44(b) Loan Agreement (Surtax)
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LOAN AGREEMENT
[Surtax Loan]
THIS LOAN AGREEMENT is entered into as of December 15, 2023, by VISTA
BREEZE, LTD., a Florida limited partnership, whose address is 3 Miami Central, 161 NW 6th
Street, Suite 1020, Miami, Florida 33136, Attn: Kenneth Naylor ("Borrower") and MIAMI-DADE
COUNTY, FLORIDA, a political subdivision of the State of Florida, whose address is 111 N. W.
1st Street, Miami, Florida 33128, Attention: County Mayor ("Lender" or “County”).
1. RECITALS.
(a) Borrower is the leasehold owner of the real property described in
Exhibit "A" attached hereto and incorporated herein by reference (the "Land").
(b) Pursuant to Florida law and the Code of Miami-Dade County, Lender is
authorized to assist in the financing of construction and rehabilitation of housing for low and
moderate income families by lending Miami-Dade County funds for that purpose.
(c) Borrower has applied to the Lender for an allocation of funds from the
Surtax/SHIP Program in the amount of Five Million Nine Hundred Fifty Thousand and 00/100
Dollars ($5,950,000.00) (the “Loan”). The Loan will be used by Borrower to finance a portion of
the development of a complex known as Vista Breeze, located in Miami Beach, Florida which
shall consist of one hundred nineteen (119) affordable units as described more fully in the County
Contract (as defined below) (the “Complex”) to be built by the Borrower upon the Land (the
Complex and the Land are collectively referred to herein as the “Premises”).
(d) Lender has agreed to loan these funds to Borrower to be used to finance a
portion of the total Complex Costs (as defined below) for the development of the Premises as
housing for low and moderate income families.
(e) Borrower and Lender have negotiated the terms and conditions of the
allocation of the Surtax/SHIP Funds and have entered into a FY 2022 Request for Application
(RFA) Affordable Housing Funding Agreement (the “County Contract”) each by and between the
County and Borrower, copies of which are attached hereto as Exhibit "B", which evidence the
allocation of the Loan.
(f) The parties now wish to enter into this Agreement in order to set forth the
terms and conditions of the disbursement of the allocation of the Loan.
(g) The Loan is not and will not be sourced with the proceeds of federal funds
or tax-exempt bonds.
NOW, THEREFORE, in consideration of the premises, of the foregoing recitals which
Borrower and Lender ratify and adopt and of the mutual covenants and agreements set forth below,
Borrower and Lender agree as follows:
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2. DEFINITIONS. As used in the Agreement, the terms listed below shall have the
following meanings unless otherwise required by the context:
(a) Advance: A disbursement by Lender of a portion of the proceeds of the
Loan to the Title Company for the benefit of Borrower.
(b) Reserved.
(c) Architect's Agreement: Borrower's Agreement with Brooks + Scarpa
Architects, Inc. (the "Architect") for design of the construction of the Complex, a true and correct
copy of which has heretofore been delivered to Lender.
(d) Assignment of Leases, Rents and Contract Rights: A Collateral Assignment
of Leases, Rents and Contracts Rights of even date herewith from Borrower assigning to the
Lender all of its rights, title and interest in and to all agreements for the leasing of the Complex or
any part thereof, if any, and all rents, issues and profit derived or to be derived from the Complex.
(e) Reserved.
(f) Closing Costs: Those costs incurred by Borrower to consummate this Loan
and the loan of the other Funding Sources (as defined below), which shall include but not be limited
to cost of acquiring the land, cost of recording all documents, all documentary stamp taxes and
legal fees.
(g) Code: The Internal Revenue Code of 1986, as amended.
(h) Completion Date: June 31, 2026, or the date on which the Borrower receives
true, correct and complete copies of all requisite final certificates or permits permitting occupancy
of 100% of the units, whichever occurs first.
(i) Construction Contract: Borrower's agreement with Atlantic Pacific
Community Builders, LLC (the "Contractor") for construction of the Complex in substantial
accordance with the plans and specifications (the "Plans"), a true and complete copy of which has
heretofore been delivered to Lender.
(j) County Contract. A FY 2022 Request for Application (RFA) Affordable
Housing Funding Agreement Between Miami-Dade County and Borrower in the amount of
$5,950,000.00, as may be amended from time to time. In the event of any conflict between the
terms and provisions of this Loan Agreement and the County Contract, this Loan Agreement shall
control.
(k) Reserved.
(l) Construction Period: The period beginning on the date of the execution of
this Agreement (the "Closing Date") and ending on the Completion Date.
