Item O11BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: September 20, 2006 - MAR Division: County Attorney
Bulk Item: Yes _ No X Department:,County Attorney_
Staff Contact Person: Jerry Sanders
AGENDA ITEM WORDING:
Approval of 99-year leases from Monroe County to developer investment entities associated with the
Carlisle Group, Sea Grape Apartments, Ltd, and Sea Grape II, Ltd., respectively, for a site in Marathon
(RE #103560-000200) to be purchased by the Monroe County Land Authority and conveyed to the
County for its Keys -wide affordable housing programs.
ITEM BACKGROUND:
The Sea Grape Apartments site is located near MM 50.5 on the Oceanside in Marathon. The Carlisle
Group submitted this site in response to the BOCC's request for proposals for purchase/leaseback
affordable housing sites. Carlisle proposes to develop the site with a total of 84 affordable units in two
phases using construction financing from the Florida Housing Finance Corporation. Acquisition of the
property will involve the following steps: 1) the Land Authority will purchase the site (both Phase I and
Phase II parcels); 2) the Land Authority will transfer title to the BOCC; and 3) the BOCC will lease the
property back to the Sellers for development.
The draft leases attached to this summary on or about September 5, 2006 are not final. The final
version shall be submitted to the BOCC for final approval by the date of the meeting, it being expressly
a condition of the Land Authority's purchase contracts that a lease acceptable to the County be reached
with the proposed developers.
PREVIOUS RELEVANT BOCC ACTION:
On 3/15/06 the BOCC approved Ordinance 005-2006 establishing the purchase and leaseback program
for affordable housing.
CONTRACT/AGREEMENT CHANGES: None
STAFF RECOMMENDATIONS: Approval
TOTAL COST: N/A
COST TO COUNTY: N/A
BUDGETED: Yes
SOURCE OF FUNDS:
No
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DIVISION DIRECTOR APPROVAL:
TTORNEY
DOCUMENTATION: Included X Not Required.
DISPOSITION: AGENDA ITEM #
Revised 8/06
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
SEA GRAPE APARTMENTS, LTD.
"LESSEE"
DATED .20o6
C:\Documents and Settings\All Users\Documents\All Practice\AA Legal Matters\M\A Monroe County
Workforce Task Force\Leases\Sea Grape\Sea Grape Apartments, Ltd\Sea Grape Apartments, Ltd -
AFFORDABLE 99 YEAR LEASE v3.doc9/6/2006 8:16 AM
Table of Contents
Article
Title
Page No.
I
Definitions
3
II
Demised Premises
6
III
Term
7
IV
Rent
7
V
Non -Subordination
8
VI
Payment of Taxes
9
VII
Mechanics' Liens
11
VIII
Governing Law, Cumulative Remedies
12
IX
Indemnification of Lessor
13
X
Insurance
14
XI
Insurance Premiums
18
XII
Assignment
18
XIII
Condemnation
25
XIV
Construction
26
XV
Mortgage Financing
28
XVI
Default
33
XVII
Repair Obligations
36
XVIII
Additional Covenants of Lessee, Lessor
36
XIX
Representations, Warranties of Title and Quiet
38
Enjoyment
XX
Miscellaneous
38
Page 2 of 53
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Key West, Monroe County, Florida, on this
day of , 2 oo6, by and between MONROE COUNTY (referred to as
the "Lessor") and SEA GRAPE APARTMENTS, LTD., Florida limited partnership
(referred to as the "Lessee").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at
, City of Marathon, Monroe County, Florida, and more particularly
described on the attached Exhibit "A" (hereinafter "Property"); and,
WHEREAS, it is Lessor's intent that the Propertybe developed to provide affordable
housing for Monroe County; and,
WHEREAS, Lessee desires to develop the Property for rental use fifty six (56)
affordable housing units (provided allowed by County regulations and hereinafter the
"Affordable Housing Units") for qualified owner -occupants using, among other financing
sources, those made available through Section 42 Low -Income Housing Tax Credit program
(LIHTC).; and,
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
Definitions
"Affordable Housing Unit" shall mean a residential housing unit that meets the
moderate or lesser income requirements set forth in Chapter 9.5 and any other 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 a term of ninety-nine (99) years. However,
nothing in this Lease shall permit the Lessor to require a Lessee to comply with provisions
of local ordinances that are in conflict with LIHTC requirements applicable to the financing
of the project.
"Affordable Restrictions" shall mean the affordable or employee housing regulations
Page 3 of 53
as set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land
Development Regulations or County Code, as hereinafter amended, except that in no event
shall the Lessor decrease the lawfully permissible sales price for an Affordable Housing Unit
to less than the specified sales price 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
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 an Affordable Housing Unit. However,
Lessor may restrict Affordable Housing Unit resales and rentals to use as "Employee
Housing" as defined in the Affordable Restrictions, as amended from time to time.
Moreover, Lessor may establish in its Affordable Restrictions "means" or "assets" criteria
that limit potential buyer or rental 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 an interpretation that
ensures long term affordability benefits for the respective housing resources inure to the
benefit of Monroe County, its economy and its community character. In all cases of conflict
between local and federal LIHTIC rental guidelines, Lessee shall be entitled to adhere to
governing federal requirements without being deemed in breach of this Lease or the
Affordable Restrictions.
"Association" shall mean any condominium, homeowners or similar community
association customarily used in planned developments (whether or not expressly
contemplated or authorized herein) to manage certain aspects of community or planned
development living (e.g., infrastructure management, rules and regulations, enforcement
mechanisms and recreational facilities).
"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" and depicted on attached Exhibit "B". 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.
Page 4 of 53
"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 SEA GRAPE II, LTD., developer and future manager of the
Affordable Housing Units.
"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, that any
limitations, restrictions and/or other covenants of any nature, whether established
pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of
enforceable covenants running with the land, equitable servitudes and all other cognizable
legal and equitable real property conventions so as to ensure the overall public affordable
housing purposes intended to be served, including appropriate application of cumulative
enforcement theories.
"Lease Year" shall mean the twelve (12) month period beginning on the
Commencement Date and each twelve (12) month period thereafter throughout the Term of
this Lease.
"Lessor" means MONROE COUNTY, or its assigns or designees. Lessor as used
herein and where the context requires, shall mean an agency or party designated by the
Lessor, by written notice to all parties, to administer or enforce some or any portion of the
provisions of this Lease or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns, including the
Association created by Initial Lessee for the Unit owners/tenants, as well as the individual
Unit owners/tenants.
"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 of the Affordable
Housing Units and creation of any required governing Association.
"Related Agreements" shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease and which
is recorded. Related Agreements made to apply to this Lease are set forth in Exhibit F.
"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
Page 5 of 53
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 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
effectuate qualified end -user, title, possession and/or use of Affordable Housing Units
developed on the Demised Premises. A Sublease, as used herein, regardless of final form
and substance, must be approved by the Lessor, which approval shall not be unreasonably
withheld.
"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(s)
acquires( ) or renews their interest(s) in the Affordable Housing Unit, qualifies for
"Affordable Housing" as defined under Chapter 9.5 of the Monroe County Code and who is
gainfully employed at the time of their rental. Additionally, except as may be otherwise
permitted by this Lease, in order to remain eligible to renew their sublease or rental
agreement and to reside in their Affordable Housing Unit into retirement, in addition to
complying with any otherwise applicable provisions in the Affordable Restrictions, renters
or tenants of all Affordable Housing Units must remain gainfully employed except as may
be otherwise exempted by law, including the Affordable Restrictions.
"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.oi Lessor's Demise. Upon the terms and conditions hereinafter set forth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial Lessee of these covenants and the terms and conditions of any Related
Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and
demise to the Initial Lessee and the Initial Lessee hereby leases from the Lessor, the
Page 6 of 53
following described premises, situate, lying and being in Monroe County, Florida:
See Attached Exhibits "A" and "B"
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 any Related
Agreements.
ARTICLE III
Term
Section �.oi Term. To have and to hold the Demised Premises for a term of ninety-
nine (99) years commencing on the Commencement Date, and ending ninety-nine (99)
years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter
provided (the "Termination Date"). Lessee shall be given possession on the Effective Date
and the terms and conditions set forth herein shall be binding on the parties as of the
Effective Date. Lessee shall have the right to occupy the Demised Premises as of the
Effective Date in order to allow Lessee to commence construction, as well as other activities
related to the development and construction of the Project. As herein set forth, the Term
will not commence until the first Affordable Housing Unit is completed and a certificate of
occupancy has been issued for said first Affordable Housing Unit, said date to be evidenced
by the Commencement Date Agreement that the parties will execute in substantially the
same form as that set forth in Exhibit C hereto, upon completion of construction of the first
Affordable Housing Unit.
ARTICLE IV
Rent
Section 4.oi 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
Page 7 of 53
Landlord said Annual Base Rent on the first day of the second month of each Lease Year
throughout the term of this Lease, provided that upon transfer of control of an Association
by Initial Lessee as may be authorized under this Lease, Lessor agrees to provide written
notice of the Annual Base Rent to the Association at least ten (1o) business days prior to
said Rent being due, which notice may be in the form of a single schedule of all rental due
dates under the Term of the Lease duly recorded in the Public Records of Monroe County,
Florida, with a copy of such schedule provided to the Lessee and Association. The form of
such notice may be similar to that in Exhibit D, hereto.
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.o�. 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.o4. 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 (3o) days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge 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 said instrument being dishonored.
ARTICLE V
Page 8 of 53
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.oi Lessee's Obligations. As additional Rent, 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
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 6.0� Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
Page 9 of 53
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.o4 Mode of Pam. 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 (3o) days
before the tax, itself, would become delinquent in accordance with the law then in force
governing the payment of such tax or taxes. If, however, the Lessee desires to contest the
validity of any tax or tax claim, the Lessee may do so without being in default hereunder,
provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County, one and one half (11/2) times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
thereof shall have been determined, and which written notice and bond or equivalent cash
shall be given by the Lessee to the Lessor, not later than sixty (6o) days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6.o5 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,
pay the same and the amount or amounts of money so paid, including reasonable attorneys'
fees and expenses which might be reasonably incurred because of or in connection with
such payments, together with interest on all such amounts, at the highest rate allowed by
law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the
payment thereof may be collected or enforced by the Lessor in the same manner as though
such amount were an installment of Rent specifically required by the terms of this Lease to
be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment
thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to
pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding
the foregoing, Lessee shall have the right to contest any taxes and assessments levied
against Lessee; 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
Page 10 of 53
assessment measures and collection remedies lawfully available to any taxing authority.
Section 6.o6 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.o7 Proration. The foregoing notwithstanding, the parties hereto
understand and agree that the taxes for the first year (beginning on the Effective Date) and
the last year of the Term shall be prorated proportionately between the Lessor and the
Lessee.
Section 6.o8 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.
Section 7.02 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
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 (3o) days after the Lessee or Sublessee shall have been given written notice of such a
Page 11 of 53
claim having been filed, or within thirty (3o) 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 the 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 7.o3 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 mightbe 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.o4 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
required to, pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so paid, including reasonable attorneys' fees and expenses which might be
reasonably incurred because of or in connection with such payments, together with interest
on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to
the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or
enforced by the Lessor in the same manner as though such amount were an installment of
Rent specifically required by the terms of this Lease to be paid by the Sublessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement
therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall
not waive the default thus committed by the Sublessee.
ARTICLE VIII
Governing Law, Cumulative Remedies
Page 12 of 53
Section 8.oi 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 g.oi Indemnification by 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 maybe made against the Lessor or against the Lessor's title in the Demised Premises,
arising out of, or in connection with, or in anyway related to the Demised Premises, except
to the extent such claims may be caused by the gross negligence or intentional misconduct
of the Lessor (or its agents or employees in the conduct of work for or at the direction of the
Lessor) with respect only to any duty or obligation Lessor expressly assumes with respect to
any portion of the Demised Premises, none of which duties and obligations are so assumed
herein. 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
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or property in, about or relating to the Demised Premises. Lessee, on its and its assignees'
and their successors in interests' behalves, including any future Sublessees, or grantees or
licensees of the Initial Lessee or the Association, 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 9.02 Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X insuring
the Lessee against any and all claims and demands made by any person or persons
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as
their respective interests may appear, as the persons insured by such policies. Any loss
adjustment shall require the written consent of both the Lessor and Lessee.
Section g.o� 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 Property 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 joint 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
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case may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or
other casualty for which insurance money shall be payable and shall be paid out by the
Lessor and the Lessee from said joint account from time to time on the estimate of any
reliable architect licensed in the State of Florida officially overseeing of such reconstruction
and repair, certifying that the amount of such estimate is being applied to the payment of
the reconstruction or repair and at a reasonable cost therefor; provided, however, that the
total amount of money necessary for the reconstruction or repair of any building or
buildings destroyed or damaged has been provided by the Lessee for such purpose and its
application for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as 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 from the date of such damage or destruction,
rebuild and repair the same in such manner that the buildings or improvements so rebuilt
and repaired, and the personal property so replaced or repaired, shall be of the same or of a
value higher than were the buildings or improvements and the personal property prior to
such damage or destruction, and Lessee shall diligently prosecute the reconstruction or
repairs without delay and have the same rebuilt and ready for occupancy as soon as
reasonably possible after the time when the loss or destruction occurred. The 15-month
period 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 (1o)
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 this Lease has been
assigned to an Association contemplated or authorized under this Lease or the Affordable
Restrictions, the Association must obtain any necessary vote to terminate. 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
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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.
Section 10.02 Commercial General Liability Insurance. The Initial Lessee and the
Association (upon assignment to the Association) 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 (1) 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.o� 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 in accordance with the rules of the
American Arbitration Association. 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.o5 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
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the mortgagee, then such payment may be made, but in such event, it shall still be
obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the
manner set forth in this Article to assure complete payment for the work of reconstruction
and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are
properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by
Sublessee or Lessee.
Section 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. In the case of the Lessee not entering into the reconstruction or repair
of the building or buildings within a period of six (6) months from the date of payment of
the loss, after damage or destruction occasioned by fire, windstorm, flood or other cause,
and diligently prosecuting the same with such dispatch as may be necessary to complete the
same in as short a period of time as is reasonable under the circumstances after the
occurrence of such damage or destruction, then the amount so collected, or the balance
thereof remaining in the joint account, as the case may be, shall be paid to the Lessor and it
will be at the Lessor's option to terminate the Lease, unless terminated by Lessee within the
last ten (1o) years of the Lease as set forth above, and retain such amount as liquidated and
agreed upon damages resulting from the failure of the Lessee to promptly, within the time
specified, complete such work of reconstruction and repair.
