or part of the current rent, to maintain the lease terms as is, or to commence negotiations with the Lessee. -JAK FISCAL IMPACT: The following is a summary of the rentals received from the Naples Zoo. The income has been deposited into and is being utilized for the Gordon Greenway Park Project Fund. I have been advised by staff that although eliminating this income will have no immediate Agenda Item No. 12B October 27, 2009 Page 3 of 149 impact to the General Fund, in the future the loss of this income will likely need to be made up elsewhere. Naples Zoo - Rents Summary as of 10/16/2009 Rents - $19,625 per month started December 2005 - 1/2 month rent Posts to Parks Capital Project Fund 306 Parks Capital Projects Cost Center 116360 Gordon Greenway Park Project 80065 Receipts in FY 2006 204,754.17 Re ce i pts i n FY 2007 215, 875.00 Receipts in FY 2008 235,500.00 Re ce i pts i n FY 2009 247,129.00 Receipts in FY 2010 _ 19,625.00 (Oct Rent) Total Rents Received 922,883.17 Expenditures in FY 2006 - Expenditures in FY 2007 55,524.50 Expenditures in FY 2008 42,780.00 Expenditures in FY 2009 103,601.41 Expenditures in FY 2010 - Total Expenditures 201,905.91 GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: None. This is a policy decision for the Board. Prepared by: Jeffrey A. Klatzkow, County Attorney .1. Page 1 of 1 Agenda Item No. 12B October 27, 2009 Page 4 of 149 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 12B Item Summary: This item to be heard immediately following Item 12A. Report to the Board with respect to the Naples Zoo Lease, with a discussion on whether the Board wishes to reduce or eliminate the rent. Meeting Date- 10/27/2009 9:00:00 AM Prepared By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 10/19/2009 1:46:39 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 10/19/2009 3:16 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 10/1912009 4:30 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County County Manager's Office 10/20/2009 11:29 AM Commissioners file: / /C:\AgendaTest \Export\137- October 27, 2009 \12. COUNTY ATTORNEY REPORT\... 10/21/2009 Agenda Item No. 12B October 27, 2009 Agenda 110031ZA Oil November 15, 2005 Page 1 of 45 EXECUTIVE SUM ARY Recommendation to approve an Agreement for Sale and Purchase with the Trust for Public Land for the purchase of land housing and adjoining Caribbean Gardens and the Naples Zoo at a cost not to exceed $45,667,911. Ogg EcTtVE: To purchase approximately 43.5 acres housing the Caribbean Gardens and Naples Zoo and certain adjoining acreage to provide public access to the Gordon River, preserve and protect adjoining environmentally sensitive lands, and other uses the Board of County Commissioners (Board) determines as appropriate. CONSIDE T10NS: On November 2, 2004, a majority of Collier County voters approved a referendum to increase taxes in order to raise $40 million to acquire property housing the "Caribbean Gardens and Naples Zoo" and adjoining 100 plus or minus acres (Property) to assure the continued operation of the Caribbean Gardens and Naples Zoo. On Tuesday, November 16, 2004, Agenda Item 10B, the Board approved using the services of the Trust for Public Land (TPL), a notlonai nonprofit land conservation organization, to negotiate a price based on multiple appraisals that would be acceptable to the Board. TPL would not be acting as an agent for the Board or be under contract with the Board, but be a principal in the transaction. The Fleischmann families, the "Owners" of the Property, are asking $67,500,000 based upon an appraisal secured by them in the same amount. The County secured three appraisals: one �,.. valuing the Property at $46,000,000; a second valuing the Property at $52,400,000; and a third at $60,240,000. Negotiations have been extensive with all offers made with Board authorization being rejected by the Owners. When TPL was made aware that the Board might give consideration to condemning for the Property, TPL notified Jim Mudd, County Manager, in writing that TPL would have to withdraw from their role as an intermediary for the Board. With the Board's ultimate decision, however, not to pursue condemnation, TPL rekindled negotiations with the Owners to acquire the Property as a private, third -party buyer, and has worked toward being able to convey as much land to the Board as the Board deems appropriate and financially prudent. TPL has the entire Property (166.441 acres) under purchase contract and is offering the Board the opportunity to purchase either (refer to the attached aerial): Option 1 - Parcels 1, 2, 3, 10 & 16 (129.981 acres) for $41,500,000, or Option 2 - Parcels 1, 2, 3, 10, 11, 12 & 16 (137.351 acres) for $45,500,000. TPL obtained an updated appraisal from Urban Realty Solutions giving value of Option 1 and Option 2 at $42,000,000 and $46,120,000, respectively. The attached Agreement for Sale and Purchase (Agreement) outlines the terms of the proposed purchase from TPL. The price and legal description of the parcels to be acquired (Tract) will be inserted based upon which purchase option the Board selects. The Agreement is contingent upon TPL closing on Its purchase from the Owners, and TPL entering into a lease with Naples Zoo, Inc., a Florida nonprofit corporation, and assigning same to the Board at closing of the purchase from TPL. The Lease and Assignment of Lease are attached to the Agreement as exhibits. The term of the lease is for ten years with Naples Zoo, Inc. having the right to renew for four individual ten -year periods, each renewal requiring Board approval. The annual rental is the higher of $235,500 (Base Rent) or the sum total of 6% of the first $750,000 of the Zoo's �' gross receipts from sales and services and 7% of any gross receipts from sales and services in Agenda Item No. 12B October 27, 2009 Agenda R&M.of*9 November 15, 2005 Page 2 of 45 ,•— excess of $750,000. The Base Rent can be increased every five years at the Board's discretion up to an amount not to exceed the sum total of CPI for the previous five years. Conservation Collier is interested In acquiring portions of the Tract. Conservation Collier will have to operate within its Purchasing Policy of securing two appraisals and paying the average of the two. Because of the time required to go through the purchasing process, Conservation Collier funds will not be available at the time the Tract is acquired from TPL. Conservation Collier will come to the Board at a future date for approval to designate a portion of the Tract as Conservation Collier property and to transfer Conservation Collier Trust Fund (172) dollars to the funding source used to acquire the Tract. FISCAL IMPACT: The total costs of the transaction, including the costs of appraisals, an environmental 659149 fo option Land $45,667,9111 for Option 2. nual rental related will documents, be are a $41, minimum of $235,500.. On July 26, 2005 the Board of County Commissioners approved a $40,000,000 Commercial Paper loan (agenda item 10A) as an interim financing measure to secure this property in accordance with the referendum. A new Commercial Paper Resolution (separate Executive Summary on the November 15, 2005 agenda) will be requested for approval by the BCC for the balance of funding required to acquire the Caribbean Gardens property. Interest on the Commercial Paper loan will be paid from the Caribbean Gardens 0.1500 millage levied in FY 06. r The FY 06 tax levy (0.1500 mills for Caribbean Gardens) will provide approximately $6.6 million to be applied toward the Commercial Paper loan principal balance. The bulk of these tax proceeds will be received by the end of November 2005 (the end of the 40/6 discount period for early payment). Staff will proceed with principal reduction payments as dictated by requirements of the Commercial Paper loan agreement. The Commercial Paper program provides maximum flexibility in that interest is computed monthly based on the outstanding principal balance. Principal reduction payments can be made anytime with advance notice to program officials. GR WTH MANAGEMENT IMPACT: This acquisition is consistent with the Growth Management Plan. RICOMMENDATION_: That the Board after selecting either Option 1 or Option 2: approve and authorize the Chairman to execute an Agreement for Sale and Purchase, and Assignment of Lease once finalized and approved by the County Attorney's Office, and any and all other County Attorney's Office approved documents related to this purchase; accept the Warranty Deed once it has been received and approved by the County Attorney's Office; authorize the processing of related Warrants payment; authorize an and an y and all necessary docume tsoobtainclear title to the Tract; and, approve y necessary budget amendments. PREPARED BY: Charles E. Carrington, Jr. Real Estate Services Manager I Facilities Management Department �t'a Q :1� L rtl i � f '" s 15 Agenda Item No. 12B October 27, 2009 `� NO' ME Page 8 of 149 W Is. 2W5 pap! 4 0145 COLLIER COUNTY BOARD OF COUNTY COMMISSIOMM Meer lowber. 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W 143 FM Cewlnialann _ Agenda Item No. 12B October 27, 2009 Agenda Item No. 1CRa g e 9 of 149 November 15. 20115 Page 5 of 45 THIS AGREEMENT is made and entered into by and between The Trust for Public Land, a nonprofit California corporation (hereinafter referred to as "Seller"), having an address of 1595 Bay Street SE, Suite 3, St. Petersburg, Florida 33701, and Coifisr County, a political subdivision of the State of Florida, (hereinafter referred to as "Purchaser') having an address of 3301 Tamlami Trail East, Naples, Florida 34112. WITNESSETH WHEREAS, Purchaser acknowledges and agrees that Seller has a binding Agreement for Purchase and Sale on that certain real property in Collier County, Florida, which property is more particularly described in Exhibit "A' attached hereto and Incorporated herein by this reference (hereinafter referred to as "Property ") and that any and all improvements, fixtures, timber, artifacts, water and minerals located thereon, any and all appurtenant rights, including but not limited to, riparian rights, timber rights, access rights, and mineral rights; and WHEREAS, the parties agree and acknowledge that the obligations of both parties under this Agreement are contingent upon Sober aMulhng marketable fee simple title to the Property from the current owners; and WHEREAS, Purchaser is desirous of purchasing a portion of the Property, more particularly described in Exhibit "B" attached hereto and made a part hereof, subject to the conditions and other agreements hereinafter set forth, and Seller is agreeable to such sale and to such conditions and agreements. The property described in Exhibit "B" is hereinafter referred to as the "Conservation and Zoo Parcels." NOW, THEREFORE, in consideration of the premises and the respective undertakings of the parties hereinafter set forth and the sum of Ten Dollars ($10.00), the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows: i. AGREEMENT 1.01 In consideration of the purchase price and upon the terns and conditions hereinafter set forth, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the Conservation and Zoo Parcels. 2.01 The purchase price ( "Purchase Price") for the Conservation and Zoo Parcels shall be MILLION DOLLARS AND NO CENTS ($ 00) (U.S. Currency) payable at the time of closing. Ill. CLOSING 3.01 The Closing (THE "CLOSING DATE ", "DATE OF CLOSING ", OR "CLOSING") of this transaction shall be held on December 19, 2005, unless extended by mutual written agreement by the parties hereto. The Closing shall be held at the Collier County Attorney's Office, Administration Building, 3301 Tamlami Trail East. Naples, Florida 34112. The procedure to be followed by the parties in connection with the Closing shall be as follows: 3,011 Seller shall convey marketable title free of any liens, encumbrances, exceptions, or qualifications. Marketable title shall be determined according to applicable title standards adopted by the Florida Bar and in accordance with law. At the Closing, Seiler shall cause to be delivered to the Purchaser the items specified herein and the following documents and instruments duly �— executed and acknowledged, In recordable form: Agenda Item No. 12B October 27, 2009 ' Paae 10 of 149 Agenda (tern No. 1 DE November 15. 2008 3.0111 Warranty Deed In favor of Purchaser conveying title IiD9i bor45 Conservation and Zoo Parcels, free and clear of all liens and encumbrances other than: (a) The lien for current taxes and assessments; and (b) Such other easements, restrictions or conditions of record. 3.0112 Combined Purchaser - Seiler closing statement. 3.0113 A "Gap," Tax Proration, Owner's and Non - Foreign Affidavit" as required by Section 1445 of the Internal Revenue Code and as required by the title Insurance underwriter In order to Insure the "gap" and issue the policy contemplated by the title insurance commitment. 3.0114 A W-9 Form, "Request for Taxpayer Identification and Certification" as required by the Internal Revenue Service. 3.0115 A Novation Assignment of Lease between Seller and Purchaser for the operation of the zoo property, said Novation Assignment of Lease shall be substantially in the form attached hereto as Exhibit 'C." 3.012 At the Closing, the Purchaser shall cause to be delivered to the Seller the following; 3.0121 A negotiable instrument (County Warrant), a certified, cashiers', or bank check, or wire transfer of Immediately available funds, in an amount equal to the Purchase Price. No funds shall be disbursed to Seiler until the Title Company verifies that the state of the title to the Conservation and Zoo Parcels has not changed adversely since the date of the last endorsement to the commitment, referenced in Section 4.011 hereto, and the Title Company Is irrevocably committed to Issue the Owner's title policy to Purchaser in accordance with the commitment immediately after the recording of the deed. 3.0122 Funds payable to the Seger representing the cash payment due at Closing In accordance with Article III hereof, shall be subject to credits, adjustments and proration as hereinafter set forth. 3.02 Each party shall be responsible for payment of its own attorney's fees. 3.03 Seller shall pay at Closing the cost of recording any instruments necessary to dear Seller's title to the Conservation and Zoo Parcels. 3.04 Purchaser shall pay for the cost of recording the Warranty Deed and the cost of the Owner's Form B Title Policy, Issued pursuant to the Commitment, provided for in Section 4.011 below, unless Purchaser elects to obtain its own Commitment and Title Policy. The cost of the title commitment shall also be paid by Purchaser. The Purchaser shall also reimburse Sailer for its prorated portion of the cast of the Phase I Environmental Audit, that applies to the Conservation and Zoo Parcels, to be provided to Purchaser by Seger as provided for In Section 4.015 below. The cost shall be prorated on a per acre basis. 3.05 Rents pertaining to the zoo property will be prorated between Seiler and Purchaser at closing based upon the applicable period. 3.06 Purchaser is under no obligation to use Seller's title company for Issuance of a title policy and may procure its own title agent for Issuance of a commitment and policy. In that event, the time periods set forth In Section 4.011 below will still apply. Agenda Item No. 12B October 27, 2009 Agenda Item No. 1 @age 11 of 149 vember 15.2 iv. RFOUIREMENTS AND CONDITIONS Page 7 of 45 4.01 Prior to or upon execution of this Agreement by both parties or at such other -- time as specified within this Article, Purchaser and Seiler shall perform the following within the times stated, which shall be conditions precedent to the Closing: 4.011 Seller has provided Purchaser with a copy of Its ALTA Commltment for an Owner's Titie insurance Policy (ALTA Form B -1970) covering the Conservation and Zoo Parcels, together with hard copies of all exceptions shown thereon. Purchases shall have fifteen (15) days, following receipt of the title Insurance commitment, to notify Seller in writing of any objection to title other than liens evidencing monetary obligations, if any, which obligations shah be paid at closing. if the title commitment contains exceptions that make the title unmarketable or uninsurable, Purchaser shall deliver to the Seher written notice of its Intention to waive the appiicabie contingencies or to terminate this Agreement. 4.012 if Purchaser shall fah to advise the Seller In writing of any such objections in Seller's title in the manner herein required by this Agreement, the title shall be deemed acceptable. Upon notification of Purchaser's objection to title, Seller shall have thirty (30) days to remedy any defects In order to convey good and marketable title, except for liens or monetary obligations which will be satisfied at Closing. Seller, at its sole expense, shall use its best efforts to make such title good and marketable. in the event Seller Is unable to cure said objections within said time period, Purchaser, by providing written notice to Seller within seven (7) days after expiration of said thirty (30) day period, may accept title as It then is, waiving any objection, or Purchaser may terminate the Agreement. A failure by Purchaser to give such written notice of termination within the time period provided herein shall be deemed an election by Purchaser to accept the exceptions to title as shown in the title commitment. 4.013 Sailer, at its expense, shall provide Purchaser, upon execution of this Agreement, with a current certified boundary survey performed by a registered Florida land surveyor in form acceptable to Purchaser. The plat of the survey shall show the boundaries of, and state the acreage of the Conservation and Zoo Parcels, rounded to the nearest one hundredth (11100) of an acre. The legal description in Exhibit "B" shall be changed, if necessary, to conform to the survey and to the requirements of the title commitment. if an accurate boundary survey by Seller's surveyor discloses any state of facts, which materially or adversely affect the insurability or marketability of the title to the Conservation and Zoo Parcels, same shall be treated in the manner as a title objection under Sections 4.011 and 4.012 above. No adjustments to the Purchase Price shall be made based upon any change In the total acreage. 4.014 Purchaser has previously received an appraisal of the Property prepared by Urban Realty Solutions and, on or before October 31, 2005, Seller has provided Purchaser with an addendum to the appraisal providing an updated value for the Conservation and Zoo Parcels. 4.015 Seller shah provide Purchaser with an updated report of an environmental investigation of the Conservation and Zoo Parcels carried out and prepared by a licensed engineer or geologist selected by Seiler employing procedures that a prudent purchaser would employ under the circumstances ('Phase 1 Audit"). At dosing, Purchaser shall reimburse Seller for its prorated portion of the cost, as defined in Section 3.04 above, of said Phase 1 Audit. The parties acknowledge that the Phase 1 Audit final report states that there are no recognized environmental conditions present on or beneath the surface of the Conservation and Zoo Parcels. 4.016 Unless the Conservation and Zoo Parcels is served by municipal sewer and water, Seiler, at its expense, shall locate and place aboveground markers indicating the locations of ail septic tanks and cesspools located on the Agenda Item No. 12B October 27, 2009 ' ' nda Kern �(ffVe 12 of 149 Hovembsr 15. 2005 Conservation and Zoo Parcels, unless such tanks are located on the poffWdfof 45 the Conservation and Zoo Parcels that are under lease to Naples Zoo, Inc. 4.017 Seller shall have the right to erect and maintain a sign or other appropriate marker in a prominent location within the median island area of Seventeenth Street North, also known as Fleischmann Boulevard, indicating that the Conservation and Zoo Parcels were acquired with the assistance of the Seller. Said median Island area (approx. 0.02 acres + / -) Is described in Exhibit B as a part of the Conservation and Zoo Parcels, Seller Is responsible for obtaining all required governmental permits In connection with placing the irg i on the Conservation and Zoo Parcels. Seller shall be responsible for the costs of erecting and maintaining such sign or marker. If the sign Is not properly maintained in good condition, Purchaser will notify Seiler. If the condition is not corrected within sixty (60) days after notice, Purchaser may remove the sign. 5.01 Purchaser shall have until November 17, 2005 ( "Inspection Period "), to determine through appropriate investigation that; 1. Soil tests and engineering studies indicate that the Conservation and Zoo Parcels can be developed without any abnormal demucking, soil stabilization or foundations; and 2. There are no abnormal drainage or environmental requirements to the development of the Conservation and Zoo Parcels; and 3. The Conservation and Zoo Parcels are In compliance with all applicable State and Federal environmental laws and the Conservation and Zoo Parcels are free from any pollution or contamination; and 4. That the Conservation and Zoo Parcels can be used as intended by Purchaser. 5.02 If Purchaser is not satisfied, for any reason whatsoever, with the results of any investigation or the Phase I Environmental Audit provided by Seiler, Purchaser shall deliver to Seller prior to expiration of the Inspection Period, written notice of its intention to terminate this Agreement or to waive this contingency. if Purchaser falls to notify the Seller In writing of its specific objections as provided herein within the inspection Period, it shall be deemed that the Purchaser Is satisfied with the results of Its investigations and the contingency of this Article V shall be deemed waived. In the event Purchaser elects to terminate this Agreement because of the right of Inspection, Purchaser shall deliver to Seller copies of all engineering reports and environmental and soil testing results commissioned by Purchaser with respect to the Conservation and Zoo Parcels. 5.03 Purchaser and Its agents, employees and servants shall, at their own risk and expense, have the right to go upon the Conservation and Zoo Parcels for the purpose of surveying and conducting site analyses, soil borings and all other necessary investigation. Provided, however, any inspections of the parcels that are under lease to Naples Zoo, Inc. ( "Lessee') require prior notice to the Lessee before any access is pernnitted to the zoo premises. Purchaser agrees to coordinate any inspections on zoo promises with the Lessee in order to minimize any disruption to zoo occupants and operations. Purchaser shall, In performing such tests, use due care. Seller acknowiedges that the Purchaser, or its authorized agents, shalt have the right to Inspect the Conservation and Zoo Parcels at any time prior to Closing provided Saner is notified by Purchaser no less than twenty four (24) hours prior to said inspection of the Conservation and Zoo Parcels. �. VI. DELETED Agenda Item No. 12B October 27, 2009 Agende Item No. 'age 13 of 149 November 15.2 page 9 of 45 7,01 Purchaser shall be entitled to full possession of the Conservation and Zoo -- Parcels at posing, subject only to the oocupency rights of the Losses. In addition, Purchaser acknowledges that it has been informed that a number of homeless people may be living on the Conservation and Zoo Parcels and that it is Purchaser's responsibility to secure the Conservation and Zoo Parcels by their removal. VI it. 2RO_ RATIS)1 8.01 Seller shall, in accordance with Section 196.295, Florida Statutes, place in escrow with the Collier County Tax Collector an amount equal to the currant taxes prorated to the date of transfer, based upon the current assessment and millage rates on the Conservation and Zoo Parcels. IX. TERMINATION AN REMEDIES 9.01 If Seller shall have failed to perform any of the covenants and/or agreements contained herein which are to be performed by Seller, within ten (10) days of written notification of such failure, Purchaser may, at its option, terminate this Agreement by giving written notice of termination to Seller, whereupon Purchaser, as its sole remedy, shall receive $10,000 as liquidated damages from Seiler. 9.02 If the Purchaser has not terminated this Agreement pursuant to any of the provisions authorizing such tan;nination, and Purchaser fails to close the transaction contemplated hereby or otherwise falls to perform any of the terms, covenants and conditions of this Agreement as required on the part of Purchaser to be performed, provided Seller Is not in default, then as Seller's sole remedy, Seller shall have the right to terminate and cancel this Agreement by giving written notice thereof to Purchaser, whereupon Seller, as its sole remedy, shall receive $10,000 as liquidated damages which shall be Sellers sole and exclusive remedy, and neither party shall have any further liability or obligation to the other except as sat forth in Section 12.01, (R„gaI Estate Brokers), hereof. 9,03 The parties acknowledge and agree that Seliers and Purchasers actual damages in the event of either's default are uncertain in amount and difficult to ascertain, and that the aforesaid amount of liquidated damages was reasonably determined by mutual agreement between the parties, and said sum was not intended to be a penatty in nature. The parties further acknowledge that the remedies described herein and in the other provisions of this Agreement provide mutually satisfactory and sufficient remedies to each of the parties, and take into account the peculiar risks and expenses of each of the parties. X, R P ESE TATIONS AND WARRANTIES 10.01 Seller and Purchaser represent and warrant the following: 10.011 Seller and Purchaser have full right and authority to enter into and to execute this Agreement and to undertake all actions and to perform all tasks required of each hereunder. Seller is not presently the subject of a pending, threatened or contemplated bankruptcy proceeding. 10.012 Seller has full right, power, and authority to own and operate the Conservation and Zoo Parcels, and to execute, deliver, and perform its obligations under this Agreement and the instruments executed in connection herewith, and to consummate the transaction contemplated hereby. All necessary authorizations and approvals have been obtained authorizing Seller and Purchaser t Closing, execute and consummate the transaction certified copies of such approvals shall be delivered to hereby. Purchaser and /or Seller, if necessary. Agenda Item No. 12B October 27, 2009 Agenda Item No. PSge 14 of 149 Olowmber 15. 2005 10.013 The warranties set forth in this Article shall be true on the datiftWllfpt 45 Agreement and as of the date of Closing. Purchaser's acceptance of a deed to the said Conservation and Zoo Parcels shall not be deemed to be full performance and discharge of every agreement and obligation on the part of the Seiler to be performed pursuant to the provisions of this Agreement. 10.014 Seller represents that to the best of Its knowledge, without further Inquiry, it has no knowledge of any actions, suits, claims, proceedings, litigation or investigations pending or threatened against Seiler, at law, equity or in arbitration before or by any federal, state, municipal or other governmental instrumentality that relate to this agreement or the Conservation and Zoo Parcels that could, If continued, adversely affect Seller's ability to self the Conservation and Zoo Parcels to Purchaser according to the terms of this Agreement. 10.015 Seller represents that to the best of Its knowledge, without further Inquiry, no party or person other than Purchaser has any right or option to acquire the Conservation and Zoo Parcels or any portion thereof, No party other than Seller will be in possession of or have the right of possession of any portion of the Conservation and Zoo Parcels at the time of conveyance to Purchaser, other than Naples Zoo, Inc, as Lessee of the zoo premises. 10.016 Until the date fixed for Closing, so long as this Agreement remains In force and effect, Seiler shall not encumber or convey any portion of the Conservation and Zoo Parcels or any rights therein, nor enter into any agreements granting any person or entity any rights with respect to the Conservation and Zoo Parcels or any part thereof, without first obtaining the written consent of Purchaser to such conveyance, encumbrance, or agreement which consent may be withheld by Purchaser for any reason whatsoever. 10.017 Seller acknowledges and agrees that Purchaser is entering into this Agreement based upon Seller's representations stated above and on the understanding that Seiler will not cause the zoning or physical condition of the Conservation and Zoo Parcels to change from Its existing state on the effective date of this Agreement up to and Including the Date of Closing. Therefore, Seller agrees not to enter Into any contracts or agreements pertaining to or affiecting the Conservation and Zoo Parcels and not to do any act or omit to perform any act which would change the zoning or physical condition of the Conservation and Zoo Parcels or the governmental ordinances or laws governing same. Seller also agrees to notify Purchaser promptly of any change In the facts contained in the foregoing representations and of any notice or proposed change in the zoning, or any other action or notice, that may be proposed or promulgated by any third parties or any governmental authorities having Jurisdiction of the development of the property which may restrict or change any other condition of the Conservation and Zoo Parcels. 10.018 At the Closing, Seller shall deliver to Purchaser a statement (hereinafter called the "Closing Representative Statement') reasserting the foregoing representations as of the Date of Closing, which provisions shall survive the Closing. 10.019 Any loss and/or damage to the Conservation and Zoo Parcels between the date of this Agreement and the date of Closing shall be Seller's sole risk and expense. Xi. NOTICES 11.01 Any notice, request, demand, Instruction or other communication to be given to either party hereunder shall be In writing, sent by facsimile, with written confirmation of transmission, or by registered, or certified mail, return receipt -- requested, postage prepaid, or by ovemight delivery by a nationally known delivery company addressed as follows: Agenda Item No. 12B October 27, 2009 No a"rNO ge15of149 yprt�e 15, page 11 of 45 if to Purchaser: Cindy Erb, Senior Acquisition Agent Real Estate Services Department Administration Building 3301 Temiami Trail East Naples, Florida 34112 774-8917 Telephone (239)774 -8876 Facsimile With a copy to: Ellen Chadwell County, Attorney office of the County Attorney Adnninistration Building 3301 Tamiarni Trail East Naples, Florida 34112 (239) 774 -8400 Telephone (239) 774 -0225 Facsimile if to Seller: John Garrison The Trust For Public Land 1595 Bay Street SE, Suhte3 St, Petersburg, F4 33701 (727) 885 -5090 Telephone (727) 895 -5190 Facsimile With a copy to: Donna H. Smith, Regional Counsel The Trust For Public Land 4267 IsW Federal Highway PMB 120 Jensen Beach, FL 34957 (772) 335.3520 Telephone (772) 335 -1438 Facsimile 11.02 The addressees and numbers for the purpose of this Article may be changed by either party by giving written notice of such change to the other party In the manner provided herein. For the purpose of changing such Information only, unless and until such written notice is received, the last addressee and respective address and numbers stated herein shall be deemed to continue in effect for all purposes. X41. 13E AL ESTATE BROKERS 12.01 Any and all brokerage commissions or fees shall be the sole responsibility of the Seller. Seller shall indemnify Purchaser and hold Purchaser harmless from and against any claim or liability for commission or fees to any broker or any other person or party claiming to have been engaged by Seller as a real estate broker, salesman or representative, in connection with this Agreo the terms Seller e seagrees to pay any and all commissions or fees at closing pursuant agreement, if any. xhll. mism;LLANEOU 13.01 This Agreement may be executed in any manner of counterparts that together shall constitute the agreement of the parties. 13.02 This Agreement and the terms and provisions hereof shall be effective as of the date this Agreement is executed by the last signing party and shall Inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, personal representatives. successors, successor trustee, and assignees whenever the context so requires or admits. s s d shall not dated e hereof unless such amendment i in writing an utda d byPurchas r and Agenda Item No. 12B October 27, 2009 Apands Item No.RiWe 16 of 149 November 15. 2005 Seller. Any amendment to this Agreement shall be binding upon Purchalspeal 45 Seller as soon as It has been executed by both parties. 13.04 Captions and section headings contained In this Agreement are for convenience and reference only; in no way do they define, describe, extend or limit the scope or Intent of this Agreement or any provisions hereof. 13.05 All terms and words used in this Agreement, regardless of the number and gender in which used, shall be deemed to Include any other gender or number as the context or the use thereof may require. 13.06 No waiver of any provision of this Agreement shall be effective unless it Is in writing signed by the party against whom it is asserted, and any waiver of any provision of this Agreement shall be applicable only to the specific instance to which It is related and shall not be deemed to be a continuing or future waiver as to such provision or a waiver as to any other provision. 13.07 If any date specified in this Agreement falls on a Saturday, Sunday or legal holiday, then the date to which such reference Is made shall be extended to the next succeeding business day. 13,06 If the Seiler holds the Conservation and Zoo Parcels In the form of a partnership, limited partnership, corporation, trust or any form of representative capacity whatsoever for others, Seiler shall make a written public disclosure, according to Chapter 286, Florida Statutes, under oath, of the name and address of every person having a beneficial Interest in the Conservation and Zoo Parcels before Conservation and Zoo Parcels held In such capacity is conveyed to Collier County. (If the corporation is registered with the Federal Securities Exchange Commission or registered pursuant to Chapter 517, Florida Statutes, whose stock Is for sale to the general public, it is hereby exempt from the provisions of Chapter 286, Florida Statutes.) 13.09 This Agreement is govemed and construed In accordance with the laws of the State of Florida. XIV. gNTIRE AGREEMENT 14.01 This Agreement and the exhibits attached hereto contain the entire agreement between the parties, and no promise, representation, warranty or covenant not included in this Agreement or any such referenced agreements has been or is being relied upon by either party. No modification or amendment of this Agreement shall be of any force or effect unless made in writing and executed and dated by both Purchaser and Seiler. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties hereto set forth their hands seals. Dated Project/Aoquisition Approved by BCC: r�� DATED: ATTEST: DWIGHT E. BROCK, Clerk , Deputy Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: Fred W. Coyle, Chairman Agenda Item No. 12B October 27, 2009 Agenda Item No, 1g5ge 17 of 149 Novembet 15, 20..055 Page 13 of 45 DATED: -- WITNESSES: THE TRUST FOR PUBLIC LAND BY: (Signature) Prim Name: (Printed Name) (Signature) (printed Name) AS TO ITS INTEREST AS LESSEE OF THE ZOO PARCEL: Naples Zoo, Inc. By: - David Tettlaff, Executive Director Approved as to form and legal sufficiency: Ellen T. Chedwell Assistant County Attorney 9 Agenda Item No. 12B October 27, 2009 A ends Item No Pblye 18 of 149 November 15. 2005 Page 14 of 45 EXHIBIT "A' PROPERTY DESCRIPTION Island in 170 Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Naples, according to the map or plat thereof on file and recorded in the office of the Cleric of the Circuit Court, recorded in Plat Book 1, Page 8, in the Public Records of Collier County, Florida, All that part of Lot 9 of Naples Improvement Company's Little Farms Subdivision, lying south of Golden Gate Parkway, recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida. , The East 564 feet of the West 1,184 feet of Lot 8 of Naples Improvement Company's Little Farms Subdivision, less road right -of -way granted in Official Records Book 876, Page 1.718, according to the reap or plat thereof on file and recorded In the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida. The East 470 feet of the West 1,654 feet of Lot 8 of Naples Improvement Company's Little Farms Subdivision recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida. Ali of Lot 8 of Naples Improvement Company's Little Farms Subdivision, except the West 1,654 feet, according to the plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; the East and West boundary lines of said Parcel being measured from the West line of sold Lot 8 (said West line of Lot 8 lying 25.00 feet East of the North and South Y Section line of Section 27, Township 49 South, Range 25 East, Collier County, Florida. The East 33824 feet of the West 958.34 feet of Lot 7 of Naples Improvement Company's Little Farms Subdivision, per Plat Book 2, Page 2, Public Records of Collier County, Florida, less and except that portion deeded to the Board of County Commissioners of Collier County, Florida described as: Commence at the Northwest corner of said Lot 7; thence N 89 degrees 17' 39" East along the North line of said Lot 7 for a distance of 620.00 feet to the POINT OF BEGINNING; thence continue along the North line of sold Lot 7 a distance of 41.60 feet to the point of intersection with the point of curve concave to the Northwest having a radius of 813.94 feet and a central angle of 26 degrees 13' 03% thence continue Southwesterly along said curve an arc distance of 51.30 to a point; thence N 00 degrees 39' 49" West 30 feet to the POINT OF BEGINNING. The North IA of Lot 7, less the West 1288.34 feet, Naples Improvement Company's Little Farms Subdivision, as per plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida. Lot 6 of Naples Improvement Company's Little Fauns Subdivision, less additional road right -of -way for Goodlette -Frank Road, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida: and subject to an easement reserved by Wier, its heirs and assigns, for ingress and egress over the North 60 feet of the West 897 feet thereof. Lots 3, 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2 at Page 2, Public Records of Collier County, Florida; together with all buildings thereon: subject to the following easements of record to Florida Power & Light Company relating to said Lot 6: (a) An easement dated June 10th, 1853, recorded in Deed Book 30 at Page 395 of said Public Records; and (b) An easement dated June 10`h, 1953, recorded in Deed Hook 30 at Page 397 of said Public Records; less and except the following described property: .o Agenda Item No. 12B A ends Item N P'� ber 27, 2009 November 15.2at7gge 19 of 149 Pafle 15 of 45 Part of Lot 3, Naples Improvement Company's Little Farms Subdivision, Collier plat ounty, Florida, n lyiingnE plat asterly oand Southerly of the follows g described line. Commencing at a concrete monument at the South '/4 comer of Section 27, Township 49 South, Range 25 East, Collier County, Florida; thence along the South Line of said Section North 89 degrees 26' 09' East 753.94 to a point; thence South 0 degrees 21' 55' East 334.85 feet to a concrete monument �>n the South line of said Lot #3 and the Point of Beginning of the described line; thence along said described line and the Westerly boundary of the herein described parcel North 0 degrees 21' 55' West 211.15 feet to a concrete monument at the Northwest comer of sold described Parcel; thence along said described line and the Northerly boundary of said described parcel North 89 degrees 38' 05' East 729.90 feet to a concrete monument; thence continue North 89 degrees 38' 05' East 13 feet more or less to the Easterly boundary of Lot 3, Naples Improvement Company's Little Farms Subdivision and the Point of Ending of said described Line. Lot 2, Naples improvement Company's Little Fauns Subdivision, except area described in Deed Book 22, Page 393, Public Records of Collier County, Florida, and less West 25 feet and right -of -way located in Collier County, Florida, and except parcel deeded to Collier County Conservancy, inc„ as Parcel 2 in Ofiiclal Records Book 767, Page 249, Circuit Court Court, recorded iplat Plat thereof Book 2, Plage 2, in the Public Records of Collier County, Florida. A lot vi parcel of plat n lying lat Book Y Page 2pPublic pRecords of ColliiernCountyy,, Florida, Subdivision. Per p which lot is described as follows: .� Beginning at a point on the South line of said Lot 2, which point Is the Northwest corner of Lot So of Gordon River Homes per Plat in Plat Book 2, Page 84, Public Records of Collier County, Florida, run Northerly parallel to the West line of said Lot 2 for 217.5 feet; thence run Easterly parallel to the South line of said Lot for 180 feet; thence run Southerly parallel to West line of said Lot for 217.5 feet to South line of said Lot; thence run Westerly along said South line for 180 feet to Point of Beginning. Being the same premises conveyed by deed recorded in Deed Book 22, Page 393, Public Records of Collier County, Florida; less the West 40 feet thereof, and less road right -of -way for Goodlette -Frank Road. The Westerly AS of Lot 39 and Lot 40, Gordon River Homes Subdivision, Lots 41, 42, and 43 and the East 45 feet of Lot 44, GORDON RIVER HOMES, according to the map or plat thereof on file and recorded � �biioffice e rodfstof Collier Caunty, Florida. BCircuit recorded In Plat Book 2, Page Ail of Lot 97 of Naples improvement Company's Little Farms Subdivision, tying South of Golden Gate Parkway, according to the plat thereof recorded in Plat Book 2, at Page 2, Public Records of Collier County, Florida. in North 'A of North %: of Section 35, Township 49 South, Range 25 East, being at the Northwest comer of the section and run East 1398.25 feet; thence iSouth Co revs West 1555.06 feet; thence North 664.01 feet to the place of beginning, Florida. 11 Agenda item No. 12B October 27, 2009 P e 20 of 149 A�anda Nem No 1� No"", w 15. 2065 Page 16 of 45 EXHIBIT "B' CONSERVATION AND ZOO PARCELS DESCRIPTION 12 Agenda Item No. 12B Oct ber 27, 2009 Agenda item No. ge 21 of 149 Novemte 15.2 EXHIBIT "C" Page 17 of 45 'OVATION ASSIGNMENT OF This Assignment is entered into this _day of , 2005 by and between The Trust for Public Land, a California not- for -profit corporation, having a principal place of business at 1595 Bay Street SE, Suite # 3, St. Petersburg, Florida 33701 ( "Assignor' and -Lessor") and Colder County, a polMcal subdivision of the State of Florida, having an address of 3301 Tamiami Trail East, Naples, Florida 34112 ('Assignee" and the "County "), PRELIMINARY STATEMENT Reference is made to the following facts that constitute the background to this Assignment: WHEREAS, Assignor entered into that certain Lease Agreement signed on even date herewith (the "Lease "), with Naples Zoo, Inc., a Florida not - for - profit corporation ( "Lessee ") with respect to certain property consisting of 43.52 acres, more or less, and located in Collier County, Florida, as more fully described in the Lease (the "Demised Premises'); WHEREAS, pursuant to Article 13 of the Lease, Assignor may assign the Lease to the County; and WHEREAS, Assignor wishes to assign the Lease to Assignee and Assignee wishes to assume the Lease on the terms and conditions set forth herein. NOW THEREFORE, in consideration of the Lease and this Assignment, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows; 1. Assignor hereby assigns to Assignee all of its rights under the Lease, a complete copy of which, now in full force and effect, Is attached hereto as hl ' A. 2. This Assignment Is made such that Assignee is subject to ail of the terms and conditions of said Lease, none of which are waived by Lessee. 