Item J4BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: March 21, 2012 Division: Growth Management
Bulk Item: Yes x No _ Department:
Stan Contact Person/Phone #: Susan Grimsley
305-289-2524
AGENDA ITEM WORDING: Approval of Second Amendment to Occupancy Agreement and
Ground Lease with Habitat for Humanity of the Upper Keys for property on First Avenue in Key
Largo, reducing the number of units from fourteen (14) to seven (7) with completion June 1, 2018.
ITEM BACKGROUND: The County entered into a 99 year lease with Habitat of Humanity of the
Upper Keys for property located on 1 �c Avenue and I" Street in Key Largo. The Lease required the
construction of 14 attached dwelling units. Building Permits were supposed to be pulled by June 1,
2011 and construction completed no later than August 1, 2012. Because of homestead requirements as
determined by the Property Appraiser the Lease was amended to be for 100 years with no rent on April
21, 2010. Technically, the lessee is in default. However, the lessee has written a letter dated October
14, 2011 requesting to change the site plan to construct seven single family homes and requesting an
extension of the lease with a period of 1 year to obtain approval and five years to complete
construction of all seven units, for a total of six years.
PREVIOUS RELEVANT BOCC ACTION:
November 16, 2011— Discussion Item before BOCC
April 21, 2010 — BOCC approved 1" Amendment to Occupancy Agreement and Ground Lease to 100
Years
May 20, 2009 — BOCC approved Occupancy Agreement and 99 Year Lease.
December 17, 2007- BOCC awarded project to Habitat for Humanity of the Uppers Keys for a home
ownership project.
October 19, 2005 — BOCC authorized acceptance from the Monroe County Housing authority for the
above referenced parcels when appropriate.
September 25, 2001— Land Authority deeded the property to Monroe County Housing Authority.
July 19, 2001— Land Authority Resolution 06-2001 authorized the purchase by the Land Authority and
conveyance to the Monroe County Housing Authority.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval
TOTAL COST: INDIRECT COST: _
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:
REVENUE PRODUCING: Yes _ No
BUDGETED: Yes No
SOURCE OF FUNDS:
AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required
DISPOSITION: AGENDA ITEM #
Revised 7/09
SECOND AMENDMENT
TO
OCCUPANCY AGREEMENT AND GROUND LEASE
This Second Amendment to Occupancy Agreement and Ground Lease (Second Amendment)
dated this day of , 2012, is made by and between Monroe County (County), a
political subdivision of the State of Florida (Lessor) and Habitat for Humanity of the Upper Keys,
Inc., (Habitat) 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 on Exhibit A attached, known as 104 First Street, Key
Largo, Monroe County for the development of fourteen (14) affordable housing dwelling
units(units), said Lease being recorded in OR Book 2414 at Page 490; and
Whereas, there was a First Amendment to the Lease dated April 21, 2010, which changed the
term and the rent; and
Whereas, Section 14.01 of the Lease required building permits be issued for the units by June
1, 2011 and certificates of occupancy issued by August 1, 2012; and
Whereas, the parties desire to change the number of units to be built on the property and the
date of issuance of certificates of occupancy;
Now, Therefore, the undersigned parties agree as follows:
1. The Lease is currently valid and no actions for default have been commenced by
County.
2. The definition of the term "Project" in Article I of the Lease is as follows:
"Project" shall mean the required development of the Demised Premises for a seven (7)
unit complex for sale or rent for moderate to low income affordable employee housing,
primarily the required construction of Affordable Housing Units as set forth in Article
XIV, but also including related infrastructure , securing of required development
approvals and permits, financing for the construction for the Affordable Housing Units,
marketing/renting of the Affordable Housing Units and creation of any required governing
Association.
3. Section 14.01(a) of the Lease shall read as follows:
(a) Initial Lessee shall commence construction of the Project any time after the date of
execution date of this Second Amendment and shall complete construction and
obtain Certificates of Occupancy for all seven (7) units by June 1, 2018. The units
may be constructed in phases or at one time, substantially in accordance with the
site plan attached as Exhibit B, unless Lessee decides to do attached housing or
duplexes to provide more open space.
4. Except as expressly modified by this Second Amendment, all terms and conditions
the Lease and First Amendment thereto are in full force and effect and are binding up
the parties. I
LESS
MONROE COUNTY BOARDOF SEAL
COUNTY COMMISSIONERS EST; DANNY L. KOLHAGE, CLERK
Mayor David Rice Deputy Clerk
(1)
Signature
Print Name
(2)
Signature
Print Name
Executive Director
Print Name
Be it known, that on the day of 1 2012, before me a Notary Public in and for
the State of Florida, duly commissioned and sworn personally came and appeared
To me personally known or who provided as identification. In
testimony whereof, I have subscribed my name and affixed my seal of office of Notary Public
the day and year
Exhibit A
A part of the Northeasterly 125 feet of Block 3, Mandalay,
according to the Plat thereof, as recorded in Plat Book 1,
at Page 194 of the Public Records of Monroe County, Florida
being more particularly described as follows:
Beginning at the Northwesterly corner of the Northeasterly
125 feet of Block 3, aforementioned Plat of Mandalay, run
Northeasterly along the Northwesterly line of said Block 3
for a distance of 99.99 feet to a point of curvature;
thence in a Southeasterly direction along the arc, of a
curve concave to the South, having a radius of 25.00 feet
and a delta angle of 90 degrees 01 minutes 03 seconds for a'
distance of 39.28 feet; thence run in a Southeasterly,
direction along the Northeasterly line of said Block 3 for
a distance of 125.15 feet; thence run with a deflection
angle to the right of 90 degrees 00 minutes 00 seconds from
the last described course for a distance of 44.50 feet;
thence run with a deflection angle to the right of 90
degrees 00 minutes 00 seconds from the last described
course for a distance of 47.97 feet; thence run with a
deflection angle to the lgft of 90 degrees 00 minutes 00
seconds from the last described course for a distance of
62.50 feet; thence run with a deflection angle to the left
of 90 degrees 00 minutes 00 seconds from the last described
course for a distance of 75.97 feet; thence run with a
deflection angle to the left of 90 degrees 00 minutes 00
seconds from the last described course for a distance of
107.00 feet to the Northeasterly line of said Block 3;
thence run with a deflection angle to the right of 90
degrees 00 minutes 00 seconds and Southeasterly along the
Northeasterly line of said Block 3 for a distance of 46.88
feet to a point of curvature; thence in a Southwesterly
direction along the arc of a curve concave to the West,
having a radius of 25.00 feet and a delta angle of 89
degrees 59 minutes and 30 seconds for a distance of 39.27
feet; thence run in a Southwesterly direction along the
Southeasterly line of said Block 3 for a distance of 100.00
feet; thence run with a deflection to the right of 90
degrees 00 minutes 30 seconds from the last described
course for a distance of 250.02 feet back to the Point of
Beginning, containing 24,990.66 square feet, more or less.
AND ALSO:
A part of the Northeasterly 125 feet of Block 3, Mandalay,
according to the plat thereof as recorded in Plat Book 1,
at Page 194 of the Public Records of Monroe County,
Florida, being more particularly described as follows:
Commencing at the Northwesterly corner of the Northeasterly
125 feet of Block 3, aforementioned Plat of Mandalay, run
northeasterly along the Northwesterly line of said Block 3
for a distance of 99.99 feet to a point of curvature;
thence in a Southwesterly direction along the arc of a
curve concave to the South, having a radius of 25.00 feet
and a delta angle of 90 degrees 01 minutes 03 seconds for a
distance of 39.28 feet, thence run in a Southeasterly
direction along the Northeasterly line of said Block 3 for
a distance of 125.15 feet to the point of beginning of the
parcel hereinafter described, thence run a deflection angle
to the right of 90 degrees 00 minutes 00 seconds from the
last described course for a distance of 44.50 feet, thence
run with a deflection angle to the right of 90 degrees 00
minutes 00 seconds from the last described course for a
distance of 47.97 feet, thence run with a deflection angle
to the left of 90 degrees 00 minutes 00 seconds from the
last described course for a distance of 75.97 feet, thence
run with a deflection angle to the left of 90 degrees 00
minutes 00 seconds from the last described course for a
distance of 107.00 feet to the Northeasterly line of said
Block 3, thence run with a deflection angle to the left of
90 degrees 00 minutes 00 seconds and Northwesterly along
the Northeasterly line of said Block 3 for a distance of
28.00 feet back to the point of beginning, containing
5994.29 square feet, more or less.
EXHIBIT B
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JESSICA ROTHENWRO
Roswr C. STwER
MATTHEW J. PIENCIAK
MICHAEL L. CRNNELLA
HLk,,4-Y
»eraho� Iapioao d� bagel, LLP
AtW=r At taw
Au.CoRRwPoNDENce To:
90130 OLD HIGHWAY
TAvomm FLowDA 33070
(305) 8524"
FAX (305) 852 W48
October 14, 2011
Via Email: Hurley-Christine(dmonroecounty fl.nov
Christine Hurley
Director, Growth Mgmt. for Monroe County
2798 Overseas Hwy
Suite 400
Marathon, FL 33050
Re: Key Largo, First Ave. Lease of Property
Dear Ms. Hurley:
9155 S. DADeuwD ftm Sum 1912
MlAeu, FLORIDA 33156
(305) 670-75"
of COUNSEL,
RON SAUNDERS, ST=S RmuesiTATIYe
LAND USE COORDINATOR
Pem D. BACHmm
With respect to the above referenced property, Habitat for Humanity of the Upper
Keys ("Habitat") was awarded a lease by Monroe County in December of 2007
for the First Ave. property located at approximately Mile Marker 97 in Key Largo.
