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I. Growth Management
BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Bulk Item: Yes X No Division: Growth Management Department: Building Staff Contact Person/Phone #:Joseph M. Paskalik, Sr. Director/BuildinjOfficial 293-2574 AGENDA ITEM WORDING: Approval of the selection committee recommendation to award contract for Request for Proposals for Professional Services to perform Digitizing of Building Department Permit Records to Advanced Data Solutions, Inc. and approval of contract with Advanced Data Solutions. ITEM BACKGROUND: On June 24, 2010, eight responses were received in response to the advertised request for proposals for professional services to perform Digitizing of Building Department Permit Records. On Monday, August 24, 2009, the RFP selection committee reviewed the eight responses and scored each one based upon seven review criteria. The selection committee recommends that Advanced Data Solutions with the highest score be awarded the contract agreement. PREVIOUS RELEVANT BOCC ACTION: November 18, 2009 - BOCC directed staff to go out for a request for proposals (RFP) April 21, 2010 BOCC approved request to advertise RFP. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approve contract agreement with Advanced Data Solutions TOTAL COST: $80,000.00 FYI $40,00.00 INDIRECT COST: _BUDGETED: Yes X No _ DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: $80,000 SOURCE OF FUNDS: 180-52502-530340 REVENUE PRODUCING: Yes No X AMOUNT PER MONTH APPROVED BY: County Atty x OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 Year MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: ADS, INC. Contract # Effective Date: 09/15/10 Expiration Date: 09/15/13 Contract Purpose/Description: Digitizing and scanning of Building Department Permit Records. Contract Manager: Joe Paskalik 2574 11 (Name) (Ext.) (Department/Stop #) for BOCC meeting on 9/15/2010 Agenda Deadline: 08/31/2010 Total Dollar Value of Contract: $ Budgeted? Yes® No ❑ Grant: $ County Match: $ N/A IEstimated Ongoing Costs: $ (Not included in dollar value aboi CONTRACT COSTS $80,000 Current Year Portion: $ 40,000 FY 11 Account Codes: 180-52502-530-340-_ ADDITIONAL COSTS /yr For: CONTRACT REVIEW Changes Date In Needed Division Director ?13ji.10 Yes❑ No❑ Risk Manage nt Yes❑ No[� O.M.B./Purc sing Yes❑ No County Attorney Yes[:] No❑: Comments: 0MB Form Revised 2/27/01 MCP #2 Reviewer Date Out b 0 MONROE COUNTY CONTRACT FOR PROFESSIONAL SERVICES FOR THE SCANNING AND DIGITIZING OF BUILDING DEPARTMENT PERMIT RECORDS THIS CONTRACT is made and entered into this day of , by MONROE COUNTY ("COUNTY"), a political subdivision of the State of Florida, whose address is Marathon Government Center, 2798 Overseas Highway, Marathon, Florida, 33050, and Advanced Data Solutions, Inc. ("CONTRACTOR"), whose address is 141 Scarlet Boulevard, Suite A, Oldsmar, Florida 34677. Section 1. SCOPE OF SERVICES The CONTRACTOR shall do, perform and carry out in a professional and proper manner certain duties as described in the Scope of Services on Exhibit A. Section 2. COUNTY'S RESPONSIBILITIES 2.1 Prepare the permit files for transport to the scanning facility. 2.2 Maintain the Alchemy system. Section 3. TERM This contract effective is effective for three (3) years. It may be renewed for two (2) additional years at negotiated rates with the written consent of the parties. Section 4. COMPENSATION 4.1 Compensation shall be according to the rates shown on Exhibit B, attached. The maximum compensation per year available to the CONTRACTOR under this agreement is $80,000.00. The COUNTY agrees to pay the CONTRACTOR based on completion of work within the Scope of Service according to product delivered. Compensation shall be only for the amount of work completed, regardless of the cause of any delay. Section 5. PAYMENT TO CONTRACTOR 5.1 Payment will be made after delivery of digitized documents is received according to the Local Government Prompt Payment Act . Any request for payment must be in a form satisfactory to the County Clerk (Clerk). The request must describe in detail the services performed and the payment amount requested. 5.2 Continuation of this contract is contingent upon annual appropriation by Monroe County. Section 6. CONTRACT TERMINATION Either party may terminate this contract because of the failure of the other party to perform its obligations under the Contract. COUNTY may terminate this contract for any reason upon fifteen (15) days notice to the CONTRACTOR. COUNTY shall pay CONTRACTOR for work performed through the date of termination. ADS Contract September 15, 2010 Page 1 of 11 date of termination. Section 7. AUTHORIZATION OF WORK ASSIGNMENTS 7.1 Additional authorizations may contain additional instructions or provisions specific to the authorized work for the purpose of clarifying certain aspects of this Agreement pertinent to the work to be undertaken. Such supplemental instruction or provisions shall not be construed as a modification of this Agreement. Authorizations shall be dated and serially numbered. 7.2 The CONTRACTOR shall not assign, sublet, sub -contract or transfer any rights under or interest in (including, but not without limitations, moneys that may become due or moneys that are due) this agreement or subsequent Work Assignment without the written consent of the COUNTY, except to the extent that any assignment, subletting, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this agreement. Section 8. NOTICES All notices, requests and authorizations provided for herein shall be in a signed document and shall be hand delivered, or mailed, certified / registered / return receipt requested, or sent by courier service with a signed receipt, to the addresses as follows: To the COUNTY: Christine Hurley, Division Director MonroeCounty Growth Management Division 2798 Overseas Highway, Suite 410 Marathon, Florida33050 Roman Gastesi, CountyAdministrator 1100 Simonton Street, Suite 205 Key West, Florida 33040 To the CONTRACTOR: Melody Buell Advanced Data Solutions, Inc. 141 Scarlet Boulevard, Suite A Oldsmar, FL 34677 or addressed to either party at such other addresses as such party shall hereinafter furnish to the other party in writing. Each such notice, request, or authorization shall be deemed to have been duly given when so delivered, or, if mailed, when deposited in the mails, registered, postage paid. Section 9. RECORDS CONTRACTOR shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the agreement and for five years following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that moneys paid to CONTRACTOR pursuant to this ADS Contract September 15, 2010 Page 2 of 11 Agreement were spent for purposes not authorized by this Agreement, the CONTRACTOR shall repay the moneys together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to CONTRACTOR. Section 10. EMPLOYEES SUBJECT TO COUNTY ORDINANCE NOS. 010 AND 020-1990 The CONTRACTOR warrants that it has not employed, retained or otherwise had act on its behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 020-1990. For breach or violation of this provision the COUNTY may, in its discretion, terminate this agreement without liability and may also, In its discretion, deduct from the agreement or purchase price, or otherwise recover the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee. Section 11. CONVICTED VENDOR A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not perform work as a CONTRACTOR, supplier, subcontractor, or CONTRACTOR under contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 of the Florida Statutes, for the Category two for a period of 36 months from the date of being placed on the convicted vendor list. Section 12. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the COUNTY and CONTRACTOR agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. Both parties specifically waive their right to a trial by jury. This Agreement is not subject to arbitration. Section 13. SEVERABILITY If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and CONTRACTOR agree to reform the Agreement to replace any stricken provision with a valid provision ADS Contract September 15, 2010 Page 3 of 11 that comes as close as possible to the intent of the stricken provision. Section 14. ATTORNEYS FEES AND COSTS The COUNTY and CONTRACTOR agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket \expenses, as an award against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Section 15. BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the COUNTY and CONTRACTOR and their respective legal representatives, successors, and assigns. Section 16. AUTHORITY Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. Section 17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS COUNTY and CONTRACTOR agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. Section 18. COOPERATION In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, COUNTY and CONTRACTOR agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. COUNTY and CONTRACTOR specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. Section 19. NONDISCRIMINATION COUNTY and CONTRACTOR agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. COUNTY or CONTRACTOR agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: Title VII of the Civil Rights Act of 1 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; Title IX of the Education Amendment of ADS Contract September 15, 2010 Page 4 of 11 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of age; The Drug Abuse Office and Treatment Act of 1972 (PL 92�255), as amended, relating to nondiscrimination on the basis of drug abuse; The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee- 3), as amended, relating to confidentiality of alcohol and drug abuse patent records; Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Section 20. COVENANT OF NO INTEREST COUNTY and CONTRACTOR covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. Section 21. CODE OF ETHICS COUNTY agrees that officers and employees of the COUNTY recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. Section 22. NO SOLICITATION/PAYMENT The COUNTY and CONTRACTOR warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the CONTRACTOR agrees that the COUNTYshall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. Section 23. PUBLIC ACCESS The COUNTY and CONTRACTOR shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY and CONTRACTORin conjunction with this Agreement; and the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONTRACTOR. ADS Contract September 15, 2010 Page 5 of 11 Section 24. NON -WAIVER OF IMMUNITY Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the COUNTY and the CONTRACTOR in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the COUNTY be required to contain any provision for waiver. Section 25. PRIVILEGES AND IMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the COUNTY, when performing their respective functions under this Agreement within the territorial limits of the COUNTY shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the COUNTY. Section 26. LEGAL OBLIGATIONS AND RESPONSIBILITIES Non -Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida constitution, state statute, and case law. Section 27. NON -RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and the CONTRACTOR agree that neither the COUNTY nor the CONTRACTOR 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 Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement Section 28. ATTESTATIONS CONTRACTOR agrees to execute such documents as the COUNTY may reasonably require, including a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. Section 29. NO PERSONAL LIABILITY 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 Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. ADS Contract September 15, 2010 Page 6 of 11 Section 30. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Section 31. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. Section 32. INSURANCE POLICIES 32.1 General Insurance Requirements for Contractors and Subcontractors As a pre -requisite of the work governed, or the goods supplied under this contract (including the pre - staging of personnel and material), the CONTRACTOR shall obtain, at his/her own expense, insurance as specified in any attached schedules, which are made part of this contract. The CONTRACTOR will ensure that the insurance obtained will extend protection to all Subcontractors engaged by the CONTRACTOR. As an alternative, the CONTRACTOR may require all Subcontractors to obtain insurance consistent with the attached schedules. The CONTRACTOR will not be permitted to commence work governed by this contract (including pre - staging of personnel and material) until satisfactory evidence of the required insurance has been fumished to the COUNTY as specified below. Delays in the commencement of work, resulting from the failure of the CONTRACTOR to provide satisfactory evidence of the required insurance, shall not extend deadlines specified in this contract and any penalties and failture to perform assessments shall be imposed as if the work commenced on the specified date and time, except for the CONTRACTOR's failure to provide satisfactory evidence. The CONTRACTOR shall maintain the required insurance throughout the entire term of this contract and any extensions specified in the attached schedules. Failure to comply with this provision may result in the immediate suspension of all work until the required insurance has been reinstated or replaced. Delays in the completion of work resulting from the failure of the CONTRACTOR to maintain the requird insurance shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work had not been suspended, except for the CONTRACTOR's failure to maintain the required insurance. The CONTRACTOR shall provide, to the COUNTY, as satisfactory evidence of the required insurance, either: Certificate of Insurance or A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. ADS Contract September 15, 2010 Page 7 of 11 All insurance policies must specify that they are not subject to cancellation, non -renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and/or approval of the Contractor's insurance shall not be construed as relieving the Contractor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of CountyCommissioners, its employees and officials will be included as "Additional Insured" on all policies, except for Workers' Compensation. 32.2 INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN COUNTY AND CONTRACTOR Prior to the commencement of work governed by this contract, the CONTRACTOR shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: • Premises Operations • Bodily Injury Liability • Expanded Definition of Property Damage The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. The Monroe County Board of CountyCommissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. 32.3 VEHICLE LIABILITY INSURANCE REQUIREMENTS Recognizing that the work governed by this contract requires the use of vehicles, the CONTRACTOR, prior to the commencement of work, shall obtain Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, liability coverage for: • Owned, Non -Owned, and Hired Vehicles The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) ADS Contract September 15, 2010 Page 8 of 11 If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage The Monroe County Board of CountyCommissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. 32.4 WORKERS' COMPENSATION INSURANCE REQUIREMENTS Prior to commencement of work governed by this contract, the CONTRACTOR shall have proof of Workers' Compensation Insurance with limits sufficient to respond to the applicable state statutes. In addition, the CONTRACTOR shall obtain Employers' Liability Insurance with limits of not less than: $100,000 Bodily Injury by Accident $500,000 Bodily Injury by Disease, policy limits $100,000 Bodily Injury by Disease, each employee Coverage shall be maintained throughout the entire term of the contract. Coverage shall be provided by a company or companies authorized to transact business in the state of Florida. If the CONTRACTOR has been approved by the Florida's Department of Labor as an authorized self - insurer, the COUNTY shall recognize and honor the CONTRACTOR's status. The CONTRACTOR may be required to submit a Letter of Authorization issued by the Department of Labor and a Certificate of Insurance, providing details on the CONTRACTOR' Excess Insurance Program. If the CONTRACTOR participates in a self-insurance fund, a Certificate of Insurance will be required. In addition, the CONTRACTOR may be required to submit updated financial statements from the fund upon request from the County. Section 33. INDEMNIFICATION Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, the CONTRACTOR covenants and agrees that he shall defend, indemnify and hold the COUNTY and the COUNTY's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of CONTRACTOR or any of its employees, agents, contractors in any tier or other invitees during the term of this Agreement, (B) the negligence or willful misconduct of CONTRACTOR or any of its employees, agents, contractors in any tier or other invitees, or (C) CONTRACTOR'S default in respect of any of the obligations that it undertakes under the terms of this Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or negligent acts in part or omissions of the COUNTY or any of its employees, agents, contractors or invitees (other than CONTRACTOR). Insofar as the claims, actions, causes of action, ADS Contract September 15, 2010 Page 9 of 11 litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this Agreement, this section will survive the expiration of the term of this Agreement or any earlier termination of this Agreement. In the event the completion of the project (including the work of others) is delayed or suspended as a result of the Contractor's failure to purchase or maintain the required insurance, the Contractor shall indemnify the County from any and all increased expenses resulting from such delay. The first ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for above. Section 34. INDEPENDENT CONTRACTOR At all times and for all purposes hereunder, the CONTRACTOR is an independent contractor and not an employee of the Board of County Commissioners. No statement contained in this agreement shall be construed so as to find the CONTRACTOR or any of his/her employees, contractors, servants or agents to be employees of the Board of County Commissioners for MonroeCounty. As an independent contractor the CONTRACTOR shall provide independent, professional judgment and comply with all federal, state, and local statutes, ordinances, rules and regulations applicable to the services to be provided. The CONTRACTOR shall be responsible for the completeness and accuracy of its work, plan, supporting data, and other documents prepared or compiled under its obligation for this project, and shall correct at its own expense all significant errors or omissions therein which may be disclosed. The cost of the work necessary to correct those errors attributable to the CONTRACTOR and any damage incurred by the COUNTY as a result of additional costs caused by such errors shall be chargeable to the CONTRACTOR. This provision shall not apply to any maps, official records, contracts, or other data that may be provided by the COUNTY or other public or semi-public agencies. Section 35. DELAY The CONTRACTOR agrees that no charges or claims for damages shall be made by it for any delays or hindrances attributable to the COUNTY during the progress of any portion of the services specified in this contract. If possible, such delays or hindrances, if any, shall be compensated for by the COUNTY by an extension of time for a reasonable period for the CONTRACTOR to complete the work schedule. Such an agreement shall be made between the parties based on funding availability. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the day of 20 MONROE COUNTY (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By By Deputy Clerk Mayor/Chairman MONROE COUNTY ATTORNEY PROVkD AS TO FORM ADS Contract September 15, 2010 age 10 of 11 Date: (CORPORATE SEAL) ATTEST: By Or (1) Witness Print Name: (2) Print Name: STATE OF FLORIDA COUNTY OF ADVANCED DATA SOLUTIONS, INC. By Melody S. Buell, President The foregoing instrument was acknowledged before me this day of , 2010 by , as President of and for Advanced Data Solutions, Inc. who is [ ] personally known to me, or who [ ] has produced a drivers license as identification. SEAL Notary Public My commission expires: ADS Contract September 15, 2010 Page 11 of 11 EXHIBIT A SCOPE OF SERVICES Scanning and Digitizing of Monroe County Building Department Records SCOPE OF WORK Provide document scanning services for the Building Department of Monroe County; this job includes the pick-up of prepared documents, scanning, digitizing and indexing the information in a format compatible with our current system (Alchemy) and delivering the information to our offices in Marathon, Florida. for input into our archive system. This also includes Data Base Management. Data Base Management is defined as assisting with the management of problems with the Alchemy Archival System. Permit files contain 81/2 X 11 documents and full sized blue prints of various sizes. Compatible format may include OCR format so documents are searchable by text. (The remainder of this page intentionally left blank) EXHIBIT B PAYMENT RATES Scanning and Digitizing of Monroe County Building Department Records 1. Conversion of Letter/Legal/Double Letter sized Documents 2. Conversion of Large Format Blueprints 3. Disc Copies 4. Pick-up and Delivery 5. Database Management (Ongoing File, Folder, Index, Profile Organization Ongoing cumulative and Consecutive Discs Created within Alchemy Platform/ No Batch Import Required by County IT Professionals or Database Management) 6. Optional OCR $.0375 per Image $.35 per Image No Charge $50.00 per trip No Charge $.0125 per page Additional Past record and experience of firm on similar scanning and digitizing pro)ects Technical, educational and training experience of the assigned staff and any anticipated subcontracted staff. to start immediately upon notice Costs Project appproach reflects clear understanding of project needs and necessary activities. of RFP has a Monroe County business license and a physical business address within Monroe County. RFP Evaluation Sheet services based on per page scanning and digitizing costs, media costs and pick-up and delivery costs. Alterative pricing options may be submitted for consideration. 10 0 10 10 10 RFP Score sheet [Organization IScore IScore Score Score ITotal ADS 36 v7 sr- .2 o y Broward Microfilm yd. yo a, i �/ ,S-y CRM () Y3 21 yd �Ga WD USA 3o S /7 Vastec y y5 a s �-o 91 A;PMI (mTS 41 30 DRS 10y,? 4 S The Record Kee er /v G y �l a{ S 3 a 4 H 3 < S D v A 0 � � a a p m s m .. P_ _ A� C 3 Z H a z v Z 3 a v o o c c w Z rm ~ o v =a n H H H >> QH riD D IN -� CC=CC� _ m Z N m a3 0 �► f* o 0 0 .6" c� v O 79 � zc� o � O m � 3 o=T� 3 3 3 3 3 0Z-I 3 ri 7v -i rr1 m v $ y, 4W a cn 3 m A a v' C o Z 4 H 3 -j C*j $ C1 4 �, � o A g 0 a o 3 7Zv a °L o' 8 "mm 3 C7 Cl 8 N O A C ' Z A J C. M N N e. 8 8 8 8�a H 8 8 8o� a co Rv CERTIFICATE OF LIABILITY INSURANCE OP ID SR DATE(MMIDOIYYYY) -- ADVAN07 06 18 10 aRooucER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE rlisle Fields & Company, LLC HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Box 1027 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, ut` earwater FL 33758-7910 - - Phone:727-797-0441 Fax:727-725-3663 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A Northern Insurance Co an INSURER Owners Insurance Com an 32700 Advanced Data Solutions Inc. INSURERC: Houston Casualty Co an .Melody Buell CPA 141 Scarlet Blvd #A Oldsmar FL 34677 INSURER D: --- -- -- INSURER E: COVERAGES THE POLICIIiS OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS LTR NSR TYPE OF INSURANCE POLICY NUMBER DATE MMIDDIYYYY DATE MMIDDIYYYY LIMITS GENERALLIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY GET6RERTEU— — PREMISES jEa occurence) $ CLAIMS MADE OCCUR MED EXP (Any one person) S i -" -- PERSONAL 8ADV INJURY g - GENERAL AGGREGATE S MPOLICY LAGGREGATELIMITAPPLIESPER RODUCTS-COMPfOPAGG S PRO- LOC JECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT B X ANY AUTO 4795673300 04/04/10 04/04/11 (Eeacciderd) $ IOOOQOO ALL OWNED AUTOS - BODILY INJURY X SCHEDULED AUTOS (Per person) S X HIRED AUTOS - X NON -OWNED AUTOS BODILY INJURY (Per accident) S PROPERTY DAMAGE S ' (Per atcidenl) GARAGE LIABILITY AUTOONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC S AUTO ONLY: AGG $ ' EX6ESS I UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE g S DEDUCTIBLE S RETENTION S - WORKERS COMPENSATION 9i AND EMPLOYERS' LIABILITY X TORY LIMITS ER A :ANY PROpRIETOR/PARTNERfEXECUTIVr WC0349783300 02/21/10 02/21/11 E.L. EACH ACCIDENT g IQQQQQ OFFICERlMEMBER EXCLUDED? LJ (MendatotyinNH) EL DISEASE - EA EMPLOYEt2500 0 If yes, describe under SPECIAL PROVISIONS below EL. DISEASE - POLICY LIMITQ OTHER C Professional Liab H70912654 06/02/10 06/02/11 Occurence00 Deduct DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT f SPECIAL PROVISIONS Scheduled veh: 2002 HOND ACCORD EX IHGCG56642AO17688, 2006 Ford Ecomoline 1FTNE24W06DA70794 CERTIFICATE HOLDER County of Monroe Board of County Commissioners Risk Management 1100 Simonton St. Key West _FL 33040 COUNTMO CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIO DATE TIIEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. 01 ACORD 25 (2009101) © 19 -2 4 The ACORD name and logo are registered marks of ACORD WE MONROE COUNTY FLORIDA Response to Request for Proposal: RFP-GMD-175-190-2010-PUR/CV Proposal - Scan and Digitize Building Department Permit Records Respondent's Contact Information: r ;J ., Advanced Data Solutions, Inc. 141 Scarlet Boulevard, Suite A Oldsmar, Florida 34677 813.855.3545 www.adsus.net Contact Person: Melody S. Buell, President mbuell _adsus.net OF J I Advanced Data Solutions, Inc. June 22, 2010 Monroe County Purchasing Office 1100 Simonton Street Key West, Florida 33040 Dear Selection Committee: 141 Scarlet Blvd, Suite A Oldsmar, Florida 34677 Tel 813.855.3545 Fax 813.855.6575 www.adsus.net Advanced Data Solutions, Inc. (ADS) is pleased to submit this Request for Proposal to provide digitizing services for Monroe County Florida. If selected as your solutions provider, we stand ready to immediately perform the requirements of this contract. As an experienced solutions provider of records management solutions, ADS has developed a reputation for reliability and dependability in meeting short deadlines and providing top quality services to Florida Municipal Government, specifically within Growth Management. We are the only specialized Document Imaging Company on State Contract. We are certified as a WMBE and Small Business with the State of Florida, Hillsborough County and the City of Tampa. With a focus on Florida Government, ADS has provided electronic document management solutions to countless entities with documentation identical to that described in this proposal. This is what we do and who we are. We have worked with y countless government agencies completing huge conversion projects, microfilm / microfiche conversion, system implementations and records management needs. Our service bureau operates three daily shifts of production. We handle the outsourcing requirements for over 100 Florida Cities, Counties & Agencies. We recommend the Committee perform a site visit to observe our standards which validate our experience and strength as your service leader. Our primary focus in the service bureau is on the conversion of standard paper and large -format drawings to digital images. We also convert of millions of microfilm & microfiche images to digital format. Because of our extensive work within the service bureau division, we are uniquely qualified to provide the services required by the Committee offering a breadth of knowledge not possessed by companies focused mostly on software installations. In addition, we have the strongest expertise within the Growth Management area of document imaging in the State of Florida. We don't offer voicemail, we offer people resources instead. Contact our office any time, day or night, to speak to a person who will be glad to offer personal assistance. Our commitment to client success remains at the forefront of our strategic purpose. We enjoy harmonious and mutually beneficial working relationships with our existing clients and look forward to continuing the same with Monroe County. Kin t re ards, el dy S ell, I ent Advanced Data Solutions, Inc. Table of Contents COVER LETTER TAB 1 GENERAL INFORMATION TAB 2 EVALUATION CRITERIA TAB 3 LITIGATION TAB 4 COUNTY FORMS AND LICENSES TAB 1 - GENERAL INFORMATION I. HISTORY OF THE FIRM II. OFFICERS AND DIRECTORS III. SUBCONTRACTORS IV. OFFICE LOCATIONS HISTORY OF THE FIRM Advanced Data Solutions, Inc. (ADS) incorporated during March 1999 to perform outsourced document imaging services in the State of Florida. Our primary business purpose began and remains as a leading outsource provider to Growth Management offices within the state of Florida. During 1999, most organizations' technology resources were focused on Y2K initiatives. At such time, digital paperless technology was in its infancy. As this technology grew and evolved, so did ADS. Through the evolution of Document Imaging Systems, Services and Workflow, we evolved as one of the industry's leaders in Florida. With a focus on City and County Government, ADS has provided electronic document management solutions to countless entities with documentation similar (if not identical) to that described in this proposal. Our focus on Municipal / City Government typically includes Growth Management / Building Departments, but also includes Planning & Zoning, Engineering, City Clerk, Finance, and Police Department records management. This is what we do and who we are. We have worked directly with countless City and County Information Technology Departments completing huge back -file conversion projects, microfilm/microfiche conversion, web hosting, system implementations and on -going records management needs. We assume both large and small projects and all customers are treated with the same amount of importance. Our technical staff works directly out of our owner -occupied Oldsmar office to serve as the implementation team and point of contact for Monroe County. ADS main service bureau is headquartered at this facility where we run three shifts, seven days per week. Out of this facility, we handle the outsourcing requirements for over 100 Florida Cities, Counties & Agencies. No outsource services have ever been performed out of the State of Florida. ADS also utilizes office space in Doral, Florida within the premises of International Data Consultants, Inc. (IDC). ADS has worked with IDC (also on State Contract) for years for the support and implementation of Document Imaging Systems throughout the state of Florida. Our headcount ranges between 35 and 60 depending on current project requirements. Many of our employees have been with the company for years and our retention rate is high. We work in a strong team environment both internally and externally always inclusive of client project team personnel. We believe these relationships are directly responsible for the success we have with each and every conversion project. It's about the relationship. Our primary focus in the service bureau is on the conversion of standard paper, large -format drawings and Microfilm to digital images (primarily for Florida Municipal Government). Because of our extensive work within the service bureau, we are uniquely qualified to provide the services required by the County offering a breadth of knowledge not possessed by companies focused mostly on software installations. In addition, we have the strongest expertise within the Growth Management and other municipal areas of document imaging within the State of Florida. We strongly recommend Monroe County schedule a site visit to observe our facility. What you will find is a fully operational service bureau scanning hundreds of thousands microfilm and small/large format documents & drawings for Cities and Counties in close proximity to MC. Quality control and organization will also be evident as your team members meet various members of our staff. It will be very clear that our scan operators are experienced and possess a focus on quality. COMPANY GROWTH 1999: ADS was established with three employees working from a home/office. Software Companies and Platforms were researched. Feasibility studies were done to determine Florida Government as the most viable target market for our products and services. We obtained five clients and established our service bureau offering Outsourced Document Imaging Services. /�/n/•ic/r/'t (®/'nBl'1/7 4/unu,�,��-//7c'77! l)nt'lll7lc`N/ /n/crc,i/a�` /_c�e/c/rr 2000: ADS had 8 employees and our client base increased to dozens of Florida Cities and Counties. During this year, we obtained a State Contract outlining prices well below (typically 40%) other companies in our industry. We moved to our first commercial office space consisting of less than 1,000 square feet. 2001: Our headcount increased to 15 while our client base and industry reputation continued to grow. We became resellers of Alchemy Software and Fujitsu scanners establishing us as Premier Partners for both of these large companies. We relocated to a larger facility occupying nearly 2,000 square feet of office space. In addition, our service offerings increased to include microfilm and microfiche conversion services and Wide Format — Blueprint Scanning Services. 2002: During this year, we added another 5 employees running two shifts of production. A significant investment was made in equipment and software facilitating our growth rate now exceeding 200%. Plans were made for continued facilities growth; and, extensive training for both our production staff and technicians was sought. We became business partners with Liberty IMS and Contex/ldeal. A new focus towards Enterprise Document Management was achieved through the sale of workflow products and wide format scanners. 2003: In the early part of the year, we made our final move to a 10,000 Square Foot facility that we purchased to accommodate all foreseeable growth. Our throughput increased to 600 boxes per month. A shift in need was met as we began work for dozens of Growth Management departments statewide. Although we had many large clients, we retained our smaller ones that received the same service as was given years earlier. Advanced Data Solutions became Florida's Municipal Building and Growth Management Document Imaging Leader. 2004: The hurricane season of 2004 proved to be a learning experience for both ADS and our clients. Disaster Recovery Planning further strengthened our focus as a safe records haven for hundreds of clients. Amidst the threat of one storm after another, we grew to 40 employees and averaged a throughput of 500 boxes per month of production. We obtained a State Contract under new rules / stipulations that downsized State Contract companies from 650 to just over 100. The award was based on our Financial Strength, Client References and Industry Reputation. We were the only Company remaining specializing singularly on records management. 2005: ADS employed over 50 employees scanning over 60 tons of paper records. Our headcount continued to increase as did our volume. We added Web Hosting Services offering our clients reliable, internet access to their records in a secure environment. Our microfilm conversion services grew significantly as well. 2006: ADS had over 55 employees scanning over 75 tons of paper records. Our throughput increased to 800 boxes per month. During this year, we further developed our Web Hosting platform offering clients access to records through the internet within a safe and secure portal. We also established a sales and small production office in South Florida. 2007: ADS had over 65 employees scanning over 100 tons of paper records. Our throughput increased to 1,000 boxes per month. We maintained several sales people in addition to three shifts of production. 2008: ADS focused on new lines of business and technologies. Processes were streamlined and capital investments were made in new equipment and software. We became a reseller for Kodak and now offer a full line of their scanners and multi function devices. In response to a harsh economy, we downsized our headcount and solidified contracts and longstanding client relationships. We implemented strict fiscal policies ensuring our company would survive a downsized market. Advanced Data Solutions, Inc. survived the poor economy because of our policies, employees, experience and solid client relationships. We are now well positioned to respond to the current economical environment and competitive industry pricing. 2009: ADS maintained our employee headcount and solid contract base. We established relationships with national EMR vendors and began cultivation and specialization within the Medical sector. In addition, we purchased significant Microfilm and Microfiche conversion equipment to our inventory list and established that line of service as a separate division of the company. Such equipment was used primarily for the conversion of hundreds of thousands of microfilm / microfiche images within again focused primarily in Growth Management and Building departments. \ 0t)(71/11ell/ hntl t4hl.i; Leader REVENUE GROWTH Advanced Data Solutions, Inc. is a privately held company (S Corp) that does not typically reveal Revenue amounts in public offering. The chart below exhibits our revenue in annual increments. ADS Revenue Growth 1999 - 2009 Additional Facts: 10 3 x • We scan over 100 tons of paper records to digital format annually. • We don't outsource our Outsourcing! • We own ALL our equipment and do not subcontract services. • We maintain a perfect credit score earning the maximum amount of points during State Contract review and recertification. • We equally care about our small and large clients. • We believe in personal contact, not voicemail. • We are certified WMBE company with the State of Florida, City of Tampa and Hillsborough County. • We appreciate the hard work and efforts of our employees. /-I(o-it lu'.% ( ;rot I1h Ihurrri!rmrrrl l)u,•rrmrrrl lrrr r, irt,Ls L'alk/. OFFICERS OF THE FIRM Melody S. Buell, Active Working President 100% Shareholder There are no other officers of the firm. Phiridet's l remth thm,li=ewew ooc'(11RC11! 1111(mill" l c•c der 2010 FOR PROFIT CORPORATION ANNUAL REPORT FILED DOCUMENT# P99000027036 Jan 28, 2010 Entity Name: ADVANCED DATA SOLUTIONS, INC. Secretary of State current Principal Place of Business: New Principal Place of Business: 141 SCARLET BLVD SUITE A OLDSMAR, FL 34677 US Current Mailing Address: 141 SCARLET BLVD SUITE A OLDSMAR, FL 34677 US FEI Number: 59-3565568 FEI Number Applied For ( ) Name and Address of Current Registered Agent: BUELL, MELODY S 241 PINECREST DR. PALM HARBOR, FL 34683 US New Mailing Address: FEI Number Not Applicable ( ) Certificate of Status Desired ( ) Name and Address of New Registered Agent: The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida. SIGNATURE: Electronic Signature of Registered Agent Data Election Campaign Financing Trust Fund Contribution ( ), OFFICERS AND DIRECTORS: Title: D Name. BUELL, MELODY S dress: 241 PINECREST DR. y-St-Zip: 3 PALM HARBOR, FL 34683 I hereby certify that the information indicated on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as if made under oath; that I am an officer or director of the corporation or the receiver or trustee empowered to execute this report as required by Chapter 607, Florida Statutes; and that my name appears above, or on an attachment with all other like empowered. SIGNATURE: MELODY BUELL PRES 01r28/2010 Electronic Signature of Signing Officer or Director Date SUBCONTRACTORS Advanced Data Solutions, Inc. will not utilize subcontractors for the services provided within our response to this Request for Proposal /-7ur/,/u., (irmr//1 IImiflirelneid /!)<Yl ielI/ hne1,4(Nlg' /c',I,/,-/- OFFICE LOCATIONS Advanced Data Solutions, Inc. 141 Scarlet Boulevard Oldsmar, Florida 34677 813.855.3545 Operations Center and Service Bureau 13302 SW 128 Street Doral, FL 33186 305.298.8373 South Florida Sales Office / State Contract IT Consulting Services Office www.adsus.net /"(®f/'/(/(/ 1 (iroil //T 1/r/q�.re�c�rncvl/ /)ek'1 /!Nt'/T/ //Ilrl,L!/I,�i /c'c/c/('/' COST PROPOSAL $.0375 Per Image Conversion of Letter/Legal/Double Letter sized Documents $.35 Per Image Conversion of Large Format Blueprints $0.00 Disc Copies $50.00 Pick -Up & Delivery $0.00 Database Management Ongoing File, Folder, Index, Profile Organization Ongoing Cumulative and Consecutive Discs Created Within Alchemy Platform / No Batch Import Required by County IT Professionals or Database Management lm I. RECORD OF PERFORMANCE II. TECHNICAL EXPERIENCE III. SOFTWARE AND EQUIPMENT IV. PROJECT APPROACH V. TURN -AROUND TIMES t TAB 2 I. RECORD OF PERFORMANCE RECORD OF PERFORMANCE Our success in retaining and managing key knowledge also has a direct correlation with our focus on r industry specialization. We are Florida Government's Document Imaging leader. We have over 100 City, County and State Agency clients, most of which have similar needs. We are an owner -operated company that has restricted our service offerings to Florida Government for specific reasons. We want to remain an industry leader within our sector. We have a reputation within the State and feel confident serving any arm of Florida government within our industry expertise. We have technical resource relationships that span over a decade. We also have client relationships that span over a decade. We strongly believe in continuing professional education so that we are at the forefront of changing technology, practices and emerging issues. We work closely with the Florida Department of State to remain apprised of Florida Recordkeeping Requirements and forthcoming regulations. Because of our investment in both our people and our technology, we have been hugely successful in forging a reputation for reliability, competency and industry expertise. This has allowed us for smooth and effective continuation of service over the course of dozens of contracts. Often times, our work expands to provide services outside the scope of the contract. Within government, there are administrative tasks and layers of approval that make change orders difficult to obtain. In twelve years of business, we have successfully anticipated such work and have never had to increase original pricing obligations. It should be noted that we are the only document conversion company in Florida that has built our company on the municipal expertise specific to Growth Management Departments for City and County government. 1. State Contract Vendor For a Decade During our second year of business (fiscal year 2000), ADS obtained its first State Contract (SNAPS Agreement) from the Florida Department of Management Services (DMS). This contract served to drop industry Document Imaging Conversion rates from $.25 per page to a benchmark of $.09 per page and Wide Format rates from $4.00 to $1.00 per page. We immediately offered these lower rates to all Florida Municipal Government. During 2005, the DMS issued an extensive RFP for Information Technology which down -scaled state contract vendors from over 600 to approximately 125. Advanced Data Solutions was one of the vendors selected for contract due to our competitive pricing, industry expertise, credit rating and extensive municipal references. During 2009, another rigorous RFP was issued by the DMS and Advanced Data Solutions was once again awarded a State Contract. 2. Orange County / Document Imaging, Data Conversion & Custom Interface ADS was contracted for the conversion of millions of small / large format, microfilm and microfiche images initially as part of a basic conversion project for Growth Management. The project outlined specific volume milestones and required close teamwork with client project team members. After project commencement, multiple technical issues were encountered which required significant research, beta testing and custom programming. Changes were required beyond the general scope of work. Thousands of source files, pointer files, and index files had to be modified to interface with a third party software. Client software had a restriction that halted workflow and standard records management globally. Because of administrative hurdles, a contract modification was not an option. Conflict occurred when we could not meet our deadlines as projected. One of our Oracle programmers made an independent evaluation. We discussed not only our immediate problem, but also how the file restrictions related to every department and application within the organization. We absorbed the cost of the custom program and solved our problem within days. When the client reviewed our program, they purchased it using other funding sources as it was utilized for multiple departments eliminating layers of manual processes. We have since exceeded project milestones and are currently 45 days ahead of schedule. Horidu's Go'11-1h V�rnu,L�enrenr Document lrucr,Lirr� Leader ADS provided industry expertise beyond the scope of the contract which resulted in a Best of Breed solution that exceeded expectations and product timeline deliverables. Our industry expertise facilitated the immediate creation of a custom interface and program designed specifically for a client's unique operating environment. Over 1.5 Million Files and 15 Million indices were successfully implemented within this client's system within 90 days. It is important to note that ADS had worked with the County for years and lost our contract during a competitive re -bid process. The incumbent vendor worked with the County for close to a year before they were excused. As the next lowest bidder, we were reinstated and worked fervently to get the County back on track accomplishing its conversion goals. 3. City of Daytona Beach — Growth Management Division ADS implemented an Alchemy Document Imaging System within the City's Building and Growth Management areas to manage thousands of small / wide format paper and electronic records. The City had strict deadlines in terms of project implementation and training. During implementation, we determined we could extract Street File information from the existing Building Permit software to assist in our database set up, training and management. Within a day, we extracted over 8,000 Street File Addresses and related information establishing database folders and a solid starting point for end users. Without our industry expertise in growth management software, this task would have consumed hundreds of labor hours. The client was overly satisfied that we were able to finish the implementation in a timely manner. In addition, we were able to minimize their labor resources by automating the set-up and establishment of their database structure within the Alchemy platform venturing outside of the scope of the contract without incurring additional costs. 4. Attention to Detail ADS is alert to documents containing schematics for public buildings such as airports, schools, shopping malls and public utilities. We routinely recommend these documents be separated for inclusion in a homeland security database. For example, one of our Growth Management clients expanded their EDMS to include public web access to millions of converted records. During a quality control review, we discovered certain information included within the publicly available database resulting in certain homeland and HIPPA security violations. We made an "after hours" decision to pull the servers off-line creating a conflict situation with our client. The matter was immediately communicated along with a proposed solution the following morning. We immediately requested and obtained very specific, detailed lists of information which enabled us to design queries to extract all unauthorized information from the data pool. We employed staff in eight hour intervals to extract the data. The matter was resolved within 48 hours and separate, secure databases were established. The client was extremely satisfied and a problem situation avoided. Attention to detail cannot be emphasized enough by a records conversion company. We can site countless instances where we have identified misfiled items for our clients. This value-added expertise cannot be quantified in terms of dollars and cents. Through the years, we have saved our clients thousands of dollars and have recovered misfiled documents that would have otherwise been lost forever. During the document preparation stage of conversion for a Growth Management Department, ADS recognized one page as an un-cashed check for approximately $35,000. The check was discreetly returned to the client and processed immediately. During the scanning of Occupational Licenses, we noted social security numbers and drivers license copies on records that were intended for public web access. ADS immediately separated these records providing them to the client in a secure database reclassified for internal, authorized users only. During the preparation of accounts payable records, we noted miscellaneous pages containing aids patient information that had been misfiled. These records were sealed with security tape and secured immediately until after -hour client instructions could be obtained. Within several hours, our driver re - delivered these boxes to a Directors office for a 7am arrival time. During the prepping of Miscellaneous Building Permit Applications, we noted credit card numbers on documents that were intended for public web access. These records were separated and provided on to the client in a secure database reclassified for internal, authorized users only. l hwida's (om rh ooc ulnela lnrcr;ir{�, Lrcnler REFERENCES 1. City of Tampa Building Department Description: ADS has converted millions of microfilm/microfiche, large -format print and standard paper records to digital images for the City of Tampa Building Department and within the Alchemy Software Program. ADS currently hosts terabytes of data for the City within the Alchemy Web Platform. Contact: Nick D'Andrea Email: Nick. DAndrea(cDci. tamoa. fl. us Telephone: 813.274.3100 / Fax 813.259.1712 2. Orange County Florida Description: ADS has converted over a million small & wide format paper and microfilm records to digital images for the Growth Management departments within Orange County. We have also converted historical / delicate large format documents and those requiring image enhancement through grayscale and color throughput options. ADS has provided these images within the Alchemy Document Management System as well as in Flat File Format for the County's Hummingbird System. Contact: Aneta Duhigg Email: Aneta. Duhigg(docfl. net Telephone: 407.836.5873 3. City of Pompano Beach Florida Description: ADS has converted over a million large -format / blueprint, standard paper, microfilm and microfiche records to digital images for various departments within the City. All records are maintained within the City's Alchemy Software System. Contact: Jerry Sanzone Email: Jerome. Sanzoneecoobfl.com Telephone: 407.836.5873 4. City of New Port Richey Description: ADS has converted thousands of large -format / blueprint and standard paper records to digital images for various departments within the City. All records are maintained within the City's Alchemy Software System. Contact: Clark Jones Email: jonesacCa�citvofnewoortrichev.orq Telephone: 727.853.1251 5. Clay County Growth Management Description: ADS has converted thousands of large -format / blueprint and standard paper documents and Microfilm to digital images for the Growth Management Department of Clay County within the Alchemy Software System. Contact: Carol Waterrose / Carol.Waterrose(a)co. clay. fl. us Telephone: 904.284.6307 6. St. Johns River Water Management District Description: ADS converted hundreds of thousands of microfilm, large -format / blueprint and standard records to digital images for this Agency. Contact: Ima Bujak / ibujak@sjrwmd.com Telephone: 386.329.4204 l hnvclu'c (/r,ni ih I hmwu cment Doc wnell/ lumwhlin / "adel• 7. City of Cape Coral Building Department Description: ADS has converted thousands of large -format / blueprint and standard paper records to digital images for the City of Cape Coral Building Department. We worked closely with client team members to achieve firm production schedules, file requirements and quality control objectives. Contact: Manny Ratliff / MRatliff@capecoral.net Telephone: 239.242.3285 8. City of Daytona Beach Description: ADS converted thousands of wide format prints for inclusion within the City's Alchemy Document Management System installed within the Building Department. We worked closely with client team members to achieve firm production schedules, file requirements and quality control objectives. Contact: Glejuanda Davis Telephone: 352.593.2244 ADS can provide the County with DOZENS of other municipal references for which we have provided document conversion services within the Alchemy Software Platform over the last 12 years. We are the ONLY Document Imaging Company within Florida specializing specifically on Growth Management and providing conversion services consistently within the Alchemy Software Program for more than a decade. We have over a decade of experience working with the Alchemy Software Platform making us UNIQUELY qualified to serve clients utilizing this software as their primary records management tool. % hiridcl % (;roil /h Ilana elnew A)c ulnc ni IRHCl,4 ul ,,, / e,,,ler TAB 2 II. TECHNICAL EXPERIENCE TECHNICAL, EDUCATIONAL AND TRAINING EXPERIENCE As mentioned previously, Advanced Data Solutions is not only a reseller of the Alchemy Software Suite, but also a licensed Alchemy Pro Service Bureau. Our project team members have attended and passed technical and sales training courses specific to this platform. We have also attended training for Kodak, Fujitsu and Contex small and wide form scanner products. We have worked closely with the Florida Department of State Archives and Retention department in Tallahassee for over a decade keeping apprised of new developments related to electronic records conversion. We have developed Quality Control procedures throughout the years that have become benchmarks and standards for records conversion throughout Florida most specific to Growth Management. Most of our experience was gain "on the job" as this industry expanded from infancy in 2000 to maturity in 2010. Having converted millions of small and large format documents from countless building departments throughout Florida, we feel we are most qualified to continue serving the records conversion needs for Monroe County. /'If1-idt! S (irotI-III II,Imui'en1N11( /)ttt11/no1/ 1111a1`41Ig Leader Melody S. Buell Working President / Overall Project Manager Ms. Buell has over twenty-two years of experience managing projects & serves as a key project manager with the Company. She is a founder of ADS having direct involvement in all system installations & outsourced imaging directives. She is heavily involved in the database management and workflow of all client engagements. She has been involved in document imaging and the evolution of Florida Municipal Electronic Recordkeeping for eleven years. Prior to founding ADS, she was the Chief Financial Officer for a national Professional Employer Organization and multi -national Aeronautical Manufacturing Public Company in Pinellas County. Her responsibilities included the management and supervision of the finance and information technology departments. Previous to her private industry experience, she held various management positions with PricewaterhouseCoopers, LLP. As a Business Assurance Audit Manager, she managed the audit process for clients in the financial services and manufacturing industries. In addition, she worked in the firm's national office, developing advanced audit training materials used in local/national continuing professional education programs. She was a team leader for the training & implementation of the paperless audit workflow environment for the Southeastern United States. Due to the success of the project, the firm was able to reduce audit paper retention by approximately 95%. Education • BA Business Administration, Focus on Financial Accounting & Systems of Internal Controls, Emory University 1987 • Upper Level Graduate Courses at Various Financial Institutions toward MBA Certifications and Software Experience Certifications and Document Management: • Certified Public Accountant (strong focus on systems documentation) • Certified Document Imaging Architect (pending) • Kodak Capture Pro Imaging Products LibertyNet Suite of Document Management Products • Alchemy Suite of Document Management Products / High Level Training Certification • ScanOS / Widelmage Wide Format Software Capture • Microfilm / Microfiche (Quantum/ FastScan) Conversion Applications • High Speed Fujitsu / Kodak Production Scanners Document Imaging Experience Melody has been involved in countless government conversion projects including those included within the reference section of this proposal. She is involved in detailed and upper level project management of almost all projects performed by ADS. As such, she has worked on virtually every government project detailed within this RFP. Community Hurricane Disaster Relief Efforts: Hands on collection/ distribution of emergency supplies Metropolitan Ministries: Annual collection of over 1,500 pounds of food, children's toys, clothing & supplies. Ongoing volunteer activities including Gulf Oil Spill. /•/t,ri,ItI's (rrmI/h II,IIIt{g"11Icnl /)oc'lllllc'171 /111tILllIg /rut/cr Kay McNeil Project Manager - Media Initiative (Film & Fiche) ( As an ADS Project Managerand Overall Team Leader of imaging implementations and large microfilm, standard document and wide format conversion projects, Kay is responsible for ensuring quality scanning /enhancement of images and detailed accuracy of index and output data. Additional responsibilities include on -site software training of multiple applications specific to client / engagement requirements. Her scope of responsibility includes ensuring adherence to deadlines, developing and enforcing production schedules, and maximizing workflow and efficiency. She is involved with client coordination of pick-up, redelivery and destruction of documents, if applicable. She is familiar with Department of State Record Retention and Destruction guidelines and often assists clients in the selection and completion of required forms for ultimate compliance with such guidelines. Kay works directly in day-to-day operations with both ADS staff & client representatives to ensure the timely production of work. Kay manages the 1"t shift of personnel at ADS starting her workday at 6 a.m. daily. She coordinates all 1st shift personnel according to job schedules and delivery requirements. Kay has been in data processing for over 25 years and has been with ADS for five years. She was previously Systems Analyst at Siemens -Nixdorf and a programmer Analyst with Southeastern Computer Corp. and Fotomat Corporation. Education • BME and BM from Central Methodist College, 1979 • MM from University of South Florida, 1980 Certifications and Document Management: • Kodak Capture Pro Imaging Products • Alchemy Suite of Document Management Products • Certified Document Imaging Architect (pending) ScanOS Wide Format Software Capture • Widelmage Wide Format Software Capture • Wicks and Wilson SCANfilm Conversion Hardware & Software • Microfilm Conversion Applications • High Speed Fujitsu Production Scanners • High Speed Kodak Production Scanners • Ideal / Contex Wide Format Scanners • QED Quality Assurance • YOURDON Systems Analysis and Design Document Imaging Experience Kay has been involved in countless conversion projects including those included within the reference section of this proposal. Other client projects include those outlined in the section below. Kay is involved in detailed and upper level project management of almost all projects performed by ADS. As such, she has worked on virtually every project detailed within the proposal. I-IfwitIt! ®(;!'nft'l!! .tilaml i{elne!!l Doci !Nr'!!t hyle/ /I(i( I L'tIdel, James Watt Computer Network / Systems Engineer/ Programmer Jim Watt has 16 years in computer design and support and has been with ADS for ten years. From small business to large corporate & government, Mr. Waft has been involved in all aspects of design, implementing, and supporting computer systems and networks. Mr. Waft has a strong background in systems design, support and Internet technologies. He was the IT Director for The Connelly Insurance Agency (CIG). With CIG, he successfully implemented a vast array of automation projects which included an agency -wide document management system, network fax solution and Citrix Metaframe remote access system. Prior to CIG, he was an Operations Manager and LAN Administrator for Danka Industries in charge of the entire Digital Danka LAN/WAN, a network which connected Digital Danka Labs world-wide with locations in New York, Dallas, Los Angeles, St Petersburg and London. Certifications: • Microsoft MCSE+I (Microsoft Certified Systems Engineer + Internet) • Microsoft MCT (Microsoft Certified Trainer) • CCA (Citrix Certified Administrator) • CCNA (Cisco Certified Network Associate) • CNE (Novell Certified Netware Engineer) • CSSA (Certified SonicWALL Security Administrator) • Alchemy Document Management Administrator / Obtained High Level Training Certification • ACTC (Apple Certified Technical Coordinator) • Nortel Phone systems Operating Systems: • Windows 2008/2003, Windows VISTA/XP/2000/NT/98/95 • Novell Netware • Apple OS/9 and X (Tiger & Leopard) Application Software: QuickBooks, Microsoft Outlook, Exchange Server (2007 - 5.5), Microsoft IIS (ver 3-7), Microsoft SQL Server 2000/2005/2008, Microsoft ISA2004/Proxy, Microsoft SMS/SUS, Micprsoft CRM 1.2/3/4, Autocad, Autodesk 3D studio, Pagemaker, Photoshop, Adobe Illustrator, Microsoft Project, Microsoft Visio, Microsoft Office Suite, Alchemy Document Management Software Suite, Liberty Information Management, Shelby Systems CMS Software, ACS CMS Software, Louth Automation Servers, Keystroke POS, Timberline Gold & Precision, Act!, Oracle Contract Manager, Nortel Phone Systems Networking: Fiber, DS3, T1, Bonded TVs, TCP/IP, Routing, Servers, Application Development, CISCO, TCP/IP in advanced environments, DHCP, WINS, SNMP, BGP4, RIP, EIGRP, Winsock, Win 3.x, Novell, Netware V4, NWLITE, Personal Netware, Microsoft Net, Including Windows for Workgroups, WinNT, Netware IPX, Appletalk, Windows, Checkpoint Firewall, 802.3, Wireless 802.11a/b/g /'julyclU 0 from lil �IUB1[I,f; C'11/t'B11 I)ocul1ew hna.i�/11,5�' Leader Paul Svoboda Pick -Up and Delivery, Scheduling and Client Coordination Paul manages daily, weekly and monthly pick-up of client records throughout Florida. He is critical to the workflow process by communicating client deadlines and scheduling changes to our project managers. Clients rely on the direct and after hour access to Paul in making quick scheduling adjustments in an ever changing production environment. Paul also manages the workflow from a warehouse management perspective. From document pick-up, departmental rotation, re -delivery or ultimate destruction, Paul maintains control logs and Inventory records to accurately track all records through all phases of production. He has been involved in warehouse production for twenty years and has been with ADS for six years. HOMELAND SECURITY Paul has undergone and passed FDLE certification for delivery to Florida Government and other facilities falling under scrutiny by US Home Security. /.Iu/-it ItI S (N°){t/h IItItIL/,4(C'lIW/It I)(IL'IItIIC11/ III ICIQ'It1;14 1L'(IthT TAB 2 III. SOFTWARE AND EQUIPMENT Advanced Data Solutions has been a licensed Alchemy service bureau since 1999. On May 6, 2004, ADS purchased lifetime Alchemy Pro licenses from the software developer IMR. Service Bureaus scanning within the Alchemy platform and reselling their services within such program MUST be licensed by OpenText Corporation, the new owner of all Alchemy products. ADS is a licensed reseller of Alchemy Products with OpenText Corporation and maintains all . current licensing with this Corporation. Equipment List Small & Wide Format Paper Scanning / Microfilm & Microfiche Digital Conversion -3 Qty 4 - Contex Crystal 40 Plus Wide Format Scanners — Black & White (B&W), Grayscale & Color Scanning Capabilities / ScanOS Software Qty 1 — KIP 40 Plus Wide Format Scanner — B&W, Grayscale & Color Scanning Capabilities — ScanClient Software Qty 1 — Kodak i660 — 120 Page Per Minute (PPM) Scanner / 240 Pages Per Minute (PPM) Duplex Capability / B&W & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size — Alchemy Pro Capture Software / Kodak CapturePro Software Qty 1 — Kodak i730 — 120 Page Per Minute (PPM) Scanner / 240 Pages Per Minute (PPM) Duplex Capability / B&W & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size — Alchemy Pro Capture Software / Kodak CapturePro Software Qty 2 — Kodak i1440 — 60 PPM Scanner / 120 PPM Duplex Capability / B&W & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size - Alchemy Pro Capture Software / Kodak CapturePro Software Qty 1 — Fujitsu M4099D — 90 PPM Scanner / 180 PPM Duplex Capability / B&W & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size - Alchemy Pro Capture Software City 1 — Fujitsu F15900C — 120 PPM Scanner / B&W, Grayscale and Color Capabilities / Scans Up to Leger (11" x 17") Size - Alchemy Pro Capture Software Qty 1 — F16670A — 90 PPM Scanner / B&W and Grayscale Capabilities / Scans Up to Leger (11" x 17") Size - Alchemy Pro Capture Software Qty 6 — Fujitsu FI-5660C / 5750 — 57 PPM Scanner / 114 PPM Duplex Capability / B&W, Color & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size - Alchemy Pro Capture Software Qty 1 — Fujitsu FI-4860C — 60 PPM Scanner / 120 PPM Duplex Capability / B&W, Color & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size - Alchemy Pro Capture Software Qty 5 - M4097D — IPC (Image Enhancement Controls) — 50 PPM Scanner / 100 PPM Duplex Capability / B&W & Grayscale Scanning Capabilities / Scans Up to Ledger (11" x 17") Size - Alchemy Pro Capture Software Qty 6 — M4120C — 25 PPM Scanner / 50 PPM Duplex Capability / B&W, Color & Grayscale Scanning Capabilities / Scans Up to Legal (8.5" x 14") Size - Alchemy Pro Capture Software Qty 1 - Wicks & Wilson - 4100 Film Scanner / B&W and Grayscale Capabilities / Scans 35mm and 16mm roll film / Group IV tiff images are created automatically during conversion. Other file options can be chosen prior to media conversion. — RollFilm Software Qty 1 - Mekel Mach V Microfilm Scanner — Quantum Scan Software / B&W and Grayscale Capabilities / Scans 35mm and 16mm roll film / Group IV tiff images and/or Jpeg files are created automatically during conversion. Other file options can be chosen prior to media conversion. 100% Image Capture - Process Software Qty 1 -Mekel Mach VII Microfiche Scanner — / B&W and Grayscale Capabilities / Scans 35mm, 16mm, Comm Fiche, Jacketed and unjacketed / Group IV tiff images and/or Jpeg files are created automatically during conversion. Other file options can be chosen prior to media conversion. 