Recorded Documents-for project
C.elt( of lhe
Circul c.n
Danny L. Kolhage
Phone: 305.295-3130 Fax: 305-295-3663
Memnrandum
To:
James R. "Reggie" Paros, Division
Director, Housing & Community
Development
Attn:
Stacy De Vane, Executive Assistant
From:
Isabel C. DeSantis: 1)
Deputy Clerk r
Thursday, April 19, 2007
Date:
At the Regular SOCC meeting of April 18, 2007, the following was approved:
C31) Commencement Date Agreement as part of lease between Monroe County
and Park Village, LLC.
C32) Consent to filing the Park Village Home Owner's Association Declaration
of Protective Convenants, Restrictions and Easements.
Enclosed are fully executed duplicate originals for your handling. Should you have
any questions concerning the above, please feel free to contact this office.
Copies: Finance
County Attorney
File I/"
LARRY R. ERSKINE, P.A.
ATTORNEY AT LAW
P.O. Box 4035
Key West, FL 33041
305-872-8401-phone
lerskw@aol
January 28, 2007
Danny L. Kolhage
Clerk of the Circuit Court
Monroe County, Florida
500 Whitehead Street
Key West, FL 33040
Re: Park Village LLC to Monroe County
Dear Danny:
The transaction referenced above closed recently. The seller's attorney has forwarded me the
recorded documents as well as the title policy and an endorsement I requested. Accordingly, I
enclose the following:
I. Original Warranty Deed recorded in Book 2242 at page 753;
2. Original Agreement for Sale and Purchase recorded in Book 2245 at page 843;
3. Original Lease recorded in Book 2242 at page 754;
4. Original Chicago Title Insurance Company Owner's Policy Number 7210609-
72667592; and
5. Original Chicago Title Insurance Company Endorsement to Policy Number 7210609-
72667592.
As always, it has been a pleasure to participate in this matter on behalf of the County. If you have
questions or concerns, feel free to contact me.
Sincerely,
~..re-.
Larry R. Erskine
enc.
cc: Suzanne Hutton
Thoma:>J. Willi
Reggie Paros
Deep 1606282 10/04/2006 8:29AM
- Filed & Recorded in Official Records of
MONROE COUNTY DANNY L. KOLNACE
Preoared by and return to:
Erica N.Hughes-Sterling 10/04/2005 0:29A11
Attorney at Law DEED DOC STAMP CL: PO S11,830.00
Spottswood,Spottswood&Spottswood
500 Fleming Street
Key West,FL 33040 Moen 1606282
305-294-9556 DIM 2242 PO 753
File Number: 06-366-ET
Parcel Identification No.00131170-000000,00131180-000000,00131190-000000,00131200-000000,00131210-
000000,00131220-000000,00131230-000000,00131240A00000,00131250-000000,00131260-000000,00131270-000000,
00131280-000000,00131290-000000,00131300.000000 and 0013 1 3 10-000000
[Space Above This Line For Recording Dalai
Warranty Deed
(STATUTORY FORM-SECTION 689.02,F.S.)
27th
This Indenture made this day of September, 2006 between Park Village, LLC, a Florida limited liability company
whose post office address is 201 Front Street,Suite 110,Key West, FL 33040 of the County of Monroe, State of Florida,
grantor*, and Monroe County, a political subdivision of the State of Florida whose post office address is 1100 Simonton
Street,Key West,FL 33040 of the County of Monroe,State of Florida, grantee*,
Witnesseth that said grantor, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable considerations to said grantor in hand paid by said grantee, the receipt whereof is hereby acknowledged,
has granted, bargained, and sold to the said grantee, and grantee's heirs and assigns forever, the following described land,
situate,lying and being in Monroe County,Florida,to-wit:
Lots 1-15, inclusive of Block 2 of the AMENDED PLAT LINCOLN MANOR ESTATES, Stock
Island, Monroe County,Florida, according to the Plat thereof, as recorded in Plat Book 5,Page 62,
of the Public Records of Monroe County,Florida.
Subject to taxes for 2006 and subsequent years; covenants, conditions, restrictions, easements,
reservations and limitations of record,if any.
and said grantor does hereby filly warrant the title to said land, and will defend the same against lawful claims of all persons
whomsoever.
•"Grantor"and"Grantee"arc used for singular or plural,as context requires.
In Witness Whereof,grantor has hereunto set grantor's hand and seal the day and year first above written.
n'
Signed,sealed and delivered in our presence:
Park Village,LLC,a Florida limited liability company
By: Old Town Key West Development,LTD,a Florida
1 _ limite ' iirypartnership._
'Mess Name: GHEE EDWIN . 'f I
�� (Corporate Seal)
Wines erne:
Patricia Weech
State of Florida
County of Monroe
The foregoing instrument was acknowledged before me this 27 day of September,2006 by EDWIN O.SWIFT,III,General
Partner of Old Town Ke st Development, LID, on behalf o the corporation for Park Village, LLC, a Florida limited
liability company.He/she is personally known to me or[ iwitott-• a_driver's license 4S fic 'on.
! - , t � Iv•JJ
[Notary Seal] ota- blic
Patricia Weech
PIit', "'kid:: PATRICIA WEECH Printed Name:
A ME COMMISSIONA DO 356569
EXPIRES.October 25,2006
--p2fa.';;n9''' hpr]rnTFU eda MyC^rnadssion Expires:
rvrru¢wm,wm„r
MONROE COUNTY
OFFICIAL RECORDS
Prepared by:
Jerry Coleman, Esq.
JERRY COLEMA.N, Pol.
20 I Front Street, Suite 203
Key West, Florida 33040
Doc~ 1608373 10/18/2006 12:50PM
Fjled & Recorded jn Offjcjal Records of
MONROE COUNTY DANNY L. KOLHAGE
Doc~ 1608373
Bk~ 2245 Pg~ 843
Project: PARK VILLAGE
RE Nos.: 0013 II 70-000000, 00131180-000000, 00131190-000000, 00131200-000000, 00131210-000000,
00131220-000000,00131230-000000, 00131240-000000, 00131250-000000, 00131260-000000, 00131270-000000,
00131280-000000, 00131290-000000, 00131300-000000 and 00131310-000000
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this 19..g day of July, 2006, between PARK VILLAGE, LLC as "Seller" whose
address is 20 I Front Street, Suite 210, Key West, Florida 33040, and the BOARD OF COUNTY COMMISSIONERS
FOR MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, as "Purchaser", clo Thomas
Willi, County Administrator, 1100 Simonton Street, Room 2-205, Key West, Florida 33040.
I. In considc:ration of the mutual promises contained herein, Seller hereby agree to sell to Purchaser the real
property located in Monroe County, Florida, described below, together with all improvements, easements, rights and
appurtenances ("Property"), in accordance with the provisions of this Agreement. This Agreement becomes legally
binding upon execution by the parties.
2. DESCRIPTION OF PROPERTY. The property which the Seller agrees to sell and the Purchaser agrees to buy
pursuant to the terms of this Agreement is that property situated on Stock Island, Monroe County, Florida, and more
particularly described as:
Lots 1-15, inclusive of Block 2 of the AMENDED PLAT LINCOLN MA.NOR ESTATES, Stock Island, Monroe
County, Florida, lll:cording to the Plat thereof, as recorded in Plat Book 5, Page 62, of the Public Records of Monroe
County, Florida.
RE Nos.: 00131170-000000, 00131180-000000, 00131190-000000, 00131200-000000, 00131210-000000,
00131220-000000,00131230-000000, 00131240-000000,00131250-000000,00131260-000000,00131270_000000,
00131280-000000, 00131300-000000 and 00131310-000000
3. TOTAL PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the Property is One
Million Six Hundr'ed Ninety Thousand Dollars ($1,690,000.00) which will be paid by Purchaser at closing. Seller
hereby authorizes Purchaser to issue a County check or warrant directly to an escrow agent who is authorized by law to
receive such payment, and who is acceptable to Purchaser, and to require the escrow agent to pay customary and any
other agreed Seller's expenses of sale and real estate taxes. Should Purchaser's funds not be available for any reason at
the time of closing, Purchaser or Seller may elect to tenninate this Agreement by written notice to the parties without
liability to any party. Conveyance of the Property in fee simple from Seller to Purchaser will take place at the closing, in
exchange for the payments and other considerations to be made to Seller at closing as set forth herein and in any related
agreements.
4.A. ENVIRONMENTAL SITE ASSESSMENT. Seller shall, at Seller's sole cost and expense and at least 45 days
Page 1
Doell 1608313
Bka 2245 Pga 844
prior to the closing, furnish to Purchaser an environmental site assessment of the Property which meets the standard of
practice of the American Society of Testing Materials ("ASTM"). Seller shall use the services of competent,
professional consultants with expertise in the environmental site assessing process to detennine the existence and extent,
if any, ofHazardou:s Materials on the Property. For purposes of this Agreement, "Hazardou:s Materia1s" shall mean any
hazardous or toxi<: substance, material or waste of any kind or any other substance which is regulated by any
Environmental Law (as hereinafter defined in paragraph 4.B.). The examination ofhazardou:s materials contamination
shall be performed to the standard of practice of the ASTM. For Phase I environmenta1 site assessment, such standard of
practice shall be the: ASTM Practice E 1527. If the Findings and Conclu:sions section of the assessment reports evidence
of recognized environmental conditions, then a Phase II Environmental Site Assessment shall be performed at Seller's
expeu:se to address any su:spicions raised in the Phase I environmental site assessment and to confirm the presence of
contaminants on site. The environmental site assessment(s) shall be certified to Purchaser.
4.B. HAZARDOUS MATERIALS. In the event that the environmental site assessment provided for in paragraph
4.A. COnfIrmS the presence of Hazardous Materials on the Property, Purchaser, at its sole option, may elect to tenninate
this Agreement and neither party shall have any further obligations under this Agreement. Should Purchaser elect not to
terminate this Agrc:ement, Seller shall, at his sole cost and expeu:se and prior to the closing, promptly commence and
diligently pursue any assessment, clean up and monitoring of the Property necessary to bring the Property into full
compliance with lIJlI)' and all applicable federal, state or local laws, statutes, ordinances, rules, regulations or other
governmental restrictions regulating, relating to, or imposing liability or standards of conduct concerning Hazardou:s
Materials ("Enviromnental Law"). However, should the estimated cost of clean up of Hazardous Materials exceed a sum
which is equal to I % of the Total Purchase Price as stated in paragraph 3, Seller may elect to terminate this Agreement
and no party shall bave any further obligations under this Agreement.
5. SURVEY. Seller shall, at Seller's sole cost and expense and not less than 25 business days prior to closing,
deliver to Purchaser a current boundsry survey of the Property prepared by a professional land surveyor licensed by the
State of Florida. The Survey shall be certified to Purchaser, title insurer and any other of its designees, and the date of
certification shall be within 90 days before the date of closing, unless this 90 day time period is waived by Purchaser and
by the title insurer for purposes of deleting the standard exceptions for survey matters and easements or claims of
easements not shown by the public records from the owner's title policy. If the Survey shows any encroachment on the
Property or that improvements intended to be located on the Property encroach on the land of others, the same shall be
treated as a title defect.
6. TITLE INSURANCE. Seller shall, at Seller's sole cost and expense and at least 25 bu:siness days prior to
closing, furnish to Purchaser a marketable title insurance commitment, to be followed by an owner's marketable title
insurance policy (ALTA Form "B") from a title insurwnce company, insuring marketable title to the Property in the
amount of the Purchase Price. Seller shall require that the title insurer delete the standard exceptions of such policy
referring to: (a) all prior year taxes, (b) unrecorded rights or claims of parties in possession, (c) survey matters, (d)
unrecorded easem.mts or claims of easements and (e) unrecorded mechanics' liens.
7. DEFECTS IN TITLE. If the title insurance commitment or survey furnished to Purchaser pursuant to this
Agreement discloses any defects in title which are not acceptable to Purchaser, Seller shall, within 60 days after notice
from Purchaser, remove said defects in title. Seller agrees to use diligent effort to correct the defects in title within the
time provided therefor. If defects are cured within the time prescribed herein, closing shall occur as scheduled, but shall
not be required to occur within a period shorter than that which would have been provided had there been no notice of
defect in title. If Seller is unsuccessful in removing the title defects within said time or if Seller fails to make a diligent
effort to correct th,~ title defects, Purchaser shall have the option to either: (a) accept the title as it then is with a reduction
in the Total Purchllse Price by an amount llgreed to by the parties, (b) accept the title as it then is with no reduction in the
Total Purchase Price, (c) extend the amount of time that Seller has to cure the defects in title if agreeable to Seller, or (d)
terminate this Agreement, thereupon releasing Purchaser and Seller from all further obligwtions under this Agreement.
Page 2
Doell 1608373
8kll 2245 PglI 845
8. INTEREST CONVEYED. At closing, Seller shall execute and deliver to Purchaser a statutory warranty deed,
conveying marketable title to the Property in fee simple free and clear of all liens, reservations, restrictions, easements,
leases, tenancies and other encumbrances, except for those that are of record and acceptable encumbrances in the opinion
of Purchaser and do not impair the marketability of the title to the Property.
9. PREP ARA nON OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller shall submit to
Purchaser a properlly completed and executed beneficial interest affidavit and disclosure statement as required by Section
286.23, Florida Statutes. Seller shall prepare the deed described in paragraph 8. of this Agreement, Seller's closing
statement, the title, possession and lien affidavit certified to Purchaser and title insurer in accordance with Section
627.7842, Florida Statutes, an environmental affidavit and all other documents and instruments customary to similar
transactions in Momoe County. All prepared documents shall be submitted to Purchaser for review and approval at least
25 business days prior to closing.
10. PURCHASER REVIEW FOR CLOSING. Purchaser will approve or reject in its reasonable discretion each
item required to be provided by Seller under this Agreement within 20 business days after receipt by Purchaser of all of
the required items. With the exception of title defects and Seller's related ability to cure as set forth in Paragraph 7
above, Seller will have 20 business days thereafter to cure and resubmit any rejected item to Purchaser. In the event
Seller fails to timely deliver any item, or Purchaser rejects any item after delivery, Purchaser may in its discretion extend
the closing date.
11. EXPENSES. Seller will pay the documentary revenue stamp tax and all other taxes or costs associated with the
conveyance, including the cost of recording the deed described in paragraph 8. of this Agreement and any other
recordable instrwnents which Purchaser deems necessary to assure good and marketable title to the Property, as well as
any associated leases and other instruments and related agreements.
12. TAXES AND ASSESSMENTS. All real estate taxes and assessments which are or which may become a lien
against the Proper1y shall be satisfied of record by Seller at or before closing. In the event Purchaser acquires fee title to
the Property betwl:eI\ January 1 and November 1, Seller shall, in accordance with Section 196.295, Florida Statutes,
place in escrow wilth the county tax collector an amount equal to the current taxes prorated to the date of transfer, based
upon the current assessment and millage rates on the Property. In the event Purchaser acquires fee title to the Property
on or after November 1, Seller shall pay to the county tax collector an amount equal to the taxes that are determined to
be legally due and payable by the county tax collector.
13. CLOSING PLACE AND DATE. The closing shall occur on or before 30 days after Seller provides Purchaser
with written notiCl;' that it has received all required permits, approvals and ROGO allocations to build the improvements
necessary to fulfilll Seller's lease obligations; provided, however, that if a defect exists in the title to the Property, title
commitment, Survey, environmental site assessment, or any other documents required to be provided or completed and
executed by Seller, the closing shall occur either on the original closing date or within 15 business days after receipt of
documentation cwing the defects, whichever is later. The exact date, time and place of closing and closing agent sha1l be
set by Purchaser, but the party paying for the owner's title insurance shall pay customary associated costs and shall
select title issuing agent.
14. RISK OF LOSS ANDCONDInON OF REAL PROPERTY. Seller assumes allriskofloss or damage to the
Property prior to the date of closing (and after closing pursuant to and to the extent provided by the related lease of the
property by Purchaser to Seller) and warrants that the Property shall be transferred and conveyed to the Purchaser in the
same or essentially the same condition as of the date of Seller's execution of this Agreement, ordinary wear and tear
excepted. Howev1irr, in the event the condition of the Property is altered by an act of God or other natural force beyond
the control of Selllirr, Purchaser may elect, at its sole option, to terminate this Agreement and neither party sha1l have any
further obligations under this Agreement. Seller represents and warrants that there are no parties other than Seller in
occupancy or possession of any part of the Property other than those occupants set forth in a complete liating of same to
be provided by Seller in the time in which to deliver evidence of title. Seller agrees to clean up and remove all abandoned
Page 3
Doell 1608373
Bkll 2245 PglI 846
personal property, refuse, garbage, junk, rubbish, trash and debris from the Property to the satisfaction of Purchaser
prior to closing.
15. RIGHT TO ENTER PROPERTY AND POSSESSION. Seller agrees that from the date this Agreement is
executed by Seller, Purchaser and its agents, upon reasonable notice, shall have the right to enter the Property for all
lawful purposes in connection with this Agreement and any related agreements or leases, including reasonable
inspections. Seller shall retain possession of the Property at closing pursuant to a contemporaneously executed lease.
16. ACCESS. Seller warrants that there is legal ingress and egress for the Property over public roads or valid,
recorded easements that benefit the Property.
17. DEFAULT. If either party defaults under this Agreement, the non-defaulting party may waive the default and
proceed to closing, seek specific performance, or refuse to close and elect to receive the return of any money paid, each
without waiving any action for damages, or any other remedy pennitted by law or in equity resulting from the other's
default. In conneclion with any dispute arising out of this Agreement, including without limitation litigation and appeals,
the prevailing party will be entitled to recover reasonable attorney's fees and costs. However, should Purchaser not
timely approve and allocate the ROGO allocations and permits required for Seller to fulfill its lease obligations at the
time Seller formally requests same, and after Seller has met all other appropriate development requirements, Seller may
terminate this Agreement, in its sole and absolute discretion and, in such case, shall refund to Purchaser all purchase
mouies received and Purchaser shall reconvey the subject property to Seller with the parties released from further
obligations to each other.
18. BROKERS. Seller warrants that no persons, firms, corporations or other entities are entitled to a real estate
commission or other fees as a result of this Agreement or subsequent closing, except as accurately disclosed on the
disclosure statement required in paragraph 9. Seller shall indemnifY and hold Purchaser harmless from any and all such
claims, whether disclosed or undisclosed.
19. RECORDING. This Agreement, or notice of it, and the contemporaneously executed lease may be recorded by
Purchaser in the Official records of Monroe County.
20. ASSIGNJ\.1ENT. This Agreement may not be assigned by either Party without the prior written consent of the
other Party.
2 I. TIME. Time is of essence with regard to all dates or times set forth in this Agreement.
22. SEVERABILITY. In the event any of the provisions of this Agreement are deemed to be unenforceable, the
enforceability of the remaiuing provisions of this Agreement shall not be affected.
23. SUCCESSORS IN INTEREST. Upon Seller's execution of this Agreement, Seller's heirs, legal representatives,
successors and assigns will be bound by it. Upon Purchaser's approval of this Agreement and receipt of all required
public approvals, Purchaser and Purchaser's successors and assigns will be bound by it. Whenever used, the singular
shall include the plural and one gender shall include all genders.
