11/14/2007
This instrument prepared by:
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The Craig Company
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P"O Box 970
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610 White Street
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Key West, Florida 33040
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Parcel LD" Nos":
Ocean Sunrise Associates LLC
FUE# s 00554420,00554730,00554740,00554700,
and 00554670, 00554940-000300
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8
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II DEVELOPMENT AGREEMENT FOR
12 MANDALA Y BAY DEVELOPMENT
13 (AKA OCEAN SUNRISE ASSOCIATES. LLc)
14 THIS AGREEMENT is entered into by and between Ocean Sunrise Associates LLC, a
15 Florida Limited Liability Corporation (herein, the "Owner"), and Monroe County, a division
16 of the state of Florida (herein, the "County"), pursuant to Sections 95-101 and 9.5- 102 of the
17 County Code, and the Florida Local Government Development Agreement Act, Sections
18 1633220-1633243, Florida Statutes (2004), and is binding on the "Effective Date" set forth
19 herein"
20 WITNESSETH:
21 WHIEREAS, Owner is the owner of approximately 3.29 acres of contiguous uplands
22 plus 0.68 acres submerged land in the corporate limits of the County, now known as Mandalay
23 Resort at Mile Marker 98, Lots 1 and 2, Parcels 1 and 2, Block 4, Mandalay Subdivision, Key
24 Largo, more particularly described in the legal description attached hereto as Exhibit A (herein,
25 the "Property"); and
26 WHEREAS, the County has recognized that there are, existent on the Property, eleven
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(II) transient ROGO exemptions due to the fact that the County identified that there were eleven
2 (II) licensed recreational vehicles onsite used for transient purposes; and that only three (3) of
3 these units may be used on the property in combination with the proposed twenty-two (22)
4 residential units and proposed restaurant due to the size of the property; and
5 WHJ8:REAS, the Owner relied upon the directions given to it by the County as to the
6 sequence of its applications and submissions for development; and
7 WHEREAS, the Owner has timely filed its applications for development in accordance
8 with those directions prior to the approval of the Inclusionary Housing ordinance; and
9 Wm~REAS, the County and the Owner agree that the Owner has offered the County the
10 eight (8) unused transient ROGO exemption rights to be used for affordable housing applications .
11 and be assigned unique, numeric identifiers for each, pursuant to the appropriate transfer
12 procedure as identified by the County, to be subsequently sponsored by the County at no
13 additional cost to Owner; and
14 WHEREAS, the Owner has leased from the County a portion of Second Avenue
15 adjacent to the property and more specifically described as the easterly ten (10) feet of Second
16 Avenue, Mandalay Subdivision, Key Largo, adjacent to Lot I, Block 4, Plat Book 1-194; and
17 WHEREAS, the Property is currently vacated of residential structures and remains
18 developed with the existing restaurant, commercial and accessory uses including docks, as
19 further described in Section C 3.a of this Agreement; and
20 WHEREAS, redevelopment of the Property provides the opportunity to upgrade the
21 existing facilities, voluntarily contribute to the provision of affordable housing, upgrade and
22 enhance the existing transient facility and amenities, provide on-site wastewater
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treatment that meets 2010 standards, either by advanced wastewater treatment (A WT) or
2 connection to the Key Largo Wastewater Treatment District if available at the time of permit,
3 meet current stormwater retention standards to contribute to the protection of the nearshore
4 waters in the County, assure the improvement of facilities for public access to the waterfront of
5 the Atlantic Ocean, and provide additional benefits to the County as set forth in this Agreement;
6 and
7 wm~REAS, Owner desires to create a residential development on the Property with the
8 facilities, amenities and infrastructure as set forth in this Agreement; and
9 WHEREAS, The County Board of County Commissioners, per Resolution 603-2006,
10 and 604-2006, has approved a request by the Owner to abandon a portion of East First Street and
11 East Second Street adjacent to the Property to allow the rational redevelopment of the Property,
12 and
13 WHEREAS, the proposed redevelopment is permissible and appropriate under the
14 County's Comprehensive Plan Future Land Use designation applicable to the Property, which
15 allows mixed use development along with various types of residential and nonresidential uses;
16 and
17 WHEREAS, the Property is a highly disturbed, fully developed upland site which does
18 not contain wetlands, listed species habitat, or other environmentally sensitive habitat with
19 the exception of existing mangroves that are protected under State law; and
20 WHEREAS, the Owner has provided public notice of the parties' intent to consider
21 entering into this Agreement by publishing an advertisement in a newspaper of general circulation
22 and readershi:p in the County, and provision made for posting of the Property subject to this
23 Agreement, and mailing notices to the persons and entities shown on the most recent Monroe
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County Tax Roll to be the owner of property lying within three hundred (300) feet of the
2 boundaries of the Property subject to this Agreement; and
3 WHEREAS, the County Planning Commission has held a public hearing on October 24,
4 2007, to consider this Agreement, and the Monroe County Board of County Commissioners
5 has held a public hearing on November 14, 2007, to consider this Agreement; and
6 WHEREAS, the County has determined that this Agreement is in the public interest and
7 will further the health, safety, welfare, of the residents of the County of Monroe.
8 NOW, THEREFORE, in consideration of the mutual promises and undertakings contained
9 herein, the receipt and silfficiency of which are hereby acknowledged, the parties agree as
10 follows:
II A. RECITALS. The recitals set forth in the preceding "Whereas" clauses are incorporated
12 herein and form a material part of this Agreement.
13 B. DEFINITIONS. For the purposes of this Agreement, the following terms shall have the
14 following meanings. Terms not defined in this agreement shall be as defined in the
15 County Code, in Chapter 163, Florida Statutes, or, if not defined in the Code or Statute,
16 shall be understood by their usual and customary meaning.
17
1.
"Agrllement" shall refer to this Development Agreement, as the same may be
18 subsequently amended, modified or supplemented pursuant to its terms and provIsIons and
19 pursuant to the provisions of Sections 163.3220-163.3243, inclusive, Florida Statutes.
20 2. "County Code" shall refer to the Code of Ordinances of the County of Monroe III
21 existence on the Effective Date of this Agreement.
22 3.
"Comprehensive
Plan"
shall refer to
the County's
Comprehensive
23 effective as of the date of this Agreement.
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4. "Conceptual Site Plan" shall mean the site plan document attached to this Agreement
2 which portrays the intensities, densities and general location of the development expected and
3 proposed on the Property.
4 5.
"Development" shall refer to the redevelopment of the Property for the uses permitted by
5 this Agreement, subject to the conditions, obligations, restrictions and terms contained herein.
6 6.
"Dwl,lling, Apartment" shall refer to the dwelling unit type defined in Section 9.5-4 (D-
7 24) of the County Code.
8 7.
"Dwdling Unit" shall refer to a dwelling unit as defined in Section 9.5-4 (D-31) of the
9 County Code.
10 8.
"Effective Date" shall refer to the date this Agreement becomes effective, as set forth in
11 this Agreement.
12 9.
"Final Site Plan" shall mean that site plan which is approved in connection with and part
13 of the Major Conditional Use application approved by the Monroe County Planning Commission
14 for the Property.
15
10.
"Floriida Department of Community Affairs" (FDCA) and "state land planning
16 agency" shall mean and refer to the "state land planning agency" as defined in Chapter 163, Part
17 II, Florida Statutes.
18
II.
"Land
Development
Regulations"
(LDRs )
shall
mean
Chapter
19 9.5 of the County Code in existence on the Effective Date of this Agreement.
20
12.
"Ownler" shall refer to the owner of the Property identified m the
21 first paragraph of this Agreement.
22
13.
"Prop1erty" shall refer to the parcel of real property located in the County that is the
23 subject of this Agreement as described on Exhibit A attached hereto and made a part hereof.
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14.
"Public
facilities"
those
facilities
identified
means
III
Section
2 163.3221, Florida Statutes (2004), as well as Sections 9.5-293, 9.5-294, 9.5-326 of the County
3 Code of Ordinances and as set forth in this Agreement.
4 15.
"Res:idential Rate of Growth Ordinance" or "ROGO Allocation" shall be as those
5 terms are defined in Chapter 9.5-120 of County Code of Ordinances.
6 16.
"Mandalay Bay Development" means the Development as a whole, to include: the three
7 (3) transient units, twenty-two (22) market rate residential units, restaurant facility, accessory boat
8 slips, other al~cessory uses and amenities, and all other uses and structures.
9 17.
" ROGO Exemptions" means the right to build two (2) market rate residential units not
10 subject to th.: County's Rate of Growth Ordinance (ROGO) and allocated to adjacent property,
11 which rights are owned or controlled by the Owner, who has full authority to transfer these
12 rights.
13 18.
"Site Plan" means both the Conceptual Site Plan dated July 31, 2007, and/or the Final
14 Site Plan with a date to be determined, as appropriate.
15 19.
"Transient" means the use of a unit for a consecutive tenancy of
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28 days or less as defined by Florida Statutes and further defined by Section 9.5-4(T-4) of the
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Monroe County Code of Ordinances.
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19
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C. TERMS OF AGREEMENT.
