Item S1 Liz Yongue
From: Gomez-Krystal <Gomez-Krystal@MonroeCounty-FL.Gov>
Sent: Friday, September 6, 2024 10:48 AM
To: Ballard-Lindsey; County Commissioners and Aides; Kevin Madok; Pamela G. Hancock;
Senior Management Team and Aides; Liz Yongue; InternalAudit; Hunt-Kacey
Cc: Shillinger-Bob; Williams-Jethon; Cioffari-Cheryl; Livengood-Kristen; Rubio-Suzanne;
Pam Radloff; County-Attorney; Allen-John; Danise Henriquez; Hurley-Christine; Rosch-
Mark; Gambuzza-Dina; Beyers-John; InternalAudit; Valcheva-Svilena; Beyers-John;
Powell-Barbara
Subject: Add On item S1 BOCC 09/11/2024
Attachments: AIS 3018 S1.pdf, BACKUP 1 S1.pdf, BACKUP 2 S1.pdf, BACKUP 3 S1.pdf
Good Morning,
Please be advised,the following Add On Item is set for inclusion day-of meeting prior to the approval of the Agenda:
"Rescission of 99 year Ground Lease between Monroe County and Habitat for Humanity ofKey West and
Lower Florida Keys, Inc. a Florida not for profit corporation,for Block 1, Lots 4 and S, Cudjoe Ocean Shores
(PB 5-107), Parcel ID#00186920-000000 and 00186930-000000; 22936 Overseas Hwy, ocean side of Cudjoe
Key, MM22, contingent upon Habitat's receipt of 4 certificates of occupancy for 4 affordable housing units to
be occupied by households whose income doesn't exceed 80% of area median income approved on July 17,
2024 and approval of a revised 99year Ground Lease between Monroe County and Habitat for Humanity of
Key West and Lower Florida Keys, Inc. a Florida not for profit corporation,for Block 1, Lots 4 and S, Cudjoe
Ocean Shores (PB 5-107), Parcel ID#00186920-000000 and 00186930-000000; 22936 Overseas Hwy, ocean
side of Cudjoe Key, MM22, contingent upon Habitat's receipt of 4 certificates of occupancy for 4 affordable
housing units to be occupied by households whose income doesn't exceed 120% of area median income. "
The Agenda Item Summary is attached.Once approved,this will be considered Add On Item S1.
Sincerely,
Executive Administrator
Monroe County Administrator's Office
1100 Simonton Street, Suite 2-205
Key West, FL 33040
(305)292-4441 (Office)
(305)850-8694(Cell)
Courier Stop#1
Notary Public
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2
S1
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE i Mayor Holly Merrill Raschein,District 5
The Florida Keys Mayor Pro Tern James K.Scholl,District 3
Craig Cates,District 1
Michelle Lincoln,District 2
' David Rice,District 4
Board of County Commissioners Meeting
September 11, 2024
Agenda Item Number: S1
2023-3018
BULK ITEM: DEPARTMENT: County Land Acquisition And Land
Management
TIME APPROXIMATE: STAFF CONTACT: Christine Hurley
No
AGENDA ITEM WORDING: Rescission of 99-year Ground Lease between Monroe County and
Habitat for Humanity of Key West and Lower Florida Keys, Inc. a Florida not for profit corporation, for
Block 1, Lots 4 and 5, Cudjoe Ocean Shores (PB 5-107), Parcel ID#00186920-000000 and 00186930-
000000; 22936 Overseas Hwy, ocean side of Cudjoe Key, MM 22, contingent upon Habitat's receipt of
4 certificates of occupancy for 4 affordable housing units to be occupied by households whose income
doesn't exceed 80% of area median income approved on July 17, 2024 and approval of a revised 99-
year Ground Lease between Monroe County and Habitat for Humanity of Key West and Lower Florida
Keys, Inc. a Florida not for profit corporation, for Block 1, Lots 4 and 5, Cudjoe Ocean Shores (PB 5-
107), Parcel ID#00186920-000000 and 00186930-000000; 22936 Overseas Hwy, ocean side of Cudjoe
Key, MM 22, contingent upon Habitat's receipt of 4 certificates of occupancy for 4 affordable housing
units to be occupied by households whose income doesn't exceed 120% of area median income.
ITEM BACKGROUND:
This subject property was originally purchased by Habitat for Humanity of Key West and Lower
Florida Keys, Inc. with a loan from the Monroe County Land Authority (MCLA). The property will be
conveyed to Monroe County when Habitat obtains 4 certificates of occupancy (CO's) for the 4 units
they are constructing on site. Upon conveyance the MCLA has agreed to forgive the loan. On July 17,
2024, the BOCC approved a 99-year Ground Lease between Monroe County and Habitat for Humanity
of Key West and Lower Florida Keys, Inc. for this site after conveyance.
Originally, the lease indicated all 4 families must earn less than 80% of Area Median Income (AMI)
pursuant to a Land Use Restriction Agreement(LURA)with the MCLA. The site also has an
Employee Housing Deed Restriction which restricts qualifying families to 120% of AMI. Upon
Habitat's request, MCLA has agreed to amend the LURA to allow families earning less than 160% of
AMI to qualify for the units as allowed by the MCLA. Because of these amendments, the County's lease
must be amended. Due to the affordable housing restrictions associated with the site, County staff
recommends rescinding the lease approved on July 17, 2024 and substituting with a new lease which
allows families earning less than 120% of AMI to qualify for these units.
1
The lease shall be recorded simultaneously when the property is conveyed to the County to allow the
households purchasing the units to earn up to 120%AMI, consistent with the Monroe County
Employee Housing Deed Restriction recorded at time of permitting.
PREVIOUS RELEVANT BOCC ACTION:
7/17/24: BOCC approved a 99-year Ground Lease between Monroe County and Habitat for Humanity
of Key West and Lower Florida Keys, Inc. a Florida not for profit corporation.
4/20/22: BOCC approved Resolution 130-2022 nominating the property for purchase by Habitat for
Humanity of Key West and Lower Florida Keys, Inc. and requesting MCLA to issue a mortgage loan to
finance Habitat's purchase
INSURANCE REQUIRED:
Yes
CONTRACT/AGREEMENT CHANGES:
Rescinding the lease approved at the July 17, 2024 BOCC meeting and executing a new lease which
adjusts the maximum income level from 80% of Area Median Income(AMI) to 120%AMI
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
BOCC Lease to Habitat TOMRYANINC
BOCC Resolution 130-2022
Letter to BOCC RE Cudjoe Shores Ground lease - Final.pdf
FINANCIAL IMPACT:
N/A
2
LEASE
BETWEEN
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
"LESSOR"
AND
HABITAT FOR HUMANITY OF KEY WEST AND LOWER FLORIDA KEYS, INC., a
Florida not for profit corporation
"LESSEE"
DATED , 2024
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 8
VII Mechanics' Liens 11
VIll Governing Law, Cumulative Remedies 12
IX Indemnification of Lessor 12
X Insurance 13
XI Insurance Premiums 17
XII Assignment 17
XIII Condemnation 21
XIV Construction 22
XV Mortgage Financing 22
XVI Default 23
XVII Repair Obligations 25
XVIII Additional Covenants of Lessee, Lessor 26
XIX Representations, Warranties of Title and Quiet 27
Enjoyment
XX Miscellaneous 28
Page 2 of 39
GROUND LEASE AGREEMENT
THIS LEASE made and entered into in Key West, Monroe County, Florida, on this
day of , 2024, by and between MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS (referred to as the "Lessor") and HABITAT FOR HUMANITY OF KEY
WEST AND LOWER FLORIDA KEYS, INC., a Florida not for profit corporation (referred
to as the"Lessee" or"Initial Lessee").
