The URL can be used to link to this page

HOME PROGRAM AGREEMENT - MBCDC 530 Meridian Place g'o/D- 274L 2 ' Ai& D/ --Pr &A HOME PROGRAM AGREEMENT THIS AGREEMENT, entered into this2day ofNl4 // 2011, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a not - for - profit Florida corporation, with 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; and 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, designating Miami Beach Community Development Corporation (MBCDC) as a qualified Community Housing Development Organization (CHDO) under the HOME Program; and WHEREAS, on October 11, 2006, the RDA adopted Resolution No. 538 -2006, authorizing an appropriation of $1,500,000, to the City of Miami Beach from previously allocated South Pointe Redevelopment Area funds to be utilized by the City to enter into a loan and /or other funding agreement with Miami Beach Community Development Corporation (MBCDC), for the purpose of MBCDC's acquisition and rehabilitation of the property located at 530 Meridian Avenue (Meridian Place); and WHEREAS, the City has determined the necessity for providing affordable housing in the City through the Fiscal Year 2010/2011 One -Year Action Plan for Federal funds, adopted by Resolution No. 2010 -27428 on July 14, 2010. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings: (a) HOME 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; Page 1 of 20 (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 agrees that eligible operating expenses under this Agreement are limited to those eligible costs for operating expenses as 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 a sub - recipient or contractor under the HOME Program. Any term not otherwise defined in this Article I or in this Agreement shall have the meaning set forth in the HOME Program. ARTICLE II ALLOCATION OF HOME FUNDS In consideration for the performance by MBCDC of its role and responsibilities, as set forth in this Agreement, the City will provide MBCDC with HOME Program funding in the total amount of FIVE HUNDRED SIXTY -SIX THOUSAND TWO HUNDRED FIFTY -SEVEN DOLLARS ($566,257) (the Funds). The Funds will be provided to MBCDC from the City's Fiscal Year 2010/2011 HOME Program allocation, to be used for eligible CHDO Project Expenses for the rehabilitation of the apartment building known as Meridian Place, located at 530 Meridian Avenue, Miami Beach, Florida 33139, that will provide thirty -four (34) units of affordable rental housing (the Project). MBCDC will provide the services to the Project in accordance with the Scope of Services (Exhibit A) and Project Line -Item Budget, Project Pro Forma, and Construction Timeline (Exhibit B), attached and incorporated hereto. Such Line -Item Budget will include all sources of Project funding and the uses of each source of funds. MBCDC will maintain required HOME Program rent and occupancy limitations and standards 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, for the Project by the City of Miami Beach Building Department (the Affordability Period). ARTICLE III PROCEEDS FROM HOME INVESTMENT In accordance with the HOME Program, at 24 CFR PART 92.300(a)(2), MBCDC may retain the proceeds resulting from investment of its CHDO set aside funds for use in other housing activities which benefit low- income families. However, any retention of HOME funds for 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 requirements of the HOME Program, (at 24 CFR PART 92.503). Page 2 of 20 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: (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 2010/2011 HOME Agreement between HUD and the City, in order to commit the Funds to a specific eligible CHDO project or 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 management 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 (acting as a CHDO) 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 12138 Women's Business Enterprise which encourage the use of minority and women's business enterprises, to the maximum extent possible, in connection with HOME - 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. Page 3 of 20 (2) Title VIII 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 -115 -- Prohibits discrimination in the sale or 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. (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 1975, (42 U.S.C. 6101) and its implementing regulations at 24 CFR Part 146 -- Prohibits age discrimination in programs receiving federal financial assistance. (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. 