100% Image Capture - FastFiche Processing Software Florida s Growth Management Document Imaging Leader TAB 2 IV. PROJECT APPROACH PROJECT APPROACH Our experience and focus on teamwork is the core of our approach to Document Management. Our technical staff works directly out of our operations office to serve as the implementation team and point of contact for Monroe County (MC) where we run three shifts, seven days per week. We handle the outsourcing requirements for over 100 Florida Cities, Counties & Agencies. Our headcount ranges between 25 and 65 depending on current project requirements. Most of our employees have been with the company for years and our retention rate is high. We work in a strong team environment both internally and externally always inclusive of client project team personnel. We believe these relationships are directly responsible for the success we have with each and every conversion project. It's about the relationship. We strongly recommend MC schedule a site visit to study and observe our facility. We run a fully operational service bureau scanning hundreds of thousands of large format drawings for Florida Cities and Counties. Quality control and organization is evident through observance of various members of our staff. Our scan operators are experienced and diligent. Our approach is based on experience and teamwork. Our primary focus in the service bureau is on the conversion of standard paper, large -format drawings, microfilm / microfiche to digital images. Because of our expertise, we are uniquely qualified to provide the services required by MC offering a breadth of knowledge not possessed by companies focused mostly on software installations or "one-time" imaging projects. At ADS, we want to retain our client relationships well after project completion, even if only to service small ongoing work requirements. Orientation and Kick -Off Meeting Much of how we plan a project is based on prior experience, information gathering and an initial orientation from a "kick-off' meeting when our professional relationship begins. We ask a lot of questions and offer suggestions based on our experience with similar projects. Information is exchanged which includes contact names, phone numbers and email addresses of all ADS team members to be involved in your project. Project timelines and budgetary considerations are also discussed. If the County has a certain amount budgeted for a project annually, we will consider this in terms of monthly production. If the County can only release, process or review a certain amount of records, we will also consider this in terms of monthly pick-ups and production. We process building and engineering records EVERY day in our operation center. We can easily look at a box of records or even a room of records and give fairly accurate counts of small and large format documents. We can quickly view your storage areas or file room to ensure initial estimates are accurate. Server space considerations are discussed during this meeting as well. We can provide an estimate of file space required for your specific project or series of projects. With the Department of State's 300dpi scanning requirement, storage space is significantly higher than years past, especially in regards to microfilm conversion. We converted all of the City of Tampa's microfilm for the Construction Services / Building department which resulted in a terabyte of space required. The paper scanning of large format drawings also requires significant server space. These are all matters to discuss at project inception. If there area any sensitive records, we want to know. Often times, building departments have documents which contain taxpayer drivers license and credit card numbers sometimes included in fax applications and other documentation. Occupational licenses often contain social security numbers and drivers' license numbers as well. Public facilities, such as airports and municipal buildings have homeland security issues. If you need Aerial or Section / Township / Range maps digitized, they may be delicate and possibly historical. They may contain color text or graphics adding to the integrity of the information. These records will be handled differently. We deal with such matters everyday. Our staff is alert to records which have not been filed in the normal course of business. They are separated until client direction is obtained. These are just a few examples of benefits achieved by doing business with a company specializing in the project for which you are in need of service. Other discussion matters: FTP portal for record requests, pick-up and redelivery procedures, hours of operation, weekend rush projects, password considerations, document destruction and related Department of State guidelines, record re -filing requirements, embossed or raised seal requirements, any other special needs or matters. We are here to help in any way we can. Again, we want the relationship for years, not months. l Ynriclu s l irnuYll t/unugetnew Dncinnew In qi iln, / ea o ri m W t JD 1-, r. 0 .0 110 7a m 5 u 4 .4 X ILI H Ln Proof of Concept and Beta Testing We like to begin projects by processing a sample batch of records for your review. This "Proof of Concept or Beta Testing" phase helps to ensure we meet your specific project requirements and eliminate misunderstandings. During this phase, we process a small batch of your records and provide you with source files and related index data. We are then able to make any necessary modifications prior to project commencement. Once Proof of Concept is achieved, the project begins. Since MC is an ongoing client, this phase can be repeated or passed upon. Operational Overview Advanced Data Solutions, Inc. owns and operates from our 10,000 square foot facility in Oldsmar, Florida. There are no leases in place as all assets are owned. We have cargo vans which facilitate the pick-up and subsequent re -delivery of records to various state agencies and municipal clients. Work detail begins every weekday morning at 6:00 a.m. and concludes as late as 12 p.m. every weekday evening depending on deadlines and production schedule requirements. Weekend shifts are very common and vary depending on scheduling deadlines. In the past, we have run 24 hour shifts to ensure the successful and timely completion of massive imaging contracts. Departmental Focus / Quality Control Pick -Up and Delivery, Document Preparation, Document Scanning, Wide Format Scanning, Indexing and Quality Control / Review are separate departments within ADS' operational structure. Within each of these departments are individual managers and project managers which control the workflow of all active projects. Various control mechanisms are in place within all phases of production which quickly facilitate the identification and remedy to any production issues. Our trained staff has been with our company and within the industry for years. Control Logs and other workflow mechanisms are maintained for each of these functions which serve to monitor all issues encountered throughout the lifecycle of each project. This includes, but is not limited to, record discrepancies, legibility issues, non-standard document and index matters, timeline issues, equipment requirements, staffing requirements and training requirements. Transport of Client Files Our warehouse and delivery manager, Paul Svoboda, will pick up and deliver records from MC based on specified amounts determined beforehand. Small and large pick-ups can be made depending on specific needs. Pick-up and delivery schedules are typically flexible and forever changing based on client demands. For large conversion projects, we typically slate monthly or bi-weekly record pick-ups in batches of 50 —125 boxes. Emergency pick-up or redeliveries will not be a problem. The point of contact for MC has been provided both our office phone number and our driver's cell phone number so that direct contact is always available. Our cargo vans can facilitate up to 125 boxes. Our vans are serviced frequently, possess locks on all points of entry and carry fire extinguishers readily available. We can provide boxes or containers for irregular documents and even packing services, if necessary. Our driver carries client specific control logs (included within this section) which detail records transported, dates and appropriate levels of sign -off. Upon pick up or delivery, independent counts and reconciliation will be made by both our driver and MC personnel. Any discrepancies identified will be resolved and all logs will be corrected at the time of discovery. /-11)1-h 1,r (;roillh 1hlm1iKe/llov Dewulnew %illclt 1171 IcadLr w ADVANCED DATA SOLUTIONS, INC. i Pick -Up and Delivery Confirmation Pick -Up Information Client / Division: Batch #: Box #s: Released By: Printed Name (Client Representative) Signature Received By: Printed Name (ADS Representative) Signature Re -Delivery Information Client / Division: Batch #: Box #s: Released By: Printed Name (ADS Representative) Signature Received By: Printed Name (Client Representative) Signature Media Transer. (DVD, CD -Rom, Hard Drive) Date: Date: Date: Date: 141 Scarlet Boulevard, Suite A Oldsmar, Florida 34677 727.638.5030 Sales 813.855.3545 Corporate www.adsus.net ADS / Monroe County Pick -Up Procedures: Plantation (Upper) / Marathon (Middle) / Key West (Lower) Offices _ r r _ - r r _ r r Advanced Data Solutions Conversion Center • ADS Van Identified Through Appropriate Lettering • FDLE Approved Driver — Paul Svoboda • ADS Driver Identified Through Company Uniform • Non -Stop Pick -Up and Re -Delivery • 3/4 Ton Cargo Van Fully Fueled Upon Arrival at Monroe County `j • Van Equipped with Functioning and Inspected Fire Extinguisher • Immediate Unload & Inventory Check at Point of Pick -Up and Re -Delivery • ADS Driver with the Company for Six Years Document Preparation As mentioned previously, document preparation is examined closely during the Beta stages of project inception. Often times, ADS absorbs the cost of client travel and funds the visit of client personnel to our service bureau in Oldsmar, Florida. During this visit, a focus on document preparation and project lifecycle is established and maintained. Document types are identified and many questions are answered. Solid relationships are established and this phase of production is exactly determined. Years of experience has taught us that this phase of production is critical to quality and adherence to deadlines. Documents must be organized in a consistent, user-friendly manner consistent with your current or desired filing system. Important and frequently used documents are often sorted towards the front of a file to create efficiencies for the end -user searching records after they are digitized. ADS has consistently worked with County Personnel in the past to develop controlled and careful document preparation procedures. This includes numerical logs for boxes, documents and large format drawings. We have provided the County with embossers and staple removers to assist in this process. In addition, County representatives have visited our facility to review our prepping, scanning, indexing and QC processes. Boxes are unloaded immediately when received at our warehouse in Oldsmar. The document preparation manager and driver quickly reconcile such records as they are received in the preparation staging area and phase of production of our Oldsmar facility. Control Logs are prepared by our Document Preparation Manager, MaryAnn Gallagher and Paul Svoboda, Warehouse and Delivery Manager. A Control Log is prepared for Document Preparation (N/A), Scanning (both large and small format) and Review. These logs are routed with client records through the entire lifecycle of each batch of records. Document and Print Counts are often performed as part of document preparation which aid and reinforce the integrity of our subsequent and final review. Such counts are included on logs or document control sheets, as necessary. Document prepping also consists of staple removal, repairs of rips or tears, reordering of documents and other necessary steps to insure the efficient and accurate scanning process. ADS has worked with the County for years to ensure consistent procedures such as these are employed. Monroe County's boxes include detailed control logs that relate to each batch of records. Our scanning staff will consistently refer to these logs to ensure completeness and accuracy. Discrepancies are recorded on such logs which are later examined by Review Staff and Client Project Team Members. Client control logs along with our control logs follow the records through various stages of production. Document Scanning It is important to recognize that all phases of production are extremely interactive which lead to the individual success of each department at ADS. Scan operators are experienced and familiar with each client project. Scan teams are always repetitive so that familiarity with client records is maintained. Our scan operators ask questions if anything looks different. They fully understand quality requirements. Regardless, the attribute of quality is determined during the hiring stage of staff determination. It's not about speed; it's about quality, then speed. Weekly meetings are held with project team members, to include scan operators which serve to outline specific procedures, answer any questions and establish all protocol during phases of production. Scan operators observe EACH image, review all file thumbnails, establish file naming conventions, perform most deskewing operations and function as a productive and efficient team. Scan operators review large thumbnail images at the end of each scan and perform rescans, when necessary, at this stage. Image compression is established and closely monitored during the scanning phase of production. All scan machines are set prior to project inception. Often, specific equipment is assigned to particular projects ensuring settings are set, reviewed and maintained. Scan resolutions are also determined prior to scan commencement. State of Florida Record Retention Guidelines and Washington Administrative Code Standards both require scanning of black and white records at 300 dpi with higher resolution requirements for color, grayscale and engineering drawings. Llornlu'e (11-mr/11 i®c/ne(4(NONNl1/ 0(ucilinew,n]U,Lhl L w&,r Scan Control Logs are signed off according to specific requirements and scan labels are adhered to each and every box of client records. All labels correspond directly to control logs. Our scan operators are sharp and possess years of experience typically obtained with our company. They are trained to recognize anything unusual and bring any matters of concern to all project team members. Sample scan control logs have been included in this document. It is important to note that scan stickers and control logs are typically pink in color so that a manager or client personnel can easily look on a warehouse shelf and gauge a project within seconds. Batch control logs serve as the detailed support for workflow progress. The scan process for small and large format documents is performed in one scan room. As records must be separated according to size and system requirement, they must also be re -filed according to file commonality. Document scanners and Blueprint scanners constantly interact as records are not always sent in perfect order from a client site. Discrepancies are resolved on the floor as soon as discovered. Irreconcilable items are communicated to the client for quick resolve. In the case of Monroe County, discrepancies are always communicated to Mary Wingate who typically responds within minutes with a resolution. Large format prints are enhanced according to legibility standards and raised seals are embossed. Non-standard sizes are cropped and damaged or illegible prints are typically stamped as such during the scanning stage. Our Blueprint Scanners calibrate the machines routinely to ensure there are no stitching errors or lamp calibration issues. Top and bottom glass pass-thru's are cleaned routinely through each shift of production. Deskew and despeckle functions are performed at the scan level and as necessary. Most re -filing is performed by the scan operators (unless determined otherwise). Document Indexing Each document type received from MC will have pre -defined index data fields that will be used by both the Project Team leaders and Index staff. There will be two index personnel assigned to the MC in order to maintain record familiarity, consistent client and ADS communication and consistent data input. All index fields are subject to quality control processes specific to each client and document type. This state of QC is done by a separate QC reviewer to ensure independent review of accuracy. Output data is completely verified visually as well as through software verification. We employ approximately 5 FTE indexers. Our indexers are trained not only to accurately input data, but also to recognize unusual images and irregular client documents. If appropriate index pages are omitted, this is brought to the attention of all project team members. The document lifecycle is always on -going. Indexers review client requirements from defined logs established during the preliminary or beta stages of project inception. They also sign off on control logs which follow the document's lifecycle. At the end of each batch of records, summary screens are reviewed which quickly identify any discrepancies and provide a final check for the indexer prior to record sign -off. Often times, client control logs accompany boxes or batches of documents. Our index staff will refer to these logs to ensure completeness and accuracy throughout the lifecycle of each batch of records. Discrepancies would be recorded on such logs which are later examined by Review Staff and Client Project Team Members. Final Review (Index / Document) As one of our last phases of production, Index and Final review is considered equally critical to the previous phases described above. As each batch of records is somewhat unique, it is difficult to completely describe this process. Review is typically performed by 34 project team members. At ADS, we perform a complete review of client data. This includes the physical removal of EACH file from every box and making real comparisons to the images and data on the screen. This is particularly critical for records slated for destruction. Thumbnail and individual images are reviewed in the case of small format documents. ALL individual images are reviewed in the case of large format documents. Rescans are performed "real-time" during the review phase as well. Review is performed by the highest levels of ADS management. The qualifications of our reviewers are attached in the Resume section. We feel the qualifications of our review staff are the highest in the industry and are clearly over -qualified for hlewiJu'S (;mu1h IlunaiseineIII Doc nmeni lm,IgI/ V Ie,Icler this function. This is critical. Years of records management and data management experience exemplify our dedication to quality control. Not only is image quality and accuracy performed during the review stage, index field verification is as well. Individual and batch index screens are reviewed and compared to client logs and layover screens. Human review cannot be replaced with computer generated index review. This supplements review already performed during the index phase previously described. Document familiarity and records management experience support this function. We know this from years of records management, particularly within the Municipal sector. We are Florida's Industry Leader for Municipal records. This is apparent during any site visit. We set the benchmark while competitors replicate and duplicate our processes (many of our competitors actually outsource to ADS). All index discrepancies are resolved during both the index and review stages of production. Incomplete index information is either resolved internally or through direct input with client project team personnel in a "real time" manner. Box re -filing is also examined during review. Because document and data review is performed quickly after scanning, any quality issues are quickly identified and resolved at the early stages of project performance. Since all levels of production are tracked through logs and labels, individual employees are easily identified should there be any level of misunderstanding. We are always open to new processes identified through various means. Should the County require any new or specific review procedure, ADS will gladly employ such procedure in the interest of data integrity. We are about processes. They are our reputation and pride. Client success is always our ultimate goal. In the past, ADS has been subject to strict quality control review both internally and through client verification. We have always scored extremely high in terms of accuracy with regards to overall page counts and index data output. Although we always strive for 100% accuracy, we acknowledge error results of 0.03%. By using utilities such as double feed detection on production -level Kodak and Fujitsu scanners, most page omissions are avoided. In addition, images are typically reviewed at least three times during the scan, scan review, index and final review stages of production. Index data is reviewed electronically and manually. During the final stages of review, index data is reviewed at the detailed level and compared to client -prepared control logs. Lastly, index data is also reviewed at client site during the import process. Any issues identified are immediately corrected by ADS. Delivery of Alchemy Discs and Index Data ADS provides the County with Alchemy Data Discs which contain updated index files, pointer and ocr files and consecutive data containers. Each disc is labeled by batch, date and database descriptor. Discs are burned in order and filed as such at both the County and ADS offices. These are Alchemy discs, not flat file disc used for data import. Although files can be scanned external to the Alchemy system, it is best practice to employ competent Database Management from within the software platform. Discs should continue to reside within the program from a sound recordkeeping standpoint. It is not advisable to employ data import practices unless databases are managed by an Database Administrator at the County. This person would then become the database master and burn all CD / DVD media discs from within the software to continue the back-up and off site data storage practices which have been employed for years. We are currently on disc #637 for the County's main Building Permit database. With each batch transmission, we create document profiles that detail the files scanned by all index input fields. Such profiles can serve as support for Destruction Certificates, if desired. All batches are separated until approval is obtained from the Building Department as complete. At such time, batches are distributed within the Alchemy Folder Structure and competent Database Management is fulfilled. Florhhl t (N-enith Ilan iiel enl I.)oculllew IRlt/:'l/1,1,8 Lcth/c/. Scanned Image Files ADS converts paper records into either a Group IV Tagged Image Format Files (TIFF) or Portable Document Format File (PDF) adhering to all industry standards as set forth within ISO 32000 (PDF 3, version 1.7) and the Florida Department of States Records Management (DOS) — Standards and Requirements / Electronic Recordkeeping (Chapter 1 B-26.003, Florida Administrative Code). We will continue to monitor and update the County on all changes or amendments to the Industry and State's policies. ADS retains copies of source image files on DVD media for a period of two years after project completion. At such time, this media will be offered to the County as additional back up at no charge. Otherwise, the media will be completely destroyed using an appropriate heat source. Reporting Options This administrative phase of production immediately follows and sometimes corresponds with the review phase of production. Direct client communication effectively resolves any discrepancies so that any corrections can be made quickly, sometimes within hours. Detailed invoices, Destruction Certificates and Project Tracking Mechanisms are transmitted with all data. All dates and batch numbers directly correlate and reconcile to each other. All sign -off and approval are obtained prior to records destruction. Reporting Options vary greatly by each client engagement. Reports can be extremely detailed or in summary format sufficient to satisfy specific document and process type. Microsoft Access, Microsoft Excel and Delimited Files are often used for this function. ADS will continue to work directly with County personnel to provide necessary reports to ensure and document record integrity. Records Requests ADS employs two FTE's specifically dedicated to this function. Office, cell phone and email addresses within this defined group ensure that records requests are satisfied within hours. We provide this service at no cost to the client. Because we pride ourselves on quick turn -around, record requests are typically { kept to a minimum. We utilize both direct email and FTP transmission to satisfy most records requests. A "request" email address will be utilized that informs all group designates of client need as soon as possible. request ..adsus.net This address is routed to six different email addresses at ADS. Most requests are satisfied within minutes. General ADS is a "tight -knit" company with real client relationships. Every document matters as does every file and every index field. Our reputation is the only test of success at the end of the day. We cannot speak highly enough about our staff, their integrity, competence and company loyalty. We are a corporate family that works in a positive and teamwork environment. This is another critical factor to project success and should not be underestimated. If client deadlines change, so do our work schedules. People resources are what make our company unique and successful. This is one of the reasons we strongly recommend site visits by all our clients. Our clients trust us with their most valuable assets, their records. Considering that, it seems only prudent for our clients to visit our facility and meet all members of their assigned project team and the rest of our staff. There is no higher comfort level and comfort cannot truly be obtained from a written document. Because we focus strongly on Growth Management within the Florida Municipal Arena, we pride ourselves in being a leading force and industry expert within this specific discipline. /trnt{Yemen! Doc unient Imag=an: Le, it Document Destruction ADS has established strong working relationships with representatives at the Florida Department of State. During the early stages of imaging, we made periodic visits to Tallahassee and have been asked to speak at various industry forums in concert with that agency. We understand Florida Records Retention and "es Recordkeeping Requirements. We value our contacts at this agency and often refer clients to specific persons who serve to clarify any issue client personnel may have. We initiate and maintain Destruction Certificates that represent each and every batch of records destroyed. We obtain client sign -off and employ various control mechanisms long before any destruction occurs. Final sign -offs include, but are not limited to, independent re-counting and reconciliation of records to control logs, confirmation of back-up data to include actual execution of image and text files, verbal and written approval by client supervisors and end -users and other procedures necessary in each circumstance. ADS provides detailed box profile reports as supporting documentation for our destruction reports and for client Records Management Liaison Officers (RMLO) or other assigned client record keepers. We are fairly certain we established the protocol for records destruction for our competitors within the Florida records management arena. Please visit our website to access a direct link to Florida Recordkeeping Requirements under the guidance of the Florida Department of State. We only utilize a NAID certified destruction member (different from a NAID member) for on -site records destruction. Please see the attached documentation that emphasizes the importance we place on this confidential function. Secure On -Site Shredding • All Paper Material On -Site destruction and disposal - Non Sorting process (Paper clips, binders, staples, Eco fasteners can all stay) • End of life electronic destruction and proper disposal • Media destruction and proper disposal n • Disaster & Recovery of Confidential Paper Material / Iwi,I,I t f Ihlllil",Nlllel1/ DoculllNll/ IPllcl,4;111,� / cad r URE ' ON -SITE ITE SHREDDING to Secure On -Site Shredding Down Stream Processes On -Site Destruction at Advanced Data Solutions Paper Recycling All shredded paper material is baled in preparation for recycling at our facility guaranteeing our clients the utmost security. Secure On -Site Shredding owns and operates a state of the art baling system. The baled material is then shipped directly to the pulp mill for post consumer products. A third party recycling facility is in place in case the shredded material cannot be baled at our facility. Computers - CPU, Keyboard, Mouse, Monitor Secure On -Site Shredding has partnered with a leader in the electronic recycling industry. Electronics are separated into base materials. These materials consist of gold, silver, copper and other precious metals that are in limited supply, along with plastic, glass and other metals. These materials are recycled into new products. Hard Drives Secure On -Site Shredding securely shreds hard drives. This is the only method that guarantees complete data destruction. Secure On -Site shredding has a partnership with a local recycler to facilitate the smelting process; turning the precious aluminum into post consumer products. Data Devices — Back up Tape, VHS, CD, DVD, Cell Phones, USB Secure On -Site Shredding shreds all E-Media prior to the recycling process. We currently work with a local recycler to ensure this material is properly recycled and turned into post consumer products. Micro Media- Microfiche, Microfilm All shredded Micro Media is recycled through a Waste to Energy process. Waste to Energy is the process of creating energy in the form of electricity or heat from the incineration. GREEN ' GdM= WON - 3mce 19�4 Tyr � ham savedt��� �, z�� .�. .,, r,a�.., r, ae d . „u Via. [,.� cak 7� dL�A� • F�gves >n bored an the "lnled S4tc Fnavamoitl Rdecbm Asacy a of 2M tAr W The VST-42e Dual -Duty Shredding System The VST-42e Dual -Duty Mobile Shredding System This advanced electric shredding system is designed for high throughput and dual -use service - on -site mobile and plant based stationary. While in the mobile mode, equipment power is generated via a proprietary, compact PTO -driven generator component, thus eliminating the need for a central hydraulic power system. Vecoplan's unique QuickLinkTm "Plug and Play" Docking Technology (Patent Pending) also allows use as a stationary system when at, or in, your plant or purge site by shutting off the truck engine and plugging into 3-phase industrial plant power. Hybrid... Runs on ULSD & B5 Biodiesel for lower carbon footprint Combo... Conventional mobile shredding system or plant -based shredding system. Environmentally Cleaner... Meets 2007 model year EPA emissions standards Reliable... JAM -FREE OPERATION GRAPHIC TOUCH SCREEN CONTROL Automated Programming For Any Task... Our trucks are locked at all times this includes all doors gaining access to our trucks. Our policy states that no one is allowed inside our trucks except employees. Our trucks are equipped with automated shredding systems, which mean our Certified Personnel never come in contact with the material during the shredding process. The touch screen prompts on what functions are to be performed and/or if there is any malfunction in the system. With the joystick the CP will lift the full container and dump all of the sensitive material onto a feed, which intermittently feeds the shredder. The feed will pause every few seconds; this permits the shredder to perform its task of pulverizing the material. After the material has gone thru the shredder it falls to the lower section where it is then pushed into the trucks storage compartment. Our trucks are also equipped with 3 viewing cameras; Vt camera viewing the shredding process, 2"d camera views the shredded paper going into the storage compartment and the 3`d camera SFr views the outside rear of the truck for safety when maneuvering and parking. All shredded material is stored inside the truck, which is then unloaded at our secure facility by the same CP that performed the shredding. After the shredded material is unloaded it is baled and shipped directly to the pulp mill for recycling. TAB 2 V. TURN -AROUND TIMES TURN -AROUND TIMES All client projects are completed according to deadlines established during project inception. Here's an example. We scanned 1.1 million images within 90 days employing a 24 hour staff of 75 full and part- y time employees. This image count equated to over 1,000 boxes of records. Many of these images were color as well as black and white. We pledge to meet all deadlines established by the County. We recommend establishing a monthly pick- up, data transmission and destruction schedule agreeable to the County on a going forward basis. ADS will remain flexible if the County requires a lag time of a few days or weeks to accommodate document preparation and readiness. Within previous sections of this proposal, we have demonstrated equipment and personnel resources sufficient to meet any deadline requirement by Monroe County. / 7[fr i[l[r 1 (®r°ntr/// .11enr[r,�evne rr/ !)u[ rrnr�n/ lrn[{s>rrn� Leader TAB 3 LITIGATION I- IV. ALL ASSERTIONS IN LITIGATION Has the respondent ever failed to complete work or provide the goods for which it has contracted? (If yes, provide details.) Advanced Data Solutions, Inc. has never failed to complete work or provide goods for which it has contracted. Are there any judgments, claims, arbitration proceeding of suits pending or outstanding against the respondent, or its officers or general partners? (If yes, provide details.) Advanced Data Solutions, Inc., its officers and general partners have NO judgments, claims, arbitration proceeding of suits pending or outstanding. III. Has the respondent, within the last five (5) years, been a parry to any lawsuit or arbitration with regard to a contract for services, goods or construction services similar to those requested in the RFP? (If yes, the Respondent shall provide a history of any past or pending claims and litigation in which the Respondent is involved as a result of the provision of the same of similar services which are requested or described herein.) Advanced Data Solutions, Inc. has never been a party to any lawsuit or arbitration with regard to a contract for services, goods or construction services similar to those requested in this Request for Proposal. IV. Has the respondent ever initiated litigation against the County or been sued by the county in connection with a contract to provide services, goods or construction services? (If yes, provide details.) Advanced Data Solutions, Inc. has never initiated litigation against the County or been sued by the County in connection with a contract to provide services, goods or construction services. V. Whether, within the last (5) years, an officer, general partner, controlling shareholder or major creditor of the respondent was an officer, general partner, controlling shareholder or major creditor of any other entity that failed to perform services or furnish goods similar to those sought in this Request for Proposals. No officer, general partner, controlling shareholder or major creditor was an officer, general partner, controlling shareholder or major creditor or any other entity failed to perform services or furnish goods similar to those sought in this Request for Proposal. Flo iJu'e (;!'()trot .11unt ii"enten® l )nc•Ill revl® hm i itq, / ender ,i TAB 4 - COUNTY FORMS AND LICENSES I. SUBMISSION RESPONSE FORM II. LOBBYING & CONFLICT OF INTEREST CLAUSE III. NON -COLLUSION AFFIDAVIT IV. DRUG FREE WORKPLACE FORM V. PUBLIC ENTITY CRIME STATEMENT VI. LOCAL PREFERENCE FORM VII. RESPONDANT'S INSURANCE & INDEMNIFICATION STATEMENT VIII. INSURANCE AGENT'S STATEMENT IX. PROFESSIONAL & OCCUPATIONAL LICENSES SECTION THREE: COUNTY FORMS Please follow the complete instructions to respondents specified in Section 9 "Contractor Selection and Evaluation Process" RESPONSE FORM RESPOND TO: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS c% PURCHASING DEPARTMENT GATO BUILDING, ROOM 1-213 1100 SIMONTON STREET KEY WEST, FLORIDA 33040 I acknowledge receipt of Addenda No.(s) I have included: • Lobbying and Conflict of Interest Clause f • Non -Collusion Affidavit • Drug Free Workplace Form • Public Entity Crime Statement • Insurance Requirements • Local Preference Form (if applicable) (Check mark items above as reminder that thev are included) In addition, I have included a current copy of the following professional and occupational licenses: Mailing Address:./ / �os��%,��=r IL�d Telephone:3 - Signed name) (Titley Fax: _U li- �br - Date: _ !4 (Seal) LOBBYING AND CONFLICT OF INTEREST CLAUSE SWORN STATEMENT UNDER ORDINANCE NO. 010-1990 MONROE COUNTY, FLORIDA ETHICS CLAUSE ,O,V/W `SQ[�Tio (Company) "...warrents that he/it has not employed, retained or otherwise had act on his/her behalf any former County officer or employee in violation of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this provision the County may, in its discretion, terminate this Agreement without liability and may also, in its discretion, deduct from the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee." ' 1 (Sig ature) % Date: STATE OF: rL 40f,'/,D14 COUNTY OF:,_... f' V64LA Subscribed and sworn to (or affirmed) before me on e,6 (date) by MC, Lid aV Is dae L (name of affiant). H /Sh personally known to me or has produced (type of identification) as identification. NOTARY PUB IC My Commission Expires: ,44Zz CAROL M. NOVAK Commission DD 680934 Expires June 3, 2011 " , Rended TAru Troy Fun imurarmo SM-385.7019 NON -COLLUSION AFFIDAVIT I • ALLU41 U£LL of the city of OLD S In y,,_ according to law on my oath, and under penalty of perjury, depose and say that 1. 1 am P _ C S /d L) j of the firm of %tl1"tsi�i l/'.�1) /1l�t/� 5/�LG! 1 ['/ the bidder making the Proposal for the project described in the Request for Proposals for b1di r. B dr I)tXI y, uegand that I executed the said proposal with full authority to do so; 2. the prices in this bid have been arrived at independently without collusion, consultation, communication or agreement for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or with any competitor; I unless otherwise required by law, the prices which have been quoted in this bid have not been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior to bid opening, directly or indirectly, to any other bidder or to any competitor; and 4. no attempt has been made or will be made by the bidder to induce any other person, partnership or corporation to submit, or not to submit, a bid for the purpose of restricting competition; 5. the statements contained in this affidavit are true and correct, and made with full knowledge that Monroe Count y relies upon the truth of the statements contained in this affidavit in awarding contracts for said project. (Si ature) Date: STATE OF: _�"lp/?11] COUNTY OF: S Subscribed and sworn to (or affirmed) before me on ,T Llk e= ��' ,,�d�'Cl (d e) by o C L _ L L d (name of affiant) 11 /She personally Cknown to o me or has produced (tYPe of identification) as identification. ;;�}'���1•',F: CAROL M. NOVAK NOTARY P LIC Commission DD 680934 a= Expires June 3, 2011 My Commission Expires: D 3 89nded 7hm imy fain Inswam s00.395.7019 The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: /ltJC 4E 0h T�i SOZ itrmly_ S fee, (Name of Business) 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the business' Policy of maintaining a drug -free workplace, any available drug counseling, rehabilitati employees on, and employee assistance programs, and the penalties th for drug abuse violations. at may be impaosed upon 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contenderre to, any violation of Chapter 893 (Florida Statutes) or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community , or any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. (Si atre)j1-"-A Date: STATE OF: COUNTY OF: ,,,/iJ EL Subscribed and sworn to (or affirmed) before me on l 9,L LD /,o (date) by _ me -Z'11 .5 razz L- (name of affiant). HoShepersonally known to m. a o4 has produced (type of identification) as identification. M� ►' CAROL M. NOVAK NOT RY PU LIC '_. or DD 680934 ;= Expires June ri 2011 M Commission Expires. C / '�i, „ BwM Thru Troy Fein Insurance B00.385.7019 y ! ) PUBLIC ENTITY CRIME STATEMENT "A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or CONTRACTOR under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months fro the date of being placed on the convicted vendor list." I have read the above and state that neitherA��1 L► ,�( --�l.�lL�i1T» �e urtis (Respondent's name) nor any Affiliate has been placed on the convicted vendor list within the last 36 months. STATE OF: f "L191el ll COUNTY OF: X/ cz4.,Y-s Subscribed and swom to (or affirmed) before me on J� �� / ?,y/!� (date) by mz-LQVV S&UC4 L (name of affiant). H Sh 's personally known to me or�As produced (type of identification) as identification. ;iM�eig; CAROLM.NOVAK i COmmIssion DD 6so934 Expires June 3, 2011 f1M Troy F0Insw. m3o&7019 LI! � / ; � e /I/ )" I'Z_ NOTAR PUBLI My Commission Expires: & /,j LOCAL PREFERENCE A. Vendors claiming a local preference according to Ordinance 02 complete this form will result in disqualification from receiving local I Namc of Biddcr/Responder_ I . Does the vendor have a valid receipt for the business tar pa - One year prior to the notice or request for bid or proposal? must complete this form. Failure to preference. Date: the Monroe County Tax Collector dated at least _ (Please furnish copy. ) 2. Does the vendor have a physical business address located thin Monroe County from which the vendor operates or performs business on a day to day basis that is a subst 'al component of the goods or services being offered to . Monroe County? List Address: Telephone Number. B. Does the vendor/prime contractor intend to s local businesses meeting the criteria above as to If yes, please provide: 50%or more of the goods, services or construction to and location? I . Copy of Receipt of the business tax paiVdor the Monroe County Tax Collector by the subcontractor dated at least one year prior to the notice or request for proposal. 2. Subcontractor Address within Signature and Title of Bidder/Responder STATE OF COUNTY OF On this Local Preference Signatory for from which the subcontractor operates: Tel. Number Print Name: V . 20 before aue, the undersigned notary public,laaown to me to be the personalty appeared person whose name is subscribed above or who produced as identification, and acknowledged that he/she is the person who executed the above he purposes therein contained. Notary Public Print Name My commission expires:__ Seal `k aI 1 ''x SECTION FOUR: INSURANCE REQUIREMENTS MONROE COUNTY, FLORIDA RISK MANAGEMENT POLICY AND PROCEDURES CONTRACT ADMINISTRATION MANUAL Indemnification and Hold Harmless For Other Contractors and Subcontractors The Ccnft:Wr covenants and agrees to indemnify and hold harmless Monroe County Board of County Commissioners from any and all cams for bodily injury (including death), personal k". and property damage (including property owned by Mon me County) and any other losses, dewnages, and asperses (kwkm ng aft omey's fees) which arise out cf, in cmwdon with, or by reason of services provided by the Contractor or any of its Suboontracxor(s) in any tier, occasioned by negligence, errors, or other wrongful act of omission of the Contractor or its Subcontraadtors in any tier, their employees, or agents. In the event the completion cf the project (to include the work of others) is delayed or suspended as a result of 1% Contract's fallure to purchase or maintain the required insurance, the Contractor shall IndemnNy the County from any and all increased expenses resulting from such may. The drat ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for above. The extent of liability is in no way Nmited to, reduced. or lessened by the insurance requirements contained elsewhere within this agreement. Advanced Data Solutions agrees to the above insurance and indemnification statement. Respondew S' VEHICLE LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract requires the use of vehkies, the Cat b CW prior to the commencement of work, shall obtain Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, lability coverage for: • Owned, Non -Owned, and Hired Vehicles The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) If split limits are provided, the minims limits acceptable shalt be. $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage The Monroe County Board of County Commissioners shah be named as Additional Insured on all policies issued to satisfy the above requirements. Re ' gig - 33 - {:-DVANce;b PoL-►c-j *6-H7jojV&04 l aw#s roviwwod ft adore ro**wnwb *Mft .Mimabobw. IftfolkwingdeductRia "OV 10 ft owrapon&V potty. • M Liftft Pam we __,,._O=mw ov InWMnoo AOW" data" Abdo CERTIFICATE OF LIABILITY INSURANCE OP ID SR OATEIMM/DI -- ADVAN07 O6 lE N THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFER rlisle Fields & Company, LLC S NO RIGHTS UPON THE CERTIFICATE mP y r HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Bok 1027 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. earwater FL 337a -7910 Phone:427-797-0441 Fax:727-725-3663 THE POLII ANY REO1 MAY PERT POLICIES. ERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE J OCCUR LAGGREGATE LIMIT APPLIES PER' POLICY hI PRO- LOC AUTOMOBILE LIABILITY B X ANY AUTO ALL DWNED AUTOS Xr. SCHEDULED AUTOS '_X HIRED AUTOS Xi, NON-OWNEDAUTOS AGE LIABILITY ANY AUTO EXCESS I UMBRELLA LIABILITY OCCUR CLAIMS MADE ' DEDUCTIBLE RETENTION S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY A ANY PROPR1ETORIPARTNER/E)I OFFICERMMEMBER EXCLUDED? (Mandatory in NH) Wes, describe under SPECIAL PROVISIONS below :Advanced Data Solutions , Inc. .Melody Buell CPA 141 Scarlet blvd #A Oldsmar FL 34677 INSURERS AFFORDING COVERAGE INSURER A Northern Insurance C INSIIOCCG Aw.�.....� T-_•_�_--_ �._ wsURERC: Houston Casual INSURER D. E• OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMEDABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING BENT TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH ;REGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OFIMS-URANCE POLICY NUMBER-PUCV'lnnCiwv-;P ICY...rI,..EAMUffrd—......,..._N LIMITS - - EACH OCCURRENCE S FGEN ;EXP S (Ea occurence) S (Any ene person) S AL & AOV INJURY $ LAGGREGATE $ ROUCTS.COMP/OPAGG NAIC # 32700 , COMBINED SINGLE LIMIT S 1000000 4795673300 04/04/10 04/04/11 (Eaaaiderd) BODILY INJURY (Per person) $ BODILY INJURY '(PeracudeM) S PROPERTY DAMAGE S (Per aaideM) AUTO ONLY - EA ACCIDENT S OTHER THAN EAACC $ AUTO ONLY: - - AGG ' $ EACH OCCURRENCE $ AGGREGATE I S -- $ YINJ X TORY LIMBS ER _ WCUJ49783300 02/21/10 02/21/11 . E.L. EACH ACCIDENT $ 100000 El DISEASE - EA EMPLOYEE S 100000 ELDISEASE•POLICYLIMIT $SOOOOO - - C Professional Liab H70912654 06/02/10 06/02/11 Occurence Uracnw uoN UI. UPERATIONS / LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Scheduled veh: 2002 HOND ACCORD EX 1HGCG56642AO17688, 2006 Ford Ecomoline 1FTNE24WO6DA70794 CERTIFICATE HOLDER County of Monroe Board of County Commissioners Risk Management 1100 Simonton St. COUNTMO 1000000 2500 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIO DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO $0 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. F. ACORD 25 (2009101) © 119W.2W&Wj The ACORD name and logo are registered marks of ACORD �.BANCE Af3E1V TATEAAEN7 t have navlewed the above roq 4remerns with the bidder named below. The following ded.eUblas apply to the corresponding pollcy. POLICY L� i, 4- Uabdity policies are �ipcc ence o)o Insurance Agency WE DEDUCT L .__Claims Made From: Brown & Brown Insurance Date: 5/26/2010 3:03:34 PM CERTIFICATE OF LIABILITY INSURANCE OV&Ns?6 „3 Brown 6 Brown Insurance 83 Park Place Blvd., Ste 101 P.O. Box 2456 (33757-2456) Clearwater FL 33759 Phone:727-461-6044 Fax:727-442-7695 Advgagpnpgcced Data Solutions, Inc. OLLDSMAR248 1% 34677-0248 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOVI INSURERS AFFORDING COVERAGE NAIC # rNSURERA. NAstford Casualty Insurance Co ____. - . 29424 .NSURER B INSURER C ENSURER D. THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAW. Nam LTR TYPE OF INSURANCE POLICY NUMBER I DA 7 L1MIT8 GENERAL LJABSITY EACH OCCURRENCE f 1000000 A X X COMMERCIAL GENERAL LIABILnY CLAIMS MADE OCCUR 21SBAK00961 07/17/09 07/17/10 PREMISES (Ea;Qk'X'nce) MED EXP (Any one parson) ° f 300000 f 10000 f 1000000 —_ PERSONAL A ADV INJURY f 2000000 GENERAL AGGREGATE GEN L AGGREGATE LIMITAPPLIES PER. POLICY ECTLOG _ S2 PRO�D_U_._C,. T_S _ -COMP/I?!!0000 , AUrOMOBILE LIABILITY ANY AUTO COMSHM SINGLE LIMIT (Ee eccideN) f ALL OWNED AUTOS SCHEDULED AUTOS - BODILY INJURY (Per person) -- f HIRED AUTOS NON OWNED AUTOS BODILr w.uar (Per eccidenU f PROPERTYOAMAGE (Peraccldent) f --- GARAGE LIABRM AUTO ONLY • EA ACCIDENT Is ANY AUTO S -- OTHER THAN EA ACC _ f AUTO ONLY AGO EXCESS I UMBRELLA LIABILITY OCCUR CLAIMS MADE EACH OCCURRENCE f AGGREGATE . i f - DEDUCTIBLE - RETENTION IMMIERS COMPENSATION AND EMPLOYERS' LIABSM YIN ANY PROPR BTOR/PARTNER)EXECUTNEE1 OFFICER/MEMBER EXCLUDED? (Maraht" in NN) M yysss, describe under SPECIAL ALPROVISIONS below TORV L IMR:ST'T I FR E.L. EACH ACCIDENT f El DISEASE - EA EMPLOYE9 f E.L. DISEASE • POLICY LIMB — i OTHER DESCRPTION OF OPERATIONS I LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Monroe County Board of County Commissioners is an Additional Insured for General Liability Coverage only when required by written contract or agreement. GEK I R IGA 1 C MULUtK CANCELLAnoN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRAT1O1 MONRO-4 DATE THEREOF, THE ISSUING INSURER VKL ENDEAVOR TO MAL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOWER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER ITS AGENTS OR Monroe County BOCC 1100 Simonton Street, Room 268 AUTN REPRESEIdTATn/Es. Key West rL 33040 /.lam � TME�. _ The ACORD name and logo are registered marks of ACORD 00 T--1 O C) O E-+ Ch aw H [� w� aco ru HW W z aA AO AH oa oE-4 W UH 0 O H H �+ w. ul N � Q O U)u o En o� H H u 0 m 0 0 N O zAa H0ca I A N a H a U fd H U a -H oa UQ W CA H U) R E+ a H W U W x E4 W z H W BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Division: Growth Management Bulk Item: Yes X No _ Department: Code Enforcement Staff Contact Person/Phone #:Christine Hurley, Division Director; Ronda Norman, Code Enforcement Director #289-2517 AGENDA ITEM WORDING: Approval to advertise a public hearing to consider adoption of an Ordinance amending Chapter 8 of Monroe County Code, to change the name of the Code Enforcement Department to the Code Compliance Department and retaining all powers of Code Enforcement. ITEM BACKGROUND: Following Town Hall Meetings held by County Administrator Roman Gastesi throughout 2008-2009, residents voiced their opinions related to the code enforcement department and how certain code enforcement violations that are non -life safety should include better communication, and that the community is seeking a more responsive form of enforcement. The goal of this department is to gain compliance with Monroe County codes. The term compliance implies the department should be more receptive and open to gaining compliance. The department is working on several additional ordinance modifications that should be coming forward to the Board of County Commissioners in the next several months; however, this is the first step being sought to address community concerns found through the town hall meetings. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST: Minimum $3000 INDIRECT COST: BUDGETED: Yes No X DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 ORDINANCE - 2010 AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS AMENDING CHAPTER 8 REGARDING THE DEPARTMENT OF CODE ENFORCEMENT; CHANGING THE DEPARTMENT NAME TO CODE COMPLIANCE; RETAINING ALL POWERS OF CODE ENFORCEMENT IN THE DEPARTMENT OF CODE COMPLIANCE; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Board of County Commissioners has directed staff to change the name of the Department of Code Enforcement to Department of Code Compliance; and WHEREAS, the current composition of Chapter 8 of Monroe County Code reflects the words Code Enforcement; and WHEREAS, it is the desire of the Board of County Commissioners to adopt this name change without changing the authority of the code enforcement department or of its officers and inspectors; NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS: Section 1. Chapter 8 of the Monroe County Code shall be amended as follows: (deletions are str-ieken thfettg and additions are underlined): Section 2. Article I shall be amended as follows: Sec. 8-1. - Definitions. Sec. 8-2. - Department of eerie eafer- ,o. ent code compliance, creation. Sec. 8-3. - Issuance of citations by, eerie en f ..,.om en code compliance officers. Sec. 8-4. - Violation citations. Sec. 8-5. - Enforcement of F.S. ch. 705, lost or abandoned property. Secs. 8-6-8-26. - Reserved. Sec. 8-1. - Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Version August 22, 2010 4:00 Page 1 of 16 Ce Code Compliance Special Magistrate means a person hired by the board of county commissioners to adjudicate violations of this Code. Code inspector means any authorized agent or employee of the county whose duty it is to ensure code compliance. Co Code compliance County Attorney means legal counsel for the county. Repeat violation means a violation of a provision of this Code by a person, who through a quasi-judicial or judicial process, has been previously found to have violated or who has admitted violating the same provision of this Code within five years prior to the violation, notwithstanding the violations occur at different locations. Sec. 8-2. - Department of eerie e.& feemeat code compliance creation. There is hereby created a department to be known as the department of Eede enfervement code compliance which shall have all authority of code enforcement under Florida law. The terms code enforcement and code compliance are interchangeable where referenced in other portions of the code. Upon the recommendation of the county administrator, the board of county commissioners may assign the department to the division of county government that the board determines to be appropriate. The department shall be responsible for the enforcement of, but not limited to, the following ordinances concerning: land development regulations, waste disposals, the comprehensive land use plan, occupational licenses, fire, building, zoning, and sign codes, as well as any other ordinances of the county. The county administrator, with the approval of the board of county commissioners, shall designate a director for the department of eerie e. fer-,,o. ent code compliance who shall be a full time/permanent employee of the county and whose function it shall be to oversee and administer the operations of the eerie enf ..,.ement code compliance department. The eerie en fo,-ee flie t code compliance director, with the approval of the county administrator, shall appoint personnel for the eerie ea f r-ee ent code compliance department and shall designate which department personnel will be engaged in enforcement as code inspectors. The board of county commissioners shall provide clerical and administrative personnel as may be reasonably required by the ee a enfe..,.o. ent code compliance special magistrate for the proper performance of its duties; however, such staff shall be under the supervision and direction of the ee a enf ..,,o. ent code compliance director. Sec. 8-3. - Issuance of citations by code enforcement officers. (a) County code enforcement officers, under the direction of the Eerie e ent code compliance administrator, are hereby designated enforcement officers for the purpose of enforcing the provisions of this Code pursuant to Laws of Fla. ch. 76-435. Version August 22, 2010 4:00 Page 2 of 16 (b) The citations shall be uniformly printed and pre -numbered in quadruplicate and shall list by ordinance number and section and by short, descriptive wording the county ordinance or ordinances violated, and shall indicate the name and address of the county court where the violation shall be tried, the names of issuing officer and cited person, and the date of the violation. The form of the citation shall be reviewed and approved by the clerk of the court, the state attorney, the court administrator, the chief judge for the 16th Judicial Circuit, and the county administrator. (c) The county administrator shall submit to the chief judge of the 16th Judicial Circuit a recommended fine schedule, as adopted by resolution of the board of county commissioners, in lieu of court appearance. Sec. 8-4. - Violation citations. (a) Those county code inspectors designated by a resolution of the board of county commissioners shall, when appropriate, according to the policy of the board of county commissioners, have authority to issue citations for violations of the county codes for disposition in county court as provided for in Laws of Fla. ch. 76-435. (b) All forms required to make Laws of Fla. ch. 76-435 operable shall be drafted by the county attorney in consultation with the county administrator, the state attorney and the various county court judges. (c) Nothing in this chapter shall be construed to, in any way, amend or modify Laws of Fla. ch. 76-435 under article VIII, section 6(d), Florida Constitution. Sec. 8-5. - Enforcement of F.S. ch. 705, lost or abandoned property. The county code eafer-eement compliance officers and county municipal service district hazardous waste inspectors are hereby authorized to enforce the provisions of F.S. ch. 705. Section 3. Article II is amended as follows: Sec. 8-27. - Code vat compliance special magistrate; creation, powers and duties. Sec. 8-28. - Enforcement procedure. Sec. 8-29. - Conduct of hearing. Sec. 8-30. - Powers of the enfer-eemenn code compliance special magistrate. Sec. 8-31. - Administrative fines; liens. Sec. 8-32. - Duration of lien. Version August 22, 2010 4:00 Page 3 of 16 Sec. 8-33. - Appeals. Sec. 8-34. - Notices. Sec. 8-35. - Amendments to F.S. ch. 162. Sec. 8-36. - Code compliance eafe-ee.ne.A by other means. Sec. 8-37. - Passage of four years a bar to prosecutions. Secs. 8-38-8-62. - Reserved. Sec. 8-27. - Code eomplianee enforcement special magistrate; creation, powers and duties. (a) Creation. The office of code ent. compliance special magistrate is hereby created. (b) Appointment. The board of county commissioners may appoint as many code e. fer-,,o.,,o..* compliance special magistrates as it determines is necessary. The board of county commissioners may also enter into an interlocal agreement with a municipality or another county to use the services of that jurisdiction's code enforcement special magistrate or to permit another jurisdiction to use the services of the county's special magistrate. If the board of county commissioners elects to use the services of another jurisdiction's special magistrate through an interlocal agreement, that special magistrate shall possess the same powers as if he had been appointed directly by the board. (c) Compensation. Compensation for the code op" r-ee. eat compliance special magistrates must be established by a resolution of the board of county commissioners. (d) Qualifications. All persons appointed or retained through interlocal agreement as special magistrate must have been members of the Florida Bar for five years and have experience in land use and local government law. Code enforcement special magistrates may not hold any other appointive or elective office while serving as special magistrate except when the special magistrate hears cases in two or more jurisdictions pursuant to an interlocal agreement. (e) Authority. The code enforcement special magistrate is granted the powers, duties and authority, including the authority to impose fines and liens and to order foreclosure of liens, granted by statute and ordinance. Sec. 8-28. - Enforcement procedure. (a) It shall be the duty of the director of code e , compliance through the code inspectors, to initiate enforcement proceedings of the various codes; however, the code enfer-eementcompliance special magistrate shall not have the power to initiate such enforcement proceedings. Version August 22, 2010 4:00 Page 4 of 16 (b) (c) (d) (e) Except as provided in subsections (c) and (d) of this section, if a violation of the codes is found, the code inspector shall notify the violator and give him a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the director of the code men compliance department shall notify the code event compliance special magistrate and request a hearing. The code ef&r-eement compliance special magistrate, through clerical staff, shall schedule a hearing, and written notice of such hearing shall be hand - delivered or mailed, as provided in F.S. § 162.12, or section 8-34, to the violator. At the option of the code en --eeme t compliance special magistrate, notice may additionally be served by publication or posting as provided in F.S. § 162.12, or section 8-34. If the violation is corrected and then recurs, or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the code enforcement. compliance special magistrate even if the violation has been corrected prior to the hearing, and the notice shall so state. If the code inspector has reason to believe a violation, or the condition causing the violation presents a serious threat to the public health, safety and welfare, or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator; and the director of code enforcement may immediately notify the code enforcement special magistrate and request a hearing. If a repeat violation is found, the code enfer-eementcompliance inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The code e4mement compliance inspector, upon notifying the violator of a repeat violation, shall notify the director of code enfer-eement compliance and request a hearing. The code a ent compliance special magistrate, through clerical staff, shall schedule a hearing and shall provide notice pursuant to F.S. § 162, or section 8-34. The case may be presented to the code enfer-eementcompliance special magistrate, even if the repeat violation has been corrected prior to the hearing, and the notice shall so state. If the repeat violation has been corrected, the code eafer-eement compliance special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his rights to this hearing and pay such costs as determined by the code e compliance special magistrate. If the owner of property that is subject to an enforcement proceeding before a special magistrate or a court transfers ownership of the property Version August 22, 2010 4:00 Page 5 of 16 between the time the initial pleading was served and the time of hearing, such owner shall: (1) (2) (3) (4) Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to code en€ereefneat compliance proceedings received by the transferor; Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enfer-eeRienL compliance proceeding; and File a notice with the director of code enf ff emen+ compliance of the transfer of the property, with the identity and address of the new owner and copies of the disclosure made to the new owner, within five days after the date of transfer. A failure to make the disclosures described in subsections (e)(1), (e)(2), and (e)(3) of this section before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held. Sec. 8-29. - Conduct of hearing. (a) (b) A hearing shall be held upon request of the code a compliance director, or at such other times as may be necessary. All hearings and proceedings shall be open to the public. Code e ent compliance hearings shall be held at a time and place noticed by the director of code o..F r-eement. compliance. Each case before the code own compliance special magistrate shall be presented by the county attorney, or his designee, or by the director of code compliance e ent, or his designee, as may be determined by the county attorney. The code o ent compliance special magistrate shall proceed to hear the cases on the agenda for that day. All testimony shall be under oath and shall be recorded. The special magistrate shall take testimony from the code inspector, alleged violator, and any other relevant witnesses. Formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the Version August 22, 2010 4:00 Page 6 of 16 (c) proceedings. If the county prevails in prosecuting a case before the special magistrate, it shall be entitled to recover all costs incurred in prosecuting the case and such costs may be included in the lien authorized under F.S. § 162.09(3), or section 8-31. At the conclusion of the hearing, the code eaf-eeffo„* compliance special magistrate shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted in this chapter and by applicable statutes. The order may include a notice that it must be complied with by a specified date and that a fine may be imposed, and under the conditions specified in F.S. § 162.09(1), or section 8-31, the costs of repairs may be included along with a fine if the order is not complied with by such date. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violations concerns real property and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest, or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the code enfer-eement compliance special magistrate shall issue an order acknowledging compliance that shall be recorded in the public records. A hearing is not required to issue such an order acknowledging compliance. Sec. 8-30. - Powers of the en€er-eement code compliance special magistrate. The code o. ent code compliance special magistrate shall have the power to: Adopt rules for the conduct of hearings; Subpoena alleged violators and witnesses to hearings. Subpoenas shall be served by the sheriff or others authorized to serve process; Subpoena evidence; Take testimony under oath; and Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance. Version August 22, 2010 4:00 Page 7 of 16 Sec. 8-31. - Administrative fines; liens. (a) (b) (c) The codeen compliance special magistrate, upon notification by the director of the department of code eflfer-eement compliance that an order of the board has not been complied with by the set time or upon finding that a repeat violation has been committed, may order the violator to pay a fine not to exceed $1,000.00 per day per violation for a first violation, up to $5,000.00 per day per violation for a repeat violation, and up to $15,000.00 per violation if the special magistrate finds the violation to be irreparable or irreversible in nature. In addition, if the violation is a violation described in F.S. § 162.06(4), the special magistrate shall, through the director of code compliance enfer-ee, notify the board of county commissioners, that may make all reasonable repairs that are required to bring the property into compliance and charge the violator with the reasonable cost of repairs along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the board of county commissioners to make further repairs or to maintain the property and does not create any liability against the board of county commissioners for any damages to the property if such repairs were completed in good faith. If, after due notice and a hearing, a code compliance eafeFeement special magistrate finds a violation to be irreparable or irreversible in nature, he may order the violator to pay a fine as specified in this section and a hearing shall not be necessary for issuance of the order. In determining the amount of the fine, if any, the code compliance Beni special magistrate shall consider the following factors: (1) (2) (3) The gravity of the violation; Any actions taken by the violator to correct the violation; and Any previous violations committed by the violator. A certified copy of an order imposing a fine, or a fine plus repairs costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of this state, including levy against the personal property of the violator, but shall not be deemed to be a court judgment except for enforcement purposes. A fine imposed pursuant to this section shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this Version August 22, 2010 4:00 Page 8 of 16 section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the board of county commissioners, and the board may execute a satisfaction or release of lien entered pursuant to this section. After three months from the filing of any such lien that remains unpaid, the code enforcement special magistrate may authorize the county attorney to foreclose on the lien or to sue to recover a money judgment for the amount of the lien plus accrued interest. No lien created pursuant to the provisions of this chapter may be foreclosed on real property that is a homestead under section 4, article X of the State Constitution. Sec. 8-32. - Duration of lien. No lien provided under this chapter, or under F.S. ch. 162, shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction. In an action to foreclose on a lien, the prevailing party is entitled to recover all costs, including a reasonable attorney's fee that it incurs in the foreclosure. The board of county commissioners shall be entitled to collect all costs incurred in recording and satisfying a valid lien. The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded. Sec. 8-33. - Appeals. An aggrieved party, including the board of county commissioners, may appeal a final administrative order of the code compliance o nt special magistrate to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the code compliance en fo .,.e ent special magistrate. An appeal shall be filed within 30 days of the execution of the order to be appealed. Sec. 8-34. - Notices. (a) All notices required by this chapter shall be provided to the alleged violator by: (1) Certified mail, return receipt requested, provided if such notice is sent under this subsection to the owner of the property in question at the address listed in the tax collector's office for tax notices, and at any other address provided to the director of code compliance ~fer-ee ~y such owner and is returned unclaimed or refused, notice may be provided by posting as described in subsections (c)(1) and (c)(2) of this section, and by first class mail directed to the addresses furnished to the director of code compliance Version August 22, 2010 4:00 Page 9 of 16 (b) (c) (d) (2) (3) (4) o nt with a properly executed proof of mailing or affidavit confirming the first class mailing; Hand delivery by the sheriff or other law enforcement officer, code inspector, or other person designated by the board of county commissioners; Leaving the notice at the violator's usual place of residence with any person residing therein who is 15 years of age or older and informing such person of the contents of the notice; or In the case of commercial premises, leaving the notice with the manager or other person in charge. In addition to providing notice as set forth in subsection (a) of this section, at the option of the code compliance en farvement special magistrate, notice may also be served by publication as follows: (1) Such notice shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper of general circulation in the county. The newspaper shall meet such requirements as are prescribed under F.S. ch. 50, for legal and official advertisements; and (2) Proof of publication shall be made as provided in F.S. §§ 50.041 and 50.051. In lieu of publication as described in subsection (b) of this section, the notice may be posted as follows: (1) A notice may be posted at least ten days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other that shall be at the front door of a courthouse in the county; and (2) Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting. Notice by publication or posting may run concurrently with, or may follow, an attempt to provide notice by hand delivery or by mail as required under subsection (a) of this section. Evidence that an attempt has Version August 22, 2010 4:00 Page 10 of 16 been made to hand deliver or mail notice as provided in subsection (a) of this section, together with proof of publication or posting as provided in subsections (b) and (c) of this section shall be sufficient to show that the notice requirements of this chapter have been met, without regard to whether or not the alleged violator actually received notice. Sec. 8-35. - Amendments to F.S. ch.162. Any subsequent amendments to F.S. ch. 162, that are in any way inconsistent with sections 8-1, 8-2, and 8-27-8-33, shall control over the sections to the extent of any inconsistency. Sec. 8-36. - Code compliance by other means. Nothing in this chapter shall be construed to preempt or prohibit the county from enforcing its codes by any other lawfully available means. Sec. 8-37. - Passage of four years a bar to prosecutions. (a) (b) (c) All prosecutions before the code compliance en f f.ee eat special magistrate shall be initiated within four years of the occurrence of the event complained of or be forever barred. For the purpose of this section, the term "initiated" means the filing of a notice of violation, issuance of a notice to appear, or issuance of a civil citation by the code o nt compliance department. Except, however, that this section shall not bar the initiation of a prosecution before the code compliance oft special magistrate based on the unlawful construction of a structure below the base flood elevation level. Further, it will not bar prosecution of the minimum standards of use of a below base flood elevation structure as outlined in 44 CFR. After the effective date of the ordinance from which this section is originallX derived, any violation of this section, the vacation rental ordinance, a special vacation rental permit or permit conditions, shall be considered a new violation. Previous vacation rental leases or uses or the failure to bring enforcement against vacation rental violations pre -dating this section shall not act as laches or a bar to enforcement actions brought for new violations occurring after the effective date of the ordinance from which this section is derived. Occupancy agreements for RV spaces for a period of six months or more in duration by an individual RV owner within a particular RV park, other than in a designated storage area, shall be discontinued and shall not be entered into or renewed after the effective date of the ordinance from Version August 22, 2010 4:00 Page 1 1 of 16 which this section is originally derived. Each lease, sublease, assignment or other occupancy agreement for RV spaces of six months or more in duration in a particular RV park, other than in a designated storage area, shall be considered a new violation. Previous leases or agreement for occupancy or storage of recreation vehicles on RV spaces within a particular RV park, other than for storage in a designated storage area, shall be discontinued and not be renewed, extended or act as laches or bar enforcement actions brought for new violations occurring after the effective date of the ordinance from which this section is derived. Section 4. Article III is amended as follows: Sec. 8-63. - Legislative intent. Sec. 8-64. - Code compliance e ent officers designated. Sec. 8-65. - Violations of certain codes declared a civil infraction. Sec. 8-66. - Schedule of violations and penalties. Sec. 8-67. - Amendments to F.S. ch. 162. Sec. 8-68. - Notice to appear. Sec. 8-69. - Provisions supplemental. Sec. 8-63. - Legislative intent. It is the intention of the board of county commissioners through the adoption of this article to make available the supplemental code enforcement procedures of F.S. § 162.21, for use in code enforcement by the county. As used in this article, the term "code enforcement officer" means any designated employee or agent of the county whose duty it is to enforce codes and ordinances enacted by the board of county commissioners. Sec. 8-64. - Code compliance en€eteemenli officers designated. County code compliance enforcement inspectors under the direction of the code a fefee...ent director, are hereby designated code a at compliance officers for the purposes of F.S. § 162.21, and this article with all powers authorized by Florida law to enforce the codes of Monroe County. Sec. 8-65. - Violations of certain codes declared a civil infraction. It is hereby declared that the violation of a duly enacted ordinance or this Code is a civil infraction. All such ordinances and codes may be enforced through the citation procedure set forth in this article except: (1) Version August 22, 2010 4:00 Page 12 of 16 (2) The enforcement pursuant to F.S. §§ 553.79 and 553.80, of building codes adopted pursuant to F.S. § 553.73, as they apply to construction, provided that a building permit is either not required or has been issued by the county. For the purposes of this subsection, the term "building codes" means only those codes adopted pursuant to F.S. § 553.73; and Whenever else prohibited by law. Sec. 8-66. - Schedule of violations and penalties. All county codes and ordinances may be enforced through this article by means of a citation to the county court, except where prohibited by section 8-65. Any person cited may contest the citation in county court. A violation of a code or ordinance shall result in the assessment of a civil penalty of $200.00 if the person who committed the civil infraction does not contest the citation. If the person cited contests the citation and is adjudicated in violation, fails to pay the $200.00 civil penalty within the time allowed, or fails to appear in court to contest the citation, judgment may be entered against the person for an amount up to the maximum civil penalty, not to exceed $500.00. Persons receiving a citation shall either pay the $200.00 civil penalty to the clerk of circuit court's office, or request from the clerk a county court date to contest the citation, within ten days of receiving the citation excluding the date of the receipt. Any person who willfully refuses to sign and accept a citation issued by a code efifereemeI4 compliance officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S. §§ 775.082 or 775.083. Sec. 8-67. - Amendments to F.S. ch. 162. (a) A code e ent compliance officer is authorized to issue a citation to a person when, based upon personal investigation, the officer has reasonable cause to believe that the person has committed a civil infraction in violation of a duly enacted county code or ordinance and that the county court will hear the charge. Prior to issuing a citation, a code e ent. compliance officer shall provide notice to the person that the person has committed a violation of a code or ordinance and shall establish a reasonable time period within which the person must correct the violation. Such time period shall be no more than 30 days. If, upon personal investigation, a code compliance en fer-ee . ent officer finds that the person has not corrected the violation with the time period, a code e,-fer-eement compliance officer may issue a citation to the person who has committed the violation. A code a ent compliance officer does not have to provide the person with a reasonable time period to correct the violation prior to issuing a citation, and may immediately issue a citation, if the code compliance en for-ee ren fficer has reason to believe that the Version August 22, 2010 4:00 Page 13 of 16 (b) (c) violation presents a serious threat to the public health, safety or welfare, or if the violation is irreparable or irreversible. A code compliance o.. fer-ee ent officer shall issue a citation in a form prescribed by resolution of the board of county commissioners containing the following information: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) The date and time of issuance; The name and address of the person to whom the citation is issued; The date and time the civil infraction was committed; The facts constituting reasonable cause; The number or section of the code or ordinance violated; The name and authority of the code compliance event officer; The procedure for the person to follow in order to pay the civil penalty or to contest the citation; The applicable civil penalty if the person elects to contest the citation; The applicable civil penalty if the person elects not to contest the citation; and A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear in court to contest the citation, the person shall be deemed to have waived the right to contest the citation and that, in such case, judgment may be entered against the person for an amount up to the maximum civil penalty. After issuing a citation to an alleged violator, a code compliance eafer•eefnent officer shall deposit the original and one copy of the citation with the county court. A copy shall be provided to the alleged violator and a copy retained by the code enforcement officer. Version August 22, 2010 4:00 Page 14 of 16 Sec. 8-68. - Notice to appear. (a) (b) A code compliance en fe.-eef efA officer designated by the board of county commissioners may issue a notice to appear at a hearing conducted by a county court if the officer, based on personal investigation, has reasonable cause to believe that the person has violated a code or ordinance. The term "notice to appear" means a written order issued by a code compliance oaf ..,.e. ent officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. If a person issued a notice to appear under this section refuses to sign such a notice, the code compliance own officer has no authority to arrest such a person but may call upon a law enforcement officer to witness the issuance of the notice. The law enforcement officer may take enforcement methods that include, but are not limited to, those provided for in F.S. ch. 901. Prior to issuing a notice to appear, a code complianceeflfefe; officer shall provide written notice to the person that the person hits committed a violation of a code or ordinance and shall establish a reasonable time period within which the person must correct the violation. Such time period shall be no fewer than five days and no more than 30 days. If, upon personal investigation, a code compliance oafereement officer finds that the person has not corrected the violation within the prescribed time period, a code compliance enfe..,.o- ent officer may issue a notice to appear to the person who has committed the violation. A code compliance enfafeement. officer is not required to provide the person with a reasonable time period to correct the violation prior to issuing a notice to appear and may immediately issue a notice to appear if a repeat violation is found, or if the code compliance enferveffient officer has reason to believe that the violation presents a serious threat to the public health, safety, or welfare or that the violator is engaged in violations of an itinerant or transient nature, or if the violation is irreparable or irreversible. A violation of an itinerant or transient nature is one that takes place on a particular parcel of property for a period of less than five days that will be discontinued or will be moved to another parcel of property. Sec. 8-69. - Provisions supplemental. The provisions of this article are an additional and supplemental means of enforcing county codes and ordinances and may be used for the enforcement of any code or ordinance, except as provided in section 8-65. Nothing contained in this chapter shall prohibit the county from enforcing its codes and ordinances by any other means. Version August 22, 2010 4:00 Page 15 of 16 Section 5. Severability. If any section, paragraph, subdivision, clause, sentence or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity. Section 6. Repeal of Inconsistent Provisions. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the extent of said conflict. Section 7. Inclusion in the Code. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition to amendment thereto, and shall be appropriately renumbered to conform to the uniform marking system of the Code. Section 7. Filing. This ordinance shall be filed in the Office of the Secretary of State of Florida. Section 8. Effective Date. This ordinance will take effect immediately upon receipt of official notice from the Office of the Secretary of the State of Florida that this ordinance has been filed with said Office. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting held on the day of , 2010. Mayor Sylvia Murphy Mayor pro tem Heather Carruthers Commissioner Mario Di Gennaro Commissioner George Neugent Commissioner Kim Wigington MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, CLERK I: Deputy Clerk Mayor Sylvia Murphy MO pE COUNTY ATTORNEY AP ROVED AS FORM Version August 22, 2010 4:00 Page 16 of 16 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Division: Growth Management Bulk Item: Yes X No _ Department: Staff Contact Person/Phone #: Susan Grimsley 289-2500 AGENDA ITEM WORDING: Approval of Commencement Date Agreement pursuant to the lease between Monroe County and Sea Grape Apartments, Ltd. for property located in Marathon, Florida (RE#001 103560-000200). ITEM BACKGROUND: Monroe County and Sea Grape Apartments, Ltd. entered into a 99-year lease dated September 28, 2007, to construct 56 affordable housing dwelling units on this property. This Agreement establishes the commencement date of the 99-year lease term. PREVIOUS RELEVANT BOCC ACTION: August 15, 2007 — BOCC approved 99 year lease for Phase I with Sea Grape Apartments, LTD for 56 units. February 20, 2008 — Deed of Conservation Easement February 20, 2008 — Approval of Amendment No. 1 with Sea Grape Apartments, LTD extending the commencement date for construction to May 30, 2008 and for completion within 18 months. March 19, 2008 — Approval of Amendment No. 2 for Sea Grape Apartments, LTD amending the Lease to have Lessee make applications for building and environmental permits June 18, 2009 — Approval of Amendment No. 3 for Sea Grape Apartments, LTD extending the commencement date to December 31, 2008 and for completion within 18 months contingent upon financing and obtaining permits and easements. August 20, 2008 — Approval of 99 year lease for Phase II with Sea Grape II, LTD for 28 units. August 20, 2008 — Approval of Grant of Easement and Right of Use Agreement (Access Easement) August 20, 2008 - Approval of Resolution No. 247-2008 accepting 2 parcels of land from the Monroe County Land Authority for Phase II of the Sea Grape project August 20, 2008 — Approval of a Estoppel Agreement for Phase I with Sea Grape Apartments, LTD November 19, 2008 — Approval of Grant of Easement and Right of Use Agreement (Reciprocal Access and Recreational Easement) August 19, 2009 — Approval of Ground Lessor Estoppel Attornment with Sea Grape II, LTD CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: approval TOTAL COST: n/a INDIRECT COST: _ DIFFERENTIAL OF LOCAL PREFERENCE: BUDGETED: Yes No COST TO COUNTY: n/a SOURCE OF FUNDS: REVENUE PRODUCING: Yes No x AMOUNT PER MONTH Year APPROVED BY: County Atty x OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # This Instrument Prepared By: Richard E. Deutch, Jr., Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street Suite 2200 Miami, Florida 33130 RE No. 00103560-000200 COMMENCEMENT DATE AGREEMENT This Agreement is made as of May 19, 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida ("Lessor") and SEA GRAPE APARTMENTS, LTD., a Florida limited partnership ("Lessee"). WHEREAS, Lessor and Lessee have entered into a Lease dated September 28, 2007 for Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book 2323, Page 795, of the Public Records of Monroe County, Florida. WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the Lease. NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth below is true and accurate. Commencement Date: May 19, 2010 Initial Term Expiration Date: May 19, 2109 EXECUTED as a sealed instrument on the date first set forth above. (SIGNATURES APPEAR ON FOLLOWING PAGE) #341764 v I Commencement Date Agreement - Sea Grape Apartments 34756-0200 (COMMENCEMENT DATE AGREEMENT SIGNATURE PAGE) LESSOR: LESSEE: MONROE COUNTY, SEA GRAPE APARTMENTS, LTD., a municipal subdivision of a Florida limited partnership the State of Florida By: Its (Seal) ATTEST: Dainty L. Kolhage, Clerk BY: Deputy Clerk Witness 1 Witness 2 2 TCG SEA GRAPE, LLC, a Florida limited liability company, its General Partner MATTHEW GREER Its Manager The foregoing instrument was acknowledged before me 1 2010, by State of Florida, who is [ _ of MONROE COUNTY, a political personally known to me, or who [ drivers license as identification. day as subdivision of the ] has produced a Notary Public, State of Florida My Commission Expires: The foregoing instrument was acknowledged before me this 10 day of 2010, by MATTHEW GREER, as Manager of TCG SEA GRAPE, LLC, a lorida limited liability company, the General Partner of SEA GRAPE APARTMENTS, LTD., a Florida limited partnership, who is V] personally known to me, or who [ ] has produced a drivers license as identification. SUYLEN RODRIGUEZ NOTARY PUBLIC STATE OF FLORIDA Comm# DD979380 Expires 4/6/2014 0 Notary Pu Ic, Stat orida My Commission Explre : 4 2� I LEASE BEIIVEEN MONROE COUNTY "LESSOR" AND SEA GRAPE APARTMENTS, LTD. "LESSEE" DATED SEPTEMBER 28 , 2007 RE No. 00103560-000200 J:\A11 Practice\AA Legal Matters\M\A Monroe County Workforce Task Force\Leases\Sea Grape\Sea Grape Apartments, Ltd\Sea Grape Apartments, Ltd - Affordable 99 YEAR LEA9Ev7 from RD 3-23-07 r13 CLEAN.doc9/14/2007 5:03 PM Article Table of Contents �._ Page No. I Definitions 4 II Demised Premises g III Term g IV Rent 9 V Non -Subordination 10 VI Payment of Taxes and Utilities 10 VII Mechanics' Liens 13 VIII Governing Law, Cumulative Remedies 14 ix Indemnification of Lessor 14 X Insurance 16 XI Insurance Premiums 20 XII Assignment/Transfer 20 XIII Condemnation 28 XIV Construction 29 XV Mortgage Financing 31 XVI Default 36 XVII Repair Obligations 39 XVIII Additional Covenants of Lessee/Lessor 39 XIX Representations, Warranties of Title and Quiet Enjoyment and No Unlawful or Immoral Purpose or Use 41 XX Miscellaneous 42 Exhibit A Legal Description 5O Page 2 of 57 Exhibit B Property Depiction Exhibit C Commencement Date Agreement Exhibit D Annual Rent Payment Schedule Exhibit E Letter of Acknowledgment Exhibit F Modified or Additional Conditions Page 3 of 57 51 52 53 55 57 THIS LEASE made and entered into in Key West, Monroe County, Florida, on this _a_ day of September, 2007, by and between MONROE COUNTY (referred to as the "Lessor") and SEA GRAPE APARTMENTS, LTD., Florida limited partnership (referred to as the "Lessee"). RECITALS WHEREAS, Lessor is the owner in fee simple of the property located at what is now known as 7155 Overseas Highway, City of Marathon, Monroe County, Florida, and more particularly described on the attached Exhibit A (hereinafter "Property"); WHEREAS, it is Lessor's intent that the Propertybe developed to provide affordable housing for Monroe County; WHEREAS, Lessee desires to develop the Property for rental use fifty six (56) affordable housing units (provided allowed by County regulations and hereinafter the "Affordable Housing Units") for qualified owner or tenant occupants, as the case may be, using, among other financing sources, those made available through Section 42 Low -Income Housing Tax Credit program (LIHTC).; 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 the term of the ninety-nine (99) year lease. However, nothing in this Lease shall (a) permit the Lessor to require a Lessee to comply with provisions of local ordinances that are in conflict with LIHTC requirements applicable to the financing of the project, or (b) materially and adversely alter the obligations or rights of Lessee under this Lease. Page 4 of 57 "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 orprojects, such as the one contemplated herein, 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 the Affordable Restrictions, as amended from time to time (though not in conflict with LIHTC requirements). Moreover, Lessor may establish in its Affordable Restrictions "means" or "assets" criteria that limit potential buyer or rental pools. Any such amendment shall not increase Initial Lessee's responsibilities as set forth herein. It is the intent and purpose and shall be the effect of this Lease and any Affordable Restrictions to ensure that the affordability of Affordable Housing Units and dedicated real property upon which they are located is maintained and enforced such that any administrative rule, policy or interpretation thereof, made by Lessor or its designees relating to the maximum total amount of consideration and cost permitted to be in anyway involved in a purchase or rental transaction (including but not limited to purchase price, lease assignment fees, rents or any other compensation given or received in or "outside" of a related transaction) shall never exceed the affordability criteria reasonably established by Monroe County for the dwelling units involved. In every case, the construction and interpretation of terms, conditions and restrictions imposed by this Lease and the Affordability Restrictions shall be made in favor of ensuring that long term affordability benefits for the respective housing resources inure to the benefit of Monroe County, its economy and its community character. In all cases of conflict between local and federal LIHTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal (LIHTC) requirements without being deemed in breach of this Lease or the Affordable Restrictions. "Association" shall mean any condominium, homeowners or similar community association customarily used in planned developments (whether or not expressly contemplated or authorized herein) to manage certain aspects of community or planned development living (e.g., infrastructure management, rules and regulations, enforcement mechanisms and recreational facilities). "Commencement Date" shall mean the date when Initial Lessee receives a Certificate of Occupancy for the first Affordable Housing Unit. Page 5 of 57 "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 ExhibitA 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 SEA GRAPE APARTMENTS, LTD., a Florida limited partnership, developer and future manager of the Affordable Housing Units. "Lease" shall mean this lease for the creation of the Affordable Housing Units on the Demised Premises, as may be amended from time to time by the parties. It is expressly contemplated and intended by Lessor, as fee title holder to the Demised Premises, and agreed to and accepted by Lessees, that anylimitations, restrictions and/or other covenants of any nature, whether established pursuant to this Lease or bythe Affordable Restrictions, be given the full force and effect of enforceable covenants running with the land, equitable servitudes and all other cognizable legal and equitable real property conventions so as to ensure the overall public affordable housing purposes intended to be served, including appropriate application of cumulative enforcement theories. "Lease Year" shall mean the twelve (12) month period beginning on the Commencement Date and each twelve (12) month period thereafter throughout the Term of this Lease. "Lessor" means MONROE COUNTY, or its assigns or designees. Lessor as used herein and where the context requires, shall mean an agency or party designated by the Lessor, by written notice to all parties, to administer or enforce some or any portion of the provisions of this Lease or the Affordable Restrictions. "Lessee" means the Initial Lessee and its successors and assigns, including the Association created by Initial Lessee for the Unit owners/tenants, if any, as well as the individual Unit owners/tenants. "Limited Partner" for this Lease means Wachovia Affordable Housing Community Development Corporation and its successors and assigns, or any other such limited partner designated by the Lessee. "Project" shall mean the required development of the Demised Premises, primarily the required construction of Affordable Housing Units as set forth in Article XIV, but also including related infrastructure, securing of required development approvals and permits, financing for the construction of the Affordable Housing Units, marketing/renting of the Affordable Housing Units and creation of any required governing Association. Page 6 of 57 "Related Agreements" shall mean any purchase and sale or other agreement entered into with Monroe County contemporaneously and in conjunction with this Lease and which is recorded. Related Agreements made to apply to this Lease are set forth in Exhibit F. "Rent" shall mean any sum of money due to the Lessor under this Lease for any reason. The term Rent as used herein, should not be misconstrued to preclude definition and distinguishing of rent, rental rates and other such other terms as may be provided for in Subleases and/or the Affordable Restrictions. "Sale" and "Sell" as used herein shall be broadly and liberally construed so as to encompass, where contextually appropriate, any ground subleasing, sale, grant, assignment or other conveyance of an interest in any portion of the Demised Premises authorized pursuant to this Lease, but excluding any rental of an Affordable Housing Unit (which may be more particularly discussed herein or in the Affordable Restrictions) and any granting of 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 Premises, including rental agreements with tenants or renters 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. However, sublease forms which conform to LIHTC or Florida Housing Finance Corporation requirements and that otherwise conform to the Affordable Restrictions need not be approved by the Lessor. "Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an individual Affordable Housing Unit owner or tenant who, as of the date such person(s) acquires( ) or renews their interest(s) in the Affordable Housing Unit, qualifies for "Affordable Housing" as defined under Chapter 9.5 of the Monroe County Code and who is gainfully employed at the time of their rental. Additionally, except as may be otherwise permitted by this Lease, in order to remain eligible to renew their sublease or rental agreement and to reside in their Affordable Housing Unit into retirement, in addition to complying with any otherwise applicable provisions in the Affordable Restrictions, renters or tenants of all Affordable Housing Units shall be encouraged to be and must remain gainfully employed. However, no gainful employment aspiration or requirement expressed herein or expressed in the Affordable Restrictions shall preclude or inhibit Lessee's Page 7 of 57 compliance with LIHTC or other state or federal requirements or obligations, "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.oi Lessor's Demise. Upon the terms and conditions hereinafter set forth, and in consideration of the payment of the Rents and the prompt and full performance by the Initial Lessee of these covenants and the terms and conditions of any Related Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and demise to the Initial Lessee (and permitted successor Lessees) and the "Initial Lessee" hereby leases from the Lessor, the following described premises, situate, lying andbeing in Monroe County, Florida: See Attached Exhibits A and B Section 2.02 Conditions. The demise is likewise made subject to the following: (a) Conditions, restrictions and limitations, if any, now appearing of record; (b) Zoning ordinances of the County of Monroe, State of Florida, and any other applicable governmental body now existing or which may hereafter exist by reason of any legal authority during the Term of this Lease; and (c) The proper performance by the Lessee of all of the terms and conditions contained in this Lease, the Affordable Restrictions and Related Agreements, if any (for applicability see Exhibit F to this Lease). Section 2.03 Rental -Only Use. Contrary provisions herein notwithstanding the demised premises shall be used for Affordable/Employee Housing rental uses throughout the Term unless the parties to the Lease otherwise agree in a publicly recorded writing. In all cases of conflict between local and federal LIHTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal LIHTC requirements without being deemed in breach of this Lease or the Affordable Restrictions. ARTICLE III Term Section.g.ol Term. To have and to hold the Demised Premises for a term of ninety - Page 8 of 57 nine (99) years commencing on the Commencement Date, and ending ninety-nine (99) years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter provided (the "Termination Date"). Lessee shall be given possession on the Effective Date and the terms and conditions set forth herein shall be binding on the parties as of the Effective Date. Lessee shall have the right to occupy the Demised Premises as of the Effective Date in order to allow Lessee to commence construction, as well as other activities related to the development and construction of the Project. As herein set forth, the Term will not commence until the first Affordable Housing Unit is completed and a certificate of occupancy has been issued for that Affordable Housing Unit, said date to be evidenced by the Commencement Date Agreement that the parties will upon completion of construction of the first Affordable Housing Unit execute in substantially the same form as that set forth in Exhibit C hereto. ARTICLE IV Section a.oi 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 of Ten Dollars ($1o.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 an Association by Initial Lessee as may be authorized under this Lease, Lessor agrees to provide written notice of the Annual Base Rent to the Association at least ten (1o) 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 maybe similar to that in Exhibit D, hereto. Annual Base Rent maybe paid in advance for the entirety of the term upon which Lessee may record a notice of prepayment at its expense. Section 4.o2. All amounts payable under Section 4.oi 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 a.o�. 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 Page 9 of 57 i ownership, leasing, operation, maintenance, repair, rebuilding, use or occupation thereof. Section a.oa. 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 (io%) percent of any amount due from Lessee to Lessor which is not paid within ten (io) days of the payment due date for any sums due for Rent and within thirty (3o) 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 for dishonored checks pursuant to 125.0105, Florida Statutes, and/or any other applicable law. In addition, Lessor shall be reimbursed by Lessee for any costs incurred by Lessor as a result of a payment instrument being dishonored (e.g., legal fees). ARTICLE V Section s.oi Non -Subordination. Notwithstanding anything to the contrary contained in this Lease, the fee simple interest in the Demised Premises shall not be subordinated to any leasehold mortgage, lien or encumbrance of any nature. Furthermore, the Lessor's right to receive payment or performance under the terms of this Lease or adherence to any of its conditions or to the Affordable Restrictions (or performance under or adherence to the terms of any Sublease or related instrument) shall not be subordinated to any debt or equity financing, leasehold mortgage, lien, encumbrance or obligation of any nature whatsoever. ARTICLE VI Section 6.oi 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, Page 10 of 57 imposed upon, or grow or become due and payable out of or in respect of, or become a lien on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee from the sale or rental of the Affordable Housing Units to Sublessees, or be associated with any document (to which the Lessee is a party) creating or transferring an interest or estate in the Demised Premises. With regard to special assessments, if the right is given to pay either in one sum or in installments, Lessee may elect either mode of payment and Lessee's election shall be binding on Lessor. Section 6.o2 Sublessee's Obligations. As additional Rent, any Sublessee, unless Lessee fulfills all such obligations pursuant to Section 6.oi, above, 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 alien 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 (if contemplated or otherwise authorized under this Lease or the Affordable Restrictions), 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.oi Obligations Altered. Nothing herein shall require the Lessee to pay municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner of the fee of the Demised Premises; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the commencement of the term hereof shall be altered so as to cause the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed and imposed, wholly or partially as a capital levy, or otherwise, on the rents received therefrom, or of any tax, corporation franchise tax, assessments, levy (including, but not limited to any municipal, state or federal levy), imposition or charge, or anypart 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 orbased, shall be paid and discharged by the Lessee. All rebates on account of any taxes, rates, levies, charges or assessments required to be paid shall belong to Lessee. Section 6.o4Mode of Pa, ent. 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 (3o) 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, Page 11 of 57 provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes the Lessor or the applicable governmental agency with a bond with a surety made by a surety company qualified to do business in the State of Florida or pays cash to a recognized escrow agent in Monroe County, one and one half (1 I/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 determined, and which written notice and bond or equivalent cash shall be given by the Lessee to the Lessor, not later than sixty (6o) days before the tax item or items proposed to be contested would otherwise become delinquent. Section 6.0r, 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 bythe Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding the foregoing, Lessee shall have the right to contest any taxes and assessments levied against Lessee in accordance with paragraph 6.o4, above; 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.o6 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 daywhen the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the election of the Lessor to pay such taxes shall not waive the default thus committed by the Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any taxes and assessments levied against Sublessee; and provided Sublessee files the appropriate documentation to contest said tax or assessment, Sublessee shall not be in default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the assessment measures and collection remedies lawfully available to any taxing authority. Section 6.o7 Proration. The foregoing notwithstanding, the parties hereto Page 12 of 57 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.o8 Appraiser to Respect Effect of Affg rdable 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 portion(s) appraised, or where permissible by state law, "income approach" or other method of calculation. ARTICLE VII M) M Section 7.oi Ng 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 whether or not the improvements are made with the consent of the Lessor. 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, or both where the Affordable Housing Unit is a rental unit, within thirty (3o) days after the Lessee or Sublessee shall have been given written notice of such a claim having been filed, or within thirty (3o) days after the Lessor shall have been given written notice of such claim and shall have transmitted written notice of the receipt of such claim unto the Lessee or Sublessee, as the case may be, (whichever thirty (30) day period expires earlier) to cause the respective portion of the Demised Premises to be released from such claim, either by payment or by the posting of bond or by the payment to a court of competent jurisdiction of the amount necessary to relieve and release the relevant portion of the Demised Premises from such claim, or in any other manner which, as a matter of law, will result, within such period of thirty (3o) 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 (3o) days, so as to cause the affected portion of the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim. Section 7.og Lessee's Default. If the Lessee shall fail, refuse, or neglect to perform its obligations as required in this Article, then the Lessor may, but shall not be required to, pay any sums required to cause the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor, upon the Page 113 of 57 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 Z.oa Suble se '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 requiredto, pay anysums requiredto cause the Demised Premises andthe Lessor's interest therein to be released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall not waive the default thus committed by the Sublessee. ARTICLE VIII Section 8.oi 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.o2 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 any one remedy in advance of any other shall not result in waiver or compromise of any other remedy. ARTICLE IX Indemnification of Lessor Section 4.oi 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 Page 24 of 57 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 anyway related to the Demised Premises, except to the extent such claims may be caused by the gross negligence or intentional misconduct of the Lessor (or its agents or employees in the conduct of work for or at the direction of the Lessor) with respect only to any duty or obligation Lessor expressly assumes with respect to any portion of the Demised Premises, none of which duties and obligations are so assumed herein. If it becomes necessary for the Lessor to respond to any claim, demand or unanticipated matter or to defend any action seeking to impose any such liability, the Lessee will pay the Lessor all costs of court and reasonable attorneys' fees incurred by the Lessor in effecting and preparing for such response or defense in addition to any other reasonable sums which the Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor in any proceeding in which such claim is asserted. Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise provided in Section 12.01, upon completion of the construction and sale or assignment of any portions of the Project in accordance with this Lease if contemplated and authorized as a home -ownership project, 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 g.02 Insurance. On the Effective Date the Lessee shall cause to be written and put in full force and effect a policy or policies of insurance as noted in Article X insuring the Lessee against any and all claims and demands made by any person or persons whomsoever for death, injuries or damages received in connection with the possession, operation and maintenance of the Demised Premises. All such policies shall name the Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as their respective interests may appear, as the persons insured by such policies. Any loss adjustment shall require the written consent of both the Lessor and Lessee. Page 15 of 57 Section Q.o,4 Tolicy Limit Chan es.. 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 ioxn Property Insurance. From and after the Effective Date, the Lessee will keep insured any and all buildings and improvements upon the Demised Premises against all loss or damage by fire, flood and windstorm, together with "all risks" "extended coverage," which said insurance will be maintained in an amount sufficient to prevent any party in interest from being or becoming a co-insurer on any part of the risk, which amount shall not be less than the full Replacement Cost value of the relevant portions of the Demised Premises, and all of such policies of insurance shall include the name of the Lessor as an additional insured and shall fully protect both the Lessor and the Lessee as their respective interests may appear. In the event of destruction of buildings or improvements by fire, flood, windstorm or other casualty for which insurance shall be payable and as often as such insurance money shall have been paid to the Lessor and the Lessee, said sums so paid shall be deposited in a joint account of the Lessor and the Lessee in a bank designated by the Initial Lessee, Lessee or Lessee's Mortgagee and located in the County in which the Demised Premises is located, and shall be made available to the Lessee for the construction or repair (including any modification to the improvements sought by the Lessee and approved in writing bythe Lessorwith Lessor's approval not unreasonably withheld), as the case may be, of anybuilding or buildings damaged or destroyed by fire, flood, windstorm or other casualty for which insurance money shall be payable and shall be paid out by the Lessor and the Lessee from said joint account from time to time on the estimate of any reliable architect licensed in the State of Florida officially overseeing of such reconstruction and repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction or repair and at a reasonable cost therefor; provided, however, that the total amount of money necessary for the reconstruction or repair of any building or buildings destroyed or damaged has been provided by the Lessee for such purpose and its application for such purpose assured. In the event of the destruction or damage of the improvements located on the Demised Premises, or any part thereof, and as often as any portion of said Demised Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the Lessee shall, within fifteen (15) months (or twenty-four (24) months for a substantially total loss) from the date of such damage or destruction, rebuild and repair the same in such manner that the buildings or improvements so rebuilt and repaired, and the personal property so replaced or repaired, shall be of the same or of a value higher than were the buildings or improvements and the personal propertyprior to such damage or destruction, and Lessee shall diligently prosecute the reconstruction or repairs without delay and have Page 16 of 57 the same rebuilt and ready for occupancy as soon as reasonably possible after the time when the loss or destruction occurred The 15-month period (or twenty-four (24) month period for a substantially total loss) 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 (w) 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 (3o) days after the occurrence of the destruction. In the event this Lease has been assigned to an Association contemplated or authorized under this Lease or the Affordable Restrictions, the Association must obtain any necessary vote to terminate. In the event of termination, there shall be no obligation on the part of Lessee to restore or repair the improvements on the Demised Premises, nor any right of the Lessee to receive any proceeds collected under any insurance policies covering the improvements. If Lessee elects not to terminate this Lease in the event of destruction during the last ten (1o) 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 oo-oi] 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 (i) year after project completion] Each Occurrence $1,000,000 Contractual Liability $1,000,000 Page 17 of 57 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 io.o3 Environmental Impairment KURonsibility. The Lessee and/or its contractors acknowledge that the performance of this Lease is, or may be, subject to Federal, State and local laws and regulations enacted for the purpose of protecting, preserving or restoring the environment. The Lessee shall, at the sole cost of the Lessee or its contractors, be responsible for full compliance with any such laws or regulations. Section 10.04 Other Insurance. Lessee shall maintain such other insurance and in such amounts as may from time to time be reasonably required bythe 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 i%as Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage created pursuant to the provisions of Article XV elects, in accordance with the terms of such mortgage, to require that the proceeds of any casualty insurance be held by and paid out by the mortgagee, then such payment may be made, but in such event, it shall still be obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the manner set forth in this Article to assure complete payment for the work of reconstruction and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by Sublessee or Lessee. Section io.o6 Damages: InsuranceProceeds: 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. Absent circumstances reasonably excused under the conditions set forth in paragraph 14.03, in the case of the Lessee not entering into the reconstruction or repair of the building or buildings within a period of six (6) months from the date of payment of the loss, after damage or destruction occasioned by fire, windstorm, flood or other cause, and diligently prosecuting the same with such dispatch as maybe necessary to complete the same in as short a period of time as is reasonable under the circumstances after the occurrence of such damage or destruction, then the amount so collected, or the balance thereof remaining in the joint account, as the case maybe, shall be paid to the Lessor and it Page 18 of 57 will be at the Lessor's option to terminate the Lease, unless terminated by lessee within the last ten (io) 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 ioro7 Direct &pa ynent. The foregoing notwithstanding, in the event the insurance proceeds are the sum of One Hundred Thousand and oo/ioo Dollars ($ioo,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 io.o8 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 anypart thereof shall in anyway 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 (3o) 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. Notwithstanding anything contained herein to the contrary, in the event an authorized 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 (if this project is expressly authorized as a home -ownership project); then, in such event Sublessees shall secure the above -described insurance coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled to require replacement cost and other customary and reasonable insurance coverage(s) at least but only to the full replacement value of any Sublessees' and/or any governing Association's insurable interest in the Demised Premises. Any parties who subsequently become holders of any title or possessory interest to a portion of the Demised Premises, shall upon request provide, in a form satisfactory to Lessor, proof of customary and reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor as set forth in this Article X, at least to the extent and value of that subsequent interest holder's insurable interest. The same or similar procedures for the use and application of insurance proceeds asset forth above maybe 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 Page 19 of 57 holders. Future interest holders (including all Sublessees) shall name Lessor as an additional insured on any required insurance policies. ARTICLE XI Insurance Premiums Section ii.oi Insurance Premiums. The Lessee shall pay premiums for all of the insurance policies which the Lessee is obligated to carry under the terms of this Lease. In the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the right, but not the obligation, without notice to Lessee, to procure such insurance and/or pay the premiums of such insurance, in which case Lessee shall repay Lessor immediately upon demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies with respect to procurement of such insurance and/or payment of such insurance premiums in the event a future subsequent partial interest holder (e.g., Sublessee, Association) fails to obtain and pay for the necessary insurance. ARTICLE XII Assiznment/Transfer Section moi Asgienment 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 rent to moderate or lesser income qualified third parties, as defined in the Affordable Restrictions. Therefore, the Affordable Housing Units may be rented and occupied without the Initial Lessee obtaining consent from Lessor for such 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, but shall ultimately remain responsible for performance of such duties by any designated property manager. (NOTE: Following strike -through to be retained for record purposes.] Page 20 of 57 Al ike Wks, as Stook maybe P@Mi*@dbYAF6@iexA1 UPS" tmwfeosak 9669"Roy fW@ pelpeem ' Initial Lessee may subsequently be authorized by Lessor to assign its interest in this Lease for any portions of the Demised Premises 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 maybe 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 Page 21 of 57 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. Lessor shall have fifteen (15) business days from receipt of said documents to review and object to any contents thereof. In the event Lessor fails to provide written notice of its consent or denial in regard to said documents, said failure shall be deemed acceptance of the documents. Lessor shall have the right to assign any of its duties and rights related to the assignment of Subleases, i.e. finding qualified ptrrelaser er reeaIes�-- renters in the case of rental units (unless the rental units are owned by Initial Lessee (or a Lessor -approved subsequent assignee of Initial Lessee's interests) 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 (as they maybe automatically subordinated to LIHTC requirements per other provisions of this Lease), 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. Lessee agrees to allow Lessor or its designee to provide lists of potential qualified renters of the Affordable Housing Units. 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 only where Lessor subsequently provides authority to do so in writing or under the Affordable Restrictions. Notwithstanding anything contained herein to the contrary, all purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's requirements of moderate or lesser income affordable housing, adjusted for family size, and any other applicable Affordable Restrictions. In all cases of conflict between local and federal LIHTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal requirements without being deemed in breach of this Lease or the Affordable Restrictions. Initial Lessee shall upon Lessor's request provide verification in a form and manner reasonably determined by Lessor that purchasers/sublessees/tenants for all Affordable Housing Units meet the requirements herein. If Lessor is entitled to a reservation for initial purchase or assignment of the rights to purchase all or a portion of the newly completed Affordable Housing Units, such right and related procedures may be Page 22 of 57 set forth or referenced in Exhibit F to this Lease. Section 12.oR Assignmentaransfer by Subl_essm. Where Lessor subsequently provides authority in writing or under the Affordable Restrictions for the Affordable Housing Units to be sold as homeownership units, 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 followthe 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 ReauiredNotice of Restrictions. Any conveyance, lease, assignment, grant or other disposition of any interest made with respect to any portion of the Demised Premises, including but not limited to any recorded Association governing documents, other than those mortgage interests provided for in Article XV, shall contain the following required Notice of Restrictions in a conspicuous location on the upper one-half of the first page of the relevant instrument effectuating the interest in bold capital typed letters greater than or equal to 14 point font: 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 SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT NOT LIMITED TO RIGHTS OF FIILST REFUSAL, USE, OCCUPANCY, INCOME, MEANS, RESALE PRICE, RENTAL AND MORTGAGE LEWTATIONS, INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL RECORDS BOOK _, PAGE _ OF THE PUBLIC RECORDS OF MONROE COUNTY, FLORIDA. The book and page numbers of the first recorded page of this Lease and the first recorded page of any recorded 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. Right of First Refusal., Unless otherwise subsequently authorized in writing or by the Affordable Restrictions or unless otherwise as set forth in subsection e., below, or in another provision herein, only rentals of Affordable Housing Units are contemplated. However, where Lessor subsequently provides authority in writing or under the Affordable Page 23 of 57 Restrictions for the Affordable Housing Units to be sold as homeownership units 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. b. Lessor shall have for thirty (3o) days from the date of receipt of the written Transfer Notice to exercise and/or to assign a right of first refusal granted hereunder to purchase the Affordable Housing Unit or to find or identify to the selling party in writing a qualified purchaser who meets the income and other requirements for purchasing the Affordable Housing Unit. Additionally: 2. The total sales price for all interests to be transferred shall be the purchase price set forth in the Transfer Notice, which shall not exceed the highest price permitted under the Affordable Restrictions. All additional terms of the contract shall be consistent with the Affordable Restrictions. Sublessee hereby agrees to execute a contract with a pre -qualified purchaser identified by the Lessor (or the Lessor if it exercises its right of first refusal) and to cooperate with reasonable closing procedures not in conflict with the Affordable Restrictions. 2. In the event Lessor finds a qualified purchaser, Lessor will assist in coordinating the closing on the Affordable Housing Unit. The closing shall be scheduled to occur within seventy- five (75) days from the effective date of the contract forthe sale of the Affordable Housing Unit, unless extended by the mutual agreement of the parties and Lessor. Should Lessor exercise its right of first refusal, it shall close under the same schedule set forth herein. C. In the event Lessor elects not to purchase or fails to identify a qualified purchaser who enters into a purchase contract within thirty (3o) 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 Page 24 of 57 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, delayed or conditioned. 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 deems necessary to verify purchaser/Sublessee qualifications. All purchase and sale contracts shall be deemed to be contingent on the buyer and transaction being qualified under the Affordable Restrictions. Lessor and the proposed parties to a transfer transaction may agree to additional time periods necessary to verify full compliance with all aspects of the Affordable Restrictions. In no case shall Lessor, or its designees, be deemed to waive with respect to any party any requirement applicable to that party under the Affordable Restrictions where it turns out that such requirement was not in fact met, true or complied with. Lessor reserves, to itself and to its designees, all legal and equitable rights it deems necessary or appropriate to ensure that all portions of the Demised Premises are used for Affordable Housing, the purpose for which theywere 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 theAffordable Restrictions for moderate orlesser income, orto 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) dayperiod described in Paragraph b. above, and before Sublessee has found a qualified purchaser, Lessor may, but is not obligated to, continue the search Page 25 of 57 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 anyAffordable Housing Unit sold as an affordable "ownership" and "occupancy" Affordable Housing Unit which is made the subject of any unauthorized offer to rent, orwhich 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 lesser of (i) the purchase price paid by the offeror, or (ii) 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 (which procedures shall not, however, conflict with Initial Lessee's intended management of the Demised Premises as a LIHTC property as contemplated herein). In such case, a Sublessee may rent their Unit so long as all rental agreements follow the guidelines and procedures set forth herein and in the Affordable Restrictions and any LIHTC requirements, including but not limited to, providing Monroe County with a copy of the proposed rental agreement for review and approval, unless this requirement is otherwise waived or modified in writing by Lessor. Additionally, the rental agreement must include a copy of any 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 (i) year, or containing an automatic renewal term that would frustrate Lessor's rights or continued affordability expectations established under this Lease or the Affordable Restrictions. Additionally, in the event a tenant has been cited for a violation of the rules and regulations of the Association more than twice in any calendar year, Sublessee hereby agrees not to renew said lease without first obtaining the approval of the Association Board of Directors, and said approval may be withheld in their sole and absolute discretion. Any rental agreement shall contain the following warning prominently set forth in writing: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83 FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'S Page 26 of 57 PERSONAL PROPERTY. Section 12.o6 Assignment by Lessor. This Lease shall be 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.o7 Death of a Unit Owner. In the event the Owner of an Affordable Housing Unit dies, Lessor shall, unless for good cause shown, consent to a transfer of the leasehold interest to the spouse, child(ren) or other heirs, devisees, legatees or beneficiaries of the Affordable Housing Unit Owner provided that such persons state, in writing, under oath that they have reviewed the terms of this Lease and any related documents, and that they understand and accept the terms of this Lease by signing an acknowledgement, which is substantially in a form similar to that attached hereto as Exhibit E. All spouses, heirs, devisees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable satisfaction that they qualify for ownership and/or occupancy of an affected Affordable Housing Unit as provided for under this Lease and in the Affordable Restrictions. All estates and leasehold or other interests granted in or conveyed with respect to any of the Demised Premises do not extend to any degree so as to limit or inhibit the intent and operation of this Lease and the Affordable Restrictions, it being expressly and irrevocably accepted on behalf of all future Sublessees and all those who would or might succeed to their interests, that these Demised Premises and each and every portion thereof, for the entire Term of this Lease, are to be used as affordable housing according to the Affordable Restrictions. In the event the spouse, heirs, devisees, legatees or beneficiaries of a deceased Owner do not meet the requirements for affordable housing, such persons shall not occupy the premises and shall not be entitled to possession, except and only to the extent that the Lessor permits same, under conditions that it determines furthers the goals and public purposes of this Lease and the Affordable Restrictions. Therefore, in such event, the heirs of the decedent shall, if required by Lessor, transfer their interest in the Affordable Housing Unit in accordance with the provisions of this Article XII and cooperate with the Lessor in accomplishing same. It is the intent of this Lease, to the full extent Florida law permits, that constitutional homestead rights not be construed to inhibit or limit the intended operation of this provision. Section 12 o8 Administrative Fees. With the exception of the initial sales by Initial Lessee, where the Lessor authorizes sales of units for individual home -ownership purposes, the Lessor or its designee shall be entitled to charge three and one-half percent (31/2 %) of the Purchase Price (gross compensation however described) for any transferred interest (other than simple security mortgage interests or rental agreements) in which Lessor identified the purchaser, as an administrative fee for coordinating the closing on any Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of closing. This fee does not include other seller and buyer closing related costs such as title insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions, Page 27 of 57 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 (1 V2 %) of the Purchase Price for review of the contract and assistance with coordinating the closing on the Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its designee shall be authorized to designate closing, escrow and title agents involved in all transactions involving interests subject to this Lease. After the initial sale of each Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from time to time, establish, promulgate, revise and/or waive all or part of such fees related to the administration of this Lease and any Subleases, but in no event may Lessor increasethe amount of the administrative fee to an amount in excess of three and one-half percent (3 1/2 %) for an owner who purchased his or her Affordable Housing Unit without actual, constructive or regulatory notice of the potential applicability of a greater percentage fee. ARTICLE XIII Condemnation Section imoi 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 (3o) days after such award has been made, then the matters in dispute shall be determined in accordance with the rules of the American Arbitration Association. Such determination made by the arbitration shall be binding on the parties. If the legal title to the entire Demised Premises be wholly taken by condemnation, the Lease shall be cancelled. Section i.-A.02 Apportionment. Although the title to the building and improvements placed by the Lessee upon the Demised Premises will on the Termination Date pass to the Lessor, nevertheless, for purpose of condemnation, the fact that the Lessee placed such buildings on the Demised Premises shall be taken into account, and the deprivation of the Lessee's use (and any use of a Sublessee) of such buildings and improvements shall, together with the Term of the Lease remaining, be an item of damage in determining the portion of the condemnation award to which the Lessee or Sublessee is entitled. In general, it is the intent of this Section that, upon condemnation, the parties hereto shall share in their awards to the extent that their interests, respectively, are depreciated, damaged, or destroyed by the exercise of the right of eminent domain. In this connection, if the condemnation is total, the parties agree that the condemnation award shall be allocated so that the then value of the property, as though it were unimproved property, shall be allocated to the Lessor, and the then value of the building or buildings thereon shall be allocated between the Lessor and Lessee after giving due consideration to the number of years remaining in the Term of this Lease and the condition of the buildings at the time of Page 28 of 57 condemnation. The Lessee shall not be precluded from any condemnation remedy otherwise available to it bylaw. ARTICLE MV (a) Initial Lessee shall commence construction of the Project by the earlier of one hundred twenty (12o) days after the issuance of the building permits for the construction of the Project or November 1, 2oo7, and shall substantially complete construction of all fifty six (56) Affordable Housing Units within eighteen (18) months thereafter. The foregoing limitation of time for the completion of the Project maybe extended by written agreement between the parties hereto. (b) During the course of construction of the Project, Initial Lessee shall provide to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in their possession or under their control where such information is subject to public disclosure under the provisions of Chapter 119, F.S., or successor or supplemental statutes. However, nothing contained herein shall be construed to render documents or records of Initial Lessee or any other persons that would not be deemed public records under Chapter 119 to be such records only because of this provision. Lessees (but not individual sublessees occupying an Affordable Housing Unit as their primary residence) shall maintain all books, records, and documents directly pertinent to performance under this Lease in accordance with generally accepted accounting principles consistently applied. The County Clerk, State Auditor, or a designee of said officials or of the Lessor, shall, during the term of this Agreement and for a period of five (5) years from the date of termination of this Agreement, have access to and the right to examine and audit any Records of the Lessee involving transactions related to this Agreement. (c) The Project shall be constructed in accordance with the requirements of all laws, ordinances, codes, orders, 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 Page 29 of 57 at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be construed to obviate or lessen any requirements for customary development approvals from any permitting authority, including the Lessor. Nothing in this Lease shall be construed as the Lessor's delegation or abdication of its zoning authority or powers and no zoning approval that Initial Lessee may require to complete its performance under this Lease has been or shall be deemed agreed to, promise or contracted for by this Lease. (e) Construction of the Project on the Demised Premises prior to and during the Term of this Lease shall be performed in a good and workmanlike manner, pursuant to written contracts with licensed contractors and in accordance with any and all requirements of local ordinances and with all rules, regulations and requirements of all departments, boards, officials and authorities having jurisdiction thereof. It is understood and agreed that the plans and specifications for all construction shall be prepared by duly qualified architects/engineers licensed in the State of Florida. (f) 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 or the Initial Lessee or Lessee in his or her individual capacity, and no member, officer, agent or employee of Monroe County or the Initial Lessee or Lessee shall be liable personally on this Lease or be subject to any personal liability or accountability by reason of the execution of this Lease. (g) Initial Lessee agrees that it will not discriminate against any employees, applicants for employment, prospective Sublessees or other prospective future subinterest holders or against persons for any other benefit or service under this Lease because of their race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap where the handicap does not affect the ability of an individual to perform in a position of employment, and to abide by all federal and state laws regarding non-discrimination. (h) Lessee shall be entitled during the full term of this Lease to make alterations to the Demised Premises in accordance with the requirements set forth in sub -paragraph (e), above. 14.o2 Access to the Project and Inspection. The Lessor or its duly appointed agents shall have the right, at all reasonable times upon the furnishing of reasonable notice under the circumstances (except in an emergency, when no notice shall be necessary), to enter upon the common area of the Leased Premises to examine and inspect said area to the extent that such access and inspection are reasonably justified to protect and further the Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county Page 30 of 57 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. 4-m Force 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 bywar, revolution, labor strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, labor disputes, governmental restrictions, embargoes, litigation (excluding litigation between the Lessor and the Initial Lessee), tornadoes, hurricanes, tropical storms or other severe weather events, or inability to obtain or secure necessary labor, materials or tools, delays of any contractor, subcontractor, or supplier, or unreasonable acts or failures to act by the Lessor, or any other causes beyond the reasonable control of the Initial Lessee. The time of performance hereunder shall be extended for the period of any forced delay or delays caused or resulting from any of the foregoing causes. 