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95-21839 Reso 1\ , '. ", RESOLUTION NO. 95-21839 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME) AGREEMENT BETWEEN THE CITY AND THE MIAMI BEACH DEVELOPMENT CORPORATION (MBDC) IN THE AMOUNT OF ONE HUNDRED FIFTY THOUSAND ($150,000) DOLLARS AND WHICH REFLECTS AN AMENDMENT TO THE AGREEMENT BETWEEN THE CITY AND MBDC FOR THE ACQUISITION COSTS OF THE MADISON APARTMENTS WHEREAS. on February 18, 1992, the City of Miami Beach was designated by the U.S. Department of Housing and Urban Development (HUD) as a Participating Jurisdiction to receive funding through the Home Investment Partnerships Program; and WHEREAS, the HOME program is intended to expand the supply of decent and affordable housing and encourages partnerships with the private sector and nonprofit housing providers; and WHEREAS, on April 8, 1993, the Mayor and City Commission approved Resolution No. 93- 20756, designating the Miami Beach Development Corporation (MBDC) as a Community Housing Development Organization (CHDO) and WHEREAS, in accordance with the HOME regulations, the City may provide up to five percent (5%) of its allocation each fiscal year for eligible operating expenses of a CHDO; and WHEREAS, in accordance with the HOME regulations, the City must reserve a minimum of fifteen percent (15%) of each fiscal year HOME allocation for a CHDO set-aside for investment in housing to be developed, sponsored, or owned by Community Housing Development Organizations; and WHEREAS, on July 26, 1995, the Mayor and City Commission approved Resolution No. 95-21670, which adopted the City's Three Year Consolidated Plan and therein specified the 1995 CHDO set-asides; and WHEREAS, the Consolidated Plan targets the distribution of the Fiscal Year 1995 HOME funds for acquisition and rehabilitation of existing multi-family rental housing and home-ownership units; and WHEREAS, the City also has prior year (FY 1992, 1993 and 1994) HOME program funds that are currently uncommitted, and which the City now desires to commit in accordance with the Consolidated Plan; and WHEREAS, on November 17, 1995, the City's Loan Review Committee (LRC) reviewed and approved the attached HOME Program funding Agreement for the Miami Beach Development Corporation (MBDC); and WHEREAS, MBDC and the City now also wish to amend the original Agreement for the Madison Apartments family rental project, as executed on June 29, 1994, to increase the funding amount from Two Hundred Thousand Dollars ($200,000), to Three Hundred Fifty Thousand Dollars .. , , , ($350,000), from federal HOME Investment Partnerships program funds (the Amendment); and WHEREAS, concurrent with the execution of the Amendment, MBDC shall also execute a Restrictive Covenant specifically outlining the restrictions on affordability and resale; 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 hereby authorized to execute the attached Agreement between the City of Miami Beach and the Miami Beach Development Corporation (MBDC) in the amount of One Hundred and Fifty Thousand ($150,000) dollars and which reflects an amendment to the existing agreement between the City and MBDC for the acquisition costs of the Madison Apartments PASSED AND ADOPTED THIS....2!!L DAY OF December, 1995. f:\mbdc\Madison. res FORM APPROVED LEGAL DEP.T. By 1# t;iU-- Date Iz..t (f!9,)' I ---- ATTEST: PROJECT AGREEMENT THIS AGREEMENT, entered into this 6th day ofDecembef1995 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 DEVELOPMENT CORPORATION, a not-for-profit Florida corporation, with offices located at 1205 Drexel Avenue, Miami Beach, Florida (hereinafter referred to as MBDC). WITNESSETH: WHEREAS, the City has been designated by the United States Department of Housing and Urban Development as a participating jurisdiction for the receipt of funds as provided under the HOME Investment Partnerships Program under 24 CFR 92; and WHEREAS, the City has entered into an Agreement with the U.S. Department of Housing and Urban Development under the terms of the HOME Program in order to expand the supply of decent, safe, sanitary and affordable housing within the City, for low and very low income persons; and 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 Mayor and City Commission, by Resolution No. 93-20756, designated MBDC as a qualified Community Housing Development Organization under the HOME Investment Partnerships Program; and WHEREAS, MBDC certifies that it possesses the legal authority to enter into this Agreement, by way of a resolution, motion, or similar action that has been duly adopted or passed as an official act of the MBDC governing body, authorizing the execution of this Agreement, including all understandings and assurances contained herein, and authorizing the person identified as the official representative of MBDC to act in connection with this Agreement and to provide such additional information as may be required. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings: (a) HOME: HOME Investment Partnerships Program, 24 CFR 92, as amended. (b) HUD: United States Department of Housing and Urban Development. (c) CHDO: Community Housing Development Organization as defined in the HOME 1 Investment Partnerships Program, 24 CFR Part 92, as amended, and CPD Notice 94-02. (d) Funds: HOME Program funds. (e) Terms defined in the HOME Investment Partnerships Program Consolidated Interim Rule, 24 CFR Part 92, July 12, 1995, and any amendments thereto: Any term defined in the HOME Investment Partnerships Program rule, not otherwise defined in this Agreement, shall have the meaning set forth in said rule. ARTICLE II BUDGI;T AND SCOPI; OF SI;RVICI;S MBDC agrees to implement a Rental Housing Program in accordance with the Scope of Services (Exhibit A) and Budget (Exhibit B). attached hereto. ARTICLE III PROGRAM INCOMI; MBDC agrees that any program income generated from the use of HOME funds under this Agreement, after making all debt repayments to the City (or other lender) if any, is to be used by MBDC to further other affordable housing activities. ARTICLE IV SPI;CIAl PROVISIONS APPlICABll; TO FUNDS PROVIDI;D UNOI;R THI; HOMI; PROGRAM MBDC expressly agrees to the following terms and conditions in conformity with 24 CFR Part 92: (a) Affordability Period. The period of time HOME assisted units must remain affordable is in accordance with 24 CFR 92.252 or 24 CFR 92.254 as applicable, or the term of a HUD insured mortgage, whichever period occurs later. The funds, in accordance with the Scope of Services (Exhibit A) and Budget (Exhibit B). shall be repaid to the City in the event the housing does not meet the affordability requirements for the specified time period in accordance with 24 CFR Part 92.503(b). (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 HOME units do not meet the afford ability requirements for the specified time period, in accordance with the terms of this Agreement and the Regulations. Any violation of the affordability requirements may, at the City's option, result in the entire amount of the Funds, as indicated in Article II or as subsequently amended or modified, to be returned and/or otherwise repaid by MBDC to the City. The City reserves the right to review the affordability requirements, as set forth herein. Concurrent with its execution of this Agreement and/or any projects pursuant to this Agreement, MBDC shall execute a Restrictive Covenant incorporating the terms of this section. (c) Rent Limitation. HOME assisted rental units will bear rents in accordance with 24 CFR 92.252. 