Item I4 1.4
G BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
June 19, 2019
Agenda Item Number: I.4
Agenda Item Summary #5630
BULK ITEM: Yes DEPARTMENT: Planning/Environmental Resources
TIME APPROXIMATE: STAFF CONTACT: Emily Schemper(305) 289-2506
n/a
AGENDA ITEM WORDING: Approval of Amendment 42 to an Interlocal Agreement (ILA)
between Monroe County and the City of Marathon transferring 52 low income and 3 very low
income (55 total allocations) Affordable Housing ROGO allocations from the County to the City.
The amendment is necessary to reflect the name change of the project developer to Marathon Key
Housing Partners, LP (previously Key Vaca, LLC).
ITEM BACKGROUND:
On August 16, 2017 the City of Marathon and Monroe County entered into a revised Interlocal
Agreement(ILA) transferring 52 low income and 3 very low income(55 total) Affordable Housing
ROGO allocations to the City to be utilized in a project in the ownership of Key Vaca, LLC. This
ILA replaced a previously BOCC approved ILA (December 14, 2016)with the City of Marathon for
the Keys Affordable Development III, LLC, for a project that proposed developing 55 new
affordable housing units.
On April 17, 2019, the BOCC approved Amendment 41 to the ILA, extending the deadline for
certificates of occupancy for the project from December 31, 2019 to December 31, 2021, at the
request of the City of Marathon.
The City of Marathon is now requesting Amendment 42 to the ILA, in order to do the following:
1. Change the name of the developer from Key Vaca, LLC, to Marathon Key Housing Partners, LP;
and
2. Include the time extension approved in April 2019, requiring certificates of occupancy for the
project by December 31, 2021.
The City of Marathon approved Amendment 42 to the ILA at their May 28, 2019 City Council
Meeting (City of Marathon Resolution 2019-54).
The Interlocal agreement approves the transfer of Affordable Housing ROGO Allocations to the City
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of Marathon, contingent on the project receiving a certificate of occupancy for the affordable units
related to such allocations prior to December 31, 2021. In the event the subject project fails to
complete the construction as evidenced by issuance of a certificate of occupancy for all 55 units by
the City of Marathon, the ROGO allocations shall revert to Monroe County.
The request is for the following properties:
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PREVIOUS RELEVANT BOCC ACTION:
August 16, 2017 — BOCC approved an Interlocal Agreement with the City of Marathon transferring
52 low income and 3 very low income (55 total allocations) Affordable Housing ROGO Allocations
from Monroe County to the City of Marathon for an affordable housing project to be located on
property in the ownership of Key Vaca, LLC. This ILA replaced a previously BOCC approved ILA
(December 14, 2016) with the City of Marathon for the Keys Affordable Development HI, LLC, for
a project that proposed developing 55 new affordable housing units.
April 17, 2019 — BOCC approved Amendment 41 to the subject Interlocal Agreement extending the
deadline for certificates of occupancy for the project from December 31, 2019 to December 31,
2021.
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
ILA Amendment 2 Marathon Housing 190528
ILA Amendment 2 Marathon Housing Comparison 190528
Resolution 2019-54 Marathon Housing ILA Amnd 2 190409
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
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N/A
REVIEWED BY:
Steve Williams Completed 05/31/2019 4:00 PM
Emily Schemper Completed 06/04/2019 4:12 PM
Assistant County Administrator Christine Hurley Skipped
06/04/2019 11:51 AM
Maureen Proffitt Completed 06/04/2019 4:14 PM
Budget and Finance Completed 06/04/2019 4:20 PM
Maria Slavik Completed 06/04/2019 4:25 PM
Kathy Peters Completed 06/04/2019 4:27 PM
Board of County Commissioners Pending 06/19/2019 9:00 AM
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AMENDMENT 2
INTERLOCAL AGREEMENT BETWEEN MONROE
COUNTY AND THE CITY OF MARATHON
TRANSFERRING AFFORDABLE HOUSING
RESIDENTIAL DWELLING UNIT ALLOCATIONS
This Agreement ("Agreement") is made and entered into this day of , 2019, by
and between Monroe County, a political subdivision of the State of Florida, whose address is 1100
Simonton Street,Key West,Florida 33040("County"),and the City of Marathon, a municipal corporation
of the State of Florida,whose address is 9805 Overseas Highway,Marathon,Florida 33050(the"City").
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WHEREAS, Monroe County and the City of Marathon recognize the value of regional
partnerships in smart growth; and
WHEREAS,Policy 101.2.15 of the Year 2010 Monroe County Comprehensive Plan allows Rate
of Growth Ordinance building permit allocations (hereinafter"affordable housing ROGO allocations" or
"affordable ROGOs") for affordable housing projects to be pooled and transferred between local
government jurisdictions within the Florida Keys Area of Critical Concern, if accomplished through an
interlocal agreement between the sending and receiving local governments;and
WHEREAS, Chapter Five (5) of the City Comprehensive Plan identifies goals, objectives and
policies to provide for development pursuant to intergovernmental coordination and interlocal 00
agreements; and `O
WHEREAS, Monroe County and the City of Marathon have previously entered into Interlocal
Agreements to transfer affordable ROGOs; and
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WHEREAS, Monroe County and the City of Marathon recognize the potential economic value
of such transferable affordable ROGO allocations; and
WHEREAS, this Agreement is entered into pursuant to Florida Statutes, Section 163.01, et seq.,
Florida Interlocal Cooperation Act of 1969, which states: cv
"It is the purpose of this section to permit local governmental units to make the most E
efficient use of their powers by enabling them to cooperate with other localities on a basis
of mutual advantage and thereby to provide services and facilities in a manner and E
pursuant to forms of governmental organization that will accord best with geographic,
economic, population, and other factors influencing the needs and development of local
communities";and
WHEREAS, the comprehensive plans of Monroe County and the City of Marathon expressly
identify interlocal agreements as a means of resolving issues mutually affecting their respective
jurisdictions;and
WHEREAS, Marathon Key Housing Partners, LP, pursuant to City Resolution , has an
approved Conditional Use Permit for a project that includes fifty-five (55) affordable housing units
pertaining to the following site:
See Attachment"A"
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WHEREAS, the parties have determined that this Agreement is in the best interests of the public
and the public health,safety,and welfare.
NOW,THEREFORE, the parties hereto agree as follows:
Section 1. TRANSFER: The parties agree to permit the transfer of 55- affordable housing ROGO
allocations, comprised of fifty-two (52) low-income category and three (3) very-low income category
affordable housing ROGO allocations, from Monroe County to the City of Marathon for allocation, U)
pursuant to this Agreement,and subject to the conditions contained herein, including but not limited to:
Marathon Key Housing Partners, LP, or its assignee and successors-in-interest, acting on its Conditional LO
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Use Permit approval from the City of Marathon; and
Marathon Key Housing partners,LP,or its assignee and successors-in-interest,constructing and obtaining
a Certificate of Occupancy for all of the affordable housing units, situated upon the subject property
described herein, related to the transferred affordable housing ROGO allocations subject of this Interlocal
Agreement, prior to December 31, 2021 (subject to extension for force majeure as approved by Monroe
County); and
The recording of a 99-year Affordable Housing Deed Restriction on all of the affordable housing units
contemplated herein, in accordance with this Agreement, and in accordance with the applicable
requirements of the Code of Ordinances, City of Marathon, Florida and similar requirements of the
Florida Building Code (FBC).
