2nd Amendment 03/18/2015 ---,1,..,,_ - - - _
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-,, I , � � CLERK OF CIRCUIT COURT COMPTROLLER
i , , ,Ad
,c MONROE COUNTY,FLORIDA
DATE: March 30, 2015
TO: Christine Hurley, Director of
Growth Management
ATTN: Mayra Tezanos
Executive Assistant
FROM: Lindsey Ballard, D.C -
At the March 18, 2015, Board of County Commissioner's meeting the Board granted approval
and authorized execution of Item G1 Amendment No. 2 to the 100-year Lease Agreement between Monroe
County and Habitat for Humanity of Key West and Lower Keys, Inc. (Habitat), to retroactively extend a lease for
property on Big Coppitt Key Until March 19, 2017, subject to the conditions that Habitat commence constructions
of twelve (12) affordable housing units by March 1, 2016, and receive certificates of occupancy for the
construction of the twelve(12)affordable housing units by March 19, 2017.
Enclosed is duplicate originals executed on behalf of Monroe County,for your handling. Should you
have any questions,please feel free to contact me.
cc: County Attorney (Electronic Copy)
Finance (Electronic Copy)
File
-El'IMLF-61
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500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663
3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
c� cANNED 88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146
This Instrument Prepared By:
Peter H. Morris, Assistant County Attorney
Monroe_County Attorney's Office, FBN: 104101
2798 Overseas Highway, Marathon, FL 33050 morris-peter@monroecounty-fl.gov
AK# 1201758 SECOND AMENDMENT TO LEASE AGREEMENT
RE# 00156320-000000
THIS SECOND AMENDMENT TO LEASE AGREEMENT, dated this day of
March, 2015, by and between MONROE COUNTY, a political subdivision of the State of
Florida (hereinafter referred to as "LESSOR"), and HABITAT FOR HUMANITY OF KEY
WEST AND LOWER FLORIDA KEYS, INC., a Florida non-profit corporation (hereinafter
referred to as"LESSEE"):
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain 99-year Lease Agreement
(hereinafter "Lease") dated the 20th day of May 2009, for the property more particularly
described therein (hereinafter "Property") for the construction and development of twelve (12)
Affordable Housing Units (hereinafter "Affordable Housing Units"), said Lease being recorded
in the Public Records of Monroe County at OR Book-2431,Page-739, and attached hereto and -
incorporated herein as Second Amendment to Lease Agreement Exhibit"A"; and
WHEREAS, Lessor and Lessee entered into that certain First Amendment to Lease dated
the 17th of February 2010, extending the term of said Lease one-year in order to comply with
Florida Statute § 196.199(2)(b), and eliminating the annual $10.00 rent due under the original
Lease in order to comply with Florida Statute § 196.199(7), said First Amendment to Lease
being recorded in the Public Records of Monroe County at OR Book 2456, Page 2377, and
attached hereto and incorporated herein as Second Amendment to Lease Agreement Exhibit"B";
and
WHEREAS, the Lessee has represented that it may be unable to construct twelve (12)
Affordable Housing Units on the subject property due to a sewer utility easement's, recorded in
the Public Records of Monroe County at OR Book 2276, Page 1854, limitation of the property's
buildable area; and
WHEREAS, Lessor and Lessee desire to enter into this Second Amendment to Lease
Agreement to reduce the number of Affordable Housing Units to be constructed on the subject
property from twelve(12)units to ten(10)-to-twelve(12)units; and
WHEREAS, the Lessee did not meet the foregoing limitations of time for completion of
the project due to a lack of funding; and
WHEREAS, Article XIV, Section 14.01(a) of the Lease provides that the Lessee must
commence construction of the project by December 31, 2009, and that the project shall receive
Certificates of Occupancy for the subject Affordable Housing Units by December 31, 2011; and
WHEREAS, Article XIV, Section 14.01(a) of the Lease provides that the foregoing
limitations of time for the completion of the project may be extended by written agreement
between the parties hereto; and
1
WHEREAS, Lessor and Lessee desire to enter into this Second Amendment to Lease
Agreement to extend the date by which Lessee must commence construction of the project to
March 1,2016; and
WHEREAS, Lessor and Lessee desire to enter into this Second Amendment to Lease
Agreement to extend'the date by which the project must receive Certificates of Occupancy for
the ten(10)-to-twelve(12)Affordable Housing Units to March 19, 2017;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged,the undersigned parties agree as follows:
1. The recitals contained herein are true and correct and incorporated herein by
reference.
2. The original Lease Agreement between the parties is attached to this
Amendment and made a part of it.
3. The First Amendment to Lease between the parties is attached to this Amendment
and made a part of it.
4. Article XIV, Section 14.01(a) of the Lease Agreement is hereby amended to read
as follows:
(a) Initial Lessee shall commence construction of the Project by March 1, 2016,
and shall receive certificates of occupancy for the ten(10)-to-twelve(12)units
by March 19, 2017. The foregoing limitation of time for the completion of the
Project may be extended by written agreement between the parties hereto.
5. Any and all other references in the Lease, as amended, to"twelve(12) [units]" are
hereby struck, and substituted with"ten(10)-to-twelve(12) [units]."
6. This Amendment is retroactive to December931, 2012, and it is the intention of
the parties that the Lease Agreement be continuously effective from January 1,
2013 through March 19, 2017, subject to the terms, covenants, conditions, and
provisions of the Lease Agreement and this Amendment.
7. All of the other terms, covenants, conditions, and provisions of the Lease
Agreement dated May 20, 2009, except those expressly modified and rendered
inconsistent by this Amendment, remain in full force and effect and binding upon
the parties.
8. Each party agrees that they have authority to sign this Amendment on behalf of
each party and represents and warrants that such person has the full right and
authority to enter into this Amendment on behalf of such party and to fully bind
such party to the terms and obligations of this Amendment.
