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Home Program Agreement do(}3 - 2S'I:33 HOME PROGRAM AGREEMENT THIS AGREEMENT, entered into this Ja""'aay of l>=rauMtL-. 2003, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (City), and CARRFOUR SUPPORTIVE HOUSING, a Florida Not-for-Profit Corporation, with offices located at 155 South Miami Avenue, Suite 1150, Florida (hereinafter referred to as Owner). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the U.S. Department of Housing and Urban Development (RUD) as a Participating Jurisdiction for the receipt of funds through the HOME Investment Partnerships (HOME) Program under 24 CFR 92; and WHEREAS, the City has entered into an agreement with RUD for the purpose of conducting an affordable housing program with federal financial assistance under the HOME Program; and WHEREAS, on February 3, 2003, the City issued a HOME Program Notice of Funding Availability (NOF A) in the amount of$673,800 from fiscal year 2002/03 for the acquisition and/or rehabilitation of multi-family rental buildings or scattered sites for the purpose of providing affordable rental housing and Carrfour Supportive Housing submitted an application for HOME Program funds to be used towards the reh.abilitation ofthe property located at 530 Meridian Avenue, Miami Beach; and WHEREAS, on May 30,2003, the Loan Review Committee recommended $309,469 HOME Program funds from the HOME Program NOF A for fiscal year 2002/2003 for the rehabilitation of the building at 530 Meridian Avenue to provide 55 HOME Program units for transitional housing for formerly homeless individuals participating in the Miami-Dade County Continuum of Care for a minimum period of five years; and WHEREAS, on November 25,2003, during the meeting of the Neighborhoods Committee, Carrfour agreed to lead a collaborative effort with the City to establish a crime watch in the vicinity of530 Meridian Avenue; and WHEREAS, on November 25,2003, during the meeting of the Neighborhoods Committee, Carrfour committed to develop and detail a procedure providing preference to formerly Miami Beach homeless individuals and families; and WHEREAS, on November 25, 2003, the Neighborhoods Committee reviewed and forwarded to the City Commission for approval the request from Carrfour for funding in the amount of $309,469 in HOME Program funds towards the rehabilitation of the building located at 530 Meridian Avenue; and WHEREAS, Owner warrants and represents that it possesses the legal authority to enter into this Agreement, by way of a resolution that has been duly adopted as an official act ofthe Board of 1 Directors, authorizing the execution ofthis Agreement, including all understandings and assurances contained herein, and authorizing the person( s) identified as their official representative( s) to execute this Agreement and any other documents which may be necessary to implement this project; and WHEREAS, Owner intends to create a not-for-profit entity which will assume all interest and title to the property located at 530 Meridian Avenue and be a successor in interest to Carrfour Supportive Housing pursuant to this Agreement; and WHEREAS, accordingly, the City herein agrees and consents to a one-time only assignment of this Agreement to Sunsouth Place, Inc.; and NOW, THEREFORE, in consideration ofthe mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings: (a) HOME Program: HOME Investment Partnerships Program, as set forth in 24 CFR Part 92, as amended. (b) HUD: United States Department of Housing & Urban Development or any successor agency. (c) Funds: HOME Program funds. (d) CHDO: Community Housing Development Organization as defined in the HOME Investment Partnerships Program, 24 CFR, Part 92, as amended, and CPD Notice 94-02. (e) Terms defined in the HOME Investment Partnerships Program Final Rule, 24 CFR Part 92, and any amendments thereto, not otherwise defined in this Agreement, shall have the meaning set forth in said Rule. (e) HOME Assisted Units: A term that refers to the number of units in a project assisted with HOME Program funds for which rent, occupancy, and resale/recapture restrictions apply. ARTICLE II ALLOCATION OF HOME FUNDS In consideration ofthe performance by Owner of its role and responsibilities set forth in this Agreement, the City agrees to provide a conditional grant of HOME Program funds to Owner in the amount of Three Hundred Nine Thousand Four Hundred Sixty-Nine Dollars ($309,469) (Funds) from fiscal year fiscal year 2002/03. 2 The Funds will be utilized by Owner for rehabilitation of the building located at 530 Meridian Avenue, Miami Beach, that will provide 55 rental units as transitional housing for formerly homeless individual participating in the Miami-Dade County Continuum of Care. Owner will rehabilitate the building as more fully described in the Scope of Services (Exhibit A) and Budget (Exhibit B). Owner will maintain required HOME Program rent and occupancy limitations for a minimum period of 5 years (the Affordability Period) commencing with the issuance of the final approved Certificate of Completion by the City's Building Department following the planned rehabilitation. Owner will provide preference to formerly Miami Beach homeless individuals as described in the Sunsouth Intake Plan (Exhibit D). ARTICLE III SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE HOME PROGRAM Owner expressly agrees to the following terms and conditions in conformity with the HOME Program Final Rule. (a) Repayment of Funds. The Funds (which definition shall include the allocation of any additional funds that may be provided by the City in the future as a result of an amendment or modification ofthis Agreement) shall be repaid in their entirety ifthe HOME units do not meet the affordability requirements for the required time period in accordance with the terms of this Agreement and the HOME Program Regulations. Any violation ofthese requirements may, at the City's option, result in the entire amount of the Funds, as indicated in Article II or as subsequently amended or modified, being returned and/or otherwise repaid by Owner to the City, and same shall be considered and treated as an event of default resulting in the City's termination for cause of the Agreement, pursuant to Article XXVI herein. The City reserves the right to review the affordability requirements, as set forth herein. Concurrent with its execution of this Agreement and/or any projects pursuant to this Agreement, Owner shall execute a Mortgage and Note in the format provided by the City, incorporating the terms ofthis section, which shall be recorded in the Official Records of Miami-Dade County Florida. The affordability requirements