1. Legal Description; Ownership and Equitable Interests in the Property. The legal
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description of the Property subject to this Agreement is attached hereto as Exhibit "A" and
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incorporated herein by reference. The owner of the Property as of the date of execution of this
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Agreement is the Owner. There are no other legal or equitable owners of the Property known to
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the parties to this Agreement.
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2. Duration of Agreement, Agreement Renewal. This Agreement shall remain in effect
2 for an initiall period of ten (10) years, commencing on the Effective Date set forth below. This
3 Agreement may be renewed or extended as provided by law.
4 3.
Reservations or Dedications of Land for Public Purposes. The parties agree that the
5 owner will dedicate to the County parcel(s) ofland located in the median of US Highway 1- The
6 Overseas Highway - nearby to the property, as further described in the attached survey, Exhibit C,
7 for the sole purpose of open space or non- structural recreational use by the County. The transfer
8 of the property to the County shall be completed within one hundred eighty (180) days of the
9 effective date of this agreement.
IO 4.
Dedil:ation of Market Rate and Transient Residential ROGO Exemptions. The
11 Owner has full authority through ownership or control, to transfer the two (2) market rate ROGO
12 exemptions that were authorized by the County to be used at the Mariner's Club development,
13 proximate to the property. Said market rate ROGO exemptious were authorized by County Major
14 Conditional Use Resolution 30-1980, and re-authorized by Planning Commission Resolution P82-
15 02. The Owner shall dedicate said market rate ROGO exemptions to the County for construction
16 of affordable housing, administrative relief as defined by Monroe County Code, or any other
17 lawful purpose. The Owner has the full authority through ownership or control, to transfer the
18 eight (8) transient residential ROGO exemptions that were recognized by the County as lawfully
19 established units by the County in its Letter of Understanding dated May, 2006. The owner shall
20 dedicate said transient residential ROGO exemptions to the County for construction of affordable
21 housing as defined by Monroe County Code.
22 5.
Other Improvements for Public Use. The Owner and the County have previously agreed
23 that the Owner shall improve and maintain Second A venue from its northern intersection with the
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northbound lanes of US Highway 1 to its southern terminus at the mean high waters of the
2 Atlantic Ocean. The improvements to be constructed by the Owner shall be:
3 a) Street paving
4 b) Twelve (12) parking spaces for public use
c) Parking for nine (9) spaces limited to use by the patrons of the restaurant on the property,
wherein such parking spaces shall be identified by signage approved by the County
limiting their use for restaurant patrons.
d) Landscaping, project identification signage and lighting to at least County standards for
such local streets as Second Avenue.
e) Reconstruction of the existing accessway at the terminus of Second Avenue to County
standards for public use as an accessway described above. However, the reconstruction
shall not cause the removal of restaurant facilities located on the County right-of-way for
which the owner has a license from the County for such use.
f) Utility infrastructure inclusive of water lines, fire hydrants, sewer collection lines, storm
sewer lines, electricity and lighting.
g) Appropriate signage limiting parking as required by the County. The Owner and the
County agree that the County shall grant to the Owner easements and necessary
agreements to allow the owner to maintain the improvements named above on a regular
basis at no cost to the County. The right to use the nine (9) parking spaces for the
restaurant shall remain as long as there is a lease agreement with the County, unless the
restaurant is voluntarily removed from the property by the owner or its assigns.
Existing Development; Preparation for Redevelopment.
a) Existing Development. The following residential uses were recognized by Monroe
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County on the Property and have subsequently been demolished: twenty-two (22)
permanent residential units, eleven (II) transient units. The Owner is entitled to the use
of a total of five thousand one hundred and eighty three (5183) square feet of
commercial floor area, of which three thousand seven hundred eighty two square feet
are being retained for restaurant use, a twelve (12) slip accessory docking
6 facility and other amenities.
7 b) Redevelopment Preparation. The Property will be prepared for redevelopment by
permitted demolition and appropriate removal of certain existing structures.
Plan Approval, Including Densities and Intensities.
Appmval of Conceptual Site Plan; Minor Revisions; Final Site Plan. The Property
shall be redeveloped and operated as a Resort consisting of three (3) transient Resort units,
twenty-two (22) market rate units, together with three thousand seven hundred eighty two
(3782) square feet of restaurant floor area consisting of one thousand seven hundred
eight(:en (1718) square feet of enclosed space and two thousand sixty four (2064) square
feet of open dining area, twelve (12) boat slips depicted on the Conceptual Site Plan for
Mandalay Resort, dated July 31, 2007, which was prepared by Erickson Associates, and is
attached hereto as Exhibit C. The Conceptual Site Plan is subject to further approval by
the County Planning Commission, however said future approvals shall recognize the
aforementioned uses and densities and intensities whether they are used on or offsite; any
subsequent site plans, site plan approvals and building permits shall substantially comply
with this Conceptual Site Plan. The Final Site Plan may modified without further approval
from the Planning Commission, but with staff approval only, to accommodate: (1)
refinements to the site plan submitted for building permit including minor shifts in
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10 a)
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location of five (5) feet or less in the residential structures, roadways, pathways, and
swimming pool configurations; (2) changes to the building type or number of residential
units, so long as the density set forth in this Agreement is not exceeded; or (3)
modifications that are necessary to meet regulatory requirements imposed by any other
governmental entity.
6 b) Form of Ownership. The Property may be redeveloped and operated as a resort,
7 condominium, cooperative, fractional ownership, or similar form of ownership of all or a
8 portion of the properties; and the submission of the properties to the condominium,
9 coopl~rative, or similar form of ownership (and recordation of a corresponding declaration
10 of condominium, fractional, cooperative or similar instrument) or the sale of individual
11 transient residential dwelling units therein shall not be prohibited or in violation of the
12 terms and provisions of this Agreement.
13 c) Exempt Dwelling Units under this Agreement. Pursuant to Section 9.5-120.4(a) of the
14 County Code, the twenty-two (22) market rate units and the three (3) transient residential
15 dwelling units on the Property, together with the unused eight (8) transient units allocated
16 to the: Property and offered to the County but, not used for the Conceptual Site Plan, are
17 exempt from the requirements of the County's residential RaGa.
18 d) Densiity under this Agreement. Pursuant to Section 9.5-204, Section 9.5-206, and 9.5-
19 219 of the County Code applicable to the Urban Residential (DR), Suburban Commercial
20 (SC) and Mixed Use (MU) districts and applicable provisions in the Comprehensive Plan,
21 Owner is entitled to redevelop, and will redevelop the Property to consisting of three (3)
22 transient units, twenty-two (22) market rate units, subject to Planning Commission
23 approval.
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2
e) Commercial Floor Area Approved Under This Agreement. Pursuant to County Code
9.5-124.3, the Owner is to be able to use or reconstruct a total of three thousand seven
hundred eighty two (3782) square feet of commercial floor area or non-residential
development on the Property without being subject to NROGO requirements
3
4
5
1) ACCI~SSOry
Uses.
Accessory
uses
to
be
developed
or
6
redeveloped on the Property as part of the development include the following: Pools and
pool decks, landscaping, street and parkiog areas, and all other areas of the
7
8
development not part of a transient residential unit. Accessory, "back of the house" uses
9
to the development: spa services, storage, receiving, men's and women's locker rooms,
10
employee lounge, public circulation, maintenance, toilets, offices, and mechanical room.
II
The use of the accessory uses shall be limited to the owners and guests of the
development. The accessory dock slips will be for the exclusive use of on-site owners and
guests and will not be operated as a commercial marina. No live-aboards will be
permitted. The Owner shall record in the public records of Monroe County a deed
restriction in a form acceptable to the County prohibiting the use of live-aboards on the
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16
Property.
17 8.
Devellopment Conditions. The following conditions, terms, restrictions, and other
18 requirements have been determined by the County of Monroe to be necessary for the public
19 health, safety, and welfare of its citizens:
20 a) Building Height. Buildings may be constructed to a maximum height of thirty- five (35)
21 feet pl~r section 9.5-283 of the County Code
22 b) Setbacks. The County acknowledges that there is no undisturbed or unaltered shoreline on
23 the Property. Pursuant to County Code Section 9.5-286, a twenty (20) foot setback from
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the mean high water line ("MHWL") shall be required for all principal structures.
2 c) Utilities, Lighting, and Signage. Utilities, lighting, and signage shall comply with all
3 applicable requirements of the County Code, including the waterfront lighting criteria in
4 County Code Section 9.5-395. The Owner shall install all utilities underground where
5 practicable and shall screen all utility facilities. The Owner shall utilize shaded light
6 sources to illuminate all signs, facades, buildings, parking and loading areas, and shall
7 arrange such lighting to eliminate glare to parcels lying outside the Property. No
8 intermittent or flashing lights or flashing signs shall be allowed.
