Item G02BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 19, 2013 Division: Growth Manaizement
Bulk Item: Yes x No _ Department:
Staff Contact Person/Phone #: Susan Grimslev
Ext. 2500
AGENDA ITEM WORDING: Approval of First Amendment to Occupancy Agreement and Ground
Lease with Habitat for Humanity of the Middle Keys Community Land Trust, Inc. for property at 1005-
7 75t' Street in Marathon, RE# 00343090-000000, to provide for payment to County of $11,460, which
the County paid for wastewater assessments on the duplex property, in annual payments of $1,146.00
for ten years.
ITEM BACKGROUND: Monroe County and Habitat for Humanity of the Middle Keys entered into
a 99 year lease for property at 1005-7 751h St. on March 18, 2009 to provide affordable housing. The
County entered into an agreement with the City of Marathon on November 20, 2012, to pay wastewater
connection fees for all property owned by Monroe County within the city. The assessment for this
property in the amount of $11,460.00 was included in the agreement and the payment to Marathon.
Pursuant to the Lease, the Lessee is responsible for assessments. This amendment will allow Habitat
and the individual sub -lessee (occupant -owner) to pay the assessment amount back to Monroe County
over a ten year period as additional rent in the amount of $1,146.00, which is owed pursuant to Section
6.01 of the lease, commencing December 1, 2013.
PREVIOUS RELEVANT BOCC ACTION:
February 18, 2009 BOCC authorized acceptance of title from Monroe County Land Authority
(Item H-1)
August 20, 2008 BOCC approved Habitat for Humanity of the Middle Keys as an approved Housing
Development Service provider (Item M-6)
March 18, 2009 BOCC approved 99 year lease with Habitat of the Middle Keys Community Land
Trust, Inc. for property at 1005-7 75th St.
Nov. 20, 2012 BOCC approved Wastewater Connection Agreement with the City of Marathon
in the amount of $394,856.00.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval
TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes No _
COST TO COUNTY: n/a SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty x OMB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required
DISPOSITION: AGENDA ITEM #
Revised 1 /09
PREPARED BY AND RETURN TO:
SUSAN GRIMSLEY
MONROE COUNTY
2798 OVERSEAS HIGHWAY
MARATHON, FL. 33052
FIRST AMENDMENT TO OCCUPANCY AGREEMENT AND GROUND LEASE
THIS FIRST AMENDMENT TO OCCUPANCY AGREEMENT AND GROUND LEASE
(First Amendment), dated this day of , 2013, is made by and between
Monroe County, a political subdivision of the State of Florida (Lessor) and Habitat for Humanity
of the Middle Keys Community Land Trust, Inc., a Florida non-profit corporation (Lessee).
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain 99-year Lease (Lease) dated March 18,
2009, for the property legally described as Lot 2, Block 2, Paraiso Estates, according to the Plat
thereof as recorded in Plat Book 5, page 2 of the Public Records of Monroe County, RE#
00343090-000000 known as 1005-7 75h Street, Marathon, Florida for the development of two
deed restricted affordable housing dwelling units, said Lease being recorded at Monroe County
Public Records at Official Records Book 2408 at Page 1375; and
WHEREAS, Monroe County and the City of Marathon entered into a Wastewater Connection
Agreement dated November 20, 2012, wherein the County paid the assessments for the
wastewater connection fees for all property owned by Monroe County within the City of
Marathon including the Leased Property, for which the assessment was $11,460.00 for the two
dwelling units; and
WHEREAS, Section 6.01 of the Lease requires the Lessee to pay all assessments, which
obligates the Lessee to pay Monroe County the amount of $11,460.00 as additional rent as set
forth in Section 6.01;
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the undersigned parties agree as follows:
1. The recitals contained herein are true and correct and incorporated herein by reference.
2. The Lease is presently valid and in full force and effect.
3. There shall be additional rent in the amount of $11,460.00 to pay the assessment for the
wastewater connection fee which was paid by Monroe County to the City of Marathon. This
amount shall be paid at the rate of $1,146.00 for ten years commencing December 1, 2013.
Payment shall be made to Director, Monroe County Budget and Finance, 1100 Simonton St., Key
West, FL 33040.
4. Except as expressly modified by this First Amendment, all terms and conditions of the Lease
remain in full force and effect, binding upon the parties.
H for H 1" amendment
Lot 2 block 2 75* A
LESSOR:
MONROE COUNTY BOARD OF
COUNTY COMNIISSIONERS (SEAL)
ATTEST: Amy Heavilin, Clerk
Mayor George Neugent Deputy Clerk
MONROE COUNTY ATTORNEY
APP VED AS TO FO M
LESSEE: Date.
HABITAT FOR HUMANITY OF THE MIDDLE KEYS, INC.
n
Witness:
President f
?AifL2�r �,•K 1C �f�uaf�L�
Print Name
Print Name rPg� �Cc��.re5
(2) qnwakka.
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
IV
E cutive Director
Print Name �/�•eiJT "'� ��° I ` uJ
Be it known, that on the day of 4/09 2013, before me, a Notary Public in and
for the State of Florida, County of Monroe duly commissioned and sworn, personally came and
appeared _:Em F O 6et4 President, and o w✓
Executive Director, of Habitat for Humanity of the Middle Keys, Inc., to me person ly known or
who provided as identification. In testimony whereof, I have
hereunto subscribed my name and affixed my seal of office the day and year last above written.
E::-
LUPE MARZOA
c - State of Florida
xpires Nov 29. 2015on #E EE 130710
H for H 1° amendment
Lot 2 block 2 75ie st
MONROE COUNTY PUBLIC WORKS
1100 Simonton St., Rm. 2-231
Key West, FL 33040
Phone 305.292.4560 Fax 305.292.4558
Bill To:
Habitat for Humanity
DATE: 1/11/2013
INVOICE #: 1112013
FOR: Marathon WW
connection fees
To reimburse Monroe County for payments made to City of Marathon
for wastewater connection fees as follows:
8030 Bonito Drive, Marathon FL (Parcel #00330210-000000)
1005 W. 75th Street Ocean, Marathon, FL (Parcel #00343090-000000)
1007 W. 75th Street Ocean, Marathon, FL (Parcel #00343090-000000)
(See attached agreement and check)
TOTAL
Please make check payable to MONROE COUNTY BOCC
and remit to address listed above
5,730.00
5,730.00
5,730.00
WASTEWATER CONNECTION AGREEMENT
'mIS AGREEMENT made and entered tllis20th day of November, 2012 by and
lxtween the City of Marathon, Florida ("City"), a Florida municipal corporation, and Monroe
County, Board Of County Commissioners ("Owner or Lessee"), a political subdivision of the
State of Florida, whose address is 1 100 Simonton Street, Key West, Florida 33040.
WI'I'NESSETH
WHEREAS, the City owns, operates, and manages a wastewater utility; and
WHEREAS, the City has adopted a set of policies and procedures to enforce mandatory
wastewater connections in accordance with Chapter 99-395, haws of Florida and Chapter 34 of
the Marathon Code; and
WHEREAS, on or about August 10, 2010, the City has sent the statutorily required
notice informing all affected properties that the City's wastewater system is available and that
connection is required within 360 days, and
WHEREAS, Owner or Lessee desires to connect to the City's wastewater system and
has elected to finance the costs of connection as a charge as delineated in paragraph 3(B) paid
directly to the City of Marathon.
NOW, THEREFORE, in consideration of the covenants and conditions set forth herein,
the parties hereto agree as follows:
1. RECORD OWNER. Owner or Lessee represents that he, she or it is a long term
lessee, or vested with fee simple title of record to the Properties with tax parcel identification
numbers as shown on Exhibit A.
The Properties listed in Exhibit A are the subject of this Agreement. Owner or
Lessee represents and warrants that it has full authority to enter into and sign this Agreement.
2. CONNECTION AND CONNECTION COSTS.
(A) Owner or Lessee agrees to undertake the decommissioning of Owner or Lessee's
septic systems (if applicable) and to connect to the City's wastewater system no later than 30
days after receiving the 30 day notice of availability. It' applicable, the decommissioning and
conversion will be in accordance with applicable State of Florida regulations,
(13) Owner or Lessee is responsible fir payment ol'applicablc City Connection Costs.
as provided below, and shall pay for monthly wastewater service pursuant to the City's duly
adopted rates.
(C) The total Connection Costs for the Properties described herein is $394,856.50,
and the payment options are outlined in Paragraph 3l3 of this Agreement.
Page I of 5
3. CONNEC"PION COSTS AND WASTEWATER UTILITY PROGRAM AS
ANNUAL CHARGR S.
(A) The Owner or Lessee hereby consents and requests to have the Connection Costs,
and its proportionate costs related to the administration and collection of the City's wastewater
utility program paid in accordance with the selected payment option in paragraph B. The costs
related to the administration and collection of the wastewater utility program, include, but are not
limited to: (1) costs related to the annual implementation and administration of the assessment
program; and (2) all other costs and expenses reasonably related to the wastewater utility
program (collectively the "Wastewater Utility Program Costs").
(I3) The Connection Costs, Connection Cost Overages, Wastewater Utility Program
Costs, plus accrued interest and penalties, if any, shall be collected as a charge paid by the
Owner or Lessee as indicated below until the total Connection Costs, Wastewater Utility
Program Costs, plus accrued interest and penalties, if any, have been paid to the City in full:
The total amount to be paid by the Owner or Lessee to the City shall be
$394,856,50. The Owner or Lessee agrees the payment of $394,856.50 shall be
made on or before December 31, 2012, or 6% annual interest will be applicable to
any unpaid balance. The starting date of any such interest is November 1, 2012,
(C) The Property will be specially benefited by the provision of wastewater service by
the City. The provision of wastewater collection and treatment services will enhance the
utilization and enjoyment of the Property by providing: (I) access to wastewater collection and
treatment facilities to the Owner or Lessee and occupants of property for the proper, safe, and
cost effective treatment and disposal of wastewater generated on such property, which improves
the utilization, marketability and development potential of said properties; (2) better, consistent
and environmentally compliant service to Owner or Lessee and occupants; (3) the enhancement
of environmentally responsible use and enjoyment of property, and (4) the protection of property
values and the health and safety of the Owner or Lessee and occupants of property.
(D) The special benefits to be provided to the Property by the provision of wastewater
services bear a logical relationship to the methods used to calculate and apportion the Connection
Costs. The wastewater utility program provides an equitable method of funding the Connection
Costs, which costs are fair and reasonable and in proportion to the special benefits received by
the Property.
(I?) Any changes to the use of the property after the date of the execution of
this Agreement requiring wastewater system capacity in excess of the IIDU's covered by this
Agreement will result in an adjustment in the wastewater system assessment against the
Property.
(F) Hie terms, conditions, and assumptions of the wastewater utility program, which
are contained in the Initial Assessment Resolution adopted by the City, including but not limited
to: (1) assignment of Connections and EDUs to the Property; (2) assignment of the Connection
Costs to the Property; (3) computation of the assessment amounts; and (4) reallocation of the
Page 2 of'5
annual assessments upon subdivision of the Property are fair and reasonable and in proportion to
the special benel its to be provided to the Property.
(G) The Oxviicr or Lessee recognizes that installments of the wastewater utility
program are an integral component of the utility service provided to the Owner or Lessee's
Property by the City.