24. ENTIRE AGREEMENT. This Agreement is to be contingent upon the full effectiveness of related agreements,
if any, but including a related 99-year lease from Purchaser to Seller (substantially conforming to that attached hereto),
as reasonably modified to reflect any differences emanating from uuique Property Characteristics, such agreements
contaiuing the entire agreement between the parties pertaiuing to the subject matter contained therein and superseding all
prior and contemporaneous agreements, representations and understandings of the parties. No supplement, modification
or amendment to these Agreements shall be binding unless executed in writing by the parties.
Page 4
Doell 1608373
Bk~ 2245 Pg~ 847
25 . WAIVER. Failure of Purchaser to insist upon strict performance of any covenant or condition of this
Agreement, or to exercise any right herein contained, shall not be construed as a waiver or relinquishment for the future
of any such covenllJnt, condition or right; but the same shall remain in full force llJnd effect.
26. AGREEMENT EFFECTIVE. This Agreement or llJnY modification, amendment or alteration thereto, sha1l not
be effective or bindmg upon llJnY of the pllJrties hereto until it has been executed by all of the pllJrties hereto, llJnd finally
approved pursUllJnt to any legal or regulatory requirements.
27. ADDENDUM. Any addendum attached hereto that is signed by the pllJrties shall be deemed a pm of this
Agreement.
28. NOTICE. Whenever either party desires or is required to give notice unto the other, it must be given by written
notice, llJnd either dl~livered personally or mailed to the appropriate address indicated on the first page of this Agreement,
or such other addrf:ss as is designated in writing by a party to this Agreement.
29. SURVIVAL. The coveOllJnts, warrllJnties, representations, indemuities and undertakings of Seller set forth in this
Agreement shall smvive the closing, the delivery llJnd recording of the deed described in paragraph 8. of this Agreement
llJnd Local Govenunent's title to or possession of the Property.
30. CONTINGENCIES. In addition to the permit llJnd ROGO allocation contingency set forth above in
Paragraph 17, the closing of this trllJnsaction shall be contingent upon Seller's first mortgage holder consenting to a
substitution of collateral in which the mortgage on the fee simple interest is substituted with a mortgage on the leasehold
interest.
THIS IS TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF
AN ATTORNEY PRIOR TO SIGNING.
REMAINDER OF PAGE IS BLANK
Page 5
Doell 1608373
Skll 2245 PslI 848
Property Tax I.D.#: RE Nos.: 00131170-000000, 00131180-000000, 00131190-000000, 00131200-
000000, 00131210-000000, 00131220_000000,00131230-000000,00131240-000000, 00131250-000000,
00131260,.000000, 00131270-000000, 00131280-000000, 00131290-000000, 00131300-000000 and
00131310..000000AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE 1 of2
~,.. Ylili-
6. - )QJJ~J~
l1ne s
&.
STATE OF Florida )
COUNTY OF Monroe)
The fore{loing instrument was ackno
bylx:J.LII(\a.~,.f'~ /"iT . He' ersonal
(NOTARY PUBLIC)
SEAL
,...,;''C'', PATRICIA WEECH
i"";&....V'; MY COMMISSION # DO 356569
\:[ n E>:PIRES October 25, 2008
\7,1.R'(,'Ii.?$-" BMdertfhlllNOlilryputlliCUnd&fWriters
" \l'
me this,;?1~ day of ~, 2006,
me or produced as Identificabon.
~
(Printed, Typed or Stamped Name of
Notary Public)
Commission No,:
My Commission Expires:
Witltess
By:
Witltess
STATE OF Florida )
COUNTY OF Monroe)
The foregoing instrument was acknowledged before me this
, She is personally known to me or produced
day of
, 2006, by
as identification,
(NOTARY PUBLIC)
SEAL
Notary Public
(Printed, Typed or Stamped Name of
Notary Public)
Commission No,:
My Commission Expires:
Page 6
Doell 1608373
Bkll 2245 PglI 849
Property Tax I.D.#: RE Nos.: 00131170_000000,00131180-000000,00131190-000000,00131200-
000000, 00131210-000000, 00131220-000000, 00131230-000000,00131240-000000, 00131250-000000,
00131260-000000, 00131270-000000, 00131280-000000, 00131290-000000, 00131300-000000 and
001313 JO..OOOOOOAGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE 2 of2
(SEAL)
Attest: DANNY L. KOLHAGE, CLERK
By:a~/-~
DeputYCleJrk
By:
Approvoo as to Form
By:
Date:
YD. SANDERS
A SISTANT COUNTY ATTO
Page 7
Doell 1608373
Bkll 2245 PglI 850
ADDENDUM
(IMPROVEMENTS /PURCHASER)
A. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a bU11d1og l!l 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. This notice is being provided in accordance with Section 404.056(8)/
Florida Statute:;. Purchaser may, at its sole cost and expense, have the buildings that will
remain on the Property inspected and tested for radon gas or radon progeny by a qualified
professional prc)perly certified by the Florida Department of Health and Rehabilitative Services.
If radon gas O,I: radon progeny is discovered, Purchaser shall have the option to either: (a)
accept the Prop~~rty as it then is with no reduction in the Purchase Price or (b) terminate this
Agreement, thereupon releasing Purchaser and Seller from all further obligations under this
Agreement.
B. Wood Dest:royinq Orqanisms Inspection Report. Purchaser may, at its sole cost and expense,
obtain a Wood Dl!stroy~ng Organ~sms Inspect~on Report made by a state licensed pest control firm
showing the buildings that are to remain on the property to be visibly free of infestation or
damage by termites or other wood-destroying pests. If the report shows such infestation or
damage, Purchasl!r shall have the option to either: (a) accept the Property as it then is with no
reduction in the Purchase Price or (b) terminate this Agreement, thereupon releasing Purchaser
and Seller from all further obligations under this Agreement.
C. Maintenance of IInfrovements. Seller shall, if required by Purchaser, maintain the roofs,
doors, floors, steps, w~ndows, exterior walls, foundations, all other structural components,
major appliances and heating, cooling, electrical and plumbing systems on all improvements that
will remain on the Property in good working order and repair up to the date of closing.
Purchaser may, at its expense, have inspections made of said items by licensed persons dealing in
the repair and maintenance thereof. If the inspection reveals that any of the improvements that
will remain on the Property are in need of repair, Purchaser shall have the option to either:
(a) accept the Property as it then is with no reduction in the Purchase Pric~ 9r (b) terminate
this Agreement, thereupon releasing Purchaser and Seller from all further obl~ations under this
Agreement. ' ,
By:
~....-::::
-----
~
By:
SELLER
Date
~d-~
s~gne by Se ler
Date
By:
Date signed by Seller
~
Cl.IR(
Page 8
Doell 1608373
8kll 2245 PglI 851
RESOLtJTi~ttO. 273~
A DSOLlITION OF THE MONROE COUNTY BOARD OF COUNTV
COMMISSIONERS DIRECI1NG USERV ATION FOR AWARD OF
AFFORDABLE DWELLING UNrt ALLOCATIONS FOR ISPECIII'IED
PROJECl'S; 5K'nmG TERMs AND CONDmoNS
WHEREAS, the State of Florida lIIld all Wcal goVllfl'l'l"'nN in the Florida Kllys
(each subject 10 Area of CrlticaI SIlIIe Concern 1lI~ rclatiog 10 bousIDg
atlbldabiIity) rcc:ognize the need :fOr aflbrdable houslq tIaoaghout the sII:le aDd
pIIIticu1arIy ill the Florida Keys where deYeIopable IaDd fur h01lSiDg is G.Xh..-ly HmitM
and expIllllIive; 8Dd
WID:REAS, the """'"""v' of proYiding eftbldable housiDa u.l'l'udllWIios in the
Florida Keys is ODe xoquiring _Bible 8Dd 1'eSJlCll..i'l1e use of~ UDl1: 1I1""_d(lQS,
iDcludiDg impl_bdion of dfe"tive lona-iIlIm pnl8ClI'Vldion mecb..m........ aDd
WHEREAS, there bas belm a moIlltorium in place on the awmd of dwelling UDit
1I11o<-.atl0llS __ Aupst., 2005; 8Dd
WHEREAS, 1Ievem1 projec:tII 1'. ..!I.....p1Ating the dcM.lopmt:lJt of II1IbrdBble
housiDs (the "Projects") iIlvolw County fimdlDg 8DdIor propenies aod require fur
fimdl..., IIpPI'UWl 8Dd other purpo.s the h~ veritieatiou of afIOrdable ROOO
dwelling 1IIIit aDocatiaa.lICt llSides; aod
W8EREAS, the BOCC lias elIlIO:Iined the Prqjects identified bemn and
delmmined th8t eIIch is ill the ~'s inten:sIs;
NOW TIlEItEJ'ORE, BE IT RESOLVED BY TIIIi: BOARD OF COUNTY
COMMISSIONERS OF MONROE COONl'Y, ll'LORIDA aMi:
SedimIll: The Monroe Couoty Plannine ~t sbaIl dinlct aod approve
the resenatiou and IICt aside of aflbrdable ROGO alJocadcms fur ODe (I) )'llIIr &om the
date of thi. R80hdicm (shookl building JlClIDi1s tbr the reJalIed UDlIs not be issued within
ODe (1) )'ear Iioln the date of tlDlllIlIIOIutlo.n all aIIocatiOllS sbaJ1 men 110 the Couaty fur
possible aWlmI to other appIicmts) for the fullowing Projects as tblIoWll:
A. For the "Plat Vi1IIIF" project, fort)' (40) Aftb..dHbIe ROOO .1I~
B. Fot Che "IsIaDdet ViJ1aee" project, eigbty-niDB (89) affordable ROOO
allnna/ions.
C. FOI'the "OveI'!Ieas" project, fott)'-niDe (49) affordable
ROOO a1Ioadioas.
Doc" 1608373
Bk., 2245 Pg., 852
D.For~~for~~t.voftbct,.q~~sfl'1c!~~s ... . ..
CollllllWlity Housing Land Trust" Big Coppitt project, 1m (10) affordable
ROOO allocations.
E. For the four-parcel "Carlisle" project, sixty-nine (69) aflbnIable ROGO
a1Iocaliona.
- 2: P!mm;"I S1afF is hereby llUlI10riad 10 ~ C1lpeditiously permit
related:applicatioas for the abovo-r...n.........A project$.
L 1iOII3: Al:tJmJative 1lldbods of deed restrictions 88 lIpp1'OVeCI by fhe
County Attomey's office may be substitnted for fhe tlm:golng prujelets.
PASSED AND ADOPTED by tbe Board of Coaaty CoImrIi.ssioDms of Momoe
County, Florida at a MgUlar meeting held on the J.2!h. day of .Jul v
2006.
Mayor CIJarIes "Som1y" McCoy
Mayor Pro T_ Dbde Spehar
Cmnnri'lSiouer Oecqe Neugent
Cnmmlo.ooi9ner Olam Patton
Commissionet DlMd Rice
Yes
Yes
Yes
Yefl
Yes
BOARD OF COUNTY COMMISSIONERS
OF """'"'" ~. FLOIUDA
...-=:d:;:;,~~.. BY'
'~'(~l"........."'~ ' .
,.-:.~ ,.. "'/"" , \ -...; .~
,,'!J"~.'."'-~~'" Mayor "Sbmy"McCoy
/,'1' I ........";-:,.
;-. / c-- _~ "''(''~.
23 ~...\~,
,r;(~';:~\~1~,
;~1L. KOUlAGE, CLERK
.:T:<: /<'_"'f;P .
...-:' "Y
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Q CI g ."
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c:::
0.-% en '.::J
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on.
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APPROVED AS TO FORM:
County AUomey
Dote
2 MONROE COUNTY
OFFICIAL RECORDS
LEASE
Doc~ 1606283 10/04/2006 8:29AM
Filed & Recorded in Official Records of
MONROE COUNTY DANNY L. KOLHAGE
BETWEEN
Doc~ 1606283
Bk~ 2242 Pg~ 754
MONROECOUN1Y
"LESSOR"
AND
PARK VILLAGE, LLC
"LESSEE"
DATED J.7 19
,2006
C:\Documents and Settings\peters-katherine\Local Settings\Temporary Internet Files\OLK30\Park
Village - AFFORDABLE 99 YEAR LEASE v17.doc7/13/2006 3:05 PM
Doell 1606283
Bkll 2242 PIIII 755
Table of Contents
Article Title Page No.
I Definitions 3
II Demised Premises 6
III Term 7
IV Rent 7
V Non-Subordination 8
VI Payment of Taxes 9
VII Mechanics'Liens 11
VIII Governing Law, Cumulative Remedies 12
IX Indemnification of Lessor 13
X Insurance 14-
XI Insurance Premiums 18
XII Assignment 18
XIII Condemnation 25
XIV Construction 26
XV Mortgage Financing 28
XVI Default 33
XVII Repair Obligations 36
XVIII Additional Covenants of Lessee, Lessor 36
XIX Representations, Warranties of Title and Quiet 38
Enjoyment
XX Miscellaneous 38
Page 2 of 53
Doell 1606283
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GROUND LEASE AGREEMENT
THIS
/'l~day of ~
the "Lessor"
E made and entered into in Key West, Monroe County, Florida, on this
2006, by and between MONROE COUN'IY (referred to as
ARK VILLAGE, LLC (referred to as the "Lessee").
RECITALS
~J~~A' Lessor is the owner in fee simple of the property located at
iA~ ,Monroe County, Florida, and more particularly described on the
/attached Exhibit "A" (hereinafter "Property"); and,
WHEREAS, itis Lessor's intent that the Property be developed to provide affordable
housing for Monroe County; and,
WHEREAS, Lessee desires to develop the Property and build and sell at least forty
(40) affordable housing units (provided allowed by County regulations and hereinafter the
"Affordable Housing Units"), and Initial Lessee may rentjlease any Units not sold to
qualified owner-occupants; and,
WHEREAS, in order to preserve the affordability of the Units to be developed on the
Property, Lessor desires to lease the Property to Lessee for ninety-nine (99) years, subject
to the Affordable Restrictions as set forth and further defined herein; and,
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and in any contemporaneous Related Agreements between the parties,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
"Affordable Housing Unit" shall mean a residential housing unit that meets the
moderate or lesser income requirements set forth in Chapter 9.5 and any other applicable
sections of the Monroe County Land Development Regulations, as may be amended from
time to time without limitation of Lessor's complete legislative prerogatives, said
restrictions to encumber the Property for a term of ninety-nine (99) years.
"Affordable Restrictions" shall mean the affordable or employee housing regulations
as set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land
Development Regulations or County Code, as hereinafter amended, except that in no event
shall the Lessor decrease the lawfully permissible sales price for an Affordable Housing
Unit to less than the specified sales price for moderate income housing as set forth in the
Page 3 of 53
Doell 1606283
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Land Development Regulations in effect at the time of execution of this Lease where the
effect upon an owner/Sublessee/mortgagee would be to divest such person or entity of
value upon which such person reasonably and fairly relied to their detriment. The
substance of the Affordable Restrictions may be freely amended in the Lessor's legislative
discretion, particularly with respect to administrative, monitoring and enforcement
mechanisms, but any such amendment shall not materially diminish the lawfully
established and equitably vested resale value or the reasonable allenabilityof an Affordable
Housing Unit. However, Lessor may restrict Affordable Housing Unit resales and rentals to
use as "Employee Housing" as defined in the Affordable Restrictions, as amended from
time to time. Moreover, Lessor may establish in its Affordable Restrictions "means" or
"assets" criteria that limit potential buyer or rental pools. Any such amendment shall not
increase Initial Lessee's responsibilities as set forth herein. It is the intent and purpose and
shall be the effect of this Lease and any Affordable Restrictions to ensure that the
affordability of Affordable Housing Units and dedicated real property upon which they are
located is maintained and enforced such that any administrative rule, policy or
interpretation thereof, made by Lessor or its designees relating to the maximum total
amount of consideration and cost permitted to be in any way involved in a purchase or
rental transaction (including but not limited to purchase price, lease assignment fees, rents
or any other compensation given or received in or "outside" of a related transaction) shall
never exceed the affordability criteria reasonably established by Monroe County for the
dwelling units involved. In every case, the construction and interpretation of terms,
conditions and restrictions imposed by this Lease and the Affordability Restrictions shall
be made in favor of an interpretation that ensures long term affordability benefits for the
respective housing resources inure to the benefit of Monroe County, its economy and its
community character.
"Association" shall mean the condominium, homeowners or similar community
association customarily used in planned developments (including any contemplated
herein) to manage certain aspects of community or planned development living (e.g.,
infrastructure management, rules and regulations, enforcement mechanisms and
recreational facilities).
"Commencement Date" shall mean the date when Initial Lessee receives a Certificate
of Occupan,cy for the first Affordable Housing Unit.
"Demised Premises" shall mean the property leased pursuant to this Lease for
development of the Affordable Housing Units. The Demised Premises is legally described
on attached Exhibit "A" and depicted on attached Exhibit "B". Demised Premises, where
the context requires and the construction is most appropriate, shall also mean portions of
the Demised Premises and any improvements erected thereon.
"Effective Date" shall mean the date this Lease is fully executed and delivered by all
parties and the date that the Lessee shall be entitled to begin to occupy the Demised
Premises for purposes of development and construction of the Project.
Page 4 of 53
Doell 1606283
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"Initial Lessee" means PARK VILLAGE, LLC, developer of the Affordable Housing
Units.
"Lease" shall mean this lease for the creation of the Affordable Housing Units on the
Demised Premises, as may be amended from time to time by the parties. It is expressly
contemplated and intended by Lessor, as fee title holder to the Demised Premises, that any
limitations, restrictions and/or other covenants of any nature, whether established
pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of
enforceable covenants running with the land, equitable servitudes and all other cognizable
legal and equitable real property conventions so as to ensure the overall public affordable
housing purposes intended to be served, including appropriate application of cumulative
enforcement theories.
"Lease Year" shall mean the twelve (12) month period beginning on the
Commencement Date and each twelve (12) month period thereafter throughout theTerm of
this Lease.
"Lessor" means MONROE COUNTY, or its assigns or designees. Lessor as used
herein and where the context requires, shall mean an agency or party designated by the
Lessor, by written notice to all parties, to administer or enforce some or any portion of the
provisions of this Lease or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns, including the
Association created by Initial Lessee for the Unit owners/tenants, as well as the individual
Unit owners/tenants.
"Project" shall mean the required development of the Demised Premises, primarily
the required construction of Affordable Housing Units as set forth in Article XIV, but also
including related infrastructure, securing of required development approvals and permits,
financing for the construction of the Affordable Housing Units, marketing of the Affordable
Housing Units and creation of any required governing Association.
"Related Agreements" shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease and
which is recorded. Related Agreements made to apply to this Lease are setforth in Exhibit
F.
"Rent" shall mean any sum of money due to the Lessor under this Lease for any
reason. The term Rent as used herein, should not be misconstrued to preclude definition
and distinguishing of rent, rental rates and other such other terms as may be provided for
in Subleases and/or the Affordable Restrictions.
"Sale" and Sell" as used herein shall be broadly and liberally construed so as to
encompass, where contextually appropriate, any ground subleasing, sale, grant, assignment
or other conveyance of an interest in any portion of the Demised Premises authorized
pursuant to this Lease, but excluding any rental of an Affordable Housing Unit (which may
be more particularly discussed herein or in the Affordable Restrictions) and any security,
Page 5 of 53
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mortgage, note or other interest of a form and type customarily used with purchase money
or home equity loans.