2
9. This Amendment is binding on the successors and assigns of the parties.
IN WITNESS WHEREOF, the undersigned executed this Second Amendment to Lease
Agreement this 13 day of March,2015.
LESSOR: '-, `` :741' : ,��
MONROE COUNTY BOARD OF i� A .I i
COUNTY COMMISSIONERS ��}ty,¢i (SEATS
ATTEST•=fayHEAVILIN CLERK
By: �o., ,e y.:
May L. ic91ha,.a '" Deputy Clerk
Monroe County Attorney MONROE COUNTY ATTORNEY '" `
Approved as to Form:
APPROVED AS TO FORM,
By: w PETER MORRIS
Peter H.Morris,Assistant County Attorney ASSISTANT C UNTY ATTORNEY
Date: 3S-72DIc
LESSEE: WITNESSES AS TO LESSEE:
HABITAT FOR HUMANITY OF
KEY WEST AND LOWER KEYS, Signed, sealed and delivered
INC., a Florida non-profit
corpora '
By: tA.1 4o
Mark Moss,Executive Director Witness as to Lessee
itness as to Lessee
STATE OF FLORIDA
COUNTY OF MONROE t Q ,'�j,
BE IT KNOWN,That on the 1 L) day of AA ,two thousand and fifteen,before me,
a Notary Public in and for the State of Florida, County of Monroe, duly commissioned and sworn,
personally came and appeared MARK MOSS, as Executive Director of Habitat for Humanity of Key
West and Lower Keys, Inc., a Florida non-profit corporation, to me personally known or has produced
as identification.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal of
office the day and year last above written.
[Seal] . ?- ANNA S.M.SYMINIMM
'•' NOTAGn. PUBLIC
�r..• STAT! . F f FLORIDA
Comm#EE184361 OTARY P IC
Expires 3/28/2016
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Fiied a Recorded in Official Records of
� I MONROE COUNTY DANNY L. KOLNAGE
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1 Doe! 1758774
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o f -a M d k 1 LEASE
33os 2- BETWEEN
MONROE COUNTY
"LESSOR"
AND
HABITAT FOR HUMANITY OF KEY WEST AND
LOWER FLORIDA KEYS,INC.
"LESSEE"
DATED /tiff , 2O,, gO ag
,
•
Big Coppitt RE#00156320 Emerald, Sa11....
hire US1
EXHIBIT Page 1 of 45
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Doc, 1738774
Bkp 2431 Pg8 740
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Table of Contents
Article Title Page No.
I Definitions 4
II Demised Premises 7
III Term 8
IV Rent 8
V Non-Subordination 9
VI Payment of Taxes and Utilities 9
VII Mechanics'Liens 12
VIII Governing Law, Cumulative Remedies 13
IX Indemnification of Lessor 13
X Insurance 14
XI Insurance Premiums 18
XII Assignment/Transfer i8
XIII Condemnation 21
XIV Construction 22
XV Mortgage Financing 24
XVI Default 29
XVII Repair Obligations 31
XVIII Additional Covenants of Lessee/Lessor 32
XIX Representations,Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use 34
XX Miscellaneous 34
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Exhibit A Legal Description 41
Exhibit B Property Depiction 42
Exhibit C Commencement Date Agreement 43
Exhibit D Letter of Acknowledgment 44
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OCCUPANCY AGREEMENT AND GROUND LEASE
THIS Agr ement and Lease made and entered into in Key West,Monroe County,Florida,on
this ay of Th i 07741 by and between MONROE COUNTY
(referred to as the"Lessorto "Owner") and HABITAT FOR HUMANITY OF KEY WEST
AND LOWER FLORIDA KEYS, INC.,a Florida non-profit corporation (referred to as the
"Lessee"or"Occupant").
RECITALS
WHEREAS,Lessor is the owner in fee simple of the property located at what is now
known as,Part of Tract B, Porpoise Point Section 5 on Big Coppitt Key,Mile Marker 10.5
Bayside, at the Corner of Emerald Dr.,Sapphire Dr.,and US 1,
RE #00156320-000000 ,Monroe County,Florida;and
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 sale or rental use twelve
affordable housing units for qualified owner or tenant occupants;
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 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. The singular includes the plural and
the plural includes the singular when referenced herein.
"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 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
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the specified sales price or rental rates for moderate income housing as set forth in the Land
Development Regulations in effect at the time of execution of this Lease where the effect
upon an owner/Sublessee/mortgagee would be to divest such person or entity of value upon
which such person reasonably and fairly relied to their detriment. The substance of the
Affordable Restrictions may be freely amended in the Lessor's legislative discretion,
particularly with respect to administrative,monitoring and enforcement mechanisms,but
any such amendment shall not materially diminish the lawfully established and equitably
vested resale value or the reasonable alienability of"home-ownership"Affordable Housing
Units, or in the case of rental-only units or projects, shall not materially and adversely
diminish or interfere with the Lessee's substantive benefits conferred under this Lease or any
of its non-administrative terms. However, Lessor may restrict Affordable Housing Unit
resales and rentals to use as"Employee Housing"as defined in the Affordable Restrictions,
as amended from time to time. Moreover, Lessor may establish in its Affordable
Restrictions"means"or"assets"criteria that limit potential buyer or rental pools. Any such
amendment shall not increase Initial Lessee's responsibilities as set forth herein. It is the
intent and purpose and shall be the effect of this Lease and any Affordable Restrictions to
ensure that the affordability of Affordable Housing Units and dedicated real property upon
which they are located is maintained and enforced such that any administrative rule,policy
or interpretation thereof, made by Lessor or its designees relating to the maximum total
amount of consideration and cost permitted to be in any way involved in a purchase or rental
transaction(including but not limited to purchase price,lease assignment fees,rents or any
other compensation given or received in or"outside"of a related transaction) shall never
exceed the affordability criteria reasonably established by Monroe County for the dwelling
units involved. In every case,the construction and interpretation of terms,conditions and
restrictions imposed by this Lease and the Affordability Restrictions shall be made in favor of
ensuring that long term affordability benefits for the respective housing resources inure to
the benefit of Monroe County,its economy and its community character
"Commencement Date"shall mean the date when Initial Lessee receives a Certificate
of Occupancy for the first Affordable Housing Unit.
