Amendment 6 to NSP1 Agreement q3
AMENDMENT AMENDMENT NO. 6
TO
NEIGHBORHOOD STABILIZATION PROGRAM 1 (NSP1) AGREEMENT, DATED
JANUARY 27, 2010, BETWEEN CITY OF MIAMI BEACH, FLORIDA AND MIAMI
BEACH COMMUNITY DEVELOPMENT CORPORATION
THIS AMENDMENT NO. 6 TO NEIGHBORHOOD STABI IZATION PROGRAM 1
(NSP1) AGREEMENT is entered into this dayof F u 2012, by
and between the CITY OF MIAMI BEACH, a Florida municipal Corp ation, having its
principal office at 1700 Convention Center Drive, Miami Beach, Florida, (City), and MIAMI
BEACH COMMUNITY DEVELOPMENT CORPORATION, a Florida not - for - profit
corporation, having its principal office at 945 Pennsylvania Avenue, Miami Beach, Florida
33139 (MBCDC or Developer).
WITNESSETH:
WHEREAS, on July 31, 2009, pursuant to the City's application for same authorized
under Resolution No. 2009 - 27039, the City was awarded a grant under the NSP1 Program,
in the amount of $2,549,551, and, accordingly, on November 24, 2009, the City entered into
an NSP1 Grant Agreement with the State of Florida Department of Community Affairs
(DCA); and
WHEREAS, as authorized pursuant to Resolution No. 2009 - 27194, the City entered
into an NSP1 Agreement with Developer (as the sole responsive proposer pursuant to a City
issued Request for Proposals for potential NSP1 funded projects), dated January 27, 2010,
in the amount of $2,376,181.53, for funding related to Developer's acquisition and
rehabilitation of a sixteen (16) unit residential property located at 7871 Crespi Boulevard,
Miami Beach, Florida (the Crespi Project), with any remaining funds to be utilized for the
"Secondary Objective Project —Home Ownership Activities;" and
WHEREAS, on February 3, 2010, pursuant to Resolution No. 2010 - 27335, the City
was authorized to execute subsequent amendments to the NSP1 Agreement with
Developer, for any additional NSP1 funds which might be granted pursuant to the City's
requests; and
WHEREAS, on February 3, 2010, pursuant to Resolution No. 2010 - 27348, the City
was authorized to enter into and execute Amendment No. 1 to the NSP1 Agreement with
Developer, approving a transfer in the ownership of the Crespi Project from MBCDC, to
MBCDC: Madeleine Village, LLC, a Florida limited liability corporation whose sole member
and agent is MBCDC; and
WHEREAS, on March 24, 2010, the City was awarded an additional allocation of
NSP1 funds, in the amount of $4,755,717, and, accordingly, executed Modification No. 1 to
the November 24, 2009 NSP1 Grant Agreement with DCA; and
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WHEREAS, on March 30, 2010, City and Developer executed Amendment No. 2 to
the Developer's NSP1 Agreement, to identify and include the Neptune Project, and to
identify the additional NSP1 funding being allocated for said project, in the amount of
$4,679,226.78; and
WHEREAS, on July 1, 2010, the City was awarded an additional allocation of
$2,000,000 in recaptured NSP1 funds, and, accordingly, executed Modification No. 2 to the
November 24, 2009 NSP1 Grant Agreement with DCA; and
WHEREAS, on March 3, 2010, Developer entered into a contract for purchase and
sale of the Lottie Apartments, a nine (9) unit residential property, located at 530 75 Street,
Miami Beach, Florida, for a purchase price of $1,185,000; and
WHEREAS, on July 22, 2010, City and Developer executed Amendment No. 3 to
Developer's NSP1 Agreement, to identify and include the Lottie Apartments Project, and to
identify the additional NSP1 funding being allocated for said Project, in the amount of
$1,864,000.00 for the acquisition and rehabilitation; and
WHEREAS, on September 17, 2010, City and Developer executed Amendment No.
