07/17/2019 Agreement a�s caugr�
Kevin Madok, CPA
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* Clerk of the Circuit Court& Comptroller—Monroe County, Florida
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DATE: July 25, 2019
TO: Cheryl Cioffari, Acting Senior Director
Planning&Environmental Resources
ATTN: Juanita Jones
Housing Recovery Administrator
FROM: Pamela Hancock, D.lar
SUBJECT: July 17th BOCC Meeting
Attached is an electronic copies of the following items for your handling:
D4 Ground Lease between the Monroe County BOCC and the Monroe County
Housing Authority for development of 25 affordable housing units at sites currently owned or
under contract for purchase, including Howard's Haven Trailer Park at 31535 Avenue C, Big
Pine Key; Conch Key Trailer Park at 31 S. Conch Avenue and 2 N. Conch Avenue, Conch Key;
and a Key Largo site on Atlantic Boulevard, required under the terms of the competitive Request
for Application issued by the Florida Housing Finance Corporation (FHFC) for land acquisition
and new construction of affordable workforce rental housing utilizing Community Development
Block Grant-Disaster Recovery funding and approval for County Administrator or his designee
to finalize wording of lease to meet FHFC Request for Applications (RFA) requirements because
of RFA response deadline and the expected issuance date of the final RFA.
Should you have any questions, please feel free to contact me at(305) 292-3550.
Cc: Land Authority w/certified copy
County Attorney
Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 33070
305-294-4641 305-289-6027 305-852-7145 305-852-7145
•
LEASE
BETWEEN
THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA
"LESSOR"
AND
THE MONROE COUNTY HOUSING AUTHORITY
•
"LESSEE" •
FOR PROPERTY LOCATED ON BIG PINE KEY, CONCH KEY,
AND KEY LARGO,MONROE COUNTY, FLORIDA
DATED. July 17 ., 2019
Doc#2250343 Bk#3001 Pg#2030
Recorded 12'31/2019 11:44 AM Page 1 of 49
Filed and Recorded in Official Records of
MONROE COUNTY KEVLN MADOK,CPA
•
•
•
Page i Of 49
Table of Contents
Article .Title _. Page No.
I Definitions 4
II Demised Premises 7
III Term 7
IV Rent 8
V Non-Subordination 9
VI Payment of Taxes and Utilities 9
VII Mechanics' Liens 11
VIII Governing Law, Cumulative Remedies 13
IX Indemnification of Lessor 13
X Insurance 14
XI Insurance Premiums 18
XII Assignment/Transfer 19
XIII Condemnation 20
XIV Construction 21
XV Mortgage Financing 24
XVI Default 27
XVII Repair Obligations 29
XVIII Additional Covenants of Lessee/Lessor 30
XIX Representations,Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use 32
XX Miscellaneous 32
Page 2 of 49
OCCUPANCY AGREEMENT AND.GROUND LEASE
THIS Agreement and Lease made and entered into on this day of ,
2019 by and between the BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA (referred to as the "Lessor" or "Owner", or "County" or
"Monroe County"), a political subdivision of the State of Florida organized and existing
under the laws of the State of Florida, and THE MONROE COUNTY HOUSING
AUTHORITY (referred to as the "Lessee" or "Initial Lessee", or "Contractor" or
"Occupant"),a public body,corporate and politic, created and organized pursuant to and
in accordance with the provisions of Housing Authorities Law,codified pursuant to Chapter
421, Florida Statutes.
RECITALS
WHEREAS, Lessor is the owner in fee simple of that certain property located at
what is now known as 31 S. Conch Avenue, Conch Key (bearing Property Identification
Number 00385780-000400) and located on Atlantic Boulevard, Key Largo (bearing
Property Identification Number 00453440-001100), and is the owner of an option to hold
land in fee simple located at what is now known as 31535 Avenue C, Big Pine Key(bearing
Property Identification Number 0030267o-000000 and 00302680-000000),and located at
2 N. Conch Avenue, Conch Key (bearing Property Identification Number 00385780-
000000),Monroe County,Florida,said four properties(hereinafter cumulatively referred to
as the"Property")being more particularly legally described as per the attached incorporated
Exhibit "A."; and
WHEREAS, Lessee desires to develop the Property for rental use of 25 affordable
workforce housing units pursuant to the FHFC RFA 2019-101 CDBG-DR in Monroe County
for qualified tenant occupants; and
WHEREAS, Lessee desires to use the Property for rental use of 25 future housing
units for qualified tenant occupants as workforce housing (as defined in the above-
referenced FHFC RFA 2019-101); and
WHEREAS, in order to preserve the affordability of the dwelling unit(s) to be
developed, used, and occupied on the Property, Lessor desires to lease the Property to
Lessee for ninety-nine(99)years,subject to the FHFC CDBG-DR program Restrictions as
set forth and further defined herein; and
WHEREAS,the Lessor and Lessee agree that the Lessee shall develop the Property
in accordance with all requirements of the Community Development Block Grant-Disaster
Recovery("CDBG- DR") Program; and
WHEREAS, Lessor and Lessee desire and hereby enter into this 99-year lease to
ensure and preserve affordability in perpetuity of the Property and all dwelling units
thereon; and
WHEREAS,Lessor and Lessee mutually agree to the Property Management process
Page 3 of 49
and guidelines as set forth more fully below and attached incorporated Exhibit"B."to the
extent allowed by the Florida Department of Economic Opportunity and Florida Housing
Finance Corporation;
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein,the receipt and sufficiency of which are hereby acknowledged,the parties
agree as follows:
The foregoing recitals are true and correct and are hereby incorporated as if fully
stated herein, and all exhibits attached hereto are true and correct, have been agreed to
by Lessor and Lessee, and are hereby incorporated as if fully stated herein.
ARTICLE I
Definitions
"FHFC"shall mean the "Florida Housing Finance Corporation."
"CDBG-DR" shall mean the Florida Department of Economic Opportunity's
"Community Development Block Grant-Disaster Recovery" initiative/program.
"Workforce Housing Restriction" shall mean a dwelling unit whose monthly rent
meets the requirements of the State and Federal Government requirements of the grants
awarded;or,upon the parties'mutual written agreement,"Workforce Housing Restriction"
may alternatively mean a dwelling unit whose occupancy is subject to a maximum income
limit as allowed by the FHFC and/or the U.S. Department of Housing and Urban
Development (HUD). Tourist housing use or vacation rental use of any Unit(s) are
prohibited. Said restriction shall encumber the Property for the term of the ninety-nine(99)
year lease. Preference shall be granted to qualified full-time employees of Lessor, and to
qualified full-time employees of Lessee. The legal effectiveness and enforceability of such
preference is contingent upon approval of the Florida Department of Economic
Opportunity, Florida Housing Finance Corporation, and United States Department of
Housing and Urban Development.
Moreover, Lessor may establish in the foregoing Workforce Housing Restriction(s)
"means"or"assets"criteria that limit potential rental pools,as allowed by the FHFC and/or
the HUD. Any such amendment shall not increase Initial Lessee's responsibilities as set
forth herein. It is the intent and purpose and shall be the effect of this Lease and the
Workforce Housing Restriction(s) herein, to ensure that the workforce housing units'
affordability of the dwelling unit and dedicated real property upon which they are located is
maintained and enforced such that any administrative rule, policy, or interpretation
thereof, made by Lessor or its designees relating to the maximum total amount of
consideration and cost permitted to be in any way involved in a purchase 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 workforce housing criteria established by FHFC for the dwelling unit involved.In every
case,the construction and interpretation of terms,conditions,and restrictions imposed by
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this Lease and the foregoing Workforce Housing Restriction(s) shall be made in favor of
ensuring that long-term workforce housing benefits for the respective housing resources
inure to the benefit of Monroe County.
"Workforce Housing Unit"means the dwelling unit to be located on the Property in
accordance and in compliance with this Lease, including the Workforce Housing
Restriction. Preference shall be granted to qualified full-time employees of Lessor and/or
Lessee. The legal effectiveness and enforceability of such preference is contingent upon
approval of the Florida Department of Economic Opportunity, Florida Housing Finance
Corporation, and United States Department of Housing and Urban Development. The
parties each agree that 25 such units, all subject to the above-defined Workforce Housing
Restriction, shall be developed on the Property.
"Commencement Date"shall mean the date when Initial Lessee receives a Certificate
of Occupancy for the Workforce Housing Unit.
"Demised Premises" shall mean the property leased pursuant to this Lease for
development of the Workforce Housing Unit(s), more particularly legally described on
attached Exhibit"A."Lessee and Lessor agree that,with respect to the Key Largo(Atlantic
Boulevard)portion of the Demised Premises,no more than one-half of the land area legally
described for that parcel shall be subject to this lease, and that Lessor shall retain the right
to more specifically delineate a lesser or greater area of that parcel(s)to be leased to Lessee
• by a later amendment to this lease. Demised Premises,where the context requires and the
construction is most appropriate,shall also mean portions of the Demised Premises and any
improvements developed thereon.
"Effective Date"shall mean the date this Lease is fully executed and delivered by all
parties and the date that the Lessee shall be entitled to begin to occupy the Demised
Premises for purposes of development and construction of the Project and property
management.
"Initial Lessee" means the Monroe County Housing Authority.
"Lease" shall mean this lease for the creation of the Workforce Housing Unit(s) 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 Lessee(s), that any limitations, restrictions and/or other
covenants of any nature, whether established pursuant to this Lease or by the Workforce
Housing Restriction(s),be given the full force and effect of enforceable covenants running
with the land,equitable servitudes and all other cognizable legal and equitable real property
conventions so as to ensure the overall public workforce 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.
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"Lessor"means the BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, or its assigns or designees. Where the context requires, "Lessor"
may be construed mean an agency or party designated by the Lessor.
"Lessee" means the Initial Lessee and its successors and assigns, including any
Lessor-authorized Association(s) created by Initial Lessee for the Unit tenants, if any, as
well as the individual Unit tenants.
"Project" shall mean the required development of the Demised Premises for
workforce housing units for qualified tenant occupants,primarily the required construction
of such units as set forth in Article XIV,but also including related infrastructure,securing
of required development approvals and permits, financing for the construction of the
Workforce Housing Unit(s), and marketing of the Workforce Housing Unit(s).
"Related Agreements"shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease.
"Rent" shall mean any sum of money due to the Lessor under this Lease for any
reason.The term"Rent"as used herein,shall not be misconstrued as authorizing any rental
use other than that descriptively authorized within the body of this lease, and shall not be
misconstrued to preclude definition and distinguishing of rent,rental rates,and other such
terms as may be provided for in Subleases.
"Sublease" shall mean any combination of instruments that grant, convey or
otherwise transfer a possessory use and/or possessory interest to any portion of the
Demised Premises,including,upon Lessor's subsequent express authorization of rental use
and rental-occupancy of the Workforce Housing Unit(s), such authorize(d) rental
agreement(s)with tenants or renters of a Workforce Housing Unit(s) (which may be more
particularly discussed herein or in the Workforce Housing Restriction(s).The title or exact
nomenclature used to describe such instruments may vary to suit particular circumstances
and shall lie within Initial Lessee's reasonable discretion and still remain within the
meaning herein intended. It is intended that the term Sublease encompasses such
instruments that effectuate qualified end-user, possession, and/or use of Workforce
Housing Unit developed on the Demised Premises.
"Sublessee" or shall be broadly and liberally construed so as to mean an individual
Workforce Housing Unit tenant who, as of the date such person acquires or renews his/her
interest in the Workforce Housing Unit,and qualifies,as applicable,under the Workforce
Housing Restriction.
"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.
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ARTICLE II
Demised Premises.