apply without regard to the term of any loan or mortgage or the transfer of ownership. They must be imposed by deed restrictions, covenants running with the land, or other mechanisms approved by HUD, except that the affordability restrictions may terminate upon foreclosure or transfer in lieu of foreclosure. (b) Rent Limitation. HOME assisted rental units will bear rents in accordance with 24 CFR 92.252, as published from time-to-time by HUD. The City shall provide a HOME Program rent schedule annually to Owner. (c) Rent schedule and utility allowances. In accordance with 24 CFR 92.252(b )( c) and (d), the City must review and approve rents and the monthly utility allowances proposed by the owner prior to initial occupancy. Owner must re-examine and document the income of each tenant living in the HOME assisted units annually. The maximum monthly rent must be recalculated by Owner and reviewed and approved by the City annually. Any increase in rents for HOME-assisted units is subject to the provisions of outstanding leases and, in any event, the owner must provide the tenant with not less than 30 days written notice before implementing any rent increase. 3 (d) Owner shall comply with all applicable federal regulations as they may apply to restrictions and limitations regarding real property under Owner's control acquired or improved in whole or in part with HOME funds. (e) The Project must provide safe, sanitary, and decent residential housing for income eligible tenants (i.e., persons whose income is within specific income levels set forth by HUD). (t) Income Targeting. Owner shall maintain written documentation that conclusively demonstrates that the project assisted in whole or in part with HOME funds provides benefit to very- low income households (annual income does not exceed 50 percent ofthe median family income for the area) and low-income households (annual income does not exceed 80 percent of the median income for the area) as required. (g) Records: Owner shall maintain all records sufficient to meet the requirements of 24 CFR 92.508(a)(2) program records, 92.508(a)(3) project records, 92.508(a)(5) other Federal requirements records, 92.508( a)( 6) program administration records. All records required herein shall be retained and made accessible as provided in 24 CFR 92.508 (c) and (d) and Florida Statutes Chapter 119. (i) Property Standards. For the duration of this Agreement and any amendments hereto, housing that is assisted with HOME funds, must meet all applicable local codes, rehabilitation standards, ordinances and zoning ordinances at the time of project completion. The City shall conduct annual or bi-annual, as required, on-site inspections ofthe project to assure compliance with housing codes. The City may select a sample of the units in the project to satisfy the inspection requirements. G) Environmental Review. For the Project described in the Scope of Services (Exhibit A), attached hereto, Owner shall obtain a Phase I, Environmental Assessment, and agree to mitigate any hazardous conditions identified therein. (k) Affirmative Marketing. In order to provide persons in the housing market area with a range of housing choice, regardless of race, color, religion, sex, handicap, familial status, or national origin, Owner agrees to administer the HOME Program in a manner that will affirmatively further the purposes of Title VI of the Civil Rights Act of 1964 at 24 CFR I, the Fair Housing Act at 24 CFR 100 and Executive Order 11063 at 24 CFR 107. Owner will submit its written procedures that implement these requirements for review and approval by the City. (1) Tenant and Participant Protection. Owner agrees that the lease to be executed with the tenants of rental housing will be in accordance with 24 CFR Part 92.253. Furthermore, if HOME assistance is provided to a CHDO, the CHDO must adhere to a fair lease and grievance procedure approved by the City and provide a plan for and follow a program of tenant participation in management decisions (24 CFR Part 92.303). 4 (m) Change in Status. Owner agrees to advise the City in writing within thirty (30) days of any organizational, operational or legal status changes made by Owner that affect documents that were submitted by Owner. ARTICLE IV ELIGIBLE COSTS Owner agrees that eligible costs for the Project under this Agreement are limited to those eligible costs as outlined in 24 CFR Part 92.206 of the HOME Program regulations. ARTICLE V DISBURSEMENT OF FUNDS (1) The Funds shall be used by Owner for acquisition ofreal property. (2) Any payment due under the terms ofthis Agreement may be withheld pending the receipt and approval by the City of all reports and documents which Owner is required to submit to the City pursuant to the terms of this Agreement or any amendments thereto. (3) No payments will be made without evidence of appropriate insurance required by this Agreement. Such evidence must be on file with the City. (4) Owner understands and agrees that disbursement requests for funds under this Agreement are only to be requested when the funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. ARTICLE VI SUBCONTRACTS (a) Owner shall use its best efforts to include a statement in all subcontracts that it executes that the subcontractor shall hold the City harmless against all claims of whatever nature arising out ofthe subcontractor's performance of work under this Agreement to the extent allowed by law. (b) If Owner subcontracts, a copy of the executed subcontract must be forwarded to the City within ten (10) days after execution. ARTICLE VII CONDITIONS OF SERVICE (a) As a condition of these services, Owner agrees to comply with the HOME Program Final Rule, 24 CFR Part 92, and any Amendments or Notices issued pursuant thereto. (b) Owner agrees to comply with the requirements of Executive Orders 11625 and 12432 concerning Minority Business Enterprise and 12138 Women's Business Enterprise which 5 encourage the use of minority and women's business enterprises, to the maximum extent possible, in connection with HOME-funded activities. (c) Owner agrees to comply with the requirements ofthe Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 US.C. 4201-4655) and 49 CFR Part 24. The Owner acknowledges having received the HUD Manual entitled "All the Right Moves: Relocation and Assistance In HUD Programs" and HUD Handbook 1378 and will comply with all requirements contained therein. (d) Owner agrees to comply with all of the following federal laws, executive orders, and regulations pertaining to fair housing and equal opportunity. (1) Title VI ofthe Civil Rights Act of1964, As Amended (42 US.c. 2000d) -- pertaining to discrimination