4 to Developer's NSP1 Agreement, to transfer ownership of the Lottie Apartments from
MBCDC, to MBCDC: Lottie Apartments, LLC, a Florida limited liability corporation whose
sole member and agent is MBCDC; and
WHEREAS, on May 11, 2011, pursuant to Resolution No. 2011 - 27657, City was
authorized to enter into and execute Amendment No. 5 to the NSP1 Agreement with
Developer, extending the Term through March 1, 2013; and
WHEREAS, current economic and banking conditions have restricted MBCDC's
ability to draw down on its lines of credit, and have delayed completion of the contractually
required activities; and
WHEREAS, Developer has requested that the City modify its reimbursement
procedures to facilitate draw down requests; and
WHEREAS, on June 23, 2011, the revised Policies and Procedures for Draw Downs
were presented to, and accepted by, the City's Finance & Citywide Projects Committee, and
subsequently approved by City Commission pursuant to Resolution No. 2011 - 27693;
accordingly, the City and MBCDC wish to enter into this Amendment No. 6 to the NSP1
Agreement with Developer, memorializing such Policies and Procedures.
NOW THEREFORE, in consideration of the mutual promises contained herein, City
and Developer hereby amend the NSP1 Agreement, dated January 27, 2010, as follows:
1. A new Section 28, entitled "Policies and Procedures for Draw Downs," and an
accompanying Attachment 1, are added to the Agreement as follows:
Section 28. Policies and Procedures for Draw Downs: The Recipient shall be
allowed to draw funds in accordance with the "City's Policies and
Procedures: Construction Draw Down Payment Methodology." as
approved by the City pursuant to Resolution No. 2011- 27693, and as
attached and incorporated as Attachment I hereto.
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2. All other terms and conditions of the NSP1 Agreement (as amended) shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 6 to NSP1
Agreement as of the date first written above.
MIAMI BEACH COMMUNITY
DEVELOPMENT CORPORATION
ATTEST: a Florida not - for - profit corporation
S e dry obe o atorre
President, Authorized Signatory
ATTEST: CITY OF MIAMI BEACH
a Florida Municipal Corporation
City Clerk M or
F:IRHCDI$ALLIHSG- CDIALLINSP 11MBCDC Correspondence\Amendments\NSP1 AMENDMENT 6 DRAW DOWN rev. 1.doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
i OR1 Dat9
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ATTACHMENT I
MIAMI BEACH
Office of Real Estate, Housing and Community Development
POLICIES AND PROCEDURES:
CONSTRUCTION DRAW DOWN PAYMENT METHODOLOGY
Rev. 07/14/11
I. POLICY: The Real Estate, Housing and Community Development Office ( REHCD) will ensure
compliance with Federal requirements for payment requests on all City- approved US HUD -
funded capital projects as already established per US HUD HOME Program Rules. The
methodology for payment of US HUD funds for a construction project shall be determined by
the City in full compliance with HUD rules. In the event that a "draw down" methodology is
approved, the following procedures shall be followed.
II. DEFINITIONS:
a. Project: a site or sites together with any building or buildings located on the site(s), which
has been allocated state or federal grant funds and which has been approved by the
funding agency and by the City Commission. The City will have entered into a contractual
agreement, in compliance with grant rules, with a Sub - recipient to be assisted with HUD
funds. Projects will only be eligible for draw downs if a Scope of Work, Budget for Scope
of Work, and a Draw Down Schedule for reasonable and necessary work (as defined by
HUD) has been attached and made part of the grant agreements between the City and the
Sub - recipient. The "Project" includes construction and /or rehabilitation of HUD - qualifying
properties, and may also include design, permitting, and other HUD - approved activities
and costs necessary to achieve the objectives of the grant and which have been defined in
the grant agreement.
b. Sub - recipient: the entity, such as the developer, under contract with the City to receive
funding pursuant to federal or state HUD program rules, guidelines and eligible activities.
c. General Contractor (GC): the entity under contract with the Sub - recipient that is performing
construction or rehabilitation services on the project on behalf of the Sub - recipient
d. Construction Consultant: an independent third party (e.g. architect, engineer, contractor,
etc.) who will review all Application and Certification for Payment requests and conduct
construction draw administration and conduct inspections and provide construction
progress reports as necessary.
e. Draw down: For purposes of this policy, this refers to a payment request submitted by a
Sub - recipient for a project for expenses incurred by their GC or other contractors in the
development of that project, including change order reimbursement requests.
III. REQUIRED DOCUMENTATION:
REHCD shall require the following documentation to be provided by the Sub - recipient for each
draw -down request submitted to the Office:
a. Application and Certification for Payment AIA Document G702 and G703 (Schedule of
Values) signed by the contractor and architect, and notarized.
b. Any change orders or deviations from the original Scope of Work or Budget for Scope of
Work will require City Manager approval and will be submitted on an Application and
Certification for Payment AIA Document G701, signed by the contractor and architect, and
notarized.
c. Lien waivers from each GC, contractor, and /or subcontractor for the funds being requested
will be submitted with the Application and Certification for Payment.
d. Verification of payment of Davis -Bacon Wages and other labor standards, including
original, signed payroll certificates for previous work completed.
e. Quarterly construction status reports (submitted by Sub - recipient within ten (10) business
days following end of quarter).
