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Agenda 11/10/2009 Item #16G 2 Agenda Item No. 16G2 November 10, 2009 Page 1 of 20 E,XT':' ".. ; ;',. 'l,'\.'- ...." f _ ., ", .... ",:. ......' ....,~~. ......-.... . ".,...')1 ,... r,f "R' ' 1:'....,'; I. t I~~ ',\" Ii .'~ ~.. ~........ ~I....... Jl....... .JL Recommendation for the Community R~:!cvelopment Agency (CRA,) to approve and execute the attached Lease with Auto Pride Cnllision Centers, Inc., a Florida Corporation permitting them to continue the operation flf the existing business on CRA owned property located at 1911 E. Tamiami Trail in the Gateway Mini-Triangle for an annual rent of $128,084.00 for the first year and $150,000.00 or five (5%) of the Lessee's gross sales for each successive year. OBJECTIVE: Recommendation for the Community Redevelopment Agency (CRA) to approve and execute the attached Lease with Auto Pride Collision Centers, Inc., a Florida Corporation permitting them to continue the operation of the existing business on CRA owned property located at 1911 E. Tamiami Trail in the Gateway Mini-Triangle for an annual rent of $128,084,00 for the first year and $150,000.00 or five (5%) of the Lessee's !,:rross sales for each succeSSIve year. CONSIDERATION: On July 28, 2009 the COlmnunity Redevelopment Agency approved the purchase of six (6) commercial properties located within the Gateway mini-triangle. Four (4) of the properties have tenants and existing leases. The lease for one of the tenants (Auto Pride Collision Centers, Inc.) operating as an automobile and body shop is scheduled to expire on December 31, 2009 and the tenant desires to renew the lease and continue operating on the site, The Bayshore/Gateway Triangle eRA staff and Auto Pride Collisions Centers, Inc. negotiated a new lease having an effective date of January 1, 2010. The proposed lease term is for three (3) years beginning January 1, 2010 to December 31, 2012 with a provision for one (1) two (2) year lease extension. The annual rent for the first year shall be $128,084,00 payable in twelve (12) equal monthly installments of$10,673.66, plus sales tax, if applicable, and $150,000.00 or five (5%) percent of the Lessee's gross sales for each successive year, plus sales tax if applicable, minus real estate taxes and assessments, general and special, if any against the Premises. Auto Pride Collision Centers, Inc., acknowledges that the site is slated for future redevelopment and provisions regarding the same have been stipulated in the Lease. FISCAL IMPACT: The revenues fi.-om the Lease will be utilized to service a portion of the Bayshore/Gateway Triangle CRA debt. LEGAL CONSIDERATIONS: The attached Lease has been reviewed and approved by the Office of the County Attorney for content and legal sufficiency. - JBW GROWTH MANAGEMENT: There is no impact on the County's long-range planning effort. RECOMMENDATION: That the Collier County Community Redevelopment Agency Board approve the Lease with Auto Pride Collisions Centers, Inc., and authorize the Chairman to execute same. .- PREPARED BY: Jean Jourdan, Project Manager Bayshore/Gateway Triangle eRA Item Number: Item Summary': Meeting Date: Aaenda Item No. 16G2 ~ November 10. 2009 Page 2 of 20 COLT TKR COTTNTY BliARD :Jr :;Gtif~ ;-./ :>Jw~i~~S~K;~~~ERS 16G2 Rccorr.mcncL:::tion fo~ l!~C COrr.1T:~::;:ty Rcd~velcpmcnt !\gency (CRA) to approve and execute the attached Lease with Auto Pride Collision Centers, Inc., a Florida Corpormion permitting them to continue the operation of the existing business on CRA owned property located at 1911 E. Tamiami Trail in the Gateway lv1iniTriangle for an annual rent of $128,08400 for the first yem a;-;d $i GO,80C .OC .j; f:ve (5%) of the Lessees gross sales for each successive year. 11/10/2009 9:00:00 AIv1 Prepared By Jean Jourdan Community Redevelopment Agency Project Manager Date Bayshore-Gateway Redevelopment 10/27/20093:39:11 PM Approved By Jerlll J<>urddf1 Community Redevelopment Agency Project Manager Dale Bayshore-Gateway Redevelopment 10/27/20092:53 PM Approved By David Jackson Community Redevelopment Agency Executive Director Date Sayshore-Gateway Redevelopment 10/27/20094:47 PM Approved By OMS Coordinator County Manager's Office OMS Coordinator Date Office of Management & Budget 10/28/2009 1 :54 PM Approved By Jennifer White County Attorney Assistant County Attorney Date County Attorney Office 11/2/2009 1: 11 PM Approved By Jeff Klatzkow County Attorney County Attorney Date County Attorney Office 11/3120099:48 AM Approved By Mark Isackson County Manager's Office Budget Analyst Date Office of Management & Budget 11/3/2009 10:21 AM ~1_" 110.\ A __~_ -1_"T'__....\r:'______......\ 1 '"'0 1\.1____.__1-_..1 () ,"",,1\1\r\\1 r r'I""""TC1I''l\.T'T' At. 01"'h.T'r'\ A \ 1 rf'"1 ^ TnT\ 111,.1 /"'tf\f\l\ Agenda item No. 16G2 November 10, 2009 Page 3 of 20 LEASE THIS LEASE (the "Lease") is made as of the 1st day of January, 2010, between Collier County Community Redevelopment Agency, more fully ident1fied in Section Ll as LESSOR (the "LESSOR"), and Auto Pride Collision Centers, Inc., a Florida corporation, or its assigns, more fully identified in Section ] .2, as LESSEE (the ''LESSEE'') Demise. In consideration of the undertakmgs of the parties contained herein, LESSOR leases to LESSEE, and LESSEE leases from LESSOR, the premises described in Sections lJ. and l. (the "Premises"), on the following terms and conditions: 1. Basic Lease Provisions: This Section contains or refers to certain basic provisions of this Lease (the "Basic Lease Provisions"). Other Sections of this Lease explain, define and are to be read in conjunction with the Basic Lease Provisions. 1.1 LESSOR: (a) Collier County Community Redevelopment Agency 3301 Tamiami Trail East Naples, Florida, 34112 (b) Make Payments to: Collier County Community Redevelopment Agency 4069 Bayshore Drive Naples, Florida 34112 1.2 LESSEE: Auto Pride Collision Centers, Inc. 5626 Enterprise Pkwy. Fort Myers, FI 33901 1.3 Premises: (See Section l.): (a) Address: 1911 E. Tamiami Trail Naples, Florida 34112 (b) A legal description of the real property is attached hereto as Exhibit "".LA.." . (c) Use: Automobile repair and body shop/together with any other zoning approved use Cd) LESSEE'S Proportionate Share of Premises: 100% 1.4 Term: (a) Primary Term (See Section U): 3 years, from January 1,2010 to December 3 L 2012 Agenda Item No. 1682 November 10, 2009 Page 4 of 20 (b) Option to Extend (See Section 3.2): i. Extension Term: One (1) Two (2) year renewal option from January I, 2013 to December 31, 2014. 