Section io.o7 Direct Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and oo/ioo Dollars
($1oo,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.
Section io.og Subsequent Lessees, Assignees, Sublessees and Grantees.
Notwithstanding anything contained herein to the contrary, in the event an authorized
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Association chooses not to obtain insurance coverage to protect against loss or damage by
fire, flood and windstorm for the individual Affordable Housing Units and therefore does
not charge the Sublessees for said coverage as part of the Association fees to be paid by the
individual Unit Owners (if this project is expressly authorized as a home ownership
project); then, in such event Sublessees shall secure the above -described insurance
coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled
to require replacement cost and other customary and reasonable insurance coverage(s) at
least but only to the full replacement value of any Sublessees' and/or any governing
Association's insurable interest in the Demised Premises. Any parties who subsequently
become holders of any title or possessory interest to a portion of the Demised Premises,
shall upon request provide, in a form satisfactory to Lessor, proof of customary and
reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor
as set forth in this Article X, at least to the extent and value of that subsequent interest
holder's insurable interest. The same or similar procedures for the use and application of
insurance proceeds as set forth above maybe required for subsequent interest holders and
the same remedies available to Lessor for Initial Lessee's failure to comply with such
insurance requirements shall be available to Lessor with respect to any future interest
holders. Future interest holders (including all Sublessees) shall name Lessor as an
additional insured on any required insurance policies.
ARTICLE XI
Insurance Premiums
Section ii.oi Insurance Premiums. The Lessee shall pay premiums for all of the
insurance policies which the Lessee is obligated to carry under the terms of this Lease. In
the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the
right, but not the obligation, without notice to Lessee, to procure such insurance and/or pay
the premiums of such insurance, in which case Lessee shall repay Lessor immediately upon
demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies
with respect to procurement of such insurance and/or payment of such insurance
premiums in the event a future subsequent partial interest holder (e.g., Sublessee,
Association) fails to obtain and pay for the necessary insurance.
ARTICLE XII
Assi n�/Transfer
Section 12.oi Assignment by Initial Lessee. Without the written consent of Lessor,
Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable
Housing Units are to be developed as units for rent to moderate or lesser income qualified
third parties, as defined in the Affordable Restrictions. Therefore, the Affordable Housing
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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.
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Mid-
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Page 19 of 53
Formatted: Double strikethrough
_ _ _ _ _ _ _ _ - - Formatted: Double strikethrough
-----------------
Initial Lessee may
subsequently be authorized by Lessor to assign its interest in this Lease for any portions of
the Demised Premises to a homeowners', condominium or similar Association to be created
by the Initial Lessee. Any such Association and its related declaration, articles of
incorporation, bylaws and any other governing documents, as may be amended, shall first
be approved by Lessor or its designee for compliance with the goals, purposes and intent of
this Lease and the Affordable Restrictions, which approval shall not be unreasonably
withheld. Where such documents comply with the foregoing, Lessor shall join in any
community ownership governing documents as may be required by Initial Lessee in order
to conform its planned unit community governance to state law. No governing document
related to such Association shall materially alter or impair the terms and conditions of this
Lease or the applicability of the Affordable Restrictions. Lessor shall have fifteen (15)
business days from receipt of said documents to review and object to any contents thereof.
In the event Lessor fails to provide written notice of its consent or denial in regard to said
documents, said failure shall be deemed acceptance of the documents.
, ,
Lessor shall have the right to assign any of its duties
and rights related to the assignment of Subleases, i.e. finding a qualified
renters in the case of rental units (unless the rental units are owned by Initial
Lessee (or a Lessor -approved subsequent assignee of Initial Lessee's interests) and Initial
Lessee chooses to manage the retained units, then in such event Initial Lessee shall have the
right to find qualified renters for said rental units where that right is not in conflict with the
Affordable Restrictions as may they may be automatically subordinated to LIHTC
requirements), to the Monroe County Housing Authority, or to any other governmental
entity or profit or non-profit organization designated and approved by Lessor. In the event
such duties or rights are assigned, reference to "Lessor" in this Section 12.01 shall also refer
to any assignee. Lessee agrees to allow Lessor or its designee to provide lists of potential
qualified renters of the Affordable Housing Units.
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
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own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record only where Lessor subsequently provides authority to do so in writing
or under the Affordable Restrictions. 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. If Lessor is entitled to a reservation for initial purchase or assignment of the rights
to purchase all or a portion of the newly completed Affordable Housing Units, such right
and related procedures will be set forth in Exhibit F to this Lease.
Section 12.o� Assignment/Transfer by Sublessees. Where Lessor subsequently
provides authority in writing or under the Affordable Restrictions for the Affordable
Housing Units to be sold as homeownership units, at such time as any individual Unit
Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable Housing
Units and interests, the Sublessee shall be required to follow the procedures set forth herein
and any procedure that may be set forth in the Affordable Restrictions, and any conveyance,
transfer or other disposition and the acceptance of such transfers shall be automatically
deemed an agreement to the conditions set forth herein.
Section 12.o4 Required Notice of Restrictions. Any conveyance, lease, assignment,
grant or other disposition of any interest made with respect to any portion of the Demised
Premises, including but not limited to any recorded Association governing documents,
other 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 and the first recorded
page of any recorded Association governing documents affecting the respective portion of
the Demised Premises shall be set forth in the Notice of Restrictions. Any instrument of
conveyance, lease, assignment or other disposition made without following the notice
procedures set forth herein shall be void and confer no rights upon any third person, though
Page 21 of 53
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 12.o5 Follow-on Sales and Assignments of Ground Lease Requirements;
Right of First Refusal. Unless otherwise subsequently authorized in writing or by the
Affordable Restrictions or unless otherwise as set forth in subsection e., below, or in
another provision herein, rentals of Affordable Housing Units are contemplated. However,
where Lessor subsequently provides authority in writing or under the Affordable
Restrictions for the Affordable Housing Units to be sold as homeownership units in order
for an owner or subsequent owner to sell their Affordable Housing Unit and assign their
Sublease they shall be required to comply with the following:
a. Sublessee shall notify the Lessor or its designee in writing of their desire to
sell the Affordable Housing Unit and assign the sublease, said notice
hereinafter referred to as a "Transfer Notice." The Transfer Notice shall
include the proposed purchase price for the Affordable Housing Unit, and any
other compensation permitted the Seller relating to the proposed sale, which
shall be in accordance with the Affordable Restrictions. Undisclosed
compensation to a Seller or to any other party is prohibited and where it is
found to have existed with respect to any transaction, the amount thereof
shall be recoverable in law and equity from any party to or facilitating and
benefiting from such transaction with knowledge thereof.
b. Lessor shall have for thirty (3o) days from the date of receipt of the written
Transfer Notice to exercise and/or to assign a right of first refusal granted
hereunder to purchase the Affordable Housing Unit or to find or identify to
the selling party in writing a qualified purchaser who meets the income and
other requirements for purchasing the Affordable Housing Unit.
Additionally:
1. The total sales price for all interests to be transferred shall be
the purchase price set forth in the Transfer Notice, which shall
not exceed the highest price permitted under the Affordable
Restrictions. All additional terms of the contract shall be
consistent with the Affordable Restrictions. Sublessee hereby
agrees to execute a contract with a pre -qualified purchaser
identified by the Lessor (or the Lessor if it exercises its right of
first refusal) and to cooperate with reasonable closing
procedures not in conflict with the Affordable Restrictions.
2. In the event Lessor finds a qualified purchaser, Lessor will
assist in coordinating the closing on the Affordable Housing
Unit. The closing shall be scheduled to occur within seventy-
five (75) days from the effective date of the contract for the sale
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of the Affordable Housing Unit, unless extended by the mutual
agreement of the parties and Lessor. Should Lessor exercise its
right of first refusal, it shall close under the same schedule set
forth herein.
C. In the event Lessor elects not to purchase or fails to identify a qualified
purchaser who enters into a purchase contract within thirty (3o) days and
who closes as provided above, and provided that Sublessee has fully complied
with all required procedures set forth in the Lease and the Affordable
Restrictions, Sublessee shall be entitled to sell the property to a qualified
purchaser pursuant to the Affordable Restrictions and the terms set forth in
the complying Transfer Notice. In this event, Sublessee shall allow Lessor to
review and approve all proposed contract terms to ensure that the terms and
the proposed purchaser meet the requirements for purchasing the Affordable
Housing Unit, which approval shall not be unreasonably withheld, delayed or
conditioned. Sublessee shall provide Lessor with a full copy of a written
purchase and sale contract (and all addenda) within three (3) business days
of full execution of each contract document, and all contracts shall state that
they and the proposed purchaser are subject to this Lease and the approval of
the Lessor. Lessor shall have fifteen (15) business days from receipt to review
the terms of the contract documents. In the event Lessor fails to provide
Sublessee with written approval or any written objections within fifteen (15)
business days from receipt of a contract document, Lessor shall be deemed to
have not objected to closing of the proposed transaction though not to have
waived enforceability of any applicable provisions of this Lease or the
Affordable Restrictions, whether or not any non-compliance may have been
apparent from or may have been indicated in documents provided. Sublessee
and the potential buyer shall also provide any other information Lessor
reasonably deems necessary to verify purchaser/Sublessee qualifications. All
purchase and sale contracts shall be deemed to be contingent on the buyer
and transaction being qualified under the Affordable Restrictions. Lessor
and the proposed parties to a transfer transaction may agree to additional
time periods necessary to verify full compliance with all aspects of the
Affordable Restrictions. In no case shall Lessor, or its designees, be deemed
to waive with respect to any party any requirement applicable to that party
under the Affordable Restrictions where it turns out that such requirement
was not in fact met, true or complied with. Lessor reserves, to itself and to its
designees, all legal and equitable rights it deems necessary or appropriate to
ensure that all portions of the Demised Premises are used for Affordable
Housing, the purpose for which they were intended, including but not limited
to termination of the sublease for any portion of the Demised Premises and
forcing sale and reassignment of any improvements thereon.
d. Lessor shall be deemed reasonable in withholding its approval for any
proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. After the
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Lessor has reviewed and approved a contract, Sublessee shall not have the
ability to amend the terms of the contract unless Sublessee obtains Lessor's
approval of the amendment as set forth in Paragraph c., above. The
Sublessee shall only transfer their interest to approved persons, as defined by
the Affordable Restrictions for moderate or lesser income, or to Lessor in the
event Lessor and Sublessee are unable to find a qualified purchaser, so long
as Lessor chooses to purchase the Affordable Housing Unit, in Lessor's sole
and absolute discretion. Additionally, after the expiration of the thirty (30)
day period described in Paragraph b. above, and before Sublessee has found a
qualified purchaser, Lessor may, but is not obligated to, continue the search
for a qualified purchaser. In the event Lessor finds and identifies a qualified
purchaser prior to Sublessee doing so, the procedure set forth in Paragraph
b.2., above, shall be followed.
e. Lessee and Sublessees are deemed to understand and agree that Lessor may,
in its absolute discretion, require that anyAffordable Housing Unit originally
sold as an affordable "ownership" and "occupancy" Affordable Housing Unit
which is made the subject of any unauthorized offer to rent, or which is
attempted to be or is actually rented absent specific written Lessor
authorization or as authorized in the Affordable Restrictions, be deemed to
have become the subject of an irrevocable offer to sell the Affordable Housing
Unit and thus subject to the right of first refusal provisions of this Article XII
and allow Lessor or its designee to purchase the Affordable Housing Unit at
the highest price permitted under the Affordable Restrictions. Lessor may
establish rental first right of refusal procedures similar to those set forth in
Paragraphs a. - d., above, for Affordable Housing Units to be used for
affordable rentals in accordance with the terms contained herein and in the
Affordable Restrictions (which procedures shall not, however, conflict with
Initial Lessee's intended management as a LIHTC property as contemplated
herein). In such case, a Sublessee may rent their Unit so long as all rental
agreements follow the guidelines and procedures set forth herein and in the
Affordable Restrictions and any LIHTC requirements, including but not
limited to providing Monroe County with a copy of the proposed rental
agreement for review and approval. Additionally, the rental agreement must
include a copy of any Association rules and regulations, as well as an
acknowledgement by the tenant that they will abide by the rules and
regulations of the Association, and Sublessee shall provide the Association
with a copy of said rental agreement to ensure compliance. Furthermore, no
Sublessee shall be authorized to enter into a rental agreement for an
Affordable Housing Unit containing a term greater than one (1) year, or
containing an automatic renewal term that would frustrate Lessor's rights or
continued affordability expectations established under this Lease or the
Affordable Restrictions. Additionally, in the event a tenant has been cited for
a violation of the rules and regulations of the Association more than twice in
any calendar year, Sublessee hereby agrees not to renew said lease without
first obtaining the approval of the Association Board of Directors, and said
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approval may be withheld in their sole and absolute discretion. 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.o6 Assignment by Lessor. This Lease is freely assignable by the Lessor,
and upon such assignment, the Lessor's liability shall cease and Lessor shall be released
from any further liability. In the event the ownership of the land comprising the Leased
Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any
other person or entity, this Lease shall not cease, but shall remain binding and unaffected.
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 E. 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 XI 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.o8 Administrative Fees. With the exception of the initial sales by Initial
Lessee, where the Lessor authorizes sales of units for individual home ownership purposes,
the Lessor or its designee shall be entitled to charge three and one-half percent (31/2 %) of
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the Purchase Price (gross compensation however described) for any transferred interest
(other than simple security mortgage interests or rental agreements) in which Lessor
identified the purchaser, as an administrative fee for coordinating the closing on any
Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of
closing. This fee does not include other seller and buyer closing related costs such as title
insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions,
insurance, homeowners' assessments, loan expenses and the like, or rental management or
processing fees for rental units. In the event Lessor was unable to identify a purchaser,
Lessor shall still be entitled to an administrative fee of one and one-half percent (11/2 %) of
the Purchase Price for review of the contract and assistance with coordinating the closing
on the Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its
designee shall be authorized to designate closing, escrow and title agents involved in all
transactions involving interests subject to this Lease. After the initial sale of each
Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from
time to time, establish, promulgate, revise and/or waive all or part of such fees related to
the administration of this Lease and any Subleases, but in no event may Lessor increase the
amount of the administrative fee to an amount in excess of three and one-half percent (31/2
%) for an owner who purchased his or her Affordable Housing Unit without actual,
constructive or regulatory notice of the potential applicability of a greater percentage fee.