"Demised Premises" shall mean the property leased pursuant to this Lease for
development of the Affordable Housing Units. The Demised Premises is legally described on
attached Exhibit A. 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 Habitat for Humanity of Key West and the Lower Florida Keys,
Inc.
"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
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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.
"Project"shall mean the required development of the Demised Premises for a twelve
unit complex for sale or rent for affordable employee housing, primarily the required
construction of Affordable Housing Unit(s) 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.
"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.
"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 ofa form and type customarily used with purchase
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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.
"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 acquires
or renews his interest in the Affordable Housing Unit,qualifies for"Affordable Housing"as
in the Monroe County Code and who is gainfully employed at the time of their rental or
purchase. 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 or disability, 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.
"Term" shall mean the Commencement Date, and continuing for ninety-nine (99)
years thereafter, plus any agreed upon extension of this Lease, and unless otherwise
permitted by Lessor,all Subleases and rights or interests granted thereunder shall terminate
at the end of the Term.
ARTICLE II
Demised Premises
Section 2.01 Lessor's Demise. Upon the 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:
Part of Tract B, Porpoise Point Section 5 on Big Coppitt Key,Mile Marker 10.5
Bayside, at the Corner of Emerald Dr., Sapphire Dr.,and US i,
RE#oo15632o-000000,Monroe County,Florida
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
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(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.
ARTICLE III
Term
Section 3.of Term. To have and to hold the Demised Premises for a term of ninety-
nine(99)years commencing on the Commencement Date,and ending ninety-nine(99)years
thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter
provided(the"Termination Date"). Lessee shall be given possession on the Effective Date
and the terms and conditions set forth herein shall be binding on the parties as of the
Effective Date. Lessee shall have the right to occupy the Demised Premises as of the Effective
Date in order to allow Lessee to commence construction,as well as other activities related to
the development and construction of the Project. As herein set forth, the Term will not
commence until an 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 executed in substantially the same form as that set forth in
Exhibit C hereto.
ARTICLE IV
Rent
Section 4.01 Annual Base Rent. Lessee covenants and agrees to pay to Lessor
promptly when due,without notice or demand,and without deduction or offset,Annual Base
Rent throughout the Term of this Lease beginning on the Commencement Date, in the
amount 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.
Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other
amounts payable by Lessee to Lessor under the terms of this Lease,shall be payable in lawful
money of the United States which shall be legal tender in payment of all debts and dues,
public and private,at the time of payment,each payment to be paid to Lessor at the address
set forth herein or at such other place within the continental limits of the United States as
Lessor shall from time to time designate by notice to Lessee. Except for any income tax
payable by the Lessor, Lessee shall pay any and all taxes,including any local surcharge or
other tax,on the Rent payable pursuant to this Lease in addition to the sums otherwise set
forth herein.
Section 4.03. 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 ownership,leasing,
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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(zo)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.o. 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. From the Effective Date to the Commencement
Date and as additional Rent during the Term of the Lease,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,
Iicenses and permit fees and other governmental charges,general and special,ordinary and
extraordinary, unforeseen and foreseen, of any kind and nature whatsoever,which at any
time during the Term of this Lease may be assessed,levied, confirmed, imposed upon, or
grow or become due and payable out of or in respect of,or become a lien on,the Demised
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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,unless
Lessee fulfills all such obligations pursuant to Section 6.01,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 a lien on,the Sublessee's
interest in the Demised Premises,or otherwise arise out of the revenue receivedby 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 taxes, rates, levies,
charges or assessments required to be paid shall belong to Lessee.
Section 6.04 Mode of Payment. The Lessee(and any Sublessee,as to their specific
interests in the Demised Premises)shall pay the taxes and other charges as enumerated in
this Article VI and shall deliver official receipts evidencing such payment to the Lessor
(Sublessees shall only deliver receipts as may be required by the Affordable Restrictions),
which payment of taxes shall be made and the receipts delivered, at least thirty(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,
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
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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(60)days before the tax item or
items proposed to be contested would otherwise become delinquent.
Section 6.05 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 6.06 Sublessee's Default. If a Sublessee shall fail,refuse or neglect to make
any of the payments required in this Article,then the Lessor may,but shall not be required
to, pay the same, and the amount or amounts of money so paid, including reasonable
attorneys'fees and expenses which might be reasonably incurred because of or in connection
with such payments,together with interest on all such amounts,at the highest rate allowed
by law shall be repaid by the Sublessee to the Lessor,upon the demand of the Lessor,and the
payment thereof may be collected or enforced by the Lessor in the same manner as though
such amount were an installment of Rent specifically required by the terms of this Lease to
be paid by the Sublessee to the Lessor, upon the day when the Lessor demands repayment
thereof or reimbursement therefor of and from the Sublessee;but the election of the Lessor
to pay such taxes shall not waive the default thus committed by the Sublessee.
Notwithstanding the foregoing, Sublessee shall have the right to contest any taxes and
assessments levied against Sublessee; and provided Sublessee files the appropriate
documentation to contest said tax or assessment, Sublessee shall not be in default of this
Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be
construed to prevent or inhibit the assessment measures and collection remedies lawfully
available to any taxing authority.
Section 6.07 Appraiser to Respect Effect of Affordable Restrictions. It is the intent of
the parties that any appraisal of any portion of the Demised Premises for taxation,public
assessment or utility service purposes fully reflect the effect of this Lease and the Affordable
Restrictions on the lawfully realizable value of relevant portion(s) appraised, or where
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permissible by state law,"income approach"or other method of calculation.