Section 2 01 Lessor's Demise.Upon the terms and conditions hereinafter set forth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial Lessee of these covenants and the terms and conditions of any Related
Agreements,to be kept and performed by the Initial Lessee,the Lessor does lease,let,and
demise to the Initial Lessee (and permitted successor Lessees) and the "Initial Lessee"
hereby leases from the Lessor,the following described premises,situate,lying and being in
Monroe County, Florida: See attached Exhibit "A." Lessee and Lessor agree that, with
respect to the Key Largo (Atlantic Boulevard) portion of the Demised Premises, no more
than one-half of the land area legally described for that parcel shall be subject to this lease,
and that Lessor shall retain the right to more specifically delineate a lesser or greater area of
a parcel to be leased to Lessee by a later amendment to this lease.
Section 2.02 Conditions. The demise is likewise made subject to the following:
(a) Conditions, restrictions and limitations, if any, now appearing of
record;
(b) The Monroe County Comprehensive Plan,the Monroe County Code of
Ordinances and Monroe County Land Development Code, 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 Workforce Housing Restriction(s) and Related
Agreements, if any.
ARTICLE III
Term
Section 3.01 Term.To have and to hold the Demised Premises for a term of ninety-
nine (99) years commencing on the Commencement Date, and ending ninety-nine (99)
years thereafter,both dates inclusive,unless sooner terminated,or extended,as hereinafter
provided(the"Termination Date"). Lessee shall be given possession on the Effective Date
and the terms and conditions set forth herein shall be binding on the parties as of the
Effective Date. Lessee shall have the right to occupy the Demised Premises as of the
Effective Date in order to allow Lessee to commence construction,as well as other activities
related to the development and construction of the Project.As herein set forth, the Term
will not commence until the Workforce Housing Unit(s)is/are completed and a Certificate
of Occupancy has been issued for said unit(s).
Section 3.02 Renewal Option. So long as Lessee is not then in default under this
Lease, Lessee shall have the option to renew this Lease for an additional ninety-nine
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(99)year period by providing written notice of its election to renew this Lease to Lessor
no less than three (3) months prior to Termination Date. The terms, conditions, and
conditions of the renewal term shall be the same as under this Lease.
ARTICLE IV
Rent
Section 4 01 Annual Base--Rent-. Lessee covenants and agrees to pay to Lessor
promptly when due, without notice or demand, and without deduction or offset,Annual
Base Rent throughout the Term of this Lease beginning on the Commencement Date,in the
amount of Ten Dollars ($10.00) per Lease Year or partial Lease Year. Lessee shall pay to
Landlord said Annual Base Rent upon Commencement of the lease and on the first day of
the second month of each Lease Year throughout the term of this Lease.
Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other
amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in
lawful money of the United States which shall be legal tender in payment of all debts and
dues,public and private, at the time of payment, each payment to be paid to Lessor at the
address set forth herein or at such other place within the continental limits of the United
States as Lessor shall from time to time designate by notice to Lessee. Except for any
income tax payable by the Lessor, Lessee shall pay any and all taxes, including any local
surcharge or other tax, on the Rent payable pursuant to this Lease in addition to the sums
otherwise set forth herein.
Section 4.03.It is intended that the Rent shall be absolutely net to Lessor throughout
the Term,free of any taxes,costs,utilities,insurance expenses,liabilities,charges or other
deductions whatsoever, with respect to the Demised Premises and/or the ownership,
leasing, operation, maintenance, repair, rebuilding, use or occupation thereof.
Section 4.04.All amounts payable by Lessee to Lessor under any of the provisions of
this Lease, if not paid when due as provided for in this Lease, shall bear interest at the
highest rate allowable under Florida law from the time they become due until paid in full by
Lessee. In addition, Lessee shall pay a late fee in the amount of ten (10%) percent of any
amount due from Lessee to Lessor which is not paid within ten (10) days of the payment
due date for any sums due for Rent and within thirty(3o)days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge for dishonored checks
pursuant to 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).
Page 8 of 49
ARTICLE V
Non-Subordination
Section 5.01 Non-Subordination. Notwithstanding anything to the contrary
contained in this Lease, the fee simple interest in the Demised Premises shall not be
subordinated to any leasehold mortgage,lien or encumbrance of any nature without written
permission of the Lessor and Lessee. 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
Workforce Restriction(s)(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 without written permission of the
Lessor and Lessee.
ARTICLE VI
Payment of-Taxes and Utilities
Section 6.01 Lessee's Obligations. From the Effective Date to the Commencement
Date and as additional Rent during the Term of the Lease, the Lessee shall pay and
discharge, as they become due, promptly and before delinquency, all taxes, assessments,
water and sewer rents, rates and charges,transit taxes,charges for public utilities,excises,
levies, licenses and permit fees and other governmental charges (annual easement fee),
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 Workforce Housing Units to Sublessees, or be
associated with any document (to which the Lessee is a party) creating or transferring an
interest or estate in the Demised Premises.With regard to special assessments,if the right
is given to pay either in one sum or in installments, Lessee may elect either mode of
payment and Lessee's election shall be binding on Lessor.
The Lessor shall establish an operating deficit reserve account that shall be funded by
20%of the annual cash flow of the project,as determined by the annual audit.All payments
required for operational expenses shall be made from the project operating account for the
CDBG-DR project. If at any time the remaining balance of said account is or will be
insufficient to meet the payables due, the Lessee shall use the operating deficit reserve
account to cover all expenditures.At such future time as the project operating account has
surplus cash flow,the project operating deficit reserve account shall be replenished in the
exact amount it was reduced to cover the withdrawals made from this account.
Section 6.02 Obligations.Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or
Lessor's legal representative,corporate franchise taxes imposed upon any corporate owner
of the fee of the Demised Premises;provided,however,that if at any time during the term of
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this Lease the methods of taxation prevailing at the commencement of the term hereof shall
be altered so as to cause the whole or any part of the taxes,assessments,levies,impositions
or charges now levied, assessed and imposed, wholly or partially as a capital levy, or
otherwise, on the rents received therefrom, or of any tax, corporation franchise tax,
assessments, levy (including, but not limited to any municipal, state or federal levy),
imposition or charge,or any part thereof,shall be measured by or based in whole or in part
upon the Demised Premises and shall be imposed upon the Lessor, then all such taxes,
assessments,levies,impositions or charges,or the part thereof so measured or based,shall
be paid and discharged by the Lessee. All rebates on account of any taxes, rates, levies,
charges or assessments required to be paid shall belong to Lessee.
Section 6 o3-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 Housing Restriction(s)),
which payment of taxes shall be made and the receipts delivered, at least thirty(3o) days
before the tax, itself, would become delinquent in accordance with the law then in force
governing the payment of such tax or taxes. If, however, the Lessee desires to contest the
validity of any tax or tax claim, the Lessee may do so without being in default hereunder,
provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County,one and one half(1 1/2)times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
thereof shall have been determined,and which written notice and bond or equivalent cash
shall be given by the Lessee to the Lessor,not later than sixty(6o)days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6'04 Lessee's Default If the Lessee shall fail,refuse or neglect to make any of
the payments required in this Article,then the Lessor may,but shall not be required to,pay
the same and the amount or amounts of money so paid,including reasonable attorneys'fees
and expenses which might be reasonably incurred because of or in connection with such
payments, together with interest on all such amounts, at the highest rate allowed by law
shall be repaid by the Lessee to the Lessor,upon the demand of the Lessor,and the payment
thereof may be collected or enforced by the Lessor in the same manner as though such
amount were an installment of Rent specifically required by the terms of this Lease to be
paid by the Lessee to the Lessor,upon the day when the Lessor demands repayment thereof
or reimbursement therefor of and from the Lessee; but the election of the Lessor to pay
such taxes shall not waive the default thus committed by the Lessee. Notwithstanding the
foregoing, Lessee shall have the right to contest any taxes and assessments levied against
Lessee in accordance with Section 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 05 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make
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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 6.06 Proration. The foregoing notwithstanding, the parties hereto
understand and agree that the taxes for the first year(beginning on the Effective Date)and
the last year of the Term shall be prorated proportionately between the Lessor and the
Lessee.
Section 6.07 Appraiser to. Respect Effect of Affordable Workforce Housing
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 Workforce Restrictions on the lawfully realizable value of
relevant portion(s) appraised, or where permissible by state law, "income approach" or
other method of calculation.
ARTICLE VII
Mechanic's Liens -
Section 7.01=No Lien. Neither the Lessee nor any Sublessee shall have the power to
subject the interest of the Lessor in the Demised Premises to any mechanic's or
materialmen's lien of any kind whether or not the improvements are made with the consent
of the Lessor. In accordance with the applicable provisions of the Florida Mechanic's Lien
Law and specifically Florida Statutes, Section 713.10, no interest of the Lessor in the
Demised Premises or in the underlying land shall be subject to liens for improvements
made by Lessee,and Lessee shall notify any contractors,materialmen,subcontractors and
other persons working on such improvements of this provision.Neither the Lessee nor any
Sublessee shall permit or suffer to be filed or claimed against the interest of the Lessor in
the Demised Premises during the continuance of this Lease any lien or claim of any kind,
and if such lien be claimed or filed, it shall be the duty of the Lessee, or the Sublessee, to
which the lien or claim is attributable, or both, within thirty(30) days after the Lessee or
Sublessee shall have been given written notice of such a claim,either by payment or by the
posting of bond or by the payment to a court of competent jurisdiction of the amount
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necessary to relieve and release the relevant portion of the Demised Premises from such
claim, or in any manner which, as a matter of law,will result, within such period of thirty
(3o)days,in releasing the Lessor and the title of thelessor from such claim;and the Lessee
covenants and agrees,with respect to any lien or claim attributable to it,within such period
of thirty (3o) days, so as to cause the affected portion of the Demised Premises and the
Lessor's interest therein to be released from the legal effect of such claim.
Section 7.02 Release ofL en. Neither the Lessee nor any Sublessee shall permit or
suffer to be filed or claimed against the interest of the Lessor in the Demised Premises
during the continuance of this Lease any lien or claim of any kind, and if such lien be
claimed or filed, it shall be the duty of the Lessee, or the Sublessee, to which the lien or
claim is attributable,or both,within thirty(3o)days after the Lessee or Sublessee shall have
been given written notice of such a claim having been filed,to cause the respective portion
of the Demised Premises to be released from such claim, either by payment or by the
posting of bond or by the payment to a court of competent jurisdiction of the amount
necessary to relieve and release the relevant portion of the Demised Premises from such
claim, or in any other manner which, as a matter of law,will result, within such period of
thirty(30)days,in releasing the Lessor and the title of the Lessor from such claim;and the
Lessee covenants and agrees,with respect to any lien or claim attributable to it,within such
period of thirty(3o) days,so as to cause the affected portion of the Demised Premises and
the Lessor's interest therein to be released from the legal effect of such claim.
Section 7 03 Lessee's Default.If the Lessee shall fail,refuse,or neglect to perform its
obligations as required in this Article,then the Lessor may,but shall not be required to,pay
any sums required to cause the Demised Premises and the Lessor's interest therein to be
released from the legal effect of such claim and the amount or amounts of money so paid,
including reasonable attorneys' fees and expenses which might be reasonably incurred
because of or in connection with such payments,together with interest on all such amounts
at the highest rate allowed by law, shall be repaid by the Lessee to the Lessor, upon the
demand of the Lessor, and the payment thereof may be collected or enforced by the Lessor
in the same manner as though such amount were an installment of Rent specifically
required by the terms of this Lease to be paid by the Lessee to the Lessor, upon the day
when the Lessor demands repayment thereof or reimbursement therefor of and from the
Lessee;but the election of the Lessor to pay such amount shall not waive the default thus
committed by the Lessee.
Section 7.04 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
required to,pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so paid, including reasonable attorneys' fees and expenses which might be
reasonably incurred because of or in connection with such payments,together with interest
on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to '
the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or
enforced by the Lessor in the same manner as though such amount were an installment of
Rent specifically required by the terms of this Lease to be paid by the Sublessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement
Page 12 of 49
therefor of and from the Sublessee;but the election of the Lessor to pay such amount shall
not waive the default thus committed by the Sublessee.