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Section 2. ASSIGNMENT: Monroe County has assigned its rights to the affordable housing ROGO
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allocation contemplated herein to the City, and the fifty-five (55) affordable housing ROGO allocations
are to be issued by the City in consideration of the Conditional Use Approval pursuant to City Resolution
issued and assigned to property owned by Key Vaca, LLC and/or Marathon Key Housing
Partners, LP as its assignee (Legal Description attached as Exhibit "A"). In the event the subject project
or, as applicable, Marathon Key Housing Partners, LP, or, as applicable, its assign(s) and successor(s) in
interest or title, fail to complete the construction as evidenced by issuance of a Certificate of Occupancy
for all fifty-five (55) units by the City of Marathon, any units which have not received a Certificate of
Occupancy shall result in those allocations reverting to Monroe County and to their former status under
the Agreement(subject, however, to Section 25 below); no amendment to this Agreement is necessary or
required to trigger this automatic reverter clause.
Section 3. TERM: Subject to and upon the terms and conditions set forth herein, this Interlocal
Agreement shall continue in force until one of the following occur:
The project does not complete construction and does not obtain Certificates of Occupancy for all fifty-
five (55) affordable housing units contemplated herein by December 31, 2021 (subject to extension for
force majeure as approved by Monroe County). All affordable housing units for which Certificates of
Occupancy are issued prior to December 31, 2021 shall remain subject to this Interlocal Agreement
irrespective of whether all 55 affordable housing units contemplated herein receive Certificates of
Occupancy.
Section 4. NOTIFICATION: The City of Marathon shall immediately notify Monroe County of any
assignment(s) and successor(s) in interest or title to Marathon Key Housing Partners, LP for the duration
of Marathon Key Housing Partners, LP's interest(s) in the affordable housing ROGO allocation
contemplated herein, and shall immediately notify Monroe County of any assignment(s) and successor(s)
in interest or title to the affordable housing ROGO allocations contemplated herein above at least thirty
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(30) business days prior to the date of such transfer or succession by certified U.S. Postal Service
Certified mail to the Monroe County Planning &Environmental Resources Senior Director. The City of
Marathon shall further provide prompt written notice to Monroe County of the extension, termination, or
expiration of the aforesaid Conditional Use Permit for project contemplated herein.The City of Marathon
shall further provide prompt written notice to Monroe County of the issuance of Certificates of
Occupancy for the subject affordable housing units within thirty (30) business days after issuance of said
Certificates.
All-such notices under this-Section("Section 4.") shall be sent to the following addresses:- -
Monroe County County Administrator LO
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1100 Simonton Street,Key West,FL 33040; and
Monroe County Planning&Environmental Resources Department
Attn: Senior Director
Subject: City of Marathon Interlocal Agreement
2798 Overseas Highway,Marathon,FL 33050; and
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With a copy to:
Monroe County Attorney's Office
Attn: County Attorney
Subject: City of Marathon Interlocal Agreement
P.O.Box 1026 00
Key West,FL 33041LO
Failure of the City of Marathon or Marathon Key Housing Partners, LP or their assign(s) or successor(s)
in interest or title, to perform any act required by this Interlocal Agreement shall neither impair nor limit S
the validity of this Agreement or limit its enforceability in any way.
Section 5. CONSTRUCTION AND INTERPRETATION: The construction and interpretation of this
Interlocal Agreement and Monroe County Code(s) provisions in arising from, related to, or in connection
with this Agreement, shall be deferred in favor of Monroe County and such construction and
interpretation shall be entitled to great weight on trial and on appeal.
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Section 6. NO WAIVER: Monroe County shall not be deemed to have waived any rights under this
Interlocal Agreement unless such waiver has been expressly and specifically provided.
Section 7. LIMITATION OF LIABILITY: In the event of any litigation related to, arising from, or in
connection with this Interlocal Agreement, the parties hereto and Marathon Key Housing Partners, LP,
and its assignees and successors-in-interest,hereby agree to expressly waive their right to a jury trial.
Section 8. DUTY TO COOPERATE: When required to under this Interlocal Agreement, the City of E
Marathon and Marathon Key Housing Partners, LP, and its assignees and successors-in-interest, shall, to
ensure the implementation of the government purpose furthered by this Agreement, cooperate with
Monroe County's reasonable requests,regarding the conditions and provisions contained herein.
Section 9. GOVERNING LAWS/VENUE: This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida and the United States. Exclusive venue for any dispute
arising under this Agreement shall be in the Sixteenth Judicial Circuit in and for Monroe County,Florida.
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In the event of any litigation, the prevailing party is entitled to a reasonable attorney's fee and costs.This
Agreement is not subject to arbitration.
Section 10.NONDISCRIMINATION: The parties agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent jurisdiction that
discrimination has occurred, this Agreement automatically terminates without any further action on the
part of any parry, effective the date of the court order. The parties agree to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but
are not'-limited-to (1) Title YI of the Civil Rights Act of 1964 (P.L.t 88=352) which prohibits
discrimination on the basis of race, color, or national origin; (2) Section 504 of the Rehabilitation Act of
1973, as amended 3) U.S.C. s. 1975, as amended (42 U.S.C. ss. 6101.6107)), which prohibits LO
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discrimination on the basis of age; (4) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255),
as amended, relating to nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol
Abuse and Alcoholism Prevention,Treatment and Rehabilitation Act of 1970(P.L. 91-616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health Service
Act of 1912., ss. 523 and 527 (42 U.S.C. ss. 290 dd-3 and 290 ee(03), as amended, relating to
confidentiality of alcohol and drug abuse patient records; (7) The Americans With Disabilities Act of
1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on
the basis of disability; (8) The Civil Rights Act of 1992 (Chapter 760, Florida Statutes, and Section
509.021, Florida Statutes), as may be amended from time to time, relating to non-discrimination; and (9) E
any other nondiscrimination provisions in any federal or state statutes or local ordinances which may
apply to the parties to, or the subject matter of,this Agreement.
Section 11. CODE OF E1`MCS: The parties agree that their officers and employees recognize and will be 00
required to comply with the standards of conduct relating to public officers and employees as delineated in LO
Section 112.313, Florida Statutes regarding, but not limited to, solicitation or acceptance of gifts; doing
business with one's agency;unauthorized compensation;misuse of public position;conflicting employment or
contractual relationship;and disclosure or use of certain information. S
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Section 12. NO SOLICITATION/PAYMENT: The parties warrant that, in respect to itself, it has neither
employed nor retained any company or person, other than a bona fide employee working solely for it, to
solicit or secure this Agreement and that it has not been paid or agreed to pay any person, company,
corporation, individuals,or firm,other than a bona fide employee working solely for it,any fee,commission,
percentage, gift, or other consideration contingent upon or resulting from the award or making of this
Agreement.For the breach of violation of this provision, each party agrees that the other party shall have the
right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or
otherwise recover the full amount of such fee,commission,percentage,gift,or consideration.
Section 13. SUBORDINA'TION: This Agreement is subordinate to the laws and regulations of the
United States and the State of Florida, whether in effect on commencement of this Interlocal Agreement
or adopted after that date.
Section 14. INCONSISTENCY: If any item, condition, or obligation of this Agreement is in conflict
with other items of this Agreement, the inconsistencies shall be construed so as to give meaning to those
terms which limited the County's responsibility or liability.
Section 15. PUBLIC ACCESS TO RECORDS: The parties shall allow and permit members of the
public reasonable access to, and inspection of, all documents, papers, letters or other materials subject to
the provisions of Chapter 119, Florida Statutes, and made or received by the parties in conjunction with
this Agreement.
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Section 16. NON-RELIANCE BY THIRD-PARTIES: Other than as stated herein, no person or entity
shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce
any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and
the parties agree that neither the County nor the City, or any agent, officer, or employee of each shall have
the authority to inform, counsel, or otherwise indicate that any particular individual or group of
individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart,
inferior to, or superior to the community in general or for the purposes contemplated in this Agreement.
m Section 17'-NO PERSONAL LIABILITY: No covenant or agreement-contained-herein shaft be deemed- ,.m......
to be a covenant or agreement of any member, officer, agent or employee of a party in his or her
individual capacity, and no member, officer, agent or employee of a party shall be liable personally on LO
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this Agreement or be subject to any personal liability or accountability by reason of the execution of this
Agreement.