under any program or activity receiving federal financial assistance on the basis of race, color, or national origin. Its implementing regulations may be found in 28 CFR Part 1. (2) Title VIII ofthe Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 US.c. 3601) and its implementing regulations at 24 CFRPart 100-115 -- Prohibiting discrimination in the sale or rental of units in the private housing market. (3) Equal Opportunity in Housing (Executive Order 11063, as amended by Executive Order 12259) and implementing regulations at 24 CFR Part 107 -- Prohibiting discrimination in housing or residential property financing related to any federally assisted activity. (4) Age Discrimination Act of 1975, As Amended (42 US.C. 6101) and its implementing regulations at 24 CFR Part 146 -- Prohibiting age discrimination in programs receiving federal financial assistance. (5) Equal Employment Opportunity, Executive Order 11246, As Amended and its implementing regulations at 41 CFR Part 60 -- Prohibiting discrimination against any employee or applicant for employment. Provisions to effectuate this prohibition must be included in all construction contracts exceeding $10,000. (e) Owner agrees to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 D.S.C. 1701 u) -- Requires that, to the greatest extent feasible, opportunities for training and employment arising from HOME funded projects will be provided to low-income persons residing in the program service area; and, to the greatest extent feasible, contracts for work to be performed in connection with HOME funded projects will be awarded to business concerns that are located in, or owned by persons residing in the program service area. (f) Owner will ensure that all units in a proj ect assisted with HOME funds comply with the Lead Based Paint Poisoning Prevention Act (42 US.c. 4821, et) and its implementing regulations at 24 CFR 35. 6 (g) Owner agrees to comply with the Federal Labor Standards Provisions, as described in HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community Development Programs). (h) Owner agrees to comply with the requirements of24 CFR part 24 regarding debarment and suspension. ARTICLE VIII TERM OF AGREEMENT This Agreement shall be effective upon execution by both parties and shall terminate at the conclusion of the 5 vear period of affordability as specified in 24 CFR 92.252 (affordable rental housing). ARTICLE IX TERMINATION The City and Owner agree that this Agreement may be terminated by the City, in whole or in part, for cause (as defined in Article XXVI herein and in accordance with the provisions of24 CFR Part 85.43) or for convenience (as defined in Article XXVII and in accordance with the provisions of 24 CFR, Part 85.44). A written notification shall be required at least thirty (30) days prior to the effective date of such termination, and shall include the reason for the termination (iffor cause), the effective date, and in the case of a partial termination, the actual portion( s) to be terminated. ARTICLE X AMENDMENTS Any alterations, variations, modifications or waivers of any provisions of this Agreement, including an increased allocation of funds, shall only be valid when they have been reduced to writing and signed by the City and Owner. ARTICLE XI CONFLICT OF INTEREST (a) Owner shall comply with the standards contained within 24 CFR Part 92.356 which states that no owner, developer or sponsor of a project assisted with HOME funds (or officer, employee, agent or consultant ofthe owner, developer or sponsor) whetherprivate-for-profit or non-profit, may occupy a HOME-assisted affordable housing unit in a project. This provision does not apply to an employee or agent of the owner or developer of a rental housing project who occupies a HOME- assisted unit as the project manager or maintenance worker. Exceptions may be granted by the City in accordance with 24 CFR Part 92.356(f)(2). (b) Owner shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. Owner shall make such disclosure in writing to the City 7 immediately upon Owner's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) Related Parties. Owner shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, a for-profit subsidiary or affiliate organization, an organization with overlapping boards of directors, or an organization for which an officer of the Owner is responsible for appointing memberships. Owner shall report this information to the City upon forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported to the City in the required Annual Report. ARTICLE XII INDEMNIFICATION AND INSURANCE Owner, through an insurance carrier, shall indemnify and hold harmless the City from any and all claims, liabilities, losses, and causes of action which may arise out of an act, omission, negligence or misconduct on the part of Owner or any of its agents, servants, employees, contractors, patrons, guests, clients, or invitees. Owner, through its insurance carrier, shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name ofthe City, when applicable, and shall pay all costs and judgments which may issue thereon. Owner shall maintain during the term of this Agreement, the insurance specified below. (1) General Liability: $500,000 combined single limit for bodily injury and property damage, for each occurrence. (2) Contractual Liability: the policy must include coverage to cover the above indemnification. (3) Automobile and vehicle coverage in the amount of$500,000 per occurrence shall be required when the use of automobiles and other vehicles are involved in any way in the performance of the Agreement, including non-owned automobile coverage. (4) Workers' Compensation Coverage as per statutory limits ofthe State of Florida. (5) Builders Risk/Comprehensive Fire and Hazard Insurance: Owner shall deliver to the City the original policy of Builder's Risk and Comprehensive Fire and Hazard Insurance in completed value form with extended coverage in the amount of the full insurable value of the Project upon completion of construction, issued by a company satisfactory to the City. (6) Flood Insurance: Ifthe floor grade of the first level of the building is determined to be below the base floodplain elevation required by the Federal Emergency Management Agency (FEMA) of8 feet above NGVD, Owner shall deliver to the City evidence satisfactory to the City that the premises are covered by flood insurance supplied by the Federal Insurance Administration to the maximum amount available, all as provided in the Flood Disaster Protection Act of 1973, as amended, together 8 with appropriate endorsement. Owner agrees that the City shall have the right to take any action necessary to continue