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2001-24643 RESO RESOLUTION NUMBER 2001-24643 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE ATTACHED STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, WHICH PROVIDES SHIP PROGRAM FUNDS IN THE AMOUNT OF $641,005 FROM FISCAL YEAR 2000/2001 TO CONTINUE A REHABILITATION COMPONENT FOR THE SCATTERED- SITE HOME OWNERSHIP PROGRAM PROVIDING REHABILITATION, DOWN PAYMENT ASSISTANCE, CLOSING COST ASSISTANCE AND HOME OWNERSHIP COUNSELING, FOR UNITS PURCHASED BY ELIGIBLE HOME BUYERS UNDER THE RULES OF THE SHIP PROGRAM AND THE CITY'S LOCAL HOUSING ASSISTANCE PLAN; SAID APPROVAL AND EXECUTION OF AGREEMENT CONTINGENT UPON REVIEW AND RECOMMENDATION FROM THE LOAN REVIEW COMMITTEE AT ITS OCTOBER 19TH MEETING. WHEREAS, the State of Florida enacted the William E, Sadowski Affordable Housing Act (the Act) on July 7,1992, allocating a portion of new and existing documentary stamp taxes on deeds to local governments to stimulate the production of housing through the State Housing Initiatives Partnership (SHIP) Program; and WHEREAS, the Act requires that in order to qualifY for funding, local governments develop a Local Housing Assistance Plan outlining how the funds will be used; and WHEREAS, on April 1, 1998, the Mayor and City Commission approved and adopted a Local Housing Assistance Plan for fiscal years 1998/1999, 1999/2000, and 2000/2001 by Resolution No. 98-22696, pursuant to the requirements of the Act and the SHIP Rule issued by the Florida Housing Finance Corporation; and WHEREAS, the City issued a Notice of Funding Availability (NOF A) on August 17, 2001, pursuant to the City's approved Local Housing Assistance Plan; and WHEREAS, the Administration now requests that the attached State Housing Initiatives Partnership (SHIP) Program Agreement be approved by the Mayor and City Commission and executed by the Mayor and City Clerk, but that said approval and execution be contingent upon review and recommendation ofthe City's Loan Review Committee at its October 19th meeting. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are authorized to execute the attached State Housing Initiatives Partnership (SHIP) Program Agreement between the City and Miami Beach Community Development Corporation, which provides SHIP Program funds in the amount of$641,005 from fiscal year 2000/2001 to continue a rehabilitation component for the Scattered-Site Home Ownership Program providing rehabilitation, down payment assistance, closing cost assistance and home ownership counseling, for units purchased by eligible home buyers under the rules of the SHIP Program and the City's Local Housing Assistance Plan; said approval and execution of agreement contingent upon review and recommendation from the Loan Review Committee at its October 19th meeting. Passed and adopted this jl'lth dayof October ,2001. J MAYOR ATTEST: _~r f~ CITY CLERK ComrnRes 2000-01.doc APPROVED AS TO fORM. LANGUAGE . FOR EXECUTION ~~l ({00 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 http:\\ci .miami~beach.f1.us TO: FROM: SUBJECT: COMMISSION MEMORANDUM DATE: October 17, 2001 Mayor Neisen O. Kasdin and Members of the City Commission JorgeM.Gonzalez \ ..J City Manager d ",.- 0 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE ATTACHED STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, WHICH PROVIDES SHIP PROGRAM FUNDS IN THE AMOUNT OF $641,005 FROM FISCAL YEAR 2000/2001 TO CONTINUE A REHABILITATION COMPONENT FOR THE SCATTERED-SITE HOME OWNERSHIP PROGRAM PROVIDING REHABILITATION, DOWN PAYMENT ASSISTANCE, CLOSING COST ASSISTANCE AND HOME OWNERSHIP COUNSELING, FOR UNITS PURCHASED BY ELIGIBLE HOME BUYERS UNDER THE RULES OF THE SHIP PROGRAM AND THE CITY'S LOCAL HOUSING ASSISTANCE PLAN; SAID APPROVAL AND EXECUTION OF AGREEMENT CONTINGENT UPON REVIEW AND RECOMMENDATION FROM THE LOAN REVIEW COMMITTEE AT ITS OCTOBER 19TH MEETING. ADMINISTRATION RECOMMENDATION Adopt the Resolution. ANALYSIS The State Housing Initiatives Partoership (SHIP) Program, administered through the Florida Housing Finance Corporation, was established by the 1992 William E. Sadowski Affordable Housing Act to stimulate the production of housing statewide. SHIP Program funds are derived from documentary stamp levies on real estate transactions. Annually, the Florida Housing Finance Corporation allocates SHIP Program funds among participating jurisdictions on a formula basis. The City has participated in the SHIP Program since fiscal year 1995/1996. As required by the Florida Housing Finance Corporation, on April 1, 1998, the City adopted a new Local Housing Assistance Plan for State fiscal years 1998/1999, 1999/2000, and 2000/2001. The City has received and allocated $709,151 for fiscal year 2000/01. In accordance with the SHIP Program guidelines, a minimum of75% of SHIP Program funds must be used for rehabilitation, new construction, or emergency repairs. Concurrently, a minimum of 65% ofthe SHIP funds must be AGENDA ITEM e 7 {.