Section 18. NOTICES: In addition to those communications and notice requirements set forth in Section
4. of this Agreement, all notices and other communications hereunder must he in writing and addressed as
follows, or to any other address which either party may designate to the other party by mail:
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if to Monroe County:
Roman Gastesi,Jr., County Administrator
Monroe County Historic Gato Building
1100 Simonton Street
Key West,Florida 33040; and 00
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Planning&Environmental Resources Department
Attn: Senior Director
Subject: City of Marathon Interlocal Agreement
2798 Overseas Highway,Marathon,FL 33050;and
With a copy to:
Monroe County Attorney's Office
Attn: County Attorney
Subject: City of Marathon Interlocal Agreement
P.O.Box 1026
Key West,FL 33040
Mark A. Gould,Jr.,Esq.
Arnall Golden Gregory LLP
171 17t'Street,NW
Suite 2100
Atlanta, GA 30363-1031 E
Attorney for Property Owner
If to the City:
City Manager
9805 Overseas Highway
Marathon,Florida 33050
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George Garrett,Planning Director
9805 Overseas Highway
Marathon,Florida 33050
With a copy to:
David Migut,Esquire
City Attorney
.9805{Overseas-Highway _ ...
Marathon,FL 33050
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Mark A. Gould,Jr.,Esq.
Arnall Golden Gregory LLP
171 17h Street,NW
Suite 2100
Atlanta, GA 30363-1031
Attorney for Property Owner
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Any notice required by this Agreement to be given or made within a specified period of time, or on or before a
date certain, shall be deemed to have been duly given if sent by certified mail, return receipt requested,postage
and fee prepaid;hand delivered,or sent by overnight delivery service.
Section 19. ENTIRE AGREEMENT/MODIFICATION/AMENDMENT: This writing contains the
entire Agreement of the parties and supersedes any prior oral or written representations. No 00
representations were made or relied upon by either party, other than those that are expressly set forthLO
herein. No agent, employee, or other representative of either party is empowered to modify or amend the
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terms of this Agreement, unless executed with the same formality as this document.
Section 20.INCONSISTENCY,PARTIAL INVALIDITY,SEVERABILITY,AND SURVIVAL OF
PROVISIONS: If any condition or provision hereunder, or any portion thereof, is/are held to be invalid
or unenforceable in or by any administrative hearing officer or court of competent jurisdiction, the
invalidity or unenforceability of such condition(s) or provision(s) shall neither limit nor impair the
operation, enforceability, or validity of any other condition or provision hereunder, or remaining portions
thereof. All such other condition(s) or provision(s), or portions thereof, shall continue unimpaired in full
force and effect.
Section 21. CAPTIONS AND PARAGRAPH HEADINGS: Captions and paragraph headings, where
used herein, are inserted for convenience only and are not intended to descriptively limit the scope and/or
intent of the particular paragraph or text to which they refer.
Section 22. AUTHORITY TO ATTEST: Each party to this Interlocal Agreement represents and
warrants to the other that the execution, delivery, and performance of this Agreement has been duly
authorized by all necessary corporate and other organizational action, as required.
Section 23. MISCELLANEOUS: Each party represents and warrants to the other that the execution,
delivery, and performance of this Agreement has been duly authorized by all necessary corporate or other
organizational action, as required.
Section 24.COUNTERPARTS: This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and such counterparts shall constitute one and the same instrument.
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Section 25. OWNER'S RIGHT TO TRANSFER; PERFORMANCE BY RECOGNIZED
MORTGAGEE:
A. Owner's Right to Transfer: Marathon Key Housing Partners, LP or its
successors and assigns in interest or title, as applicable, may:
1. Mortgage its interest in the Property; and
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2. Subject to providing written notice thereof to Monroe County, transfer and/or
convey its interests in the Property or the affordable housing ROGO allocations W
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contemplated herein pursuant to a bona fide foreclosure proceeding or a bona fide deed in O
lieu of foreclosure, to a Mortgagee (as hereinafter defined), or its designee or buyer in a
bona fide foreclosure or of the deed in lieu of foreclosure or from the Mortgagee or its
designee that initially acquired the Property via the bona fide foreclosure or the deed in
lieu of foreclosure provided that such designee or buyer is a Permitted Developer (as
hereinafter defined) and covenants to perform the construction work required to obtain a
Certificate of Occupancy as required herein, and at all times following such transfer, e
comply with the use obligations herein.
E'. Performance by Recognized Mortgagee:
1. If Owner shall fail to complete the construction of the Project (as hereinafter 00
defined) and obtain a Certificate of Occupancy for the affordable housing units related to LO
the affordable housing ROGO allocations on or before the date set forth in this Interlocal
Agreement, as such date may be extended due to Unavoidable Delay (as hereinafter
defined) or otherwise with the reasonable consent of Monroe County (an "Owner U)
Default"), a Recognized Mortgagee (as hereinafter defined) shall have two hundred-
seventy (270) days more than is given to Owner (the "Recognized Mortgagee Cure
Extension Period") to cure, or cause to be cured, such Owner Default. In the event the e
Recognized Mortgagee cannot, through the use of commercially reasonable efforts, cure
such Owner Default within the Recognized Mortgagee Cure Extension Period, the
Recognized Mortgagee may have such longer period of time to complete the cure, subject
to the terms herein, by notifying Monroe County and the City of Marathon in writing
sixty (60) days before the end of the Recognized Mortgagee Cure Extension Period set
forth herein, of its intent to (a) institute a Work Out Plan (hereinafter defined) or
(b) institute a foreclosure proceeding. In the event that the Recognized Mortgagee
notifies Monroe County and the City of Marathon of its intent to institute a Work Out
Plan, by the end of the Recognized Mortgagee Cure Extension Period, the Recognized
Mortgagee shall provide Monroe County and the City of Marathon with a plan for its
review and reasonable approval setting forth how the Recognized Mortgagee proposes to
achieve, or cause the achievement of, completion of construction the Project, including
details of any new or restructured financings, and a revised construction schedule
highlighting the new dates for completion and obtaining a Certificate of Occupancy (the
"Work Out Plan"). Monroe County and the City of Marathon shall have thirty (30) days
from the date of receipt of the Work Out Plan to review and approve the Work Out Plan,
which Work Out Plan shall be approved if the Work Out Plan shows no substantial
deviation from the Project contemplated herein (other than any deviation necessary for
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the correction of any work in place at the time of the Work Out Plan that is required to be
corrected). Once the Work Out Plan is approved by Monroe County and the City of
Marathon, the Recognized Mortgagee shall be granted an additional cure period equal to
the amount of time provided for in the final Work Out Plan, subject to Unavoidable
Delay. The Recognized Mortgagee shall promptly commence, or cause commencement,
of, such remedies and cure, and diligently pursue such remedies and cure to completion.
2. In the event that a Recognized Mortgagee notifies Monroe.County and the City..of
Marathon of its intent to institute a foreclosure proceeding, the Recognized Mortgagee
shall have sixty (60) days from such notice to institute foreclosure proceedings, shall LO
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prosecute the foreclosure proceedings in good faith continuously and with reasonable
diligence and expedition to obtain possession of the Property. Upon obtaining possession
of the Property through a foreclosure, or transfer in lieu of foreclosure, the Recognized
Mortgagee or its designee (the "Subsequent Owner") shall, within one hundred-twenty
(120) days, send to Monroe County and the City of Marathon details of any new or
restructured financings, and a revised construction schedule highlighting the new dates
for completion and obtaining a Certificate of Occupancy (the "Completion Plan").
