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Agenda 11/09/2021 Item #16D10 (Amended & Restated Lease Agreement w/MHP Bembridge, LLC)11/09/2021 EXECUTIVE SUMMARY Recommendation to approve an Amended and Restated Lease Agreement with MHP Bembridge, LLC and the associated Ground Lease Non-Disturbance, Attornment and Estoppel Agreement with the Florida Housing Finance Corporation, on County-owned property located within the Bembridge PUD and authorize the necessary Budget Amendment. (Fiscal Impact $10) OBJECTIVE: To provide affordable housing to the residents of Collier County. CONSIDERATIONS: The County executed a Long-Term Ground Lease (Ground Lease) with McDowell Housing Partners, LLC (McDowell) for the Bembridge parcel on August 13, 2019, which was ratified by the Board of County Commissioners (Board) on September 10, 2019. On September 16, 2019, in accordance with Section 15 of the Ground Lease, McDowell executed an Assignment of Lease with MHP Bembridge, LLC, a single purpose entity, created as a requirement for Florida Housing Finance Corporation (FHFC) Funding. On October 22, 2019, the Board approved a developer agreement with McDowell Housing Partners, LLC for Invitation to Negotiate No. 19-7556 “Bembridge PUD Affordable Housing Land Development”. MHP Bembridge, LLC has since secured Community Development Block Grant - Disaster Recovery (CDBG-DR) funds from FHFC which will leverage tax-exempt bonds and four percent (4%) Low- Income Housing Tax Credit (LIHTC) equity to provide the primary financing for the project. MHP Bembridge, LLC anticipates a mid-December 2021 closing on the FHFC financing and has requested an amendment to the Ground Lease to address changes including, but not limited to, modifying the legal description to remove approximately 1.33 acres reserved for Collier County Master Pump Station #313. The lender is requiring the changes. Other notable changes include identification of liens and encumbrances as required by the financing to properly secure collateral against the project, addition of default notice and right to cure for each Leasehold Mortgagee and Investor for the same, and agreement that the County will not exercise its surface rights to explore for or extract any petroleum, phosphates, minerals or metals on or about the premises during the term of the Ground Lease. Also proposed is a Ground Lease Non-Disturbance, Attornment and Estoppel Agreement that allows FHFC to act to cure a default of the Ground Lease in the event MHP Bembridge, LLC fails to perform. The Agreement ensures that FHFC can adequately protect its collateral and benefits the County. FISCAL IMPACT: A Budget Amendment is necessary to recognize the annual lease payment of $10 that MHP Bembridge, LLC. shall pay to the County per year, to be deposited into the Affordable Housing Trust Fund (116), Project 50137. GROWTH MANAGEMENT IMPACT: Approval of this item will allow for MHP Bembridge, LLC. to move forward with the development of affordable rental units on the site and assist Collier County in meeting the goal of the Housing Element of the Comprehensive Growth Management Plan. LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a simple majority vote for Board action. -JAB 16.D.10 Packet Pg. 1099 11/09/2021 RECOMMENDATION: To approve an Amended and Restated Lease Agreement with MHP Bembridge, LLC and the associated Ground Lease Non-Disturbance, Attornment and Estoppel Agreement with the Florida Housing Finance Corporation, on County-owned property located within the Bembridge PUD and authorize the necessary Budget Amendment. (Fiscal Impact $10) Prepared By: Jacob LaRow, Housing, Grant Development, and Operations Manager, Community and Human Services Division ATTACHMENT(S) 1. Assignment of Lease - Collier County Ground Lease - Bembridge - 4820-1417-0530 v 2 (PDF) 2. Ground Lease Non-Distrubance Attornment and Estoppel Agreement (PDF) 3. Bembridge Amended and Restated Ground Lease (PDF) 4. Lease Comparison - Original to Amended (DOCX) 16.D.10 Packet Pg. 1100 11/09/2021 COLLIER COUNTY Board of County Commissioners Item Number: 16.D.10 Doc ID: 17865 Item Summary: Recommendation to approve an Amended and Restated Lease Agreement with MHP Bembridge, LLC and the associated Ground Lease Non-Disturbance, Attornment and Estoppel Agreement with the Florida Housing Finance Corporation, on County-owned property located within the Bembridge PUD and authorize the necessary Budget Amendment. Meeting Date: 11/09/2021 Prepared by: Title: – Community & Human Services Name: Jacob LaRow 09/22/2021 9:09 AM Submitted by: Title: Manager - Federal/State Grants Operation – Community & Human Services Name: Kristi Sonntag 09/22/2021 9:09 AM Approved By: Review: Operations & Veteran Services Todd Henry Additional Reviewer Skipped 09/22/2021 2:14 PM Community & Human Services Blanca Aquino Luque Additional Reviewer Completed 09/28/2021 2:55 PM Operations & Veteran Services Jeff Newman Additional Reviewer Completed 09/29/2021 9:31 AM Community & Human Services Kristi Sonntag CHS Review Completed 09/29/2021 9:53 AM Community & Human Services Maggie Lopez Additional Reviewer Completed 09/29/2021 9:58 AM Community & Human Services Jacob LaRow Additional Reviewer Completed 09/30/2021 10:48 AM Public Services Department Todd Henry Public Services Department Completed 09/30/2021 12:05 PM Operations & Veteran Services Todd Henry Additional Reviewer Skipped 09/22/2021 2:13 PM Public Services Department Dan Rodriguez PSD Department Head Completed 10/07/2021 12:35 PM County Attorney's Office Jennifer Belpedio Level 2 Attorney of Record Review Completed 11/02/2021 8:30 AM Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 11/02/2021 8:38 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 11/02/2021 9:34 AM Growth Management Operations Support Christopher Johnson Additional Reviewer Completed 11/02/2021 10:57 AM County Manager's Office Amy Patterson Level 4 County Manager Review Completed 11/03/2021 3:44 PM Board of County Commissioners Geoffrey Willig Meeting Pending 11/09/2021 9:00 AM 16.D.10 Packet Pg. 1101 1 Assignment of Lease (Collier County) – Bembridge 4820-1417-0530 059397/00002 JC28 09/16/2019 ASSIGNMENT OF LEASE The parties to this Agreement are: McDOWELL HOUSING PARTNERS, LLC, a Delaware limited liability company (hereinafter the "Assignor") and MHP BEMBRIDGE, LLC, a Florida limited liability company, (hereinafter the "Assignee"). RECITALS: A.Assignor entered into a Ground Lease Agreement with Collier County, a politicalsubdivision of the State of Florida (the “Lessor”), effective __________, 2019, for the lease of certain premises (hereinafter the "Premises") in Collier County, Florida, as subsequently amended (hereinafter the "Lease"). B.Assignor desires by this Agreement to assign all of its rights, title, and interest inand to the Lease to Assignee subject to the terms of the Lease and this Agreement. TERMS: In consideration of the mutual agreements herein contained, the parties hereby agree as follows: 1.Assignor assigns to Assignee all of its rights, title and interest in the Lease as of____________, 2019 (hereinafter the "Effective Date") and it is expressly understood and agreed between the parties that said Assignment is conditioned upon the terms hereof. 2.Assignee hereby assumes and agrees to be bound by and perform all covenants,conditions, obligations, and duties of Assignor under the Lease from and after the Effective Date, and Assignor shall be relieved of any such performance thereunder as a result of this Agreement. 3.Assignor represents and covenants that the Lease is in full force and effect, thatAssignor's interest therein is free and clear of all encumbrances, and that Assignor has fully performed all covenants and obligations under the Lease and has not done or permitted any acts in violation of the covenants contained in the Lease. 4.Assignee agrees and covenants that Assignor shall have access to the Premises andshall have the right to perform any work required of Assignor, including as developer, under the Developer Agreement. Further, Assignee covenants and agrees that it recognizes the rights of Lessor under the Developer Agreement and the Lease to enforce all remedies available to Lessor under the Developer Agreement and the Lease (including offsets against Rent, as such term is defined in the Lease) for a Developer default under the Developer Agreement. 5.Assignee agrees that it has inspected the Premises and hereby agrees to take thePremises in the condition existing upon the Effective Date. 7.Nothing in this Agreement shall be deemed to waive or modify any of theprovisions of the Lease. 8.The provisions of this Agreement shall bind and inure to the benefit of the,successors and assigns of the parties hereto. 9.This Agreement may be executed in several counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the same Agreement. August 13 September 16, 16.D.10.a Packet Pg. 1102 Attachment: Assignment of Lease - Collier County Ground Lease - Bembridge - 4820-1417-0530 v 2 (17865 : Amended and Restated Lease - 2 Assignment of Lease (Collier County) – Bembridge 4820-1417-0530 059397/00002 JC28 09/16/2019 10.Facsimile of electronic signatures shall be deemed originals for all purposes andshall be binding on each party. 