9 d) Landlscaping. The Owner and/or condominium or other association shall utilize
10 "best installation and maintenance practices" for landscaping throughout the Property,
11 including but not limited to that which is required in Divisions 10 and 11 of the Code,
12 throughout the project. The above listed parties shall provide a gnarantee bond to ensure
13 one hundred percent (100%) survival of all owner-installed plants for one (I) year after
14 receipt of a final Certificate of Occupancy for each section of the Development, acts of
15 God such as hurricanes not withstanding, as further defined by Sections 9.5-361, 9.5-376,
16 9.5-378, and 9.5-379 of the County Code. Seventy percent (70%) of all required plants
17 installed shall be Florida Keys native plants that are suitable for the site conditions and are
18 a species typical of the Upper Keys. The Owner shall remove all Category I invasive
19 exotic plants on the Property.
20 e) Parkilllg. The redevelopment shall comply with the parking criteria as required by Section
21 9.5-352 of the County Code. The owner shall have the right to place nine (9) parking
22 spaces of the total parking spaces required for the restaurant on the public right-of-way of
23 Second Avenue immediately adjacent to the restaurant, and on County property to be
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2
improved and maintained by the Owner as described in section 9. "Other Improvements
for Public Use" below.
3
f) Othllr
Improvements.
There
will
be
a
sewage
treatment
4 plant (STP) provided as depicted by the Conceptual Site Plan that serves the Property, or
5 connection to the Key Largo Wastewater Treatment District at time of permit.
6 g) Internal Infrastructure. The underground infrastructure, water and sewer serving the
7 transient residential dwelling units and residential dwelling units and commercial units,
8 shall be completed before a Certificate of Occupancy may be issued for the unit.
9 h) Fire Safety. The Owner shall provide firewalls and other such fire protection facilities
10 as required by the Life Safety Code. Fire sprinklers will be installed as required by
11 County Code.
12 i) Open Space Ratio. Pursuant to County Code Sections 9.5-343, 9.5-262, and 9.5-267, a
13 minimum of twenty per cent (20%) open space is required. The Owner will maintain a
14 minimum of twenty per cent (20%) open space on the Property.
15 j) Wind Load. The Owner shall construct all structures on the Property, including doors,
16 windows, and cladding, to withstand the mile per hour peak winds as specified in the
17 2004 Florida Building Code.
18 k) Enerl~y Efficiency. The Owner shall construct all residential and commercial structures in
19 conformance with the specifications of the State of Florida Energy Efficiency Code for
20 Building Construction (State Energy Code) and further defined by Sections 9.5-329 and
21 9.5-335 of the County Code.
22 I) Permits from Other Regulatory Entities. Other agency permits or approvals may be
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required as provided by applicable law prior to the County's issuance of building permits
2 for redevelopment of the Property. The Owner shall obtain all necessary permits or
3 approvals from other local, regional, state and federal regulatory entities and provide
4 copies of each to the County within a reasonable time after such permits are issued.
5 m) Stormwater Management. The Development shall comply with the stormwater
6 management criteria in County Code Section 9.5-293 and as approved by the South
7 Florida Water Management District (SFWMD). The Development will meet all applicable
8 federal, state, regional, and local stormwater management requirements, including any
9 applicable requirements pursuant to the National Pollutant Discharge Elimination System
10 (NPDES) permit issued by the Florida Department of Environmental Protection (FDEP)
11 for the County in February 2005, prohibiting direct discharges into Outstanding Florida
12 Waters.
13 n) ROGO EXEMPT Dwelling Units. The Owner has agreed to donate to the County two
14 (2) market rate ROGO exempt dwelling units, which it owns, or controls, for affordable
15 housing use, administrative relief, or any other lawful purpose as described in Section 4
16 "Dedication ofROGO Exemptions" above.
17 0) ROGO EXEMPT Transient Units. The Owner has agreed to donate to the County
18 eight (8) transient residential ROGO exempt units, which it owns, or controls, for
19 affordable housing use as described in Section 4 "Dedication of ROGO Exemptions"
20 above.
21 p) Additional Conditions by Mutual Agreement. Nothing in this Agreement shall
22 preclude the parties from applying additional conditions, by mutual written consent,
23 during the [mal permitting approval process.
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q) Temporary Sales Facilities. The County will permit the construction/placement of a
2 temporary sales center and a model unit.
3 r) Unity of Title. The Owner has agreed to execute a Unity of Title combining the upland
4 parcels described in Exhibit A and to record same in the public records of Monroe County,
5 Florida. The Owner shall provide copies of the recorded instrument, showing the book and
6 page where recorded, to the County within ninety (90) days of the effective date of this
7 agreement. Prior to recordation, the Owner shall additionally provide the County an
8 Opinion of Title in a form acceptable to the County Attorney.
9 9.
Public Utilities; Concurrency, Impact Fees. The following identifies the public facilities
10 that are required and that will service the development authorized by this Agreement; who shall
11 provide the facilities; what new facilities, if any, will be constructed; and a schedule to assure
12 public facilities are available concurrent with the impacts of development.
13 a) Potable Water. The Florida Keys Aqueduct Authority provides domestic potable water.
14 b) Electric Service. Florida Keys Electric Cooperative provides electric service.
15 c) Solid Waste. County Garbage Service or its successors and assigns, as determined by the
16 County, provide solid waste service.
17 d) Fire Service. Fire service is provided by the Key Largo Volunteer Fire District.
18 e) Concurrency. All public facilities identified above are available as of the date of this
19 Agreement, and capacity for each is projected to be available concurrent with the impacts
20 of development.
21 f) Wastlewater. Wastewater treatment shall be provided by the construction of a new
22 advanced wastewater treatment ("A WT") plant approved by the Florida Department of
23 Environmental Protection. The treatment plant shall meet the A WT nutrient removal
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6 g)
7
8
9 h)
10
11
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15 10.
standards as specified by FDEP and shall be completed before a Certificate of Occupancy
may be issued for any unit or accessory use. Should the Key Largo central wastewater
treatment system have available capacity and collection lines in place at the time of
certificate of occupancy of the units and commercial floor area at the resort, the owner
shall connect to that system.
Public Recreational Facilities. Public recreational facilities shall be addressed through
impa'~t fees, if any. The Owner has agreed to donate land for public open space use and
recreation.
Impact Fees. Any increased impact on public facilities or public services attributable to
each unit of the development, and the cost of capital improvements to meet the associated
demand on such facilities or services, shall be assured by payment to the County,
concurrent with the issuance of the building permits for each unit, of any applicable
County impact fees required by ordinance then in effect, as well as by payment by the
Owner of any applicable utility system development fees.
Retellltion and Transfer of Excess Commercial Floor Area. The Property has existing
16 rights to fivtJ thousand one hundred eighty three (5183) square feet of lawfully established non
17 -residential floor area. The Conceptual Site Plan proposes the use of three thousand seven
18 hundred eighty two (3782) square feet of non-residential floor area. The County and the Owner
19 agree that the excess of one thousand four hundred one (1401) square feet of floor area may be
20 retained by ~l1e owner and transferred to another site as allowed by County Code.
21
11.
Extelllsion of Reverter Clause Attached to Approval of Abandonment of Portions of
22 East First :and East Second Streets. The County's approval of the Owner's petition for
23 abandonment was approved with the condition that should development on the Property not be
24 undertaken ,.vithin two (2) years of the approval of the abandonment, the road right-of-way
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, 1 abandoned will revert to the ownership of the County. By this Agreement the County and Owner
2 agree that the time frames for the reversion clause of the road abandomnent approval is extended
3 to the period required for obtaining Certificates of Occupancy for the development or ten (10)
4 years from the effective date of this Agreement as provided in section C.B a.3 below.
All Local Permits Approved or Needed.
Development Approvals. The following County development approvals are required for
the development authorized by this Agreement:
1) Conditional Use Approval. Final Site Plan approval by the County Planning
Commission and planning staff confirming compliance with this Agreement and
applicable County Code requirements.
2) Final Site Plan. Final site plan application and approval by the County building
official, fire marshal, and planning staff confirming compliance with this Agreement
and applicable County Code requirements.
3) Building Permits. As of right building pennits will be issued, as provided
pursuant to the County Code, for each transient residential dwelling unit as well as for
5 12.
6 a)
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10
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the boat dock units, pool facilities, commercial floor area, and other individual
slructures. An overall site pennit will address landscaping, parking, paths, setback,
open space and other associated items. The Owner has informed the County that as an
option it may employ the services of a "private provider" architectural engineering
firm to review building permit applications and perform construction inspections and
issue reports to the County, as allowed by state law applicable to the Building Code.
The County has indicated that it will cooperate with the Owner to facilitate the use of
"private provider" services for building permit review and inspections, whose cost will
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be the responsibility of the Owner. The Owner shall have a period of ten (10) years
timm the effective date of this Agreement to obtain the fIrst CertifIcate of Occupancy
DJr a building on the Property and four (4) years from the effective date of this
Agreement to obtain the fIrst building permit. The building permits for the
improvements to Second Avenue shall be submitted within forty-eight (48) months of
the effective date of this agreement.
b) Revi,ew. No further review or discretionary review will be required by the County with the
exception of the Planning Commission Major Conditional Use review, it being agreed that
the Development, as depicted on the approved Conceptual Site Plan attached hereto,
requires only the aforementioned development approvals so long as the Final Site Plan
substantially complies with the Conceptual Site Plan approved under this Agreement.
c) Compliance. Nothing in this Agreement shall be deemed to obviate the Owner's
compliance with terms and provisions of each such identifIed approval.
d) Completeness. The parties acknowledge that the Owner
has submitted all information necessary for review under the County Code.