said insurance in full force. Owner shall submit to the City an ORIGINAL Certificate offusurance for the above coverage with the City named as an additional insured, to the extent of its insurable interest on all policies required herein. All insurance coverage shall be approved by the City's Risk Manager prior to the release of any funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty (30) days after the execution of this Agreement, this Agreement shall become null and void, and the City shall have no obligation under the terms thereof unless a written extension of this thirty (30) day requirement is secured from the Risk Manager. ARTICLE XIII REPORTS (1) Progress Reports. Owner agrees to submit monthly progress reports to the City, describing the status of the Project and achievement of objectives as provided herein and in the Scope of Services (Exhibit A) and Budget (Exhibit B), attached hereto. The progress reports shall be submi tted no later than 10 days after the end 0 f each month until such time as all funds are expended or, for rental projects, until the project is fully occupied. It will be the responsibility of Owner to notify the City in writing, of any actions, law, or event, that will impede or hinder the completion projects and activities as provided in this Agreement. After such notification, the City will take whatever actions it deems appropriate to ensure the success of the program. (2) Tenant and Rent Schedule Certification. a. Owner shall submit to the City for approval the proposed rents for the HOME units and, if applicable, the monthly allowances for utilities and services to be paid by the tenant. The City shall approve submitted rents if such rents comply with applicable Federal standards, or ifHUD has approved same. b. Owner shall provide the City with the initial tenant list, and any and all subsequent updates, amendments and modifications thereto, with documentation for all tenants in the HOME units confirming family size, income, financial classification, ethnicity, HOME rents charged and other information the City may require to fulfill its reporting requirements to HUD. This report will continue to be required for the full period of affordability hereunder beginning on the date of issuance of a Final Certification of Completion for the Project. The initial report shall be due within thirty (30) days ofproject lease-up. c. Annually, Owner shall deliver to the City's Housing and Community Development Division. by October 10th of each calendar year, its signed report in form and substance acceptable to the City, 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). 9 The report will continued to be required for the full 5-vear period of affordability hereunder beginning on the date of issuance of a Final Certificate of Completion for the project. (3) Other reports as may be required by the City to demonstrate compliance with any of the terms of this Agreement. If the required reports described above are not submitted to the City or are not completed in the manner acceptable to the City, the City may withhold further payments until they are completed or may take any other action as the City may deem appropriate. ARTICLE XIV AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City administration and/or the Comptroller ofthe Currency ofthe United States may deem necessary, there shall be made available to the City administration and/or representatives of the Comptroller to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. If during the course of a monitoring visit, the City determines that any payments made to Owner do not constitute an allowable expenditure, the City will have the right to deduct those amounts from their related invoices. Owner must maintain records necessary to document compliance with the provisions of this Agreement. ARTICLE XV COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS Owner agrees to comply with all applicable Federal regulations as they may apply to program administration. Additionally, Owner will comply with all State and local laws and ordinances hereto applicable. ARTICLE XVI ADDITIONAL CONDITIONS (a) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (b) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall rule. (c) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach ofthe same or any other provision hereof, and no waiver shall be effective unless made in writing. 10 ARTICLE XVII ACCESS TO RECORDS Owner, agrees to allow access during normal business hours to all financial records to authorized Federal, State or City representatives and agrees to provide such assistance as may be necessary to facilitate financial audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Owner shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance ofthis Agreement and to those personnel as may be designated by the City. ARTICLE XVIII SEVERABILITY OF PROVISIONS If any provision ofthis Agreement is held invalid, the remainder ofthis Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. ARTICLE XIX PROJECT PUBLICITY Owner agrees that any news release or other type of publicity pertaining to the project as stated herein must recognize the City as the recipient funded by the United States Department of Housing and Urban Development, and that the Program is administered by the City's Housing and Community Development Division, which is the entity providing funds for the Project. ARTICLE XX DRUG-FREE WORKPLACE Owner agrees to administer in good faith, a policy to ensure that it complies with the Drug- Free Workplace Act requirements under 24 CFR Part 24, Subpart F, and will ensure that the workplace is free from the unlawful manufacture, distribution, dispensing, possession or use of drugs or alcohol. ARTICLE XXI NONDELEGABLE Owner agrees that the obligations undertaken pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. ARTICLE XXII SUCCESSORS AND ASSIGNS Owner agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. 11 ARTICLE XXIII INDEPENDENT CONTRACTOR Owner and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances ofthe City, or any rights generally afforded classified or unclassified employees; further he/she shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXIV ASSIGNMENT This Agreement may not be assigned or transferred by Owner without the prior written consent of the City thereto, which consent shall not be unreasonably withheld. It shall be deemed a default of this Agreement in the event that Owner does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Paragraph. In the event such consent is not obtained, in the manner prescribed herein, the City shall be entitled to declare a default, cancel this Agreement, and resort to its rights and remedies against the defaulting party. In the event the Provider transfers an interest of more than one (1 %) percent ownership in its stock by pledge, sale, or otherwise; or if Owner makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if the Provider is involved in any bulk transfer of its business or assets, then in that event each ofthe foregoing actions shall also be deemed an assignment of this Agreement and shall require the City's prior written consent. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receivership for Owner, shall be deemed an assignment ofthis Agreement and will require the prior written consent of the City thereto. ARTICLE XXV TERMINATION FOR CAUSE The City may place Owner in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause, as prescribed in Article X herein. "Cause" shall include, but not be limited to, the following: (a) Owner's failure to (i) diligently pursue additional Project financing and to close on the acquisition of the Project within 60 days from the date of execution of this Agreement; or (ii) commence work within thirty (30) days from the date of issuance of the Notice to Proceed; or (iii) diligently pursue construction and timely complete the project by securing a Final Certificate of Completion within twelve (12) months from the date of execution ofthis Agreement. Work shall be considered to have commenced and be in active progress when, in the sole opinion of the City, a full complement of workers and equipment is present at the site to diligently incorporate materials and equipment into the structure throughout the day on each full working day, weather permitting. 12 (b) Owner's failure to comply with applicable building, fire, life safety, housing and zoning laws, rules, regulations and codes. (c) Owner's default on any of the terms and conditions of the note, mortgage, or other loan document executed by Owner in favor of a Lender. The affordability requirements apply without regard to the term of any loan or mortgage or the transfer of ownership. They must be imposed by deed restrictions, covenants running with the land, or other mechanisms approved by HUD, except that the affordability restrictions may terminate upon foreclosure or transfer in lieu of foreclosure. (d) Owner's failure to maintain the insurance required by the City and/or Lender. (e) Failure to comply and/or perform in accordance with any ofthe terms and conditions ofthis Agreement, or any Federal, State or local regulation. (f) Submitting any required report to the City which is late, incorrect, or incomplete in any material respect after notice and reasonable opportunity to cure, as set forth in subparagraph (h) hereof, has been given by the City to Owner. (g) Implementation ofthis Agreement, for any reason is rendered impossible or infeasible. (h) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by the City, including providing substantiating documentation when requested by the City. (i) Any evidence of fraud, waste or mismanagement as determined by the City's monitoring of project(s) under this Agreement, or any violation of applicable HUD rules and regulations. U) Owner's insolvency or bankruptcy. (k) An assignment or transfer ofthis Agreement or any interest therein which does not comply with the procedures set forth in Article XXV herein. (1) Claims oflien not satisfied or bonded-off, in accordance with Florida Statutes, within 60 days from the date of filing of any such lien. (m) Failure to comply and/or perform in accordance with the affordabilityrequirements, and/or an unauthorized transfer oftitle of its HOME projects. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to Owner, at the expiration of said thirty (30) day period (or such additional period of time, as permitted by the City, in its sole discretion, as required to cure such default, in the event Owner is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the City fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of this 13 Agreement. In the event of a default for cause, the City may, at its option, avail itself of any and all remedies pursuant to 24 CFR Part 85.43, as amended from time to time, including suspension, in whole or in part, of Owner's grant award( s); recapture ofthe Funds, as set forth herein; and any other remedies that may be legally available. ARTICLE XXVI TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI above, Owner herein consents that the City may terminate this Agreement, in whole or in part, for convenience, as set forth in 24 CFR Part 85.44. ARTICLE XXVII ADDITIONAL REMEDIES In the event of a default and termination for cause, the City shall be entitled to bring any and all legal and/or equitable actions which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE XXVIII MAINTENANCE AND RETENTION OF RECORDS Owner agrees that it will maintain all records required pursuant to 24 CFR Part 92.508, in an orderly fashion in a readily accessible, permanent and secure location, and that it will prepare and submit all reports necessary to assist the City in meeting record keeping and reporting requirements there under. (1) Records shall be maintained for a period of five years after the closeout of funds under this Agreement except as provided herein (2), (3) and (4). (2) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in paragraph (1), whichever is later; (3) Records regarding project requirements that apply for the duration of the period of affordability, as well as the written agreement and inspection and monitoring reports must be retained for five years after the affordability period terminates; (4) Records covering displacements and acquisition must be retained for at least five years after the date by which the persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled in accordance with 24 CFR Part 92.353. 