3. It is understood that this Assignment is an assignment of all of the rights that Assignor may now or at any time hereafter have in the Lease or against Lessee arising out of or under the Lease. 4. Assignee assumes all of the obligations of Assignor under the Lease, which obligations Assignee covenants and agrees with Lessee to perform and observe as if the Lease had been between Assignee, as lessor, and Lessee. This Assignment is a complete novation; therefore from and after She date of this Assignment Assignor is 13 Agenda Item No. 12B October 27, 2009 Pape 22 of 149 ®nde Item No. 10E ber 15. released from all Its duties, responsibilities, obligations and/or lability In conn"wembgWMl pfa5 this Lease. S. Upon execution and delivery of this Assignment by Assignor and Assignee, a copy of the executed Assignment wig be provided to Lessee and request that all notices referred to In the Lease to be sent to Lessor will be sent to County at the foflowing addresses. If to Assignor. Michael Dowling, Senior Property Management Specialist Real Estate Services Department Administration Building 3301 Tamiami Trail East Naples, Florida 34112 (238) 774 -8743 Telephone (239) 774 -8876 Facsimile With a copy to: Thomas Palmer Assistant County Attorney Office of the County Attorney Administration Building 3301 Tamiemi Trail East Naples, Florida 34112 (239) 774 -8400 Telephone (239) 774-0225 Facsimile If to Lessee:Naples Zoo, Inc. 1590 Goodiette -Frank Road Naples, Florida 34102 Attn. David Tetxleff, Director Telephone: (238) 262.5409 x. 107 Fax No.: (239) 262 -6866 With a copy to: Law Offices of Scott M. Ketchum, PA. Goodlette Professional Center 692 Goodlette Road North Naples, Florida 34102 Telephone: (239) 403 -0148 Fax No.: (239) 403 -0965 6. Assignor represents, to the best of its knowledge that no defaults exist under the Lease. 7. Provided this Assignment Is executed and delivered within 30 days after Assignor takes title to the Demised Premises, any rent payment received by Assignor will be paid over to Assignee; otherwise the rent payments wilt be prorated only for the month of the Assignment to Assignee, Assignor retaining any rents paid in months prior to the month of the Assignment. Executed as a sealed instrument as of the date first above written. 14 Dated Project/Acquisition ApVroved by: BCC: AS TO ASSIGNEE: DATED: ATTEST: DWIGHT E. BROCK. Civik , Deputy Clerk Approved as to form and legal suftlenW. Thomas Palmer Assistant County Attorney AS TO ASSIGNOR: DATED: WITNESSES: (Signature of first witness) (Printed Name of first witness) (Signature of second witness) (Printed Name of second witness) AS TO LESSEE: Lessee joins in this Assignment and does hereby acknowledge the transfer of obligations and rights from The Trust for Public Lard to Collier County, Florida Naples Zoo, Inc. By: David Tetzlaff, Executive Director Agenda Item No. 12B October 27, 2009 Ag ndaItem No. e 23 of 149 N Der 15, 2 0 g ?age 19 of 45 BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: FRED W. COYLE, CHAIRMAN THE TRUST FOR PUBLIC LAND BY: is Agenda Item No. 12B October 27, 2009 Agenda Item No a 24 of 149 November 15, 2005 EXHIBIT A Page 20 of 45 THIS LEASE AGREEMENT (this "Lease Agreement ") is entered into this day of . 2005, between NAPLES ZOO, INC., a Florida non -profit corporation, exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, whose mailing address is 1590 Goodlette -Frank Road, Naples, Florida 34102, hereinafter referred to as "Naples Zoo, Inc." or "LESSEE ", and THE TRUST FOR PUBLIC LAND, a California non- profit corporation, whose mailing address is 1595 Bay Street SE, Suite 03, St. Petersburg, Florida 33701, hereinafter referred to as "TPL" or "LESSOR ". WITNESSETH WHEREAS, Naples Zoo, Inc., is a lessee of certain assets of jungle Larry's Saferiland, Inc., an Ohio corporation, and operator of the fixtures, furnittm, buildings and animals that make up the Caribbean Gardens, The Zoo in Naples; and WHEREAS, during its history in Naples, Florida, the Zoo has strived to provide a quality experience for residents and visitors to the community. It has done this without drawing on public monies for any reason including seeking accreditation by the American Zoo and Aquarium Association, which it achieved in 2001. This status places Caribbean Gardens in the top 101% of facilities exhibiting wildlife in the Nation; and WHEREAS, TPL has acquired the property at the intersection of Goodlette -Frank Road and Golden Gate Parkway consisting of 166 acres, more or loss (the "Total Property "), from CHARLES FLEISCHMANN, Ill, as to an undivided 49.61% interest in said land, DORETTE L. FLEISCHMANN VIETS, as to an undivided 25.195% interest in said )and and DORETTE L. FLEISCHMANN VIETS, MELANIE FLEISCHMANN GARNE 7 and CHARLES FLEISCHMANN, V, as Co- Trustees under Article Seven B of the Last Will and Testament of Dorette K. Fleischmann, deceased, dated September 10, 1992, as to an undivided 25.195% interest in said land (the Total Property is more particularly described on Fxhibit "A" attached hereto and made a part hereof); and WHEREAS, TPL intends to convey portions of the Total Property to Collier County, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112; and WHEREAS, the voters of Collier County, in a November 2004 referendum, voted overwhelmingly to increase the ad valorem tax in order to raise $40 million in funding to acquire portions of the Total Property and to preserve the Caribbean Gardens, The Zoo in Naples, for future generations; and WHEREAS, TPL is entering into this Lease with Naples Zoo, Inc. in order to further the voters' objective and purpose to preserve the gardens and the 200; and WHEREAS, the County has agreed to accept an assignment of this Lease Agreement from TPL at the time the County is to acquire portions of the Total Property from TPL; and WHEREAS, Collier County has determined that it is in the best interest of the citizens of Collier County for this Lease Agreement to be assumed by the County and for the Naples Zoo, Inc. to continue to grow and develop for the enjoyment by, the education oC and the enhancement of the quality of life and the entertainment of the general public of Collier County and the State of Florida. THE PARTIES AGREE AS FOLLOWS: ARTICLE L Aetnked Pem es s Ud Permltted Uses a. LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR a 43.52 . acre +/- portion of the Total Property (including the roadway islands with signage) (the "Zoo and Gardens Parcel "), as more particularly described in Exhibit "({-t" which is attached hereto and ie Agenda Item No. 12B October 27, 2009 Agenda Item NoMe 25 of 149 trar Novem IS, 2200��}S made a part of this Lease, hereinafter also called the "Demised Premises ". An aerial shoi" @kpt 45 boundaries of the Zoo is attached as Exhibit "A -3." -- b. The Demised Premises shall be used and occupied as an active operation of the Caribbean Gardens and the Zoo in Naples (the "Zoo and Gardens ") open to the general public including botanical collection, animal and nature exhibits, as presently constituted and operated on the Demised Premises, in a manner substantially equal in quaBty or better than that established by Jungle Larry's Safariland, Inc. ( "Jungle Larry's "). LESSEE shall promote the continuing development of the Zoo and Gardens as a facility displaying wild animal species in appropriate settings for educational, recreational and wildlife conservation dedicated to the enhancement of the quality of life with the Collier County area. LESSEE shall utilize the Demised Premises for all reasonable purposes attendam to the primary purpose set forth above, including, without limitation, certain banquet, restaurant, concessions and food and beverage activities, as well as retail activities related to the purposes set forth herein. LESSEE, at its expense, shall maintain the facility in a quality at least comparable to that of the operation of Jungle Larry's on the date of this Agreement and may include expansion of the operation by providing new or other wild animals, nature exhibits, rides, food vendors, walking trails, educational demonstrations and entertainment. If additional educational, cultural and conservation programs are established by LESSEE, they shall be conducted on the Demised Premises in a manner intended to benefit the general public and the property and to maintain the Zoo and Gardens in a first - -class and accredited condition. It is understood and agreed that the buildings, private utilities (such as wells and septic systems and the pipes and lines associated therewith), signage and all other structures and improvenments on the Zoo and Gardens Parcel are the responsibility of LESSEE and, whether classified as fixtures or as non - fixture improvements to the Demised Premises, shall become the property of LESSOR at the expiration or earlier termination of this Lease, as more particularly described in Article 9(d) below. c. All operations on the Demised Premises will be conducted in an orderly and proper manner considering the nature of Zoo operations so as not to unreasonably annoy, disturb, endanger or be offensive to adjoining and/or near -by property owners. LESSEE will not do or permit to be done anything that may result in the creation, commission or maintenance of a nuisance, unsanitary condition, waste and/or injury on or to the Demised Premises. LESSEE -- will not do or permit to be done anything that materially adversely affects the effectiveness or accessibility of the drainage system, sewerage system, and /or fire hydrants, if any, or any other utility facilities. LESSEE will collect all garbage, debris and waste material, whether solid or liquid, arising out of the improvement, maintenance, occupancy or use of the Demised Premises, shall store same pending disposal in covered or other rigidly and sturdily constructed receptacles and dispose of same off the Demised Premises at regular intervals. Notwithstanding the foregoing, animal wastes may be composted on the Demised Premises for uses in the Gardens. LESSEE will provide and use such escape -proof enclosures in conformance with Zoo Industry Standards (as hereinafter defined), appropriate for the protection of patrons and visitors to the Zoo or Gardens. LESSEE shall use best efforts at all times to keep all wild animals within the confines of the Demised Premises. Excluding flood, fire, hurricanes and other forces of nature, beyond LESSEE's control, LESSEE shall exercise care to prevent damage to the botanical collections and rare natural foliage and plantings on the Demised Premises; shall exercise taro to prevent the water produced or used upon or flowing onto the Demised Premises from reaching levels of salinity which would in any way damage or impair any planting or foliage included in the botanical collection, as now or hereafta constituted; shall keep the Demised Premises adequately fenced, including against predator(s), trespasser(s) and vandal(s) and all other unauthorized entries. d. Under appropriate arrangements with the City of Maples, Florida, a Florida Municipal Corporation, LESSEE shall continua:, through the Lease Term, as it may be extended, to maintain, in the same manner as heretofore maintained, the current entrance sign (or its replacement), grass and other planting within the median island area of Seventeenth Street North, also known as Fleischmann Boulevard. Said median island area (approx. 0.02 acres + / -) is described in Exhibit A -1 as a part of the Demised Premises. LESSEE shall have reasonable access to all electrical meters, electrical lines and water lines located an the adjacent property currently known as the Naples Preserve that supply the sign and its landscaping. LESSEE agrees LESSOR may erect and maintain a sign or other appropriate marker in a prominent location on the Demised Premises, at a location agreeable to LESSEE and LESSOR, visible from a public -- road, bearing information indicating the Demised Promises is protected by LESSOR (and its successor). LESSOR shall determine the wording of the sign or marker. LESSOR shall be responsible for the costs of erecting and maintaining such sign or marker. if the sign is not 17 Agenda Item No. 12B October 27, 2009 Agenda Item No. 10Ege 26 of 149 Mvember 15. 2005 properly maintained in good condition. LESSEE will notify LESSOR. If the conditidWgeaaW45 corrected within sixty (60) days after notice, LESSEE may remove the sign. e. LESSEE understands and agrees that the portion of the Demised Premises described on the attached Exhibit "A -2" shall be used by LESSEE for parking of its guests and invitees, and, with twelve (12) of the spaces being Irate available for parking by the general public in order to access the Gordon River over and through other adjacent lands of LESSOR. LESSEE shall maintain the property described on Exhibit "A -2" in the same manner and to the same extent as described herein for the Demised Premises. In the future, if LESSOR requires improvements to this parking area, which improvements shall be limited to paving or other permeable surface (rucb es crushed shells or marl), LESSOR and LESSEE shall investigate the relative costs of the improvements and future costs of maintenance. LESSEE agrees to maintain the improved parking surface and to share 50:50 with LESSOR in the costs of such improvements and maintenance. An aerial showing the shared parking area is attached as Exhibit "A -3:' ARTICLE 2. Ted of Lease a, Terns. Unless otherwise terminated pursuant to the provisions hereof, LESSEE shall have and hold the Demised Premise for a term of Ten (10) years, commencing on 2005 ( "Lease Term Commencement Date ") and ending , 2015, unless earlier terminated pursuant to the terms hereof (the "Lease Term "). b. Renewal. LESSEE is granted the option, provided it is not then in default of any of the provisions of this Lease, to renew same for four (4) separate, additional and sequerdial terms of ten (10) years, under the same terms and conditions, as provided herein, except as to the base rental amount, which is to be adjusted periodically as provided herein, by delivering written notice of LESSEE'S unconditional intention to renew to the LESSOR at least two (2) years prior to the expiration of the then existing Lease Term or renewal period. Said notice shall be effective upon actual receipt by the LESSOR. Failure of LESSEE to provide such written notice shall be deemed conclusive evidence of LESSEE's waiver of its option to renew. Each 10 -year extension shall be a separate decision (i.e. the second option to extend does not take effect until the end of the first renewal period.) Notwithstanding the foregoing, each such renewal term trust first be approved by a majority vote of the Collier County Board of County Cormnissioners prior to each respective renewal taking place. c. LESSEE's Right to Terminate. Upon two (2) year's prior written notice to LESSOR, given during the Lease Terns or any extension thereof then in of oct, LESSEE may, without cause, elect to terminate this Least Agreement. If LESSEE so elects, the provisions of ARTICLE 18 shall govern. d. LESSOR's Right to Terminate. Upon two (2) year's prior written notice to LESSEE, given during the Lease Term or any extension thereof then in effect, LESSOR may, without cause, elect to terminate this Lease Agreement. If LESSOR so elects, LESSOR agrees to pay to LESSEE_ at the time of termination, the unamortized cost of any improvement made by LESSEE to the Demised Premises approved by LESSOR in accordance with ARTICLE 9 hereof based on a ten year amortization period. LESSEE agrees that the payment of such unamortized costs of such improvements will be based on adequate documentation of the costs of such improvements and shall not include the value of donated materials and /or labor. No improvements will be made during the two -year Disposition Period (as herein defined) after notice is given. ARTICLE 3. $gam LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the following sums; L Base Rent of Two Hundred Thirty-five Thousand Five Hundred ($235,500.00) Dollars ( "Base Rent ") per annum in equal monthly installments of Nineteen Thousand Six Hundred Twenty - Five Dollars and 00 /100 Cents ($19,623.00) each, all in advance on the first day of every calendar month during the term hereof. if the terms of this Lease commence or end on a day other than the first day of the month, LESSEE shall pay base rent equal to one thirtieth (030th) of the monthly base rent multiplied by the number of rental days of such fractional month. _ b. LESSEE will also be responsible for the payment of additional rent as provided for in ARTICLE 4 of this Lease. is Agenda Item No. 12B October 27, 2009 Agenda Item No.q�, e 27 of 149 November 15. 20155' c. Having taken into consideration those benefits provided by LESSEE, as services Wftb2jfof 45 rent, as discussed in ARTICLE 3 e. below, and it the eateat th t the fo�wing formula would LESSOR. generate rental la estcea of the Base Rea t LESSEE shall pay the excess rental amount to -^- LESSOR 1. During the Lease Term, as it may be renewed from time to time, LESSEE shall pay to LESSOR the following percentages of Gross Receipts from Services (as herein defined) performed or rendered and Gross Receipts from Sales (as herein defined) made by LESSEE on the Demised Premises: i. Six percent are ::ret _cv-= `_'undred Fiwv Thousand Dollars ($750,000.00) of such gross receipts; and ii. Seven percent (7 %) of the gross receipts in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00). As examples of when the Percentage Rent would or would not be paid am as follows If the Gross Receipts from Sales and Services (as a total amount) totaled $3,000,000, the following calculation would be made: 6% of S730,000- S 45,000 7°% of $2,250,000 -SI 57,500 Total- $202,500 which is less than the Base Rent of $235,500 so no Percentage Rent is due, if the Gross Receipts from Sales and Services (as a total amount) totaled $4,000,000, the following calculation would be made, 6°% of $750,000 = $ 45,000 7°% of $3,250,000 — $227.500 Total - $272,500 which is $37,000 more than the Base Rent of $235,500 so $37,000 in Percentage Rent would be due in addition to the Base Rent. 2. "Gross Receipts from Services" shall include all revenue realized by LESSEE from Operations upon the Demised Premises, including but not limited to: parking fees, gate admissions, all in -park charges (rides, exhibits, shows or other amusements) and /or for other services made available to patrons; also revenues from radio and/or television shows or programs originating from the Demised Premises; motion pictures or other photographic items produced on the Demised Premises; catering of parties and similar activities on the Demised Premises, and fees for rental of area within the Demised Premises for such parties and any other revenue produced from the Demised Premises other than from Gross Receipts from Sales. 3. "Gross Receipts from Sales" shall include the gross revenue from sales of food, beverages, souvenirs, and all other merchandise or commodities on or sold from (such as by means of the Internet) the Demised Premises, whether made or produced thereon or purchased off -site for resale on the Demised Premises. Such commodities also include the sales through vending machines or by concessionaires (limited to those amounts actually paid over to LESSEE). Such Gross Receipts from Sales also shall include the sales of livestock produced by breeding on the Demised Premises but shall be off -set by any portion of such livestock proceeds that are utilized for the transportation or purchase of other animals and/or livestock within twelve (12) calendar months of the actual receipt of such income. In no event will the proceeds of the sale of any livestock or animals which occurs during the Disposition Period (as hereinafter defined in Article 18) be utilized in the calculation of any rent payment due LESSOR. 4. Gross Receipts from Services and Gross Receipts from Sales shall exclude any refunds or cash register adjustments made by LESSEE in the normal course of business, and shall exclude sales and/or other taxes collected by LESSEE from customers of admitteee and remitted by LESSEE to the State of Florida. 5. Gross Receipts from Services and Gross Receipts from Sales shall also exclude any revenue derived by LESSEE, in its capacity as a non -profit corporation, resulting from fund- raising of mis attendant to the operation of the Zoo and Gardens provided all such fundraised funds are used solely by LESSEE in the furtherance of the educational, cultural, conservation or -- public purposes of the Zoo and Gardens such as capital improvement of facilities, exhibits, animal collections, endowments for the upkeep of such additional capital improvements; care and feeding of the animals, protection of the botanical collection and preservation of wildlife habitat, reasonable personnel expenses and administrative costs approved by the LESSEE's 19 Agenda Item No. 12B October 27, 2009 Page 28 of 149 Aoenda Item No. Ior- Board of Directors. It is understood by LESSEE that LESSOR or its successorf r ti�m,of45 Collier County, shall have no obligation to provide fiords and/or any in -kind consideration for the expansion, maintenance, repair, or operation of the Zoo and/or Gardens, or otherwise. 6. Settlements with respect to the percentage rent payments accruing hereunder shall be made one time annually. Settlements shall be made within twenty -one (21) days following the close of each Lease Year (hereinafdea, each Lease Year is defined as the "Operating Period ".) Settlements shall be supported by LESSEE's statements of all receipts and revenues for the Operating Period being settled and by copies of the monthly sales tax reports submitted to the State of Florida. If the percentage rent payment calculated at the end of each Operating Period exceeds the monthly Base Rent, LESSEE shall remit such difference to LESSOR within ten (10) business days. If the percentage rent payment calculated at the end of each Operating Period is less than the monthly Bast Rent, no payment will be due to LESSOR other than the Base Rent. LESSOR's accountants shall have full access, at all reasonable times and places in Naples, Florida, to the books, cash registers and accounts of LESSEE pertaining to the operation of the Demised Premises (including any fundraising) for the purposes of verifying gross receipts and revenues realized by LESSEE. All such items shall be maintained and retained by LESSEE on the Demised Premises. d. LESSOR has the right to review the Base Rent provisions at the end of each five -year period during the Lease Term and each renewal term thereof. If LESSOR determines that the Base Rent is not keeping pace with inflation or the applicable consumer price index, and LESSOR determines in its sole but reasonable discretion that the operation of the Zoo and Gardens is generating sufficiently more revenue than at the commencement of the five year period then just past, LESSOR may increase the Base Rent by no more than the total increase in the applicable consumer price index over the previous five year period, e. It is understood by LESSEE that LESSOR has and will continue, in its determination of Base Rent or any increase in Base Rent, to take into account the benefits provided by LESSEE to the citizens of Collier County and the general public, considered by LESSEE and LESSOR as services in lieu of rent. LESSEE has provided LESSOR with an extensive list of the benefits it has provided to the citizens of Collier County and the general public. LESSEE shall continue to provide the items listed below (1 through 7, inclusive) during the Term of this Lease, except to the extent, if any, that LESSOR may from time -to -time agree only by amendment to this Agreement that the respective benefit can be modified or eliminated. Each such Amendment shall specifically state that it is amending the respective sub - paragraphs) of Article THREE, paragraph (e) of this Agreement. Those benefits must be continued because each is a material consideration for this Lease. Such benefits, which must meet or exceed the 2005 baseline programs, (unless otherwise modified by agreement of the parties) are the following: (1) LESSEE offers a variety of discounts to local residents. These include opportunities throughout the year such as free admission for children Friday through Monday around school holidays. In addition, the zoo now offers Collier residents (adults and children) completely free admission at least one Saturday per month when entering before I 1 a.m. (2) For residents, LESSEE offers a 50% discount on family memberships. The membership includes up to 2 adults and all dependent children living in the same household up to age 21. (3) LESSEE offers complimentary admission and/or deeply discounted rates to various children's groups, Collier County school groups, and County and Municipal parks and recreation program participates. (4) LESSEE employs full and part -time employees. Such employees have access to health care benefits paid in whole or in part by LESSEE. A life insurance policy is provided to employees at no charge. Dental insurance is also available through a group plan. Benefit programs for employees will be consistent with the Zoo Industry Standards (as hereinafter defined). (5) LESSEE provides deeply discounted admissions for school children visiting the zoo. The zoo recently dedicated a position to group sales and is enhancing its onsite education to better service the growing need for curriculum- fitlfilling field trips. (6) LESSEE also contributes to the local economy by using many local services for construction, printing, and technology. In regard to economic impact, over 700/9 of zoo visitors in March 2005 came from over ISO miles away including all 50 states and 20 foreign countries thus contributing to the local economy by contributing to overnight stays. 20 Agenda Item No. 12B October 27, 2009 Agenda Item No. Fo@9e 29 of 14 9 )November 15, 2005 Page 25 of 46 (7) Locally, LESSEE will continue to provide an exhibit for best management practices for Backyard Wildlife Habitat to ills strate to guests how they can provide elements beneficial to songbirds, butterflies and other wildlife whether they have a condominium balcony, back lawn, or acres of space. (8) LESSEE will support local and international conservation. LESSEE will promote sustainable practices to its guests and sphere of influence. LESSEE will also cooperate WM other conservation organizations to promote like- minded efforts. f, Base; Rent will be aLet;,d pro -rata for any days that thc Zoc and/or Gardens am not open to the public for business as a result of Force Majeure, as defined in Article 19 i. below. Provided, however, LESSEE agrees, in the event of a Force Majeure, to work diligently to correct such problem and re -open for business as soon as reasonably possible. ARTICLE 4. Addidonal Rent (Other Exoegses and Cbarttes) This is a Triple Net (Net Net Net) Lease. LESSEE shall pay all costs associated with the Demised Premises including and not limited to, all current and/or future applicable taxes, permits, approvals, licenses necessary for its operation, trash removal services and any and all utility charges. Utility charges shall include and not be limited to electricity, light, heat, air conditioning, power, potable water, irrigation water, sewer and telephone and all other communication services, used, rendered or supplied thereupon or in connection with the Demised Premises. ARTICLE 5. Title MxUerVPermatW EacnmbrAncee LESSOR has advised LESSEE that as of the Effective Date of this Lease Agreement, the Demised Premises are, and as of the Lease Term Commencement Date, the Demised Premises will be, subject to those matters set forth in Exhibit "13" attached hereto (the "Permitted Encumbrances "). LESSEE will at all times comply with the Permitted Encumbrances in all activities relating to the Zoo and Gardens. In addition, LESSEE takes the Demised Premises subject to, and admits notice of, the existence of any and all water (potable and /or irrigation), wastewater, storm water, sewer, gas, electric and other utility limos, wires and other facilities or capital improvements, whether recorded or unrecorded, located beneath, upon or above the Demised Premises, all of which are deemed to be Permitted Encumbrance. The existence of same will not constitute any breach of covenant on the part of LESSOR, nor will LESSEE be entitled to require the removal of any thereof. LESSOR reserves the right, for itself or any other owner of such utility lines, wires, and other facilities and tangible things, at all times to have reasonable access thereto for the purposes of operation, maintenance, repair, replacement or removal of any thereof, provided, however, that upon completion of any such work for which access is obtained, LESSOR or such other utility owner shall, at no cost to LESSEE, restore the affected improvements and/or surface of the land to substantially the condition in which it or they existed immediately prior to access and work, to the extent that the restoration to such condition is reasonably practicable. If any such work needs to be completed in the area of animal habitats or exhibits, the utility owner will be required by LESSEE, prior to entrance, to strictly abide by any instructions or demands of and cooperate with, LESSEE with respect to any activity that may disturb the animals. Otherwise, the parties acknowledge that the terms of any existing easement document will govern the activities of such utility owner. ARTICLE 6. Accessibility and Admissions a. Accessibility. LESSEE will operate the Zoo and Gardens at reasonable hours year round excepting historical holidays and forced closures caused by Force Majeure (as defined in Article 19 i. below) with the goal of providing broad access to the Zoo and Gardens for County residents and the general public, b. Admissions. LESSEE will have exclusive authority to set admission fees and other user fees for the Zoo and Gardens and to budget and expend the revenues from such fees. -- ARTICLE 7. Zoo Oder Eons LESSEE will maintain the Zoo and Gardens as a permanent and general collection of animals and related horticulture as well as the botanical garden collection on the Demised 21 Agenda Item No. 12B October 27, 2009 Pape 30 of 149 Apanda Item No. t Or November 15. 2005 Premises. LESSEE will at all times cause the Zoo and Gardens to be operated in acd2trdtR&-of 45 with the following performance standards: a. LESSEE will maintain membership in and accreditation by the American Zoo and Aquarium Association, or its successor or any other national organization having responsibility for the accreditation of zoological facilities ( "AZA"). Notwithstanding the foregoing, if such accreditation in such organization is not possible due to requirements that cannot reasonably be met by the Zoo and Gardens (including, for example, the size and areas needed to maintain certain habitats, the requirements to include certain animals that are beyond the financial means to provide (panda environments; elephant herd habitats, penguin or other controlled climate species) LESSEE, in consultation with LESSOR, will determine what other organization governing zoo operations will be the new entity providing certification or accreditation of LESSEE's operation of the Zoo and Gardens. b. LESSEE will maintain and operate the Zoo and Gardens in a manner consistent with the then - existing Zoo Industry Standards (as hereinafter defined). LESSEE may, at its discretion, loan any animal for breeding purposes and, further, may dispose of any animal deemed by LESSEE to be surplus. Reports of deceased animals, animals on loan, or animals deemed to be surplus will be kept by LESSEE as part of its animal inventory, available for review upon reasonable prior request by LESSOR. Notwithstanding the foregoing, if such accreditation in such organizations is not possible because of the requirements discussed in Article 7.& above, the LESSEE and LESSOR will determine reasonable alternative standards for the Zoo maintenance and operation, such as the U.S, Department of Agriculture standards. c. LESSEE will provide non - discriminatory access to the public. d. LESSEE will continue the Zoo and Garden's educational and conservation programming. e. LESSEE will hire and employ such personnel as will, in LESSEE's judgment, be necessary to operate, manage and maintain the Zoo and Gardens in accordance with the provisions of this Lease Agreement. LESSEE will have sole responsibility to determine its policies and practices. f. LESSEE will hold title, or have contractual rights under animal loans, to all existing and future zoo animals for the benefit of the public for scientific, conservation, educational and recreational purposes. LESSEE will, subject to available resources, purchase or otherwise acquire additional animals for the Zoo and Gardens. g. LESSEE will properly care for, feed, supervise and maintain all of the zoological and botanical collection at the Zoo and Gardens in a clean and sanitary condition in accordance with Zoo Industry Standards. h. LESSEE agrees to maintain and preserve (to the extent possible) the historic botanical specimens that remain on the Demised Premises from the original Nehrling collection. The original Nehrling botanical gardens and residence occupied approximately thirteen (13) acres of the Demised Premises (the " Nehrling Area "), The footprint of the Nehrling Area was extensively altered during the ownership by the Fleischmarnt family by the installation of the paths and the monkey pond. However, some of the original botanical specimens planted by Nehrling have survived and have been maintained by LESSEE. LESSOR agrees that the remaining Nehrling Area will not be designated as an historic preservation site without the consent of LESSEE, which consent will not unreasonably be withheld. Before agreeing to such designation, LESSOR will consider any unreasonable hardship on the operation of the Zoo and Gardens that an historic designation may cause. The parties agree that whether a property is or is not designated as a historical preservation site is not an exercise of LESSOR'S police powers. ARTICLE 8. Malnwriance and Repair a. LESSEE shall, at its sole cost and expense, maintain and repair the Demised Promises on a regular basis from time to time in order to always and continuously keep the Zoo and Gardens in good working order, in a safe and orderly condition and in substantial compliance with Zoo Industry Standards (as hereinafter defined). If said Demised Premises are not in such compliance in the reasonable opinion of LESSOR, as LESSOR may be advised by the U.S. Department of Agriculture Inspector, LESSEE will be so advised in writing. If corrective action is not begun within thirty (30) days of the receipt of such notice and prosecuted diligently until 22 Agenda Item No. 12B • October 27, 2009 Aoenda Item No. d4�.,e 31 of 149 November 15. �ob� corrective action is completed, LESSOR my cause the same to be corrected and LESSEIIiIMWlef 45 assume and pay sU such reasonable maintenance and repair costs, and such costs shall constitute ADDITIONAL RENT which shall be paid by LESSEE within ten (10) days of receipt of written -- notice of costs incurred by LESSOR. b. LESSEE, at no cost or expense to LESSOR, shall repair all damage to the Demised Premises caused by LESSEE, its employees, agent(s), independent contractor(s), guest(s), invitee(s), licensee(s), patron(s), and/or trespasser(s). c. Zoo Industry Standards" refers to the practices, methods, standards, and/or acts that are used by a significant portion of the zoological facilities maintaining accreditation by the AZA (as such facilities may be located in major cities of the United States) in the operation, maintenariM development, redevelopment of zoo facilities and animal collections, and which, in the exercise of reasonable judgment in the light of facts actually known, or reasonably should have been known, at the time a decision was made, would reasonably have been expected to accomplish the desired result at lowest reasonable cost, consistent with licensing and regulatory considerations, environmental considerations, reliability, safety and expediency. Zoo Industry Standards are not intended to be limited to the optimum practices, methods, standards or acts, to the exclusion of all other, but rather to be an accepted range of practices, methods, standards or acts employed by constructors, owner, or operators of facilities similar in size, locale and operation characteristics to the Zoo and Gardens. ARTICLE 9. Moditfeatlons Additions I>:gJL4ne and I orovem ag a. Prior to making any significant modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any existing improvements thereon (significant is defined as projects costing in excess of $25,000 in the aggregate, during any 365 - day tirree frame, to complete; such amount being subject to adjustment based on changes in the Consumer Price Index), LESSEE must provide to LESSOR all proposals and plans for alterations, improvements, modifications, additions and/or replacements to the Demised Premises for LESSOR'S written approval, specifying in writing and in meaningful detail, the nature and extent of the desired alteration, improvement, modification, addition, or replacement, along with the contemplated starting and completion time for each such project. LESSOR or its designee will then have sixty (60) days after receipt of such proposals or plans within which to approve or deny the respective project in writing. LESSOR shall not unreasonably withhold its consent to required or appropriate alterations, improvements, modifications, additions, or replacements proposed by LESSEE. b. LESSEE covenants and agrees in connection with any maintenance, repair work, erection, construction, improvement, addition, replacement or alteration of any such project, to observe and comply with all then existing applicable laws, ordinance, rules, regulations, and requirements of the United States of America, State of Florida, County of Collier, and any and all other governmental agencies with jurisdiction over such work. c. LESSEE shall pay the entire cost of any new construction upon the Demised Premises or the alteration of any structure, landscaping or impoundment situated theroon, as well as the cost of any equipment required in connection with any operations to be conducted by LESSEE. Prior to any modification, addition, alteration, replacement or improvement to the Demised Promises approved by LESSOR, LESSEE shall provide either (1) reasonable evidence acceptable to LESSOR that LESSEE has available sufficient funds, either on hand, or good faith pledges of contributions and/or grants, to ensure the corripletion of the proposed project and full and timely payment of debt service and capital expenses or (2) a construction bond in it sufficient sum to cover the costs of the proposed project should LESSEE fail to complete it once started. In addition, prior to undertaking any improvements in excess of $500,000 in hard costs, LESSEE will contractually require the construction contractor(s) to provide separate payment and performance bonds in accordance with then applicable law. d. All alterations, improvements and additions, etc., including non - fixture improvements, to said Demised Premises are and shall continue to be property of LESSEE. Prior to the termination of this Lease or prior to the termination of any renewal term hereof, or the expiration of this Lease: L. if LESSOR so requests, LESSEE shall promptly remove the additions, improvements, aherations, fixtures and installations which were placed in, on, or upon the Demised Premises by LESSEE, and repair any damage occasioned to the Demised Premises by such removal, and, as 23 Agenda Item No. 12B October 27, 2009 Astenda Item No. ToVe 32 of 149 November 15. 2005 long as such termination is not due to the default of LESSEE, LESSOR agrees to pay EM 45 the greater of (1) the cost of removal or (2) the unamottized value of the improvements as set forth in Article 2 d. above. ii. alternatively, if LESSOR elects to retain ownership of some or ell additions, improvements, alterations, fixtures and installations which were placed in, on, or upon the Demised Premises by LESSEE, and, as long as such termination is not due to the default of LESSEE, LESSOR agrees to pay (1) for the unamortizod value of the improvements it will retain as set forth in Article 2 d. above and (2) the cost of removal of the improvements it elects not to retain. iii. if such termination is due to the default of LESSEE, LESSEE shall not receive any payments for improvements, and, if LESSOR elects to have the additions, improvements, alterations, fixtures and installations which were placed in, on, or upon the Demised Premises by LESSEE removed, LESSEE shall be responsible for the costs of removal. e. LESSEE will comply with any and all requirements of the Americans with Disabilities Act, 42 U.S.C. See. 12101, et seq., ( "ADA "), including, but not limited to, the removal of all structural barriers, the accessibility of programs, services and goods, the provision of all auxiliary aids and services, and the modification of policies, practices and procedures as and when practicable. f. Notwithstanding the foregoing, LESSEE shall be entitled to make the following modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any existing improvements thereon without prior approval of LESSOR (although notice will be given for informational purposes): 1. those required for the routine day-to -day maintenance operations of the Zoo and/or Gardens which do not, in the aggregate, cost more than $25,000 in any 365 -day time frame to complete (such amount being subject to adjustment periodically based upon changes in the Consumer Price Index for Southwest Florida).; 2, those required by the AZA; 3. those required by emergency situations where the time required for approval by LESSOR could endanger the well -being of the Zoo animals and/or employees, invitees, patrons or guests; and /or 4. all other modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any existing improvements thereon which do not, in the aggregate, cost more than 525,000 in any 365 -day time frame to complete (such amount being subject to adjustment periodically based upon changes in the Consumer Price Index for Southwest Florida). ARTICLE 10. Extent cL GLiens LESSEE is required to and shall keep the Demised Premises free from any liens arising out of any work perfcumed, materials furnished or obilgationa incurred by or for LESSEE and any other liens and/or any other encumbrance(s) placed thereon during the term of this Lease, or any extensions hereof. All individuals and/or entities to whom these presents may come are put upon notice that no interest of the LESSOR in the Demised Premises shall be subject to liens for improvements made by the LESSEE, also liens for improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on any interest of the LESSOR in the Demised Premises or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713.10, Florida Statutes. ARTICLE 11, Casualty alto end Cqri¢till,otion a. Casualty. if the Zoo and/or Gardens are destroyed, rendered substantially untenantable, or damaged to any material extent, as reasonably determined by LESSEE and LESSOR, by fire or other casualty, and LESSEE elects not to repair or replace the improvements or personal property, then LESSEE or LESSOR may terminate this Lease Agreement by providing notice to the other party within ninety (90) days after the occurrence of such casualty. The termination will be effective on the ninetieth (90th) day after such fire or other casualty, unless extended by mutual written agreement of LESSOR and LESSEE. During the period between the date of such casualty and the date of termination, LESSEE will close the Zoo and Gardens or affected portions thereof as trey be necessary or appropriate to protect the health and safety of the patrons and/or visitors to the Zoo and/or Gardens and of the Zoo animals. If this Lease Agreement is not terminated as set forth herein, or if the Zoo and/or Gardens are damaged to a less than material extent, as reasonably determined by LESSEE and LESSOR, LESSEE will proceed with reasonable diligence, at no cost or expense to LESSOR, to rebuild and repair the Zoo and/or Gardens to substantially the condition as existed prior to the casualty. Notwithstanding any such 24 Agenda Item No, 12B October 27, 2009 Agenda Item No. '91ge 33 of 149 tVovamber 15. 