11. Exercise Date(s): Six (6) months prior to the expiration of the Primary Term (as hereinafter defined), as tollows: On or before July 1,2012 for the extension. 1.5 Rm!: (a) Primary Term (See Section 1): During the first year of the Term of the Lease the annual rent shall be $128,084.00 payable in twelve (12) equal monthly installments of $10,673.66, plus sales tax, if applicable, During each successive Term of the Lease the annual ren~ payable in twelve (12) equal monthly installments, shall be the greater of $150,000.00 per year or five (5%) percent of LESSEE'S gross sales for the preceding twelve (12) month period as described in Section 4 below, plus sales tax if applicable, minus real estate taxes and assessments, general and special, if any, against the Premises. (b) Extension Term (See Section 1,): The annual rent, payable in twelve (12) equal monthly installments, shall be the greater of $ 150,000,{)O or five (5%) percent of LESSEE'S gross sales for the preceding twelve (12) month period as described in Section 4 below, plus sales tax, if applicable, minus real estate taxes and assessments, general and special, if any, against the Premises. 1.6 Rent Commencement Date (See Section 1): January 1,2010 1.7 LESSEE Possession Date: January 1,2010 1.8 Insurance (See Section lLl): Casualty Insurance: (a) Amount: To be determined by LESSOR in it sole discretion with no obligation to insure the premises. (b) Insuring Party: LESSOR Liability Insurance: (c) Amount: Bodily Injury: $2,000,000, Property Damage: $250,000 2 ,L'.,genda !tenl No. 16G2 November 10, 2009 Page 5 of 20 2. Premises: During the Term of this Lease (a~ d.efmLd m. SectIOn 3.3), the Premises shall consist of the exclusive use of the LESSOR'S buildings. iF1d adjoining exterior loading, parking and drive areas. 3. Term: Primary Term: The primary term of this Lease shall be for the period specified in Section 1A (the "Primary Term") unless this Lease shall be earlier terminated as hereinafter provided. Extension Tem1s: LESSEE shall have the right and option to extend the Primary Term for extension term as set forth in Section lA (the "Extension Terms"), upon the same terms and conditions of this Lease, except as otherwise provided in Section 1.5, LESSEE shall deliver to LESSOR notice of its election so to extend the Primary Term on or before the respective Exercise Date set forth in Section L1. Failure to timely exercise shall cause a waiver of LESSEE'S right to Extend the Term of the Lease, except as provided for herein. The parties acknowledge that LESSOR intends to sell the real property to a third party for redevelopment purposes, In order to facilitate LESSOR'S goal, LESSEE shall on or before thirty (30) days following the commencement of the Extension Tem1 meet with LESSOR to determine its progress toward the redevelopment goal and the parties agree as follows: (a) In the event LESSOR has detennined that a sale of the real property is likely to occur within the foreseeable future and LESSOR desires the LESSEE to vacate the real property on or before the end of the Extension Term then LESSOR shall provide this information to LESSEE in writing and LESSEE shall immediately commence to locate a new premises from which to conduct its business in Collier County, Florida. LESSEE shall be required to vacate the leased premises on the temlination date of the Extension Term but, in the event LESSEE locates alternate premises before the termination date of the Extension T errn and LESSEE is prepared to move to such alternate premises then LESSEE may proceed to vacate the premises prior to the Tennination Date of the Extension Term and LESSEE shall have no liability for rents due and payable after LESSEE vacates the property and LESSEE shall receive a refund of any prepaid rent. (b) In the event LESSOR has been unable to detem1ine that a sale of the real property is hkely to occur within the foreseeable future and LESSOR desires the LESSEE to remain as a LESSEE then LESSOR shall provide this information to LESSEE in writing and LESSOR and LESSEE shall sign an amendment to this Lease granting LESSEE an additional Extension Term for a period of two (2) years subject to the terms and conditions of this lease. The terms and conditions of this Paragraph 3 shall apply to any additional Extension Term of this Lease. '< Agenda Item 1\10. 16G2 November 10, 2009 Page 6 of 20 Term of Ihi!:> 1 ,ease: The Primary Term and the Extension Term sometimes shall be referred to collectively hereinafter as the "Term of this Lease". 4. Rent: Manner of Payment: During the first year of the Term of this Lease, LESSEE shall pay annual rent in the amount $128,084.00, payable in monthly installments of $10,673.66.00 per month, plus applicable sales tax, if any. On or before December 1, during each year of the Term of this Lease, LESSEE shall deliver to LESSOR copies of its sales tax returns for the preceding twelve (12) month period prior to December 1 (sales tax returns are due on the 20th day of the month following the month of sale and therefore returns will be provided for the period November through October for the preceding the twelve (12) month period). A copy of LESSEE'S sales tax return for the month of August, 2009, is attached as Exhibit B. Commencing on January 1,2011, and on January 1 of each subsequent year during the Term of the Lease the annual rent shall be adjusted to the greater of$150,000 per year or five (5%) percent of the gross sales for the preceding twelve (12) month period as calculated from the monthly sales tax reports, plus applicable sales tax, if any, payable in twelve (12) equal monthly installments, minus real estate taxes and assessments, general and special, if any, against the Premises. As an example if the gross sales of LESSEE for the period November 1,2009, through October 31, 2010, are $4,000,000.00 then commencing January 1, 2011, the annual rent payable by LESSEE shall be $200,000.00, payable in monthly installments of $16,666.67, plus applicable sales tax, if any. Each monthly installment of Rent shall be due and payable on the 1 st day of the month and mailed to LESSOR at the address set forth in Section U (b), or at such other address as LESSOR may designate in writing at any time or from time to time, in monthly installments as set forth in Section 12 (the "Rent"). Such monthly installments of Rent shall be payable in advance on or before the Rent Commencement Date as set forth in Section ~(the "Rent Commencement Date") and on or before the first business day of each calendar month thereafter. Rent for partial months at the inception of the termination of the Lease shall be prorated. In the event that LESSEE, at its sole cost and expense, expands the facility, the Rent, as applicable hereunder from time to time, shall not be increased because of such expansion. Upon execution of this Lease, LESSEE shall prepay one month's rent which shall be applied to the first month of the Lease and shall pay all additional rent as herein defined. 