RECITALS
WHEREAS, Lessor is the owner in fee simple of the property located at 22936 Overseas
Highway, Cudjoe Key, Florida 33042, Monroe County, Florida, and more particularly described
on the attached Exhibit"A" (hereinafter"Property"); and,
WHEREAS, it is Lessor's intent that the Property be developed to provide affordable
housing for residents of Monroe County; and,
WHEREAS, Lessee desires to develop the Property and build and sell four (4) single-
family affordable housing unit (provided allowed by County regulations and hereinafter the
"Affordable Housing Unit") ; 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 Section 101-1 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.
"Affordable Restrictions" shall mean the affordable or employee housing regulations as set
forth in Section 101-1 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
Page 3 of 39
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. 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 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.
"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 Unit. 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.
"Effective Date" shall mean the date this Lease is fully executed and delivered by all parties
and the date that the Lessee shall be entitled to begin to occupy the Demised Premises for purposes
of development and construction of the Project.
"Initial Lessee" means HABITAT FOR HUMANITY OF KEY WEST AND LOWER
FLORIDA KEYS, INC., a Florida not for profit corporation, developer of the Affordable Housing
Unit.
,,Lease" shall mean this lease for the creation of the Affordable Housing Unit 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
Page 4 of 39
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 parry designated by the Lessor,by written
notice to all parties, to administer or enforce some or any portion of the provisions of this Lease
or the Affordable Restrictions.
"Lessee" means the Initial Lessee and its successors and assigns.
"Project" shall mean the required development of the Demised Premises, primarily the
required construction of Affordable Housing Unit 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 Unit and marketing of the Affordable Housing Unit.
"Related Agreements" shall mean any purchase and sale or other agreement entered into
with Monroe County contemporaneously and in conjunction with this Lease.
"Rent" shall mean any sum of money due to the Lessor under this Lease for any reason.
The term Rent as used herein,should not be misconstrued to preclude definition and distinguishing
of rent, rental rates and other such other terms as may be provided for in Subleases and/or the
Affordable Restrictions.
"Sale" and Sell" as used herein shall be broadly and liberally construed so as to encompass,
where contextually appropriate, any ground subleasing, sale, grant, assignment or other
conveyance of an interest in any portion of the Demised Premises authorized pursuant to this
Lease, but excluding any rental of an Affordable Housing Unit(which may be more particularly
discussed herein or in the Affordable Restrictions) and any 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,but excluding
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. 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 Unit 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(
Page 5 of 39
) their interest(s) in the Affordable Housing Unit, would qualify for "Employee Housing" as
defined under Section 101-1 of the Monroe County Code and who is gainfully employed in, and
derives at least seventy percent(70%)of their income from, Monroe County from the time of their
purchase of an Affordable Housing Unit. Additionally, except as may be otherwise permitted by
this Lease, in order to remain eligible to retain ownership of and to reside in their Affordable
Housing Unit into retirement, in addition to complying with any otherwise applicable provisions
in the Affordable Restrictions, purchasers of all Affordable Housing Units must for the five (5)
years immediately following their purchase continue to earn at least seventy percent(70%)of their
family income from gainful employment within the County.
"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 2.01 Lessor's Demise. Upon the terms and conditions hereinafter set forth, and
in consideration of the payment of the Rents and the prompt and full performance by the Initial
Lessee of these covenants and the terms and conditions of any Related Agreements,to be kept and
performed by the Initial Lessee,the Lessor does lease, let, and demise to the Initial Lessee and the
Initial Lessee hereby leases from the Lessor, the 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.
(d) That certain Monroe County Planning Department Employee Housing Deed
Restriction dated April 20, 2021 and recorded May 21, 2021 in Official Records Book 3099,Page
909 Public Records of Monroe County, Florida.
Page 6 of 39
ARTICLE III
Term
Section 3.01 Term. To have and to hold the Demised Premises for a term of ninety-nine
(99)years commencing on the Commencement Date, and ending ninety-nine(99)years thereafter,
both dates inclusive, unless sooner terminated, or extended, as hereinafter provided (the
"Termination Date"). Lessee shall be given possession on the Effective Date and the terms and
conditions set forth herein shall be binding on the parties as of the Effective Date. Lessee shall
have the right to occupy the Demised Premises as of the Effective Date in order to allow Lessee
to commence construction, as well as other activities related to the development and construction
of the Project. As herein set forth,the Term will not commence until the 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 4.01 Annual Base Rent. Lessee covenants and agrees to pay to Lessor promptly
when due, without notice or demand, and without deduction or offset, Annual Base Rent
throughout the Term of this Lease beginning on the Commencement Date, in the amount of One
Dollars ($1.00) per Lease Year or partial Lease Year. Lessee shall pay to Landlord said Annual
Base Rent on the first day of the second month of each Lease Year throughout the term of this
Lease.
Section 4.02. All amounts payable under Section 4.01 hereof, as well as all other
amounts payable by Lessee to Lessor under the terms of this Lease, shall be payable in lawful
money of the United States which shall be legal tender in payment of all debts and dues, public
and private, at the time of payment, each payment to be paid to Lessor at the address set forth
herein or at such other place within the continental limits of the United States as Lessor shall from
time to time designate by notice to Lessee. Except for any income tax payable by the Lessor,
Lessee shall pay any and all taxes, including any local surcharge or other tax, on the Rent payable
pursuant to this Lease in addition to the sums otherwise set forth herein.
Section 4.03. It is intended that the Rent shall be absolutely net to Lessor throughout the
Term, free of any taxes, costs,utilities, insurance expenses, liabilities, charges or other deductions
whatsoever, with respect to the Demised Premises and/or the ownership, leasing, operation,
maintenance, repair, rebuilding, use or occupation thereof.
Section 4.04. All amounts payable by Lessee to Lessor under any of the provisions of
this Lease, if not paid when due as provided for in this Lease, shall bear interest at the highest rate
Page 7 of 39
allowable under Florida law from the time they become due until paid in full by Lessee. In
addition, Lessee shall pay a late fee in the amount of ten (10%) percent of any amount due from
Lessee to Lessor which is not paid within ten (10) days of the payment due date for any sums due
for Rent and within thirty (30) days for any other sums due from Lessee pursuant to this Lease;
provided, however, such payment shall not excuse or cure any default by Lessee under this Lease.
