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Resolution 493-2007 :J: o 0 RESOLUTION NO. 4q3 -2007 z )c> ?:J ("') :~:: 0....-"""- A RESOLUTION BY THE MONROE COUNTY BOARD QIt~~~' COUNTY COMMISSIONERS APPROVING THE REQUEST ~f:: OCEAN SUNRISE ASSOCIATES FOR A DEVELOPMEm:: . AGREEMENT TO DONATE TWO (2) MARKET RATE ROG!,f' / EXEMPTIONS TO MONROE COUNTY; DONATE EIGHT (II) ;,' TRANSIENT RESIDENTIAL ROGO EXEMPTIONS TO MONRcJE COUNTY; DONATE 0.57 ACRES OF LAND TO MONROE COUNTY FOR USE AS OPEN SPACE OR A PASSIVE PARK; AND REDEVELOPMENT ON PROPERTY LEGALLY DESCRIBED AS AMENDED PLAT OF MANDALAY KEY LARGO PB5-25 PART TRACK 5A, MANDALAY, PBI-194, KEY LARGO LOTS 1-8 & 30- 33, PART SQUARE 3 INCLUDING BUT NOT LIMITED TO NE 30' OF THE SW 225' AND SW'L Y 125' X 250" & NW'L Y 95' OF NE'LY 100' OF SW'LY 225'& ADJACENT BAY BOTTOM HAVING REAL ESTATE NUMBERS 00554420.000000, 00554670.000000, 00554700.000000, 00554730.000000, 00554740.000000, & 005549040.000300 LOCATED IN MONROE COUNTY, FLORIDA WHEREAS, during a regularly scheduled public meeting held on November 14, 2007, the Monroe County Board of County Commissioners (BOCe) conducted a review and consideration of a request filed by Ocean Sunrise Associates, for a development agreement pursuant to Sections 101 and 102 of the Monroe County Code; and WHEREAS, during a regularly scheduled meeting held on October 24, 2007, the Monroe County Planning Commission conducted a review and consideration of this same request; and WHEREAS, during a regularly scheduled meeting held on September 24, 2007, the Moruroe County Development Review Committee conducted a review and consideration of this same request; and WHEREAS, the subject property is located at approximate mile marker 97.5 oceanside in Key Largo legally described as Amended Plat of Mandalay Key Largo PB5- 25 Part Track 5A, Mandalay, PBI-194, Key Largo Lots 1-8 & 30-33, Part Square 3 including but not limited to NE 30' of the SW 225' and SW'LY 125' x 250" & NW'LY 95' ofNE'LY 100' ofSW'LY 225'& Adjacent Bay Bottom; and WHEREAS, the BOCC passed Resolution 603-2006 to abandon 10,270 SF of First Street and Resolution 604-2006 to abandon 6,556 SF of Second Street; and WHEREAS, these Resolutions included and approved a maintenance agreement for Second Avenue; and Mandalay Bay Development Agreement Page lof3 .... = = = c- """ z 1-;-: en -0 :J:l: .r- ".I N N '::l 1 WHEREAS, the BOCC was presented with the following information, which by reference is hereby incorporated as part of the record of said hearing: I. Application for a Development Agreement received by Monroe County on August 22, 2007; and 2. Development Agreement received by Monroe County via email on October 4, 2007; and 3. Staff Report by Julianne Thomas, Planner amended as directed during the meeting and dated October 29, 2007; and 4. The sworn testimony of Growth Management Division Staff; and 5. The sworn testimony of the Applicant; and 6. The sworn testimony of the public; and 7. Exhibits provided by the applicant; and 8. Comments by Timothy Thomes, attorney for the applicant; and 9. Comments by the County Attorney Office; and WHEREAS, Monroe County Code (MCC) 9 9.5-266(b) provides inclusionary housing standards which are applicable to development or redevelopment of permanent residential units; and WHEREAS, the applicant relied on representation from staff that this development would not be subject to the inclusionary housing ordinance based on conversations with staff and acceptance and processing of a map amendment in September 2005 which would have been prohibited if the property was subject to inclusionary housing standards pursuant to Resolution 320-2005; and WHEREAS, the BOCC can grant relief from the inclusionary housing standards to any applicant pursuant to MCC 9 9.5-266(b)(3)c; and WHEREAS, the Monroe County Board of County Commissioners makes the following Findings of Fact and Conclusions of Law: 1. Based on MCC 9 9.5-101 the Development Agreement does meet the requirements to allow Monroe Count to enter into a Development Agreement. 2. Based on MCC 99.5-102(a), the BOCC does have the authority to enter into this Development Agreement. 3. Any transfer of transient ROGO exemptions or commercial floor area shall comply with the requirements of the MCC at the time of transfer. 4. Approval of this Development Agreement by the BOCC shall not constitute approval of a specific site plan. Approval of a site plan shall be determined upon submittal of an application for Major Conditional Use Permit approval which would include any variance applications required to be in compliance with land development regulations. Mandalay Bay Development Agreement Page 2 00 NOW THEREFORE, BE IT RESOLVED BY TIlE BOARD OF COUNTY COMMISSIONERS OF MONROI: COUNTY, FLORIDA: SECTION 1: The preceding Findings of Fact and Conclusions of Law are incorporated by reference in support of its decision to APPROVE the request by Ocean Sunrise Associates for a development agreement subject to the conditions in Section 2. SECTION 2. The recommendation for approval is subject to the following conditions: 1. Upon execution of the development agreement, two (2) market rate ROGO exemptions shall be transferred to Monroe County as directed by the Development Agreement. 2. Upon execution of the development agreement, ownership of RE 00554940.000300 shall be transferred to Monroe County as directed by the Development Agreement. 3. Upon execution of the development agreement, eight (8) transient residential ROGO exemptions shall be transferred to Monroe County as directed by the Development Agreement. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the 14th day of November, 2007. Mayor Charles "Sonny" McCoy Mayor Pro Tern Mario DiGennaro Commissioner Dixie Spehar Commissioner George Neugent Commissioner Sylvia J. Murphy Yes Yes Yes Yes Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY: "Sonny" McCoy (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK E1oW.~. ~~~ Deputy Clerk MONROE COUNTY ATTORNEY APPR D AS TO FORM: , Mandalay Bay Development Agreement SUSAN M. IMSLEY A*NT COUNTY ATTORNEY Date ~ ",I""~ I'-t;, ~V Page 3 of3 This instrument prepared by: 2 The Craig Company "' P"O Box 970 4 610 White Street 5 Key West, Florida 33040 6 Parcel LD" Nos": Ocean Sunrise Associates LLC FUE# s 00554420,00554730,00554740,00554700, and 00554670, 00554940-000300 7 8 9 10 II DEVELOPMENT AGREEMENT FOR 12 MANDALA Y BAY DEVELOPMENT 13 (AKA OCEAN SUNRISE ASSOCIATES. LLc) 14 THIS AGREEMENT is entered into by and between Ocean Sunrise Associates LLC, a 15 Florida Limited Liability Corporation (herein, the "Owner"), and Monroe County, a division 16 of the state of Florida (herein, the "County"), pursuant to Sections 95-101 and 9.5- 102 of the 17 County Code, and the Florida Local Government Development Agreement Act, Sections 18 1633220-1633243, Florida Statutes (2004), and is binding on the "Effective Date" set forth 19 herein" 20 WITNESSETH: 21 WHIEREAS, Owner is the owner of approximately 3.29 acres of contiguous uplands 22 plus 0.68 acres submerged land in the corporate limits of the County, now known as Mandalay 23 Resort at Mile Marker 98, Lots 1 and 2, Parcels 1 and 2, Block 4, Mandalay Subdivision, Key 24 Largo, more particularly described in the legal description attached hereto as Exhibit A (herein, 25 the "Property"); and 26 WHEREAS, the County has recognized that there are, existent on the Property, eleven - 1- 109amddal21807 (II) transient ROGO exemptions due to the fact that the County identified that there were eleven 2 (II) licensed recreational vehicles onsite used for transient purposes; and that only three (3) of 3 these units may be used on the property in combination with the proposed twenty-two (22) 4 residential units and proposed restaurant due to the size of the property; and 5 WHJ8:REAS, the Owner relied upon the directions given to it by the County as to the 6 sequence of its applications and submissions for development; and 7 WHEREAS, the Owner has timely filed its applications for development in accordance 8 with those directions prior to the approval of the Inclusionary Housing ordinance; and 9 Wm~REAS, the County and the Owner agree that the Owner has offered the County the 10 eight (8) unused transient ROGO exemption rights to be used for affordable housing applications . 