HomeMy WebLinkAboutTuskawilla Retail Partners II, LLC Temporary Lease Agreement (Catalyst Debri Site) - 2021 05 26 TEMPORARY LEASE AGREEMENT
THIS TEMPORARY LEASE (this "Lease") is made and entered into as of the
day of , 2021, between TUSKAWILLA RETAIL PARTNERS II, LLC, A
FLORIDALI D LIABILITY COMPANY,AS TRUSTEE UNDER THE WSR TRUST
AGREEMENT DATED JULY 2, 2018, with a principal address of 800 Glenwood Avenue SE,
Suite H, Atlanta, GA 30316 (hereinafter referred to as "Property Owner"), and THE CITY OF
WINTER SPRINGS, FLORIDA, a Florida municipal corporation, with a principal address of
1126 East State Road 434, Winter Springs, FL 32708(hereinafter referred to as"City").
WHEREAS, due to the potential damage that may be caused by a hurricane or similar
natural disaster during the 2021 hurricane season, the City desires to obtain a temporary lease of
real property for the Lease Purpose(as defined below);and
WHEREAS,the City has retained the services of contractors for the Lease Purpose; and
WHEREAS, the City is in need of an area at which contractors can perform the Lease
Purpose in the event of a hurricane or similar natural disaster; and
WHEREAS, Property Owner is the owner of real property located on SR 434 within the
City of Winter Springs, as described on Exhibit "A" attached hereto and incorporated herein by
this reference(the"Premises"); and
WHEREAS, the City has determined that the Premises will be suitable for the Lease
Purpose;and
WHEREAS, the parties desire to enter into this Lease for purposes of facilitating disaster
relief efforts within the City of Winter Springs,on and subject to the terms and conditions set forth
herein.
NOW THEREFORE,for the good and valuable consideration described herein,the receipt
and sufficiency of which is acknowledged by the parties,and the covenants and promises contained
herein,the parties hereby agree as follows:
ARTICLE I-DEFINITIONS
1.01 Definitions. The following words shall have the meaning ascribed below unless the
context clearly indicates otherwise:
A. "Article"means an article of this Lease.
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B. "Commencement Date"means the first day of the Term of this Lease which shall
be August 1,2021.
C. "Lease" means this Lease, exhibits to this Lease, and every properly executed
instrument which by its terms amends,modifies or supplements this Lease.
D. "Lease Purpose" means the establishment, operation and maintenance of a
temporary staging area at the Premises as a vegetative storm debris collection, processing and
transportation point for the use and benefit of the citizens and property owners ofthe City of Winter
Springs, Florida, in the event of a hurricane, storm event, or similar natural disaster.
E. "Premises" shall have the meaning set forth in the Recitals to this Lease.
F. "Rent" means the amount payable by City to Property Owner for the lease of the
Premises as set out in Section 4.01.
G. "Term" means the period of time set out in Section 3.01.
ARTICLE II- GRANT OF LEASE
2.01 Grant. Property Owner hereby demises and leases the Premises to City, and City hereby
leases and accepts the Premises from Property Owner, to have and to hold during the Term, for
the Lease Purpose and subject to the terms and conditions of this Lease.
2.02 Quiet Enim meat. Property Owner shall warrant and defend the City in the quiet
enjoyment and possession of the Premises during the Term, subject to the terms and conditions of
this Lease.
2.03 Revresentations, Warranties and Covenants of Property Owner and City. Property
Owner represents and warrants that it is seized with the fee simple ownership of the Premises,and
that the person executing this Lease, on behalf of Property Owner, is duly authorized to execute
this Lease. Property Owner further covenants to observe and perform all of its obligations under
this Lease. City covenants to pay the Rent when due under this Lease,and to observe and perform
all of its obligations under this Lease.
2.04 Pronerh, Owner's Access to the Premises. The Property Owner shall have access at all
reasonable times to the Premises, provided however, such access by Property Owner shall not
unreasonably interfere with the City's use of the Premises for the Lease Purpose.
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ARTICLE III-TERM AND POSSESSION
3.01 Term. The Term of this Lease shall commence on August 1, 2021 ("Commencement
Date")and terminate on December 1,2021 or at such time thereafter that the City notifies Property
Owner, in writing,that the City has completed its use of the Premises for the Lease Purpose due
to a hurricane or similar storm event that occurred during the period between August 1, 2021 and
December 1,2021. In no event shall the Term extend beyond December 31,2021 unless mutually
agreed in writing by the parties. Notwithstanding the foregoing,the City may terminate this Lease
sooner by providing written notice thereof to the Property Owner,provided the City complies with
its obligations under Section 10.01 of this Lease.