"Sublease" shall mean any combination of instruments that grant, conveyor
otherwise transfer a possessory use and/or title interest to any portion of the Demised
Premises, but excluding rental of an Affordable Housing Unit (which may be more
particularly discussed herein or in the Affordable Restrictions) and any security, mortgage,
note or other interest of a form and type customarily used with purchase money or home
equity loans. The title or exact nomenclature used to describe such instruments may vary
to suit particular circumstances and shall lie within Initial Lessee's reasonable discretion
and still remain within the meaning herein intended (e.g., a "deed of improvements" mayin
a given context be construed as an effective sublease for purposes herein). It is intended
that the term Sublease encompasses such instruments that effectuate qualified end-user,
title, possession and/or use of Affordable Housing Units developed on the Demised
Premises. A Sublease, as used herein, regardless of final form and substance, must be
approved by the Lessor, which approval shall not be unreasonably withheld.
"Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an
individual Affordable Housing Unit owner or tenant who, as of the date such person(s)
acquires( ) their interest(s) in the Affordable Housing Unit, would qualify for "Employee
Housing" as defined under Chapter 9.5 of the Monroe County Code and who is gainfully
employed illl, and derives at least seventy percent (70%) of their income from, Monroe
County from the time of their purchase (or rental as may be provided for or allowed by this
Lease) of an Affordable Housing Unit. Additionally, except as may be otherwise permitted
by this Lease, in order to remain eligible to retain ownership of and to reside in their
Affordable Housing Unit into retirement, in addition to complying with any otherwise
applicable provisions in the Affordable Restrictions, purchasers of all Affordable Housing
Units must for the five (5) years immediately following their purchase continue to earn at
least seventy percent (70%) of their family income from gainful employment within the
County.
"Term" shall mean the Commencement Date, and continuing for ninety-nine (99)
years thereafter, plus any agreed upon extension of this Lease, and unless otherwise
permitted by Lessor, all Subleases and rights or interests granted thereunder shall
terminate at the end of the Term.
ARTICLE II
Demised Premises
Section 2.01 Lessor's Demise. Upon the terms and conditions hereinaftersetforth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial ll.essee of these covenants and the terms and conditions of any Related
Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and
demise to tlle Initial Lessee and the Initial Lessee hereby leases from the Lessor, the
Page 6 of 53
Doell 1606283
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following described premises, situate, lying and being in Monroe County, Florida:
See Attached Exhibits "A" and "B"
Section 2.02 Conditions. The demise is likewise made subject to the following:
(a) Conditions, restrictions and limitations, if any, now appearing of
record;
(b) Zoning ordinances of the County of Monroe, State of Florida, and any
other applicable governmental body now existing or which may hereafter exist by reason of
any legal authority during the Term of this Lease; and
(c) The proper performance by the Lessee of all of the terms and
conditions contained in this Lease, the Affordable Restrictions and any Related
Agreements:.
ARTICLE III
Term
~on ~.01 Term. To have and to hold the Demised Premises for a term of ninety-
nine (99) years commencing on the Commencement Date, and ending ninety-nine (99)
years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter
provided (the "Termination Date"). Lessee shall be given possession on the Effective Date
and the tenns and conditions set forth herein shall be binding on the parties as of the
Effective Date. Lessee shall have the right to occupy the Demised Premises as of the
Effective Date in order to allow Lessee to commence construction, as well as other activities
related to the development and construction of the Project. As herein set forth, the Term
will not commence until the first Affordable Housing Unit is completed and a certificate of
occupancy has been issued for said first Affordable Housing Unit, said date to be evidenced
by the Commencement Date Agreement that the parties will execute in substantially the
same form as that set forth in Exhibit C hereto, upon completion of construction of the first
Affordable Housing Unit.
ARTICLE IV
Rent
~m 4.01 Annual Base Rent. Lessee covenants and agrees to pay to Lessor
promptly when due, without notice or demand, and without deduction or offset, Annual
Base Rent throughout the Term of this Lease beginning on the Commencement Date, in the
Page 7 of 53
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amount ofTen Dollars ($10.00) per Lease Year or partial Lease Year. Lessee shall pay to
Landlord said Annual Base Rent on the first day of the second month of each Lease Year
throughout the term of this Lease, provided that upon transfer of control of the Association
by Initial Lessee, Lessor agrees to provide written notice of the Annual Base Rent to the
Association at least ten (10) business days prior to said Rent being due, which notice may
be in the fmm of a single schedule of all rental due dates under the Term of the Lease duly
recorded in the Public Records of Monroe County, Florida, with a copy of such schedule
provided to the Lessee and Association. The form of such notice may be similar to that in
Exhibit D, hereto.
Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other
amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in
lawful money of the United States which shall be legal tender in payment of all debts and
dues, public: and private, at the time of payment, each payment to be paid to Lessor at the
address set forth herein or at such other place within the continental limits of the United
States as Lessor shall from time to time designate by notice to Lessee. Except for any
income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local
surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums
otherwise set forth herein.
Section 4.0~. It is intended that the Rent shall be absolutely net to Lessor
throughout the Term, free of any taxes, costs, utilities, insurance expenses, liabilities,
charges or other deductions whatsoever, with respect to the Demised Premises and/or the
ownership, leasing, operation, maintenance, repair, rebuilding, use or occupation thereof.
Section 4.04. All amounts payable by Lessee to Lessor under any of the provisions
of this Lease, if not paid when due as provided for in this Lease, shall bear interest at the
highest rate allowable under Florida law from the time they become due until paid in full by
Lessee. In addition, Lessee shall pay a late fee in the amount of ten (1096) percent of any
amount due from Lessee to Lessor which is not paid within ten (10) days of the payment
due date for any sums due for Rent and within thirty (30) days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge of Fifty Dollars ($50.00).
In addition, Lessor shall be reimbursed by Lessee for any costs incurred by Lessor as a
result of said instrument being dishonored.
ARTICLE V
Page 8 of 53
Doell 1606283
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Non-Subordination
Section !'i.Ol Non-Subordination. Notwithstanding anything to the contrary
contained in this Lease, the fee simple interest in the Demised Premises shall not be
subordinated to any leasehold mortgage, lien or encumbrance of any nature. Furthermore,
the Lessor's right to receive payment or performance under the terms of this Lease or
adherence to any ofits conditions or to the Affordable Restrictions (or performance under
or adherence to the terms of any Sublease or related instrument) shall not be subordinated
to any debt or equity financing, leasehold mortgage, lien, encumbrance or obligation of any
nature whatsoever.
ARTICLE VI
Payment of Taxes and Utilities
Section 6.01 Lessee's Obligations. As additional Rent, the Lessee shall pay and
discharge, as they become due, promptly and before delinquency, all taxes, assessments,
water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises,
levies, licenses and permit fees and other governmental charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever,
which at any time during the Term of this Lease may be assessed, levied, confirmed,
imposed upon, or grow or become due and payable out of or in respect of, or become a lien
on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee
from the sale of the Affordable Housing Units to Sublessees, or be associated with any
document (to which the Lessee is a party) creating or transferring an interest or estate in
the Demised Premises. With regard to special assessments, if the right is given to pay
either in one sum or in installments, Lessee may elect either mode of payment and Lessee's
election shall be binding on Lessor.
Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee shall pay
and discharge, as they become due, promptly and before delinquency, all taxes,
assessments, water and sewer rents, rates and charges, transit taxes, charges for public
utilities, excises, levies, licenses and permit fees and other governmental charges, general
and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature
whatsoever, which at any time during the term of this Lease may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect of, or
become a lien on, the Sublessee's interest in the Demised Premises, or otherwise arise out
of the revenue received by Sublessee from the sale of their Affordable Housing Unit, or be
associated with any document (to which the Sublessee is a party) creating or transferring
an interest or estate in the respective portion of the Demised Premises.
Section 6.0~ Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
Page 9 of 53
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federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or
Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner
of the fee of the Demised Premises; provided, however, that if at any time during the term
of this Lease the methods of taxation prevailing at the commencement of the term hereof
shall be altered so as to cause the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed and imposed, wholly or partially as a capital
levy, or otherwise, on the rents received therefrom, or of any tax, corporation franchise tax,
assessments, levy (including, but not limited to any municipal, state or federal levy),
imposition or charge, or any part thereof, shall be measured by or based in whole or in part
upon the Demised Premises and shall be imposed upon the Lessor, then all such taxes,
assessments, levies, impositions or charges, or the part thereof so measured or based, shall
be paid and discharged by the Lessee. All rebates on account of any taxes, rates, levies,
charges or assessments required to be paid shall belong to Lessee.
Section 6.04 Mode of Payment. The Lessee (and any Sublessee, as to their specific
interests in the Demised Premises) shall pay the taxes and other charges as enumerated in
this Article VI and shall deliver official receipts evidencing such payment to the Lessor
(Sublessees shall only deliver receipts as may be required by the Affordable Restrictions),
which payment of taxes shall be made and the receipts delivered, at least thirty (30) days
before the tax, itself, would become delinquent in accordance with the law then in force
governing the payment of such tax or taxes. If, however, the Lessee desires to contest the
validity of any tax or tax claim, the Lessee may do so without being in default hereunder,
provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County, one and one half (1 ]12) times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
thereof shall have been determined, and which written notice and bond or equivalent cash
shall be given by the Lessee to the Lessor, not later than sixty (60) days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6.0Fi Lessee's Default. If the Lessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,
pay the same and the amount or amounts of money so paid, including reasonable attorneys'
fees and expenses which might be reasonably incurred because of or in connection with
such payments, together with interest on all such amounts, at the highest rate allowed by
law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the
payment thereof may be collected or enforced by the Lessor in the same manner as though
such amount were an installment of Rent specifically required by the terms of this Lease to
be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment
thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to
pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding
the foregoing, Lessee shall have the right to contest any taxes and assessments levied
against Lessee; and provided Lessee files the appropriate documentation to contest said tax
or assessment, Lessee shall not be in default of this Lease or obligated to pay any interest or
Page 10 of 53
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other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the
assessment measures and collection remedies lawfully available to any taxing authority.
Section 6.06 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make
any of the payments required in this Article, then the Lessor may, but shall not be required
to, pay the same, and the amount or amounts of money so paid, including reasonable
attorneys' fees and expenses which might be reasonably incurred because of or in
connection with such payments, together with interest on all such amounts, at the highest
rate allowed by law shall be repaid by the Sublessee to the Lessor, upon the demand of the
Lessor, and the payment thereof may be collected or enforced by the Lessor in the same
manner as though such amount were an installment of Rent specifically required by the
terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor
demands repayment thereof or reimbursement therefor of and from the Sublessee; but the
election of the Lessor to pay such taxes shall not waive the default thus committed by the
Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any
taxes and assessments levied against Sublessee; and provided Sublessee files the
appropriatE: documentation to contest said tax or assessment, Sublessee shall not be in
default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing
herein shan be construed to prevent or inhibit the assessment measures and collection
remedies lawfully available to any taxing authority.
Section 6.07 Proration. The foregoing notwithstanding, the parties hereto
understand and agree that the taxes for the first year (beginning on the Effective Date) and
the last year of the Term shall be prorated proportionately between the Lessor and the
Lessee.
Section 6.08 Appraiser to Respect Effect of Affordable Restrictions. It is the intent
of the parties that any appraisal of any portion of the Demised Premises for taxation, public
assessment or utility service purposes fully reflect the effect of this Lease and the Affordable
Restrictions on the lawfully realizable value of relevant portion(s) appraised, or where
permissible by state law, "income approach" or other method of calculation.
ARTICLE VII
Mechanic's liens
Section 7.01 No lien. Neither the Lessee nor any Sublessee shall have the power to
subject the interest of the Lessor in the Demised Premises to any mechanic's or
materialmen's lien of any kind.
Section 7.02 Release of lien. Neither the Lessee nor any Sublessee shall permit or
suffer to be filed or claimed against the interest of the Lessor in the Demised Premises
during the continuance of this Lease any lien or claim of any kind, and if such lien be
claimed or filed, it shall be the duty of the Lessee, or the Sublessee, to which the lien or
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claim is attributable, within thirty (30) days after the Lessee or Sublessee shall have been
given written notice of such a claim having been filed, or within thirty (30) days after the
Lessor shall have been given written notice of such claim and shall have transmitted written
notice of the receipt of such claim unto the Lessee or Sublessee, as the case may be,
(whichever thirty (30) day period expires earlier) to cause the respective portion of the
Demised Premises to be released from such claim, either by payment or by the posting of
bond or by the payment to a court of competent jurisdiction of the amount necessary to
relieve and release the relevant portion of the Demised Premises from such claim, orin any
other manner which, as a matter oflaw, will result, within such period of thirty (30) days,
in releasing the Lessor and the title of the Lessor from such claim; and the Lessee covenants
and agrees, with respect to any lien or claim attributable to it, within such period of thirty
(30) days, so as to cause the affected portion of the Demised Premises and the Lessor's
interest therein to be released from the legal effect of such claim.
Section 7.0'l Lessee's Default. If the Lessee shall fail, refuse, or neglect to perform
its obligations as required in this Article, then the Lessor may, but shall not be required to,
pay any sums required to cause the Demised Premises and the Lessor's interest therein to
be released from the legal effect of such claim and the amount or amounts of money so
paid, including reasonable attorneys' fees and expenses which might be reasonably
incurred because of or in connection with such payments, together with interest on all such
amounts at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor,
upon the demand of the Lessor, and the payment thereof may be collected or enforced by
the Lessor in the same manner as though such amount were an installment of Rent
specifically required by the terms of this Lease to be paid by the Lessee to the Lessor, upon
the day when the Lessor demands repayment thereof or reimbursement therefor of and
from the Lessee; but the election of the Lessor to pay such amount shall not waive the
default thus committed by the Lessee.
Section 7.04 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
required to, pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so paid, including reasonable attorneys' fees and expenses which might be
reasonably incurred because of or in connection with such payments, together with interest
on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to
the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or
enforced by the Lessor in the same manner as though such amount were an installment of
Rent specifically required by the terms of this Lease to be paid by the Sublessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement
therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall
not waive the default thus committed by the Sublessee.
ARTICLE VIII
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Restrictions. Any instrument of conveyance, lease, assignment or other disposition made
without following the notice procedures set forth herein shall be void and confer no rights
upon any third person, though such instruments may in some cases be validated by fully
correcting them according to procedures established by Lessor, as determined in Lessor's
sole discretion, so as to ensure compliance with the public affordability purposes furthered
by this Lease and the Affordable Restrictions.
Section 12.0"' Follow-on Sales and Assignments of Ground Lease Requirements:
Right of First Refusal. Unless authorized by the Affordable Restrictions or unless otherwise
as set forth in subsection e., below, or in another provision herein, rentals of Affordable
Housing Units are prohibited. In order for an owner or subsequent owner to sell their
Affordable Housing Unit and assign their Sublease they shall be required to comply with
the following:
a. Sublessee shall notify the Lessor or its designee in writing of their desire to
sell the Affordable Housing Unit and assign the sublease, said notice
hereinafter referred to as a "Transfer Notice." The Transfer Notice shall
include the proposed purchase price for the Affordable Housing Unit, and
any other compensation permitted the Seller relating to the proposed sale,
which shall be in accordance with the Affordable Restrictions. Undisclosed
compensation to a Seller or to any other party is prohibited and where it is
found to have existed with respect to any transaction, the amount thereof
shall be recoverable in law and equity from any party to or facilitating and
benefiting from such transaction with knowledge thereof.
b. Lessor shall have for thirty (30) days from the date of receipt of the written
Transfer Notice to exercise and/or to assign a right of first refusal granted
hereunder to purchase the Affordable Housing Unit or to find or identify to
the selling party in writing a qualified purchaser who meets the income and
other requirements for purchasing the Affordable Housing Unit.
Additionally:
1. The total sales price for all interests to be transferred shall be
the purchase price set forth in the Transfer Notice, which shall
not exceed the highest price permitted under the Affordable
Restrictions. All additional terms of the contract shall be
consistent with the Affordable Restrictions. Sublessee hereby
agrees to execute a contract with a pre-qualified purchaser
identified by the Lessor (or the Lessor ifit exercises its right of
first refusal) and to cooperate with reasonable closing
procedures not in conflict with the Affordable Restrictions.
2. In the event Lessor finds a qualified purchaser, Lessor will
assist in coordinating the closing on the Affordable Housing
Unit. The closing shall be scheduled to occur within seventy-
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five (75) days from the effective date of the contract for the sale
of the Affordable Housing Unit, unless extended by the mutual
agreement of the parties and Lessor. Should Lessor exercise its
right of first refusal, it shall close under the same schedule set
forth herein.
c. In the event Lessor elects not to purchase or fails to identify a qualified
purchaser who enters into a purchase contract within thirty (30) days and
who closes as provided above, and provided that Sublessee has fully complied
with all required procedures set forth in the Lease and the Affordable
Restrictions, Sublessee shall be entitled to sell the property to a qualified
purchaser pursuant to the Affordable Restrictions and the terms set forth in
the complying Transfer Notice. In this event, Sublessee shall allow Lessor to
review and approve all proposed contract terms to ensure that the terms and
the proposed purchaser meet the requirements for purchasing the Affordable
Housing Unit, which approval shall not be unreasonably withheld or delayed.
Sublessee shall provide Lessor with a full copy of a written purchase and sale
contract (and all addenda) within three (3) business days offull execution of
each contract document, and all contracts shall state that they and the
proposed purchaser are subject to this Lease and the approval of the Lessor.
