Item M6
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 18. 2008
Division: Commissioner Dixie Spehar - District 1
Bulk Item: Yes XX No
Staff Contact Person: Commissioner Dixie Spehar
AGENDA ITEM WORDING:
Approval of the Consent qf Monroe County, Florida to the filing of the Declaration of Protective
Covenants, Restrictions and Easenients of Islander Village, an affordable housing project.
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 ofa 99-year lease for construction and development of an
affordable housing project. On 4/18/2007, the Board approved a Ground Lease Agreement with
Islander Village, LLC. The Consent of Monroe County, Florida to the filing of the Declaration of
Protective Covenants, Restrictions and Easements of Islander Village is being presented pursuant to
the Ground Lease Agreement approved by the Board 4/18/2007 (specifically Section 12.04, Required
Notice of Restrictions).
PREVIOUS RELEVANT BOCC ACTION:
7/19/2006 BOCC approved Agreement for Sale and Purchase and 99-year Lease
7/19/2006 BOCC approved Resolution No. 273-2006 reserving (89) affordable dwelling unit allocations
for this project
4/18/2007 BOCC approved corrected Agreement for Sale and Purchase (correcting the name of the
Seller to reflect Drive-In, Ltd. - previously shown as Islander, LLC.) with a leaseback ("Ground Lease
Agreement") to Islander Village, LLC retroactive to the original date of7/19/2006
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: N/A
BUDGETED: Yes
No
COST TO COUNTY: N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNTPERMONTH Year
o
APPROVED BY: County Atty ?~ OMB/Purchasing _ Risk Management ~
DOCUMENTATION:
Included XX
Not Required_ 1'Vr
AGENDA ITEM#~ }1b
D1SPOsmON:
Revised 2/05
,
This inslmment prepared by:
John R. Allison. III
The Allison Finn, PA
6803 Overseas Highway
Muatlton, Florida 33050
))ECLARA TION OF PROTECTIVE COVENANTS, RESTRICTIONS AND EASEMENTS
OF
ISLANDER VILLAGE
THIS DECLARATION OF PROTECTIVE COVENANTS, RESTRICTIONS AND
EASEMENTS OF ISLANDER VILLAGE (this "Declaration") is made by ISLANDER VILLAGE,
LLC, a Florida limited liability company, hereinafter referred to as "Developer" or "Declarant."
WITNESSETH:
WHEREAS, Declarant is the holder of a 99-year leasehold interest in the real property (the "Property")
pursuant to that certain Ground Lease Agreement (the "Ground Lease Agreemenf') between Declarant and
Monroe County, which Ground Lease Agreement has been recorded in Official Records Book 2301 at Page
365, Public Records of Monroe County, Florida. The Property is located io Monroe County, Florida and is
more particularly described in Exhibit A, annexed hereto; and
WHEREAS, the Ground Lease Agreement, a copy of which is attached hereto as Exhibit B, provides
for the following required notice:
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 ERRECTED
THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS 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 BOOK2301, PAGE 365 OF THE PUBLIC RECORDS OF
MONROE COUNTY, FLORIDA; and
WHEREAS, in order to develop the Property into a residential community known as "Islander
Village" (hereinafter, "Islander Village") and preserve and enhance the values and amenities ofIslander Village
and the architectural integrity and standard of Islander Village, it is necessary to declare and subject the
Property to certain land use covenants, easements, restrictions, reservations, regulations, burdens and liens and
to delegate certain powers, controls, easements and other rights to the home owners' association to be formed
for such purposes; and
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WHEREAS, Dedarant has caused the Association, the Members of which shall be the respective
Sublessees of Parcels and the Dwelling located within the Parcel in Islander Village and the Declarant, to be
fonned for the purpose of exercising the functions aforesaid; and
WHEREAS, Declarant intends to develop and/or operate all ofIslandcr Village pursuant to a general
plan, the site plan for which is attached hereto as Exhibit C, and subject to certain covenants and restrictions,
including without limitation, restrictions for affordable housing, all runniug with tille to the Property as
hereinafter set for1ll.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein,
Declarant hereby declares that Islander Village shall be held, used, transferred, subleased, demised and
occupied subject to the covenants, easements, restrictions, reservations, regulations, burdens and liens
hereinafter set forth and that the provisions oflllis Declaration shall be covenants running with llle lands which
comprise Islander Village, i.e., the Property, and shall be binding on all parties having any right, tille or interest
in Islander Village or in any portion thereof, their heirs, personal representatives, successors and assigns and
shall inure to each portion ofIslander Village. The easements, restrictions, covenants, conditions, reservations,
liens, charges and equitable servitudes set forth herein shall (i) run with the title to Islander Village or any
portion thereof (including the respective appurtenances thereto) and the Common Properties and shall be
binding upon and inure to the benefit of all persons having any right, title or interest therein, or any part thereof,
their heirs, executors, administrators, personal representatives, successors and assigns; (H) shall, without
limiting tlle generality of the foregoing subparagraph, inure to the benefit of and be binding upon Declarant, its
successors-in-interest, and each Owner, and his (her or tlleir, as the case may be) respective successors-in-
interest and his (her or their, as the case may be) agents, servants, employees, contractors, tenants, invitees,
licensees and guests; and (Hi) may be enforced by any Owner, and such Owner's successors-in-interest,
including a mortgagee who has acqnired the interest of any Owner by foreclosure or by deed in lieu of
foreclosure, by the Association, and by the Declarant so long as it owns any portion of the Property (including,
but not linlited to, any Lot, Parcel or other portion of the Property).
ARTICLE I
ESTABLISHMENT OF ISLANDER VILLAGE
l.l Establishment. Islander Village is hereby established by Declarant, and the Property is
hereby governed, restricted and in all respects encumbered by the Ground Lease Agreement, the Master
Covenants and this Declaration and all amendments hereafter made in accordance with the provisions herein.
1.2 Encumbered Prooertv. The real property, which is hereby encumbered by the Ground
Lease Agreement, the Master Covenants and this Declaration, is located in Monroe County, Florida and more
particularly described in Exhibit A armexed hereto shall be held, transferred, subleased and occupied subject to
the Ground Lease Agreement, the Master Covenants and this Declaration.
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1.3 De.velopment Plan. The property described in Exhibit A herein is being developed as an
affordable housiug commwlity to be known as "Islander Village." Islander Village consists of eighty-nine (89)
lots (each a "Lot" or "Parcel"). Each Parcel will be improved with a home (each, a "Dwelling"). Each Parcel,
including the Dwelling constructed thereon, will be subleased by an Owner, as hereinafter defined. Reference
herein to properties witllin Islander Village shall not create mlY right, title or interest tllerein or constitute
constructive notice thereof of any right, title or interest by any person or persons claiming by, through, under or
against Declarant unless and 11l1til said property, or any portion thereof, has been subleased by the Declarant to
an Owner. Notwithstanding tllat an Owner may havc acquired a possessory interest through a sublease
agreement in a Parcel as tllen depicted in a site plan proposed by Declarant, any relimlce given to such site plan
by an Owner shall not prohibit Dcclarant from modifying tile site plan for Islmlder Village. Specifically,
Declarant reserves all rights and powers provided in this Declaration, including, without limitation, the right to
mnend thc site plan mld those additional rights, reservations mld exemptions more particularly enwnerated in
Articles 11 and 12 hereof.
ARTICLE 2
DEFINITIONS
2.1 Interpretation and Flexibility. The defined terms set forth below shall apply to all capitalized
tenns used in tllis Declaration unless the context shall require a contrary interpretation. In the event of any
ambiguity or question as to whether any person, entity, property or improvement shall fall within any of the
defmitions contained in this Article, Declarant's determination (as evidenced by a recorded amendment to this
Declaration) shall be binding mld conclusive.
2.2 "Affiliate" shall mean, when used to modifY the term "Declarant", any person or entity that
directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under COllllllon
control with, the Declarant. The term "control" as used in this definition means the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of person, corporation,
partnership or other association, whether through the ownership of voting securities, by contract or otherwise.
2.3 "Affordable Restrictions" shall mean those restrictions encumbering the Parcels as more
particularly set forth in the Ground Lease Agreement, as amended from time to time.
2.4 "Articles" means the Articles ofIncorporation of the Association which have been filed in the
office of the Secretary of State, State of Florida for Islander Village Homeowners' Association, Inc., a Florida
not-for-profit corporation, as the same may be amended from time to time.
2.5 "Assessment" means a share of the funds required for payment of Common Expenses, which
from time to time is charged to the Parcel Owner.
2.6 "Assigns" means any person to whom some or all of an Owner which have been validly
transferred by sale, lease, mortgage or otherwise.
2.7 "Association" means the Islander Village Homeowners' Association, Inc., a Florida not-for-
profit corporation.
2.8 "Board of Administration" or "Board" means the board of directors responsible for
administration of the Association.
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2.9 "Buildin2(s) " means the cluster building(s) fur two or mure residential dwellings situated
within Islander Village.
2.10 "Bv-Laws" means the by-laws of the Association, as they exist from time to time.
2.11 "Committce" means the Architectural Control Committee.
2.12 "l."::ommon Expenses" mcans all expenses and assessments properly incurred by the Association
for Islander Village, including, without limitation:
A. expenses of operation, maintenance, repair or replacement of Common Properties or
Limited Common Properties;
B. costs of carrying out the powers and duties of the Association, including any
assessments by the Master Association; and
C. any other expenses designated as Common by this Declaration or the By-Laws.
2.13 "Common Properties" means those portions of Islander Village excluding all Parcels but
including easements, sidewalks and walkways, paths, green belts, fences, driveways, bike racks, pavilion,
community pool, pool decking and pool bathrooms and Association-owned personal property used in
connection with Islander Village.
2.14 "Common Receipts" means the following items collected by the Association on behalf ofthe
Members:
A. funds collected from Owners for payment of Common Expenses or otherwise; and
B. receipts designated as common by law, this Declaration or the By-Laws.
2.15 "Common Surplus" means the excess of all Common Receipts over Common Expenses.
2.16 "County" means Monroe County, Florida and its duly authorized agencies and authorities, as
applicable.
2.17 "Declarant" or "Developer" means: (a) Islander Village, LLC, a Florida limited liability
company, its successors and those to which Declarant's rights hereunder shall be assigned specifically; and (b)
for purposes of taking actions on Declarant's behalf under this Declaration, Declarant's duly appointed agent(s).
Declarant shall have the right to assign all or a portion of its rights hereunder in connection with all or a
portion of Islander Village. In the event of any partial assig1llllent, the assignee shall not be deemed "a
Declarant," but shall have all such rights as specifically assigned to it. As used with regard to Declarant,
"successors and/or assigns" specifically does not include transferees of individual Parcels.
2.18 "Declaration" means this Declaration of Covenants, Restrictions and Easements ofIslander
Village, including all Exhibits annexed hereto, as well as all amendments to this Declaration, if and when filed
of record.
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2.19 "J)wclling" means one or more of the eighty-nine (89) residential dwellings within Islander
Village, each of which is located within a Parcel that is intended to be subleased to au Owncr and thc residential
dwelling that shall be part of the prcmiscs sublcased to the Owner.
2.20 "Ground Lease Agreement" means that certain 99-year lease agrcement for the Property
between MOllioe County and Declarant recorded in Official Records Book 2301 at Page 365, Public Records of
Monroe County, Florida.
2.21 "Improvement" means any structure or artificially and intcntionally crcated condition, togetller
Witll all appmtenances thereto, of every type and kind located witirin Islander Villagc, including, witllout
limitation, buildings, walkways, sprinkler pipes, roads, sidewalks, alleys, street lights, driveways, parking areas,
fences, screening walls, retaining walls, stairs, decks, landscaping, windbreaks, planted trees and shrubs,
conduits for telephone lines, storm drainage, cable television lines, site lighting poles, signs and shared
equipment and/or utility -type services such as water, sewer and electrical systems, and other commonly shared
eqnipment and/or ntility-type services, if any.
2.22 "Institutional Lender" means any bank, insurance company, FHA- approved mortgage lending
instinltion, recognized pension fund investing in mortgages or federal or state savings and loan association
which has a mortgage lien upon any Parcel or which has acquired and holds title to such Parcel eitirer as a result
of its foreclosure of any such mortgage lien or by its receipt of a deed in lieu of foreclosure.
2.23 "Limited Common Prooerties" means those Common Properties, which are reserved for
tire use of a certain Parcel or Parcels to the exclusion of all otirer Parcels, i.e., tire driveway for some but not
all Parcels as depicted in Exhibit C, assigned parking space(s) for Parcels as depicted in Exhibit C, and tire
Crickets joining tire roofs of adjoining Dwellings as provided in Section 16.9 and as depicted in Exhibit D.
2.24 "Lot" or "Parcel" means tire parcel ofland which is tire footprint of tire Dwelling (expanded to
2" beyond tire drip-line of tire roof structure for tire Dwelling) as shown in Site Plan for Islander Village,
Exhibit C attached hereto, which will be subleased by tire Parcel Owner, and any and all improvements tirereon.
2.25 "Master Association" means tire Master Association under tire MasterCovenauts, i.e., Islander
Village and Estates Master Property Owners' Association, Inc.
2.26 "Master Covenants" means iliat certain Declaration ofCovenauts, Restrictions and Easements
for Islander Village and Estates Development, as recorded in Official Records Book _, Page _, Public
Records of MOllioe County, Florida.
2.27 "Member" means member of tire Association.
2.28 "Owner" means tire record sublessee of the Parcel, whetirerone or more persons or entities hold
the leasehold interest to any Parcel and tire Dwelling located tirereon.
2.29 "Prooerty" means tire real property described in Exhibit A, as tire same may be amended
from time to time by Declarant by acquiring (eitirer in fee simple or leasehold interest) otirer portions of
real property or by deleting portions of real property from tire property encumbered by tire Master
Covenants and tiris Declaration.
2.30 "Surface Water Management Svstem" means a system which is designed and constructed
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or implemented to control discharges which are necessitated by rainfall events, incorporating methods to
collect, convey, store, absorb, inhibit, treat, use or reuse, alter to prcvent or reduce flooding, over drainagc,
environmental degradation, and water pollution or otherwise affect the quantity or quality of water
discharges.
2.31 "Voting Interests" means thc right to vote the respective votes assigned to Parcels.
ARTICLE 3
PROPERTY RIGHTS
3.1 Owner's Easement of Enioyment. Subject to the terms and conditions of the Ground Lease
Agreement, every Owner shall have a non-exclusive, common right and easement of ingress and egress and of
cl~oyment in, to and over, and use of the Common Properties which easement right shall be appurtenant to and
shall pass with but shall not be separated from title to every Parcel within Islander Village, subject to the
following conditions:
A. The right of the Association to reasonably limit the number of guests, invitees or
licensees using the Common Properties, except as provided by law or herein to the contrary.
B. Uniform rules and regulations established by the Association from time to time
pertaining to the use of the Common Properties and the Parcels including, but not limited to, all parking
restrictions established by the Association from time to time within The Properties.
C. The right of the Association, in accordance with its Articles of Incorporation, Bylaws
and this Declaration, with the vote or written assent of two-thirds (2/3rds) of the votes of Members in the
Association, to borrow money for the purpose of improving the Common Properties and facilities and in
cOlmection therewith, and to mortgage, pledge or hypothecate any or all of its real or personal property as
security for money borrowed or debts incurred, provided that the rights of such mortgagee shall be subordinate
to the nse rights of the Owners hereunder.
D. The right of the Association to suspend the right to use the Common Properties (except
means of ingress and egress) of an Owner for any period during which any Assessment against such Owner's
Parcel remains unpaid and delinquent and for a period not to exceed thirty (30) days for any single infraction of
this Declaration or the rules and regulations of the Association, provided that any suspension of such voting
rights or right to use the Common Properties shall be made only by the Board as provided in the Bylaws of the
Association.
E. The right of the Association to dedicate, release, alienate, transfer or encumber all or
any part of the Common Properties to or in favor of any public agency, authority or utility at any time and from
time to time for such purposes and subject to such conditions as may be agreed to by the Members. So long as
Declarant owns any portion of the Property, such dedication, release, alienation or transfer shall be effective
without the approval, vote or written assent of the Members in the Association. At such time as Declarant owns
no portion of the Property (or any part of future added real estate subjected to this Declaration so the term
"Property" as used herein includes such added real estate), no such dedication, release, alienation or transfer
shall be effective unless approved by the vote or written assent of two-thirds (2/3rds) of the votes of Members
in the Association.
F. The right of the Declarant (and its agents, customers, representatives, servants,
employees, licensees and invitees) to the non-exclusive use of the Common Properties, the facilities thereof,
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and an easement on, ov~r, under and through the Common Property or any portion lhereofwithout charge, for
thc purpose of constmction, reconstruction, repair and maintenance of the Improvements including, but not
limited to, utility Iincs and fot sales, display, access, ingrcss, egrcss, exhibit and other purposes.
G. The right ofthe Association (by action of the Board) to reconstruct, replace or refinish
any Improvement ot portion thereof upon the Common Properties, in accordance with the otiginal design,
finish or standard or construction of such Improvement, or of the general Improvements within the Common
Properties, as the case may be.
H. The right of the Association to replace destroyed trees or other vegetation and plant
trees, shTllbs and grOlllld cover upon any portion of the Common Properties or Parcels and to maintain same and
any systems serving same including, bnt not limited to, irrigation and sprinkler systems, if any.
1. The right ofthe Declarantto grant such other casements and rights over and upon the
Common Properties as Declarant, in its sole discretion, deems appropriate, including, without limitation, rights
of the public to access by, through, across and upon the Common Properties (which easements and rights shall
be similarly granted by the Association).
J. The rights set forth in Article 16 hereof.
K. The rights set forth in Article 17 hereof.
L. The right of Declarant and the Association, subject to the provisions of applicable law,
to restrict access, ingress and egress to and from Islander Village by maintaining a controlled entry system at
locations designated by Declarant or the Association from time to time and such other restrictions as the
Declarant or the Association shall impose from time to time.
M. Such other matters affecting title to the Property within Islander Village and rights of
governmental authorities.
N. An irrevocable power of attorney, coupled with an interest, of all Owners in favor of
Declarant, for as long as Declarant owns any Parcel within Islander Village, to exercise any of the foregoing or
other rights or discharge any of the foregoing or other obligations which may be set forth herein for the benefit
of Declarant or as an obligation of any Owner. This power of attorney shall be self-operative and shall not
require any additional instrument to effect same. An Owner, by acceptance of a deed, thereby acknowledges
and confirms (and, to the extent required, grants) the power of attorney set forth herein.