Monroe County and the City of Marathon shall have thirty (30) days to from the date of
receipt to review and approve the Completion Plan, which Completion Plan shall be
approved if the Completion Plan shows no substantial deviation from the Project
contemplated herein(other than any deviation necessary for the correction of any work in
place at the time of the Completion Plan that is required to be corrected). Once the 00
Completion Plan is approved by Monroe County and the City of Marathon in their LO
reasonable discretion, the Recognized Mortgagee or Subsequent Owner, as may be
applicable, shall be granted an additional cure period equal to the amount of time
provided for in the final Completion Plan, subject to Unavoidable Delay. The
Recognized Mortgagee or Subsequent Owner, as may be applicable, shall promptly
commence or cause commencement of such remedies and cure, and diligently and
continuously pursue such remedies and cure to completion.
C. .Definitions: The following capitalized terms shall have the respective meanings
specified below for purposes hereof:
1. "Institutional Lender" means (a) any bank, savings bank, savings and loan
association, commercial bank or trust company (whether acting individually or in a E
fiduciary capacity) or an entity controlled by, controlling or under common control with
any of the foregoing, (b) an insurance company organized and existing under the laws of
the United States or any state thereof, (c) a real estate investment trust, a trustee or issuer
of collateralized mortgage obligations, a loan conduit or other similar investment entity
which (1) is regularly engaged in the business of providing debt or equity financing and
(2) acts through an institutional trustee, (d) a religious, educational or eleemosynary
institution, a federal, state, or municipal employee's welfare, benefit, pension or
retirement fund, any governmental agency, quasi-governmental entity or government
sponsored entity (e.g., Fannie Mae and/or Freddie Mac), (e) any brokerage or investment
banking organization regularly engaged in the business of providing debt financing, or
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(f) any combination of the foregoing entities. It is acknowledged and agreed that
Citibank, N.A. is an Institutional Lender.
2. "Mortgage' means any mortgage, deed of trust, deed to secure debt, security
agreement, collateral assignment or similar instrument encumbering the Property.
3. "Mortgagee'means the holder of a Mortgage.
4. "Permitted Developer"means an entity that as of the relevant date of inquiry(a) is
controlled by one or more principals who have at least five (5) years of experience in LO
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developing residential buildings of a similar nature and size as the Project, (b) is (or has
an affiliate which is) a developer, construction manager or general contractor(or engages
a construction manager or general contractor) with at least five (5) years of experience in
developing residential buildings of a similar nature and size as the Project, and (c) is a
Permitted Person.
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5. "Permitted Person" means any Person that (a) has not been convicted of a felony
and/or any crime involving moral turpitude in the preceding ten(10) years; (b) has not, at
any time in the three (3) preceding years, owned any property which, while in the
ownership of such Person, was acquired by in rem tax foreclosure, other than a property
that has been released or is in the process of being released to such Person; and (c) is not S
controlled (which in this instance shall mean the power, to direct the management and 00
affairs of such Person's day to day operations, whether through the ability to exercise LO
voting power, by contract or otherwise, including the right to make (or consent to) all
capital and other major decisions to be made by such Person) by a Person described in
subsections (a) or(b) above.
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6. "Person" means an individual, corporation, partnership,joint venture, estate, trust,
unincorporated association, any federal, state, county or municipal government, or any
bureau, department or agency thereof and any fiduciary acting in such capacity on behalf
of any of the foregoing.
7. "Project" means the multifamily residential project and other structures, E
improvements and appurtenances to be constructed on the Property.
8. "Property" means the property described on Exhibit "A" to this Interlocal
Agreement.
9. "Recognized Mortg_ag_e" means a Mortgage (a) that is held by an Institutional
Lender(or a corporation or other entity wholly owned by an Institutional Lender), and (b)
which is recorded in the Official Records of Monroe County.
10. "Recognized Mortgagee" means the holder of a Recognized Mortgage.
11. "Unavoidable Delays)' means actual delays affecting the applicable work to be
performed under this Interlocal Agreement from causes beyond Owner's reasonable
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control, including delays due to acts of God (including earthquakes, floods and
inordinately severe weather conditions of extended duration and impact), industry-wide
strikes or other similar labor stoppages (not including labor actions specific to the Project
or affecting a single group of contractors or suppliers), shortages or inability to obtain
labor, fuel, steam, water, electricity, equipment, supplies, or materials (for which no
substitute is readily available), inability to obtain labor, materials or permits due to
unscheduled extraordinary governmental restrictions, governmental actions or orders of U)
general applicability (not including actions or orders specific to the Project), any order or
judgment that results in an injunction or a restraining order prohibiting or otherwise
delaying the commencement or continuation of construction or other acts, provided such LO
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litigation was not instituted, financed or supported by the applicable party or any of its
affiliates, enemy action or terrorism, civil commotion, fire, or unavoidable casualty; but
in each case, only to the extent the same is not attributable to the acts or omissions of
Owner and for which Owner has given Monroe County notice of such delay event within
sixty(60) days after Owner became, or should have become, aware of same.
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Section 26.EFFECTIVE DATE: This Agreement shall take effect on the date set forth above.
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IN WITNESS WHEREOF,each party has caused this Agreement to be executed by its duly authorized
representative.
ATTEST: KEVIN NL DOK,CLERK BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY,FLORIDA
By:. ....:By...
Clerk
Mayor George Neugent LO
Date:
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
By:
Assistant County Attorney
ATTEST: THE CITY OF MARATHON,FLORIDA
By: By: E
DIANE CLAVER Mayor: <
City Clerk 00
Date: LO
COUINtV ATTORHEY
AS
(City Seal) t ,,
to 0
STEVE-N T. Wl'Wr!NS
APPROVED AS TO FORM AND ASSISTANT G Y11' TTQ1etHEY
LEGALITY FOR THE USE AND Dow
RELIANCE OF THE CITY OF cv
MARATHON,FLORIDA ONLY:
By: E
David Migut.City Attorney
133911242
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EXHIBIT"A"
LEGAL DESCRIPTION
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INTERLOCAL AGREEMENT BETWEEN MONROE
COUNTY AND THE CITY OF MARATHON
TRANSFERRING AFFORDABLE HOUSING
RESIDENTIAL DWELLING UNIT ALLOCATIONS
This Agreement ("Agreement") is made and entered into this �4" day of
u 7,:, 2019 by and between Monroe County, a political subdivision of the State of Florida, 0
whose address is 1100 Simonton Street, Key West, Florida 33040 ("County"), and the City of Marathon, LO
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a municipal corporation of the State of Florida, whose address is 9805 Overseas Highway, Marathon,
Florida 33050 (the "City").
WITNESSETH:
WHEREAS, Monroe County and the City of Marathon recognize the value of regional _
partnerships in smart growth; and
WHEREAS, Policy 101.2.15 of the Year 2010 Monroe County Comprehensive Plan allows Rate
of Growth Ordinance building permit allocations (hereinafter"affordable housing ROGO allocations" or
"affordable ROGOs") for affordable housing projects to be pooled and transferred between local
government jurisdictions within the Florida Keys Area of Critical Concern, if accomplished through an
interlocal agreement between the sending and receiving local governments; and
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WHEREAS, Chapter Five (5) of the City Comprehensive Plan identifies goals, objectives and
policies to provide for development pursuant to intergovernmental coordination and interlocal
agreements; and 0
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WHEREAS, Monroe County and the City of Marathon have previously entered into Interlocal
Agreements to transfer affordable ROGOs; and
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WHEREAS, Monroe County and the City of Marathon recognize the potential economic value
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of such transferable affordable ROGO allocations; and
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WHEREAS, this Agreement is entered into pursuant to Florida Statutes, Section 163.01, et seq., 0
Florida Interlocal Cooperation Act of 1969,which states:
"It is the purpose of this section to permit local governmental units to make the most
efficient use of their powers by enabling them to cooperate with other localities on a
basis of mutual advantage and thereby to provide services and facilities in a manner and
pursuant to forms of governmental organization that will accord best with geographic,
economic, population, and other factors influencing the needs and development of local
communities"; and
WHEREAS, the comprehensive plans of Monroe County and the City of Marathon expressly
identify interlocal agreements as a means of resolving issues mutually affecting their respective
jurisdictions; and
WHEREAS, Hi 0 e �mw,ti�.p��u��u.����l����.�m� Ili�,����q !� toeft:, �4 7GMarathon Key HousingPartners- LP_
pursuant to City Resolution r'0�4: r'r". has an approved Conditional Use Permit for a project that
includes fifty-five (55) affordable housing wJ�o k 1: wFek 1:�.k:Ri�14uHt ni pertaining to the following site:
See Attachment"A"
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WHEREAS, the parties have determined that this Agreement is in the best interests of the public
and the public health, safety, and welfare.
