08/19/2009 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
September 2, 2009
TO:
Suzanne A. Hutton
County Attorney
FROM:
Kathy M. Peters
Executive Assistant
. ~
Isabel D. DeSantis, D. C. ).,~(J1J,
ATTN:
At the August 19, 2009 Board of County Commissioner's meeting, the Board~ranted
approval and authorized execution of a Sub- Lease Agreement between the Overseas
Redevelopment Company, LLC & Flagler Village Limited Partnership, L TD for that portion of
the lease that is post-development. The Lessee Overseas Redevelopment Company, LLC is
applying for Low Income Housing Tax Credit Financing.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you
have any questions please feel free to contact our office.
cc: Finance
File t/
SUB-LEASE AGREEMENT BETWEEN
OVERSEAS REDEVELOPMENT COMPANY, LLC
& FLAGLER VILLAGE LIMITED PARTNERSHIP, LTD.
THIS SUB-LEASE AGREEMENT is entered into this I..l);day of August, 2009 by and
between Overseas Redevelopment Company, LLC, a Flo~Limited Liability Company
(hereinafter "Sub-Lessor") and Flagler Village Limited Partnership, Ltd., a Florida Limited
Partnership (hereinafter "Sub-Lessee").
WHEREAS, Sub-Lessor is the lessee under that certain ground lease dated July 19, 2006
between Sub-Lessor and Monroe County, a Political Subdivision of the State of Florida, as
Lessor, for the real property located in Monroe County, Florida described on Exhibit "A"
attached hereto (hereinafter referred to as the "Ground Lease," a true copy of which is attached
hereto as Exhibit "B"); and
WHEREAS, Section 12.01 of Article XII of the Ground Lease prohibits the assignment
or sub-letting of the Demised Premises without the written consent of Monroe County; and
WHEREAS, Sub-Lessor desires to sublease the Demised Premises to Sub-Lessee and
Sub-Lessee desires to sublease the Demised Premises from Sub-Lessor on the terms and
conditions contained herein; and
WHEREAS, Monroe County, having reviewed the proposed sublease, desires to consent
to the sublease.
NOW THEREFORE, the parties do hereby say and agree as follows:
1. All of the above recitals are hereby incorporated into this Sub-Lease Agreement.
2. Sub-Lessor hereby sub-leases to Sub-Lessee, and Sub-Lessee hereby sub-leases from
Sub-Lessor, the Demised Premises under the Ground Lease. This Sub-Lease is contingent on
Sub-Lessee obtaining an award and receiving funding for HC tax credits from the Florida
Housing Finance Corporation.
3. Sub-Lessee hereby agrees to be bound by all of the terms of the Ground Lease, and
hereby agrees to assume and perform all of the obligations of the Sub-Lessor under the Ground
Lease. This Sub-Lease is intended to transfer site control to Sub-Lessee.
4. The term of this Sub-Lease Agreement shall be concurrent with the remaining term
under the Ground Lease.
5. The rent for th~"s~7a.~$e:$lil(lk.'RJMl initial lease payment of $1,000,000.00, then, as
available from cash f1ow,~~h~at J,~~t of not less than $1.00 per year and not to exceed
$50,000.00 per year. jjVTflu).j, ANN tla
91 :Z'Wd Z-d3S68OZ
O~003~ ~Oj 0311.:1
6. The Sub-Lessee shall be permitted to encumber the leasehold with a leasehold
mortgage in order to complete the improvements to the land. The Lessor hereby consents to a
leasehold mortgage for said purpose.
7. The Sub-Lessor (Overseas Redevelopment Company, LLC) is not released from its
obligations under the Ground Lease.
8. This Sub-Lease Agreement shall be governed by the Laws of the State of Florida.
IN WITNESS WHEREOF, the parties have set their hand and seal the day and year
written above.
CONSENT TO SUB-LEASE ,
1{~':~~-"':;:'<:""
The undersigned hereby consents to this sub-lease. 4~~i}~-;d 'r~"'"",, "
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Date:~9". ~:;ni~h;e~~.
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SUB-LESSOR:
Overseas Redevelopment Company, LLC
By:
George Nugent
SUB-LESSEE:
Flagler Village Limited Partnership, Ltd.
By: Overseas G.P., LLC, its general partner
"~l\~E A. ON
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EXHIBIT "A"
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LEGAL DESCRIPTION
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EXHIBIT "B"
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C:\Documents and Settings\lorianne\Local Settings\Temporary
Internet Files\OLK19\Overseas - AFFORDABLE 99 YEAR LEASE
vl.doc7/6/2006 12:47 PM
LEASE
BE1WEEN
MONROE COUNTY
"LESSOR"
AND
OVERSEAS REDEVELOPMENT COMPANY, ILC
"LESSEE"
DATED )tt ,'I ,2006
Table of Contents
Article Title Page No.
I Definitions 3
II Demised Premises 6
III Term 7
IV Rent 7
V Non-Subordination 8
VI Payment of Taxes 9
VII Mechanics' Liens 11
VIII Governing Law, Cumulative Remedies 12
IX Indemnification of Lessor 13
X Insurance 14
XI Insurance Premiums 18
XII Assignment 18
XIII Condemnation 25
XIV Construction 26
XV Mortgage Financing 28
XVI Default 33
XVII Repair Obligations 35
XVIII Additional Covenants of Lessee, Lessor 36
XIX Representations, Warranties of Title and Quiet 38
Enjoyment
XX Miscellaneous 38
Page 2 of 52
GROUND LEASE AGREEMENT
:4- L. THIS LEASE made and entered into in Key West, Monroe County, Florida, on this
lJfL::. day of ~-\-. Y'f'.ba... ('" .2006, by and between MONROE COUN'lY (referred to as
the "Lessor") an OVERSEAS REDEVELOPMENT COMPANY, LLC (referred to as
the "Lessee").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at
· Monroe County, Florida, and more particularly described on the
attached Exhibit "A" (hereinafter "Property"); and,
WHEREAS, it is Lessor's intent that the Property be developed to provide affordable
housing for Monroe County; and,
WHEREAS, Lessee desires to develop the Property and build and sell at least forty-
nine (49) affordable housing units (provided allowed by County regulations and hereinafter
the "Affordable Housing Units"), and Initial Lessee may rent/lease any Units not sold to
qualified owner-occupants; and,
WHEREAS, in order to preserve the affordability of the Units to be developed on the
Property, Lessor desires to lease the Property to Lessee for ninety-nine (99) years, subject to
the Affordable Restrictions as set forth and further defined herein; and,
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and in any contemporaneous Related .Agreements between the parties,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
"Affordable Housing Unit" shall mean a residential housing unit that meets the
moderate or lesser income requirements set forth in Chapter 9.5 and any other applicable
sections of the Monroe County Land Development Regulations, as may be amended from
time to time without limitation of Lessor's complete legislative prerogatives, said
restrictions to encumber the Property for a term of ninety-nine (99) years.
"Affordable Restrictions" shall mean the affordable or employee housing regulations
as set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land
Development Regulations or County Code, as hereinafter amended, except that in no event
shall the Lessor decrease the lawfully pennissible sales price for an Affordable Housing Unit
to less than the specified sales price for moderate income housing as set forth in the Land
Page 3 of 52
Development Regulations in effect at the time of execution of this Lease where the effect
upon an owner/Sublessee/mortgagee would be to divest such person or entity of value upon
which such person reasonably and fairly relied to their detriment. The substance of the
Affordable Restrictions may be freely amended in the Lessor's legislative discretion,
particularly with respect to administrative, monitoring and enforcement mechanisms, but
any such amendment shall not materially diminish the lawfully established and equitably
vested resale value or the reasonable alienability of an Affordable Housing Unit. However,
Lessor may restrict Affordable Housing Unit resales and rentals to use as "Employee
Housing" as defined in the Affordable Restrictions, as amended from time to time.
Moreover, Lessor may establish in its Affordable Restrictions "means" or "assets" criteria
that limit potential buyer or rental pools. Any such amendment shall not increase Initial
Lessee's responsibilities as set forth herein. It is the intent and purpose and shall be the
effect of this Lease and any Affordable Restrictions to ensure that the affordability of
Affordable Housing Units and dedicated real property upon which they are located is
maintained and enforced such that any administrative rule, policy or interpretation thereof,
made by Lessor or its designees relating to the maximum total amount of consideration and
cost permittedto 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 cu~omarilyused 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).
"Gommencement Date" shall mean the date when IniQ.al 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 OVERSEAS REDEVELOPMENT COMPANY, LLC, developer
of the Affordable Housing Units.
Page 4 of 52
"Lease" shall mean this lease for the creation of the Affordable Housing Units on the
Demised Premises, as may be amended from time to time by the parties. It is expressly
contemplated and intended by Lessor, as fee title holder to the Demised Premises, that any
limitations, restrictions and/or other covenants of any nature, whether established
pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of
enforceable covenants running with the land, equitable servitudes and all other cognizable
legal and equitable real property conventions so as to ensure the overall public affordable
housing purposes intended to be served, including appropriate application of cumulative
enforcement theories.
"Lease Year" shall mean the twelve (12) month period beginning on the
Commencement Date and each twelve (12) month period thereafter throughout the Term of
this Lease.
"Lessor" means MONROE COUNlY, 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 wri~en notice to all parties, to administer or enforce some or any portion of the
provisions of this Lease or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns, including the
Association created by Initial Lessee for the Unit owners/tenants, as well as the individual
Unit owners/tenants.
"Project" shall mean the required development of the Demised Premises, primarily
the required construction of Affordable Housing Units as set forth in Article XIV, but also
including related infrastructure, securing of required development approvals and pennits,
financing for the construction of the Affordable Housing Units, marketing of the Affordable
Housing Units and creation of any required governing Association.
"Related Agreements" shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease and which
is rec~rded. 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, convey or
otherwise transfer a possessory use and/or title interest to any portion of the Demised
Page 5 of 52
Premises, but excluding rental of an Affordable Housing Unit (which may be more
particularly discussed herein or in the Affordable Restrictions) and any security, mortgage,
note or other interest of a form and type customarily used with purchase money or home
equity loans. The title or exact nomenclature used to describe such instruments may vary to
suit particular circumstances and shall lie within Initial Lessee's reasonable discretion and
still remain within the meaning herein intended (e.g., a "deed of improvements" may in a
given context be construed as an effective sublease for purposes herein). It is intended that
the term Sublease encompasses such instruments that effectuate qualified end-user, title,
possession and/or use of Affordable Housing Units developed on the Demised Premises. A
Sublease, as used herein, regardless of final form and substance, must be approved by the
Lessor, which approval shall not be unreasonably withheld.
"Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an
individual Mfordable Housing Unit owner or tenant who, as of the EffectiVe Date, would
qualify for "Employee Housing" as defined under Chapter 9.5 of the Monroe County Code
and who is gainfully employed in, and derives at least seventy percent (7096) of their income
from, Monroe County from the time of their purchase (or rental as may be provided for or
allowed by this Lease) of an Affordable Housing Unit. Additionally, except as may be
otherwise permitted by this Lease, in order to remain eligible to retain ownership of and to
reside in their Affordable Housing Unit into retirement, in addition to complying with any
otherwise applicable provisions in the Affordable Restrictions, purchasers of all Affordable
Housing Units must for the five (5) years immediately following their purchase continue to
earn at least seventy percent (70%) of their family income from gainful employment within
the County.