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IV. PROCESSING OF DRAW DOWN REQUESTS
a. REHCD shall review the draw down request package to ensure it includes all of the
required documents and the required signatures.
b. REHCD shall confirm that the Sub - recipient is current in their quarterly reporting prior to
processing any payment for a draw down request. If the Sub - recipient is not current on
their quarterly construction status reports, the Sub - recipient shall be notified in writing. If
the required quarterly construction status report is not submitted prior to the completion of
the review of the draw down, REHCD shall withhold payment of that draw down request
until such time as the report is received.
c. All draw down requests shall be date stamped upon receipt in REHCD and the draw down
request shall be forwarded to the REHCD staff responsible for contract management for
the related grant agreement.
d. REHCD shall review the draw down request and provide comments, notations and
recommendations on the funding request, including review of the back -up documentation
provided to ensure documentation is consistent with the Scope of Work, Budget for Scope
of Work, and Draw Down Schedule attached to the grant agreement. REHCD may conduct
a site visit or request additional documentation or information as part of this review.
e. REHCD will provide the selected Construction Consultant with the Sub - recipient's draw
package and AIA forms for review.
f. Construction Consultant shall review the draw request, conduct site inspections to verify
completion of the work and adherence to the contractually approved Scope of Work,
Budget for Scope of Work, and Draw Down Schedule, and verify compliance with codes
and building standards and requirements.
g. Construction Consultant shall produce a report providing their professional opinion and
recommendation on the draw request submitted, including any recommendations for
modifications or specific exceptions.
h. REHCD shall review the Construction Consultant's recommendations and develop a
request for payment through the City's Finance Department. The Construction Consultant's
report and recommendations, as well as Staff's recommendations should they differ from
the Construction Consultant, shall be referenced in the documentation submitted to the
Finance Department with the payment request. If the payment request is less than the
original draw down request, REHCD shall notify the Sub - recipient, in writing, that an
adjustment has been made to the draw down request, the dollar value of the adjustment
and why the adjustment was made. The Sub - recipient may re- submit disallowed expenses.
i. Prior to payment of final draw down request, the Construction Consultant shall conduct a
closeout inspection(s). REHCD will process the final draw down payment request after
receipt and review of the Construction Consultant's final report and receipt of a copy of the
Certificate of Occupancy.
j. Sub - recipient must provide REHCD with proof of deposit of the draw down payment
reflecting that the deposit was made within five (5) business days after payment was made
to the Sub - recipient by the City.
k. Within ten (10) business days following the deposit of the draw down payment, the Sub -
recipient must provide REHCD with a copy of a cashed check(s) evidencing full payment
from Sub - recipient to the contractor(s) for the services and goods provided, as reflected in
the draw down request. Failure to provide a cancelled check(s) shall result in the
withholding of any future draw down request payments.
V. PROJECT DRAW DOWN REQUEST TRACKING
a. REHCD shall note in the project ledger the date of the receipt of the draw down
reimbursement request; which draw down number request was submitted; whether the
request is a change order and, if so, what change order number it is; the amount
requested; the final amount paid to the Sub - recipient following review of the draw down
request; and confirmation of receipt of the cancelled check from the Sub - recipient to the
contractor(s).
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VI. OTHER
In all other regards relating to monitoring and inspection of the Sub - recipient's project
implementation, REHCD shall follow the guidance on Inspections and Specifications -
Management Perspectives, per Chapter 7, Effective Construction Management, pages 7/14-
16, of the HOME Certified Specialist - Administration Training Manual, dated August 2008
(three pages attached).
The City shall have the right to audit project records or inspect the project site, as needed,
upon reasonable notice to the Sub - recipient.
VII. TERMINATION
In the event that an audit review of a draw down request identifies material discrepancies in
the draw down request, then Sub - recipient shall be provided a 30 -day recourse period to
submit the necessary documentation consistent with the scope of work to clarify or correct the
discrepancy. If after the 30 -day recourse period the material discrepancy was not remedied to
the satisfaction of the audit reviewers, then the draw down provision shall be immediately
terminated.
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