NOW, THEREFORE,the parties hereto agree as follows:
Section 1. TRANSFER: The parties agree to permit the transfer of 55- affordable housing ROGO 0
allocations, comprised of fifty-two (52) low-income category and three (3) very-low income category
affordable housing ROGO allocations, from Monroe County to the City of Marathon for allocation,
pursuant to this Agreement, and subject to the conditions contained herein, including but not limited to: LO
arathon Key ]Zaeaz747CHousing Partners_ LP or its assignee and successors-in-interest, acting on its
Conditional Use Permit approval from the City of Marathon; and
arathon Key )vaeaz ousin Partners_ LP or its assignee and successors-in-interest, constructing
and obtaining a Certificate of Occupancy for all of the affordable housing units, situated upon the subject
property described herein, related to the transferred affordable housing ROGO allocations subject of this
Interlocal Agreement, prior to December 31, 20&P2021 subject to extension for force majeure as
approved by Monroe Count; and
The recording of a 99-year Affordable Housing Deed Restriction on all of the affordable housing units
contemplated herein, in accordance with this Agreement, and in accordance with the applicable .�
requirements of the Code of Ordinances, City of Marathon, Florida and similar requirements of the 00
Florida Building Code (FBC). `O
Section 2. ASSIGNMENT: Monroe County has assigned its rights to the affordable housing ROGO
allocation contemplated herein to the City, and the fifty-five (55) affordable housing ROGO allocations A
a�
are to be issued by the City in consideration of the Conditional Use Approval pursuant to City Resolution 91
9
issued and assigned to property owned by Key Vaca, LLC and/or Marathon Kev E
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Dosing Partners, L as its assignee Legal Description attached as Exhibit"A"). In the event the subject �3
project or, as applicable, Marathon Key )v ea,, .N..,.�..,� Housing Partners_ LP or, as applicable, its assign(s)
and successor(s) in interest or title, fail to complete the construction as evidenced by issuance of a �
Certificate of Occupancy for all fifty-five (55) units by the City of Marathon, any units which have not c
received a Certificate of Occupancy shall result in those allocations reverting to Monroe County and to r_
their former status under the Agreement (sublect_ however_ to Section 25 below); no amendment to this
Agreement is necessary or required to trigger this automatic reverter clause.
Section 3. TERM: Subject to and upon the terms and conditions set forth herein, this Interlocal
Agreement shall continue in force until one of the following occur:
The project does not complete construction and does not obtain Certificates of Occupancy for all
fifty-five (55) affordable housing units contemplated herein by December 31, 20 11...P..2021 tsubiec
extension for force majeure as aDDroved by Monroe Count All affordable housing units for which
�.u�::�..:&����'i12021 shall remain subject to this
Certificates of Occupancy are issued prior to December 31 . . �
Interlocal Agreement irrespective of whether all 55 affordable housing units contemplated herein receive
Certificates of Occupancy.
Section 4. NOTIFICATION: The City of Marathon shall immediately notify Monroe County of any
assignment(s) and successor(s) in interest or title to M arathon Key )v�� a � �:; ousin� artners_ L for
the duration of Marathon Key )vaeaz....17II ,GIIousing Partners_ LPIs interest(s) in the affordable housing
ROGO allocation contemplated herein, and shall immediately notify Monroe County of any
assignment(s) and successor(s) in interest or title to the affordable housing ROGO allocations
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1.4.b
contemplated herein above at least thirty (30) business days prior to the date of such transfer or
succession by certified U.S. Postal Service Certified mail to the Monroe County Planning &
Environmental Resources Senior Director. The City of Marathon shall further provide prompt written
notice to Monroe County of the extension, termination, or expiration of the aforesaid Conditional Use
Permit for project contemplated herein. The City of Marathon shall further provide prompt written notice
to Monroe County of the issuance of Certificates of Occupancy for the subject affordable housing units 0
within thirty(30)business days after issuance of said Certificates.
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All such notices under this Section ("Section 4.") shall be sent to the following addresses: LO
Monroe County County Administrator >
1100 Simonton Street, Key West, FL 33040; and
Monroe County Planning &Environmental Resources Department
Attn: Senior Director
Subject: City of Marathon Interlocal Agreement
2798 Overseas Highway, Marathon, FL 33050; and
With a copy to:
Monroe County Attorney's Office <
Attn: County Attorney 00
Subject: City of Marathon Interlocal Agreement LO
P.O. Box 1026
Key West,FL :7'4)4)33041
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Failure of the City of Marathon or MaraLhQn Key V fteft, 1�4 7CHausin� Partners, L or their assign(s) or CL
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successor(s) in interest or title, to perform any act required by this Interlocal Agreement shall neither E
impair nor limit the validity of this Agreement or limit its enforceability in any way. t 3
Section 5. CONSTRUCTION AND INTERPRETATION: The construction and interpretation of this
Interlocal Agreement and Monroe County Code(s)provisions in arising from,related to, or in connection c
with this Agreement, shall be deferred in favor of Monroe County and such construction and
interpretation shall be entitled to great weight on trial and on appeal.
Section 6. NO WAIVER: Monroe County shall not be deemed to have waived any rights under this
Interlocal Agreement unless such waiver has been expressly and specifically provided.
Section 7. LIMITATION OF LIABILITY: In the event of any litigation related to, arising from, or in
connection with this Interlocal Agreement, the parties hereto and Marathon Key !�L fte z IIn:: Housing r_
Partners_ LP and its assignees and successors-in-interest, hereby agree to expressly waive their right to a E
jury trial.
Section 8. DUTY TO COOPERATE When required to under this Interlocal Agreement, the City of
suMarathon Marathon Key vtmll ,II , ousin artners L and its assignees and
successors-in-interest, shall to ensure the l
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plementation of the government purpose furthered by this
Agreement, cooperate with Monroe County's reasonable requests, regarding the conditions and
provisions contained herein.
Section 9. GOVERNING LAWS/VENUE: This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida and the United States. Exclusive venue for any dispute
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1.4.b
arising under this Agreement shall be in the Sixteenth Judicial Circuit in and for Monroe County, Florida.
In the event of any litigation,the prevailing party is entitled to a reasonable attorney's fee and costs. This
Agreement is not subject to arbitration.