2 (d) Rent schedule and utiUty allowances. In accordance with 24 CFR 92.252(b)(c) and (d), the City must review and approve rents and the monthly utility allowances proposed by the owner prior to initial occupancy. MBDC must reexamine and document the income of each tenant living in the HOME assisted units at least annually. The maximum monthly rent must be recalculated by MBDC and reviewed and approved by the City annually. (e) MBDC shall comply with all applicable federal regulations as they may apply to restrictions and limitations regarding real property under MBDC's control acquired or improved in whole or in part with HOME funds. The Funds shall be subject to all of the terms and conditions of the HOME Program, 24 CFR Part 92, and any amendments thereto. (f) Projects must provide safe, sanitary, and decent residential housing for low-income and very low-income persons (i.e., a person whose income is within specific income levels set forth by U.S. HUD). (g) Income Targeting. MBDC shall maintain written documentation that conclusively demonstrates that each project assisted in whole or in part with HOME 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) as determined by HUD. Specific income targeting requirements are specified the Scope of Services (Exhibits A), attached hereto. (h) MBDC shall maintain a financial management system that conforms to the financial accountability standards of Attachment F of OMB Circular A-110. (i) Records: MBDC shall maintain all records sufficient to meet the requirements of 24 CFR 92.508(a)(2) program records, 92.508(a)(3) project records, 92.508(a)(5) other Federal requirements records, 92.508(a)(6) program administration records. All records required herein shall be retained and made accessible as provided in 24 CFR 92.508 (c) and (d) and Florida Statutes Chapter 119. (j) Property Standards. For the duration of this Agreement and any amendments hereto, housing that is assisted with HOME funds, at a minimum, must meet the Housing Quality Standards of Section 882.109 of this title. In addition, housing that is newly constructed or substantially rehabilitated with HOME funds must meet all applicable local codes, rehabilitation standards, ordinances, and zoning ordinances. Newly constructed housing must meet the current edition of the Model Energy Code published by the Council of American Building Officials. Substantially rehabilitated housing must meet the cost effective energy conservation and effectiveness standards in 24 CFR part 39. The owner of rental housing assisted with HOME funds will maintain the housing in compliance with the applicable Housing Quality Standards and local housing code requirements for the duration of this agreement and any amendments hereto. The City shall conduct annual or bi-annual, as required, on site inspections of rental projects to determine compliance with housing codes (k) Maximum and Minimum Amount of HOME Subsidy Per Unit. The minimum amount of HOME funds that can be invested is $1,000 times the number of HOME assisted units, and the maximum amount of HOME subsidy is limited to the amounts listed in Exhibit C. The number of HOME units to be provided for each project or activity are specified in the Scope of 3 Services (Exhibit A), attached hereto. (I) Environmental Clearance. For each activity or project described in the Scope of Services (Exhibit A), attached hereto, for which a location has not yet been identified, immediately after a site is identified by MBDC, MBDC shall obtain the City's written environmental clearance statement and shall agree in writing to comply with any and all requirements as may be set forth in the Site Environmental Clearance Statement. (m) Affirmative Marketing. MBDC agrees to adopt affirmative marketing procedures and requirements, in writing, for HOME-assisted housing containing five or more housing units as set forth in 24 CFR 92.351. (n) CHDO Capabilities. MBDC, as a CHDO, agrees to either develop, sponsor or own the HOME assisted projects and in any of these capacities it must have effective management control. (0) Change in Status: MBDC agrees to advise the City in writing within thirty (30) days of any organizational, operational, or legal status changes made by MBDC that affect documents that were submitted by MBDC to obtain CHDO status. (p) Tenant and Participant Protections. MBDC agrees that the lease to be executed with the tenants of rental housing must be in accordance with 24 CFR 92.253. MBDC agrees to adhere to and develop a fair lease and grievance procedure which will provide a plan for and follow a program of tenant participation in management decisions, to be submitted to the City for approval, no later than 60 days from the date of this Agreement. (q) Religious organizations. HOME funds may not be provided to primarily religious organizations, such as churches, for any activity including secular activities. In addition, HOME funds may not be used to rehabilitate or construct housing owned by primarily religious organizations or to assist primarily religious organizations in acquiring housing (r) Affordable housing: homeownership. 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 95% of the median purchase price for the type of single-family housing for the City of Miami Beach, currently $112,350, and subject to change as determined by HUD; is the principal residence of an owner whose family qualifies as low- income at the time of purchase; is subject to resale restrictions or recapture provisions established by the City for the required period of affordability. ARTICLE V I;UGlBLI; CO~TS MBDC agrees that eligible costs for the projects under this Agreement are limited to those eligible costs as outlined in 24 CFR 92.206 of the HOME Program regulations. 4 , ARTICLE VI METHOD OF PAYMENT (1) MBDC shall be paid for eligible costs, permitted under the Scope of Services (Exhibit A) and Budget (Exhibit B) based on anticipated or actual costs. with supportive documentation for expenses that are considered reasonable and necessary and approved by MBDC's authorized representative. (2) Any payment due under the terms of this Agreement may be withheld pending the receipt and approval by the City of all reports and documents which MBDC is required to submit to the City pursuant to the terms of this Agreement or any amendments thereto. (3) No payments will be made without evidence of appropriate insurance required by this Agreement. Such evidence must be on file with the City. (4) MBDC understands and agrees that disbursement request of funds under this Agreement are only to be requested when the funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. (5) The City desires to enter into this Agreement only if in so doing it can retain the right of approval over the disbursement of HOME funds for the individual real estate transactions contemplated herein. MBDC shall be required to submit all necessary documentation relative to the aforestated transactions to the City's Housing and Community Development Division for review thirty (30) days prior to the disbursement of HOME funds for the individual transactions. (6) Cancellations of projects or site transactions with disbursements: If a project or site transaction is cancelled, whether voluntarily by MBDC or otherwise, an amount equal to the HOME funds disbursed by the City for the transaction. must be repaid to the City. The City shall be immediately notified. in writing. of a project or site cancellation and all funds disbursed by the City shall be repaid to the City within 15 days of the date of project or site cancellation. ARTICLE VII SUBCONTRACTS (a) MBDC agrees that none of the work or services covered by this Agreement. including but not limited to consultant work or services, shall be subcontracted or reimbursed without the prior written approval of the City. (bl MBDC agrees to include in the subcontract that the subcontractor shall hold the City harmless against all claims of whatever nature arising out of the subcontractor's performance of work under this Agreement to the extent allowed by law. (c) If MBDC subcontracts. a copy of the executed subcontract must be forwarded to the City within ten (10) days after execution. 