ARTICLE VII
Mechanic's Liens
Section 7.01 No Lien. Neither the Lessee nor any Sublessee shall have the power to
subject the interest of the Lessor in the Demised Premises to any mechanic's or
materialmen's lien of any kind 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(30)days after the Lessor shall have been given written notice of
such claim and shall have transmitted written notice of the receipt of such claim unto the
Lessee or Sublessee,as the case maybe,(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(30)days,in releasing the Lessor and the title of the Lessor from such claim;
and the Lessee covenants and agrees, with respect to any lien or claim attributable to it,
within such period of thirty(30) days, so as to cause the affected portion of the Demised
Premises and the Lessor's interest therein to be released from the legal effect of such claim.
Section 7.03 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
demand of the Lessor,and the payment thereof maybe collected or enforced by the Lessor in
the same manner as though such amount were an installment of Rent specifically required by
the terms of this Lease to be paid by the Lessee to the Lessor,upon the day when the Lessor
demands repayment thereof or reimbursement therefor of and from the Lessee; but the
election of the Lessor to pay such amount shall not waive the default thus committed by the
Lessee.
Section 7.04 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
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required to,pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so paid,including reasonable attorneys'fees and expenses which might be reasonably
incurred because of or in connection with such payments,together with interest on all such
amounts at the highest rate allowed by law,shall be repaid by the Sublessee to the Lessor,
upon the demand of the Lessor,and the payment thereof may be collected or enforced by the
Lessor in the same manner as though such amount were an installment of Rent specifically
required by the terms of this Lease to be paid by the Sublessee to the Lessor,upon the day
when the Lessor demands repayment thereof or reimbursement therefor of and from the
Sublessee;but the election of the Lessor to pay such amount shall not waive the default thus
committed by the Sublessee.
ARTICLE VIII
Governing Law.Cumulative Remedies
Section 8.01 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 9.01 Indemnification by Lessee. During the Term of the Lease,and from the
Effective Date to the Commencement Date during which Lessee shall be entitled and
obligated to maintain site control of and insurance for the Demised Premises for
construction of the Affordable Housing Units, Lessee will indemnify, defend and save
harmless the Lessor against any and all claims,debts,demands or obligations which may be
made against the Lessor or against the Lessor's title in the Demised Premises,arising out of,
or in connection with,or in any way related to the Demised Premises.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
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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 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
Ioss 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.
Section 9.03 Policy Limit Changes. The policy limits for the comprehensive liability
insurance may be reviewed by Lessor every five(5) years and adjusted upward,if,in the
reasonable discretion of Lessor such increase in coverage is prudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance
Section io.ol 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
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shall not be less than the full Replacement Cost value ofthe 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 unreasonably withheld),as the case maybe,
of any building or buildings damaged or destroyed by fire,flood,windstorm or other casualty
for which insurance money shall be payable and shall be paid out by the Lessor and the
Lessee from said joint account from time to time on the estimate of any reliable architect
licensed in the State of Florida officially overseeing of such reconstruction and repair,
certifying that the amount of such estimate is being applied to the payment of the
reconstruction or repair and at a reasonable cost therefor;provided,however,that the total
amount of money necessary for the reconstruction or repair of any building or buildings
destroyed or damaged has been provided by the Lessee for such purpose and its application
for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises,or any part thereof,and as often as any portion of said Demised 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
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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 (io)
years of the Term of this Lease,Lessee,if not then in default under this Lease and if there is
no leasehold mortgage or other similar encumbrance on the Lessee's interest in the Demised
Premises, may elect to terminate this Lease by written notice to Lessor within thirty(30)
days after the occurrence of the destruction. In the event 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 (io) 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 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 $4000,000
Products/Completed Operations $1,000,000
[coverage for one(i)year after project completion]
Each Occurrence $i,000,000
Contractual Liability $i,000,000
Additional Named Insured: Lessor,or its assigns or designees,as from time to time
designated by written notice to Lessee, shall be included as additional insureds for
Commercial General Liability.
Section 10.03 Environmental Impairment Responsibility. The Lessee and/or its
contractors acknowledge that the performance of this Lease is,or maybe,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 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 by mediation according to the rules of the Sixteenth
Judicial Circuit in Monroe County, Florida. 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
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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 io.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 maybe 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 mob 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 may be, shall be paid to the Lessor and it will be at the
Lessor's option to terminate the Lease,unless terminated by Lessee within the last ten(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 1o.o7 Direct Repayment. 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 any part thereof shall in any way affect the validity or
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enforceability of such insurance insofar as Lessor,and that(ii)such policy of insurance shall
not be changed or cancelled without at least thirty(30)days written notice to the Lessor,and
that (iii) the Lessor shall not be liable for any premiums thereon or subject to any
assessments thereunder.
Section 10.09 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 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 11.01 Insurance Premiums. The Lessee shall pay premiums for all of the
insurance policies which the Lessee is obligated to carry under the terms of this Lease. In the
event Lessee fails to obtain and pay for the necessary insurance,Lessor shall have the right,
but not the obligation,without notice to Lessee,to procure such insurance and/or pay the
premiums of such insurance, in which case Lessee shall repay Lessor immediately upon
demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies
with respect to procurement of such insurance and/or payment of such insurance premiums
in the event a future subsequent partial interest holder(e.g.,Sublessee,Association)fails to
obtain and pay for the necessary insurance.
ARTICLE XII
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee. Lessee may assign or sublease the
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affordable unit(s) using its own ground lease as long as it contains provisions for the
affordable housing restrictions as set forth in this Lease and in the Monroe County Code and
is consistent with other provisions herein. 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
Unit(s)are to be developed as units for rent or sale 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.
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee. Initial Lessee
shall be authorized to sell the Affordable Housing Units to individuals qualified to
own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record. Notwithstanding anything contained herein to the contrary, all
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's
requirements of moderate or lesser income affordable housing,adjusted for family size,and
any other applicable Affordable 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.