5. Real Estate Taxes and Assessments: Payment: During the Term of this Lease, as identified in Section lA, LESSEE shall pay within (30) days of receipt, LESSEE'S Proportionate Share as identified in Section 1.3(d) of all real estate taxes and assessments, general and special, if any, against the Premises. ("Taxes and Assessments") 6. Utilities: During the Term of this Lease, LESSEE shall pay for all utility services consumed by LESSEE upon the Premises, including without limitation gas and electricity, sanitary and storm sewer, water and telephone services. To the extent that any utility services supplied to the Premises are billed directly to LESSOR, LESSEE shall reimburse LESSOR, within thirty (30) days after LESSOR'S delivery to LESSEE of an invoice therefore, for that 4 lc"oenda item No. 16G2 ~ November 10. 2009 Page 7 of 20 portion of such utility services whIch 1S attnbuted direct1y to LESSEE'S use of the particular utility service. IF LESSOR and LESSEE fail to agree as to the appropriate method for determining such portion, then LESSOR, at its sole cost and expense, shall effect the separate metering of all utility services supplied to the Premises. 7. Possession of Premises: Deliverv of Possession: Condition: LESSOR shall deliver possession of the Premises to LESSEE on the LESSEE Possession Date. LESSEE accepts the Premises 111 an "'as-IS' condition without any obligation of LESSOR to repmr any defects, or make any repairs, alternations or improvements. 8. LESSEE Improvements: Except as to structural improvements, demolition, substantial alterations effecting structural design, exposure of the interior during improvements, and substantial site plan changes effecting landscaping for which LESSOR'S or LESSOR'S mortgagee written consent is required, LESSEE, at its sole cost and expense, shall have the right but shall not be obligated prior to and during the Term of this Lease to improve, alter and renovate the Premises in any manner which LESSEE deems necessary or desirable to make the same fit and suitable for the conduct of its business operations. LESSEE shall perform all work described in this Section subject to the standards set forth in Section 17.1(b). Unless otherwise agreed in writing by the parties and subject to Section 2-below, any improvements, alterations and renovations to the Premises by LESSEE pursuant to this Section shall be promptly restored by the LESSEE to the condition existing immediately prior to LESSEE'S possession, subject to normal wear and tear, damage by fire, explosion or other casualty, upon the expiration or earlier termination ofthis Lease. 9. Trade Fixtures~ Personal Property: LESSEE, at its sole cost and expense, shall have the right, without LESSOR'S consent, but shall not be obligated during the Term of this Lease to install, use, replace, substitute and remove its trade fixtures and personal property such as, without limitation, telephone, teletype and other equipment, machinery, conveyor systems, racking, task lights, office furniture, and office trailers. Upon the expiration of the Term of this Lease or the earlier termination of this Lease, LESSEE shall have the right to remove its trade fixtures and personal property from the Premises. 10. Maintenance and Repairs bv LESSEE: LESSEE, as its sole coast and expense, during the Term of this Lease shan keep the Premises in a clean and orderly condition and, shall perf 01111: (i) any maintenance and repairs to the Premises occasioned by the negligence or misconduct of LESSEE or its invitees and licensees, and (ii) maintenance and replacement of the landscaping, all required maintenance, replacement and repairs to windows, pedestrian and overhead doors and all routine maintenance, repair and replacement of the mechanical and utility systems, including, but not limited to; heating, ventilating, air conditioning, lighting, electrical, plumbing, gas, water supply, sanitary systems, and communications lines (sometimes collectively referred to herein as the ("Mechanical and Utili!v Svstems"), including without limitation, any necessary changing of fan belts, light bulbs, washers, gaskets, replacing of \vindow glass and the cleaning of and necessary adjustments to the furnace system and (iii) all other maintenance, replacement and repairs to the structure, roof and the exterior of the Premises in which the interior portions of the Premises shan be located, including, without limitation, the roof and roof membranes, exterior walls, the interior wall separating the office area from the 5 Agenda Item No. 16G2 November 10. 2009 Page 8 of 20 body shop area, floors, foundations, supports, skylights and roof vents, drains, and downspouts, the substructure, all periodic repaving and any patching and pothole maintenance of the yard, parkiug, drive and other hard-surfaced areas comprising a portion of the Premises, together with curbs and walkways. If LESSEE fails to perform its maintenance and repair obligations within fifteen (I5) days after LESSOR'S delivery to LESSEE of notice of the need for any such maintenance and repairs, then LESSOR shall have the right, but not the obligation, upon delivery of three (3) business days' notice to LESSEE, to perform all of part of such maintenance and repairs, at the sole cost and expense of LESSEE, and LESSEE shall reimburse LESSOR for such costs and expenses within thirty (30) days after LESSOR's delivery to LESSEE of an invoice therefore. 