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(m) Contract Records: Any and all books, records, documents, information,
data, papers, letters, materials, electronic storage data and media whether written, printed,
electronic or electrical however collected or preserved which is produced, developed, maintained,
completed, received or compiled by or at the direction of the Borrower or any subcontractor in
carrying out the duties and obligations required by terms of this Agreement or the County Contract,
including but not limited to financial books and records, ledgers, drawings, maps, pamphlets,
designs, electronic tapes, computer drives and diskettes or surveys.
(n) Depository Account: An escrow account to be opened by Miami-Dade
County, in the name of Miami-Dade County and Borrower, to be maintained for the sole purpose
of depositing loan proceeds to pay project costs of the Complex (“Complex Costs”) as set forth in
Exhibit "C" attached hereto.
(o) Development Cash Flow: is defined as revenue from the Premises (as
defined herein) for the previous calendar year less all expenses of the Premises (as defined herein)
for the same period, including but not limited to all payments (principal and interest) on any
superior debt, reserves due under such superior debt, and any Deferred Development Fee (defined
as the portion of the developer fee that will not be paid to the developer from the project funding
sources but will be paid to the developer from the project's cash flow and from proceeds from
certain capital contributions). In the event there is insufficient Development Cash Flow for Maker
to make any portion or the entire annual Interest only payment for any given year (the amounts not
paid being referred to herein, collectively as the "Deferred Amount"), the Deferred Amount shall
bear Interest at a per annum simple interest rate of 1% and such Deferred Amount shall be deferred
to the Maturity Date. Any and all remaining unpaid Deferred Amounts, Interest and outstanding
Principal shall be due and payable on the Maturity Date.
(p) Disbursing Agent: Title Company, or any successor agent designated by
Lender to disburse the proceeds.
(q) Funding Sources: All sources of financial assistance to the Complex as
represented to Lender by Borrower, more particularly set forth in the Complex Budget which is
attached hereto as Exhibit "C".
(r) Improvements. All structures or improvements on the Land.
(s) Inspector: Miami-Dade County, or any successor inspector appointed by the
Lender, which shall be at the expense of the Borrower.
(t) Legal Requirements: All laws, statutes, codes, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses, authorizations, directions and
requirements of, and agreements with, all governments, departments, commissions, boards, courts,
authorities, agencies, officials and officers, foreseen or unforeseen, ordinary or extraordinary, and
any restrictions or agreements of record which now or at time hereafter may be applicable to the
Complex or any part thereof, or any of the adjoining sidewalks, streets or ways or any use or
condition of the Complex or any part thereof or any persons from time to time employed thereon
or occupants thereof, or any business conducted therefrom, including but not limited to, zoning,
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building and land use, noise abatements, occupational health and safety and of the governmental
requirements relating to health, safety and environmental protection.
(u) Limited Partner: Bank of America, N.A., a national banking association, in
its capacity as investor limited partner of the Borrower, and , its successors/assigns.
(v) Loan Documents: The County Contract; Mortgage; Note; Assignment of
Leases, Rents and Contract Rights; Assignment of Construction Documents; Rental Regulatory
Agreement (as defined below); Environmental Compliance and Indemnity Agreement
(“Environmental Indemnity”); and this Agreement.
(w) Mortgage: Leasehold Mortgage and Security Agreement and Assignment
of Leases, Rents and Profits from Borrower to Lender, securing the Note, which is a valid lien on
the Premises and all fixtures and personal property owned by Borrower to be used in connection
with the Complex.
(x) Permitted Encumbrances: Those matters set forth as Exceptions in the title
commitment issued by the Title Company and any other matters approved by Lender.
(y) Premises: The Land, the Complex and all Improvements, fixtures and
personal property, including but not limited to the Complex, now or hereafter located on the Land.
(z) Promissory Note or Note: a Promissory Note in the principal amount of Five
Million Nine Hundred Fifty Thousand and 00/100 Dollars ($5,950,000.00) from Borrower to the
order of Lender and dated of even date herewith.
(aa) Rental Regulatory Agreement: The agreement executed by Borrower and
Lender which sets forth the rental restrictions, utility allowances and family income limits that will
be required by Lender to be used by Borrower in connection with the operations of the Complex.
(bb) Title Company: Fidelity National Title Insurance Company.
(cc) Borrower’s Managing General Partner: APC Vista Breeze, LLC, a Florida
limited liability company.
(dd) Borrower’s Administrative General Partner: Vista Breeze HACMB, Inc., a
Florida nonprofit corporation.
3. THE LOAN. The Lender shall make a loan to Borrower in the total amount of
$5,950,000.00, upon the terms and conditions set forth herein, and Borrower shall take the Loan
and expressly agree to comply with and perform all of the terms and conditions of this Agreement.
