Loading...
Home Program Agreement with Miami Beach Community Development Corporation, Inc. 2_021 -311 2.13 HOME PROGRAM AGREEMENT FEB 1 0 2022 THIS HOME PROGRAM AGREEMENT (the "Agreement"), entered into this day of , 2022("Effective Date"), by and between the CITY OF MIAMI BEACH, FLORIDA,a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the "City"); and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, INC., a Florida not-for-profit corporation,with offices located at 935 Pennsylvania Avenue, Unit 102, Miami Beach, FL 33139(hereinafter collectively referred to as "MBCDC"). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the United States Department of Housing and Urban Development(HUD)as a participating jurisdiction for the receipt of funds as provided under the HOME Investment Partnerships Program and pursuant to the HOME Program Final Rule, 24 CFR PART 92, as same may be amended from time to time; and WHEREAS, the City has an agreement with HUD for the purpose of conducting an affordable housing program with federal financial assistance under the HOME Program; and WHEREAS, the HOME Program requires that at least fifteen percent(15%)of HOME funds must be set aside for specific activities to be undertaken by a Community Housing Development Organization(CHDO)and up to five percent(5%)of the City's annual allocation can be awarded for eligible operational costs; and WHEREAS, in order to qualify for designation as a CHDO, the organization must meet certain requirements pertaining to their legal status, organizational structure, and capacity and experience, as defined by 24 CFR § 92.2; and WHEREAS, on April 23, 2021, the City certified MBCDC as a CHDO for the FY 21-22 grant cycle, with an expiration date of April 23, 2022, and approved MBCDC for an award up to five percent(5)of the City's annual allocation, in the amount of$30,796.00 for eligible operational costs; and NOW,THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings: (a) HOME Program: HOME Investment Partnerships Program, as further set forth and defined in Final Rule, 24 CFR Part 92, as same may be amended from time to time; (b) HUD: United States Department of Housing and Urban Development or any successor agency; (c) CHDO: Community Housing Development Organization, as defined in the HOME Program; 1 I OMB HOME revised 10/2021 (d) Funds: HOME Program funds; (e) CHDO Operating Expenses: Those eligible reasonable and necessary costs for the operation of the CHDO, such as salaries, wages, and other employee compensation and benefits; employee education,training, and travel; rent;utilities;communication costs;taxes; insurance; and equipment, materials and supplies. MBCDC agrees that eligible operating expenses under this Agreement are limited to those eligible costs for operating expenses as outlined in the HOME Program, at 24 CFR § 92.208. Funds may not be used to pay operating expenses incurred by a CHDO acting as a sub-recipient or contractor under the HOME Program. Any term not otherwise defined in this Article I or in this Agreement shall have the meaning set forth in the HOME Program. ARTICLE II ALLOCATION OF HOME FUNDS In consideration for the performance by MBCDC of its obligations under this Agreement, the City will provide MBCDC with HOME Program funding, in the total amount of THIRTY THOUSAND SEVEN HUNDRED NINETY-SIX AND NO/100 DOLLARS ($30,796.00) (the "Funds"). The Funds will be provided to MBCDC from the City's Fiscal Year 21/22 HOME Program allocation and shall be used for eligible CHDO Operating Expenses including salaries, wages, and other employee compensation and benefits; employee education, training, and travel; rent; utilities; communication costs; taxes; insurance; and equipment, materials and supplies. MBCDC agrees that eligible Operating Expenses under this Agreement are limited to those eligible costs for CHDO Operating Expenses as outlined in the HOME Program, at 24 CFR § 92.208. MBCDC will provide the services set forth in the Scope of Services attached as Exhibit"A" hereto. The Scope of Services shall be provided in accordance with,and subject to,the Budget attached as Exhibit "B" hereto. The Funds will be used solely to pay eligible CHDO Operating Expenses during the period commencing October 1, 2021 and ending on September 30, 2022(the Term)and will be contingent upon MBCDC submitting their CHDO certification application before its expiration on April 23,2022. Any remaining balance of Funds at the end of the aforestated Term shall automatically revert to the City without further notice and/or demand by the City and shall be remitted by MBCDC within ten (10) days of the conclusion of said Term. ARTICLE III PROCEEDS FROM HOME INVESTMENT In accordance with the HOME Program, as described in 24 CFR§92.300(a)(2), MBCDC may retain the proceeds resulting from investment of its CHDO set aside funds for use in other housing activities which benefit low-income families. However, any retention of HOME funds for housing not meeting the Affordability Requirements of the HOME Program, as set forth in 24 CFR§92.252,will be considered Program income and will be repaid in accordance with the requirements of the HOME Program, as described in 24 CFR § 92.503. 2 CMB HOME revised 10/2021 In accordance with the HOME Program,at 24 CFR§92.300, project proceeds shall be restricted to uses specified by the HOME Program, at 24 CFR § 92.301. MBCDC must have effective project control, as required by the HOME Program, as described in 24 CFR § 92.300(a)(1). ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE HOME PROGRAM MBCDC expressly agrees that the following provisions shall apply to its use of the Funds: (a) MBCDC will enter into a written agreement (or agreements) with the City, within twenty-four (24) months of the effective date of the Fiscal Year 2021/2022 HOME Agreement between HUD and the City, in order to commit the Funds to a specific eligible CHDO project(or projects). The City, at its sole discretion, may require commitment of the Funds within an earlier time period, as determined in the sole and reasonable discretion of the City Manager, in the event same is necessary to avoid recapture of said Funds. (b) MBCDC shall comply with all project requirements, as defined by the HOME Program, as set forth in 24 CFR SUBPART F, Sections 92.250, 92.251, 92.252,92.253 and 92.254. (c) MBCDC will maintain a financial management system that conforms to the financial accountability standards of the HOME Program, as set forth in 24 CFR§84.21 ("Standards for Financial Management Systems")and in accordance with the"Financial Management" guideiinisrattached hereto as Fxhibit"D" MBCDC is prohibited from charging tAnantfPPs that are not customarily charged in rental housing. (d) Affirmative Marketing. MBCDC shall adopt and implement affirmative marketing procedures for rental and home buyer projects containing five (5)or more HOME-assisted housing units, as set forth in the HOME Program, as set forth in 24 CFR§92.351. MBCDC shall maintain records of its affirmative marketing activities in accordance with the record keeping requirements of the HOME Program, as set forth in 24 CFR § 92.508 (a)(7)(ii). (e) CHDO Capabilities. As a City CHDO, MBCDC shall develop, sponsor, or own the project (or projects) funded by the Funds and shall at all times have/maintain effective management control over such project (or projects). MBCDC shall comply with the requirements for Community Housing Development Organizations(CHDO)as defined by 24 CFR Sections 92.300 and 92.301. (f) Change in Status: MBCDC shall advise the City, in writing, within thirty(30)days of any organizational, operational, or legal status changes made by MBCDC that affect documents that were submitted by MBCDC to obtain CHDO status. (g) Property Standards: MBCDC shall comply with the property standards requirements set forth in the HOME Program, as set forth in 24 CFR § 92.251. MBCDC must annually certify to the City that all HOME-assisted units are suitable for occupancy, taking into account State and local health, safety and other applicable codes, ordinances and regulations and the ongoing property standards meeting the requirements of 24 CFR Part 92.251. MBCDC must report any existing Building and Code violations to the City within ten (10) days of issuance. 3 CMB HOME revised 10/2021 (h) MBCDC shall comply with the requirements of Executive Orders Nos. 11625 and 12432, concerning Minority Business Enterprise, and Executive Order No.12138, concerning Women's Business Enterprise, which encourage the use of minority and women's business enterprises, to the maximum extent possible, in connection with HOME- funded activities. (i) MBCDC shall comply with the Displacement, Relocation, and Acquisition requirements in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4201-4655), and 49 CFR Part 24. (j) MBCDC shall comply with all of the following federal laws, executive orders, and regulations pertaining to fair housing and equal opportunity, The Sub-Recipient agrees to comply with all applicable Federal regulations as they may apply to Program administration, as described in 24 CFR Part 92 and 2 CFR Part 200, as same may be amended from time to time. Additionally, MBCDC will comply with all State and local (City and County) applicable laws and ordinances. 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. (k) MBCDC shall comply with 2 CFR Part 200, Appendix II: Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of"federally assisted construction contract" in 41 CFR § 60-1.3 must include the equal opportunity clause provided under 41 CFR § 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity"(30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339),as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR Part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." Unless otherwise required by applicable laws, in connection with performance of the Services, the Sub-Recipient shall not exclude from participation in, deny the benefits of, or subject to discrimination anyone on the grounds of race, color, national origin, sex, age, disability, religion, income, or family status. Additionally, MBCDC shall comply with the City of Miami Beach Human Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in the employment, housing, public accommodations, or public services, on the basis of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity,familial and marital status, age,ancestry, height,weight, domestic partner status, labor organization membership,familial situation, political affiliation, or disability. ARTICLE V INTENTIONALLY OMITTED] 4 CMB HOME revised 10/2021 ARTICLE VI METHOD OF PAYMENT The Funds shall be paid to MBCDC as follows: (a) MBCDC shall be paid for eligible CHDO Operational Expenses, as set forth in the Budget, attached hereto as Exhibit "B", based on actual costs, and with supporting documentation. MBCDC shall be paid only for those expenditures