11. Insurance: 11.1 Casualty Insurance: At all times during the Term of this Lease, the insuring party named in Section 1.8(b), at its sole cost and expense, may, in its sole discretion, cause the Premises to be fully and adequately insured with a customary policy of fire and extended coverage insurance (including flooding, vandalism, damage from sink holes (if available), malicious mischief and special extended perils or all risk) in an amount not less than the full replacement cost of the Premises, with a standard inflation guard endorsement or, in the event the parties have agreed upon a fixed amount of insurance, with a fixed amount endorsement, 11.2 Public Liability Insurance: At all times during the Term of this Lease, the LESSEE shall maintain in full force and effect a public liability insurance policy for the Premises in amounts not less than those set forth in Section 1.8 (c). Such insurance policy shall name the LESSOR as an additional insured, as its interest may appear with respect to the Premises. 11.3 Certificates: Any insuring party shall, upon LESSEE Possession Date, provide an insured party with adequate evidence of the continued existence of applicable insurance coverage by certificate(s) of insurance. Each such certificate shall contain an agreement by the insurer that such insurance coverage shall not be modified or canceled without delivery of at least thirty (30) days written notice to the insured party. 11.4 Mutual Waiver of Subrogation: Nothing in this Lease shall be construed so as to authorized or permit any insurer of LESSOR or LESSEE to be subrogated to any right of LESSOR or LESSEE against the other party arising under this Lease. LESSOR and LESSEE each hereby release the other to the extent of any perils to be insured against under Section 11.1 of this Lease only, whether or not such insurance has actually been secured, and to the extent of insurance coverage for any loss or damage caused by any such casualty, even if such incidents shall be brought about by the fault or negligence of either party. All insurance policies to be provided under Section ill by either LESSOR or LESSEE shall contain a provision that they are not invalidated by the foregoing waiver. 12. Dama2es and Termination 12.1 Damage and Restoration: In the event that the Premises shall be damaged or destroyed by fire, explosion or other casualty, or by any risk require to be insured against 6 A';)6nda Item No. 16G2 November 10, 2009 Page 9 of 20 pursuant to Section III or at law, LESSEE promptly shall deliver to LESSOR notice thereof. Unless terminated pursuant to Section 12.2, this Lease shall remain in full force and effect, and LESSEE, at its sole cost and expense, but with the right to use insurance proceeds, if any, to the extent of the LESSOR'S interest therein and to the extent not to exceed the amount of actual proceeds, may exercise good faith and diligent efforts promptly to repair the damage or destruction and restore the Premises to substantially that condition existing immediately prior to such damage or destruction. Until the completion of LESSEE'S repair and restoration pursuant to this Section, LESSEE'S obllgation to pay Kent and other anlOunts payable by LESSEE hereunder shall be abated as of the date of the damage or destruction in proportion to the extent that the value of the premises for the use and occupancy thereof by LESSEE for the conduct of its business operations shall be reduced, as the parties shall agree, but in the absence of such agreement, as determined by the dispute procedure under Section 32 hereof. 12.2 Rig,hts of Termination: LESSOR'S and LESSEE'S respective rights to terminate this Lease upon the occurrence of certain damage or destruction shall be governed as follows: (a) If the Premises shall be damaged or destroyed to the extent of more than ten percent (10%) of the full replacement cost thereof, then either LESSOR or LESSEE may elect to terminate this Lease by delivery of notice to the other within thirty (30) days after the date LESSOR or LESSEE first learned of such damage or destruction; or (b) If repair and restoration of any such damage or destruction cannot reasonably be completed within one hundred twenty (120) days after the date of notice to the LESSOR of the damage or destruction then LESSEE may elect to ternlinate this Lease by delivery of notice to LESSOR within thirty (30) days after the date of such damage or destruction; and (c) Upon delivery of any notice pursuant to Section 12.2 (a) or 12.2 (b), and the payment or assignment to LESSOR of insurance proceeds to the extent of LESSOR'S interest therein, this Lease shall terminate as of the date of the damage or destruction unless otherwise provided in such notice, and LESSEE shall have no further liabilities or obligations hereunder other than to pay Rent accrued hereunder as of the date of such termination. 13. Eminent Domain: 13.1 Repair and Restoration: In the event that all or any portion of the Premises shall be taken or threatened to be taken under the power of eminent domain or settlement in lieu thereof for any public or quasi-public use, LESSOR promptly shall deliver to LESSEE notice thereof. Unless tem,inated pursuant to Section 13.2, this Lease shall remain in full force and effect, and LESSOR, as its sole cost and expense, shall exercise good faith and diligent efforts promptly to repair the damage and restore the Premises so as to constitute the remaining portion thereof a complete architectural unit, EXCEPT as provided for in Section 12.] and to the extent such damage is covered by insurance. If LESSEE remains in occupancy of the Premises, LESSOR shall exercise such repair and restoration efforts in a manner so as not to interfere unreasonably or materially with the use and occupancy of the Premises by LESSEE -r I Agenda Item No. 16G2 November 10, 2009 Page 10 of 20 for the conduct of its business operatiOns. Ufitil the completion of LESSOR'S repair and restoration pursuant to this Section, LESSEE'S obligation to pay Rent and other amounts payable by LESSEE hereunder shall be abated as of the effective date of taking of the Premises or portion thereof by the public or quasi-public body in proportion to the extent that the value of the Premises for the use and occupancy thereof by LESSEE for the conduct of its business operations shall be reduced, as the parties shall agree, but in the absence of such agreement, as determined by arbitration under Section 32 hereof. 