(1-1) In the event ofnon-payment ol'the Connection Costs, Connection Cost Overages,
Wastewater Utility Program Costs, plus accrued interest and penalties, il'any, the City shall have
the right to collect any and all amounts due in accordance with the City's established utility
billing practices, including the cessation of all utility services, or to initiate a mandamus or other
appropriate action to compel payment. All costs, fees, and expenses, including reasonable
attorney's fees and title search expenses, related to any mandamus or other action as described
herein, shall be included in any judgment or decree rendered therein and the Owner or Lessee
shall be liable for all such costs incurred by the City and the same shall be collectible as a part of
or in addition to, the costs of the action.
(t) OWNER OR LESSEE'S OBLIGA'nON 1-0 PAY UNDER THIS AGREEMENT
IS CONTINGENT UPON AN ANNUAL APPROPRIATION BY 'rI-IE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS. OWNER OR LESSEE'S FAILURE 'I'O PAY
UNDER THIS AGREEMENT', HOWEVCR, SHALL ENTITLE THE CITY 'I'0
IMMEDIA'1TL•:LY CEASE; AI.1, WASTEWATER UTILITY SERVICES TO THE PROPERTY.
4. T,NTIRE AGREEMENT.
(A) 'this Agreement constitutes the entire agreement between the parties pertaining to
the subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the parties, whether oral or written, and there are
no warranties, representations or other agreements between the parties in connection with the
subject matter hereof, except as specif ically set forth herein.
(B) No amendment, supplement, modification, or waiver of this Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other provision of this
Agreement, whether or not similar, unless otherwise expressly provided.
5. BINDING EFncr. This Agreement shall be recorded in the Public Records of
Monroe County and, to the extent provided herein, shall be binding upon the City, Owner or
Lessee and the Owner or Lessee's successors in interest to the Property.
6. CONSTRUCTION.
(A) This Agreement shall not be construed against any party based on it being the
drafter of the Agreement. The parties agree that the parties herein played an equal part in
reciprocity in drafting this Agreement.
Page 3 of'5
(13) Capitalized terms contained herein shall have no more lorec or efi'cet than
uncapilalized terms.
(C) Captions and section headings in this Agreement are provided for convenience
only and shall not be deemed to explain, modii'y, amplify, or aid in the interpretation,
construction, or meaning of this Agreement.
(D) 'There are no third panty beneficiaries to this Agreement. This Agreement is
entered into exclusively for the benefit ofthe parties herein.
(I) It is understood by the parties that this Agreement is a unified Agreement and if
any provision hereof or application thereof to any person shall be held invalid or unenforceable,
such holding shall invalidate and render unenforceable all other provisions hereof.
7. APPLICABLE LAW. ']'his Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
8. .JURISDICTION AND VENUE. The parties to this Agreement expressly
consent to the jurisdiction of and agree to suit in any court of general jurisdiction in the State,
whether state, local or federal, and further agrees that venue shall lie in Monroe County, Florida.
9. RECORDING, This Agreement shall be recorded, at Owner or Lessee's expense
in the Public Records of Monroe County, Florida.
'PHIS AGREEMENT SHALL BE RECORDED IN THE PUBLIC RECORDS OF MONROE
COUNTY, FLORIDA. TIME: ACKNOWLEDGMENTS CONTAINED HEREIN SHALL RUN
WITH THE PROPERTY AND SHALL BE BINDING ON T14E OWNER OR LESSEE AND
ON ALL PERSONS (INCLUDING CORPORATIONS, ASSOCIATIONS, 'TRUSTS, AND
OTHER LEGAL ENTITIES) 'TAKING TITLE TO, OR POSSESSION OF ALL OR ANY
PART OF THE PROPER'T'Y, AND THEIR SUCCESSORS IN INTEREST. BY TAKING
'TITLE OR POSSESION SUCH PERSONS SHALL BE DEEMED TO HAVE: CONSENTED
AND AGREED TO TI IE PROVISIONS OF THIS AGRE1?MENT TO THE SAME EXTENT
AS I1" THEY HAD EXECUTED IT AND BY 'TAKING SUCH TITLE; OR POSSESION SUCH
PERSONS SHALL BE ES'TOPPE.D FROM CONTESTING, IN COURT OR OTHERWISE,
THE VALIDITY, LEGALITY, AND ENFORCEABILITY OF THIS AGREEMENT OR THE
COLLECTION COSTS.
Page 4 of 5
IN WITtiESS WIIEREOF, the panics ha�C CXCCuted this Agreement the date and )car first
above ►%i•itten.
CITY OF MARATHON, FLORIDA
woger I. 1 ierns(Wt. City Manager
ATTEST:
city ciei-k
APPROVED
AND RF.LIA
City A
RM AND LEGALITY FOR THE USE
FIE CITY OFMARATHON, FLORIDA ONLY:
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS:
Attest: Amy Reavilin, Clerk Ad Interim
Print Name: George R. Neugent By: D.C.
Its: PM yor/Chairman
11/20/2012
WITNESSES:
Print Name: MONROE COUNTY ATTORNEY le
APPROVED AS TO f17
SUZANNE A. H ON
couto TT, NEY
Print \ame:
I�- 4 xNt17 %� Page 5 of 5
CITY OF 11IAILIMION F
WAS Y}; WA'i'rai ;1SSI;tiShl r:N'1'
MONROE COUNTY
NO PARCH. DF:9CRI1'710N ADDRI•:tiS F.Dll5 CONNECTION AISIOUNT
I
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TOTAI. AMOUN I' DUF: s 394.856.50
1012612(112
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
HABITAT FOR HUMANITY OF THE MIDDLE KEYS COMMUNITY LAND
TRUST, INC.
"LESSEE"
DATED dAtc L If,
HfHMKCLT 75`" Street Page 1 of 43
Table of Contents
Article
T— t_ Page No.
I
Definitions
4
II
Demised Premises
7
III
Term
7
IV
Rent
g
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
17
XII
Assignment/Transfer
18
XIII
Condemnation
20
XIV
Construction
21
XV
Mortgage Financing
23
XVI
Default
28
XVII
Repair Obligations
30
XVIII
Additional Covenants of Lessee/Lessor
31
XIX
Representations, Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use
32
XX
Miscellaneous
33
Page 2 of 43
Exhibit A Legal Description 39
Exhibit B Property Depiction 40
Exhibit C Commencement Date Agreement 41
Exhibit D Letter of Acknowledgment 42
Page 3 of 43
OCCURANCYAGREEMENf AND GROUND LEASE
THIS Agreement and Lease made and entered into in Key West, Monroe County,
Florida, on this 11A day of M&UA , Zoo 9 by and between Monroe County
(referred to as the "Lessor" or "Owner") and Habitat for Humanity of the Middle Keys
Community Land Trust, Inc., a Florida non-profit corporation (referred to as the "Lessee"
or "Occupant").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at what is
now known as 1007 75TH Street, Marathon, Florida, legally described as Lot 2, Block 2,
Paraiso Estates, according to the Plat thereof as recorded in Plat BookS ,Page 2 of the
Public Records of Monroe County, RE#00343090-000000 ("Property");
WHEREAS, it is Lessor's intent that the Property be developed to provide affordable
housing for Monroe County;
WHEREAS, Lessee desires to develop the Property for sale or rental use two
affordable housing unit for qualified owner or tenant occupants;
WHEREAS, in order to preserve the affordability of the Units to be developed on the
Property, Lessor desires to lease the Property to Lessee for ninety-nine (99) years, subject to
the Affordable Restrictions as set forth and further defined herein; and
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein, and. in any contemporaneous Related Agreements between the parties,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
FDMT=
"Affordable Housing Unit" shall mean a residential housing unit that meets the
moderate or lesser income requirements set forth in applicable sections of the Monroe
County Land Development Regulations, as may be amended from time to time without
limitation of Lessor's complete legislative prerogatives, said restrictions to encumber the
Property for the term of the ninety-nine (99) year lease. The singular includes the plural
and the plural includes the singular when referenced herein.
"Affordable Restrictions" shall mean the affordable or employee housing regulations
as set forth in applicable sections of the Monroe County Land Development Regulations or
County Code, as hereinafter amended, except that in no event shall the Lessor materially
and adversely alter the obligations or rights of Lessee under this Lease or decrease the
lawfully permissible sales price or rental rate for an Affordable Housing Unit to less than
the specified sales price or rental rates for moderate income housing as set forth in the Land
Development Regulations in effect at the time of execution of this Lease where the effect
upon an owner/Sublessee/mortgagee would be to divest such person or entity of value upon
Page 4 of 43
which such person reasonably and fairly relied to their detriment. The substance of the
Affordable Restrictions may be freely amended in the Lessor's legislative discretion,
particularly with respect to administrative, monitoring and enforcement mechanisms, but
any such amendment shall not materially diminish the lawfully established and equitably
vested resale value or the reasonable alienability of "home -ownership" Affordable Housing
Units, or in the case of rental -only units or projects, shall not materially and adversely
diminish or interfere with the Lessee's suhstantive benefits conferred under this Lease or
any of its non -administrative terms. Moreover, Lessor may establish in its Affordable
Restrictions "means" or "assets" criteria that limit potential buyer or rental pools. Any
such amendment shall not increase Initial Lessee's responsibilities as set forth herein. It is
the intent and purpose and shall be the effect of this Lease and any Affordable Restrictions
to ensure that the affordability of Affordable Housing Units and dedicated real property
upon which they are located is maintained and enforced such that any administrative rule,
policy or interpretation thereof, made by Lessor or its designees relating to the maximum
total amount of consideration and cost permitted to be in any way involved in a purchase or
rental transaction (including but not limited to purchase price, lease assignment fees, rents
or any other compensation given or received in or "outside" of a related transaction) shall
never exceed the affordability criteria reasonably established by Monroe County for the
dwelling units involved. In every case, the construction and interpretation of terms,
conditions and restrictions imposed by this Lease and the Affordability Restrictions shall be
made in favor of ensuring that long term affordability benefits for the respective housing
resources inure to the benefit of Monroe County, its economy and its community character.
Lessor shall provide copies of current regulations upon execution of this Lease and
amendments to such regulations as they occur to Lessee so that Lessee may comply with
such restrictions.
"Commencement Date" shall mean the date when Initial Lessee receives a Certificate
of Occupancy for the first Affordable Housing Unit.
"Demised Premises" shall mean the property leased pursuant to this Lease for
development of the Affordable Housing Units. The Demised Premises is legally described
on attached Exhibit A. Demised Premises, where the context requires and the construction
is most appropriate, shall also mean portions of the Demised Premises and any
improvements erected thereon.
"Effective Date" shall mean the date this Lease is fully executed and delivered by all
parties and the date that the Lessee shall be entitled to begin to occupy the Demised
Premises for purposes of development and construction of the Project.
"Initial Lessee" means Habitat for Humanity of the Middle Keys Community Land
Trust, Inc.
"Lease" shall mean this lease for the creation of the Affordable Housing Units on the
Demised Premises, as may be amended from time to time by the parties. It is expressly
contemplated and intended by Lessor, as fee title holder to the Demised Premises, and
agreed to and accepted by Lessee, that any limitations, restrictions and/or other covenants
of any nature, whether established pursuant to this Lease or by the Affordable Restrictions,
Page 5 of 43
be given the full force and effect of enforceable covenants running with the land, equitable
servitudes and all other cognizable legal and equitable real property conventions so as to
ensure the overall public affordable housing purposes intended to be served, including
appropriate application of cumulative enforcement theories.