identified in the Budget. In order to be considered eligible for payment, project expenses not identified in the Budget must obtain the prior written approval of the City Manager prior to MBCDC incurring such expenses. Budget line item transfers must also obtain the prior written approval of the City Manager. Supporting documentation shall include, but not be limited to, the following: (1) Books, records and documents in accordance with generally accepted accounting principles, procedures and practices, which sufficiently and properly reflect all revenues and expenditures of Funds. (2) A system of allocation that will assure reliable cost measurements and customary service delivery costs. (3) Time sheets for split-funded employees, who work on more than one activity, in order to record the HOME activity delivery cost by project and the non-HOME related charges. (b) Requests for payment shall be assembled by calendar month and received by the City no later than the 10th day of the succeeding month. Failure to comply may result in rejection of invoices. (c) No payments will be made without evidence of all appropriate insurance required by this Agreement. (d) MBCDC understands and agrees that disbursements of any Funds may not be requested until such Funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. In no event shall the City provide advance funding to MBCDC, nor shall MBCDC advance Funds to any party. Payment of all or any portion of the Funds may be withheld pending the receipt and approval by the City of any and all reports and documents which MBCDC is required to submit pursuant to this Agreement. ARTICLE VII SUBCONTRACTS (a) MBCDC agrees that no work or services contemplated by this Agreement shall be subcontracted without the prior written approval of the City Manager. (b) MBCDC shall require, and shall include language in all contracts with sub- contractors, that said sub-contractor shall hold the City of Miami Beach, Florida, harmless against all claims of whatever nature arising out of the subcontractor's performance of work 5 CMB HOME revised 10/2021 or services. (c) MBCDC shall provide the City with copies of all executed subcontracts within ten (10) days after execution. ARTICLE VIII [INTENTIONALLY OMITTED] ARTICLE IX TERM OF AGREEMENT (TERM) This Agreement shall become effective upon execution by the parties hereto, as set forth in the Effective Date on page 1 hereof, and shall terminate on September 30, 2022. ARTICLE X [INTENTIONALLY OMITTED] ARTICLE XI AMENDMENTS Any amendments or modifications to this Agreement shall only be valid when they have been reduced to writing and duly approved and signed by both parties hereto. Any changes which do not materially change the scope of the Agreement, or increase the total amount of Funds payable under this Agreement, may be approved and executed by the City Manager on behalf of the City. ARTICLE XII CONFLICT OF INTEREST (a) MBCDC shall comply with the standards contained in the HOME Program, as described in 24 CFR § 92.356, which states that no owner, developer or sponsor of a project assisted with HOME funds (or officer, employee, agent or consultant of the owner, developer or sponsor), whether private for-profit or non-profit (including a CHDO when acting as an owner, developer or sponsor) may occupy a HOME-assisted affordable housing unit in a project. This provision does not apply to an owner-occupant of single- family housing or to an employee or agent of the owner or developer of a rental housing project who occupies a HOME assisted unit as the project manager or maintenance worker. Exceptions may only be granted by the City in accordance with 24 CFR § 92.356(f)(2). (b) MBCDC shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. MBCDC shall make such disclosure, in writing, to the City Manager immediately upon MBCDC's discovery of such possible conflict. The City will then render, or cause to be rendered, an opinion, which shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, a for-profit or non-profit subsidiary or affiliate organization, an organization with overlapping board of directors,and an organization for which MBCDC is responsible for 6 I CMB HOME revised 10/2021 appointing memberships. MBCDC shall report this information to the City Manager upon forming the relationship or, if already formed, shall otherwise report it immediately. ARTICLE XIII INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City, and its officers, employees, contractors, and agents, from any and all claims, liabilities, losses, and causes of action which may arise out of an error, act, omission, negligence, or misconduct on the part of MBCDC, or any of its officers, directors, employees,agents, servants,contractors, subcontractors, consultants,sub consultants, patrons, guests, clients, and/or invitees, in connection with this Agreement and/or with the project contemplated herein. MBCDC shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits(including appeals)in the name of the City,and/or its officers, employees, contractors, and agents, and shall pay all costs and judgments which may issue thereon. This indemnification shall survive termination and/or expiration of this Agreement. MBCDC shall maintain, during the Term of this Agreement, the insurance specified below. (a) General Liability: $1,000,000 combined single limit for bodily injury and property damage, for each occurrence, subject to adjustment for inflation by the City. (b) Contractual