Consent to Assignment and Assumption from MBCDC: THE LONDON LLC 9 0/46 .2 j5_06,
CONSENT TO ASSIGNMENT AND ASSUMPTION
FROM MBCDC: THE LONDON LLC ("ASSIGNOR") TO THE CITY OF MIAMI
BEACH, FLORIDA ("ASSIGNEE") WITH RESPECT TO THE FY 2009
COMMUNITY DEVELOPMENT BLOCK GRANT BETWEEN MBCDC: THE
LONDON LLC AND MIAMI-DADE COUNTY ("THE MDC BLOCK GRANT")
This Consent to Assignment and Assumption ("Consent") is entered into this
10`-' day of OlW d4 , 2014 ("Effective Date"), by and among
MBCDC: THE LONDON LLC, a Florida limited liability company ("Assignor"),
whose sole manager and member is Miami Beach Community Development
Corporation, Inc., a Florida not-for-profit corporation, and whose address is 945
Pennsylvania Avenue, Miami Beach, Florida 33139, and the CITY OF MIAMI
BEACH (the "City" or "Assignee"), a Florida Municipal Corporation, whose address is
1700 Convention Center Drive, Miami Beach, Florida 33139, with respect to that certain
Agreement between Assignor and Miami-Dade County, Florida (the "County"), dated as
of June 26, 2009, a copy of which is attached hereto as Exhibit "A" ("MDC Block Grant"
or "Agreement"), in connection with the rehabilitation of property located at 1965 and/or
1975 Washington Avenue, Miami Beach, Florida ("Restoration Project").
NOW, THEREFORE, the Assignor and the City, for and in consideration of the
mutual covenants, agreements and undertakings herein contained, the receipt and
sufficiency of which are hereby acknowledged, do by these presents mutually covenant
and agree to the assignment and assumption of the Agreement, as follows:
1. Assignor hereby consents to the assignment of the MDC Block Grant to
Assignee ("Assignment"), subject only to approval of the proposed
Assignment to Assignee by the Board of County Commissioners of Miami-
Dade County, Florida.
2. Assignor and Assignee mutually agree to cooperate with each other and
Miami-Dade County (the "County"), in connection with any and all
documents required in order to obtain the County's consent to and to
effectuate this Assignment to the City and Assumption by the City of said
MDC Block Grant.
3. Upon approval of the proposed assignment by the County, and execution
by the parties of this Consent, Assignee hereby further agrees to be
bound by the terms and conditions of the MDC Block Grant.
4. Should it become necessary for either party to enforce this Consent, the
other party shall be responsible for any and all reasonable costs and
reasonable attorney's fees incurred by the enforcing party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Consent to Assignment and Assumption
MBCDC: The London LLC to the City
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their appropriate officials, as of the date first entered above.
FOR ASSIGNOR:
ATTEST: MBCDC: THE LONDON LLC,
a Florida limited liability company
By: Miami Beach Community
Development Corporation, Inc.,
its sole member and manager
By:
Denis A. Russ, Assistant Secretary Abk John 96-16, Chairman
FOR ASSIGNEE:
ATTEST: CITY O MIAMI BE H, FLORIDA
By:
Rafael Graff Jimmy rales
City Clyec'q ,M city ager
�. .
r nor--� `
:I'� 0 RP ORATED=
F:/RHCD/$ALL/ECON LODON HOUSE/CONSENT TO ASSIGNMENT FOR FY2009 CDBG
APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
2 14-
Attor, Date
EXHIBIT
Community&Economic Development
701 N.W. 1 st Court- 14th Floor
a
N. Miami, Florida 33136
=p 7 786-469-2100 F 786-469-2236
Carlos Alvarez, Mayor miamidade.gov
June 29, 2009
Mr. Roberto Datorre
President/CEO -
Miami Beach Community
Development Corporation, Inc.
945 Pennsylvania Avenue
Miami Beach, Florida 33139
Re: FY09 CDBG Contract— IVIBCDC: The London LLC - $408,482
Dear Mr. Datorre:
I am pleased to enclose a fully executed counterpart of the fiscal year 2009 CDB
G
Contract with your organization. The contract provides funding in the amount of
$408,482, for the rehabilitation of the London, providing thirty-three (33) units of low-
income rental housing.
If you have any questions, please call me at (786) 469-2133.
Sincerely,
Richard Hoberman
Contracts Officer
Enclosure
CDBG 2009 FY 2009 COMMUNITY DEVELOPMENT BLOCK GRANT
Non-Profit CONTRACT BETWEEN
MIAMI-DADE COUNTY
AND
MBCDC: The London LLC
This contract is entered into between Miami-Dade County,hereinafter referred to as the"County"and
MBCDC: The London LLC,a Florida nonprofit orgnization,hereinafter referred to as the"Awardee."
The parties agree:
I. Definitions
OCED Office of Community and Economic Development or its successor
Department
24 CFR Part 570-CDBG Federal regulations implementing Title I of the Housing and
Community Development Act of 1974, as amended - Community
Development Block Grant
Community Development A local agency that is organized to meet community development
Corporation needs with particular emphasis on the economic development,
housing and revitalization needs of low-and moderate-income area
residents and which is receptive to the needs expressed by the
community.
Low-and Moderate-Income Person A member of low-and moderate-income family i.e., a family whose
income is within specified Income limits set forth by U.S.HUD.
Contract Records Any and all books, records, documents, information, data, papers,
letters,materials,electronic storage data and media whether written,
printed, electronic or electrical, however collected, preserved,
produced, developed, maintained, completed, received or compiled
by or at the direction of the Awardee or any subcontractor in
carrying out the duties and obligations required by the terms of this
contract, including but not limited to financial books and records,
ledgers, drawings, maps, pamphlets, designs, electronic tapes,
computer drives and diskettes or surveys.
Federal Award Any federal funds received by the Awardee from any source during
the period of time in which the Awardee Is performing the
obligations set forth in this contract.
Awardee Recipient of CDBG funds from Miami Dade County.
Any individual or firm hired on a contractual basis by the Awardee
Subcontractor for the purpose of performing work or functions cited on the Action
Step Format(Attachment"A)of this contract.
Subcontract Any contractual agreement between a Subcontractor and the
Awardee.
11. The Awardee Agrees:
A. The Awardee shall carry out the activities specified In Attachment A,"Scope of Services,"in
the County or the focus area(s)of Dade.
6. Idemnification and Insurance Requirements
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I!. The Awardee Agrees:
A. The Awardee shall carry out the activities specified in Attachment A, "Scope of
Services,"in the County or the focus area(s)of Dade.
B. Idemnification and Insurance Requirements
The Awardee shall comply with the idemnification and insurance requirements
outlined in Attachment B-1 of this agreement. All certificates and insurance
updates must identify the names of the Awardee and the activity being funded
through this agreement.
Upon OCED's notification, the Awardee shall, furnish to Miami-Dade County,
Department of Procurement Management, RFP Section, 111 N.W. 1st Street, Suite
1300, Miami, Florida 33128-1974, Certificates of Insurance that indicate that
insurance coverage has been obtained which meets the requirements outlined in
Attachment D-1 of this agreement.
AWARDEE LIABILITY OBLIGATION
Compliance with the requirements in Attachment B-1 shall not relieve the Awardee
of his liability and obligation under this subsection or under any subsection of this
contract. The contract is contingent upon receipt of the insurance documents
within fifteen (15) calendar days after the Board of County Commissioners'
approval. If the Insurance Certificate is received within the specified period, but
not in the manner prescribed in these requirements, the Awardee shall be verbally
notified of the deficiency and shall have an additional five (5) calendar days to
submit a corrected certificate to the County.
If the Awardee fails to submit the required insurance documents in the manner
prescribed in these requirements within twenty (20) calendar days after the Board
of County Commissioners' approval, the Awardee shall be in default of the terms
and conditions of the contract.
The Awardee shall submit all required insurance documents to the Office of
Community Development, 701 N.W. 1ST 14th floor, Miami, FL 33136. Any changes to
the required insurance policies, including coverage renewals, must be submitted to
OCED through a formal notice immediately upon occurrence throughout the
contract period.
CERTIFICATE OF CONTINUITY
The Awardee shall be responsible for ensuring that the insurance certificates
required in conjunction with this subsection remain in force for the duration of the
contract period, including any and all option years, if applicable. In the case of
construction and major rehabilitation activities, the Awardee must have the
coverage cited in Attachment B-1 of this agreement at the time that it begins
construction on the project. If the insurance certificates are scheduled to expire
during the contract period,the Awardee shall be responsible for submitting new or
renewed insurance certificates to the County at a minimum of thirty (30) calendar
days before such expiration.
In the event that expiration certificates are not replaced with new or renewed
certificates that cover the contract period, the County shall suspend the contract
until the new or renewed certificates are received by the County in the manner
prescribed in the requirements; provided, however, that this suspended period
does not exceed thirty (30) calendar days. If such suspension exceeds thirty (30)
calendar days, the County may, at its sole discretion, terminate the contract for
cause.
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understands and agrees that any insurance .protection required by this Agreement or
otherwise provided by the Awardee shall in no way limit the responsibility to indemnify,
keep and save harmless and defend the County or its officers, employees, agents and
instrumentalities as herein provided. The provisions of this section survive the termination
or expiration of this agreement
D. Documents
The Awardee shall submit documents to OCED as described below or any other document
in whatever form, manner, or frequency as prescribed by OCED. These will be used for
monitoring progress, performance, and compliance with this contract and for compliance
with applicable County and Federal requirements.
1. Certificates of Insurance-
The original to be received by OCED within the first month of this contract period,
and submitted with each payment request, including any renewals, prior to
payments made by the County. The effective date of the coverage must coincide
with the beginning date of this agreement.
O Worker's Compensation Insurance for all employees of the Awardee as
required by Florida Statute 440.
Public Liability Insurance on a comprehensive basis in an amount not less than
$300,000 combined single limit per occurrence for bodily injury and property
damage. Miami-Dade County/OCED must be shown as an additional insured
with respect to this coverage.The mailing address of the Office of Community
and Economic Development, as the certificate holder, must appear on the
certificate of insurance.
O Automobile Liability Insurance covering all owned, non-owned, and hired
vehicles used in connection with the Services, in an amount not less than
$300,000 combined single limit per occurrence for bodily injury and property
damage.
® Professional Liability Insurance in an amount not less than $250,000 with a
deductible per claim not to exceed ten percent(10%)of the limit of liability.
2. Progress Reports
a. The Awardee shall submit a status report using the form attached hereto
as Attachment C, "Progress Report,"as it may be revised by OCED, which
shall describe the progress made by the Awardee in achieving each of the
objectives and action steps identified in Attachment A, "Scope of
Services."
The Awardee shall ensure that ACED receives each report in triplicate (or
as indicated) no later than April 10, 2009, July 10, 2009, October 9, 2009
and January 8,2010.
b. Quarterly Reporting when Subcontractors are Utilized
Awardees are advised that when subcontractors or subconsultants are
utilized to fulfill the terms and conditions of this contract, Miami-Dade
County Resolution No. 1634-93 will apply to this contract. This resolution
requires the selected Awardees to file quarterly reports as to the amount of
contract monies received from the County and the amounts thereof that
have been paid by the Awardec directly to Biacn, Hispanic and Women-
Owned businesses performing part of the contract work.
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Additionally, the listed businesses are required to sign the reports,
verifying their participation in the contract work and their receipt of such
monies. For purposes of applicability, the requirements of this resolution
shall be in addition to any other reporting requirements required by law,
ordinance or administrative order.
The Awardee shall submit to OCED a cumulative account of its activitles
under this agreement by completing the following portions of the Progress
Report Form:
Section I-Status of Contracted Activities:
The Awardee must report specific information regarding the status of the
contracted activities, including accomplishments and/or delays
encountered during the implementation of the project and an unduplicated
count of clients served during the reporting period (if applicable)for each
federally defined ethnic category. Awardees engaged in construction
and/or housing rehabilitation projects shall report on the progress of their
activities including the number of housing units completed and occupied
by low-moderate and low income residents.The Awardee shall also report
demographic information on each head of household. Each goal and
corresponding objective(s), as indicated in the approved Scope of
Services,must be addressed as part of this report.
Section II-Fiscal Information:
The Awardee must report expenditure information based on approved
budgeted line items to reflect all costs incurred during the reporting
period.In addition,the Awardee shall report on Program Income Usage for
each contracted activity.
Section III-Contract and Subcontract Activity Report:
Contract and Subcontract Activity Report(First and Third Quarter Progress
Report) - The Awardee shall report to OCED the number of business
activities involving minority vendors, including subcontractors performing
work under this Agreement. The "Contract and Subcontract Activity
Report" Section in Attachment C, and when applicable Section 3 in the
same Attachment shall be completed semiannually by the Awardee and
submitted to OCED no later than April 10,2009 and October 9,2009.
Section IV-Neighborhood Employment Opportunities:
Neighborhood Employment Opportunities Report (First and Third Quarter
Progress Report)-The Awardee shall report to OCED the number of target
and service area residents who have received employment opportunities
from federally financed and assisted projects and activities.
The Neighborhood Employment Opportunities Report shall be submitted
using the Progress Report Form attached hereto as a Section In
Attachment C, as it may be revised. This section of the form shall be
completed semiannually by the Awardee and submitted to OCED no later
than April 10,2009 and October 9,2009.
The Awardee shall submit to the County, in a timely manner, any other
information deemed necessary by the County, and its presentation shall
comply with the format specified at the time of the request. Failure to
submit the Progress Reports or other information in a manner satisfactory
to the County uy the due date shall render the,",wardee in noncompliance
with this Article. The County may require the Awardee to forfeit its claim to
payment requests or the County may invoke the termination provision in
this Contract by giving five days written notice of such action to be taken.
I
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C. Unspecified Site(s) Objective - if the Awardee has not yet identified a
location to carry out any of the activities described in Attachment A, the
Awardee shall submit, in triplicate, Progress Reports, using the form
attached hereto as part of Attachment C, on a monthly basis until such
time as the Awardee complies with the provisions contained within Section
11, Paragraph DA.of this contract Copies of the above described Progress
Report shall be received by OCED no later than the tenth (10th) business
day of each month and shall address the progress undertaken by the
Awardee during the previous month. This Progress Report shall not be
required if the Awardee is submitting the Progress Reports required by
Section 11,Paragraph D.2.a and Paragraph 13.3.
3. Annual Report (Fourth Quarter Progress Report)-The Awardee shall
submit a cumulative status report (hereinafter referred to as "Annual
Report") using the "Progress Report" specified in Section 11, Paragraph
D.2.a. above, which shall describe the progress made by the Awardee in
achieving each of the objectives identified in Attachment A during the
previous year. The "Annual Report" must cover the CDBG fiscal year of
January 1,2009 through December 31, 2009 and shall be received by OCED
no later than January 6,2010.
4. Environmental Review - The Awardee immediately upon locating or
determining a site for each of the"Unspecified Site"activities to be carried
out pursuant to this contract, shall submit information detailing the
location of each site for which a Site Environmental Conditions Statement,
will be prepared as described in Article 11, Section E.5. of this contract as
set forth below. The Environmental Review is to be prepared on
information contained in Attachment D, "Information for Environmental
Review Form."
Notwithstanding any provision of this Agreement, the parties hereto agree
and acknowledge that this Agreement does not constitute a commitment of
funds or site approval, and that such commitment of funds or approval
may occur only upon satisfactory completion of environmental review and
receipt by the County of a release of funds from the U.S. Department of
Housingand Urban Development under 24 CFR Part 58.The parties further
agree that the provision of any funds to the project is conditioned on the
County's determination to proceed with,modify or cancel the project based
on the results of a subsequent environmental review.
5. Audit Report-The Awardee shall submit to OCED an annual audit report in
triplicate as required by Section 11, Paragraph K of this contract, as set
forth below. The Awardee shall submit a written statement from its
auditing firm to confirm that it has cleared any non-compliance issues
stated in the audit, and a written statement from the Auditor that the audit
complies with all applicable provisions of 24 CFR Part 84.26, Part 85.26 and
OMB A-133.
6. Personnel Policies and Administrative Procedures - The Awardee shall
submit detailed documents describing the Awardee's internal corporate or
organizational structure, property management and procurement policies
and procedures, personnel management, accounting policies and
procedures, etc. Such information shall be submitted to OCED within 30
days of the execution of this contract.
7. Inventory Report - The Awardee shall report annually all nonexpendable
personal and real property purchased with CDBG funds from this and
previous agreements with tike County as specified in Section 1111, Paragraph
T of this contract.
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8. Affirmative Action Plan - The Awardee shall report to OCED information
relative to the equality of employment opportunities whenever so
requested by OCED.
Awardee must achieve must achieve the following national objective;
To benefit low-and moderate-income persons;
1. For activities designed to meet the national objective of benefit to low-and
moderate-income persons, the Awardee shall ensure and maintain
documentation,acceptable to OCED in its sole discretion that conclusively
demonstrates that each activity assisted in whole or in part with CDBG
funds is an activity which provides benefit to persons where no Jess than
51%of of those benefitted are low-and moderate-income persons.
2. The Awardee shall comply with all applicable provisions of 24 CFR Part 570
and shall carry out each activity in compliance with all applicable federal
laws and regulations described therein. If the Awardee is a primarily
religious entity,it shall comply with all provisions of 24 CFR 570.200(j).
3. The Awardee agrees to comply with (a)the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970,as amended(URA),and
implementing regulations at 49 CFR Part 24 and 24 CFR 570.606(b): (b)the
requirements of 24 CFR 570.606(c) governing the Residential
Antidis placement and Relocation Assistance plan under section 104(d) of
the HCD Act; and (c) the requirements in 570.606(d) governing optional
.relocation policies. (The County may preemept the optional policies).The
Awardee shall provide relocation assistance to persons (families,
individuals, businesses, non-profit organizations and farms) that are
displaced as a direct result of acquisition, rehabilitaion, demolition or
conversion for a CDBG assisted project. The Awardee also agrees to
comply with applicable County ordinances, resolutions and policies
concerning the displacement of persons from their residences.
4. For each activity or portion of activity described In Attachment A hereto for
which a location has not yet been identified, the Awardee shall obtain,
immediately after a site is identified by the Awardee, OCED's written
environmental clearance statement and shall agree in writing to comply
with any and all requirements as may be set forth in the Site Environmental
Clearance Statement.
5. The Awardee shall cooperate with OCED in informing the appropriate
CDBG citizen participation structures, including the appropriate area
committees, of the activities of the Awardee in adhering to the provisions
of this contract. Representatives of the Awardee shall attend meetings of
the appropriate committees and citizen participation structures, upon the
request of the citizen participation officers,OCED,or the County.
6. The Awardee shall make a good faith effort to address the concerns of the
residents of the affected area. The Awardee shall cooperate with OCED in
informing the appropriate CDBG citizen participation structures, including
the appropriate area committees, of the activities of the Awardee in
adhering to the provisions of this contract. Representatives of the
Awardee shall attend meetings of the appropriate committees and citizen
participation structures, upon the request of the citizen participation
officers,OCED,or the County.
7, For activities involving acquisition, rehabilitation and/or demolition of
property and which require the relocation of families, individuals,
businesses and/or industries, the Awardee shall submit a written
notification to the Community Outreach and Real Estate Section of OCED
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prior to relocating, evacuating, and/or dispersing any and all legal
occupants who reside at this property on the basis of a long or short term
lease.When the legality of an occupant(individual,family,business,and/or
industry) is in question, the Awardee shall contact the above mentioned
unit prior to making a determination. Awardees receiving CDBG funds
shall adhere to 24 CFR part 50 and/or part 58 and to the rules and
regulations of the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970, as amended.The Awardee shall adopt Affirmative
Marketing Procedures and requirements for CDBG assisted projects.
These procedures must consist of actions to provide information and
attract eligible persons from all racial, ethnic and gender groups to the
available services. The Awardee shall annually assess its affirmative
marketing program to determine if the procedures used to comply with the
requirements specified in Public Law 88-352 and Public Law 90-284
successfully meet these requirements. The Awardee shall submit to OCED
its Affirmative Marketing Plan no later than 60 days from the date this
Agreement is executed.
8. For Housing,Rehabilitation,and Construction activities all conditions
in this section will apply throughout the regulatory period identified
In the national objective.Throughout that period,the Awardee will be
required to submit an annual report regarding his compliance with
the national objective,and OCED will have the right to monitor the activity.
9. The Awardee shall comply with all applicable uniform administrative
requirements as described in 24 CFR 570.502
F. Lobbying Prohibition
1. The Awardee shall certify 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 an employee of a Member of
Congress in connection with the awarding of any federal Agreement,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 Agreement,grant,loan,or cooperative Agreement.