Lessor shall have fifteen (15) business days from receipt to review the terms
of the contract documents. In the event Lessor fails to provide Sublessee
with written approval or any written objections within fifteen (15) business
days from receipt of a contract document, Lessor shall be deemed to have not
objected to closing of the proposed transaction though not to have waived
enforceability of any applicable provisions of this Lease or the Affordable
Restrictions, whether or not any non-compliance may have been apparent
from or may have been indicated in documents provided. Sublessee and the
potential buyer shall also provide any other information Lessor reasonably
deems necessary to verify purchaser/Sublessee qualifications. All purchase
and sale contracts shall be deemed to be contingent on the buyer and
transaction being qualified under the Affordable Restrictions. Lessor and the
proposed parties to a transfer transaction may agree to additional time
periods necessary to verify full compliance with all aspects of the Affordable
Restrictions. In no case shall Lessor, or its designees, be deemed to waive
with respect to any party any requirement applicable to that party under the
Affordable Restrictions where it turns out that such requirement was not in
fact met, true or complied with. Lessor reserves, to itself and to its designees,
all legal and equitable rights it deems necessary or appropriate to ensure that
all portions of the Demised Premises are used for Affordable Housing, the
purpose for which they were intended, including but not limited to
termination of the sublease for any portion of the Demised Premises and
forcing sale and reassignment of any improvements thereon.
d. Lessor shall be deemed reasonable in withholding its approval for any
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proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. Mer the
Lessor has reviewed and approved a contract, Sublessee shall not have the
ability to amend the terms of the contract unless Sublessee obtains Lessor's
approval of the amendment as set forth in Paragraph c., above. The
Sublessee shall only transfer their interest to approved persons, as defined by
the Affordable Restrictions for moderate or lesser income, or to Lessor in the
event Lessor and Sublessee are unable to find a qualified purchaser, so long
as Lessor chooses to purchase the Affordable Housing Unit, in Lessor's sole
and absolute discretion. Additionally, after the expiration of the thirty (30)
day period described in Paragraph b. above, and before Sublessee has found a
qualified purchaser, Lessor may, but is not obligated to, continue the search
for a qualified purchaser. In the event Lessor finds and identifies a qualified
purchaser prior to Sublessee doing so, the procedure set forth in Paragraph
b.2., above, shall be followed.
e. Lessee and Sublessees are deemed to understand and agree that Lessor may,
in its absolute discretion, require that any Affordable Housing Unit originally
sold as an affordable "ownership" and "occupancy" Affordable Housing Unit
which is made the subject of any unauthorized offer to rent, or which is
attempted to be or is actually rented absent specific written Lessor
authorization or as authorized in the Affordable Restrictions, be deemed to
have become the subject of an irrevocable offer to sell the Affordable Housing
Unit and thus subject to the right of first refusal provisions of this Article XII
and allow Lessor or its designee to purchase the Affordable Housing Unit at
the highest price permitted under the Affordable Restrictions. Lessor may
establish rental first right of refusal procedures shnilar to those set forth in
Paragraphs a. - d., above, for Affordable Housing Units to be used for
affordable rentals in accordance with the terms contained herein and in the
Affordable Restrictions. In such case, a Sublessee may rent their Unit so long
as all rental agreements follow the guidelines and procedures set forth herein
and in the Affordable Restrictions, including but not limited to providing
Monroe County with a copy of the proposed rental agreement for review and
approval. Additionally, the rental agreement must include a copy of the
Association rules and regulations, as well as an acknowledgement by the
tenant that they will abide by the rules and regulations of the Association,
and Sublessee shall provide the Association with a copy of said rental
agreement to ensure compliance. Furthermore, no Sublessee shall be
authorized to enter into a rental agreement for an Affordable Housing Unit
containing a term greater than one (1) year, or containing an automatic
renewal term that would frustrate Lessor's rights or continued affordability
expectations established under this Lease or the Affordable Restrictions.
Additionally, in the event a tenant has been cited for a violation of the rules
and regulations of the Association more than twice in any calendar year,
Sublessee hereby agrees not to renew said lease without first obtaining the
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approval of the Association Board of Directors, and said approval may be
withheld in their sole and absolute discretion. Any rental agreement shall
contain the following warning prominently set forth in writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83
FLORIDA STATUrES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOR STORAGE OR DISPOSmON OF THE LESSEE'S
PERSONAL PROPERlY.
Section 12.06 Assignment by Lessor. This Lease is freely assignable by the Lessor,
and upon such assignment, the Lessor's liability shall cease and Lessor shall be released
from any further liability. In the event the ownership of the land comprising the Leased
Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any
other person or entity, this Lease shall not cease, but shall remain binding and unaffected.
Section 12.07 Death of a Unit Owner. In the event the Owner of an Affordable
Housing Unit dies, Lessor shall, unless for good cause shown, consent to a transfer of the
leasehold interest to the spouse, child(ren) or other heirs, devisees, legatees or beneficiaries
of the Affordable Housing Unit Owner provided that such persons state, in writing, under
oath that they have reviewed the terms of this Lease and any related documents, and that
they understand and accept the terms of this Lease by signing an acknowledgement, which
is substantially in a form similar to that attached hereto as Exhibit E. All spouses, heirs,
devisees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable
satisfaction that they qualify for ownership and/or occupancy of an affected Affordable
Housing Unit as provided for under this Lease and in the Affordable Restrictions. All
estates and leasehold or other interests granted in or conveyed with respect to any of the
Demised Premises do not extend to any degree so as to limit or inhibit the intent and
operation of this Lease and the Affordable Restrictions, it being expressly and irrevocably
accepted on behalf of all future Sublessees and all those who would or might succeed to
their interests, that these Demised Premises and each and every portion thereof, for the
entire Term of this Lease, are to be used as affordable housing according to the Affordable
Restrictions. In the event the spouse, heirs, devisees, legatees or beneficiaries of a deceased
Owner do not meet the requirements for affordable housing, such persons shall not occupy
the premises and shall not be entitled to possession, except and only to the extent that the
Lessor permits same, under conditions that it determines furthers the goals and public
purposes of this Lease and the Affordable Restrictions. Therefore, in such event, the heirs
of the decedent shall, if required by Lessor, transfer their interest in the Affordable Housing
Unit in accordance with the provisions of this Article XII and cooperate with the Lessor in
accomplishing same. It is the intent of this Lease, to the full extent Florida law permits,
that constitutional homestead rights not be construed to inhibit or limit the intended
operation of this provision.
Section 12.08 Administrative Fees. With the exception of the initial sales by Initial
Lessee, the Lessor or its designee shall be entitled to charge three and one-half percent (3
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l/2 %) of the Purchase Price (gross compensation however described) for any transferred
interest (other than simple security mortgage interests or rental agreements) in which
Lessoridentified the purchaser, as an administrative fee for coordinating the closing on any
Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of
closing. This fee does not include other seller and buyer closing related costs such as title
insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions,
insurance, homeowners' assessments, loan expenses and the like, or rental management or
processing fees for rental units. In the event Lessor was unable to identify a purchaser,
Lessor shall still be entitled to an administrative fee of one and one-half percent (1l/2 %) of
the Purchase Price for review of the contract and assistance with coordinating the closing
on the Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its
designee shall be authorized to designate closing, escrow and title agents involved in all
transactions involving interests subject to this Lease. After the initial sale of each
Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from
time to time, establish, promulgate, revise and/or waive all or part of such fees related to
the administration of this Lease and any Subleases, but in no event may Lessor increase the
amount of the administrative fee to an amount in excess of three and one-half percent (3l/2
%) for an owner who purchased his or her Affordable Housing Unit without actual,
constructive or regulatory notice of the potential applicability of a greater percentage fee.
ARTICLE XIII
Condemnation
Section 1~.01 Eminent Domain: Cancellation. If, at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain, there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (30) days after such award has been
made, then the matters in dispute shall be determined in accordance with the rules of the
American Arbitration Association. Such determination made by the arbitration shall be
binding on the parties. If the legal title to the entire Demised Premises be wholly taken by
condemnation, the Lease shall be cancelled.
Section 1~.02 Apportionment. Although the title to the building and improvements
placed by the Lessee upon the Demised Premises will on the Termination Date pass to the
Lessor, nevertheless, for purpose of condemnation, the fact that the Lessee placed such
buildings on the Demised Premises shall be taken into account, and the deprivation of the
Lessee's use (and any use of a Sublessee) of such buildings and improvements shall,
together with the Term of the Lease remaining, be an item of damage in determining the
portion of the condemnation award to which the Lessee or Sublessee is entitled. In general,
it is the intent of this Section that, upon condemnation, the parties hereto shall share in
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their awards to the extent that their interests, respectively, are depreciated, damaged, or
destroyed by the exercise of the right of eminent domain. In this connection, if the
condemnation is total, the parties agree that the condemnation award shall be allocated so
that the then value of the property, as though it were unimproved property, shall be
allocated to the Lessor, and the then value of the building or buildings thereon shall be
allocated between the Lessor and Lessee after giving due consideration to the number of
years remaining in the Term of this Lease and the condition of the buildings at the time of
condemnation.
ARTICLE XIV
Construction
~on 14.01 Requirement to Construct Proiect.
(a) Initial Lessee shall commence construction of the Project no later than one
hundred twenty (120) days after the issuance of the building permits necessary for the
construction of the Project, and shall substantially complete construction of all forty (40)
Affordable Housing Units within eighteen (18) months thereafter. Theforegoinglimitation
of time for 1he completion of the Project may be extended by written agreement between
the parties hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers,
letters or other materials in their possession or under their control where such information
is subject to public disclosure under the provisions of Chapter 119, F.S., or successor or
supplemental statutes. However, nothing contained herein shall be construed to render
documents or records of Initial Lessee or any other persons that would not be deemed
public records under Chapter 119 to be such records only because of this provision. Lessees
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
performanc:e under this Lease in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said officials or of
the Lessor, shall, during the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, have access to and the right to examine and
audit any Records of the Lessee involving transactions related to this Agreement.
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
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for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
permits and licenses, provided that such approvals, permits and licenses shall be obtained
at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be
construed to obviate or lessen any requirements for customary development approvals from
any permitting authority, including the Lessor. Nothing in this Lease shall be construed as
the Lessor"s delegation or abdication of its zoning authority or powers and no zoning
approval that Initial Lessee may require to complete its performance under this Lease has
been or shall be deemed agreed to, promise or contracted for by this Lease.
(e) Construction of the Project on the Demised Premises prior to and during the
Term of this Lease shall be performed in a good and workmanlike manner, pursuant to
written contracts with licensed contractors and in accordance with any and all
requirements of local ordinances and with all rules, regulations and requirements of all
departments, boards, officials and authorities having jurisdiction thereof. It is understood
and agreed that the plans and specifications for all construction shall be prepared by duly
qualified architects/engineers licensed in the State of Florida.
(0 At all times and for all purposes hereunder, the Initial Lessee is an
independent contractor/lessee and not an employee of the Board of County Commissioners
of Monroe County or any of its agencies or departments. No statement contained in this
Lease shall be construed as to find the Initial Lessee or any of its employees, contractors,
servants or agents to be employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of County
employees. No covenant or agreement contained herein shall be deemed to be a covenant
or agreement of any member, officer, agent or employee of Monroe County in his or her
individual capacity, and no member, officer, agent or employee of Monroe County shall be
liable personally on this Lease or be subject to any personal liability or accountability by
reason of the execution of this Lease.
(g) Initial Lessee agrees that it will not discriminate against any employees,
applicants for employment, prospective Sublessees or other prospective future subinterest
holders or against persons for any other benefit or service under this Lease because of their
race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap
where the handicap does not affect the ability of an individual to perform in a position of
employment,and to abide by all federal and state laws regarding non-discrimination.
14.02 Access to the Proiect and Inspection. The Lessor or its duly appointed agents
shall have the right, at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county
or State code or building inspectors, and the like, without limitation. Initial Lessee shall
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permit building and code inspectors access customary to the penormance of their duties
related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
l4&.:~ Forced Delay in Penormance. Notwithstanding any other provisions ofthis
Lease to the contrary, the Initial Lessee shall not be deemed to be in default under this
Lease where delay in the construction or penormance of the obligations imposed by this
Lease are ca.used by war, revolution, labor strikes, lockouts, riots, floods, earthquakes, fires,
casualties, acts of God, labor disputes, governmental restrictions, embargoes, litigation
(excluding litigation between the Lessor and the Initial Lessee), tornadoes, hurricanes,
tropical storms or other severe weather events, or inability to obtain or secure necessary
labor, materials or tools, delays of any contractor, subcontractor, or supplier, or
unreasonable acts or failures to act by the Lessor, or any other causes beyond the
reasonable control of the Initial Lessee. The time of penormance hereunder shall be
extended for the period of any forced delay or delays caused or resulting from any of the
foregoing causes.
ARTICLE XV
Mortgage Financing
Section 1".01 Construction Financing By Initial Lessee. Initial Lessee shall have the
right to mortgage its interests in the Demised Premises.
(a) The Initial Lessee shall have the right to encumber by mortgage or
other proper instrument Initial Lessee's interest under this Lease, together with all
buildings and improvements placed by Initial Lessee on the Den1ised Premises, to a Federal
or State Savings & Loan Association, Bank or Trust Company, Insurance Company, Pension
Fund or Trust (or to another private lender so long as the terms and conditions of the
financing from private lender are on substantially similar terms to those then existing by
the other lenders referred to in this Section), or to similar lending institutions authorized to
make leasehold mortgage loans in the State of Florida, or to any public or quasi-public
lender.
(b) Until the time any leasehold mortgage(s) shall be satisfied of record,
when giving notice to the Initial Lessee with respect to any default under the provisions of
this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's
leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s)
(including assignments thereof) as recorded in the Public Records of Monroe County,
Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a
copy of such notice has been mailed to such leasehold mortgagee(s), which notice must
specify the nature of each such default. Initial Lessee shall provide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises.
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Governing Law. Cumulative Remedies
Section 8.01 Governing Law. All of the rights and remedies of the respective parties
relating to or arising under this instrument and any related documents shall be governed by
and construed under the laws of the State of Florida.
Section 8.02 Cumulative Remedies. All rights and remedies accruing to the Lessor
shall be assignable in whole or in part and be cumulative; that is, the Lessor may pursue
such rights as the law and this Lease afford to it in whatever order the Lessor desires and
the law permits. Lessor's resort to anyone remedy in advance of any other shall not result
in waiver or compromise of any other remedy.
ARTICLE IX
Indemnification of Lessor
Section Q.01 Indemnification by Lessee. During the Term of the Lease, Lessee will
indemnify, defend and save harmless the Lessor against any and all claims, debts, demands
or obligations which may be made against the Lessor or against the Lessor's title in the
Demised Premises, arising out of, or in connection with, or in any way related to the
Demised Premises, except to the extent such claims may be caused by the gross negligence
or intentional misconduct of the Lessor (or its agents or employees in the conduct of work
for or at the direction of the Lessor) with respect only to any duty or obligation Lessor
expressly assumes with respect to any portion of the Demised Premises, none of which
duties and obligations are so assumed herein. If it becomes necessary for the Lessor to
respond to any claim, demand or unanticipated matter or to defend any action seeking to
impose any such liability, the Lessee will pay the Lessor all costs of court and reasonable
attorneys' fees incurred by the Lessor in effecting and preparing for such response or
defense in addition to any other reasonable sums which the Lessor may be called upon to
pay by reason of the entry of a judgment against the Lessor in any proceeding in which
such claim is asserted.
Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise
provided in Section 12.01, upon completion of the construction and sale or assignment of
any portions of the Project in accordance with this Lease, Initial Lessee shall be released
from any and all liability related to such transferred portions of the Demised Premises and
the subsequent use thereof by the Sublessees, their employees, agents, contractors, guests
or invitees, including without limitation any death, injury or damage to person or property
in or about the transferred portions of the Demised Premises, except as otherwise set forth
herein. However, this release shall not constitute a release or waiver of Lessor's rights, if
any, or possible entitlement to insurance coverages required by this Lease.
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Lessor shall not be liable to Lessee, or to Lessee's assignees or Sublessees or their
employees, agents, contractors, guests or invitees for any death, injwy or damage to person
or property in, about or relating to the Demised Premises. Lessee, on its and its assignees'
and their successors in interests' behalves, including any future Sublessees, or grantees or
licensees of the Initial Lessee or the Association, or any guests, invitees or tenants of any of
the foregoing, hereby assumes and covenants for its own and their own acceptance of sole
responsibility and liability to all persons for death, injwy or damage related to or arising
from the ownership, possession, occupancy and for use of any portion of the Demised
Premises, and also, for all such future occupants, owners, Lessees, Sublessees, tenants,
guests, invitees and licensees, waives and releases forever all claims, demands and causes of
action against Lessor and its officers, employees, agents, successors, assigns, contractors
and representatives for loss of life or injury to person or property, of whatever nature.
Section Q.02 Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X
insuring the Lessee against any and all claims and demands made by any person or persons
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as
their respective interests may appear, as the persons insured by such policies. Any loss
adjustment shall require the written consent of both the Lessor and Lessee.
Section Q.O~ Policy limit Changes. The policy limits for the comprehensive liability
insurance may be reviewed by Lessor every five (5) years and adjusted upward, if, in the
reasonable discretion of Lessor such increase in coverage is prudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance
Section 10.01 Property Insurance. From and after the Effective Date, the Lessee
will keep insured any and all buildings and improvements upon the Demised Premises
against all loss or damage by fire, flood and windstorm, together with "all risks" "extended
coverage, " which said insurance will be maintained in an amount sufficient to prevent any
party in interest from being or becoming a co-insurer on any part of the risk, which amount
shall not be less than the full Replacement Cost value of the relevant portions of the
Demised Premises, and all of such policies of insurance shall include the name of the
Lessor as an additional insured and shall fully protect both the Lessor and the Lessee as
their respective interests may appear. In the event of destruction of buildings or
improvements by fire, flood, windstorm or other casualty for which insurance shall be
payable and as often as such insurance money shall have been paid to the Lessor and the
Lessee, said sums so paid shall be deposited in ajoint account of the Lessor and the Lessee
in a bank designated by the Lessee and located in the County in which the Demised
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Premises is located, and shall be made available to the Lessee for the construction or repair
(including any modification to the improvements sought by the Lessee and approved in
writing by the Lessor with Lessor's approval not unreasonably withheld), as the case may
be, of any building or buildings damaged or destroyed by fire, flood, windstorm or other
casualty for which insurance money shall be payable and shall be paid out by the Lessor
and the Lessee from said joint account from time to time on the estimate of any reliable
architect licensed in the State of Florida officially overseeing of such reconstruction and
repair, certifying that the amount of such estimate is being applied to the payment of the
reconstruction or repair and at a reasonable cost therefor; provided, however, that the total
amount of money necessary for the reconstruction or repair of any building or buildings
destroyed or damaged has been provided by the Lessee for such purpose and its application
for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as any portion of said Demised
Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the
Lessee shall, within fifteen (15) months from the date of such damage or destruction,
rebuild and repair the same in such manner that the buildings or improvements so rebuilt
and repaired, and the personal property so replaced or repaired, shall be of the same or of a
value higher than were the buildings or improvements and the personal property prior to
such damage or destruction, and Lessee shall diligently prosecute the reconstruction or
repairs without delay and have the same rebuilt and ready for occupancy as soon as
reasonably possible after the time when the loss or destruction occurred. The 15-month
period for reconstruction shall be enlarged by delays caused without fault or neglect on the
part of the Lessee, by act of God, strikes, lockouts, or other conditions (other than matters
of refinancing the property) beyond the Lessee's control. Notwithstanding the foregoing,
and only with respect to insurance proceeds, the provisions of any leasehold mortgage
substantially comporting with customary institutional lending industry standards and the
foregoing Lessor's interests shall control as to the use and disbursement of insurance funds
for reconstruction of the improvements in the event of any casualty or damage to such
improvements.
While the Project, or any replacement thereof, is in the course of construction, and
whenever appropriate while any alterations are in the course of being made, the aforesaid
fire and extended coverage insurance shall be carried by Lessee in builder's risk form
written on a completed value basis.
Notwithstanding anything to the contrary in the immediately preceding paragraph,
in case of destruction of all of the improvements on the Demised Premises from any cause
so as to make all Affordable Housing Units untenantable occurring during the last ten (10)
years of the Term of this Lease, Lessee, if not then in default under this Lease and if there is
no leasehold mortgage or other similar encumbrance on the Lessee's interest in the
Demised Premises, may elect to terminate this Lease by written notice to Lessor within
thirty (30) days after the occurrence of the destruction. In the event this Lease has been
assigned to the Association, the Association must obtain any necessary vote to terminate.