It is agreed by the parties hereto that Lessee shall reimburse Lessor for collection charges incurred
as a result of the overdue Rent which may include but shall not be limited to related attorneys'
fees,regardless of whether suit is brought. Such late fee shall be in addition to any interest payable
by Lessee as set forth herein from Lessee's failure to pay any Rent due hereunder. In the event
that any check, 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 of Fifty Dollars ($50.00). In
addition, Lessor shall be reimbursed by Lessee for any costs incurred by Lessor as a result of said
instrument being dishonored.
ARTICLE V
Non-Subordination
Section 5.01 Non-Subordination. Notwithstanding anything to the contrary contained in
this Lease, the fee simple interest in the Demised Premises shall not be subordinated to any
leasehold mortgage, lien or encumbrance of any nature. 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 6.01 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 of the Affordable Housing Unit to Sublessees,
or be associated with any document (to which the Lessee is a parry) 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.
Page 8 of 39
Section 6.02 Sublessee's Obligations. As additional Rent, any Sublessee 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, or be associated with any document (to which the Sublessee is a parry) creating or
transferring an interest or estate in the respective portion of the Demised Premises.
Section 6.03 Obligations Altered. Nothing herein shall require the Lessee to pay
municipal, state, or federal income taxes assessed against the Lessor, municipal, state, or federal
capital levy, estate, gift, succession, inheritance or transfer taxes of the Lessor, or Lessor's legal
representative, corporate franchise taxes imposed upon any corporate owner of the fee of the
Demised Premises;provided,however,that if at any time during the term of this Lease the methods
of taxation prevailing at the commencement of the term hereof shall be altered so as to cause the
whole or any part of the taxes, assessments, levies, impositions or charges now levied, assessed
and imposed, wholly or partially as a capital levy, or otherwise, on the rents received therefrom,
or of any tax, corporation franchise tax, assessments, levy (including, but not limited to any
municipal, state or federal levy), imposition or charge, or any part thereof, shall be measured by
or based in whole or in part upon the Demised Premises and shall be imposed upon the Lessor,
then all such taxes, assessments, levies, impositions or charges, or the part thereof so measured or
based, shall be paid and discharged by the Lessee. All rebates on account of any taxes, rates,
levies, charges or assessments required to be paid shall belong to Lessee.
Section 6.04 Mode of Payment. The Lessee (and any Sublessee, as to their specific
interests in the Demised Premises) shall pay the taxes and other charges as enumerated in this
Article VI and shall deliver official receipts evidencing such payment to the Lessor (Sublessees
shall only deliver receipts as may be required by the Affordable Restrictions), which payment of
taxes shall be made and the receipts delivered, at least thirty (30) days before the tax, itself,would
become delinquent in accordance with the law then in force governing the payment of such tax or
taxes. If, however, the Lessee desires to contest the validity of any tax or tax claim, the Lessee
may do so without being in default hereunder,provided the Lessee gives the Lessor notice of the
Lessee's intention to do so and furnishes the Lessor or the applicable governmental agency with a
bond with a surety made by a surety company qualified to do business in the State of Florida or
pays cash to a recognized escrow agent in Monroe County,one and one half(1 1/z)times the amount
of the tax item or items intended to be contested, conditioned to pay such tax or tax items when
the validity thereof shall have been determined, and which written notice and bond or equivalent
cash shall be given by the Lessee to the Lessor, not later than sixty (60) days before the tax item
or items proposed to be contested would otherwise become delinquent.
Section 6.05 Lessee's Default. If the Lessee shall fail, refuse or neglect to make any of
Page 9 of 39
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
assessment measures and collection remedies lawfully available to any taxing authority.
Section 6.06 Sublessee's Default. If a Sublessee shall fail, refuse or neglect to make any
of the payments required in this Article, then the Lessor may, but shall not be required to,pay the
same, and the amount or amounts of money so paid, including reasonable attorneys' fees and
expenses which might be reasonably incurred because of or in connection with such payments,
together with interest on all such amounts, at the highest rate allowed by law shall be repaid by the
Sublessee to the Lessor,upon the demand of the Lessor, and the payment thereof may be collected
or enforced by the Lessor in the same manner as though such amount were an installment of Rent
specifically required by the terms of this Lease to be paid by the Sublessee to the Lessor,upon the
day when the Lessor demands repayment thereof or reimbursement therefor of and from the
Sublessee; but the election of the Lessor to pay such taxes shall not waive the default thus
committed by the Sublessee. Notwithstanding the foregoing, Sublessee shall have the right to
contest any taxes and assessments levied against Sublessee; and provided Sublessee files the
appropriate documentation to contest said tax or assessment, Sublessee shall not be in default of
this Lease or obligated to pay any interest or other penalties to Lessor. Nothing herein shall be
construed to prevent or inhibit the assessment measures and collection remedies lawfully available
to any taxing authority.
Section 6.07 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 6.08 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.
Page to of 39
ARTICLE VII
Mechanic's Liens
Section 7.01 No Lien. Neither the Lessee nor any Sublessee shall have the power to
subject the interest of the Lessor in the Demised Premises to any mechanic's or materialmen's lien
of any kind. Lessee shall provide to Lessor prior to initiating construction a construction bond in
accordance with Florida Statute Section 255.05 covering the cost of construction authorized
hereunder.
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, within thirty
(30)days after the Lessee or Sublessee shall have been given written notice of such a claim having
been filed, or within thirty (30) days after the Lessor shall have been given written notice of such
claim and shall have transmitted written notice of the receipt of such claim unto the Lessee or
Sublessee, as the case may be, (whichever thirty (30) 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 (30) days,
in releasing the Lessor and the title of the Lessor from such claim; and the Lessee covenants and
agrees, with respect to any lien or claim attributable to it, within such period of thirty (30) days,
so as to cause the affected portion of the Demised Premises and the Lessor's interest therein to be
released from the legal effect of such claim.
Section 7.03 Lessee's Default. If the Lessee shall fail, refuse, or neglect to perform its
obligations as required in this Article, then the Lessor may, but shall not be required to, pay any
sums required to cause the Demised Premises and the Lessor's interest therein to be released from
the legal effect of such claim and the amount or amounts of money so paid, including reasonable
attorneys' fees and expenses which might be reasonably incurred because of or in connection with
such payments, together with interest on all such amounts at the highest rate allowed by law, shall
be repaid by the Lessee to the Lessor, upon the demand of the Lessor, and the payment thereof
may be collected or enforced by the Lessor in the same manner as though such amount were an
installment of Rent specifically required by the terms of this Lease to be paid by the Lessee to the
Lessor, upon the day when the Lessor demands repayment thereof or reimbursement therefor of
and from the Lessee; but the election of the Lessor to pay such amount shall not waive the default
thus committed by the Lessee.