11.Assignee shall indemnity and hold Assignor harmless for any matters occurringafter the Effective Date against all claims, inquiry, damages, less and liability, cost and expenses (including attorney’s fees, costs and expenses) of any and every kind to any person or property by reason of (i) construction, (ii) operation and maintenance of the Premises, or (iii) any other matter arising in connection with the Lease, Assignor or the development of the Premises. Assignor shall not be entitled to be indemnified against matters which are solely attributable to the Assignor’s actions. [Signatures contained on page 3] 16.D.10.a Packet Pg. 1103 Attachment: Assignment of Lease - Collier County Ground Lease - Bembridge - 4820-1417-0530 v 2 (17865 : Amended and Restated Lease - 3 Assignment of Lease (Collier County) – Bembridge 4820-1417-0530 059397/00002 JC28 09/16/2019 This Agreement has been entered into by the parties this ___ day of _______, 2019. 16th September 16.D.10.a Packet Pg. 1104 Attachment: Assignment of Lease - Collier County Ground Lease - Bembridge - 4820-1417-0530 v 2 (17865 : Amended and Restated Lease - 16.D.10.cPacket Pg. 1105Attachment: Ground Lease Non-Distrubance Attornment and Estoppel Agreement (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.cPacket Pg. 1106Attachment: Ground Lease Non-Distrubance Attornment and Estoppel Agreement (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.cPacket Pg. 1107Attachment: Ground Lease Non-Distrubance Attornment and Estoppel Agreement (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.cPacket Pg. 1108Attachment: Ground Lease Non-Distrubance Attornment and Estoppel Agreement (17865 : Amended and Restated Lease - 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Bembridge PUD) 16.D.10.cPacket Pg. 1116Attachment: Ground Lease Non-Distrubance Attornment and Estoppel Agreement (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1117Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1118Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1119Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1120Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1121Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1122Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1123Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1124Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1125Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1126Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1127Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1128Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1129Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1130Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1131Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1132Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1133Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1134Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1135Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1136Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1137Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 16.D.10.dPacket Pg. 1138Attachment: Bembridge Amended and Restated Ground Lease (17865 : Amended and Restated Lease - Bembridge PUD) 1 Page 1 of 26 AMENDED AND RESTATED COLLIER COUNTY STANDARD FORM LONG-TERM GROUND LEASE This Amended and Restated Collier County Standard Form Long-Term Ground Lease (the “Ground Lease”) is entered into this _________ day of _______________________, 20____,2021, by and between McDowell Housing Partners, LLC, a Delaware limited liability company (“Lessee”) registered to conduct business in Collier County, Florida and Collier County, a political subdivision of the State of Florida (“, (the “Lessor”) (collectively,” or “Landlord”), and MHP Bembridge, LLC, a Florida limited liability company, as successor to McDowell (as defined hereunder) pursuant to that certain Assignment (as defined hereunder), as reflected in Recital B below (the “Lessee”). The Lessor and Lessee aremay hereinafter be referred to each individually as a “Party” and collectively as the “Parties”).”. RECITALS: WHEREAS, the Lessor is the owner of certain real property identified as Parcel Number 00400246406 by the Collier County Property Appraiser located in the Collier County, Florida 34104 (“Premises”); WHEREAS, on February 6, 2019, Collier County issued an Invitation to Negotiate (ITN) #19-7556 “Bembridge PUD Affordableand McDowell Housing Land Development.” A. WHEREAS, LesseePartners, LLC, a duly organizedDelaware limited liability corporation, has been awarded Invitation to Negotiate and has requested that the Board of County Commissioners entercompany (“McDowell”) entered into a 99- year lease of the Premises; andthat certain Collier County Standard Form Long-Term Ground Lease, effective August 13, 2019 (the “Initial Ground Lease”). WHEREAS, it is the Board’s finding that it is in the public interest to lease this property to Lessee on the terms and conditions set forth below. B. McDowell assigned all of its rights, title, and interest in the Initial Ground Lease to the Lessee pursuant to that certain Assignment of Lease effective September 16, 2019 (the “Assignment”). C. The Parties desire to amend and restate the Initial Ground Lease as hereinafter provided. W I T N E S S E T H: NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the Parties, and in consideration of the covenants contained herein, the Parties hereby enter into the Ground Lease on the following terms and conditions: 16.D.10.e Packet Pg. 1139 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 2 Page 2 of 26 1. Conveyance. On the terms and conditions set forth in the Ground Lease, and in consideration of Lessee’s performance under the Ground Lease, the Lessor conveys to the Lessee the present possessory interest in the Leased Land described below. 2. Description of Leased Land. The Premisespremises which leased to Lessee pursuant to the Ground Lease is located within the Bembridge Emergency Services Complex CFPUD and RPUD No. 05-46, as amended, Collier County, Florida, with a legal description set forth in Exhibit A, hereinafter referred to as “Leased Land” or “Premises.” 3. Conditions to Conveyance. Lessee warrants and represents to Lessor that it has examined the title and boundaries of the Leased Land. Accordingly, this conveyance is subject to all of the following: a. Any and all conditions, restrictions, encumbrances and limitations now recorded against the Leased Land; b. Any and all existing zoning laws or ordinances; and c. Lessee’s satisfactory performance of all terms and conditions of the Ground Lease. 4. Use of Leased Land. The purpose of the Ground Lease is for Lessee to provide affordable housing which use the Board of County Commissioners has found to be in the public’s interest. Accordingly, Lessee shall utilizekeep the Leased Land in strict accordance withPremises affordable by leasing the Lessee’s Responseaffordable housing units to Invitation to Negotiation 19-7556, as summarized in Exhibit B. individuals at 80% AMI or less. In the event Lessee shall cease to use the Premises after completion of the Project for the purposes described in 2 and 3 of Exhibit B, and such cessation of use shall continue for a period of one (1) year, the Ground Lease, at the option of the Lessor, upon thirty (30) days written notice to the Lessee, shall be terminated and Lessee shall surrender and vacate the Premises to the Lessor within thirty (30) days after notice of such termination. Provided, however, said sixty (60) dayone (1) year period shall be tolled if such cessation is caused by events beyond the control of the Lessee such as acts of God or if such cessation is due to closing for reconstruction or repairs to the Building, as defined in Exhibit B. 5. Improvements and Modifications. 5.01. Lessee’s Obligation to Build, and Modifications to, the Building. Lessee shall design, permit and construct in compliance with all applicable governmental regulations, at its sole cost and expense, a Buildingbuilding and supplemental improvements to be solely utilized for the uses described in 2 and 3 of Exhibit B. , as more fully described by Exhibit B (the “Building” or the “Improvements”). The plans, specifications and building design for the Lessee’sLessee's improvements to be constructed on the Leased Land are subject to reasonable approval by Lessor. Prior to applying for any building permit for improvements to the Leased Land, Lessee shall submit to Lessor for its approval such plans and specifications necessary to obtain a building permit for Lessee's intended improvements. Lessor shall have thirty (30) days after receipt of any submittal by 16.D.10.e Packet Pg. 1140 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 3 Page 3 of 26 Lessee to review Lessee's submittals and provide a written response as to whether the submittal is approved as submitted, not approved as submitted, or Lessor may provide Lessee with requested changes. If the submittal is not approved or if Lessor requests changes, Lessee shall submit revised plans that will meet with Lessor's approval or incorporate the requested changes into the plans. If Lessee determines not to revise its plans then Lessee may terminate the Ground Lease. Lessee may make nonmaterial changes to the approved plans from time