2. The Awardee shall disclose to OCED 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 an employee of a Member of Congress in connection
with this federal Agreement, grant, loan, or cooperative Agreement, on a Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions.
3. The Awardee shall ensure that the language in this Section II, Paragraph F.1. and
F.2 be included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and Agreements under grants, loans, and cooperative
Agreements) and to ensure that all subrecipients shall certify and disclose
accordingly in connection with this activity.
G. Federal,State,and County Laws and Regulations
1. RULES, REGULATIONS AND LICENSING REQUIREMENTS
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The Awardee shall comply with all laws, ordinances and regulations applicable to
the services contemplated herein, especially those applicable to conflict of interest
and collusion. Awardees are presumed to be familiar with all Federal, State and
local laws, ordinances,codes, rules and regulations that may In any way affect the
goods or services offered, especially Executive Order No. 11246 entitled "Equal
Employment Opportunity" and as amended by Executive Order No. 11375, as
supplemented by the Department of Labor Regulations (41 CFR, Part 60), the
Americans with Disabilities Act of 1990 and implementing regulations, the
Rehabilitation Act of 1973, as amended, Chapter 553 of Florida Statutes and any
and all other local,State and Federal directives,ordinances, rules,orders,and laws
relating to people with disabilities. The Awardee will also comply with OMB A-122,
OMB A-110,OMB A-21,OMB A-133,and with the applicable procedures specified in
OCED's Contract Compliance Manual,which are incorporated herein by reference,
receipt of which is hereby acknowledged,and as they may be revised.
2. The Awardee shall comply with Section 504 of the Rehabilitation Act of 1973, as
amended, which prohibits discrimination on the basis of handicap; Title VI of the
Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis
of race, color, or national origin; the Age Discrimination Act of 1975, as amended,
which prohibits discrimination on the basis of age; Title Vill of the Civil Rights Act
of 1968, as amended,and Executive Order 11063 which prohibits discrimination in
housing on the basis of race, color, religion, sex, or national origin; Executive
Order 11246,as amended which requires equal employment opportunity; and with
the Energy Policy, amended and Conservation Act (Pub.L 94-163) which requires
mandatory standards and policies relating to energy efficiency.
The Provider also agrees to comply with the Domestic Violence Leave codified as
11A-60 at seq.of the Miami-Dade County Code,which requires an employer,who in
the regular course of business has fifty(50)or more employees working in Miami-
Dade County for each working day during each of twenty (20) or more calendar
work weeks to provide domestic violence leave to its employees. Failure to comply
with this local law may be grounds for voiding or terminating this Agreement or for
commencement of debarment proceedings against the Provider.
3. If the amount payable to the Awardee pursuant to the terms of this contract is in
excess of$100,000,the Awardee shall comply with all applicable standards,orders,
or regulations, issued pursuant to Section 306 of the Clean Air Act of 1970 (42
U.S.G. 1857 h), as amended; the Federal Water Pollution Control Act (33 U.S.C.
1251), as amended; Section 508 of the Clean Water Act (33 U.S.C. 1368);
Environmental Protection Agency regulations (40 CFR Part 15); and Executive
Order 11738.
4. Assurance of Compliance with Section 504 of the Rehabilitation Act-The Awardee
shall report its compliance with Section 504 of the Rehabilitation Act whenever so
requested by OCED.
5, Americans with Disabilities Act (ADA) of 1990 -The Awardee shall attest to; and
submit the required Disability Non-discrimination Affidavit assuring compliance
with all applicable requirements of the laws listed below including but not limited
to, those provisions pertaining to employment, provisions and program services,
transportation, communications, access to facilities, renovations, and new
construction.
6. Affirmative Action/Non-Discrimination of Employment, Promotion,and Procurement
Practices Ordinance#98-301-All firms with annual gross revenues in excess of$5
million,seeking to contract with Miami-Dade County shall, as a condition of award,
have a written Affirmative Action Plan and Procurement Policy on fife with the
County's Department of Business Development. Said firms must also submit, as a
part of their proposals/bids to be filed with the Clerk of the Board,an appropriately
completed and signed Affirmative Action PianiProcurement Poiicy Affidavit. f=irms
whose Boards of Directors are representative of the population make-up of the
nation are exempt from this requirement and must submit, in writing, a detailed
listing of their Boards of Directors, showing the race or ethnicity of each board
8
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a
member, to the County's Department of Business Development Firms claiming
exemption must submit, as a part of their proposaislbids to be filed with the Clerk
of the Board, an appropriately completed and signed Exemption Affidavit in
accordance with Ordinance 98-30. These submittals shalt be subject to periodic
reviews to assure that the entities do not discriminate In their employment and
procurement practices against minorities and women-owned businesses.
It will be the responsibility of each firm to provide verification of their gross annual
P ty p 9
revenues to determine the requirement for compliance with the Ordinance. Those
firms that do not exceed $5 million annual gross revenues must clearly state so in
their bid/proposal.
Any bidder/respondent which does not provide an affirmative action plan and
procurement policy may not be recommended by the County Manager for award by
the Board of County Commissioners.
7. Domestic Violence Leave Affidavit: Prior to entering into any contract with the
County, a firm desiring to do business with the County shall, as a condition of
award, certify that it is in compliance with the Domestic Leave Ordinance, 99-5 and
Section 11A-60 of the Miami-Dade County Code. This Ordinance applies to
employers that have, in the regular course of business,fifty(50)or more employees
working in Miami Dade County for each working day during each of twenty(20) or
more calendar work weeks in the current or preceding calendar year.In accordance
with Resolution R-185-00, the obligation to provide domestic violence leave to
employees shall be a contractual obligation. The County shall not enter into a
contract with any flan that has not certified its compliance with the Domestic Leave
Ordinance.Failure to comply with the requirements of Resolution R-185-00,as well
as the Domestic Leave Ordinance may result in the contract being declared void,
the contract being terminated and/or the firm being debarred.
8. Code of Business Ethics: In accordance with Section 2-8.1(1)of the Code of Miami-
Dade County each person or entitiy that seeks to do business with Miami-Dade
County shall adopt a Code of Business Ethics ("Code") and shall submit an
affidavit stating that the Awardee has adopted a Code that complies with the
requirements of Section 2-8.10) of the Miami-Dade County Code (Form A-12).
Section 2-11.1(d)of Miami-Dade County Code as amended by Ordinance 00-1,also
requires any county employee or any member of the employee's immediate family
who has a controlling financial interest, direct or indirect,with Miami-Dade County
or any person or agency acting for Miami-Dade County from competing or applying
for any such contract as it pertains to this solicitation, must first request a conflict
of interest opinion from the County's Ethic Commission prior to their or their
Immediate family member's entering into any contract or transacting any business
through a firm, corporation, partnership or business entity in which the employee
or any member of the employee's immediate family has a controlling financial
interest, direct or indirect,with Miami-Dade County or any person or agency acting
for Miami-Dade County and that any such .contract, agreement or business
engagement entered in violation of this subsection, as amended, shall render this
Agreement voidable. For additional information, please contact the Ethics
Commission hotline at(305)579-2593.
9. PUBLIC ENTITY CRIMES
Pursuant to Paragraph 2(a)of Section 287.133, Florida Statutes,a person or affiliate
who has been placed on the convicted vendor list following a conviction for a
public entity crime may not submit a proposal for a contract to provide any goods
or services to a public entity;may not submit a proposal on a contract with a public
entity for the construction or repair of a pubiic building or public work; may not
submit proposals on leases of real property to a public entity; may not be awarded
or perform work as a Awardee, supplier, subcontractor, or consultant under a
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contract with any public entity; and, may not transact business with any public
entity in excess of the threshold amount provided in Section 287.017 for Category
TWO ($90,000) for a period of thirty-six (36) months from the date of being placed
on the convicted vendor list_The Awardee warrants and represents that it has not
been placed on the convicted vendor list The Awardee agrees that should Miami-
Dade County discover that the Awardee's representations regarding the list are
false, this contract shall be terminated on the discretion of Miami-Dade County.
Further, should the Awardee be placed on the list at any time during this contract
Miami-Dade County shall have the right to terminate this agreement
10. CRIMINAL CONVICTION
Pursuant to Miami-Dade County Ordinance No.94-34, "Any individual who has been
convicted of a felony during the past ten years and any corporation, partnership,
joint venture or other legal entity having an officer, director, or executive who has
been convicted of a felony during the past ten years shall disclose this information
prior to entering into a contract with or receiving funding from the County." Failure
of the Awardee to disclose this information as required may lead to the termination
of this agreement by Miami-Dade County.
If Awardee, or any owner, subsidiary, or other firm affiliated with or related to the
Awardee, is found by the responsible enforcement agency, the Courts or the
County to be in violation of the Acts, the County will conduct no further business
with Awardee. Any contract entered into based upon a false affidavit, as listed
below,and submitted pursuant to this resolution shall be voidable by the County:
1. Miami-Dade County Ownership Disclosure Affidavit
2. Miami-Dade Employment Family Leave Affidavit
3. Miami-Dade Employment Drug-Free Workplace Affidavit
4. Miami-Dade Employment Disclosure Affidavit
5. Disability Nondiscrimination Affidavit
6. Criminal Record Affidavit
7. Public Entity Crime Affidavit
8. Related-Party Disclosure Information
9. Miami-Dade County Affidavit Regarding Delinquent and Currently Due Fees
or Taxes
10. Affirmative Action Affidavits
11. Current on all County Contracts, Loans,and Other
Obligations Affidavit
12. Project Fresh Start Affidavit
13. Domestic Violence Leave Affidavit
14. Code of Business Ethics Affidavit
15. Financial and Conflicts of Interest Affidavit
16. Collusion Affidavit
If any attesting firm violates any of the Acts below during the term of any contract such firm
has with the County, such contract shall be voidable by the County, even if the attesting
firm was not in violation at the time it submitted its affidavit.
The applicable Acts are as follows:
1. The Americans with Disabilities Act of 1990(ADA), Pub. L. 101-336, 104 Stat 327,42
U.S.C. 12101-12213 and 47 U.S.C. Sections 225 and 611 including Title 1,
Employment;Title ll, Public Services;Title III, Public Accommodations and Services
Operated by Private Entities; Title IV, Telecommunications; and Title V,
Miscellaneous Provisions.
2. The Rehabilitation Act of 1973,29 U.S.C.Section 794;
3. The Federal Transit Act,as amended 49 U.S.C.Section 1612;
4. The Fair Housing Act as amended,42 U.S.C.Section 3601-3631.
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H. Conflicts with Applicable Laws
If any provision of this contract conflicts with any applicable laud or regulation including but
not limited to, 24 CFR 570, only the conflicting provision shall be deemed by the parties
hereto to be modified to be consistent with the law or regulation or to be deleted If
modification is impossible. However,the obligations under this contract,as modified,shall
continue and all other provisions of this contract shall remain in full force and effect. The
County's determination on whether a provision conflicts shall be final and binding.
I. Board of Directors
If the Awardee Is a Community Development Corporation (CDC), OCED shall have the
option to appoint a representative to the Awardee's board of directors. This representative
shall not be considered in the counting of a quorum and shall have no voting privileges.
J. Construction
If the Awardee engages in, procures, or makes loans for construction work, the Awardee
shall:
1. Contact the OCED representative noted in Section IV, Paragraph K of this contract,
prior to taking any action,to schedule a meeting to receive compliance information.
2. Comply with the Awardee's procurement and pre-award requirements and
procedures which,at a minimum,shall adhere to all applicable federal standards.
3. Comply with the Davis-Bacon Act; Copeland Anti-Kick Back Act; Contract Work
Hours and Safety Standards Act; and Lead-Based Paint Poisoning Prevention Act
as amended on September 15,1999;and other related acts,as applicable.
4. Submit to OCED for written approval all proposed Solicitation Notices, Invitations
for Bids,and Requests for Proposals prior to publication.
5. Submit to OCED all construction plans and specifications and receive OCED's
approval prior to Implementation.
6. Contact the OCED representative noted in Section IV, Paragraph K, prior to
scheduling a pre-construction conference. In accordance with industry standards,
OCED will hold ten percent (10%) of the total grant award as a retainer until the
construction work is determined by OCED, in its sole discretion, to be seventy-five
percent (75 %)completed,At the time that the construction work is determined by
OCED to be seventy-five percent complete,the retainer will be reduced to 5%until
the work is completed,Completion shall occur when a Certificate of Occupancy is
issued.
7. The County shall have the right to assign the Community Builders Division of the
Office of Community and Economic Development to assist the project If the
County's staff determines that the Awardee has been unable to consistently
achieve the work and units described within the time frames of the action step
format of this agreement.Such involvement will result in a reduction of a maximum
of 5% of the agreement's award to cover the cost of the technical assistance.The
Awardee shall cooperate and comply with all requests made by the Community
Builders Division of the Office of Community and Economic Development.
a. Execute a restrictive covenant with Miami-Dade County for the grant award and the
use of the land to ensure its use as a CDBG project site as defined and described in
Attachment"A"of this agreement.
K. Audits and Records
1. Nonprofit organizations that expend $500,000 or more annually in federal awards
shall have a single or program specific audit conducted in accordance with ONIS A-
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133. Nonprofit organizations expending federal awards of$500,000 or more under
only one federal program may elect to have a program-specific audit performed, In
accordance with OMB A-133. Awardees who will be receiving, or who have
received,federal awards for loans or loan guaranteed programs may be required to
conduct audits of those programs in accordance with regulations of the federal
agencies providing those guarantees or loans.
2. Nonprofit organizations that expend less than $500,000 annually In federal awards
shall be exempt from an audit conducted in accordance with OMB A-133,although
their records must be available for review (e.g., inspections, evaluations). Such
agencies that receive less than$500,000 in combined Federal awards must submit
to the County annual compilation reports that describe their performance. To
achieve uniformity regarding the reporting format, such documents must comply
with the accounting industry standards by communicating an independent
accountant's(1)expression of limited assurance on FINANCIAL STATEMENTS as a
result of performing inquiry and analytic procedures (Review Report); (2)results of
procedures performed (Agreed-Upon Procedures Report); (3) non-expression of
opinion or any form of assurance on a presentation in the form of financial
statements information that Is the representation of management (Compilation
Report);or(4)an opinion on an assertion made by management in accordance with
the Statements on Standards for Attestation Engagements(Attestation Report).
3. When the requirements of OMB A-133 apply, an audit shall be conducted for each
fiscal year for which federal awards attributable to this contract have been received
by the Awardee. Each audit shall include a fiscal review, which includes a
validation of all program generated income and its disposition, especially
attributable to CDBG funds,an internal control review,and a compliance review as
described in OMB A-1133. A copy of the audit report in triplicate must be received
by OCED no later than six months following the end of the Awardee's fiscal year.
4. If an audit is required by Paragraph K of this contract,but the requirements of OMB
A-133 do not apply the Awardee may choose to have an audit performed either on
the basis of the Awardee's fiscal year or on the basis of the period during which
OCED-federal assistance has been received. In either case,each audit shall cover
a time period of not more than twelve(12)months and an audit shall be submitted
covering each assisted period until all the assistance received from this contract
has been reported on. Each audit shall adhere to all other audit'standards of OMB
A-133,as these may be limited to cover only those services undertaken pursuant to
the terms of this contract. A copy of the audit report in triplicate must be received
by OCED no later than six months following each audit period.
5. The Awardee shall maintain all Contract Records In accordance with generally
accepted accounting principles, procedures, and practices which shall sufficiently
and properly reflect all revenues and expenditures of funds provided directly or
indirectly by the County pursuant to the terms of this contract
6. The Awardee shall maintain all Contract Records that document all actions
undertaken to accomplish the"Scope of Services"outlined in Attachment A in this
contract
7. The Awardee shall ensure that the Contract Records shall be at all times subject to
and available for full access and review, inspection, or audit by County and federal
personnel and any other personnel duly authorized by the County.
8. The Awardee shall include in all OCED approved subcontracts used to engage
subcontractors to carry out any eligible substantive programmatic services, as
such services are described In this contract and defined by OCED, each of the
record-keeping and audit requirements detailed in this contract. OCED shall, In its
sole discretion, determine when services are eiigibie substantive programmatic
services and subject to the audit and record-keeping requirements described
above.
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9. The County reserves the right to require the Awardee to submit to an audit by Audit
and Management Services or other auditor of the County's choosing at the
Awardee's expense. The Awardee shall provide access to all of its records,which
relate directly or indirectly to this Agreement at its place of business during regular
business hours.The Awardee shall retain all records pertaining to this Agreement
and upon request make them available to the County for three years following
expiration of the Agreement. The Awardee agrees to provide such assistance as
may be necessary to facilitate the review or audit by the County to ensure
compliance with applicable accounting and financial standards.
10. The Awardee shall ensure that Its auditors share their audit results with OCED.
The auditors must submit the audit report to OCED within six months after the
conclusion of the audit period.
11. Pursuant to County Ordinance No. 03-2, the Awardee will grant access to the
Commission Auditor to all financial and performance related records, property,and
equipment purchased in whole or in part with govemment funds. The Awardee
agrees to maintain an accounting system that provides accounting records that are
supported with adequate documentation, and adequate procedures for determining
the allowability and ailocability of costs.
L. Retention of Records
1. The Awardee shall retain all Contract Records for a period of at least five(5)years
(hereinafter referred to as "Retention Period") subject to the limitations set forth
below:
a. For all non-CDBG assisted activities,the Retention Period shall begin upon
the expiration or termination of this contract.
b. For CDBG assisted public service activities, the Retention Period shall
begin upon the date of U.S. HUD's acceptance of OCED's annual Grantee
Performance Report for the year in which the activity is reported as
completed. For each public service activity, the Awardee must retain all
contract records except those relating to real and nonexpendable personal
property.
C. For all other CDEG assisted activities, the Retention Period shall begin
upon U.S. HUD's acceptance of OCED's annual Grantee Performance
Report in which each assisted activity is reported on for the final time. For
all the CDBG assisted activities covered by this Section II, Paragraph L.1.c.,
the Awardee must retain all contract records except those relating to real
and nonexpendable personal property.
d. For all CDBG assisted activities, the Retention Period for all contract
records relating to real and nonexpendable personal property shall begin
upon the date of the final disposition of the property.
2. If the County or the Awardee have received or given notice of any kind indicating
any threatened or pending litigation, claim or audit arising out of the services
provided pursuant to the terms of this contract, the Retention Period shall be
extended until such time as the threatened or pending litigation,claim or audit Is,in
the sole and absolute discretion of OCED,fully,completely and finally resolved.
3. The Awardee shall allow the County,federal personnel,or any person authorized by
the County full access to and the right to examine any of the contract records
during the required Retention Period.
4. fhe Awardee shall notify OCED in writing, troth during the pendency of this
contract and after its expiration as part of the final closeout procedure, of the
address where all contract records will be retained.
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5. The Awardee shall obtain written approval of OCED prior to disposing of any
contract records within one year after expiration of the Retention Period.
M. Provision of Records
1: The Awardee shall provide to OCED, upon request, all contract records. These
records shall become the property of OCED without restriction, reservation, or
limitation of their use. OCED shall have unlimited rights to all books, articles, or
other copyrightable materials developed for the purpose of this contract. These
unlimited rights shall include the rights to royalty-fees; nonexclusive, and
irrevocable license to reproduce,publish,or otherwise use,and to authorize others
to use,the information for public purposes.
2. If the Awardee receives funds from, or is under regulatory control of, other
governmental agencies, and those agencies issue monitoring reports, regulatory
examinations, or other similar reports, the Awardee shall provide a copy of each
report and any follow-up communications and reports to OCED immediately upon
such issuance unless such disclosure is a violation of the rules or policies of the
regulatory agencies issuing the reports.
3. MIAMI-DADE COUNTY INSPECTOR GENERAL REVIEW
According to Section 2-1076 of the Code of Miami-Dade County, as amended by
Ordinance No. 99-63, Miami-Dade County has established the Office of the
Inspector General which may, on a random basis, perform audits on all County
contracts,throughout the duration of said contracts, except as otherwise provided
below. The cost of the audit of any Contract shall be one quarter(114) of one (1)
percent of the total contract amount which cost shall be included in the total
proposed amount. The audit cost will be deducted by the County from progress
payments to the selected Awardee. The audit cost shall also be included in all
change orders and all contract renewals and extensions.
Exception: The above application of one quarter (114) of one percent fee
assessment shall not apply to the following contracts: (a) IPSIG contracts; (b)
contracts for legal services; (c) contracts for financial advisory services; (d)
auditing contracts; (e) facility rentals and lease agreements; (f) concessions and
other rental agreements; (g)insurance contracts; (h)revenue-generating contracts;
(1)contracts where an IPSIG is assigned at the time the contract is approved by the
Commission; 0) professional service agreements under $1,000; (k) management
agreements; (1) small purchase orders as defined in Miami-Dade County
Administrative Order 3-2; (m) federal, state and local government-funded grants;
and (n) interlocal agreements. Notwithstanding the foregoing, the Miami-Dade
County Board of Coun Commissioners may authorize the inclusion of the fee
assessment of one quarter(114)of one percent in any exempted contract at the time
of award.