14 ARTICLE XXIX LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of$309,469. Owner hereby expresses its willingness to enter into this Agreement with Owner's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $309,469. Accordingly, and notwithstanding any other term or condition of this Agreement, Owner hereby agrees that the City shall not be liable to Owner for damages in an amount in excess of$309,469, for any action or claim for breach of contract arising out ofthe performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver ofthe limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. ARTICLE XXX VENUE This Agreement shall be enforceable in Miami-Dade County, Florida, and iflegal action is necessary by either party with respect to the enforcement of any or all terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. ARTICLE XXXI ADDITIONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the Funds, originated from grants of federal HOME Investment Partnerships Program funds, and must be implemented with all ofthe applicable rules and regulation of the U.S. Department of Housing and Urban Development. It is expressly understood and agreed that in the event of curtailment or non-production of said Federal grant funds, that the financial sources necessary to continue to pay the Owner the Funds will not be available and that this Agreement will thereby terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, Owner agrees that it will not look to, nor seek to hold liable, the City or any individual member ofthe City Commission thereof, personally for the performance of this Agreement and all parties hereto shall be released from further liability each to the other under the terms of this Agreement. ARTICLE XXXII ACCESSIBILITY LAWS COMPLIANCE Owner agrees to adhere to and be governed by the following accessibility requirements: (a) Architectural Barriers Act of1968, As Amended (42 U.S.C. 4151) and its implementing regulations at 35 CFR Part 107 -- Public buildings and conveyances financed with federal funds must be designed, constructed, or altered to provide accessibility to the physically handicapped. 15 (b) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR Part 8 -- Prohibits discrimination in federally assisted programs on the basis of handicap and imposes requirements to ensure that "qualified individuals with handicaps" have access to programs and activities that receive federal funds. (c) Title VIII of the Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100-115. Owner must complete and submit the City's Disability Non-Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated herein as Exhibit C. In the event Owner fails to execute the City's Affidavit, or is found to be in non-compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to Owner under the Agreement until compliance and/or cancellation, termination or suspension ofthe Agreement in whole or in part. In the event the City cancels or terminates the Agreement pursuant to this Article, Owner shall not be relieved ofliability to the City for damages sustained by the City by virtue of Owner's breach of the Agreement. ARTICLE XXXIII NOTICES All notices shall be sent to the parties at the following addresses: Ifto the City: City of Miami Beach 1700 Convention Center Drive, 3rd Floor Miami Beach, FL 33139 Attn: (1) City Attorney's Office and (2) Housing and Community Development Division Director If to Owner: Maria Pellerin Barcus Carrfour Supportive Housing 155 South Miami Avenue Miami, Florida 33130 or to such address and to the attention of such other person as the City or Owner may from time to time designate by written notice to the other. 16 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized official(s) on the day and date first above indicated. CARRFOUR SUPPORTIVE HOUSING a Florida not-for-profit corporation ATTEST: ~?3~~<:_/ Authorized Signatory f ~~~ Secretary "..ir1t'~f Ie eo Printed Name and Title of Authorized Signatory ATTEST: CITY F MIAMI BEACH a Fl d ic' al corporation felw~ r r1fi-~ City Clerk Mayor F:\NEIG\HSG-CD\STEVE\HO~30 MERIDIAN AVENUE AGREEMENT .12.!..(l],OQC APPROVED N3 TO FORM & LANGUAGE & FOR EXECUTION 17 EXHIBIT A SCOPE OF SERVICES SCOPE OF SERVICES 1. Address of Project: 530 Meridian Avenue Miami Beach, FI 33139 2. Legal Description: Lot 4, Block 74, Ocean Beach Addition No. Three, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County, Florida. 3. Building and Site Characteristics Carrfour Supportive Housing (Carrfour) submitted an application for $350,000 in HOME Program funds to be used toward the rehabilitation the property located at 530 Meridian Avenue, Miami Beach. On June 2001, Carrfour acquired the property for $1,650,000 utilizing funds provided by the Federal Home Loan Bank and a purchase money mortgage. In addition, Carrfour has secured $1,000,000 from the Florida Housing Finance Corporation, $604,395 from the Miami-Dade County Documentary Surtax Program, and $395,605 in Miami- Dade HOME Investment Partnerships Program for the rehabilitation of the building. The total cost of the project is estimated to be $3,989,469, or $275 per square foot. This three-story building is located one-half block north of Fifth Street. The building has a total area of 14,531 square feet. The property consists ofa 76- unit building that will be reconfigured into 71 Single Room Occupancy (SRO)-units. Of these units, 55 units will be provided as transitional housing for formerly homeless individuals participating in the Miami-Dade County Continuum of Care, 15 units will be provided as affordable rental units for income-eligible residents, and one unit will be provided as the building manager's unit. On June 7, 2002, the City's Board of Adjustment granted Carrfour a one-year variance for 530 Meridian Avenue (File No. 2872) to waive 159 sq. ft. ofthe minimum required hotel room size of 300 sq. ft. in order to substantially remodel an existing hotel with rooms ranging in size from 141 sq. ft. to 171 sq. ft. On May 21, 2003, Carrfour requested a six-month extension of the variance. Carrfour's request is scheduled to be heard by the Board of Adjustment during the meeting of July 25,2003. A Phase I Environment Review was conducted to determine possible petroleum product contamination, and the presence of asbestos or lead paint. As a requirement of funding, the Owner will mitigate any hazardous conditions identified in the Phase 1 report. The Property has been appraised at $1,650,000. 4. Upon completion of the Project, 55 units will be HOME-assisted and carry restricted rent and tenant income restrictions for the duration of the 5-year affordability period. 5. Proposed Elements of Construction The proposed scope of work, based on a preliminary evaluation, includes the following exterior rehabilitation: full exterior historic renovation including new roof, new windows and doors, accessibility improvements and patio rehabilitation. The interior improvements will consists of new plumbing and electrical systems, installation of central air-conditioning system, new doors, appliances, plumbing fixtures, floor finishes, installation of wheelchair lift, and historic restoration of the lobby. On May 9, 2003, the City issued a 30-day placard declaring the building unfit for human habitation. Subsequently, Carrfour vacated the building. In the process, Carrfour informed the City that up to eight of the residents of 530 Meridian may be eligible for relocation benefits in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA). Carrfour has indicated that it intends to utilize a portion of the HOME Program funds previously provided to them by Miami-Dade County for the cost associated with relocation benefits. 