5 ARTICLE VIII CONDITIONS OF SERVICES (a) As a condition of these services, MBDC agrees to comply with the regulations of the HOME Program and any Amendments thereto as stated in 24 CFR Part 92. (b) MBDC agrees to comply with the requirements of Executive Orders 11625 and 12432 concerning Minority Business Enterprise and 12138 Women's Business Enterprise which encourage the use of minority and women's business enterprises in connection with HOME- funded activities. (c) MBDC agrees to abide by and comply with the requirements under Section 1352, Title 31, U.S. Code regarding Lobbying. (d) MBDC agrees to abide by and comply with the requirements of 24 CFR Part 24, regarding debarment and suspension, which in part states that neither it or its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this covered transaction in any proposal submitted in connection with the lower tier transactions. (e) MBDC must comply with the Displacement, Relocation, and Acquisition requirements in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4201-4655) and 49 CFR Part 24. (f) MBDC agrees to abide by and be governed by the Equal Opportunity and Fair Housing laws: (1) Equal Opportunity: No person in the United States shall on the grounds of race, color, national origin, religion, disability or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with HOME funds. (2) Fair Housing Act (42 U.S.C. 3601-20) and implementing regulations at 24 CFR Part 100, Executive Order 11063, as amended by Executive Order 12259 (3 CFR 1958-1963 Comp., P 307) Equal Opportunity in Housing and Implementing regulations at 24 CFR Part 107 and Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) Non Discrimination in Federally Assisted Programs and implementing regulations issued at 24 CFR Part I; (3) The prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-07) and implementing regulations of 24 CFR Part 146, and the prohibitions against disabled individuals under the Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR Part 8 and Title II of the American with Disabilities Act, Public Law 101-336; (4) The requirements of Executive Order 11246 (3 CFR 1964-65, Comp., P339) Equal Opportunity and the implementing regulations issued at (4 CFR Chapter 60); (5) The requirements of Section 3 of the Housing and Urban Development Act of 1968 6 . (12 U.S.C. 1701u) the purpose of which is to insure that the employment and other economic opportunities generated by Federal financial assistance for housing and community development programs shall, to the greatest extent feasible, be directed toward low- and very-low income persons, particularly those who are recipients of government assistance for housing. (g) Housing assisted with HOME funds constitutes HUD-associated housing for the purpose of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.) and is, therefore, subject to 24 CFR 35. MBDC shall be responsible for testing and abatement activities. (h) MBDC must comply with the Federal Labor Standards Provisions, as described in HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community Development Programs), as applicable. ARTICLE IX TERM OF AGREEMENT This Agreement shall be effective upon execution by both parties and shall end at the conclusion of the period of afford ability as specified in 24 CFR 92.252 (affordable rental housing), or 92.254 (affordable homeownership housing), as applicable. ARTICLE X TERMINATION The City and MBDC agree that this Agreement may be terminated in whole or in part, for cause (as more specifically defined in Article XXVI herein) or for convenience, in accordance with the provisions of 24 CFR, Part 85.44. A written notification shall be required 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 produced in 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 Administration and MBDC. ARTICLE XII CONFLICT OF INTEREST (a) MBDe shall comply with the standards contained within 24 CFR Part 92.356(2). (b) MBDC shall disclose any possible conflicts of interest or apparent improprieties of any party 7 that is covered by the above standards. MBDC shall make such disclosure in writing to the City immediately upon MBDC's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) RAlatAd PartiA~ MBDC 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, a for-profit subsidiary or affiliate organization, an organization with overlapping boards of directors, and an organization for which MBDC is responsible for appointing memberships. MBDC 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 to the City required Progress Report. ARTICLE XIII INDEMNIFICA TION AND INSURANCE MBDC, through an insurance carrier, shall indemnify and hold harmless the City from any and all claims, liabilities, losses, and causes of action which may arise out of an act, omission, negligence or misconduct on the part of MBDC or any other person entering upon MBDCs place of business. MBDC, through its insurance carrier, 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. MBDC, through an insurance carrier, shall provide a General Liability Policy with coverage for Bodily Injury and Property Damage, in the amount of $500,000 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." MBDC shall hold proof of Workers' Compensation Coverage as per statutory limits of the State of Florida. Automobile and vehicle coverage shall be required when the use of automobiles and other vehicles are involved in any way in the performance of the Agreement. MBDC 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 (1) PrngrA~~ RApnrts. MBDC agrees to submit monthly progress reports to the City, describing the status of each project and achievement of the project objectives as provided 8 herein and in the Scope of Services (Exhibit A), attached hereto. The progress reports shall be submitted no later than 10 days after the end of each month until such time as all funds are expended or, for rental projects, until the project is fully occupied. It will be the responsibility of MBDC to notify the City in writing, of any actions, 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. (2) TAnant and RAnt !=ir.hAdIlIA r.Artifir.atinn a. MBDC shall submit to the City for approval the proposed rents for the HOME units and, if applicable, the monthly allowances for utilities and services to be paid by the tenant. b. MBDC shall provide the City with the initial tenant list, and any and all subsequent updates, amendments and modifications thereto, with documentation for all tenants in the HOME units confirming family size, income, financial classification, ethnicity, and the amount of the HOME rent. This report will continue to be required for the full period of affordability hereunder, beginning on the date of issuance of a Final Certification of Occupancy for the project. c. Annually, MBDC shall deliver to the City's Housing and Community Development Division, by November 1st of each calendar year, its signed report in form and substance acceptable to the City, to include names of tenants, unit type, family size ana income, rents charged, and occupancy/vacancy factor of each unit for the prior fiscal year (October 1 st through September 30th). The report will continued to be required for the full period of affordability hereunder beginning on the date of issuance of a Final Certificate of Occupancy for the project. (3) Other reports as may be required by the City to demonstrate compliance with any of the terms of this Agreement. If the required reports described above are not submitted to the City or are not completed in the manner acceptable to the City, the City may withhold further payments until they are completed or may take any other action as the City may deem appropriate. ARTICLE XV AIIDIT AND INSPECTIONS At any time during normal business hours and as often as the City administration and/or the comptroller of the United States may deem necessary, there shall be made available to the City administration and/or representatives of the comptroller 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 a monitoring, the City determines that any payments made to MBDC do not constitute an allowable expenditure, the City will have the right to deduct/reduce those amounts from their 9 related invoices. MBDC must maintain records necessary to document compliance with the provisions of this Agreement. ARTICLE XVI C:OMPlIANCI! WITH LOCAL STATI! AND FI!DI!RAL RI!GIJLATIONS MBDC agrees to comply with all applicable Federal regulations as they may apply to program administration. Additionally, MBDC will comply with all State and local laws and ordinances hereto applicable. ARTICLE XVII ADDITIONAL CONDITIONS (a) It is expressly understood and agreed by the parties hereto that moneys contemplated by this Agreement, to be used for the compensation, originated from grants under the HOME Program and is contingent upon approval of activities by the United States Department of Housing and Urban Development. (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 rule. (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 XVIII ACCI!SS TO RECORDS MBDC, agrees to allow access during normal business hours to all financial records to authorized Federal, State or City representatives and agrees to provide such assistance as may be necessary to facilitate financial audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and financial standards. MBDC 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. 