11 and be assigned unique, numeric identifiers for each, pursuant to the appropriate transfer 12 procedure as identified by the County, to be subsequently sponsored by the County at no 13 additional cost to Owner; and 14 WHEREAS, the Owner has leased from the County a portion of Second Avenue 15 adjacent to the property and more specifically described as the easterly ten (10) feet of Second 16 Avenue, Mandalay Subdivision, Key Largo, adjacent to Lot I, Block 4, Plat Book 1-194; and 17 WHEREAS, the Property is currently vacated of residential structures and remains 18 developed with the existing restaurant, commercial and accessory uses including docks, as 19 further described in Section C 3.a of this Agreement; and 20 WHEREAS, redevelopment of the Property provides the opportunity to upgrade the 21 existing facilities, voluntarily contribute to the provision of affordable housing, upgrade and 22 enhance the existing transient facility and amenities, provide on-site wastewater - 2 - treatment that meets 2010 standards, either by advanced wastewater treatment (A WT) or 2 connection to the Key Largo Wastewater Treatment District if available at the time of permit, 3 meet current stormwater retention standards to contribute to the protection of the nearshore 4 waters in the County, assure the improvement of facilities for public access to the waterfront of 5 the Atlantic Ocean, and provide additional benefits to the County as set forth in this Agreement; 6 and 7 wm~REAS, Owner desires to create a residential development on the Property with the 8 facilities, amenities and infrastructure as set forth in this Agreement; and 9 WHEREAS, The County Board of County Commissioners, per Resolution 603-2006, 10 and 604-2006, has approved a request by the Owner to abandon a portion of East First Street and 11 East Second Street adjacent to the Property to allow the rational redevelopment of the Property, 12 and 13 WHEREAS, the proposed redevelopment is permissible and appropriate under the 14 County's Comprehensive Plan Future Land Use designation applicable to the Property, which 15 allows mixed use development along with various types of residential and nonresidential uses; 16 and 17 WHEREAS, the Property is a highly disturbed, fully developed upland site which does 18 not contain wetlands, listed species habitat, or other environmentally sensitive habitat with 19 the exception of existing mangroves that are protected under State law; and 20 WHEREAS, the Owner has provided public notice of the parties' intent to consider 21 entering into this Agreement by publishing an advertisement in a newspaper of general circulation 22 and readershi:p in the County, and provision made for posting of the Property subject to this 23 Agreement, and mailing notices to the persons and entities shown on the most recent Monroe - 3- 109amdda121807 County Tax Roll to be the owner of property lying within three hundred (300) feet of the 2 boundaries of the Property subject to this Agreement; and 3 WHEREAS, the County Planning Commission has held a public hearing on October 24, 4 2007, to consider this Agreement, and the Monroe County Board of County Commissioners 5 has held a public hearing on November 14, 2007, to consider this Agreement; and 6 WHEREAS, the County has determined that this Agreement is in the public interest and 7 will further the health, safety, welfare, of the residents of the County of Monroe. 8 NOW, THEREFORE, in consideration of the mutual promises and undertakings contained 9 herein, the receipt and silfficiency of which are hereby acknowledged, the parties agree as 10 follows: II A. RECITALS. The recitals set forth in the preceding "Whereas" clauses are incorporated 12 herein and form a material part of this Agreement. 13 B. DEFINITIONS. For the purposes of this Agreement, the following terms shall have the 14 following meanings. Terms not defined in this agreement shall be as defined in the 15 County Code, in Chapter 163, Florida Statutes, or, if not defined in the Code or Statute, 16 shall be understood by their usual and customary meaning. 17 1. "Agrllement" shall refer to this Development Agreement, as the same may be 18 subsequently amended, modified or supplemented pursuant to its terms and provIsIons and 19 pursuant to the provisions of Sections 163.3220-163.3243, inclusive, Florida Statutes. 20 2. "County Code" shall refer to the Code of Ordinances of the County of Monroe III 21 existence on the Effective Date of this Agreement. 22 3. "Comprehensive Plan" shall refer to the County's Comprehensive 23 effective as of the date of this Agreement. - 4- 4. "Conceptual Site Plan" shall mean the site plan document attached to this Agreement 2 which portrays the intensities, densities and general location of the development expected and 3 proposed on the Property. 4 5. "Development" shall refer to the redevelopment of the Property for the uses permitted by 5 this Agreement, subject to the conditions, obligations, restrictions and terms contained herein. 6 6. "Dwl,lling, Apartment" shall refer to the dwelling unit type defined in Section 9.5-4 (D- 7 24) of the County Code. 8 7. "Dwdling Unit" shall refer to a dwelling unit as defined in Section 9.5-4 (D-31) of the 9 County Code. 10 8. "Effective Date" shall refer to the date this Agreement becomes effective, as set forth in 11 this Agreement. 12 9. "Final Site Plan" shall mean that site plan which is approved in connection with and part 13 of the Major Conditional Use application approved by the Monroe County Planning Commission 14 for the Property. 15 10. "Floriida Department of Community Affairs" (FDCA) and "state land planning 16 agency" shall mean and refer to the "state land planning agency" as defined in Chapter 163, Part 17 II, Florida Statutes. 18 II. "Land Development Regulations" (LDRs ) shall mean Chapter 19 9.5 of the County Code in existence on the Effective Date of this Agreement. 20 12. "Ownler" shall refer to the owner of the Property identified m the 21 first paragraph of this Agreement. 22 13. "Prop1erty" shall refer to the parcel of real property located in the County that is the 23 subject of this Agreement as described on Exhibit A attached hereto and made a part hereof. - 5- I09amdda121807 14. "Public facilities" those facilities identified means III Section 2 163.3221, Florida Statutes (2004), as well as Sections 9.5-293, 9.5-294, 9.5-326 of the County 3 Code of Ordinances and as set forth in this Agreement. 4 15. "Res:idential Rate of Growth Ordinance" or "ROGO Allocation" shall be as those 5 terms are defined in Chapter 9.5-120 of County Code of Ordinances. 6 16. "Mandalay Bay Development" means the Development as a whole, to include: the three 7 (3) transient units, twenty-two (22) market rate residential units, restaurant facility, accessory boat 8 slips, other al~cessory uses and amenities, and all other uses and structures. 9 17. " ROGO Exemptions" means the right to build two (2) market rate residential units not 10 subject to th.: County's Rate of Growth Ordinance (ROGO) and allocated to adjacent property, 11 which rights are owned or controlled by the Owner, who has full authority to transfer these 12 rights. 13 18. "Site Plan" means both the Conceptual Site Plan dated July 31, 2007, and/or the Final 14 Site Plan with a date to be determined, as appropriate. 15 19. "Transient" means the use of a unit for a consecutive tenancy of 16 28 days or less as defined by Florida Statutes and further defined by Section 9.5-4(T-4) of the 17 Monroe County Code of Ordinances. 18 19 20 C. TERMS OF AGREEMENT. 1. Legal Description; Ownership and Equitable Interests in the Property. The legal 21 description of the Property subject to this Agreement is attached hereto as Exhibit "A" and 22 incorporated herein by reference. The owner of the Property as of the date of execution of this 23 Agreement is the Owner. There are no other legal or equitable owners of the Property known to 24 the parties to this Agreement. - 6- 2. Duration of Agreement, Agreement Renewal. This Agreement shall remain in effect 2 for an initiall period of ten (10) years, commencing on the Effective Date set forth below. This 3 Agreement may be renewed or extended as provided by law. 4 3. Reservations or Dedications of Land for Public Purposes. The parties agree that the 5 owner will dedicate to the County parcel(s) ofland located in the median of US Highway 1- The 6 Overseas Highway - nearby to the property, as further described in the attached survey, Exhibit C, 7 for the sole purpose of open space or non- structural recreational use by the County. The transfer 8 of the property to the County shall be completed within one hundred eighty (180) days of the 9 effective date of this agreement. IO 4. Dedil:ation of Market Rate and Transient Residential ROGO Exemptions. The 11 Owner has full authority through ownership or control, to transfer the two (2) market rate ROGO 12 exemptions that were authorized by the County to be used at the Mariner's Club development, 13 proximate to the property. Said market rate ROGO exemptious were authorized by County Major 14 Conditional Use Resolution 30-1980, and re-authorized by Planning Commission Resolution P82- 15 02. The Owner shall dedicate said market rate ROGO exemptions to the County for construction 16 of affordable housing, administrative relief as defined by Monroe County Code, or any other 17 lawful purpose. The Owner has the full authority through ownership or control, to transfer the 18 eight (8) transient residential ROGO exemptions that were recognized by the County as lawfully 19 established units by the County in its Letter of Understanding dated May, 2006. The owner shall 20 dedicate said transient residential ROGO exemptions to the County for construction of affordable 21 housing as defined by Monroe County Code. 22 5. Other Improvements for Public Use. The Owner and the County