to time to accommodate site issues or operating changes to Lessee's use of the Leased Land. Material changes from the approved plans will require Lessor's written approval, which approval shall not be unreasonably withheld. Lessor will provide Lessee with requisite authorization to apply for permits once plans are determined to be acceptable by Lessor. All plans shall be in conformity with Collier County standards, Construction of the Building must commence no later than twenty-four months (24) from the date the Lessee secures a Funding Allocation, as defined hereafter, (the "Construction Commencement Deadline"). “Funding Allocation” is herein defined as receipt of an invitation to credit underwriting from Florida Housing Finance Corporation ("FHFC") for gap financing or low-income housing tax credits issued under a competitive request for application. In the event Lessee does not commence construction of the Building by the Construction Commencement Deadline, Lessor shall extend the Construction Commencement Deadline if Lessee provides documentation from Project lender (“Leasehold Mortgagee”) (as defined hereunder) and/or investor (“member(s) of the Lessee (each an "Investor" and collectively, if applicable, the “Investors”) that construction commencement of the Building is expected within six (6) months following the initial Construction Commencement Deadline. If documentation is not provided by Lessee, Lessor shall have the right to terminate the Ground Lease and neither party shall have any further obligations to the other party. Upon commencement of construction, Lessee shall diligently pursue said construction to completion and complete said construction on or before thirty (30) months from commencement, subject to delays beyond the control of the Lessee. Lessee shall be solely responsible for the costs of repairing any damage (other than ordinary wear and tear) to Lessor's roads, water and sewer facilities or other infrastructure located within the Leased Land resulting from construction or use by Lessee, its agents, officers or employees. Lessee must demonstrate to Lessor acknowledges that itLessee has sufficient funds necessary to complete secured a Funding Allocation with respect to the Building, and and the Project and agrees that all financing contingencies set forth herein have been satisfied and shall be of no further force or effect. Lessee shall, prior to construction commencement, post a payment and performance bond, or like security as required by Lessor to assure completion of the Project. Any entitlements, permits, and easements that are necessary to construct and use the Building as set forth in Exhibit "B" shall be pursued by Lessor. Lessor will join in or otherwise authorize Lessee to pursue such applications. Lessor shall pursue such applications with reasonable diligence and in a timely and commercially reasonable manner consistent with the prevailing standard of practice applicable to handling and processing land use matters in Collier County, Florida, In return, Lessor agrees to use is best efforts to cause the Collier County Growth Management Division and/or Board of County Commissioners to: (1) designate the application(s) submitted by Lessee as "Fast Track Process" and (ii) cause the applications for amendments to the GMP and LCD to be processed concurrently with Lessee's application to rezone the property. 16.D.10.e Packet Pg. 1141 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 4 Page 4 of 26 5.02. Title to Building, Project, and any Improvements; Tax Attributes and Benefits. At all times during the Term (as defined hereunder), (i) the Building, the Project, and any other improvements placed upon the Land by Lessee shall be owned by Lessee, (ii) Lessee alone shall be entitled to all of the tax attributes of ownership, including, without limitation, the right to claim depreciation or cost recovery deductions and the right to claim the low-income housing tax credit described in Section 42 of the Internal Revenue Code of 1986, as amended, and (iii) Lessee shall have the right to amortize capital costs and to claim any other federal or state tax benefits attributable to the Project. 6. Term of Ground Lease. The term of the Ground Lease shall commence upon its execution (the “Effective Date”) and, unless terminated earlier by the Parties, shall terminate on the ninety-ninth (99th) year anniversary from the Effective Date (“Term”). There is no option to renew. If Lessee holds over after the expiration of the lease term, such tenancy shall be from month to month under all of the terms, covenants and conditions of the Ground Lease subject, however, to Lessor’s right to seek legal relief to eject Lessee from the Premises as a holdover. 7. Rent. The Lessee agrees to pay the Lessor the sum of $10.00 per annum, in advance, for each year of the Term. 8. Net Lease. This is a fully net lease, with Lessee responsible for all its costs, fees and charges concerning the Premises. Accordingly, Lessee shall promptly pay when due and prior to any delinquency all such costs, fees, taxes, permit, trash removal services, assessments, utility charges, impact fees and obligations of any kind that relate to the Premises. Lessee will indemnify and hold Lessor harmless from any and all actual claims, costs and obligations arising from Lessee’s use of the Premises other than attributable to Lessor. In case any action or proceeding is brought against Lessor by reason of Lessee’s use of the Premises, Lessee shall pay all costs, reasonable attorneys' fees, expenses and liabilities resulting therefrom and shall defend such action or proceeding if Lessor shall so request other than attributable to Lessor, at Lessee’s expense, by counsel reasonably satisfactory to Lessor. It is specifically agreed however, that Lessor may at its own cost and expense participate in the legal defense of such claim, with legal counsel of its choosing. 9. Liens and Mortgages. 9.01 Lessor shall not in any way encumber or lien the Premises and shall promptly remove any and all encumbrance or liens it placed against the Premises of its doing. All persons are put upon notice that the interest of the Lessee in the Premises shall not be subject to liens or encumbrance made by the Lessor, except for those in favor of a Leasehold Mortgagee. 9.02 Lessor acknowledges and agrees that it will not be possible for the Lessee to construct the Project without obtaining a loan or loans from one or more Leasehold Mortgagee. (as defined hereunder). Therefore, Lessor hereby covenants and agrees that its interest in the Ground Lease, and to the extent not prohibited under the law its fee simple interest in the Premises ("Fee Estate"), is and shall be subject to, subordinate and inferior to any loan obtained by the Lessee for the purpose of financing the development and/or 16.D.10.e Packet Pg. 1142 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 5 Page 5 of 26 operation of the Project, and to the lien of each Leasehold Mortgagee (“Leasehold Mortgage”),, assignments of rents and leases, security agreements, and other collateral, security documents or instruments required by any Leasehold Mortgagee, and to all renewals, extensions, modifications, consolidations, replacements and refinancings, and to all advances made or hereafter to be made upon the security of the Leasehold Mortgage,Mortgages (as defined hereunder), assignments of rents and leases, security agreements, and other collateral, security documents or instruments. Lessor shall, at Lessee's request, join, execute and/or deliver any and all Leasehold Mortgages, assignments of rents and leases, security agreements, and other collateral, security documents or instruments as may be required by such lender or lenders in order to subject and subordinate the Lessor's interest in the Ground Lease (and if prohibited under the law its Fee Estate) in the Premises to the lien of such documents or instruments, and upon Lessee's request shall join, execute and/or deliver any and all such further ins truments or assurances as any such lender or lenders may reasonably deem necessary to evidence or confirm the subordination of the Ground Lease or, to the extent not prohibited under the law, allowed the encumbrance of the Lessor's interest herein and the Lessor's ownership interest in the Fee Estate and the Premises to the lien of any such Leasehold Mortgage, assignments of rents and leases, security agreements, and other collateral, security documents or instruments. Except as otherwise expressly provided in this Ground Lease, at no time shall Lessee’s leasehold estate, or Lessee’s interest in this Ground Lease, be subordinated in any manner to the interest of any mortgagee with a security interest in the Fee Estate. Provided, however, and notwithstanding anything contained herein to the contrary, Lessor shall not be required to suffer, incur, accept or assume any personal liability for any such financing, loans or indebtedness, or any costs or expenses thereof, or any other indebtedness or liability of Lessee thereunder, and any Leasehold Mortgage, assignments of rents and leases, security agreements, and other collateral, security documents or instruments of any nature whatsoever which the Lessor may be called upon to join, execute and/or deliver under and pursuant to this section shall expressly exculpate Lessor from and against any and all such personal liability. Lessee may, without Lessor's consent, assign or mortgage the Ground Lease (including any options it contains) to any Leasehold Mortgagee under a Leasehold Mortgage. A Leasehold Mortgagee (and anyone whose title derives from a Leasehold Mortgagee) may, without Lessor's consent, hold a foreclosure sale or exercise the power of sale, take title to the Ground Lease, and transfer or assign the Ground Lease, either in its own name or through a nominee. 