MutUlal Cooperation. The County agrees to cooperate with the Owner in a timely manner
17 in providing and/or granting all permits, licenses, approvals, or consents necessary or appropriate
18 to fully implement this Agreement. The County and the Owner agree to cooperate fully with and
19 assist each other in the performance of the provisions of this Agreement.
20 14. Development to Comply with Permits and County Comprehensive Plan and Code
21 Provisions. The development described in and authorized by this Agreement shall be constructed
22 in accordance with all specifIed permit conditions, and in accordance with all applicable
23 provisions of the County's Comprehensive Plan and County Code. No CertifIcate of Occupancy
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to
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for a permanent individual building, with the exception of the temporary sales office/model unit
2 shall be issued until the County has assured itself that, subsequent to approved plans, the Owner
3 has complied with all conditions in the permits issued by the County and other regulatory entities
4 for that building.
5 15. Findiing of Consistency. The County finds that the Development authorized herein is
6 consistent with the County's Comprehensive Plan and Land Development Regulations as
7 applicable. Approval of this Agreement satisfies the requirements of Section 9.5-266(3)b of the
8 Code.
9
16.
Compliance with Permits, Terms, Conditions, and Restrictions not identified Herein.
10 The failure of this Agreement .to address a particular permit requirement, condition, term, or
11 restriction shall not relieve the Owner of the necessity of complying with the laws governing said
12 permitting requirements, conditions, terms, or restrictions.
13 17. Governing Laws.
14 a) Controlling Regulations. For the duration of this Agreement, all approved development
15 on the Property shall comply with and be controlled by this Agreement and by the
16 provisions of the Comprehensive Plan and County Code, as applicable. The parties do not
17 anticipate the application of subsequently adopted laws and policies to the Property except
18 as expressly provided in this Agreement.
19 b) Subsequently Adopted Laws and Policies. Pursuant to Section 163.3233, Florida
20 Statutes (2004), the County may apply subsequently adopted laws and policies to the
21 Property only if the County holds a public hearing and determines that: (a) the new laws
22 and policies are not in conflict with the laws and policies governing the Agreement and do
23 not prevent development of the land uses, intensities, or densities set forth in this
- 19-
109amdda12l807
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3
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5
6
7
8
9
10
11 C)
12
13
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15
16 18.
Agreement; (b) the new laws and policies are essential to the public health, safety, or
welfare, and the County expressly states that they apply to the Development that is subject
to this Agreement; (c) the local government demonstrates that substantial changes have
occUlTed in pertinent conditions existing at the time of approval of this Agreement; or (d)
the Agreement is based on substantially inaccurate information supplied by the Owner.
Redevelopment of the Property shall not be subject to any moratoria or other restrictions
on redevelopment, including the redevelopment of existing mobile home parks, marinas,
or recreational vehicle parks, which may be established or otherwise imposed in any
manner or at any time by the County. Nothing in this Agreement shall prohibit the parties
from mutually agreeing to apply subsequently adopted laws to the Property.
State: or Federal Laws. If state or federal laws enacted after the effective date of this
Agreement preclude any party's compliance with the terms of this Agreement, this
Agreement shall be modified as is necessary to comply with the relevant state or federal
laws. However, this Agreement shall not be construed to waive or abrogate any rights that
may vest pursuant to common or statutory law.
Amellldments,
Renewal,
Revocation
and
Termination.
This
17 Agreement may be amended, renewed, or terminated as follows:
18 a) Amellldments. As provided in Section 163.3237, Florida Statutes (2004), this Agreement
19 may be amended by mutual consent of the parties to this Agreement or by their successors
20 in interest; an instrument in writing signed by the parties or their successors shall
21 accomplish an amendment under this provision.
22 b) Renewal. As provided in Section 163.3229, Florida Statutes (2004), this Agreement may
23 be renewed by the mutual consent of the parties, subject to the following public hearing
- 20-
requirements in Section 163.3225, Florida Statutes (2004): the County shall conduct at
2 least two (2) public hearings, one (I) of which may be held by the local planning agency at
3 the option of the County. Notice of intent to consider renewal of the Agreement shall be
4 adveltised approximately seven (7) days before each public hearing in a newspaper of
5 general circulation and readership in Monroe County, Florida and shall be mailed to all
6 affected property owners before the first public hearing. The day, time, and place at which
7 the second public hearing will be held shall be announced at the first public hearing. The
8 notic,c shall specify the location of the land subject to the Agreement, the Development
9 uses on the Property, the population densities, and the building intensities and height and
10 shall specify a place where a copy of the Agreement can be obtained.
11 c) Termination by Owner. The Owner or its successor(s) in interest may terminate this
12 Agreement following a breach of this Agreement, upon written notice to the County as
13 provided in this Agreement.
14 d) Revocation by County. Pursuant to Section 163.3235, Florida Statutes (2004), this
15 Agreement may be revoked by the County if the County finds, on the basis of
16 competent substantial evidence, that there has been a failure to comply with the terms of
17 this Agreement.
18 e) Termination by Mutual Consent. This Agreement may be terminated by mutual
19 consent of the parties, and such mutual termination shall not require a public hearing to
20 effect the termination.
21 19. Breach of Agreement and Cure Provisions.
22 a) Written Notice on the Owner. If the County concludes there has been a material
23 breach of this Agreement, prior to revoking this Agreement, the County shall serve
- 21-
109amddal21807
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9 b)
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19 C)
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21
22 d)
23
24 20.
written notice on the Owner, identifying the term or condition the County contends has
been materially breached and providing the Owner ninety (90) days from the date of
receipt of the notice to cure the breach or negotiate an amendment to the Agreement.
Each of the following events, unless caused by fire, storm, flood, other Act of God, or
events beyond the control of the Owner, shall be considered a material breach of this
Agreement: (a) failure to comply with the provisions of this Agreement; or (b) failure
to comply with terms and conditions of permits issued by the County of County or
other regulatory entity for the Development authorized by this Agreement.
Written Notice on the County. If the Owner concludes that there has been a material
breach in the terms and conditions of this Agreement, the Owner shall serve written notice
on the County, identifying the term or condition the Owner contends has been materially
breached and providing the County ninety (90) days from the date of receipt of the notice
to cure the breach or negotiate an amendment to the Agreement. The following events,
unless caused by fire, storm, flood, other Act of God, or events beyond the control of the
County, shall be considered a material breach of this Agreement: (a) failure to comply
with the provisions of this Agreement, or (b) failure to timely process any application for
site plan approval or other development approval required to be issued by the County for
the Development authorized by this Agreement.
Option to Terminate. If a material breach of this Agreement occurs and is not cured
within the time periods provided above, the party that provided notice of breach may elect
to terminate this Agreement or may seek to enforce this Agreement as provided herein.
Waiver of Breach. If either party waives a material breach in this Agreement by the
other party, such a waiver shall not be deemed a waiver of any subsequent breach.
Notic:es. All notices, demands, requests, or replies provided for or permitted by this
25 Agreement, including notification of a change of address, shall be in writing to the addressees
- 22-
identified below, and may be delivered by anyone of the following methods: (a) personal
2 delivery; (b) deposit with the United States Postal Service as certified or registered mail, return
3 receipt requested, postage prepaid; or (c) deposit with an overnight express delivery service with a
4 signed receipt required. Notice shall be effective upon receipt. The addresses and telephone
5 numbers of the parties are as follows:
6 TO THE OWNER:
7 Doug Cordelo
8 Ocean Sunrise Associates, LLC
9 12800 University Drive, Suite 400
10 Ft. Myers, Florida 33907
11 Telephone: (239) 415-6202
-23 -
109amdda121807
With a CO]~Y by I'egular U.S, Mail to:
2 Timothy N. Thomes, Esquire
3 99198 Ov,erseas Highway, Suite 8
4 Key Largo, FL 33037
5 Telephone (305) 451-4053
6
7 TO THE COUNTY
8 Monroe County Administrator
9 1110 Simonton Street
10 Key West, Florida 33040 Telephone: (305) 292-4441
11
12 With a cO~IY by I'egular U.S. Mail to:
13 Suzanne Hutton, Esquire
14 Monroe County Attorney
15 Post Offj.ce Box 1026
16 Key West, Florida 33041-1026
17 Telephone: (305) 292 3470
18
19 21.
Annual Repol't. On the anniversary date of the Effective Date of this Agreement, the
20 Owner shall provide to the County a report identifYing: (a) the amount of development authorized
21 by this Agr,eement that has been completed; (b) the amount of development authorized by this
22 Agreement that remains to be completed; and (c) any changes to the plan of development that
23 have occurned during the one (I) year period from the Effective Date of this Agreement or from
24 the date of ~le last annual report.
25 22.
