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CDBG Home Program Agreement
. e .:~ . anvq- a~~~~ .• HOME PROGRAM AGREEMENT . ~ THIS AGREEMENT, entered into this day of ~Qr 201:0, by and between the CITY OF " MIAMI BEACH, a Florida municipal corporation, having its principal office at 1-700 Convention Center Drive,. Miami Beach,. Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a .not-for-profit Florida corporation, with. offices , located at 945 Pennsylvania Avenue, Miami.Beach, Florida (hereinafter referred.to as MBCDC). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the United States Department of Housing. and Urban Development (HUD) as a participating jurisdiction for the receipt of funds as ' provided under the HOME Investment Partnerships Program and' pursuant to the HOME Program `Final. Rule, 24-CFR- PART 92, as same may be amended from time to-time; acid " . * WHEREAS, the City has an agreement with HUD for the .,purpose of conducting an affordable housing. program with federal financial assistance under the HOME Program; and : WHEREAS, on April 8, 1993, the Mayor and City Commission approved Resolution No. • 93-20756, designatirig Miami Beach Community-Development Corporation (MBCDC) as a qualified. Community Housing Development Organization (CHDO) under the HOME Program; and. . WHEREAS, the City has determined the necessity for providing affordable housing in the City through the Fiscal Year 2009/2010 One-Year Action Plan for Federal funds," adopted by ". Resolution No. 2009-27.146 on July 15, 2009. • NOW, THEREFORE, in consideration of the mutual promises contained.herein, the parties ' hereto agree as follows: . ` . ., ARTICLE 1 " - DEFINITIONS - • , As used in-this Agreement the terms listed below,shall have the following meanings: (a) HOME Program: HOME Investment Partnerships Program, Final Rule, 24 CFR Part 92, as same may be amended from time to time; ' (b) HUD: United States .Department of Housing and Urban ,Development or any successor agency; ,• (c) CHDO: Community Housing Development Organization, as defined in the HOME • Program; (d) Funds: "HOME Program funds; (e} -CHDO Operating Expenses: Those eligible reasonable and necessary costs for the operation of the CHDO such as salaries,. wages, .and other employee' compensation and benefits; employee education, training, and travel; rent; utilities;:communication costs; taxes; insurance; and equipment, materials and supplies. MBCDC agreesthat eligible operating "expenses under this Agreement are limited to those eligible costs for operating expenses as .Page 1 of 19 .. .outlined in the. HOME. Program, at 24 CFR PART 92.208. Funds may not be used to pay 'operating expenses incurred by a CHDO acting as asub-recipient or contractor under the HOME Program: -Any term not otherwise defined in this Article t or in this Agreement shall have the meaning set forth in the HOME Program. ARTICLE II' ALLOCATION OF NOME FUNDS a) 'Inconsideration for the performance by MBCDC of its roles and responsibilities, as set forth _ in this Agreement,. the City will provide MBCDC with HOME Program funding (from the fiscal Year `, (FY) 2009-10 HOME allocation to MBCDC), in the total amount ofONE MILLION SEVENTY THREE ` THOUSAND SEVEN HUNDRED ELGHTY SIX DOLLARS ($1.,073;786) (the .Funds). The Funds will be provided to MBCDC from its Fiscal Year (FY) 2009-10 HOME Program allocation, and shall be.used by MBCDC solely and ,exclusively for CHDO project eligible expenses for the rehabilitation of the following buildings (hereinafter referred. to individually as the Project, and/or • ` collectively. as the Projects): 1. Meridian Place Apartments, located at 530 Meridian Avenue, Miami $each, Florida.. The Project will provide thirty four (34) units of affordable rental housing; and - 2: Nepturie Apartments, located at 1632 Meridian Avenue, Miami Beach, Florida. This Project will provide thirty five (35) units of affordable rental-housing. The ScopeofiServices forthe Projects is attached is attached as Exhibit"A"hereto. The respective ,~ budgets are attached, respectively, as Exhibits B-1 (Meridian Place) and B-2 (Neptune Apartments). ` b) Affordability Period. MBCDC will be required to maintain required HOME, Program rent and • occupancy limitations and standards, for each Project, for a minimum period of thirty (30) years, ' . commencing with the issuance of a Temporary Certificate `of Occupancy (TCO) or Certificate of . . Occupancy (CO); whichever is earlier,. by the City of Miami Beach -Building Department {the . - Affordability Period), • ARTICLE III. • PROCEEDS FROM .HOME INVESTMENT fn accordance `with the HOME Program, at 24 CFR PART 92.300(a)(2), MBCDC may retain the ` proceeds resulting from investment of its CHDOset-aside furids for use in ..other housing activities which benefit low-income families. However, any retention of HOME fundsfor housing not meeting ' the .affordability requirements of the HOME Program,: at {24 CFR PART 92.254(a)(5)(ii)), will be . considered Program income and will be .repaid in accordance.with the rrequirements of the HOME Program, (at 24 CFR PART 92.503). ` . . ARTICLE IV ,. , ' SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE'HOME PROGRAM MBCDC expressly agrees that the following provisions shall. be applicable to the Funds:.. Page 2 of 19 ' (a)• MBCDC will enter into a written agreement (or agreements) with the City, within `twenty-four (24) months of the effective date the Fiscal Year 2009/2010 HOME Agreement- between HUD and the City, in order#o commit the Funds to a specific eligible CHDO project, or, in this case, projects.. The~City, at its sole discretion, may require commitment of the " Funds within an alternate time period; as