Nothing contained above shall in any way limit the powers of the Inspector General
to perform audits on this contract.
4. COMMISSION AUDITOR ACCESS TO RECORDS
Pursuant to Ordinance No. 03-2, Awardee shall grant access to the Commission
Auditor to all financial and performance related records, property, and equipment
purchased in whole or in part with government funds, including funds awarded tp
Awardee pursuant to this contract.
5. PROPRIETARY INFORMATION
As a political subdivision of the State of Florida, Miami-Dade County is subject to
the stipulations of Florida's Public Records Law.
The Awardee acknowledge that all computer software in the County's possession
may constitute or contain information or materials which the County has agreed to
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protect as proprietary information from disclosure or unauthorized use and may
also constitute or contain information or materials which the County has developed
at its own expense, the disclosure of which could harm the County's proprietary
interest therein.
During the term of the contract, the Awardee will not use directly or indirectly for
itself or for others, or publish or disclose to any third party, or remove from the
County's property, any computer programs, data compilations, or other software
which the County has developed,has used or is using, is holding for use, or which
are otherwise in the possession of the County (hereinafter "Computer Software").
All third-party license agreements must also be honored by the Awardees and their
employees, except as authorized by the County and, if the Computer Software has
been leased or purchased by the County, all hired party license agreements must
also be honored by the Awardees' employees with the approval of the lessor or
Awardees thereof. This includes mainframe, minis, telecommunications, personal
computers and any and all information technology software.
The Awardee will report to the County any information discovered or which is
disclosed to the Awardee which may relate to the improper use, publication,
disclosure or removal from the County's property of any information technology
software and hardware and will take such steps as are within the Awardee's
authority to prevent improper use,disclosure or removal.
6. PROPRIETARY RIGHTS
a) The Awardee hereby acknowledges and agrees that the County retains all rights,
title and interests in and to all materials, data, documentation and copies thereof
furnished by the County to the Awardee hereunder or furnished by the Awardee to
the County and/or created by the Awardee for delivery to the County, even if
unfinished or in process, as a result of the Services the Awardee performs in
connection with this Agreement,including all copyright and other proprietary rights
therein, which the Awardee as well as its employees, agents, subcontractors and
suppliers may use only in connection of the performance of Services under this
Agreement. The Awardee shall not,without the prior written consent of the County,
use such documentation on any other project in which the Awardee or its
employees, agents, subcontractors or suppliers are or may become engaged.
Submission or distribution by the Awardee to meet official regulatory requirements
or for other purposes in connection with the performance of Services under this
Agreement shall not be construed as publication in derogation of the County's
copyrights or other proprietary rights.
b) All rights, title and interest in and to certain Inventions, ideas, designs and
methods, specifications and other documentation related thereto developed by the
Awardee and its subcontractors specifically for the County, hereinafter referred to
as"Developed Works"shall become the property of the County.
C) Accordingly, neither the Awardee nor its employees, agents, subcontractors or
suppliers shall have any proprietary Interest In such Developed Works. The
Developed Works may not be utilized, reproduced or distributed by or on behalf of
the Awardee, or any employee,agent,subcontractor or supplier thereof,without the
prior written consent of the County, except as required for the Awardee's
performance hereunder.
d) Except as otherwise provided in subsections a, b, and c above, or elsewhere
herein,the Awardee and its subcontractors and suppliers hereunder shall retain all
proprietary rights in and to all!Licensed Software provided hereunder,that have not
beer•, customized to satisfy the performance criteria set forth in the Scope of
Services. Notwithstanding the foregoing, the Awardee hereby grants, and shall
require that its subcontractors and suppliers grant, if the County so desires, a
perpetual,irrevocable and unrestricted right and license to use,duplicate,disclose
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and/or permit any other person(s) or entity(ies)to use all such Licensed Software
and the associated specifications,technical data and other Documentation for the
operations of the County or entities controlling, controlled by, under common
control with, or affiliated with the County, or organizations which may hereafter be
formed by or become affiliated with the County. Such license specifically includes,
but is not limited to, the right of the County to use and/or disclose, in whole or in
part, the technical documentation and Licensed Software, including source code
provided hereunder,to any person or entity outside the County for such person's or
entity's use in furnishing any and/or all of the Dellverables provided hereunder
exclusively for the County or entities controlling, controlled by, under common
control with, or affiliated with the County, or organizations which may hereafter be
formed by or become affiliated with the County. No such License Software,
specifications,data,documentation or related information shall be deemed to have
been given in confidence and any statement or legend to the contrary shall be void
and of no effect.
N. prior Approval
The Awardee shall obtain written approval from OCED prior to undertaking any of the
following:
1. The engagement or execution of any subcontract(s) or contract assignments,
wherein CDBG funds will be used to pay for goods or services. The Awardee must
submit all proposed agreement documents to OCED at least thirty(30) days prior to
the start date of the agreement OCED shall have no obligation to approve payment
of any expenditure (resulting from an agreement or subcontract) which was
incurred prior to the approval by OCED of such agreement or subcontract.
2. The addition of any positions not specifically listed in the approved budget
3. The modification or addition of all job descriptions.
4. The purchase of all nonexpendable personal property not specifically listed in the
approved budget
5. The disposition of all real, expendable personal, and nonexpendable personal
property as defined in Section 11,Paragraph SA.of this contract.
6. Out-of-town travel not specifically listed in the approved budget
7. The disposition of Program Income not specifically listed in the approved Program
income budget.
8. The publication of proposed Solicitation Notices, Invitations for Bids and Requests
for Proposals as provided for in Section 11,Paragraph J of this contract.
9. The disposal of all contract records as provided for in Section 11, Paragraph L of
this contract.
10. In the event the Awardee wishes to substitute personnel for the key personnel
identified by the Awardee's Proposal,the Awardee must notify the County in writing
and request written approval for the substitution at least ten (10) business days
prior to effecting such substitution.
O. Monitoring
The Awardee shall permit OCED and other persons duly authorized by OCED to inspect all
contract records, facilities, equipment, materials, and services of the Awardee which are in
any way connected to the activities undertaken pursuant to the terms of this contract,
and/or to interview any clients, employees, subcontractors, or assignees of the Awardee.
Following such inspection or interviews, OCED will deliver to the Awardee a report of its
findings, and the Awardee will rectify all deficiencies cited by OCED within the specified
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period of time set forth in the report,or provide OCED with a reasonable justification for not
correcting the deficiencies. OCED will determine, in its sole and absolute discretion,
whether or not the Awardee's justification is acceptable or if the Awardee must,despite the
justification,rectify the deficiencies cited by OCED in its report.
P. Conflict of Interest
The Awardee agrees to abide by the provisions of 24 CFR 84.42 (24 CFR Part 85.36
for Public Agencies)and 24 CFR 570.611 with respect to conflicts of interest,and covenants
that it presently has no financial interest and shall not acquire any financial interest, direct
or indirect, which would conflict in any manner or degree with the performance of services
requried under this Agreement. The Awardee further covenants that in the performance of
this Agreement no person having such a financial interest shall be employed or retained by
the Awardee hereunder. These conflict of interest provisions apply to any person who is an
employee, agent, consultant, officer, or elected official or appointed official of the County,
or of any designated public agencies or subrecipients which are receiving funds under the
CDBG Entitlement program. The Awardee certifies and represents that no officer,director,
employee,agent, or other consultant of the County or a member of the immediate family or
household of the aforesaid has directly or indirectly received or been promised any form of
benefit, payment or compensation, whether tangible or intangible, in connection with the
grant of this Agreement. The Awardee shall disclose any possible conflicts of interest or
apparent improprieties of any party that are covered by the above standards.The Awardee
shall make such disclosure in writing to OCED immediately upon the Awardee's discovery
of such possible conflict. OCED will then render an opinion which shall be binding on all
parties.
The Awardee shall submit to OCED,within five business days of execution this contract,all
updated Conflict of Interest affidavits, Related Party Disclosure statements, list of current
Board members,and list of all business associations with the following documents:
➢ Orlglnal contract or its subsequent amendments.
➢ Requests for budget revisions.
➢ Requests for approval of subcontracts.
Non-compliance with the above requirements will be considered a breach of contract,
which will result in the immediate termination of the agreement,the recovery of the entire
funding award,and the disqualification of funding through OCED for a period of three years.
a) Awardee certifies and represents that there are no undisclosed persons or entities
interested with the Awardee in this Agreement. This Agreement is entered into by the
Awardee without any connection with any other entity or person making a proposal for the
same purpose,and without collusion, fraud or conflict of interest. No elected or appointed
officer or official,director,employee,agent or other consultant of the County, or of the State
of Florida (including elected and appointed members of the legislative and executive
branches of government), or a member of the immediate family or household of any of the
aforesaid:
i) is interested on behalf of or through the Awardee directly or indirectly in any
manner whatsoever in the execution or the performance of this Agreement, or in
the services, supplies or work, to which this Agreement relates or in any portion of
the revenues;or
ii) is an employee, agent, advisor, or consultant to the Awardee or to the best of the
Awardee's knowledge any subcontractor or supplier to the Awardee.
b) Neither the Awardee nor any officer, director, employee, agency, parent, subsidiary, or
affiliate of the Awardee shall have an interest which is In coiifilet with the Awardee's faithful
performance of its obligation under this Agreement; provided that the County, in its sole
discretion, may consent in writing to such a relationship, provided the Awardee provides
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the County with a written notice,in advance,which identifies all the individuals and entities
involved and sets forth In detail the nature of the relationship and why it is in the County's
best interest to consent to such relationship.
C) The provisions of this Article are supplemental to, not in lieu of, all applicable laws with
respect to conflict of interest. In the event there is a difference between the standards
applicable under this Agreement and those provided by statute, the stricter standard shall
apply.
d) in the event Awardee has no prior knowledge of a conflict of interest as set forth above and
acquires information which may indicate that there may be an actual or apparent violation
of any of the above, Awardee shall promptly bring such information to the attention of the
County's Project Manager. Awardee shall thereafter cooperate with the County's review and
investigation of such information, and comply with the instructions Awardee receives from
the Project Manager in regard to remedying the situation.
Q. Related Parties
The Awardee shall report to OCED 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 nonprofit subsidiary or affiliate organization, an organization with overlapping
boards of directors, and an organization for which the Awardee is responsible for
appointing memberships.The Awardee shall report this information to OCED upon forming
the relationship or if- already formed, shall report it immediately. Any supplemental
information shall be reported quarterly in the required Progress Report.
The Awardee shall submit to OCED,within five business days of execution this contract, all
updated Conflict of Interest affidavits, Related Party Disclosure statements, list of current
Board members,and list of all business associations with the following documents:
➢ Original contract or its subsequent amendments.
➢ Requests for budget revisions.
Requests for approval of subcontracts.
Rion-compliance with the above requirements will be considered a breach of contract,
which will result in the immediate termination of the agreement, the recovery of the entire
funding award,and the disqualification of funding through OCED for a period of three years.
R. Publicity,Advertisements and Signage
1. The Awardee shall ensure that all publicity, public relations, advertisements and
signs, recognizes the Miami-Dade Office of Community and Economic Development
(OCED) and the U. S. Department of Housing and Urban Development for the
support of all contracted activities. This is to include, but is not limited to, all
posted signs, pamphlets, wall plaques, cornerstones, dedications, notices, flyers,
brochures, news releases, media packages, promotions, and stationery. All signs
used to publicize OCED contracted activities must be approved by OCED prior to
being posted and must also meet the standard specifications as established by
OCED.The use of the official Miami Dade OCED logo is permissible.
2. The Awardee shall furnish, erect and maintain construction signs in accordance
with sketch included in these contract documents. The signs shall be made of%
inch thick marine plywood, newly painted and lettered according to the
accompanying sketch.
The signs shall be painted and lettered in accordance with professional outdoor
sign painting standards as to layout, symmetry, proportion, clarity and neatness
and use of weather-resistant colors and materials. The .Awardee shall place the
signs, securely braced and mounted, as shown on the typical project sign
placement diagram or as directed by the engineer. All materials shall be provided
by the Awardee and the signs shall remain in the property of the Owner at the
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completion of the contract. NO WORK SHALL COMMENCE UNTIL THE PROJECT
SIGNS ARE SECURED IN PLACE. THE SIGNS SHALL BE IN ACCORDANCE WITH
THE DETAIL SHOWN IN ATTACHMENT F. For this project signs will be required.
Payment for furnishing, installing and maintaining the sign shall be under the bid
amount for mobilization.
S. Procurement
The Awardee must take affirmative steps to procure supplies, equipment, construction, or
services to fulfill this contract from minority and women's businesses,and to provide these
sources the maximum feasible opportunity to compete for subcontracts to be procured
pursuant to this contract To the maximum extent feasible, these businesses shall be
located in or owned by residents of the Community Development areas designated by OCED
in the CDBG application approved by the supervising federal agency.
The Awardee shall assure that all subcontracts or third party agreements contain
provisions with stated goals, that low-income residents from Community Development
Target and Service Areas be provided with opportunities for employment and training in
contracted activities.
1. In conformance with Section 3 of the Housing and Community Development Act of 1968,
the Awardee must direct federal financing assistance towards Target Area residents and
ensure that employment and economic opportunities be given to low and very low-income
persons, particularly those who are recipients of government assistance for housing
according to the guidelines mentioned below:
A. The work to be performed under this contract is subject to the requirements of
section 3 of the Housing and Urban Development Act of 1968, as amended, 12
U.S.C. 170lu (section 3). The purpose of section 3 is to ensure that employment
and other economic opportunities generated by HUD assistance or HUD-assisted
projects covered by section 3, shall,to the greatest extent feasible, be directed to
low-and very low-income persons, particularly persons who are recipients of HUD
assistance for housing.
B: The parties to this contract agree to comply with HUD's regulations in 24 CFR part
135, which implement section 3. As evidenced by their execution of this contract,
the parties to this contract certify that they are under no contractual or other
impediment that would prevent them from complying with the part 135 regulations.
C. The Awardee agrees to send to each labor organization or representative of
workers with which the Awardee has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers'
representative of the Awardee's commitments under this section 3 clause, and will
post copies of the notice in conspicuous places at the work site where both
employees and applicants for training and employment positions can see the
notice.The notice shall describe the section 3 preference, shall set forth minimum
number and job titles subject to hire, availability of apprenticeship and training
positions, the qualifications for each; and the name and location of the person(s)
taking applications for each of the positions; and the anticipated date the work
shall begin.
D. The Awardee agrees to Include this section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR part 135, and agrees to take appropriate
action,as provided in an applicable provision of the subcontract or in this section 3
clause,upon a finding that the subcontractor is in violation of the regulations in 24
CFR part 135. The Awardee will not subcontract with any subcontractor where the
Awardee has notice or knowledge that the subcontractor has been found in
violation of the regulations in 24 CFR part 135.
E. The Awardee will certify that any vacant employment positions, including training
positions, that are filled (1)after the Awardee is selected but before the contract is
executed,and(2)with persons other than those to whom the regulations of 24 CFR
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part 135 require employment opportunities to be directed, were not filled to
circumvent the Awardee's obligations under 24 CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions,
termination of this contract for default, and debarment or suspension from future
HUD assisted contracts.
G. With respect to work performed in connection with section 3 covered Indian
housing assistance, section 7(b) of the Indian Self-Determination and Education
Assistance Act(25 U.S.C.450e)also applies to the work to be performed under this
contract. Section 7(b) requires that to the greatest extent feasible (1) preference
and opportunities for training and employment shali be given to Indians, and (ii)
preference in the award of contracts and subcontracts shall be given to Indian
organizations and Indian-owned Economic Enterprises. Parties to this contract
that are subject to the provisions of section 3 and section 7(b)agree to comply with
section 3 to the maximum extent feasible, but not in derogation of compliance with
section 7(b).
H. Fair Subcontracting Policies(Ordinance 97-35)
All Awardees on County contracts in which subcontractors may be used shall be
subject to and comply with Ordinance 97-35 as amended, requiring Awardees to
provide a detailed statement of their policies and procedures for awarding
subcontracts which:
a) notifies the broadest number of local subcontractors of the opportunity to be
awarded a subcontract;
b) invites local subcontractors to submit bids/proposals in a practical,expedient
way;
c) provides local subcontractors access to information necessary to prepare and
formulate a subcontracting bid/proposal;
d) allows local subcontractors to meet with appropriate personnel of the
Awardee to discuss the Awardee's requirements;and
e) awards subcontracts based on full and complete consideration of all
submitted proposals and In accordance with the Awardee's stated objectives.
All Awardees seeking to contract with the County shall, as a condition of award,
provide a statement of their subcontracting policies and procedures (see attached
Form A-7.2). Awardees who fail to provide a statement of their policies and
procedures may not be recommended by the County Manager for award by the
Board of County Commissioners.
The term "local" means having headquarters located in Miami-Dade County or
having a place of business located in Miami-Dade County from which the contract
or subcontract will be performed.
The term "subcontractor" means a business independent of a Awardee that may
agree with the Awardee to perform a portion of a contract.
The term "subcontract" means an agreement between a Awardee and a
subcontractor to perform a portion of a contract between the Awardee and the
County.
T. Property
1. Definitions
a. Real Property: Land, land improvements, structures, fixtures and
appurtenances thereto,excluding movable machinery and equipment.
b_ Personal Property: Personal property of any kind except real property.
1) Tangible: All personal property having physical existence.
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2) Intangible: All personal property having no physical
existence such as patents,inventions,and copyrights.
C. Nonexpendable Personal Property: Tangible personal property of a
nonconsumable nature, with a value of $750 or more per item, with a
normal expected life of one or more years, not fixed in place, and not an
integral part of a structure,facility or another piece of equipment.
d. Expendable Personal Property: All tangible personal property other than
nonexpendable property.
2. The Awardee shall comply with the real property requirements as stated below:
a. Any real property under the Awardee's control that was acquired—by
Awardee or OCED--or improved—by Awardee or OCED--in whole or in part
with CDBG funds received from OCED In excess of$25,000 shall be either:
1) Used to meet one of the three (3) CDBG national objectives until
five years after the expiration or termination of this contract,or for
such longer period of time as determined by OCED in its sole and
absolute discretion;or
2) Not used to meet one of the three(3)CDBG National Objectives. In
the event the property is not used to meet one of the national
objectives for five (5)years following the expiration or termination
of this contract or such longer period as determined by OCED-then
the Awardee shall, in the sole discretion of OCED, either pay to
OCED an amount equal to the market value of the property as may
be determined by OCED In its sole and absolute discretion, less
any proportionate portion of the value attributable to expenditures
of non-CDBG funds for acquisition of, or improvement to, the
property or transfer the property to OCED at no-cost to OCED.
Reimbursement is not required after the period of time specified in
Paragraph T.2.a.1.,above.
b. Any real property under the Awardee's control that was acquired or
improved in whole or in part with CDBG funds from OCED for$25,000 or
less shall be disposed of, at the expiration or termination of this contract,
In accordance with instructions from OCED.
C. All real property purchased or improved in whole or in part with funds from
this and previous contracts with OCED,or transferred to the Awardee after
being purchased in whole or in part with funds from OCED, shall be listed
in the property records of the Awardee and shall include a legal
description; size; date of acquisition; value at time of acquisition; present
market value; present condition; address or location; owner's name if
different from the Awardee; information on the transfer or disposition of
the property; and map indicating whether property is in parcels, lots, or
blocks and showing adjacent streets and roads. The property records
shall describe the programmatic purpose for which the property was
acquired and identify the CDBG national objective that will be met If the
property was improved, the records shall describe the programmatic
purpose for which the improvements were made and identify the CDBG
national objective that will be met.
d. For awards involving the purchase or improvement of real property, the
Awardee agrees to execute a mortgage, loan document, or restrictive
covenant for the CDBG award with OCED within 180 clays after the
execution of this agreement. Failure to comply with this requirement may
result in the retraction of the CDBG award for the project and termination
of this agreement
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e. All real property shall be inventoried annually by the Awardee and an
inventory report shall be submitted to OCED. This report shall include the
elements listed in Paragraph T.2.c.,above.
3. The Awardee shall comply with the nonexpendable personal property requirements
as stated below:
a. All nonexpendable personal property purchased or improved in whole or in
part with funds from this and previous contracts with OCED shall be listed
in the property records of the Awardee and shall include a description of
the property; location; model number; manufacturers serial number; date
of acquisition;funding source; unit cost at the time of acquisition; present
market value; property inventory number;information on its condition;and
information on transfer,replacement,or disposition.of the property.
b. All nonexpendable personal property purchased or improved in whole or in
part with funds from this and previous contracts with OCED shall be
inventoried annually by the Awardee and an inventory report shall be
submitted to OCED. The inventory report shall include the elements listed
in Paragraph T.3.a.,above.
