MBCDC: The London House Release Agreement RELEASE AGREEMENT
i
THIS RELEASE AGREEMENT ("Release Agreement") is made and entered into as of
the day of March, 2014 ("Effective Date"), by and between MBCDC: THE LONDON
LLC, a Florida limited liability company ("Seller") and the CITY OF MIAMI BEACH, Florida,
a municipal corporation organized and existing under the laws of the State of Florida("City").
WITNESSETH:
WHEREAS, contemporaneously with the execution hereof, Seller has transferred to the
City certain real properties located at 1965 and 1975 Washington Avenue, Miami Beach, Miami-
Dade County, Florida, known as the London House apartments and more particularly described
on Exhibit "A" attached hereto (the "Property") pursuant to that certain Real Estate Sales
Contract, dated March 6, 2014, between Seller and the City(the "Contract");
WHEREAS, Seller and/or its manager and sole member, Miami Beach Community
Development Corporation, Inc., a Florida not for profit corporation ("MBCDC"), have
previously received and/or been awarded public funding pursuant to the following grant and/or
funding agreements (collectively, the "Funding Agreements") entered into for the purpose of
purchasing and developing the Property as an affordable multi-family residential housing project
(the "Project"): (i) FY 2009 Community Development Block Grant with Miami-Dade County
(the "MDC Block Grant"); (ii) the Neighborhood Stabilization Program with the City (the
"NSP3"); (iii) FY 2012-13 Community Development Block Grant with the City of Miami Beach
(the"City Block Grant"); (iv)FY 2013 Surtax Funding Agreement with Miami-Dade County for
the total sum of $800,000.00 (awarded but, as of the Effective Date, not closed) (the "MDC
Surtax Agreement"); and (v) that certain Loan Agreement, dated April 30, 2007, and
Declaration of Restrictive Covenants ("Declaration"), dated April 30, 2007, and recorded in OR
Book 25591, Pages 1016-1021, of the Public Records of Miami-Dade County, Florida
(collectively, the Loan Agreement and the Declaration are referred to herein as the "RDA
Acquisition Grant"); and
WHEREAS, the parties desire to enter into this Release Agreement to provide mutual
releases in connection with the NSP3, a copy of which is attached and incorporated hereto as
Exhibit "B", the City Block Grant, a copy of which is attached and incorporated hereto as
Exhibit "C", and the RDA Acquisition Grant, a copy of which is attached and incorporated
hereto as Composite Exhibit"D" as set forth below.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereby covenant and agree as follows:
1. The City and Seller for themselves, and for their respective officers, directors,
employees, managers, members, owners, shareholders, representatives, affiliates and agents
hereby remise, release, acquit and forever discharge each other from and against any and all
claims, demands (including demands for repayment of the NSP3, the City Block Grant and the
RDA Acquisition Grant), damages, debts, liabilities, obligations, contracts, agreements, causes
{28298849;1)
of action, suits and costs, of whatever nature, character or description, including, without
limitation, reasonable attorneys' fees, whether known or unknown, which the parties may have
or claim to have against each other in connection with, arising from, or in any manner relating to
the NSP3, the City Block Grant and/or the RDA Acquisition Grant, respectively.
2. The City acknowledges and agrees that it has accepted title to the Property subject
to any and all existing encumbrances, notes, mortgages, loan agreements, and other loan
documents relating to the RDA Acquisition Grant.
3. This Release Agreement shall inure to the benefit of and be binding upon Seller
and the City and their respective legal representatives, successors and assigns. No modification
of this Release Agreement shall be valid unless in writing and signed by both parties.
4. Any suit, action or proceeding seeking to enforce any provision of or based on
any matter arising out of or in connection with this Release Agreement shall be settled according
to Florida law and venue for any action in connection with this Release Agreement shall be in
Miami-Dade County, Florida. This Release Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, without regard to principles of conflict of laws.
The exclusive venue for any litigation arising out of this Release Agreement shall be Miami
Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida,
if in federal court. BY ENTERING INTO THIS RELEASE AGREEMENT, SELLER AND
THE CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL
BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS
RELEASE AGREEMENT.
5. Should any part, clause, provision, or condition of this Release Agreement be held
to be void, invalid, or inoperative, the parties agree that such invalidity shall not affect any other
part, clause, provision, or condition thereof, and that the remainder of this Release Agreement
shall be effective as though such void part, clause, provision, or condition had not been contained
herein.
6. In the event of any litigation arising from this Release Agreement the prevailing
party shall be entitled to recover attorney's fees and costs incurred therewith.
7. This Release Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but one and the same
instrument which may be sufficiently evidenced by one such counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
{28298849;1}
IN WITNESS WHEREOF, the duly authorized representatives of Seller and the City
have caused this Release Agreement to be properly executed under seal as of this day and year
first above written.
MBCDC: THE LONDON LLC, a Florida
limited liability company
By: Miami Beach Community Development
Corporation, Inc., its manager and sole member
Attest:
By: _
o_ Johnso Den's . Russ
Chairman of the Board Assistant Secretary
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
On = 5 , 2014 before me, the undersigned Notary Public, in and for the State
aforesaid, personally appeared Jack Johnson, as Chairman of Miami Beach Community
Development Corporation, Inc., a Florida not for profit corporation, and Denis A. Russ, as
Assistant Secretary of Miami Beach Community Development Corporation, Inc., a Florida
corporation, the manager and sole member of MBCDC: The London LLC, a Florida limited
liability company, in the capacity aforestated. They are personall known to me or have
produced a valid Florida driver's license as identification.
Notary Public
My Commission Expires
[Notary Public Seal]
WMAKANSMTMUS
* MY COMMISSION#EE 150933
EXPIRES:April 6,2016
OF���� Babad T1uu Budget bbrmy Services
{28298849;1}
THE CITY OF MIAMI BEACH Yh1 L
INCORP+ ORATED
By: �., by � �.
Ji Morals e Granado
Cit anager 21 10 < y Clerk
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
VY)a
On Mftm* $ , 2014 before me, the undersigned Notary Public, in and for the State
aforesaid, personally appeared Jimmy L. Morales, as the City Manager for the City of Miami
Beach, Florida, and Rafael Granado, as the City Clerk of the City of Miami Beach, Florida, in
the capacity aforestated. They are personally known to me or have produced a valid Florida
driver's license as identification.
ISABEL SATCNELL
,V1 Pµv PL, Public
r w ; Notary Public-State of Florida FI 2017
» My Comm.Expires Apr 13, My Commission Expires > v �-
' Commission#�EE 876384
OF Bonded Through National Notary Assn.
[Notary Public Seal]
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
(---�
{28298849;1} ity AttorTre y ate
i
i
EXHIBIT A
Legal Description
That portion of Lot 1, Block H of Resubdivision of Blocks G, H, 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 at the 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 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; 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 1 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 boundary 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, or a Resubdivision of Blocks G, H, 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, 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, more particularly described as follows, to wit:
Commence at the Northeasterly 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 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
{28298849;1}
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 Western boundary line of said Lot 1 at 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 1 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 111 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 of 114.09 feet to the point of Beginning of the parcel of
land herein described.
{28298849;1}
i
EXHIBIT B
NSP3
1
NEIGHBORHOOD STABILIZATION PROGRAM 3 GRANT AGREEMENT =
BETWEEN THE CITY OF MIAMI BEACH AND
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
This Agreement made and entered into this I day of ice- , 2012
(Effective Date), by and between the CITY OF MIAMI BEACH, a Florida municipal corporation having
its principal office at 1700 Convention Center Drive, Miami Beach, Florida, 33139, (hereinafter referred
to as "City"), and MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a not-for profit
corporation having its principal office at 945 Pennsylvania Avenue, Miami Beach, Florida, 33139
(hereinafter referred to as"Sub-recipient").
WHEREAS, on September 8, 2010 the U.S. Department of Housing and Urban Development
(HUD) announced funding provided under the Dodd-Frank Wall Street Reform and Consumer
Protection Act, creating the Neighborhood Stabilization Program 3(NSP3); and
WHEREAS, on December 29, 2010, a copy of the Substantial Amendment was posted on
the Office of Real Estate, Housing and Community Development website in accordance with HUD
requirements and, on December 30, 2010, a notice of public hearing was published in The Miami
Herald; and
WHEREAS, on February 9, 2011, the City Commission adopted Resolution No. 2011-27601,
approving a Substantial Amendment to the City's FY2008-2012 Consolidated Plan and FY2010-2011
Action Plan to allocate $1,327,579 to the City's subrecipient, Miami Beach Community Development
Corporation (MBCDC), for rehabilitation of Phase 1 of The London House Apartments, located at 1965
Washington Avenue(the Project); and
NOW, THEREFORE, in consideration of the mutual benefits contained herein, the City and
Sub-recipient agree as follows:
Section 1. Agreement Documents: Agreement documents shall consist of this Agreement and
the following four (4) attachments, all of which are attached and incorporated in this
Agreement:
• Attachment I—Phase 1 Project Narrative,which contains a description of the Project.
• Attachment II—Line Item Budget Dated January 7, 2011.
i
• Attachment III--HUD Funding Approval and Grant Agreement, dated March 8,2011
• Attachment IV—Applicable Federal Regulations.
Section 2. Statement of Work: Sub-recipient agrees to implement the Project in accordance with
Attachments I and II, and as summarized as follows:
The London House Apartments located at 1965 Washington Avenue, Miami Beach,
FL 33139(also referred to as the"Property").
Phase 1 Rehabilitation of six(6)multi-family units
Section 3. Agreement Amount: Subject to the availability of funds, the City agrees to make
available ONE MILLION, THREE HUNDRED TWENTY-SEVEN THOUSAND, FIVE
HUNDRED SEVENTY-NINE DOLLARS ($1,327,579) for use by the Sub-recipient
during the Term of the Agreement (hereinafter, the aforestated amount including,
without limitation, any additional amounts included thereto as a result of a subsequent
amendment(s)to the Agreement, shall be referred to as the"Funds").
a Section 4. Alterations: Any proposed changes in the Project including, without limitation, the
Budget in Attachment II, shall first be submitted, reviewed, and approved, in writing, by
the City Manager, which approval, if given at all, shall be at his/her sole reasonable
judgment and discretion.
1
i
I
i
:- J
i
Section 6. Method of Payment and Reporting Requirements: MBCDC may request a
drawdown of a portion of the Funds for the expected cash needs within the first three
(3)months of the Term(as defined herein), in accordance with the projections itemized
in Attachment 1-B. Any advance payment is subject to Federal OMB Circulars A-87,A-
10, A-22, and the Cash Management Improvement Act of 1990. During the Term, Sub-
recipient shall-submit quarterly Project progress reports to the City on the 10`h day of
January, April, July, and October, respectively. Reporting forms to be used In
fulfillment of this requirement shall be provided by the Program Monitor. Sub-recipient
shall also submit a Project close-out report (Final Report), thirty (30) days after
completion of the Project ("completion" being herein defined as the issuance of a final
Certificate of Use (CO) or Certificate of Occupancy (CC), covering the agreed-upon
Project goals and objectives; expenditures during the term; and performance data on
client feedback.
Other reporting requirements may be required by the City Manager in the event of
Project changes; the need for additional information or documentation arises; and/or
legislative amendments are enacted.
Reports and/or requested documentation not received by the due date shall be
considered delinquent and may be cause for default and termination of this Agreement,
pursuant to Section 12 hereof.
Section 6. Monitoring: At its discretion, the City may schedule at least one (1) annual on-site
monitoring visit with the Sub-recipient to evaluate the progress of the Project, and/or to
provide technical assistance. At the City's option, a desk top review of the activities
may be conducted in lieu of an on-site visit.
Section 7. Additional Conditions and Compensation: The parties acknowledge that the Funds
originate from NSP3 grant funds from HUD, and must be implemented in full
compliance with all of HUD's rules and regulations. In the event of curtailment or non-
production of said federal funds, the financial sources necessary to continue to pay the
Sub-recipient all or any portions of the Funds will not be available. In that event, the
City may terminate this Agreement, which termination shall be effective as of the date
that it is determined by the City Manager, in his/her sole discretion and judgment, that
the Funds are no longer available. In the event of such termination, the Sub-recipient
agrees that It will not look to, nor seek to hold the City, nor any individual member of
the City Commission and/or City Administration, personally liable for the performance
of this Agreement, and the City shall be released from any further liability to Sub-
recipient under the terms of this Agreement.
Section 8. Compliance with Local, State and Federal Regulations -The Sub-recipient agrees
to comply with all applicable Federal regulations as they may apply to Project
administration and to carry out each activity In compliance with the laws and
regulations as described in 24 CFR 570 Subpart K, as same may be amended from
time to time. Additionally, the Sub-recipient will comply with all State and local (City
and County) laws and ordinances hereto applicable. It shall be the Sub-recipient's sole
and absolute responsibility to continually familiarize itself with any and all such
applicable Federal, State, County, and City regulations, laws, and/or ordinances.
Section 9. Restrictions for Certain Resident Aliens - Certain newly legalized aliens, as
described in 24 CFR Part 49, are not eligible to apply for benefits under covered
activities funded by the NSP3 Program. "Benefits" under this section means financial
{ assistance, public services, jobs, and access to new or rehabilitated housing and other
facilities made available under activities funded by the NSP3 Program. "Benefits" do
not include relocation services and payments to which displacees are entitled by law.
2
I
1 ,
Section 10. Assignment/Subcontract: No part of this Agreement may be assigned or
subcontracted without the prior written consent of the City, which consent, if given at
all, shall be at the City's sole discretion and judgement.
Section 11. Term: This Agreement shall commence following execution by all parties, as
referenced in the date on page 1 of the Agreement (the Effective Date), and shall
terminate on March 8, 2014, (the Term), with the understanding that the end of the
Term shall also be the end of the expenditure deadline, as mandated by the Funds
Agreement between HUD and the City, dated March 8, 2011, Attachment III; and that
no funds will be available thereafter. The Sub-recipient shall expend 50%of the Funds
prior to March 8, 2013, and the remaining balance prior to the end of the Term. Any
costs incurred by the Sub-recipient prior to the Effective Date which were not approved
by the City, will not be reimbursed by the City.
Section 12. Termination of Agreement:
12.1 Termination for Convenience: This Agreement may be terminated by the City,
for convenience and without cause, through the City Manager, upon 30 days prior
written notice to Sub-recipient. In the event of such termination for convenience,
the City shall cease any payments to Sub-recipient for costs resulting from
obligations which were not approved before the effective date of termination.
Sub-recipient shall be solely responsible for immediately returning any unused or
unapproved Funds as of the date of termination, and shall also be solely
responsible for submitting a final report, as provided in Section 5 hereof, (detailing
all Project objectives, activities and expenditures up to the effective date of
termination). Said final report shall be due within five (5) working days following
the effective date of termination. Upon timely receipt of Subrecipient's final report,
the City, at its sole discretion, shall determine the amount(if any)of any additional
portion of the Funds to be returned to the City as a result of any unapproved or
unused Funds, or Incomplete Project items, and shall provide Sub-recipient with
written notice of any monies due. Said additional monies shall be due and
payable immediately upon receipt of such notice by Sub-recipient.
Notwithstanding the preceding, the City reserves any and all legal rights and
remedies it may have with regard to recapture of all or any portion of the Funds,
or any assets acquired or improved in whole or in part with said Funds.
12.2 Termination for Cause: Notwithstanding Subsection 12.1 above, the City may
also terminate this Agreement for cause. "Cause" shall include, but not be limited
to, the following:
a. Failure to comply andlor perform, in accordance with the terms of this
Agreement, or any Federal, State, County or City law, or regulation.
b. Submitting reports to the City which are late, incorrect, or incomplete in any
material respect.
C. Implementation of this Agreement, for any reason, is rendered impossible or
infeasible.
d. Failure to respond in writing to any concerns raised by the City, including
substantiating documents when required/requested by the City.
e. Any evidence of fraud, mismanagement, and/or waste, as determined by the
City's monitoring and applicable HUD rules and regulations.
The City shall notify the Sub-recipient in writing when the Sub-recipient has been
placed in default, Such notification shall include: (i) actions taken by or to be taken
by the City, such as withholding of payments; (ii) actions to be taken by the Sub-
recipient as a condition precedent to curing the default; and (iii) a reasonable cure
period, which shall be no less than thirty (30) days from notification date. In the
3
event the Sub-recipient fails to cure such default within the aforestated cure period,
this Agreement shall be considered terminated for cause, without requiring further
notice to Sub-recipient, and Sub-recipient shall be solely responsible for repayment
to the City of all or any portion of the Funds disbursed to Sub-recipient, as deemed
required by the City, in its sole and reasonable discretion. Said monies shall be
immediately due and payable by Sub-recipient. Notwithstanding the preceding, the
City reserves any and all legal rights and remedies it may have with regard to
recapture of all or any portion of the Funds, or any assets acquired or improved in
whole or in part with said Funds.
12.3 Termination for Lack of Funds: In the event of curtailment of, or regulatory
constraints placed on the Funds by HUD, this Agreement will terminate, effective
as of the time that it is determined by the City Manager that such Funds are no
longer available. Costs of the Sub-recipient incurred after termination are not
allowable unless expressly authorized in writing by the City Manager (whether in
the notice of termination or subsequent thereto), and, in that case, may only be
allowable if, in the sole discretion of the City Manager:
a. The costs resulted from obligations which were properly incurred before the
effective date of termination, were not in anticipation of it, and are
noncancelable;and
b. The costs would be allowable if the Agreement expired normally at the end
of its Term.
Section 13. Equal Employment Opportunities: The Sub-recipient shall comply with equal
employment opportunities as stated in Executive Order 11246, entitled "Equal
Employment Opportunity" as amended Executive Order 11375, and as supplemented in
Department of Labor regulations.
Section 14. Program Income: The Sub-recipient, or any City approved successor in interest thereto,
including without limitation, a limited liability company who has taken title to the Property,
shall submit yearly Independent audits regarding Program Income (as such term is
defined under applicable Federal regulations) to the City. The cost of the yearly
independent audits shall be paid by the entity from its operating expenses. Any remaining
Program Income shall be returned to the City and utilized for NSP3 activities.
Section 15. Religious Organization or Owned Property: NSP3 funds may be used by religious
organizations or on property owned by religious organizations only with prior written
approval from the City Manager, and only in accordance with requirements set in 24 CFR
§570.2000). The Sub-recipient shall comply with First Amendment Church/State
principles, as follows:
a. it will not discriminate against any employee or applicant for employment on the basis
of religion and will not limit employment or give preference in employment to persons
on the basis of religion.
b. It will not discriminate against any person applying for public services on the basis of
religion and will not limit such services or give preference to persons on the basis of
religion.
c. It will retain its independence from Federal, State, and local governments, and may
continue to carry out its mission, including the definition, practice, and expression of
its religious beliefs, provided that it does not use direct NSP3 funds to support any
inherently religious activities, such as worship, religious instruction, or proselytizing.
d. The Funds shall not be used for the acquisition, construction, or rehabilitation of
structures to the extent that those structures are.used for Inherently religious activities.