"Term" shall mean the Commencement Date, and continuing for ninety-nine (99)
years thereafter, plus any agreed upon extension of this Lease, and unless otherwise
permitted by Lessor, all Subleases and rights or interests granted thereunder shall
terminate at the end of the Term.
ARTICLE II
Demised Premises
Section 2.01 Lessor's Demise. Upon the tenns 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:
Page 6 of 52
record;
(a) Conditions, restrictions and limitations, if any, now appearing of
(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) year~ 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 wel1 as other activities
related to the development and construction of the Project. As herein set forth, the Term
will not commence until the first Affordable Housing Unit is completed and a certificate of
occupancy has been issued for said first Affordable Housing Unit, said date to be evidenced
by the Commencement Date Agreement that the parties wil1 execute in substantially the
same form as that set forth in Exhibit C hereto, upon completion of construction.
ARTICLE IV
Rent
Section .t.Ol Annual Base Rent. Lessee covenants and agrees to pay to Lessor
promptly when due, without notice or demand, and without deduction or offset, Annual
Base Rent throughout the Term of this Lease beginning on the Commencement Date, in the
amount ofTen Dollars ($10.00) per Lease Year or partial Lease Year. Lessee shall pay to
Landlord said Annual Base Rent on the first day of the second month of each Lease Year
throughout the term of this Lease, provided that upon transfer of control of the Association
by Initial Lessee, Lessor agrees to provide wri~en 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.
Page 7 of 52
Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other
amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in
lawful money of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, each payment to be paid to Lessor at the
address set forth herein or at such other place within the continental limits of the United
States as Lessor shall from time to time designate by notice to Lessee. Except for any
income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local
surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums
otherwise set forth herein.
Section 4.0~. It is intended that the Rent shall be absolutely net to Lessor
throughout the Term, free of any taxes, costs, utilities, insurance expenses, liabilities,
charges or other deductions whatsoever, with respect to the Demised Premises and/or the
ownership, l~ing, operation, maintenance, repair, rebuilding, use or occupation thereof.
Section 4.04. All amounts payable by Lessee to Lessor under any of the provisions
of this Lease, if not paid when due as provided for in this Lease, shall bear interest at the
highest rate allowable under Florida law from the time they become due until paid in full by
Lessee. In addition, Lessee shall pay a late fee in the amount of ten (1096) percent of any
amount due from Lessee to Lessor which is not paid within ten (10) days of the payment
due date for any sums due for Rent and within thirty (30) days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge of Fifty Dollars ($50.00).
In addition, Lessor shall be reimbursed by ~see 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.
Page 8 of 52
ARTICLE VI
Payment of Taxes and Utilities
Section 6.01 Lessee's Obligations. As additional Rent, the Lessee shall pay and
discharge, as they become due, promptly and before delinquency, all taxes, assessments,
water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises,
levies, licenses and permit fees and other governmental charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever,
which at any time during the Term of this Lease may be assessed, levied, confirmed,
imposed upon, or grow or become due and payable out of or in respect of, or become a lien
on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee
from the sale of the Affordable Housing Units 'to Sublessees, or be associated with any
document (to which the Lessee is a party) creating or transferring an interest or estate in
the Demised Premises. With regard to special assessments, if the right is given to pay either
in one sum or in installments, Lessee may elect either mode of payment and Lessee's
election shall be binding on Lessor.
Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee shall pay
and discharge, as they become due, promptly and before delinquency, all taxes,
assessments, water and sewer rents, rates and charges, transit taxes, charges for public
utilities, excises, levies, licenses and permit fees and other governmental charges, general
and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature
whatsoever, which at any time during the term of this Lease may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect of, or
become a lien on, the Sublessee's interest in the Demised Premises, or otherwise arise out of
the revenue received by Sublessee from the sale of their Affordable Housing Unit, or be
associated with any document (to which the Sublessee is a party) creating or transferring an
interest or estate in the respective portion. of the Demised Premises.
Section 6.0~ Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or
Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner
of the fee of the Demised Premises; provided, however, that if at anytime 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,
Page 9 of 52
charges or assessments required to be paid shall belong to Lessee.
Section 6.04 Mode of Payment. The Lessee (and any Sublessee, 'as to their specific
interests in the Demised Premises) shall pay the taxes and other charges as enumerated in
this Article VI and shall deliver official receipts evidencing such payment to the Lessor
(Sublessees shall only deliver receipts as may be required by the Affordable Restrictions),
which payment of taxes shall be made and the receipts delivered, at least thirty (30) days
before the tax, itself, would become delinquent in accordance with the law then in force
governing the payment of such tax or taxes. If, however, the Lessee desires to contest the
validity of any tax or tax claim, the Lessee may do so without being in default hereunder,
provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County, one and one half (11/2) 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 detennined, 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. If the Lessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,
pay the same and the amount or amounts of money so paid, including reasonable attorneys'
fees and expenses which might be reasonably incurred because of or in connection with
such payments, together with interest on all such amounts, at the highest rate allowed by
law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the
payment thereof may be collected or enforced by the Lessor in the same manner as though
such amount were an installment of Rent specifically required by the terms of this Lease to
be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment
thereof or reimbursement therefor of and from the Lessee; but the election of the Lessorto
pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding
the foregoing, Lessee shall have the right to contest any taxes and assessments levied
against Lessee; and provided Lessee files the appropriate documentation to contest said tax
or assessment, Lessee shall not be in default of this Lease or obligated to pay any interest or
other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the
assessment measures and collection remedies lawfully available to any taxing authority.
Section 6.06 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make
any of the payments required in this Article, then the Lessor may, but shall not be required
to, pay the same, and the amount or amounts of money so paid, including reasonable
attorneys' fees and expenses which might be reasonably incurred because of or in
connection with such payments, together with interest on all such amounts, at the highest
rate allowed by law shall be repaid by the Sublessee to the Lessor, upon the demand of the
Lessor, and the payment thereof may be collected or enforced by the Lessor in the same
manner as though such amount were an installment of Rent specifically required by the
terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor
demands repayment thereof or reimbursement therefor of and from the Sublessee; but the
Page 10 of 52
election of the Lessor to pay such taxes shall not waive the default thus committed by the
Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any
taxes and assessments levied against Sublessee; and provided Sublessee files the
appropriate documentation to contest said tax or assessment, Sublessee shall not be in
default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing
herein shall be construed to prevent or inhibit the assessment measures and collection
remedies lawfully available to any taxing authority.
Section 6.07 Proration. The foregoing notwithstanding, the parties hereto
understand and agree that the taxes for the first year (beginning on the Effective Date) and
the last year of the Term shall be prorated proportionately between the Lessor and the
Lessee.
Section 6.08 Appraiser to Respect Effect of Affordable Restrictions. It is the intent
of the parties that any appraisal of any portion of the Demised Premises for taxation, public
assessment or utility service purposes fully reflect the effect of this Lease and the Affordable
Restrictions on the lawfully realizable value of relevant portiones) appraised.
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 (go) days after the Lessee or Sublessee shall have been
given written notice of such a claim having been filed, or within thirty (go) 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 (go) day period expires earlier) to cause the respective portion of the
Demised Premises to be released from such claim, either by payment or by the posting of
bond or by the payment to a court of competent jurisdiction of the amount necessary to
relieve and release the relevant portion of the Demised Premises from such claim, or in any
other manner which, as a matter of law, will result, within such period of thirty (go) 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
(go) days, so as to cause the affected portion of the Demised Premises and the Lessor's
interest therein to be released from the legal effect of such claim.
Page 11 of 52
Section 7.0~ Lessee's Default. If the Lessee shall fail, refuse, or neglect to perlorm
its obligations as required in this Article, then the Lessor may, but shall not be required to,
pay any sums required to cause the Demised Premises and the Lessor's interest therein to
be released from the legal effect of such claim and the amount or amounts of money so paid,
including reasonable attorneys' fees and expenses which might be reasonably incurred
because of or in connection with such payments, together with interest on all such amounts
at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor, upon the
demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor
in the same manner as though such amount were an installment of Rent specifically
required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day
when the Lessor demands repayment thereof or reimbursement therefor of and from the
Lessee; but the election of the Lessor to pay such amount shall not waive the default thus
committed by the Lessee.
Section 7.04 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
required to, pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so p~id, including reasonable attorneys' fees and expenses which might be
reasonably incurred because of or in connection with such payments, together with interest
on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to
the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or
enforced by the Lessor in the same manner as though such amount were an installment of
Rent specifically required by the terms of this Lease to be paid by the Sublessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement
therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall
not waive the default thus. committed by the Sublessee.
ARTICLE VIII
Governing Law. Cumulative Remedies
Section 8.01 Governing Law. All of the rights and remedies of the respective parties
relating to or arising under this instrument and any related documents shall be governed by
and construed under the laws of the State of Florida.
Section 8.02 Cumulative Remedies. All rights and remedies accruing to the Lessor
shall be assignable in whole or in part and be cumulative; that is, the Lessor may pursue
such rights as the law and this Lease afford to it in whatever order the Lessor desires and
the law permits. Lessor's resort to anyone remedy in advance of any other shall not result
in waiver or compromise of any other remedy.
Page 12 of 52
ARTICLE IX
Indemnification of Lessor
Section Q.01 Indemnification by Lessee. During the Term of the Lease, Lessee will
indemnify, defend and save harmless the Lessor against any and all claims, debts, demands
or obligations which may.be made against the Lessor or against the Lessor's title in the
Demised Premises, arising out of, or in connection with, or in any way related to the
Demised Premises, except to the extent such claims may be caused by the gross negligence
or intentional misconduct of the Lessor (or its agents or employees in the conduct of work
for or at the direction of the Lessor) and only with respect to any duty or obligation Lessor
expressly assumes with respect to any portion of the Demised Premises, none of which
duties and obligations are so assumed herein. If it becomes necessary for the Lessor to
respond to any claim, demand or unanticipated matter or to defend any action seeking.to
impose any such liability, the Lessee will pay the Lessor all costs of court and reasonable
attorneys' fees incurred by the Lessor in effecting and preparing for such response or
defense in addition to any other reasonable sums which the Lessor may be called upon to
pay by reason of the entry of a judgment against the Lessor in any proceeding in which such
claim is asserted.
Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise
provided in Section 12.01, upon completion of the construction and sale or assignment of
any portions of the Project in accordance with this Lease, Initial Lessee shall be released
from any and all liability related to such transferred portions of the Demised Premises and
the subsequent use thereof by the Sublessees, their employees, agents, contractors, guests
or invitees, including without limitation any death, injury or damage to person or property
in or about the transferred portions of the Demised Premises, except as otherwise set forth
herein. However, this release shall not constitute a release or waiver of Lessor's rights, if
any, or possible entitlement to insurance coverages required by this Lease.
Lessor shall not be liable to Lessee, or to Lessee's assignees or Sublessees or their
employees, agents, contractors, guests or invitees for any death, Injury or damage to person
or property in, about or relating to the Demised Premises. Lessee, on its and its assignees'
and their successors in interests' behalves, including any future Sublessees, or grantees or
licensees of the Initial Lessee or the Association, or any guests, invitees or tenants of any of
the foregoing, hereby assumes and covenants for its own and their own acceptance of sole
responsibility and liability to all persons for death, injury or damage related to or arising
from the ownership, possession, occupancy and for use of any portion of the Demised
Premises, and also, for all such future occupants, owners, Lessees, Sublessees, tenants,
guests, invitees and licensees, waives and releases forever all claims, demands and causes of
action against Lessor and its officers, employees, agents, successors, assigns, contractors
and representatives for loss of life or injury to person or property, of whatever nature.