ARTICLE XIII
Condemnation
Section 1:3.oi Eminent Domain; Cancellation. If, at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain, there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (3o) days after such award has been
made, then the matters in dispute shall be determined in accordance with the rules of the
American Arbitration Association. Such determination made by the arbitration 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 1�.02 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
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destroyed by the exercise of the right of eminent domain. In this connection, if the
condemnation is total, the parties agree that the condemnation award shall be allocated so
that the then value of the property, as though it were unimproved property, shall be
allocated to the Lessor, and the then value of the building or buildings thereon shall be
allocated between the Lessor and Lessee after giving due consideration to the number of
years remaining in the Term of this Lease and the condition of the buildings at the time of
condemnation.
ARTICLE XIV
Construction
Section 14.oi Requirement to Construct Project.
(a) Initial Lessee shall commence construction of the Project no later than one
hundred twenty (12o) days after the issuance of the building permits for the construction of
the Project, and shall substantially complete construction of all fifty six (56) Affordable
Housing Units within eighteen (18) months thereafter. The foregoing limitation of time for
the completion of the Project may be extended by written agreement between the parties
hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers,
letters or other materials in their possession or under their control where such information
is subject to public disclosure under the provisions of Chapter 119, F.S., or successor or
supplemental statutes. However, nothing contained herein shall be construed to render
documents or records of Initial Lessee or any other persons that would not be deemed
public records under Chapter 119 to be such records only because of this provision. Lessees
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
performance under this Lease in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said officials or of
the Lessor, shall, during the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, have access to and the right to examine and audit
any Records of the Lessee involving transactions related to this Agreement.
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
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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 of the Board of County Commissioners
of Monroe County or any of its agencies or departments. No statement contained in this
Lease shall be construed as to find the Initial Lessee or any of its employees, contractors,
servants or agents to be employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of County
employees. No covenant or agreement contained herein shall be deemed to be a covenant
or agreement of any member, officer, agent or employee of Monroe County or the Initial
Lessee or Lessee in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the Initial Lessee or Lessee shall be liable personally on this
Lease or be subject to any personal liability or accountability by reason of the execution of
this Lease.
(g) Initial Lessee agrees that it will not discriminate against any employees,
applicants for employment, prospective Sublessees or other prospective future subinterest
holders or against persons for any other benefit or service under this Lease because of their
race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap
where the handicap does not affect the ability of an individual to perform in a position of
employment, and to abide by all federal and state laws regarding non-discrimination.
14.02 Access to the Project and Inspection. The Lessor or its duly appointed agents
shall have the right, at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county
or State code or building inspectors, and the like, without limitation. Initial Lessee shall
permit building and code inspectors' access customary to the performance of their duties
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related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
14.o� 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. 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.
ARTICLE XV
Mortgage Financing
Section 15.o1 Construction Financing By Initial Lessee. Initial Lessee shall have the
right to mortgage its interests in the Demised Premises.
(a) The Initial Lessee shall have the right to encumber by mortgage or
other proper instrument Initial Lessee's interest under this Lease, together with all
buildings and improvements placed by Initial Lessee on the Demised Premises, to any
investor group or entity formed and lawfully authorized to participate in a LIHTC financing
arrangement, 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
specify the nature of each such default. Initial Lessee shall provide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises.
(c) In case the Initial Lessee shall default under any of the provisions of
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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.oi(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 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 Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
theretofore have received written notice; and (ii) an agreement by the leasehold
mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition, immediately
upon receipt bythe Lessor such new Lease, as provided in this Section 15.oi(d), the Lessor
shall be deemed to have executed, acknowledged and delivered to the leasehold
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mortgagee(s) an assignment of all Subleases covering the Demised Premises which
theretofore may have been assigned and transferred to the Lessor and all Subleases under
which Sublessees shall be required to attorn to the Lessor pursuant to the terms and
conditions of such Subleases or this Lease. Such assignment by the Lessor shall be deemed
to be without recourse as against the Lessor. Within ten (1o) 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 aO 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 of the Affordable Housing Units
contemplated herein. In no event shall anyprotections afforded aO 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 (1o) 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, 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
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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 a sale
of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold
mortgagee(s) in such instance or instances shall also be applicable to any such purchaser(s).
0) 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).
(1) In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the
release of any and all applicable portions of its (their) 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).
(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of 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.
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Section 15.02 Permitted Mortgages for Sublessees (Unit Owners). The individual
Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage
their interests in any Sublease, improvements or any associated portions of the Demised
Premises related to their interests in the individual Affordable Housing Units to a Federal
or State Savings Loan Association, Bank, Trust Company or similar lending institution,
subject to the following requirements:
(a) The mortgage(s) encumbering the Affordable Housing Unit shall not
exceed 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) For informational and record keeping purposes, Sublessees shall present
to Lessor (i) a copy of approval(s) for loans encumbering their Affordable Housing Unit
within five (5) business days after such loans are approved, and (ii) no sooner than five (5)
business days before the scheduled loan closing date, a copy of the owner's and/or any
lender's title insurance commitment. Lessor's failure to approve or object to any of the
foregoing documents prior to the closing of a relevant loan shall not preclude closing of the
relevant loan and shall not constitute an opinion or confirmation by Lessor that the
corresponding loans or title insurance policies comply with or conform to the requirements
of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of
Lessor's rights to enforce same;
(d) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery
of an assignment or other conveyance to a Sublessee's mortgagee in lieu of foreclosure with
respect to any real property subject to the provisions of this Lease, said mortgagee, or the
purchaser at foreclosure, shall comply with the provisions of Article XIL 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 12.05. 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
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(e) The parties recognize that it would be contrary to the fundamental
affordable housing concept of this Lease and an incentive to abuse Sublessee's
authorization to encumber its leasehold interest with a mortgage if Sublessee could realize
more in loan or sale proceeds than their permitted purchase or resale price as a result of
any transaction. Accordingly, Sublessee hereby irrevocably assigns to Lessor (or the
Monroe County Housing Authority or other Lessor designee) any and all net proceeds from
the sale of any interest in the Demised Premises remaining after payment of costs of
foreclosure and satisfaction of the lien of any mortgage which would have otherwise been
payable to Sublessee, to the extent such net proceeds exceed the net proceeds that Sublessee
would have received had the interests been sold pursuant to the Affordable Restrictions.
Sublessee hereby authorizes and instructs the mortgagee or any party conducting the
closing of a sale or through an unauthorized transfer to pay the amount of said excess
directly to Lessor. In the event, for any reason, such excess proceeds are paid to Sublessee,
Sublessee hereby agrees to promptly pay the amount of such excess to Lessor.
ARTICLE XVI
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 ten (1o) days written notice of such default and
Lessee fails to cure such default within ten (1o) days of receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section, Lessee shall not be deemed to be in default under this Lease unless Lessor shall
first give to Lessee 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 (3o) 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.
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 or other detrimental occurrence (such as, but not limited to, payment of insurance
premiums, actions to prevent construction or judgment lien foreclosures or tax sales), then
the Lessor is empowered to take such action and to request reimbursement or restoration
from the Lessee as appropriate.
Section 16.02 Default. In the event of any material breach of this Lease by Lessee,
Lessor, and after the necessary notice provided to Initial Lessee's leasehold mortgagee(s), in
addition to the other rights or remedies it may have, shall have the immediate right to
terminate this Lease according to law. Termination of the Lease, under such circumstances,
shall constitute effective, full and immediate conveyance and assignment to Lessor of all of
the Demised Premises, improvements and materials and redevelopment rights to and
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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 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 his 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 anytime
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach, including the cost
of recovering the Demised Premises, which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.o� Lessor's Right to Perform. In the event that Lessee, by failing or
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neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty (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 bylaw. Lessor
shall have the same rights set forth in this Section with respect to any future subinterest
holder's respective portion of the Demised Premises.
Section 16.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 any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion, or if Lessee or any Sublessees fail to comply with the Affordable Restrictions, as
they pertain to their respective interests in or portions of the Demised Premises, such an
occurrence will be considered a material default by the offending party. 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 immediately terminate the Lease or Sublease. 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 17.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
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 maybe necessary in
order to keep the buildings and other property which is the subject matter of this Lease in
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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 XVIII
Additional Covenants of Lessee/Lessor
Section 18.oi Legal The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of a multi -unit
affordable housing complex and the other matters as may be set forth in this Lease, with
related amenities and facilities, and for no other purposes whatsoever without Lessor's
written consent.
Section 18.02 Termination. Upon termination of this Lease, the Lessee will
peaceably and quietly deliver possession of the Demised Premises, unless the Lease is
extended as provided herein. Therefore, Lessee shall surrender the improvements together
with the leased premises. Ownership of some or all improvements shall thereupon revert to
Lessor.
Section 18.o� Recovery of Litigation Expense. In the event of any suit, action or
proceeding, at law or in equity, by either of the parties hereto against the other, or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease, including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys' fees including appellate, bankruptcy and post -judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Affordable Restrictions from any person or persons from or to whom a
demand or enforcement request is made, regardless of actual initiation of an action or
proceeding.
Section 18.o4 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as -is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
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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.o5 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 between its
taking ownership of the Demised Premises and the Effective Date.
Section 18.o6 Recordation. Lessee, within five (5) business days after execution of
this Lease, shall record a complete, true and correct copy of the Lease and any addenda or
exhibits thereto 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
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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
or other proceedings pending or threatened in respect to the ownership, operation or
environmental condition of the Demised Premises or any part thereof. Additionally, the
Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of
the covenants and conditions required by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continued possession of the Demised Premises from
claims by Lessor.
Section 19.02 No Unlawful or Immoral Purpose or Use. The Lessee, as long as it
owns any portion of the Demised Premises, use such portion for any unlawful or immoral
purpose and will, at Lessee's sole cost and expense during such period of ownership,
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 20.0� 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.
Section 2o.o4 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
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instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20.05 Notices. If either parry 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 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:
CDG SEA GRAPE II, LLC
2950 S.W. 27 TH AVE. SUITE 200
Miami, Florida 33133
Lessor:
DIRECTOR - MONROE COUNTY
DIVISION OF HOUSING & COMMUNITY
DEVELOPMENT
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 200
Marathon, Florida 33050
Tel. 305-289-6002
and
MONROE COUNTY ATTORNEY
PO Box 1026
Key West, Florida 33041
Tel. 305-292-3470
Section 20.06 Joint Liabilitv. 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 20.07 Liability Continued, Lessor Liability. All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment. In addition, the Lessor's liability under this Lease, unless specifically
dealt with differently herein, shall be at all times limited to the Lessor's interest in the
Demised Premises.
Page 40 of 53
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 20.0g 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 20.10 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 Monroe County, Florida.
Section 20.11 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 20.1� 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.
Section 20.1.-, Lessor/Lessee Relationship, Non -Reliance by Third Parties. This
Lease creates a lessor/lessee relationship, and no other relationship, between the parties.
This Lease is for the sole benefit of the parties hereto and, except for assignments or
Subleases permitted hereunder and to the limited extent thereof, no other person or entity
shall be a third party beneficiary hereunder. 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,
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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 Conlin ems. This Lease Agreement is contingent upon Initial
Lessee obtaining construction financing; all necessary permits to build the Affordable
Housing Units described herein; as well as Initial Lessee obtaining adequate cross access
easements with a contemplated separate prior phase of an overall project that will create
fifty six (56) Affordable Housing Units on an adjoining parcel. Therefore, in the event
Initial Lessee is unable to obtain financing, permits or adequate cross easements within the
time for performance set forth herein, Initial Lessee may terminate this Lease. Termination
of the Lease under such circumstances shall constitute effective, full and immediate
conveyance and assignment to Lessor of all of the Demised Premises, improvements and
materials and redevelopment rights to and associated with the Demised Premises and the
Project, subject to mortgagee protection as provided herein. Initial Lessee hereby
acknowledges that in the event Initial Lessee terminates this Agreement once Lessor or the
Monroe County Land Authority has purchased the Demised Premises, Initial Lessee will not
receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to such
termination and affordable ROGO permit allocations now associated with the Property shall
be deemed surrendered back to and returned to the City of Marathon, Florida.
Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient quantities, may pose health
risks to persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings. Additional information regarding radon and
radon testing may be obtained from your county health unit. Lessor shall not be
responsible for radon testing for any persons purchasing, leasing or occupying any portion
of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless
and indemnify Lessor for damages or claims related thereto and release Lessor from same.
Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in 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 20.19 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
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change to any applicable state or federal law or regulation that might in any way affect this
Lease, the Affordable Restrictions, any Related Agreements or their respective 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, but such construction
shall not permit a fundamentally inequitable result for any party or require of any party an
action that would be unauthorized under or that would violate LIHTC.
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 the
Affordable Restrictions. Such forums may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and
only by way of one example, and not as any limitation, the 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 20.2� Exceptions to Lease/Rental Prohibition. Under this Lease rental of
Affordable Housing Units is not prohibited. In addition to rights recognized herein for
Initial Lessee and certain "bulk" purchasers to rent units to tenants qualified under LIHTC
regulations, which are not hereby restricted, 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, but such provisions shall not conflict with Initial Lessee's management of the
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Demised Premises as a LIHTC property. Requests for such approval shall be made in
accordance with such procedures Lessor may in the future choose to adopt. It is
contemplated, though not promised or required, that certain limited rental provisions may
be adopted in the future for circumstances such as, for example, but without limitation:
(a) A Sublessee's required absence from the local area for official military duty.
(b) An illness that legitimately requires a Sublessee to be hospitalized for an
extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty (30) days.
Lessor, in its discretion, shall have the right to amend, modify, extend, decrease or
terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at
any time.
Section 20.24 Drafting of Lease and any Related Agreement. The parties
acknowledge that they jointly participated in the drafting of this Lease and any Related
Agreements with the benefit of counsel, or had the opportunity to receive such benefit of
counsel, and that no term or provision of this Lease or a Related Agreement shall be
construed in favor of or against either party based solely on the drafting of this Lease or the
Related Agreement.