O. Anything to the contrary herein notwithstanding, no action authorized in this Section
3.1 shall be taken without prior written consent of the Declarant as long as the Declarant owns any property or
Parcel within Islander Village.
3.2 Delegation of Use: Use bv Others. Any Owner may delegate by lease, in accordance with the
limitations of Section 12.05 of the Ground Lease Agreement, this Declaration and with the By-Laws, such
Owner's right of enjoyment of the Common Properties to such Owner's permitted renters (but once so
delegated, any such Owner shall not have such rights until the applicable lease expires, unless such Owner
owns other Parcels where such rights were not so delegated). All guests, invitees and licensees of Owners shall
also be entitled to use the Common Properties, subject to applicable rules, regulations and limitations on such
rights.
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3.3 Parking Restrictions.
A. All parking spaces shall be limited to designatcd parking spaces within Islander
Village, as shown in the Islander Village Parking Plan, Exhibit C attached hcrcto, and additional gnest parking
spaces which shall be available on first-come, first-serve basis. Parking spaces are nnmbered in Exhibit C, e.g.,
parking space designated as PS I shall be a Limited Common Property for Parcel I, etc. In addition, parking
spaces may be provided by Declarant for some, but not all Parcels within the bOlmdaries of the Parcels on
ground level under the Dwelling stmclure or within the front driveway area for the Dwelling.
B. Parking shall be regulated pursuant to rules and regulations adopted by the Association
from time to time.
3.4 Walkwavs. Declarant, and after conveyance ofthe Common Properties to the Association,
the Association, shall have the right to designate and construct walkways over the Common Properties.
A. Such walkways maybe designated by various means including signage and by means
of tile materials used to construct such walkways, e.g., boardwalk slates, concrete, asphalt, etc. After the
designation by signage or construction of the walkways, Declarant shall have the continuing right from time to
time (until conveyance of the Common Properties to the Association) to modifY, alter, discontinue on a
temporary or permanent basis, or relocate walkways. After the Declarant conveys the Common Properties to
the Association, the Association shall have the right to modify, alter, discontinue on a temporary or permanent
basis, or relocate walkways.
B. All walkways located on the C01ll1llon Properties shall be restricted to pedestrian use as
a walking path for the limited purposes of light exercising and recreational strolling.
C. The following restrictions shall apply to the walkways:
(I) No vehicles of any kind shall be permitted on walkways except for strollers for
small children, wheel chairs and other manual or electrically powered apparatuses for the persons disabled by
physical handicaps or suffering from other disabling infirmities and electrically powered carts owned or
approved by the Association for the maintenance operation and control of the Parcels;
(2) No person shall loiter or otherwise use any portion of the walkways for any
extended period of time, it being the intent of these restrictions to limit gatherings in one location and to
promote the use of walkways as a peaceful, designated path for the purpose of quietly meandering through
Islander Village while enjoying the scenery;
(3) No commercial activities of any kind shall be pennitted on the walkways; and
(4) No entertainment of any kind shall be permitted on the walkways.
D. The Association shall adopt such additional restrictions on the use of walkways as the
Board shall deem in the best interest of the Owners in order to balance the protection of Owners, their guests
and renters, from urmecessary noise or view obstructions while occupying their Parcels with the opportunity of
all Owners, their guests and invitees, to enjoy the Common Properties.
3.5 No Waiver of Use. No Owner may release his Lot or Parcel or from assessments and liens
hereunder by waiver of the use and enjoyment of the Common Properties.
B
3.6 Convevance of thc Common Propertics After all Parcels have been snblcased to purchasers
other than a Declarant Affiliate, or sooner at the option ofthe Declarant, thc Declarant shall transfer its interest
in the GrOlUld Lease Agreement for all ofthe Common Properties to the Association, and the Association shall
accept snch assignment and aSSllllle, in writing, the obligations of the GrOlllld Lease Agreement. The COlllmon
Properties shall be transferred by Declarant pursnant to an assiglllllent oflease as approved by Monroe Connty
pursuant to the Ground Lease Agreement. Such conveyance shall bc frec and clear of all liens and
enclllllbrances, and subject only to:
A. All taxes and assessments for the year of conveyance and subscqucnt years;
B. Restrictions, conditions, easements, agreements, limitations, and reservations of record,
inclnding the Master Covenants;
C. Perpetual non-exclusive easements from and to any portion of the Property within
Islander Village owned by the Declarant or its assignees at the time of the conveyance, which easements shall
be for the use, benefit and enjoyment of Declarant, the Owners, its or their guests, invitees, licensees,
successors and assigns;
D. This Declaration, as the same mal' be amended from time to time; and
E. The GrOlllld Lease Agreement, as the same mal' be amended from timc to timc.
3.7 Declarant's Right to Encumber. Until the Declarant transfers its leasehold interest in the
Common Properties to the Association, Declarant shall have the right to mortgage the Common Properties for
the purpose of financing the development and construction thereof, or for any other purpose, provided that (a)
the lender recognizes the rights of the Owners hereunder, (b) the Common Properties shall be free of mortgages
at the time of conveyance to the Association, and (c) the Association or any of the Members (other than
Declarant, if it so chooses) shall not be personally liablefor payment of the debt secured by such mortgagees).
3.8 Common Properties for Benefit of Owners. The Declarant, and after conveyance to it, the
Association, shall hold the leasehold title to (and such rights in) the COllllllon Properties for the benefit of those
persons entitled to use same under the provisions oftms Declaration (which shall be applicable from and after
the date this Declaration is recorded whether or not the Common Properties are then owned by the Association).
3.9 Taxation of Common Properties. It is the intent of this Declaration that the Tax Assessor of the
County shall include all ad valorem taxes for the Common Properties within the tax bi11 for the individual
Parcels. In the event tlle Common Properties are taxed for the Common Properties, the Association shall pay
such taxes and assess the Parcels on a prorata basis based upon the current ad valorem tax assessments as
determined by the county tax assessor as part of the Common Expenses.
3.10 Construction Activities. Declarant, its agents, contractors, subcontractors, licensees and/or
other designees may, from time to time, be engaged in construction, excavation, and other activities within or in
proximity to Islander Vi11age. By acceptance of a deed or other conveyance or mortgage, leasehold, license or
other interest, each such Owner, lender and user and their respective successors and assigns automatically
acknowledge, stipulate and agree:
A. None of the aforesaid activities shall be deemed a nuisance or offensive activity;
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B. Not to enter upon or allow other persons under their direction or conlTOI to enter upon
any portion ofIslauder Village where such activity is being conductcd (even if not bcing conducted actively at
the time of entry, such as at night or otherwise duriug non-working hours); aud
C. Declaraut, its agents, contractors, subcontractors, licensees and designees, shall not be
liable for any direct or consequential losses, damages, injuries or deaths arising from or relating to d,e aforcsaid
activities.
3. ] I Declarant's Rescrved Rights. All of d,e foregoing property rights are subject to d,e rights
reserved by the Declarant in this Declaration including those rights and exemptions in Articles II and 12
hereof.
3.12 Prohibition of Subdivision of Parcels. Unless pre-approved in recordable fom, by Declarant
and Monroe County, no Lot or Parcel shall be subdivided or broken into smaller parts than as conveyed or
constructed by Declarant and described in the surveyor's certificate attached to the deed of conveyance from
the Declarant to the transferee-Owner of such Lot and Parcel, nor shall any Lot or Parcel or portion thereof be
added to or incorporated into any other Lot or Parcel.
3.13 Assigmnents: Convevancing of Parcels and Dwellings. Each Parcel and the Dwelling located
within the Parcel shall be transferred toged,er as appurtenances to each other and shall not be transferred
separately whereby the Parcel would be separated from d,e Dwelling. Each Parcel shall be legally described
and subleased with the form of reference as follows:
Parcel of Islander Village, according to the
Declaration of Protective Covenants, Restrictions and
Easements oflslander Village, as recorded in Official
Records Book _, at Page _ of the Public Records
of Monroe County, Florida.
Such description shall include an attachment as an exhibit that shall describe the Parcel by a metes and bounds
description.
All assignments and transfers of Parcel subleases, including the Dwelling hnprovements, including, without
limitation, transfers upon the death of a Parcel Owner whether by devise or otherwise, shall be subject to
Article XII of the Ground Lease Agreement with Monroe County.
3.14 Renting of Parcels bv Parcel Owners. Any renting by a Parcel Owner of the Parcel
Owner's Dwelling and/or Parcel is restricted to the permitted rentals as set forth in Section 12.05.e of the
Ground Lease Agreement, including, without limitation, the requirement that the rental agreement be in writing
and contain the following warning prominently set forth in the writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON
SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83 FLORIDA
STATUTES, THE LESSOR SHALL NOT BE LIABLE OR RESPONSffiLE FOR
STORAGE OR DISPOSITION OF THE LESSEE'S PERSONAL PROPERTY.
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Any unauthorized offer to rent Parcel Owner's Dwelling 'lid/or Parcel shall be deemed to become the
subject of an irrevocable offer to sell the Parcel Owner's Dwelling andlor Parcel and thus subject to the
right of first refusal provisions of Aliiclc XII of the Ground Lease Agreement.
3.15 Right of First Rcfusal. In order for any Parccl Owncrto scll thc Parccl Owncr's Dwclling
and/or Parcel and assign thc Subleasc, thc Parcel Owner shall comply with thc Right of First Rcfusal
rcquirements as sct forth in Scction 12.05 of the Ground Lcasc Agreement, including, without limitation, thc
requircment that notice be given to Monroe County, as Lcssor, with the information on the proposed sale
rcquired Scction 12.05 of the GrOlllld Lcase Agreement.
ARTICLE 4
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
4.1 Automatic Membership. Every Owner automatically shall be a Member of thc Association
upon becoming thc Owner of such Parcel and shall rcmain a member until his ownership ceases for any reason,
at which time his membership shall cease automatically. Othcr than as an incident to a transfer of leasehold
title to a Parcel, membership in the Association shall not be transferable and any attempted transfer shall be null
and void. No person, firm or corporation holding any lien, mortgage or other encumbrance upon any Parcel
shall be entitled, by virtue of such lien, mortgage or otller encumbrance to membership in the Association, or to
any of the rights or privileges of such membership.
4.2 Limitation Upon Liabilitv of the Association. Notwithstanding its duty to maintain and repair
the Common Properties, the Association shall not be liable to Owners for injury or damage, other than the cost
of maintenance and repair caused by latent conditions of the Common Properties. Further, the Association shall
not be liable for any such injury or damage caused by defccts in dcsign or workmanship or any other reason
cOll1lected with any additions, alterations or improvements made by or on behalf of any Owner(s).
4.3 Declarant's Representation on the Board and Voting Rights. Declaration reserves unto itself
the following rights notwithstanding any other provision in this Declaration, Articles or By-Laws.
A. Members other than the Declarant are entitled to elect at least a majority of the
members of the Board when the earlier of the following events occurs:
(I) Three months after ninety percent (90%) of the Parcels that will ultimately be
operated by the Association have been subleased to Members; or
(2) Such other percentage ofthe Parcels has been subleased to Members, or such
other date or event has occurred, as is set forth in the governing documents in order to comply with the
requirements of any govefll1llentally chartered entity with regard to the Declarant's mortgage financing of the
property or any portion thereof; or
(3) For purposes of this section, the phrase "Members other than the Declarant"
shall not include builders, contractors, or othcrs who purchase a parcel for the purpose of constructing
improvements thereon for resale.
B. The Declarant is entitled to elect at least one member of the Board of the Association as
long as Declarant holds for sale in the ordinary course of business at least one Parcel. Afier the Declarant
rclinquishes control of the Association, the Dcclarant may exercise the right to vote any developer-owned
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voting interests in the sal)le manner as any other Member, except for purposes of reacquiring control of the
Association or selecting the majority of the members of the Board.
4.4 Declarant's Right to Transfcr Voting Rights. Declarant shall have the right to transfer all or
any portion of its voting rights and/or any or all of its rights to appoint mcmbers of the Board and hereby
reserves the right to transfcr any or all of its voting rights and any or all of its rights to appoint members ofthe
Board. Thc nwnber of votes entitled to be cast, if any, and/or the number of members of the Board entitled to
be appointed which are transferred by Declarant shall be set forth in the sublease agreement or other instrument
of conveyance by the Declarant in Declarant's sole and absolute discretion. Such transferee, upon becoming the
record sublessee of any portion of the Property shall be entitled to exercise tlle privilege of voting and/or of
appointing such number of members to tlle Board as designated as aforesaid in tlle sublease agreement or other
instrument of conveyance. The voting rights so transferred by Declarant shall not be thereafter assigned or
transferred by such transferee of Declarant without Declarant's written consent, which consent may be
unconditionally witllheld. Anything to the contrary herein notwitllstanding, (a) Declarant shall have the right to
transfer its voting rights to a transferee who mayor may not be an Owner, including, without limitation, any
institutional lender, and (b) the restriction of transferring voting rights as stated herein shall not be imposed
upon or affect any institutional lender acquiring a Parcel through foreclosure, deed-in-lieu of foreclosure or
similar acquisition of interest.
4.5 Voting Rights. Subjectto the Declarant's voting rights in Section 4.3 hereof, each Lot or Parcel
shall be entitled to one (1) vote to be cast by the Owner. When more than one person holds an interest in a
Parcel tlle vote(s) for such Parcel shall .be cast by the Owner designated in a certificate filed with the
Association and signed by all persons owning an interest. The vote(s) for each Parcel is (are) indivisible.
Membership in the Association shall be appurtenant to and may not be separated from ownership of a Parcel.
Transfer of ownership, either voluntarily or by operation oflaw, shall terminate membership in the Association,
and said membership shall thereupon be vested in the transferee. Notwithstanding anything contained in this
Declaration to the contrary, until such time as Declarant shall have subleased all the Parcels (whether or not
improved with Dwellings) contained within Islander Village, exclusive of conveyances to entities related to or
affiliated with Declarant or conveyances to other Declarants, or until Declarant sooner shall elect to transfer
control to the non-Declarant members of the Association, Declarant shall have the sole and exclusive right to
elect all officers and directors of the Association. During the period of Declarant's control, all Owners other
than Declarant shall have a non-voting membership in the Association unless this provision is waived in writing
by Declarant. In the event Declarant, in its absolute discretion, elects to turn over control of the Association to
the Owners prior to Declarant's required turn over, Declarant shall retain the rightto appoint one (I) Director to
the Board for so long as Declarant or an entity related to Declarant owns a Parcel within Islander Village,
including any reacquired Parcel.
ARTICLE 5
DUTIES AND POWERS OF THE ASSOCIATION
5.1 In General. The Association shall govern, operate, control, manage and maintain the Common
Properties, pursuant to the terms and provisions of this Declaration, the Articles of Incorporation and the By-
Laws. The Association shall pay all real property ad valorem taxes and all govemmentalliens assessed against
the Common Properties. The Association shall further have the responsibility to hire personnel and to maintain,
repair, and replace the Common Properties, including, without linlitation, landscaping, irrigation, fencing,
community area, street lights and the community sign (if any), at the expense of the Association.
5.2 Additional Powers of Association. The Association, acting through the Board, shall also have,
subject to any priority rights of Declarant, the power and duty to:
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A. Maintain, protect, repair, and replace the Common Properties, including without
limitation, and all Improvements thereon, if any, in accordance with the provisions of this Declaration:
B. Prcscrvc and enhance the natural beauty ofIslander Village and the portions of the
Parccls that are contiguons to the landscapcd areas ofthe Limited Common Propcrties and Common Properties
exclusive of the Dwellings of the Members of this Association;
C. Promote the health, safety and social welfare of the Owners, their guests and invitees;
D. Own, operate, govem, administer and manage the Common Properties;
E. Control the specifications, architecture and design appearance of Islander Village,
including, but not limited to, elevation and location of, and landscaping aroIDld, all improvements of any type,
including: walls, fences, swimming pools, dune crossings, antennae, sewers, drains, disposal systems, or other
structures constructed, placed or permitted to remain in Islander Village, as well as the alteration, improvement,
addition or change thereto in order to preserve and maintain an integrated architectural design within Islander
Village;
F. Insrne compliance with and to maintain all permits for the operation of Islander
Village, of whatever nature, as required by govemmental entities having jurisdiction over Islander Village;
G. Make and collect assessments, of any type, in accordance with the terms herein;
H. Provide for such services the responsibility for which has been delegated to this
Association by the terms hereof, and to provide capital improvements and equipment related thereto on the
Common Properties;
I. Provide, purchase, acquire, replace, improve, maintain and/or repair such buildings,
structures, landscaping, paving and equipment, both real and personal, related to the health safety, and social
welfare of the Members as the Board, in its discretion, determines to be necessary, appropriate, and/or
convenient;
1. Preserve scenic assets, natural features and natural and man-made recreational areas, if
any, in Islander Village, to the maximum extent feasible;
K. Oversee the general operation and maintenance ofIslander Village in such a marmer as
to prevent substantial injury to the use and value of all or any part of Islander Village, including, without
limitation, all swales and storm water drainage system;
L. Operate without profit for the sole and exclusive benefit of its Members;
M. Assrne that the provisions of the Declaration and the Master Covenants are duly
enforced and/or complied with;
N. Maintain the driveways within the Limited Common Properties and Common
Properties, including cleaning and periodic resurfacing, and to maintain, operate and replace any street lights
now located or to be installed on the C01lllllon Properties;
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O. Eor the benefit of the Common Properties and the entire Project, (i) obtain all
commonly metered water, sanitary sewage, gas and electric services and other such utilities or services, and (ii)
provide for all refuse collection and cable or master television service (if any), as necessary, whether from
Declarant if it so elccts or other provider should Declarant waive its rights under Article 10. Nothing herein
shall create any liability on the part of the Association for consequential or other damages resulting from the
inability of thc Association to so obtain, produce, circulate and provide any of the foregoing services for
reasons beyond the Association's reasonable control, nor prohibit the Association from temporarily intemlPting
the foregoing services in order to effect necessary repairs, maintenance and replacement;
P. Grant easements, rights of way or strips ofland, where necessary, for utilities, and
sewer facilities and other services over the Common Properties to serve the Common Properties and other
portions of Islander Village;
Q. Maintain such policy or policies ofliability, fire, flood, windstorm and other insurance
with respect to the Common Properties and personal property located thereon or used in connection therewith,
if any, owned by the Association or the Declarant as provided herein in furthering the purposes and protecting
the interests of the Association and Members and as directed by this Declaration and the By laws of the
Association;
R. Take such other action which the Board shall deem advisable with respect to Islander
Village as may be permitted hereunder or under law;
S. To do and perform all such other acts and things permitted and to exercise all powers
granted to a corporation uot for profit under the laws of the State of Florida as those laws now exist or as they
may hereafter provide; and
T. To comply with all federal, state and local requirements concerning enviromnentaI
protectiou including, but not limited to: the compliance with all water quality monitoring requirements; and the
maintenance of the storm water management system.