Section Q.02 Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X insuring
the Lessee against any and all claims and demands made by any person or persons
Page 13 of 52
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor (and any lender holding. a mortgage on the Demised Premises), as
their respective interests may appear, as the persons insured by such policies. Any loss
adjustment shall require the written consent of both the Lessor and Lessee.
Section Q.03 PolicY Limit Changes. The policy limits for the comprehensive liability
insurance may be reviewed by Lessor every five (5) years and adjusted upward, if, in the
reasonable discretion of Lessor such increase in coverage is prudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance
Section 10.01 Property Insurance. From and after the Effective Date, the Lessee
will keep insured any and all buildings and improvements upon the Demised Premises
against alllos~ .or damage by fire, flood and windstorm, together with "all risks" "extended
coverage, " which said insurance will be maintained in an amount sufficient to prevent any
party in interest from being or becoming a co-insurer on any part of the risk, which amount
shall not be less than the full Replacement Cost value of the relevant portions of the
Demised Premises, and all of such policies of insurance shall include the name of the Lessor
as an additional insured and shall fully protect both the Lessor and the Lessee as their
respective interests may appear. In the event of destruction of buildings or improvements
by fire, flood, windstorm or other casualty for which insurance shall be payable and as often
as such insurance money shall have been paid to the Lessor and the Lessee, said sums so
paid shall be deposited in ajoint account of the Lessor and the Lessee in a bank designated
by the Lessee and located in the County in which the Demised Premises is located, and shall
be made available to the Lessee for the construction or repair (including any modification to
the impro~ements sought by the Lessee and approved in writ~ng 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
accotiilt 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 reconstmction or repair and at a
reasonable cost therefor; provided, however, that the total amount of money necessary for
the reconstruction or repair of any building or buildings destroyed or damaged has been
provided by the Lessee for such purpose and its application for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as any portion of said Demised
Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the
Lessee shall, Within fifteen (15) months from the date of such damage or destruction,
rebuild and repair the same in such manner that the buildings or improvements so rebuilt
Page 14 of 52
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 of the Lessee, by act of God, strikes, lockouts, or other conditions (other than matters
of refinancing the property) beyond the Lessee's control. Notwithstanding the foregoing,
and only with respect to insurance proceeds, the provisions of any leasehold mortgage
substantially comporting with customary institutional lending industry standards and the
foregoing Lessor's interests shall control as to the use and disbursement of insurance funds
for reconstruction of the improvements in the event of any casualty or damage to such
improvements.
While the Project, or any replacement thereof, is in the course of construction, and
whenever appropriate while any alterations are in the course of being made, the aforesaid
fire and extended coverage insurance shall be carried by Lessee in builder's risk form
written on a completed value basis.
Notwithstanding anything to the contrary in the immediately preceding paragraph,
in case of destruction of all of the improvements on the Demised Premises from any cause
so as to make all Affordable Housing Units untenantable occurring during the last ten (10)
years of the Term of this Lease, Lessee, if not then in default under this Lease and if there is
no leasehold mortgage or other similar encumbrance on the Lessee's interest in the
Demised Premises, may elect to terminate this Lease by written notice to Lessor within
thirty (30) days after the occurrence of the destruction. In the event this Lease has been
assigned to the Association, the Association must obtain any necessary vote to terminate.
In the event of termination, there shall be no obligation on the part of Lessee to restore or
repair the improvements on the Demised Premises, nor any right of the Lessee to receive
any proceeds collected under any insurance policies covering the improvements. If Lessee
elects.not to terminate this Lease in the event of destructic?~ during the last ten (10) years of
this Lease, the proceeds of all insurance covering the improvements shall be made available
to Lessee for repairs, and Lessee shall be obligated to repair as set forth above.
. . Section 10.02 Commercial General Liability Insurance. The Initial Lessee and the
Association (upon assignment to the Association) shall maintain Commercial General
Liability Insurance beginning on the Effective Date and continuing during the entire Term
of this Lease. The Commercial General Liability Insurance shall cover those sources of
liability which would be covered by the latest edition of the standard Commercial General
Liability Coverage Form [ISO Form CG 00-01] as filed for use in Florida without the
attachment of restrictive endorsements other than the elimination of medical payments and
fire damage legal liability.
General Aggregate $1,000,000
Products/Completed Operations $1,000,000
[coverage for one (1) year after project completion]
Page 15 of 52
Each Occurrence
Contractual Liability
$1,000,000
$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~ Environmental Impairment Responsibility. The Lessee and/or its
contractors acknowledge that the performance of this Lease is, or may be, subject to
Federal, State and local laws and regulations enacted for the purpose of protecting,
preserving or restoring the environment. The Lessee shall, at the sole cost of the Lessee or
its contractors, be responsible for full compliance with any such laws or regulations.
Section 10.04 Other Insurance. Lessee shall maintain such other insurance andin
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 10.05 Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage
created pursuant to the provisions of Article XV elects, in accordance with the terms of such
mortgage, to require that the proceeds of any casualty insurance be held by and paid out by
th.e mortgagee, then such payment may be made, ..but in such event, it shall still be
obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the
manner set forth in this Article to assure complete payment for the work of reconstruction
and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are
properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by
Sublessee or Lessee.
Section 10.06 Damages: Insurance Proceeds: Joint Bank Account. Any excess of
money received from insurance remaining in the joint bank account after the reconstruction
or repair of such building or buildings, if the Lessee is not in default, shall be paid to the
Lessee. In the case of the Lessee not entering into the reconstruction or repair of the
building or buildings within a period of six (6) months from the date of payment of the loss,
after damage or destruction occasio~ed by fire, windstorm, flood or other cause, and
diligently prosecuting the same with such dispatch as may be necessary to complete the
same in as short a period of time as is reasonable under the circumstances after the
occurrence of such damage or destruction, then the amount so collected, or the balance
Page 16 of 52
thereof remaining in the joint account, as the case may be, shall be paid to the Lessor and it
will be at the Lessor's option to terminate the Lease, unless terminated by Lessee within the
last ten (10) years of the Lease as set forth above, and retain such amount as liquidated and
agreed upon damages resulting from the failure of the Lessee to promptly, within the time
specified, complete such work of reconstruction and repair.
Section 10.07 Direct Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and 00/100 Dollars
($100,000.00) or less, then such proceeds shall be paid directly to the Lessee without the
necessity of creating the joint bank account, and Lessee shall use such funds to make the
replacements or repairs. Lessee shall provide proof satisfactory to Lessor that repairs are
completed as required within fifteen (15) months from the date of such damage or
destruction, unless said period is enlarged by delays caused without fault or neglect on the
part of the Lessee.
Section 10.08 General Requirements. All insurance to be provided by Lessee under
this Lease shall be effected under valid and enforceable policies in such forms, issued by
insurers of recognized financial responsibility qualified to do business in Florida which have
been approved by Lessor, which approval shall not be unreasonably withheld. All policies of
insurance provided for in this Article shall, to the extent obtainable, contain clauses or
endorsements to the effect that (i) no act or negligence of Lessee or anyone acting for Lessee
or for any Sublessee or occupant of the Demised Premises which might otherwise result in a
forfeiture of such insurance or any part thereof shall in any way affect the validity or
enforceability of such insurance insofar as Lessor, and that (ii) such policy of insurance
shall not be changed or cancelled without at least thirty (30) days written notice to the
Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or subject to
any assessments thereunder.
Section. 10.00 Subsequent Lessees. Assignees.. Sublessees and Grantees.
Notwithstanding anything contained herein to the contrary, in the event the Association
.. chooses not to obtain insurance coverage to protect against loss or damage by fire, flood and
windstorm for the individual Affordable Housing Units and therefore does not charge the
Sublessees for said coverage as part of the Association fees to be paid by the individual Unit
Owners; then, in such event Sublessees shall secure the above-described insurance coverage
for their individual Affordable Housing Units. Therefore, Lessor shall be entitled to require
replacement cost and other customary and reasonable insurance coverage(s) at least but
only to the full replacement value of any Sublessees' and/or any governing Association's
insurable interest in the Demised Premises. Any parties who subsequently become holders
of any title or possessory interest to a portion of the Demised Premises, shall upon request
provide, in a fonn 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 proced-qres for the use and application of insurance proceeds
as set forth above may be required for subsequent interest holders and the same remedies
available to Lessor for Initial Lessee's failure to comply with such insurance requirements
shall be available to Lessor with respect to any future interest holders. Future interest
Page 17 of 52
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 C?f such insurance, in which case Lessee shall repay Lessor immediately upon
demand by Les~or as additional Rent. The Lessor shall have the same rights and remedi~
with respect to procurement of such insurance and/or payment of such insurance
premiums in the event a future subsequent partial interest holder (e.g., Sublessee,
Association) fails to obtain and pay for the necessary insurance.
ARTICLE XII
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee. Without the written consent of Lessor,
Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable
Housing Units are to be developed as units for sale or rent to moderate or lesser income
qualified third parties, as defined in the Affordable Restrictions. Therefore, the Affordable
Housing Units may be sold, rented and occupied without the Initial Lessee obtaining
consent from Lessor for such sale/subletting, provided that Initial Lessee shall follow the
guidelines set forth herein. In the event an Affordable Housing Unit is to be rented to a
qualified third party by Initial Lessee, said Unit shall only be rented at rates allowable under
the Affordable Restrictions for moderate or lesser income qualified third parties.
Additionally, in the event Initial Lessee retains ownership of Affordable Housing Units for
rental purposes, Initial Lessee shall have the right to assign its duties as property manager
for said Units to a third party without obtaining consent from Lessor.
Furthermore, Lessor hereby agrees that in the event Initial Lessee elects not to sell
all of the Affordable Housing Units to separate qualified individuals, then in such event,
Initial Lessee shall be authorized to sell the remaining unsold Units in bulk (no fewer than
three (3) Unit blocks, unless otherwise agreed by Lessor) at prices allowed under the
Affordable Restrictions to an entity or individual that may not qualify under the Affordable
Restrictions as of the date hereof. Said entity or individual shall have the same sale rights
as the Developer/Initial Lessee and same rights to rent its Units at affordable rates as set
forth herein; provided that Deyeloper /Initial Lessee obtains the prior written consent of the
Page 18 of 52
Lessor, said consent not to be unreasonably withheld. Developer/Initial Lessee shall notify
Lessor in writing of its intent to sell Units in bulk, specifying which Units it proposes to sell
in bulk, the proposed sale prices and identifying details about the proposed purchaser, and
Lessor shall have fifteen (15) business days from receipt of such notice to provide written
, consent or denial. In the event Lessor fails to respond within fifteen (15) business days of
receipt of Initial Lessee's notice, said failure to respond shall be deemed consent to sell the
Affordable Housing Units in bulk at prices allowed under the Affordable Restrictions to the
identified party. Additionally, Initial Lessee shall also have the right, with Lessor's consent
(which shall not be unreasonably withheld) to sell in bulk the Units that it elects initially to
retain as rentals (no fewer than three (3) Unit blocks, unless otherwise agreed by Lessor) at
prices allowed under the Affordable Restrictions to an entity or individual that does not
qualify for affordable housing pursuant to the foregoing notice procedures; provided that
said entity or individual retains ownership of the Units and rents them at affordable rates
and in compliance with the Affordable Restrictions. Initial Lessee shall provide Lessor with
written notice of its intent to sell the rental Units in bulk and Lessor shall have fifteen (15)
business days to respond as set forth above and any failure to respond shall be deemed
consent. It is also agreed that any subsequent bulk purchaser shall have the right to sell the
rental Units in bulk to another entity or individual provided said subsequent bulk purchaser
obtains the prior written consent of the Lessor as set forth above and said Units are sold at
prices allowed under the Affordable Restrictions.