At the time the lease was awarded, it was intended Habitat would develop a total
of.14 affordable housing units in multi -family structures.
Following the award of the lease, the significant economic downturn already
being experienced throughout the Country only worsened and this resulted in
significant and unanticipated funding obstacles for Habitat. To overcome these
challenges, in August of 2009 Habitat forged a partnership with Gorman & Co.
with the expectation that Gorman could secure funding for construction through
the Low Income Housing Tax Credit ("LIHTC") in the 2009 funding year.
Unfortunately, Gorman was unable to secure the LIHTC funding.
By early 2010 it was quite apparent Habitat, due to the continuing funding issues,
would not be able to commence and complete construction of the units within the
originally contemplated time periods. Cognizant of this reality, the Habitat Board
began investigating alternative development concepts which it felt it could
complete without having to secure funding from sources that it has not
traditionally relied upon (e.g. LIHTC).
In reviewing the various development options, the Board concluded that
construction of detached single family homes would be the preferable course of
action for multiple reasons, both financial and non -financial:
(1) There are considerable multi -family affordable housing units
entering the market in the Upper Keys now and in the immediate future:
Bluewater project in Tavernier (36 Units) and Keys Lake Villas, M.M. 106 (110
Units);
(2) Habitat believes that detached homes are more "family friendly"
than multi -unit structures;
(3) Habitat both prefers and is better at constructing single family
homes;
(4) Construction of single family detached homes over a multi -year
period is financially feasible for Habitat and could be started as soon as the
necessary approvals were obtained.
As a result of the above circumstances, Habitat is requesting the County agree to
a modification of the existing lease which would allow it to build seven single
family detached homes. Habitat proposes the lease provide it has one year from
the date of execution to obtain all necessary development approvals and five
years from the date it has obtained the necessary approvals to complete
construction of all seven units.
I have attached a copy of the proposed site plan to this e-mail.
If you have any questions, please do not hesitate to contact the undersigned.
With best rrds, we are
"ssW A:—Yagel, Esq.
Hershoff, Lupino & Yagel, LLP
90130 Overseas Highway
Tavernier, FI.33070
Phone: (305) 852-8440
Fax: (305) 852-8848
rrvaael@tropicalaw.com
PREPARED BY AND RETURN TO:
SUSAN GRIMSLEY
MONROE COUNTY
2798 OVERSEAS HIGHWAY
MARATHON, FL. 33052
FIRST AMENDMENT TO OCCUPANCY AGREEMENT AND GROUND LEASE
THIS FIRST AMENDMENT TO OCCUPAN Y AGREEMENT AND GROUND LEASE
�.at (First Amendment), dated this Zday ofU.4At 2010, is made by and between
Monroe County, apolitical subdivision of the Stat of Florida (Lessor) and Habitat for Humanity
of the Upper 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 on Exhibit A attached having RE# 00554720-000000 and
RE#00554720-000100, known as 104 First Street, Key Largo, Monroe County for the
development of Fourteen (14) affordable housing dwelling units, said Lease being recorded in
Monroe County Public Records at Official Records Book 2414 at Page 490; 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.
4. In Article I Definitions, the definition of the term "Affordable Housing Unit" shall be amended
as follows:
Page 1 of 3
"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
One Hundred (100) year lease. The singular includes the plural and the plural includes the
singular when referenced herein.
5. 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.
6. In Article I, Defmitions, 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.
7. 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.
8. All other terms of the Lease referring to a ninety - nine (99) year lease shall reflect the change
to One Hundred (100) Years if not specifically referenced in this First Amendment.
9. Exhibit D of the Lease shall be amended as attached as Exhibit B to reference the One Hundred
(100) year term.
10. The effective date of the terms of this First Amendment shall be May 20, 2009, to reflect the
original intent of the parties; therefore application is retroactive.
11. 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
IN WITNESS WHEREOF, the undersigned ev4uted this First Amendment to Occupancy
Agreement and Ground Lease this day of — 2010.
LESSOR:
MONROE COUNTY BOARD OF
CANNY L. KOLHAGE, CLERK
ale.
STATE OF FLORIDA
COUNTY OF MONROE
Be it known, that on the AX day of 2010, before me, a Notary Public in and for
the State of Florida, County of Monroe,'diffy commissioned and sworn, personally came and
appeared Sylvia J. Murphy, as Mayor of Monroe County, to me personally known. In testimony
whereof I have hereunto subscribed my name and affixed my seal of office the day and year last
above written.
PAhWM HAN=
MY COMMISSION i DD 730412
�) EXPIRES: Febn" 7, 2012 ` NOTARY PIMLIC
BaWd 11u Waun PiAi90 undMwrNre
LESSEE:
HABITAT FOR HUMANITY OF THE UPPER
KEYS, INC.
Witness:
Oident
(1)1. Daniel M
.` Print Name Print Name
�J�1L��r i � ,�d��
(2)
E ve Dirydior
Print Name -n
Print Name jack Neidbalski '„ D -• o i=
.��. = rn
STATE OF FLORIDA -�
COUNTY OF MONROE rn
�. 0 TTO
Be it known, that on the >< day of 2010, before me, a Notary Pa andz M
for the State of Floxida, C of M duly commissioned and sworn, personA and?
appeared lkkk 4. Ic Ut,A1*"6 to me personally known or who pfavidet, CD1%4, .-bfz,am as identification. In testimony whereo4 I have hereunto
subscribed my name and affixed my seal of office the day and year last above written.
(Seal) _..
KENIE RODRKiUEZ
439S-407)�
'•Y COMMISSION # DD859117
s EXPIRES February08. 2013
__ f rv,ce.com
Page 3 of 3
Exhibit A
A part of the Northeasterly 125 feet of Block 3, Mandalay,
according to the Plat thereof, as recorded in Plat Book 1,
at Page 194 of the Public Records of Monroe County, Florida
being more particularly described as follows:
Beginning at the Northwesterly corner of the Northeasterly
125 feet of Block 3, aforementioned Plat of Mandalay, run
Northeasterly along the Northwesterly line of said Block 3
for a distance of 99.99 feet to a point of curvature;
thence in a Southeasterly direction along the arc, of a
curve concave to the South, having a radius of 25.00 feet
and a delta angle of 90 degrees 01 minutes 03 seconds for a
distance of 39.28 feet; thence run in a Southeasterly
direction along the Northeasterly line of said Block 3 for
a distance of 125.15 feet; thence run with a deflection
angle to the right of 90 degrees 00 minutes 00 seconds from
the last described course for a distance of 44.50 feet;
thence run with a deflection angle to the right of 90
degrees 00 minutes 00 seconds from the last described
course for a distance of 47.97 feet; thence run with a
deflection angle to the left of 90 degrees 00 minutes 00
seconds from the last described course for a distance of
62.50 feet; thence run with a deflection angle to the left
of 90 degrees 00 minutes 00 seconds from the last described
course for a distance of 75.97 feet; thence run with a
deflection angle to the left of 90 degrees 00 minutes 00
seconds from the last described course for a distance of
107.00 feet to the Northeasterly line of said Block 3;
thence run with a deflection angle to the right of 90
degrees 00 minutes 00 seconds and Southeasterly along the
Northeasterly line of said Block 3 for a distance of 46.88
feet to a point of curvature; thence in a Southwesterly
direction along the arc of a curve concave to the West,
having a radius of 25.00 feet and a delta angle of 89
degrees 59 minutes and 30 seconds -for a distance of 39.27
feet; thence run in a Southwesterly direction along the
Southeasterly line of said Block 3 for a distance of 100.00
feet; thence run with a deflection to the right of 90
degrees 00 minutes 30 seconds from the last described
course for a distance of 250.02 feet back to the Point of
Beginning, containing 24,990.66 square feet, more or less.
AND ALSO:
A part of the Northeasterly 125 feet of Block 3, Mandalay,
according to the plat thereof as recorded in Plat Book 1,
at Page 194 of the Public Records of Monroe County,
Florida, being more particularly described as follows:
Commencing at the Northwesterly corner of the Northeasterly
125 feet of Block 3, aforementioned Plat of Mandalay, run
northeasterly along the Northwesterly line of said Block 3
for a distance of 99.99 feet to a point of curvature;
thence in a Southwesterly direction along the arc of a
curve concave to the South, having a radius of 25.00 feet
and a delta angle of 90 degrees 01 minutes 03 seconds for a
distance of 39.28 feet, thence run in a Southeasterly
direction along the Northeasterly line of said Block 3 for
a distance of 125.15 feet to the point of beginning of the
parcel hereinafter described, thence run a deflection angle
to the right of 90 degrees 00 minutes 00 seconds from the
last described course for a distance of 44.50 feet, thence
run with a deflection angle to the right of 90 degrees 00
minutes 00 seconds from the last described course for a
distance of 47.97 feet, thence run with a deflection angle
to the left of 90 degrees 00 minutes 00 seconds from the
last described course for a distance of 75.97 feet, thence
run with a deflection angle to the left of 90 degrees 00
minutes 00 seconds from the last described course for a
distance of 107.00 feet to the Northeasterly line of said
Block 3, thence run with a deflection angle to the left of
90 degrees 00 minutes 00 seconds and Northwesterly along
the Northeasterly line of said Block 3 for a distance of
28.00 feet back to the point of beginning, containing
5994.29 square feet, more or less.