13.2 Rights of Temlination: LESSEE shall have the right to terminate this Lease upon the Occurrence of a taking or a threatened taking under the power of eminent domain or settlement in lieu thereof if, as a result thereof, the Premises no longer shall be fit and suitable for the use and occupancy thereof by LESSEE for the conduct of its business operations by reason of a material reduction of more than thirty-five percent (35%) of the Premises, in which event LESSEE may elect to terminate the Lease be delivery of notice to LESSOR within thirty (30) days of the date that LESSEE receives written notice of the date on which possession of the Premises or portion thereof shall be required by the public at quasi-public body. If LESSEE gives LESSOR notice that LESSEE elects to terminate this Lease, this Lease shall terminate as of the date on which such possession shall be required by the public or quasi-public body, and LESSEE shall have no further liabilities or obligations hereunder other than to pay Rent accrued hereunder as of such date of termination. 14. Default: Remedies: 14.1 LESSEE'S Default: The following events shall be deemed to be events of default by LESSEE under this Lease: (a) LESSEE shall fail to pay any installment of the rent herein reserved when due, or any other payment or reimbursement to LESSOR required herein when due, and such failure shall continue for a period of fifteen (15) days from the date such payment was due following written notice thereofby LESSOR to LESSEE. (b) LESSEE shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors. (c) LESSEE shall file a petition under any section of chapter of the National Bankruptcy Code, as amended, or under any similar law or statute of the United States of any state thereof; or an order for relief shall be entered against LESSEE in any proceedings filed against LESSEE thereunder. (d) assets of LESSEE. A receiver or trustee shall be appointed for all or substantially all of the (e) LESSEE shall fail to discharge any lien placed upon the Premises III violation of Section 33. 8 Agenda Item No. 1682 November 10, 2009 Page 11 of 20 (f) LESSEE Sh8.~; fail to comply with any tcrm, provision or covenant of this Lease (other than the foregoing in this Section 14) and shall not cure such failure within thirty (30) days after written notice thereof to LESSEE. 14.2 LESSOR'S Remedies: (a) Upon the occurrence of any such events of default described in Section 14.1 hereof, LESSOR shall have the optIOn to pursue anyone or more of the following remedies or any other remedy available at law or equity after three (3) days written notice to LESSEE: (1) Terminate this Lease, in which event LESSEE shall immediately surrender the Premises to LESSOR and if LESSEE fails so to do, LESSOR may without prejudice to any other remedy which it may have for possession or arrearage in rent, enter upon and take possession of the Premises and expel or remove LESSEE and any other person who may be occupying such Premises or any party thereof without being liable for prosecution of any claim for damages therefore. (2) Enter upon and take possession of Premises and expel or remove LESSEE and any other person who may be occupying such Premises or any part hereof without being liable for prosecution or any claim for damages therefore, and relet the Premises and receive the rent therefore, all without tem1inating the Lease. (3) terminating the Lease. Alter all locks and other security devices at the Premises without (4) Relet the Premises, or any part of them, for the account of LESSEE for any portion or all of the remainder of the term to any LESSEE. LESSOR shall credit the rent received on the balance due from LESSEE, first to any expenses incurred because of the repossession and re-renting, including broker's commissions, next to interest, and the balance to the principal amount of the rent. LESSOR may repair or restore the Premises as provided for herein for reletting, the cost of same to be charged to LESSEE. However, in no event, shall the LESSEE be charged for improvements specific to a new LESSEE'S occupancy. (5) Collect each installment of rent or other sum due under this Lease as it becomes due or await the end of the term of this Lease and then collect all rent or other sums due hereunder. (b) In the event LESSEE fai Is to pay any installment of rent hereunder within fifteen (15) days after notice that such installment is past due, LESSEE shall pay to LESSOR a late charge in an amount equal to that charge that is charged to LESSOR for its failure to make its payment on its Mortgage(s). In any event, said late charge shall not exceed five percent (5%) of any late installment under this Lease. (c) All remedies of LESSOR are cumulative to each other and to any other remedies given by law or in equity. All rights of LESSOR on LESSEE'S default apply to an extension of this Lease. By making a payment for LESSEE or from any security deposit, LESSOR does not waive LESSEE'S default or any right LESSOR has because of the default. 9 Agenda Item No. 16G2 November 10, 2009 Page 12 of 20 15. LESSOR'S Default and LESSEE'S Remedies: I,ESSOR shall be in default of this Lease if LESSOR fails to perfonn any tenn, condition, covenant or obligation of this Lease Uti the palt of LESSOR to be perfom1ed within thirty (30) days after the date on which LESSOR receives from LESSEE notice by certified or registered mail specifically describing such failure. LESSEE may, after notice and time to cure, cure such default by LESSOR on behalf of, and at the sole cost and expense of, LESSOR, including a supervision charge of twenty percent (20%) of all costs and expenses incurred by LESSEE. LESSOR shall reimburse LESSEE for its costs and expenses in cOlmection with any such cure within thirty (30) days after LESSEE'S delivery to LESSOR of an invoice therefore, failing which LESSEE may offset such costs and expenses against any Rent and other amounts payable by LESSEE hereunder, 16. LESSOR'S Ri2ht of Entrv: Following reasonable notice to LESSEE, LESSOR may enter upon the Premises as often as LESSOR reasonably may deem necessary for the purposes of performing such maintenance and repairs as LESSOR reasonably may deem necessary or lawfully may be required to perform, inspecting the Premises, offering the Premises for lease (but only during the period which commences six (6) months prior to the expiration of the then existing Primary Term or Extension Tenn in the event that LESSEE shall not have elected further to extend the Term of this Lease) or offering the Premises for sale. During this period, LESSOR shall have the right to display "For Sale" and "For Lease" signs on the Premises. LESSOR'S right of entry shall be exercised in a manner and during reasonable hours at times such that there shall be no unreasonable or material interference with the use and occupancy of the Premises by LESSEE for the conduct of its business operations. 