10 ARTICLE XX PRO II;CT PUBlICITV MBDC 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 United States Department of Housing and Urban Development administered by the Housing and Community Development Division of the Development, Design and Historic Preservation Services Department and the entity which provided funds for the Project. ARTICLE XXI DRUG/ALCOHOL MBDC agrees to administer in good faith, a policy to ensure that MBDC complies with the Drug-Free Workplace Act required under 24 CFR Part 24, Subpart F and will establish a policy to ensure that it's assisted projects are free from illegal use, possession or distribution of drugs or alcohol by it's beneficiaries. ARTICLE XXII NONDI;LI;GABLI; MBDC agrees that the obligations undertaken pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. ARTICLE XXIII SIICCt=~~ORS AND ASSIGNS MBDe agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXIV INDI;PI;NDI;NT CONTRACTOR MBDC 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 he/she shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXV A~~IGNMI;NT This Agreement may not be assigned or transferred by MBDC without the prior written consent of the City thereto. It shall be deemed a default of this Agreement in the event that MBDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Paragraph. 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 the defaulting party. In the 11 event the Provider transfers an interest of more than one (1 %) percent ownership in its stock by pledge, sale, or otherwise; or if MBDC makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if the Provider 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 receivership for MBDC, shall be deemed an assignment of this Agreement and will require the prior written consent of the City thereto. ARTICLE XXVI EVENTS OF DEFAULT The City may place MBDC 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 Federal, 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 MBDC; (e) 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 HUD rules and regulations; (f) MBDC'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 in Article XXIX herein; (h) Failure to comply and/or perform in accordance with the affordability requirements, and/or an unauthorized transfer of title to it's HOME Projects. In the event of a default the City may, thirty (30) days after mailing to MBDC a notice of such default as set forth herein, automatically cancel and terminate this Agreement without liability to any party to this Agreement. If the default complained of is not fully and satisfactorily cured within thirty (30) days of MBDCs' receipt of such notice of default to MBDC, at the expiration of said thirty (30) day period (or such additional period of time (as 12 permitted by the City, in its sole discretion) as required to cure such default in the event MBDC 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 XXVII ADDITIONAL RI;M~DII;S 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 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 XXVIII MAINTFNANCI; AND RI;TI;NTION OF RI;CORDS MBDC agrees that it will maintain all records required pursuant to 24 CFR Part 92, in an orderly fashion in a readily accessible, permanent and secured location, and that it will prepare and submit all reports necessary to assist the City in meeting record keeping and reporting requirements thereunder. (1) Records shall be maintained for a period of four (4) years after the closeout of funds under this Agreement except as provided herein (2), (3) and (4). (2) 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 (1), whichever is later; (3) 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; (4) Records covering displacements and acquisition must be retained for at least three years after the date by which the persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled in accordance with 24 CFR 92.353. ARTICLE XXIX 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 $350,000,. MBDC hereby expresses its willingness to enter into this Agreement with MBDCs 13 recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $350,000. Accordingly, and notwithstanding any other term or condition of this Agreement, MBDC hereby agrees that the City shall not be liable to MBDC for damages in an amount in excess of $350,000, 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 XXX ARBITRATION Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matter related thereto. In that regard, the parties shall mutually select an arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgement upon the award rendered may be entered into any court having jurisdiction, or application maybe made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach thereof, including any controversy or claim relating to the right to specific performance shall be settled by litigation and not arbitration. ARTICLE XXXI 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 compensation, originated from grants of federal HOME Investment Partnerships Program funds, and must be implemented with all of the applicable rules and regulation of the U.S. Department of Housing and Urban Development. It is expressly understood and agreed that in the event of curtailment or non-production of said federal grant funds, that the financial sources necessary to continue to pay the Provider compensation 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, MBDC 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 XXXII ACCESSIBILITY I AWS COMPLIANCE MBDC agrees to adhere to and be governed by all applicable requirements of the laws listed below including, but not limited to, those provisions pertaining to employment, provision of programs and services, transportation, communications, access to facilities, renovations, and new construction: 14 The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101-336, 104 Stat 327, 42 U.S.C. 12101-12213 and 547 U.S.C. Sections 225 and 611 including Title I, Employment; Title II, Public Services; Title III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S.C. Section 794. The Federal Transit Act, as amended: 49 U.S.C. Section 1612. The Fair Housing Act as amended: 42 U.S.C. Section 3601-3631. MBDC must complete and submit the City's Disability Non-Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated herein as Exhibit D. In the event MBDC fails to execute the City's Affidavit, or is found to be in non-compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to MBDC under the Agreement until compliance and/or cancellation, termination or suspension of the Agreement in whole or in part. In the event the City cancels or terminates the Agreement pursuant to this Article, MBDC shall not be relieved of liability to the City for damages sustained by the City by virtue of MBDC's breach of the Agreement. ARTICLE XXXIII NOTICES All notices shall be sent to the parties at the following addresses, with copies to the Office of the City Attorney: City: Shirley Taylor-Prakelt, Director Housing and Community Development City of Miami Beach 1 700 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 MBDC: Denis Russ, President Miami Beach Development Corporation 1205 Drexel Avenue Miami Beach, FL 33139 15 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. IN WITNESS WHEREOF, MBDC has caused this Agreement to be executed by its duly authorized official(s), and the City has caused this Agreement to be executed by its duly authorized officer(s). the day and year first above written. MIAMI BEACH DEVELOPM A FLORIDA NOT -FOR- F:\WlNlMBDC\9SMADIS.AGR FORM APPROVf.:D LEGAL D~ By 11 1ft~A, , Date '0~/'} 5 ATTEST w~ !