5.3 Association Expenses. The Association shall, through the Board, fix and determine from time
to time the sum( s) necessary and adequate to provide for the expenses of the Association. The expenses of the
Association shall be assessed against the Owners as provided in Article 6 hereof.
5.4 Title to Common Properties: Convevances to the Association. The Association shall be
obligated to accept any and all assignments of leasehold interests in the Ground Lease Agreement or other
deeds of conveyance delivered to it by Declarant which assignment or deed(s) convey title to all or any portion
of the Common Properties.
5.5 Rules and Rerulations. The Board may from time to time adopt or amend Rules and
Regnlations governing the details of the operation, use, maintenance, management and control of the Parcels
and the Common Properties.
5.6 Budget and Accounting. The Board shall adopt a budget for each fiscal year. Such budget
shall contain estimates of all costs and expenses for the proper operation, management and maintenance of the
Common Properties, including a reasonable allowance for contingencies and reserves, and shall take into
account the projected income which is to be applied in reduction of the amounts required to be collected as an
assessment each year. Common Expenses also shall include the cost of maintaining leaseholds, memberships
and other possessory or use interests in lands and facilities to provide enjoyment, recreation or other use or
14
benefit to Owners, all as,acquircd by lease or agreement in [onn and content satisfactory to the Board, including
amomlts which the Association lllay agree to pay to Declarant for services or availability of service, including
management Assessments shall be established based upon such budget The Association shall comply with
Chapter 617 concerning the adoption, notice and other requirements for homeowner associations.
5.7 Reserves.
A. Reserves for Capital Expcnditures and Deferred Maintenance. Each annual budget
shall include snms to be collected and maintained as reserves to be used for capital expenditurcs and deferred
maintenance. Such reserves may be waived or reduced for a fiscal year by the affirmative vote of at least one-
half (\I,) of the Voting Interests of the Association at a duly called meeting of the Association. If such a
meeting shall have been called and the necessary vote for waiver or reduction shall not have been attained or a
quorum shall not have been obtained, the reserves as set forth in the budget shall go into effect
B. General Operating Reserve. Each annual budget may include a sum to be collected and
maintained as a general operating reserve, which sum may be used to meet deficiencies from time to time
existing as a result of delinquent payment of assessments by Owners or as a result of emergencies or to pay
other costs or expenses placing financial stress upon the Association. The amount to be allocated to such
operating reserve and collected therefor shall not exceed ten percent (10%) of the current aJiliual assessment
levied against all of the Owners. Upon accrual in the operating reserve ofa sum equal to thirty percent (30%)
oftlle curreot annual assessment, no further payments shall be collected, unless such operating reserve shall be
reduced below the thirty percent (30%) level, in which event, contributions to such operating reserve shall be
included in the annual assessment so as to restore the operating reserve to thirty percent (30%) of the current
anllual assessment.
5.8 Collections. Alimonies collected by the Association shall be treated as the separate property
of the Association. Such monies may be applied by the Association to the payment of any expense of operating
the Association, or to the proper undertaking of all acts and duties impose~ upon it by virtue of this Declaration,
the Articles of Incorporation and the By-Laws. Monies for any assessment paid to the Association by any
Owner may be commingled with monies paid to the Association by the other Owners. Although all funds and
the Common Surplus shall be held for the benefit of the members of the Association, no member shall have the
right to assign, hypothecate, pledge or in any manner transfer his interest therein, except as an appnrtenance to
his Parcel. When an Owner shall cease to be a member of the Association, the Association shall not be required
to account to him for any share of the funds or assets of the Association, or for any sums which he may have
paid to the Association.
5.9 Members'Rights. The Association shall be run by the Board and the Members shall only have
such power as is specified herein or in the Articles or Bylaws. In the absence of a specific requirement of
approval by Members, the Board may act on its own through its proper officers with or without a specific
authorizing resolution.
5.10 Exterior Maintenance bv the Association.
A. In addition to maintenance upon the Common Properties, the Association shall also be
responsible for the maintenance of all Crickets between Common Roofs (as provided in Section 16.9 hereof),
which Crickets have been designated as Limited Common Properties.
B. The Association may provide exterior maintenance service to any Parcel, including the
exterior of a Dwelling, pursuant to Section 8.14 hereof. The provision of any exterior maintenance services by
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the Association for any parcel in Islander Village pursuant to Section 8.14 hereof shall not be deemed to
constihrtc and does not constitute an acceptance of the ongoing responsibility to maintain snch properties. At
such time as the Association renders exterior maintenance services, it shall do so at the sole expense of the
Owner(s) for which services were rendered and shall be assessed in accordance with this Declaration as a
Special Individual Assessment except such Special Individual Assessment shall not be a lien on the Parcel as a
Common Expense Assessment.
5.11 Access at Reasonable Hours. For the purpose of performing the exterior maintenance
authorized by this Article, the Association, through its duly authorized agents or employees, shall have the right
without prior notice, to enter upon any Parcel which is the subject of the maintenance assessment at reasonable
hours on any day except on Sunday.
5.12 Easement for Maintenance. The Association is hereby granted a non-exclusive easement to
enter upon any Parcel or the exterior of any Dwelling, and any property in Islander Village owned by the
Declarant in order to provide exterior maintenance service to and upon any structure located on or upon any of
such en111l1erated properties in accordance with the tenns of this Article, inclnding, without limitation, the right
to erect and maintain thereon scaffolding or other equipment required for such maintenance service.
5.13 Fines. Notwithstanding the availability of other remedies set forth elsewhere in this
Declaration, the Association shall also have the power to assess reasonable fines to enforce any of the
provisions of this Declaration, the By-Laws, or rules and regulations promulgated in connection therewith,
provided only that appropriate notice and right to appear be granted to any Owner subject to such fines as
provided herein.
A. In the event a Parcel Owner or oecupant fails to observe and perform all of the provisions
of the Declaration, the By-Laws, of the Association, or reasonable rules and regulations of the Association,
the Association shall have the right to impose a fme against the Parcel Owner and the Parcel. The amount
of any fine shall be determined by the Board of the Association, but in atr.Y event shall not exceed any
maximum amount permitted by under the Chapter 718 (the Condomini111l1 Act) for condomini111l1
associations, as such Condomini111l1 Act may be amended from time to time. Any fine shall be imposed by
written notice to the Parcel Owner or tenant, signed by an officer of the Association. The Parcel Owner,
tenant, or other party against whom the fine is sought to be levied shall be afforded an opportunity for
hearing after reasonable notice of not less than fourteen (14) days. Said notice shall specifically state the
amount of the fine, the date, time and place of the hearing; the provisions of the Declaration, By-Laws, or
rules which have allegedly been violated; and a short and plain statement of the matter asserted by the
Association.
B. The party against whom the fine may be levied shall have an opportunity to respond, to
present evidence, and to provide written and oral argrunent on all issues involved and shall have an
opportunity at the hearing to review, challenge and respond to any material considered by the Association.
C. Hearing shall be held before a committee of other Parcel Owners (the "Fines Committee").
At the hearing, the Fines Committee shall conduct a reasonable inquiry to determine whether the alleged
violation in fact occurred, and that the fme imposed is appropriate. The Parcel Owner, tenant or other party
against whom the fme is sought to be levied shall have the right to attend the hearing and to produce
evidence on his behalf, and if the Parcel Owner or tenant fails to attend then the hearing will be deemed
waived and the Fines Committee may ratifY the fine without further proceedings. At the hearing the Fines
Committee shall ratifY, or disagree with, the fine. If the Committee does not agree with the fine, the fine
may not be levied. If a majority of the Fines Committee members agrees with the fine, the Association shall
16
give the Parcel Owner, tenant or other party against whom the fine is sought, written notice of the Fines
Committee's decision. Any fine shall be due and payable within ten (10) days after written notice of the
Fines Committee's imposition of the fine. If any fine is levied against a tenant and is not paid within ten
(10) days after same is due, the Association shall have the right to evict the tenant. Any Parcel leased by
the Parcel Owner shall be leased pmsuant to a written agreement that shall contain the foregoing provision,
and any Parcel that is not leased by a written document or any Parcel leased pmsuant to a written
agreement that fails to include the foregoing provision shall be deemed to be leased subject to the
provisions hereof.
D. In any proceeding arising because of an alleged failme of a Parcel Owner or the
Association to comply with the requirements of this Declaration, the exhibits annexed hereto, or the rules
and regulations adopted pmsuant to said docmnents, as the same may be amended from time to time, the
prevailing party shall be entitled to recover the costs of tlle proceeding and such reasonable attomeys' fees
(including appellate attomeys' fees).
E. All rights, remedies and privileges granted to the Association or the Parcel Owners
pmsuant to any terms, provisions, covenants or conditions of this Declaration or other Association
documents shall be deemed to be cmnulative, and the exercise of anyone or more shall not be deemed to
constitute an election of remedies, nor shall it preclude the party thus exercising the same from exercising
such other and additional rights, remedies or privileges as may be available at law or in equity.
5.14 Flood Area: Surface Water Management Svstem. The gronnd level of Islander Village is
within a flood zone as established by the Federal Emergency Management Agency (FEMA) and the
National Flood Insmance Program (NFIP). In case of flooding, all such areas are snbject to possible
flooding. Alllntprovements and other property located within the Parcels are subject to possible damage in
the event of flooding, the total risk for which is assumed by the Parcel Owner, their guests, invitees,
licensees and other users. The Association shall be responsible for the maintenance, operation and repair of
the Surface Water Management System. Maintenance of the Surface Water Management System shall
mean the exercise of practices which allow the system to provide drainage, water storage, conveyance or
other surface water or storm water management capabilities as determined by the Board. Developer has
constructed drainage swales within the Common Properties and Parcels for the purpose of managing and
containing the flow of excess surface water. The general location of the swales is depicted in the Swale
Plan, Exhibit E of this Declaration. The Association shall be responsible for the maintenance, operation
and repair of the swales within Islander Village.
ARTICLE 6
ASSESSMENTS
6.1 Pnmose. Assessments levied by the Association shall be used to promote the common health,
safety, benefit, recreation, welfare and aesthetics of the Owners and to maintain, repair and replace the
Common Properties and such portion of Parcels as delegated to the Assessment in this Declaration.
6.2 Assessments. The Board shall have the power to fix, determine and collect from all Owners, as
provided in the By-Laws, the sums necessary and adequate to provide for the Common Expenses and such
other expenses as are specifically provided for in this Declaration and the By-Laws. The Board shall fumish
prompt notice to Owners of all assessments payable.
A. Allocation. Unless otherwise stipulated, all assessments shall be levied on an equal,
prorata basis with all Owners. Should the Association be the owner of any Pareel(s), the assessment which
17
otherwise would be due al1d payable to the Association on such Parcel(s) shall be levied ratably among all of
the Owners excluding the Association.
B. Soecial Assessments. Should the assessments prove to be insufficient to pay the costs
of operation of the Association, or should any emergency arise, including, withont limitation, the following: (a)
reconstruction of portions ofthe Common Properties; and (b) unexpected repairs orreplacements. The Board
shall have the authority to levy such additional assessment(s) as it may deem necessary, subject to obtaining the
Association Membership's approval of such Special Assessment by a majority of those Members voting at a
duly called meeting of the Association at which a quorum is present. The specific purpose(s) of any Special
Assessment shall be set forth in a written notice of such assessment sent or delivered to each Owner. The funds
collected pursuant to a Special Assessment shall be used only for the specific purpose(s) set forth in such notice
or retumed to the Owners; provided, however, that upon completion of such specific purpose(s), any excess
funds shall be considered Cormnon Surplus. Anything herein to the contrary notwithstanding, as long as
Declarant owns at least two (2) Parcels in Islander Village, no Special Assessment shall be authorized without
Declarant's prior written approval. Special assessments deemed to be for costs of operation primarily for the
benefit of specific Lots or Parcels shall be assessed only against such Lots or Parcels.
C. Certificate of Unpaid Assessments. Within fifteen (15) days after request by an Owner
or Parcel mortgagee, the Association shall provide a certificate stating all assessments and other mouies owed
to the Association by the Owner with respect to the Parcel. Any person other than the Owner who relies upon
such certificate shall be protected there by.
D. Pavment Default. The assessments levied against each Owner shall be payable atthe
main office of the Association in such installments and at such time as may be determined by the Board of
Admiuistration as provided in the By-Laws. The payment of any such assessment shall be in default ifit is not
paid to the Association on or before its due date.
6.3 Annual Assessments: Budget. The Board shall fix, determine and collect the snms necessary
and adequate to pay for the general expenses of the Association and any assessment levied by the Master
Association against the Affordable Housing Parcel under the Master Covenants. The armual assessment shall
be determined by the Board based upon an estimated annual budget, which shall be prepared at least forty -five
(45) days prior to the commencement of the fiscal year. The Association's fiscal year shall be the calendar year
beginning with the calendar year in which this Declaration is recorded in the Public Records of the Cormty.
Assessments shall be payable monthly in advance or at such other time as determined by the Board at the main
office of the Association. The payment of any assessment shall be in default if it is not paid to the Association
on or before its due date.
6.4 Special Individual Assessments. In addition to the armual assessments, and Special
Assessments, the Association may levy special assesS11lents to pay the costs of such items as are determined
necessary or appropriate by the Board. Special individual assessments against certain Lots, Parcels and Owners
and in differing amormts as necessary or appropriate.
6.5 Subordination of Liens to Mortgages. Assessment liens shall be superior to all other liens,
except tax liens and first mortgage liens in favor ofInstitutional Lenders or Declarant. The sale or transfer of a
Parcel, pursuant to a decree offoreclosnre or where the Institutional Lender takes a deed in lieu offoreclosure,
shall extinguish the lien of such assessments as to payments which became due and payable prior to the date of
such decree or deed in lieu offoreclosure only pursuantto superior mortgages as provided above. Such sale or
transfer shall not relieve such Parcels from liability for any assessments thereafter becoming due, nor from the
lien of any subsequent assessment.
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6.6 Certificates. The Association shall upon demand at any time furnish to any Owner liable for
said assessment a certificate in writing by an officer of the Association, setting forth whether assessments have
been paid. Such certificate shall be conclusive evidence as to any assessment therein stated to having been
paid.
6.7 Liabilitv of Declarant. Anydling to the contrary herein notwid,standing, Declarant shall not be
liable for any Assessments imposed npon Parcels or Lots for which it is the Owner as long as thc Declarant
pays all deficits in operation ofilie Association above the Assessments and capital contributions and oilier sums
collectible from other Owners or odlerwise. Declarant may at any time and from time to time be relieved of all
obligations to fund deficits by electing, for any Assessment period or periods, to pay Assessments imposed on
Parcels or Lots for which it is the Owner.
6.8 Initial Assessment for New Members. Declarant shall collect from every Owner at dle time of
closing and every such Owner, oilier ilian Declarant, its successors or assigns, shall pay to ilie Association an
amonnt equal to two mondls ofmonilily assessment charges to be used as working capital for ilie Association.
This obligation to pay an initial capital assessment shall apply to transferees from ilie Declarant and all
subsequent transferees from time to time.
ARTICLE 7
EFFECT OF NON-PAYMENT OF ASSESSMENTS~
REMEDIES OF ASSOCIATION
7.1 Application of Proceeds in Event of Default. In ilie event iliat a Parcel is to be sold, leased or
mortgaged at a time when payment of any assessment by ilie Owner shall be in default (wheilier or not a notice
oflien has been recorded by ilie Association), ilien ilie proceeds of such purchase or mortgage shall be applied
by ilie purchaser or mortgagee first to payments of any ilien delinquent a~sessment or installments iliereof due
to ilie Association before ilie payment to ilie Owner in default.
7.2 Liens~ Enforcement.
A. The assessments shall be levied against each Owner(s) who is bound to pay iliem.
Common Expenses and assessments shall constitute a lien against each Parcel and shall have ilie priority
afforded by law. Actions to enforce such claims shall be in conformity wiili ilie law. Each Owner also shall be
liable personally to ilie Association for ilie payment of all such assessments and for interest on any delinquent
payment and for all costs of collecting such payment and interest iliereon, including reasonable attorneys' fees.
No Owner may exempt himself from liability for any assessment levied against him by waiver of the use or
enjoyment of any of ilie Common Properties, or by abandonment of ilie Parcel or Dwelling or in any oilier
way. Assessments which are nnpaid after the due date shall bear interest at ilie maximnm rate of interest
chargeable to an individual as permitted by ilie laws of ilie State of Florida. Once interest has accrued, any
subsequent payment shall be applied first to payment of interest and collection costs and ilien to ilie payment of
ilie assessment first due.
B. Each such lien shall secure: (i) all advances for taxes, payments on acconnt or superior
mortgages, liens or encnnlbrances and any other payments which ilie Association may pay in order to preserve
and protect its lien; and (ii) all costs and expenses, including reasonable attorneys' fees, which may be incurred
by the Association in enforcing ilie lien upon ilie Parcel.
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c. Each lien hercin grantcd (0 the Association shall be effective upon recording a notice
of lien in the Public Records of the Comlty. A notice of lien shall state the description of the Parcel and
Dwelling encumbered thereby, the name of the record owner, thc amount due and the date when due. No lien
shall continue for a period longer thao one (I) year after the claim of lien shall have bccn recorded, unless
within that time an action to enforce the lien shall be commenced in a court of competent jurisdiction. The
claim of lien shall secure all unpaid assessments. Such claim of lien shall bc signed and verified by an officer
or agent of the Association. Upon full payment of all smllS secured by such lien, the same shall be satisfied of
record.
D. The Association, acting through the Board, shall have the right to assign to Declarant
or to any Owner(s) or third party its lien rights for tile recovery of any unpaid assessments.
E. A lien granted to the Association may be foreclosed against the leasehold interest in tile
Parcel aod tile Dwelling. No foreclosure action mal' be filed mltil at least thirty (30) days after the Association
gives written notice to the Owner of its intention to foreclose its lien to collect the unpaid assessments. If this
notice is not given at least thirty (30) days before the foreclosure action is filed and if the unpaid assessments,
including those coming due after the claim of lien is recorded, are paid before the ently of a final judgment of
foreclosure, the Association shall not recover attorneys' fees or costs. The notice must be delivered personally
to the Owner or mailed and delivered by registered or certified mail, return receipt requested. If, after diligent
search and inquiry, the Association cannot fmd the Owner or a mailing address at which the Owner will receive
the notice, the notice shall be given as required by law.