C. Title (ownership) to all nonexpendable personal property purchased in
whole or in part with funds given to the Awardee pursuant to the terms of
this contract shall vest in the County and OCED.
4. The Awardee shall obtain prior written approval from OCED for the disposition of
real property, expendable personal property,and nonexpendable personal property
purchased or improved in whole or in part with funds given to the Awardee or
subcontractor pursuant to the terms of this contract.The Awardee shall dispose of
all such property in accordance with instructions from OCED. Those instructions
may require the return of all such property to OCED.
U. Program Income
1. Program Income as defined in 24 CFR Part 570.500 means gross income received
by the Awardee directly generated from activities supported by CDBG funds. When
Program Income is generated by an activity that is only partially assisted with
CDBG funds,the income shall be prorated to reflect the percentage of CDBG funds
used.
2. The Awardee shall not, under any circumstances, use Program Income to pay for
charges or expenses that are specifically not allowed pursuant to the terms of this
contract and applicable federal regulations or rules, or any County rules or
ordinance.
a. The Awardee shall comply with the Program Income provisions in OCED's
Contract Compliance Manual. If any Program Income provisions of the
Contract Compliance Manual conflict with any Program Income provisions
of this contract,the provisions of this contract shall rule.
b. The County may in its sole discretion allow Awardee to Use Program
Income to car out eligible activities. The Awardee may request to use
Program Income for eligible activities. If the Awardee requests to use
Program Income,
The Awardee shall report to OCED all cumulative Program Income generated
from activities financed in whole or in part by funds from this contract.
This information along with a check payable to Miami-Dade County for the
generated Program Income, must be submitted quarterly as part of the
Fiscal Section of the Awardee's Progress Report as outlined in-Section II
Paragraph D.2.a.
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C. The Awardee shall report Program Income for as long as it receives and/or
has control over Program Income generated from this and any previous
contracts with OCED.
d. The Awardee shall provide to OCED a written explanation of the activities
to be assisted with Program Income and shall 'obtain OCED's written
approval prior to implementing those activities. All provisions of this
contract shall apply to any activity performed using Program Income.
e. Subject to the limitations set forth in this paragraph,the Awardee may use
Program Income to fund any CDBG eligible activity as provided for and
defined by 24 CPR Part 570 et.seq.
f. Program Income from a revolving loan activity must be used only for the
same revolving loan activity.
g. Program Income from a revolving loan activity, such as loan repayments,
interest earned, late fees, and investment income, shall be substantially
disbursed to eligible loans, loan-related programmatic costs, and
operational costs for the same revolving loan activity before the Awardee
may request additional CDBG funds for that activity.
h. All Program Income from nonrevolving loan activities shall be substantially
disbursed to carry out other OCED approved CDBG eligible activities, and
to cover operational costs before requesting additional CDBG funds.
L Any proceeds from the sale of property as detailed in Section 11, Paragraph
T.4.,above,shall be considered Program Income.
j. The Awardee shall obtain,as part of the required audit report,validation by
a certified auditor of all program generated income and its disposition.
3. Upon expiration or termination of this contract or at the end of any program year,
the Awardee shall transfer to the County any Program Income funds on hand, and
any Program Income accounts receivable to any CDBG funded activities. OCED
may require remittance of all or part of any Program income balances (including
investments thereof)held by the Awardee(except those needed for immediate cash
needs, cash balances of revolving loan fund, cash balances from a lump sum
drawdown, or cash or investments held for Section 908 security needs).
4. OCED, in its sole and absolute discretion, reserves the right to pursue other
courses of action in the retention and use of Program Income generated by the
Awardee,and such action shall not require an amendment to this contract.
V. Travel
The Awardee shall comply with the County's travel policies. Documentation of travel
expenses shall conform to the requirements of OCED's Contract Compliance Manual.
W. Subcontracts and Assignments
'1. Unless otherwise specified in tnis contract, the Awardee shall not subcontract any
portion of the work without the prior written consent of the County. Subcontracting
without the prior consent of the County may result in termination of the contract for
breach. When Subcontracting is allowed, the Awardee shall comply with County
Resolution No. 1834.93, Section 90-34 of the County Code and Section 2-8.8 of the
County Code.
The Awardee shall ensure that all subcontracts and assignments:
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a,: Ensure that no contractor, subcontractor or assignee is fasted on the U.S.
HUD's debarred, suspended, or ineligible contractors list; Awardee shall
use, at a minimum, US HUD's Excluded Parties List System to confirm
clearance of contractors. The system may be accessed at
https:llwww.e Is.govl Awardee shall provide to OCED a copy of the site
page that indicates the name and the date it was checked. Awardee shall
further ensure that no contractor, subcontractor, or assignee is listed on
Miami-Dade County's debarred Contractor's List; Awardee shall, at a
minimum, check at miamidade.govlsbalre ports.debarment to determine if a
person or entity is on Miami-Dade County's debarred contractor's list.
Awardee shall provide OCED with a printout copy of the site page that
indicates the name and the date it was checked.
b. Comply with all requirements and regulations specified in OCED's Contract
Compliance Manual
C. Identify the full,correct,and legal name of the party;
d. Describe the activities to be performed;
e. Present a complete and accurate breakdown of its price component;
f. Incorporate a provision requiring compliance with all applicable regulatory
and other requirements of this contract and with any conditions of
approval that the County or OCED deem necessary.
This applies only to subcontracts and assignments in which parties are
engaged to carry out any eligible substantive programmatic service, as
may be defined by OCED, set forth in this contract OCED shall in its sole
discretion determine when services are eligible substantive programmatic
services and subject to the audit and record-keeping requirements
described above, and; Result from an open competitive bid process
generating a minimum of three bids. Such competitive process shall be
described in writing, approved by the Board of Directors and a copy of
which submitted to OCED. In such circumstances that open, competitive
bids are not feasible or that a minimum of three bids are unobtainable,
permission to use other methods of award must be requested in writing
and approved by OCED prior to the assignment or award of subcontract.
The Awardee agrees that no assignment or sub-contract will be made or let
in connection with the Agreement without the prior written approval of
OCED, which approval shall not be unreasonably withheld, and that all
such sub-contractors or assignees shall be governed by the terms and
intent of this Agreement.
g. Incorporate the language of Attachment E, "Certification Regarding
Lobbying."
h. Include language stating that the Subcontractor understands and agrees
that the County is not a party to the subcontract and has no obligation to
the subcontractor.
i. The Awardee shall maintain, and shall require that its subcontractors and
suppliers maintain, complete and accurate records to substantiate
compliance with the requirements set forth in the Scope of Services. The
Awardee and its subcontractors and suppliers, shall retain such records,
and all other documents relevant to the Services furnished under this
Agreement for a period of three (3) years from the expiration date of this
Agreement and any extension thereof.
2. The Awardee shall incorporate in all consultant subcontracts this additional
provision:
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The Awardee is not responsible for any insurance or other fringe benefits, e.g.,
social security, income tax withholdings, retirement or leave benefits, for the
Consultant or employees of the Consultant normally available to direct employees
of the Awardee. The Consultant assumes full responsibility for the provision of all
insurance and fringe benefits for himself or herself and employees retained by the
Consultant in carrying out the Scope of Services provided in this subcontract.
3. The Awardee shall be responsible for monitoring the contractual performance of all
subcontracts and their progress toward meeting the approved goals and objectives
indicated In the attached Scope of Services.
4. The Awardee shall receive from OCED written prior approval for any subcontract
engaging any party who agrees to carry out any substantive programmatic
activities as may be determined by OCED as described in this contract. OCED's
approval shall be obtained prior to the release of any funds to the subcontractor.
5. The Awardee shall receive written approval from OCED prior to either assigning or
transferring any obligations or responsibility set forth in this contract or the right to
receive benefits or payments resulting from this contract.
6. Approval by OCED of any subcontract or assignment shall not under any
circumstance be deemed to provide for the incurrence of any obligation by OCED in
excess of the total dollar amount agreed upon in this contract.
7. If the subcontract involves$100,000 or more to provide services listed in the Scope
of Services or suppliers to supply the materials, the Awardee shall provide the
names of the subcontractors and suppliers to OCED.
a. The Awardee agrees that it will not change or substitute subcontractors or
suppliers from the list without prior written approval from OCED.
9. The Awardee shall not hire any of the Awardee's staff members or employees as
subcontractors.
X. Additional Funding
The Awardee shall notify OCED of any additional funding received for any activity described
in this contract.Such notification shall be in writing and received by OCED within thirty(30)
days of the Awardee's notification by the funding source.
Y. Method of Payment
The Awardee shall be paid as described below:
1. The Awardee shall be paid for those expenses allowed pursuant to the provisions
provided below only when the Awardee submits to OCED adequate proof, as
determined by OCED in its sole discretion, that the Awardee has incurred the
expenditures. It shall be presumed that the Awardee has provided adequate proof
of having incurred expenses if the Awardee submits to OCED canceled checks or
original invoices approved by the Awardee's authorized representative. When
original documents cannot be presented,the Awardee must adequately justify their
absence in writing and furnish copies of those documents to OCED. The Awardee
shall be paid only for those expenditures contained within Attachment B,"Budget,"
to this contract as it may be revised with the prior written approval by OCED.
2. Requests for payment(reimbursement) shall be assembled by calendar month and
submitted to OCED no less frequently than monthly. Expenditures incurred by the
Awardee must he submitted to OGEn, along with all original invoices, copies of
front and back of cancelled checkspaid to all subcontractorsand suppliers, all
release of liens from sill subcontractorsand suppliers, and all final approved
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I
permits, for payment within 30 days after the month in which the expenditures
were incurred. Failure to comply will result in rejection of invoices.
3. In no event shall the County provide advance CDBG funding to the Awardee or to
any subcontractor hereunder, nor shall the Awardee advance CDBG funds to any
party.
4. Any payment due under the terms of this contract may be withheld pending the
receipt and approval by OCED of all reports and documents which the Awardee is
required to submit to OCED pursuant to the terms of this contract or any
amendments thereto.
5. All payments will be limited to the quarterly payment schedule that accompanies
the action step chart in the scope of services. Payment is contingent on the
achievement by the Awardee of the quarterly accomplishment levels identified in
the scope of services portion of this agreement—Attachment"A," which shall be
submitted with all payment requests and shall clearly identify the completed level
of accomplishments met.This shall also apply to soft costs associated with project
delivery.
6. No payment(s)will be made without evidence of appropriate insurance required by
this contract. Such evidence must be on file with OCED and the County's Risk
Management Division. OCED must receive the final request for payment from the
Awardee no more than thirty (30) calendar days after the expiration or termination
of this contract. If the Awardee fails to comply with this requirement,the Awardee
will forfeit all rights to payment(s)if OCED,in its sole discretion,so chooses.
7. All monies paid to the Awardee which have not been used to retire outstanding
obligations of this contract must be refunded to OCED in accordance with OCED's
Contract Compliance Manual.
8. Any unexpended funds remaining after the completion of the services under this
contract, or after termination of this contract, shall be recaptured in full by the
County.
9. In the event the County determines that the Awardee has breached the terms of this
agreement and that the County is entitled to return of any or all of the funds
awarded under this contract, Awardee agrees to and shall assign any proceeds to
the County from any contract between the County, its agencies or instrumentalities
and the Awardee or any firm,corporation, partnership or joint venture in which the
Awardee has a controlling financial interest in order to secure repayment of this
award. "Controlling financial interest'shall mean ownership, directly or indirectly
to ten percent or more of the outstanding capital stock in any corporation or a
direct or indirect interest of ten percent or more in a firm, partnership or other
business entity.
Z. Reversion of Assets
The Awardee shall return to OCED, upon the expiration or termination of this contract all
assets, owned or held by Awardee as a result of this contract, including, but not limited to
any CDBG funds on hand, any accounts receivable, any overpayments due to unearned
funds or costs disallowed pursuant to the terms of this contract that were disbursed to the
Awardee by the County,other than reasonable operating and deficit reserves established by
Awardee and which are connected with the real property. In the case of activities involving
real property,such reserves shall not be distributed to any partner or subcontractor prior to
repayment to OCED of the CDBG Loan. The Awardee shall at the request of the County
execute any and all documents, including but not limited to, mortgages securing the
property, UCC financing statements,and restrictive covenants, as required by the County to
effectuate the reversion of assets.
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III. The County Agrees:
Subject to the availability of funds, to pay for contracted activities according to the terms and
conditions contained within this contract in an amount not to exceed$408,482.
IV. The Awardee and OCED Agree:
A. Effective Date
1. This contract shall begin on January 1, 2009. Any costs incurred by the Awardee
prior to this date will not be reimbursed by the County.
2. This contract shall expire on December 31, 2009. Any costs incurred by the
Awardee beyond this date will not be reimbursed by the County. The term of this
agreement and the provisions herein may be extended by the County to cover any
additonal time period during which the Awardee remains in control of the CDBG
funds or other assests, Including Program Income to support CDBG eligible
activites.Any extension made pursuant to this paragraph shall be accomplished by
a writing by the County to the Awardee. Such notice shall automatically become a
part of this contract.
3. This contract may, at the sole and absolute discretion of the County and OCED,
remain in effect during any period that the Awardee has control over contract
funds,including Program Income. However,the County shall have no obligation or
responsibility to make any payment, except those described within Section 11,
Paragraph Y, or provide any type of assistance or support to the Awardee if this
contract has expired or been terminated.
B. Suspension
1. OCED may, for reasonable causes as determined in OCED's sole and absolute
discretion,temporarily suspend the Awardee's operations and authority to obligate
funds under this contract or withhold payments to the Awardee pending necessary
corrective action by the Awardee or both. Reasonable cause shall be determined by
OCED,In its sole and absolute discretion,and may include,but is not limited to:
a. Ineffective or improper use of these contract funds by the Awardee or any
of its subcontractors;
b. Failure by the Awardee to materially comply with any term or provision of
this contract;
C. Failure by the Awardee to submit any documents required by this contract;
or
d. The Awardee's submittal of incorrect or incomplete reports or other
required documents.
2. In the event of a default by the Awardee, OCED may at any time suspend the
Awardee's authority to obligate funds, withhold payments or both. These actions
may apply to only part or all of the activities funded by this contract.
3. OCED will notify the Awardee of the type of action to be taken in writing by certified
mail, return receipt requested, or In person with proof of delivery. The notification
will include the reason(s) for such action, the conditions of the action, and the
necessary corrective action(s).
C. Termination
1. Termination at Will
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This contract, In whole or in part, may be terminated by OCED upon no less than
ten (10) working days notice when OCED determines that it would be in the best
interest of OCED and the County. Said notice shall be delivered by certified mail,
return receipt requested,or in person with proof of delivery.
2. Termination for Convenience
OCED may terminate this contract, in whole part,when both parties agree that the
continuation of the activities would not produce beneficial results commensurate
with the further expenditure of funds. Both parties shall agree upon the termination
'conditions. OCED, at Its sole discretion, reserves the tight to terminate this
contract without.cause upon thirty (30) days written notice. Upon receipt of such
notice,the Awardee shall not incur any additional costs under this contract. OCED
shall be liable only for reasonable costs incurred by the Awardee prior to notice of
termination.OCED shall be the sole judge of"reasonable costs."
3. Termination Because of Lack of Funds
In the event of a funding short-fall, or a reduction in federal appropriations, or
should funds to finance this contract become unavailable, OCED may terminate
this contract upon no less than twenty-four (24) hours written notification to the
Awardee. Said notice shall be delivered by certified mall, return receipt requested,
or in person with proof of delivery. OCED shall be the final authority to determine
whether or not funds are available. OCED may at its discretion terminate,
renegotiate and/or adjust the contract award whichever is in the best interest of the
County.
4. Termination for Substantial Funding Reduction
In the event of a substantial funding reduction of the allocation to the Awardee
through Board of County Commissioners' action, the Awardee may, at its
discretion, request in writing from the. Director of OCED a release from its
contractual obligations to the County.The Director of OCED will review the effect of
the request on the community and the County prior to making a final determination.
5. Termination for Breach
OCED may terminate this contract, in whole or in part, when OCED
determines, In its sole and absolute discretion, that the Awardee Is not making
sufficient progress thereby endangering ultimate contract performance, or is not
materially complying with any term or provision of this contract, OCED may treat
such failure to comply as a repudiation of this Agreement;
Unless the Awardee's breach is waived by OCED in writing, OCED may, by written
notice to the Awardee, terminate this contract upon no less than twenty-four (24)
hours notice. Said notice shall be delivered by certified mail, return receipt
requested,or in person with proof of delivery.
Waiver of breach of any provision of this contract shall not be deemed to be a
waiver of any other breach and shall not be construed to be a modification of the
terms of this contract. The provisions herein do not limit OCED's right to legal or
equitable remedies. The County may resort to any remedy for breach provided
herein or at law, including but not limited to, taking over the performance of the
Services or any part thereof either by itself or through others.
In the event the County shall terminate this Agreement for default,the County or its
designated representatives, may immediately take possession of all applicable
equipment, materials,products,documentation,reports and data.
6. Penalties for Fraud Misrepresentation or Material Misstatement
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In accordance with the Code of Miami-Dade County, Section 2-8.4.9, any individual
or corporation or other entity that attempts to meet its contractual obligations with
the County through fraud, misrepresentation or material misstatement, shall have
its contract with the County terminated,whenever practicable,as determined by the
County. The County may terminate or cancel any other contracts which such
individual or other subcontracted entity has with the County. Such individual or
entity shall be responsible for all direct and indirect costs associated with such
termination or cancellation, including attorney's fees. The foregoing
notwithstanding, any individual or entity who attempts to meet it contractual
obligations with the County through fraud, misrepresentation or material
misstatement may be disbarred from County contracting for up to five(5)years.
7. Remedies in the Event of Default
If an Event of Default occurs,the Awardee shall be liable for all damages resulting
from the default,including but not limited to:
® lost revenues;
m the difference between the cost associated with procuring Services hereunder
and the amount actually expended by the County for reprocurement of
Services,including procurement and administrative costs;and,
® such other direct damages.
The Awardee shall also remain liable for any liabilities and claims related to the
Awardee's default,not withstanding the expiration or termination of this agreement.
8. Payment Settlement
If termination occurs, the Awardee will be paid for allowable costs incurred in
carrying out activities required by this contract up to the date and time of
termination.All compensation pursuant to this Article are subject to an audit
9. Bankruptcy
The County reserves the right to terminate this contract, If, during the term of any
contract the Awardee has with the County, the Awardee becomes involved as a
debtor in a bankruptcy proceeding, or becomes involved in a reorganization,
dissolution, or liquidation proceeding, or if a trustee or receiver Is appointed over
all or a substantial portion of the property of the Awardee under federal bankruptcy
law or any state Insolvency law.
D. Renegotiation or Modification
9. Modifications of provisions of this contract shall be valid only when in writing and
signed by duly authorized representatives of each party. The parties agree to renegotiate
this contract if OCED determines, in its sole and absolute discretion, that federal, state,
and/or County revisions of any applicable laws or regulations, or increases or decreases in
budget allocations make changes in this contract necessary. OCED shall be the final
authority in determining whether or not funds for this contract are available due to federal,
state and/or County revisions of any applicable laws or regulations,or increases in budget
allocations.
2. CONTRACT EXTENSION
The County shall have the right to exercise an option to extend this contract for up to one
year beyond the current Contract period and will notify the Awardee(s) in writing of i:he
extension. This contract may be extended beyond the initial year extension period upon
29
mutual agreement between the County and the Awardee(s), upon approval by the Director
of the Office of Community and Economic Development.
E. Right to Waive
OCED may,for good and sufficient cause, as determined by OCED in its sole and absolute
discretion, waive provisions in this contract or seek to obtain such waiver from the
appropriate authority. Waiver requests from the Awardee shall be in writing. Any waiver
shall not be construed to be a modification of this contract
OCED's failure to exercise any of its rights under this contract, or OCED's waiver of a
provision on any one occasion,shall not constitute a waiver of such rights or provision on
any other occasion. No failure or delay by OCED in the exercise of any right shall operate as
a waiver.
F.,. Budget Revisions and Changes to the CDBG Eligibility Activity Title
9. Revisions to the Budget (Attachment B) shall be requested in writing and must
comply with OCED's Contract Compliance Manual. These revisions shall not
require a contract amendment unless the amount of this contract is changed or
unless otherwise required by OCED. All budget revisions shall require the written
approval of OCED. OCED shall have no obligation to approve payment of
expenditures incurred prior to the approval of the budget revision related to such
expenditures.