determined in the sole and reasonable discretion of . ~ the City Manager, in the event same is necessary to avoid recapture. of said Funds. ` . (b) ~ MBCDC will maintain a financial mariagement system "that conforms to the financial accountability standards of the HOME Program, at 24 CFR PART 84.21 ("Standards for , Financial Management Systems"). . . ~ (c) Affirmative Marketing. MBCDC shall adopt and implement affirmative .marketing procedures-for rental and home buyer projects containing five (5) or more HOME-assisted, housing units, as set forth in the HOME Program, at (24 CFR 92.351), and to maintain - records of ~ its affirmative marketing activities in accordance with the record keeping ` requirements of the HOME Program', (at 24 CFR 92.508 (a)(7)(ii)). - ` (d) CHDO~Capabilities. MBCDC shall develop, sponsor, or own the projects funded by • the. Funds and, in any of these. capacities, shall at' all times have/maintain effective • management control. (e) Change in Status: MBCDC shall advise the City, in writing, within thirty (30) days of any organizational, operational, or legal .status changes made by MBCDC that affect " documents that were submitted. by MBCDC to obtain CHDO status. " (f) Property Standards: MBCDC shall comply with the property standards requirements . - set forth in the HOME Program, (at 24 CFR PART`92.251): - (g) MBCDC shall comply .with. the requirements of Executive Orders Nos..11625 and - ~. 12432 concerning Minority Business Enterprise and 1"2138 Women's Business-Enterprise - which encourage the use of minority and women's business enterprises, to the maximum - .extent-possible, in connection"with HDME-funded activities. (h) MBCDC shall 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. (i) MBCDC shall comply with all of the following federal laws, executive orders and . regulations pertaining to fair housing and equal opportunity, as same may be amended: ~- (1) Title VI of the Civil Rights Act of 1964 (42 U:S.C. 2000d) --States that no.person may be excluded from participation in, denied the benefits of; or subjected to ` discrimination'under any.program or activity receiving federal financial assistance on " ` the basis of race, color, or national origin. Its implementing regulations may be ~~ .found in 28 CFR Part 1. " - ° , : ` ~ (2) Title Vlll of the:Civil~Rights Act of 1968 (the "Fair Housing Act") (42 U.S:C. 3601.) ` - and its implementing regulations at 24-.CFR Part 100-1' 15 -- Prohibits discrimination ` in the saleor rent of units in the private housing market against any person~on the. ' • basis of race, color, religion, sex, national origin, familial status or handicap. Page 3 of 19 - i ~ (3) Equal Opportunity in Housing (Executive. Order 11063, As Amended by Executive Order 12259) and implementing regulations at 24 CFR Part 107 -- - Prohibits discrimination in housing or residential property financing related to any . ' . federally assisted activity against individuals on the basis of race, color, religion,. sex ~or national origin. . (4) Age Discrimination Act. of 1'975, (42 U.S.C. 61D1) and its. implementing '~ - regulations of 24 CFR Part 146 --Prohibits age discrimination in programs receiving federal financial assistance. E x . ' ~ ~ (5) Equal Employment Opportunity,-Executive Order 11246,.and its implementing . regulations at 41 CFR Part 60 -- Prohibits discrimination against any employee or applicant for employment because of race, color, religion, sex; or~~national origin. ' Provisions to effectuate this prohibition must also be included in all construction. ' contracts exceeding. $10,000. ~ . (j) MBCDC shall comply with the requirements of Section 3 of the Housing and. Urban ' Development Act of 1968 (12 U.S.C. 1701 u) -which requires that, to the greatest extent. - feasible, opportunities for training and employment arising from HOME will be provided to . ~. low-income `persons residing in the program service area, and; to the greatest extent feasible, contracts for work to be performed in connection with, HOME will be awarded to business. concerns which are located in or owned by persons residing in the program service ' area. (k) ~ MBCDC will- ensure that all units in a project assisted with .HOME funds comply with the Lead Based Paint Poisoning Prevention Act (42 U.S.C.. 4821, et) and its implementing. , regulations at 24 CFR: PART 35. (I) MBCDC shall comply with the Federal Labor Standards Provisions, as described in : HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community . Development Programs) --Applies to all projects with twelve (12) or more HOME-assisted units., regardless of whether HOME funds are used for construction or other costs. ;; - (m) . MBCDC'agrees to administer a policy to ensure. that it complies with the :Drug-Free 'Workplace Act. requirements under 24'GFR Part 24; Subpart F, and will ensure that the workplace is free from the unlawful manufacture, distribution, dispensing, possession or use . ` of drugs or alcohol (ri) ~ MBCDC agrees to adhere to and be governed by the following ~ accessibility °. ~ requirements: - 1. Architectural Barriers Act of .1968, As Amended (42 U.S.C.4151) and its . ' • • ~ implementing regulations at 35 CFR Part 107 -- States that. public :(i;e., chose intended to be accessible to fhe general public) buildings and conveyances financed with federal funds are designed, constructed, or altered to provide accessibility to the . physically handicapped. ' - ~ 2. Section 504 of the Rehabilitation Act 'of 1973 (29 U.S.C. 794) and ~. ~ implementing, regulations at 24 CFR Part 8 -- Prohibits discrimination in federally . Page 4 of 19 • , .