6. The following procedures must be followed, prior to the commencement of work on the project: (a) Each contractor and/or subcontractor must be found to be eligible to work on a federally funded project. The names submitted will be checked against the monthly listing "Consolidated List of Debarred, Suspended & Ineligible Contractors and Grantees" published by the Federal Government. (b) Since the Building is more than 50 years old, Owner's Architect or Engineer (1) must obtain and submit to the City a letter indicating that the plans for the project have been reviewed by the State Historic Preservation Officer (SHPO) and that the proposed rehabilitation is acceptable to that office, and (2) must submit a copy of the 50 year re-certification for the building. (c) A set of final approved plans and specifications for the project approved by the City's Building Department must be submitted to the Housing and Community Development Division of the City's Neighborhood Services Department. (d) Building permits must be obtained as required by applicable City Ordinance. Also, any other necessary permits and applicable approvals from any other governmental authorities must be obtained, if required. (e) A copy of the contract between Owner and a licensed General Contractor must be submitted to the City which includes commencement and completion dates, contract amount, scope of work, Federal Labor Standards Provisions (HUD Form 4010, if applicable), and applicable federal regulations and standards. (f) The General Contractor selected must submit evidence prior to the commencement of work, satisfactory to the City's Insurance Manager, of the following insurance coverage: 1) Liability insurance against claims arising out of accident or occurrence on the property, in a minimum amount of $1 ,000,000. The City of Miami Beach must be named as additional insured in the policy; and 2) Proof of worker's compensation coverage; and such other forms of insurance as the City's Risk Manager may reasonably require. (g) A revised cost breakdown, to include direct and indirect costs of the proposed work, based on the actual contract price. When the above requirements have been met, the Housing and Community Development Division and the Building Department will jointly issue a "Notice to Proceed" on the project. If Owner or contractor does not fully comply, or if any work commences prior to the issuance of the Notice to Proceed, then such work may, at the discretion of the City, constitute a default under this Agreement. Exception: Subject to the prior approval of the Housing and Community Development Division and the Building Department, emergency repairs can be undertaken on the Project. 7. Owner's General Contractor shall be responsible for compliance with all pollution and asbestos control standards of the concerned governmental agencies. It shall be the Contractor's responsibility to obtain required inspections from these agencies. 8. Federal regulations require that all tenants in housing rehabilitated with federal funds, be provided with information on the following: that the property may contain lead-based paint; ofthe hazards, symptoms and treatment for ingestion oflead-based paint; of the precautions to be taken; of the availability of blood level screening for children under seven years of age; and that in the event lead-based paint is found in the property, appropriate abatement procedures must be undertaken by Owner. Copies of a brochure will be provided to the Owner by the City. This information must be provided by Owner to each tenant, and Owner must retain evidence of having provided this notification to the tenant in a file for the life of this Agreement. 9. After the property has been rehabilitated, it must conform to the applicable codes, ordinances and statutes of the City and of Miami-Dade County, including, but not limited to, the South Florida Building Code, the Zoning Ordinance, and the Property Maintenance Standards. 10. Owner agrees that it will develop an affirmative marketing plan, with concurrence from the City, that will comply with the City's adopted affirmative marketing procedures and requirements for projects containing 5 or more HOME-assisted housing units. Owner shall implement an affirmative marketing program that provides information to, and attracts eligible persons in the housing market area to the available housing receiving assistance from HOME funds, without regard to race, color, national origin, religion, sex, sexual orientation, handicap, marital status, familial status, or age. The affirmative marketing requirements and procedures adopted by Owner shall include, but not necessarily be limited to, the following: a. Methods to promote greater choice of housing opportunities; b. Practices for marketing vacant units that will affirmatively further fair housing (e.g., use of commercial media, use of community contacts, use of the Equal Housing Opportunity logotype or slogan, and display of fair housing poster); c. Special outreach efforts to inform and solicit applications from persons in the housing market area who are not likely to apply for the housing without special outreach and advertising efforts (e.g., use of community organizations including, but not limited to: places of worship, employment centers, community centers, fair housing groups, housing counseling agencies, community development corporations, and the Housing Authority ofthe City of Miami Beach). The City shall provide a list of potential outreach sources to Owner; d. Maintenance of records describing actions taken to affirmatively market units and records to assess the results of these actions, including newspaper clippings of all vacant units advertised, copies of brochures, pamphlets, and articles used in advertising units, lists of community organizations used in disseminating information, records of referrals and the results of these referrals, and documentation of any other special outreach activities conducted. e. A certification that states that the Owner agrees to adhere to any corrective actions the City requires if affirmative marketing requirements are not met. 11. Project Development Schedule Commence Construction Complete Construction Lease-up September 2003 September 2004 October 2004 EXlllBIT B BUDGET SOURCES AND USES OF FUNDS 530 Meridian Avenue ESTIMATED SOURCES OF FUNDS Purchase Money Mortgage Fcderal Homc Loan Bank Florida Housing Finance Corporation Miami-Dade County Documentary Surtax Program Miami-Dade HOME Investment Partnerships Program City of Miami Beach HOME Program USES OF FUNDS ACQUISITION OF PROPERTY REHABILITATION PRE-DEVELOPMENT COSTS FINANCIAL COST DEVELOPER'S FEE $1,180,000 500,000 1.000.000 604,395 395,605 ---209,4fi2 $3,989,469 $1,650,000 1,662,000 343,594 74,406 259,469 $3,989,469 EXlllBIT C DISABILITY DISCRlMINA TION AFFIDAVIT CONTRACT REFERENCE: DISABILITY DISCRIMINATION AFFIDAVIT (,aU tow 5vf!M"tivt' J/"V~I~f. Name offllU{ corporation, or organization AUTHORIZED AGENT COMPLETING AFFIDAVIT: C Eo I ~t'J;'flZt... /)1flriu I..