1701u) — 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. MBCDC will ensure that all contractors performing renovation, repair and painting of projects assisted with HOME funds comply with the certification requirements of the 2008 EPA Rule under 40 CFR Part 745. (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 CFR 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. (n) 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 Page 4 of 20 implementing regulations at 35 CFR Part 107 -- States that public (i.e., those intended to be accessible to the 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 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 VIII of the Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100 -115. 4. MBCDC must complete and submit the City's Disability Non - Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated 'herein as Exhibit "E ". In the event MBCDC fails to execute the City's Affidavit, or is found to be in non - compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to MBCDC under the Agreement until compliance, and /or termination of the Agreement. ARTICLE V [INTENTIONALLY OMITTED] ARTICLE VI METHOD OF PAYMENT The Funds shall be paid to MBCDC as follows: (a) MBCDC shall be paid for eligible Project Expenses, as set forth in the Budget (Exhibit B); based on actual costs; and with supporting documentation. MBCDC shall be paid only for those expenditures identified in the Budget. Project Expenses not identified in the Budget 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. Page 5 of 20 (3) Time sheets for split- funded employees, who work on more than one activity, in order to record the HOME activity delivery cost by project and the non -HOME related charges. (b) Requests for payment shall be assembled by calendar month and received by the City no later than the 10th day of the succeeding month. Failure to comply may result in rejection of invoices. (c) No payments 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 portion of the Funds 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 or services contemplated by this Agreement (including without limitation, consultant work or services) shall be subcontracted or reimbursed without the prior written approval of the City Manager. (b) MBCDC shall require, and shall include language in all contracts with sub- 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 within ten (10) days after execution. ARTICLE VIII [INTENTIONALLY OMITTED] Page 6 of 20 ARTICLE IX TERM OF AGREEMENT (TERM) This Agreement shall be deemed to have commenced on October 1, 2010, and shall terminate at the conclusion of the thirty (30) year Affordability Period (as same is defined in Article II herein). ARTICLE X [INTENTIONALLY 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 materially change the scope of the Agreement, or increase the total amount of Funds payable under this Agreement, shall be valid only 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 a HOME - assisted affordable housing unit in a project. This provision does not apply to an owner - occupant of single- family housing or to an employee or agent of the owner or developer of a rental housing project who occupies a HOME assisted unit as the project manager or maintenance worker. Exceptions may only be granted by the City in accordance with 24 CFR Part 92.356(0(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, a for - profit or non - 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. Page 7 of 20 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 and shall defend all suits in the name of the City, and /or its officers, directors, employees and agents, 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, subject to adjustment for inflation. (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, subject to adjustment for inflation, 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 required pursuant to Florida Statute. (5) Builders Risk /Comprehensive Fire and Hazard Insurance: 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 (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 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 Page 8 of 20 the City shall have no obligation under the terms hereof. In the event of such automatic termination, MBCDC shall immediately return the entire amount of the Funds to the City, and the City's rights and remedies against MBCDC shall be the same as set forth in Article IX. ARTICLE XIV REPORTS (1) Progress Reports. MBCDC agrees to submit Quarterly Status Reports (Exhibit C), which shall describe the progress made by MBCDC in achieving the objectives identified in the Scope of Services and shall include photographs of recent Project progress. The status report shall be submitted no later than ten (10) days after the end of each month. Except that any request for payment shall be accompanied by an updated pro forma, line -item budget, and construction timeline. It will be the sole responsibility of MBCDC to notify the 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 during the previous year. The Annual Report shall cover the period of twelve (12) months, beginning October 1 and ending September 30 and shall be received by the City by October 15. (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. 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), to audit, examine and make audits, of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment, and other data relating to all matters covered by this Agreement. If during the course of a monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure, the City will have the right to re- capture said monies, which shall include, without limitation, the right to deduct/reduce those amounts from their related invoices and /or from any remaining portion of Funds not yet paid to MBCDC. At a minimum, at least one monitoring site -visit will be performed annually during the term of the contract. Documentation and information required is outlined in the Monitoring Summary (Exhibit D). Page 9 of 20 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 XVII 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 to hold, the City of Miami Beach and /or any of its officials, officers, employees, agents and /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. ARTICLE XVIII ACCESS TO RECORDS MBCDC 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 to insure 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 as the 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 as the entity which provided Funds for the Project. Such news releases and publicity shall include the statement: Page 10 of 20 "FUNDED BY THE CITY OF MIAMI BEACH HOME PROGRAM" In written materials, the words below shall appear in the same size letters or type as the name of MBCDC: "CITY OF MIAMI BEACH HOME PROGRAM FUNDS ADMINISTERED BY THE CITY OF MIAMI BEACH OFFICE OF REAL ESTATE, HOUSING AND COMMUNITY DEVELOPMENT" ARTICLE XXI [INTENTIONALLY OMITTED] ARTICLE XXII ASSIGNMENT No part of this Agreement may be assigned or subcontracted without the prior written consent of the City, which consent, if given at aII, 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 the Civil Service or Pension Ordinances of the City, or any rights generally afforded Classified or Unclassified employees; further he /she shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXV [INTENTIONALLY OMITTED] 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 Page 11 of 20 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 assignment or transfer of this Agreement (or any interest therein) which does not comply with the procedures set forth in Article XXII herein; or (1) 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 thirty (30) day period (or such additional period of time, as may be permitted by the City Manager, in his sole discretion, as required to cure such default and in the event MBCDC is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the City fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of, 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. ARTICLE XXVII TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI above, the City may terminate this Agreement, in whole or in part, for convenience, as set forth 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 recapture of all or any portion of the Funds as a result of