N. County Attorney
April 2007 Litigation Report
To: Mayor DiGennaro & County Commissioners
Tom Willi, County Administrator
From: Suzanne Hutton, County Attorney
Date: April 11, 2007
Summary
Number of Cases
New cases opened in last month 5
Cases closed since last report 0
CAY active cases 44
Potential cases not yet filed 12
Outside Counsel Cases 30
Constitutional Officers
Employee Services
Engineering
Growth Management
Public Works
Risk Management
Total Active Cases pending 74
Index
Significant Developments
New Cases
Cases Closed
CAY Litigation Cases Trial & Appellate Level
Potential Cases
Outside Counsel Cases
Aronovitz, Tod (1 case)
Ferencik, Libanoff (Ira Libanoff) (5 cases)
Gray Robinson (Ed Scales & M. Campbell) (1 case)
Greenberg, Traurig (Dave Jordan) (1 case)
Johnson, Anselmo, (Bruce Johnson & Mike Burke {17 cases}
Paul, Hastings (Bob Freilich & Derek Howard) (4 cases)
Purdy, Jolly (Summer Baranco) (1 case)
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51
4
10
Sianificant DevelODments and Uocomina Events
Bauknight v. Monroe County - April 4, 2007 - Property owners have appealed to
the Third DCA Judge Garda's order granting County's motion for summary
judgment as to liability in this takings case for three lots on Big Pine. No case
information available yet from the Third DCA.
Collins v. Monroe County - Judge Audlin scheduled a bench trial on liability on
this multi-plaintiff/multi-Iot takings case for June 18, 19, and 25, 2007. Mediation
deadline is June 10,2007.
Emmert v. Monroe County - Judge Garcia started trying the two vested rights
counts on this Ocean Reef lot on April 9, 2007, while holding the takings count in
abeyance. On April 11 ,2007, Judge Garcia dismissed 1 of the 2 vested rights
counts at the dose of the Emmerts' case. Trial scheduled to condude April 1 i".
Florida Keys Citizens Coalition & Last Stand v. DCA & Monroe County - final
administrative hearing completed March 15, 2007. Proposed final orders due
May 10,2007.
Fuchs v. Monroe County- March 12, 2007, Judge Audlin affirmed ruling of Code
Enforcement Special Magistrate that Fuchs had violated the OSTDS ordinance.
April 12, 2007 is deadline for petition Third DCA for certiorari review.
Galleon Bay - Third District Court of Appeals affirmed Judge Payne's order
granting a new trial on damages. Case will be remanded back to Judge Audlin
for further proceedings unless further appellate review is sought and authorized.
Ughtner v. Monroe County - March 5, 2007, case re-assigned to Key West
division and Judge Jones. February 13, 2007, Judge Garcia had granted the
County's motion to transfer this takings claim brought by multiple property
owners on Big Pine and No Name Keys to the correct division under local court
rules. A hearing on the County's motion to dismiss will now be scheduled.
Neumont v. Monroe County- April 19, 2007 - Oral argument scheduled before
the Florida Supreme Court on the question certffied by the 11 th Circuit Court of
Appeals on whether the County complied with Florida law when it adopted the
vacation rental ordinance in 1997.
Walgreens v. Monroe County & Florida Keys Citizens Coalition - April 20, 2007 -
hearing on County's motion to darify the Court's jurisdiction over appeals of
development approvals issued pursuant to settlement agreement.
2
CASES OPENED SINCE LAST MONTH'S REPORT
Bank of New York v. Shawn Miller & Monroe County CA-K-07-410
Circuit Court 16th Judge: Audlin Date Filed: 3/30107
Mortgage foredosure complaint in which County's interest is lien imposed due to
costs assessed during a 1995 criminal case.
Constitutional Officer/Article V RBS
Current Status: County served 4/4107.
Next Activity: County's response due April 25, 2007.
TIme:
.3
Costs:
0.00
BOCC v. Marcia Turner & Garabetv Khatchikian CA-M-07-101
Circuit Court 16th Judge: Audlin Date Filed: 4/5107
Action by County seeking an injunction to prevent use of the subject property
until certain violations of County Code are addressed. Property, which is subject
to code enforcement proceedings for construction w/o permit, is being rented as
a short term vacation rental.
Growth Management/Code Enforcement PJMlRBS
Current Status: Temporary injunction granted.
Next Activity: Hearing on permanent injunction to be set.
TIme: 5.0
Costs:
$255.00
EEOC v. Monroe County 510-2007-02127
EEOC Miami Date Filed: 3/19/07
ADA discrimination daim by person not hired to fill firefighter/paramedic position.
Employee Services & Emergency Services RBS
Current Status: County's response submitted.
Next Activity: Await outcome of EEOC investigation.
Johnson, Anselmo billing to date: 0.00
CAY Time: 28.8 Costs: 0.00
3
Hill Familv Investments. Inc. v. Monroe County CA.P..o7,,141
Circuit Court 16th Judge: Garcia Date Filed: 3/23107
Action for mandamus and injunctive relief regarding scheduling hearing on
application for major condition use and application of Administration
Commission's amendments to County's compo plan and LDRs.
Growth Management/Planning RBS
Current Status: Complaint filed and served.
Next Activity: County's answer due April 23, 2007.
TIme:
.5
Costs:
0.00
Turner. Marcia & Garabet Khatchikian v. Monroe County CA K 07.J19
Circuit Court 16th Judge: Audlin Date Filed: 319107
Appeal from decision of Code Enforcement Special Magistrate.
Growth Management/Code Enforcement PJM
Current Status: Notice of appeal filed.
Next Activity: Appellant's brief due May 18, 2007.
TIme:
.1
Costs:
0.00
CASES CLOSED SINCE LAST MONTH'S REPORT - NONE
COUNTY ATTORNEY'S OFFICE CASES
See Outside Counsel Section for Cases being Handled Jointly
Acredited Home Lenders. Inc. v. Olaa Ruiz & Monroe County CA K 06.543
Circuit Court 16th Judge: Jones Date Filed: 5125106
Mortgage foredosure action on property County holds $36k SHIP mortgage on.
Monroe County Housing Authority RBS
Current Status: Action in abeyance while Ruiz makes payments.
Next Activity: None.
TIme: 5.7
Costs:
8.68
4
Aauiar. Alexander & Elizabeth Ginart v. Monroe County CA P 06-189
Circuit Court 16th Judge: Garcia Date Filed: 5/5106
Appeal from decision of Code Enforcement Special Magistrate
Growth Management/Code Enforcement PJM
Current Status: Motion to dismiss pending.
Next Activity: Hearing to be set.
Time: 1.7
Costs:
0.00
Bank of New York et. al. v. Williams et. al. CA-K- 06-1345
Circuit Court 16th Judge: Audlin Filed: 12/21106
Mortgage foreclosure action. County holds @$950.00juniorlien imposed for
fines, court costs, and fees imposed in misdemeanor case. Lien is defective so
County's interest is void
Article V. RBS
Current Status: County filed answer conceding its interest is void.
Next Activity: No further action until final judgment entered.
nme: 2.5 Costs: 0.00
Bankunited v. M. & J. Jordan & Monroe County et al. CA K 06-862
Circuit Court 16th Judge: Jones Date Filed: 8/22/06
Mortgage foreclosure action in which County holds inferior liens totaling $750.00.
Article V PJM
Current Status: Motion for summary judgment granted to Plaintiff.
Next Activity: Monroe County filing Statement of Claim.
Time: .5 Costs: 0.00
0.8. Key Lamo. LLC v. Monroe County Plannina Comm'n DOAH 06-484
DCAH Judge: Johnston Date Filed: 2/10106
Administrative appeal of planning commission denial of an application for
amendment to a major conditional use permit.
Growth ManagementlPlanning RBS
Current Status: Held in abeyance by agreement of the parties.
Next Activity: Status report due 4130107.
Time: 3.3 hours
Costs: 26.60
5
Dam. Kenneth & Katie Pearce v. Monroe County CA P 06~203
16th Circuit Judge: Garcia Date Filed: 5/15106
Quiet title action challenging imposition of conservation easement.
Growth Management/Planning RBS
Current Status: County filed answer.
Next Activity: Discovery.
nme: 9.3
Costs:
0.00
Eads. Barbara v. Monroe County CAP-03-117
Circuit Court 16th Judge: Garcia Date Filed: 2/27103
Appeal of order finding the Lowe House to be in unsafe condition.
Growth Management/Code Enforcement RBS
Current Status: Historic structure being renovated.
Next Activity: None at this time.
nme: 4.8 hours
Costs: 0.00
Evans. Ronald & Marvanna v, Monroe County & K.L.O.R. CA P 06~206
16th Circuit Judge: Garcia Date Filed: 05/1516
Declaratory Judgment action seeking to enjoin entering into development
agreement with Key Largo Ocean Resorts Co-Op, Inc.
Growth Management/Planning RBSlRBS
Current Status: Held in abeyance pending arbitration.
Next Activity: None.
Time: 14.2
Costs:
0.00
Fuchs. Walburaa v. Monroe County
Circuit Court 16th Judge: Audlin
This is a code enforcement appeal of an OSTDS case.
Growth Management/Code Enforcement
CAK-01-1251
Date Filed: 10/5101
RBS
Current Status: Affirmed 3/12107.
Next Activity: None, unless certiorari review sought by 4/12107.
Time: 24.9 hours
Costs: 0.00
6
Good. Llovd v. Monroe County
Circuit Court 161b Judge: Audlin
Inverse condemnation action based on NROGO.
Growth Management/Planning
CA K 01-977
Date Filed: 819/01
RBS
Current Status: Held in abeyance while Good goes thru BUD process.
Next Activity: BUD hearing to be scheduled.
M&H Billing to date: $18,526.41 as of 10/31/05.
CAY Time: 29.5 COST: $144.45
Hardin. Michelle v. Monroe Countv
Circuit Court 161b Judge: Miller
Appeal of code enforcement decision.
Growth Management/Code Enforcement
CA K 99-1046
Date Filed: 9/3/99
RBS
Current Status: Appellant's brief complete.
Next Activity: County's brief due 4130/07.
M&H Billing to date:$1 0,241.57 thru 8/31/05.
CAY Time: 7.6
Johnson. Llovd v. Marlene Conaway CA K 02-1248
Circuit Court 16th Judge: Audlin Date Filed: 10/30102
Writ of Mandamus challenge to boundary determination.
Growth Management/Planning RBS
Current Status: Status report from Judge's chambers pending.
Next Activity: If needed, schedule hearing on Motion to Dismiss.
M&H Billing to date:
CAY Time: 3.4
$2,219.62 through 8/31/05.
7
Kalan. Suzanne v. Monroe County
Circuit Court 16U1 Judge: Garcia
Inverse condemnation action.
Growth Management/Code Enforcement
CA P 03-155
Date Filed: 3/11103
RBS
Current Status: Held in abeyance pending BUD hearing which was held,
Next Activity: Nothing pending.
M&H Billing to date:
CAY TIme: 2.5
$2,855.77 as of 8/31/05.
Ladet Lucy v. Monroe County
Circuit Court 16U1 Judge: Miller
Mandamus action on building permit allocation issue.
Growth Management/Planning
CA K 06-952
Date Filed: 9/1212006
RBS
Current Status: Settlement reached and approved by BOCC 12/20/06.
Next Activity: Finalize documents and close file.
Time: 12,0
Costs:
0.00
Lee. Vera Estate of CP K 02-112
Circuit Court 1611'I Judge: Taylor Date filed: 5/14102
County has claim in probate case for an elderly home loan & unpaid taxes.
Housing Authority RBS
Current Status: Estate re-opened, CAY appointed PR, property listed.
Next Activity: Sell property to satisfy all liens, complete estate.
TIme: 9.9 Costs:
Mahlock. P. v. K. Raaon. Key Colony Beach. Monroe County CA P 07-97
Circuit Court 1601 Judge: Garcia Date Filed: 2/21107
Negligence case filed by roller blader on KCB bike path.
Public Works & Risk Management RBS
Current Status: Order granted on County's motion to quash service.
Next Activity: Await re-service or dismissal.
Time: 4.1
Costs:
0.00
8
Mclntvre. Edward v. Richard Roth & Monroe County
US Dist. SDFla. Judge: Hoeveler
Civil Rights action filed in 1980 over old jail facilities.
Constitutional Officer/MCSO
80-1721-CIV-WMH
Date Filed: 7/8180
Settled 1211991.
RBS
Current Status: Status report being finalized.
Next Activity: Status conference to be scheduled.
CAY Time: 13.0
Costs: $86.77
(since March 2005)
Monroe County v. Matthew Bonnett CAK-G5-911
Circuit Court 16th Judge: TBA Date Filed: 9/9/5
Code enforcement lien collection action authorized 10/17/04, $78,000.
Growth Management/Code Enforcement PJM
Current Status: Discovery.
Next Activity: Bonnett's discovery responses overdue.
Time: 6.8 hours
Costs: $295.00
Monroe County Y. Donald Brown CA K 06 953
Circuit Court 16U1 Judge: Jones Date Filed: 9/14106
Code Enforcement Lien collection action for commercial property on Big Coppitt.
Growth Management/Code Enforcement PJM
Current Status: Answer filed.
Next Activity: Discovery.
Time: 0.6
Costs:
$255.00
Monroe County Y. DeDl of Community Affairs DCA" 06-2856
DOAH Judge: Alexander Date Filed: 7/21106
Administrative challenge to DCA's rejection of County's ordinance establishing
density bonus for affordable housing units measuring no more than 750 sq.ft.
Growth ManagementIPlanning RBS
Current Status: Being held in abeyance until 6/117.
Next Activity: Status report due 6/1/07.
Time: 62.2
Costs:
$262.50
9
Monroe County v. Alain Y. Depierrefeu CAK-03-1504
Circuit Court 16m Judge: Jones Date Filed: 12118/03
Code enforcement foreclosure action authorized by the SOCC on 4/18/03.
Growth Management/Code Enforcement RBS
Current Status: Discovery.
Next Activity: Discovery.
V & B Fees billed to date: None
CAY Time: 6.7
Costs: 0.00
Monroe County v. Alain Y. Depierrefeu CAK-03-1507
Circuit Court 16th Judge: Jones Date Filed: 12118103
Code enforcement foredosure action authorized by the SOCC on 4/18/03.
Growth Management/Code Enforcement RBS
Current Status: same as previous entry,
Next Activity: Same as previous enby.
V&B Fees billed to date: None
CAY Time: 3.5 hours
Costs: 0.00
Monroe County v. James Jeanauenat
Circuit Court 16th Judge: Garcia
Collection action authorized by sacc on 4/21/04.
Growth Management/Code Enforcement
CAP-05317
Date Filed: 7118105
Fine exceeds 136,100.00.
RBS
Current Status: Motion for Dismiss filed.
Next Activity: Motion hearing TBA.
Time: 3.7 hours
Costs: $275.00
Monroe County v. Key Lamo Ocean Resorts CoOP. Inc. CAP-96-260
Circuit Court 1681 Judge: Garcia Date Filed: 5120196
Action to foreclose a code enforcement lien.
Growth Management/Code Enforcement RBSlRBS
Current Status: Development agreement application being reviewed.
Next Activity: Status report due with the Court 4/1/07.
Time: 41.5 hours
Costs: $340.00
10
Monroe County v. Pedro Liz CAK-05-420
Circuit Court 16th Judge: Jones Date Filed: 4122/05
Collection action authorized by SDCC on 7/17/03; fines exceed $816,300.00.
Growth Management/Code Enforcement RBS
Current Status: Settlement signed.
Next Activity: Settlement agreement on April SDCC agenda for approval.
Time: 13.0 hours
Costs: $555.00
Monroe County v. Arthur Mehr
Circuit Court 16th Judge: Garcia
Code fine collection action. Fine exceeds $42,000.00.
Growth Management/Code Enforcement
CAP-05-348
Date Filed: 815105
RBS
Current Status: Discovery.
Next Activity: Discovery.
TIme: 13.7 hours
Costs: $850.00.
Monroe County v. James Messera. at al CAK-03.1509
Circuit Court 16th Judge: Audlin Date Filed: 12/18103
Code enforcement foreclosure action authorized by the SDCe 4/18/03.
Growth Management/Code Enforcement RBS
Current Status: Settled & dismissed.
Next Activity: Resolve fees with former counsel before closing.
V & B Fees billed to date: 67.3
CAVTime: 3.0
Costs: $1029.03
Monroe County v. Outland Properties CAP-05-400
Circuit Court 16th Judge: Garcia Date Filed: 919/5
Collection action authorized by SOCC on 10/17/04. Fine over $225,000.00.
Growth Management/Code Enforcement PJM
Current Status: Discovery responses overdue.
Next Activity: Hearing on motion to withdraw of counsel for Outland
Properties 6/13/07.
Time: 1.6 hours
Costs: 300.00
11
Monroe County v. Virginia ~awver & Tonv Welters CAK-03-1505
Circuit Court 1601 Judge: Audlin Date Filed: 12/18103
Code enforcement foreclosure action that was authorized by the soce 7/15/03,
Growth Management/Code Enforcement RBS
Current Status: Settlement negotiations pending,
Next Activity: If unsuccessful, move for summary judgment.
V & B Fees billed to date: None
CAY Time: 2.0
Costs: 0,00
Monroe County v. Virginia Sawver CAK.Q3-1506
Circuit Court 16tn Judge: Jones Date Filed: 12/18103
Code enforcement foreclosure action that was authorized by the SOCC 7/15/03,
Growth Management/Code Enforcement RBS
Current Status: Court approved settlement agreement, injunction, lien.
Next Activity: Enforcement if not compliance,
V&B Fees & Costs billed to date: $11,745.44
CAY Time: 6,7 hours
Monroe County v. Louis Welters CAK-04-639
Circuit Court 16tn Judge: Jones Date Filed: 6114104
Code enforcement foreclosure action that was authorized by the SOCC 7/15/03.
Growth Management/Code Enforcement RBS
Current Status: Settlement negotiations pending.
Next Activity: If unsuccessful, move for summary judgment.
V&B Fees billed to date: None
CAY Time: 2.5
Costs: 0.00
O'Daniel. John & Theresa Hill v. Monroe County CA P 02-141
Circuit Court 16th Judge: Garcia Date Filed: 3/13102
Appeal of code enforcement action and vested rights claim.
Growth Management/Code Enforcement/Planning RBS
Current Status: Mandate from Third DCA received 1/13106.
Next Activity: None scheduled,
M&H Billing to date:
CAY Time: 2.5
$42,782.73 as of 10/31/05
12
Neumont. Elizabeth et al. v. Monroe County 99-10054-CV
U.S. Disl Ct., S.D.Ra. Judge: Paine Date Filed: 5121199
Class action challenging enactment of vacation rental ordinance.
Growth ManagementfPlanning RBS
Current Status: On appeal to 11th Circuit which certified question.
Next Activity: None, await ruling.
M&H Billing to date:
CAY TIme: 0.5
$123,563.24.
Neumont. Elizabeth et at v. Monroe County
11th Circuit Court of Appeals Judges: TBA
Appeal of 99-1 0054-CV above.
Growth Management/Planning
04-13610-X
Date Filed: 7115104
RBS
Current Status: Court certified question to Florida Supreme Court.
Next Activity: None in 11th Circuit until certified question answered.
CAY Time: 4.5
Nicholson. Delaine v. Monroe County
Circuit Court 16th Judge: Garcia
Code enforcement appeal.
Growth Management/Code Enforcement
CA P 07-17
Date Filed: 118107
PJM
Current Status: Appellant's brief over due.
Next Activity: Move to dismiss.
TIme: 0.1
Costs:
0.00
Oliveros. Joseoh v. Ana M. Velazauez & Monroe Countv CA P 06-130
Circuit Court 16th Judge: Garcia Date Filed: 3120106
Quiet title action to property conveyed via tax deed.
Constitutional OfficerlTax Collector RBS
Current Status: County has no interest to defend in case.
Next Activity: None.
Time: 1.8 Costs: 0.00
13
Sierra Club st a/. v. DCA. Mi8mi~Dade Co.. Monroe Co. et 81 3D06M2544
Third DCA Judges: TBA Date Filed: 10/12/06
Appeal of Administrative Order upholding amendment to Miami-Dade County's
compo plan expanding Krome Avenue. Monroe had intervened below on side of
challengers; BOCe gave direction to take no further action.
Growth ManagementlPlanning RBS
Cunent Status: Briefing complete. County took no action.
Next Activity: Await decision of Court.
Time: 0.5 Costs: 0.00
In re: Trinsic. Inc. et al
Bankrutpcy Court Alabama Judge: M. Mahoney
Bankruptcy action by 5 inter-related telephone providers.
based on unpaid 911 fees at 50 cents per line.
Constitutional Officer/Clerk
07~10320 thru 10324
Date Flied: 2/12107
County's interest is
RBS
Current Status: Claims assessment completed by legal staff. County owed
$3.50 per month. Last received payment in November 2006.
Next Activity:
No action to be taken because of minimal amount owed.
Time: 1.2
Costs:
0.00
Walgreens & G8dlnsky v. Monroe County CAK-05-266
Circuit Court 161ft Judge: Audlin Date Filed: 3111105
Cert. review of DOAH order upholding 1/6 findings supporting denial of major
conditional use application for Big Pine Walgreens. Settled.
Growth Management/Planning RBS
Current Status: Reopened to clarify extent to which Court retained
jurisdiction over appeals of development approvals issue
pursuant to settlement agreement.
Next Activity: Hearing on April 20,2007.
lime: 53.8 hours
Costs: $425.85
14
POTENTIAL CASES THAT HAVE NOT YET BEEN FILED
Aeais Factors. Inc. v. Monroe County v. Judv Bobic TBA
Circuit Court Judge: TBA Date Filed: TBA
Claim for payment of $35,546,01 made by assignee of airport's janitorial
contractor who had assigned payment rights to lender. If sued, County would
likely file a third party claim against contractor to recoup any judgment entered.
Airport & Public Works RBS
Current Status: Bobick agreement to make repayments secured by
mortgage against her house.
Next Activity: None unless and until served with suit.
Time: 13.8 Costs: 0.00
Allison, Beverly Delores and Cart Eldred and Monroe County TBA
TBA Judge: TBA Date Flied: TBA
Potential person injury action due to alleged slip and fall.
Risk Management RBS
Current Status: Reviewing claim and information provided.
Next Activity: None until/unless suit is filed.
Time: .2 Costs: 0.00
ASI Underwriters v. Monroe County (Conch Key Fire Department) TBA
TBA Judge: TBA Date Filed: TBA
Potential tort or indemnification action due to allegedly fire service deficiencies on
Conch Key,
Risk Management & Emergency Services RBS
Current Status: Reviewing claim and information provided.
Next Activity: None untiUunless suit is filed.
Time: .2 Costs: 0.00
15
Ballard, Kandi v. Bergen Trust and Monroe County TBA
TBA Judge: TBA Date Filed: TBA
PI case arising from County's of Bergen property for hurricane debris.
Risk Management & Engineering RBS
Current Status: Reviewing daim and information provided.
Next Activity: None untiVunless suit is filed.
Time: 7.1 Costs: $0.00
Batt. Andrew & Donna v. City of Marathon CA M 05-267
Circuit Court (16th) Judge: Audlin Date Filed: 9/30105
Declaratory Judgment action challenging validity of affordable housing deed
restriction City of Marathon inherited from County at time of incorporation.
Growth ManagementIPlanning RBS
Current Status: Third DCA affirmed 2/14/07.
Next Activity: None.
Time: 15.0
Costs:
0.00
Calusa Camoaround Condo v. Monroe County. st al.. TBA
Circuit Court (16th) Judge: Date Filed:
Threatened action by condominium resulting from statements regarding platting
requirements by Growth Management personnel.
Growth Management/Planning RBS
Current Status: Settlement approved by SOCC 3/21/07
Next Activity: Finalize issues addressed in agreement.
Time: 24.5
Costs:
0.00
Fulton. Charles at al v. Nat'l Gen. Assurance Co.. et al. 00-7549-CA-LG
Circuit Court (20th) Judge: Steinbeck, M. Date Filed: 9n/00
Class action suit by health care providers against insurance companies for late
payment of PIP benefits wlo interest. EMS is a potential dass member.
Emergency ServiceslEMS RBS
Current Status: Reviewing documents to determine County's interest.
Next Activity: Opt out deadline October 31,2006.
Time: 0.5
Costs:
0.00
16
Good. Llovd v. Monroe County TBA
Circuit Court (16th) Judge: Date Filed:
Bert J. Harris Act daim regarding two parcels of property owned by Lloyd Good.
Growth Management/Planning RBS
Current Status: Presuit negotiations successful.
Next Activity: Complete settlement agreement.
nme: 10.6 hours
Costs: $5.56
State of Florida v. Monroe County TBA
TBA Judge: TBA Date Filed: nJa
AG's Medicaid Fraud unit alleges over billings for ambulance services.
Public Safety/EMS RBS
Current Status: Waiting over a year for AG's office to set up conference.
Next Activity: None scheduled.
nme: 9.2 hours
Costs: 0.00
Stewart. Beckv v. Monroe County TBA
TBA Judge: TBA Date Filed: TBA
Tort daim arising from accident involving County vehide in Dcala.
Risk Management RBS
Current Status: Negotiations stalled due to offsetting daims.
Next Activity: Defend suit if filed; file suit if appropriate.
nme: 1.4 Costs: $0.00
17
37 006 CA 1823
Circuit Court ( - Leon) Judge: TBA Date Filed: 7120106
Class action filed against Florida Medical Examiners' Commission and 17
appointed district medical examiners seeking a refund of cremation fees that
were not authorized by statute. Dr. Hunter will be retaining his own counsel.
Medical Examiner RBS
Current Status: County not named as a party at this time.
Next Activity: None unless & until County named.
Time: 1.5 Costs: $0.00
Wells. David M. v. Monroe County CA K TBA
Circuit Court (16th) Judge: TBA Date Filed: TBA
Tort daim against Monroe County for alleged false statements made by
employee to law enforcement officer that led to claimant's arrest.
Risk Management & Emergency Services RBS
Current Status: Claim filed 10/3/06 being reviewed.
Next Action: County has 6 months to evaluate the daim.
Time: 0.2
CASES BEING LITIGATED BY OUTSIDE COUNSEL
Tod Aronovitz
Leon County. at al v. Hotels.com LP 06CV 21878CV
U.S. Dist. Ct., S.D.Fla. Judge: Huck Date Filed: 7127106
Class action against internet reservation entities to collect unpaid bed taxes.
Constitutional OfficerfTax: Collector RBS
Current Status: Dismissed without prejudice 2/27/07.
Next Activity: Await report for County's retained counsel on status.
Time: 3.5 Costs: 0.00
18
Ferencik, Libanoff, Brandt, Bustamante and Williams, P.A. (Ira Libanoff)
D.L.Porter Constrcutors. Inc. v. Monroe County CA K 07-155
Circuit Court (16th) Judge: Jones Date Filed: 2/512007
Breach of contract action filed by general contractor for KWIA hanger project.
Airports & Engineering PJM
Currrent Status: Awaiting service. Will be handled jointly by CAY & Ira
Libanaff
Next Activity: None until served.
Fees: $6,969.16
CAY Time: 10.5
Costs:
319.16
Monroe County v. Bender & Associates. et 81 CAK-03-915
Circuit Court 16th Judge: Jones Date Filed: 8/4103
Breach of contract and negligent misrepresentation action arising from the
defective windows in the Gata building.
Engineering/Construction Management RBS
Current Status: Discovery.
Next Activity: Discovery.
Fees billed to date: $142,521.50 Costs: $14,524,43
Monroe County v. Jose Gonzalez CA K TBA
Circuit Court 16th Judge: TBA Date Filed: TBA
Possible breach of contract action against County's former architect.
Engineering/Construction Management RBS
Current Status: Nothing pending until licensing review completed.
Next Activity: None pending.
Fees billed to Date:
CAY Time: 12.5
$10,320.00 Costs: $1,114.18 (thru 1/01107)
19
Monroe County v. Lodae Construction. et al CAK-00-617
Circuit Court 16m Judge: Audlin Date Filed: 5/11/00
Suit against general contractor & its surety for breach of contract.
Engineering/Construction Management RBS
Current Status: Motion to set before Senior Judge pending.
Next Activity: Ruling on Senior Judge motion pending & trial date to be set.
Fees billed to date: $307,540.75 Costs: $72,468.31 (thru 1101107).
Trooex Construction Service. Inc. v. Monroe Countv
Circuit Court 16th Judge: Garcia
Breach of contract suit regarding Tavernier Fire Station.
Engineering/Construction Management
CA P 06-44
Date Filed: 1/30106
RBS
Current Status: Discovery.
Next Activity: Discovery.
Fees billed to date: $37,232.50 Costs: $1,964.77
CAY TIme: 2.1 Costs: 0,00
Gray Robinson (E. Scales & M. Campbell)
Neumonl Elizabeth v. State & Monroe County SC 06-1204
Fla. Supreme Court Judges: en bane Date Filed: 6/1416
Certified question from the 11th Circuit to the Florida Supreme Court seeking
guidance on proper interpretation of F.S. 125.66(4), ordinance notice provision.
Growth Management/Planning RBS
Current Status: Briefing complete.
Next Activity: Oral argument 4/19/06.
Billing Received to date: $10,319.06
CAY TIme: 13.5 Costs: 0.00
20
Greenberg, Traurig (Dave Jordan)
F.K.C.C. & Last Stand v. D.C.A. & Monroe County DOAH 06-2449GM
DOAH ALJ: Alexander Date Filed: 7n/6
Administrative challenge to ordinances adopting Tier system.
Growth Management/Planning RBS
Current Status: Final hearing completed March 15, 2007.
Next Activity: Submit proposed final orders by May 10, 2007.
CAY Time: 219.0 Costs:
GT Fees: $112,072.08
$10,222.08
Johnson, Anselmo, Murdoch, Burke, Piper, & McDuff, P.A.
(Bruce Johnson, Mike Burke, Tammy Scrudders)
BaukniGht. SkaGGs & Rockett v. Monroe County CAP-G4-451
Circuit Court iSm Judge: Garcia Date Filed: 9/24104
Inverse condemnationltakings case filed by Jimmy & Nancy Bauknight, Teague
Skaggs, & Kathleen Rockett for three lots on Big Pine Key. Mayor served 10/4/4.
Growth Management/Planning RBS
Current Status: Final Judgment appealed on April 4, 2007.
Next Activity: None pending appeal.
Fees billed to date: $21,915.32 (1/31107) Costs: 0.00
CAVTIme: 12.0
EEOC v. Monroe County
EEOC Miami
Sexual Harassment claim by County employee.
Employee Services
510-2006-04265
Date Filed: 10/13/06
SAH/RBS
Current Status: County's response submitted.
Next Activity: Await outcome of EEOC investigation.
Johnson, Anselmo billing to date: 0.00
CAY Time: 28.8 Costs: 0.00
21
Florida Key Deer y. Michael Brown & Gale Norton 9Q..10037-CIV-Moore
U.S. Dist. Ct., SO Fla. Judge: Moore Date Filed: 412190
ESA case that resulted in permanent injunction barring FEMA flood insurance,
Growth Management/Planning RBS
Current Status: Injunction in place. 6/9/6, Federal defendants moved for two
month extension to produce revised biological opinion and new RPAs.
Next Activity:
On appeal, see 05-16374-11
Billing to Date: none
CAY Time: 33.8
Costs: 0.00
Paulson. R.D. y. Florida Key Deer. et al 05..16374-11
11th Circuit Judges: TBA Date Filed: 11/10105
Appeal of Southern District's injunction in 90-10037~C'V. County appeared as
amicus curiae because denied intervention. See Case No.: 05-16990-11.
Growth Management/Planning RBS
Current Status: Briefs complete.
Next Activity: Awaiting decision by Court.
Billing to date:
CAY Time:
none
0.5
Costs:
0.00
Monroe County Y. Florida Key Deer. et 81 05-16990-11
11th Circuit Judges: TBA Date Filed: 12/12/05
Appeal of denial of County's motion to intervene in 90-10037-CIV.
Growth Management/Planning RBS
Current Status: Briefs complete.
Next Activity: Await decision by the Court.
Billing to Date: None
CAY Time: 1.0
22
Florida Kev Deer. et 81 v. Gale Norton (Sec. of Interior) 05~10063-CIV~KING
U.S.D.C. S.D.Fla. Judge: King Date Filed: 6/15105
ESA challenge to F&WS review of construction of park on Big Pine Key.