ARTICLE VIII
Governing Law,Cumulative Remedies
Section 8.01.Governing Law.All of the rights and remedies of the respective parties
relating to or arising under this instrument and any related documents shall be governed by
and construed under the laws of the State of Florida,and the FHFC RFA and development
agreement.
Section 8.02 Cumulative Remedies.All rights and remedies accruing to the Lessor
shall be assignable in whole or in part and be cumulative; that is, the Lessor may pursue
such rights as the law and this Lease afford to it in whatever order the Lessor desires and
the law permits. Lessor's resort to any one remedy in advance of any other shall not result
in waiver or compromise of any other remedy.
ARTICLE IX
Indemnification of Lessor
Section g.01 Indemnification by Lessee.During the Term of the Lease,and from the
Effective Date to the Commencement Date during which Lessee shall be entitled and
obligated to maintain site control of and insurance for the Demised Premises for
construction of the Workforce Housing Unit(s), Lessee shall indemnify, defend, and hold
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,except
for any claims,debts,demands,or obligations which maybe caused by the gross negligence
or willful misconduct of Lessor. 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 not caused by the gross negligence or willful misconduct of Lessor,the Lessee will
pay the Lessor all costs and reasonable attorneys' fees incurred by the Lessor in effecting
and preparing for such response or defense in addition to any other reasonable sums which
the Lessor maybe called upon to pay by reason of the litigation,adversarial administrative
proceedings, or entry of a judgment against the Lessor in any case or matter in which such
claim is asserted.
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 possession, ownership, occupancy and for use of any portion of the Demised
Page 13 of 49
Premises, and also, for all such future occupants, owners, Lessee, Sublessees, tenants,
guests,invitees and licensees,waives and releases forever all claims,demands and causes of
action against Lessor and its officers, employees, agents, successors, assigns, contractors
and representatives for loss of life or injury to person or property, of whatever nature.
Section 9 02'Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X insuring
the Lessee against any and all claims and demands made by any person or persons
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor(and any lender holding a mortgage on the fee simple or leasehold of
the Demised Premises),as their respective interests may appear,as the persons insured by
such policies.Any loss adjustment shall require the written consent of both the Lessor and
Lessee.
Section 9.03 Policy Limit Changes The policy limits for the comprehensive liability
insurance may reviewed by Lessor every five (5) years and adjusted upward, if, in the
reasonable discretion of Lessor such increase in coverage is prudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance.
Section. 0.04 PropertyIns Trance.From and after the Effective Date,the Lessee will
keep insured any and all buildings and improvements upon the Demised Premises against
all loss or damage by fire, flood and windstorm, together with "all risks" "extended
coverage,"which said insurance will be maintained in an amount sufficient to prevent any
party in interest from being or becoming a co-insurer on any part of the risk,which amount
shall not be less than the full replacement cost value of the relevant portions of the Demised
Premises, and all of such policies of insurance shall include the name of the Lessor as an
additional insured and loss payee 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 mutually designated by the Lessor and Lessee and located in Monroe County,and
may 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), 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 maybe
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
Page 1.4 of 49
purpose and its application for such purpose assured.
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.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as any portion of said Demised
Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the
Lessee shall,within fifteen(15)months(or twenty-four(24)months for a substantially total
loss) from the date of such damage or destruction, rebuild and repair the same in such
manner that the buildings or improvements so rebuilt and repaired, and the personal
property so replaced or repaired, shall be of the same or of a value higher than were the
buildings or improvements and the personal property prior to such damage or destruction,
and Lessee shall diligently prosecute the reconstruction or repairs without delay and have
the same rebuilt and ready for occupancy as soon as reasonably possible after the time when
the loss or destruction occurred. The 15-month period(or twenty-four(24) month period
for a substantially total loss)for reconstruction shall be enlarged by delays caused without
fault or neglect on the part of the Lessee,by act of God,strikes,lockouts,or other conditions
(other than matters of refinancing the property) beyond the Lessee's control.
Notwithstanding the foregoing, and only with respect to insurance proceeds,the provisions
of any leasehold mortgage substantially comporting with customary institutional lending
industry standards and the foregoing Lessor's interests shall control as to the use and
disbursement of insurance funds for reconstruction of the improvements in the event of any
casualty or damage to such improvements.
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 the Workforce Housing Unit untenantable occurring during the last ten(i0)
years of the Term of this Lease,Lessee,if not then in default under this Lease and if there is
no encumbrance on the Lessee's interest in the Demised Premises, may elect to terminate
this Lease by written notice to Lessor within thirty (30) days after the occurrence of the
destruction.In the event of termination,there shall be no obligation on the part of Lessee to
restore or repair the improvements on the Demised Premises,nor any right of the Lessee to
receive any proceeds collected under any insurance policies covering the improvements.If
Lessee elects not to terminate this Lease in the event of destruction during the last ten(io)
years of this Lease,the proceeds of all insurance covering the improvements shall be made
available to Lessee for repairs, and Lessee shall be obligated to repair as set forth above.
Section 10.02 Commercial General Liability. Insurance. The Initial Lessee shall
maintain Commercial General Liability Insurance beginning on the Effective Date and
continuing during the entire Term of this Lease with minimum limits of$1,000,000 per
occurrence. The Commercial General Liability Insurance shall cover those sources of
liability which would be covered by the latest edition of the standard Commercial General
Liability Coverage Form [ISO Form CG oo-oi] as filed for use in Florida without the
attachment of restrictive endorsements other than the elimination of medical payments and
Page 15 of 49
fire damage legal liability.
General Aggregate $1,000,000
[For bodily injury, personal injury, and property damage]
Products/Completed Operations $1,000,000
[coverage for one (1)year after project completion]
Each Occurrence $1,000,000
Contractual Liability $t,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 an additional insured and shall
be named as a loss payee for Commercial General Liability.
Lessee, at Lessee's expense, shall maintain the insurance required by the Lease.
Section 10.03 Environmental Impairment Responsibility The Lessee and/or its
contractors acknowledge that the performance of this Lease is, or may be, subject to
Federal, State and local laws and regulations enacted for the purpose of protecting,
preserving or restoring the environment.The Lessee shall, at the sole cost of the Lessee or
its contractors,be responsible for full compliance with any such laws or regulations.
Section 1004 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, at Lessor's election, 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.
Section ioo5 Damages; Insurance Proceeds;. Joint Bank Account.. Absent
circumstances reasonably excused under the conditions set forth in paragraph 14.03,in the
case of the Lessee not entering into the reconstruction or repair of the building or buildings
within a period of six (6) months from the date of payment of the loss, after damage or
destruction occasioned by fire,windstorm,flood or other cause,and diligently prosecuting
the same with such dispatch as may be necessary to complete the same in as short a period
of time as is reasonable under the circumstances after the occurrence of such damage or
destruction, then the amount so collected, or the balance thereof remaining in the joint
account, as the case maybe,shall be paid to the Lessor and it will be at the Lessor's option
Page 16 of 49
to terminate the Lease, unless terminated by Lessee within the last ten (io) years of the
Lease as set forth above, and retain such amount as liquidated and agreed upon damages
resulting from the failure of the Lessee to promptly, within the time specified, complete
such work of reconstruction and repair.
Sectionio:o6 Proceeds Payable to Mortgagee. If any mortgagee holding a lawful
mortgage lawfully created pursuant to the provisions of Article XV elects, in accordance
with the terms of such mortgage,to require that the proceeds of any casualty insurance be
held by and paid out by the mortgagee,then such payment may be made,but in such event,
it shall still be obligatory upon the Lessee to create the complete fund with the leasehold
mortgagee in the manner set forth in this Article to assure complete payment for the work
of reconstruction and repair.Any mortgagee holding insurance proceeds shall require that
such proceeds are properly used to ensure repairs,but any mortgagee shall not be liable for
misuse of funds by Sublessee or Lessee.
Section.10.07 Damages; Insurance Proceeds; Joint Bank Account. Any excess of
money received from insurance remaining in the joint bank account after the reconstruction
or repair of such building or buildings, if the Lessee is not in default, shall be paid to the
Lessee.Absent circumstances reasonably excused under the conditions set forth in Section
14.03,in the case of the Lessee not entering into the reconstruction or repair of the building
or buildings within a period of six (6) months from the date of payment of the loss, after
damage or destruction occasioned by fire,windstorm, flood or other cause, and diligently
prosecuting the same with such dispatch as may be necessary to complete the same in as
short a period of time as is reasonable under the circumstances after the occurrence of such
damage or destruction,then the amount so collected, or the balance thereof remaining in
the joint account,as the case maybe,shall be paid to the Lessor and it will be at the Lessor's
option to terminate the Lease,unless terminated by Lessee within the last ten(1o)years of
the Lease as set forth above, and retain such amount as liquidated and agreed upon
damages resulting from the failure of the Lessee to promptly, within the time specified,
complete such work of reconstruction and repair.
Section 10.08 Direct.Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of one hundred thousand 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 10,09 General Requirements.All insurance to be provided by Lessee under
this Lease shall be effected under valid and enforceable policies in such forms, issued by
insurers of recognized financial responsibility qualified to do business in Florida which have
been approved by Lessor.All policies of insurance provided for in this Article shall,to the
extent obtainable,contain clauses or endorsements to the effect that(i)no act or negligence
of Lessee or anyone acting for Lessee or for any Sublessee or occupant of the Demised
Premises which might otherwise result in a forfeiture of such insurance or any part thereof
shall in any way affect the validity or enforceability of such insurance insofar as Lessor,and
Page 17 of 49
that (ii) such policy of insurance shall not be changed or cancelled without at least thirty
(3o) days written notice to the Lessor, and that (iii) the Lessor shall not be liable for any
premiums thereon or subject to any assessments thereunder.
Section 1016 Subsequent Lessees,_ Assignees, .'Sublessees and ;Grantees..,
Notwithstanding anything contained herein to the contrary, if applicable, in the event an
authorized Association chooses not to obtain insurance coverage to protect against loss or
damage by fire, flood and windstorm for the individual Workforce 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 Workforce Housing Units.Therefore,Lessor shall be
entitled to require replacement cost and other customary and reasonable insurance
coverage(s) at least but only to the full replacement value of any Sublessees' and/or any
governing Association's insurable interest in the Demised. Premises. Any parties who
subsequently become holders of any title or possessory interest to a portion of the Demised
Premises, shall upon request provide, in a form satisfactory to Lessor,proof of customary
and reasonable insurance adequate and sufficient to cover and protect all interests of the
Lessor as set forth in this Article X, at least to the extent and value of that subsequent
interest holder's insurable interest. The same or similar procedures for the use and
application of insurance proceeds as set fortis 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 and as a loss payee on any required insurance policies.
Section.10.11 Additional Insured and Loss Payee. Lessor shall be named as an
additional 'insured and as a loss payee on all policies issued to satisfy the above
requirements of Article X.
ARTICLE XI
Insurance Premiums
Section i1.oi Insurance Premiums. The Lessee shall pay premiums for all of the
insurance policies which the Lessee is obligated to carry under the terms of this Lease. In
the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the
right,but not the obligation,without notice to Lessee,to procure such insurance and/or pay
the premiums of such insurance,in which case Lessee shall repay Lessor immediately upon
demand by Lessor as additional Rent.The Lessor shall have the same rights and remedies
with respect to procurement of such insurance and/or payment of such insurance
premiums in the event a future subsequent partial interest holder (e.g., Sublessee,
Association (if applicable)) fails to obtain and pay for the necessary insurance.
Page 18 of 49
ARTICLE XII
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee.Without the written consent of Lessor,
Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise expressly provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the affordable
Workforce Housing Unit(s) is/are to be developed as a unit(s)for workforce housing.
Any Lessor-authorized assignment or sublet, must contain the provisions for the
Workforce Housing Restriction(s), as set forth in this Lease.