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 ioo-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 ioo-year term of
the Lease and that I will be expected to abide by any such changes.
• That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
• That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it to and that the timing and procedures for sales will be restricted.
• That my lease prohibits me from severing the improvements from the real
property.
• That my family and I must occupy the Affordable Housing Unit and that it cannot
be rented to third parties without the written approval of the Lessor.
• I 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
Exhibit B to First Amendment to Occupancy Agreement and Ground Lease
Habitat or Human othe Upper Keys, Inc. dated Aoril1. 201
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
rst Amendment to Occupancy Agreement and Ground Lease
Prepared by and return to:
Susan Grimsley, Esq.
c/o Michelle Lee
Monroe County, 2798 Overseas
Highway, #400, Marathon, FL
33050
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
HABITAT FOR HUMANM OF THE UPPER KEYS, INC.
"LESSEE"
DATEDdy ,?
"n
�C)Arn
rn
C!1
0
v
v
Mandalay Lease May 4, 2009
Page 1 0£ 46
Table of Contern
Article
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
XVIII
XIX
XX
Title
Pa
Definitions
4
Demised Premises
7
Term
8
Rent
8
Non -Subordination
Payment of Taxes and Utilities
Mechanics' Liens
Governing Law, Cumulative Remedies
Indemnification of Lessor
Insurance
Insurance Premiums
Assignment/Transfer
Condemnation
Construction
Mortgage Financing
Default
Repair Obligations
Additional Covenants of Lessee/Lessor
Representations, Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use
Miscellaneous
9
9
12
13
13
14
18
18
21
22
24
29
32
32
34
34
Page 2 of 46
Exhibit A Legal Description
Exhibit B Property Depiction
Exhibit C Commencement Date Agreement
Exhibit D Letter of Acknowledgment
41
43
44
45
Page 3 of 46
OCCUPANCY AGREEMENT AND GROUND LEASE
THIS Agkay
ent and Lease made and entered into in Key West, Monroe County, Florida,
on this of �� by and between MONROE COUNTY
referre the "Lessor" r "Owner") and HA ITAT FOR HUMANITY OF THE UPPER
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
legally described on Exhibit A, known as 104 First Street, Key Largo, Monroe County,
Florida, having RE#00554720-000000 and RE#oo554720-000100 ; 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 fourteen
(14) 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
Defi
"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 Iegislative 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 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
Page 4 of 46
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
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
which'they are located is maintained and enforced such that any administrative rulpojon
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 ExhibitA. Demised Premises, where the context requires and the construction
is most appropriate, shall also mean portions of the Demised Premises and an
improvements erected thereon, y
"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 the Upper 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
agreed to and accepted by Lessees, that any limitations, restrictions ad/or other covenants
n
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'
Page 5 of 46
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
fourteen (14) unit complex for sale or rent for moderate to low income affordable
employee housing, primarily the required construction ofAffordable 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
Subleases and/or the Affordable Restrictions. may be provided for in
"Sale" and "Sell" as used herein shall be broadly and liberally construed so as to
encompass, where contextually appropriate, any ground subleasing, sale, grant, assignment
or other conveyance of an interest in any portion of the Demised Premises authorized
pursuant to this Lease, but excluding any rental of an Affordable Housing Unit (which may
be more particularly discussed herein or in the Affordable Restrictions) and any granting of
any security, mortgage, note or other interest of a form and type customarily used with
purchase money or home equity loans.
"Sublease" shall mean any combination of instruments that grant, convey or
otherwise transfer a possessory use and/or title interest to any portion of the Demised
Premises, including rental agreements with tenants or renters of an Affordable Housing
Unit (which may be more particularly discussed herein or in the Affordable Restrictions)
and any security, mortgage, note or other interest of a form and type customarily used with
purchase money or home equity loans. The title or exact nomenclature used to describe
such instruments may vary to suit particular circumstances and shall lie within Initial
Page 6 of 46
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
indi,, idual 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 b
the Initial Lessee of these covenants and the terms and conditions of any Related
Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and
demise to the Initial Lessee (and permitted successor Lessees) and the "Initial Lessee"
hereby leases from the Lessor, the following described premises, situate, lying and being in
Monroe County, Florida: See Exhibit A known as 104 First Street, Key Largo, Monroe
County, Florida, having RE#00554720-000000 and RE#00554720-000100
Section 2 2 Conditim.ons The demise is likewise made subject to the following:
record; (a) Conditions, restrictions and limitations, if any, now appearing of
(b) Zoning ordinances of the County of Monroe, State of Florida, and any
other applicable governmental body now existing or which may hereafter exist by reason of
any legal authority during the Term of this Lease; and
(c) The proper performance by the Lessee of all of the terms and
conditions contained in this Lease, the Affordable Restrictions and Related Agreements, if
any.
Page 7 of 46
ARTICLE III
Term
Section 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 nine r
years thereafter, both dates inclusive, unless sooner terminated, or extended, as
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 a of 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 ($ io.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 a o2 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
ssor at the
address set forth herein or at such other place within he continental limit oof the United
States as Lessor shall from time to time designate by notice to Lessee. Except for any
income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local
surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums
otherwise set forth herein.
Section a o,-AIt 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, operation, maintenance, repair, rebuilding, use or occupation thereof.
Section All amount 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
Page 8 of 46
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 (10%) percent of any
amount due from Lessee to Lessor which is not paid within ten (io) days of the payment
due date for any sums due for Rent and within thirty
Lessee pursuant to this Lease; provided however, says for any other sums due from
ent 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 Iate 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 an
y paymen
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 of Non -Subordination. Notwithstanding an
ntrary
contained inthis Lease, the fee simple interest in the Demised Premiss shallythito the conot 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.oi 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, rats and charges, transit taxes, charges for public utilities, excises,
levies, licenses and permit fees and other governmental charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever,
which at any time during the Term of this Lease may be assessed, levied, confirmed,
imposed upon, or grow or become due and payable out of or in respect of, or become a lien
on, the Demised Premises, or otherwise arise out of the revenues received by the Lessee
from the sale or rental of the Affordable Housing Units to Sublessees, or be associated with
any document (to which the Lessee is a party) creating or transferring an interest or estate
Page 9 of 46
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 Obli .+ions. 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 received by
Sublessee from the sale of their Affordable Housing Unit (if contemplated or otherwise
authorized under this Lease or the Affordable Restrictions), or be associated with any
document (to which *the Sublessee is a party) creating or transferring an interest or estate in
the respective portion of the Demised Premises.
Section 6 m Obligations Altered. No 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 im
or charges now levied, assessed and imposed, wholly or partially as a ns
capitalPO tivy, 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, Ievies,
charges or assessments required to be paid shall belong to Lessee.
Section 6 oa 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
days
before the tax, itself, would become delinquent in accordance with the law then3n) 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 Lessees intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County, one and one half (11/2) times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
Page 10 of 46
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.o 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 le" ied
against Lessee in accordance with paragraph 6.04, above; and provided Lessee files the
appropriate documentation to contest said tax or assessment, Lessee shall not be in default
of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein
shall be construed to prevent or inhibit the assessment measures and collection remedies
lawfully available to any taxing authority.
Section 6 o6 ublessee'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 6.0A raiser to Res ect Effect of Affordable Restrictions. It is the intent
of the parties that any appraisal of any portion of the Demised Premises for taxation, public
assessment or utility service purposes fully reflect the effect of this Lease and the Affordable
Restrictions on the lawfully realizable value of relevant portion(s) appraised, or where
permissible by state law, "income approach" or other method of calculation.