2 termination, LESSEE shall have the two -year Disposition Period (as defined in Article l f b@h Wpt 45 to rernove its animals and any personal property, understanding that such relocation will take longer than 90 days. b. Condemnation, Promptly upon becoming aware of the commencement of any effort to acquire any part of the Demised Promises by a condemning authority, LESSOR will give notice to LESSEE thereof. If all or a substantial part (as reasonably determined by LESSOR and LESSEE) of the Zoo and Gardens are taken through a condemnation, then LESSEE or LESSOR may terminate this Lease Agreement by giving notice to the other party hereto within sixty (60) days after the date LESSOR is served with condannation pleadings. If this Lease Agreement is so terminated, all compensation awar.led for any condemnation of the Zoo and/or Gardens will be allocated between LESSEE and LESSOR, as their interests may then appear and be valued by the condemning authority or by jury. If this Lease is not so terminated as provided above, the portion of compensation awarded for the part of the land taken will be the property of LESSOR and the portion of compensation awarded for the part of the leasehold, improvements, fixtures, or personal property of LESSEE shall be paid over to LESSEE for the restoration of the remaining portion of the Zoo and/or Gardens. ARTICLE 12, Acem to Dtaftd Pramiaea 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 Demised Premises or any part thereof during business hours, or such other times with the consent of LESSEE, to inspect the Zoo and/or Gardens and/or to verify compliance with the terms of this Lease Agreement and /or for the purpose of examining the same and making any required repairs not being timely completed by LESSEE, as more particularly described in ARTICLE 8, above. LESSOR appoints Collier County's Real Estate Services Department's Property Manager as the authorized agent who will have the specific responsibility as LESSEE's primary contact person for matters under this Lease Agreement. LESSEE appoints its Executive Director and the President of LESSEE's Board of Directors (or their successors or designees) as the designated agents for LESSEE. LESSEE agrees to provide reasonable advance notice of LESSEE'S Board meetings by telephone or o-mail to LESSOR's representative. ARTICLE 13. �ssl and Stlblsttln¢ a. LESSEE shall not assign this Lease Agreement nor attempt to sublet the whole or any part of the Demised Premises, or permit any other person(s) to occupy same without the expressed prior written consent of LESSOR. Any such assignment or subletting, even with the consent of LESSOR, shall not relieve LESSEE from liability for payment of rent and/or other stuns herein provided or from the obligation to keep and be bound by this Lease Agreement, unless expressly released from this Lease Agreement in writing by LESSOR The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease, or to be a consent to the assignment of this Lease or subletting of the Demised Premises. Any such attempt shall be void ab inido. LESSEE's contracts and occupancy agreements with concessionaires on the Demised Premises will not be deemed to be assignments or subleases of this Lease Agreement and are not prohibited by this Article. The words "assign" or "sublet" include any transfer of any type or description whatsoever. No such transfer shall be a novation unless a novation is expressly agreed to by LESSOR. b. LESSOR is specifically authorized and permitted to assign this Lease Agreement and its interest as landlord under this Lease Agreement to Collier County or any other agency of the County. After such assignment, the Trust for Public Land will be released from all liability arising after the date of the assignment. c. LESSEE is specifically authorized and permitted to license portions of the Demised Premises to vendors servicing the Demised Premises and other organizations such as conservation groups and federal programs involved in the restoration of certain plant species and/or wildlife. d. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. ARTICLE 14. INDEMNITY AND DEFENSE OF CLAIMS 25 Agenda Item No. 12B ` October 27, 2009 Aqwda Item NCPW 34 of 149 Novornber 15. 2005 a. IN CONSIDERATION OF TEN ' DOLLARS ($10.00), THE RECEIPTa9kNW 45 SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, LESSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR, ITS AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY (STATUTORY OR OTHERWISE), DAMAGES, CLAIMS, SUITS, DEMANDS, JUDGMENTS. COSTS, INTEREST AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES AND DISBURSEMENTS BOTH AT TRIAL AND ALL APPELLATE LEVELS) ARISING, DIRECTLY OR INDIRECTLY, FROM ANY INJURY TO, OR DEATH OF, ANY PERSON OR PERSONS OR DAMAGE TO PROPERTY (INCLUDING LOSS OF USE THEREOF) RELATED TO (A) LESSEE'S USE OF THE DEMISED PREMISES, (B) ANY WORK OR THING WHATSOEVER DONE, OR ANY CONDITION CREATED (OTHER THAN BY LESSOR, ITS EMPLOYEES, AGENTS OF CONTRACTORS) BY OR ON BEHALF OF LESSEE IN OR ABOUT THE DEMISED PREMISES, (C) ANY CONDITION OF THE DEMISED PREMISES DUE TO OR RESULTING FROM ANY ACTION OR INACTION BY LESSEE IN THE PERFORMANCE OF LESSEE'S OBLIGATIONS UNDER THIS LEASE AGREEMENT OR OTHERWISE, (D) ANY ACT, OMISSION OR NEGLIGENCE OF LESSEE OR ITS AGENTS, CONTRACTORS, EMPLOYERS, SUBTENANTS. LICENSEES OR INVITEES OR (E) AS A RESULT OF THE PRESENCE OF HAZARDOUS MATERIALS ON THE DEMISED PREMISES IN VIOLATION OF ARTICLE 20 HEREUNDER. b. LESSOR SHALL NOT BE LIABLE FOR ANY INJURY OR DAMAGE TO PERSON OR PROPERTY CAUSED BY THE ELEMENTS OR BY ANY OTHER PERSONS IN THE DEMISED PREMISES, OR FROM THE STREET OR SUB - SURFACE, OR FROM ANY OTHER PLACE, OR FOR ANY INTERFERENCE CAUSED BY OPERATIONS BY OR FOR A GOVERNMENTAL AUTHORITY IN CONSTRUCTION OF ANY PUBLIC OR QUASI - PUBLIC WORKS OR OTHERWISE. c. LESSOR SHALL NOT BE LIABLE FOR ANY DAMAGES TO OR LOSS OF, INCLUDING LOSS DUE TO THEFT, ANY PROPERTY, OCCURRING ON THE DEMISED PREMISES OR ANY PART THEREOF, AND LESSEE AGREES TO HOLD LESSOR HARMLESS FROM ANY CLAIMS FOR DAMAGES, EXEPT WHERE SUCH DAMAGE OR INJURY IS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR ITS OFFICERS, EMPLOYEES OR AGENTS, ALL OF WHOM WHILE ACTING WITHIN THE SCOPE OF THEIR RESPECTIVE AUTHORITY. d. In case any action or proceeding is brought against LESSOR by reason of any one or more of such indemnified claims, LESSEE shall pay all costs, attorneys' fees, expenses and liabilities resulting therefrom and shall defend such action or proceeding if LESSOR shall so request, at LESSEE'S expense, by counsel reasonably satisfactory to LESSOR. It is specifically agreed however, that LESSOR may at its own cast and expense participate in the legal defense of such claim, with legal counsel of its choosing. e. in no event will any elected official or employee of the County or any director, officer or employee of LESSOR have any personal liability for actions taken by such individual in good faith in the course of carrying out his or her responsibilities on behalf of the County, or LESSOR, pursuant to this Lease Agreement. ARTICLE 15. 1 su anc a. LESSEE shall provide and maintain $eneral liability and property liability insurance policy(ies), approved in writing by LESSOR and the Collier County Risk Management Department, for not less than Three Million Dollars and NolCems ($3,000,000.00) combined single limits during the term of this Lease Agreement. If such amounts are less than the Zoo Industry Standards or good insurance industry practice would require, LESSOR reserves the right to increase these insurance limits by providing LESSEE with at least sixty (60) days' advance notice to do so. b. In addition, LESSEE shall provide and maintain Worker's Compensation Insurance covering all employees meeting the then existing Statutory Limits in compliance with the applicable state and federal laws. The coverage shall include Employe>as Liability with a minimum limit of One Hundred Thousand Dollars and NoJt00 Cents ($100,000.00) per each accident. If such amounts art less than the Zoo Industry Standards or 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. 26 Agenda Item No. 12B October 27, 2009 Agenda Item No. Rage 35 of 149 November 15. 2005 Pape 31 of 45 c. LESSEE shall also maintain standard fire and extended coverage insurance on the additions and improvements located an the Demised Premises and all of LESSEE's property located on or in the Demised Premises including, without limitation, furniture, equipment, fittings, installations, fixtures (including removable trade fixtures), personal property and supplies, in an amount not less than the then- existing full replacement value. d. Business Automobile Liability Insurance, and Business Boat Liability Insurance, for automobiles and boats used by LESSEE in the course of its performance under this Lease Agreement, including Employer's Non - Ownership and Hired Auto Coverage, each said policy in amounts of $1,000,000 combined single limit per occurrence. If such amounts are less than the Zoo Industry Standards or good insurance practice would require, LESSOR. reserves the right to increase these insurance limits by providing LESSEE with at least sixty (60) days' advance notice to do so. e. Automobile Physical Damage Insurance covering all vehicles used on or about the Zoo and Gardens and all of LESSEE's other owned or leased vehicles for Collision and Other Than Collision Perils within a maximum deductible of 51,000 per accident. f All of the above- described insurance policy(ies) shall list and continuously maintain LESSOR, as well as its Officers, employees, representatives and agents, as additional insureds 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, 33962, for approval prior to the commencement of this Lease Agreement; and shall include a provision requiring not less than ten (10) days prior written notice to LESSOR in the event of cancellation or changes in policy(ies) coverage, If sucb amounts are less than the Zoo Industry Standards or good insurance practice would require, LESSOR reserves the right to reasonably amend their insurance requirements by issuance of notice in writing to LESSEE, whereupon receipt of such notice LESSEE shall have thirty (30) days in which to obtain such additional insurance. The issuer of any policy must have a certificate of authority to transact insurance business in the State of Florida and must be rated "A" or better in the most current edition of Best's Insurance Reports. Each insurer must be responsible and reputable and must have -- financial capacity consistent with the risks covered. Each policy must contain an endorsement to the effect that the issuer waives any claim or right of subrogation to recover against LESSOR, its empioyees, representatives and agents. g. Failure to continuously abide with all of these insurance provisions shall be deemed to be a material breach of this Lease and LESSOR shall have the remedies set forth below in Article 16. ARTICLE 16. Defaults and Remedies e. Defaults by LESSEE. The occurrence of any of the following events and the expiration of the applicable cure period set forth below without such event being cured or remedied will constitute a "Default by LESSEE" to the greatest extent then allowed by law: 1. Abandonment of Demised Premises or discontinuation of LESSEES operation. 2. Falsification of LESSEE or a specifically authorized agent of LESSEE of any report required to be furnished to LESSOR pursuant to the terms of this Lease Agreement 3. Filing of insolvency, reorganization, plan or arrangement of bankruptcy. 4. Adjudication as bankrupt. S. Making of a general assignment of the benefit of creditors. 6. If LESSEE suffers this Lease to be taken under any writ of execution and/or other process of law or equity. 7. LESSEE loses the AZA accreditation for the Zoo, and such accreditation is not restored within two (2) years or such additional time as may be required if such accreditation is being diligently pursued by LESSEE. Notwithstanding the foregoing, to the extent that such loss of accreditation results from requirements of the AZA that are unreasonable or financially 27 Agenda Item No. 12B October 27, 2009 f P A ends Item No. e 36 of 149 November 15. 2005 impracticable for LESSEE to comply with, it shall not be a default hereunder to ld'ialltttiiiatot 45 accreditation. 8. Any lien is filed against the Demised Promises or LESSEE's interest therein or any part thereof in violation of this Lease Agreement, or otherwise, and the same remains unreleased for a period of sixty (60) days from the date of filing unless within such period LESSEE is contesting in good faith the validity of such lien and such lien is appropriately bonded. 9. Failure of LESSEE to perform or comply with any covenant or condition made under this Lease Agreement, 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 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). However, the occurrence of any of the events set forth above as 16 (a). I through 6 and 10 shall constitute a material breach and default by LESSEE, and this Lease may be immediately terminated by LESSOR except to the extent then prohibited by law, Notwithstanding the foregoing termination of the Lease Agreement, LESSEE shall have the Disposition Period (as herein defined) to remove the Zoo animals and other property of LESSEE from the Demigod Premises; the parries understanding that the relocation of Zoo animals may take significant time to safely accomplish. 10. LESSEE's loss of its federal IRS tax exempt status. 11. Failure to continue those programs set forth in Article 3 e 1 -7 above, unless such failure is cured within ninety (90) days from receipt of LESSORS written notice of default b. Remedies of 1. In the event of the occurrence of any of the foregoing defaults in this ARTICLE 16, LESSOR, in addition to any other rights and remedies it may have, shall have the imrnediste right to re -enter and remove all individuals, entities and/or property from the Demised Premises, provided such entering and removal is not detrimental to the welfare of the zoo animals. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of LESSEE, all without service of notice or resort to legal process and without being deemed guilty of trespass, or being liable for any loss or damage which may be occasioned thereby. if LESSEE does not cure the defaults in the time frames as set forth above, and LESSOR has removed and stored property, LESSOR shall not be required to store for more than thirty (30) days. After such time, such property shall be deemed abandoned and LESSOR shall dispose of such property in any manner it so chooses and shall not be liable to LESSEE for such disposal. 2. If LESSEE fails to promptly pay, when due, any full installment of rent or any other sum payable to LESSOR tinder this Lease, and if said sum remains unpaid for more than five (5) days past the due date, the LESSEE shall pay LESSOR a late payment charge equal to five (5 %) percent of each such payment not paid promptly and in full when due. Any amounts not paid promptly when due shall also accrue compounded interest of two (2 %) percent per month or the highest interest rate theft allowed by Florida law, whichever is higher ( "Default Rate "), which interest shall be promptly paid by LESSEE to LESSOR. Notwithstanding the foregoing, if such payment is delayed due to acts of god (hurricanes, flooding, wind storms etc.), it shall not be a default hereunder for such delay nor shall Default Rate interest accrue. 3. LESSOR may sue for direct, sexual 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 of any obligation, agreement or covenant of LESSEE under this Lease Agreement, or otherwise. c. Default by LESSOR- LESSOR shall in no event be charged with default in the performance of any of its obligations hereunder unless and until LESSOR shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct such default) after written notice to LESSOR by LESSEE properly and in meaningful detail specifying wherein, in LESSEE's judgment or opinion, LESSOR has failed to perform any such obligation(s). 26 Ar Agenda Item No. 12B OAe er 27, 2009 Agenda ]tom No. 37 of 149 November t5. Page 33 of 45 1. LESSEE may sue for direct, actual damages arising out of such Default by LESSOR or 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 Lease Agreement, or otherwise. 2. LESSEE may cure such Default of LESSOR and pay all sums or do all reasonably necessary work and incur all reasonable costs on behalf of and at the expense of LESSOR. LESSOR will pay LESSEE on demand all reasonable costs incurred and any amounts so paid by LESSEE on behalf of LESSOR, together with interest accrued thereon at the Default Rate from the date so incurred until LESSEE hag been completely reimbursed. e. No_Remo& Exelusiv e No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedy or remodies, but each and every such remedy will be cumulative and in addition to every other remedy given under this Lease Agreement or hereafter existing under law or in equity. No delay or omission to exercise any right or power accruing upon any event of default will impair any such right or power nor be construed to be waived, but any such right and power maybe exercised from time to time and as often as may be deemed expedient. f. NoWalver. Every provision hereof imposing an obligation upon LESSEE is a material inducement and consideration for the execution of this Agreement by LESSEE and LESSOR. No waiver by LESSEE or LESSOR of any breach of any provision of this Lease Agreement will be deemed for any purpose to be a waiver of any breach of any other provision hereof or of any continuing or subsequent breach of the same provision, irrespective of the length of time that the respective breach may have continued. g. AttomlX Fees. In the event of any litigation, including appellate proceedings, arising out of a default under this Agreement, the prevailing party shall not be entitled to recover any attorney's fees nor any costs from the non - prevailing party or otherwise (consistent with Article 26 below). ARTICLE 17. Notices a. Any notice, request, demand, instruction or other communication to be given to either party hereunder shall be in writing, sent by facsimile with automated confirmation of receipt, or by registered or certified mail, return receipt requested, postage prepaid, transmitted or addressed as follows: If to LESSOR: The Trust for Public Land 1595 Bay Street SE, Suite #13 St. Petersburg, FL 33701 Attu John Garrison, Project Manager Telephone: (727) 895 -5090 Fax No.: (727) 895 -5190 With it copy to: Donna H. Smith Regional Counsel The Trust for Public Land 4267 NW Federal Highway, PMB I20 Jensen Beach, FL 34957 Telephone (772) 335 -3520 Fax No.: (772) 335 -1438 If to LESSEE: Naples Zoo, Inc. 1590 Goodlettc -Frank Road _ Naples, Florida 34102 Attn: Executive Director Telephone: (239) 262 -5409 x. 107 Fax No.: (239) 262 -6866 29 Agenda Item No. 12B October 27, 2009 Agenda hem No. qW 38 of 149 November f 5.2005 Page 34 of 45 With a copy to: Napes Zoo, Inc. 1590 Goodlette -Fmnk Road Naples, Florida 34102 Attn: President of Naples Zoo, Inc. Board Telephone: (239) 262 -5409 x. 107 Fax No.: (239) 262 -6866 With a copy to: Scott M. Ketchum, Esquire Law Offices of Scott M. Ketchum, P.A. 692 Goodlette Road N - Naples, FL 34102 Telephone: (239) 403 -0146 Fax No.: (239) 403 -0%5 b. The facsimile numbers and addresses for the purpose of this Article may be changed by either party by giving written notice of such change to the other party in the marmer provided herein. For the purpose of changing such facsimile numbers or addressees only, unless and until such written notice is received by the recipient party, the last addressee and respective address stated herein shall be deemed to continue in effect for all purposes. ARTICLE 18 In order to provide for the orderly transition and reconveyance of the Demised Premises to LESSOR, LESSEE, at no cost to LESSOR, shall remove all furniture, fixtures, personal property, including all Zoo animals and any improvements completed by LESSEE (that LESSOR gives notice that it wishes demolished) prior to the expiration of this lease and shall deliver up and surrender to LESSOR possession of the Demised Premises and any improvements not removed upon expiration of this Lease, or earlier termination, in as safe and orderly a condition and in good repair as the same shall be at the commencement of the term of this Lease Agreement or may have been put by LESSOR or LESSEE during the continuance thereof, ordinary wear and tear and damage by fire or the elements beyond LESSEE'S control excepted. Notwithstanding the foregoing, understanding that a zoo operation cannot be removed without a significant period of time, the parties hereto agree that the disposition period (the "Disposition Period ") for the orderly and safe removal of the zoo animals and fixtures will be a period of two (2) years from the time of any notice to quit or for the last two (2) years of any tam of this Lease. The parties further agree that during the Disposition Period, LESSEE shall pay percentage rent only, not Base Rent. ARTICLE 19. General Provisfglls a. Rights not specifically granted the LESSEE by this Lease Agroesmont are reserved to the LESSOR. b. NET. NET. NET LEASE LESSEE shall promptly pay any and all sales taxes, licenses, permits, assessments and fees, taxes upon LESSEE's operations, and taxes imposed on the leasehold interest or otherwise related to the rental of the Demised Premises to the extent applicable under law, as well as any and all other taxes legally assessed. LESSOR acknowledges that LESSEE is a not for profit entity designated as 501(c) (3) by the Internal Revenue Service. As a not for profit federal income tax exempt entity, LESSEE may be exempt from the imposition of taxes on the leasehold interest. To the extent that LESSOR is then exempt from the payment of real property taxes on the underlying fee, LESSEE shall have no obligation to pay real property taxes. However, if the form of ad valorem taxes is changed by any law and LESSOR is then required to pay such taxes on the Ieasehold interest, such taxes will be paid by LESSEE as part of its triple net lease obligations hereunder. c. LESSEE agrees to pay all intangible personal property taxes that may be imposed due to the creation, by this Lease, of a leasehold interest in the Demised Premises and/or LESSEE'S use and or possession of said leasehold interest in the Demised Premises. 30 Agenda Item No. 12B Agenda item NO er 27, 2009 November 15.2e 39 of 149 d. Time is of tht Enence Ti me is of the essence in the doing, perfocmaRnea'lfidot 45 observation of each and every tarn, covenant and condition of this Lease Agreement by LESSOR and LESSEE. e, eraUili4v,. if any provision of this Lease Agreement is held to be unlawful, invalid, or unenforceable under any present or future laws, such provision will be fully severable, and this Lease Agreement will then be comtruod and enforced as if such unlawful, invalid or unenforceable provision had not been a part hereof The remaining provisions of this Lease Agreement will remain in full force and effect and will not be affected by such unlawful, invalid or unenforceable provision or by its severance herefrom, L Rstoptael Certificates, Within fifteen (15) days after notice by one party to the other, the party receiving notice will execute and deliver such estoppel certificates as the requesting party may reasonably require, which may be relied upon by the requesting party, financing party, or any other third party designated by the requesting Party, certifying to such facts (if and to the extent true) and agreeing to such reasonable notice provisions and other matters as such requesting party or such other third party may reasonably require in connection with the business dealings of the requesting party. g. Lgdemodent Contractor. LESSEE is an independent contractor, and not any agent or representative or employee of LESSOR, nor of any Officer or employee of LESSOR. LESSEE expressly covenants and agrees that during the term of this Lease Agreement neither LESSEE, nor anyone acting on behalf of LESSEE, shall hold itself out as an employee, servant, representative or agent of LESSOR. Neither party will have the right or authority to bind the other party without express written authorization of such other party to any obligation to any third party, except as expressly provided in this Lease Agreement with respect to subleases and occupancy agreements for concessions in the Zoo and/or Gardens. No third party is intended by the parties to be a beneficiary of this Lease Agreement or to have any rights to enforce this Leasc Agreement against either party hereto or otherwise. Nothing contained in this Lease Agreement will constitute the parties as partners or joint venturers for any purpose, it being the express intention of the parties that no such partnership or joint venture exists or will exist. LESSEE acknowledges that LESSOR is not providing any vacation time, sick pay, or other welfare or retirement benefits normally associated with an employee- employer relationship and that LESSOR excludes LESSEE and its employees from participation in all health and welfare benefit plans including vacation, sick leave, severance, life, accident, health and disability insurance, deferred compmsetion, retirement and grievance rights or privileges. h. Entire A reement/AmendmentL This Lease Agreement constitutes the entire agreement between the parties as to the subject matter hereof. This Lease Agreement will not be modified, altered or amended except by written instrument duly executed by both LESSEE and LESSOR. i, For+ea_„ Ma_, iearc Neither party to this Lease Agreement will be liable for any delay in the performance of any obligation under this Lease Agreement or of any inability to perform an obligation under this Lease Agreement if and to the extent that such delay in performance or inability to perform is caused by an event or circumstance beyond the reasonable control of and without the fault or negligence of the party claiming Force Majeure. "Force Majeure" shall include an act of God, war (declared or undeclared), sabotage, riot, insurrection, civil unrest or disturbance, military or guerrilla action, economic sanction or embargo, civil strike, work stoppage, slow -down or lock -out, explosion, fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, the binding order of any governmental authority, unavailability of supplies or products necessary for the operation of the Zoo and Gardens, and/or failure of equipment not utilized or under the control of either party hereto, provided that such equipment has been designed, constructed, operated and maintained in accordance with prudent operating practice and Zoo Industry Standards. j. Memorandum of Lea e. LESSOR and LESSEE will have the right to record a memorandum of this Lease Agreement in the real property records of Collier County, Florida. k. Quiet Eniovment. LESSOR covenants, warrants and represents that it has the full right and power, subject to the Permitted Encumbrances, to execute this Lease Agreement and to grant the estate demised herein, and that LESSEE, on paying the rent herein reserved 31 Agenda Item No. 12B r October 27, 2009 goands Item No 40 of 149 November 15. 2005 and performing the covenants and agreements herein contained to be perfaftel Vf 0145 LESSEE, shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights and privileges belonging or pertaining thereto during the Lease Tenn, as it may be extended. 1. Throughout this Lease, the words "law ", "rule" and/or "regulation" or similar words shall not be limited to items that are so defined, but shall apply to and include any such thing that legally applies, including ordinances and codes. m. Throughout this Lease, a list of nouns, for example, "employee", "servant ", "representative ", and/ or "agent," shall not be construed to be limited to the listed nouns, but shall include any individual whomsoever and/or entity whatsoever to which the sentence or phrase could logically apply. ARTICLE 20, En3drenmental Matters e. Restrigfigns op Hazardous Materials. LESSEE will not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous Materials (hereinafter defined)upon or about the Demised Premises, nor permit employees, representatives, agents, contractors, sub - contractors, sub-sub-contractors, materialmen and/or suppliers to engage in such activities upon or About the Demised Premises, However, the foregoing provisions will not prohibit the transportation to and from, and use, storage, maintenance and handling, within the Demised Premises of substances customarily used in owning, managing, repairing or operating similar premises devoted to uses authorized by this Lease; provided (i) such substances will be used and maintained only in such quantities as are reasonably necessary and in accordance with all then applicable laws, rules and/or regulations, and the manufacturers' instructions therefore, and (ii) such substances will be disposed of, released or discharged at the Demised Premises in compliance with all then applicable laws, rules and/or regulations, and will be transported to and from the Demised Premises in compliance with all of the same. b. Environmental Ngticea, Each party will promptly notify the other party upon the notifying party's becoming aware of: (i) any enforcement, cleanup, or other regulatory action taken or threatened against either party by any governmental or regulatory body with respect to the presence of any Hazardous Material on or otherwise regarding the Demised Premises, (ii) any demands or claims made or threatened by any individual or entity against LESSOR or LESSEE relating to any Hazardous Materials, ( iii) any unlawful release, discharge or non - routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Demised Premises, and (iv) any matters where a party hereto is required by law, rule and/or regulation to give a notice to any governmental or regulatory body respecting any Hazardous Materials in the building(s) or on the Demised Premises. At such times as LESSOR may reasonably request, LESSEE will provide LESSOR with a written list identifying any Hazardous Materials then actually known to LESSEE to be used, stared, or maintained upon the Demised Premises, a copy of any MSDS issued by the manufacturer thereof, written information concerning the removal, transportation and disposal of the same, and other information as LESSOR may reasonably require or as may be required by laws. c. Remediatlon, if any Hazardous Material is released, discharged or disposed of by. LESSEE, or its employees, agents or contractors, etc., on or about the Demised Premises in violation of the foregoing provisions, or otherwise, LESSEE will immediately, properly and in compliance with all applicable laws and ordinances, remediate the Hazardous Material on the Demised Premises and any other affected property, at LESSEE's sole expense. Such remediation• work will be subject to LESSOR's prior written approval, and will include, without limitation, any testing, investigation and/or preparation and implementation of any remedial plan required by any governmental body having jurisdiction. If LESSEE fails to comply with the provisions of this Article 20 within five (5) days after written notice by LESSOR, or such shorter time as may be required by law, LESSOR may (but will not be obligated to) arrange for such compliance through contractors or other panties selected by LESSOR, at LESSEE's expense. d. D fWtlon of Hazardous Material, Hazardous Material means any substance: i.) the presence of which requires investigation, remediation, or is, or becomes regulated under any federal, state or local statute, regulation, ordinance, order, action, policy, or common law; or 32 Agenda Item No, 12B it October 27, 2009 Attsnda Item NcP 41 of 149 ember 15. 2005 ii.) which is or becomes defined as a "hazardous substance," pollHpOR 39rof 45 contaminant under any federal, state, or local statute, regulation, rule, or contaminant wider any federal, state, or local statute, regulation, rule, or ordinance or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.); or iii.) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous, or poses, or threatens to pose a hazard to the health or safety of persons on or about the Demised Premises, and is or becomes regulated by any governmental authority, agency, department, commission, board, or instrumentality of the United States, the State in which the Demised Premises are located or any political subdivision thereof. e. Lavironmental lndemnity. In accordance with the provisions of ARTICLE 14 hereof, LESSEE represents, wananis and agrees to indemnify, reimburse, defend and hold harmless LESSOR, from and against all costs (including attorneys fees and all appeals) asserted against, imposed on or incurred by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state, local or common law relating to pollution or harm to the environment associated with the Demised Premises. This applies to any contamination that arises from any and all environmental testing whatsoever done on the Demised Premises. ARTICLE 2I. Raft Gas In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the following; Radon is a naturally occurring radioactive gas that, when it Kw accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department, ARTICLE 22. SeeurW Provisions LESSEE fully understands that the police and law enforcement security protection provided by law enforcement agencies to the Demised Premises is limited to that provided to any other business or agency situated in Collier County, and LESSEE acknowledges that any special security measures deemed necessary for additional protection of the Demised Premises shall be the sole responsibility and cost of LESSEE and shall involve no cost or expense to LESSOR. ARTICLE 23. Non- DiscriminatioNlwaual Opportunity a. LESSEE in exercising any of the rights or privileges herein granted, shall not on the grounds of race, color or national origin discriminate or permit discrimination against any individual or group of individuals in any manner prohibited by Part 21 of the Rules and Regulations of the Secretary of Transportation. LESSOR is hereby granted the right to take such action, anything to the contrary herein notwithstanding, as the United States may direct to enforce this nondiscrimination covenant. b. LESSEE assures that it will undertake an affirmative action program as required by 14 CFT Paris 152, Subpart "E ", to insure that no person shall on the grounds or race, creed, color, nation origin or sex be excluded from participating in any employment activities covered in 14 CFI' Park 152, Subpart "E ". LESSEE assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this Subpart. c. LESSEE assures that it will require its covered suborganizations, if any, to provide assurances to LESSEE that it similarly will undertake affirmative action programs and that it will require assurances from its suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. LESSOR is hereby granted the right to take such action, anything to the contrary 33 Agenda Item No. 12B October 27, 2009 Agenda Item NaMe 42 of 149 November 15. 200��55 herein notwithstanding, as the Federal Government may direct to enforce this n0ndiscritAhMjW45 covenant. d. To the maximum extent Permitted by applicable laws, LESSEE shall, in the conduct of its business, comply with Collier County's and the State's minority, women, disadvantaged business enterprise policies from time to time in effect. ARTICLE 24. interest of embers_ o, f 1!"M941 Sybdivtsbn. No member of the governing body of the City of Naples or Collier County or any political subdivision of the State of Florida and no other officer, employee or agent of the City, County or any political subdivision of the State of Florida who exercises any functions or responsibilities in connection with the carrying out of the establishment and ooperato nnstf the oar rxVor his Lease which this Least Agreement pertains shall have any personal ARTICLE 25. E"vt This Lease shall become effective upon execution by both LESSOR and LESSEE. ARTICLE 26. severnine Law and Venue This Lease shall be governed by, and construed in accordance with, the laws of the State of Florida. Any lawsuit ar other action to enforce any provision of this Lease shall be filed in the Circuit Court in and for the County of Collier, Florida and each party shall be responsible to pay its own costs and attorney's fees resulting therefrom and the costs of any and all app IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals. AS TO LESSOR: FIRST WITNESS (signature) (print name of first witness) SECOND WITNESS (signature) (print name of second witness) AS TO LESSEE: FIRST WITNESS (signature) LESSOR: THE TRUST FOR PUBLIC LAND, A California not - for -profit Corporation By. Name: Title: Date: , 2005 LESSEE: NAPLES ZOO, INC., a Florida not -for -profit Corporation By: Name: Title: Date: 34 12005 (print name of first witness) SECOND WITNESS (signature) (print name of second witness) 3S Agenda Item No. 12B October 27, 2009 Agenda Item Nd? 43 of 149 November 15, 2 5 Page 39 of 45 Agenda Item No. 12B M October 27, 2009 Agenda stem No lt,e 44 of 149 November t 5. &hWtLW- Page 40 of 45 Description of Total Property Island in 17t° Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Circuitit according to the map or plat thereof to Plat Book' 1 Page gninithenpubi recorded a of Co I er of CtCowtty, Florida. of All Golden Gate Parkway, rkway, rpeccrr3cdpn Plat Book 2, Page 2, Little PublicrRecards�of Colliers County, Florida. The East 364 feet of the West 1,184 feet of Lot 8 of Naples improvement Company's Little Farms Subdivision, less road right -of -way granted in Official Records Book 876, Page 1,718, accoTding Court, recorded in Plat Book 2, thereof 2, file and Publlic in the office of the of Collier County Flori the Circuit The East 470 feet of the West 1,654 feet of Lot 8 of Naples Improvement Company's Little Farms Subdivision recorded in PIat Book 2, Page 2, in the Public Records of Collier County, Florida. All of Lot 8 of Naples improvement Company's Little Farms Subdivision, except the West 1,654 feet, according to the plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; the East and West boundary lines of said Parcel being measured from the West line of said Lot 8 (said West line of Lot 8 lying 25.00 feet East of the North and South 'A Section line of Section 27, Township 49 South, Range 25 East, Collier County, Florida. The East 338.14 feet per let Book 958.34 , Page'z p of ublic t Naples Collier Improvement ty, Florida, less Little Farms Subdivision, pe except that portion deeded to the Board of County Commissioners of Collier County, Florida described as: Commence at the Northwest corner of said Lot 7; thence N 89 degrees 17' 39" East along the North lino of said Lot 7 for a distance of 620.00 feet to the POINT OF BEGINNING; thence continue along the North line of said Lot 7 a distance of 41.60 feet to the point of intersection with the point of curse concave to the Northwest having a radius of 813.94 feet and a central angle of 26 degrees 13' 03 ,,; thence continue Southwesterly along said curve an arc distance of 51.30 to a point, thence N 00 degrees 39' 49 "West 30 feet to the POINT OF BEGINNING. The North %a of Lot 7, less the West 1289.34 feet, Naples improvement P Company's Little of Collier Subdivision, as per plat thereof recorded in Plat Book 2, Page County, Florida. Lot 6 of Naples Improvement Company's Little Farms Subdivision, less additional road right -of- way for Good ette•Frank Road, according to the map or plat thereof on file and recorded in the office of the Cleric of the Circuit Court, recorded in Plat Book 2 Page 2, in the Public Records of Collier County, Florida; and subject to an casement reserved by Seller, its heim and assigns, for ingress and egress over the North 60 fat of the West 897 feet thereof. Lots 3, 4 and 5 of Naples improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2 at Page 2, Public Records of Collier County, Florida; together with all buildings thereon; subject to the following easements of record to Florida Power & Light Company relating to said Lot 6: (a) An easement dated June 10' , 1953, recorded in Deed Book 30 at Page 395 of said Public Records; and (b) An ea nwa dated June 10*, 1953, recorded in Deed Book 30 at Page 397 of said Public Records; less and except the following described property: Part of Lot 3, Naples Improvement Company's Little Farms Subdivision, as per plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida, lying Easterly and Southerly of the following described line: Commencing South, Range 25 East, Collier Countyds, Florida; 36 along he Township 36 Agenda Item No. 12B October 27, 2009 Aggeencra Item Qagm 45 of 149 November 15, 2QD5 South Line of said Section North 89 degrees 26' 09" East 753.94 to a point oge 41 of 45 thence South 0 degrees 21' 55" East 334.85 feet to a concrete monument on the South line of said Lot #3 and the Point of Beginning of the described line; thence along said described line and the Westerly boundary of the herein described parcel North 0 degrees 21' 55" West 211.15 feet to a concrete monument at the Northwest comer of said described Parcel; thence along said described line and the Northerly boundary of said described parcel North 89 degrees 38' 05" East 729.90 feet to a concrete monument; thence continue North 89 degrees 38' 05" East 13 feet more or less to the Easterly bound" of Lot 3, Naples improvement Company's Little Farms Subdivision and the Point of Ending of said described Line. Lot 2, Naples Improvement Company's Little Farms Subdivision, except area described in Deed Book 22, Page 393, Public Records of Collier County, Florida, and less West 25 feet and right - of-way located in Collier County, Florida, and except parcel deeded to Collier County Conservancy, Inc., as Parcel 2 in Official Records Book 767, Page 249, according to the map or plat thereof on file and recorded in the Office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida. A lot or parcel of land lying in Lot 2 of Naples Improvement Company's Little Farms Subdivision, per plat in Plat Book 2, Page 2, Public Records of Collier County, Florida, which lot is described as follows: Beginning at a point on the South line of said Lot 2, which point is the Northwest corner of Lot 50 of Gordon River Homes per Plat in Plat Book 2, Page 84, Public Records of Collier County, Florida, run Northerly parallel to the West line of said Lot 2 for 217.5 feet; thence run Easterly parallel to the South line of said Lot for 180 feet; thence run Southerly parallel to West line of said Lot for 217.5 feet to South line of said Lot; thence run Westerly along said South line for 180 feet to Point of Beginning. Being the same premises conveyed by deed recorded in Deed Book 22, Page 393, Public Records of Collier County, Florida; less the West 40 feet thereof, and less road right -of -way for Goodlette -Frank Road. The Westerly %: of Lot 39 and Lot 40, Gordon River Homes Subdivision, Lots 41, 42, and 43 and the East 45 feet of Lot 44, GORDON RIVER HOMES, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 84, in the Public Records of Collier County, Florida. Al] of Lot 97 of Naples Improvement Company's Little Farms Subdivision, lying South of Golden Gate Parkway, according to the plat thereof recorded in Plat Book 2, at Page 2, Public Records of Collier County, Florida. In North h of North `h of Section 35, Township 49 South, Range 25 East, being at the Northwest corner of the section and nun East 1398.25 feet; thence South 64 degrees West 1555.06 feet; thence North 664.01 feet to the place of beginning, Collier County, Florida. 