2. Budget Revisions Through County Resolution
Should a portion of the funding allocation to the Awardee be rescinded by action
from the Board of County Commissioners, written notification via certified mail to
the Awardee advising of the funding reduction shall be sent by OCED no later than
5 working days of the action; written notification will constitute a contract
amendment.. The Awardee will have five working days upon receipt of certified
return receipt notification to submit a revised budget reflecting funding
adjustments. Should the modified budget not be received within the specified time,
OCED will revise the budget at its discretion. OCED In its sole and absolute
discretion will determine whether substantial reductions will necessitate revision
and resubmittal of the Scope of Service (Attachment A). Revisions to the Scope of
Services, when required, will be negotiated to the mutual satisfaction of both
parties.
3. Revisions to the CDBG eligibility activity titles under which this contract's
objectives are classified as noted in the Scope of Services shall not require a
contract amendment
i
G. Disputes
In the event an unresolved dispute exists between the Awardee and OCED, OCED shall
refer the questions, including the views of all interested parties and the recommendation of
OCED, to the County Manager for determination. The County Manager, or an authorized
representative,will issue a determination within thirty (30) calendar days of receipt and so
advise OCED and the Awardee,or in the event additional time is necessary,OCED will notify
the Awardee within the thirty (30)day period that additional time is necessary.The Awardee
agrees that the County Manager's determination shall be final and binding on all parties.
H. Headings
The section and paragraph headings in this contract are inserted for convenience only and
shall not affect ir.any ut:ay the meaning or interpretation of this contract.
Q: Minority Participation
30
e
In order to gain greater Black business participation,the Awardee may submit its contracts
to the County Manager for bidding and award in accordance with County policies and
procedures.
J. Proceedings
This contract shall be construed in accordance with the laws of the State of Florida and any
proceedings arising between the parties, in any manner pertaining or relating to this
contract,shall,to the extent permitted by law,be held in Miami-Dade County, Florida.
K. Independent Private Sector Inspector General Reviews
Pursuant to Miami-Dade County Administrative Order 3-20, the Awardee is aware that the
County has the right to retain the services of an Independent Private Sector Inspector
General (hereinafter "IPSIG"), whenever the County deems it appropriate to do so. Upon
written notice from the County, the Awardee shall make available to the IPSIG retained by
the County, all requested records and documentation pertaining to this Agreement for
inspection and reproduction. The County shall be responsible for the payment of these
IPSIG services, and under no circumstance shall the Awardee's prices and any changes
thereto approved by the County, be inclusive of any charges relating to these IPSIG
services. The terms of this provision herein, apply to the Awardee, its officers, agents,
employees, subcontractors and assignees. Nothing contained in this provision shall impair
any independent right of the County to conduct an audit or investigate the operations,
activities and performance of the Awardee in connection with this Agreement. The terms of
this Article shall not impose any liability on the County by the Awardee or any third party.
L. Notice and Contact
OCED's representative for this contract Is Richard Hoberman. The Awardee's
representative for this contract is Roberto Datorre. The Awardee's principal office is at 945
Pennsylvania Avenue, Miami Beach, FL 33139. The Awardee's telephone number is 305
538-0090.
In the event that different representatives are designated by either party after this contract
is executed, or the Awardee changes its address, notice of the name of the new
representative or new address will be rendered in writing to the other party and said
notification attached to originals of this contract.
M. Name and Address of Payee
When payment Is made to the Awardee's assignee, the name and address of the official payee is:
NIA
N. Waiver of Trial
Neither the Awardee, subcontractor, nor any other person liable for the responsibilities,
obligations, services and representations herein, nor any assignee, successor, heir or
personal representative of the Awardee, subcontractor or any such other person or entity
shall seek a jury trial' in any lawsuit, proceeding, counterclaim or any other litigation
procedure based upon or arising out of this Contract, or the dealings or the relationship
between or among such persons or entities, or any of them. Neither Awardee,
subcontractor, nor any such person or entity will seek to consolidate any such action in
which a jury trial has been waived. The provisions of this paragraph have been fully
discussed by the parties hereto, and the provisions hereof shall be subject to no
exceptions. No party has in any way agreed with or represented to any other party that the
provisions of this paragraph will not be fully enforced in all instances.
O. Assignment
The Awardee shall not assign, transfer, hypothecate or otherwise dispose of this contract,
including any rights, title or interest therein, or its power to execute such contract to any
person,company or corporation without the prior written consent of the County.
31
Pz Third Parties
This agreement is intended for the sole and exclusive benefit of the parties and Is not
intended to benefit any third party nor shall it be deemed to give rise to any rights in any
third party.
Q. Survival
The parties acknowledge that any of the obligations in this agreement, including but not
limited to Awardee's obligation to Indemnify the County, will survive the term,termination,
and cancellation hereof. Accordingly, the respective obligations of the Awardee and the
County under this agreement, which by nature would continue beyond the termination,
cancellation or expiration thereof, shall survive termination, cancellation or expiration
hereof.
R. All Terms and Conditions Included
This contract and its attachments as referenced (Attachment A - Scope of Services;
Attachment Al —Action Steps;Attachment B- Budget; Attachment B-1 Idemnification and
Insurance Requirements; Attachment C - Progress Report; Attachment ® - Information for
Environmental Review; Attachment E - Certification Regarding Lobbying; Attachment F -
Publicity, Advertisements and Signage)contain all the terms and conditions agreed upon
by the parties.
THIS SPACE IS INTENTIONALLY LEFT BLANK
32
IN WITNESS THEREOF,the parties hereto have caused this thirt�three (33)page contract to be executed by
their undersigned officials as duly authorized,this day of 009.
AWARDEE: MIAMI-DADE COUNTY
MBCDC:The London LLC
BY: BY:
!! 1
NAME: Karl Kennedy NAME:
-.._.-........................._......._...........-_........_.,,,,,,.,,.., .,..,4w.,
Carlos Alvarez
TITLE: Mayor
TITLE: Vice-President
DATE: C.3 d
�®,eAvLOaQWp
BY: • A A p `�
• y � 6
•� e
NAME (Ro rre m lam: co
0R`�P q
TITLE: President I%TLEiAlyk,Board of County Commissioners
�D �� •�p4�•a°g°
DATE
Witnesses-.,
6v-"Z
(Signature) --
c,.
Type or Print ame
BY:
( ignature) -
Type or Print Name
Federal ID Number: 69 24 4 0264
Resolution#: R-1127-08
Awardee's Fiscal Year Ending Date:9130
CORPORATE SEAL:
CONTRACT IS NOT VALID UNTIL SIGNED AND DATED BY BOTH PARTIES
33
ATTACHMENT A
RFA FY200 Acronym: LONDLLC
Date:
1/1412009 FY 2009 Activity ID:
CATEGORY: source Multi-Source: 20091 056
Housing CDBG SHIP,HODAG,C
v1D Specific:
Index Code: Contract Number:
05 IDIS Number:
1. Description -Applicant/Agency/ Developer Information: EIN: DUNS:
Applicant/Developer(A.K.A.): Non-Responsive? [] pplicanf A66,,eas: 945 PENNSYLVANIA AVE 2 FL
MDCDC: The London LLC
CITY;ST,ZIP: MIAM!BEA FL F3977
02.Organization Type: Contact: Mr.Roberto Datorre
Community Development Corporation(CDC) Phone: 305.538.0090 E•-Ailail: kart @rniamibeachcdc.org
Activity Title and Description: Sort! A enc
-y Applied FY09 Yes
Title: London .apartments (CDBG)
Description(254 Characters Max.):
New construction and rehabilitation of 33 rental apartment units for low income families on
Miami Beach.
2. Funding Information OMB No
'Y2006 FY2007 �` FY20 8
FY0
fi Pandang: LO FY07 Irunda;ig:
Index Cade: Index Code:
lr:dex Cody:
ID:S Number: IBIS Number:
!ISIS�'t mh'_r:
FY06 Contract#: FY07 Contract#: FY08 Contract#:
Evaluator: Shawn C.Topps FY2009 Funding Requested Amount: $685,000
NRSA:
N/A URTF $0 ; STAFF $4085482
(*)Entitlement City 1 Community: CAC $0 MGR $408,482
City of Miami Beach
Participating l'rllunici ali CD BCC Recom
p S P ty: � $0` $408,482
NIA
Distri ReProqr Funds $0_.
Non-Responsive? ....:u u. _... ..-.,�..,
Complied with'MUST'? Action Plan , ,
❑ $408,48� TOTAL
4. HUD Information: Public Service Cap Exemption No
HUD Cade: HUD Activity 1%vy : Ne- oral{ ita:l
12 Construction of Housing 570.201(m) 570.208(a)(3) LMH
Number of Units: 1`.rco'.1plishment Type -,rior�y ivy: :w
33 Housing Units Housing
S. Geographic Information Agencies Located in the City of Miami
Primary Activity Address:
Street Activity Geo Ciiy: t, r
s t: :_:c•Ozl.+�;,'Ctv: `f1'':l.if� �i•« i�l�
((1965-1975 Washington Avenue
Miami Beach FL 33139
I_.._ .._. ..... .
If no street address, provide cros;rc ads k1i'rMLtioF I.
Evaluator's Comments:
PROMISSORY NOTE
FY 2010 Commur&y Development Block Grant(CDBG)Loan
Miami,Florida
FOR VALUE RECEIVED the undersigned LL0 a Florida hof"fW-1
_6�t
prof 6n., MIAMI-DADS("Maker"),promises to pay to the order of MIAMI-DADS COUNTY,Florida,a
ro ,'.� i P
political subdivision of the State of Florida,together with any other holder hereof("Holder"),a t 1 1 1
N.W. 1st Street,Miami,Florida 33128,Attention: County Manager, or such other place as Holder
may from tinie to time designate in writing,the principal sum ofl'#60-
r USANO FOUR.-HVNDAEP AND tjd1#_- ANA N01100 DOLLARS ($409;482)(the
mi
"Principal"),plus interest on the outstanding principal balance at the rate of iz percent(0%)per"ero"-4 1
annum)("Interest or Interest Rate"),to be paid in lawful money of the United States of America in
accordance with the terms of this Promissmy Note.
This Promissory Note is made to evidence the loan made to the undersigned by DHCD to
provide Community Development Block Grant("CDBG")funds to the Borrower as reflected
in the FY2010 CDBG contract between the parties dated 2010(hereinafter
"Contract"). Stated monthly principal payments of L11,346.72 are to begin on the Vt day of
the month following the execution of this Note, for a period of three (3)years. If Borrower
complies strictly with all terms of the Contract,interest shall accrue at zero percent(0%)for
the terra of this Note and the aforementioned monthly principal payments shall bewaived and
the principal sum shall be forgiven. (This means that Borrower is not required to make
monthly-ya-yinents of principal or interest unless notified by the County that Borrower is not
complying with the terns of the Contract.) Pursuant to the Conti-act,in the event the Property
tied to the Activity is sold during the contract period or if the construction has not been
completed within three(3)years of the date of execution of this Note,orif the requirements set
forth in the Contract are not strictly complied with or Borrower fails to properly perform
under said Conti-act, Miami-Dade County shall be entitled to the reimbursement of its
S408.4 ► contribution to the Project,plus twelve percent(12%) compound interest until the
County's principal is fully repaid.
Pursuant to 24 C.F.R. 570.503(b)(7)(i), and except as provided in 24 C.F.R. 570.203(7)(ii),
funds in excess.of$25,000 used by Maker to improve or acquire real property shall be used to
meet a national objective(as defined in 24 C.F.R.§570.208)until five(5)years after expiration
of the Contract or Project Completion, whichever is later. IN NO EVENT SHALL TfHS
NOTE BE FORGIVEN BEFORE MAKER COMPLIES WITH THIS REQUIREMENT. In
the event this provision conflicts with any provision of any other Contract or Loan Document,
this provision shall prevail.
This Note is secured by a Mortgage and Security Agreement(the"Mortgage")encumbering
certain real property located in.Miami-Dade County,Florida(the"Premises"). The foregoing,the
Contract, and all other agreements, instruments and documents delivered in comiection with this
Note are collectively referred to as the "Loan Documents.
ARA341 3119.4159149,48U;CW
This Note has been executed and delivered in,and is to be governed by and construed ruder
the laws of,the State of Florida,as amended,except as modified by the laws and regulations of the
United States of America.
Maker shall have no obligation to pay interest or payments in the nature of interest in excess
of the maximum rate of interest allowed to be contracted for by law,as changed from time to time,
applicable to this Dote(the"Maximum Rate"). Any interest in excess of the Maximum Rate paid by
Maker ("Excess Sum") shall be credited as a payment of principal, or, if Maker so requests in
writing,returned to Maker,or,if the indebtedness and other obligations evidenced by this Note have
been paid in full, returned to Maker together with interest at the same rate as was paid by Maker
during such period. Any Excess Sum credited to Principal shall be credited as of the date paid to
Holder. The Maximum Rate varies from time to time and from time to time there may be no specific
maximum rate. Holder may,without such action constituting a breach of any obligations to Maker,
seek judicial determination of the Maximum Rate of interest,and its obligation to pay or credit any
proposed excess sum to Maker.
The "Default Interest Rate" and, in the event no specific maximum rate is applicable,the
Maximum Rate shall be eighteen percent(18%)per annum.
Folder shall have the right to declare the total unpaid balance of this Note to be immediately
due and payable in advance of the Maturity Date upon the failure of Maker to pay when due,taking
into account applicable grace periods,any payment o0rincipal or Interest or other amount due under
the Loan Documents; or upon the occurrence of an event of default,which is not cured prior to the
expiration of any applicable cure periods,pursuant to any other Loan Documents now or hereafter
evidenevig, securing or guarantying payment of this Note. Exercise of this right shall be without
notice to Maker or to any other person liable for payment hereof, notice of such exercise being
hereby expressly waived.
Any payment under this Note or the Loan Documents not paid when due(at maturity,upon
acceleration or otherwise) taking into account applicable grace periods shall bear interest at the
Default Interest Rate from the due date until paid.
Provided Holder has not accelerated this Note,Maker shall pay Holder a late charge of five
percent(5%)of any required payment which is not received by Folder within ten(1 Q)days of the
due date of said payment. The parties agree that said charge is a fair and reasonable charge for the
late payment and shall not be deemed a penalty.
Time is of the essence. In the event that thus Note is collected by law or through attorneys at
law, or under their advice, Maker agrees, to pay all reasonable costs of collection, including
reasonable attorneys'fees, whether or not suit is brought,and wlhether incurred In connection with
collection,trial,appeal, ban1cruptcy or other creditors proceedings or otherwise,
This Note may be paid in whole or in part at anytime by Maker without penalty. Acceptance
of partial payments or payments narked "payment ul full" or"in satisfaction" or words to similar
effect shall not affect the duty of Maker to pay all obligations due,and shall not affect the right of
Holder to pursue all remedies available to it under any Loan Documents.
Maker agrees to assign any proceeds to the county fi•om any contract between the county,its
X41.4?-1!9119Ak59149.48%LC%V
2
agencies or instrumentalities and the Maker or any firin,corporation,partnership or joint venture in
which the Maker has a controlling financial interest in order to secure repayment of the loan.
"Controlling financial interest"shall mean ownership,directly or indirectly to ten percent ormore of
the outstanding capital stock in any corporation or a direct or indirect interest of ten percent or more
in a firm,partnership or other business entity.
The remedies of Holder shall be cumulative and concurrent,and may be pursued singularly,
successively or together,at the sole discretion of Holder,and may be exercised as often as occasion
therefor shall arise. No action or omission ofHolder,including specifically any failure to exercise or
forbearance in the exercise of any remedy, shall be deemed to be a waiver or release of the same,
such waiver or release to be effected only tbrough a written document executed by Holder and then
only to the extent specifically recited therein. A waiver or release with reference to any one event
shall not be construed as continuing or as constituting a course of dealb)g,nor shall it be construed as
a bar to,or as a waiver or release of,any subsequent remedy as to a subsequent event.
Any notice to be given or to be served upon any party in connection with this Note,whether
required or otherwise,may be given in any manner permitted under the Loan Documents.
The term"other person liable for payment ofthis Note"shall include any endorser,guarantor,
surety or other person now or subsequently primarily or secondarily liable for the payment of this
Note,whether by signing this Note or any other instrument.
This Note is a fiill recourse Note and Holder shall have all remedies available to it at law and
at equity.
Whenever the context so requires,the neuter gender includes the feminine and/or masculine,
as the case may be,and the singular number includes the plural,and the plural number includes the
singular.
This Note shall be the joint and several obligation of all makers, endorsers, co-signers,
guarantors, and sureties, and shall be binding upon them and their successors and assigns. All
makers,endorsers, co-signers,guarantors,and sureties hereof agree jointly and severally to pay all
costs of collection and of suit and foreclosure,including reasonable attorneys'fees. The Note Holder
may enforce its rights under this Note against each party individually or jointly,and may enforce its
rights against any party in any order.Any party under this Note may be required to pay all amounts
owed.
Maker and fuiy other person liable for the payment of this Mote respectively, hereby (a)
expressly waive any valuation and appraisal,presentment,demand for payment,notice of dishonor,
protest, notice of nonpayment or protest, all other forms of notice whatsoever, and diligence in
collection; (b) consent that Holder may, fiorn time to time and without notice to any of them or
demand,(i)extend,rearrange,renew or postpone any or all payments,(ii)release,exchange,add to
or substitute all or any part of the collateral for this Note, and/or (iii) release Maker (or any
co-maker) or any other person liable for payment of this Note, without in any way modifying,
altering, releasing, affecting or limiting their respective liability or the lien of any security
instrument;and(c)agree that Holder,in order to enforce payment of this Note against any of them,
shall not be required first to institute any suit or to exhaust any of its remedies against Maker(or any
MIA3•419119.4"9144.48TCIV 3
co-maker}or against any other person liable for payment of this Note or to attempt to realize on any
collateral for this Note.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ITS RIGHTS OR THE RIGHTS OF ITS HEIRS,ASSIGNS,
SUCCESSORS OR PERSONAL REPRESENTATIVES TO A TRIAL BY JURY,IF ANY,IN
ANY ACTION,PROCEEDING OR SUIT,WHETHER ARISING IN CONTRACT,TORT
OR OTHERWISE,AND WHETHER ASSERTED BY WAY OF COMPLAINT,ANSWER,
CROSSCLAIM,COUNTERCLAIM,AFFIRMATIVE DEFENSE OR OTHERWISE,BASED
ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS NOTE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT TO BE EXECUTED IN
CONNECTION HEREWITH OR WITH THE INDEBTEDNESS OR THE RENEWAL,
MODIFICATION OR EXTENSION OF ANY OF THE FOREGOING OR ANY FUTURE
ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
LENDER'S EXTENDING CREDIT TO A BORROWER AND NO WAIVER OR
LIMITATION OF LENDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS
IN WRITING AND MANUALLY SIGNED ON LENDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by Miami-
Dade County,Florida as part of the transaction with Borrower and that,but for Maker's agreement,
Miami-Dade County,Florida would not have agreed to lend the Borrower the Principal on the terms
and at the Interest Rate.
r
WHEREFOR1;Maker has executed this Note on the aQ t day of jt
yt ,2010.
By: MBCDC: The London LLC
a Florida.not-for-profit Corporation
By: �== .
Roberto Datorre,
President and CEO
_ .....
r'J
Karl Ketitiedy, Vice President;1
aGn34 i 8119.4Z9149.481LCW
i
THIS INSTRUMENT WAS PREPARED BY:
Brenda K.Neuman,ESQ.
Assistant county Attorney
Miami-Dade County,Florida
111 N.W.First Street,Suite 2810
Miami,Florida 33128
MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES, RENTS AND PROFITS
THIS MORTGAGE AND SECURITY AGREEMENT AND ASS,! NMENT OF LEASES,
RENTS AND PROFITS ("the "Mortgage"), dated this ,g l f� day of I_t` C-v_C 2014 by
MBCDC: The London, LLC, a Florida for-profit corporation with an address of
-inn Miami Beach, Florida 33j" ("Mortgagor") in favor of
MIAMI-DAIJE COUNTY, a political subdivision of the State of Florida with an address of 111 N.W.
First Street, Miami, FL 33128, Attn: County Manager("Mortgagee").