Page 11 of 46
ARTICLE VII
Mechanic's Liens
S� ; ion M01No Lien. Neither the Lessee nor any Sublessee shall have th
:' sect interest of the Lessor in the Demised Premises to
"-���--- Mien lien of any kind whether or not the improvements are made t e power to
any mechanic's or
of the Lessor. with the consent
Section I 02 r� of -Lien. Neither the Lessee nor any Sublessee shall
suffer to be filed or claimed at 'nst the interest of the Lessor i
during the continuance of this Le• _ , �, Permit or
v lien or claim of any kinder n d if such liened be
ses
claimed or filed, it shall be the duty of the L� --ae, or the Sublessee. � ,-
claim is attributable, or both where the Affordabtt ; .iich the lien or
thirty (30) days after the Lessee or Sublessee shall have btSmg Unit
r a
claim having been filed, or within thirty� � ai uiii `- c�'ithin
written notice of such claim and shall have transmitted wilt n Ilot�� E : ' ►such a
claim unto the Lessee l Sublessee, as the case may r shall hay ?ietn given
expires earlier) to cause the respective portion of the rice of the receipt ay p
y be, (wl. .-er hi p such
such claim, either b e Demise � remises o be �eleased from
competent jurisdictiono he amount nece sary to re eve e Posting of bond or .
the payment to a court of
of the Demised Premises from such claim, or in any other manner which
e and release the relevant portion
will result, within such period of thirty (30) days, in. releasing the Lessor as a matter of law,
Lessor from such claim; and the Lessee covenants and agrees, with respectand the title a the
claim attributable to it, within such to any lien or
Portion of the Demised Premises and the oLessor'teres d herein ays, so is to cause the affected
legal effect of such claim. o be released from the
Section o Lessee' Default. If the Lessee shall fail, refuse, or neglect t
its obligations as required in this Article, then the Lessor may, but shall
Pay any sums required to cause the Demised Premises and the Less g to perform
be released from the legal effect of such claim and the amountnot be required to,
including reasonable attorneys' fees and expenses which Lessor's interest therein to
because of e s connection with such a might
amounts reasonably money c paid,
ounts
at the highest rate allowed i law sh yments, together wi h iin err st on all uch incurred
demand of the Lessor, and thePaymentall be repaid by the Lessee to the Lessor, upon the
in the same manner as though h amount were ban installment oenforced by the Lessor
required by the terms of this Lease to be paid by the Lessee to the Lessor,
ay
when the Lessor demands repayment of Rent specifically
Lessee; but the election of the Lessor to pay suoch amount hall nor reimbursement t
of and frohm the
committed by the Lessee. t waive the default thus
Section o Sublessee's Default. If the Sublessee shall fail, refuse' or neglect to
perform its obligations as required in this
required to, pay any sums required to cause the Demised Premises anh
Article, then the Lessor may, but shall not be
therein to be released from the legal effect of such claim and the amon Lessor's interest
money so paid, including reasonable attorneys' fees and expenses which mounts might be
Page 12 of 46
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
ereof or
therefor of and from the Sublessee; but the election oLessorlto pay such amount shall
not waive the default thus committed by the Sublessee.
ARTICLE VIII
Governin Law Cumulative Remedies
Section 8 o1 Governing Law All of the rights and remedies ofthe respective parties
relating to or arising under this instrument and any related documents shall be ove
and construed under the laws of the State of Florida. g rued by
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
Sectionol 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
preparing for such response or defense in addition to any other
costs of court and reasonable attorneys' fees incurred by the Lessor in effecting and
reasona
Lessor may be called upon to pay by reason of the entry of a judgmeble sums which the
nt against the Lessor in
any proceeding in which such claim is asserted.
Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise
Provided in Section 12.01, upon completion of the construction and sale or assignment of
any portions of the Project in accordance with this Lease if contemplated and authorized as
a home -ownership project, Initial Lessee shall be released from any and all liability related
Page 13 of 46
to such transferred portions of the Demised Premises and the subsequent use thereof by the
Sublessees, their employees, agents, contractors, guests or invitees, including writhout
limitation any death, injury or damage to person orproperty
portions of the Demised Premises, except as otherwise erth hein or rein the transferred
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 loss of life or injury to person or property, of whatever nature.
Section a 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.
Sectiong.oa 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 isprudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance
Section io.oi Property Ins_ u_, From and after the Effective Date, the Lessee
will keep insured any and all buildings and improvements upon the Demised Premises
against all loss or damage by fire, flood and windstorm, together with "all risks" "extended
coverage," which said insurance will be maintained in an amount sufficient to prevent any
party in interest from being or becoming a co-insurer on any part of the risk, which amount
shall not be less than the full Replacement Cost value of the relevant portions of the
Demised Premises, and all of such policies of insurance shall include the name of the Lessor
Page 14 of 46
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
ty
by the Initial Lessee, Lessee or Lessee's Mortgagee and located in the Counin 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 may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or
other casualty for which insurance money shall be payable and shall be paid out by the
Lessor and the Lessee from said joint account from time to time on the estimate of any
reliable architect licensed in the State of Florida officially overseeing of such reconstruction
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 an
y pof said Demised
Premises shall be destroyed or damaged by fire, flood, windstorm olroother casualty, the
Lessee shall, within fifteen (15) months (or twenty-four
total
Ioss) from the date of such damage or destruction, rebuild and lrepair the s for a subsa eain 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 ro
diligently property Prior to such damage or destruction,
and Lessee shall dili
g y 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 res
of any leasehold mortgage substantially comportiinn gwith customary to insurance institu the provisions
tionalending
industry standards and the foregoing Lessor's interests shall control as theluse and
disbursement of insurance funds for reconstruction of the improvements in the event of any
casualty or damage to such improvements.
While the Project, or any replacement thereof, is in the course of construction, and
whenever appropriate while any alterations are in the course of being made, the aforesaid
fire and extended coverage insurance shall be carried by Lessee in builder's risk form
written on a completed value basis.
Notwithstanding anything to the contrary in the immediately preceding paragraph,
in case of destruction of all of the improvements on the Demised Premises from any cause
so as to make all Affordable Housing Units untenantable occurring during the last ten (io)
Page 15 of 46
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 an
y proceeds collected insurance policies covering the improvements. If Lessee elects not to terminate this Le se
in the event of destruction during the last ten (10) years of this Lease, the proceeds a 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 Io.02 Commercial General Liabili 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-o1] as filed
for use in Florida without the attachment of restrictive endorsements other than the
elimination of medical payments and fire damage legal liability.
General Aggregate $1,000,000
Products/Completed Operations $1,000 000
[coverage for one (1) year after project completion]
Each Occurrence $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 io o1 Environmental Impairment Itesponsibili The Lessee and/or its
contractors acknowledge that the performance of this Lease is, or may be, subject to
Federal, State and local laws and regulations enacted for the purpose of protecting,
preserving or restoring the environment. The Lessee shall, at the sole cost of the Lessee or
its contractors, be responsible for full compliance with any such laws or regulations.
Section 10 04 Other Insurance. Lessee shall maintain such other insurance and in
such amounts as may from time to time be reasonably required 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 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
Page 16 of 46
procedure may only be requested on each five (5) year anniversary date of the Lease.
Section in ric Proceeds Pa •able to Mort a ee. If any mortgagee holding a mortgage
created pursuant to the provisions of Article XV elects, in accordance with the terms of such
mortgage, to require that the proceeds of any casualty insurance be held by and paid out by
the mortgagee, then such payment may be made, but in such event, it shall still be
obligatory upon the Lessee to create the -complete fund with the leasehold mortgagee in the
manner set forth in this Article to assure complete payment for the work of reconstruction
and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are
properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by
Sublessee or Lessee.
m. Any excess of
oney 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 (10) years of the Lease as set forth above, and retain such amount as liquidated and
agreed upon damages resulting from the failure of the Lessee to promptly, within the time
specified, complete such work of reconstruction and repair.
Section io.o� Direct Renavment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and 00/100 Dollars
($100,000.00) or less, then such proceeds shall be paid directly to the Lessee without the
necessity of creating the joint bank account, and Lessee shall use such funds to make the
replacements or repairs. Lessee shall provide proof satisfactory to Lessor that repairs are
completed as required within fifteen (15) months from the date of such damage or
destruction, unless said period is enlarged by delays caused without fault or neglect on the
part of the Lessee.
Section io.08 General Re uirements. 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 ia
forfeiture of such insurance or any part thereof shall in any way affect the validin
ty
enforceability of such insurance insofar as Lessor, and that (ii) such policy of insuror
ance
shall not be changed or cancelled without at least thirty (30) days written notice to the
Page 17 of 46
Lessor, and that (iii) the Lessor shall not be liable for any premiums thereon or subject to
any assessments thereunder.
Not%ithstanding anything contained herein to the c nt a y, in the event an authorize
Sublessees and Grantees.
Association chooses not to obtain insurance coverage to protect against loss
os 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. An
y parties who uently
of any title or possessory interest to a portion o he Demised Premises, tes, sh become upohders
rance
holders
provide, in a form satisfactory to Lessor, proof of customary and reasoallnable insur
adequate and sufficient to cover and protect all interests of the Lessor as set forth this
Article X, at least to the extent and value of that subsequent interest holder's insurable
interest. The same or similar procedures for the use and application of insurance proceeds
as set forth above may be required for subsequent interest holders and the same remedies
available to Lessor for Initial Lessee's failure to comply with such insurance requirements
shall be available to Lessor with respect to any future interest holders. Future interest
holders (including all Sublessees) shall name Lessor as an additional insured on any
required insurance policies.