Section 7.04 Sublessee's Default. If the Sublessee shall fail,refuse, or neglect to perform
its obligations as required in this Article,then the Lessor may,but shall not be required to,pay any
sums required to cause the Demised Premises and the Lessor's interest therein to be released from
the legal effect of such claim and the amount or amounts of money so paid, including reasonable
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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
Section 8.01 Governing Law. All of the rights and remedies of the respective parties
relating to or arising under this instrument and any related documents shall be governed by and
construed under the laws of the State of Florida.
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 9.01 Indemnification by Lessee. During the Term of the Lease, Lessee will
indemnify, defend and save harmless the Lessor against any and all claims, debts, demands or
obligations which may be made against the Lessor or against the Lessor's title in the Demised
Premises, arising out of, or in connection with, or in any way 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
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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, Initial Lessee shall be released from any and
all liability related to such transferred portions of the Demised Premises and the subsequent use
thereof by the Sublessees, their employees, agents, contractors, guests or invitees, including
without limitation any death, injury or damage to person or property in or about the transferred
portions of the Demised Premises, except as otherwise set forth herein. However,this release shall
not constitute a release or waiver of Lessor's rights, if any, or possible entitlement to insurance
coverages required by this Lease.
Lessor shall not be liable to Lessee, or to Lessee's assignees or Sublessees or their
employees, agents, contractors, guests or invitees for any death, injury or damage to person or
property in, about or relating to the Demised Premises. Lessee, on its and its assignees' and their
successors in interests' behalves, including any future Sublessees, or grantees or licensees of the
Initial Lessee , or any guests, invitees or tenants of any of the foregoing, hereby assumes and
covenants for its own and their own acceptance of sole responsibility and liability to all persons
for death, injury or damage related to or arising from the ownership, possession, occupancy and
for use of any portion of the Demised Premises, and also, for all such future occupants, owners,
Lessees, Sublessees,tenants, guests, invitees and licensees,waives and releases forever all claims,
demands and causes of action against Lessor and its officers, employees, agents, successors,
assigns, contractors and representatives for loss of life or injury to person or property, of whatever
nature.
Section 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 9.03 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 10.01 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
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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 Lessee and located in the County in which the Demised Premises is located, and
shall be made available to the Lessee for the construction or repair(including any modification to
the improvements sought by the Lessee and approved in writing by the Lessor with Lessor's
approval not unreasonably withheld), as the case may be, of any building or buildings damaged or
destroyed by fire, flood, windstorm or other casualty for which insurance money shall be payable
and shall be paid out by the 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
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the Affordable Housing Unit untenantable occurring during the last ten (10) 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 electto terminate
this Lease by written notice to Lessor within thirty(30)days after the occurrence of the destruction.
In the event of termination, there shall be no obligation on the part of Lessee to restore or repair
the improvements on the Demised Premises, nor any right of the Lessee to receive any proceeds
collected under any insurance policies covering the improvements. If Lessee elects not to
terminate this Lease in the event of destruction during the last ten (10) years of this Lease, the
proceeds of all insurance covering the improvements shall be made available to Lessee for repairs,
and Lessee shall be obligated to repair as set forth above.
Section 10.02 Commercial General Liability Insurance. The Initial Lessee shall maintain
Commercial General Liability Insurance beginning on the Effective Date and continuing during
the entire Term of this Lease. 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 00-01] 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 $300,000
Each Occurrence $300,000
Contractual Liability $300,000
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 10.03 Environmental Impairment Responsibility. The Lessee and/or its
contractors acknowledge that the performance of this Lease is, or may be, subject to Federal, State
and local laws and regulations enacted for the purpose of protecting, preserving or restoring the
environment. The Lessee shall, at the sole cost of the Lessee or its contractors, be responsible for
full compliance with any such laws or regulations.
Section 10.04 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
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procedure may only be requested on each five (5) year anniversary date of the Lease.
Section 10.05 Proceeds Payable to Mortgagee. If any mortgagee holding a mortgage
created pursuant to the provisions of Article XV elects, in accordance with the terms of such
mortgage, to require that the proceeds of any casualty insurance be held by and paid out by the
mortgagee,then such payment may be made,but in such event, it shall still be obligatory upon the
Lessee to create the complete fund with the leasehold mortgagee in the manner set forth in this
Article to assure complete payment for the work of reconstruction and repair. Any mortgagee
holding insurance proceeds shall require that such proceeds are properly used to ensure repairs,
but any mortgagee shall not be liable for misuse of funds by Sublessee or Lessee.
Section 10.06 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 (10) years of the Lease as set forth above, and retain such amount as
liquidated and agreed upon damages resulting from the failure of the Lessee to promptly, within
the time specified, complete such work of reconstruction and repair.
Section 10.07 Direct Repayment. The foregoing notwithstanding, in the event the
insurance proceeds are the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) or
less, then such proceeds shall be paid directly to the Lessee without the necessity of creating the
joint bank account, and Lessee shall use such funds to make the replacements or repairs. Lessee
shall provide proof satisfactory to Lessor that repairs are completed as required within fifteen (15)
months from the date of such damage or destruction, unless said period is enlarged by delays
caused without fault or neglect on the part of the Lessee.
Section 10.08 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 (30)
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.
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Section 10.09 Subsequent Lessees, Assignees, Sublessees and Grantees. 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 may be required for subsequent interest holders and the same remedies available to
Lessor for Initial Lessee's failure to comply with such insurance requirements shall be available
to Lessor with respect to any future interest holders. Future interest holders (including all
Sublessees) shall name Lessor as an additional insured on any required insurance policies.
ARTICLE XI
Insurance Premiums
Section 11.01 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) fails to obtain and pay for the necessary insurance.
ARTICLE XII
Assignment/Transfer
Section 12.01 Assignment by Initial Lessee. Without the written consent of Lessor, Initial
Lessee shall not assign or sublet any portion of the Demised Premises, or change management of
the Demised Premises, except as otherwise provided herein. Notwithstanding the foregoing,
Lessor acknowledges and agrees that the Affordable Housing Unit is to be developed as a unit for
sale to moderate or lesser income qualified third parties, as defined in the Affordable Restrictions.
Therefore, the Affordable Housing Unit may be sold and occupied without the Initial Lessee
obtaining consent from Lessor for such sale/subletting, provided that Initial Lessee shall follow
the guidelines set forth herein. Notwithstanding the foregoing, a sublessee or owner of a Unit may
not exceed an income level of one hundred twenty percent(120%) of area mean income ("AMI")
at the time of initial occupancy. The Parties acknowledge that the Monroe County Comprehensive
Land Plan Authority ("MCLA") provided funding for the Demised Premises and as such the
Demised Premises and occupants who lease or own thereon are bound by the terms and restrictions
set forth in F.S. Section 380.0666.