Enfol'cement. In accordance with Section 163.3243, Florida Statutes (2004), any party to
26 this Agreement, any aggrieved or adversely affected person as defined in Section 163.3215(2),
27 Florida Statutes (2004), or the state land planning agency may file an action for injunctive relief
28 in the circuit court of Monroe County, Florida, to enforce the terms of this Agreement or to
29 challenge the compliance of this Agreement with the provisions of Sections 163.3220-163.3243,
30 Florida Statutes (2004). If this Agreement is not accepted and approved by Monroe County, then
31 all rights and property transferred by the O\\l1er to the County shall revert to, and shall be
32 transferred back to. the Owner.
- 24-
23.
Binding
Effect. This
Agreement
shall
be
binding
upon
the
2 parties hereto, their successors in interest, heirs, assigns, and personal representatives.
3 24.
Drafting of Agreement. The parties acknowledge that they jointly participated in the
4 drafting of this Agreement and that no term or provision of this Agreement shall be construed in
5 favor of or against either party based solely on the drafting of the Agreement.
6 25.
Severability. In the event any provision, paragraph or section of this Agreement is
7 determined to be invalid or unenforceable by a court of competent jurisdiction, such
8 determination shall not affect the enforceability or the validity of the remaining provisions of this
9 Agreement.
10 26.
Appllicable Law. This Agreement was drafted and delivered in the State of Florida and
11 shall be construed and enforced in accordance with the laws of the State of Florida.
12 27.
Litigation; Attorney's Fees; Venue; Waiver of Right to Jury Trial In the event of any
13 litigation arising out of this Agreement between the County and Owner, the prevailing party shall
14 be entitled to recover all reasonable costs incurred with respect to such litigation, including
15 reasonable attorney's fees. This includes, but is not limited to, reimbursement for such reasonable
16 attorneys' fel~s and costs incurred with respect to any appellate, bankruptcy, post-judgment, or
17 trial proceedings related to this Agreement. Venue for any legal proceeding arising out of this
18 Agreement shall be in Monroe County, Florida. The parties to this Agreement waive the right to
19 a jury trial in any litigation arising out of or initiated under this Agreement.
20 28.
Use of Singular and Plural. Where the context requires, the singular includes the plural,
21 and the plural includes the singular.
22 29.
Dupliicate Originals; Counterparts. This Agreement may be executed in any number of
23 originals and in counterparts, all of which evidence one (l) agreement. Only one (I) original is
- 25-
I 09amddal21 807
required to be produced for any purpose.
2 30. Headings. The headings contained in this Agreement are for identification purposes
3 only and shall not be construed to amend, modify, or alter the terms of the Agreement.
4 31.
Entirety of Agreement. This Agreement incorporates or supersedes all prior
5 negotiations, correspondence, conversations, agreements, or understandings regarding the
6 matters contained herein. The parties agree that there are no commitments, agreements, or
7 understandings concerning the subjects covered by this Agreement that are not contained in or
8 incorporated into this document and, accordingly, no deviation from the terms hereof shall be
9 predicated upon any prior representations or agreements, whether written or oral. This
10 Agreement (:ontains the entire and exclusive understanding and agreement among the parties
II and may not be modified in any manner except by an instrument in writing signed by the
12 parties.
13 32. Recording; Effective Date. The Owner shall record this Agreement in the public records
14 of Monroe County, Florida, within fourteen (14) days after the date of execution of this
15 Agreement. A copy of the recorded Agreement showing the date, page and book where recorded
16 shall be submitted to the state land planning agency by hand delivery, registered or certified
17 United States mail, or by a delivery service that provides a signed receipt showing the date of
18 delivery, within fourteen (14) days after the Agreement is recorded. The Owner shall also provide
19 a copy of the: recorded Agreement to the County within the same time period. This Agreement
20 shall become effective thirty (30) days after the date it is received by the state land-planning
21 agency.
22 33. Date of Agreement. The date of this Agreement is the date the last party signs and
23 acknowledges this Agreement.
- 26-
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives,
2
have set their hands and seals on the dates below written.
The foregoing instrument was acknowledged before me on this \ G day of DE'~.......\:.-e-r
of Ocean Sunrise Associates LLC. who is
3
4
5
6
7
8
9
10
11
12
Ocean Sunrise Associates LLC
\'2..." \0.. ~ 0..,
Date
By:
STATE OF FLORIDA
COUNTY OF r.i~rJjlj''::'E LeQ..
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2007, by~,~nl:03.Cc....,\Q\\oas -J~
personally kJ~ to me or who produced
did/did not take an oath.
s 1. Cordello
as identification, and who
N"t~~l~~..,
My commission expires: r /2.3111
COUNTY OF MONROE
l'I'~I'OI
Date
By
CD 'UIIIIIIJ.-'
. .... ..... . ... ".....
..~ . "'l1li".
01 . ..DO_ ~
(Seal)
~
Sonny McCoy, MAYOR
rH" ""
ATTES~.I...."
"" ~ ~13rk
CO~~~~' ~J6amkJ
APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE
COUNTY OF MONROE, FLORIDA ONLY.
"." (\ C\ ",
d~N~~;~~jyUHr o2Jp;y
~-1,-/ /7f; ,;(OC'5 -27-
y
109amddal2l807
EXHIBITS TO OCEAN SUNRISE ASSOCIATES, LLC
DEVELOPMENT AGREEMENT
EXHIBIT A:
LEGAL DESCRIPTION OF PROPERTY
EXHmIT B:
LEGAL DESCRIPTION OF LEASED PROPERTY
EXHmIT C:
CONCEPTUAL SITE PLAN
EXHIBIT D:
LEGAL DESCRIPTION OF LAND TO BE DEDICATED TO
COUNTY
EXHIBIT A
Legal Description of Subject Property
Subject property containing parcels described as:
Lots 1..8 & 30-33, Mandalay Subdivision, Plat Book 1 -194, Key Largo,
Monroe County, Florida
RE # 00554420;
SW'LY 125'x250' & NW'LY 95' ofNE'LY 100' ofSW'LY 225' ofSQR3, Mandalay
Subdivision, Plat Book 1-104, Key Largo, Monroe County, Florida
RE# 00554730;
Lots 1-2, Block 4, & Adjacent Bay Bottom, Mandalay Subdivision, Plat Book 1-194,
Key Largo, Monroe County, Florida
RE# 00554740;
NE 50' of the SW 225' ofSQR 3 (5-A), Mandalay Subdivision, Key Largo, Florida
PT SQR 3, Mandalay Subdivision, Key Largo, Monroe County, Florida
RE# 00554670
Section 06, Township 62, Range 39
EXHIBIT B
Legal Description of Leased Property
Property described as the Easterly ten feet of Second Avenue, adjacent to Lot I, Block 4,
Plat Book 1-194, Mandalay Subdivision, Key Largo, Monroe County, Florida
A......-tG~ 14:11
1,_ IIlIIlII ClllIlT'I D8111I1'_'
+l8InlO2l
I-iN · 101
F-5fl
...._ Ar.Il "-qll
TMI$ U!ASl!'4IlaMe/llT. made Qr\d ....84 Info INs .IJ!! day ofJVU"~i!k.r-> 1997.
--, ... lIClARO O' COUNI'Y COMMISSIONIRS Of MONlIOI COUNrY. FlORIDA. "-tafter
..44.._d...... "IJ!SSOIl" ancICANAUS IiOUlIof4COlrP~...........,.... ......Ho OS"I.!SRE.-
lE!lSOlf. fat and '" ODI"Id_ ~l"'" of .. IIIUlual 00\"__'" CItld ot;lo_m.,," heI............
_.I(lioooloct. does '--bv '- to ICIId LESSEE tile IcInds lMoo.~ 11:1 In 1>-_""" 2 ~ and
subject to the relit "L ~ fwmI and COt...........
I. I!IIfIlI ............ dlhls ....1hCIIIt>> "'Q~ cltwenflo f2OI_c_..._..... on
121,'1 ~ and Mdhg on J,+~7 UIlIesr sooner .........m.u
~ lolhe~ of.........
2. ~ ..~........ OF I ...... ~, " ..." to IhII __ IIl111ucted In Itte CcMl",
of Manto.. Slate oIl'1ar1do. and II - ~ oloIIClIItlecI.. _ -r.rlv /en Ieef 01 ~d
"-.ue. MQndaltJyS'lbdlvfliGn. r.v Iago. MCU,,-Caunty.1'Iaddc:L <:>rtl ntIloLolI.llIock.f.1'IcrI
IIaat '-19.
.
3. I'IIIIPna' lhiI ~ ,. .... lIle ~ .1.:..1> ..:lln 6hltlIl " wt1ic:h il Q"'-hed hwetc>
and_I Q ~"-'. .
.. CONSI""ufICIo! ISSII lid goy Ilo LIISOIt ...... ... ~ at ... C:O_ncamouv
d_...,., eod1 or.J. -. "-........ ...... eI $100_""10 be .....Mr.,J 10 ... o.a: far IIle
IIocrd 01 C:uumv Corr..' l..ners. * WMeheod StrHt. _ Wesl. fIIarldo 33040.
