Backup Documents 09/10/2019 Item #16F1-D (08/13/2019 in Absentia) ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 1 6 F 1 0
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the County Attorney Office
at the time the item is placed on the agenda. All completed routing slips and original documents must be received in the County Attorney Office no later
than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the
exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1.
2.
3. County Attorney Office County Attorney Office JAB 8/26/19l
4. BCC Office Board of County y\r/S\ tC
Commissioners � rV� t\\ \‘'=:\
5. Minutes and Records Clerk of Court's Office /�/i3/,
PRIMARY CONTACT INFORMATION `1
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the addressees
above,may need to contact staff for additional or missing information.
Name of Primary Staff Cormac Giblin,Community and 252-2399
Contact/Department Human Services
Agenda Date Item was 8/13/19 Absentia Agenda Item Number Item D
Approved by the BCC 9/10/19 Item \b-F-\
Type of Document Long-Term Ground Lease-Bembridge Number of Original One
Attached PUD Documents Attached
PO number or account
number if document is ' I�o Need 4v re c orcl
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A" in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signar e STAMP OK JAB
2. Does the document need to be sent to another agency for a..' '•1.1 si ui• es? If yes, JAB
provide the Contact Information(Name;Agency;Address; Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be JAB
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's JAB
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the JAB
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's JAB
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this JAB
routing slip should be provided to the County Attorney Office at the time the item is
input into MinuteTraq. Some documents are time sensitive and require forwarding
to Tallahassee within a certain time frame or the BCC's actions are nullified. Be
aware of your deadlines!
8. The document was approved by the BCC on 8/13/19 and 9/10/19 and all changes JAB N/A is not
made during the meeting have been incorporated in the attached document. The an option for
County Attorney's Office has reviewed the changes,if applicable. this line.
9. Initials of attorney verifying that the attached document is the version approved by the /A is not
BCC,all changes directed by the BCC have been made,and the document is ready for th- option for
Chairman's signature. • is line.
[04-COA-01081/1344830/1]1:Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS Original 9.03.04,Revised 1.26.05,Revised 2.24.05;
Revised 11/30/12
16F1D
MEMORANDUM
Date: September 13, 2019
To: Cormac Giblin, Community & Human Services
Senior Grants & Housing Coordinator
From: Teresa Cannon, Senior Deputy Clerk
Minutes & Records Department
Re: Long Term Ground Lease — Bembridge PUD
Attached is a copy of the Resolution as referenced above, (Item #16F1-D from
Absentia 8/13/19) approved by the Board of County Commissioners on Tuesday,
September 10, 2019.
If you have any questions, please contact me at 252-8411.
Thank you.
16F1D
COLLIER COUNTY STANDARD FORM
LONG-TERM GROUND LEASE
This Long-Term Ground Lease ( "Ground Lease") is entered into this 13 day of
a._ ,20 1'1,by and between McDowell Housing Partners,LLC,a Delaware
limited liaia ility company ("Lessee") registered to conduct business in Florida and Collier County, a
political subdivision of the State of Florida("Lessor") (collectively, Lessor and Lessee are"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 Affordable Housing Land Development."
WHEREAS, Lessee, a duly organized limited liability corporation, has been awarded
Invitation to Negotiate and has requested that the Board of County Commissioners enter into a 99-
year lease of the Premises; and
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.
WITNESSETH:
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:
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 Premises 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."
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
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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 utilize the Leased Land in strict accordance with the Lessee's
Response to Invitation to Negotiation 19-7556,as summarized in Exhibit B. 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) day 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. Lessee's Obligation to Build and Modifications to Building. Lessee shall design,
permit and construct in compliance with all applicable governmental regulations, at its sole cost and
expense, a Building to be solely utilized for the uses described in 2 and 3 of Exhibit B. The plans,
specifications and building design for the Lessee'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 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
I 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") and/or investor ("Investor")
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
is
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
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use by Lessee, its agents, officers or employees. Lessee must demonstrate to Lessor that it has
sufficient funds necessary to complete the Building, and Lessee shall, prior to construction
commencement, post a payment and performance bond or like security as required by 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.