ARTICLE XI
Insurance Premiums
Section ii.m 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. Sublessee
Association) fails to obtain and pay for the necessary insurance. ( g '
ARTICLE XII
Assisnment/Transfer
Section 12.01 Ass i nment b Initial Lease . Lessee may assign or sublease the
affordable unit(s) using its own ground lease or building lease as long as it contains
provisions for the affordable housing restrictions as set forth in this Lease and in the
Page 18 of 46
Monroe County Code and is consistent with other provisions herein. In the event that
I.ow Income Housing Tax Credit financing is obtained, provisions controlling
the rental amounts by such program shall be controlling. Lessor consents to
the assignment of Lessee's rights to a builder familiar with and experienced with low income housing tax credit financed projects to construct tproject
and finance the project by using Low Income Housing Tax Credit financing,
along with all duties and obligations of Lessee to construct and build, including
insurance and indemnification requirements under this Lease. Lessee shall be the managing entity and shall remain responsible for all duties
However
and obligations under this Lease regardless of any such assignment. 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 or
Restrictions. Therefore,
the Affordable Housing Units may be rented and occupied without the Initial Lessee
obtaining consent from Lessor for such subletting,
the guidelines set forth herein. In the event an Affordable Housing Unit is to be entedllow 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
es a
rental purposes, Initial Lessee shall have the right to assign its dutis property manager
remain responsible for performance of such duties by any designated properfor said Units to a third party without obtaining consent from Lessor, but shall ultimately
ty manager.
Section i2.o2 Initial Sale Lease of Unit B Develo er 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 contra
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe Cory
un,tyls
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.o Assi nment Transfer b 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,
Page 19 of 46
other than those mortgage interests provided for in Article XV, shall contain the foIlou ing
required Notice of Restrictions in a conspicuous location on the upper one-half of the first
page of the relevant instrument effectuating the interest in bold capital typed letters greater
than or equal to 14 point font:
NOTICE OF RESTRICTIONS
ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT
OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED
THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT
NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME,
MEANS, RESALE PRICE, RENTAL AND MORTGAGE LIMITATIONS,
INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL
RECORDS BOOK _, PAGE — OF THE PUBLIC RECORDS OF MONROE
COUNTY, FLORIDA.
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.
First Refusal.
--------�--.� �• .... �,u=lu .,.,cd,e tce uirements• Ki ht of
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 THATPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHA.P'I'ER 83LORIDA STATUTES, THE LESSOR SHALL NOT BE LL�BLE ORESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'SERSONAL PROPERTY.
Section LL 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.
Page 20 of 46
Section 12.0 Death of a nit 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, legatciaries
ees or benefi
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 si
is substantially in a form similar to that attached hereto as F,xh an a itt Dowdgement, which
devsees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable
All s uses, heirs,
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
Demised Premises do not extend to any degree so as to limit or inhibit theestates and leasehold or other interests granted in or conveyed with respect to any of the
in
operation of this Lease and the Affordable Restrictions, it d
beitent expressly and irrevocably
enta an
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 theAffordable Housing
Unit in accordance with the provisions of this Article XII and cooperate with the Lessor in
accomplishing same. It is the intent of this Lease, to the full extent Florida law permits,
that constitutional homestead rights not be construed to inhibit or limit the intended
operation of this provision.
Section 12.08 Administrative Fees. Lessee may not charge more than one half of one
percent (.00S%) administrative fee based on the sales price for the transfer of
improvements from one sublessee to another.
ARTICLE XIII
Condemnation
Section i .01 Eminent Domain- Cancellation. If, at any time during the continuance
of this Lease, the Demised Premises or an
y Portion thereof is taken,condemned by reason of eminent domain, there shall be such division of thep rocriat
eedsd or
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 suchof Rent or other
adjustments as are just and equitable, within thirty
made, then the matters in dispute shall be detemineddin accordance with mediatioward has n
according to the rules of the 16th Judicial Circuit in Monroe Coun n
rmination
made by the mediation shall be binding on the parties. If the legal title totheentire
Demised Premises be wholly taken by condemnation, the Lease shall be cancelled.
Page 21 of 46
Section i3.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 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 the earlier of one
hundred twenty (12o) days after the issuance of the building permits for the construction of
the Project or June 1, 2ou, and shall substantially complete construction of all 14 units
within eighteen (18) months thereafter. Certificates of occupancy shall be issued for all
fourteen (14) units no later than August 1, 2012. The foregoing limitation of time for the
completion of the Project may be extended by written agreement between the parties
hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers, letters
or other materials in their possession or under their control where such information is
subject to public disclosure under the provisions of Chapter 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
Page 22 of 46
any Records of the Lessee involving transactions related to this Agreement.
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
permits and licenses, provided that such approvals, permits and licenses shall be obtained
at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be
construed to obviate or lessen any requirements for customary development approvals from
any permitting authority, including the Lessor. Nothing in this Lease shall be construed as
the Lessor's delegation or abdication of its zoning authority or powers and no zoning
approval that Initial Lessee may require to complete its performance under this Lease has
been or shall be deemed agreed to, promise or contracted for by this Lease.
(e) Construction of the Project on the Demised Premises prior to and during the
Term of this Lease shall be performed in a good and workmanlike manner, pursuant to
written contracts with licensed contractors and in accordance with any and all requirements
of local ordinances and with all rules, regulations and requirements of all departments,
boards, officials and authorities having jurisdiction thereof. It is understood and agreed
that the plans and specifications for all construction shall be prepared by duly qualified
architects/engineers licensed in the State of Florida.
(fl 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
Page 23 of 46
to the Demised Premises in accordance with the requirements set forth in sub -paragraph
(e), above.
14.02 Access to the Proiect 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),
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, or State code or building inspectors, and the like, without limitation. Initial Lee 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, labor strikes, lockouts, riots, floods, earthquakes, fires,
casualties, acts of God, labor disputes, governmental restrictions, embargoes, litigation
(excluding litigation between the Lessor and the Initial Lessee), tornadoes, hurricanes,
tropical storms or other severe weather events, or inability to obtain or secure necessary
labor, materials or tools, delays of any contractor, subcontractor, or supplier, or
unreasonable acts or failures to act by the Lessor, or any other causes beyond the
reasonable control of the Initial Lessee, 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 Fin_ng
Section V; 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
Page 24 of 46
financing from private Iender are on substantially similar terms to those then existing by
the other lenders referred to in this Section), or to similar lending institutions authori
lender. zed to
make leasehold mortgage loans in the State of Florida, or to any public or quasi -public
(b) Until the time any leasehold mortgage(s) shall be satisfied of record,
when giving notice to the Initial Lessee with respect to any default under the provisions of
this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's
leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s)
(including assignments thereof) as recorded in the Public Records of Monroe County,
Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a
copy of such notice has been mailed to such leasehold mortgagee(s), which notice must
specify the nature of each such default. Initial Lessee shall provide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises, including modifications and
assignments thereof.
(c) In case the Initial Lessee shall default under any of the provisions of
this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such
default whether the same consists of the failure to pay Rent or the failure to perform any
other matter or thing which the Initial Lessee is required to do or perform and the Lessor
shall accept such performance on the part of the leasehold mortgagee(s) as though the same
had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the
date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section i5.oi
shall have, in addition to any period of grace extended to the Initial Lessee under the terms
in
and conditions of this Lease for a non -monetary default, a period of sixty
which to cure any non -monetary default or cause the same to be cured or toocommenc) days e 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.ol(d) prior to the cure provisions set forth in Section 15.01(c)
above, the Lessor will enter into a new Lease of the Demised Premises with the Initial
Lessee's leasehold mortgagee(s), or, at the request of such leasehold mortgagee(s), to a
corporation or other legal entity formed by or on behalf of such leasehold mortgagee(s) or
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
termination and such written request and such new Lease is accompanied by paent to
date of such
the Lessor of all amounts then due to the Lessor, including reasonable counsel ees court
costs and disbursements incurred by the Lessor in connection with any such default and
Page 25 of 46
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 i5.oi(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 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 leasehol
mortgagee(s) to pad
y all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition, immediately
upon receipt by the Lessor such new Lease, as provided in this Section 15.01(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 (10) days after a
written request therefore by the leasehold mortgagee(s), such assignment or assignments
shall be reduced to a writing in recordable form and executed, acknowledged and delivered
by the Lessor to the leasehold mortgagee(s).
(e) The Initial Lessee's leasehold mortgagee(s) may become the legal
owner and holder of this Lease by foreclosure of its(their) 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.