F. If the Owner remains in possession of the Parcel and/or Dwelling aod the claim oflien
is foreclosed, the court, in its discretion, may require the Owner to pay taxes aod prior encumbrances aod
interest thereon, all as provided above. Such notice oflien shall be signed and verified by an officer or agent of
the Association. Upon full payment of all sums secured by such lien, the same shall be satisfied of record.
G. Institution of a suit at law to collect payment of any delinquent assessment shall not
prevent the Association from thereafter seeking enforcement of the collection by foreclosure of any sums then
owing to it. Proceeding by foreclosure to effect such collection shall not preclude the institution of a suit at law
to collect any sum then owing to it.
H. A Owner, regardless of how title is acquired, including a purchaser at a judicial sale,
shall be liable for all assessments coming due while he is the Owner and shall be subject to all of the provisions
of this Declaration, the By-Laws, the Rules and Regulations and applicable law. In a voluntary conveyaoce, the
graotee shall be jointly aod severally liable with the grantor for all unpaid assessments against the grantor for
his share of the Common Expenses up to the time of the conveyance, without prejudice to aoy right the graotee
may have to recover from the grantor the amounts paid by graotee. Any person who acquires 30 interest in a
Parcel aod/or Dwelling (except through a foreclosure of a recorded first mortgage or acceptance of a deed in
lieu thereof) shall not be entitled to occupaocy of the Parcel or Dwelling or enjoyment of the Common
Properties until such time as all unpaid assessments and other charges due aod owing by the former owner have
been paid.
When 30 Institutional Lender of record, or other purchaser of a Parcel aod Dwelling shall obtain title to
a Parcel aod Dwelling by a purchase at a public sale resulting from the Institutional Lender's foreclosure
judgment in a foreclosure suit in which the Association shall have been properly named as a defendaot junior
lienholder, or as a result ofa deed given in lieu offoreclosure, such acquirer of title, its successors and assigns
shall not be liable for the share of Common Expenses or assessments attributable to the Parcel or chargeable to
the former Owner of the Parcel which became due prior to such acquisition of title uuless the share shall be
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secured by a claim of lien for assessments recorded prior to the recording of the foreclosed mortgage. The
unpaid share of Common Expenses or assessments shall be Common Expenses collectible from all of the
Owners, including such acquirer, its successors and assigns. An Institutional Lender acquiring title to a Parcel
by forcclosure or deed in lieu of foreclosure shall not, during the period of its interest in the Parcel and
Dwelling, whether or not the Parcel and Dwelling are lUlOccupied, be excused from the payment of some or all
of the Common Expenses coming due during the period of such ownership.
7.3 Liens~ Personal Obligations. Each Owner hereby gives and grants unto the Association a lien
against such Owner's Parcel and Dwelling for the Owner's respective share of the assessments due the
Association. The lien herein granted shall commence upon the recording of this Declaration in the Public
Records of the County. Owner, for each Parcel and Dwelling subleased by it, and each other Owner, by
acceptance of a sublease thereto, shall be deemed to covenant and agree to pay to the Association: (a) annual
assessments; (b) special assessments; and (c) special individual assessments. Each such assessment, together
with interest, late charges, costs, and reasonable attorneys' fees, shall be a charge on the applicable Parcel and
Dwelling and shall be a continuing lien thereon against which each such assessment is made. Each such
assessment, together with interest, late charges, costs and reasonable attorneys' fees shall also be the personal
obligation of the person(s) subleasing such Parcel at the time when the assessment came due.
7.4 Delinquencies~ Enforcement. Unpaid assessments shall be a continuing lien on the applicable
Parcels and Dwellings which shall bind such Parcels and Dwellings in the hands of the then Owner, his or her
heirs, devisees, personal representatives, successors and assigns. The personal obligation of the then Owner to
pay such assessment, however, shall remain as personal obligation for the statutory period and shall not pass to
his successors in title lUdess expressly assumed by them. Assessments shall bear interest from the dne date
until paid at the maximum rate allowed by law for an individual. A late charge shall be dne in the amount of
twenty-five ($25.00) dollars per monthly assessment or portion thereof past due or five percent (5%) of the
monthly assessment past due, whichever is greater, and the Association may bring an action at law against the
Owner personally obligated to pay the same or an action to foreclose the lien against the Parcel, and there shall
be added to the amount of such assessment reasonable attorneys' fees and costs incurred in collecting such
assessment, and in the event that judgment is obtained, such judgment shall include interest on the assessment
and late charges as above provided and reasonable attorneys' fees, together with the cost of the action, including
attorneys' fees and costs on appeal. Liens may be foreclosed in the same marmer as mortgages are foreclosed.
ARTICLE 8
ARCHITECTURAL/LANDSCAPE CONTROL
8.1 Members of Committee. The Architectural Control Committee, sometimes referred to in this
Declaration as the "Committee", shall consist of three (3) members. The initial members of the Committee
shall consist of persons designated by Declarant. Each of said persons shall hold office until all Parcels planned
for Islander Village have been constructed, created and subleased to Owners, or sooner at the option of
Declarant. Thereafter, each member of the Committee shall be appointed from time to time by the Directors.
8.2 Review of ProDosed Construction.
A. Subject to Articles 11 and 12 of this Declaration and any other exemption granted to
Declarant pursuant to tile terms of this Declaration, no building, fence, wall or other structure or Improvement
(including landscaping, trees, shrubs, vegetation and ground cover) shall be commenced, removed, altered,
painted, erected or maintained in Islander Village, nor shall any addition, change or alteration visible from the
exterior of Dwellings be made, nor shall any awning, canopy or shutter be attached to or placed upon outside
walls or roofs of Buildings or other improvements, until the plans and specifications showing the nature, kind,
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shape, height, materials a\ld location of the same shall have been submitted to, and approved in writing by, the
Committee. The Committce shall approve proposals or plans and specifications snbmitted for its approval only
if it deems that the construction, alterations, additions or use contemplatcd thereby in the locations indicatcd
will not be detrimental to the appearance of the surrounding arca ofIslandcr Village as a whole, and that the
appearmlce of mlY structure affected thereby will be in hannony with the sUITounding structures and is
otherwise desirable. The Committee may condition its approval of proposals and plans and specifications as it
deems appropriate, and mal' require snbmission of additional plans and specifications or odler infonnation prior
to approving or disapproving material submitted. The Committee mal' also issue mles or guidelines setting
forth procedures for the submission of plans for approvaL The Committee mal' require such detail in plans and
specifications submitted for its review as it deems proper, including, without limitation, floor plans, site plans,
drainagc plans, elevation drawings and descriptions or smnpies of exterior materials mld colors. Until receipt
by the Committee of ooy required ploos ood specifications, the Committee may postpone review of any plans
submitted for approvaL The Committee shall have thirty (30) days after delivery of all required materials to
approve or reject any such ploos, ood if not approved within such 30-day period, said ploos shall be deemed
approved. The Committee herein shall be the ultimate deciding body and its decisions shall take precedence
over all others.
B. TIle Committee shall have the right to promulgate such further rules and regulations as
it deems necessary in order to preserve the values ood appearooce ofIslander Village and hereafter, to modify,
alter, muend, rescind and augment 001' of smue (collectively "Design Rules") provided that the Design Rules so
promulgated shall not be in conflict with the provisions of the Declaration. Such Design Rules shall not
become effective until approved by the Declarant in writing so long as the Declarmlt owns 001' portion of
Islooder Village ood thereafter by the Board. The Committee may adopt a schedule of reasonable fees for the
processing of applications which fees shall be subject to the approval of the Board.
C. The Committee shall also have the right to determine from time to time the use that
each Parcel or Property (or portion thereof) may be subject to, and may prohibit or restrict a particular use
notwithstooding that such use may be permitted by 001' applicable zoning law, ordi11lli1ce, rule or regulation.
D. All chooges and alterations shall be subject independently to all applicable
govemmentallaws, statutes, ordinooces, rules, regulations, orders ood decrees.
8.3 Meeting of the Committee. The Committee shall meet from time to time as necessary to
perform its duties hereunder. The Committee may from time to time, by resolution unooimously adopted in
writing, designate a Committee representative (who may, but need not, be one of its members) to take 001'
action or perform 001' duties for and on behalf of the Committee, except the grooting ofvariooces purSUllilt to
Section 8 hereof. In the absence of such designation, tlle vote of 001' two (2) members of the Committee shall
continue an act of the Committee.
8.4 No Waiver of Future Approvals. The approval of the Committee ofooy proposals or plans and
specifications or drawings for any work done or proposed, or in connection with any other matter requiring the
approval and consent of the Committee, shall not be deemed to constitute a waiver of any right to witlthold
approval or consent as to any similar proposals, plmls and specifications, drawings or matters whatever
subsequently or additionally submitted for approval or consent.
8.5 Compensation of Members. The members of the Committee shall receive compensation for
services rendered as determined by the Board, in addition to reinlbursement for expenses incurred by them in
the performance of their duties hereunder.
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8.6
follows:
Inspection of Work. Inspection of work and correction of defects thcrein shall proceed as
A Upon the completion of any work for which approved plans arc required under this
Article 8, the applicant for such approval (the" Applicant") shall give written notice of completion to the
Committee.
B. Within ten (10) days thereafter, the Committee or its duly authorized representative
may inspect such Improvement If the Committee finds that such work was not effected in substantial
compliance with the approved plans, it shall notify the Applicant in writing of such noncompliance within such
ten (10) days period, specifying the particulars of noncompliance, and shall require the Applicant to remedy the
same.
C. If a noncompliance exists, the Applicant shall remedy or remove same within a period
of not more than thirty (30) days of such notification. If, upon the expiration of thirty (30) days from the date
of such notification, the Applicant shall have failed to remedy such noncompliance, the Committee shall notify
the Board in writing of such failure. The Board, at its option, may either remove the non-complying
Improvement or remedy the noncompliance, and the Applicant shall reimburse the Association, upon demand,
for all expenses incurred in connection therewith, plus a 25% administrative charge. If such expenses are not
promptly repaid by the Applicant to the Association, the Board shall levy a Special Assessment against such
Applicant for reimbursement plus tile 25% administrative charge. The entry upon the property by the
Association or its agents for the purpose of affecting the terms of this provision is expressly permitted and shall
not constitute a trespass.
D. If for any reason the Committee fails to notify the Applicant of any noncompliance
within thirty (30) days after receipt of said written notice of completion from the Applicant, the Improvement
shall be deemed to have been made in accordance with said approved plans.
8.7 Non-Liability ofCol1l1l1ittee Members. Neither the COl1l1l1ittee, nor any member thereof, nor its
duly authorized Committee representative, shall be liable to the Association, any association, or to any Owner
or any other person or entity for any loss, damage or injury arising out of or in any way connected with the
performance of the Committee's duties hereunder, unless due to the willful misconduct or bad faith of a member
and then only that member shall have any liability. The Committee shall review and approve or disapprove all
plans submitted to it for any proposed Improvement, alteration or addition solely on the basis of aesthetic
considerations and the overall benefit or detriment which would result to Islander Village. The COl1l1l1ittee
shall take into consideration the aesthetic aspects of the architectural designs, placement of buildings,
landscaping, color schemes, exterior finishes and materials and sintilar features, but shall not be responsible for
reviewing, nor shall its approval of any plan or design be deemed approval of, any plan or design from the
standpoint of structural safety or conformance with building or other codes.
8.8 Variance. The Committee may authorize variances from compliance with any of tile
architectural provisions of this Declaration or any supplemental declaration, when circumstances such as
topography, natural obstructions, hardship, aesthetic or enviro1l1llental considerations require. Such variance
must be evidenced in writing which must be signed by at least two (2) members of the C01l1ll1ittee. If such
variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration or
any supplemental declaration shall be deemed to have occurred with respect to the matter for which the
variance was granted. The granting of such a variance shall not, however, operate to waive any of the terms
and provisions ofthis Declaration or of any supplemental declaration for any purpose except as to the particular
property and particular improvement for which the variance was granted.
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8.9 Exterior Appearance and Design. The Owners of any improvement which has snlTered damage
mnst apply for approval to the Architectnra] Committee for reconstruction, rebnilding or repair of thc
Improvements therein. Application for such approval shall be made promptly after such damage and shall be in
writing, together with full and complete plans and specification, working drawings and elevations showing the
proposed reconstruction and the end result thereof. The Architectural Committee shall grant such approval only
if upon completion of the work the exterior appearance and design will be substantially like that which existed
prior to the date of the casualty. Failure of the Architectural Committee to act within thirty (30) days after
receipt of such a request in writing together with the drawings and plot plans showing the full and complete
nature of the proposed changes shall constitute approval thereof. If the obligation for repair falls upon the
Association, Architectural Committee approval will not be required prior to the commencement of such work.
8.10 Time Limitation - Commencement and Completion of Construction. The Owner of a Parcel
shall conmlence construction ofthe Parcel(s) permitted to be constructed thereon not later than the firstto occur
of (a) six months following the date on which the last of the requisite approvals have been obtained by
Declarant for the issuance of building permits with respect to said Parcel(s) or (b) one year after the date of
closing on the transfer of the Parcel(s) by Declarant to the Owner as evidenced by the date of delivery of the
deed to said Parcel(s). Said Parcel Owner shall complete construction of said Parcel(s) (as evidenced by
issuance of a certificate of occupancy) within 180 days of commencement. Parcel Owners shall be required to
complete construction of all Parcels in said parcel (evidenced by the issuance of a certificate of occupancy
therefor) within two years from the date of closing on the transfer of the Parcel by Declarant to the Parcel
Owner. Once commenced, the Owner shall diligently and continuously proceed with the uninterrupted
construction of the improvements thereon. In the event that an Unimproved Parcel has been improved but has
not had a Certificate of Occupancy issued thereof, the Declarant may, subject to the Right of Repurchase
pursuant to Article II hereof, enter upon the property and complete the improvements required for the issuance
of a Certificate of Occupancy therefor and charge to the Owner the costs incurred thereby (including hard and
soft costs) as a Special Assessment and thereafter the property shall be assessed as an Improved Parcel. The
enlly upon the property by the Association and its agents for the purpose of affecting the terms of this provision
is expressly permitted and shall not constitute a trespass thereon.
8.11 Time Limitation - Destruction. The Owner or Owners of any damaged Building, the
Association and the Architectural Committee shall be obligated to proceed with all due diligence hereunder,
and the responsible party shall commence reconstruction within three (3) months after the damage occurs and
complete reconstruction within one (1) year after damage occurs, unless prevented by causes beyond their
reasonable control.
8.12 hnprovements. All Improvements shall comply with all applicable minimum standards
established by the Committee and zoning laws. No Improvement shall be constructed, removed, changed or
installed without the Committee's prior written approval (except as hereinafter provided as to Declarant). The
Committee shall control not only the initial structure and improvements, landscaping, walls and fences to be
constructed, but also any additions, changes or modifications thereof on any Parcel, except that all structures
constructed by Declarant as well as landscaping, walls and fences, if any, installed or constructed by Declarant
shall be deemed approved by the Committee. Anything herein to the contrary notwithstanding, any Owner may
make alterations, changes and modifications within the interior of his Parcel without obtaining the Committee's
consent.
8.13 Maintenance ofImorovements. All Improvements shall be kept in a clean, neat and attractive
condition consistent with the general appearance of Islander Village and in conformity with the terms and
conditions of this Declaration and all rules and regulations hereinafter adopted by the Association.
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8.14 Maintenance and Repair.
A. Bv Owners. Each Owner agrees to maintain in good condition and repair all strnctural
components of the Owner's Dwelling and Improvements and exterior surfaces such as walls, floors, screens,
windows, doors, gutters, downspouts and roofs and to replace such items, when necessary. The Association
shall have the right, at its discretion, to make slIch maintenance or repair, if the Owner fails to do so following
ten (10) days' writtcn notice, or written or oral notice of a shorter duration in the event of an emergency
situation, and to charge the Owner for the costs of same. If the Association charges an Owner for such repairs
or maintenance, and the Owner fails to make prompt payment, the Association shall be entitled to place a lien
against that o,,~ler's Parcel and proceed as provided in Article 6 hereof. An Owner shall be liable for the
expense of any maintenance, repair or replacement made necessary by his act or negligence or by that of any
member of his family or his or their guests, invitees, employees, agents or lessees, hut only to the extent that
expense is not met by the proceeds of insurance carried by the Association and then, conditioned on the extent
of the right of subrogation of the Association's insurer.
B. Bv the Association. The Association shall be responsible for the maintenance,
repair and replacement of all of the Common Properties, and all conduits, ducts, plumbing, wiring and
other facilities for the furnishing of utility and other services to more than one Parcel, including, without
limitation, the operation and maintenance of the Surface Water Management System (including all swales),
and all landscaping and fencing within Islander Village as originally constrncted by Declarant, driveways
located outside of the boundaries of Parcels, sewer infrastrncture and common areas as depicted in Exhibit
C, the cost and expense thereof shall be charged to all Parcel Owners as a Common Expense. Should any
incidental damage be caused to any Parcel by virtue of any work which may be done or caused to be done
by the Association in the maintenance, repair or replacement of any Common Properties, the Association,
shall, at its expense, repair such incidental damage. The costs of such maintenance on the Common
Properties shall be apportioned in equal shares among the Owners. However, to the extent such
maintenance, repairs or replacements are necessitated by the negligence, misuse or neglect of a Owner, his
family, guests or invitees, such costs shall be assessed against his Parcel and paid by the Owner. In the
event of any dispute among the Owners regarding the costs of repair, maintenance or restoration of the
Common Properties the Owner hereby designates the Board of Administration as arbiters of such dispute,
whose decision shall be binding and conclusive upon them. In the event that one of such Owners is an
Administrator, he shall stand down from such office during the hearing and decision on the dispute.
Whenever it is necessary to enter any Parcel for maintenance, alteration or repair to any portion of the
Common Properties, each Owner shall permit other Owners or their representatives, or the Association's
duly constituted and authorized agent, to enter such Parcel for such purpose, provided that such entry shall
be made only at reasonable times and with reasonable notice.