Section.12.02 Initial Lessee/ Initial:Affordable Workforce Housing.Rental. Initial
Lessee shall be authorized to rent the Workforce Housing Unit to individuals qualified to
rent the Workforce Housing Unit and subject to all other CDBG-DR program requirements.
Notwithstanding anything contained herein to the contrary,all Sublessees and occupants of
such Workforce Housing Unit(s)shall meet the requirements under the Workforce Housing
Restriction(s)and all other CDBG-DR program requirements,adjusted for family size,and
any other applicable workforce housing restrictions. Initial Lessee shall upon Lessor's
request provide verification in the same form and manner,as required by the FHFC on an
annual basis that sublessees and tenants for the Workforce Housing Unit meet and satisfy
the requirements herein.
Section 12.03 Assignment/Transfer by Lessee.At such time as any Lessee desires to
sell or otherwise transfer their interests in the Workforce Housing Unit,and(if applicable) •
where Lessor, subsequent to the effective date of this Lease, expressly and in writing
consents to the assignment, rental, rental use, rental occupancy, or subletting of the
Workforce Housing Unit(s) or interests, such Lessee shall be required to follow the
procedures set forth herein and any procedure that may be set forth in the Workforce
Housing Restriction(s), 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 governing documents,shall contain the
following required Notice of Restrictions in a conspicuous location on the upper one-half of
the first page of the relevant instrument effectuating the interest in bold capital typed
letters greater than or equal to 14-point font:
NOTICE OF RESTRICTIONS
ANY INSTRUMENT OF CONVEYANCE,LEASE,ASSIGNMENT,GRANT
OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED
THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT
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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 and the first
recorded page of any other recorded documents affecting the respective portion of the
Demised Premises shall be set forth in the Notice of Restrictions. Any instrument of
conveyance, lease, assignment or other disposition made without following the notice
procedures set forth herein shall be void and confer no rights upon any third-person,
though such instruments may in some cases be validated by fully correcting them according
to procedures established by Lessor, as determined in Lessor's sole discretion, so as to
ensure compliance with the public affordability purposes furthered by this Lease and the
Workforce Housing Restriction(s).
Any rental agreement shall contain the following warning prominently set forth in
writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER OR ABANDONMENT,AS DEFINED BY CHAPTER 83
FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'S
PERSONAL.PROPERTY.. . . :..
Section 12.05 Obtaining:Q:ualified`Tenants. If Lessee cannot find a suitable sub-
lessee or qualified tenant for the Workforce Housing Unit(s),Lessee shall notify Lessor who
may provide Lessee with a qualified person.
Section 12.06 Assignment by Lessor. This Lease shall be freely assignable by the
Lessor, and upon such assignment, the Lessor's liability shall cease and Lessor shall be
released from any further liability. In the event the ownership of the land comprising the
Leased Premises is conveyed or transferred(whether voluntarily or involuntarily)by Lessor
to any other person or entity, this Lease shall not cease, but shall remain binding and
unaffected.
ARTICLE XIII
Condemnation
Section 13.01 Eminent Domain;:Cancellation.If,at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain,there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances.If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (30) days after such award has been
Page 20 of 49
made, then the matters in dispute shall be determined in accordance with mediation
according to the rules of the i6th Judicial Circuit in Monroe County. Such determination
made by the mediation shall be binding on the parties. If the legal title to the entire
Demised Premises be wholly taken by condemnation,the Lease shall be cancelled.
Section 13.02 Apportionment.Although the title to the building and improvements
placed by the Lessee upon the Demised Premises will on the Termination Date remain with
and/or pass to the Lessor,nevertheless,for purpose of condemnation,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 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.
ARTICLE XIV
Construction
Section 14.01 Requirement to Construct Project.
(a) Lessee shall commence construction of the Workforce Housing Units on the
commencement date of this lease.All improvements depicted on the attached
Exhibits shall be completed. All improvements shall be made with the
required and appropriate building permits and to the standards of the Florida
Building Code. The foregoing limitation of time for the commencement or
completion of the Project maybe extended by written agreement between the
parties hereto.Lessee is responsible for all environmental remediation on the
Property and in the building(s)situated thereon using appropriately licensed
contractors,whether disclosed in the environmental site assessment, if any,
prepared for the Property,or not disclosed,whether known or unknown,now
or in the future.Lessee specifically agrees that the indemnification provisions
of this lease extend to and apply to this provision.
(b) During the course of construction of the subject project,Lessee shall provide
to the Lessor written status reports on said project upon request by the
Lessor.The Lessor and Lessee,and the Lessee's agents and contractors,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 records are subject to public disclosure under the provisions of
Chapter lig, Florida Statutes, or successor or supplemental statutes.
Page 21 of 49
Lessee(s) (but not individual sub-lessees) shall maintain all records directly
pertinent to performance under this lease in accordance with Chapter 119,
F.S., and in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said
officials.
(c) The County Clerk, State Auditor, or a designee of said officials or of the
Lessor, shall, during the term of this Agreement and for a period of five (5)
years from the date of termination of this Agreement,have access to and the
right to examine and audit any Records of the Lessee involving transactions
related to this Agreement.
(d) 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.
(e) The 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 subject project.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's.
Nothing in this lease shall be construed as Lessor's delegation or abdication of
its zoning or comprehensive planning authority or powers and no zoning or
comprehensive planning approval that Lessee may require to complete its
performance under this lease has been or shall be deemed agreed to,
promised for, or contracted for, under this lease.
(f) 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.
(g) At all times and for all purposes hereunder, the Lessee is an independent
contractor/lessee and is not an employee of Lessor or any of Lessor's agencies
or departments. No statement in this lease shall be construed to find the
Lessee or any of its employees, contractors, servants, or agents to be
employees of the Lessor, 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 the County or of the Lessee in his or
her individual capacity, and no member, officer, agent, or employee of the
County or of the Lessee shall be liable personally in any way in connection
with, arising out of, or related to this lease or be subject to any personal
Page 22 of 49
liability or accountability by reason of this lease's execution.
(h) 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.
ID Lessee shall be entitled during the full term of this Lease to make alterations
to the Demised Premises in accordance with the requirements set forth in the
eight sub-paragraphs immediately above(i.e.,sub-paragraphs(a)through(i),
inclusive).
14.02 Access to the'Pioject and.Inspection.The Lessor or its duly appointed agents
shall have the right,at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises,as determined in Lessor's reasonable
discretion. Lessor's designees,for purposes of this Article and Section 14.02,shall include
city, county or State code or building inspectors, and the like, without limitation. Initial
Lessee shall permit building and code inspectors' access customary to the performance of
their duties related to projects of the nature contemplated herein,said notice requirements
notwithstanding.
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.Notwithstanding the foregoing,Lessor shall not be obligated
to execute any contracts or easements for utilities.
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ARTICLE XV
Mortgage Financing
Section 15.01 Financing By Initial. Lessee. Initial Lessee shall have the right to
mortgage its interests in the Demised Premises.
(a) The Lessee shall have the right to encumber by mortgage or other
proper instrument Lessee's interest under this Lease,such as buildings and improvements
placed by Lessee on the Demised Premises,a Federal or State Savings&Loan Association,
Bank or Trust Company,Insurance Company,Pension Fund or Trust(or to another private
lender so long as the terms and conditions of the financing from private lender are on
substantially similar terms to those then existing by the other lenders referred to in this
Section),or to similar lending institutions authorized to make leasehold mortgage loans in
the State of Florida, or to any public or quasi-public lender.
(b) Until the time any leasehold mortgage(s) shall be satisfied of record,
when giving notice to the Lessee with respect to any default under the provisions of this
Lease, the Lessor shall also serve a copy of such notice upon the Lessee's leasehold
mortgagee(s) at addresses for notice set forth in the mortgage instrument(s) (including
assignments thereof) as recorded in the Official Records of Monroe County, Florida. No
such notice to the 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. Lessee shall provide Lessor with written notice of the book and page
number of the Official Records of Monroe County, Florida for each mortgage by which it
encumbers the Demised Premises,including modifications and assignments thereof.
(c) In case the Initial Lessee shall default under any of the provisions of
this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such
default whether the same consists of the failure to pay Rent or the failure to perform any
other matter or thing which the Initial Lessee is required to do or perform and the Lessor
shall accept such performance on the part of the leasehold mortgagee(s)as though the same
had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the
date of mailing by Lessor of the notice referred to in subparagraph(b)of this Section 15.01
shall have,in addition to any period of grace extended to the Initial Lessee under the terms
and conditions of this Lease for a non-monetary default,a period of sixty(60) days within
which to cure any non-monetary default or cause the same to be cured or to commence to
cure such default with diligence and continuity;provided,however,that as to any default of
the Initial Lessee for failure to pay Rent, or failure to pay any amount otherwise required
under the terms of this Lease(e.g.,including,but not limited to,taxes or assessments),the
leasehold mortgagee(s) shall have thirty(30) days from the date the notice of default was
mailed to the mortgagee(s) within which to cure such default.
(d) In the event of the termination of this Lease with Initial Lessee for
defaults described in this Article XV, or of any succeeding Lease made pursuant to the
provisions of this Section 15.01(d) prior to the cure provisions set forth in Section 15.01(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
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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 (30) days from the date of such
termination and such written request and such new Lease is accompanied by payment to
the Lessor of all amounts then due to the Lessor, including reasonable counsel fees, court
costs and disbursements incurred by the Lessor in connection with any such default and
termination as well as in connection with the execution, delivery and recordation of such
new Lease,less the net income collected by the Lessor subsequent to the date of termination
of this Lease and prior to the execution and delivery of the new Lease, and any excess of
such net income over the aforesaid sums and expenses to be applied in payment of the Rent
thereafter becoming due under such new Lease.
Any new Lease referred to in this Section 15.o1(d) shall not require any
execution, acknowledgement or delivery by the Lessor in order to become effective as
against the Lessee(or any Sublessees)and the Lessee(and any Sublessees)shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
theretofore have received written notice; and (ii) an agreement by the leasehold
mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition,immediately
upon receipt by the Lessor such new Lease,as provided in this Section 15.01(d),the Lessor,
where appropriate to the circumstances,shall be deemed to have executed,acknowledged
and delivered to the leasehold mortgagee(s) an assignment of all Subleases covering the
Demised Premises which theretofore may have been assigned and transferred to the Lessor
and all Subleases under which Sublessees shall be required to attorn to the Lessor pursuant
to the terms and conditions of such Subleases or this Lease.Such assignment by the Lessor
shall be deemed to be without recourse as against the Lessor. Within ten (io) days after a
written request therefore by the leasehold mortgagee(s),such assignment or assignments
shall be reduced to a writing in recordable form and executed,acknowledged and delivered
by the Lessor to the leasehold mortgagee(s).
(e) The 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.o1(f)below.
(f) In the event that a leasehold mortgagee(s)shall become the owner or
holder of the Lessee's interest by foreclosure of its(their)mortgage(s)or by assignment of
this lease in lieu of foreclosure or otherwise, all terms used herein to refer to the Lessee in
this lease, means only the owner or holder of this signatory Lessee's interest for the time
period that such leasehold mortgagee(s)is(are)the owner or holder of the Lessee's interest.
Accordingly, in the event of a sale, assignment, or other disposition of the Initial Lessee's
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interest in this Lease by the leasehold mortgagee(s),where leasehold mortgagee(s)took title
or ownership of or to any or all of the Initial Lessee's interest in the Lease and/or any
portion of the Demised Premises as a result of foreclosure or acceptance of an assignment in
lieu thereof, it shall be deemed and construed, without further agreement between the
Lessor and the mortgagee(s),or between the Lessor,the mortgagee(s)and the mortgagees'
purchaser(s)or assignee(s)at any such sale or upon assignment of Initial Lessee's interest
by the leasehold mortgagee(s), that the mortgagee(s), purchaser(s), or assignee(s) of the
Initial Lessee's interest has/have assumed and agreed to carry out any and all covenants
and obligations of Initial Lessee contemplated herein.In no event shall anything under this
Lease be construed to permit eventual use of the Demised Premises for purposes
inconsistent with this Lease or the Workforce Housing Restriction(s).