Section 20.25 Lessor's Duty to Cooperate. Where required under this Lease or
Related Agreement, Lessor shall, to ensure the implementation of the public affordability
purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee,
Sublessees, mortgagees, title insurers, closing agents, government agencies and the like
regarding any relevant terms and conditions contained herein.
Section 20.26 Initial Lessee's Transfer of Partnership Interests. Nothing herein
shall limit or preclude transfers of partnership interests of the Initial Lessee.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written.
Signed, Sealed and Delivered LESSOR: MONROE COUNTY
in the presence of two witnesses:
Printed N
Printed N
By:
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(as to Lessor)
Printed N
Printed Nam(
(as to Lessee)
LESSEE:
SEA GRAPE II, LTD.
By.
Manager
For CDG SEA GRAPE II, LLC, General
Partner
Page 45 of 53
EXHIBIT "A"
LEGAL DESCRIPTION
Page 46 of 53
EXHIBIT `B"
DEPICTION OF PROJECT LAYOUT
Page 47 of 53
This Instrument Prepared By:
JERRY COLEMAN, P.L.
201 Front Street Suite 203
Key West Florida 33040
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 , 200 for
Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book Page
, along with a Related Agreement, that certain Agreement for Sale and Purchase, dated ,
200, recorded at Book_ Page _ all of the Public Records of Monroe County, Florida.
WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has
occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to
the Lease.
NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set
forth below is true and accurate.
Commencement Date: , 200
Initial Term Expiration Date: , 210
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR: LESSEE:
By: By:
its its
Witness 1 Witness 1
Witness 2 Witness 2
Page 48 Of 53
EXHIBIT "D"
Term Portion Due Date Rent Term Portion Due Date Rent
Lease
Year 1
Aug 1 2006
$10.00
Lease Year 51
Aug 1 2056
$10.00
Lease
Year 2
Aug 1 2007
$10.00
Lease Year 52
Aug 1 2057
$10.00
Lease
Year 3
Aug 1 2008
$10.00
Lease Year 53
Aug 1 2058
$10.00
Lease
Year 4
Aug 1 2009
$10.00
Lease Year 54
Aug 1 2059
$10.00
Lease
Year 5
Aug 1 2010
$10.00
Lease Year 55
Aug 1 2060
$10.00
Lease
Year 6
Aug 1 2011
$10.00
Lease Year 56
Aug 1 2061
$10.00
Lease
Year 7
Aug 1 2012
$10.00
Lease Year 57
Aug 1 2062
$10.00
Lease
Year 8
Aug 1 2013
$10.00
Lease Year 58
Aug 1 2063
$10.00
Lease
Year 9
Aug 1 2014
$10.00
Lease Year 59
Aug 1 2064
$10.00
Lease
Year 10
Aug 1 2015
$10.00
Lease Year 60
Aug 1 2065
$10.00
Lease
Year 11
Aug 1 2016
$10.00
Lease Year 61
Aug 1 2066
$10.00
Lease
Year 12
Aug 1 2017
$10.00
Lease Year 62
Aug 1 2067
$10.00
Lease
Year 13
Aug 1 2018
$10.00
Lease Year 63
Aug 1 2068
$10.00
Lease
Year 14
Aug 1 2019
$10.00
Lease Year 64
Aug 1 2069
$10.00
Lease
Year 15
Aug 1 2020
$10.00
Lease Year 65
Aug 1 2070
$10.00
Lease
Year 16
Aug 1 2021
$10.00
Lease Year 66
Aug 1 2071
$10.00
Lease
Year 17
Aug 1 2022
$10.00
Lease Year 67
Aug 1 2072
$10.00
Lease
Year 18
Aug 1 2023
$10.00
Lease Year 68
Aug 1 2073
$10.00
Lease
Year 19
Aug 1 2024
$10.00
Lease Year 69
Aug 1 2074
$10.00
Lease
Year 20
Aug 1 2025
$10.00
Lease Year 70
Aug 1 2075
$10.00
Lease
Year 21
Aug 1 2026
$10.00
Lease Year 71
Aug 1 2076
$10.00
Lease
Year 22
Aug 1 2027
$10.00
Lease Year 72
Aug 1 2077
$10.00
Lease
Year 23
Aug 1 2028
$10.00
Lease Year 73
Aug 1 2078
$10.00
Lease
Year 24
Aug 1 2029
$10.00
Lease Year 74
Aug 1 2079
$10.00
Lease
Year 25
Aug 1 2030
$10.00
Lease Year 75
Aug 1 2080
$10.00
Lease
Year 26
Aug 1 2031
$10.00
Lease Year 76
Aug 1 2081
$10.00
Lease
Year 27
Aug 1 2032
$10.00
Lease Year 77
Aug 1 2082
$10.00
Lease
Year 28
Aug 1 2033
$10.00
Lease Year 78
Aug 1 2083
$10.00
Lease
Year 29
Aug 1 2034
$10.00
Lease Year 79
Aug 1 2084
$10.00
Lease
Year 30
Aug 1 2035
$10.00
Lease Year 80
Aug 1 2085
$10.00
Lease
Year 31
Aug 1 2036
$10.00
Lease Year 81
Aug 1 2086
$10.00
Lease
Year 32
Aug 1 2037
$10.00
Lease Year 82
Aug 1 2087
$10.00
Lease
Year 33
Aug 1 2038
$10.00
Lease Year 83
Aug 1 2088
$10.00
Lease
Year 34
Aug 1 2039
$10.00
Lease Year 84
Aug 1 2089
$10.00
Lease
Year 35
Aug 1 2040
$10.00
Lease Year 85
Aug 1 2090
$10.00
Lease
Year 36
Aug 1 2041
$10.00
Lease Year 86
Aug 1 2091
$10.00
Lease
Year 37
Aug 1 2042
$10.00
Lease Year 87
Aug 1 2092
$10.00
Lease
Year 38
Aug 1 2043
$10.00
Lease Year 88
Aug 1 2093
$10.00
Lease
Year 39
Aug 1 2044
$10.00
Lease Year 89
Aug 1 2094
$10.00
Lease
Year 40
Aug 1 2045
$10.00
Lease Year 90
Aug 1 2095
$10.00
Lease
Year 41
Aug 1 2046
$10.00
Lease Year 91
Aug 1 2096
$10.00
Lease
Year 42
Aug 1 2047
$10.00
Lease Year 92
Aug 1 2097
$10.00
Lease
Year 43
Aug 1 2048
$10.00
Lease Year 93
Aug 1 2098
$10.00
Page 49 of 53
Lease Year 44
Aug 1 2049
$10.00
Lease Year 94
Aug 1 2099
$10.00
Lease Year 45
Aug 1 2050
$10.00
Lease Year 95
Aug 1 2100
$10.00
Lease Year 46
Aug 1 2051
$10.00
Lease Year 96
Aug 1 2101
$10.00
Lease Year 47
Aug 1 2052
$10.00
Lease Year 97
Aug 1 2102
$10.00
Lease Year 48
Aug 1 2053
$10.00
Lease Year 98
Aug 1 2103
$10.00
Lease Year 49
Aug 1 2054
$10.00
Lease Year 99
Aug 1 2104
$10.00
Lease Year 50
Aug 1 2055
$10.00
Page 50 of 53
EXHIBIT "E"
LETTER OF ACKNOWLEDGEMENT
TO: Initial Lessee, or its assigns
Address of Initial Lessee, or its assigns
DATE:
This letter is given to (.....Initial Lessee....) as an acknowledgement in regard to the
Affordable Housing Unit that I am purchasing. I hereby acknowledge the following:
• That I meet the requirements set forth in the Affordable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my, future similarly situated persons
and Monroe County's benefits.
• That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore I will be subleasing a parcel of land.
• That my legal counsel, has explained to me the
terms and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction. If I have not had legal counsel, I state here that I have had an
opportunity to have obtain such counsel, understand its importance, and have
knowingly proceeded to closing without it.
• That I understand the terms of the Lease and how the terms and conditions set
forth therein will affect my rights as an owner of the Affordable Housing Unit,
now and in the future.
• That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I
understand and agree for myself and my successors in interest that Monroe
County may change some of the Affordable Restrictions over the 99-year term of
the Lease and that I will be expected to abide by any such changes.
• That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
• That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it to and that the timing and procedures for sales will be restricted.
• That my lease prohibits me from severing the improvements from the real
property.
• That my family and I must occupy the Affordable Housing Unit and that it cannot
be rented to third parties without the written approval of the Lessor.
Page 51 of 53
I understand that in the event that I die, my home may be devised and occupied by
my wife, my children or any other heirs so long as they meet the requirements for
affordable housing as set forth in the Lease.
That I have reviewed the terms of the Lease and transaction documents and that I
consider said terms fair and necessary to preserve affordable housing and of
special benefit to me.
I hereby warrant that I have not dealt with any broker other than
in connection with the consummation of the
purchase of the Affordable Housing Unit.
Page 52 of 53
EXHIBIT "F"
Modified or Additional Conditions
This modification or
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee
additional condition
(ADDITIONAL PROVISION]. Initial Lessee acknowledges that there shall be
shall:
reserved by this Lease a right of first refusal in favor of Lessor to purchase or
designate purchasers for anyAffordable Housing Units offered for sale or lease.
Initial Lessee shall provide Lessor with written notice of its intent to commence
X NOT APPLY
marketing efforts and Lessor shall have ninety (go) days from the date of
Lessor's receipt of the notice to enter into a reservation agreement with Initial
APPLY
Lessee for the purchase/lease of all or a portion of the Affordable Housing Units,
unless Initial Lessee has been authorized, in writing (which the omission of this
provision may itself constitute), by Lessor to sell the Affordable Housing Units to
to this Lease.
individuals otherwise qualified to own/rent the Affordable Housing Units and
subject to all other affordable housing covenants of record. Notwithstanding
anything contained herein to the contrary, all purchasers/lessees of such
Affordable Housing Units shall meet Lessor's requirements of moderate or lesser
income affordable housing, adjusted for family size, and any other applicable
Affordable Restrictions.
Page 53 of 53
LEASE
BETWEEN
MONROE COUNTY
"LESSOR"
AND
SEA GRAPE II, LTD.
"LESSEE"
DATED ,20o6
C:\Documents and Settings\All Users\Documents\All Practice\AA Legal Matters\M\A Monroe County
Workforce Task Force\Leases\Sea Grape\Sea Grape II, Ltd\Sea Grape II, Ltd - AFFORDABLE 99 YEAR
LEASE v3.doc9/6/2006 8:14 AM
Table of Contents
Article
Title
Page No.
I
Definitions
3
II
Demised Premises
6
III
Term
7
IV
Rent
7
V
Non -Subordination
8
VI
Payment of Taxes
9
VII
Mechanics' Liens
11
VIII
Governing Law, Cumulative Remedies
12
IX
Indemnification of Lessor
13
X
Insurance
14
XI
Insurance Premiums
18
XII
Assignment
18
XIII
Condemnation
25
XIV
Construction
26
XV
Mortgage Financing
28
XVI
Default
33
XVII
Repair Obligations
36
XVIII
Additional Covenants of Lessee, Lessor
36
XIX
Representations, Warranties of Title and Quiet
38
Enjoyment
XX
Miscellaneous
38
Page 2 of 53
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Key West, Monroe County, Florida, on this
day of , 2 oo6, by and between MONROE COUNTY (referred to as
the "Lessor") and SEA GRAPE II, LTD., Florida limited partnership (referred to as the
"Lessee").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at
, City of Marathon, Monroe County, Florida, and more particularly
described on the attached Exhibit "A" (hereinafter "Property"); and,
WHEREAS, it is Lessor's intent that the Propertybe developed to provide affordable
housing for Monroe County; and,
WHEREAS, Lessee desires to develop the Property for rental use twenty eight (28)
affordable housing units (provided allowed by County regulations and hereinafter the
"Affordable Housing Units") for qualified owner -occupants using, among other financing
sources, those made available through Section 42 Low -Income Housing Tax Credit program
(LIHTC).; and,
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
Definitions
"Affordable Housing Unit" shall mean a residential housing unit that meets the
moderate or lesser income requirements set forth in Chapter 9.5 and any other 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 a term of ninety-nine (99) years. However,
nothing in this Lease shall permit the Lessor to require a Lessee to comply with provisions
of local ordinances that are in conflict with LIHTC requirements applicable to the financing
of the project.
"Affordable Restrictions" shall mean the affordable or employee housing regulations
Page 3 of 53
as set forth in Chapter 9.5 and any other applicable sections of the Monroe County Land
Development Regulations or County Code, as hereinafter amended, except that in no event
shall the Lessor decrease the lawfully permissible sales price for an Affordable Housing Unit
to less than the specified sales price 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
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 an Affordable Housing Unit. However,
Lessor may restrict Affordable Housing Unit resales and rentals to use as "Employee
Housing" as defined in the Affordable Restrictions, as amended from time to time.
Moreover, Lessor may establish in its Affordable Restrictions "means" or "assets" criteria
that limit potential buyer or rental 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 an interpretation that
ensures long term affordability benefits for the respective housing resources inure to the
benefit of Monroe County, its economy and its community character. In all cases of conflict
between local and federal LIHTIC rental guidelines, Lessee shall be entitled to adhere to
governing federal requirements without being deemed in breach of this Lease or the
Affordable Restrictions.
"Association" shall mean any condominium, homeowners or similar community
association customarily used in planned developments (whether or not expressly
contemplated or authorized herein) to manage certain aspects of community or planned
development living (e.g., infrastructure management, rules and regulations, enforcement
mechanisms and recreational facilities).
"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" and depicted on attached Exhibit "B". 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.
Page 4 of 53
"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 SEA GRAPE II, LTD., developer and future manager of the
Affordable Housing Units.
"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, that any
limitations, restrictions and/or other covenants of any nature, whether established
pursuant to this Lease or by the Affordable Restrictions, be given the full force and effect of
enforceable covenants running with the land, equitable servitudes and all other cognizable
legal and equitable real property conventions so as to ensure the overall public affordable
housing purposes intended to be served, including appropriate application of cumulative
enforcement theories.
"Lease Year" shall mean the twelve (12) month period beginning on the
Commencement Date and each twelve (12) month period thereafter throughout the Term of
this Lease.