Page 17 of 39
Upon the transfer/sale of each Affordable Housing Unit to be sold by Initial Lessee, or any
successor Lessee hereunder, Lessor or its designee shall attorn to the rights of Initial Lessee, or
subsequent Lessee, as the case may be, with respect to each transferred/sold Affordable Housing
Unit. Any proceeds received by Initial Lessee from the sale of the Affordable Housing Unit shall
remain the property of the Initial Lessee unless otherwise provided herein. In conjunction and
contemporaneously with the sale or transfer of each Affordable Housing Unit, Initial Lessee, or
any successor Lessee, shall ensure the release of any and all mortgage, mechanic's lien or other
similar claims with respect to the relevant portion of the Demised Premises other than new
Sublessee purchase money mortgages and the like, as such may be permitted by Article XV.
Upon the foregoing contemplated assignments by Initial Lessee, the Affordable Housing
Unit owners(as Sublessees)shall assume and thereby be assigned Lessee responsibilities to Lessor
for their respective portions of the Demised Premises, releasing Initial Lessee from same for all
such portions, except for design and construction defect liability for which developers/builders are
otherwise responsible under Florida law. Sublessees, however, shall not be construed to have
assumed or have assigned to them by this provision any indemnification duty to Lessor relating to
any portions of the Demised Premises for which they hold no interest. Notwithstanding the
foregoing, Initial Lessee's right to find or identify a qualified purchaser, as set forth below, shall
attorn to the Lessor (unless assigned by Lessor as set forth below) and the Initial Lessee shall be
released from further duty or responsibility to the Lessor for the resale of the Affordable Housing
Unit. It is hereby acknowledged that Lessor shall have the right to assign any of its duties and
rights related to the assignment of Subleases, i.e. finding a qualified purchaser for resales 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.
Section 12.02 Initial Sale/Lease of Unit By Developer/Initial Lessee. Initial Lessee
shall be authorized to sell the Affordable Housing Unit to individuals qualified to own/occupy the
Affordable Housing Unit and subject to all other affordable housing covenants of record.
Notwithstanding anything contained herein to the contrary, all purchasers/Sublessees of such
Affordable Housing Unit shall meet Monroe County's requirements of moderate or lesser income
affordable housing, adjusted for family size, and any other applicable Affordable Restrictions.
Initial Lessee shall upon Lessor's request provide verification in a form and manner reasonably
determined by Lessor that purchasers/sublessees/tenants for all Affordable Housing Units meet the
requirements herein.
Section 12.03 Assignment/Transfer by Sublessees. At such time as any individual Unit
Owner or Sublessee desires to sell, assign or otherwise transfer the Affordable Housing Unit 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.
Page 18 of 39
Section 12.04 Required Notice of Restrictions. Any conveyance, lease, assignment, grant
or other disposition of any interest made with respect to any portion of the Demised Premises, ,
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, USE,
OCCUPANCY, INCOME WHICH MAY NOT EXCEED 120% AMI AND OWNERSHIP
MEANS, RESALE PRICE AND MORTGAGE LIMITATIONS, ARE RESTRICTED
PURSUANT TO THE RESTRICTIONS PROVIDED FOR, INCLUDING BUT NOT
LIMITED TO THOSE SET FORTH IN OFFICIAL RECORDS BOOK_, PAGE _ OF
THE PUBLIC RECORDS OF MONROE COUNTY,FLORIDA AND THOSE SET FORTH
IN THE MONROE COUNTY PLANNING DEPARTMENT EMPLOYEE HOUSING
DEED RESTRICTION RECORDED IN OFFICIAL RECORDS BOOK 3099, PAGE 909,
PUBLIC RECORDS OF MONROE COUNTY, FLORIDA.
The recorded book and page of the first recorded page of this Lease and, for recordable sale or
sublease instruments shall be set forth in the Notice of Restrictions. Any instrument of
conveyance, lease, assignment or other disposition made without following the notice procedures
set forth herein shall be void and confer no rights upon any third person, though such instruments
may in some cases be validated by fully correcting them according to procedures established by
Lessor, as determined in Lessor's sole discretion, so as to ensure compliance with the public
affordability purposes furthered by this Lease and the Affordable Restrictions.
Section 12.05 Follow-on Sales and Assignments of Ground Lease Requirements- Unless
authorized by the Affordable Restrictions or unless otherwise as set forth in subsection e., below,
or in another provision herein,rental of the Affordable Housing Unit is prohibited. In order for an
owner or subsequent owner to sell the 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 parry
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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.
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.
b. 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 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,
to the Habitat for Humanity of Key West and the Lower Florida Keys, Inc., a
Florida not for profit corporation or to Lessor in the event Sublessee is unable to
find a qualified purchaser.
C. No Sublessee shall be authorized to enter into a rental agreement for an Affordable
Housing Unit.
Section 12.06 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 12.07 Death of a Unit Owner. In the event the Owner of an Affordable Housing
Unit dies, Lessor shall,unless for good cause shown, consent to a transfer of the leasehold interest
to the spouse, child(ren) or other heirs, devisees, legatees or beneficiaries of the Affordable
Housing Unit Owner provided that such persons state, in writing, under oath that they have
reviewed the terms of this Lease and any related documents, and that they understand and accept
the terms of this Lease by signing an acknowledgement,which is substantially in a form similar to
that attached hereto as Exhibit D. All spouses, heirs, devisees, legatees or other beneficiaries must
demonstrate to the Lessor's reasonable satisfaction that they qualify for ownership and/or
occupancy of an affected Affordable Housing Unit as provided for under this Lease and in the
Affordable Restrictions. All estates and leasehold or other interests granted in or conveyed with
respect to any of the Demised Premises do not extend to any degree so as to limit or inhibit the
intent and operation of this Lease and the Affordable Restrictions, it being expressly and
irrevocably accepted on behalf of all future Sublessees and all those who would or might succeed
Page 20 of 39
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 XII and cooperate with the Lessor in accomplishing same. It is the intent of this Lease,
to the full extent Florida law permits, that constitutional homestead rights not be construed to
inhibit or limit the intended operation of this provision.
Section 12.08 Administrative Fees. Intentionally Deleted.
Section 12.08. Notwithstanding the foregoing, the Initial Lessee shall be permitted to
assign its rights, title and interest in any common area not previously conveyed to Sublessee, in
connection with a homeowner's association pursuant to Florida Statutes, Chapter 720. In such an
event, the homeowner's association shall be bound by the terms and conditions of this Lease. Any
such common area which the homeowner's association controls shall provide liability insurance
in accordance the insurance requirements set forth herein.
