Item G05BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 19, 2009 Division: Growth Management
Bulk Item: Yes x No
Department:
Staff Contact Person/Phone #: Andrew O. Trivette
Ext. 2517
AGENDA ITEM WORDING:
Approval of Ground Lessor Estoppel and Attornment Agreement by Monroe County and Sea Grape II,
Ltd. in favor of Neighborhood Lending Partners of South Florida Inc.
ITEM BACKGROUND:
The 99 year lease from Monroe County to Sea Grape II, Ltd. was approved on August 20, 2008. This
approval allows the long term lessee to obtain financing for the project of twenty-eight (28) units.
PREVIOUS RELEVANT BOCC ACTION:
August 15, 2007 — BOCC approved 99 year lease for Phase I with Sea Grape Apartments, LTD for 56
units.
August 20, 2008 — Approval of 99 year lease for Phase II with Sea Grape II, LTD for 28 units.
August 20, 2008 — Approval of Grant of Easement and Right of Use Agreement (Access Easement)
August 20, 2008 - Approval of Resolution No. 247-2008 accepting 2 parcels of land from the Monroe
County Land Authority for Phase II of the Sea Grape project
August 20, 2008 — BOCC approved a Similar Estoppel Agreement for Phase I with Sea Grape
Apartments, LTD
November 19, 2008 — Approval of Grant of Easement and Right of Use Agreement (Reciprocal Access
and Recreational Easement)
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval
TOTAL COST: n/a INDIRECT COST:
DIFFERENTIAL OF LOCAL PREFERENCE:
BUDGETED: Yes No
COST TO COUNTY: n/a SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No x AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing Risk Management _
DOCUMENTATION: Included x Not Required
DISPOSITION: AGENDA ITEM #
Revised 7/09
THIS INSTRUMENT PREPARED
BY AND RETURN TO:
Bernardo A. Portuondo, Esq.
Liebler, Gonzalez & Portuondo, P.A.
44 West Flagler Street
Courthouse Tower, 25'' Floor
Miami, Florida 33130
GROUND LESSOR ESTOPPEL AND ATTORNMENT AGREEMENT
THIS GROUND LESSOR ESTOPPEL AND ATTORNMENT AGREEMENT (this
"Agreement") is made as of August , 2009, by MONROE COUNTY, a political subdivision
of the State of Florida ("Ground Lessor") and SEA GRAPE II, LTD., a Florida limited
partnership ("Ground Lessee") in favor of NEIGHBORHOOD LENDING PARTNERS OF
SOUTH FLORIDA, INC., a Florida not -for -profit corporation ("Lender").
RECITALS
A. Ground Lessor and Ground Lessee have entered into that certain Ground Lease
dated August 20, 2008 (the "Ground Lease") covering certain real property located in Monroe
County, Florida, and more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference (the "Property"). Ground Lessee is the current holder of all right, title
and interest of the lessee under the Ground Lease.
B. Ground Lessee has applied to Lender for a loan in the principal amount of
$1,000,000.00 (the "Loan"). The Loan will be secured by a leasehold mortgage (the
"Mortgage") from Ground Lessee in favor of Lender concerning Ground Lessee's leasehold
interest in the Property. As a condition precedent to Lender agreeing to make the Loan to
Ground Lessee, Lender has required Ground Lessor and Ground Lessee to enter into this
Agreement.
NOW THEREFORE, for good and adequate consideration, the receipt and sufficiency of
which are hereby acknowledged, Ground Lessor and Ground Lessee hereby certify and agree in
favor and for the benefit of Lender as follows:
1. The Ground Lease is in full force and effect and is a valid and subsisting demise
of the Property pursuant to the terms described therein. All conditions precedent to the
commencement of the term of the Ground Lease have been satisfied or unconditionally waived.
The term of the Ground Lease ends ninety-nine (99) years after the commencement date, and
Ground Lessee does not have any options to extend the Ground Lease. Ground Lessee is the
current and sole holder of the lessee's interest under the Ground Lease. All references to the
Ground Lease in this Agreement shall extend to any amendments, restatements or modifications
of the Ground Lease.
2. A true, complete and correct copy of the Ground Lease and all amendments
thereto have been delivered to Lender. The Ground Lease covers only the Property and includes
no other real or personal property.
3. Neither Ground Lessor nor, to the knowledge of Ground Lessor, Ground Lessee is
in default under the Ground Lease, and no default exists under the Ground Lease, nor does any
condition exist which, with notice or the passage of time or both, would constitute a default,
breach, failure of condition or event of default thereunder, and Ground Lessee has, as of the date
hereof, complied with all of the terms and conditions of the Ground Lease. All rents, additional
rents and other sums due and payable under the Ground Lease have been paid in full, and neither
Ground Lessee nor Ground Lessor has commenced any action or given or received any notice for
the purposes of terminating the Ground Lease.