ARTICLE 9
PARTICULAR USE RESTRICTIONS, RULES AND REGULATIONS
9.1 Applicabilitv. The provisions of this Article shall apply to Islander Village, but shall not apply
to Declarant, any of its affiliates, contractors or subcontractors. If requested by any interested party, Declarant
shall give a written statement as to whether any particular person or entity shall be exempt from the provisions
of this Article and to which Parcels and for what period of time such exemption shall exist.
9.2 Nuisances. No noxious, offensive or unlawful activity shall be carried on within Islander
Village nor shall anything be done in Islander Village which may be or may become an annoyance or nuisance
to other Owners.
25
9.3 Signs. No sign of any kind shall be permitted on the Common Properties or any Parcel; nor
shall any sign be permitted that is visible from the outside of a Dwelling; provided however, one "for-sale" sign
or one "owner's-name" sign, shall be permitted but such sign shall not exceed two square feet in areas.
Notwithstanding such prohibition, no parking, restrictcd parking, speed and directional signs shall be permitted
at the discretion of the Association and with the consent of the Declarant. All pennitted signs shall, in all
respects, be in accordance with rules and regulations promnlgated by the Association. Notwithstanding
anything herein to the contrary, Declarant shall be entitled to place signs of sneh size and design as Declarant
shall determine upon any Lot or Parcel to advertise for sale or other purposes.
9.4 Parking and Vehicular Restrictions. Parking in Islander Village shall be restricted to the
designated parking spaces within Parcels, i.e., driveway areas, assigned parking spaces and guest parking
spaces. Except for temporary purposes in order to service Parcels or the Common Properties, no person shall
park, store or keep on any portion of Islander Village any large commercial-type vehicle (for example, dump
truck, cement mixer truck, oil or gas truck, delivery truck), nor may any person keep any other vehicle on the
Common Properties which is deemed to be a nuisance by the Board. No person shall conduct repairs (except in
an emergency) or restorations of any motor vehicle within Islander Village. All vehicles shall be subject to
height, width and length restrictions and other rules and regulations now or hereafter adopted by the
Association.
9.5 Animal Restriction. No livestock, reptiles or ponltry of any kind shall be raised, bred or kept
on Islander Village. Pets shall be prohibited from all portions of the Common Properties excepts where
designated by the Association. No more than two (2) domestic pets (i.e., dogs, cats, birds) shall be permitted
for any Parcel and the Dwelling located thereon, and the total weight of such pets shall not exceed eighty (80)
pounds. All pets must be controlled by Owners in strict accordance with rules and regulations to be enacted
from time to time, by the board.
9.6 Garbage. Refuse and Sewage Disposal. No portion ofIslander Village shall be used or main-
tained as a dwnping ground for rubbish. Trash and garbage shall not be kept except in sanitary containers or as
required by the Association or the applicable County ordinances. All equipment for the storage or disposal of
such material shall be kept in clean and sanitary condition. No individual sewage disposal system shall be
permitted in Islander Village.
9.7 Temporary. Plav and Auxiliary Structures. No structure of a temporary character, trailer,
basement, tent, shack, shed, barn or other outbuilding shall be built, installed or used in Islander Village at any
time. No platform, doghouse, playhouse or similar structure shall be constructed in any pat! ofIslander Village
without the Committee's prior written approval. No outdoor clotheslines shall be permitted. No building, fence,
screen enclosure, wall or other structure shall be erected or maintained, nor shall any exterior addition, change
or alteration thereof be made, unless consistent with the general aesthetics ofIslander Village and unless and
until plans and specifications showing the nature, kind, shape, height, materials, color and location of the same
shall have been submitted and approved in writing by the Committee.
9.8 Alterations. No Improvement shall be altered or constructed in or removed from Islander
Village except upon the written consent of the Committee.
9.9 Outside Installation: Satellite Dishes and Exterior Antennas. To the extent permitted by law
and as otherwise approved by the Board, no exterior radio anterma, television antenna or other antenna of any
shall type shall be erected or maintained in the Parcels or elsewhere on Islander Village, unless approved by the
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Committee. The Assoctation may provide that a master antenna, cable television antenna or similar antelUlae
for the use of Owners, and Declarant may grant and hereby reserves an easement for such purposes.
9. 10 Insnrance Ratcs. Nothing shall be done or kept within any Parcel or Common Properties which
will increase the rate of insurance on any properties insured by the Association withont the approval of the
Board, nor shall anything be done or kept within Parcels, or on the Common Properties which would result in
the cancellation of insurance on any property insured by the Association or which would be in violation of any
law. In the event that an Owner does anything to increase the rate of insurance, said Owuer shall be respousible
for payment of the increased amouut as a Spccial Individual Assessment iu accordance with the tenns hereof.
9.11 Drilling. No oil drilling, oil development operations, oil refining, qnarrying or mining
operatious of any kind shall be permitted in or on Islander Village, nor shall oil wells, tanks, tunnels or mineral
excavations or shafts be pennitted. No derrick or other sttuctnre designed for use in boring for water, oil,
natural gas or minerals shall be erected, maintained or permitted on or aronnd Islander Village.
9.12 Mfordable Housing Limitations. All Parcels within Islander Village are restricted by the
limitations, including, without limitation, restrictions on the sale and lease of the Parcel, imposed by the
Ground Lease Agreement.
9.13 Maintenance ofIslander Village. No weeds, nnderbrush, or other unsightly growth shall be
permitted to grow or remain upon the property within Islander Village and no refuse or nnsightly objects shall
be allowed to be placed or suffered to remain upon the property within Islander Village. All lawns, landscaping
and sprinkler systems and any property, structure, improvement and appurtenance shall be kept in good, safe,
clean, neat and attractive condition by the Association. During the course of consttuction of any kind within
Islander Village, the owner of the property upon which such consttuction work is being done shall store all
construction materials, including equipment and vehicles, supervise all consttuction personnel and manage all
phases of the consttuction in a m31mer reasonably designed to minimize traffic congestion, dust, noise and other
similar distractions, disturbances and inconveniences. Excepted from the foregoing shall be any portion of the
property within Islander Village owned by Declarant or its nominee through the period of construction of
Parcels or other buildings or sttuctures thereon. Upon the failure to maintain the premises as aforesaid to the
satisfaction of Declarant or the Association, and upon the Association's, or an Owner's, failure to make such
correction within thirty (30) days of being given written notice by Declarant or the Association (which written
notice does not have to be given by Declarant or Association in the case of emergency, in which event,
Declarant or Association may without any prior notice directly remedy the problem), Declarant or the
Association may, in furtherance of Declarant's overall plan for the development and uniform appearance of
Islander Village, enter upon such premises and make such improvements or correction as may be necessary, the
costs of which shall be paid by the Association or Owner having responsibility for such condition, as the case
may be, or Declarant or the Association may bring an action at law or in equity. Such entry by Declarant or the
Association or their agents shall not be a trespass and, by acceptance of a deed for a Parcel, such party has
expressly given Declarant and the Association the continuing permission to do so, which permission may not be
revoked. If any Owner or the Association fails to make payment within fifteen (15) days after request to do so
by Declarant or Association, as appropriate, the payment requested shall be a lien in accordance with the
Special Assessment provisions hereof.
9.14 Maintenance bv the Owner. The responsibility of each Owner to keep his Parcel in compliance
with standards promulgated by the Architectural Control Committee of the Board shall be as follows:
A. To maintain, protect repair and replace, at his own cost and expense, all portions of the
Owner's Parcel (including the area lying directly beneath the Dwelling) together with all improvements and
27
equipment located thereol), including the obligation to kcep the driveway with thc Parcel's Limited Common
Properties in a neat and clean condition free of debris and trash, except any portions to be maintained, repaired
and replaced by the Association. Such maintenance, protection, repair and replacement shall be done without
disturbing the rights of the other Owners;
B. Not to modifY or change the appearance or design of any portion ofthe exterior of any
Dwelling without the prior written approval of the Association; and
C. To report promptly to the Association any defect or need for repairs, maintenance or
replacements for which tlle Association or other association is responsible.
9.15 Use of Land. No Improvement or any portion ofIslander Village shall be used for any purpose
other than residential consistent witllthe requirements of the Ground Lease Agreement; provided however that
temporary uses by Declarant, its affiliates and designees for model homes, sales displays, parking lots, sales
offices and other offices, or any combination of such uses shall be permitted until Declarant shall detennine that
such use is no longer needed. No more than one dwelling structure may be constructed on a Parcel. No
auxiliary buildings of any kind shall be constructed within a Parcel.
9.16 Exterior Colors. The exterior colors of all Improvements shall remain the colors initially
established by Declarant, unless approved by the Committee.
9.17 Boats. Boat Trailers and Recreational Vehicles. No boats, recreational vehicles, and non-
commercial trailers shall be parked within Islander Village.
9.18 Laundrv. No balcony, porch or other exterior portion ofa Parcel or Lot shall be used for the
pnrpose of drying of laundry or other items.
9.20 Fences. No fencing of any kind, either permanent or temporary, shall be constructed without
the prior written approval of the Committee (such approval being based upon rules and regulations as it may
adopt from time to time).
ARTICLE 10
CABLE AND TELEVISION SYSTEM
10.1 Installation. The Association may construct or install over, under, across and npon any portion
ofIslander Village for the use of the Owners a cable television and internet access system (the "System"), the
scope, extent, size and the location of which over, across, upon and through Islander Village shall be
determined solely by the Declarant (and thereafter Association) together with a perpetual and exclusive right
and privilege of ingress and egress thereto for installing, constructing, inspecting, maintaining, altering,
moving, intproving, and replacing the facilities and equipment constituting the System, including, without
limitation, any antentlas, conduits, wires, cables, lines, panels, boxes, housings, contlections, insulators and
amplifiers necessary or desirable to receive and distribute services of the System.
10.2 Svstem Services. The Association shall have the right to enter contracts for the exclusive
provision of the System as the Board shall deem, in its sole discretion, to be in the best interests of the Owners.
The contract may provide that the basic System shall be mandatory for all Owners. The Association shall
impose, along with Common Expense asseSS1l1ents and its regular maintenance assesS1l1ents, against each
Parcel, the amount of the basic fees due and payable for the System.
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ARTICLE] I
DEVELOPER RIGHTS, RESER V ATIONS AND EXEMPTIONS
I 1.1 Declarant's Rights. Declarant hereby reserves to itself, and the sublessee of any Parcel or other
property within Islander Village hereby agrees, by acceptance of a sublease or similar conveyance thereto, that
Declarant shall have the following rights, without notice or approval, so long as Declarant owns any portion of
the Property in Islander Village, including portion ofthe Property, Lot or any Parcel leased by Declarant as the
result of any reconveyance from a third party to Declarant, or until Declarant causes to be recorded a Certificate
of Termination of Interest in Islander Village (or unless expressly provided to the contrary herein), which
Certificate tenninates any and all right, title, interest and obligation of Declarant in Islander Village:
A. The right to vacate or withdraw any area of any portion of the Property subject to this
Declaration, provided that Declarant has retained its leasehold interest in the property which is to be vacated or
witlldrawn from this Declaration. The invalidization or unenforceability ofthis right shall in no way affect the
enforceability of the other covenants and restrictions contained in this Article, tllis Declaration or any
supplemental declaration. Any such invalidation and unenforceability shall cause this reservation of right to be
void;
B. The right to dispense pesticides throughout the Property;
C. The right to retain legal and equitable title to the Common Properties, or to sell, lease
or otherwise convey all or any part of its interest in tlle Property and to demolish, alter or modifY in whole or in
part, any improvements on the Common Properties;
D. The right to establish easements for itself and others over any portion of the Property
which is owned by Declarant, including, that portion of the property decided as Common Properties;
E. The right to convey, in whole or in part, any easements granted in favor of Declarant,
as created in this Declaration or as recorded in the Public Records of Monroe County, Florida, which pertain to
Islander Village;
F. The right, for any reason, including, without limitation, in order to meet requirements
of any applicable law, code, ordinance, rule or regulation of any governmental or quasi-governmental authority
or lending institution or bond issuing authority or development agency or the like, to make changes,
amendments, supplements or modifications to any or all of the covenants, restrictions, easements, reservations,
agreements, documents or instruments affecting the Property, Islander Village or any portion thereof, whether
recorded, or unrecorded, as Declarant, its successors and assigns, may deem reasonable, necessary, appropriate
or convenient, provided that anyone of the foregoing singly or taken collectively will not materially adversely
affect the Parcel of any Owner. The foregoing shall not restrict or limit Declarant or its successors' and assigns'
ability to amend, modify or supplement this Declaration as herein otherwise provided;
G. The right to erect or grant to an Owner the right to erect temporary buildings on any
portion of the Property which is owned by Declarant or title to which has been granted by Declarant to an
Owner;
H. The right to maintain an easement, for construction, reconstruction or repair purposes,
across any property within Islander Village;
29
I. The right to maintain a sales office in Islander Village, inclnding, without limitation, a
sales office on a portion of the Common Properties, and to erect signs and to condnct sales throughout Islander
Village;
J. The rightto appoint the members of the Architectural Control Committee for such time
as Declarant owns any property in Islander Village;
K. The right to conduct the development, marketing and sale of property in Islander
Village owned by Declarant or any third party with whom Declarant may so contract to provide such services;
L. An irrevocable power of attorney, coupled with an interest, of all Owners in favor of
Declarant, for as long as Declarant owns any portion of the Property or any Parcel within Islander Village, to
exercise any of the foregoing or other rights or discharge any ofthe foregoing or other obligations which may
be set forth therein for the benefit of Declarant or as an obligation of any Owner. This power of attomey shall
be self-operative and shall not require any additional instrmnent to effectuate same. An Owner, by acceptance
of a deed, thereby acknowledges and confirms (and, to the extent required, grants) the power of attomey set
forth herein: and
M. An irrevocable designation and appointment of Declarant, its successors and assigns,
by each Owner, as such Owner's attomey-in-fact, to execute and deliver any applications for approval, platting,
consents, amendments, variance or other documents or instrmnents as Declarant, its successors and assigns,
may from time to time request. The foregoing power-of-attomey, designation and appointment shall be
coupled with an interest, shall be self-operative and shall not require any additional instrmnent to effect same;
provided, however, that same shall be limited in time and duration to a period often (10) years from and after
the date that the initial Owner, other than Declarant or an affiliate of Declarant, takes the leasehold title to a
Parcel from Declarant.
11.2. Veto Power. Declarant hereby expressly reserves to itself, and any sublessee of any Lot or
Parcel hereby agrees, by acceptance of a sublease agreement or other deed of conveyance thereto, that
Declarant shall have the right to veto any of all of the following events so long as Declarant owns any part of
the Property of Islander Village, including property owned by Declarant as the result of any reconveyance of
property, or until Declarant causes to be recorded a Certificate of Termination of Interest in Islander Village,
which Certificate terminates any and all right, title interest and obligation of Declarant in Islander Village:
A.
Any matter adversely affecting Declarant or its interests;
B.
Constrnction of improvements approved by the Association;
C.
Constrnction of any dune or access way approved by the Association;
D.
Islander Village;
Association approval which permits the conduct of any commercial enterprise within
E. Any or all Association budgets, ammal or otherwise which constitute an increase or
reduction of fifteen percent (15%) over the prior year's (or other applicable interval) budget;
F.
Control Committee;
Approval of any plans or specifications for any structure made by the Architectural
30
G. Attemptcd resubdivision of the Property or any part thereof;
H. Any attempted dissolution or tcrmination of the Association;
I. Attempted amendment of this Declaration, Articles, and By-Laws, or any
supplementary declaration of protective covenants and restrictions;
J. Any management contracts entered into by the Association or Board;
K. The creation of any special assessments by the Association;
L. Any capital improvement assessments by the Association;
M. Any settlement of any claim made by Association to collect upon any policy of
casualty insurance which insures the Common Properties; and
N.
of Islander Village.
Any attempted cancellation or reduction of insurance coverage insuring all or any part
11.3 Right to AJter Common Properties. Declarant hereby reserves the right, in its sole discretion,
as follows:
A. to aJter all or any portion of the Common Properties to which Declarant holds title; and
B. to mortgage all or any portion of the Common Properties to which Declarant holds
title; provided that the Common Properties shall be free of mortgages at time of conveyance to the Association.
IIA Declarant's Additional Reserved Rights. Notwithstanding anything herein to the contrary,
Declarant shall have tlle right, with respect to the development of Islander Village, to construct buildings and
Parcels and other Improvements and instaJIlandscaping of such type, nature, shape, height, color, materiaJs and
location as Declarant shall determine in its sole and absolute discretion; provided, however, that same shall
comply with the Ground Lease Agreement, applicable building codes and County zoning laws in force at that
time. Until such time as Declarant shall retain a leasehold interest in any portion of the property within Islander
Village, Declarant shall be entitled to place on Land and/or Parcels owned by Declarant temporary construction
or saJes trailers and other temporary facilities and conduct its sales and marketing efforts as Declarant shall
deem appropriate.
ARTICLE 12
DECLARANT'S EXEMPTIONS
Neither the Association nor any Parcel Owner shaJI do anything to interfere with Declarant's activities
at Islander Village. As used in this Section and its subparagraphs, the words "its successors or assigns"
specifically do not include purchasers of individual Parcels. Without limiting the foregoing, nothing in this
Declaration shall be construed or interpreted to:
A. Prevent Declarant, its successors or assigns, or its or their agents, coutractors or
subcontractors, from doing on any property owned by them or on the Common Properties whatever they
determine to be necessary or advisable in connection with the completion of said work, including without
31
limitation, the alteration. and removal of Improvements and the reallocation of any use thereon and the
termination of scrvices as Declarant deems advisable in thc course of development (all models or skctches
showing plans of Islander Village may be modified by Declarant at any time and from time to time, without
notice to any Owner, prospective Owner, or other person or entity)~ or
B. Prevent Declarant, its successors or assigns, or its or their contractors, subcontractors
or representatives, from erecting, constructing and maintaining on any portion of the Property owned or
controlled by dlem or on the Common Properties, such structures as may be reasonably necessary in Declarant's
judgment for the conduct of its or their business of completing said work and establishing Islander Village as a
commwlity and disposing of dle same by sale, lease or otherwise; or
C Prevent Declarant, its successors or assigns, from detennining in its sole discretion the
nanrre of any type of Improvements to be included as part of Islander Village, including Improvements on d1e
Common Properties~ or
D. Prevent Declarant, its successors or assigns, or its or their contractors, subcontractors
or representatives, from erecting, maintaining, altering or od1erwise using signs on d1e Property owned or
controlled by any ofd1em or on d1e Common Properties as may be necessary in connection wid1 d1e sale, lease,
operation or marketing of Parcels or Lots, or od1erwise from taking such od1er actions deemed appropriate in
connection wid1 such signs; or
E. In general, Declarant shall be exempt from all restrictions set forth in this Declaration
to d1e extent such restrictions interfere in any manner wid1 d1e Declarant's plans for operation, construction,
development, use, sale or od1er disposition of d1e Property and/or Islander Village, or any part d1ereof.