Engineering/Construction Management RBS
Current Status: Dismissed with prejudice by agreement on 2/13/06 because
revised biological opinion satisfactory to Plaintiffs.
Next Activity:
Resolve any attorneys fees & costs motions.
Fees billed to date: $612.50
CAY Time: 6.5
Costs: 0.00
FKCC & Last Stand v. FL Admin. Comm.. Monroe County DOAH 04-2756
DOAH Judge: Carolyn Holifield Date Filed: 08/05104
Administrative Rule challenge to partnership agreement with State.
Growth Management/Planning RBS
Current Status: Final Order in County's favor issued 6/29/06.
Next Activity: None pending appeal.
Fees billed to date: $59,464.92
CAY Time: 190.1 hours
Costs: 0.00
FKCC & Last Stand v. FL Admin. Comm.. Monroe County. et at 3005.1800
Third DCA Judges: TBA Date Filed: 7/28105
Appeal of ALJ's decision denying rule challenge in DOAH 04-2756.
Growth ManagementlPlanning RBS
Current Status: 2/13/07 - motion for rehearing and certification denied.
Next Activity: None, if certiorari review by Supreme Court not sought by
4/217.
Fees billed to date: see DOAH case for fees.
CAY Time: 1,5 hours Costs: 0.00
23
Hardee. Evelvn v. Monroe County
Circuit Court 16th Judge: Garcia
Tort action arising from alleged fall at PK Court house.
Risk Management & Public Works
CAP-05-265
Date Filed: 6/3105
Settled for $25,000.00.
RBS
Current Status: Dismissed 6f7/00. Re-opened 8/216
Next Activity: Evidentiary hearing on worker's compensation lien to be set.
Fees billed to date: $28,333.39 (thru 6/16/06).
CAY TIme: 11.9 hours
Howard. Carlton v. Monroe County 06-CV.10113
S.D.Fla. Judge: Moore Date Filed: 10/26106
Employee ADA claim arising from alleged discrimination in promotion interview.
Employee Services & Public Works RBS
Current Status: Discovery
Next Activity: Discovery.
Johnson, Anselmo billing to date: $3, 824.11
CAY Time: 4.5 Costs: 0.00
Hyland. Thomas G. v. D. Kolhaae & R. Thurston 04-10102-CIV
U.S.D.C.SD.Fla. Judge: Highsmith Date Filed: 10/21/04
Civil Rights action against Deputy Clerk of Court by inmate.
Constitutional Officer/Clerk RBS
Current Status: Dismissed by Court.
Next Activity: Appeal filed 10/10106.
CAY Time: 9.0
Fees & Costs billed to date: $34,390.70
24
Hvland. Thomas G. v. Dannv L. Kolhaae & Ruth Thurston 06-15372-A
1101 Circuit (US) Judge: TBA Date Filed: 10/10106
Third appeal arising from inmate civil rights action for alleged actions of deputy
clerk. Johnson, Anselmo is coverage counsel & co-counsel to CAY.
Constitutional Officer/Clerk RBS
Current Status: Await briefing schedule.
Next Activity: None until Hyland's brief is filed..
Time: .2 Costs: 0.00
Johnson, Anselmo, billing to Date: See District Court case.
Kessler. Stuart v. Monroe County & Tom Willi CA K 05-1006
Circuit Court 16th Judge: Jones Date Filed: 10/11/2005
Whistle-Blower & Civil Rights claim by former employee.
Employee Services & Risk Management RBS
Current Status: Discovery.
Next Activity: Discovery.
Fees & Costs billed to date: $19,535.67 (thru 10/18/06)
CAY TIme: 40,8
!=!ihtner. Nellie v. Monroe County CA P 06-562
16 Circuit Judge: Garcia Date Filed: 12/12/06
Inverse condemnation action.
Growth Management/Planning RBS
Current Status: 2/13/07, Court granted County's motion to transfer case to
correct location - Lower Keys Division.
Next Activity:
Hearing on motion to dismiss TBA
Fees & Costs billed to date: None.
Time: 13.6 Costs: 0.00
25
Neuman. Kenneth v. Monroe County
Circuit Court 16th Judge: Jones
Action for damages for temporary taking.
Growth Management/Planning
CAK-04-663
Date Filed: 6/21104
RBS
Current Status: 2128/07 - Summary judgment granted on count I and partial
summary on count II in favor of the County.
Next Activity:
Further motions or trial on remaining issue.
Fees billed to date: $2,326.92
CAY Time: 8.8 hours
Costs: 200.00
Riverview Consultants. Inc. v. Monroe County CAK-05..J73
Circuit Court 16th Judge: Jones Date Filed: 4/13/05
Case alleging tortious interference with contract by airport DBE subcontractor.
Risk Management & AirportB & Constitutional Officer/MeSO PJM
Current Status: Riverview appealed summary judgment in favor of County.
Next Activity: None pending appeal.
Fees billed to date: $743.86
CAY Time: 13.9 hours
Costs: 0.00
Riverview Consultants v. Monroe County 3006-2811
Third DCA Judges: TBA Date Filed: 11/15106
Appeal of summary judgment in favor of County on Airports' former DBE
consultant's tortious interference with contract claim.
Risk Management & Airports & Constitutional Officer/Meso PJM
Current Status: Briefing complete.
Next Activity: Await decision by Court.
Fees billed to date: - see trial level.
CAY Time: 1.5 Costs: 0.00
26
Paul, Hastings (B. Freilich & D. Howard)
& Stephen Moore, LLC
Collins. Thomasd. et al v. Monroe County
Circuit Court 16 Judge: Audlin
Takings action brought by 11 groups of plaintiffs.
Growth Management/Planning
CAM-04-379
Date Filed: 11122104
RBS
Current Status: New scheduling order received.
Next Activity: Case management conference 5115107. .
Total Fees billed to date: $1, 094, 026.20
CAY TIme: 158.8 hours Costs: $103,844.68
Emmert. Helen & Grea v. Monroe County
Circuit Court 16th Judge: Garcia
Inverse condemnation and vested rights action.
Growth ManagementlPlanning
CA P 02-520
Date Filed: 1012102
RBS
Current Status: Trial on 2 vested rights counts April 9 - 12, 2007.
Next Activity: Pending outcome of trial, disposal of taking's count.
P, H Billing to date:
M&H Billing to date:
CAY Time: 15.5
$50,515.65 as of November '06
$94,550.56 as of 10/31105
Galleon Bav v. Monroe County v. State of Florida
Circuit Court 16th Judge: Audlin
Inverse condemnation and vested rights action.
Growth Management/Planning
CA K 02-595
Date Filed: 5/21102
RBS
Current Status: New trial order affirmed.
Next Activity: Trial and additional motions to be scheduled.
M & H Billing to date:
Paul, Hastings Billing:
CAY TIME: 56.5
$54,322.5 thru 1/25/06.
$245,016.00 Costs: $11,611.47
27
Monroe County & State v. Galleon Bav 3D06-2426 & 2427
Third DCA Judges: TBA Date Filed~ 9129106
Appeal of Order granting new trial. Paul, Hasting lead counsel, CAY co-counsel.
Growth Management/Planning RBS
Current Status: New trial order affirmed.
Next Activity: Nothing unless further appellate review authorized and
approved.
Paul, Hastings Billing: See trial level case.
CAY TIME: 3.5
Purdy, Jolly (Summer Baranco)
GEICO v. Monr~ County CA M 06-270
Circuit Court 16 Judge: Audlin Date Filed: 11/22/06
Tort claim for property damage as a result of car accident against MeSO deputy.
Sheriff's insurance fund's carrier defending at no cost to county.
Constitutional Officer/MeSO RBS
Current Status: County filed motion to dismiss.
Next Activity: Hearing on motion to be set.
Time: 2.6 Costs: 0.00
No billing will be received; covered by MeSO insurance.
Assigned staff Attomey
SAH ::: Suzanne Hutton
P JM ::: Pedro Mercado
RBS == Bob Shillinger
28
BOARD OF COUNTY COMMISSION
AGENDA ITEM SUMMARY
Meeting Date: 4/18/07 - Key West
Division County Attorney's Office
Bulk Item: Yes X-
No
Staff Contact Person: Suzanne Hutton
AGENDA ITEM WORDING:
Approval to go out for bid to sell the Hickory House property and to place two newspaper ads of same.
ITEM BACKGROUND:
In 2006, the BOCC purchased the Hickory House for waterfront access by the public. Due to the
County's current budget issues, and the potential difficulties in obtaining a permit to re-open the boat
ramp, it is desired to seek a bid which would recoup the cost of the purchase and provide assurances of
waterfront access by the public. Should the bids be too low or not provide the additional commitments
for waterfront access, a bait/convenience store and any redevelopment to include a minimum of 5
affordable housing units, the BOCC may reject all bids and determine if waterfront park development
is feasible at a later date.
PREVIOUS RELEVANT BOCC ACTION:
Purchase of property.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval to advertise twice in a newspaper of general circulation the request for bid for the
purchase/sale of the Hickory House property.
TOTAL COST:
$250 approx.
BUDGETED: Yes
No
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No X
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty _ OMB/Purchasing _ Risk Management_
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 2/05
MONROE COUNTY
REQUEST FOR BID
Sale/Purchase of "Hickory House" Property
With Conditions for
Public Access to Waterfront,
Bait Shop/Convenience Store
And
WorkForce Housing Units
MONROE COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS
Mayor Mario DiGennaro,
Commissioner Charles "Sonny" McCoy, District 3,
Mayor Pro tern Dixie Spehar, District 1
Commissioner George Neugent, District District 4
Commissioner Sylvia Murphy, District 5
COUNTY ADMINISTRATOR
THOMAS L. WILLI
DIRECTOR OF OMB
SAL ZAPPULLA
CLERK OF THE CmCUIT COURT
DANNY L. KOLHAGE
April, 2007
SECTION ONE
Instruction to Bidders
SECTION TWO
RFB Specifications
SECTION THREE
Sample Contract
SECTION FOUR
General Conditions
SECTION FIVE
BID PROPOSAL
Content of Submission
Selection Criteria
County Forms
35
RFB Sale Hickory House
TABLE OF CONTENTS
Page
3-7
9-16
17- 3
2
8
34 -
SECTION ONE
INSTRUCTION TO BIDDERS
1.01 DESCRIPTION
The County is seeking bids on purchase of the Property previously operated as a restaurant known
as the "Hickory House" at 5948 Peninsular Avenue, Stock Island, Key West, Florida aka 5948
Maloney Avenue, Stock Island, Key West, Florida. Bidders will be offering a purchase price for
the property, which will be sold with the following basic conditions: the Purchaser shall accept a
quitclaim deed; there shall be restrictive covenants which will allow public access to the
waterfront and provide for a bait/convenience store accessible to the public through the subject
parcel or an alternative parcel already owned by, or under 99-year lease by, Bidder in the vicinity
of the subject parcel; and to require that if any development is placed on the subject parcel, the
development shall include a minimum of five (5) workforce housing units.
The Legal Description is:
Lots 30, 31 and the West Y2 of Lot 32, in Square 46, according to Maloney's Subdivision of a part
of Stock Island, Monroe County, Florida, as recorded in Plat Book 1, Page 55, of the Public
Records of Monroe County, Florida.
1.02 DEFINED TERMS
Terms used in the Instructions to Bidders are defined and have the meanings assigned to them in
the General Conditions.
1.03 COPIES OF BIDDING DOCUMENTS
A. Only complete sets of Bidding Documents will be issued and shall be used in preparing
bids. The OWNER does not assume any responsibility for errors or misinterpretations
resulting from the use of incomplete sets.
B. Complete sets of Bidding Documents may be obtained in the manner and at the location
stated in the Notice of Calling for Bids.
1.04 QUALIFICATIONS OF BIDDERS (TO BE SUBMITTED WITH BID)
A. Each bid must contain evidence of the Bidder's qualifications to do business in the area
where the property is located.
B. To demonstrate qualifications to perform the work required by the restrictive covenants,
each Bidder shall submit written evidence as to previous successful experience in
similar work including references, description, volume of present commitments,
evidence of possession of valid state, county, and local licenses.
1.05 DISQUALIFICATION OF BIDDERS
RFB Sale Hickory House
3
A. One Proposal: Only one proposal from an individual, firm, partnership or corporation
under the same or under different names will be considered. In the event evidence is
discovered which indicates a Bidder has interest in more than one proposal for the work
involved, all proposals in which such a Bidder is interested may be rejected.
B. NON-COLLUSION AFFIDAVIT: Any person submitting a bid or proposal in
response to this invitation must execute the enclosed NON-COLLUSION AFFIDAVIT.
If it is discovered that collusion exists among the Bidders, the bid or proposals of all
participants is such collusion shall be rejected, and no participants in such collusion will
be considered in future bids for the same work.
C. PUBLIC ENTITY CRIME: A person or affiliate who has been placed on the convicted
vendor list following a conviction for a public entity crime may not submit a bid on a
contract to provide any goods or services to a public entity, may not submit a bid or
proposal on a contract with a public entity for the construction or repair of a public
building or public work, may not submit bids on leases or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with any public entity, and may
not transact business with any public entity in excess of the threshold amount provided
in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of
being placed on the convicted vendor list. Category Two: $10,000.00
D. DRUG-FREE WORKPLACE FORM: Any person submitting a bid or proposal in
response to this invitation must execute the enclosed DRUG-FREE WORKPLACE
FORM and submit it with his bid or proposal. Failure to complete this form in every
detail and submit it with your bid or proposal may result in immediate disqualification
of your bid or proposal.
1.06 EXAMINATION OF CONTRACT DOCUMENTS
A. Each Bidder shall carefully examine the RFB and other contract documents, and inform
himself thoroughly regarding any and all conditions and requirements that may in any
manner affect cost and performance under the contract. Ignorance on the part of the
BIDDER will in no way relieve the Bidder who executes the purschase/sale contract of
the obligations and responsibilities assumed under the contract.
B. Should a Bidder find discrepancies or ambiguities in, or omISSIOns from, the
specifications, or should he be in doubt as to their meaning, he shall at once notify the
OWNER.
1.07 INTERPRETATIONS, CLARIFICATIONS, AND ADDENDA
No oral interpretations will be made to any Bidder as to the meaning of the contract documents.
Any inquiry or request for interpretation received seven (7) or more days prior to the date fixed
for opening of bids will be given consideration. All such changes or interpretation will be made
in writing in the form of an addendum and, if issued, will be mailed or sent by available means to
all known prospective Bidders prior to the established bid opening date. Each Bidder shall
acknowledge receipt of such addenda in the space provided therefore in the bid form. In case any
Bidder fails to acknowledge receipt of such addenda or addendum, his bid will nevertheless be
construed as though it had been received and acknowledged and the submission of his bid will
RFB Sale Hickory House
4
constitute acknowledgment of the receipt of same. All addenda are a part of the contract
documents and each Bidder will be bound by such addenda, whether or not received by him. It is
the responsibility of each Bidder to verify that he has received all addenda issued before bids are
opened.
1.08 GOVERNING LAWS AND REGULATIONS
A. The Bidder is required to be familiar with and shall be responsible for complying with
all federal, state, and local laws, ordinances, rules, and regulations that in any manner.
affect the work.
B. The Bidder shall include in his bid prices all sales, consumer, use, and other taxes
required to be paid in accordance with the law of the State of Florida and the County of
Monroe, including but not limited to documentary stamps. Monroe County BOCC is tax
exempt from all local, state, and federal sales taxes.
1.09 PREPARATION OF BIDS
Signature of the Bidder: The Bidder must sign the Proposal forms in the space provided for the
signature. If the Bidder is an individual, the words "doing business as ", or "Sole
Owner" must appear beneath such signature. In the case of a partnership, the signature of at least
one of the partners must follow the firm name and the words "Member of the Firm" should be
written beneath such signature. If the Bidder is a corporation, the title of the officer signing the
proposal on behalf of the corporation must be stated along with the Corporation Seal Stamp and
evidence of his authority to sign the proposal must be submitted. The Bidder shall state in the
proposal the name and address of each person interested therein.
1.10 SUBMISSION OF BIDS
A. Two (2) signed originals and one (1) copy of each proposal shall be submitted.
B. The proposal shall be submitted in a sealed envelope which shall be marked so as to
clearly indicate its contents and the name of the Bidder. If forwarded by mail, the
above mentioned envelope shall be enclosed in another envelope addressed to the entity
and address stated in the Notice of Calling for Proposals/Qualifications, and preferably
by special delivery, registered mail; if forwarded otherwise than by mail, it shall be
delivered to the same address. Bids will be received until the date and hour stated in the
Notice of Calling for Proposals/Qualifications.
C. Each Bidder shall submit with his proposal/qualifications the required evidence of his
qualifications and experience, as outlined in Article 1.04.
RFB Sale Hickory House
5
1.11 WITHDRAWAL OF BID
Any proposal may be withdrawn prior to the time scheduled in the Notice of Calling for
Proposals/Qualifications for the opening thereof. All other proposals received must remain valid
for a period of ninety (90) days.
1.12 MODIFICATION OF PROPOSALS
A. Written proposal modification will be accepted from Bidders if addressed to the entity
and address indicated in the Notice of Calling for Proposals/Qualifications and received
prior to response due date and time.
B. A Bidder may modify his proposal by telegraphic communication at any time prior to
the scheduled closing time for receipt of proposals/qualifications, provided such
telegraphic communication is received prior to the closing time, and provided further,
the OWNER is satisfied that a written confirmation of the telegraphic modification over
the signature of the Bidder was mailed prior to the closing time. The telegraphic
communication should not reveal the proposal price, but should provide the addition or
subtraction or other modification so that the final prices or terms will not be known
until the sealed proposals/qualifications is opened. If written confirmation is not
received within two days from the closing time, no consideration will be given to the
telegraphic modification.
1.13 RECEIPT AND OPENING OF BIDS?PROPOSALS
Bids/Proposals will be received until the designated time and will be publicly opened and read
aloud at the appointed time and place stated in the Notice of Calling for Proposals/Qualifications.
Monroe County's representative authorized to open the proposals will decide when the specified
time has arrived and no proposals received thereafter will be considered. No responsibility will
be attached to anyone for the premature opening of a proposal not properly addressed and
identified. Bidders or their authorized agents are invited to be present.
1.14 DETERMINATION OF SUCCESSFUL BIDDER
The OWNER reserves the right to reject any and all bids/proposals and to waive technical errors
and irregularities as may be deemed best for the interests of the OWNER. Bids/Proposals which
contain modifications, are incomplete, unbalanced, conditional, obscure, or which contain
additions not requested or irregularities of any kind, or which do not comply in every respect with
the Instruction to Bidders, and the contract documents, may be rejected at the option of the
OWNER.
1.15 AWARD OF CONTRACT
A. The OWNER reserves the right to reject any or all bids/proposals, or any part of any
bids/proposals, to waive any informality in any proposal, or to re-advertise for all or
part of the work contemplated. If bids/proposals are found to be acceptable by the
OWNER, written notice will be given to the selected Bidder of the acceptance of his
proposal and of the award of the contract to him.
RFB Sale Hickory House
6
B. If the award of the contract is annulled, the OWNER may award the contract to another
Bidder or the proposed sale may be re-advertised as the OWNER decides.
C. The contract will be awarded to the Bidder whose proposal and qualifications includes
the best price with the most complete commitment to the restrictions on the use of the
property.
D. The OWNER also reserves the right to reject the bid of a Bidder who has previously
failed to perform properly or to complete contracts of a similar nature on time.
E. All proposals, including the recommendation of the County Administrator and the
requesting Department Head, will be presented to the Board of County Commissioners
of Monroe County, Florida, for final awarding or otherwise.
1.16 EXECUTION OF CONTRACT
The Bidder to whom a contract is awarded will be required to negotiate specific details of a
purchase/sale contract incorporating the items in the proposal which are the basis for the award of
contract. The Bidder shall return to the OWNER four (4) executed counterparts of the prescribed
contract together with the required certificates of insurance within fifteen (15) days from the date
of notice of acceptance of the Bidder's proposal. A sample contract is provided herein, but is
expected to be modified to correspond to the elements of the selected proposal.
RFB Sale Hickory House
7
SECTION TWO
RFB SPECIFICATIONS
The successful Bidder is expected to enter into a contract with County to purchase the premises
previously known as the "Hickory House," and to provide waterfront access via a pier and/or
boat ramp, and bait/convenience store, all accessible to the general public, on the subject parcel,
or on a nearby parcel already owned, or under a 99-year lease, by Purchaser, as well as possible
residential development requiring a minimum number of units of workforce housing at that
location.
The Bid shall set forth a purchase price. Signature on the Bid Form shall constitute a
commitment to the conditions additional to purchase price, as follows:
1. Purchaser shall obtain all necessary state, federal and local permits and develop a boat
ramp for the use of the public and/or a pier for use by the public for temporary docking of
boats, and a bait/convenience store open to the public on the subject parcel or shall
dedicate by deed restriction or partial long-term lease assignment a nearby parcel for such
uses. The public accessibility shall be committed for a minimum period of fifty (50)
years.
2. If any development of the Property includes residential units of any type, including but
not limited to transient units, Purchaser shall be required to construct on the Property a
minimum of five (5) affordable housing units. This requirement shall be met on-site of
the Property even if the commitments for the public access in paragraph 1, above, are met
by deed restrictions or easements on alternative sites.
AL TERNA TE PROPOSAL:
As indicated above, the public access to waterfront via a pier and/or boat ramp, as well as the
bait/convenience store may be provided through deed restrictions and/or easements on another
parcel(s) of property no farther than one-half mile in distance from the subject Property. A
description of the substituted property shall be set forth in the Bid by RE number, street address,
and legal description in accordance with a plat.
SECTION THREE
SAMPLE CONTRACT
Proj ect: Hickory House
Property Tax J.D. #00126210-000000
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this day of , 2006, between BOARD OF
COUNTY COMMISSIONERS FOR MONROE COUNTY, FLORIDA, a political
subdivision of the State of Florida, as " Seller", c\o Thomas Willi, County Administrator, 1100
Simonton Street, Room 2-205, Key West, Florida 33040, and as " Purchaser"
whose address is
1. In consideration of the mutual promises contained herein, Seller hereby agrees 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.
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:
5948 Peninsular Avenue, Stock Island, Key West, Fl. 33040 aka 5948 Maloney
A venue, Stock Island, Key West, Fl. 33040
The Legal Description is:
Lots 30, 31 and the West Yz of Lot 32, in Square 46, according to Maloney's
Subdivision of a part of Stock Island, Monroe County, Florida, as recorded in Plat
Book 1, Page 55, of the Public Records of Monroe County, Florida.
3. TOTAL PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the
Property is Dollars ($ ) which will be paid by
Purchaser at closing. Seller hereby authorizes Purchaser to issue a certified check 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 Seller's expenses of sale and real estate taxes.
This Total Purchase Price presumes that the Property contains at least 24,375 square feet of land
and approximately 4,495 square feet of building, to be confirmed by the Survey, as provided in
paragraph 5.
Conveyance of the Property in fee simple from Seller to Purchaser will take place at the closing,
in exchange for the payments to be made to Seller at closing as set forth above in this paragraph.
4.A. ENVIRONMENTAL SITE ASSESSMENT. Seller purchased the property in November,
2006, and obtained at that time an update to an existing Phase 2 Environmental Assessment
Report with proof of remediation. Since the purchase, the property has been closed pending
proposed development as a park, and the Seller has provided periodic inspections to insure that
no damage has been rendered to the property. Therefore, Seller shall provide to Purchaser a
copy of the update of the assessment for acts or events subsequent to the effective date of the
Report, or Purchaser may, at its own expense, obtain an environmental assessment.
4.8. 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 terminate this Agreement and neither party shall have
any further obligations under this Agreement. Should Purchaser elect not to terminate this
Agreement, Seller shall, at its sole cost and expense 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 any 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 Hazardous Materials ("Environmental
Law"). However, should the estimated cost of clean up of Hazardous Materials exceed a sum
which is equal to 1 % of the Total Purchase Price as stated in paragraph 3.A., Seller may elect to
terminate this Agreement and no party shall have any further obligations under this Agreement.
5. SURVEY. Seller shall, not less than 35 days prior to the Closing Date, deliver to
Purchaser a boundary survey of the Property prepared by a professional land surveyor licensed
by the State of Florida for the November, 2006 closing on the purchase of the Property..
6. TITLE INSURANCE. Seller shall, at least 35 days prior to the Closing.,Date, furnish to
Purchaser a copy of the following documents provided by the previous owner prior to the
November 2006 closing: marketable title insurance commitment and an owner's marketable title
insurance policy (ALTA Form "B") from a title insurance company, insuring marketable title to
the Property in the amount of the Purchase Price. Purchaser, at its own expense, may obtain an
updated title insurance policy.
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 90 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 therefore,
including the bringing of necessary suits. If Seller is unsuccessful in removing the title defects
within said time or if Seller fails to make a diligent effort to correct the title defects, Purchaser
shall have the option to: (a) accept the title as it then is with a reduction in the Total Purchase
Price by an amount determined by Purchaser and agreed to by Seller, (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 agreed to by Seller, or (d) terminate this Agreement, thereupon
releasing Purchaser and Seller from all further obligations under this Agreement.
8. INTEREST CONVEYED. At closing, Seller shall execute and deliver to Purchaser a
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. PREPARATION OF CLOSING DOCUMENTS. Upon execution of this Agreement,
Seller shall submit to Purchaser a properly completed and executed beneficial interest affidavit
and disclosure statement as required by Sections 286.23, and 380.08(2), 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, and an environmental affidavit. All prepared documents
shall be submitted to Purchaser for review and approval at least 30 days prior to the Closing
Date.
10. PURCHASER REVIEW FOR CLOSING. Purchaser will approve or reject each item
required to be provided by Seller under this Agreement within 30 days after receipt by Purchaser
of all of the required items. Seller will have 30 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. Purchaser 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 9 of this Agreement and any other recordable instruments which the title agent deems
necessary to assure good and marketable title to the Property. Except as provided in this Section
11 or elsewhere in this Agreement, each party hereto shall pay its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
12. TAXES AND ASSESSMENTS. All real estate taxes and assessments which could have
become a lien against the Property shall be satisfied of record by Seller by the date of closing. In
the event the Purchaser acquires fee title to the Property between January 1 and November 1,
Seller, being exempt from taxation , shall have no obligation in accordance with Section
196.295, Florida Statutes, to place in escrow with 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.
13. CLOSING PLACE AND DATE. The closing shall be on or before fill in
date ; 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 60 days after receipt of documentation curing the defects, whichever is
later.
The parties may conduct the closing at an earlier date if they are satisfied that all conditions have
been met prior to the date set herein. For purposes of the Purchaser, the determination that the
conditions have been met prior to the closing date set herein shall require the County
Administrator and County Attorney to sign approval of an earlier closing date and the contract
need not go back before the Purchaser's governing body to reform the contract to provide the
earlier closing date.
14. RISK OF LOSS AND CONDITION OF REAL PROPERTY. Seller assumes all risk of
loss or damage to the Property prior to the date of closing 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. However, in the
event the condition of the Property is altered by an act of God or other natural force beyond the
control of Seller, Purchaser may elect, at its sole option, to terminate this Agreement and neither
party shall 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.
Seller agrees to clean up and remove all abandoned personal property, refuse, garbage, junk,
rubbish, trash and debris from the Property to the satisfaction of Purchaser prior to the 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 the this
Agreement. Seller shall deliver possession of the Property to the Purchaser at closing.
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. DEF A UL T. If Seller defaults under this Agreement, Purchaser 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
permitted by law or in equity resulting from Seller's default. In connection with any dispute
arising out of this Agreement, including without limitation litigation and appeals, the.]Jrevailing
party will be entitled to recover reasonable attorney's fees and costs.
18. RECORDING. This Agreement, or notice of it, may be recorded by Purchaser in the
Official records of Monroe County.
19. ASSIGNMENT. This Agreement may not be assigned by either Party without the prior
written consent ofthe other Party.
20. TIME. Time is of essence with regard to all dates or times set forth in this Agreement.
21. SEVERABILITY. In the event any of the provisions of this Agreement are deemed to be
unenforceable, the enforceability of the remaining provisions of this Agreement shall not be
affected.
22. 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, 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.
23. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties. No supplement,
modification or amendment to this Agreement shall be binding unless executed in writing by the
parties.
24. 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 covenant, condition or right; but the same
shall remain in full force and effect.
25. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or
alteration thereto, shall not be effective or binding upon any of the parties hereto until it has been
executed by all of the parties hereto.
26. ADDENDUM. Any addendum attached hereto that is signed by the parties shall be
deemed a part of this Agreement.
27. NOTICE. Whenever either party desires or is required to give notice unto the other, it
must be given by written notice, and either delivered personally or mailed to the appropriate
address indicated on the first page of this Agreement, or such other address as is designated in
writing by a party to this Agreement.
28. SURVIVAL. The covenants, warranties, representations, indemnities and undertakings
of Seller set forth in this Agreement shall survive the closing, the delivery and recording of the
deed described in paragraph 8. of this Agreement and Local Government's possession of the
Property.
29. Purchaser shall have twenty (20) days from execution of this Contract to obtain the
appraisals and to determine the Maximum Approved Purchase Price as discussed in Paragraph 3.
During this period, Purchaser shall also review the existing survey, the prior policy of title
insurance and the Phase 2 Environmental Site Assessment Report with proof of remediation (all
provided by Seller upon Seller's execution of this Contract). In the event Purchaser objects to
any of the conditions shown on the existing title evidence, surveyor Environmental Site
Assessment Report, Purchaser shall provide written notice to Seller prior to the expiration of
twenty (20) days from the date of execution of this Contract. In the event Purchaser fails to
provide written notice during said period, Purchaser agrees that the conditions shown on the
existing title evidence and survey shall be acceptable and only new conditions not shown on said
title documents would be considered title defects subject to the provisions of the Contract.
Additionally, in the event Purchaser fails to provide written notice during the above-described
period of time, Purchaser agrees that the Environmental Site Assessment Report and proof of
remediation shall be acceptable and only new conditions shown on the new Phase I
Environmental Site Assessment Report shall be subject to the provisions of the Contract. Only
upon expiration of the above-described period of time and Purchaser's acceptance of the
conditions set forth in the existing survey, prior title policy and existing Phase 2 Environmental
Site Assessment, Seller shall obtain the new Environmental Site Assessment (described in
Paragraph 4), the new Survey (described in Paragraph 5) and the new title evidence (described in
Paragraph 6).
THE PURCHASER'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS
CONTRACT IS CONTINGENT UPON AN ANNUAL APPROPRIATION BY THE
LEGISLATURE.
THIS IS TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD,
SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING.
Property Tax I.D.#: 00126210-000000 AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE
SELLERS
MONROE COUNTY, FLORIDA
Attest: DANNY L. KOLHAGE, CLERK
By:
By:
Mayor Mario DiGennaro
Deputy Clerk
Approved as to Form
By:
Date:
(SEAL)
PURCHASER
Witness
By:
Witness
STATE OF Florida )
COUNTY OF Monroe)
The foregoing instrument was acknowledged before me this day of
by . He/she is personally known to me or produced
identification.
,2006,
as
(NOTARY PUBLIC)
SEAL
Notary Public
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
ADDENDUM
(IMPROVEMENTS/PURCHASER)
A. Radon Gas. Radon is a naturalIy occurring radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained
from your county public health unit. This notice is being provided in accordance with Section 404.056(8), Florida Statutes.
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 properly certified by the Florida Department of Health and Rehabilitative Services.
If radon gas or radon progeny is discovered, Purchaser 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.
B. Wood Destroving Organisms Inspection ReDort. Purchaser may, at its sole cost and expense, obtain a Wood
Destroying Organisms Inspection 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. Purchaser shalI 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 ImDrovements. Seller shalI, if required by Purchaser, maintain the roofs, doors, floors, stcps, windows,
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 pcrsons dealing in the repair and maintenance
thereof: If thc inspection reveals that any of the improvements that wilI remain on the Property are in need of repair, Purchaser
shalI have the option to either: (a) accept the Property as it then is with no reduction in the Purcha~e Price or (b) terminate this
Agreement, thereupon releasing Purchaser and SeIler from all further obligations under this Agreement.