Section 10. NONDISCRIMINATION: The parties agree that there will be no discrimination against
any person, and it is expressly understood that upon a determination by a court of competent jurisdiction 0
that discrimination has occurred, this Agreement automatically terminates without any further action on
the part of any parry, effective the date of the court order. The parties agree to comply with all Federal
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and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include LO
but are not limited to (1) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits
discrimination on the basis of race, color, or national origin; (2) Section 504 of the Rehabilitation Act of >
1973, as amended 3) U.S.C. s. 1975, as amended (42 U.S.C. ss. 6101.6107)), which prohibits
discrimination on the basis of age; (4) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255),
as amended, relating to nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol
Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health Service
0
Act of 1912., ss. 523 and 527 (42 U.S.C. ss. 290 dd-3 and 290 ee(03), as amended, relating to
confidentiality of alcohol and drug abuse patient records; (7) The Americans With Disabilities Act of E
1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on
the basis of disability; (8) The Civil Rights Act of 1992 (Chapter 760, Florida Statutes, and Section �E
509.021, Florida Statutes), as may be amended from time to time, relating to non-discrimination; and (9) <
any other nondiscrimination provisions in any federal or state statutes or local ordinances which may �
apply to the parties to, or the subject matter of,this Agreement. LO
Section 11. CODE OF ETHICS: The parties agree that their officers and employees recognize and will be
required to comply with the standards of conduct relating to public officers and employees as delineated in
Section 112.313, Florida Statutes regarding, but not limited to, solicitation or acceptance of gifts; doing 00.
business with one's agency;unauthorized compensation;misuse of public position; conflicting employment or
contractual relationship;and disclosure or use of certain information.
Section 12. NO SOLICITATION/PAYMENT: The parties warrant that, in respect to itself, it has neither
employed nor retained any company or person, other than a bona fide employee working solely for it, to
solicit or secure this Agreement and that it has not been paid or agreed to pay any person, company,
corporation, individuals, or firm, other than a bona fide employee working solely for it, any fee,
commission percentage, gift, or other consideration contingent upon or resulting from the award or making
of this Agreement. For the breach of violation of this provision, each party agrees that the other party shall
have the right to terminate this Agreement without liability and, at its discretion, to offset from monies `14
owed,or otherwise recover the full amount of such fee,commission,percentage,gift,or consideration. 0
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Section 13. SUBORDINATION: This Agreement is subordinate to the laws and regulations of the
United States and the State of Florida, whether in effect on commencement of this Interlocal Agreement
or adopted after that date.
Section 14. INCONSISTENCY: If any item, condition, or obligation of this Agreement is in conflict
with other items of this Agreement, the inconsistencies shall be construed so as to give meaning to those
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terms which limited the County's responsibility or liability.
Section 15. PUBLIC ACCESS TO RECORDS: The parties shall allow and permit members of the
public reasonable access to, and inspection of, all documents, papers, letters or other materials subject to
the provisions of Chapter 119, Florida Statutes, and made or received by the parties in conjunction with
this Agreement.
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Section 16. NON-RELIANCE BY THIRD-PARTIES: Other than as stated herein, no person or entity
shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce
any third-parry claim or entitlement to or benefit of any service or program contemplated hereunder, and
the parties agree that neither the County nor the City, or any agent, officer, or employee of each shall
have the authority to inform, counsel, or otherwise indicate that any particular individual or group of
individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, 0
inferior to, or superior to the community in general or for the purposes contemplated in this Agreement.
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Section 17. NO PERSONAL LIABILITY: No covenant or agreement contained herein shall be deemed LO
to be a covenant or agreement of any member, officer, agent or employee of a party in his or her
individual capacity, and no member, officer, agent or employee of a party shall be liable personally on >
this Agreement or be subject to any personal liability or accountability by reason of the execution of this
Agreement.
Section 18. NOTICES: In addition to those communications and notice requirements set forth in Section
4. of this Agreement, all notices and other communications hereunder must he in writing and addressed
0
as follows, or to any other address which either party may designate to the other parry by mail:
if to Monroe County:
Roman Gastesi, Jr., County Administrator <
Monroe County Historic Gato Building 00
1100 Simonton Street `O
Key West, Florida 33040; and
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Planning &Environmental Resources Department
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Attn: Senior Director CL
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Subject: City of Marathon Interlocal Agreement
2798 Overseas Highway, Marathon, FL 33050; and U
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With a copy to:
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Monroe County Attorney's Office
Attn: County Attorney
Subject: City of Marathon Interlocal Agreement
P.O. Box 1026
Key West, FL 33040
Mark A. Gould- Jr.- Est
Arnall Golden Gregon7 LL
171 17ti�Street_ W
Suite 2100
Atlanta GA 30363-1031
A torney fol�ro�y Owner
If to the City:
City Manager <
9805 Overseas Highway
Marathon, Florida 33050
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1.4.b
George Garrett, Planning Director
9805 Overseas Highway
Marathon, Florida 33050
With a copy to:
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David Migut, Esquire
City Attorney
9805 Overseas Highway LO
Marathon, FL 33050
Mark A. Gould- Jr.- Eso.
Amall Golden GreLyoni LL
171 17th Street_1a�W
Suite 2100
Atlanta GA 30363-1031
Attorney fol�ro�y Owner
Any notice required by this Agreement to be given or made within a specified period of time, or on or before a
date certain,shall be deemed to have been duly given if sent by certified mail,return receipt requested,postage and
fee prepaid;hand delivered,or sent by overnight delivery service.
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Section .1.5:49 ENTIRE AGREEMENT/MODIFICATION/AMENDMENT: This writing contains `O
the entire Agreement of the parties and supersedes any prior oral or written representations. No
representations were made or relied upon by either party, other than those that are expressly set forth
herein. No agent, employee, or other representative of either party is empowered to modify or amend the
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terms of this Agreement,unless executed with the same formality as this document.
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Section 16 lFi�l:,iii)uiisisl.4`:'�:.uiie:!h ...Viii°liid IFv�,iii lid ity.. S ive.�iriiibiiliity3 iviiid Siirvi:iviflll ..of l"uro!�,iisio)FIS2 t3
INCONSISTENCE', PARTIAL INVALIDITY, SEVERABILITY. AND SURVIVAL OF �
PROVISIONS: if any condition or provision hereunder, or any portion thereof, is/are held to be invalid
or unenforceable in or by any administrative hearing officer or court of competent jurisdiction, the
invalidity or unenforceability of such condition(s) or provision(s) shall neither limit nor impair the
operation, enforceability, or validity of any other condition or provision hereunder, or remaining portions
thereof All such other condition(s) or provision(s), or portions thereof, shall continue unimpaired in full
force and effect.
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Section 17.7 Ciiiptiiiii)uiis iviid III"��rw�iu���°��Ill�lr III leiickiiigs2L CAPTIONS AND PARAGRAPHA N 'S:
Captions and paragraph headings, where used herein, are inserted for convenience only and are not �E
intended to descriptively limit the scope and/or intent of the particular paragraph or text to which they
refer. E
Section 1�8 mithiiiwiity.... to tl*422, AUTHORITY TO ATTEST: Each party to this Interlocal
Agreement represents and warrants to the other that the execution, delivery, and performance of this
Agreement has been duly authorized by all necessary corporate and other organizational action, as
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required.
Section „1.9723. MISCELLANEOUS: Each party represents and warrants to the other that the execution,
delivery, and performance of this Agreement has been duly authorized by all necessary corporate or other
organizational action, as required.
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Section ,20.2 COUNTERPARTS: This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and such counterparts shall constitute one and the same instrument.
Section w�,:l.. 1 f �� 4 ih � w��� wr���e�e�>>�eF�� ���y4� ��4 �d���e�.t �l.