9.03 LienLiens and Encumbrance. Encumbrances. Lessee may encumber or lien the Ground Lease, and to the extent not prohibited under the law the Fee Estate, with any encumbrance, inchoate lien for taxes or municipal obligations, utility and access easements, affordability covenants, restrictions required by (including that certain (i) Land Use Restriction Agreement to be executed by Lessee, FHFC and U.S. Bank National Association (the “Trustee”) in connection with the issuance by FHFC of those certain multifamily mortgage revenue bonds in the approximate principal amount of $11,500,000 (the “Bonds”), and (ii) Land Use Restriction Agreement to be executed by Lessee and FHFC in connection with the issuance by FHFC of that certain Community Development Block Grant-Disaster Recovery Program loan to Lessee in the approximate principal amount of $7,800,000 (the “CDBG Loan”)), restrictions required by Section 142 and 16.D.10.e Packet Pg. 1143 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 6 Page 6 of 26 Section 42 of the Internal Revenue Code, other encumbrances incurred in the ordinary course of business of the Lessee and other matters set forth in policy for title insurance insuring the Lessee's interest in the Ground Lease (“(each a "Permitted Encumbrance”). " and collectively the “Permitted Encumbrances”). Lessor shall, to the extendextent not prohibitprohibited by law, at Lessee's request, permit the Fee Estate to be encumbered by affordability covenants, including, but not limited to, restrictions required by Section 142 and Section 42 of the Internal Revenue Code, and upon Lessee's request shall join, execute and/or deliver any and all such further instruments or assurances reasonably deem necessary to evidence or confirm the encumbrance on the Fee Estate. Subject to receipt of prior written approval from Lessor, Lessee shall have the right at any time and from time to time, to grant one or more mortgages of its interest in the Ground Lease to lenders (each, a “Leasehold Mortgagee” and, collectively, the “Leasehold Mortgagees”) and, in connection therewith, and also with prior written approval from Lessor, may collaterally assign this Ground Lease and all of Lessee’s rights hereunder to such Leasehold Mortgagee (any such mortgage so granted by Lessee with the consent of Lessor hereinafter referred to individually as a "Leasehold Mortgage" and collectively as the “Leasehold Mortgages”), any and all of which shall be considered a Permitted Encumbrance. Landlord hereby consents to and acknowledges that the following is a permitted Leasehold Mortgage: a [Mortgage, Assignment of Leases and Rents, Assignment of Contracts, Security Agreement, and Fixture Filing] (the “Bond Loan Mortgage”) in favor of Florida Housing Finance Corporation to secure a loan in the amount not to exceed $11,500,000.00 (the “Bond Loan”). In addition, Lessor consents to the assignment of the Bond Loan Mortgage to [___________________], as trustee for the benefit of KeyBank National Association, a national banking association, as the initial bond purchaser and the amendment and restatement of the Bond Loan Mortgage in connection with the conversion of the Bond Loan to a permanent loan. For purposes of this Ground Lease, (i) FHFC and the Trustee shall each be a “Leasehold Mortgagee” in connection with the Bond Loan (which shall also be a “Leasehold Mortgage”) to secure the loan made to Lessee with the proceeds of the Bonds, and (ii) FHFC shall be a “Leasehold Mortgagee” in connection with the mortgage given by Lessee (which shall also be a “Leasehold Mortgage”) to secure the CDBG Loan. 9.04 Rights of Leasehold Mortgagee. Upon a. Lessor agrees to execute any additional documents or further assurances as may be reasonably requested by any Leasehold Mortgagee in connection with any Leasehold Mortgage permitted by this section, but shall never be required to execute any mortgage or note to Leasehold Mortgagee or to subordinate Lessor’s fee interest in the Premises or any portion thereof to the lien of any Leasehold Mortgagee. b. The Ground Lease may not be amended, modified, canceled or terminated without the consent of the Investor and Leasehold Mortgagees, and any such amendment, modification, cancellation or termination of the Ground Lease without the prior written consent of Investor and Leasehold Mortgagees (or their respective successors and 16.D.10.e Packet Pg. 1144 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 7 Page 7 of 26 assigns) will not be binding on the Investor or Leasehold Mortgagees and their respective successors and assigns. c. Any transfer of the Lessee’s interest in the Building or P roject to the Investor or any Leasehold Mortgagee by foreclosure or assignmentdeed in lieu of foreclosure shall be permitted without the consent of the Lessor, and transfers of any membership interest in the Lessee to the Investor or an affiliate of the Investor shall be permitted without the consent of the Lessor. a.d. Following the Investor or any Leasehold Estate, pursuant to the terms of the applicable Leasehold Mortgage, the most seniorMortgagee’s acquisition of title to the leasehold estate by foreclosure or deed in lieu of foreclosure: (i) The Investor or Leasehold Mortgagee and its successors and assigns shall have the right to acquire the Ground Lease in its own name or the name of a nominee without consent or approval of Lessor. In the event that Lessee’s interest hereunder is acquired by a Leasehold Mortgagee, or its nominee or designee, then such Leasehold Mortgagee, or its nominee or designee, shall also have the right to further assign or sublet the Leasehold Estate hereundertransfer the Ground Lease to a third party without the consent or approval of Lessorof the Lessor; and (ii) all rights of Lessee under the Ground Lease (insofar as they relate to the Ground Lease) may be exercised by or on behalf of the Investor or Leasehold Mortgagees and their respective successors and assigns. 9.05 Non-Merger. The Ground Lease shall not terminate as to theany Leasehold Mortgage because of any conveyance of leasehold interest in the Ground Lease to Lessor or of the Lessor’s interest hereunder to the Lessee. Accordingly, if this Lease and the Fee Estate in the Premises are commonly held, then they shall remain separate and distinct estates. They shall not merge without the express written consent byof all Leasehold Mortgagees. 9.06 Leasehold Mortgagee and Investor Default Notice and Right to Cure. a. Notice. Lessor shall give the Investor and each Leasehold Mortgagee a contemporaneous duplicate copy of all notices of a Default by Lessee or other notices that Lessor may give to or serve in writing upon Lessor pursuant to the terms of the Lease. The addresses of the Investor and Leasehold Mortgagees may be changed upon written notice delivered to Landlord in the manner specified in Section 21 hereof. No such notice of a Default by Lessee from the Lessor to the Investor and/or Leasehold Mortgagee or any termination of any Leasehold Mortgage in connection with such notice of a Default by Lessee shall be effective unless a copy of such notice has been delivered to the Investor and each Leasehold Mortgagee. 16.D.10.e Packet Pg. 1145 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 8 Page 8 of 26 b. Right to Cure. Upon receiving notice pursuant to the terms of the Ground Lease, the Investor or any Leasehold Mortgagee, at its option at any time prior to or within ninety (90) days following expiration of any cure period or longer time period set forth in the notice, may pay any amount, or do any act or thing required of Lessee by the terms of this Ground Lease. Lessor shall accept all payments made and all acts performed by the Investor or Leasehold Mortgagee prior to or within such ninety (90) day period (or such longer period set forth in the notice) to the same extent as if they had been paid or performed by Lessee. Provided, however, that if any Leasehold Mortgagee or the Investor elects to cure Lessee’s default, notice of such intent to cure must be given to Lessor before the expiration of such ninety (90) day period (or such longer period set forth in the notice) after receipt of such notice. i. If such breach or default cannot reasonably be cured within the ninety (90) day period and the Investor or Leasehold Mortgagee shall have commenced to cure such default within the specified time prior, and thereafter diligently and expeditiously proceeds to cure the same, the ninety (90) day period shall be extended for so long as it shall require the Investor or Leasehold Mortgagee in the exercise of due diligence to cure such default. ii. If before the expiration of ninety (90) days from the date of service of notice of termination upon Investor or Leasehold Mortgagee, Investor or Leasehold Mortgagee shall have notified Lessor of its desire to nullify such notice and shall have paid to Lessor all rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the requirements of this Ground Lease, if any are then in default, and shall prosecute the same to completion with reasonable diligence, then in such event Lessor shall not be entitled to terminate this Ground Lease and any notice of termination therefore given shall be void and of no effect. 