Upon the transfer/sale of each Affordable Housing Unit to be sold by Initial Lessee,
or any successor Lessee hereunder, Lessor or its designee shall attorn to the rights of Initial
Lessee, or subsequent Lessee, as the case may be, with respect to each transferred/sold
Affordable Housing Unit. Any proceeds received by Initial Lessee from the sale of the
Affordable Housing Units shall remain the property of the Initial Lessee unless otherwise
provided herein. In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, Initial Lessee, or any successor Lessee, shall ensure the release of
any and all mortgage, mechanic's lien or other similar claims with respect to the relevant
portion of the Demised Premises other than new Sublessee purchase money mortgages and
the like, as such may be permitted by Articl~ xv. Upon transfer/sale of seventy-five percent
(7596) of the Affordable Housing Units to be sold by Initial Lessee as authorized by this
Lease, or as otherwise required or permitted by Florida law, Initial Lessee will be authorized
to assign its interest in this Lease for any portions of the Demised Premises not part of the
Affordable Housing Units (i.e., common area) to a homeowners', condominium or similar
Association to be created by the Initial Lessee. Any such Association and its related
declaration, articles of incorporation, bylaws and any other governing documents, as may
be amended, shall first be approved by Lessor or its designee for compliance with the goals,
purposes and intent of this Lease and the Affordable Restrictions, which approval shall not
be unreasonably withheld. Where such documents comply with the foregoing, Lessor shall
join in any community ownership governing documents as may be required by Initial
Lessee in order to conform its planned unit community governance to state law. No
governing document related to such Association shall materially alter or impair the terms
and conditions of this Lease or the applicability of the Affordable Restrictions. Monroe
County shall have fifteen (15) business days from receipt of said documents to review and
object to any contents thereof. In the 'event Monroe County fails to provide written notice
Page 19 of 52
of its consent or denial in regard to said documents, said failure shall be deemed acceptance
of the documents.
Upon the foregoing contemplated assignments by Initial Lessee, the Affordable
Housing Unit owners (as Sublessees) and the Association shall assume and thereby be
assigned Lessee responsibilities to Lessor for their respective portions of the Demised
Premises, releasing Initial Lessee from same for all such portions, except for design and
construction defect liability for which developers/builders are otherwise responsible under
Florida law. Sublessees, however, shall not be construed to have assumed or have assigned
to them by this provision any indemnification duty to Lessor relating to any portions of the
Demised Premises for which they hold no interest. Notwithstanding the foregoing, Initial
Lessee's right to find or identify a qualified purchaser, as set forth below, shall attorn to the
LessOr (unless assigned by Lessor as set forth below) and the Initial Lessee shall be released
from further duty or responsibility to the Lessor for the resale of the Affordable Housing
Units. It is hereby acknowledged that Lessor shall have the right to assign any of its duties
and rights related to the assignment of Subleases, i.e. finding a qualified purchaser for
resales, or renters in the case of rental units (unless the rental units are owned by Initial
Lessee and Initial Lessee chooses to manage the retained units, then in such event Initial
Lessee shall have the right to find qualified renters for said rental units where that right is
not in conflict with the Affordable Restrictions), to the Monroe County Housing Authority,
or to any other governmental entity or profit or non-profit organization designated and
approved by Lessor. In the event such duties or rights are assigned, reference to "Lessor" in
this Section 12.01 shall also refer to any assignee.
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee. Initial Lessee
shall be authorized to sell the Affordable Housing Units to individuals qualified to
own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record. Notwithstanding anything contained herein to the contrary, all
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's
requirements of moderate or lesser income affordable housing, adjusted for family size, and
any other applicable Affordable Restri~ions. Initial Lessee shall upon Lessor's request .
provide verification in a fonn and manner reasonably determined by Lessor that
purchasers/ sublessees/tenants for all Affordable Housing Units meet the requirements
herein. If Lessor is entitled to a reservation for initial purchase or assignment of the rights
to purchase all or a portion of the newly completed Affordable Housing Units, such right
and related procedures will be set forth in Exhibit F to this Lease.
Section 12.0~ Assignment/Transfer by Sublessees. At such time as any individual
Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable
Housing Units and interests, the Sublessee shall be required to follow the procedures set
forth herein and any procedure that may be set forth in the Affordable Restrictions, and any
conveyance, transfer or other disposition and the acceptance of such transfers shall be
automatically deemed an agreement to the conditions set forth herein.
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
Page 20 of 52
Premises, including but not limited to any recorded Association governing documents,
other than those mortgage interests provided for in Article XV, shall contain the following
required Notice of Restrictions in a conspicuous location on the upper one-half of the first
page of the relevant instrument effectuating the interest in bold capital typed letters greater
than or equal to 14 point font:
NOTICE OF RESTRlCDONS
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 ERECTED
THEREON WILL BE SUBJECfTO CERTAINRFSrRICITONS 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 :hook and page of the first recorded page of this Lease and, for recordable sale
or sublease instruments, the first recorded page of the Association governing documents
affecting the respective portion of the Demised Premises shall be set forth in the Notice of
Restrictions. Any instrument of conveyance, lease, assignment or other disposition made
without following the notice procedures set forth herein shall be void and confer no rights
upon any third person, though such instruments may in some cases be validated by fully
correcting them according to procedures established by Lessor, as determined in Lessor's
sole discretion, so as to ensure compliance with the public affordability purposes furthered
by this Lease and the Affordable Restrictions.
Section 12.0~ Follow-on Sales and Assignments of Ground Lease Requirements:
Right of First Refusal. Unless authorized by the Affordable Restrictions or unless otherwise
as set forth in subsection e., below, or in another provision herein, rentals of AffordaIJle
Housing Units are prohibited. In order for an owner or subsequent owner to sell their
Affordable Housing Unit and assign their Sublease they shall be required to comply with the
following:
a. Sublessee shall notify the Lessor or its designee in writing of their desire to
sell the Affordable Housing Unit and assign the sublease, said notice
hereinafter referred to as a "Transfer Notice." The Transfer Notice shall
include the proposed purchase price for the Affordable Housing Unit, and any
other compensation permitted the Seller relating to the proposed sale, which
shall be in accordance with the Affordable Restrictions. Undisclosed
compensation to a Seller or to any other party is prohibited and where it is
found to have existed with respect to any transaction, the amount thereof
shall be recoverable in law and equity from any party to or facilitating and
benefiting from such transaction with knowledge thereof.
Page 21 of 52
b. Lessor shall have thirty (30) days from the date of receipt of the written
Transfer Notice to exercise its option granted hereunder to purchase the
Affordable Housing Unit or to find or identify to the selling party in writing a
qualified purchaser who meets the income and other requirements for
purchasing the Affordable Housing Unit. Additionally:
1. The total sales price for all interests to be transferred shall be
the purchase price set forth in the Transfer Notice, which shall
not exceed the highest price permitted under the Affordable
Restrictions. All additional terms of the contract shall be
consistent with the Affordable Restrictions. Sublessee hereby
agrees to execute a contract with a pre-qualified purchaser
identified by the Lessor 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.
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
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
Page 22 of 52
deems necessary to verify purchaser jSublessee qualifications. All purchase
and sale contracts shall be deemed to be contingent on the buyer and
transaction being qualified under the Affordable Restrictions. Lessor and the
proposed parties to a transfer transaction may agree to additional time
periods necessary to verify full compliance with all aspects of the Affordable
Restrictions. In no case shall Lessor, or its designees, be deemed to waive
with respect to any party any requirement applicable to that party under the
Affordable Restrictions where it turns out that such requirement was not in
fact met, tme or complied with. Lessor reserves, to itself and to its designees,
all legal and equitable rights it deems necessary or appropriate to ensure that
all portions of the Demised Premises are used for Affordable Housing, the
purpose for which they were intended, including but not limited to
termination of the sublease for any portion of the Demised Premises and
forcing sale and reassignment of any improvements thereon.
d. Lessor shall be deemed reasonable in withholding its approval for any
proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. After the
Lessor has reviewed and approved a contract, Sublessee shall not have the
ability to amend the terms of the contract unless Sublessee obtains Lessor's
approval of the amendment as set forth in Paragraph c., above. The Sublessee
shall only transfer their interest to approved persons, as defined by the
Affordable Restrictions for moderate or lesser income, or to Lessor in the
event Lessor and Sublessee are unable to find a qualified purchaser, so long
as Lessor chooses to purchase the Affordable Housing Unit, in Lessor's sole
and absolute discretion. Additionally, after the expiration of the thirty (30)
day period described in Paragraph b. above, and before Sublessee has found a
qualified purchaser, Lessor may, but is not obligated to, continue the search
for a qualified purchaser. In the event Lessor finds and identifies a qualified
purchaser prior to Sublessee doing so, the procedure set forth in Paragraph
b.2., above, shall be followed.
e. Lessee and Sublessees are deemed to understand and agree that Lessor may,
in its absolute discretion, require that any Affordable Housing Unit originally
sold as an affordable "ownership" and "occupancy" Affordable Housing Unit
which is made the subject of any unauthorized offer to rent, or which is
attempted to be or is actually rented absent specific written Lessor
authorization or as authorized in the Affordable Restrictions, be deemed to
have become the subject of an irrevocable offer to sell the Affordable Housing
Unit and thus subject to the right of first refusal provisions of this Article XII
and allow Lessor or its designee to purchase the Affordable Housing Unit at
the highest price permitted under the Affordable Restrictions. Lessor may
establish rental first right of refusal procedures similar to those set forth in
Paragraphs a. - d., above, for Affordable Housing Units to be used for
affordable rentals in accordance with the terms contained herein and in the
Affordable Restrictions~ In such case, a Sublessee may rent their Unit so long
Page 23 of 52
as all rental agreements follow the guidelines and procedures set forth herein
and in the Affordable Restrictions, including but not limited to providing
Monroe County with a copy of the proposed rental agreement for review and
approval. Additionally, the rental agreement must include a copy of the
Association rules and regulations, as well as an acknowledgement by the
tenant that they will abide by the rules and regulations of the Association, and
Sublessee shall provide the Association with a copy of said rental agreement
to ensure compliance. Furthermore, no Sublessee shall be authorized to enter
into a rental agreement" for an Affordable Housing Unit containing a term
greater than one (1) year, or containing an automatic renewal term that would
frustrate Lessor's rights or continued affordability expectations established
under this Lease or the Affordable Restrictions. Additionally, in the event a
tenant has been cited for a violation of the roles and regulations of the
Association more than twice in any calendar year, Sublessee hereby agrees
not to renew said lease without first obtaining the approval of the Association
Board of Directors, and said approval may be withheld in their sole and
absolute discretion. Any rental agreement shall contain the following warning
prominently set forth in writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER ORABANDONM:ENT, AS DEFINED BY CHAPTER 83
FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR
RHSPONSmLE FOR STORAGE OR DISPOSITION OF TIlE LESSEE'S
PERSONAL PROPERTY.