OWNER'S RIGHT TO TRANSFER; PERFORMANCE BY RECOGNIZED MORTGAGEE:
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A. Owner's Right to Transfer: Marathon Ivey HousingPartners- LP or its
successors and assigns in interest or title as aP lic�able- may: W
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1_ Mortgage its interest in the PrODerty, and
2_ Sub`ec� t to Drovidinu written notice thereof to Monroe County transfer and/or
convey its interests in the Prosy or the affordable housing ROGO allocations
contemplated herein pursuant to a bona fide foreclosure proceeding or a bona fide deed in
lieu of foreclosure to a Mortgagee (as hereinafter defined)_ or its designee or buyer in a
bona fide foreclosure or of the deed in lieu of foreclosure or from the Mortgagee or its
designee that initially acquired the Prol2eM via the bona fide foreclosure or the deed in
lieu of foreclosure provided that such designee or buyer is a Permitted Develo ear (as
hereinafter defined) and covenants to perform the construction work reauired to obtain-a- E
Certificate of OCCUDancy as required herein and at all times following such transfer-
comDly with the use obligations herein. LO
B. Performance bv Recognized Mortgagee:
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1 If Owner shall fail to complete the construction of the ro`e� ct (as hereinafter 0
defined) and obtain a Certificate of Occupy for the affordable housing units related to 0
the affordable housing ROGO allocations on or before the date set forth in this Interlocal U
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Agreement- as such date may be extended due to Unavoidable Delay (as hereinafter S
defined) or otherwise with the reasonable consent of Monroe Countv (an "Owner
Default"), a Recognized Mortgagee as hereinafter defined) shall have two
h ndred-seventy 270) da s more than is iven to Owner the "Recognized Mort a ee
Cure Extension Period") to cure_ or cause to be cured- such Owner Default, In the event
the Recognized Mortgagee cannot- through the use of commercially reasonable efforts
cure such Owner Default within the Recognized Mortgagee Cure ExtensionPeriod- the
Recognized Mortgagee may have such longer period of time to complete the cure, subject
to the terms herein- by notifying Monroe County and the City of Marathon in writing_ E
sixty (60) days before the end of the Recognized Mortgagee Cure Extension Period set
forth herein of its intent to _) institute a Work Out Plan hereinafter defined) or ) E
institute a foreclosure Droceedinu. In the event that the Recognized Mortgagee notifies
Monroe Countv and the City of Marathon of its intent to institute a Work Out Plan- by the
end of the Recognized Mortgagee Cure ExtensionPeriod- the Recognized Mortgagee �
shall Drovide Monroe County and the City of Marathon with a plan for its review and
r asonable aDDroval setting forth how the Recognized Mortgagee DrODOses to achieve or
cause the achievement of completion of construction thePro ject- including details of any
new or restructured financings- and a revised construction schedule highlighting the new
dates for completion and obtaining a Certificate of Occupancy (the "Work Out Plan").
Monroe Countv and the City of Marathon shall have thirty (30) days from the date of
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receipt of the Work Out Plan to review and aDDrove the Work Out Plan- which Work Out
Plan shall be aDDroved if the Work Out Plan shows no substantial deviation from the
Project contemplated herein (other than any deviation necessary for the correction of my=
work in Qlace at the time of the Work Out Plan that is required to be corrected). Once the
Work Out Plan is aDDroved by Monroe County and the City of Marathon- the Recognized U)
Mortuauee shall be granted an additional cure period equal to the amount of time 0
Drovided for in the final Work Out Plan- subject to Unavoidable Delay, The Recogn 0ized W
Mortgagee shall DrOMDtly commence- or cause commencement, of, such remedies and LO
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cure- and diliuentIV Dursue such remedies and cure to COMDletion,
I In the event that a Recognized Mortgagee notifies Monroe County and the City of
Marathon of its intent to institute a foreclosure Droceeding, the Recognized Mortgagee
shall have sixty (60) days from such notice to institute foreclosure j2roceedinus- shall
Drosecute the foreclosure Droceedings in good fa
ith continuously and with reasonable- 0
diligence and expedition to obtain possession of the Property. UDon obtaining possession
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of the Property through a foreclosure- or transfer in lieu of foreclosure- the Recognized 0
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Mortgagee or its designee the "Subsequent Owner") shall- within one hundred-twenty
(120) days- send to Monroe County and the City of Marathon details of any new orE
restructured financings- and a revised construction schedule highlighting the new dates- <
for completion and obtaining a Certificate Of OCCUDancy (the "COMDletion Plan") 00
Monroe County and the City of Marathon shall have thirty (30) days to from thedate of LO.
receipt to review and aDDrove the Completion Plan- which COMDletion Plan shall be
aDDroved if the COMDletion Plan shows no substantial deviation from the Project 0
contemplated herein (other than any deviation necessary for the correction of any work in
Qlace at the time of the COMDletion Plan that is required to be corrected). Once the
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Completion Plan is aDDroyed by Monroe County and the City of Marathon in their0
reasonable discretion- the Recognized Mortgagee or Subseauent Owner- as may be
aDDficable- shall be granted an additional cure peri d equal to the amount of time
Drovided for in the final COMDletion Plan, subject to Unavoidable Delay, The 0
Recognized Mortgagee or Subsequent Owner- as may be aDDlicable- shall DrOMDtIV
0
commence or cause commencement of such remedies and cure- and diligently and
continuously Dursue such remedies and cure to completion,
C, Definitions: The following caDitalized terms shall have the reSDective meanings
specified below for Durposes hereof,
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L "Institutional Lender" means (a) any bank- savings bank- savings and loan
association, commercial bank or trust cQml any (whether acting individually or in a E
- -
fiduciary caDacity) or an entity controlled by, controlling or under common control with
any of the foregoing- (b) an insurance QOMDanv organized and existing under the laws of
"h United Stales or any= state thereof (c) areal estate investment ILUL a trustee or issuer. E
of collateralized mortgage obligations- a loan conduit or other similar investment entity
which (1) is regularly engaged in the business Of Droviding debt or equity financing and
(2) acts through an institutional trustee- (d) a reliuious- educational or eleemosvnary
institution a federal_ state_ oLjmunicipal eMpayee's welfare- benefit, pension or
retirement fund- anv governmental auencv- ouasi-governmental entity or government
13391724v�2
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sponsorel-entity (e.g.- Fannie Mae and/or Freddie Mae)- (e) any brokerage or investment
banking organization reaularlv engaged in the business of proyiding debt financing- or (f)
any combination of the foregoing entities. It is aclmowledged and agreed that Citibank-
N.A. is an Institutional L2n&r.
"Mort 0
gage" means any mortgage, deed of trust, deed to secure debt, security CD
agreement- collateral assignment or similar instrument encumbering the PrODertv. 0
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3 "Mortgagee" means the holder of a Mortgage.
4- "Permitted Deyeloper" means an entity that as of the relevant date of inquiry (a) is
controlled by one or als who have at least s of experienceLln
more DrinCiD five (5) vear
develODinu residential buildings of a similar nature and size as the Project- (b) is (or has
an affiliate which is) a develoDer- construction manager or general contractor or engages 0
a construction manager or general contractor) with at least five (5) years of experience in
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developing residential buildings of a similar nature and size as the Project- and (c) is a 0
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Permitted Person 'a C
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5 "Permitted Person" means anv Person that (a) has not been convicted of a felony <
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and/or any crime involving moral turpitude in the precedinu ten (10) vears- (b) has not- at C14
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any time in the three (3) ),receding years- owned and DrODedy which- while in the
ownershir) of such Persona was acquired by in rem tax foreclosure- r than a DrODerty C
that has been released or is in the Drocess of being released to such Persom and (c) is not 0
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controlled (which in this instance shall mean the Dower- to direct the management and
affairs of such Person's day to day ODerations- whether thr ability to exercise
ouuh the abi E
voting Dower- by contract or otherwise, including the right to mare (or consent to) all 0
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caDital and other major decisions to be made by such Person) by a Person described in C 0
subsections (a) or(b) above,
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6 "Person" means an individual- corDoration- DartnershiD-joint venture- estate- trust C
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unincorporated association,- anv federal,- state, county or muniCiDal governments or any
bureau- department or agency thereof and any fiduciary acting in such caDacity on behalf
of any of the fore
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7- "Proiect" means the multifamily residential Droject and other structures,_ 0
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in"Mrovements and appurtenances to be constructed on the roeP 'aDrty. C
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8, "Propertv" means the DrODerty described on Exhibit "A" to this Inteim-cal
Agreement.