( DATE 10-/7-01 F;\DDHPI$ALLlMIGUELL\ConunMemo 2000-01.doc COMMISSION MEMORANDUM PAGE 2 used as part of home ownership activities. Ten (10) percent of each fiscal year allocation and five (5) percent of program income are utilized for administrative costs associated with the Program. In accordance with the City's Local Housing Assistance Plan, the City utilized $68,146 for administrative costs from the $709,151 SHIP Program funds allocated to the City. The balance of funds from fiscal year 2000/2001 was utilized to issue a Notice of Funding Availability (NOF A) in the amount of$641 ,005 on August 17, 2001. The NOF A sought an experienced housing provider to utilize SHIP Program funds for rehabilitation of scattered-site dwelling units to provide home ownership opportunities for eligible homebuyers. Responses to the NOF A were due on September 21,2001. The City received one proposal. The Miami Beach Community Development Corporation (MBCDC) applied for $641 ,005 and proposed to utilize the SHIP funds to continue the rehabilitation component of its successful Scattered-Site Home Ownership Program. In accordance with the City's Local Housing Assistance Plan, the SHIP Program funds will be used to provide rehabilitation, down payment assistance, and closing cost assistance to a minimum of 20 units in order to provide home ownership opportunities to eligible home buyers, including City employees. Concurrently, home ownership counseling will be provided to 60 participants. The Scattered-Site Home Ownership Program also utilizes funds leveraged by MBCDC from the Miami-Dade County's Documentary Surtax Program and from the federal HOME Program. These funds are utilized to provide down payment assistance to participants in the form of second and third mortgages. In accordance with the terms ofthe NOF A, the Housing staff reviewed the proposal and submitted it to the Loan Review Committee (LRC). The LRC typically reviews all proposals and makes recommendations to the Mayor and City Commission, However, due to the State fiscal situation, this item is being presented to the Mayor and City Commission before the LRC meets on October 19, 2001. Approval and execution of the agreement is contingent upon review and recommendation from the Loan Review Committee at its October 19th meeting. The Administration proposes to enter into a SHIP Program agreement with MBCDC. Under this agreement, MBCDC will rehabilitate a minimum of 20 dwelling units to be made available to eligible homebuyers, including City employees, under the SHIP Program rules by June 30, 2003. Since 1996, Miami Beach Community Development Corporation (MBCDC) has successfully operated a rehabilitation component for their Scattered-Site Home Ownership Program with funding from the City's SHIP Program. To date, MBCDC has rehabilitated 80 condominium units and utilized SHIP funds in a timely manner. The Administration recommends that the Mayor and City Commission adopt this resolution, authorizing the Mayor and City Clerk to execute the attached State Housing Initiatives Partoership (SHIP) Program Agreement between the City and Miami Beach Community Development Corporation, which provides SHIP Program funds in the amount of $641,005 from fiscal year 2000/2001 to continue a rehabilitation component for the Scattered-Site Home Ownership Program providing rehabilitation, down payment assistance, closing cost assistance and home ownership counseling, for units purchased by eligible home buyers under the rules of the SHIP Program and the City's Local Housing Assistance Plan; said approval and execution of agreement is contingent upon review d recommendation from the Loan Review Committee at its October 19th meeting. 1M F:\DD P t AGREEMENT ;fr. TIDS AGREEMENT, entered into this n day ofOC.TO e.on-,.2001 by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a not-for-profit Florida corporation, with its principal office located at 945 Pennsylvania Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC). WITNESSETH: WHEREAS, the City has determined the necessity for providing affordable housing in Miami Beach through its Consolidated Plan, which was adopted by Resolution No. 95-21670, on July 26, 1995; and WHEREAS, the City has been designated by the Florida Housing Finance Administration as an eligible municipality for the receipt of funds as provided under the State Housing Initiatives Partnership (SHIP) Program pursuant to Chapter 67-37 of the Florida Administrative Code (F.A.C.); and WHEREAS, the City has entered into an Agreement with the Florida Housing Finance Corporation under the terms of the SHIP Program in order to expand the supply of decent, safe, sanitary and affordable housing within the City, for income-eligible persons by making available funds to rehabilitate dwelling units; and WHEREAS, MBCDC has operated a "Scattered-Site" homebuyer program since 1990, assisting low- and moderate-income individuals and families in the purchase of condominiums at various locations throughout Miami Beach by providing downpayment assistance and other forms of aid to the prospective homebuyers. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS Terms shall be as defined in the State Housing Incentives Partnership (SHIP) Program, 67-37 F.A.C., and any amendments thereto. Any term defined in the SHIP Program Rule, not otherwise defined in this Agreement, shall have the meaning set forth in said rule. ARTICLE n BUDGET AND SCOPE OF SERVICES MBCDC will utilize the funds set forth in Exhibit "B", attached hereto and made a part hereof by reference, for rehabilitation, down payment assistance, closing cost assistance, and home ownership counseling for a Scattered- Site Home Ownership Program in accordance with the Scope of Services in Exhibit "B", attached hereto and made a part hereof by reference. ARTICLE m PROGRAM INCOME MBCDC agrees that any program income generated from the use of the Funds under this Agreement, or funds repaid for any reason, after making all debt repayments to the City, or other lender, if any, is to be used to further other affordable housing activities. 1 ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE SHIP AND HOME PROGRAMS The parties hereto acknowledge that the funds provided hereunder are to be used in conjunction with funds received through the HOME Program. Therefore some or all of the projects assisted will be required to comply with the rules of both programs. The State of Florida has acted to encourage the use of SHIP Program funds in coordination with HOME funds by suggesting that in projects which use funding from both sources, generally the HOME rules will take precedence. Alternatively, the rule which is more restrictive will apply. MBCDC expressly agrees to the following terms and conditions in conformity with Chapter 67-37, F.A.C.: (a) Affordability Period. The period oftime SHIP assisted units must remain affordable is in accordance with Chapter 67 -3 7 F .A.C. as applicable, or the term of a HUD insured mortgage, whichever period occurs later. The funds shall be repaid to the City in accordance with the provisions of the HOME Program regulations 24 CFR Part 92.254, in the event the housing is transferred or sold for any purpose other than settling the estate of one of the owners. (b) Repayment of Funds; Transfer of Title. The funds (which definition shall include the allocation of any additional funds that may be provided by the City in the future as a result of an amendment or modification of this Agreement) shall be repaid in their entirety if the SHIP units are transferred or sold to another owner except as specified herein. Concurrent with the closing on the property rehabilitated hereunder, the owner shall execute a Restrictive Covenant incorporating the terms of this section. (c) Projects must provide safe, sanitary, and decent residential housing for low-income and very low- income, and moderate-income persons (i.e., a person whose income is within specific income levels set forth herein, as documented by U.S. HUD). (d) Income Targeting. MBCDC shall ensure and maintain written documentation that conclusively demonstrates that each project assisted in whole or in part with SHIP funds provides benefit to very-low (families whose annual incomes that do not exceed 50 percent of the median family income for the area) and low-income (families whose annual incomes do not exceed 80 percent of the median income for the area) and moderate income (families whose annual incomes which do not exceed 120% of the area median income), as determined and published from time-to-time by U.S. HUD. (e) MBCDC affirms that it maintains a financial management system that conforms to the financial accountability standards of Attachment F ofOMB Circular A-II0. (I) Records: MBCDC agrees to maintain all records sufficient to meet the requirements of Chapter 67-37 F.A.C., including, but not limited to: program records, project records, and program administration records. All records required herein shall be retained and made accessible for a period of at least three (3) years after closing, as provided in Chapter 67-37, and Florida Statutes Chapter 119. (g) Property Standards. For the duration of this Agreement and any amendments hereto, housing that is assisted with SHIP funds, at a minimum, must meet the Housing Quality Standards ofCFR Section 882.109. In addition, housing that is newly constructed or substantially rehabilitated with SHIP funds must meet all applicable local codes, rehabilitation standards, ordinances, and zoning ordinances. (h) Maximum and Minimum Amount of SHIP Funds Per Unit. The minimum amount of SHIP funds that can be invested is $1,000 per dwelling unit, and the maximum amount of SHIP subsidy is limited to $30,259 per unit. 2 (I) Environmental Clearance. For each activity or project assisted hereunder, immediately after a site is identified, MBCDC shall obtain the City's written environmental clearance statement and hereby agrees to comply with any and all requirements as may be set forth in the Site Environmental Clearance Statement. 