14.04 Easements. Lessee shall be authorized to grant reasonable and necessary easements for access and utilities customary for similar land uses and construction projects in Monroe County subject to Lessor's attorney's review and approval for substance and form of easement instruments, which approval shall not be unreasonably withheld, delayed or conditioned. Lessor shall make objection to any proposed easement instruments within fifteen (15) business days of receipt of copies thereof, or Lessor's approval shall be deemed granted. ARTICLE XV Mortgage Financing Section it of Construction Financing By Initial Lessee. Initial Lessee shall have the right to mortgage its interests in the Demised Premises. (a) The Initial Lessee shall have the right to encumber by mortgage or other proper instrument Initial Lessee's interest under this Lease, together with all buildings and improvements placed by Initial Lessee on the Demised Premises, to any investor group or entity formed and lawfully authorized to participate in a LIHTC financing arrangement, a Federal or State Savings & Loan Association, Bank or Trust Company, Insurance Company, Pension Fund or Trust (or to another private lender so long as the terms and conditions of the financing from private lender are on substantially similar terms to those then existing by the other lenders referred to in this Section), or to similar lending institutions authorized to make leasehold mortgage loans in the State of Florida, or to any public or quasi -public lender. (b) Until the time any leasehold mortgage(s) shall be satisfied of record, when giving notice to the Initial Lessee with respect to any default under the provisions of this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s) Page 31 of 57 (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, including modifications and assignments thereof. (c) In case the Initial Lessee shall default under any of the provisions of this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such default whether the same consists of the failure to pay Rent or the failure to perform any other matter or thing which the initial Lessee is required to do or perform and the Lessor shall accept such performance on the part of the leasehold mortgagee(s) as though the same had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section i5.oi shall have, in addition to any period of grace extended to the Initial Lessee under the terms and conditions of this Lease for a non -monetary default, a period of sixty (6o) 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 (3o) 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.ot(d) prior to the cure provisions set forth in Section i5.oi(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 or other legal entity 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 (3o) days from the date of such termination and such written request and such new Lease is accompanied by payment to the Lessor of all amounts then due to the Lessor, including reasonable counsel fees, court costs and disbursements incurred by the Lessor in connection with any such default and termination as well as in connection with the execution, delivery and recordation of such new Lease, less the net income collected by the Lessor subsequent to the date of termination of this Lease and prior to the execution and delivery of the new Lease, and any excess of such net income over the aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due under such new Lease. Any new Lease referred to in this Section 15.oi(d) shall not require any execution, acknowledgement or delivery by the Lessor in order to become effective as Page 32 of 57 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 of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall theretofore have received written notice; and (ii) an agreement by the leasehold mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold mortgagee(s) shall not theretofore have received written notice. In addition, immediately upon receipt by the Lessor such new Lease, as provided in this Section 15.oi(d), the Lessor, where appropriate to the circumstances, 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 (io) 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) mortgage(s) 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 i5.oi(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) mortgage(s) or by assignment of this Lease in lieu of foreclosure or otherwise, the term "Initial Lessee," as used in this Lease, means only the owner or holder of the Lessee's interest for the time period that such leasehold mortgagee(s) is(are) the owner or holder of the Lessee's interest. Accordingly, in the event of a sale, assignment or other disposition of the Initial Lessee's interest in'this Lease by the leasehold mortgagee(s), where leasehold mortgagee(s) took title or ownership of or to any or all of the Initial Lessee's interest in the Lease and/or any portion of the Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof, the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and obligations of performance relating to construction, marketing and transfer to Sublessees and it shall be deemed and construed, without further agreement between the Lessor and the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees' purchaser(s) or assignee(s) at any such sale or upon assignment of Initial Lessee's interest by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's interest has assumed and agreed to carry out any and all covenants and obligations of Initial Lessee, including but not limited to the construction, maintenance and management of the Affordable Housing Units contemplated herein. In no event shall any protections afforded a() leasehold mortgagee(s) under this Lease be construed to permit eventual use of the Demised Premises for purposes inconsistent with this Lease or the Affordable Restrictions. Page 33 of 57 (g) Within ten (1o) 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 known and maybe 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 orinstances shall also be applicable to any such purchaser(s). 0) 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 0) 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 34 of 57 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) mortgage(s) 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.oi, 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 ism Permitted MortMages for Sublessees (Unit Owners). The individual Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage their interests in any Sublease, improvements or any associated portions of the Demised Premises related to their interests in the individual Affordable Housing Units to a Federal or State Savings Loan Association, Bank, Trust Company or similar lending institution, subject to the following requirements: (a) The mortgage(s) encumbering the Affordable Housing Unit shall not exceed i00% 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 securedby 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 relevant loan and shall not constitute an opinion or confirmation by Lessor that the corresponding loans or title insurance policies comply with or conform to the requirements of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of Lessor's rights to enforce same; Page 35 Of 57 (d) In the event of foreclosure sale bya 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.o5. Nothing herein shall preclude potential purchasers approved by Lessor from bidding at any foreclosure sale and, where successful, purchasing the subject Affordable Housing Unit at the foreclosure sale price in accordance with Article XII; and (e) The parties recognize that it would be contrary to the fundamental affordable housing concept of this Lease and an incentive to abuse Sublessee's authorization to encumber its leasehold interest with a mortgage if Sublessee could realize more in loan or sale proceeds than their permitted purchase or resale price as a result of any transaction. Accordingly, Sublessee hereby irrevocably assigns to Lessor (or the Monroe County Housing Authority or other Lessor designee) any and all net proceeds from the sale of any interest in the Demised Premises remaining after payment of costs of foreclosure and satisfaction of the lien of any mortgage which would have otherwise been payable to Sublessee, to the extent such net proceeds exceed the net proceeds that Sublessee would have received had the interests been sold pursuant to the Affordable Restrictions. Sublessee hereby authorizes and instructs the mortgagee or any party conducting the closing of a sale or through an unauthorized transfer to pay the amount of said excess directly to Lessor. In the event, for any reason, such excess proceeds are paid to Sublessee, Sublessee hereby agrees to promptly pay the amount of such excess to Lessor. ARTICLE XVI Default Section 16.oi 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, any mortgagees for which Lessor has previouslybeen provided requests for such notice and current detailed contact information in the manner set forth for recording and communicating to Lessor a "Certificate of Notice" as set forth in Section 20.03, hereof, and up to one specifically designated investment limited partner for which Lessor has previously been provided a request for such notice and detailed contact information, ten (io) days written notice of such default and Lessee or any other party on its behalf fails to cure such default within ten (io) days of verifiable receipt of said notice. Except as to the provisions or events referred to in the preceding paragraph of this Section, Lessee, Mortagees and Limited Partners shall not be deemed to be in default under this Lease unless Lessor shall first give to Lessee, Mortagees and Limited Partners (who have provided Lessor with current contact information and who are recognized under Page 36 of 57 this Lease as being entitled to notice) thirty (30) days written notice of such default, and Lessee fails to cure such default within the immediate thirty (3o) 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 (3o) days or fails thereafter to proceed to the curing of such default with all possible diligence. Mortgagees and investor general or limited partners shall be entitled to cure Lessee defaults on the same terms and conditions as the Lessee. Regardless of the notice and cure periods provided herein, in the event that more rapid action is required to preserve any right or interest of the Lessor in the Demised Premises due to any detrimental event or 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.o2 Defal}lt. In the event of any material breach of this Lease by Lessee, Lessor, and after the necessary notice and cure opportunity provided to Initial Lessee and other parties, in addition to the other rights or remedies it may have, shall have the immediate right to terminate this Lease according to law. However, during the initial seventeen (17) years of the Term, (i) any determination of "material breach" shall be judicially made in a court of competent jurisdiction in Monroe County, Florida, and (ii) Lessor shall have no right to terminate this Lease, but shall have all other rights and remedies available at law or in equity including, without limitation, specific performance and injunction. In any action by Lessor asserting a violation of the Affordable Restrictions, Lessee shall have the burden of proof with respect to such matter. Termination of the Lease, under such circumstances, shall constitute effective, full and immediate conveyance and assignment to Lessor of all of the Demised Premises, improvements and materials and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protection as provided herein. Furthermore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the other rights or remedies it may have, shall have the immediate right of re-entry (as may be lawfully conditioned per application of Chapter 83, Florida Statutes, as amended) and may remove all persons and personal property from the affected portions of the Demised Premises. Such property maybe removed and stored in a public warehouse or elsewhere at the cost of and for the account of Lessee, or where statutory abandonment or unclaimed property law permits, disposed of in any reasonable manner by Lessor without liability or any accounting therefore. Included in this right of reentry, and subject to Initial Lessee's rights, if any, shall be any instance wherein a Sublessee renounces the Lease or a Sublease or abandons all or any portion of 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 -let the repossessed property for the whole or any part of the then unexpired term, receive and collect all Rent payable by virtue of such reletting, and hold Sublessee liable for any difference between the Rent that would have been payable under this Lease and the net Rent for such period realized by Lessor, by means of such reletting. However, such Lessor Page 37 of 57 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. Should Lessor elect to re-enter, as herein provided, or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may either terminate this Lease or it may from time to time, without terminating this Lease, re - let the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such Rent or Rents and on such other terms and conditions as Lessor in its sole reasonable discretion may deem advisable with the right to make alterations and repairs to the Demised Premises. On each such re -letting Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other than Rent due under this Lease, the expenses of such re -letting and of such alterations and repairs, incurred by Lessor, and the amount, if any, by which the Rent reserved in this Lease for the period of such re -letting (up to but not beyond the term of this Lease) exceeds the amount agreed to be paid as Rent for the Demised Premises for such period of such re -letting. Notwithstanding any such re -letting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should Lessor at any time terminate this Lease for any breach, in addition to any other remedy it may have, Lessor may recover from Lessee all damages incurred by reason of such breach, including the cost of recovering the Demised Premises, which amounts shall be immediately due and payable from Lessee to Lessor. Section 16.og 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 underthis Lease and such failure shall continue for a period of thirty (30) days after receipt of written notice from Lessor specifying the nature of the act or thing to be done or performed, then Lessor may, but shall not be required to, do or perform or cause to be done or performed such act or thing (entering on the Demised Premises for such purposes, with notice, if Lessor shall so elect), and Lessor shall not be or be held liable or in any way responsible for any loss, inconvenience or annoyance resulting to Lessee on account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof, including compensation to the agents and employees of Lessor. Any act or thing done by Lessor pursuant to the provisions of this section shall not be construed as a waiver of any such default by Lessee, or as a waiver of any covenant, term or condition herein contained or the performance thereof, or of any other right or remedy of Lessor, hereunder or otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when the amounts become due as provided in this Lease, shall bear interest from the date they become due until paid at the highest rate allowed by law. Lessor shall have the same rights set forth in this Section with respect to any future subinterest holder's respective portion of the Demised Premises. Section 16.o4 Default Period. All default and grace periods shall be deemed to run Page 38 of 57 concurrently and not consecutively. Section 16.o-. Affordable Restrictions. In the event ten percent (io%) or more of the apartment units are failing to comply with the Affordable Restrictions at any given time Apentises, such an occurrence will be considered a material default by the offending party, subject to Lessor's compliance with any applicable default notice provisions provided elsewhere in this Lease and Lessee's, Mortgagees and Limited Partners applicable cure rights, if any. Lessee hereby agrees that all occupants shall use the Leased Premises and Improvements for affordable residential purposes only and any incidental activities related to the residential use as well as any other uses that are permitted by applicable zoning law and approved by Lessor. ARTICLE XVII Repair Obligations Section i7.oi Regair 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 propertyto be committed, except for that of normal wear and tear. The Lessee will repair, replace and renovate such property as often as it may be necessary in order to keep the buildings and other property which is the subject matter of this Lease in first class repair and condition. Additionally, Lessor shall not be required to furnish any services or facilities, including but not limited to heat, electricity, air conditioning or water or to make any repairs to the premises or to the Affordable Housing Units. ARTICLE XVIII •.. I!.•_ . ,� • Section 18.oi Legal Use, The Lessee covenants and agrees with the Lessor that the Demised Premises will be used primarily for the construction and operation of a multi -unit affordable housing complex and the other matters as may be set forth in this Lease, with related amenities and facilities, and for no other purposes whatsoever without Lessor's Page 39 of 57 written consent. Section 18.o2 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. Section 18.03 Recovery of Litigation Expense. In the event of any suit, action or proceeding, at law or in equity, by either of the parties hereto against the other, or any other person having, claiming or possessing any alleged interest in the Demised Premises, by reason of any matter or thing arising out of or relating to this Lease, including any eviction proceeding, the prevailing party shall recover not only its legal costs, but reasonable attorneys' fees including appellate, bankruptcy and post judgment collection proceedings for the maintenance or defense of said action or suit, as the case may be. Any judgment rendered in connection with any litigation arising out of this Lease shall bear interest at the highest rate allowed by law. Lessor may recover reasonable legal and professional fees attributable to administration, enforcement and preparation for litigation relating to this Lease or to the Affordable Restrictions from any person or persons from or to whom a demand or enforcement request is made, regardless of actual initiation of an action or proceeding. 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 maybe 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 Mac; 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 Page 40 of 57 purposes herein, the term hazardous materials or substances shall mean any hazardous, toxic or radioactive substance material, matter or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement and shall include petroleum products and asbestos as well as improper or excessive storage or use of common household cleaning and landscaping chemicals, pesticides, batteries and the like, and those materials defined as hazardous substance or hazardous waste in the Comprehensive Environmental Response Compensation and Liability Act and/or the Resource Conservation and Recovery Act. Lessee shall notify Lessor immediately of any known 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, unless such discharge is caused by Lessor or any of its agents or employees. Lessor and Initial Lessee hereby warrant and represent that to the best of their knowledge, the Demised Premises is free of any hazardous waste. Lessor shall be liable for environmental damages according to the extent made so by law for periods following its taking possession of the Demised Premises upon the Effective Date. Section 18.06 Recordation. Lessee, within five (5) business days after execution of this Lease, shall record a complete, true and correct copy of the Lease and any addenda or exhibits thereto and any Related Agreement(s) in the Public Records of Monroe County, Florida and shall provide Lessor with the written Clerk's receipt of the book and page number where recorded and the original Lease and Related Agreement(s) after recordation. ARTICLE XIX Representations, Warranties of Title and Quiet En jovment and No Unlawful or Immoral Purpose or Use Section 19.oi Representations, Warranties of Title and Quiet Enjoyment. Lessor represents and warrants that to its knowledge, there are no material claims, causes of action or other proceedings pending or threatened in respect to the ownership, operation or environmental condition of the Demised Premises or any part thereof. Additionally, the Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of the covenants and conditions required by the Lessee to be kept and performed, the Lessee shall have quiet and undisturbed and continued possession of the Demised Premises from claims by Lessor. Section 19.02 No Unlawful or Immoral Purpose or Use. The Lessee, as long as it has any interest in or to any portion of the Demised Premises, shall not occupy or use such portion for any unlawful or immoral purpose and will, at Lessee's sole cost and expense during such period of interest, conform to and obey any present or future ordinance and/or rules, regulations, requirements and orders of governmental authorities or agencies Page 41 of 57 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 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 20.0R 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, and signed also by any mortgagee or limited partner of Lessee, or their duly authorized agents or attorneys, as long as such mortgagee or limited partner has both (i) filed in Public Records of Monroe County, Florida, a "Certificate of Notice" of their interest in this Lease and or the Demised Premises, said certificate setting forth complete and current contact information, the real estate parcel number assigned to the Demised Premises and the O.R. Records Book and Page Number of the first recorded page of this Lease, and (ii) provided a copy of the recorded certificate to the Lessor at its notice address(es) via 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.. 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.oti Notices. If either party desires to give notice to the other in Page 42 of 57 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 of default or requests to modify this Lease shall also be provided according to the foregoing methods to any mortgagee or limited partner of the Lessee that has complied with the provisions of Section 20.03, above. Notification to Lessor and Initial Lessee 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: Initial Lessee: SEA GRAPE APARTMENTS, LTD. c/o TCG SEA GRAPE LLC 2950 S.W. 27THAVE. SUITE 200 Miami, Florida 33133 Wachovia Affordable Housing Community Development Corporation, 3o1 South College Street, TW-17, Charlotte, NC 28288 (Attn: Asset Management) Lessor: DIRECTOR - MONROE COUNTY DIVISION OF HOUSING & COMMUNITY DEVELOPMENT Florida Keys Marathon Airport 9400 Overseas Highway, Suite 200 Marathon, Florida 33050 Tel. 305-289-6o02 and MONROE COUNTY ATTORNEY PO Box 1026 Key West, Florida 33041 Tel. 305-292-3470 Section 20.o6 Joint Liability. If the parties upon either side (Lessor and Lessee) consist of more than one person, such persons shall be jointly and severally liable on the covenants of this Lease. Section 20.o LiabfliW Continued; Lessor Liability. All references to the Lessor and Lessee mean the persons who, from time to time, occupy the positions, respectively, of Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for liabilities that may have been incurred prior to the date of the assignment or as specifically dealt with differently herein, the Lessor's liability under this Lease shall terminate upon such assignment. In addition, the Lessor's liability under this Lease, unless specifically dealt with differently herein, shall be at all times limited to the Lessor's interest in the Demised Premises. Section 20.08 Captions. The captions used in this Lease are for convenience of Page 43 Of 57 reference only and in no way define, limit or describe the scope or intent of or in any way affect this Lease. Section 2o.o4 Table of Contents. The index preceding this Lease under the same cover is for the purpose of the convenience of reference only and is not to be deemed or construed in any way as part of this Lease, nor as supplemental thereto or amendatory thereof. Section 20.10 Governing Law, Venue. This Agreement shall be construed under the laws of the State of Florida, and the venue for any legal proceeding to enforce or determine the terms and conditions of this Lease shall be Monroe County, Florida. Section 20.11 Holding Over. Any holding over after the expiration of the Term of this Lease, with consent of Lessor, shall be construed to be a tenancy from month to month, at twice the monthly Rent as required to be paid by Lessee for the period immediately prior to the expiration of the Term hereof, and shall otherwise be on the terms and conditions herein specified, so far as applicable. Section 20.12 Brokers. Lessor and Lessee covenant, warrant and represent that no broker was instrumental in consummating this Lease, and that no conversations or negotiations were had with any broker concerning the renting of the Demised Premises. Lessee and Lessor agree to hold one another harmless from and against, and agree to defend at its own expense, any and all claims for a brokerage commission by either of them with any brokers. Section 20.13 Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance shall at any time or to any extent be held invalid or unenforceable, the remainder of this Lease or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby. Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or other severe weather events, war or other reasons of like nature not the fault of the party delayed, in performing work or doing acts required under this Lease, the period for the performance of any such act shall be extended for a reasonable period. Section 20.15 Lessor/Lessee Relationship, Non -Reliance by Third Parties. This Lease creates a lessor/lessee relationship, and no other relationship, between the parties. This Lease is for the sole benefit of the parties hereto and, except for assignments or Subleases permitted hereunder and to the limited extent thereof, no other person or entity shall be a third party beneficiary hereunder. Except as expressly provided under this Lease or under the Affordable Restrictions, 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 Page 44 of 57 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. Initial Lessee's obligations to proceed with and complete the project under this Lease Agreement is contingent upon Initial Lessee obtaining construction financing; all necessary permits to build the Affordable Housing Units described herein; as well as Initial Lessee obtaining adequate cross access or other customary easements (e.g., utility) necessary or convenient for a project of this type. Lessor shall grant Lessee or its affiliates reasonable and customary easements required for Lessee or its affiliates to proceed with Phase II, should that phase proceed as contemplated herein. Lessor's obligation to grant such easements shall subject to Lessor's attorney's review and approval for substance and form of easement instruments, which approval shall not be unreasonably withheld, delayed or conditioned. Lessor shall make objection to any proposed easement instruments within fifteen (15) business days of receipt of copies thereof, or Lessor's approval shall be deemed granted. Therefore, in the event Initial Lessee is unable to obtain financing, permits or adequate cross easements so as to permit beginning of the eighteen (18)-month construction period provided for herein by no later than November 1, 2007, either party may terminate this Lease and/or the associated Sea Grape II, Ltd. Lease (a similar contemplated lease for the adjoining parcel generally to encompass the real property depicted and legally described as "Phase II" on Exhibit B hereto). Termination of the Lease under such circumstances shall constitute effective, full and immediate conveyance and assignment to Lessor of all of the Demised Premises, improvements, interests in and materials and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protection as provided herein, as well as the immediate turnover by the Initial Lessee (and any person or entity affiliated with it) to Monroe County and/or the City of Marathon, Florida (in any manner the Monroe County Board of County Commissioners and the City of Marathon City Council may jointly request) any and all allocated or reserved Affordable Housing Unit allocations (commonly loosely referred to in Monroe County as "ROGOs" and estimated here to number more or less twenty eight (28) allocations for the contemplated "Phase II", of the overall "Seagrape" project). Moreover, upon termination of this Lease at any time during the first fifteen (15) years of the Term, where due to Initial Lessee's default or inability to perform its obligations to complete construction or to subsequently maintain and/or manage the project as contemplated by this Lease (subject to various parties' cure rights), the Initial Lessee and any successor to its title, rights or interests in or to the aforementioned adjoining parcel contemplated for the "Phase II" aspect of the "Seagrape" development (as reflected by among other things, that certain Development Order #2007-oi, dated 1/31/07, as recorded in O.R. Book 2281, Page 1416, of the Public Records of Monroe County, Florida), shall accede to and grant Lessor or its assigns commercially and customary reasonable easements and the like with respect to the adjoining parcel in favor of the Demised Premises that may be necessary for its feasible development. Initial Lessee represents and warrants that it is affiliated or has substantive relationships with the Carlisle Group, Inc., and that company's principals and affiliates, and that the Initial Lessee and the Page 45 of 57 person executing this Lease for the Initial Lessee is authorized to bind any of the foregoing parties to the potential obligation to return Affordable Housing Unit allocations/reservations/ROGOs to Monroe County and/or the City of Marathon as set forth in this paragraph, or the aforementioned Development Order #2007-01. Initial Lessee hereby acknowledges that in the event Initial Lessee terminates this Agreement or the related contemplated "Phase II" development or any Lease related thereto, for failure to timely begin and proceed with construction under an applicable lease once Lessor or the Monroe County Land Authority has purchased the Demised Premises, Initial Lessee will not receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to such termination and affordable ROGO permit allocations now associated with the "Phase II" Property shall be deemed surrendered back to and returned to Monroe County and/or the City of Marathon. Additionally, Initial Lessee agrees that if LIHTC or other guarantees of funding for the contemplated "Phase II" follow-on aspect of the overall Seagrape project are not secured with written notice of same provided to Monroe County and the City of Marathon by October 30, 2007, or if an agreement/commitment with Initial Lessee or a party affiliated with Carlisle Group, Inc., or any of its principals or affiliates, to have permits for construction received for "Phase II" by no later than June 1, 2008 is not consummated by November 30, 2007, then the allocation or reservation of the aforementioned more or less twenty-eight (28) ROGO allocations shall be returned or otherwise released to Monroe County and/or the City of Marathon (in any manner the Monroe County Board of County Commissioners and the City of Marathon City Council may jointly request). Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may pose health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings. Additional information regarding radon and radon testing may be obtained from your county health unit. Lessor shall not be responsible for radon testing for any persons purchasing, leasing or occupying any portion of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or claims related thereto and release 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 maybe obtained from your county health unit or the EPA or CDC. Lessee and Sublessees accept responsibility to inspect for mold and take measures to reduce mold. Lessor shall not be responsible for mold testing for any persons purchasing, leasing or occupying any portion of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or claims related thereto and release Lessor from same. Section 20.19 Subsequent Changes in Law or Regulation. Where a change can reasonably be applied to benefit, enhance or support Lessor's affordable housing goals, objectives and policies, Lessor shall have the right to claim the benefit from any subsequent change to any applicable state or federal law or regulation that might in any way affect this Page 46 of 57 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 or require of any party an action that would be unauthorized under or that would violate LIHTC or inequitably precipitate any event of default under any financing under any financing document related to the funding of the proposed project. Section 20.2o Government Purpose. Lessor, through this Lease and the Affordable Restrictions, furthers a government housing purpose, and, in doing so, expressly reserves and in no way shall be deemed to have waived, for itself or its assigns, successors, employees, officers, agents and representatives any sovereign, quasi -governmental and any other similar defense, immunity, exemption or protection against any suit, cause of action, demand or liability. Section 20.21 Breach of Related Agreements/Remedies. To the extent that any purchase and sale or Related Agreement relating to the Demised Premises incorporates, relates to and/or is contingent upon the execution of and/or any performance under this Lease, any material breach under such other agreement shall be a material breach of this Lease and any material breach under this Lease shall be a material breach of such other agreement. Moreover, the parties agree that any remedy available for any breach under this Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's complete discretion, with any election to avail itself or proceed under any particular remedial mechanism in no way to be construed as a waiver or relinquishment of Lessor's right to proceed under any other mechanism at any time or in any particular sequence. Section 20.22 Supplemental Administrative Enforcement. Lessor, or its appropriate agency, may establish under the Affordable Restrictions, as amended from time to time during the Term of this Lease, such rules, procedures, administrative forms of proceedings and such evidentiary standards as deemed reasonable within Lessor's legislative prerogative, to implement enforcement of the terms of this Lease and similar leases and the Affordable Restrictions, but such mechanisms and code enforcement proceedings, if any, shall not conflict with or require Lessee to act contrary to LIHTC requirements. 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 or the single allowed designated investor limited partner from access to an appropriate court of competent jurisdiction where the resolution of any dispute would be beyond the competence or lawful jurisdiction of any administrative proceeding. Section 20.2R Exceptions to Lease/Rental Prohibition. Under this Lease rental of Affordable Housing Units is not prohibited. In addition to rights recognized herein for Initial Lessee and certain "bulk" purchasers to rent units to tenants qualified under LIHTC regulations, which are not hereby restricted, Lessor or its designee, in its sole discretion, Page 47 of 57 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, but such provisions shall not conflict with Initial Lessee's management of the Demised Premises as a LIHTC property. Requests for such approval shall be made in accordance with such procedures Lessor may in the future choose to adopt. It is contemplated, though not promised or required, that certain limited rental provisions may be adopted in the future for circumstances such as, for example, but without limitation: (a) A Sublessee's required absence from the local area for official military duty. (b) An illness that legitimately requires a Sublessee to be hospitalized for an extended period. (c) A family emergency legitimately requiring a Sublessee to leave the Keys for a period longer than thirty (3o) days. Lessor, in its discretion, shall have the right to amend, modify, extend, rescind, decrease or terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at any time. Section 20.24 Drafting of Lease and any Related Agreement The parties acknowledge that they jointly participated in the drafting of this Lease and any Related Agreements with the benefit of counsel, or had the opportunity to receive such benefit of counsel, and that no term or provision of this Lease or a Related Agreement shall be construed in favor of or against either party based solely on the drafting of this Lease or the Related Agreement. Section 20.2.c; Lessor's Duty to Cooperate Where required under this Lease or Related Agreement, Lessor shall, to ensure the implementation of the public affordability purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee, Sublessees, mortgagees, title insurers, closing agents, government agencies and the like regarding any relevant terms and conditions contained herein. Section_ 20.26 Initial Lessee's Transfer of Partnership Interests Nothing herein shall limit or preclude transfers of partnership interests of the Initial Lessee, or redesignation or substitution of a general partner of the Lessee. Page 48 of 57 IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands and seals, as of the day and year above written. Signed, Sealed and Delivered in the presence of two witnesses: Printed Name M 1�QK J '4ZoSCF� Printed Name (as to Lessor) (as to Lessee) refk-1/V--`-- )5 400 7 4Tr'EST DANNYi OWMCWVt-- g► v C. l Qi111� v DEKRYC , For TC Partner LTD. General STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of September, 2007, by Lloyd J. Boggio, as Pros" ros nt of and for TCG Sea Grape, LLC, a Florida limited liability company, who is j personally known to me, or who [ has 1 produced a drivers license as identification. Notary Public Approved as to form: Print Name: J1V-0 6&4or ••••••••••••••••••• •••••••••••••••••••••••49busing consulting Attorney My Commission expires: MARLENE CASAR SANCHEZ Comm>k OD0689789 Seal � � E:cpireo 70/19/201 T " o►o Hotta Notary Am., ft �.nuu..a.n+.n sr r•.U.vu.ouNu...eo.N Page 49 of 57 EXHIBIT A LEGAL DESCRIPTION A parcel of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida, more particularly described as follows: Begin at the intersection of the East line of said Section 11 and the Southeasterly right of way line of U.S. Highway 1; thence South along the said East line of Section 11 for 285.00 feet to the Point of Beginning; thence continue South for 574.00 feet; thence West for 91.55 feet; thence North for 24.61 feet; thence West for 140.00 feet; thence North for 549.39 feet; thence East for 231.55 feet to the Point of Beginning; Containing 129463 s.f. for 2.97 acres, more or less. Page 50 of 57 EXMIT B PROPERTY DEPICTION ALD 47 e OL I , r y tbd.. o Fbridat Wnw p •Na 1, 110raRflo� Plorido - tg aeootnp�, Ibn a." FRE- EFWK H, HILDMPMIDT Page 51 of. 57 This Instrument Prepared By: JERRY COLEMAN, P.L. 201 Front Street, Suite 203 Key West, Florida 33040 RE No. 00103560-000200 EXHIBIT C COMMENCEMENT DATE AGREEMENT This Agreement is made as of 2007 by and between ("Lessor') and ("Lessee"). WHEREAS, Lessor and Lessee have entered into a Lease dated September _, 2007 for Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book `Page WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the Lease. NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth below is true and accurate. Commencement Date: Mav 2009 Initial Term Expiration Date: May 2109 EXECUTED as a sealed instrument on the date first set forth above. LESSOR: By: its Witness 1 Witness 2 LESSEE: By: its Witness 1 Witness 2 Page 52 of 57 EXHIBIT D Term Portion Duel SOL TermPsIIion Dug Data Bala Lease Year 1 May 12009 $10.00 Lease Year51 May 12058 $1000 Lease Year 2 May 12009 $10.00 Lease Year 52 May 12059 $1000 Lease Year 3 May 12010 $10.00 Lease Year 53 May 12060 $10.00 Lease Year 4 May 12011 $10.00 Lease Year 54 May 12061 $1000 Lease Year 5 May 12012 $10.00 Lease Year 55 May 12062 $1000 Lease Year 6 May 12013 $10.00 Lease Year 56 May 1 2063 $1000 Lease Year 7 May 12014 $10.00 Lease Year 57 May 12064 $1000 Lease Year 8 May 12015 $10.00 Lease Year 58 May 12065 $10 00 Lease Year 9 May 12016 $10.00 Lease Year 59 May 12066 $10.00 Lease Year 10 May 1 2017 $10.00 Lease Year 60 May 12067 $1000 Lease Year 11 May 12018 $10.00 Lease Year 61 May 12068 $10.00 Lease Year 12 May 12019 $10.00 Lease Year 62 May 12069 $10.00 Lease Year 13 May 12020 $10.00 Lease Year 63 May 12070 $10.00 Lease Year 14 May 12021 $10.00 Lease Year 64 May 12071 $10.00 Lease Year 15 May 12022 $10.00 Lease Year 65 May 1 2072 $10.00 Lease Year 16 May 1 2023 $10.00 Lease Year 66 May 1 2073 $10.00 Lease Year 17 May 1 2024 $10.00 Lease Year 67 May 12074 $10.00 Lease Year 18 May 12025 $10.00 Lease Year 68 May 1 2075 $10.00 Lease Year 19 May 12026 $10.00 Lease Year 69 May 1 2076 $10.00 Lease Year 20 May 12027 $10.00 Lease Year 70 May 12077 S10.00 Lease Year 21 May 12028 $10.00 Lease Year 71 May 12076 $10.00 Lease Year 22 May 12029 $10.00 Lease Year 72 May 12079 $10.00 Lease Year 23 May 12030 $10.00 Lease Year 73 May 1 2080 $10.00 Lease Year 24 May 12031 $10.00 Lease Year 74 May 12081 $10.00 Lease Year25 May 12032 $10.00 Lease Year75 May 12082 S10.00 Lease Year 26 May 12033 $10.00 Lease Year 76 May 12083 $10.00 Lease Year 27 May 12034 $10.00 Lease Year 77 May 12084 $10.00 Lease Year 28 May 1 2035 $10.00 Lease Year 78 May 12065 $10.00 Lease Year 29 May 12036 $10.00 Lease Year 79 May 12086 $10.00 Lease Year 30 May 12037 $10.00 Lease Year 80 May 12087 $10.00 Lease Year 31 May 12038 $10.00 Lease Year 81 May 12088 $10.00 Lease Year 32 May 12039 $10.00 Lease Year 82 May 12089 $10.00 Lease Year33 May 1 2040 $10.00 Lease Year 83 May 12090 $10.00 Lease Year34 May12041 $10.00 Lease Year84 May 12091 $10.00 Lease Year 35 May 12042 S10.00 Lease Year 85 May 1 2092 $10.00 Lease Year 36 May 12043 $10.00 Lease Year 86 May 12093 $10.00 Lease Year37 May 12044 $10.00 Lease Year87 May 1 2094 $1000 Lease Year 38 May 12045 $1000 Lease Year 88 May 12095 $10.00 Lease Year 39 May 12046 $10.00 Lease Year 89 May 1 2096 $10.00 Lease Year 40 May 12047 $10.00 Lease Year90 May 12097 $1000 Lease Year 41 May 12048 $10.00 Lease Year 91 May 1 2098 $10.00 Lease Year 42 May 12049 $10.00 Lease Year 92 May 12099 $1000 Page 53 of 57 Lease Year 43 May 12050 $10.00 Lease Year 93 May 1 2100 $10 00 Lease Year 44 May 12051 $10.00 Lease Year 94 May 12101 $10.00 Lease Year 45 May 1 2052 $10.00 Lease Year 95 May 12102 $10.00 Lease Year 46 May 12053 $10.00 Lease Year 96 May 12103 $10.00 Lease Year 47 May 12054 $10.00 Lease Year 97 May 12104 $10.00 Lease Year 48 May 12055 S10.00 Lease Year 98 May 12105 $10.00 Lease Year 49 May 12056 S10.00 Lease Year 99 May 1 2106 $10.00 Lease Year 50 May 12057 $10.00 Page 54 of 57 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 explained to me the terms and conditions of the Lease, including without limitation the meaning of the term "Affordable Restrictions", and other legal documents that are part of this transaction. If I have not had legal counsel, I state here that I have had an opportunity to have obtain such counsel, understand its importance, and have knowingly proceeded to closing without it. • 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 tinting 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. Page 55 of 57 • I understand that in the event that I die, my home may be devised and occupied by my wife, my children or any other heirs so long as they meet the requirements for affordable housing as set forth in the Lease. • That I have reviewed the terms of the Lease and transaction documents and that I consider said terms fair and necessary to preserve affordable housing and of special benefit to me. • I hereby warrant that I have not dealt with any broker other than in connection with the consummation of the purchase of the Affordable Housing Unit. Occupant Signature Occupant Signature Page 56 of 57 EXHIBIT F Modified or Additional Conditions This modification or Section z2.o2 I ;r;Ai SAlen PnoP of Unit R IADDITIo1vpI,PROVIctnrn �Des„lollcaiaiivapcePP additional condition Initial Lessee acknowledges that there shall be shall:n'M by this Lease a right of first refusal in favor of Lessor to purchase or designate purchasers for anyAffordable Housing Units offered for sale or lease. Initial Lessee shall provide Lessor with written notice ofits intent to commence X NOT APPLY marketing efforts and Lessor shall have ninety (go) days from the date of Lessor's receipt of the notice to enter into a reservation agreement with Initial APPLY Lessee for the purchase/lease of all or a portion of theAffordable Housing Units, unless Initial Lessee has been authorized, in wring (which the omission of this provision may itself constitute), by Lessor to sell the Affordable Housing Units to to this Lease. 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. This modification or Section o a�� "Relates aa,PP "R Failut additional condition shall. of O�nsideration or A•at A� Failure m PerfOrmanrw A...,, o ,, of the Pro ect throw 1 =Rdgll%- Where prior to completion J through certification for occupancy of all required units, Initial Lessee, or any Lessee or any other persons taking or holding any interest in the Demised Premises under this Lease, X NOT APPLY or any persons receiving consideration given to Initial Lessee pursuant to any other Related includibut limited ment (of APPLY not to cases where such consideration includes transfer but ding or development rights or the like from the Demised Premises or recognition of such rights for use elsewhere by any person), receives the substantial benefit of such person's bargain or such a transferred development to this Lease. right, while Lessor is at any time denied the full benefit of any then due material consideration intended to be provided to Lessor by Initial Lessee under this Lease, or under any Related Agreement, or while Lessor fails to to obtain substantial performance of any material obligations thereunder, Leshall have the right to seek damages and any appropriate equitable relief from any persons or entities (including third parties, to whom the recording of this Lease is intended to serve as constructive notice) to which benefits have flowed or otherwise inured. Related Agreements for the purposes of this Lease shall be: Qeeb* Page 57 of 57 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Division: Growth Management Bulk Item: Yes X No _ Department: Staff Contact Person/Phone #: Susan Grimsley 289-2500 AGENDA ITEM WORDING: Approval of Commencement Date Agreement pursuant to the lease between Monroe County and Sea Grape II, Ltd. for property located in Marathon, Florida (RE#00103560.000201 & 00103560-000203). ITEM BACKGROUND: Monroe County and Sea Grape II, Ltd entered into a 99-year lease dated August 20, 2008, to construct 28 affordable housing dwelling units on this property. This Agreement establishes the commencement date of the 99-year lease term. PREVIOUS RELEVANT BOCC ACTION: August 15, 2007 — BOCC approved 99 year lease for Phase I with Sea Grape Apartments, LTD for 56 units. February 20, 2008 — Deed of Conservation Easement February 20, 2008 — Approval of Amendment No. 1 with Sea Grape Apartments, LTD extending the commencement date for construction to May 30, 2008 and for completion within 18 months. March 19, 2008 — Approval of Amendment No. 2 for Sea Grape Apartments, LTD amending the Lease to have Lessee make applications for building and environmental permits June 18, 2009 — Approval of Amendment No. 3 for Sea Grape Apartments, LTD extending the commencement date to December 31, 2008 and for completion within 18 months contingent upon financing and obtaining permits and easements. August 20, 2008 — Approval of 99 year lease for Phase II with Sea Grape II, LTD for 28 units. August 20, 2008 — Approval of Grant of Easement and Right of Use Agreement (Access Easement) August 20, 2008 - Approval of Resolution No. 247-2008 accepting 2 parcels of land from the Monroe County Land Authority for Phase II of the Sea Grape project August 20, 2008 — Approval of a Estoppel Agreement for Phase I with Sea Grape Apartments, LTD November 19, 2008 — Approval of Grant of Easement and Right of Use Agreement (Reciprocal Access and Recreational Easement) August 19, 2009 — Approval of Ground Lessor Estoppel Attornment with Sea Grape II, LTD CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approval TOTAL COST: n/a INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: n/a REVENUE PRODUCING: Yes _ No x BUDGETED: Yes No n/a SOURCE OF FUNDS: AMOUNT PER MONTH Year APPROVED BY: County Atty x OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required DISPOSITION: AGENDA ITEM # This Instrument Prepared By: Richard E. Deutch, Jr., Esq. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 150 West Flagler Street Suite 2200 Miami, Florida 33130 RE Nos. 00103560-000201 00103560-000203 COMMENCEMENT DATE AGREEMENT This Agreement is made as of April 29, 2010 by and between MONROE COUNTY, a political subdivision of the State of Florida ("Lessor") and SEA GRAPE ll, LTD., a Florida limited partnership ("Lessee"). WHEREAS, Lessor and Lessee have entered into a Lease dated August 20, 2008 for Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book 2387, Page 584, of the Public Records of Monroe County, Florida. WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the Lease. NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth below is true and accurate. Commencement Date: April 29, 2010 Initial Term Expiration Date: April 29, 2109 EXECUTED as a sealed instrument on the date first set forth above. (SIGNATURES APPEAR ON FOLLOWING PAGE) #342571 v1 Commencement Date Agreement 34756-0202 (COMMENCEMENT DATE AGREEMENT SIGNATURE PAGE) LESSOR: MONROE COUNTY, a municipal subdivision of the State of Florida 0 Its (Seal) ATTEST: Danny L. Kolhage, Clerk By: Deputy Clerk Witness 1 Witness 2 LESSEE: SEA GRAPE II, LTD., a Florida limited partnership By: CDG SEA GRAPE II, LLC, a Florida limited liability company, its General P r By.-- ATTHEW GREER Its Manager The foregoing instrument was acknowledged before me this day of 2010, by as of MONROE COUNTY, a political subdivision of the State of Florida, who is [ ] personally known to me, or who [ J has produced a drivers license as identification. Notary Public, State of Florida My Commission Expires: The foregoing instrument was acknowledged before me this 10 day of , 2010, by MATTHEW GREER, as Manager of CDG SEA GRAPE II, LLC, aJFIorida limited liability company, the General Partner of SEA GRAPE II, LTD., a Florida limited partnership, who is [ X ] personally known to me, or who [ J has produced a drivers license as identification. SUYLEN RODRIGUEZ NOTARY PUBLIC STATE OF FLORIDA Comm# DD979380 Expires 4/6/2014 2 Notary Pu St o lorid My Commission Expires: 1p 2p LEASE BETWEEN MONROE COUNTY "LESSOR" AND SEA GRAPE II, LTD. "LESSEE" DATED AUGUST 6072008 RE Nos. 00103560-000201 00103560-000203 Seagrape II Table of Contents Article Title Page No. I Definitions 4 II Demised Premises 8 III Term 8 IV Rent 9 V Non -Subordination 10 VI Payment of Taxes and Utilities 10 VII Mechanics' Liens 13 VIII Governing Law, Cumulative Remedies 14 IX Indemnification of Lessor 14 X Insurance 16 XI Insurance Premiums 20 XII Assignment/Transfer 20 XIII Condemnation 28 XIV Construction 29 XV Mortgage Financing 31 XVI Default 36 XVII Repair Obligations 39 XVIII Additional Covenants of Lessee/Lessor 39 XIX Representations, Warranties of Title and Quiet Enjoyment and No Unlawful or Immoral Purpose or Use 41 XX Miscellaneous 42 Exhibit A Legal Description 50 Page 2 of 57 Exhibit B Property Depiction Exhibit C Commencement Date Agreement Exhibit D Annual Rent Payment Schedule Exhibit E Letter of Acknowledgment Exhibit F Modified or Additional Conditions Page 3 of 57 51 52 53 55 57 GROUND LEASE AGREEMENT THIS LEASE made and entered into in Key West, Monroe County, Florida, on this day of August, 2008, by and between MONROE COUNTY (referred to as the "Lessor") and SEA GRAPE II, LTD., Florida limited partnership (referred to as the "Lessee"). RECITALS WHEREAS, Lessor is the owner in fee simple of the property located at what is now known as Overseas Highway, Cityof Marathon, Monroe County, Florida, and more particularly described on the attached Exhibit A (hereinafter "Property")-. WHEREAS, it is Lessor's intent that the Property be developed to provide affordable housing for Monroe County; WHEREAS, Lessee desires to develop the Property for rental use twenty-eight (28) affordable housing units (provided allowed by County regulations and hereinafter the "Affordable Housing Units") for qualified owner or tenant occupants, as the case may be, using, among other financing sources, those made available through Section 42 Low -Income Housing Tax Credit program (LIHTC).; 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; 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 the term of the ninety-nine (99) year lease. However, nothing in this Lease shall (a) permit the Lessor to require a Lessee to comply with provisions of local ordinances that are in conflict with LIHTC requirements applicable to the financing of the project, or (b) materially and adversely alter the obligations or rights of Lessee under this Lease. Page 4 of 57 "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, such as the one contemplated herein, 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 the Affordable Restrictions, as amended from time to time (though not in conflict with L.IHTC requirements). Moreover, Lessor may establish in its Affordable Restrictions "means" or "assets" criteria that limit potential buyer or rental pools. Any such amendment shall not increase Initial Lessee's responsibilities as set forth herein. It is the intent and purpose and shall be the effect of this Lease and any Affordable Restrictions to ensure that the affordability of Affordable Housing Units and dedicated real property upon which they are located is maintained and enforced such that any administrative rule, policy or interpretation thereof, made by Lessor or its designees relating to the maximum total amount of consideration and cost permitted to be in any way involved in a purchase or rental transaction (including but not limited to purchase price, lease assignment fees, rents or any other compensation given or received in or "outside" of a related transaction) shall never exceed the affordability criteria reasonably established by Monroe County for the dwelling units involved. In every case, the construction and interpretation of terms, conditions and restrictions imposed by this Lease and the Affordability Restrictions shall be made in favor of ensuring that long term affordability benefits for the respective housing resources inure to the benefit of Monroe County, its economy and its community character. In all cases of conflict between local and federal LIHTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal (LIHTC) requirements without being deemed in breach of this Lease or the Affordable Restrictions. "Association" shall mean any condominium, homeowners or similar community association customarily used in planned developments (whether or not expressly contemplated or authorized herein) to manage certain aspects of community or planned development living (e.g., infrastructure management, rules and regulations, enforcement mechanisms and recreational facilities). "Commencement Date" shall mean the date when Initial Lessee receives a Certificate of Occupancy for the first Affordable Housing Unit. Page 5 of 57 "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 SEA GRAPE II, LTD., a Florida limited partnership, developer and future manager of the Affordable Housing Units. "Lease" shall mean this lease for the creation of the Affordable Housing Units on the Demised Premises, as may be amended from time to time by the parties. It is expressly contemplated and intended by Lessor, as fee title holder to the Demised Premises, and agreed to and accepted by Lessees, that any limitations, restrictions and/or other covenants of any nature, whether established pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of enforceable covenants running with the land, equitable servitudes and all other cognizable legal and equitable real property conventions so as to ensure the overall public affordable housing purposes intended to be served, including appropriate application of cumulative enforcement theories. "Lease Year" shall mean the twelve (12) month period beginning on the Commencement Date and each twelve (12) month period thereafter throughout the Term of this Lease. "Lessor" means MONROE COUNTY, or its assigns or designees. Lessor as used herein and where the context requires, shall mean an agency or party designated by the Lessor, by written notice to all parties, to administer or enforce some or any portion of the provisions of this Lease or the Affordable Restrictions. "Lessee" means the Initial Lessee and its successors and assigns, including the Association created by Initial Lessee for the Unit owners/tenants, if any, as well as the individual Unit owners/tenants. "Limited Partner" for this Lease means Wachovia Affordable Housing Community Development Corporation and its successors and assigns, or any other such limited partner designated by the Lessee. "Project" shall mean the required development of the Demised Premises, primarily the required construction of Affordable Housing Units as set forth in Article XIV, but also including related infrastructure, securing of required development approvals and permits, financing for the construction of the Affordable Housing Units, marketing/renting of the Affordable Housing Units and creation of any required governing Association. Page 6 of 57 "Related Agreements" shall mean any purchase and sale or other agreement entered into with Monroe County contemporaneously and in conjunction with this Lease and which is recorded. Related Agreements made to apply to this Lease are set forth in Exhibit F. "Rent" shall mean any sum of money due to the Lessor under this Lease for any reason. The term Rent as used herein, should not be misconstrued to preclude definition and distinguishing of rent, rental rates and other such other terms as maybe 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 granting of 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 Premises, including rental agreements with tenants or renters 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. However, sublease forms which conform to LIHTC or Florida Housing Finance Corporation requirements and that otherwise conform to the Affordable Restrictions need not be approved by the Lessor. "Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an individual Affordable Housing Unit owner or tenant who, as of the date such person(s) acquires( ) or renews their interest(s) in the Affordable Housing Unit, qualifies for "Affordable Housing" as defined under Chapter 9.5 of the Monroe County Code and who is gainfully employed at the time of their rental. Additionally, except as may be otherwise permitted by this Lease, in order to remain eligible to renew their sublease or rental agreement and to reside in their Affordable Housing Unit into retirement, in addition to complying with any otherwise applicable provisions in the Affordable Restrictions, renters or tenants of all Affordable Housing Units shall be encouraged to be and must remain gainfully employed. However, no gainful employment aspiration or requirement expressed herein or expressed in the Affordable Restrictions shall preclude or inhibit Lessee's Page 7 of 57 compliance with LIHTC or other state or federal requirements or obligations, "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. of Lessor's Demise. Upon the terms and conditions hereinafter set forth, and in consideration of the payment of the Rents and the prompt and full performance by the Initial Lessee of these covenants and the terms and conditions of any Related Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and demise to the Initial Lessee (and permitted successor Lessees) 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: (a) Conditions, restrictions and limitations, if any, now appearing of record; (b) Zoning ordinances of the County of Monroe, State of Florida, and any other applicable governmental body now existing or which may hereafter exist by reason of any legal authority during the Term of this Lease; and (c) The proper performance by the Lessee of all of the terms and conditions contained in this Lease, the Affordable Restrictions and Related Agreements, if any (for applicability see Exhibit F to this Lease). Section 2.03 Rental -Only Use. Contrary provisions herein notwithstanding the demised premises shall be used only for Affordable/Employee Housing rental uses throughout the Term unless the parties to the Lease otherwise agree in a publicly recorded writing. In all cases of conflict between local and federal LIHTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal LIHTC requirements without being deemed in breach of this Lease or the Affordable Restrictions. ARTICLE III Term Section .g.oi Term. To have and to hold the Demised Premises for a term of ninety - Page 8 of 57 nine (99) years commencing on the Commencement Date, and ending ninety-nine (99) years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter provided (the "Termination Date"). Lessee shall be given possession on the Effective Date and the terms and conditions set forth herein shall be binding on the parties as of the Effective Date. Lessee shall have the right to occupy the Demised Premises as of the Effective Date in order to allow Lessee to commence construction, as well as other activities related to the development and construction of the Project. As herein set forth, the Term will not commence until the first Affordable Housing Unit is completed and a certificate of occupancy has been issued for that Affordable Housing Unit, said date to be evidenced by the Commencement Date Agreement that the parties will upon completion of construction of the first Affordable Housing Unit execute in substantially the same form as that set forth in Exhibit C hereto. ARTICLE IV Rent Section 4.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 of Ten Dollars ($1o.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 an Association by Initial Lessee as may be authorized under this Lease, Lessor agrees to provide written notice of the Annual Base Rent to the Association at least ten (1o) 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. Annual Base Rent may be paid in advance for the entirety of the term upon which Lessee may record a notice of prepayment at its expense. Section 4.02. All amounts payable under Section 4.ol hereof, as well as all other amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, each payment to be paid to Lessor at the address set forth herein or at such other place within the continental limits of the United States as Lessor shall from time to time designate by notice to Lessee. Except for any income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums otherwise set forth herein. Section 4.03. It is intended that the Rent shall be absolutely net to Lessor throughout the Term, free of any taxes, costs, utilities, insurance expenses, liabilities, charges or other deductions whatsoever, with respect to the Demised Premises and/or the Page 9 of 57 ownership, leasing, operation, maintenance, repair, rebuilding, use or occupation thereof. Section 4.04. All amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when due as provided for in this Lease, shall bear interest at the highest rate allowable under Florida law from the time they become due until paid in full by Lessee. In addition, Lessee shall pay a late fee in the amount of ten (io%) 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 for dishonored checks pursuant to 125.0105, Florida Statutes, and/or any other applicable law. In addition, Lessor shall be reimbursed by Lessee for any costs incurred by Lessor as a result of a payment instrument being dishonored (e.g., legal fees). ARTICLE V Non -Subordination Section 5.01 Non -Subordination. Notwithstanding anything to the contrary contained in this Lease, the fee simple interest in the Demised Premises shall not be subordinated to any leasehold mortgage, lien or encumbrance of any nature. Furthermore, the Lessor's right to receive payment or performance under the terms of this Lease or adherence to any of its conditions or to the Affordable Restrictions (or performance under or adherence to the terms of any Sublease or related instrument) shall not be subordinated to any debt or equity financing, leasehold mortgage, lien, encumbrance or obligation of any nature whatsoever. ARTICLE VI Payment of Taxes and Utilities Section 6.01 Lessee's Obligations. As additional Rent, the Lessee shall pay and discharge, as they become due, promptly and before delinquency, all taxes, assessments, water and sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levies, licenses and permit fees and other governmental charges, general and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever, which at any time during the Term of this Lease may be assessed, levied, confirmed, Page 10 of 57 imposed upon, or grow or become due and payable out of or in respect of, or become a lien on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee from the sale or rental of the Affordable Housing Units to Sublessees, or be associated with any document (to which the Lessee is a party) creating or transferring an interest or estate in the Demised Premises. With regard to special assessments, if the right is given to pay either in one sum or in installments, Lessee may elect either mode of payment and Lessee's election shall be binding on Lessor. Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee, blessee, unless Lessee fulfills all such obligations pursuant to Section 6.0l, above, shall pad 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 (if contemplated or otherwise authorized under this Lease or the Affordable Restrictions), or be associated with any document (to which the Sublessee is a party) creating or transferring an interest or estate in the respective portion of the Demised Premises. Section 6.03 Obligations Altered. Nothing herein shall require the Lessee to pay municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner of the fee of the Demised Premises; provided, however, that if at any time during the term of this Lease the methods of taxation prevailing at the commencement of the term hereof shall be altered so as to cause the whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed and imposed, wholly or partially as a capital levy, or otherwise, on the rents received therefrom, or of any tax, corporation franchise tax, assessments, levy (including, but not limited to any municipal, state or federal levy), imposition or charge, or any part thereof, shall be measured by or based in whole or in part upon the Demised Premises and shall be imposed upon the Lessor, then all such taxes, assessments, levies, impositions or charges, or the part thereof so measured or based, shall be paid and discharged by the Lessee. All rebates on account of any takes, rates, levies, charges or assessments required to be paid shall belong to Lessee. Section 6.04 Mode of Payment. The Lessee (and any Sublessee, a� 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, Page 11 of 57 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 determined, and which written notice and bond or equivalent cash shall be given by the Lessee to the Lessor, not later than sixty (6o) days before the tax item or items proposed to be contested would otherwise become delinquent. Section 6.o5 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any of the payments required in this Article, then the Lessor may, but shall not be required to, pay the same and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts, at the highest rate allowed by law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding the foregoing, Lessee shall have the right to contest any taxes and assessments levied against Lessee in accordance with paragraph 6.04, above; 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.o6 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make any of the payments required in this Article, then the Lessor may, but shall not be required to, pay the same, and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts, at the highest rate allowed by law shall be repaid by the Sublessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the election of the Lessor to pay such taxes shall not waive the default thus committed by the Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any taxes and assessments levied against Sublessee; and provided Sublessee files the appropriate documentation to contest said tax or assessment, Sublessee shall not be in default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be construed to prevent or inhibit the assessment measures and collection remedies lawfully available to any taxing authority. Section 6.o7 Proration. The foregoing notwithstanding, the parties hereto Page 12 of 57 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 A�nraiser 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 portion(s) appraised, or where permissible by state law, "income approach" or other method of calculation. ARTICLE VII Mechanic's Liens Section 7.ot 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 whether or not the improvements are made with the consent of the Lessor. 