"Lease Year" shall mean the twelve (12) month period beginning on the
Commencement Date and each twelve (12) month period thereafter throughout the Term
of this Lease.
"Lessor" means Monroe County, or its assigns or designees. Lessor as used herein
and where the context requires, shall mean an agency or party designated by the Lessor, by
written notice to all parties, to administer or enforce some or any portion of the provisions
of this Lease or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns.
"Project" shall mean the required development of the Demised Premises, primarily
the required construction of Affordable Housing Units) as set forth in Article XIV, but also
including related infrastructure, securing of required development approvals and permits,
financing for the construction of the Affordable Housing Units, marketing/renting of the
Affordable Housing Units.
"Related Agreements" shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease and which
is recorded.
"Rent" shall mean any sum of money due to the Lessor under this Lease for any
reason. The term Rent as used herein, should not be misconstrued to preclude definition
and distinguishing of rent, rental rates and other such other terms as may be provided for in
Subleases and/or the Affordable Restrictions.
"Sale" and "Sell" as used herein shall be broadly and liberally construed so as to
encompass, where contextually appropriate, any ground subleasing, sale, grant, assignment
or other conveyance of an interest in any portion of the Demised Premises authorized
pursuant to this Lease, but excluding any rental of an Affordable Housing Unit (which may
be more particularly discussed herein or in the Affordable Restrictions) and any granting of
any security, mortgage, note or other interest of a form and type customarily used with
purchase money or home equity loans.
"Sublease" shall mean any combination of instruments that grant, convey or
otherwise transfer a possessory use and/or title interest to any portion of the Demised
Premises, including rental agreements with tenants or renters of an Affordable Housing
Unit (which may be more particularly discussed herein or in the Affordable Restrictions)
and any security, mortgage, note or other interest of a form and type customarily used with
purchase money or home equity loans. The title or exact nomenclature used to describe
such instruments may vary to suit particular circumstances and shall lie within Initial
Lessee's reasonable discretion and still remain within the meaning herein intended (e.g., a
`deed of improvements may in a given context be construed as an effective sublease for
purposes herein). It is intended that the term Sublease encompasses such instruments that
Page 6 of 43
effectuate qualified end -user, title, possession and/or use of Affordable Housing Units
developed on the Demised Premises.
"Sublessee" or "Owner" shall be broadly and liberally construed so as to mean an
individual Affordable Housing Unit owner or tenant who, as of the date such person
acquires or renews their interest(s) in the Affordable Housing Unit, qualifies for "Affordable
Housing" as set forth in the Monroe County Code and who is employed within Monroe
County at the time of their rental or purchase.
"Term" shall mean the Commencement Date, and continuing for ninety-nine (99)
years thereafter, plus any agreed upon extension of this Lease, and unless otherwise
permitted by Lessor, all Subleases and rights or interests granted thereunder shall
terminate at the end of the Term.
ARTICLE II
Demised Premises
Section 2.01Lessor'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 the "Initial Lessee" hereby leases from the Lessor, the
following described premises, situate, lying and being in Monroe County, Florida:
Lot 2, Block 2, Paraiso Estates, according to the Plat thereof as recorded in Plat Book 5,
Page 2 of the Public Records of Monroe County, RE#00343090-000000 ("Property");
Section 2.02 Conditions, The demise is likewise made subject to the following:
(a) Conditions, restrictions and limitations, if any, now appearing of
record;
(b) Zoning ordinances of the County of Monroe, State of Florida, and any
other applicable governmental body now existing or which may hereafter exist by reason of
any legal authority during the Term of this Lease; and
(c) The proper performance by the Lessee of all of the terms and
conditions contained in this Lease, the Affordable Restrictions and Related Agreements, if
any.
ARTICLE III
TV
Section 3.91 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
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Effective Date. Lessee shall have the right to occupy the Demised Premises as of the
Effective Date in order to allow Lessee to commence construction, as well as other activities
related to the development and construction of the Project. As herein set forth, the Term
will not commence until an Affordable Housing Unit is completed and a certificate of
occupancy has been issued for that Affordable Housing Unit, said date to be evidenced by
the Commencement Date Agreement that the parties will upon completion of construction
of the first Affordable Housing Unit execute in substantially the same form as that set forth
in Exhibit C hereto.
ARTICLE IV
Rent
Section 4.01 Annual Base Rent. Lessee covenants and agrees to pay to Lessor
promptly when due, without notice or demand, and without deduction or offset, Annual
Base Rent throughout the Term of this Lease beginning on the Commencement Date, in the
amount of Ten Dollars ($1o.00) per Lease Year or partial Lease Year. Lessee shall pay to
Landlord said Annual Base Rent on the first day of the second month of each Lease Year
throughout the term of this Lease.
Section 4.02. All amounts payable under Section 4.oi 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 (io%) percent of any
amount due from Lessee to Lessor which is not paid within ten (1o) days of the payment
due date for any sums due for Rent and within thirty (30) days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
Page 8 of 43
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge for dishonored checks
pursuant to 125.0105, Florida Statutes, and/or any other applicable law. In addition, Lessor
shall be reimbursed by Lessee for any costs incurred by Lessor as a result of a payment
instrument being dishonored (e.g., legal fees).
ARTICLE V
Non -Subordination
Section 5.oi Non -Subordination. Notwithstanding anything to the contrary
contained in this Lease, the fee simple interest in the Demised Premises shall not be
subordinated to any leasehold mortgage, lien or encumbrance of any nature. Furthermore,
the Lessor's right to receive payment or performance under the terms of this Lease or
adherence to any of its conditions or to the Affordable Restrictions (or performance under
or adherence to the terms of any Sublease or related instrument) shall not be subordinated
to any debt or equity financing, leasehold mortgage, lien, encumbrance or obligation of any
nature whatsoever.
ARTICLE VI
Payment of Taxes and Utilities
Section 6.o i Lessee's Obligations. During the period 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, general
and special, ordinary and extraordinary, unforeseen and foreseen, of any kind and nature
whatsoever, which at any time during the Term of this Lease may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect of, or
become a lien on, the Demised Premises, or otherwise arise out of the revenues received by
the Lessee from the sale or rental of the Affordable Housing Units to Sublessees, or be
associated with any document (to which the Lessee is a party) creating or transferring an
interest or estate in the Demised Premises. With regard to special assessments, if the right
is given to pay either in one sum or in installments, Lessee may elect either mode of
payment and Lessee's election shall be binding on Lessor.
Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee, unless
Lessee fulfills all such obligations pursuant to Section 6.oi, above, shall pay and discharge,
as they become due, promptly and before delinquency, all taxes, assessments, water and
sewer rents, rates and charges, transit taxes, charges for public utilities, excises, levies,
licenses and permit fees and other governmental charges, general and special, ordinary and
extraordinary, unforeseen and foreseen, of any kind and nature whatsoever, which at any
time during the term of this Lease may be assessed, levied, confirmed, imposed upon, or
Page 9 of 43
grow or become due and payable out of or in respect of, or become a lien on, the Sublessee's
interest in the Demised Premises, or otherwise arise out of the revenue received by
Sublessee from the sale of their Affordable Housing Unit (if contemplated or otherwise
authorized under this Lease or the Affordable Restrictions), or be associated with any
document (to which the Sublessee is a party) creating or transferring an interest or estate in
the respective portion of the Demised Premises.
Section 6.03 Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
federal capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or
Lessor's legal representative, corporate franchise taxes imposed upon any corporate owner
of the fee of the Demised Premises; provided, however, that if at anytime during the term of
this Lease the methods of taxation prevailing at the commencement of the term hereof shall
be altered so as to cause the whole or any part of the taxes, assessments, levies, impositions
or charges now levied, assessed and imposed, wholly or partially as a capital levy, or
otherwise, on the rents received therefrom, or of any tax, corporation franchise tax,
assessments, levy (including, but not limited to any municipal, state or federal levy),
imposition or charge, or any part thereof, shall be measured by or based in whole or in part
upon the Demised Premises and shall be imposed upon the Lessor, then all such taxes,
assessments, levies, impositions or charges, or the part thereof so measured or based, shall
be paid and discharged by the Lessee. All rebates on account of any taxes, rates, levies,
charges or assessments required to be paid shall belong to Lessee.
Section 6.04 Mode of Pa, mien The Lessee (and any Sublessee, as to their specific
interests in the Demised Premises) shall pay the taxes and other charges as enumerated in
this Article VI and shall deliver official receipts evidencing such payment to the Lessor
(Sublessees shall only deliver receipts as may be required by the Affordable Restrictions),
which payment of taxes shall be made and the receipts delivered, at least thirty (3 0) 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 (i V2) times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
thereof shall have been determined, and which written notice and bond or equivalent cash
shall be given by the Lessee to the Lessor, not later than sixty (60) days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6.05 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,
pay the same andthe 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
Page 10 of 43
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 ofthe Lessor to
pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding
the foregoing, Lessee shall have the right to contest any taxes and assessments levied
against Lessee in accordance with paragraph 6.04, above; and provided Lessee files the
appropriate documentation to contest said tax or assessment, Lessee shall not be in default
of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein
shall be construed to prevent or inhibit the assessment measures and collection remedies
lawfully available to any taxing authority.
Section 6.0 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make
any of the payments required in this Article, then the Lessor may, but shall not be required
to, pay the same, and the amount or amounts of money so paid, including reasonable
attorneys' fees and expenses which might be reasonably incurred because of or in
connection with such payments, together with interest on all such amounts, at the highest
rate allowed by law shall be repaid by the Sublessee to the Lessor, upon the demand of the
Lessor, and the payment thereof may be collected or enforced by the Lessor in the same
manner as though such amount were an installment of Rent specifically required by the
terms of this Lease to be paid by the Sublessee to the Lessor, upon the day when the Lessor
demands repayment thereof or reimbursement therefor of and from the Sublessee; but the
election of the Lessor to pay such taxes shall not waive the default thus committed by the
Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to contest any
taxes and assessments levied against Sublessee; and provided Sublessee files the
appropriate documentation to contest said tax or assessment, Sublessee shall not be in
default of this Lease or obligated to pay any interest or other penalties to Lessor. Nothing
herein shall be construed to prevent or inhibit the assessment measures and collection
remedies lawfully available to any taxing authority.
Section 6.07 Appraiser to Respect Effect of Affordable Restrictions. It is the intent
of the parties that any appraisal of any portion of the Demised Premises for taxation, public
assessment or utility service purposes fully reflect the effect of this Lease and the Affordable
Restrictions on the lawfully realizable value of relevant portion(s) appraised, or where
permissible by state law, "income approach" or other method of calculation.
ARTICLE VII
Mechanic's Liens
Section 7.oi No Lien. Neither the Lessee nor any Sublessee shall have the power to
subject the interest of the Lessor in the Demised Premises to any mechanic's or
materialmen's lien of any kind whether or not the improvements are made with the consent
of the Lessor.
Section 7.o2 Release of Lien. Neither the Lessee nor any Sublessee shall permit or
suffer to be filed or claimed against the interest of the Lessor in the Demised Premises
during the continuance of this Lease any lien or claim of any kind, and if such lien be
Page 11 of 43
claimed or filed, it shall be the duty of the Lessee, or the Sublessee, to which the lien or
claim is attributable, or both where the Affordable Housing Unit is a rental unit, within
thirty (30) days afterthe Lessee or Sublessee shall have been given written notice of such a
claim having been filed, or within thirty (30) days after the Lessor shall have been given
written notice of such claim and shall have transmitted written notice of the receipt of such
claim unto the Lessee or Sublessee, as the case may be, (whichever thirty (3o) day period
expires earlier) to cause the respective portion of the Demised Premises to be released from
such claim, either by payment or by the posting of bond or by the payment to a court of
competent jurisdiction of the amount necessary to relieve and release the relevant portion
of tbe-Demised Premises from such claim, or in any other manner which, as a matter of law,
will result, within such period of thirty (3o) 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 .o 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.o4Su lessee'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
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.