37 s Agenda Item No. 12B Agands item Nap ber 27, 2009 Noven*er 15. 2 ge 46 of 149 Papa 42 of 45 Description Of Demised Premises Island in 17s` Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Naples, according to the map or plat thereof on file and retarded in the office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 8, in the Public Records of Collier County, Florida; and, Lot 3 of Naples improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Boole 2, Page 2, of the Public Records of Collier County, Florida; less and except the South 311.25 feet thereof, and All of Lots 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida; and, Lot 6, Naples improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida, less and except the following described property. Beginning at the Northwest corner of said Lot, 6, tun South along the West line of said Lot 6 for 60 feet; thence nut Bast parade] with the North lot line of said Lot 6 for 983 feat; thence tun South parallel with the West lint of said Lot 6 for 220 feet, more or less, to aline parallel with and SO feet (measured ced said angles) North of the South line of said Lot 6; thence run East pare south line for 717 feet, more or less, to the waters of Gordon River Canal; thence tun Northeasterly for 280 feet, more or less, along the waters of said Canal to the North line of the said Lot 6; thence run West along the said North line of Lot 6 for 1,697 feet, more or less, to the point of beginning. Subject to a reservation, heroin reserved by this provision, for an easement to Collier County, its officers, employees, agents, and/contractors, and the public for (1) construction of a perimeter road from the intersection of Flcisehmann Blvd. and Goodlette -Frank Road northerly along the westerly property line of the Demised Premises, and a bus turnaround for use by the LESSEE within the LESSEE's primary existing parking lot; and (2) ingress and egress over the roadways of the LESSEE so that ail individuals who reasonably then need such access will have the needed tit-to-time needed, access to the Gordon River and adjoining lands and/or f otherwise within the lert of the Lease This reservation shalt be treated for all purposes existing agreement. An aerial showing the perimeter road is attached as Exhibit "A -3." 36 Agenda Item No. 12B October 27, 2009 Apende ttem NFIce 47 of 149 November 15, 2805 Exhibit A -2 Pape 43 of 45 Description of Shared Parking Area ?he South 311.25 feet of the West 440 feet of Naples Improvement Company's Little Farms, as measured along the South line of said Lot 3, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida, 39 F ExWbit "A -3" Agenda Item No. 12B A ends Item No. er 27, 2009 (November I& �e 48 of 149 Page 44 of 45 40 . - --I- . 16 Agenda Item No. 12B October 27, 2009 Agenda Item NFagg 49 of 149 ember 15, 2005 "B" Pape 45 of 45 Per -Mmsd Encumbrance: 41 Agenda Item No. 12B Tc1ober 2009 F e50 of 149 NOVATION ASSIGNMENT OF LEASE AGREEMENT This Assignment is entered into this 19th day of December, 2005 by and between The Trust for Pubiic Land, a California not- for - profit corporation, having a principal place of business at 1595 Bay Street SE, Suite # 3, St. Petersburg, Florida 33701 ( "Assignor" and "Lessor") and Collier County, a political subdivision of the State of Florida, having an address of 3301 Tamiami Trail East, Naples, Florida 34112 ( "Assignee" and the "County "). PRELIMINARY STATEMENT Reference is made to the following facts that constitute the background to this Assignment: WHEREAS, Assignor entered into that certain Lease Agreement signed on even date herewith (the "Lease "), with Naples Zoo, Inc., a Florida not - far - profit corporation ( "Lessee ") with respect to certain property consisting of 43.52 acres, more or less, and located in Collier County, Florida, as more fully described in the Lease (the "Demised Premises "); WHEREAS, pursuant to Article 13 of the Lease, Assignor may assign the Lease to the County; and WHEREAS, Assignor wishes to assign the Lease to Assignee and Assignee wishes to assume the Lease on the terms and conditions set forth herein. 1 fi October 27, 2009 Page 51 of 149 NOW THEREFORE, in consideration of the Lease and this Assignment, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Assignor hereby assigns to Assignee all of its rights under the Lease, a complete copy of which, now in full force and effect, is attached hereto as Exhibit A. 2. This Assignment is made such that Assignee is subject to all of the terms and conditions of said Lease, none of which are waived by Lessee. 3. it is understood that this Assignment is an assignment of all of the rights that Assignor may now or at any time hereafter have in the Lease or against Lessee arising out of or under the Lease. 4. Assignee assumes ail of the obligations of Assignor under the Lease, which obligations Assignee covenants and agrees with Lessee to perform and observe as if the Lease had been between Assignee, as lessor, and Lessee. This Assignment is a complete novation; therefore from and after the date of this Assignment Assignor is released from all its duties, responsibilities, obligations and /or liability in connection with this Lease. 5, Upon execution and delivery of this Assignment by Assignor and Assignee, a copy of the executed Assignment will be provided to Lessee and request that all notices referred to in the Lease to be sent to Lessor will be sent to County at the following addresses: 1) Agenda Item No. 12B October 27, 2009 - - Page 52 of 149 If to Assignor. Ra Senior Mana ement S ecialist eal Estate Service Department Administration Building 3301 Tamiami Trail East Naples, Florida 34112 (239) 774 -8743 Telephone (239) 774 -8876 Facsimile With a copy to: Thomas Palmer Assistant County Attorney Office of the County Attorney Administration Building 3301 Tamiami Trail East Naples, Florida 34112 (239) 774 -6400 Telephone (239) 774 -0225 Facsimile If to Lessee: Naples Zoo, Inc. 1590 Goodlette -Frank Road Naples, Florida 34102 Attn: David Tetzlaff, Director Telephone: (239) 262 -5409 x. 107 Fax No.: (239) 262 -6866 With a copy to: Law Offices of Scott M. Ketchum, P.A. Goodlette Professional Center 692 Goodlette Road North Naples, Florida 34102 Telephone: (239) 403 -0148 Fax No.: (239) 403 -0965 6. Assignor represents, to the best of its knowledge that no defaults exist under the Lease. 7. Provided this Assignment is executed and delivered within 30 days after 3 Agenda Item No. 12B Dctober 27, 2009 Page 53 of 149 Assignor takes title to the Demised Premises, any rent payment received by Assignor will be paid over to Assignee; otherwise the rent payments will be prorated only for the month of the Assignment to Assignee, Assignor retaining any rents paid in months prior to the month of the Assignment. Executed as a sealed instrument as of the date first above written. Dated Project/Acquisition Approved by: Bcc: d z v v,� AS TO —ASSIGNEE: � DATED: f a- 7l — ;��,�,� ATTEST: DWIGHT�F. BFtQCK,'lerk puty Clerk Attest- as ` s i gnetwst' =OA'J` Approved as to form and legal sufficiency: Thoma Palmer Assistant County Attorney BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA 4 BY: W. FRED W. COYLE, CHAIR N AS TO ASSIGNOR: DATED: / q WITNESSES: atu a of first witness) nted Nam� of first witness) (871g-nature of second witness) _M - �� (Printed Name of second witness) AS TO LESSEE: Lessee joins in this Assignment and does hereby acknowledge the transfer of obligations and rights from The Trust for Public Land tq CZ�Ilier County, Florida N THE TRUST FOR PUBLIC E Agenda Item No. 12B October 27, 2009 Page 54 of 149 %t (2 We- 1 uS sr.4r -�>,'?-e 17-o ._____._. - _ _ _._ __ _-r Agenda Item No. 12B October 27, 2009 Page 55 of 149 Attorneys' Title Insurance Fund, Inc. CO3flWa NT FORM Schedule B -II Agent's File Reference: Commitment No.: 9418- TPL -CC C- 2885654 IL Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of The Underwriter. 1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this conanitment 2 Any owner and mortgagee policies issued Pursuant hereto will contain under Schedule B the standard exceptions set forth at the inside cover hereof unless an affidavit of possession and a satisfactory current survey are have p' d, inspection of the premises is made, it is determined the current year's taxes or special assessments have bees paid, there is nothing of record which would give rise to construction liens which could take priority and it is determined insured hereunder (velure the liens would otherwise take priority, submission of waivers is over the interest e necessary). 3 A.Fly rnee Y-isswed- Pmt J.�gk fa of -8 - 4epenm� esrrrersfti¢ �he�lRte �f Ie* rya3 -+gg�rt-e} �#3' DEICED. d. The lien of all taxes for the year 2005 and thereafter. Taxes for 2006 will become a lien against the land as of Janaary 1, 2006, although not due and payable until November 1, 2006. Taxes for 2005 are due and payable in the following amounts: 3 - 0 - (Folio No. 17830000027); 58,003.30 (Folio No. 61940280000); S135,122.64 (Folio No. 61940200006); $559.60 (Folio No. 61947800001); and 54.129.72 (Folio No. 61940320009). 5. Rights of parties in possession of that leased portion of the insured property commonly known as "Jungle Larry's" under unrecorded Lease Agreements and all sublessees thereof, including without limitation tinder er County, Florida. Memorandum of Lease recorded in OR Book 2893, Page 916, Public Records of Colli 6. Riparian and littoral rights are not insured 7. This policy excludes from coverage the inalienable rights of the public to use the navigable waters covering or adjacent to the lands insured parcel tying watenvard of the mean -high water line of the 8. This policy does not insure any portion of the Gordon River or Golden Gate Canal 9. Restrictions, conditions, reservations, easements, and other matters contained on the Plat of Naples Improvement er County, Florida Company's Little Farms, as recorded in Plat Book 2, Page 2, Public Records of Colli 10. Easement in favor of Florida Power & Light Company, contained m instrument recorded November 14, 1953, Deed Book 30, Page 393 as subordinated at O.R. Book 246, Page 59, Public Records of Collier County, Florida. 11. Easement in favor of Florida Power & Light Company, contained in instrument recorded November 14, 1953, Deed Book 30, Page 395, Public Records of Collier County, Florida 12. Easement in favor of Florida Power & Light Company, cow ed in instrument recorded November 14, 1453, Deed Book 30, Page 397, Public Records of Collier County, 13. Easement in favor of Florida Power & Light Company, contained in instrument recorded June 21, 1960, O.R. Book 66, Page 301, Public Records of Collier County, Florida 14. Easement in favor of Florida Power & Light Company, contained rn instrument recorded Augsut R 22, 1967, O Book 244, Page 631, Public Records of Collier County, Florida. 15. Easement in favor of Collier County, contained in instrument recorded September 12, 1985, O.R. Book 1155, Page 233, Public Records of Collier County, Florida favor of Collier County, cnntained in strurnent recorded April 28, 1995, O.R. B 16. Easement in Florida. as Page 1696 ur as corrected and re- recorded at OR Book 2098, Page 1826, Public Records of Collier County, 17. Right of Entry recorded io O.R- Book 2999, Page 3041, Public Records of Collier County, Double7°ime<P Form C-SCA 5-11 (rc% S/9lJ (� Attorneys' Title Insurance Fund, Inc. CaMMITMENT FORM Schedule B-II (Continued) Caaunitment No.. C- 2885654 Agenda Item No. 12B October 27, 2009 Page 56 of 149 Agent's File Reference: 9418- TPL -CC 18. Resolution No. 89 -5753 recorded in O.R Book 1603, Page 1508, Public Records of Collier County, Florida. 19. Subject to R.igtd -of -Way Deed recorded in O.R Book 66, Page 432, Public Records of Collier County, Florida. 24. Order of Taking recorded in O.R. Book 2735, Page 1135, Public Records of Collier County, Florida. 21. Easement in favor of Florida Power & Light Company, contained in instrument recorded September 9, 1980, O.R. Book 882, Page 1123, Public Records of Collier County, Florida. villa or port authority, for 22. Any lien provided by County Ordinance or by Ch. 159, F.S., is favor of any city, town, 8e P unpaid service charges for services by any water systems, sewer systems or gas systems serving the land described herein; and any lien for west fern in favor of any county or municipality. 23. Any rights in favor of third parries arising 5, 2005, and bearing File No. mat of ters Guy catch s traffic signal poles, survey , dated July 6, 2004, revised August of the insured property outside of any easement area. and utility poles located along the Western boundary Note: The gap and standard exceptions, except the standard exception pertaining to ad valorem taxes for the current and subsequent years, will be deleted upon the receipt of a current survey and owner s gap affidavit acceptabie to the company exceptions for matters of survey will not be deleted from the policy to be issued with respect to Note: Standard Parcel 16. Note: Notwithstanding Exception No. 1, this commitment provides the gap coverage set forth in Florida Statutes 627.7841 (Gap Statute) under the circumstances set forth in that statute, provided the insurer is allowed to disburse and record. j � �� V 11 Co- G I'.. i O4 t C.� t n 4 J Q Form CSCN. B- 11(C- rirmrd) Doublenme® (rev. NY4) Attorneys' Title Insurance Fund, Inc. COMMIMENT FORM Schedule B-II (Continued) Commitment No.: C- 2885654 Agenda Item No. 12B October 27, 2009 Page 57 of 149 Agent's File Reference: 9418- TPL -CC 18. Resolution No. 89 -5753 recorded in O.R. Book 1643, Page 1508, Public Records of Collier County, Florida. 19. Subject to Right- of-Way Deed recorded in OR. Book 66, Page 432, Public Records of Collier County, Florida. 20. Carder of Taking recorded in OIL Book. 2735, Page 1135, Public Records of Collier County, Florida. 21. Fasement in favor of Florida Power & Light Company, contained in instrument recorded September 9, 1980, O.R. Book 882, Page 1123, Public Records of Collier County, Florida. village or port authority, for 22. Any &a provided by County Ordinance or by Ch. 159, F.S., in favor or cam, town, serving the land described unpaid service charges for services by any water systems, sewer g herein; and any lien for vast fees in favor of any county or municipality. 23. Any rights in favor of third parries arising from the following matters of survey as depicted on W11sonMiller survey dated July 6, 2004, revised August 15, 2005, and bearing File No. 4G-125A- �uyye of arty hoemtrraff�gnal poles, and utility poles located along the Western boundary of the insured property and subsequent years, will be delete exceptions, except the o ardcue•.renthsur survey owner's affidavit acceptable cto the company. Note: Standard exceptions for matters of survey an71 not be deleted from the policy to be issued with respect to Parcel 16. in Florida Statute$ 627.7841 (Gap S� ) under the circumstances sett forth in that statute, provided providethe einsurer isallowed to disburse and record. t& 1 1C CO( I'A41 o, z. Forn CSCH. 3-11 (Continued) (rer. 3194) DoubleTlrne® naa Item NO. 1 Zb October 27, 2009 Page 58 of 149 Attorney CD Title Fund, Inc. FORM Schedule B -II Agent's File Rcftuencr:: Comantitment No.: 9418- TPL-CC C- 2883654 Il. Scbtdule B of the policy or policies to be issued will contain exceptions to the following ratters unless the same axe disposed of m the satisfaction of Tire Underwriter. 1. Defects, liens, encuWbrancM adverse claims or other matters, if any, created, fast appearing the public records or attaebing subsequent to the effective date hereof but prior to the date the proposed Irtstutd acquires for value of record the estate or interest or mortgage thereon covered by this commitment 2. Any owner and mortgagee policies issued pursuant hereto will contain under Schedule B the standard submitted, et forth at the inside cover hereof unless an affidavit of possession and a satisfactory current survey a premises is m, it is determined the current years taxes or special assessments have been paid, inspection of the h would give rise to cons and it is determined there is nothing of record whictr ority, uction liens l subrnission of waivers is over the interests) insured hereunder (where the liens would otherwise take. pri necessary). -y t, $- 4fhe-�€gW%ifl8-°�pialL ' - - hesea<+a �- 3 - rh4d.% DELETED. - ltereet�err- land as of 4. The lies of all taxes for the year 2005 and le tftNov �r 1, 20066 Taxies become a for 005 area due and payable in the January 1, 2006, although not due and pays olio No. 61940280000): 5135,122.64 (Folio No. following amounts• S - 0 - (Folio No. 17830000027); $8.003.30 (F 61940200006); $559.60 (Folio No. 61947804001); and $4,129.72 (Folio No. 61940320009). 5. Rights of parties in possession of that leased portion of the insured property commonly known as "Jungle Larry's• under of parties Lease Agreements and all sublessees thereof, including without limitation ra &hts under Memorandum of Lease recorded in OR Book 2893, Page 916, Public Records of Collier county, 6. Riparian and littoral rights are not insured 7. This policy excludes frost coverage the inalienable rights of the Public to use the navigable waters covering or adjacent to the Lands 8. This policy does not insure any portion of tits insured parcel lying wattnvard of the mean -high vratcr line of the Gordon River or Golden Gate Canal 9. Restrictions, conditions, reserved °rte, easements, and other Public cords of Collicr County, Naples a. rovemeat Company's Lithe Farms, as recorded in Plat Book 2, page 10. Easement in favor 3of Florida Power a &O.R. Book �246 Page 59, Publi Records of Collier CountYbFlorida.g53, Deed Light Book 30, Page 39 11, Easement in favor of Florida Power & Light Company, contained in instrument recorded November ] 4, 1953, Decd Book 30, Page 395, Public Records of Collier County, Florida. 12. Easement in favor of Florida Power & Light Compazry, contained m instrument recorded November 14, 1953, Decd Book 30, Page 397, Public Records of Collier County, Florida. 13. Easement in favor of Florida Power & Light Company, contained in instrument recorded June 21, 1960, O.R Book 66, Page 301, Public Records of Collier County, Florida 14. Easement in favor of Florida Power & Light ComP=Y, contained in irtstntment recorded Augsnt 22, 1967, O.R. Book 244, Page 631, Public Records of Collier County, Florida. 15. Easement in favor of Collier County, contained to it u ent recorded September 12, 1985, O.R Book 1 i55, Page 233, public Records of Collier County, Florida 16. Easement in favor of Collier County, contained in instrument recorded April 28, 1995, OR Book 2053, Page 1596 as corrected and re- retarded at OR Book 2098, Page 1826, Public Records of Collier County, Florida. 17. Right of Entry recorded in O.R. Book 2999, Page 3091, Public Records of Collier County, Florida. DaubleTlmeO Form CSCH. B•11 (r-. 5/94) Agenda Item 1 October 2 Page 5� EXHIBIT "A" LEASE AGREEMENT THIS LEASE AGREEMENT (this "Lease Agreement ") is entered into this a day of ,M �?SA_ 2005, between NAPLES ZOO, INC., a Florida non - profit corporation, exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, whose mailing address is 1590 Goodlette -Frank Road, Naples, Florida 34102, { c einafter refetre" to , "Narl..,, Z:,-, ? c. ... " ?_cSrEr ", ant' THE TRiTST FOR PUBLIC LAND, a California non - profit corporation, whose mailing address is 1595 Bay Street SE, Suite #3, St. Petersburg, Florida 33701, hereinafter refen-ed to as "TPL" or "LESSOR ". WITNESSETH WHEREAS, Naples Zoo, Inc„ is a lessee of certain assets of Jungle Larry's Safariland, Inc., an Ohio corporation, and operator of the fixtures, furniture, buildings and animals that make up the Caribbean Gardens, The Zoo in Naples; and WHEREAS, during its history in Naples, Florida, the Zoo has strived to provide a quality experience for residents and visitors to the community. It has done this without drawing on public monies for any reason including seeking accreditation by the American `Loo and Aquarium Association, which it achieved in 2001. This status places Caribbean Gardens in the top 1017o of facilities exhibiting wildlife in the Nation; and WHEREAS, TPL has acquired the property at the intersection of Goodlette -Frank Road and Golden Gate Parkway consisting of 166 acres, more or less (the "Total Property "), from CHARLES FLEISCHMANN, III, as to an undivided 49.61% interest in said land, DORETTE L. FLEISCHMANN VIETS, as to an undivided 25.195% interest in said land and DORETTE L. FLEISCHMANN VIETS, MELANIE FLEISCIMANN GARNETT and CHARLES FLEISCHMANN, V, as Co- Trustees under Article Seven B of the Last Will and Testament of Dorette K. Fleisc'nmann, deceased, dated September 10, 1992, as to an undivided 25.195% interest in said land (the Total Property is more particularly described on Exhibit "A" attached hereto and made a part hereof); and WHEREAS, TPL intends to convey portions of the Total Property to Collier County, a political subdivision of the State of Florida, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112; and WHEREAS, the voters of Collier County, in a November 2004 referendum, voted overwhelmingly to increase the ad valorem tax in order to raise $40 million in funding to acquire portions of the Total Property and to preserve the Caribbean Gardens, The Zoo in Naples, for future generations; and WHEREAS, TPL is entering into this Lease with Naples Zoo, Inc. in order to further the voters' objective and purpose to preserve the gardens and the zoo; and WHEREAS, the County has agreed to accept an assignment of this Lease Agreement from TPL at the time the County is to acquire portions of the Total Property from TPL; and WHEREAS, Collier County has determined that it is in the best interest of the citizens of Collier County for this Lease Agreement to be assumed by the County and for the Naples Zoo, Inc. to continue to grow and develop for the enjoyment by, the education of, and the enhancement of the quality of life and the entertainment of the general public of Collier County and the State of Florida. THE PARTIES AGREE AS FOLLOWS: ARTICLE 1. Demised Premises and Permitted Uses a. LESSOR hereby leases to LESSEE and LESSEE hereby leases from LESSOR a 43.52 acre +/- portion of the Total Property (including the roadway islands with signage) (the "Zoo and Gardens Parcel "), as more particularly described in Exhibit "A -1" which is attached hereto and made a part of this Lease, hereinafter also called the "Demised Premises ". Agenda Iterr October Page b. The Demised Premises shall be used and occupieu as an active uperation of the Caribbean Gardens ,and the Zoo in Naples (the "Zoo and Gardens ") open to the general public including botanical collection, animal and nature exhibits, as presently constituted and operated on the Demised Premises, in a manner substantially equal in quality or better than that established by Jungle Larry's Safariland, Inc. ( "Jungle Larry's "). LESSEE shall promote the continuing development of the Zoo and Gardens as a facility displaying wild animal species in appropriate settings for educational, recreational and wildlife conservation dedicated to the enhancement of the quality of life with the Collier County area. LESSEE shall utilize the Demised Premises for all reasonable purposes attendant to the primary purpose set forth above, including, without limitation, certain banquet, restaurant, concessions and food and beverage activities, as well as retail activities related to the purposes set forth herein. LESSEE, at its expense, shall maintain the facility in a quality at least comparable to that of the operation of Jungle Larry's on the date of this Agreement and may include expansion of the operation by providing new or other wild animals, nature exhibits, rides, food vendors, walking trails, educational demonstrations and entertainment. If additional educational, cultural and conservation programs are established by LESSEE, they shall be conducted on the Demised Premises in a manner intended to benefit the general public and the property and to maintain the Zoo and Gardens in a first - -class and accredited condition. It is understood and agreed that the buildings, private utilities (such as wells and septic systems and the pipes and lines associated therewith), signage and all other structures and improvements on the Zoo and Gardens Parcel are the responsibility of LESSEE and, whether classified as fixtures or as non - fixture improvements to the Demised Premises, shall become the property of LESSOR at the expiration or earlier termination of this Lease, as more particularly described in Article 9(d) below. c. All operations on the Demised Premises will be conducted in an orderly and proper manner considering the nature of Zoo operations so as not to unreasonably annoy, disturb, endanger or be offensive to adjoining and/or near -by property owners. LESSEE will not do or permit to be done anything that may result in the creation, commission or maintenance of a nuisance, unsanitary condition, waste and/or injury on or to the Demised Premises. LESSEE will not do or permit to be done anything that materially adversely affects the effectiveness or accessibility of the drainage system, sewerage system, and/or fire hydrants, if any, or any other utility facilities. LESSEE will collect all garbage, debris and waste material, whether solid or liquid, arising out of the improvement, maintenance, occupancy or use of the Demised Premises, shall store same pending disposal in covered or other rigidly and sturdily constructed receptacles and dispose of same off the Demised Premises at regular intervals. Notwithstanding the foregoing, animal wastes may be composted on the Demised Premises for uses in the Gardens. LESSEE will provide and use such escape - proof enclosures in conformance with Zoo Industry Standards (as hereinafter defined), appropriate for the protection of patrons and visitors to the Zoo or Gardens. LESSEE shall rise best efforts at all times to keep all wild animals within the confines of the Demised Premises. Excluding flood, fire, hurricanes and other forces of nature, beyond LESSEE's control, LESSEE shall exercise care to prevent damage to the botanical collections and rare natural foliage and plantings on the Demised Premises; shall exercise care to prevent the water produced or used upon or flowing onto the Demised Premises from reaching levels of salinity which would in any way damage or impair any planting or foliage included in the botanical collection, as now or hereafter constituted; shall keep the Demised Premises adequately fenced, including against predator(s), trespasser(s) and vandals) and all other unauthorized entries. d, Under appropriate arrangements with the City of Naples, Florida, a Florida Municipal Corporation, LESSEE shall continue, through the Lease Term, as it may be extended, to maintain, in the same manner as heretofore maintained, the current entrance sign (or its replacement), grass and other planting within the median island area of Seventeenth Street North, also known as Fleischmann Boulevard. Said median island area (approx. 0.02 acres + / -) is described in Exhibit A as a part of the Demised Premises. LESSEE shall have reasonable access to all electrical meters, electrical lines and water lines located on the adjacent property currently known as the Naples Preserve that supply the sign and its landscaping. LESSEE agrees LESSOR may erect and maintain a sign or other appropriate marker in a prominent location an the Demised Premises, at a location agreeable to LESSEE and LESSOR, visible from a public road, bearing information indicating the Demised Premises is protected by LESSOR (and its successor). LESSOR shall determine the wording of the sign or marker. LESSOR shall be responsible for the costs of erecting and maintaining such sign or marker. If the sign is not properly maintained in good condition, LESSEE will notify LESSOR. If the condition is not corrected within sixty (60) days after notice, LESSEE may remove the sign. e. LESSEE understands and agrees that the portion of the Demised Premises described on the attached Exhibit "A -2" shall be used by LESSEE for over -flow parking of its guests and invitees, and, with twelve (12) of the spaces being made available for parking by the general public in order to access the Gordon River over and through other adjacent lands of LESSOR. LESSEE shall maintain the property described on Exhibit "A -2" in the same manner and to the same extent as described herein for the Demised Premises. In Agenda Item October Page r the future., if LESSOR requires improvements to this parking area, which improvements shall be limited to paving or other permeable surface (such as crushed shells or marl), LESSOR and LESSEE shall investigate the relative costs of the improvements and future costs of maintenance. LESSEE agrees to maintain the improved parking surface and to share 50:50 with LESSOR in the costs of such improvements and maintenance. ARTICLE 2. Term of Lease a. Term. Unless otherwise terminated pursuant to the provisions hereof, LESSEE shall have and hold the Demised Premise for a term of Ten (10) years, commencing on December 19, 2005 ( "Lease Term Commencement Date ") and ending December 18, 2015, unless earlier terminated pursuant to the terms hereof (the "Lease Term "). b. Renewal. LESSEE is granted the option, provided it is not then in default of any of the provisions of this Lease, to renew same for four (4) separate, additional and sequential terms of ten (10) years, under the same terms and conditions, as provided herein, except as to the base rental amount, which is to be adjusted periodically as provided herein, by delivering written notice of LESSEE'S unconditional intention to renew to the LESSOR at least two (2) years prior to the expiration of the then existing Lease Term or renewal period. Said notice shall be effective upon actual receipt by the LESSOR. Failure of LESSEE to provide such written notice shall be deemed conclusive evidence of LESSEE's waiver of its option to renew. Each 10- year extension shall be a separate decision (i.e. the second option to extend does not take effect until the end of the first renewal period.) Notwithstanding the foregoing, each such renewal term must first be approved by a majority vote of the Collier County Beard of County Commissioners prior to each respective renewal taking place. c. LESSEE's Right to Terminate. Upon two (2) year's prior written notice to LESSOR, given during the Lease Term or any extension thereof then in effect, LESSEE may, without cause, elect to terminate this Lease Agreement, If LESSEE so elects, the provisions of ARTICLE 18 shall govern. d. LESSOR's Right to Terminate. Upon two (2) year's prior written notice to LESSEE, given during the Lease Term or any extension thereof then in effect, LESSOR may, without cause, elect to terminate this Lease Agreement. If LESSOR so elects, LESSOR agrees to pay to LESSEE, at the time of termination, the unamortized cost of any improvement made by LESSEE to the Demised Premises approved by LESSOR in accordance with ARTICLE 9 hereof 'based on a ten year amortization period. LESSEE agrees that the payment of such unamortized costs of such improvements will be based on adequate documentation of the costs of such improvements and shall not include the value of donated materials and/or labor. No improvements will be made during the two -year Disposition Period (as herein defined) after notice is given. ARTICLE 3. Rent LESSEE hereby covenants and agrees to pay as rent for the Demised Premises the following sums: a. Base Rent of Two Hundred Thirty -five Thousand Five Hundred ($235,500.00) Dollars ( "Base Rent ") per annum in equal monthly installments of Nineteen Thousand Six Hundred Twenty -Five Dollars and 00 /100 Cents ($19,625.00) each, all in advance on the first day of every calendar month during the term hereof. If the terms of this Lease commence or end on a day other than the first day of the month, LESSEE shall pay base rent equal to one thirtieth (1 /30th) of the monthly base rent multiplied by the number of rental days of such fractional month. b. LESSEE will also be responsible for the payment of additional rent as provided for in ARTICLE 4 of this Lease. c. Having taken into consideration those benefits provided by LESSEE, as services in lieu of rent, as discussed in ARTICLE 3 e. below, and to the extent that the following formula would generate rental in excess of the Base Rent, LESSEE shall pay the excess rental amount to LESSOR: 1. During the Lease Term, as it may be renewed from time to time, LESSEE shall pay to LESSOR the following percentages of Gross Receipts from Services (as herein defined) performed or rendered and Gross Receipts from Sales (as herein defined) made by LESSEE on the Demised Premises: Agenda Item N October 2 Page 62 i. Six percent (6 %) of the first Seven Hundreti ritty Thousand Dollars ($750,000.00) of such gross receipts; and ii. Seven percent (7 %) of the gross te.ceipts in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00). As examples of when the Percentage Rent would or would not be paid are as follows: If the Gross Receipts from Sales or Services (as a total amount) totaled $3,000,000, the following calculation would be made: 6% of $750,000 = $ 45,000 7% of $2,250,000 =$157,500 Total = $202,500 which is less than the Base Rent of $235,500 so no Percentage Rent is due. If the Gross Receipts from Sales or Services (as a total amount) totaled $4,000,000, the following calculation would be made: 6% of $750,000 = $ 45,000 7% of $3,250,000 = $227,500 Total= $272,500 which is $37,000 more than the Base Rent of $235,500 so $37,000 in Percentage Rent would be due in addition to the Base Rent. 2. "Gross Receipts from Services" shall include all revenue realized by LESSEE from operations upon the Demised Premises, including but not limited to: parking fees, gate admissions, all in -park charges (rides, exhibits, shows or other amusements) and /or for other services made available to patrons; also revenues from radio and/or television shows or programs originating from the Demised Premises; motion pictures or other photographic items produced on the Demised Premises; catering of parties and similar activities on the Demised Premises, and fees for rental of area within the Demised Premises for such parties and any other revenue produced from the Demised Premises other than from Gross Receipts from Sales. 3. "Gross Receipts from Sales" shall include the gross revenue from sales of food, beverages, souvenirs, and all other merchandise or commodities on or sold from (such as by means of the Internet) the Demised Premises, whether made or produced thereon or purchased off -site for resale on the Demised Premises. Such commodities also include the sales through vending machines or by concessionaires (limited to those amounts actually paid over to LESSEE.). Such Gross Receipts from Sales also shall include the sales of livestock produced by breeding on the Demised Premises but shall be off -set by any portion of such livestock proceeds that are utilized for the transportation or purchase of other animals and/or livestock within twelve (12) calendar months of the actual receipt of such income. In no event will the proceeds of the sale of any livestock or animals which occurs during the Disposition Period (as hereinafter defined in Article I8 be utilized in the calculation of any rent payment due LESSOR. 4. Gross Receipts from Services and Gross Receipts from Sales shall exclude any refunds or cash register adjustments made by LESSEE in the normal course of business, and shall exclude sales and/or other taxes collected by LESSEE from customers or admittees and remitted by LESSEE to the State of Florida. 5. Gross Receipts from Services and Gross Receipts from Sales shall also exclude any revenue derived by LESSEE, in its capacity as a non - profit corporation, resulting from fund - raising efforts attendant to the operation of the Zoo and Gardens provided all �such fundraised funds are used solely by LESSEE in the furtherance of the educational, cultural, conservation or public purposes of the Zoo and Gardens such as capital improvement of facilities, exhibits, animal collections, endowments for the upkeep of such additional capital improvements; care and feeding of the animals, protection of the botanical collection and preservation of wildlife habitat, reasonable personnel expenses and administrative costs approved by the LESSEE's Board of Directors. It is understood by LESSEE that LESSOR or its successor in interest, Collier County, shall have no obligation to provide funds and/or any in -kind consideration for the expansion, maintenance, repair, or operation of the Zoo and/or Gardens, or otherwise. 6. Settlements with respect to the percentage rent payments accruing hereunder shall be made one time annually. Settlements shall be made within twenty -one (21) days following the close of either each Lease Year (hereinafter, each Lease Year is defined as the "Operating Period ".) Settlements shall be supported by LESSEE's statements of all receipts and revenues for the Operating Period being settled and by copies of the monthly sales tax reports submitted to the State of Florida. if the percentage rent payment calculated at the enfl of each Operating Period exceeds the monthly Base Rent, LESSEE shall remit such difference to Agenda Item N October 27 Page 63 LESSOR within ten (10) business days. If the percentage rent payment calculated at the end of each Operating Period is less than the monthly Base Rent, no payment will be due to LESSOR other than the Base Rent. LESSOR's accountants shall have full access, at all reasonable times and places in Naples, Florida, to the books, cash registers and accounts of LESSEE pertaining to the operation of the Demised Premises (including any fundraising) for the purposes of verifying gross receipts and revenues realized by LESSEE. All such items shall be maintained and retained by LESSEE on the Demised Premises. d. LESSOR has the right to review the Base Rent provisions at the end of each five -year period during the Lease Term and each renewal term thereof. If LESSOR determines that the Base Rent is not keeping pace with inflation or the annlirahle cnngumPr price index, and LESSOR determines in its sole but reasonable discretion that the operation of the Zoo and Gardens is generating sufficiently more revenue than at the commencement of the five year period then just past, LESSOR may increase the Base Rent by no more than the total increase in the applicable consumer pnce index over the previous five year period. C. It is understood by LESSEE that LESSOR has and will continue, in its determination of Base Rent or any increase in Base Rent, to take into account the benefits provided by LESSEE to the citizens of Collier 'County and the general public, considered by LESSEE and LESSOR as services in lieu of rent. LESSEE has provided LESSOR with an extensive list of the benefits it has provided to the citizens of Collier County and the general public. LESSEE shall continue to provide the items listed below (t through 7, inclusive) during the Tenn of this Lease, except to the extent, if any, that LESSOR may from time -to -time agree only by amendment to this Agreement that the respective benefit can be modified or eliminated. Each such Amendment shall specifically state that it is amending the respective sub- paragraph(s) of Article THREE, paragraph (e) of this Agreement. Those benefits must be continued because each is a material consideration for this Lease. Such benefits, which must meet or exceed the 2005 baseline programs, (unless otherwise modified by agreement of the parties) are the following: (1) LESSEE offers a variety of discounts to local residents. These include opportunities throughout the year such as free admission for children Friday through Monday around school holidays. In addition, the zoo now offers Collier residents (adults and children) completely free admission at least one Saturday per month when entering before 1 l a.m. (2) For residents, LESSEE offers a 50% discount on family memberships. The membership includes up to 2 adults and all dependent children living in the same household up to age 21. (3) LESSEE offers complimentary admission and/or deeply discounted rates to various children's groups, Collier County school groups, and County and Municipal parks and recreation programs. (4) LESSEE employs full and part -time employees. Such employees have access to health care benefits paid in whole or in part by LESSEE. A life insurance policy is provided to employees at no charge. Dental insurance is also available through a group plan. Benefit programs for employees will be consistent with the Zoo Industry Standards (as hereinafter defined). (5) LESSEE provides deeply discounted admissions for school children visiting the zoo. The zoo recently dedicated a position to group sales and is enhancing its onsite education to better service the growing need for curriculum - fulfilling field trips. (6) LESSEE also contributes to the local economy by using many local services for construction, printing, and technology. In regard to economic impact, over 70% of zoo visitors in March 2005 came from over 150 miles away including all 50 states and 20 foreign countries thus contributing to the local economy by contributing to overnight stays. (7) Locally, LESSEE will continue to provide an exhibit for best management practices for Backyard Wildlife Habitat to illustrate to guests how they can provide elements beneficial to songbirds, butterflies and other wildlife whether they have a condominium balcony, back lawn, or acres of space. (8) LESSEE will support local and international conservation. LESSEE will promote sustainable practices to its guests and sphere of influence. LESSEE will also cooperate with other conservation organizations to promote like - minded efforts. f. Base Rent will be abated pro -rata for any days that the Zoo and/or Gardens are not open to the public for business as a result of Force Majeure, as defined in Article 19 i. below. Provided, however, Agenda Item October Page E LESSEE agrees, in the event of a Force Majeur.. ,;l> iu correct such problem and re-open for business as soon as reasonably possible. ARTICLE 4. Additional Rent Other Expenses and '1 harges) This is a Triple Net (Net Net Net) Lease. LESSEE shall pay all costs associated with the Demised Premises including and not limited to, all current and/or future applicable taxes, permits, approvals, licenses necessary for its operation, trash removal services and any and all utility charges. Utility charges shall include and not be limited to electricity, light, heat, air conditioning, power, potable water, irrigation water, sewer and telephone and all other communication services, used, rendered or supplied thereupon or in connection with the Demised Premises. ARTICLE 5• Title Matters/Permitted Encumbrances LESSOR has advised LESSEE that as of the Effective Date of this Lease Agreement, the Demised Premises are, and as of the Lease Term Commencement Date, the Demised Premises will be, subject to those matters set forth in Exhibit "B" attached hereto (the "Permitted Encumbrances "). LESSEE will at all times 'comply with the Permitted Encumbrances in all activities relating to the Zoo and Gardens. In addition, LESSEE takes the Demised Premises subject to, and admits notice of, the existence of any and all water (potable and/or irrigation), wastewater, storm .water, sewer, gas, electric and other utility lines, wires and other facilities or capital improvements, whether recorded or unrecorded, located beneath, upon or above the Demised Premises, all of which are deemed to be Permitted Encumbrances. The existence of same will not constitute any breach of covenant on the part of LESSOR, nor will LESSEE be entitled to require the removal of any thereof, LESSOR reserves the right, for itself or any other owner of such utility lines, wires, and other facilities and tangible things, at all times to have reasonable access thereto for the purposes of operation, maintenance, repair, replacement or removal of any thereof; provided, however, that upon completion of any such work for which access is obtained, LESSOR or such other utility owner shall, at no cost to LESSEE, restore the affected improvements and/or surface of the land to substantially the condition in which it or they existed immediately prior to access and work, to the extent that the restoration to such condition is reasonably practicable. If any such work needs to be completed in the area of animal habitats or exhibits, the utility owner will be required by LESSEE, prior to entrance, to strictly abide by any instructions or demands of, and cooperate with, LESSEE with respect to any activity that may disturb the animals. Otherwise, the parties acknowledge that the terms of any existing easement document will govern the activities of such utility owner. ARTICLE 6. Accessibility and Admissions a. Accessibility. LESSEE will operate the Zoo and Gardens at reasonable hours year round excepting historical holidays and forced closures caused by Force Majeure (as defined in Article 19 i. below) with the goal of providing broad access to the Zoo and Gardens for County residents and the general public. b. Admissions. LESSEE will have exclusive authority to set admission fees and other user fees for the Zoo and Gardens and to budget and expend the revenues from such fees. ARTICLE 7. Zoo Operations LESSEE will maintain the Zoo and Gardens as a permanent and general collection of animals and related horticulture as well as the botanical garden collection on the Demised Premises. LESSEE will at all times cause the Zoo and Gardens to be operated in accordance with the following performance standards; a. LESSEE will maintain membership in and accreditation by the American Zoo and Aquarium Association, or its successor or any other national organization having responsibility for the accreditation of zoological facilities ( "AZA "). Notwithstanding the foregoing, if such accreditation in such organization is not possible due to requirements that cannot reasonably be met by the Zoo and Gardens (including, for example, the size and areas needed to maintain certain habitats, the requirements to include certain animals that are beyond the financial means to provide (panda environments; elephant herd habitats; penguin or other controlled climate species) LESSEE, in consultation with LESSOR, will determine what other organization governing zoo operations will be the new entity providing certification or accreditation of LESSEE's operation of the Zoo and Gardens. Agenda Item October Page 6 b. LESSEE will maintain and operate tine Loo and Gardens in a manner consistent with the then - existing Zoo Industry Standards (as hereinaftea defined). LESSEE may, at its discretion, loan any animal for breeding purposes and, further, may dispose of any animal deemed by LESSEE to be surplus. Reports of deceased animals, animals on loan, w +n na deemed to be surplus will be kept by LESSEE as part of its animal inventory, available for review upon reasonable prior request by LESSOR. Notwithstanding the foregoing, if such accreditation in such organizations is not possible because of the requirements discussed in Article Ta. above, the LESSEE and LESSOR will determine reasonable alternative standards for the Zoo maintenance and operation, such as the U.S. Department of Agriculture standards. c. LESSEE will provide non - discriminatory access to the public. d. LESSEE will continue the Zoo and Garden's educational and conservation programming. e. LESSEE will hire and employ such personnel as will, in LESSEE's judgment, be necessary to operate, manage and maintain the Zoo and Gardens in accordance with thi provisions of this Lease Agreement. LESSEE will have sole responsibility to determine its policies and practices. f. LESSEE will hold title, or have contractual rights under animal loans, to all existing and future zoo animals for the benefit of the public for scientific, conservation, educational and recreational purposes. LESSEE will, subject to available resources, purchase or otherwise acquire additional animals for the Zoo and Gardens. g. LESSEE will properly care for, feed, supervise and maintain all of the zoological and botanical collection at the Zoo and Gardens in a clean and sanitary condition in accordance with Zoo Industry Standards. h. LESSEE agrees to maintain and preserve (to the extent possible) the historic botanical specimens that remain on the Demised Premises from the original Nehrling collection. Thd original Nehrling botanical gardens and residence occupied approximately thirteen (13) acres of the Demised Premises (the "Nehrling Area "). The footprint of the Nehrling Area was extensively altered during the ownership by the Fleischmann family by the installation of the paths and the monkey pond. However, some of the original botanical specimens planted by Nehrling have survived and have been maintained by LESSEE. LESSOR agrees that the remaining Nehrling Area will not be designated as an historic preservation site without the consent of LESSEE, which consent will not unreasonably he withheld. Before agreeing to such designation, LESSOR will consider any unreasonable hardship on the operation of the Zoo and Gardens that an historic designation may cause. The parties agree that whether a prope!