Borrower is obligated, and expressly agrees, to use the proceeds of the Loan for construction of
the Complex and other improvements on the Land, to pay soft costs incurred in connection with
the development and construction of the Complex, or to pay down or refinance loans used for the
construction or development of the Complex.
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The Loan shall be evidenced by a Note, executed on even date herewith and shall be
secured by the Mortgage and other Loan Documents as provided herein. The Loan may be prepaid
at any time, in whole or in part, without penalty.
The repayment terms of the Loan shall be more specifically set forth in the Note.
4. DISBURSEMENT AND USE OF FUNDS. Upon satisfaction of all conditions
required and specified in Section 5 hereof, Lender shall disburse the Loan funds to Disbursing
Agent in accordance with the following procedures set forth herein.
Lender and Borrower agree that the Loan funds and other Funding Sources shall be
disbursed to pay for Complex Costs as set forth in Exhibit "C". Lender and Borrower have further
agreed to the following procedures for disbursement of the Loan:
(a) Borrower shall make no more than one (1) draw request in any calendar
month.
(b) Borrower shall submit a request for disbursements from federal funds (if
any) prior to a request for disbursement of funds from other non-federal funding sources.
(c) The funds requested may be used to pay Complex Costs.
Lender shall not be obligated to approve any "Request" (as defined below) unless and until
the following conditions are satisfied:
(a) All conditions specified in Section 5 of this Agreement shall have been
satisfied.
(b) There shall be no Event of Default under this Agreement, the County
Contract, the Note, Mortgage, or any other Loan Documents.
(c) The Lender shall have received:
(i) A completed request for disbursement ("Request") in the forms
specified by Lender from time to time, prepared by Borrower and the Contractor and certified by
the Inspector. Each Request shall be accompanied by:
(1) Proof as to paid and unpaid construction bills for
materialmen and subcontractors, which show full payment
of all such bills then due and payable. Disbursements shall
be made only on a reimbursement basis and only to
reimburse Borrower for eligible payments made by
Borrower.
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(2) If required by Lender for cause, copies of checks payable to
suppliers and subcontractors with respect to the current
Request. In the following Request, Borrower shall provide
Lender with copies of cancelled checks received since the
previous Request along with a reconciliation of any
outstanding items, if required by Lender.
(3) Lien waivers for all work and materials as required by the
title insurance company for the issuance of its endorsements;
(4) Inspection reports, architects’ and/or engineers’ certificates
with respect to the Improvements, and such other proofs as
the Lender may require to establish the construction progress
and compliance with the Plans;
(5) Affidavits of the Contractor and of any subcontractors or
materialmen as to whom payments are due or will become
due, covering all work done or to be done or services to be
performed.
(6) The current status of accounts of contractors, subcontractors,
materialmen, and laborers furnishing labor, materials or
services in the improvement of the Premises.
(ii) Advice from the Inspector that any construction of the Complex
theretofore performed is in compliance with the Plans.
(iii) Advice from the Title Company that a search of public records discloses
no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title
retention agreements filed or recorded against the Complex, other than the Permitted
Encumbrances.
(iv) An endorsement to the Lender’s title insurance policy heretofore
delivered, that since the last preceding disbursement, there has been no change in the state of title
not theretofore approved by Lender, which endorsement shall increase the coverage of the policy
by an amount equal to the advance then being made if the policy does not by its terms provide for
such an increase.
Each Request shall constitute a representation, with respect to the work and materials for
which payment is requested that such work and materials have been physically incorporated into
the construction free of liens and encumbrances, or have been delivered to the Premises free of
liens and encumbrances and stored in a manner satisfactory to Lender; that work or materials have
been performed or installed (except for those materials stored in a manner satisfactory to Lender)
in a good and workmanlike manner; that the work and materials conform to the Plans and to all
applicable statutes, laws or ordinances, administrative rules, regulations and requirements and that
all Improvements are wholly within the building restrictions of the Premises, and that construction
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has been performed by the Contractor in accordance with Occupational Safety and Human
Administration (“OSHA”) Lead in Construction Standard (29 C.F.R. 19926.62).
Each Request shall be subject to the approval of Lender and such approvals shall be given
if the foregoing conditions have been satisfied in all material aspects, but the approval of such
Request by Lender shall not constitute an approval or acceptance of the work or materials, nor be
binding upon Lender, except to the extent that the facts actually are as so represented when so
approved, nor shall such approval give rise to any liability or responsibility relating to: (i) the
quality of the work, the quantity of the work, the rate of progress in completion of the work, or the
sufficiency of materials or labor being supplied in connection therewith; or (ii) any errors,
omissions, inconsistencies or other defects of any nature in the Plans. Any inspection of the work
that Lender may choose to make during the progress of the work, whether through any consulting
engineer, agent, employee or officer, shall be solely for Lender's information and under no
circumstances will any such inspection be deemed to have been made for the purpose of
supervising or superintending the work, or for the information or protection of any right or interest
of any person or entity other than Lender.