ARTICLE XIII
Condemnation
Section 13.01 Eminent Domain, Cancellation. If, at any time during the continuance of
this Lease, the Demised Premises or any portion thereof is taken, appropriated or condemned by
reason of eminent domain, there shall be such division of the proceeds and awards in such
condemnation proceedings and such abatement of the Rent and other adjustments made as shall
be just and equitable under the circumstances. If the Lessor and the Lessee are unable to agree
upon what division, annual abatement of Rent or other adjustments as are just and equitable,within
thirty (30)days after such award has been made,then the matters in dispute shall be determined in
accordance with 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 13.02 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,
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respectively, are depreciated, damaged, or destroyed by the exercise of the right of eminent
domain. In this connection, if the condemnation is total, the parties agree that the condemnation
award shall be allocated so that the then value of the property, as though it were unimproved
property, shall be allocated to the Lessor, and the then value of the building or buildings thereon
shall be allocated between the Lessor and Lessee after giving due consideration to the number of
years remaining in the Term of this Lease and the condition of the buildings at the time of
condemnation.
ARTICLE XIV
Construction
INTENTIONALLY DELETED.
ARTICLE XV
Mortgage Financing
Section 15.01 Construction Financing By Initial Lessee. Intentionally Deleted.
Section 15.01 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 Unit to a Federal or State Savings
Loan Association, Bank, Trust Company or similar lending institution, as well as to the Lessor as
seller financing, subject to the following requirements:
(a) The mortgage(s) encumbering the Affordable Housing Unit shall not exceed
100% 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;
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(c) In the event of foreclosure sale by a Sublessee's mortgagee or the delivery of
an assignment or other conveyance to a Sublessee's mortgagee in lieu of foreclosure with respect
to any real property subject to the provisions of this Lease, said mortgagee, or the purchaser at
foreclosure, shall comply with the provisions of Article 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. 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
(d) 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 16.01 Notice of Default. Lessee shall not be deemed to be in default under this
Lease in the payment of Rent or the payment of any other monies as herein required unless Lessor
shall first give to Lessee ten (10) days written notice of such default and Lessee fails to cure such
default within ten (10) 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 (30) days written notice of such default, and Lessee fails to cure such default within the
immediate thirty (30) day period thereafter, or, if the default is of such a nature that it cannot be
cured within thirty (30) days, Lessee fails to commence to cure such default within such period of
thirty (30) 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
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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 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 and may remove all persons and personal
property from the affected portions of the Demised Premises. Such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of Lessee, or where
statutory abandonment or unclaimed property law permits, disposed of in any reasonable manner
by Lessor without liability or any accounting therefore.
Included in this right of reentry 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 any time terminate this
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Lease for any breach, in addition to any other remedy it may have,Lessor may recover from Lessee
all damages incurred by reason of such breach, including the cost of recovering the Demised
Premises, which amounts shall be immediately due and payable from Lessee to Lessor.
Section 16.03 Lessor's Right to Perform. In the event that Lessee,by failing or neglecting
to do or perform any act or thing herein provided by it to be done or performed, shall be in default
under this Lease and such failure shall continue for a period of thirty (30) days after receipt of
written notice from Lessor specifying the nature of the act or thing to be done or performed, then
Lessor may, but shall not be required to, do or perform or cause to be done or performed such act
or thing(entering on the Demised Premises for such purposes,with notice, if Lessor shall so elect),
and Lessor shall not be or be held liable or in any way responsible for any loss, inconvenience or
annoyance resulting to Lessee on account thereof, and Lessee shall repay to Lessor on demand the
entire expense thereof, including compensation to the agents and employees of Lessor. Any act
or thing done by Lessor pursuant to the provisions of this section shall not be construed as a waiver
of any such default by Lessee, or as a waiver of any covenant, term or condition herein contained
or the performance thereof, or of any other right or remedy of Lessor, hereunder or otherwise. All
amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when
the amounts become due as provided in this Lease, shall bear interest from the date they become
due until paid at the highest rate allowed by law. Lessor shall have the same rights set forth in this
Section with respect to any future subinterest holder's respective portion of the Demised Premises.
Section 16.04 Default Period. All default and grace periods shall be deemed to run
concurrently and not consecutively.
Section 16.05 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 17.01 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
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committed, except for that of normal wear and tear. The Lessee will repair, replace and renovate
such property as often as it may be necessary in order to keep the buildings and other property
which is the subject matter of this Lease in first class repair and condition. Additionally, Lessor
shall not be required to furnish any services or facilities, including but not limited to heat,
electricity, air conditioning or water or to make any repairs to the premises or to the Affordable
Housing Unit.
ARTICLE XVIII
Additional Covenants of Lessee/Lessor
Section 18.01 Legal Use. The Lessee covenants and agrees with the Lessor that the
Demised Premises will be used primarily for the construction and operation of four(4) individual
affordable single-family home 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 18.03 Recovery of Litigation Expense. In the event of any suit, action or
proceeding, at law or in equity,by either of the parties hereto against the other, or any other person
having, claiming or possessing any alleged interest in the Demised Premises, by reason of any
matter or thing arising out of or relating to this Lease, including any eviction proceeding, the
prevailing party shall recover not only its legal costs, but reasonable attorneys' fees including
appellate,bankruptcy and post judgment collection proceedings for the maintenance or defense of
said action or suit, as the case may be. Any judgment rendered in connection with any litigation
arising out of this Lease shall bear interest at the highest rate allowed by law. Lessor may recover
reasonable legal and professional fees attributable to administration, enforcement and preparation
for litigation relating to this Lease or to the 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 18.04 Condition of the Demised Premises. Lessee agrees to accept the Demised
Premises in its presently existing condition"as-is". It is understood and agreed that the Lessee has
determined that the Demised Premises are acceptable for its purposes and hereby certifies same to
Lessor. Lessee, at its sole cost and expense, shall bring or cause to be brought to the Demised
Premises adequate connections for water, electrical power,telephone, stormwater and sewage and
shall arrange with the appropriate utility companies for furnishing such services with no obligation
therefore on the part of Lessor. The Lessor makes no express warranties and disclaims all implied
warranties. Lessee accepts the 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
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recourse to the Lessor as to the nature, condition or usability of the Demised Premises, or the uses
to which the Demised Premises may be put. The Lessor shall not be responsible for any latent
defect or change of condition in the improvements and personalty, or of title, and the Rent
hereunder shall not be withheld or diminished on account of any defect in such title or property,
any change in the condition thereof, any damage occurring thereto, or the existence with respect
thereto of any violations of the laws or regulations of any governmental authority.
Section 18.05 Hazardous Materials. Lessee, its Sublessees and assignees shall not permit
the presence, handling, storage or transportation of hazardous or toxic materials or medical waste
("hazardous waste") in or about the Demised Premises, except in strict compliance with all laws,
ordinances, rules,regulations, orders and guidelines of any government agency having jurisdiction
and the applicable board of insurance underwriters. In no event shall hazardous waste be disposed
of in or about the Demised Premises. For purposes herein, the term hazardous materials or
substances shall mean any hazardous, toxic or radioactive substance material, matter or waste
which is or becomes regulated by any federal, state or local law, ordinance, order, rule,regulation,
code or any other governmental restriction or requirement and shall include petroleum products
and asbestos as well as improper or excessive storage or use of common household cleaning and
landscaping chemicals,pesticides,batteries and the like, and those materials defined as hazardous
substance or hazardous waste in the Comprehensive Environmental Response Compensation and
Liability Act and/or the Resource Conservation and Recovery Act.