Section 12.03 Assignment/Transfer by Sublessees. At such time as any individual
Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable
Housing Units and interests,the Sublessee shall be required to follow the procedures set
forth herein and any procedure that may be set forth in the Affordable Restrictions,and any
conveyance, transfer or other disposition and the acceptance of such transfers shall be
automatically deemed an agreement to the conditions set forth herein.
Section 12.04 Required Notice of Restrictions. Any conveyance,lease,assignment,
grant or other disposition of any interest made with respect to any portion of the Demised
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
•
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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.
The book and page numbers of the first recorded page of this Lease 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.
If Lessee or Sublessee can not find a suitable purchaser or sub lessee,or qualified tenant,for
the Affordable Housing Unit(s) Lessee shall notify Lessor who may provide Lessee with a
qualified person or Lessor may have the right of first refusal to purchase the premises.
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
PERSONAL PROPERTY.
Section 12.06 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,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 D. All spouses, heirs,
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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 extendto 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. Lessee may not charge more than one half of one
percent (.005%) administrative fee based on the sales price for the transfer of
improvements from one sublessee to another.
ARTICLE XIII
Condemnation
Section 13.0f Eminent Domain:Cancellation. If,at any time during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain,there shall be such division of the proceeds and.
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (30) days after such award has been
made, then the matters in dispute shall be determined in accordance with mediation
according to the rules of the i6th Judicial Circuit in Monroe County. Such determination
made by the mediation shall be binding on the parties. If the legal title to the entire Demised
Premises be wholly taken by condemnation,the Lease shall be cancelled.
Section 1.3.o2 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
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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 14.01 Requirement to Construct Project.
(a) Initial Lessee shall commence construction of the Project by December 31,
200%,and shall receive certificates of occupancy for the twelve units by December 31.2011.
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,
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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 agreedthat
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 4.02,shall include city,county or
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or State code or building inspectors, and the like,without limitation. Initial Lessee shall
permit building and code inspectors'access customary to the performance of their duties
related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
14.03 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,Iabor 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,
except financing delays or delays caused by economic conditions.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 15.01 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, 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
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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 15.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(30)days from the date the notice of default was mailed to the
mortgagee(s)within which to cure such default.
(d) In the event of the termination of this Lease with Initial Lessee for
defaults described in this Article XV, or of any succeeding Lease made pursuant to the
provisions of this Section 15.01(d)prior to the cure provisions set forth in Section 15.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.o1(d) shall not require any
execution,acknowledgement or delivery by the Lessor in order to become effective as against
the Lessee(or any Sublessees)and the Lessee(and any Sublessees)shall be deemed to have
executed,acknowledged and delivered any such new Lease immediately upon receipt by the
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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 providedin this Section 15.01(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 15.01(f)below.
(f) In the event that a()leasehold mortgagee(s)shall become the owner or
holder of the Lessee's interest by foreclosure of its(their)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 the 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
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be required from the Lessor,and the Lessor agrees to deliver in recordable form a certificate
to any proposed leasehold mortgagee(s), purchaser(s), assignee(s) or to Initial Lessee,
certifying(if such be the case)(i)that this Lease is in full force and effect;(ii)that the Lessor
has no knowledge of any default under this Lease, or if any default exists, specifying the
nature of the default;and(iii)that there are no defenses or offsets which are known and may
be asserted by the Lessor against the Lessee 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).
G) So long as the Initial Lessee's interest in this Lease shall be mortgaged to
a()leasehold mortgagee(s),the parties agree for the benefit of such leasehold mortgagee(s)
that the Lessor shall not sell, grant or convey to the Initial Lessee all or any portion of the
Lessor's fee simple title to the Demised Premises without the prior written consent of such
leasehold mortgagee(s). In the event of any such sale,grant or conveyance by the Lessor to
the Initial Lessee,the Lessor and the Lessee agree that no such sale, grant or conveyance
shall create a merger of this Lease into a fee simple title to the Demised Premises. This
subparagraph(j)shall not be construed to prevent a sale,grant or conveyance of the Lessor's
fee simple title by the Lessor to any person,firm or corporation other than the Initial Lessee,
its successors,legal representatives and assigns,so long as this Lease is not terminated.
(k) Reference in this Lease to the Initial Lessee's leasehold mortgagee(s)
shall be deemed to refer where circumstances require to the leasehold mortgagee(s)'s
assignee(s);provided that such assignee(s)shall record proper assignment instruments in
the Public Records of Monroe County,Florida,together with written notice setting forth the
name and address of the assignee(s).
(I) 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).
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(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 is.o2 Permitted Mortgages for Sublessees(Unit Owners). The Lessee shall
incorporate the following into its sublease:
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 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
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.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
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(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 and any mortgagees ten(lo) 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 and Mortagees shall not be deemed to be in default under this Lease unless
Lessor shall first give to Lessee and Mortagees thirty(30)clays written notice of such default,
and Lessee fails to cure such default within the immediate thirty(30)day period thereafter,
or, if the default is of such a nature that it cannot be cured within thirty(30)days, Lessee
fails to commence to cure such default within such period of thirty (30) days or fails
thereafter to proceed to the curing of such default with all possible diligence. Mortgagees
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. In any action by Lessor asserting a
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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 maybe
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 may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee, or where statutory abandonment or unclaimed
property law permits, disposed of in any reasonable manner by Lessor without liability or
any accounting therefore.