Where a structure Is used for both eligible and inherently religious activities, NSP3
funds may not exceed the cost of those portions of the acquisition, construction, or
rehabilitation that are attributable to eligible activities in accordance with the cost
4
1
accounting requirements applicable to NSP3 funds in this part. Sanctuaries, chapels,
or other rooms that a NSP3-funded religious congregation uses as its principal place
of worship, however, are ineligible for NSP3-funded improvements.
Section 16. Reversion of Assets: In the event of a termination of this Agreement, or upon expiration
of the Agreement, and in addition to any and all other remedies available to the City
(whether under this Agreement, or at law or in equity), the Sub-recipient shall immediately
transfer to the City any Funds on hand at the time of termination (or expiration) and any
accounts receivable attributable to the use of Funds. The City's receipt of any Funds on
hand at the time of termination, shall not waive the City's right(nor excuse Sub-recipient's
obligation)to recoup all or any portion of the Funds, as the City may deem necessary.
Any real property under the Sub-recipient's control that was acquired or improved in whole
or In part with NSP3 funds(including NSP3 funds provided to the Sub-recipient in the form
of a loan)in excess of$25,000 must either:
a. Be used to meet one of the national objectives in 24 CFR 570.208 (formerly
section 570.901) until five years after expiration of the term of this Agreement, or
for such longer period of time as determined to be appropriate by the City and as
memorialized by the City and Sub-recipient in an amendment to this Agreement or
such instrument as the City, at its discretion, determines appropriate; or
b. If not used in accordance with the above subsection (a), the Sub-recipient shall
pay to the City an amount equal to the current market value of the property less
any portion of the value attributable to expenditures of non-NSP3 funds for the
acquisition of, or improvement to, the property, No payment shall be required
after the compliance with the affordability requirement for the period of time
specified in subsection (a).
Section 17. Conformity to HUD regulations: The Sub-recipient agrees to abide by guidelines set
forth by HUD for the administration and implementation of the NSP3 Program, including
applicable Uniform Administrative Requirements set forth in 24 CFR 570.502, and
applicable federal laws and regulations in 24 CFR 570.600, et seq. In this regard, the
Sub-recipient agrees that duly authorized representatives of HUD shall have access to
any books, documents, papers and records of the Sub-recipient that are directly pertinent
to this Agreement for the purpose of making audits, examinations, excerpts and
transcriptions. The Sub-recipient shall comply wlth the requirements and standards of
OMB Circular No. A-122, "Cost Principles for Non-profit Organizations", or OMB Circular
No. A-21, "Cost Principles for Educational Institutions" as applicable. The Sub-recipient
shall comply with the following provisions of the Uniform Administrative requirements of
OMB Circular A-110 (implemented at 24 CFR Part 84, "Uniform Administrative
Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals,
and Other Non-Profit Organizations") or the related NSP3 provision, as specified in this
section:
a. Subpart A-"General";
b. Subpart B - "Pre-Award Requirements", except for 084.12, "Forms for Applying
for Federal Assistance";
C. Subpart C-"Post-Award Requirements", except for:
(1) Section 84.22, "Payment Requirements"-Grantees shall follow the standards
of o❑ 85.20(b)(7)and 85.21 in making payments to sub-recipients;
(2) Section 84.23, "Cost Sharing and Matching";
5
I
i
(3) Section 84.24, "Program Income" - In lieu of ❑ 84.24, NSP3 sub-recipients
shall follow❑ 570.504;
(4) Section 84.25, "Revision of Budget and Program Plans";
(5) Section 84.32, "Real Property" - In lieu of ❑84.32, NSP3 sub-recipients shall
follow 0 570.505;
(6) Section 84.34(g), "Equipment" - In lieu of the disposition provisions of ❑
84.34(8),the following applies:
a. In all cases in which equipment is sold, the proceeds shall be program
income (pro-rated to reflect the extent to which NSP3 funds were used to
acquire the equipment);and
b. Equipment not needed by the sub-recipient for NSP3 activities shall be
transferred to the recipient for the NSP3 program or shall be retained after
compensating the recipient;
(7) Section 84.51(b), (c), (d), (e), (f), (g), and (h), "Monitoring and Reporting
Program Performance";
(8) Section 84.52, "Financial Reporting";
(9) Section 84.53(b), "Retention and access requirements for records". Section
84.53(b)applies with the following exceptions:
a. The retention period referenced in ❑ 84.53(b) pertaining to individual
NSP3 activities shall be four years; and
b. The retention period starts from the date of submission of the annual
performance and evaluation report, as prescribed in 24 CFR 91.520, in
which the specific activity is reported on for the final time rather than from
the date of submission of the final expenditure report for the award;
(10) Section 84.61,"Termination"-In lieu of the provisions of n 84.61, NSP3
subrecipients shall comply with ❑ 570.503(b)(7); and
d. Subpart D - "After-the-Award Requirements" - except for ❑ 84.71, "Closeout
Procedures".
Section 18. Sponsorships: The Sub-recipient agrees that all notices, informational pamphlets, press
releases, advertisements, descriptions of the sponsorship of the Program, research
reports, and similar public notices prepared and released by the Sub-recipient for, on
behalf of, and/or about the Project, shall include the statement;
"FUNDED BY THE CITY OF MIAMI BEACH NEIGHBORHOOD
STABILIZATION PROGRAM 3"
In written materials, the words
"CITY OF MIAMI BEACH NEIGHBORHOOD STABILIZATION PROGRAM 3
FUNDS ADMINISTERED BY THE CITY OF MIAMI BEACH OFFICE OF
REAL ESTATE HOUSING AND COMMUNITY DEVELOPMENT
DEPARTMENT"
shall appear in the same size letters or type as the name of the Sub-recipient.
6
:i
I
Section 19. Examination of Records: The Sub-recipient shall maintain sufficient records in
accordance with 24 CFR 570.502 and 570.506 to determine compliance with the
requirements of this Agreement, the NSP3 Program, and all other applicable laws and
regulations. This documentation shall include, but not be limited to,the following:
a. Books, records and documents in accordance with generally accepted accounting
principles, procedures and practices, which sufficiently and properly reflect all
revenues and expenditures of funds provided directly or indirectly by this
Agreement, including matching funds and Program Income. These records shall
be maintained to the extent of such detail as will properly reflect all net costs,
direct and indirect labor, materials, equipment, supplies and services, and other
costs and expenses of whatever nature for which reimbursement is claimed under
the provisions of this Agreement.
b. Time sheets for split-funded employees, which work on more than one activity, in
order to record the NSP3 activity delivery cost by Project and the non-NSP3
related charges.
C. How the Statutory National Objective(s) as defined in 24 CFR 570.208 and the
eligibility requirement(s) under which funding has been received, have been met.
These also include special requirements such as necessary and appropriate
determinations as defined In 24 CFR 570.209, income certifications, and written
Agreements with beneficiaries,where applicable.
The Sub-recipient is responsible for maintaining and storing all records pertinent to this
Agreement in an orderly fashion in a readily accessible, permanent and secured location
of this Agreement, with the following
for a period of four (4) years after expiration g g
exception: if any litigation, claim or audit is started before the expiration date of the four(4)
year period, the records will be maintained until all litigation, claims or audit findings
involving these records are resolved. The City shall be informed In writing after closeout of
this Agreement, of the address where the records are to be kept.
Section 20. Audits and Inspections: At any time during normal business hours, and as often as the
City (and/or its representatives) may deem necessary, the Sub-recipient shall make
available all records, documentation, and any other data relating to all matters covered by
the Agreement, for review, inspection or audit.
Audits shall be conducted annually and shall be submitted to the City 180 days after the
end of the Sub-recipient's fiscal year. The Sub-recipient shall comply with the
requirements and standards of OMB A-133, "Audits of Institutions of High Education and
Other Non-Profit Institutions" (as set forth in 24 CFR Part 45), or OMB Circular A-128,
"Audits of State and Local Governments" (as set forth in 24 CFR Part 44), as applicable.
If this Agreement is closed-out prior to the receipt of an audit report, the City reserves the
right to recover any disallowed costs identified in an audit after such closeout.
Section 21. Indemnification/insurance Requirements:uirements• T he Sub-recipient t shall indemnify
and hold
harmless the City, its officers, employees and agents, from any and all claims, liability,
losses and causes of action which may arise out of an act, omission, negligence or
misconduct on the part of the Sub-recipient, or any of its agents, officers, servants,
employees, contractors, patrons, guests, clients, licensees, invitees, or any persons acting
under the direction, control, or supervision of Sub-recipient, pursuant to this Agreement
and/or the Project. The Sub-recipient shall pay all claims and losses of any nature
whatsoever in connection therewith and shall defend all suits In the name of the City, and
shall pay all costs (including attorney's fees) and judgements which may issue thereon.
This Indemnification shall survive the termination and/or expiration of this Agreement.
The Sub-recipient shall not commence any work and/or services pursuant to this
Agreement until all insurance required under this Section has been obtained and the City's
i
i
Risk Manager has approved such insurance. In the event evidence of such insurance is
not forwarded to the City's Risk Manager within thirty (30) days after the commencement
date of the Term, this Agreement shall automatically terminate and become null and void,
and the City shall have no obligation under the terms and conditions hereof.
The Sub-recipient shall maintain and carry in full force during the Term of this Agreement,
and/or throughout the duration of the Project contemplated herein, whichever is longer,
the following insurance:
a. General Liability Policy with coverage for Bodily Injury and Property Damage, in
the amount of $1,000,000 single limit, subject to adjustment for inflation. The
policy must include coverage for contractual liability to cover the above
indemnification.
b. Worker's Compensation and Employers Liability, as required pursuant to Florida
Statutes.
C. Automobile and vehicle coverage shall be required when the use of automobiles
and other vehicles are involved in any way in the performance of the Agreement.
Limits for such coverage shall be in the amount of $500,000, subject to
adjustment for inflation.
The City of Miami Beach shall be named as an additional insured under all such insurance
contracts. Thirty- (30) day written notice of cancellation or substantial modification of the
insurance coverage must be given to the City's Risk Manager by the Sub-recipient and its
insurance company. The Insurance must be furnished by insurance companies
authorized to do business in the State of Florida, and approved by the City's Risk
" +"
r le n B s to management, and not
Manager. The companies must be aced no less than a
less than "Class VI" as to strength by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the
approval of the City's Risk Manager. Original Certificates of Insurance for the above
coverage must be submitted to the City's Risk Manager for approval prior to any work
commencing. These certificates will be kept on file in the Office of the Risk Manager,
Third Floor City Hall.
The City shall have the right to obtain from the Sub-recipient specimen copies of the
insurance policies, in the event that submitted Certificates of Insurance are inadequate to
ascertain compliance with required coverage. Compliance with the foregoing
requirements shall not relieve the Sub-recipient of its obligation to indemnify and hold the
City harmless, as required in this section.
Section 22. Conflict of Interest: The Sub-recipient covenants that no person under its employ who
presently exercises any functions or responsibilities in connection with community
development funded activities has any personal financial interests, direct or indirect, in this
Agreement. The Sub-recipient covenants that in the performance of this Agreement, no
person having such conflicting interest shall be employed. The Sub-recipient covenants
that it will comply with all provisions of 24 CFR 570.611 "Conflict of Interest", and the,
State, County and City of Miami Beach statutes, regulations, ordinances or resolutions
governing conflicts of interest. The Sub-recipient shall disclose, in writing, to the City any
possible conflicting interest or apparent impropriety that is covered by the above
provisions. This disclosure shall occur immediately upon knowledge of such possible
conflict. The City will then render an opinion, which shall be binding on both parties.
Section 23. Venue: This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida, both substantive and remedial, without regard to principles of
conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall
be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern
District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY
._ 8
AND SUB-RECIPIENT EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE
TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,
THIS AGREEMENT.
Section 24. Notices: All notices required under this Agreement shall be sent to the parties at the
following address:
City: Anna Parekh, Director
Office of Real Estate, Housing and Community Development
City of Miami Beach
1700 Convention Center Drive, Miami Beach, FL 33139
Sub-recipient: Roberto Datorre, President
Miami Beach Community Development Corporation
945 Pennsylvania Avenue :
Miami Beach, FL 33139
Section 25, Limitation of Liability: The City desires to enter into this Agreement only if In so doing
the City can place a limit on City's liability for any cause of action for money damages due
to an alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of $10,000. Sub-recipient hereby expresses its willingness to
enter into this Agreement with Sub-recipient's recovery from the City. for any damage
action for breach of contract to be limited to a maximum amount of$10,000.
Accordingly, Sub-recipient hereby agrees that the City shall not be liable to Sub-recipient
for damages in an amount in excess of $10,000, for any action or claim for breach of
contract arising out of the performance or nonperformance of any obligations imposed
upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in
this Agreement is in any way intended to be a waiver of the limitation placed upon City's
liability as set forth in Florida Statutes, Section 768.28.
Section 26. Developer. Fee: Per'HUD Guidance on Developers, Sub-recipients, and Contractors,
dated August 27, 2010, (Attachment V) sub--recipients many not earn a developer's fee.
The Sub-recipient was not publicly procured therefore Sub-recipient is not classified as a
Developer and may not collect any NSP3 funds for Developer fees.
Section 27. Retainage; The City shall retain 10% from all draws paid pursuant to payment
reimbursement requests from Sub-recipient.
Section 28. Cancelled Check Documentation: Sub-recipient shall submit copies of cancelled checks
with all payment reimbursement requests, as a condition to, and prior to receiving
payment from the City.
Section 29. This Agreement shall be binding upon all parties hereto and their respective heirs,
executors, administrators,successors and assigns.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officials on the day and date first above indicated.
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
a Florida not-for-profit corporation
ATTEST:
S cretary Signature
Roberto Datorre, President
Print Name Print Name and Title
CITY OF MIAMI BEACH
a Florida Municipal corporation
ATTEST:
s
V
Rafael E. Gr nado n` �J — Mayor
City Clerk ........... �
'5,
FARHCDI$ALLIHSG-CDWLLIN 3111 dt4g@ n t-k I 2.doc
N
APPROVED AS TO
FORM&LANGUAGE .
&FOR ECUTION
L�I1�
me Date
10
EXHIBIT C
CITY BECK GRANT
COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
This Agreement made and entered into this,/ day of o���2012, by and between the CITY
OF MIAMI BEACH, a Florida municipal corporation having its principal office at 1700 Convention
Center Drive, Miami Beach, Florida, 33139, (hereinafter referred to as "City"), and MIAMI BEACH
COMMUNITY DEVELOPMENT CORPORATION, a not-for profit corporation having its principal office
at 945 Pennsylvania Avenue, Miami Beach, Florida, 33939(hereinafter referred to as"Provider").
WHEREAS, the City is an entitlement recipient of U.S. Department of Housing and Urban
Development(HUD)grant programs, Community Development Block Grant(CDBG) funds, and HOME
Investment funds (HOME), and the City expects to continue to receive entitlement funds from these
grant programs to operate the City's housing and community development activities; and
WHEREAS, each year, the City prepares a One-Year Action Plan detailing how it intends to
allocate funds received from HUD to conduct eligible activities for the benefit of low and moderate-
income Miami Beach residents; and
WHEREAS, on May 18, 2012, the City's Community Development Advisory Committee
(CDAC) approved the funding recommendation of the One-Year Action Plan for Fiscal Year (FY)
2012/2013 activities; and
WHEREAS, in accordance with HUD regulations and the City's Citizen Participation Plan
concerning the preparation of the One-Year Action Plan, the Administration held two (2) public
meetings, receiving citizens'comments, and advertised a 30-day citizen comment period, from June 18,
2012,through July 17, 2012; and
i
WHEREAS, on July 18, 2012, the City Commission approved Resolution No. 2012-27955
approving the One-Year Action Plan for Federal Funds for FY 2012%2013, and providing CDBG funds,
in the amount of$158,338 to Miami Beach Community Development Corporation for the Rehabilitation
of the London House II Apartments Project, located at 1975 Washington, Miami Beach, Florida, 33139.
NOW, THEREFORE, in consideration of the mutual benefits contained herein, the City and
Provider agree as follows:
Section 1. Agreement Documents: Agreement documents shall consist of this Agreement and
the following four (4) attachments, all of which are attached and incorporated in this
Agreement:
• Attachment I-.Statement of Work and contains a description of the Program.
S Attachment II -Budget Summary.
• Attachment.111 -Financials for CDBG-funded activities.
• Attachment IV-Applicable Federal Regulations.
Section 2. Statement of Work: The Provider agrees to implement the Program in accordance !
with Attachments I and II, and as summarized as follows:
Rehabilitation of the London House II Apartments
Rehbabilitation of 18 mutifamily rental units located at 1975 Washinton Avenue for
income-eligible persons.
Section 3. Agreement Amount: The City agrees to make available ONE HUNDRED FIFTY
EIGHT THOUSAND AND THREE HUNDRED THIRTY EIGHT DOLLARS ($158,338)
for use by the Provider during the Term of the Agreement(hereinafter, the aforestated
amount including,without limitation, any additional amounts included thereto as a result
of a subsequent amendment(s)to the Agreement, shall be referred to as the"Funds").
l
i
thereto as a result of a subsequent amendment(s)to the Agreement, shall be referred
to as the"Funds").
Section 4. Alterations: Any proposed changes in the Program including, without limitation, the
Budget in Attachment II, shall first be submitted, reviewed, and approved, in writing, by
the City Manager, which approval, if given at all, shall be at his/her sole reasonable
judgment and discretion.
Section 5. Method of Payment and Reporting Requirements: During the Term, Provider shall
submit quarterly Program progress reports to the City on the I&day of January, April,
July and October, respectively. As part of the report submitted in October, the Provider
also agrees to include, a comprehensive final report covering the agreed-upon Program
objectives, activities, and expenditures, and including, but not limited to, performance
data on client feedback with respect to the goals and objectives outlined in Attachment
I. Attachment III contains reporting forms to be used in fulfillment of this requirement.
Other reporting requirements may be required by the City Manager in the event of
Program changes; the need for additional information or documentation arises; and/or
legislative amendments are enacted. Reports and/or requested documentation not
received by the due date shall be considered delinquent and may be cause for default
and termination of this Agreement, pursuant to Section 12 hereof.
Section 6. Monitoring: At its discretion, the City may schedule at least one (1) annual on-site
monitoring visit with the Provider to evaluate the progress of the Program, and/or to
provide technical assistance. At the City's option, a desk top review of the activities
may be conducted in lieu of an on-site visit.