incomplete and /or unsatisfactory performed program /project items. Page 12 of 20 ■■■ ARTICLE XXVIII ADDITIONAL CITY REMEDIES In the event of a default and termination for cause, the City shall also be entitled to bring any and all legal and /or equitable actions which it deems to be in its best interest, in Miami -Dade County, Florida, in order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE 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 after the closeout of Funds 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 regular 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 must be retained for at least five (5) years after the date by which the persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled in accordance with 24 CFR Part 92.353. 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 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 $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 Tess any amounts actually distributed by the City to MBCDC. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of $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 Page 13 of 20 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 XXXI VENUE This Agreement shall 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, THIS AGREEMENT. ARTICLE XXXII [INTENTIONALLY OMITTED] ARTICLE XXXIII [INTENTIONALLY OMITTED] ARTICLE XXXIV NOTICES All notices shall be sent to the parties at the following addresses: City: Anna Parekh, Director City of Miami Beach Office of Real Estate, Housing, and Community Development 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 such 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. Page 14 of 20 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 of this 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 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. (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 -pr• i'corporation ATTEST: Secre =ry President Signature Roberto Datorre, President Print Name Print Name and Title CITY OF MIAMI BEACH a Florida Municipal corporation ATTEST: eat Aft ,t4 • City Jerk Ma • r - - Robert Parcher Matti Herrera Bower, Mayor Print Name Print Name and Title Page 15 of 20 APPROVED AS TO FORM & LANGUAGE & FnR EXECUTION 3 i y Attorney' Date EXHIBIT A Scope of Services Rehabilitation /Construction Rehabilitation of the Meridian Place Apartments, located at 530 Meridian Avenue, as outlined in the attached budget, 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. Page 16 of 20 EXHIBIT B Project Line -Item Budget, Project Pro Forma, Construction Timeline I Page 17 of 20 ti 7 .0 sr . { , 3 k „,....,,„„.__ 1( s: . t,ef._,....r. .. .. Building and Sustaining Community -- Unique, Vibrant, Diverse IHOME ALLOCATION FY 10/ 11 - REVISED BUDGET 3/10/20111 ITEM AMOUNT NOTES ORIGINAL HOME 10/11 ALLOCATION 423,936.00 PART OF ORIGINAL BUDGET ADDITIONAL HARD COSTS CONTINGENCIES 100,321.00 EXISTING CONTINGECIES EXHAUSTED ADDITIONAL INSURANCE 36,000.00 18 MONTHS ORIGINAL 24 MONTHS ACTUAL ADDITIONAL ARCHITECTURAL AND ENG 6,000.00 FIRE SPRINKLERS CIVIL ELEVATOR ETC. TOTAL NEW REQUESTED AMOUNT 566,257.00 MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION 945 Pennsylvania Ave. • Miami Beach, Florida 33139 • Phone 305 538 -0090 • Fox 305 538 -2863 vM � o V a.- tlO?Nv -. r S w nN 'n4 s v vi t v - o N g' � N W ° h d M W O M M N M ea 2 J a 0 of O :� W to .`no 3 �b . r 41. w C IiiIiiiiiiiiiiiiiiiilt4! W - f0lF A p O A b n m pn � a 0 O ON V n . g - N V7 OI M R N H o U i C V° �N LDON 0 0 • 0 0 M t0 A t0 A V A u , a A ; 2 C {� pp y EL N Y O g 0 0 OO n A OO O W 1 c] J 3i O tD W h ' O C 6 i U '- O! t0 M A V A (0 tV V ao b O M 0 V U 111,.. W Q O N M N M ts III .. a00 NO bb Of m O N • O Oi00 O � NN N M M 1 < F ! ° ! G E a4S O 'A N M . . 10 .' y V M O M ( NO m �Nti h N l0 l0 0C�Op aa 0 a M Fi M M .p M M V O W N oo pppp _ t (e _ p� _ ma � . rd O � W 1000 '$. O N .9 i 0 0� N t l0 7 __Cain 0000 2 = S O 2 O -M it_ C t 6 to A t0 LL U UU 'a gm� g a r� � E 0) N °' a O 'o Q O UU ()(o 1 H° c F 2 00 0 Ur Q N O l) a 0 . p . Y A W lei O _ C N M A N N W fe m o N U IiiiiiiiiiiiiiiiIiiiii 0 N N A ` s O n M lr 1 A y . ryry . V r N N 2 = M o < a co _ — < 2 N Z p ._ 2 m 0 0 W i N “f � �� . w w �� c O g18. N 00. Q � 0 �_ ` • nm S SSK 2 NE v S 4 �i W N M E g •m�m r 0 E J :L 0 o x " x' U' No O c Z o o E'EE v m cU ¢ FF s� O e rn s �— g C E tC s if wm_m a W . ' , Q Y E U ugot'�' -� 2 m 6 S > Q U OW _ < S ` - 0 -O c J — n n J �� O d . ��. pp O O � cw ` o os E � �E F�moo Z m �y _. wO 17 Na v $ v"i o •vc> v PEE" ainrr, b Z �08� O �O r 0. m r rcJ a w z' r z o c •- N M V N A t0 8 to 0. c tN a 'c 0 M 11= 1111111111MI11111111111w1111111w1 I IIFIIIIOIHUIIHIIIIIOIIIIIIIII 21. 