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.
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.
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
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shall be subject to,subordinate and inferior to any loan obtained by the Lessee for the purpose
of financing the development and/or operation of the Project, and to the lien of 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,
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 instruments
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.
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 Lien and Encumbrance. 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 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 ("Permitted Encumbrance").
Lessor shall to the extend not prohibit by law, at Lessee's request,permit the Fee Estate to be
encumbered by affordability covenants, 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.
9.04 Rights of Leasehold Mortgagee. Upon foreclosure or assignment in lieu of
is foreclosure of the Leasehold Estate, pursuant to the terms of the applicable Leasehold
Mortgage, the most senior Leasehold Mortgagee 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
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or designee, then such Leasehold Mortgagee, or its nominee or designee, shall also have the
right to further assign or sublet the Leasehold Estate hereunder to a third party without the
consent or approval of Lessor.
9.05 Non-Merger. The Ground Lease shall not terminate as to the 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 consent by all Leasehold Mortgagees.
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.
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
is on the Leased Land and the improvements constructed by Lessee thereon. Any such signage shall be
in compliance with all applicable codes and ordinances.
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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
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Leased Land to substantially the condition as existed prior to the casualty. The Proceeds shall
be paid to Lessee,or as otherwise directed by Leasehold Morgtagee.
b. Condemnation. Lessee may terminate this Lease as part of a condemnation 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 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.
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. 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 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
Mortgagee,Lessee shall comply with the amount required by Leasehold Mortgagee.
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 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,
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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. 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 notice
unless within such period Lessee is contesting in good faith the validity
of such lien and such lien is appropriately bonded.
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
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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.
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f. 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
is 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.
is 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.
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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
is
If to Lessee: 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.
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. No third party is intended by the Parties to be a
beneficiary of the Ground Lease or to have any rights to enforce the Ground Lease against either party
hereto or otherwise. 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 Lessor excludes Lessee and its employees from participation in all health and welfare benefit
plans including vacation,sick leave, severance,life,accident,health and disability insurance,deferred