No payment shall be due under any Request unless in the reasonable judgment of Lender,
whose decision shall be final in such matters, all work usually done and all materials usually
furnished at the stage of construction when the payment is to be made have been done and
furnished in accordance with this Agreement.
5. CONDITIONS TO LENDER'S OBLIGATION TO FUND. The conditions
listed below are conditions precedent to Lender's obligation to fund any amount under the terms
hereof and shall be complied with in form and substance satisfactory to the Lender prior to the first
Advance; and shall continue to be complied with prior to any disbursements by Lender or
Disbursing Agent.
(a) Note: The Note shall be duly authorized, executed and delivered to the
Lender prior to funding of the proceeds of the Loan.
(b) Mortgage: The Mortgage shall be duly authorized, executed,
acknowledged, delivered to the Lender, and recorded, and shall be a valid mortgage lien on the
Premises and all fixtures and personal property owned by Borrower to be used in connection with
the Complex.
(c) Rental Regulatory Agreement (if applicable): The Rental Regulatory
Agreement shall be duly authorized, executed and delivered to the Lender and recorded.
(d) Assignment: The Collateral Assignment of Leases, Rents and Contract
Rights and the Collateral Assignment of Construction Documents shall be duly authorized,
executed, acknowledged, and delivered to the Lender and recorded.
(e) Survey: An original current survey of the Land made by a registered
surveyor reasonably satisfactory to the Lender and containing such certificates as Lender may
require.
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(f) Title Insurance: Borrower shall deliver to the Lender an original proforma
policy of title insurance issued by the Title Company in an amount equal to the principal amount
of the Loan, which title insurance policy (i) shall insure the Lender against loss of damage on
account of mechanics' liens upon the Premises, (ii) shall insure that the Mortgage is a valid lien on
the Premises at the time of the first advance, (iii) shall insure that title to the Land is good and
marketable and free and clear of all liens, encumbrances, easements, exceptions, reservations and
restrictions except for those approved by the Lender and the Permitted Encumbrances.
(g) Building Permits: Lender shall receive evidence that authorizations and
permits required from the appropriate governmental authority for the construction of the Complex
have been or will be obtained.
(h) Mortgagor's Affidavit: An affidavit of Borrower shall be executed and
delivered to the Lender certifying that no liens exist on the Premises, except for the liens set forth
on the proforma title policy issued to the County and taxes not yet due and payable and that no
other parties are entitled to possession except as otherwise provided herein.
(i) Utility Letters: Borrower shall deliver to Lender letters from local utility
companies or municipal authorities stating that electric, gas (if applicable), sewer and water
facilities will be available to the Premises in sufficient capacity to service the Complex upon
completion of the Complex.
(j) Zoning: A copy of all applicable zoning ordinances including amendments
thereto, variances or special permits covering the Premises, and a copy of the site plan for the
Complex shall have been delivered to Lender.
(k) Construction Contract: Lender shall have received a copy of the
Construction Contract, certified by Borrower to be true and complete, and in all other respects
reasonably satisfactory to Lender. Upon Lender's request (which request may be made following
the closing of the Loan), the Construction Contract shall be assigned in satisfactory form to lender
as collateral security for the obligations of Borrower under the Loan Documents. The Construction
Contract shall require the Contractor to adhere to OSHA Lead in Construction Standard (29 C.F.R.
1926.62) when rehabilitating the premises.
(l) Architect's Agreement and Plans: Borrower shall have delivered a copy of
the Architect's Agreement and certified by Borrower to be true and complete, and in all other
respects reasonably satisfactory to Lender. The Architect's Agreement and the rights to use the
Plans shall, upon Lender's request (which request may be made following the closing of the Loan),
be assigned in satisfactory form to Lender as collateral security for the obligations of Borrower
under the Loan Documents.
(m) Plans: Lender shall have received the Plans for construction of the Complex,
in form and content reasonably satisfactory to Lender.
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(n) Soil Study: Borrower shall have completed and delivered to Lender a soil
study made by a registered engineer or professional soil testing firm, reasonably acceptable to
Lender, reflecting the condition of the soil and a certificate from the engineer or soil testing firm,
as required by Lender, stating that the Complex can be satisfactorily constructed on the Land in
accordance with the Plans without the necessity for any extraordinary land preparation, or if
extraordinary land preparation may be necessary, the estimated cost thereof.