-ty is or is not designated as a historical preservation site is not an exercise of LESSOR'S police powers. ARTICLE 8. Maintenance and Repair a. LESSEE shall, at its sole cost and expense, maintain and repair the Demised Premises on a regular basis from time to time in order to always and continuously keep the Zoo and Gardens in good working order, in a safe and orderly condition and in substantial compliance with Zoo Industry Standards (as hereinafter defined). If said Demised Premises are not in such compliance in the reasonable opinion of LESSOR, as LESSOR may be advised by the U.S. Department of Agriculture Inspector, LESSEE will be so advised in writing. If corrective action, is not begun within thirty (30) days of the receipt of such notice and prosecuted diligently until corrective action is completed, LESSOR may cause the same to be corrected and LESSEE shall assume and pay all such reasonable maintenance and repair costs, and such costs shall constitute ADDITIONAL RENT which shall he paid by LESSEE within ten (10) days of receipt of written notice of costs incurred by LESSOR. b. LESSEE, at no cost or expense to LESSOR, shall repair all damage to the Demised Premises caused by LESSEE, its employees, agent(s), independent contractor(s), guest(s), invitee(s), licensee(s), patron(s), and/or trespasser(s). c. "Zoo Industry Standards" refers to the practices, methods, standards, and/or acts that are used by a significant portion of the zoological facilities maintaining accreditation by the AZA (as such facilities may be located in major cities of the United States) in the operation, maintenance, development, redevelopment of zoo facilities and animal collections, and which, in the exercise of reasonable judgment in the light of facts actually known, or reasonably should have been known, at the time a decision was made, would reasonably Agenda Item October Page E have been expected to accomplish the desired ie.uii ui lijw�a rea�ooabie cost, consistent with licensing and regulatory considerations, environmental considerations, reliability, safety and expediency. Zoo Industry Standards are not intended to be limited to the optimum practices, methods, standards or acts, to the exclusion of all others, but rather to be an accepted range of practices, methods, standards or acts employed by constructors, owner, or operators of facilities similar in size, locale and operation characteristics to the Zoo and Gardens. ARTICLE 9. Modifications Additions Alterations and Improvements a. Prior to making any significant modifications, additions, alterations, improvements or replacements to or on the Demised Premises 'or to any existing improvements thereon (significant is defined as projects costing in excess of $25,000 in the aggregate, during any 365 -day time frame, to complete; such amount being subject to adjustment based on changes in the Consumer Price Index), LESSEE must provide to LESSOR all proposals and plans for alterations, improvements, modifications, additions and/or replacements to the Demised Premises for LESSOR'S written approval, specifying in writing and in meaningful detail, the nature and extent of the desired alteration, improvement, modification, addition, or replacement, along with the contemplated starting and completion time for each such project. LESSOR or its designee will then have sixty (60) days after receipt of such proposals or plans within which to approve or deny the respective project in writing. LESSOR shall not unreasonably withhold its consent to required or appropriate alterations, improvements, modifications, additions, or replacements proposed by LESSEE. b. LESSEE covenants and agrees in connection with any maintenance, repair work, erection, construction, improvement, addition, replacement or alteration of any such project, to observe and comply with all then existing applicable laws, ordinance, rules, regulations,, and requirements of the United States of America, State of Florida, County of Collier, and any and all other governmental agencies with jurisdiction over such work. c. LESSEE shall pay the entire cost of any new construction upon the Demised Premises or the alteration of any structure, landscaping or impoundment situated thereon, as well as the cost of any equipment required in connection with any operations to be conducted by LESSEE. Prior to any modification, addition, alteration, replacement or improvement to the Demised Premises approved by LESSOR, LESSEE shall provide either (1) reasonable evidence acceptable to LESSOR that LESSEE has available sufficient funds, either on hand, or good faith pledges of contributions and/or grants, to ensure the completion of the proposed project and full and timely payment of debt service and capital expenses or (2) a construction bond in a sufficient sum to cover the costs of the proposed project should LESSEE fail to complete it once started. In addition, prior to undertaking any improvements in excess of $500,000 in hard costs, LESSEE will contractually require the construction contractor(s) to provide separate payment and performance bonds in accordance with then applicable law. d. All alterations, improvements and additions, etc., including non - fixture improvements, to said Demised Premises are and shall continue to be property of LESSEE. Prior to the termination of this Lease or prior to the termination of any renewal term hereof, or the expiration of this Lease, or within thirty (30) days thereafter, if LESSOR so requests, LESSEE shall promptly remove the additions, improvements, alterations, fixtures and installations which were placed in, on, or upon the Demised Premises by LESSEE, and repair any damage occasioned to the Demised Premises by such removal; and in default thereof, LESSOR may complete said removals and repairs at LESSEE'S expense. As long as such termination is not due to the default of LESSEE, LESSOR agrees to pay for the greater of (1) costs of removal or (2) the unamortized value of the improvements as set forth in Article 2 d. above. Additionally, if LESSOR wishes the improvements to remain, LESSOR shall reimburse LESSEE for the costs thereof as set forth in Article 2 d. above. e. LESSEE will comply with any and all requirements of the Americans with Disabilities Act, 42 U.S.C. Sec. 12101, et seq., ( "ADA "), including, but not limited to, the removal of all structural barriers, the accessibility of programs, services and goods, the provision of all auxiliary aids and services, and the modification of policies, practices and procedures as and when practicable. f. Notwithstanding the foregoing, LESSEE shall be entitled to make the following modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any existing improvements thereon without prior approval of LESSOR (although notice will be given for informational purposes): 1. those required by the day -to -day operations of the Zoo and/or Gardens; 2. those required by the AZA; 3. those required by emergency situations where the time required for approval by LESSOR could Agenda Item N October 2 Page 67 endanger the well -being of the Zoo animals and/or employees, invitees, patrons or guests; and/or 4. all other modifications, additions, alterations, improvements or replacements to or on the Demised Premises or to any existing improvements thereon which do not, in the aggregate, cost more than $25,000 in any 365 -day time frame to complete (such amount being subject to adjustment periodically based upon changes in the Consumer Price Index for Southwest Florida). ARTICLE 10. Extent of Liens LESSEE is required to and shall keep the Demised Premises free from any liens arising out of any work performed, materials furnished or obligations incurred by or for LESSEE and any other liens and/or any other encumbrance(s) placed thereon during the term of this Lease, or any extensions nereof. All individuals and/or entities to whom these presents may come are put upon notice that no interest of the LESSOR in the Demised Premises shall be subject to liens for improvements made by the LESSEE, also liens for improvements made by the LESSEE are specifically prohibited from attaching to or becoming a lien on any interest of the LESSOR in the Demised Premises or any part of either. This notice is given pursuant to the provisions of and in compliance with Section 713, 10, Florida Statutes. ARTICLE 11. Casualty and Condemnation a. Casualty. If the Zoo and/or Gardens are destroyed, rendered substantially untenantable, or damaged to any material extent, as reasonably determined by LESSEE and LESSOR, by fire or other casualty, and LESSEE elects not to repair or replace the improvements or personal property, then LESSEE or LESSOR may terminate this Lease Agreement by providing notice to the other party within ninety (90) days after the occurrence of such casualty. The termination will be effective on the ninetieth (90th) day after such fire or other casualty, unless extended by mutual written agreement of LESSOR and LESSEE. During the period between the date of such casualty and the date of termination, LESSEE will close the Zoo and Gardens or affected portions thereof as may be necessary or appropriate to protect the health and safety of the patrons find/or visitors to the Zoo and/or Gardens and of the Zoo animals. If this Lease Agreement is not terminated as set forth herein, or if the Zoo and/or Gardens are damaged to a less than material extent, as reasonably determined by LESSEE and LESSOR, LESSEE will proceed with reasonable diligence, at no cost or expense to LESSOR, to rebuild and repair the Zoo and/or Gardens to substantially the condition as existed prior to the casualty. Notwithstanding any such termination, LESSEE shall have the two -year Disposition Period (as defined in Article 18 below) to remove its animals and any personal property, understanding that such relocation will take longer than 90 days. b. Condemnation. Promptly upon becoming aware of the commencement of any effort to acquire any part of the Demised Premises by a condemning authority, LESSOR will give notice to LESSEE thereof. If all or a substantial part (as reasonably determined by LESSOR and LESSEE) of the Zoo and Gardens are taken through a condemnation, then LESSEE or LESSOR may terminate this Lease Agreement by giving notice to the other party hereto within sixty (60) days after the date LESSOR is served with condemnation pleadings. If this Lease Agreement is so terminated, all compensation awarded for any condemnation of the Zoo and/or Gardens will be allocated between LESSEE and LESSOR, as their interests may then appear and be valued by the condemning authority or by jury. If this Lease is not so terminated as provided above, the portion of compensation awarded for the part of the land taken will be the property of LESSOR and the portion of compensation awarded for the part of the leasehold, improvements, fixtures, or personal property of LESSEE shall be paid over to LESSEE for the restoration of the remaining portion of the Zoo and/or Gardens. ARTICLE 12. Access to Demised 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 Demised Premises or any part thereof during business hours, or such other times with the consent of LESSEE, to inspect the Zoo and/or Gardens and/or to verify compliance with the terms of this Lease Agreement and/or for the purpose of examining the same and making any required repairs not being timely completed by LESSEE, as more particularly described in ARTICLE 8, above. LESSOR appoints Collier County's Real Estate Services Department's Property Manager as the authorized agen , . who will have the specific responsibility as LESSEE's primary contact person for matters under this Lease Agreement. LESSEE appoints its Executive Director and the President of LESSEE's Board of Directors (or their successors or designees) as the designated agents for Agenda Item October Page 6 LESSEE. LESSEE agrees to provide reasonable acvan= notice by telephone or e -mail to LESSOR's representative to LESSEE's Board of Board meetings. ARTICLE 13. Assignment and Subletting a. LESSEE shall not assign this Lease Agreement nor attempt to sublet the whole or any part of the Demised Premises, or permit any other person(s) to occupy same without the expressed prior written consent of LESSOR. Any such assignment or subletting, even with the consent of LESSOR, shall not relieve LESSEE from liability for payment of rent and/or other sums herein provided or from the obligation to keep and be bound by this Lease Agreement, unless expressly released from this Lease Agreement in writing by LESSOR. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease, or to be a consent to the assignment of this Lease or subletting of the Demised Premises. Any such attempt shall be void ab inirio. LESSEE's contracts and occupancy agreements with concessionaires on the Demised Premises will not be deemed to be assignments or subleases of this Lease Agreement and are not prohibited by this Article. The words "assign" or "sublet" include any transfer of any type or description whatsoever. No such transfer shall be a novation unless a novation is expressly agreed to by LESSOR. b. LESSOR is specifically authorized and permitted to assign this Lease Agreement and its interest as landlord under this Lease Agreement to Collier County or any other agency of the County. After such assignment, the Trust for Public Land will be released from all liability arising after the date of the assignment. c. LESSEE is specifically authorized and permitted to license portions of the Demised Premises to vendors servicing the Demised Premises and other organizations such as conservation groups and federal programs involved in the restoration of certain plant species and/or wildlife. d. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. ARTICLE 14. INDEMNITY AND DEFENSE OF CLAIMS a. IN CONSIDERATION OF TEN DOLLARS ($10.00), THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, LESSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR, ITS AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY (STATUTORY OR OTHERWISE), DAMAGES, CLAIMS, SUITS, DEMANDS, JUDGMENTS, COSTS, INTEREST AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES AND DISBURSEMENTS BOTH AT TRIAL AND ALL APPELLATE LEVELS) ARISING, DIRECTLY OR INDIRECTLY, FROM ANY INJURY TO, OR DEATH OF, ANY PERSON OR PERSONS OR DAMAGE TO PROPERTY (INCLUDING LOSS OF USE THEREOF) RELATED TO (A) LESSEE'S USE OF THE DEMISED PREMISES, (B) ANY WORK OR THING WHATSOEVER DONE, OR ANY CONDITION CREATED (OTHER THAN BY LESSOR, ITS EMPLOYEES, AGENTS OF CONTRACTORS) BY OR ON BEHALF OF LESSEE IN OR ABOUT THE DEMISED PREMISES, (C) ANY CONDITION OF THE DEMISED PREMISES DUE TO OR RESULTING FROM ANY ACTION OR INACTION BY LESSEE IN THE PERFORMANCE OF LESSEE'S OBLIGATIONS UNDER THIS LEASE AGREEMENT OR OTHERWISE, (D) ANY ACT, OMISSION OR NEGLIGENCE OF LESSEE OR ITS AGENTS, CONTRACTORS, EMPLOYERS, SUBTENANTS, LICENSEES OR INVITEES OR (E) AS A RESULT OF THE PRESENCE OF HAZARDOUS MATERIALS ON THE DEMISED PREMISES IN VIOLATION OF ARTICLE 20 HEREUNDER. b. LESSOR SHALL NOT BE LIABLE FOR ANY INJURY OR DAMAGE TO PERSON OR PROPERTY CAUSED BY THE ELEMENTS OR BY ANY OTHER PERSONS IN THE DEMISED PREMISES, OR FROM THE STREET OR SUB - SURFACE, OR FROM ANY OTHER PLACE, OR FOR ANY INTERFERENCE CAUSED BY OPERATIONS BY OR FOR A GOVERNMENTAL AUTHORITY IN CONSTRUCTION OF ANY PUBLIC OR QUASI - PUBLIC WORKS OR OTHERWISE. c. LESSOR SHALL NOT BE LIABLE FOR ANY DAMAGES TO OR LOSS OF, INCLUDING LOSS DUE TO THEFT, ANY PROPERTY, OCCURRING ON THE DEMISED PREMISES OR ANY PART THEREOF, AND LESSEE AGREES TO HOLD LESSOR HARMLESS FROM ANY CLAIMS FOR 10 Agenda Item N October 27 Page 69 DAMAGES, EXEPT WHERE SUCH DAMAGE OR D JURY IS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR OR ITS OFFICERS, EMPLOYEES OR AGENTS, ALL OF WHOM WHILE ACTING WITHIN THE SCOPE OF THEIR RESPECTIVE AUTHORITY. d. In case any action or proceeding is brought against LESSOR by reason of any one or more of such indemnified claims, LESSEE shall pay all costs, attorneys' fees, expenses and liabilities resulting therefrom and shall defend such action or proceeding if LESSOR shall so request, at LESSEE'S expense, by counsel reasonably satisfactory to LESSOR. It is specifically agreed however, that LESSOR may at its own cost and expense participate in the legal defense of such claim, with iegal counsel of its choosing. e. In no event wilt any elected official or employee of the County or any director, officer or employee of LESSOR have any personal liability for actions taken by such individual in good faith in the course of carrying out his or her responsibilities on behalf of the County, or LESSOR, pursuant to this Lease Agreement. ARTICLE 15. Insurance a. LESSEE shall provide and maintain general liability and property liability insurance policy(ies), approved in writing by LESSOR and the Collier County Risk Management Department, for not less than Three Million Dollars and No /Cents ($3,000,000.00) combined single limits during the term of this Lease Agreement. If such amounts are less than the Zoo Industry Standards or good insurance industry practice would require, LESSOR reserves the right to increase these insurance limits by providing LESSEE with at least sixty (60) days' advance notice to do so. b. In addition, LESSEE shall provide and maintain Worker's Compensation Insurance covering all employees meeting the then existing Statutory Limits in compliance with the applicable state and federal laws. The coverage shall include Employer's Liability with a minimum limit of One hundred Thousand Dollars and No /100 Cents ($100,000.00) per each accident. If such amounts are less than the Zoo Industry Standards or good insurance industry practice would require, LESSOR reserves the right to increase these insurance limits by providing LESSEE with a' least sixty (60) days' advance notice to do so. c. LESSEE shall also maintain standard fire and extended coverage insurance on the additions and improvements located on the Demised Premises and all of LESSEE's property located on or in the Demised Premises including, without limitation, furniture, equipment, fittings, installations, fixtures (including removable trade fixtures), personal property and supplies, in an amount not less than the then- existing full replacement value. d. Business Automobile Liability Insurance, and Business Boat Liability Insurance, for automobiles and boats used by LESSEE in the course of its performance under this Lease Agreement, including Employer's Non - Ownership and Hired Auto Coverage, each said policy in amounts of $1,000,000 combined single limit per occurrence. If such amounts are less than the Zoo Industry Standards or good insurance practice would require, LESSOR reserves the tight to increase these insurance limits by providing LESSEE with at least sixty (60) days' advance notice to do so. e. Automobile Physical Damage Insurance covering all vehicles used on or about the Zoo and Gardens and all of LESSEE's other owned or leased vehicles for Collision and Other Than Collision Perils within a maximum deductible of $1,000 per accident. f. All of the above - described insurance policy(ies) shall list and continuously maintain LESSOR, as well as its Officers, employees, representatives and agents, as additional insureds 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, 33962, for approval prior to the commencement of this Lease Agreement; and shall include a provision requiring not less than ten (10) days prior written notice to LESSOR in the event of cancellation or changes in policy(ies) coverage. If such amounts are less than the Zoo Industry Standards or good insurance practice would require, LESSOR reserves the right to reasonably arnend their insurance requirements by issuance of notice in writing .o LESSEE, whereupon receipt of such notice LESSEE shall have thirty (30) days in which to obtain such additional insurance. The issuer of any policy must have a certificate of authority to transact insurance business in the State of Florida and must be rated "A" or better in the most current edition. of Best's Insurance Reports. Each insurer most be responsible and reputable and must have financial capacity consistent with the risks covered. Each policy must contain lI Agenda Item N B October 27, 9 Page 74 M9 an endorsement to the effect that the issuer ...., a a;,- right of subrogation to recover against LESSOR, its employees, representatives and agents. g. Failure to continuously abide with all of these insurance provisions shall be deemed to be a material breach of this Lease and LESSOR shall have the remedies set forth below in Article 16. ARTICLE 16. Defaults and Remedies a. Defaults by LESSEE. The occurrence of any of the following events and the expiration of the applical,le cute pei iod set furth below without such event being cured or remedied will constitute a "Default by LESSEE" to the greatest extent then allowed by law: 1. Abandonment of Demised Premises or discontinuation of LESSEE'S operation. 2. Falsification of LESSEE or a specifically authorized agent of LESSEE of any report required to be furnished to LESSOR pursuant to the terms of this Lease Agreement, 1 Filing of insolvency, reorganization, plan or arrangement of bankruptcy. 4. Adjudication as bankrupt. 5. Making of a general assignment of the benefit of creditors. 6. If LESSEE suffers this Lease to be taken under any writ of execution and/or other process of law or equity, 7. LESSEE loses the AZA accreditation for the Zoo, and such accreditation is not restored within two (2) years or such additional time as may be required if such accreditation is being diligently pursued by LESSEE, Notwithstanding the foregoing, to the extent that such loss of accreditation results from requirements of the AZA that are unreasonable or financially impracticable for LESSEE to comply with, it shall not be a default hereunder to lose such accreditation. 8. Any lien is filed against the Demised Premises or LESSEE's interest therein or any part thereof in violation of this Lease Agreement, or otherwise, and the same remains unreleased for a period of sixty (60) days from the date of filing unless within such period LESSEE is contesting in good faith the validity of such lien and such lien is appropriately bonded. 9. Failure of LESSEE to perform or comply with any covenant or condition made under this Lease Agreement, 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 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). However, the occurrence of any of the events set forth above as 16 (a). 1 through 6 shall constitute a material breach and default by LESSEE, and this Lease may be immediately terminated by LESSOR except to the extent then prohibited by law. Notwithstanding the foregoing termination of the Lease Agreement, LESSEE shall have the Disposition Period (as herein defined) to remove the Zoo animals and other property of LESSEE from the Demised Premises; the parties understanding that the relocation of Zoo animals may take significant time to safely accomplish. 10. LESSEES loss of its federal IRS tax exempt status. 11. Failure to continue those programs set forth in Article 3 e 1 -7 above, unless such failure is cured within ninety (90) days from receipt of LESSOR' written notice of default. b. Remedies of LESSOR. 12 Agenda Item P October 2' Page 71 1. In the event of the occurrence of any of the foregoing defaults in this ARTICLE 16, 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 Demised Premises, provided such entering and removal is not detrimental to the welfare of the zoo animals. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of LESSEE, all without service of notice or resort to legal process and without being deemed guilt), of trespass, or being liable for any loss or damage which may be occasioned thereby. If LESSEE does not cure the defaults in the time frames as set forth above, and LESSOR has removed and stored property, LESSOR shall not be required to store for more than thirty (30) days. ,After such time, such property shall be deemed abandoned and LESSOR shall dispose of such property in any manner it so chooses and shall not be liable to LESSEE for such disposal. 2. If LESSEE fails to promptly pay, when due, any full installment of rent or any.other sum payable to LESSOR under this Lease, and if said sum remains unpaid for more than five (S) days past the due date, the LESSEE shall pay LESSOR a late payment charge equal to five (5 %) percent of each such payment not paid promptly and in full when due. Any amounts not paid promptly when due shall also accrue compounded interest of two (2 %) percent per month or the highest interest rate then allowed by Florida law, whichever is higher ( "Default Rate "), which interest shall be promptly paid by LESSEE to LESSOR. Notwithstanding the foregoing, if such payment is delayed due to acts of god (hurricanes, flooding, wind storms etc.), it shall not be a default hereunder for such delay nor shall Default Rate interest accrue. 3. 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 of any obligation, agreement or covenant of LESSEE under this Lease Agreement, or otherwise. c. Default by LESSOR. LESSOR shall in no event be charged with default in the performance of any of its obligations hereunder unless and until LESSOR shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct such default) after written notice to LESSOR by LESSEE properly and in meaningful detail specifying wherein, in LESSEE's judgment or opinion, LESSOR has failed to perform any such obligation(s) d. Remedies of LESSEE. 1. LESSEE may sue for direct, actual damages arising out of such Default by LESSOR or 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 Lease Agreement, or otherwise. 2. LESSEE may cure such Default of LESSOR and pay all sums or do all reasonably necessary work and incur all reasonable costs on behalf of and at the expense of LESSOR. LESSOR will pay LESSEE on demand all reasonable costs incurred and any amounts so paid by LESSEE on behalf of LESSOR, together with interest accrued thereon at the Default Rate from the date so incurred until LESSEE has been completely reimbursed. e. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedy or remedies, but each and every such remedy will be cumulative and in addition to every other remedy given under this Lease Agreement or hereafter existing under law or in equity. No delay or omission to exercise any r.ght or power accruing upon any event of default will impair any such right or power nor be construed to be waived, but any such right and power maybe exercised from time to time and as often as may be deemed expedient. f. Non- Waiver. Every provision hereof imposing an obligation upon LESSEE is a material inducement and consideration for the execution of this Agreement by LESSEE and LESSOR. No waiver by LESSEE or LESSOR of any breach of any provision of this Lease Agreement will be deemed for any purpose to be a waiver of any breach of any other provision hereof or of any continuing or subsequent breach of the same provision, irrespective of the length of time that the respective breach may have continued. g. Attorneys' Tees. In the event of any litigation, including appellate proceedings, arising out of a default under this Agreement, the prevailing party shall not be entitled to recover any attomey's fees nor any costs from the nor, - prevailing party or otherwise (consistent with Article 26 below). ARTICLE 17. Notices 13 Agenda Item No MB October 27, W9 Page 72 cW9 a. Auy notice, request, demand, instruction or other rommunication to be given to either party hereunder shall be in writing, sent by facsimile with automated confirmation of receipt, or by registered or certified mail, return receipt requested, postage prepaid, transmitted or addressed as follows: If to LESSOR: The Trust for Puhlic Land 1595 Bay Street SE, Suite #3 St. Petersburg, FL 33701 Attn: John Garrison, Project Manager Telephone: (727) 895 -5090 Fax No.: (727) 895 -5190 With a copy to: Donna H. Smith Regional Counsel The Trust for Public Land 4267 NW Federal Highway, PMB 120 Jensen Beach, FL 34957 Telephone (772) 335 -3520 Fax No,: (772) 335 -1438 If to LESSEE: Naples Zoo, Inc. . 1590 Goodlette -Frank Road Naples, Florida 34102 Attn: Executive Director Telephone: (239) 262 -5409 x. 107 Fax No.: (239) 262 -6866 With a copy to: Naples Zoo, Inc. 1590 Good lette -Frank Road Naples, Florida 34102 Attn: President of Naples Zoo, Inc. Board Telephone: (239) 262 -5409 x. 107 Fax No.: (239) 262 -6866 With a copy to: Scott M. Ketchum, Esquire Law Offices of Scott M. Ketchum, P.A. 692 Goodlette Road N Naples, FL 34102 Telephone: (239) 403 -0148 Fax No.: 1239) 403 -0965 b. The facsimile numbers and addresses for the purpose of this Article may be changed by either party by giving written notice of such change to the other party in the manner provided herein. For the purpose of changing such facsimile numbers or addressees only, unless and until such written notice is received by the recipient party, the last addressee and respective address stated herein shall be deemed to continue in effect for all purposes. ARTICLE 18 Surrender of Demised Premises In order to provide for the orderly transition and reconveyance of the Demised Premises to LESSOR, LESSEE, at no cost to LESSOR, shall remove all furniture, fixtures, personal property, including all Zoo animals and any improvements completed by LESSEE (that LESSOR gives notice that it wishes demolished) prior to the expiration of this Lease and shall deliver up and sun-ender to LESSOR possession of the Demised Premises and any improvements not removed upon expiration of this Lease, or earlier termination, in as safe and orderly a condition and in good repair as the same shall be at the commencement of the term of this Lease Agreement or may have been put by LESSOR or LESSEE during the continuance thereof, ordinary wear and tear and damage by fire or the elements beyond LESSEE'S control excepted. Notwithstanding the foregoing, understanding that a zoo operation cannot be removed without a significant period of time, the parties hereto agree that the disposition period (the "Disposition Period ") for the orderly and safe removal of 14 -71- Agenda Item October Page 7 the zoo animals and fixtures will be a period of two (2) years from the time of any notice. to quit or for the last two (2) years of any term of this Lease. The parties further agree that during the Disposition Period, LESSEE shall pay percentage rent only, not Base Rent ARTICLE 19. General Provisions a. Rights not specifically granted the LESSEE by this Lease Agreement are reserved to the LESSOR. b. NET, NET, NET LEASE. LESSEE shall promptly pay any and all sales taxes, licenses, permits, a ^sessments and fees, taxes upon T.FS.SEF's operations; and taxes imposed on the leasehold interest or otherwise related to the rental of the Demised Premises to the extent applicable under law, as well as any and all other taxes legally assessed. LESSOR acknowledges that LESSEE is a not for profit entity designated as 501(c) (3) by the Internal Revenue Service. As a not for profit federal income tax exempt entity, LESSEE may be exempt from the imposition of taxes on the leasehold interest. To the extent that LESSOR is then exempt from the payment of real property taxes on the underlying fee, LESSEE shall have no obligation to pay real property taxes. However, if the form of ad valorem taxes is changed by any law and LESSOR is then required to pay such taxes on the leasehold interest, such taxes will be paid by LESSEE as pan of its triple net lease obligations hereunder. c. LESSEE agrees to pay all intangible personal property taxes that may be imposed due to the creation, by this Lease, of a leasehold interest in the Demised Premises and/or LESSEE'S use and or possession of said leasehold interest in the Demised Premises. d. Time is of the Essence. Time is of the essence in the doing, performance and observation of each and every term, covenant and condition of this Lease Agreement by LESSOR and LESSEE. e. Severability. If any provision of this I,ease Agreement is held to be unlawful, invalid, or unenforceable under any present or future iaws, such provision will be fully severable, and this Lease Agreement will then be construed and enforced as if such unlawful, invalid or unenforceable provision had not been a part hereof. The remaining provisions of this Lease Agreement will remain in full force and effect and will not be affected by such unlawful, invalid or unenforceable provision or by its severance herefrom. f. Estoppel Certificates. Within fifteen (:5) days after notice by one party to the other, the party receiving notice will execute and delver such estoppel certificates as the requesting party may reasonably require, which may be relied upon by the requesting party, financing party, or any other third party designated by the requesting party, certifying to such facts (if and to the extent true) and agreeing to such reasonable notice provisions and other matters as such requesting party or such other third party may reasonably require in connection with the business dealings of the requesting party. g. Independent Contractor. LESSEE is an independent contractor, and not any agent or representative or employee of LESSOR, nor of any Officer or employee of LESSOR. LESSEE expressly covenants and agrees that during the term of this Lease Agreement neither LESSEE, nor anyone acting on behalf of LESSEE, shall hold itself out as an employee, servant, representative or agent of LESSOR. Neither party will have the right or authority to bind the other party without express written authorization of such other party to any obligation to any third party, except as expressly provided in this Lease Agreement with respect to subleases and occupancy agreements for concessions in the Zoo and/or Gardens. No third party is intended by the parties to be a beneficiary of this Lease Agreement or to have any rights to enforce this Lease Agreement against either party hereto or otherwise. Nothing contained in this Lease Agreement will constitute the parties as partners or joint venturers 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 from participation in all health and welfare benefit plans including vacation, sick leave, severance, life, accident, health and disability insurance, deferred compensation, retirement and grievance rights or privileges. h. Entire AgreemenUAmendments. This Lease Agreement constitutes the entire agreement between the parties as to the subject matter hereof. This Lease Agreement will not be modified, altered or amended except by written instrument duly executed by both LESSEE and LESSOR. 15 Agenda Item NoWB October 27, W9 Page 74 oW9 i. Force Maaieure, Neither party to this Lease Agretr!tenL will be liable for any delay in the performance of any obligation under this Lease Agreement or of any inability to perform an obligation under this Lease Agreement if and to the extent that such delay in performance or inability to perform is caused by an event or circumstance beyond the reasonable control of and without the fault or negligence of the party claiming Force Majeure. "Force Majeure" shall include an act of God, war (declared or undeclared), sabotage, riot, insurrection, civil wrest or disturbance, military or guerrilla action, economic sanction or embargo, civil strike, work stoppage, slow -down or lock -out, explosion, fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, the binding order of any governmental authority, unavailability of supplies or products necessary for the operation of the Zoo and Gardens, and/or failure of equipment not utilized or under the control of either party hereto, provided that such equipment has been designed, constructed, operated and maintained in accordance with prudent operating practice and Zoo Industry Standards. j. Memorandum of Lease. LESSEE will have the right to record a memorandum of this Lease Agreement in the real property records of Collier County, Florida. k. Quiet Enioyment. LESSOR covenants, warrants and represents that it has the full right and power, subject to the Permitted Encumbrances, to execute this Lease Agreement and to grant the estate demised herein, and that LESSEE, on paying the rent herein reserved and performing the covenants and agreements herein contained to be performed by LESSEE, shall peaceably and quietly have, hold and enjoy the Demised Premises and all rights and privileges belonging or pertaining thereto during the Lease Term, as it may be extended. 