SELLERS
PURCHASER
MONROE COUNTY, FLORIDA
By:
By:
Mayor Charles "Sonny" McCoy
Date signed by Seller
Date signed by Purchaser
By:
Date signed by Seller
Date:
(SEAL)
Attest:
CONTRACTOR
By:
By:
WITNESS
Title:
Title:
By:
WITNESS
Title:
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list following a
conviction for public entity crime may not submit a bid on a contract to provide
any goods or services to a public entity, may not submit a bid on a contract with a
public entity for the construction or repair of a public building or public work, may
not submit bids on leases of real property to public entity, may not be awarded or
perform work as a contractor, supplier, subcontractor, or consultant under a
contract with any public entity, and may not transact business with any public
entity in excess of the threshold amount provided in Section 287.017, for
CATEGORY TWO for a period of36 months from the date of being placed on the
convicted vendor list."
SECTION FOUR
GENERAL CONDITIONS
DEFINITIONS
Wherever used in these General Conditions or in the other contract documents the terms below
have the meanings indicated which are applicable to both the singular and plural thereof. The
use of the terms "he", "him", "himself', or "his" shall refer to male and female persons alike and
should not be construed as derogatory or discriminatory to female persons.
Addenda
Written or graphic instruments issued prior to the opening of bids which clarify, correct,
or change the bidding documents or the contract documents.
Agreement
The written agreement between the Owner and the Contractor covering the work to be
performed; other contract documents are attached to the agreement and made a part
thereof as provided therein.
Bid
The offer, proposal, or bid of the Bidder submitted on the prescribed form setting forth
the prices for the work to be performed.
Bidding Documents
The advertisement or invitation to bid, instructions to Bidders, the bid form, and the
proposed contract documents (including all addenda issued prior to receipt of bids).
Contract Documents
The bidding documents, agreement, addenda (which pertain to the contract documents), the
Contractor's bid (including documentation accompanying the bid and any post-bid
documentation submitted prior to the notice of award) when attached as an exhibit to the
agreement, the bonds, and the specifications as the same are more specifically identified in
the agreement, together with all amendments, modifications, and supplements.
Contract Price
The moneys payable by the Contractor to the Owner under the contract documents as
stated in the agreement.
Contract Time
The Contract shall be in force and binding on the Owner and the Contractor for a period
of five (5) years from the effective date of the agreement.
Contractor
The person, firm, or corporation with whom the Owner has entered in to the agreement.
Defective
An adjective which when modifying the word work refers to work that is unsatisfactory,
faulty, or deficient, or does not conform to the contract documents or does not meet the
requirements of any inspection, reference standard, test, or approval referred to in the
contract documents, or has been damaged prior to the Owner's recommendation of
payment.
Effective Date of the Agreement
The date indicated in the agreement on which it becomes effective, but if no such date is
indicated it means the date on which the agreement is signed and delivered by the last of
the two parties to sign and deliver.
Laws and Regulations; Laws or Regulations
Laws, rules, regulations, ordinances, codes and/or orders.
Notice of Award
The written notice to the apparent successful Bidder stating that upon compliance by the
apparent successful Bidder with the conditions precedent enumerated therein, within the
time specified, the Owner will sign and deliver the agreement.
Owner
The Monroe County Board of Commissioners with whom the Contractor has entered into
the agreement and for whom the work is to be provided.
Proposal
The offer or proposal bid of the Bidder submitted in a format setting forth the
qualifications of the Bidder and the prices and other conditions under which services
shall be performed.
Work
The operation of a full-service bar and restaurant.
Written Amendment
A written amendment of the contract documents, signed by the Owner and the Contractor
on or after the effective date of the agreement.
AMENDING AND SUPPLEMENTING CONTRACT DOCUMENTS:
The contract documents may be amended to modify the terms and conditions thereof only
by a Written Agreement.
SECTION FIVE -BID PROPOSAL
1. CONTENT OF SUBMISSION
The bid submitted in response to this RFB shall be printed on 8-1/2" x 11" white paper;
shall be clear and concise and provide the information requested herein. The bid shall be
stapled and not be bound or tabbed. Statements submitted without the required information
will not be considered. Bids/Proposals shall be organized as indicated below. The
bidder/respondent should not withhold any information from the written response in
anticipation of presenting the information orally or in a demonstration. Each
Bidder/Respondent must submit adequate documentation to certify the
Bidder's/Respondent's compliance with the County's requirements. Bidder/Respondent
should focus specifically on the information requested.
The following information, at a minimum, shall be included in the Submittal:
A. Cover Page
A cover page that states "BID - PURCHASE OF HICKORY HOUSE
PROPERTY". The cover page should contain Bidder's name, address, telephone
number, and the name of the Bidder's contact person.
B. General Information
1. A list of the entity's shareholders with five (5) percent or more of the stock or, if
a general partnership, a list of the general partners; or, if a limited liability
company, a list of its members; if unincorporated and not a partnership, the
name(s) of owners.
2. A list ofthe officers and directors of the entity;
3. The number of years the entity has been operating and, if different, the number
of years it has been providing the services, goods, or construction services
called for in the RFP/Q;
4. The number of years the entity has operated under its present name and any
pnor names;
5. Whether, within the last five (5) years, an officer, general partner, controlling
shareholder or major creditor of the bidder was an officer, general partner,
controlling shareholder or major creditor of any other entity that failed to
perform services or furnish goods similar to those sought in the request for bids;
6. Customer references
7. Credit references
C. Relevant Experience
The Bidder/Respondent shall provide a project history of the firm or organization
demonstrating its experience with projects that may be comparable to the requirements
for waterfront access, bait/convenience store, and/or affordable housing development.
D. References, Including Past Performance on Similar Proiects
The Bidder shall provide a list of past clients who may attest to the Bidder's ability to
meet the commitments made, along with the following:
Name and full address
Name and telephone number of client contact
Date of initiation and completion of contract
Summary of the services and area served.
E. Litigation
Answers to the following questions regarding claims and suits:
a. Has the bidder ever failed to complete work or provide the goods for which it has
contracted? (If yes, provide details.)
b. Are there any judgments, claims, arbitration proceeding or suits pending or
outstanding against the bidder, or its officers or general partners? (If yes, provide
details. )
c. Has the bidder, within the last five (5) years, been a party to any lawsuit or
arbitration with regard to a contract for services, goods, or construction services
similar to those requested in the RFP? (If yes, the Respondent shall provide a
history of any past or pending claims and litigation in which the Respondent is
involved as a result of the provision of the same or similar services which are
requested or described herein.)
d. Has the bidder ever initiated litigation against the county or been sued by the
county in connection with a contract to provide services, goods, or construction
services? (If yes, provide details.)
F. County Forms and Licenses
Bidder shall complete and execute the forms specified below:
Proposal Form with Acknowledgment of Bid Addenda
Lobbying and Conflict of Interest Clause
Non-Collusion Affidavit
Drug Free Workplace Form
Bidder's Insurance and Indemnification Statement
Insurance Agent's Statement
SELECTION CRITERIA
Selection criteria to be used to evaluate proposals shall include, but not be limited to, the
following:
a. Purchase Price to County.
b. Commitment to the conditions public access to waterfront, bait/convenience store,
and affordable workforce housing..
c. Past record of performance with the County or other jurisdictions.
d. Competence and experience of key staff.
e. Past awards and/or commendations of the Contractor and/or staff members.
f. Corporate structure - oversight of a Board of Directors over the operations.
PROPOSAL
I acknowledge receipt of Addenda No. (s)
I have included page35 through 39 of the Proposal which entails the Proposal Form_, the
Non-Collusion Affidavit _, and the Lobbying and Conflict of Interest Clause _, and the
Drug Free Workplace Form _' In addition, I have included all requirements as stated in
Section One, Article 1.04 Paragraphs A and B.
(Check mark items above. as a reminder that they are included.)
Mailing Address:
Telephone:
Fax:
Date:
Signed:
Witness:
(Seal)
(Name)
(Title)
NON-COLLUSION AFFIDAVIT
I, of the city of
according to law on my oath, and under penalty of perjury, depose and say that:
1. I am
of the firm of
the Bidder making the Proposal for the project described in the Notice for Calling for bids for:
and that I executed the said proposal with full authority t do so:
the prices in this bid have been arrived at independently without collusion, consultation, communication or
agreement for the purpose of restricting competition, as to any matter relating to such prices with any
other Bidder or with any competitor;
unless otherwise required by law, the prices which have been quoted in this bid have not been knowingly
disclosed by the Bidder and will not knowingly be disclosed by the Bidder prior to bid opening,
directly or indirectly, to any other Bidder or to any competitor; and
no attempt has been made or will be made b the Bidder to induce any other person, partnership or
corporation to submit, or not to submit, a bid for the purpose of restricting competition;
5. the statements contained in this affidavit are true and correct, and made with full
knowledge that Monroe County relies upon the truth of the statements contained in
this affidavit in awarding contracts for said project.
(Signature of Bidder)
(Date)
STATE OF:
COUNTY OF:
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
who, after first being sworn by me, (name of individual signing) affixed his/her signature in the space provided
above on this day of 20_
NOTARY PUBLIC
My Commission Expires:
SWORN STATEMENT UNDER ORDINANCE NO. 10-1990
MONROE COUNTY, FLORIDA
ETHICS CLAUSE
warrants that he/it has not employed, retained
or otherwise had act on his/its behalf any former County officer or employee in violation of
Section 2 of Ordinance No.1 0-1990 or any County officer or employee in violation of
Section 3 of Ordinance No.1 0-1990. For breach or violation of this provision the County
may, in its discretion, terminate this contract without liability and may also, in its discretion,
deduct from the contract or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration paid to the former County officer or employee.
(signature)
Date:
STATE OF
COUNTY OF
PERSONALL Y APPEARED BEFORE ME, the undersigned authority,
who, after first being sworn by me, affixed his/her
signature (name of individual signing) in the space provided above on this
day of
,20_
NOTARY PUBLIC
My commission expires:
OMB - MCP FORM #4
DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that:
(Name of Business)
1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or
use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against
employees for violations of such prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-
free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties
that may be imposed upon employees for drug abuse violations.
3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of
the statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employees that, as a condition of working on the
commodities or contractual services that are under bid, the employee will abide by the terms of the statement and
will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893
(Florida Statutes) or of any controlled substance law of the United States or any state, for a violation occurring in the
workplace no later than five (5) days after such conviction.
5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program
if such is available in the employee's community, or any employee who is so convicted.
6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Bidder's Signature
Date
MB - MCP
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18. 2007
Bulk Item: Yes --X- No
Division: County Attorney
Department: County Attorney
Staff Contact Person: Cynthia Hall
AGENDA ITEM WORDING:
Approval to advertise a public hearing for an ordinance amending Sec. 13.5-5 of the Monroe County
Code, creating Ramrod Park.
ITEM BACKGROUND: The intent ofthis ordinance is to create a passive public park on Lot 2,
Block 3, Silver Shores Estates, on the north (Gult) side of Ramrod Key at the end of Bay Shore Drive,
in response to requests by local residents, in order to (a) prohibit use of the property between sunset
and 7:30 a.In. and the consumption of alcohol at any time, while (b) continuing to allow other
residents, including those with pets, to use the property for recreational purposes.
PREVIOUS RELEVANT BOCC ACTION: The property was previously owned by Monroe
County Land Authority. On March 21,2007, the Land Authority conveyed title to Monroe County so
that the subject property couId be developed as a public park, and the Monroe County BOCC accepted
the conveyance.
CONTRACT/AGREEMENT CHANGES: Not applicable.
STAFF RECOMMENDATIONS: Approval to advertise for June 20, 2007 hearing in Marathon.
TOTAL COST: N/ A
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No 1.L
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty X OMB/Purchasing _ Risk Management _
DOCUMENTATION:
Included
To Follow_
Not Required_
DISPOSITION:
AGENDA ITEM #
ORDINANCE NO. -2007
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, AMENDING SECTION 13.5-5, MONROE
COUNTY CODE, BY THE ADDITION OF RAMROD PARK TO SECTION
13.5-5(a); AMENDING SECTION 13.5-5(m) IN ORDER TO ADD RAMROD
PARK TO THE LIST OF PARKS THAT ALLOW ANIMALS; ADDING
SECTION 13.5-5(r); PROVIDING FOR SEVERABILITY; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH;
PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE
OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners of Monroe County, Florida,
has received a request from neighbors in the vicinity of Lot 2, Block 3, of Silver
Shores Estates on Ramrod Key to prohibit parties from occurring at night at this
geographic location and to prohibit the use of alcoholic beverages at this location;
and
WHEREAS, on January 16, 1997, the Board of County Commissioners of
Monroe County, Florida, passed and adopted Ordinance 01-1997, placing
restrictions on the use of alcoholic beverages in parks, setting park hours for any
parks enumerated within the Monroe County Code of Ordinances, and establishing
penalties for violations of the applicable sections of the Monroe County Code; and
WHEREAS, Lot 2 in Block 3, Silver Shores Estates on Ramrod Key has been
known in the community for a number of years as the "Ramrod Key Swimming Hole"
and has been used for a number of years as a friendly daytime gathering place for
pets; and
WHEREAS, the zoning designation for Lot 2 in Block 3, Silver Shores Estates
on Ramrod Key was changed from NA (Native Area) to PR (Parks and Refuge); and
WHEREAS, Monroe County is known as a dog-friendly community; and
WHEREAS, section 13.5-5 of the Monroe County Code of Ordinances
currently allows pets at certain Monroe County parks under specified conditions; and
WHEREAS, section 13.5-5(m) of the Monroe County Code of Ordinances,
which prohibits domestic animals from county parks except those parks listed in
subsection (m), should also be amended to include 13.5-5(p), which refers to the
greenspace at Higgs Beach County Park.
1
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, AS FOLLOWS:
[pROPOSED TEXT CHANGES are presented in strikethrough to indicate
deletions and underline to indicate additions.]
Section 1. Section13.5-5(a), Monroe County Code, is hereby amended as
follows to add Ramrod Park to the list of parks:
(19) Ramrod Park means Lot 2. Block 3. Silver Shores Estates.
according to the Plat thereof as recorded in Plat Book 4. Paoe 111 of
the Public Records of Monroe County. Florida. RE#00211080-000000.
Section 2. Section 13.5-5(m), Monroe County Code, is hereby amended to
read as follows:
(m) Except for animals that assist disabled persons, and except as
provided in (n) and (0) -(p) and (r), below, domestic animals are
prohibited from all county parks. No person may cause or allow any
domestic animal (of whatever size), other than an animal that assists a
disabled person, to be brought to, or remain on, any county park other
than those listed below in (n) and (0) -(p) and (r).
Section 3. Section 13.5-5, Monroe County Code, is hereby amended by
the addition of the following:
f.!:1 Pets are allowed at Ramrod Park subiect to the followino
reoulations:
(1) Owners must clean UP after pets and properly dispose of
waste.
(2) Pets exhibitino aooressive behavior or creatino a
nuisance must be immediately removed by the owner.
(3) All doos must have current rabies vaccinations and
county licenses and be wearino their taos at all times
while in the park.
(4) Doos in heat. ill. or havino excessive fleas. ticks. or other
internal or external parasites are not allowed.
(5) All doos must be accompanied at all times by an adult
human owner or handler.
(6) There shall be no more than three (3) dogs per owner or
handler per visit.
(7) Puppies under the aoe of four (4) months are not
allowed.
(8) If a dog dios. the dog must be stopped immediately and
the owner/handler must fill the hole.
2
Section 3. If any section, subsection, sentence, clause, or provision of this
ordinance is held invalid, the remainder of this ordinance shall not be affected such
invalidity.
Section 4. All ordinances or parts of ordinances in conflict with this
ordinance are hereby repealed to the extent of the conflict.
Section 5. The provisions of this ordinance shall be included and
incorporated in the Code of Ordinances in the County of Monroe, Florida, as
additions or amendments thereto, and the Monroe County Code shall be
appropriately renumbered to conform to the uniform numbering system of the Code.
Section 6. This ordinance shall take effect immediately upon receipt of
official notice from the Office of the Secretary of State of the State of Florida that this
ordinance has been filed with said Office.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the _ day of April, 2007.
Mayor Mario Di Gennaro
Mayor Pro T em Dixie Spehar
Commissioner Charles McCoy
Commissioner Sylvia Murphy
Commissioner George Neugent
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY
COMMISSIONERS OF MONROE
COUNTY, FLORIDA
By: Deputy Clerk
By: Mayor/Chairperson
MONROE COUNTY ATTORNEY
"t'~SlO rIP!
YNTHIA L. HAL
ASSISTANT COUNTY ATTORNEY
Date y.- J- - 0-=1-
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BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
April 18.2007
Division:
County Attorney
Bulk Item: Yes --1L- No
Department: County Attorney
Staff Contact Person: Bob Shillinger, ext. 3474
AGENDA ITEM WORDING: Approval of Settlement Agreement to resolve Circuit Court Case
No. 2005-CA-420-K, regarding unpaid code enforcement liens.
ITEM BACKGROUND: The County brought this action to enforce unpaid code enforcement
liens filed again Liz and his property. The defendant's declining mental health has necessitated
appointment of a guardian by the Court and the defendant's mental health status raises
questions about his ability to appreciate the nature and consequences of the underlying code
enforcement actions. The parties have agreed to resolve their differences amicably and reach a
good faith settlement of this matter. The proposed Settlement Agreement is attached as backup.
PREVIOUS RELEVANT BOCC ACTION: Discussion on this subject.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS: Approve Settlement Agreement.
TOTAL COST:
N/A
BUDGETED: Yes No
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty --L OMB/Purchasing _ Risk Management_
DOCUMENT ATION:
Included x
Not Required
DISPOSITION:
AGENDA ITEM #
Revised 2/05
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
LOWER KEYS CIVIL DIVISION - JUDGE JONES
MONROE COUNTY, FLORIDA
Plaintiff,
vs.
CASE NO.: 2005-CA-420-K
PEDRO MARTINIANO LIZ,
Defendant.
I
SETTLEMENT AGREEMENT
The Plaintiff Board of County Commissioners of Monroe County (hereinafter
("the County") and the Defendant Pedro M. Liz ("Liz") hereby agrees to settle the above-
styled matter as follows:
WHEREAS the County brought this action to enforce unpaid code enforcement
liens filed against Liz and his property located at Lots 1 and 50, Block 13, Square 46,
Maloney Subdivision, Stock Island, Key West, Monroe County, Florida; RE number
00126060-000000, ("the property") as a result of violations found in Code Enforcement
case numbers L2-02-904 and M9-01-293; and
WHEREAS said liens were imposed to secure daily fines totaling $600.00 per day
one of which commenced running on November 26,2001, the second of which
commenced running on March 22,2002, both of which continue to accrue until the
property is either brought into compliance or foreclosed upon by the County; and
WHEREAS the County's lien against the property, as of March 1,2007, had
reached $1,095,200.00 plus costs and attorneys fees; and
WHEREAS the County's incurred costs in the amount of $228.64 and attorney's
fees in the amount of$2,500.00 in its efforts to collect this fine as of the date of this
agreement; and
WHEREAS the Defendant's declining mental health has necessitated the
appointment of a guardian by the Court in case number 44-2006-MH-46-K; and
WHEREAS, the Defendant's mental health status raises questions about his
ability to appreciate the nature and consequences of the underlying code enforcement
actions and the above-styled matter; and
WHEREAS, in consideration of the provisions stated herein, the Guardian for the
Defendant has agreed to waive any and all issues related to the Defendant's competency
as it pertains to the defense of this matter; and
WHEREAS the parties desire to resolve their differences amicably and reach a
good faith settlement of this matter; now therefore, the parties agree to:
1. Within 365 days of the date this agreement is approved by the County
Commission, the Defendant agrees to remedy all violations referenced in
Code Enforcement cases L2-02-904 and M9-01-293 from the property.
2. If said violations have been cured by the compliance date set forth in
paragraph one of this agreement, the fines imposed by the Code
Enforcement Special Magistrate shall be forgiven completely except as
more fully set forth herein.
3. If said violations have not been cured by the compliance date set forth in
paragraph one of this agreement, the Defendant or his agent, including but
not limited to personal representative, guardian, and/or attorney in fact,
will acknowledge a valid Monroe County Code Enforcement Lien against
the property in the agreed amount of$1,500,000.
4. The compliance date set forth in paragraph one of this agreement may be
extended by agreement, or if no agreement is reached between the parties,
by the Court for good cause shown.
5. The Defendant agrees to the Court entering judgment against him in the
amount of$3,000.00 to secure payment of the County's costs and
attorney's fees in this matter. Said amount shall represent the total fines
and costs owed by the defendant. Said judgment shall be entered by the
Court at the time it approves this settlement agreement and shall be
secured by a lien against the property in the aforementioned amount if not
paid within 60 days of the court's judgment.
6. Defendant acknowledges that, to become effective, this agreement must be
approved by the Board of County Commissioners at a duly advertised,
public meeting.
7. By entering into this agreement, the each party agrees to waive any and all
claims that it could have raised and/or potential claims that it might have
been able to raise as a result of the above-captioned code enforcement
case.
8. Both parties warrant that they have had an opportunity to consult with
counsel before entering into this agreement.
9. Each party agrees to bear its own costs and attorney's fees other than as
specified in this agreement.
10. The Court shall retain jurisdiction over the matter to ensure compliance
with the terms of this agreement. Should any party seek to invoke the
power of the Court to compel compliance with the terms of this
agreement, the prevailing party shall be entitled to its reasonable costs
including attorney's fees.
11. This three page agreement represents the entire agreement. There are no
separate or side agreements, either written or verbal, that apply to this
matter.
ATTEST:
DANNY L. KOLHAGE
CLERK:
BOARD OF COUNTY COMISSIONERS
OF MONROE COUNTY, Plaintiff
By:
Deputy Clerk
By:
Mario Di Genarro, Mayor
Dated
For the Defendant Pedro M. Liz,
~~
NOTARY PUBllC.STATE OF FLORID:
~ Sally Jo Valenzuela
Commission #DD531632
Expires: MAY 01, 2010
Bonded Thru Atlantic BGnding Co., Inc.
By:~~/1./~
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BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
4/18/2007 - KL
Division:
County Attorney
Bulk Item: Yes
No --X-
Department: County Attorney
Staff Contact Person: Bob Shillinger
AGENDA ITEM WORDING: Request to schedule a closed executive session of the Board of
County Commissioners in the matter of Thomas Collins et al. v. Monroe County, CA M 04-379 on
Tuesday, May 15, 2007 beginning at 1:30 p.m. in Key Largo or at a future date, time and location to be
determined by the BOCC.
ITEM BACKGROUND: Judge Audlin has issued a scheduling order that requires the parties to
return to mediation in this takings case by June 10,2007 (date). Per F.S. 286.011(8), the subject matter
of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation
expenditures.
Present at the meeting will be the Commissioners, County Administrator Tom Willi, County Attorney
Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney Susan
Grimsley and the County's special litigation counsel Stephen Moore, Esq. and Derek Howard Esq. and
a certified court reporter.
Due to various factors, staff is recommending that the closed session be held on a date other than the
May 16, 2007 BOCC meeting.
PREVIOUS RELEVANT BOCC ACTION: None.
CONTRACTIAGREEMENTCHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST:
BUDGETED: Yes ~ No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No xx
AMOUNTPERMONm_ Year
APPROVED BY: County Atty -1L- OMB/Purchasing _ Risk Management _
DOCUMENTATION:
Included
x
Not Required _
DISPOSITION:
AGENDA ITEM #
Revised 2/05
MFIl'-;:!S-2007 12:07 ~:
TO: 92923516
IN THE CIRCUIT COURT OF THE 16'"'
JUDICIAL CIRCUIT Of THE STATE OF
FLOIIDI\ IN AND FOR MONROE COUNTY
CASE NO: 2004-CA-379-M
THOMAS F. COLLINS_ PAmelA
COlLINS, tt II..
...........
VS.
MONROE COUNTY. a poIdaI.......
Of die SUIt of Florida.
IWendanC
VS.
STATE OF FlOl.lIM.
TI*d-Party Def.....
I
JCHIDULlNG OlDER
THIS CASE IIIuIIw ... ...... II, .... ColIn ..... CO .... 1.2OO(a). FlorIda
Rides of CJvI PromdIIre, ... ... 2.085. FlorIda .... of )udIdII AIIII . b....,.....
I'tIII'd to tile c.n'1 ~do... dllllIDIder, and Caart .... ,.., ..... .. 1M
........, Ie II ......,
0ltDEUD . follows:
1. SUYICE OF SCHEDUUNG OIDEI: If.... of ...... IllS IIOt Jilt ......
effeaelI OIIIW~I) at tile .... .... ~... 0rdIr II .......
I'IIIndIf's aaorney II ~ ..... 10 ...". I ClIIP1 of rlIfs Onfer 011 all
DehncIIncs wIddn ten ." 0ftClI .....Is ~ aM fUrther. .. .". I
CllW on lIlY ... party to die acdan, wIddJllIII ..,. of...... fA.... on
., .. party.
2. fACT WfTNESSES AND EXJlllm: AM fIc:t wftneaIS IIICI ......... must be
cIsdoIecI by AMIliA .ItItJ?
J. EXPERT WITNISSES: AI expert __ IIIUIlh ....... by AId 1ft
ztJtJ7.
4. DISCOVERY CUTQff: AlA discovery IhIII be anpIlCed II)' IUd 34 MJD7.
P.2'6
NAP-ag-2liI07 1&:ea ~ROM:
TO: 929C3S16
5. MOTION FILING DEADUNE: M dIDdoIIs, 1nducIJw......., JucIImIIIC
modDns, shill be fled ." HIIY ~ ztltJ7.. Anr IIIDdoII flied II.. tIIIt dice wDl
be ....... uncImeIy" ......
6. MOTION HEARING bfADLINE: TlnMIJ' fled tnodonI5haII be sdIeduIecI and
heIrd on or before Hw IS, ztJD7. Atr1111Odon1 not heaRt by dIat ,. wm be
dIIdId.
7. MEDIATION 1EOUI1tEMlNT: The __ wit c.ompIer& IIIIdIadoR of lids
c.- by _ 10, 2007. M..... _...... or _Ie with full
.......... ~ ... __ _ dIeIr........ ....... ~
..... . .......... .... not lie a .... 110 be .... from ... ........
............ """", ~ Is dhc:awd ID CIINWCINre die ml"'" .... all
0dIer...... If no 1IIICIIadDa...... II" the c.t fie by)Me 18,2007,
&ht Court.., fmpare ...... aIICdDns, Inc:Iudblt (Me 4IsnIIIUII or mIIlq
of .......
e. MOTIONS IN UMII!J: TlaellIIIDdcmI... be ..... ..... ..... . 1ft forth
Ibove. tile Court .. ..... ....... fa ...... after ..... ...... onfy upon ..
IhowIIII dIM: die ,... ... for .. ...... CDIIfd IIOC hive ..... NIIOOIIII,.
Ic:nowII by CDIIIR befon die ...... IIIIIdaft cfedne.
9. OVEI TlME STANDARDS CASES: CounIII............. 4IIsaMrJ ... 110I
be ~J IItId, ... ..'I IICII! of dill .... .... wit .... 1M p'IfttlId far ca-. that
.... exaeded ... ..... sundInIs:
(CIvIl: 1. IIIOIdIII ,.... .... .... of ... CompIIInt ("'FFOe" far Jury
~ 12...... fFOC far nDItiUIY ~ ,...., -~ 110
-
FFOC, U~, 90" FFOC)
absent alhowlq of ~~ c:trcuI...... elm JuRIfJ lUdIal'4lqlMa.
10. SPECIAL CASE MANAGEMENT 1EOUJ1IMDfIl: ..... be MvIIed ....
betIIImIrw July 1, 2007, c:-. wIIkh 11M! ....... appIkaIIIe ..... ......
INIJ be piked 011 the Coart's spedIl...-llly c:.- ......... ....
aIencfIr to ... CDUnIIf In NSOIudon of d..-~. He ........
........... .. ,....... far ... .........
11. SPTlEMINT: CCIUIIIII........ CO III a fuIIJ ~ wrIaen IdpuIadon
and pIOINIIId onI.- 01 dIInIIIIII bIfcn MY""'" case wII be taken off die
Court'. cIoc:kfl. .
DONI and ORDERED In Qamben at "-'~' florida, eNs
2" day fIIMIrCh, 2001. _ _
UlTJ
P.3'6
~lA.'?-ae-2007 12:e113 FROI'f:
TO:929C~16
P.4'6
cc: )amII S. MIasGn, Esq., via fICIImIIt
AftIJrfNt M. ToIIIn, Esq., \III fICIIInIe
$tepheft J. MDan,. Esq., via faaImIe
JOMdMn GIopa, Esq.. . ,....
.... ......" Esq., via ,.......
Rebert H. freIIc:II, Esq... via 'aaImIe
DeNt Y. tIoMrd. Esct... vii ,........
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
4/18/2007 - KL
Division:
County Attorney
Bulk Item: Yes -----.X.- No
Staff Contact Person: Suzanne Hutton
AGENDA ITEM WORDING:
Approval of a resolution authorizing the acceptance of Block H, Lot 10, Part C of Master Plat of North
Marathon Shores from the Monroe County Land Authority for affordable housing.
ITEM BACKGROUND:
The subject property consists of a vacant 7,200 square foot lot on Bonito Drive in Marathon zoned
Improved Subdivision and nominated by the Marathon City Council for affordable housing. Habitat for
Humanity of the Middle Keys proposes to build a single-family home on the lot. The Land Authority is
in the process of purchasing the lot, imposing aWordable housing deed restrictions, and conveying title
to the BOCC as part of the land bank of affordable housing properties. The proposed resolution
authorizes acceptance of the deed-restricted title. The BOCC could then impose its own deed
restrictions and transfer title to the Middle Keys Habitat for Humanity Community Land Trust.
PREVIOUS RELEVANT BOCC ACTION:
On September 28, 2005 the Board indicated its desire to have affordable housing land bank properties
titled in the BOCC. On March 21,2007, sitting as the Land Authority, the Board approved purchasing
the subject property and conveying same to the BOCC.
CONTRACf/AGREEMENTCHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST:
BUDGETED: Yes ~ No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No xx
AMOUNTPERMONTB_ Year
APPROVED BY: County Atty --X- OMBlPurchasing _ Risk Management _
DOCUMENTATION:
Included
x
Not Required _
DISPOSITION:
AGENDA ITEM #
Revised 2/05
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE ACCEPTANCE OF BLOCK H, LOT 10,
PART C OF MASTER PLAT OF NORTH MARATHON SHORES
FROM THE MONROE COUNTY COMPREHENSIVE PLAN LAND
AUTHORITY FOR AFFORDABLE HOUSING.
WHEREAS, sections 125.01(1)j and 125.01055, Florida Statutes (FS) empower the Board of
County Commissioners of Monroe County, Florida (hereinafter "BOCC") to take measures
necessary to increase the supply of affordable housing; and
WHEREAS, section 125.35, FS empowers the BOCC to sell or lease real property to the
highest and best bidder for the particular use the BOCC deems to be the highest and best or
to adopt by ordinance alternative standards and procedures to sell or lease real property; and
WHEREAS, section 125.38, FS empowers the BOCC to sell or lease real property to
government or not for profit organizations at a price of the BOCC's choosing; and
WHEREAS, based on the above enabling legislation, the BOCC desires to control and
oversee the development of certain affordable housing sites acquired by the Monroe County
Comprehensive Plan Land Authority; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA, that:
1. The BOCC hereby agrees to accept title from the Monroe County Comprehensive Plan
Land Authority for the following affordable housing site: Block H, Lot 10, Part C of Master
Plat of North Marathon Shores in Marathon.
2. The BOCC hereby acknowledges that use of the above property will be restricted to
affordable housing as defined in the Florida Statutes and the deed(s) into the BOCC will
contain the specific deed restrictions shown in Attachment A.
>-
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida,~ ..
at a meeting of said Board held on the day of 2007. :5 ~
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BOARD OF COUNTY COMMISSIONERS :!
OF MONROE COUNTY, FLORIDA
Mayor Mario Di Gennaro
Mayor Pro Tern Dixie Spehar
Commissioner Charles "Sonny" McCoy
Commissioner Sylvia Murphy
Commissioner George Neugent
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
By:
Deputy Clerk
By:
Mayor/Chairman Mario Di Gennaro
ATTACHMENT A
AFFORDABILlTY COVENANTS
1. Term. These affordability covenants are perpetual, run with the land in favor of the Monroe
County Comprehensive Plan Land Authority, and are binding on all present and
subsequent owners and mortgagees.
2. Property Use. Use of the property shall be restricted to the provision of affordable housing
as defined in section 380.0666(3), Florida Statutes, as said statute may be amended from
time to time.
3. Monitoring. Grantee is responsible for ensuring compliance with the affordability covenants
contained herein and expressly agrees to furnish, upon Grantor's request, written
certification thereof.