0) Affrrmative Marketing. The parties acknowledge that it is unlawful to discriminate on the basis of race, creed, color, religion, age, sex, sexual orientation, marital status, familial status, national origin or handicap. MBCDC agrees to adopt affirmative marketing procedures and requirements, in writing, for SHIP -assisted housing as set forth in Chapter 67-37 F.A.C. (k) Affordable housing: home ownership. Housing that is for purchase qualifies as affordable housing only if the housing has an initial purchase price or, appraised value after rehabilitation or repair, that does not exceed 90% of the median purchase price for existing single-family housing for the Miami PMSA, currently $113,418, and subject to change from time-to-time, as determined by the U.S. Department of the Treasury; is the principal residence of an owner whose family qualifies as very low-, low- or moderate-income at the time of purchase; and is subject to resale restrictions or recapture provisions established by the City for the required period of affordability. ARTICLE V ELIGIBLE COSTS MBCDC agrees that eligible costs for the projects under this Agreement are limited to those eligible costs as outlined in Chapter 67-37.007 of the SHIP Program Rule. It is expressly agreed by the parties that no funds obtained hereunder will be used to acquire, rehabilitate or otherwise assist mobile homes. ARTICLE VI METHOD OF PAYMENT (a) MBCDC shall be paid monthly for eligible costs expended, as permitted under the Scope of Services in Exhibit B, based on actual costs expended, with supporting documentation provided for expenses that are considered reasonable and necessary and approved by MBCDC's authorized representative. (b) Any payment due under the terms of this Agreement will be issued upon receipt and approval by the City of all reports and documents which MBCDC is required to submit to the City pursuant to the terms of this Agreement and any amendments thereto. (c) MBCDC agrees to provide evidence of appropriate licenses and insurance as required by this Agreement for each location assisted hereunder, such evidence must be kept on file with the City. ARTICLE VII SUBCONTRACTS (a) The parties agree that the work or services covered by this Agreement, including but not limited to rehabilitation work or services, may be subcontracted without the prior written approval of the City. MBCDC agrees to obtain at least three bids for all rehabilitation work estimated to be in excess of$500. Copies of all bids received shall be kept in the job file. A copy of the executed contract must be forwarded to the City within ten (10) days after execution. (b) MBCDC agrees to include in all contracts and subcontracts that the contractor or subcontractor( s) shall hold the City harmless against all claims of any nature arising out of the contractor's performance of work under the contract and this Agreement to the extent allowed by law. 3 ARTICLE vm CONDITIONS OF SERVICE As a condition of these services, MBCDC agrees to comply with the regulations of the SHIP Program and any amendments thereto as stated in Chapter 67-37 F .A.C. (a) Equal Opportunity: MBCDC agrees to abide by and be governed by the Equal Opportunity and Fair Housing laws. No person in the United States shall on the grounds of race, color, national origin, religion, disability or sex be excluded from participation in, or be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with SHIP funds. (b) Housing assisted with SHIP funds shall be subject to testing and abatement activities for lead-based paint. ARTICLE IX TERM OF AGREEMENT This Agreement shall be deemed effective commencing with the execution of the fund reservation agreement reserving the Funds. The City and MBCDC mutually agree that the Funds are reserved for MBCDC for the designated time period as follows: (a) Fiscal Year 2000/2001 funds in the amount of$588,382 plus $52,623 of accrued interest, totaling: $641,005 is reserved through March 30, 2003. MBCDC shall have arranged for the rehabilitation ofa minimum of twenty (20) dwellings prior to March 30, 2003 pursuant to this agreement. If MBCDC is not in compliance with the schedule attached hereto, the City, in its sole discretion, shall have the right to declare this agreement null and void with regard to the remaining uncommitted funds, and the City shall take any and all actions it deems necessary to carry out the commitments of the SHIP Housing Assistance Plan, including selecting another service provider for all or part of the unspent funds. ARTICLE X TERMINATION The City and MBCDC agree that this Agreement may be terminated by the parties in whole or in part, for cause (as more specifically defined in herein) or for convenience, in accordance with the provisions of Chapter 67- 37, F.A.C. Written notification shall be submitted at least thirty (30) days prior to the effective date of such termination, and shall include the reason for the termination (if for cause), the effective date, and in the case of a partial termination, the actual portion to be terminated. Notwithstanding the language set forth herein, the City's reasons for terminating the Agreement for convenience, in whole or