(o) Appraisal: Upon completion of the Complex, Borrower shall provide
Lender with an appraisal of the Premises, in form, scope, amount, and content satisfactory to
Lender, and prepared by an appraiser satisfactory to Lender.
(p) Search for Security Interest in Personalty: A UCC-11 Search Report to the
effect that a search of the state records discloses no financing statements or security interests filed
and/or recorded against the Borrower or the Premises except for any such financing statements or
security interest filed and/or recorded to perfect the "permitted encumbrances" as defined in the
Mortgage.
(q) Corporate and Agency Documents: Borrower shall deliver to the Lender the
following documents:
(i) The Certificate of Limited Partnership of the Borrower and the
Articles of Organization of Borrower’s Managing General Partner, and all amendments thereof,
certified by the Secretary of State of Florida;
(ii) A good standing certificate of the Borrower and Borrower’s
Managing General Partner from the Secretary of the State of Florida;
(iii) The Amended and Restated Agreement of Limited Partnership of
Borrower (the “Partnership Agreement”) and the Operating Agreement of Borrower’s Managing
General Partner, including any amendments thereof;
(iv) Incumbency certificates specifying by name and title the officers
and members of Borrower’s Managing General Partner; and
(v) Certified resolutions of the members of Borrower’s Managing
General Partner authorizing the execution and delivery of this Agreement, the Mortgage, Note,
and all other documents necessary or desirable, for the consummation of the transactions
contemplated by this Agreement.
(r) Opinion of Borrower's Counsel: Prior to execution hereof, Borrower shall
deliver to the Lender an opinion of counsel for Borrower and addressed to the Lender, such opinion
to be reasonably satisfactory to the Lender, to the effect that:
(i) This Agreement and all instruments and documents required to be
delivered hereunder have been duly authorized, executed and delivered and are valid, binding and
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enforceable in accordance with their terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the right of creditors generally;
(ii) That Borrower is a limited partnership in good standing under the
laws of the State of Florida and has all the necessary power and authority to undertake its
obligations hereunder;
(iii) That there is no charter, partnership agreement or certificate of
partnership of Borrower and no provision of any existing mortgage, indenture, contract or
agreement known to such counsel binding on Borrower or affecting its property which would
conflict with or in any way prevent the execution, delivery and carrying out of the terms of this
Agreement;
(iv) Except as otherwise disclosed in writing, that to counsel's
knowledge there are no proceedings pending or threatened before any court or administrative
agency which will materially adversely affect the financial condition or operation of Borrower or
the Premises, including but not limited to bankruptcy, reorganization or insolvency proceeding or
any other debtor-creditor proceedings under the Bankruptcy Code or any similar statute, nor to
counsel's knowledge are there any financial circumstances within counsel's knowledge which
could lead to such proceedings.
(s) Insurance Policies: Borrower shall deliver to Lender copies of insurance
policies (or binders) evidencing the required coverage as set forth in the County Contract.
(t) Certificate Regarding Lobbying: Borrower shall have executed and
delivered to Lender the certificate regarding lobbying, a copy of which is attached to the County
Contract.
(u) Tax Credits: If Tax Credits are being used to finance the Premises, Borrower
shall provide evidence reasonably acceptable to Lender, for the financing of construction of the
Complex, by the Borrower, the Complex is anticipated, upon its completion and being placed in
service, and final cost certification to generate 4% Federal Low Income Housing Tax Credits ("Tax
Credits") in an amount allocated by the Florida Housing Finance Corporation.
(v) County Contract: Notwithstanding any other provisions of this Agreement
to the contrary, disbursement of the proceeds of the Loan shall be subject to the receipt of the fully
executed County Contract by and between Borrower and Lender and a duly executed Promissory
Note in the amount of the Loan and in favor of the Lender.
(w) Other Documents: Borrower shall deliver to the Lender such other
documents and information as the Lender may reasonably require.
6. EXPENSES. Borrower shall pay all fees and charges incurred in the procuring
and making of the Loan, and all other expenses incurred by the Lender during the term of the Loan.
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7. SPECIAL PROVISIONS APPLICABLE TO LOAN. Borrower expressly
agrees to the following terms and conditions:
(a) Except as set forth herein, Borrower shall set aside all of the residential units
(“Units”) in the the Complex in the following manner: five (5) of the Units must have rents which
are equal to or less than 30% of annual income for households at or below twenty-two percent
(22%) of area median income (“AMI”), minus tenant-paid utilities, twenty (20) of the Units must
have rents which are equal to or less than 30% of annual income for households at or below thirty
percent (30%) of AMI, minus tenant-paid utilities, sixty-four (64) of the Units must have rents
which are equal to or less than 30% of annual income for households at or below sixty percent
(60%) of AMI, minus tenant-paid utilities, and thirty (30) of the Units must have rents which are
equal to or less than 30% of annual income for households at or below eighty percent (80%) of
AMI, minus tenant-paid utilities. More details as to the set-aside requirements upon the Units shall
be set forth in the County Contract and Rental Regulatory Agreement.