/'ty Clerk 16 EXHffirr A SCOPE OF SERVICES THE MADISON APARTMENTS In accordance with the attached revisions of the development budget, project information and operating pro-forma, the Agreement between the City and the Miami Beach Development Corporation, dated June 29, 1994 (attached), providing HOME funds for the acquisition of The Madison Apartments, a 3-story building at 259 Washington Avenue, Miami Beach, Florida, is herein amended to provide for increased funding, and for a Restrictive Covenant reflecting such funds. The Agreement is amended as follows: 1. Section 1., page 3, first paragraph. The City herein agrees to allocate HOME funds to MBDC in the amount of a Three Hundred Fifty Thousand Dollar ($350,000) grant (the Funds); to be used by MBDC toward the acquisition of a 3-story building at 259 Washington Avenue, Miami Beach, Florida. MBDC will rehabilitate and reconfigure the building to provide seventeen (17) HOME-assisted units of rental housing consisting offour (4) efficiency apartments, three (3) one-bedroom apartments, seven (7) two-bedroom apartments and three (3) three-bedroom apartments (the Project). Nmety percent (90%) of the HOME units shall initially be occupied by families who have annual incomes that are 60% of the area median income or less. In addition, at least 20% of the HOME units must be occupied by tenants with incomes that are 50% or less of the median income throughout the period of affordability. These very low income tenants must occupy the units with the very low rents. The balance of the units may be occupied by tenants with annual incomes between 60% and 80% of median. 2. Section 21 (Limitation of Liability), page 19, is amended as follows: 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 alleged breach by the City ofthis Agreement, so that its liability for any such breach never exceeds the sum of $350,000. LESSEE hereby expresses its willingness to enter into this Agreement with LESSEE'S recovery from the City for any damage action for breach of contract to be limited to a maximium amount of $350,000. Accordingly, and notwithstanding any other term or condition of this Agreement, LESSEE hereby agrees that the City shall not be liable to the LESSEE for damages in an amount in excess of$350,00, for any action or claim for breach of contract arising out of the performance or non-performance of any obligation 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 City's liability as set forth in Florida Statutes, Section 768.28. 17 AMENDMENT TO AGREEMENT This Amendment to Agreement (the "Amendment") is made as of the day of November, 1995, by and between the City of Miami Beach, a Florida municipal corporation (the "City"), having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, Miami Beach Development Corporation, Inc., a Florida corporation ("MBDC"), having its principal office at 1205 Drexel Avenue, Miami Beach, Florida and M.B. Apartments Associates, Ltd., a Florida Limited partnership (the "Partnership"), having its principal office at 1205 Drexel Avenue, Miami Beach, Florida. Recitals A. The City and MBDC entered into that certain Agreement dated June 29, 1994, pursuant to which the City agreed to allocate HOME funds to MBDC in an amount equal to TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) (the "HOME Grant") for the purpose of MBDC's acquisition of the Madison Apartments project located at 259 Washington Avenue, Miami Beach, Florida, as more particularly described on Exhibit "A" attached hereto (the "Project"). B. The City advanced the proceeds of the HOME Grant to MBDC on or about June 29, 1994 to assist in MBDC's acquisition of the Property. C. In furtherance of the Agreement and the rehabilitation and development of the Property, MBDC has formed the Partnership for the purpose of renovating, developing and operating the Project. MBDC, through its wholly-owned affiliate M.B. Apartments, Inc., a Florida corporation, is the sole general partner of the Partnership. D. MBDC desires to transfer the Property to the Partnership to facilitate the development of the Property; Section 16 of the Agreement provides that MBDC will obtain the consent of the City prior to any transfer of the Property. E. The City, MBDC and the Partnership now desire to enter into this Amendment in order (i) to acknowledge that the Partnership is the recipient of the HOME Grant, (ii) consent to the transfer of the Property from MBDC to the Partnership, (iii) to acknowledge and consent to certain modifications to the Agreement and (iv) to expressly effectuate the assumption, by the Partnership, of the rights, duties and obligations of MBDC under the Agreement. AGREEMENT NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City, MBDC and MBAA, Ltd., hereby agree as follows: 1. Recitals. The above Recitals are true and correct and by this reference are incorporated as if fully set forth herein. 2. MBDC as General Partner for the Partnership; Allocation of HOME funds It is hereby agreed that the grant to MBDC of the HOME Grant shall be deemed to be an allocation of the HOME Grant funds to the Partnership. -2- 3. Assumption. The Partnership hereby assumes all of the rights, duties and obligations of MBDC under the Agreement and agrees to observe, comply with and perform all terms, covenants and conditions of the Agreement. The Partnership also acknowledges the binding nature of that certain Restrictive Covenant executed by MBDC and recorded in the public records of Dade County, Florida, as same may be modified or amended. The Partnership hereby confirms that the Agreement is the valid and binding obligation of the Partnership. 4. Consent to Transfer. The City hereby consents to the transfer of the Property from MBDC to the Partnership in furtherance of the purposes of the Agreement. s. Distribution of Units. Section One of the Agreement is hereby modified to provide that the rehabilitation and reconfiguration of the building shall provide affordable rental housing consisting of 4 studio apartments, 3 one-bedroom apartments, 7 two-bedroom apartments and 3 three-bedroom apartments. 6. Conflict. In the event of any conflict between the terms and conditions of the Agreement and the terms and conditions of this Amendment, the terms and Conditions of this Amendment shall control. -3 - IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the day and year first above written. Signed, sealed and delivered in the presence of: MIAMI BEACH DEVELOPMENT CORPORATION, INC. By: Name: Title: AYJ;;:J ~ ~aCk Lubin, City Clerk M. B. APAR'IMENTS ASSOCIATES, LTD. By: M.B. Apartments, Inc, its sole general partner By: Name: Title: G,\H-PKG\33867\004\AGRE-AMD -4- AMENDMENT TO RESTRICTIVE COVENANT iii is Amendment to Restrictive Covenant is dated this I,-a... Of~, 1995. ~~ day WIT N E SSE T H WHEREAS, Miami Beach Development Corporation, Inc., a Florida corporation (the "Owner") executed a Restrictive Covenant in favor of the City of Miami Beach, Florida (the "City"), dated June 30, 1994, and recorded on July 7, 1994, in Official Records Book 16428, at Page 2182, of the Public Records of Dade County, Florida (the "Restrictive Covenant") encumbering the property described on Exhibit "A" attached hereto and made a part hereof (the "Property"); and WHEREAS, Owner is the owner of all of the Property which is subject to the Restrictive Covenant; and WHEREAS, the Owner, with the consent of the City as evidenced below, desires to amend the Restrictive Covenant so that the Restrictive Covenant shall be subordinate and inferior to any first mortgage which shall now or hereafter encumber the Property. NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby amends the Restrictive Covenant as follows: . 1. Paragraph d. appearing on page 2 of the Restrictive Covenant is hereby deleted and the following substituted therefor: "This Restrictive Covenant is and shall be subordinate to any first mortgage which may now or hereafter encumber the Property. In the event of a foreclosure and sale of the Property or receipt of a deed in lieu of foreclosure pursuant to a default under any such first mortgage, this Restrictive Covenant shall be null and void and of no further force and effect." 2. Except as heretofore modified and amended, or condition of the Restrictive Covenant shall be modified Restrictive Covenant remains in full force and effect ratified and confirmed in all respects. no term and the and is IN WITNESS WHEREOF, the undersigned has executed this Amendment to Restrictive Covenant on the day first written above. WITNESSES: OWNER: MIAMI BEACH DEVELOPMENT CORPORATION, INC., a Florida corporation ~~ Russ, President By: Address: 1205 Drexel Avenue Miami Beach, FL 33139 STATE OF FLORIDA SS: COUNTY OF DADE The~O~g instrument was acknowledged before me this t~ day of ~!' , 1995, by Denis A. Russ, as President of Miami Beach Development Corporation, Inc., a Florida corporation, on behalf of the corporation. X. Personally Known OR Produced Identification Type of Identification Produced ~m~. Print or Stamp Name: -TV D 111+ /LS; It A- LL- Notary Public, State of Florida at Large Commission No.: C!.L!. 