17. Indemnification: 17.1 LESSEE Indemnification. LESSEE agrees to indemnify and hold LESSOR harmless from and against any and all losses, damages, claims, suits actions, judgments, liabilities and expenses, including without limitation reasonable attorneys' fees (collectively, "Losses"), arising out of, or with respect to: (a) any breach of any warranty or representation or any covenant or agreement of LESSEE, under this Lease~ or (b) any injury to, or death of, persons and/or any damage to, or destruction of, property, on or about the Premises and attributable to the negligence or misconduct of LESSEE, or LESSEE'S officers, employees, agents, contractors or invitees, except for any such breach, any injury or death or any damage or destruction arising out of, or with respect to, the negligence or misconduct of LESSOR, or any of LESSOR'S officers, employees, agents, contractors or invitees, or as otherwise specifically provided in this Lease. 18. Transfers and Lease Contin2encv: 18.1 Assi!IT1ment and Subletting: LESSEE shall have the right to assign this Lease to any company that may acquire the business operations of LESSEE and may sublet all or any portion of the Premises, without the consent of LESSOR, so long as such sub LESSEE meets county zoning and occupancy requirements. However in no event, absent the written agreement of LESSOR, no assignment of this Lease or subletting of all or any portion of the Premises shall 10 I\genda Item r'~OT 16C;2 November 10, 2009 Page 13 of 20 relieve LESSEE of any of the lenTIS, conditions, covenants and obligations of this Lease on the lJart of LESSEE to be performed. 19. HoldiD!! Over: If LESSEE shall continue to occupy the Premises after the expiration of the Term of this Lease or the earlier termination of this Lease, then LESSEE shall be deemed to be occupying the Premises as a LESSEE from month-to-month, subject to the terms and conditions of the Lease; provided, however, that either party shall have the right to temlinate such month-to-month tenancy upon delivery of thirty (30) days notice to the other and the rent shall be one hundred twenty-five percent (125%) of the rent charged in the last full month before expiration of the term of this Lease or earlier temlination of the Lease. 20. Quiet Eniovment: 20.1 LESSOR 'S_ Covenant. LESSOR covenants and agrees that LESSEE shall have the peaceful and quiet possession and enjoyment of the Premises (subject to all mortgages and other matters to which this Lease, is or shall become, subordinate in accordance with the provisions of Section 21) for the conduct of its business operations during the Term of this Lease, without hindrance by LESSOR or any party whatsoever. 20.2 LESSEE'S Option to Ternlinate: LESSEE may terminate this Lease if LESSOR materially breaches LESSOR'S covenant of quiet possession and enjoyment as set forth in Section 21 subject further to the notice and cure periods and provisions permitted in this Lease. 21. Subordination and Attornment/Estoppel: (a) LESSEE covenants and agrees on the terms and conditions provided in this Section, that this Lease shall be subordinate to any institutional mortgage or deed of trust that now or hereafter shall encumber the Premises, provided that each named mortgagee or beneficiary shall execute and deliver to LESSEE a non-disturbance, attornment and subordination agreement stating (in addition to other reasonable terms, if any) in substance the (i) if LESSEE is not in default hereunder, the right of possession of LESSEE to the Premises shall not be affected or disturbed by any mortgagee in the exercise of any of its rights under a mortgage or the note secured thereby, and any sale of the Premises pursuant to the exercise of any rights and remedies under a mortgage or otherwise shall be made subject to LESSEE'S right of possession to the Premises under this Lease and LESSEE'S Option to Purchase; and (ii) LESSEE shall attorn to any mortgagee or purchase at a foreclosure sale (a "Purchaser") upon acquisition of title to the Premises by a mortgagee or Purchaser and notice to LESSEE therefore, and this Lease shall continue in full force and effect between such mortgagee or Purchaser. Upon LESSEE'S receipt and approval of such non-disturbance/attornment agreement from a mortgagee or beneficiary from time to time, LESSEE covenants and agrees to attorn to such mortgagee or beneficiary upon foreclosure. (b) In the event that estoppel certificates now or hereafter may required by any mortgagee or beneficiary of any mortgage or deed of tmst, respectively, encumbering the Premises, LESSEE further covenants and agrees to execute certificates containing the substance 1 1 Agenda Itam No. 16G2 November 10, 2009 Page 14 of 20 of the following statements (together with other I easonable te1TI1S, if any): (i) that the copy of the Lease attached to the certificate is a true and complete copy of the Lease and there are no amendments, modifications or alterations of the Lease, except as stated; (ii) that the Premises required to be furnished under the Lease have been completed in accordance therewith, the date on which LESSEE accepted possession of such Premises and that LESSEE now occupies the same; (iii) that LESSEE began paying monthly installments of rent under the Lease on a given date and no such installment had been paid more than one month in advance; and (iv) that the Lease is in full force and effect, and, except as noted, there exists, to LESSEE'S knowledge, no defense or offset to enforcement of the Lease by LESSOR, and, to LESSEE'S knowledge, LESSOR is not in default under the Lease. 