Page 12 of 43
ARTICLE VIII
Governing Law. Cumulative Remedies
Section 8. of Governing Law All of the rights and remedies of the respective parties
relating to or arising under this instrument and any related documents shall be governed by
and construed under the laws of the State of Florida.
Section 8.02 Cumulative Remedies All rights and remedies accruing to the Lessor
shall be assignable in whole or in part and be cumulative; that is, the Lessor may pursue
such rights as the law and this Lease afford to it in whatever order the Lessor desires and
the law permits. Lessor's resort to any one remedy in advance of any other shall not result
in waiver or compromise of any other remedy.
ARTICLE IX
Indemnification of Lessor
Section cwi Indemnification' Lessee. During the Term of the Lease and during
the period from the Effective Date to the Commencement Date, during which Lessee shall
be entitled and obligated to maintain site control of and insurance for the Demised
Premises for construction of the Affordable Housing Units, Lessee will indemnify, defend
and save harmless the Lessor against any and all claims, debts, demands or obligations
which may be made against the Lessor or against the Lessors title in the Demised Premises,
arising out of, or in connection with, or in any way related to the Demised Premises. If it
becomes necessary for the Lessor to respond to any claim, demand or unanticipated matter
or to defend any action seeking to impose any such liability, the Lessee will pay the Lessor
all costs of court and reasonable attorneys' fees incurred by the Lessor in effecting and
preparing for such response or defense in addition to any other reasonable sums which the
Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor in
any proceeding in which such claim is asserted.
Notwithstanding the foregoing, it is hereby acknowledged that, except as otherwise
provided in Section 12.01, upon completion of the construction and sale or assignment of
any portions of the Project in accordance with this Lease if contemplated and authorized as
a home -ownership project, Initial Lessee shall be released from any and all liability related
to such transferred portions of the Demised Premises and the subsequent use thereof by the
Sublessees, their employees, agents, contractors, guests or invitees, including without
limitation any death, injury or damage to person or property in or about the transferred
portions of the Demised Premises, except as otherwise set forth herein. However, this
release shall not constitute a release or waiver of Lessor's rights, if any, or possible
entitlement to insurance coverages required by this Lease.
Lessor shall not be liable to Lessee, or to Lessee's assignees or Sublessees or their
employees, agents, contractors, guests or invitees for any death, injury or damage to person
or property in, about or relating to the Demised Premises. Lessee, on its and its assignees'
Page 13 of 43
and their successors in interests' behalves, including any future Sublessees, or grantees or
licensees of the Initial Lessee, or any guests, invitees or tenants of any of the foregoing,
hereby assumes and covenants for its own and their own acceptance of sole responsibility
and liability to all persons for death, injury or damage related to or arising from the
ownership, possession, occupancy and for use of any portion of the Demised Premises, and
also, for all such future occupants, owners, Lessees, Sublessees, tenants, guests, invitees and
licensees, waives and releases forever all claims, demands and causes of action against
Lessor and its officers, employees, agents, successors, assigns, contractors and
representatives for loss of life or injury to person or property, of whatever nature.
Section g.02 Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X insuring
the Lessee against any and all claims and demands made by any person or persons
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as
their respective interests may appear, as the persons insured by such policies. Any loss
adjustment shall require the written consent of both the Lessor and Lessee.
Sectiong.o 3 Policy Limit Changes. The policy limits for the comprehensive liability
insurance may be reviewed by Lessor every five (5) years and adjusted upward, if, in the
reasonable discretion of Lessor such increase in coverage is prudent or if similar projects
have begun to require greater insurance coverage.
ARTICLE X
Insurance
Section io.oi Prouerty Insurance. From and after the Effective Date, the Lessee
will keep insured any and all buildings and improvements upon the Demised Premises
against all loss or damage by fire, flood and windstorm, together with "all risks" "extended
coverage, which said insurance will be maintained in an amount sufficient to prevent any
party in interest from being or becoming a co-insurer on any part of the risk, which amount
shall not 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 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 j oint account of the Lessor and the Lessee in a bank designated
by the Initial Lessee, Lessee or Lessee's Mortgagee and located in the County in which the
Demised Premises is located, and shall be made available to the Lessee for the construction
or repair (including any modification to the improvements sought by the Lessee and
approved in writing by the Lessor with Lessor's approval not unreasonably withheld), as the
case may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or
other casualty for which insurance money shall be payable and shall be paid out by the
Page 14 of 43
Lessor and the Lessee from said joint account from time to time on the estimate of any
reliable architect licensed in the State of Florida officially overseeing of such reconstruction
and repair, certifying that the amount of such estimate is being applied to the payment of
the reconstruction or repair and at a reasonable cost therefor; provided, however, that the
total amount of money necessary for the reconstruction or repair of any building or
buildings destroyed or damaged has been provided by the Lessee for such purpose and its
application for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as any portion of said Demised
Premises shall be destroyed or damaged by fire, flood, windstorm or other casualty, the
Lessee shall, within fifteen (15) months (or twenty-four (24) months for a substantially total
loss) from the date of such damage or destruction, rebuild and repair the same in such
manner that the buildings or improvements so rebuilt and repaired, and the personal
property so replaced or repaired, shall be of the same or of a value higher than were the
buildings or improvements and the personal property prior to such damage or destruction,
and Lessee shall diligently prosecute the reconstruction or repairs without delay and have
the same rebuilt and ready for occupancy as soon as reasonably possible after the time when
the loss or destruction occurred. The i5-month period (or twenty-four (24) month period
for a substantially total loss) for reconstruction shall be enlarged by delays caused without
fault or neglect on the part of the Lessee, by act of God, strikes, lockouts, or other conditions
(other than matters of refinancing the property) beyond the Lessee's control.
Notwithstanding the foregoing, and only with respect to insurance proceeds, the provisions
of any leasehold mortgage substantially comporting with customary institutional lending
industry standards and the foregoing Lessor's interests shall control as to the use and
disbursement of insurance funds for reconstruction of the improvements in the event of any
casualty or damage to such improvements.
While the Project, or any replacement thereof, is in the course of construction, and
whenever appropriate while any alterations are in the course of being made, the aforesaid
fire and extended coverage insurance shall be carried by Lessee in builder's risk form
written on a completed value basis.
Notwithstanding anything to the contrary in the immediately preceding paragraph,
in case of destruction of all of the improvements on the Demised Premises from any cause
so as to make all Affordable Housing Units untenantable occurring during the last ten (io)
years of the Term of this Lease, Lessee, if not then in default under this Lease and if there is
no leasehold mortgage or other similar encumbrance on the Lessee's interest in the
Demised Premises, may elect to terminate this Lease by written notice to Lessor within
thirty (3o) 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 (1o) 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.
Page 15 of 43
Section 10.02 Commercial General Liability Insurance. The Initial Lessee shall
maintain Commercial General Liability Insurance beginning on the Effective Date and
continuing during the entire Term of this Lease. The Commercial General Liability
Insurance shall cover those sources of liability which would be covered by the latest edition
of the standard Commercial General Liability Coverage Form [ISO Form CG oo-oi] as filed
for use in Florida without the attachment of restrictive endorsements other than the
elimination of medical payments and fire damage legal liability.
General Aggregate
$1,000,000
Products/Completed Operations
$1,000,000
[coverage for one (i) year after project completion]
Each Occurrence
$1,000,000
Contractual Liability
$1,000,000
Additional Named Insured: Lessor, or its assigns or designees, as from time to time
designated by written notice to Lessee, shall be included as additional insureds for
Commercial General Liability.
Section io.on 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 io.o4 Other Insurance. Lessee shall maintain such other insurance and in
such amounts as may from time to time be reasonably required by the Lessor against other
insurable hazards which at the time are commonly insured against in the case of
construction of buildings and/or in the case of premises similarly situated, due regard being
or to be given to the location, construction, use and occupancy. In the event the Lessee
believes the Lessor's requirement for such additional insurance is unreasonable the
reasonableness of Lessor's request shall be determined by mediation according to the rules
of the Sixteenth Judicial Circuit in Monroe County, Florida. Such determination as to the
requirement of coverage and the proper and reasonable limits for such insurance then to be
carried shall be binding on the parties and such insurance shall be carried with the limits as
thus determined until such limits shall again be changed pursuant to the provisions of this
Section. The expenses of such determination shall be borne equally by the parties. This
procedure may only be requested on each five (5) year anniversary date of the Lease.
Section io.o,5 Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage
created pursuant to the provisions of Article XV elects, in accordance with the terms of such
mortgage, to require that the proceeds of any casualty insurance be held by and paid out by
the mortgagee, then such payment 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.
Page 16 of 43
Section io.o6 Damages: Insurance Proceeds; Joint Bank Account. Any excess of
money received from insurance remaining in the joint bank account after the reconstruction
or repair of such building or buildings, if the Lessee is not in default, shall be paid to the
Lessee. Absent circumstances reasonably excused under the conditions set forth in
paragraph 14.03, in the case of the Lessee not entering into the reconstruction or repair of
the building or buildings within a period of six (6) months from the date of payment of the
loss, after damage or destruction occasioned by fire, windstorm, flood or other cause, and
diligently prosecuting the same with such dispatch as may be necessary to complete the
same in as short a period of time as is reasonable under the circumstances after the
occurrence of such damage or destruction, then the amount so collected, or the balance
thereof remaining in the joint account, as the case may be, shall be paid to the Lessor and it
will be at the Lessor's option to terminate the Lease, unless terminatedby Lessee within the
last ten (io) years of the Lease as set forth above, and retain such amount as liquidated and
agreed upon damages resulting from the failure of the Lessee to promptly, within the time
specified, complete such work of reconstruction and repair.
Section io.w Direct Reps, ent. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and oo/ioo Dollars
($ioo,000.00) or less, then such proceeds shall be paid directly to the Lessee without the
necessity of creating the joint bank account, and Lessee shall use such funds to make the
replacements or repairs. Lessee shall provide proof satisfactory to Lessor that repairs are
completed as required within fifteen (15) months from the date of such damage or
destruction, unless said period is enlarged by delays caused without fault or neglect on the
part of the Lessee.
Section io.o8 General Requirements. All insurance to be provided by Lessee under
this Lease shall be effected under valid and enforceable policies in such forms, issued by
insurers of recognized financial responsibility qualified to do business in Florida which have
been approved by Lessor, which approval shall not be unreasonably withheld. All policies of
insurance provided for in this Article shall, to the extent obtainable, contain clauses or
endorsements to the effect that (i) no act or negligence of Lessee or anyone acting for Lessee
or for any Sublessee or occupant of the Demised Premises which might otherwise result in a
forfeiture of such insurance or any part thereof shall in any way affect the validity or
enforceability of such insurance insofar as Lessor, and 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.
ARTICLE XI
Insurance Premiums
Section ii.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
Page 17 of 43
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
Avith 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,) fails to
obtain and pay for the necessary insurance.