'I- tf(P f';}, My Commission Expires: ~ -;;;21-71 JUDITH MARSHAlL MY COMMISSIOI~ , CC 448852 EXPIRES: April 28, 1999 80_ Thl1J Notmy Public Un_IS G,\W-BJM\34447\OOl\AMD-REST -2- CONSENT BY CITY OF MIAMI BEACH The undersigned the City of Miami Beach, Florida (the "City") , does hereby acknowledge and consent to the foregoing Amendment to Restrictive Covenant amending that certain Restrictive Covenant in favor of the City, dated June 30, 1994, and recorded on July 7, 1994, in Official Records Book 16428, at Page 2182, of the Public Records of Dade County, Florida. IN WITNESS WHEREOF, day of December , 1995. STATE OF FLORIDA COUNTY OF DADE been executed this ~ Address: City Hall 1700 Convention Center Drive Miami Beach, Florida 33139 S8: The foregoing instrument was acknowledged before me this 1.3 day of December 1995 by SEYMo/J1\, C6t..AI&Il., as rlllYo R of the City of Miami Beach, Florida, on behalf of the City. Personally Known ~ ~O OR Produced Identification Type of Identification Produced 'JA"I< Lv81N Print or Stamp Name: Notary Public, State of Florida at Large Commission No. : My Commission Expires: JACK \.U8IN MY COMMISSION * CC 512228 EXPIRES: November 28. 1999 Bonded T1lIv NoIIrY PublIc UndI_ G,\W_BJM\J4447\OOl\AMD-REST -3- EXHIBIT "A" LEGAL DESCRIPTION Lot 16, Block 8 of OCEAN BEACH SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 2, Page 38, of the Public Records of Dade County, Florida. -4- ( AGREEMENT tb THIS AGREEMENT, entered into this ~~ day of ~, 1994, and between the CITY OF MIAMI BEACH, a Flo~ida municipal by corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, hereinafter referred to as the "City", and the MIAMI BEACH DEVELOPMENT CORPORATION, a Florida not-for- profit corporation, having its principal office at 1205 Drexel Avenue, Miami Beach, Florida, hereinafter referred to as "MBDC". WITNESSETH: WHEREAS, the U.S. Department of Housing and Urban Development (HUD) has issued rules providing for the utilization of Federal funds in the provision of affordable housing for low and moderate ~ncome persons under the HOME Investment Partnerships Act (Act); and WHEREAS, the Act provides that certain qualifying non-profit organizations may be designated as "community Housing Development Organizations" (CHDO), and further provides that 15% of the entitlement funds received by the city thereunder be reserved for use by such CHDO's; and WHEREAS, the City has established a HOME Investment Partners Program (Program) under the HUO rules, which provides financial assistance to CHOO'S which own, sponsor or develop rental property for the purpose of providing affordable housing units within the city; and WHEREAS, the Mayor and City commission, by Resolution No. 93~20756, designated MBOC as a qualified CHOO; and WHEREAS, the Mayor and city commission, by Resolution No. 93-20860, reserved certain funds for MBOC's CHOO activities, and further, by Resolution No. 93-21145, provided that the site, project and transaction approvals are subject to review, in writing, by the city Manager or his designee; and WHEREAS, MBOC, acting as a CHOO, seeks to acquire a building located at 259 Washington Avenue, Miami Beach, Florida and rehabilitate the property to provide affordable rental housing in accordance with the rules of the Act (the Project); and WHEREAS I it is acknowledged and agreed that funds to be granted to MBOC to be utilized for the Project derive from Federal funds appropriated to the city by HUO, for the uses and purposes herein referred to and, accordingly, it is acknowledged and agreed that the aforestated Agreement is entered into after compliance by 2 the parties with all applicable provisions of Federal, state and local laws, statutes, rules and regulations. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties do agree as follows: 1. The city herein agrees to allocate HOME funds to MBDC in the amount of a Two Hundred Thousand Dollar ($200,000.00) grant (the Funds); to be used by MBDC toward the acquisition of a 3-story building at 259 Washington Avenue, Miami Beach, Florida. MBDC has also proposed to rehabilitate and reconfigure the building to provide affordable rental housing consisting of fourteen (14) two-bedroom apartments and four (4) three-bedroom apartments (the Project) . 2. The city is responsible for ensuring that the Funds are used in accordance with Program requirements, as outlined in the HOME Regulations (the Regulations), which are attached hereto and incorporated herein as Exhibit "A". As a condition precedent to the execution of this Agreement, MBDC herein represents and warrants to the city that it is knowledgeable of, and also independently receives copies of, said HOME Regulations, as same may be amended from time to time. Additionally, MBDC also warrants and represents to the city at the time of execution of this Agreement, that it is in compliance with any and all applicable HOME Regulations, and 3 shall remain in compliance with such Regulations throughout the term and duration of this Agreement. In the event of a conflict between the terms of this Agreement and the HOME Regulations, the provisions of the applicable HOME Regulations shall prevail. 3. It is herein understood by MBDC that, as a condition to the City's allocation of the Funds to MBDC, MBDC covenants that a percentage of the dwelling units provided by the Project will comply with all affordability requirements as set forth in 24 CFR Part 92.252; and such requirements shall run with the Project for a period of fifteen (15) years from the date of receipt of a Final certificate of occupancy for the Project. The percentage of the Project dwelling units to be so restricted by said affordability requirements shall be determined by the City at such time as MBDC has presented to the City, and the City has so approved, the total cost(s) to be expended for the Project. Such "Total Project Cost" shall include, but not be limited to, the cost of acquisition, as set forth in the allocation of Funds herein; construction; rehabilitation; any soft costs; and any and all other costs as shall be necessary for the Project to obtain a Final certif icate of Occupancy. As the Funds set currently forth in this Agreement are only contemplated at this time for acquisition of the Project, the parties herein agree that this 4 Agreement shall be amended once the Total Project Cost has been determined by the parties, and approved by the City. The Funds, as provided in Paragraph 1, and as same may be amended to include the allocation of any additional funds that may be provided in the future as a result of an amendment or modification to this Agreement, shall be repaid in their entirety if the housing to be provided does not meet the affordability requirements for the specified time period, as provided herein. This Agreement shall remain in full force and effect during the period of affordability (i.e. fifteen (15) years from the date of issuance of a Final certificate of Occupancy for the Project). Any violation of the affordability requirement may, at the city's option, result in the entire amount of the Funds, as indicated in Paragraph 1 or as subsequently amended or modified, to be returned and/or otherwise repaid by MBDC to the City. MBDC must obtain the prlor written consent of the Mayor and city commission prior to the resale or transfer of the Project. The city reserves the right to review compliance with all affordability requirements, as set forth h~rein. In the event of an approved resale or transfer of the Project, as 5 set forth above, the City herein further reserves the right of first refusal to purchase the Project, prior to the Project being offered for sale. In the event of a transfer of title without prior written consent, as same is set forth above, and prior to the end of the fifteen (15) year period of affordability, the full amount of the Funds provided to MBDC for the Project, pursuant to this Agreement, including any increased amount(s) as a result of any modifications and amendments thereto, shall be repaid to the city, subject to the limitations set forth in 24 CFR Part 92, and may, at such time, be used by the City for additional eligible activities. Concurrent with its execution of this Agreement, MBDC shall also execute a Restrictive Covenant, a copy of which is attached hereto and incorporated herein as Exhibit "B", specifically outlining the restrictions on affordability and resale. 