Section 7. Additional Conditions and Compensation: The parties acknowledge that the Funds
originate from CDBG grant funds from HUD, and must be implemented in full
compliance with all of HUD's rules and regulations. In the event of curtailment or non-
production of said federal funds, the financial sources necessary to continue to pay the
Provider all or any portions of the Funds will not be available. In that event, the City
may terminate this Agreement,which termination shall be effective as of the date that it
Is determined by the City Manager, in his/her sole discretion and judgment, that the
Funds are no longer available. In the event of such termination, the Provider agrees
that it will not look to, nor seek to hold the City, nor.any individual member of the City
Commission and/or City Administration, personally liable for the performance of this
Agreement, and the City shall be released from any further liability to Provider under
the terms of this Agreement.
Section 8. Compliance with Local, State and Federal Regulations - The Provider agrees to
comply with all applicable Federal regulations as they may apply to Program
administration and to carry out each activity in compliance with the laws and
regulations as described in 24 CFR 570 Subpart IC, as same may be amended from
time to time. Additionally, the Provider will comply with all State and local (City and
County) laws and ordinances hereto applicable. It shall be the Provider's sole and r
absolute responsibility to continually familiarize itself with any and all such applicable
Federal,State, County, and City regulations,laws, and/or ordinances.
Section 9. Restrictions for Certain Resident Aliens - Certain newly legalized aliens, as
described in 24 CFR Part 49, are not eligible to apply for benefits under covered
activities funded by the CDBG Program. "Benefits" under this section means financial
assistance, public services,jobs, and access to new or rehabilitated housing and other
facilities made available under activities funded by the CDBG Program. "Benefits"do
not include relocation services and payments to which displacees are entitled by law.
2
i
Section 10. Assignment/Subcontract: No part of this Agreement may be assigned or
subcontracted without the prior written consent of the City, which consent, if given at
all, shall be at the City's sole discretion and judgement.
Section 11. Term: This Agreement shall commence on October 1, 2012, and terminate on
September 30, 2014, (the Term), with the understanding that at, the end of the Term,
the City Commission has the authority to reappropriate any remaining unused Funds.
Section 12. Termination of Agreement:
12.1 Termination for Convenience: This Agreement may be terminated by the City,
for convenience and without cause,through the City Manager, upon 30 days prior
written notice to Provider. In the event of such termination for convenience, the
City shall cease any payments to Provider for costs resulting from obligations
which were not approved before the effective date of termination. Provider shall
be solely responsible for immediately returning any unused or unapproved Funds
as of the date of termination, and shall also be solely responsible for submitting a
final report, as provided in Section 5 hereof, (detailing all Program objectives,
activities and expenditures up to the effective date of the termination). Said final
report shall be due within five (5) working days following the effective date of
termination. Upon timely receipt of Provider's final report, the City, at its sole
discretion, shall determine the amount (if any) of any additional portion of the
Funds to be returned to the City as a result of any unapproved or unused Funds,
or incomplete Program items,and shall provide Provider with written notice of any
monies due. Said additional monies shall be due and payable immediately upon
receipt of such notice by Provider. Notwithstanding the preceding, the City
reserves any and all legal rights and remedies it may have with regard to
recapture of all or any portion of the Funds,or any assets acquired or improved in
whole or in part with said Funds.
12.2 Termination for Cause: Notwithstanding Subsection 12.1 above, the City may
also terminate this Agreement for cause. "Cause"shall include, but not be limited
to,the following:
a. Failure to comply and/or perform., in. accordance with the terms of this
Agreement,or any Federal,State,County or City law,or regulation.
b. Submitting reports to the City which are late, incorrect, or incomplete in any
material respect.
C. Implementation of this Agreement,for any reason, is rendered impossible or
infeasible.
d. Failure to respond in writing to any concerns raised by the City, including
substantiating documents when required/requested by the City.
e. Any evidence of fraud, mismanagement, and/or waste,as determined by the
City's monitoring and applicable HUD rules and regulations.
The City shall notify the Provider in writing when the Provider has been placed in
default. Such notification shall include:(i)actions taken by or to be taken by the City,
such as withholding of payments; (ii) actions to be taken by the Provider as a
condition precedent to curing the default; and (iii) a reasonable cure period, which
shall be no less than thirty(30)days from notification date. In the event the Provider
fails to cure such default within the aforestated cure period, this Agreement shall be
considered terminated for cause, without requiring further notice to Provider, and
Provider shall be solely responsible for repayment to the City of all or any portion of
the Funds disbursed to Provider. as deemed required by the City, in its sole and
reasonable discretion. Said monies shall be immediately due and payable by
Provider. Notwithstanding the preceding, the City reserves any and all legal rights
3
and remedies it may have with regard to recapture of all or any portion of the Funds,
or any assets acquired or improved in whole or in part with said Funds.
12.3 Termination for Lack of Funds: In the event of curtailment of, or regulatory
constraints placed on the Funds by HUD, this Agreement will terminate, effective
as of the time that it is determined by the City Manager that such Funds are no
longer available. Costs of the Provider incurred after termination are not
allowable unless expressly authorized in writing by the City Manager(whether in
the notice of termination or subsequent thereto), and, in that case, may only be
allowable if,in the sole discretion of the City Manager:
a. The costs resulted from obligations which were properly incurred before the
effective date of termination, were not in anticipation of it, and are
i noncancelable;and
b. The costs would be allowable if the Agreement expired normally at the end
of its Term.
Section 13. Equal Employment Opportunities: The Provider shall comply with equal employment
opportunities as stated in Executive Order 11246, entitled "Equal Employment
Opportunity'as amended Executive Order 11375, and as supplemented in Department of
Labor regulations.
Section 14. Program Income: Any "Program Income" (as such term is defined under applicable
Federal regulations)gained from any activity of the Provider funded by CDBG funds shall
be reported to the City and utilized by the Provider in the operation of the Program.
Section 15. Religious Organization or Owned Property: CDBG funds may be used by religious
organizations or on property owned by religious organizations only with prior written
approval from the City Manager, and only in accordance with requirements set in 24 CFR
§570.2000). The Provider shall comply with First Amendment Church/State principles, as
follows:
a. It will not discriminate against any employee or applicant for employment on the basis
of religion and will not limit employment or give preference in employment to persons
on the basis of religion.
b. It will not discriminate against any person applying for public services on the basis of
religion and will not limit such services or give preference to persons on the basis of
religion.
c. It will retain its independence from Federal, State, and local governments, and may
continue to carry out its mission, including the definition, practice, and expression of
its religious beliefs,.provided that it does not use direct CDBG funds to support any
inherently religious activities,such as worship, religious instruction,or proselytizing.
d. The Funds shall not be used for the acquisition, construction, or rehabilitation of
structures to the extent that those structures are used for inherently religious activities.
Where a structure is used for both eligible and inherently religious activities, CDBG
funds may not exceed the cost of those portions of the acquisition, construction, or
rehabilitation that are attributable to eligible activities in accordance with the cost
accounting requirements applicable to CDBG funds in.this part. Sanctuaries,chapels,
or other rooms that a CDBG-funded religious congregation uses as its principal place
of worship,however,are ineligible for CDBG-funded improvements.
Section 16. Reversion of Assets: In the event of a termination of this Agreement, or upon expiration
of the Agreement, and in addition to any and all other remedies available to the City
(whether under this Agreement, or at law or in equity), the Provider shall immediately
transfer to the City any Funds on hand at the time of termination (or expiration) and any '
accounts receivable attributable to the use of Funds. The City's receipt of any Funds on
4
hand at the time of termination, shall not waive the City's right (nor excuse Provider's
obligation)to recoup all or any portion of the Funds,as the City may deem necessary.
Any real property under the Provider's control that was acquired or improved in whole or in
part with CDBG funds (including CDBG funds provided to the Provider in the form of a
loan)in excess of$25,000 must either:
a. Be used to meet one of the national objectives in 24 CFR 570.208 (formerly
section 570.901)until five years after expiration of the term of this Agreement, or
for such longer.period of time as determined to be appropriate by the City and as
memorialized by the City and Provider in an amendment to this Agreement or
such instrument as the City,at its discretion,determines appropriate;or
b. If not used in accordance with the above subsection (a), the Provider shall pay to
the City an amount equal to the current market value of the property less any
portion of the value attributable to expenditures of non-CDBG funds for the
acquisition of,or improvement to,the property.
Section 17. Conformity to HUD regulations:The Provider agrees to abide by guidelines set forth by
HUD for the administration and implementation of the CDBG Program, including
applicable Uniform Administrative Requirements set forth in '24 CFR 570.502, and
applicable federal laws and regulations in 24 CFR 570.600, et seq. In this regard, the
Provider agrees that duly authorized representatives of HUD shall have access to any
books,-documents, papers and records of the Provider that are directly pertinent to this
Agreement for the purpose of making audits, examinations, excerpts and transcriptions.
The Provider shall comply with the requirements and standards of OMB Circular No. A-
122, "Cost Principles for Non-profit Organizations", or OMB. Circular No. A-21, "Cost
Principles for Educational Institutions" as applicable. The Provider shall comply with the
following provisions of the Uniform Administrative requirements of OMB Circular AA 10
(implemented at 24 CFR Part 84, Uniform Administrative Requirements for Grants and
Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations")or the related CDBG provision,as specified in this section:
g ) P P
a. Subpart A-"General";
b. Subpart B _ "Pre-Award Requirements", except for E184.12,4.12, Forms for Applying
for Federal Assistance';
C. Subpart C-"Post-Award Requirements",except for:
(1) Section 84.22, "Payment Requirements"-Grantees shall follow the standards
of❑❑ 85.20(b)(7)and 85.21 in making payments to sub-recipients;
(2) Section 84.23, "Cost Sharing and Matching';
(3) Section 84.24, "Program Income" - In lieu of ❑ 84.24, CDBG sub-recipients
shall follow 0 570.504;
(4) Section 84.25, "Revision of Budget and Program Plans";
(5) Section 84.32, "Real Property"- In lieu of ❑84.32, CDBG sub-recipients shall
follow 11570.505;
(6) Section 84.34(g), "Equipment" - In lieu of the disposition provisions of ❑
84.34(g),the following applies:
5
i
a. In all cases in which equipment is sold, the proceeds shall be program
income(pro-rated to reflect the extent to which CDBG funds were used to
acquire the equipment);and
b. Equipment not needed by the sub-recipient for CDBG activities shall be
transferred to the recipient for the CDBG program or shall be retained
after compensating the recipient;
(7) Section 84.51(b), (c), (d), (e), (f), (g), and (h), "Monitoring and Reporting
Program Performance";
(8) Section 84.52,"Financial Reporting";
(9) Section 84.53(b), "Retention and access requirements for records". Section
84.53(b)applies with the following exceptions:
a. The retention period referenced in ❑ 84.53(b) pertaining to individual
CDBG activities shall be four years;and
b. The retention period starts from the date of submission of the annual
performance and evaluation report, as prescribed in 24 CFR 91.520, in
which the specific activity is reported on for the final time rather than from
the date of submission of the final expenditure report for the award;
(10) Section 84.61,"Termination"-In lieu of the provisions of❑84.61, CDBG
subrecipients shall comply with ❑570.503(b)(7); and
d. Subpart D - "After-the-Award Requirements" - except for ❑ 84.71, "Closeout
Procedures".
Section 18. Sponsorships: The Provider agrees that all notices, informational pamphlets, press
releases, advertisements, descriptions of the sponsorship of the Program, research
reports, and similar public notices prepared and released by the Provider for, on behalf of,
and/or about the Program, shall include the statement:
"FUNDED BY THE CITY OF MIAMI BEACH COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM"
In written materials,the words
"CITY OF MIAMI BEACH COMMUNITY DEVELOPMENT BLOCK GRANT
FUNDS ADMINISTERED BY THE CITY OF MIAMI BEACH OFFICE OF
REAL ESTATE HOUSING AND COMMUNITY DEVELOPMENT
DEPARTMENT"
shall appear in the same size letters or type as the name of the Provider.
Section 19. Examination of Records: The Provider shall maintain sufficient records in accordance
with 24 CFR 570.502 and 570.506 to determine compliance with the requirements of this
Agreement, the CDBG Program, and all other applicable laws and regulations. This
documentation shall include,but not be limited to,the following:
a. Books, records and documents in accordance with generally accepted accounting
principles, procedures and practices, which sufficiently and properly reflect all
revenues and expenditures of funds provided directly or indirectly by this
Agreement;including matching funds and Program Income. These records shall
be maintained to the extent of such detail as will properly reflect all net costs,
direct and indirect labor, materials, equipment, supplies and services, and other
6
I
costs and expenses of whatever nature for which reimbursement is claimed under
the provisions of this Agreement.
b. Time sheets for split-funded employees, which work on more than one activity, in
order to record the CDBG activity delivery cost by Program and the non-CDBG
related charges.
C. How the Statutory National Objective(s) as defined in 24 CFR 570.208 and the
eligibility requirement(s) under which funding has been received, have been met.
These also include special requirements such as necessary and appropriate
III
determinations as defined in 24 CFR 570.209, income certifications, and written
Agreements with beneficiaries,where applicable.
The Provider is responsible for maintaining and storing all records pertinent to this
Agreement in an orderly fashion in a readily accessible, permanent and secured location
for a period of four (4) years after expiration of this Agreement, with the following
exception:if any litigation,claim or audit is started before the expiration date of the four(4)
year period, the records will be maintained until all litigation, claims or audit findings
involving these records are resolved.The City shall be informed in writing after closeout of
this Agreement, of the address where the records are to be kept.
Section 20. Audits and Inspections: At any time during normal business hours, and as often as the
City(and/or its representatives) may deem necessary, the Provider shall make available
all records, documentation, and any other data relating to all matters covered by the
Agreement,for review, inspection or audit.
Audits shall be conducted annually and shall be submitted to the City 180 days after the
end of the Provider's fiscal year. The Provider shall comply with the requirements and
standards of OMB A-133, "Audits of Institutions of High Education and Other Non-Profit
Institutions"(as set forth in 24 CFR Part 45),or OMB Circular A-128, "Audits of State and
Local Governments"(as set forth in 24 CFR Part 44), as applicable. If this Agreement is
closed-out prior to the receipt of an audit report,the City reserves the right to recover any
disallowed costs identified in an audit after such closeout.
Section 21. Indemnification/Insurance Requirements: The Provider shall indemnify and hold
harmless the City, its officers, employees and agents, from any and all claims, liability,
losses and causes of action which may.arise out of an act, omission, negligence or
misconduct on the part of the Provider,or any of its agents,officers, servants, employees,
contractors, patrons, guests, clients, licensees, invitees, or any persons acting under the
direction, control, or supervision of Provider, pursuant to this Agreement and/or the
Program. The Provider shall pay all claims and losses of any nature whatsoever in
connection therewith and shall defend all suits in the name of the City, and shall pay all
costs (including attorney's fees) and judgements which may issue thereon. This
Indemnification shall survive the termination and/or expiration of this Agreement.
The Provider shall not commence any work and/or services pursuant to this Agreement
until all insurance required under this Section has been obtained and the City's Risk
Manager has approved such insurance. In the event evidence of such insurance is not
forwarded to the City's Risk Manager within thirty(30)days after the commencement date
of the Term, this Agreement shall automatically terminate and become null and void, and
the City shall have no obligation under the terms and conditions hereof.
The Provider shall maintain and carry in full force during the Term of this Agreement,
and/or throughout the duration of the Program contemplated herein, whichever is longer,
the following insurance:
a. General Liability Policy with coverage for Bodily Injury and Property Damage, in
the amount of $1,000,000 single limit, subject to adjustment for inflation. The
7
i
policy must include coverage for contractual liability to cover the above
indemnification.
b. Worker's Compensation and Employers Liability, as required pursuant to Florida
Statutes.
C. Automobile and vehicle coverage shall be required when the use of automobiles
and other vehicles are involved in any way in the performance of the Agreement.
Limits for such coverage shall be in the amount of $500,000, subject to
adjustment for inflation.
The City of Miami Beach shall be named as an additional insured under all such insurance
contracts. Thirty-(30)day written notice of cancellation or substantial modification of the
insurance coverage must be given to the City's Risk Manager by the Provider and its
insurance company. The insurance must be furnished by insurance companies
authorized to do business in the State of Florida, and approved by the City's Risk
Manager. The companies must be rated no less than "B+" as to management, and not
less than "Class VI" as to strength by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the
approval of the City's Risk Manager. Original Certificates of Insurance for the above
coverage must be submitted to the City's Risk Manager for approval prior to any work
commencing. These certificates will be kept on file in the Office of the Risk Manager,
Third Floor City Hall.
The City shall have the right to obtain from the Provider specimen copies of the insurance
policies, in the event that submitted Certificates of Insurance are inadequate to ascertain
compliance with required coverage. Compliance with the foregoing requirements shall not
relieve the Provider of its obligation to indemnify and hold the City harmless, as required
in this section.
Section 22. Conflict of Interest: The Provider covenants that no person under its employ who
presently exercises any functions or responsibilities in connection with community
development funded activities has any personal financial interests,direct or indirect,in this
Agreement. The Provider covenants that in the performance of this Agreement, no
person having such conflicting interest shall be employed. The Provider covenants that it
will comply with all provisions of 24 CFR 570.611 "Conflict of Interest", and the, State,
County and City of Miami Beach statutes, regulations, ordinances or resolutions governing
conflicts of interest. The Provider shall disclose, in writing, to the City any possible
conflicting interest or apparent impropriety that is covered by the above provisions. This
disclosure shall occur immediately upon knowledge of such possible conflict. The City will
then render an opinion,which shall be binding on both parties.
Section 23. Venue: This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida, both substantive and remedial, without regard to principles of
conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall
be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern
District of Florida, if In federal court. BY ENTERING INTO THIS AGREEMENT, CITY
AND PROVIDER EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A
TRIAL BY,JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,THIS
AGREEMENT.
Section 24. Notices: All notices required under this Agreement shall be sent to the parties at the
following address:
City: Anna Parekh,Director
Office of Real Estate,Housing and Community Development
City of Miami Beach
1700 Convention Center Drive, Miami Beach, FL 33139
8
Provider: Roberto Datorre,President
Miami Beach Community Development Corporation
945 Pennsylvania Avenue
Miami Beach, FL 33139
Section 25. Limitation of Liability: The City desires to enter into this Agreement only if in so doing
the City can place a limit on City's liability for any cause of action for money damages due
to an alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of $10,000. Provider hereby expresses its willingness to enter
Into this Agreement with Provider's recovery-from the City for any damage action for
breach of contract to be limited to a maximum amount of$10,000.