Liability: the policy must include coverage to cover the above indemnification. (c) Automobile and vehicle coverage, in the amount of $1,000,000 per occurrence, subject to adjustment for inflation by the City, 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. (d) Workers' Compensation Coverage as required pursuant to Florida Statute. (e) Builders Risk/Comprehensive Fire and Hazard Insurance: MBCDC shall provide the City with the original policy of Builder's Risk and Comprehensive Fire and Hazard Insurance, in completed value form, with extended coverage in the amount of the full insurable value of the specific funded project(or projects), upon completion of construction (and providing for adjustment subject to inflation by the City), issued by a company satisfactory to the City. (f) Flood Insurance: If the floor grade of the first level of the building is determined to be below the base floodplain elevation required by the Federal Emergency Management Agency(FEMA)of eight(8)feet above National Geodetic Vertical Datum(NGVD), MBCDC shall provide the City with evidence, satisfactory to the City, that the premises are covered by flood insurance supplied by the Federal Insurance Administration, to the maximum amount available, all as provided in the Flood Disaster Protection Act of 1973,as amended, together with appropriate endorsement. MBCDC shall submit to the City ORIGINAL certificates of insurance for the above coverages. With the exception of the Workers' Compensation coverage, all other coverages required pursuant to this Agreement must name the City of Miami Beach, Florida, as an additional insured. 7 CMB HOME revised 10/2021 All insurance coverage shall be approved by the City's Risk Manager prior to the release of any Funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty(30)days after the execution of this Agreement, this Agreement shall automatically terminate and become null and void,without further notice to MBCDC required, and the City shall have no obligation under the terms hereof. In the event of such automatic termination, MBCDC shall immediately return the entire amount of the Funds to the City, and the City's rights and remedies against MBCDC shall be the same as set forth in Article XXVI. ARTICLE XIV REPORTS (a) Progress Reports. MBCDC shall submit Monthly Project Status Reports as set forth in Exhibit"A" hereto, describing the progress made by MBCDC in achieving the objectives identified in the Scope of Services, and shall include the documents set forth in the attached Exhibit"C", including photographs of recent progress. The status report shall be submitted no later than ten (10) days after the end of each month. It will be the sole responsibility of MBCDC to notify the City Manager, in writing, of any action, law, or event that may impede or hinder the success of the activities contemplated by this Agreement. After such notification, the City Manager will take whatever actions he/she deems appropriate to ensure the success of the project. (b) MBCDC must annually provide the City with information on the rents and occupancy of the HOME-assisted units by November 1, to demonstrate compliance with 24 CFR Part 92.252. If the rental will have floating HOME units, then MBCDC must provide the participating jurisdiction with information regarding unit substitution and filling vacancies so that the project remains in compliance with HOME requirements. The City may require that MBCDC submit such other reports, as the City Manager may reasonably deem necessary, to demonstrate MBCDC's compliance with any of the terms of this Agreement. If the required reports described above are not submitted to the City or are not completed in a manner reasonably acceptable to the City Manager, the City may withhold further payments until they are completed, or take any other such action, including default,as the City Manager may deem appropriate. ARTICLE XV AUDIT AND INSPECTIONS MBCDC shall maintain any and all records, as necessary, to document compliance with the provisions of this Agreement. At any time during normal business hours and as often as the City Manager(and/or the comptroller of the United States) may deem necessary, there shall be made available to the City Manager and/or his/her authorized representatives(and/or the U.S. Comptroller and/or his/her authorized representatives), to audit, examine and make audits, of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment, and other data relating to all matters covered by this Agreement. If during the course of a monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure,the City will have the right to re-capture said monies, which shall include, without limitation, the right to deduct/reduce those amounts from their related invoices, and/or from any remaining portion of Funds not yet paid to MBCDC. 8 `-_,..