Lessee shall notify Lessor immediately of any 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.
Lessor and Initial Lessee hereby warrant and represent that to the best of their knowledge,
the Demised Premises is free of any hazardous waste.
Section 18.06 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
Section 19.01 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
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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 will not use or occupy
said premises for any unlawful or immoral purpose and will, at Lessee's sole cost and expense,
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 20.03 Written Modifications. No modification, release, discharge or waiver of
any provisions hereof shall be of any force, effect or value unless in writing signed by the Lessor
and Lessee, or their duly authorized agents or attorneys.
Section 20.04 Entire Agreement. This Lease, including the Preamble and any written
addenda and all exhibits hereto (all of which are expressly incorporated herein by this reference)
shall constitute the entire agreement between the parties with respect to this instrument as of this
date. No prior written lease or prior or contemporaneous oral promises or representations shall be
binding.
Section 20.05 Notices. If either party desires to give notice to the other in connection with
and/or according to the terms of this Lease, such notice shall be given by certified mail return
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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 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:
Monroe County Office of the Monroe County
County Attorney 1100 Simonton Street
1111 12th Street, Suite 408 Key West, Florida 33040
Key West, Florida 33040 Attn: County Administrator
Attn: County Attorney
HABITAT FOR HUMANITY OF
KEY WEST AND LOWER
FLORIDA KEYS, INC.
PO Box 5873
Key West, Florida 33040
Section 20.06 Joint Liability. If the parties upon either side (Lessor and Lessee) consist
of more than one person, such persons shall be jointly and severally liable on the covenants of this
Lease.
Section 20.07 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.
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 20.09 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.
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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 20.13 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 Maj eure. 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 20.15 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 parry
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-parry claim or entitlement to or benefit of
any service or program contemplated hereunder, and the Lessor and the Lessee agree that neither
the Lessor nor the Lessee or any agent, officer, or employee of either shall have the authority to
inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity
or entities,have entitlements or benefits under this Lease separate and apart, inferior to, or superior
to the community in general or for the purposes contemplated in this Lease.
Section 20.16 Contingencies. This Lease Agreement is contingent upon Initial Lessee
obtaining construction financing; all necessary permits to build the Affordable Housing Unit
described herein; as well as Initial Lessee obtaining adequate access for the Unit Owner(s) to
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access the Affordable Housing Unit at all times. Therefore, in the event Initial Lessee is unable to
obtain financing, permits or adequate access 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, Initial
Lessee will not receive a reimbursement from Lessor for costs incurred by Initial Lessee prior to
such termination.
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 releases 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 releases 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 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 parry.
Section 20.20 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.
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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 20.23 Exceptions to Lease/Rental Prohibition. Notwithstanding anything to the
contrary in this Lease, the Initial Lessee shall have the authority to sublease/lease an Affordable
Unit to a qualified person(s). Such rental agreement shall not be for a term of more than one (1)
year and such qualified person(s) shall qualify under the affordability guidelines set forth in this
Lease, on an annual basis. This exception to the rental prohibition is specific only to the Initial
Lessee. Intentionally Deleted.
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
parry 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.
[Signatures to Follow]
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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 BOARD
OF COUNTY COMMISSIONERS
in the presence of two witnesses:
By:
Printed Name
Address of Witness
Printed Name
Address of Witness
(as Lessor)
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me, by means of [ ] physical presence, or [ ]
online notarization, this day of 202 by
, as Mayor of Monroe County Board of County
Commissioners who is personally known to me or has produced
as identification.
[Notary Seal] Notary Public
Printed Name:
My Commission Expires:
Page 33 of 39
LESSEE:
HABITAT FOR HUMANITY OF KEY
WEST AND LOWER FLORIDA KEYS,
INC., a Florida not for profit corporation
By:
Printed Name
Address of Witness
Printed Name
Address of Witness
(as to Lessee)
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me, by means of [ ] physical presence, or [ ]
online notarization, this day of 202 by
as of HABITAT
FOR HUMANITY OF KEY WEST AND LOWER FLORIDA KEYS, INC., a Florida not for
profit corporation who is personally known to me or has produced
as identification.
[Notary Seal] Notary Public
Printed Name:
My Commission Expires:
Page 34 of 39
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 4 & 5,Block 1,CUDJOE SHORES,according to the Plat thereof,recorded in Plat Book
5, Page 107 of the Public Records of Monroe County, Florida.
Parcel Identification Number: 00186920-000000 and 00186930-000000
Address: 22936 Overseas Highway, Cudjoe Key, Florida 33042
Page 35 of 39
EXHIBIT `B"
DEPICTION OF PROJECT LAYOUT
Page 36 of 39
This Instrument Prepared By:
Gregory S. Oropeza,Esq.
Oropeza, Stones,&Cardenas,PLLC
221 Simonton Street
Key West,Florida 33040
EXHIBIT "C"
COMMENCEMENT DATE AGREEMENT
This Agreement is made as of 202_ by and between
("Lessor")and ("Lessee").
WHEREAS, Lessor and Lessee have entered into a Lease dated , 202 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
202, 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: 202
Initial Term Expiration Date: , 2122
The execution of this Agreement shall not constitute an exercise by Lessee of its option
with respect to any Extended Term.
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 37 of 39
EXHIBIT "D"
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.
• 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 this
Affordable Housing Unit 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.
• 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.
Page 38 of 39
• 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 39 of 39
RESOLUTION NO. 130 - 2022
A RESOLUTION OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS NOMINATING PROPERTY
FOR PURCHASE BY HABITAT FOR HUMANITY OF KEY
WEST AND LOWER FLORIDA KEYS, INC. AND
REQUESTING THE MONROE COUNTY
COMPREHENSIVE PLAN LAND AUTHORITY ISSUE A
MORTGAGE LOAN TO FINANCE HABITAT'S PURCHASE
OF 22936 OVERSEAS HIGHWAY, OCEAN SIDE OF
CUDJOE KEY, NEAR MILE MARKER 22 LEGALLY
DESCRIBED AS LOTS 4 AND 5, BLOCK 1, CUDJOE
OCEAN SHORES (PB 5-107), WITH PARCEL ID
NUMBERS 00186920-000000 AND 00186930-000000 AS
AN AFFORDABLE HOUSING SITE SUBJECT TO
CONDITIONS.
WHEREAS, Habitat for Humanity of Key West and Lower Florida Keys (hereinafter
"Habitat) has entered into a contract to purchase a two-lot site at 22936 Overseas
Highway with Parcel ID Numbers 00186920-000000 and 00186930-000000, legally
described as Lots 4 and 5, Block 1, Cudjoe Ocean Shores (PB 5-107) (hereinafter the
"Site"), and
WHEREAS, the seller of the site has secured permit #20101242 for (4) attached
affordable housing units, with each providing 940 square feet of living space with a 172
square foot enclosure area; and
WHEREAS, the Monroe County Board of County Commissioners (hereinafter the
"County") desire to partner with Habitat to promote affordable housing development.