Accordingly, Provider hereby agrees that the City shall not be liable to Provider for
damages in an amount in excess of$10,000,for any action or claim for breach of contract
arising out of the performance or nonperformance of any obligations imposed upon the
City by this Agreement. Nothing contained in this subparagraph or elsewhere in this
Agreement is in any way intended to be a waiver of the limitation placed upon City's
liability as set forth in Florida Statutes,Section 768:28.
Section 26. This Agreement shall be binding upon all parties hereto and their respective heirs,
executors,administrators,successors and assigns.
[SIGNATURES TO FOLLOW]
i
9
i
IN WHTNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their
duly authorized officials on the day and date first above indicated.
MIAMI REACH COMMUNITY DEVELOPMENT CORPORATION
a Florida not-for-profit corporation
ATTEST'.
Secretary P';— e en nature
Roberto Datorre.President
Print Name Print Name and Title
CITY OF MIAMI BEACH
a Florida Municipal corporation
ATTEST:
City C rk 'Jorge R. Exposito
n e-Mayor
Print Name `� .• '•••.,f'rn, ;a me
:INCORP ORATED: ,
lq-26- }'
APPROVED AS TO
FORM&LANGUAGE
'FOR EXECUTION
i t n Date
F:IRHCDI$ALLIHSG-CD1Brian\FY 2012 131MB CDCIThe London House Ph II1MB CDC London House II Agreement.doc
10
' I21a I
— -- - - 11.1• �
1414 I I
7.14
-
.__._.._...__ 2w
L74
12.13
B.Ib
--�-•- -013
r.t0 1 -
0,13
313 - -
--r
3.13
,1,12 I
.... 10.12 F ...
——- -s.12 i _
-------�— -a12
—- '-a.12 -
__ -- - 412 -
- 3.12 I —t
212 I 1 I 1
t 1.12 1
12 11 FFF _
_77.11 I
70.11 I -- -
411 11 HIM I I ! ..-
-I- � 1 7111 I I I ICI � 1
7.11 1
0,11 I I
1— 111 I
El
---'I---_--.._-- 2.11
-
I
_____.•-_.-.°-_�_ 1210
11.10
-
0.10 I 1 I
- -1 -710
- _ -
41:0
0
1.
1•0
+209 I i -
-
----� 10.09 i
-- a I I I I I I i i I I I I I I I
-
. -
f --- 309 II
T-----4M I I !1 T
__ I 149
_§ 209 i 1
1200
Foa
--_ - 140e I I T I
sae
— -ew I
-
7m I -
_
_ roe -- -_
— — 3L00
1.06 I
- +zm I
—L'F —-nor I I 1 -I
1o.m I I
9.07 111 FT
—T
eor
C
..07
SOr
go I •__—_= for �-
11 I - t.07 I 1
LU 0
J Ic I II
CO
1 7
1w
0 wa w 8 a o qa ?Q
i
8�
§§RR o 0 0 0
py e g
a �a w v' CYI•8 i� {,tl
•5;
�$ Fl 0 GQQq000c. C?.ccO
a g1
o - i o 00 00 apaccao 8�1
oaf
s •;.
I
s app• -a s8 {��pa
0 7••�•o' o 0 o d a
4 1
e
180 q .�+ C k.•''l J
( a $ es a e I
S$ �o o oao 00 0 �e
�a 888 8 a
na
8 98 8 o,88 coo
s
11-1 -1
e .;�a cocoa;11118 Ig
�R
a'
EF,
i
1 r1
i
i
CDBG AGREEMENT
October 1,2012 to September 30, 2013
ATTACHMENT III
GUIDELINES FOR FINANCIAL MANAGEMENT OF CDBG-FUNDED ACTIVITIES
FINANCIAL MANAGEMENT SYSTEM
To comply with federal regulations, each program must have a financial management system
that provides accurate, current and complete disclosure of the financial status of the activity.
This means the financial system must be capable of generating regular financial status reports
which indicate the dollar amount allocated for each activity et revisions),
9 any budget
amount obligated (i.e., for which contract exists), and the amount expended for each activity.
The system must permit the comparison of actual expenditures and revenues against budgeted
amounts. The City must be able to isolate and to trace every CDBG dollar received and prove
where it went and for what it was used.
The City is responsible for reviewing and certifying the financial management of any operating
agency, which is not a City department or bureau, in order to determine whether or not it meets
all of the above requirements. If the agency's system does not meet these requirements and
modifications are not possible, the City must administer the CDBG funds for the operating
agency.
SUPPORT FOR EXPENDITURES
Sufficient support for expenses depends on the type of expenditure. They normally include the
following items:
• Salaries (should be supported by proper documentation in personnel files of hire date,
position, duties, compensation, raises with effective date, termination date, and similar type
information: Non-exempt employees are required by law to complete a timesheet showing
number of hours they worked during the day. All employees paid in whole or in part from
CDBG funds should prepare a time sheet indicating the hours worked on CDBG projects for
each pay period. Based on these time sheets and the hourly payroll costs for each
employee, a voucher statement indicating the distribution of payroll charges should be
prepared and placed in the appropriate files.)
• Employee Benefits (should be supported by personnel policies and procedures manual,
describing the types of benefits, eligibility and other relevant information.)
• Professional Services(should be supported by a complete and signed copy of the contract
between the organization and the independent contractor, describing at the minimum, period
of service, type of service and method for payments, in addition to the invoice from the
private contractor.)
• Purchases (at a minimum, purchases should be supported by a purchase order, packing list
and vendor invoice. Credit card statements, travel itineraries, vendor statements and similar
items do not represent support for an expense.)
Pagel of 2
i
RECORDS
Accounting records must be supported by source documentation. Invoices, bills of lading,
purchase vouchers, payrolls and the like must be secured and retained for four years in order to
show for what purpose funds were spent. Payments should not be made without invoices and
vouchers physically in hand. All vouchers/invoices should be on vendor's letterhead. Financial
records are to be retained for a period of four years,with access guaranteed to the City, to HUD
or Treasury officials or their representative.
AUDITS
For years beginning after June 30, 1996, all nonprofit organizations, state governments, and
local governments that receive Federal funding fall under the revised OMB Circular A-133,
Audits of States, Local Governments;-and Nonprofit Organizations. Non-Federal entities that
expend $300,000 or more in a year in Federal awards must have a single or program-specific
audit.
One co of the sub-recipient or vendors' audited financial statement shall be submitted to the
O copy p
City immediately following the end of the fiscal year(s)during which CDBG funds are received.
All auditees must submit to the Federal Audit Clearinghouse(FAC)a data collection form (Form
SF-SAC) and reporting package upon completion of the annual audit in accordance with OMB
Circular A-133. The deadline for this submission is the earlier of the 30 days after receipt of the
auditor's report(s), or nine months after the end of the audit period, unless a longer period is
agreed to in advance by the cognizant or oversight agency for the audit. Address for
submission is:
i
The Federal Audit Clearinghouse
1201 E. 10'h Street
Jeffersonville, IN 47132
Phone(301)457-1551 or(800)253-0696
Email:gov.facCcilcensus.Qov
Web: http://harvester.census.gov/sac
REQUESTS FOR PAYMENTS
Payments to sub-recipients will be on a reimbursement basis. Requests are to be submitted
utilizing the enclosed financial status, client profile and narrative report forms, in a format
consistent with the approved budget as shown in Attachment II, including an analysis of
expenses to budget. A cash advance may be available upon special request. All requests must
be submitted to:
Anna Parekh, Director
Office of Real Estate, Housing and Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Page 2 of 2
I
i
CDBG AGREEMENT
October 1, 2012 to September 30,2013
ATTACHMENT IV
APPLICABLE FEDERAL REGULATIONS
I. NON-DISCRIMINATION AND EQUAL ACCESS
No person in the United States shall on the grounds of race, color, national origin,
religion or sex be excluded, denied benefits or subjected to discrimination under any
program funded in whole or in part by CDBG funds. The Provider must take measures
to ensure non-discriminatory treatment, outreach and access to program resources.
This applies to employment and contracting, as well as to marketing and selection of
program participants.
Fair Housing and Equal Opportunity
The Provider must comply with all the following Federal laws, executive orders and
regulations pertaining to fair housing and equal opportunity. They are summarized
below:
® Title VI of the Civil Rights Act of 1964. As Amended (42 USC 2000d et seg.): States
that no person may be excluded from participation in, denied the benefits of, or
subjected to discrimination under any program or activity receiving Federal financial
assistance on the basis of race, color or national origin. The regulations
implementing the Title VI Civil Rights Act provisions for HUD programs may be found
in 24 CFR Part 1.
The Fair Housing Act (42 USC 3601-3620): Prohibits discrimination in the sale or
rental of housing, the financing of housing or the provision of brokerage services
against any person on the basis of race, color, religion, sex, national origin, handicap
of familial status. Fair Housing Act implementing regulations may be found in 24
CFR Part 100-115.
• Equal Opportunity in Housing (Executive Order 11063, as amended by Executive
Order 12259): Prohibits discrimination against individuals on the basis of race, color,
religion, sex or national origin in the sale, rental, leasing or other disposition of
residential property, or in the use or occupancy of housing assisted with Federal
funds. Equal Opportunity in Housing regulations may be found in 24 CFR Part 107.
• Age Discrimination Act of 1975, As Amended (42 USC 6101): Prohibits age
discrimination in programs receiving Federal financial assistance. Age
Discrimination Act regulations may be found in 24 CFR Part 146.
Section 109 of Title I of the Housing and Community Development Act of 1974:
Requires that no person shall be excluded from participation in, denied the benefits
of, or be subjected to discrimination under any program or activity funded with CDBG
funds on the basis of race, color, religion, national origin or sex.
Affirmative Marketing
The Provider must adopt affirmative marketing procedures and requirements for all
CDBG-assisted housing with five or more units. Requirements and procedures must
include:
Page 1 of 8
i
• Methods for informing the public, owners and potential tenants about fair housing
laws and the Provider's policies (for example: use of the Fair Housing logo or equal
opportunity language);
• A description of what owners and/or the Provider will do to affirmatively market
housing assisted with CDBG funds;
• A description of what owners and/or the Provider will do to inform persons not likely
to apply for housing without special outreach;
• Maintenance of records to document actions taken to affirmatively market CDBG-
assisted units and to assess marketing effectiveness; and
• A description of how efforts will be assessed and what corrective actions will be
taken where requirements are not met.
Handicapped Accessibility
The CDBG regulations also require adherence to the three following regulations
governing the accessibility of Federally assisted buildings,facilities and programs.
• Americans with Disabilities Act (42 USC 12131; 47 USC 155, 201. 218 and 225):
Provides comprehensive civil rights to individuals with disabilities in the areas of
employment, public accommodations, state and local government services and
telecommunications. The Act, also referred to as the ADA, also states that
discrimination includes the failure to design and construct facilities (built for first
occupancy after January 26, 1993)that are accessible to and usable by persons with
disabilities. The ADA also requires the removal of architectural and communication
barriers that are structural in nature in existing facilities. Removal must be readily
achievable, easily accomplishable and able to be carried out without much difficulty
or expense.
• Fair Housing Act: Multi-family dwellings must also meet the design and construction
requirements at 24 CFR 100.205, which implement the Fair Housing Act (42 USC
3601-19)
• Section 504: Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in
federally assisted programs on the basis of handicap. Section 504 imposes
requirements to ensure that "qualified individuals with handicaps" have access to
programs and activities that receive Federal funds. Under Section 504, recipients
and subrecipients are not required to take actions that create unique financial and
administrative burdens or after the fundamental nature of the program. For any
Provider principally involved in housing or social services, all of the activities of the
agency -- not only those directly receiving Federal assistance -- are covered under
Section 504. Contractors or vendors are subject to Section 504 requirements only in
the work they do on behalf of the Provider or the City. The ultimate beneficiary of the
Federal assistance is not subject to Section 504 requirements.
• The Architectural Barriers Act of 1968 (42 USC 4151-4157): Requires certain
Federal and Federally-funded buildings and other facilities to be designed,
constructed or altered in accordance with standards that ensure accessibility to, and
use by, physically handicapped people.
Page 2of8
I
II. EMPLOYMENT AND CONTRACTING
The Provider must comply with the regulations below governing employment and
contracting opportunities. These concern equal opportunity, labor requirements and
contracting/procurement procedures.
Equal Opportunity
The Provider must comply with the following regulations that ensure equal opportunity
for employment and contracting.
• Equal Employment Opportunity, Executive Order 11246, as amended: Prohibits
discrimination against any employee or applicant for employment because of race,
color, religion, sex or national origin. Provisions to effectuate this prohibition must be
included in all construction contracts exceeding $10,000. Implementing regulations
may be found at 41 CFR Part 60.
• Section 3 of the Housing and Urban Development Act of 1968: Requires that, to the
greatest extent feasible, opportunities for training and employment arising from
CDBG funds will be provided to low-income persons residing in the program service
area. Also, to the greatest extent feasible, contracts for work (all types) to be
performed in connection with CDBG will be awarded to business concerns that are
located in or owned by persons residing in the program service area.
• Minority/Women's Business Enterprise: Under Executive Orders 11625, 12432 and
12138, the City and the Provider must prescribe procedures acceptable to HUD for a
minority outreach program to ensure the inclusion, to the maximum extent possible,
of minorities and women, and entities owned by minorities and women, in all
contracts(see 24 CFR 85.36(e)).
Labor Requirements
The Provider must comply with certain regulations on wage and labor standards. In the
case of Davis-Bacon and the Contract Work Hours and Safety Standards Acts, every
contract for construction (in the case of residential construction, projects with eight or
more units)triggers the requirements.
• Davis-Bacon and Related Acts (40 USC 276(6)-7): Ensures that mechanics and
laborers employed in construction work under Federally-assisted contracts are paid
wages and fringe benefits equal to those that prevail in the locality where the work is
performed. This act also provides for the withholding of funds to ensure compliance,
and excludes from the wage -requirements apprentices enrolled in bona fide
apprenticeship programs.
• Contract Work Hours and Safety Standards Act, as amended (40 USC 327-333):
Provides that mechanics and laborers employed on Federally-assisted construction
jobs are paid time and one-half for work in excess of 40 hours per week, and
provides for the payment of liquidated damages where violations occur. This act
also addresses safe and healthy working conditions.
• Copeland (Anti-Kickback) Act (40 USC 276c): Governs the deductions from
paychecks that are allowable. Makes it a criminal offense to induce anyone
employed on a Federally assisted project to relinquish any compensation to which
he/she is entitled, and requires all contractors to submit weekly payrolls and
statements of compliance.
Page 3 of 8
I
i
I
• Fair Labor Standards Act of 1938, As Amended (29 USC 201, et. seg.): Establishes
the basic minimum wage for all work and requires the payment of overtime at the
rate of at least time and one-half. It also requires the payment of wages for the
entire time that an employee is required or permitted to work, and establishes child
labor standards.
Contracting and Procurement Practices
The CDBG program is subject to certain Federal procurement rules. In addition, the City
and the Provider must take measures to avoid hiring debarred or suspended contractors
or subrecipients and conflict-of-interest situations. Each is briefly discussed below.
• Procurement: For the City, the procurement standards of 24 CFR 85.36 apply. For
non-profit organizations receiving CDBG funds, the procurement requirements at 24
CFR Part 84 apply.
• Conflict of Interest: The CDBG regulations require grantees (the City), state
recipients and subrecipients (the Provider) to comply with two different sets of
conflict-of-interest provisions. The first set of provisions comes from 24 CFR Parts
84 and 85. The second, which applies only in cases not covered by 24 CFR Parts
84 and 85, is set forth in the CDBG regulations. Both sets of requirements are
discussed below.
The provisions at 24 CFR 85.36 and 24 CFR 84.42 apply in the procurement of
property and services by grantees (the City), state recipients, and subrecipients
(the Provider). These regulations require the City and the Provider to maintain
written standards governing the performance of their employees engaged in
awarding and administering contracts. At a minimum,these standards must:
- Require that no employee, officer, agent of the City or the Provider shall
participate in the selection, award or administration of a contract supported by
CDBG if a conflict-of-interest, either real or apparent, would be involved;
- Require that employees, officers and agents of the-City or the Provider not
accept gratuities, favors or anything of monetary value from contractors,
potential contractors or parties to-subagreements; and
Stipulate provisions for penalties, sanctions or other disciplinary actions for
violations of standards.
A conflict would arise when any of the following has a financial or other interest in
a firm selected for an award:
- An employee, agent or officer of the City or the Provider;
- Any member of an employee's, agent's or officer's immediate family;
- An employee's, agent's or officer's partner; or
- An organization that employs or is about to employ an employee, agent or
officer of the City or the Provider.
The CDBG regulations at 24 CFR 570.611 governing conflict-of-interest apply in
cases not covered by 24 CFR 85.36 and 24 CFR 84.42. These provisions cover
employees, agents, consultants, officers and elected or appointed officials of the
grantee (the City), state recipient or subrecipient (the Provider). The regulations
state that no person covered who exercises or has exercised any functions or
responsibilities with respect to CDBG activities or who is in a position to
participate in decisions or gain inside information:
Page 4 of 8
i
May obtain a financial interest or benefit from a CDBG activity;or
Have an interest in any contract, subcontract or agreement for themselves or
for persons with business or family ties.
This requirement applies to covered persons during their tenure and for one year
after leaving the grantee (the City), the state recipient or subrecipient (the
Provider)entity.
Upon written request, exceptions to both sets of provisions may be granted by
HUD on a case-by-case only after the City has:
- Disclosed the full nature of the conflict and submitted proof that the disclosure
has been made public; and
- Provided a legal opinion from the City stating that there would be no violation
of state or-local law Jf the exception were granted.
® Debarred contractors: In accordance with 24 CFR Part 5, CDBG funds may not be
used to directly or indirectly employ, award contracts to or otherwise engage the
services of any contractor or subrecipient during any period of debarment,
suspension or placement of ineligibility status. The City should check all contractors,
subcontractors, lower-tier contractors or subrecipients against the Federal
publication that lists debarred, suspended and ineligible contractors.
! III. ENVIRONMENTAL REQUIREMENTS
The City is responsible for meeting a number of environmental requirements, including
environmental reviews, flood insurance, and site and neighborhood standards.
Environmental Review
The City is .responsible for undertaking environmental reviews in accordance with the
requirements imposed on "recipients" in 24 CFR 58. Reviews must be completed, and
Requests for Release of Funds (RROF) submitted to HUD before CDBG funds are
committed for non-exempt activities. Private citizens and organizations may object to
the release of funds for.CDBG .projects on certain procedural grounds relating to
environmental review (see 24 CFR 58.70 - 58.77). To avoid challenges, grantees (the
City) and subrecipients (the Provider) should be diligent about meeting procedural
requirements.