1. Throughout this Lease, the words "law ", "rule" and/or "regulation" or similar words shall not be limited to items that are so defined, but shall apply to and include any such thing that legally applies, including ordinances and codes, m. Throughout this Lease, a list of nouns (for example: "employee ", "servant ", "representative ", and/ or "agent" shall not be construed to be limited to the listed nouns, but shall include any individual whomsoever and/or entity whatsoever to which the sentence or phrase could logically apply. ARTICLE 20. Environmental Matters a. Restrictions on Hazardous Materials. LESSEE will not transport, use, store, maintain, generate; manufacture, handle, dispose, release or discharge any Hazardous Materials (hereinafter defined)upon or about the Demised Premises, nor permit employees, representatives, agents, contractors, sub - contractors, sub - sub - contractors, materialmen and/or suppliers to engage in such activities upon or about the Demised Premises. However, the foregoing provisions will not prohibit the transportation to and from, and use, storage, maintenance and handling, within the Demised Premises of substances customarily used in owning, managing, repairing or operating similar premises devoted to uses authorized by this Lease; provided (i) such substances will be used and maintained only in such quantities as are reasonably necessary and in accordance with all then applicable laws, rules and/or regulations, and the manufacturers' instructions therefore, and (ii) such substances will be disposed cif, released or discharged at the Demised Premises in compliance with all then applicable laws, rules and/or regulations, and will be transported to and from the Demised Premises in compliance with all of the same. b. Environmental Notices. Each party will promptly notify the other party upon the notifying party's becoming aware of: (i) any enforcement, cleanup, or other regulatory action taken or threatened against either party by any governmental or regulatory body with respect to the presence of any Hazardous Material on or otherwise regarding the Demised Premises, (ii) any demands or claims made or threatened by any individual of entity against LESSOR or LESSEE relating to any Hazardous Materials, (iii) any unlawful release, discharge or non - routine, improper or unlawful disposal or transportation of any Hazardous Material on or from the Demised Premises, and (iv) any matters where a party hereto is required by law, rule and/or regulation to give a notice to any governmental or regulatory body respecting any Hazardous Materials in the building(s) or on the Demised Premises. At such times as LESSOR may reasonably request, LESSEE will provide LESSOR with a written list identifying any Hazardous Materials then actually known to LESSEE to be used, stored, or maintained upon the Demised Premises, a copy of any MSDS issued by the manufacturer thereof, written information concerning the removal, transportation and disposal of the same, and other information as LESSOR may reasonably require or as may be required by laws. 16 Agenda Item October 2 Page 7; c. Remediation. If any Hazardous Matenai is released, discharged or disposed of by LESSEE, or its employees, agents or contractors, etc., on or about the Demised Premises in violation of the foregoing provisions, or otherwise, LESSEE will immediatc!y, properly and in compliance with all applicable laws and ordinances, remediate the Hazardous Material on the Demised Premises and any other affected property, at LESSEE's sole expense. Such remediaton work will be subject to LESSOR's prior written approval, and will include, without limitation, any testing, investigation and/or preparation and implementation of any remedial plan required by any governmental body having jurisdiction. If LESSEE fails to comply with the provisions of this Article 20 within five (5) days after written notice by LESSOR, or such shorter time as may be required by law, LESSOR may (but will not be obligated to) arrange for such compliance through contractors or other parties selected by LESSOR, at LESSEE's expense. d. Definition of Hazardous Material. Hazardous Material means any substance: i.) the presence of which requires investigation, remediation, or is, or becomes regulated under any federal, state or local statute, regulation, ordinance, order, action, policy, or common law; or ii.) which is or becomes defined as a "hazardous substance," pollutant, or contaminant under any federal, state, or local statute, regulation, role, or contaminant under any federal, state, or local statute, regulation, rule, or ordinance or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) and/or the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.); or iii.) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous, or poses, or threatens to pose a hazard to the health or safety of persons on or about the Demised Premises, and is or becomes regulated by any governmental authority, agency, department, commission, board, or instrumentality of the United States, the State in which the Demised Premises are located or any political subdivision thereof. e. Environmental Indemnity. In accordance with the provisions of ARTICLE 14 hereof, LESSEE represents, warrants and agrees to indemnify, reimburse, defend and hold harmless LESSOR, from and against all costs (including attorneys fees and ali appeals) asserted against, imposed on or incurred by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state, local or common law relating to pollution or harm to the environment associated with the Demised Premises. This applies to any contamination that arises from any and all environmental testing whatsoever done on the Demised Premises. ARTICLE 21. Radon Gas In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the following: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department. ARTICLE 22. Security Provisions LESSEE fully understands that the police and law enforcement security protection provided by law enforcement agencies to the Demised Premises is limited to that provided to any other business or agency situated in Collier County, and LESSEE acknowledges that any special security measures deemed necessary for additional protection of the Demised Premises shall be the sole responsibility and cos: of LESSEE and shall involve no cost or expense to LESSOR. ARTICLE 23. Non- Discrimination/Epual Opportunity a. LESSEE in exercising any of the rights or privileges herein granted, shall not on the grounds of race, color or national origin discriminate or permit discrimination against any individual or group of individuals in any manner prohibited by Part 21 of the Rules and Regulations of the Secretary of Agenda Iten October Page -ansportation. LESSOR is hereby granted the right to take such action, anything to the contrary herein )twithstanding, as the United States may direct to enforce this nondiscrimination covenant. b. LESSEE assures that it will undertake an affirmative action program as required by 14 CFT Park 52, Subpart "E ", to insure that no person shall on the grounds or race, creed, color, nation origin or sex be xcluded from participating in any employment activities covered in 14 CFf Park 152, Subpart "E ". ESSEE assures that no person shall be excluded on these grounds from participating in or receiving the - rvices or benefits of any program or activity covered by this Subpart. c. LESSEE assures that it wili require its covered suborganizations, if any, to provide assurances to ,ESSEt That it sirrtilaily will undertake affirmative action programs and that it will require assurances from is suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. LESSOR is hereby ;ranted the right to take such action, anything to the contrary herein notwithstanding, as the Federal 3overnment may direct to enforce this nondiscrimination covenant. d. To the maximum extent permitted by applicable laws, LESSEE shall, in the conduct of its )usiness, comply with Collier County's and the State's minority, women, disadvantaged business enterprise policies from time to time in effect. ARTICLE 24. Interest of Members of Political Subdivision. No member of the governing body of the City of Naples or Collier County or any political subdivision of the State of Florida and no other officer, employee or agent of the City, County or any political subdivision of the State of Florida who exercises any functions or responsibilities in connection with the carrying out of the establishment and operation of the Zoo and/or Gardens to which this Lease Agreement pertains shall have any personal interest, direct or indirect, in this Lease Agreement. ARTICLE 25. Effective Date This Lease shall become effective upon execution by both LESSOR and LESSEE. ARTICLE 26, Governing Law and Venue This Lease shall be governed by, and construed in accordance with, the laws of the State of Florida. Any lawsuit or other action to enforce any provision of this Lease shall be filed in the Circuit Court in and for the County of Collier, Florida and each party shall be responsible to pay its own costs and attorney's fees resulting therefrom and the costs of any and all appeals. IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals. AS TO LESSOR: FIR ITNESS (signature) (pnint-narile of first witness) SECOND WITNESS (signature) yvil rif (print name of second witness) LESSOR: THE TRUST FOR PUBLIC LAND, A California not -for- profit Corporat, oe:Ft- a It le 1 'j Ft Sf A e ate. i2e c (v L Date: /a. r9 2005 18 AS TO LESSEE: �V� v FIRST WITNESS (signature) 1 eni5e- }�- er)J trub (print name of first witness) SECOND WITNNESS (signature) 6 111 , Ile p'Cee,, S (print name of second witness) i:AFLES ZOO, INC., a Iilo<<da not- for - profit Ti:ie. f c J 0. Date: DEC 5/- , 2005 19 Agenda Item October Page 7 Erhinit "AA" Description of Total Property Agenda Item October Page i Island in 17'h Ave. North, Block 38, Tier 10, Official Record Book 240, Page 93, Town of Naples, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 8, in the Public Records of Collier County, Florida; and All that part of Lot 9 of Naples Improvement Company's Little Farms Subdivision, lying south of Golden Gate Parkway, recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; and The East 564 feet of the West 1,184 feet of Lot 8 of Naples Improvement Company's Little Farms Subdivision, less road right -of -way granted in Official Records Book 876, Page 1,718, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and The East 470 feet of the West 1,654 feet of Lot 8 of Naples Improvement Company's Little Farms Subdivision recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and Alf of Lot 8 of Naples improvement Company's Little Farms Subdivision, except the West 1,654 feet, according to the plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; the East and West boundary lines of said Parcel being measured from the West line of said Lot 8 (said West line of Lot 8 lying 25.00 feet East of the North and South 1/4 Section line of Section 27, Township 49 South, Range 25 East, Collier County, Florida; and The East 338.24 feet of the West 958.34 feet of Lot 7 of Naples Improvement Company's Little Farms Subdivision, per Plat Book 2, Page 2, Public Records of Collier County, Florida, less and except that portion deeded to the Board of County Commissioners of Collier County, Florida described as : Commence at the Northwest corner of said Lot 7; thence North 89° 17' 39" East along the North line of said Lot 7 for a distance of 620.00 feet to the Point of Beginning; thence continue along the North line of said Lot 7 a distance of 41.60 feet to the point of intersection with the point of curve concave to the Northwest having a radius of 813.94.feet and a central angle of 26° 13' 03 "; thence continue Southwesterly along said curve an arc distance of 51.30 feet to a point; thence North 00° 39' 49" West 30 feet to the Point of Beginning. North 1/-z of Lot 7, less the West 1,288.34 feet of Naples Improvement Company's Little Farms Subdivision, as per plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida; and Lots 3, 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2 at Page 2, Public Records of Collier County, Florida; together with all buildings thereon; subject to the following easements of record to Florida Power & Light Company relating to said Lot 6: (a) An easement dated June 101h, 1953, recorded in Deed Book 30 at Page 395 of said Public Records; and (b) An easement dated June 10'h, 1953, recorded in Deed Book 30 at Page 397 of said Public Records. Less and except the following described property: That part of Lot 3 of Naples Improvement Company's Little Farms Subdivision, as per plat thereof recorded in Plat Book 2, Page 2, Public Records of Collier County, Florida, lying Easterly and Southerly of the following described line: Commencing at a concrete monument at the South '/4 corner of Section 27, Township 49 South, Range 25 East, Collier County, Florida; thence along the South Line of said Section North 89° 26' 09" East 753.94 feet to a point; thence South 00 21' 55" East 334.85 feet to a concrete monument on the South line of said Lot #3 and the Point of Beginning of the described line; thence along said described line and the Westerly boundary of the herein described parcel North 0° 21' 55" West 211.15 feet to a concrete monument at the Northwest corner of said described Parcel; thence along said described line and the Northerly boundary of said described parcel North 89° 38' 05" East 729.90 feet to a concrete monument; thence continue North 89° 38' 05" East 13 feet, more or less, to the Easterly boundary of Lot 3 of 2 0 Aaenda Item N o October 27 Page 79 Naples Improvement Company's Little Farms Subdivision and the Point of Ending of said described Line. The Westerly 11-2 of Lot 39 and Lot 40, Gordon River Homes Subdivision, Lots 41, 42, and 43 and the East 45 feet of Lot 44, Gordon River Homes Subdivision, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 84, in the Public Records of Collier County, Florida; and Lot 2 of Naples Improvement Company's Little Farms Subdivision, except area described in Deed Book 22, Page 393, Public Records of Collier County, Florida, and less West 25 feet and right -of -way located in Conies- County, Florida, and cxc pt puicel dezueu to Coiner County Conservancy, Inc., as Parcel 2 in Official Records Book 767, Page 249, according to the map or plat thereof on file and recorded in the Office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and All of Lot 97 of Naples Improvement Company's Little Farms Subdivision, lying South of Golden Gate Parkway, according to the plat thereof recorded in Plat Book 2, at Page 2, Public Records of Collier County, Florida; and In North %z of North V2 of Section 35, Township 49 South, Range 25 East, being at the Northwest corner of the Section and run East 1,398.25 feet; thence South 64° West 1,555.06 feet; thence North 664.01 feet to the place of beginning, Collier County, Florida; and Lot 6 of Naples Improvement Company's Little Farms Subdivision; less additional road right -of -way for Goodlette -Frank Road, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 2, Page 2, in the Public Records of Collier County, Florida; and A lot or parcel of land lying in Lot 2 of Naples Improvement Company's Little Farms Subdivision, per plat in Plat Book 2, Page 2, Public Records of Collier County, Florida, which lot is described as follows: Beginning at a point on the South line of said Lot 2, which point is the Northwest corner of Lot 50 of Gordon River Homes Subdivision per Plat in Plat Book 2, Page 84, Public Records of Collier County, Florida, run Northerly parallel to the West line of said Lot 2 for 217.5 feet; thence run Easterly parallel to the South line of said Lot for 180 feet; thence run Southerly parallel to West line of said Lot for 217.5 feet to South line of said Lot; thence run Westerly along said South line for 180 feet to Point of Beginning. Being the same premises conveyed by deed recorded in Deed Book 22, Page 393, Public Records of Collier County, Florida; less the West 40 feet thereof, and less road right -of -way for Goodlette -Frank Road. 21 Agenda Item N October 27 p Page 80 Exhibit "A -T" Description of Demised Premises Island in 17th Ave. North, Block 38, "T"ier 10, Ufficial Record Book 240, Page 93, Town of Naples, according to the map or plat thereof on file and recorded in the office of the Clerk of the Circuit Court, recorded in Plat Book 1, Page 8, in the Public Records of Collier County, Florida; and, Lot 3 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida; less and except the South 311.25 feet thereof; and All of Lots 4 and 5 of Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida; and, Lot 6, Naples Improvement Company's Little Farms Subdivision, according to the plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida, less and except the following described property: Beginning at the Northwest corner of said Lot 6, run South along the West line of said Lot 6 for 60 feet; thence run East parallel with the North lot line of said Lot 6 for 983 feet; thence run South parallel with the West line of said Lot 6 for 220 feet, more or less, to a line parallel with and 50 feet (measured at right angles) North of the South line of said Lot 6; thence run East parallel with said south line for 717 feet, more or less, to the waters of Gordon River Canal; thence run Northeasterly for 280 feet, more or less, along the waters of said Canal to the North line of the said Lot 6; thence run West along the said North line of Lot 6 for 1,697 feet, more or less, to the point of beginning. Subject to a reservation, herein reserved by this provision, for an easement to Collier County, its officers, employees, agents, and contractors, and the public for (1) construction of a road from the intersection of Fleischmann Blvd. and Goodlette -Frank Road northerly along the westerly property line of the Demised Premises, and a bus turnaround for use by the LESSEE within the LESSEE's primary existing parking lot; and (2) ingress and egress over the roadways of the LESSEE so that all individuals who reasonably then need such access will have the needed access to the Gordon River and adjoining lands and/or as otherwise from time -to -time needed. This reservation shall be treated for all purposes as if existing within the text of the Lease agreement. 22 Agenda Item No. 12B ' J October 27, 2009 Page 81 of 149 Exhibit 11-2 %f Shored Parking Area The South 311.25 feet of the West 1,40 feet -S hapies Lmprovement Company's Little Farms, as measured along the South line of said Lot 3, according to the Plat thereof recorded in Plat Book 2, Page 2, of the Public Records of Collier County, Florida. Agenda Item No. 12B October 27, 2009 Page 82 of 149 I November 15 -16, 2005 about this instead of -- CHAIRMAN COYLE: Yes, yes. Item #10E AN AGREEMENT FOR SALE AND PURCHASE WITH THE ND TRUST FOR PUBLIC LAND FOR THE PURCHASE OF ND HOUSING AND ADJOINING CARIBBEAN GARDE - THE NAPLES ZOO AT A COST NOT TO EXCEED $ 45 AN , 911 MOTION TO APPROVE PURCHASE OF OPTION #1; THE PURCHASE OF PARCELS #15 25 3, 10, AND 16 FOR $45 MILLION, WITH ACCEPTANCE OF THE PURCHASE AGREEMENT AND THE LEASE (WITH PL AND THE ZOO IN MODIFICATION /AMENDMENTS WITH DISCUSSION ON AGREEMENT) AND THEN HAVE FURTHER TO APPROVE PARCELS 11 AND 12 APPROVE D - OR THE AMOUNT OF $4 PURCHASE PARCELS #11 & #12 F 11,"T r tnu - APPROVED W /STIP ULATIONS MR. MUDD: Okay. Commissioner, the next item to be heard at 10:00 a.m. is a recommendation to approve an agreement for sale an d purchase with the Trust for Public Land for the purchase of land housing and adjoining Caribbean Gardens and the Naples Zoo at a cost not to exceed $45,667,911. And Ms. Marla Ramsey, your Administrator for Public Services Division, will present. MS. RAMSEY: Commissioners, I don't have a long want to highlight a couple of things that we presentation, but I did need to do today. On the visualizer, currently we have two options. Trust fdor Public Lands has offered us on -- the property with the z n surrounding the zoo, and in black I've outlined option number one, and Page 37 Agenda Item No, 12B October 27, 2009 Page 83 of 149 November 15-16,2005 in the orange color on the bottom is additional lands to make option number two. The other thing that we have on the agenda is to look at the lease agreement between the Naples Zoo, Inc., and Collier County, which would be assigned to Collier County with the purchase of the lands that we're discussing today. I have Trust for Public Lands here in the room, as well as some of the attorneys from our office who have worked on both the lease agreements and the purchase agreements. And rather than go through and rehash a lot of the things that you've already heard, I'd rather open it up for questions and see what kind of questions you have and bring the right person up to the dais for you. CHAIRMAN COYLE: Okay, Commissioner Henning? COMMISSIONER HENNING: I'm sorry. I wasn't here at last meeting so -- CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: So I'm going to rehash some of these things, if you don't mind. MS. RAMSEY: Sure. COMMISSIONER HENNING: There is a parcel that is not hatched out close to Golden Gate Parkway. Is that a piece that was sold to a developer? MS. RAMSEY: The area in the top, which he has got along Golden Gate Parkway, is being identified to be sold to someone else, as is 13, the little triangle off to the side. CHAIRMAN COYLE: Commissioner Henning is talking about the ones that are not crosshatched, below -- MR. MUDD: Commissioner, you're talking about -- CHAIRMAN COYLE: -- below eight and nine. MR. MUDD: You're looking at the piece that's below eight, next to nine in there? COMMISSIONER HENNING: Correct. Page 38 Agenda Item No. 126 October 27, 2009 Page 84 of 149 November 15-16,2005 MR. MUDD: That's privately owned, and that wasn't part of the Fleischmann property, I believe there's a separate owner for that, sir. COMMISSIONER HENNING: Okay. So, Marla, which piece was to be sold to a private developer MS. R.AMSEY. The private developers ers are the ones on the top ht nm right here, four, five, six, seven, eight, , and 13. What __ and that's one COMMISSIONER HENNING: Okay. purchase? MS. RAMSEY: That I do not know, sir.Do we know anything COMMISSIONER HENNING: O�n'Gate Parkway? about the purchaser on properties at Gold MS. RAMSEY: No, I don't. COMMISSIONER HENNING: Okay. could maybe share some MS. RAMSEY: Trust for Public Lands of that with you, if you'd like to know. Thank you. MR. GARRISON: Good m COMMISSIONER HENNING: rnin Commissioners. COMMISSIONER HENNING: Good morning. MR. GARRISON: John Garrison, Trust for Public Lands. of went through a bidding process and received bids from a number o developers, qualified developers both within the - from Naples ann his from elsewhere in Florida, and we selected a developer based hat he o credentials, his reputation, his track record, and his price offered. We selected a gentleman name Thomas Overton, a resident here in Naples, owns a company called Prestige Homes of Naples, �'hO e p nice job developing that property in a think is going to do a very, very bible with surrounding properties. way that's consistent with and compat And that's the name of the developer. HENNING: Okay. I have a few other questions about that. How big of a parcel; how many acreages. q MR. GARRISON: Seventeen point one seven acres. Page 39 Agenda Item No. 12B October 27, 2009 Page 85 of 149 November 15-16,2005 COMMISSIONER HENNING: Seventeen point one. And what was the -- what was the price for that? MR. GARRISON: Twenty -two million dollars. COMMISSIONER. HENNING: Twenty -two million. So that's approximately 700,000 per acre? MR. GARRISON: If you've got -- I haven't done that arithmetic. CHAIRMAN COYLE: That's more than 17. MR. GARRISON: Hold on a second. Yeah. Seventeen -- you're talking about northern parcels. That's 17 acres. COMMISSIONER HENNING: Right. Let's -- MR. GARRISON: It also includes -- COMMISSIONER HENNING: Let's stay with that one, the 17 acres. MR. GARRISON: Oh, well, there was -- there was not a separate price. They were -- he bid on this parcel and this parcel. MR. MUDD: And point right here. Did he bid on 13; is that what you're -- MR. GARRISON: He did, yes. COMMISSIONER HENNING: Did he get 13? MR. GARRISON: He did. COMMISSIONER HENNING: For $22 million? MR. GARRISON: No. He got -- COMMISSIONER HENNING: That's separately? MR. GARRISON: No, that's -- 22 million represents what his price is for -- we called track one, which is Golden Gate Parkway properties, and tract 13, which. is the -- adjacent to the Bear's Paw. MR. MUDD: Mr. Overton bid on four, seven, six, five, eight, nine, and 13? MR. GARRISON: That's correct. MR. MUDD: Some 28 acres, and his offering price was $22 million. MR. GARRISON: Correct. Page 40 Agenda Item No. 12B October 27, 2009 Page 86 of 149 November 15-16,2005 COMMISSIONER HENNING: Twenty -eight acres. MR. MUDD: Yes, sir. COMMISSIONER HENNING: Okay. MR. GARRISON: Yeah. If you include the 10.6 acres of X13. COMMISSIONER HENNING: Oh, okay. All right. That s easier to do the math on that one. What is the present zoning for the properties? MR. GARRISON: It's a combination. The -- a number of the parcel there on Golden Gate Parkway are in the mixed -use activity center designation. And Chuck Carrington can probably give you t he actual current zoning. MR. CARRINGTON: It's -- this mix, I believe, there's residential RF -6, and there's RF -6 with a cap of 3 on it, there's some agricultural zoned in there as well, and then parcel 13 is all agriculture. COMMISSIONER HENNING: Okay. Can you give me they percentages of the zoning, you know, residential, commercial, ag. . MR. CARRINGTON: I can give you a breakdown. COMMISSIONER HENNING: Thank you. CHAIRMAN COYLE: If I could help. Can't we show that breakdown that we have of the zoning and acreages of each of then parcels so it's very clear to all the commissioners? We have it broken down on a graphic, right? MR. MUDD: Yes, sir, we do. MS. RAMSEY: Yeah, we do. We have it. CHAIRMAN COYLE: Can we show that? MS. RAMSEY: Uh -huh. MR. CARRINGTON: It's not broken down in percentage. It's broken down as acreage. COMMISSIONER HENNING: Acreage, that's fine. Okay, all right. I'll -- let me study this while the others are asking questions. Page 41 Agenda Item No, 12B October 27, 2009 Page 87 of 149 November 15-16,2005 CHAIRMAN COYLE: Okay. We'll come back to you then. Commissioner Fiala? COMMISSIONER FIALA: Yes. I was wondering if the county ever wanted to buy one of those parcels along Golden Gate y, would we be able to do that, or have you already committed, period, to selling it to this developer? MR. GARRISON: We have already committed to selling t to this developer. At the instructions of staff, who identified those parcels as being excess to the county's requirement to preserve the zoo and the environmentally sensitive lands surrounding it, in order voted bring the price down to something close to what your taxpayers voted for last November. COMMISSIONER FIALA: Okay. And Commissioner Coyle, I wanted to talk about the lease, but I think I'm not going to go off this subject right now. I'll go to the lease later I will tell you I also have CHAIRMAN COYLE: Okay. great concerns about the lease. We need to have some time to discuss that, and I'll join you when we do that. COMMISSIONER FIALA: Okay. CHAIRMAN COYLE: Commissioner Halasto the gentleman COMMISSIONER HALAS: My question is g there standing at the podium, how many bids did you receive on this whole conglomerate of property? MR. GARRISON: I believe we received eight. COMMISSIONER HALAS: Eight bids? MR. GARRISON: Eight bids. COMMISSIONER HALAS: And was there some bids that you just threw out? MR. GARRISON: There were some bids that were nonresponsive because they bid on properties in excess ones that we offered for sale. They actually wanted the parcel that T adjacent to -- between the Southwest Florida Conservancy and Page 42 Agenda Item No. 12B October 27, 2009 Page 88 of 149 November 15 -16, 2005 erties that the county wishes to Goodlette Road and also wanted pro. we considered those bids to be retain just to the north of the zoo since they didn't adhere to the request for bids basically nonresponsive for sale, please bid on this that we sent out saying this is the property property. concern, If You pu I have a co CO�SSIONER HALAS: Now, number 13 is -- that chart back up, and if we look at where property o developer wanted to buy There we go. Now, you got this d op property? b 13. How's he going to access that property le of possibilities, number GARRISON: Well, there would be the most feasible one which would be, and the most desirable and t with the Bear's Paw would be if he were able to work an arrange here. Country Club, which, of course, is this property point r to the overhead. MR. MUDD: John, could you pleas MR. GARRISON: Oh, PM sorry. �-- MR. MUDD: People can't hear you. CHAIRMAN COYLE: Keep you on the Mike. MR. GARRISON: Okay, yeah. MR. MUDD: If you could point to that map. MR. GARRISON: Okay, thanks, Jim. Club. The best access would be through Bear's Paw County roaches here right up to this There's actually a service road that app corner of the property. ER HALAS: So what happens if Bear's Paw COMMIS property. 9 says, you can't have access through h ould be possibility of an MR. GARRISON: Well, then t northlsouth to access easement off of Golden Gate Parkway Atha the developer the northern Point And this would be somet ing wns the property, and that would be would have to apply for after he o your decision. HALAS: So in other words, he's going -- he's COMMISSIONER of easement -- going to have to come up with some type Page 43 Agenda Item No. 12B October 27, 2009 Page 89 of 149 November 15-16,2005 MR. GARRISON: Yeah. COMMISSIONER HALAS: -- and this is basically wetlands in here. MR. GARRISON: Ccrrect. He would have to come up with an easement. And I've had preliminary discussions with county staff they would -- they would entertain, you know, a request to grant a n that easement, sell an easement there. going to be COMMISSIONER HALAS: That's an idea, g g interesting. CHAIRMAN COYLE: Okay. Are you finished? I'm sorry. COMMISSIONER HALAS: Yes, sir. CHAIRMAN COYLE: Okay. I have a question. Have you received the nonrefundable deposit from -- MR. GARRISON: Yes, we have. CHAIRMAN COYLE: And you got that by Friday then? MR. GARRISON: Correct. CHAIRMAN COYLE: And that nonrefundable deposit has bee applied even though the developer doesn't know how he gets to parcel 13? MR. GARRISON: That's correct. CHAIRMAN COYLE: Nor does he know what density he's going to get for the parcel along Goodlette Road that he purchased? MR. GARRISON: That's correct, Commissioner. CHAIRMAN COYLE: Okay. All right, thank you. Gutsy developer. Okay. Any other questions by commissioners? Commissioners Henning? COMMISSIONER HENNING : You know, this whole issue about the parcel next to the Conservancy and the parcel that you have a deposit on for purchase, there's a discrepancy in my figures of what is the Conservancy offering versus the other buyer. And the bottom line is, whatever is peeled off -- and hopefully we can keep it whole as Page 44 Agenda Item No. 12B October 27, 2009 Page 90 of 149 November 15-16,2005 much as possible -- whatever's peeled off is what the taxpayers pay. MR. GARRISON: I understand. COMMISSIONER HENNING: and this private developer, the bottom line is, the taxpayers whatever is -- agreement is worked out through - with the Conservancy a ers are going to pickup the rest of it. You know, knowing a little bit about pricing in Collier County for commercial and retail/cornmercial, you're not going to find anything less than $1.5 million an acre, and here we are off ring something -- a parcel for $4 million for, what is it, seven acre MR. GARRISON: Yes. COMMISSIONER HENNING: So in reality, if that's the offer that -- if the board doesn't buy it, in reality, were saying to the taxpayers, we're going to allow a donation to the Conservancy to purchase this property. MR.. GARRISON: Well, actually, we took -- you recalls sal whole period of time when we went through the multiple nd a process to try to negotiate with the Fleischmann famlly that came in company called Realty Urban Solutions did appraiser appraisal - we had a very in the low 60 million range? We asked that sal over the four -- tight timeline to go back and allocate that appraisal the county is going to basically four tracts of land, the mayor tract acquire, the tract 13, the tracts along Golden Gate Boulevard, and d the tract that we're speaking about now between the Conservancy 4 0 OOn Goodlette Road. And he came back wrtha number arch and comparable Now, that information was based upon sales several months old. There was not time in the period of time in rder to meet our commitments to the Fleischmann family of bringing a package to you today so that you could -- you could vote on it, to go out and do all new appraisals. That takes weeks, if not mot hsustice COMMISSIONER HENNING: Well, in order to d do it justice to the taxpayers, I think that we should take the time Page 45 Agenda Item No. 12B October 27, 2009 Page 91 of 149 November 15-16,2005 That's my feeling, so CHAIRMAN COYLE: Commissioner Halas? COMMISSIONER HALAS: I have another concern with buying all of this property. And maybe Marla can enlighten me. Do we have a five -year business plan on this, what it's going to cost the taxpayers to run this whole area of land that we're going -- we're thinking seriously about purchasing? MS. RAMSEY: Well, Commissioner, we haven't done actually a five -year business plan because we haven't known exactly what we are going to purchase. But in the -- if you recall the number of scenarios that we used, most of this parcel that the county is going to use that doesn't have the zoo sitting on it is going to be passive in nature, which is normally a rest room facility here with a parking area, pathways or boardwalks across wetland areas with shelters. That's the game plan. That's been the game plan from the very beginning. Very passive, some open spaces so kids can play, but nothing -- nothing like athletic fields or things that are quite costly. COMMISSIONER HALAS: But still, there's going to be cost involved in this. When we take over this property, if we decide to make that decision today, who takes care of all of the hurricane damage on that property? Does that become our responsibility? MS. RAMSEY: Well, I would assume that, to begin with, we have to remove all the exotics that are currently on that. location. A number of exotics do exist there, so yes. COMMISSIONER HALAS: And have you gotten any idea what the price is going to cost to do that? MS. RAMSEY: Not at this moment, sir, no, I do not have that. COMMISSIONER HALAS: Well, we've had almost two years. And if we looked at the property, I'm surprised that we had some idea of what we were looking at for property and why we haven't looked at a business plan or how we're going to address this. Kind of bothers Page 46 Agenda Item No. 12B October 27, 2009 Page 92 of 149 November 15-16,2005 me. I can't believe, you know, we've got -- you know, we don't have a bottomless pit of money. So it's going to cost the taxpayers money here. So I'm surprised we didn't come up with something like this. MS. RAMSEY: It will be included in our five -year plan once we've purchased, and it will be phased, as we do with every park facility that we have, and bring it on in that -- in that regard, as, I guess, impact fee monies become available, or Florida Community Trust dollars come forward, if we're able to utilize some of those. COMMISSIONER HALAS: But you don't have any idea what the operation and maintenance plan will be for this piece of property at this point in time? MS. RAMSEY: No, sir, do not have that plan available. COMMISSIONER HALAS: So we're going to be basically flying in the dark? We're going to buy something, but we really don't know what it's going to cost us, what the whole bottom line is? MS. RAMSEY: Well, Commissioner, we always look at lands and look to purchase the lands based upon our growth management plan and the need to have the acreage. COMMISSIONER HALAS: Okay. MS. RAMSEY: And then we try and place them in locations that will service the population the best, and then off of those we put together a committee of people, usually parks and recreation advisory board, involved in helping us to determine what the entire system is going to look like, and we have done a number of scenarios, but we have not gotten down into the nitty- gritty. Because as you know, prices have gone up at least 30 percent over this past year. And any number that we did a few months ago would be outdated even as we speak. So if you would like us to bring back some scenario, I definitely can do that for you. COMMISSIONER HALAS: I think that would be beneficial. I think all of us need to know what we're -- you know, what the Page 47 Agenda Item No. 12B October 27, 2009 Page 93 of 149 November 15-16,2005 operational cost is going to be on this. CHAIRMAN COYLE: If I could help. The operational costs do have to be determined, certainly, but they are dependent upon what plan we approve for the utilization of this property. MS. RAMSEY: That's correct. CHAIRMAN COYLE: If we were to leave much of this property undeveloped and unusable, then there wouldn't be much of an increased cost associated with it. If we turn it into a central passive park, as we have discussed in the past, there would be operational costs associated with it. So it really depends upon a future decision the board will make concerning the utilization of the property. But right now, there are only three decisions I think we have to make today. One is, are we going to buy this property; number two, are we going to permit the Conservancy to buy parcels 11 and 12; and number three, are we going to accept the lease as it is currently written. MS. RAMSEY: Correct. CHAIRMAN COYLE: Those are the only three items that we should make a decision on today, that we have to make a decision on today. And quite frankly, I don't know how we do that today. But nevertheless, Commissioner Fiala has some comments. COMMISSIONER FIALA: Yes. My first comment is, I was going to ask Mr. Garrison from TPL, the property that we sold to the developer, or that you sold, I'm sorry. We didn't have any part of that, that you sold. MR. GARRISON: Right. We're a private, independent, nonprofit organization. COMMISSIONER FIALA: How much did you charge him per acre? I mean, if you figure it all out, how much was it per acre? Because they had commercial, residential, ag. in there, you know, MR. GARRISON: If you divided -- what was the total -- COMMISSIONER HENNING: It's about 700,000 an acre. Page 48 Agenda Item No. 12B October 27, 2009 Page 94 of 149 November 15 -16, 2005 CHAIRMAN COYLE: Eight hundred. MR. CARRINGTON: Seven hundred thousand dollars an nacre. COMMISSIONER FIALA: Seven hundred thousand dollars an acre. Okay, fine. Commissioner Coyle, can I make a motion, or do we need to listen to our speakers first, if there are any on this? On one portio n of this. CHAIRMAN COYLE: It depends on what motion you make. we COMMISSIONER FIALA: I'd like to make a motion that a prove option one, which is buying parcels one, two, three, 1 and p 16, for $41.5 million. CHAIRMAN COYLE: Okay. Everyone understands where three and 16 are located? They're obliterated by the mark on this rticular slide. I'm sorry, 16 is shown, but three is not. Its right at the top. Okay. There we go. O p three, ld and 16; 16 is the o and U.S. 41. median at Fleischmann Boulevard So there's a motion on the table for the purchase of those parcels. Now, let me hasten to, well, ask -- this does not mean that a e motion cannot be made later for the purchase of 11 and 12; is that true? cussed I COMMISSIONER FIALA: Yes. That's going to be guess, on the next one. CHAIRMAN CO YLE: Yes, okay. So you're suggesting that we o ahead and make the decision to purchase on e two three, 14, and g 16? COMMISSIONER FIALA: Right. �e will discuss 11 and 12 later. CHAIRMAN COYLE: And then I think that's an easy appropriate way to deal with this. COMMISSIONER FIALA: Because we know this sreserved, done -deal. I mean, we want to make sure that that zoo n This is the and as much environmentally sensitive land as way to do it. And so my motion stands. CHAIRMAN COYLE: And I will second the motion. Page 49 Agenda Item No. 12B October 27, 2009 Page 95 of 149 November 15-16,2005 Commissioner Coletta, you had a question. going to redirect the COMMISSIONER COLET'TA: Well, ha gthingk it's a bad question towards the motion, if I may. Not motion. I think it's a hood mntinXt, My problem is is that we had a mandate for the voters of $40 million, and now we're exceeding it by 1.5. I'd like to see if there's an option to be able to recover the 1.5. if somehow -- somehow or redirect it in a different direction. I mean, we -- CHAIRMAN COYLE: If I could, I can answer that question for you, I think. COMMISSIONER COLETT : s, didn't have a mandate CHAIRMAN COYLE: Numb o we We asked the from the voters to pay $40 million for the property. voters if they would tax themselves an additional $40 million so that we could buy it. That did not prohibit us from adding other - other sources of funds to the purchase. Quite frankly, it is my belief, and I believe the staff will back me up on this, that the price will be far below the $40 million ultimately 1 because we will -- once we own the property, we can apply for and P robably receive state and federal grants perhaps to the tune of $20 million or so. Is that a fair estimate? ere is a p ossibility of having MR. MUDD: Commissioner, t believe our folks contribute to the purchase of this property, and I Y $20 million figure is a good approximation if they come through with their grants. CHAIRMAN COYLE: Now, you're saying folks contribute. I'm talking about state and federal grants. I'm not talking about members m b of the audience coming up and giving us a hundred bucks apiece, right? MR. MUDD: Commissioner, the best you're going to get on a ant from the Florida -- from the Florida side of the house is around Page 50 Agenda Item No. 12B October 27, 2009 Page 96 of 149 November 15 -16, 2005 $9 million. CHAIRMAN COYLE: Okay. And then we've got a possibility of getting a grant from Big Cypress R. Basin ? sir. I think they're M. MUDD: I wouldn't call that a gr ant , going to ask you to put some stormwater things into this particular piece of property, specifically in parcel number two, in order to get that $5 million that I have talked to the director about. CHAIRMAN COYLE: So under the worst -case scenario -- MR. MUDD: Sir, you also have Conservation Collier -- CHAIRMAN COYLE: Yes. MR. MUDD: -- which is a fund, and they're very interested in parcel two. And they do have monies, but they -- it takes them - you have to own the property first before they can do r ord ordinance, And so that's been holding them up based on the -- that once we own CHAIRMAN COYLE: So the bottom line eis r sources of funding, the property and we can apply for grants and o the price will be well below the $40 million that the voters agreed to tax themselves. So I don't see a conflict there in our concerns, right. COMMISSIONER COLETTA: Mr. Mudd, can you nod your head up and down that that's correct, that statement? MR. MUDD: Commissioner, if that materializes, that's, indeed, going to be the case. I believe the decision on Conservation Collier rests with this board. COMMISSIONER. COLETTA: Well, I mean, Conservation Collier is not a dollar source that I see as a tremendous alive �notage here, because that's money that's already going to go in t hem put one way or the other, and I'm really kind of reluctant hteo seems we all their eggs in one basket. I am interested in the this $9m million from were talking about. And if we could possible 1 or something fictional? the state and federal, these grants, are they Are they really something for sure we can get or something that's questionable? Page 51 Agenda Item No. 12B October 27, 2009 Page 97 of 149 November 15-16,2005 MR. MUDD: Sir, you can't -- you've got to apply, and they go through a selection process. So there's nothing sure about any of that, okay. You have to apply. And depending on how the applications are from other parcels in the state and how well you stack up against those particular applications decides if you're going to get money. But let's give you a for - instance. That 19.2 acres that you bought above Golden Gate Parkway which we used to call the Fleischmann property, okay -- I guess this is Fleischmann two. But the other side of the property that you purchased, we are getting a Florida Communities Trust Grant for that in the tune of around $8 million, okay. That has been approved, and the final -- exactly the dollars and cents outside of that 8 million, give or take a couple of dollars, they're deciding that right now. But we have been told we were approved for that particular grant. So there are monies coming forward for that particular purchase that you made. So there is a possibility that this will happen. We will not know that until around September of 2006. COMMISSIONER COLETTA: And I have no problem with that. I think that's a wonderful avenue to go. I kind of hope we can hold off on using Conservation 2000 dollars for this purchase till we find out where we are. I'd like to see that money buy additional lands rather than just go into this and that's the end -all of the fund. CHAIRMAN COYLE: Okay. Commissioner Henning? COMMISSIONER HENNING: How our agenda is laid out, the recommendations by our staff is, the board would