1st Amendment 04/15/2009
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
May 4, 2009
TO:
Suzanne A. Hutton
County Attorney
A TTN:
Kathy M Peters
Executive Assistant
Pamela G. Hancor:Jl;c.
FROM:
At the April 15, 2009, Board of County Commissioner's meeting, the Board granted
approval and authorized of Amendment No.1 to Ground Lease between Monroe County and
Overseas Redevelopment Company, LLC for an affordable housing project at Flagler Village.
Enclosed is an original to the above-mentioned for your handling. Should you have any
questions please feel free to contact our office.
cc:
FinaJe
File
AMENDMENT NO.1 TO GROUND LEASE
OVERSEAS REDEVELOPMENT COMPANY, LLC
THIS AMENDMENT NO.1 TO GROUND LEASE is entered this 15th day of April, 2009,
by and between MONROE COUNTY ("Lessor") and OVERSEAS REDEVELOPMENT
COMPANY, LLC ("Lessee").
WHEREAS, on September 20, 2006, the parties entered into a ground lease for real property
located on Stock Island, Monroe County, Florida, at Block 38, George L. McDonald's Plat, as
recorded in Plat Book 1, Page 55, and a portion of the adjacent First Avenue as previously
abandoned, as recorded in the Official Records of Monroe County, Florida, at Book 537, page
937; and
WHEREAS, the ground lease provided for the Lessee to construct 49 Affordable Housing
Units; and
WHEREAS, the parties have determined that it is in the best interests of both to clarify certain
terms and modify other terms of said agreement; now therefore,
IN CONSIDERATION OF THE COVENANTS AND PROMISES contained herein, the parties
agree as follows:
1. The Ground Lease entered between the parties on September 20, 2006, shall be amended as
follows;
A. The definition of "Affordable Restrictions" in Article I shall be amended to read:
"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 materially and
adversely alter the obligations or rights of Lessee under this Lease or decrease
the lawfully permissible sales price or rental rate for an Affordable Housing
Unit to less than the specified sales price or rental rates 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 upon an owner/Sublessee/mortgagee
would be to divest such person or entity of value upon which such person
reasonably and fairly relied to their detriment. The substance of the Affordable
Restrictions may be freely amended in the Lessor's legislative discretion,
particularly with respect to administrative, monitoring and enforcement
mechanisms, but any such amendment shall not materially diminish the
lawfully established and equitably vested resale value or the reasonable
alienability of "home-ownership" Affordable Housing Units, or in the case of
rental-only units or projects, shall not materially and adversely diminish or
interfere with the Lessee's substantive benefits conferred under this Lease or
any of its non-administrative terms. However, Lessor may restrict Affordable
Housing Unit resales and rentals to use as "Employee Housing" as defined in
ORC, LLC Amend. 1
the Affordable Restrictions, as amended from time to time (though not in
conflict with LIHTC requirements). 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 ensuring that long term affordability
benefits for the respective housing resources inure to the benefit of Monroe
County, its economy and its community character. In all cases of conflict
between local and federal LIHTC rental, tenant eligibility and other guidelines,
Lessee shall be entitled to adhere to governing federal (LIHTC) requirements
without being deemed in breach of this Lease or the Affordable Restrictions.
B. The definition of ''''Project'' in Article I shall be amended to read:
"Project" shall mean the required development of the Demised
Premises, primarily the required construction of 49 Affordable Housing Units
for sale or rent at affordable rates, but also including related infrastructure,
securing of required development approvals and permits, financing for the
construction of the Affordable Housing Units, marketing/renting of the
Affordable Housing Units and creation of any required governing Association.
C. Section 6.01 shall be amended to read:
Section 6.01 Lessee's Obligations. As additional Rent, and from the
effective date to the commencement date, 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 or rental 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
ORC, LLC Amend. 1 2
shall be binding on Lessor.