have previously agreed 23 that the Owner shall improve and maintain Second A venue from its northern intersection with the -7 - 109amddal21807 northbound lanes of US Highway 1 to its southern terminus at the mean high waters of the 2 Atlantic Ocean. The improvements to be constructed by the Owner shall be: 3 a) Street paving 4 b) Twelve (12) parking spaces for public use c) Parking for nine (9) spaces limited to use by the patrons of the restaurant on the property, wherein such parking spaces shall be identified by signage approved by the County limiting their use for restaurant patrons. d) Landscaping, project identification signage and lighting to at least County standards for such local streets as Second Avenue. e) Reconstruction of the existing accessway at the terminus of Second Avenue to County standards for public use as an accessway described above. However, the reconstruction shall not cause the removal of restaurant facilities located on the County right-of-way for which the owner has a license from the County for such use. f) Utility infrastructure inclusive of water lines, fire hydrants, sewer collection lines, storm sewer lines, electricity and lighting. g) Appropriate signage limiting parking as required by the County. The Owner and the County agree that the County shall grant to the Owner easements and necessary agreements to allow the owner to maintain the improvements named above on a regular basis at no cost to the County. The right to use the nine (9) parking spaces for the restaurant shall remain as long as there is a lease agreement with the County, unless the restaurant is voluntarily removed from the property by the owner or its assigns. Existing Development; Preparation for Redevelopment. a) Existing Development. The following residential uses were recognized by Monroe 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6. 23 - 8- 2 3 4 5 County on the Property and have subsequently been demolished: twenty-two (22) permanent residential units, eleven (II) transient units. The Owner is entitled to the use of a total of five thousand one hundred and eighty three (5183) square feet of commercial floor area, of which three thousand seven hundred eighty two square feet are being retained for restaurant use, a twelve (12) slip accessory docking 6 facility and other amenities. 7 b) Redevelopment Preparation. The Property will be prepared for redevelopment by permitted demolition and appropriate removal of certain existing structures. Plan Approval, Including Densities and Intensities. Appmval of Conceptual Site Plan; Minor Revisions; Final Site Plan. The Property shall be redeveloped and operated as a Resort consisting of three (3) transient Resort units, twenty-two (22) market rate units, together with three thousand seven hundred eighty two (3782) square feet of restaurant floor area consisting of one thousand seven hundred eight(:en (1718) square feet of enclosed space and two thousand sixty four (2064) square feet of open dining area, twelve (12) boat slips depicted on the Conceptual Site Plan for Mandalay Resort, dated July 31, 2007, which was prepared by Erickson Associates, and is attached hereto as Exhibit C. The Conceptual Site Plan is subject to further approval by the County Planning Commission, however said future approvals shall recognize the aforementioned uses and densities and intensities whether they are used on or offsite; any subsequent site plans, site plan approvals and building permits shall substantially comply with this Conceptual Site Plan. The Final Site Plan may modified without further approval from the Planning Commission, but with staff approval only, to accommodate: (1) refinements to the site plan submitted for building permit including minor shifts in - 9- 8 9 7. 10 a) 11 12 13 14 15 16 17 18 19 20 21 22 23 109amddal21807 2 3 4 5 location of five (5) feet or less in the residential structures, roadways, pathways, and swimming pool configurations; (2) changes to the building type or number of residential units, so long as the density set forth in this Agreement is not exceeded; or (3) modifications that are necessary to meet regulatory requirements imposed by any other governmental entity. 6 b) Form of Ownership. The Property may be redeveloped and operated as a resort, 7 condominium, cooperative, fractional ownership, or similar form of ownership of all or a 8 portion of the properties; and the submission of the properties to the condominium, 9 coopl~rative, or similar form of ownership (and recordation of a corresponding declaration 10 of condominium, fractional, cooperative or similar instrument) or the sale of individual 11 transient residential dwelling units therein shall not be prohibited or in violation of the 12 terms and provisions of this Agreement. 13 c) Exempt Dwelling Units under this Agreement. Pursuant to Section 9.5-120.4(a) of the 14 County Code, the twenty-two (22) market rate units and the three (3) transient residential 15 dwelling units on the Property, together with the unused eight (8) transient units allocated 16 to the: Property and offered to the County but, not used for the Conceptual Site Plan, are 17 exempt from the requirements of the County's residential RaGa. 18 d) Densiity under this Agreement. Pursuant to Section 9.5-204, Section 9.5-206, and 9.5- 19 219 of the County Code applicable to the Urban Residential (DR), Suburban Commercial 20 (SC) and Mixed Use (MU) districts and applicable provisions in the Comprehensive Plan, 21 Owner is entitled to redevelop, and will redevelop the Property to consisting of three (3) 22 transient units, twenty-two (22) market rate units, subject to Planning Commission 23 approval. - 10- 2 e) Commercial Floor Area Approved Under This Agreement. Pursuant to County Code 9.5-124.3, the Owner is to be able to use or reconstruct a total of three thousand seven hundred eighty two (3782) square feet of commercial floor area or non-residential development on the Property without being subject to NROGO requirements 3 4 5 1) ACCI~SSOry Uses. Accessory uses to be developed or 6 redeveloped on the Property as part of the development include the following: Pools and pool decks, landscaping, street and parkiog areas, and all other areas of the 7 8 development not part of a transient residential unit. Accessory, "back of the house" uses 9 to the development: spa services, storage, receiving, men's and women's locker rooms, 10 employee lounge, public circulation, maintenance, toilets, offices, and mechanical room. II The use of the accessory uses shall be limited to the owners and guests of the development. The accessory dock slips will be for the exclusive use of on-site owners and guests and will not be operated as a commercial marina. No live-aboards will be permitted. The Owner shall record in the public records of Monroe County a deed restriction in a form acceptable to the County prohibiting the use of live-aboards on the 12 13 14 15 16 Property. 17 8. Devellopment Conditions. The following conditions, terms, restrictions, and other 18 requirements have been determined by the County of Monroe to be necessary for the public 19 health, safety, and welfare of its citizens: 20 a) Building Height. Buildings may be constructed to a maximum height of thirty- five (35) 21 feet pl~r section 9.5-283 of the County Code 22 b) Setbacks. The County acknowledges that there is no undisturbed or unaltered shoreline on 23 the Property. Pursuant to County Code Section 9.5-286, a twenty (20) foot setback from - 11- W9amdda 121807 the mean high water line ("MHWL") shall be required for all principal structures. 2 c) Utilities, Lighting, and Signage. Utilities, lighting, and signage shall comply with all 3 applicable requirements of the County Code, including the waterfront lighting criteria in 4 County Code Section 9.5-395. The Owner shall install all utilities underground where 5 practicable and shall screen all utility facilities. The Owner shall utilize shaded light 6 sources to illuminate all signs, facades, buildings, parking and loading areas, and shall 7 arrange such lighting to eliminate glare to parcels lying outside the Property. No 8 intermittent or flashing lights or flashing signs shall be allowed. 9 d) Landlscaping. The Owner and/or condominium or other association shall utilize 10 "best installation and maintenance practices" for landscaping throughout the Property, 11 including but not limited to that which is required in Divisions 10 and 11 of the Code, 12 throughout the project. The above listed parties shall provide a gnarantee bond to ensure 13 one hundred percent (100%) survival of all owner-installed plants for one (I) year after 14 receipt of a final Certificate of Occupancy for each section of the Development, acts of 15 God such as hurricanes not withstanding, as further defined by Sections 9.5-361, 9.5-376, 16 9.5-378, and 9.5-379 of the County Code. Seventy percent (70%) of all required plants 17 installed shall be Florida Keys native plants that are suitable for the site conditions and are 18 a species typical of the Upper Keys. The Owner shall remove all Category I invasive 19 exotic plants on the Property. 