"Lessor" means MONROE COUNTY, or its assigns or designees. Lessor as used
herein and where the context requires, shall mean an agency or party designated by the
Lessor, by written notice to all parties, to administer or enforce some or any portion of the
provisions of this Lease or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns, including the
Association created by Initial Lessee for the Unit owners/tenants, as well as the individual
Unit owners/tenants.
"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 of the Affordable
Housing Units and creation of any required governing Association.
"Related Agreements" shall mean any purchase and sale or other agreement entered
into with Monroe County contemporaneously and in conjunction with this Lease and which
is recorded. Related Agreements made to apply to this Lease are set forth in Exhibit F.
"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
Page 5 of 53
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 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
effectuate qualified end -user, title, possession and/or use of Affordable Housing Units
developed on the Demised Premises. A Sublease, as used herein, regardless of final form
and substance, must be approved by the Lessor, which approval shall not be unreasonably
withheld.
"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(s)
acquires( ) or renews their interest(s) in the Affordable Housing Unit, qualifies for
"Affordable Housing" as defined under Chapter 9.5 of the Monroe County Code and who is
gainfully employed at the time of their rental. Additionally, except as may be otherwise
permitted by this Lease, in order to remain eligible to renew their sublease or rental
agreement and to reside in their Affordable Housing Unit into retirement, in addition to
complying with any otherwise applicable provisions in the Affordable Restrictions, renters
or tenants of all Affordable Housing Units must remain gainfully employed except as may
be otherwise exempted by law, including the Affordable Restrictions.
"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.oi Lessor's Demise. Upon the terms and conditions hereinafter set forth,
and in consideration of the payment of the Rents and the prompt and full performance by
the Initial Lessee of these covenants and the terms and conditions of any Related
Agreements, to be kept and performed by the Initial Lessee, the Lessor does lease, let, and
demise to the Initial Lessee and the Initial Lessee hereby leases from the Lessor, the
Page 6 of 53
following described premises, situate, lying and being in Monroe County, Florida:
See Attached Exhibits "A" and "B"
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 any Related
Agreements.
ARTICLE III
Term
Section �.oi Term. To have and to hold the Demised Premises for a term of ninety-
nine (99) years commencing on the Commencement Date, and ending ninety-nine (99)
years thereafter, both dates inclusive, unless sooner terminated, or extended, as hereinafter
provided (the "Termination Date"). Lessee shall be given possession on the Effective Date
and the terms and conditions set forth herein shall be binding on the parties as of the
Effective Date. Lessee shall have the right to occupy the Demised Premises as of the
Effective Date in order to allow Lessee to commence construction, as well as other activities
related to the development and construction of the Project. As herein set forth, the Term
will not commence until the first Affordable Housing Unit is completed and a certificate of
occupancy has been issued for said first Affordable Housing Unit, said date to be evidenced
by the Commencement Date Agreement that the parties will execute in substantially the
same form as that set forth in Exhibit C hereto, upon completion of construction of the first
Affordable Housing Unit.
ARTICLE IV
Rent
Section 4.oi 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
Page 7 of 53
Landlord said Annual Base Rent on the first day of the second month of each Lease Year
throughout the term of this Lease, provided that upon transfer of control of an Association
by Initial Lessee as may be authorized under this Lease, Lessor agrees to provide written
notice of the Annual Base Rent to the Association at least ten (1o) business days prior to
said Rent being due, which notice may be in the form of a single schedule of all rental due
dates under the Term of the Lease duly recorded in the Public Records of Monroe County,
Florida, with a copy of such schedule provided to the Lessee and Association. The form of
such notice may be similar to that in Exhibit D, hereto.
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.o�. 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.o4. 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 (3o) days for any other sums due from
Lessee pursuant to this Lease; provided, however, such payment shall not excuse or cure
any default by Lessee under this Lease. It is agreed by the parties hereto that Lessee shall
reimburse Lessor for collection charges incurred as a result of the overdue Rent which may
include but shall not be limited to related attorneys' fees, regardless of whether suit is
brought. Such late fee shall be in addition to any interest payable by Lessee as set forth
herein from Lessee's failure to pay any Rent due hereunder. In the event that any check,
bank draft, order for payment or negotiable instrument given to Lessor for any payment
under this Lease shall be dishonored for any reason whatsoever not attributable to Lessor,
Lessor shall be entitled to charge Lessee an administrative charge 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 said instrument being dishonored.
ARTICLE V
Page 8 of 53
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.oi Lessee's Obligations. As additional Rent, 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
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 6.0� Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or
Page 9 of 53
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.o4 Mode of Pam. 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 (3o) days
before the tax, itself, would become delinquent in accordance with the law then in force
governing the payment of such tax or taxes. If, however, the Lessee desires to contest the
validity of any tax or tax claim, the Lessee may do so without being in default hereunder,
provided the Lessee gives the Lessor notice of the Lessee's intention to do so and furnishes
the Lessor or the applicable governmental agency with a bond with a surety made by a
surety company qualified to do business in the State of Florida or pays cash to a recognized
escrow agent in Monroe County, one and one half (11/2) times the amount of the tax item or
items intended to be contested, conditioned to pay such tax or tax items when the validity
thereof shall have been determined, and which written notice and bond or equivalent cash
shall be given by the Lessee to the Lessor, not later than sixty (6o) days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6.o5 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,
pay the same and the amount or amounts of money so paid, including reasonable attorneys'
fees and expenses which might be reasonably incurred because of or in connection with
such payments, together with interest on all such amounts, at the highest rate allowed by
law shall be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the
payment thereof may be collected or enforced by the Lessor in the same manner as though
such amount were an installment of Rent specifically required by the terms of this Lease to
be paid by the Lessee to the Lessor, upon the day when the Lessor demands repayment
thereof or reimbursement therefor of and from the Lessee; but the election of the Lessor to
pay such taxes shall not waive the default thus committed by the Lessee. Notwithstanding
the foregoing, Lessee shall have the right to contest any taxes and assessments levied
against Lessee; 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
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assessment measures and collection remedies lawfully available to any taxing authority.
Section 6.o6 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.o7 Proration. The foregoing notwithstanding, the parties hereto
understand and agree that the taxes for the first year (beginning on the Effective Date) and
the last year of the Term shall be prorated proportionately between the Lessor and the
Lessee.
Section 6.o8 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.
Section 7.02 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
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 (3o) days after the Lessee or Sublessee shall have been given written notice of such a
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claim having been filed, or within thirty (3o) 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 the 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 7.o3 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 mightbe 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.o4 Sublessee's Default. If the Sublessee shall fail, refuse, or neglect to
perform its obligations as required in this Article, then the Lessor may, but shall not be
required to, pay any sums required to cause the Demised Premises and the Lessor's interest
therein to be released from the legal effect of such claim and the amount or amounts of
money so paid, including reasonable attorneys' fees and expenses which might be
reasonably incurred because of or in connection with such payments, together with interest
on all such amounts at the highest rate allowed by law, shall be repaid by the Sublessee to
the Lessor, upon the demand of the Lessor, and the payment thereof may be collected or
enforced by the Lessor in the same manner as though such amount were an installment of
Rent specifically required by the terms of this Lease to be paid by the Sublessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement
therefor of and from the Sublessee; but the election of the Lessor to pay such amount shall
not waive the default thus committed by the Sublessee.
ARTICLE VIII
Governing Law, Cumulative Remedies
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Section 8.oi 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 g.oi Indemnification by 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 maybe made against the Lessor or against the Lessor's title in the Demised Premises,
arising out of, or in connection with, or in anyway related to the Demised Premises, except
to the extent such claims may be caused by the gross negligence or intentional misconduct
of the Lessor (or its agents or employees in the conduct of work for or at the direction of the
Lessor) with respect only to any duty or obligation Lessor expressly assumes with respect to
any portion of the Demised Premises, none of which duties and obligations are so assumed
herein. 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
Page 13 of 53
or property in, about or relating to the Demised Premises. Lessee, on its and its assignees'
and their successors in interests' behalves, including any future Sublessees, or grantees or
licensees of the Initial Lessee or the Association, 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 9.02 Insurance. On the Effective Date the Lessee shall cause to be written
and put in full force and effect a policy or policies of insurance as noted in Article X insuring
the Lessee against any and all claims and demands made by any person or persons
whomsoever for death, injuries or damages received in connection with the possession,
operation and maintenance of the Demised Premises. All such policies shall name the
Lessee and the Lessor (and any lender holding a mortgage on the Demised Premises), as
their respective interests may appear, as the persons insured by such policies. Any loss
adjustment shall require the written consent of both the Lessor and Lessee.
Section g.o� 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 Property 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 joint 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
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case may be, of any building or buildings damaged or destroyed by fire, flood, windstorm or
other casualty for which insurance money shall be payable and shall be paid out by the
Lessor and the Lessee from said joint account from time to time on the estimate of any
reliable architect licensed in the State of Florida officially overseeing of such reconstruction
and repair, certifying that the amount of such estimate is being applied to the payment of
the reconstruction or repair and at a reasonable cost therefor; provided, however, that the
total amount of money necessary for the reconstruction or repair of any building or
buildings destroyed or damaged has been provided by the Lessee for such purpose and its
application for such purpose assured.
In the event of the destruction or damage of the improvements located on the
Demised Premises, or any part thereof, and as often as 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 from the date of such damage or destruction,
rebuild and repair the same in such manner that the buildings or improvements so rebuilt
and repaired, and the personal property so replaced or repaired, shall be of the same or of a
value higher than were the buildings or improvements and the personal property prior to
such damage or destruction, and Lessee shall diligently prosecute the reconstruction or
repairs without delay and have the same rebuilt and ready for occupancy as soon as
reasonably possible after the time when the loss or destruction occurred. The 15-month
period 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 (1o)
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 this Lease has been
assigned to an Association contemplated or authorized under this Lease or the Affordable
Restrictions, the Association must obtain any necessary vote to terminate. 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
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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.
Section 10.02 Commercial General Liability Insurance. The Initial Lessee and the
Association (upon assignment to the Association) 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 (1) 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.o� 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 bythe 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 in accordance with the rules of the
American Arbitration Association. 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.o5 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
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the mortgagee, then such payment may be made, but in such event, it shall still be
obligatory upon the Lessee to create the complete fund with the leasehold mortgagee in the
manner set forth in this Article to assure complete payment for the work of reconstruction
and repair. Any mortgagee holding insurance proceeds shall require that such proceeds are
properly used to ensure repairs, but any mortgagee shall not be liable for misuse of funds by
Sublessee or Lessee.
Section 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. 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 maybe necessary to complete the
same in as short a period of time as is reasonable under the circumstances after the
occurrence of such damage or destruction, then the amount so collected, or the balance
thereof remaining in the joint account, as the case may be, shall be paid to the Lessor and it
will be at the Lessor's option to terminate the Lease, unless terminated by Lessee within the
last ten (1o) years of the Lease as set forth above, and retain such amount as liquidated and
agreed upon damages resulting from the failure of the Lessee to promptly, within the time
specified, complete such work of reconstruction and repair.
Section io.o7 Direct Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and oo/ioo Dollars
($1oo,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.
Section io.og Subsequent Lessees, Assignees, Sublessees and Grantees.
Notwithstanding anything contained herein to the contrary, in the event an authorized
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Association chooses not to obtain insurance coverage to protect against loss or damage by
fire, flood and windstorm for the individual Affordable Housing Units and therefore does
not charge the Sublessees for said coverage as part of the Association fees to be paid by the
individual Unit Owners (if this project is expressly authorized as a home ownership
project); then, in such event Sublessees shall secure the above -described insurance
coverage for their individual Affordable Housing Units. Therefore, Lessor shall be entitled
to require replacement cost and other customary and reasonable insurance coverage(s) at
least but only to the full replacement value of any Sublessees' and/or any governing
Association's insurable interest in the Demised Premises. Any parties who subsequently
become holders of any title or possessory interest to a portion of the Demised Premises,
shall upon request provide, in a form satisfactory to Lessor, proof of customary and
reasonable insurance adequate and sufficient to cover and protect all interests of the Lessor
as set forth in this Article X, at least to the extent and value of that subsequent interest
holder's insurable interest. The same or similar procedures for the use and application of
insurance proceeds as set forth above maybe required for subsequent interest holders and
the same remedies available to Lessor for Initial Lessee's failure to comply with such
insurance requirements shall be available to Lessor with respect to any future interest
holders. Future interest holders (including all Sublessees) shall name Lessor as an
additional insured on any required insurance policies.
ARTICLE XI
Insurance Premiums
Section ii.oi Insurance Premiums. The Lessee shall pay premiums for all of the
insurance policies which the Lessee is obligated to carry under the terms of this Lease. In
the event Lessee fails to obtain and pay for the necessary insurance, Lessor shall have the
right, but not the obligation, without notice to Lessee, to procure such insurance and/or pay
the premiums of such insurance, in which case Lessee shall repay Lessor immediately upon
demand by Lessor as additional Rent. The Lessor shall have the same rights and remedies
with respect to procurement of such insurance and/or payment of such insurance
premiums in the event a future subsequent partial interest holder (e.g., Sublessee,
Association) fails to obtain and pay for the necessary insurance.
ARTICLE XII
Assi n�/Transfer
Section 12.oi Assignment by Initial Lessee. Without the written consent of Lessor,
Initial Lessee shall not assign or sublet any portion of the Demised Premises, or change
management of the Demised Premises, except as otherwise provided herein.
Notwithstanding the foregoing, Lessor acknowledges and agrees that the Affordable
Housing Units are to be developed as units for rent to moderate or lesser income qualified
third parties, as defined in the Affordable Restrictions. Therefore, the Affordable Housing
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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.
- a 9-
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Initial I
Page 19 of 53
Formatted: Double strikethrough
_ _ _ _ _ _ _ _ - - Formatted: Double strikethrough
-----------------
Initial Lessee may
subsequently be authorized by Lessor to assign its interest in this Lease for any portions of
the Demised Premises to a homeowners', condominium or similar Association to be created
by the Initial Lessee. Any such Association and its related declaration, articles of
incorporation, bylaws and any other governing documents, as may be amended, shall first
be approved by Lessor or its designee for compliance with the goals, purposes and intent of
this Lease and the Affordable Restrictions, which approval shall not be unreasonably
withheld. Where such documents comply with the foregoing, Lessor shall join in any
community ownership governing documents as may be required by Initial Lessee in order
to conform its planned unit community governance to state law. No governing document
related to such Association shall materially alter or impair the terms and conditions of this
Lease or the applicability of the Affordable Restrictions. Lessor shall have fifteen (15)
business days from receipt of said documents to review and object to any contents thereof.