Section 12.06 Assignment by Lessor. This Lease is freely assignable by the Lessor,
and upon such assignment, the Lessor's liability shall cease and Lessor shall be released
from any further liability. In the event the ownership of the land comprising the Leased
Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any
other person or entity, this Lease shall not cease, but shall remain binding and unaffected.
Section 12.07 Death of a Unit Owner or PennanentAbsence From OccQpancy. In the
event the Owner of an Affordable Housing Unit dies, Lessor shall, unless for good cause
shown, consent to a transfer of the l~asehold interest to the spouse, child(ren) or other
heirs, devisees, legatees or beneficiaries of the Affordable Housing Unit Owner provided
that such persons state, in writing, under oath that they have reviewed the terms of this
Lease and any related documents, and that they understand and accept the terms of this
Lease by signing an acknowledgement, which is substantially in a form similar to that
attached hereto as Exhibit E. All spouses, heirs, devisees, legatees or other beneficiaries
must demonstrate to the Lessor's reasonable satisfaction that they qualify for ownership
and/ or occupancy of an affected Affordable Housing Unit as provided for under this Lease
and in the Affordable Restrictions. All estates and leasehold or other interests granted in or
conveyed with respect to any of the Demised Premises do not extend to any degree so as to
limit or inhibit the intent and operation of this Lease and the Affordable Restrictions, it
being expressly and irrevocably accepted on behalf of all future Sublessees and all those
who would or might succeed to their interests, that these Demised Premises and each and
Page 24 of 52
every portion thereof, for the entire Term of this Lease, are to be used as affordable housing
according to the Mfordable Restrictions. In the event the spouse, heirs, devisees, legatees
or beneficiaries of a deceased Owner do not meet the requirements for affordable housing,
such persons shall not occupy the premises and shall not be entitled to possession, except
and only to the extent that the Lessor permits same, under conditions that it determines
furthers the goals and public purposes of this Lease and the Affordable Restrictions.
Therefore, in such event, the heirs of the decedent shall, if required by Lessor, transfer their
interest in the Affordable Housing Unit in accordance with the provisions of this Article XII
and cooperate with the Lessor in accomplishing same. It is the intent of this Lease, to the
full extent Florida law permits, that constitutional homestead rights not be construed to
inhibit or limit the intended operation of this provision.
Section 12.08 Administrative Fees. With the exception of the initial sales by Initial
Lessee, the Lessor or its designee shall be entitled to charge three and one-half percent (31/2
96) of the Purchase Price (gross compensation however described) for any transferred
interest (other than simple security mortgage interests or rental agreements) in which
Lessor identified the purchaser, as an administrative fee for coordinating the closing on any
Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of closing.
This fee does not include other seller and buyer closing related costs such as title insurance,
documentary stamps, intangible taxes, prorated taxes, real estate commissions, insurance,
homeowners' assessments, loan expenses and the like, or rental management or processing
fees for rental units. In the event Lessor was unable to identify a purchaser, Lessor shall
still be entitled to an administrative fee of one and one-half percent (11/2 96) of the Purchase
Price for review of the contract and assistance with coordinating the closing on the
Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its designee
shall be authorized to designate closing, escrow and title agents involved in all transactions
involving interests subject to this Lease. After the initial sale of each Mfordable 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 1/2 96) for an
owner who purchased his or her Affordable Housing Unit without actual, constructive or
regulatory notice of the potential applicability of a greater percentage fee.
ARTICLE XIII
Condemnation
Section 1~.01 Eminent Domain: Cancellation. If, at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain, there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (30) days after such award has been
Page 25 of 52
made, then the matters in dispute shall be determined in accordance with the rules of the
American Arbitration Association. Such determination made by the arbitration shall be
binding on the parties. If the legal title to the entire Demised Premises be wholly taken by
condemnation, the Lease shall be cancelled.
Section 1~.02 ApJlOrtionment. 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 PrQject.
(a) lnitiall.essee shall commence construction of the Project no later than one
hundred twenty (120) days after the issuance of the building permits necessary for the
construction of the Project, and shall substantially complete construction of all forty-nine
(49) Affordable Housing Units within eighteen (18) months thereafter. The foregoing
limita~ion of time for the completion of the Project may be extended by written agreement
between the parties hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers, letters
or other materials in their possession or under their control where such information is
subject to public disclosure under the provisions of Chapter 119, F.S., or successor or
supplemental statutes. However, nothing contained herein shall be construed to render
documents or records of Initial Lessee or any other persons that would not be deemed
public records under Chapter 119 to be such records only because of this provision. Lessees
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
Page 26 of 52
performance under this Lease in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said officials or of
the Lessor, shall, .during the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, have access to and the right to examine and audit
any Records of the Lessee involving transactions related to this Agreement.
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
permits and licenses, provided that such approvals, permits and licenses shall be obtained
at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be
construed to obviate or lessen any requirements for customary development approvals from
any permitting authority, including the Lessor. Nothing in this Lease shall be construed as
the Lessor's delegation or abdication of its zoning authority or powers and no zoning
approval that Initial Lessee may require to complete its performance under this Lease has
been or shall be deemed agreed to, promise or contracted for by this Lease.
(e) Construction of the Project on the Demised Premises prior to and during the
Term of this Lease shall be performed in a good and workmanlike manner, pursuant to
written contracts with licensed contractors and in accordance with any and all requirements
of local ordinances and with all rules, regulations and requirements of all departments,
boards, officials and authorities having jurisdiction thereof. It is understood and agreed
that the plans and specifications for all constmction shall be prepared by duly qualified
architects/engineers licensed in the State of Florida.
(t) . At all times and for all purposes hereunder, the Initial Lessee is an
independent contractor/lessee and not an employee of the Board of County Commissioners
of Monroe County or any of its agencies or departments. No statement contained in this
Lease. shall be construed as to find the Initial Lessee or any of its employees, .contractors,
servants or agents to be employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of County
employees. No covenant or agreement contained herein shall be deemed to be a covenant
or agreement of any member, officer, agent or employee of Monroe County in his or her
individual capacity, and no member, officer, agent or employee of Monroe County shall be
liable personally on this Lease or be subject to any personal liability or accountability by
reason of the execution of this Lease.
(g) Initial Lessee agrees that it will not discriminate against any employees,
applicants for employment, prospective Sublessees or other prospective future subinterest
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
Page 27 of 52
where the handicap does not affect the ability of an individual to perform in a position of
employment, and to abide by all federal and state laws regarding non-discrimination.
14.02 Access to the Project and Inspection. The Lessor or its duly appointed agents
shall have the right, at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Artiele 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 excusable 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
Mortgase Financing
Section l~.Ol 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 Trost (or to another private lender so long as the terms and conditions of the
financing from private lender are on substantially similar terms to those then existing by
the other lenders referred to in this Section), or to similar lending institutions authorized to
make leasehold mortgage loans in the State of Florida, or to any public or quasi-public
lender.
(b) Until the time any leasehold mortgage(s) shall be satisfied of record,
Page 28 of 52
when giving notice to the Initial Lessee with respect to any default under the provisions of
this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's
leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s)
(including assignments thereof) as recorded in the Public Records of Monroe County,
Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a
copy of such notice has been mailed to such leasehold mortgagee(s), which notice must
specify the nature of each such default. Initial Lessee shall provide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises.
(c) In case the Initial Lessee shall default under any of the provisions of
this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such
default whether the same consists of the failure to pay Rent or the failure to perform any
other matter or thing which the Initial Lessee is required to do or perform and the Lessor
shall accept sucb 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 tenns
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 15.01( d) prior to the cure provisions set forth in Section 15.01( c)
above, the Lessor will enter into a new Lease of the Demised Premises with the Initial
Lessee's. leasehold mortgagee(s), or, at the request of such leasehold mortgagee(s), to a
corporation formed by or on behalf of such leasehold mortgagee(s) or by or on behalf of the
holder of the note secured by the leasehold mortgage, for the remainder of the term,
effective on the date of such termination, at the Rent and upon the covenants, agreements,
terms, provisions and limitations contained in this Lease, provided that such leasehold
mortgagee(s) make written request and execute, acknowledge and deliver to the Lessor such
new Lease within thirty (30) days from the date of such termination and such written
request and such new Lease is accompanied by payment to the Lessor of all amounts then
due to the Lessor, including reasonable counsel fees, court costs and disbursements
incurred by the .Lessor in connection with any such default and termination as well as in
connection with the execution, delivery and recordation of such new Lease, less the net
income collected by the Lessor subsequent to the date oftennination of this Lease and prior
to the execution and delivery of the new Lease, and any excess of such net income over the
aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due
under such new Lease.
Page 29 of 52
Any new Lease referred to in this Section 15.01( d) shall not require any
execution, acknowledgement or delivery by the Lessor in order to become effective as
against the Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
theretofore have received written notice; and (ii) an agreement by the leasehold
mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition, immediately
upon receipt by the Lessor such new Lease, as provided in this Section 1S.D1(d), the Lessor
shall be deemed to have executed, acknowledged and delivered to the leasehold
mortgagee(s) an assignment of all Subleases covering the Demised Premises which
theretofore may have been assigned and transferred to the Lessor and all Subleases under
which Sublessees shall be required to attorn to the Lessor pursuant to the terms and
conditions of such Subleases or this Lease. Such assignment by the Lessor shall be deemed
to be without recourse as against the Lessor. Within ten (10) days after a written request
therefore by the leasehold mortgagee(s), such assignment or assignments shall be reduced
to a writing in recordable form and executed, acknowledged and delivered by the Lessor to
the leasehold mortgagee(s).
(e) The Initial Lessee's leasehold mortgagee(s) may become the legal
owner and holder of this Lease by foreclosure 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 lS.01(f) below.
(f) In the event that a( ) leasehold mortgagee(s) shall become the owner or
holder of the Lessee's interest by foreclosure 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 tQ any or all of the Initial Lessee's interest in the Lease and/or any portion of the
Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof,
the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and
obligations of performance relating to construction, marketing and transfer to Sublessees
and it shall be deemed and construed, without further agreement between the Lessor and
the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees'
purchaser(s) or assignee(s) at any such sale or upon assignment of Initial Lessee's interest
by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's
interest has assumed and agreed to carry out any and all covenants and obligations of Initial
Lessee, including but not limited to the construction of the Affordable Housing Units
contemplated herein. In no event shall anyprotections afforded a( ) leasehold mortgagee(s)
under this Lease be construed to permit eventual use of the Demised Premises for purposes
inconsistent with this Lease or the Affordable Restrictions.
Page go of 52
(g) Within ten (10) days after Lessor's receipt of written request by Initial
Lessee or by Initial Lessee's leasehold mortgagee(s), or after receipt of such written request
in the event that upon any sale, assignment or mortgaging of Initial 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 mown and
may be asserted by the Lessor against the Lessee with respect to any obligations pursuant to
this Lease.
(h) So long as the Initial Lessee's interest in this Lease shall be mortgaged
to a ( ) leasehold mortgagee(s), the parties agree for the benefit of such leasehold
mortgagee(s), that they shall not surrender or accept a surrender of this Lease or any part of
it, nor shall they cancel, abridge or otherwise modify this Lease or accept material
prepayments of installments of Rent to become due without the prior written consent of
such mortgagee(s) in each instance.