~ -,assisted programs on the basis of handicap and imposes requirements to ensure , - that "qualified individuals with handicaps" have access to ,programs and activities , that receive federal funds. 3. " Title Vlll of the Civil Rights Act of 196,8, As Amended the "Fair Housing Act" (42 IJ.S.C. 3601) and' its implementing regulations at,24. C~FR Part.100-115. 4. MBCDC must complete and submit the-City's Disability~Non-Discrimination. - ~ ; Affidavit (Affidavit), a•copy of which is attached herefo and incorporated herein as Exhibit "C". In the`event MBCDC fails to execute th'e 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 MBCDC under the Agreement until compliance; and/or termination of the Agreement., ~. •; ARTICLE V - jINTENTIONALLY OMITTED] A. ARTICLE~VI ~ . . ~ METHOD DF PAYMENT The Funds shall be paid to MBCDC as follows: • (a) MBCDC shall be paid for eligible Project Expenses, asset forth-in the Budgets set - ~ forth in exhibits B-1 and B-2, respectively; based on actual costs;. and with supporting " ~ ~ documentation. MBCDC shall be paid only for'those expenditures identified in~the Budgets. Project Expenses not identified in the Budgets must obtain the prior written approval of the City Manager prior to MBCDC incurring same. Budget line item transfers must also have the prior written approval of the City Manager. " Supporting documentation shall include, but not be limited to, the following: • (1} Books, .records. and documents in accordance. with generally accepted . accounting principles, procedures and. practices, which sufficiently and properly reflect all revenues and expenditures of Funds. (2) A system. of allocation that will assure reliable cost measurements and customary service delivery costs... - {3) Time sheets for split-fianded~employees, who work on more than one activity, in . . ~ order to record the HOME activity delivery cost by project and the non-HOME related 4 charges.. " (b)- Requests for payment shall be assembled by calendar month and received by the ' .City no later than the 1 Oth day of the succeeding month.. Failure to .comply may .result in rejection of invoices. ~ _ , • Page 5 of 19 (c) ,No paymerits will be made without.evidence of all appropriate insurance required by this Agreement. (d) . MBCDC understands and agrees that disbursements of Funds under this Agreement . ;, .. may not be requested until said Funds (or portions thereof) are needed for .payment of . eligible costs. The amount of each request. must be limited to-the amount needed. In no event shall the City provide advance. funding to MBCDC, nor shall MBCDC advance Funds to any party. Payment of all or any portiori of the Furids may be withheld pending the receipt and approval by the . -City of any and all .reports and. documents which MBCDC .is required to submit pursuant to this , Agreement. :.. , - ' ARTICLE VII . . , - ~ . SUBCONTRACTS (a) MBCDC agrees that no work orservices contemplated by this Agreement (including ` ~ without limitation, consultant work or services) shalt be subcontracted or reimbursed without . the prior written approval of the City .Manager. - (b) MBCDC shall require, and shall include language in all contracts withsub- contractors, that said. sub-contractor shall hold the City of Miami Beach, ,Florida, harmless . against all claims of whatever nature arising out of the subcontractor's performance of work or services. . ' " (c) MBCDC shall provide the City with copies of all executed subcontracts vvithin.ten (10) days-after execution. ARTICLE VIII ' ~ [INTENTIONALLY OMITTED) ~ - _ ARTICLE IX . 'TERM OF AGREEMENT (TERM) This Agreement shall become effective upon execution, and shall terminate at the conclusion of . the respective Affordability Period for each project. _ ' ARTICLE X ~ '. ' ~ jINTENTIONALLY OMITTED) .. ~ ARTICLE XI AMENDMENTS Any amendments 'or modifications to this Agreement shall .only be valid when they have been reduced to writing and duly approved and signed by both parties hereto. Any changes which do not . Page 6 of 19 materially change the scope of the Agreement, or increase the total amount of Funds payable under this Agreement; shall be validonly when reduced to writing and approved and executed by the parties but, as to the City,. such amendments may, be approved and signed by the City Manager. . ARTICLE XII . CONFLICT OF INTEREST (a) , .MBCDC shall comply with the standards contained in the HOME Program, at 24 CFR ' Part:92.356, which states that no owner, developer or sponsor of a project assisted with .HOME funds (or officer, employee, agent or consultant of the owner, developer or sponsor), whether private for-profit or non-profit (including a CHDO ,when. acting as an ,owner, . developer or sponsor) may occupy aHOME-assisted affordable housing unit in a project. 'This provision does not apply to an owner-occupant of single- family housing or to an. d ~ ~ employee or agent of the owner or developer of a rental housing project who occupies a . .HOME assisted unit asthe project manager or maintenance worker: Exceptions may only be granted by the City in accordance with.. 24 CFR Part 92.356(f)(2). - ~' ~ (b) , ~ MBCDC shall disclose any possible'conflicts of interest or apparent improprieties of any.;party'that is covered by the above standards. MBCDC shall make such disclosure in writing to the City Manager 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, afor-profit ornon-profit subsidiary or affiliate organization, an organization with overlapping board of directors, and an organization for which MBCDC is responsible for . appointing memberships. MBCDC shall report this-information to the City upon forming the. relationship or, if already formed, shall otherwise report it immediately. . ARTICLE XIII INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City,. and/or 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 andshall defend all suits in the name of the City, and/or•-its officers, directors, . employees Arid agents, and shall pay alt costs and judgments which may issue thereon. This indemnification shallsurvive termination and/or expiration of this Agreement. 