NOW, THEREFORE, BE IT RESOLVED BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS, THAT:
Section 1. The above recitals are true and correct and incorporated herein.
Section 2. The County hereby nominates the Sites for purchase by Habitat for
affordable housing.
Section 3. The County requests that the Monroe County Comprehensive Plan Land
Authority (hereinafter "Authority") issue a mortgage loan to finance Habitat's purchase of
the Site.
Section 4. The County requests Habitat construct 4 dwelling units on the site,
approximately as shown on "Exhibit A", in accordance with the permits issued by the
County.
Page 1 of 2
Section 5. Upon completion of the 4 units by Habitat, as evidenced by a Certificate of
Occupancy for all 4 units, the County will accept title of the land from Habitat, and
correspondingly lease the land back to Habitat for 99 years, offering Habitat a 2"d 99-
year term to maintain affordability. Habitat will sell the units to income qualified
households at 80% or below of Area Median Income (AMI).
Section 6. The County requests the Authority release the mortgage upon the
satisfactory completion of the 4 workforce housing units (as evidenced by issuance of
certificates of occupancy); Habitat conveying marketable title to the County.
PASSED AND ADOPTED by the Monroe County Board of County Commissioners at a
regular meeting on this 20th day of April , 2022.
Mayor David Rice Yes
Mayor Pro Tern Craig Cates Yes
Commissioner Michelle Coldiron Yes
Commissioner District III, Vacant Vacant
Commissioner Holly Merrill Raschein Yes
® ¢:® BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
1 83
BY: -410y�
s - r• Mayor DWid Rice
A EST: KEVIN MADOK, CLERK
By: km
As D puty Olerk
Digitally signed by Robert B.Shillinger
DN:cn=Robert B.Shillinger,o=Monroe County .�
Robert B. S h i l l i n g eir—cc ou=Monroe County Attorney, S
,r •email=shillinger-bob@monroecounty-tl.gov,c=US
r Date:2022.04.05 16:34:13-04'00'
Approved as to form and legal sufficiency
Robert B. Shillinger, Monroe County Attorney
Page 2 of 2
ATTACHMENT A
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Monroe County Board of County Commissioners
1100 Simonton Street
Key West, FL 33040
September 5, 2024
Habitat for Humanity' Dear Monroe County Board of County Commissioners,
of Key West and I am writing on behalf of Habitat for Humanity of Key West and Lower Florida
Lower Florida.Keys Keys, Inc. (Habitat)to respectfully request a modification to the Ground Lease
Boaand Land Use Restriction Agreement (LURA)with Monroe County for Habitat's
Joe oody,Choi Cudjoe Shores development located at 22936 Overseas Highway, specifically
Joe Moody,.Chair
Debbie Batty, Vice Chair regarding the income limit for potential homeowners.
Nicholas wahrer, Treasurer
Donna Moore,Secretary This subject property was originally purchased by Habitat with a loan from the
Al Altuve Monroe County Land Authority(MCLA). The property will be conveyed to
Devon Ayers Monroe County when Habitat obtains 4 certificates of occupancy (CO's)for the
Brenda Callahan 4 units we are constructing on site. Upon conveyance the MCLA has agreed to
Billy Davis
Jaylin Morawski forgive the loan.
Lynda woods
On July 17, 2024, the BOCC approved a 99-year Ground Lease between
office Monroe County and Habitat for this site after conveyance, and the Land
471 Overseas Highway Authority approved Resolution 04-2022 authorizing the mortgage loan and
Unit 102 LURA, which also restricted income of eligible households to 80%Area Median
Key west,FL 33040 Income (AMI).
Mailing Address The property also has a County Employee Housing Deed Restriction which
P.C.Q.Box 58/3 restricts qualifying families to 120%of AMI, as do the majority of our ground
Key west,FL 33045
leases
Tel: 305-294-9006
Fax: 815-550.88,63 An issue with the 80% (vs 120%AMI) income limit has come to light during the
habitatlowerkeys.org final approval process of one of our four homeowner families who are preparing
to close on their new home in approximately a month.
/ °°�„ The Habitat for Humanity Homebuyer Program is committed to serving families
Y who fall within the 80%AMI income bracket, and we income-qualify families at
°s HQ USING
INE
EQUAL
PTYIN the time of selection. However, during the partnership phase—which spans 6 to
12 months as families complete their sweat equity hours and educational
VVP IIot.,tiuVd requirements—family income may fluctuate. This is a natural part of the
program's structure, as participants work to improve their financial stability in
�elf IPn�-�� ar1��V�f�u:a�t'°, preparation for homeownership.
a17 dnth eI)1,wr,, At the beginning of this year, we accepted eight families into our Homebuyer
Program, all of whom qualified under the 80%AMI limit. Now, 9 months later,
we find that one family now falls just above this threshold, with an income of
83%AMI. This particular family is a three-generation household consisting of a
married couple, their 9-year-old daughter, and the wife's mother.
The wife's mother has worked at the Navy's Child and Youth Program for many
years and is approaching retirement. She originally brought her family to the
U.S. from Cuba several years ago, and they are now permanent residents. The
younger couple was able to begin working in the U.S. a year ago. When they
applied to our Homebuyer Program, they met the 80%AMI requirement. Since
then, the father has received a raise and taken on additional work shifts to save
for closing costs, which has caused their income to rise slightly above the limit.
This increase in income reflects the family's hard work and commitment to
securing their home, and we believe this should be celebrated, not penalized.
They have already completed 396 hours of sweat equity labor on their home
and within the community, well above the required 300 hours, and have shown
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• immense dedication to the program. It is important to note that the construction
of their home has been delayed due to unforeseen circumstances, such as the
costly connection of a sewer system, which has extended the timeline for
closing.
Habitat Therefore, we respectfully request that the income limit for this Ground Lease
for Humanity" be adjusted to 120% of AMI. By doing so, we can continue supporting
of Keay West and hardworking families like this one,who are striving to achieve stable, affordable
(Lower Florida Keys housing despite the unique challenges of our region.
Board of Directors Thank you for your attention to this matter and for your continued support of our
Joe Moody,Char mission to provide strength, stability, and self-reliance through affordable
Debbie Batty, vice Chair homeownership. We look forward to working with you to ensure that deserving
Nicholas Wahrer, Treasurer
Donna Madre,Secretary local families can achieve their dream of homeownership.
Al AltUve
Devon Ayers Sincerely,
Brenda Callahan Kristina Welburn
Billy Davis Executive Director
Jayiin Morawski Habitat for Humanity of Key West and Lower Florida Keys
Lynda Woods
Office
471 Overseas Highway
Unit 102
Key West,FL 33040
Maill'ing Address
F.O.Box 5873
Key West,FL 33045
Tel: 305-294-9006
Fax: 815-550-8863
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