Item C02
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 2 L 2008
Division: Housing & Community Development
Bulk Item: Yes X
No
Department: Housing & Community Development
Staff Contact Person: James R. "Reggie" Paros/289-6002
AGENDA ITEM WORDING:
Approval of Third Amendment to Ground Lease Agreement between Monroe County and Sea Grape
Apartments, LTD, to extend the deadline to commence construction of Project
ITEM BACKGROUND: At their August 15,2007 meeting, the Board accepted the Sea Grape
Apartments-Phase 1 site in Marathon from the Monroe County Land Authority and approved a 99-year
Ground Lease. The Lessee has not received the development approvals necessary to commence
construction by the deadline established in the Lease and the Lessee request an extension of the
deadline to December 31,2008.
PREVIOUS RELEVANT BOCC ACTION: 1) On February 20, 2008, Board approved First
Amendment to Ground Lease Agreement to extend the deadline to commence construction of proj ect;
Board approved Deed of Conservation Easement in favor of the South Florida Water Management
District for Sea Grape Apartments, LTD. 2) On March 19,2008, Board approved Second Amendment
to Ground Lease Agreement to make the Lessee responsible for all permit applications and
submissions.
CONTRACT/AGREEMENT CHANGES: The attached amendment extends the deadline to
commence construction from May 30, 2008 to December 31,2008.
STAFF RECOMMENDATIONS: Approval
TOTAL COST:
N/A
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH Year
APPROVED BY: County Atty YES OMB/Purchasing N/ A Risk Management N/ A
DOCUMENTA TION:
Included X
Not Required_
DISPOSITION:
AGENDA ITEM #
Revised 8/06
This Instrument Was Prepared By:
.
Richard E. Deutch, Jr., Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler St., Suite 2200
Miami, Florida 33130
THIRD AMENDMENT TO GROUND LEASE AGREEMENT
(Sea Grape Apartments Phase I)
THIS THIRD AMENDMENT (hereinafter "Amendment") to the Ground Lease
Agreement (hereinafter "Lease") is made and entered into in Key West, Monroe County,
Florida, on this _ day of , 2008, by and between MONROE COUNTY
(hereinafter "Lessor") and SEA GRAPE APARTMENTS, LTD., a Florida limited partnership
(hereinafter "Lessee").
RECITALS
WHEREAS, the parties entered into the Lease dated September 28, 2007 and
recorded in Official Records Book 232-3 at Page 795, which Lease was amended by First
Amendment to Ground Lease Agreement recorded in Official Records Book 2357, Page
829, and further amended by Second Amendment to Ground Lease Agreement recorded
in Official Records Book 2357, Page 832; and
WHEREAS, the purpose of the lease is to allow Lessee to construct and manage
56 units of affordable rental housing known as Sea Grape Apartments Phase I; and
WHEREAS, Lessee has not received the development approvals necessary to
commence construction by the deadline established in the Lease and Lessee requests an
extension of said deadline;
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
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1. Section 14.01 (~) of the Lease is deleted and replaced with the following:
(a) Initial Lessee shall commence construction of the Project by December 31,
2008, 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.
2. Section 20.16 of the Lease is deleted and replaced with the following:
Initial Lessee's obligations to proceed with and complete the project under 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 or other customary easements (e.g.,
utility) necessary or convenient for a project of this type. Lessor shall grant Lessee or
its affiliates reasonable and customary easements required for Lessee or its affiliates or
proceed with Phase II, should that phase proceed as contemplated herein. Lessor's
obligation to grant such easements shall subject be to Lessor's attorney's review and
approval for substance and form of easement instruments, which approval shall not be
unreasonably withheld, delayed or conditioned. Lessor shall make objection to any
proposed easement instruments within fifteen (15) business days of receipt of copies
thereof, or Lessor's approval shall be deemed granted. Therefore, in the event Initial
Lessee is unable to obtain financing, permits or adequate cross easements so as to
permit beginning of the eighteen (18)-month construction period provided for herein by
no later than December 31, 2008, either party may terminate this Lease and/or the
associated Sea Grape II, Ltd. Lease (a similar contemplated lease for the adjoining
parcel generally to encompass the real property depicted and legally described as
"Phase II" on Exhibit B hereto). Termination of the Lease under such circumstances
shall constitute effective, full and immediate conveyance and assignment to Lessor of
all the Demised Premises, improvements, interests in and materials and redevelopment
rights to and associated with the Demised Premises and the Project subject to
mortgagee protection as provided"' herein, as well as the immediate turnover by the
Initial Lessee (and any person or entity affiliated with it) to Monroe County and/or the
City of Marathon, Florida (in any manner the Monroe County Board of County
Commissioners and the City of Marathon City Council may jointly request) any and all
allocated or reserved Affordable Housing Unit allocations (commonly loosely referred to
in Monroe County as "RaGas" and estimated here to number more or less twenty eight
(28) allocations for the contemplated "Phase II" , of the overall "Sea Grape" project).