'MBCDC shall. maihtain, 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, subject to adjustment for inflation. (2) Contractual. Liability: the policy must include coverage #o cover the above indemnification.. e - ~ (3) Automobile and vehicle coverage, in the amount. of $1,000,000 per occurrence; subjectto adjustment for inflation, shall be required vvhenthe use of"automobiles and other , _ vehicles are involved in any .way in the performarice of the Agreement, including non- . ~. ;owned automobile coverage. " {4} Workers' Compensation Coverage as required pursuant to Florida Statute. {5) Builders Risk/Comprehensive Fire and Hazard. Insurance: MBCDC shall deliver to f 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, in fhis.case, .projects, upon completion of _ - construction.. (and providing for adjustment subject to inflation), issued' by a company - .° satisfactory to the City. ` (6) Flood Insurance: if the floor grade of the first.level of the building is determined to be , belovv 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 - aflood 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 shalhimmediately return the entire amount of the Funds to the City, and'the City's rights and remedies against MBCDC~shall be the same asset forth in Article IX. - ARTICLE XIV _ - REPORTS '- (1) Progress Reports., MBCDC agrees to `submit monthly status reports, which shall • ~ describe the progress made by MBCDC in achieving each of the objectives identified in the Scope of Services (Exhibit "A"). The progress report shall be submitted no later than ten . (10)°days afterthe end `ofeach month. It will be the sole responsibility of MBCDC to notify tfie City, in writing, of any action, law, or event that will impede or hinder the success of the activities contemplated by this Agreement. After such notification, the City Manager will take ' ~ ,.whatever actions it deems appropriate to ensure the success of the project/program. (2) ~ Annual Report: MBCDC shall submit a cumulative status report (hereinafter~referred to as the Annual Report) which shall describe the progress made by MBCDC in achieving each of-the objectives identified in-the Scope of Services (Exhibit "A") during the previous - ~ ~ year. The Annual Report .r'eporting period covers a twelve (12) month period beginning " October 1 and ending September 30, and shall be received by the City by October 15. Page 8 of 19 - - (3) The. City may require that MBCDC submit such other reports, as the City Manager : - may reasonably deem necessary to demonstrate compliance with any of the terms of this ` Agreement, Y If the required reports described above are not submitted to the City, or are not .completed in a manner reasonably acceptable to the City Manager, the City may withhold further payments until they are completed, or take any.other such action, including default, as the City Manager may deem appropriate. ARTICLE XV AUDIT AND INSPECTIONS " MBCDC shall maintain any and all records, as. necessary, to document compliance with the provisions of this Agreement. At any time during normal. business hours-and as often as the City (and/or the comptroller of the United States) may deem.necessary, there shall be made available to the. City Manager and/or his authorized representatives, (and/or the U.S,. Comptroller and/or-his "authorized representatives), toaudit, 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 Agreemenf. If during the course of a monitoring, the City determines that any . ~ .payments made to MBCDC do not~constitute an allowable expenditure, the City vvill have the right to ~re-capture said monies, which shall include, without limitation, the right to d'educt/reduce those amounts: from their related invoices and/or from any remaining .portion of Funds not yet paid to _ 'MBCDC. " * . ARTICLE XVI • COMPLIANCE WITH LOCAL, STATE AND FEDERAL REGULATIONS MBCDC shall comply with all. applicable Federal regulations as they may apply to program administration. Additionally, :MBCDC will comply with all State, County and City laws and ordinances- hereto applicable. ARTICLE XVIt . . TERMINATION DUE TO LACK OF FUNDING " It is expressly understood and agreed by the parties hereto that the Funds originate from grants of. HOME funds and must comply with all applicable HUD rules and regulations.: ` It is expressly understood and agreed that, in the event ~of curtailment or non-production. of said ' Federal funds, the financial sources to pay MBCDC under this Agreement will not be available and, then in-such event, this Agreement will thereby terminate effective as of the time that it is determined by the City Manager;. in his sole-and reasonable judgment and discretion, that-said funds are no • longer available.. - In the-event of such termination, MBCDC agrees that it will not look to; nor seek toehold, the City of Miami Beach and/or any of .its officials,. officers, employees, agentsand/or contractors, personally - liable for .performance. of this Agreement, and the City shall be released. from further liability to " MBCDC under the terms:of this Agreement. Page 9 of 19 . . ~ ARTICLE XVIII ACCESS TO RECORDS , ' . 