__. CMB HOME revised 10/2021 Monitoring site-visits will be performed annually during the Term of this Agreement as outlined in Exhibit "A" attached hereto. ARTICLE XVI COMPLIANCE WITH LOCAL, STATE AND FEDERAL REGULATIONS MBCDC shall comply with all applicable federal regulations as they may apply to program/project administration, and will further comply with all applicable State, Miami-Dade County, and City laws and ordinances. ARTICLE XVII TERMINATION DUEA TO LACK OF FUNDING It is expressly understood and agreed by MBCDC that the Funds originate from grants of HOME funds and must comply with all applicable HUD rules and regulations. It is expressly understood and agreed by MBCDC that, in the event of curtailment or non-production of Funds, the financial sources to pay MBCDC under this Agreement will not be available and, in such event,this Agreement will thereby terminate effective as of the time that it is determined by the City Manager, in his sole and reasonable judgment and discretion, that said Funds are no longer available. In the event of such termination, MBCDC agrees that it will not look to, nor seek to hold, the City of Miami Beach, or any of its officials,officers, employees, contractors, or agents, personally liable for performance of this Agreement, and the City shall be released from any and all liability to MBCDC under the terms of this Agreement. ARTICLE XVIII ACCESS TO RECORDS MBCDC shall allow access to all financial and other records, during normal business hours, to authorized federal, State, Miami-Dade County, or City representatives, and shall provide such assistance as may be necessary to facilitate financial and/or other audit by any of these representatives including, without limitation, as deemed necessary by such representatives to insure compliance with applicable accounting and financial standards. ARTICLE XIX [INTENTIONALLY OMITTED] ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release or any other type of publicity pertaining to the project must recognize the City as the recipient funded by the United States Department of Housing and Urban Development and administered by the City of Miami Beach Office of Housing and Community Development as the entity which provided Funds for the project. Such news releases and any other publicity shall include the statement: 9 I CMB HOME revised 10/2021 "FUNDED BY THE CITY OF MIAMI BEACH HOME PROGRAM" In written materials, the words below shall appear in the same size letters or type as the name of MBCDC: "CITY OF MIAMI BEACH HOME PROGRAM FUNDS ADMINISTERED BY THE CITY OF MIAMI BEACH OFFICE OF HOUSING AND COMMUNITY DEVELOPMENT" ARTICLE XXI [INTENTIONALLY OMITTED] ARTICLE XXII ASSIGNMENT This Agreement, including any part hereof, shall not be assigned, transferred, 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 judgment. ARTICLE XXIII [INTENTIONALLY OMITTED] ARTICLE XXIV INDEPENDENT CONTRACTOR MBCDC, and its officials, directors, employees, contractors, and agents, shall be deemed to be independent contractors and not agents or employees of the City,and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded Classified or Unclassified City employees; nor shall any such individuals be deemed entitled to the Florida Workers' Compensation benefits as would employees of the City. ARTICLE XXV [INTENTIONALLY OMITTED] ARTICLE XXVI TERMINATION FOR CAUSE This Agreement may be terminated for cause. "Cause" shall include the following: (a) MBCDC's failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any applicable federal, State, County, or City law or regulation; (b) MBCDC's failure to maintain the insurance required by the City; (c) MBCDC's failure to submit any required report to the City, or submittal of a report 1 Q T CMB HOME revised 10/2021 which is late, incorrect, or incomplete in any material respect after notice and opportunity to cure, as set forth in subparagraph (e) hereof, has been given by the City to MBCDC; (d) Implementation of this Agreement, for any reason, is rendered impossible or infeasible; (e) MBCDC's failure to respond, in writing, within thirty(30)days of notice of same from the City, to any concerns raised by the City, including providing substantiating documentation when requested by the City; (f) Any evidence of fraud, waste, or mismanagement, as determined by the City's monitoring under this Agreement, or any violation of applicable HUD rules and regulations; (g) MBCDC's insolvency or bankruptcy; (h) An assignment or transfer of this Agreement(or any portion hereof)which does not comply with the procedures set forth in Article XXII; (i) MBCDC's failure to comply with and/or perform in accordance with the Restrictive Covenants during the Affordability Period; or (j) Any unauthorized transfer of title to the project by MBCDC. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, at the expiration of said thirty(30)day period (or such additional period of time, as may be permitted by the City Manager, in his sole discretion, as required to cure such default and in the event MBCDC is diligently pursuing curative efforts)this Agreement may,at the City Manager's sole option and discretion, be deemed automatically canceled and terminated, and the City shall be fully discharged from any and all liabilities and duties and terms arising out of, or accruing by virtue of, the Agreement. In the event of a default for cause, the City may also,at its option, require repayment of the total amount of the Funds, together with interest at the Default Interest Rate, as more particularly defined in the Note; avail itself of any and all remedies pursuant to the HOME Program(at 24 CFR § 85.43), including suspension and/or re-capture of the Funds,or any portion thereof; and/or pursue any other remedies that may be available at law or equity. ARTICLE XXVII TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI hereof, the City may terminate this Agreement for convenience, as set forth in 24 CFR § 85.44. In the event of termination for convenience, MBCDC shall immediately return any unused Funds(as of the date of termination)to the