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2 "Recounized Mortgage" means a Mortgage (a) that is held by an Institutional 0
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Lender (or a corporation or other entity wholly owned by an Institutional Lender)- and (b)
which is recorded in the Official Records of Monroe County,
10, "Recounized Mortgagee" means the holder of a Recognized Mortuaue.
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11, "Unavoidable Delav(s)" means actual delays affecting the aDDlicable work Ao-12-e-
Derformed under this Interlocal Aureement from causes bevond Owner's reasonable
control- including delays due to acts of God (including earthquakes- floods and
inordinately severe weather conditions of extended duration and iMDact)- industrv-wide
strikes or other similar labor StODDages (not including labor actions specific to the Project 7
ffi or actin u a sin Ala of contractors or sub tiers). shortaues or inability to obtain
labor- fuel. steam- water- electricity- eqUiDment- sub limes- or material for which no 0
substitute is readily available) inability to obtain
==materials or permits due to LO- LO
unscheduled extraordinary uovernmental restrictions- uovernmental actions or orders of,
ueneral aDDlicabilitv (noLincluding actions or orders SDecific to the Protect)- anv order or
iudument that results in an injunction or a restraininu order Drohibitinu or otherwise
davinu the commencement or continuation of construction or other acts- Drovided such
litivation was not instituted- financed or SUDDorted by the aDDlicable Dartv or anv of its
affiliates- enemy action or terrorism- civil commotion- fire- or unavoidable casualty- but 0
in each case- only to the extent the same is not attributable to the acts or omissions ofC
Owner and for which Owner has given Monroe County notice of such delay event within 0
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sixty (60) days after Owner became- or should have become- aware of same- 'a
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized
representative.
ATTEST: KEVIN MADOK, CLERK BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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By: By:
Clerk >
Mayor George Neugent 0
Date: _
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APPROVED AS TO FORM AND LEGAL SUFFICIENCY
By:
Assistant County Attorney
ATTEST: THE CITY OF MARATHON, FLORIDA 00
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By: By:
DIANE CLAVER Mayor:
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City Clerk
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Date:
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(City Seal) c
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APPROVED AS TO FORM AND
LEGALITY FOR THE USE AND
RELIANCE OF THE CITY OF
MARATHON,FLORIDA ONLY:
By:
David Migut. City Attorney
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EXHIBIT"A"
LEGAL DESCRIPTION
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Document comparison by Workshare 9.5 on Thursday, April 18, 2019 2.04.49
PM
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Document 1 ID interwovenSite://AGGDMS/AGG/13391724/1
Description 13391724v1<AGG> - Interlocal Agreement (Marathon
Key) LO
Document 2 ID C.\NRPortbl\AGG\DEARINDC\13391724_2.docx
Description C:\NRPortbl\AGG\DEARINDC\13391724 2.docx
Rendering set IStandard
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Sponsored by: Lindsey
7
CITY OF MARATHON, FLORIDA
RESOLUTION 2019-54
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A RESOLUTION OF THE CITY OF MARATHON, FLORIDA,
APPROVING THE SECOND AMENDMENT TO THE INTERLOCAL >
AGREEMENT (ILA) BETWEEN THE CITY OF MARATHON AND
MONROE COUNTY TRANSFERRING AFFORDABLE HOUSING
RESIDENTIAL DWELLING UNIT ALLOCATIONS FOR AN APPROVED
PROJECT IN THE CURRENT OWNERSHIP OF MARATHON KEY
HOUSING PARTNERS LP; SAID ILA ORIGINALLY APPROVED
PURSUANT TO CITY RESOLUTION 2016-113 AND SUBSEQUENTLY
AMENDED PURSUANT TO RESOLUTION 2019-27; THE SUBJECT
AMENDMENT WILL UPDATE CURRENT OWNERSHIP IN THE E
PROJECT AND ADD A SECTION TITLED, "OWNER'S RIGHT TO
TRANSFER; PERFORMANCE BY RECOGNIZED MORTGAGEE;" SAID
PROJECT TO BE LOCATED BETWEEN 4700 AND 4800 OVERSEAS
HIGHWAY, MARATHON, FLORIDA ON PROPERTIES INCLUDING
REAL ESTATE NUMBERS 00327110-000000, 00327120-000000, 00327130-
000000, AND 00327140-000000. NEAREST MILE MARKER 50;
RESCINDING RESOLUTION 2017-107; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on December 13, 2016 the City of Marathon granted a Conditional Use Permit E
to Keys Affordable Development III LLC (Original Applicant)pursuant to Resolution 2016-122 to
construct fifty-five(55)multifamily affordable housing units; and
WHEREAS,in 2017 the Conditional Use Permit noted in Resolution 2016-122 was assigned U)
to Key Vaca LLC the title owner of the property and remains in full force and effect; and
0
WHEREAS, on December 13, 2016 the City adopted Resolution 2016-113 approving an
Interlocal Agreement between the City of Marathon and Monroe County for the transfer of fifty-five
(55) affordable housing units which ran in favor of Keys Affordable Development III LLC; and
WHEREAS, on July 11, 2017 the City of Marathon adopted Resolution 2017-54 which
rescinded Resolution 2016-113 for the purposes, in part, of assigning the project to Key Vaca LLC;
and c
0
WHEREAS, on July 11, 2017 the City of Marathon adopted Resolution 2017-55 which
approved an Interlocal Agreement (ILA) between the City of Marathon and Monroe County
transferring Fifty-five (55) affordable housing residential dwelling units to the City to be utilized in
the project approved through Resolution 2016-122 as assigned to Key Vaca LLC; and
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WHEREAS,the subj ect prof ect sought and has ultimately received tax credit funding through
the Florida Housing Finance Corporation; and
WHEREAS, the projects known as Key Vaca LLC and Crystal Cove Market Site LLC
(originally HTG Crystal Cove)have submitted building plans jointly to complete a combined project; W
and LO
WHEREAS; Marathon Key Housing Partners, LP (the"Applicant") has acquired or shall >
acquire the subject property and the allocable development rights previously owned by Original
Applicant and the Applicant has proposed to develop fifty-five(55)affordable apartments on sites
previously developed with four duplexes totaling eight units; and
0
WHEREAS, the building plans should be approved within the next several weeks
(approximately May 30, 2019); and E
WHEREAS, a request to extend the ILA was made through City Resolution 2019-27 and E
subsequently approved by Monroe County; and
WHEREAS,this Resolution seeks a Second Amendment to the ILA in order to recognize a
change in project ownership and to add a section titled,"Owner's Right To Transfer;Performance By
Recognized Mortgagee,"
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF MARATHON, FLORIDA, THAT:
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Section 1. The above recitals are true and correct and incorporated herein. r_
Section 2. The City requests that the ILA approved pursuant to Resolution 2017-55 and
extended pursuant to Resolution 2019-27, be amended to reflect a change in project ownership and
to add a section titled "Owner's Right To Transfer; Performance By Recognized Mortgagee" and U)
provides the attached Amendment document for proposed execution (EXHIBIT A). 0
Section 3. Effective Date. This Resolution shall become effective immediately upon its
adoption.
PASSED AND APPROVED by the City Council of the City of Marathon, Florida, this
28 ' day of May, 2019.
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THE CITY OF MARATHON, FLORIDA
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John Bartus, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
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ATTEST:
Diane Clavier, City Clerk
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(City Seal)
APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE
CITY OF MARATHON, FLORIDA ONLY:
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David Migut, City Attorney
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EXHIBIT A
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