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18. 2007 - KW Division: County Attorney
Bulk Item: Yes XX No Staff Contact Person: Susan M. Grimsley
AGENDA ITEM WORDING:
A. Approval to rescind Agreement for Sale and Purchase approved 7/19/06 and approval for the
Mayor to execute an Agreement for Sale and Purchase correcting the name of the Seller to reflect
Drive-In, Ltd (previously shown as Islander Village, LLC), with a leaseback to Islander Village,
LLC as the developer of the (89) affordable/employee housing units, and providing for an access
easement across County property for market rate housing units which should have been included in
the original Agreement effective 7/19/2006.
B. Approval to rescind the Lease approved 7/19/2006 and approval for the Mayor to execute a Lease
with Islander Village, LLC effective 4/18/2007.
C. Approval for the Mayor to execute the Grant of Easement attached to and made a part of the
Agreement for Sale and Purchase.
ITEM BACKGROUND:
On 7/19/2006, the BOCC approved the purchase of property located on Stock Island (the old Islander
Drive-In property) contingent upon execution of a 99-year lease for construction and development of an
affordable housing project. The Board also approved reservation of (89) affordable dwelling unit
allocations for the project. The actual owner of the property is Drive-In, Ltd. As development plans
progressed, it was discovered an access easement was required for the market rate housing over the
County owned property where the affordable housing units are located.
PREVIOUS RELEVANT BOCC ACTION:
3/15/2006 BOCC approved Ordinance No. 005-2006 Establishing PurchaselDevelopment or
Redevelopment of AffordablelEmpIoyee Housing Program
7/19/2006 BOCC approved Agreement for Sale and Purchase (with attached Addendum) with Islander
Village, LLC
7/19/2006 BOCC approved Lease
7/19/2006 BOCC approved Resolution No. 273-2006 reservation of(89) affordable dwelling unit
allocations for the Islander Village, LLC Project (along with 4 other affordable housing projects)
CONTRACT/AGREEMENT CHANGES:
Purchase and Sale Agreement - Corrects name of the Seller and includes access easement
Lease - correlates with incorporation of named Lessee
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/ A
COST TO COUNTY: N/A
REVENUE PRODUCING: Yes
BUDGETED: Yes
SOURCE OF FUNDS:
No xx AMOUNTPERMONTH_ Year
No
APPROVED BY: County Atty ~ OMB/Purchasing _ Risk Management _
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
Revised 2/05
AGENDA ITEM #
Project: ISLANDER VILLAGE
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this 19th day ofJuly, 2006, between DRIVE-IN, LTD. as "Seller" whose address is 201
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", c\o Thomas Willi,
County Administrator, 1100 Simonton Street, Room 2-205, Key West, Florida 33040.
1. In consideration 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:
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDIVISION, according
to the Plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of Monroe
County, Florida, and adjacent submerged lands, said parcel being more particularly described by
metes and bounds as follows:
Commencing at the W'ly Right-of-Way Line of Cross Street and the S'ly Right-of-Way Line of
Fifth Avenue and run thence West along the S'ly Right-of-Way Line of the said Fifth Avenue for a
distance of 450.00 feet to the Point of Beginning; thence continue West and along the S'Iy Right-
of-Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence nm South for a distance
of 79.47 feet; thence run S 3000'00" W for a distance of 88.04 feet to a curve, concave to the
Northeast and having for its elements a radius of 157.0 feet, and a delta of 43000'; thence run
SE'ly along the arc of said curve for a distance of 117.83 feet to the end of said curve; thence run
S 40"00'00" E for a distance of 183.23 feet to a curve, concave to the North and having for its
elements a radius of 92.0 feet and a delta of95000'; thence nm SE'ly and NE'ly along the arc of
said curve for a distance of 152.54 feet to the end of said cure; thence run N 45000'00" E for a
distance of 406.95 feet to a curve, concave to the Northwest and having for its elements a radius of
87.0 feet, and a delta of 11 049'24"; thence run NE'ly along the arc ofsaid curve for a distance of
17.95 feet; thence run East for a distance of 37.33 feet; thence run S 74058'15" E for a distance of
72.32 feet to a point that is due South of the Point of Beginning; thence run North for a distance of
139.88 feet back to S'ly Right-of-Way Line of the said Fifth Avenue and the Point of Beginning,
containing 4.69 acres more or less, subject to an easement for ingress and egress as described in
Exhibit A, attached.
Page 1
3. TOTAL PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the Property is Two
Million Twenty Four Thousand Seven Hundred Fifty Dollars and 00/100 ($2,024,750.00) 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 terminate 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
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 determine the existence and extent,
if any, of Hazardous Materials on the Property. For purposes of this Agreement, "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste of any kind or any other substance which is regulated by any
Environmental Law (as hereinafter defmed in paragraph 4.B.). The examination of hazardous materials contamination
shall be performed to the standard of practice of the ASTM. For Phase I enviromnental site assessment, such standard of
practice shall be the ASTM Practice E 1527. If the Findings and Conclusions section of the assessment reports evidence
of recognized environmental conditions, then a Phase II Environmental Site Assessment shall be performed at Seller's
expense to address any suspicions 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 Agreement, Seller shall, at his sole cost and expense 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 any 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 Hazardous
Materials ("Environmental Law"). However, should the estimated cost of clean up of Hazardous Materials exceed a swn
which is equal to 1% of the Total Purchase Price as stated in paragraph 3, Seller may elect to terminate this Agreement
and no party shall have 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 boundary 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 business 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 insurance 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 easements or claims of easements and (e) unrecorded mechanics' liens.
Page 2
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 the title defects, Purchaser shall have the option to either: (a) accept the title as it then is with a reduction
in the Total Purchase Price by an amount agreed. 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 obligations under this Agreement.
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 encwnbrances in the opinion
of Purchaser and do not impair the marketability of the title to the Property, and except for a non-exclusive easement for
ingress and egress reserved by Seller over the property described in Exhibit A. A copy of the Easement Agreement is
attached hereto as Exhibit B.
9. PREPARATION OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller shall submit to
Purchaser a properly 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 instruments 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 Property shall be satisfied of record by Seller at or before closing. In the event Purchaser acquires fee title to
the Property between January 1 and November 1, Seller shall, in accordance with Section 196.295, Florida Statutes,
place in escrow with 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 notice that it has received all required permits, approvals and ROGO allocations to build the improvements
necessary to fulfill 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
Page 3
documentation curing the defects, whichever is later. The exact date, time and place of closing and closing agent shall 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 AND CONDITION OF REAL PROPERTY. Seller asswnes all risk ofloss 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. However, in the event the condition of the Property is altered by an act of God or other natural force beyond
the control of Seller, Purchaser may elect, at its sole option, to tenninate this Agreement and neither party shall have any
further obligations Wlder 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 listing 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
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 Wlder 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 permitted by law or in equity resulting from the other's
default. In connection 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
tenninate this Agreement, in its sole and absolute discretion and, in such case, shall refund to Purchaser all purchase
monies 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 Wldisclosed.
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. ASSIGNMENT. This Agreement may not be assigned by either Party without the prior written consent of the
other Party.
21. 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 Wlenforceable, the
enforceability of the remaining provisions of this Agreement shall not be affected.
Page 4
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 Islander Village, LLC, as approved by Purchaser, such
agreements containing the entire agreement between the parties pertaining 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.
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 relinquislunent for the future
of any such covenant, condition or right; but the same shall remain in full force and effect.
26. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or alteration thereto, shall not
be effective or binding upon any of the parties hereto until it has been executed by all of the parties hereto, and fmally
approved pursuant to any legal or regulatory requirements. Once executed, the effective date is retroactive to July 19,
2006.
27. ADDENDUM. Any addendum attached hereto that is signed by the parties shall be deemed a part 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, and either delivered personally or mailed to the appropriate address indicated on the frrst page of this Agreement,
or such other address as is designated in writing by a party to this Agreement.
29 . SURVIVAL. The covenants, warranties, representations, indemnities and undertakings of Seller set forth in this
Agreement shall survive the closing, the delivery and recording of the deed described in paragraph 8. of this Agreement
and Local Government's title to or possession of the Property.
30. CONTINGENCIES. In addition to the permit and ROGO allocation contingency set forth above in Paragraph
17, the closing of this transaction 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.
31, EFFECTIVE DATE. The effective date of this Agreement will be retroactive to July 19,2006.
TIDS IS TO BE A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF
AN ATTORNEY PRIOR TO SIGNING.
Page 5
RE Nos.:
AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE
~~
I SS
6e r)E ,'- ,
J
Print Name!ritle
STATE OF Florida )
COUNTY OF Monroe)
The fore$oing instrument was acknowledged before me this J / ~ day of lip ,.e...~ ( , 2007,
by th()l/,J (). ~ I "ff,JJ!. He,is ~lly knoW!..to me or produced as identification.
h~~~
NO!rJ~(j',v JAyL ~
(Printed, Typed or Stamped Name of Notary Public)
Commission No.:
My Commission Expires:
(SEAL)
ol'~"':ttt,~ Marion Hope Casas
{~. ..~ Commission # 00325062
~... Expires July 21,2008
,Wo , BoodId T~"'. _, I/lo. IOOoIlllo7Oll
(SEAL)
PURCHASER
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Attest: DANNY L. KOLHAGE, CLERK
By:
By:
Deputy Clerk
Mayor Mario DiGennaro
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
lL& -uJ~~~ C~~
SUSAN M. G~SLEY
ASSISTANT COUNTY ATTORNEY
Date if ('~/- (/7
Page 6
ADDENDUM
(IMPROVEMENTS /PURCHASER)
A. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing may be obtained fram your
county public health unit. This notice is being provided in accordance with Section 404.056(8),
Florida Statutes. 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 properly certified by the Florida Department of Health and Rehabilitative Services.
If radon gas or radon progeny is discovered, Purchaser shall have the option to either: (a)
accept the Property as it then is with no reduction in the Purchase Price or (b) teDminate this
Agreement, thereupon releasing Purchaser and Seller from all further obligations under this
Agreement.
B. Wood Destroyin~ Organisms Inspection Report. Purchaser may, at its sole cost and expense,
obtain a Wood DestroY1ng Organisms Inspection 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, Purchaser 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 Improvements. Seller shall, if required by Purchaser, maintain the roofs,
doors, floors, steps, w1ndows, 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 Price or (b) terminate
this Agreement, thereupon releasing Purchaser and Seller fram all further obligations under this
Agreement.
SELLER - DRIVE-IN, LID.
PURCHASER
BOARD OF COUNTY ~SSIONERS OF
KmROE COUNTY, FLORIDA
B~ ~~~
-\ /-. ~ -('+ / ~~
.t:-C!w.'v\ v, 0'.....)..+ JIL bc"e"rc,\ 'R..(+vte-~
Print Name/Title J
Mayor Mario DiGennaro
'-I / 1\ ~ 0 '7
Date signe by Seller
Page 7
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EXHIBIT A - Page 1 of 2 Pages
EXHmIT "A" TO
AGREEMENT FOR PURCHASE AND SALE
BETWEEN MONROE COUNTY, FLORIDA,
AND DRIVE-IN, LTD.
"Easement Property"
PROPOSED EASEMENT FOR ROADWAY AND UTILI11ES:
A parcel of land on Stock Island, being 8 part of
Block 59, MALONEY SUBDIVISION, according to the plat
thereof, as recorded in Plat Book 1, at Page 55, of
the Public Records of Monroe County, Florida, and
adjacent submerged lands, said parcel being more
particularly described by metes and bounds as
follows:
Commencing at the W'ly Right-of- Way Line of Cross
Street and the S'ly Right-of- Way Line of Fifth Avenue,
and run West along the S'Jy Right-of- Way Line of
said Fifth Avenue for a distance of 510.00 feet to the
Point of Beginning; thence continue West along the
Sly Right-of- Way Line of the said Fifth Avenue for a
distance of 47.18 feet; thence run South and at right
angles for a distance of 121.13 feet; thence run East
and at right angles for a distance of 37.33 feet to a
point on a curve, concave to the Northwest and
having for its elements a radius of 120.0 feet, a delta
of 2,1"22'28': and a chord bearing of N 11 "41 '14" E;
thence run NE'Iy along arc of said curve for a
distliDce of 48.96 feet to the end of said curve;
thence run North for a distance of 73.52 feet back to
the S'iy Right-of- Way Line of the said Fifth Aven ue
and the Pain t of Beginning.
BOUNDARY SURVEY FOR: Board of County Commissioner
Monroe County, Florida;
Islander Village, LLC;
SunTrust Bank of Miami;
C'.hicaga Title Insurance Campa
Spattswood, Spottswood a.nd S)
nn -.07Flynn-;-jiSij----------
da Reg. #6298
February 25, 2007
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EXHIBIT
j A -,.
Prepared by and Return to:
Spottswood, Spotts wood & Spottswood
500 Fleming Street
Key West, Florida 33040
GRANT OF EASEMENT
THIS GRANT OF EASEMENT is entered into this day of
, 2007 (herein "Agreement") by and between MONROE
COUNTY, a political subdivision of the State of Florida, its successors and assigns, whose
address is 1100 Simonton Street, Key West, Florida 33040, (herein "Monroe County") and
ISLANDER VILLAGE, LLC, a Florida limited liability company, its successors and assigns,
whose address is 201 Front Street, Suite , Key West, Florida 33040 (herein "Islander
Village"), Monroe County and Islander Village shall be collectively referred to herein as
"Grantor", and DRIVE-IN, LTD., a Florida limited partnership, its successors and assigns,
whose address is 201 Front Street, Suite , Key West, Florida 33040 (herein "Drive-In" or
"Grantee").
RECITALS
WHEREAS Monroe County, simultaneously with the execution of this Agreement, has
purchased property from Drive-In and is now the owner of said real property located in Monroe
County, Florida, which property is described on Exhibit "A" attached hereto and made a part
hereof (herein "Affordable Property"); and
WHEREAS Drive-In remains the owner of certain real property located in Monroe County,
Florida, which property is described on Exhibit "B" attached hereto and made a part hereof
(herein "Market Rate Property"), which will be developed into twenty-two (22) market rates
units and subsequently sold to individual unit owners; and
WHEREAS, simultaneously with the execution of this Agreement, Islander Village and Monroe
County entered into a ninety-nine (99) year ground lease (hereinafter "Lease") pursuant to which
Islander Village has leased the Affordable Property from Monroe County for the development
and subsequent sale of eighty-nine (89) affordable units to individual unit owners; and,
WHEREAS, the parties are desirous of entering into this Agreement to provide Drive-In with a
non-exclusive perpetual easement over a portion of the Affordable Property for among other
things, the construction and maintenance of a roadway, over and across the property more
particularly described in the attached Exhibit "c" (hereinafter "Easement Property"), together
with a perpetual easement for ingress, egress and passage (both pedestrian and vehicular) over
said Easement Property and the roadway constructed thereon in order to facilitate access to the
Market Rate Property; and,
WHEREAS the parties are also desirous of entering into this Agreement to provide Drive-In
with a perpetual non-exclusive easement for access to and use of the sewer lift station located
within the Easement Property; and,
EXHIBIT
I~
1
WHEREAS, the parties are also desirous of entering into this Agreement to provide Drive-In
with a perpetual non-exclusive easement in, over, across and under the Easement Property for the
installation, repair, maintenance and use of underground utilities; and,
WHEREAS, the parties have agreed, under the terms and conditions set forth herein, to grant to
Drive-In the right to use the Easement Property for the purposes set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and obligations contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The above Recitals are true and correct and are hereby incorporated herein by reference.
2. Each Party hereto warrants that this grant of easement, and all terms and conditions
contained herein, are supported by adequate consideration.
3. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over and across the
Easement Property, more particularly shown on the attached Exhibit "C" in order to facilitate
access (both vehicular and pedestrian) to and from the Market Rate Property (including access to
construct the twenty-two (22) market rate units). All persons having the right to enter upon the
Market Rate Property shall have the right to utilize the Easement Property for ingress and egress
purposes (both vehicular and pedestrian), including but not limited to Drive-In's guests,
contractors, agents and invitees and the guests, contractors, agents and invitees of the Drive-In's
successors and assigns (the individual unit owners of the units located on the Market Rate
Property).
4. Drive-In, at Drive-In's sole cost and expense, shall be responsible for the repair and
maintenance of the roadway and landscaping within the Easement Property; provided, however,
that the access to and from the Affordable Property shall not be unreasonably impaired or
otherwise impeded in any manner. Drive-In agrees to provide Islander Village with reasonable
notice prior to commencing any repair or maintenance that may interfere or impair the access to
the Affordable Property.
5. Grantor and Grantee shall not construct or place any structures on or make changes,
alterations or improvements to the Easement Property or do anything inconsistent with the use of
the Easement Property by the parties hereto without the prior written consent of the other parties.
6. Grantee agrees to secure and pay the premium for liability insurance with respect to the
maintenance, repair and use of the Easement Property in an amount of not less than
$1,000,000.00 from an insurer of recognized financial responsibility qualified to do business in
Florida which is reasonably acceptable to Grantor. Grantor shall be named as an additional
insured. The foregoing amount of insurance must be increased by Grantee as may from time to
time be reasonably required by the Grantor. In the event Grantee believes the Grantor's
requirement for such additional insurance is unreasonable, the reasonableness of Grantor's
2
demand for an increase in the amount of insurance hereunder shall be determined in accordance
with the rules of the American Arbitration Association. Such determination made in arbitration
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 Paragraph.
7. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, over, under and across the
Easement Property, more particularly shown on the attached Exhibit "C" in order to allow Drive-
In, and its successors and assigns, access to and use of the sewage lift station located within the
Easement Property. Drive-In shall be responsible for sixty-seven percent (67%) and Islander
Village shall be responsible for thirty-three (33%) of the repair, maintenance and replacement (if
necessary) of the sewer lift station located within the Easement Property. Drive-In, at Drive-
In's sole cost and expense, shall maintain their sewer pipes which benefit the Market Rate
Property in good repair and shall have the right of ingress and egress to install, maintain, repair
and, if necessary, replace, their sewer lines which are located within the Easement Property. The
foregoing right shall include the right to dig up those portions of the Easement Property as
necessary to repair or replace Drive-In's sewer lines; and, in such an event, Drive-In shall
provide Islander Village with reasonable notice. Islander Village shall in no way interfere with
Drive-In's use of said sewer lines. Drive-In and Islander Village hereby agree that the decisions
related to the repair and maintenance of sewage lift station shall be governed by a Master
Association, to be formed to govern the Affordable Property and the Market Rate Property.
8. Grantor hereby grants, conveys, declares and creates for the benefit of Drive-In, its
successors and assigns, a perpetual, non-exclusive easement, in, upon, under and across the
Easement Property for installation, maintenance and repair of underground utilities to service
and benefit the Market Rate Property, including but not limited to water and underground
electric lines. Drive-In, at Drive-In's sole cost and expense, shall maintain the utilities which
benefit the Market Rate Property and are located within the Easement Property in good repair
and shall have the right of ingress and egress to maintain, repair and, if necessary, replace, said
utility lines. The foregoing right shall include the right to dig up those portions of the Easement
Property as necessary to repair or replace Drive-In's utility lines; and, in such an event, Drive-In
shall provide Islander Village with reasonable notice. Islander Village shall in no way interfere
with Drive-In's use of said utility lines.
8. Drive-In shall indemnify, protect, defend and hold Monroe County and Islander Village
harmless from any and all liability, loss, damage, cost or expense (including but not limited to
attorneys' fees and court costs at the trial level and during appellate proceedings) which Monroe
County or Islander Village should incur as a result of or in connection with Drive-In, or Drive-
In's agents', contractors', successors' and assigns', use, repair and maintenance of the Easement
Property.
9. Islander Village shall indemnify, protect, defend and hold Monroe County and Drive-In
harmless from any and all liability, loss, damage, cost or expense (including but not limited to
attorneys' fees and court costs at the trial level and during appellate proceedings) which Monroe
County or Drive-In should incur as a result of or in connection with Islander Village's, or
Islander Village's agents', contractors', successors' and assigns', use of the Easement Property,
3
unless caused by Drive-In's failure to maintain or repaIr the roadway located within the
Easement Property.
10. Drive-In hereby acknowledges that Islander Village, its successors, assigns, invitees, and
contractors retain the right to use the Easement Property for access to the Affordable Property.
Additionally, Islander Village, its successors and assigns retain the right to use the sewage lift
station, as well as sewer lines servicing the Affordable Property. Notwithstanding anything
contained herein to the contrary, Islander Village's rights to use the Easement Property are
subject to the terms and conditions set forth in the Lease. Monroe County hereby acknowledges
that the grant of the easements set forth herein for the benefit of Drive-In shall survive
termination of the Lease with Islander Village. Therefore, the terms of this Agreement shall run
with and be appurtenant to the Market Rate Property. Therefore, this easement shall run with
the land forever and be binding upon and inure to the benefit of and be enforceable by the parties
hereto, their heirs, legal representatives, successors and assigns, including but not limited to the
homeowners' associations of the owners of the developments located on the Market Rate
Property and Affordable Property.
11. When a transfer of the entire ownership interest in the Affordable Property and Market
Rate Property takes place, the transferor shall be released from any and all further liability
arising hereunder after such transfer occurs; therefore, the liability under this Agreement arising
after said transfer shall automatically terminate as to the transferor and shall be automatically
assumed by and become the obligation of the transferee.
12 This Agreement may not be terminated or amended, modified, altered, or changed
in any respect whatsoever, except by a further agreement in writing duly executed by the parties
(or their successors or assigns) and recorded in Public Records of Monroe County, Florida. No
breach of the provisions of this Agreement shall entitle any party to cancel, rescind or otherwise
terminate this Agreement, but such limitation shall not affect, in any manner, any other rights or
remedies which any party may have by reason of any breach of the provisions of this Agreement.
13. This Agreement may be executed in counterparts, each of which shall constitute an
original, but all taken together shall constitute one and the same Agreement.
14. Nothing contained in this Access Agreement shall create or shall be deemed to create any
easements or use rights in the general public or constitute a public dedication for any public use
whatsoever.
15. In the event of any controversy, claim, or dispute relating to this instrument or the breach
of it, the prevailing party shall be entitled to recover reasonable expenses, attorneys' fees, and
costs.
16. If any provision of this Agreement, or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement
shall be severable and valid and enforceable to the fullest extent permitted by law.
4
17. All notices, consents, approvals or other communications hereunder shall be in writing and
shall be deemed properly given if sent by United States certified mail, return receipt requested,
addressed to the appropriate party or successor-in-interest.
18. This Agreement shall be construed in accordance with the laws of the State of Florida.
All parties acknowledge and agree that in the event of any dispute arising under this Agreement,
the sole jurisdiction for such dispute shall be in Monroe County, Florida.
19. For the purposes of interpreting any ambiguity arising under this Agreement, no party
shall be considered the "drafter" of same.
20. Each party to this Agreement agrees to waive a jury trial on any dispute arising under this
Agreement and each party agrees to have any dispute heard by the court without ajury.
21. The undersigned hereby represent and warrant that all action, approvals and consents
necessary for the execution of this Agreement have been taken or obtained, and the persons
executing this Agreement are authorized and directed to execute this Agreement on behalf of
Drive-In, Ltd., Islander Village, LLC and Monroe County.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
(SIGNATURE PAGES TO FOLLOW)
5
SIGNATURE PAGE 1 OF 2
IN WITNESS WHEREOF, the parties have executed this Agreement this _ day of
,2007.
DRIVE-IN, LTD., a Florida limited partnership
Witnesses:
Print Name:
By:
Printed Name:
ITS:
Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
On this _ day of , 2007 before me personally appeared
, as of Drive-In, Ltd. who is personally
known to me, and who acknowledged execution of the foregoing instrument.
My Commission Expires: (Seal)
Notary Public
Print Name:
Witnesses:
ISLANDER VILLAGE, LLC
Print Name:
By::
Printed Name:
ITS:
Print Name:
STATE OF FLORIDA
COUNTY OF MONROE
On this _ day of , 2007 before me personally appeared
, as of Islander Village, LLC, who is
personally known to me, and who acknowledged execution of the foregoing instrument.
My Commission Expires: (Seal)
Notary Public
Print Name:
6
(Seal)
SIGNATURE PAGE 2 OF 2
ATTEST: DANNY L, KOLHAGE, Clerk
By:
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Mayor Mario DiGennaro
MONROE COUNTY ATTORNEY
APPROVED ~S TO FORM'
. C'"
SUSAN M. GRrMS Y
ASSIST~TY A ORNEY
Dale lOt .lc(, 7
7
EXHffiIT "A" TO GRANT OF EASEMENT
BETWEEN MONROE COUNTY, FLORIDA,
ISLANDER Vll.-LAGE, LLC AND DRIVE-IN, LTD.
"Affordable Property"
LEGAL DESCRIPTION
A pan:01.of Iaod OIl StIK:k Jslaod,. being a part of Bb:k S9. MAWNEY SUBDMSION,
a&lClOIdIn81o the Plat tbenot: ISlIll.lw.bd in Plat Book 1, at Pap 5S, of1llePubUc beClIda of
Mcmroe County, FklIida. and Idjtccnt mbmapd.laDds, said pan;el being more pIl1icoIarly
dlIIQribed by IDIIkS 8Dd bauada u fbIlowa:
CooIIDClIId1Is It the Wily RigbHJf~WII)' LiDo afen. stnletaDd b 8'11 RigbkJf-Way Lioe of
Pifth Aveaue _ rao1bace w. aloa&1be SOb' Ri~W~ LiDe oftbt; Aid Pifth Avenue
fora ditf8acc or 4SO.00flllltto1he PoInt ~ftfti.. tIIehac Gldioue WtlItlllld a1cmg1ho S'Ir
IUabt-of-Wa,yLlne of1be IlIidPlftb AWlllDlfbr. dIstaoceof691.4S fool; 1heooenmSoldh for
a diIamclc of 79.41 feet; IbIiIa run 8 3000'00" W fbI' a diIIanl:le of 88.04 ,. to . curve.
oanDa't'O to 810 Ncnthaest mcI havJna b ill ellllDlll1ll . mdlus of157.0 feet. and . delta of
43W'; 1lHIJce lUll SE'ly lIIoD& tho IR af'1IIid caw f1lra tIItalJao ofl] 7.83 feetto tho end of
said curve; ......lUn S 40'00'00" B fOr. diIIaDac of I&!.23 filei to a curve, iXlIICIM to tho
North aoclllnins bits elemeatI a fJIlib 01'92.0 fe8t.... a delta of9S000'; tbenoo run SE1y
and NE'ty eIons tho lR of 8Iid ~ fOr a cIatInce of] 52.54 :ft:et 10 the end of said cure;
tbmJco 1\111 N 45"00'00" B for. diateoGo rl406.9S feat1D . cum; CODCa'te to the Ncdhwost
IOCllMrtiDc fer ita clcma1II uadius otB1.0 _ and 8 delta-of 11"49'24..; tIMince run NE'ly
aloog the S'C of _ 0UMl ibr. &lance of 17.9S feel(; thIaco nm Ball tbr . dlnmce af'37 33
teet; 1beaoe run S 14"58'15" I! 1Or. cJ.isCmgo of 72.32 feet to a poiDt 1bat 18 duo South ofb
PointofBegimdns; 1hencenm North lOt a6tanccof't39.88 fectb8llk to S"ly RI~WII)'
Une oftbel8id Ftftb A venDI and the Point ofBoJianiDe, con.taiD&Jg 4.69 1D'IlS1JION or Ie...
EXHIBIT
I A
EXHmIT "B" TO GRANT OF EASEMENT
BETWEEN MONROE COUNTY, FLORIDA,
ISLANDER Vll-LAGE, LLC AND DRIVE-IN, LTD.
"Market Rate Property"
LEGAL DESCRIPTION
Lots 1 thru 6. induaive. and the West one-half of Lot 7. Block 59, MALONEY SUBDNlSION
of Stock Island, Monroe County, Florida, as recorded in Plat Book 1 at Page 55 of the Public
Records of Monroe County. Florida
ALSO
A parcel of bay bottom land in the Straits of Florida being described by metes and bounds as
follows: Commence at the intersection of the South Jine of Fifth St. and the West line of Cross
St. according to said MALONEY SUBDIVISION and run thence West along the South line of
said Fifth St. and the South line of Fifth St. exten~ a distance of 1150 ft. to the Point of
BegjnJli"g; thence continue west for a distance of 350 ft. to the East edge of Cow Key Channel;
thence run S 060 00' W along the East edge of tbe said Cow Key Channel a distance of 700 ft.
more or leas; thence run S 400 00' E along the East edge of the said Cow Key Channel a distance
of 312.08 ft. more or less, to the North boundary of the parcel of land described in Official
Record Book 386 at Page ISO of the Public Records of Monroe County, Florida; thence nul East
along the North boundary of the said parcel of land a distance of 918.58 ft. to the intersection of
the centerline of Lot 7, Diode 59 of the said MALONEY SUBDIVISION extended southerly;
thence run North along the centerline of the said Lot 7 extended, a distance of 650 ft. more or
less, to tbe South boundary of the said Block 59; thence Soutbeast:erly and Northeasterly
meandering the South and West booodary of the said Block 59, a distance of1400 ft. back to the
Point of Beginning.
LESS AND EXCEPT:
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDIVISION,
according to the Plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of
Momoe County, Florida, and adjacent submerged ~ said parcel being more particularly
described by metes and bOlDlds as fonows:
Commencing at the W'ly Right-of-Way Line of Cross Street and the S'ty Right-of-Way Line of
Fifth Avenue and run thence West along the S'Iy Right-of-Way Line of the said Fifth Avenue for
a dislance of 450.00 feet to the Point of Beginning; thence continue West and along the S'ly
Right-of-Way Line ofllie said Fifth Avenue for a distance of 691.4S feet; thence run South for a
distance of 79.47 feet; thence 11111 S 3000'00" W mr a distance of 88.04 feet to a curve. concave
to the Northeast and having for its elements a radius of 151.0 fee~ and a delta of 43000'; thence
run SE'ly along the arc of said curve for a distance of 117.83 feet to the end of said curve; thence
run S 40000'00" E for a distance of 183.23 feet to a curve, concave to the North and having for
its elements a radius of 92.0 feet and a deba of 95000.; thence J1D1 SE'ly and NE'tyalong the an;
of said curve for a distance of 152.54 feet to the end of said curve; thence run N 45000'00" E for
a distance of 406.95 feet to a curve, COtWave to the Northwest and having for its elements a
radius of 87.0 feet, and a delta of 11049'24"; thence run NE'ly along the arc of said curve for a
distance of17.9S feet; thence run Bast fur a distance of37.33 feet; thence run S 74058'15" E for
a distance of 72.32 feet to a point that is due South of the Point of Beginning; thence run North
for a distance of139.88 feet back to the S'ly Right-of-Way Line of the !laid Fifth Avenue and the
Point of Beginning.
I
EXHIBIT
B
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"-.I
EXHmIT "C" TO GRANT OF EASEMENT
BETWEEN MONROE COUNTY, FLORIDA,
ISLANDER VILLAGE, LLC AND DRIVE-IN, LTD.
"Easement Property"
PROPOSED EASEMENT FOR ROADWAY AND UTIliTIES:
A parcel of land on stock Island, being a part 0/
Block 59, MALONEY SUBDIVISION, according to the plat
thereof, as recorded in Plat Book 1, at Page 55, of
the Public Records 0/ Monroe County, Florida., and
adjacent submerged lands, said. parcel being more
particularly described by metes and bounds as
follows:
Commencing at the W'ly Right-of- Way Line 0/ Cross
Street and the S'ly Right-of- Way line of Fifth Avenue,
and run West along the S'Jy Righl-ol-Way Line' of
.~aid Fifth A ven ue for a distance 0/ 510.00 feet to the
Point of Beginning; thence continue West along the
51y Right-ai-Way Line of the said Fifth. Avenue for 8.
distance of 47.18 feet; thence run South and at right
angles for a distance of 121.13 feet; thence run -East
and at right angles for a distance of 37.33 feet to a
pomt on a curve, concave to the Northwest and
having for its elements a radius of 120.0 feet, 8 delta
of 23"22'28': and a chord bearing of N 11"41 '14" E;
thence' run NE'Iy along' arc of' said. curve" for a .
distance of 48.96 feet to the end of said curve;
LherlCe run North for a distance of 73.52 feet back to
the S'1y Right-of.,-Way Line of the said Fifth Avenue'
and the Point of Beginning.