make a selection of option one or option two. The motion on the floor is for option one. I understand that you're stating that we can decide on parcel 12 and 11, which the Conservancy's offering, at a later time. But I'm not going to support the motion because of just the way it's laid out. And I think perception -- I'm really concerned about what I stated is, having the taxpayers donate to a not - for - profit organization, because we really don't have the price on it. I think that we should Page 52 Agenda Item No. 12B October 27, 2009 Page 98 of 149 November 15-16,2005 purchase the properties, all the properties, and get a -- an estimate on what the 12 and 13 are really worth. COMMISSIONER FIALA: Then it's going to cost the taxpayers more. COMMISSIONER HENNING: Well, you know, sometimes you have to spend a little to get a lot. And -- AUDIENCE: Boo. CHAIRMAN COYLE: Ladies and gentlemen, please, please. COMMISSIONER HENNING: You know, the appraisal was done after the offer was made by the Conservancy, and I know that. So let's be fair to the taxpayers. And that's what I'm going to be doing. AUDIENCE: We are the taxpayers. CHAIRMAN COYLE: Ladies and gentlemen, you'll have your chance to speak. Please, no speaking from the audience. I think the purpose of the motion, Commissioner Henning, was to permit us to focus specifically on that. There's no question, I don't think, in any member -- in the minds of any member of this board that the taxpayers did not tell us they wanted us to preserve this property, and one, two, three, 10 and 16 is the first step in doing that. We can, and certainly will, immediately after that vote, go to 11 and 12, if you wish, and then we can have that debate as to what we do with it. But at least if we could -- if we could indicate our willingness to purchase and preserve those parcels just mentioned, it would be helpful to move this debate along. Commissioner Coletta? COMMISSIONER COLETTA: I heard Commissioner Henning, and I'm probably going to get the displeasure of the audience over this, but for the most part I agree with him. I just, I want to explore one more time where we're going with this. So what you're saying is that we're looking -- this approval does not eliminate the possibilities of 11 and 12 coming up as the next part of business to be able to be dealt with? Page 53 Agenda Item No. 12B October 27, 2009 Page 99 of 149 November 15-16,2005 CHAIRNJ[AN COYLE: It does not. COMMISSIONER COLETTA: And -- but then again, too, Commissioner Henning wants to tie this together in one package to be able to expedite the whole thing so that we don't have the ability to negotiate as we go down the line. I believe that's what you're doing, Commissioner Henning. Could you help me with this? COMMISSIONER HENNING: Actually, I think it's expediting the whole process. Either you're in favor of doing just option one or option two. We're going to have a third vote, option one, option two, the lease, the lease -- the lease on the property for the zoo, so -- CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: -- I just don't agree with the motion. CHAIRMAN COYLE: We have a motion on the table by Commissioner Fiala, seconded by me. I'm going to call the question and see if it fails, and then we'll proceed. There's no point in debating it any further. MS. CHA.DWELL: Excuses me, Chairman. CHAIRMAN COYLE: Yes. MS. CHADWELL: I'm sorry. I heard you say earlier that -- I'm sorry. Ellen Chadwell, Assistant County Attorney for the record. I heard you say earlier that you had some issues with the terms of the lease that you wanted to discuss. And before you voted on the matter, I'd like to suggest that, since your vote to approve the purchase of those properties -- if you're either going to limit it to -- just to the purchase of those properties or if you're approving the agreement, then we might want to take up the issue with the lease first, because by approving the agreement, you're, in essence, agreeing that you will accept an assignment of a lease as attached, so -- CHAIRMAN COYLE: The motion was specifically for an agreement -- for the purchase of those parcels mentioned. It -- Page 54 Agenda Item No. 12B October 27, 2009 Page 100 of 149 November 15-16,2005 COMMISSIONER FIALA: I can add to the motion to say that we would discuss the lease in another motion. Would that help you legally? MS. CHADWELL: ,You're agreeing you want -- you're moving you want to purchase those five parcels, but if you're not approving this -- if you're approving this purchase agreement, in my opinion, you're accepting the terms or agreeing that you will accept an assignment of the lease as drafted and attached to the document. So I think you should take up the issues with the lease in advance of voting on the purchase. CHAIRMAN COYLE: Well, why is there not the possibility to approve the purchase without assuming the obligations of the lease, assume -- with the expectation that additional discussions would occur to resolve the differences in the lease? This is the first time this lease has come before the board. There has not been a public hearing on the lease. There really has not been sufficient discussion concerning it, and I am concerned about the lease itself, many of the provisions of the lease. And I really do not believe that we have time today to sort those issues out, because the information does not exist. I have asked for a financial pro forma for the zoo, and what I was given was a list of the revenue the county would get. That's not a pro forma. We have to have some kind of a financial report that indicates what the zoo's income is likely to be in the future, taking into consideration impacts like hurricanes and other things, resolving some of the issues that were raised by a couple members of the board about -- about clearing exotics and/or recovering from hurricane damage, whose responsibility is that. There are a lot of discussions we have to have concerning that. And I am not certain that we can spend the time today to do that. So can we separate the lease decision from the purchase decision with the understanding that we would continue to work with the zoo Page 55 Agenda Item No. 12B October 27, 2009 Page 101 of 149 November 15-16,2005 and the TPL in refining the lease? MS. CHA.DWELL: I don't believe so, and the reason for that is the statute requires that if you're going to lease public property, you have to solicit -- you have to competitively solicit bids for the leasing of the property. You can purchase property subject to a lease as well as subject to any other incumbrance that may exist. So the arrangement is that TPL would enter into the lease with the zoo, and the county would purchase the property subject to that lease. If you approve the purchase without coming to some satisfaction with the terms of the lease and you want to take it up as a separate matter, you've bought the property without -- with it not being subject to the lease. You've not agreed to that. So then you're, in my opinion -- perhaps there's a difference of legal opinion on this matter, I don't know -- but -- and if you buy it not subject to the lease, then you're subject to the statute that says you're going to have to competitively solicit that. Now, whether there be other zoo keepers out there who want to throw their name in the hat and make an offer on a leasing arrangement with the county on this, I don't know. I doubt it. CHAIRMAN COYLE: There is nothing wrong with us amending the lease after we sign the purchase agreement. MS. CHADWELL: No, you can do that. CHAIRMAN COYLE: Okay. Then Commissioner Fiala, you want to modify your amendment to include the acceptance of the purchase agreement and the lease. COMMISSIONER FIALA: Yes, and some words to -- in effect, to say that we still have the ability to modify the lease. MR. WEIGEL: Okay. I'll jump in here. I think that we recognize that the board is making its statement and we have parties here, representative of all interested parties that are already parties to the lease that are recognizing this, to the extent that they wish to go on Page 56 Agenda Item No. 12B October 27, 2009 Page 102 of 149 November 15-16,2005 record. Ms. Chadwell is correct, the lease can be modified. The reason, as she explained, that the lease is in place right now, is that it helps meet the statutory requirements of a less -- of not having the board having to go out for a solicitation of lessees if we take the land subject to a lease, which it is currently subject to a lease, entered into prior to our purchase. We would be receiving an assignment of this lease from the lessor, which is the current landowner, which is TPL, if that's not already clear for the public. And so yes, as a lessor and as taking assignment of the lease, we have the ability to amend the lease. One last question I would raise for your information, is for Ms. Chadwell, representative of the TPL, who is the current leaseholder, that is there any bar in the current lease that exists between TPL and the Tetzlaff organization, Naples Zoo, Inc., that prevents this Board of County Commissioners in assuming the lease to have -- is there anything that prevents them from the ability to modify or amend that lease? MR. CARRINGTON: If I may add something. Yeah, Chuck Carrington, real estate services manager. If I recall from the lease is, that the board really only has a right to come back at the end of every five -year period and negotiate at that time or look at the terms of the lease, the rent payments. But any time in between, I believe -- and Ellen might have to correct me here -- but I believe unless there's a default, then I really don't believe you would really have an opportunity to come in and just to -- unless the zoo would be willing to negotiate some kind of amended deal. CHAIRMAN COYLE: And the TPL? MR. CARRINGTON: 'Well, TPL would be out of it then once we were the owner. CHAIRMAN COYLE: Commissioner Halas has been waiting. MR. CARRINGTON: Please correct me if I'm wrong. Page 57 Agenda Item No. 12B October 27, 2009 Page 103 of 149 November 15 -16, 2005 MS. CHADWELL: I would like to say that I think that the agreement to purchase these parcels can be done with the qualification that you will accept -- as Commissioner Fiala has suggested, with the qualification that you will accept an assignment of the lease subject to some minor modifications between the TPL and the zoo. That means that they will still have to agree to those modifications, but -- CHAIRMAN COYLE: They who? MS. CHADWELL: -- at least your approval is conditioned on that. CHAIRMAN COYLE: That they who will have to agree, TPL? MS. CHADWELL: TPL and the zoo will have to agree on that. CHAIRMAN COYLE: Okay. All right. Commissioner Halas, you've been waiting to speak. COMMISSIONER HALAS: I think they answered my question. CHAIRMAN COYLE: Okay. Then you're modifying your motion? COMMISSIONER FIALA: Modifying my motion to include that I would like to discuss that lease. I don't know how minor the discussion that I want to have is. I've gotten some differing information on lease amounts, and I want to discuss that. So I don't know how minor that is. Yearly payments. MS. CHADWELL: Well, I think -- I think that's a material term of the lease -- COMMISSIONER FIALA: Okay, fine. MS. CHADWELL: -- so I don't consider that minor at all. COMMISSIONER FIALA: After we -- oh, it isn't minor at all. So that -- MS. CHADWELL: I wouldn't -- COMMISSIONER FIALA: -- means that if we vote yes on this, then we also vote yes on the lease? Now, I'll tell you right out, in our -- here it says, someplace or another, how much we're going to charge them, and I think it's something like what, $235,000? Page 58 Agenda Item No. 12B October 27, 2009 Page 104 of 149 November 15-16,2005 MS. RAMSEY: Two hundred thirty-five thousand, five hundred dollars per year as a base rent. COMMISSIONER FIALA: Yes, as base rent, that's without the tax. And so it comes up to be 250,000? MS. RAMSEY: Well, no, ma'am. Once the county owns it, there .isn't a tax on it. COMMISSIONER FIALA: Okay. Now, I talked with the people from the zoo and asked them -- because I was told yesterday that they've been paying $250,000 a year to the Fleischmann family, and I've told -- and I was told they were paying that every year. So I asked them, I didn't know that. I -- you know, all I could do was believe what I heard, and they said last year was the highest year they've ever had, and they still didn't pay 250,000, and they've never paid that amount to the Fleischmann family before. This was the highest they've ever paid. Not only that, but this year they're going to be closed while they're making all of the repairs because of the hurricane and so forth. They'll never even get close to that amount. Plus -- that they paid last year. And so I feel that we're going in handicapping them, and I think that that ought to be adjusted properly. MS. RAMSEY: Well, there are adjustment opportunities in the lease itself. And if you do have a hurricane such as we've just had recently, their base rent is prorated based upon the fact that they haven't had the income -- if they've been closed for two months, then it's prorated. So the base rent does have some ability in there to -- COMMISSIONER FIALA: So every month it's prorated, depending on what they make that month or something? MS. RAMSEY: No. COMMISSIONER FIALA: No, I didn't think so. MS. RAMSEY: No. COMMISSIONER FIALA: Okay. Page 59 Agenda Item No. 12B October 27, 2009 Page 105 of 149 November 15 -16, 2005 MS. RAMSEY: There is a base rent of 235,000 divided into 12 equal payments. if for some reason there is an act of God that closes the zoo, then there is an opportunity for hardship and that base rent -- COMMISSIONER FIALA: So -- but we're basing that rent on one year, the last year, the highest rent they've ever paid because we had great tourism. We don't know what our tourism year is going to be like this year after all of the news of the hurricane. We don't know if we're going to get people back or whatnot. So why are we basing it on the highest year we ever made? And this is my point. MS. RAMSEY: Well, let me also add in here though that the base rent that we're looking at does not include any taxes, and the base rent they were paying to the Fleischmann family, they were paying taxes on top of that base rent. So we have taken what their last year's -- and that's the dollar amount we have, which is $3,400,000, and we've determined what that base rent is based upon, that element, which is -- actually is cheaper than the 250 that they have been paying currently. COMMISSIONER FIALA: What do you mean have been paying? I want you to clarify that, please. MS. RAMSEY: They've been paying 250 per year, plus taxes. COMMISSIONER FIALA: For how many years? MS. RAMSEY: I'd have to ask -- how many years? Thank you. Plus the taxes, right? Okay. They've been paying anywhere from 220 some thousand dollars plus taxes, and then of course, they have their sales tax on top of that, which is a separate entity of it. So if you take the taxes -- COMMISSIONER FIALA: Now, you said 250 every year. What -- what is every year? MS. RAMSEY: Annually, every year annually. COMMISSIONER FIALA: Yes. But I mean -- MS. RAMSEY: That's the average. COMMISSIONER FIALA: How many years is every year? Page 60 Agenda Item No. 12B October 27, 2009 Page 106 of 149 November I5 -16, 2005 MS. RAMSEY: They have from 2000 to 2004 on this list, which has been averaging about $250,000 with the taxes, right? CHAIRMAN COYLE: Okay. This is the reason that I wanted to Separate this discussion. COMMISSIONER FIALA: Yes, right. CHAIRMAN COYLE: If you want this thing to breeze through this board, you should have presented this thing to us at a workshop so that we understood what was going on here. There is no comparison of the total cost paid by the zoo in the past and what we're expecting them to pay in the future. Let us face it, the operation of this zoo is something that is beneficial to the community. We should not be using it as a cash cow so that we can extract as much money as we can from it. Now, my feeling is, if you wanted this thing approved and you wanted to make it easy, you should have been working with the commissioners to get it done, and that didn't happen. So I will be happy to continue seconding this motion, and I will call the motion because I want to see if it's going to fail or not. There's no point in continuing this discussion if there's not enough support on this board to continue with it. But I would ask that you -- COMMISSIONER FIALA: But the motion does include that we are able to discuss this rent afterwards. CHAIRMAN COYLE: Or anything else -- COMMISSIONER FIALA: Anything else, yes. CHAIRMAN COYLE: -- as far as I'm concerned about this lease agreement. COMMISSIONER FIALA: Not in five years? Now. CHAIRMAN COYLE: Immediately, whenever we acquire it. We should be able to sit down with the Tetzlaffs and negotiate an agreement that is in the best interest of this entire community. And if that is your motion, I'll still second it. Page 61 Agenda Item No. 12B October 27, 2009 Page 107 of 149 November 15-16,2005 COMMISSIONER FIALA: Yes, that's my motion. CHAIRMAN COYLE: Okay. But I'm going to call the question. All in favor, please signify by saying aye. ;COMMISSIONER HALAS: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN COYLE: And opposed, by like sign? COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Okay. It is approved 3 -2, with Commissioners Coletta and Henning dissenting, and we're going to take a break, 10 minutes. (Applause.) CHAIRMAN COYLE: We'll be back. (A brief recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your seats. Mr. Chairman, you have a hot mike. CHAIRMAN COYLE: Okay. Looks like we have three commissioners, so we have a quorum. Ladies and gentlemen, please take your seats. The Board of County Commission meeting is back in order. Where's our county attorney? MR. OCHS: He's on his way in, sir. CHAIRMAN COYLE: Okay. David, there's -- before we go into the next item, there is one question I need to ask you. I think you've already given me the answer, but I want to make sure that we are on firm legal footing with respect to the action we took on the lease. MR, WEIGEL: You're on firm legal footing. CHAIRMAN COYLE: Good. MR. WEIGEL: Would you like any further -- Page 62 Agenda Item No, 12B October 27, 2009 Page 108 of 149 November 15 -16, 2005 CHAIRMAN COYLE: No, that's it. MR. WEIGEL: Okay. CHAIRMAN COYLE: That's it. I like those short, sweet answers. Okay. David, did you have something you wanted to tell us? MR. TETZLAFF: Yes, sir. Good morning, Mr. Chainnan, Commissioners. I don't think this is the time or place to dissect the lease. CHAIRMAN COYLE: That's right, it's not. MR. TETZLAFF: Honestly, I do not. And as far as Naples Zoo is -- the lease can be as it stands. I want to move the process along. It's been 19 months. Let's go on with this. Thank you. CHAIRMAN COYLE: Okay. Thank you very much. (Applause.) CHAIRMAN COYLE: That solves lots of problems. Okay. Now I had promised the dissenting commissioners that they would have a fair and open hearing on parcels 11 and 12, and that's what we're going to have right now. So we're going to discuss whether or not the county commission will also authorize the purchase of parcels 11 and 12 or whether they will permit those to be sold to the Conservancy as has been proposed. And Commissioner Henning? COMMISSIONER HENNING: I'm going to make a motion that the Board of Commissioners purchase these two parcels for the remaining dollars in option B, and also give direction, as part of my motion, give direction to staff to get a -- an appraisal on these two parcels and present that to the Conservancy for their consideration of purchasing. CHAIRMAN COYLE: Okay. There's a motion to approve the county's purchase of these properties with the proviso that the county seek. a -- an appraisal of the property. Is there a second? (No response.) Page 63 Agenda Item No. 12B October 27, 2009 Page 109 of 149 November 15-16,2005 CHAIRMAN COYLE: The motion dies fora lack of second. Is there any other discussion? COMMISSIONER COLETTA: I'd like to hear the speakers, first. CHAIRMAN COYLE: Okay. Commissioner Henning? COMMISSIONER HENNING: I have a question for my colleagues. CHAIRMAN COYLE: Okay. Commissioner Henning, go ahead. COMMISSIONER HENNING: I have a question for my colleagues. CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: Obviously that -- the private developer is purchasing less valuable property for more money. Don't you think that we owe it to the taxpayers to make sure that we get a fair deal on all the parcels? And what I'm referring to is parcel 12, and parcel 11. CHAIRMAN COYLE: Commissioner Fiala? COMMISSIONER FIALA: Yeah. In my opinion -- you asked all the commissioners, so I'll give my opinion -- this was, as far as the Conservancy went, a fair price because they had gone to and gotten an appraisal. You know how many appraisals we got for this land and how they differed. And the longer we waited, the higher the appraisal went. But not only that, you asked, is it fair to the voters, absolutely, because the voters voted to buy all of this land to preserve for a park. That's what they wanted, and that's what I say they should have. (Applause.) COMMISSIONER HENNING: And I'm not arguing that point. And we heard from the gentleman from Public Lands of Trust (sic), they did a fast appraisal. Now, do you want to make a decision on something that was Page 64 Agenda Item No. 126 October 27, 2009 Page 110 of 149 November 15-16,2005 done, you know, with a fast appraisal instead of in -depth study to find out what the true value of this property is? COMMISSIONER FIALA: Well, Commissioner, according to what I see written here, the county was only going to pay 45 million for the property, 45.5, which is 4 million. It's the same price that the Conservancy was offering in option B. So, you know, it's the same price. COMMISSIONER HENNING: You know, even the appraisal that the Conservancy had is more than what they're offering. COMMISSIONER FIALA: Well, I'm willing to go with that, because I think that's what the voters wanted, yes. COMMISSIONER HENNING: You think the voters wanted to give their tax dollars to a not - for - profit organization? CHAIRMAN COYLE: Ladies and gentlemen, please. COMMISSIONER FIALA: If that will keep this land. You know, what did they do in Boston when they put the Boston Common in there? You know, maybe people didn't like it at the time, but forever after, people are going to be able to enjoy that, and they would never be able to do that again. It would be full of high -rises if they didn't take that bold step forward. COMMISSIONER HENNING: Well, we don't -- I'm not saying (Applause.) COMMISSIONER HENNING: Part of my motion was not to put high -rises there. COMMISSIONER FIALA: Right, I understand that. COMMISSIONER HENNING: My motion was to get a fair dollar for this piece of parcel. COMMISSIONER FIALA: I think it's fair. COMMISSIONER HENNING- And, you know, wherever the board goes with this, I'm not going to let this go, because I think it's our duty to be stewards of the taxpayers' dollars. Page 65 Agenda Item No. 12B October 27, 2009 Page 111 of 149 November 15 -16, 2005 COMMISSIONER FIALA: And to be fair, you always have felt that way. CHAIRMAN COYLE: Okay. Commissioner Halas, you had some questions or a comment? COMMISSIONER HALAS: Well, I just wanted to know, the Conservancy has stated that they want to put this in preserves, so are you going to put it in preserve, or do you have something that you're going to build on this sometime in the future? CHAIRMAN COYLE: You're asking that specifically of Ms. Prosser? COMMISSIONER HALAS: Sure. CHAIRMAN COYLE: Okay. Ms. Prosser, please come and respond to that question. MS. PROSSER- BOVARD: Thank you. Good morning. Kathy Prosser - Bovard, president and CEO of the Conservancy of Southwest Florida, at least for a few more weeks. Pleased to be here. In answer to your question, Commissioner Halas, the Conservancy has always been very clear, first and foremost we would like to have these two parcels preserved. We believe that it should be a part of Naples Central Park. We believe that that is what the citizens voted for. However, if the county is unable or unwilling to purchase these two parcels and keep it in preservation, then the Conservancy has offered to pay $4 million, which was the price given to us by the Trust for Public Land. And what we would do is to have an entrance off of Goodlette -Frank Road that allows people to come into our nature center and find the Conservancy, because we do educate millions of people every year about the environment, and we do offer wildlife rehabilitation as a service to this community. The more people that find us, the more people that will benefit from it. COMMISSIONER HALAS: My question is, are you -- Page 66 Agenda Item No. 12B October 27, 2009 Page 112 of 149 November 15-16,2005 eventually plan to build any buildings on this property? MS. PROSSER-BOVARD: We do not have a plan, period. We want an entrance, and that is what we would like to do. We would, beyond that, use the rest of the land, integrate it into a Naples Central Park. COMMISSIONER HALAS: Okay. Now, about 18 months ago there was a gentleman that came before me with a big grandioso plan, and it was an architect out of Boston. And in that plan was an amphitheater that you wanted to put in and some other things. MS. PROSSER- BOVARD: We didn't want it put in, and it wasn't our plan, and we didn't support it. And that has been a misconception that has been prompted by county staff to commissioners. It is not correct. It is not our plan. It was a Fleischmann plan. COMMISSIONER HALAS: Would you -- MS. PROSSER- BOVARD: I am telling you the Conservancy's plan is to spend $4 million of very hard -earned money -- and let's not forget, we, too, are a non - profit organization. And we are willing to spend $4 million to preserve this parcel, for the most part, and have an entrance that allows more people to come to the Conservancy and integrate the rest of that land into a Naples Central Park consistent with the overall plan that will be developed by the county. That's it. (Applause,) COMMISSIONER HALAS: Okay. My other question is, would you be willing, if we went out on the open market, as Commissioner Henning said, and get an honest appraisal that's up to date? I believe the gentleman said it was about eight, nine months old -- and to get an appraisal, and then offer that to you as the first option? MS. PROSSER- BOVARD: Commissioner, if we were intending to develop high -rises or affordable housing on that land, we'd be very happy to go get some other appraisal. But we believe, given that most Page 67 Agenda Item No. 12B October 27, 2009 Page 113 of 149 November 15-16,2005 of that land will be in preservation consistent with what the county and the voters want, that $4 million is a very high price for a non - profit to pay to do something to preserve land that really should be done by this county commission. (Applause.) COMMISSIONER HALAS: So can I -- CHAIRMAN COYLE: Let --just a minute. Ladies and gentlemen, please hold your applause. It's going to take us a long time to get through this, and if we have to wait for you to finish applauding every time, it's going to be a long, long day for us all. So please hold your applause, and then applaud when we finally make a decision. Okay. Commissioner Halas, go ahead. COMMISSIONER HALAS: This land presently, I believe, is commercial. MS. PROSSER- BOVARD: Yes, sir. COMMISSIONER HALAS: So would you have any -- any qualms if we just pulled the zoning off of that so that it's permanently in a preserve so that the only thing you can do with it is to put a roadway in and that's it? MS. PROSSER- BOVARD: We are happy to talk about that as long as you understand we don't have our plan developed yet. COMMISSIONER HALAS: What's the plan? MS. PROSSER- BOVARD: Okay? So -- the plan is to put an entrance in there. COMMISSIONER HALAS: Okay. And is there anything else? MS. PROSSER-BOVARD: But whether that entrance, for example, has a gate through which people will come, we don't know that. So within those confines, let me tell you this, I don't have a plan today because we aren't that far along. But what you do have today is the word of the Conservancy of Southwest Florida, who has been working in this community for 41 years, and that word today should Page 68 Agenda Item No. 12B October 27, 2009 Page 114 of 149 November 15-16,2005 be good enough to make this happen. COMMISSIONER HALAS: Okay. CHAIRMAN COYLE: Commissioner Coletta? COMMISSIONER COLETTA: Yes. I need to clarify something. Kathy, thank you very much. I -- MS. PROSSER- BOVARD: Thank you. COMMISSIONER COLETTA: --agree with just about everything you say. And you're the first person today that brought up the word affordable housing. It hasn't been mentioned here, and I just want to make sure and try to get the sentiments of this commission. Before Commissioner Henning went on break -- you surprised me with your motion, you really did. You sent a letter out, a memo to the commissioners, and you mentioned affordable housing in it. It might be a good thing now if we established the fact that we're going to be able to talk about this, because I've seen this as an opportunity, if not for affordable housing there, to be able to draw this community into the affordable housing issue, kicking, screaming, or whatever it takes. The Chamber of Commerce, everyone else that bought into this and says, this is the most perfect use of this land is for the Conservancy. Maybe they're right, but we've still got an underlying need for affordable housing. And I've been working on this for 15 years, and I hear the same rhetoric over and over and over again. And if I could force the issue through this particular thing, negotiate later, as people go forward and they've got a vested interest to come up with affordable housing in the urban area, then we would have been a better community for it. But I want to make sure that this is off the table. I, for one, am still willing to discuss it. But if my fellow commissioners don't think this is something they want to discuss, then so be it. CHAIRMAN COYLE: Yeah. That is a good way to expedite this discussion, because it is the affordable housing issue that has Page 69 ■ Agenda Item No. 12B October 27, 2009 Page 115 of 149 November 15 -16, 2005 dictated the interest in purchasing this property to some degree. And I would like to make one other comment. Almost every PUD that comes before us, we demand that there be an affordable housing component or contribution from that PUD. That's become a regular exercise with this board for the past year and a half or two years, perhaps. There -- and we have the opportunity to demand affordable housing in parcels four, five, six, seven, and eight, or maybe even 13 if this other developer consummates the purchase of this property. So as I see it, any way we go, we're going to get some affordable housing here one way or the other. So with that, I'll go to Commissioner Fiala. COMMISSIONER FIALA: Yes. I applaud Commissioner Coletta's passion for this, and I totally agree that we need to do something about affordable housing and keep it in the spotlight. And like he said, probably not on this piece of property because it doesn't really make any sense, but -- COMMISSIONER COLETTA: I didn't say that. COMMISSIONER FIALA: Well, that's what I read into it. Maybe I was wrong. That's why I asked about buying one of those other pieces of property. That's why I asked TPL if there was a way for us to purchase the others. But then -- and I thought maybe we could use one that's right there on Golden Gate Parkway for this project instead, which would certainly make a lot of sense, but then they said they've already sold it. So I think that maybe, you know, as long as we keep it in the forefront of our minds and continue to try and find affordable housing -- maybe we couldn't do it. But like Commissioner Coyle said, I think that's a great idea -- nobody's mentioned that at all -- maybe to insert some of it right in each one of these parcels, and that would work. CHAIRMAN COYLE: Okay. Commissioner Henning? COMMISSIONER HENNING: Yeah. I -- you know, that's Page 70 Agenda Item No. 12B October 27, 2009 Page 116 of 149 November 15 -16, 2005 somebody else's land, unless we decide to purchase it. So how can we tell them what kind of housing to put on this? COMMISSIONER FIALA: We do everybody else. CHAIRMAN COYLE: We do it all the time. COMMISSIONER HENNING: Well, we exact some monies out for the affordable housing land trust. COMMISSIONER FIALA: Right. But we do like to see them actually build some right on their property. That was -- COMMISSIONER HENNING: And how many times have we demanded that? How many times are we going to demand it today? Have we demanded it on the summary agenda today? No. So, you know, I don't believe that's a true statement. You know, my issue is, is getting a fair value for the piece of property. Purchase it, and if we can't get a fair value, then it's -- then it's really up for discussion with what to do with the piece of property. COMMISSIONER FIALA: Well, Commissioner Henning, if it were actually -- see, if it would be used for commercial, then the value would probably be higher, as Kathy Prosser pointed out. But being that it's going to be mostly in preservation or used as a park, I would think that that would reduce the value to what they're offering to pay. COMMISSIONER HENNING: The property is zoned commercial. COMMISSIONER FIALA: Right. COMMISSIONER HENNING: If I tear your house down -- you want to sell your house, and I tear it down and use it for a park, that's my privilege, but you're not going to discount your property, your house to me if I want to turn your property into a park. And if you wouldn't do it with your own money, you shouldn't be doing it with the taxpayers' money. COMMISSIONER FIALA: Well, maybe we could ask Conservation Collier if they would help with the price, if that would make you feel a little bit. Maybe Conservation Collier could help. Page 71 Agenda Item No. 12B October 27, 2009 Page 117 of 149 November 15 -16, 2005 COMMISSIONER HENrNING: I'm just fielding for the taxpayers, that's all. CHAIRMAN COYLE: Commissioner Coletta? COMMISSIONER. COLETTA: Yeah. Well, Commissioner Henning did hit on some points that are very valid. We've never required anyone to put it in, affordable housing. In this case, the -- if this is going to be commercial, what we have had them come forward and donate out of the goodness of their heart is 50 cents per square foot, which is really a pittance towards affordable housing. I just want to get this part behind us. I'm going to make a motion at this time just to be able to get this on the table that, what we're doing here today, that we require an affordable element in 12 and 13, and I'll make that motion now just to be able to clarify the situation. COMMISSIONER FIALA: What did you say? CHAIRMAN COYLE: You don't mean 12 and 13. You're talking about 11 and 12? COMMISSIONER COLETTA: I'm sorry, yeah, 11 and 12. Thirteen would have been neat, but it's a little farther over. And if that fails, then we know where we stand as far as the affordable housing issue goes, or if it fails either way, it doesn't get a second or if it doesn't get the vote. CHAIRMAN COYLE: Okay. Commissioner Coletta is making a motion to require that there be affordable housing in parcels 11 and 12. Is there a second? (No response.) CHAIRMAN COYLE: Okay. It dies for lack of second. So that means that there is not sufficient support on the board to purchase this property for the purpose of putting affordable housing on 11 and 12. Let me address affordable housing just for a moment. There have been many times when developers have been required to place affordable housing in their developments, particularly when they wanted increased density. The best way for them to get increased Page 72 Agenda Item No. 12B October 27, 2009 Page 118 of 149 November 15-16,2005 density is by providing affordable housing units. And I can assure you that at the price that this developer is paying for these parcels, they're going to need some increased density. And so we can control it by doing that. We can grant increased density to the extent that affordable housing is accommodated there. So I believe we can, when the time comes, have the discussion with the developer about a mixed -use development that will require some affordable housing. But now let's get back to parcels 11 and 12. The crux of the matter really is this, I think: The property is more valuable as commercial than it is as conservation, hence the reason the Conservancy is offering $4.5 million for it -- $4 million for it. How about another five? MS. PROSSER- BOVARD: Nice try, but going once, twice -- CHAIRMAN COYLE: -- four million dollars for it because it would be in conservation, and we're being offered the property at the same price because it is going to be preserved, or you would expect that it would be preserved at least. TPL was expecting that it be preserved. It is worth more than that only if it is commercial and if it's going to be developed. The board has just said it's not going to be developed for affordable housing. So now the question is, what does the board intend to do with it? Would the board like to see it rezoned to conservation? COMMISSIONER HALAS: I would. CHAIRMAN COYLE: And -- is there sufficient support on the board for that? COMMISSIONER FIALA: Let me ask a question, if I may. CHAIRMAN COYLE: Sure, go ahead. COMMISSIONER FIALA: I think it's a great idea. Would they be able to build an entryway into -- number -- two questions. Would they be able to build an entryway into the Conservancy off Goodlette Page 73 Agenda Item No. 12B October 27, 2009 Page 119 of 149 November 15-16,2005 Road with a conservation zoning on it, and, secondly, can it also -- can the rest of the land be incorporated into a central park? Do we need to have some kind of a park zoning to it, or can that all be under conservation? CHAIRMAN COYLE: I think that's a question best answered by the Conservancy and our staff. COMMISSIONER HENNING: That's not -- park is not preservation. MS. PROSSER- BOVARD: Well, passive recreation, which is what Conservation Collier buys land for, what the voters thought they were voting for, both in 2002 and 2004. And that's what we're talking about, Commissioner, passive recreation, a central park. COMMISSIONER HENNING: So are you going to come back for Conservation Collier to purchase this property? MS. PROSSER- BOVARD: No, not -- the Conservancy of Southwest Florida is standing here offering to purchase this property for $4 million. Conservation Collier is interested, as you were briefed earlier, of that one big piece. But during Conservation Collier's referendum, this whole parcel was used as the poster child for what the county and the citizens of Collier County could get if they passed Conservation Collier. And now it's have -to time. It's decision time. CHAIRMAN COYLE: Yes, yes. MS. PROSSER- BOVARD: Let's do what the voters said. CHAIRMAN COYLE: Before I go to Commissioner Halas, let me just ask another question. If the board were to have a desire to purchase this property and then down zone it to conservation, would you then still be interested in purchasing the property for $4 million as conservation? MS. PROSSER- BOVARD: I would like to defer to my legal folks here to answer that question, if you don't mind. Dick Grant, member of our board. Page 74 Agenda Item No. 12B October 27, 2009 Page 120 of 149 November 15-16,2005 MR. GRANT: For the record, I'm Dick Grant. I'm a board member. I am an attorney, but I'm here as a board member, but I do practice law. I think it all depends on the detail. I don't think the Conservancy has a problem in agreeing to some limitations of what could be done with this property. We've said we're not planning to make commercial use of it. We want to acquire it to see to it that it is protected and integrated into our nature center campus, and, frankly, integrated with the rest of the land the county buys. Make it all work for everybody. Can we sit here today and say, only a road? Maybe we want a little shelter for people to sit under when they get off a bus or something, maybe we want to put a few parking spaces. We probably need some water retention, I don't know. We're incapable here today of saying. But I think if the question is, is the Conservancy willing to spend the $4 million and then eliminate the potential that typical commercial retail office -type development could be put on there, I think the answer to that is yes. We're willing to discuss that. CHAIRMAN COYLE: Okay. Thank you. MR. GRANT: But I don't think that's something you can expect us to sit here today on the podium and do. CHAIRMAN COYLE: I understand that. MR. GRANT: - We'll sit down with the county manger and the county attorney. CHAIRMAN COYLE: I'm just trying to draw the parameters for hopefully a compromise on this issue. And Commissioner Halas? COMMISSIONER HALAS: That's where I would like to go on that is that we pull any kind of zoning off of this and put it into preserve, and that they're only allowed to build an access road. And if they need to work on water retention, that would be part of it, but no Page 75 Agenda Item No. 12B October 27, 2009 Page 121 of 149 November 15-16,2005 other structures on there. CHAIRMAN COYLE: Okay. County Manager, can you give us a brief overview of what is permitted on a conservation parcel? MR. MUDD: No. CHAIRMAN COYLE: Is there anybody here to do that? MR. MUDD: Not off the top of my head. I'm looking for that -- CHAIRMAN COYLE: Okay. MR. MUDD: I'm looking for that planner. CHAIRMAN COYLE: David Weeks is here. MR. MUDD: There's David. CHAIRMAN COYLE: Okay. MR. WEEKS: For the record, David Weeks, Planning Manager in the Comprehensive Planning Department. Commissioners, the conservation zoning district allows for a variety of conservation uses. For example, the Conservancy's nature center itself is zoned conservation right now. Also some of our state and national parks in Collier County are as well. The point in mentioning that is simply so that you'd understand the types of facilities that we presently see in that land, but also you'd recognize that the Conservancy and those other types of conservation uses have to have access to their property, they have to have essential services, in many cases. They're allowed to have a nature center, allowed to have a gift shop, they're allowed to have a variety of uses. To the specific question of, could they have an access road, I would say absolutely, CHAIRMAN COYLE: Okay. And they could have facilities of the type they have on their currently zoned conservation property? MR. WEEKS: That's correct. CHAIRMAN COYLE: And that would be permitted under conservation use? MR. WEEKS: Yes, sir. Both by the conservation zoning, as well as by future land use designation. Page 76 Agenda Item No. 12B October 27, 2009 Page 122 of 149 November 15-16,2005 CHAIRMAN COYLE: Okay. Mr. Dickman? MR. DICKMAN: Yes, sir. Andrew Dickman for,the record, Policy Director and legal counsel at the Conservancy. I think we're very close to a solution here. And, quite frankly, Commissioner Halas, I understand your concern, as I believe a concern of other commissioners, that we don't get the benefit of a commercial zoning. And as you've heard already, that we are not seeking that. We could care less if that was agriculture or conservation, we would still be offering the same price. So I think what I want to avoid though is some motion, that tries to specify to too much of a detail, because I think the details need to be worked out. And here's my suggestion, is that, vote to allow us to buy this property, TPL will get up and tell you that they want to sell it to us, before the closing -- and because you can't -- the rezoning cannot occur quick enough before the closing has to occur. TPL, the county manager, Chuck Carrington and your real estate expert, and us