Flood Insurance
Section 202 of the Flood Disaster Protection Act of 1973 (42 USC 4106): Requires that
CDBG funds shall not be provided to an area that has been identified by the Federal
Emergency Management Agency (FEMA) as having special flood hazard, unless: The
community is participating in the National Flood Insurance Program, or it has been less
than a year since the community was designated as having special flood hazards; and
Flood insurance is obtained.
IV. LEAD-BASED PAINT
On September 15, 1999,the"Requirements for Notification, Evaluation and Reduction of
Lead-Based Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance; Final Rule" was published within title 24 of the Code of
Federal Regulations as part 35 (24 CFR 35). The regulation was issued under sections
1012 and 1013 of the Residential Lead-Based Paint Hazard Reduction Act of 1992, j
which is Title X(ten)of the Housing and Community Development Act of 1992. Sections
i
Page 5 of 8
i
i
1012 and 1013 of Title X amended the Lead-Based Paint Poisoning Prevention Act of
1971, which is the basic law covering lead-based paint in federally associated housing.
The regulation sets hazard reduction requirements that give much greater emphasis to
reducing lead in house dust. Scientific research has found that exposure to lead in dust
is the most common way young children become lead poisoned. Therefore, the new
regulation requires dust testing after paint is disturbed to make sure the home is lead-
safe. Specific requirements depend on whether the housing is being disposed of or
assisted by the federal government, and also on the type and amount of financial
assistance, the age of the structure, and whether the dwelling is rental or owner
occupied.
li
On April 22, 2008, the EPA issued a rule requiring the use of lead-safe practices and
other actions aimed at preventing lead poisoning to protect against the hazards created
by exposure to lead dust in existing structures built prior to 1978. Under the rule, all
contractors performing renovation, repair and painting projects that disturb lead-based '
paint in homes, child care facilities, and schools built before 1978 must be certified and
follow specific work practices to prevent lead contamination. This rule (40 CFR Part 745)
is enforced as of April 22, 2010. The rule must be executed by all sub-contractors.
PROPERTY EXEMPT FROM LEAD-BASED PAINT REGULATION.
• Housing built since January 1, 1978,when lead paint was banned for residential use;
• Housing exclusively for the elderly or people with disabilities, unless a child under
age 6 is expected to reside there;
• Zero-bedroom dwellings, including efficiency apartments, single-room occupancy
housing, dormitories or military barracks;
• Property that has been found to be free of lead-based paint by a certified lead-based
paint inspector;
• Property where all lead-based paint has been removed;
• Unoccupied housing that will remain vacant until demolished;
• Non-Residential property; and
• Any rehabilitation or housing improvement that does not disturb a painted surface.
TYPES OF HOUSING SUBJECT TO 24 CFR 35
• Federally-Owned housing being sold;
® Housing receiving a federal subsidy that is associated with the property, rather than
with the occupants(project-based assistance);
• Public housing;
• Housing occupied by a family (with a child) receiving tenant-based subsidy(such as
a voucher or certificate);
• Multifamily housing for which mortgage insurance is being sought;and
• Housing receiving federal assistance for rehabilitation, reducing homelessness, and
other special needs.
If you want copies of the regulation or have general questions, you can call the National
Lead Information Center at (800) 424-LEAD, or TDD (800) 526-5456 for the hearing
impaired. You can also download the regulation and other educational materials at
http://www.hud.gov/offices/lead/index.cfm. For further information, you may call HUD at
(202)755-1785, ext. 104, or e-mail HUD at lead regulations@hud.gov.
Page 6 of 8
- I
V. DISPLACEMENT, RELOCATION,ACQUISITION AND REPLACEMENT OF HOUSING
CDBG projects involving acquisition, rehabilitation or demolition may be subject to the
provisions of the Uniform Relocation Act (UDA). Demolition or conversion of units with
CDBG funds may trigger section 104(d)(also known as the "Barney Frank Amendment".
requirements.)
VI. COMPLIANCE WITH NATIONAL OBJECTIVE
The Provider will ensure and maintain evidence that activities assisted with CDBG funds
from the City of Miami Beach comply with the primary National Objective, "Benefit to Low
and Moderate Income Persons"and will provide services or activities that benefit at least
51% low and moderate income persons. A low or moderate-income household is
defined as: a household having an income equal to, or less than, the limits cited below.
Individuals who are unrelated but are sharing the same household shall each be
considered as one-person households.
Lour and Moderate Household Income Limits, (Effective 05114/2010) (Source: U.S.
Department of Housing & Urban Development) (Note: Low-Income (80% of Median
Income), Very Low-Income (50 % of Median Income), Extremely Low (30% of Median
Income)
US HUD INCOME LIMITS FY 2012
1 2 3 4 5 6 7 8
Person Person Person Person Person Person Person Person
30% of 13800 15800 17750 19700 21300 22900 24450 26050
Median
Very Low 23000 26250 29550 32800 35450 38050 40700 43300
Income
Low-Income 36750 4200 47250 52500 5.6700 60900 65100 69300
Page 7 of 8
1
1
LOW/MODERATE INCOME DATA
SOUTHERN TARGET AREA-
-Census Tract Total UM Persons Total Persons % Low/Mod
40.00-5 310 448 69.20
41.01-1 614 757 81.11
41.01-2 2,137 4,002 53.40
41.01-3 810 1,511 53.61
42 10,042 13,736 73.11
43 6,728 9,582 70.21
44 10,774 13,244 81.35
45 1,768 2,307 76.64
TOTAL 33,183 1 45,587 1 73% UM
NORTHERN TARGET AREA
Census Tract Total L/M Persons Total Persons % Low/Mod
39.01-1 603 1,036 58.20
39.01-2 620 836 74.16
39.01-3 407 468 86.97
39.01-4 518 772 67.10
39.01-5 1,593 2,256 70.61
39.01-6 1,581 2,240 70.58
39.02-1 704 80.71 7 78.48
39.02-2 876 1,187 73.80
39.02-3 211 211 100.00
39.02-4 1,564 2,097 74.58
39.05-2 2,408 3,346 71.97
39.05-4 2,401 3,071 78.18
TOTAL 8,677 12,000 - 72% L/M
F.\RHCD%AWKSG•C01Brian1FY 2012131 Contracts\Attachemenls%ttechmenl IV CDBG Applicable Federal Regulelions.doc
Page 8 of 9
EXMBIT D
RDA ACQUISITI®N GRANT
I
i
LOAN AGREEMENT
THIS LOAN AGREEMENT(the"Loan"or the"Agreement") executed this�Oday of
, 2007, by MBCDC: THE LONDON LLC, a Florida limited liability company(the
'B rrower"), whose address is 945 Pennsylvania Avenue,Miami Beach, Florida 33139, and the
MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate and politic (the
"RDA")(which terms as used in every instance shall include the RDA's successors and assigns),
whose address is 1700 Convention Center Drive,Miami Beach,Florida 33139.
WIIEREAS, Borrower is a Florida limited liability company whose sole member is
Miami Beach Community Development Corporation (MBCDC) Inc., a .Florida not-for-profit
housing corporation which is also the City of Miami Beach, Florida's designated Community
Housing Development Organization(CHDO);and
WHEREAS, Borrower is undertaking a project to acquire and construct, improve,
renovate,rehabilitate, and equip that certain historically designated real property located at 1965
Washington Avenue and 1975 Washington Avenue, Miami Beach, Florida (and hereinafter
referred to as the "Premises", as defined herein) for the purpose of providing affordable rental
housing for low to moderate income individuals and families(the'Project'); and
WHEREAS, the Premises and Project are/is located within the City Center/Historic
Convention Village Redevelopment Area, a community redevelopment area in the City of Miami
Beach, Florida,designated and created pursuant to Sections 163.330— 163.463,Florida Statutes
(the "Community Redevelopment Act of 1969") (hereinafter referred to as the "City Center
RDA");and
WHEREAS, the Project is consistent with the City Center/Historic Convention Village
Redevelopment and Revitalization Area Plan, as adopted by the City of Miami Beach
Commission and the Miami Beach Redevelopment Agency, respectively,and as approved by the
Miami-Dade County Board of County Commissioners (hereinafter referred to as the
"Redevelopment Plan"); and
WHEREAS,the Project will promote the Redevelopment Plan objectives by(i)restoring
and preserving historically contributing properties within the City Center RDA; and (ii) creating
new affordable housing.opportunities within said RDA for low and moderate income individuals
and families;and
WHEREAS, pursuant to Miami Beach Redevelopment Agency Resolution No. 540-
2007, passed and adopted on January 17, 2007, and Miami Beach Redevelopment Agency
Resolution No. 545-2007, passed and adopted on March 14, 2007, and subject further to the
terms and conditions hereinafter contained, the RDA has agreed to loan Borrower the funds for
Borrower's acquisition of the Premises.
i
10171TNES8ETH:
That for valuable consideration, and also in consideration of the aggregate sum of money
described in that certain Promissory Note (the "Note") of even date herewith, executed by
Borrower in favor of the RDA, in the original principal amount of$4,603,852.50 (the "Principal
Amount" or the "Loan"), and attached and incorporated as Exhibit "A" hereto, the Borrower
does grant, bargain, sell, alien, remise, release, convey and confnm unto the RDA., a lien upon
and security interest in that certain parcel of real property located in Miarni-Dade County,
Florida, which is described in Exhibit"B", attached hereto and made a part hereof. Hereinafter
i
said real estate, buildings, improvements (including any and all improvements to be. made
hereafter and fixtures herein below described and located on said real estate are collectively
referred to as the"Premises".
The Borrower covenants with the RDA as follows:
ARTICLE I.
A. Rotations Coven and Warranties of the Miami Beach Redevelopment AMZ RDA). The
RDA represents,covenants and warrants that:
(i) The RDA is a public body corporate and politic, created pursuant to the Community
Redevelopment Act 1969.
(ii) The RDA bas been duly authorized to execute and deliver this Agreement,and is authorized
lion s con fated b this Agreement and to out its obligations
to enter into the transac () temp y gt'eem carry
hereunder,
Covenants and Warranties of the Borrower.The Bonner resen cover�atlts and
B Representations.C reP �
warrants that:
{i) The Borrower is a linrited liability company validly organized and existing wider the laws of
the State of Florida,whose sole member is Mami Beach Community Development Corparation,tnc,,a not-for-
profit housing corporation validly organized and existing under the laws ofthe State ofFlorida,
(ii) The Borrower is not in violation of any provision of its Articles of Organization, has the
corporate power to enter into the Agreement and the Note, or any agreement or instrument to which the
Borrower is a party,used or contemplated for use in the consummation of the transaction(s)contemplated
hereby,and has duly authorized the execution and delivery of this Agreement and the Note,and has or shall
authorize the execution of any agreement or insU ument to which the Borrower is a party,used or contemplated
for use in the consummation of the transaction(s)contemplated hereby.
('iii) The Borrower agrees that during the term of the Affordability Period,as hereinafter defined,it
will maintain its existence as a limited liability company, will have as its sole member Maori Beach
2
Community Development Corporation,Ina,will not dissolve or otherwise dispose of all or substantially all of
its assets,and will not consolidate with or merge into another legal entity orpexmit one or more other legal entities
to consolidate with or merge into it without the prior written consent of the RDA,which consent,if given at all,
shall be at the RDA's sole judgment and discretion.
(iv) Neither the execution and delivery of this Agreement and the Note,nor the consummation of
the traimetion(s) contemplated hereby, nor the fulfillment of or compliance with the terms and conditions
hereof and thereof;conflicts with or results in a breach ofthe terms,conditions,or provisions of any agreement
or insimment to which the Borrower is now a party or by which the Borrower is bound,or constitutes a delhult
under any of the foregoing or results in the creation or imposition of any lien,charge or encumbrance whatsoever
upon any of thepropeity or assets of the Borrower under the te rns of any such instnnnent or agreement.
(v) There is no action, suit,proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
affecting the Borrower or any of its officers,nor to the best knowledge of the Borrower, is there any
basis thewforeti wherein an unfavorable decision,.ruling,or finding would materially adversely affect the
transactions contemplated by this.Agreement and the Note or which would adversely affect,in any way,
the Premises and/or the Project,or any agreement or instrument to which the Borrower is a party,used or
contemplated for use in the consummation of the transaction(s)contemplated hereby.
(vi) The Principal Amount will be used only to fund the cost(s) of acquisition for the
Premises.
(vii) Borrower will use due diligence to cause the Premises and the Project to be operated
in accordance with the laws,rulings,regulations and ordinances of the State of Florida and the departments,
agencies and political subdivisions thereof. Borrower has obtained or will cause to be obtained all requisite
approvals of the State of Florida and of other federal,State,regional and local governmental bodies, for
the acquisition, construction, improvement, renovation, rehabilitation, and equipping of the
Premises and the Project.
(viii) Borrower agrees that it shall use, maintain and operate, or caused to be used,
maintained or operated,the Premises and the Project for the welfare and benefit of the general public,
without regard to race, creed, color, sex, age or national origin. Borrower agrees that it shall not use,
maintain or operate,or cause to be used, maintained or operated the Premises and the Project,or any
part thereof in a manner which is prehiibited by(i) the Establishment of Religion Clause of the First
Amendment to the Constitution o f the United States of America and the decisions of the United States
Supreme Court interpreting the same, or(ii) any comparable provision of the Constitution of the State of
Florida and the decisions of the Florida Supreme Court interpreting the same.
(ix) Reasonable Expectations. Based on current facts, estimates and circumstances, it
is expected that:
(a) The Principal Amount is needed for the purpose of paying for the cost of
acquisition of the Premises which, together with other funds to be secured by Borrower
from other sources,are sufficient to complete the Project; and
(b) Work on the Projectwill proceed with due diligence to completion,
3
(c) Obligations of Borrower Unconditional. The obligations of the
Borrower required in Article Il (A)(ii)(b) above, and to perform and observe the
other terms and conditions of the Agreement and of the Covenant,shall be absolute
and unconditional and shall not be subject to any defense or any right of setoff,
counterclaim or recoupment arising out of any breach by the City of any obligation
to the Borrower, whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Borrower by the City, and, until such time as
Borrower's obligation has been discharged and Borrower has conveyed the Premises
to the RDA,the Borrower will continue to perform and observe all other agreements
contained in this Agreement and the Covenant and will not terminate the Agreement
or the Covenant for any cause including, without Iimiting the generality of the
foregoing, failure of the Borrower to complete the construction, renovation,
rehabilitation, improvement and equipping of the Premises and of the Project, the
occurrence of any acts or circumstances that may constitute failure of consideration,
eviction or constructive eviction, destruction of or damage to the Premises, the
taking by eminent domain of title to or temporary use of any or all of the Premises,
commercial frustration of purpose,any change in the tax or other laws of the United
States of America or of the State or any political subdivision of either thereof,or any
failure of the RDA to perform and observe any agreement, whether express or
implied, of any duty, liability or obligation arising out of or connected with this
Agreement.
B. Taxes.Liens and Other.Charges.
(a) In the event of the passage of any State, federal, municipal or other
governmental law, order,rule or regulation, subsequent to the date hereof, in any manner
changing or modifying the laws now in force governing the taxation of debts secured by
the Agreement or the manner of collecting taxes so as to affect adversely the RDA, the
Borrower will promptly pay any such tax; if the Borrower fails to make such prompt
payment or if any such State, federal,municipal or other governmental law,order,rule or
regulation prohibits the Borrower from making such payment or would penalize the RDA
from making such payment or would penalize the RDA if the Borrower makes such
payment, then, at the sole option and discretion of the RDA, either (i) the entire balance.
of the Principal Amount secured by this Agreement and all interest accrued thereon shall,
without notice, immediately become due and payable, or (ii) the Premises shall be
conveyed to the RDA in the manner provided in Article 11 A(ii)(b).
(b) The Borrower will pay, before the same become delinquent, all taxes,
liens, assessments and charges of every character already levied or assessed or that may
hereafter be levied or assessed upon or against the Premises and all utility charges,
whether public or private; and upon demand will furnish the RDA receipted bills
evidencing such payment.
(c) The Borrower will not suffer any mechanic's, materialmen's, laborer's,
statutory or other tier. which might or could be prior to or equal to the security interest
S
t
and Agreement Iiens of this Agreement to be created or to remain outstanding upon.any
part of the Premises.
C. No Subordination of RDA's Interest in Premises. The RDA's interest in the Premises, in
accordance with the provisions of this Agreement,the Note, and the Covenant, and as same may
be modified,amended or reviewed in accordance with the provisions thereof,shall not be subject
or subordinate to (i) any agreement now or hereafter existing, or (ii) any other liens or
encumbrances now or hereafter affecting the Premises without the written consent of the Miami
Beach Redevelopment Agency which consent, if given at all, shall be at the RDA's sole and
absolute discretion. Borrower shall provide written notice to the RDA prior to applying for any
mortgage, loan, grant, contribution, contract, agreement, and/or other funding application
(hereunder individually, a "funding application" or collectively, the "funding applications"),
which may potentially affect or encumber the Premises; such written notice shall provide the
RDA adequate lead time(and, in any event, shall be given no less than thirty(30)Business days
prior to the submittal of Borrower's application) for review of a proposed funding application,
and shall in no event be deemed by Borrower to constitute approval,whether express or implied,
of a particular funding application.
D. Insurance.
(i) The Borrower will keep all buildings and improvements now or hereafter
on the Premises continuously insured against loss or damage by fire, extended coverage,
and other perils,in such amounts and with such deductible provisions as are satisfactory
to the RDA and at least as are customary in connection with the operation of facilities of
the type and size comparable to the Premises and of the Project,and agrees to deliver said
policy or policies to the RDA when issued with the receipts for the payment of the
premium therefore. In the event any sum of money becomes payable under such policy
or policies,the RDA shall permit the Borrower to receive and use it or any part thereof,
for repair or restoration of the Premises,subject to terms reasonably acceptable to RDA,
without thereby waiving or impairing any equity, lien or right under or by virtue of this
Agreement,and the RDA if it deems necessary may place and pay for such insurance, or
any part thereof, without losing, waiving or affecting RDA's option to default Borrower
for breach of this covenant, or any part thereof, or any other right or option under this
Agreement,and every such payment shall bear interest from the date thereof until paid at
the default interest rate, and all such payments with interest as aforesaid shall be secured
by the lien hereof. In the event any loss or damage is suffered, Borrower shall notify
RDA of such loss or damage within seven (7) days after the happening thereof; the
failure to give such notice shall constitute a default and the RDA shall have the rights
herein given for all defaults.