ARTICLE 13
DAMAGE OR DESTRUCTION TO COMMON PROPERTIES
Damage to or destruction of all of any portion of d1e Common Properties shall be handled in d1e
following manner, notwid1standing any provision in d1is Declaration to the contrary:
A. In d1e event of damage to or destruction of d1e Common Properties, if d1e insurance
proceeds are sufficient to effect total restoration, d1en d1e Association shall caUSe such Common Properties to
be repaired and reconstructed substantially as it previously existed; and
B. If d1e insurance proceeds are not sufficient to effect total restoration to d1e Common
Properties, d1en d1e Association shall cause such Common Properties to be repaired and reconstructed
substantially as it previously existed and d1e difference between d1e insurance proceeds and d1e actual cost shall
be levied as a Reconstruction Assessment against each of d1e Owners, in accordance wid1 d1e provisions of
Article 6 of d1is Declaration.
ARTICLE 14
INSURANCE AND RECONSTRUCTION
14.1 Owner's Casualty Insurance. Each Owner shall bear d1e risk ofloss and damage to his Parcel
and Dwelling and any and all furniture, personal effects and od1er personal property belonging to such Owner
which property is located eid1er wid1in d1e Parcel, d1e Dwelling or in or on d1e Common Properties. The
foregoing shall not apply: (a) to any property constituting a portion ofd1e Common Properties; or (b) to
fixtures, installations or additions covered by d1e Association's casualty policy as provided in this Declaration.
32
Each Owner shall at the pwner's own expense, obtain insurance coverage for casualty loss of or damage to the
Owner's D,velling Improvement, including ,vithont limitation fire, flood and windstonn upon which Monroe
County, as lessor, shall be named as an additional insured. Insurance coverage for loss to personal propcrly
shall be obtained in the discretion of each Owner.
14.2 Owner's Liability Insurance. Each Owner shall be liable for injuries or damages resulting from
an accident in his own Parcel, to the same extent that a homeowner would be liable for an accident occurring
within his house. Each Owner may, at his own expense, obtain insurance coverage against persoualliability for
injmy to thc person or property of another while within sLlch Owner's Parcel. No Owner shall be liable
pcrsonally for any damages caused by the Association in connection with the LIse of tile Comlllon Properties.
14.3 Reouirements Concerning Owner's Insurancc. All such insurance obtained by any Owner shall,
wherever availablc, state that the insurer waives its right of subrogation as to any claims against: (a) other
Owners; (b) the Association; and (c) the respective servants, agents and guests ofodler Owners.
14.4 Reconstruction of Dwelling. In the eventofloss or damage to a Dwelling and Improvements,
the Owner, widl all due diligence, shall repair, replace and restore such damaged or destroyed portions of the
Dwelling and Improvements within dIe Parcel to a condition as good as dlat before such loss or damage: (a) in
accordance with the original plans and specifications for the Dwelling; or (b) as the Dwelling was last
constructed; or (c) in accordance with plans approved by the Committee. If the Owner shall refuse or fail to
commence repair, replace or restore his Dwelling or Parcel within dlirty (30) days, or to complete such work
within six (6) months, the Association may repair, replace or restore the Dwelling and/or Parcel and charge the
Owner for the cost of such work The Association shall have a lien on the Parcel and Dwelling to secure
reimbursement of such cost:
14.5 Association's Casualty Insurance. The Association shall maintain casualty insurance covering
all insurable improvements within the Common Properties, in accordance with the original plans and
specifications, in an amount not less than 100% of the replacement value thereof (subject to reasonable
deductible clauses), excluding foundation and excavation costs, all as determined annually by the Board. Such
coverage shall afford protection against: (a) loss or damage by fire and other hazards covered by a standard
extended coverage endorsement; and (b) such other risks as from time to time shall be customarily covered with
respect to buildings similar in construction, location and use, including, but not limited to, vandalism and
malicious mischief.
14.6 Association's Liability Insurance. The Association shall maintain comprehensive general
public liability and automobile liability insurance covering loss or damage resulting from accidents or
occurrences on or about or in connection with Islander Village or adjoining driveways and walkways, or any
work, matters or things related to Islander Village or to this Declaration and its exhibits, with such coverage as
shall be required by the Board, but with combined single limit liability of not less than $1,000,000 for each
accident or occurrence, $300,000 per person and $50,000 property damage, and with cross liability
endorsement to cover liabilities of the Owners as a group to a Owner and vice versa.
14.7 Association's Workers' Compensation Insurance. The Association shall maintain workers'
compensation insurance to meet the requirements oflaw.
14.8 Other Tvpes of Insurance. The Association also shall maintain:
A. fidelity insurance covering all officers and employees of the Association;
33
.
Each Owner shall at the pwncr's own expense, obtain insurance coverage for casualty loss of or damage to the
Owner's n\velling Improvement, including without limitation fire, flood and windstonll upon which Monroe
County, as lessor, shall be named as an additional insured. Insurance coverage for loss to personal properly
shall be obtained in the discretion of each Owner.
14.2 Owner's Liabilitv Insurance. Each Owner shall be liable for injuries or damages resulting from
an accident in his own Parcel, to the same extent that a homeowner would be liable for an accident occurring
within his honse. Each Owner may, at his own expense, obtain insurance coverage against personal liability for
injlllY to the person or property of another while within such Owner's Parcel. No Owner shall be liable
personally for any damages caused by the Association in connection with the use of dle Common Properties.
14.3 Requirements Concerning Owner's Insurance. All such insurance obtained by any Owner shall,
wherever available, state dlat the insurer waives its right of subrogation as to any claims against: (a) other
Owners; (b) the Association; and (c) the respective servants, agents and guests of odler Owners.
14.4 Reconstruction of Dwelling. In the event ofloss or damage to a Dwelling and Improvements,
the Owner, with all due diligence, shall repair, replace and restore such damaged or destroyed portions ofdle
Dwelling and Improvements within dle Parcel to a condition as good as that before such loss or damage: (a) in
accordance Widl the original plans and specifications for the Dwelling; or (b) as the Dwelling was last
constructed; or (c) in accordance with plans approved by the Committee. If the Owner shall refuse or fail to
commence repair, replace or restore his Dwelling or Parcel within thirty (30) days, or to complete such work
within six (6) months, the Association may repair, replace orrestore dle Dwelling and/or Parcel and charge the
Owner for the cost of such work. The Association shall have a lien on the Parcel and Dwelling to secure
reimbursement of such cost.
14.5 Association's Casualty Insurance. The Association shall maintain casualty insurance covering
all insurable improvements within the Common Properties, in accordance with the origiual plans and
specifications, in an amount not less than 100% of the replacement value thereof (subject to reasonable
deductible clauses), excludillg foundation and excavation costs, all as determined annually by the Board. Such
coverage shall afford protection against: (a) loss or damage by fire and other hazards covered by a standard
extended coverage endorsement; and (b) such other risks as from tinte to time shall be customarily covered with
respect to buildings similar in construction, location and use, including, but not limited to, vandalism and
malicious mischief.
14.6 Association's Liability Insurance. The Association shall maintain comprehensive general
public liability and automobile liability insurance covering loss or damage resulting from accidents or
occurrences on or about or in connection with Islander Village or adjoining driveways and walkways, or any
work, matters or things related to Islander Village or to this Declaration and its exhibits, with such coverage as
shall be required by the Board, but with combined single limit liability of not less than $1,000,000 for each
accident or occurrence, $300,000 per person and $50,000 property damage, and with cross liability
endorsement to cover liabilities of the Owners as a group to a Owner and vice versa.
14.7 Association's Workers' Comvensation Insurauce. The Association shall maintain workers'
compensation insurance to meet the requirements of law.
14.8 Other Tvpes oflnsurance. The Association also shall maintain:
A. fidelity insurance covering all officers and employees of the Association;
33
B. qirectors' liability insurance, if obtainable, with limits of $300,000;
C. such other insurance as the Board shall determine fro111 time to time to be necessary
and proper.
14.9 Insurer's Waiver. When appropriate and obtainable each of the foregoing policies shall waive
the insurer's right to: (a) subrogation against the Association and against ctle Owners individually and as a
group; (b) the prorata clause ctlat reserves the insurer the right to pay only a fraction of any loss if other
insurance carricrs have issued coverage upon ct,e same risk; and (c) avoid liability for a loss that is caused by an
act of the Board or by an Administrator or by one or more Owners.
14.10 Purchase of Association's Insurance. All authorized insurance for the COlmnon Properties shall
be purchased by the Association. The cost of the insurance shall be a Common Expense, as shall be any other
fees and expenses incurred which may be necessary or incidental to carrying out the provisions hereof, except
that the amount of increase in any premimn occasioned by misnse, occnpancy or abandomnent of a Parcel or its
appurtenances by a Owner shall be assessed against such Owner. Each policy shall be issned by an insurance
company authorized to do business in Florida and with an office or agent located in the County.
14.11 Named Insured. The named insured shall be the Association individually and as agent for
Owners and their mortgagees covered by the policy, without naming them. In addition, Monroe County, as
lessor, shall be named as an additional insured.
14.12 Damage to Common Prooerties. All proceeds from insurance policies insuring Common
Properties shall be paid to the Association.
14.13 Mortgagees. Certain provisions in this Article are for the benefit of the mortgagees of Parcels
and may be enforced by such mortgagees. No mortgagee shall have any right to apply or have applied to the
reduction of a mortgage debt any insurance proceeds except distributions thereof made pursuant to this Article.
No mortgagee shall have any right to determine or participate in the determination as to whether or not any
damaged property shall be reconstructed or repaired.
14.14 Association as Agent. The Association is hereby irrevocably appointed agent for each Owner
and mortgagee to adjust all claims arising under insurance policies purchased by the Association to insure the
Common Properties and to execute and deliver releases upon the payment of claims.
14.15 Determination to Reconstruct or Reoair. The Association shall be responsible for
reconstruction and repair after casualty loss or damage to the Common Properties.
14.16 Plans and Soecifications. Any reconstruction or repair of any of the Common Properties must
either be: (a) substantially in accordance with the original plans and specifications for the original
improvements; or (b) according to plans and specifications approved by the Committee.
14.17 Resoonsibility to Insure Imorovements. Each Owner shall insure the Improvements owned by
such Owner. Insurance coverage for the Parcels shall include all-perils, including, without limitation, hazard,
fire, windstorm and flood. The cost of such insurance shall be borne by the Owner. Insurance for each Parcel
shall be in an amount equal to the full "replacement" value thereof. The term "replacement value" means one
hundred (100%) percent of the then current replacement costs, exclusive ofland, fom,dation, items of personal
property and other items normally excluded from such coverage. Upon the written request of any Owner
34
within a Building maileq by certified mail, return receipt requested, the requested Owner shan provide written
proof of insurance to the requesting Owner by certified mail, return receipt requested.
ARTlCLE 15
MORTGAGEE PROTECTION CLAUSE
The fonowing provisions arc added hereto (and to the extent these added provisions conflict with any
other provisions of the Declaration, these added shan control):
A. Each institutional first mortgagee holding encillnberiog any Parcel, at his written
request, is entitled to written notification from the Association of any default by tlle Owner of such Parcel in tlle
perfonnance of such Owner's obligations under this Declaration, tlle Articles of Incorporation of the
Association or tlle By-Laws of tlle Association, which default is not cured within tllirty (30) days after tlle
Association learns of such default and to written notification of the recording of a Claim of Lien pursuant to
Article 7.
B. Unless at least 66-2/3 % of such mortgagees (based upon one vote for each such
mortgage owned), and at least 66-2/3% of the votes of Members of the Association, have given their prior
written approval, neitller the Association nor tlle Owners shall:
1. by act or omission seek to sen or transfer the Common Properties and the
Improvements tllereon which are owned by the Association (the granting of
easements for utilities or for other such purposes consistent with the intended
use of such property by the Association or the Declarant or the transfer of the
Common Properties or any portion thereof to another not for profit
association of the Owners io accordance with the Articles ofIncorporation of
the Association or dedication of such property to the public or condominimn
ownership shan not be deemed a transfer within the meaning of this clause);
2. fail to maintain fire and extended insurance on insurable portions of the
Common Properties as provided herein; or
3. use hazard insurance proceeds for losses to any Common Properties for other
than the repair, replacement or reconstruction of such Improvements (except
as contemplated herein);
C. Such mortgagees shan have the right to examine the books and records of the
Association during normal business hours.
D. An such mortgagees who have registered their names with the Association, and as long
as it owns a mortgage on any Parcel, shan be given (I) thirty (30) days written notice prior to the effective date
of any proposed, material amenthnent to this Declaration or the Articles ofIncorporation or By-Laws of the
Association and prior to the effective date of any termination of any agreement for professional management of
the Common Properties hereafter entered into, if any, fonowing a decision of the Owners to assmne self-
management of the Common Properties; and (2) immediate notice fonowiog any damage to the Common
Properties whenever the cost of reconstruction exceeds One Roodred Thousand Donars ($100,000.00), and as
soon as the Board learns of any threatened condemnation proceeding or proposed acquisition or any portion of
the Common Properties;
3S
E. ~uch mortgagees may, jointly or singly, pay taxes or other charges which are in default
and which mayor have become a charge against any portion of the Common Properties and may pay any
overdue premiullls 011 hazard insurance policies, or secure new hazard insurance coverage on the lapse of a
policy, for such property, and such mortgagees making such payments shall be owed immediate reimbursement
therefore from the Association and the appropriate Owners.
ARTICLE 16
ENCROACHMENTS AND EASEMENTS
16. I Easements in General. If any grant of any easement in this Declaration would otherwise fail by
virtue of the nonexistence of the grantee thereof as of thc date of tlns Declaration, then the Association
automatically shall be deemed to be tlle attorney-in-fact for such grantee to hold the interest created by such
graut of easement until such grantee shall come into existence, at which time the interest created by such grant
of easement automatically shall become vested in such grantee. The Common Properties shall be subject to a
perpetual non-exclusive easement in favor of each Parcel, which shall be appurtenant to and shall pass with title
to each Parcel, for use by the Owner, his immediate family, guests and invitees, for all proper and normal
purposes including ingress and egress. TIle Common Properties also shall be snbject to such a perpetual non-
exclusive easement in favor of Owner and Declarant and their respective agents, employees, invitees,
successors and assigns.
16.2 Easements for Public and Private Utilitv Facilities. Drainage and Access. It being understood
that at the time of the recording of this Declaration the exact location of utility facilities, drainage facilities and
appnrtenant equipment witllin Islander Village have not yet been determined, Declarant hereby reserves for
itself, its successors and assigns, such perpetual easements as are necessary and required over, llllder, upon
and/or through the Property for ingress, egress and access to and the installation construction, operation,
alteration, expansion, repair, replacement and maintenance of utilities, cable television, drainage facilities and
roadways for ingress and egress. This reservation hereby grants to the utility entities and the Declarant (so long
as Declarant is constructing, repairing or relocating utilities and facilities appurtenant thereto in aid of
construction of the property) the right of ingress, egress and access to and the rightto construc~ install, operate,
alter, expand, replace and maintain such utilities, cable television, drainage facilities and roadways for ingress
and egress witlrin any part of the Property, provided, however, use of such easements and intprovements shall
not unreasonably interfere with the use of the Property for the purposes intended for the Parcels. In order to
accomplish the foregoing, each portion of the Property shall have an easement in common with all other
portions thereof to use, maintain, repair, alter or replace all pipes, wires, ducts, vents, cables, conduits, utility
lines, sanitary sewers, storm drains, water lines, manholes, lift stations, pumping stations and similar or related
facilities located within the Property and serving such portion or portions. Each portion of the Project shall be
subject to an easement in favor of all other portions thereof to use, maintain, repair, alter and replace the pipes,
wires, duets, vents, cables, conduits, utility lines sanitary sewers, storm drains, water lines, manholes, lift
stations, pumping stations and other similar or related facilities located in such portion of the Property and
serving other portions thereof. Independent of the foregoing rights, Declarant, its successors or assigns, and
Association are hereby granted the additional right to grant such additional easements or relocate existing
easements throughout the Property as Declarant or Association may deem necessary and desirable provided that
snch additional easements or relocation of easements do not unreasonably interfere in the use oftlle Property
for the purposes so intended, and further provided that in the event of a conflict in decisions between Declarant
and Association, the Declarant's decision shall control until such tinte as all Parcels have been constructed and
transferred by Declarant to third-party Owners. Easements are reserved llllder, through and over the Common
Properties as may be required from time to time for sewer, utility and drainage in order to serve dle
Condominium or Association. A Parcel Owner shall do nothing within or outside its Parcel that interferes with
or impairs, or may interfere with or intpair, the provision of such sewer utility or drainage facilities or the use of
36
these easements. The A~sociation shall have a right of access to each Parcel to maintain, repair or replace any
Common Properties, including, without limitation, pipes, sevver lines, drainage lines and other components of
the Common Properties, if any, without the requirement of giving of notice to Parcel Owner.
16.3 Easements for Maintenance. Easements arc hereby reserved in favor ofthe Association under,
upon, across, through and over all portions of Islander Village for the purpose, as deemed necessary by the
Association for preserving and maintaining the land, Parcels and carrying out its responsibilities under this
Declaration; provided, however, that all such activity shall be undertaken in a manner so as to minimize
interference with any Owner's use of his property. Where any land, including any Improvementlhereon, ("the
Servient Estate") shall abut an adjacent lot line ("the Dominant Estate"), then the Owner ofthe Dominant Estate
shall have an easement over the Servient Estate, which easement shall only be to extent necessary and in any
event not to exceed four (4) feet wide contiguous to the interior property line rmming from the fronlto the rear
property line of the Servient Estate for the purpose of entry upon and ingress and egress through the Servient
Estate with persons, materials and equipment to the extent reasonably necessary in the performance of
maintenance, repair, replacement of any of the hnprovements or permitted by the Association.
16.4 Easement for Pedestrians. In addition to the general easements for use of the Common
Properties reserved herein, there shall be, and the Declarant hereby reserves and covenants for itself and all
Owners with Islander Village that each and every Owner, and Declarant and their respective licensees, invitees,
grantees, successors and assigns as permitted by Association, shall have, a non-exclnsive easement appurtenant
for pedestrian access over, through and across all pedestrian access ways within the Common Properties,
subject to the parking provisions of this Declaration. Association and any Member which is required to join in
the grant of any such easement shall be obligated to execute any snch instrument as may be requested of it from
time to time to affect snch grant of easement.