(i) Reference in this Lease to acquisition of the Initial Lessee's interests in
this Lease by the ( ) leasehold mortgagee(s) shall be deemed to refer, where circumstances
require, to acquisition of the Initial Lessee's interest in this Lease by any purchaser at a sale
of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold
mortgagee(s) in such instance or instances shall also be applicable to any such purchaser(s).
(1) 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).
Page 31 of 52
0) In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the
release of any and all applicable portions of its (their) mortgagees) on the entire Demised
Premises so as to grant clear title to the Sublessee. The details and release payment
requirements shall remain within the reasonable business discretion of the Initial Lessee
and the leasehold mortgagee(s).
(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of priority with
respect to foreclosable interests or rights according to the laws of the State of Florida or as
contractually agreed by and among multiple mortgagees, where there are such.
Section 1~.02 Permitted Mortga&es for Sublessees (Unit Owners 1. 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 10096 of the maximum allowable sale price of the Affordable Housing Unit as set
forth in the Affordable Restrictions;
(b) Sublessees shall not be entitled to mortgage their respective leasehold
interests in the event the terms of the note, which is secured by the mortgage, may result in
negative amortization, unless otherwise approved by Lessor;
(c) For informational and record keeping purposes, Sublessees shall present
to Lessor (i) a copy of approval(s) for loans encumbering their Affordable Housing Unit
within five (5) business days after such loans are. approved, and (ii) no sooner than five (5)
business days before the scheduled loan closing date, a copy of the owner's and/or any
lender's title insurance commitment. Lessor's failure to approve or object to any of the
foregoing documents prior to the closing of a relevant loan shall not preclude closing of the
relev~t loan and shall not constitute an opinion or confirmation by Lessor that the
corresponding loans or title insurance policies comply with or conform to the requirements
of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of
Lessor's rights to enforce same;
Page 32 of 52
(d) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery
of an assignment or other conveyance to a Sublessee's mortgagee in lieu of foreclosure with
respect to any real property subject to the provisions of this Lease, said mortgagee, or the
purchaser at foreclosure, shall comply with the provisions of Article XII. No sale of any
Affordable Housing Unit shall be permitted at an amount in excess of that allowed under
the Affordable Restrictions and shall otherwise fully comply with all applicable Affordable
Restrictions. Any Affordable Housing Unit accepted in lieu of foreclosure or as to which a
mortgagee intends to foreclose shall be subject to the Lessor's right of first refusal as set
forth in Article 12.05. Nothing herein shall preclude potential purchasers approved by
Lessor from bidding at any foreclosure sale and, where successful, purchasing the subject
Affordable Housing Unit at the foreclosure sale price in accordance with Article XII; and
(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 instmcts the mortgagee or any party conducting the closing of a sale or through an
unauthorized transfer to pay the amount of said excess directly to Lessor. In the event, for
any reason, such excess proceeds are paid to Sublessee, Sublessee hereby agrees to promptly
pay the amount of such excess to Lessor.
ARTICLE XVI
Default
Section 16.01 Notice of Default. Lessee shall not be deemed to be in default under
this Lease in the payment of Rent or the payment of any other monies as herein required
unless Lessor shall first give to Lessee ten (10) days written notice of such default and
Lessee fails to cure such default within ten (10) days of receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section, Lessee shall not be deemed to be in default under this Lease unless Lessor shall
first give to Lessee thirty (30) days written notice of such default, and Lessee fails to cure
such default within the immediate thirty (30) day period thereafter, or, if the default is of
such a nature that it cannot be cured within thirty (30) days, Lessee fails to commence to
cure such default within such period of thirty (30) days or fails thereafter to proceed to the
curing of such default with all possible diligence.
Page 33 of 52
Regardless of the notice and cure periods provided herein, in the event that more
rapid action is required to preselVe 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 breach of this Lease by Lessee, Lessor,
and after the necessary notice provided to Initial Lessee's leasehold mortgagee(s), in
addition to the other rights or remedies it may have, shall have the immediate right to
terminate this Lease according to law. Termination of the Lease under such circumstances
shall constitute effective, full and immediate conveyance and assignment to Lessor of all of
Initial Lessee's property and redevelopment rights to and associated with the Demised
Premises and the Project, subject to mortgagee protections as provided herein.
Furthennore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the
other rights or remedies it may have, shall have the immediate right of re-entry and may
remove all persons and personal property from the affected portions of the Demised
Premises. Such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee, or where statutory abandonment or unclaimed
property law pennits, disposed of in any reasonable manner by Lessor without liability or
any accounting therefore.
Included in this right of reentry shall be any instance wherein a Sublessee renounces
the Lease or a Sublease or abandons the Demised Premises, in which case Lessor may, at its
option, in an appropriate case and subject to any rights of a mortgage holder, obtain
possession of the abandoned property in any manner allowed or provided by law, and may,
at his option, re-Iet the repossessed property for the whole or.anypart of the then unexpired
tenn, receive and collect all Rent payable by virtue of such reletting, and hold Sublessee
liable for any difference between the Rent that would have been payable under this Lease
and the net Rent for such period realized by Lessor, by means of such reletting. However,
such Lessor rights shall not abrogate a mortgagee's rights to the extent those rights do not
conflict with or injure Lessor's interests as established under this Lease. Personal property
left on the premises by a Sublessee may be stored, sold, or disposed of by Lessor, and Lessor
accepts no responsibility other than that imposed by law.
Page 34 of 52
Should Lessor elect to re-enter, as herein provided, or should Lessor take possession
pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may
either terminate this Lease or it may from time to time, without terminating this Lease, re-
let the Demised Premises or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such Rent or Rents and on such other
terms and conditions as Lessor in its sole reasonable discretion may deem advisable with
the right to make alterations and repairs to the Demised Premises. On each such re-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 anytime
thereafter elect to terminate this Lease for such previous breach. Should Lessor at anytime
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach, including the cost
of recovering the Demised Premises, which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.0~ Lessor's Right to Perform. In the event that Lessee, by failing or
neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty (30)
days after receipt of written notice from Lessor specifying the nature of the act or thing to
be done or performed, then Lessor may, but shall not be required to, do or perform or cause
to be done or performed such act or thing (entering on the Demised Premises for such
purposes, with notice, if Lessor shall so elect), and Lessor shall not be or be held liable or in
any way responsible for any loss, inconvenience or annoyance resulting to Lessee on
account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof,
including compensation to the agents and employees of Lessor. Any act or thing done by
Lessor pursuant to the provisions of this section shall not be construed as a waiver of any
such default by Lessee, or as a waiver of any covenant, term or condition herein contained
or the. performance thereof, or of any other right or remedy of Lessor, hereunder or
otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this
Lease, if not paid when the amounts become due as provided in this Lease, shall bear
interest from the date they become due until paid at the highest rate allowed by law. Lessor
shall have the same rights set forth in this Section with respect to any future sub interest
holder's respective portion of the Demised Premises.
Section 16.04 Default Period. All default and grace periods shall be deemed to run
concurre~tly and not consecutively.
Section 16.0!=\. Affordable Restrictions. In the event any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion, or if Lessee or any Sublessees fail to comply with the Affordable Restrictions, as
Page 35 of 52
they pertain to their respective interests in or portions of the Demised Premises, such an
occurrence will be considered a material default by the offending party. In the foregoing
event, Lessor (or the Initial Lessee (or its assigns) in the event of and with respect only to a
default by a particular Sublessee) may immediately terminate the Lease or Sublease. l.ac;see
hereby agrees that all occupants shall use the Leased Premises and Improvements for
affordable residential purposes only and any incidental activities related to the residential
use as well as any other uses that are permitted by applicable zoning law.
ARTICLE XVII
Repair Obligations
Section 17.01 Repair Obligations. During the continuance of this Lease the Lessee,
and every Sublessee with respect to their leased or purchased portions of the Demised
Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures,
landscaping and equipment which are brought or constructed or placed upon the Demised
Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste or neglect
of any building or other property to be committed, except for that of normal wear and tear.
The Lessee will repair, replace and renovate such property as often as it may be necessaryin
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
affor4~ble housing complex and the other matters as may be set forth in this Lease, with
related amenities and facilities, and for no other purposes whatsoever without Lessor's
written consent.
Section 18.02 Termination. Upon termination of this Lease, the Lessee will
peaceably and quietly deliver possession of the Demised Premises, unless the Lease is
extended as provided herein. Therefore, Lessee shall surrender the improvements together
with the leased premises. Ownership of some or all improvements shall thereupon revert to
Lessor.
Page 36 of 52
Section 18.o~ Recovery of Litigation E~ense. In the event of any suit, action or
proceeding, at law or in equity, by either of the parties hereto against the other, or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease, including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys' fees including appellate, bankruptcy and post-judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Affordable Restrictions from any person or persons from or to whom a
demand or enforcement request is made, regardless of actual initiation of an action or
proceeding.
Section 18.04 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as-is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
Lessor as to the nature, condition or usability of the Demised Premises, or the uses to which
the Demised Premises may be put. The Lessor shall not be responsible for any latent defect
or change of condition in the improvements and personalty, or of title, and the Rent
hereunder shall not be withheld or diminished on account of any defect in such title or
property, any change in the condition thereof, any damage occurring thereto, or the
existence with respect thereto of any violations of the laws or regulations of any
governmental authority. .
Section 18.0F; Hazardous Materials. Lessee, its Sublessees and assignees shall not
permit the presence, handling, storage or transportation of hazardous or toxic materials or
medical waste ("hazardous waste") in or about the Demised Premises, except in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines of any
government agency having jurisdiction and the applicable board 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 iJ;1clude 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
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 RelatedAgreement(s) after recordation.
ARTICLE XIX
Representations. Warranties of Title and Ouiet Enjoyment
and No Unlawful or Immoral PUlpose or Use
Section lQ.Ol Representations. Warranties of Title and Ouiet Elljovment. lasor
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 lQ.02 No Unlawful or Immoral PUllKlse or Use. The Lessee will not use or
occupy said premises for any unlawful or immoral purpose and will, at Lessee's sole cost
and expense, conform to and obey any present or future ordinance and/or rules,
regulations, requirements and orders of governmental authorities or agencies respecting the
use and occupation of the Demised Premises.
ARTICLE XX
Miscellaneous
Section 20.01 Covenants Running with Land. All covenants, promises, conditions
and obligations contained herein or implied by law are covenants running with the land
and, except as otherwise provided herein, shall attach and bind and inure to the benefit of
the Lessor and Lessee and their respective heirs, legal representatives, successors and
assigns, though this provision shall. in no way alter the restrictions on assignment and
Page 38 of 52
subletting applicable to Lessee hereunder. The parties agree that all covenants, promises,
conditions, terms, restrictions and obligations arising from or under this Lease and the
Affordable Restrictions benefit and enhance the communities and neighborhoods of
Monroe County and the private and public lands thereof, and have been imposed in order to
assure these benefits and enhancements for the full Term of this Lease. It is intended,
where appropriate and to serve the public purposes to be furthered by this Lease, that its
provisions be construed, interpreted, applied and enforced in the manner of what is
commonly referred to as a "deed restriction."
Section 20.02 No Waiver. Time is of the essence in the performance of the
obligations of the parties hereto. No waiver of a breach of any of the covenants in this Lease
shall be construed to be a waiver of any succeeding breach of the same covenant.