ARTICLE X1I
Assignment/Transfer
Section i2.oi Assignment by Initial Lessee. Lessee may assign or sublease the
affordable unit(s) using its own ground lease as long as it contains provisions for the
affordable housing restrictions as set forth in this Lease and in the Monroe County Code
and is consistent with other provisions herein. Without the written consent of Lessor, Initial
Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable
Housing Unit(s) are to be developed as units for rent or sale to moderate or lesser income
qualified third parties, as defined in the Affordable Restrictions. Therefore, the Affordable
Housing Units may be rented and occupied without the Initial Lessee obtaining consent
from Lessor for such subletting, provided that Initial Lessee shall follow the guidelines set
forth herein. In the event an Affordable Housing Unit is to be rented to a qualified third
party by Initial Lessee, said Unit shall only be rented at rates allowable under the Affordable
Restrictions for moderate or lesser income -qualified third parties. Additionally, in the
event Initial Lessee retains ownership of Affordable Housing Units for rental purposes,
Initial Lessee shall have the right to assign its duties as property manager for said Units to a
third party without obtaining consent from Lessor, but shall ultimately remain responsible
for performance of such duties by any designated property manager.
Section 12 02 Initial Sale/Lease of Unit By Developer/Initial Lessee Initial Lessee
shall be authorized to sell the Affordable Housing Units to individuals qualified to
own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record. Notwithstanding anything contained herein to the contrary, all
purchasers/Sublessees of such Affordable Housing Units shall meet Monroe County's
requirements of moderate or lesser income affordable housing, adjusted for family size, and
any other applicable Affordable Restrictions. Initial Lessee shall upon Lessor's request
provide verification in a form and manner reasonably determined by Lessor that
purchasers/sublessees/tenants for all Affordable Housing Units meet the requirements
herein.
Section Mon Assignment/Transfer by Sublessees. At such time as any individual
Unit Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable
Housing Units and interests, the Sublessee shall be required to follow the procedures set
forth herein and any procedure that may be set forth in the Affordable Restrictions, and any
conveyance, transfer or other disposition and the acceptance of such transfers shall be
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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
Premisesother than those mortgage interests provided for in Article XV, shall contain the
following required Notice of Restrictions in a conspicuous location on the upper one-half of
the first page of the relevant instrument effectuating the interest in bold capital typed
letters greater than or equal to 14 point font:
NOTICE OF RESTRICTIONS
ANY INSTRUMENT OF CONVEYANCE, LEASE, ASSIGNMENT, GRANT
OR OTHER DISPOSITION OF ANY INTEREST IN OR TO ANY PORTION OF
THE DEMISED PREMISES OR TO ANY IMPROVEMENTS ERECTED
THEREON WILL BE SUBJECT TO CERTAIN RESTRICTIONS INCLUDING BUT
NOT LIMITED TO RIGHTS OF FIRST REFUSAL, USE, OCCUPANCY, INCOME,
MEANS, RESALE PRICE, RENTAL AND MORTGAGE LIMITATIONS,
INCLUDING BUT NOT LIMITED TO THOSE SET FORTH IN OFFICIAL
RECORDS BOOK _, PAGE _ OF THE PUBLIC RECORDS OF MONROE
COUNTY, FLORIDA.
The book and page numbers of the first recorded page of this Lease of the Demised
Premises shall be set forth in the Notice of Restrictions. Any instrument of conveyance,
lease, assignment or other disposition made without following the notice procedures set
forth herein shall be void and confer no rights upon any third person, though such
instruments may in some cases be validated by fully correcting them according to
procedures established by Lessor, as determined in Lessor's sole discretion, so as to ensure
compliance with the public affordability purposes furthered by this Lease and the
Affordable Restrictions.
Section i2m Follow-on Sales and Assignments of Ground Lease &QQuiremen%-
Right of FirstRefiLsal. If Lessee or Sublessee can not find a suitable purchaser or
sub lessee, or qualified tenant, for the Affordable Housing Unit(s) Lessee shall notify Lessor
who may provide Lessee with a qualified person or Lessor may have the right of first refusal
to purchase the premises.
Any rental agreement shall contain the following warning prominently set forth in writing:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT
UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83
FLORIDA STATUTES, THE LESSOR SHALL NOT BE LIABLE OR
RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE LESSEE'S
PERSONAL PROPERTY.
Section 12.06 Assignment by Lessor This Lease shall be freely assignable by the
Lessor, and upon such assignment, the Lessor's liability shall cease and Lessor shall be
released from any further liability. In the event the ownership of the land comprising the
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Leased Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor
to any other person or entity, this Lease shall not cease, but shall remain binding and
unaffected.
Section 12.o7 Death of a Unit Owner. In the event the Owner of an Affordable
Housing Unit dies, Lessor shall, unless for good cause shown, consent to a transfer of the
leasehold interest to the spouse, child(ren) or other heirs, devisees, legatees or beneficiaries
of the Affordable Housing Unit Owner provided that such persons state, in writing, under
oath that they have reviewed the terms of this Lease and any related documents, and that
they understand and accept the terms of this Lease by signing an acknowledgement, which
is substantially in a form similar to that attached hereto as Exhibit D. All spouses, heirs,
devisees, legatees or other beneficiaries must demonstrate to the Lessor's reasonable
satisfaction that they qualify for ownership and/or occupancy of an affected Affordable
Housing Unit as provided for under this Lease and in the Affordable Restrictions. All
estates and leasehold or other interests granted in or conveyed with respect to any of the
Demised Premises do not extend to any degree so as to limit or inhibit the intent and
operation of this Lease and the Affordable Restrictions, it being expressly and irrevocably
accepted on behalf of all future Sublessees and all those who would or might succeed to
their interests, that these Demised Premises and each and every portion thereof, for the
entire Term of this Lease, are to be used as affordable housing according to the Affordable
Restrictions. In the event the spouse, heirs, devisees, legatees or beneficiaries of a deceased
Owner do not meet the requirements for affordable housing, such persons shall not occupy
the premises and shall not be entitled to possession, except and only to the extent that the
Lessor permits same, under conditions that it determines furthers the goals and public
purposes of this Lease and the Affordable Restrictions. Therefore, in such event, the heirs
of the decedent shall, if required by Lessor, transfer their interest in the Affordable Housing
Unit in accordance with the provisions of this Article MI and cooperate with the Lessor in
accomplishing same. It is the intent of this Lease, to the full extent Florida law permits,
that constitutional homestead rights not be construed to inhibit or limit the intended
operation of this provision.
Section 12.08 Administrative Fees. Lessee may not charge more than one half of one
percent (.005%) administrative fee based on the sales price for the transfer of
improvements from one sublessee to another.
ARTICLE XIII
Condemnation
Section .oi Eminent o i • 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
made, then the matters in dispute shall be determined in accordance with mediation
Page 20 of 43
according to the rules of the 16th 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 vi.o2 Apportionment. Although the title to the building and improvements
placed by the Lessee upon the Demised Premises will on the Termination Date pass to the
Lessor, nevertheless, for purpose of condemnation, the fact that the Lessee placed such
buildings on the Demised Premises shall be taken into account, and the deprivation of the
Lessee's use (and any use of a Sublessee) of such buildings and improvements shall,
together with the Term of the Lease remaining, be an item of damage in determining the
portion of the condemnation award to which the Lessee or Sublessee is entitled. In general,
it is the intent of this Section that, upon condemnation, the parties hereto shall share in
their awards to the extent that their interests, respectively, are depreciated, damaged, or
destroyed by the exercise of the right of eminent domain. In this connection, if the
condemnation is total, the parties agree that the condemnation award shall be allocated so
that the then value of the property, as though it were unimproved property, shall be
allocated to the Lessor, and the then value of the building or buildings thereon shall be
allocated between the Lessor and Lessee after giving due consideration to the number of
years remaining in the Term of this Lease and the condition of the buildings at the time of
condemnation. The Lessee shall not be precluded from any condemnation remedy
otherwise available to it by law.
ARTICLE XIV
Construction
Section 14.01 Requirement to Construct Project.
(a) Initial Lessee shall complete construction by December 31,2009 of two
affordable housing units. The foregoing limitation of time for the completion of the Project
may be extended by written agreement between the parties hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers, letters
or other materials in their possession or under their control where such information is
subject to public disclosure under the provisions of Chapter ii9, F.S., or successor or
supplemental statutes. However, nothing contained herein shall be construed to render
documents or records of Initial Lessee or any other persons that would not be deemed
public records under Chapter 119 to be such records onlybecause of this provision. Lessees
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
performance under this Lease in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said officials or of
the Lessor, shall, during the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, have access to and the right to examine and audit
any Records of the Lessee involving transactions related to this Agreement.
Page 21 of 43
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
permits and licenses, provided that such approvals, permits and licenses shall be obtained
at Initial Lessee's sole cost and expense. Nothing in this Lease is intended to or shall be
construed to obviate or lessen any requirements for customary development approvals from
any permitting authority, including the Lessor. Nothing in this Lease shall be construed as
the Lessor's delegation or abdication of its zoning authority or powers and no zoning
approval that Initial Lessee may require to complete its performance under this Lease has
been or shall be deemed agreed to, promise or contracted for by this Lease.
(e) Construction of the Project on the Demised Premises prior to and during the
Term of this Lease shall be performed in a good and workmanlike manner, pursuant to
written contracts with licensed contractors and in accordance with any and all requirements
of local ordinances and with all rules, regulations and requirements of all departments,
boards, officials and authorities having jurisdiction thereof. It is understood and agreed
that the plans and specifications for all construction shall be prepared by duly qualified
architects/engineers licensed in the State of Florida.
(f) At all times and for all purposes hereunder, the Initial Lessee is an
independent contractor/lessee and not an employee ofthe Board of County Commissioners
of Monroe County or any of its agencies or departments. No statement contained in this
Lease shall be construed as to find the Initial Lessee or any of its employees, contractors,
servants or agents to be employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of County
employees. No covenant or agreement contained herein shall be deemed to be a covenant
or agreement of any member, officer, agent or employee of Monroe County or the Initial
Lessee or Lessee in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the Initial Lessee or Lessee shall be liable personally on this
Lease or be subject to any personal liability or accountability by reason of the execution of
this Lease.
(g) Initial Lessee agrees that it will not discriminate against any employees,
applicants for employment, prospective Sublessees or other prospective future subinterest
holders or against persons for any other benefit or service under this Lease because of their
race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap
where the handicap does not affect the ability of an individual to perform in a position of
employment, and to abide by all federal and state laws regarding non-discrimination.
(h) Lessee shall be entitled during the full term of this Lease to make alterations
to the Demised Premises in accordance with the requirements set forth in sub -paragraph
Page 22 of 43
(e), above.
14.02 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.
14.03 Easements. Lessee shall be authorized to grant reasonable and necessary
easements for access and utilities customary for similar land uses and construction projects
in Monroe County subject to Lessor's attorney's review and approval for substance and
form of easement instruments, which approval shall notbe unreasonably withheld, delayed
or conditioned. Lessor shall make objection to any proposed easement instruments within
fifteen (is) business days of receipt of copies thereof, or Lessor's approval shall be deemed
granted.
ARTICLE XV
Mortgage Financing
Section > wi Construction •FinancingBy Initial Lessee. Initial Lessee shall have the
right to mortgage its interests in the Demised Premises.