20 e) Parkilllg. The redevelopment shall comply with the parking criteria as required by Section 21 9.5-352 of the County Code. The owner shall have the right to place nine (9) parking 22 spaces of the total parking spaces required for the restaurant on the public right-of-way of 23 Second Avenue immediately adjacent to the restaurant, and on County property to be - 12 - 2 improved and maintained by the Owner as described in section 9. "Other Improvements for Public Use" below. 3 f) Othllr Improvements. There will be a sewage treatment 4 plant (STP) provided as depicted by the Conceptual Site Plan that serves the Property, or 5 connection to the Key Largo Wastewater Treatment District at time of permit. 6 g) Internal Infrastructure. The underground infrastructure, water and sewer serving the 7 transient residential dwelling units and residential dwelling units and commercial units, 8 shall be completed before a Certificate of Occupancy may be issued for the unit. 9 h) Fire Safety. The Owner shall provide firewalls and other such fire protection facilities 10 as required by the Life Safety Code. Fire sprinklers will be installed as required by 11 County Code. 12 i) Open Space Ratio. Pursuant to County Code Sections 9.5-343, 9.5-262, and 9.5-267, a 13 minimum of twenty per cent (20%) open space is required. The Owner will maintain a 14 minimum of twenty per cent (20%) open space on the Property. 15 j) Wind Load. The Owner shall construct all structures on the Property, including doors, 16 windows, and cladding, to withstand the mile per hour peak winds as specified in the 17 2004 Florida Building Code. 18 k) Enerl~y Efficiency. The Owner shall construct all residential and commercial structures in 19 conformance with the specifications of the State of Florida Energy Efficiency Code for 20 Building Construction (State Energy Code) and further defined by Sections 9.5-329 and 21 9.5-335 of the County Code. 22 I) Permits from Other Regulatory Entities. Other agency permits or approvals may be -13- 109amdda121807 required as provided by applicable law prior to the County's issuance of building permits 2 for redevelopment of the Property. The Owner shall obtain all necessary permits or 3 approvals from other local, regional, state and federal regulatory entities and provide 4 copies of each to the County within a reasonable time after such permits are issued. 5 m) Stormwater Management. The Development shall comply with the stormwater 6 management criteria in County Code Section 9.5-293 and as approved by the South 7 Florida Water Management District (SFWMD). The Development will meet all applicable 8 federal, state, regional, and local stormwater management requirements, including any 9 applicable requirements pursuant to the National Pollutant Discharge Elimination System 10 (NPDES) permit issued by the Florida Department of Environmental Protection (FDEP) 11 for the County in February 2005, prohibiting direct discharges into Outstanding Florida 12 Waters. 13 n) ROGO EXEMPT Dwelling Units. The Owner has agreed to donate to the County two 14 (2) market rate ROGO exempt dwelling units, which it owns, or controls, for affordable 15 housing use, administrative relief, or any other lawful purpose as described in Section 4 16 "Dedication ofROGO Exemptions" above. 17 0) ROGO EXEMPT Transient Units. The Owner has agreed to donate to the County 18 eight (8) transient residential ROGO exempt units, which it owns, or controls, for 19 affordable housing use as described in Section 4 "Dedication of ROGO Exemptions" 20 above. 21 p) Additional Conditions by Mutual Agreement. Nothing in this Agreement shall 22 preclude the parties from applying additional conditions, by mutual written consent, 23 during the [mal permitting approval process. - 14- q) Temporary Sales Facilities. The County will permit the construction/placement of a 2 temporary sales center and a model unit. 3 r) Unity of Title. The Owner has agreed to execute a Unity of Title combining the upland 4 parcels described in Exhibit A and to record same in the public records of Monroe County, 5 Florida. The Owner shall provide copies of the recorded instrument, showing the book and 6 page where recorded, to the County within ninety (90) days of the effective date of this 7 agreement. Prior to recordation, the Owner shall additionally provide the County an 8 Opinion of Title in a form acceptable to the County Attorney. 9 9. Public Utilities; Concurrency, Impact Fees. The following identifies the public facilities 10 that are required and that will service the development authorized by this Agreement; who shall 11 provide the facilities; what new facilities, if any, will be constructed; and a schedule to assure 12 public facilities are available concurrent with the impacts of development. 13 a) Potable Water. The Florida Keys Aqueduct Authority provides domestic potable water. 14 b) Electric Service. Florida Keys Electric Cooperative provides electric service. 15 c) Solid Waste. County Garbage Service or its successors and assigns, as determined by the 16 County, provide solid waste service. 17 d) Fire Service. Fire service is provided by the Key Largo Volunteer Fire District. 18 e) Concurrency. All public facilities identified above are available as of the date of this 19 Agreement, and capacity for each is projected to be available concurrent with the impacts 20 of development. 21 f) Wastlewater. Wastewater treatment shall be provided by the construction of a new 22 advanced wastewater treatment ("A WT") plant approved by the Florida Department of 23 Environmental Protection. The treatment plant shall meet the A WT nutrient removal - 15- 109amdda121807 2 3 4 5 6 g) 7 8 9 h) 10 11 12 13 14 15 10. standards as specified by FDEP and shall be completed before a Certificate of Occupancy may be issued for any unit or accessory use. Should the Key Largo central wastewater treatment system have available capacity and collection lines in place at the time of certificate of occupancy of the units and commercial floor area at the resort, the owner shall connect to that system. Public Recreational Facilities. Public recreational facilities shall be addressed through impa'~t fees, if any. The Owner has agreed to donate land for public open space use and recreation. Impact Fees. Any increased impact on public facilities or public services attributable to each unit of the development, and the cost of capital improvements to meet the associated demand on such facilities or services, shall be assured by payment to the County, concurrent with the issuance of the building permits for each unit, of any applicable County impact fees required by ordinance then in effect, as well as by payment by the Owner of any applicable utility system development fees. Retellltion and Transfer of Excess Commercial Floor Area. The Property has existing 16 rights to fivtJ thousand one hundred eighty three (5183) square feet of lawfully established non 17 -residential floor area. The Conceptual Site Plan proposes the use of three thousand seven 18 hundred eighty two (3782) square feet of non-residential floor area. The County and the Owner 19 agree that the excess of one thousand four hundred one (1401) square feet of floor area may be 20 retained by ~l1e owner and transferred to another site as allowed by County Code. 21 11. Extelllsion of Reverter Clause Attached to Approval of Abandonment of Portions of 22 East First :and East Second Streets. The County's approval of the Owner's petition for 23 abandonment was approved with the condition that should development on the Property not be 24 undertaken ,.vithin two (2) years of the approval of the abandonment, the road right-of-way - 16 - , 1 abandoned will revert to the ownership of the County. By this Agreement the County and Owner 2 agree that the time frames for the reversion clause of the road abandomnent approval is extended 3 to the period required for obtaining Certificates of Occupancy for the development or ten (10) 4 years from the effective date of this Agreement as provided in section C.B a.3 below. All Local Permits Approved or Needed. Development Approvals. The following County development approvals are required for the development authorized by this Agreement: 1) Conditional Use Approval. Final Site Plan approval by the County Planning Commission and planning staff confirming compliance with this Agreement and applicable County Code requirements. 2) Final Site Plan. Final site plan application and approval by the County building official, fire marshal, and planning staff confirming compliance with this Agreement and applicable County Code requirements. 3) Building Permits. As of right building pennits will be issued, as provided pursuant to the County Code, for each transient residential dwelling unit as well as for 5 12. 