9.07 Leasehold Mortgagee Termination Notice and Right to Cure a. Notice. Lessor may terminate this Ground Lease (subject to the rights of Investor and Leasehold Mortgagees) only if, following notice to Lessee and the expiration of the period of time given Lessee and each Leasehold Mortgagee to cure such default, Lessor notifies the Investor and each Leasehold Mortgagee of Lessor’s intent to so terminate at least ninety (90) days calendar days in advance of the proposed effective date of such termination and the Investor or Leasehold Mortgagee fails to cure or begin a cure within such ninety (90) day period. 16.D.10.e Packet Pg. 1146 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 9 Page 9 of 26 b. Actions Staying Termination. i. If during the ninety (90) calendar day notice period, Leasehold Mortgagee takes the Termination Preventative Actions (as defined hereunder), then Lessor shall give Leasehold Mortgagee an additional ninety (90) calendar days to either: (i) cure the Default by Lessee or (ii) take steps to acquire or sell Lessee’s interest in this Ground Lease by initiating foreclosure of its Leasehold Mortgage or other appropriate means. ii. If during the ninety (90) calendar day notice period, the Investor takes the Termination Preventative Actions, then Lessor shall give the Investor an additional forty-five (45) calendar days to initiate removal or replacement of the managing member under Lessee’s operating documents and cause the new managing member to cure any Default by Lessee. iii. For the purposes of this section, the term Termination Preventative Actions means the following actions, if taken by the Investor or Leasehold Mortgagee: 1. Notifying Lessor of such Leasehold Mortgagee's desire to take the Termination Preventative Actions; 2. Paying of any additional rent and other payments then due and in arrears as specified in the notice of Default by Lessee and payments which become due during such ninety (90) day period; and 3. If such foreclosure is initiated in such time, Leasehold Mortgagee shall have such additional time as is necessary to complete the foreclosure process, commencing to comply, to the extent reasonably possible, with any non-monetary requirements of this Ground Lease then in default. c. Extension of Cure Period i. If Leasehold Mortgagee elects to take action pursuant to Section 9.06, Lessor shall refrain from terminating this Ground Lease for a period of not more than six (6) months or such longer period necessary for any Leasehold Mortgagee to exercise its remedies under the applicable loan agreement executed in connection with the loan securing the Leasehold Mortgage; provided, however, Lessor shall refrain from terminating this Ground Lease for so long as such Leasehold Mortgagee 16.D.10.e Packet Pg. 1147 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 10 Page 10 of 26 proceeds to complete steps to acquire or sell Lessee’s interest in this Ground Lease related to the subject portion(s) of the Premises, by foreclosure of its Leasehold Mortgage or by other appropriate means with reasonable efforts. If at the end of said six (6) month period, Leasehold Mortgagee shall be actively engaged in steps to acquire or sell Lessee’s interest herein, the time of said Leasehold Mortgagee to comply with the provisions of this section shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity. ii. If Investor elects to take action pursuant to Section 9.06, Lessor shall refrain from terminating this Ground Lease for ninety (90) additional days; provided, however, Lessor may elect, in its sole discretion, to refrain from terminating this Ground Lease for so long as Investor proceeds to complete steps to replace the managing member of Lessee. iii. Nothing in this section, however, shall be construed to extend this Ground Lease beyond the Term. 9.08 New Lease. In the event that this Ground Lease is terminated for any reason or in the event this Ground Lease is rejected in any bankruptcy proceeding involving Lessee, Landlord shall, if requested by Leasehold Mortgagee, if applicable, within sixty (60) days after the effective date of such termination, grant to the Leasehold Mortgagee a new lease on the following terms and conditions: a. In the event of the termination of this Lease prior to its stated expiration date, Landlord agrees that it will enter into a new lease of the Premises with any Leasehold Mortgagee that is an institutional lender or a wholly owned subsidiary thereof, or, at the request of such Leasehold Mortgagee, a designee for the remainder of the Term of this Ground Lease effective as of the date of such termination, upon the same covenants, agreements, terms, provisions, and limitations herein contained, provided (i) such Leasehold Mortgagee makes written request upon Landlord for such new lease within sixty (60) days from the date Landlord notifies such Leasehold Mortgagee of such termination and such written request is accompanied by payment to Landlord of all amounts then due to Landlord under this Ground Lease but for such termination, (ii) such Leasehold Mortgagee pays or causes to be paid to Landlord at the time of the execution and delivery of such new lease any and all sums which would at the time of the execution and delivery thereof be due under this Lease but for such termination and pays or causes to be paid any and all expenses, including reasonable counsel fees, court costs, and costs and disbursements incurred by Landlord in connection with any such termination and in connection with the execution and delivery of such new lease and (iii) such Leasehold Mortgagee agrees to reinstate the lien and take the Premises subject to the loan of any other Leasehold Mortgagee which held a lien senior in priority to the lien of such Leasehold Mortgagee if such senior Leasehold 16.D.10.e Packet Pg. 1148 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 11 Page 11 of 26 Mortgagee had also requested a new lease and tendered the required payments(s). The Landlord shall grant the most senior Leasehold Mortgagee that requests a new lease the first right to the new lease. b. Any new lease made pursuant to this Section 9.08 shall have the same priority as this Ground Lease (except with respect to any non-electing Leasehold Mortgagee) and shall be prior to any mortgage or any lien, charge or encumbrance of the fee of the Premises created by Landlord, for a term of years equal to the balance of the Term of this Lease. c. Any permitted mortgage or deed of trust upon the Fee Estate and any action by such mortgagee or trustee or beneficiary of such deed of trust by way of receivership, foreclosure, exercise or power of sale, or deed in lieu thereof shall be subject to this Lease and to the new lease to be given pursuant to this Section 9.08 and any mortgagee or holder of such mortgage or the beneficiary and trustee of any such deed of trust must recognize this Ground Lease and any new lease and all rights of Lessee and each Leasehold Mortgagee hereunder and thereunder. d. The provisions of this Section 9.08 shall be self-operative and require no further action by the mortgagee of any mortgage or beneficiary and trustees of any deed of trust encumbering Landlord’s interest in the Premises, the Building and/or the Project, but upon request by Lessee or the Leasehold Mortgagee electing under Section 9.08(a) hereof, Landlord agrees to obtain from such mortgagee or beneficiary and trustees an instrument duly executed and acknowledged confirming the priority of such new lease. 9.09 No Personal Liability for Leasehold Mortgagee. No Leasehold Mortgagee or its designee or affiliate shall have any liability under this Ground Lease for acts or omissions taking place prior to the date it acquires record title to Lessee’s interest and becomes the Lessee under this Ground Lease. Any liability to Landlord or Landlord’s successors and assigns shall be limited to the value of each Leasehold Mortgagee’s or its designee’s or affiliate’s respective interest in the leasehold estate. If a Leasehold Mortgagee or its designee or affiliate shall succeed to the interest of the Lessee under this Ground Lease, whether as a purchaser at a foreclosure sale or by the acceptance of a deed-in-lieu of foreclosure, such Permitted Leasehold Mortgagee, designee or affiliate shall (a) not be liable for any act or omission of Lessee and (b) be released from all liability prior to the date such Leasehold Mortgagee or its designee or affiliate succeeds to the interest of Lessee, such release being automatic with no further action required by any party. 