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In the event of termination, there shall be no obligation on the part of Lessee to restore or
repair the improvements on the Demised Premises, nor any right of the Lessee to receive
any proceeds collected under any insurance policies covering the improvements. If Lessee
elects not to terminate this Lease in the event of destruction during the last ten (10) years of
this Lease, the proceeds of all insurance covering the improvements shall be made available
to Lessee for repairs, and Lessee shall be obligated to repair as set forth above.
Section 10.02 Commercial General Liability Insurance. The Initial Lessee and the
Association (upon assignment to the Association) shall maintain Commercial General
Liability Insurance beginning on the Effective Date and continuing during the entire Term
of this Lease. The Commercial General Liability Insurance shall cover those sources of
liability which would be covered by the latest edition of the standard Commercial General
Liability Coverage Form [ISO Form CG 00-01] as filed for use in Florida without the
attachment of restrictive endorsements other than the elimination of medical payments and
fire damage legal liability.
General Aggregate $1,000,000
Products/Completed Operations $1,000,000
[coverage for one (1) year after project completion]
Each Occurrence $1,000,000
Contractual Liability $1,000,000
Additional Named Insured: Lessor, or its assigns or designees, as from time to time
designated by written notice to Lessee, shall be included as additional insureds for
Commercial General Liability.
Section 1O.0"! Environmental Impairment Responsibility. The Lessee and/or its
contractors acknowledge that the performance of this Lease is, or may be, subject to
Federal, State and local laws and regulations enacted for the purpose of protecting,
preserving or restoring the environment. The Lessee shall, at the sole cost of the Lessee or
its contractors, be responsible for full compliance with any such laws or regulations.
Section 10.04 Other Insurance. Lessee shall maintain such other insurance and in
such amounts as may from time to time be reasonably required by the Lessor against other
insurable hazards which at the time are commonly insured against in the case of
construction. of buildings and/or in the case of premises similarly situated, due regard
being or to be given to the location, construction, use and occupancy. In the event the
Lessee believes the Lessor's requirementfor such additionalinsurance is unreasonable the
reasonableness of Lessor's request shall be determined in accordance with the rules of the
American Arbitration Association. Such determination as to the requirement of coverage
and the proper and reasonable limits for such insurance then to be carried shall be binding
on the parties and such insurance shall be carried with the limits as thus determined until
such limits shall again be changed pursuant to the provisions of this Section. The expenses
of such determination shall be borne equally by the parties. This procedure may only be
requested on each five (5) year anniversary date of the Lease.
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Section 10.0" Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage
created pursuant to the provisions of Article XV elects, in accordance with the terms of
such mortgage, to require that the proceeds of any casualty insurance be held by and paid
out by the mortgagee, then such payment may be made, but in such event, it shall still be
obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the
manner set forth in this Article to assure complete payment for the work of reconstruction
and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are
properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds
by Sublessee or Lessee.
Section 10.06 Damages: Insurance Proceeds: Joint Bank Account. Any excess of
money received from insurance remaining in the joint bank account after the
reconstruction or repair of such building or buildings, if the Lessee is not in default, shall
be paid to the Lessee. In the case of the Lessee not entering into the reconstruction or
repair of the building or buildings within a period of six (6) months from the date of
payment of the loss, after damage or destruction occasioned by fire, windstorm, flood or
other cause, and diligently prosecuting the same with such dispatch as may be necessary to
complete the same in as short a period of time as is reasonable under the circumstances
after the occurrence of such damage or destruction, then the amount so collected, or the
balance thereof remaining in the joint account, as the case may be, shall be paid to the
Lessor and it will be at the Lessor's option to terminate the Lease, unless terminated by
Lessee within the last ten (10) years of the Lease as set forth above, and retain such amount
as liquidated and agreed upon damages resulting from the failure of the Lessee to promptly,
within the time specified, complete such work of reconstruction and repair.
Section 10.07 Direct Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and 00/100 Dollars
($100,000.00) or less, then such proceeds shall be paid directly to the Lessee without the
necessity of creating the joint bank account, and Lessee shall use such funds to make the
replacements or repairs. Lessee shall provide proof satisfactory to Lessor that repairs are
completed as required within fifteen (15) months from the date of such damage or
destruction, unless said period is enlarged by delays caused without fault or neglect on the
part ofthe Lessee.
Section 10.08 General Requirements. All insurance to be provided by Lessee under
this Lease shall be effected under valid and enforceable policies in such forms, issued by
insurers of recognized financial responsibility qualified to do business in Florida which
have been approved by Lessor, which approval shall not be unreasonably withheld. All
policies of insurance provided for in this Article shall, to the extent obtainable, contain
clauses or endorsements to the effect that (i) no act or negligence of Lessee or anyone acting
for Lessee or for any Sublessee or occupant of the Demised Premises which might
otherwise result in a forfeiture of such insurance or any part thereof shall in any way affect
the validity or enforceability of such insurance insofar as Lessor, and that (ll) such policyof
insurance shall not be changed or cancelled without at least thirty (30) days written notice
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to the Lessor, and that (Hi) the Lessor shall not be liable for any premiums thereon or
subject to any assessments thereunder.
Section 1O.OQ Subsequent Lessees. Assignees. Sublessees and Grantees.
Notwithstanding anything contained herein to the contrary, in the event the Association
chooses not to obtain insurance coverage to protect against loss or damage by fire, flood
and windstorm for the individual Affordable Housing Units and therefore does not charge
the Sublessees for said coverage as part of the Association fees to be paid by the individual
Unit Owners; then, in such event Sublessees shall secure the above-described insurance
coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled
to require replacement cost and other customary and reasonable insurance coverage(s) at
least but only to the full replacement value of any Sublessees' and/or any governing
Association's insurable interest in the Demised Premises. Any parties who subsequently
become holders of any title or possessory interest to a portion of the Demised Premises,
shall upon request provide, in a form satisfactory to Lessor, proof of customary and
reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor
as set forth in this Article X, at least to the extent and value of that subsequent interest
holder's insurable interest. The same or similar procedures for the use and application of
insurance proceeds as set forth above may be required for subsequent interest holders and
the same remedies available to Lessor for Initial Lessee's failure to comply with such
insurance requirements shall be available to Lessor with respect to any future interest
holders. Future interest holders (including all Sublessees) shall name Lessor as an
additional insured on any required insurance policies.
ARTICLE XI
Insurance Premiums
Section 11.01 Insurance Premiums. The Lessee shall pay premiums for all of the
insurance policies which the Lessee is obligated to carry under the terms of this Lease. In
the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the
right, but not the obligation, without notice to Lessee, to procure such insurance and/or
pay the premiums of such insurance, in which case Lessee shall repay Lessor inlmediately
upon demand by Lessor as additional Rent. The Lessor shall have the same rights and
remedies with respect to procurement of such insurance and/or payment of such insurance
premiums in the event a future subsequent partial interest holder (e.g., Sublessee,
Association) fails to obtain and pay for the necessary insurance.
ARTICLE XII
AssignmentlTransfer
~on 12.01 Assignment by Initial Lessee. Without the written consent of Lessor,
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Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable
Housing Units are to be developed as units for sale or rent to moderate or lesser income
qualified third parties, as defined in the Affordable Restrictions. Therefore, the Affordable
Housing Units may be sold, rented and occupied without the Initial Lessee obtaining
consent from Lessor for such sale/subletting, provided that Initial Lessee shall follow the
guidelines set forth herein. In the event an Affordable Housing Unit is to be rented to a
qualified third party by Initial Lessee, said Unit shall only be rented at rates allowable
under the Affordable Restrictions for moderate or lesser income qualified third parties.
Additionally, in the event Initial Lessee retains ownership of Affordable Housing Units for
rental purposes, Initial Lessee shall have the right to assign its duties as property manager
for said Units to a third party without obtaining consent from Lessor.
Furthermore, Lessor hereby agrees that in the event Initial Lessee elects not to sell
all of the Affordable Housing Units to separate qualified individuals, then in such event,
Initial Lessee shall be authorized to sell the remaining unsold Units in bulk (no fewer than
three (3) Unit blocks, unless otherwise agreed by Lessor) at prices allowed under the
Affordable Restrictions to an entity or individual that may not qualify under the Affordable
Restrictions as of the date hereof. Said entity or individual shall have the same sale rights
as the Developer/Initial Lessee and same rights to rent its Units at affordable rates as set
forth herein; provided that Developer/Initial Lessee obtains the prior written consent of the
Lessor, said consent not to be unreasonably withheld. Developer/Initial Lessee shall notify
Lessor in writing ofits intent to sell Units in bulk, specifying which Units it proposes to sell
in bulk, the proposed sale prices and identifying details about the proposed purchaser, and
Lessor shall have fifteen (15) business days from receipt of such notice to provide written
consent or denial. In the event Lessor fails to respond within fifteen (15) business days of
receipt of Initial Lessee's notice, said failure to respond shall be deemed consent to sell the
Affordable Housing Units in bulk at prices allowed under the Affordable Restrictions to the
identified party. Additionally, Initial Lessee shall also have the right, with Lessor's consent
(which shall not be unreasonably withheld) to sell in bulk the Units thatit elects initially to
retain as rentals (no fewer than three (3) Unit blocks, unless otherwise agreed by Lessor) at
prices allowed under the Affordable Restrictions to an entity or individual that does not
qualify for affordable housing pursuant to the foregoing notice procedures; provided that
said entity or individual retains ownership of the Units and rents them at affordable rates
and in compliance with the Affordable Restrictions. Initial Lessee shall provide Lessor
with written notice of its intent to sell the rental Units in bulk and Lessor shall have fifteen
(15) business days to respond as set forth above and any failure to respond shall be deemed
consent. It is also agreed that any subsequent bulk purchaser shall have the right to sell the
rental Units in bulk to another entity or individual provided said subsequent bulk
purchaser obtains the prior written consent of the Lessor as set forth above and said Units
are sold at prices allowed under the Affordable Restrictions.
Upon the transfer/sale of each Affordable Housing Unit to be sold by Initial Lessee,
or any successor Lessee hereunder, Lessor or its designee shall attorn to the rights of Initial
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Lessee, or subsequent Lessee, as the case may be, with respect to each transferred/sold
Affordable Housing Unit. Any proceeds received by Initial Lessee from the sale of the
Affordable Housing Units shall remain the property of the Initial Lessee unless otherwise
provided herein. In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, Initial Lessee, or any successor Lessee, shall ensure the release of
any and all mortgage, mechanic's lien or other similar claims with respect to the relevant
portion of the Demised Premises other than new Sublessee purchase money mortgages and
the like, as such may be permitted by Article XV. Upon transfer/sale of seventy-five percent
(75%) of the Affordable Housing Units to be sold by Initial Lessee as authorized by this
Lease, or as otherwise required or permitted by Florida law, Initial Lessee will be authorized
to assign its interest in this Lease for any portions of the Demised Premises not part of the
Affordable Housing Units (i.e., common area) to a homeowners', condominium or similar
Association to be created by the Initial Lessee. Any such Association and its related
declaration, articles of incorporation, bylaws and any other governing documents, as may
be amended, shall first be approved by Lessor or its designee for compliance with the goals,
purposes and intent of this Lease and the Affordable Restrictions, which approval shall not
be unreasonably withheld. Where such documents comply with the foregoing, Lessor shall
join in any community ownership governing documents as may be required by Initial
Lessee in order to conform its planned unit community governance to state law. No
governing document related to such Association shall materially alter or impair the terms
and conditions of this Lease or the applicability of the Affordable Restrictions. Monroe
County shall have fifteen (15) business days from receipt of said documents to review and
object to any contents thereof. In the event Monroe County fails to provide written notice
of its consent or denial in regard to said documents, said failure shall be deemed acceptance
of the documents.
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Upon the foregoing contemplated assignments by Initial Lessee, the Affordable
Housing Unit owners (as Sublessees) and the Association shall assume and thereby be
assigned Lessee responsibilities to Lessor for their respective portions of the Demised
Premises, releasing Initial Lessee from same for all such portions, except for design and
construction defect liability for which developersjbuilders are otherwise responsible under
Florida law. Sublessees, however, shall not be construed to have assumed or have assigned
to them by this provision any indemnification duty to Lessor relating to any portions of the
Demised Premises for which they hold no interest. Notwithstanding the foregoing, Initial
Lessee's right to find or identify a qualified purchaser, as set forth below, shall attorn to the
Lessor (unless assigned by Lessor as set forth below) and the Initial Lessee shall be released
from further duty or responsibility to the Lessor for the resale of the Affordable Housing
Units. It is hereby acknowledged that Lessor shall have the right to assign any of its duties
and rights related to the assignment of Subleases, i.e. finding a qualified purchaser for
resales, or renters in the case of rental units (unless the rental units are owned by Initial
Lessee and Initial Lessee chooses to manage the retained units, then in such event Initial
Lessee shall have the right to find qualified renters for said rental units where that right is
not in conflict with the Affordable Restrictions), to the Monroe County Housing Authority,
or to any other governmental entity or profit or non-profit organization designated and
approved by Lessor. In the event such duties or rights are assigned, reference to "Lessor" in
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this Section 12.01 shall also refer to any assignee.
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee. Initial Lessee
shall be authorized to sell the Affordable Housing Units to individuals qualified to
own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record. Notwithstanding anything contained herein to the contraxy, all
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's
requirements of moderate or lesser income affordable housing, adjusted for family size, and
any other applicable Affordable Restrictions. Initial Lessee shall upon Lessor's request
provide verification in a form and manner reasonably determined by Lessor that
purchasers/sublessees/tenants for all Affordable Housing Units meet the requirements
herein. If Lessor is entitled to a reservation for initial purchase or assignment of the rights
to purchase all or a portion of the newly completed Affordable Housing Units, such right
and related procedures will be set forth in Exhibit F to this Lease.
Section 12.03 Assignment/Transfer by Sublessees. At such time as any individual
Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable
Housing Units and interests, the Sublessee shall be required to follow the procedures set
forth herein and any procedure that may be set forth in the Affordable Restrictions, and any
conveyance, transfer or other disposition and the acceptance of such transfers shall be
automatically deemed an agreement to the conditions set forth herein.
Section 12.04 Required Notice of Restrictions. Any conveyance, lease, assignment,
grant or other disposition of any interest made with respect to any portion of the Demised
Premises, including but not limited to any recorded Association governing documents,
other than those mortgage interests provided for in Article XV, shall contain the following
required Notice of Restrictions in a conspicuous location on the upper one-half of the first
page of the relevant instrument effectuating the interest in bold capital typed letters greater
than or equal to 14 point font:
NOTICEOFRESTIUCTIONS
ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT
OR OTHER DISPOSmON OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED
THEREON WILL BE SUBJECT TO CERTAIN RESTIUCTIONS INCLUDING BUT
NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME,
MEANS, RESALE PRICE, RENTAL AND MORTGAGE LIMITATIONS,
INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL
RECORDS BOOK _, PAGE _ OF THE PUBLIC RECORDS OF MONROE
COUNTY, FLORIDA.
The recorded book and page of the first recorded page of this Lease and, for recordable sale
or sublease instruments, the first recorded page of the Association governing documents
affecting the respective portion of the Demised Premises shall be set forth in the Notice of
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(c) In case the Initial Lessee shall default under any of the provisions of
this Lease,. the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such
default whether the same consists of the failure to pay Rent or the failure to perform any
other matter or thing which the Initial Lessee is required to do or perform and the Lessor
shall accept such performance on the part of the leasehold mortgagee(s) as though the same
had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the
date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section 15.01
shall have, in addition to any period of grace extended to the Initial Lessee under the terms
and conditions of this Lease for a non-monetary default, a period of sixty (60) days within
which to cure any non-monetary default or cause the same to be cured or to commence to
cure such default with diligence and continuity; provided, however, that as to any default of
the Initial Lessee for failure to pay Rent, or failure to pay any amount otherwise required
under the terms ofthis Lease (e.g., including, but not limited to, taxes or assessments), the
leasehold mortgagee(s) shall have thirty (go) days from the date the notice of default was
mailed to the mortgagee(s) within which to cure such default.
(d) In the event of the termination of this Lease with Initial Lessee for
defaults described in this Article XV, or of any succeeding Lease made pursuant to the
provisions of this Section IS.01(d) prior to the cure provisions set forth in Section 15.01(C)
above, the Lessor will enter into a new Lease of the Demised Premises with the Initial
Lessee's leasehold mortgagee(s), or, at the request of such leasehold mortgagee(s), to a
corporation formed by or on behalf of such leasehold mortgagee(s) or by or on behalf of the
holder of the note secured by the leasehold mortgage, for the remainder of the term,
effective on the date of such termination, at the Rent and upon the covenants, agreements,
terms, provisions and limitations contained in this Lease, provided that such leasehold
mortgagee(s) make written request and execute, acknowledge and deliver to the Lessor
such new Lease within thirty (go) days from the date of such termination and such written
request and such new Lease is accompanied by payment to the Lessor of all amounts then
due to the Lessor, including reasonable counsel fees, court costs and disbursements
incurred by the Lessor in connection with any such default and termination as well as in
connection with the execution, delivery and recordation of such new Lease, less the net
income collected by the Lessor subsequent to the date of termination of this Lease and prior
to the execution and delivery of the new Lease, and any excess of such net income over the
aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due
under such new Lease.
Any new Lease referred to in this Section IS.01(d) shall not require any
execution, acknowledgement or delivery by the Lessor in order to become effective as
against the Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
theretofore have received written notice; and (ii) an agreement by the leasehold
mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition, immediately
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upon receipt by the Lessor such new Lease, as provided in this Section 15.0l( d), the Lessor
shall be deemed to have executed, acknowledged and delivered to the leasehold
mortgagee(s) an assignment of all Subleases covering the Demised Premises which
theretofore may have been assigned and transferred to the Lessor and all Subleases under
which Sublessees shall be required to attorn to the Lessor pursuant to the terms and
conditions of such Subleases or this Lease. Such assignment by the Lessor shall be deemed
to be without recourse as against the Lessor. Within ten (10) days after a written request
therefore by the leasehold mortgagee(s), such assignment or assignments shall be reduced
to a writing in recordable form and executed, acknowledged and delivered by the Lessor to
the leasehold mortgagee(s).
(e) The Initial Lessee's leasehold mortgagee(s) may become the legal
owner and holder of this Lease by foreclosure ofits(their) mortgagees) or as a result of the
assignment of this Lease in lieu of foreclosure, which shall not require Lessor's consent,
whereupon such leasehold mortgagee(s) shall immediately become and remain liable under
this Lease as provided in Section 15.01(f) below.
(f) In the event that a( ) leasehold mortgagee(s) shall become the owner or
holder of the~ Lessee's interest by foreclosure ofits(their) mortgagees) or by assignment of
this Lease in lieu of foreclosure or otherwise, the term "Initial Lessee," as used in this Lease,
means only the owner or holder of the Lessee's interest for the time period that such
leasehold mortgagee(s) is(are) the owner or holder of the Lessee's interest. Accordingly, in
the event of a sale, assignment or other disposition of the Initial Lessee's interest in this
Lease by the leasehold mortgagee(s), where leasehold mortgagee(s) took title or ownership
of or to any or all of the Initial Lessee's interest in the Lease and/or any portion of the
Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof,
the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and
obligations of performance relating to construction, marketing and transfer to Sublessees
and it shall be deemed and construed, without further agreement between the Lessor and
the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees'
purchaser(s) or assignee(s) at any such sale or upon assignment ofInitial Lessee's interest
by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's
interest has assumed and agreed to carry out any and all covenants and obligations of
Initial Lessee, including but not limited to the construction of the Affordable Housing Units
contemplated herein. In no event shall any protections afforded a( ) leasehold mortgagee(s)
under this Lease be construed to permit eventual use of the Demised Premises for purposes
inconsistent with this Lease or the Affordable Restrictions.