(ii) The insurance policy or policies obtained in satisfaction of the requirements of
subsection(i)above:
(a) shall be by such insurer(or insurers)as shall be financially responsible,qualified
to do business in the State of Florida,and of recognized standing;
6
(b) shall be in such form and shall have such provisions (including, without
limitation,the loss payable clauses,the waiver of subrogation clause,the deductible
amount,if any,and the standard agreement endorsement clause), as are satisfactory to the
RDA and as are generally considered standard provisions for the type of insurance
involved;
(e) shall prohibit cancellation or modification by the insures without at least thirty
(30)days'prior written notice to the RDA;
(d) shall provide that losses thereunder shall be adjusted with the insurer by the
Borrower at its expense on behalf of the insured parties, and the decision of the
Borrower as to any adjustment shall,with the prior written consent of the RDA,which
consent shall not be unreasonably or untimely withheld,be final and conclusive;
(e) shall provide that the RDA shall not be liable for payment of any premiums
and assessments;
(fl without limiting the generality of the foregoing, such insurance policy or
policies shall name both the Miami Beach Redevelopment Agency and the City of Miami
Beach,Florida,respectively,as additional insureds.
(Iii) At least thirty(30) days prior to the expiration of any such policy or policies, the
Borrower shall furnish the RDA with evidence satisfactory to the RDA that the policy or
policies has/have been renewed or replaced. At least ten (10) days prior to the due date of any
premium payments)for any such policy or policies,Borrower shall famish the RDA with proof of such
payment(s).
E. Care of Premises.
(i) The Borrower will keep the improvements now or hereafter erected on the
Premises in good condition and repair, will not commit or suffer any waste, and
will not do or suffer to be done anything which will increase the risk of fire or
other hazard to the Premises or any part thereof.
(ii) The Borrower will not remove or demolish nor alter the design or
structural character of any building (now or hereafter erected), fixture or chattel
which are part of the security or other part of the Premises, without the prior
written consent of the RDA.
(iii) If the Premises or any part thereof is damaged by fire or any other cause,
the Borrower will immediately give written notice of the same to the RDA.
(iv) The RDA, or its duly authorized representative(s), shall have the right,
but shall not be required, to enter upon and inspect the Premises at all reasonable
tildes(including,without limitation, at any time during normal business hours).
i
(v) The Borrower will promptly comply with all present and future laws,
ordinances, rules and regulations of any.governmental authority affecting the
Premises and/or the Project,or any part thereof.
(vi) If all or any part of the Premises shall be damaged by fire or other
casualty, the Borrower will, upon request of the RDA, promptly restore the
Premises to the equivalent of its condition immediately prior to such damage, and
if a part of the Premises shall be damaged through condemnation, the Borrower
will, upon request of RDA,promptly restore, repair or alter the remaining part of
the Premises in a manner reasonably satisfactory to the RDA.
(vii) Maintenance and Modifications of Premises/Project by Borrower. The
RDA shall not be under any obligation to operate,maintain or repair all or any part of
the Premises and/or the Project. Borrower will at its sole cost and expense(i)keep
the PremismTroject in safe operating condition; (u)keep the PremismTroject in good repair
and in good condition;and{'iii)make from time to time all necessary repairs thereto and
renewals and replacements thereof. Borrower shall not permit or suffer others to
commit a nuisance-in or-about the Premises and/or Project or itself commit a
nuisance in connection with its use,operation, maintenance, and repair of the Premises
and/or Project. Borrower shall duly observe and conform to all present and future
requirements of law and requirements of govemmental authorities relative to the use,
operation,maintenance,and repair of the Premises and/or the Project.
(viii) No warranty by RDA and/or City of Miami Beach. Borrower recognizes
that since all components of the Premises and of the Project have been and are to be
selected by it and that the Premises and the Project are to be constructed, renovated,
rehabilitated, inrpraved, equipped, operated, maintained, and repaired solely by Borrower
(including without limitations,any officers,directors,members,agents,contractors, servants,
employees, and/or licencees of Bomower),neither the RDA nor the Oy of Miami Bah,
Florida(City)makes any warmty or representation,express or implied or otherwise, with
respect to the same, or to the location,use, description,design,merchantability,fitness
far use for any particular purpose,condition or durability of the Premises and/or the Project;
it being agreed that all risks,incident thereto are to be borne by the.Borrower.In the event of
any defect or deficiency of any nature in the Premises or any building, improvement,
fixture or other item constituting a portion thereof,neither the RDA nor.the City shall
have any responsibility or liability with respect thereto. The provisions of this
subsection(viii)have been negotiated and are intended to be a complete exclusion and
negation of any warranties or representations by the RDA and/or the City,express or implied,
with respect to the Premises and/or the Project;or any building,improvement;fixture or other
item constituting a portion thereof whether arising pursuant to the Uniform Commercial Code
of Florida,or any other law now or hereafter in effect or otherwise.
F. Further Assurances, Modifications. At any time, and from time to time, upon the
reasonable request by the RDA, the Borrower will make, execute and deliver or cause to be
made, executed and delivered,to the RDA, any and all other, further instruments,certificates and
other documents as may, in the opinion of the RDA, be necessary or desirable in order to
8
effectuate,complete,or perfect or to continue and preserve the obligations of the Borrower under
the Agreement,the Note, and/or the Covenant.
G. Expenses. The Borrower will pay or reimburse the RDA for all reasonable attorney's
fees, costs and expenses, of any action, legal proceeding or dispute of any kind in which the
RDA is victorious, affecting the indebtedness secured hereby, this Agreement or the interest
created herein, or the Premises, including but not limited to the RDA's prosecution to enforce
any term and/or condition, and/or default, of this Agreement and/or the Covenant, any
condemnation action involving the Premises, or any action to protect the security hereof;and any
such amounts paid by the RDA shall be secured by this Agreement.
i Estoppel Affidavits. The Borrower, upon ten 10 days prior written
notice,shall furnish the RDA with a written statement,duly acknowledged,which
may be relied on by the RDA, certifying the unpaid principal of, and interest on,
the indebtedness secured hereby and whether or not any off sets or defenses exist
against such principal and interest. The RDA shall provide a similar estoppel
affidavit to Borrower, upon ten(10)days prior written notice to RDA.
H. Performance by RDA of Defaults by Borrower. If tho Borrower shall default in the
payment of any tax, lien,assessment or charge levied or assessed against the Premises and/or the
Project; in the payment of any utility charge, whether public or private; in the payment of any
insurance premium; in the procurement of insurance coverage and the delivery.of the insurance
policies required hereunder; in the performance of any covenant, term or condition of any leases
affecting all or any part of the Premises; or in the performance or observance of any covenant,
condition or term of this Agreement; then the RDA, at its option, may perform or observe the
same, and all payments made or costs incurred by the.RDA in connection therewith, shall be
secured hereby and shall be,without demand,immediately repaid by the Borrower to the RDA.
The RDA is hereby empowered to enter and to authorize others to enter upon the Premises or
any part thereof for the purpose of performing or observing any such defaulted covenant,
condition or term, without thereby becoming liable to the Borrower or any other person in
possession holding under the Borrower.
I. Restrictive Covenants. BoiTower shall be subject to the following covenants and
restrictions:
(i) It is acknowledged by the parties hereto that the Borrower must use the
Premises as an affordable rental property for a thirty (30) year period,
commencing from the date of issuance by the City of Miami Beach Building
Department of a Final Certificate of Completion for the rehabilitation/renovation '
of the Premises(the"Affordability Period"), and the rents charged and the tenants
thereof must qualify under the rules and regulations promulgated by the United
States Department of Housing and Urban Development at CFR Part 92, as same
may be amended from time to time. Ternis defined in 24 CFR Part 92, and any
amendments thereto, not otherwise defined in this Agreement, shall have the
meaning sot forth therein, In order to further ensure the enforcement of this
subsection(i),Borrower hereby recognizes, agrees,authorizes, and covenants that
9
the Premises shall not be sold, transferred,disposed of, or otherwise conveyed,
except to the RDA as provided herein.
(ii) If, at any time during the Affordability Period, the Premises are no longer
used as an affordable rental property by the Borrower, then the Miami Beach
Redevelopment Agency, at its sole option and discretion, may elect one of the
following options:
(a) Require Borrower to re-pay the Principal Amount, in full, together
with all interest thereon, and any and all other amounts secured by this
Agreement;or
(b) Require Borrower, automatically, and without further action
required by the RDA, to promptly, on written demand by the RDA,
convey fee simple marketable title to the Premises, by execution and
delivery of a Special Warranty Deed (subject to no liens or encumbrances
created by through or under Borrower) to the RDA. Borrower shall be
responsible for the cost of documentary stamps and/or other tax(es)
imposed as a result of the conveyance contemplated by this subsection(ii)
(b).
(iii) Upon the conclusion of the Term of this Agreement or the Affordability
Period, whichever is later, the Miami Beach Redevelopment Agency may, at its
sole option and discretion,elect on of the following options:
(a) Extend this_ Agreement and the Affordability Period for an
additional term,with such term to be determined in the sole judgment and
discretion of the RDA;or
(b) Require Borrower, automatically, and without further action
required by the RDA, to promptly, on written demand by the RDA,
convey fee simple marketable title to the Premises, by execution and
delivery of a Speciai.Warranty Deed(subject to no liens or encumbrances
created by through or under Borrower) to the RDA. Borrower shall be
responsible for the cost of documentary stamps and/or other tax(es)
imposed as a result of the conveyance contemplated by this subsection(iii)
(b).
(iv) The Principal Amount, together with all interest thereon, and any and all
other amounts secured by this Agreement, shall remain a lien superior in dignity
to all other liens, titles, claims, Agreements, and/or other encumbrances, until
satisfied in the manner provided herein.
(v) Borrower further recognizes, agrees, acknowledges and herein covenants
that, in order to emnre the enforcement of this Article II (1.), Borrower shall;
concurrent with its execution and delivery of this Agreement and the Note,
10
execute and deliver to the RDA the Declaration of Covenants and Restrictions
(the "Covenant'), which Covenant is attached and incorporated as Exhibit "C"
hereto.
(vi) The foregoing covenants and restrictions (as also set forth in the Covenant
attached and incorporated as Exhibit "C" hereto) shall be considered and
construed as covenants and restrictions running with the land and recorded against
the Premises, and the same shall bind all persons and/or entities claiming
ownership of all or any portion of the Premises. The Borrower hereby
acknowledges and agrees that the RDA and the City of Miami Beach,Florida are
beneficiaries of the restrictive covenants contained herein and in the Covenant,
and that the Covenant shall not be released and/or amended without the prior
written consent of the RDA.
(vii) Invalidation of any of these covenants by a Court of competent
jurisdiction shall in no way affect any of the other covenants which shall remain
in full Force and effect.
Jr. Condemnation, If all or any material part of the Premises shall be damaged or taken
through condemnation (which term when used in this Agreement shall include any daniage or
taking by any governmental authority, and any transfer by private sale in lieu thereof), either
temporarily or permanently,the entire indebtedness secured hereby shall,at the sole option of the
RDA, become immediately due and payable, The RDA shall be entitled to all compensation
awards, and other payments or relief therefore and is hereby authorized, at its option, to
conunence, appear in and prosecute,in its own or the Borrower's name,any action or proceeding
relating to any condemnation, and to settle or compromise any claim in connection therewith.
All such compensation, awards, damages, claims, rights of action and proceeds and the right
thereto are hereby assigned by the Borrower to the RDA;who, after deducting therefrom all its
expenses, including attorney's fees, may, at its sole option, release any moneys so received by it
to Borrower without affecting the lien of this Agreement or may apply the same to the reduction
of the sums secured hereby; and to any prepayment charge herein provided, and any balance of
such moneys then remaining shall be paid to the Borrower. The Borrower agrees to execute such
further assignments of any compensations, awards, damages, claims, rights of action and
proceeds as the RDA may reasonably require. Notwithstanding the foregoing,RDA shall allow
any proceeds or other sums payable from a condemnation proceeding to be applied for
restoration of the Premises, subject to such terms and conditions as are reasonably satisfactory to
the RDA.
K. Hazardous Waste Storage-. The Borrower covenants with the RDA that the Premises
have not been used and will not be used in whole or in part for the storage of hazardous waste
other than in accordance with all applicable governmental requirements,
L. Reports.
M progress Reports, During the construction for the improvement, rehabilitation
and renovation of the Premises (as contemplated by the Project herein), Borrower agrees to
11
i
I
t
submit monthly progress reports to the RDA, describing the status of the Project and
achievement of objectives as provided herein. The progress reports shall be sabmitted no later
than 10 days after the end of each month until such time as the Project is issued a Final
Certificate of Completion from the City of Miami Beach Building Department and is fully
occupied.
(ii) Tenant and Rent Schedule Certification.
(a). Borrower shall submit to the RDA for its review and written approval the
proposed rents for the units and, if applicable,the monthly allowances for utilities
and services to be paid by tenant(s). The RDA shall approve submitted rents if
such gents comply with the applicable rules and regulations promulgated by the
United States Department of Housing and Urban Development at CFR Part 92, as
same may be amended from time to time.
(b) Borrower shall provide the RDA with the initial tenant list,and any and all
subsequent updates, amendments and modifications thereto, with documentation
for all tenants confirming family size, income, financial classification, ethnicity,
rents charged, and other information the RDA may reasonably require to ensure
that the objectives of the Project are being met. This report will continue to be
required for the duration of the Term of this Agreement or the Affordability
Period, whichever is later. The initial report shall be due within thirty(30) days
of Project lease-up.
(c). Annually, Borrower shall deliver to the RDA, by October 31st of each
calendar year, its signed report in form and substance acceptable to the RDA, to
include names of tenants, unit type, family size and income, rents charged, and
occupancy/vacancy factor of each unit for the prior fiscal year (October 1st
through September 30th). The report will continued to be required throughout the
Term of this Agreement or the Affordability Period,whichever is later, beginning
on the date of issuance of a Final Certificate of Completion for the Project,
(iii) Borrower shall submit such other reports as may be reasonably required by the
RDA to demonstrate compliance with any of the teams of this Agreement and/or the Covenant.
M. Audit and Inspection. At any time during normal business hours, and as often as
the RDA may deem necessary, there shall be made available to the RDA to audit, examine and
make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of
employment, and other data relating to all matters covered by this Agreement. Borrower must
maintain records necessary to document compliance with the provisions of this Agreement
and/or the Covenant.
N. Access to Records. Borrower, agrees to allow access during normal business hours to
all financial records to authorized RDA representatives and agrees to provide such assistance as
may be necessary to facilitate financial av it by such representatives when deemed necessary to
insure compliance with the provisions of this Agreement and/or the Covenant. Borrower shall
12
allow access during normal business hours to all other records, forms, files, and documents
which have been generated in performance of this Agreement and to those personnel as may be
designated by the RDA.
O. Project Marketing_Plan: In order to ensure that the Project is, and continues to,
provide the target affordable rental housing benefits to low and moderate income individuals and
families, Borrower shall submit, prior to commencement of any leasing activities for the
Premises/Project, for the RDA's review, comment, and approval, its initial "marketing plan" for
the Project which shall,without limitation, set forth and demonstrate Borrower's objectives and
strategies for leasing of the Project, in accordance with the stated purposes contained herein.
Following the RDA's initial approval of Borrower's marketing plan, Borrower shall, upon
reasonable periodic requests by the RDA,update and revise said plan (or prepare a new plan)in
order to continue to ensure that the Project objectives are being met.
P. RDA Review of Project Income. With one (1) year from the EfTective Date of this
Agreement(as said term is defined herein), the RDA and Borrower shall mutually agree upon the
(i)methodology and(ii)policies and procedures under which Borrower shall submit, for RDA's
review, comment, and written recommendation, the appropriation, allocation and/or expenditure
by Borrower of any excess net Project revenues remaining after Borrower's payment of annual
Project operating expenses (hereinafter, the "Project Income"). Said policies, at a minimum,
shall provide for Borrower's timely submittal of proposed Project Income, on an annual basis,in
order to allow adequate time for review and comment by the RDA in conjunction with its annual
fiscal year budget process.
ARTICLE 111.
A. Default. A default shall have occurred hereunder if:
(i) Borrower shall fail to duly observe on time any covenant,condition or agreement
of this Agreement or of any other instrument evidencing, securing or executed in
connection with the indebtedness secured hereby (hereinafter this Agreement, the Note,
the Covenant, and said other instruments may sometimes be collectively referred to as the
"Loan Documents") and such failure remains uncured for a period of thirty (30) days
after notice thereof shall have been given by the RDA to the Borrower (or for an
extended period approved by RDA, in its sole discretion, if such default stated in such
notice can be corrected, but not within such thirty (30) day period, and if the Borrower
commences such correction within such thirty(30) day period and thereafter diligently
pursues the same to completion within such extended period);or
(ii) Failure by Borrower to comply with the restrictive covenants set forth in Article II
(I.)and/or the Covenant attached and incorporated as Exhibit"C"hereto;or
(iii) Any warranties or representations made or agreed to be made in any of the Loan
Documents shall be breached by the Borrower or shall prove to be false or misleading in
any material respect; or
13
i
(iv) Any lien for labor or material or otherwise shall be filed against the Premises, and
such lien is not canceled,removed, transferred, or bonded off within thirty(30)days;or
(v) A levy shall be made under any process on, or a receiver be appointed for, the
Premises or any other property of the Borrower;or
(vi) The Borrower shall file a voluntary petition in bankruptcy,or any other petition or
answer seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation or similar relief for the Borrower under any present or future
federal,state or other statute,Iaw or regulation relating to bankruptcy,insolvency or other
relief for debtor;or
(vii) The Borrower shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of the Borrower or of all or any part of the Premises or of
any or all of the rents,revenues,issues, earnings,profits or income thereof; or
(viii) The Borrower shall make any general assignment for the benefit of creditors;or
(ix) In any legal proceeding the Borrower shall be adjudged to be insolvent or unable
to pay the Borrower's debts as they become due;or
(x) The Borrower shall do, or shall omit to do, any act, or any event shall occur, as a
result of which any obligation of the Borrower, not arising hereunder, may be declared
immediately due and payable by the holder thereof.
(xi) An Event of Default occurs under the terms of the documents executed in
connection with the Note.
B. Remedies on Default. If a default shall have occurred the RDA may take one or any
combination of the following remedial steps hereunder:
(i) by written notice to Borrower, declare the whole debt and/or other obligated secured
hereby with interest accrued thereon, at the option of the RDA, to become immediately
due and payable, time being of the essence of this Agreement and of the Note secured
hereby; and no omission on the part of the RDA to exercise such option when entitled so
to do shall be considered as a waiver of such right.
(ii) Right of RDA to Enter and Take Possession.
(a) If any default shall have occurred and be continuing beyond any
applicable grace period, the RDA may, upon written demand, exercise its rights
pursuant to Article II (A.)(ii)(b) herein and, in such event, the Borrower, upon
demand of the RDA, shall convey the Premises to the RDA (in the manner
provided in I (A)(ii)(b)) and shall forthwith surrender to the RDA the actual
possession of the Premises and, the RDA may enter and take possession of the
14
I
Premises, and may exclude the Borrower and the Borrower's agents and
employees wholly therefrom.