(a) The Initial Lessee shall have the right to encumber by mortgage or
other proper instrument Initial Lessee's interest under this Lease, together with all
buildings and improvements placed by Initial Lessee on the Demised Premises, a Federal or
State Savings & Loan Association, Bank or Trust Company, Insurance Company, Pension
Fund or Trust (or to another private lender so long as the terms and conditions of the
financing from private lender are on substantially similar terms to those then existing by
the other lenders referred to in this Section), or to similar lending institutions authorized to
make leasehold mortgage loans in the State of Florida, or to any public or quasi -public
lender.
(b) Until the time any leasehold mortgage(s) shall be satisfied of record,
when giving notice to the Initial Lessee with respect to any default under the provisions of
this Lease, the Lessor shall also serve a copy of such notice upon the Initial Lessee's
leasehold mortgagee(s) at addresses for notice set forth in the mortgage instrument(s)
(including assignments thereof) as recorded in the Public Records of Monroe County,
Florida. No such notice to the Initial Lessee shall be deemed to have been given unless a
copy of such notice has been mailed to such leasehold mortgagee(s), which notice must
Page 23 of 43
specify the nature of each such default. Initial Lessee shall prm,ide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises, including modifications and
assignments thereof.
(c) In case the Initial Lessee shall default under any of the provisions of
this Lease, the Initial Lessee's leasehold mortgagee(s) shall have the right to cure such
default whether the same consists of the failure to pay Rent or the failure to perform any
other matter or thing which the Initial Lessee is required to do or perform and the Lessor
shall accept such performance on the part of the leasehold mortgagee(s) as though the same
had been done or performed by the Initial Lessee. The leasehold mortgagee(s), upon the
date of mailing by Lessor of the notice referred to in subparagraph (b) of this Section 15.01
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 (6o) days within
which to cure any non -monetary default or cause the same to be cured or to commence to
cure such default with diligence and continuity; provided, however, that as to any default of
the Initial Lessee for failure to pay Rent, or failure to pay any amount otherwise required
under the terms of this Lease (e.g., including, but not limited to, taxes or assessments), the
leasehold mortgagee(s) shall have thirty (3o) 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
corporation or other legal entity formed by or on behalf of such leasehold mortgagee(s) or
by or on behalf of the holder of the note secured by the leasehold mortgage, for the
remainder of the term, effective on the date of such termination, at the Rent and upon the
covenants, agreements, terms, provisions and limitations contained in this Lease, provided
that such leasehold mortgagee(s) make written request and execute, acknowledge and
deliver to the Lessor such new Lease within thirty (3o) days from the date of such
termination and such written request and such new Lease is accompanied by payment to
the Lessor of all amounts then due to the Lessor, including reasonable counsel fees, court
costs and disbursements incurred by the Lessor in connection with any such default and
termination as well as in connection with the execution, delivery and recordation of such
new Lease, less the net income collected by the Lessor subsequent to the date of termination
of this Lease and prior to the execution and delivery of the new Lease, and any excess of
such net income over the aforesaid sums and expenses to be applied in payment of the Rent
thereafter becoming due under such new Lease.
Any new Lease referred to in this Section 15.oi(d) shall not require any
execution, acknowledgement or delivery by the Lessor in order to become effective as
against the Lessee (or any Sublessees) and the Lessee (and any Sublessees) shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
Page 24 of 43
theretofore have received written notice; and (h) 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.oi(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 andtransferredto the Lessor
and all Subleases under which Sublessees shall be required to attorn to the Lessor pursuant
to the terms and conditions of such Subleases or this Lease. Such assignment by the Lessor
shall be deemed to be without recourse as against the Lessor. Within ten (io) days after a
written request therefore by the leasehold mortgagee(s), such assignment or assignments
shall be reduced to a writing in recordable form and executed, acknowledged and delivered
by the Lessor to the leasehold mortgagee(s).
(e) The Initial Lessee's leasehold mortgagee(s) may become the legal
owner and holder of this Lease by foreclosure of its(their) mortgage(s) or as a result of the
assignment of this Lease in lieu of foreclosure, which shall not require Lessor's consent,
whereupon such leasehold mortgagee(s) shall immediately become and remain liable under
this Lease as provided in Section 15.oi(f) below.
(f) In the event that a() leasehold mortgagee(s) shall become the owner or
holder of the Lessee's interest by foreclosure of its(their) mortgage(s) or by assignment of
this Lease in lieu of foreclosure or otherwise, the term "Initial Lessee," as used in this Lease,
means only the owner or holder of the Lessee's interest for the time period that such
leasehold mortgagee(s) is(are) the owner or holder of the Lessee's interest. Accordingly, in
the event of a sale, assignment or other disposition of the Initial Lessee's interest in this
Lease by the leasehold mortgagee(s), where leasehold mortgagee(s) took title or ownership
of or to any or all of the Initial Lessee's interest in the Lease and/or any portion of the
Demised Premises as a result of foreclosure or acceptance of an assignment in lieu thereof,
the leasehold mortgagee(s) shall be entirely freed and relieved of all covenants and
obligations of performance relating to construction, marketing and transfer to Sublessees
and it shall be deemed and construed, without further agreement between the Lessor and
the mortgagee(s), or between the Lessor, the mortgagee(s) and the mortgagees'
purchaser(s) or assignee(s) at any such sale or upon assignment of Initial Lessee's interest
by the leasehold mortgagee(s), that the purchaser(s) or assignee(s) of Initial Lessee's
interest has assumed and agreed to carry out any and all covenants and obligations of Initial
Lessee, including but not limited to the construction, maintenance and management of the
Affordable Housing Units contemplated herein. In no event shall any protections afforded
the leasehold mortgagee(s) under this Lease be construed to permit eventual use of the
Demised Premises for purposes inconsistent with this Lease or the Affordable Restrictions.
(g) Within ten (io) days after Lessor's receipt of written request by Initial
Lessee or by Initial Lessee's leasehold mortgagee(s), or after receipt of such written request
in the event that upon any sale, assignment or mortgaging of Initial Lessee's interest in this
Lease by Initial Lessee or Initial Lessee's leasehold mortgagee(s), an offset statement shall
be required from the Lessor, and the Lessor agrees to deliver in recordable form a certificate
to any proposed leasehold mortgagee(s), purchaser(s), assignee(s) or to Initial Lessee,
Page 25 of 43
certifying (if such be the case) (i) that this Lease is in full force and effect; (ii) that the
Lessor has no knowledge of any default under this Lease, or if any default exists, specifying
the nature of the default; and (iii) that there are no defenses or offsets which are known and
may be asserted by the Lessor against the Lessee with respect to any obligations pursuant to
this Lease.
(h) So long as the Initial Lessee's interest in this Lease shall be mortgaged
to a leasehold mortgagee(s), the parties agree for the benefit of such leasehold
mortgagee(s), that they shall not surrender or accept a surrender of this Lease or any part of
it, nor shall they cancel, abridge or otherwise modify this Lease or accept material
prepayments of installments of Rent to become due without the prior written consent of
such mortgagee(s) in each instance.
(i) Reference in this Lease to acquisition of the Initial Lessee's interests in
this Lease by the leasehold mortgagee(s) shall be deemed to refer, where circumstances
require, to acquisition of the Initial Lessee's interest in this Lease by any purchaser at asale
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).
Q) So long as the Initial Lessee's interest in this Lease shall be mortgaged
to a leasehold mortgagee(s), the parties agree for the benefit of such leasehold mortgagee(s)
that the Lessor shall not sell, grant or convey to the Initial Lessee all or any portion of the
Lessor's fee simple title to the Demised Premises without the prior written consent of such
leasehold mortgagee(s). In the event of any such sale, grant or conveyance by the Lessor to
the Initial Lessee, the Lessor and the Lessee agree that no such sale, grant or conveyance
shall create a merger of this Lease into a fee simple title to the Demised Premises. This
subparagraph 0) shall not be construed to prevent a sale, grant or conveyance of the
Lessor's fee simple title by the Lessor to any person, firm or corporation other than the
Initial Lessee, its successors, legal representatives and assigns, so long as this Lease is not
terminated.
(k) Reference in this Lease to the Initial Lessee's leasehold mortgagee(s)
shall be deemed to refer where circumstances require to the leasehold mortgagee(s)'s
assignee(s); provided that such assignee(s) shall record proper assignment instruments in
the Public Records of Monroe County, Florida, together with written notice setting forth the
name and address of the assignee(s).
0) In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the
release of any and all applicable portions of its (their) mortgage(s) on the entire Demised
Premises so as to grant clear title to the Sublessee. The details and release payment
requirements shall remain within the reasonable business discretion of the Initial Lessee
and the leasehold mortgagee(s).
Page 26 of 43
(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.oi, to elect to deal primarily or
exclusively with a mortgagee whose position is primaiy or in first order of priority with
respect to foreclosable interests or rights according to the laws of the State of Florida or as
contractually agreed by and among multiple mortgagees, where there are such.
Section i&o2 Permitted Mortgages for Sublessees (Unit Owners). The Lessee shall
incorporate the following into its sublease: The individual Affordable Housing Unit
Owners/Sublessees shall have the right to encumber by mortgage their interests in any
Sublease, improvements or any associated portions of the Demised Premises related to their
interests in the individual Affordable Housing Units to a State approved home loan
program, mortgages held by Lessee, Federal or State Savings Loan Association, Bank, Trust
Company or similar lending institution, subject to the following requirements:
(a) The mortgage(s) encumbering the Affordable Housing Unit shall not
exceed i00% of the maximum allowable sale price of the Affordable Housing Unit as set
forth in the Affordable Restrictions;
(b) Sublessees shall not be entitled to mortgage their respective leasehold
interests in the event the terms of the note, which is secured by the mortgage, may result in
negative amortization, unless otherwise approved by Lessor;
(c ) In the event of foreclosure sale by a Sublessee's mortgagee or the
delivery of an assignment or other conveyance to a Sublessee's mortgagee in lieu of
foreclosure with respect to any real property subject to the provisions of this Lease, said
mortgagee, or the purchaser at foreclosure, shall comply with the provisions of Article MI.
No sale of any Affordable Housing Unit shall be permitted at an amount in excess of that
allowed under the Affordable Restrictions and shall otherwise fully comply with all
applicable Affordable Restrictions. Any Affordable Housing Unit accepted in lieu of
foreclosure or as to which a mortgagee intends to foreclose shall be subject to the Lessor's
right of first refusal as set forth in Article i2.05. Nothing herein shall preclude potential
purchasers approved by Lessor from bidding at any foreclosure sale and, where successful,
purchasing the subject Affordable Housing Unit at the foreclosure sale price in accordance
with Article XII; and
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
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(d) The parties recognize that it would be contrary to the fundamental
affordable housing concept of this Lease and an incentive to abuse Sublessees authorization
to encumber its leasehold interest with a mortgage if Sublessee could realize more in loan or
sale proceeds than their permitted purchase or resale price as a result of any transaction.
Accordingly, Sublessee hereby irrevocably assigns to Lessee any and all net proceeds from
the sale of any interest in the Demised Premises remaining after payment of costs of
foreclosure and satisfaction of the lien of any mortgage which would have otherwise been
payable to Sublessee, to the extent such net proceeds exceedthe net proceeds that Sublessee
would have received had the interests been sold pursuant to the Affordable Restrictions.
Sublessee hereby authorizes and instructs the mortgagee or any party conducting the
closing of a sale or through an unauthorized transfer to pay the amount of said excess
directly to Lesse. In the event, for any reason, such excess proceeds are paid to Sublessee,
Sublessee hereby agrees to promptly pay the amount of such excess to Lessee.