(g) Within ten (10) days after Lessor's receipt of written request by Initial
Lessee or by Initial Lessee's leasehold mortgagee(s), or after receipt of such written request
in the event that upon any sale, assignment or mortgaging ofInitial Lessee's interest in this
Lease by Initial Lessee or Initial Lessee's leasehold mortgagee(s), an offset statement shall
be required from the Lessor, and the Lessor agrees to deliver in recordable form a certificate
to any proposed leasehold mortgagee(s), purchaser(s), assignee(s) or to Initial Lessee,
certifying (if such be the case) (i) that this Lease is in full force and effect; (ii) that the
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Lessor has no knowledge of any default under this Lease, or if any default exists, specifying
the nature of the default; and (iii) that there are no defenses or offsets which are known and
may be asserted by the Lessor against the Lessee with respect to any obligations pursuant
to this Lease.
(h) So long as the Initial Lessee's interestin this Lease shall be mortgaged
to a ( ) leasehold mortgagee(s), the parties agree for the benefit of such leasehold
mortgagee(s), that they shall not surrender or accept a surrender of this Lease or any part of
it, nor shall they cancel, abridge or otherwise modify this Lease or accept material
prepayments of installments of Rent to become due without the prior written consent of
such mortgagee(s) in each instance.
(i) Reference in this Lease to acquisition of the Initial Lessee's interests in
this Lease by the () leasehold mortgagee(s) shall be deemed to refer, where circumstances
require, to acquisition ofthe Initial Lessee's interestin this Lease by any purchaser at a sale
of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold
mortgagee(s) in such instance or instances shall also be applicable to any such
purchaser(s).
G) So long as the Initial Lessee's interest in this Lease shall be mortgaged
to a ( ) leasehold mortgagee(s), the parties agree for the benefit of such leasehold
mortgagee(s) that the Lessor shall not sell, grant or convey to the Initial Lessee all or any
portion of the Lessor's fee simple title to the Demised Premises without the prior written
consent of such leasehold mortgagee(s). In the event of any such sale, grant or conveyance
by the Lessor to the Initial Lessee, the Lessor and the Lessee agree that no such sale, grant
or conveyance shall create a merger of this Lease into a fee simple title to the Demised
Premises. This subparagraph (j) shall not be construed to prevent a sale, grant or
conveyance of the Lessor's fee simple title by the Lessor to any person, firm or corporation
other than the Initial Lessee, its successors, legal representatives and assigns, so long as
this Lease is not terminated.
(k) Reference in this Lease to the Initial Lessee's leasehold mortgagee(s)
shall be deemed to refer where circumstances require to the leasehold mortgagee(s)'s
assignee(s); provided that such assignee(s) shall record proper assignment instruments in
the Public Records of Monroe County, Florida, together with written notice setting forth the
name and address of the assignee(s).
(1) In conjunction and contemporaneously with the sale or transfer of
each Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure
the release of any and all applicable portions of its (their) mortgagees) on the entire
Demised Premises so as to grant clear title to the Sublessee. The details and release
payment requirements shall remain within the reasonable business discretion of the Initial
Lessee and the leasehold mortgagee(s).
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(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of priority with
respect to foreclosable interests or rights according to the laws of the State of Florida or as
contractually agreed by and among multiple mortgagees, where there are such.
Section 1<;.02 Permitted Mortgages for Sublessees (Unit Owners). The individual
Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage
their interests in any Sublease, improvements or any associated portions of the Demised
Premises related to their interests in the individual Affordable Housing Units to a Federal
or State Savings Loan Association, Bank, Trust Company or similar lending institution,
subject to the following requirements:
(a) The mortgagees) encumbering the Affordable Housing Unit shall not
exceed 100% of the maximum allowable sale price of the Affordable Housing Unit as set
forth in the Affordable Restrictions;
(b) Sublessees shall not be entitled to mortgage their respective leasehold
interests in the event the terms of the note, which is secured by the mortgage, may result in
negative amortization, unless otherwise approved by Lessor;
(c) Forinformational and record keeping purposes, Sublessees shall present
to Lessor (i) a copy of approval(s) for loans encumbering their Affordable Housing Unit
within five (5) business days after such loans are approved, and (ii) no sooner than five (5)
business days before the scheduled loan closing date, a copy of the owner's and/or any
lender's title insurance commitment. Lessor's failure to approve or object to any of the
foregoing documents prior to the closing of a relevant loan shall not preclude closing of the
relevant loan and shall not constitute an opinion or confirmation by Lessor that the
corresponding loans or title insurance policies comply with or conform to the requirements
of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of
Lessor's rights to enforce same;
(d) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery
of an assignment or other conveyance to a Sublessee's mortgagee in lieu of foreclosure with
respect to any real property subject to the provisions of this Lease, said mortgagee, or the
purchaser at foreclosure, shall comply with the provisions of Article XII. No sale of any
Affordable Housing Unit shall be permitted at an amount in excess of that allowed under
the Affordable Restrictions and shall otherwise fully comply with all applicable Affordable
Restrictions. Any Affordable Housing Unit accepted in lieu of foreclosure or as to which a
mortgagee intends to foreclose shall be subject to the Lessor's right of first refusal as set
forth in Article 12.05. Nothing herein shall preclude potential purchasers approved by
Lessor from bidding at any foreclosure sale and, where successful, purchasing the subject
Affordable Housing Unit at the foreclosure sale price in accordance with Article XII; and
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(e) The parties recognize that it would be contrary to the fundamental
affordable housing concept of this Lease and an incentive to abuse Sublessee's
authorization to encumber its leasehold interest with a mortgage if Sublessee could realize
more in loan or sale proceeds than their permitted purchase or resale price as a result of
any transaction. Accordingly, Sublessee hereby irrevocably assigns to Lessor (or the
Monroe County Housing Authority or other Lessor designee) any and all net proceeds from
the sale of any interest in the Delnised Premises remaining after payment of costs of
foreclosure and satisfaction of the lien of any mortgage which would have otherwise been
payable to Sublessee, to the extent such net proceeds exceed the net proceeds that
Sublessee would have received had the interests been sold pursuant to the Affordable
Restrictions. Sublessee hereby authorizes and instructs the mortgagee or any party
conducting the closing of a sale or through an unauthorized transfer to pay the amount of
said excess directly to Lessor. In the event, for any reason, such excess proceeds are paid to
Sublessee, Sublessee hereby agrees to promptly pay the amount of such excess to Lessor.
ARTICLE XVI
Default
~on 16.01 Notice of Default. Lessee shall not be deemed to be in default under
this Lease in the payment of Rent or the payment of any other monies as herein required
unless Lessor shall first give to Lessee ten (10) days written notice of such default and
Lessee fails to cure such default within ten (10) days of receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section, Lessee shall not be deemed to be in default under this Lease unless Lessor shall
first give to Lessee thirty (30) days written notice of such default, and Lessee fails to cure
such default within the immediate thirty (30) day period thereafter, or, if the default is of
such a nature that it cannot be cured within thirty (30) days, Lessee fails to commence to
cure such default within such period of thirty (30) days or fails thereafter to proceed to the
curing of such default with all possible diligence.
Regardless of the notice and cure periods provided herein, in the event that more
rapid action is required to preserve any right or interest of the Lessor in the Delnised
Prelnises or other detrimental occurrence (such as, but not limited to, payment of
insurance premiums, actions to prevent construction or judgment lien foreclosures or tax
sales), then the Lessor is empowered to take such action and to request reimbursement or
restoration from the Lessee as appropriate.
Section 16.02 Default. In the event of any material breach of this Lease by Lessee,
Lessor, and after the necessary notice provided to Initial Lessee's leasehold mortgagee(s), in
addition to the other rights or remedies it may have, shall have the immediate right to
terminate this Lease according to law. Termination of the Lease, under such
circumstanl;es, shall constitute effective, full and immediate conveyance and assignment to
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Lessor of aU of the Demised Premises, improvements and materials and redevelopment
rights to and associated with the Demised Premises and the Project, subject to mortgagee
protection as provided herein. Furthermore, in the event of any breach of this Lease by
Lessee, Lessor, in addition to the other rights or remedies it may have, shall have the
immediate right of re-entry and may remove all persons and personal property from the
affected pOltions of the Demised Premises. Such property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of Lessee, or where
statutory abandonment or unclaimed property law permits, disposed ofin any reasonable
manner by Lessor without liability or any accounting therefore.
Included in this right of reentry shall be any instance wherein a Sublessee renounces
the Lease or a Sublease or abandons the Demised Premises, in which case Lessor may, atits
option, in an appropriate case and subject to any rights of a mortgage holder, obtain
possession of the abandoned property in any manner allowed or provided by law, and may,
at his option, re-let the repossessed property for the whole or any part of the then
unexpired term, receive and collect all Rent payable by virtue of such reletting, and hold
Sublessee liable for any difference between the Rent that would have been payable under
this Lease and the net Rent for such period realized by Lessor, by means of such reletting.
However, such Lessor rights shall not abrogate a mortgagee's rights to the extent those
rights do not conflict with or injure Lessor's interests as established under this Lease.
Personal property left on the premises by a Sublessee may be stored, sold, or disposed of by
Lessor, and Lessor accepts no responsibility other than that imposed by law.
Should Lessor elect to re-enter, as herein provided, or should Lessor take possession
pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may
either terminate this Lease or it may from time to time, without terminating this Lease, re-
let the Demised Premises or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such Rent or Rents and on such
other terms and conditions as Lessor in its sole reasonable discretion may deem advisable
with the right to make alterations and repairs to the Demised Premises. On each such
re-Ietting Lessee shall be immediately liable to pay to Lessor, in addition to any
indebtedness other than Rent due under this Lease, the expenses of such re-Ietting and of
such alterations and repairs, incurred by Lessor, and the amount, if any, by which the Rent
reserved in this Lease for the period of such re-Ietting (up to but not beyond the term of this
Lease) exceeds the amount agreed to be paid as Rent for the Demised Premises for such
period of such re-Ietting.
Notwithstanding any such re-Ietting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach. Should Lessor at anytime
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach, including the cost
of recovering the Demised Premises, which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.0'-l Lessor's Right to Perform. In the event that Lessee, by failing or
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neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty
(30) days after receipt of written notice from Lessor specifying the nature of the act or thing
to be done or performed, then Lessor may, but shall not be required to, do or perform or
cause to be done or performed such act or thing (entering on the Demised Premises for
such purposes, with notice, if Lessor shall so elect), and Lessor shall not be or be held liable
or in any way responsible for any loss, inconvenience or annoyance resulting to Lessee on
account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof,
including compensation to the agents and employees of Lessor. Any act or thing done by
Lessor pursuant to the provisions of this section shall not be construed as a waiver of any
such default by Lessee, or as a waiver of any covenant, term or condition herein contained
or the performance thereof, or of any other right or remedy of Lessor, hereunder or
otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this
Lease, if not paid when the amounts become due as provided in this Lease, shall bear
interest from the date they become due until paid at the highest rate allowed by law. Lessor
shall have the same rights set forth in this Section with respect to any future subinterest
holder's respective portion of the Demised Premises.
Section 16.04 Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.0"'. Affordable Restrictions. In the event any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion, or if Lessee or any Sublessees fail to comply with the Affordable Restrictions, as
they pertain to their respective interests in or portions of the Demised Premises, such an
occurrence will be considered a material default by the offending party. In the foregoing
event, Lessor (or the Initial Lessee (or its assigns) in the event of and with respect only to a
default by a particular Sublessee) may immediately terminate the Lease or Sublease. Lessee
hereby agrees that all occupants shall use the Leased Premises and Improvements for
affordable residential purposes only and any incidental activities related to the residential
use as well as any other uses that are permitted by applicable zoning law and approved by
Lessor.
ARTICLE XVII
Repair Obligations
Section 17.01 Repair Obligations. During the continuance of this Lease the
Lessee, and every Sublessee with respect to their leased or purchased portions of the
Demised Premises, shall keep in good state of repair any and all buildings, furnishings,
fixtures, landscaping and equipment which are brought or constructed or placed upon the
Demised Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste
or neglect of any building or other property to be committed, except for that of normal wear
and tear. The Lessee will repair, replace and renovate such property as often as it may be
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necessary in order to keep the buildings and other property which is the subject matter of
this Lease in first class repair and condition. Additionally, Lessor shall not be required to
furnish any services or facilities, including but not limited to heat, electricity, air
conditioning or water or to make any repairs to the premises or to the Affordable Housing
Units.
ARTICLE XVIII
Additional Covenants of Lessee/Lessor
Section 18.01 Legal Use. The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of a multi-unit
affordable housing complex and the other matters as may be set forth in this Lease, with
related amenities and facilities, and for no other purposes whatsoever without Lessor's
written consent.
Section 18.02 Termination. Upon termination of this Lease, the Lessee will
peaceably and quietly deliver possession of the Demised Premises, unless the Lease is
extended as provided herein. Therefore, Lessee shall surrender the improvements together
with the leased premises. Ownership of some or all improvements shall thereupon revert to
Lessor.
Section 18.0~ Recovery of Litigation Ex;pense. In the event of any suit, action or
proceeding, at law or in equity, by either of the parties hereto against the other, or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease, including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys' fees including appellate, bankruptcy and post-judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Affordable Restrictions from any person or persons from or to whom a
demand or enforcement request is made, regardless of actual initiation of an action or
proceeding.
Section 18.04 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as-is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
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The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
Lessor as to the nature, condition or usability of the Demised Premises, or the uses to
which the Demised Premises may be put. The Lessor shall not be responsible for any latent
defect or change of condition in the improvements and personalty, or of title, and the Rent
hereunder shall not be withheld or diminished on account of any defect in such title or
property, any change in the condition thereof, any damage occurring thereto, or the
existence with respect thereto of any violations of the laws or regulations of any
governmental authority.
Section l8.0f> Hazardous Materials. Lessee, its Sublessees and assignees shall not
permit the presence, handling, storage or transportation of hazardous or toxic materials or
medical waste ("hazardous waste") in or about the Demised Premises, except in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines of any
government agency having jurisdiction and the applicable board ofinsurance underwriters.
In no event shall hazardous waste be disposed of in or about the Demised Premises. For
purposes herein, the term hazardous materials or substances shall mean any hazardous,
toxic or radioactive substance material, matter or waste which is or becomes regulated by
any federal, state or local law, ordinance, order, rule, regulation, code or any other
governmental restriction or requirement and shall include petroleum products and
asbestos as well as improper or excessive storage or use of common household cleaning and
landscaping chemicals, pesticides, batteries and the like, and those materials defined as
hazardous substance or hazardous waste in the Comprehensive Environmental Response
Compensation and Liability Act and/or the Resource Conservation and Recovery Act.
Lessee shall notify Lessor immediately of any discharge or discovery of any
hazardous waste at, upon, under or within the Demised Premises. Lessee shall, at its sole
cost and expense, comply with all remedial measures required by any governmental agency
having jurisdiction.
Lessor and Initial Lessee hereby warrant and represent that to the best of their
knowledge, the Demised Premises is free of any hazardous waste.
Section 18.06 Recordation. Lessee, within five (5) business days after execution of
this Lease, shall record a complete, true and correct copy of the Lease and any addenda or
exhibits thereto and any Related Agreement(s) in the Public Records of Monroe County,
Florida and shall provide Lessor with the written Clerk's receipt of the book and page
number where recorded and the original Lease and Related Agreement(s) after recordation.
ARTICLE XIX
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Representations. Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Pw:pose or Use
Section 1Q.01 Representations. Warranties of Title and ~uiet Enioyment. Lessor
represents and warrants that to its knowledge, there are no material claims, causes of action
or other proceedings pending or threatened in respect to the ownership, operation or
environmental condition of the Demised Premises or any part thereof. Additionally, the
Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of
the covenants and conditions required by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continued possession of the Demised Premises from
claims by Lessor.
Section 1Q.02 No Unlawful or Immoral Pw:pose or Use. The Lessee will not use or
occupy said premises for any unlawful or immoral purpose and will, at Lessee's sole cost
and expense, conform to and obey any present or future ordinance and/or rules,
regulations, requirements and orders of governmental authorities or agencies respecting
the use and occupation of the Demised Premises.
ARTICLE XX
Miscellaneous
Section 20.01 Covenants Running with Land. All covenants, promises, conditions
and obligations contained herein or implied by law are covenants running with the land
and, except as otherwise provided herein, shall attach and bind and inure to the benefit of
the Lessor and Lessee and their respective heirs, legal representatives, successors and
assigns, though this provision shall in no way alter the restrictions on assignment and
subletting applicable to Lessee hereunder. The parties agree that all covenants, promises,
conditions, terms, restrictions and obligations arising from or under this Lease and the
Affordable Restrictions benefit and enhance the communities and neighborhoods of
Monroe County and the private and public lands thereof, and have been imposed in order
to assure these benefits and enhancements for the full Term of this Lease. It is intended,
where appropriate and to serve the public purposes to be furthered by this Lease, that its
provisions be construed, interpreted, applied and enforced in the manner of what is
commonly referred to as a "deed restriction."
Section 20.02 No Waiver. Time is of the essence in the performance of the
obligations of the parties hereto. No waiver of a breach of any of the covenants in this Lease
shall be construed to be a waiver of any succeeding breach of the same covenant.
Section 20.0~ Written Modifications. No modification, release, discl1arge or waiver
of any provisions hereof shall be of any force, effect or value unless in writing signed by the
Lessor and Lessee, or their duly authorized agents or attorneys.
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Section 20.04 Entire Agreement. This Lease, including the Preamble and any
written addenda and all exhibits hereto (all of which are expressly incorporated herein by
this reference) shall constitute the entire agreement between the parties with respect to this
instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20.0"' Notices. If either party desires to give notice to the other in
connection with and/or according to the terms of this Lease, such notice shall be given by
certified mail return receipt requested or by national overnight tracked and delivery-receipt
courier service, and unless otherwise required to be "received", it shall be deemed given
when deposited in the United States mails or with the courier service with postage or
courier fees prepaid. Nothing herein contained shall be construed as prohibiting the
parties respectively from changing the place at which notice is to be given, or the addition
of one additional person or location for notices to be given, but no such change shall be
effective unless and until it shall have been accomplished by written notice given in the
manner set forth in this Section. Notification to Lessor shall be as set forth herein, to both
of the following offices, unless a different method is later directed as prescribed herein or by
the Affordable Restrictions:
Monroe County Attorney
PO Box 1026
Key West, Florida 33041
Tel. 305-292-3470
Director - Monroe County Division of
Housing & Community Development
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 200
Marathon, Florida 33050
Tel. 305-289-6002
Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee)
consist of more than one person, such persons shall be jointly and severally liable on the
covenants of this Lease.
Section 20.07 Liability Continued. Lessor Liability. All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment. In addition, the Lessor's liability under this Lease, unless specifically
dealt with differently herein, shall be at all times limited to the Lessor's interest in the
Demised Premises.