4. Ground Lessor consents to the Loan, the Mortgage, this Agreement and all of the
other Loan Documents and agrees that Lender and/or any assignee of Lender's interest in the
Loan will have all of the rights, privileges and benefits accruing to a leasehold mortgagee under
the Ground Lease, including without limitation the right to receive notices sent to the Ground
Lessee, the right to effect cure of a Ground Lessee default of the Ground Lease and the right to
receive casualty insurance proceeds or condemnation awards. No approval of any party not a
signatory to this Agreement is required in connection with the encumbrance of the Ground
Lease. This Agreement shall constitute notice to Ground Lessor of the Loan pursuant to
Section 15.01 of the Ground Lease and Lender's interest therein as required under the Ground
Lease. Ground Lessee shall provide to Ground Lessor, a copy of the recorded Mortgage within
thirty (30) days of its recording.
5. Ground Lessor agrees that it shall not encumber all or any part of its interest in the
fee estate unless such encumbrance is expressly subordinate to the Ground Lessee's interest in
the leasehold estate and in the Ground Lease and in the Loan.
6. Lender and any person designated by such party shall have, and are hereby
granted, the right to enter upon the Property at any time and from time to time for the purpose of
taking any cure action as described herein or in the Ground Lease.
7. Ground Lessor shall deliver to Ground Lessee a copy of any petition filed by or
against it under the Bankruptcy Code. Ground Lessee shall promptly deliver to Ground Lessor,
following receipt, copies of any and all notices, summonses, pleadings, applications and other
documents received by Ground Lessee in connection with any bankruptcy petition and any
proceedings relating thereto.
8. The rejection of the Ground Lease by a trustee -in -bankruptcy of any Ground
Lessor under the Ground Lease shall not affect or impair this Agreement or Lender's rights under
the Ground Lease or Ground Lessee's possession of the premises. This Agreement specifically
attaches to Ground Lessee's right to use and possession of the Property if a trustee- in -bankruptcy
of the Ground Lessor rejects any such Ground Lessor's Ground Lease. Ground Lessee shall not
treat the Ground Lease as terminated by reason of the bankruptcy of the Ground Lessor or under
Subsection 365(h)(1) of the Bankruptcy Code without Lender's prior written consent, and any
such termination without Lender's prior written consent shall be deemed to be null, void and of
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no force or effect. If Ground Lessee remains in possession of the Land after a trustee -in -
bankruptcy of the Ground Lessor rejects the Ground Lease, Ground Lessee shall be obligated to
obtain Lender's prior written consent to any offsets of the rent payable thereto asserted by
Ground Lessee under Section 365(h)(2) of the Bankruptcy Code. Lender shall have the right to
proceed in its own name or in the name of Ground Lessee in respect of any claim, suit, action or
proceeding relating to the rejection of the Ground Lease, including without limitation the right to
file and prosecute, to the exclusion of Ground Lessee, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in respect to any fee owner under the
Bankruptcy Code, and all of such rights are hereby assigned by Ground Lessee to Lender. Any
amounts received by Lender as damages arising out of the rejection of the Ground Lease as
aforesaid shall be applied by Lender in such order of priority as Lender determines in its sole and
absolute discretion, to the obligations of Ground Lessee under the Loan. Ground Lessee hereby
authorizes Lender to file any uniform commercial code financing statement and all such
additional instruments, agreements and other documents as may at any time hereafter be required
by Ground Lessee to effectuate and carry out the assignment made pursuant to this paragraph.
9. Lender will have the right to appear in and participate in all proceedings,
including any arbitration proceedings, which could affect Lender's use or possession of the
Property or the provisions of the Ground Lease or which relate to the leasehold under the Ground
Lease or any sublease. Ground Lessee shall promptly provide notice to Lender of any such
proceeding.
10. Ground Lessor and Ground Lessee represent and warrant to Lender that no lien or
encumbrance (whether for borrowed money or otherwise) exists on the fee interest or exists on
any other interest in the Property which, if foreclosed or realized upon, could defeat, terminate or
otherwise extinguish the Ground Lease.
11. Ground Lessee has no right of first refusal or other right to purchase the fee
interest in the Property from the Ground Lessor.
12. Ground Lessor acknowledges and agrees that, upon any assignment, including by
foreclosure or deed in lieu thereof, (a) any assignee or transferee of Ground Lessee's leasehold
interest in the Property shall only be liable for acts or omissions occurring during the period of
such assignee's or transferee's ownership of the leasehold, and (b) Ground Lessee and its
successors or assigns, including without limitation any leasehold mortgagee, any purchaser at a
foreclosure sale, any recipient of a deed in -lieu, or any transferee thereof, shall be released from
all liability under the Ground Lease except for such liability which accrued during the ownership
of the leasehold by such successor ground lessee or such successor or assign thereof.