in part, shall not be arbitrary or capricious. ARTICLE XI AMENDMENTS Any amendments, alterations, variations, modifications or waivers of any provisions to this Agreement, including an increased allocation of Funds, will only be valid when they have been reduced to writing and duly signed the both parties hereto. Any changes which do not substantially change the Scope of Services or increase the total amount payable under this Agreement, shall be valid only when reduced to writing and signed by the City Manager (or his designee) and MBCDC. ARTICLE XII CONFLICT OF INTEREST (a) MBCDC shall comply with the standards contained within Chapter 67-37, F.A.C. 4 (b) MBCDC shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. MBCDC shall make such disclosure in writing to the City immediately upon MBCDC's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, dealing with a for-profit subsidiary or affiliate organization, an organization with overlapping board of directors, or an organization for which MBCDC is responsible for appointing members. MBCDC shall report this information to the City upon forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported in the City required Progress Report. ARTICLE xm INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City from any and all claims, liabilities, losses, and causes of action which may arise out of any act, omission, negligence or misconduct on the part ofMBCDC or its efforts, employees, agents and/or invitees. MBCDC shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name of the City, when applicable, and shall pay all costs and judgements which may issue thereon. MBCDC or the General Contractor(s) selected to conduct the rehabilitation work hereunder shall provide a General Liability Insurance Policy with coverage for Bodily Injury and Property Damage, in the amount of $1,000,000 per occurrence (The policy must include coverage for contractual liability to cover the above indemnification); and the City of Miami Beach shall be named as an additional insured followed by the statement: "The coverage is primary to all other coverage carried by the City covering this specific agreement only." MBCDC or the General Contractor(s) shall provide proof of Workers' Compensation Coverage meeting the statutory limits of the State of Florida. MBCDC shall submit to the City an ORIGINAL Certificate of Insurance. All insurance coverage shall be approved by the City's Risk Manager prior to the release of any Funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty (30) days after the execution of this Agreement, this Agreement shall become null and void, and the City shall have no obligation under the terms thereof unless a written extension of this thirty (30) day requirement is secured from the Risk Manager. ARTICLE XIV REPORTS (a) Progress Reports. MBCDC agrees to submit monthly progress reports to the City, describing the status of each proposed project and achievement of the project objectives as provided in the Scope of Services, (Exhibit B), attached hereto. The progress reports shall be submitted no later than 10 days after the end of each month, and shall continue until such time as all Funds are expended on specific projects. (b) It will be the responsibility of MBCDC to notify the City in writing, of any action, law, or event, that will impede or hinder the success of the projects and activities as provided in this Agreement. After such notification the City will take whatever actions it deems appropriate to ensure the success of the program. ARTICLE XV AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City Administration and/or the Florida Housing Finance Corporation (FHFC) may deem necessary, there shall be made available to the City Administration 5 and/or representatives of the FHFC to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. If during the course of its monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure, the City will have the right to deduct/reduce those amounts from their related invoices. MBCDC must maintain records necessary to document compliance with the provisions of this Agreement, for at least three (3) years after the close of the fiscal year in which the funds reserved hereunder are fully expended. ARTICLE XVI COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS MBCDC agrees to comply with all applicable Federal and State regulations as they may apply to program administration. Additionally, MBCDC will comply with all State and local laws and ordinances hereto applicable, specifically including the SHIP Program Rule. ARTICLE XVII ADDITIONAL CONDITIONS (a) It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement, to be used for compensation originated from grants under the SHIP Program and are contingent upon approval of activities by the State of Florida. (b) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (c) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall have precedence. In the event of conflict between the terms of this Agreement and any terms or conditions contained in