-!lt/;" 4,""'1;5 POSITION: PHONE NUMBER: I'!o'$) 1 //~11~ /in: J 2 , I, lJJ,vi ~ I.rlkr/n .B./c..vt; , being duly first sworn state: That the above named firm, corporation or organization is in compliance with and agrees to continue to comply with, and assure that any subcontractor, or third party contractor under this project complies with all applicable requirements of the laws listed below including, but not limited to, those provisions pertaining to employment, provision of programs and services, transportation, communications, access to facilities, renovations, and new construction. The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101-336, 104 Stat 327, 42 U.S.C. 12101-12213 and 547 U.S.C. Sections 225 and 611 including Title I, Employment; Title II, Public Services; Title III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S.C. Section 794. The Federal Transit Act, as amended: 49 U.S.C. Section 1612. ct as amended: 42 U.S.c. Section 3601-3631. SUBSCRIBED AND SWORN TO (or affirmed) before me by 11,1'1'" !fllt/IA Eli/IV v) (Affiant) !2/1f/t/.! (Date) )2//!/1J? - (Date) r has presented as identification. (print or Stamp Name of Notary) (Type of identification) ~\\\\""""""I ~\~\'?:, i' . CAP, !:'!", ~ CV ........""f,y ~ ~ v .....~~\SSION €":-. ~ ~ .- QVO' 27 "1',(1. .....: ~ .. G >>~\ '<0. ~ e. ~ ~ .~~~ ~~.. ~ = :::: :*: =*: .... : = ::. 45400' ""::: ~~.. #001 .~;: -0. t?-g:;;::- ~ ~.N.. ~__..._..J. ~ .~"C):!'lto; ~ ~ .,,~1lP. "'UI'.IlJlil\I~ ~./"N;::' ~~)--..rPtJb~c~...&'<~ ~ ,aU ........ <_ C5 '* ;11111. 'Bile $1r-1'-,\\\'I: "''''''h,,''\\\~ (Serial Number) ~ ~- h-/.- - - -~..... /. ,- - (Signature of Notary) (Expiration Date) Notary Public FJ.... (State) Notary Seal The City of Miami Beach will not award a contract to any firm, corporation or organization that fails to complete and submit this Affidavit with the firm, corporation or organization's bid or proposal or fails to have this Affidavit on file with the City of Miami Beach. EXlllBIT D PREFERENCE PROCEDURE Sunsouth Intake Plan Carrfour Supportive Housing ("Carrfour") will target the City of Miami Beach's homeless population, with preference for the chronically homeless, for residency at Sunsouth Place ("Sunsouth"), located at 530 Meridian Avenue. As of December 2003, the City of Miami Beach has approximately 400 adults that have been identified as homeless and have received services from the Office of Horne less Coordination. Estimates ofthe chronically homeless vary greatly, ranging from 25% to 70% ofthe homeless population. Carrfour will work closely with the City of Miami Beach's Office of Horne less Coordination to identify this population and ensure the integrity and validity of those receiving services at this location. Carrfour will begin the intake process by opening the waiting list as soon as the rehabilitation ofthe property commences. During this initial period, the waiting list will only be open to homeless adults that have been identified as being homeless in Miami Beach by the City of Miami Beach's Office of Homeless Coordination (MBOHC). First priority (Waiting List 1) will be given to Miami Beach's chronically homeless as defined by the U.S. Departrnent of Housing and Urban Development. Second priority (Waiting list 2) will be given to individuals who are homeless, but do not qualify as chronically horneless. In order to be eligible for residency at Sunsouth, individuals must be stable, clean/sober, have income from benefits or employment, meet the HUD definition of disabled, not have a history of violence, and be capable ofliving independently. Carrfour anticipates that many of Miami Beach's chronically homeless individuals will need to undergo substance abuse, mental health and medical treatment in order to be eligible for residency. Therefore, once placed on the waiting list, staff from Carrfour and the Office of Horneless Coordination will refer these individuals to an appropriate service provider to receive the necessary treatment. While they are in treatment, Carrfour will reserve a unit at Sunsouth for these individuals. The first 55 individuals will be guaranteed a unit if they meet the acceptance requirernents. As units become available through non-qualification or turnover, the unit will be offered to the next person on the chronic homeless list until that list is exhausted. Carrfour's experience has been that individuals are more receptive to treatment if they know that a housing unit is being reserved for them once they successfully complete treatment. Once Sunsouth is ready for occupancy, Carrfour will move in the first 55 adults that meet the program's eligibility criteria, giving preference to the chronically homeless. However, it is important to stress that all ofthe homeless individuals originally identified and placed on the waiting list by the City of Miami Beach's Office of Homeless Coordination (approximately 400 individuals), will be offered services prior to any homeless individuals from outside the City of Miami Beach. In order to ensure that the City of Miami Beach's homeless population will receive ongoing preference, Carrfour will not take the name of any Miami Beach homeless individual off of the waiting list until they are no longer homeless. In other words, if an individual declines services or cannot be located at the time an opening is available, he/she will be re-entered at the bottom of the Miami Beach waiting list until they are permanently housed. Therefore, until all of the approximately 400 homeless individuals originally identified by the City of Miami Beach's Office of Homeless Coordination are served, the first individual called from the waiting list will always be frorn Miami Beach. It is anticipated that several years will be required to work through the list. After one year of operation, the intake plan will be re-evaluated and the Miami Beach preference will be extended and may be modified by Carrfour and the City of Miami Beach, subject to the approval of all funding sources for the building, the intent being that new policy will go into effect by the second anniversary of operation and before the initial waiting lists are exhausted.