13. Ground Lessor acknowledges and agrees that the only rights that Ground Lessor
has to acquire or terminate Ground Lessee's interest in the Property and the improvements
thereon are set forth in the Ground Lease, and that the Ground Lessor has no separate right to
acquire the Ground Lessee's interest in the Property or the improvements thereon under any
agreement, instrument, or other document binding on the Ground Lessee or the Property with or
for the benefit of the Ground Lessor. For the purposes of this paragraph, the terms "Ground
Lessor" and "Ground Lessee" mean Ground Lessor or Ground Lessee, whether in their respective
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capacities as Ground Lessor and Ground Lessee under the Ground Lease or in any other
capacity.
14. This Agreement may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original and all of which together shall constitute but one
and the same Agreement.
15. The covenants and agreements herein contained shall bind and inure to the benefit
of the parties hereto and their successors and assigns.
16. This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida without giving effect to the conflict of law principles of said State.
17. All notices required or permitted hereunder shall be in writing and shall be given
to the parties as follows:
Lender: Neighborhood Lending Partners of South Florida, Inc.
3615 West Spruce Street
Tampa, Florida 33607
Ground Lessee: Sea Grape II, Ltd.
2950 SW 27t' Avenue, Suite 200
Coconut Grove, Florida 33133
Ground Lessor: Monroe County
1100 Simonton Street
Key West, Florida 33040
Attention: Monroe County Administrator, Roman Gastesi
Attention: Suzanne Hutton
Any such notices shall be either (a) sent by certified mail, return receipt requested, in which case
notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the
U.S. mail, or (b) sent by a nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) business day after deposit with such courier; or (c) served personally,
in which case notice shall be deemed given on the date of such service. The above addresses
may be changed by written notice to the other party, provided that no notice of a change of
address shall be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any notice shall not be
deemed a failure to give notice.
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IN WITNESS WHEREOF, Ground Lessor and Ground Lessee have executed this
Agreement to be effective as of the date first stated above.
MONROE COUNTY, a political subdivision of the
State of Florida
By:
Name:
Title:
ATTEST:
Danny L. Kolhage, Clerk
Deputy Clerk
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me on August _, 2009, by
of Monroe County, a political subdivision of the State
of Florida, on behalf of said corporation.
My commission expires:
Notary Public in and for the State of Florida
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SEA GRAPE II, LTD., a Florida limited partnership
By: CDG Sea Grape II, LLC, a Florida limited
company, as i neral partner
By:
M thew Greer, as its Manager
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
This instrument was acknowledged before me on July .�l 2009, by Matthew Greer, as
Manager of CDG Sea Grape II, LLC, a Florida limited liability company, as general partner of
Sea Grape II, Ltd., a Florida limited partnership, on behalf of the company and the partnership.
He is either personally known to me or has produced a driver's license
as identification.
Personally Known OR Produced Identification
Type of Identification Produced
SUSANNE WiLLIS
Notary Public - Stale of Florida
rint or Stamp Nalxle: 3;� • s MY Commission EzpiresAug 13, 20tt
=.; �' Commission I DD 704405
Notary Public, State of Flori , �— °r BondedThrMhNag"NolaryAssn.
My Commission Expires: 01 IN20 t
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL 1-LEASEHOLD PARCEL:
A parcel of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County,
Florida, more particularly described as follows:
Begin at the intersection of the East line of said Section 11 and the Southeasterly Right -Of -Way
line of U.S. Highway No. 1; thence South along the said East line of Section I I for 285.00 feet;
thence West for 231.55 feet; thence North 190.74 feet to the Southeasterly Right -Of -Way line of
U.S. Highway No. 1; thence North 67' 5F 00" East, along the said Southeasterly Right of way
line of U.S. Highway No. 1 f or 250.00 feet back to the Point of Beginning.
AND
A strip of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County,
Florida, more particularly described as follows:
Commencing at the intersection of the East line of said Section l I and the Southeasterly Right -
Of -Way line of U.S. Highway No. 1; thence South 67° 5P 00" West, along the Southeasterly
Right -Of -Way line, for 250.00 feet to the Point of Beginning; thence South, parallel to said East
line of Section I I for 344.62 feet; thence West for 20.00 feet; thence North 336.48 feet to said
Southeasterly Right -Of -Way line; thence North 67° 5 V 00" East, along said Southeasterly Right -
Of -Way line for 21.59 feet to the Point of Beginning.
PARCEL 2:
A parcel of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County,
Florida, more particularly described as follows:
Commence at the intersection of the East line of said Section 11 and the Southeasterly Right -Of -
Way line of U.S. Highway No. 1; thence South along the said East line of Section 11 for 859.00
feet to the Point of Beginning; thence continue South along the said East line of Section l 1 for
70.23 feet; thence West for 231.55 feet; thence North for 94.84 feet; thence East for 140.00 feet;
thence South for 24.61 feet; thence East for 91.55 feet back to the Point of Beginning.
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