'MBCOC shall allow access to all financial and other records,•during normal business hours; to authorized Federal, State, Miami-Dade County, or City representatives, and shall provide such . assistance as -may be necessary to facilitate financial and/or other audit by any of~ these :representatives including; without limitation, as deemed necessary by such representatives toinsure compliance with applicable accounting and financial standards. ~ ARTICLE XIX ' [INTENTIONALLY OMITTED] ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release"or other type. of publicity ,pertaining to the project-must, . • recognize. the City asthe-recipient funded by the United States Department of Housing and. Urban Development and administered by the City of Miami Beach Office of Real Estate., Housing and ~ . Community Development Department as the entity which provided Funds for the project, or in this - . case the projects. ARTICLE•XXI jINTENTIONALLY OMITTED] ARTICLE XXII ~ ASSIGNMENT No;part of this Agreement may be assigned or subcontracted without the priorwritten consent of the ` City, which-consent,: if given at all,.shall be at the City's sole discretion and judgment. . ARTICLE XXIII _ ~ [INTENTIONALLY OMITTED] ARTICLE XXIV INDEPENDENT CONTRACTOR MBCDC, and its employees,. contractors. 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 • ~ fheaCivil 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. Page t0 of 19 ' LIIV I CIV IlV1VHLLT VIYI11 I CUB • ARTICLE XXVI . ` ~ ~ TERMINATION FOR CAUSE •~ This Agreement may be terminated, in -whole or in part, .for cause: "Cause",shall include -the following:. = (a) MBCDC's failure to comply and/or. perform in accordance with any of the terms and - .conditions of this Agreement, or "any applicable Federal, State, County or City law. or . ~ regulation. • ~ ' (b). MBCDC's failure to maintain the insurance required by the City. . . - , {c) Submitting. any required report to the. City which is late, incorrect, or incomplete in any material respect. after notice and opportunity to cure, as set forth in subparagraph (e) hereof, has been given by the City to MBCDC. - . • ~ : ~ ; (d) Implementation of this Agreement for any reason is rendered .impossible or infeasible. - (e} 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; = ~ (f) ~~ 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; (g) MBCDC's:insolvency or bankruptcy; (h) An assignmentor transfer of this Agreement (or- any interest therein) which does not comply with the procedures~set forth in. Article XX11 herein; or (i) ~ Failure to comply and/or perform,in accordance with the affordability requirements, and/or an unauthorized transfer of title to its HOME .projects.. 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 hirty (30) day period (or such additional ' period of time, as may be permitted by the City, Manager,.. in his so a discretion, as required to cure such default and in the event MBCDC is diligently pursuing curative efforts) this Agreement may, of . ~ 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, the 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 the HOME Program (at 24 CFR Part 85.43), including. suspension ` and/or re-capture (in whole or in part) of the funds, and any other..remedies that may be available at law or equity: y .. Page 11 of 19 ARTICLE XXVII . . . TERMINATION-FOR CONVENIENCE Notwithstanding Article XXVI above,.the City may terminate this Agreement, in whole or in part, for convenience, as set fiorth in 24 CFR Part 85.44. In the event of termination for convenience, MBCDC .shall immediately return any unused Funds (as of the date of termination) to the City. ' ' Notwithstanding the preceding, the City reserves any and all legal rights and remedies'it may,have with .regards to recap"tui-e of all or. any portion of the Funds as a result of incomplete. and/or unsatisfactory performed-program/project items.: ARTICLE XXVIII " ADDITIONAL CITY REMEDIES In the event of a default and termination for cause, the City shalt also be entitled to bring any and all . legal and/oi- equitable .actions which it deems to be in its best interest, in> Miami-Dade County, Florida; in order to enforce the City's rights and. remedies against the defaulting party. The Cityshall be entitled. to recover all costs of such actions; including reasoriable 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 iri any such action. ~ . ARTICLE XXIX MAINTENANCE AND RETENTION OF RECORDS . ~ ~ ", MBCDC shall maintain all records required pursuant to the HOME Program, (at 24 CFR Part 92.508), in an orderly fashion and in a readily accessible, .permanent and secured location,. and that " " it will prepare and submit all reports required herein, and/or as otherwise required to assist the City in. meeting' record keeping and reporting requirements herein. " (a) Records,shall be maintained for a period of five (5) years afterthe closeout ofFunds~ under this Agreement„except as provided. in subsections.(b); (c) and (d),°herein. (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 reg°ular period specified in " subsection (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 five (5) years after the period of affordability terminates. (d) Records covering displacements and acquisition mustbe retained.for. at least#ive (5) years after the date`by which the persons displaced from theproperty 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 Part 92.353. Page 12 of 19 .:.,: - ' ~ ARTICLE XXX :. .. 