City. Notwithstanding the preceding, the City reserves any and all legal rights and remedies it may have with regards to recapture of all or any portion of the Funds as a result of incomplete and/or unsatisfactorily performed project items. ARTICLE XXVIII ADDITIONAL CITY REMEDIES In the event of a default and termination, the City shall also be entitled to bring any and all legal and/or equitable actions which it deems to be in its best interest, in Miami-Dade County, Florida, in 11 I CMB HOME revised 10/2021 order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE XXIX MAINTENANCE AND RETENTION OF RECORDS MBCDC shall maintain all records required pursuant to the HOME Program, at 24 CFR§92.508, in an orderly fashion and in a readily accessible, permanent and secured location, and will prepare and submit all reports required herein, to assist the City in meeting record keeping and reporting requirements herein. (a) Records shall be maintained fora period of five(5)years after the closeout of Funds under this Agreement, except as provided in subsections (b), (c) and (d), herein. (b) If any litigation, claim, negotiation, auditor other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in subsection (a), whichever is later. (c) Records regarding project requirements that apply for the duration of the Affordability Period, as well as the written agreement and inspection and monitoring reports, must be retained for five (5) years after the Affordability Period terminates. (d) Records covering displacements and acquisition must be retained for at least five(5) years after the date by which the persons displaced from the property and all persons whose property is acquired for the project, have received the final payment to which they are entitled in accordance with 24 CFR § 92.353. ARTICLE XXX LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of$10,000 less any amounts actually distributed by the City to MBCDC. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of$10,000 less any amounts actually distributed by the City to MBCDC. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of$10,000, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 12 q CMB HOME revised 10/2021 ARTICLE XXXI VENUE This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade County, Florida. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND MBCDC EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ARTICLE XXXII [INTENTIONALLY OMITTED] ARTICLE XXXIII [INTENTIONALLY OMITTED] ARTICLE XXXIV NOTICES All notices shall be sent to the parties at the following addresses: City: Alba Tarre, Department Director City of Miami Beach Office of Community Services 1700 Convention Center Drive Miami Beach, FL 33139 MBCDC: Cristian A. Arango, President Miami Beach Community Development Corporation 935 Pennsylvania Avenue, Unit 102 Miami Beach, FL 33139 or such address and to the attention of such other person as the City or MBCDC may from time to time designate by written notice to the other. ARTICLE XXXV FLORIDA PUBLIC RECORDS LAW (a) MBCDC shall comply with Florida Public Records iaw under Chapter 119, Florida Statutes, as may be amended from time to time. (b) The term "public records" shall have the meaning set forth in Section 119.011(12), Florida Statutes, which means all documents, papers, letters, maps, books, tapes, 13 CMB HOME revised 10/2021 photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business of the City. (c) Pursuant to Section 119.0701, Florida Statutes, if MBCDC meets the definition of "Contractor" as defined in Section 119.0701(1)(a), MBCDC shall: (1) Keep and maintain public records required by the City to perform the service; (2) Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time, at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement, if MBCDC does not transfer the records to the City; (4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of MBCDC or keep and maintain public records required by the City to perform the service. If MBCDC transfers all public records to the City upon completion of the Agreement, MBCDC shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If MBCDC keeps and maintains public records upon completion of the Agreement, MBCDC shall meet all applicable requirements for retaining public records.All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. (d) Request for Records; Noncompliance (1) A request to inspect or copy public records relating to the City's contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify MBCDC of the request, and MBCDC must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (2) MBCDC's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (i) unilaterally terminate the Agreement; (ii) avail itself of the remedies set forth under the Agreement; and/or(iii) avail itself of any available remedies at law or in equity. (3) A MBCDC who fails to provide the public records to the City within a reasonable time may be subject to penalties under§ 119.10, Florida Statutes. (e) Civil Action (1) If a civil action is filed against a MBCDC to compel production of public records relating to the City's contract for services, the court shall assess and award against MBCDC the reasonable costs of enforcement, including reasonable 14 CMB HOME revised 10/2021 attorneys' fees, if: (i) The frt Mlratarminec that f\AR('.rlC' i inia;A,f�rEly raft scarf to rnmrniy with the public records request within a reasonable time; and (ii) At least 8 business days before filing the