(g) 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 Official Records of Monroe County, Florida,together with written notice setting forth
the name and address of the assignee(s).
(h) Reference in this Lease to acquisition of the Initial Lessee's interests in
this Lease by the leasehold mortgagee(s) shall be deemed to refer, where circumstances
require,to acquisition of the Initial Lessee's interest in this Lease by any purchaser at a sale
of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold
mortgagee(s)in such instance or instances shall also be applicable to any such purchaser(s).
(i) So long as the Lessee's interest in this Lease shall be mortgaged to a
leasehold mortgagee(s),the parties agree that they shall not surrender or accept a surrender
of this Lease or any part of it,nor shall they cancel, abridge or otherwise modify this Lease
or accept material prepayments of installments of Rent to become due without the prior
written consent of such mortgagee(s) in each instance.
(j) So long as the Initial Lessee's interest in this Lease shall be mortgaged
to a leasehold mortgagee(s),the parties agree that the Lessor shall not sell,grant or convey
to the Initial Lessee all or any portion of the Lessor's fee simple title to the Demised
Premises without the prior written consent of such leasehold mortgagee(s). In the event of
any such sale, grant or conveyance by the Lessor to the Initial Lessee, the Lessor and the
Lessee agree that no such sale,grant or conveyance shall create a merger of this Lease into a
fee simple title to the Demised Premises. This subparagraph (j) shall not be construed to
prevent a sale, grant or conveyance of the Lessor's fee simple title by the Lessor to any
person, firm or corporation other than the Initial Lessee, its successors, legal
representatives and assigns, so long as this Lease is not terminated.
(k) If applicable, in conjunction and contemporaneously with the sale or
transfer of each Workforce Housing Unit,leasehold mortgagee(s)shall make arrangement
to ensure the release of any and all applicable portions of its (their) mortgage(s) on the
entire Demised Premises so as to grant clear title to the Sublessee.The details and release
payment requirements shall remain within the reasonable business discretion of the Initial
Lessee and the leasehold mortgagee(s).
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(1) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of priority with
respect to foreclosable interests or rights according to the laws of the State of Florida or as
contractually agreed by and among multiple mortgagees,where there are such.
ARTICLE XVI
Default
Section 16.01 Notice of Default. Lessee shall not be deemed to be in default under
this Lease in the payment of Rent or the payment of any other monies as herein required
unless Lessor shall first give to Lessee and any mortgagees ten (10) days written notice of
such default and Lessee or any other party on its behalf fails to cure such default within ten
(10) days of verifiable receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section,Lessee and Mortgagees shall not be deemed to be in default under this Lease unless
Lessor shall first give to Lessee and Mortgagees thirty (30) days written notice of such
default, and Lessee fails to cure such default within the immediate thirty(3o) day period
thereafter, or, if the default is of such a nature that it cannot be cured within thirty (3o)
days,Lessee fails to commence to cure such default within such period of thirty(30)days or
fails thereafter to proceed to the curing of such default with all possible diligence.
Mortgagees shall be entitled to cure Lessee defaults on the same terms and conditions as
the Lessee.
Regardless of the notice and cure periods provided herein, in the event that more.
rapid action is required to preserve any right or interest of the Lessor in the Demised
Premises due to any detrimental event or occurrence(such as,but not limited to,payment
of insurance premiums,actions to prevent construction or judgment lien foreclosures or tax
sales),then the Lessor is empowered to take such action and to request reimbursement or
restoration from the Lessee as appropriate.
Lessee shall comply with all terms and conditions set forth in the Lease. Lessee
hereby acknowledges that a default of the lease shall be considered a default hereunder.
Lessee hereby indemnifies and holds Lessor harmless in regard to any of the fees, costs,
expenses,payments and liabilities related to this lease.In the event the lease is terminated
due to Lessee's failure to comply with the terms of the lease, Lessee shall indemnify and
hold Lessor harmless for any costs or expenses incurred by Lessor to obtain approval of a
new lease, or any damages resulting from termination of said lease.
Section 16.02 Default. In the event of any material breach of this Lease by Lessee,
and after the necessary notice and cure opportunity provided to Initial Lessee and other
parties, Lessor shall have the immediate right to terminate this Lease as permitted by
applicable law. In any action by Lessor asserting a violation of the Workforce Housing
Restriction(s), Lessee shall have the burden of proof with respect to each such matter.
Termination of the Lease, under such circumstances, shall constitute effective, full and
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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. Furthermore,in the event of any breach of this Lease by Lessee,
Lessor, in addition to the other rights or remedies it may have, shall have the immediate
right of re-entry (as may be lawfully conditioned per application of Chapter 83, Florida
Statutes,as amended)and may remove all persons and personal property from the affected
portions of the Demised Premises. Such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Lessee, or where statutory
abandonment or unclaimed property law permits,disposed of in any reasonable manner by
Lessor without liability or any accounting therefore.
Included in this right of reentry,and subject to Initial Lessee's rights,if any,shall be
any instance wherein a Sublessee renounces the Lease or a Sublease or abandons all or any
portion of the Demised Premises,in which case Lessor may,at its option,in an appropriate
case and subject to any rights of a mortgage holder, obtain possession of the abandoned
property in any manner allowed or provided by law, and may, at its option, re-let the
repossessed property for the whole or any part of the then unexpired term, receive and
collect all Rent payable by virtue of such reletting, and hold Sublessee liable for any
difference between the Rent that would have been payable under this Lease and the net
Rent for such period realized by Lessor,by means of such reletting. However,such Lessor
rights shall not abrogate a mortgagee's rights to the extent those rights do not conflict with
or injure Lessor's interests as established under this Lease. Personal property left on the
premises by a Sublessee may be stored, sold, or disposed of by Lessor, and Lessor accepts
no responsibility other than that imposed by law.
Should Lessor elect to re-enter,as herein provided,or should Lessor take possession
pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may
either terminate this Lease or it may from time to time,without terminating this Lease,re-
let the Demised Premises or any part thereof for such term or terms (which may be for a
term extending beyond the Term of this Lease)and at such Rent or Rents and on such other
terms and conditions as Lessor in its sole reasonable discretion may deem advisable with
the right to make alterations and repairs to the Demised Premises.On each such re-letting
Lessee shall be immediately liable to pay to Lessor, in addition to any indebtedness other
than Rent due under this Lease,the expenses of such re-letting and of such alterations and
repairs,incurred by Lessor,and the amount,if any,by which the Rent reserved in this Lease
for the period of such re-letting (up to but not beyond the term of this Lease) exceeds the
amount agreed to be paid as Rent for the Demised Premises for such period of such
re-letting.
Notwithstanding any such re-letting without termination, Lessor may at any time
thereafter elect to terminate this Lease for such previous breach. Should Lessor at any time
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach,including the cost
of recovering the Demised Premises,which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.03 Lessor's Right to Perform,In the event that Lessee, by failing or
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neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty(3o)
days after receipt of written notice from Lessor specifying the nature of the act or thing to
be done or performed,then Lessor may,but shall not be required to,do or perform or cause
to be done or performed such act or thing (entering on the Demised Premises for such
purposes,with notice,if Lessor shall so elect),and Lessor shall not be or be held liable or in
any way responsible for any loss, inconvenience or annoyance resulting to Lessee on
account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof,
including compensation to the agents and employees of Lessor. Any act or thing done by
Lessor pursuant to the provisions of this section shall not be construed as a waiver of any
such default by Lessee, or as a waiver of any covenant,term or condition herein contained
or the performance thereof, or of any other right or remedy of Lessor, hereunder or
otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this
Lease, if not paid when the amounts become due as provided in this Lease, shall bear
interest from the date they become due until paid at the highest rate allowed by law.Lessor
shall have the same rights set forth in this Section with respect to any future subinterest
holder's respective portion of the Demised Premises.
Section 16.04 Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.05.Workforce HbusingRestrictions.In the event the Lessee or sublessee
fails to comply with the Workforce Housing Restriction(s) at any given time or any portion
of the Demised Premises is used for purposes other than Workforce Housing in accordance
with the Workforce Housing Restriction(s) by an interest holder of such portion, as they
pertain to their respective interests in or portions of the Demised Premises, such an
occurrence will be considered a material default by the offending party. Should the
foregoing type of use default occur with respect to only one or more subtenants'portion(s)
of the Demised Premises, then the default termination provisions provided for in this
subsection, shall apply only to those subtenant(s) and sublease(s) in default. In the
foregoing event,Lessor(or the Initial Lessee(or its assigns)in the event of and with respect
only to a default by a particular Sublessee) may terminate the subleases and tenancies
involved. Lessee hereby agrees that all occupants shall use the Leased Premises and
Improvements for Workforce Housing 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 in writing by Lessor.
Section 16.06. The Lessee, or its property management entity-agent(that has been
duly approved in writing by Lessor), shall do everything within its power to ensure that
there is no month of negative cash flow.
ARTICLE XVII
Repair..Obligations
Section 17.01:Repair:Obligations. During the continuance of this Lease the Lessee,
and every Sublessee with respect to their leased portions of the Demised Premises, shall
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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,and the
Lessee shall not suffer or permit any material strip,waste or neglect of any building or other
property to be committed,except for that of normal wear and tear.The Lessee will(or shall
cause Sublessee to) repair, replace and renovate such property as often as it may be
necessary in order to keep the buildings and other property which is the subject matter of
this Lease in first class repair and condition.Additionally, Lessor shall not be required to
furnish any services or facilities, including but not limited to heat, electricity, air
conditioning or water or to make any repairs to the premises or to the Workforce Housing
Unit.
ARTICLE XVIII
Additional Covenants:of Lessee/Lesson
:Section 18.01.I Legal Use.The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used exclusively for the construction and operation of Workforce
Housing dwelling unit(s) and for no other purposes whatsoever without Lessor's written
consent.
Section 18.02 Termination.Upon termination of this Lease,the Lessee will peaceably
and quietly deliver possession of the Demised Premises, unless the Lease is extended as
provided herein. Therefore, Lessee shall surrender the improvements together with the
leased premises. Ownership of some or all improvements shall thereupon revert to Lessor.
Section.-18.03 Recovery.of Litigation Expense. In the event of any suit, action or
proceeding,at law or in equity,by either of the parties hereto against the other,or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease,including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys'fees including appellate,bankruptcy and post judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Workforce Housing Restriction(s) from any person or persons from or to
whom a demand or enforcement request is made,regardless of actual initiation of an action
or proceeding.
Section 18.04 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition"as-is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee,at its sole cost and expense,shall bring or cause
to be brought to the Demised Premises adequate connections for water, electrical power,
telephone,stormwater and sewage and shall arrange with the appropriate utility companies
for furnishing such services with no obligation therefore on the part of Lessor.The Lessor
makes no express warranties and disclaims all implied warranties. Lessee accepts the
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property in the condition in which it currently is without representation or warranty,
express or implied,in fact or by law,by the Lessor,and without recourse to the Lessor as to
the nature, condition or usability of the Demised Premises, or the uses to which the
Demised Premises may be put.The Lessor shall not be responsible for any latent defect or
change of condition in the improvements and personalty,or of title,and the Rent hereunder
shall not be withheld or diminished on account of any defect in such title or property, any
change in the condition thereof,any damage occurring thereto,or the existence with respect
thereto of any violations of the laws or regulations of any governmental authority.
Section 18.05 Hazardous Materials. Lessee, its Sublessees and assignees shall not
permit the presence,handling,storage or transportation of hazardous or toxic materials or
medical waste ("hazardous waste") in or about the Demised Premises, except in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines of any
government agency having jurisdiction and the applicable board of insurance underwriters.