3.02 Condition of Premises. Except as otherwise specifically provided in this Lease,Property
Owner disclaims any warranty regarding the condition of the Premises, whether patent or latent,
and City shall accept the Premises in its"as is"condition,including,without limitation,any defects
which exist on the Commencement Date. The City acknowledges that the Premises are now in
suitable condition for the Lease Purpose.
ARTICLE IV-RENT
4.01 Rent. On or before the Commencement Date, the City shall pay to Property Owner, as
rent for the Premises,the lump sum of Ten&No/100 Dollars ($10.00),payable in advance.
ARTICLE V-USE OF PREMISES
5.01 Generali . The Premises shall be used and occupied by the City and its disaster relief
contractors,and their respective subcontractors and agents,solely for the Lease Purpose. The City
and its contractors shall be permitted to locate a portable trailer(s)or building on the Premises and
shall also be permitted to park and store equipment, supplies, goods and machinery that are
necessary to complete the City's operations on the Premises for the Lease Purpose. To the extent
severe weather events are reasonably foreseeable and to the extent possible,the City shall attempt
to provide three days' written or verbal notice to the Property Owner of its intent to use the
Premises for the Lease Purpose. Further, at any time during the Term and without prior notice to
Property Owner,the City shall be permitted to enter onto and inspect the Premises to determine if
any maintenance or repairs would be necessary to install or locate trailers, equipment, supplies,
goods or machinery for the Lease Purpose.
ARTICLE VI-MAINTENANCE, REPAIR,ALTERATIONS AND
IMPROVEMENTS BY CITY; UTILITIES
6.01 Condition of Premises. The City and its contractors shall maintain the Premises and all
improvements therein in their condition as they exist on the Commencement Date,other than such
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wear and tear as would occur in the ordinary course(i.e.,in the absence of this Lease),at the City's
sole cost.
6.02 Alterations by Citic. The City may from time to time,at the City's expense,make changes,
additions and improvements in the Premises to better adapt the same to be used in accordance with
the Lease Purpose;provided that any such change,addition or improvement shall comply with the
requirements of any governmental authority having jurisdiction.
6.03 Utilities. During the City's occupancy and use of the Premises, the City may require
certain utilities on the Premises. To the extent there are existing utilities on the Premises, the
Property Owner will work with the City to allow the City to use such utilities. If no utilities are
currently available,the Property Owner will allow the City to deliver utilities to the Premises. The
cost of delivering utilities to the Premises and/or the cost of service for the utilities shall be borne
by the City, and the City shall promptly reimburse Property Owner for any such costs that are
charged to Property Owner's utility accounts.
6.04 Mowine and Tree Removal. The City shall, for the Term of this Lease, in consideration
of the use of the Premises, mow the Premises on an as-needed basis at the City's expense. In
addition, the City may remove nuisance palm trees growing under the large oak tree located
adjacent to the SR 434 right-of-way.
ARTICLE VII-INSURANCE
7.01 General Liability and Other Insurance.
(a) Prior to entering onto or using the Premises,the City shall provide Property Owner,
and shall cause its contractors to provide,as applicable,proof of insurance coverages and coverage
amounts that are acceptable to Property Owner,to include at least$2,000,000 in general liability
insurance coverage.
(b) The City currently maintains insurance with the Florida League of Cities Insurance
Trust(the"Trust"). Property Owner acknowledges that the Trust does not allow the City to name
a private entity as an additional named insured. With that said,the City will require its contractors
performing work on the Premises to maintain general liability insurance and to provide certificates
of insurance naming the City and Property Owner as additional named insureds on the contractor's
general liability policy.This subsection(b)shall survive the termination or expiration of this Lease
for a period of six(6)months.
ARTICLE VIII- INJURY TO PERSON OR PROPERTY
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The following shall survive the termination or expiration of this Lease and shall remain in effect
until the applicable statutes of limitation have lapsed:
8.01 Indemnity by City. To the extent permitted by law, the City covenants and agrees that it
will remain responsible and will indemnify and hold Property Owner and Property Owner's
officers, employees, agents, contractors, or subcontractors harmless, for any claim, loss, damage,
cost, charge or expense, up to but not exceeding the limits set forth in Section 768.28, Florida
Statutes, arising out of any breach, act, neglect or omission by the City or its officers,employees,
agents, contractors, or subcontractors during the performance of, or as required by, this Lease.
Nothing in this Lease shall alter the City's sovereign immunity established by Section 768.28,
Florida Statutes. Further, nothing in this Lease shall require the City to indemnify the Property
Owner to the extent of any claim, loss, damage, cost, charge or expense arising out of the gross
negligence or willful misconduct of Property Owner or Property Owner's officers, employees,
agents,contractors, or subcontractors during the performance of this Lease.