10. Lessee’s Obligation to Maintain Premises and Comply with All Lawful Requirements. Lessee, throughout the Term of this Lease, at its own cost, and without any expense to the Lessor, shall keep and maintain the Leased Land in good, sanitary and neat order, condition and repair, and shall abide with all applicable lawful requirements. If the Premises are not in such compliance in the reasonable opinion of Lessor, Lessee will be so advised in writing. If corrective action is not begun within thirty (30) days of the receipt of such notice Lessee shall be subject to applicable fines or penalties available under Collier County law. 16.D.10.e Packet Pg. 1149 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 12 Page 12 of 26 11. Quiet Enjoyment. Lessee shall be entitled to quiet enjoyment so long as Lessee is not in default under Section 17 hereunder, on any of the terms of the Ground Lease. Accordingly, Lessee shall have the exclusive right to use the Premises during the Term. During the Term, Lessee may, in its sole discretion, construct, improve, alter, maintain, or renovate the Building. Any such work may be undertaken by Lessee at any time or times during the Term hereof and no consent or approval of Lessor shall be required unless such work consists of major alterations from plans and specifications originally approved by Lessor as more fully provided for herein. Lessor agrees to co-operate with Lessee in connection with the construction and agrees to execute any documents required by governmental authorities and any lender or investor evidencing Lessee’s rights hereunder and consenting to such work. During the Term of the Ground Lease, Lessee may erect appropriate signage on the Leased Land and the improvements constructed by Lessee thereon. Any such signage shall be in compliance with all applicable codes and ordinances. During the Term of this Ground Lease, Lessor agrees not to explore for or extract any petroleum, phosphates, minerals or metals on or about the Premises. 12. Casualty and Condemnation a. Casualty. If the Project is destroyed, or damaged to any extent by fire or other casualty, and Lessee shall apply any insurance proceeds ("Proceeds") to rebuild or restore the Leased Land to substantially its condition prior to such casualty event, unless the Lessee provides the Lessor with a written determination that rebuilding or restoring the Leased Land to such a condition with Proceeds within a reasonable period of time is impracticable or would not be in the best interests of the Lessee. If the Lessee elects not to repair or replace the improvements, then Lessee or Lessor may terminate the Ground Lease by providing notice to the other party within ninety (90) days after the occurrence of such casualty. The termination will be effective on the ninetieth (90th) day after Lessee makes such election, unless extended by mutual written agreement of the Parties. During the period between the date of such casualty and the date of termination, Lessee will cease its operations as may be necessary or appropriate. If the Ground Lease is not terminated as set forth herein, or if the Leased Land is damaged to a less than material extent, as reasonably determined by Lessee, Lessee will proceed with reasonable diligence, at no cost or expense to Lessor, to rebuild and repair the Leased Land to substantially the condition as existed prior to the casualty. The Proceeds shall be paid to Lessee, or as otherwise directed by the most senior Leasehold Mortgagee. Notwithstanding any of the foregoing, Lessor and Lessee acknowledge and agree that the use and availability of any insurance proceeds is subject to the rights of the Leasehold Mortgagees. Notwithstanding the foregoing, Lessor shall not terminate the Ground Lease under this Section 12(a) without the approval of each Leasehold Mortgagee. b. Condemnation. Lessee may terminate this Lease as part of a condemnation of the Project. 13. Access to Premises. Lessor, its duly authorized agents, contractors, representatives and employees, shall have the right after forty-eight (48) hour written notice to Lessee, to enter into and upon the Premises during normal business hours, or such other times with the consent of Lessee, to inspect the Premises, verify compliance with the terms of the Ground Lease, or make 16.D.10.e Packet Pg. 1150 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 13 Page 13 of 26 any required repairs not being timely completed by Lessee, provided, if Lessor wishes to access/enter any residential unit, it must do so in compliance with the applicable residential lease. 14. Termination and Surrender. Unless otherwise mutually agreed by the Parties, within thirty (30) days after termination of the lease Term, Lessee shall redeliver possession of the Project to Lessor in good condition and repair subject to normal wear and tear. Lessee shall have the right at any time during Lessee’s occupancy of the Premises to remove any of its personal property, equipment, and signs provided, however, at the termination of the Ground Lease, Lessor shall have the option to demolish and remove all improvements made by Lessee to the Leased Land upon Lessee’s vacation thereof, or to retain said improvements with fixtures on the Leased Land which improvements and fixtures will become the property of the Lessor upon Lessee’s vacation of the Premises. Notwithstanding anything herein to the contrary, the Ground Lease may not be terminated unless the Lessor, Lessee, Leasehold Mortgagee, and Investor have received an opinion of bond counsel that such termination will not adversely affect the exclusion from gross income for federal income tax purposes of the interest on any outstanding tax-exempt loans obtained to construct the Project. 15. Assignment and Sublease. Lessor acknowledges under FHFC’s Request of Applications, the Lease must be in the name of a legally formed single purpose entity (“SPE”) applying for funding. Whereas, the Ground Lease is personal to Lessee. Lessee may assign or sublease the Ground Lease without the prior written consent of the Lessor to the SPE whose partner shall be an affiliate of Lessee or pursuant to a foreclosure or deed in lieu of foreclosure to the Leasehold Mortgage. Affiliate is herein defined as a single purpose legal entity controlled, through membership or general partnership interest, by Lessee. Lessee must provide written notice to Lessor of any sublease or assignment to an Affiliate within thirty (30) days of such conveyance. Any purported assignment to a non-Affiliate or non-Leasehold Mortgageee without the express written consent of Lessor shall be considered void from its inception. It is hereby acknowledged and agreed between the parties that all covenants, conditions, agreements, and undertakings contained in this Lease shall extend to and be binding upon the respective sublessees and assigns of the respective parties hereto. 16. Insurance. a. Lessee shall maintain general liability and property liability insurance policy(ies), for not less than Five Million and 00/100 Dollars ($5,000,000.00) combined single limits during the Term of the Ground Lease. If such amounts are less than required by Leasehold MortgageeMortgagees, Lessee shall comply with the amount required by Leasehold Mortgagee. Landlord’s entitlement to proceeds from Lessee’s insurance policies is subordinate to the rights of all Leasehold Mortgagees under all Leasehold Mortgagees. b. Upon completion of the Building, Lessee shall also maintain standard fire and extended coverage insurance on the additions and improvements located on the Leased Land and all of Lessee’s property located on or in the Leased Land including, without 16.D.10.e Packet Pg. 1151 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 14 Page 14 of 26 limitation, furniture, equipment, fittings, installations, fixtures (including removable trade fixtures), personal property and supplies, in an amount not less than the then-existing full replacement value, but in no case less than the amount required by the Leasehold Mortgagee. c. All of the above-described insurance policy(ies) shall list and continuously maintain Lessor as an additional insured thereon. The property insurance policy shall list the lessor as their interest may appear. Evidence of such insurance shall be provided to Lessor and the Collier County Risk Management Department, 3301 East Tamiami Trail, Administration Building, Naples, Florida, 34112, prior to the insurance taking effect; and shall include a provision requiring not less than ten (10) days prior written notice to Lessor in the event of cancellation or material changes in policy(ies) coverage. The issuer of any policy must have a Certificate of Authority to transact insurance business in the State of Florida and must be rated "A" or better in the most current edition of Best's Insurance Reports. Each insurer must be responsible and reputable and must have financial capacity consistent with the risks covered. Each policy must contain an endorsement to the effect that the issuer waives any claim or right of subrogation to recover against Lessor, its employees, representatives and agents. d. The name of the Leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried by Lessee hereunder. Investor or Leasehold Mortgagee has the right to hold insurance proceeds and condemnation awards and disburse such amounts as repair and restoration progresses. e. Failure to continuously abide with all of these insurance provisions shall be deemed to be a material breach of the Ground Lease and Lessor shall have the remedies set forth below. 