Section 20.08 Captions. The captions used in this Lease are for convenience of
reference only and in no way define, limit or describe the scope or intent of or in any way
affect this Lease.
Section 20.0Q Table of Contents. The index preceding this Lease under the same
cover is for the purpose of the convenience of reference only and is not to be deemed or
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construed in any way as part of this Lease, nor as supplemental thereto or amendatory
thereof.
Section 20.10 Governing Law. Venue. This Agreement shall be construed under the
laws of the State of Florida, and the venue for any legal proceeding to enforce or determine
the terms and conditions of this Lease shall be Monroe County, Florida.
Section 20.11 Holding Over. Any holding over after the expiration of the Term of
this Lease, with consent of Lessor, shall be construed to be a tenancy from month to month,
at twice the monthly Rent as required to be paid by Lessee for the period immediately prior
to the expiration of the Term hereof, and shall otherwise be on the terms and conditions
herein specified, so far as applicable.
Section 20.12 Brokers. Lessor and Lessee covenant, warrant and represent that no
broker was instrumental in consummating this Lease, and that no conversations or
negotiations were had with any broker concerning the renting of the Demised Premises.
Lessee and Lessor agree to hold one another harmless from and against, and agree to
defend atits own expense, any and all claims for a brokerage commission by either of them
with any brokers.
Section 20.1'1 Partial Invalidity. If any provision of this Lease or the application
thereof to any person or circumstance shall at any time or to any extent be held invalid or
unenforceable, the remainder of this Lease or the application of such provision to persons
or circumstances other than those as to which it is held invalid or unenforceable shall not
be affected thereby.
Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented
from the performance of any act required hereunder by reason of strikes, lockouts, labor
trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or
other severe weather events, war or other reasons of like nature not the fault of the party
delayed, in performing work or doing acts required under this Lease, the period for the
performance of any such act shall be extended for a reasonable period.
Section 20.15 Lessor/Lessee Relationship. Non-Reliance by Third Parties. This
Lease creates a lessor/lessee relationship, and no other relationship, between the parties.
This Lease is for the sole benefit of the parties hereto and, except for assignments or
Subleases permitted hereunder and to the limited extent thereof, no other person or entity
shall be a third party beneficiary hereunder. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Lease to enforce or attempt to enforce any third-
party claim or entitlement to or benefit of any service or program contemplated hereunder,
and the Lessor and the Lessee agree that neither the Lessor nor the Lessee or any agent,
officer, or employee of either shall have the authority to inform, counsel, or otherwise
indicate that any particular individual or group of individuals, entity or entities, have
entitlements or benefits under this Lease separate and apart, inferior to, or superior to the
community in general or for the purposes contemplated in this Lease.
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Section 20.16 Contingencies. This Lease Agreement is contingent upon Initial
Lessee obtaining construction financing; all necessary permits to build the Affordable
Housing Units described herein; as well as Initial Lessee obtaining adequate access for the
Unit Owners to access their Affordable Housing Units at all times. Therefore, in the event
Initial Lessee is unable to obtain financing, permits or adequate access within the time for
performance set forth herein, Initial Lessee may terminate this Lease. Termination of the
Lease under such circumstances shall constitute effective, full and immediate conveyance
and assignment to Lessor of all of the Demised Premises, improvements and materials and
redevelopment rights to and associated with the Demised Premises and the Project, subject
to mortgagee protection as provided herein. Initial Lessee hereby acknowledges that in the
event Initial Lessee terminates this Agreement, Initial Lessee will not receive a
reimbursement from Lessor for costs incurred by Initial Lessee prior to such termination.
Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient quantities, may pose 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. Additional information regarding radon and
radon testing may be obtained from your county health unit. Lessor shall not be
responsible for radon testing for any persons purchasing, leasing or occupying any portion
of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor
harmless and indemnify Lessor for damages or claims related thereto and releases Lessor
from same.
Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in Monroe
County. There are no measures that can guarantee against mold, but additional
information regarding mold and mold prevention and health effects may be obtained from
your county health unit or the EP A or CDC. Lessee and Sublessees accept responsibility to
inspect for mold and take measures to reduce mold. Lessor shall not be responsible for
mold testing for any persons purchasing, leasing or occupying any portion of the Demised
Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indenmify
Lessor for damages or claims related thereto and releases Lessor from same.
Section 20.1Q Subsequent Changes in Law or Regulation. Where a change can
reasonably be applied to benefit, enhance or support Lessor's affordable housing goals,
objectives and policies, Lessor shall have the right to claim the benefit from any subsequent
change to any applicable state or federal law or regulation that might in anyway affect this
Lease, the Affordable Restrictions, any Related Agreements or their respective application
and enforceability, without limitation. In such instance, this Lease shall be construed or,
where necessary, may be reformed to give effect to this provision, but such construction
shall not permit a fundamentally inequitable result for any party.
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Section 20.20 Government Pur:pose. Lessor, through this Lease and the Affordable
Restrictions, furthers a government housing purpose, and, in doing so, expressly reserves
and in no way shall be deemed to have waived, for itself or its assigns, successors,
employees, officers, agents and representatives any sovereign, quasi-governmental and any
other similar defense, immunity, exemption or protection against any suit, cause of action,
demand or liability.
Section 20.21 Breach of Related Agreements/Remedies. To the extent that any
purchase and sale or Related Agreement relating to the Demised Premises incorporates,
relates to and/or is contingent upon the execution of and/or any performance under this
Lease, any material breach under such other agreement shall be a material breach of this
Lease and any material breach under this Lease shall be a material breach of such other
agreement. Moreover, the parties agree that any remedy available for any breach under this
Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's
complete discretion, with any election to avail itself or proceed under any particular
remedial mechanism in no way to be construed as a waiver or relinquishment of Lessor's
right to proceed under any other mechanism at any time or in any particular sequence.
Section 20.22 Sup.plemental Administrative Enforcement. Lessor, or its
appropriate agency, may establish under the Affordable Restrictions, as amended from time
to time during the Term of this Lease, such rules, procedures, administrative forms of
proceedings and such evidentiary standards as deemed reasonable within Lessor's
legislative prerogative, to implement enforcement of the terms of this Lease and the
Affordable Restrictions. Such forunls may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and
only by way of one example, and not as any limitation, the facts and legal effect of an
allegedly unauthorized "offer to rent", or, for another example, an unauthorized
"occupancy." However, nothing herein shall be deemed to limit Lessor, Initial Lessee or
any mortgagee from access to an appropriate court of competent jurisdiction where the
resolution of any dispute would be beyond the competence or lawful jurisdiction of any
administrative proceeding.
Section 20.2~ Exceptions to Lease/Rental Prohibition. In addition to privileges
recognized herein for Initial Lessee and certain "bulk" purchasers, which are not hereby
restricted, Lessor or its designee, in its sole discretion, shall have the right to adopt as part
of future Affordable Restrictions provisions to allow Sublessees the limited privilege to rent
or lease their Affordable Housing Units to qualified persons. Requests for such approval
shall be made in accordance with such procedures Lessor may in the future choose to
adopt. It is eontemplated, though not promised or required, that certain limited rental
provisions may be adopted in the future for circumstances such as, for example, but
without limitation:
(a) A Sublessee's required absence from the local area for official military duty.
(b) An illness that legitimately requires a Sublessee to be hospitalized for an
Page 43 of 53
Doell 1606283
Bk~ 2242 Pg~ 797
extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty (30) days.
Lessor, in its discretion, shall have the right to amend, modify, extend, decrease or
terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at
any time.
Section 20.24 Drafting of Lease and any Related Agreement. The parties
acknowledge that they jointly participated in the drafting of this Lease and any Related
Agreements with the benefit of counsel, or had the opportunity to receive such benefit of
counsel, and that no term or provision of this Lease or a Related Agreement shall be
construed in favor of or against either party based solely on the drafting of this Lease or the
Related Agreement.
Section 20.20:; Lessor's Duty to Cooperate. Where required under this Lease or
Related Agreement, Lessor shall, to ensure the implementation of the public affordability
purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee,
Sublessees, mortgagees, title insurers, closing agents, government agencies and the like
regarding any relevant terms and conditions contained herein.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written. ?
~
CA;:(."IJJ)j
By:
h
Page 44 of 53
RY D. SANDERS n:l' f)~
ISTANT COUNTY ATTO
ERICA N. HUGHES
Page 45 of 53
Doell 1606283
Skll 2242 PglI 798
EXHIBIT "p,:'
Doell 1606283
Bkll 2242 PglI 799
LEGAL DESCRIPTION
Lots I-IS, inclusive of Block 2 oftltc AMENDED PLAT LINCOLN MANOR ESTATES, Stock Island,
Monroe COunly, Florida, according to the Plat thereof, as recorded in Plat Book 5, Page 62, of the Public
Records ofMonroc County, Florida.
Page 46 of 53
Doell 1606283
Skll 2242 Pgll 800
EXHIBIT "B"
DEPICTION OF PROJECT LAYOUT
I III j i I I'll I I i ,t : ,2t~eo: ~1r~ I
,. .t~, _ J..J'-:! I.. ~L"':".L.::_-,-:~L I.. ! ..J
5~ ~~1
- .... ....... - .... ....It -A\IE. ~ - .oIL - . ... ... ,_
IT 111....j rrllT] . rr~rl r': 'llL---i"r:lT il,l_ f"
L.. "&T'" 'LL.L__-,-..._._L~".;,.' ,,,-~~__.._.c.i......L:__: I ;
SIXTH Lmcoin Manor ESI AVE.., Ii
,131110 13111,0' 13ft1lO 131:100 131210 UIl1\ll)1UO.. !JIm 131:110 \.lIMO 131210 131. UUto unoo 1J1~jo
'" . "I
,
. 7TH ____~_ AVE 'I
.... .......~.,.".;. ..."""'.. ~................ -............. - -: .
"illfll"j i. iflllf1li: irlll1lIiIIli II i 11:i Iii ~ r II'
~ - -~~~. ~, ~, - ~ ,. J ~ -, _I - - - - I - ' - ' . I _ _ _
r'-!:H-~' *'. *'r~ -~ 1 :;~ '~ ...' " .~~-Li;L _lIoil_I-6oL,~
Iii!; &;'I:;'lj51118 ~imp. ii ~li'jjl~llili
_<'a ,.., IJL.!. l ;1 '1 I ,1 ",. ., -ul'" ,- " "" [..Loll i-'~ .j ,( I ..1
1~~jrifi!it!1ri [i;1;~trti:i~1f~- it t'1! 1i;i":1 '~
. '....1-'1)..\ .",,, l...JKI,,,,"L.!.i,_! ;i".!:[.J'4".i._J.~i ..-"..AI ('
,: - , ,,~;, ,I "" - , f
- - - I i
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,
,
,
Page 47 of 53
Doell 1606283
Bkll 2242 Pgll 801
This Instrument Prepared By:
JERRY COLEN[AN, PL.
201 Front Street, Suite 203
Key West, Florida 33040
EXHmIT "C"
CO~ENCEMENTDATEAGREEMENT
This Agreement tS made as of
("Lessor") and
200
by and between
("Lessee").
WHEREAS, Lessor and Lessee have entered into a Lease dated , 200_ for
Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book _ Page
----' along with a Related Agreement, that certain Agreement for Sale and Purchase, dated --'
200-, recorded at Book_Page _ all of the Public Records of Monroe County, Florida.
WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has
occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the
Lease.
NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth
below is true and accurate.
Commencement Date:
,200_
Initial Term E)([Jiration Date:
,210_
The execution of this Agreement shall not constitute an exercise by Lessee of its option with
respect to any Extended Term.
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR:
LESSEE:
By:
its
By:
its
Witness I
Witness 1
Witness 2
Witness 2
Page 48 of 53
Y D. SANDERS 7.tfM .
ASSISTANT COUNTY ATTOR ~ d ~
Doell 1606283
Bkll 2242 PglI 802
EXHIBIT "D"
Term Portion ~ Rent Term Portion ~ BIIlI
Lease Year 1 Aug 1 2006 $10.00 Lease Year 51 Aug 1 2056 $10.00
Lease Year 2 Aug 1 2007 $10.00 Lease Year 52 Aug 1 2057 $10.00
Lease Year 3 Aug 1 2008 $10.00 Lease Year 53 Aug 1 2058 $10.00
Lease Year 4 Aug 1 2009 $10.00 Lease Year 54 Aug 1 2059 $10.00
Lease Year 5 Aug 1 2010 $10.00 Lease Year 55 Aug 1 2060 $10.00
Lease Year 6 Aug 12011 $10.00 Lease Year 56 Aug 1 2081 $10.00
lease Year 7 Aug 1 2012 $10.00 Lease Year 57 Aug 1 2062 $10.00
lease Year 8 Aug 1 2013 $10.00 Lease Vear 58 Aug 1 2063 $10.00
Lease Year 9 Aug 1 2014 $10.00 lease Year 59 Aug 1 2084 $10.00
Lease Year 10 Aug 1 2015 $10.00 Lease Year 60 Aug 1 2065 $10.00
Lease Vear 11 Aug 1 2016 $10.00 Lease Year 61 Aug 1 2066 $10.00
Lease Year 12 Aug 1 2017 $10.00 Lease Year 62 Aug 1 2087 $10.00
Lease Year 13 Aug 1 2018 $10.00 Lease Year 63 Aug 1 2088 $10.00
Lease Year 14 Aug 1 2019 $10.00 Lease Year 64 Aug 1 2069 $10.00
Lease Year 15 Aug 1 2020 $10.00 lease Vear 85 Aug 1 2070 $10.00
Lease Year 16 Aug 1 2021 $10.00 Lease Year 66 Aug 1 2071 $10.00
Lease Year 17 Aug 1 2022 $10.00 Lease Year 67 Aug 1 2072 $10.00
Lease Year 18 Aug 1 2023 $10.00 Lease Year 68 Aug 1 2073 $10.00
Lease Year 19 Aug 1 2024 $10.00 Lease Vear 69 Aug 1 2074 $10.00
Lease Vear 20 Aug 1 2025 $10.00 Lease Year 70 Aug 1 2075 $10.00
lease Year 21 Aug 1 2026 $10.00 Lease Year 71 Aug 1 2078 $10.00
Lease Year 22 Aug 1 2027 $10.00 Lease Year 72 Aug 1 2077 $10.00
Lease Year 23 Aug 1 2028 $10.00 Lease Year 73 Aug 1 2078 $10.00
Lease Year 24 Aug 1 2029 $10.00 Lease Year 74 Aug 1 2079 $10.00
Lease Year 25 Aug 1 2030 $10.00 Lease Year 75 Aug 1 2080 $10.00
Lease Year 26 Aug 1 2031 $10.00 Lease Year 76 Aug 1 2081 $10.00
Lease Year 27 Aug 1 2032 $10.00 Lease Year 77 Aug 1 2082 $10.00
Lease Yeer 28 Aug 1 2033 $10.00 Lease Yeer 78 Aug 1 2083 $10.00
Lease Yeer 29 Aug 1 2034 $10.00 Lease Year 79 Aug 1 2084 $10.00
Lease Year 30 Aug 1 2035 $10.00 Lease Year 80 Aug 1 2085 $10.00
Lease Year 31 Aug 1 2038 $10.00 Lease Year 81 Aug 1 2088 $10.00
Lease Year 32 Aug 1 2037 $10.00 Lease Year 82 Aug 1 2087 $10.00
Lease Year 33 Aug 1 2038 $10.00 Lease Year 83 Aug 1 2088 $10.00
Lease Year 34 Aug 1 2039 $10.00 Lease Year 84 Aug 1 2089 $10.00
Lease Year 35 Aug 1 2040 $10.00 Lease Year 85 Aug 1 2090 $10.00
Lease Year 36 Aug 1 2041 $10.00 Lease Year 86 Aug 1 2091 $10.00
Lease Year 37 Aug 1 2042 $10.00 Lease Year 87 Aug 1 2092 $10.00
Lease Year 38 Aug 1 2043 $10.00 Lease Year 88 Aug 1 2093 $10.00
Lease Year 39 Aug 1 2044 $10.00 Lease Year 89 Aug 1 2094 $10.00
Lease Year 40 Aug 1 2045 $10.00 Leese Year 90 Aug 1 2095 $10.00
Lease Year 41 Aug 1 2048 $10.00 Lease Year 91 Aug 1 2096 $10.00
Lease Year 42 Aug 1 2047 $10.00 Lease Year 92 Aug 1 2091 $10.00
Lease Year 43 Aug 1 2048 $10.00 Lease Year 93 Aug 1 2098 $10.00
Lease Year 44 Aug 1 2049 $10.00 Lease Year 94 Aug 1 2099 $10.00
Page 49 of 53
00,,11 1606283
Bk~ 2242 Pg~ 803
Lease Year 45 Aug 1 2050 $10.00 Lease Year 95 Aug 1 2100 $10.00
Lease Year 46 Aug 1 2051 $10.00 Lease Year 96 Aug 1 2101 $10.00
Lease Vear 47 Aug 1 2052 $10.00 Lease Year 97 Aug 1 2102 $10.00
lease Year 48 Aug 1 2053 $10.00 Lease Year 98 Aug 1 2103 $10.00
Lease Year 49 Aug 1 2054 $10.00 Lease Year 99 Aug 1 2104 $10.00
lease Year 50 Aug 1 2055 $10.00
Page 50 of 53
Doell 1606283
Bkll 2242 Pgll 804
EXHmIT "E"
LETTER OF ACKNOWLEDGEMENT
TO: Initial Lessee, or its assigns
Address ofInitial Lessee, or its assigns
DATE:
This letter is given to (... ..Initial Lessee....) as an acknowledgement in regard to the
Affordable Housing Unit that I am purchasing. I hereby acknowledge the following:
. That I meet the requirements set forth in the Affordable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my, future similarly situated persons
and Monroe County's benefits.
. That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore I will be subleasing a parcel ofland.
. That my legal counsel, ' has explained to me the
terms and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction.
. That I understand the terms of the Lease and how the terms and conditions set
forth therein will affect my rights as an owner of the Affordable Housing Unit, now
and in the future.
. That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I
understand and agree for myself and my successors in interest that Monroe County
may change some of the Affordable Restrictions over the 99-year term of the
Lease and that I will be expected to abide by any such changes.
. That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
. That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it to and that the timing and procedures for sales will be restricted.
. That my lease prohibits me from severing the improvements from the real
property.
. That my family and I must occupy the Affordable Housing Unit and that it cannot
be rented to third parties without the written approval of the Lessor.
. I understand that in the event that I die, my home may be devised and occupied by
my wife, my children or any other heirs so long as they meet the requirements for
Page 51 of 53
DOCIl 1606283
Skll 2242 Pgll 805
affordable housing as set forth in the Lease.
· That I have reviewed the terms of the Lease and transaction documents and that I
consider said terms fair and necessary to preserve affordable housing and of special
benefit to me.
· I hereby warrant that I have not dealt with any broker other than
in connection with the consummation of the
purchase of the Affordable Housing Unit.
Page 52 of 53
This modification or
additional condition
shall:
-X NOT APPLY
APPLY
to this Lease.