In no event shall hazardous waste be disposed of in or about the Demised Premises. For
purposes herein, the term hazardous materials or substances shall mean any hazardous,
toxic or radioactive substance material, matter or waste which is or becomes regulated by
any federal, state or local law, ordinance, order, rule, regulation, code or any other
governmental restriction or requirement and shall include petroleum products and asbestos
as well as improper or excessive storage or use of common household cleaning and
landscaping chemicals, pesticides, batteries and the like, and those materials defined as
hazardous substance or hazardous waste in the Comprehensive Environmental Response
Compensation and Liability Act and/or the Resource Conservation and Recovery Act.
Lessee shall notify Lessor immediately of any known discharge or discovery of any
hazardous waste at, upon, under or within the Demised Premises. Lessee shall, at its sole
cost and expense,comply with all remedial measures required by any governmental agency
having jurisdiction, unless such discharge is caused by Lessor or any of its agents or
employees.
Lessee hereby acknowledges that Lessor shall not be liable for any hazardous waste
that may be located on the Demised Premises at the time of execution of this Lease.
Furthermore, Lessee hereby indemnifies and holds Lessor harmless for any and all claims,
liabilities, damages, costs and expenses related to the presence of hazardous waste after
execution of this Lease.
Section 18.06 Recordation.Lessee,or Lessor at Lessee's cost,within five(5)business
days after execution of this Lease, shall record a complete, true and correct copy of the
Lease and any addenda or exhibits thereto in the Official Records of Monroe County,
Florida and shall provide Lessor with the written Clerk's receipt of the book and page
number where recorded and the original Lease and Related Agreement(s)after recordation.
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ARTICLE XIX
Representations,Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose:or Use.
Section 19:01 Representations; Warranties of Title and Quiet Enjoyment. Lessee
hereby acknowledges that Lessor is merely acting as a conduit to complete this transaction;
therefore Lessor does not make any representations or warranties with respect to the
ownership, operation or environmental condition of the Demised Premises or any part
thereof. The Lessor and Lessee covenant and agree that so long as the Lessee keeps and
performs all of the covenants and conditions required by the Lessee to be kept and
performed, the Lessee shall have quiet and undisturbed and continued possession of the
Demised Premises from claims by Lessor.
Section 19.02 No Unlawful or Immoral.Purpose:or.Use.The Lessee,as long as it has
any interest in or to any portion of the Demised Premises, shall not occupy or use such
portion for any unlawful or immoral purpose and will, at Lessee's sole cost and expense
during such period of interest,conform to and obey any present or future ordinance and/or
rules, regulations, requirements and orders of governmental authorities or agencies
respecting the use and occupation of the Demised Premises.
ARTICLE XX
Miscellaneous
Section 20.01 Covenants Running with Land. All covenants, promises, conditions
and obligations contained herein or implied by law are covenants running with the land
and, except as otherwise provided herein, shall attach and bind and inure to the benefit of
the Lessor and Lessee and their respective heirs, legal representatives, successors and
assigns, though this provision shall in no way alter the restrictions on assignment and
subletting applicable to Lessee hereunder. The parties agree that all covenants,promises,
conditions, terms, restrictions and obligations arising from or under this Lease and the
Workforce Housing Restriction(s)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 20.03.Written Modifications.No modification,release,discharge or waiver
of any provisions hereof shall be of any force, effect or value unless in writing signed by
both the Lessor and Lessee, and signed also by any mortgagee or their duly authorized
agents or attorneys, as long as such mortgagee (if applicable) has both (i) filed in Official
Records of Monroe County, Florida, a"Certificate of Notice"of their interest in this Lease
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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 U.S.Postal Service
certified mail, return receipt requested.
Notwithstanding the foregoing,the Monroe County Administrator,or his authorized
designee, may make certain modifications to this lease without requiring an antecedent
affirmative vote by Lessor's Board of County Commissioners.The circumstances in which
such administrative modification(s) may be made are limited to: (1)Amend this lease by
delineating lesser or greater areas of the overall Property being leased to Lessor(presently
identified herein at Exhibit "A."), and to (2), Amend this lease to comply with any
application requirements of the FHFC RFA 2019-101 CDBG-DR in Monroe County.Either
administrative lease amendment type must be made in writing and otherwise be in
accordance with this subsection.
Seetion20.04 Entire Agreement.This Lease,including its prefatory recitals and any
written addenda and attached exhibits (all of which are expressly incorporated herein by
this reference)shall constitute the entire agreement between the parties with respect to this
instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 2o.os Notices. If Lessee desires to give notice to Lessor 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.Notification to Lessor shall be as set forth herein,unless a different method is later
directed as prescribed herein or by the Workforce Housing Restriction(s):
Lessor:
County Administrator
Monroe County
Gato Building
1100 Simonton Street
Key West, FL 33040
with a copy.to:
Monroe County Attorney
1111 12th Street, Suite 408
Key West, Florida 33040
Tel.: 305-292-3470
Lessee:
Monroe County Housing Authority
Page 33 of 49
Attn: Executive Director
140o Kennedy Drive
Key West, FL 33040
Section 20.06 Joint Liability. If the parties upon either side (Lessor or Lessee)
consist of more than one person, such persons shall be jointly and severally liable on the
covenants of this Lease.
Section 20.07 Public Access and Public. Records Compliance. The Lessee must
comply with all Florida public records laws, including but not limited to Chapter 119,
Florida Statutes and Section 24, Article I, of the Florida Constitution. Lessor and Lessee
shall allow and permit reasonable access to, and inspection of, all documents, records,
papers, letters, or other "public record" materials in its possession or under its control
subject to the provisions of Chapter 119, Florida Statutes, and additional Florida legal
authorities governing confidential and/or confidential and exempt public records, and
made or received by the Lessor or Lessee in conjunction with and in connection with this .
Lease and related to Lease performance. Failure of the Lessee to abide by the terms of this
provision shall entitle Lessor to, at its option, deem such failure a material breach of this
agreement, and Lessor may enforce the public records law terms of this provision in the
form of a court proceeding. This provision shall survive any termination or expiration of
this Lease. The Lessee is encouraged to consult with its advisors about Florida's public
records laws in order to comply with this provision. Pursuant to Section 119.0701, Florida
Statutes, and the terms and conditions of this agreement, the Lessee is required to:
(1) Keep and maintain public records that would be required by the Lessor to
perform its service and duties under this agreement.
(2) Upon receipt from the Lessor's custodian of records,provide the Lessor with a
copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in this
provision and Chapter 119, Florida Statutes or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law for the duration of the lease term and following completion of the lease if the
Lessee does not transfer the records to the Lessor.
(4) Upon completion of the lease, transfer, at no cost, to the Lessor all public
records in possession of the Lessee or keep and maintain public records that
would be required by the Lessor to perform its service and duties under this
agreement. If the Lessee transfers all public records to the Lessor upon
completion of the lease,the Lessee shall destroy any duplicate public records that
are exempt or confidential and exempt from public records disclosure
requirements.If the Lessee keeps and maintains public records upon completion
of the lease,the Lessee shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the Lessor upon
request from Lessor's custodian of records, in a format that is compatible with
the information technology systems of the Lessor.
(S) A request to inspect or copy public records relating to an agreement or
contract with Lessor must be made directly to the Lessor,but if the Lessor does
Page 34 of 49
not possess the requested records,the Lessor shall immediately notify the Lessee
of the request,and the Lessee must provide the records to the Lessor or allow the
records to be inspected or copied within a reasonable time.
If the Lessee does not comply with the Lessor's request for records,the Lessor may
enforce this agreement's maintenance of records and/or public access provisions,
notwithstanding Lessor's option and right to treat such non-compliance as a
material breach. Lessee's failure to provide public records to the Lessor or pursuant
to a valid public records request within a reasonable time maybe subject to penalties
under Section 119.1o, Florida Statutes.
The Lessee shall not transfer custody, release, alter,destroy or otherwise dispose of
any public records unless provided for in this provision or as otherwise provided by
law.
IF THE CONTRACTOR HAS'QUESTI.ONS.REGARDING THE
APPLICATION OF CHAPTER lig, FLORIDA STATUTES,TO;
THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC
RECORDS.RELATING TO THIS.CONTRACT,.CONTACT THE
LESSOR'S CUSTODIAN OF PUBLIC RECORDS, BRIAN
BRADLEY AT PHONE#.305-292 3470, BRADL-EY
BRIANC&MONROECOUNTY-FL.GOV,.MONROE COUNTY
ATTORNEY'S OFFICE lii1 12TH Street, SUITE 408, KEY
WEST, FL 33040.
Section 20.08:Liability Continued;.Lessor Liability.All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment.In addition,the Lessor's liability under this Lease,unless specifically dealt
with differently herein, shall be at all times limited to the Lessor's interest in the Demised
Premises.
Section 20.09 Captions. The captions used in this Lease are for convenience of
reference only and in no way define,limit or describe the scope or intent of or in any way
affect this Lease.
Section 20.10 Table of.Contents. The index preceding this Lease under the same
cover is for the purpose of the convenience of reference only and is not to be deemed or
construed in any way as part of this Lease, nor as supplemental thereto or amendatory
thereof.
Section 20.11 Governing Law3 Venue. This Agreement shall be construed under the
laws of the State of Florida, and the venue for any legal proceeding to enforce or determine
the terms and conditions of this Lease shall be in Circuit Court for the 16th Judicial Circuit,
Page 35 of 49
Monroe County, Florida. This lease, and any agreement made pursuant to this lease, shall
not be subject to arbitration. Mediation proceedings initiated and conducted pursuant to
this lease shall be in accordance with the Florida Rules of Civil Procedure and usual and
customary procedures required by the circuit court of Monroe County, Florida.
Section 20.12 Holding Over.Any holding over after the expiration of the Term of this
Lease,with consent of Lessor,shall be construed to be a tenancy from month to month,at
twice the monthly Rent as required to be paid by Lessee for the period immediately prior to
the expiration of the Term hereof, and shall otherwise be on the terms and conditions
herein specified, so far as applicable.
Section 20.13 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 20.14 Severability/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.The Lessor and Lessee agree to reform the lease to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
Section 20.15 Force Majeure. If either party shall be delayed,hindered or prevented
from the performance of any act required hereunder by reason of strikes, lockouts, labor
trouble,inability to procure material,failure of power,riots,insurrection,severe tropical or
other severe weather events, war or other reasons of like nature not the fault of the party
delayed, in performing work or doing acts required under this Lease, the period for the
performance of any such act shall be extended for a reasonable period.Economic hardship
or economic conditions shall not be considered a basis for such extension.
Section 20.16.Lessor/Lessee Relationship,Non-Reliance by Third Parties.This Lease
creates a lessor/lessee relationship, and no other relationship, between the parties. This
Lease is for the sole benefit of the parties hereto and, except for assignments or Subleases
permitted hereunder and to the limited extent thereof, no other person or entity shall be a
third party beneficiary hereunder. Except as expressly provided under this Lease or under
the affordable Workforce Housing 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.
Page 36 of 49
Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive gas
that,when it has accumulated in a building in sufficient quantities,may pose health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings.Additional information regarding radon and radon
testing may be obtained from your county health unit. Lessor shall not be responsible for
radon testing for any persons purchasing,leasing or occupying any portion of the Demised
Premises,and all owners,Lessees and Sublessees shall hold Lessor harmless and indemnify
Lessor for damages or claims related thereto and release Lessor from same.
Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in
unincorporated areas of the county as well as in incorporated areas of the 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 occupying any portion of the Demised Premises, and all owners,
Lessees and Sublessees shall hold Lessor harmless and indemnify Lessor for damages or
claims related thereto and release Lessor from same.