ARTICLE XVI
Default
Section 16.oi Notice of Default. Lessee shall not be deemed to be in default under
this Lease in the payment of Rent or the payment of any other monies as herein required
unless Lessor shall first give to Lessee and any mortgagees ten (io) days written notice of
such default and Lessee or any other party on its behalf fails to cure such default within ten
(io) days of verifiable receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section, Lessee and Mortagees shall not be deemed to be in default under this Lease unless
Lessor shall first give to Lessee and Mortagees thirty (3o) 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 (30)
days, Lessee fails to commence to cure such default within such period of thirty (3o) days or
fails thereafter to proceed to the curing of such default with all possible diligence.
Mortgagees shall be entitled to cure Lessee defaults on the same terms and conditions as
the Lessee.
Regardless of the notice and cure periods provided herein, in the event that more
rapid action is required to preserve any right or interest of the Lessor in the Demised
Premises due to any detrimental event or occurrence (such as, but not limited to, payment
of insurance premiums, actions to prevent construction or judgment lien foreclosures or tax
sales), then the Lessor is empowered to take such action and to request reimbursement or
restoration from the Lessee as appropriate.
Section 16.o2 Default. In the event of any material breach of this Lease by Lessee,
Lessor, and after the necessary notice and cure opportunity provided to Initial Lessee and
other parties, in addition to the other rights or remedies it may have, shall have the
immediate right to terminate this Lease according to law. In any action by Lessor asserting
a violation of the Affordable Restrictions, Lessee shall have the burden of proof with respect
to such matter. Termination of the Lease, under such circumstances, shall constitute
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effective, full and immediate conveyance and assignment to Lessor of all of the Demised
Premises, improvements and materials and redevelopment rights to and associated with the
Demised Premises and the Project, subject to mortgagee protection as provided herein.
Furthermore, in the event of any breach of this Lease by Lessee, Lessor, in addition to the
other rights or remedies it may have, shall have the immediate right of re-entry (as maybe
lawfully conditioned per application of Chapter 83, Florida Statutes, as amended) and may
remove all persons and personal property from the affected portions of the Demised
Premises. Such property maybe 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.
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Section 16.oq Lessor's Right to Perform. Li the event that Lessee, by failing or
neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty (30)
days after receipt of written notice from Lessor specifying the nature of the act or thing to
be done or performed, then Lessor may, but shall not be required to, do or perform or cause
to be done or performed such act or thing (entering on the Demised Premises for such
purposes, with notice, if Lessor shall so elect), and Lessor shall not be or be held liable or in
any way responsible for any loss, inconvenience or annoyance resulting to Lessee on
account thereof, and Lessee shall repay to Lessor on demand the entire expense thereof,
including compensation to the agents and employees of Lessor. Any act or thing done by
Lessor pursuant to the provisions of this section shall not be construed as a waiver of any
such default by Lessee, or as a waiver of any covenant, term or condition herein contained
or the performance thereof, or of any other right or remedy of Lessor, hereunder or
otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this
Lease, if not paid when the amounts become due as provided in this Lease, shall bear
interest from the date they become due until paid at the highest rate allowed by law. Lessor
shall have the same rights set forth in this Section with respect to any future subinterest
holder's respective portion of the Demised Premises.
Section i6.o4 Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.o5. Affordable Restrictions In the event the Lessee or sublessee fails to
comply with the Affordable Restrictions at any given time or any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion, as they pertain to their respective interests in or portions ofthe 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' portions)
of the Demised Premises, then the default termination provisions provided for in this
subsection, shall apply only to those subtenant(s) and sublease(s) in default. In the
foregoing event, Lessor (or the Initial Lessee (or its assigns) in the event of and with respect
only to a default by a particular Sublessee) may terminate the subleases and tenancies
involved, as the case may be, subject to Lessor's compliance with any applicable default
notice provisions provided elsewhere in this Lease and Lessee's and Mortgagees applicable
cure rights, if any. Lessee hereby agrees that all occupants shall use the Leased Premises
and Improvements for affordable residential purposes only and any incidental activities
related to the residential use as well as any other uses that are permitted by applicable
zoning law and approved by Lessor.
ARTICLE XVII
Repair Obligations
Section i7.oi Repair Obligations. During the continuance of this Lease the Lessee,
and every Sublessee with respect to their leased or purchased portions of the Demised
Premises, shall keep in good state of repair any and all buildings, furnishings, fixtures,
landscaping and equipment which are brought or constructed or placed upon the Demised
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Premises by the Lessee, and the Lessee shall not suffer or permit any strip, waste or neglect
of any building or other property to be committed, except for that of normal wear and tear.
The Lessee will repair, replace and renovate such property as often as it may be necessary in
order to keep the buildings and other property which is the subject matter of this Lease in
first class repair and condition. Additionally, Lessor shall not be required to furnish any
services or facilities, including but not limited to heat, electricity, air conditioning or water
or to make any repairs to the premises or to the Affordable Housing Units.
ARTICLE XVI11
Additional Covenants of Lessee/Lessor
Section 18.oi Legal Use, The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of affordable
housing dwelling unit(s) and for no other purposes whatsoever without Lessor's written
consent.
Section 18 o2 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 ense. In the event of any suit, action or
proceeding, at law or in equity, by either of the parties hereto against the other, or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease, including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys' fees including appellate, bankruptcy and post judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Affordable Restrictions from any- person or persons from or to whom a
demand or enforcement request is made, regardless of actual initiation of an action or
proceeding.
Section i8.o4 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as -is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
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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.ori Hazardous Materials. Lessee, its Sublessees and assignees shall not
permit the presence, handling, storage or transportation of hazardous or toxic materials or
medical waste ("hazardous waste") in or about the Demised Premises, except in strict
compliance with all laws, ordinances, rules, regulations, orders and guidelines of any
government agency having jurisdiction and the applicable board of insurance underwriters.
In no event shall hazardous waste be disposed of in or about the Demised Premises. For
purposes herein, the term hazardous materials or substances shall mean any hazardous,
toxic or radioactive substance material, matter or waste which is or becomes regulated by
any federal, state or local law, ordinance, order, rule, regulation, code or any other
governmental restriction or requirement and shall include petroleum products and asbestos
as well as improper or excessive storage or use of common household cleaning and
landscaping chemicals, pesticides, batteries and the like, and those materials defined as
hazardous substance or hazardous waste in the Comprehensive Environmental Response
Compensation and Liability Act and/or the Resource Conservation and Recovery Act.
Lessee shall notify Lessor immediately of any known discharge or discovery of any
hazardous waste at, upon, under or within the Demised Premises. Lessee shall, at its sole
cost and expense, comply with all remedial measures required by any governmental agency
having jurisdiction, unless such discharge is caused by Lessor or any of its agents or
employees.
Lessor and Initial Lessee hereby warrant and represent that to the best of their
knowledge, the Demised Premises is free of any hazardous waste. Lessor shall be liable for
environmental damages according to the extent made so by law for periods following its
taking possession of the Demised Premises upon the Effective Date.
Section 18.o6 Recordation. Lessee, within five (g) business days after execution of
this Lease, shall record a complete, true and correct copy of the Lease and any addenda or
exhibits thereto and any Related Agreement(s) in the Public Records of Monroe County,
Florida and shall provide Lessor with the written Clerk's receipt of the book and page
number where recorded and the original Lease and Related Agreement(s) after recordation.
ARTICLE XIX
Representations. Warranties of Title and Quiet Enjoyment
and No Unlawful or Immoral Purpose or Use
Section ig.oi Representations Warranties of Title and Quiet Enjoyment. Lessor
represents and warrants that to its knowledge, there are no material claims, causes of action
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or other proceedings pending or thrcatened in respect to the ownership, operation or
environmental condition of the Demised Premises or any part thereof. Additionally, the
Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of
the covenants and conditions required by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continued possession of the Demised Premises from
claims by Lessor.
Section 19.02 No Unlawful or Immoral Purpose or Use. The Lessee, as long as it
has any interest in or to any portion of the Demised Premises, shall not occupy or use such
portion for any unlawful or immoral purpose and will, at Lessee's sole cost and expense
during such period of interest, conform to and obey any present or future ordinance and/or
rules, regulations, requirements and orders of governmental authorities or agencies
respecting the use and occupation of the Demised Premises.
ARTICLE XX
Miscellaneous
Section 20.01 Covenants Running with Land. All covenants, promises, conditions
and obligations contained herein or implied by law are covenants running with the land
and, except as otherwise provided herein, shall attach and bind and inure to the benefit of
the Lessor and Lessee and their respective heirs, legal representatives, successors and
assigns, though this provision shall in no way alter the restrictions on assignment and
subletting applicable to Lessee hereunder. The parties agree that all covenants, promises,
conditions, terms, restrictions and obligations arising from or under this Lease and the
Affordable Restrictions benefit and enhance the communities and neighborhoods of
Monroe County and the private and public lands thereof, and have been imposed in order to
assure these benefits and enhancements for the full Term of this Lease. It is intended,
where appropriate and to serve the public purposes to be furthered by this Lease, that its
provisions be construed, interpreted, applied and enforced in the manner of what is
commonly referred to as a "deed restriction."
Section 20.02 No Waiver. Time is of the essence in the performance of the
obligations of the parties hereto. No waiver of a breach of any of the covenants in this Lease
shall be construed to be a waiver of any succeeding breach of the same covenant.
Section 20 0g Written Modifications. No modification, release, discharge or waiver
of any provisions hereof shall be of any force, effect or value unless in writing signed by the
Lessor and Lessee, or their duly authorized agents or attorneys, and signed also by any
mortgagee or their duly authorized agents or attorneys, as long as such mortgagee has both
(i) filed in Public Records of Monroe County, Florida, a "Certificate of Notice" of their
interest in this Lease and or the Demised Premises, said certificate setting forth complete
and current contact information, the real estate parcel number assigned to the Demised
Premises and the O.R. Records Book and Page Number of the first recorded page of this
Lease, and (ii) provided a copy of the recorded certificate to the Lessor at its notice
address(es) via certified mail, return receipt requested, or by national overnight tracked and
delivery -receipt courier service, and unless otherwise required to be "received", it shall be
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deemed given when deposited in the United States mails or Hrith the courier service with
postage or courier fees prepaid..
Section 20.04 Entire Agreement. This Lease, including the Preamble and any
written addenda and all exhibits hereto (all of which are expressly incorporated herein by
this reference) shall constitute the entire agreement between the parties with respect to this
instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20.o5 Notices. If either party desires to give notice to the other in
connection with and/or according to the terms of this Lease, such notice shall be given by
certified mail return receipt requested or by national overnight tracked and delivery -receipt
courier service, and unless otherwise required to be "received", it shall be deemed given
when deposited in the United States mails or with the courier service with postage or
courier fees prepaid. Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is to be given, or the addition of one
additional person or location for notices to be given, but no such change shall be effective
unless and until it shall have been accomplished by written notice given in the manner set
forth in this Section. Notification of default or requests to modify this Lease shall also be
provided according to the foregoing methods to any mortgagee Notification to Lessor and
Initial Lessee shall be as set forth herein, to both of the following offices, unless a different
method is later directed as prescribed herein or by the Affordable Restrictions:
Initial Lessee:
Habitat for Humanity of the
Middle Keys community Land
Trust, Inc.