6 a) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 the boat dock units, pool facilities, commercial floor area, and other individual slructures. An overall site pennit will address landscaping, parking, paths, setback, open space and other associated items. The Owner has informed the County that as an option it may employ the services of a "private provider" architectural engineering firm to review building permit applications and perform construction inspections and issue reports to the County, as allowed by state law applicable to the Building Code. The County has indicated that it will cooperate with the Owner to facilitate the use of "private provider" services for building permit review and inspections, whose cost will - 17 ~ 109amddal21807 be the responsibility of the Owner. The Owner shall have a period of ten (10) years timm the effective date of this Agreement to obtain the fIrst CertifIcate of Occupancy DJr a building on the Property and four (4) years from the effective date of this Agreement to obtain the fIrst building permit. The building permits for the improvements to Second Avenue shall be submitted within forty-eight (48) months of the effective date of this agreement. b) Revi,ew. No further review or discretionary review will be required by the County with the exception of the Planning Commission Major Conditional Use review, it being agreed that the Development, as depicted on the approved Conceptual Site Plan attached hereto, requires only the aforementioned development approvals so long as the Final Site Plan substantially complies with the Conceptual Site Plan approved under this Agreement. c) Compliance. Nothing in this Agreement shall be deemed to obviate the Owner's compliance with terms and provisions of each such identifIed approval. d) Completeness. The parties acknowledge that the Owner has submitted all information necessary for review under the County Code. MutUlal Cooperation. The County agrees to cooperate with the Owner in a timely manner 17 in providing and/or granting all permits, licenses, approvals, or consents necessary or appropriate 18 to fully implement this Agreement. The County and the Owner agree to cooperate fully with and 19 assist each other in the performance of the provisions of this Agreement. 20 14. Development to Comply with Permits and County Comprehensive Plan and Code 21 Provisions. The development described in and authorized by this Agreement shall be constructed 22 in accordance with all specifIed permit conditions, and in accordance with all applicable 23 provisions of the County's Comprehensive Plan and County Code. No CertifIcate of Occupancy 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 13. - 18 - for a permanent individual building, with the exception of the temporary sales office/model unit 2 shall be issued until the County has assured itself that, subsequent to approved plans, the Owner 3 has complied with all conditions in the permits issued by the County and other regulatory entities 4 for that building. 5 15. Findiing of Consistency. The County finds that the Development authorized herein is 6 consistent with the County's Comprehensive Plan and Land Development Regulations as 7 applicable. Approval of this Agreement satisfies the requirements of Section 9.5-266(3)b of the 8 Code. 9 16. Compliance with Permits, Terms, Conditions, and Restrictions not identified Herein. 10 The failure of this Agreement .to address a particular permit requirement, condition, term, or 11 restriction shall not relieve the Owner of the necessity of complying with the laws governing said 12 permitting requirements, conditions, terms, or restrictions. 13 17. Governing Laws. 14 a) Controlling Regulations. For the duration of this Agreement, all approved development 15 on the Property shall comply with and be controlled by this Agreement and by the 16 provisions of the Comprehensive Plan and County Code, as applicable. The parties do not 17 anticipate the application of subsequently adopted laws and policies to the Property except 18 as expressly provided in this Agreement. 19 b) Subsequently Adopted Laws and Policies. Pursuant to Section 163.3233, Florida 20 Statutes (2004), the County may apply subsequently adopted laws and policies to the 21 Property only if the County holds a public hearing and determines that: (a) the new laws 22 and policies are not in conflict with the laws and policies governing the Agreement and do 23 not prevent development of the land uses, intensities, or densities set forth in this - 19- 109amdda12l807 2 3 4 5 6 7 8 9 10 11 C) 12 13 14 15 16 18. Agreement; (b) the new laws and policies are essential to the public health, safety, or welfare, and the County expressly states that they apply to the Development that is subject to this Agreement; (c) the local government demonstrates that substantial changes have occUlTed in pertinent conditions existing at the time of approval of this Agreement; or (d) the Agreement is based on substantially inaccurate information supplied by the Owner. Redevelopment of the Property shall not be subject to any moratoria or other restrictions on redevelopment, including the redevelopment of existing mobile home parks, marinas, or recreational vehicle parks, which may be established or otherwise imposed in any manner or at any time by the County. Nothing in this Agreement shall prohibit the parties from mutually agreeing to apply subsequently adopted laws to the Property. State: or Federal Laws. If state or federal laws enacted after the effective date of this Agreement preclude any party's compliance with the terms of this Agreement, this Agreement shall be modified as is necessary to comply with the relevant state or federal laws. However, this Agreement shall not be construed to waive or abrogate any rights that may vest pursuant to common or statutory law. Amellldments, Renewal, Revocation and Termination. This 17 Agreement may be amended, renewed, or terminated as follows: 18 a) Amellldments. As provided in Section 163.3237, Florida Statutes (2004), this Agreement 19 may be amended by mutual consent of the parties to this Agreement or by their successors 20 in interest; an instrument in writing signed by the parties or their successors shall 21 accomplish an amendment under this provision. 22 b) Renewal. As provided in Section 163.3229, Florida Statutes (2004), this Agreement may 23 be renewed by the mutual consent of the parties, subject to the following public hearing - 20- requirements in Section 163.3225, Florida Statutes (2004): the County shall conduct at 2 least two (2) public hearings, one (I) of which may be held by the local planning agency at 3 the option of the County. Notice of intent to consider renewal of the Agreement shall be 4 adveltised approximately seven (7) days before each public hearing in a newspaper of 5 general circulation and readership in Monroe County, Florida and shall be mailed to all 6 affected property owners before the first public hearing. The day, time, and place at which 7 the second public hearing will be held shall be announced at the first public hearing. The 8 notic,c shall specify the location of the land subject to the Agreement, the Development 9 uses on the Property, the population densities, and the building intensities and height and 10 shall specify a place where a copy of the Agreement can be obtained. 11 c) Termination by Owner. The Owner or its successor(s) in interest may terminate this 12 Agreement following a breach of this Agreement, upon written notice to the County as 13 provided in this Agreement. 14 d) Revocation by County. Pursuant to Section 163.3235, Florida Statutes (2004), this 15 Agreement may be revoked by the County if the County finds, on the basis of 16 competent substantial evidence, that there has been a failure to comply with the terms of 17 this Agreement. 18 e) Termination by Mutual Consent. This Agreement may be terminated by mutual 19 consent of the parties, and such mutual termination shall not require a public hearing to 20 effect the termination. 21 19. Breach of Agreement and Cure Provisions. 