5. IQUe ENJOYIoIM" AND mcur OF.- U!!Sa;_ '- the right of a-.- ..... ......
to. tom Clf~ upon........ ~-.. forCIII ~ INIc: , to ........ CIloW ..*-......" bot
laldlSSll,... Ihe"",* _.L.~ad '-Otln.
6. UNAI",""",,-, USE LeSSII...... ___ III ~.. ancI eo, ,.:L..Lt>- pr......" lIle
~ lJJa of ... ~ .....,... 01' "'-' we ~ not In COlN......._ ,.,", ... ___
No dlclnges OI-..x.c..amenfl wI'llc:h ;, IQ_ ID any cMcne ... -*IIrla b)1pIInt d buIldngs on
SOld --, .,....:11... or OIlY Olher irnpflr>..",,,, '" any .1...... fa "'"l' ~ ~ :UQping.
~ pIanfI-1'OCtI. JhaI be 111= ...&d..,.,. "*.......
1. .a.~"'''''II'''''J.IC''' TNi........notbe--<.t~or,.,.,r. Jlnwhal.crlnparf
w1fhou1lhe PI'Iar",",*, coo_.r at LISIClIl. ""., v-r~"_" "'''~'1lJto.. _.,.,., In 'MIaIe 01
In pari wflhc)uf 1M PI'Iar"",".., _I atlUSOI ft:JIIw Waicf and ..rfIolovr tevoI ""-:t.
.....-..-.. -'-"-~J L'ea~~ L .....,-*IIlaon~......PM>.
Anf ohw "-II not 0l-_.rec1 In ""'-' I:Ir U!SSOlt Jh:oI be VGIcl GIICI w11hout... ~
,. ......... ~ lNIl ~1<lI\iI Ll!ISOll 01 its QAr q!~iolod ___ ~1aIlvCl or
1IfI'Ipio,-.lflalI have .. rfghI of CIIYf - <II ......... ___.. """" to hpeet '"" *-cI
~mlo.. ollcf lIle - <l'ICf <)I:d".'''-. ctLessa lnOll\l moIWl*fIaWng Ie.... '-.
,0. jNSIIIU.ucl' 1IA3I-........ lAotIg!he...... of Ihio --. LESSEE Jt1aI/ PIOOUIlI and
IT.....""', PCIlIoIet of .......... '-~ "*- CIIICf .-." """'- GOL_ _ .. The IabIIIv ...........
CO\08r~". shol be In ClInOunlI no! leD lIlan $loo.ooo.110 i*' __ ,ce and .$3lO.llllOJIO per
0-.: :fe,,' --"', w...v. dooafh at'Id PrOl''''''~' JiI~ CIr\ lhe r......d _..11... Sl.o::h po/IciIIs
of I'IIllIanQe IIIC1tl "- UiSSOR. Mo...... c:o....Iy. CII'Id l8Sl!!I! ...~. IJ:SSE!!..... IUbmit
wrm.n evid.."1C& of havlno III I urea ... ~ pOIdoK rlOCIUrec:f ..... pnor 10 the ~1OCtfIr.
A......ZGU 1~1:IJ
F,....aD CWlTI' EIIlIIIIIIIlC
+_"'1
T"'. ? ac1.lllaS F-5"
daM 01 IhiI -- and IhoI suIlmII ~ 1h8l...,.... """'-' evi*.lCa 01 ,"",.u, .... IUc:I't
'""""'""". ,..,ao- 101110 Clett eftr. &cqaci'CounIreo..., 1. I...... Mo..-Cauntv. f'Iortcto.lillO
WhilehecKf Shet. IC-V West. 1\ ~ l.l!SSEE thai ~ ell pcIIklIes oIlnst.rl:wlce !rum a
1InaI- I"f,~ Iltlletna.a dyjyautho.~tD doh-'"-In....StaIIIt afllbrcb. ISSEE PlCII be
ftnanc:IclIIv..... : J .- ~ let any ... ...... 10 ,..... 10 0bIai't CIIltoquate ~ C:O.... "'w-. ancs !he
IcIikr9Io mcIo 'IYil IYClh F &..... or cerlIll.;,I..1n the GI'llClUlIs _1arltI shot -.IIIuIe 0 breach of
IWt fecn"
\1. W'....'tt I!acn party II "''Il ~-dllll Jat 01 -.....lCll"+MY and PR>l:*1y dco.. Ilil
afIrIbuIabIe 10 ho nrlJ"cI- .1 actt Or 011" duo d Ihat Party and ... ......... .... ~':.Cti _
aggnls ",.,...... Hun.1ll n..;., mou be CClIIIIl\Ied ca an WIemolfl~ C/' Q ........... d _lIIfy..
irIWnlrlIy ',*,re.l bIr CII'llr PC>>'tV n..ta. at "n,.icied In Sac:fIan 7"-21. ""-leI. SIaIu.... ...
--"'II'OtII_1D ...... or anyOlflar law """... 'If II 'I I.. Gn cIamI.
12., PAYUIIM' DFUD!Ir...... a-"--m lESSIIJIlall__ .Ie U'~lllll>lllv farClrlCl
IhoI pay allobIIlIeJ lhcrt -- 10 .. '"*' /l'-.~"'" or la ItIe 1mp1C......... ~.
~ a'I\I and aI ad valalwl. '- and 41..... 00' CInd..... _-1>..._. <II' .... d ~
IdncI en! ,a11I'1\Mho.~o'. .. 1'1. 'J .....,.. .... wHc:h ....".. bo Ilan...dIlar IlIwfufy UltMJ and
1IM8d"'.......""..__~_.IL I.
13. NO WAl_ [!II -~ Th.e ~ ", l8ICa 10 InIlIt tl..", ...... <II' "lP'8 Indon....
upon stlfcf ",.r.....__ Of any - or - of the.........,., IlItmI ones ClIOrJdIIanI of "*....
thai not bo OClI!Iflwd QI Q waloIw ot such c:g"......I.. Ienna or <<ll~ bill tile some shaI
ccnflnue In M -- - ~ and 110 __ o/f lI!SSQt of any of the PfOvWc,IJ honor ....1 In
..", ....,. be daJlol,..cI 10 '- been mcQ. lMI/.. the waIYW II 181 bth In Wll1Ing. JIgnecI by
t~..
lot. :IM 'Jlnl.iJ..........dedo.....tobe 01 lhe_1ICOdlhisleaoe.
I~ UJ1UrY - tES& sI\QII be rell ...lAo, lor !he PG~.l'lel.t ci' all ~ ..... the
IumIrIq ai' CICL eIllcllk.ll\l. watw and allier l>JtlIic USfflI fa ItMt ~ pIItl. 111I O~ 'Or hcMrog
ell utIIn. lumed off """'" ........, ~ _...... 4o....J..
14.. - IIIr'G 'IhIa -- '*- not __ pe.oM./m 01' j)elnMum ~ <II'
mil_,*- en" doa net give .. IlGht fa U!5$l!I! ta lllII tar or .vlfat! the same., GrId l.E!SSC>>
."lIu'y reall1leslhe il;httallaJe the IIIClIId I"......IarPlofl*eof CllPIaIItlQ QftCl ~..,
cI ancIlllhMIII bV wtIolll.v.- meatlI ~ pra,fdlId, how.... fhaf LESSeE natned heNr.
...... blo ~ COlI.P". -..... fer"", and all Jw.. J' IhaI might reM! to .... fa u....u",,- of
JGScfl!SS&~"""'elaICh . "l1rar..,nanclra=.." "'"f,:Il..&.1.
17. Ir.lWYCf .1.1. lBSEEthaI mate O"':.td* tc I.BSOIIllIInandcI end oIIIer..c......
-0 10 lNI ..... aM LESSOR IhcI "- .... rfaftt tD 'f/1I'tar audIf Mlh I1llOClrdI at onv
,. cn..u. &'lie Or,...... "" sutl..Ijj"" of QI'I ~ ~- r 40.1' c:adt bIr a c..1Iled P\JbIlc
~ c~'*'o the tlm! aI,,1eaIt.. >>it tight ftlI be aonIIhuauo .... "'" '- .... Clr is
.................. 'ihII '- may be .....,........ bIr lesso. JhauIa I.e58! fallo aIDw PlIbIIc ~ to
oj ~ J:lQJMB. letteR 01' aIIw n~.... tIlT NOII-...:I in ~ lIIilh lhfo '-.
PloIIUClnt 10 'he p..... 01 Chap/w 'If.1bidc SlaluIea.
I" t'~ OF _._~ leSOt __..... no IclbIIlv of nhl/gQlICIrllo lfSSEE "'"'"
rafWW'tc& to "- oor~. Of ". tea.ed "'..n "'-r 1he,..., Pf'e4fl1iJ_ "-reIn eft ~ by
l.SIOII III LESl;ee Ir\ an .... II" ccndllon. lO'ilh i.fS!O. _Ill." 'U no _tlIfbIlly fer rhe cera. "'PelF.
rnainta~ or improy......." 01" '-ad Pl'" . 1 for h baneIIt cI LeISE!