BOUNDARY SURVEY FOR: Board of Go un ty Commissioner
Monroe County, Florida;
Islander Village, LLC;
SunTrust Bank of Miami:
Chicago Title Insurance Campa
Spottswood, spottswood and 8)
nO 'Flyi}n-.-Psii----------
da Reg. #6298'
February 25, 2007
EXHIBIT
j ~
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
ISLANDER VILLAGE, LLC
"LESSEE"
DATED April 18, 2007
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 52
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Key West, Monroe County, Florida, on this
18th day of April, 2007, by and between MONROE COUNTY (referred to as the "Lessor")
and ISLANDER VILLAGE, LLC (referred to as the "Lessee").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at Stock Island,
Monroe County, Florida, and more particularly described on the attached Exhibit "A"
(hereinafter "Property"); and,
WHEREAS, it is 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 eighty-nine
(89) affordable housing units (provided allowed by County regulations and hereinafter the
"Affordable Housing Units"), and Initial Lessee may rent/lease 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 Land
Development Regulations in effect at the time of execution of this Lease where the effect
Page 3 of 52
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 alienability of 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 afford ability 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 Occupancy 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.
"Initial Lessee" means ISLANDER VILLAGE, LLC, developer of the Affordable
Housing Units.
"Lease" shall mean this lease for the creation of the Affordable Housing Units on the
Page 4 of 52
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 the Term 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 set forth 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,
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
Page 5 of 52
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" may in 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 in, 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 hereinafter set forth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial Lessee 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 the Initial Lessee and the Initial Lessee hereby leases from the Lessor, the
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:
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(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
Section ~.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 terms 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
Section 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
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 form 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.
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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 (10%) 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
Non-Subordination
Section Fi.01 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 of its 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.
Page 8 of 52
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
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,
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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 (1112) 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 6.01:} 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
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
Page 10 of 52
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 shall 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 portiones) 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
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, or in 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.
Page 11 of 52
Section 7.01 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
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.
Page 12 of 52
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.
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, injury 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, injury 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.
Page 13 of 52
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.03 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 a joint account of the Lessor and the Lessee in a bank designated
by the Lessee and located in the County in which the Demised 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
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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 1s-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.
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.
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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 10.01 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 requirement for such additional insurance 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.
Section 1O.0Ci 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
Page 16 of 52
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 of the 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 (ii) such policy of insurance
shall not be changed or cancelled without at least thirty (30) days written notice to the
Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or subject to
any assessments thereunder.
Section 10.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
Page 17 of 52
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 immediately 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
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee. Without the written consent of Lessor,
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
Page 18 of 52
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 of its 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 that it 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 ofInitial
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
Page 19 of 52
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.
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 developers/builders 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
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 contrary, 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 12.0~ 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.
Page 20 of 52
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:
NOTICE OF RESTRICfIONS
ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT
OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECfED
THEREON WILL BE SUBJECf TO CERTAIN RESTRICfIONS 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
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.
Page 21 of 52
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 if it 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-
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 of full 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
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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
proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. After 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 similar to those set forth in
Page 23 of 52
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 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 STATlITES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'S
PERSONAL PROPERTY.
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
Page 24 of 52
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 1/2
%) of the Purchase Price (gross compensation however described) for any transferred
interest (other than simple security mortgage interests or rental agreements) in which
Lessor identified 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 (11/2 %) 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 (3 l/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 11.01 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
Page 25 of 52
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 11.02 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
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
Section 14.01 Requirement to Construct Project.
(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 eighty-nine
(89) Affordable Housing Units within eighteen (18) months thereafter. The foregoing
limitation of time for the 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
Page 26 of 52
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
performance 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
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.
(t) 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
Page 27 of 52
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 Project 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
permit building and code inspectors access customary to the performance of their duties
related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
14.0~ Forced Delay in Performance. Notwithstanding any other provisions of this
Lease to the contrary, the Initial Lessee shall not be deemed to be in default under this
Lease where delay in the construction or performance of the obligations imposed by this
Lease are caused 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 performance 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 1C:;.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 Demised 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.
Page 28 of 52
(b) Until the time any leasehold mortgagees) 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.
(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 of this Lease (e.g., including, but not limited to, taxes or assessments), the
leasehold mortgagee(s) shall have thirty (30) 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 ofthis Section 15.01(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 (30) 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.
Page 29 of 52
Any new Lease referred to in this Section 15.01(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
upon receipt by the Lessor such new Lease, as provided in this Section 15.01(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(0 below.
(0 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 otInitial 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 otInitial
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.
Page 30 of 52
(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
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 interest in 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 of the Initial Lessee's interest in 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).
Q) 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 Q) 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).
Page 31 of 52
(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).
(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 1c;.02 Permitted Mortgages for Sublessees (Unit Owners). The individual
Affordable Housing Unit OwnersfSublessees 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) For informational 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 andf 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;
Page 32 of 52
(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
Mfordable 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
(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 Demised 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
Section 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.
Page 33 of 52
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 Demised
Premises 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 circumstances,
shall constitute effective, full and immediate conveyance and assignment to Lessor of all of
the Demised Premises, improvements, 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 portions 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 of in 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, at its
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-Iet 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.
Page 34 of 52
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-letting
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-letting 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-letting (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-letting.
Notwithstanding any such re-letting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach. Should Lessor at any time
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~ Lessor's Right to Perform. In the event that Lessee, by failing or
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 16.0Fi. 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
Page 35 of 52
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 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.
Page 36 of 52
Section 18.0~ Recovery of Litigation Expense. 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.
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 18.05 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 of insurance undernTiters.
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 Actandjor the Resource Conservation and Recovery Act.
Page 37 of 52
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
Representations. Warranties of Title and Ouiet Enjoyment
and No Unlawful or Immoral Purpose or Use
Section 1Q.01 Representations. Warranties of Title and Ouiet Enjovment. 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 Purpose 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
Page 38 of 52
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, discharge 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.
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.
Page 39 of 52
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
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 at its own expense, any and all claims for a brokerage commission by either of them
with any brokers.
Section 20.11 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
Page 40 of 52
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 20.1!; 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.
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, 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
Page 41 of 52
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 indemnify
Lessor for damages or claims related thereto and releases Lessor from same.
Section 20.10 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 any way 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.
Section 20.20 Government Purpose. 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 Supplemental 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 forums 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.
Page 42 of 52
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 contemplated, 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
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 20.2~ 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.
Page 43 of 52
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written.
ATTEST: DANNYL.KOLHAGE,CLERK
LESSOR:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
By:
Deputy Clerk
Mayor Mario DiGennaro
MONROE COUNTY ATTORNEY
.tP~:~ TO FORM:,
~ ~'- SUSAN M. GR~~Y~~
ASSISTANT COUNTY ATTORNEY
Date q-/t'J. 07
LESSEE:
ISLANDER VILLAGE, LLC
~ ~~
Edwin O. Swift, III~ :anager "
MlAA1 D--Z-
Page 44 of 52
EXHIBIT "A"
LEGAL DESCRIPTION
A parceI.of land on Stock. ~ beina a p8l't of Block S9. MALONEY SUBDIVISION,
lM:ClOI'din& to 1be Plat 1heroof. as reconIed in Plat Book 1. at PlIO 55. of tho PubUo R.ecordl of
Moaroe County. PIorida, and MUaceat 8Ubmerpllandl. uid pen:oI beiDa more partlcularly
deIoribecl by meta md bowdIas follows:
Commenoinl at1he Wily R.igbt4-Way Line oICro11 StNetIlDd tile S'Jy ~-W~ LiDo of
ytfth Avenue 8Dd nm tbmce Welt along tho S'ly ~Way LIne oftbe said Fifth AveDue
forad.iltaoce of4SO.00 &at lob Pointof~ftfting; tbenae contiaue Weltand aloagtbe S'Jy
RiJb:t-of-Way Une of1beuldFifthAwoue tbr a dimulceof691.4S Ibclt; 1bonoe nm SouIb b'
a dilCanGC of 79.41 feet; thence nm S 3"00'00" W fbr a diItIaCe of 18.04 feet to a curve.
00IlC&V0 to 1110 NortbrIaIt IDd having fer i1s elm1eatl a ddius of 157.0 feet. aDd a delta of
43"00'; thence nm SB'ly aIooa the E'C ofl&id curw: ibr a cD81anoo of 117.83 feet to the fDi of
IBid curve; tbeoce nm S 4CfOO'OO" E for a diabuu:le of 1&3.23 feet to a oune. 00I:IClI9D 10 tIIIl
North and having fur itI eIementa a r&d_ of92.0 .. ad a delta of9SCOO"; thence run SB'Jy
and NE"ly alona tho an: of I8id ~ for a cIittaI1ce of 152.54 &ot to the end of laid. auro;
tbaoce run N 4SCOO'OO" E 1br a diltaDoc of 406.95 feet to a cww. coaoaw to the NortbWCllt
IIld haYiD& for ita e1emt1d1 . "'111 of 17.0 feet, 8Dd a cleba:of 11-49'24"; abenae run NE'Iy
along the _ of IlIid curve tbr. dIItInoe of 17.9' feet; d1ence run BaIt tbr a diIIuce of37.33
feet; 1henDe nm S 74058'1S" E for' a di8C8ncc of 72.32 &otto a poiDt1batil clue SouIb of1he
Point ofBolfnnlna; thence run North b a diatance of 139.18 filet beck to s'ay RJgbt-of-Way
Une of1be I8id FiftbAwnuc IIld the Point ofBegJnnir'lf, oontaiaina4.69 8CI'eI DlOftl or leu.
Page 45 of 52
EXHIBIT "B"
DEPICTION OF PROJECT LAYOUT
1
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":TO Ll.
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Page 46 of 52
EXHIBIT "C"
COMMENCEMENT DATE AGREEMENT
This Agreement is 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 Expiration 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.
(Seal)
ATTEST: DANNY L, KOLHAGE, CLERK
LESSOR:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
By:
Deputy Clerk
Mayor Mario DiGennaro
Witnesses: As to Lessee
LESSEE:
ISLANDER VILLAGE, LLC.
Print Name:
Print Name/Title:
Print Name:
Page 47 of 52
EXHIBIT "D"
Term Portion Due Date Rent Term Portion Due Date ~
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 2061 $10.00
Lease Year 7 Aug 1 2012 $10.00 Lease Year 57 Aug 1 2062 $10.00
Lease Year 8 Aug 12013 $10.00 Lease Year 58 Aug 1 2063 $10.00
Lease Year 9 Aug 1 2014 $10.00 Lease Year 59 Aug 1 2064 $10.00
Lease Year 10 Aug 1 2015 $10.00 Lease Year 60 Aug 1 2065 $10.00
Lease Year 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 2067 $10.00
Lease Year 13 Aug 1 2018 $10.00 Lease Year 63 Aug 1 2068 $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 Year 65 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 Year 69 Aug 1 2074 $10.00
Lease Year 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 2076 $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 Year 28 Aug 1 2033 $10.00 Lease Year 78 Aug 1 2083 $10.00
Lease Year 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 2036 $10.00 Lease Year 81 Aug 1 2086 $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 Lease Year 90 Aug 1 2095 $10.00
Lease Year 41 Aug 1 2046 $10.00 Lease Year 91 Aug 1 2096 $10.00
Lease Year 42 Aug 1 2047 $10.00 Lease Year 92 Aug 1 2097 $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 48 of 52
Lease Year 45 Aug 1 2050 $10.00 Lease Year 95 Aug 12100 $10.00
Lease Year 46 Aug 1 2051 $10.00 Lease Year 96 Aug 1 2101 $10.00
Lease Year 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 49 of 52
EXHIBIT "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 of land.
. 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 50 of 52
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 51 of 52
This modification or
additional condition
shall :
~ NOT APPLY
APPLY
to this Lease.
EXHIBIT "F"
Modified or Additional Conditions
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee
r ADDmONAL 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.
Page 52 of 52
AGENDA ITEM BACK-UP
DOCUMENTATION
Prepared by:
Jerry Coleman, Esq.
JERRY COLEMAN, P.L.
20 I Front Street, Suite 203
Key West, Florida 33040
Project: ISLANDER VILLAGE
AGREEMENT FOR SALE AND PURCHASE
THIS AGREEMENT is made this ) 9 tty of July, 2006, between ISLANDER VILLAGE, LLC as "Sellerlf 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'\ c\o Thomas
Willi, County Administrator, 1100 Simonton Street, Room 2-205, Key West, Florida 33040.
1. In consideration 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:
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDIVISION, according
to the Plat thereof, as recorded in Plat Book 1, at Page 55, of the Public Records of Monroe
County ,Florida, and adjacent submerged lands, said parcel being more particularly described by
metes and bounds as follows:
Commenting at the W'ly Right-of-Way Line ofeross Street and the S'ly Right-of-Way Line of
Fifth Avenue and run thence West along the S'ly Right-of-Way Line of the said Fifth Avenue for a
distance of 450.00 feet to the Point of Beginning; thence continue West and along the S'ly Right-
of-Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence run South for a distance
of 79.47 feet; thence run S 3000'00" W for a distance of 88.04 feet to a curve, concave to the
Northeast and having for its elements a radius of 157.0 feet, and a delta of 43000'; thence run
SE'ly along the arc of said curve for a distance of 117.83 feet to the end ofsaid curve; thence run
S 40000'00" E for a distance of 183.23 feet to a curve, concave to the North and having for its
elements a radius of 92.0 feet and a delta of 95000'; thence run SE'ly and NE'ly along the arc of
said curve for a distance of 152.54 feet to the end of said cure; thence run N 45000'00" E for a
distance of 406.95 feet to a curve, concave to the Northwest and having for its elements a radius of
87.0 feet, and a delta of lr49'24"; thence run NE'ly along the arc ofsaid curve for a distance of
17.95 feet; thence run East for a distance of37.33 feet; thence run S 74058'15" E for a distance of
72.32 feet to a point that is due South of the Point of Beginning; thence run North for a distance of
139.88 feet back to S'ly Right-of.Way Line of the said Fifth Avenue and the Point of Beginning,
containing 4.69 acres more or less.
Page 1
.3. TOTAL PURCHASE PRICE. The total purchase price ("Total Purchase Price") for the Property is Two
Million Twenty Four Thousand Seven Hundred Fifty Dollars and 00/100 (S2,024,750.00) 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 terminate 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
prior to the closing, furnish to Purchaser an enviromnental site assessment of the Property which meets the standard of
practice of the American Society of Testing Materials ("ASTMIt). 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, of Hazardous Materials on the Property. For purposes of this Agreement, "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste of any kind or any other substance which is regulated by any
Enviromnental Law (as hereinafter dermed in paragraph 4.B.). The examination of hazardous materials contamination
shall be perfonned to the standard of practice of the AS TM. For Phase I enviromnentaI site assessment, such standard of
practice shall be the ASTM Practice E 1527. If the Findings and Conclusions section of the assessm.entrepDrts evidence
of recognized environmental conditions, then a Phase II Environmental Site Assessment shall be perfonned at Seller's
expense to address any suspicions raised in the Phase I environmental site assessment and to confmn 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. confrrms the presence of Hazardous Materials on the Property. Purchaser, at its sole option, may elect to terminate
this Agreement and neither party shall have any further obligations under this Agreement. Should Purchaser elect not to
tenninate this Agreement, Seller shall. at his sole cost and expense and prior to the closing, promptly commence and
diligently pursue any assessmen~ clean up and monitoring of the Property necessary to bring the Property into full
compliance with any 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 Hazardous
Materials ("Environmental Law"). However. should the estimated cost of clean up of Hazardous Materials exceed a swn
which is equal to 1% of the Total Purchase Price as stated in paragraph 3, Seller may elect to tenninate this Agreement
and no party shall have 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 boundary 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 Pmchaser 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 business days prior to
closing, furnish to Purchaser a marketable title insurance commitment, to be followed by an owner1s marketable title
insurance policy (ALTA Fonn "Bit) from a title insurance company, insuring marketable title to the Pmperty 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 easements or claims of easements and (e) unrecorded mechanics I liens.
Page 2
.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 herem, 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 the title defects, Purchaser shall have the option to either: ( a) accept the title as it then is with a reduction
in the Total Purchase Price by an amount agreed 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 obligations under this Agreement.
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 encwnbrances, except for those that are of record and acceptable encwnbrances in the opinion
of Purchaser and do not impair the marketability of the title to the Property.
9. PREP ARA lION OF CLOSING DOCUMENTS. Upon execution of this Agreement, Seller shall submit to
Purchaser a properly 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 enviromnental affidavit and all other documents and instruments customary to similar
transactions in Monroe 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 instruments 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 Property shall be satisfied of record by Seller at or before closing. In the event Purchaser acquires fee title to
the Property between January I and November I, Seller shall, in accordance with Section 196.295, Florida Statutes,
place in escrow with 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 I, Seller shall pay to the county tax collector an amount equal to the taxes that are detennined 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 notice that it has received all required permits, approvals and ROGO allocations to build the improvements
necessary to fulfill 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 docwnents 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
docwnentation curing the defects, whichever is later. The exact date, time and place of closing and closing agent shall be
Page 3
.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 AND CONDITION OF REAL PROPERTY. Seller assumes all risk of loss 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 ofllie
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 Sellers execution of this Agreement, ordinary wear and tear
excepted. However, in the event the condition of the Property is altered by an act of God or other natural force beyond
the control of Seller, Purchaser may elect, at its sole option, to terminate this Agreement and neither party shall 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 listing 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
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. DEF AUL T. 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 permitted by law or in equity resulting from the otherfs
default. In connection 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
monies 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. ASSIGNMENT. This Agreement may not be assigned by either Party without the prior written consent of the
other Party.
21. 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 remaining provisions of this Agreement shall not be affected.
Page 4
.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 unique Property Characteristics, such agreements
containing the entire agreement between the parties pertaining 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.
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 covenant, condition or right; but the same shall remain in full force and effect.
26. AGREEMENT EFFECTIVE. This Agreement or any modification, amendment or alteration thereto, shall not
be effective or binding upon any of the parties hereto until it has been executed by all of the parties hereto, and finally
approved pursuant to any legal or regulatory requirements.
27. ADDENDUM. Any addendum attached hereto that is signed by the parties shall be deemed a part 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, and either delivered personally or mailed to the appropriate address indicated on the first page of this Agreement,
or such other address as is designated in writing by a party to this Agreement.
29. SURVIVAL. The covenants, warranties, representations, indemnities and undertakings of Seller set forth in this
Agreement shall survive the closing, the delivery and recording of the deed described in paragraph 8. of this Agreement
and Local Government's title to or possession of the Property.
30. CONTINGENCIES. In addition to the permit and ROGO allocation contingency set forth above in Paragraph
17, the closing of this transaction 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 FULL YUNDERSTOOD, SEEK THE ADVICE OF
AN ATTORNEY PRIOR TO SIGNING.
REMAINDER OF PAGE IS BLANK
Page 5
RE Nos.: TBD
AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE 1012
SELLER
ISLANDER VILLAGE, LLC
STATE OF Florida )
COUNTY OF Monroe)
The foregoing instrument was acknowledged before me this t:2 day of 0 ~"~ ' 2006,
by ~\ l'\ 0 Sw;.(~ ':tn: . He is personall 0 to me or produced as identification.
~.~~tr~?;.-< PATRICIA WEECH
ft./, @.\..~ MY COMMISSION # DO 356569
'i.~{,':.f EXPIRES October 25. 2008
~"'~,?f.;~~~'" Bonded T1'1ru Notary Pllblfc UndetWr'~ers
tary Public
Patricia Weech
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
(NOTARY PUBLIC)
SEAL
Witness
By:
Witness
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
RE Nos.: TBD
AGREEMENT FOR SALE AND PURCHASE
SIGNATURE PAGE 2 of2
(SEAL)
Attest:YANNY 1 KOLHAGE, CLERK
BYC?~/~~
DeputY Clerk
Approved as to Form
By:
Date:
Page 7
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ADDENDUM
( IMPROVEMENTS !PURCHASER)
A. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing may be obtained from your
county public health unit. This notice is being provided in accordance with Section 404.056(8),
Florida Statutes. 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 properly certified by the Florida Department of Health and Rehabilitative Services.
If radon gas or radon progeny is discovered, Purchaser 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.
B. Wood Destro in Or anismB Ins ection Re ort. Purchaser may, at its sole cost and expense,
obtain a Woo Destroy~ng Organ~sms Inspect~on Report made by a state licensed pest control fiDn
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, Purchaser 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 Improvements. 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 Price or (b) terminate
this Agreement, thereupon releasing Purchaser and seller from all further obligations under this
Agreement.
(~ --------=----
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Date signed by Seller
~~~ BY'
y Purchaser
SELLER
By;
Date signed by seller
RY D. SANDERS
ASSISTANT COUNTY ATTO
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Page 8
LEASE
BETWEEN
MONROECOUN1Y
"LESSOR"
AND
ISLANDER VILLAGE, LLC
"LESSEE"
DATED H 1'1 , 2006
C:\Documents and Settings\peters-katherine\Local Settings\Temporary Internet Files\OLK30\Islander
Village - AFFORDABLE 99 YEAR LEASE v2.doc7/13/2006 3:28 PM
Table of Contents
Article Title Page No.
r Definitions 3
II Demised Premises 6
III Term 7
N Rent 7
V Non-Subordination 8
VI Payment of Taxes 9
VII ~echarUcs'l1ens 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
XN 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
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Key West~ Monroe County, Florida, on this
_ day of ,2006, by and between MONROE COUNTY (referred to as
the "Lessor") and ISLANDER VILLAGE, LLC (referred to as the "Lessee").
RECITAlS
WHEREAS, Lessor is the owner in fee simple of the property located at
, Monroe County, Florida, and more particularly described on the
attached Exhibit" A" (hereinafter "Property"); and,
WHEREAS, it is 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 eighty. nine
(89) affordable housing units (provided allowed by County regulations and hereinafter the
"Affordable Housing Units"), and Initial Lessee may rentflease 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!
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
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 alienability of 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 assigmnent fees, rents
or any other compensation given or received in or "outside" of a related transaction) shan
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 Occupancy 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
"Initial Lessee" means ISLANDER 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 theTenn 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 pennits,
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 set forth 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
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" may in
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 fonn 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 in, and derives at least seventy percent (7096) 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
S~ction 2.01 Lessor's Demise. Upon the terms and conditions hereinafter set forth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial Lessee 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 the Initial Lessee and the Initial Lessee hereby leases from the Lessor, the
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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:
record;
(a) Conditions, restrictions and limitations, if any, now appearing of
(b) Zoning ordinances ofthe 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
Section 3.01 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 inc1usive1 unless sooner terminated, or extended, as hereinafter
provided (the "Termination Date"). Lessee shall be given possession on the Effective Date
and the terms 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 forth1 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
Section 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
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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 form of a single schedule of all rental due dates under the Term of the Lease dilly
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 4.03. 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 (10%) 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
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Non-Subordination
Section 5.01 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 of its 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 6.03 Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
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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 (1 112) 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 6.05 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 ofthis Lease or obligated to pay any interest or
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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 shall 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 Miordable 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 portiones) 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, or in any
other manner which, as a matter of law, 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 7.03 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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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 F1orida.
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 9.01 Indemnification by Lessee. During the Term ofthe 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 ofthe 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
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any, or possible entitlement to insurance coverages required by this Lease.
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, injury 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 Sub1essees, 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, injury 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 9.02 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 9.03 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
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Lessee, said sums so paid shall be deposited in a joint account of the Lessor and the Lessee
in a bank designated by the Lessee and located in the County in which the Demised
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 (1.5) 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 1.5-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 ofinsurancefimds
for reconstruction of the improvements in the event of any casualty or damage to such
improvements.
VVhile 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
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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.
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 10.03 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 requirement for such additional insurance 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
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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.
Section 10.05 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 maybe 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 of the 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. Allipolicies 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 anyway affect
Page 17 of 53
the validity or enforceability of such insurance insofar as Lessor, and that (ii) such policy of
insurance shall not be changed or cancelled without at least thirty (30) days written notice
to the Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or
subject to any assessments thereunder.
Section 10.09 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 immediately
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
Page 18 of 53
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee. Without the written consent of Lessor,
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 ofInitial 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 that it 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 ofthe Lessor as set forth above and said Units
are sold at prices allowed under the Affordable Restrictions.
Page 19 of 53
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
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.
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 deve10persjbuilders are otheIWise 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
Page 20 of 53
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
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 contrary, all
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's
requirements of moderate or lesser income affordable housing, adjusted forfamily 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 resenration 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 12.0~ 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:
NOTICE OF RESTRICTIONS
ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT
OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECfED
THEREON WILL BE SUBJECfTO CERTAIN RESTRICflONS 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 PUBUC RECORDS OF MONROE
COUNTY, FLORIDA.
Page 21 of 53
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
Restrictions. Any instrument of conveyanceJ leaseJ assignment or other disposition made
without following the notice procedures set forth herein shall be void and confer no rights
upon any third personJ 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 12.05 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 UnitJ 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 if it exercises its right of
first refusal) and to cooperate with reasonable closing
procedures not in conflict with the Affordable Restrictions.
Page 22 of 53
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-
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 (so) 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 (s) 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 jSublessee 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
Mordable 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,
a1llegal 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
Page 23 of 53
. '
forcing sale and reassignment of any improvements thereon.
d. Lessor shall be deemed reasonable in withholding its approval for any
proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. After 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 ofthis Article XII
and allow Lessor or its designee to purchase the Affordable Housing Unit at
the highest price permitted under the Mordable Restrictions. Lessor may
establish rental first right of refusal procedures similar 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
Mrordable 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.
Page 24 of 53
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
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 Miting:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAFfER 83
FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOR STORAGE OR DISPOSmON OF THE LESSEE'S
PERSONAL PROPERTY.
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 Mfordable
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 theirinterest 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.
Page 25 of 53
Section 12.08 Administrative Fees. With the exception of the initial sales by Initial
LesseeJ the Lessor or its designee shall be entitled to charge three and one-half percent (s
112 %) of the Purchase Price (gross compensation however described) for any transferred
interest (other than simple security mortgage interests or rental agreements) in which
Lessor identified the purchaserJ as an admnistrative fee for coordinating the closing on any
Affordable Housing UnitJ 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 stampsJ intangible taxes, prorated taxesJ real estate commissionsJ
insuranceJ homeowners' assessmentsJ loan expenses and the likeJ or rental management or
processing fees for rental units. In the event Lessor was unable to identify a purchaserJ
Lessor shall still be entitled to an administrative fee of one and one-half percent (1 112 %) of
the Purchase Price for review of the contract and assistance with coordinating the closing
on the Affordable Housing Unit. Mer the initial sales by Initial LesseeJ 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 LesseeJ Lessor or its designee maYJ initially and from
time to time, establish, promulgateJ revise and/or waive all or part of such fees related to
the administration of this Lease and any SubleasesJ but in no event may Lessor increase the
amount of the administrative fee to an amount in excess of three and one-half percent (S ll2
%) 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 IS.01 Eminent Domain; Cancellation. IfJ at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domainJ 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 divisionJ annual abatement of Rent or other
adjustments as are just and equitable, within thirty (so) 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
LessorJ neverthelessJ 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,
Page 26 of 5S
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
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
Section 14.01 Requirement to Construct Project.
(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 eighty-nine
(89) Affordable Housing Units within eighteen (18) months thereafter. The foregoing
limitation of time for the 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
performance 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, roles and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
Page 27 of 53
" ,
(d) The 1m tial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
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
anypennitting 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 F1orida.
(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 Project 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
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discretion. Lessor's designees, for purposes of this Article 14.02, shall include cityJ county
or State code or building inspectors, and the like, without limitation. Initial Lessee shall
permit building and code inspectors access customary to the performance of their duties
related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
14.03 Forced Delay in Performance. Notwithstanding any other provisions of this
Lease to the contrary, the Initial Lessee shall not be deemed to be in default under this
Lease where delay in the construction or performance of the obligations imposed by this
Lease are caused bywarJ revolution, labor strikes, 10ckoutsJ riotsJ 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 performance 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 15.01 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 Demised Premises, to a Federal
or State Savings & Loan Association, Bank or Trust Company, Insurance CompanYJ 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 mortgagees) 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 thereot) 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
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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.
(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 of this Lease (e.g., including, but not limited to, taxes or assessments), the
leasehold mortgagee(s) shall have thirty (30) 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 oHhis Section 15.01(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 (30) 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 15.o1(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
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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
upon receipt by the Lessor such new Lease, as provided in this Section 15.D1(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.D1(f) below.
(f) In the event that a( ) leasehold mortgagee(s) shall become the owner or
holder of the Lessee's interest by foreclosure of i ts( 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 of Initial 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() leaseholdmortgagee(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) Wi thin 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
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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
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 vvith respect to any obligations pursuant
to this Lease.
(h) 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 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 vvithout 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 of the Initial Lessee's interest in 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 ).
(j) 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, togethervvith written notice setting forth the
name and address of the assignee(s).
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(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).
(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 15.02 Permitted Mortgages for Sublessees (Unit Owners). The individual
Affordable Housing Unit OwnersjSublessees 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) For informational 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 ofthe
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;
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(d) In the event off ore closure sale by a Sublessee's mortgagee or the delivery
of an assignment or other conveyance to a Sublessee's mortgagee in lieu offoreclosurewith
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 offirst 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
(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 Demised 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
Section 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.
Page 34 of 53
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 Demised
Premises 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
circumstances, shall constitute effective, full and immediate conveyance and assignment to
Lessor of all of the Demised Premises, improvements, 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 portions 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 of in 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, at its
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-Iet 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.
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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 Of 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-letting.
Notwithstanding any such re-Ietting without tennination, 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 16.03 Lessor's Right to Perform. In the event that Lessee, by failing or
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 16.05. 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
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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
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.
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Section 18.03 Recovery of Litigation Expense. 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.
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 18.05 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
Page 38 of 53
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
Representations~ Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use
Section 19.01 Representations~ Warranties of Title and Quiet Enjoyment. 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 19.02 No Unlawful or Immoral Purpose 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
Page 39 of 53
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 ofthe parties hereto. No waiver of a breach of any ofthe covenants in this Lease
shall be construed to be a waiver of any succeeding breach of the same covenant.
Section 20.03 Written Modifications. No modification, release, discharge 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 dilly authorized agents or attorneys.
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 20.05 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
Page 40 of 53
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 ofthe 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 20.09 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
construed in any way as part of this Lease, nor as supplemental thereto or amendatory
thereof.
Section 20.10 GovemingLaw. 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 inunediatelyprior
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 at its own expense, any and all claims for a brokerage commission by either of them
with any brokers.
Section 20.13 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.
Page 41 of 53
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 lessorflessee 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.
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 Mfordable 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, 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 tenninates 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.
Page 42 of 53
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 indemnify
Lessor for damages or claims related thereto and releases Lessor from same.
Section 20.19 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 any way 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.
Section 20.20 Government Purpose. 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 Supplemental 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 forums may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and
Page 43 of 53
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 20.23 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 contemplated, 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
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 20.25 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
Page 44 of 53
and seals, the day and year above written.
Signed, Sealed and Delivered
in the presence of two witnesses:
Printed Name
Printed Name
(as to Lessor)
ODnY" McCoy
IS Ai)
· EST?DANNVL.l(PtHAGE, ClERK
BG~~~
LESSEE: D~UTY ClERK
~:~~,:;~n1<,~.
'h Edwin O. Swift, III, ~an-;;~ ---
ERICA N. HUGHES
MONROE COUNTY ATTORNEY
PROVED AS TO FO
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Page 45 of S3
EXIllBIT "A"
LEGAL DESCRIPTION
A parcel of land on Stock Island, being a part of Block 59, MALONEY SUBDMSION,
according to the Plat thereof. as recorded in Plat Book 1, at Page 55, of the Public Records of
Monroe County, Florida, and adjacent submerged lands, said parcel being more particularly
described by metes and bounds as follows:
Commencing at: the W' 1y Right-of~ Way Line of Cross Street and the S'Jy Right-of-Way Line of
Fifth Avenue and run thence West along the S'ly Right-of-Way Line of the said Fifth Avenue
for a distance of 450.00 feet to the Point of Beginning; thence continue West and along the S'ly
Right-of-Way Line of the sBid Fifth Avenue for a distance of691.45 feet; thence run South for
a distance of 79.47 feet; thence roo S 3"O(rOO" W for a distance of 88.04 feet to a curve,
conoave to the Northeast and having for its elements a ndius of 157.0 feet. and a deha of
43000'; thence nm SE'ly along the arc of said cmve for a distance of 117.83 feet to the end of
said curve; thence run S 4()O()()'OO" E for a distance of 183.23 feet to a curve, concave to the
North and having for its elements a radius of92.0 feet and a delta of 9S000'; thence run SE'ly
and NE'ly along the arc of said curve for a distance of 152.54:feetto the end of said cure;
thence run N 45000'00" E for a distance of 406.95 feet to a curve, concave to the Northwest
and having for its elements a radius of 87.0 feet:. and a delta-of 11049'24"; thence run NE'ly
along the arc of said curve for a dlstance of 17.95 feet; thence run East for a distance of 37 .33
feet; thence roD S 74058'15" E for a distance of 12.32 feet to a point that is due South of the
Point of Beginning; thence run North for a distance of 139.88 feet back to S'ly Right-of-Way
Line of the said Fifth A venue and the Point of Beginning, containing 4.69 acres more or less.