In the event Lessor fails to provide written notice of its consent or denial in regard to said
documents, said failure shall be deemed acceptance of the documents.
the 9-
Lessor shall have the right to assign any of its duties
and rights related to the assignment of Subleases, i.e. finding a qualified
renters in the case of rental units (unless the rental units are owned by Initial
Lessee (or a Lessor -approved subsequent assignee of Initial Lessee's interests) and Initial
Lessee chooses to manage the retained units, then in such event Initial Lessee shall have the
right to find qualified renters for said rental units where that right is not in conflict with the
Affordable Restrictions as may they may be automatically subordinated to LIHTC
requirements), to the Monroe County Housing Authority, or to any other governmental
entity or profit or non-profit organization designated and approved by Lessor. In the event
such duties or rights are assigned, reference to "Lessor" in this Section 12.01 shall also refer
to any assignee. Lessee agrees to allow Lessor or its designee to provide lists of potential
qualified renters of the Affordable Housing Units.
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
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own/occupy the Affordable Housing Units and subject to all other affordable housing
covenants of record only where Lessor subsequently provides authority to do so in writing
or under the Affordable Restrictions. 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. If Lessor is entitled to a reservation for initial purchase or assignment of the rights
to purchase all or a portion of the newly completed Affordable Housing Units, such right
and related procedures will be set forth in Exhibit F to this Lease.
Section 12.o� Assignment/Transfer by Sublessees. Where Lessor subsequently
provides authority in writing or under the Affordable Restrictions for the Affordable
Housing Units to be sold as homeownership units, at such time as any individual Unit
Owner or Sublessee desires to sell, assign or otherwise transfer their Affordable Housing
Units and interests, the Sublessee shall be required to follow the procedures set forth herein
and any procedure that may be set forth in the Affordable Restrictions, and any conveyance,
transfer or other disposition and the acceptance of such transfers shall be automatically
deemed an agreement to the conditions set forth herein.
Section 12.o4 Required Notice of Restrictions. Any conveyance, lease, assignment,
grant or other disposition of any interest made with respect to any portion of the Demised
Premises, including but not limited to any recorded Association governing documents,
other 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 and the first recorded
page of any recorded Association governing documents affecting the respective portion of
the Demised Premises shall be set forth in the Notice of Restrictions. Any instrument of
conveyance, lease, assignment or other disposition made without following the notice
procedures set forth herein shall be void and confer no rights upon any third person, though
Page 21 of 53
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 12.o5 Follow-on Sales and Assignments of Ground Lease Requirements;
Right of First Refusal. Unless otherwise subsequently authorized in writing or by the
Affordable Restrictions or unless otherwise as set forth in subsection e., below, or in
another provision herein, rentals of Affordable Housing Units are contemplated. However,
where Lessor subsequently provides authority in writing or under the Affordable
Restrictions for the Affordable Housing Units to be sold as homeownership units in order
for an owner or subsequent owner to sell their Affordable Housing Unit and assign their
Sublease they shall be required to comply with the following:
a. Sublessee shall notify the Lessor or its designee in writing of their desire to
sell the Affordable Housing Unit and assign the sublease, said notice
hereinafter referred to as a "Transfer Notice." The Transfer Notice shall
include the proposed purchase price for the Affordable Housing Unit, and any
other compensation permitted the Seller relating to the proposed sale, which
shall be in accordance with the Affordable Restrictions. Undisclosed
compensation to a Seller or to any other party is prohibited and where it is
found to have existed with respect to any transaction, the amount thereof
shall be recoverable in law and equity from any party to or facilitating and
benefiting from such transaction with knowledge thereof.
b. Lessor shall have for thirty (3o) days from the date of receipt of the written
Transfer Notice to exercise and/or to assign a right of first refusal granted
hereunder to purchase the Affordable Housing Unit or to find or identify to
the selling party in writing a qualified purchaser who meets the income and
other requirements for purchasing the Affordable Housing Unit.
Additionally:
1. The total sales price for all interests to be transferred shall be
the purchase price set forth in the Transfer Notice, which shall
not exceed the highest price permitted under the Affordable
Restrictions. All additional terms of the contract shall be
consistent with the Affordable Restrictions. Sublessee hereby
agrees to execute a contract with a pre -qualified purchaser
identified by the Lessor (or the Lessor if it exercises its right of
first refusal) and to cooperate with reasonable closing
procedures not in conflict with the Affordable Restrictions.
2. In the event Lessor finds a qualified purchaser, Lessor will
assist in coordinating the closing on the Affordable Housing
Unit. The closing shall be scheduled to occur within seventy-
five (75) days from the effective date of the contract for the sale
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of the Affordable Housing Unit, unless extended by the mutual
agreement of the parties and Lessor. Should Lessor exercise its
right of first refusal, it shall close under the same schedule set
forth herein.
C. In the event Lessor elects not to purchase or fails to identify a qualified
purchaser who enters into a purchase contract within thirty (3o) days and
who closes as provided above, and provided that Sublessee has fully complied
with all required procedures set forth in the Lease and the Affordable
Restrictions, Sublessee shall be entitled to sell the property to a qualified
purchaser pursuant to the Affordable Restrictions and the terms set forth in
the complying Transfer Notice. In this event, Sublessee shall allow Lessor to
review and approve all proposed contract terms to ensure that the terms and
the proposed purchaser meet the requirements for purchasing the Affordable
Housing Unit, which approval shall not be unreasonably withheld, delayed or
conditioned. Sublessee shall provide Lessor with a full copy of a written
purchase and sale contract (and all addenda) within three (3) business days
of full execution of each contract document, and all contracts shall state that
they and the proposed purchaser are subject to this Lease and the approval of
the Lessor. Lessor shall have fifteen (15) business days from receipt to review
the terms of the contract documents. In the event Lessor fails to provide
Sublessee with written approval or any written objections within fifteen (15)
business days from receipt of a contract document, Lessor shall be deemed to
have not objected to closing of the proposed transaction though not to have
waived enforceability of any applicable provisions of this Lease or the
Affordable Restrictions, whether or not any non-compliance may have been
apparent from or may have been indicated in documents provided. Sublessee
and the potential buyer shall also provide any other information Lessor
reasonably deems necessary to verify purchaser/Sublessee qualifications. All
purchase and sale contracts shall be deemed to be contingent on the buyer
and transaction being qualified under the Affordable Restrictions. Lessor
and the proposed parties to a transfer transaction may agree to additional
time periods necessary to verify full compliance with all aspects of the
Affordable Restrictions. In no case shall Lessor, or its designees, be deemed
to waive with respect to any party any requirement applicable to that party
under the Affordable Restrictions where it turns out that such requirement
was not in fact met, true or complied with. Lessor reserves, to itself and to its
designees, all legal and equitable rights it deems necessary or appropriate to
ensure that all portions of the Demised Premises are used for Affordable
Housing, the purpose for which they were intended, including but not limited
to termination of the sublease for any portion of the Demised Premises and
forcing sale and reassignment of any improvements thereon.
d. Lessor shall be deemed reasonable in withholding its approval for any
proposed sale if the contract terms and proposed purchaser do not meet
requirements set forth herein or in the Affordable Restrictions. After the
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Lessor has reviewed and approved a contract, Sublessee shall not have the
ability to amend the terms of the contract unless Sublessee obtains Lessor's
approval of the amendment as set forth in Paragraph c., above. The
Sublessee shall only transfer their interest to approved persons, as defined by
the Affordable Restrictions for moderate or lesser income, or to Lessor in the
event Lessor and Sublessee are unable to find a qualified purchaser, so long
as Lessor chooses to purchase the Affordable Housing Unit, in Lessor's sole
and absolute discretion. Additionally, after the expiration of the thirty (30)
day period described in Paragraph b. above, and before Sublessee has found a
qualified purchaser, Lessor may, but is not obligated to, continue the search
for a qualified purchaser. In the event Lessor finds and identifies a qualified
purchaser prior to Sublessee doing so, the procedure set forth in Paragraph
b.2., above, shall be followed.
e. Lessee and Sublessees are deemed to understand and agree that Lessor may,
in its absolute discretion, require that anyAffordable Housing Unit originally
sold as an affordable "ownership" and "occupancy" Affordable Housing Unit
which is made the subject of any unauthorized offer to rent, or which is
attempted to be or is actually rented absent specific written Lessor
authorization or as authorized in the Affordable Restrictions, be deemed to
have become the subject of an irrevocable offer to sell the Affordable Housing
Unit and thus subject to the right of first refusal provisions of this Article XII
and allow Lessor or its designee to purchase the Affordable Housing Unit at
the highest price permitted under the Affordable Restrictions. Lessor may
establish rental first right of refusal procedures similar to those set forth in
Paragraphs a. - d., above, for Affordable Housing Units to be used for
affordable rentals in accordance with the terms contained herein and in the
Affordable Restrictions (which procedures shall not, however, conflict with
Initial Lessee's intended management as a LIHTC property as contemplated
herein). In such case, a Sublessee may rent their Unit so long as all rental
agreements follow the guidelines and procedures set forth herein and in the
Affordable Restrictions and any LIHTC requirements, including but not
limited to providing Monroe County with a copy of the proposed rental
agreement for review and approval. Additionally, the rental agreement must
include a copy of any Association rules and regulations, as well as an
acknowledgement by the tenant that they will abide by the rules and
regulations of the Association, and Sublessee shall provide the Association
with a copy of said rental agreement to ensure compliance. Furthermore, no
Sublessee shall be authorized to enter into a rental agreement for an
Affordable Housing Unit containing a term greater than one (1) year, or
containing an automatic renewal term that would frustrate Lessor's rights or
continued affordability expectations established under this Lease or the
Affordable Restrictions. Additionally, in the event a tenant has been cited for
a violation of the rules and regulations of the Association more than twice in
any calendar year, Sublessee hereby agrees not to renew said lease without
first obtaining the approval of the Association Board of Directors, and said
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approval may be withheld in their sole and absolute discretion. 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.o6 Assignment by Lessor. This Lease is freely assignable by the Lessor,
and upon such assignment, the Lessor's liability shall cease and Lessor shall be released
from any further liability. In the event the ownership of the land comprising the Leased
Premises is conveyed or transferred (whether voluntarily or involuntarily) by Lessor to any
other person or entity, this Lease shall not cease, but shall remain binding and unaffected.
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 E. 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 XI 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.o8 Administrative Fees. With the exception of the initial sales by Initial
Lessee, where the Lessor authorizes sales of units for individual home ownership purposes,
the Lessor or its designee shall be entitled to charge three and one-half percent (31/2 %) of
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the Purchase Price (gross compensation however described) for any transferred interest
(other than simple security mortgage interests or rental agreements) in which Lessor
identified the purchaser, as an administrative fee for coordinating the closing on any
Affordable Housing Unit, said fee to be paid by the selling Unit Owner at the time of
closing. This fee does not include other seller and buyer closing related costs such as title
insurance, documentary stamps, intangible taxes, prorated taxes, real estate commissions,
insurance, homeowners' assessments, loan expenses and the like, or rental management or
processing fees for rental units. In the event Lessor was unable to identify a purchaser,
Lessor shall still be entitled to an administrative fee of one and one-half percent (11/2 %) of
the Purchase Price for review of the contract and assistance with coordinating the closing
on the Affordable Housing Unit. After the initial sales by Initial Lessee, the Lessor or its
designee shall be authorized to designate closing, escrow and title agents involved in all
transactions involving interests subject to this Lease. After the initial sale of each
Affordable Housing Unit by Initial Lessee, Lessor or its designee may, initially and from
time to time, establish, promulgate, revise and/or waive all or part of such fees related to
the administration of this Lease and any Subleases, but in no event may Lessor increase the
amount of the administrative fee to an amount in excess of three and one-half percent (31/2
%) for an owner who purchased his or her Affordable Housing Unit without actual,
constructive or regulatory notice of the potential applicability of a greater percentage fee.
ARTICLE XIII
Condemnation
Section 1:3.oi Eminent Domain; Cancellation. If, at anytime during the continuance
of this Lease, the Demised Premises or any portion thereof is taken, appropriated or
condemned by reason of eminent domain, there shall be such division of the proceeds and
awards in such condemnation proceedings and such abatement of the Rent and other
adjustments made as shall be just and equitable under the circumstances. If the Lessor and
the Lessee are unable to agree upon what division, annual abatement of Rent or other
adjustments as are just and equitable, within thirty (3o) days after such award has been
made, then the matters in dispute shall be determined in accordance with the rules of the
American Arbitration Association. Such determination made by the arbitration 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 1�.02 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
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destroyed by the exercise of the right of eminent domain. In this connection, if the
condemnation is total, the parties agree that the condemnation award shall be allocated so
that the then value of the property, as though it were unimproved property, shall be
allocated to the Lessor, and the then value of the building or buildings thereon shall be
allocated between the Lessor and Lessee after giving due consideration to the number of
years remaining in the Term of this Lease and the condition of the buildings at the time of
condemnation.
ARTICLE XIV
Construction
Section 14.oi Requirement to Construct Project.
(a) Initial Lessee shall commence construction of the Project no later than one
hundred twenty (12o) days after the issuance of the building permits for the construction of
the Project, and shall substantially complete construction of all twenty eight (28)
Affordable Housing Units within eighteen (18) months thereafter. The foregoing limitation
of time for the completion of the Project may be extended by written agreement between
the parties hereto.
(b) During the course of construction of the Project, Initial Lessee shall provide
to the Lessor quarterly written status reports on the Project. The Lessor and Initial Lessee
shall allow and permit reasonable access to, and inspection of, all documents, papers,
letters or other materials in their possession or under their control where such information
is subject to public disclosure under the provisions of Chapter 119, F.S., or successor or
supplemental statutes. However, nothing contained herein shall be construed to render
documents or records of Initial Lessee or any other persons that would not be deemed
public records under Chapter 119 to be such records only because of this provision. Lessees
(but not individual sublessees occupying an Affordable Housing Unit as their primary
residence) shall maintain all books, records, and documents directly pertinent to
performance under this Lease in accordance with generally accepted accounting principles
consistently applied. The County Clerk, State Auditor, or a designee of said officials or of
the Lessor, shall, during the term of this Agreement and for a period of five (5) years from
the date of termination of this Agreement, have access to and the right to examine and audit
any Records of the Lessee involving transactions related to this Agreement.