22. Surrender of Premises: Upon the expiration of the Tenn of this Lease or the earlier termination of this Lease, LESSEE shall deliver up and surrender the Premises, to LESSOR, in as good order and condition as upon the LESSEE Possession Date, subject to LESSEE'S improvements, alterations and renovations to the Premises, n01TI1al wear and tear, damage by fire, explosion or other casualty, repairs and restoration for which LESSEE shall not be responsible hereunder and LESSEE'S removal of its trade fixtures. 23. Notices~ Computation of Time: For the purposes of all notices and communications between the parties, the addresses of LESSOR and LESSEE shall be as follows: LESSOR: At the address shown in Section U (b). LESSEE: At the address shown in Section g. Any notices and other communications to be delivered by either party to the other pursuant to this Lease shall be in writing and shall be deemed delivered as follows, except as otherwise specifically provided in this Lease: upon confimled receipt of such delivery by the party delivering notice or upon confi1TI1ed receipt of such delivery by telecopier transmission, overnight courier service of mailing with retum receipt. Except as othetwise specifically provided herein, in the computation of any period of time which shall be required or permitted hereunder or under any law for any notice or other communication or for the perfonllance of any term, condition, covenant or obligation, the day from which such period runs shall be excluded and the last day of such period shall be included unless it is a Saturday, Sunday or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a Saturday, Sunday or legal holiday. 24. Entire A2reement~ Amendments: This Lease contains the entire agreement between the parties, and no promise, representation, warranty, covenant, agreement or understanding not specifically set forth in this Lease shall be binding upon, or inure to the benefit of, either party. This Lease may not be amended, altered, modified or supplemented in any manner except by an instrument in writing duly executed by the parties. 25. Governin2 Law~ Interpretation: This Lease shall be construed and enforced in accordance with the laws of the state of Florida. The fact that this Lease shall have been prepared by the attomey for either LESSOR or LESSEE shall not be used to construe or interpret 12 Agenda item No. 16G2 November 10, 2009 Page 15 of 20 this Lease for or against either party; the partlt;S InLt:nu LlJai the provisions of this Lease shall be given their fair meaning and no court shan .::onstrue thi~ Lease more stringently against one party than against the other. 26. Authoritv~ Bindin2 Effect: If LESSOR or LESSEE shall be a corporation, trust or general or limited partnership, eaeh indivIdual executing this lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of such entity. The provisions of th15 lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, executors, administrators, personal and legal representatives, successors and assigns. 27. ~o Waver: The failure of LESSOR or LESSEE to insist upon strict performance of any of the tern1s, conditions covenants and obligations contained in this Lease shall not be deemed a waiver of any fights Of remedies for any subsequent breach or default in the terms, conditions, covenants and obligations herein contained. 28. Si2DS: LESSEE shall have exclusive sign rights for the Premises, exterior and interior, and shall have the right to erect and display signs on the Premise and such other areas of the Premises as LESSEE reasonably may request, subject only to compliance with applicable laws, ordinances and requirements of the governmental authorities with competent jurisdiction. 29. Section Headin2s: The Section headings hereof are intended for convenience and reference purposes only and shall not be used to construe or interpret this Lease. 30. Severability: If any provision of this Lease shall be determined by any court to be invalid, illegal or unenforceable to any extent, then the remainder of this Lease shall not be affected, and this Lease shall be construed as if the invalid, illegal or unenforceable provision had never been contained in this Lease. 31. Counterparts: This Lease may be executed in two (2) or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instmment. 32. Dispute procedure: In the event of a dispute under this Agreement, the parties shall first use the County's then-current Altemative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the tenns of this Agreement, said remedy being cumulative with any and all other remedy available to the parties for the enforcement of this Agreement. 33. Mechanic's Liens and LESSEE'S Personal Property Taxes: (a) LESSEE shall have no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind the interest of LESSOR in the Premises or to set ofT the rentals payable hereunder against any claim in favor of any person dealing with LESSEE, including those who may furnish materials to perform labor for any construction or repairs. LESSEE covenants and agrees that it will payor cause to be paid 1.) Agenda Item t~o. 1682 November 10. 2009 Page '16 of 20 aH sums legally due and payable by It 011 account of any labor perfonned or materials furnished in connection with work perforn1ed by LESSEE on the Premises (LESSEE is not responsible or liable for sums which represent an obligation of LESSOR under this Lease) on which any lien is or can be validly and legally asserted against the Premises or the improvements thereon. LESSEE will save and hold LESSOR hannless from any and all loss cost or expenses based on or arising out of asserted claims or liens against the leasehold estate or against the right, title and interest of the LESSOR in the Premises or under the terms of this Lease, if such asserted claims or liens are a result from, through or under LESSEE and in such event, LESSEE agrees to give LESSOR immediate written notice of the placing of any lien or encumbrance against the Premises. (b) LESSEE shall be liable for and promptly pay when due all taxes levied or assessed against personal property, furniture, or fixtures placed by LESSEE in the Premises, If any such taxes for which LESSEE is liable are levied or assessed against LESSOR or LESSOR'S property and if LESSOR elects to pay the same or if the assessed value of LESSOR'S property is increased by inclusion of personal property, furniture or fixtures Placed by LESSEE in the Premises, and LESSOR elects to pay the taxes based on such increase, LESSEE shall pay the LESSOR upon demand that part of such taxes. 