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 ofaction 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. $10,000 less any . amounts actually distributed by the City to MBCDC.. MBCDC hereby expresses its willingness to _ ~ enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of - ~ contract to be.limited to a maximum amount of $10,000. less any amounts actually distributed by the City to MBCDC. Accordingly, and notwithstanding any other-term or condition of this Agreement, u MBCDC hereby. agrees that the City. shall note be liable to MBCDC for damages in an amount in excess of $10,000, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing' contained in ' ~ this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation .placed upon the City's liability as seYforth in Florida Statutes, Section 768.28. .ARTICLE XXXI VENlJE This Agreementshall be enforceable in Miami-Dade County, Florida; and if legal action is necessary by either party-with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade County, Florida. This Agreement shall`be governed by, and construed in accordance with, the laws of the State of Florida; both substantive and remedial, without.regard to principles of conflict of laws. The exclusive venue for any litigation. arising out of this Agreement shall be Miami-Dade County; Florida, if in state :. -' ~" court; and the U.S. „District Court, Southern District of Florida, if in federal court.- BY ENTERING _ INTO THIS AGREEMENT, CITY AND .MBCDC EXPRESSLY WAIVE ANY RIGHTS EITHER _ PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR -ARISING OUT OF-, THI$ AGREEMENT. ARTICLE XXXII '[INTENTIONALLY OMITTED] ` ARTICLE, XXXIII . '.[INTENTIONALLY OMITTED] ' ,ARTICLE XXXIV . NOTICES All notices shalt be sent to the parties at the following addresses: ` ~ ~ Page 13 of 19 . City: "Anna Parekh, Director ~ - ,Real 'Estate, Housing; and Community Development City of Miami Beach 1700 Convention Center Drive .Miami Beach, FL 33139 " with copies to: A. Richard Bowman ` Real Estate,. Housing, and Community Development City of Miami Beach ' ~ 1700 Convention Center Drive Miami Beach, FL 33139 ' MBCDC: Roberto. Datorre, President :. Miami .Beach Community Development Corporation .. 945 Pennsylvania Avenue - Miami Beach, FL 33139. _ .. . , or su"ch address-and to the attention of such other person as the City or MBCDC may from .time to ,time designate by written notice to the` other. ' . ARTICLE XXXV ' MISCELLANEOUS . (a) Title and paragraph headings are for convenient reference and are not a part of this Agreement. _ ' (b) ~ 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 rule. .(c) No waiver or breach of any provision of this Agreementshall 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.- °~ ~- - (d) 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. (e) City and MBCDC agree that this Agreement shall be binding upon the parties herein, and' their respective heirs, executors, ,legal representatives, successors, and assigns... IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their. duly authorized officials on the day and date first above indicated. . ~ MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, INC. ,~ a Florida not-for-profit corporation . , ., ATTEST: ' _~ . ~., iSecr ry. President Signature. ~~~ Roberto Datorre _ President Print Name ~ Print Name and Title _ CITY OF MIAMI BEACH a Florida Municipal corporation :ATTEST: . t~ ~ ~`-. ,City Clerk Mayor . ,~ ' _ ~ ~l~ o ~ LET ~ ~ ~-~~%~~ Matti Herrera Bower, Mayor TM Print-Name Print Name and Title APPROVED AS TO . FORM & LANGUAGE ' tk FOR CUTION ~y omey ~ ~ Date Page 15 of 19 Woo' eKvIces Scope Page 16oi19 Meridian Place Apartments Neptune Apartments FY2009/2010 CHDO Set -Aside Funding Rehabilitation/Construction - $465.936 Rehabilitation of. the Meridian Place Apartments, located at 530 Meridian Avenue, .as outlined in the attached budget with a total Projectcost of $7,980,454, and as described in the approved plans (including any approved revisions). Such rehabilitation project resulting in a 34 -unit affordable rental apartment for income -qualified elderly households. Rehabilitation%Construction - $607.850 Rehabilitation of the Neptune Apartments, located at 1632 Meridian Avenue, as outlined in the attached budget with a total Project.cost of $5,987,077; and as described in the approved plans (including any. approved revisions). 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Q v o a a Q 3 O z v~, 0.1.1101 =_ Page 19 19 CITY OF MIAMI BEACH - - - -CERTIFICATION REGARDING LOBBYING Name of Recipient: CITY OF MIAMI BEACH • Name of Sub-recipient: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION Grant Program Name: HOME PROGRAM Funding Year : - 2009/2010 Date: I1'l Q rC h ~fi~'' ~ 2-D I U The undersigned certifies, to the best of his or her knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or any employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress,. or any employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including sub-contracts, sub-grants, and contracts under grants, loans, and •cooperative agreements) .and that all individuals receiving sub-awards shall certify and disclose accordingly. Name of Organization Signature ~-t~ ~CJ- Tom' ~~ Print Name of Authorized Signatory ~~~IE© Date 1 Imes, ~~" Print Title of Authorized Signatory ~~ ~~' CITY OF MIAMI BEACH CERTIFICATION REGARDING DRUG-FREE WORKPLACE REQUIREMENTS ' ~ ~ CITY OF MIAMI BEACH • ., ACKNOWLEDGEMENT OF DISABILITY NONDISCRIMINATION `AFFH)AVIT ' CONTRACT REFERENCE HOME PROGRAM, Fiscal Year 2009/2010 • NAME OF ORGANIZATION " ~. ICJ C ~ C AUTHORIZED AGENT COMPLETING AFFIDAVIT ~ G7. ~j CC ~ (~l: ~ ~ ~ . - POSITION ~ pp PHONE NUMBER I ~ hiY-(~p ( 1''C.~ ,being duly first sworn state: ' ~ 'That the above named form, 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.: - ~ 12101,12213. and 547 U.S.C. Sections 225 and. 611 including Title.I, EmpIoyme'nt; Tittle II, • _ Public Services; Title III, Public Accommodations and .Services Operated by Private Entities; Title N, 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. . ~f ~. ~ - • The Fair Housing Act as amended: 42 U.S.C. Section 3601-3631. ~ , -~ 3-30-~a , .Signature Date.. R :, • ' SUBSCRIBED AND SWORN TO (or affirmed) before me on 3 ~ 3 O -- / 3 ~ by • .