4. MBDC shall comply with all Uniform Administrative Requirements, as provided in 24 CFR Part 92.505, and as same may be amended. As a qualifying non-profit organization receiving HOME funds, MBDC must also comply with the requirements of OMB Circular A-122 and the following parts of OMB Circular A-110, which apply: Attachment Bi Attachment Fi Attachment H, Paragraph 2i and Attachment Oi all as may be 6 amended from time to time. (Two free copies of these OMB Circulars may be obtained from E.O.P. publications, Room 2200, New Executive Office Building, Washington, D.C. 20503.) 5. MBDC shall certify to the City at the time of rental or leasing of each dwelling unit within the Project (and each time thereafter, as to all subsequent rentals or leases within the Project) : a. that each unit is ln compliance with applicable HUD housing quality standards and the City I s Housing Code requirements; b. that all tenants eligible for occupancy within the Project are to be provided with leases of at least twelve (12)months in duration; c. that it has ensured, through a separate individual agreement with the tenant, if it so deems necessary, that each tenant has agreed to maintain his apartment in good repair throughout the term of the lease; d. that rents charged in the Project shall not be in excess of the current HUD-published "Fair Market Rents" for the 7 units subject to the affordability requirements set forth herein and pursuant to 24 CFR Part 92.252; e. that at least 90% of the HOME units are to be occupied by persons or families whose incomes are below 60% of the current area median income for the Metropolitan Dade County area. Such individuals/families shall be charged rents which conform to the Regulations at 24 CFR Part 92.252 (a) (1); f. that at least 20% of the HOME units are to be occupied by persons or families whose incomes are below 50% of the current area median income for the Metropolitan Dade County area. Such individuals/families shall be charged rents which conform to the Regulations at 24 CFR Part 92.252 (a) (2); MBDC shall also provide the city with the initial tenant list, and any and all subsequent updates, amendments and modifica- tions thereto, with documentation for all tenants confirming family size, income, and the rent being charged. 6. MBDC shall undertake an Affirmative Marketing Program, as same is described in 24 CFR Part 92.351. 8 7. MBDC shall, upon expiration or cancellation of this Agreement, transfer to the city any Funds provided hereunder which remain on hand at the time of expiration or cancellation, and any accounts receivable it holds which are attributable to the use of the Funds. 8. In the event the terms and conditions of the HOME program are changed, or in the event the city decides, in its sole discretion, to do so, this Agreement may be terminated, in whole or in part, for convenience, in accordance with 24 CFR, Part 85.44. A written notification shall be required, and shall include the reason for the termination for convenience, the effective date, and in the case of a partial termination, the actual portion to be terminated for convenience. Notwithstanding the language set forth herein, the city's reasons for terminating this Agreement for convenience, in whole or in part, shall not be arbitrary or capricious. 9. This Agreement shall be deemed effective upon being duly executed by both parties, and shall remain in effect throughout the period of affordability required herein and pursuant to 24 CFR Part 92.252. 9 10. Any amendments, alterations, variations, modifications or waivers of any provisions to this Agreement, including an increased allocation of Funds as may, for example, be contemplated for the construction and rehabilitation phases of the Project, will only be valid when such amendments, alterations, variations, modifications, and/or waivers have been reduced to writing and signed by the parties. 11. The City is responsible for monitoring the operations of the Program, and for taking action when performance problems arise. Accordingly, not less than annually, the City shall review the activities of MBDC, as funded hereunder,. to assess compliance with the requirements of this Agreement, and with HOME Regulations. The results of each review will be included in the city's performance report to HUD, as required by 24 CFR Part 91. 12. At least annually, MBDC shall submit to the city a certifi~d copy of the report of its independent auditors no later than ninety (90) days following the end of its Fiscal Year. Such report shall include a description of any audit findings, and MBDC I S response thereto. Such audits must be conducted in accordance with 24 CFR Part 44, and with OMB Circular A-133, and any and all such other audit standards as may be required by OMB, HUD and/or the city. 10 13. MBDC agrees that it will maintain all records required pursuant to 24 CFR Part 92, and other regulations, as appropriate, and that it will prepare and submit all reports necessary to assist the city in meeting record keeping and reporting requirements thereunder. Specifically, MBDC shall deliver to the City I s Housing and community Development Division, by January 31st of each calendar year, its signed notarized report in form and substance acceptable to the City, to include names of tenants, unit type, family income, rents charged, and occupancy factor of each unit for the prior calendar year. This report will continue to be required for the full period of affordability hereunder, beginning on the date of issuance of a Final certificate of Occupancy for the Project. 14. MBDC shall also maintain the following records: a. Records that demonstrate that the Project meets the property standards set forth in 24 CFR, Part 92.251; b. Records that demonstrate compliance with the requirements of 24 CFR, Part 92.253 for tenant and participant protection. (Records must be kept for each family assisted) i 11 c. Equal opportunity and fair housing records, containing: 1. Data on the extent to which each racial and ethnic group and single-headed households (by gender of household head) have applied for, participated in, or benefitted from, any program or activity funded in whole, or in part with HOME Funds; 2. Documentation of actions undertaken to meet the requirements of 24 CFR Part 92.350 which implements Section 3 of the Housing and Urban Development Act of 1968, as amended; 3. Documentation and data on the steps taken to implement the jurisdiction's outreach programs to minority owned and female owned businesses, including data indicating the racial/ethnic or gender character of each business entity of each business receiving a contract of $25,000 or more paid with HOME funds; the amount of the contract or sub-contract, and documentation of MBDC'S steps to assure that minority and women's business enterprises have an equal opportunity to obtain or to compete for contracts or subcontracts as sources of supplies, equipment construction and services; 12 4. Documentation of the actions MBDC has taken to affirmatively further fair housing; 5. Records documenting compliance with the affirmative marketing procedures and requirements described in 24 CFR Part 92.351; d. Records documenting compliance with the displacement, relocation and real property acquisition procedures and requirements described in 24 CFR Part 92.353; e. Records documenting compliance with the labor requirements described in 24 CFR Part 92.354, including contract provisions and payroll records; f. Records documenting compliance with the lead based paint requirements described in 24 CFR Part 92.355; g. Records supporting requests for waiver of the conflict of interest prohibition described in 24 CFR Part 92.356; h. Records of certifications concerning debarment and suspensions required by 24 CFR Part 92.357, and 24 CFR, Part 24; 13 i. Records documenting compliance with the flood insurance requirements described in 24 CFR Part 92.358; J. Records documenting sources and amounts of repayments, interest, and other return of investment of HOME Funds; k. Financial and related records required by 24 CFR Part 92.505; 1. Records of audits and resolution of audit findings. Such records are to be maintained, as required by HUO regulations, for a period of at least three (3) years after the expiration of the affordability period (i.e. the records must be maintained, at a minimum, for a period of eighteen (18) years following the issuance of a Final certificate of Occupancy for the Project). 