WITNESSETH
That for good and valuable consideration, and to secure the payment or the Promissory
Note executed by the Mortgagor in favor of the Mortgagee in the original principal amount of
FOUR HUNDRED AND EIGHT THOUSAND FOUR HUNDRED AND EIGHTY-TWO AND
NO/100 DOLLARS (U.S. $408,482), as the same may be renewed, extended or amended, from
time to time, and together with all accrual interest, including, without limitation, such interest as
may be added to the principal amount under the terms of such instrument (referred to as the
"Note" or the "Promissory Note"), the final payment of which is due on or before the due date
provided in the Promissory Note and to secure any other indebtedness owed by Mortgagor to
Mortgagee, now or hereafter arising under the terms of this Mortgage or in any other instrument
constituting additional security for the Note, and all other sums of money secured as provided
under this Mortgage, the Mortgagor does grant, bargain, sell, remise, release, and convey unto
the Mortgagee, its successors and assigns, the real estate described in Exhibit A, which is
attached and made a part of this Mortgage, which, together with the property hereinafter
described, is referred to herein as the"Property";
TOGETHER WITH:
(a) All buildings and improvements, now or hereafter located on the Property, all
privileges and other rights now or hereafter made appurtenant thereto, including, without
limitation, all right, title and interest of Mortgagor in and to all streets, roads and public places,
opened or proposed, and all easements and rights-of-way, public or private, now or hereafter
used in connection with the Property; and
1
(b) All fixtures, fittings, furnishings, appliances, apparatus, goods, equipment, and
machinery, including, without limitation, all gas and electric fixtures, radiators, heaters, engines
and machinery, boilers, ranges, ovens, elevators and motors, escalators, bathtubs, sinks, water
closets, basins, pipes, faucets and other ventilating and air-conditioning, plumbing, lighting and
heating fixtures, mirrors, mantels, refrigerating plants, refrigerators, iceboxes, dishwashers,
carpeting, furniture, laundry equipment, cooking apparatus and appurtenances, washing
machines, dryers, trash compactors, TV antennas, phone systems, incinerators, trash
receptacles, sprinklers and fire extinguishing systems,s smoke detectors and
9 9 Y other fire alarm
devices, door bell and alarm systems, screens, awnings, doors, storm and other detachable
doors and windows, built-in cases, counters, trees, hardy shrubs and perennial flowers, interior
and exterior cleaning, plowing, lawn care, maintenance and repair machinery, vehicles or
equipment, and all building material, supplies and equipment now or hereafter delivered to the
Property and installed or used in the Property, all other fixtures and personal property of whatever
kind and nature owned by the Mortgagor on the date of this Mortgage contained in or hereafter
placed in any building standing on the Property; such other goods, equipment, chattels and
personal property as are usually furnished by landlords in letting premises of the character hereby
conveyed, and all renewals or replacements thereof or articles in substitution thereof, all of the
estate, right, title and interest of the Mortgagor in and to all property of any nature whatsoever,
now or hereafter situated on the Premises or intended to be used in connection with the operation
thereof, all of which shall be deemed to be fixtures and accessions to the freehold and a part of
the realty as between the parties hereto, and all persons claiming by, through or under them, and
shall be deemed to be a portion of the security for the indebtedness herein mentioned and
secured by the Mortgage. If the lien of this Mortgage on any fixtures or personal property is or
becomes subject to a lease agreement, conditional sale agreement or chattel mortgage of the
Mortgagor, any and all deposits made thereof or therefor are hereby assigned to the Mortgagee,
together with the benefit of any payments now or hereafter made thereon. There is also
transferred, set over, and assigned hereby Mortgage to Mortgagee, its successors and assigns,
all leases and use agreements of machinery, equipment and other personal property of
Mortgagor in the categories hereinabove set forth, under which Mortgagor is the lessee of, or
entitled to use, such items and r Mortgagor a
gees to execute and deliver to Mortgagee specific
separate assignments to Mortgagee of such leases and agreements when requested 9 q ted b y
Mortgagee, but nothing herein constitutes Mortgagee's consent to any financing of any fixture or
personal property, and nothing herein shall obligate Mortgagee to perform any obligations of
Mortgagor under any such leases or agreements unless it so chooses, which obligations
Mortgagor hereby covenants and agrees to well and punctually perform. The items set forth in
this paragraph(b)are sometimes hereinafter separately referred to as "Collateral"; and
(c) All rents, royalties, issues, profits, revenue, income and other benefits from the
property described in paragraph (a) and (b) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given to Mortgagor so
long as no default has occurred hereunder, to collect, receive, take, use and enjoy such rents,
royalties, issues, profits, revenue, income and other benefits as they become due and payable,
but not in advance thereof. The foregoing assignment shall be fully operative without any further
action on the part of either party and specifically Mortgagee shall be entitled, at its option upon the
2
occurrence of a default hereunder, to all rents, royalties, issues, profits, revenue, income and
other benefits from the property described in paragraphs (a) and (b) hereof whether or not
Mortgagee takes possession of such property. Upon any such default hereunder, the permission
hereby given to Mortgagor to collect such rents, royalties, issues, profits, revenue, income and
other benefits from the property described in paragraphs (a) and (b) hereof-shall terminate and
such permission shall be reinstated upon a cure of the default upon Mortgagee's specific
consent. Neither the exercise of any rights under this paragraph by Mortgagee nor the application
of any such rents, royalties, issues, profits, revenue, income or other benefits to the indebtedness
and other sums secured hereby, shall cure or waive any default or notice of default hereunder or
invalidate any act done pursuant hereto or to any such notice, but shall be cumulative of all other
rights and remedies.
(d) All right, title and interest of Mortgagor in and to all leases now or hereafter on or
affecting the property described in paragraphs (a) and (b) hereof, together with all security
therefor and all monies payable thereunder, subject, however, to the conditional permission
hereinabove given to Mortgagor to collect the rentals under any such lease. The foregoing
assignment of any lease shall not be deemed to impose upon Mortgagee any of the obligations or
duties of Mortgagor provided in any such lease, and, Mortgagor agrees to fully perform all
obligations of the lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to
send to Mortgagee a list of all leases covered by the foregoing assignment and as any such lease
shall expire or terminate or as any new lease shall be made, Mortgagor shall so notify Mortgagee
in order that at all times Mortgagee shall have a current list of all leases affecting the property
described in paragraphs (a) and (b)hereof. Mortgagee shall have the right, at any time and from
time to time, to notify any lessee of the rights of Mortgagee as provided by this paragraph. From
time to time, upon request of Mortgagee, Mortgagor shall specifically assign to Mortgagee as
additional security hereunder, by an instrument in writing in such form as may be approved by
Mortgagee, all right, title and interest of Mortgagor in and to any and all leases now or hereafter
on or affecting the Premises, together with all security therefor and all monies payable hereunder,
subject to the conditional permission hereinabove given to Mortgagor to collect the rentals under
any such lease. Mortgagor shall execute and deliver to Mortgagee any notification, financing
statement or other document reasonably required by Mortgagee to perfect the foregoing
assignment as to any such lease.
(e) To the extent of the indebtedness secured herein, all judgments, awards of damages
and settlements hereafter made as a result of or in lieu of any taking of the Property or any part
thereof or interest therein under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Property or the improvements thereon or any part
thereof or interest therein, including any award for change of grade of streets.
(f) To the extent of the indebtedness secured herein, all insurance policies covering
all or any portion of the Property and all blueprints, plans, maps, documents, books and records
relating to the Property.
(g) To the extent of the indebtedness secured herein, all proceeds of the conversion,
3
voluntary or involuntary, of any of the foregoing into cash or liquidated claims.
TO HAVE AND TO HOLD the above granted Property, with all the privileges and
appurtenances to the same belonging to the said Mortgagee, its successors and assigns, to its
and their use and behoof forever.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid to the Holder
of the Note principal and interest under the Note, at the time and in the manner stipulated therein,
and shall pay or cause to be paid all other sums payable hereunder and all indebtedness hereby
secured, then, in such case, the estate, right, title and interest of the Mortgagee in the Property
shall cease, determine and become void and the Mortgagee shall, cancel, release and discharge
this Mortgage.
ARTICLE ONE
Mortgagor's Covenants
Mortgagor covenants and agrees with Mortgagee that:
1.01 Title.
a. The Mortgagor warrants that; it has good and marketable title to an
indefeasible fee simple estate in the Property, subject to no liens, charges or encumbrances other
than the lien of this Mortgage and of any encumbrances, if any, described on Exhibit B hereto
("Permitted Encumbrances"); that it has good right and lawful authority to mortgage the Property
in the manner and form herein provided; that Mortgagor has full power and authority to mortgage
the Property in the manner and form herein done or intended hereafter to be done; that this
Mortgage is and shall remain a valid and enforceable lien on the Property, subject only to those of
the Permitted Encumbrances which are stated on Exhibit B hereto to constitute "Prior
Encumbrances"; that Mortgagor and its successors and assigns shall warrant and defend the
same and priority of this lien forever against the lawful claims and demands of all P ersons
whomsoever (other than the Prior Encumbrances); and, that this covenant shall not be
extinguished by any foreclosure hereof but shall run with the land.
b. Mortgagor shall maintain the property free of all security interests, liens and
encumbrances, other than Permitted Encumbrances, the security interest hereunder or any lien or
encumbrance disclosed to and approved by Mortgagee in writing.
C. The Mortgagor shall do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of assignments,
transfers and assurances as the Mortgagee shall from time to time require, for the better assuring,
conveying, assigning, transferring and confirming unto the Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be., or which the Mortgagor may
be or may hereafter become bound to convey or assign to the Mortgagee, or for carrying out the
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intention of facilitating the performance of the terms of this Mortgage, or for filing, registering or
recording this Mortgage and, on demand, shall execute and deliver, and hereby authorizes the
Mortgagee to execute in the name of the Mortgagor to the extent it may lawfully do so, one or
more financing statements, chattel mortgages or comparable security instruments, to evidence
more effectively the lien hereof upon the Collateral.
d. The Mortgagor shall, upon the execution of this Mortgage, the Rental
Regulatory Agreement, and the Note (the "Loan Documents"), cause all recordable Loan
Documents, to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to protect the lien
hereof upon, and the interest of the Mortgagee in the Property.
e. The Mortgagor shall pay for all filing, registration or recording fees, and all
expenses incident to the preparation, execution and acknowledgment of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the Collateral, and any
instrument of further assurance, and all federal, state, county and municipal stamp taxes and
other taxes, duties, imposts, assessments and charges arising out of or in connection with the
execution and delivery of the Note, this Mortgage, any mortgage supplemental hereto, any
security instrument with respect to the Collateral or any instrument of further assurance.
f. The Mortgagor, so long as all or part of the indebtedness secured hereby is
outstanding shall preserve in its present form and keep in full force and effect its existence, as a
legal entity under the laws of the state of its formation and shall comply with aJl regulations, rules,
ordinances, statutes, orders and decrees of any governmental authority or court applicable to the
Premises or any part thereof.
1.02 Payment of Note and Escrow Account.
a. The Mortgagor shall promptly and punctually pay principal, interest, and all
other sums due or to become due pursuant to the terms of the Note, in the time and manner set
forth therein. On the first day of each month until said Note is fully paid, a sum, as estimated by
the Mortgagee, equal to the total rental payments due under any ground leases which have not
been subordinated to this Mortgage, if any, and the taxes and special assessments next due on
the Property encumbered by this Mortgage, plus the premiums that will next become due and
payable on insurance policies as may be required under section 1.05 hereof, less all sums already
paid for each divided by the number of months to elapse before one (1) month prior to the date
when such ground rents, premiums, taxes and special assessments will become delinquent, shall
be segregated by the Mortgagor to pay said ground rents, taxes, special assessments and
insurance premiums. Such segregated sums shall be held by Mortgagor in interest bearing
accounts and shall be kept separate and apart from other funds of the Mortgagor. Mortgagor
shall, at the written request of the Mortgagee, furnish any information requested by Mortgagee
concerning such accounts. The Mortgagor shall pay the ground rents, taxes, special
assessments and insurance premiums when each is due (the "Reserve Payments") and before
they become delinquent. In the event the Mortgagor is late in making any of the Reserve
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Payments, the Mortgagee may require the Mortgagor to deposit the Reserve Payments with the
Mortgagee on the first of each month until the Note is paid in full. The Reserve Payments should
be held by the Mortgagee without any allowance of interest to the Mortgagor and need not be kept
separate and apart of other funds of the Mortgagee. All payments mentioned in this paragraph
and all payments to be made under the Note secured hereby shall be added together and the
aggregate amount thereof shall be paid by the Mortgagee to the following items in the order set
forth: (i) said ground rents, if any, taxes, special assessments, fire and other hazard insurance
premiums, (ii)interest on the Note secured hereby; and (iii) amortization of the principal of said
Note. Notwithstanding the foregoing escrow requirements, the Mortgagor shall not be obligated to
segregate, or to pay to the Mortgagee, ground rents, if any, taxes, special assessments, fire and
other hazard insurance premiums if the Mortgagor is required to pay such su ms t o
the Holder of a
Permitted Encumbrance.
b. The arrangement provided for in the section 1.02 is solely for the added
protection of the Mortgagee and entails no responsibility on the Mortgagee's part beyond the
allowing of due credit, without interest, for the sums actually received by it. Upon assignment of
the Mortgage by the Mortgagee, any funds on hand shall be turned over to the new mortgagee
and any responsibility of the Mortgagee for such funds shall terminate.
C. If the total of any Reserves described in section 1.02(a) hereof shall exceed
the amount of payments actually applied by Mortgagee as set forth in section 1.02(a) any excess
Escrow Funds may be credited by Mortgagee to subsequent Escrow payments coming due or, at
the option of the Mortgagee, refunded to the Mortgagor. Any deficiency in the Escrow Account
shall be paid by the Mortgagor within five (5) business days from receipt of written notification
from the Mortgagee that the deficiency has occurred. If there shall be a default under any of the
provisions of this Mortgage, the Mortgagee may apply any excess Escrowed Funds against the
amounts due and payable under the Loan Documents.
1.03 Maintenance and Re air. The Mortgagor shall keep the Property in good condition
and operating order and shall not commit or permit any waste thereof. Mortgagor shall diligently
maintain the Property and make any needed repairs, replacements, renewals, additions and
improvements, and complete and restore promptly and in a good workmanlike manner.
Mortgagor shall not remove any part of the Collateral from the Property or demolish any part of
the Property or materially alter any part of the Property without the prior written consent of the
Mortgagee. Mortgagor shall permit Mortgagee or its agents the opportunity to inspect the
Property, including the interior of any structures, at any reasonable time.
1.04 Compliance with Laws. The Mortgagor shall comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the Property or the operation thereof,
and shall pay all fees or charges of any kind in connection therewith.
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1.05 Insurance.
a. The Mortgagor shall keep all buildings and improvements now or
hereafter situated on the Property insured against toss or damage by fire and other hazards as
may reasonably be required by Mortgagee, including, without limitation: (i) rent loss or business
interruption insurance whenever in the opinion of Mortgagee such protection reasonably is
necessary; and (ii) flood and earthquake insurance whenever in the opinion of Mortgagee such
protection is reasonably necessary. Mortgagor shall also provide liability insurance with such
limits for personal injury and death and property damage as may require.
Mortgagee
Y re q
b. The Mortgagor shall initially maintain, until Mortgagee shall otherwise
indicate in writing, fire and extended coverage insurance in an amount of not less than the full
replacement cost of the Property in accordance with HUD's requirements. The policy shall be
written by a company or companies having a Best's rating of at least A. Public liability
insurance shall be provided on a comprehensive basis in an amount of Five Hundred Thousand
and 00/100 Dollars ($500,000.00) per occurrence for bodily injury and property damage and
rental or business interruption insurance in an amount sufficient to cover any foss of rents or
income for the Property suffered by the Mortgagor for a period of up to six(6) months.
c. - All policies of insurance to be furnished hereunder shall be in a form
satisfactory to Mortgagee, with Standard Mortgagee Clauses attached to all policies in favor of
the Mortgagee, including a provision requiring that the coverage evidenced thereby shall not be
terminated or materially modified without thirty (30) days' prior written notice to the Mortgagee.
Mortgagor shall deliver all policies, including additional and renewal policies, to Mortgagee and
shall deliver renewal policies not less than ten (10) days prior to their expiration date except that
if the originals of such policies are at any time held by the holder of a Prior Encumbrance, then
Mortgagor shall deliver to Mortgagee certified copies of such policies together with original
certificates hereof. The Mortgagee shall be shown as additional insured with respect to this
coverage.
d. No separate insurance shall be taken out by the Mortgagor without the
prior written approval of the Mortgagee. In the event the Mortgagee approves additional
insurance, the Mortgagor shall immediately notify Mortgagee whenever any separate insurance
is issued and shall promptly deliver to Mortgagee certified copies of the policy or policies of
such insurance. All additional insurance policies shall be in the form required by Paragraph (c)
above. In the event of a foreclosure, or other transfer of title to the Property in lieu of
foreclosure or by purchase at the foreclosure sale all interest in any insurance policies in force
shall pass to Mortgagee, transferee or purchaser as the case may be, and to the holders of the
Permitted Encumbrances as their interests may appear,
1.06 Casualty. Mortgagor shall promptly notify Mortgagee of any loss whether covered
by insurance or not. in case of loss or damage by fire or other casualty, Mortgagee shall have the
7
right to approve the settlement of any claim made under insurance policies covering the Property
or to allow Mortgagor to agree with the insurance company or companies on the amount to be
paid in regard to such loss. Provided that there is no default hereunder, such insurance proceeds
shall be paid. to the Mortgagee to the extent of the indebtedness held by the Mortgagee without
any allowance of rebuilding or restoration of buildings or improvements on said Property. Such
proceeds shall be used to retire the indebtedness unless the Mortgagor demonstrates to the
satisfaction of the Mortgagee that the Property may be restored to at least equal value and
substantially the same character in which case the proceeds shall be made available to the
Mortgagor for rebuilding or restoration of buildings or improvements on said Property. in that
event, such proceeds shall be made available in the manner and under the conditions that the
Mortgagee may require, including without limitation: (i) approval of plans and specifications of
such work before such work shall be commenced; (ii) suitable completion or performance bonds
and Builder's All Risk insurance; and (iii) no insurer claims any rights of participation and/or
assignment of rights with respect to the indebtedness secured hereby. The buildings and
improvements shall be so restored or rebuilt so as to be of at least equal value and substantially
the same character as prior to such damage or destruction. Any surplus which may remain out of
said insurance proceeds after payment of such cost of rebuilding or restoration shall, at the sole
option of the Mortgagee, be applied on account of the indebtedness secured hereby or be paid to
Mortgagor. Any insurance proceeds received by Mortgagor pursuant to the provisions of this
section 1.06 shall remain subject to the lien of this Mortgage, and no holder of any Permitted
Encumbrance shall attach, gamish, execute or otherwise attempt to compel payment or delivery
of such sums to it or to any other person so long as such sums are used or are to be used for the
purposes set forth in this paragraph 1.06.
1.07 Condemnation. The Mortgagor, immediately upon obtaining knowledge of the
institution of any proceeding for the condemnation of the Property or any portion thereof, shall
notify Mortgagee in writing of the pendency thereof. The Mortgagor hereby assigns, transfers and
sets over unto the Mortgagee to the extent of the indebtedness secured herein, all compensation,
rights of action, proceeds of any award and any claim for damages for any of the Property taken
or damaged under the power of eminent domain or by condemnation or by sale of the Property in
lieu thereof. Mortgagee may, at its option, commence, appear in and prosecute, in its own name,
and for its own account, any action or proceeding, or make any compromise or settlement, in
connection with the condemnation, taking under the power of eminent domain, or sale in lieu
thereof. After deducting therefrom all of its reasonable expenses, including attorneys' fees, the
Mortgagee shall apply the proceeds of the award to the reduction of the indebtedness secured by
this Mortgage unless Mortgagor demonstrates to the satisfaction of the Mortgagee that the value
and character of the Property shall be maintained, in which case, the Mortgagee shall hold said
proceeds without any allowance of interest and make them available for restoration or rebuilding
of the Property. In the event that the Mortgagee elects to make said proceeds available to
reimburse Mortgagor for the cost of the rebuilding or restoration of the buildings or improvements
on said Property, such proceeds shall be made available in the manner and under the conditions
that the Mortgagee may require provided under Section 1.06 above. If the proceeds are made
available by the Mortgagee to reimburse the Mortgagor for the cost of said rebuilding or
restoration, any surplus which may remain out of said award after payment of such cost of
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rebuilding or restoration shall at the option of the Mortgagee be applied on account of the
indebtedness secured hereby or be paid to Mortgagor. Mortgagor agrees to execute such further
assignments of any compensation, award, damages, right of action and proceeds, as Mortgagee
may require. Any sums received by Mortgagor pursuant to the provisions of this paragraph 1.07
shall remain subject to the lien of this Mortgage, and no holder of any Permitted Encumbrance
shall attach, garnish, execute or otherwise attempt to compel payment or delivery of such sums to
it or to any other person so long as such sums are used or are to be used for the purposes set
forth in this paragraph 1.07.