(Date), ~b D .~ C-~d ~ A.7o ~' ~.-P ~ He/She is personally known to me or has, (Affiant) .. • presented as identification: j (Type of id ntification) J~.,~ . - ignature of Notary) (Serial Number) a (Print or Stamp Name of Notary) (Ex iration Date) : ~ Notary Public w' ~ (State) Notary Seal . The City of Miami Beach will not award. a contract to ariy firm, corporation or organization that fails to. complete . and submit this Affidavit with the firm, corporation or organization's bid or proposal or fails to have this Affidavit , on f le with the City of Miami Beach. ~ • - :. .. . ~ .~~1d11~~.8ANT130 ,.. • a~ t~Wry:Public -Slate of Florida - %~ . ~ E~ires ~ 5, 2012 • " Coinrtdssion it DD 757745 ~ . . BondedTM'~-NtYaSryllstm ~ ~ CITY OF MIAMI BEACH . • ~ CERTIFICATION OF HOME PROGRAM-FUNDED CONSTRUCTION/REHABILITATION PROJECTS , If the Provider anticipates using HOME funds for construction or rehabilitation, the following .federal and. City of Miami Beach requirements must be acknowledged: A. `All construction or rehabilitation plans and specifications for'the project must be approved by the city's • departments of Planning, Neighborhood Services, Public Works, Building; Code Compliance, and Fire. If the project s located in the Miami Beach Architectural District, or, affects a building. listed or eligible for' listing on the National Register of Historic Places, all plans and specifications. must be approved by the State Historic Preservation Office ~(SHPO), in accordance:. with the Memorandum of Understanding between the SHPO and the City. B. ..The City shall not be obligated to pay any. funds to the project prior to the completion by.-the City of an environmental review of the project, and said review is approved by any government agencies as may be . required by law: C. The Provider will assure all wages paid to construction workers by itor its subcontractors are. in compliance • ~ ~ with federal, state and local labor requirements. The Provider agrees to include in the construction bid specifications. in connection with this agreement the applicable Federal Wage Determination assigned to this ' ; . project by HUD. The Provider must also inform his .contractor/subcontractors that they will be required to submit documents after acity-conducted pre-construction conference and prior to construction. Weekly ` and/or monthly reports must be submitted (hereafter, as required by the federal government. ~- a D. ,The .Provider agrees. to comply with, and to assure that its subcontractors. comply with, the federal Office of ' Management and Budget (OMB) Circular Number A-102 Attachment E for programs funded in whole or in part by HOME PROGRAM funds; with federal OMB Circular A-102 Attachment O for the procurement of , • • supplies, equipment,~construction and services; and with Federal Management Circular A-87; or any other ` applicable OMB circular. E. Pursuant to .Section 109 of the Act, the Provider specifically agrees that no person shall `be denied the benefits of the program. on the grounds of race; color, sex, religion or national origin. ' . ' ' `.. 'F.. The Provider agrees; on its own behalf and on behalf of its contractors and.subcontractors, to take affirmative action in attempting to employ low income and minority persons,'as mandated by law. G. As required' by OMB Circular Number A-102, and by Florida Statutes .Section 287:055, professional services • must be competitively selected. The competitive selection process must include a public advertisement; issuance of a-request for proposal -and a competitive review based on uniform criteria. Selection criteria must • ~ consider the basic qualifications, professional competence, experience and suitability of each firm. Fees for professional services must be requested as a fixed sum and not stated as a percentage of construction costs. • ' ,H: All documents, bid specifications, notices, and construction drawings must be submitted -for the .review' and - approval ofthe Neighborhood Services Department prior to public advertisement. , I. ~ The bidding process for constructiorn contracts must include a formal advertisement, published in The Miami Review, Dodge Reports and The Miami Builder's Exchange. This announcement must include the "following:. 1. - The date, time and place that bid documents are available; and the same information for any pre- - bid conferences and receipt of bids. _ 2. The requirement of bid surety in the amount of ten percent (10%) of the bid, and a performance • ,and payment bond equal to 100% of the award. ~ = ' . •4 ..` ~ 3. A standard statement regarding the "in whole or in part" federal funding of the project and the . ~ various applicable federal regulations. y J. 'The City reserves the right to be present at the time of bid openings. If City HOME Program monies are the sole funding source, the City may require that bids. be received and opened by the City's Procurement .Department.. K. The Provider agrees to submit to the City's Neighborhood Services Department all documentation of the steps ,followed in the selection ofprofessional-services and construction contracts. ~. - L. -. -The Provider .agrees to specify a time of completion and include a liquidated damage clause in all construction contracts. Cost plus a percentage of cost, and percentage of construction cost contracts will not .be permitted: ' M. ' If the Provider is .awarded HOME Program funds,.. other conditions and requirements will be specified in the ,funding agreement. ~ ~ ' . ' N. The Provider agrees that it will riot start construction until an official "Notice to •Proceed" has been issued., . ' ° _ O. Pursuant to 570.608 of the HOME Program Regulations, and the new provisions in 'the .Economic and s Community Development Act of -1974 as amended, the Provider agrees ^to comply with the inspection; ` ~ notification; testing and abatement procedures concerning-lead-based paint. - ; I hereby acknowledge that I have read the specific requirements contained in this Certification, andthat eligibility of my organization's project depends upon compliance with the ` requirements. contained in this document. - Name of Organization Signature,. ' t _ . Prmt Name of Authorized Signatory Print Title of Authorized Signatory. ~3. - .,3 a ^ , o _, Date -. ~ ~ %~ - .. ,i 5 -- CERTIFICATION OF LEAD BASED PAINT REOUIREMENTS -APPLICABILITY: A, The lead based paint rule applies to HOME Program funded housing activities involving . construction,: purchase and rehabilitation. ' B.. The following housing rehabilitation activities are excepted: 1. Emergency repairs (but. not lead based paint-related emergency repairs) . , 2. ' Weatherizing. ~ .. 3. ~ Water and/or sewer hookups . ' ' 4: ~ Installations of security devices. S.. Fasilitation'oftcx exempt bond issuances for funds. 6. ..Other single-purpose activities that do not .include, physical repairs or remodeling of applicable surfaces . 7: Other activities that do not involve applicable surfaces and do not exceed $3,000 per unit. - 'INSPECTION AND TESTING REQUIREMENTS: ' e The. Provider shall be required to test the- lead content of chewable surfaces of an .apartment building to be rehabilitated; if there is a family residing in one of the units with a child under seven years.. -. of age, with an identified elevated blood level condition (concentration of lead in blood of 25 micrograms • ' per deciliter or greater) and the building was.constructed prior to 1978. ' Chewable surfaces are defined as all exterior surfaces of a residential structure,. up to five. feet from " - , the floor or grourid, such as: a wall, stairs, deck; porch, railing, windows or. doors that .are readily - . accessible to children under seven years of age, and all interior surfaces of a residential structure. Lead content shall' be tested. by using an x-ray fluorescence analyzer.oi• other method approved. by HUD. Test readings of 1 mg/cm or higher shall be considered positive for presence of lead. based paint. ,; : REQUIRED TREATMENT: .. . Treatment of lead- based paint conditions must be included as part of the proposed rehabilitation ;work. All chewable surfaces. in any room found to contain lead based paint must be treated before final inspection and approval of work; Similarly, all exterior chewable surfaces must be. treated when they are- . ~ .found to contain lead based paint.. ' Minimum treatment'~involves covering or removing the painted surfaces. Washing and repainting - without thorough removal or covering does not constitute adequate treatment. Covering can be achieved . by adding a layer of",gypsum wallboard or fiberglass cloth barrier. Depending-on the wall condition, permanently attached, non-strippable wallpaper may be applied. Covering or replacing trim surfaces is also-permitted. Removal can be accomplished by scraping, heat treatment .(infrared or coil type heat ' _ 6 CITY OF MIAMI BEACH CERTIFICATION OF RELIGIOUS ORGANIZATION REQUIREMENTS In accordance with First Amendment of the U.S. Constitution - "church state principles", HOME Program assistance may not, as a general rule, be provided to primarily religious entities for any secular or religious activities. Therefore, the following restrictions and limitations apply to any provider which represents that it is, or may be deemed to be, a religious or denominational institution or an organization operated for religious purposes which is supervised or controlled by or operates in connection with a religious or denominational institution or organization. .. A religious entity that applies for and. is awarded HOME Program funds for public service activities must agree to the following: I . It will not discriminate against any employee or applicant for employment on the basis of religion and will not limit employment or give preference in employment to persons on the basis of religion; 2. It will not discriminate against any person applying for such public services on the basis of religion and will not limit such services or give preference to persons on the basis of religion; It will provide no religious instruction or counseling, conduct no religious worship or services, engage in no religious proselytizing, and exert no other religious influence in the provision of such public services; i 4. The portion of a facility used to provide public services assisted in whole or in part under this Agreement shall contain no sectarian or religious symbols or decorations; and The funds received under this Agreement shall not be used to construct, rehabilitate, or restore any facility which is owned by the Provider and in which the public services are to be provided. However, minor repairs may be made. if such. repairs are directly related. to the public services; are located in a structure used exclusively for non-religious purposes; and constitute, in dollar terms, only a minor portion of the HOME PROGRAM expenditure for the public services. I hereby acknowledge that I have read the specific requirements contained in this Certification, and that eligibility of my organization's project depends upon compliance with the requirements contained in this document. Name of Organization: ~~ ~~ Q Signature ~D6,2C~U ~ 147DCl~ Print Name of Authorized Signatory 3-30-~ a Date ~C~P S! d e .~i Print Title of Authorized Signatory i ,~ 8