11 1 t.,. 12.,1 111®IUIIIIIIINIIIIIUIIIIIIISI 111111 . 1111 , 111•111•I IU11111II IIIIIIli111h1E1 ■111111 5.,1 4.if 3., f 2 11 1 ®1.111111111111.11111111111111 111 �IIIIII IIIIIIIIIIII 11IpIII IIII — EI IE3LI.IfIi II�I1f/1.11111.11.1.111111 RI. IIIifl11.1IIII.IIIII.i�I.i11111 111111111•1.3LI.IIIi111AUMMIi1 IUMMI.IUM II 11111111111111111111111110 t ,. IIIIIII 11 tz�• r,. I�IIIIII M1. 11=11111111111111111111111111111•111111M1111 MIMI IMEIMIUMMINEUMMUNIIIIIMIUM MI 111111111110111110111111110 -A Ei1■ i11i111i ■IIIII.IIi11.ImI.111111 MO EMI .IIIIII1rI1111.f/11f.iM■Ii1111 1 '1111111111111111111111111111101 .■ 1I. Iii1/ii1Ei111f.11i11.I�f.1i1111 II 11 IIllIlllO11IlI - II ,I ilihIIIrIuuI EmnimIIIIIII:;III:IIIm Ienuo INNEIMILEUNIMMININUMEMIIIIMIEMM �C�i I:IIIIIIIIIII:IIIMINII:IIIII 1111■■ ICI ■Il MINIlilfi. IIIIIi CI .I111111�11111.I r '� I t 90�I ,1111111 /1II1I 11.UI111.11 •1.111111 1 I .111 11.1 1.11 111 I - II sit.1/1iiumni1.111I1.11.1.i1Ii11 m . I. i1111iI�I11111111111.I�1.I1111i h 7.■ I�1.IIf1111111111i111.i1111aM1.l111i .. IEiEI .111111 /tui111.IIIII I 1.111111 .■ II�1 .1111111tIuuIII.IIIIi.I�Iai111I ;. IM IEZEI .IIIIIIIIi11111.IIIII.IIII.Ifliii .• IESI .III1i1IIN11III.111iI.IINi.111i11 ,■ �II11 1111�i1 11111.11111.�1 11111111 1 -■ NISI .i11i11iI.I1111.Iuf1 ■IIII1.ff1111 °' .. IEEI ®11111IIIMUNII.i11A1.1I1.i111i1 w '.• I. IIIIIIf�111lf.IIIMI.f1.f■fflifi - i ■ INEIM ii1111Ef1111.IIIII.IEI.i111ii ; o : _s ■ f f.IIIIIilMfii11.1fIMUMI.111ff1 U ! 1111111111111 cc !3:§' EXHIBIT C Monthly Project Status Report Form Page 18 of 20 MI AMIBEACH Mon thly Project Summary Office of Real Estate, Housing & Community Development Project Profile Reporting Agency Project IDIS Activity #: EDEN Account #: Grant Program ❑ CDBG ❑ CDBG -R ❑ HOME ❑ NSP ❑ SHIP Reporting Period ❑ October /10 ❑ November /10 ❑ December /10 ❑ January/11 ❑ February/11 ❑ March /11 ❑ April /11 ❑ May /11 ❑ June /11 ❑ July /11 ❑ August/11 ❑ September /11 Please provide a narrative summary for each service category, as applicable. Acquisition (includes Environmental Review, Proformas, Closing Agreements, Applicable Clearances, etc.) Percentage of Completion as of This Report Rehabilitation (includes Permitting, Architectural Services, Construction, etc.) Percentage of Completion as of This Report Tenant Placement (includes Eligibility Screening, Relocation Expenses, Move -In, etc.) Percentage of Completion as of This Report Prepared By Signature Date EXHIBIT D Monitoring Summary Administration /Financial Management Includes organizational structure, Board of Directors, personnel records, maintenance of appropriate insurances, written operational policies and procedures, maintenance of an adequate financial management system, fiscal year audit report and findings, and maintenance of the City contract documentation. General Files Maintenance Includes overall submission of required reports (both financial and narrative), documentation on project staff as necessary, maintenance of correspondence with the City, and the maintenance of original program application and amendments. Procurement Includes the maintenance of a written procurement policy /procedure, and actual sample of process to determine issuance and publicizing of RFP, number of proposals received, evaluation criteria and procedure, use of sealed bid process, and the actions taken to solicit proposals from minority /women -owned businesses and local residents. Contracts Management Includes sampling of contracts to determine if all appropriate HUD required language /references are included, such as Title VI and Title VIII of the Civil Rights Act, Americans with Disabilities Act, Copeland Anti - Kickback Act, Davis -Bacon Act, etc. Also review of bid guarantee, performance /payment bond requirements, and wage rate determination. Programmatic Evaluation Includes review of the internal evaluation plan for the achievement of project goals, maintenance of necessary Environmental Review file, maintenance of Labor Standards records, maintenance of Section 3 records, and EEO, Affirmative Action, Fair Housing plans /policies. Acquisition and Relocation If real property was acquired were proper URA guidelines followed and appropriate documentation maintained. Page 19 of 20 Exhibit E Certifications Page 20 of 20 CERTIFICATION REGARDING LOBBYING Name of Recipient: CITY OF MIAMI BEACH Name of Sub - recipient: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION Grant Program Name: HOME INVESTMENT PARTNERSHIP PROGRAM Grant Number: M- 10 -MC -12 -0212 The undersigned certifies, to the best of his or her knowledge and belief, that: 1. 