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, or both where the Affordable Housing Unit is a rental unit, within thirty (30) days after the Lessee or Sublessee shall have been given written notice of such a claim having been filed, or within thirty (3o) 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 (3o) 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 (3o) 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 (3o) days, so as to cause the affected portion of the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim. Section 7.og Lessee's Default. If the Lessee shall fail, refuse, or neglect to perform its obligations as required in this Article, then the Lessor may, but shall not be required to, pay any sums required to cause the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor, upon the Page 13 of 57 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.o4 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to perform its obligations as required in this Article, then the Lessor may, but shall not be required to, pay any sums required to cause the Demised Premises and the Lessor's interest therein to be released from the legal effect of such claim and the amount or amounts of money so paid, including reasonable attorneys' fees and expenses which might be reasonably incurred because of or in connection with such payments, together with interest on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor in the same manner as though such amount were an installment of Rent specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall not waive the default thus committed by the Sublessee. ARTICLE VIII Governing Law, Cumulative Remedies Section 8.oi 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 any one remedy in advance of any other shall not result in waiver or compromise of any other remedy. ARTICLE IX Indemnification of Lessor Section 9.oi 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 Page 14 of 57 which may be made against the Lessor or against the Lessor's title in the Demised Premises, arising out of, or in connection with, or in any way related to the Demised Premises, except to the extent such claims may be caused by the gross negligence or intentional misconduct of the Lessor (or its agents or employees in the conduct of work for or at the direction of the Lessor) with respect only to any duty or obligation Lessor expressly assumes with respect to any portion of the Demised Premises, none of which duties and obligations are so assumed herein, and only to the extent allowed by Florida law and Florida Statute Section 768.28. 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 if contemplated and authorized as a home -ownership project, 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 9.02 Insurance. On the Effective Date the Lessee shall cause to be written and put in full force and effect a policy or policies of insurance as noted in Article X insuring the Lessee against any and all claims and demands made by any person or persons whomsoever for death, injuries or damages received in connection with the possession, operation and maintenance of the Demised Premises. All such policies shall name the Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as their respective interests may appear, as the persons insured by such policies. Any loss adjustment shall require the written consent of both the Lessor and Lessee. Page 15 of 57 Sectiong.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. Section g.o4 Permit Applications. Lessee shall make all applications for building and environmental permits and permits of any other type and nature required for the Project. Lessor designates Lessee to make such applications on its behalf and will cooperate in the execution of any documents necessary to complete the applications. Lessee shall be solely responsible for the content and accuracy of all such applications and shall hold harmless and indemnify Lessor for any errors, statements, and representations made in any such applications. Lessee shall indemnify and hold harmless Lessor for all activities performed or not performed by Lessee, for any of its acts or omissions and those of its contractors, agents, employees and servants as required by any permitting agency. Lessee shall abide by any permit requirements, conditions, encumbrances or restrictions of any kind on the real property which is the subject of this Lease. The conditions of any permit shall be required in any contract between Lessee and its contractors and sub- contractors. Direct costs associated with permits including fees, fines, mitigation and penalties shall be the obligation of the Lessee. ARTICLE X Insurance Section io.oi Property Insurance. From and after the Effective Date, the Lessee will keep insured any and all buildings and improvements upon the Demised Premises against all loss or damage by fire, flood and windstorm, together with "all risks" "extended coverage," which said insurance will be maintained in an amount sufficient to prevent any party in interest from being or becoming a co-insurer on any part of the risk, which amount shall not be less than the full Replacement Cost value of the relevant portions of the Demised Premises, and all of such policies of insurance shall include the name of the Lessor as an additional insured and shall fully protect both the Lessor and the Lessee as their respective interests may appear. In the event of destruction of buildings or improvements by fire, flood, windstorm or other casualty for which insurance shall be payable and as often as such insurance money shall have been paid to the Lessor and the Lessee, said sums so paid shall be deposited in a joint account of the Lessor and the Lessee in a bank designated by the Initial Lessee, Lessee or Lessee's Mortgagee and located in the County in which the Demised Premises is located, and shall be made available to the Lessee for the construction or repair (including any modification to the improvements sought by the Lessee and approved in writing by the Lessor with Lessor's approval not unreasonablywithheld), as the case may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or other casualty for which insurance money shall be payable and shall be paid out by the Lessor and the Lessee from said joint account from time to time on the estimate of any reliable architect licensed in the State of Florida officially overseeing of such reconstruction Page 16 of 57 and repair, certifying that the amount of such estimate is being applied to the payment of the reconstruction or repair and at a reasonable cost therefor; provided, however, that the total amount of money necessary for the reconstruction or repair of any building or buildings destroyed or damaged has been provided by the Lessee for such purpose and its application for such purpose assured. In the event of the destruction or damage of the improvements located on the Demised Premises, or any part thereof, and as often as any portion of said Demised Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the Lessee shall, within fifteen (15) months (or twenty-four (24) months for a substantially total loss) from the date of such damage or destruction, rebuild and repair the same in such manner that the buildings or improvements so rebuilt and repaired, and the personal property so replaced or repaired, shall be of the same or of a value higher than were the buildings or improvements and the personal property prior to such damage or destruction, and Lessee shall diligently prosecute the reconstruction or repairs without delay and have the same rebuilt and ready for occupancy as soon as reasonably possible after the time when the loss or destruction occurred. The 15-month period (or twenty-four (24) month period for a substantially total loss) 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 (1o) 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 (3o) days after the occurrence of the destruction. In the event this Lease has been assigned to an Association contemplated or authorized under this Lease or the Affordable Restrictions, the Association must obtain any necessary vote to terminate. In the event of termination, there shall be no obligation on the part of Lessee to restore or repair the improvements on the Demised Premises, nor any right of the Lessee to receive any proceeds collected under any insurance policies covering the improvements. If Lessee elects not to terminate this Lease in the event of destruction during the last ten (1o) 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. Page 17 of 57 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 oo-o1] as filed for use in Florida without the attachment of restrictive endorsements other than the elimination of medical payments and fire damage legal liability. General Aggregate $1,000,000 Products/Completed Operations $1,000,000 [coverage for one (1) year after project completion] Each Occurrence $1,000,000 Contractual Liability $1,000,000 Additional Named Insured: Lessor, or its assigns or designees, as from time to time designated by written notice to Lessee, shall be included as additional insureds for Commercial General Liability. Section tom 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 1o.o4 Other Insurance. Lessee shall maintain such other insurance and in such amounts as may from time to time be reasonably required by the Lessor against other insurable hazards which at the time are commonly insured against in the case of construction of buildings and/or in the case of premises similarly situated, due regard being or to be given to the location, construction, use and occupancy. In the event the Lessee believes the Lessor's requirement for such additional insurance is unreasonable the reasonableness of Lessor's request shall be determined in accordance with the rules of the American Arbitration Association. Such determination as to the requirement of coverage and the proper and reasonable limits for such insurance then to be carried shall be binding on the parties and such insurance shall be carried with the limits as thus determined until such limits shall again be changed pursuant to the provisions of this Section. The expenses of such determination shall be borne equally by the parties. This procedure may only be requested on each five (5) year anniversary date of the Lease. Section 1o. o5 Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage created pursuant to the provisions of Article XV elects, in accordance with the terms of such mortgage, to require that the proceeds of any casualty insurance be held by and paid out by the mortgagee, then such payment may be made, but in such event, it shall still be obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the manner set forth in this Article to assure complete payment for the work of reconstruction Page 18 of 57 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 o6 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. Absent circumstances reasonably excused under the conditions set forth in paragraph 14.03, in the case of the Lessee not entering into the reconstruction or repair of the building or buildings within a period of six (6) months from the date of payment of the loss, after damage or destruction occasioned by fire, windstorm, flood or other cause, and diligently prosecuting the same with such dispatch as may be necessary to complete the same in as short a period of time as is reasonable under the circumstances after the occurrence of such damage or destruction, then the amount so collected, or the balance thereof remaining in the joint account, as the case maybe, 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 (1o) 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 1o.w Direct Repayment. The foregoing notwithstanding, in the event the insurance proceeds are the sum of One Hundred Thousand and oo/1oo Dollars ($ioo,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 1o.oS 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 (3o) days written notice to the Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or subject to any assessments thereunder. Section 1o.00 Subsequent Lessees, Assignees. Sublessees and Grantees. Notwithstanding anything contained herein to the contrary, in the event an authorized 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 Page 19 of 57 not charge the Sublessees for said coverage as part of the Association fees to be paid by the individual Unit Owners (if this project is expressly authorized as a home -ownership project); then, in such event Sublessees shall secure the above -described insurance coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled to require replacement cost and other customary and reasonable insurance coverage(s) at least but only to the full replacement value of any Sublessees' and/or any governing Association's insurable interest in the Demised Premises. Any parties who subsequently become holders of any title or possessory interest to a portion of the Demised Premises, shall upon request provide, in a form satisfactory to Lessor, proof of customary and reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor as set forth in this Article X, at least to the extent and value of that subsequent interest holder's insurable interest. The same or similar procedures for the use and application of insurance proceeds as set forth above may be required for subsequent interest holders and the same remedies available to Lessor for Initial Lessee's failure to comply with such insurance requirements shall be available to Lessor with respect to any future interest holders. Future interest holders (including all Sublessees) shall name Lessor as an additional insured on any required insurance policies. ARTICLE XI Insurance Premiums Section ii.oi Insurance Premiums. The Lessee shall pay premiums for all of the insurance policies which the Lessee is obligated to carry under the terms of this Lease. In the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the right, but not the obligation, without notice to Lessee, to procure such insurance and/or pay the premiums of such insurance, in which case Lessee shall repay Lessor immediately upon demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies with respect to procurement of such insurance and/or payment of such insurance premiums in the event a future subsequent partial interest holder (e.g., Sublessee, Association) fails to obtain and pay for the necessary insurance. ARTICLE XII AssignmentjTransfer 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 rent to moderate or lesser income qualified Page 20 of 57 third parties, as defined in the Affordable Restrictions. Therefore, the Affordable Housing Units maybe rented and occupied without the Initial Lessee obtaining consent from Lessor for such 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 parry 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, but shall ultimately remain responsible for performance of such duties by any designated property manager. [NOTE: Following strike -through to be retained for record purposes.] 4 ki6ai i6essea's &Atwo to ipe deemed to kite rowipt askise, said respond shag @81asent 889 Page 21 of 57 Initial Lessee may subsequently be authorized by Lessor to assign its interest in this Lease for any portions of the Demised Premises 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. Lessor shall have fifteen W) business days from receipt of said documents to review and object to any contents thereof. In the event Lessor fails to provide written notice of its consent or denial in regard to said documents, said failure shall be deemed acceptance of the documents. PWORPRIPMV Lessor shall have the right to assign any of its duties and rights related to the assignment of Subleases, i.e. finding qualified porehaser msnies,-er renters in the case of rental units (unless the rental units are owned by Initial Lessee (or a Lessor -approved subsequent assignee of Initial Lessee's interests) 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 (as they maybe automatically subordinated to LIHTC requirements per other provisions of this Lease), 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. Lessee agrees to allow Lessor or its designee to provide lists of potential qualified renters of the Affordable Housing Units. Page 22 of 57 Lessor shall have the right to assign any of its duties and rights related to the assignment of Subleases, i.e. finding qualified porehaser msnies,-er renters in the case of rental units (unless the rental units are owned by Initial Lessee (or a Lessor -approved subsequent assignee of Initial Lessee's interests) 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 (as they maybe automatically subordinated to LIHTC requirements per other provisions of this Lease), 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. Lessee agrees to allow Lessor or its designee to provide lists of potential qualified renters of the Affordable Housing Units. Page 22 of 57 Section 12 02 Initial Sale/Lease of Unit By Develouer/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 only where Lessor subsequently provides authority to do so in writing or under the Affordable Restrictions. Notwithstanding anything contained herein to the contrary, all purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's requirements of moderate or lesser income affordable housing, adjusted for family size, and any other applicable Affordable Restrictions. In all cases of conflict between local and federal LI HTC rental, tenant eligibility and other guidelines, Lessee shall be entitled to adhere to governing federal requirements without being deemed in breach of this Lease or the Affordable Restrictions. Initial Lessee shall upon Lessor's request provide verification in a form and manner reasonably determined by Lessor that purchasers/sublessees/tenants for all Affordable Housing Units meet the requirements herein. If Lessor is entitled to a reservation for initial purchase or assignment of the rights to purchase all or a portion of the newly completed Affordable Housing Units, such right and related procedures may be set forth or referenced in Exhibit F to this Lease. Section 12 03 Assignment/Transfer by, Sublessees. Where Lessor subsequently provides authority in writing or under the Affordable Restrictions for the Affordable Housing Units to be sold as homeownership units, at such time as any individual Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable Housing Units and interests, the Sublessee shall be required to follow the procedures set forth herein and any procedure that may be set forth in the Affordable Restrictions, and any conveyance, transfer or other disposition and the acceptance of such transfers shall be automatically deemed an agreement to the conditions set forth herein. Section 12.04 Required Notice of Restrictions. Any conveyance, lease, assignment, grant or other disposition of any interest made with respect to any portion of the Demised Premises, including but not limited to any recorded Association governing documents, other than those mortgage interests provided for in Article XV, shall contain the following required Notice of Restrictions in a conspicuous location on the upper one-half of the first page of the relevant instrument effectuating the interest in bold capital typed letters greater than or equal to 14 point font: NOTICE OF RESTRICTIONS ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME, MEANS, RESALE PRICE, RENTAL AND MORTGAGE LIMITATIONS, INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL RECORDS BOOK _, PAGE _. OF THE PUBLIC RECORDS OF MONROE COUNTY, FLORIDA. Page 23 of 57 The book and page numbers of the first recorded page of this Lease and the first recorded page of any recorded 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 12.05 Follow on Sales and Assignments of Ground Lease Requirements: Right of First Refusal. Unless otherwise subsequently authorized in writing or by the Affordable Restrictions or unless otherwise as set forth in subsection e., below, or in another provision herein, only rentals of Affordable Housing Units are contemplated. However, where Lessor subsequently provides authority in writing or under the Affordable Restrictions for the Affordable Housing Units to be sold as homeownership units 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. b. Lessor shall have for thirty (3o) days from the date of receipt of the written Transfer Notice to exercise and/or to assign a right of first refusal granted hereunder to purchase the Affordable Housing Unit or to find or identify to the selling party in writing a qualified purchaser who meets the income and other requirements for purchasing the Affordable Housing Unit. Additionally: The total sales price for all interests to be transferred shall be the purchase price set forth in the Transfer Notice, which shall not exceed the highest price permitted under the Affordable Restrictions. All additional terms of the contract shall be consistent with the Affordable Restrictions. Sublessee hereby agrees to execute a contract with a pre -qualified purchaser identified by the Lessor (or the Lessor if it exercises its right of first refusal) and to cooperate with reasonable closing procedures not in conflict with the Affordable Restrictions. Page 24 of 57 2. In the event Lessor finds a qualified purchaser, Lessor will assist in coordinating the closing on the Affordable Housing Unit. The closing shall be scheduled to occur within seventy- five (75) days from the effective date of the contract for the sale of the Affordable Housing Unit, unless extended by the mutual agreement of the parties and Lessor. Should Lessor exercise its right of first refusal, it shall close under the same schedule set forth herein. C. In the event Lessor elects not to purchase or fails to identify a qualified purchaser who enters into a purchase contract within thirty (3o) 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, delayed or conditioned. 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 deems necessary to verify purchaser/Sublessee qualifications. All purchase and sale contracts shall be deemed to be contingent on the buyer and transaction being qualified under the Affordable Restrictions. Lessor and the proposed parties to a transfer transaction may agree to additional time periods necessary to verify full compliance with all aspects of the Affordable Restrictions. In no case shall Lessor, or its designees, be deemed to waive with respect to any party any requirement applicable to that party under the Affordable Restrictions where it turns out that such requirement was not in fact met, true or complied with. Lessor reserves, to itself and to its designees, all legal and equitable rights it deems necessary or appropriate to ensure that all portions of the Demised Premises are used for Affordable Housing, the purpose for which they were intended, including but not limited to termination of the sublease for any portion of the Demised Premises and Page 25 of 57 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 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 lesser of (i) the purchase price paid by the offeror, or (ii) 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 (which procedures shall not, however, conflict with Initial Lessee's intended management of the Demised Premises as a LIHTC property as contemplated herein). In such case, a Sublessee may rent its Unit so long as all rental agreements follow the guidelines and procedures set forth herein and in the Affordable Restrictions and any LIHTC requirements, including but not limited to, providing Monroe County with a copy of the proposed rental agreement for review and approval, unless this requirement is otherwise waived or modified in writing by Lessor. Additionally, the rental agreement must include a copy of any 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 Page 26 of 57 Affordable Housing Unit containing a term greater than one (i) year, or containing an automatic renewal term that would frustrate Lessor's rights or continued affordability expectations established under this Lease or the Affordable Restrictions. Additionally, in the event a tenant has been cited for a violation of the rules and regulations of the Association more than twice in any calendar year, Sublessee hereby agrees not to renew said lease without first obtaining the approval of the Association Board of Directors, and said approval may be withheld in their sole and absolute discretion. Any rental agreement shall contain the following warning prominently set forth in writing: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT,, H�ALL NOTDBE LIABLE OR Y CHAPTER 83 FLORIDA STATUTES, THE RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'S PERSONAL PROPERTY• Section 12 o6 Assignment by Lessor. This Lease shall be freely assignable by the Lessor, and upon such assignment, the Lessor's liability shall cease and Lessor shall be released from any further liability. In the event the ownership of the land comprising the Leased Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any other person or entity, this Lease shall not cease, but shall remain binding and unaffected. Section 12 07 Death of a Unit Owner. In the event the Owner of an Affordable Housing Unit dies, Lessor shall, unless for good cause shown, consent to a transfer of the leasehold interest to the spouse, children) or other heirs, devisees, legatees or beneficiaries of the Affordable Housing Unit Owner provided that such persons state, in writing, under oath that they have reviewed the terms of this Lease and any related documents, and that they understand and accept the terms of this Lease by signing an acknowledgement, which is substantially in a form similar to that attached hereto as Exhibit E. All spouses, heirs, devisees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable satisfaction that they qualify for ownership and/or occupancy of an affected Affordable Housing Unit as provided for under this Lease and in the Affordable Restrictions. All estates and leasehold or other interests granted in or conveyed with respect to any of the Demised Premises do not extend to any degree so as to limit or inhibit the intent and operation of this Lease and the Affordable Restrictions, it being expressly and irrevocably accepted on behalf of all future Sublessees and all those who would or might succeed to their interests, that these Demised Premises and each and every portion thereof, for the entire Term of this Lease, are to be used as affordable housing according to the Affordable Restrictions. In the event the spouse, heirs, devisees, legatees or beneficiaries of a deceased Owner do not meet the requirements for affordable housing, such persons shall not occupy the premises and shall not be entitled to possession, except and only to the extent that the Lessor permits same, under conditions that it determines furthers the goals and public purposes of this Lease and the Affordable Restrictions. Therefore, in such event, the heirs of the decedent shall, if required by Lessor, transfer their interest in the Affordable Housing Page 27 of 57 Unit in accordance with the provisions of this Article MI 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.o8 Administrative Fees. With the exception of the initial sales by Initial Lessee, where the Lessor authorizes sales of units for individual home -ownership purposes, the Lessor or its designee shall be entitled to charge three and one-half percent (31/2 %) of the Purchase Price (gross compensation however described) for any transferred interest (other than simple security mortgage interests or rental agreements) in which Lessor identified the purchaser, as an administrative fee for coordinating the closing on any Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of closing. This fee does not include other seller and buyer closing related costs such as title insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions, insurance, homeowners' assessments, loan expenses and the like, or rental management or processing fees for rental units. In the event Lessor was unable to identify a purchaser, Lessor shall still be entitled to an administrative fee of one and one-half percent (i V2 %) of the Purchase Price for review of the contract and assistance with coordinating the closing on the Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its designee shall be authorized to designate closing, escrow and title agents involved in all transactions involving interests subject to this Lease. After the initial sale of each Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from time to time, establish, promulgate, revise and/or waive all or part of such fees related to the administration of this Lease and any Subleases, but in no event may Lessor increase the amount of the administrative fee to an amount in excess of three and one-half percent (31/2 %) for an owner who purchased his or her Affordable Housing Unit without actual, constructive or regulatory notice of the potential applicability of a greater percentage fee. ARTICLE XIII Condemnation Section im of Eminent oomain: 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 (3o) days after such award has been made, then the matters in dispute shall be determined in accordance with the rules of the American Arbitration Association. Such determination made by the arbitration shall be binding on the parties. If the legal title to the entire Demised Premises be wholly taken by condemnation, the Lease shall be cancelled. Page 28 of 57 Section 13 02 Apportionment. Although the title to the building and improvements placed by the Lessee upon the. Demised Premises will on the Termination Date pass to the Lessor, nevertheless, for purpose of condemnation, the fact that the Lessee placed such buildings on the Demised Premises shall be taken into account, and the deprivation of the Lessee's use (and any use of a Sublessee) of such buildings and improvements shall, together with the Term of the Lease remaining, be an item of damage in determining the portion of the condemnation award to which the Lessee or Sublessee is entitled. In general, it is the intent of this Section that, upon condemnation, the parties hereto shall share in their awards to the extent that their interests, respectively, are depreciated, damaged, or destroyed by the exercise of the right of eminent domain. In this connection, if the condemnation is total, the parties agree that the condemnation award shall be allocated so that the then value of the property, as though it were unimproved property, shall be allocated to the Lessor, and the then value of the building or buildings thereon shall be allocated between the Lessor and Lessee after giving due consideration to the number of years remaining in the Term of this Lease and the condition of the buildings at the time of condemnation. The Lessee shall not be precluded from any condemnation remedy otherwise available to it by law. ARTICLE XIV Construction Section 14Q1 Requirement to Construct Project. (a) Initial Lessee shall commence construction of the Project by the earlier of one hundred twenty (12o) days after the issuance of the building permits for the construction of the Project or February 28, 2oog, and shall substantially complete construction of all twenty-eight (28) Affordable Housing Units within eighteen (18) months thereafter. The foregoing limitation of time for the completion of the Project may be extended by written agreement between the parties hereto. (b) During the course of construction of the Project, Initial Lessee shall provide to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in their possession or under their control where such information is subject to public disclosure under the provisions of Chapter ng, 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 29 of 57 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 from the Lessor, shall, during the term of this Agreement and for a period of five (5) years the date of termination of this Agreement, have access to and the right to examine and audit any Records of the Lessee involving transactions related to this Agreement. (c) The Project shall be constructed in accordance with the requirements of all laws, ordinances, codes, orders, rules and regulations of all governmental entities having jurisdiction over the Project, including, but not limited to, the Lessor. (d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all necessary approvals, permits and licenses required by applicable governmental authorities for the construction, development, zoning, use and occupation of the Project. Lessor agrees to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals, permits and licenses, provided that such approvals, permits and licenses shall be obtained at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be construed to obviate or lessen any requirements for customary development approvals from any permitting authority, including the Lessor. Nothing in this Lease shall be construed as the Lessor's delegation or abdication of its zoning authority or powers and no zoning approval that Initial Lessee may require to complete its performance under this Lease has been or shall be deemed agreed to, promise or contracted for by this Lease. (e) Construction of the Project on the Demised Premises prior to and during the Term of this Lease shall be performed in a good and workmanlike manner, pursuant to written contracts with licensed contractors and in accordance with any and all requirements of local ordinances and with all rules, regulations and requirements of all departments, boards, officials and authorities having jurisdiction thereof. It is understood and agreed that the plans and specifications for all construction shall be prepared by duly qualified architects/engineers licensed in the State of Florida. (f) 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 or the Initial Lessee or Lessee in his or her individual capacity, and no member, officer, agent or employee of Monroe County or the Initial Lessee or Lessee 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 Page 30 of 57 race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap where the handicap does not affect de e�abanilatymo{ al � gaurding non-discriminationto perform in a position of employment, and to abide by all fe (h) Lessee shall be entitled during the full term of this Lease to make alterations to the Demised Premises in accordance with the requirements set forth in sub -paragraph (e), above. 1g Q2 Access to the Project and hisuection. The Lessor or its duly appointed agents shall have the right, at all reasonable tunes upon the furnishing of reasonable notice under the circumstances (except in an emergency, when no notice shall be necessary), to enter upon the common area of the Leased Premises to examine and inspect said area to the extent that such access and inspection are reasonably justified to protect and further the Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county or State code or building inspectors, and the like, without limitation. Initial Lessee shall permit building and code inspectors' access customary to the performance of their duties related to projects of the nature contemplated herein, said notice requirements notwithstanding. o ; Forced Delay in Performance. Notwithstanding any other provisions of this Lease to the contrary, the Initial Lessee shall not be deemed to be in default under this Lease where delay in the construction or performance of the obligations imposed by this Lease are caused by war, revolution, labor strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, labor disputes, governmental restrictions, embargoes, litigation (excluding litigation between the Lessor and the Initial Lessee), tornadoes, hurricanes, tropical storms or other severe weather events, or inability to obtain or secure necessary labor, materials or tools, delays of any contractor, subcontractor, or supplier, or unreasonable acts or failures to act by the Lessor, or any other causes beyond the reasonable control of the Initial Lessee. The time of performance hereunder shall be extended for the period of any forced delay or delays caused or resulting from any of the foregoing causes. 14.04 Easements. Lessee shall be authorized to grant reasonable and necessary easements for access and utilities customary for similar land uses and construction projects in Monroe County subject to Lessor's attorney's review and approval for substance and form of easement instruments, which approval shall not be unreasonably withheld, delayed or conditioned. Lessor shall make objection to any proposed easement instruments within fifteen (15) business days of receipt of copies thereof, or Lessor's approval shall be deemed granted. ARTICLE XV Mortgage Financing Section 1s01 Construction Financing By Initial Lessee. Initial Lessee shall have the Page 31 of 57 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 any investor group or entity formed and lawfully authorized to participate in a LIHTC financing arrangement, a Federal or State Savings & Loan association, Bank or Trust Company, Insurance Company, Pension Fund or Trust (or to another private lender so long as the terms and conditions of the financing from private lender are on substantially similar terms to those then existing by the other lenders referred to in this Section), or to similar lending institutions authorized to make leasehold mortgage loans in the State of Florida, or to any public or quasi -public lender. (b) Until the time any leasehold mortgage(s) shall be satisfied of record, when giving notice to the Initial Lessee with respect to any default under the provisions of this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s) (including assignments thereof) as recorded in the Public Records of Monroe County, Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a copy of such notice has been mailed to such leasehold mortgagee(s), which notice must specify the nature of each such default. Initial Lessee shall provide Lessor with written notice of the book and page nCumbers the Demised Premumber of the Pubc �sesf in lading modifications onroe County, aand for each mortgage by which it assignments thereof. (c) In case the Initial Lessee shall default under any of the provisions of this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such default whether the same consists of the failure to pay Rent or the failure to perform any other matter or thing which the Initial Lessee is required to do or perform and the Lessor shall accept such performance on the part of the leasehold mortgagee(s) as though the same had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section 15.01 shall have, in addition to any period of grace extended to the Initial Lessee under the terms and conditions of this Lease for a non -monetary default, a period of sixty (6o) 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 (3o) 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.o1(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 or other legal entity formed by or on behalf of such leasehold mortgagee(s) or Page 32 of 57 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 (3o) days from the date of such termination and such written request and such new Lease is accompanied by payment to the Lessor of all amounts then due to the Lessor, including reasonable counsel fees, court costs and disbursements incurred by the Lessor in connection with any such default and termination as well as in connection with the execution, delivery and recordation of such new Lease, less the net income collected by the Lessor subsequent to the date of termination of this Lease and prior to the execution and delivery of the new Lease, and any excess of such net income over the aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due under such new Lease. Any new Lease referred to in this Section 15.o1(d) shall not require any execution, acknowledgement or delivery by the Lessor in order to become effective as against the Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed to have executed, acknowledged and delivered any such new Lease immediatelytupon the receipt by the Lessor; and such new Lease shall be accompanied by (i) payment Lessor of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall theretofore have received written notice; and (ii) an agreement by the leasehold mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold mortgagee(s) shall not theretofore have received written notice. In addition, immediately upon receipt by the Lessor such new Lease, as provided in this Section 15.o1(d), the Lessor, where appropriate to the circumstances, 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 (1o) 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) mortgage(s) 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 immediatelybecome and remainliable under this Lease as provided in Section 15.o1(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) mortgage(s) 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 Page 33 of 57 Lease by the leasehold mortgagee(s), where leasehold mortgagee(s) took title or ownership of or to any or all of the Initial Lessee's interest in the Lease and/or any portion of the Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof, the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and obligations of performance relating to construction, marketing and transfer to Sublessees and it shall be deemed and construed, without further agreement between the Lessor and the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees' purchaser(s) or assignee(s) at any such sale or upon assignment of Initial Lessee's interest by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's interest has assumed and agreed to carry out any and all covenants and obligations of Initial Lessee, including but not limited to the construction, maintenance and management of the Affordable Housing Units contemplated herein. In no event shall any protections afforded a( ) leasehold mortgagee(s) under this Lease be construed to permit eventual use of the Demised Premises for purposes inconsistent with this Lease or the Affordable Restrictions. (g) Within ten (io) 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 known and maybe 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). 0) 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 Page 34 of 57 or conveyance shall create a merger of this Lease into a fee simple title to the Demised Premises. This subparagraph 0) 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). (1) In conjunction and contemporaneously with the sale or transfer of each Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the release of any and all applicable portions of its (their) mortgage(s) 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 1.5 02 Permitted Mortgages for Sublessees (Unit Owners). The individual Affordable Housing Unit Owners/ Sublessees shall have the right to encumber by mortgage their interests in any Sublease, improvements or any associated portions of the Demised Premises related to their interests in the individual Affordable Housing Units to a Federal or State Savings Loan Association, Bank, Trust Company or similar lending institution, subject to the following requirements: (a) The mortgage(s) encumbering the Affordable Housing Unit shall not exceed t00% 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 Page 35 of 57 relevant loan and shall not constitute an opinion or confirmation by Lessor that the corresponding loans or title insurance policies comply with or conform to the requirements of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of Lessor's rights to enforce same; (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 instructs the mortgagee or any party conducting the closing of a sale or through an unauthorized transfer to pay the amount of said excess directly to Lessor. In the event, for any reason, such excess proceeds are paid to Sublessee, Sublessee hereby agrees to promptly pay the amount of such excess to Lessor. ARTICLE XVI Default Section 16 1 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, any mortgagees for which Lessor has previouslybeen provided requests for such notice and current detailed contact information in the manner set forth for recording and communicating to Lessor a "Certificate of Notice" as set forth in Section 20.03, hereof, and up to one specifically designated investment limited partner for which Lessor has previously been provided a request for such notice and detailed contact information, ten (1o) days written notice of such default and Lessee or any other party on its behalf fails to cure such default within ten (1o) days of verifiable receipt of said notice. Page 36 of 57 Except as to the provisions or events referred to in the preceding paragraph of this Section, Lessee, Mortagees and Limited Partners shall not be deemed to be in default under this Lease unless Lessor shall first give to Lessee, Mortagees and Limited Partners (who have provided Lessor with current contact information and who are recognized under this Lease as being entitled to notice) thirty (30) days written notice of such default, and Lessee fails to cure such default within the immediate thirty (3o) day period thereafter, or, if the default is of such a nature that it cannot be cured within thirty (3o) days, Lessee fails to commence to cure such default within such period of thirty (3o) days or fails thereafter to proceed to the curing of such default with all possible diligence. Mortgagees and investor general or limited partners shall be entitled to cure Lessee defaults on the same terms and conditions as the Lessee. Regardless of the notice and cure periods provided herein, in the event that more rapid action is required to preserve any right or interest of the Lessor in the Demised Premises due to any detrimental event or occurrence (such as, but not limited to, payment of insurance premiums, actions to prevent construction or judgment lien foreclosures or tax sales), then the Lessor is empowered to take such action and to request reimbursement or restoration from the Lessee as appropriate. Section 16.02 Default. In the event of any material breach of this Lease by Lessee, Lessor, and after the necessary notice and cure opportunity provided to Initial Lessee and other parties, in addition to the other rights or remedies it may have, shall have the immediate right to terminate this Lease according to law. However, during the initial seventeen (17) years of the Term, (i) any determination of "material breach" shall be judicially made in a court of competent jurisdiction in Monroe County, Florida, and (ii) Lessor shall have no right to terminate this Lease, but shall have all other rights and remedies available at law or in equity including, without limitation, specific performance and injunction. In any action by Lessor asserting a violation of the Affordable Restrictions, Lessee shall have the burden of proof with respect to such matter. Termination of the Lease, under such circumstances, shall constitute effective, full and immediate conveyance and assignment to Lessor of all of the Demised Premises, improvements and materials and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protection as provided herein. Furthermore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the other rights or remedies it may have, shall have the immediate right of re-entry (as may be lawfully conditioned per application of Chapter 83, Florida Statutes, as amended) and may remove all persons and personal property from the affected portions of the Demised Premises. Such property maybe removed and stored in a public warehouse or elsewhere at the cost of and for the account of Lessee, or where statutory abandonment or unclaimed property law permits, disposed of in any reasonable manner by Lessor without liability or any accounting therefore. Included in this right of reentry, and subject to Initial Lessee's rights, if any, shall be any instance wherein a Sublessee renounces the Lease or a Sublease or abandons all or any portion of 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 -let the Page 37 of 57 repossessed property for the whole or any part of the then unexpired term, receive and collect all Rent payable by virtue of such reletting, and hold Sublessee liable for any difference between the Rent that would have been payable under this Lease and the net Rent for such period realized by Lessor, by means of such reletting. However, such Lessor rights shall not abrogate a mortgagee's rights to the extent those rights do not conflict with or injure Lessor's interests as established under this Lease. Personal property left on the premises by a Sublessee maybe stored, sold, or disposed of by Lessor, and Lessor accepts no responsibility other than that imposed by law. Should Lessor elect to re-enter, as herein provided, or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may either terminate this Lease or it may from time to time, without terminating this Lease, re - let the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such Rent or Rents and on such other terms and conditions as Lessor in its sole reasonable discretion may deem advisable with the right to make alterations and repairs to the Demised Premises. On each such re -letting Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other than Rent due under this Lease, the expenses of such re -letting and of such alterations and repairs, incurred by Lessor, and the amount, if any, by which the Rent reserved in this Lease for the period of such re -letting (up to but not beyond the term of this Lease) exceeds the amount agreed to be paid as Rent for the Demised Premises for such period of such re -letting. Notwithstanding any such re -letting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should Lessor at any time terminate this Lease for any breach, in addition to any other remedy it may have, Lessor may recover from Lessee all damages incurred by reason of such breach, including the cost of recovering the Demised Premises, which amounts shall be immediately due and payable from Lessee to Lessor. Section 16 0i 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 Page 38 of 57 shall have the same rights set forth in this Section with respect to any future subinterest holder's respective portion of the Demised Premises. Section 16.oA Default Period. All default and grace periods shall be deemed to run concurrently and not consecutively. Section 16 o5 Affordable Restrictions. In the event twenty percent (ao%) or more of the apartment units are failing to comply with the Affordable Restrictions at any given time premees, such an occurrence will be considered a material default by the offending party - --- --- ----=a -= = -- • , subject to Lessor's compliance with any applicable default notice provisions provided elsewhere in this Lease and Lessee's, Mortgagees and Limited Partners applicable cure rights, if any. Lessee hereby agrees that all occupants shall use the Leased Premises and Improvements for affordable residential purposes only and any incidental activities related to the residential use as well as any other uses that are permitted by applicable zoning law and approved by Lessor. . ARTICLE XVII Repair Obligations Section mof Repair Obligations. During the continuance of this Lease the Lessee, and every Sublessee with respect to their leased or purchased portions of the Demised Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures, landscaping and equipment which are brought or constructed or placed upon the Demised Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste or neglect of any building or other property to be committed, except for that of normal wear and tear. The Lessee will repair, replace and renovate such property as often as it may be necessary in order to keep the buildings and other property which is the subject matter of this Lease in first class repair and condition. Additionally, Lessor shall not be required to furnish any services or facilities, including but not limited to heat, electricity, air conditioning or water or to make any repairs to the premises or to the Affordable Housing Units. ARTICLE XVIII Additional Covenants of Lessee/Lessor Page 39 of 57 Section 18.01 Legal Use. The Lessee covenants and agrees with the Lessor that the Demised Premises will be used primarily for the construction and operation of a multi -unit affordable housing complex and the other matters as may be set forth in this Lease, with related amenities and facilities, and for no other purposes whatsoever without Lessor's written consent. Section 18.02 Termination. Upon termination of this Lease, the Lessee will peaceably and quietly deliver possession of the Demised Premises, unless the Lease is extended as provided herein. Therefore, Lessee shall surrender the improvements together with the leased premises. Ownership of some or all improvements shall thereupon revert to Lessor. Section 18 0-i Recovery of Litigation Expense. In the event of any suit, action or proceeding, at law or in equity; by either of the parties hereto against the other, or any other person having, claiming or possessing any alleged interest in the Demised Premises, by reason of any matter or thing arising out of or relating to this Lease, including any eviction proceeding, the prevailing party shall recover not only its legal costs, but reasonable attorneys' fees including appellate, bankruptcy and post judgment collection proceedings for the maintenance or defense of said action or suit, as the case may be. Any judgment rendered in connection with any litigation arising out of this Lease shall bear interest at the highest rate allowed by law. Lessor may recover reasonable legal and professional fees attributable to administration, enforcement and preparation for litigation relating to this Lease or to the Affordable Restrictions from any person or persons from or to whom a demand or enforcement request is made, regardless of actual initiation of an action or proceeding. Section 18 04 Condition of the Demised Premises. Lessee agrees to accept the Demised Premises in its presently existing condition "as -is". It is understood and agreed that the Lessee has determined that the Demised Premises are acceptable for its purposes and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or cause to be brought to the Demised Premises adequate connections for water, electrical power, telephone, stormwater and sewage and shall arrange with the appropriate utility companies for furnishing such services with no obligation therefore on the part of Lessor. The Lessor makes no express warranties and disclaims all implied warranties. Lessee accepts the property in the condition in which it currently is without representation or warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the nature, condition or usability of the Demised Premises, or the uses to which the Demised Premises maybe 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.oS Hazardous Materials. Lessee, its Sublessees and assignees shall not permit the presence, handling, storage or transportation of hazardous or toxic materials or Page 40 of 57 medical waste ("hazardous waste") in or about the Demised Premises, except in strict compliance with all laws, ordinances, rules, regulations, orders and guidelines of any government agency having jurisdiction and the applicable board of insurance underwriters. In no event shall hazardous waste be disposed of in or about the Demised Premises. For purposes herein, the term hazardous materials or substances shall mean any hazardous, toxic or radioactive substance material, matter or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement and shall include petroleum products and asbestos as well as improper or excessive storage or use of common household cleaning and landscaping chemicals, pesticides, batteries and the like, and those materials defined as hazardous substance or hazardous waste in the Comprehensive Environmental Response Compensation and Liability Act and/or the Resource Conservation and Recovery Act. Lessee shall notify Lessor immediately of any known 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, unless such discharge is caused by Lessor or any of its agents or employees. Lessor and Initial Lessee hereby warrant and represent that to the best of their knowledge, the Demised Premises is free of any hazardous waste. Lessor shall be liable for environmental damages according to the extent made so by law for periods following its taking possession of the Demised Premises upon the Effective Date. Section 18.o6 Recordation. Lessee, within five (5) business days after execution of this Lease, shall record a complete, true and correct copy of the Lease and any addenda or exhibits thereto and any Related Agreement(s) in the Public Records of Monroe County, Florida and shall provide Lessor with the written Clerk's receipt of the book and page number where recorded and the original Lease and Related Agreement(s) after recordation. ARTICLE XIX Representations Warranties of Title and Quiet Eniovment and No Unlawful or Immoral Purpose or Use Section ig of Representations Warranties of Title and Quiet Elijg=ent. Lessor represents and warrants that to its knowledge, there are no material claims, causes of action or other proceedings pending or threatened in respect to the ownership, operation or environmental condition of the Demised Premises or any part thereof. Additionally, the Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of the covenants and conditions required by the Lessee to be kept and performed, the Lessee shall have quiet and undisturbed and continued possession of the Demised Premises from claims by Lessor. Section lU o2 No Unlawful or Immoral Purpose or Use. The Lessee, as long as it Page 41 of 57 has any interest in or to any portion of the Demised Premises, shall not occupy or use such portion for any unlawful or immoral purpose and will, at Lessee's sole cost and expense during such period of interest, 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 subletting applicable to Lessee hereunder. The parties agree that all coy enants, promises, conditions, terms, restrictions and obligations arising from or under this Lease and the Affordable Restrictions benefit and enhance the communities and Ipeighborhoods 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 0-1 Written Modifications. No modification, release, discharge orwaiver 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, and signed also by any mortgagee or limited partner of Lessee, or their duly authorized agents or attorneys, as long as such mortgagee or limited partner has both (i) filed in Public Records of Monroe County, Florida, a "Certificate of Notice" of their interest in this Lease and or the Demised Premises, said certificate setting forth complete and current contact information, the real estate parcel number assigned to the Demised Premises and the O.R. Records Book and Page Number of the first recorded page of this Lease, and (ii) provided a copy of the recorded certificate to the Lessor at its notice address(es) via 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. . 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 Page 42 of 57 instrument as of this date. No prior written lease or prior or contemporaneous oral promises or representations shall be binding. Section 20.o5 N ti s. 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 of default or requests to modify this Lease shall also be provided according to the foregoing methods to any mortgagee or limited partner of the Lessee that has complied with the provisions of Section 20.03, above. Notification to Lessor and Initial Lessee 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: Initial Lessee: SEA GRAPE II, I I Lessor: LTD. MONROE COUNTY ADMINISTRATOR c/o CDG SEA GRAPE II, LLC ATM: ROMAN GASTESI 2950 S.W. 27TH AVE. SUITE 200 11oo Simonton Street Miami, Florida 33133 Key West, FL 33040 Tel. 305-292-4441 Wachovia Affordable Housing Community Development Corporation, 301 South College Street, TW-1o, Charlotte, NC 28288-0177 (Attn: Asset Management) and MONROE COUNTY ATTORNEY PO Box 1026 Key West, Florida 33041 Te1.305-292-3470 Section 20 o6 Joint Liability. If the parties upon either side (Lessor and Lessee) consist of more than one person, such persons shall be jointly and severally liable on the covenants of this Lease. Section 20 o7 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. Page 43 of 57 Section 20.08 Captions. The captions used in this Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of or in any way affect this Lease. Section 20 og Table of Contents. The index preceding this Lease under the same cover is for the purpose of the convenience of reference only and is not to be deemed or construed in any way as part of this Lease, nor as supplemental thereto or amendatory thereof. Section 20 io Governing Law, Venue. This Agreement shall be construed under the laws of the State of Florida, and the venue for any legal proceeding to enforce or determine the terms and conditions of this Lease shall be Monroe County, Florida. Section 20.11 Holding Over. Any holding over after the expiration of the Term of this Lease, with consent of Lessor, shall be construed to be a tenancy from month to month, at twice the monthly Rent as required to be paid by Lessee for the period immediately prior to the expiration of the Term hereof, and shall otherwise be on the terms and conditions herein specified, so far as applicable. Section 20.12 Brokers. Lessor and Lessee covenant, warrant and represent that no broker was instrumental in consummating this Lease, and that no conversations or negotiations were had with any broker concerning the renting of the Demised Premises. Lessee and Lessor agree to hold one another harmless from and against, and agree to defend at its own expense, any and all claims for a brokerage commission by either of them with any brokers. Section 20.13 Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance shall at any time or to any extent be held invalid or unenforceable, the remainder of this Lease or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby. Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or other severe weather events, war or other reasons of like nature not the fault of the party delayed, in performing work or doing acts required under this Lease, the period for the performance of any such act shall be extended for a reasonable period. Section 20 is LessorlLessee Relationship Non -Reliance by Third Parties. This Lease creates a lessor/lessee relationship, and no other relationship, between the parties. This Lease is for the sole benefit of the parties hereto and, except for assignments or Subleases permitted hereunder and to the limited extent thereof, no other person or entity shall be a third party beneficiary hereunder. Except as expressly provided under this Lease or under the Affordable Restrictions, no person or entity shall be entitled to rely upon the Page 44 of 57 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. Initial Lessee's obligations to proceed with and complete the project under this Lease Agreement is contingent upon Initial Lessee obtaining construction financing; all necessary permits to build the Affordable Housing Units described herein; as well as Initial Lessee obtaining adequate cross access or other customary easements (e.g., utility) necessary or convenient for a project of this type. Lessor shall grant Lessee or its affiliates reasonable and customary easements required for Lessee or its affiliates to proceed with the development as contemplated herein. Lessor's obligation to grant such easements shall subject to Lessor's attorney's review and approval for substance and form of easement instruments, which approval shall not be unreasonably withheld, delayed or conditioned. Lessor shall make objection to any proposed easement instruments within fifteen (15) business days of receipt of copies thereof, or Lessor's approval shall be deemed granted. Therefore, in the event Initial Lessee is unable to obtain financing, permits or adequate cross easements so as to permit beginning of the eighteen (18)-month construction period provided for herein by no later than February 28, 2009, either party may terminate this Lease. Termination of the Lease under such circumstances shall constitute effective, full and immediate conveyance and assignment to Lessor of all of the Demised Premises, improvements, interests in and materials and redevelopment rights to and associated with the Demised Premises and the Project, subject to mortgagee protection as provided herein, as well as the immediate turnover by the Initial Lessee (and any person or entity affiliated with it) to Monroe County and/or the City of Marathon, Florida (in any manner the Monroe County Board of County Commissioners and the City of Marathon City Council may jointly request) any and all allocated or reserved Affordable Housing Unit allocations (commonlyloosely referred to in Monroe County as "ROGOs" and estimated here to number more or less twenty eight (28) allocations for the Project). Moreover, upon termination of this Lease at any time during the first fifteen (15) years of the Term, where due to Initial Lessee's default or inability to perform its obligations to complete construction or to subsequently maintain and/or manage the project as contemplated by this Lease (subject to various parties' cure rights), the Initial Lessee and any successor to its title, rights or interests in or to the aforementioned adjoining parcel contemplated for the "Phase I" aspect of the "Sea Grape" development (as reflected by among other things, that certain Development Order #2007-01, dated 1/31/07, as recorded in O.R. Book 2281, Page 1416, of the Public Records of Monroe County, Florida), shall accede to and grant Lessor or its assigns commercially and customary reasonable easements and the like with respect to the adjoining parcel in favor of the Demised Premises that may be necessary for its feasible development. Initial Lessee represents and warrants that it is affiliated or has substantive relationships with the Carlisle Group, Inc., and that company's principals and affiliates, and that the Initial Lessee and the person executing this Lease for the Initial Lessee is authorized to bind any of the foregoing parties to the potential Page 45 of 57 obligation to return Affordable Housing Unit allocations/reservations/ROGOs to Monroe County and/or the City of Marathon as set forth in this paragraph. Initial Lessee hereby acknowledges that in the event Initial Lessee terminates this Agreement for failure to timely begin and proceed with construction under this lease once Lessor or the Monroe County Land Authority has purchased the Demised Premises, Initial Lessee will not receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to such termination and the twenty-eight (28) affordable ROGO permit allocations now associated with the Property shall be deemed surrendered back to and returned to Monroe County and/or the City of Marathon. Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may pose health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings. Additional information regarding radon and radon testing may be obtained from your county health unit. Lessor Shan 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 release Lessor from same. Section 2018 Mold Disclosureold 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 maybe obtained from your county health unit or the EPA or CDC. Lessee and Sublessees accept responsibility to inspect for mold and take measures to reduce mold. Lessor shall not be responsible for mold testing for any persons purchasing, leasing or occupying any portion of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or claims related thereto and release Lessor from same. Section 20 19 Subsequent Changes in Law or Regulation. Where a change can reasonably be applied to benefit, enhance or support Lessor's affordable housing goals, objectives and policies, Lessor shall have the right to claim the benefit from any subsequent change to any applicable state or federal law or regulation that might in any way affect this Lease, the Affordable Restrictions, any Related Agreements or their respective application and enforceability, without limitation. In such instance, this Lease shall be construed or, where necessary, may be reformed to give effect to this provision, but such construction shall not permit a fundamentally inequitable result for any party or require of any party an action that would be unauthorized under or that would violate LIHTC or inequitably precipitate any event of default under any financing under any financing document related to the funding of the proposed project. Section 20.2o Government Purpose. Lessor, through this Lease and the Affordable Restrictions, furthers a government housing purpose, and, in doing so, expressly reserves and in no way shall be deemed to have waived, for itself or its assigns, successors, employees, officers, agents and representatives any sovereign, quasi -governmental and any Page 46 of 57 other similar defense, immunity, exemption or protection against any suit, cause of action, demand or liability. Section 20.21 Breach of Related A reemen Remedies. To the extent that any purchase and sale or Related Agreement relating to the Demised Premises incorporates, relates to and/or is contingent upon the execution of and/or any performance under this Lease, any material breach under such other agreement shall be a material breach of this Lease and any material breach under this Lease shall be a material breach of such other agreement. Moreover, the parties agree that any remedy available for any breach under this Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's complete discretion, with any election to avail itself or proceed under any particular remedial mechanism in no way to be construed as a waiver or relinquishment of Lessor's right to proceed under any other mechanism at any time or in any particular sequence. Section 20.22 Supplemental Administrative Enforcement. Lessor, or its appropriate agency, may establish under the Affordable Restrictions, as amended from time to time during the Term of this Lease, such rules, procedures, administrative forms of proceedings and such evidentiary standards as deemed reasonable within Lessor's legislative prerogative, to implement enforcement of the terms of this Lease and similar leases and the Affordable Restrictions, but such mechanisms and code enforcement proceedings, if any, shall not conflict with or require Lessee to act contrary to LIHTC requirements. 