Page 46 of 53
EXHIBIT "B"
DEPICTION OF PROJECT LAYOUT
1
r
.. AM - .", '6a1'elll:) -- ... .I:2aII'
-I ~ - IIWnII .....
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Page 47 of 53
This Instrwnent Prepared By:
JERRY COLEMAN, P.L.
20 1 Front Street, Suite 203
Key West, Florida 33040
EXHmIT "C"
COMMENCEMENT DATE AGREEMENT
200 by and between
("Lessee") .
This Agreement IS made as of
("Lessor") and
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 Expiration Date:
,210_
The execution of this Agreement shall not constitute an exercise by Lessee onts option with
respect to any Extended Term.
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR:
LESSEE:
By:
By:
its
its
Witness 1
Witness 1
Witness 2
Witness 2
Page 48 of 53
EXHmIT "D"
Term Portion ~ B!ll! Term Portion ~ ~
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 1 2011 $10.00 Leaae Year 56 Aug 1 2061 $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 Year 58 Aug 1 2063 $10.00
Lease Year 9 Aug 1 2014 $10.00 Lease Year 59 Aug 1 206<1 $10.00
Lease Year 10 Aug 1 2015 $10.00 Lease Year 60 Aug 1 2065 $10.00
Lease Year 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 2068 $10.00
Lease Year 14 Aug 1 2019 $10.00 Lease Year 6<1 Aug 1 2069 $10.00
Lease Year 15 Aug 1 2020 $10.00 Lease Year 65 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
Leae Year 18 Aug 1 2023 $10.00 Lease Year 68 Aug 1 2073 $10.00
Lease Year 19 Aug 1 2024 $10.00 Lease Year 69 Aug 1 2074 $10.00
Lease Year 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 2076 $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
Lea88 Year 27 Aug 1 2032 $10.00 Lease Year 77 Aug 1 2082 $10.00
Lease Year 28 Aug 1 2033 $10.00 Lease Year 78 Aug 1 2083 $10.00
Lease Year 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 2036 $10.00 Lease Year 81 Aug 1 2086 $10.00
Lease Yeer 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 Leese Year 89 Aug 1 2094 $10.00
Lease Year 40 Aug 1 2045 $10.00 Lease Year 90 Aug 1 2095 $10.00
Lease Year 41 Aug 1 2046 $10.00 Lease Year 91 Aug 1 2096 $10.00
leaBO Year 42 Aug 1 2047 $10.00 LllB.lI8 Year 92 Aug 1 2097 $10.00
Lea&e Year 43 Aug 1 2048 $10.00 Lease Year 93 Aug 1 2098 $10.00
Lease Year 44 Aug 1 2049 $10.00 Lea&e Year 94 Aug 1 2099 $10.00
Page 49 of 53
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 12101 $10.00
Lease Year 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
leaseVear49 Aug 1 2054 $10.00 Lease Year 99 Aug 1 210<1 $10.00
Lease Year 50 Aug 1 2055 $10.00
Page 50 of 53
EXHffiIT "E"
LETTER OF ACKNOWLEDGEMENT
TO: Initial Lessee, or its assigns
Address of Initial 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 of land.
. 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
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 ofthe Affordable Housing Unit.
Page 52 of 53
This modification or
additional condition
shall:
-.X NOT APPLY
APPLY
to this Lease.
EXHffiIT "F"
Modified or Additional Conditions
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee
fADDlTIONAL 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 ofthe notice to enter into a reservation agreement with Initial
Lessee for the purchasej1ease of all or a portion of the Affordable Housing Units,
unless Initial Lessee has been authorized, in writing (which the omission of this
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 purchasersj1essees 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.
Page 53 of 53
ORDINANCE NO. 005- 2006
AN ORDINANCE OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA;
PROVIDING FOR THE PURCHASE OF PROPERTY TO
BE DEVELOPED FOR THE ESTABLISHMENT OF
AFFORDABLE AND EMPLOYEE HOUSING;
PROVIDING FOR THE FUTURE DEVELOPMENT OF
SUCH HOUSING; PROVIDING FOR SEVERABILITY;
PROVIDING FOR REPEAL OF INCONSISTENT
PROVISIONS; PROVIDING FOR INCORPORATION IN
THE MONROE COUNTY CODE; PROVIDING FOR AN
EFFECTIVE DATE
WHEREAS, the Board of County Commissioners of Monroe County, Florida (the
"County") has determined that a need exists within Monroe County for the provision of housing
affordable to people of moderate, middle or lesser income; and
WHEREAS, the County desires to have a number of strategies in place to increase the
County's stock of affordable and employee housing, and for those who are employed or self
employed, housing commonly known as workforce housing; and
WHEREAS, one such strategy is to provide for the purchase and development or
redevelopment of property to provide such affordable, employee, or workforce housing;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, as follows:
SECTION 1. The County hereby establishes for the purposes of increasing the
available stock of affordable and employee housing the program described in this Ordinance (the
"Purchase and Development Program").
SECTION 2. Under the Purchase and Development Program, the County may
purchase from any willing landowner property located in the County and deemed desirable by the
County for the future development of affordable or employee housing at a price of not more than
65% of the appraised value of said property. As a condition to such sale, the County may enter
into an agreement, acceptable to the County, whereby the selling landowner or another entity
selected by such landowner leases the property back from the County for the development by
such landowner or other entity of affordable or employee housing to be located on such site.
Pursuant to said agreement, the land shall be owned by the County but the improvements may be
leased to a private entity or individual for utilization as rental housing or leasehold interests sold
to private entities or individuals as single family housing.
SECTION 3. In addition to any agreement entered into by the CqUnty for the
development of affordable or employee housing as described in Section 2 above, the County may
develop by resolution procedures to implement the Purchase and Development Program terms of
this ordinance, including (i) an application process whereby a property owner may apply for
consideration by the County for purchase and development under the Purchase and Development
Program, (ii) a mechanism for providing reasonable public notice of the opportunity to participate
in the Purchase and Development Program; (iii) the criteria by which projects will be accepted for
the Purchase and Development Program; (iv) monitoring of income eligibility and
implementation of rental rate and purchase price restrictions for units at the property, (v)
timelines for when the lease of acquired property would commence; (vi) restrictions on the ability
of an individual purchaser of a leasehold interest in such property to sell his or her interest; (vii)
the implementation of administration fees for the ongoing operation and monitoring of said
project; and (viii) such other provisions as will further the provision of affordable and employee
housing in the County. Provisions in items (iii) through (vii) may be prescribed in the Purchase
and Sale Leaseback Agreements between the County and the selling entity.
SECTION 4. For purposes hereof, "affordable housing" and "employee housing" shall
have those meanings as defined under the current Chapter 9.5 of the Monroe County Code of
Ordinances, or Chapter 9.5 as amended, or any successor, amended or additional definitions or
chapters of the Monroe County Code.
SECTION 5. If any section, subsection, sentence, clause or provision of this ordinance
is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
SECTION 6. All ordinances or parts of ordinances in conflict with this ordinance are
hereby repealed to the extent of said conflict.
SECTION 7. The provisions of this ordinance shall be included and incorporated in the
Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and if
necessary, shall be appropriately renumbered to conform to the uniform numbering system of the
Code.
SECTION 8. This ordinance shall take effect immediately upon receipt of official notice
from the Office of the Secretary of State of the State of Florida that this ordinance has been filed
with said Office.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at
a regular meeting of said Board held on the 15th day of March, 2006.
Mayor Charles "Sonny" McCoy
Mayor Pro Tern Murray Nelson
Commissioner George Neugent
Commissioner David Rice
Commissioner Dixie M. Spehar
:z .....,
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(SEJ\L)
Attest: DANNY'L.KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
.#tfJtf~..<
By . .(f
Mayer CharleS' "Sonny" McCuy
Mayor Pro Tem Murray Nelson
~/~
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Depu Clerk
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18. 2007
Bulk Item: Yes ---X- No
Division: County Attorney
Department: County Attorney
Staff Contact Person: Cynthia Hall
AGENDA ITEM WORDING:
Approval of Assignment of Covenant of Unity of Title regarding Lots 50 and 51, Port Antigua Plat No.
2, Lower Matecumbe Key, from Monroe County to Islamo~ Village ofIslands.
ITEM BACKGROUND: In 2001, the then-owner of property located at 217 Gu1fview Drive, Lower
Matecumbe Key recorded a Unity of Title joining two adjacent lots under one RE Number in return for
building permits. The Unity of Title stated that the Unity was a covenant running with the land,
preventing the owner from selling the two lots separately. At the time, the property was located in
Islamorada, Village ofIslands, however, the Unity of Title erroneously recited that the covenant ran in
favor of Monroe County. The current owner no longer wishes to have the lots joined and has
requested that the Unity be discharged. In order to correct this, Monroe County needs to assign its
interest in the Unity to the Village. The Village can then decide whether to release the Unity.
PREVIOUS RELEVANT BOCC ACTION: None.
CONTRACT/AGREEMENT CHANGES: Not applicable.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: N/A
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No lL
AMOUNTPERMONTH_ Year
c!"rt
APPROVED BY: County Atty .x. OMB/Purchasing _ Risk Management _
DOCUMENTATION:
Included
To Follow_
Not Required_
DISPOSITION:
AGENDA ITEM #
PreDared by:
Cynthia L Hall, Esq.
Assistant County Attorney
Monroe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041-1026
(305) 292-3470
(305) 292-3516 (fax)
When recorded return to:
Cynthia L Hall, Esq.
Assistant County Attorney
Monroe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041-1026
(305) 292-3470
(305) 292-3516 (fax)
Property Appraiser Parcel 10 Number
00394487-000700
ASSIGNMENT OF COVENANT OF UNITY OF TITLE
THIS ASSIGNMENT is made this _ day of April 2007, by and between
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida whose
address is 1100 Simonton Street, Key West FL 33040 ("Assignor") to ISLAMORADA,
VILLAGE OF ISLANDS, whose address is P.O. Box 568, Islamorada sFL 33036
("Assignee").
WHEREAS, on August 7,2001, John W. Krutulis, also known as John Wilson
Krutulis, a married man, recorded a Unity of Title in the Public Records of Monroe
County, Florida, Official Records, Book 1716, page 1223, joining under Unity of Title
the following described real properties both situated in Monroe County, Florida:
Lot 50, Port Antigua Plat No.2, according to the plat thereof,
as recorded in Plat Book 6, Page 18 of the Public Records of
Monroe County, Florida.
and
Lot 51, Port Antigua Plat No.2, according to the plat thereof,
as recorded in Plat Book 6, Page 18 of the Public Records of
Monroe County, Florida.
both of which were collectively joined under RE number 00394487-000700,
Alternate Key 1483818 (collectively, Property); and
Page 1 of2
WHEREAS, the Unity of Title recited that the two lots described therein
would henceforth be unified as one plot or parcel of land, and that the covenant,
restriction and limitation would be deemed a covenant running with the land and
would be specifically enforceable by Monroe County, Florida; and
WHEREAS, the Unity of Title was given in consideration for permission to
perform certain work on the dock of one lot and connect utilities between the lots;
and
WHEREAS, the Property is now owned by Shoreline Properties, LLC; and
WHEREAS, Shoreline Properties, LLC, states that the Unity of Title is no
longer necessary, and has requested that the Unity of Title be released and
discharged; and
WHEREAS, at the time the Unity of Title was executed and recorded, the
Property was situated and still remains within the jurisdiction of Islamorada, Village
of Islands;
NOW THEREFORE, for and in consideration of ten dollars ($10.00), and
following a duly-noticed public hearing at which all interested parties were given an
opportunity to be heard:
Assignor assigns and transfers to Assignee any and all right, title, and
interest held by Assignor pursuant to the covenant contained in the aforementioned
Unity of Title with respect to the subject Property.
IN WITNESS WHEREOF, the undersigned has caused this assignment to be
executed this _ day of April 2007.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY:
Mario Di Gennaro, Mayor
[SEAL]
Date:
ATTEST: DANNY 1. KOHLAGE, CLERK
By:
Deputy Clerk
MONROE COUNTY ATTORNEY
AP.~.OVED ~S TO. ~:
~'t-.'
C NTHIA L. HALL
ASSISTANT COUNTY ATTORNEY
Date + - "3 - ~ 0 +-
Page 2 of2
Document Prepared by:
Joe Miklas, P.A.
Joe Miklas
P.O. Box 366
Islamorada, FL 33036
UNITY OF TITLE
MONROE COUNTY
OFFICIRL RECORDS
FILE 112:50405
BK_1716 PGi1223
RCD Rug 07 2181 03:25PM
DANNV L KOLHAGEt CLERK
Parcel 1.0. Numbers: 00394487-000700
00394487-000800
TInS UNITY OF TITLE, dated this ~ day of JULY ,2001, by John
W. Krutulis, also known as John Wilson Krutulis, a married man hereinafter referred to
as "Owner".
WIT N E SSE T H:
WHEREAS, he is the owner of the following described property:
Lots 50 and 51, PORT ANTUGUA PLAT NO 2,
according to the plat thereof, as recorded in Plat
Book 6, Page 18 of the Public Records of Monroe
County, Florida.
The property herein DOES NOT constitute the HOMESTEAD property of
the Owner, nor does it constitute the homestead of any member of the owner's
family, nor is it contiguous thereto. The Owner's HOMESTEAD address is 7360
S.W. 166 Street, Miami, FL 33157
The preparer of this instrument was neither furnished with, nor requested
to review, an abstract on the described property and therefore expresses no
opinion as to condition of title.
WHEREAS, the Owner recognizes and acknowledges that for the public health,
welfare and safety, as well as for the benefit of the adjacent properties, that the property
described herein should not be divided into separate parcels owned by separate owners.
NOW, THEREEFORE, in consideration for the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Owner hereby agrees as follows:
1. That the property referenced herein shall be considered as one (1) plot or
parcel of land and that no portion of said plot or parcel of land shall be
sold, transferred, devised or assigned separately, except in its entirety, as
one (1) plot or parcel of land.
FILE t1250405
BKt1716 pst 1 224
2. That this Agreement shall not be interpreted to preclude the development
of the subject property for a single family residence in accordance with
applicable law and pursuant to any permits for constIUction that may be
issued from time to time in accordance therewith.
3. The Owner understands and agrees that this condition, restriction and
limitation shall be deemed a covenant running with the land and shall
remain in full force and effect and be binding upon the Owner, his heirs,
successors and assigns and shall be specifically enforceable by Monroe
County, Florida.
Signed, Sealed and Delivered in
the Presence of:
S"fW'
19nature 0 Itness
~\i\ ~(\
Pri Name of Witness
~~~~
}j!Jf6W' Krutulis
State of Florida
County of
foregoing instrument was acknowledged before me this ~ day of
,2001 by John W. Krutulis who is personally known to me or
wh oduced a Florida Driver's License as identification.
SEAL
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MONROE COUNTY
OFFICIAL. RECORDS
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18, 2007
Division: County Attorney
Bulk Item: Yes
NoL
Contact Person: Suzanne A. Hutton
AGENDA ITEM WORDING:
Clarification of reasons for termination of Cudjoe Lease to house Growth Management. Related to the issues
discussed at the March 21st meeting, which included finances, but the discussion did not expressly set forth
finances as the basis for termination.
ITEM BACKGROUND:
At the 3/21/07 meeting, the BOCC moved to terminate the lease based on the duplication of offices
which would result, although it was originally contemplated that services could be consolidated in
Cudjoe, which is in an area better suited to providing services to the users. This item is intended to
clarify that the termination took into consideration the state of the current budget, the cost of
maintaining staff at the Marathon Government Center as well as at the Cudjoe building, and the costs
of moving and new office equipment furnishings, which at this time is not financially feasible.
PREVIOUS RELEVANT BOCC ACTION:
See Item Background.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A BUDGETED: Yes No
COST TO COUNTY: N/A SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No-X- AMOUNTPERMONTH_ Year
APPROVED BY: County Atty ~ OMBlPurchasing _ Risk Management _
DOCUMENTATION:
Included
To Follow_
Not Required X
DISPOSITION:
AGENDA ITEM #
.,.,
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18. 2007 - KW
Bulk Item: Yes No ~
Division:
County Attorney
Staff Contact Person: Suzanne A. Hutton
AGENDA ITEM WORDING:
Approval of a new contract with Jerry Coleman, Esq.
ITEM BACKGROUND:
Mr. Coleman terminated his prior contract effective April 6, 2007. At the March 15, 2007 BOCC
meeting, the BOCC directed renegotiation of a short term contract to allow Mr. Coleman to continue to
provide affordable housing consulting services to the Workforce Housing Task Force until we can get a
full-time Growth Management attorney on board and brought up to speed on these critical and complex
Issues.
PREVIOUS RELEVANT BOCC ACTION:
3/15/2006 direction to staff to renegotiate.
CONTRACT/AGREEMENT CHANGES:
Short-term to allow for effective transition.
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No xx
AMOUNT PER MONTH_ Year
APPROVED BY: County Atty ~ OMBlPurchasing _ Risk Management _
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
Revised 2/05
AGENDA ITEM #
BOARD OF COUNTY COMMISSION
AGENDA ITEM SUMMARY
Meeting Date: 4/18/07 - Key West
Division: County Attorney
Bulk Item: Yes ~ No
Staff Contact Person: Suzanne A. Hutton
AGENDA ITEM WORDING:
Approval of Settlement Agreement Addendum in Department of Community Affairs v. Monroe County
School Board. Kitty Wasserman. BHF Corporation. and Monroe County. Case No. APP-92-061,
DOAH Case No. 93-1316, requested by the Big Pine Neighborhood Charter School, requesting an
increase from 140 students to 200 students and from Pre-Kindergarten through 3rd Grade to Pre-
Kindergarten through 8th Grade.
ITEM BACKGROUND:
The Big Pine Neighborhood Charter School is seeking two changes to the previously agreed upon
Settlement Agreements in this cause; to increase from 140 students to 200 students AND from Pre-
Kindergarten through 3rd grade TO Pre-Kindergarten through 8th Grade
PREVIOUS RELEVANT BOCC ACTION:
12/12/1994 Settlement Agreement
2/10/1995 Amended Settlement Agreement
3/22/2004 (Collectively "Agreement")
CONTRACT/AGREEMENT CHANGES:
From 140 students to 200 students
From Pre-Kindergarten through 3rd Grade to Pre-Kindergarten through 8th Grade
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNTPERMONm_ Year
APPROVED BY: County AUy --1L- OMBlPurchasing _ Risk Management
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 2/05
STATE OF FLORIDA
LAND AND WATER ADJUDICATORY COMMISSION
DEPARTMENT OF
COMMUNITY AFFAIRS
Petitioner,
v.
CASE NO. APP-92-061
DOAH CASE NO. 93-1316
MONROE COUNTY SCHOOL
BOARD, KITTY WASSERMAN,
BHF CORPORATION, AND
MONROE COUNTY, a State
of Florida Political
subdivision,
Respondents.
/
SETTLEMENT AGREEMENT ADDENDUM
The original agreement was entered into between Monroe
County (County), Monroe County School Board (Board) and the
Department of Community Affairs (DCA) on December 12, 1994. The
original agreement was last modified by the parties pursuant to
an amended settlement agreement effective March 22, 2004.
The County, Board and DCA through their undersigned
representatives further agree and modify their December 12, 1994
Settlement Agreement, February 10, 1995 Amended Settlement
Agreement and March 22, 2004(Collectively ~Agreement") as
follows:
1. The parties reaffirm their commitments, obligations
and responsibilities as stated in the Agreement except as stated
1
ln this addendum. DCA is authorized to enter into this
agreement with these other parties to effectuate the provisions
and purposes of the Florida Environmental Land and Water
Management Act and any rules promulgated hereunder.
~380.032(3), Fla. Stat.
2. The following language replaces Agreement section 4
sub-section A.
The Big Pine Neighborhood Charter School occupies the
small school and buildings located on approximately
4.5 acres consisting of lots 5, 6, and 7 of Tropic
Island Ranchettes on Big Pine Key. The school's
population is limited to 200 students. The school
will serve students from pre-kindergarten through
eighth grade. All students residing within Monroe
County may attend the school.
This Settlement Agreement Addendum will take effect
immediately after all parties have signed it.
2
Monroe County Board of County Commissioners
Witnesses:
BY:
Witness Name:
Dixie Spehar, Mayor
Date:
Witness Name:
Attest:
Clerk
S
Date:
. HU:00%
7j oS: () 7
/
State of Florida
County of
The foregoing Settlement Agreement Addendum was
acknowledged before me this ____ day of , 200__, by
, Mayor of Monroe County's Board of County
Commissioners, on behalf of the Commission. He/she is
personally known to me or has produced as
identification and did (did not) take an oath.
Print name:
Notary Public
My Commission Expires:
Monroe County School Board
3
Witnesses:
BY:
Witness Name:
Andy Griffiths, Chair
Date:
Witness Name:
Attest:
Randy Acevedo, Superintendent
Accepted as to Legal Form
and Sufficiency:
Dirk Smits
Date:
State of Florida
County of
The foregoing Settlement Agreement Addendum was
acknowledged before me this ____ day of , 200__, by
, Chair of the Monroe County School Board, on
behalf of the Board. He/she is personally known to me or has
produced as identification and did (did
not) take an oath.
Print name:
Notary Public
My Commission Expires:
4
Department of Community Affairs
Witnesses:
BY:
Witness Name:
Tom Pelham
Secretary
Date:
Witness Name:
Attest:
Clerk
Accepted as to Legal Form
And Sufficiency:
Shaw Stiller
General Counsel
Date:
State of Florida
County of Leon
The foregoing Settlement Agreement Addendum was
acknowledged before me this ____ day of , 200__, by
TOM PELHAM, Secretary of the Department of Community Affairs, an
agency of the State of Florida, who is personally known to me
and did take an oath.
Print name:
Notary Public
My Commission Expires:
5
FROM
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 08:57AM Pi
RECEIVED
PI..' NejghlJo;'~"IO )d Charter School Inc. APR 09 2007
302~~O (}') z.:t' joas Highway MONROE COUNTY ATTORNEY
Hip-PinE! !(IY, FL 33043
.. .1 Pilu:' : J.5872-1266 F<lx: 305-872-1265
:1.1 i:"> \ .:1.
'"dl'l~ I,' I"'" idl' Ir~\Ii:illillll;11 ;l1l':!.:!Jl!li\L:2!.!!11Jil!'.cnl"'idl~~T-
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II I Hit.,. l H,' :llP'l)l, L ' ! . , .
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FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
~b/~~'L~~4 11:53 8504883309 COMM PLANNING
Apr. 06 2007 08:57AM P2
PAGE 02/06
.'
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STATE 01' FLOP.I:DA
LAND ANt) WATER AOOUDlCATORJ' COMMISSION
DEPARTMENT OF
CQMMUNITY.Ar~RS
.
, ' .
. '.
Petitioner,
CASE NO. APP-92-061
OOAH CASE NO. 93-1316
v.
MONROE COUNTY SCHOOL
BOARD, KITTY W~SERMAN,
BHr CORPORATION, AND
MONRO! COUNtY, a state
of Florid.a l?o11tic::al
subd.:ivi,.:i.on,
Re8pondent..
I
SE!'!'t.EMlMT AGM:EHZtn' ADOBN!)tJN
.to
The, original
I,
agre-ement. was
entered 'into' between Mqnroe
"-"
County <County), Monroe County School Boa.rd (8o.rcl) and thl!l
Department of Community AIfeirs (DCA) on December 12, 1994. The
criginal agreement was modified by the parties pursuant to an
amended settlement agreement effective February 10, 1995.
The County, Bo.r~ an~ DCA through their undersigned
.~~~e.entet1~.s'further agree and, modify their D8eamh.r 12~ 1994.
Settlement Agreement and February 10, 1995 Amended Settlement
Agreement (Collectively ~Aqr$.mentU) as follows:
1. The parties reaffirm their commitment" obliqations
and r.,pons1bilit~e' as stated in the Agreement $XC$pt as stated
in this aadendum. DCA is authorized to enter into this
1
_.
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
06/30/20B4 11:53 8504883309 ODMM PLANNING
Apr. 06 2007 08:57AM P3
PAGE 11;:l/i:lb
~
e
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aqreement wlth these other parties to effectuate the provisions
_.
and purposes or the Florida Enviro~antal Land *nd water
Maneqement Aet and any ruleB promulgated h~revnder.
'6310.032(3', Fla. Stat.
2. The following language replaces Agreement section 4
sub-section A.
The Big Pine Neighbo~hood Cherter School oc~upie~ the
small s~hool and buildings located on approximately
4.5 acres consistinq of lote 5, 6, and 7 of Tropic
Island Ranchette5 on Big Pine Key. The school'S
population is limited to 130 students. Th$ school
will serve students trom pre-kindergarten tbrough
third grade. Monroe c~un~y students residing within
and ~outh of th. City of M.rathon may attend the
sohool.
'-
3. The following 1 anguaqe , r~places.AqX$ement seQt10n 4.
sub-sect1on C. .
School recreational facilities consiat of a playground
and open playtield within the lence 11n., which are
ava11aQle tor hosting school and community
recreational activities and events. The school's site
facilitie$ are usable tor $ohool related and community
events. ' .
4. Tb8 Agreement section 5 sub-section B, wh1eb reads
'rJ:1f!!' popula tion at.' pre-kindergarten througl) second
grade students residing on Dig Pine Key, No-Name Key
and north to the Seven Mile Bri~ge is more than 200.
is deleted.
2
-.
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
. e6/3B/2~04 11:53 8504883309 COMM PLANNING
Apr. 06 2007 08:57AM P4
PA6E 04/06
e
e
',--.
this S~t'tlement Aqreement Md~ndum will take effect
immediately .ft~r all parties have signed it.
Mon~oe Oounty'Boa.d Q~ CountY OCMmiae1oners
Witnesses:
"""--7 .';1 ~ I t;! N1:h.. 4 - /1
~ .~-..JJ/~.:,~/......... aYwc<{'~ ~~
Wi tne.s~am.e: p~",:".,. ,... "..I"..."",. k. :" 0' _'.! _~,'iQ.r ~,. '
. DAN~L. I.i..OilJ.':'"..."...... i_ I.
CL~~ .. . A c.~,,., _ _ D"te:.. {lel · / i - 0 1-
~t Jame: :rfOloC.b~ i~e A- CL,\fl.i6 .
AttestAYk ~~ D.G.
Clerk. '
Accepted as to La;al For.m
and SUfficiency:
(,':~-t o\N~ Q,()..f~r. '.
John R. COlliE. ' .
Oata: c" \ \ f..,. 't( Q '1 .'
',-,.
state of Florida
County of MtJ" r~e.
The fore~oi~q Settlement Aqreement Addendum was
acknowledqed b.fo~e me this 18""'-" oay of ~. , 200~, by
I!JIJ 1'1".a..v. G: !J{e,{S(Jn ,. ,'Mayor' of. Monroe t:;ounty' e.. Board of County
Coumtis'ioners,. on behalf of the Commission.,' .He/she is' '.'
pereonally known to m~ or has p~oduced . ae
identification and did (did not) take an oath.
~A~dC.~Y~
print name: '
Notary Public
My Commission Expir~s:
~--'
My~fANnrj
IiXPlIti8: _ ~D IH28lI
-',"",,-I\''''~
3
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
'05/30/2064 11;53
85el4883:3e19
COMM PLAl+lI~
Apr. 06 2007 08:58AM P5
PAGE ~5/06
-
e
MonrOQ County School Board
~J~)
Eileen Quinn, chair
SY:
Date:
Attest:
John R.
sup.rintendent
. mith
. Date: /~#~~ .
--
State ot Florida
County of ~11 0 ;JL."IM
The foregoing settlement Agr~~ent Adden~ was
a~RowledSU!d. ,before JIle thi:s -1...f:k..tJiay of Cl'~fHl.A.' 200~ by
~ ~ ~u.IA....~ , Chair Of the Monroe County School Board, on
bebalf of the Board. He/~ is' personally mown to me or Me
produced. as id.n~ification. ~nd.did (di~
not) . take an oath .' ,1 ...
.' tC1C4{,' IJ~ c?LJPii~
7 .~.~ ,
(Ol(rnr~
" .
print name: DCIl~;
Notary Public
My Commission Expire.:
..'
"-'
DON Go ClC1LN
MY eoMMISB()N . DO 107221l
ExPIR~: AIIIO I, 20IlB
.....ll'N....., "** \lllcInIIeII
4
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266 Apr. 06 2007 08:58AM P6
06/3B/20e~ 11:53 85048833B9 CDMM PLANNING PAGE 06/06
e e
State of Florida
County of Leon
Dep.rtment of C~unity ~fairs
BY:
HeidJ: HughC!ls
Interim Secretary
Date; ~ ~ ~ -,;,00 +
Accepted a! to Leqal Form
And. Sufficiency:
~~ fV~
Moses ~. Williams
Assistant General Couns.l
Da'te:
'lis/a. Y
The fore9oing Settlement Ag.;ftement tf:i;;dum wa~ "I
ec;;knowledged before me this ~'!1!day of "4"1 r' 200:1..., by
HE1DI HUGHES, Inte~im secretarY-of the Department ot Community
Affairs, an agency of the State of Florida, who is personally
known to me and did take an oath.
_.
. '-1f2.L~~
Pri-nt name:
Nota.ry PUblic
My commiSSionm'res: POIJIoP./l6fd
if I' MY t'Ot.1MlSSQI f CCU7477 SlPIRIS
? .. - Oelbbtr 1UlIo.4
'... IIOIlOIP M1u!lllY ....IIH4U..~ lit.
5
~o.M :
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 08:58AM P7
..~ ",. t
ol3o'22.nn
16: 12 FAX :l'~!l2--,?.:?q
"'-~PLA:\'N"b:C;~EPL .
'. . . ... ,
(itJ 0 :I
,~..,
. r: i)'c /1" ~,P~->-'-
. $1;... t...,..J <<:____etl
S'l'^TE OF rWRIDA c: ~. Ik,,~,~,. t$1',t:
LAND AND WAT!R ~pjUOICATO~Y COMMISSION 5~~j
PEPARTMENT or COMMUNI~~ AtfAI~S,
...
Peti t.1.one,r I
va. ChSE ~O. APP-92-061
MoN~O~ COUNT~ SCHOOL SOARO, XlrTV DeAR C^$E No. 93-131~ ORI
w~sst~AN, SHY CORPORATION, and
.MONRot COUNT~I a political s~divis1on
of the State of Florida,
'Respondent..
--
..
II
..
J
SE~~~~~tlT. ACRE~~~HI
. ,
,
_.
'X'K!!; AGR.EEMENT is entlted into b.tween the Monroe County
SChQol ~04rd ("School Bcar,dU), and the Department of Conununi.ty
Attaira ("DCAIt) I an 19-ency of thl! $tatl~ of Florida..
wtiEREAS, DC~ ie t.he state 1 and planning agency h.ving- the
power and. duty to e~.rciG. o.nc.ra.l supa::v1s1on of the
aQlI1iniatrtltion and ."to:r.'etUIH~nt of chA)>tet' 380. Florida stat~te., I
the Environmental La~d an~ Wat.~ Man.q_ment Act. which 1neluaew
provisions relatin9 to the Flcri.d. }(;,y. M:.. of critical State
concern ("ACSC~): and
W'K.r.:ntA.!:>, t.he School BOArd hali thn po\tler and duty ~o operate,
ec:mt.~ol, and &\J.parvise all tree pu.blJ.~ !Schools w1thin Monroe
count-y, and too dev.lop new .c:h.lcat.l'onal faeilitiel as MY be
rH~CeSSi1,(,Y to 1T\eet the .ducat1onal needs ()t to" .tudonts Berved by
'~.
the publ~e school sy.tero; and
WrU:~t",e, Monroe CQ\,lnty ill the l()cal fClvornment whj,ch iSeluecl
tn. development order at issue ~~ thia sact10n 380.0' app..l to the
:~o~ida ~and and Water Ad,ucic~to~y commissionl and
FROM
BIG PINE NEIGHBORHOND CHARTE
FAX NO. :3058721266
Apr. 06 2007 08:58AM P8
OtJ,'22nlO
...