compensation, retirement and grievance rights or privileges.
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
9
i'.
16F1D
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 recorded 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 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 Lender and/or Investor
30. In addition to any rights of the Mortgagee Lender 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 or otherwise dispose of the Fee Estate or the Premises or any
interest therein without the prior written consent of the Lessee,Investor,and the Leasehold Mortgagee
is
10
16F1D
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
11
is
i1
16F10
IN WITNESS WHEREOF, the Lessee and Lessor have hereto executed the Ground Lease the
day and year first above written.
AS TO THE LESSEE: McDowell Housing Partners, LLC
By:
.?„
Witness (signature)
Charles W.Koslosky,Chief Financial Officer
Tail-Pcu.t� t (Print Name and Title)
(print name)
Witn-ss (signature)
NcttUtee Min
(print name)
AS TO THE LESSOR:
,TT, $ ' :{. BOARD OF COUNTY COMMISSIONERS,
'STA . K...'1 INZEL, Clerk COLLIER COU " •RIDA
a . By. ( €)
,410
int*.0 dial fsputy Clerk Willi 'L. McDa -:,i'., `A i~VAN
Approved as to form
and legality: Approved in absentia per Resolution
2000-11A on Au. = 13 2019
By:
go E. Ochs, J County Manager
Jennifer A. Belpedi. ,.,� (�j ����
Assistant County Attorney c $t1
12
16F10
EXHIBIT A
N69'36` 7`1
60.40'
1
POLN7 OF
w
COMMENCEMENT �•
NEST 1/4 CORNER )tl7a'?A!'57'E
(IF SF1.TKlh 4
345,47'
POINT OF I W
BEGINNING 7)
WEST UNE OF I
1NE SW 1/4 I
OF SECTION 4,-_,
4
U
O. w
t_ FLI1 M'Jltis, 4/-- w
N z ,n 1'
Q
1.,--.:
r
FA
m
SOW-40'03'W
X
LEGEND: I <-4 1.2
R/'W RIGHT-OF-WAY I ga S69'43'06"W 300,65'
I z
I
DESCRIPTION:
A A PARCEL OF LANG LOCATED IN SECTION 4, TOWNSHIP 50 SOUTH, RANGE 20 EAST,COWER COUNTY,
: FLORIDA AND BEING MORE PARTICI:".A9LY DESCRIB 1 AS FOLLOA5:
P
COMMENCE AT THE WEST QUARTER CORNER CF SECTION 4, TOWNSHIP 50 SOUTH,RAIICE 26 EAST,
it COLLIER COUNTY,FLORIDA; THENCE N,6036'S7`E. 60,00 FEET TO TRE EAST RICHT OF WAY UNE OF
SANTA BARBARA BCULEVARD; THENCE S.CO14'52"E.ALONG SAID EAST R,'CHT OF WAY LINE 120,00 FEET
t TO THE POINT OF BECltUt1l1G: THENCE H.8916'5TE. 343.47 FEET: THENCE 5.00'UO'12"£. 660.04 FEET;
DII(NCE s.89'43'08"W. 303,65 FEET: HIFNGt N,0014's2"'N. 81,10 FOOT: INt._yOi.:.S.R9'io'D3`W, 40.00
i FEET; THENCE 8:00.14'52"W, 577,76 FEET TO THE PONT CF BECINIONO,
I CONTAINING 222,390 SQUARE FEET CR 5.11 ACRES,MORE CR LESS,
n
Y
NOTES: CERTIFICATION:
P. I. TiiIS IS NOT A SUR1rEY-
2. BEAR-INOS ARE BASED ON THE NEST Brmp E.E.3}Tsv(For the Flnn L8AY14Y}
UNE OF THE SOUTHWEST CUARTER OF Profeo^Iono1 I.aad$iH'. r Florida CortiTaoto No.5369
SECTION 4, AS BEING N. 04'14.52' W.
3.SUOJECT TO EASEMENTS, RESERVATIONS Date Syne": _ _....,.m
,. ANLL RESTRICTIONS OF RECORD, Not%mild rrIthout She s;gnolute and iho oriyhol raised
a seal of a Randa(located Sorvayar and Moppar
,. 23511 S1AFjFC:RT7 CQI1H7
I
\ . NAPLES,i1.ORIM 131323'. 1I ',(•�..'�: PIKTI;E (39) 474-D334SR,1 I'1:1i AND 1)IiSC1LIP'1'lUN
FAX(232) 434-8320
ENGINEERING E.D. (642 h L.O. 1642 r."' �/MAR
A 7 R:.a7l ahy,:2b o. L Ila I f LY)
'
Note; This Long Term Ground Lease shall be exclusive of any property
used for Collier County Master Pump Station#313 (MSP313).
13
16F10
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:
III MCD9wE11 �Ilt;i.r:lSl'l�(,l1[X'I1
H�»� r
SANTA 6.AR9ARA BLVD. - ...
` - SITE DATA
EXISTING SITE
AREA:3.55 Ac
PROPOSED SITE
AREA:3.76 Ac
- 1 (approx.)
,
I MULLTIFAMI USE::
I
1 I BUILDINGS
6 1A:24 UNITS
111014111 El �� B:34 UNITS
[ ® HEIGHT:3 STORY
CLUB
11119 UNITS
HOUSE - net. 1 BED:24
1=4: til
2 BED:46
I- , ® PLAY ..,• 3 BE0:12
GROUND TOT:82 UNITS
i--, 1 0 MI ■0 MN im
I! I PARING
L.. ' 144 SPACES
PROPOSED I Ill NM
l'�•�
ATION J/ /
PARCEL / ' ; , I c
/ 1 11
- - 1 ` - - TRASH❑ t
i
k16G NEW PUMP STA PROP.LINE ISPCIM.I y L N
PROPOSES J/f` EXISTING
PROPERTY PROPERTY SCALE 1•:!Q
SITE PLAN LINE LINE 17 l-~
BEMBRIDGE STORMWATER
COLLIER COUNTY.FLORIDA RETENTION POND a•+: Ix- IOW
5-28-19
14