8.02 Liabilit< of Cit for Personal Property and Fixtures. All personal property which is
brought onto the Premises by the City or on behalf of the City, and any fixtures affixed to the
Premises by or on behalf of the City, shall be at the sole risk of the City.The Property Owner shall
not be liable to the City or any other person or entity claiming by, through or under the City for
any injury, loss, or damage to any such personal property and fixtures at said Premises, except to
the extent arising from Property Owner's own willful misconduct or gross negligence. The City
shall not bring or intentionally or willfully permit any person or entity to bring any hazardous
substances on the Premises, as the term hazardous substance is defined by state and federal
environmental laws.
ARTICLE IX-CITY ASSIGNMENT AND SUBLETTING
9.01 Assignment or Sublease bv Citr. City shall not assign this Lease or sublet the Premises
without the prior written consent of Property Owner.
ARTICLE X-TERMINATION
1.0.01 Removal of Improvements. Upon termination of the Lease, the City shall have fifteen
(15)days to remove all improvements made to the Premises,all personal property at the Premises,
and all vegetative and other storm related debris brought to the Premises or mulched at the
Premises for brought to the Premises or mulched at the Premises as part of the Lease Purpose.
During such fifteen (15)-day period, the City shall also restore the Premises to the condition that
existed at the Commencement Date,other than wear and tear as would occur in the ordinary course
(i.e., in the absence of this Lease). If the City fails to complete the removal and restoration within
this time period, the Property Owner shall have the right to remove the improvements, personal
property, and all vegetative and other storm related debris brought to the Premises and restore the
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affected Property after seven(7)days'prior written notice to the City,and the City shall reimburse
the Property Owner for the actual and reasonable costs incurred in said removal and restoration.
The reimbursement shall be made by the City within ten (10) days of receipt of a written invoice
itemizing said costs. During the seven day notice period,the City shall have the right to continue
the removal of all vegetative and other storm related debris and improvements and personal
property required by this Lease. This Section 10.01 shall survive the termination of this Lease.
ARTICLE XI-TRANSFERS BY PROPERTY OWNER
11.01 Sale, ConVei'ance and Assignment. Nothing in this Lease shall restrict the right of the
Property Owner to sell, convey, assign,mortgage or otherwise deal with the Premises or the right
of Property Owner to assign its interest in this Lease subject only to the rights of City under this
Lease.
11.02 Subordination. This Lease is and shall be subject and subordinate in all respects to any
and all mortgages and deeds of trust now or hereafter placed on the Premises,and to all renewals,
modifications, consolidations,replacements and extensions thereof.
ARTICLE XII- NOTICES
12.01 Notices. All notices, demands, requests, instructions, approvals, and claims of any type
hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive
mail for the below listed individuals,all to the following individuals at the following locations:
TO THE CITY:
Mr. Shawn Boyle,City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, Fl. 32708-2799
407-327-5957(Phone)
TO PROPERTY OWNER:
Tuskawilla Retail Partners Il,LLC, as Trustee
c/o Catalyst Development Partners
800 Glenwood Avenue SE, Suite H
Atlanta, GA 30316
Attention: Robert Meyer
With a copy to:
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Nelson Mullins Riley& Scarborough LLP
Atlantic Station
201 17" Street NW, Suite 1700
Atlanta, GA 30363
Attention: Eric R. Wilensky, Esq.
Notice shall be deemed to have been given and received on the date the notice is physically
received, if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid,
then notice shall be deemed to have been given three (3)business days after deposited in the U.S.
mail addressed in the manner set forth above.Any party hereto, by giving notice in the manner set
forth herein, may unilaterally change the name of the person to whom notice is to be given or the
address at which notice is to be received.
ARTICLE XIII- DEFAULT
13.01 Events of Default: Remedies. An event of default shall occur whenever:
A. Any party fails to observe, perform and keep each and every one of the material
covenants, agreements, provisions, stipulations and conditions herein contained to be observed,
performed and kept by the respective party (other than payment of Rent and other charges
hereunder) and persists in such failure after seven (7) days written notice by the non-breaching
party requiring that the breaching party remedy, correct, desist or comply. However, if any such
breach would reasonably require more than seven (7) days to rectify, and the breaching party
commences rectification within seven (7) days of such notice and thereafter promptly and
effectively and continuously proceeds with the rectifications of the breach,the seven (7) day time
period may be extended by mutual written consent of the parties.