34. following: RADON GAS: As required by Section 404.056, Florida Statute, LESSEE is notified of the Radon is a naturally occurring radioactive gas that, when it has accumulated in a Building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 14 ,c,genda item No. 16G2 November 10, 2009 Page 17 of 20 EXHIBIT "A" FOLIO #77510240008 Lots 5 through 11, inclusive, of Tnangle Lake, according to the map or piat thereof recorded in Plat Book 4, Page 38, of the Public Records of Collier County, Florida, Less and excepting there from that portion thereof previously conveyed to the State of Road Department of the State of Florida by deed of conveyance recorded in Deed Book 16, Pages 163 and 164, of the Public Records of Collier County, Florida. Less the following described parcel: Those portions of Lots 5 and 6, Triangle Lake, a subdivision in Section 11, Township 50 South, Range 25 East, as per plat thereof recorded in Plat Book 4, Page 38, Public Records of Collier County Florida, being described as follm.vs: Commence at the northwest corner of said Lot 6; thence along the west hne and southerly extension of said Lot 6, south 00 degrees 33' 46" East, 245.26 feet to the northerly existing right of way line of State Road 90 (US 41) (per Section 0301 0-2116) for a Point of Beginning; thence along said southerly extension and west line North 00 degrees 33'46" West, 24.82 feet to the beginning of a curve concave southwesterly; thence along the arc of said curve the right, having a radius of 11,529.16 feet, a central angle of 00 degrees 47' 18.3", an arc of 158.65 feet, the chord tor which bears South 53 degrees 53'54" East to the east line of said Lot 5 and the end of said curve; thence along said east line and southerly extension South 37 degrees 59'11" West 20.01 feet to said northerly existing right of way line and the beginning of a curve concave southwesterly; thence along said northerly existing right of way line, the arc of said curve to the left, having a radius of 11,509.16 feet. a central angle of 00 degree 42'45.9", an arc length of 143.17 feet, the chord for which bears North 53 degree 51 '48": West to the end of said curve and the Point of beginning. 15 Agenda Item No. 1682 November 10,2009 Page 18 of 20 iN WITNESS WHEREOF, the pal1ies hereto have set forth their hands and seals. AS TO LESSOR: DATED: ATTEST: DWIGHT E. BROCK, Clerk COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY , Deputy Clerk BY: JIM COLETTA, Chairman o AUTO PRIDE COLLISION CENTERS, INC., BY:~Y ~ ~~/- J EPH FORMICA IT : President AS TO LESSEE: S signat}:lr~ u rot tJ. Jr!0J ~ b:fi~ (print name) /. ~ ~SS (signatur~ ~,//k w~ ~ (print name) A~d as to f3 and legal SUffiCienCY,: ~~ ~~*-. Jenni B. White - Assistant County Attorney 16 "EXHIBIT A" SITE THE PREMISES PLAN AND TENANT'S DEPICTING THE MULTI-TENANT EXCLUSIVE AREA ~0~cElRf1?J\1,No. 16G2 November 10, 2009 Page 19 of 20 AutoPride Leased Premises ~; ~ , ~J.:;;'t [] ~~. . :"I:~~'-I .~i.~,\r:fF...r 0 . ~ ~~"' . ~jl- i ~~l - Foilo NU~bor 7751C240008 ~I -., Name: CQLlICR C::JUNTY I. COMMUNITY ."'... 5treeW &IName: 1936 DAVIS BLVD 'iI legal Doscriptlon: TRIANGLE LAKE 1'. .'. Jill.OTS 5.1~ I.ESS TIIAT PORTION OF ~::...., LOTS 5 & 6 UESC IN ORDER OF TAKING ASE # 94.2112 DOT , 'If' PARCEL 100 . ,~1 Sl1'~t "'k,nt~ F"fetl> SU~dj'V'.IOA'I A<j' .1... XJO'lli l1'lch U/~lnl J\1,.dlll. 200n 1.<: rl:.Erj Bu .:!lIng Fo'-'tpr111l'o I e'T.' COU"" @200<1 Collier County Property I\pp'a~ser Whll.c the Collier :;O;,Jn~y Propeny ,\ppfl.liSCr .~ corrml\lpd to p(o\lidmg l'le mos~ i:lr:curalc llf1d 'JP-\o-dalc Inlorr:i.Glion, no wi'lrrarllCS express-cd or Implied are provided fOI the '-ala tlcrf'l[". Its u~c. or lIs iO\NprOlBll0fl 11 tt P :i/ma pS. co 11 ierappraiser. com/wcbma p/mapprin t. aspx ?ti tlc= Au to Pri deO/o20 Leased(~o20... I 10/27 i2009 Florida Department Of Revenue . Sales Tax E'I.\4\ ~\T 6 TO: 2636757 P t/l 7-\genda Item ~~o. 16(;~ Nove1~i~ SEP.28-2009 12: 46P FR()1:AUTO PRIDE 23~:.1?93-4666 St8I8 of .fIorida Depanment of Revenue OCR Home I LogOut Of Ell" I Print P.v. StIItII of Flolidl tex RMurn Help tl21/1OOt 1:08:'" PM E.T. Account'l AF""4701201 DR.t' C.ertlft;funtbef' ~-8013747062 Review information before submItting! CoNectIon Period 1_ 0812009 t 1.11 TAMIMIII TAL a NAPLES. fL 341124a4 AUTO PRIOI OF CAPE CORAL IMe MI. TERI!IA OLIVER IUt ENTERPRISE PKW\' FOItT.mut1 PL 3M01.a1Z DeIIlt DIt8: 91S0I2G0I Mount for Ch.ck: '191'.0' Bank RoutinG Number: 017011711 SaNe Account Number: -.....-, Ita elnk AGClount Type: Ch.elring COfPOI"8..lPeraonll: Corpot'M I MNby authorld the ~ of Revenue to prOCHI thll ACH tllnuc;tIon end to debit the bInk .ccount ldentHltd lIbove. I ~c.nd the,. .....y b. ..rvtc. cha.... ....... 0" Iny ..neac;tto... not honolM by mv b8r1k. 1tgMtufW: T&JItI!8A PhonI .......ber: 231""3-1301) EM.,I AUTOPRtDE28EARTMLIMK.NEl ~: .......--....--..-- ....,P._..--.. . . .., ~_. .. . . ..,...-,....... FIDI* \ 0-'" I. e-p1 .... s, T_._ 4. T.. COhClM A. ...... $ lS8010.19 . 86".63 . U!)3~O.56 I 8961.03 a ,.....,.,.,.... . G.OO . 0.00 c.~~' 0.00 . 0.00 . 0.00 . 0.00 o T-"M R.... . 0.00 . 0.00 I 0.00 . 0,00 B. FolIa6.'-' \IGIUlWlQ I 0.00 . 0.00 . 0.00 . 0.00 ..T____..T..~ . ..~~O..- . f T_T_Dull . .. LMI Ell ,... PdIOOA c:r- . ....... Est. fa Dw ~ -. 10. AmClUlll 0lHI " ,,",C__II- 11 AlII PIIIlIIIW \1 ""',..... You have chosen not to donate your collection ellowance to education. U, _Ill 0IIll \11M ".will ...__.a_ .~ ...... ... '-. 11/t1. ....A/MlIIll..~. o.w IIIIllO ~IACoIMftl1l3) tl\4ll. Ollw l_lIIalliMollr* NOT ............._- "'C_ '* ,1lCQ. AIMlI*.......... hrIP.. _ QIIlA;lI4!Nf - Yaw ClIW\l'f .... RJIlf.......... (:oWllII\ ~ liM. T_ ~Ol DItU.....,. .......- ~ (lIlduIIllIf1ll CellMl'll4) ,.. TWltI~Z-"'CMbI (ilcIlIMlIl1\\JMO'l 11<11I. . IIIIll . II(Gl. . \ lid) 1 ,..1 . 8961. OJ 0.00 89151. 03 13911.42 1399.42 89061. 03 0.00 0.00 0.00 11961,03 . . . . 0.00 0.00 0.00 0.00 0.00 _"_...........,...""~