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 its 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 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 maybe 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
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of recovering the Demised Premises,which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.01 Lessor's Right to Perform. In the event that Lessee, by failing or
neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty(30)
days after receipt of written notice from Lessor specifying the nature of the act or thing to be
done or performed,then Lessor may,but shall not be required to,do or perform or cause to
be done or performed such act or thing (entering on the Demised Premises for such
purposes,with notice,if Lessor shall so elect),and Lessor shall not be or be held liable or in
any way responsible for any loss,inconvenience or annoyance resulting to Lessee on account
thereof, and Lessee shall repay to Lessor on demand the entire expense thereof,including
compensation to the agents and employees of Lessor. Any act or thing done by Lessor
pursuant to the provisions of this section shall not be construed as a waiver of any such
default by Lessee,or as a waiver of any covenant,term or condition herein contained or the
performance thereof,or of any other right or remedy of Lessor,hereunder or otherwise. All
amounts payable by Lessee to Lessor under any of the provisions of this Lease,if not paid
when the amounts become due as provided in this Lease,shall bear interest from the date
they become due until paid at the highest rate allowed by law. Lessor shall have the same
rights set forth in this Section with respect to any future subinterest holder's respective
portion of the Demised Premises.
Section 16.04 Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.os.Affordable Restrictions. In the event the Lessee or sublessee fails to
comply with the Affordable Restrictions at any given time or any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion,as they pertain to their respective interests in or portions of the Demised Premises,
such an occurrence will be considered a material default by the offending party. Should the
foregoing type of use default occur with respect to only one or more subtenants'portion(s)of
the Demised Premises, then the default termination provisions provided for in this
subsection, shall apply only to those subtenant(s) and sublease(s) in default. In the
foregoing event,Lessor(or the Initial Lessee(or its assigns)in the event of and with respect
only to a default by a particular Sublessee) may terminate the subleases and tenancies
involved, as the case may be, subject to Lessor's compliance with any applicable default
notice provisions provided elsewhere in this Lease and Lessee's,and Mortgagees 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 17.o1 Repair Obligations. During the continuance of this Lease the Lessee,
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and every Sublessee with respect to their leased or purchased portions of the Demised
Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures,
landscaping and equipment which are brought or constructed or placed upon the Demised
Premises by the Lessee,and the Lessee shall not suffer or permit any strip,waste or neglect
of any building or other property to be committed,except for that of normal wear and tear.
The Lessee will repair,replace and renovate such property as often as it may be necessary in
order to keep the buildings and other property which is the subject matter of this Lease in
first class repair and condition. Additionally, Lessor shall not be required to furnish any
services or facilities,including but not limited to heat,electricity,air conditioning or water or
to make any repairs to the premises or to the Affordable Housing Units.
ARTICLE XVIII
Additional Covenants of Lessee/Lessor
Section 18.01 Legal Use. The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of affordable
housing dwelling unit(s) 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 18.03 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.
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
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companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee accepts
the property in the condition in which it currently is without representation or warranty,
express or implied,in fact or by law,by the Lessor,and without recourse to the Lessor as to
the nature,condition or usability of the Demised Premises,or the uses to which the Demised
Premises may be put. The Lessor shall not be responsible for any latent defect or change of
condition in the improvements and personalty,or of title,and the Rent hereunder shall not
be withheld or diminished on account of any defect in such title or property,any change in
the condition thereof,any damage occurring thereto,or the existence with respect thereto of
any violations of the laws or regulations of any governmental authority.
Section 18.05 Hazardous Materials. Lessee, its Sublessees and assignees shall not
permit the presence,handling,storage or transportation of hazardous or toxic materials or
medical waste ("hazardous waste") in or about the Demised Premises, except in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines of any
government agency having jurisdiction and the applicable board of insurance underwriters.
In no event shall hazardous waste be disposed of in or about the Demised Premises. For
purposes herein,the term hazardous materials or substances shall mean any hazardous,toxic
or radioactive substance material, matter or waste which is or becomes regulated by any
federal,state or local law,ordinance,order,rule,regulation,code or any other governmental
restriction or requirement and shall include petroleum products and asbestos as well as
improper or excessive storage or use of common household cleaning and landscaping
chemicals, pesticides, batteries and the like, and those materials defined as hazardous
substance or hazardous waste in the Comprehensive Environmental Response Compensation
and Liability Act and/or the Resource Conservation and Recovery Act.
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.
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ARTICLE XIX
Representations,Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use
Section A.m. 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
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 2o.03 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
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mortgagee or their duly authorized agents or attorneys,as long as such mortgagee 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 20.05 Notices. If either party desires to give notice to the other in connection
with and/or according to the terms of this Lease,such notice shall be given by certified mail
return receipt requested or by national overnight tracked and delivery-receipt courier
service, and unless otherwise required to be "received", it shall be deemed given when
deposited in the United States mails or with the courier service with postage or courier fees
prepaid. Nothing herein contained shall be construed as prohibiting the parties respectively
from changing the place at which notice is to be given, or the addition of one additional
person or location for notices to be given,but no such change shall be effective unless and
until it shall have been accomplished by written notice given in the manner set forth in this
Section. Notification of default or requests to modify this Lease shall also be provided
according to the foregoing methods to any mortgagee of the Lessee that has complied with
the provisions of Section 20.03,above. Notification to Lessor andInitial 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: Lessor:
Executive Director County Administrator
Habitat for Humanity of Key West Monroe County
and the Lower Florida Keys,Inc. Gato Building
30233 Overseas Highway 1100 Simonton Street
Big Pine Key FL 33043 Key West,FL 33040
and
MONROE COUNTY ATTORNEY
PO Box 1026
Key West,Florida 33041
Tel. 305-292-347o
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Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee)
consist of more than one person, such persons shall be jointly and severally liable on the
covenants of this Lease.
Section 20.07 Liability Continue&Lessor Liability. All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein,the Lessor's liability under this Lease shall terminate upon such
assignment. In addition,the Lessor's liability under this Lease,unless specifically dealt with
differently herein, shall be at all times limited to the Lessor's interest in the Demised
Premises.
Section 20.08 Captions. The captions used in this Lease are for convenience of
reference only and in no way define,limit or describe the scope or intent of or in any way
affect this Lease.