16.5 Easements for Public and Private Utility Uses. In addition to the foregoing easements
affecting the Common Properties, there shall be, and Declarant hereby grants perpetual easements for
public, Federal, State, County, City and private utility and other services, including, but not limited to, the
right of the police to enter upon, pass over and across any part of the Common Properties for the purpose of
enforcing the law or maintaining secmity, and the right of all lawful emergency vehicles, equipment and
persons in connection therewith to enter upon, pass over and across all portions of the property to service
the Declarant, Owners, residents and all Improvements and the right of all public and private utility
companies to install, construct, operate, alter, expand, repair, replace and maintain their equipment and
facilities in areas designated for such purposes. Independent of the foregoing rights, Declarant, its
successors or assigns, and Association are hereby granted the additional right to grant such additional
easements or relocate existing easements throughout the Property as Declarant or Association may deem
necessary and desirable provided that such additional easements or relocation of easements do not
unreasonably interfere in the use of the Property for the purposes so intended, and further provided that in
the event of a conflict in decisions between Declarant and Association, the Declarant's decision shall
control until such time as all Parcels have been constructed and transferred by Declarant to third-party
Owners. The Association has the irrevocable right of access to each Parcel during reasonable hours, when
necessary for the maintenance, repair, or replacement of any Common Properties or of any portion of a
Parcel to be maintained by the Association pursuant to this Declaration or as necessary to prevent damage
to the Common Properties, including, without limitation, the Surface Water Management System.
Easements are reserved under, through and over the C01111110n Properties as may be required for utility
services and drainage serving Islander Village. The Association shall have the right of access to each
Parcel to inspect, install, maintain, repair or replace the Drainage System, the Surface Water Management
System and the Main Sewer Line. When required for such maintenance, repair or replacement, the
Association shall have the irrevocable right to remove any property within a Parcel for the purpose of
37
gaining accessibility to th.e Main Sewer Line to be maintained, repaired or replaced. No Parcel Owner shall
commit or allow to be committed any act within or without its Parcel which would interfere with or impair
any of the ntility providers using the easements granted herein.
16.6 Easements for Access, Repair and Maintenancc. Declarant rescrves unto itself, and its
successors and assigns, perpetualllon-exclusive easements of ingress and egress over and across the access
ways existing from time to time in Islander Village, and perpetual non-exclusive easement to enter npon, over,
under or throngh all portions ofthe Property for the purpose of maintaining, repairing and replacing the Parcels,
Improvements of Parcels owned by Declarant and tlle Connnon Properties which easements shall be for the use
of Declarant, Association (and its and tlleir respectivc snecessors and assigns), Owners, and their respective
lessees, employees, agents, invitees and licensees. Declarant hereby expressly retains the right to grant
easements and rights to the public through, over, under and upon the Common Properties and other property
within Islander Village and to grant easements and rights to such municipal and govenunental authorities as
required from time to time, including, WitllOut limitation, water management agencies.
16.7 Emergency Access. The Association shall have the right, privilege and license to enter upon
any Parcel and upon and across the Common Properties for the purpose of effecting any emergency repairs to
that same Parcel or to any other Parcel and/or exterior portion of any improvements thereon and/or to any
Common Properties and to do such other maintenance and repairs as shall be reasonable necessary for the
proper maintenance and repairs as shall be reasonably necessary for the proper maiutenance of the same Parcel
or of any other Parcel or of the Common Properties abutting such Parcel, to the extent permitted under this
Declaration.
16.8 Easement for Construction and Sales. Declarant (and its agents, realtors, salespersons,
employees, conttactors, subcontractors and suppliers) shall have an easement of ingress and egress over,
under and across the Common Properties for construction purposes and to erect, maiutaiu, repair and
replace, from time to time, signs on the Common Properties for the purposes of advertisiug and sale and/or
lease of Parcels or Lots and for the operation of any permitted enterprise within Islander Village. In the
event of such construction, portions of the Common Properties may be shut off from general access and
use, and noise, dust and other disturbances will be likely. All Owners hereby agree that such disturbances
have been accepted by them and they waive any and all claims or objections as a result of or iu relation to
such disturbances. No liability shall be assumed by Declarant by reason of the foregoing.
16.9 Common Walls and Roofs-Easements and Encroachments. The residential dwellings for
Parcels have been constructed iu such a manner that not less than two adjoiuing residential dwelliugs have
a common airspace between the exterior walls of the adjoiuiug Dwelling (each a "Common Wall") and a
common roof (each a "Common Roof'). The Common Roof consists of a roofing structure known as a
"Cricket." Exhibit D (Cricket Plan) attached hereto shows a typical Cricket construction. The Cricket shall
be a Limited Common Property for the exclusive use of the adjoiniug Parcels and shall be maintaiued by
the Association. Other than the Cricket section of a Common Roof, the roof structure for each Dwelling,
includiug all gutters and down spouts located within the Owner's Parcel, shall be part of the Parcel to be
maiutained by the Parcel Owner. Each adjoining Parcel shall have all necessary easements of support,
easements for repairs and maiutenance and rights of encroachments required to maiutain, repair and/or
reconstruct the Common Walls and Common Roofs. In the event of damage or destruction of the Common
Wall or Common Rooffrom any cause whatsoever, other than the negligence or willful misconduct of an
Owner thereto, each Owner shall promptly repair or reconstruct that portion of the Common Wall or
Common Roof lying within the Owner's Parcel. Each Owner shall have the right to full use of said
Common Wall and Common Rooflyiug within the Owner's Parcel, including that portion of the Common
Wall or Common Roof so repaired or rebuilt. If an Owner's negligence or willful misconduct causes
38
damage or destlUction of said Common Wall or Common Roof, the Owner guilt)' of such negligence or
willful misconduct shall be liable to the adjacent Owner for the entire cost of such repair or reconstruction.
16.10 Easements for Electric Meters, Telephone, Communication Cables and Connections. Each
of the adjacent Dwellings shall have a reciprocal easement for the installation of utili!)' lines, including
electric, telephone, communication cables for television, illtenlet access and similar communications and
for the placement of electric meters by the utili!)' provider. The Declarant shall designate one or more
Dwellings within a Building for the purpose of installing two or more electric meters for Dwellings within
the Building and for establishing a demarcation point from which to run comnumication cables for
Dwellings within the Building. The Parcel having the Dwelling with the electric meter(s) installed for
other Dwellings within the Building shall have granted a continuing easement necessary for the use,
replacement, maintenance and other necessary accommodations for the electric meter over, across, and
under the Parcel, including the area designated by Declarant for the location of the electric meter(s) for the
Parcels.
16.11 Easement of Internal Roadwav. The Parcel Owners, their guests and invitees, have been
granted a perpetual easement for ingress and egress to the easterly portion of the Islander Village (as shown
in Exhibit C) and for the installation, repair, maintenance and use of underground utilities and landscaping
pursuant to that certain Grant of Easement, as recorded in Official Records Book 2301, Page 417, Public
Records of Monroe Coun!)', Florida. The Association and all Parcel Owners, their guests and invitees,
shall be subject to the terms and conditions of the Grant of Easement (Exhibit F attached hereto).
ARTICLE 17
GENERAL PROVISIONS
17.1 Constructive Notice and Acceotance. Every person who owns, occupies or acquires any right,
title, estate or interest in or to any Parcel, or other portion ofIslander Village shall be conclusively deemed to
have consented and agreed to every limitation, restriction, easement, reservation, condition and covenant
contained herein, whether or not any reference hereto is contained herein, whether or not any referenced hereto
is contained in the instrument by which such person acquired an interest in such Parcel or other property within
Islander Village.
17.2 Duration. The covenants, conditions and restrictions of this Declaration shall run with and
bind the Land, Parcels in Islander Village and shall be enforceable by the Association or any Owner, their
respective legal representatives, heirs, successors, and assigns, for a term of the Ground Lease Agreement.
17.3 Amendments. This Declaration may be amended by Declarant unilaterally from time to time
and at any time and without the joinder of any Owner: (a) to accomplish any of the purposes or objectives set
forth in this Declaration; and/or (b) to correct any scrivener's errors. This Declaration also may be amended
with the written consent not less than six!)'-seven percent (67"10) of the Owners and the approval by Institutional
Lenders holding at least six!)'-seven percent (67%) of the mortgages on Parcels in Islander Village; provided,
however, that no amendment shall be enforceable against Declarant so long as Declarant owns any Lot or
Parcel within Islander Village, unless Declarant has consented in writing to such amendment, and (c) no
amendment shall materially and adversely affect any provision granting easements or perruitting encroachments
or any provision concerning Institutional Lenders without a majori!)' consent of all Institutional Lenders then
having mortgages on Parcels. Each amendment shall be recorded in the Public Records of Monroe Coun!)',
39
Florida. NOhvithstanding any other provision of this Declaration, no amendment shall be effective until
approved by Monroe County as provided in Section 12.01 of the GrOlUld Lease Agreement
17.4 Covenants Rwming with the Land. Anything herein to the contrary notwithstanding, the
covenants, conditions, restrictions and easements of this Declaration shall be covenants running with the land.
If any provision or application of this Declaration would prevent this Declaration from fUlllling with the land as
aforesaid, such provision and/or application shall be judicially modified, if possible, to reflect the intent of such
provision or application and then shall be enforced in a manner allowing the covenants, conditions, restrictions
and easements to so fUn with the land. In the event that any such provision and/or application cannot be so
modified, such provision and/or application shall be unenforceable and considered null and void in order that
the paramount goal of the covenants, conditions, restrictions and easements hereof fUlming with the land shall
be achieved.
17.5 Enforcement: No Waiver. Any Owner, including the Declarant, and the Association shall have
the right to enforce the provisions of this Declaration by any proceeding at law or in equity against any
person(s) or entity(ies) as follows:
A. For violating or attempting to violate any covenant or restriction, either to restrain such
violation, to recover damages or to enforce performance and against the applicable Lot and/or Parcel to enforce
any lien created herein;
B. The result of every act or omission whereby any of the covenants contained in this
Declaration or the By-Laws are violated in whole or in part is hereby declared to be and does constitute a
nuisance, and every remedy allowed by law or equity with respect to nuisances either public or private shall be
applicable and may be exercised by Declarant, Association or Owners;
C. Remedies herein provided for breach of the covenants contained in this Declaration or
the By-Laws shall be deemed cmnulative, and none of such remedies shall be deemed exclusive;
D. The failure by Declarant, Association or any Owner to enforce the provisions of this
Declaration shall in no event be deemed a waiver of the right to do so thereafter;
E. Where litigation shall occur to enforce said provisions or to recover damages or to en-
force any lien created herein, the prevailing party in such litigation shall be entitled to recover court costs and
reasonable attorneys' fees, including court costs and reasonable attorneys' fees in any appellate proceeding; and
F. A breach of the covenants, conditions or restrictions contained in this Declaration or in
the By-Laws shall not affect or impair the lien or charge of any mortgage made in good faith and for value on
any Parcel and/or Dwelling; provided, however, that any subsequent Owner of such Parcel and/or Dwelling
shall be bound by said covenants, whether such Owner's title was acquired by foreclosure sale or otherwise.
17.6 Severabilitv. Invalidation of any portion of this Declaration by judgment, court order or statute
shall in no way affect any other provisions which shall remain in full force and effect.
17.7 Gender and Plurals. The use in this Declaration of the male gender shall include the female
and neuter, and the use of the singular shall include the plural and vice versa, as the context requires.
40
17.8 Notices. Any notice required to be sent hereunder shall be deemed to have been properly sent
when delivered or mail~d, postage prepaid, to the last known address of the Owner or other addressee on the
records of the Association at the time of such mailing.
17.9
Exhibits. The following exhibits are attached to this Declaration:
~
Exhibit A - Legal Description of Property
Exhibit B - Ground Lease Agreement
Exhibit C - Site Plan for Islander Village and Parldng Plan
Exhibit D - Cricket Plan
Exhibit E - Swale Plan
Exhibit F - Grant of Easement.
IN WITNESS WHEREOF, the undersigned have executed this Declaration on this ~ of
,2008.
d~~
STATE OF FLORIDA )
COUNTY OF MONROE )
BEFORE ME, a Notary Public, personally appeared Edwin O. Swift, III, as general partner of DRIVE
IN, L TO., a Florida limited partnership, as Manager ofIslander Village, LLC, a Florida limited liability
company, who did acknowledge before me that he executed the foregoing instrument for the uses and purposes
therein set forth, for and on behalf of said limited liability company. He is personally known to me and did not
~an~. ~
,,_;0
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at the county and state
aforesaid, this j)"day of ~ 2008. ar' ~ f~
T~LlC, tate of Florida
at Large
My commission expires:
.,o!,'i)''''~~t' Marion Hope Casas
iff \1;i Commission # 00325062
~""" J.: Expires July 21, 2008
~ f' 8oncs.d Troy Faln-jnSUllnot, Inc. aoo.lI6.7019
41
c:.Ol'iSENT AND J01l'iDER OF MOKl'GAGEE
ORION BANK, a Florida baDkiDg COlJ'cnalioo, being 1hc owner """ ho1dor of \he mortgage Ii_
encumberin& \he parcel of _I prvperlY described in 1hc folegoiull J)ec\BlatiOl1 as evidenced by lhat cer1Bin
Mortgage recorded in offic:ia! \W:ords Book 2315, Page 396""" UCC-I F~.n~ing Statement recorded in
Official \W:Ords Book 2315, Page 437, Public Records of Monroe County, Florida, hereby consenIll to Iud
joina in tbIl fding of the !)ec1araIion fur the purpoae of su\l<J[diDatina ita mortgage lien to the tenDS ",d
conditious of 1his Declanltion.
.rJ>
l'blscoosentofMortgageeisexecuted1hisT1 day of r....... c::. ,2008.
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By: ;;;;.it!...J'L; as
~" Vice . t
0'.t},a~~
STATBOFFLORlDA )
M. )ss:
COUNTY OF II()N~
. Before""'persona1lyappcared 0EF"'~'i ~ITH...~PRsidentOfORIONBANK.
a Florida bankiDg COlJ'cnaIiOI1 (~DlC ko<IWD to be the iJldjv\duaIlI described in. or () who produ<:ed Florida
driver's Ii....... fur idenlilicatiOD, """ ( ) did (}did DOt take '" oath.
WITNBSS, my bond """ ofti<:ial aeaI,1his ~daY odJ.lc;" .2008.
My CommissiOl1 expires: I /" 11 ~I '"
~G~U-Jo~
NotaryPub' , ofF1orida at Large
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CONSENT OF MORTGAGEE
ORION BANK, a Florida banking corporation, being the owner and holder of the
mortgage liens encumbering the pan:el of real property described in the fo>csuiug
Declaration as evidenced by that certain Mortgage recorded in Official Records Book
2315, Page 366, Assignment of Renm recorded in Official ReCords Book 2315, Page 422,
UCC-I Financing Statement recorded in Official Records Book 2315, Page 432,
Mortgage recorded in Official Recorda Book 2315, Page 396 and Ucc.l Financing
S1lltement recorded in Official Records Book 2315, Page 437, PlIblic Records ofMomoo
County, Florida, hereby consenm to and joins in the filing of the Declaration for the
purp08e of subordinating its mortgage lien to the limns and conditiOtlS of Ibis Declaration.
rJ.
This consent of Motlpgee is executed this ",'1:::11ay of ;:J.;... C . 2008.
~~
~~
By: ~~"'TI
IIG;Vice President ...
STATE OF FLORIDA )
) SS:
. COUN1YOF 1'1c.J~)
~ <:::::' "rI"
BelOre me perlIOnally appeared I2:FF~ 'I 0.. l-ni . as Vice
President of ORION BANK, a Florida blmlrlt,g corporation ~ me known to be the
individuals described in, or ( ) who produced Florida driver's licenses fur identification,
and ( ) did (.r3id not take an oath.
WITNESS, my hand and official sea\, this ~ day otV,tJf:. . 2008.
My Commission expires: II~ '1 J ~I ~
~GYUA,~
Notmy' lie, State of Florida
at Large
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CONSENT OF MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA, being the Landlord under that certain 99-year Ground Lease
Agreement (the "Ground Lease Agreement") as recorded in Official Records Book 2301 at Page 365,
Public Records of Monroe County, Florida, hereby consents to the filing of the Declaration for the
purpose of approving the terms and conditions as set forth in the Declaration as being consistent with
the terms and conditions of the Ground Lease Agreement.
This Consent of Monroe County, Florida is executed this _ day of
,2008.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
(SEAL)
Mario Di Gennaro, Mayor
ATTEST: CLERK OF THE COURT, Danny L. Kolhage
By:
Deputy Clerk
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
(1 Ul "
SUSAN M. GRI LEY
ASSI;TANT COUNT ATTORNEY
Date ~lA.J~. ,3 ,':Lttr',;tP'
,
43
EXHIBIT "A"
Doc$! 1641623
Bk$l 2301 Pg~ 409
LEGAL DESCRIPTION
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 I, 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, said point also being the NW'ly comer of
LINCOLN GARDENS NO.2 SUBDIVISION, as recorded in Plat Book 5, at Page 90, of the
Public Records of Monroe County, Florida; thence continue West and along the S1y Right-of-
Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence run South for a distance
of79.47 feet; thence run S 3 degrees 00' 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 43 degrees 00';
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 degrees 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 of 95 degrees 00'; 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 curve; thence
run N 45 degrees 00' 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 II degrees 49' 24"; thence run NE'ly
along the arc of said curve for a distance of 17.95 feet; thence run East for a distance of 37.33
feet; thence run S 74 degrees 58' IS" E for a distance of 72.32 feet to a point that is on the W'ly
boundary line of the said LINCOLN GARDENS NO.2 SUBDIVISION; thence run North and
along the W'ly boundary line of the said LINCOLN GARDENS NO. 2 SUBDIVISION 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.
Page 45 of 52
EXHIBIT
I A
D1oe{~ :1 647623
Bk~ 2301 ~g~ 410
EXHIBIT "B"
DEPICTION OF PROJECT LAYOUT
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Page 46 of 52
Doca 1647623 06/12/2007 4:47PM
Filed & Recorded in Offieial Records of
MONROE COUNTY DANNY L. KOLHAGE
Doc:a 1647623
Bka 2301 Pga 365
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
ISLANDER VILlAGE, LLC
"LESSEE"
DATED April 18, 2007
EXHIBIT
I~
Doell 1647623
Bkll 2301 PglI 366
Table of Contents
Articl e Title Page No.