(c) The Project shall be constructed in accordance with the requirements of all
laws, ordinances, codes, orders, rules and regulations of all governmental entities having
jurisdiction over the Project, including, but not limited to, the Lessor.
(d) The Initial Lessee shall apply for and prosecute, with reasonable diligence, all
necessary approvals, permits and licenses required by applicable governmental authorities
for the construction, development, zoning, use and occupation of the Project. Lessor agrees
to cooperate with and publicly support the Initial Lessee's effort to obtain such approvals,
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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 of the Board of County Commissioners
of Monroe County or any of its agencies or departments. No statement contained in this
Lease shall be construed as to find the Initial Lessee or any of its employees, contractors,
servants or agents to be employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of County
employees. No covenant or agreement contained herein shall be deemed to be a covenant
or agreement of any member, officer, agent or employee of Monroe County or the Initial
Lessee or Lessee in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the Initial Lessee or Lessee shall be liable personally on this
Lease or be subject to any personal liability or accountability by reason of the execution of
this Lease.
(g) Initial Lessee agrees that it will not discriminate against any employees,
applicants for employment, prospective Sublessees or other prospective future subinterest
holders or against persons for any other benefit or service under this Lease because of their
race, color, religion, sex, sexual orientation, national origin, or physical or mental handicap
where the handicap does not affect the ability of an individual to perform in a position of
employment, and to abide by all federal and state laws regarding non-discrimination.
14.02 Access to the Project and Inspection. The Lessor or its duly appointed agents
shall have the right, at all reasonable times upon the furnishing of reasonable notice under
the circumstances (except in an emergency, when no notice shall be necessary), to enter
upon the common area of the Leased Premises to examine and inspect said area to the
extent that such access and inspection are reasonably justified to protect and further the
Lessor's continuing interest in the Demised Premises, as determined in Lessor's reasonable
discretion. Lessor's designees, for purposes of this Article 14.02, shall include city, county
or State code or building inspectors, and the like, without limitation. Initial Lessee shall
permit building and code inspectors' access customary to the performance of their duties
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related to projects of the nature contemplated herein, said notice requirements
notwithstanding.
14.o� 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. 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.
ARTICLE XV
Mortgage Financing
Section 15.o1 Construction Financing By Initial Lessee. Initial Lessee shall have the
right to mortgage its interests in the Demised Premises.
(a) The Initial Lessee shall have the right to encumber by mortgage or
other proper instrument Initial Lessee's interest under this Lease, together with all
buildings and improvements placed by Initial Lessee on the Demised Premises, to any
investor group or entity formed and lawfully authorized to participate in a LIHTC financing
arrangement, 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
specify the nature of each such default. Initial Lessee shall provide Lessor with written
notice of the book and page number of the Public Records of Monroe County, Florida for
each mortgage by which it encumbers the Demised Premises.
(c) In case the Initial Lessee shall default under any of the provisions of
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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.oi(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 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 Lessor (or any Sublessees) and the Lessor (and any Sublessees) shall be deemed
to have executed, acknowledged and delivered any such new Lease immediately upon
receipt by the Lessor; and such new Lease shall be accompanied by (i) payment to the
Lessor of all amounts then due to the Lessor of which the leasehold mortgagee(s) shall
theretofore have received written notice; and (ii) an agreement by the leasehold
mortgagee(s) to pay all other amounts then due to the Lessor of which the leasehold
mortgagee(s) shall not theretofore have received written notice. In addition, immediately
upon receipt bythe Lessor such new Lease, as provided in this Section 15.oi(d), the Lessor
shall be deemed to have executed, acknowledged and delivered to the leasehold
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mortgagee(s) an assignment of all Subleases covering the Demised Premises which
theretofore may have been assigned and transferred to the Lessor and all Subleases under
which Sublessees shall be required to attorn to the Lessor pursuant to the terms and
conditions of such Subleases or this Lease. Such assignment by the Lessor shall be deemed
to be without recourse as against the Lessor. Within ten (1o) 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 aO 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 of the Affordable Housing Units
contemplated herein. In no event shall anyprotections afforded aO 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 (1o) 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, 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
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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 a sale
of foreclosure by the leasehold mortgagee(s) and provisions applicable to the leasehold
mortgagee(s) in such instance or instances shall also be applicable to any such purchaser(s).
0) 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).
(1) In conjunction and contemporaneously with the sale or transfer of each
Affordable Housing Unit, leasehold mortgagee(s) shall make arrangement to ensure the
release of any and all applicable portions of its (their) 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).
(m) Lessor shall be entitled, in the event of any of the foregoing
circumstances or events set forth in this Paragraph 15.01, to elect to deal primarily or
exclusively with a mortgagee whose position is primary or in first order of 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.
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Section 15.02 Permitted Mortgages for Sublessees (Unit Owners). The individual
Affordable Housing Unit Owners/Sublessees shall have the right to encumber by mortgage
their interests in any Sublease, improvements or any associated portions of the Demised
Premises related to their interests in the individual Affordable Housing Units to a Federal
or State Savings Loan Association, Bank, Trust Company or similar lending institution,
subject to the following requirements:
(a) The mortgage(s) encumbering the Affordable Housing Unit shall not
exceed 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) For informational and record keeping purposes, Sublessees shall present
to Lessor (i) a copy of approval(s) for loans encumbering their Affordable Housing Unit
within five (5) business days after such loans are approved, and (ii) no sooner than five (5)
business days before the scheduled loan closing date, a copy of the owner's and/or any
lender's title insurance commitment. Lessor's failure to approve or object to any of the
foregoing documents prior to the closing of a relevant loan shall not preclude closing of the
relevant loan and shall not constitute an opinion or confirmation by Lessor that the
corresponding loans or title insurance policies comply with or conform to the requirements
of this Lease or the Affordable Restrictions, nor constitute any waiver or relinquishment of
Lessor's rights to enforce same;
(d) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery
of an assignment or other conveyance to a Sublessee's mortgagee in lieu of foreclosure with
respect to any real property subject to the provisions of this Lease, said mortgagee, or the
purchaser at foreclosure, shall comply with the provisions of Article XIL 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 12.05. 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
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(e) The parties recognize that it would be contrary to the fundamental
affordable housing concept of this Lease and an incentive to abuse Sublessee's
authorization to encumber its leasehold interest with a mortgage if Sublessee could realize
more in loan or sale proceeds than their permitted purchase or resale price as a result of
any transaction. Accordingly, Sublessee hereby irrevocably assigns to Lessor (or the
Monroe County Housing Authority or other Lessor designee) any and all net proceeds from
the sale of any interest in the Demised Premises remaining after payment of costs of
foreclosure and satisfaction of the lien of any mortgage which would have otherwise been
payable to Sublessee, to the extent such net proceeds exceed the net proceeds that Sublessee
would have received had the interests been sold pursuant to the Affordable Restrictions.
Sublessee hereby authorizes and instructs the mortgagee or any party conducting the
closing of a sale or through an unauthorized transfer to pay the amount of said excess
directly to Lessor. In the event, for any reason, such excess proceeds are paid to Sublessee,
Sublessee hereby agrees to promptly pay the amount of such excess to Lessor.
ARTICLE XVI
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 ten (1o) days written notice of such default and
Lessee fails to cure such default within ten (1o) days of receipt of said notice.
Except as to the provisions or events referred to in the preceding paragraph of this
Section, Lessee shall not be deemed to be in default under this Lease unless Lessor shall
first give to Lessee 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 (3o) 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.
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 or other detrimental occurrence (such as, but not limited to, payment of insurance
premiums, actions to prevent construction or judgment lien foreclosures or tax sales), then
the Lessor is empowered to take such action and to request reimbursement or restoration
from the Lessee as appropriate.
Section 16.02 Default. In the event of any material breach of this Lease by Lessee,
Lessor, and after the necessary notice provided to Initial Lessee's leasehold mortgagee(s), in
addition to the other rights or remedies it may have, shall have the immediate right to
terminate this Lease according to law. Termination of the Lease, under such circumstances,
shall constitute effective, full and immediate conveyance and assignment to Lessor of all of
the Demised Premises, improvements and materials and redevelopment rights to and
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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 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 his 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 anytime
terminate this Lease for any breach, in addition to any other remedy it may have, Lessor
may recover from Lessee all damages incurred by reason of such breach, including the cost
of recovering the Demised Premises, which amounts shall be immediately due and payable
from Lessee to Lessor.
Section 16.o� Lessor's Right to Perform. In the event that Lessee, by failing or
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neglecting to do or perform any act or thing herein provided by it to be done or performed,
shall be in default under this Lease and such failure shall continue for a period of thirty (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 bylaw. Lessor
shall have the same rights set forth in this Section with respect to any future subinterest
holder's respective portion of the Demised Premises.
Section 16.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 any portion of the Demised
Premises is used for purposes other than affordable housing by an interest holder of such
portion, or if Lessee or any Sublessees fail to comply with the Affordable Restrictions, as
they pertain to their respective interests in or portions of the Demised Premises, such an
occurrence will be considered a material default by the offending party. 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 immediately terminate the Lease or Sublease. 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 17.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
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 maybe necessary in
order to keep the buildings and other property which is the subject matter of this Lease in
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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 XVIII
Additional Covenants of Lessee/Lessor
Section 18.oi Legal The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of a multi -unit
affordable housing complex and the other matters as may be set forth in this Lease, with
related amenities and facilities, and for no other purposes whatsoever without Lessor's
written consent.
Section 18.02 Termination. Upon termination of this Lease, the Lessee will
peaceably and quietly deliver possession of the Demised Premises, unless the Lease is
extended as provided herein. Therefore, Lessee shall surrender the improvements together
with the leased premises. Ownership of some or all improvements shall thereupon revert to
Lessor.
Section 18.o� Recovery of Litigation Expense. In the event of any suit, action or
proceeding, at law or in equity, by either of the parties hereto against the other, or any other
person having, claiming or possessing any alleged interest in the Demised Premises, by
reason of any matter or thing arising out of or relating to this Lease, including any eviction
proceeding, the prevailing party shall recover not only its legal costs, but reasonable
attorneys' fees including appellate, bankruptcy and post -judgment collection proceedings
for the maintenance or defense of said action or suit, as the case may be. Any judgment
rendered in connection with any litigation arising out of this Lease shall bear interest at the
highest rate allowed by law. Lessor may recover reasonable legal and professional fees
attributable to administration, enforcement and preparation for litigation relating to this
Lease or to the Affordable Restrictions from any person or persons from or to whom a
demand or enforcement request is made, regardless of actual initiation of an action or
proceeding.
Section 18.o4 Condition of the Demised Premises. Lessee agrees to accept the
Demised Premises in its presently existing condition "as -is". It is understood and agreed
that the Lessee has determined that the Demised Premises are acceptable for its purposes
and hereby certifies same to Lessor. Lessee, at its sole cost and expense, shall bring or
cause to be brought to the Demised Premises adequate connections for water, electrical
power, telephone, stormwater and sewage and shall arrange with the appropriate utility
companies for furnishing such services with no obligation therefore on the part of Lessor.
The Lessor makes no express warranties and disclaims all implied warranties. Lessee
accepts the property in the condition in which it currently is without representation or
warranty, express or implied, in fact or by law, by the Lessor, and without recourse to the
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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.o5 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 between its
taking ownership of the Demised Premises and the Effective Date.
Section 18.o6 Recordation. Lessee, within five (5) business days after execution of
this Lease, shall record a complete, true and correct copy of the Lease and any addenda or
exhibits thereto 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
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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
or other proceedings pending or threatened in respect to the ownership, operation or
environmental condition of the Demised Premises or any part thereof. Additionally, the
Lessor and Lessee covenant and agree that so long as the Lessee keeps and performs all of
the covenants and conditions required by the Lessee to be kept and performed, the Lessee
shall have quiet and undisturbed and continued possession of the Demised Premises from
claims by Lessor.
Section 19.02 No Unlawful or Immoral Purpose or Use. The Lessee, as long as it
owns any portion of the Demised Premises, use such portion for any unlawful or immoral
purpose and will, at Lessee's sole cost and expense during such period of ownership,
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 20.0� 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.
Section 2o.o4 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
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instrument as of this date. No prior written lease or prior or contemporaneous oral
promises or representations shall be binding.
Section 20.05 Notices. If either parry 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 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:
CDG SEA GRAPE II, LLC
2950 S.W. 27 TH AVE. SUITE 200
Miami, Florida 33133
Lessor:
DIRECTOR - MONROE COUNTY
DIVISION OF HOUSING & COMMUNITY
DEVELOPMENT
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 200
Marathon, Florida 33050
Tel. 305-289-6002
and
MONROE COUNTY ATTORNEY
PO Box 1026
Key West, Florida 33041
Tel. 305-292-3470
Section 20.06 Joint Liabilitv. 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 20.07 Liability Continued, Lessor Liability. All references to the Lessor and
Lessee mean the persons who, from time to time, occupy the positions, respectively, of
Lessor and Lessee. In the event of an assignment of this Lease by the Lessor, except for
liabilities that may have been incurred prior to the date of the assignment or as specifically
dealt with differently herein, the Lessor's liability under this Lease shall terminate upon
such assignment. In addition, the Lessor's liability under this Lease, unless specifically
dealt with differently herein, shall be at all times limited to the Lessor's interest in the
Demised Premises.
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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 20.0g 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 20.10 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 Monroe County, Florida.
Section 20.11 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 20.1� 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.
Section 20.1.-, Lessor/Lessee Relationship, Non -Reliance by Third Parties. This
Lease creates a lessor/lessee relationship, and no other relationship, between the parties.
This Lease is for the sole benefit of the parties hereto and, except for assignments or
Subleases permitted hereunder and to the limited extent thereof, no other person or entity
shall be a third party beneficiary hereunder. 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,
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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 Conlin ems. This Lease Agreement is contingent upon Initial
Lessee obtaining construction financing; all necessary permits to build the Affordable
Housing Units described herein; as well as Initial Lessee obtaining adequate cross access
easements with a contemplated separate prior phase of an overall project that will create
fifty six (56) Affordable Housing Units on an adjoining parcel. Therefore, in the event
Initial Lessee is unable to obtain financing, permits or adequate cross easements within the
time for performance set forth herein, Initial Lessee may terminate this Lease. Termination
of the Lease under such circumstances shall constitute effective, full and immediate
conveyance and assignment to Lessor of all of the Demised Premises, improvements and
materials and redevelopment rights to and associated with the Demised Premises and the
Project, subject to mortgagee protection as provided herein. Initial Lessee hereby
acknowledges that in the event Initial Lessee terminates this Agreement once Lessor or the
Monroe County Land Authority has purchased the Demised Premises, Initial Lessee will not
receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to such
termination and affordable ROGO permit allocations now associated with the Property shall
be deemed surrendered back to and returned to the City of Marathon, Florida.