16: 1.." F.'''' ',CI^'l
,.. "'J'1"53.6
. t.. _. .
.'
PL.A~N I ~(; (lgPT.
.' I',; _ ....... j' HI
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WHEREAS, the part.,ies to this settlotaertt Aqt'fJClIl'nent have been
involved in the flPov.-capt ioned 1 itiq" ~ion conoerni.ng. proposed
a.vQlop~(!nt of AI') eleJDsntary school fer !~07 l~uQ.nts by the Scho~l
~'.:"..
8Qard. on .8ic} Pine Key in the Floriaa Reys Area of c:-it1c:al State
Ccmcern; anCl
WHE~~S, the Hearin9 O!ticer i.sued a Recommended O~Qer on
OetoDer 2S, l!'HJ3, whieh :rec::o~enQed den!al ot t.he SChool Soard
pr-opO.u.l to con.truct. II 1'1.11/ al$menta:r:y tiJchool on unCliat.urDetl
pineland north ot U.s. 1 on e1q Pine x~y; and
. .
,
_.
WHEREAS, the Sehool aoard has offered to abandon the propo~.l
to constru~t a full~si1..f region.l .1G~~nt~~y senool north of u.s.
1 o.n 819 P~ne Xey, ami l.nsteac1 Cljrl,trUQt a sJQall, limited
.lementary ~chool ~n ~i9 pine Xey and expand the aXistin;.
el.mant.~y and middl. school f~cil1tje. on $ugarloaf Key into _
reqional sduoational o.n~.r: and
WMtREAS I I':>CA ",ishes to .ooapt t:he School Board'. ofter of
..ttlam.nt; and
WKER$A$, DCA 1. authQrized bY &380,032, ~.a. $~a~, to enter
J.T'ltc) an agt'eemant .....i to any landowner, d,veloper or at.her
gov..ronent.al aq.ncy a~ 'IIIay be Mt~Cie!ie;an' to effectuate the
provi.~ons and PUrpClS8S of cn~pt.Qr 380, 1'lQ1:'1.<18 statute., or any
related rulei and
HOW, THtREF"ORE I i.n con~~l'let'ati.{,n or the t.rms and oondit~ons
--- .ot. tct'tl'J ruu".aft.er, t.he partJ.e. h.l'liI'tCl a.free au fOU,o......,
1. ije;rq~.tUa~~pn~, The 1:'~,rele~t..tion$ .at fort" above ars
~nc~rporat~d herein and are essential elame"t. hereof.
2
//
'-....
FROM
BIG PINE NEIGHBORHOND CHARTE
FAX NO. :3058721266
Apr. 06 2007 08:59AM P9
n6i~2/0n 16:12 FAX ~~9i536
..'
PL.-\~:\ J NG I SPT.
... ... . - ..-.
.@04
'--.
2. ReaciG.$lCn OJ. D,~e~9'Pm,mt Q,;,de,.,(.. The School aoard hereby
a'bllnd.Qna the develop~C!!nt or<3er that is tn. 5uhje.:t of the above'"
"-
eaptionad appeal, Bnd the se~eol Board and O=A her.~y requ..t th~t
HOhrOft Co~nty ~e6c~nd R..olution 4a2~1997..
,. DiG~~&.l ~f T~is ~rp~.9oioa. The Sch~ol S~ard a"d~th.
CQunty h.~ohy r~que&t that the Florid. Li,nQ .n~ Water Adjudicatory
Coui..j.on ~IiBU. an ordtr of lJi.a=issil', of t.he above-captioned
.c:l%ll1nia.tl'llt~V'e prOQ~eciiJ'l<r af~.r ;-at.itic;!stion of trd.s Settl.".ent
Aqreement. by Mom"Qe CO\JT\t~./ l<itty WaS8el'IllAn and BRF c~?or~tioT\.
.
4. De..l!-~~oem,nt Q: a Sm~1.1.....sC':.bQ$,l,--.,Qn- B~9 E~p. K4;~. DCA a.nd
'-
the SQhool B~ard aqree tb~t ~~valopment of a r~910"al eduoDt1=nal
f.cili~y at SU~arloaf Key an~ d.velOp~ent of . small achoQl on 819 ,
Pine Key $trlkes a r.a.ona~l. ~alance be~w..n protection of ~he Kev
de.r anltl provisi.on of adequate p~.blic .d.uoationlll t"ac;i.lit1es. DCA
and the School 'BQar~ aqree to pr.u8nt th,e following pt"opoaal to the
U.S. F1.h anQ wil411fs Servioe for an~lY8is ot the impact on the
kay 4..1'. It the Service oonfirJl'ls that dev.lopm.n~ of a 81Z1al1
.chool .. desoribed in this Agr..ment will no~ have an .dvars.
i~Dact en the viabi.lity of. the Key deer, DCA 5hall asSi.st tno
..:..,.'.;.',....
.sohcoJ. Beard In ob~a.1.nJ.ng ll1nd devolt.\,",lt"ent aut.hori::at:l.on' for the
small parm.nent ~eheol.
A.
Th. small aehool shell be
TN2 SMALL SCHOOL.
develeped O~ approx1mately 4.~ ecre~ QQn~i8tinq of ~ta 5, 6,
.nd , of Trop1c I.l.~~ Ranoh.~tas on ,i~ Pine ~.Y, pr...n~ly
occupie:d by tne ApQstOl1o Liql'\~h9u.' MissiOn Ch\Jrch.
Oevelcpm~nt of e~e 5~al~ aOhocl Gha11 consi~t et ~enovationof
3
FROM :
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 08:59AM P10
06/22/00 16:12 F.U 2892..:'5;)13
PL.o\.~~ I NG (JEPl.
" fllQ~.
.---........
tne exist,l.ng church buildings and the plac8IQent of nQ so):'".
t.han t.\,IO portables on the s&tle.ll ,.chgol si t.e. aa g.n.rally
....
"
shown on the attach.d s1tl ~l~n. T1e ~o~ulation of ~h. small
4ohool will be limitec1 ~c a 1Ila)(inl\lm of 200 stlJel.nta. only
""
pre-ldneler9arten t,hrowm ..o(m~ qJ:'ade .tu.denta r...UUn; OIJ Biq
Pine J<oy, No...Name I<esy and north \:0 seven Mile a~id;. will
attlnd the small ~ohool.
" FtNC:INO AND SIT!: PP.EPAAA'I'IO~. The 30 I vewetat.ec1
bu.tfer presently
located ~long the western apd
,
.'
louthe;;n
.""-'
property 1 ine of the Inlli' 1 1 sc:hOQl .ite (as .ho",,1'I on t.he
att.ehed ~ite plan) shall n&t he disturbed, and a conservat1on
e....lIn.nt shall be conveyed. by the Sehocl 80ArQ to the lJ. S.
Fish .~o. W ildl its Sat"Vice, the Mor,t'''. County Land Authority,
Qr .i.2XlU.ar ent.ity apPt'Qvecl by DCll' The present.ly elCi8t:inq
ten.ce line. alon; the \IIestarn boundl r:y of the _mall school .it.
.hall 1:;1_ l'\\OVBd tg the eeatern Ilide of the 30' veqetate.d
butte.. The port1o~ of the s~.l~schoOl aite v~ich contains
the 8QhOol build1n;a and th. r.e~.ational tac11iti.~ within
the veqetated huffer as .hown on the attach.~ .1t~ plan may be
t.t\oed [or the ..curi~i' ot tne chUdren. The exiatitlq borrow
pit on ~he small .chool site may be filled.
c. ~CRZlTrONAL AND COMHUN!TY FACILITIES. Reoreational
. lacili~1e5 snall consist of an ele~ent~ry plaY9reun4 and open
Fl.Yti.l~ w~tn1n tha t.~e. 1in..
Tone Bonool Boar. w~ll no'
.
li9ht t~e ree'teational l'acilltie,; 01:' bu:i.J.~ . eottball fi.eld.
,,-.
The SchlJol Soard will limit the UliiHl of the sMall ~chool .ite
4
FROM
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 08:59AM Pii
06122:01'1
16:12 FAX 2892536
-.. .
PLAi'\~I:'-i(:, DEn.
. . .
~ .-
".. .. . - .
~06
'~i
tacil~ti.~ to school related ac~ivities, &n~ will not ent.r.
int.o any int:t!t'local aqr.em~nts aJlowinq use of tha SchOQ,l
tac.il1t..i.elS fet' non-schoel relat..ec1 func:tiona.
,. ~)~~d~~a~~onal F.c~l~tJJuL_~n .!iq r~ne Ke~. Upon the
co~pl.tion of the s~.ll school eM Bi9 ~in. ~eYI the SChoQl Board
....iU elo.e tne ttiSporAry educational faoil.1 ty pre'ent~y .l.oeetecl OM
.i~ Pin. l(c:.y.
Tn. sehool Board will not const.ruct an)' other
p.~en.~~ .~uea~ional faciliti.. on .~q Pin. Xey. The o.part.."t
will not approve temporary tociliti.8
SOhool Board oan d.~onetratQ that:
A. No ad.qu.te c11l..85%'00l\ al"ld ,1.I..ccillted fac:11iti.. are
01\ B1; Pine xey"u.nl... the
.'
-,
aVaila~19 ~t scnool. ~n Sugarloaf Key or oth*r Keys equally
Acca5.ible to Bjg Pin. Xey, and
\......~IIfIlIoopw::.\...,;"....".dro--....... JIMi.... .......,..~~~...............w'olI(..'jJf
PJ. The population of pr.-)dnderqarttm through ..conlS
gX'ade stud..ant.s r.cidinq on Blq pine. Key, No....Na-me. J;ey and north
to S.ven )>1ile aric19~ .~,~e ~u,...ao.&:---'_M.,.",..."
In the ~ that the eoncHtions for place.me.nt cf tellporary
tacil~ti.. ~~ the Bi9 Pine Key .~* ~etl the School BOArd will use
~t$ be.t etfortc to .xp.di~iously develoy eduQational faoiliti.. on
other Keys, ana re~ove the temporary !a~il~~1.$.
6. til!lgi<<nol E~)Jcat.~el'lal .taei11~;,Qs on SVQ'arl c~f 1<ey. The
Schoel Board ""ill Qxpand the S\Hlill"lOae II e~.ntary School and' th..
Suqarloat' Mh1dle Sohool to .oc~lLUYIodatt1 the .Quostion_l n..cis of
'wo.
llJt1.ld.ntrii in the t..ower K.y. t'G\Jion,
'rh.e p~art.rnent ot conuuuni.ty
Att.t~n ~~~~ ..$~6~ th- School Board ~" the ~evalop~.nt ot rei~Qn.l
edugational and recreational f.~ilitie~ at the Suqarloaf .icbocl
f\
FROM
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 09:00AM P12
06/22.'00
16;12 PAX 28925~6
~........ .
PLA~~I:\(. llEPT,
... I. .
III _ ....
f ,.... . " . ..
III I) 7
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'.---.
sit.. Sugarloaf will b. the eduoational and r.creatiQn~l c.~ter
for the Lower Xcya r_qion.
...
A. SHORT-TERM COOPERA~ION. The S~hool 80ard currently
o\Jnc 37 acres on Suqar'l.oaf I<.y and i. in t.he proc... of
l'urchaainq an adcSit1011Al Si~ .cr:.~ ac1j aeent t.o the' e..ite.
Currently, a ~iddle .ehoQ~ 19 op.ra;~inq on the ait. Which the
DepArtment of Education Qonsi.ders overot"owc1ed. $everDl aqinq
portatl1.. elasll rooms 1I\Ulilt a1.0 be taken out ot u.e. The
School Board will conatruct . ~.w .iddle scnoel &djaeant to
· f
t.he existinq &c;:ho~ll and convert t~'H~ tar;:ilitiell c\.l'rrently u..d
as .. rtl i.ddle ~c:hOQl tp an elelDentary school. The plllnned
student pOPUlation tor all 9rade lavela will be 95~.
Recr.lltional t.cil itie. COt'l8~.t.nt with Dapartl'1uiant of
Eclucat.~on r.~i'reme1'lt. w111 be p~.ov1d.d to~ ,,11 stucS.nta,
ineludinra . play;rounc1, JlUlti-u.. pls)'inf field. and a t.rack.
The.a reor.ation&.l fae11iti.. will be av.~,:lable to the
c:cl1nmuni ty.
Total .~uc8tional an~ recreational facilities Ire
"-'
.xp.e~ed to o~cupy up to 14 acres. The undeveloped port~onl
of the approximately 46 acre lit~ t~r the propo..d Suqarlo&t
Key R.9~onal Edueat~onal Ceneer contain hammock of varying
d..9r.~. of qual ity and area& of freshwater wetlands of
ctJ.tterent Bi&.. and quality. The parti.. agree t.hat the
t.cil1tle~ 'hould bo .. compaot a. po.sible to avoid
.
traqmentlltl0t\ ef tha hllft\muck. fu,th.t I lu"qet" area. at high-
qual i ty wet.lands ahculcS he prellE t"V6ci to t.he maximum extent
6
FROM :
BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 09:00AM P13
Oll,'~2..(Jn
16:12 FAX 2~n2J]6
Pl..A~:'\ I ~G Or:PT '. '.
. .
I.. , . _ .
III 0$
, .. ,
;.~.
po..ible, and fillin91 ~here neo.8'&~, should occ~r in 5..11,
,
ililolat..d wGt..la!'ldl and those wetlands eXhipiting atrelitl troll
f\
.xis~1n, deve.lop..~t.
The Department aqr... to u.a its ~eat efforts to al.1lt.
tMe School BoarcJ. 1n the d..velopment ot the suc;rarloat Xey
~.giOftal Zdueational 'a~ility. the Oapartment will not &~~eal
. dev.lop~e"t order iaaued ~y MQnro$ county whigh is
con.i.tent with ths Above d..e~i~t1on cf the ~.gio".l
eciuc.tional center. vhiehallowliI the. fillin; of nO.1I'ore than
,
,
~ aor.. or wetlln4o, .n~ wh1Qh achiev'5 an open ~pac. ratio of
.60 in ilr.a~ designated as henn]\'loc~ hcAtlit.at 1n tne undeveloped
"-" acre~,. .
II. LONeJ...'!'ER.'M COOPEAATtoN. 'I'heichoOl Board A~a OCA will
CQoperatlll t,,, achioye the ')(~anl:lio" of tJ''lILt Suqarloat E1Elmentan'
senocl tQ ..rve the .3.ementary edu~.tional ne"dlli of the Lower
Rey. region.
Plannin; fo~ ~h. Q~an8iQn of Suqarloaf
!lementery will oo~tin~e.
'.
IDt il"~ of Mlreellltnt.
Th ie A9t'.e1'lent contain. the
.n~ire .n~ .xclusive under.tand1nq ftnd aqr..~ant a~onq the parties
and may nQt c. roocU.tieci in any manner except. by an 1n$trunl.n~ ~n
writinq and signed by the part,ie..
8 . &!UJUt~.1 CQAt.1I and Att.Ol:C.Y'...f.Wt6.. :;ach p.~~Y hereto
releas.s the ethe~ trom any and all cla.me or deman~' arilinq out
ot tnlt .~bj.el: pcu."1nJ.t appC!J41.
~ach party shall b.a~ its own c08t.
.
'-.
In~ attorney fees incurred in connection ~itn thi5 p~Qceedin9'
7
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO. :3058721266
Apr. 06 2007 09:00AM P14
r)O:22i(l(J
1~;12 FAX ~892)36
-~ .
PLA:-I:-; I \(, DEI''!' 'r.
... -- :I~
:"1'; . .1...:
~09.
~ , .'~'
'--..- .
i. D~p~icate O~1Q~n~1~. This Aqreement may ~. ekeeuted in
any number of ~riq~n&lsj all of ~hicn evidence on~ hqree.en~, ~d
enly one of which n..d be produeed for lny pu~o.e.
10. ~nforcl~.nt. In the event of a ~r..ch of thi&Aqr..ment
or failura ~o oo=~ly vith any condition of it, the DCA .ay enforce
this Aqre81DAnt .. proviclec:l in 1380.11, 1.'~",.U:B.t",,..
11. i.c.ope Q! Author.! ~y. 'fhic Aqr,eln.nt affeet, the r1qhta
and 01:11 ig.t.ion& of t.heparties under Part II ot Cl\apt.ar 163,.
Chapt..er :l35: IU'ld Part! of Chapter J90, l'"~LL,S'tl.\t.:t .... It i. not
.
intended to in!lu.n~. or dQtermine the .u~hor~ty or deci.ion5 of
any other sta~c O~ local gov8rn~e"t or Iqa~cy in iBsuance of any
--
other PQr~ita or approvals that ~1qht b. r.quired by state law or
local orcUnence.
12. JlU..8 ~,Lf;x.c~tU!tl. Thi. A;1"e8i:Cent Bhall not be etfect.ive
~~t~l ..oh party li;~s and aaknowledge. this Aqra~.nt. The date
of .xeQ\.lt1.on of thi. A;r..ment ahaJ,l be the cSate tn." tn. last.
party li9nl &n~ acknowled;.. this Agretment.
"
"
---..'.
ill
FROM: BIG PINE NEIGHBORHOND CHARTE FAX NO, :3058721266
Apr, 06 2007 09:00AM P15
C16/22:0fl H;12 PilX 2.~!l2!i:JO PL/\:'\,,'I\l; DEPT. ~lO '
!:"... . - ,;'..J ; , 1.\ . . .. ~
, . .
---
!N wtTHES~ WHtUOf I the parties by ftnd throuqh their
~..p.=tivB I.1l'\dal'siqned dull' authori1.ed ropre$JentativEls hav"e
exacut.d thie A9r..~ent on
::rr:~g~:
CAR: 1'H, sq.
STATE or 'LORIO~
COUNTY OF L'EQN if').
The ;'1"8901119' inat1:"\.Un.nt "'~n-.q~~wle.dqe b8fore JIa. this I.;> -
day ot .&IICtI'f'l..~ , 1994, ~y\:c.MJI\SS'~J,{, Esq" attorney fcr~ .
Monro. Oounty School Boare!, pt,,;\'b.tt.-; ..~f ~G School. s.oat"Q. ./shQ
is pa'l:'.C:)Mal1y known to TIle .". .': :.. '... ...:. ~ . J
.. identif1oatiol'l and ~d ~<i.i.~~'~;~~"" ~~ oa~. ~
:. .~N.!I\~.. ia~-;€. ~~JJ--
" Ir~'No SPubllC L
:""~:~;'/"., ...J1~~\~~ ~'-i!leion Expires l~ ~y.'1f (,
"";1 "F,!, Ir:.~.,...,\;
t Ijlllllll\\\\'"
the. c1at." e.nclyear :below writtan.
Wi.tnea..IH
'~_.
BYI
L 0
2740 C.nt.t"View
Tall.hascl., Ft.
ary
Approv.~ as to form and
'l~ .utfi~ie cy:
oI-L~ ~ "/--4
~
STAT! OF FLORrOA
COU'NTY 01" U:ON
) 'fb.
The ~or.c;oin9 instr\u'l'Sl"lt wa. ac:::knQi<ll.d.9~d bQfore me, thil/~ .
day Qt ~~~~ . 1994, by LINDA LOoMIS SHXLLE~, Secretary of
tn. Oepartlllant of COmJrlunity "tt'ai.rs, an aqency of the s':ate of
Flo:"ida, Whe is perllQnall)' known to rae . Q;' w~_ In.-lIi pro6~~tI~
_ __ as 1dentiticat' on and who dX (did not) take
an 'Oath :'
./
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Big Pine Neighborhood Charter SChool Inc.
30220 Overseas HighwaY
Big pine Key, fL 330Q3
Phone: 305-872-U66 Fax: 305-872-U65
A non-profit corporation contracted to provide educational alternatives and parental choice
within a public charter school under the auspices of the Monroe County Board of Education.
TO: Secretary Thomas Pelham
Florida Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Fl32399-2100
RE: Department of Community Affairs
v.
Monroe County School Board, Kitty Wasserman,
BHF Corporation and Monroe County
Case No#:
DOAH Case No#.:
APP-92-061
93-1316
1/24/07
Secretary Pelham:
We the Board Members of the Big Pine Neighborhood Charter School (BPNCS) would dutifully like to
request an expedited hearing of a proposed amendment to the present DCA Settlement Agreement that
governs the provision and range of available public school instructional programming at our facility.
As a provider of public school education in Monroe County through a Charter Contract with the Monroe
County School Board (MCSB) we have been operating for 5 years; and, due to our school's repeatedly
demonstrated success we have recently negotiated a new agreement with the MCSB to expand our
current range of instructional programming so as to provide quality educational alternatives and Public
School Choice to the residents of Monroe County in our locale. This agreement with the MCSB
however is superseded by an original 1994 DCA land use and facility agreement.
In order for the BPNCS to move forward with the demonstrated need for these public school services in
our area we must seek to amend this DCA Settlement Agreement so as to add the language provisions of
the newly negotiated agreement with the MCSB. The MCSB has already endorsed this proposal.
Historically, in 2004, the BPNCS previously successfully petitioned the DCA, MCSB, Monroe BOCC
and the USFW to amend this agreement in concert with our then MCSB Charter Contract when we
added new grades at the small school.
Currently, USFW Vero Beach, who is an interested party to this Settlement Agreement, has been
contacted to provide an opinion as to our proposed project and an official statement of "no-impact to
endangered or threatened indigenous species or critical habitat" should be shortly forthcoming. There
will be no additional bus transportation and no land take involved with this proposal. We will continue
to operate at the current facility with no planned new construction and within the confines of the already
established and fenced property boundary lines.
Pursuant to the Original 1994 Settlement Agreement (modified 1995 and 2004) it is the intention of the
BPNCS to request to specifically modify language in Section 4 Subsection A.
CURRENT 2004 MODIFIED AGREEMENT SECTION 4 SUB SECTION A LANGUAGE
The Big Pine Neighborhood Charter School occupies the small school and buildings located on
approximately 4.5 acres consisting of lots 5, 6, and 7 of Tropic Island Ranchettes on Big Pine Key. The
school's population is limited to 130 students. The school will serve students from pre-kindergarten
through third grade. Monroe County students residing within and south of the City of Marathon may
attend the school.
PROPOSED SECTION 4 SUB SECTION A. 2007 REPLACEMENT LANGUAGE
The Big Pine Neighborhood Charter School occupies the small school and buildings located on
approximately 4.5 acres consisting of lots 5, 6, and 7 of Tropic Island Ranchettes on Big Pine Key. The
school's population is limited to 200 students. The school will serve students from pre-kindergarten
through eighth grade. All students residing within Monroe County may attend the school.
By the granting of this language modification request, the school will be able to meet our community's
desire for an increase in educational programming up to 8th Grade (the school currently stops at 3rd
Grade); it will allow enrollment up to 200 students (this 200 student capacity was previously contained
in the 1994/ 1995 agreements and modified in 2004 to suit our then Charter with the MCSB); and, it
will allow the enrollment of students from within all of Monroe County (in accordance with Public
School Choice Law).
Attached, you will find a ready drafted instrument for your review that meets the necessary language
conditions (same as above) that we are requesting the consideration of.
We thank you in advance for your attention to this matter and for any and all actions taken on our behalf
and the residents of Monroe County. Should you need any further information or need to correspond in
relation this matter, I can be reached directly at 1-612-968-0851 or the email address below.
Sincerely
Tom Forsythe, BPNCS President
Big Pine Neighborhood Charter School
30220 Overseas Highway
Big Pine Key, Fl33040.
Email:
Tforsythe@visi.com
Email cc:
Monroe County School Board Attorney, Dirk Smits
DCA Marathon Planning Manager, Mayte Santamaria
Monroe County Board of County Commissioners, Mayor Mario De Gennaro
"Home of the Big Pine Eagles where the community is enriched one student at a time."
BOARD OF COUNTY COMMISSION
AGENDA ITEM SUMMARY
Meeting Date: 4/18/07 - Key West
Division County Attorney
Bulk Item: Yes
No~
Staff Contact Person: Suzanne A. Hutton
AGENDA ITEM WORDING:
Discussion and direction to Growth Management staff to examine their fee structure for all services
provided by the Division in order to make sure that the fees are commensurate with the costs to the
Division to provide the service.
ITEM BACKGROUND:
As a result of the ever-increasing complexity involved in the receipt and processing of growth
management items at the various stages of the process, County staff is expending many more man hours
for the delivery of services than existed when the present fee structure for services was created. In
order to provide greater quality and efficiency in the services being delivered, Growth Management staff
will be designated to research and gather relevant data to document that the fees being charged for the
service being provided by the County is commensurate with the cost to the County to provide the
service. The data collected will be presented to the Board with a recommendation based upon these
findings.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
N/A
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNTPERMONTH_ Year
APPROVED BY: County Atty ---1L.. OMBlPurchasing _ Risk Management_
DOCUMENTATION:
Included ~
Not Required_
DISPosmON:
AGENDA ITEM #
Revised 2/05
RESOLUTION NO. 389-1005
A RESOLUTION REPEALING RESOLUTION NO. 111-1003. AND
ANY OTHER FEE SCHEDULES INCONSISTENT HEREWITH,
AND AMENDING THE PLANNING AND ENVIRONMENTAL
RESOURCES DEPARTMENT FEE SCHEDULE TO MORE
EFFECfIVELY REPRESENT CURRENT COSTS REQUIRED TO
ADEQUATELY OFFSET THE TRUE COSTS OF PROVIDING
SUCH SERVICE TO THE PARTIES RECEIVING THE BENEFITS
OF THE DEVELOPMENT APPROVAL. AND THUS. FURTHER
REDUCING THE BURDEN CURRENTLY BEING BORNE BY
THE TAXPAYERS AT LARGE; PROVIDING FOR AN
EFFECTIVE DATE OF NOVEMBER 1.1005
WHEREAS, the Monroe County Board of County Commissioners wishes to
provide the citizens of the County with the best possible service in the most cost effective
and reasonable manner; and
WHEREAS, the Board finds that it would be in the best interest of the general
public to charge the true cost for development related services, thereby placing the
buroen of such costs directly upon those parties deriving the benef\t; and,
WHEREAS, the Growth Management Director has demonstrated that the
existing fee schedule does not reflect the true cost of providing the services to the parties
requesting services from the Planning and Environmental Resources Department; and
WHEREAS, the updated fee schedule prepared by the Growth Management
Division for providing these services includes the estimated direct costs and reasonable
indirect costs associated with the review and processing of planning and development
approval applications and site plans, on-site biological reviews, administrative appeals,
and preparation of official documentation verifying existing development rights; and
WHEREAS, after hearing testimony and evidence presented as to the appropriate
fee schedule during a public hearing on October 19, 2005, the Board of County
Commissioners concurs with the recommendations of the Growth Management Director.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY FLORIDA, THAT:
Seetlon 1. Pursuant to Section 9.5-21, the following schedule of fees to be charged by
the Growth Management Division for the filing of land development permits,
land development approvals, land development orders, and appeal
applications and requests for technical services or official letters attesting to
development rights recognized by the County:
P:\Mayra Tezanos\BOCC October 19, 200S\P1anning Fecs\fecresolution.doc
Page 1 00
Alcoholic Beverage AmJlication1
Administrative Appeais'
Administrative Relief
Beneficial Use
Biological Site Visit (per visit)
Boundary Determination
Conditional Use Application, Major1,2,s
Conditional Use, Application, Minor1.2,s
Conditional Use, Minor Deviation
Development Agreement 105
Development of Regional Impactl,s
DOAH Appeals3
Future Land Use Map Amendment - Residential1,2,S
(With Land Use Map Amendment)
Future Land Use Map Amendment - Nonresidential 1 ,2.5
(With Land Use Map Amendment)
Future Land Use Map Amendment - Residential1,2,S
(Without Land Use Map Amendment)
Future Land Use Map Amendment- Nonresidential1,2,S
(Without Land Use Map Amendment)
Habitat Evaluation Index (per hour)
Home Occupation Application
Land Use District Map Amendment -Residential1,2,S
Land Use District Map Amendment - Nonresidential 1.205
LDR or Comprehensive Plan Text Amendment
Letter of Buildability (Current Site Conditions)
Letter of Development Rights Determination
MinOT Conditional- TOR
Minor Conditional- TRE2
NROGO ApplicationS
Platting, 5 lots or lesss
Platting, 6 lots or mores
Pre-application with Letter of Understanding
Pre-application with No Letter of Understanding
Research, pennits and records (per hour)
ROGO Application2,s
ROGO LotIParcel Dedication Letter
Sign Variance
Special Certificate of Appropriateness
Vacation Rental Application
Vacation Rental Renewal
Vacation Rental Manager License Fee
V Briance, Planning Commission 1.2
Variance, Planning Directo~.4
Vested Rights Determination
Waiver, Planning Directo?
P:\Mayra Tezanos\BOCC October 19, 2OOS\P1uning Feea\feeraolutiOll.doc
Page 2 on
$ 1,140.00
950.00
760.00
1,300.00
260.00
1,090.00
6,020.00
4,570.00
320.00
8,830.00
9,970.00
570.00
3,940.00
4,950.00
3,010.00
4,020.00
60.00
310.00
2,940.00
3,970.00
2,270.00
850.00
1,620.00
420.00
570.00
590.00
1,660.00
3,100.00
620.00
270.00
50.00
430.00
210.00
920.00
200.00
390.00
100.00
40.00
1,060.00
650.00
850.00
420.00
Wetlands Delineation (per hour)'
60.00
1 Subject to additional fees; $245 for newspaper advertisement and $3 per
property owner notice.
2 No application or other fees for affordable housing projects.
3 Subject to additional charges; payment of half the cost of the hearing officer,
which is $66 per hour. County is charged $132 per hour by OOAH.
4 Subject to additional fee of $3 per property owner notice.
S Subject to technology fee of $20 for records conversion, storage, and retrieval.
Section 1. Resolution No. 211-2003 is hereby repealed.
Seetion 3. The effective date of the Fee Schedule shall be November 1, 2005.
Section 4. The Clerk of the Board is hereby directed to forward one (1) certified copy of
this Resolution to the Division of Growth Management.
PASSED AND ADOPTED at a regular meeting of the Board of County
Commissioners of Monroe County, Florida, held on the Igth day of October, 2005.
Mayor Dixie Spear Yea
Mayor Pro Tern Charles "Sonny" McCoy Yea
Commissioner George Neugent Yes
Commissioner David Rice Yea
Commissioner Murray E. Nelson Yea
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUN1Y, FLORIDA
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BY: "~;e; >n ~
Mayor/Chairperson
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~lST+'D'ANNf KOHLAGE, CLERK
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By:.fhaLJQ.~~
Deputy Clerk
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P:\Mayra Tczaoos\BOCC October 19. 200S\Planniug Fees\feeresolution.doc
Pap 3 on
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
4/18/2007 - KW
Division: County Attorney
Bulk Item: Yes ~
No
Staff Contact Person: Natileene W. Cassel
AGENDA ITEM WORDING:
Approval to rescind the Memorandum of Agreement with the City of Key West for employee training
that was approved 2/21/2007 (Item 0-5) and approval of a corrected Memorandum of Agreement
omitting a section that was previously included but is not applicable.
ITEM BACKGROUND:
The South Florida Workforce Investment Board is considering granting funding to Monroe County and
the City of Key West to provide training to employed workers. Entering into this Agreement allows
Monroe County to offer more training topics by facilitating a collaborative effort among entities. Once
eligibility is determined by SFWIB, the County will permit City employees to participate in training
session. Funds spent on training will be reimbursed to the County 100% through SFWIB.
A MOA was approved 2/21/07 that contained a stated "Section 15. Ethics Clause" that is not
applicable. The City of Key West has approved and executed the MOA being presented for approval
which does not contain the Ethics Clause.
PREVIOUS RELEVANT BOCC ACTION:
BOCC granted approval to accept grant award from SFWIB in the amount of$48,502.70 on 12/8/06.
BOCC granted approval to accept grant award from SFWIB in the amount of$288,830.57 on 1/17/07.
BOCC granted approval of Agreements with Corporate Consulting & Coaching, Inc. on 12/8/06 and
1/17/07.
BOCC Bulk approved 2/21/07 which included a stated "Section 15. Ethics Clause"
CONTRACT/AGREEMENT CHANGES: Omitts the Section 15. Ethics Clause
STAFF RECOMMENDATIONS: Approval.
