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Item H7 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 2 L 2009 Division: Growth Management Bulk Item: Yes -1L No Department: Staff Contact PersonlPhone #: Susan Grimsley Ext. #2517 AGENDA ITEM WORDING: Approval of the second amendment to the Ground Lease Agreement and to the Commencement Date Agreement between Monroe County and Islander Village, LLC to extend the term to 100 years and eliminate the annual $10.00 rent in order to comply with FS 196. 199(2)(b ) to carry out the original intent of the parties in regard to the property tax liability of the unit owners and to benefit the unit owners by allowing a homestead exemption and all other exemptions allowed by law. ITEM BACKGROUND: The property appraiser discovered that the lease terms inaccurately reflect the intent of the parties and inadvertently tax the improvements (homes) on the property as tangible personal property instead of real property. The benefits of homestead and other statutory exemptions are not available because of the structure of the lease. The improvements on the property will be assessed as real estate if the lease is for 100 years or more instead of 99 years, and if no rental is paid by the Lessee or subsequent lessees. This protects the County and the Tax Collector by allowing delinquent taxes to be collected using the tax certificate method. PREVIOUS RELEVANT BOCC ACTION: July 19,2006 - BOCC approved Agreement for Sale and Purchase April 18, 2007 - BOCC approved 99 year Ground Lease Agreement June 18, 2008 - BOCC approved Commence Date Agreement June 17,2009 - BOCC approved 1 st Amendment to the Ground Lease Agreement CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approval TOTAL COST: n/a INDIRECT COST: BUDGETED: Yes _No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: AMOUNTPERMONTH_ Year REVENUE PRODUCING: Yes No APPROVED BY: County Atty -L OMB/Purchasing _ Risk Management _ DOCUMENTATION: Included x Not Required_ DISPOSITION: AGENDA ITEM # PREPARED BY AND RETURN TO: SPOTTSWOOD, SPOTTSWOOD AND SPOTTSWOOD 500 FLEMING STREET KEY WEST, FL 33040 SECOND AMENDMENT TO GROUND LEASE AGREEMENT AND AMENDMENT TO COMMENCEMENT DATE AGREEMENT THIS SECOND AMENDMENT TO GROUND LEASE AGREEMENT AND AMENDMENT TO COMMENCEMENT DATE AGREEMENT, dated this _ day of ,2009, by and between MONROE COUNTY, a political subdivision of the State of Florida (hereinafter referred to as "Lessor"), and ISLANDER VILLAGE, LLC, a Florida limited liability company (hereinafter referred to as "Lessee"): WITNESSETH WHEREAS, Lessor and Lessee entered into that certain 99-year Ground Lease Agreement dated the 18th day of April 2007, for the property more particularly described therein (hereinafter "Property") for the construction and development of eighty-nine (89) affordable housing units (the "Affordable Housing Units"), said Lease being recorded in Monroe County Public Records at Official Records Book 2301, Page 365, as amended by that certain First Amendment to Ground Lease Agreement dated June 17,2009 and recorded at Official Records Book 2422 at Page 1333 (collectively hereinafter "Lease"); and WHEREAS, the parties entered into a Commencement Date Agreement dated the 18th day of June, 2008, confirming various dates relating to the Lease, recorded in the Monroe County Public Records at OR Book 2368, at Page 596; and WHEREAS, it was the agreement of the parties that Lessor would not charge Lessee (or its assigns or sublessees) rent, but in drafting the Lease an Annual Base Rent in the amount of TEN AND NOll 00 DOLLARS ($10.00) was included in the Lease as said language was considered usual and customary for consideration in a deed or lease but it was not the intent of the parties for there to be any rent paid; and, WHEREAS, the parties wish to correct this error in the Lease; and WHEREAS, Lessor and Lessee are authorized to amend the Lease pursuant to Section 20.03 so long as said amendment is in writing signed by the Lessee and Lessor; and, WHEREAS, Lessor and Lessee desire to amend the Lease to provide that there shall be no rent payable under the Lease, the intent being that the Lease will comply with Florida Statute 196. 199(2)(b ); and, WHEREAS, Lessor and Lessee desire to amend the Lease to also provide that the initial term shall be one hundred (100) years; and WHEREAS, the parties desire to enter into this Second Amendment to Ground Lease Agreement and Amendment to Commencement Date Agreement (hereinafter "Agreement") pursuant to the terms set forth herein. NOW, THEREFORE, in consideration of 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. reference. The recitals contained herein are true and correct and incorporated herein by 2. The Lease is presently valid and in full force and effect. 3. Section 3.01 of the Lease is hereby amended to provide that the term of the Lease shall be one hundred (100) years, commencing on the Commencement Date, and ending one hundred (100) years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter provided (the "Termination Date"). 4. Pursuant to the Commencement Date Agreement referenced above, the Commencement Date was May 29,2008; therefore, the Commencement Date Agreement is hereby amended to provide that the initial term expiration date shall be May 28,2108. 5. Section 4.01 of the Lease is hereby amended to provide that there shall be no rental payments due pursuant to this Lease so that the leasehold (and subsequent subleases) shall be taxed as real property pursuant to and in compliance with Florida Statute 196.199(2)(b). Therefore, Exhibit D to the Lease is hereby deleted. Additionally, the definition of "Rent" in Article I of the Lease is hereby deleted and notwithstanding anything contained in the Lease to the contrary there shall be no annual base rent due. Lessee and/or Sublessee shall remain liable for the amounts set forth in Article VI, Article VII, Article X, Article XI, Article XII, of the Lease as well as any and all obligations set forth in the Lease other than said annual base rent defined in Section 4.01. 6. The effective date of the amendments set forth herein shall be April 18, 2007 to reflect the original intent of the parties; therefore, there shall be retroactive application. 7. Except as expressly modified by this Amendment, all terms and conditions of the Lease remain in full force and effect, binding upon the parties. 8. Each party agrees that they have authority to sign this Agreement on behalf of each party and represents and warrants that such person has the full right and authority to enter into this Agreement on behalf of such party and to fully bind such party to the terms and obligations of this Agreement. 2 IN WITNESS WHEREOF, the undersigned executed this Second Amendment to Ground Lease Agreement and Amendment to Commencement Date Agreement this _ day of _,2009. LESSOR: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By: By: , Mayor , Deputy Clerk Monroe County Attorney Approved as to Form: /O'cI-09 Attorney STATE OF FLORIDA COUNTY OF MONROE BE IT KNOWN, That on the day of , two thousand and nine, before me, a Notary Public in and for the State of Florida, County of Monroe, duly commissioned and sworn, personally came and appeared , as Mayor of Monroe County Board of County Commissioners, to me personally known or has produced as identification. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal of office the day and year last above written. [Seal] NOTARY PUBLIC 3 LESSEE: ISLANDER VILLAGE, LLC, a Florida limited liability company WITNESSES AS TO LESSEE: Signed, sealed and delivered By: Edwin O. Swift, III, Manager Witness as to Lessee Witness as to Lessee STATE OF FLORIDA COUNTY OF MONROE BE IT KNOWN, That on the day of , two thousand and nine, before me, a Notary Public in and for the State of Florida, County of Monroe, duly commissioned and sworn, dwelling in the City of Key West, personally came and appeared EDWIN O. SWIFT, III, as Manager ofIslander Village, LLC, a Florida limited liability company, to me personally known or has produced as identification. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my seal of office the day and year last above written. [Seal] NOTARY PUBLIC 4