Section 20.0~ Written Modifications. No modification, release, discharge or waiver
of any provisions hereof shall be of any force, effect or value unless in writing signed by the
Lessor and Lessee, or their duly authorized agents or attorneys.
Section 20.04 Entire Agreement. This Lease, including the Preamble and any
written addenda and all exhibits hereto (all of which are expressly incorporated herein by
this reference) shall constitute the entire agreement between the parties with respect to this
instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20.0~ Notices. If either party desires to give notice to the other in
connection with and/or according to the terms of this Lease, such notice shall be given by
certified mail return receipt requested or by national overnight tracked and delivery-receipt
courier service, and unless otherwise required to be "received", it shall be deemed given
when deposited in the United States mails or with the courier service with postage or
courier fees prepaid. Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is to be given, or the addition of one
additional person or location for notices to be given, but no such change shall be effective
unless and until it shall have been accomplished by written notice given in the manner set
forth in this Section. Notification to Lessor shall be as set forth herein, to both of the
follOwing offices, unless a different method is later directed as prescribed herein or by the
Affordable Restrictions:
Monroe County Attorney
PO Box 1026
Key West, Florida 33041
Tel. 305-292-3470
Director - Monroe County Division of
Housing 8r Community Development
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 200
Marathon, Florida 33050
Tel. 305-289-6002
Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee)
consist of more than one person, such persons shall be jointly and severally liable on the
covenants of this Lease. . .
Page 39 of 52
Section 20.07 Liability Continued. Lessor Liability. All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment. In addition, the Lessor's liability under this Lease, unless specifically
dealt with differently herein, shall be at all times limited to the Lessor's interest in the
Demised Premises. .
Section 20.08 Caption~. 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
constmed in any way as part of this Lease, nor as supplemental thereto or amendatory
thereof.
Section 20.10 GovemingLaw. Venue. ThisAgreementshallbeconstmedunderthe
laws of the State of Florida, and th~ venue for any legal proceeding to enforce or determine
the terms and conditions of this Lease shall be Monroe County, Florida.
Section 20.11 Holdin2 Over. Any holding over after the expiration of the Term of
this Lease, with consent of Lessor, shall be constmed 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
defenq at its own expense, any and all claims for a brokerage commission by either of them
with any brokers.
Section 20.1~ Partial Invalidity. If any provision of this Lease or the application
thereof to any person or circumstance shall at any time or to any extent be held invalid or
unenforceable, the remainder of this Lease or the application of such provision to persons
or circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby.
Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented
from the performance of any act required hereunder by reason of strikes, lockouts, labor
trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or
other severe weather events, war or 'other reasons of like nature not the fault of the party
Page 40 of 52
delayed, in performing work or doing acts required under this Lease, the period for the
performance of any such act shall be extended for a reasonable period.
Section 20.1Fi Lessor/Lessee Relationship. Non-Reliance by Third Parties. This
Lease creates a lessor jlessee 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 beneficiaty 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 obtain~g constmction 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 tenninate this Lease. Termination of the
Lease under such circumstances shall constitute effective, full and immediate conveyance
and assignment to Lessor of all of Initial Lessee's property and redevelopment rights to and
associated with the Demised Premises and the Project, subject to mortgagee protections as
provided herein. Initial Lessee hereby acknowledges that in the event Initial Lessee
tenninates this Agreement, Initial Lessee will not receive a reimbursement from Lessor for
costs incurred by Initial Lessee prior to such termination.
SecQon 2~.17 Radon Gas Notification. Radon is a nal1:1rally. 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 infonnation regarding radon and
radon .testing may be obtained from your county health unit. Lessor shall not be
responsible for radon testing for any persons purchasing, leasing or occupying any portion
of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless
and indemnify Lessor for damages or claims related thereto and releases Lessor from same.
Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in Monroe
County. There are no measures that can guarantee against mold, but additional
information regarding mold and mold prevention and health effects may be obtained from
your county health unit or the EP A or CDC. Lessee and Sublessees accept responsibility to
inspect for mold and take measures to reduce mold. Lessor shall not be responsible for
Page 41 of 52
mold testing for any persons purchasing, leasing or occupying any portion of the Demised
Premises, and all owners, Lessees and Sublessees shall hold Lessor hannless and indemnify
Lessor for damages or claims related thereto and releases Lessor from same.
Section 20.1Q Subsequent Changes in Law or Regulation. Where a change can
reasonably be applied to benefit, enhance or support Lessor's affordable housing goals,
objectives and policies, Lessor shall have the right to claim the benefit from any subsequent
change to any applicable state or federal law or regulation that might in 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 PUlpose. Lessor, through this Lease and the Affordable
Restrictions, furthers a government housing purpose, and, in doing so, expressly res elVes
and in no way shall be deemed to have waived, for itself or its assigns, successors,
employees, officers, agents and representatives any sovereign., quasi-governmental and any
other similar defense, immunity, exemption or protection against any suit, cause of action,
demand or liability.
Section 20.21 Breach of Related Agreements/Remedies. To the extent that any
purchase and sale or Related Agreement relating to the Demised Premises incorporates,
relates to and/or is contingent upon the execution of and/or any performance under this
Lease, any material breach under such other agreement shall be a material breach of this
Lease and any material breach under this Lease shall be a material breach of such other
agreement. Moreover, the parties agree that any remedy available for any breach under this
Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's
complete discretion, with any election to avail itself or proceed under any particular
remedial mechanism in no way to be constmed 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 tim~ during the Term of this Lease, such rules, procedures, administrative forms of
proceedings and such evidentiary standards as deemed reasonable within Lessor's
legislative prerogative, to implement enforcement of the terms of this Lease and the
Affordable Restrictions. Such forums may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and
only by way of one example, and not as any limitation, the facts and legal effect of an
allegedly unauthorized "offer to rent", or, for another example, an unauthorized
"occupancy." However, nothing herein shall be deemed to limit Lessor, Initial Lessee or any
mortgagee from access to an appropriate court of competent jurisdiction where the
resolution of any dispute would be beyond the competence or lawful jurisdiction of any
administrative proceeding.
Page 42 of 52
Section 20.2~ Exceptions to Lease/Rental Prohibition. In addition to privileges
recognized herein for Initial Lessee and certain "bulk" purchasers, Lessor or its designee, in
its sole discretion, shall have the right to adopt as part of future Affordable Restrictions
provisions to allow Sublessees the limited privilege to rent or lease their Affordable Housing
Units to qualified persons. Requests for such approval shall be made in accordance with
such procedures Lessor may in the future choose to adopt. It is contemplated, though not
promised or required, that certain limited rental provisions may be adopted in the future
for circumstances such as, for example, but without limitation:
duty.
(a) A Sublessee's required absence from the local area for official military
(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 Draftil1J of Lease and any Related ARreement. The parties
acknowledge that they jointly participated in the drafting of this Lease and any Related
Agreements with the benefit of counsel, or had the opportunity to receive such benefit of
counsel, and that no term or provision of this Lease or a Related Agreement shall be
construed in favor of or against either party based solely on the drafting of this Lease or the
Related Agreement.
Section 20.21=\ Lessor's Duty to C001>erate. 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
regar~ng any relevant terms and conditions contained herein.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written.
Signed, Sealed and Delivered
in the presence of two witnesses:
';::. :.. .:. ~~.~:~.~:~ .~: ..~
Printed Name
(both as to Lessor)
Printed Name ~1It, ~
P:t:::::&1/~~
(both as to Lessee)
COMPANY,
Page 44 of 52
EXHIBIT "A"
LEGAL DESCRIPTION
hall 11I7III
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1ou, MONdlag - --. %.. ~~'. .1&'1; oe . .-n d ftoak
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di8al-4--cI . ..8011&1doa ... 13-1.,., k.zd ~ Coaatw e[ felll-.z.,
........ .t.a o~~!~_l "11'" IIoaIt 87, .... .7, d .. ...ua
a.ooalll cd ~ eo.._, ftOdda. .
-- COIIm
MIl'" _
Page 45 of 52
aBSOLUTION NO. 33 -1973
WHEREAS, the Boa~d of County CommhsioDer8 of Monroe CO\1Dty,
Florida" bae beeD petitiODed to ren01lb.ce ad cU..claim IIDY d.ht of the Count,.
ancl the pubUc iA anel to the herematter described Btreet, aUey-way, ~oad or
highway .s delineated on the hereiD&fter de.cribed map or plat, and
WHEREAS, <<tue Dotice bAs been published and a public hearill, bas
be.D held :lD accordance with Chapter 336, Florida Statutes, and
WHERIiAS, at satd public heariD. no objecttOlls were made to the
~enoUl1clnl and dieclaiming of any dght of the County aDd the public ill aDd to
the herelaafter dellcribed In.et, aUe,-wa" road 01' b1ghway all de1tneated
on the bel"elnafter de.cribed map or plat, now therefoZ'e,
BE IT RESOLVED BY THE BOAaD OJ' COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, that .~icl Boud hereby renounce. and
dillclalm. BAy d.ht of the County anel the public ilL aDd to the foUowtn. de-
scribed etreet, alle,.-wa" road or hi,hwa, as delineated OIl tbe hereicaafter
described map 01' platt to-wit:
That port ion of First A"aue ly1Da anel beill, betw.en
Blocks 38 and 39, McDonald's Plat, Stock 1.1811.41,
recorded 1D Plat Book I, pale 55 of the P'Ilblic aecol'd.
Of MOD roe COU11ty, Florida.
BE IT FURTHJ:a BESOL VJ:D BY SAID BOARD that the Clel'k of
eaid Board be, aad he iB hereby ordered to pubU8h DoUce of .aid meetiD,
in accordaace with the Pl'Ovi.t_1I of Chaptel" 336, Florida Statut...
DATED March 27, 1973.
Page 4Sa of S2
t'
EXHIBIT ~B99
DEPICTION OF PROJECT LAYOUT
, I I
Page 46 of 52
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This Instrument Prepared By:
JERRY COLEMAN, P.L.
201 Front Street, Suite 203
Key West, Florida 33040
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 Lef1Se, 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 ofMomoe County, Florida.
WHEREAS, the Commencement Date, as further defined in Article m of the Lease, has
occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the
Lease.
NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth
below is true and accurate.
Commencement Date:
, 200_
Initial Term Expiration Date:
. 210_
The execution Qfthis A.greement shall not constitute an exercise by Less~e of its option with
respect to any Extended Tenn.
,EXECUTED as a sealed instrument on the date first set forth above.