action, the plaintiff provided written no tiv Z of the public records request, including a statement that MBCDC has not complied with the request, to the City and to MBCDC. (2) A notice complies with subparagraph (i)(ii) if it is sent to the City's custodian of public records and to MBCDC at MBCDC's address listed on its contract with the City or to MBCDC's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. (3) A MBCDC who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (fj iF MBCDC HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO MBCDC'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADOAMIAMIBEACHFL.GOV PHONE: 305-673-7411 ARTICLE XXXVI E-VERIFY (a) MBCDC shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-Verify Statute"), as may be amended from time to time. Pursuant to the E-Verify Statute, commencing on January 1, 2021, MBCDC shall register with and use the E-Verify system to verify the work authorization status of all newly hired employees during the Term of the Agreement. Additionally, MBCDC shall expressly require any approved subcontractor performing work or providing services pursuant to the Agreement to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract Term. If MBCDC enters into a contract with an approved subcontractor, the subcontractor must provide MBCDC with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. MBCDC shall maintain a copy of such affidavit for the duration of the Agreement or such other extended period as may be required under this Agreement. (b) Termination Rights. (1) If the City has a good faith belief that MBCDC has knowingly violated Section 448.09(1), Florida Statutes, the City shall terminate this Agreement with MBCDC for cause, and City shall thereafter have or owe no further obligation or liability to MBCDC. (2) If the City has a good faith belief that a subcontractor has knowingly violated Subsection (a) of Article XXXVI of this Agreement, but MBCDC otherwise complied with such section, the City will promptly notify MBCDC and order MBCDC to immediately terminate the agreement with the 15 CMB HOME revised 10/2021 subcontractor. MBCDC's failure to terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate MBCDC's contract for cause. (3) A contract terminated under the foregoing Subparagraphs(b)(1)or(b)(2)is not in breach of contract and may not be considered as such. (4) The City or MBCDC or a subcontractor may file an action with the Circuit or County Court to challenge a termination under the foregoing Subparagraphs(b)(1)or(b)(2)no later than 20 calendar days after the date on which the contract was terminated. (5) If the City terminates the Agreement with MBCDC under the foregoing Subparagraph(b)(1), MBCDC may not be awarded a public contract for at least 1 year after the date of termination of this Agreement. (6) MBCDC is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this section. ARTICLE XXXVII MISCELLANEOUS (a) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (b) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall rule. (c) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. (d) If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. (e) City and MBCDC agree that this Agreement shall be binding upon the parties herein, and their respective heirs, executors, legal representatives, successors, and assigns. 16 t CMB HOME revised 10/2021 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by their duly authorized officials on the day and date first above indicated. MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, INC. Finrirla nnt-tnr_nrnfit rnrnnratinn ATTEST / //! /1 g I/41 / Secretary Signature Will Wiseheart Cristian A. Arango, Chief of Operations Print Name Name and Title 2/4/2022 Date CITY OF MIAMI BEACH, a Florida municipal corporation ATTEST: City Clerk ignature Rafael E. Granado Alina Hudak, City Manager Print Name Name and Title \\\11111 FEB 1 0 2022 Date - �;., • c IRcORP ORRT[DF APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION O� \ City Attorney at 17 CMB HOME revised 10/2021 EXHIBIT A Scope of Services A. Maintain the eligibility of Miami Beach Community Development Corporation, Inc. (MBCDC) as a qualifying Community Housing Development Organization (CHDO). Submit annual documentation, including the Application for Certification and Board Compliance Tracking Forms, to verify the eligibility of the organization as a CHDO. B. Coordinate the rehabilitation of multi-family rental buildings for income-eligible participants. Maintain appropriate staff to supervise the operation for the purposes of implementing the following tasks: • Identify and secure additional funding resources available to implement housing initiates, including grant resources, bank financing, mortgages,and other funding for HOME projects. • Negotiate sales with property owners. • Secure property appraisals, environmental clearances, surveys, and housing inspections. • Assist/facilitate property closings. • Obtain building permits. • Get community input, particularly from low-income program beneficiaries,on issues regarding design, development, and management of affordable housing projects. • Undertake the development of affordable housing strategies and programs. nr mc. • Plan and develop new affordable housing initiatives, including rental housing for low- income households and persons with special needs when feasible. C. Inform rental participants of the necessity of executing a written lease agreement, initial income certification and annual income verification, and their rights and responsibilities as a tenant. D. Assist the City in carryout any affirmative marketing requirements. E. Provide verifiable staff timesheets on a regular basis. Timesheets will clearly show the time allocated to each activity. F. Report the receipt of any program income earned by MBCDC. All program income will be subject to U.S. HUD regulations and this Agreement. G. Continue the rehabilitation and management of apartment buildings currently under development, or previously developed; continue to provide new development initiatives that are owned, sponsored, or developed by MBCDC for the duration of the respective affordability periods. 