15. Notwithstanding any of the provisions of this Agreement, MBDC agrees to comply with all Federal, state and local regulations as they may apply to the Project; including, but not limited to, the Federal requirement set forth in the attached Exhibit "C". 16. This Agreement may not be assigned or transferred by MBOC without the written consent of the city thereto. It shall be 14 deemed a default of this Agreement in the event that MBDC does not strictly comply with the procedures established herein for obtaining city consent to assignment or transfer as defined by this Paragraph. 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 the defaulting party. In the event MBDC transfers an interest of more than one (1%) percent ownership in its stock by pledge, sale, or otherwise; or if MBDC makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if MBDC 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 receivership for MBDC, shall be deemed an assignment of this Agreement and will require the prior written consent of the City thereto. 17. The city may place MBDC in default of this Agreement and may suspend or terminate this Agreement in whole or in part for cause. "Cause" may include, but not be limited to the following: 15 a. Failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any Federal, state or local regulation; b. Submitting any required report to the city which is late, incorrect, or incomplete in any material respect; c. Implementation of this Agreement, for any reason is rendered impossible or infeasible; d. Failure to respond in writing 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 the Project, or any violation of applicable HUD rules and regulations; f. MBDC's insolvency or bankruptcy; g. An assignment or transfer of this Agreement or interest therein which does not comply with procedures set forth in Paragraph 16 herein; any the h. Failure to comply and/or perform in accordance with the affordability requirements, and/or an 16 unauthorized transfer of title as set forth in Paragraph 3 herein. In the event of a default the city may, thirty (30) days after mailing to MBDC a notice of such default as set forth herein, automatically cancel and terminate this Agreement without liability to any party to this Agreement. If the default complained of is not fully and satisfactorily cured within thirty (30) days of the city mailing notice such default to MBDC, at the expiration of said thirty (30) day period this Agreement may, at the city's sole option and discretion, be deemed automatically cancelled 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 and the Project. 18. 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 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. 17 19. That certain Agreement by and between the city and MBDC dated July 28, 1993, outlining the agreement of MBDC to undertake certain activities as a community Development Housing organization (CHDO) is attached hereto and incorporated herein as Exhibit "0". In the event of any conflict between that Agreement and this one, the terms of this Agreement shall prevail. 20. All notices shall be sent to the parties at the following addresses, with copies to the office of the City Attorney: city: Roger M. Carlton, city Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 with copies to: Harry Mavrogenes, Assistant city Manager Shirley Taylor-prakelt, Director Housing & community Development Division MBDC: Denis A. Russ, President Miami Beach Development Corporation 1205 Drexel Avenue Miami Beach, FL 33139 with copies to: Karl Kennedy, Homeownership Officer Miami Beach Development corporation 18 The City and MBDC 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. 21. 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 $200,000.00. LESSEE hereby expresses its willingness to enter into this Agreement with LESSEE's recovery from the city for any damage action for breach of contract to be limited to a maximum amount of $200,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, LESSEE hereby agrees that the city shall not be liable to the LESSEE for damages in an amount in excess of $200,000.00, 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 19 paragraph or elsewhere In this Agreement lS In any way intended to be a waiver of the limitation placed upon City's liability as set forth in Florida statutes, section 768.28. 22. ARBITRATION: Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matter related thereto. In that regard, the parties shall mutually select an arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgement upon the award rendered may be entered into any court having jurisdiction, or application maybe made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach thereof, including any controversy or claim relating to the right to specific performance shall be settled by litigation and not arbitration. 20 IN WITNESS WHEREOF, MBDC has caused this Agreement to be executed by its duly authorized officer(s), and the city has caused this Agreement to be executed by its duly authorized officer(s), the day and year first above written. MIAMI BEACH DEVELOPMENT CORPORATION " Il :fWaJ0f- CITY OF MIAMI BEACH -'Y~2bf- '-' By Date ~~/~ 21 EXHmIT B BUDGET 18 l.C) (J) I > o Z I (J) o c o .~ 'D ell 2 ~ '" 0 ~ l[) ~ I'- 0 0 ~ ..... ~ I~- 0 0> '0 10 ~ N co Ql 0 ~ 0 0 ~ l[) 0 "'" l[) 0 v 0 0 0> r'> I'- >- 0 V <0 V l[) 0 1.0_ 0> 0 0 0 0 0 I'- 0 l[) 0 co ~ <0- eo l[) 0 0> 0 N 0 I'- 0 0 co II) l[) N <0 0 <0 0 l[) I'" l[) 0 v II) L() 0 ~ 0> en N (") '" IN 1fT N ~ '<l" ~ N 1fT ... 1fT 1fT 1fT ,1fT 1fT N 1fT 1fT ... 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"! .Q ro a: '" '" '" :;; > o U <> " o EXHIBIT C HOME PER-UNIT SUBSIDY LIMITS 19 HOME PROGRAM MAXIMUM PER-UNIT SUBSIDY LIMITS The current high cost subsidy limits for the City of Miami Beach are as follows: 0- Bedroom. 1- Bedroom 2- Bedroom 3- Bedroom 4- Bedroom $58,764 $67,361 $81,911 $105,964 $116,316 · O-bedroom includes efficiency units and single room occupancy (SRO) units 20 EXHIBIT D DISABll.ITY DISCRIMINA nON AFFADA VIT 21 DISABILITY NONDISCRIMINATION AFFIDAVIT CONTRACT REFERENCE NAME OF FIRM, CORPORATION, OR ORGANIZATION 7rl6 j)(!..; lJ€'d!s J'/. ~S AUTHORIZED AGENT COMPLETING AFFIDAVIT: POSITION I?rtS/~ PHONE NUMBER rM S.:3Y--t:>O/tJ 7J~I1/~ .fJ. /(use; I, , being duly first sworn state: That the above named firm, corporation or organization is in compliance with and agrees to continue to comply with,'and assure that any subcontractor, or third party contractor under this project complies with all applicable requirements of the laws listed below including, but not limited to, those provisions pertaining to employment, provision of programs and services, transportation, communications, access to facilities, renovations, and new construction. The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101-336, 104 Stat 327, 42 U.S.C. 12101- ] 2213 and 47 U.s.C. Sections 225 and 611 including Title I, Employment; Title II, Public Services; Titic III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S:C. Section 794. The Federal Transit Act, as amended: 49 U.s.e. Section 1612. The F,i, Hou,i"B Aot" ,m,"d,d, 42 U.S.C. S,otio" J601_J~ _ ~ /2.-/ (, / 9..s- / Dale ;;;l.-fp -err- SUBSCRIBED AND SWORN TO (or affumed) before me on (Date) ~She is personally known 10 me Of has by :J)E IV I sA, KU55 (Affi ant) as identification. presented (Type of identifieation) ~72:MY~ C(] 4L/-1c f'S""0< (Serial Number) MV OOMMIHION . 1l\14-\1!Gi2 ~1"li; Aallllll, 1\lf8 'OOCItd TtlIU NoIaiY I'uIlIiI: lJndll'Mtllfl TI) b I r H /VIA F-S fl-A IL. if- -;;J.g - 9 '1 (print or Stamp Name of Notary) (Expiration Dale) Notary Public ~ '7 f&~ (State) Notal)' Seal The City of Mianli Beaeh will not award a contracllo any finn, corporation or organization that fails to complete and submitlhis Affidavit with the fInn, corporation or organization's bid or proposal or fails 10 have this Affidavit on file with the City of Mianl1 8eaeh.