(b) For the purpose of carrying out the provisions of this paragraph, the
Borrower hereby constitutes and appoints the RDA the true and lawful attorney in
fact of the Borrower to do and perform, from time to time, any and all actions
necessary and incidental to such purpose and does, by these presents, ratify and
confirm any and all actions of said attorney in fact in the Premises.
(c) Borrower shall deliver to RDA, upon demand of the RDA, all agreements
for deed, contracts, leases, abstracts, title insurance policies, muniment of title,
surveys and other papers relating to the Premises.
(iii) enforce any remedy provided under the Agreement, the Note, and/or the Covenant,
including,without limitation,enforcing any liens granted thereunder,or
'(iv) take whatever action at law or in equity may appear necessary or desirable to collect
the amounts then due and there-after to become due, or to enforce performance and
observance of any obligation,agreement or covenant of the Borrower under this Agreement,
the Note,and/or the Covenant.
(v) Remedies Cumulative. No right,power or remedy conferred upon or reserved by
the RDA by this Agreement is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right,power and remedy given hereunder
or now or hereafter existing at law or in equity or by statute.
(vi) A emr ement to Pay Aggmeys' Fees and Expenses. In the event the Borrower should
default under any of the provisions of this Agreement and/or the Covenant and the RDA should
employ attorneys or incur other expenses for the collection of payments required hereunder or
the enforcement of performance or observance of any obligation or agreement on the part of the
Borrower herein contained the Borrower agrees that it will on demand therefore pay to the
RDA the reasonable fees of such attorneys and such other expenses so incurred by the RDA.
(vii) No Additional Waiver Implied by.One Waiver. In the event any agreement
contained in this Agreement should be.breached by either party and thereafter waived by the
other party,such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
ARTICLE IV,
A. Successors and Assigns Included in Parties, Whenever in this Agreement one of the
parties hereto is named or referred to, the heirs, legal representatives, successors and assigns of
such;parties shall be included and all covenants and agreements contained in this indenture by or
on behalf of the Borrower and by or on behalf of the RDA shall bind and inure to the benefit of
15
l
i
their respective heirs, legal representatives, successors and assigns, whether so expressed or not.
Provided, however, that the Borrower shall have no right to assign its obligations hereunder
without the prior written consent of the RDA, which consent shall be at the RDA's sole
judgment,if given at all,and discretion.
B. Headings. The headings of the sections, paragraphs and subdivisions of this Agreement
are for the convenience of reference only, are not to be considered a part hereof and shall not
limit or otherwise affect any of the terms hereof.
C. Invalid Provisions to Affect No Others. If fulfillment of any provision hereof or any
transaction related hereto or to the Note, at the time performance of such provisions shall be due,
shall involve transcending the limit of validity prescribed by law, then ipso facto,the obligation
to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein
contained operates or would prospectively operate to invalidate this Agreement in whole or in
part,then such clause or provision only shall be held for naught, as though not herein contained,
and the remainder of this Agreement shall remain operative and in ful] force and effect.
Notwithstanding any provision contained herein, the total liability of Borrower for payment of
interest, including service charges, penalties or any other fees pursuant to the Loan Documents;
shall not exceed the maximum amount of such interest permitted by applicable law to be
charged, and if any payments by Borrower include interest in excess of the maximum allowable
amount then said excess shall be applied to the reduction of the unpaid principal amount due
PP P p
P
pursuant hereto.
D. Number and Gender. Whenever the singular or plural number, masculine or feminine or
neuter gender is used herein, it shall equally include the other.
i
ARTICLE V.
A. Notice. Any notice or other communication required or permitted to be given hereunder
shall be sufficient if in writing and delivered vl person or sent by United States Certified Mail,
postage prepaid,to the parties being given such notice at the following addresses;
BORROWER: MBCDC:The Allen,LLC
945 Pennsylvania Avenue
Miami Beach,FL 33139
Attention:Roberto Datorre,President
With copies to: Miami Beach Community Development
Corporation,Inc.
945 Pennsylvania Avenue
Miami Beach,FL 33139
Attention:Roberto Datorre,President
RDA. MIAMI BEACH REDEVEOPMENT AGENCY
1700 Convention Center Drive
16
i
Miami Beach,Florida 33139
Attention: Executive Director
With copies to'. CITY OF MUMI BEACH
City Manager's Office
1700 Convention Center Drive
Miami Beach,Florida 33139
and
CITY OF MLALMI BEACH
Office of the City Attorney
1700 Convention Center Drive
Miami Beach,Florida 33139
Any patty may change said address by giving the other parties hereto notice of such change of
address, Notice given as hereinabove provided shall be deemed given on the date of its deposit
in the United States Mail and, unless sooner received, shall be.deemed received by the party to
whom it is addressed on the third calendar day following the date on which said notice is
deposited in the mail,or if an courier system is used,on the date of delivery of the notice.
ARTICLE V1.
INDEMNIFICATION
A. Borrower shall and hereby agrees to indemnify and save the Miami Beach Redevelopment
Agency(RDA),and the City of Miami Beach,Florida(City),respectively,harmless against and from
all claims by or on behalf of any person, firm, corporation or other legal entity arising from the
conduct or management of, or from any work or thing done on, the Premises and/or the Project;
including without limitation,(i)any condition of the Premises and/or the Project;(u)any breach or default on
the part of the Borrower in the performance of any of its obligations under this Agreement,the Note,
and/or the Covenant;(iii)any act or negligence of the Borrower or of any of its agents,contractors,savants,
employees or licensees;or(iv)any act or negligence of any assignee or lessee of the Borrower,or of any
agents,contractors,servants,employees or licensees of any assignee or lessee of the Bwrower.Boimwer shall
indemnify and save the RDA and/or the City harmless from any such claim arising as aforesaid, or in
connection with any action or proceeding brought thereon,and upon notice from the RDA and/or the City,
Bormwer shall&fendit in any such action or proceeding.
B. Notwithstanding the fact that it is the intention of the parties hereto that the RDA and/or the City
shall not incur any pecuniary liability by reason of the teams of this Agreement , the Note, and/or the
Covenant;nevertheless,if the RDA and/or the City should incur any such pecuniary liability,then in such
event the Borrower shall indemnify and hold the RDA and/or the City-harmless against all claims,
demands or causes of action whatsoever,by or on behalf of any person, firm or corporation or other legal
entity arising out of the same and all casts and expenses incurred ir,cormectiun with any such claim or in
17
connection with any action or proceeding brought thereon,and upon notice from the RDA and/or the
City,the Borrower shall defend the RDA andfor the City in any such action or procee&g.
C. Borrower agrees to indemnify the RDA and/or the City, against all claims arising out of the
acquisition,construction,improvement,renovation,rehabilitation,equipping,operation and/or management
of the Premises and/or the Project, and to pay or bond or discharge and indemnify and hold harmless the
RDA and/or the City, from and against (i)any lien or charge upon payments by the Boroower,to or for the
account of the RDA and/or the City hereunder,and(ii)any taxes,assessments, impositions and other
charges of any federal,State or other govemrnental agency or political body in respect of the Pternises and/or
the Project. If any such claim is asserted, or any such lien or charge upon payments or any such taxes,
asses.4nents, impositions or other charges are sought to be imposed, the RDA and/or the City will give
prompt notice to Borrower, and Borrower shall pay the same or bond and assume the defense
thereof,with full power to contest,litigate,compromise or settle the same in its sole discretion.
D. Borrower shall at all times protect and hold the RDA and/or the City,harmless against any
claims or liability resultirig from any loss or damage to property or any injury to or death of any person that
may be occasioned by any cause whatsoever pertaining to the Premises and/or the Project or the use
thereof, such indemnification to include reasonable expenses and attorneys'fees incurred by the RDA
and/or the City,in connection therewith.
E. For purposes of the Indemnification provisions contained in this Ardele VI, all references
to the RDA and/or the.City shall be deemed to include their respective commissioners,members,
officials,employees,agents,and contractors.
F. The indemnification provisions in this Article VI are intended to survive beyond
satisfaction, termination and/or. other expiration of this Agreement, the Note, and/or the
Covenant.
ARTICLE VYI.
A. Assignment of Rents and Leases. As further security for payment of principal, interest
and other amounts due the RDA now, or hereafter secured hereby, Borrower hereby transfers,
assigns and sets over unto RDA all leases,if any,now or hereafter entered into by Borrower with
respect to all or any part of the Premises, and all renewals, extensions, subleases or assignments
thereof,and all other written or oral occupancy agreements,by concession, license or otherwise,
together with all of the rents,income,receipts,revenues,issues and profits arising therefrom.
B. Security Agreerent. This instrument also creates a security interest in any and all
equipment and furnishings as are considered or determined to be personal property or fixtures,
together with all replacements, substitutions, addictions, products and proceeds thereof, in favor
of the RDA under the Florida Unifonn Commercial Code to secure payment of principal, interest
and other amounts due RDA now or hereafter secured hereby, and RDA. shall also have all the
rights and remedies of a secured party under the Florida Uniform Commercial Code and, without
limitation, Upon or in derogation of the rights and remedies created and acoordPd to the?iDA by
this Agreement, pursuant to the common law or any other laws of the State of Florida or any
18
i
other jurisdiction, it being understood that the rights and remedies of RDA under the Florida
Uniform Commercial Code shall be cumulative and in addition to all other rights and remedies
of RDA arising under the common law or any other laws of the State of Florida or any other
jurisdiction.
C. Choice of Law. This Agreement is to be construed in all respects and enforced according
to the laws of the State of Florida. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida, both substantive and remedial, without regard
to principles of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Miami-Dade County, Florida, if in State court, and the U.S. District Court,
Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT,
THE RDA AND BORROWER E('RESSLY WAfVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF,THIS AGREEMENT.
D. Binding_Effect. This Agreement shall be binding upon and inure to the benefit-of the
Borrower and RDA hereto,and their respective heirs,successors and assigns.
E, Term of Agreement. This Agreement shall commence upon execution by the parties
hereto (which date, hereinafter the "Effective Date", shall be the date written on page 1 of the
Agreement), and shall continue in full force and effect for a term of thirty (30)years from such
Effective Date, or from the last date of the term of the Affordability Period, as said date is
defined in Article II(I.)of the Agreement and the Covenant,whichever is pater,
i~:WtolA0UR%AGREEMN7%MBCDC(The London,LLC Closing)- Loan Agreement(Fina14-27-07).doc
(REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
19
i
IN WITNESS WHEREOF, Borrower has caused this Agreement to be executed on the date
first above written,
WITNESSES: BORROWER:
MBCDC: The London, LLC, a Florida limited
liability company
By: Miami Beach Community Development
Corporation, A Florida non-profit corporation, its
✓ "'� __ sole member
Print Name,
` By: �
_ Nam : o erto Datorrc
Print Name: (Sh n-o Title: President
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing Agreement and Security Agreement was acknowledged before me this
�C) day of , 2007, by Roberto Datorre, as President of Miami Beach Community
Development Corporation, a Florida non-profit corporation, the sole member of MBCDC: The
London,LLC, a Florida limited liability company,on behalf of the corporatio . He is personally
known to me or has produced Florida Driver's License No. as
identification.
Name:
Notary Public
State of Florida at Large
• i commission
\� Q4•\4rcs .• ••dO My expires:
2
• r
We
`1 1 4 f I t I I I����11�O N
20
i
E BIT"A"
NOTE
21
I
t
PROMISSORY NOTJE:
i
$403,852.50 April 30, 2007
Miami Beach,Florida
FOR VALUE RECEIVED the undersigned,NBCDC: THE LONDON LLC,a Florida limited
liability company ("Maker"), promises to pay to the order of the MIAAH BEACH
REIDF,VELOPMENT AGENCY,a public body corporate and politic,together with any other holder of
this Note("the"RDA"and/or Holder"), at 1700 Convention Center Drive,Miami Beach, Florida 33139,
Attention:Executive Director or such other place as Holder may from time to time designate in writing,
the principal sum of FOUR MILLION SIX HUNDRED THREE THOUSAND EIGHT HUNDRED
FIFTY TWO DOLLARS AND .50/100 ($4,6039852.50) (the "Principal Amount"), to be paid in lawful
money of the United States of America in accordance with the terms of this Note.
This Note is secured by a Loan Agreement of even date herewith between Maker and Holder(the.
"Loam Agreement")encumbering that certain real property located in Miami-Dade County, Florida, 1965
Washington Avenue and 1975 Washington Avenue, Miami Beach, Florida, attached and described as
Exhibit "A" hereto (the "Property"). The foregoing and all other exhibits, agreements, instruments and
documents delivered in connection with the Loan Agreement and with this Note are collectively referred
to as the"Loan Documents"(as said term is also defined in the Loan Agreement).
This Note shall not bear interest. Notwithstanding anything to the contrary herein, the entire
Principal Amount shall be due and payable as follows:At the end of the Term of the Loan Agreement,or
the conclusion of the Affordability Period(as said term is defined in the Loan Agreement)(hereinafter the
"Maturity Date"}, whichever is later, Maker shall immediately, upon written demand from the Holder,
convey good and marketable fee simple title to the Property to the RDA, by execution and delivery of a
Special Warranty Deed (subject to no liens and encumbrances). Borrower shall be responsible for the
cost of documentary stamps and/or other tax(es) imposed as a result of the conveyance contemplated by .
this subsection.
In the event of a default by the Maker under this Note;the Holder's sole remedy shall be limited
to exercising its rights under the Loan Documents.
This Note has been executed and delivered in, and is to be governed by and construed under the
laws of, the State of Florida, as amended,except as modified by the laws and regulations of the United
States of America.
The "Default Interest Rate" and, in the event no specific Maximum Rate is applicable, the
Maximum Rate shall be twelve percent(12%)per annum.
Holder shall have the right,at its sole option and discretion, to declare the total unpaid balance
and/or obligation hereof to be immediately due and payable in advance of the Maturity Date or require
Maker to.convey the Property to Holder,in the manner set forth above and in the Loan Documents, upon
the failure of Maker to comply with the terms of the Loan Documents(including without limitation, that
certain Restrictive Covenant attached and incorporated thereto); or upon the occurrence of an event of
default pursuant to any one of the Loan Documents now or hereafter evidencing,securing or guaranteeing
payment of the indebtedness evidenced by this Note. Exercise of this right shall be without notice to
Maker or to any other person liable for payment of this Note,notice of such exercise is expressly waived.
I
Any payment and/or obligation under this Note not paid and/or satisfied 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.
Time is of the essence. In the event that this Note is collected by law or through attorneys at law,
or under their advice therefrom, Maker agrees, to pay all costs of collection, including reasonable
attorneys' fees, whether or not suit is brought, and whether incurred in connection with collection, trial,
appeal,bankruptcy or other creditors proceedings or otherwise.
Acceptance of partial payments or payments marked "payment in full" or "in satisfaction" or
words to similar effect shall not affect the duty of Maker to pay all obligations due under this Note, and
shall not affect the right of Holder to pursue all remedies available to it under the Loan Documents.
The remedies of Folder 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
therefore shall arise. No action or omission of Holder, 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 to the extent specifically recited in a written document executed.by
Holder. A waiver or release with reference to any one event shall not be construed as continuing or as
constituting a cause of dealing, 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 the Maker or the Holder 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 hereof'shall include any endorser,guarantor,surety or
other person now or hereafter primarily or secondarily liable for the payment of this Note, whether by
signing this or another instrument.
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.
Maker and any other person liable for the payment hereof 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; and (b)
consents that Holder may, from 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 hereof, without in any way modifying, altering, releasing, affecting or limiting their
respective liability or the lien of any security instrument.
BY EXECUTING THIS NOTE, MAKER KNOWINGLY, VOLUNTARILY AND
IN'T'ENTIONALLY 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, AFFMMATIVE 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, MODIFIC:TION OR EXTENSION OF ANY OF THE
FOREGOING OR ANY FUTURE ADVANCE THEREUNDER. THIS PROVISION IS A MATERIAL
i
INDUCEMENT FOR HOLDER'S EXTENDING CREDIT TO A BORROWER AND NO WAIVER OR
LIMITATION OF HOLDER'S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS IN
WRITING AND MANUALLY SIGNED ON HOLDER'S BEHALF.
Maker acknowledges that the above paragraph has been expressly bargained for by Holder as part
of the transaction with Maker and that, but for Maker's agreement to such paragraph, Holder would not
have loaned the Principal Amount to the Maker pursuant to the terms of this Note.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID ON THIS NOTE
AND EVIDENCE OF SUCH PAYMENT APPEARS ON THE LOAN DOCUMENTS SECURING
THIS NOTE.
IN WITNESS WHEREOF,Maker has executed this Note on the day and year first above written.
MBCDC: THE LONDON LLC, a Florida limited
liability company
By: Miami Beach Community Development
Corporation, A Florida nonprofit corporation, its
sole member
Witnesses: .
Nam co'atone
ign9ft! : Title: President
K4 Ito
Print Name
Signature '
SIR &Dct4 4
Print Name
F:Utto\AGUR\AORF-EMN7WBCDC(The London,LLC Closing)-Note(Final 4-21-07).doe
I
I
i
EXHIBIT"A"
I
LEGAL DESCRIPTION
The Premises shall be defined as the real property (the Land) located at 1965 Washington Avenue and
1 975 Washington Avenue,Miami Beach,Miami-Dade County,Florida,and Iegally described as follows:
That portion of Lot 1,Block H of Resubdivision of Blocks G,H,J and K and Triangular
Tract lying South of Block K and West of BIock t3, 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: Continence at the Northeast corner of Lot I, 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 Improverent Company(recorded in Plat Book
5 on 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; 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 1 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 boundary 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 I 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, H, 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,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, more
particularly described as follows,to wit:
Commence at the Northeasterly comer of Lot 1,Block H of a Resubdivision of Blocks G,
Hj J, K.and Triangular Tract lying South of Block K_and West of Block r,together with
Cardinal Street(now vacated)according to the Amended Map of Ocean From Property of
i
,
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 Iine of said Lot 1 at a distance of
69.32 feet Northerly from the Southwesterly corner of said Lot 1, measured along the
Westerly boundary line of said Lot l;thence Northerly along the Westerly boundary line
of said Lot 1 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 11 I
degrees 56 minutes 30 seconds for an are 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 of
114.09 feet to the point of Beginning of the parcel of land herein described.
and shall include the Land thereof together with any buildings (including footings and foundations),
equipment, fixtures, and other improvements and appurtenances of every kind and description now or
hereafter executed, constructed or placed upon the Land and any and all alterations and replacements
thereof,additions thereto and substitutions therefor.
