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SHIP Agreement FY 2006-2007SHIP AGREEMENT SHIP Fiscal Year 2006-2007 .~do~~ ~~ ~~ ~ THIS AGREEMENT, entered into this/O~day of~a ~ , 2008, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its rincipal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, anot-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. 2008-26847, on July 16, 2008; 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 utilizes SHIP funds, provided by the Florida Housing Finance Corporation under the terms ofthe 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 for homeownership or for rent; and WHEREAS, MBCDC has operated a "Scattered-Site" Home-Ownership Program since 1990, assisting low- and moderate-income individuals and families in the purchase of condominiums at various locations throughout Miami Beach, by providing down payment assistance and other forms of aid to the prospective home buyers. NOW, THEREFORE, in consideration ofthe 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 (also referred as the SHIP Program Rule). Any term, defined in the SHIP Program Rule, not otherwise defined in this Agreement, shall have the meaning set forth in said Rule. ARTICLE II BUDGET AND SCOPE OF SERVICES MBCDC will utilize $798,763.50 of SHIP Fiscal Year 2006/2007 funds, as set forth in the Scope of Services in Exhibit "A", attached hereto and made a part hereof (hereinafter refereed to as the Funds, which definition shall also 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), exclusively for rehabilitation, down payment assistance, closing costs assistance and home ownership counseling for MBCDC's Scattered-Site Home Ownership Program and Rental Development (in accordance with the Scope of Services in Exhibit "A", attached hereto). Residential units which are purchased or rehabilitated using SHIP funds will hereinafter be referred to individually as a "project" or a "SH1P unit" or collectively, as "projects" or "SHIP Units." ARTICLE III PROGRAM INCOME MBCDC agrees that any SHIP Program Income generated from the use of the Funds under this Agreement, shall be used to further other affordable housing activities. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE SHIP AND HOME PROGRAMS The parties hereto acknowledge that the Funds provided hereunder are also to be used in conjunction with funds received through the Home Investment Partnerships (HOME) Program. Therefore some or all ofthe projects assisted will be required to comply with the rules of both the SHIP and HOME Programs. The State of Florida has acted to encourage the use of SHIP Program funds in coordination with HOME Program funds by suggesting that in projects which use funding from both sources, generally the HOME rules will take precedence. However, where both SHIP and HOME Program reference a particular term or rule, the rule which is more restrictive will apply. Any violation ofthese requirements may, at the City's option, result in the full amount of the Funds being immediately due and payable by MBCDC to the City, and shall also be considered and treated as an event of default, which may result in the City's termination for cause of the Agreement, pursuant to Article X herein. MBCDC expressly agrees to the following terms and conditions in conformity with the SHIP Program Rule: (a) Affordability Period. The period of time SHIP assisted units must remain affordable is in accordance with the SHIP Program Rule, or the term of a Department of Housing and Urban Development (HUD) insured mortgage, whichever period occurs later. The Funds shall be repaid in their entirety 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 shall be repaid in their entirety to the City if the SHIP units are transferred or sold to another owner except as specified herein. Concurrent with the closing on a SHIP assisted unit, the owner shall execute a Restrictive Covenant incorporating the pertinent terms ofthis Article. (c) Units' Quality Standards. Units funded by Funds must provide safe, sanitary, and decent residential housing for low-income, very low-income, and moderate-income persons (i.e., a person whose income is within specific income levels set forth herein, as documented by HUD). (d) Income Targeting. MBCDC shall ensure and maintain written documentation that conclusively demonstrates that each unit assisted in whole or in part with SHIP Funds provides benefit to very-low (families whose annual incomes that do not exceed fifty percent (50%) of the median family income for the area), and low- income (families whose annual incomes do not exceed eighty percent (80%) ofthe median income for the area), and moderate income (families whose annual incomes which do not exceed one hundred twenty percent (120%) of the area median income), as determined and published from time-to-time by HUD. (e) Records: MBCDC agrees to maintain all records sufficient to meet the requirements of the SHIP Program Rule, including, but not limited to: SHIP Program records, project records, and SHIP Program administration records. MBCDC warrants and represents that it maintains a financial management system that conforms to the financial accountability standards