~
~1(;1i
Fr-a_ COllm IIUEt'"
+1H2tMn1
T-ft4 F.ell/GliB HBI
.". ~-I!- - lAWS lESS8i cv- fila! tftI5 ..... II eGftftngen! 1.I~ and
IUbjIIal lID 1SSI!E Gbbllo.o c:lII .... '11 ~ and Co:l,.~ with.. 1IIl~~r. U.. _"Is.
rtQlllafIant. ......6Qo.. rules. and Iawa 01 the Stole oIl'1or1da or .he lInIIecl hres or 01 ctYf
poIIbIsw.5VIllon or GQenCy 01......
2Il. ~ AI noIIcea ....... under IhII __ IhoI be In WIllIng and IhaII be senred bV
,...... mal h:lIuI:IlIw..." not ~ lD. nolfoe of llnl' w.'Cr..n __ .,.-., to 2S3.G4.
I'IclIfda Statu:la to the IaIf =.fd. _ of the pa1y lID wtlcm nob 1110 be ~. ell Cl""anated by
&uGh ~ In ~ lI!DOlI_ LESSEE '-"bv If 1\11 ..,elh4olr ac:/m- CIS '-':
,~
Countv .I4,i."~_
I'WlIc SeMolIII U,...
5100 C"'-ue .... Sloolc ~
ltey W8If. PI. 330<<1
&SIR
Marly Webb
CANAus HOIDINQ CORP.
10 bUn ..10:1 SlNIIt
rev Lcqo. R &m7
21, IIIIFAnI QI' COV.&llNTs. - CI8 ~ Should I.SSEE ~ ~ olllle
COVenanll;. f8mlI or -..:It..4 d 1Ili& --. tIISOIl... .. WIIIIiIn naIcr lID 1f.SSB: IIDIWfMdv
M:h tna...ft ~""'*' IidV 1'01 ~ of IUd! noIc8. "'!he elIent IISSl!I fc6 10 ....ledJ' 1he ~
to Ihe ....1oI_1loi. d u:sso. wIIht1 *IV lMII dGvlI of "-'fpt cI WfIIfen notlce.1.SSClI may eIIIw
fHnInaloo "'1lIaIe CII'Id '..'BI' r.c.n.1SI& C1114...~ IJiDCIt mav ~ bv reason ollh..
br-=h ......... aM no,,,,,,, .... the _ of leco.wing .... __ J:QI.' DIWI 0'....._;$.
,.. or mall ,UtI HI .... In M foIee and 1OItee! <:lfld f'lI rei><< all r\iItlfs and .... ..... '-"'"
CO<1f~ """'" LlSSOR.
22. ""'''\DI'lOTHl!_'''
lAJ IIIIlIEe hII not da. ar IUIIer lID l>> donet. "" on ClI upon the '-cr ,.....~-I Of' 01
Q/tec~ ICIIclIeCllld PNo.' Of' 1 _lI Jr .ll~ any ad .......", /ftOy '-..If In cb. _I or
d.",~ t Ja'" , cf VCIkIe to the '--i FlftImlses or. f cent P'operfieo. or any part then!ot.
181 UlSII!I! shdt not gerwrqle. ... ~ PI-. nat. ...... or 1":h",_ any
COll'Q"d.40.... polo.....".. orDOlullcll~ Includna. butnotfmll-.llo, I IoI.w arblc: 1Ubt....._
~ or otfw -- CWI. nro. ar *"'" .... ___ Ml"1r or any ",aent IaI>ds Q( lIIII:II-.ln
allY 1ftCIl__ N.t ~.iIIIlO.lI Dv lIaor. for !he ~ at.. ..... .~ ~'IJ_4_ ............-. shell
""'""" and inGU:IIt -- .1lIma1'" or ~ ."'-d In U use s.ctIan HIli CJr which .....
.-.tanecI In .. lilt at ~.. 4wJ sut>...... -- . ..... by 1he unlttcI ..... Envtan"""'1l:I
JIll 1_..... !1III11CV ""1II.end theist 0I""U"Jo..6 If "_ CIILd by hllnllecl___ Cclnureh
or the IPA or dII/InecI bl' anr oIIw f.-a. stat. orllled otaIuIot. law. _4_~ ~ rule.
AlgUIot/on. ardIr ar ~ - ~ NilQlfng 10, or ImpcalillaMlv or ....... 01 00IldUct
COl,C4IIfIIo"" any h .J:.I& Ialfc cIl'"~......_ ........ .ab., "'-'L..t.A. ~! or
<:QI......lIooa..'. "~and .poIo.Jlc.J' IIhaf _ "-1'IRIductll or lIi1l1ft.._ dl.lI\-./ ...
FlarIda StcmMt. ChapMr 37f and Chaptr _ cnf /fie /\lief ~ ........... all ell
amlIrlcted << IlPdcdId frDm tme ID time. ........". 01 I.8EE't ....... to _\~ wlIh !his
PGlGQr.-4.. LISSIE shaI. at. tale 0I:IIt CIftCt -1=. -.. P---,..Ir ~1"""tCe and ~"I~ P\nUe
CI'ly IoogaIy ~Phct ..... "-........ 1:11 ._.1. cIecn.p. c1I1l.llJlh.......r....~ ...104......~
-1an:Itlon and ..""."".. or III ... __ Iill". bet. and 121 ell aIhIht ~ and .wfbce
"'CITEIn and IarIdI Glfb...1-.. by lESSEE's IUllh faIUe 10 00I1lplI,. CII moy be ,.... .v 10 bflng ...
IeClleClllNmltw ancI oIJlo<.hod oIHIfe ~ and b>ciIlnfD tUI .::0.-.._ wIh .. ~bIe
1edImI. lIa... Of IOColIlalvteL !awl. ~ CIllCIII, IUla ~ ..... and a..._
o-.d to -- ... d...........-d ...':"&', ... .... _~. ~ rm.....dL""'r prIar 10 tftII
OC:cummce wtlIcIloI OOUMd the cIoIl .... LelSIE'. ot.....n....... forth In filii 1'CII'09o,.f, shoI
JUNIv. IIw -VICIIlon d tu..,..... at fl'll1IaB. T,* ~..1Ih Shell not bll CCIIlS1rtAd Ql Q
J:mttation upon lESSEE', "1b~...Il... '""i_41111 Na... ~ 0Ild paytnenf 01 CIOIfs anc:t ,_ CII
lei lorth In pc;ItDfjl'llplt 12 of ItIis """'- ftCll' _ ..... oIIw ......"lI....u or __RIlles 01 WSEE
.1
A......!.N 14:\4
,....-lDlla COlIlIY !R1'lnIN~
+mni4Z1
i..... O,1841OCf F-HI
OJ ... troll. hweln. NoHng herein IhclIJ reflowe LESSef Of arty .-.-....ty <<1IabiIy ......criblld by
law tor 10... P8nOlIlw and <:lao. II I ....*' by C10.........etI1llIl A&.-........ and the COlt of c:lecWog
up Cnvcon.....,tlClllon ........ .....~ 0( h:h..1ll> by lSRE'. 0CfMIes or ~ :Illll... u,..,
--.Wl' of a ""-,,, a hat....J0.41Ubdanc:1. or pOlliall'. 01 any aIIw .JIaIaI..... 01 bcal. <Ial..
or f10dercc law, <lIdIo'lCll'lOo.. cac:Ie. IUIe. ff'guI1llllol. llRSIr CII' dIlc:ree -kilo", to !he QalIeI..at.n.
-taaoe.llI'OCIIctlon. pla~1 .h.d. q....._.t......<< "'J =.-..oranrOOMl....lCfIl..1.BSEE IhClll
IlIPGI1 SUClll \1=10....10 ell i. I:." ga.llmlMljohJj "lCI1Ir cr., hcM1g Iurlrckllcll. G"Id to taSOI.
011 wIIhh lhe.. Q. 11>0(1 pMod ollie ~Gta. 0QBnCr.
re,! SttoUd.... bo1flilll$ """leI! ....,d ....111 h '- ~ be lubstontlally
dClllClgeclI tor Qnv reoson ..., _.0<)1 be ..... ~l.... but ...... _t to law. be ..I.....e..\ ana
...... -.d Itly ..........., '1'1''''' laws in ~ at the limit aflUClllXX:UIence.1h& '- thaU
be CIUtartll~ ...........fltd.