(b) Borrower shall not discriminate on the basis of race, creed, religion, color,
sex, familial status, marital status, sexual orientation, pregnancy, age, ancestry national origin,
disability, gender identity or gender expression, status as a victim of domestic violence, dating
violence or stalking, or source of income in the lease, use or occupancy of any housing Complex
hereunder. Age discrimination and discrimination against minor dependents, except when Units
are specifically being held for the elderly, is also not permitted.
(c) Borrower shall ensure that all publicity and advertisements prepared and
released by Borrower or on behalf of Borrower during construction of the Complex, recognize
Lender as a participant in the funding for the Complex.
(i) Borrower shall take affirmative steps to procure supplies,
equipment, construction or services in connection with the
Improvements from minority and women-owned businesses, and to
provide these sources the maximum feasible opportunity to compete
for subcontracts to be performed in connection with the
Improvements. Affirmative steps shall include: Placing qualified
small and minority businesses and women's business enterprises on
solicitation lists;
(ii) Assuring that small and minority businesses, and women's business
enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by
small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
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(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of
the Department of Commerce; and
(vi) Requiring the prime contractor and subcontractors, if subcontracts
are to be let, to take the affirmative steps listed above in (i) through
(v) of this section.
(d) Borrower agrees to assign any proceeds to the County from any contract
between the county, its agencies or instrumentalities and the Borrower or any firm, corporation,
partnership or joint venture in which the Borrower has a controlling financial interest in order to
secure repayment of the Loan. "Controlling financial interest" shall mean ownership, directly or
indirectly to ten percent or more of the outstanding capital stock in any corporation or a direct or
indirect interest of ten percent or more in a firm, partnership or other business entity.
8. ADDITIONAL REPRESENTATIONS OF BORROWER. Borrower
represents to Lender as follows:
(a) Borrower is duly organized, active and in good standing as a limited
partnership under the laws of the State of Florida;
(b) Borrower has full power and authority to enter into the Loan Documents
and to consummate the transactions contemplated therein. The Loan Documents have been
approved by those persons having proper authority, and to the best of Borrower's knowledge, are
in all respects legal, valid and binding according to their terms;
(c) All budgets, schedules, information regarding funding sources, and all other
documents furnished to Lender in accordance with this Agreement, or the other Loan Documents
are true and correct in all material respects and accurately set forth the facts contained therein and
neither misstate any material fact nor, separately or in the aggregate, fail to state any material fact
necessary to make the statements made therein not misleading;
(d) All required utility services are available (or will be available) at tap-in
facilities at the boundary of the Complex over dedicated and accepted public rights of way, and
sufficient capacity has been unconditionally reserved and allocated to the Complex, including
water supply, sewage facilities, storm and sanitary sewer facilities, electric supply, gas supply, if
applicable, and telephone facilities, any required approvals of federal, state and local governmental
authorities have been obtained for all necessary connections to water supply and sewage treatment
facilities and the construction of water distribution and sewer collection facilities, subject only to
payment of the fees reflected therefor in Exhibit "C" hereto. The storm and sanitary sewage
disposal system, water system, and all mechanical systems of the Complex do (or when
constructed will) comply with all applicable environmental, pollution control and ecological laws,
ordinances, rules and regulations and all other Legal Requirements. The applicable environmental
protection agency, pollution control board, and/or other governmental agencies having jurisdiction
of the Premises have issued their permits for the construction, tap-on and operation of those
systems;
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(e) All streets, roads, highways and curb cut permits necessary for the full
utilization of the Premises have been or will be completed and dedicated to public use and accepted
by appropriate governmental authorities. Unrestricted access to the Premises will be provided by
a paved and publicly maintained public roadway;
(f) The completion and use of the Complex in accordance with the Plans
complies will comply fully with all Legal Requirements, and with all private limitations on the use
of the Complex, or any other condition, grant, easement, covenant, or restriction, whether recorded
or not. All necessary approvals, permits and licenses of private parties and governmental
authorities for the construction, operation, and use of the Premises have been or will be timely and
unconditionally obtained and are (or will be timely) in full force and effect, or if the present state
of construction of the Complex does not allow such issuance or if the same have not been issued
for any other reason disclosed to and approved by the Lender, then such approvals, permits and
licenses will be timely issued when required if the Complex is constructed pursuant to the Plans;
(g) The Architect's Agreement, Construction Contract and all commitments