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 or the single allowed designated investor limited partner from access to an appropriate court of competent jurisdiction where the resolution of any dispute would be beyond the competence or lawful jurisdiction of any administrative proceeding. Section 20.23 Exceptions to Lease/Rental Prohibition. Under this Lease rental of Affordable Housing Units is not prohibited. In addition to rights recognized herein for Initial Lessee and certain "bulk" purchasers to rent units to tenants qualified under LIHTC regulations, which are not hereby restricted, Lessor or its designee, in its sole discretion, shall have the right to adopt as part of future Affordable Restrictions provisions to allow Sublessees the limited privilege to rent or lease their Affordable Housing Units to qualified persons, but such provisions shall not conflict with Initial Lessee's management of the Demised Premises as a LIHTC property. Requests for such approval shall be made in accordance with such procedures Lessor may in the future choose to adopt. It is contemplated, though not promised or required, that certain limited rental provisions may be adopted in the future for circumstances such as, for example, but without limitation: (a) A Sublessee's required absence from the local area for official military duty. (b) An illness that legitimately requires a Sublessee to be hospitalized for an extended period. Page 47 of 57 (c) A family emergency legitimately requiring a Sublessee to leave the Keys for a period longer than thirty (3o) days. Lessor, in its discretion, shall have the right to amend, modify, extend, rescind, decrease or terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at any time. Section 20.24 Drafting of Lease and any Related Agreement. The parties acknowledge that they jointly participated in the drafting of this Lease and any Related Agreements with the benefit of counsel, or had the opportunity to receive such benefit of counsel, and that no term or provision of this Lease or a Related Agreement shall be construed in favor of or against either party based solely on the drafting of this Lease or the Related Agreement. Section 20.25 Lessor's Duly to Cooperate. Where required under this Lease or Related Agreement, Lessor shall, to ensure the implementation of the public affordability purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee, Sublessees, mortgagees, title insurers, closing agents, government agencies and the like regarding any relevant terms and conditions contained herein. Section 20.26 Initial Lessee's Transfer of Partnership Interests. Nothing herein shall limit or preclude transfers of partnership interests of the Initial Lessee, or redesignation or substitution of a general partner of the Lessee. G:\W-RED\34756 - Carlisle\o8q - Sea Grape\1-Sea Grape II\Ground Lease\Seagrape H Lease draftV4.doc Page 48 of 57 IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands and seals, as of the day and year above written. Signed, Sealed and Delivered in the presence of two witnesses: Printed Name Date: Printed Name (as to Lessor) Printed Name 1+Arim swAn Printed (as to L STATE COUNTY OF MIAMI-DARE A Attest: Danny Kolhage, Clerk Deputy Clerk For CDC Partner ift'1tjw-.�� , General The fore omg instrument was acknowledged before me this �� day of Sept r, 201 by Lloyd J. Boggio, as President of and for CDG Sea Grape II, LLC, a Florida limited liability company, who is [ ] personally known to me, or who [ ] has produced a Notary Public Print Name: My Commission expires: Seal 0 0 0 a drivers license as identification. r■.......■.....■..■....Si�R�.SANCHEZ ■.r p�IARLENE CA Comm* DDOWT89 Expires 10119/2011 Florida Notary ASO., -0 APPROVED AS TO FORM AN&ALS IENCY BYPage 49 of57 FFICE DATE EXHIBIT A LEGAL DESCRIPTION Sea Grape II property: parcel:1. (Top Phase II on Survey dated 9/7/07 by Frederick H. Hildebrandt) A parcel of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida, more particularly described as follows: Begin at the intersection of the East line of said Section 11 and the Southeasterly right of way line of U.S. Highway 1; thence South along the said East line of Section 11 for 285.00 feet; thence West for 231.55 feet; thence North for 190.74 feet to the Southeasterly Right -of -Way line of U.S. Highway No. 1; thence N 67°51'00" E along the said Southeasterly Right -of -Way line of U.S. Highway No. 1 for 250.00 feet back to the Point of Beginning. Containing 55,079 s.f. or 1.26 acres, more or less. and: A strip of land in Section 1i, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida, more particularly described as follows: Commencing at the intersection of the East line of said Section 11 and the Southeasterly Right -of - Way line of U.S. Highway No.1; thence South 67°51'00" West, along the Southeasterly Right -of -Way line, for 250.00 feet to the Point of Beginning; thence South, parallel to said East line of Section 11 for 344.62 feet; thence West for 20.00 feet; thence North for 336.48 feet to said Southeasterly Right - of -Way line; thence North 67°51'00" East along said Southeasterly Right -of -Way line for 21.59 feet to the Point of Beginning. Containing 6,811.30 s.f. or 0.156 acres, more or less. Parcel II (Bottom Phase II on survey, dated 9/7/07 by Frederick H. Hildebrandt) A parcel of land in Section 11, Township 66 South, Range 32 East, Key Vaca, Monroe County, Florida, more particularly described as follows: Commence at the intersection of the East line of said Section 11 and the Southeasterly right of way line of U.S. Highway 1; thence South along the said East line of Section 11 for 859.0o feet to the Point of Beginning; thence continue South along the said East line of Section 11 for 70.23 feet; thence West for 231.55 feet; thence North for 94.84 feet; thence East for 140.00 feet; thence South for 24.61 feet; thence East for 91.55 feet back to the Point of Beginning. Containing 19,707 s.f. or 0.45 acres, more or less. Page 50 of 57 'Exhibit B Property Depiction mod. Acc Eos _Ks_ AE 7 — — . -0, R 0 P.O.C. t Sea Grape Apartments, LTD. U.S. Highway No. 1, Marathon, Florida Sketch to accompany Legal Description 0" No.: Phase II 07-367 k.w. I*-IDo, I Re( AE m 0 P.O.B. I Phase I o op_ 3 e n v 0 0 A[ 7 0 F z x o t A i� f 0 r e 0 n n C � N AE 8 =� 7 O 7 VI P.O.B. v Phase 1t b, rn P.O.B. C -- Exchange Parcel Drainage Easement, N VW r me 0 Sheet t of 2 FREDERM H. HIMBRANOT E MOMM PLANNOt ARMOR 3152 Northside Drive Style 201 Key West. A. 330e0 FoO.S)(305)�-0237 fhadeD1eboacuth.net it This Instrument Prepared By: EXHIBIT C COMMENCEMENT DATE AGREEMENT 2008 by and between This Agreement is made as of ("Lessee") ("Lessor") and WHEREAS, Lessor and Lessee have entered into a Lease dated _, 2008 for n Exhibit A attached to the Lease which was duly recorded at Book _�a� Page Premises designated o p•.�rTri]j j� _ - - • � •. - • _ - _ �� use-` _ • l _ • _ __ ___-___ �� _ _ �_ _- - 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: EXECUTED as a sealed instrument on the date first set forth above. LESSOR: By: Attest: Danny Kolhage, Clerk Witness 1 Witness 2 LESSEE: By: Print Name: Title: Witness 1 Witness 2 Page 52 of 57 EXHIBIT D (Example) Term Po hm p m Rol BSA Term Porti9i %aRm $10.00 Lease Year 51 May 1 2058 $10.00 Lease Year 1 May 12009 Lease Year 52 May 1 2059 $10.00 Lease Year 2 may 1 2009 $ 10.00 Lease Year 53 May 1 2060 $10.00 Lease Year 3 May 1 2010 $10.00 Lease Year 54 May 1 2081 $10.00 Lease Year 4 May 1 2011 $10.00 Lease Year 55 May 1 2062 $10.00 Lease Year 5 May 1 2012 $10.00 Lease Year 58 may 1 �3 $10.00 Lease Year 6 May 1 2013 $10.00 Lease Year 57 May 12064 510.00 Lease Year 7 May 1 2014 S10.00 Lease Year 58 May 1 2085 $ 10.00 Lease Year 8 May 12015 $10.00 Lease Year 59 May 1 2088 $10.00 Lease Year 9 May 12016 $10 00 Lease Year 80 May 1 2067 $10.00 Lease Year 10 May 1 2017 $10.00 Lease Year 61 May 12068 $10.00 Lease Year 11 May 1 2018 $10.00 Lease Year 62 May 1 2069 $10.00 Lease Year 12 May 1 2019 $10•DO Lease Year 63 may 12070 $10.00 Lease Year 13 Ma 1 2020 y $10.00 Lease Year 64 May 1 2071 $10.00 Lease Year 14 May 12021 $10.00 Lease Year 65 May 1 2072 $10.00 Lease Year 15 May 12022 $10.D0 Lease Year 66 May 1 2073 $10.00 Lease Year 16 May 1 2023 $10.00 Lease Year 67 May 1 2074 $10.D0 Lease Year 17 May 1 2024 $10.00 Lease Year 68 nnay 1 2075 $10.00 Lease Year 18 1 2025 MayYar $10.00 Leasee 69 May 1 2076 $10.00 Lease Year 19 May 12028 $10.00 Lease Year 70 May 1 2077 $10.00 Lease Year 20 may 1 2027 $10.00 Lease Year 71 µay i 2078 $10.00 Lease Year 21 May 1 2028 $ 10.00 Lease Year 72 May 1 2079 $ 10.00 Lease Year 22 May 1 2029 $ 10.00 Lease Year 73 May 12080 $10.00 Lease Year 23 May 1 2030 $10.00 Lease Year 74 May 1 2081 $10.00 Lease Year 24 May 12031 $10.00 Lease Year 75 May 1 2082 $10.00 Lease Year 25 L May 1 2032 $10.00 Lease Year 76 May 1 2083 $10.00 Lease Year 26 May 1 2033 $10.00 Lease Year 77 May 1 2084 $10.00 Lease Year 27 May 12034 $10.00 Lease Year 78 May 1 2085 510.00 Lease Year 28 May 1 2035 $10.00 Lease Year 79 May 1 2086 $10.00 Lease Year 29 May 1 2038 $10.00 Lease Year 80 May 1 2087 $10.00 Lease Year 30 Mey 1 2037 $10.00 Lease Year81 Masi 2088 $10.00 Lease Year 31 May 1 2038 . $1000 Lease Year 82 May 1 20B9 $10.DO Lease Year 32 May 1 2039 $10.00 Lease Year 83 Way 1 �90 $10.00 Lease Year 33 May 1 2040 $10.00 Lease Year 84 May 1 2091 $10.00 Lease Year 34 May 1 2041 $10.00 Lease Year 85 May 1 2092 $10.00 Lease Year 35 May 1 2042 $10.00 lease Year 88 May 1 2093 $10.00 Lease Year36 May i 2043 $10.00 Lease Year 87 May $10.00 Lease Year 37 May 1 2044 $10.00 Lease Year 88 May 12095 $ 10.00 Lease Year 38 May 1 2045 $10.00 Lease Year 89 May 1 209B $10.00 Lease Year 39 May 1 2046 $10.00 Lease Year 90 may 1 2097 $10.00 Lease Year 40 May 1 2047 $10.00 Lease Year 91 May 1 2098 $10.00 Lease Year 41 May 1 2048 $10.00 ar Lease Ye92 May i 2099 510.00 Lease Year 42 May 1 2049 $10.00 Lease Year 93 May 12100 $10.00 Lease Year 43 May 1 2050 $10.D0 Page 53 of 57 Lease Year 44 May 12051 $10.00 Lease Year 94 May 1 2101 $10.00 Lease Year 45 May 12052 $10.00 Lease Year 95 May 12102 $10.00 Lease Year 46 May 1 2053 $10.00 Lease Year 96 May 1 2103 $10.00 Lease Year 47 May 1 2054 $10.00 Lease Year 97 May 12104 $10.00 Lease Year 48 May 12055 $10.00 Lease Year 98 May 1 2105 $10.00 Lease Year 49 May 1 2056 $10.00 Lease Year 99 May 1, 2106 $10.00 Lease Year 50 May 1 2057 $10.00 Page 54 of 57 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 and future similarly situated persons and Monroe County's benefits. • That the Affordable Housing Unit that I am purchasing is subject to a 99-year ground lease by and between Monroe County, a political subdivision of the State of Florida, and (hereinafter "Lease") and therefore I will be subleasing a parcel of land. • That my legal counsel, , has explained to me the terms and conditions of the Lease, including without limitation the meaning of the term "Affordable Restrictions", and other legal documents that are part of this transaction. If I have not had legal counsel, I state here that I have had an opportunity to have obtain such counsel, understand its importance, and have knowingly proceeded to closing without it. • 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. Page 55 of 57 e devised and occupied by • I understand that in the event that I die, my home may be the requirements for my wife, my children or any other heirs so long as they re 9 affordable housing as set forth in the Lease. • That I have reviewed the terms of the Lease and transaction affordable housing and ofmat I consider said terms fair and necessary to pre sery special benefit to me. ith any broker other than • I hereby warrant that I have not deal n connection with the consummation of the purchase of the Affordable Housing Unit. Occupant Signature Occupant Signature Page 56 of 57 EXHIBIT F Modified or Additional Conditions This modification or Section 12.02 Initial Sale/Lease of Unit Ily Developer/Initial Lessee additional condition fADDM- ONAL PROVISIONI. Initial Lessee acknowledges that there shall be shall: 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 X NOT APPLY marketing efforts and Lessor shall have ninety (go) days from the date of Lessor's receipt of the notice to enter into a reservation agreement with Initial APPLY Lessee for the purchase/lease of all or a portion of theAffordable 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 this Lease. to individuals otherwise qualified to own/rent theAffordable 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. This modification or Section 20.26 "Related A¢reements"• Failure of Consideration or Material additional condition Failure in Performance Prior to Project Completion. Where prior to completion shall: of the Project through certification for occupancy of all required units, Initial Lessee, or any Lessee or any other persons taking or holding any interest in the Demised Premises under this Lease, or any persons receiving consideration X NOT APPLY given to Initial Lessee pursuant to any other Related Agreement (including but not limited to cases where such consideration includes transfer of building or APPLY development rights or the like from the Demised Premises or recognition of such — — rights for use elsewhere by any person), receives the substantial benefit of such person's bargain or such a transferred development right, while Lessor is at any to this Lease. time denied the full benefit of any then due material consideration intended to be provided to Lessor by Initial Lessee under this Lease, or under any Related Agreement, or while Lessor fails to obtain substantial performance of any material obligations thereunder, Lessor shall have the right to seek damages and any appropriate equitable relief from any persons or entities (including third parties, to whom the recording of this Lease is intended to serve as constructive notice) to which benefits have flowed or otherwise inured Page 57 of 57 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 9/15/10 Division: Growth Management Bulk Item: Yes X No _ Department: Planning Staff Contact Person/Phone #: Christine Hurley AGENDA ITEM WORDING: Approval of amendment to the professional services contract with Keith and Schnars, P.A., amending Master Schedule Attachment `B" that specifies the work program timeline and deliverable schedule. ITEM BACKGROUND: See below. PREVIOUS RELEVANT BOCC ACTION: At the BOCC Meeting on December 16, 2009, the Board granted approval and authorized execution of a Professional Services Agreement with Keith and Schnars, PA to update the Monroe County Year 2010 Technical Document, Evaluation and Appraisal Report (EAR), Comprehensive Plan Amendments, and Land Development Code for a planning period of 2010-2030 in the total amount of $1,031,985.00. CONTRACT/AGREEMENT CHANGES: The work program and deliverable schedule has been modified by Keith and Schnars to accommodate the need to have the Florida Department of Community Affairs affirm the methodology to be used to develop Monroe County's projected population. This will serve as the basis for determining the facilities and services required to accommodate the anticipated population for the planning period. The amendment to Attachment B of the contract reflects the modified work program and deliverable schedule. No changes in services and fees are associated with this contract amendment. The Evaluation and Appraisal Report (EAR) is due to the Florida Department of Community Affairs (DCA) on August 1, 2011. The County is allowed to request a six month extension. Staff anticipates that such an extension will be requested to allow for the completion of the updated Technical Document prior to the transmittal of the EAR to DCA. If approved, the amended due date of the EAR would be February 1, 2012. STAFF RECOMMENDATION: Approval TOTAL COST: INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: REVENUE PRODUCING: Yes APPROVED BY: County Atty DOCUMENTATION: Included DISPOSITION: SOURCE OF FUNDS: No AMOUNT PER MONTH Year OMB/Purchasing Risk Management Not Required AGENDA ITEM # Revised 7109 MEMORANDUM MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES We strive to be caring, professional, and fair To: Board of County Commissioners From: Townsley Schwab, Planning Director Through: Christine Hurley, Growth Management Director Date: August 31, 2010 RE: Request for amendment to the contract between Keith and Schnars and Monroe County — EAR Staff is requesting an amendment to the contract between Keith and Schnars and Monroe County. This amendment is necessitated by the need to have reviewed existing data and analysis prior to transmittal of the Monroe County recommended Major Issues to be considered in the Evaluation and Assessment Report (EAR). The original contract was drafted to require certain deliverables by the consultant prior to receipt of data and therefore, did not offer the opportunity to review important data and trends, prior to development of the EAR Major Issues. Based on this amendment to the contract, Monroe County should be able to meet the statutory deadlines to maintain good standing relative to the Comprehensive Plan and EAR. The following table demonstrates the statutory deadlines and the deadlines with permissible extensions that may be requested by the local government. Monroe County may need to request extensions within the permissible deadlines permitted. Deadline with Task Deadline extension EAR 8/1/11 2/1/12 EAR related PROPOSED comprehensive plan 8/1/12 2/1/13 amendments transmitted to DCA 12 months after deadline (18 MONTHS WITH EXTENSION) EAR related comprehensive plan amendments 2/1/13 8/1/13 adopted 18 months after deadline (24 MONTHS WITH EXTENSION) Date you cannot amend comprehensive plan after, if 2/1/13 N/A you do not make the amendment deadline Date you cannot amend comprehensive plan after, if n/a 8/1/13 you do not make the amendment deadline as extended by 6 months P. 1 of 2 (a). No local government may amend its comprehensive plan after the date established by the state land planning agency for adoption of its evaluation and appraisal report unless it has submitted its report or addendum to the state land planning agency as prescribed by s. 163.3191, except for plan amendments described in paragraph (1)(b) or paragraph (1)(h). (b). A local government may amend its comprehensive plan after it has submitted its adopted evaluation and appraisal report and for a period of 1 year after the initial determination of sufficiency regardless of whether the report has been determined to be insufficient. (c). A local government may not amend its comprehensive plan, except for plan amendments described in paragraph (1)(b), if the 1-year period after the initial sufficiency determination of the report has expired and the report has not been determined to be sufficient. (d). When the state land planning agency has determined that the report has sufficiently addressed all pertinent provisions of s. 163.3191, the local government may amend its comprehensive plan without the limitations imposed by paragraph (a) or paragraph (c). P. 2 of 2 FIRST AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES for KEITH AND SCHNARS, P.A. This First Amendment (Amendment) is made and entered into this _ day of , 2010 to the Agreement dated December 16, 2009 (Agreement) between Keith and Schnars, P.A. (Firm), 6500 North Andrews Avenue, Ft. Lauderdale, FL 33309-2132 and Monroe County, a political subdivision of the State of Florida (County), Marathon Government Center, 2798 Overseas Highway, Marathon, Florida 33050. WITNESSETH: WHEREAS, County and Firm agree to continue the services as described in the Agreement dated the 16t' day of December, 2009; and WHEREAS, the work program and deliverable schedule has been modified by Keith and Schnars to accommodate the need to have the Florida Department of Community Affairs affirm the methodology to be used to develop Monroe County's projected population; and WHEREAS, the amendment to Attachment `B" of the contract reflects the modified work program and deliverable schedule; and WHEREAS, No changes in services and fees are associated with this contract amendment; NOW, THEREFORE, the parties agree as follows: 1. Monroe County Master Schedule — Attachment `B" shall be amended as attached. 2. The remaining terms of the Agreement entered into on December 16, 2009, not inconsistent herewith, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this First Amendment. ATTEST BOARD OF COUNTY COMMISSIONERS DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA Deputy Clerk Mayor Sylvia J. Murphy Witness Witness Keith and Schnars, P.A. Michael L. Davis Title: Vice President Date: MONROE COUNTY CONTRACT FOR PROFESSIONAL SERVICES PROFESSIONAL SERVICES TO UPDATE THE MONROE COUNTY YEAR 2010 COMPREHENSIVE PLAN AND LAND DEVELOPMENT CODE A o THIS CONTRACT is made and entered into this /G day of Qe C . ,200 9 by MONROE COUNTY ("COUNTY"), a political subdivision of the State of Florida, whose address is the Marathon Government Center, 2798 Overseas Highway, Marathon, Florida, 33050, and Keith and Schnars, P.A. ("CONSULTANT"), whose address is 6500 North Andrews Avenue, Ft. Lauderdale, FL 33309-2132. Section 1. SCOPE OF SERVICES The CONSULTANT shall do, perform and carry out in a professional and proper manner services and deliverables as described in Exhibit A, Scope of Services which is attached hereto and made a part of this contract. In Phase I, CONSULTANT shall produce a Technical Document which shall be the basis for Phase II, the Evaluation and Appraisal Report (EAR) and Phase III, the Amendments to the Comprehensive Plan. The EAR shall comport with all statutory and rule requirements of the State of Florida to provide the status of the County's Comprehensive Plan and needed revisions. Such revisions and amendments shall be performed in Phase III. Phase III also includes production of final Comprehensive Plan for the planning period of 2010 — 2030. CONSULTANT shall propose and make the changes to the Monroe County Land Development Code as a result of the amendments to the Comprehensive Plan and other recommended reorganization and restructuring to eliminate inconsistencies during Phase IV. Representations made in the Response to the Request for proposals furnished by the CONSULTANT are incorporated herein as though fully set forth unless modified by Exhibit A or approved by the County. Section 2. COUNTY'S RESPONSIBILITIES 2.1 Provide all best available data and base maps as to the COUNTY'S requirements for Work Assignments. Designate in writing a person with authority to act on the COUNTY'S behalf on all matters concerning the Work Assignment. 2.2 Furnish to the CONSULTANT all existing plans, studies, reports, and other available data pertinent to the work, and obtain or provide additional reports and data as required by the CONSULTANT. The CONSULTANT shall be entitled to use and rely upon such information and services provided by the COUNTY or others in performing the CONSULTANT'S services. 2.3 Perform such other functions as are indicated in Exhibit A. 2.4 Provide a schedule that is mutually agreeable to the COUNTY and CONSULTANT. Section 3. TIME OF COMPLETION The services to be rendered by the CONSULTANT for each Phase shall be commenced upon written notice from the COUNTY and the work shall be completed in accordance with the schedule mutually agreed to by the COUNTY and CONSULTANT, attached to this contract as Exhibit B, unless it shall be modified in a signed document, by the mutual consent of the COUNTY and CONSULTANT. Subsequent services shall be performed in accordance with schedules of performance which shall be mutually agreed to by COUNTY and CONSULTANT. Section 4. COMPENSATION 4.1 Compensation shall be as follows: Phase 1 $ 332,840.00 Phase II $ 229,990.00 Phase III $ 204,830.00 Phase IV $ 264,325.00 Total $ 1,031,985.00 The lump sum fees are broken down into Phases, Tasks and Subtasks as noted in Exhibit A. The fees include CONSULTANT expenses, reimbursables, and deliverables. 4.2 Payment shall be made at completion of each subtask, except for: 1) subtasks for meetings and; 2) subtasks requiring greater than two (2) months per Exhibit B. For these exceptions, payment shall be based on the percentage of completion of the subtask up to 90% of the subtask fee, with documentation submitted to project manager to verify percentage completion. The remaining 10% of the subtask fee shall be made upon completion of the subtask. 4.3 Because the work must be completed according to the Schedule shown on Exhibit B compensation shall be only for the amount of work completed, regardless of the cause of any delay. 2 Section 5. PAYMENT TO CONSULTANT 5.1 Payment will be made according to the Local Government Prompt Payment Act. Any request for payment must be in a form satisfactory to the County Clerk (Clerk). The request must describe in detail the services performed and the payment amount requested. The CONSULTANT must submit to the Project Manager, who will review the request. The Project Manager shall note his/her approval on the request and forward it to the Clerk for payment. If request for payment is not approved, the Project Manager must inform the CONSULTANT in writing that must include an explanation of the deficiency that caused the disapproval of the request. 5.2 CONSULTANT shall submit invoices with progress report of activities on a monthly or otherwise regular basis, in accordance with the compensation terms specified in Section 4.1, until the work under this agreement is completed. These reports shall include the percentage complete for each "meeting" subtask being invoiced. 5.3 Subject to the provisions in 4.2, the COUNTY shall make payments to the CONSULTANT based on completion of each subtask in Exhibit A. 5.4 Continuation of this contract is contingent upon annual appropriation by Monroe County. Section 6. CONTRACT TERMINATION and RENEGOTIATION The COUNTY may terminate this contract with thirty days notice to CONSULTANT, and will compensate the CONSULTANT for work done to the date of notice. Either party may terminate this Contract because of the failure of the other party to perform its obligations under the Contract. If the COUNTY terminates this Contract because of the CONSULTANT's failure to perform, then the COUNTY must pay the CONSULTANT the amount due for all work satisfactorily completed as determined by the COUNTY up to the date of the CONSULTANT's failure to perform but minus any damages the COUNTY suffered as a result of the CONSULTANT's failure to perform. The damage amount must be reduced by the amount saved by the COUNTY as a result of the Contract termination. If the amount owed the CONSULTANT by the COUNTY is not enough to compensate the COUNTY, then the CONSULTANT is liable for any additional amount necessary to adequately compensate the COUNTY up to the amount of the Contract price. In the event the scope of work for Phase IV is determined to be significantly less by the COUNTY, than what is listed in Exhibit A, the parties may re -negotiate the contract scope and payment to reflect the change. 3 Section 7. AUTHORIZATION OF WORK ASSIGNMENTS 7.1 All work assignments beyond or in addition to Exhibit A shall be authorized in a signed document (Work Order) or e-mail in accordance with the COUNTY's policy prior to any work being conducted by the CONSULTANT. Exhibit A contains optional services with listed prices which must be authorized in writing by the Project Manager. The Project Manager may authorize such extra services if determined necessary by the Division Director. 7.2 Additional authorizations may contain additional instructions or provisions specific to the authorized work for the purpose of clarifying certain aspects of this Agreement pertinent to the work to be undertaken. Such supplemental instruction or provisions shall not be construed as a modification of this Agreement. Authorizations shall be dated and serially numbered. 7.3 The CONSULTANT shall not assign, sublet or transfer any rights under or interest in (including, but not without limitations, moneys that may become due or moneys that are due) this agreement or subsequent Work Assignment without the written consent of the COUNTY, except to the extent that any assignment, subletting, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this agreement. 7.4 The CONSULTANT agrees that no charges or claims for damages shall be made by it for any delays or hindrances attributable to the COUNTY during the progress of any portion of the services specified in this contract. Such delays or hindrances, if any, shall be compensated for by the COUNTY by an extension of time for a reasonable period for the CONSULTANT to complete the work schedule. Section 8. NOTICES All notices, requests and authorizations provided for herein shall be in a signed document and shall be delivered or mailed to the addresses as follows: H To the COUNTY: Director, Growth Management Division c/o Monroe County Growth Management Division 2798 Overseas Highway, Suite 410 Marathon, Florida 33050 And to: County Administrator Monroe County Gato Building 1100 Simonton Street Key West, FL 33040 To the CONSULTANT: Michael L. Davis, Vice President Keith and Schnars, P.A. 6500 North Andrews Avenue Fort Lauderdale, FL 33309-2132 or addressed to either party at such other addresses as such party shall hereinafter furnish to the other party in writing. Each such notice, request, or authorization shall be deemed to have been duly given when so delivered by hand, or, if mailed, when deposited in the mails, certified mail, return receipt requested, or by courier with proof of delivery. Section 9. RECORDS CONSULTANT shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of the other party to this Agreement for public records purposes during the term of the agreement and for four years following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that moneys paid to CONSULTANT pursuant to this Agreement were spent for purposes not authorized by this Agreement, the CONSULTANT shall repay the moneys together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to CONSULTANT. Section 10. OWNERSHIP OF DOCUMENTS AND INFORMATION COUNTY shall own all deliverables, and shall have sole rights to reproduce and sell any data or derivative information, and CONSULTANT shall have no copy right or right to sell the deliverables resulting from this RFP. COUNTY shall have the right to examine and use the work product of 5 CONSULTANT to verify calculations and authenticity of the information used to produce the final documents produced by CONSULTANT. Section 11. EMPLOYEES SUBJECT TO COUNTY ORDINANCE NOS. 010 AND 020-1990 The CONSULTANT warrants that it has not employed, retained or otherwise had act on its behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 020-1990. For breach or violation of this provision the COUNTY may, in its discretion, terminate this agreement without liability and may also, In its discretion, deduct from the agreement or purchase price, or otherwise recover the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee. Section 12. CONVICTED VENDOR A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not perform work as a CONSULTANT, supplier, subCONSULTANT, or CONSULTANT under contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 of the Florida Statutes, for the Category two for a period of 36 months from the date of being placed on the convicted vendor list. Section 13. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the COUNTY and CONSULTANT agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. This agreement is not subject to arbitration. Section 14. SEVERABILITY If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and M provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and CONSULTANT agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. Section 15. ATTORNEY'S FEES AND COSTS The COUNTY and CONSULTANT agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket \expenses, as an award against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. Section 16. BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the COUNTY and CONSULTANT and their respective legal representatives, successors, and assigns. Section 17. AUTHORITY Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary COUNTY and corporate action, as required by law. Section 18. ADJUDICATION OF DISPUTES OR DISAGREEMENTS COUNTY and CONSULTANT agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. Section 19. COOPERATION In the event any administrative or legal proceeding is instituted against either parry relating to the formation, execution, performance, or breach of this Agreement, COUNTY and CONSULTANT agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. COUNTY and CONSULTANT specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. Section 20. NONDISCRIMINATION COUNTY and CONSULTANT agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. COUNTY or CONSULTANT agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: Title VII of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of age; The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. rd Section 21. COVENANT OF NO INTEREST COUNTY and CONSULTANT covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. Section 22. CODE OF ETHICS COUNTY agrees that officers and employees of the COUNTY recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. Section 23. NO SOLICITATION/PAYMENT The COUNTY and CONSULTANT warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bonafide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the CONSULTANT agrees that the COUNTY shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. Section 24. PUBLIC ACCESS The COUNTY and CONSULTANT shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY and CONSULTANT in conjunction with this Agreement; and the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONSULTANT. Section 25. NON -WAIVER OF IMMUNITY Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the COUNTY and the CONSULTANT in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the COUNTY be required to contain any provision for waiver. Section 26. PRIVILEGES AND IMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the COUNTY, when performing their respective functions under this Agreement within the territorial limits of the COUNTY shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the COUNTY. Section 27. LEGAL OBLIGATIONS AND RESPONSIBILITIES Non -Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida constitution, state statute, and case law. Section 28. NON -RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and the CONSULTANT agree that neither the COUNTY nor the CONSULTANT 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 Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 10 Section 29. ATTESTATIONS CONSULTANT agrees to execute such documents as the COUNTY may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. Section 30. NO PERSONAL LIABILITY 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 Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. Section 31. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Section 32. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. Section 33. INSURANCE POLICIES Prior to execution of this agreement, the CONSULTANT shall furnish the COUNTY Certificates of Insurance indicating the following coverages or in excess thereof: • Workers Compensation in the amount of statutory limits as specified in Florida Statutes 440. • Employers Liability with: $500,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; and $500,000 Bodily Injury by Disease, each employee. • General Liability (Premises operations, blanket contractual, expanded definition of property damage, products & completed operations, personal injury) with: $500,000 Combined Single Limit. • Vehicle Liability with: 11 $500,000 combined single limit per Occurrences/$500,000 Aggregate • Professional Liability with: $500,000 per Occurrence; and $1,000,000 Aggregate. Section 34. INDEPENDENT CONTRACTOR At all times and for all purposes hereunder, the CONSULTANT is an independent CONSULTANT and not an employee of the Board of County Commissioners. No statement contained in this agreement shall be construed so as to find the CONSULTANT or any of his/her employees, CONSULTANTs, servants or agents to be employees of the Board of County Commissioners for Monroe County. As an independent CONSULTANT the CONSULTANT shall provide independent, professional judgment and comply with all federal, state, and local statutes, ordinances, rules and regulations applicable to the services to be provided. The CONSULTANT shall be responsible for the completeness and accuracy of its work, plan, supporting data, and other documents prepared or compiled under its obligation for this project, and shall correct at its expense all significant errors or omissions therein which may be disclosed. The cost of the work necessary to correct those errors attributable to the CONSULTANT and any damage incurred by the COUNTY as a result of additional costs caused by such errors shall be chargeable to the CONSULTANT. This provision shall not apply to any maps, official records, contracts, or other data that may be provided by the COUNTY or other public or semi-public agencies. Section 35. INDEMNIFICATION The CONSULTANT does hereby consent and agree to indemnify and hold harmless the COUNTY, its Mayor, the Board of County Commissioners, appointed Boards and Commissions, Officers, and the Employees, and any other agents, individually and collectively, from all fines, suits, claims, demands, actions, costs, obligations, attorneys fees, or liability of any kind arising out of the sole negligent actions of the CONSULTANT or substantial and unnecessary delay caused by the willful nonperformance of the CONSULTANT and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of its performance of this contract. The amount and type of insurance coverage requirements set forth hereunder shall in no way be construed as limiting the scope of indemnity set forth in this 12 paragraph. Further the CONSULTANT agrees to defend and pay all legal costs attendant to acts attributable to thEF egligent act of the CONSULTANT. (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: DANNY L. KOLHAGE, CLERK ;11�� OF MOONROE COUNTY, FLORIDA 4441C-- By c'JGi� By Deputy Clerk Mayor Sylvia Murphy (CORPORATE SEAL) ATTEST: By Secretary/Treasurer Witness. affiW� 06�(P7 Print Name: il� �64 Witness: ,t Print Name: vim____ MONROE MINTY ATTORNEY OVE ASRO FORM Date: KEITH AND SCHNARS 'r /J By. 4A L nnMichael L. Davis, Vice President Date: A-0c. !K 1 d d 7 _i v r— �A :'i rj 1J i „7C O Z% rn � v 13 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 PHASE I —TECHNICAL DOCUMENT TASK 1-PROJECT INITIATION 1.1 K&S Team will meet with the project managers from the County to review work tasks and the project schedule, establish reporting relationships and review expectations of the project. The development of the Public Involvement Plan (PIP) will also be discussed at this meeting, including: key issues, audiences, communication materials, communication venues, and the County/K&S roles, including how comments will be managed; and the key messages that need to be communicated in all communication materials. 1.2 K&S will initiate data collection, including a data gap analysis. County staff will work with K&S to identify and gather the necessary data. 1.3 K&S will develop a database of information or resources, including source and status. 1.4 K&S will, in coordination with the County, identify stakeholders and potential candidates for interviews; develop an Intergovernmental Coordination Plan (ICP) and Public Involvement Plan (PIP); and, establish the project website. The PIP will address public participation/input and include a media outreach plan relating to the Comprehensive Plan Update, the Evaluation and Appraisal Report, the Comprehensive Plan Amendments; and the development of the revised Land Development Code. Based on the meeting in Task 1.1 above, K&S will prepare strategies for identified audiences and phases. A draft public participation plan will be prepared for County review. K&S will support the County staff to present the public participation plan at the Planning Commission and the BOCC briefings, noted in Tasks 2.2 and 2.3. Following County review, and teleconference coordination as needed, a final public involvement plan will be prepared. The ICP will identify the applicable agencies and other jurisdictional bodies as stakeholders and establish the primary contact and/or board members. It will also identify the appropriate stages of the process in which they will be engaged and how they will be notified. Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 Task 1 Deliverables: • Meeting agenda; • Kickoff meeting between County and K&S; • Detailed Project Schedule; • Information data base, updated throughout Phase 1; • ICP; • PIP; • Written meeting summary; and • Establish project website. Consultants Lump Sum Fee for Phase I Task 1....................................... $ 52, 090.00 TASK 2 —MEETINGS AND PUBLIC INVOLVEMENT 2.1 For the duration of Phase I, K&S will participate in up to two (2) meetings per month, either in person or via telephone, with County staff to discuss the status of the project and to solicit comments and feedback. 2.2 K&S will provide one briefing of the BOCC during Phase 1. 2.3 K&S will provide one briefing of the Planning Commission during Phase 1. 2.4 K&S will maintain and update the project website monthly, at a minimum. 2.5 K&S will conduct one (1) general public/stakeholder outreach event/program during Phase I. This outreach event shall include a presentation at three locations, to be determined at a later date with County input. As part of Task 1.4, K&S will establish a specific event strategy that will include a Commissioner greeting and comments at each location; County and K&S staff will be available to discuss the upcoming activities, take feedback and answer questions. N Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 2.6 K&S will prepare monthly project progress reports. Task 2 Deliverables: • Meeting participation; • Meeting agendas; • Written meeting summaries; • Update project website; • General public/stakeholder outreach event; and • Monthly progress reports. Consultants Lump Sum Fee for Phase 1 Task 2....................................... $ 65, 560.00 TASK 3 — DRAFT UPDATED DOCUMENT 3.1 K&S will analyze existing conditions to update the Comprehensive Plan components listed below: • Population and Housing; • Community Facilities and Services, including the Public Education and the Public Health Systems; • The Capital Improvement Program; • Wastewater, Solid Waste, Stormwater and Potable and Reclaimed Water Services; • Transportation, including Ports and Aviation services; • Land Use; • Planning Areas and the Areas of County Critical Concern; • Coastal Management and Natural Resources; • Economics and Employment; and • Historic Structures and Sites. The analysis will determine trends that are emerging; the suitability of existing land use regulations, relevant growth management laws and rules, public/private facilities and services to meet the changing needs of the population; and, where public and/or private initiatives will be necessary to maintain and improve services and facilities. This task shall involve an examination of the intergovernmental organizations that the County participates in with regard to regional affairs. The analysis will also identify and evaluate the consistency among and between local plans, studies and ordinances, as identified in Task 1. L, Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 3.2 K&S will prepare a Draft Technical Document, updated to the 2010-2030 planning period, meeting the requirements of 9J-5 F.A.C., Chapter 163.3177.F.S and Chapter 380.F.S. for each element. The Technical Document will establish the appropriate level of standard for each service/infrastructure and; will identify the projected needs, based upon population projections and level of service standards, in five (5) year increments throughout the planning period. K&S will retain the same element headings and subheadings, as may be appropriate, within the existing Technical Document, and will include those that may be required by Statue or Rule in order to be current and consistent with new requirements. 3.3 K&S will conduct up to two (2) meetings with County staff to review the Draft Technical Document. These expanded meetings will be a part of the regular bimonthly meetings identified in Task 2.1. 3.4 K&S will organize and participate in one (1) County/DCA joint workshop to review the draft Technical Document noted in Task 3.2, above. 3.5 K&S will participate in one (1) public presentation with the Planning Commission (LPA) to review the Draft Technical Document. 3.6 K&S will participate in one (1) public presentation with the BOCC to review the Draft Technical Document. Task 3 Deliverables: • Draft Technical Document (20 copies with 1 electronic file); • Meeting agendas; • Meeting participation; • Written meeting summaries; • One full size (I I "x 17") and one reduced copy (8.5"x 11 ") of each map; and • All text, tables, charts, and maps provided in digital format. Mapping shall be prepared in a format compatible with the County's GIS. Consultants Lump Sum Fee for Task 3................................................ $ 174, 730.00 1i Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 4 — FINAL TECHNICAL DOCUMENT 4.1 Utilizing the results from Tasks above, K&S will prepare a Final "2010-2030 Technical Document". This document is the basis for the remaining phases of the Evaluation and Appraisal Report (EAR) and the future Comprehensive Plan update. 4.2 Prior to the presentation of the Final Technical Document to the BOCC in Task 4.3 below, K&S will submit the material to the DCA for a Courtesy Review. 4.3 K&S will participate in one (1) public presentation of the Final Technical Document before the BOCC. Task 4 Deliverables: • Meeting agendas; • Meeting participation; • Written documentation of Commission direction items; • DCA Courtesy Review; • Final Technical Document Update (20 copies with 1 electronic file); • One full size (I I "x 17") and one reduced copy (8.5"x 11 ") of each map; and • All text, tables, charts, and maps provided in digital format. Mapping shall be prepared in a format compatible with the County's GIS. Consultants Lump Sum Fee for Phase I Task 5....................................... $ 40, 460.00 Optional Services (not included in total) Additional Public Outreach Events: K&S staff will utilize the Mobile Information Station (MIS) for additional events, at locations as selected by the County, to obtain feedback, encourage public participation and answer stakeholder questions. Consultant's Lump Sum Fee for each event shall not exceed ........................... $9,960.00 Other Meetings/Hearings as Coordinated by the County: K&S staff (up to 2 persons) attendance at additional meetings/hearings before the Planning Commission (LPA) or BOCC for all tasks included in this Phase. Consultant's Lump Sum Fee each meeting/hearing shall not exceed............ $3, 760.00 TOTAL LUMP SUM FEE FOR PHASE I .................................... $ 332,840.00 61 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 21, 2009 PHASE II — EVALUATION AND APPRAISAL REPORT (EAR) TASK 1- ASSESSMENT OF MAJOR ISSUES AND PUBLIC INVOLVEMENT The purpose of the public information workshops will be to discuss and receive public input on the key local "major" planning issues that will be addressed in the EAR. 1.1. K&S will meet with key County staff and officials to gather input on major issues affecting the County. 1.2. K&S will coordinate and conduct three (3) public workshops, and prepare presentation and handout materials for the workshops, which may include comment sheets, descriptions of the EAR process, and mounted aerials. 1.3. For the duration of Phase 11, K&S will participate in up to two (2) meetings per month, either in person or via telephone, with County staff to discuss the status of the project and to solicit comments and feedback. 1.4. K&S shall conduct other coordination efforts to include meetings with elected officials, appointed officials, County staff, and other government agencies, including the DCA. 1.5. K&S will update the project website monthly, at a minimum. Tasks 1 Deliverables: • Meeting participation; • Meeting agendas; • Written meeting summaries; • Information data base, updated throughout Phase 2; • Updated project website; • Public involvement materials such as comment sheets and handouts outlining the EAR process; • Presentation materials for workshops (e.g. PowerPoint presentation, mounted aerials); • An issues matrix providing details on the identified major issues; and • Monthly progress reports. Consultants Lump Sum Fee for Phase II Task 1...... ... ... ... ... ...... ... ... ...... $ 126,510.00 on Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 2- INTERAGENCY SCOPING MEETING AND COMPILATION REPORT Interagency coordination is a critical component to the success of the EAR process. Agencies that are part of the coordination effort during this Task (and throughout the process) will include, but not be limited to: adjacent municipalities; FDOT, SFRPC, N.A.S. - Key West, SFWMD, Monroe County Public Schools, FKAA, National Park Service, the DCA, and other agencies identified by County staff. 2.1 K&S will coordinate and conduct an interagency scoping meeting with adjacent local jurisdictions and State, regional and county agencies to receive their input on the key issues that have been identified, and to identify additional issues that should be addressed. In addition, this meeting will serve as an opportunity to identify and collect the data that needs to be received from these agencies in order to conduct the EAR. 2.2 K&S will prepare a compilation report that summarizes all issues identified for further research and updating. This report will be submitted to the County for review and consideration. 2.3 After County approval, the compilation report will be provided to DCA in order to receive a Letter of Understanding. Any and/or all of the issues identified in this task will be addressed in the EAR document (see Task 5). Tasks 2 Deliverables: • Meeting participation; • Meeting agendas; • Written meeting summaries; • Presentation materials for workshops (e.g. PowerPoint presentation, mounted aerials); • An Issue Compilation Report, composed of: a Scope of Work that outlines the identified major issues, and the manner in which these issues and the other EAR statutory requirements, will be addressed; • An issues matrix providing further details on the identified major issues; • Monthly progress reports. Consultants Lump Sum Fee for Phase II Task 2.................................... $ 14, 260.00 7 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 3 - REVIEW AND EVALUATION OF THE COMPREHENSIVE PLAN 3.1 K&S shall perform a comprehensive review on an element -by -element basis of the Comprehensive Plan in order to identify successes or shortcomings in achieving the County's goals, objectives and policies and identify goals, objectives and policies with old dates or out dated tasks Task 3 Deliverable: • A report summarizing, in tables and text, progress in achieving the Comprehensive Plan's objectives since the date of the last EAR and goals, objectives and policies which include old dates or outdated tasks . This report is not intended to be a stand-alone document, but will be incorporated as a Chapter in the draft EAR (see Task 5 Deliverable). Consultants Lump Sum Fee for Phase H Task 3.................................... $ 17, 560. 00 TASK 4- PUBLIC MEETINGS 4.1 The K&S Team will conduct one (1) presentation to the Planning Commission to obtain feedback on the report generated during Task 3. 4.2 The K&S Team will conduct one (1) presentation to the BOCC. This presentation will provide the BOCC with a "report card" of the Comprehensive Plan. Task 4 Deliverable: • Meeting agendas, if necessary; • Meeting participation; and • Written documentation of Commission and BOCC direction. Consultants Lump Sum Fee for Phase II Task 4................................. $ 16,520.00 0 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 5 - DEVELOPMENT AND PREPARATION OF FIRST AND FINAL DRAFT EAR The purpose of this Task is to develop and prepare, in coordination with County staff, the first draft EAR in accordance with Chapter 163, F.S, and in a format prescribed by 9J-11 F.A.C. 5.1 The issues identified in Tasks 1 and 2 will be: described, analyzed, and, evaluated by K&S for potential social, economic, and environmental impacts. 5.2 Along with the statutory requirements, K&S shall prepare a series of Comprehensive Plan amendment recommendations to address these issues. 5.3 In addition, the draft EAR prepared by K&S shall include: • Description of the process used to ensure public participation; • Updated population estimates; • Changes in Land Area; 1. Vacant land for future development 2. Demands of growth on infrastructure 3. Location of development, including infill and redevelopment needs • Coastal High Hazard Area (CHHA)/Property Rights Assessment; • Coordination of any future school locations, and an evaluation of successes and shortcomings in coordinating residential development and public school capacity; • List of changes need in the comprehensive plan due to changes in State law, regional plans and/or administrative rules, including all new statutory or rule requirements such as those specified by HB 697, SB 360 and 9J-5; and • Other issues as may be required by County staff. 5.4 K&S will organize and attend one (1) briefing of the BOCC on the final draft EAR. 5.5 K&S will organize and attend one (1) hearing of the Planning Commission (LPA) on the final draft EAR for the purpose of obtaining approval to transmit the Final Draft to DCA for courtesy review.. 5.6 Submit Draft EAR to DCA for courtesy review ninety (90) days before the required adoption date per DCA Handbook. Tasks 1 through 5.3 will result in the development of the first draft of the EAR. This draft will be submitted electronically to the County for preliminary staff review. Any comments or suggestions received from the scoping meeting, the public meetings, the Planning Commission and BOCC briefings noted in Task 5.4 and 5.5, above, County Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 staff and the DCA Courtesy Review, noted in Task 5.6, will be addressed prior to proceeding to Task 6. Task S Deliverable: • Meeting agenda; • Presentation materials; • Meeting participation; • Written summary of BOCC direction; • 1 electronic copy of the first draft EAR for preliminary internal staff review; and • 1 electronic copy and 20 hard copies of the final draft EAR for the Planning Commission and BOCC briefing noted in Tasks 5.4 and 5.5, above; and the DRC meeting and the Planning Commission (LPA) hearing noted in Task 6, below. Consultants Lump Sum Fee for Phase II Task 5....................................... $ 49, 500.00 TASK 6- PUBLIC BEARINGS ON PROPOSED EAR 6.1 K&S will attend and coordinate one (1) hearing before the Planning Commission (LPA). 6.2 K&S will attend and coordinate one (1) adoption hearing before the BOCC. The purpose of the Planning Commission (LPA) and BOCC hearings is to receive staff and public comments and obtain authority for the transmittal of the Proposed EAR to DCA and the other reviewing agencies to obtain a Finding of Sufficiency. Any and/or all comments received from the hearings will be addressed prior to mailing (Task 7). Task 6 Deliverables: • Meeting and hearing participation; • and • Report on direction from the hearings before the Planning Commission (LPA) and the BOCC. Consultants Lump Sum Fee for Phase II Task 6... ... ...... ... ... ...... ...... ... ... $ 3,600.00 10 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 7- MAILING OF ADOPTED EAR TO DCA 7.1 K&S will assist the County with the submission of the Adopted EAR to DCA and other reviewing agencies. Task 7 Deliverable: • The original, twenty (20) copies and two electronic files (as revised to address the Planning Commission, public and DRC comments) of the Adopted EAR will be provided to the County for transmittal to DCA and review agencies, and internal distribution. Consultants Lump Sum Fee for Phase II Task 7... ... ... ... ... ... ... ... ... ...... ... $ 2,040.00 NOTE: Phase II Tasks 8, 9 10 and 11 will only be required if the Adopted EAR receives comments or recommendations for changes from the DCA. TASK 8- RESPONSE TO DCA RECOMMENDATION & COMMENTS 8.1 K&S will review all recommendations and comments and prepare a written response to each item, if necessary. Tasks 8 Deliverable: • Written Response to DCA Recommendations and Comments. Consultants Lump Sum Fee for Phase II Task 8...... ...... ...... ... ... ... ........... $ 3,170.00* TASK 9- REVISE PROPOSED EAR 9.1 Based upon the comments received from DCA, K&S shall prepare revisions to the EAR, if necessary. 9.2 K&S shall submit the revised EAR to the County for review and approval. Tasks 9 Deliverable: • Revised EAR (1 electronic and/or three hard copies) for staff review. Consultants Lump Sum Fee for Phase II Task 9... ... ...... ... ...... ... ... ... ... ... $ 5,320.00* Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 TASK 10- PUBLIC HEARING TO ADOPT PROPOSED EAR 10.1 K&S will participate in one (1) Development Review Committee (DRC) meeting to review the proposed EAR. 10.2 K&S shall attend and coordinate the BOCC public hearing required by Florida Statutes for adoption of the revised Evaluation and Appraisal Report. Task 10 Deliverables: • Report on direction from the hearing. • One electronic and 10 hard copies of the draft EAR (as revised to address staff comments) for the DRC review and Board of County Commissioners adoption. Consultants Lump Sum Fee for Phase II Task 10 .............................. $ 1, 780.00* TASK 11 - MAILING OF ADOPTED PROPOSED EAR TO DCA 11.1 The revised adopted EAR will be submitted to the County for transmittal to DCA. Task 11 Deliverable: • 20 bound copies and 2 electronic files of the adopted EAR for transmittal and internal distribution. Consultants Lump Sum Fee for Phase H Task 11....................................... $1,600.00* Note: If further proceedings are necessary (e.g., mediation, ligation), it is anticipated that K&S will be available, pursuant to an amendment to this contract, to provide additional services. Optional Services (not included in total) Additional Public Outreach Events: K&S staff will utilize the Mobile Information Station (MIS) for additional events, at locations as selected by the County, to obtain feedback, encourage public participation and answer stakeholder questions. Consultant's Lump Sum Fee each event shall not exceed ... ... ...... ...... ... ... ... ... $9,960.00 Other Meetings/Hearings as Coordinated by the Countv: K&S staff (up to 2 persons maximum) attendance at additional meetings/hearings before the Planning Commission (LPA) or BOCC for all tasks included in this Phase. 12 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 Consultant's Lump Sum Fee each meeting/hearing shall not exceed............ $3, 760.00 TOTAL FEE for Phase II ......................................................... $ 229,990.00 * Tasks 8-11 fees ($11,870) not included in Phase II Total — but may be necessary if objections, comments, and recommendations report is received from Department of Community Affairs (DCA) PHASE III —COMPREHENSIVE PLAN AMENDMENTS/COMPREHENSIVE PLAN 2010-2030 TASK 1— PHASE III KICKOFF 1.1 K&S will meet with the project managers from the County to review work tasks and project schedule, and establish expectations of Phase III. 1.2 K&S will update the PIP as necessary. Task 1 Deliverables: • Meeting agenda; • Meeting participation; • Written meeting summary; and • Updated PIP. Consultants Lump Sum Fee for Phase III Task 1... ... ... ............ ... ... ... ... ... $ 5,580.00 TASK 2 — MEETINGS AND PUBLIC INVOLVEMENT 2.1 K&S will participate and coordinate meetings (in person and telephonically) with County staff two times per month for the duration of Phase III. 2.2 K&S will participate and coordinate (up to 4 two-hour) meetings with the Department of Community Affairs (DCA) during its informal and formal review process (telephonic). 2.3 K&S will update the project website monthly, at a minimum. Tasks 2 Deliverables: • Meeting agendas; • Meeting and public event participation; 13 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 • Written meeting and public event summaries, including DCA recommendations and comments; • Information data base, updated throughout Phase 3; • General public/stakeholder outreach events; and • Updated project website. Consultants Lump Sum Fee for Phase Ill Task 2... ... ... ... ... ... ... ... ... ... ...... $ 67,430.00 TASK 3 - PREPARATION OF DRAFT COMPREHENSIVE PLAN AMENDMENTS 3.1 Utilizing the recommendations contained within the EAR; and input gathered through the public involvement process and preliminary meetings with the DCA, K&S will draft amendments to the Plan to implement the goals of the County, that meets the requirements of Chapter 380 and Chapter 163, Part II, F.S., Chapter 9J-5, and Rule 28-20 F.A.C., and all other applicable studies or plans. During the drafting process, K&S will work closely with County staff, the Planning Commission, the Board of County Commissioners, the DCA, and other agencies as necessary, to assure that the amendments are acceptable and to work through issues prior to submission of the final amendments. 3.2 K&S will provide additional amendments to the Comprehensive Plan Policy Document based upon the updated Technical Document and any impending statutory requirements; and shall delete any goals, objectives and policies which are out-of-date or no longer applicable. 3.3 K&S will participate and coordinate six (6) meetings with the DRC to review the draft amendments. These expanded meetings will be a part of the regular bimonthly meetings identified in Task 2.1. 3.4 K&S will coordinate and participate in five (5) meetings before the Planning Commission to review the draft amendments. Task 3 Deliverable: • Meeting agendas, as necessary; • Meeting participation; • Meeting summaries, including directional items from the Planning Commission; and • 20 copies and 1 digital file, in final ordinance and strikethrough and underlined format, of the proposed Comprehensive Plan Amendments. Such amendments shall include those based upon the results of the Evaluation and Appraisal report; the updated Technical Document; impending statutory requirements; 14 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 and, the deletion of, or revision to, any goals, objectives and policies which are out-of-date or no longer applicable; Consultants Lump Sum Fee for Phase 111 Task 3... ... ...... ... ... ... ... ... ...... ... $ 63,870.00 TASK 4 - PREPARATION OF FINAL COMPREHENSIVE PLAN AMENDMENTS 4.1 Incorporating the comments and feedback received on the draft amendments during Tasks 2 and 3, K&S will develop a final set of amendments in underline- strikethrough to be reviewed during the public hearing process by the Planning Commission (LPA) and the BOCC during both the transmittal and adoption hearing process. 4.2 K&S will participate and coordinate two (2) public hearings before the Planning Commission (LPA). 4.3 K&S will participate and coordinate two (2) public hearings before the Board of County Commissioners for the review, adoption and transmittal of the amendments to the DCA. Task 4 Deliverable: • Hearings participation; • Report on direction from the hearings before the LPA and the BOCC; • 20 copies and 1 digital file of the proposed Comprehensive Plan Amendments in Final Ordinance and strikethrough and underlined format. Consultants Lump Sum Fee for Phase III Task 4.................................... $ 29,820.00 TASK 5 - FOLLOW-UP AND MODIFICATION 5.1 K&S will analyze the DCA response in its Objections, Recommendations and Comments (ORC) Report to the transmittal of the Plan amendments and, shall prepare a written response to each item. 5.2 If necessary, K&S shall make the necessary adjustments or modifications at the direction of the County and will be provided in underline-strikethrough format. Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 Task S Deliverables: • Written response to the ORC addressing each item; and • 20 copies and 1 digital file of the final Comprehensive Plan Amendments, in strikethrough and underline format, for adoption and enactment. • 1 digital file and 20 tabbed copies, without strikethrough and underline, of all of the goals, objectives and policies of the complete "2010-2030 Comprehensive Plan". Consultants Lump Sum Fee for Phase III Task 5................................. $ 38,130.00 Note: If further proceedings are necessary (e.g., mediation, ligation), it is anticipated that K&S will be available, pursuant to an amendment to this contract, to provide additional services. Optional Services (not included in total) Additional Public Outreach Events: K&S staff will utilize the Mobile Information Station (MIS) for additional events, at locations as selected by the County, to obtain feedback, encourage public participation and answer stakeholder questions. Consultant's Lump Sum Fee each event shall not exceed ... ......... ......... ... ...... $9,960.00 Other Meetings/Hearings as Coordinated by the County: K&S staff (up to 2 persons maximum) attendance at additional meetings/hearings before the Planning Commission (LPA) or BOCC for all tasks included in this Phase. Consultant's Lump Sum Fee each meeting/hearing shall not exceed............ $3, 760.00 TOTAL FEE FOR PHASE III ................................................. $ 204,830.00 16 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 PHASE IV — REVISED LAND DEVELOPMENT CODE, INCLUDING AMENDMENTS REQUIRED FOR CONSISTENCY WITH THE COMPREHENSIVE PLAN TASK 1— PHASE IV KICKOFF 1.1 K&S will meet with the project managers from the County to review work tasks and project schedule, and establish expectations of Phase IV. 1.2 K&S will update the PIP as necessary. Task 1 Deliverables: • Meeting agenda; • Written meeting summary; and • Updated PIP Consultants Lump Sum Fee for Phase IV Task 1.................................... $ 14, 535.00 TASK 2 — AMENDMENT RECOMMENDATIONS 2.1 K&S shall prepare a report that will include recommended revisions and amendments to create LDRs based on existing code, Comprehensive Plan and Florida law. The results of this analysis will establish the focus for drafting the new land development code. 2.2 K&S will conduct up to two (2) meetings with County staff to review and provide input on the Recommendations and Revisions Report generated in Task 2.1, above. These expanded meetings will be a part of the regular bimonthly meetings identified in Task 3.1 below. 2.3 K&S will coordinate up to five (5) presentations before the Planning Commission to obtain input on the issues and recommendations identified in Task 2.1. Task 2 Deliverable: • Meetings agendas, as necessary; • Meetings participation; • Presentation materials; • Written meeting summaries; and • Recommendations and Revisions Analysis Report (20 copies and 1 electronic file). 17 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 Consultants Lump Sum Fee for Phase IV Task 2................................... $ SS, 680.00 TASK 3 — MEETINGS AND PUBLIC INVOLVEMENT 3.1 For the duration of Phase IV, K&S will participate in up to two (2) meetings per month (for a total of 16 meetings), either in person or via telephone, with County staff to discuss the status of the project and to solicit comments and feedback. 3.2 K&S will participate in one (1) general public outreach event/program during Phase IV. 3.3 K&S will update the project website monthly, at a minimum. Task 3 Deliverables: • Meeting agendas, as necessary; • Written meeting summaries; • Monthly progress reports; • General public outreach event; and • Project website update. Consultants Lump Sum Fee for Phase IV Task 3.................................... $ 76,100.00 TASK 4 - PREPARATION OF DRAFT LAND DEVELOPMENT REGULATIONS 4.1 Utilizing the results of the Tasks 2 and input gathered through the community involvement process and scoping and review meetings with County staff, K&S will prepare amendments to the County's LDRs. The regulations shall be reorganized to unify the various requirements and consolidate subject matter into a user-friendly, simple to administer and enforce, land development code that will implement the adopted Comprehensive Plan; the EAR.; the Strategic Regional Policy Plan; Chapter 380 and Chapter 163, Part II, F.S.; Chapter 9J-5 F.A.C. and Rule 28-20 F.A.C; and conform with other applicable studies and plans. 