Section 20.17 Radon Gas Notification. Radon is a naturally occurring radioactive
gas that, when it has accumulated in a building in sufficient quantities, may pose health
risks to persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings. Additional information regarding radon and
radon testing may be obtained from your county health unit. Lessor shall not be
responsible for radon testing for any persons purchasing, leasing or occupying any portion
of the Demised Premises, and all owners, Lessees and Sublessees shall hold Lessor harmless
and indemnify Lessor for damages or claims related thereto and release Lessor from same.
Section 20.18 Mold Disclosure. Mold is a naturally occurring phenomenon that,
when it has accumulated in a building in sufficient quantities, may pose health risks to
persons who are exposed to it over time. Mold has been found in buildings in 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 20.19 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
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change to any applicable state or federal law or regulation that might in any way affect this
Lease, the Affordable Restrictions, any Related Agreements or their respective 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, but such construction
shall not permit a fundamentally inequitable result for any party or require of any party an
action that would be unauthorized under or that would violate LIHTC.
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 the
Affordable Restrictions. Such forums may include but in no way be limited to use of Code
Enforcement procedures pursuant to Chapter 162, Florida Statutes, to determine, for and
only by way of one example, and not as any limitation, the 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 20.2� Exceptions to Lease/Rental Prohibition. Under this Lease rental of
Affordable Housing Units is not prohibited. In addition to rights recognized herein for
Initial Lessee and certain "bulk" purchasers to rent units to tenants qualified under LIHTC
regulations, which are not hereby restricted, 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, but such provisions shall not conflict with Initial Lessee's management of the
Page 43 of 53
Demised Premises as a LIHTC property. Requests for such approval shall be made in
accordance with such procedures Lessor may in the future choose to adopt. It is
contemplated, though not promised or required, that certain limited rental provisions may
be adopted in the future for circumstances such as, for example, but without limitation:
(a) A Sublessee's required absence from the local area for official military duty.
(b) An illness that legitimately requires a Sublessee to be hospitalized for an
extended period.
(c) A family emergency legitimately requiring a Sublessee to leave the Keys for a
period longer than thirty (30) days.
Lessor, in its discretion, shall have the right to amend, modify, extend, decrease or
terminate any such exceptions under this Section 20.23 or the Affordable Restrictions at
any time.
Section 20.24 Drafting of Lease and any Related Agreement. The parties
acknowledge that they jointly participated in the drafting of this Lease and any Related
Agreements with the benefit of counsel, or had the opportunity to receive such benefit of
counsel, and that no term or provision of this Lease or a Related Agreement shall be
construed in favor of or against either party based solely on the drafting of this Lease or the
Related Agreement.
Section 20.25 Lessor's Duty to Cooperate. Where required under this Lease or
Related Agreement, Lessor shall, to ensure the implementation of the public affordability
purpose furthered by this Lease, cooperate with reasonable requests of Initial Lessee,
Sublessees, mortgagees, title insurers, closing agents, government agencies and the like
regarding any relevant terms and conditions contained herein.
Section 20.26 Initial Lessee's Transfer of Partnership Interests. Nothing herein
shall limit or preclude transfers of partnership interests of the Initial Lessee.
IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, the day and year above written.
Signed, Sealed and Delivered LESSOR: MONROE COUNTY
in the presence of two witnesses:
Printed N
Printed N
By:
Page 44 Of 53
(as to Lessor)
Printed N
Printed Nam(
(as to Lessee)
LESSEE:
SEA GRAPE II, LTD.
By.
Manager
For CDG SEA GRAPE II, LLC, General
Partner
Page 45 of 53
EXHIBIT "A"
LEGAL DESCRIPTION
Page 46 of 53
EXHIBIT `B"
DEPICTION OF PROJECT LAYOUT
Page 47 of 53
This Instrument Prepared By:
JERRY COLEMAN, P.L.
201 Front Street Suite 203
Key West Florida 33040
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 , 200 for
Premises designated on Exhibit A attached to the Lease, which was duly recorded at Book Page
, along with a Related Agreement, that certain Agreement for Sale and Purchase, dated ,
200, recorded at Book_ Page _ all of the Public Records of Monroe County, Florida.
WHEREAS, the Commencement Date, as further defined in Article III of the Lease, has
occurred; and pursuant to the Lease, Lessor and Lessee desire to confirm various dates relating to
the Lease.
NOW THEREFORE, Lessor and Lessee agree and acknowledge that the information set
forth below is true and accurate.
Commencement Date: , 200
Initial Term Expiration Date: , 210
EXECUTED as a sealed instrument on the date first set forth above.
LESSOR: LESSEE:
By: By:
its its
Witness 1 Witness 1
Witness 2 Witness 2
Page 48 Of 53
EXHIBIT "D"
Term Portion Due Date Rent Term Portion Due Date Rent
Lease
Year 1
Aug 1 2006
$10.00
Lease Year 51
Aug 1 2056
$10.00
Lease
Year 2
Aug 1 2007
$10.00
Lease Year 52
Aug 1 2057
$10.00
Lease
Year 3
Aug 1 2008
$10.00
Lease Year 53
Aug 1 2058
$10.00
Lease
Year 4
Aug 1 2009
$10.00
Lease Year 54
Aug 1 2059
$10.00
Lease
Year 5
Aug 1 2010
$10.00
Lease Year 55
Aug 1 2060
$10.00
Lease
Year 6
Aug 1 2011
$10.00
Lease Year 56
Aug 1 2061
$10.00
Lease
Year 7
Aug 1 2012
$10.00
Lease Year 57
Aug 1 2062
$10.00
Lease
Year 8
Aug 1 2013
$10.00
Lease Year 58
Aug 1 2063
$10.00
Lease
Year 9
Aug 1 2014
$10.00
Lease Year 59
Aug 1 2064
$10.00
Lease
Year 10
Aug 1 2015
$10.00
Lease Year 60
Aug 1 2065
$10.00
Lease
Year 11
Aug 1 2016
$10.00
Lease Year 61
Aug 1 2066
$10.00
Lease
Year 12
Aug 1 2017
$10.00
Lease Year 62
Aug 1 2067
$10.00
Lease
Year 13
Aug 1 2018
$10.00
Lease Year 63
Aug 1 2068
$10.00
Lease
Year 14
Aug 1 2019
$10.00
Lease Year 64
Aug 1 2069
$10.00
Lease
Year 15
Aug 1 2020
$10.00
Lease Year 65
Aug 1 2070
$10.00
Lease
Year 16
Aug 1 2021
$10.00
Lease Year 66
Aug 1 2071
$10.00
Lease
Year 17
Aug 1 2022
$10.00
Lease Year 67
Aug 1 2072
$10.00
Lease
Year 18
Aug 1 2023
$10.00
Lease Year 68
Aug 1 2073
$10.00
Lease
Year 19
Aug 1 2024
$10.00
Lease Year 69
Aug 1 2074
$10.00
Lease
Year 20
Aug 1 2025
$10.00
Lease Year 70
Aug 1 2075
$10.00
Lease
Year 21
Aug 1 2026
$10.00
Lease Year 71
Aug 1 2076
$10.00
Lease
Year 22
Aug 1 2027
$10.00
Lease Year 72
Aug 1 2077
$10.00
Lease
Year 23
Aug 1 2028
$10.00
Lease Year 73
Aug 1 2078
$10.00
Lease
Year 24
Aug 1 2029
$10.00
Lease Year 74
Aug 1 2079
$10.00
Lease
Year 25
Aug 1 2030
$10.00
Lease Year 75
Aug 1 2080
$10.00
Lease
Year 26
Aug 1 2031
$10.00
Lease Year 76
Aug 1 2081
$10.00
Lease
Year 27
Aug 1 2032
$10.00
Lease Year 77
Aug 1 2082
$10.00
Lease
Year 28
Aug 1 2033
$10.00
Lease Year 78
Aug 1 2083
$10.00
Lease
Year 29
Aug 1 2034
$10.00
Lease Year 79
Aug 1 2084
$10.00
Lease
Year 30
Aug 1 2035
$10.00
Lease Year 80
Aug 1 2085
$10.00
Lease
Year 31
Aug 1 2036
$10.00
Lease Year 81
Aug 1 2086
$10.00
Lease
Year 32
Aug 1 2037
$10.00
Lease Year 82
Aug 1 2087
$10.00
Lease
Year 33
Aug 1 2038
$10.00
Lease Year 83
Aug 1 2088
$10.00
Lease
Year 34
Aug 1 2039
$10.00
Lease Year 84
Aug 1 2089
$10.00
Lease
Year 35
Aug 1 2040
$10.00
Lease Year 85
Aug 1 2090
$10.00
Lease
Year 36
Aug 1 2041
$10.00
Lease Year 86
Aug 1 2091
$10.00
Lease
Year 37
Aug 1 2042
$10.00
Lease Year 87
Aug 1 2092
$10.00
Lease
Year 38
Aug 1 2043
$10.00
Lease Year 88
Aug 1 2093
$10.00
Lease
Year 39
Aug 1 2044
$10.00
Lease Year 89
Aug 1 2094
$10.00
Lease
Year 40
Aug 1 2045
$10.00
Lease Year 90
Aug 1 2095
$10.00
Lease
Year 41
Aug 1 2046
$10.00
Lease Year 91
Aug 1 2096
$10.00
Lease
Year 42
Aug 1 2047
$10.00
Lease Year 92
Aug 1 2097
$10.00
Lease
Year 43
Aug 1 2048
$10.00
Lease Year 93
Aug 1 2098
$10.00
Page 49 of 53
Lease Year 44
Aug 1 2049
$10.00
Lease Year 94
Aug 1 2099
$10.00
Lease Year 45
Aug 1 2050
$10.00
Lease Year 95
Aug 1 2100
$10.00
Lease Year 46
Aug 1 2051
$10.00
Lease Year 96
Aug 1 2101
$10.00
Lease Year 47
Aug 1 2052
$10.00
Lease Year 97
Aug 1 2102
$10.00
Lease Year 48
Aug 1 2053
$10.00
Lease Year 98
Aug 1 2103
$10.00
Lease Year 49
Aug 1 2054
$10.00
Lease Year 99
Aug 1 2104
$10.00
Lease Year 50
Aug 1 2055
$10.00
Page 50 of 53
EXHIBIT "E"
LETTER OF ACKNOWLEDGEMENT
TO: Initial Lessee, or its assigns
Address of Initial Lessee, or its assigns
DATE:
This letter is given to (.....Initial Lessee....) as an acknowledgement in regard to the
Affordable Housing Unit that I am purchasing. I hereby acknowledge the following:
• That I meet the requirements set forth in the Affordable Restrictions to purchase
an affordable unit. I understand that the unit I am buying is being sold to me at a
price restricted below fair market value for my, future similarly situated persons
and Monroe County's benefits.
• That the Affordable Housing Unit that I am purchasing is subject to a 99-year
ground lease by and between Monroe County, a political subdivision of the State
of Florida, and (hereinafter "Lease") and
therefore I will be subleasing a parcel of land.
• That my legal counsel, has explained to me the
terms and conditions of the Lease, including without limitation the meaning of the
term "Affordable Restrictions", and other legal documents that are part of this
transaction. If I have not had legal counsel, I state here that I have had an
opportunity to have obtain such counsel, understand its importance, and have
knowingly proceeded to closing without it.
• That I understand the terms of the Lease and how the terms and conditions set
forth therein will affect my rights as an owner of the Affordable Housing Unit,
now and in the future.
• That I agree to abide by the Affordable Restrictions, as defined in the Lease, and I
understand and agree for myself and my successors in interest that Monroe
County may change some of the Affordable Restrictions over the 99-year term of
the Lease and that I will be expected to abide by any such changes.
• That I understand and agree that one of the goals of the Lease is to keep the
Affordable Housing Units affordable from one owner to the next, and I support
this goal.
• That in the event I want to sell my Affordable Housing Unit, I must comply with
the requirements set forth in the Lease, including but not limited to the price at
which I might be allowed to sell it, the persons to whom I might be allowed to sell
it to and that the timing and procedures for sales will be restricted.
• That my lease prohibits me from severing the improvements from the real
property.
• That my family and I must occupy the Affordable Housing Unit and that it cannot
be rented to third parties without the written approval of the Lessor.
Page 51 of 53
I understand that in the event that I die, my home may be devised and occupied by
my wife, my children or any other heirs so long as they meet the requirements for
affordable housing as set forth in the Lease.
That I have reviewed the terms of the Lease and transaction documents and that I
consider said terms fair and necessary to preserve affordable housing and of
special benefit to me.
I hereby warrant that I have not dealt with any broker other than
in connection with the consummation of the
purchase of the Affordable Housing Unit.
Page 52 of 53
EXHIBIT "F"
Modified or Additional Conditions
This modification or
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee
additional condition
(ADDITIONAL PROVISION]. Initial Lessee acknowledges that there shall be
shall:
reserved by this Lease a right of first refusal in favor of Lessor to purchase or
designate purchasers for anyAffordable Housing Units offered for sale or lease.
Initial Lessee shall provide Lessor with written notice of its intent to commence
X NOT APPLY
marketing efforts and Lessor shall have ninety (go) days from the date of
Lessor's receipt of the notice to enter into a reservation agreement with Initial
APPLY
Lessee for the purchase/lease of all or a portion of the Affordable Housing Units,
unless Initial Lessee has been authorized, in writing (which the omission of this
provision may itself constitute), by Lessor to sell the Affordable Housing Units to
to this Lease.
individuals otherwise qualified to own/rent the Affordable Housing Units and
subject to all other affordable housing covenants of record. Notwithstanding
anything contained herein to the contrary, all purchasers/lessees of such
Affordable Housing Units shall meet Lessor's requirements of moderate or lesser
income affordable housing, adjusted for family size, and any other applicable
Affordable Restrictions.
Page 53 of 53