from Funding Sources are unmodified and each is in full force and effect and all conditions to the
effectiveness or continuing effectiveness thereof required to be satisfied by the date hereof have
been satisfied. The Architect's Agreement and Construction Contract do or shall, in the aggregate,
cover all services, labor, material and equipment required by the Plans or necessary to complete
and operate the Complex;
(h) When completed in accordance with the Plans, the Complex will not
encroach upon any building line, setback line, sideyard line or other recorded or visible easement
or other easements of which the Borrower is aware which exists (or which Borrower has reason to
believe may exist) with respect to the Complex;
(i) The Plans are, in the aggregate, complete in all respects, containing all detail
requisite for the Complex which, when built and equipped in accordance therewith, shall be ready
for the intended use and occupancy thereof;
(j) No part of the Complex has been damaged or has been subjected to
condemnation or other proceedings, and no such proceedings have been threatened;
(k) There have been no material adverse changes in projected costs and
expenses and income of or from the Complex or any other features of the transactions
contemplated hereby as submitted to Lender;
(l) Except as previously disclosed in writing to Lender, no chattel mortgage,
bill of sale, security agreement, financing statement or other title retention agreement has been or
will be executed with respect to any personal property, chattel or fixture used in connection with
the construction, rehabilitation, operation or maintenance of the Complex or Improvements
without the consent of Lender, which consent shall not be unreasonably withheld;
- 14 -
(m) The consummation of the transactions hereby contemplated and the
performance of the obligations of Borrower under and by virtue of the Loan Documents will not
result in any breach of, or constitute a default under any lease, bank loan, credit agreement, or
other instrument to which Borrower is a party or which it may be bound or affected;
(n) Except as disclosed in writing, there are no actions, suits or proceedings
pending against Borrower or the Premises or to the knowledge of Borrower, circumstances which
could lead to such action, suits or proceedings against or affecting Borrower or the Premises, or
involving the validity or enforceability of any of the Loan Documents, before or by any
governmental authority, except actions, suits and proceedings which have been specifically
disclosed to and approved by Lender in writing; and to Borrower's knowledge it is not in default
with respect to any order, writ, injunction, decree or demand of any court or any governmental
authority;
(o) There is no default on the part of Borrower under this Agreement, the Note,
the Mortgage, or the County Contract, and no event has occurred and is continuing which with
notice, or the passage of time, or either, would constitute a default under any provision thereof;
(p) To the best of its knowledge, other than as set forth in the Reports (as such
term is defined in the Environmental Indemnity), Borrower is in compliance with all provisions of
the Federal Water Pollution Control Act, Comprehensive Environmental Response, Compensation
and Liability ("Superfund") Act of 1980, the Solid Waste Disposal Act, Chapter 376 of the Florida
Statutes, and other similar federal, state and local statutory schemes imposing liability on
Borrower relating to the generation, storage, impoundment, disposal, discharge, treatment, release,
seepage, emission, transportation or destruction of any sewage, garbage effluent, asbestos or
asbestos-containing materials, polychlorinated biphenyls (PCBs), toxic, hazardous or radioactive
materials, petroleum products, pesticides, smoke, dust, or any other form of pollution as such laws
are in effect as of the date of this Agreement and with any orders or judgments of any courts or
competent jurisdiction with respect thereto, and no assessment, notice of (primary or secondary)
liability or notice of financial responsibility, or the amount thereof, or to impose civil penalties has
been received by Borrower. Borrower has paid any environmental excise taxes, if any, imposed
upon either of them with respect to the Complex pursuant to Sections 4611, 4661 or 4681 of the
Internal Revenue Code of 1986, as amended from time to time;
(q) Except as specifically set forth in the Mortgage or herein, the Premises or
any part thereof shall not be sold, leased (except for leases in the ordinary course of business),
conveyed, mortgaged or encumbered (except for Permitted Encumbrances as set forth in the
Mortgage and Title Policy) in any way without the prior written consent of the Lender;
(r) Borrower will comply promptly with all federal, state, and local laws,
ordinances and regulations relating to the construction, use and leasing of the Premises and will
obtain and keep in good standing all necessary licenses, permits and approvals required or
desirable for construction and rehabilitation of the Complex;
(s) Except for transfers permitted under Section 13(r) hereof, Borrower shall
not consolidate with or merge into any other business entity, or permit another business entity to
- 15 -
merge into it, or voluntarily fail to maintain its current limited partnership or corporate status as
applicable;
(t) Borrower will not knowingly engage in any activity or enter into any
relationship which will give rise to any loan or brokerage commission with respect to the Loan,
and Borrower will indemnify the Lender from the claims of brokers arising by reason of the
execution hereto or the consummation of the transaction contemplated hereby.