of Attachment F -Office of Management & Budget (OMB) Circular A-110. All records required herein shall be retained and made accessible for a period of at least three (3) years after closing, as provided in the SHIP Program Rule, and Florida Statutes Chapter 119. (f) Property Standards. For the duration ofthis Agreement (and any amendments hereto) housing that is 2 assisted with SHIP funds, at a minimum, must meet the Housing Quality Standards of CFR 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. (g) Maximum /Minimum Funds Per Unit. The minimum amount of SHIP funds that can be invested is $1,000 per dwelling unit, and the maximum amount is limited to $40,000 per unit. (h) Environmental Clearance. For any building assisted hereunder in its entirety, 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. (i) Affirmative Marketing. MBCDC acknowledged 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. (j) 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 ninety percent (90%) of the average purchase price for the Miami-Dade Metropolitan Statistical Area (VISA) of $429,619 for new and existing homes, and subject to change from time-to-time, as determined by the Florida Housing Finance Corporation; 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. (k) dual 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 Program funds. paint. (1) Housing assisted with SHIP funds shall be subject to testing and abatement activities for lead-based (m) Without limitation, MBCDC agrees to comply with those statutes, regulations and executive orders, as amended, and as set forth in Exhibit "B", attached hereto and herein incorporated by reference. ARTICLE V ELIGIBLE COSTS MBCDC agrees that eligible costs for units assisted 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 set forth under the Scope of Services in Exhibit "A") 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 or disbursement of Funds under the terms ofthis Agreement maybe withheld at the City's 3 sole discretion pending the receipt of, 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. No payments or disbursements will be made without evidence of appropriate insurance required by this Agreement. 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, but MBCDC must obtain at least three (3) bids for all rehabilitation work or services estimated to be in excess of $500. Copies of all bids received shall be kept in the job file. A copy of all executed contracts must be forwarded to the City within ten (10) days after execution. (b) MBCDC agrees to include a statement in all contracts and subcontracts that it executes, or causes to be executed, which expressly provides that the contractor or subcontractor(s) shall indemnify and hold the City harmless against all claims of any nature arising out of the contractor or subcontractor's performance of work or services under the contract. ARTICLE VIII [INTENTIONALLY DELETED] ARTICLE IX TERM OF AGREEMENT This Agreement shall be deemed effective following approval by the Mayor and City Commission and execution of same by the parties hereto. The City and MBCDC mutually agree that the Funds are reserved for MBCDC for the designated time period as follows: Fiscal Year 2006/2007 funds, in the amount of $798,763.50 are reserved through June 30, 2009. MBCDC shall have arranged for the rehabilitation or construction of a minimum of fifteen (15) dwellings prior to June 30, 2009, pursuant to the terms of this Agreement. If MBCDC is not in compliance with the schedule attached hereto (Exhibits A & A-1 ), the City, in its sole discretion, shall have the right, upon written notice to MBCDC, without further notice (other than the preceding) required, to automatically terminate this Agreement; declare same null and void with regard to the remaining uncommitted Funds; require, at the City's option, that MBCDC immediately pay the entire amount of the Funds back to the City; and take any and all other actions it deems necessary to carry out the commitments of the SHIP Program, including selecting another service provider for all or part of the unspent Funds. ARTICLE X jINTENTIONALLY DELETEDI 4 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 CONFLICTS OF INTEREST (a) In addition to required compliance with all applicable State, Miami-Dade County, and City of Miami Beach laws, rules, codes, and ordinances (as same may be amended from time to time) pertaining to conflicts of interest and code of ethics, MBCDC shall comply with the standards contained within the SHIP Program Rule. (b) Disclosure. 