Doell 1606283
Bk~ 2242 Pg~ 806
EXHIBIT "F"
Modified or Additional Conditions
Section 12.02 Initial Sale/Lease of Unit Bv Develooer/Initial Lessee
rADDITIONAL PROVISIONl. Initial Lessee acknowledges that there shall be
reserved by this Lease a right of first refusal in favor of Lessor to purchase or
designate purchasers for any Affordable Housing Units offered for sale or lease.
Initial Lessee shall provide Lessor with written notice of its intent to commence
marketing efforts and Lessor shall have ninety (90) days from the date of
Lessor's receipt of the notice to enter into a reservation agreement with Initial
Lessee for the purchase/lease of all or a portion of the Affordable Housing Units,
unless Initial Lessee has been authorized, in writing (which the omission ofthis
provision may itself constitute), by Lessor to sell the Affordable Housing Units to
individuals otherwise qualified to own/rent the Affordable Housing Units and
subject to all other affordable housing covenants of record. Notwithstanding
anything contained herein to the contrary, all purchasers/lessees of such
Affordable Housing Units shall meet Lessor's requirements of moderate or lesser
income affordable housing, adjusted for family size, and any other applicable
Affordable Restrictions.
MONROE COUNTY
OFFICIAL RECORDS
Page 53 of 53
AMERICAN LAND TITLE ASSOCIA TION
OWNER'S POLICY
(10-17-92)
Policy No. FU057-46-06-366-JT-2006.72I 0609-72667592
CHICAGO TITLE INSURANCE COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN
SCHEDULE B AND THE CONDITIONS, AND STIPULATIONS, CHICAGO TITLE INSURANCE COMPANY, a Missouri
corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding
the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of:
1. Tltlc~ to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company w1ll also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the
extent provided in the Conditions and Stipulations.
In Witness Whereof: CHICAGO TITLE INSURANCE COMPANY has caused this policy to be signed and sealed as of Date of
Policy shown in Schedule A, the policy to become valid when countersigned by an authorized slgnatory.
CHICAGO TITLE INSURANCE COMPANY
FL3057 06-366-JT
Spottswood, Spottswood &. Spottswood
500 Fleming Street
Key West, FL 33040
Tel:(305) 294-9556
Fax:(305) 292-1982
By, ~~ /Li'~ '-
. -4?~
,
~ ~I
xuft,(JUiy;X17 L Lt (
u ed Signature ,
Erica N. Hughes-Sterling, Esq i
Reorder Fonn No. 82]8 (Reprinted 10/00) (72]0609)
AL T A Owner's Policy (10-17-92) with Florida Modifications
Chicago Title Insurance Company
OWNER'S POLICY
Schedule A
Policy No.:
7210609-72667592
Effective Date:
10/04/06@ 8:29 a.m.
Agent's File Reference:
06-366-ET
Amount oflnsurance: $1,690,000.00
1. Name oflnsured: Monroe County, a political subdivision of the State of Florida
2. The estate or interest in the land described herein and which is covered by this policy is a fee simple (if other, specify
same) and is at the effective date hereof vested in the named insured as shown by instrnrnent recorded in Official
Records Book 2242, Page 753, of the Public Records of Monroe County, Florida.
3. The land referred to in this policy is described as follows:
Lots 1-15, inclusive of Block 2 of the AMENDED PLAT LINCOLN MANOR ESTATES, Stock Island,
Monroe County, Florida, according to the Plat thereof, as recorded in Plat Book 5, Page 62, of the Public
Records of Monroe County, Florida.
Agent No.: 10-2472-02
Issuing Agent:
Spottswood, Spottswood & Spottswood
500 Fleming Street
Key West, FL 33040
-,
htuAf7
(
Agent's S gn
Erica N. Hughes- terUng
Attorney at Law
Form OPM-SCH. A
(rev. 1/98)
DoubleTime@
Chicago Title Insurance Company
OWNER'S POLICY
Schedule B
Policy No.:
7210609-72667592
Agent's File Reference:
06-366-ET
This policy does not insure against loss or damage by reason of the following exceptions:
1. Taxes for thl~ year of the effective date of this policy and taxes or special assessments which are not shown as existing
liens by the public records.
2. Rights or claims of parties in possession not shown by the public records.
3. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate
survey and inspection of the premises.
4. Easements or claims of easements not shown by the public records.
5. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not
shown by the public records.
6. Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the lands insured
hereunder, including submerged, filled and artificially exposed lands, and lands accreted to such lands.
7. State law under Chapter 76-190 and Chapter 22FS.02 of the Florida Administrative Code for Land Planning for the
Florida Keys Area of Critical State Concern, recorded in Official Records Book 66S, Page 43, of the Public Records of
Monroe County, Florida.
S. Subject to County Ordinance 10-77, providing for annual levy of garbage and trash collection fees to be assessed upon
this parcel onand.
9. This Policy does not insure riparian or littoral rights and water privileges incident to ownership of subject property.
10. Subject to House Bill No. 634, Chapter 70-231, an Act relating to the bureau of beaches, shores and coastal
construction; amending Chapter 161, Florida Statutes, by adding Section 161.052; providing a setback line for coastal
construction and excavation; providing for the granting of variances by the Department of Natural Resources;
providing penalties; and providing an effective date.
II. Subject to the rights of the State of Florida and the United States to regulate the use of the navigable waters.
12. This Policy excludes from coverage adverse ownership claims by the State of Florida to those portions of the property
described in Schedule A herein that comprise sovereignty lands (including without limitation submerged, filled and
artificially exposed lands) that (i) have not been previously conveyed or transferred by the state, or (ii) are legally
excluded from prior state conveyances of other types of lands.
13. The premises herein described being artificially filled land in what was formerly navigable waters, it is subject to any
and all rights of the United States Government and of the State of Florida arising by reasons of the United States
Government control over navigable waters in the interest of navigation and commerce and the inalienable rights of the
State of Florida in lands and/or waters of such character.
14. Subject to AICUZ Zoning exception as set forth in Resolution as to high noise or high hazard area recorded in Official
Records Book 7S7, at Page 234, of the Public Records of Monroe County, Florida.
IS. Title to personal property is not insured.
16. Dedications as contained on the Plat of AMENDED PLAT LINCOLN MANOR ESTATES recorded in Plat Book 5,
page 62 of the Public Records of Monroe County, Florida.
17. Subject to terms of the Lease between Monroe County "Lessor" and Park Village, LLC "Lessee" recorded on October
4,2006 in Official Records Book 2242 at Page 754 of the Public Records of Monroe County, Florida.
IS. Amended and Restated Mortgage and Security Agreement between Park VIllage, LLC, a Florida limited liability
company and Orion Bank, a Florida banking corporation dated September 27,2006 and recorded on October 4,2006
in Official Records Book 2242 at Page S07 of the Public Records of Monroe County, Florida.
19. State of Florida Uniform Commerical Code Financing Statement Amendment Form amending that certain UCC
Statement bewteen Park VIllage, LLC and Orion Bank, filed in O.R.B. 2223 at Page 1213 of the Public Records of
Monroe County, Florida.
Form OPM-SCH. B
(rev. 5/94)
DoubleTime@
Chicago Title Insurance Company
OWNER'S POLICY
Schedule B (Continued)
Policy No.:
7210609-72667592
Agent's File Reference:
06-366-ET
20. Notice of Commencement between Park Village, LLC, and Salinero Enterprises, Inc. being recorded on October 4,
2006 in Official Records Book 2242 page 842 and re-recorded on November 8, 2006 in O.R.B> 2250 at Page 1589
both of the Public Records ofMomoe Couoty, Florida.
21. Agreement for Sale and Purchase between Park Village, LLC, as Seller and Board of Couoty Commissioners for
Momoe Couoty, Florida, a political subdivision of the State of Florida, Purchaser, dated July 19, 2006 and being
recorded on October 18, 2006 in Official Records Book 2245 at Page 843 of the Public Records of Momoe County,
Floirda.
22. Subject to matters disclosed on that certain surve prepared by J. Lynn O'Flynn dated Juoe 12,2006.
NOTE: Numbers 2, 3, 4 & 5 above are hereby deleted.
Form OPM-SCH. B (Continued)
(rev. 5/94)
DoubleTime@
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage,
costs, attorneys' fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or
regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the
character, dimensions or location of any Improvement now or hereafter erected on the land; (iii) a separation In
ownership or a change In the dimensions or area of the land or any parcel of which the land is or was a part; or (iv)
environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except
to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a
violation or alleged violation affecting the land has been recorded in the pUblic records at Date of Polley.;
(b) Any governmental pollee power not excluded by (a) above, except to the extent that a notice of the exercise thereof
or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been
recorded in the publiC records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded In the public records at Date of Policy,
but not eXCluding from coverage any taking which has occurred prior to Date of Polley which would be binding on the
rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters;
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant
and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an
insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy, or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate
or interest insured by this policy.
4. Any claim, which arises out of the transaction vesting in the insured the estate or Interest insured by this polley, by
reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on:
(i) the transaction creating the estate or interest Insured by this policy being deemed a fraudulent conveyance or
fraudulent transfer; or
(ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except
where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to Impart notice to a purchaser for value or a judgment or lien creditor.
CONDITIONS AND STIPULATIONS
1. DEFINITION OF TERMS
The following terms when used in this policy mean:
(a) Ujnsured~: the insured named in Schedule A, and, subject to any rights
or defenses the Company would have had against the named insured, those who
succeed to the interest of the named insured by operation of law as distinguished
from purchase including, but not limited to, heirs, distributees, devisees, survivors,
personal representatives, next of kin, or corporate or fiduciary successors.
(b) uinsured claimant": an insured claiming loss Of damage.
(c) "knowledge" or "known": actual knowledge, not constructive knowledge
or notice which may be imputed to an insured by reason of the public records as
defined in this policy or any other records which impart constructive notice of
matters affecting the land.
(d) ~Iand": the land described, or referred to in Schedule A, and im-
provements affixed thereto which by law constitute real property. The term "Iand~
does not include any property beyond the lines of the area described or referred to
in Schedule A, nor any right, title, interest, estate or easement in abutting streets,
roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify
or limit the extent to which a right of access to and from the land is insured by this
policy.
(e) "mortgage": mortgage, deed of tnJst, tnJst deed, or other security
instrument.
(f) "public records": rerords established under state statutes at Date of
Policy for the purpose of imparting ronstnJctive notice of matters relating to real
property to purchasers for value and without knowledge. With respect to Section
I(a)(iv) of the Exclusions From Coverage, "public records" shall also include
environmental protection liens filed in the records of the clerk of the United States
district court for the district in which the land is located.
(g) ~unmarketability of the title": an alleged or apparent matter affecting the
title to the land, not excluded or excepted from coverage, which would entitle a
purchaser of the estate or interest described in Schedule A to be released from
the obligation to purchase by virtue of a contractual condition requiring the delivery
of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE
The coverage of this policy shall continue in force as of Date of Policy in
favor of an insured only so long as the insured retains an estate or interest in the
land, or holds an indebtedness secured by a purchase money mortgage given by
a purchaser from the insured, or only so long as the insured shall have liability by
reason of covenants of warranty made by the insured in any transfer or
conveyance of the estate or interest. This policy shall not continue in force in
favor of any purchaser from the insured of either (i) an estate or interest in the
land, or (ii) an indebtedness secured by a purchase money mortgage given to the
insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The insured shall notify the Company promptly in writing (i) in case or any
litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an
insured hereunder of any claim of title or interest which is adverse to the title to the
estate or interest, as insured, and which might cause loss or damage for which the
Company may be liable by virtue of this policy, or (iii) if title to the estate or
interest, as insured, is rejected as unmarketable. If prompt notice shall not be
given to the Company, then as to the insured all liability of the Company shall
terminate with regard to the matter or matters for which prompt notice is required;
provided, however, that failure to notify the Company shall in no case prejudice
the rights of any insured under this policy unless the Company shall be prejudiced
by the failure and then only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS: DUTY OF INSURED
CLAIMANT TO COOPERATE.
(a )Upon written request by the insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, the Company, at its
own cost and without unreasonable delay, shall provide for the defense of an
insured in litigation in which any third party asserts a claim adverse to the title or
interest as insured, but only as to those stated causes of action alleging a defect,
lien or encumbrance or other matter insured against by this policy. The Company
shall have the right to select counsel of its own choice (subject to the right of the
insured to object for reasonable cause) to represent the insured as to those stated
causes of action and shall not be liable for and will not pay the fees of any other
counsel. The Company will not pay any fees, costs or expenses incurred by the
insured in the defense of those causes of action which allege matters not insured
against by this policy.
(b )The Company shall have the right, at its own cost, to institute and
prosecute any action or proceeding or to do any other act which in its opinion may
be necessary or desirable to establish the title to the estate or interest, as insured,
or to prevent or reduce loss or damage to the insured. The Company may take
any appropriate action under the terms of this policy, whether or not it shall be
liable hereunder, and shall not thereby concede liability or waive any provision of
this policy. If the Company, shall exercise its rights under this paragraph, it shall
do so diligently.
(c) Whenever the company shall have brought an action or interposed a
defense as required or permitted by the provisions of this policy, the Company
may pursue any litigation to final determination by a court of competent jurisdiction
and expressly reserves the right, in its sole discretion, to appeal from any adverse
judgment or order.
(d) In all cases where this policy permits or requires the Company to
prosecute or provide for the defense of any action or proceeding, the insured shall
secure to the Company the right to so prosecute or provide defense in the action
or proceeding, and all appeals therein and permit the Company to use, at its
option, the name of the insured for this purpose. Whenever requested by the
Company, the insured, at the Company's expense, shall give the Company all
reasonable aid (i) in any action or proceeding, securing evidence, obtaining
witnesses, prosecuting or defending the action or proceeding, or effecting
settlement, and (ii) in any other lawful act which in the opinion of the Company
may be necessary or desirable to establish the title to the estate or interest as
insured. If the Company is prejudiced by the failure of the insured to furnish the
required cooperation, the Company's obligations to the insured under the policy
shall terminate, including any liability or obligation to defend, prosecute, or
continue any litigation, with regard to the matter or matters requiring such
cooperation.
5. PROOF OF LOSS OR DAMAGE
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided the Company, a proof of loss or
damage signed and sworn to by the insured claimant shall be furnished to the
Company within 90 days after the insured claimant shall ascertain the facts giving
rise to the loss or damage. The proof of loss or damage shall describe the defect
in, or lien or encumbrance on the title, or other matter insured against by this
policy which constitutes the basis of loss or damage and shall state, to the extent
possible, the basis of calculating the amount of the loss or damage. If the
Company is prejudiced by the failure of the insured claimant to provide the
required proof of loss or damage, the Company's obligations to the insured under
the policy shall terminate, including any liability or obligation to defend, prosecute,
or continue any litigation, with regard to the matter or matters requiring such proof
of loss or damage.
In addition, the insured claimant may reasonably be required to submit to
examination under oath by any authorized representative of the Company and
shall produce for examination, inspection and copying, at such reasonable times
and places as may be designated by any authorized representative of the
Company, all records, books, ledgers, checks, correspondence and memoranda,
whether bearing a date before or after Date of Policy, which reasonably pertain to
the loss or damage. Further, if requested by any authorized representative of the
Company, the insured claimant shall grant its permission, in writing, for any
authorized representative of the Company to examine, inspect and copy all
records, books, ledgers, checks, correspondence and memoranda in the custody
or control of a third party, which reasonably pertain to the loss or damage. All
information designated as confidential by the insured claimant provided to the
company pursuant to this Section shall not be disclosed to others unless, in the
reasonable judgment of the Company, it is necessary in the administration of the
claim. Failure of the insured claimant to submit for examination under oath,
produce other reasonably requested information or grant permission to secure
reasonably necessary information from third parties as required in the above
paragraph, unless prohibited by law or governmental regulation, shall terminate
any liability of the Company under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS: TERMINATION OF
LIABILITY.
In case of a claim under this policy, the Company shaH have the following
additional options:
(a) To Payor Tender Payment of the Amount of Insurance.
To payor tender payment of the amount of insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or
tender of payment and which the Company is obligated to pay.
Upon the exercise by the Company of this option, all liability and obligations
to the insured under this policy, other than to make the payment required, shall
terminate, including any liability or obligation to defend, prosecute, or continue any
litigation, and the policy shall be surrendered to the Company for cancellation.
(b) To Payor Otherwise Settle With Parties Other than the Insured or
With the Insured Claimant.
(i) to payor otherwise settle with other parties for or in the name of an
insured claimant any claim insured against under this policy, together with any
costs, attomeys' fees and expenses incurred by the insured claimant which were
authorized by the Company up to the time of payment and which the Company is
obligated to pay: or
(ii) to payor otherwise settle with the insured claimant the loss or damage
provided for under this policy, together with any costs, attorneys' fees and
ENDORSEMENT
Chicago Title Insurance Company
Endorsement No. I
to Policy No.: 7210609-72667592
Name of Original Insured: RIVIERA ENTERPRISES, INC.
Original Effective Date: 10/04/06 at 8:29 a.m.
Original Amount of Insurance:
$$1,000,000.00
Agent's File Reference: 06-366-ET
Current Amount of Insurance:
$$1,000,000.00
The policy is hereby amended as follows:
As to Schedule B numbers I, is hereby deleted in its entirety.
As to Schedule B #22 is here by amended to read as follows:
Subject to matters disclosed on that certain survey prepared by J. Lynn O'Flynn dated June 12, 2006 as
follows:
I. 5' Easerment on the Southerly boundary line of said property.
As to Schedule B numbers 18, 19,20 & 21 are deleted
As to Schedule B the following is hereby added
The following matters are subordinate to the insured but are of record:
1. Amended and Restated Mortgage and Security Agreement between Park Village, LLC a Florida limited
liability company and Orion Bank, a Florida banking corporation dated September 27, 2006 and recorded on
October 4,206 in Official Records Book 2242 at Page 807 ofthe Public Record of Monroe County, Florida.
2. State of Florida Uniform Commercial Code Financing Starment Amendment Form amending that certain UCC
Statement between Park Village, LLC and Orion Ban, filed in O.R.B. 2223 at Pge 1213 of the Public Records of
Moroe County, Florida.
(Continue text of endorsement on separate continuation sheet if necessary.)
but in all other respects remains unchanged.
Spoll.wood, Spoll.wood & Spoll.wood
Name of Agent
J~J111 ~
Agent's Signa
Erica N. Hughes-Sterl
1/24/07
Date
10-2472-02
Agent No.
Chicago Title In.urance Company
President
Endorsement (rev. 810J)
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ENDORSEMENT (Continued)
Chicago Title Insurance Company
Endorsement No. I to Policy No.: 7210609-72667592
3. Notice of Commencement between Park Village, LLc and Salinero Enterprises, Inc. being recorded on
October 4, 2006 in Official Records Book 2242 page 842 and re-recorded on November 8, 2006 in
OR.B 2250 atPage 1589 both of the Pubic Records of Momoe County, Florida.
4. Agre<:ment for Sale and Purchase between Park Village, LLC as Seller and Board of County
Commissioners for Momoe County, Florida, a political subdivision of the State of Florida, Purchaser, dated
July 19, 2006 and being recorded on October 18,2006 in Official Records Book 2245 at Page 843 of the
Public Records of Momoe County, Florida.
(Continue text of endorsement on separate continuation sheet if necessary.)
Endorsement (rev. 8/01)
File Number: 06-366-ET
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