1.08 Liens and Encumbrances. The Mortgagor shall not, without the Mortgagee's
express written consent, permit the creation of any liens or encumbrances on the Property other
than the lien of this Mortgage and of any Permitted Encumbrances, and shall pay when due all
obligations, lawful claims or demands of any person, which, if unpaid, might result in, or permit the
creation of, a lien or encumbrance on the Property or on the rents, issues, income and profits
arising therefrom, whether such lien would be senior or subordinate hereto, including all claims of
mechanics, materialmen, laborers and others for work or labor performed, or materials or supplies
fumished in connection with any work done in and to the Property and the Mortgagor will do or
cause to be done everything necessary so that the lien of this Mortgage is fully preserved, at no
cost to the Mortgagee.
1.09 Taxes and Assessments. The Mortgagor shall pay in full when due, and in any
event before any penalty or interest attaches, all general taxes and assessments, special taxes,
special assessments, water charges, sewer service charges, and all other charges against the
Property and shall furnish to Mortgagee official receipts evidencing the payment thereof.
1.10 Indemnification. Mortgagor shall indemnify and hold harmless the Lender from
any liability, claims or losses incurred by Lender in favor of third parties resulting from the
disbursement of the Loan proceeds to Mortgagor or from the condition of the Premises,
whether arising during or after the term of the Loan, whether as a result of a claim made under
this Agreement, by the Lender under the Contracts or otherwise. The Mortgagor shall
indemnify and hold harmless the County and its officers, employees, agents and
instrumentalities from any and all liability, losses or damages, including attorneys' fees and
costs of defense, which the County or its officers, employees, agents or instrumentalities may
incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or
nature arising out of, relating to or resulting from the performance of this Contract by the
Mortgagor or its employees, agents, servants, partners principals or subcontractors. Mortgagor
shall pay all claims and losses in connection therewith and shall investigate and defend all
claims, suits or actions of any kind or nature in the name of the County, where applicable,
including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which
may issue thereon. Mortgagor expressly understands and agrees that any insurance protection
required by this Contract or otherwise provided by Mortgagor shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the County or its officers,
employees, agents and instrumentalities as herein provided. This provision shall survive the
repayment of the Loan and shall continue in full force and effect so long as the possibility of
9
such liability, claims, or losses exists.
1.11 Sale of Property.
a. In order to induce Mortgagee to make the loan evidenced by the Note,
Mortgagor agrees that if the Property or any part thereof or interest therein is sold, assigned,
transferred, conveyed, further mortgaged,.encumbered, or otherwise alienated by Mortgagor,
whether voluntarily, involuntarily or by operation of law, or that if the person(s) managing the
Property is replaced, in either or any case without the prior written consent of Mortgagee,
Mortgagee, at its option, may declare the Note secured hereby and all other obligations hereunder
to be forthwith due and payable within fifteen (15) days of written notice, provided, however,
Mortgagee shall not withhold its consent unless such mortgaging or encumbering of the Property,
or change to its ownership or management will have a material adverse affect on the Mortgagee's
security for the indebtedness secured by this Mortgage. The Mortgagee may condition its
consent upon an increase in the interest rate of the Note to the then current market rate for new
loans secured by property similar to the Property, and the Mortgagor shall pay all costs incurred
thereby, including any costs of amending the Note and Mortgage and of obtaining a title insurance
endorsement. In addition, the Mortgagee may charge a fee for processing any application
seeking the consent of Mortgagee.
b. Any change in the legal or equitable title of the Property or in the beneficial
ownership of the Property, whether or not of record and whether or not for consideration, or sale
or other disposition of the stock of the borrowing entity except by devise or descent, shall be
deemed a transfer of an interest in the Property. In connection herewith, the financial stability and
managerial and operational ability of Mortgagor are a substantial and material consideration to
Mortgagee in its agreement to make the loan to Mortgagor secured the Mortgage. The Mortgagor
acknowledges that the transfer of an interest in the Property or change in the person or entity
operating and managing the Property may significantly or materially alter and reduce Mortgagee's
security for the indebtedness secured hereby.
C. In the event that ownership of the Property, or any part thereof, becomes
vested in any person or persons other than Mortgagor, without the prior written approval of
Mortgagee, the Mortgagee may waive such default and substitute the Mortgagor with the
Mortgagor's successor or successors in interest in the same manner as with Mortgagor, without in
any way releasing, discharging or otherwise affecting the liability of Mortgagor hereunder, or the
Mortgage indebtedness hereby secured. No sale of the Property, no forbearance on the part of
Mortgagee, no extension of the time for the payment of the Mortgage indebtedness or any change
in the terms thereof consented to by Mortgagee shall in any way whatsoever operate to release,
discharge, modify, change or affect the original liability of Mortgagor herein, either in whole or in
part, nor shall the full force and effect of this lien be altered thereby. Any deed conveying the
Property, or any part thereof, shall provide that the grantee thereunder assumes all of the
grantor's obligations under this Mortgage, the Note and all other instruments or agreements
evidencing or securing the repayment of the Mortgage indebtedness. In the. event such deed
shall not contain such provisions, the grantee under such deed shall be deemed to assume, by its
10
acquisitions of the Property all the obligations established by the Loan Documents.
d. Mortgagor shall not sell, assign, transfer or otherwise dispose of the
Collateral or any interest therein and shall not do or permit anything to be done that may impair
.the Collateral without the prior consent of the Mortgagee, unless the Mortgagor is not in default
under the terms of this Mortgage and the Collateral which is to be disposed is fully depreciated or
unnecessary for use in the operation of the Property.
1.12 Management. The Mortgagor agrees that the Mortgagee shall have the right to
employ professional management for the Property at any time that the Mortgagor is in default
under any provision of this Mortgage for a period of more than forty-five (45) days. Such
employment shall be at the sole discretion of the Mortgagee and NOTHING herein shall obligate
the Mortgagee to exercise its right to install professional management. The cost of such
management shall be borne by Mortgagor and shall be treated as an advance under Section 1.
13.
1.13 Advances. If Mortgagor shall fail to perform any of the covenants herein contained
or contained in any instrument constituting additional security for the Note, the Mortgagee may,
without creating an obligation to do so, make advances on its behalf. Any and all sums so
advanced shall be a lien upon the Property and shall become secured by this Mortgage. The
Mortgagor shall repay on demand all sums so advanced in its behalf with interest at the rate of
eightenn (18%) percent per annum in excess of the rate of the Note at the time of such advance.
Nothing herein contained shall prevent any such failure to perform on the part of Mortgagor from
constituting an event of default as defined below.
1.14 Financial Statements. The Mortgagor shall deliver to Mortgagee, within ninety(90)
days after the end of each of Mortgagor's fiscal years, a balance sheet and statement of profit and
loss with respect to the operation of the Property for the fiscal year just completed and beginning
with the second such fiscal year after the recordation of the Loan Documents, a comparison of the
just completed fiscal year with the preceding fiscal year's balance sheet and statement of profit
and loss, all in reasonable detail and certified as complete and correct, by the Mortgagor and a
Certified Public Accountant.
1.15 Time. The Mortgagor agrees that time is of the essence hereof in connection with
all obligations of the Mortgagor herein or in said Note or any other instruments constituting
additional security for said Note.
1.16 Estoppel Certificates. The Mortgagor within ten (10) days from receipt of written
request, shall furnish a duly acknowledged written statement setting forth the amount of the debt
secured by this Mortgage, and stating either that no set-offs or defenses exist against the
Mortgage debt, or if any such setoffs or defenses are alleged to exist, the nature thereof_
1.17 Records, The Mortgagor agrees to keep adequate books and records of
in accordance with generally accepted accounting principles and shall permit the Mortgagee, and
11
its agents, accountants and attomeys, to visit and inspect the Property and examine its books and
records of account, and to discuss its affairs, finances and accounts with the Mortgagor, at such
reasonable times as Mortgagee may request.
1.18 Assi nment of Rents and Leases. Mortgagor agrees to execute and deliver to
Mortgagee such assignments of the leases and rents applicable to the Property PP p y a s the Mortgagee
may from time to time request while this Mortgage and the Note and indebtedness secured by this
Mortgage are outstanding.
1.19 Subordination to Prior Encumbrances. Notwithstanding anything herein which is or
which may appear to be to the contrary, the lien of this Mortgage and Mortgagee's rights
hereunder are subordinate and inferior to the lien of those Permitted Encumbrances (if any)
whether now existing or hereafter created which are stated on Exhibit B. Mortgagee agrees, by its
acceptance hereof, that no action required to be taken by Mortgagor under the express terms of
any Prior Encumbrance shall constitute a default or any Event of Default hereunder, provided
however, that such actions are not inconsistent with Mortgagor's obligations set forth in the Note
or in paragraph 1.20(c) below.
1.20 Leases Affecting Mortgaged Property.
a. Mortgagor shall comply with and observe its obligations as landlord under
all leases affecting the Property or any part thereof. Upon request, Mortgagor shall furnish
promptly to Mortgagee executed copies of all such leases now existing or hereafter created.
Mortgagor shall not, without the express written consent of Mortgagee, enter any lease except
upon forms approved by Mortgagee. Mortgagor shall not accept payment of rent more than one
(1) month in advance without prior written consent of Mortgagee. Nothing contained in this
Section 1.20 or elsewhere in this Mortgage shall be construed to make Mortgagee a mortgagee in
possession unless and until Mortgagee actually takes possession of the Mortgaged Property
either in person or through an agent or receiver.
b. To the extent allowable by applicable law, each lease of the Mortgaged
Property, shall be entered into in a form provided by the Mortgagee and shall provide that, in the
event of the enforcement by Mortgagee of the remedies provided for by law or by this Mortgage,
the lessee thereunder will, if requested by Mortgagee or by any person succeeding to the interest
of Mortgagor as the result of said enforcement, automatically become the lessee of Mortgagee or
any such successor in interest, without any change in the terms or other provisions of the
respective lease, provided, however, that Mortgagee or said successor in.interest shall not be
bound by (i) any payment of rent or additional rent for more than one (1) month in advance,
except prepayments in the nature of security for the performance by said lessee of its obligations
under said lease, or (ii) any amendment or modification in the lease made without the consent of
Mortgagee or any successor in interest. Each lease shall also provide that, upon request by said
successor in interest, the lessee shall execute and deliver an instrument or instruments confirming
its attomment.
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G. Mortgagor covenants and agrees that, until the Note and the other
obligations secured hereby are satisfied in full, Mortgagor shall comply with the terms of that
certain Rental Regulatory Agreement (if applicable) executed simultaneously herewith by and
among Mortgagor and the Mortgagee, which Rental Regulatory Agreement is by this reference
made a part hereof to the same extent as if set out in full herein.
1.21 Reserved
1.22 Incorporation of Contract. Mortgagor agrees and covenants to abide by all the
terms and conditions of the CDBG Contract. The CDBG Contract is incorporated herein by
reference as if fully set forth herein. A default of any provision of the CDBG Contract shall be
deemed an Event of Default Under this Mortgage.
ARTICLE TWO
Default
2.01 Events of Default. The following shall be deemed to be Events of Default
hereunder:
a. Failure to make any payment when due in accordance with the terms of the
Note secured by this Mortgage or failure to make any additional payments required by this
Mortgage within fifteen days (15 )of the date on which such payments were due.
b. Failure to keep or perform any of the other terms, covenants and conditions
in this Mortgage provided that such failure shall have continued for a period of thirty (30) days
after written notice of such failure from the Mortgagee.
C. After written notice from Mortgagee and an opportunity to cure of thirty(30)
days from such written notice, continued breach of any warranties or representations given by
Mortgagor to Mortgagee in connection with the Loan Documents.
d. An event of default under or institution of foreclosure or other proceedings
to enforce any Permitted Encumbrance or any other mortgage or security interest, lien or
encumbrance of any kind upon the Property or any portion thereof.
e. The Mortgagor, or any successor or assign including, without limitation the
9 ,
current owners of any interest in the Property shall:
W file a petition under the Federal Bankruptcy Code or any similar law,
state or federal, whether now or hereafter existing (hereafter referred to as a "Bankruptcy
Proceeding"); or
(ii) file any answer admitting insolvency or inability to pay debts, or
13
(iii) fail to obtain a vacation or stay of any Insolvency Bankruptcy
Proceeding within forty-five (45)days, as hereinafter provided; or
(iv) be the subject of an order for relief against it in any Bankruptcy
Proceeding; or
(v) have a custodian or a trustee or receiver appointed for or have any
court take jurisdiction of its property, or the major part thereof, in any involuntary proceeding for
the purpose of reorganization, arrangement, dissolution, or liquidation if such receiver or trustee
shall not be discharged or if such jurisdiction relinquished, vacated or stayed on appeal or
otherwise within forty-five (45)days; or
(vi) make an assignment for the benefit of its creditors; or
(vii) admit in writing its inability to pay its debts generally as they
become due; or
(viii) consent to an appointment of custodian or receiver or trustee of
all of its property, or the major part thereof.
f. Failure without ood
g cause of the Mortgagor to accept any referral from
Miami-Dade County of eligible applicants for housing if space is available at the time of the
referral.
g. Failure of the Mortgagor to comply with the requirements of the DHCD
Contract.
h. After the applicable grace periods have expired, failure to comply with the
terms of the Loan Agreement between the Mortgagor, as Borrower, and Miami-Dade County as
Lender; the Rental Regulatory Agreement (if applicable) between the Owner and Miami-Dade
County, the Note, and any other instruments, now or hereafter executed by Owner in favor of
Miami-Dade County,which in any manner constitute additional security for the Note.
i. The event of any default on any other Contract, Note or Mortgage between
Mortgagor and Mortgagee.
j. The institution of any proceeding for foreclosure on any property where the
County is also Mortgagee.
2.02 Remedies.
a. Upon and after any such Event of Default, the Mortgagee, by written notice
14
i
given to the Mortgagor, may declare the entire principal of the Note then outstanding (if not then
due and payable), and all accrued and unpaid interest thereon, all premium payable thereunder,
and all other obligations of Mortgagor hereunder, to be due and payable immediately, and upon
any such declaration the principal of the (Vote and said accrued and unpaid interest shall become
and be immediately due and payable, anything in the Note or in this Mortgage to the contrary
notwithstanding.
b. Upon and after any such Event of Default, the Mortgagee or by its agents
or attorneys, may enter into and upon all or any part of the Property, and each and every part
thereof, and may exclude the Mortgagor, its agents and servants wholly therefrom; and having
and holding the same, may use, operate, manage and control the Property and conduct the
business thereof, either personally or by its superintendents, managers, agents, servants,
attorneys or receivers and upon every such entry, the Mortgagee, at the expense of the Property,
from time to time, either by purchase, repairs or construction, may maintain and restore the
Property, whereof it shall become possessed as aforesaid, and, from time to time, at the expense
of the Property, the Mortgagee may make all necessary or proper repairs, renewals and
replacements and such useful alterations, additions, betterments and improvements thereto and
thereon as to it may seem advisable, and in every such case the Mortgagee shall have the right to
manage and operate the Property and to carry on the business thereof and exercise all rights and
powers of the Mortgagor with respect thereto either in the name of the Mortgagor or otherwise as
it shall deem best, and the Mortgagee shall be entitled to collect and receive all earnings,
revenues, rents, issues, profits and income of the Property and every part thereof, all of which
shall for all purposes constitute property of the Mortgagor; and after deducting the expenses of
conducting the business thereof and of all maintenance, repairs, renewals, replacements,
alterations, additions, betterments and improvements and amounts necessary to pay for taxes,
assessments, insurance and prior or other proper charges upon the Property or any part thereof,
as well as just and reasonable compensation for the services of the Mortgagee its attorneys,
counsel, agents, clerks, servants and other employees by it properly and reasonably engaged and
employed, the Mortgagee shall apply the moneys arising as aforesaid, first, to the payment of the
principal of the Note and the interest thereon, when and as the same shall become payable, and
second, to the payment of any other sums required to be paid by the Mortgagor under this
Mortgage.
C. Upon and after any such Event of Default, the Mortgagee shall have all of
the remedies of a Secured Party under the Uniform Commercial Code of Florida, Sec. 671-689 et
al. F.S., as amended from time to time, including without limitation the right and power to sell, or
otherwise dispose of the Collateral or any part thereof, and for that purpose may take immediate
and exclusive possession of the Collateral, or any part thereof, and with or without judicial
process, enter upon any Property on which the Collateral, or any part thereof, may be situated
and remove the same therefrom without being deemed guilty of trespass and without liability for
damages thereby occasioned, or at Mortgagee's option Mortgagor shall assemble the Collateral
and make it available to the Mortgagee at the place and at the time designated in the demand.
Mortgagee shall be entitled to hold, maintain, preserve and prepare the Collateral for sale.
Mortgagee without removal may render the Collateral unusable and dispose of the Collateral on
15
the Property. l'o the extent permitted by law, Mortgagor expressly waives any notice of sale or
other disposition of the Collateral and any other right or remedy of Mortgagee existing after default
hereunder, and to the extent any such notice is required and cannot be waived, Mortgagor agrees
that, as it relates to, this paragraph c. only, if such notice is marked, postage prepaid, to the
Mortgagor at the above address with copies of said notice mailed in the same fashion to the
president of the Mortgagor, at least fifteen (15) days before the time of the sale or disposition,
such notice shall be deemed reasonable and shall fully satisfy any requirement for giving of said
notice.
d. Upon and after any such Event of Default, the Mortgagee, with or without
entry, or by its agents or attorneys, insofar as applicable, may:
(i) sell the Property to the extent permitted and pursuant to the
procedures provided by law, and all estate, right, title and interest, claim and demand therein, and
right of redemption thereof, at one or more sales as an entity or in parcels, and at such time and
place upon such terms and after such terms and after such notice thereof as may be required, or
(ii) institute proceedings for the complete or partial foreclosure of this
Mortgage, or
(iii) apply to any court of competent jurisdiction for the appointment of a
receiver or receivers for the Property and of all the earnings, revenues, rents, issues, profits and
income thereof, or
(iv) take such steps to protect and enforce its rights whether by action,
suit or proceeding in equity or at law for the specific performance of any covenant, condition or
agreement in the Note, or in this Mortgage, or in aid of the execution of any power herein granted,
or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as the Mortgagee shall elect.
e. The Mortgagee may adjourn from time to time any sale by it to be made
under or by virtue of this Mortgage by announcement at the time and place appointed for such
sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable
provision of law, the Mortgagee, without further notice or publication, other than that provided in
sub-paragraph 2.02(c)above may make such sale at the time and place to which the same shall
be so adjourned.
f. Upon the completion of any sale or sales made by the Mortgagee under or
by virtue of this Section, the Mortgagor, or an officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or
good and sufficient instruments, conveying, assigning and transferring, all estate, right, title and
interest in and to the property and rights sold. The Mortgagee is hereby appointed the true and
lawful attorney irrevocable of the Mortgagor, in its name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the Property and rights so sold, and for
16
that purpose the Mortgagee may execute all necessary instruments of conveyance, assignment
and transfer, and may substitute one or more persons with like power, the Mortgagor hereby
ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do
by virtue hereof. This power of attorney shall be deemed to be a power coupled with an interest
and not subject to revocation. Nevertheless, the Mortgagor, if so requested by the Mortgagee,
shall ratify and confirm any such sale or sales by executing and delivering to the Mortgagee or to
such purchaser or purchasers all such instruments as may be advisable, in the judgment of the
Mortgagee, for the purpose, and as may be designated in such request. Any such sale or sales
made under or by virtue of this Section whether made under the power of sale herein granted or
under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall
operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law
or in equity, of the Mortgagor in and to the properties and rights so sold, and shall be a perpetual
bar both at law and in equity against the Mortgagor and against any and all persons claiming or
who may claim the same, or any part thereof from, through or under the Mortgagor.
g. In the event of any sale made under or by virtue of this Section (whether
made under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale), the entire principal of, and interest on, the Note, if
not previously due and payable, and all other sums required to be paid by the Mortgagor pursuant
to this Mortgage, immediately thereupon shall, anything in the Note or in this Mortgage to the
contrary notwithstanding, become due and payable.
h. The purchase money proceeds or avails of any sale made under or by
virtue of this Section, together with any other sums which then may be held by the Mortgagee
under the provisions of this Section or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale, including
reasonable compensation to the Mortgagee, its agents and counsel, and of any judicial
proceedings wherein the same may be made, and of all expenses, liabilities and advances made
or incurred by the Mortgagee under this Mortgage, together with interest at the rate for advances
hereunder in Section 1. 13.
Second: To the payment of any other sums required to be paid by the
Mortgagor pursuant to any provisions of this Mortgage or of the Note.
Third: To the payment of the whole amount then due, owing or unpaid
upon the Note for principal and interest, with interest on the unpaid principal and accrued interest
at the rate specified in the Note, from and after the happening of any Event of Default described
above from the due date of any such payment of principal until the same is paid.