the SHIP Program Rule, the terms of the SHIP Program Rule shall have precedence. (d) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. ARTICLE XVIll ACCESS TO RECORDS MBCDC agrees to allow access during normal business hours to all [mancial and SHIP Program records to authorized State or City representatives and agrees to provide such assistance as may be necessary to facilitate the conduct of a financial or operational audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and fmancial standards. MBCDC shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. ARTICLE XIX SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release or other type of publicity pertaining to the project as stated herein must recognize the City as the recipient funded by the Florida Housing Finance Corporation, under the State 6 Housing Initiatives Partnership (SHIP) Program and administered by the CommunitylEconomic Development Department of the City of Miami Beach as the entity which provided funds for the Project. ARTICLE XXI SUCCESSORS AND ASSIGNS MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXII INDEPENDENT CONTRACTOR MBCDC and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further they shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXln ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the City thereto. It shall be deemed a default of this Agreement in the event that MBCDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defmed by this Article. In the event such consent is not obtained, in the manner prescribed herein, the City shall be entitled to declare a default, cancel this Agreement, and resort to its rights and remedies against MBCDC In the event MBCDC transfers an interest of more than five (5%) percent ownership in its stock by pledge, sale, or otherwise; or ifMBCDC makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if MBCDC is involved in any bulk transfer of its business or assets, then in that event each of the foregoing actions shall also be deemed an assignment of this Agreement and shall require the City's prior written consent. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receiver for MBCDC, shall be deemed an assignment of this Agreement and will require the prior written consent of the City thereto. ARTICLE XXIV EVENTS OF DEFAULT The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement in whole or in part for cause, as prescribed in Article X herein. "Cause" shall include the following: (a) Failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any State or local regulation; (b) Submitting any required report to the City which is late, incorrect, or incomplete in any material respect after notice and reasonable opportunity to cure, as set forth in subparagraph (h) hereof, has been given by the City to MBCDC; (c) Implementation of this Agreement, for any reason is rendered impossible or infeasible; (d) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by the City, including providing substantiating documentation when requested by the City; (e) Any evidence of fraud, waste or mismanagement as determined by the City's monitoring of project( s) under this Agreement, or any violation of applicable SHIP Program Rules and regulations; 7 (I) MBCDC'S insolvency or bankruptcy; (g) An assignment or transfer of this Agreement or any interest therein which does not comply with the procedures set forth herein; (h) If a default is not fully and satisfactorily cured within thirty (30) days ofMBCDC's receipt of a notice of default by the City, at the expiration of said thirty (30) day period (or such additional period of time as may be permitted by the City, in its sole discretion, as required to cure such default in the event MBCDC is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the City fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of this Agreement. ARTICLE XXV ADDITIONAL REMEDIES In the event of a default, the City shall additionally be entitled to bring any and all legal and/or equitable actions which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE XXVI MAINTENANCE AND RETENTION OF RECORDS MBCDC agrees that it will maintain all records required pursuant to Chapter 67-37, F.A.C., in an orderly fashion in a readily accessible, permanent and secure location, and that it will prepare and submit all reports necessary to assist the City in meeting record keeping and reporting requirements thereunder. (a) Records shall be maintained for a period of three (3) years after the closeout of funds under this Agreement except as provided herein (b), (c) and (d). (b) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in paragraph (a), whichever is later; (c) Records regarding project requirements that apply for the duration of the period of affordability, as well as the written agreement and inspection and monitoring reports must be retained for three years AFTER the required period of affordability; ARTICLE XXVII LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of the Funds reserved hereunder, less any amount of the Funds actually paid to MBCDC by the City at the time of the alleged breach. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the Funds, less any amount, in whole or in part, of the Funds actually paid to MBCDC by the City at the time of the alleged breach. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of the Funds, less any amount, in whole or in part, of the Funds actually paid to 8 MBCDC by the City at the time of the alleged breach, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. ARTICLE xxvm VENUE This Agreement shall be enforceable in Miami-Dade County Florida, and iflegal action is necessary by either party with respect to the enforcement of any or all of the terms and conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. ARTICLE XXIX ADDITIONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the purposes described herein, originated from grants of State Housing Incentives Partnership (SHIP) Program funds, and must be implemented with all of the applicable rules and regulation of the Florida Housing Finance Corporation. It is expressly understood and agreed that in the event of curtailment or non-production of said SHIP Program funds, that the financial sources necessary to continue to pay MBCDC compensation hereunder will not be available and that this Agreement will thereby terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, MBCDC agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof, personally for the performance of this Agreement and all parties hereto shall be released from further liability each to the other under the terms of this Agreement. ARTICLE XXX NOTICES All notices shall be sent to the parties at the following addresses, with copies to the Office of the City Attorney: City: Miguell Del Campillo, Housing Director Neighborhood Services Department City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 with copies to: Murray H. Dubbin, City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 MBCDC: Roberto Datorre, President Miami Beach Community Development Corporation 1205 Drexel Avenue Miami Beach, FL 33139 The above parties may change such addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be registered mail, return-receipt requested. 9 IN WITNESS WHEREOF, The parties hereto have caused this Agreement to be executed by their duly authorized official(s), on the day and year first above written. MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION ATTEST: _,CJ~- Secretary ~e'President CITY OF MIAMI BEACH ATTEST: f/J1 Neisen O. Kasdin, Mayor ~f~ City Clerk APPROVI!D AltO FORM & LANGUAGI & FORIXEQI11ON 10 EXHIBIT A OTHER REQUIREMENTS As the City of Miami Beach is providing this funding through state funds, combined with federal funds, all parties agree to comply with the following statutes, regulations and executive orders, as amended, as they apply. These requirements are incorporated herein by reference. I. Freedom of Information and Privacy Acts - Freedom of Information Act (5 U.S.C. 552), and the Privacy Act of 1974 (5 U.S.c. 552a) 2. Equal Opportunity - Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) and 24 CFR Part 1 - Title VITI of the Civil Rights Act of 1968 (42 U.S.C. 3601) - Executive Order 11063, as amended by Executive Order 12259 - Executive Orders 11246, 11265, 12138 and 12432 - Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.c. 170) - Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) - The Age Discrimination Act of 1975 (42 U.S.C. 6101) - The Fair Housing Amendments Act of 1988 3. Environmental Review - The National Environmental Policy Act (42 U.S.c. 4321, et seq) - The Council on Environmental Quality Regulations (40 CFR Parts 1500-1508) - Environmental Review Procedures (24 CFR Part 58) - National Historic Preservation Act of 1966 - National Flood Insurance Act of 1968 as amended by the Flood Disaster Protection Act of 1973 4. Lead Based Paint - Lead Based Paint Poisoning Prevention Act (42 U.S.C. 4801, et seq) - HUD Lead Based Paint Regulations (24 CFR Part 35) 5. Asbestos - Asbestos Regulations (40 CFR 61, Subpart M) - U.S. Department of Labor Occupational Health and Safety (OSHA) Asbestos Regulations (29 CFR 191.\ 101) 6. Handicapped Accessibility - Architectural Barriers Act of 1968 (42 U.S.C. 4151 and 24 CFR Part 41) 7. Labor Standards - The Davis-Bacon Act (40 U.S.c. 276a) as amended - The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333) - Federal Labor Standards Provisions (29 CFR Part 5.5) ADDITIONALLY, ALL PARTIES AGREE TO COMPLY WITH ALL EXISTING FEDERAL, STATE AND LOCAL LAWS AND ORDINANCES HERETO APPLICABLE, AS AMENDED. 