P.O. Box 60oo67
Marathon, FL 33050
Lessor:
County Administrator
Monroe County
Gato Building
iioo Simonton Street
Key West, FL 33040
and
MONROE COUNTY ATTORNEY
PO Box 1026
Key West, Florida 33041
Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee)
consist of more than one person, such persons shall be jointly and severally liable on the
covenants of this Lease.
Section 20 ov 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
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dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment. In addition, the Lessor's liability under this Lease, unless specifically
dealt with differently herein, shall be at all times limited to the Lessor's interest in the
Demised Premises.
Section 20.08 Captions. The captions used in this Lease are for convenience of
reference only and in no way define, limit or describe the scope or intent of or in any way
affect this Lease.
Section 2o.og 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. io Governing Law, Venue. This Agreement shall be construed under the
laws of the State of Florida, and the venue for any legal proceeding to enforce or determine
the terms and conditions of this Lease shall be in Circuit Court for the 16th Judicial Circuit,
Monroe County, Florida.
Section tom Holding Over. Any holding over after the expiration of the Term of
this Lease, with consent of Lessor, shall be construed to be a tenancy from month to month,
at twice the monthly Rent as required to be paid by Lessee for the period immediately prior
to the expiration of the Term hereof, and shall otherwise be on the terms and conditions
herein specified, so far as applicable.
Section 20.12 Brokers. Lessor and Lessee covenant, warrant and represent that no
broker was instrumental in consummating this Lease, and that no conversations or
negotiations were had with any broker concerning the renting of the Demised Premises.
Lessee and Lessor agree to hold one another harmless from and against, and agree to
defend at its own expense, any and all claims for a brokerage commission by either of them
with any brokers.
Section 20.L3 Partial Invalidity. If any provision of this Lease or the application
thereof to any person or circumstance shall at any time or to any extent be held invalid or
unenforceable, the remainder of this Lease or the application of such provision to persons
or circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby.
Section 20.14 Force Majeure. If either party shall be delayed, hindered or prevented
from the performance of any act required hereunder by reason of strikes, lockouts, labor
trouble, inability to procure material, failure of power, riots, insurrection, severe tropical or
other severe weather events, war or other reasons of like nature not the fault of the party
delayed, in performing work or doing acts required under this Lease, the period for the
performance of any such act shall be extended for a reasonable period. Economic hardship
shall not be considered a basis for such extension.
Section 2oaS Lessor jLessee Relationship. Non -Reliance by Third Parties. This
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Lease creates a lessor/lessee relationship, and no other relationship, between the parties.
This Lease is for the sole benefit of the parties hereto and, except for assignments or
Subleases permitted hereunder and to the limited extent thereof, no other person or entity
shall be a third party beneficiary hereunder. Except as expressly provided under this Lease
or under the Affordable Restrictions, no person or entity shall be entitled to rely upon the
terms, or any of them, of this Lease to enforce or attempt to enforce any third -party claim or
entitlement to or benefit of any service or program contemplated hereunder, and the Lessor
and the Lessee agree that neither the Lessor nor the Lessee or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate that
any particular individual or group of individuals, entity or entities, have entitlements or
benefits under this Lease separate and apart, inferior to, or superior to the community in
general or for the purposes contemplated in this Lease.
Section 20.16 Contingencies. Initial Lessee's obligations to proceed with and
complete the project under this Lease Agreement is contingent upon Initial Lessee
obtaining construction financing and all necessary permits to build the Affordable Housing
Unit(s) described herein within the time specified. Termination of the Lease under such
circumstances shall constitute effective, full and immediate conveyance and assignment to
Lessor of all of the Demised Premises, improvements, interests in and materials and
redevelopment rights to and associated with the Demised Premises and the Project, subject
to mortgagee protection as provided herein.
Section 20.i7 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 i Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in Monroe
County. There are no measures that can guarantee against mold, but additional
information regarding mold and mold prevention and health effects may be obtained from
your county health unit or the EPA or CDC. Lessee and Sublessees accept responsibility to
inspect for mold and take measures to reduce mold. Lessor shall not be responsible for
mold testing for any persons purchasing, leasing or 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 i4 Subsequent Changes in Law or Regulation. Where a change can
reasonably be applied to benefit, enhance or support Lessor's affordable housing goals,
objectives and policies, Lessor shall have the right to claim the benefit from any subsequent
change to any applicable state or federal law or regulation that might in any way affect this
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Lease, the Affordable Restrictions, any Related Agreements or their respective application
and enforceability, without limitation. In such instance, this Lease shall be construed or,
where necessary, may be reformed to give effect to this provision.
Section 20.2o Government Purpose. Lessor, through this Lease and the Affordable
Restrictions, furthers a government housing purpose, and, in doing so, expressly reserves
and in no way shall be deemed to have waived, for itself or its assigns, successors,
employees, officers, agents and representatives any sovereign, quasi -governmental and any
other similar defense, immunity, exemption or protection against any suit, cause of action,
demand or liability.
Section 20.21 Breach of Related Agreements/Remedies. To the extent that any
purchase and sale or Related Agreement relating to the Demised Premises incorporates,
relates to and/or is contingent upon the execution of and/or any performance under this
Lease, any material breach under such other agreement shall be a material breach of this
Lease and any material breach under this Lease shall be a material breach of such other
agreement. Moreover, the parties agree that any remedy available for any breach under this
Lease or any Related Agreements shall be cumulatively or selectively available at Lessor's
complete discretion, with any election to avail itself or proceed under any particular
remedial mechanism in no way to be construed as a waiver or relinquishment of Lessor's
right to proceed under any other mechanism at any time or in any particular sequence.
Section 20.22 Supplemental Administrative Enforcement. Lessor, or its
appropriate agency, may establish under the Affordable Restrictions, as amended from
time to time during the Term of this Lease, such rules, procedures, administrative forms of
proceedings and such evidentiary standards as deemed reasonable within Lessor's
legislative prerogative, to implement enforcement of the terms of this Lease and similar
leases and the Affordable Restrictions. Such forums may include but in noway be limited
to use of Code Enforcement procedures pursuant to Chapter 162, Florida Statutes, to
determine, for and only by way of one example, and not as any limitation, the facts and legal
effect of an allegedly unauthorized "offer to rent", or, for another example, an unauthorized
"occupancy." However, nothing herein shall be deemed to limit Lessor, Initial Lessee or any
mortgagee from access to an appropriate court of competent jurisdiction where the
resolution of any dispute would be beyond the competence or lawful jurisdiction of any
administrative proceeding.
Section 20 23 Exceptions to Lease/Rental Prohibition. Under this Lease rental of
Affordable Housing Units is not prohibited. Lessor or its designee, in its sole discretion,
shall have the right to adopt as part of future Affordable Restrictions provisions to allow
Sublessees the limited privilege to rent or lease their Affordable Housing Units to qualified
persons. Requests for such approval shall be made in accordance with such procedures
Lessor may in the future choose to adopt. It is contemplated, though not promised or
required, that certain limited rental provisions may be adopted in the future for
circumstances such as, for example, but without limitation:
(a) A Sublessee's required absence from the local area for official military duty.
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(b) An illness that legitimately requires a Sublessee to be hospitalized for an
extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty (30) days.
Lessor, in its discretion, shall have the right to amend, modify, extend, rescind,
decrease or terminate any such exceptions under this Section 20.23 or the Affordable
Restrictions at any time.
Section 20.24 Lessor's Duly to Cooperate. Where required under this Lease or
Related Agreement, Lessor shall, to ensure the implementation of the public affordability
purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee,
Sublessees, mortgagees, title insurers, closing agents, government agencies and the like
reganUng any relevant terms and conditions contained herein.
By.
►JESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
the day and year above written.
LESS
KAGE, CLERK MO E COUNTY
le�
Mayor Georg Neugent
Witnesses:
24 rf X. ae dcr
Print Name
(2),��
Print Name
LESSEE
HABITAT FOR HUMANITY OF THE
MIDDLE KEYS COMMUNITY LAND
TRUST,INC.
Bruce Ferraro i ent
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before
"'A r Z(1 , 2009, by Bruce Ferraro, as President of Lessee,
me, or who ]has produced a
L�
Notary Public
4''*vISTOPHER B. WALDERA
OMMISSION # DD806542PIRES August 09, 2012
f:'.' o. S..'.,.
Page 38 of 43
me this
who is [01
as
� � r
aV.Mf C
to C
Gj
rn
0
MONROE COUNTY O FORM!
APPROVED
SUSAN M• RIMSLEY
ASSISTANT COUNTY ATTORNEY
Date
EXHIBIT A
LEGAL DESCRIPTION
Lot 2, Block 2, Paraiso Estates, according to the Plat thereof as recorded in Plat Books,
Page 2 of the Public Records of Monroe County RE#00343090-000000
Page 39 of 43
EXHTBTT B
PROPERTY DEPICTION
NOT REQUIRED FOR TWO UNITS
BUILD ON SITE ACCORDING TO PERMITS
Page 40 Of 43
Documcnl PreparLd by and Mum w
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
This Agreement is made as of 200 by and between
("Lessor") and ("Lessee").
WHEREAS, Lessor and Lessee have entered into a Lease dated for
Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book _ Page
, and rent shall be paid according to the commencement date each year, and
WHEREAS, the Commencement Date, as further defined in Article Ill of the Lease, has
occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to the
Lease.
NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set forth
below is true and accurate.
Commencement Date: . 2009 Initial Term Expiration Date; .2109
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR:
By:
MAYOR
LESSEE:
By:
Title:
Print Name:
ATTEST:
DANNY L. KOLHAGE, CLERK State of Florida
County Monroe
The foregoing instrument was acknowledged before
me on this day of by
who is personally known to me or
who has produced
as identification.
NOTARY SIGNATURE AND SEAL
Page 41 of 43
TO:
DATE:
EXHIBIT D
LETTER OF ACKNOWLEDGEMENT
Initial Lessee, or its assigns
Address of Initial Lessee, or its assigns
This letter is given to
in regard to the Affordable Housing Unit that 1 am purchasing.
following:
as an acknowledgement
1 hereby acknowledge the
• That 1 meet the requirements set forth in the Affordable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my benefit, the benefit of future
similarly situated persons and for the benefit of Monroe County.
• That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore 1 will be subleasing a parcel of land.
• That my legal counsel, , has explained to me the
terms and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction. If I have not had legal counsel, I state here that I have had an
opportunity to have obtain such counsel, understand its importance, and have
knowingly proceeded to closing without it.
• That I understand the terms of the Lease and how the terms and conditions set
forth therein will affect my rights as an owner of the Affordable Housing Unit,
now and in the future.
• That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I
understand and agree for myself and my successors in interest that Monroe
County may change some of the Affordable Restrictions over the 99-year term of
the Lease and that I will be expected to abide by any such changes.
• That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
• That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it, and that the timing and procedures for sales will be restricted.
• That my lease prohibits me from severing the improvements from the real
property.
• That my family and I must occupy the Affordable Housing Unit and that it cannot
Page 42 of 43
he rented to third pasties without the written approval of the Lessor.
1 understand that in the event that I dic, my home may be dc%,ised and occupied by
my wife, my children or any other heirs so long as they meet the requirements for
affordable housing as set forth in the Lease.
That I have reviewed the terms of the Lease and transaction documents and that I
consider said terms fair and necessary to preserve affordable housing and of
special benefit to me.
1 hereby warrant that 1 have not dealt with any broker other than
in connection with the consummation of the
purchase of the Affordable Housing Unit.
Occupant Signature Occupant Signature
Page 43 of 43