Fourth: To the payment of the surplus, if any, to the Mortgagor or
whomsoever is lawfully entitled to receive the same, subject to federal law which may prohibit
such payment. In the event that payment of surplus to Mortgagor is prohibited by federal law or a
determination by U.S_ HUD, Mortgagee shall follow the direction of U.S. HUD and shall use the
17
surplus as required by U.S. HUD and federal law.
Subject to federal law and U.S. HUD, upon any sale made under or by
virtue of this Section, whether made under the power of sale herein granted or under or by virtue
of judicial proceedings or of a judgment or decree of foreclosure and sale, the Mortgagee may bid
for and acquire the Property or any part thereof and in lieu of paying cash therefor may make
settlement for the purchase price by crediting upon the indebtedness of the Mortgagor secured by
this Mortgage the net sales price after deducting therefrom the expenses of the sale and the cost
of the action and any other sums which the Mortgagee is authorized to deduct under this
Mortgage. The Mortgagee, upon so acquiring the Property, or any part thereof shall be entitled to
hold, lease, rent, operate, manage and sell the same in any manner provided by applicable laws.
18
ARTICLE THREE
Miscellaneous Terms and Conditions
3.01 Leases. In the event the Mortgagee shall institute judicial proceedings to foreclose
the lien hereof, and shall be appointed as a mortgagee in possession of the Property, the
Mortgagee during such time as it shall be the Mortgagee in possession of the Property pursuant
to an order or decree entered in such judicial proceedings, shall have, and the Mortgagor hereby
gives and grants to the Mortgagee, the right, power and authority to make and enter into leases of
the Property or the portions thereof for such rents and for such periods of occupancy and upon
such conditions and provisions as mortgagee in possession may deem desirable, and Mortgagor
expressly acknowledges and agrees that the term of any such lease may extend beyond the date
of any sale of the Property pursuant to a decree rendered in such judicial proceedings; it being the
intention of the Mortgagor that while the Mortgagee is a Mortgagee in possession of the Property
pursuant to an order or decree entered in such judicial proceedings, such Mortgagee shall be
deemed to be and shall be the attorney-in-fact of the Mortgagor for the purpose of making and
entering into leases of parts or portions of the Property for the rents and upon the terms,
conditions and provisions deemed desirable to such Mortgagee and with like effect as if such
leases had been made by the Mortgagor as the owner in fee simple of the Property free and clear
of any conditions or limitations established by this Mortgage. The power and authority hereby
given and granted by the Mortgagor to Mortgagee shall be deemed to be coupled with an interest
and shall not be revocable by Mortgagor. Nothing herein shall be construed to affect the
Mortgagee's rigts under Section 2.02(b)above.
3.02 Taxation of Note and Mortgage. If at any time before the debt hereby secured is
fully paid, any law be enacted, deducting from the value of said real estate, for the purposes of
taxation, any lien thereon, or revising or changing in any way the laws now in force for the taxation
of mortgages or bonds, or the debts secured thereby, for state or local purposes, or the manner of
collection of such taxes, so as to affect adversely this Mortgage or the debt hereby secured, or the
owner and holder thereof in respect thereto, then this Mortgage and the Note hereby secured
shall, at the option of Mortgagee and without notice to any party, become immediately due and
payable. If any law should be enacted and to the extent permitted by such law, Mortgagor shall
have the opportunity of paying to the Mortgagee the amount of an
PP Y P Y g additional cost or taxes to the
Y
Mortgage from such law.
3.03 Marshallinq of Assets. Mortgagor on its own behalf and on behalf of its successors
and assigns hereby expressly waives all rights to require a marshalling of assets by Mortgagee or
to require Mortgagee, upon a foreclosure, to first resort to the sale of any portion of the Property
which might have been retained by Mortgagor before foreclosing upon and selling any other
portion as may be conveyed by Mortgagor subject to this Mortgage.
3.04 Partial Release. Without affecting the liability of any other person for the payment
of an indebtedness herein mentioned (including Mortgagor should it convey said Property) and
without affecting the priority of the lien hereof upon any property not released, Mortgagee may,
19
F
without notice, release any person so liable, extend the maturity or modify the terms of any such
obligation, or grant other indulgences, release or reconvey or cause to be released or reconveyed
at any time all or any part of the Property described herein, or take or release any other security or
make compositions or other arrangements with debtors. Mortgagee may also accept additional
security, either concurrently herewith or hereafter, and sell the same or otherwise realized thereon
either before, concurrently with, or after sale hereunder,
3.05 Non-Waiver.
a. By accepting payment of any sum secured hereby after its due date or
altered performance of any obligation secured hereby, Mortgagee shall not waive its right against
any person obligated directly or indirectly hereunder or with respect to any indebtedness hereby
secured, either to require prompt payment when due of all other sums so secured or take remedy
for failure to make such prompt payment or full performance. No exercise of any right or remedy
by Mortgagee hereunder shall constitute a waiver of any other right or remedy herein contained or
provided by law.
b. No delay or omission of the Mortgagee in the exercise of any right, power
or remedy accruing hereunder or arising otherwise shall impair any such right, power or remedy,
or be construed to be a waiver of any default or acquiescence therein.
C. Receipt of rents, awards, and any other monies or evidences thereof,
pursuant to the provisions of this Mortgage and any disposition of the same by Mortgagee shall
not constitute a waiver of the right of foreclosure by Mortgagee in the event of default or failure of
performance by Mortgagor of any covenant or agreement contained herein or in any note secured
hereby.
3.06 Protection of Security. Should Mortgagor fail to make any payment or to perform
any covenant as herein provided, Mortgagee (but without obligation so to do and without notice to
or demand upon Mortgagor and without releasing Mortgagor from any obligation hereof) may
make or do the same in the manner and to such extent as Mortgagee may deem reasonably
necessary to protect the security hereof, Mortgagee being authorized to enter upon the Property
for such purposes, commence, appear in and defend any action or proceeding purporting to affect
the security hereof or the rights or powers of Mortgagee; pay, purchase, contest, or compromise
any encumbrance, charge or lien which in the judgment of Mortgagee is prior or superior hereto;
and, in exercising any such power, incur any liability and expend whatever amounts in its absolute
discretion it may deem necessary therefor, including cost of evidence of title and reasonable
counsel fee. Any expenditures in connection herewith shall constitute an advance hereunder.
3.07 Rules of Construction. When the identity of the parties hereto or other
circumstances make it appropriate, the masculine gender shall include the feminine and/or neuter,
plural and the singular number shall include the plural. The headings of each paragraph are for
information and convenience only and do not limit or construe the contents of any provision hereof
20
3.08 Severabilit . If any term of this Mortgage, or the application thereof to any person
or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this
Mortgage, or the application of such term to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each term of this Mortgage
shall be valid and enforceable to the fullest extent permitted by law.
3.09 Successors in Interest. This Mortgage applies to, inures to the benefit of, and is
binding not only on the parties hereto, but on their heirs, executors, administrators, successors
and assigns. All obligations of Mortgagor hereunder are joint and several. The term "Mortgagee"
shall mean the holder and owner, including pledges, of the Note secured hereby, whether or not
named as Mortgagee herein.
3.10 Notices. All notices to be given pursuant to this Mortgage shall be sufficient if
mailed postage prepaid, certified or registered mail, return receipt requested, to the above
described addresses of the parties hereto, or to such other address as a party may request in
writing. All notices to Mortgagor shall be sent to the attention of the Executive Director. All
notices to the Mortgagee shall be sent to the attention of the County Manager. Any time period
provided in the giving of any notice shall commence upon the date such notice is deposited in the
mail.
3.11 Modifications. This Mortgage may not be amended, modified or changed, nor shall
any waiver of any provision be effective, except only by an instrument in writing and signed by the
party against whom enforcement of any waiver, amendment, change, modification or discharge is
sought.
3.12 Governing Law. This Mortgage shall be construed according to and governed by
the laws of the State of Florida, provided,. however, that nothing herein shall limit or impair any
right which Holder has under applicable federal laws of the United States of America to charge a
rate of interest on the sums evidenced hereby at a rate which exceeds the maximum rate allowed
under the laws of Florida.
ARTICLE FOUR
Lending Provisions
4.01 Breach of Loan Agreement and Other Documents. Notwithstanding anything to the
contrary contained in this Mortgage, in the Note, or in any other instrument securing the loan
evidenced by the Note, Mortgagee may at its option declare the entire indebtedness secured
hereby, and all interest thereon and all advances made by Mortgagee hereunder, immediately due
and payable and/or exercise all additional rights accruing to it under this Mortgage upon an Event
of Default, or in the event of a breach by Mortgagor of any covenant contained in this Mortgage
following expiration of all notice and cure periods set forth therein.
4.02 Future Advances. This Mortgage is given to secure not only existing
21
indebtedness, but also such future advances, whether such advances are obligatory or are to be
made at the option of the Mortgagee, or otherwise, as are made within twenty years from the date
hereof, to the same extent as if such future advances were made on the date of the execution of
this Mortgage. The total amount of indebtedness that may be so secured may decrease or
increase from time to time, but the total unpaid balance so secured at one time shall not exceed
four times the face amount of the Note, plus interest thereon, and any disbursements made for
the payment of taxes, levies or insurance on the Property with interest on such disbursements at
the rate designated in the Note to apply following a default thereunder. Mortgagor hereby agrees
that it shall not execute or file for record any notice limiting the maximum principal amount that
may be so secured, and that no such notice shall be of any force and effect whatsoever unless
Mortgagee shall have consented thereto in writing signed by Mortgagee and recorded in the
public records of Miami-Dade County, Florida.
4.03 Rights under Prior Encumbrances.
a. Mortgagor hereby covenants and agrees (i) to promptly observe and
perform all of the covenants and conditions contained in any Permitted Encumbrance or any other
lien upon the Property, and which are required to be observed or performed by Mortgagor and to
do all things necessary to preserve and keep unimpaired its rights thereunder (ii) to promptly
notify Mortgagee in writing of any default by the Mortgagor in the performance and the
observance of any of the terms, covenants or conditions on part of Mortgagor to be performed or
observed under such instrument or of the occurrence of any event which, regardless of the lapse
of time, would constitute a default under such instrument and promptly to cause a copy of each
such notice given by the Mortgagee thereunder to the Mortgagor to be delivered to Mortgagee.
b. In the event Mortgagor falls to make any payment required under such a
Permitted Encumbrance or any other lien upon the Property or to do any act set forth in the
preceding subparagraph herein provided, then Mortgagee may, but without obligation, and without
notice to or demand upon Mortgagor, and without releasing Mortgagor from any obligation hereof,
make or do the same in such manner and to such extent as Mortgagee may deem necessary to
protect its interest under this Mortgage. Mortgagee's rights hereunder shall specifically include,
but without limitation thereof, the right to pay any and all payments of interest and principal,
insurance premiums, taxes and assessments and other sums due or to become due thereunder.
C. In the event Mortgagor fails to perform any of the terms, covenants and
conditions required to be performed or observed by Mortgagor under such a Permitted
Encumbrance or any other lien upon the Property, then Mortgagee may, but without obligation,
and without notice or demand upon Mortgagor and without relieving Mortgagor from any obligation
hereof, take any action Mortgagee deems necessary or desirable to prevent or cure any such
default by Mortgagor. Upon receipt by Mortgagee from Mortgagor of any written notice of default
by Mortgagor under such instrument, Mortgagee may rely thereon and take any action it deems
necessary to cure such default event though the existence of such default or the nature thereof
may be questioned or denied by the Mortgagor or by any party on behalf of the Mortgagor.
Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the
22
absolute and immediate right to enter upon the Property or any part thereof to such extent and as
often as the Mortgagee in its sole discretion deems necessary or desirable in order to prevent or
cure any such default by the Mortgagor. Mortgagee may pay and expend such sums of money as
Mortgagee in its sole discretion deems necessary for any such purpose and may pay expenses,
employ counsel and pay reasonable attorney's fees. All costs, charges and expenses so incurred
or paid by Mortgagee shall become due and payable immediately, whether or not there by notice,
demand, attempt to collect or suit pending. The amount so incurred or paid by Mortgagee,
together with interest thereon at the rate of interest set forth in the Note to accrue following default
thereunder, from the date incurred until paid by Mortgagor, shall be added to the indebtedness
secured by the lien of this Mortgage to the same extent as if paid or expended on the date hereof.
d. Mortgagor agrees that it will not surrender any of its rights under such a
Permitted Encumbrance or other lien upon the Property, and will not, without the prior written
consent of Mortgagee, consent to any modification, change or any alteration or amendment of
such instrument of the obligations secured thereby, either orally or in writing, and no release or
forbearance of any of Mortgagor's obligations under such instrument whether pursuant to such
instrument or otherwise, shall release Mortgagor from any of its obligations under this Mortgage.
e. Any default by Mortgagor or any event of default under a Permitted
Encumbrance or other lien upon the Property, to which this Mortgage may be subject shall
constitute an Event of Default under this Mortgage.
4.04 Limitation of Interest. All agreements between Mortgagor and Mortgagee are
expressly limited so that in no contingency or event whatsoever, whether by reason of
advancement of the principal amount of the Note, acceleration of maturity of the unpaid principal
amount of the Note, acceleration of maturity of the unpaid principal balance thereof, or otherwise,
or advancement of any sums under the provisions of this Mortgage, shall the amount paid or
agreed to be paid to the holder of the Note for the use, forbearance or detention of the money to
be advanced thereunder or hereunder exceed the highest lawful rate permissible. If, from any
circumstances whatsoever, fulfillment of any provisions of this Mortgage or the Note or any other
agreement referred to herein, at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable thereto or hereto, then ipso facto, the obligations to be fulfilled shall be reduced
to the limit of such validity, and if from any circumstances the holder of the Note or Mortgage shall
ever receive as interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the unpaid principal balance
due hereunder and not the payment of interest. These provisions shall control every other
provision of all agreements between Mortgagor and Mortgagee.
4.05 Waiver of Jury Trial: MORTGAGOR WAIVES iTS RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, WHETHER ARISING iN CONTRACT OR TORT, BY STATUTE OR
OTHERWISE, iN ANY WAY RELATED TO THE TERMS OF THIS MORTGAGE. THIS
PROVISION iS A MATERIAL INDUCEMENT FOR THE MORTGAGEE'S EXTENDING CREDIT
TO MORTGAGOR AND NO WAIVER OF LIMITATION OF THE MORTGAGEE'S RIGHTS
23
UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY
SIGNED ON THE LENDER'S BEHALF.
IN WITNESS WHEREOF, the said Mortgagor caused this instrument to be signed and
sealed as of the date first above written.
Witnesses: Mortgagor:
MBCDC: The London, LLC, Inc., a Florida
for-profit corporation
A
/FJJ
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Print Name G�� '•°� ���1, ,�?(��:
Title: R �
(SEAL)
STATE OF FLORIDA }
} SS.
COUNTY OF MIAMI-DADE)
HEREBY CERTIFY that on this day, before me, a Notary Public duly authorized in the
State and County named above to take acknowledgments, personally appeared
2> 7`a s` as P,e ar Ie of
CO a Florida 6 ( ) who is
personally known to me or ,who presented /j 14 , as identification, to me known
to be a representative of the person described as the Mortgagor in and who executed the
foregoing Mortgage and Security Agreement and Assignment of Leases, Rents and Profits, and
acknowledged before me that said person executed that Mortgage and Security Agreement and
Assignment of Leases, Rents and Profits and who ( )did ( )did not take an oath.
WITNESSETH my hand and official seal in the State and County above, this 31 day of
Q•2e-H 20L/.
NOTARY PUBLIC, State of Florida
My Commission Expires:
�; to Nofwy PubNC-S tv uF Fib
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EWM A48YS.2012`�
,'��i oc Fti o�`,,, C�11BI�SafOf1 w DD 757746
NON
�"' Am. 24
EXHIBIT A
LEGAL DESCRIPTION
FOLIO NUMBER:
i
25
#7 BK 25591 PG 1015
4123/2007 1:.1 CAROM: Fax Attorney at Law TO: 1 718 833 073_ rP G: 003 OF�0
EXHIBIT"A'
LEGAL DESCRIPTION
That portion of Lot 1,Block H of Resubdivision of Blocks G,K,J and K and Triangular Tract lying South of Block
K and West of Block G, together with Cardinal Street(now vacated), according to the Amended Map of Ocean
Front Property,of the Miami Beach Improvement Company(said map being recorded in Plat Book 5 on Page 7 and
8 of the Public Records of Dade County,Florida)according to the Plat thereof,recorded in Plat Book 6,Page 102 of
the Public Records of Dade County, Florida, more particularly described as follows, to wit: Commence afthe
Northeast corner of Lot 1,Block H of a resubdivision of Blocks G, H, J, K and Triangular Tract lying South of
Block K and West of Block G, together with Cardinal Street(now vacated)according to the Amended Map of
Ocean Front Property of Miami Beach Improvement Company(recorded in Plat Book 5 on Pages 7 aha 8�6_f the
Public Records of Dade County,Florida)according to the Plat thereof:,recorded in Plat Book 6,Page 102 of the
Public Records of Dade County,Florida;thence Northwesterly along the Northerly boundary line of said Lot 1,for a
distance of 120 feet to an iron pipe;thence Southwesterly parallel to the Easterly boundary line of said Lot 1 for a
distance of 61.19 feet to an iron pipe which iron pipe is located 64 feet Northerly from the Southerly boundary line
of said Lot 1,measured along the prolongation Southwesterly of the last preceding course and said iron pipe is the
point of beginning of the parcel of land herein described;thence continue Southwesterly parallel with the Easterly
boundary line of said Lot 1 for a distance of 44 feet to an iron pipe located 20 feet Northerly from the Southerly line
of said Lot l measured along the prolongation Southwesterly of the last preceding course; thence Northwesterly
along a line 20 feet Northeasterly from and parallel to the Southerly boundary line of said Lot 1 for a distance of
93.78 feet to an iron pipe located on the Westerly boundary line of said Lot 1.•at a distance of 21.53 feet Northerly
from the Southwesterly corner of said Lot 1, measured along the Westerly T oundary line of said Lot 1; thence
Northerly along the Westerly boundary line of said Lot 1 for a distance of 47.79 feet to an iron pipe; thence
Southeasterly parallel with the Northerly boundary line of said Lot 1 and 61.19 feet Southwesterly therefrom,
measured at right angles thereto for a distance of 111.61 feet to the Point of Beginning of the parcel of land herein
described.
AND
That portion of Lot 1,Block H, of a Resubdivision of Blocks G,I-L J and K and Triangular Tract tying South of
Block K and West of Block.G, together with Cardinal Street(now vacated) according to the Amended Map of
Ocean Front Property of the Miami Beach Improvement Company(said map being recorded in Plat Book 5,Pages 7
End 8 of the Public Records of Dade County,Florida).according to the Plat thereof,recorded in Plat Book 6,Page
102,of the Public Records of Dade County,Florida,more particularly described as follows,to wit:
Commence at the Northeasterly comer of Lot 1,Block H of a Resubdivision of Blocks Q.11,J,K and Triangular
Tract lying South of Block K and West of Block G,together with Cardinal Street(now vacated)according to the
Amended Map of Ocean From Property of the Miami Beach Improvement Company(recorded in Plat Book 5,
Pages 7 and 8 of the Public Records of Dade County,Florida),according to the Plat thereof,recorded in Plat Book
6,Page 102,of the Public Records of Dade County,Florida;thence Northwesterly along the Northerly boundary
line of said Lot 1 for a distance of 120 feet to an iron pipe marking the Point of Beginning of the parcel of land
herein described;thence Southwesterly parallel to the Easterly boundary line of said Lot 1 for a distance of 61.19
feet to a point which is 64 feet Northerly from the Southerly boundary line of said Lot 1 measured along the
prolongation Southwesterly of the last preceding course; thence Northwesterly parallel with the Northerly
boundary of said Lot 1 for a distance of 111.64 feet to an iron pipe located on the Westerly boundary line of said
Lot I tt a distance of 69.32 feet Northerly from the Southwesterly corner of said Lot 1, measured along the
Westerly boundary line of said-Lot 1; thence Northerly along the Westerly boundary line of said Lot I for a
distance of 43.76 feet to the beginning of a tangential circular curve; thence Northerly and Easterly along the
Northwesterly boundary line of said Lot 1 and along a tangential circular curve having a radius of 15 feet through
a central angle of I 1 I degrees 56 minutes 30 seconds for an arc distance of 29.31 feet to the end of said curve;
thence Southeasterly along the Northerly boundary line of said Lot 1 for a distance c 114.09 feet to the point of
Beginning of the parcel of land herein described.
G�.�v
EXHIBIT B
PERMITTED ENCUMBRANCES
26