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
XVIlI Additional Covenants of Lessee, Lessor 36
XIX Representations, Warranties of Title and Quiet 38
Enjoyment
XX Miscellaneous 38
Page 2 of 52
Doc" 1647623
Bkn 2301 Pgn 367
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Kev 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, subjectto
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
Doell 1647623
Bkll 2301 Pgll 368
upon an owner/Sublessee/mortgagee would beto divest such person or entity of val ue 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 orthe 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 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.
"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
Doell 1647823
6kU 2301 Pg~ 368
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" shan mean the required development of the Demised Premises, primarily
the required construction of Affordable Housing U nits 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
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particularly discussed herein or in the Affordable Restrictions) and any security, mortgage,
note or other interest at a form and type cllstomarily 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" 01' "Owner" shall be broadly and liberally construed so as to mean an
individual Mfordable 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 ofthe 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 alIowed by this
Lease) of an Affordable Housing Unit. AdditionalIy, 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, aU Subleases and rights or interests granted thereunder shaU
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) Corditions, 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 he 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
throughoutthe term of this Lease, provided that upon transfer of control oftheAssociation
by r nitial 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
la\\fulmoney 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, rehuilding, 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 !'>.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.
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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 requircd to be paid shall belong to Lessec.
Section6.04 Mode ofPaymcnt. The Lessec (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 dcliver receipts as may be required by the Affordable Restrictions),
which payment of taxes shall bc made and the reccipts 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, howcver, 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 6.0<=; Lessee's Default. lfthe 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 ofthis 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
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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 ofthe Demised Premises and the Lessor's
interest therein to be released from the legal effect of such claim.
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Section 7.01 hessee's Default. If the Lessee shalt 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 ofthe 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 Governin~ 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.
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ARTICLE IX
Indemnification of Lessor
Section Q.Ol Indemnification bv 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 ofthe 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 I nitial 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.
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Section <).02 Lnsurance. 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 hy such policies. Any loss
adjustment shall require the ,."ritten consent of both the Lessor and Lessee.
Section <).01 Policv 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 ofthe risk, which amount
shall not be less than the full Replacement Cost value of the relevant portions of the
Demised Premises, and all of such policies of insurance shall include the name of the Lessor
as an additional insured and shall fully protect both the Lessor and the Lessee as their
respective interests may appear. In the event of destruction of buildings or improvements
by fire, flood, windstorm or other casualty for which insurance shall be payable and as often
as such insurance money shall have been paid to the Lessor and the Lessee, said sums so
paid shall be deposited in ajoint account of the Lessor and the Lessee in a bank designated
by the Lessee and located in the County in which the Demised 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, "'~ndstorm 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 Is-month
period for reconstruction shall be enlarged by delays caused without fault or neglect on the
part ofthe 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 ofinsurance 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.
I n 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 10.0'3 Environmental Imoairment Responsibilitv. 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, atthe 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 10.00; Proceeds Pavable to Morte:ae:ee. 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 Damae:es: 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
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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 Reoayment. 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 Reauirements. 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 1O.0Q Subsequent Lessees. Assie:nees. 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 Mfordable 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
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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
Assilmment/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
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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 notto 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 sha11 be deemed consent to sell the
Affordable Housing Units in bulk at prices allowed under the Affordable Restrictions to the
identified party. Additionally, Initial Lcssee 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
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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 noticc
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), tothe 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 Develooer /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 shan 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 win be set forth in Exhibit F to this Lease.
Section 12.0~ Assil!:nment/Transfer bv Sublessees. At such time as any individual
Unit Ovmer 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.
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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 ofthe 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 BESUBJECfTO CERTAIN RESTRlCfIONS 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 12.01> 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.
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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 priee 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 ofthe 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
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Paragraphs a. . d., above, for Affordable Housing Units to be used for
affordable rentals in accordance "dth 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 vvith 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 vvill abide by the rules and regulations of the Association, and
Sublessee shall provide the Association vvith 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 tvvice in any calendar year, Sublessee hereby agrees
not to renew said lease vvithout first obtaining the approval of the Association
Board of Directors, and said approval may be vvithheld in their sole and
absolute discretion. Any rental agreement shall contain the follovving warning
prominently set forth in writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAYrER83
FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOa STORAGE OR DISPOSITION OF THE LESSEE'S
PERSONAL PROPERTY.
Section 12.06 Assi~nment 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 vvith respect to any of the
Demised Premises do not extend to any degree so as to limit or inhibit the intent and
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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
U nit in accordance with the provisions of this Article XII and cooperate with the Lessor in
accomplishing same. It is the intent ofthis 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 identitY a purchaser, Lessor shall
still be entitled to an administrative fee of one and one-half percent (11/2 %) ofthe 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 1'1.01 Eminent Domain: Cancellation. If, at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain, there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
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adjustments made as'shall bejustand equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (30) days after such award has been
made, then the matters in dispute shall be determined in accordance with the rules of the
American Arbitration Association. Such determination made by the arbitration shall be
binding on the parties. If the legal title to the entire Demised Premises be wholly taken by
condemnation, the Lease shall be cancelled.
Section 1 't.02 ADDortionment. 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
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(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 I nitial 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 wning
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.
(D 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
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holders or against persons for any other benefit or service under this Lease because of their
race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap
where the handicap does not affect the ability of an individual to perform in a position of
employment, and to abide by all federal and state laws regarding non-discrimination.
14.02 Access to the Proiect and Inspection. The Lessor or its duly appointed agents
shall have the right, at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county
or State code or building inspectors, and the like, without limitation. Initial Lessee shall
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
Morte:ae:e Financine:
Section 1<;.01 Construction Financing Bv 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.
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(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 mOltgage 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 of this Section lS.01(d) prior to the cure provisions set forth in Section lS.D1(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 ",1th 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.
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Any nc~ Lcasc referred to in this Section IS.DI(d) shall not require any
execution, acknowledgement or delivery by the Lessor in order to become effective as
againstthe 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 I5.01(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 of its (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 IS.DI(f) below.
(0 In the eventthat aO leasehold mortgagee(s) shall become the owner or
holder of the Lessee's interest by foreclosure of its(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 ofInitial
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.
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(g) Within ten (10) days after Lessor's receipt of written request by Initial
Lessee or by Initial Lessee's leasehold mOltgagee(s), or after receipt of such written request
in the event that upon any sale, assignment or mortgaging of! nitial 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 wi.th 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).
(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, together with written notice setting forth the
name and address of the assignee(s).
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(1) tn 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. Thc 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 IS.01, to elect to deal primarily or
excl usively .vith a mortgagee whose position is primary or in first order of priority with
respect to foreclosable interests or rights according to the laws of the State of Florida or as
contractually agreed by and among multiple mortgagees, where there are such.
Section 1<;.02 Permitted Morte:ag-es for Sublessees (Unit Owners). The individual
Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage
their interests in any Sublease, improvements or any associated portions of the Demised
Premises related to their interests in the individual Affordable Housing Units to a Federal
or State Savings Loan Association, Bank, Trust Company or similar lending institution,
subject to the following requirements:
(a) The mortgagees) encumbering the Affordable Housing Unit shall not
exceed 100% of the maximum allowable sale price of the Affordable Housing Unit as set
forth in the Affordable Restrictions;
(b) Sublessees shall not be entitled to mortgage their respective leasehold
interests in the event the terms of the note, which is secured by the mortgage, may result in
negative amortization, unless otherwise approved by Lessor;
(c) For informational and record keeping purposes, Sublessees shall present
to Lessor (0 a copy of approval(s) for loans encumbering their Affordable Housing Unit
within five (S) business days after such loans are approved, and (iO no sooner than five (S)
business days before the scheduled loan closing date, a copy of the owner's and/or any
lender's title insurance commitment. Lessor's failure to approve or object to any of the
foregoing documents prior to the closing of a relevant loan shall not preclude closing of the
relevant loan and shall not constitute an opinion or confirmation by Lessor that the
corresponding loans or title insurance policies comply with or conform to the requirements
of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of
Lessor's rights to enforce same;
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(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 offoreclosure with
respect to any real property subject to the provisions of this Lease, said mortgagee, orthe
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 offoreclosure 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.
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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 necessalY 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 ofthis 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.
I ncluded 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 snch 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 Snblessee 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 prO\~ded, 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 thereoffor such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such Rent or Rents and on such other
terms and conditions as Lessor in its sole reasonable discretion may deem advisable with
the right to make alterations and repairs to the Demised Premises. On each such re-Ietting
Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other
than Rent due under this Lease, the expenses of such re-Ietting and of such alterations and
repairs, incurred by Lessor, and the amount, if any, by which the Rent reserved in this Lease
for the period of such re-Ietting (up to but not beyond the term of this Lease) exceeds the
amount agreed to be paid as Rent for the Demised Premises for such period of such
re-Ietting,
Notwithstanding any such re-Ietting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach. Should Lessor at 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 16.0'1 Lessor's Rie:ht 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
sball 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 16.01;. 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
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they pertain to their i'espective 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 oc.cupants 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
Reoair 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 S2
Doell 1647623
Bkll 2301 Pgll 401
Section 18.01 'Recovery of Litigation Exoense. In the event of any suit, action or
proceeding, at law or in equity, by either of the palties hereto againstthe 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 atthe
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 18.0<; 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 underwriters.
In no event shall hazardous waste be disposed of in or about the Demised Premises. For
purposes herein, the term hazardous materials or substances shall mean any hazardous,
toxic or radioactive substance material, matter or waste which is or becomes regulated by
any federal, state or local law, ordinance, order, rule, regulation, code or any other
governmental restriction or requirement and shall include petroleum products and asbestos
as well as improper or excessive storage or use of common household cleaning and
landscaping chemicals, pesticides, batteries and the like, and those materials defined as
hazardous substance or hazardous waste in the Comprehensive Environmental Response
Compensation and Liability Act and/or the Resource Conservation and Recovery Act.
Page 37 of 52
Docl::t 1647623
Bka 2301 Pga 402
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
Re1,>resentations. Warranties of Title and Ouiet Enioyment
and No Unlawful or Immoral Purpose or Use
Section 1Q.Ol Reoresentations. Warranties of Title and ~uiet Eniovment. 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 Puroose 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 Runnin~ 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
Doell 1647623
Bkll 2301 PglI 403
subletting applicable io 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 20.01 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
Do"~ 1647623
Bk~ 2301 Pg~ 404
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 20.1::l 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 Maieure. 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 Ol'
other severe weather events, war or other reasons of like nature not the fault of the party
Page 40 of 52
DacU 1647623
Bk~ 2301 Pg~ 405
delayed, in performirlg 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 bv 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
Doell 1647623
Bkll 2301 PglI 406
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 20.1Q Subseauent 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 Pumose. 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 Ae:reements/Remedies. To the extent that any
purchase and sale or Related Agreement relating to the Demised Premises incorporates,
relates to andlor is contingent upon the execution of andlor 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
Doell 1547523
Skll 2301 PgII 407
Section 20.2'1 'Exceutions 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 contem plated, 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 Draftil1ll: of Lease and anv Related A2:reement. 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 lR..ase 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 CoODerate. 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
Doc:.. 1647623
Bk" 2301 Pg" 408
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written.
-"';",;':".:',::.
LESSOR:
MONROE COUNTY BOARD OF
. )i'!UNTY COI:N~
4~t ~-
, Mayor Mario DiGennaro A PR 1 8 2007
MONROE COUNTY ATTORNEY
fPPROV~ TO F~RM:,
~ . LJA ~ ~-~J!J'-1J
. -' SUSAN M, GR LEY V'
ASSISTANT COUNTY ATTORNEY
Date /..f-/r'J. t")'7
ATTEST: DANNY L. KOLHAGE, CLERK
By: G.-~,~
"., \, D puty Clerk
'.l~~:,:~~" <~_.:
LESSEE:
ISLANDER VILLAGE, LLC
Witnesses: As to Lessee
)~0~
Printed Name )j.,J'l {!Aj.M
.~.
Pri~ted N'ame tJ Y1 t fbl l\L1Lt 11 0 "2-
Page 44 of 52
EXHIBIT "A"
Doell 1641623
Bkll 2301 Pgll 409
LEGAL DESCRIPTION
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 I, Page 55, of the Public Records of
Monroe County, Florida, and adjacent submerged lands, said parcel being more particularly
described by metes and boWlds as follows:
Commencing at the W'!y 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, said point also being the NW'ly comer of
LINCOLN GARDENS NO.2 SUBDIVISION, as recorded in Plat Book 5, at Page 90, of the
Public Records of Monroe County, Florida; thence continue West and along the S1y Right-of-
Way Line of the said Fifth Avenue for a distance of 691.45 feet; thence run South for a distance
of79.47 feet; thence run S 3 degrees 00' 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 43 degrees 00';
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 degrees 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 of 95 degrees 00'; thence run SE1y
and NE'ly along the arc of said curve for a distance of 152.54 feet to the end of said curve; thence
run N 45 degrees 00' 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 degrees 49' 24"; thence run NE'ly
along the arc of said curve for a distance of 17.95 feet; thence run East for a distance of 37.33
feet; thence run S 74 degrees 58' 15" E for a distance of 72.32 feet to a point that is on the W'ly
boundary line of the said LINCOLN GARDENS NO.2 SUBDIVISION; thence run North and
along the W'ly boundary line of the said LINCOLN GARDENS NO.2 SUBDIVISION 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.
Page 45 of 52
Doell 1647623
Bkll 2301 Pgll 410
EXHIBIT "B"
DEPICTION OF PROJECT LAYOUT
I
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Page 46 of 52
Docll 11547623
Bk~ 2301 Pg~ 411
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 confinn 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 ofthis Agreement shall not constitute an exercise by Lessee of its option with
respect to any Extended Tenn.
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
Print Name:
>-
w..
Z:o '
gjl5
E~
1-(1)
Z<C
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Ow
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Ul 0 ~.
oa: >I~i!
a;:a. . CJ)cn
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F
By:
Deputy Clerk
Mayor Mario DiGennaro
Witnesses: As to Lessee
LESSEE:
ISLANDER VILLAGE, LLC.
Print Name/Title:
Print Name:
Page 47 of 52
Doell 1647623
Bkll 2301 PglI 412
EXHIBIT "D"
Term Portion Due Date ~ T arm Portion Due Date &nl
l€ase Year 1 Aug 1 2GDG $10.00 Lease Year 51 Aug 1 2D:.6 $10.0D
Lease Year 2 Aug 1 2007 $10.00 Lease Vear 5? Aug 1 2057 $10.00
Lease Year 3 Aug 1 2008 $10.00 Lease Vear 53 Aug 1 2058 $10.00
Lease Ye;:lf 4 Aug 12009 $10.00 Lease Year 54 Aug 1 2059 $10.00
Lease Year 5 Aug 12010 $10.00 lease Year 55 Aug 1 2050 $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 Ve<!f 57 Aug 1 2062 $10,00
tease Year B Aug 1 2013 ~1O.00 Lease Year 58 Aug 1 2063 $10.00
lease Vear 9 Aug 1 2014 $10.00 Lease Year 59 Aug 1 2064 $10.00
lease Year 10 Aug 12015 lIl0.00 Lease Year 60 Aug 1 2065 $10.00
lease Year 11 Aug 1 2016 $10.00 lease Year 6' Aug 1 2066 $10.01]
Lease Vear 12 Aug 1 2017 $10.00 lease Year 62 Aug 1 2067 $10.00
lease Year 13 Aug 12018 $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 '(ear 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 Yesr 67 Aug 1 2072 $10.00
Lease Year 18 Aug 1 2023 $10.00 Leasa Year 68 Aug 12073 $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 $1000
lease Year 21 Aug 1 2026 11000 Lease Year 71 Aug 1 2076 $10,00
lease Year 22 Aug 12027 $10.00 lease Y!!lsr 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 110.00 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 28 Au!;! 1 2031 $10.00 Lease Year 76 Aug 1 2081 $10.00
lease Year 27 Aug 12032 $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 AUg12034 $10.00 lease Year 19 I\ug 12084 $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 110.00 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 12041 $10.00 Lease Year B6 Aug 1 2091 $10,00
Lease Year 37 Aug 1 2042 $10.00 Lease Year 87 Aug 12092 $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 69 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 Vear 91 Aug 1 2096 $1000
Lease Year 42 Aug 1 2047 $10.00 lease Year 92 Aug 1 2097 $10,00
lease Year 43 Aug 12048 $10.00 Lease Year 93 Aug 1 209a $10.00
lease Year 44 Aug 1 2049 $10.0U Lease Year 94 AUQ 1 2099 $10,00
Page 48 of 52
Lease Yeal 45 Aug 1 2050 $10.00
Lease Year 46 Aug 1 2051 $10.00
Lease Year 47 Aug 1 2052 $10.00
Lease Year 48 Aug 12053 $10.00
Lease Year 49 Aug 1 2054 $10,00
Lease Year 50 Aug 12055 $10,00
Doell 1647623
Bkll 2301 PglI 413
Lease Year 95 Aug 1 2100 $10.00
lease Year 96 Aug 1 2101 $10.00
Lea~e Year 97 Aug 1 2102 $10.00
Lease Year 98 Aug 12103 $10.00
Lease Year 99 Aug 1 2104 $10.00
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Doe" 1647623
Bk~ 2301 Pg~ 414
EXHIBIT "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 At10rdable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my, future similarly situated persons
and Monroe County's benefits.
. That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore I will be subleasing a parcel ofland.
. That my legal counsel, , has explained to me the
terms and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction.
. That I understand the terms ofthe Lease and how the terms and conditions set
forth therein will affect my rights as an owner ofthe 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
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Doell 1647623
Bkll 2301 PglI 415
affordable'housing as set forth in the Leasc.
. That I have reviewed the tenns 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 havc not dealt with any broker other than
in connection with the consummation ofthe
~_.__._._-_.-
purchase ofthe AtTordable Housing Unit.
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This modification or
additional condition
shall:
.-X NOT APPLY
APPLY
to this Lease.
0..",,,, 1647623
Bka 2301 Pga 416
Ii:XHIBIT "F"
Modified or Additional Conditions
Section 12.02 Initial Sale/Lease of Unit Bv DevelonerlInitial Lessee
[ADDITIONAL PROVISIONl Initial Lessee acknowledges that there shall be
reserved hy 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 anthori7.ed, 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
suhject 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.
I'IONROE coUNTY
OFFICIAL RECORDS
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