(fl In the event that a leasehold mortgagee shall become the owner or
holder of the Lessee's interest by foreclosure of its mortgage 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 is 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, where leasehold mortgagee 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 shall
lating to
be entirely freed and relieved of all covenants and obligations of performance re
construction, marketing and transfer to Sublessees and it shall be deemed and construed,
without further agreement between the Lessor and the mortgagee, or between the Lessor,
the mortgagee and the mortgagee's purchaser or assignee at any such sale or upon
assignment of Initial Lessee's interest by the leasehold mortgagee, that the purchaser or
assignee of Initial Lessee's interest has assumed and agreed to carry out any and all
Page 26 of 46
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 anv protections afforded the leasehold mortgagee under this Lease be
to permit eventual use of the Demised Premises for purposes inconsistent with construed
the Affordable Restrictions. h this Lease or
(g) Within ten (1o) days after Lessor's receipt of written request b • initial
Lessee or by Initial Lessee's leasehold mortgagee(s), or after receipt of such iA 'iy
in the event that upon any sale, assignment or mortgaging of Initial Lessee'5�
Lease by Initial Lessee or Initial Lessee's leasehold mortga ;,� s a tten request
be required from the Lessor, and the Lessor agrees to deliver rPcor rest in this
g O, n offset .dent shall
to any proposed leasehold morta ee s recordable, 'ertificate
���rtifying (if such be the case g g ()' Purchaser(s), a
Lessor has no knowledge of any default under hi) that this ps I P In f ' to t:,: ii) Lessee,
.. rorce and effect; (ii) Li.�t the
ttik n*►ire of the default; and (iii}that there a r or if any default exists s eci
may be a-. - -d by the Lessor against th !10 defenses or offsets which are knownnd
this Lease. g -essee with respect to any obligations pursuant to
(h) to a leasehold in,.essee's interest in this Lease shall be mortgaged
mortgagee(s), that t ,s agree for the benefit of such leasehold
or accept a surrender of this Lease or an
it, nor shall they c . 1, abridg; ierwise modify this Lease or accept
erial
Prepayments of instal; menu of Re. Y Part of
such mortgagee(s) in each instance come due without the prior written consent of
(i) Reference in thi,, .ease to acquisition of the Initial Lessee's interests '
this Lease by the leasehold mortgagee(s)�shall be deemed to refer, where c'
require, to acquisition of the Initialerest m
of foreclosure by the leasehold mortgagee() and pro this visionsaae b an circumstances
Mortgagee(s) in such instance or' shall also be applicable Y y purchaser at a sale
applicable to the leasehold
pp cable to any such purchaser(s).
�) 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 a t
Lessor's fee simple title to the Demised Premises without the prior written
leasehold mortgagee(s). In the event ofany such sale, grantor prior
ny portion s the
the Initial Lessee, the Lessor and the Lessee agree that n consent of such
shall create a merger of this Lease e L s fee simple title conveyance gran by the Lessor to
o such sale, grant re conveyance
subparagraph 0) shall not be construed to Prevent a sale,tg ant or conveyance
es. This
Lessor's fee simple title by the Lessor to an eyance of the
Initial Lessee, its successors, legal representatives and assigns, so long as this Y person, firm or corporation other than the
terminated. g s Lease is not
Page 27 of 46
(k) Reference in this Lease to the Initial Lessee's leasehold mortgagee(s)
shall be deemed to refer where circumstances require to the leasehold mortgagee(s)'s
assignee(s); provided that such assignee(s) shall record proper assignment instruments in
the Public Records of Monroe County, Florida, together with written notice setting forth the
name and address of the assignee(s).
(1) In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the
release of any and all applicable portions of its (their) mortgages) on the entire Demised
Premises so as to grant clear title to the Sublessee. The details and release payment
requirements shall remain within the reasonable business discretion of the Initial Lessee
and the leasehold mortgagee(s).
(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of riority with
p
respect to foreclosable interests or rights according to the laws
contractually agreed by and among multiple mortgagees, where there
of the State of Florida or as
are such.
Section 1 .02 Pe fitted Mort a es 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 100% 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 Ioans 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 he owner's and/or an
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
Lessor's rights to enforce same; of
Page 28 of 46
(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 pro,�Zsions of this Lease, said mortgagee, or the
purchaser at foreclosure, shall comply with the provisions of Article XII. No sale
of 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
r
Restrictions. Any Affordable Housing Unit accepted in lieu of foreclosure or as to which a
mortgagee intends to foreclose shall be subject to the Lessor's right of first refusal as set
forth in Article 12.05. Nothing herein shall preclude potential purchasers approved
Lessor from bidding at any foreclosure sale and, where successful hby
Affordable Housing Unit at the foreclosure sale price in accordance with Article e subect
XII and
(e) The parties recognize that it would be contrary to the fundamental
affordable housing concept of this Lease and an incentive to abuse Sublessee's authorization
to encumber its leasehold interest with a mortgage if Sublessee could realize more in loan or
Accordingly, Sublessee hereby irrevocably assigns to
sale proceeds than their permitted purchase or resale price as a result of any transaction.
Lessor (or the Monroe County Housin g
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 foreclyable to Sublessee to the
and satisfaction
the lien of any mortgage which would have otherwise been paf
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 a
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
kefault
Section 16 0, Notice of Default
this Lease in the Payment Lessee shall not be deemed to be in default under
yment of Rent or the payment of any other monies as herein required
unless Lessor shall first give to Lessee and any mortgagees ten (10) days written notice
such default and Lessee or any other party on its behalf fails to cure such default within to f
(10) days of verifiable receipt of said notice. n
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 Leanless
u
Lessor shall first give to Lessee and Mortagees thirtysuch
default, and Lessee fails to cure such default within the immediate thirtwrittey
notice of such
thereafter, or, if the default is of such a nature that it cannot be cured within thirty
days, Lessee fails to commence to cure such default within� (30) day period
fails thereafter to proceed to the curing of such defaultwithperiods diligence.
Mortgagees shall be entitled to cure Lessee defaults on the s thirty (30) days or
Possible diligence.
the Lessee. same terms and conditions as
Page 29 of 46
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
itial Lessee and
other parties, in addition to the other rights r remedisPt may dhaveto ,� shall haa the
immediate right to terminate this Lease according to law. In any action by Lessor asserting
a violation of the Affordable Restrictions, Lessee shall have the burden of proof with respect
to such matter. Termination of the Lease, under such circumstances, shall constitute
effective, full and immediate conveyance and assignment to Lessor of all of the Demised
Premises, improvements and materials and redevelopment rights to and associated with the
Demised Premises and the Project, subject to mortgagee protection as provided herein.
Furthermore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the
other rights or remedies it may have, shall have the immediate right of re-entry
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 Iiable for any
difference between the Rent that would have been payable under this Lease and the net
Rent for such period realized by Lessor, by means of such reletting. However, such Lessor
rights shall not abrogate a mortgagee's rights to the extent those rights do not conflict with
or injure Lessor's interests as established under this Lease. Personal property left on the
premises by a Sublessee may be stored, sold, or disposed of by Lessor, and Lessor accepts
no responsibility other than that imposed by law.
Page 30 of 46
Should Lessor elect to re-enter, as herein provded, or should Lessor take possession
pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may
either terminate this Lease or it may from time to time, without terminating this Lease, re -
let the Demised Premises or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease) and at such Rent or Rents and on such other
terms and conditions as Lessor in its sole reasonable discretion may deem advisable with
the right to make alterations and repairs to the Demised Premises. On each such re -letting
Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other
than Rent due under this Lease, the expenses of such re -letting and of such alterations and
repairs, incurred by Lessor, and the amount, if any, by which the Rent reserved in this Lease
for the period of such re -letting (up to but not beyond the term of this Lease) exceeds the
amount agreed to be paid as Rent for the Demised Premises for such period of such
re -letting.
Notwithstanding any such re -letting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach. Should Lessor at anytime
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach, including the cost
of recovering the Demised Premises, which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.0 Lessor's Ri h 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
days after receipt of written notice from Lessor specifying the nature of the ac or tof hing 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 Ioss, 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 an
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.
ection 16.o Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.0 . Affordable Restricti ns. 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,
Page 31 of 46
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 pbli ations
Section 17of Repair Obligations. During the continuance of this Lease the Lessee,
and every Sublessee with respect to their leased or purchased portions of the Demised
Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures,
landscaping and equipment which are brought or constructed or placed upon the Demised
Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste or neglect
of any building or other property to be committed, except for that of normal wear and tear.
The Lessee will repair, replace and renovate suchproperty
order to keep the buildings and other roe � often as it may be necessary in
first class repair and condition. Additionally, essor hall nohich is the t be requect ired oer of tfurnhis Lease
sh a In
services or facilities, including but not limited to heat, electricity,any
or to make any repairs to the premises or to the Affordable Housing Units.conditioning or water
ARTICLE XVIII
Additional Covenants of Lessee Lessor
Section 18 of Le al 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 1.8.02 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 ofsome or all improvements shall thereupon revert to
Lessor.
Page 32 of 46
Section 18.Recovery of Liti at;-- Expense. In the event of any suit, action or
proceeding, at law or inequity, 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.o4 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as -is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
Lessor as to the nature, condition or usability of the Demised Premises, or the uses to which
the Demised Premises may be put. The Lessor shall not be responsible for any latent defect
or change of condition in the improvements and personalty,
or of titl, and the
hereunder shall not be withheld or diminished on account of�any defect in such tit eent 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 i8 o- 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.
Page 33 of 46
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 i8.o6 Recordation. Lessee, or Lessor at Lessee's expense, shall within five
(5) business days after execution of this Lease record a complete, true and correct copy of
the Lease and any addenda or exhibits thereto and any Related Agreement(s) in the Public
Records of Monroe County, Florida and shall provide Lessor with the written Clerk's receipt
of the book and page number where recorded and the original Lease and Related
Agreement(s) after recordation.
ARTICLE XIX
Reuresentations Warranties of Title and Ouiet Enjo ent
and No Unlawful or Immoral Pur ose or Use
Section moi Representations Warranties of Title and Quiet Enio ent. Lessor
represents and warrants that to its knowledge, there are no material claims, causes of action
or other proceedings pending or threatened in respect to the ownership, operation or
environmental condition of the Demised Premises or any part thereof. Additionally, the
Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of
the covenants and conditions required by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continued possession of the Demised Premises from
claims by Lessor.