22 a) Written Notice on the Owner. If the County concludes there has been a material 23 breach of this Agreement, prior to revoking this Agreement, the County shall serve - 21- 109amddal21807 2 3 4 5 6 7 8 9 b) 10 11 12 13 14 15 16 17 18 19 C) 20 21 22 d) 23 24 20. written notice on the Owner, identifying the term or condition the County contends has been materially breached and providing the Owner ninety (90) days from the date of receipt of the notice to cure the breach or negotiate an amendment to the Agreement. Each of the following events, unless caused by fire, storm, flood, other Act of God, or events beyond the control of the Owner, shall be considered a material breach of this Agreement: (a) failure to comply with the provisions of this Agreement; or (b) failure to comply with terms and conditions of permits issued by the County of County or other regulatory entity for the Development authorized by this Agreement. Written Notice on the County. If the Owner concludes that there has been a material breach in the terms and conditions of this Agreement, the Owner shall serve written notice on the County, identifying the term or condition the Owner contends has been materially breached and providing the County ninety (90) days from the date of receipt of the notice to cure the breach or negotiate an amendment to the Agreement. The following events, unless caused by fire, storm, flood, other Act of God, or events beyond the control of the County, shall be considered a material breach of this Agreement: (a) failure to comply with the provisions of this Agreement, or (b) failure to timely process any application for site plan approval or other development approval required to be issued by the County for the Development authorized by this Agreement. Option to Terminate. If a material breach of this Agreement occurs and is not cured within the time periods provided above, the party that provided notice of breach may elect to terminate this Agreement or may seek to enforce this Agreement as provided herein. Waiver of Breach. If either party waives a material breach in this Agreement by the other party, such a waiver shall not be deemed a waiver of any subsequent breach. Notic:es. All notices, demands, requests, or replies provided for or permitted by this 25 Agreement, including notification of a change of address, shall be in writing to the addressees - 22- identified below, and may be delivered by anyone of the following methods: (a) personal 2 delivery; (b) deposit with the United States Postal Service as certified or registered mail, return 3 receipt requested, postage prepaid; or (c) deposit with an overnight express delivery service with a 4 signed receipt required. Notice shall be effective upon receipt. The addresses and telephone 5 numbers of the parties are as follows: 6 TO THE OWNER: 7 Doug Cordelo 8 Ocean Sunrise Associates, LLC 9 12800 University Drive, Suite 400 10 Ft. Myers, Florida 33907 11 Telephone: (239) 415-6202 -23 - 109amdda121807 With a CO]~Y by I'egular U.S, Mail to: 2 Timothy N. Thomes, Esquire 3 99198 Ov,erseas Highway, Suite 8 4 Key Largo, FL 33037 5 Telephone (305) 451-4053 6 7 TO THE COUNTY 8 Monroe County Administrator 9 1110 Simonton Street 10 Key West, Florida 33040 Telephone: (305) 292-4441 11 12 With a cO~IY by I'egular U.S. Mail to: 13 Suzanne Hutton, Esquire 14 Monroe County Attorney 15 Post Offj.ce Box 1026 16 Key West, Florida 33041-1026 17 Telephone: (305) 292 3470 18 19 21. Annual Repol't. On the anniversary date of the Effective Date of this Agreement, the 20 Owner shall provide to the County a report identifYing: (a) the amount of development authorized 21 by this Agr,eement that has been completed; (b) the amount of development authorized by this 22 Agreement that remains to be completed; and (c) any changes to the plan of development that 23 have occurned during the one (I) year period from the Effective Date of this Agreement or from 24 the date of ~le last annual report. 25 22. Enfol'cement. In accordance with Section 163.3243, Florida Statutes (2004), any party to 26 this Agreement, any aggrieved or adversely affected person as defined in Section 163.3215(2), 27 Florida Statutes (2004), or the state land planning agency may file an action for injunctive relief 28 in the circuit court of Monroe County, Florida, to enforce the terms of this Agreement or to 29 challenge the compliance of this Agreement with the provisions of Sections 163.3220-163.3243, 30 Florida Statutes (2004). If this Agreement is not accepted and approved by Monroe County, then 31 all rights and property transferred by the O\\l1er to the County shall revert to, and shall be 32 transferred back to. the Owner. - 24- 23. Binding Effect. This Agreement shall be binding upon the 2 parties hereto, their successors in interest, heirs, assigns, and personal representatives. 3 24. Drafting of Agreement. The parties acknowledge that they jointly participated in the 4 drafting of this Agreement and that no term or provision of this Agreement shall be construed in 5 favor of or against either party based solely on the drafting of the Agreement. 6 25. Severability. In the event any provision, paragraph or section of this Agreement is 7 determined to be invalid or unenforceable by a court of competent jurisdiction, such 8 determination shall not affect the enforceability or the validity of the remaining provisions of this 9 Agreement. 10 26. Appllicable Law. This Agreement was drafted and delivered in the State of Florida and 11 shall be construed and enforced in accordance with the laws of the State of Florida. 12 27. Litigation; Attorney's Fees; Venue; Waiver of Right to Jury Trial In the event of any 13 litigation arising out of this Agreement between the County and Owner, the prevailing party shall 14 be entitled to recover all reasonable costs incurred with respect to such litigation, including 15 reasonable attorney's fees. This includes, but is not limited to, reimbursement for such reasonable 16 attorneys' fel~s and costs incurred with respect to any appellate, bankruptcy, post-judgment, or 17 trial proceedings related to this Agreement. Venue for any legal proceeding arising out of this 18 Agreement shall be in Monroe County, Florida. The parties to this Agreement waive the right to 19 a jury trial in any litigation arising out of or initiated under this Agreement. 20 28. Use of Singular and Plural. Where the context requires, the singular includes the plural, 21 and the plural includes the singular. 22 29. Dupliicate Originals; Counterparts. This Agreement may be executed in any number of 23 originals and in counterparts, all of which evidence one (l) agreement. Only one (I) original is - 25- I 09amddal21 807 required to be produced for any purpose. 2 30. Headings. The headings contained in this Agreement are for identification purposes 3 only and shall not be construed to amend, modify, or alter the terms of the Agreement. 4 31. Entirety of Agreement. This Agreement incorporates or supersedes all prior 5 negotiations, correspondence, conversations, agreements, or understandings regarding the 6 matters contained herein. The parties agree that there are no commitments, agreements, or 7 understandings concerning the subjects covered by this Agreement that are not contained in or 8 incorporated into this document and, accordingly, no deviation from the terms hereof shall be 9 predicated upon any prior representations or agreements, whether written or oral. This 10 Agreement (:ontains the entire and exclusive understanding and agreement among the parties II and may not be modified in any manner except by an instrument in writing signed by the 12 parties. 13 32. Recording; Effective Date. The Owner shall record this Agreement in the public records 14 of Monroe County, Florida, within fourteen (14) days after the date of execution of this 15 Agreement. A copy of the recorded Agreement showing the date, page and book where recorded 16 shall be submitted to the state land planning agency by hand delivery, registered or certified 17 United States mail, or by a delivery service that provides a signed receipt showing the date of 18 delivery, within fourteen (14) days after the Agreement is recorded. The Owner shall also provide 19 a copy of the: recorded Agreement to the County within the same time period. This Agreement 20 shall become effective thirty (30) days after the date it is received by the state land-planning 21 agency. 22 33. Date of Agreement. The date of this Agreement is the date the last party signs and 23 acknowledges this Agreement. - 26- IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, 2 have set their hands and seals on the dates below written. The foregoing instrument was acknowledged before me on this \ G day of DE'~.......\:.-e-r of Ocean Sunrise Associates LLC. who is 3 4 5 6 7 8 9 10 11 12 Ocean Sunrise Associates LLC \'2..." \0.. ~ 0.., Date By: STATE OF FLORIDA COUNTY OF r.i~rJjlj''::'E LeQ.. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 2007, by~,~nl:03.Cc....,\Q\\oas -J~ personally kJ~ to me or who produced did/did not take an oath. s 1. Cordello as identification, and who N"t~~l~~.., My commission expires: r /2.3111 COUNTY OF MONROE l'I'~I'OI Date By CD 'UIIIIIIJ.-' . .... ..... . ... "..... ..~ . "'l1li". 01 . ..DO_ ~ (Seal) ~ Sonny McCoy, MAYOR rH" "" ATTES~.I...." "" ~ ~13rk CO~~~~' ~J6amkJ APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE COUNTY OF MONROE, FLORIDA ONLY. "." (\ C\ ", d~N~~;~~jyUHr o2Jp;y ~-1,-/ /7f; ,;(OC'5 -27- y 109amddal2l807 EXHIBITS TO OCEAN SUNRISE ASSOCIATES, LLC DEVELOPMENT AGREEMENT EXHIBIT A: LEGAL DESCRIPTION OF PROPERTY EXHmIT B: LEGAL DESCRIPTION OF LEASED PROPERTY EXHmIT C: CONCEPTUAL SITE PLAN EXHIBIT D: LEGAL DESCRIPTION OF LAND TO BE DEDICATED TO COUNTY EXHIBIT A Legal Description of Subject Property Subject property containing parcels described as: Lots 1..8 & 30-33, Mandalay Subdivision, Plat Book 1 -194, Key Largo, Monroe County, Florida RE # 00554420; SW'LY 125'x250' & NW'LY 95' ofNE'LY 100' ofSW'LY 225' ofSQR3, Mandalay Subdivision, Plat Book 1-104, Key Largo, Monroe County, Florida RE# 00554730; Lots 1-2, Block 4, & Adjacent Bay Bottom, Mandalay Subdivision, Plat Book 1-194, Key Largo, Monroe County, Florida RE# 00554740; NE 50' of the SW 225' ofSQR 3 (5-A), Mandalay Subdivision, Key Largo, Florida PT SQR 3, Mandalay Subdivision, Key Largo, Monroe County, Florida RE# 00554670 Section 06, Township 62, Range 39 EXHIBIT B Legal Description of Leased Property Property described as the Easterly ten feet of Second Avenue, adjacent to Lot I, Block 4, Plat Book 1-194, Mandalay Subdivision, Key Largo, Monroe County, Florida gut-CS-EOwl I4;I3 Frortelited CDUITY MIMING +50S210421 i-N a let F-511 LEASEACsintdeta THIS LEASE A1. REeMRNI. made and entered into this day ofilarl ? 