B. Upon occurrence of any event of default, the non-defaulting party shall have the
option, in addition to and not in limitation of any other remedy permitted by law or by this Lease,
to terminate this Lease by written notice to the defaulting party, in which event the City shall
immediately surrender the Premises to Property Owner and the City shall perform its obligations
under Section 10.01 of this Lease. However, if City shall fail to immediately vacate and surrender
the Premises, Property Owner may without notice and without prejudice to any other remedy
which Property Owner may have, enter upon and take possession of the Premises and expel or
remove the City and its effects without being liable to prosecution or any claim for damages.
ARTICLE XIV- MISCELLANEOUS
14.01 Relationship of Parties. Nothing contained in this Lease shall create any relationship
between the Property Owner and the City other than landlord and tenant. It is acknowledged and
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agreed that Property Owner under this Lease does not in any way or for any purpose become a
partner of the City for the Lease Purpose, or a joint venturer or a member of a joint or common
enterprise with the City.
14.02 Consent Not Unreasonable• Withheld. Except as otherwise specifically provided,
whenever consent or approval of Property Owner or City is required under the terms of this Lease,
such consent or approval shall not be unreasonably withheld or delayed. If either party withholds
any consent or approval, such party shall, on written request, deliver to the other party a written
statement giving the reasons therefor.
14.03 Applicable Law and Construction. This Lease shall be governed by and construed under
the laws of the State of Florida and its provisions shall be construed as a whole according to their
common meaning and not strictly for or against Property Owner or the City. The words Property
Owner and City shall include the plural as well as the singular.
14.04 Entire Agreement. This Lease contains the entire agreement between the parties hereto
with respect to the subject matter of this Lease.
14.05 Amendment or Modification. Unless otherwise specifically provided in this Lease, no
amendment, modification, or supplement to this Lease shall be valid or binding unless set out in
writing and executed by the parties hereto in the same manner as the execution of this Lease.
14.06 Construed Covenants and Severability. All of the provisions of this Lease are to be
construed as covenants and agreements as though the words importing such covenants and
agreements were used in each separate Article hereof. Should any provision of this Lease be or
become invalid,void,illegal or not enforceable,it shall be considered separate and severable from
the Lease and the remaining provisions shall remain in force and be binding upon the parties hereto
as though such provisions had not been included.
14.07 Successors Bound. Except as otherwise specifically provided, the covenants, terms and
conditions contained in this Lease shall apply to and bind the heirs, successors, executors,
administrators and assigns of the parties hereto.
14.08 Headings. The Article headings contained in this Lease are for convenience only and shall
in no way enlarge or limit the scope or meaning of the various and several Articles hereof.
14.09 Attorne 's Fees. In the event of any legal action or suit under this Lease,each parry shall
bear their own attorney's fees and costs. However, the party against whom any final judgment is
entered agrees to pay the prevailing party all reasonable costs, charges, and expenses, including
attorney's fees,expended or incurred in connection therewith.
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14.10 Cita Not to Allow Liens or Encumbrances. The City shall not permit to be created nor
to remain undischarged any lien,encumbrance,or charge arising out of any work of any contractor,
mechanic, laborer,or materialman which might lien or encumber the Premises for work performed
on the City's behalf on the Premises.
If any lien or notice of lien on the account of any debt of the City or its contractors,subcontractors
or suppliers shall be filed against the Premises and the City fails to discharge the lien or notice of
lien within twenty (20) days of filing, Property Owner, in addition to any other legal rights or
remedies, may, but shall not be obligated to, discharge the same by either paying the amounts
claimed to be due, or shall be entitled to defend any prosecution of an action for foreclosure of
such lien. Any amount paid by Property Owner and all costs and expenses(including reasonable
attorney's fees and interest) incurred by Property Owner in connection therewith shall be paid by
City.
14.11 Time is of Essence. The parties acknowledge and agree that time is of the essence under
this Lease.
14.12 Venue. Venue for any legal actions under this Lease shall be in Seminole County,Florida
for state court actions and Orlando, Florida for federal court actions.
14.13 Counterparts. This Lease may be executed in identical counterparts, and all such
executed counterparts shall constitute the same agreement.It shall be necessary to account for only
one such counterpart in proving this Lease.