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. MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION Signature Date 1 1 l 6 Roberto Datorre S ‘. Print Name of Authorized Signatory Print Title of Authorized Signatory Page 1 of 1 CERTIFICATION REGARDING DRUG -FREE WORKPLACE REQUIREMENTS Name of Recipient: CITY OF MIAMI BEACH Name of Sub - recipient: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION (MBCDC) Grant Program Name: HOME INVESTMENT PARTNERSHIP PROGRAM Grant Number: M- 10 -MC -12 -0212 The Provider shall insert in the space provided below the site(s) expected to be used for the performance of work under the grant covered by the certification: Place of Performance (include street address, city, county, state, zip code for each site): 4i0/ / ?i 4r /7s /w/ht/r/ , a»4 - 4'*'2 y ,mot 3 3/ 3 7 MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION 4(. Si Date Roberto Datorre Print Name of Authorized Signatory Print Title of Authorized Signatory Page 1 of 1 ACKNOWLEDGEMENT OF DISABILITY NONDISCRIMINATION AFFIDAVIT CONTRACT REFERENCE HOME CONTRACT Fiscal Year 2010/2011 NAME OF FIRM, CORPORATION, OR ORGANIZATION: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION ( MBCDC) AUTHORIZED AGENT COMPLETING AFFIDAVIT Roberto Datorre POSITION President, MBCDC PHONE NUMBER (305) 538 -0090 I, Roberto Datorre_, 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, Employment; Tittle II, Public Services; Title III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S.C. Section 794. The Federal Transit Act, as amended: 49 U.S.C. Section 1612. The Fair Housing Act as amended: 42 U.S.C. Section 3601 -3631. Signature .■■ Date SUBSCRIBED AND SWORN TO (or affirmed) before me on 3' / 6 — 1 l by (Date) 0 6 .p f b q TO L IL P . He /She is personally known to me or has (Affiant) presented /U /4 as identification. (Type of identification) / 4109 - MAGDA C. SANTISO Sign. ture of Notary) t tar Public Bhq of fMri/s l Cah lon E Murk k 201 �7 4t C� d 4 • 'r5-i) ri d — � ° commission s► DD 757741 , o Bonded ThrouOM N�OrMINoMnA�M (Print or Stamp Name of Notary) Notary Public (State) Notary Seal The City of Miami Beach will not award a contract to any 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 file with the City of Miami Beach. Page 1 of 1 CERTIFICATION Name of Recipient: CITY OF MIAMI BEACH Name of Sub - recipient: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION (MBCDC) Grant Program Name: HOME INVESTMENT PARTNERSHIP PROGRAM Grant Number: M- 10 -MC -12 -0212 The undersigned certifies, to the best of his or her knowledge and belief, that: 1. All construction or rehabilitation plans and specifications for the project must be approved by the City's departments of Planning, Public Works, Fire and Building, and by the City's divisions of Community Development and Code Compliance. 2. If the project is 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. 3. The Sub - Recipient certifies that it intends to comply with efforts to identify, evaluate and appropriately condition project activities to avoid, minimize or mitigate adverse project impacts to any properties listed, or which satisfy the criteria of eligibility for listing (36 CFR 60.4), in the National Register of Historic Places. 4. Name and telephone number of individual designated to fulfill these conditions (include street address, city, county, state, zip code and area code): 1 ..4'rvZO baton /% 7 4 c a tbLm6.i f,J' 1-65" t '5-ig f 39r 53T av4o 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 requiremen tained in this document. ( b1�� Signa Date Roberto Datorre Titb,&:t Print Name of Authorized Signatory Print Title of Authorized Signatory Page 1 of 1