D. The first paragraph of Section 9.01 shall be amended to read:
Section 9.01 Indemnification bv Lessee. During the Term of the
Lease and during the period from the Effective Date to the Commencement
Date, during which Lessee shall be entitled and obligated to maintain site
control of and insurance for the Demised Premises for construction of the
Affordable Housing Units, Lessee will indemnify, defend and save harmless the
Lessor against any and all claims, debts, demands or obligations which may be
made against the Lessor or against the Lessor's title in the Demised Premises,
arising out of, or in connection with, or in any way related to the Demised
Premises, except to the extent such claims may be caused by the gross
negligence or intentional misconduct of the Lessor (or its agents or employees
in the conduct of work for or at the direction of the Lessor) with respect only to
any duty or obligation Lessor expressly assumes with respect to any portion of
the Demised Premises, none of which duties and obligations are so assumed
herein. If it becomes necessary for the Lessor to respond to any claim, demand
or unanticipated matter or to defend any action seeking to impose any such
liability, the Lessee will pay the Lessor all costs of court and reasonable
attorneys' fees incurred by the Lessor in effecting and preparing for such
response or defense in addition to any other reasonable sums which the Lessor
may be called upon to pay by reason of the entry of a judgment against the
Lessor in any proceeding in which such claim is asserted.
E. Section 14.01(a) shall be amended to read, effective as of the date of this
Amendment No.1:
(a) Initial Lessee shall renew the building permits for the 49 Affordable
Housing Units no later than November 30, 2009. For any reason of
omission by Lessee which results in the building permits not being
issued by November 30, 2009, a notice of default shall be issued by
Lessor to the Lessee and the Mortgagee, after which notice the
Lessee and Mortgagee, individually or jointly, have sixty (60) days
within which to cure the default. If the building permits have not
been issued by November 30, 2009, due to omission of Lessor, this
Lease shall be amended a time commensurate with said omission.
The Projects shall be substantially completed no later than
November 30, 2010, unless there occurs a default which is cured or
an extension is granted, in either case the November 30, 2010 date
for substantial completion shall be extended by the amount of time
of the cure or extension in the issuance of the building permits.
Substantial completion shall mean either that (i) certificates of
occupancy have been issued for at least 37 of the Affordable
Housing Units or that the Lessee, at Lessee's expense, produces a
certificate of 75% completion of the Project, which certification
shall be executed by a certified professional appraiser. If the
Project is not at least 75% complete at the required substantial
completion date, a notice of default shall be issued by Lessor to the
ORC, LLC Amend. 1 3
Lessee and the Mortgagee, after which notice the Lessee and
Mortgagee, individually or jointly, have sixty (60) days within
which to cure the default. In the event the Project is more than 75%
complete but less than 100% completed by November 30, 2010, the
Lessee shall have an additional two months, until January 31, 2011,
to complete the construction of the project. Failure to have
certificates of occupancy for all 49 units by January 31, 2011,
unless the date is adjusted pursuant to provisions of this section,
shall constitute a default, which shall require notice to the Lessee
and Mortgagee with 60 days to cure the default, jointly or
individually. The foregoing limitations of time for Project
progression may be extended by written agreement of the Parties.
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Section 14.03 shall be amended by adding the following sentence:
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Economic conditions, or the state of the local, state or national
economy do not constitute forced delay which requires extension for
performance of any provisions of this agreement. Lessee
acknowledges that in the event that tax credit financing is not
obtained, other financing of the Proj ect shall be required in order to
timely complete the Proj ect.
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~ti<ti 20.14 shall be amended by adding the following sentence:
Economic conditions or the inability to obtain financing do not
constitute a force majeure for which an extension is required under
this paragraph.
2. All other provisions of the ground lease agreement entered the 20th day of
September, 2006, not inconsistent herewith, shall remain in full force and effect.
IN WITNESS WHEREOF, the Lessor and Lessee have hereunto set their hands and seal,
the 15th day of April, 2009.
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(SEAle) .
DANNY L.KOLHAGE
CL~.~
~y;............~
.; ...... .. eputy Clerk
~~~FnVELOPMENT COMPANY, LLC
By: lV~
, Manager
ORC, LLC Amend. 1
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