LESSOR:
LESSEE:
By:
its
By:
its
Witness 1
Witness 1
Witness 2
Witness 2
Page 47 of 52
EXHIBIT "D"
T enn Portion ~ 81m Term Portion ~ Btm
Lease Year 1 Aug 1 2006 $10.00 Lease Year 51 Aug 1 :a>58 $10.00
Lease Year 2 Aug 1 2001 $10.00 Lease Year 52 Aug 1 2057 $10.00
Lease Year 3 Aug 1 2008 $10.00 Lease Year 53 Aug 1 2058 $10.00
Lease Year 4 Aug 1 2009 $10.00 Lease Year 54 Aug 1 2059 $10.00
Lease Year 5 Aug 1 2010 $10.00 Lease Year 55 Aug 1 2080 $10.00
Lease Year 6 Aug 1 2011 $10.00 Lease Year :58 Aug 1 2081 $10.00
Lease Year 7 Aug 12012 $10.00 lease Year 57 Aug 1 2082 $10.00
Lease Year 8 Aug 1 2013 "0.00 Lease Year 58 Aug 1 2083 $10.00
Lease Year 9 Aug 1 2014 $10.00 Lease Year 59 Aug 1 2084 $10.00
Lease Year 10 Aug 1 2015 "0.00 Lease Yeer 60 Aug 1 2065 $10.00
Lene Year 11 Aug 1 2016 $10.00 Leese Year 61 Aug 1 2068 $10.00
Lease Year 12 Aug 1 2017 $10.00 Lease Year 62 Au; 1 2087 $10.00
Lease Year 13 Aug 1 2018 $10.00 Lease Year 83 Aug 1 2068 $10.00
Lease Year 14 Aug 1 2019 $10.00 Leese Year 64 Aug 1 2069 $10.00
Lease Year 15 Aug 1 2020 $10.00 Leise Year 85 Aug 1 2070 $10.00
Lease Year 16 Aug 1 2021 $10.00 Lease Year 86 Aug 1 2071 $10.00
Lease Year 17 Aug 1 2022 $10.00 Lease Year 87 Aug 1 2072 $10.00
Lease Year 18 Aug 1 2023 $10.00 Lease Year 68 Aug 1 2073 $10.00
Lease Year 19 Aug 1 2024 "0.00 Lease Year 89 Aug 1 2074 $10.00
Lease Year 20 Aug 1 2025 $10.00 Lease Year 70 Aug 1 2075 $10.00
Lease Year 21 Aug 1 2026 $10.00 Lease Year 71 Aug 1 2078 $10.00
Lease Year 22 Aug 1 2021 $10.00 Lease Year 72 Aug 1 20n $10.00
Lease Year 23 Aug 1 2028 $10.00 Lease Year 73 Aug 1 2078 $10.00
Lease Year 24 Aug 1 2029 $10.00 Lease Year 74 Aug12079 $10.00
Lease Year 25 Aug 1 2030 $10.00 Lease Year 75 Aug 1 2080 $10.00
Lease Year 26 Aug 1 2031 $10.00 lease Year 78 Aug 12081 $10.00
Lease Year 27 Aug 1 2032 $10.00 Lease Year 77 . Aug 1 2082 $10.00
Lease Year 28 Aug 1 2033 $10.00 Lease Year 78 Aug 1 2083 $10.00
Lease Yea~ 29 Aug 1 2034 $10.00 lease Year 79 Aug 1 2084 $10.00
Lease Year 30 Aug 1 2035 $10.00 Lease Year 80 Aug 1 2085 $10.00
Lease Year 31 Aug 1 2038 $10.00 Lease Year 81 Aug 1 2088 $10.00
Lease Year 32 Aug 1 2037 $10.00 Lease Year 82 Aug 1 2087 $10.00
Lease Year 33 Aug 1 2038 $10.00 Lease Year 83 Aug 1 2088 $10.00
Lease Year 34 Aug 1 2039 $10.00 Lease Yeer84 Aug 1 2089 $10.00
Lease Year 35 Aug 1 2040 $10.00 Lease Year 85 Aug 1 2090 $10.00
Lease Year 38 Aug 1 2041 $10.00 Lease Year 88 Aug 1 2091 $10.00
Lease Year 37 Aug 1 2042 $10.00 Lease Year 87 Aug 1 2092 $10.00
Lease Year 38 Aug 1 2043 $10.00 Lease Year 88 Aug 1 2093 $10.00
Lease Year 39 Aug 1 2044 "0.00 Lease Year 89 Aug 1 2094 $10.00
Lease Year 40 Aug 1 2045 $10.00 Lease Yeer 90 Aug 1 2095 $10.00
Lease Year 41 Aug 1 2048 $10.00 Lease Year 91 Aug 1 2098 $10.00
Lease Year 42 Aug 1 2047 $10.00 Lease Year 92 Aug 1 2097 $10.00
Page 48 of 52
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 Affordable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my, future similarly situated persons
and Monroe County's benefits.
· That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore I will be subleasing a parcel of land.
· That my legal counsel, , has ~lained to me the
tenns and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction.
· That I understand the terms of the Lease and how the terms and conditions set
forth therein will affect my rights as an owner of the Affordable Housing Unit,
now and in the future.
· That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I
understand and agree for myself and my successors in interest that Monroe
County may change some of the Affordable Restrictions over the 99-year term of
the Lease and that I will be expected to abide by any such changes.
· That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
· That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it to and that the timing and procedures for sales will be restricted.
· That my lease prohibits me from severing the improvements from the real
property.
· That my family and I must occupy the Affordable Housing Unit and that it cannot
be rented to third parties without the written approval of the Lessor.
· I tmderstand that in the event that I die, my home may be devised and occupied by
my wife, my children or any other heirs so long as they meet the requirements for
Page 50 of 52
This modification or
additional condition
shall:
NOT APPLY
X APPLY
to this Lease.
This modification or
additional condition
shall:
NOT APPLY
APPLY
to this Lease.
EXHIBIT "F"
Modltled or Additional Conditions
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee
r ADDmONAL PROVISIONl. Initial Lessee acknowledges that there shall be
reserved by this Lease a right of first refusal in favor of Lessor to purchase or
designate purchasers for any Affordable Housing Units offered for sale or lease.
Initial Lessee shall provide Lessor with written notice of its intent to commence
marketing efforts and Lessor shall have ninety (90) days from the date of
Lessor's receipt of the notice to enter into a reservation agreement with Initial
Lessee for the purchase/lease of all or a portion of the Affordable Housing Units,
unless Initial Lessee has been authorized, in writing (which the omission of this
provision may itself constitute), by Lessor to sell the Affordable Housing Units
to individuals otherwise qualified to own/rent the Affordable Housing Units and
subject to all other affordable housing covenants of record. Notwithstanding
anything contained herein to the contrary, all 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.
NLA
Page 52 of 52
EXHIBIT "G"
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 groWld 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 groWld 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 GroWld Lease entered between the parties on September 20, 2006, shall be amended as
follows;
A. The defmition 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 LlliTC 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 LlliTC rental, tenant eligibility and other guidelines,
Lessee shall be entitled to adhere to governing federal (LllITC) requirements
without being deemed in breach of this Lease or the Mfordable 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 Affordabl~ 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 Sub lessees, 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 by 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 ot: 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
F.
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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.
Section 14.03 shall be amended by adding the following sentence:
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SEkti<1i 20.14 shall be amended by adding the following sentence:
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 Project shall be required in order to
timely complete the Proj ect.
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~ay of April, 2009.
, "
~ I '
(SJ;1\U) ,
DANNY L. KOLHAGE
..~~
.:; ""eputy lerk
>.
'.! ..
,-
f J
r1sFnVELOPMENT COMPANY, LLC
By: 11I~
, Manager
ORC, LLC Amend. 1
4
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Detail by Entity Name
Florida Limited Liability Company
OVERSEAS REDEVELOPMENT COMPANY, LLC
Filing Information
Document Number L05000062434
FEI/EIN Number N/A
Date Filed 06/22/2005
State FL
Status ACTIVE
Effective Date 06/22/2005
Principal Address
3158 NORTHSIDE DRIVE
KEY WEST FL 33040
Mailing Address
3158 NORTHSIDE DRIVE
KEY WEST FL 33040
Registered Agent Name & Address
FIELDMAN KOENIG & HIGHSMITH, P.A.
3158 NORTHSIDE DRIVE
KEY WEST FL 33040 US
Manager/Member Detail
Name & Address
Title MGR
H- TRY, LLC
3158 NORTHSIDE DRIVE
KEY WEST FL 33040
Annual Reports
Report Year Filed Date
2007 01/09/2007
2008 04/14/2008
2009 04/30/2009
Document Images
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Copyrigtlt and Privacy Policies
Copyright '9 2.007 State of Florida, Department of State.
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I~~!i~..~~~~..~~~.~~~:
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Detail by Entity Name
Florida Limited Liability Company
H-TRY, LLC
Filing Information
Document Number L03000023349
FEI/EIN Number 200059624
Date Filed 06/26/2003
State FL
Status ACTIVE
Effective Date 06/25/2003
Principal Address
815 PEACOCK PLAZA
KEY WEST FL 33040
Mailing Address
815 PEACOCK PLAZA
KEY WEST FL 33040
Registered Agent Name & Address
HIGHSMITH, ROBERT E ESO
FELDMAN KOENIG & HIGHSMITH, PA
3158 NORTHSIDE DR
KEY WEST FL 33040 US
Manager/Member Detail
Name & Address
Title MGRM
OROPEZA, SCOTT G
815 PEACOCK PLAZA
KEY WEST FL 33040
Title MGRM
HIGHSMITH, ROBERT E
815 PEACOCK PLAZA
KEY WEST FL 33040
Title MGRM
KOENIG, TIMOTHY J
815 PEACOCK PLAZA
KEY WEST FL 33040
Annual Reports
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Report Year Filed Date
2007 02/23/2007
2008 03/07/2008
2009 04/06/2009
Document Images
04/06/2009 -- ANNUAL REPORT
03/07/2008 -- ANNUAL REPORT
02.J2.3J.2007...::.::..AN.N...UA.L...8.E.P'.Q8I
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Detail by Entity Name
Florida Limited Partnership
FLAGLER VILLAGE L1MTED PARTNERSHIP, LTD.
Filing Information
Document Number A09000000558
FEI/EIN Number NONE
Date Filed 08/05/2009
State FL
Status ACTIVE
Effective Date 08/05/2009
Principal Address
3158 NORTHSIDE DRIVE
KEY WEST FL 33040 US
Mailing Address
3158 NORTHSIDE DRIVE
KEY WEST FL 33040 US
Registered Agent Name & Address
KOENIG, TIMOTHY J
3158 NORTHSIDE DRIVE
KEY WEST FL 33040 US
General Partner Detail
Name & Address
Document Number L09000075337
OVERSEAS GP, LLC
3158 NORTHSIDE DRIVE
KEY WEST FL 33040 US
Annual Reports
No Annual Reports Filed
Document Images
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Copyright (-9 2007 State of Florida, Department of State.
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~~ .
Certificate of Limited Partnership
Name of Limited Partnership:
FLAGLER VILLAGE LIMTED PARTNERSHIP, LTD.
A09000000558
FILED
August 05, 2009
Sec. Of State
gharvey
Street Address of Limited Partnership:
3158 NORTHSIDE DRIVE
KEY WEST, FL. US 33040
Mailing Address of Limited Partnership:
3158 NORTHSIDE DRIVE
KEY WEST, FL. US 33040
The name and Florida street address of the registered agent is:
TIMOTHY J KOENIG
3158 NORTH SIDE DRIVE
KEY WEST, FL. 33040
I certify that I am familiar with and accept the responsibilities of
registered agent.
Registered Agent Signature: TIMOTHY J. KOENIG
The name and address of all general partners are:
Title: G
OVERSEAS GP, LLC
3158 NORTHSIDE DRIVE
KEY WEST, FL. 33040 US
The effective date for this Limited Partnership shall be:
08/05/2009
Signed this Fifth day of August, 2009
I (we) declare the I (we) have read the foregoing and know the contents thereof
and that the facts stated herein are true and correct.
General Partner Signature: ROBERT E. HIGHSMITH