Section 20.19 (B) Lead-Based Paint Disclosure. Lessee acknowledges receipt and
signing of the attached form LBPR-1 8/96 relating to the possibility of lead-based paint in
houses constructed before 1978 and a copy of the risks associated therewith and a copy of
the EPA Protect Your Family In The Home. Lessee will abide by notice requirements
relating to lead-based paint for all sub-lessees.
Section 20.20 Subsequent Changes in_Law::or Regulation. Where a change can
reasonably be applied to benefit, enhance or support Lessor's affordable Workforce
Housing goals,objectives and policies,Lessor shall have the right to claim the benefit from
any subsequent change to any applicable state or federal law or regulation that might in any
way affect this Lease, the Workforce Housing Restriction(s), any Related Agreements or
their respective application and enforceability, without limitation. In such instance, this
Lease shall be construed or, where necessary, may be reformed to give effect to this
provision.
Section 2.0.21 Claims for Federal°and/or'StateAid.Lessor and Lessee agree that each
shall be,and is,empowered to apply for,seek,and obtain federal and state funds to further
the purpose of this lease; provided that all applications, requests, grant proposals, and
funding solicitations shall be approved by each side prior to submission.
Section 2022 Government Purpose. Lessor, through this Lease and the affordable
Workforce Restriction(s), 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. Notwithstanding the provisions of Section
Page 37 of 49
768.28, Florida Statutes, the participation of the Lessee and the Lessor in this agreement
and the acquisition of any insurance coverage whatsoever shall not be deemed a waiver of
immunity to the extent of such coverage (liability coverage or otherwise), nor shall any
contract entered into by the Lessor be required to contain any provision for waiver.All of
the privileges and immunities from liability, exemptions from laws, ordinances,and rules
and pensions and relief,disability,workers'compensation,and other benefits which apply
to the activity of officers, agents, or employees of any public agents or employees of the
Lessor or Lessee, when performing their respective functions under this lease within the
territorial limits of the county shall apply to the same degree and extent to the performance
of such functions and duties of such officers, agents,volunteers, or employees outside the
territorial limits of the county.No covenant or agreement contained herein shall be deemed
to be a covenant or agreement of any member, officer, agent or employee of Lessor or
Lessee in his or her individual personal capacity, and no such member, officer, agent or
employee of Lessor or Lessee shall be liable personally under this lease or be subject to any
personal liability or accountability by reason of the execution of this agreement.
Section 20.2R Remedies.The parties agree that any remedy available for any breach
under this Lease shall be cumulatively or selectively available at Lessor's complete
discretion, with any election to avail itself or proceed under any particular remedial
mechanism in no way to be construed as a waiver or relinquishment of Lessor's right to
proceed under any other mechanism at any time or in any particular sequence.
Section'20.24 Supplemental Administrative Enforcement.Lessor,or its appropriate
agency,may establish under the Workforce Housing Restriction(s),as amended from time
to time, during the Term of this Lease, such rules, procedures, administrative forms of
monitoring, property and/or tenancy management, proceedings, and such evidentiary
standards, as deemed reasonable within Lessor's prerogative,to implement enforcement of
the terms of this Lease and similar leases and the Workforce Housing Restriction(s). Such
forums may include but in no way be limited to use of Code Enforcement procedures
pursuant to Chapter 162, Florida Statutes, to determine, for and only by way of one
example, and not as any limitation, the facts and legal effect of an allegedly unauthorized
"offer to rent," or, for another example, an unauthorized"occupancy." However, nothing
herein shall be deemed to limit Lessor 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 20.2s Exceptions.to Lease/Rental Prohibition. The Workforce Housing
Unit(s) are to be developed as a dwelling unit for qualified rental and qualified rental-
occupancy for affordable Workforce Housing. Transient use, vacation rental use, owner-
occupancy, and any other form of use or occupancy other than affordable Workforce
Housing is hereby expressly prohibited absent express written authorization and consent by
Lessor. Lessor or its designee, in its sole discretion, shall have the right to adopt as part of
future affordable Workforce Housing Restriction(s) provisions to allow Sublessees the
limited privilege to rent or lease their Workforce Housing Unit 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
Page 38 of 49
certain limited rental provisions maybe 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) A documented illness that legitimately requires a Sublessee to be hospitalized
for an extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty(3o) days.
Section 20.26 Drafting ,of Lease. The parties acknowledge that they jointly
participated in the drafting of this Lease with the benefit of counsel,or had the opportunity
to receive such benefit of counsel, and that no term or provision of this Lease shall be
construed in favor of or against either party based solely on the drafting of this Lease.
Section-2o.27 Lessor's_Duty to Cooperate.Where required under this Lease,Lessor
shall, to ensure the implementation of the public affordability purpose furthered by this
Lease, cooperate with reasonable requests of Initial Lessee, Sublessees, mortgagees, title
insurers,closing agents,government agencies and the like regarding any relevant terms and
conditions contained herein.
Section 20.28 Execution in Counterparts.This lease may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together
shall constitute one and the same instrument and any of the parties hereto may execute this
lease by signing any such counterpart.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their
hands and seals, as of the day and year above written.
FOR LESSOR BOARD OF COUNTY
COMMIS ONE OF MONROE COUNTY, FLORIDA 3 =
r
By: ► (11
Ma s r N a
Date: 17, 4;:u
4O
(SEAL)
ATTEST: KEVIN MADOK, CLERK
ICI MONROE COUNTY ATTORNEY
By: APPROVED AS TO FORM
Deputy Clerk
Monroe County Attorney PETER MORRIS
Approved as to Form: ASSISTANT CO. ATTORNEY
By: . Date: C � q
Page 39 of 49
FOR LESSEE:
Monroe my Housing Authority
By: '��
nuel Castillo, Executive Director
T, 01 /e�-re C Go, S�
WITNESSES:
ib./ n c,-e,s /LrroL o
Witness No. 1 (Print Name
Witness No. 1 (Signatur
q0111,0t S A-ex I,t:in
Witness o int Name)
Witness No. 2 gnature)
STATE OF VVOCiaq
COUNTY OF Mohcoe. •
The foregoing instrument, Lease between Board of County Commissioners of
Monroe County, Florida, and the Monroe County Housing Authority,was acknowledged
before me this 1 day of Z-A%Y ,2019,by Manuel Castillo,as Executive
Director of the Monroe County Housing Authority, who is personally known to me or
produced as proof of identification and did take an
oath.
--
: YURIMA MORALES
�/ IT .., :, MY COMMISSION 8 GO 293084
1 y( lCcO. �OCC)l teS = .� •,:�i EXPIRES:May18,2023
Notary Public (Print Name and Notary No.) _: . . • :• — • •
testkig%
Notary Public (Signature) •
Page 4o of 49
EXHIBIT"A"
•
LEGAL DESCRIPTION
31 S. Conch Avenue, Conch Key (bearing Property Identification Number 100385780-
000400):
The West 70 feet of Lot 14,CONCH KEY SUBDIVISION,according to the Plat thereof, recorded in Plat
Book 2,Page 130,of the Public Records of Monroe County,Florida.Said parcel of land being more
particularly described as follows,to wit:
At the Point of Beginning commence at a point on the North Right-of-Way line of South Conch Avenue and
the Southwest corner of Lot 14, Conch Key Subdivision, according to the Plat thereof as recorded in Plat
Book 2, Page 130, of the Public Records of Monroe County, Florida; thence run in a Northerly direction
along the West boundary line of Lot 14 for a distance of 70 feet to the Northwest corner of said Lot 14; thence
proceed at a right angle along the Northern lot line of Lot 14 for a distance of 70 feet to a point; thence at a
right angle and running parallel with the East lot line of Lot 14, run a distance of 70 feet to a point on the
South lot line of Lot 14, and on the North Right-of-way line of South Conch Avenue said point being 70 feet
from the Point of Beginning; thence at a right angle proceed in a Westerly direction along the South lot line of
Lot 14 a distance of 70 feet back to the Point of Beginning.
The property located on Atlantic Boulevard, Key Largo (bearing Property Identification
Number 00453440-001100):
A parcel of lattud: ,Xy ug iri Tract 'oE of poa.. L.A&GO, a subdivision in section 33,
Township. 01. Razge .39 East on.Xey Largo, eccordiug to the. Plat thereof, as recorded
in Plat Book 5, at Page 3, of the Public Recorda of Maroc County, Florida, betag
more particularly described as follotas t.
commence at. Wm point of interaction of the Northeaaterty prolongation of t be
Northusetet:ly Right of Way tine of Homestead Avenue vita the Northeasterly fight
of Way Line of Atlantic lou1everd; thence run Northeasterly along said prolongation
for 48.27 feet to the point :of intersection with a line parallel to and 218.27 feet
Northeasterly of, ea .metered,:at right tingles to the Said; Aorthea of erly Right of Wa;
line. of Atlantic Ban e`ard; thence deflect 90 degrees right and run Southeasterly
along said parallel line IPA the Southveeterly line of Caste Development Corp. for
50.00 feet to the Point.of Beginning of the herein described parcel; from said Point
of Beg ' ttt''g• main* Southeasterly along' the aforementioned course for 200.00 fent
to a point intersecting the Northwesterly Right of Way line of St. Croix ?lace;
thence deflect 90 degrees right and: run Southwastartir along said )iorthaesterly flight
of Wey line for 24.27 feet; thence deflect 90 degrees right and run Northwesterly
along the ,Northeesterly line of Atlantic Baulavard tzor 2O0.tin fact to i1 point on the
Southeasterly Right ,of. Way line of ,homestead Avenue; thence deflect 90 degrees right
and run Northeasterly' alone Raid prolongation for 228.27 feet to the Point of
Beginning.
31535 Avenue C, Big Pine Key(bearing Property Identification Number o0302670-
000000 and 00302680-000000):
Block 22,Lots 1,2,3, and 4, Sands Subdivision, according to the Plat thereof as recorded in
Plat Book 1, Page 65, of the Official Records of Monroe County, Florida.
Page 41 of 49
2 N. Conch Avenue, Conch Key(bearing Property Identification Number 00385780-
000000):
All of Lot 13,the Easterly 30 feet of Lot 14,the Easterly 39 feet of Lot 30 and All of Lot 31 of CONCH KEY,being a
combination of the following two Parcels of Land: A Part of Lots 13 and 30 and All of Lot 31 of CONCH KEY, as
recorded in Plat Book 2, Page 130, of the Public Records of Monroe County, Florida, and being more particularly
described by metes and bounds as follows:Commencing at the Northeast corner of Lot 31,said corner to be known as
the Point of Beginning of the Tract of Land hereinafter described, bear North 66° 45' West, along the Southerly
Right-of-Way line of North Conch Avenue,131.95 feet;thence bear South 23°15' West,70 feet; thence bear North 66°
45' West, 39 feet; thence bear South 23° 15' West, 70 feet to the Northeasterly Right-of-Way line of South Conch
Avenue; thence bear South 66° 45' East,36.82 feet to the Northerly Right-ofWay line of U.S.Highway No. 1; thence
bear North 69° 05' East, along the Northerly Right-of-Way line of U.S. Highway No. 1, 190.93 feet; thence in a
Northerly direction, 7.48 feet, back to the Point of BeginningANDA Parcel of Land in a Part of Lots 13 and 14 of
CONCH KEY, as recorded in Plat Book 2, Page 130, of the Public records of Monroe County, Florida, and being
more particularly described by metes and bounds as follows: Commencing at the Southwest corner of Lot 14, bear
South 66° 45' East, along the Northerly Right-ofWay line of South Conch Avenue,70 feet to the Point of Beginning of
the Parcel of Land hereinafter described; from said Point of Beginning, bear North 23' 15' East,70 feet; thence bear
South 66°45' East,52 feet; thence bear South 23° 15' West,70 feet to the Northerly Right-of-Way line of South Conch
Avenue; thence bear North 66°45' West,along the Northerly Right-of-Way line of South Couch Avenue,52 feet,back
to the Point of Beginning.