Section 20.09 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 in.Circuit Court for the 16th Judicial Circuit,
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.
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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. Economic hardship
shall not be considered a basis for such extension.
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
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 and all necessary permits to build the Affordable Housing Unit(s)
described herein within the time specified. 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.
Section 20.t7 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 may be obtained from your county health unit or the
EPA or CDC. Lessee and Sublessees accept responsibility to inspect for mold and take
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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.
Section 20.20 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. Such forums may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162,Florida Statutes,to determine,for and
only by way of one example, and not as any limitation, the facts and legal effect of an
allegedly unauthorized"offer to rent",or,for another example,an unauthorized"occupancy."
However, nothing herein shall be deemed to limit Lessor,Initial Lessee or any mortgagee
from access to an appropriate court of competent jurisdiction where the resolution of any
dispute would be beyond the competence or lawful jurisdiction of any administrative
proceeding.
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Section 20.23 Exceptions to Lease/Rental Prohibition. Under this Lease,rental of
Affordable Housing Units is not prohibited. Lessor or its designee,in its sole discretion,shall
have the right to adopt as part of future Affordable Restrictions provisions to allow
Sublessees the limited privilege to rent or lease their Affordable Housing Units to qualified
persons. Requests for such approval shall be made in accordance with such procedures
Lessor may in the future choose to adopt. It is contemplated, though not promised or
required, that certain limited rental provisions may be adopted in the future for
circumstances such as,for example,but without limitation:
(a) A Sublessee's required absence from the local area for official military duty.
(b) An illness that legitimately requires a Sublessee to be hospitalized for an
extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty(30)days.
Lessor, in its discretion, shall have the right to amend, modify, extend, 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 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.
Signature Page to Follow
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IN WITNESS WHEREOF,the Lessor and the Lessee have hereunto set their hands
and seals,as of the day and year above written.
ATTEST: ` +R
DANNY L.KOLHAGE,CLERK rt4 ROE COUNTY II
� AI
By: :7 g/D9 Mayor I rge Neugant
Witnesses: LESSEE
(1) a4ir- HABITAT FOR HUMANITY OF KEY
WEST AND LOWER FLORIDA KEYS,
INC.
Ott th .E. CO-1-ke
Print Na A2 f
Y
64.caa /lei .ellldss President
Print Name !� ec.Director
STATE OF FLORIDA CAS'
COUNTY OF MONROE
pIC.
The foregoing instrument was acknowledged before me this 0 day
2009,bY_i_ L.' as President of /�1
who is ]personally known to me,or a
drivers license as identification.
• SUSAN K.MILLER
esComm#DD0694330
Notary Pub d Expires 7/11/2011
vacs/ Saida Nolary Assn.Inc
e
VONitor
MON •. *. NEY
coAPPRo lAlltf' �PPR. 'AS O F'
Atf �� n . Ar/AIN ,'4ININ
Page 40 of 45
•
• Deal 1738774
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EXHIBIT A
LEGAL DESCRIPTION
Part of Tract B,Porpoise Point Section 5 on Big Coppitt Key,Mile Marker 10.5
Bayside, at the Corner of Emerald Dr.,Sapphire Dr.,and US 1,
RE#00156320-000000,Monroe County,Florida
Page 41 of 45
•
il
r NORM
i -33 tag!, - { ;y i1 ��
*SI
a n2 NATIONWIDE MODUWt HOUSE
r-Q, , -�� •un 9iE�s I i v d C' PLAN NO.2848 Ouee,w/1259 51+f.
I-- •11tg., 4 ' q3•£�- 3i -.- In ILA
1 _ • '7'": K 6'-0`REAR DECK AND 4'-0'FRONT
{('i M y,f /. .��.• ' •r•' 5' DECK W.'SrAIR.THREE BEDROOM
l - ' _�� jV- ' ` ' .. , { ,,; A- TRIPLE%Unit DIMENSIONS ARE 27'-8`x 45.-I'
kll
N i i ,/' 1i^ n4 W,�d'O'OVERHANG A.ENO ON?.ND ILDOR.
lam• 'L. —7Prn al-ACE
1�
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1`+ 1 5!
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it
kl i rl .3 ,•{ •.a Li ,� vk
0.
j } I Site I'Lan r... :t 1 i
1� l �� h11 f. / 1� v��.}�-�f AREA. ?6 i:92 s
j - - l • ....., to6ti0 RCM,.REi ;1 PER ...
• . 2,E) 3.O661 06 .- I. 4JA,
STG2'iWc s2 R--AItiCa• .5 Eq5 C.F
..v.Ltruae �or,\" „ :0' , 51tiALE 'W.^. 4'd.^3 c 1= _�
SHALE •'I-R£. . . ...35�C TI
I,, %N 61tiA_E FC.iZ... . 42C C= TRI•PLEx COMPRISE,OF
V • swA_E FIVE. .IIC C L: NATIONVADE U.ODUTAR HON''SE
{,� T -ZEJ 36 83Q B F PLAN NO. 1434/38 997 5.r.N•V
I I �� �_'�E AR J. 6 Alai f .. . , 6-Cf REAR DEC&AND 6•D'FRONT
1 ' �' t„aR A 443 565 i - D.C&W!STAIR
"Rr AI•P. UNIT VIMENSION5 ARE I3'-10`X 34.-I
-PQCY AREA 153c oc5:
F IP92/iO13S AREA '1,45'Its t(3'III) VU 2•O`OVC4rIANG FA.END ON ENO FLOOR.
,f,Q
—• , Big C:oppitt !I- I-labitat for I-lumoiity
Porpoise Point Section 5. Tract B , Big Coppitt
Laird Ueberroth, RA -t- Assoc., Architects SE.
1730 s.mb.yr 51.Key West,R 33010
^.a..:111-310 o 301-541-Y01L .,a. LmWRowih..1 .Lc I.a1f.40a.NS.