17. Defaults and Remedies. a. Defaults by Lessee. The occurrence of any of the following events and the expiration of the cure period set forth below without such event being cured or remedied will constitute a "Default by Lessee" to the greatest extent then allowed by law: i. Lessee’s abandonment of Leased Land and its determined non-use continues for ninety (90) consecutive days and discontinuation of Lessee’s operation. ii. After construction completion of the Project, Lessee’s failure to utilize the Leased Land as set forth in 2 and 3 of Exhibit B, which continues for more than one (1) year after such failure and the notice period in Section 4 above. iii. Any lien, other than those permitted encumbrances under Section 9, is filed against the Lessee’s interest on the Fee Estate, and the same remains unreleased for a period of sixty (60) days from Lessee’s 16.D.10.e Packet Pg. 1152 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 15 Page 15 of 26 notice unless within such period Lessee is contesting in good faith the validity of such lien and such lien is appropriately bonded. iv. Notwithstanding anything herein to the contrary, Lessor acknowledges and agrees that a Default by Lessee, as described in subsections 17(a)(i)-(iii) hereof, shall not apply to a party that succeeds Lessee as a result of a foreclosure sale and shall not be grounds for Lessor to terminate the Ground Lease so long as there is a Leasehold Mortgage encumbering the Project. b. Remedies of Lessor. i. During the Default by Lessee, Lessor, may apply all rights under this Lease, by law and equity against the Lessee. ii. If Lessee fails to promptly pay, when due, the rent or any other sum payable to Lessor under the Ground Lease, and if said sum remains unpaid for more than ten (10) days past the due date, the Lessee shall pay Lessor a late payment charge equal to five percent (5%) of each such payment not paid promptly and in full when due. Any amounts not paid promptly when due shall also accrue compounded interest of two (2%) percent per month or the highest interest rate then allowed by Florida law, whichever is higher ("Default Rate"), which interest shall be promptly paid by Lessee to Lessor. iii. During the Default by Lessee, Lessor may sue for direct, actual damages arising out of such Default by Lessee or apply for injunctive relief as may appear necessary or desirable to enforce the performance and observance of any obligation, agreement or covenant of Lessee under the Ground Lease, or otherwise. Lessor shall be entitled to reasonable attorney’s fees and costs incurred arising out of Lessee’s default under the Ground Lease. c. Default by Lessor. Lessor shall in no event be charged with default in the performance of any of its obligations hereunder unless and until Lessor shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct such default, but not to exceed an additional ninety (90) days) after written notice to Lessor by Lessee properly and in meaningful detail specifying wherein, in Lessee’s judgment or opinion, Lessor has failed to perform any such obligation(s). d. No Remedy Exclusive. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedy or remedies, but each and every such remedy will be cumulative and in addition to every other remedy given under the Ground Lease or hereafter existing under law or in equity. No delay or omission to exercise any right or power accruing upon any event of default will impair any such right or power nor be construed to be waived, but any such right and power maybe exercised from time to time and as often as may be deemed expedient. 16.D.10.e Packet Pg. 1153 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 16 Page 16 of 26 fe. Non-Waiver. Every provision hereof imposing an obligation upon Lessee is a material inducement and consideration for the execution of the Ground Lease by Lessee and Lessor. No waiver by Lessee or Lessor of any breach of any provision of the Ground Lease will be deemed for any purpose to be a waiver of any breach of any other provision hereof or of any continuing or subsequent breach of the same provision, irrespective of the length of time that the respective breach may have continued. Miscellaneous Legal Matters 18. The Ground Lease shall be construed by and controlled under the laws of the State of Florida. In the event of a dispute under the Ground Lease, the Parties shall first use the County’s then-current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action in the Circuit Court of Collier County to enforce the terms of the Ground Lease, which Court the Parties agree to have the sole and exclusive jurisdiction. 19. Other than that certain future Development Agreement, the Ground Lease contains the entire agreement of the Parties with respect to the matters covered by the Ground Lease and no other agreement, statement or promise made any party, or to any employee, officer or agent of any party, which is not contained in the Ground Lease shall be binding or valid. Time is of the essence in the doing, performance and observation of each and every term, covenant and condition of the Ground Lease by the Parties. 20. In the event state or federal laws are enacted after the execution of the Ground Lease, which are applicable to and preclude in whole or in part the Parties’ compliance with the terms of the Ground Lease, then in such event the Ground Lease shall be modified or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of the Ground Lease. 21. Except as otherwise provided herein, the Ground Lease shall only be amended by mutual written consent of the Parties hereto or by their successors in interest. Notices hereunder shall be given to the Parties set forth below and shall be made by hand delivery, facsimile, overnight delivery or by certified mail. If given by certified mail, the notice shall be deemed to have been given when received or first required. For the purpose of calculating time limits which run from the giving of a particular notice the time shall be calculated from actual receipt of the notice. Time shall run only on business days which, for purposes of the Ground Lease shall be any day other than a Saturday, Sunday or legal public holiday. Notices shall be addressed as follows: If to Lessor: County Manager Collier County Manager's Office 3301 East Tamiami Trail Naples, Florida 34112 If to Lessee: MHP Bembridge, LLC 16.D.10.e Packet Pg. 1154 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 17 Page 17 of 26 c/o McDowell Housing Partners 601 Brickell Key Drive, Suite 700 Miami, FL 33131 Attention: Chris Shear With a copy to: Nelson Mullins Broad and Cassel 390 North Orange Avenue, Suite 1400 Orlando, Florida 32801 Attention: Roman Petra, Esq. With a copy to: CREA, LLC 8141 Lakewood Main St., Ste 208 Lakewood Rach, FL 34202 Attention: Senior Vice President With a copy to: Nixon Peabody, LLP 799 9th Street NW, Suite 500 Washington, DC 20001-5327 If to Leasehold Mortgagee: Florida Housing Finance Corporation 227 N. Bronough Street, Suite 5000 Tallahassee, FL 32301 Attention: Tim Kennedy With a copy to: KeyBank National Association 4910 Tiedeman Road Mail Code: OH-01-51-0311 Brooklyn, Ohio 44144 Attention: Community Development Lending With a copy to: Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114 Attention: David M. Lewis, Esq. Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight delivery service. 22. Lessee is an independent contractor and is not any agent or representative or employee of Lessor. During the Term of the Ground Lease, neither Lessee, nor anyone acting on behalf of Lessee, shall hold itself out as an employee, servant, representative or agent of Lessor. Neither party will have the right or authority to bind the other party without express written authorization of such other party to any obligation to any third party. NoExcept as set forth herein, no third -party is intended by the Parties Lessor and Lessee to be a beneficiary of thethis Ground Lease or to have any rights to enforce the Ground Lease against either party hereto, or otherwise. 16.D.10.e Packet Pg. 1155 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 18 Page 18 of 26 Lessee acknowledges that Lessor is not providing any vacation time, sick pay, or other welfare or retirement benefits normally associated with an employee-employer relationship and that Notwithstanding the foregoing, Lessor excludesand Lessee and its employees from participation in all healthacknowledge and welfare benefit plans including vacation, sick leave, severance, life, accident, healthagree that the Investors and disability insurance, deferred compensation, retirement and grievanceeach Leasehold Mortgagee shall be deemed to be third-party beneficiaries of the provisions of this Ground Lease that reference such parties. The rights or privileges. of the Investors and each Leasehold Mortgagee to be third-party beneficiaries under this Ground Lease shall be the only right (express or implied) of such parties to be third-party beneficiaries under this Ground Lease. 