-if milli 1119911111 11111 1111?11111 R111 1l
` k -17 R 8255�1 F s 10 d 1 (6 aa)
p RECORDED OVO0 12007 15:04:08
U, _J This instrument prepared by: HARVEY RUVINr CLERK OF COURT
,rte Raul J.Aguila IIIAMI--DADE COUNTY? FLORIDA
Office of the City Attorney
i n City of Miami Beach
1700 Convention Center Drive
., Miami Beach,Florida 33139 (Space resci-nd for Clerk of Court)
•+a- f2i
DECLARATION OF RESTRICTIVE COVENANTS
'oti
This Declaration ofRestrictive Covenants(hereinafter the"Covenant'%is mzde this day of Oav 2007
byMBCDC: The London LLC,a Florida limited liability company whose address is 945 Pennsylvania Avenue,Miami
ruq= Beach,Florida,33139(hereinafter the"Owner").
Au-rcaa
era rn
nn
-::,& RECITALS:
C]c—t CJ
�w WHEREAS,Owner is a Florida limited liability company-whose sale member is Miami Beach Community
a ' Development Corporation,Inc.,a Florida not-for-profit housing corporation which is also the City of Miami Beach,
Lro C-4
Florida's designated Community Housing Development Organization(CHDO);and
+.Q H
r W]HREAS, Owner is undertaking a project to acquire and renovatehehabilitate that certain historically
designated real property located at 1965 Washington Avenue and 1975 Washington Avenue,Miami Beach,Florida(and
0� hereinafter referred to as the"Premises",as defined herein and in Exhibit"A"attached and incorporated hereto)for the
w z ptupose of providing affordable rental housing for low to moderate income individuals and families(the"Project");and
WHEREAS, the Premises and Project are/is located within the City Center/Historic Convention Village
Redevelopment Area,a community redevelopment area in the City of Miami Beach,Florida,designated and created
pursuant to Sections 163.330—163.463,Florida Statutes(the"Community Redevelopment Act of 1969"orthe"Act")
(hereinafter referred to as the"'City Center RDA");and
WHEREAS,the Project is consistent with the City Centeri istoric Convention Village Redevelopment and
R.evitakation Area Plan,as adopted by the City of Miami Beach Cornmission and the Miami Beach Redevelopmcnt
Agency,respectively,and as approved by the Miami-Dade County Board of County Commissioners(hereinafter referred
to as the`aodevelopment Plan");and
WHEREAS,the Project will promote the Redevelopment Plan objectives by(i)restoring and preserving
historically contributing properties within the City Center RDA;and(ii)creating new affordable housing opportunities
within said RDA for low and moderate income individuals and families;and
WHEREAS,pursuant to Miami Beach Redevelopment Agency Resolution No.540-2007,passed and adopted
on January I7,2007,and Miami Beach Redevelopment Agency Resolution No.545-2007,passed and adopted onMarch
14,2007,and subject further to the terms and conditions hereinafter contained,the RDA has agreed to loan Owner the
funds for Owner's acquisition of the Premises.
WHEREAS,Owner and the Miami Beach Redevelopment Agency,a public body corporate and politic(the
"RDA")bave entered into a Loan Agreerent,dated April 30,2007(the"Loan Agreement'),wh ch principal amount was
utilized by Owner in the purchase of the Premises to accomplish the stated purposes of the Project;and
WHEREAS,the RDA desires,and Owner hereby acknowledges and agrees,to impose certain provisions of the
Loan Agreement as covenants and restrictions upon the Premises and any improvements located or hereinafter to be mfide
thereon.
NOW,THEREFORE,Owner voluntarily covenants and agrees that the following Premises located in the City
of Miami Beach,Miami-Dade County,Florida,and legally described in Exhibit"A"attached and incorporated hereto
(hcrei-tafter the"Premises"),shall be subject to the following restrictions that are intended and shall be deemed.toy
CIL,!
CLERK r
NOTE: This Declaration of Restrictive Covenants is being re—recorded *
eliminate the contents of the third page being deleted herein. d� f'� ,
K.,
iri aow wi ran C4 f
COul
1
i
I
covenants running with the land and Binding upon Owner,and its successors in interest and assigns,as follows.
1. The findings set forth in the Recitals of this Covenant are hereby adapted by reference and incorporated
herein as if fully set forth in this Section.
2. Miami Beach Redevelopmeait Agency(RDA)funds,in the amount of Four Million Six Hundred Three
Thousand Eight Hundred Fifty Two Dollars and.50/104($4,b03,852.50)(the"Principal Amount"),were utilized in the
purchase of the Freda es,in order to provide affordable housing for tenants in accordance with and consistent with the
powers granted to the RDA pursuant to the Act;and the rents charged and the tenants thereof shall qualifyunder the rules
and regulations promulgated by the United States Department of Housing and Urban Development, as same may be
amended from time to time. In consideration of these funds,the Premisas shall be,subject to the following restrictions for
a period of thirty(30)years(Affordability Period),which period shall commence upon the date of issuance by the City of
Miami Beach Building Department of a Final Cert'if'icate of Completion fox the renovation and rehahilitation of the
Premises for the stated use and purposes contemplated by the Project.
3. Restrictive Covenants. Owner shall be subject to the following covenants and restrictions-
(i) Owner must use the Premises as an affordable rental property for a thirty(30)year period,
commencing from the date of issuance by the City of Miami Beach Building Department of a Final
Certificate of Completion for the rehabilitation/renovation of the Premisea(the "Affordability
Period',arid the rents charged abd the tenants thereof must qualify under the rules and regulations
promulgated by the United States Department offalousing and Urban Development at CFR Part 92,as
sanie tnay be amended froin time to time, Terra defined in 24 CFR Part 92,and any amendments
thereto,not otherwise defined in this Covenant,shall have the meaning set forth therein. In order to
further ensure the enforcement of this Section.(3),Owner hereby recognizes,agrees,authorizes,and
covenants that the Premises shall not be sold,transfarred,disposed of,or otherwise conveyed,except
to the RDA,as provided herein,
(ii) If at any time during the Affordability Period, the Premises are no longer used as an
affordable rental property by the Owner,then the RDA,at its sole option and discretion,may elect one
of the following options:
(a) Require Owner to re-pay the Principal Amount,in full,together with all Interest
thereon,and any and all other amounts as may then be or become due pursuant to the Loan
Agreement;or
(b) Require Owner,automatically and without further action required by the RDA,to
promptly,on written demand,execute and deliver a Special Warrarty Deed(subject to no
liens or encumbrances created by through or under Owner),conveying good and nwketable
fee simple title in the Premises to the RDA., _Owner shall be responsible for the cost of
documentary stamps and/or other tsx(os)unposed as a result of the conveyance contemplated
by this subsection(ii)(b).
(iii) Upon the conclusion of the Affordability Period, the RDA may, at its sole option and
discretion,elect one of the following options:
(a) Extend the Loan Agreement and the Affordability Period for an additional term,
with such term to be determined in the sole judgment and discretion of the RDA;or
(b) Require Owner,automatically and without flirther action required by the RDA,to
promptly,on written demand,execute and deliver a Special Warranty Deed(subject to no
liens or encumbrances created by through or under Owner),conveying good and marketable
fee simple title in the Premises to the RDA. Owner shall be responsible for the cost of
2
i
]. The findings set forth in the Recitals of this Covenant are hereby adopted by reference and' orporated
herein as if fully set forth in this Section.
2. Miami Beach Redevelopment Agency(RDA)funds,in the amount of Dive Milli Six Hundred
Ninety Two Thousand Four Hu.ndredDollars and.a0/100 ($3,692,400.00)(the"Principal Amount', re utilized in the
purchase of the Premises,in order to provide affordable housing for tenants in accordance with and onsistent with the
powers granted to the RDA pursuant to the A.ct,and the rents charged and the tenants thereof shall alify under the rules
and regulations promulgated by the United States Department of Housing and Urban Develop ent,as same may be.
amended from time to time. In consideration of these funds,the Premises shall be subject to the Vowing restrictions for
a period of thirty(30)years(Affordability Period),which period shall commence upon the da ofissuance by the City of
Miami Beach Building,Department of a.Final Certificate of Completion for the renovatia and rehabilitation of the
Premises for the stated use and purposes contemplated by the Project.
3. Restrictive Covenants. Owner shall be subject to the following cov nants and restrictions:
(i) Owner must.use the Premises as an affordable,rental p arty for a thirty(30)year period,
commencing from the date of issuance by the City of Miami Be ch Building Department of a Final
Certificate of Completion for the rehabilitationfrenovation f the Premises (the "Affordability
Period"),and the rents charged and the tenants thereof mus ualify under the rules and regulations
promulgated by the United States Department of Housing a Urban Dovelopment at CFR Part 92,as
same maybe amended from time to time, Terms define in 24 CFR Part 92,and any amendments
thereto,not otherwise defined is this Covenant,shall h e the meaning set forth therein. In order to
Ruther ensure the enforcement of this Section(3)3 0 or hereby recugnizes,agrees,authorizes,and
covenants that the Premises shall not be.sold,transfe ed,disposed of,or otherwise conveyed,except
to the RDA,as provided herein.
(ii) If at any time during the Affordab'' Period, the Premises are no longer used as an
affordable rental property by the Owner,then t e RDA,at its sole option and discretion,may elect one
of the following options;
(a) Require Owner to re-p y the Principal Amount,in full, together with all interest
thereon,and any and all other ouiga.os.may then be or become due pursuant to the Loan
Agreement;or
(b) Require Owner, utotnatical] and-without further action required by the RDA to
promptly,on written de d,execute and deliver a Special Warranty Deed(subject to no
liens or encumbrances reated by through or under Owner),conveying good and marketable
fee simple title in Premises to the RDA. Owner shall be responsible for the cost of
I? p
documentary stam and/or other tax(es)imposed as a result of the conveyance contemplated
by Us subsectio ii)(b).
(iii) Upon the co usion of the Affordability Period, the RDA may, at its sole option and
discretion,elect one the following options;
(a) xtend the Loan Agreement and the Affordability Period for an additional tern,
with,su term to be determined in the sole judgment and discretion of the RDA;or
(b) Require Owner,automatically and without fiWbcr action required by the RDA,to
pro tly,on written demand,execute and deliver a Special Warranty Deed(subject to no
li SOT encumbrances created by through or under Owner),conveying good and marketable
2
NOTE: All of the above contents is deleted in its entirety.
i
I
I
documentary stamps and/or other tax(es)imposed as aresultofthe conveyance contemplated
by this subsection(fi)(b).
(iv) The Principal Amount,together with all interest thereon,and any and all other arriolints which
may become due and payable to the RDA under the Loan Agreement, shall remain a Imn superior m
dignity to all other liens,titles,claims,Agreements,and/or other encumbrances,until satisfied in the
manner provided in this Covenant,or in the Lour.Agreenwnt,
4. IT IS SPECIFICALLY ACKNOWLEDGED BY THE PARTIES HERETO THAT THE
PREMISES ARE TO BE USED,OPERATED,AND MAINTAINED ONLY AS AN AFFORDABLE HOUSING
RESIDE, TIAL,RENTAL PROPERTY,AND FOR NO OTHER PURPOSE. USE OF-THE PREMISES FOR
PURPOSES OTHER THAN AS AN AFFORDABLE HOUSING RESIDENTIAL RENTAL PROPERTY WALL
BE DEEMED A DEFAULT UNDER SECTION 3 HEREOF.
S. The foregoing covenants and restrictions shall be considered and construed as covenants and
restrictions running with the land,and the same shall bind all persons claiming ownership cf all,or any portion of,the
Premises,The Owner hereby acknowledges and agrees that the RDA and the City of Miami Beach,Florida("City"),
respectively,are intended to be the sole beneficiaries of this Covenant,and nothing in this Covenant sball confer upon
any person or entity,other than the RDA and/or the City,any rights or remedies under or by reason of this Covenant.
b. The Owner shall not release or amend this Covenant without the prior written consent of the RDA,
7. Invalidation of any of tbeso covenants by a court of competent jurisdiction shall in no way affect any of
the other covenants,which shall remain in full force and effect.
8. This Covenant shall be recorded in the Public Records of Miami-Dada County,Florida,at the cost of
the Owner.
9. It is understood and agreed that any official of the Miami BeachRedevelopment Agency(RDA)may
have the right at any time during narmal working hours of entering'and investigating the use of the Premises,to determine
whether the conditions of this Covenant and the requirements set forth herein,are befog complied with,
10. An action to enforce the teens and conditions of this Covenant may be brought by the RDA and/or the
City and may be by action at law.or in equity against any party or person violating or attempting to violate any provision
of this Covenant,either to restrain violations or to recover damages. The prevailing party in the action o:suit shall be
entitled to recovercosts and reasonable attorneys'fees,at all levels of trial and appeal, This enforcement provision shall
be in addition to any other remedies available under the law,
11, . This Covenant is to be construed in all respects and enforced according to the laws of the State of
Florida. This Covenant shall be governed by,and construed in accordance with,the laws of the State of Florida,both
substantive and remedial,without regard to tho principles of conflict of laws. The exclusive venue for any litigation
arising out of this Covenant shall be Miami-Dade County,Florida,if in State court,on the U.S.District Court,Southern
District of Florida,if in federal court.
F:lal1o\AGUR\AGR6EMN'[WBCDC(The London,LLC Closing)-Rearletive Covenant(Fina14-27-07).doc
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK)
3
i
IN WITI ESS WHE4EOF, the Owner has hereunto caused these presents to be signed and,attested by the
I
respective witnesses on this 90 day of C 2007.
WITNESSES: OWNER:
MBCDC: The London,LLC,a Florida limited liability company
By: Miami Beach Community Development Corporation, A
Florida non-profit corporation,its sole member
Print Name: 0 -.S'
.6-VXO Name: Roberto Datorre
]Print Dame: �X\C r''- aCi`�� Title: President
STATE OF FLORIDA )
COUNTY OF MUM-DADE )
The foregoing Restrictive Covenant was acknowledged before me this day of 9"^" , 2007,by
Roberto Datorre,as President of Miami Beach Community Development Corporation,a Florida non-profit corporation,
the sole member of 03 MC: The London,LLC,a Florida limited liability company,on behalf ofthe corporation.He is
personally known to me or has produced Florida Drivers License No. -� as identification.
&A CA�-
Name:
111111111F� Note Public
Notary
State of Florida at Large
••�1A�BS��;►;oe� My commission expires;
Agee
4
. i
EXHIBIT"A"
LEGAL DESCRIPTION
i
I
The Premises shall be defined as the real property(the Land)located at 1965 Washington Avenue and 1975 Washington
Avenue,Miami Beach,Niianu-Dade County,Florida,and legally described as follows:
That portion of Lot 1,Block H of Resubdivision of Blocks G,H,J and K and Triangular Tract lying.
South of Block I,and.West of Block G,together with Cardina l Street(now vacated),according to the
Amended Map of Ocean Front Property,of the Miami Beach Improvement Company(said mop 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 ofthe Public Records of Dade County,Florida,
more particularly described as follows,to wit: Commence at the Northeast corner ofLot 1,Block H of
areaubrkivision 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 Oceari Front
Property of Miami Beach Improvement Company(recorded in Plat Book 5 on Pages 7 and 8 of the
Public Records ofDade County,Florida)according to the Plat thereof,recorded in Plat Book 6,Page
102 of the Public Records of Dade County, Florida; thence Norihwesterly along the Northerly
,boundary lute of said Lot 1,for a distance of 120 feet to an iron pipe;thence Southwesterly parallel to
the Easterly boundary line o€'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, nmasured along the
prolongation Southwesterly of the last preceding course and said iron pipe is the point of beginning of
the parcel ofland herein described;thence continue Southwesterly parallel with the Easterlybouadary
line of said Lot I for a distance of44 feet to an iron pipe located 20 feet Northerly from the Southerly
line ofsaid Lot 1 mea3ured along the prolongation Southwesterly ofthe lastpreceding 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 on iron pipe located on the Westerly boundary line ofsaid Lot
1 at a distance of 21.53 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 1
for a distance of 47.79 feet to an iron pipe;thence Southeasterly parallel with the Northerly boundary
Env.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 Begh ing of the parcel of land herein described.
AND
That portion of Lot 1,Block I1,of a Resubdivision of Blocks G,H,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 ofthe Miami Beach improvement Company(said map being
recorded in Plat Hook 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,
more particularly described as follows,to wh:
Commence at the Northeasterly corner of Lot 1,Block H of a Resubdivision ofBlocks G,H,J,K and
Triangular Tract lying South of 131ock K and West of Block 0,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 bade
County,Florida;thmeo Northwesterly along the Northerly boundary line of said Lot l for a distance
of 120 feet to an iron pipe marking the Point of Bcginn.ing of the parcel of land herein described;
thence Southwesterly parallel to the Easterly boundary line ofsaid Lot 1 for a distance of 61.19 feet to
a point which is 64 feet Northerly from the Southerly boundary line ofsaid Lot l measured along the
Prolongation Southwestorly of the laet pa eceding course; thence Northwesterly parallel Mth the
5
I
r
. 1 ST PAGE
� Y
Northerly boundary of said Lot 1 for a distance of 111.64 feet to an iron pipe located on the Westerly
boundary line ofsaid Lot 1 at a distance of 64.32 feetNortherly from the Southwesterly corner of said
Lot 1,measured along the Westerly boundary line of said Lot 1;thence Northerly along the Westerly
!� boundary('hie of said Lot 1 for a distance of 43.76 feet to the beginning ofa tangential circular curve;
thence Northerly and Eaaterly along the Northwesterly boundary line of said Lot I and along a
ION tangential circular curve having a radius of 15 feet through a central angle of 11 I degrees 56 minutes
'' 30 seconds for an arc distance of 29.31 feet to the end of said curve;thence Southeasterly along the
e
Northerly boundary Iine of said Lot I for it distance of 1 14.09 feet to the point of Beginning of the
parcel of lamd herein described.
and shall Include Ilia Land thereof together with any buildings(including footings and foundations,equipment;fixtures,
0 Co and other improvements and appurtenances of every kind and description now or hereafter executed,constructed or
0 47, placed upon the Land and any and all alterations and replacements thereof,additions thereto and substitutions therefor,
Srq t;or-F�C),FRlDA
!HV?E,8 y CERT/Fy • +Ot�M�OF c
toil this;; DA Dc" ''9;t�7-•'
or�grno f tiled 's a lwe Co Y oI fhQ •�-� ;�
n thrs olfica on
����� da o• fit,,. �Of i Ao 20 /V r
rj r,
"d 01'ffcla'
LU, G7r,.ld ix c cf£�ni?SY a Counf 1t Y Cou r
6