3.1.:,Le.6 1:01
• Docit 1758774
BM 2431 Pgq 781
This Instrument Prepared By:
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
This Agreement is made as of , 200 by and between
("Lessor") and
("Lessee").
WHEREAS,Lessor and Lessee have entered into a Lease dated for
Premises designated on Exhibit A attached to the Lease,which was duly recorded at Book Page
,and rent shall be paid according to the commencement date each year;and
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: .200
Initial Term Expiration Date: ,2
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR: LESSEE:
By: By:
MAYOR Name:
Title:
ATTEST: DANNY L.KOLHAGE,
WITNESS:
CLERK
Print Name:
Deputy Clerk
WITNESS:
Print Name:
Page 43 of 45
Omit 1788774
Blot 2431 PO 782
EXHIBIT D
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 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 44 of 45
DacN 1758774
BkN 2431 PgN 783
Lessor.
• I understand that in the event that I die,my home may be devised and
occupied by my wife,my children or any other heirs so long as they meet
the requirements for 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
MONROE COUNTY
Page 45 of 45 OFFICIAL RECORDS
DoeN 1781592 03/18/2010 4:12PM
Filed & Recorded in Official Records of
MONROE COUNTY DANNY L. KOLHAGE
PREPARED BY AND RETURN TO: Skip 1781592
Bk
SUSAN GRIMSLESkit2456 PAN 2377
MONROE COUNTY
2798 OVERSEAS HIGHWAY
MARATHON,FL. 33052
FIRST AMENDMENT TO OCCUPANCY AGREEMENT AND GROUND LEASE
THIS FIRST AMEND TOO ANCY AGREEMENT AND LEASE (First
Amendment), dated this ) day of 2010, is made by and between Monroe
County, a political subdivision of the State of Flori (Lessor)and Habitat for Humanity of Key
West and the Lower Florida Keys,Inc.,a Florida non-profit corporation(Lessee).
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain 99-year Lease (Lease) dated May 20,
2009, for the property legally described as Part of Tract B, Porpoise Point, Section 5 on Big
Coppitt Key, Mile Marker 10.5 Bayside,at the corner of Emerald Drive,Sapphire Drive and US
1, Monroe County, Florida,having RE# 00156320-000000, for the development of twelve(12)
affordable housing dwelling units, said Lease being recorded in Monroe County Public Records
at Official Records Book 2431 at page 739;and
WHEREAS, in drafting the Lease an Annual Base Rent in the amount of Ten Dollars ($10.00)
was included in the Lease as said language was considered usual and customary for consideration
in a deed or lease;and
WHEREAS, Lessor and Lessee desire to amend the Lease to provide that there shall be no rent
payable under the Lease, the intent being that the Lease will comply with Florida Statute
196.199(2)(b);and
WHEREAS, Lessor and Lessee desire to amend the Lease to also provide that the initial term
shall be one hundred (100) years in order to be taxable as provided under Florida Statute
196.199(7);
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained
herein, and other good and valuable consideration,the receipt and adequacy of which are hereby
acknowledged,the undersigned parties agree as follows:
1.The recitals contained herein are true and correct and incorporated herein by reference.
2.The Lease is presently valid and in full force and effect.
3.In Article I Definitions,the definition of the word"Term"shall be amended as follows:
"Term" means the Commencement Date and continuing for One Hundred(100)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.
EXHIBIT
Page 1 of 3 I Sp
Doan 1781592
BIM 2436 PO 2378
4.Section 3.01 Term shall be amended as follows:
Term: To have and to hold the Demised Premises for a term of One Hundred (100) years
commencing on the Commencement Date and ending One Hundred (100) 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 an 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,reflecting a term of One Hundred(100)years.
5. In Article I, Definitions, the definition of "Rent" is hereby deleted and notwithstanding
anything contained in the Lease to the contrary there shall be no annual base rent due. However,
obligations for any other payment considered as additional rent and any other financial
obligations provided for in the Lease shall remain in full force and effect.
6. Section 4.01 of the Lease is hereby deleted to provide that there shall be no base rental
payments due pursuant to this Lease so that the leasehold shall be taxed as real property with an
ownership interest in Lessee or sub-lessees.
7.The effective date of the terms of this First Amendment shall be August 19,2009,to reflect the
original intent of the parties;therefore application is retroactive.
8. Except as expressly modified by the First Amendment, all terms and conditions of the Lease
remain in full force and effect,binding upon the parties.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
Page 2 of 3
. Doop 1781582
Bkp 2458 Pap 2378
•
IN WITNESS WHEREOF the unders,i�neiqd executed this First Amendment to Occupancy
Agreement and Lease this ltiay of f—c,.h.• ,2010.
LESSOR:
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS (SEAL)
AATTE�S�T:DANNY L.KOLHAGE,CLERK
4:5,./4ezedic: 4,0.4. a
Mayor Sylvia J.Murphy Deputy Clerk
STATE OF FLORIDA
COUNTY OF MONROE
Be it known, that on the 3r`� day of Mar• , 2010,before me, a Notary Public in and for
the State of Florida, County of Monroe, duly commissioned and sworn, personally came and
appeared Sylvia J.Murphy, as Mayor of Monroe County,to me personally known. In testimony NN
wh • ,0.•Atelliwnto subscribed my name and affixed my seal of office the day and year last \]
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Print Name
Print Nam L. h,
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STATE OF FLORIDA ��
COUNTY OF MONROE ,,.�(
Be it known,that on the ,3" - day .'•� ,. A, . 2010,before me,a Notary Public in and
for the Stateada, County of Monroe, duly .>.mmissioned and sworn,personally came and
appeared .t l.cJ ` to me personally known or who- evicted
as-identifieatton. In testimony whereof, I have hereunto
subscribed my name and affixed my seal of office the day and year last above written.
(Seal)
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MONROE COUNTY
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Page 3 of 3 OFFICIAL RECORDS