1997_ between the BOARD Of COUNTY COMMISSIONERS OF MONROE COUNTY. FLORIDA. hereinafter referred to as'LESSOR"and CANALIS HOLDING CORP..hereinafter refined to as"i.BSEE." LF for and le aonsizieration of the mutual Covenants and og eerneenfs hereinafter cor►toir+ed. does hereby lease to said LESSEE the fonds described In paragoph 2 betow on subject to the following;toms and condition's I The term of lids sea to shill be a of twenty t201 Y carrvnerxdng or1 pues 1/ Q a1d ending on It/ D ,7 . ,sakes sooner t.rnir,wteci to the provisions of this lease. 2' DIMMETKIK2ErgatiasThe property subject to this base It situated In the County apt Monroe. State of Florida.and Is more partiiousdrfy described as the easterly ten reef of Seoon CI Avenue.Mandalay Subdivision.Key Largo,Monroe ee County.►loddim adjacent to Let I. Block 4.Plat Book 1-194 3. MIME This Ware is to the ourpOseS described in EidtikfR A wrier is ached hereto and mode a pen t+cr+eet. 4. CONSIDERATION LESSEE shall pay to LIBOR wi*Nn ten days of She carrxnencement date and each anniversary them tor.the sum et$100 pa'year to be remitted to die Clem:for the loard of County Commissioners.S00 WhNMheod Street,Key West.Florida 33040. S. QUIET ENJOYMENT AND RCM OF ifig LESSEE seta/haws the right of Ingress and e gress to /torte and upon the leased premises few d purposes necessary to he full Quiet enjoyment by sold LESS8E.cs the 4phts conveyed twin. 6. MegreOrigkaja USSR steal. through Its agents and employees, prevent the unauthorized use at the leased premises or ariy use thereof not Ln conformance with this Lease. No changes or Improvements which increase to any degree the eetti gig footprint df bulidLngs an said teased premises or any otter improvement. or my eer1Bon to e y existing tandtoopirg. O'cludt►ig;Wants and rocks.shall be allowed under this loose 7- AISINZAKIMIumAK without the This lease shad not be assigned a subleased in whole or in pat Prior wflttort Consent of LESSOR My assignment or sublease Made either it Whoie or In part without the prior% WWhen consent of LESSOR shall be void and WI/haft Teem effect. 8- ft,Searg$ This lease is subject so sty only ecarenneat wilting an said leased premises. Any other easement not*moved in wlNilp by LESSOR that be void and without legal effect 9. Of APICMIIr LESSOR a its duty or ernployeet t h t have The right of MY end all times gauthorizeddaylight ht agents.sa Inspecfeerest hee(leaves d prrlrnises and the worts and operations of LESS'in cluing K howl to lease. the eased any matter pertaining to this tease. 10. kfittormickagemegatill During g the term of this lease. LESSEE shall procure and maintain policies of fins. a deeded risk. and lately insuranot coverage. The lately Insurance Coverage shaf be In amounts not less than $100.000.00 per ocewrenoe and $200.000.00 per aoad.nl for personal irtfuy, death and property damage on the leased errs. Such Fade's of insurance shaft Ram. LESSOR, Monroe County. and Lessee of co.1rexureds. 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CODE WailLIAWS LESSEE agrees that this Dare Is contingent upon and subject to LESSEE obtaining d AppSO able permits and complying with ad applicable permits. regulations. onlinanoes. noes. and laws of the Slate of Florida or the Untied States or of any po#ttool subdivision or agency of ether. isaaa Al notices given under Ns loose shrill be In wining and shill be sensed by certified mill irncludirtp. but not invited to. rtolloe of any violation served pursuant to 253A4, Ronda Statutes to the last address of the party to whom notice b to be given. as designated by suds poly in writing. LESSOIS and LESSEE hereby designate their address as follows ulnaeLIISSOlb County Administrator Marty Webb Kibbe Service Bulking CANAUS HOLOiWG CORP. 5100 Coupe Rood.Stock blond a0 East Seoand Street Key West.fit 33040 Key Largo.a 33037 21. IREACILCIUMIlliatinjumsamoknalMIS Coverwntr.terns ear conditions of the leases. LESSOR that pave written notice to LIFSSEE to remedy such breach within sixty WI days cf such nice. in the event LESSEE fags to remedy the breach to the satisfaction of LESSOR within sixty 1601 days of receipt of mitten notice.LESSOR may either terminate this tease and recover from.LESSEE all damages issoR may Incur by reason of the breach including but not bitted to the cost of recovering the Wawa premises and attorneys. fief or maintain fhb tease in turf face and effect and emends* al rights and remedse herein conferred upon LESSOR. 22. DAIMCKEIMEZgagal tAt IMISEE shall not do. a sutler to be done. tit. on a upon fine Wand prombes or as raffectisp said loosed prereveses a►a idoenf proper ies. any act which may result in dam or deprsdorron of value to the leased premises or GLQQCent properties.or any part thereof. (I) LESSEE shdl not generale, store. tiroduoe. per, heat. release or discharge any contaminant, pollutants or palufion.inducing.but not limited b.haasrxdous or iodc substnea, aiernicats or offset agents on.Into.or from the bated Priollikesor any adjacent lands or waters in anv manner not perrendted by boss. for the purpose Of this lease. 'hazardous substances" shot mean and include those elements or compounds defined in 42 USC Section 9E01 Or which are contained it the $t of hesaardeus sub:knee l adopted by the United States Envronrrxntat Protectors Agency WA' and the 1st of toxic pollutau destpnoted by the United Slates Congress or the EPA or defined by any other federal. state or local statute. law. ordinance. cads. rule. regutotion, order or decree regulating, relating to. or imppble Sammy or standardl o f condom concerning any hazardous, task dt`dvngeteut waft substance, mafwdasi. polLrtant at contaminant_ °Polutant and •ppifx,kol" that mean those products ar substances defined in Florida Statutes, Chop* 376 and Chapter 4033. and the ales promulgated Phone i seder. di as amended or updated torn tine to tkt<ae to the event al LIMEEls failure to comply with this Paroaraah. LESSEE sisall at lb sole cost and expense prorripey commence and diligently pursue any liwitaNY required downs. investigation, awewrnervt cleanup. deeentominaears. rernedicrtion. waters and lands byLESSEE'.such t to andcomply,as off-we 'd and iugcthe teased premises and affected otT-die eaten and lands maynecessary be to bring bfe e federal, state. Cr local statutes. taws, ord antes a with d and d are t onct to restore the damaged I: ogerty to the oonafdson arising regulations. stet pd�pgh' occurrence which Doused the dornpge. LESSft s � r prior to the survive the terminators of expiration of ttts lease. T set forth In this paragraph shall l:rttftatiort upon LE44FE's obligations paragraph sndi not be construed as a set forth In ng lrsciem,,il10 ion and payment of aacis and Fees as paragraph 12 of this rye,nor upon any other obligations or responsibilities of LESSEE 3 Aq-/1-t11/4 14:14 Frog-100 COOITY MINDING +i0MUi43 T-ff4 '.IO4i e$ F-5Q• ai sett froth herein. Nothing herein shill relieve LESSEE of any►esporkty or uP erlaw r contc:nalties and damages levied by geverrm�entod agencies,and the of Wining dfoovery of a release of a hazardous substance ol by t. o s aft violation or nfot batles. upon or fsrderd law. ordnance. code. �. pollutant.or�"'►'other vreloibrt of locsof. c#ate. regulglion. order or decree relating to the generatiOn. sCara e.production.Pbcernent treatment,reface*or discharge of awry contaminant.LESSM siva report such v eda(lon to of atoorkdble governmental agencies having piton.and to oil within the reporting period of he applicable agency. LESSOR. (CI Should the buildings which attend onto the leased premises be substantially damaged for any reason and Cannot be repaired but mi.et pursuant to low. be reproved and be ntalloak humino laws in ttudetarrcoe at the three of trlCh occurrence. shag 23' SagitalutnimiselUpon termination or ex plestion of tit bars. L shag surrender the teased pram en to LESSOR in the event no Whir use of the teasrq prerrises or any part*woof b needed LESSEE strap give%written noilliostifort to MOE at least sbt ( rnon ti Mew to the rase of any or of of the leased Pr+errlkes. Notification shell include a and an explanation of the release. The release shall arty be valid al descriptionRugh the execution d a release of tease instrument with less sauna by leas through so surrender of a or arty poet d the teased ve Of the at ids toast. Prior to shall perform anon-t a inspection. if the wises.a see violate a tsi tfort of State Lands 6 herein. LESSEE shall �'*��`�toM conditions set forth�pcx�rgpt, changes. pay d costs necessary to remove any unauftrortsed improvements or 24. pec3HieutONS AGAINST LIONS OR 4OTHeR ENCtIMBRANCE% Fee title to