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 afor-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 prior to forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported in the City required Progress Report (as referenced in Article XIV). ARTICLE XIII INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City, its officers, directors, employees, and agents 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 MBCDC or any of its officers, directors, employees, agents, servants, contractors, subcontractors, consultants and sub consultants, patrons, guests, clients, 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 ofthe City and/or its officers, directors, employees and agents, when applicable, and shall pay all costs and judgments which may issue thereon. This indemnification shall survive termination and/or expiration of this Agreement. MBCDC shall maintain, during the term of this Agreement, the insurance specified below. (1) General Liability: $1,000,000 combined single limit for bodily injury and property damage, for each occurrence. (2) Contractual Liability: the policy must include coverage to cover the above indemnification. (3) Automobile and vehicle coverage, in the amount of $1,000,000 per occurrence, shall be required when the use of automobiles and other vehicles are involved in any way in the performance of the Agreement, including non- owned automobile coverage. (4) Workers' Compensation Coverage as per statutory limits required by the State of Florida. 5 (5) Builders Risk/Comprehensive Fire and Hazard Insurance (multi-family projects only): MBCDC shall deliver to the City the original policy of Builder's Risk and Comprehensive Fire and Hazard Insurance, in completed value form, with extended coverage in the amount of the full insurable value of the specific funded project or projects, upon completion of construction, issued by a company satisfactory to the City. (6) Flood Insurance (multi-family projects only): If the floor grade of the first level of the building is determined to be below the base floodplain elevation required by the Federal Emergency Management Agency (FEMA) of eight (8) feet above National Geodetic Vertical Datum (NGVD), MBCDC shall deliver to the City evidence satisfactory to the City that the premises are covered by flood insurance supplied by the Federal Insurance Administration, to the maximum amount available, all as provided in the Flood Disaster Protection Act of 1973, as amended, together with appropriate endorsement. MBCDC agrees that the City shall have the right to take any action necessary to continue said insurance in full force. MBCDC shall submit to the City ORIGINAL certificates of insurance for the above coverages, with the City of Miami Beach, Florida named as an additional insured. 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 automatically terminate and become null and void, without further notice to MBCDC required, and the City shall have no obligation under the terms hereof. In the event of such automatic termination, MBCDC shall immediately return the entire amount ofthe Funds to the City, and the City's rights and remedies against MBCDC shall be the same as set forth in Article DC. ARTICLE XIV REPORTS (a) Pro egr ss 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 in Exhibit "A", attached hereto). The progress reports shall be submitted no later than ten (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 MBCDC will take whatever actions the City deems appropriate to ensure the success of the projects. If the required reports described above are not submitted to the City, or are not completed in a manner acceptable to the City, the City may withhold payment of Funds until they are completed and/or revised, or may take such other action as it may deem appropriate including, without limitation, termination of the Agreement for cause. ARTICLE XV AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City and/or the Florida Housing Finance Corporation (FHFC) may deem necessary, in their respective sole discretion, there shall be made available to the City Administration, 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 ofthis Agreement, for at least three (3) years after the close ofthe fiscal year in which the Funds reserved hereunder are fully expended. 6 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, specifically including, but not limited to, the SHIP and HOME Program Rule(s) Additionally, MBCDC will comply with all State and local laws (i.e. Miami-Dade County and City of Miami Beach) and ordinances hereto applicable,. ARTICLE XVII jINTENTIONALLY DELETEDI ARTICLE XVIII ACCESS TO RECORDS MBCDC agrees to allow access during normal business hours to all financial, SHIl' Program, and HOME Program (if applicable) records to authorized Federal, State or City representatives, including but not limited to, the purposes set forth in Article XV herein, 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 financial 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, and/or State, and/or Federal representatives. 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 Housing Initiatives Partnership (SHIP) Program, and administered by the Real Estate, Housing and Community Division of the City of Miami Beach as the entity which provided funds for the particular 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 7 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 XXIII ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the City. Transfer requiring the City's prior written consent shall include, without limitation, transfers of an interest of more than five (5%) percent ownership in MBCDC's stock by pledge, sale, or otherwise; if MBCDC makes an assignment for the benefit of its creditors, uses this Agreement as security or collateral for any loan; and/or if MBCDC is involved in any bulk transfer of its business or assets. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receiver for MBCDC, shall also be deemed an assignment ofthis Agreement, and will require the prior written consent of the City thereto. The City may terminate this Agreement for cause in the event that MBCDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Article. ARTICLE XXIV TERMINATION FOR CAUSE AND/OR FOR CONVENIENCE In addition to the City's rights and remedies in Article IX hereof, or as may be provided elsewhere in the Agreement, this Agreement may also be terminated by the City, in whole or in part, for cause, or convenience, in accordance with the provisions of the SHIP Program Rule. The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause. "Cause" shall include the following: (a) Failure to comply and/or perform in accordance with any of the terms and conditions ofthis Agreement, or any Federal, State or local regulation; (b) Failure to submit any required report to the City or submitting any required report which is late, incorrect, or incomplete in any material respect; (c) Implementation ofthis 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 and/or HOME Program Rules and regulations, or of any applicable City, State, County, andlor Federal laws, ordinances, code provisions, ordinance and/or other regulations; (f) MBCDC'S insolvency or bankruptcy; or (g) An assignment or transfer of this Agreement or any interest therein which has not been approved by the City pursuant to Article XXIII. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, 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 8 diligently pursuing curative efforts), this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the Funds shall immediately become due and payable to the City. The City shall further be fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of, this Agreement. In the event of a default for cause, the City may also, at its option, avail itself of any and all remedies pursuant to 24CFR part 85.43, as amended from time to time, including suspension in whole or in part, of any and all MBCDC's other grant award(s); recapture of those funds; and any other remedies that may be available at law or in equity. Notwithstanding the above, this Agreement may also be terminated by the City, in whole or in part, without cause and for the City's convenience, upon the furnishing of thirty (30) days written notice to MBCDC. In the event of termination for convenience by City, any unexpended funds (including, without limitation, any Funds or portions of Funds hereof which have not been approved as eligible by the City) shall immediately become due and payable to the City. MBCDC further acknowledges and agrees that, in the event of a termination for convenience by City, MBCDC shall not have any claim, demand, or cause of action of whatsoever kind or nature against the City, its agents, servants and employees, and that the City shall be fully discharged from any and all liabilities, duties, and/or other terms arising out of, or by virtue of, this Agreement. ARTICLE XXV ADDITIONAL CITY REMEDIES In the event of termination of this Agreement, whether for cause or for convenience, 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 MBCDC. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. 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 and 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 in paragraphs (b) and (c) below. (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 9 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 notwithstandingany 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 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 XXVIII VENUE This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, MBCDC AND THE CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT ARTICLE XXIX NOTICES All notices shall be sent to the parties at the following addresses: City: Anna Parekh, Director Housing and Community Development Division City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 MBCDC: Roberto Datorre, President Miami Beach Community Development Corporation 945 Pennsylvania Ave. 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. ARTICLE XXX ADDITIONAL CONDITIONS AND COMPENSATION (a) 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 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 ofcurtailment ornon-production of said SHIP Program funds, that the financial sources necessary to continue to pay MBCDC hereunder will not be available, and that this Agreement will thereby automatically terminate, effective as of the time it is determined by the City that said funds are no longer available. In the event of such determination by City, MBCDC agrees that it will not look to, nor seek to 10 hold the City, nor any of its officials, directors, officers, employees andJor agents, liable for the performance ofthis Agreement, and all parties hereto shall be released from further liability each to the other under the terms ofthis Agreement. (b) Title and paragraph headings are for convenient reference and are not a part ofthis Agreement. (c) In the event of conflict between the terms ofthis 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 ofthis Agreement and any terms or conditions contained in the SHIP Program Rule, the terms of the SHIP Program Rule shall have precedence, unless HOME Program Funds are also being used, in which case the provisions of Article IV shall apply. (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. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 11 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. ATTEST: . S~ f Se etary vs Print Name MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION President ~U YIQ.r~ v d~ Print Name CITY OF MIAMI BEACH ATTEST: '~ City Clerk atti Herrera Bower, Mayor F:\neig\HSG-CDIMARK\SH[P 2006-2007 (MBCDC)\SHIP Agreement with MBCDC (FY 2006-2007).doc APPROVED AS TO FORM & LANGUAGE 4. cnr~ EXECUTION 12 EXHIBIT A Scope of Services Services to be Provided: MBCDC will provide Homeownership Activities (rehabilitation services, new construction, down payment assistance and/or closing cost assistance to home buyers) to a minimum of thirteen (l3) dwelling units, in accordance with the Budget. Additionally, MBCDC must provide fifteen (IS) units from construction-related activities (rehabilitation or new construction). In addition, MBCDC will provide home ownership counseling to a minimum of sixty (60) families (See Exhibit A-1). Expenditure Deadline: MBCDC acknowledges and agrees that all Funds provided under this Agreement shall be expended, documented and invoiced to the City prior to June 30, 2009 (see Schedule of Expenditures, Exhibit A-1). 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, as amended September 10, 2008. 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 the SHIP Program Rule, 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: • 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: • 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. 13 Permit fees -those fees paid to the City's Building Services Division for permits necessary to undertake the work outlined in the application for funding as a response to the SHIP Notice of Funding Availability of September 27, 2007. • Construction supervision costs payable to MBCDC, in an amount equal to 10% of the value of the total rehabilitation costs and .5% of the appraised value of the units purchased with SHIP funds. Down Payment Assistance Closing Costs Assistance Home Ownership Counseling: MBCDC may retain 2% of the total funds. Required Documentation: For each home buyer assisted with the Funds provided hereunder, MBCDC shall require to keep the following documentation: • 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 ninety (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. • A copy ofthe executed construction contract for the rehabilitation work [copies ofthe contractor's license, and proof of insurance should be included. 14 • 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. 15 EXHIBIT A-1 MBCDC Budget for SHIP Funds /FY 2006-2007 SHIP Requirements 65% Homeownership Required Set aside 75% Construction Required Set-Aside 30 % Very Low Income minimum requirement Low-Income minimum requirement Minimum Amount Minimum Units $519,196.28 13 $599,072.63 I S $239,629.05 n/a $239,629.05 n/a The maximum amount that may be spent for any unit or household is $40,000 per unit. 16 EXHIBIT B OTHER REQUIREMENTS As the City of Miami Beach is providing this funding through State funds, combined with Federal funds, MBCDC agrees to comply with the following statutes, regulations and executive orders, as amended, as they apply. These requirements are incorporated herein by reference. 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 VIII 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 ofthe 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 191.1101) 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, MBCDC AGREES TO COMPLY WITH ALL EXISTING FEDERAL, STATE AND LOCAL LAWS AND ORDINANCES HERETO APPLICABLE, AS AMENDED. 17 k ~ ~ @~ { i S ! n ~Y * y A t 3' a Lf Y ~ ' f 'A ti ~ F ~ 2 o-» OFFICE OF REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT MEMORANDUM TO: Robert Parcher, City Clerk FROM: Anna Parekh, Director DATE: November 13, 2008 SUBJECT: SHIP Agreement for FY 2006-2007 / $798,763 Please find for the Mayor's signature three original copies of the SHIP Agreement between the City of Miami Beach and the Miami Beach Community Development Corporation (MBCDC) in the amount of $798,763. MBCDC shall have until June 30, 2009 to draw draw down the SHIP funds. They are required under this Agreement to rehabilitate or construct a minimum of fifteen units, thirty (13) of which shall be for homeownership activities. In addition, MBCDC will provide homeownership counseling to a minimum of sixty (60) families. The FY 2006-2007 SHIP funds are not covered by the recent amendment to the City's Local Housing Assistance Plan and as such will continue to have a maximum per unit subsidy of $40,000. Once the enclosed Agreements are executed by the Mayor, kindly return them to this Office, attention: Mark Bertocci, SHIP Program Monitor. His extension is 6955. enclosure F:\neig\HSG-CD\MARK\SHIP 2006-2007 (MBCDC)\Pre-execution memo (CM).doc