Page 42 of 49
COMPOSITE EXHIBIT"B"
1. MANAGEMENT AGREEMENT:
A. Introduction: The Lessor and Lessee to this lease mutually agree that the
Property shall be developed, used, and occupied so as to ensure affordability in
perpetuity in connection with the Property and the dwelling units to be
constructed therein as set forth in this lease.
The Lessor and Lessee to this lease mutually agree that housing and occupancy
preference shall be granted to qualified full-time employees of Lessor, and to
qualified full-time employees of Lessee. "Qualified," as used herein, means those
employees of Lessor and Lessee who satisfy all requirements of the affordable
Workforce Housing Restriction applicable to a unit that is available for use and
occupancy, and means those employees of Lessor and Lessee who satisfy all
requirements of the affordable Workforce Housing Restriction applicable to a
unit that is available for use and occupancy. The legal effectiveness and
enforceability of such preference is contingent upon approval of the Florida
Department of Economic Opportunity, Florida Housing Finance Corporation,
and United States Department of Housing and Urban Development.
B. Program Description: The Monroe County Board of County Commissioners
("Lessor") continues to examine the affordable workforce housing crisis within
the county and seeks to determine best practice solutions to mitigate this
situation. The Monroe County Employee Rental Housing Program enacted under
this lease is one such solution.
A central concern of the Program is the enormous financial pressure on the
Lesssor's and on the Lessee's employees in connection with the affordability of
housing opportunities near their jobs. This program, as applied under this lease,
grants employee preference to qualified full-time employees of the Lessor and to
qualified full-time employees of the Lessee.
C. Management and Administration of the Waiting List and Lease
Housing Preferences:
Under Monroe County Land Development Code Section 139-1(0(8), the Monroe
County Planning Director may authorize"[t]he county housing authority" and
"other public entities established to provide affordable housing"to administer the
eligibility, qualification, re-qualification, and compliance requirements otherwise
ordinarily administered by the County's Planning Department pursuant to a
written agreement. The Board of County Commissioners of Monroe County's
approval of this lease has approved this lease in conjunction with the Planning
Director's approval for Lessee to administer the eligibility, qualification, re-
qualification, and compliance requirements under this lease, as authorized under
Monroe County Land Development Code Section 139-(f)(8).
Page 43 of 49
As such, Lessee agrees that it will comply with all qualification, re-qualification,
and compliance requirements applicable under this lease and as applicable under
the Monroe County Code(s). Lessee shall provide an annual report to the Monroe
County Planning&Environmental Resources Department showing all income
qualifications, all income re-qualifications, and rents. If any other documents,
records, or information is required by Lessor, Lessee shall provide it to Lessor.
Lessee may not authorize a third-party to assume or undertake this delegation of
authority without Lessor's prior express written approval. All records held by
Lessee and Lessee's authorized agents may be considered public records under
Chapter 119, Florida Statutes, and it shall be Lessee's sole responsibility to
maintain and abide by all requirements applicable to proper maintenance and
disclosure of such records under Chapter 119, Florida Statutes.
It shall be the Lessee's policy that each applicant shall be assigned an appropriate
place on a waiting list.Applicants shall be listed in a sequence based upon date
and time a complete, legally sufficient application is received, the size and type of
unit the applicant has requested, and factors of preference or priority. In filling
an actual or anticipated vacancy, the Lessee shall offer the dwelling unit to an
applicant in the appropriate sequence, with the goal of accomplishing complete
occupancy of all units by qualified full-time employees of Lessor and Lessee.
By maintaining an accurate waiting list, the Lessee will be able to perform the
activities which ensure that an adequate pool of qualified applicants will be
available to fill unit vacancies in a timely manner. Based upon the Lessee's
turnover and the availability of appropriately-sized units, groups of families will
be selected from the waiting list to form a final eligibility pool. Selection from the
pool will be based upon completion of verification of all documents and
information provided.
The Lessee shall administer its waiting list as required by 24 C.F.R. Part 5, Part
945 and 960, Subparts A and B. The waiting list will be maintained in accordance
with the following guidelines:
The application will be a permanent file.
All applicants in the pool will be maintained in order of this lease's prioritization
of housing applicants who are qualified full-time employees of Lessor and Lessee.
Applications equal in preference will be maintained by date and time sequence.
All applicants must meet all applicable eligibility requirements as established by
law.
The Lessee, at its discretion, may restrict application, suspend application intake,
and close a waiting list in whole or in part, and will publicly announce its decision
to do so by posting such decision in all of its offices. Such decision to close the
waiting list shall be based upon the number of applications available for a
particular size and type of unit, and the ability of the Lessee to house an applicant
in an appropriate unit within a reasonable period of time.
Page 44 of 49
When the Lessee reopens the waiting list, it will advertise this in a newspaper of
general paid circulation in Monroe County. The notice will be made in accessible
format if requested and will contain:
The dates,times, and locations where families may apply.
The applicable program(s)for which applications will be taken.
A brief description of the applicable program(s).
A statement that Section 8 participants must submit a separate application
if they wish to apply for available housing.
Limitations on who may be eligible to apply.
Eligibility requirements.
Availability of local preferences.
During the period in which the waiting list is closed, the Lessee will not maintain
a list of individuals who wish to be notified of when the waiting list is re-opened.
The open period shall be long enough to achieve a waiting list adequate to cover
projected turnover over the next 24 months. When the period for accepting
applications is over, the Lessee will add to the new applicants to the list by:
Unit size, this lease's stated preference for qualified full-time employees of
Lessor and Lessee, and the date and time of application receipt.
When applicants consist of two families living together (for example, such as a
mother and father, and a daughter with her own husband and children), and they
apply as one family unit,they will be considered as one family unit.
A preference does not guarantee admission to the program/approval of a housing
application. Preferences are used to establish the order of placement on the
waiting list. Every applicant must meet all of the Lessee's Selection Criteria as
defined in this policy pursuant to the requirements of this lease permitted by law.
Applicants who reach the top of the waiting list will be contacted by the Lessee to
verify their preference and, if verified, the Lessee will complete the application for
occupancy. Applicants must complete the application for occupancy and continue
through the application processing and may not retain their place on the waiting
list if they refuse to complete their processing when contacted by the Lessee.
Among applicants with equal preference status, the waiting list will be organized
by date and time.
The maximum possible numerical point total for an application is ioo.
Priority preference pursuant to this lease is provided to eligible employees of
Lessor and Lessee on the waiting list.A properly noticed public meeting was held
before this lease was adopted.
The following preference is used:
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Residency/Lessor and Lessee Employee Preference: For applicants who
are current full-time employees of Lessor and Lessee who work in Monroe
County and satisfy the Workforce Housing Restriction applicable to a given unit.
In order to verify that an applicant so satisfies these given requirements, the
Lessee will require a minimum of one (1) of the following documents: Verification
in the form of an employment record(s) provided by the Monroe County Human
Resources Department or Lessee's equivalent human resources office, other
employer or agency records, driver's licenses, voter's registration records, credit
reports, statement(s) from household with whom the family is residing, rent
receipts, leases, school records, utility bills, etc.
Preference Point System:
Local Preference Point Description. Point Value
Full-Time Employee of Lessor Full-Time Monroe County 100
BOCC Employee
Full-Time Employee of Lessee Full-Time Monroe County 100
Housing Authority
Employee
Before applying its preference system, the Lessee will first match the
characteristics of the available unit to the applicant(s) available on the waiting
list. By matching unit and family characteristics and qualifications for a.foregoing
preference, it is possible that families who are lower on the waiting list may
receive an offer of housing ahead of families with an earlier date and time of
application.
The Lessee will verify all preference claims at the time they are made. The Lessee
will re-verify a preference claim, if the lessee feels the applicant's or family's
circumstances have changed, at the time of selection from the waiting list.
If the preference verification indicates that an applicant does not qualify for the
preference, the applicant will be returned to the waiting list and ranked without
that preference and given an opportunity for a review.
Changes in an applicant's circumstances while on the waiting list may affect the
applicant's or his/her family's entitlement to a preference. Applicants are
required to notify the Lessee in writing when their circumstances change. When
an applicant claims a preference, he or she will be placed on the waiting list in the
proper order of their newly claimed preference.
If the Lessee denies a preference, the applicant will be placed on the waiting list
without the benefit of the preference. The Lessee will notify an applicant in
writing of the reasons why the preference was denied and offer the applicant an
opportunity for an informal meeting. The applicant will have 10 business days to,
in writing, request that meeting. If the applicant does not request a meeting, and
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if the preference denial is sustained/upheld as a result of such meeting, the
applicant will be placed on the waiting list without benefit of the preference.
If the applicant falsifies documents or makes false statements in order to qualify
for any preference, they will be removed from the waiting list with notification to
the applicant and/or the family on the application.
The waiting list will be purged at least annually by a mailing to all applicants to
ensure that the waiting list is current and accurate. The mailing will make a
request for current and/or updated information and confirmation of the
applicant's continued interest. If the applicant fails to respond to such mailing
within 14 calendar days, he/she will be removed from the waiting list. If the 14th
day falls on a Saturday, Sunday, or official designated federal or state holiday,the
14th day shall be considered the nearest next business day. If a letter is returned
by the post office without a forwarding address, the applicant will be removed
from the list without further notice and the envelope and letter will be
maintained in the file. If a letter is returned with a forwarding address,it will be
re-mailed to the address indicated.
When an applicant rejects the final unit offer by the Lessee, the Lessee will:
Remove the applicant's name from the waiting list.
Remove from the waiting list means: The applicant must re-apply.
Applicants must accept a unit offer within in business days of the date the offer is
made. Offers made over the telephone will be confirmed by letter. If unable to
contact the applicant by telephone, the Lessee will send a certified letter.
Lessee must provide each applicant(s) approved to occupy a Workforce Housing
Unit(s) with a Letter of Acknowledgment conforming to Exhibit"C."to this lease,
and each applicant(s) must return said Letter to Lessee properly executed and
notarized.
•
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EXHIBIT "C"
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 Workforce Housing Unit that I am renting. I hereby acknowledge the
following:
• That I meet the requirements set forth in the Lease and Workforce
Housing Restrictions for this property to rent an affordable Workforce
Housing Unit. I understand that the unit I am renting is being rented to
me at a price restricted below fair market value for my, future similarly
situated persons and Monroe County's benefits.
• That the Workforce Housing Unit that I am renting is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the
State of Florida, and
(hereinafter"Lease").
• That my legal counsel, , has explained
to me the terms and conditions of the Lease, including without limitation
the meaning of the terms "Workforce Housing 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
without it.
• That I understand the terms of the Lease and Workforce Housing
Restrictions and how the terms and conditions set forth therein will affect
my rights, now and in the future.
o That I agree to abide by the Lease and Workforce Housing Restrictions, as
defined in the Lease, and I understand and agree for myself and my
successors in interest that Monroe County and State of Florida state
agencies may change some of the Workforce Housing Restrictions over the
99-year term of the Lease and that I will be expected to abide by any such
changes.
a That I understand and agree that one of the goals of the Lease is to keep
the Workforce Housing unit affordable and exclusively used for said
purposes and I support this goal.
• I must comply with the requirements set forth in the Lease.
• I am prohibited from severing the improvements from the real property.
• That my family and I must occupy the Workforce Housing Unit and that it
cannot be rented to third parties without the express written approval of
the Lessor.
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That I have reviewed the terms of the Lease and Workforce Housing
Restrictions, and that I consider said terms fair and necessary to preserve
the Workforce Housing Unit.
Signatory(Printed Name) Signatory (Printed Name)
Signatory(Signature) Signatory(Signature)
STATE OF
COUNTY OF
The foregoing instrument,Letter of Acknowledgment,was attested before me this-
day of _, 20 , by and by
, as who is/are personally known to me or produced
as proof of identification and did take an oath.
Notary Public(Print Name and Notary No.) Notary Public Seal
Notary Public(Signature)
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