23. Neither party to the Ground Lease will be liable for any delay in the performance of any obligation under the Ground Lease or of any inability to perform an obligation under the Ground Lease if and to the extent that such delay in performance or inability to perform is caused by an event or circumstance beyond the reasonable control of and without the fault or negligence of the party claiming Force Majeure. "Force Majeure" shall include an act of God, war (declared or undeclared), sabotage, riot, insurrection, civil unrest or disturbance, military or guerrilla action, economic sanction or embargo, civil strike, work stoppage, slow-down or lock-out, explosion, fire, earthquake, abnormal weather condition, hurricane, flood, lightning, wind, drought, and the binding order of any governmental authority. 24. Lessee will not transport, use, store, maintain, generate, manufacture, handle, dispose, release or discharge any Hazardous Materials upon or about the Leased Land, nor permit employees, representatives, agents, contractors, sub-contractors, sub-sub-contractors, material men and/or suppliers to engage in such activities upon or about the Leased Land except in the ordinary course of business. 25. In compliance with Section 404.056, Florida Statutes, all Parties are hereby made aware of the following: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present 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 in Florida. Additional information regarding radon and radon testing may be obtained from your County Public Health Department. 26. The Lessor agrees to cooperate with any audits that are required to be conducted in accordance with the provisions set forth in Florida Statutes, Section 20.055(5). 27. Lessee shall execute the Ground Lease prior to it being submitted for approval by the Board of County Commissioners. A memorandum of the Ground Lease may be record ed by the County in the Official Records of Collier County, Florida, within fourteen (14) days after the County enters into the Ground Lease, at Lessee’s sole cost and expense. 28. Lessee and Lessor shall enter into a developer agreement (“Development Agreement”) prior to the commencement of construction of the Building which shall be no later than Construction Commencement deadline set forth in Paragraph 5. Lessee shall not be allowed 16.D.10.e Packet Pg. 1156 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 19 Page 19 of 26 to commence construction of the Building until the Development Agreement is executed by the Parties. 29. Lessor acknowledges that Lessee’s lender or investor may request changes to the Ground Lease. Lessor agrees to reasonably amend the Ground Lease as necessary to accommodate the Mortgagee LenderLeasehold Mortgagees and/or Investor 30. In addition to any rights of the Mortgagee LenderLeasehold Mortgagees or Investor, if, within ninety (90) days after the mailing of any notice of termination or such later date as is thirty (30) days following the expiration of the cure period, if any, afforded Lessee, such lessee or investor cure Default by Lessee. 31. Notwithstanding anything to the contrary herein, during the Term of the Ground Lease, the Lessor shall not transfer, encumber, lien or otherwise dispose of the Fee Estate or the Premises or any interest therein without the prior written consent of the Lessee, Investor, and theeach Leasehold Mortgagee. 32. The Ground Lease contains the entire agreement between the parties hereto and all previous negotiations leading thereto, and it may be modified by virtue of the powers and authority vested in the Collier County Manager, Collier County, or Board of County Commissioners. 33. Each party hereto shall, at any time and from time to time within ten (10) days after being requested to do so by the other party, any Leasehold Mortgagee or Investor in writing, execute, acknowledge, and address and deliver to the requesting party (or, at the latter’s request, to any existing or prospective mortgagee, transferee, Investor or other assignee of the requesting party’s interest in the Premises or under this Lease which acquires such interest in accordance with this Lease), a certificate in recordable form, certifying (a) that the Ground Lease is unmodified and in full force and effect (or, if there has been any modification thereof, that it is in full force and effect as so modified, stating therein the nature of such modification); (b) that Lessee has accepted possession of the Premises, and the date on which the Term commenced; (c) as to the dates to which rent and other charges arising hereunder have been paid; (d) as to the amount of any prepaid rent or any credit due to Lessee hereunder; (e) as to whether, to the best of such party’s knowledge, information and belief, the requesting party is then in default in performing any of its obligations hereunder (and, if so, specifying the nature of each such default); and (f) as to any other fact or condition reasonably requested by the requesting party; and acknowledging and agreeing that any statement contained in such certificate may be relied upon by the requesting party and any such other addressee. 34. If any provision of the Ground Lease be held to be void or unenforceable under the laws of any place governing its construction or enforcement, the Ground Lease shall not be void or vitiated thereby, but shall be construed to be in force with the same effect as though such provisions were omitted. 16.D.10.e Packet Pg. 1157 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 20 Page 20 of 26 REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW 16.D.10.e Packet Pg. 1158 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 21 Page 21 of 26 IN WITNESS WHEREOF, the Lessee and Lessor have hereto executed the Amended and Restated Ground Lease the day and year first above written. AS TO THE LESSEE: MHP BEMBRIDGE, LLC, a Florida limited liability company By: MHP Bembridge Member, LLC, a Florida limited liability company, its Managing Member By: ________________________ W. Patrick McDowell Housing Partners, LLC ________________________ By: ______________________________ Witness (signature) Chief Executive Officer ______________________________ ________________________ (Print Name and Title) ________________________ (print name) ________________________ Witness (signature) ________________________ (print name) AS TO THE LESSOR: ATTEST: BOARD OF COUNTY COMMISSIONERS, CRYSTAL K. KINZEL,_________________, Clerk COLLIER COUNTY, FLORIDA By: ____________________________ By: ______________________________ , ___________________, Deputy Clerk William L. McDaniel, Jr., CHAIRMAN_______________________ (Print Name and Title) Approved as to form and legality: 16.D.10.e Packet Pg. 1159 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 22 Page 22 of 26 _________________________ Jennifer A. Belpedio Assistant County Attorney By: _________________________ _______________________ (Print Name and Title) 16.D.10.e Packet Pg. 1160 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 23 Page 23 of 26 EXHIBIT A LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN SECTION 4, TOWNSHIP 50 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE WEST QUARTER CORNER OF SECTION 4, TOWNSHIP 50 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA; THENCE NORTH 88°49'24" 16.D.10.e Packet Pg. 1161 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 24 Page 24 of 26 EAST, A DISTANCE OF 60.00 FEET TO THE EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, OF COLLIER COUNTY, FLORIDA; THENCE SOUTH 01°02'25" EAST ALONG THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, A DISTANCE OF 120.00 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED; THENCE NORTH 88°50'38" EAST LEAVING THE SAID EASTERLY RIGHT OF WAY LINE OF SANTA BARBARA BOULEVARD, A DISTANCE OF 343.48 FEET; THENCE SOUTH 00°47'41" EAST, A DISTANCE OF 481.27 FEET; THENCE SOUTH 88°55'35" WEST, A DISTANCE OF 341.42 FEET TO A POINT OF THE EASTERLY RIGHT OF WAY LINE OF SAN TA BARBARA BOULEVARD; THENCE NORTH 01°02'25" WEST ALONG THE SAID EASTERLY RIGHT OF WAY OF SANTA BARBARA BOULEVARD, A DISTANCE OF 480.77 FEET TO THE POINT OF BEGINNING. CONTAINING 164,724 SQUARE FEET OR 3.782 ACRES, MORE OR LESS. 16.D.10.e Packet Pg. 1162 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 25 Page 25 of 26 EXHIBIT B The minimum affordable requirements include, but are not limited to: 1) A three-story walk-up garden building, or a four-story elevator building, with at least 78 units (“Building”) and on grade parking in accordance with the conceptual site plan provided below (“Project”). The units shall feature solid surface countertops; plywood cabinets; ceramic and/or luxury vinyl tile flooring; full-size energy star appliances including range, refrigerator microwave, and dishwasher; and LED lighting. Community amenities will consist of on-site management and maintenance; stand-alone clubhouse or multipurpose community room; swimming pool; fitness center; media/computer room; and outdoor tot lot. 2) Workforce housing for households earning between 30-120% of area median income. 3) Lessee will include a minimum 10% of units identified for seniors, veterans and/or special needs populations. 4) Conceptual site plan: 16.D.10.e Packet Pg. 1163 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD) 26 Page 26 of 26 16.D.10.e Packet Pg. 1164 Attachment: Lease Comparison - Original to Amended (17865 : Amended and Restated Lease - Bembridge PUD)