TOTAL COST:
$86.285.55
BUDGETED: Yes
No X
COST TO COUNTY: $86.285.55 - To be reimbursed 100% from South Florida Workforce
Investment Board
REVENUE PRODUCING: Yes No-X.
AMOUNT PER MONTH
YEAR
APPROVED BY: County Atty ~ OMBlPurchasing _
Risk Management _
DOCUMENTATION:
Included xxx
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 8/06
MEMORANDUM OF AGREEMENT
FOR TRAINING BETWEEN MONROE COUNTY
AND THE CITY OF KEY WEST
This Memorandum of Agreement is entered into by and between the City of Key West
(hereinafter the "City"), and the Monroe County Board of County Commissioners
(hereinafter "County") on this _day of , 2007.
WHEREAS, the parties may enter into Agreements pursuant to section
163.01(4), Florida Statutes; and
WHEREAS, the County has entered into an Agreement with Corporate
Consulting & Coaching, Inc. (hereinafter "C,C,&C"), in order to obtain training services
for County's employees; and
WHEREAS, the City also desires to obtain training services for certain City
employees; and
WHEREAS, the County intends to enter into an Agreement with South Florida
Workforce Investment Board (hereinafter "SFWIB") for reimbursement of the cost of
training for employees of the County as well as employees of the City; and
WHEREAS, The Youth Co-Op, Inc is the provider and operator of South Florida
Workforce One Stop Career Centers in Monroe County that receives funding directly
from SFWIB, and
WHEREAS, the parties desire to enter into a Memorandum of Agreement in
order to establish the terms and conditions whereby employees of the City can obtain
training pursuant to the County's Agreement with C,C,&C.
NOW, THEREFORE, the parties to this Memorandum of Agreement agree as
follows:
1. AVAILABILITY OF TRAINING. The County has entered into an Agreement
with C,C,&C to provide training of County and City employees. The training is provided
with the understanding that SFWIB will reimburse County for the cost of the training.
County wishes to make training available to City employees if County is approved for
reimbursement.
2. ELIGIBILITY. The eligibility of City employees to attend the training will be
determined by SFWIB, and not by County and will be available to City employees only
after verification of reimbursement approval by SFWIB to County for said training. After
eligibility has been determined SFWIB will advise the City which employees are eligible.
The City expressly agrees herein to furnish the County with a list of City employees
desiring to obtain training pursuant to the County's Agreement with C,C,&C. The County
1
expressly agrees herein to permit eligible employees of the City to attend, and otherwise
participate in, training sessions conducted pursuant to the County's Agreement with
C,C,&C limited only by reimbursement and eligibility requirements.
3. NO TRAINING PRIOR TO APPROVAL FOR REIMBURSEMENT. The
City expressly agrees that no training of its employees shall take place until after the
SFWm has approved the reimbursement to County of the amount not to exceed
$86,285.55 to be paid to C,C,&C for the training of City employees. City expressly
agrees to verify with C,C,&C, and the County that reimbursement to County for City
employees has been approved by SFWm prior to enrolling City employees in the
training.
4. AVAILABILITY OF TRAINING. City expressly agrees that if reimbursement
from SFWm is not approved or is partially approved, nothing herein shall obligate
County to provide City employees with the training. City expressly agrees that County
employees shall have priority for training over City employees, and the number of City
employees to be trained depends on solely on the available reimbursement.
5. RECORDS - ACCESS AND AUDITS. Both Parties shall maintain adequate
and complete records for a period of four years after termination ofthis Agreement. Each
Party, its officers, employees, agents and contractors shall have access to the other
Party's books, records, and documents related to this Agreement upon request. The
access to and inspection of such books, records, and documents by the Parties shall occur
at any reasonable time.
6. RELATIONSHIP OF PARTIES. The Parties are independent of each other and
shall at no time be legally responsible for any negligence on the part of the other Party, its
employees, agents or volunteers resulting in either bodily or personal injury or property
damage to any individual, property or corporation.
7. T AXES. The Parties are not subject to taxes and assessments.
8. INSURANCE. The parties to this agreement stipulate that each is a
governmental agency as defined by Florida Statutes and represents to the other that it has
purchased suitable Public Liability, Vehicle Liability, and Workers' Compensation
insurance, or is self-insured, in amounts adequate to respond to any and all claims under
federal or state actions for civil rights violations, which are not limited by Florida
Statutes Section 768.28 and Chapter 440, as well as any and all claims within the
limitations of Florida Statutes Section 768.28 and Chapter 440, as well as any and all
claims within the limitations of Florida Statutes arising out of the activities governed by
this agreement.
To the extent allowed by law, each party shall be responsible for any acts of negligence
on the part of its employees, agents, contractors, and subcontractors and shall defend,
indemnify and hold the other party harmless from all claims arising out of such actions.
2
Each party agrees to keep in full force and effect the required insurance coverage during
the term of this Agreement. If the insurance policies originally purchased which meet the
requirements of this agreement are canceled, terminated or reduced in coverage, then the
respective party must immediately substitute complying policies so that no gap in
coverage occurs. Copies of current policy certificates shall be filed with the Other Party
whenever acquired or amended.
9. HOLD HARMLESS. To the extent allowed by law, the COUNTY is liable for
and must fully defend, release, discharge, indemnify and hold harmless the CITY, its
officers and employees, agents and contractors, from and against any and all claims,
demands, causes of action, losses, costs and expenses of whatever type - including
investigation and witness costs and expenses and attorneys' fees and costs - that arise out
of or are attributable to the COUNTY's operations on the premises except for those
claims, demands, damages, liabilities, actions, causes of action, losses, costs and
expenses that are the result of the sole negligence of the CITY. COUNTY does not
waive any of its sovereign immunity rights including but not limited to those expressed in
Section 768.28, Florida Statutes.
To the extent allowed by law, the CITY is liable for and must fully defend, release,
discharge, indemnify and hold harmless the COUNTY, its officers and employees, agents
and contractors, from and against any and all claims, demands, causes of action, losses,
costs and expenses of whatever type - including investigation and witness costs and
expenses and attorneys' fees and costs - that arise out of or are attributable to the CITY's
operations on the premises except for those claims, demands, damages, liabilities,
actions, causes of action, losses, costs and expenses that are the result of the sole
negligence of the COUNTY. CITY does not waive any of its sovereign immunity rights
including but not limited to those expressed in Section 768.28, Florida Statutes.
10. NON-DISCRIMINATION. The CITY and the COUNTY, each for itself, its
personal representatives, successors in interest, and assigns, as a part of the consideration
hereof, does hereby covenant and agree that no person on the grounds of race, color, or
national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of premises or in the contracting for
improvements to the premises.
COUNTY and CITY agree that there will be no discrimination against any person, and it
is expressly understood that upon a determination by a court of competent jurisdiction
that discrimination has occurred, this Agreement automatically terminates without any
further action on the part of any party, effective the date of the court order. County and
City agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1) Title
VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the
basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972,
as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on
the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s.
794), which prohibits discrimination on the basis of handicaps; 4) The Age
3
Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits
discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972
(PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6)
The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (pL 91-616), as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523
and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of
alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42
use s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing
of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of
disability; 10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the
bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation,
gender identity or expression, familial status or age; and 11) any other nondiscrimination
provisions in any Federal or state statutes which may apply to the parties to, or the
subject matter of, this Agreement.
II. ASSIGNMENT. The COUNTY may not assign this Agreement or assign or
subcontract any of its obligations under this Agreement without the approval of the
CITY. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of the CITY and the COUNTY.
12. SUBORDINATION. This Agreement is subordinate to the laws and regulations
of the United States, the State of Florida, Monroe County and the City of Key West,
whether in effect on commencement ofthis Agreement or adopted after that date.
13. INCONSISTENCY. If any item, condition or obligation of this Agreement is in
conflict with other items in this Agreement, the inconsistencies shall be construed so as to
give meaning to those terms which limit the County's responsibility and liability.
14. GOVERNING LAWSNENUE. This Agreement is governed by the laws of the
State of Florida and the United States. Venue for any dispute arising under this
Agreement must be in Monroe County, Florida. In the event of any litigation, the
prevailing party is entitled to a reasonable attorney's fee and costs.
15. CONSTRUCTION. This Agreement has been carefully reviewed by the CITY
and the COUNTY. Therefore, this Agreement is not to be construed against any party on
the basis of authorship.
16. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent
by certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
CITY:
City Manager
525 Angela Street
Key West, FL 33040
4
17. FULL UNDERSTANDING. This Agreement is the parties' final mutual
understanding. It replaces any earlier agreements or understandings, whether written or
oral. This Agreement cannot be modified or replaced except by another written and
signed agreement.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
by its duly authorized representative.
IN WITNESS WHEREOF, the parties have made their agreement on the date first
writt-enabp~ve.
,\_"J1}'-'"
CITY OF KEY WEST
ATTEST:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
Title: Clerk of Court
Mario Di Gennaro, Mayor
~b
l'
MONROE COUNTY ATTORNEY
PR VEO AS TO F"WM'
))C~
NA ILEENE W CASSEL
SSISTrT COUNTY ATTORNEY
Date -/1- /) ~
5
C l~ d~ 1<1~)
south flor}da
(\" i
SECTION 3: TRAINING PROGRAM BUDGET
Category I Grant Request I Employer Match I Total
1 Trainee Wages & Benefits (see attached list of employees) $ - $ -
Facility Usage N/A N1A
$ -
2 Training Equipment Purchase $ -
3
a City of Key Wast supervisors ($22.63 plhr x 3Q hs. Of tmg. '" $678.90)( 40% $ -
b benefits = $271.56 = $95046)( 31 supervisors) $29,464.26 $ 29,464.28
c City of Kay Wast employees (S17.62 x 9 hs. Oftmg. = $15858)( 40% $57,057.00 $ 57,057.00
d benefits = $63.43= $222.01x 257 employees) $ -
.. Travel, Food, & Lodging
a N1A $ -
b $ -
c $ -
d $ -
5 Instructor WageslTuition
a Supervisory Training (31 supervisors); leadership Development $3,600.00 $ 3,600.00
b Communication Skills & Strategies $ 3,600.00 $ 3,600.00
c Team Building $ 3,600.00 $ 3,600.00
d Situational Leadership $ 3,600.00 $ 3.600.00
e Enployee Training (257 employees). Communication Skills $23,000.00 $ 23,000.00
f Time Management $23,000.00 $ 23,000.00
g Customer Relations $23.000.00 $ 23,000.00
6 Cun1culum Development
a $80 00 pItopic)( 7 topics $ 560.00 $ 560.00
b $ -
c $ -
d $ -
7 Materials. Supplies, & Textbooks
a Supervisory Training (31 supervisors) - Communication Skills $ 625.00 $ 825.00
b Leadership Development $ 5.00 $ 5.00
c Team Building $ 5.00 $ 5.00
d Situational Leadership ($45 each handbooK) $1,395.00 $ 1,395.00
e Employee Training (257 employees) Communication Skills - hlfndouts $38.55 $ 38.55
f Time Mngt- handouts. Customer Relations - handouts $128 50 ea topic $ -
8
a (257 employees @10handouts pItopiC)( $.05 plcopy) $ 257.00 $ 257.00
b $ -
c $ -
d $ -
9 Sub Total
10 Indirect Costs $ -
a Relevant description $ -
b S -
11 TOTALS $ 86,285.55 $ 86,521.26 $ 1n,806.81
MEMORANDUM OF AGREEMENT
FOR TRAINING BETWEEN MONROE COUNTY
AND THE CITY OF KEY WEST
Boce-
vr-rennJ
aJd)O~ 0-5'
This Memorandum of Agreement is entered into by and between the City of Key West
(hereinafter the "City"), and the Monroe County Board of County Commissioners
(hereinafter "County") on this _day of , 2007.
WHEREAS, the parties may enter into Agreements pursuant to section
163.01(4), Florida Statutes; and
WHEREAS, the County has entered into an Agreement with Corporate
Consulting & Coaching, Inc. (hereinafter "C,C,&C"), in order to obtain training services
for County's employees; and
WHEREAS, the City also desires to obtain training services for certain City
employees; and
WHEREAS, the County intends to enter into an Agreement with South Florida
Workforce Investment Board (hereinafter "SFWIB") for reimbursement of the cost of
training for employees of the County as well as employees ofthe City; and
WHEREAS, The Youth Co-Op, Inc is the provider and operator of South Florida
Workforce One Stop Career Centers in Monroe County that receives funding directly
from SFWm, and
WHEREAS, the parties desire to enter into a Memorandum of Agreement in
order to establish the terms and conditions whereby employees of the City can obtain
training pursuant to the County's Agreement with C,C,&C.
NOW, THEREFORE, the parties to this Memorandum of Agreement agree as
follows:
1. AVAILABILITY OF TRAINING. The County has entered into an Agreement
with C,C,&C to provide training of County and City employees. The training is provided
with the understanding that SFWIB will reimburse County for the cost of the training.
County wishes to make training available to City employees if County is approved for
reimbursement.
2. ELIGIBILITY. The eligibility of City employees to attend the training will be
determined by SFWIB, and not by County and will be available to City employees only
after verification of reimbursement approval by SFWIB to County for said training. After
eligibility has been determined SFWm will advise the City which employees are eligible.
The City expressly agrees herein to furnish the County with a list of City employees
desiring to obtain training pursuant to the County's Agreement with C,C,&C. The County
1
expressly agrees herein to permit eligible employees of the City to attend, and otherwise
participate in, training sessions conducted pursuant to the County's Agreement with
C,C,&C limited only by reimbursement and eligibility requirements.
3. NO TRAINING PRIOR TO APPROVAL FOR REIMBURSEMENT. The
City expressly agrees that no training of its employees shall take place until after the
SFWIB has approved the reimbursement to County of the amount not to exceed
$86,285.55 to be paid to C,C,&C for the training of City employees. City expressly
agrees to verify with C,C,&C, and the County that reimbursement to County for City
employees has been approved by SFWIB prior to enrolling City employees in the
training.
4. AVAILABILITY OF TRAINING. City expressly agrees that if reimbursement
from SFWIB is not approved or is partially approved, nothing herein shall obligate
County to provide City employees with the training. City expressly agrees that County
employees shall have priority for training over City employees, and the number of City
employees to be trained depends on solely on the available reimbursement.
5. RECORDS - ACCESS AND AUDITS. Both Parties shall maintain adequate
and complete records for a period of four years after termination of this Agreement. Each
Party, its officers, employees, agents and contractors shall have access to the other
Party's books, records, and documents related to this Agreement upon request. The
access to and inspection of such books, records, and documents by the Parties shall occur
at any reasonable time.
6. RELA TIONSIDP OF PARTIES. The Parties are independent of each other and
shall at no time be legally responsible for any negligence on the part of the other Party, its
employees, agents or volunteers resulting in either bodily or personal injury or property
damage to any individual, property or corporation.
7. TAXES. The Parties are not subject to taxes and assessments.
8. INSURANCE. The parties to this agreement stipulate that each is a
governmental agency as defined by Florida Statutes and represents to the other that it has
purchased suitable Public Liability, Vehicle Liability, and Workers' Compensation
insurance, or is self-insured, in amounts adequate to respond to any and all claims under
federal or state actions for civil rights violations, which are not limited by Florida
Statutes Section 768.28 and Chapter 440, as well as any and all claims within the
limitations of Florida Statutes Section 768.28 and Chapter 440, as well as any and all
claims within the limitations of Florida Statutes arising out of the activities governed by
this agreement.
To the extent allowed by law, each party shall be responsible for any acts of negligence
on the part of its employees, agents, contractors, and subcontractors and shall defend,
indemnify and hold the other party harmless from all claims arising out of such actions.
2
Each party agrees to keep in full force and effect the required insurance coverage during
the term of this Agreement. If the insurance policies originally purchased which meet the
requirements of this agreement are canceled, terminated or reduced in coverage, then the
respective party must immediately substitute complying policies so that no gap in
coverage occurs. Copies of current policy certificates shall be filed with the Other Party
whenever acquired or amended.
9. HOLD HARMLESS. To the extent allowed by law, the COUNTY is liable for
and must fully defend, release, discharge, indemnify and hold hannless the CITY, its
officers and employees, agents and contractors, from and against any and all claims,
demands, causes of action, losses, costs and expenses of whatever type - including
investigation and witness costs and expenses and attorneys' fees and costs - that arise out
of or are attributable to the COUNTY's operations on the premises except for those
claims, demands, damages, liabilities, actions, causes of action, losses, costs and
expenses that are the result of the sole negligence of the CITY. COUNTY does not
waive any of its sovereign immunity rights including but not limited to those expressed in
Section 768.28, Florida Statutes.
To the extent allowed by law, the CITY is liable for and must fully defend, release,
discharge, indemnify and hold harmless the COUNTY, its officers and employees, agents
and contractors, from and against any and all claims, demands, causes of action, losses,
costs and expenses of whatever type - including investigation and witness costs and
expenses and attorneys' fees and costs - that arise out of or are attributable to the CITY's
operations on the premises except for those claims, demands, damages, liabilities,
actions, causes of action, losses, costs and expenses that are the result of the sole
negligence of the COUNTY. CITY does not waive any of its sovereign immunity rights
including but not limited to those expressed in Section 768.28, Florida Statutes.
10. NON-DISCRIMINATION. The CITY and the COUNTY, each for itself, its
personal representatives, successors in interest, and assigns, as a part of the consideration
hereof, does hereby covenant and agree that no person on the grounds ofrace, color, or
national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of premises or in the contracting for
improvements to the premises.
COUNTY and CITY agree that there will be no discrimination against any person, and it
is expressly understood that upon a determination by a court of competent jurisdiction
that discrimination has occurred, this Agreement automatically terminates without any
further action on the part of any party, effective the date of the court order. County and
City agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1) Title
VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the
basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972,
as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on
the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s.
794), which prohibits discrimination on the basis of handicaps; 4) The Age
3
Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits
discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972
(PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6)
The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523
and 527 (42 use ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of
alcohol and drug abuse patent records; 8) Title VIII ofthe Civil Rights Act of 1968 (42
USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing
of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of
disability; 10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the
bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation,
gender identity or expression, familial status or age; and 11) any other nondiscrimination
provisions in any Federal or state statutes which may apply to the parties to, or the
subject matter of, this Agreement.
11. ASSIGNMENT. The COUNTY may not assign this Agreement or assign or
subcontract any of its obligations under this Agreement without the approval of the
CITY. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of the CITY and the COUNTY.
12. SUBORDINATION. This Agreement is subordinate to the laws and regulations
of the United States, the State of Florida, Monroe County and the City of Key West,
whether in effect on commencement of this Agreement or adopted after that date.
13. INCONSISTENCY. If any item, condition or obligation of this Agreement is in
conflict with other items in this Agreement, the inconsistencies shall be construed so as to
give meaning to those terms which limit the County's responsibility and liability.
14. GOVERNING LA WSIVENUE. This Agreement is governed by the laws of the
State of Florida and the United States. Venue for any dispute arising under this
Agreement must be in Monroe County, Florida. In the event of any litigation, the
prevailing party is entitled to a reasonable attorney's fee and costs.
15. ETmCS CLAUSE. CITY warrants that it has not employed, retained or
otherwise had act on its behalf any former County officer or employee subject to the
prohibition of Section 2 of ordinance No. 010-1990 or any County officer or employee in
violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this
provision, the COUNTY may, in its discretion, terminate this Lease without liability and
may also, in its discretion, deduct from the Lease or purchase price, or otherwise recover,
the full amount of any fee, commission, percentage, gift or consideration paid to the
former County officer or employee.
4
16. CONSTRUCTION. This Agreement has been carefully reviewed by the CITY
and the COUNTY. Therefore, this Agreement is not to be construed against any party on
the basis of authorship.
17. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by
certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
CITY:
City Manager
525 Angela Street
Key West, FL 33040
18. FULL UNDERSTANDING. This Agreement is the parties' final mutual
understanding. It replaces any earlier agreements or understandings, whether written or
oral. This Agreement cannot be modified or replaced except by another written and
signed agreement.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
by its duly authorized representative.
IN WITNESS WHEREOF, the parties have made their agreement on the date first
written above.
ATTEST:
CITY OF KEY WEST
City Clerk
Morgan McPherson, Mayor
ATTEST:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
Title: Clerk of Court
Mario Di Gennaro, Mayor
E CO' ,. .-,' ^.,...,.."ONEY
MONROv~ A
-PJ~'~_'::~'__'-"~~.~
~''':D,;,.;''!.EY
AS~"; . , . . ....
" ' "
Date_._~3fa
5
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 4/18/07
Division: County Attornev
BulkItem: Yes ~ No
Staff Contact Person/Phone #: Bob Shillinger 3470
AGENDA ITEM WORDING: Approval of resolution endorsing the candidacy of the Honorable
Sandra E. Taylor, Chief Judge of the Circuit Court for the 16th Judicial Circuit, to :fill a vacancy on the
Third District Court of Appeals.
ITEM BACKGROUND: The Third DCA has appellate jurisdiction over cases arising in Monroe and
Miami-Dade counties. In its 50 year history, no Keys resident has been appointed to serve as ajudge on
that panel. There is a vacancy on the Third DCA. Chief Judge Sandra Taylor has submitted her
application for consideration to fill that vacancy. The resolution urges the Judicial Nominating
Commission for the Third DCA to include Judge Taylor among the candidates it recommends to the
Governor for that appointment as well as urges the Governor to appoint Judge Taylor.
PREVIOUS RELEVANT BOCC ACTION: none
CONTRACT/AGREEMENT CHANGES: nla
STAFF RECOMMENDA nONS: ApprovaL
TOTAL COST:
none
BUDGETED: nla
COST TO COUNTY:
none
SOURCE OF FUNDS: nla
REVENUEPRODUCING:nla ~
0/
APPROVED BY: County Atty ~ OMBlPurchasing_
Risk Management _
DOCUMENTA TION:
Included xx
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised I] /06
RESOLUTION NO.
- 2007
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
ENDORSING THE CANDIDACY OF THE HONORABLE
SANDRA E. TAYLOR, CHIEF JUDGE OF THE CIRCillT
COURT FOR THE 16TH JUDICIAL CIRCUIT, FOR THE
VACANT POSITION ON THE THIRD DISTRICT COURT
OF APPEALS.
WHEREAS, Monroe County is one of only two counties within the jurisdiction of
the Third District Court of Appeals; and
WHEREAS, since its creation in 1957, no lawyer from Monroe County has ever
been appointed to serve as judge on the Third District Court of Appeals; and
WHEREAS, it is past time to correct this injustice, be it intentional or through
oversight; and
WHEREAS, due to the unique characteristics of the Keys and the unique nature
of legal issues facing the Keys and its citizens, many of which are cutting-edge issues
within Florida, particularly in the area of land use, affordable housing, and related issues,
it is imperative that those who sit in judgment over Keys cases have an informed
appreciation for both the Keys and its inhabitants; and
WHEREAS, the Honorable Sandra E. Taylor, Chief Judge of the Circuit Court for
the 16th Judicial Circuit in and for Monroe County, has served the citizens of Monroe
County with distinction for over 20 years as a County Court and Circuit Court Judge; and
WHEREAS, the Honorable Sandra E. Taylor has submitted her application to
fulfill a vacancy currently existing on the Third District Court of Appeals; and
WHEREAS, the Honorable Sandra E. Taylor is well qualified to serve on the
Third District Court of Appeals;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, THAT:
1. The Judicial Nominating Commission for the Third District Court of Appeals
is respectfully requested to recommend the Honorable Sandra E. Taylor to the
Governor for appointment to fill the vacancy on the Third District Court of
Appeals; and
2. The Governor is respectfully requested to reject in its entirety any slate of
candidates to fill the current vacancy on the Third District Court of Appeals
that might be submitted by the Judicial Nominating Commission of the Third
District Court of Appeals if that slate that does not include the Honorable
Sandra E. Taylor; and
- 1 -
3, The Governor is respectfully requested to appoint the Honorable Sandra E.
Taylor to fill the current vacancy on the Third District Court of Appeals; and
4. The Clerk of the Court for Monroe County is directed to immediately transmit
this Resolution forthwith to the Governor and to the Judicial Nominating
Commission for the Third District Court of Appeals.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 18th day of April, 2007.
Mayor Mario Di Gennaro
Mayor Pro Tem Dixie Spehar
Commissioner George Neugent
Commissioner Charles McCoy
Commissioner Sylvia Murphy
(Seal)
ATTEST
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
By:
By:
Mayor Mario Di Gennaro
Deputy Clerk
C '!\!T~f!>: t_!,~ u_
ASSIS r.!\,NT COUNTY ATTORNEY
Date -4- - I ~ ~ '0 =f
-2-
MOBILE HOME PARK PROTECTION ORDINANCE
~ 'OD /'{'f' .
~
ORDINANCE NO.
-2007
AN ORDINANCE OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS CREATING RULES,
REGULATIONS, CONDmONS AND CRITERIA FOR THE
TRANSFER OF ROGO EXEMPT UNITS FROM MOBILE
HOME PARKS BY CREATING SECTION 9.5-266.1
TRANSFER OF ROGO EXEMPT UNITS FROM MOBILE
HOME PARKS; PROVIDING FOR SEVERABILITY AND
REPEAL OF INCONSISTENT PROVISIONS; PROVIDING
FOR EFFECTIVE DATE; PROVIDING FOR
INCORPORATION IN THE MONROE COUNTY CODE OF
ORDINANCES.
WHEREAS, the Monroe County Year 2010 Comprehensive Plan Technical
Document Housing Element 7.0 projected the number of housing units needed for resident
households of Monroe County by 2002 according to various income groups as 7,093
dwelling units for "Very Low" income households, 5,320 dwelling units for "Low" income
households, and an additional 5,528 dwelling units needed for "Moderate" income
households (p. 7-24); and
WHEREAS, the Monroe County Year 2010 Comprehensive Plan Technical
Document Housing Element 7.0 also states that the "public sector can provide for a variety
of densities which can increQSe the flexibility of the private sector to provide affordable
housing in more situations" (p. 7-33); and
WHEREAS, the Monroe County Year 2010 Comprehensive Plan Technical
Document Housing Element 7.0 confirms that "[l]and prices in Monroe County represent a
higher proportion of total development costs than in any other part of Florida" (p. 7-33);
and
WHEREAS, the Monroe County Year 2010 Comprehensive Plan Policy 601.1.12
directs the County to "adopt Land Development Regulations which may include density
bonuses, impact fee waiver programs, and other possible regulations to encourage
affordable housing"; and
WHEREAS, the Monroe County Year 2010 Comprehensive Plan Objective 601.2
directs the County to "adopt programs and policies to encourage housing of various types,
sizes and price ranges to meet the demands of current and future residents"; and
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WHEREAS, the Monroe County Year 2010 Comprehensive Plan Objective 601.6
directs the County to "formulate housing implementation programs corresponding to each
of the specific objectives defined within this element, including:
2. incentive programs, to be implemented in conjunction with the Permit
Allocation System, to promote the development of affordable and elderly
housing"; and
WHEREAS, the Board of County Commissioners makes the following findings of
fact:
1. Monroe County and its municipalities have a mutual interest in preserving and
providing affordable housing countywide.
2. According to the Florida Housing Data Clearinghouse, mobile homes
comprise approximately 17% of the permanent housing units in the Florida
Keys.
3. According to the Florida Housing Data Clearinghouse, the average price of a
mobile horne is approximately $303,000.
4. According to the Florida Housing Data Clearinghouse, 29% of all households
. in Monroe County are "cost-burdened" (i.e. pay more than 30% of income for
rent or mortgage costs).
5. According to the Florida Housing Data Clearinghouse, the median sales price
for a single family home in 2005 was $735,000.
6. 42% of non-waterfront homes currently are valued at prices accessible to
moderate and median-income residents.
7. Mobile homes represent the least expensive housing type and therefore the
housing type most available to the critical workforce and County residents at
median and moderate income levels.
8. The implementation of this ordinance will protect this segment of the housing
stock available to moderate and median-income residents and critical
workforce.
9. The amendments proposed herein permit replacement of existing mobile
homes and preservation of permitted mobile home uses consistent with
existing safety and building code regulations.
10. The amendments set forth herein will facilitate and encourage development
that includes a range of housing opportunities through a variety of residential
types, increase affordable housing opportunities within the County, and
stimulate the provision and preservation of affordable housing within the
County.
11. There is limited land area suitable for residential development remaining in the
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County.
12. Due to state-imposed requirements related to hurricane evacuation standards,
there are a limited number of residential building permits available on an
annual basis.
13. The unmitigated development of market-rate housing and conversion from
existing mobile home use would exacerbate affordable housing options for the
County by cousuming the limited remaining developable lands in the Keys and
the limited number of development permits available.
14. All set-asides for existing mobile home development that are otherwise
amenable from established uses is in the public interest in preserving the
County's existing affordable housing stock.
15. There is a current unmet need of about 7,317 affordable units in the County.
16. These amendments to the land development regulations specifically further
F.S. Chapter 163.3202(3) by implementing innovative land development
regulation provisions such as transfer of development rights, incentive and
inclusionary housing.
17. The amendments to the land development regulations are necessary to ensure
that, despite the limited availability of developable lands, the County's
existing and future housing stock includes adequate affordable housing
opportunities.
18. The proposed amendments to the Land Development Regulations are
consistent with and further goals, objectives, and policies of the Year 2010
Comprehensive Plan.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:, That the preceding
findings support its decision to approve the amendments to the Land Development
Regulations of the Monroe County Code as provided herein:
Section 1.
Create New LDR Section 9.5-266.1 as follows:
SECTION 9.5-266.1 Transfer of ROGO Exempt Units from Mobile Home Parks
Transfer of ROGO Exempt (TRE) units from lawfully established mobile home units
may be transferred off-site from a Mobile Homeffrailer park under the following
conditions:
a) The sender units are not subject to affordability-related deed restrictions imposed
pursuant or arising under Section 9.5-266;
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b) The sender site may only be redeveloped at the current permitted density, excess units
will be donated to county for contribution to the market rate pool;
c) The transfer arises from a development or transfer agreement with Monroe County that
specifically sets forth the number of market rate dwelling units to be transferred and
which establishes deed-restricted affordable and employee housing either at the sender
site or at another site or sites. This subsection establishes no right to transferability absent
an agreement voluntarily reached with Monroe County;
d) The receiver site must be in Tier ill or llIA
e) An amount of affordable housing equal to the units to be transferred will be developed
at the sender site or at another site or sites;
f) The property owner will donate sender site to the county. The County may then lease
the sender site back to owner who will serve as a landlord for the property;
g) The redevelopment of affordable housing sites will be at the following ratio: 25% very
low, 25% low, 25% median, 25% moderate;
h) Lot rents shall be based on rates established by a land trust or another organization
involved with providing affordable housing and approved by the HOCC;
i) Within IO years (or some other date selected by BOCC), all units within the sender site
shall be replaced with new units that meet hurricane standards established by the Florida
Building code;
j) Transfer of TREs to single family units will be on a one to one basis. Transfer to
multi-family development such as condominiums or market rate apartments shall be on a
I for 2 basis; and
k) Transfer ofTREs shall require a major conditional use.
Section 2. Severability.
If any section, paragraph, subdivision, clanse, sentence or provision of this ordinance
shall be adjudged by any court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, invalidate, or nullify the remainder of this ordinance, but the
effect thereof shall be confined to the section, paragraph, subdivision, clause, sentence, or
provision immediately involved in the controversy in which such judgment or decree
shall be rendered.
Section 3. Conf1ictine Provisions.
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In the case of direct conflict between any provision of this ordinance and a portion or
provision of any appropriate federal, state, or County law, rule code or regulation, the
more restrictive shall apply.
Section 4. Transmittal.
This ordinance shall be transmitted by the Planning and Environmental Resources
Department to the Florida Department of Community Affairs to determine the
consistency of this ordinance with the Florida Statutes and as required by F.S. 380.05(6)
and (11).
Section 5. Filin!!:.
This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall
not become effective until a notice is issued by the Department of Community Affairs or
Administration Commission approving the ordinance.
Section 6. Effective Date.
This ordinance shaIl become effective as provided by law and stated above. Where
Comprehensive Plan amendments may be required in order for any part of this ordinance
to be deemed consistent with the Comprehensive Plan, the effective date of such part
shall be as of the effective date of the required Comprehensive Plan amendment and as
otherwise required by law.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the of 2007.
Mayor Mario DiGennaro
Mayor Pro Tern Dixie Spehar
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Sylvia Murphy
(SEAL)
Attest: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
Deputy Clerk
Mayor/Chairperson
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