Moreover, upon termination of this Lease at any time during the first fifteen (15) years
ofthe Term, where due to Initial Lessee's default or inability to perform its obligations to
complete construction or to subsequently maintain and/or manage the project as
contemplated by this Lease (subject to various partie's cure rights), the Initial Lessee
and any successor to its title, rights or interests in or to the aforementioned adjoining
parcel contemplated for the "Phase II" aspect of the "Sea Grape" development (as
reflected by among other things, that certain Development Order #2007-01, dated
1/31/07, ,as recorded in O.R. Book 2281, Page 1416, of the Public Records of Monroe
County, Florida), sQilll accede to and grant Lessor or its assigns commercially and
customary reasonable easements and the like with respect to the adjoining parcel in
favor of the Demised Premises that may be necessary for its feasible development.
Initial Lessee represents and warrants that it is affiliated or has substantive
relationships with the Carlisle Group, Inc., and that company's principals and affiliates,
and that the Initial Lessee and the person executing this Lease for the Initial Lessee is
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authorized to bind any of the foregoing parties to the potential obligation to return
Affordable Housil4g Unit allocations/reservations/ROGOs, to Monroe County and/or the
City of Marathon as set forth in this paragraph, or the aforementioned Development
Order #2007-01. Initial Lessee hereby acknowledges that in the event Initial Lessee
terminates this Agreement or the related contemplated "Phase II" development or any
Lease related thereto, for failure to timely begin and proceed with construction under
applicable lease 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 "Phase II" Property shall be deemed surrendered
back to and returned to Monroe County and/or the City of Marathon. Additionally, Initial
Lessee ag ree that if LI HTC 0 r other g ua rantees of fu nd ing for the contem plated "Phase
II" follow-on aspect of the overall Sea Grape project are not secured with written notice
of same provided to Monroe County and the City of Marathon by July 15, 2008, or if an
agreement/commitment with Initial Lessee or a party affiliated with Carlisle Group, Inc.,
or any of its principals or affiliates, to have permits for construction received for "Phase
II" by no later than December 31, 2008 is not consummated by August 1, 2008, then
the allocation or reservation of the aforementioned more or less twenty-eight (28)
ROGO allocations shall be returned or othelWise released to Monroe County and/or the
City of Marathon (in any manner the Monroe County Board of County Commissioners
and the City of Marathon City Council may jointly request).
3. The remaining terms of the Lease, not inconsistent herewith, shall remain in full
force and effect. '
[Signatures appear on the following pages]
G:\W.RED\34756. Carlisle\089 - Sea Grape\Sea Grape G. Lease Phase l\Final Ground Lease Docs\Ground Lease Third Amendment.doc
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IN WITNESS WHEREOF, the Lessor and the Lessee have hereunto set their hands
and seals, as of the day and year above written.
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(Seal)
ATTEST: DANNYL. KOLHAGE,CLERK
LESSOR: MONROE COUNTY
By:
Deputy Clerk
Mayor
Signed, Sealed and Delivered
in ~~two witnesses:
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Printed Name
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
.Tj1~ foregoing instrument was aCkno~ledged ~efore me this ,_:,.(?{U day of
({;;ii, ,2008, by Lloyd J. Boggio, as President of and forTCG Sea Grape,
i~c, a ~ida limited liability company, the general partner of Sea Grape Apartments, Ltd.,
a Florida limited partnership, on behalf of both entities, who is f- fpersonaliy known to me,
or who [ ] has produced a drivers license as identification.
NOf;ry Public
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JOINDER OF MORTGAGEE
The undersigned, Wachovia Bank, National Association, as Mortgagee (the
"Mortgagee") under that certain Leasehold Mortgage given by Sea Grape Apartments,
Ltd., a limited partnership, in favor of Mortgagee, dated September 26,2007 and recorded
in Official Records Book 2323 at Page 852 of the Public Records of Monroe County,
Florida, covering all/or a portion of the premises which are described in the foregoing Third
Amendment To Ground Lease Agreement, does hereby consent to the terms and
conditions contained therein.
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_,"_ it IN WITNESS WHEREOF, these presents have been executed t is ~ day
of \ "i \ (L-"J'--- , 2008.
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WITNESSES: - ./ "',-- WAC~VIA B~NK, National Asso ation
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STATE OF'-'l"ui L-r;J( C ~1 /L.~-L;'::J
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COUNTY OF 'JJL<}<al1b. .:_1 (f-)
_ , BEFORE ME, the undersigned authority, this day appeared
--'>~~<""'d..-;.nsi<- '~~~~nown by me to be the ~\'{\c..v_(.)'c~(",-'~..of Wachovia
Bank, National Association and she/he acknowledged to anlJ oefore me that she/he
executed the said instrument, acting in her/his said official capacity, for and as to the act
and deed of said association and in its name, for the uses and purposes therein
mentioned, and after being duly authorized and directed. She/he is: ~ personally known to
me, or [] produced _ __ __ as identificaTIon. ('"
_ +11, WITNESS my hand and official Seal in the County and State aforesaid, on this, the
\ -3 day of \'1\'("-'-. " , 2008.
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