A SlJ .-- t'V -.. Upon ten....o.. or ~a..... 01 !HI ...... l.!SRl! JhaI
.............I-.d Pl.. . t. 10 I.E55OIl. In" 8-., IW;I twtt.. ~ t:llhe Ieasecl J:ll'lll. ',.to. or ony
-' the._ II NlIIIW, U!SI8!..... r;Jwe..... rwlL-.... ~ lSSSOI CIt 1Ilclst.. '" men.. />lIor
to .. ""-. ~ or CII ."Ieased J:Il...J t... Heft "..... liioi ""*"- a IeOaI d -,~llon
and - """Pl0Ndl0n of.. Nt The .............." 0t1Iy be w:IIcIlt.... -tJ _.*! by lESSOa through
the --'1"1lI. fill ClI -- d.... b!rurnerIt ...... /he ... bl.lCIIII, at .. Ieaa. Prier to
........ or 011 or Q'\y PGI1 ",.. -...0 ~ a ,..,._ .1aIlw of 1M DiwWln 01 Sble l.snB
!hall P8IfaIm on l:lIHIIe h I~ l=tl.on. If Ititt........ ..._... ........ _1MJ:l... Nt tort. Tn PQ_':'lilI'
' h8I8In. U!SS1!f! tI<loIIllMI\I QI CO$Ir NlCI~\I to ....\&.. _ ~ .'IOI<llo'.,_". 0(
c",",--
:u. ........~............. UI!M: 011 0111.. -!I.I.rr......~ ,.. lIlfe to the .......,
pr-. II ". by tESSOR LSIIIiE JIlaI not de or '*"" ~ to be .~ whIclh PVlPOrtJ to
..... co ..., or ~ fill ow, notuw agoinot the real 1ft..... ~ CO"'alnecf In the leased
",..rnIset hcIudItrg. Ilut nIIf hItood 10. ~ Il'OeI or cons!lUI:Icln .... OOCIilltllhll '"- ~rniMs
or _n' "'Y /nt8MIf e/ LBSOIf Ihelwin.
25. fAImAL INVAI. If anv '*wi. ~CInt. c;." ,4lfon or Piou...... d" '- sho. be
ruled by Q eM 01 GOI'4>A,lI JuJlJehllo.'l. III be tIWCIIId, YCIICt <<_.f_.....I<<I11. he All............
..... .........I~ !Lt ran:. and eIIIct ClllClIIlllII&ot no war be ~ ~ 'lTle.d or 1I\v'*'a'*d.
26. -..-nI'>Ir'..... AND HIIWWII: SIIB Execultot. or.. __In no war aIFeob any
of !he PQffJe,' __aIIJJfW PlA'!UanI to Olaptw 241. I'Iadda Slatules. 1M 01:l......"'^ e/ A. II...... or
the ~ 01_ J:lJ-', .Ill~'" lUId NIIcnc: __ Qn .10... OM1ed IcJrw:IIIJ /!>>cI Uwl '"- PIlar
Oulhcl1a......,. tlHn oblahed tam..., Oe,l_I.._d 01 state. 0IvlIIan of HilI""~ ""n__
71. ~~ _WI"t "'~.--- lAHQJ ,",illICIte dclet not ~.. loW at anv Ionds
lac;gleclwalA._d dthe IIleII'I 0I'6.:1.....r tiahwalerlne Ofpt\'1CIM. "'-.................. bay.
ctuarv. or afh.......... ~ or... -. ....th. .. _ .......~ , '.0
28. DIIPI........ twIftIWlU..~ fhiI '-e IoI!llS!C:Uftld n ..~ ...ltoL... each 01 Which
stIaIlle eoo. A:jlo..a an Cllfglnrllfor all """PClIes.
27. ENMI! U--AImING lh/s lease ..IS forth the anh ~ between fl1e
PlltllaJ and shqf atll\> be ......, wflh .... prbr ~ <>pprovaI 01 LESSOR.
30. ....-...~ ~~.E:N,Q ,L!SSEE shall malnlllln 11>>...... Plc,..er1y COntained
within In.. IeaMG ~ .. a..... 01 QOQd c..;1d....., inc~ but nollimiled 10. keeping h
lBQHla t:lntmise; fioee at fIQrh ClIIftw and -v CIIl bullda,g ar1d mf.~ COdes in lhe loc:o'lon
sUuoted.
.j
Aurft-2t1V4 1~:14
<.....1lE COlIT\' ilSllIEtl1fG
>.0I2Ji<<,.
T.... ~ enlVlI Foil I
31. 1""___"" lAW nw -- ""'" ~ _d by ana ""'_led QOGu,..fhg '" Iha
laws of the Stat. 01 RaIl:Ia.
32. SICI1nN l""&MlnoM ~ ____. ancI ottw r 1lIj:'" con~ In .. Iecue
<no lar ntlef8l'llle ~ onlv. ancf am 1ft no 'Wr:ty lnNncIecI to....... & d.......t. c:Io>IIre or r_
the ac . lIlChtnf or InIoont of lhls __ Ct any ~vlllons Ihowltof.
WIf&EOf. the pcries ~ __ __ Ihk __ 10 be -.::utecI an the
.....e wrtflen.
COUNJY CO"'......'ONBIS
.A~
~ -.
,~-~~-
-""'lChclIrmon
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ASSIGNMENT OF lEASE
KNOw AU. MEN BY THESE I'ftESENTS THAT CANAUs HOl.OlNG CO/U'. the ..... under
'- 1... . ._~ ...., IZIOIII997 chrou&h 1113012017 .......... the ....... po _.' , desc:ribect on
........" - I.......... ~ in Monroe c:-..y. Florida.
HEREBy....... and lnnIfers to EAATHMAIUC COMPANIES, u.c. a AoricIa ~ ~
........-~'. as A".-- herein. all rl&ht. lIde and ___ in sold Ieue for and ....... .... '- and r _..........
d.... tlInn d sold Leue. and subjoIa all d lhe .-. ......._.1> and condid".a d Aid .....
., 0):>
r / TO HAVE AND )'0 HOLD the ...... unto lhe saki Ass/aMe from the~ day d
r~"') . ~,,~
. ~
J~~ WH~. Jhe unde. .....ed .... signed and ...... this IIlltrUment on the ~
~y~~~
s
.111
\:
_and_
of:
.,
By;
JO
t!'r7 ,. ~. ,~ '_" d<~
JK~ t'J .. c.vd-H. ~\I<-+ ~~. /,\. -""-<"'&~"'1 f~A
.,J eM ~~..., ,...DI a,.".~ \1.1..- cr----
Ctff~.. "Jf<L- .414J- ACCEPTANCE OF LEASE -/ ~
~'~ NANCI D. wYNN
\W... MYCOMMlSSIONI10DG0m3
It...p." EXPtRe&M.rl.2OCl5
1~ARV R..tQwy~.~ll'Ic.
KNOW A1JL MEN BY THESE PRESENn THAT: EAATHMAAK COMPANIES, LCe, a liiIilied
liahiIity company. the Ass/aMe named in the foI~. Auianment d L.se.1weby ac:cepts lhe LAue
reIemod to 'therein and hereby ..... to abide by 1M tlIrm. and condicio... dIereaf and to pay the rent
"*->.
IN WITN~; WHEREOF. lhe underslaned .... signed and sealed chi. illSU"ument on chis ~y d
F~. -:~ iLW'/ .
~.::.-:~
~~/
~U<
c:o........ +ll "i I...A-K.I!-
~ '1 0I-/~o/<'-o ~
. -J, k J C/"'^"~
J _~~c.vd":";" ~ ~ ~ .5..J.- ..t.o~ Y
/~~ r-- ~ . --'-""~1 :fa '1 A I '7
""--rr ....."., ~ 11.I4 "-I"" n U1V~... I . A
CONSENT OF LANDLORD
KNOW ALL MEN BY THESE PRESENTS THAT: MONROE COUNTY, a politica' subdivision of the Slale
of Florida. the Lessor named in the forgoing Lease, hereby consent to the assignment of such Lease from
CANALIS HOL[)INO CORP., to EARTHMARK COMPANIES, LLC, a Florida limited liability company,
subject all of the !Cents, agreements and conditions of said lease.
IN WITNESS WHEREOf. the undersigned has signed and sealed this instrument on this 18th day of
February ,2004 .
Attest: --
~f, afRIe
dt.....-
CLERK
. ~HCM PHOENIX LAW PARTNERS
(TUE)JAN 18 2005 17:16/ST.17:12lNo. 6660277589 P 2
,
"'
CONSENT OF LANDWRD
TO ASSIGNMl!:NT
KNOW AIl. MEN BY THESE PRESENTS THAT: The: Monroe County Board of
County Commi8llionera, the Lessor in the 1_ entcnld into November 12, 1997, with
Om_Ii. Holding Corp.. and previously assianed to Ear1Jmuuk Companies, u.c, docs
hereby cousent to the ll$signment or said ~ ftom Earthmm: Companies, u.c. to its
wbolly owned subsidiary Ocean Sumiac Auociates LLC, a Florida Iimitc:d liability
company, 811bjcct to all the I'ClIIt5, agrccmcnta and conditiOJlll of said 1_.
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS
wh.-- o/~/-
Murray Ncl8ol1, .}OJ "----.
EXHIBIT C
Conceptual Site Plan
Reference conceptual site plan as prepared by Erickson AssociateslHiJI Glazier
Architects for "Mandalay MCU Application", SP-I, dated July 3], 2007, and submitted
with application.
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EXHIBIT D
Legal Description of Land to be Dedicated to Monroe County
Part Tract SA, Amended Plat of Mandalay Subdivision, Plat Book 5-25, Key Largo,
Monroe County, Florida
FUE#005S4940-000300
Section 06, Township 62, Range 39
Property Information for 1680435
Page J of2
MONROE COUNTY PROPERTY ApPRAISER
PROPERTY INFORMATION FOR:
Propert.y Detaills
OWNEROFRH'PBU
Alternate Key: ] 680435
RE Number: 00554940-000300
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