Section 1Q o2 No Unlawful or Immoral Pur ose or Use
has any interest . The Lessee, as long as it
in 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 2o.m 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
Page 34 of 46
the Lessor and Lessee and their respective heirs, legal representatives, successors and
assigns, though this provision shall in no way alter the restrictions on assignment and
subletting applicable to Lessee hereunder. The parties agree that all covenants, promises,
conditions, terms, restrictions and obligations arising from or under this Lease and the
Affordable Restrictions benefit and enhance the communities and neighborhoods of
Monroe County and the private and public lands thereof, and have been imposed in order to
assure these benefits and enhancements for the full Term of this Lease. It is intended
where appropriate and to serve the public purposes to be furthered by this Lease, that its
provisions be construed, interpreted, applied and enforced in the manner of what is
commonly referred to as a "deed restriction."
Section 20.02 No Waiver. Time is of the essence in the performance of the
obligations of the parties hereto. No waiver of a breach of any of the covenants in this Lease
shall be construed to be a waiver of any succeeding breach of the same covenant.
Section 20.0Written 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 an
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 A rPp•,,o
the Preamb
written addenda and all exhibits hereto (all of which are expressly includingnt�. This Lease, i cp
or orated and any
erein by
this reference) shall constitute the entire agreement between the parties with respect to this
instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20 0� Notices, If either party desires to give notice to the other in
connection with and/or according to the terms of this Lease, such notice shall be given by
certified mail return receipt requested or by national overnight tracked and delivery -receipt
courier service, and unless otherwise required to be "received", it shall be deemed given
when deposited in the United States mails or with the courier service with Postage or
courier fees prepaid. Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is to be given, or the addition of one
additional person or location for notices to be given, but no such change shall be effective
unless and until it shall have been accomplished by written notice given in the manner set
forth in this Section. Notification 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 and Initial
Page 35 of 46
Lessee shall be as set forth herein, to both of the followg in offices, unless a different method
is later directed as prescribed herein or by the
Affordable Restrictions:
Initial Lessee. mail
Habitat for Humanity of the
Upper Keys, Inc.
PO Box 2151
Key Largo, FL 33037
Courier:
9897o Overseas Hwy
Key Largo, FL 33037
Lessor:
ICounty Administrator
Monroe County
Gato Building
1100 Simonton Street
Key west, FL 33040
and
MONROE COUNTY ATTORNEY
PO Box 1026
Key West, Florida 33041
Tel. 4nzz_on.,_ ..
Section 20.06 Joint Liabili v consist of more than one arson' such If the parties upon either side
(Lessor and Lessee)
Lease.
covenants of this persons shall be jointly and severally liable on the
Section 2 .o Liabili Continued• Lessor Liabili
Lessee mean the persons who, from time to time
Lessor and Lessee. In the event of an me nme All references to the Lessor and
liabilities that may have been incurred prior to t ' occupy the positions, respectively, of
g n, of this Lease by the Lessor, except for
dealt with differently herein, the Lessor's liability
he date r the assignment or as specifically
such assignment. In addition, the Lessor's liability
under this Lease shall terminate upon
dealt with differently herein, shall be at all times limited
ty under this Lease, unless specifically
Demised Premises. to the Lessor's interest in the
Section 20.08 Ca -ions. The captions used in this
reference only and in no way define, limit or describe the scope
are for convenience of
affect this Lease. ope or intent of or in any way
Section 20.o Table of�on��enp, The index precedingt
cover is for the purpose of the onvenience of reference o
construed in any way as part of this Lease, nor as this Lease under the same
thereof. only and is not to be deemed or
s�ipplemental thereto or amendatory
Section 20.10 Governin
laws of the State of Florida, and,have venue for any s
This Agreement shall be construed under the
the terms and conditions a, this Lease shall be in Circuit C
legalproceeding to enforce or determine
Monroe County, Florida. Dort for the 16ch
Judicial Circuit,
Section 20.11 Holdin ver. Any holding over after the expiration of the Term of
Page 36 of 46
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 v2 Partial Invalidity. If any provision of this Lease or the application
thereof to any person or circumstance shall at any time or to any extent be held invalid or
unenforceable, the remainder of this Lease or the application of such provision to persons
or circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby.
Section 20.1 Force Maieure. 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
or economic conditions shall not be considered a basis for such extension.
Section qnic Lessor Lessee Relationshi Non -Reliance hu 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 parry 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 2o.i6 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
Page 37 of 46
redevelopment rights to and associated with the Demised Premises and the Project, subject
to mortgagee protection as provided herein.
Section 20 1 7 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 Y8 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 measures to reduce mold. Lessor shall not be responsible for
mold testing for any persons purchasing, leasing or occupyingan
y portion of the Demised
Premises, and all owners, Lessees and Sublessees shall hold Lesor harmless and indemnify
Lessor for damages or claims related thereto and release Lessor from same.
Section 20.1 Subsequen_ t Changes in Law or Re ulation. Where a change can
reasonably be applied to benefit, enhance or support
affordable housing oals,
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 applica
and enforceability, without limitation. In such instance, this Lease shalt be construed or, tion
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 Bre ch of Related A eements 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 an
y performance under this
Lease, any material breach under such other agreement shall be mate al 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
Page 38 of 46
right to proceed under any other mechanism at any time or in any particular sequence.
Section 20 22 Sunnlemental 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 cts and legal
effect of an allegedly unauthorized "offer to rent", or, for another example an unauthonied
"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.
Section 20.2 Exce tions to Lease Rental Prohibition. Under this Lease, rental of
Affordable Housing Units by the initial Lessee 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 20.2 Draftin of Lease and an Related A reement. 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 2o.2iz 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,
Page 39 of 46
Sublessees, mortgagees, title insurers, closing agents, government agencies and the like
regarding any relevant terms and conditions contained herein.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seats, as of the day and year above written.
ATTEST:
DANNY L. KOLHAGE, CLERK
STATE OF FLORIDA
COUNTY OF MONROE
ALES�&UNTY
1 eugent
MONaOE coUNTY ATTORNEY
C 10 AST FORM
T—
The foregoing instrument was acknowledged before me this
day of
' 2009, by (- ��_, as President of�'f
who isA� rsonally known to me, or who [ J has produced a
`•
u I drivers license as identification.
Notary Public
mr0 A0
Page 40 of 46
LAURA LAMORARRF2420
�a►� a
Nobly Fu* . of ^�Au9Coe **n E DD N
BOWN By NObW Notary Assn.
A par- of the Northeasterly 1--5� feet of Block 2, mia-dalay, according
to the Plat thereof, as recorded in Plat Book 1, at Page 194 of the
Public Records Of Monroe County, Florida be ng More particularly
described as follows:
Beginning at the Northwesterly corner of the Northeasterly 1251 feet
of Block. 3, aforementioned Piat Of Mandalay, run Northeasterly along
the Northwesterly line of said Block 3 for a distance of 99-99 feet
to a poirt of curvature; 'hence in a Southeasterly direction a.loncy
the arc, Of a curve concave to 'he South, having a radius of 25�.Gjc
feet and a delta angle of 90 degrees 01 minutes 03 seconds for a
distance of 39.28 feet; thence run in a Southeasterly airection
along the Northeasterly line of said Block 3 for a distance of
125.15 feet; thence run with a deflection angle to the right of 90
degrees 00 minutes 00 seconds from the last described course for a
distance of 44.50 feet; thence run with a deflection angle to the
right of 90 degrees 00 minutes 00 seconds from the last described
course -for a distance of 47.97 feet; thence run with a deflection
angle to the 'eft of 90 degrees 00 minutes 00 seconds from the last
described course for a distance of 62.50 feet; thence run with a
deflection angle to the left of 90 degrees 00 minutes 00 seconds
from the last described course for a distance of 75.97 feet; thence
run with a deflection angle to the left of 90 degrees 00 minutes 00
seconds from the last described course fora distance of 107.00 feet
to the Northeasterly line of said Block 3; thence run with a
deflection angle to the right of 90 degrees 00 minutes 00 seconds
and Southeasterly along the Northeasterly line of said Block 3 for a
distance of 46.88 feet to a- point Of curvature; thence in a
Southwesterly direction along the arc of a curve concave to the
West, having a radius of 25.00 feet and a delta angle of 89 degrees
59 minutes and 30 seconds for a distance of 39.27 feet; thence run
in a Southwesterly direction along the Southeasterly line of said
Block 3 for a distance of 100.00 feet; thence run with a deflection
to the right of 90 degrees 00 minutes 30 seconds from the last
described course for a distance of 250.02 feet back to the Point of
Beginning, containing 24,990.66 square feet, more or less.