18 OMB HOME revised 1012021 Exhibit"B"Budget �, /� A I A ^�/'� I BEACH HOME FY 21/22 J Project Budget Sub-Recipient: Miami Beach Community Development Corp. Project: CHDO Operating Funds Please list all items that will be reimbursed by the City of Miami Beach. Line Item Quantity Unit Cost Line Total Personnel(Employees Only)-List Position Title Salaries-Chief of Operations I S 75 R43 00 Personnel Expenses..-Category Totals $ 25,843.00 Operating Expenses-Category Totals AFCO USI Director and Officers-Insurance $ 969.69 Operating Expenses-Category Totals $ 969 69 Capital/Equipment Costs De Lange-Printer $ 166.00 Invizio $ 25.00 Zoom $ 30.00 --Category Totals $ 221.00 Professional Services Professional Services-Category Totals $ - Other Costs Kaufaman Rossin Accounting $ 3,713.00 Bank fees $ 50.00 Other Costs-Category Totals $ 3,763.00 Pro ect Total-All Cate•odes $ 30,796.69 EXHIBIT C Monthly Project Status Report Form Monthly Financial Report Sub-Recipient: Miami Beach Community Development Corporation Project: CHDO Operating Agreement Funding Source: HOME Funding Fiscal Year: 21/22 Date of Reimbursement Request: Draw Number: Reimbursement Summary Expense Category Grant Award Available Balance This Request Personnel Expenses $ 5,903.00 $ 5,903.00 $ - Operating Expenses $ - $ - Capital/Equipment Expenses $ - Professional Services Expenses $ - $ - $ - OtherEx•enses $ 24893.00 $ 24893.00 $ - Total Reimbursement Request $ - Sub-Recipient Certification In accordance with the contract between the City and the Sub-Recipient: The parties acknowledge that the Funds originate from HUD,and must be implemented in full compliance with all of HUD's rules and regulations. The Sub-Recipient 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 Part 92, 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. In accordance with the contract between the City and the Sub-Recipient, the Sub-Recipient must comply with the regulations governing employment and contracting opportunities as well as wage and labor standards. In accordance with the contract between the City and the Sub-Recipient, the Sub-Recipient will ensure and maintain evidence that activities assisted with HUD funds from the City comply with the stated National Objective. Signature of Preparing Party Signature of Authorizing Party Name: Name: Date Date 20 -. � � _ CMB HOME revised 10/2021 Reimbursement Detail [Personnel Expenses Employee Salary Cost Benefits a Fringe Totai Keimbursemeni Personnel Expenses Total ioperating Expenses Expense Item Unit Cost Quantity Total Rei horsemen'.. c _ Operating Expenses Total S 'Capital/Equipment Expenses Expense Item Unit Cost Quantity Total Reimbursement Capital/Equipment Expenses Total a - IProfessionai Services Expenses Expense Item Unit Cost Quantity Total Reimbursem $ $ $ Professional Services Expenses Total $ - Other Expenses Expense Item Unit Cost Quantity Total Reimbursement a $ S - Other Expenses Total $ - 21 1 CMB HOME revised 10/2021 EXHIBIT D Monitoring Summary Administration/Financial Management Includes organizational structure, Board of Directors, personnel records, maintenance of appropriate insurances, written operational policies and procedures, maintenance of an adequate financial management system, fiscal year audit report and findings, and maintenance of the City contract documentation. General Files Maintenance Includes overall submission of required reports (both financial and narrative), documentation on project staff as necessary, maintenance of correspondence with the City, and the maintenance of original program application and amendments. Procurement Includes the maintenance of a written procurement policy/procedure,and actual sample of process to determine issuance and publicizing of RFP, number of proposals received, evaluation criteria and procedure, use of sealed bid process, and the actions taken to solicit proposals from minority/women-owned businesses and local residents. Contracts Management Includes sampling of contracts to determine if all appropriate HUD required language/references are included, such as Title VI and Title VIII of the Civil Rights Act, Americans with Disabilities Act, Copeland Anti-Kickback Act, Davis-Bacon Act, etc. Also review of bid guarantee, performance/payment bond requirements, and wage rate determination. Programmatic Evaluation Includes review of the internal evaluation plan for the achievement of project goals, maintenance of necessary Environmental Review file, maintenance of Labor Standards records, maintenance of Section 3 records, and EEO, Affirmative Action, Fair Housing plans/policies. Acquisition and Relocation If real property was acquired were proper URA guidelines followed and appropriate documentation maintained. 22 l CMS HOME revised 10/2021