11 EXIDBIT B Scope of Services Services to be Provided: MBCDC will provide: rehabilitation services, down payment assistance and/or closing cost assistance to home buyers as part of its Scattered-Site Home Ownership Program for a minimum of 20 dwelling units, in accordance with the attached Sources and Uses of Funds schedule. In addition, MBCDC will provide home ownership counseling to a minimum of 60 families. Expenditure Deadline: MBCDC acknowledges and agrees that all funds provided under this agreement shall be expended, documented and invoiced to the City for FY 2000/2001 funds prior to June 30, 2003 (see attached Schedule of Expenditure). Recapture of Funds: Dwelling units that utilize SHIP funds which are sold to eligible home buyers shall be subject to subsidy recapture provisions which are consistent with those already adopted by the City Local Housing Assistance Plan, adopted April I, 1998. It is the City's intent to allow the homeowner to realize the equity from their home. The period of time SHIP assisted units must remain affordable is in accordance with Chapter 67-37 F.A.C. as applicable, or the term of a HUD insured mortgage, whichever period occurs later. When SHIP funds provided hereunder are combined with HOME funds, the provisions of the HOME Program with regard to the period of affordability will apply. Payment: Payments by the City to MBCDC shall include those eligible costs as follows: Construction Costs, which may include: Actual cost of rehabilitating housing, including: labor and materials necessary to meet the requirements of the South Florida Building Code, the City of Miami Beach Building Codes, and U.S. HUD Section 8 Housing Quality Standards. Current or incipient code violations - improvements to correct violations or conditions which may develop into hazardous conditions or code violations. Good and readily maintainable condition - improvements necessary to put the property and facilities in a condition which requires a minimal amount of maintenance, and when appropriate, improvements to conserve energy. General property improvements - improvements which are in addition to those required by applicable codes and ordinances, but which are incidental to the repairs being done to remedy code violations. These improvements may be considered appropriate, provided they are economically practical and in the public interest. Rehabilitation soft costs, which may include: Architectural - reasonable fees paid for professional services in preparing work write-ups, cost estimates, working drawings and specifications; for supervision, for cost certification; and for other designated tasks. 12 Permit fees - those fees paid to the City's Building Services Division for permits necessary to undertake the work outlined in the application. Construction supervision costs, in an amount equal to 10% of the value of the rehabilitation and .5% of the appraised value of the unit. Down Payment Assistance Closing Costs Assistance Home Ownership Counseling, not to exceed two (2) percent of the SHIP Program funds allocation: FY 2000/200 I $12,820 Required Documentation: For each home buyer assisted with the funds provided hereunder, the following documentation is required to be kept: A copy of the letter of commitment/award to the SHIP recipient. Completed application form, signed and dated, containing income and asset information, and household characteristics, including age of head of household, family size, race, and special needs, if any. The information must be kept in a form acceptable to the City. The combined household annual anticipated gross income of an applicant must be verified and certified using procedures such as those established by U.S. HUD or the Farmers Home Administration. Whichever method is used, annual gross anticipated income must be used and the SHIP income limits cannot be exceeded. Income verification forms for each adult in the household, dated within 120 days of the award date, award letter to recipients should include the requirement to notify the City's SHIP Coordinator immediately of any change in income, assets, or household size occurring between the award letter and closing. A signed affidavit of no income change must be completed, if the closing is mOre than 120 days after the completion of the original income verification. A copy of an appraisal, certified to the lender, dated within 90 days of the closing date, showing a value at least equal to the selling price. A copy of the purchase contract. Letter of commitment or written agreement. Loan closing statement. Lien documentation including the required recapture provisions, executed by the purchaser, and recorded in the public records. A copy of the initial inspection report and work write.up, describing the specific activities to be included in the rehabilitation, and the estimated cost. Copies of bids or proposals from contractors. [At least three, if possible for all work in excess of$500 in value.] A copy of the executed construction contract for the rehabilitation work. [copies of the contractor's license, and proof of insurance should be included.] 13 Copies of initial, interim and final inspection reports. Copies of all construction payment requests. Copies of all partial and final releases of lien or lien waivers Proof of final payment. Copy of the certificate of completion or certificate of occupancy, as appropriate. Summary reports of all meetings with the home buyer, contractor[s] and MBCDC staff. All relevant correspondence. Agn:ememOO-OI.doc 14