4.2 During the drafting process, K&S will work closely with County Staff, the Planning Commission, the Development Review Committee (DRC), the BOCC, the DCA and other agencies as necessary, to assure that the amendments are acceptable and to work through issues prior to submission to the County of the final amendments. Task 4 Deliverable: 18 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 • DCA Informal Review • 20 copies and 1 digital file of the proposed LDR amendments. Consultants Lump Sum Fee for Phase IV Task 4.................................... $ 79, 340.00 TASK 5 -PLANNING COMMISSION HEARINGS/ INITIAL REVISIONS 5.1 K&S will present and provide an overview of the planning and regulatory documents prepared in Task 4 at up to three (3) public hearings of the Planning Commission; solicit the comments of the Commission members; and, develop a list of the concerns and suggestions provided at the meetings. K&S will coordinate with the County regarding public notice of the meetings. Task 5 Deliverables: • Meeting agendas, as necessary; • Presentation materials; and • Written meeting summaries. Consultants Lump Sum Fee for Phase IV Task 5..................................... $ 6,850.00 TASK 6 - FINAL DRAFT ORDINANCES 6.1 Based on the comments provided in Task 5, K&S will prepare a final draft of the proposed LDR amendments. Task 6 Deliverable: • 20 copies and 1 digital file of the proposed LDR amendments. Consultants Lump Sum Fee for Phase IV Task 6....................................$ 24,960.00 TASK 7 - PUBLIC HEARINGS 7.1 K&S shall present the final land development code at a public hearing before the Planning Commission and two (2) public hearings before the Board of County Commissioners for adoption and enactment. Task 7 Deliverables: 19 Monroe County Comprehensive Plan Update SCOPE OF SERVICES — EXHIBIT A Monroe County and Keith and Schnars, P.A. December 2, 2009 • Hearing participation; • Presentation materials; and • Hearing summaries. Consultant's Lump Sum Fee for Phase IV Task 7.................................. $ 6,800.00 Note: If further proceedings are necessary (e.g., mediation, ligation), it is anticipated that K&S will be available, pursuant to an amendment to this contract, to provide additional services. Optional Services (not included in total) Additional Public Outreach Events: K&S staff will utilize the Mobile Information Station (MIS) for additional events, at locations as selected by the County, to obtain feedback, encourage public participation and answer stakeholder questions. Consultant's Lump Sum Fee each event shall not exceed .............................. $9,960.00 Other Meetings/Hearings as Coordinated by the County: K&S staff (up to 2 persons maximum) attendance at additional meetings/hearings before the Planning Commission (LPA) or BOCC for all tasks included in this Phase. Consultant's Lump Sum Fee each meeting/hearing shall not exceed............ $3, 760.00 TOTAL FEE FOR PHASE IV ...................................................$ $264,325.00 TOTAL LUMP SUM FEE ..................................................$ $1,031,985.00 20 3 O 1 O N n O C E Monroe County Comp Plan Update I - Keith and Schnars P.A. Bud et - Phase Task • January 2010 1.1_ -__- 80 $13 570.00 $0, 1.2 - _ _ 76 $11 020.00 $0. 1.3 _ 60 $5 900.00_ - $0, 1.4 2.15 $21600.00 $52,0' _ - 2.1 135 _ 19 875.00 $0. 2.2 58 $6 950 00 $0 2.3 - 44 - $5 900.00 $0. 2.4 1.1.3 _$11 320.00 $0. 2.5 _ 102 $12920.00 $0, One 2.6 67 _- $8 595.00 $65,St 3.1 386 $72 880.00 $0, _ 3_.2 335 - _ _ $55 260.00 $0. 3.3 102 $14 880.00 $0, 3.4 - 66 $10430.000 _ $0. 3.5 _ 73 __- - $10 790.00 $0. 3.6 69 _ _ $10 490.00 __ $174,7 4.1 1 192 - -_ $2%62-0.00 $0. 4.2_ 28 $4140.00 $0. 2011 -- - 4.3 52_ $6 700.00 $40.44 T Ibr PhaseOne _ 2253 $332.840.00 APHY2010 1.1 74 -__- $1 395.00 $0 -1.2 191 $22 840.00 $0. 1.3 384 $57 675.00 $0, 1.4 _ 28 $4 640.00- $0. 1.5 334 -- $28 960.00 - $126,f 2.1 - 74 _ 11 000.00 - - $0, 2.2 21 _ $2 420.00 $0. 2.3 7 - $840.00 $14.21 3.1 - _ _- 128 $17560.00 $17,55 Two 4.1 56_ 260.00 $0. 4.2 56_ _ _- - ____ 260.00 - -- $16,5: - 5.1 80 $10 810.00 $0. 5.2 77 ---- $11 000.00 - $0. 5.3 107 _ $15,610.00 $0. 5.4 38 5170.00 - $0. 5.5 34 $4 870.00 - $0. 5.6 12 _ $2 040.00 $49;51 &1 18 $2 060.00 $0. 6.2 12 $1,540.00 $3,6C -A-MI 7.1 12 - 2 040.00 - $2,04 __LoM I r Phase TWO - - 1743 .00 $229 9 8.1 22 $3,170.00 $3,17 91 -_ 28 $3 710.00 $0. Two (Resubmit)' 9.2 11 1 A 520.00 $5,21 10.1 _ 5 $940.00 $0, 10.2 5 - $840.00_ $1,7E Deember 2011 11.1 - 7 $1,600.00 $1,8C for Phose Two 78 11 780.00 $11-71 June 2011 1.1 15 $3 540.00 $0, 1.2 20 2.040.00 - _ $515E 2.1- _ _ _ 321 $45 500.00 $0, 2.2 31 _ 5.10.00 $0, 2.3 182 $17 420.00 $67.4 3.1 154 _ $23 210.00 $0. Three 3.2 168 $25 380.00 $0. 3.3 49 $6 960.00 $0, _ 3.4 59 320.00 $63,8' 4.1 159 -_-- -_ $25-300.00 -_ $0. 4.2 14 -- _ $1200.00 $0. 4.3 -- 20 __$3 260.00 $29,8: 5.1 -_18.2 _ $26210.00 $0, -- 201I 5.2 75 - _ $11 920.00 -- -- - $38,1: T her Phase Three 1449 SM830.00 $204 9 Nowrwber 2011 1.1 68 _ _ $12 495.00 _ $0. 1.2 - -- 20 $2 040.00 $14,5: 2.1 _ -_- 248 $35 220.00 $0, 2.2 - _ - 43 $6 020.00 - _ $0. 2.3 89 $14 440.00_ $55,61 3.1 560 $42.200.00 SO_ Producer. Ames A GouS1t, Inc. 9300 Greambo►o Drive, Sum 980 McLean, VA 22102 (703)827-2277 To: MONRAB COIIINTY MARATHON QOVIZRNMXM CEMI'ER 2793 OVERSEAS HIGHWAY MARATHON, FL 33M COMI NFN'TAL CASUALTY COMPANY (CNA) As set forth below, the named insured has in fora, on the date indicated. a policy of AmbladVEngi AM Profwstottai And Pollution Inoldad Liability insurance with a limit of liability of not less than the swunt indicated. Name of Insured: XZrM SAND SCHNTARS, PA A,ddrm of Insured: 6M NORTH ANDRRWS AVENUE IT. LAUDERDALE, FL 33309-2132 Policy Nnmbes: AEH oe 6W 12 27 huurance company CONT11NENTAL CASUALTY COMPANY (CNA) ARCEffnW S/kNGDMVRS PROFESSIONAL AND poLLtmow INCMENT LL42n TY This cadficate is issued as a 1 "t of informsion only and confess no rion upon the balder. By its isAta 0% i< door not alter, d►an M modify or n=d the provisiaaa of sold poEoy emd does not waive MY MAN themmda'. 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BW /AtYRE TO 00 50 MYN.L fin"m R0 OstMIM OR L"LIf11 OF ANY mm No" 7011 NOWA 16 R3 AGNITS OR Page 1 of 2 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Bulk Item: Yes X No Division: Growth Management Department: Staff Contact Person/Phone #: Susan Grimsley 289-2500 AGENDA ITEM WORDING: Approval to execute Consent of Lessor for Declaration of Condominium for Holzman Homes Condominium developed by Habitat of Humanity of the Upper Keys, Inc. located at 98980 Overseas Highway in Key Largo (RE# 00522220-000000) for five (5) units of affordable housing. ITEM BACKGROUND: The property is located at 98980 Overseas Highway, Key Largo. The County must join in the execution of the Declaration of Condominium pursuant to F.S. 718.104 as the County is the Lessor of the property to Habitat of Humanity. PREVIOUS RELEVANT BOCC ACTION: August 1, 2005 received deed for property from Gregory and Diana Pardo. August 15, 2005 approved 15 year lease with Habitat for Humanity of the Upper Keys, Inc. for the property with existing building for use by Habitat for a store and warehouse; said lease contemplating a future lease for building affordable housing units. July 17, 2007 Board approved Habitat for Humanity as one of seven (7) qualified developers to provide housing development services. February 20, 2008 reserved 5 ROGO allocations for Habitat for this property. March 18, 2009 extended ROGO Allocation reservation Resolution 083-2009 until August 20, 2010. Lease was executed on May 20, 2009. Amendment to Lease was executed on April 21, 2010 CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: n/a INDIRECT COST: COST TO COUNTY: n/a BUDGETED: Yes No SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No x AMOUNT PER MONTH APPROVED BY: County Atty x OMB/Purchasing Risk Management DOCUMENTATION: Included x Not Required Year DISPOSITION: AGENDA ITEM # PATRICIA GESSEL ATTORNEY AT LAW August 31, 2010 Susan Grimsley, Esq Monroe County 2798 Overseas Highway, #400 Marathon, FL 33040 RE: Habitat for Humanity of the Upper Keys, Inc. Holzman Homes Condominium 98980 Overseas Highway Key Largo, FL 33037 Dear Susan Grimsley: We respectfully request that Monroe County address the following urgent matter in the September 15, 2010 BOCC meeting: Regarding the Holzman Homes Condominium complex located at 98980 Overseas Highway, Key Largo, FL 33037, the underlying land is leased under a Lease Agreement between Monroe County and Habitat for Humanity of the Upper Keys, Inc., dated May 20, 2009 and recording in Official Records Book 2426, Page 355 on August 6, 2009, as amended. Article XII of the Lease Agreement, provides authorization from Monroe County, Lessor, to Habitat for Humanity of the Upper Keys, Inc., initial Lessee, to sell the Affordable Housing Units to qualified individuals. These individuals are scheduled to close no later than September 30, 2010 in order to qualify for the first time homebuyer tax credit. Prior to Closing, the Declaration of Condominium must be recorded in the Public Records of Monroe County and pursuant to Florida Statutes 718.104 (2), all persons who have record title to the interest in the land being submitted to condominium ownership, or their lawfully authorized agents, must join in the execution of the declaration, therefore Monroe County, as Lessor of the land, must join in the execution of the declaration. We respectfully request that Monroe County address this urgent matter in the September 15, 2010 BOCC meeting, sign the Consent of Lessor, which is made apart of the Declaration of Condominium and return to my attention for recording. Sincerely, Patricia Gessel, PL Attorney at Law f !/ Patricia Gessel OCEAN REEF KEY LARGO FAX 305-367-4260 305-453-5277 305-453-4985 99530 OVERSEAS Hwy., #2 • KEY LARGO, FL 33037 • pgessei@aol.com NOTICE OF RESTRICTIONS ANY INSTRUMENT OF CONVEYANCE LEASE, ASSIGNMENT, GRANT OR OTHER DISPO§ITON OF ANY INTEREST IN OR TO ANY PORTION OF THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT NOT LIMITED TO RIGHTS OF FIRST REFUSAL USE OCCUPANCY, INCOME, MEANS, RESALE RICE, RENTAL AND MORTGAGE LIMITATIONS, INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL RECORDS BOOK 2426, PAGE 355 AND BOOK 2466 PAGE 278 OF THE PUBLIC RECORDS OF MONkOE COURTY, FLORIDA. DECLARATION OF CONDOMINIUM OF HOLZMAN HOMES CONDOMINIUM Prepared by: Patricia Gessel, Esq. Patricia Gessel, PL Attorney at Law 99530 Overseas Highway, #2 Key Largo, FL 33037 Page 1 of 44 TABLE OF CONTENTS TO DECLARATION OF CONDOMINIUM OF HOLZMAN HOMES CONDOMINIUM I Article I Submission of Property to Act 4 Name and Address 5 II Definitions 5 IV Description of Property g V Common Elements 9 VI The Association I 1 VII Occupancy, Use, and Leasing Restrictions 12 13 VIII Easements IX Maintenance, Alteration, and Im rovements 14 X linsurance 16 XI Damage, Destruction, and Termination 20 XII Condemnation 22 XIII Purchase of Condominium Parcel by Association 25 XIV Notice of Lien or Suit 26 XV Rules and Regulations 26 XVI Amendment of the Declaration 27 XVII Conveyances, Sales and Transfers 29 XVIII Remedies 32 XIX Miscellaneous 34 Consent of Lessor 38 Page 2 of 44 EXHIBITS TO DECLARATION OF CONDOMINIUM OF HOLZMAN HOMES, A CONDOMINIUM "A" Legal Description of Real Property "B" Plot Plan, Survey and Graphic Description "C" Share of Common Expenses, Common Elements and Common Surplus "D" Articles of Incorporation of Holzman Homes Condominium Association, Inc. "E" By -Laws of Holzman Homes Condominium Association, Inc. "F" Rules and Regulations Page 3 of 44 DECLARATION OF CONDOMINIUM OF HOLZMAN HOMES CONDOMINIUM THIS DECLARATION is made by Habitat for Humanity of the Upper Keys, Inc., a Florida not for profit corporation (hereinafter called the "Developer") Developer is the owner of a one hundred (100) year leasehold interest in that certain real property (the "Property") by an Occupancy Agreement and Ground Lease, dated May 20, 2009 between Monroe County, as Lessor, and Habitat for Humanity of the Upper Keys, Inc., as Lessee, recorded in Official Records Book 2426, Page 355 and amended April 21, 2010 in Book 2466, Page 278 of the Public Records of Monroe County, Florida. The Property is legally described in Exhibit "A" attached hereto and is located at 98980 Overseas Highway, Key Largo, FL 33037, having RE # 00522220-000000. Developer intends to develop the Property for the sale of five (5) affordable housing units for qualified owners subject to the Affordable Restrictions set forth in the Occupancy Agreement and Ground Lease, dated May 20, 2009 between Monroe County, as Lessor, and Habitat for Humanity of the Upper Keys, Inc., as Lessee, recorded in Official Records Book 2426, Page 355 and amended April 21, 2010 in Book 2466, Page 278 of the Public Records of Monroe County, Florida and as set forth and further defined herein. The Developer intends to and does hereby submit the Property together with all buildings, structures, improvements, and other permanent fixtures thereon, and all rights and privileges belonging or in any way pertaining thereto, to the provisions of the Florida Condominium Act. The Developer further desires to establish for its own benefit and for the mutual benefit of all future owners or occupants of the Property or any part thereof, a condominium form of ownership; and intends that all future owners, occupants, mortgagees, and any other persons hereinafter acquiring an interest in the Property shall hold that interest subject to easements, restrictions, declarations, conditions, limitations, reservations and right of way of record and certain mutually beneficial restrictions and obligations with respect to the proper use, conduct, and maintenance of the property, as hereinafter set forth. ARTICLE I PURPOSE, NAME, DESCRIPTION OF PROPERTY Purpose: Submission of Property To Act 1.01 By this Declaration, Developer does hereby submit the Property, the Page 4 of 44 improvements thereon and the rights and easements appurtenant thereto to condominium ownership pursuant to the Condominium Act of the State of Florida and declares same a condominium known as Holzman Homes Condominium (the "Condominium"). Name and Address 1.02 The name of the Condominium is Holzman Homes Condominium. The Condominium is located at 98980 Overseas Highway, Key Largo, FL 33037, in the County of Monroe, State of Florida. Description of Property 1.03 The Property described in Exhibit "A" is hereby submitted to the condominium form of ownership. ARTICLE H DEFINITIONS 2.01 The terms used herein [and in the Exhibits attached hereto] shall have the meaning specified in the Act, and as follows, unless the context otherwise requires: (1) "Condominium Act" or "Act" means the Condominium Act of the State of Florida (F.S.718, et. Seq.) as it exists at the time of recording this Declaration of Condominium in the Public Records. (2) "Affordable Housing Unit" shall mean a residential housing unit that meets the moderate or lesser income requirements set forth in applicable sections of the Monroe County Land Development Regulations, as may be amended from time to time without limitation of Monroe County's complete legislative prerogatives, said restrictions to encumber the Property for the term of the one hundred (100) year lease. The singular includes the plural and the plural includes the singular when referenced herein. (3) "Affordable Restrictions" shall mean the affordable or employee housing regulations as set forth in applicable sections of the Monroe County Land Development Regulations or County Code, as hereinafter amended, except that in no event shall the amendment materially and adversely alter the obligations or rights of Lessee under the 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 the Lease where the effect upon an owner/Sublessee/mortgagor 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 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 Page 5 of 44 projects, shall not materially and adversely diminish or interfere with the Lessee's substantive benefits conferred under the 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 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 responsibility as set forth in the Lease. It is the intent and purpose and shall be the effect of the 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. (4) "Articles" means the Articles of Incorporation of the Association, attached hereto as Exhibit "D" and by this reference made a part hereof, as they may be amended from time to time. (5) "Assessment" means a proportionate share of the funds required for the payment of the Common Expenses [and Limited Common Expenses], which from time to time may be levied against each Unit Owner. (6) "Association" means Holzman Homes Condominium Association, Inc., a not for profit Florida corporation, and its successors, that is the entity responsible for the administration and management of the Condominium. (7) "Board" means the Board of Directors of the Association. (8) "Buildings" means all structures or structural improvements located on the Property and forming part of the Condominium. (9) "Bylaws" means the Bylaws for the government of the Association, attached hereto as Exhibit "E" and by this reference made a part hereof, as they may be amended from time to time. (10) "Common Elements" means any part of the Condominium Property, except the Units, as set forth and defined in Paragraph 4.04 of this Declaration, in which all of the Unit Owners have an undivided interest. (11) "Common Expenses" means the expenses arising out of the ownership of the Common Elements, including expenses incurred in the maintenance, administration, improvement, repair, or replacement of the Common Elements, whether incurred or estimated by the Board, for which the unit Owners are liable to Page 6 of 44 the Association in accordance with the terms of the Condominium Documents; (12) "Common Surplus" means the excess of all receipts of the Association over the amount of the Common Expenses; (13) "Condominium" means Holzman Homes, a Condominium, and consists of the Condominium Property submitted to the condominium form of ownership by this Declaration; (14) "Condominium Documents" means the Declaration, Bylaws, Articles, and all exhibits attached thereto as the same may be amended from time to time; (15) "Condominium Property" or "Property" means all property covered by the Declaration, and includes the Land and all improvements now existing or hereafter placed thereon, all easements, rights, interests and appurtenances thereto, and all personal property now or hereafter used in connection therewith; (16) "Declaration" means this Declaration and all Exhibits attached hereto, as it may be amended from time to time; (17) "Developer" means Habitat for Humanity of the Upper Keys, Inc., a Florida not for profit corporation, its successors and assigns. (18) "Institutional Mortgagee" means a bank, a savings and loan association, an insurance company, a FHA -approved mortgage lender, a pension fund, a credit union, a real estate or mortgage investment trust, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, a mortgage banker or any other lender generally recognized in the community as an institutional type of lender or its loan correspondent, or the Developer, holding a Mortgage on one or more individual Units. (19) "Lease" means the Occupancy Agreement and Ground Lease, dated May 20, 2009 between Monroe County, as Lessor, and Habitat for Humanity of the Upper Keys, Inc., as Lessee, recorded in Official Records Book 2426, Page 355 and amended April 21, 2010 in Book 2466, Page 278 of the Public Records of Monroe County, Florida. (20) "Limited Common Elements" means those portions of the Common Elements which are reserved for the use of a certain Unit or certain Units to the exclusion of all other Units. (21) "Member" means a member of the Association, membership in which is confined to persons holding fee ownership in a Unit. (22) "Occupant" means a person or persons in possession of a Unit, regardless of whether that person is the Unit Owner. (23) "Plans" means the site plan, building plans, floor plans, which depict the Page 7 of 44 location, layout, identifying numbers, and dimensions of the Units and the Limited Common Areas and the Common Areas, identified as Holzman Homes Condominium, that are attached hereto as Exhibit `B", and by this reference made a part hereof (24) "Special Assessments" means the costs and expenses, other than Common Expenses, for which the Unit Owners are liable to the Association. (25) "Unit" means a part of the Property designed and intended for any type of independent use and consisting of one or more rooms situated on one or more floors of the Buildings or a part or parts thereof, so specified as a Unit on the Plan. (26) "Unit Owner" means the person or persons whose estates or interests, individually or collectively, aggregate fee simple ownership of a Unit, of the attached Limited Common Elements, and of the attached undivided interest in the Common Elements. ARTICLE III SURVEY 3.1 Exhibit "B" to this Declaration contains a survey of the Property, a graphic depiction of the improvements, and a plot plan thereof. Such documents identify the Common Elements, Limited Common Elements, and all Units, with their relative locations and approximate dimensions. The parking areas are depicted thereon. ARTICLE IV DESCRIPTION OF PROPERTY Improvements 4.01 The Developer has constructed and has submitted to the condominium form of ownership five Units constructed primarily of modular construction and includes the foundations and footings, exterior walls, roofs, girders, beams, supports, porches, decks, mechanical systems and installations, attached to the Unit or lying within the Limited Common Area boundary which borders the Unit, providing service to that Unit, such as electrical power, gas, light, hot and cold water, heating and air conditioning, sanitary sewer facilities. Units 4.02 Each Unit is assigned a number, which is indicated on the Plans made Exhibit `B" hereto, so that no Unit bears the same designation as any other Unit. The legal description of each Unit shall consist of the identifying number or letter as shown on the Plan, the name of the Condominium, the name of the county in which the Parcel is situated, the name of the office in which this Declaration is recorded, and the deed book and page number where the first page of this Page 8 of 44 Declaration is recorded. Common Elements 4.03 The Common Elements shall include the common areas and facilities located substantially as shown on the Plans. Such Common Elements will include the following, unless specifically included within a Unit: (1) The Land described in Paragraph 1.03, hereof. (2) The walkways, parking areas, and landscaping. (3) The front covered porch connecting the front entrance of each unit. (4) All maintenance facilities, sanitary sewer facilities, water storage tanks, pumps, outdoor lighting, and the like. (5) All easements, rights, or appurtenances affecting or relating to the use of the Condominium Property, unless specifically included in any Unit. Limited Common Elements 4.04 The Limited Common Elements shall include the limited common areas located substantially as shown on the Plans. Such Limited Common Elements will include the following: (1) Decks and Porches. All rear decks and rear porches as shown on the Plans are Limited Common Elements, the right to the exclusive use of which shall be to the Unit Owner adjacent thereto. ARTICLE V COMMON ELEMENTS Ownership of Common Elements 5.01. Each Unit Owner shall be entitled to the percentage of Ownership in the Common Elements allocated to the respective Unit, as set forth in Exhibit "B". The ownership interest in the Common Elements shall be an undivided interest, and except as provided in the act and this Declaration, shall remain undivided. No Unit Owner shall bring any action for partition or division of the Common Elements. The ownership interest in the Common Elements shall not be conveyed, transferred, encumbered, or otherwise affected separate from the ownership of the Unit, and any agreement to the contrary shall be void. Page 9 of 44 Use of Common Elements 5.02. Each Unit Owner shall have the right to use the Common Elements (except any portions of the Property subject to leases made by or assigned to the Board) in common with all other Unit Owners, as may be required for the purposes of access, ingress to, egress from, use, occupancy, and enjoyment of the respective Unit owned by such Unit Owner. The Unit Owner shall have the right to the exclusive use and possession of the Limited Common Elements serving his Unit. The rights to use the Common Elements and Limited Common Elements shall be subject to and governed by the provisions of the Act, Declaration, Bylaws, and the rules and regulations of the Association. In addition, the Association shall have the authority to lease, grant concessions, or grant easements with respect to parts of the Common Elements, subject to the provisions of the Declaration and Bylaws. Share of Common Expenses 5.03. Each Unit Owner shall be liable for a proportionate share of the Common Expenses, and the proportionate share of Common Expenses shall be the same ratio as his percentage of ownership in the Common Elements. Payment of Common Expenses shall be in such amounts and at such times as determined in the Bylaws. No Unit Owner shall be exempt from payment of his or her proportionate share of the Common Expenses by waiver or nonuse or nonenjoyment of the Common Elements, or by abandonment of his Unit. Lien for Assessment 5.04. The Association shall have a lien on each Unit for any unpaid Assessments and Special Assessments and interest thereon against the Unit Owner, which lien shall also secure reasonable attorney's fees incurred by the Association incident to the collection of such Assessments and/or Special Assessments or the enforcement of such lien, together with all sums advanced or paid by the Association for taxes and payments on account of superior mortgages, liens, or encumbrances that may be required to be advanced by the Association to preserve or protect its lien. Said lien shall be effective from and after the time a claim of lien stating the description of the Condominium Unit, the name of the record owner thereof, the amount due and the dates when due, is recorded in the Public Records of Monroe County, Florida, and the lien shall continue in effect until all sums secured by the lien have been fully paid. Such claims of lien shall be signed and acknowledged by an officer of the Association or by an authorized agent of the Association. On full payment, the party making payment shall be entitled to a recordable satisfaction of lien. Liens for Assessments and/or Special Assessments may be foreclosed by a suit brought in the name of the Association in like manner as a foreclosure of a mortgage on real property. If, after any such foreclosure by the Association, the former Unit Owner or anyone claiming through him shall remain in possession of the Unit, he shall be required to pay a reasonable rental for the Unit, and the Association shall be entitled as a matter of law to the appointment of a receiver to collect the same. The Association may also bring an action to recover a money Page 10 of 44 judgment for unpaid Assessments and/or Special Assessments without waiving the lien securing the same. The Board of Directors may settle or compromise any personal action or any action to enforce or foreclose a lien as it may deem in the best interest of the Association. The Association shall be entitled to bid at any sale held pursuant to a suit to foreclose its lien for Assessments, Special Assessments, or both, and any interest thereon, and to apply as a cash credit against its bid all sums due, as provided herein, and covered by the lien enforced. Disposition of Common Surplus 5.05. The Common Surplus shall appertain to the Units in proportion to the liability for Common Expenses appertaining to each Unit; or in the alternative, such Surplus or any portion thereof may be added to a reserve fund for maintenance, repair, and replacement of the Common Elements, at the sole discretion of the Association. ARTICLE VI THE ASSOCIATION Powers and Duties 6.01. The Association shall be responsible for the maintenance, repair, replacement, administration, and operation of the Property. The Association shall have all the powers and duties set forth in the Act, as well as all the powers and duties granted to or imposed on it under the Condominium Documents as they may be amended from time to time. The Association is specifically authorized to enter into agreements by which its powers and duties, or some of them, may be exercised or performed by some other person or persons. Membership 6.02. Each Unit Owner shall be a member of the Association so long as he is a Unit Owner. A Unit Owners membership shall automatically terminate when he ceases to be a Unit Owner. The membership of a Unit Owner cannot be assigned or transferred in any manner except as an appurtenance to his Unit. Voting Rights 6.03. Each Unit is entitled to one vote, which vote is not divisible. Where the Unit Owner is more than one person, if only one person is present at a meeting of the Association, that person shall be entitled to cast the vote pertaining to that Unit. If more than one such person is present at a meeting, the vote pertaining to that Unit shall be cast by their unanimous consent. Page 11 of 44 ARTICLE VII OCCUPANCY, USE, AND LEASING RESTRICTIONS Occupancy 7.01. Each Unit shall be used only as one (1) single family Affordable Housing Unit as defined herein. Occupants shall meet Monroe County's requirements of moderate or lesser income affordable housing, adjusted for family size, and any other applicable Affordable Restrictions. No Unit may be subdivided in any manner. Use of Common Elements 7.02. The Common Elements shall be used only by the Unit Owners and their families, guests and invitees, for access, ingress to, and egress from the respective Units and for such other purposes incidental to use of the Units. The use, maintenance, and operation of the Common Elements shall not be obstructed, damaged, or unreasonably interfered with by any Unit Owner. Nuisances 7.03. No nuisances shall be allowed on the Property, nor any use or practice that is the source of unreasonable annoyance to occupants or that interferes with the peaceful possession and proper use of the Property by its owners and occupants. All parts of the Property shall be kept in a clean and sanitary condition, and no rubbish, refuse, or garbage shall be allowed to accumulate nor any fire hazard allowed to exist. Lawful Use 7.04. No offensive or unlawful use shall be made of the Property, nor any part thereof, and all valid laws, zoning ordinances, and regulations of all governmental bodies having jurisdiction thereof shall be observed. The responsibility of meeting the requirements of governmental bodies that require maintenance, modification, or repair of the Property shall be the same as the responsibility for the maintenance and repair of the Property concerned. Leasing/Transfer Restrictions 7.05. Any conveyance, sale, lease, assignment, grant or other disposition of any interest made with respect to the Property, including but not limited to any recorded Association governing documents, other than those mortgage interests provided for in Article XV of the "Lease", 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: Page 12 of 44 NOTICE OF RESTRICTIONS ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT OR OTHER DISPOSITON OF ANY INTEREST IN OR TO ANY PORTION OF THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME, MEANS, RESALE PRICE, RENTAL AND MORTGAGE LIMITATIONS, INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL RECORDS BOOK 2426, PAGE 355 AND AMENDED APRIL 21, 2010 IN BOOK 2466, PAGE 278 OF THE PUBLIC RECORDS OF MONROE COUNTY, FLORIDA. ARTICLE VIII EASEMENTS Each of the following easements is reserved to the Association for the benefit of its Members, their families, guests, invitees, and lessees, is a covenant running with the land, may not be amended or revoked, and shall survive the termination of the Condominium: (1) Utilities. Each Unit shall have an easement as may be required for Utility Services needed to serve the Condominium adequately; provided, however, easements through a Unit shall be according to the plans and specifications for the Building or as the Building is actually constructed or reconstructed, unless otherwise approved in writing by the Unit Owner. The Board of Directors or its designee shall have a right of access to each Unit to inspect such Unit, to maintain, repair or replace drainage facilities and the pipes, wires, ducts, vents, cables, conduits and other facilities related to the providing of Utility Services, and Common Elements contained in the Unit or elsewhere in the Condominium Property, and to remove any improvements interfering with or impairing the Utility Services, drainage facilities, and easements herein reserved; provided such right of access, except in the event of an emergency, shall not unreasonably interfere with the Unit Owners permitted use of the Unit, and except in the event of an emergency, entries shall not be made without prior notice to the Unit Owner. (2) Ingress and Egress. Each Unit shall have an easement for pedestrian traffic over, through, and across sidewalks, walks, walkways and lanes, and like passageways, as the same may from time to time exist on the Common Elements; and for vehicular traffic over, through, and across such portions of the Common Elements as from time to time may be paved and intended for such purposes, but the same shall not give or create in any person the right to park on any portion of the Condominium Property not designated as a parking area. This easement shall be nonexclusive and shall include the right of ingress and egress. (3) Drainage. Each Unit shall have an easement as may be required to drain the Condominium Property adequately. Page 13 of 44 (4) Support. Each Unit shall have an easement of support and of necessity and shall be subject to an easement of support and of necessity in favor of all other Units and the Common Elements. ARTICLE IX MAINTENANCE, ALTERATION, AND IMPROVEMENTS Maintenance by the Association 9.01 (1) The Association, as a Common Expense, shall maintain, repair, and replace if necessary the following: (a) All portions of the Common Elements and Limited Common Elements not the responsibility of a Unit Owner under the provisions of Paragraph 9.02, hereof. (b) All conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services that are contained within a Unit but service part or parts of the Condominium other than the Unit within which contained and that are not the responsibility of a Unit Owner under Paragraph 9.02, hereof. (2) The Association may enter into a contract with any firm, person, or corporation, or may join with other entities in contracting for the maintenance and repair of the Condominium Property and other type properties, and may delegate to such agent all or any portion of the powers and duties of the Association, except such as are specifically required by the Condominium Documents to have the approval of the Members of the Association; provided, however, that any such contract shall be for a term not to exceed one year, and shall provide that it may be terminated by either parry, without cause or payment of any fee, on not more than ninety (90) days' prior written notice. Maintenance by Unit Owners 9.02. Each Unit Owner shall maintain his Unit and the interior thereof in good tenantable condition and repair, and shall repair, maintain, and replace if necessary the following: (1) The fixtures and equipment in his Unit, including the refrigerator, stove, fans, dishwasher, and all other appliances, drains, plumbing fixtures and connections, sinks, and plumbing within the Unit; electric panels, wiring, outlets, and electric fixtures within the Unit; interior doors, windows, screening and glass, including glass between the Unit and any patio or deck adjacent to such Unit; all exterior doors, except the painting of the exterior faces of exterior doors which shall be a responsibility of the Association; and all wall coverings and carpeting within a Unit. (2) The plumbing, heating, ventilation, air conditioning, and electrical systems serving only that Unit, whether located within or without the boundary of that Unit, including the heater and air conditioning compressor, hot water heaters, fuse Page 14 of 44 boxes, wiring, fireplace flues, and all other plumbing, electrical, gas, or mechanical systems. In the event any such system or a portion thereof is within another Unit, or requires access to another Unit, the repair, maintenance, or replacement thereof shall be performed by the Association, and the cost thereof shall constitute an Assessment against the Unit Owner responsible therefor. Unit Owner's Covenants 9.03. Each Unit Owner agrees as follows: (1) To perform all maintenance, repairs, and replacements that are his obligation under Paragraph 9.02, hereof. (2) To pay for all of his utilities, including electricity, water, and propane, used within the Unit and all taxes levied against his Unit. (3) Not to make, or cause to be made, any repairs to any plumbing, heating, ventilation or air conditioning systems located outside his Unit but required to be maintained by him under Paragraph 9.02(2), hereof, except by licensed contractors authorized to do such work by the Association or its delegate. (4) Not to make any addition or alteration to his Unit or to the Common Elements or do any act that would impair the structural soundness or safety of any part of the Condominium Property. Structural alterations within a Unit may be made only with the written consent of the Association. (5) To make no alterations, additions, improvements, decoration, repair, replacement, or change to the Common Elements, or to any outside or exterior portion of the building, specifically including, but not limited to, installing garage or other exterior doors, or affixing shutters to windows, without the prior written consent of the Association. If consent is granted, the Unit Owner shall use only a licensed contractor who shall comply with all Rules and Regulations with respect to the work which may be adopted by the Association. The Unit Owner shall be liable for all damages to another Unit and to the Common Elements caused by any contractor employed by such Unit Owner or by the subcontractors or employees of such contractor, whether said damages are caused by negligence, accident, or otherwise. (6) To allow the Association, its delegates, agents, or employees at all reasonable times to enter into any Unit for the purpose of maintaining, inspecting, repairing, or replacing Common Elements; or for repairing, maintaining or replacing any plumbing, heating, ventilation or air conditioning system located within such Unit but serving other parts of the Condominium Property; or to determine, in case of emergency, the circumstances threatening Units or Common Elements and to correct the same; or, to determine compliance with the provisions of the Condominium Documents. (7) To promptly report to the Association any defects or needed repairs for which Page 15 of 44 the Association is responsible. Facade 9.04. The Association shall determine the exterior color scheme of the Buildings and shall be responsible for the maintenance thereof, except as may be otherwise provided for herein. No Owner shall paint any exterior surface or add or replace anything hereon or affixed thereto without written consent of the Association. Repairs 9.05. The Association shall be responsible for the maintenance, repair, and replacement of the Common Elements, except as otherwise provided for in Paragraph 9.02; provided, that if any repairs or replacements are made necessary because of abuse or negligent use thereof by a Unit Owner, the cost of such repair or replacement may be assessed against such Unit Owner. Alteration and Improvement 9.06. Except for repairs and maintenance of the existing improvements, after the completion of the improvements in accordance with the Plans, there shall be no alteration or further improvement of the Common Elements without the prior approval of not less than 66 2/3 percent of the Members. Any such alteration or improvement shall be financed and constructed in accordance with the provisions of the Bylaws. ARTICLE X INSURANCE Specified Insurance 10.01. Insurance, other than title insurance, that shall be carried on the Property and the property of the Unit Owners shall be governed by the provisions of this Article. Insurance coverage maintained by the Association pursuant to these provisions is hereafter referred to as "Specified Insurance." Location of Policies 10.02. The Association shall retain the original of all insurance policies for Specified Insurance in a place of safekeeping such as a safe or a safety deposit box and shall provide copies of such policies to Institutional Mortgagees requesting such copies. Notice of Change in Insurance Coverage 10.03. No material adverse change (as such materiality is determined by the Board) in the Specified Insurance provisions, including changes in the amount of coverage, the risks covered, the ratio to value of coverage, or endorsements or Page 16 of 44 other changes in the coverage provisions, may be effected by the Association without written notice to the Mortgage Holder. Qualification of Insurance Company 10.04. Each company issuing Specified Insurance must be specifically authorized by the laws of the State of Florida to transact such business as is necessary to provide the Specified Insurance. Named Insured 10.05. The named insured on all policies of Specified Insurance shall be the Association, and in the case of property damage insurance, the Association, as agent for all Unit Owners (without naming them) and their mortgagees (without naming them), as their interests may appear. Property Damage Insurance 10.06. The Board shall secure and maintain in effect a policy of property damage insurance providing coverage in an amount not less than the full replacement value of the Buildings, excluding coverage of improvements and betterments of Units made by Unit Owners, and including coverage for all improvements, fixtures and personal property included in the Common Elements. The policy shall include an "Agreed Amount Endorsement" or its equivalent, if available, or an "Inflation Guard Endorsement," if available. Such coverage shall afford protection against: (1) Risks as are covered by an all-risk form; and (2) Other risks as from time to time shall be customarily covered with respect to condominium buildings similar in construction, location and use as the Buildings. Public Liability Insurance 10.07. The Board shall secure and maintain in effect a comprehensive general liability and automobile liability insurance policy covering loss or damage resulting from an occurrence on the Property, in such amounts as may be required by the Board, but not less than $ 1,000,000.00, covering all claims for bodily injury or property damage, or both, arising out of a single occurrence. The coverage shall include protection against water damage liability and, if applicable, elevator collision, garage keeper's liability, and such other risks as shall customarily be covered with respect to condominium buildings similar in construction, location, and use. Personnel Coverages 10.08. Should the Association employ personnel, all coverages required by law, including worker's compensation, shall be obtained so as to meet the requirements of the law. Page 17 of 44 Fidelity Bonds 10.09. The Board shall secure and maintain in effect adequate fidelity coverage to protect against loss of money through dishonest acts on the part of officers, directors, employees, and all others who handle or are responsible for handling the funds of the Association, including but not limited to employees or professional managers. Such fidelity bonds shall meet the following requirements. (1) Fidelity bonds shall name the Association as an insured or obligee. (2) The bonds shall be written in an amount equal to at least 150 percent or the estimated annual Common Expenses, including reserves, unless a greater amount is required by a federal governmental agency insuring or purchasing Mortgages encumbering Units. (3) The bonds shall contain waivers of any defense based on the exclusion of persons who serve without compensation from any definition of "employee" or similar expression. (4) The bonds shall provide that they may not be cancelled or substantially modified (including cancellation for nonpayment of premium) without at least 30 days' prior written notice to the Mortgage Holder. Other Coverage 10.10. The Board shall secure boiler and machinery insurance, directors' and officers' liability insurance, and plate glass insurance as it deems necessary and shall also have authority to obtain such other insurance as it deems desirable, in such amounts, from such sources and in such forms as it deems desirable. The premiums for such insurance shall be a Common Expense. Unit Owners' Individual Responsibilities 10.11. A Unit Owner shall be liable for any claim, damage, or judgment entered as a result of the use or operation of his Unit caused by his own conduct. Each Unit Owner shall be responsible for obtaining his own insurance on the contents of his own Unit and the contents of any Limited Common Elements serving his Unit, as well as additions and improvements thereto, decorations, furnishings, and personal property therein, and personal property stored elsewhere on the Property. Premiums 10.12. Premiums for insurance maintained by the Association shall be paid by the Association as a Common Expense. Should the Association fail to pay such premiums when due, or should the Association fail to comply with other insurance requirements of the Mortgage Holder, the Mortgage Holder shall have the right, at Page 18 of 44 its option, to order insurance policies and to advance such sums as are required to maintain or procure such insurance. To the extent of any money so advanced, the Mortgage Holder shall be subrogated to the Assessment and lien rights of the Association as against the individual Unit Owners for the payment of such item of Common Expense. Association as Agent 10.13. All insurance policies purchased by the Association shall provide that all proceeds covering property losses shall be paid to the Association. The Association is hereby irrevocably appointed agent with full power of substitution, for each Unit Owner and for each owner of any other insured interest in the Property. The Association shall have power to adjust all claims arising under insurance policies purchased by the Association; to bring suit thereon in its name and/or in the name of other insureds; to deliver releases on payments of claims; to compromise and settle such claims; and otherwise to exercise all of the rights, powers, and privileges of the Association and each Unit Owner or any other holder of an insured interest in the Property under such insurance policies. However, the actions of the Association shall be subject to the approval of the Mortgage Holder if the claim shall involve more than one Unit, and if only one Unit is involved, such actions shall be subject to the approval of any Institutional Mortgagee holding a Mortgage encumbering such Unit. Shares of Proceeds 10.14. The Association shall receive such insurance proceeds as are paid to it and shall hold the same in trust for the purposes stated herein and for the benefit of the Unit Owners and their mortgagees in the following shares: (1) Common Elements. An undivided share of the proceeds on account of damage to Common Elements shall be held for each Unit Owner, with such share's portion of the total proceeds being the same percentage as the share of the Common Elements appurtenant to his Unit as set forth in Exhibit `B". (2) Units. Except as provided in subparagraph (3), below, proceeds on account of damage to Units shall be held in the following undivided shares: (a) When the Buildings are to be restored, the proceeds shall be held for the Unit Owners of damaged Units, with the share of each in the total proceeds being in the proportion that the cost of repairing the damage suffered by such Unit Owner bears to the total cost of repair, which costs shall be determined by the Board. (b) When the Buildings are not to be restored, the proceeds shall be held for the Unit Owners in undivided shares that are the same as their respective shares of the Common Elements as set forth in Exhibit `B". (3) Mortgagees. In the event a mortgagee endorsement has been issued with respect to a Unit, the share of the Owner of that Unit shall be held in trust for the mortgagee and the Unit Owner as their interests may appear; provided, however, Page 19 of 44 that no mortgagee shall have any right to determine or participate in the determination whether or not any damaged property shall be reconstructed or repaired except as may be specifically provided to the contrary elsewhere in this Declaration. Distribution of Proceeds 10.15. Proceeds of insurance policies received by the Association shall be distributed to or for the benefit of the beneficial owners in the following manner: (1) Reconstruction or Repair. First, if the damage for which the proceeds are paid is to be repaired or reconstructed, the remaining proceeds shall be paid to defray the cost thereof. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owners, with remittances to Unit Owners and mortgagees being payable jointly to them. This is a covenant for the benefit of any mortgagee of a Unit and may be enforced by any such mortgagee. (2) Failure to Reconstruct or Repair. If it is determined that the damage for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be distributed to the beneficial owners, with remittances to Unit Owners and their mortgagees being payable jointly to them. This is a covenant for the benefit of any mortgagee of a Unit and may be enforced by any such mortgagee. ARTICLE XI DAMAGE, DESTRUCTION, AND TERMINATION Determination to Reconstruct or Repair 11.01. If any part of the Common Elements shall be damaged to the extent that reconstruction or repair is necessary, the determination of whether or not it shall be reconstructed or repaired shall be made in the following manner: (1) Common Elements. If the damage is solely to a portion or portions of the Common Elements and does not extend to the Units, the same shall be reconstructed or repaired. (2) Common Elements and Units. If the damage extends to one or more Units as well as the Common Elements, then the Buildings shall be reconstructed and repaired pursuant to the provisions of this Article, unless within 20 days after notice is given to all Unit Owners and Institutional Mortgagees of the extent of the damage and the amount of such insurance that is forthcoming, Unit Owners of Units to which not less than 80 percent of the votes in the Association appertain and the holders of all Mortgages on all such Units shall agree in writing that the same shall not be reconstructed or repaired. Page 20 of 44 Plans and Specifications 11.02. Any reconstruction or repair must be sufficient to restore the Property to substantially the same condition in which it existed prior to the casualty and must be made substantially in accordance with the plans and specifications of the original Buildings. In the alternative, reconstruction may be according to plans and specifications approved by the Board. If the damaged property includes part or all of the Buildings, approval shall be by the Unit Owners of all damaged Units and by the Mortgage Holder if it shall hold a Mortgage on one or more of the damaged Units. If the Mortgage Holder does not hold a Mortgage on at least one of the damaged Units, approval shall be by all Institutional Mortgagees holding Mortgages on the damaged Units. No approvals shall be unreasonably withheld. Responsibility 11.03. If the damage is only to those parts of Units for which the responsibility of maintenance and repair is that of the respective Unit Owners, then those Unit Owners shall be responsible for reconstruction and repair after casualty. In all other instances the responsibility of reconstruction and repair after casualty shall be that of the Association. Estimate of Costs 11.04. When the Association shall have the responsibility of reconstruction or repair, prior to the commencement of reconstruction and repair the Association shall obtain reliable and detailed estimates of the cost to repair or rebuild. Assessments for Reconstruction and Repair 11.05. If the proceeds of insurance are not sufficient to defray completely the estimated cost of reconstruction and repair by the Association, Special Assessments shall be levied against the Unit Owners who own damaged Units, and, in the case of damage to Common Elements, Assessments shall be made against all Unit Owners in sufficient amounts to provide funds for the payment of such costs. Special Assessments against Unit Owners for damage to Units shall be in the proportion that the cost of reconstruction and repair of their respective Units bears to the total cost of such reconstruction and repair. An Assessment against a Unit Owner on account of damage to Common Elements shall be in proportion to the Unit Owner's share in the Common Elements. Special Assessments for reconstruction and repair may be collected, and the collection enforced, in the same manner as an Assessment. Construction Funds 11.06. The funds for the payment of costs for reconstruction and repair after casualty, which shall consist of the proceeds of insurance held by the Association and funds collected by the Association from Assessments and Special Assessments against Unit Owners, shall be disbursed in payment of such costs in the following Page 21 of 44 manner: (1) Lesser Damage. If the amount of the estimated cost of reconstruction and repair that is the responsibility of the Association is less than 0.6 percent of the insured value of the Buildings, then the construction fund shall be disbursed in payment of such costs on the order of the Board. However, on request to the Board by an Institutional Mortgagee that is the beneficiary of an insurance policy the proceeds of which are included in the construction fund, the fund shall be disbursed in accordance with the procedure set forth in paragraph (b), below. (2) Major Damage. If the amount of the estimated cost of reconstruction and repair that is the responsibility of the Association is 0.6 percent of the insured value of the Buildings or more, then the construction fund shall be disbursed in payment of such costs in the manner provided by the Board. (3) Unit Owner. If there is a balance of insurance proceeds after the payment of the costs of reconstruction and repair that are the responsibility of the Association, this balance shall be distributed to Unit Owners of damaged Units who are responsible for the reconstruction and repair of the damaged portions of their Units. The distribution to each such Unit Owner shall be made in the proportion that the estimated cost of reconstruction and repair of such damage to his Unit bears to the total of such estimated costs in all damaged Units. However, no Unit Owner shall be paid an amount in excess of such estimated costs for his Unit. If an Institutional Mortgagee holds a Mortgage upon a Unit, the distribution shall be paid to the Unit Owner and the Institutional Mortgagee jointly. (4) Surplus. It shall be presumed that the first monies disbursed in payment of costs of reconstruction and repair shall be from insurance proceeds. If there is a balance in a construction fund after payment of all costs of the reconstruction and repair for which the fund is established, such balance shall be distributed to the beneficial owners of the fund. Termination 11.07. The termination of the Condominium maybe effected by the agreement of Unit Owners of Units to which not less than 100 percent of the votes in the Association appertain, and the unanimous consent of all Mortgages on such Units. The agreement shall be evidenced by a written instrument executed in the manner required for conveyance of land, and recorded in the public records of Monroe County. After termination of the Condominium, the Unit Owners shall own the Condominium Property and all assets of the Association as tenants in common in undivided shares. ARTICLE XII CONDEMNATION Determination Whether to Continue Condominium 12.01. Whether the Condominium will be continued after condemnation will be Page 22 of 44 determined in the manner provided in Article XI, hereof, for determining whether damaged Common Elements will be reconstructed and repaired after casualty. For this purpose, the taking by condemnation shall be deemed to be a casualty. Disbursement of Funds 12.02. If the Condominium is terminated after condemnation, the proceeds of the condemnation awards will be deemed to be insurance proceeds and shall be owned and distributed in the manner provided in this Declaration for the distribution of insurance proceeds if the Condominium is terminated after damage to the Common Elements. If the Condominium Is not terminated after condemnation, the size of the Building will be reduced and the property damaged by the taking will be made usable in the manner provided below. The proceeds of said awards shall be used for these purposes and shall be disbursed in the manner provided for disbursement of funds by the Association after damage to the Common Elements. Unit Reduced but Habitable 12.03. If the taking reduces the size of a Unit and the remaining portion of the Unit can be made habitable, the award for the taking of a portion of the Unit shall be used for the following purposes in the order stated, and the following changes shall be effected in the Condominium: (1) Restoration of Unit. The Unit shall be made habitable. If the cost of the restoration exceeds the amount of the award, and the Owner of the Unit does not within a reasonable period of time provide the additional funds required for restoration, such additional funds may, in the discretion of the Board of Directors, be expended for restoration by the Association and be assessed against the Unit Owner as a Special Assessment. (2) Distribution of Surplus. The balance of the award, if any, shall be distributed to the Owner of the Unit and to the holder of any Institutional Mortgage encumbering the Unit, the remittance being made payable jointly to the Owner and any such Institutional Mortgagee. (3) Adjustment of Shares in Common Elements. If the floor area of the Unit is reduced by the taking, the percentage representing the share in the Common Elements, the Common Expenses and the Common Surplus appurtenant to the Unit shall be reduced in the proportion by which the floor area of the Unit is reduced by the taking, and then the shares in the Common Elements, Common Expenses, and Common Surplus appurtenant to the other Units shall be restated as percentages of the difference between 100 percent and the total of the new shares as reduced by the taking so that the shares of such other Units shall be in the same proportions to each other as before the taking and so that the total of the percentages of such shares shall still equal 100 percent. Page 23 of 44 Unit Made Uninhabitable 12.04. If the taking is of the entire Unit, or so reduces the size of a Unit that it cannot be made habitable, the award for the taking of the Unit shall be used for the following purposes in the order stated, and the following changes shall be effected in the Condominium: (1) Payment of Award. The award shall be paid first to any Institutional Mortgagee in an amount sufficient to payoff its mortgage on such Unit; and then jointly to the Unit Owner and other mortgagees of the Unit in an amount not to exceed the market value of the Condominium Parcel immediately prior to the taking as diminished by any sums from the award previously reserved for any Institutional Mortgagee; and the balance, if any, to the repairing and replacing of the Common Elements damaged by the taking. (2) Addition to Common Elements. The remaining portion of the Unit, if any, shall become part of the Common Elements and shall be placed in condition for use by all of the Unit Owners in the manner approved by the Board of Directors; provided that if the cost of the work shall exceed the balance of the fund from the award for the taking, the work shall be approved in the manner elsewhere required in this Declaration for further improvement of the Common Elements. (3) Adjustment of Shares in Common Elements, Common Expenses, and Common Surplus. The shares in the Common Elements, the Common Expenses, and the Common Surplus appurtenant to the Units that continue as part of the Condominium shall be adjusted to distribute the ownership of the other shares among the reduced number of Unit Owners. This adjustment shall be done by restating said shares of the continuing Unit Owners as percentages aggregating 100 percent so that the shares appurtenant to the Units of the continuing Owners shall be in the same proportions to each other as before the adjustment. (4) Assessments. If the balance of the award (after payments to the Unit Owner and such Owner's mortgagees as above provided) for the taking is not sufficient to finance the alteration of the remaining portion of the Unit for use as a part of the Common Elements, the additional funds required for such purposes shall be raised by Special Assessments against all of the Unit Owners who will continue as Owners of Units after the changes in the Condominium effected by the taking. Such Special Assessments shall be made in proportion to the shares of those Owners in the Common Elements after the changes effected by the taking. (5) Arbitration. If the market value of a Condominium Parcel prior to the taking cannot be determined by agreement among the Unit Owner, mortgagees of the Unit, and the Association within thirty days after notice by either parry, the value shall be determined by arbitration in accordance with the then existing rules of the American Arbitration Association, except that the arbitrators shall be two appraisers appointed by the American Arbitration Association who shall base their determination on an average of their appraisals of the Condominium Parcel; and a judgment of specific performance on the decision rendered by the arbitrators may Page 24 of 44 be entered in any court of competent jurisdiction. The cost of arbitration proceedings shall be assessed against all Owners of Units prior to the taking in proportion to the shares of the Owners in the Common Elements as they exist prior to the changes effected by the taking. Taking of Common Elements 12.05. Awards for the taking of Common Elements shall be used to make the remaining portion of the Common Elements usable in the manner approved by the Board of Directors; provided that if the cost of the work shall exceed the balance of the funds from the awards for the taking, the work shall be approved in the manner required elsewhere in this Declaration for further improvement of the common elements. The balance of the awards for the taking of the Common Elements, if any, shall be distributed to the Unit Owners in the shares in which they own the Common elements after adjustment of these shares on account of the condemnation, except that if a Condominium Parcel is encumbered by an Institutional Mortgage, the distribution shall be paid jointly to the owner and the Institutional Mortgagee of the Condominium Parcel. ARTICLE XIII PURCHASE OF CONDOMINIUM UNIT BY ASSOCIATION Decision 13.01. The decision of the Association to purchase a Condominium Unit shall be made by the Board of Directors without the approval of the members except as provided in Paragraphs 13.02 and 13.03, hereof. Limitation 13.02. If at any one time the Association is already the owner of or has agreed to purchase one or more Condominium Units, it may not purchase any additional Condominium Unit without the prior written approval of members holding 75 percent of the votes of those members eligible to vote thereon, except as provided herein. A member whose Condominium Parcel is the subject matter of the proposed purchase shall be ineligible to vote thereon. Notwithstanding the foregoing, however, the foregoing limitation shall not apply to Condominium Parcels either to be purchased at a public sale resulting from a foreclosure of the Association's Lien for delinquent Assessments, Special Assessments, or both where the bid of the Association does not exceed the amount found due the Association, or to be acquired by the Association in Lieu of foreclosure of such lien if the consideration therefor does not exceed the cancellation of such lien. In any event, the Board of Directors or a designee thereof, acting on behalf of the Association, may only purchase a Condominium Parcel in accordance with Paragraph 13.01 hereof, or as the result of a sale pursuant to the foreclosure of (i) a lien on the Condominium Parcel for unpaid taxes; (ii) the lien of a mortgage; (iii) the lien for Page 25 of 44 unpaid Assessments, Special Assessments or both; or (iv) any other judgment lien or lien attaching to such Condominium Parcel by operation of law. ARTICLE XIV NOTICE OF LIEN OR SUIT Notice of Lien 14.01. A Unit Owner shall give notice in writing to the Secretary of the Association of every lien on his Condominium Unit, other than liens for Institutional Mortgages, taxes, and special assessments, within five days after he learns of the attaching of the lien. Notice of Suit 14.02. A Unit Owner shall give notice in writing to the Secretary of the Association of every suit or other proceeding that may affect the title to his Condominium Unit, with such notice to be given within five days after the Unit Owner obtains knowledge thereof. Failure to Comply 14.03. Failure to comply with this section will not affect the validity of any judicial proceeding. ARTICLE XV RULES AND REGULATIONS Compliance 15.01. Each Unit Owner and the Association shall be governed by and shall comply with the terms of the Condominium Documents and the Rules and Regulations applicable to the Condominium Property. Failure of the Unit Owner to comply therewith shall entitle the Association or other Unit Owners to the following relief in addition to other remedies provided in the Condominium Documents and the Condominium Act: Enforcement 15.02. The Association, through the Board of Directors, is hereby empowered to enforce the Condominium Documents and all rules and regulations of the Association by such means as are provided by the laws of the State of Florida, including the imposition of reasonable fines from time to time as set forth in the Bylaws. In the event a Unit Owner fails to maintain his Unit in the manner required in the Condominium Documents and any rules and regulations of the Association, the Association, through the Board of Directors, shall have the right to assess the Unit Owner and the Unit for the sums necessary to do the work Page 26 of 44 required to effect compliance and to collect, and enforce the collection of, a Special Assessment therefor as provided in this Declaration. In addition, the Association shall have the right, for itself and its employees and agents, to enter such Owner's Unit and perform the necessary work to effect compliance. Negligence 15.03. A Unit Owner shall be liable for the expense of any maintenance, repair, or replacement rendered necessary by his act, neglect, or carelessness or by that of any member of his family, his lessees, or his or their guests, invitees, employees, or agents, but only to the extent that such expense is not met by the proceeds of insurance carried by the Association. Such liability shall include any increase in fire and casualty insurance rates occasioned by the use, misuse, occupancy, or abandonment of a Unit, or of the Common Elements or of the Limited Common Elements. The liability for such increases in insurance rates shall equal five times the first resulting increase in the annual premium rate for such insurance. No Waiver of Rights 15.04. The failure of the Association or any Unit Owner to enforce any covenant, restriction, or other provision of the Condominium Act, the Condominium Documents, or any Rules and Regulations adopted pursuant thereto shall not constitute a waiver of the right to do so. ARTICLE XVI AMENDMENT OF THE DECLARATION Notice 16.01. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting of the Association or the Board of Directors at which a proposed amendment is considered. Resolution 16.02. An amendment may be proposed by either a majority of the Board of Directors or by members holding 33 1 /3 percent of the votes of the Association. A resolution adopting a proposed amendment must be adopted by an affirmative vote of not less than a majority of the Board of Directors and by Members holding 60 percent of the votes of the Association. Agreement 16.03. In the alternative, an amendment may be made by an agreement signed and acknowledged by the record owners of all Units in the manner required for the execution of a deed. Page 27 of 44 Amendment by Developer 16.04. (1) In addition to the procedures described above in this Article, as long as the Developer shall hold fee simple title to any Unit, this Declaration may be amended by the Developer if such amendment does not violate the terms of the Condominium Act or this Declaration. The subject matter of any such amendment may include, without limitation, the combining of two or more Units or the subdividing of one or more Units owned by the Developer (without, however, changing the aggregate percentage of Common Elements appurtenant to such Units) or any matter required by a governmental agency or an Institutional Mortgagee willing to make or purchase a permanent mortgage loan secured by a Unit. Any amendment by the Developer pursuant to this subsection shall be effective without the joinder of any record owner of any Unit, or the joinder of any owner of any lien thereon; provided, however, that no such amendment shall adversely affect the lien or priority of any previously recorded Institutional Mortgage as it affects a Condominium Parcel, or change the size or dimensions of any Unit not owned by the Developer without the written consent of the Owner of such Unit and the holder of any Institutional Mortgage encumbering such Unit. If such an amendment makes any changes in the size or dimension of any Unit, such changes shall be reflected by an amendment to this Declaration with a survey attached, and said amendment need only be executed and acknowledged by the Developer and any holders of Institutional Mortgages encumbering any such Unit. Such a survey shall be certified in the manner required by the Condominium Act. If more than one Unit is changed, the Developer shall apportion among the Units the shares in the Common Elements, Common Expenses, Common Surplus, and voting rights of the Units concerned, and such shares of the Common Elements, Common Expenses, Common Surplus, and voting rights shall be set forth in the amendment to this Declaration. (2) As long as the Developer is the Owner of any Unit, no amendment to this Declaration may be made unless the Developer shall join in the execution of such amendment, nor shall any amendment make any change that would in any way affect the rights, privileges, or powers of the Developer unless the Developer shall join in the execution thereof. Proviso 16.05. Any provision in this section to the contrary notwithstanding, however, no amendment shall discriminate against any Unit Owner or against any Unit or class or group of Unit Owners or Units unless the Unit Owners so affected and the holders of Institutional Mortgages on such Units shall unanimously consent thereto; no amendment shall change any Unit or change the percentage of its share in the Common Elements appurtenant thereto or any other of its appurtenances, or increase the percentage of any Unit Owner's share of the Common Expenses, unless the Owners of Units that would be changed or the percentage of whose shares would be changed and all holders of Institutional Mortgages on such Units shall join in the execution of the amendment; no amendment shall change the Page 28 of 44 definition of, or inclusion of, Affordable Restrictions and Affordable Housing Unit or any Restrictions implemented by the underlying land Lease and except for amendments adopted pursuant to Paragraph 16.04 hereof, no amendment shall change the terms of any Unit Owner's occupancy of his Unit or his right to convey or lease his Unit. Execution and Recording 16.06. A copy of each amendment shall be attached to a certificate which shall include the recording data identifying this Declaration, certifying that the amendment was duly adopted, which certificate shall be executed by the President and Secretary of the Association with formalities of a deed. The amendment shall be effective when such certificate and copy of the amendment are recorded in the Public Records of Monroe County. XVH- CONVEYANCES, SALES AND TRANSFERS. 17.1. In order to insure and preserve the affordability of the Units, subject to the Affordable Restrictions as set forth and further defined herein and to insure a community of congenial occupants and to protect the value of the Units and to further the continuous, harmonious development of the Holzman Homes Condominium community, the sale and transfer of Units, by any Unit Owner other than the Developer, shall be subject to the provisions herein set forth. 17.2. Prior to the sale, conveyance or transfer of any Unit to any other person, the Unit Owner shall notify the Board of Directors of the Association, in writing, of the name and address of the person to whom the proposed sale, conveyance or transfer is to be made, furnish the proposed contract for sale and purchase, provide proof of compliance with moderate or lesser income requirements set forth in applicable sections of the Monroe County Land Development Regulations and any other Affordable Restrictions defined herein, and such other information as may be required by the Board of Directors of the Association. Within fifteen (15) days from receipt of said notification, the Board of Directors of the Association shall either approve or disapprove the proposed sale, transfer or conveyance, in writing, and shall notify the Unit Owner of its decision. In the event the Board of Directors shall fail to approve or disapprove the proposed sale, transfer or conveyance within said fifteen (15) days, the failure to act as aforesaid shall be considered approval of the sale. 17.5. An affidavit of the Secretary of the Association stating that the Board of Directors has approved in all respects, on a certain date, the sale or transfer of a Unit to certain persons, shall be conclusive evidence of such fact. 17.6. An affidavit of the Secretary of the Association stating that the Board of Directors was given proper notice on a certain date of a proposed sale or transfer and that the Board of Directors disapproved or failed to act on such proposed sale or transfer, and that thereafter all the provisions hereof which constitute conditions Page 29 of 44 precedent to a sale or transfer of a Unit have been complied with, so that the sale or transfer of a particular Unit to particularly named persons does not violate the provisions hereof, shall be conclusive evidence of such facts for the purpose of determining the status of the persons to whom such Unit is sold or transferred. Such affidavit shall not be evidence of the fact that the subsequent sale or transfer to such persons was made at the price, terms and date in the notice given to the Secretary of the Association, but 120 days after the date of the notice to the Board of Directors, as stated in the affidavit, the redemption rights herein afforded the members of the Association shall terminate. 17.7. The Association shall have the right to refuse to give written approval to any sale or transfer until all Assessments with respect to the particular Unit are paid, in full. 17.9. In the case of the death of the Owner of a Unit, the surviving spouse, if any, and if no surviving spouse, the other members of such Unit Owner's family, may continue to use the said Unit; and if such surviving spouse or other member or members of the deceased Unit Owner's family shall have succeeded to the ownership of the Unit, the ownership thereof shall be transferred by legal process to such new Owner. In the event said decedent shall have conveyed or bequeathed the ownership of the decedent's Unit to some designated person or persons other than the surviving spouse or members of the decedent's family, as aforedescribed, or if some other person is designated by such the decedent's legal representative to receive the ownership of the Unit, or if under the laws of descent and distribution of the State of Florida, the Unit descends to some person or persons other than the Unit Owner's surviving spouse or members of the decedent's family as aforedescribed, the Board of Directors of the Association shall, within thirty (30) days of proper evidence of rightful designation served upon the President of the Association, or within thirty (30) days from the date the Association is placed on actual notice of the said devisee or descendant, express its refusal or acceptance of the individual or individuals so designated as Owners of the Unit. If the Board of Directors of the Association shall consent, ownership of a Unit may be transferred to the person or persons so designated, who shall thereupon become the Owner of the Unit, subject to the provisions of this Declaration and the By -Laws of the Association. If, however, the Board of Directors of the Association shall refuse to consent, then the Board of Directors with the assistance of Habitat for Humanity of the Upper Keys, Inc. shall be given an opportunity, during the 30 days next after said last above -mentioned 30 days, to purchase or to furnish a purchaser, for cash, for the said Unit, the purchase price to be determined by an appraiser appointed by a senior judge of the Circuit Court in and for Monroe County, Florida, upon 10 days' notice, on petition of any party in interest. The expense of appraisal shall be paid by the said designated person or persons or the legal representative of the deceased Unit Owner out of the amount realized from the sale of said Unit. In the event the Unit Owners do not exercise the privilege of purchasing or furnishing a purchaser of said Unit within such period, and upon such terms, the person or persons so designated may take title to the Unit; or such person or persons or the legal representative of the deceased Unit Owner may sell the said Unit; but such sale shall be subject in all other respects to the provisions of this Declaration and Page 30 of 44 the By -Laws of the Association 17.10. Any sale not authorized pursuant to the terms of this Declaration shall be void unless subsequently approved by the Association. 17.11. There shall be deposited and delivered to the Association, a reasonable screening fee not to exceed $50.00, simultaneously with the giving of notice of intention to sell for the purpose of defraying the Association's expenses. It is understood that no fee shall be charged in connection with a transfer or approval in excess of the expenditures reasonably required. 17.12. The foregoing provisions of this Article XVII shall not be applicable to transfers of Units by a Unit Owner to any member of the Unit Owner's immediate family (i.e., spouse, children or parents); or if a Unit is owned by a form of co- tenancy, to transfers of Units from one co -tenant to the other co -tenant. The foregoing provisions of this Article XVII shall also not be applicable to transfers of Units from a trustee to its beneficiary or from a beneficiary to his trustee. 17.13. No judicial sale of a Unit or any interest therein shall be valid unless: 17.13.1. The sale is to a purchaser approved by the Association, which approval shall be in recordable form; or 17.13.2. The sale is the result of a public sale with open bidding subject to Affordability Restrictions. 17.14. The Board of Directors of the Association shall have the right to withhold consent and approval of any prospective lease, sale, transfer, conveyance, bequest, devise or otherwise in the event the prospective Unit Owner or lessee, by being such a Unit Owner or lessee would automatically violate or breach a term, condition, restriction, rule or regulation or covenant under this Declaration or the Exhibits thereto. 17.15. The Association and its Board of Directors agents or employees, shall not be liable to any person whomsoever for the approving or disapproving of any person pursuant to this Article XVII, or for the method or manner of conducting the investigation. The Association and its Board of Directors, agents or employees shall never be required to specify any reason for approval or disapproval. 17.16. The foregoing provisions of this Article XVII shall not be applicable to transfers or purchases by an Institutional Mortgagee (and/or its assignee or nominee) that acquires its title as a result of owning a mortgage upon the Unit concerned, and this shall be so whether the title is acquired by deed from the mortgagor, mortgagor's successors or assigns, or through foreclosure proceedings; nor shall such provisions apply to a transfer or sale by an Institutional Mortgagee (and/or its assignee or nominee) that so acquires its title. Page 31 of 44 17.17. Leases and Lease Restrictions (1) Units may be leased by the Unit Owners; provided, however, that such lease and the rights of any tenant thereunder is hereby made expressly subject to Affordable Restrictions defined in Article II and subject to the power of the Association to prescribe reasonable Rules and Regulations relating to the lease and rental of Units, and to enforce the same directly against such tenant or other occupant by the exercise of such remedies as the Board deems appropriate, including eviction. (2) All leases must be in writing. No lease may be made for a term of less than thirty (30) days. No transient accommodations shall be provided. (3) The Unit Owner shall have the sole and absolute discretion in the leasing of the Unit, except any prospective tenant must meet the moderate or lesser income requirements set forth in applicable sections of the Monroe County Land Development Regulations and any other Affordable Restrictions defined herein and proof of compliance must be provided to the Board of Directors. However, the Unit Owner shall be required to provide notice to the Board of Directors of the Association regarding the leasing of the Unit, which notice shall contain the tenant's name, home address, telephone number and any and all other information which the Board of Directors of the Association may deem necessary, from time to time, to enable the Association to contact the tenant after the expiration of the tenant's occupancy of the Unit (which information shall be used by the Association only as may be necessary when damage or other abuse has occurred with respect to the Unit). All lease agreements entered into between a Unit Owner and a tenant shall contain a provision requiring the tenant and the guests of the tenant to abide by all rules and regulations promulgated by the Association, including one of peaceful enjoyment, and any person refusing or ignoring requests by the Association to keep noise below permitted levels may, subject to applicable law, be summarily evicted and/or ejected from the Unit. Both the Unit Owner and lessee shall be responsible for compliance with the terms of the Condominium Documents notwithstanding the fact that the Unit may have been leased.. Upon entering into the lease, the Unit Owner shall furnish to the Association a fully executed copy of the lease. XVIII. REMEDIES Relief 18.1. Each Unit Owner and the Association shall be governed by and shall comply with the provisions of this Declaration as they may exist from time to time. A violation thereof shall entitle the appropriate parry to institute an action to recover sums due for damages, injunctive relief, foreclosure of lien or any combination thereof, or any other action available pursuant to the Act or law. Suit may be brought by the Association or, if appropriate, by one or more Unit Owners and the prevailing party shall be entitled to recover reasonable attorneys' fees. Page 32 of 44 Each Unit Owner acknowledges that the failure to comply with any of the provisions of this Declaration shall or may constitute an injury to the Association or to other Unit Owners and that such injury may be irreparable. Costs and Attorneys' Fees 18.2. In any proceeding arising because of an alleged default, act, failure to act, or violation by the Unit Owner or the Association, including the enforcement of any lien granted pursuant to this Declaration or its Exhibits, the Association, if it shall be the prevailing parry, shall be entitled to recover the costs of the proceeding, including reasonable attorneys' fees. Further, in the event that proceedings are instituted by or against the Developer or against any affiliated entity of the Developer or against any individual connected with the Developer (including, but not limited to the parent company of the Developer and/or any subsidiary of the Developer and/or the initial directors of the Association) for any reason whatsoever, including but not limited to (i) actions for declaratory judgment, (ii) any claim that any of the above have not complied with their obligations under the Prospectus for this Condominium, this Declaration and its Exhibits, or (iii) that any provision of the same is unconscionable or violates any State or Federal Law or regulation, and if the Developer and/or affiliated companies and individuals connected with the Developer are the prevailing party or parties then, and in that event, they shall be entitled to recover all costs of the proceeding. Said recoverable costs shall include, but are not limited to, reasonable attorney's fees at all levels of the proceeding, including appeals, together with all costs including those not normally allowed in actions at law such as, but not limited to, copies of depositions and other documentation and exhibits, whether or not used at trial; travel expenses for consultants and/or witnesses for the purpose of testifying at trial or deposition; consultants fees; expert witness fees for testifying at trial or deposition, together with such additional fees as the expert witness may charge in connection with his preparation for giving such testimony; and witness subpoenas issued to insure the presence of witnesses at deposition or at trial whether or not the witness shall actually appear or be called upon to testify. No Waiver 18.3. The failure of the Association, the Developer or Unit Owners to enforce any right, provision, covenant or condition created or granted by this Declaration, the Act, the Articles of Incorporation, the By -Laws and/or any rules and regulations adopted with respect to any portion of the Condominium Property, shall not constitute a waiver of the right of said party to enforce such right, provision, covenant or condition in the future. Rights Cumulative 18.4. All rights, remedies and privileges granted to the Association, the Developer and Unit Owners pursuant to the provisions of this Declaration shall be deemed to be cumulative and the exercise of any one or more shall not be deemed Page 33 of44 to constitute an election of remedies, nor shall it preclude the party thus exercising the same from exercising such other and additional rights, remedies or privileges as may be available to such party at law or inequity. Each Unit Owner agrees in any proceeding brought pursuant to the provisions hereof not to plead or defend the same on the theory of "election of remedies". Venue: Waiver of Trial by Jury 18.5 Every Unit Owner and all persons claiming any interest in a Unit do hereby agree that in any suit or proceeding brought pursuant to the provisions of this Declaration and/or pursuant to the provisions of the Act, such suit shall be brought in the Circuit Court of the Twelfth Judicial Circuit, in and for Monroe County, Florida, or in the United States District Court, Southern District of Florida, as the same is now constituted or in any court in the future that may be the successor to the courts contemplated herein. All such parties, except the Developer, do hereby waive the right to trial by jury and consent to a trial by the court without a jury. Appointment of Agent 18.6. Should suit be instituted, each Unit Owner does hereby irrevocably appoint the Secretary of State of the State of Florida as Unit Owner's agent for the acceptance of service of process should, at the time of such service of process, any such person not be residing in the County of Monroe, State of Florida. The provisions hereof shall not be applicable to the Developer. ARTICLE XIX MISCELLANEOUS Intent 19.01. It is the intent of the Developer to create a condominium pursuant to the Act. In the event that the condominium created by this Declaration shall fail in any respect to comply with the Act, then the common law as the same exists on the filing date of this Declaration shall control, and the condominium hereby created shall be governed in accordance with the several laws of the State of Florida, the Bylaws, the Articles, and all other instruments and exhibits attached to or made a part of this Declaration. Covenants, Conditions, and Restrictions 19.02. All provisions of the Condominium Documents shall, to the extent applicable and unless otherwise expressly therein provided to the contrary, be perpetual and be construed to be covenants running with the Land and with every part thereof and interest therein; and all of the provisions of the Condominium Documents shall be binding on and inure to the benefit of any owner of all or any part thereof, or interest therein, and his heirs, executors, administrators, legal Page 34 of 44 representatives, successors, and assigns, but said provisions are not intended to create nor shall they be construed as creating any rights in or for the benefit of the general public. All Unit Owners and Occupants shall be subject to and shall comply with the provisions of the Condominium Documents and any rules and regulations promulgated thereunder. Severability 19.03. The invalidity in whole or in part of any covenant or restriction or any paragraph, subparagraph, sentence, clause, phrase, word, or other provision of this Declaration, the Articles, the Bylaws, any rules and regulations of the Association promulgated pursuant thereto, and any exhibits attached hereto, as the same may be amended from time to time, or the Act, or the invalidity in whole or in part of the application of any such covenant, restriction, paragraph, subparagraph, sentence, clause, phrase, word, or other provision shall not affect the remaining portions thereof. Taxation of Condominium Parcels 19.04. For the purpose of ad valorem taxation, the interest of a Unit Owner in his Unit and in the Common Elements shall be inseparable. In any year in which either or both of such interests are not taxed separately to a Unit Owner, the total value of said interests shall be equal to the product obtained by multiplying the entire value of the Condominium Property for purposes of ad valorem taxation by the decimal equivalent of the share of the Common Elements appurtenant to such Unit. No provision in this Declaration shall be construed as giving any Unit Owner the right of contribution or any right of adjustment against any other Unit Owner on account of any deviation by the taxing authorities from the valuation herein prescribed; each Unit Owner being required to pay ad valorem taxes and special assessments as are separately assessed by governmental authorities against his Condominium Parcel. Notice 19.05. The following provisions shall govern the construction of the Condominium Documents, except as may be specifically provided to the contrary herein: All notices required or desired under the Condominium Documents to be sent to the Association shall be sent certified mail, return receipt requested, to the Secretary of the Association, at 98980 Overseas Highway, Key Largo, FL 33037, or to such other address as the Association may hereafter designate from time to time by notice in writing to all Unit Owners. Except as provided specifically to the contrary in the Act, all notices to any Unit Owner shall be delivered in person or sent by first-class mail to the address of such Unit Owner at the Condominium, or to such other address as he may have designated from time to time, in a writing duly receipted for, to the Association. Proof of such mailing or personal delivery to him by the Association may be provided by the affidavit of the person personally delivering said notice or by a post office certificate of mailing. All notices to the Page 35 of 44 Association or a Unit Owner shall be deemed to have been given when delivered to the addressee in person in accordance with the provisions of this Declaration or when mailed in a postage -paid, sealed envelope, except notices of address changes, which shall be deemed to have been given when received. Governing Law 19.06. Should any dispute or litigation arise between any of the parties whose rights or duties are affected or determined by the Condominium Documents or any rules and regulations adopted pursuant to such documents, such dispute or litigation shall be governed by the laws of the State of Florida. Waiver 19.07. No provisions contained in the Condominium Documents shall be deemed to have been waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches thereof which may occur. Ratification 19.08. Each Unit Owner, by reason of having acquired ownership of his Condominium Parcel, whether by purchase, gift, operation of law, or otherwise, shall be deemed to have acknowledged and agreed that all the provisions of the Condominium Documents and any rules and regulations promulgated thereunder are fair and reasonable in all material respects. Preparation of Declaration 19.09. This declaration was prepared by Patricia Gessel, Esq., whose business address is Patricia Gessel, PL, 99530 Overseas Highway, #2, Key Largo, FL 33037, who is an attorney authorized to practice law in the State of Florida. Captions 19.10. The captions used in the Condominium Documents are inserted solely as a matter of convenience and reference and shall not be relied on and/or used on construing the effect or meaning of any of the text of the Condominium Documents. Assignment 19.11. All rights in favor of the Developer reserved in this Declaration are freely assignable in whole or in part by the Developer and may be exercised by any nominee of the Developer and/or exercised by the successors in interest of the Developer. Page 36 of 44 IN WITNESS WHEREOF, the Developer has executed this Declaration of Condominium this day of ,fit �,Y �s -r-- , 2010. Signed, sealed, and delivered HABITAT FOR HUMANITY OF THE in the presence of: UPPER KEYS, INC. a Florida non-profit corporation. By: Wi ness:� rcz oc,t�fi�rz �r Witness: g STATE OF FLORIDA ) )ss. COUNTY OF MONROE ) The foregoing instrument was acknowledged before me this � day of 2010, by _� p~*z- e , F'1s; Dry7 of Habitat for Humanity of the Upper Keys, Inc., a Florida not for profit, on behalf of the corporation. He is personally known to me or has produced a Florida driver license as identification. PATRICIA GESSEI. * * MY COMMIS" # DD 998536 EXPIRES: June 30, 2014 Bated Thu 8udpet Notary Sff*" Page 37 of 44 CONSENT OF LESSOR WHEREAS, MONROE COUNTY ("the Lessor") is the Lessor of that certain Occupancy Agreement and Ground Lease, dated May 20, 2009, as amended, between Monroe County and Habitat for Humanity of the Upper Keys, Inc., as Lessee, recorded in Official Records Book 2426, Page 355 of the Public Records of Monroe County, Florida (the "Lease"), which concerns the property described herein (the "Property"); and WHEREAS, Habitat for Humanity of the Upper Keys, Inc., a Florida not for profit corporation (the "Developer"), intends to subject a portion of the Property to the terms and provisions of the Declaration of Condominium for Holzman Homes Condominium by recording same in the Public Records of Monroe County, Florida. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, and intending to be legally bound hereby, the Mortgagee agrees and declares as follows: y I. The Lessee hereby consents to the subjection of a portion of the Property uj .. CC O g to all of the provisions, terms and conditions contained in the Declaration. r— 0 2. The Mortgagee hereby subordinates the Lease to the Declaration, except ¢O co for any rights of the Lessor given in the Declaration. �- z Qi 3. Other than as specifically provided herein, this Consent shall not be Dp 0 construed as a limitation on the operation or effect of the Lease nor theUJ consent of the Lessor to any action which may be undertaken by any party Cr to the Declaration, if such action otherwise would require the approval of aa.. p <- the Lessor pursuant to the terms of the Lease. g Witness Witness STATE OF FLORIDA COUNTY OF MONROE MONROE COUNTY By: Mayor Sy via J. rp y ATTEST: By - Deputy Clerk The foregoing instrument was acknowledged before me this day of 2010, by as Of Monroe County, who is personally known to me or has provided a Florida driver's license as identification. Notary Page 38 of 44 2 cc 0 g m a EXHIBIT "A" LEGAL DESCRIPTION Page 39 of 44 EXHIBIT A LEGAL DESCRIPTION CUT OUT PARCEL DESCRIPTION A portion of Lot 1B, HARBOR SHORES, according to the Plat thereof, as recorded In Plat Book 3, at Page 56 of the Public Records of Monroe County, Florid TOGETHER WITH: A portion of Lot 12 in Section 32, Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded in Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, and being more particularly described as follows: Commencing at the Southwest corner of said Lot 12, run S8°49'10"E. along the South line of said Lot 12 for a distance of 12.35 feet to a point on the Northwesterly right of way line of Old State Road 4-A; thence run N.43°30'00"E. along the Northwesterly right of way line of Old State Road 4-A for a distance of 47.01 feet to the POINT OF BEGINNING of the parcel hereinafter described; Thence run N.46°33' 14"W. for a distance of 129.06 feet to a point on the Northwesterly line of said Lot I and the Southeasterly right of way Line of U.S. Highway No, 1; thence run N.43°30'00"E. along the Northwesterly Line of said Lot I and the Southeasterly right of way line of U.S. Highway No. 1 for a distance of 110.94 feet; thence run S.45°38'27"E. for a distance of 129.07 feet to a point on the Northwesterly right of way line of Old State Road 4-A; thence run S.43°30'00"W. along the Northwesterly right of way line of Old State Road 4-A for a distance of 108.89 feet back to the POINT OF BEGINNING. Containing 14,185.8 square feet, more or less. DESCRIPTION OF UNITS INCLUDED IN LEGAL ABOVE: UNIT 1 A portion of Lot 1B, HARBOR SHORES, according to the Plat thereof, as recorded in Plat Book 3, at Page 56 of the Public Records of Monroe County, Florida and a portion of Lot 12 in Section 32, Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded in Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, being more particularly described as follows: COMMENCING at the intersection formed by the East line of said Lot I with the West line of said Lot 12 and the Southeasterly right of way line of U.S. Highway No. 1; thence run S.43°30'00"W. along the Southeasterly right of way line of U.S. Highway No. 1 and the Northwesterly line of said Lot I for a distance of 20.03 feet; thence run 5.46°30'00"E. for a distance of 18.63 feet to the most Westerly corner of Unit 1 and the POINT of BEGINNING of the Unit hereinafter described; thence run N.43°32' 10"E. along the Northwesterly wall of Unit 1 for a distance of 56.58 feet to the most Northerly comer of Unit 1; thence run 5.46°27'50'E. along the wall of Unit 1 for a distance of 14.36 feet to the most easterly corner of Unit 1; thence run S.43°32'38'W. along the wall of Unit 1 and the party wall between Units 1 and 2 for a distance of 56.59 feet to the most Southerly comer of Unit 1; thence run N.46°24'52"W. along the wall of Unit 1 for a distance of 14.35 feet back to the POINT OF BEGINNING. Containing 812.3 square feet, more or less. UNIT 2 A portion of Lot 12 in Section 32, Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded in Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, and being more particularly described as follows: COMMENCING at the intersection formed by the East line of Lot 1B, HARBOR SHORES, according to the Plat thereof as recorded in Plat Book 3 at Page 56 of the Public Records of Monroe County, Florida, with the West line of said Lot 12 and the Southeasterly right of way line of U.S. Highway No. 1; thence run 5.43°30'00"W. along the Southeasterly right of way line of U.S. Highway No. 1 and the Northwesterly Line of said Lot I For a distance of 20.03 feet; thence run S.46'30'00"E. for a distance of 18.63 feet to the most westerly corner of Unit 1 thence run 5.46°24'52"E. along the wall of Unit 1 for a distance of 14.35 feet to the most Southerly comer of Unit 1; thence run N.43°32'38"E. along the wall of Unit 1 for a distance of 10.93 feet to the most westerly comer of Unit 2 and the POINT OF BEGINNING of the Unit hereinafter described; Thence continue N.43°32'38"E. along the party wall between Units 1 and 2 and the wall line of Unit 1 for a distance of 35.26 feet to the edge of a wood porch; thence run 5.46°32' 19"E. along the edge of said wood porch for a distance of 12.15 feet; thence run 5.43°32' 10"W. along the edge of said wood porch for a distance of 8.10 feet to a point: on the Northeasterly wall of said Unit 2; thence run 5.46°32' 19"E. along the wall of Unit 2 for a distance of 8.88 feet to the party wall between Units 2 and 3; thence run S.43°27'41"W. along the party wall between Units 2 and 3 for a distance of 27.17 feet; thence run N.46°31'27"W. along the wall of Unit 2 for a distance of 21.07 feet back to the POINT OF BEGINNING. Containing 670.2 square feet, more or Less. UNIT 3 A portion of Lot 12, in Section 32 Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded in Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, and being more particularly described as follows: COMMENCING at the intersection formed by the East Line of Lot 1B, HARBOR SHORES, according to the Plat thereof, as recorded in Plat Book 3, at Page 56 of the Public Records of Monroe County, Florida, with the West line of said Lot 12 and the Southeasterly right of way line of U.S. Highway No, 1; thence run 5.43°30'00"W. along the Southeasterly right of way Line of U.S. Highway No. 1 and the Northwesterly Line of said Lot 1 B for a distance of 20.03 feet; thence run S.46°30'00"E. for a distance of 18.63 feet to the most Westerly corner of Unit 1; thence run S.46°24'52"E. along the wall of Unit 1 for a distance of 14.35 feet to the most Southerly corner of Unit 1; thence run N.43°32'38'E, along the wall of Unit 1 for a distance of 10.93 feet to the most Westerly corner of Unit 2; thence run S.46°31'27"E along the wall of Unit 2 for a distance of 21.07 feet to the Westerly corner of Unit 3 and the POINT OF BEGINNING of the Unit hereinafter described; thence run N.43°27'41 "E. along the party wall between Units 2 and 3 for a distance of 27.17 feet thence run S.46°32' 19"E. along the wall, of Unit 3 for a distance of 4.77 feet to the edge of a wood porch; thence run N.43°27'41 "E. along the edge of wood porch for a distance of 8.10 feet thence run S.46°32' 19"E. along the edge of wood porch for a distance of 12.42 feet; thence run S.43°2741"W. along the edge of wood porch for a distance, of 8.10 feet to a point on the wall of Unit 3; thence run S.46°32' 19"E. along the wall of Unit 3 for a distance of 3.83 feet to the party wall between Units 3 and 4; thence run S,43°27'41"W. along the parry wall between Units 3 and 4 for a distance of27.18 feet; thence run N.46°31'27"W. along the wall of Unit 3 for a distance of 21.03 feet back to the POINT OF BEGINNING. Containing 672.0 square feet, more or Less. UNIT 4 A portion of Lot 12, in Section 32, Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded in Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, and being more particularly described as follows: COMMENCING at the intersection formed by the East line of Lot 1B, HARBOR SHORES, according to the Plat thereof, as recorded in Plat Book 3, at Page 56 of the Public Records of Monroe County, Florida, and the West line of said Lot 12 and the Southeasterly right of way line of U.S. Highway No. 1; thence run S.43°30'00"W. along the Southeasterly right of way line of U.S. Highway No. 1 and the Northwesterly line of said Lot I for a distance of 20.03 feet; thence run S.46°30'00"E. for a distance of 18.63 feet to the most Westerly corner of Unit 1; thence run S.46°24'52"E. along the wall of Unit 1 for a distance of 14.35 feet to the most Southerly corner of Unit 1; thence run N.43°32'38"E. along the wall of Unit 1 for a distance of 10.93 feet to the most Westerly corner of Unit 2; thence run S46°31'27"E. along the wall of Units 2 and 3 for a distance of 42.10 feet to the most Westerly corner of Unit 4 and the POINT OF BEGINNING of the Unit hereinafter described; thence run N.43°27'41"E along the parry wall between Units 3 and 4 for a distance of 27.18 feet thence run S.46°32' 19"E. along the wall of Unit 4 for a distance of 9.05 feet to the edge of a wood porch; thence run N.43°32'57"E. along the edge of wood porch for a distance of 8.15 feet; thence run S.46°32'19"E. along the edge of wood porch for a distance of 12.10 feet to a point on the Northwesterly wall of Unit 5; thence run S.43°37'56"W. along the wall of Unit 5 and the party wall between Units 4 and 5 for a distance of35.33 feet thence run N.46°31'27"W. along the wall of Unit 4 for a distance of 21.06 feet, back to the POINT OF BEGINNING. Containing 672.2 square feet, more or less. UNIT 5 A portion of Lot 12, in Section 32, Township 61 South, Range 39 East, according to MODEL LAND COMPANY PLAT, recorded In Plat Book 1, at Page 68 of the Public Records of Monroe County, Florida, and being more particularly described as follows: COMMENCING at the Intersection formed by the East line of Lot 1B, HARBOR SHORES, according to the Plat thereof as recorded in Plat Book 3 at Page 56 of the Public Records of Monroe County, Florida and the west line of said Lot 12 and the Southeasterly right of way line of U.S. Highway No, 1, thence run 5.43°30'00"W. along the Southeasterly right of way line of U.S. Highway No. 1 and the Northwesterly line of said Lot 1B for a distance of 20.03 feet; thence run 5.46°30'00"E. for a distance of 18.63 feet to the most Westerly comer of Unit 1; thence run 5.46°24'52"E. along the wall of Unit 1 for a distance of 14.35 feet; thence run N.43°32'38"E. along the wall of Unit 1 for a distance of 10.93 feet to the most Westerly comer of Unit 2; thence run S.46°31'27"E. along the wall of Units 2, 3 and 4 for a distance of 63.16 feet to a point on the Northwesterly wall of Unit 5 and the POINT OF BEGINNING of the Unit hereinafter described; thence run N.43°37'56"E. along the parry wall between Units 4 and 5 and the Northwesterly wall of Unit 5 for a distance of 45.44 feet; thence run S.46°27'03"E. along the wall of Unit 5 for a distance of 14.34 feet; thence run 5.43°32'57"W. along the wall of Unit 5 for a distance of 56.38 feet; thence run N.46°25'05"W. along the wall of Unit 5 for a distance of 14.39 feet; thence run N.43°37'56"E. along the wall of Unit 5 for a distance of 10.93 feet, back to the POINT OF BEGINNING. Containing 809.8 square feet, more or less. INGRESS / EGRESS EASEMENT An easement for the purpose of ingress and egress over a portion of Lot 1B. HARBOR SHORES, according to the Plat thereof, as recorded in Plat Book 3, at Page 56 of the Public Records of Monroe County, Florida, and being more particularly described as follows: COMMENCING at the intersection formed by the Southeasterly right of way line of U.S. Highway No. 1 with the Northwesterly extension of the Southwesterly line of said Lot 1B; thence run 5.46°30'00"E along the Northwesterly extension thereof and along the Southwesterly line of said Lot 113 for a distance of 62.29 feet to the POINT OF BEGINNING of the Centerline of a 20 foot wide ingress / egress easement; from said POINT OF BEGINNING run along the Centerline of said 20 foot wide easement for the following; N.43°30'00"E. for 15.00 feet; thence 5.46°30'00'E. for 46.77 feet and N.43°30'00"E. for 79.07 feet to the POINT OF TERMINUS and end of said easement centerline containing 2,816.9 square feet, more or Less. EXHIBIT "B" SURVEY, SITE PLAN Page 40 of 44 i�L 4u. m P 6' OA 14 wow i ttoa -t L AA ��ij'rGC N q jj; 4DFi1tt: tn8+m�m-mo+mvmm ro 6 51TE FLAN Kts EnpF zsig Savoy wryer L. U-bm% P.E. HABITAT FOR HUMANITY .�.; ::.... R I R L 4 gaws Its R i s a N pQ� gSig p$$ �`>>� ,_ Gy = m �'^ 3 6,;-N vim+ :, o� ,.,� O� �m n �e�i?—.yi ii � --?5. � ^°'a Z Mv m 3S �m v < w � O : 8 a _ _ U Ca m CM � pN ��° T� crM� NQr h m}r f 3let orb lea g� yyt m py� vD 7 'p Wm �n -i juls �. Q,m vA O Si 8 O v O � 1 uu r. A 16 ax I �. � x I ��ccc�ccc ��OOzz z zz ta Fj�av�aw N xs ti y VJ lA l7 (pmM R N w O O 9 D D D D D 4 Y 3. i t ti n n A a u ca co IRA g ! r # I r $$ 9 _- O 0 ((( e W ¢ y 4 C � T � $0 p � ' to N a3 3 � n 0 n�.R I aK IO � - u •lid _ ... S —.� now =J a i g� 1 fir ar .are..N 3 iyirco m. Jc�i mCl Tt� -nID g A� A wm�m �itna � �d N o^)i rip � v 3 3 O aS M �nW coaaNON 07 (D a ae {'4—'I I t � _13UUaa}} lot jai b v' �1Y-101/4' 12'-31/4- a -11/2' 10'-0' Y-r 4 pL nrCL < z T��y mazo. < 3� v S W 2 2 ppMu cr < 09 wA ODrN D __. F cD O f 1 EXHIBIT "C" SHARE OF COMMON EXPENSES, COMMON ELEMENTS AND COMMON SURPLUS Unit Owner's share of Common Expenses, Common Elements and Common Surplus: Unit 1-23% Unit 2-18% Unit 3 —18% Unit 4-18% Unit 5 - 23% Page 41 of 44 EXHIBIT "D" ARTICLES OF INCORPORATION OF HOLZMAN HOMES CONDOMINIUM ASSOCIATION a Florida not for profit corporation Page 42 of 44 ARTICLES OF INCORPORATION of HOLZMAN HOMES CONDOMINIUM ASSOCIATION, INC. (Florida Not for Profit Corporation) The corporation is organized under the laws of the State of Florida, by and under the provisions of said State providing for the formation, liabilities, rights and privileges and immunities of a corporation not for profit. We, the undersigned incorporators of this corporation in compliance with Chapter 617 of the Florida Statutes, as amended, adopt the following Articles of Incorporation. ARTICLE I NAME The name of the corporation shall be: Holzman Homes Condominium Association, Inc. ARTICLE H PRINCIPAL OFFICE The principal place of business and mailing address of this corporation shall be: 98980 Overseas Highway Key Largo, FL 33037 ARTICLE III PURPOSE This corporation is organized exclusively for the purposes described in the Declaration of Condominium of Holzman Homes Condominium to be recorded in the Public Records of Monroe County, Florida as may be amended from time to time. ARTICLE IV MANNER OF ELECTION The first Board of Directors shall be appointed and shall serve until the first annual meeting, at which time their successors are duly elected and qualified, or removed as provided in the bylaws. Pagel of 3 ARTICLE V INITIAL DIRECTORS The number of Directors constituting the first Board of Directors is three, their names and addresses being as follows: ARTICLE VI DURATION The duration of the corporate existence shall be perpetual. ARTICLE VII PERSONAL LIABILITY No member, officer, or Director of this corporation shall be personally liable for the debts or obligations of this corporation of any nature whatsoever, nor shall any of the property of the members, officers, or Directors be subject to the payment of the debts or obligations of this corporation. Page 2 of 3 ARTICLE VIII INITIAL REGISTERED AGENT AND STREET ADDRESS The name and Florida street address of the registered agent is: Habitat for Humanity of the Upper Keys, Inc. 98970 Overseas Highway Key Largo, FL 33037 Having been named as registered agent to accept service of process for the above stated corporation at the place designated in this certificate,. I am familiar with and accept the appointment as registered agent and agree to act in this capacity. i Registered Agent Date ARTICLE XI INCORPORATOR The undersigned incorporator certifies that he has executed these articles for the purposes herein stated. Daniel McAfee - Inco orator Daniel McAfee 98970 Overseas Highway Key Largo, FL 33037 Page 3 of 3 Date EXHIBIT "E" BY LAWS OF HOLZMAN HOMES CONDOMINIUM ASSOCIATION a Florida not for profit corporation Page 43 of 44 BYLAWS OF HOLZMAN HOMES CONDOMINIUM ASSOCIATION, INC. ARTICLE I OFFICES Section 1. PRINCIPAL MAILING ADDRESS. The principal mailing address of the corporation shall be 98980 Overseas Highway, Key Largo, FL 33037. Section 2. OTHER OFFICES. The corporation may also have offices at any other places as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE H MEMBERS Section 1. ANNUAL MEETING. The annual meeting of the Members shall be held between January 1 and December 31, inclusive, in each year for the purpose of electing directors and for the transaction of any other business as may come before the meeting, the exact date to be established by the Board of Directors from time to time. Section 2. SPECIAL MEETINGS. Special meetings of the Members, for any purpose or purposes, may be called by the President, a majority of the Board of Directors, or Members representing at least 30% of the total votes of the corporation entitled to vote, and shall be called by the President or the Secretary at the request in writing of a majority of the Board of Directors then in office. Any call shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of Members shall be limited to the purposes stated in the notice. Section 3. PLACE OF MEETING. The Board of Directors may designate any place, either within or without the State of Florida, as the place of meeting for any annual or special meeting of the Members. A waiver of notice signed by all Members entitled to vote at a meeting may designate any place, either within or without the state of Florida, as the place for the holding of the meeting. If no designation is made, or if a special meeting is otherwise called, the place of meeting shall be the principal office of the corporation in the state of Florida. Section 4. NOTICE OF MEETING. Written notice stating the place, day, and hour of the meeting and the purpose or purposes for which it is called shall be delivered not less than 10 nor more than 60 days before the date of the meeting, either personally or by first-class mail, by or at the direction of the President or the Secretary, to each Member of record entitled to vote at the meeting. If mailed, this notice shall be deemed to be delivered when deposited in the United States mail, addressed to the Member at the Member's address as it appears on the stock transfer books of the corporation, with prepaid postage. Section 5. WAIVER OF CALL AND NOTICE OF MEETING. Call and notice of any Members' meeting may be waived by any Member, and notice of the meeting shall not be Page 1 of 9 required as to any Member who shall attend the meeting in person or by proxy, except when the Member attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 6. QUORUM. Except as otherwise provided in these bylaws or in the articles of incorporation, a majority of the members of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the Members. Section 7. VOTING LISTS. At least 10 days prior to each meeting of Members, the officer or agent having charge of the stock transfer books for shares of the corporation shall compile a complete list of the Members entitled to vote at the meeting, or any adjournment thereof, with the address and the number of shares held by each, which list shall be subject to inspection by any Member during normal business hours for at least 10 days prior to the meeting. The list shall also be produced at the meeting and shall be subject to inspection by any Member during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the Members entitled to examine the list or the transfer books or to vote at any meeting of the Members. Section 8. VOTING. Each Member entitled to vote shall be entitled at every meeting of the Members to one vote in person or by proxy. Section 9. PROXIES. At all meetings of Members, a Member may vote by proxy, executed in writing by the Member or by the Member's duly authorized attorney -in -fact; but, no proxy shall be valid after I 1 months from its date, unless the proxy provides for a longer period. Each proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. In the event that a proxy shall designate two or more persons to act as proxies, a majority of these persons present at the meeting, or, if only one is present, that one, shall have all of the powers conferred by the proxy on all the persons so designated, unless the instrument shall provide otherwise. Section 10. INFORMAL ACTION BY MEMBERS. Unless otherwise provided in the Articles of Incorporation, any action required to be taken at a meeting of the Members, or any other action that may be taken at a meeting of the Members, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by Members holding not less than the minimum number of shares that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. If less than all Members consent, then within 10 days after this action is authorized by written consent, the Members who did not consent must be given written notice of the action taken. Section 11. QUALIFICATIONS OF MEMBERS. The qualification of members, the manner of their admission to membership and termination of such membership, and voting shall be as set forth in the Declaration of Covenants and Restrictions. Page 2 of 9 ARTICLE III BOARD OF DIRECTORS Section 1. GENERAL POWERS. The business and affairs of the corporation shall be managed by its Board of Directors, which may exercise all the powers of the corporation and do all the lawful acts and things as by law, the articles of incorporation, or these bylaws are directed or required to be exercised or done only by the Members. Section 2. NUMBER, TENURE, AND QUALIFICATIONS. The number of directors of the corporation shall be not less than 3 nor more than 5, the number to be fixed by the Members at any annual or special meeting. Each director shall hold office until the next annual meeting of Members and until each director's successor shall have been duly elected and shall have qualified, unless the director sooner dies, resigns, or is removed by the Members at any annual or special meeting. It shall not be necessary for directors to be Members. No minor shall serve as a director. Section 3. ANNUAL MEETING. After each annual meeting of Members, the Board of Directors shall hold its annual meeting at the same place as and immediately following the annual meeting of Members for the purpose of the election of officers and the transaction of other business as may come before the meeting; and, if a majority of the directors are present at the place and time, no prior notice of the meeting shall be required to be given to the directors. The place and time of the meeting may be varied by written consent of all the directors. Section 4. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held without notice at the time and at the place as shall be determined from time to time by the Board of Directors Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or a majority number of directors. The person or persons authorized to call special meetings of the Board of Directors may fix the place for holding any special meetings of the Board of Directors. If no designation is made, the place of meeting shall be the principal office of the corporation in the state of Florida. Section 6. NOTICE. Written notice stating the place, day, and hour of the meeting shall be delivered at least 3 days prior to the meeting to each director, either personally, or by mail, telegram, or cablegram to the director's business address. If notice is given by mail, the notice shall be deemed to be delivered when deposited in the United States mail addressed with prepaid postage. If notice is given by telegram or cablegram, the notice shall be deemed to be delivered when the telegram or cablegram is delivered to the issuing company. Any director may waive notice of any meeting, either before, at, or after the meeting. The attendance of a director at a meeting shall constitute a waiver of notice of the meeting, except when a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Page 3 of 9 Section 7. QUORUM. A majority of the total number of directors as determined from time to time shall constitute a quorum, but a smaller number may adjourn from time to time, without further notice, until a quorum is secured. Section 8. MANNER OF ACTING. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. Section 9. REMOVAL. Provisions herein to the contrary notwithstanding, until the Turnover Date any director appointed by the Developer may be removed, with or without cause, only by the Developer. On and after the Turnover Date, any director may be removed by the vote of a majority of Members at any meeting of the Members called expressly for that purpose whenever in the judgment of the Members the best interests of the corporation will be served by that director's removal, but this removal shall be without prejudice to the contract rights, if any, of the person removed. This bylaw shall not be subject to change by the Board of Directors. Any director elected by the Members who has 3 consecutive unexcused absences, as determined by the Board, from Board meetings or who is delinquent in the payment of any Assessment due to the Association for more than 30 days may be removed by a majority of the directors present at a regular or special meeting at which a forum is present, and a successor may be appointed by the remaining directors. In the event of the death, disability or resignation of a director, the members of the Board may elect a successor to fill the vacancy for the remainder of the term of such director, provided any directors appointed by the Developer will be replaced by the person designated by the Developer. Section 10. VACANCIES. Any vacancy occurring in the Board of Directors, including any vacancy created by reason of an increase in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, unless otherwise provided in the articles of incorporation. A director elected to fill a vacancy shall be elected for the unexpired term of the director's predecessor in office. Section I L PRESUMPTION OF ASSENT. A director of the corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless the director votes against the action or abstains from voting in respect to the matter because of an asserted conflict of interest. Section 12. INFORMAL ACTION BY BOARD. Any action required or permitted to be taken by any provisions of law, the articles of incorporation, or these bylaws at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a written consent is signed by all members of the board or of any committee, as the case may be, and filed in the minutes of the proceedings of the board or the committee, as the case may be. Section 13. MEETING BY TELEPHONE. Directors or the members of any committee thereof shall be deemed present at a meeting of the Board of Directors or of any committee, as the case may be, if the meeting is conducted using a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time. Page 4 of 9 ARTICLE IV OFFICERS Section 1. NUMBER. The officers of the corporation shall consist of a President, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors. The Board of Directors may also elect a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and other officers as the Board of Directors shall deem appropriate. Two or more offices may be held by the same person. Section 2. ELECTION AND TERM OF OFFICE. The officers of the corporation shall be elected annually by the Board of Directors at its annual meeting. If the election of officers shall not be held at the meeting, the election shall be held as soon thereafter as is convenient. Each officer shall hold office until that officer's successor shall have been duly elected and shall have qualified, unless the officer sooner dies, resigns, or is removed by the board. Section 3. REMOVAL. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors whenever, in its judgment, the best interests of the corporation will be served, but the removal shall be without prejudice to the contract rights, if any, of the person removed. Section 4. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification, or otherwise may be filled by the Board of Directors for the unexpired portion of the term. Section 5. DUTIES OF OFFICERS. The Chairman of the board of the corporation, or the President if there shall not be a Chairman; shall preside at all meetings of the Board of Directors and of the Members. The President shail be the chief executive officer of the corporation. Subject to the foregoing, the officers of the corporation shall have powers and duties as ordinarily pertain to their respective offices and any additional powers and duties specifically conferred by law, the articles of incorporation, and these bylaws, or as may be assigned to them from time to time by the Board of Directors. Section 6. SALARIES. COMPENSATION. Neither directors nor officers will receive compensation for their services as such, but this provision will not preclude the Board of Directors from employing a director or officer as an employee or agent of the Association. Directors and officers will be reimbursed for all actual and proper out of pocket expenses relating to the proper discharge of their respective duties. Section 7. DELEGATION OF DUTIES. In the absence or disability of any officer of the corporation, or for any other reason deemed sufficient by the Board of Directors, the board may delegate the powers or duties of the officer to any other officer or to any other director for the time being. Section 8. POWERS OF ACTING OFFICERS. If any officer is unable to perform the duties of his or her office, the powers and duties of that office shall be held and performed by Page 5 of 9 that officer of the corporation highest on the list of successors (adopted by the Board of Directors for this purpose) who shall be available and capable of holding and performing these powers and duties. That acting officer selected shall hold and perform the powers and duties and shall serve in that capacity until the officer again becomes capable of holding and performing the powers and duties of that office or until the Board of Directors shall have elected a new officer or designated another individual as acting officer. Each acting officer so appointed shall be entitled to exercise all powers invested by law, the articles of incorporation, these bylaws, and the Board of Directors in the office in which the person is serving. Anyone transacting business with the corporation may rely on a certificate signed by any two officers of the corporation that a specified individual has succeeded to the powers and duties of the President or any other specified office. Any person, firm, corporation, or other entity to which the certificate has been delivered by these officers may continue to rely on it until notified of a change by means of a writing signed by two officers of this corporation. ARTICLE V INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 1. GENERAL. To the fullest extent permitted by law, the corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, lawsuit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by, or in the right of, the corporation), by reason of the fact that the person is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, lawsuit, or proceeding, including any appeal thereof, if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, lawsuit, or proceeding by judgment, order, settlement, or conviction, or on a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner that the person reasonably believed to be in, or not opposed to, the best interests of the corporation or, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. Section 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. In any action, lawsuit, or proceeding, threatened, pending, or completed, by or in the right of the corporation, indemnification shall be made as provided in Section 1 of this Article V, except that no indemnification shall be made in respect of any claim, issue, or matter as to which the person shall have been adjudged to be liable for negligence or misconduct in the performance of the person's duty to the corporation, unless, and only to the extent that, the court in which the action or lawsuit was brought shall determine on application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses which the court shall deem proper. Page 6 of 9 Section 3. HOW EFFECTED. Indemnification under Section 1 or Section 2 of this Article V, unless under a determination by a court, shall be made by the corporation only as authorized in the specific case by a determination that the indemnification is proper in the circumstances because the indemnified person has met the applicable standard of conduct set forth in Section 1 or Section 2 above. This determination shall be made by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the action, lawsuit, or proceeding to which the indemnification relates or by the Members by a majority vote of a quorum consisting of Members who were not parties to the action, lawsuit, or proceeding to which the indemnification relates. If a director, officer, employee, or agent of the corporation has been successful on the merits or otherwise in defense of any action, lawsuit, or proceeding referred to in Section 1 or Section 2 of this Article V, or in the defense of any claim, issue, or matter therein, the corporation shall be obligated on proper application to indemnify the person in respect of expenses (including attorneys' fees) actually and reasonably incurred by the person in connection therewith. Section 4. PREPAYMENT OF EXPENSES. Expenses (including attorneys' fees) incurred in defending a civil or criminal action, lawsuit, or proceeding may be paid by the corporation in advance of the final disposition of the action, lawsuit, or proceeding on a preliminary determination following one of the procedures set forth in Section 3 of this Article V that the indemnified person meets the applicable standard of conduct referred to therein and after receipt of an undertaking satisfactory in form and substance to the corporation that the person will promptly repay the amount unless it shall ultimately be determined that the person is entitled to be indemnified by the corporation as authorized in this Article V. Section 5. NONEXCLUSIVITY. The indemnification provided by this Article V shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of Members or disinterested directors, or otherwise, both as to action in any official capacity and as to action in any other capacity while holding office with the corporation. The Board of Directors may, at any time, approve indemnification of any other person that the corporation has the power by law to indemnify, including, without limitation, employees and agents of the corporation. The indemnification provided for in this Article V shall continue as to any person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the person's heirs and personal representatives. ARTICLE VI INTERESTED PARTIES Section 1. GENERAL. No contract or other transaction between the corporation and any one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested shall be either void or voidable because of the relationship or interest, because the director or directors were present at the meeting of the Board of Directors or of a committee thereof that authorizes, approves, or ratifies the contract or transaction, or because the director's or directors' votes are counted for this purpose if (a) the fact of the relationship or interest is disclosed or known to the Board of Directors or committee that authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of the interested Page 7 of 9 directors; (b) the fact of the relationship or interest is disclosed or known to the Members entitled to vote on the matter, and they authorize, approve, or ratify the contract or transaction by vote or written consent; or (c) the contract or transaction is fair and reasonable as to the corporation at the time it is authorized by the Board of Directors, a committee thereof, or the Members. Section 2. DETERMINATION OF QUORUM. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof that authorizes, approves, or ratifies a contract or transaction referred to in Section 1 of Article VI. ARTICLE VII FISCAL YEAR The fiscal year of the corporation shall be the period selected by the Board of Directors as the taxable year of the corporation for federal income tax purposes, unless the board specifically establishes a different fiscal year. ARTICLE VIH SEAL The corporate seal shall have the name of the corporation, the word "SEAL", and the year of the incorporation inscribed thereon, and may be a facsimile, engraved, printed, or impression seal. An impression of this seal appears on the margin of this article. (SEAL) ARTICLE IX AMENDMENTS Prior to the Turnover Date, the Developer's appointed Board of Directors alone will have the power in its sole and absolute discretion to amend these bylaws. On and after the Turnover Date, amendments to these bylaws will require the affirmative vote of members casting at least 60% of the total votes of the Members. Notwithstanding the foregoing, until the Developer has sold, transferred or conveyed at least 80% of the total number of Residences within the Community, any amendment to the bylaws will require the consent of the Developer. No amendment may remove revoke or modify any right or privilege of the Developer without the written consent of the Developer or the assignee of its sole and absolute discretion, the Board of Directors such right or privilege. Page 8 of 9 WITNESSETH, these bylaws were duly adopted by the Board of Directors of Holzman Homes Condominium Association, Inc. on Auc, Rio , 2010. _�jer,- iRECTOR J'F DIRECTORV*-a0-rt DIRE RusS�u y,E� Page 9 of 9 EXHIBIT "F" RULES AND REGULATIONS OF HOLZMAN HOMES CONDOMINIUM Page 44 of 44 RULES AND REGULATIONS of HOLZMAN HOMES CONDONMWUM 1. Nuisances. No noxious, offensive or unlawful activity shall be carried on or within�ts or Property, nor shall anything be done which may be or may become an annoyance or nuisance to other Owners. 2. Si a e. No sign of any kind shall be permitted on the Common Areas or any Resi entia nit including, without limitation, any sign indicating that a Residential Unit is for sale or lease. Notwithstandingg such prohibition, "no in parking", restricted parking, speed or directional signs, for lease or for sale signs, shall be permitted at the discretion of the Association. All permitted signs shall, s all respects, be in accordance with the Rules and Regulations promulgated al the Association. 3. Parkin and Vehicular Restrictions. Parkin in the Common Areas shall be restricte tot e par mg areas t erem esignated for such purpose. Except for temporary purposes in order to service Residential Units or the Common Areas, no person shall park, store or keep on any portion of the Common Area any commercial e vehicle (for example, dump truck, cement mixer, oil or gas truck, delivery trucks), nor may any person keep any other vehicle on the Common Area which is deemed to be a nuisance by the Board. No person shall conduct repairs (exce t in an emergency) or restorations of any motor vehicle. All vehicles shall be subject to height, width and length restrictions and other Rules and Regulations now or hereinafter adopted by the Association. 4. Animal Restrictions. No livestock, reptiles or poultry of any kind shall be raised, br or ept on or within the Units or Property. Pets shall be prohibited from all portions of the Common Areas except where designated by the Association. All pets in the Common Areas must be controlled by Owners on a leash not to exceed six feet in length and in strict accordance with the Rules and Regulations to be enacted from time to time. Pets shall be limited to 2 per Unit. Each pet shall not exceed 25 pounds. 5. Garba eland _Refuse. No portion of the Units or Property shall be used or maintaine3—as a dumping ground for rubbish. Trash and garbage shall not be kept except in sanitary containers or as required by the Association or the applicable government ordinances. All equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. t�anla ieeshacdAscharaera, h installed or used in the Common playhouse or similar structure shall Areas salbe ermitt . No change structure alteration thereof bemade, tructures. No structure of a tempora or o er outbuildin shall be buil7 at any time. No pla orm, doghouse, nstructed in any part of the Common al ?f the Association. No outdoor Lg, ence, screened enclosure, wall or med, nor shall any exterior addition, approved by the Association. 7. Other Facilities. Nothing shall be altered or constructed in or removed from the Units or ommon Areas except upon written consent of the Committee. 8. Outside Installation. To the extent permitted by law and as otherwise approved by t e oar , no exterior radio antenna, television antenna or other antenna of any shape shall be erected or maintained in the buildings or elsewhere on the Common Areas. This Declaration may grant and hereby reserves an easement for the installation of such antenna. The erection of any such antenna shall be subject to restrictions of record as amended from time to time. 9 Insurance Rates. Nothing shall be done or kept in the Common Areas which will increase the rate of insurance on any properties insured by the Association without the approval of the Board, nor shall anything be done or kept in Units or on the Common Areas which would result in a cancellation of insurance on any property insured by the Association or which would be in violation of any law. In the event that an Owner does anything to increase the rate of insurance said Owner shall be responsible for payment of the increased amount as a Special Individual Assessment in accordance with the terms hereof. 10. Maintenance of Pro e . No weeds, underbrush, or other unsightly growth shaTrTe permitte o grow or remain upon the Property and no refuse or unsightly objects shall be allowed to be placed or suffered to remain upon the Property. 11 Maintenance h the Owner. The responsibility of each Owner to keep his Unit in compliance with Stan ar s promulgated by the Association or the Board shall be as follows: S A. To maintain, protect, repair and replace, at his own cost and expense, all portions of his Residential Unit together with all improvements and equipment located thereon, except for any portions to be maintained, repaired and replaced by the Association. Such maintenance, protection, repair and replacement shall be done without disturbing the rights of the other Owners; B. Not to modify or change the appearance or design of any portion of the exterior of any Unit without the prior written approval of the Association; report nppto the Association any ect or need frepairs,maintenance or replacements fowhiche Association is responsible; D. To take reasonably appropriate actions to secure and protect his Unit in the event a hurricane, tropical storm or other windstorm event threatens the Florida Keys, includ ng, but not limited to removing all personal property from porches and making provision for storm panels, shutters or other appropriate coverings on all windows and exterior doors. 11. Exterior Lighting No Owner shall install any exterior lighting (in addition to suc exterior igniting as originally provided for the Unit) without the Association's prior written approval. 12. installed byNduring fences construction ll be permitted or lasmotherwthe isem approved a bynithe Association. 13. Laundry. No deck, porch or other exterior portion of a Unit shall be used for the purpose of drying laundry or other items.