[Signature Page Follows]
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WITNESSES: PROPERTY OWNER:
�01TUSKAWILLA RETAIL PARTNERS II,
_ LLC,A FLORIDA LIMITED LIABILITY
COMPANY,AS TRUSTEE UNDER THE
WSR TRUST AGREEMENT DATED
JULY 2,2018
By: WSR Owner, LLC, a Florida limited
liability company, its Sole Member
By: Cataly t Development Partners II,
LL , Georgia 11 ited liability
c mp y, its Man ger
By:
Name: Robert Meyer
Title: Manager
Date: `26(7,
t
WITNESSES: CITY:
CITY OF WINTER SP LORIDA
By: 6
Shawn Boyl Manager
Date:
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EXHIBIT A
Legal Description of Premises
Parcel ID: 26-20-30-5AR-OA00-007L
A PORTION OF LOT 8,BLOCK"A",D.R.MITCHELL'S SURVEY OF THE LEVY GRANT ON LAKE JESSUP,
SAID LANDS LYING IN SECTION 6,TOWNSHIP 21 SOUTH,RANGE 31 EAST,ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 5, OF THE PUBLIC RECORDS OF SEMINOLE
COUNTY,FLORIDA;BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE INTERSECTION OF STATE ROAD 434 AND TUSKAWILLA ROAD(PER FLORIDA
DEPARTMENT OF TRANSPORTATION RIGHT-OF-WAY MAP,SECTION 77070-2516,SHEET 10 OF 13,P.I.
STATION 600+32.11);THENCE RUN S38°23'34"E,A DISTANCE OF 1320.11 FEET ALONG THE BASELINE
OF SURVEY AS SHOWN ON SAID RIGHT-OF-WAY MAP;THENCE DEPARTING SAID BASELINE,RUN
N51°36'26"E,A DISTANCE OF 94.94 FEET TO A POINT ON THE NORTHEASTERLY RIGHT-OF-WAY LINE
OF THE AFORESAID STATE ROAD 434,AS SHOWN ON SAID RIGHT-OF-WAY MAP FOR THE POINT OF
BEGINNING, SAID POINT ALSO LYING UPON THE SOUTHEASTERLY RIGHT OF WAY LINE OF
MICHAEL BLAKE BOULEVARD AS RECORDED IN OFFICIAL RECORDS BOOK 7486,PAGE 138,PUBLIC
RECORDS OF SEMINOLE COUNTY FLORIDA, FOR A POINT OF BEGINNING; THENCE, DEPARTING
SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF STATE ROAD 434, RUN ALONG SAID
SOUTHEASTERLY RIGHT OF WAY LINE OF MICHAEL BLAKE BOULEVARD THE FOLLOWING
COURSES AND DISTANCES:RUN N2491 0'06"W A DISTANCE OF 48.66 FEET;THENCE RUN N3843'1 6"W
A DISTANCE OF 246.60 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE EASTERLY
HAVING A RADIUS OF 25.00 FEET; AND A CHORD BEARING OF N06°16'44"E, THENCE RUN
NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 90000'00" A
DISTANCE OF 39.27 FEET TO THE POINT OF TANGENCY; THENCE RUN N51°16'44"E A DISTANCE OF
389.87 FEET;THENCE RUN N53°37'06"E A DISTANCE OF 71.07 FEET TO THE POINT OF CURVATURE OF
A CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 15.00 FEET AND A CHORD BEARING OF
N74009'35"E; THENCE RUN EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 41004'59" A DISTANCE OF 10.76 FEET TO THE POINT OF TANGENCY; THENCE RUN
S85017'55"E A DISTANCE OF 22.68 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 15.00 FEET AND A CHORD BEARING OF S64°11'16"E;THENCE RUN
EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42013119" A
DISTANCE OF 1.1.05 FEET TO THE POINT OF TANGENCY;THENCE RUN S43004'36"E A DISTANCE OF
31.18 FEET; THENCE RUN N51024'49"E A DISTANCE OF 1.88 FEET; THENCE DEPARTING SAID
SOUTHEASTERLY RIGHT OF WAY LINE, RUN S38021'49"E A DISTANCE OF 606.04 FEET TO A POINT
ON THE NORTHWESTERLY BOUNDARY LINE OF ACQUISITION PARCEL B (RAILS TO TRAILS
CORRIDOR) AS RECORDED IN OFFICIAL RECORDS BOOK 4092, PAGE 0164, PUBLIC RECORDS OF
SEMINOLE COUNTY FLORIDA; THENCE RUN S50°31'58"W ALONG SAID NORTHWESTERLY
BOUNDARY LINE A DISTANCE OF 529.43 FEET TO A POINT ON THE AFORESAID NORTHEASTERLY
RIGHT-OF-WAY LINE OF STATE ROAD 434; THENCE DEPARTING SAID NORTHWESTERLY
BOUNDARY LINE, RUN N38°43'16"W ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE, A
DISTANCE OF 357.65 FEET TO THE POINT OF BEGINNING.
A DRAWING OF THE PREMISES APPEARS ON THE FOLLOWING PAGE FOR REFERENCE PURPOSES
ONLY.
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