the teased prees or mix is held by LESSOR. LSD shall not do or porn*aryy„ to be done whir, purports to create a d s including. notbufknifed eoff nature against the real property contained to *ire wed or against any interest of LESSOR therein.ortgages or' liensmamarile*MOO premises 25. Jammu INVALCIUY If arty term.covenant.condition Of provision of his lease shall be ruled by a©au/of competent Jurbchotion. to be invold, veld or l.tnenforceable. he remainder stall remain in full form and direct and shah In no way be affected.impaired Cc invorudoted 26' ei Execution of this lease in no way affecb any of the parties' d,Iatrore pursuant to mar 267.Ronda Statutes. The collection of artifacts or the disturbancear of ohaedogiear and Pilsionc sites on stole-owned lands b proNbited unless priore►thode 1lon has been obtained from the Deco tment of State.nividon of Keforicgl Resources. es. 27. ,OVEREIGNIY smear/go LAND: fib lease does not authorize the use of one rands located waterward of the mean or orrlrrary high water line of cry tire,river.dream street bay. estnary.or other wafies body or the avian or the ark spooe thereabove_ 2B. DUPLICATE OftreltiALS This tease is executed in is offOrtci each of which shell be considered an original for all purposes 2n This�setsor 1� between r the partite and shall only be anrerrded with thewritten approval 30. KEIEURANCLQUielEinfidata -LESSEE shill maintain the real property contained within the leased premise in a slate of good condition including.but not limited to. the teased eternises free of trash or Otter and meeting keepirrQ 3On situated. building and safely codes in the loap►'ron 4 1.ur2I-208/ 14:14 =•eN01EE ARTY E116INER1Mc +1062054121 r-81/ P e06/Ogi F-411 31. GOVERtillip LAW This lease shall be aovemed by and interpreted au-coming to the laws of the State of Florida. 32 MCIMIXAMKAI NOOK oubseaflons and other captions contained in this lease are for reietenoe purposes Ordy.and are i no way intended to Oast vibe, hd..H.„et,donne or&nit the sc-- -,extent or intent of this tease or any provisions thereof. c 1 .0,.5 .. ,'-. ,a. WHEREOF, the parties hereto have oaased this teas to be executed an the ig , ',\ ,�..i� !SOAR)OF COUNTY COMMISSIONERS esisidy sicre.;140.c....,.._ I "" "mi % JNCyor/CtteitllOh CANALIS HOLDING CORP_ • Marty Wei b,Presider, J►oa,.am„eni A we0 o?• ., AY �' ^- �DA f=? • 5 „,, . g 1 i L ic.; ;II:r '.) 10 Ff i C- 1_, \ i,..1 i 14 _ B-f '- -4 0 , 1 -....o....?„, 0 9.. x m xii f -&c,cg 40r il i ijd %tcl ' ''0711171 3 g Efig 1 _3,15”- K lirh, ' si r.. ‘ 11 -,1 , - : .0. t: .R..a. gj k 41 11; cr M 6 Iii _ ,k ' IS i . 1 eg.5.1 ge . --. E tly 2 I Lii 1.31 I t sili Di 1 1 pd. lg?<1 ':. r 1 ill i 6 t - 3 /13 w 3, 1 04.44 W :_i ni '5 o° I IT ! I I fE ..\,. z. " t Z A ti ifie ,,C HN ^^F 4 k Ei 1 i *4,7- 0 sle i . / it Ili P I:1, Hiiiil. I 11 t v -2. h ; q I .. , ._ PO -fk_ k , I g ,- CONSENT OF LANDLORD KNOW ALL MEN BY THESE PRESENTS THAT: MONROE COUNTY,a political subdivision of the State of Florida,the Lessor named in the forgoing Lease,hereby consent to the assignment of such Lease from CANALIS HOLDING CORP.,to EARTHMARK COMPANIES,LLC,a Florida limited liability company, subject all of the rents,agreements and conditions of said lease. IN WITNESS WHEREOF,the undersigned has signed and sealed this instrument on this 18th day of February 2004 . MONROE COUNTY Attest: _ ( , coy;-, ,, API�(ATi(>ll:tO TY ATTORNEY .,Z` .. - ,•PROVEID AS T" 4*; �- -�I�Al�i,�,, �i:",,: NY L. KO AGE, CLERK SUZA E A. 'TTON _ � ��, / �- *Ayr� DE CLERK 710 PHOENIX LAW PARTNERS (TUE)JAN 18 2005 17:16/ST. 17:12/No, 6660277589 P 2 CONSENT OF LANDLORD TO ASSIGNMENT KNOW ALL MEN BY THESE PRESENTS THAT: The Monroe County Board of County Commissioners, the Lessor in the lease entered into November 12, 1997, with Canalis Holding Corp., and previously assigned to Earthmark Companies, LLC, does hereby consent to the assignment of said lease from Earthmark Companies, LLC, to its wholly owned subsidiary Ocean Sunrise Associates LLC, a Florida limited liability company,subject to all the rents,agreements and conditions of said lease. SS WHEREOF, the undersigned has signed and sealed this instrument on this ).. V. Q a w t MONROE COUNTY BOARD OF v. COUNTY COMMISSIONERS ``I ' r 1:"KbLHAGE,CLERK Br- - Deputy crk Murray Nelson, ayor 00N110E COUNT"ATTCRO+„ F0V FO ‘U NN A. NU bN Assisi OOJr 7Y ATTORNEY EXHIBIT C Conceptual Site Plan Reference conceptual site plan as prepared by Erickson Associates/Hill Glazier Architects for"Mandalay MCU Application", SP-I, dated July 31,2007, and submitted with application. . 1 PARKING INF OW,....,A-H2N UN! 1 MATRIX , _., IAREA OR if 1:.:i "A''‘,"..3 A:.! '-"i • .- •!_-•!' . USE ' UN T 'YPE # OF UNITS. AREA ' I ROOVS ! i-'1-R .:CN.'-„:: ,,,...;!!_s: - •-•--- ''' •,,,:„!•,, TRANStENT !.:N TS •••••N- ! '1 r • - -- - - - RES1DENTIAL UNITS 22 UN'S 1.3 •"--•R ,\ - •A.....,.....01,5(.....e) RM-1? 2 1,200 STH ! LTRANSENI UNITS ' •...A,....r-.••0!....0) 9M-14 1 1,252 .17-- 1 r— _ _ ____. _ __ .._ - ! 1 BEDROOM 3 ,IN. S 1 1R l.N ' . RESIDEN'IAL 'iNITS - I I - -- -- -- --- - 1 : 2,282 SF RESTAURANT RN-32 ' 21 -------- !------4.-- T . _ . •iEDACOki 1....t.)%XX A) RM-23 2 1 2.772 SE OPEN SPACE --i 1 2,084 .47 : ! 1S!A:....ti ,..‘ •,;.... T.. . .......______ ____ r i , •1:13•WAA/0•18111•Ko 7 . Rv-22 8 i 2,217 SF H. I _I I_____ • C.)• .7- Cr)' '......4.,4,.., RM-32 4 1 2,282 Sr i Z I COVERL0 SPACE I 1..-d .14 1!-!!!!!!-S,„. ! -.7,,,,,0,.;,---•00-0-;;-1---P1,4-:33 i 4 I 2,796 SF -- I 1 TYPICAL PARKING SPACES roj' RANi---- TO I _ D .., —r-,,;.,.‹-t.,3—.:77—:•---- 7—, -34 I 2 i 2.960 SF ' !11 A. . i.___._ . _ 1 TOTAL DEMAND=58 SPACES , 1,-•Lu _________ .____ • 7----- • . V: cr • !NOTE- .NCLU4S 8 !---1.::-C..1.-,:i _ • ' , . - _ _. <'F-- •• 40-1,-..: 12 A00,11,:,-,_ •••-•,, '•' - • L .,- w (r) .f, ENLIE NOT -NCLUHL: .!. ...' • • -.. • •- ___•.,4 ..-,_ • ! 1 ..•;•- i, I• • :. r-77i ! . • SETBACK L:NE .•. • 1- 1 • • '''-PROPER 1 Y LINE _ B,CYCLE RACK ,.--- , ••• . • , , , ik... •-.. PIO _ • i \ ..- •,• •,,,,-.1•1• • .7- . : ,', r - • . .ii ,_ ' .. . "...44..-...:-.-at=ar....77' •.71.1.' • • • : A 1111 — r 11=1 . 1 ,2,' .wislimarinwillp • , , 1 ... . I —r ; a . , y„:11 . — ',fLE:, .,, Kau \ — —.. •,_ ______-_-__.7, -,111rear,44 POOL si.7;-1—.... . • -a• • .. •s:.\ . •-%••••••--- or'Ir" 111P0' 4•44110 • ri •;1 ;.. I.'i',/, ' ''''/ •.. ! , \ • 1 Al7P..,1\ 111=11C f ID, ., ,) ..__ _ _.. _ / . \ ----.--- • •• 4,,,, . — ,r,i' _r___-___._—_______•__ .- •__ ft__ '__ -,!!_., ' ( ! 0.4.,^1 et r; : I • . • `111111.r.,.,,.. - . •'•,-,- , •_, 1;-'''''''' •''•••:.,* CZ'. •• :1"'" ''''.. . ,• .--.• ., .. • ___._/ , ' • . _.• • _• • • • 1111.4,''''.Ly'' ..;;•7-.!'„,0 ! •--• •- • • --• -- -- - • - _____ . --ir— - — ---1_, —---:=--, _ __- -..__ ,.- 1.-A . "-•--'..7...! - __ • • • . I 01-1, I ---1, ,..- • - 1__• i_•-7t..lor-: . • --4,.... ....., 1,,,',... ''::: .. , I c.o.s..I.A.....4.116.•,.1,1C. , -----. . • . .- —.— --N.-- ..--- •-••-yiatiLLAWIJULVir,,_ . sEooNa _ NU E , ... • _L-.2L • -• • • " _I: . . ... , . __., — __— •_ ______ „. .... •- ,..1 I v 2, - ,--.ANT _\, / ':..E.20C,',:IC I- R : -12 ,CK i -- --- --- SIGN _________------ _---- ;1 2(.;.' F HE LANE— ----------- til SITE PLAN -PARKING PLAN I 3' :.‘,,V-ER:.'NE: RAD JS ------ CU'..—DE—SAC ;Dlr.,.•••:J?...,-.if: L) . 1 KEY _ _P' N ' '..' 'I"=200-,-1 r !dr ---1 —-- ---1 Mandalay ..1 . mcu Application 1 ,....H.,,:,11 I I.• I I''''''....-''''''' Key Largo,Florida EA 1HG d DULY 31,2007 .. 4 I EXHIBIT D Legal Description of Land to be Dedicated to Monroe County Part Tract 5A, Amended Plat of Mandalay Subdivision, Plat Book 5-25, Key Largo, Monroe County,Florida RE#00554940-000300 Section 06, Township 62, Range 39 . 164 .• Property Information for 1680435 Page 1 of 2 • MONROE COUNTY PROPERTY APPRAISER PROPERTY INFORMATION FOR: Alternate Key: 1680435 RE Number: 00554940-000300 — Property Details OWNER OF RE('ORI) PROPERTY MAP KEY.\'.-Si)(AA l'ES 1 'ID i2No;I NIVERS1 I Y DR STU-I)i) AN 14 4(I 5,•11'ERS FL 334(17-53.16 ' P111-51c41..L.00ATIQN f<Y (-4L-4 (1 . 45 • 0, LEGAL PLWRIETISIM • AMD PC Al 14:NI.ANDALAY KEY 1,,All it•11)115-25 1,1 \ '4') -FR 5A()1(56.2-41}, OR I 028-35-RX---ER;All-1)OR 1 S I.;• cll lb 4) * co SErl'ION,TOWNSHIP,FLANGE ' •(--9 , ''/ w . \,.... :AFFORDABLE 1-1()USIN_G NA') . .• " • MILI-AGE_GROVP (9 " 04 • 500K , c.1 • ,43 ,. 4. . Pc CODE , l 41's • cP%t> 0 . „ .. in-VAC\\I 1 f ININIFR.C.I.Al_ - [ Land Details LAND lin CODE FRONTAGE DEPTH0EA :: TNp AugA.I 0.57 Ai.... -Parcel Value History T MiscELL4Neotis ENEntPlioNs(NQT TAX ROLL YEAR BUILDING LANJ) 4.ST T.ANABLE INIPROVEMEN'TS IN(.1(4)ING SENIORS) - 2006 (; • 1-.L0.2 :"•,162 „ 3-•••;.;;',..i 204)5 ;, ,• • 3".‘;•()2 37,c)(•,t ,, 2004 I, . 3"(fa,: 2003 44 '' 41 ..454) 19.071 21)02 I: i: 4 :-15f; 24101 ,; :'; -N. -'•(! 2./.1)7;} o ":(:;.117;; zogg) ,. . ;, .,N.if.i. 2tio-(1 I 2.\,.1-'• i 94K; i.: ,, -,N.4.5(, 2'.' -,, ,; 2.'t. •"' -; ... 4-( :!.1'..,) i S .1'11.14-.1i I'0)6 s• I .1,1' 11,11):,..•• j:.1:•,a ::•••. :,,, , , i',,, . . :- ..,, If: : .• ;N..4'' ' !...,: . .. , !.;•,i ., ,:..4!'.. . ... i http://ww-w.rucpatl.org/datacenter/search/record.asp 8/16/2007