will sit down and draft some type of restriction that can be placed on the land that will prevent any over building it. I mean, this is -- obviously if you don't believe that, you know, that's our mission, we would not develop it; however, we understand the concerns. And if it -- if down the road it ends up that we file an application to rezone the property, which candidly will probably take several months, at best, -but the closing has to occur in December. That's TPL's need right now to get all of this closed. And Mr. Garrison is here, and he could probably talk to you about that. But we are very willing. Vote today to allow us to buy this property, we'll sit down with county staff, with TPL, come up with some type of declaration of covenants that can go on the land that will achieve what you want, which is to make sure that we don't have the benefit of this intense zoning. We can do that. We're ready to do that. Page 77 Agenda Item No. 12B October 27, 2009 Page 123 of 149 November 15-16,2005 CHAIRMAN COYLE: Okay. Thank you very much. Mr. Garrison, you really are interested in just one thing, and that is, that you have the money obligated to do the closing in December; isn't that correct? MR. GARRISON: Commissioner, that's a primary concern we have. CHAIRMAN COYLE: Okay. MR. GARRISON: But we also, you know, feel strongly that we want to see the wishes of the taxpayers of Collier County honored, you know, as the way they voted last November. And we firmly support and believe that the Conservancy will do the right thing on the property, and we support their position. CHAIRMAN COYLE: But if we were to approve a motion similar to what Mr. Dickman has just outlined -- MR. GARRISON: Yep. CHAIRMAN COYLE: -- that would serve your needs with respect to the preparation for your closing in December -- MR. GARRISON: That's correct. CHAIRMAN COYLE: -- on a total package? MR. GARRISON: That's correct. CHAIRMAN COYLE: Okay, Commissioner Halas? COMMISSIONER HALAS: Sir, on the -- excuse me. On the properties that were negotiated up there at the Parkway, how did you work out the deal as far as determining commercial, agricultural, and COMMISSIONER FIALA: Residential. COMMISSIONER HALAS: -- and residential? How did you work that out? MR. GARRISON: There was nothing worked out. Basically they bought what exists. And you know, they can make application for changes, but they are acquiring the property with the density that is there. Page 78 Agenda Item No. 12B October 27, 2009 Page 124 of 149 November 15 -16, 2005 COMMISSIONER HALAS: So you think this is an honest price for this property? MR. GARRISON: I do. COMMISSIONER HALAS: Even though it's -- the estimate is about eight months old? Now, if you remember, if you recall when we went through this whole scenario, we went out and got about four different appraisals, and there was only one appraisal by the opposing side. And, of course, they had an appraisal that was extremely high. I'm wondering if this appraisal is extremely low. MR. GARRISON: Commissioner, are you addressing specific parcels in your question or the overall? COMMISSIONER HALAS: I'm addressing the parcels in 11 and 12 here. Do you think -- who did you use for an appraiser? MR. GARRISON: The same organization that did the third county appraisal, Urban Reality Solutions. COMMISSIONER HALAS: Okay. Were they the same people that did the appraisal up there at the top too? MR. GARRISON: They did an appraisal also of the -- they're the company that did the review of the seller's appraisal and the first two county appraisals. If you can recall back, that one was one of the many steps along the way. COMMISSIONER HALAS: Did they have anything to do with the appraisal of the property up here that fronts on Golden Gate Parkway? MR. GARRISON: We had this company break out or allocate the appraisal that they performed in -- I think Chuck Carrington says it was -- effective date of April -- May 14th. Allocate that appraisal out to these four separate tracts of land. COMMISSIONER HALAS: Okay. MR. GARRISON: And, in fact, when you split it up and add it up, it came to more than the original number. The sum of the parts was greater than the whole by a couple million dollars. Page 79 Agenda Item No. 12B October 27, 2009 Page 125 of 149 November 15 -16, 2005 COMMISSIONER HALAS: So you're saying that you feel that the -- that this area was then -- let's get back to the question. Did they do an honest appraisal of this particular -- MR. GARRISON: They did what we instructed them to do, which was to, considering the time available, to allocate the already -done appraisal using MAI appraisal standards to these individual tracts within the parent tract. And I think they did a fair and honest job of that, yes, sir. CHAIRMAN COYLE: Okay. These are the same questions that Commissioner Henning was trying to get at. And I would like to ask a question of Chuck Carrington and you, John, both of you. I'd like to make a statement and I'd like for you to tell me if it is a correct statement. If this property were being sold for development for commercial purposes, $4 million would not be a fair price for it. If it is being sold for conservation use, $4 million is a fair price for it. Is that a correct statement? MR. CARRINGTON: If you instructed an appraiser to appraise 7.37 acres zoned as conservation, I believe the 4 million may be a fair price. But if it was appraised -- it is zoned commercial, if they were asked to appraise that, then I -- you're probably going to see a number between 6 and $8 million. CHAIRMAN COYLE: Yeah, that's what I would expect too. And so, the concern of some of the commissioners is that we want to make sure that the taxpayers are treated fairly. But the only way to get the higher price for this property is to sell it to someone who would develop it. And since we were pretty much instructed by the taxpayers not to develop this property, that we were to preserve it, then the conservation alternative seems to be the one that is best from the standpoint of the perspective of the taxpayers. So under those circumstances, $4 million is a fair price for the property. Is that essentially what we're saying? Agenda Item No. 12B October 27, 2009 Page 126 of 149 November 15-16,2005 MR. CARRINGTON: Under those assumptions, I would say yes, sir. CHAIRMAN COYLE: Okay. MR. GARRISON: I would completely agree that that is a fair comment. CHAIRMAN COYLE: Okay. Commissioner Henning? COMMISSIONER HENNING: Well, let's talk about, while we're talking about the wishes of the voters, selling off the northern piece, is that the wishes -- wish of the voters? CHAIRMAN COYLE: No. COMMISSIONER HENNING: And here's my understanding, that we were going to purchase the land for the zoo and surrounding areas. That's very vague in my opinion. I'm not saying that we need to rush and buy this to sell it to a commercial. You know, I'm just saying, you know, we're rushing into something and selling something at less than value. That's all. CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: No. I need to correct that. We're not selling it because we don't own it, but we're allowing it to happen. CHAIRMAN COYLE: Yeah. Well, in answer to your other question, I would have preferred that we could have purchased the entire amount, but I think it's important that everyone understand we never had the money to do that. - We never had the alternative to do that. We couldn't ever break up the property so we could purchase what we thought was important: We talked about state and federal grants, but you can't even apply for those until you own the property. We never had the opportunity to own the property, so we couldn't apply for any grants, so we couldn't get the money. So it's a very, very complex and confusing process. But I think all of us wanted to preserve the entire parcel. It just -- the way it was Page 81 Agenda Item No. 12B October 27, 2009 Page 127 of 149 November 15-16,2005 presented, it just made it impossible to do, unfortunately. And we appreciated TPL's efforts in getting us where we are here. Okay. Commissioners, let me -- we've got how many speakers here? MS. FILSON: Eighteen. CHAIRMAN COYLE: Okay. I'm going to try to get a sense of the commissioners about where we are on this. And we will not take a vote until after we've heard from the public, but perhaps you will conclude maybe it's not necessary to spend the next hour and a half talking about this any longer. But we're at the point where we can either permit -- we could permit the Conservancy to purchase this property with certain agreements with respect to its use. It's my understanding that if we wanted to down zone the property, it would take some time to do that, and we could not do that before December, so that really isn't an option at the present time. It could be a subject of negotiation between us and the Conservancy, and it could be a contingency on the sale of the property to the Conservancy. And I'd like to get an indication as to whether or not there's any support for that on the board. COMMISSIONER HALAS: I'd like to see it down zoned. CHAIRMAN COYLE: Okay. We can't down zone it before December, but we can make that a contingent -- MR. DICKMAN: We will commit to that. We will work that out and we will find a zoning commensurate with what we have now. And your zoning professional told you that that's -- our uses that we have now are commensurate with that. We will make that commitment. CHAIRMAN COYLE: And do I see three nods here anywhere? COMMISSIONER COLETTA: I'm sorry, one more time. This is to approve the county going back and negotiating with the Conservancy? Page 82 Agenda Item No. 12B October 27, 2009 Page 128 of 149 November 15-16,2005 CHAIRMAN COYLE: No. Actually permitting the Conservancy to purchase parcels I 1 and 12 for $4 million provided that they adhere to conservation zoning on this property and that we then will take action to down zone it to conservation as quickly as we can. Is that where we are? MR. DICKMAN: Just the wording. I know that the way that we want to have this worded -- because whether it's conservation or agriculture or whatever, I think we need to -- we will agree that we're going to down zone this. CHAIRMAN COYLE: Okay. MR. DICKMAN: Our zoning, I believe, is agriculture. It may be conservation. But if you leave the language broad enough that we can meet with your county manager, with TPL, and get to a place that this use is brought way down from commercial -- because I understand that's the concern here -- bringing the use down to what is commensurate with a $4 million value. Obviously the highest and best value is for major development on this. But if we will -- we will work with the county manager. I don't want -- the language of stipulating a particular zoning may be too limiting -- but give your county the authority to sit with us to down zone this property, put whatever restrictions on it need to occur. The zoning will have to occur after we purchase the property, but that agreement can be worked out before the December closing date. CHAIRMAN COYLE: And that could be a stipulation in the motion. Okay. Commissioner Halas? COMMISSIONER HALAS: I just want to make it perfectly clear we're not going to have any kind of development on here, we're not going to have an amphitheater, we're not going to have all this other stuff on there. MR. DICKMAN: Sir, you have my promise as a gentleman and as a representative of the Conservancy. Page 83 Agenda Item No. 12B October 27, 2009 Page 129 of 149 November 15 -16, 2005 CHAIRMAN COYLE: Commissioner Henning? COMMISSIONER HENNING: Well, I don't see why we're making any other motion, because we either -- the recommendation is either option one, that's all the land except for parcels 11 and 12, or option two that included it. You just let it alone, then the Conservancy got what they wanted. CHAIRMAN COYLE: Well, the problem is, that some of the commissioners have expressed concerns that the Conservancy might do too much to this property and not keep it as a preserve, and it is now commercial. And I think some of the commissioners are looking for a better way to restrict the use of this property. COMMISSIONER HENNING: Well, how can you do that when you already made the decision? If you make the decision not to purchase it, it's going to happen in December. You're just going to have to take the faith of the organization that they're going to do that. CHAIRMAN COYLE: I don't think so, but nevertheless. Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. I just wanted to check. One of the things that's always been important to me, especially with Conservation Collier, was the access to property to the public. Is there -- could we make every attempt possible to have possibly paths wandering through there with some benches, keep it still passive? Is that something that the Conservancy can commit to? MR. DICKMAN: Absolutely. I mean, our present CEO said that we have every intention to integrate this. I personally -- and we've talked about this with a number of people -- it would be great if someone can park at the zoo and the gardens, walk to our nature center, enjoy the whole facility, and vice versa. There's no sense in having people drive from one parking lot to the next. I mean, this could be great. COMMISSIONER COLETTA: I'm not quite through. And I want to apologize if I put some people through a little bit of hell on the Page 84 Agenda Item No. 12B October 27, 2009 Page 130 of 149 November 15 -16, 2005 affordable housing issue. One thing I did get that was very positive was a personal commitment from many of you that come to see me, that regardless of how this turned out, you would dedicate yourself to affordable housing in the future to try to come up with some answers that are missing in the program and see that it goes through. And I'm looking forward to working with you at that end. CHAIRMAN COYLE: Commissioner Fiala? COMMISSIONER FIALA: Yes. In answer to Commissioner Henning's question, I think what we were going to do here is, trying to get -- we were going to approve a commercial paper loan for the remainder over $40 million, is that correct, so you needed 1.5 to make up that 41.5? MR. MUDD: Ma'am, that's the next item, and we'll cover that right after you decide what you're going to do or not going to do, and then we'll go right to it. CHAIRMAN COYLE: Then I'm going to make a motion and see if we have sufficient support to proceed, that we permit the Conservancy to purchase parcels 11 and 12 for $4 million, or that we waive our right or interest in purchasing it, and that would be subject to restrictions on the use that are consistent with conservation zoning, and the details of the zoning will be worked out jointly between the Conservancy and the Board of County Commissioners or staff at a later date. MR. DICKMAN: And TPL. COMMISSIONER FIALA: And TPL. CHAIRMAN COYLE: And TPL. COMMISSIONER FIALA: I second the motion. CHAIRMAN COYLE: All right. We have a motion by Commissioner Coyle, second by Commissioner Fiala. And a question by Commissioner Coletta. COMMISSIONER COLETTA: Yes. Could you include Agenda Item No. 12B October 27, 2009 Page 131 of 149 November 15 -16, 2005 reasonable public access? They agreed to it. COMMISSIONER HALAS: They've got public access off the road. COMMISSIONER COLETTA: Well, yeah, but it's not necessarily -- COMMISSIONER,HALAS: What do you want, ATV in there? MR. DICKMAN: Mr. Commissioner? And I'm probably telegraphing what your attorney's about to tell you, which is, why don't you make the wording that we will restrict the property to the satisfaction of the county and TPL so that you don't get into some type of contract zoning. CHAIRMAN COYLE: Contract zoning, yes, yes, I understand. All right. COMMISSIONER COLETTA: That's part of the motion? CHAIRMAN COYLE: That's part of the motion. Okay. David, go ahead. MR. WEIGEL: Now that you have a motion and you may have a second, are you going to have those speakers that wish to speak? CHAIRMAN COYLE: Well, I'm going to ask the public, do you want to snatch defeat out of the jaws of victory, or do you want us to go ahead and vote on this or do you want to speak? There's one person in the rear who wants to speak. MR. KRASOWSKI: One over here that wants to speak. CHAIRMAN COYLE: Okay, Bob. We've got two of you. All right. MS. FILSON: You don't want -me to call their names then? CHAIRMAN COYLE: Yes. Well, I hope they will -- they will MR. WEIGEL: Waive on the record. CHAIRMAN COYLE: Are we required to call their names legally? MR. MUDD: It would be good, sir, if you call their names. M* * Agenda Item No. 12B October 27, 2009 Page 132 of 149 November 15-16,2005 MR. WEIGEL: So they can waive on the record. CHAIRMAN COYLE: Okay. MS. FILSON: David Tetzlaff. CHAIRMAN COYLE: You can just say you waive if you don't want to get up and speak. MR. TETZLAFF: Waive. MS. FILSON: Sheila Crowley? MS. CROWLEY: I waive. MS. FILSON: Robert Butkiewicz? MR. BUTKIEWICZ: I waive. MS. FILSON: John Ribes? MR. RIBES: I waive. MS. FILSON: Nancy Tetzlaff. She'll be followed by David Roellig. MR. ROELLIG: I'll waive. Please sign the vote. MS. FILSON: Bob Krasowski? Bob, you're second. CHAIRMAN COYLE: You're second, Bob. MR. KRASOWSKI: Okay. This gentleman here? CHAIRMAN COYLE: No. MS. FILSON: The lady. CHAIRMAN COYLE: The lady. COMMISSIONER FIALA: Nancy Jane. MS. TETZLAFF: Nancy Jane Tetzlaff Barrons. I would like to speak on the lease, that that can be modified before five years if there's some kind of a workshop with the commissioners, an open forum, that the concerns of the newly - formed Naples Zoo board, a nonprofit entity, can come forward with their concerns. CHAIRMAN COYLE: Good. Thank you very much. MS. FILSON: The next speaker's Bob Krasowski. He'll be followed by Wayne Agnole. MR. AGNOLE: I'll waive. MS. FILSON: Robert Ott? Page 87 Agenda Item No, 12B October 27, 2009 Page 133 of 149 November 15 -16, 2005 MR. KRASOWSKI: Hello, good morning still. I'm Bob Krasowski. I'm a 26 -year resident of Collier County, and I have an interest in this issue. And I think it's really inappropriate to characterize people who still want to speak as wanting to snatch victory from the jaws -- defeat from the jaws of victory, or whatever, okay, because we might have a different perspective and you don't know what it is. This steam rolling thing that you're doing here is really offensive. Even though -- CHAIRMAN COYLE: Bob, you've got three minutes. Why don't you use them. MR. KRASOWSKI: I know, and I am using them. The -- okay. So what I see here -- initially the voters voted to purchase all of this for $40 million. So you had to make some adjustments, fine. But now, given this map here, you have the Jungle Larry's which you're going to -- you have a deal set already with to operate the zoo, and then below them you have the Conservancy. Where is the public access to this? I think that you should buy 11 and 12 today, the county should, and then work -- then work a negotiated agreement with the Conservancy that would allow you to give them the amount of property they need and then allow for unencumbered public access to especially area number two, where you can have boardwalks and passive park used. You have Conservation Collier, who is heavily influenced by the Conservancy, and I'm not saying that's a negative thing, but they're -- they'll make a move to purchase- -- to participate in the purchase of those properties. But what I don't want to see is that the public, wanting to use this land after paying for it, has to go through Jungle Larry's or through the Conservancy to get to it. I want a path to it. Now, there's some land to the north of it. But I think you have to do your homework better and do some more work as far as. assuring Agenda Item No. 12B October 27, 2009 Page 134 of 149 November 15 -16, 2005 public access. You're saying that you're going to down zone this to conservation, but the point was made, they can still build -- put buildings on there, sheds, they can put gift shops. That's commercial environmental. That is not a conservation. This -- we voted to preserve this stuff for passive use, not for the expansion of any special interest. I appreciate the Conservancy. I appreciate what they do in the community. You have -- they fill this room with their supporters. There's a lot more people in this county that have interests in different areas that want to see their preservation money spent, their tax dollars spent, in a more, I believe, appropriate way, that are not in this room today. So you have to take them into consideration. So before you steam roll this thing along, Commissioner Coyle, I would suggest that you give greater consideration of this and buy 11 and 12, by the county, and make sure the county gets what it wants. No building on there. It's for preservation. There's gopher tortoises and all that. If they're real environmentalists, they won't want to expand the building. Look what happened years ago, to those of you who have been here, Lely Barefoot Beach. It was an option for the county and the state to buy the whole thing. Some people got involved that were more interested in development. They developed part of it. The park for the people is way down at the end. We had to fight for years to get past the guardhouse, which I don't think that's still happening, but -- so that's another example of, we don't want to be encumbered in our access to this property. Thank you very much for your attention. CHAIRMAN COYLE: Thank you, Bob. MS. FILSON: The next speaker is Robert Ott. He'll be followed by Kathy Patterson. MS. PATTERSON: I waive. Agenda Item No. 12B October 27, 2009 Page 135 of 149 November 15 -16, 2005 MS. FILSON: Andrew Dickman.? MR. DICKMAN: I'll waive, already spoke. MS. FILSON: Richard Grant? MR. GRANT: I waive. MS. FILSON: Kathy Prosser? MS. PROSSER- BOVARD: Waive. MS. FILSON: Okay, sir. MR. OTT: My name is Robert Ott. I reside at 160 Moorings Park Drive. I'm a citizen of Naples for 27 years. I was a director of the Conservancy for five or six years in the 1980s. And ever since the Conservancy has desired to establish its property where it is now, it has wanted this particular piece of property we're talking about today because they did want the access to Goodlette Road. I hope that the county will not deny and choke off the last vestige of the possibility of the Conservancy to purchase this property and utilize it as an easement or as an entrance into their property. And as sure as I stand here, the Conservancy is not going to build buildings on that property and decimate it. This is not the mission of the Conservancy. The mission -- the purpose of the Conservancy is to preserve habitat and properties that conform with wetlands and other environmental habitat. And you could rest assured that what they really want there and only want there is an entrance into this property. Thank you very much. CHAIRMAN COYLE: Thank you. MS. FILSON: Brad Cornell. Bill Klohn. He'll be followed by Mimi Wolok. MS. WOLOK: Waive. MS. FILSON: Bill Barnett. MR. BARNETT: I'd like to waive, but I have to read a letter. MS. FILSON: Okay, go ahead. CHAIRMAN COYLE: Wait a minute. Bill Klohn was first. COMMISSIONER HENNING: The other Bill. Agenda Item No. 12B October 27, 2009 Page 136 of 149 November 15-16,2005 MS. FILSON: No, Mr. Klohn's first. MR. KLOHN: Honorable Mayor. Good morning, thank you. My name is Bill Klohn. I'm president of MDG Capital Corporation. As you know, our company is very active in the development and promotion of affordable housing. The need for affordable housing in not just this county, but ever county, is tremendous, and it's getting worse by the day. I'm not going to waste a lot of time because I can see where this vote is going to go today, but I want to ask one question. There's a big pie on your screen. A lot of that pie is going to conservation, and I recognize -- and by the way, I do applaud the efforts of the Conservancy. I think you've done a great job over the years. I've been here 25 years, and I can see why you want this land. Back to the pie. Parcels 11 and 12 -- I believe it's 11 and 12 -- 11 and 12 are also interesting parcels for affordable housing. And my question is, can't we all have just a slice of the pie? And I would suggest that you consider that we work together and give you the access through the land but possibly also add some affordable housing to it while you're getting the access. In the last week, I was contacted by Cormac Giblin, who is the affordable housing fellow here in Collier County. We worked together to develop a plan that provided 79 affordable, professional, workforce housing units for this property. I recognize that that plan may have gone to a lot of work for nothing. But before we let it go today, I wanted to ask the question, can we not consider giving the Conservancy its access but also provide the affordable housing that is desperately needed, not just in Collier County, but in this area of Collier County and Naples? As we all know, you've got hospitals within a half a mile, you've got a police station very nearby. You've got many medical services nearby, grocery stores. And to put affordable housing where it's needed, where the people are working, that's what we should be Page 91 Agenda Item No. 12B October 27, 2009 Page 137 of 149 November 15-16,2005 thinking about. And this piece of land that we're talking about today, parcels 11 and 12, once it's gone for affordable housing or a compromise with the Conservancy for their access in affordable housing, it's the last opportunity for this. So please -- please consider before you absolutely vote and down zone it -- and, again, I do support Conservancy's mission in Collier County, but maybe there's a compromise here. Thank you very much. CHAIRMAN COYLE: Thank you. MS. FILSON: The next speaker is Mayor Barnett, and he'll be followed by your final speaker, Kathy Granoff. MS. GR.ANOFF: I'll waive. MS. FILSON: Okay. MAYOR BARNETT: Thank you, and good morning, Chairman Coyle, fellow County Commissioners. I would waive, but I have to read this based on my orders from the rest of city council. Dear Chairman Coyle and County Commissioners, on behalf of the Naples City Council and the City of Naples Planning Advisory Board, I am writing to urge your support of the Conservancy's offer to purchase a 7.37 -acre site from the Trust for Public Lands. At our city council meeting on Monday, November 14, 2005, we discussed the importance of the preservation of this property and they all recognize that the need for more workforce housing in Collier County is an issue that most people can agree upon. However, the property that the Conservancy- has offered to buy, in Council's opinion, is more suited for conservation, and I believe that was the intent of the voters. Your consideration of this request is greatly appreciated. Thank you very much. CHAIRMAN COYLE: Thank you very much, Mayor Barnett. That was our last speaker? Page 92 Agenda Item No. 12B October 27, 2009 Page 138 of 149 November 15 -16, 2005 MS. FILSON: Yes, sir. CHAIRMAN COYLE: Commissioners, do you have any questions? (No response.) CHAIRMAN COYLE: Then I'll call the motion. All in favor of the motion, please specify by saying aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN COYLE: Any opposed, by like sign? COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Okay. It passes 4 -1, with Commissioner Henning dissenting. (Applause.) MR. DICKMAN: Thank you, CHAIRMAN COYLE: Good luck to you all and thank you for being here. Have a good day. Where would you like to go next? We have seven minutes. Item #I OF RESOLUTION 2005 -399: AUTHORIZING THE BORROWING OF AN AMOUNT NOT TO EXCEED $7,200,000 FROM THE POOLED COMMERCIAL PAPER LOAN PROGRAM OF THE FLORIDA LOCAL GOVERNMENT FINANCE COMMISSION PURSUANT TO THE LOAN AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE COMMISSION IN ORDER TO FINANCE THE ACQUISITION OF THE CARIBBEAN GARDENS PROPERTY; AUTHORIZING THE EXECUTION OF A LOAN NOTE OR NOTES TO EVIDENCE SUCH BORROWING; AGREEING TO SECURE SUCH LOAN Page 93 Agenda Item No. 12B October 27, 2009 Page 139 of 149 November 15 -16, 2005 NOTE OR NOTES WITH A COVENANT TO BUDGET AND APPROPRIATE LEGALLY AVAILABLE NON -AD VALOREM REVENUES AS PROVIDED IN THE LOAN AGREEMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO EFFECT SUCH BORROWING; AND PROVIDING AN EFFECTIVE DATE, MIKE SMYKOWSKI, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET — ADOPTED MR. MUDD: Commissioner, we need to do IOF. CHAIRMAN COYLE: IOF, okay. MR. MUDD: And l OF -- ladies and gentlemen, if you'd -- ladies and gentlemen, we're going to try to get one more item done before lunch, so if you could -- if you want to stay, please stay; if you want to leave, please do that quietly. Discussion out in the hallway is encouraged. Brings us to IOF. This item to be heard with item 10E. It's a recommendation to adopt a resolution to authorize the borrowing of an amount not to exceed $7.2 million from the Pooled Commercial Paper Loan Program with the Florida local government finance commission pursuant to a loan agreement between the Board of County Commissioners and the commission in order to finance the acquisition of the Caribbean Gardens property; authorizing the execution of a loan note or notes to evidence such borrowing; agreeing to secure such loan note or notes with a covenant to budget and appropriate legally available non -ad valorem revenues as provided in the loan agreement; authorizing the execution and delivery of such other documents as may be necessary to effect such borrowing; and providing an effective date. Mr. Michael Smykowski, your director of office and management and budget will present. Mike, I think I just did present. If you could just tell the board Page 94 Agenda Item No. 12B October 27, 2009 Page 140 of 149 November 15 -16, 2005 how much you need in order to purchase what they just voted on in 10E with all negotiated costs, sir. MR. SMYKOWSKI: Actually -- for the record, Michael Smykowski, O &B director. I believe you can approve the resolution in its current format recognizing obviously that the total purchase price of 41,5 -, that will be plus closing costs, plus contingencies and prepaid interest on the commercial paper loan. My guess is, that would probably be a million and a half dollars. But, again, recognizing that you don't have an exact figure because we'll be calculating prepaid interest based on the prevailing interest rate. At that point in time, my recommendation will be to adopt the resolution in its current format recognizing that you'll ultimately be borrowing much less than 7.2 million because the margin above 40 in the actual purchase price was only a million and a half dollars. You had approximately outlined in the executive summary about $170,000 worth of anticipated closing costs, title insurance, and the like, and then you'd have prepaid interest. But my recommendation would be, adopt it in its current format. Obviously the clerk will oversee the final transaction in conjunction with us, so we will not be issuing any more money than is absolutely necessary to purchase that property and close on the transaction as approved by the board. CHAIRMAN COYLE: Commissioner Coletta? COMMISSIONER COLETTA: Yes. I understand that we're going to be spending less than the $40 million we're authorized, so I can support this. I make a motion for approval. COMMISSIONER HENNING: I'll second it. CHAIRMAN COYLE: Motion for approval by Commissioner Coletta, second by Commissioner Henning. Any further discussion? MR. MUDD: I need to clarify a statement that Commissioner Page 95 Agenda Item No. 12B October 27, 2009 Page 141 of 149 November 15 -16, 2005 Coletta just made. If I heard it right, he said we're going to be spending less than the $40 million. We're going to be spending less than the $7.2 million that's in this particular item. The $40 million is already a given. So it's going to be something above $40 million. And from what I just garnered from Mr. Smykowski, it's going to be something in the order of about 42.5 million. MR. SMYKOWSKI: One other -- one other point, Mr. Chairman, before you take that roll call vote on the motion is, that there were -- from the tax levy this year, you actually levied ad valorem taxes on the .15. Obviously whatever cash we have in the bank prior to closing, we would use that available cash to, in effect, buy down the necessary amount of the commercial paper loan. We would only want to borrow exactly enough to close on the transaction, and that would take into account any cash that would have been collected from your .15 tax mill levy that was levied in FY -'06 for the Caribbean Gardens as well. Just so that's clear. CHAIRMAN COYLE: Commissioner Coletta, does your motion still stand? COMMISSIONER COLETTA: It still stands, but I still understand that with the grants that we're going to get out there, that the cost will eventually come down to an undetermined number. We went through a great discussion on this earlier, and I'm really getting perplexed now on this part of it. MR. MUDD : Commissioner, the grants are not a given, okay? We are going to apply for them, we are going to do our darnedest to go get those dollars, okay. We're going to make our best case in front of those agencies that basically can make the approvals on that and bring those things home. The reason we wanted to go to commercial paper on this particular item is we believe as a staff, that we are going to receive dollars from Big Cypress Basin, from Conservation Collier, from the Florida Community Trust, that will significantly -- Page 96 Agenda Item No. 12B October 27, 2009 Page 142 of 149 November 15-16,2005 COMMISSIONER FIALA: Airport. MR. MUDD: -- bring down the long -term lending that we have to do. That's why we didn't go into a bond item. It would be foolish on our part from a staff perspective and our financial advisor's recommendation. Why would we go into a long -term borrowing on 40 million when all this money comes in and then you're still stuck, you can't pay it off, you can't pay the loan off for some five to 10 years when the bond item -- COMMISSIONER COLETTA: I understand you, Mr. Mudd. And what I'm saying is is that we've had the commitment from many, many people that came before us that they're going to step up to the plate, and I expect that they will. MR. MUDD: Yes, sir. I'm expecting it, too, sir. CHAIRMAN COYLE: Commissioner Fiala? COMMISSIONER FIALA: I was going the same place as Commissioner Coletta, so nothing else. CHAIRMAN COYLE: All right. Is there a motion to approve? COMMISSIONER COLETTA: I did, we did. CHAIRMAN COYLE: That's right. You made a motion to approve, Commissioner Henning made the second. COMMISSIONER HENNING: And the clarification is to approve the resolution. CHAIRMAN COYLE: Yes. COMMISSIONER HENNING: Okay. CHAIRMAN COYLE: Okay. All in favor, please signify by saying aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Any opposed, by like sign? Page 97 Agenda iteM o. October 27, 2009 Page 143 of 149 November 15 -16, 2005 (No response.) CHAIRMAN COYLE: It passes unanimously. MR. SMYKOWSKI: Thank you. Item #6B PUBLIC PETITION REQUEST BY JO PRESI BRISSON TO DISCUSS ROAD PAVING IN GOLDEN GATE ESTATES - MOTION TO BRING BACK AT A FUTURE BCC MEETING -- A DDDl1t rnrti CHAIRMAN COYLE: Now, County manager, do we -- Sue, do we have the other two public petitions still pending here; are they here? MS. FILSON: One public petition asked to be continued because she didn't know -- CHAIRMAN COYLE: Okay. MS. FILSON: And the other one I'm not sure of, 6B. MR. MUDD: That was 6B, Jo Presi Brisson had to leave and asked to continue that item, and I need a vote to have that item continued by the board. CHAIRMAN COYLE: So we're going to -- COMMISSIONER COLETTA: I'll make a motion to continue Jo Preston's (sic) item there for the public petition. CHAIRMAN COYLE: Okay, I second it. All in favor, please signify -- COMMISSIONER FIALA: Is that the one that wanted to continue? MS. FILSON: Yes, ma'am, 6B. MR. MUDD: Yes, ma'am. MS. FILSON: Who made the second? CHAIRMAN COYLE: I did. Page 98 Addcnd;im To Lease Agreement fhis Lease Addendum is entered into this 2009, by and between Collier County and the Naples Zoo, Inc. day of Agenda Item No. 12B October 27, 2009 Page 144 of 149 Whereas that certain Lease Agreement dated December 12, 2005 by and between Naples Zoo, Inc. and the Trust for Public Land was assigned by a Novation Assignment of Lease Agreement by the Trust for Public Land to Collier County; and Whereas, the Trust for Public Land also conveyed fee title to Collier County of the lands subject to the afore - referenced Lease Agreement; and Whereas, Collier County and the Naples Zoo, Inc., desire to amend certain sections of said Lease Agreement; NOW, THEREFORE Collier County and the Naples Zoo, Inc. agree that the afore - referenced Lease Agreement shall be amended as follows: 1. Article 2 "Term of Lease," the first sentence of paragraph d. is amended to read: Upon two (2) years prior written notice to LESSEE, given during the lease term or any extension thereof in effect, LESSOR may, with cause, terminate this Lease Agreement. 2. Article 3 "Rent" paragraphs a, b, c, d, f and the first sentence of paragraph e. are deleted in their entirety and paragraph a. is amended to read: LESSEE hereby consents and agrees to pay as rent for the Demised Premises the sum of One Hundred Dollars ($100) per year which shall be paid in lump sum for the entire lease term or any extension thereof in effect upon thirty (30) days written notice from LESSOR. 3. Article 15 "Insurance" paragraph e. is deleted in its entirety and paragraph f. is amended to read: The above described general liability and property insurance policy(ies) shall list and continuously maintain LESSOR, as well as its Officers, employees, representatives and agents, as additional insureds thereon. The above - described fire and extended coverage insurance policy(ies) shall list and continuously maintain LESSOR as an additional insured as their interest may appear. Evidence of such insurance shall be provided to LESSOR and the Collier County Risk Management Department, 3301 East Tamiami Trail, Administration Building D, Naples, Florida 34112, for approval prior to the commencement of this Lease Agreement; and shall include a provision requiring not less than ten (10) days prior written notice to LESSOR in the event of cancellation or changes in Policy(ies) coverage. If such amounts are less than the Zoo Industry Standards or good insurance practice would require, LESSOR reserves the right to reasonably amend their insurance requirements by issuance of notice in writing to LESSEE, whereupon receipt of such notice LESSEE shall have ninety (90) days in which to obtain such additional seals. Agenda Item No. 12B October 27, 2009 Page 145 of 149 insurance. The issuer of any policy must have a certificate of authority to transact insurance business in the State of Florida and must be rated "A" or better in the most current edition of Best's Insurance Reports. Each insurer must be responsible and reputable and must have financial capacity consistent with the risks covered. Each policy must contain an endorsement to the effect that the issuer waives any claim or right to subrogation to recover wbui..st LESS`?R, its mployces, representatives and agents. 4. Article 17 "Notices" paragraph a is amended to read: a. Any notice, request, demand, instruction or other communication to be given to either party hereunder shall be in writing, sent by facsimile with automated confinnation of receipt, or by registered or certified mail, return receipt requested, postage prepaid, transmitted or addressed as follows: If to LESSOR: Collier County Manager 3301 East Tamiami Trail Naples, FL 34112 Attn: County Manager Telephone: (239)252-838') Fax No.: (239) 252 -4010 With a copy to: Collier County Attorney 3301 East Tamiami Trail Naples, FL 34112 Telephone: (239) 252 -8400 Fax No.: (239) 252 -6300 If to LESSEE Naples Zoo, Inc. 1590 Goodlette -Frank Road Naples, FL 34102 Attn: President of Naples Zoo, Inc. Board Telephone: (239) 262 -5409, x. 107 Fax No.: (239) 262 -6866 With a copy to: Naples Zoo, Inc. 1590 Goodlette -Frank Road Naples, FL 34102 Attn: President of Naples Zoo, Inc. Board Telephone: (239) 262 -5409, x. 107 Fax No.: (239) 262 -6866 IN WITNESS WHEREOF. the parties hereto have hereunder set forth their hands and Page 2 of 3 Agenda Item No. 12B October 27, 2009 Page 146 of 149 AS TO LESSOR: LESSOR: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA ATTEST By Donna Fiala, Chairman Title: Date: , 2009 Dwight E. Brock, Clerk AS TO LESSEE: LESSEE: NAPLES ZOO, INC., a Florida not - for - profit Corporation FIRST WITNESS (signature) By: _ (print name of first witness) Name: Title: Date: 32009 SECOND WITNESS (signature) (print name of second witness) Page 3 of 3 Agenda Item No. 12B October 27, 2009 `n L Page 147 of 149 'T0 U e u n � FIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT entered into this day of 2009 by and between COLLIER COUNTY, A POLITICAL SUBDIVISION OF THE STtiT C. I'LORIDA, whose mailing address is 3301 East Tamiami Trail, Naples, Florida 34112, hereinafter referred to as "LESSOR," and NAPLES ZOO, INC., a Florida non - profit corporation, exempt from taxation under Section 501(c )(3) of the Internal Revenue Code, whose mailing address is 1590 Goodlette -Frank Road, Naples, Florida 34104, hereinafter referred to as "LESSEE ". WITNESSETH WHEREAS, the Trust for Public Land, a California non - profit corporation and Naples "Zoo, Inc., a Florida non - profit corporation, have previously entered into Lease Agreement dated December 12, 2005 ( "Lease Agreement "); and WHEREAS, the Trust for Public Land and the Board of County Commissioners of Collier County, Florida have previously entered into Novation Assignment of Lease Agreement dated December 19, 2005 ( "Assignment of Lease "), the legal effect being an assumption by the County of all rights and obligations of the Trust for Public Land under the Lease Agreement; and WHEREAS, the Board of County Commissioners of Collier County, Florida as the Lessor and Naples Zoo, Inc. as the Lessee are desirous of amending Article 3 of the Lease Agreement; and NOW THEREFORE, in consideration of the covenants and agreements provided within Lease Agreement and Novation Assignment of Lease Agreement and Ten Dollars ($10.00) and other valuable consideration, the Lease Agreement is amended as follows: 1. Article 3 of the Lease Amendment shall be replaced with the following: The LESSEE agrees to pay the LESSOR the sum of $1.00 per annum, in advance, for each year of the term. 2. Except as expressly provided herein, Lease Agreement remains in full force and effect according to the terms and conditions contained therein and in the Novation Assignment of Lease Agreement. IN WITNESS WHEREOF, the LESSOR and LESSEE have executed this First Amendment to Lease Agreement the day and year first above written. AS TO THE LESSOR: ATTEST: DWIGHT E. BROCK, Clerk , Deputy Clerk AS TO LESSEE: Witness Signature Print Name: Witness Signature Print Name: Agenda Item No. 12B October 27, 2009 Page 148 of 149 BOARD OF i;GUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA Ley: DONNA FIALA, CHAIRMAN NAPLES ZOO, INC., a Florida not- for - profit corporation BY: DAVID TETZLAFF, EXECUTIVE DIRECTOR Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney Agenda Item No. 12B October 27, 2009 Page 149 of 149 Naples Zoo - Rents Summary as of 10/16/2009 Rents - $19,625 per month started December 2005 - 1/2 month rent Posts to Parks Capital Project Fund 306 Parks Capita! Projects Cost Lnrter 1�F ?cn Gordon Greenway Park Project 80065 Receipts in FY 2006 204,754.17 Receipts in FY 2007 215,875.00 Receipts in FY 2008 235,500.00 Receipts in FY 2009 247,129.00 Receipts in FY 2010 19,625.00 (Oct Rent) Total Rents Received 922,883.17 Expenditures in FY 2006 Expenditures in FY 2007 55,524.50 Expenditures in FY 2008 42,780.00 Expenditures in FY 2009 103,601.41 Expenditures in FY 2010 - Total Expenditures 201,905.91 F: \Budget Files 10 \Parks & Rec \Zoo Rents - Gordon Greenway Summary.xlsx 10/21/2009