A part of the Northeasterly 125 feet of Block 3, Mandalay, according
to the plat thereof as recorded in Plat Book 1, at Page 194 of the
Public Records of -.Monroe County, Florida, being more particularly
described as follows:
Commencing at the Northwesterly corner of the Northeasterly 125 feet
of Block 3, aforementioned Plat of Mandalay, run northeasterly along
the Northwesterly line of said Block 3 for a distance of 99.99 feet
to a point of curvature; thence in a Southwesterly direction alona
the arc of a curve concave to the South, having a radius of 215.00
feet and a delta angle of 90 degrees 01 minutes 03 seconds for a
i
distance of 39.28 feet, thence run n a Southeasterly direction
along the Northeasterly line of said Block 3 for a distance of
125.15 feet to the point of beginning of the parcel hereinafter
described, thence run a defection angle to the right of 90 degrees
00 minutes 00 seconds from the last described course for a distance
of 44.50 feet, thence run with a deflection angie to the right of go
degrees 00 minutes 00 seconds from the 'Last described course for a
distance of 47.97 feet, thence run with a deflection angle to the
left of 90 degrees 00 minutes 00 seowds from �he last Jescribe'J
course for a distance of 75,97 feet, `hence run with I jefiecrian
angle tc the left of 90 degrees Cr minutes 00 seconos from the last
aescribed course for a distance of jk�v.C(, feet to the Northeasterly
line of said Block 3, thence run with ;I deflection angle to the left
Of 90 degrees 00 minutes 00 seconds and Northwesterly along the
Northeasterly line of said Block 3 for a distance of 28.00 feet back
to the point of beginning, containing 5994-29 square feet,
less. more or
Page 42 Of 46
EXHIBIT B
SITE PLAN AND ELEVATIONS WITH DIMENSIONS ARE NOT
AVAILABLE AT THIS TIME
CONDITIONAL USE APPROVAL AND SITE PLAN APPROVAL WILL BE OBTAINED
THROUGH MONROE COUNTY
Page 43 of 46
This Instrument Prepared By:
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
This Agreement is made as of
("Lessee").
_, 200 by and between
("Lessor") and
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: _
Tile:
ATTEST: DANNY L. KOLHAGE,
CLERK WITNESS:
Deputy Clerk Print Name:
WITNESS:
Print Name:
Page 44 of 46
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 Twill 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
Page 45 of 46
cannot be rented to third parties without the ,%Titten approval of the
Lessor.
• I understand that in the event that I die, my home may be deNised 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
Page 46 of 46
Occupant Signature
This Instrtunent Prepared By,
Record and Return to:
MEYER & ERSKINE
31211 Avenue A
Big Pine Key, FL 33043
Parcel ldentifrcation Number.00554720, 00534720=000100
f XONRO9 COUNTY
+ OPPICIAL RBCOROS
RIL9 f 1 2 6 1 3 3 9
BX11 7 3 1 PGi2 5 0
BCD Oct 11 2991 12,14PH
DANNY L ROLBAGB, CLBBR
SPACE ABOVE THIS r1NG FOR RBCORDING DATA
THIS' INDENTURE, made two.2 nay of c&p j- , 2001, between, MONROE COUNTY
COMPREHENSIVE PLAN LAND AUTHORITY, a land authority under Section 380.0663(1), Florida Statutes
and West, FL 33040 � THE MONROE, COUNTYHHOUSING Ula HORITYis I wh sa�addrrsa iv=s,1403 2th Strea,
Key West, FL 33040,GRANTESO.
(Wherever used herein the terms "Grantor" and "Grantee" shall include all the parties to this insbument and heirs, legal representatives, and assigns of individuals, and the successors and assigns of oorporations.)
W17NESSFTX, That said Grantor, for and in eousideratiOn of the sum of THN AND 001100 (31o.0o)
DOLLARS emofis otacknoher d and le eoatasideratioq to said Grantor in hand paid by said Grantee, the receipt
the Grantee and Grantee's hasuccessors and asa�gasis' ttwicr aliens,
following�n�Cmi�� � located m � County
of MONROE, State of Florida, to -wit;
SEE LEGAL DESCRnMON ATTACRED HERETO AS EXHIBIT "A"
SUBJECT TO: Restrictions as contained in Monroe County Comprehensive Plan
Load Authority Resolution No. 06-2001, attached hereto and made a part hereof
as Exhibit "H".
SUBJECT TO all restrictions, reservations and eaw=mts of record, if any; zoning restrictions and
prohibitions imposed by governmental authority, and taxes for the year 200o not yet due and payable.
TOGE"M WITH all the tenements, hereditament$ and appurtenances thereto belonging or in anywise
appertaining.
TO HAVEAND TOHOLD, the some in fee simple forever.
AND 7HESAfDGR.INTORdoesherebyeovenaatwiththeridOnmteetbatthoorantorislawfull seized
ofsaid land in fee simple; that the Grantorhas good right and lawful authority to Sell and convey said lend, and hereby
Polly warrants the titk to said land and wilt defend the same against the lawfirl claims of an Persons whomsoever.
written. IN WITNESS MM"OA, Grantor has hereunto set Grantor's hand and seal this day and year first above
Signed, sealed and delivered in the presence of
Witness Signature
MONROE COUNTY COMPREHENSIVE
Printed Signal RK RD541 PLAN LAND AUTHORITY
Wi
'1ZoRa0.-T;' rrottA(WII.LIAMS,CHAIRMAN
Pr m= Signature
STATE OF FLORIDA
COUNTY OF MONROE
The foregoin instrument was acknowledged before me this '2 day of 5 2001 b NORA
WILLIAMS who are personally known to me or ( ) prods Y
' as identification.
I" TOM. ►ugl w
�''►� tr.sayw.moo
ENMIT "A" P I L 8 8 3. 2 6 1 3 3 9
BRt1731 PG/251
A part of the Northeasterly 125 feat of Black 3, Mandalay, according to the Plat thertol; as
recorded in Plat Book 1, at Page 194 of the Public Records ofMonroe County, Florida, being
more particularly deco as follows
Beginning at the Northwesterly comer of the Northeasterly 125 feet of Block 3, aforementioned
Plat of Mandalay, run Northeasterly along the Northwesterly line of said Block 3 for a distance
of 99.99 feet to a poi of curvature thence in a South
concave to to So�Y direction along the arc, of a curve
seconds for a a radius of 25.00 feet and a delta angle of 90 degrees Ql minutes 03
distance of39.28 feet; thence run in a Southcastedy
NortheasterlyOn al g the
alice of said Block for a distance of M,155 fe theme nun with na deB�on
right of 90 degrees 00 minutes 00 seconds goln the laa
distance of 44.50 feet; thence run with a deflection angle to the rigsstdeof 90scribed degreescours00e mifor nuutes 0o
seconds fiom the lest described course for a distance of 47.97 feet; thence rut, with a deflection
angle to the left of 90 degrees 00 minutes 00 seconds from the last described course for a
distance of 62.50 feet; thence run with a deflection angle to the left of 90 degrees 00 minutes 00
seconds ftru the last described course for a distance of7S.97 feet; thence nun with a deflection
angle to the left of 90 degrees 00 minutes QO seconds from the last described tourer for a
distance of 107.00 feet to the Northeasterly line of said Block 3: thence run with a deflection
angle to the fight of 90 degrees 00 minutes QO seconds and Southeasterly along the MO astpiy
ecti
Ilse of said Block 3 for a distance of 46.88 feet tD a point of Curvatures thence in a soutwesteriy
directioa along the are of a curve concave to the West, having a radius of 25.00 feet and a delta
angle of 89 degrees 59 minutes 30 seconds for a distance of 39.27 fees; thence run in a
Southwesterly direction along the Souteasterly line of said Block 3 for a distance of 1Q0.00
feet; thence run with a deflection to the right of 90 degrees 00 miu m" 30 seconds S om the last
described course for a distance of 250.02 feet back to the Point of'Begi 30 con
24,990.66 square feet, rnow or Ica. raining
AND tM:
A part of the Northeastedy,12S feet of Block 3, Mandalay, 4
recorded in Plat Book 1, at page 194 of the public Records Monroe o the
Plat thereof as
more particularly described as follows: �Y, Florida, being
Commencing at the Northwesterly comer of the Northeasterly 125 feet of Block 3
aforementioned Plat of Mandalay, rem Northeaster along Northwesterly 3 for a distance of 99.99 feet to a point ofrd'e ly al the No Y line of said Block
the era ota curve concave to the Son �; thence in a Southwesterly direction along
degrees Ol minutes 03 s t, having s radius of 25.00 feet and a defy& angle of 90
direction along fire Norte for a diFtemce of 39.28 feet, thence run in a Southeasterly
beginning of the parcel her Y line of said Block 3 for a distance of 125.15 feet to the point of
degrees 00 minurtes 00 secondsetnaft r described, thence rem a deflection angle to the ri
run with a deflection angle he rem the Iasi described course fora g 8 of 90
described right
of et degrees 00 minutes 00 seconds from the fast
coerce fora distance of 4T,97 feet, thence run with a deflection angle to the left of 90
degrees 00 minutes 00 seconds from to last rune with a deflection angle to the left of la degrees described *ours* for a distance of 75.97 feet, thence
described course for a distance of 107.00 minutes 00 "con& ftn the last
run with a deflection angle to the Io8 of 90 the Northeasterly lino of said Biotin 3. thence
along the Norteasterl3, line of said Block 3 forW distaned 00 ce 8 00 feel back to th00 seconds and Northwesterly
�
beginning, containing 1994.29 square fec% more or less,