(u) Borrower will do all acts and execute all documents for the better and more
effective carrying out of the intent and purpose of this Agreement, as the Lender shall reasonably
require from time to time, including but not limited to causing the execution of certain documents
by any contractor hired to construct the Improvements and will do such other acts necessary or
desirable to preserve and protect the collateral at any time securing or intending to secure the Note,
as the Lender may require.
9. DEFAULT. Upon the occurrence of any of the following events after applicable
notice and cure periods (the "Events of Default"), all obligations on the part of Lender to make any
Advance hereunder shall, if Lender elects, terminate, the Lender shall have the absolute right to
refuse to disburse any additional loan funds, and the Lender may at its option exercise any of its
remedies set forth herein, but the Lender may make any of the Advances or parts of Advances, or
direct the Disbursing Agent to do so, after the happening of any Event of Default without thereby
waiving the right to exercise such remedies and without becoming liable to make any further
Advance:
(a) Failure to Satisfy Conditions. If Borrower fails to, or is unable to, satisfy
or keep satisfied any conditions hereunder and fails to diligently proceed to cure any such failure
after notice thereof;
(b) Non-Payment of Principal or Interest. If Borrower fails to make any
required principal or interest payment under the Note within ten (10) days from the date such
payment is due, provided however, no event of default shall occur as a result of any payment not
made due to lack of Development Cash Flow;
(c) Bankruptcy. If there is filed by or against Borrower a petition in bankruptcy
or a petition for the appointment of a receiver or trustee of the property of Borrower, and such
petition is not dismissed within sixty (60) days of the date of filing, or if Borrower files a petition
for reorganization under any of the provisions of the Bankruptcy Code or of any similar state or
federal law, or if Borrower makes a general assignment for the benefit of creditors or makes any
insolvency assignment or is adjudicated insolvent by any court of competent jurisdiction;
(d) Breach of Covenants, Warranties and Representations. If any warranty or
representation made by Borrower in this Agreement or pursuant to the terms hereof shall at any
time be false or misleading in any material respect, or if Borrower shall fail to keep, observe or
perform any of the terms, covenants, representations, or warranties contained in this Agreement,
the Note, the Mortgage, the County Contract or any other document given in connection with the
Loan or the development of the Premises, provided that with respect to nonmonetary defaults, the
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Lender shall give written notice to Borrower, who shall have thirty (30) days after notice thereof
from Lender to cure, such time may be reasonably extended by Lender. The Borrower may have
up to ninety (90) days after notice from Lender, if the cure has not occurred within such thirty (30)
day period so long as the cure is commenced within such thirty (30) day period and diligently
pursued;
(e) Substantial Discontinuation of Construction. If there is a discontinuation of
construction or development work for a period of thirty (30) consecutive days which
discontinuation is without satisfactory cause; provided, however, that any discontinuation which
is the result of force majeure or other events outside the control of Borrower shall not be deemed
a default hereunder;
(f) Quality of Work. If the Complex is not constructed in a good and
workmanlike manner in substantial accordance with the Plans, unless such deviation is approved
by the Lender, the Limited Partner, the Architect, the Inspector, all other Funding Sources, and all
governmental authorities having jurisdiction over the Complex; or Borrower's failure to promptly
comply with any request by a governmental authority having jurisdiction over the Complex
concerning any matter related to the construction of the Complex or the development work
performed;
(g) Commencement and Completion Dates. If all conditions precedent to the
commencement of construction as may be required by this Agreement have not been met or if the
construction of the Improvements is not complete on or prior to the Completion Date, except where
the delays result from force majeure or other events outside the control of Borrower;
(h) Material Adverse Change of Borrower. If any material adverse change shall
occur in the financial condition of Borrower at any time during the term of the Loan from the
financial condition revealed in statements, if any, already presented to and accepted by Lender;
(i) Default Under Other Documents. If a default occurs under the County
Contract, Note, Mortgage, Rental Regulatory Agreement, Assignment of Lease, Rents and
Contract Rights, or Assignment of Construction Documents and the same is not cured after any
applicable notice and cure period;
(j) Default Under Other County Contract. If Borrower shall be in default of
any contract with the County or shall be in arrears regarding any payments due to the County under
any other contract or agreement, such default or arrearage shall constitute a default under this
Agreement.
10 REMEDIES OF THE LENDER. Upon the happening of an Event of Default,
and during the continuance thereof, the Lender may, at its option, upon written notice to Borrower:
(a) Commence an appropriate legal or equitable action to enforce performance
of this Agreement;
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(b) Subject to the right of any lenders with superior liens, take immediate
possession of the Complex and do all things necessary to fully complete the Complex, complete
the construction and equipping of the Complex and do anything in its sole judgment to fulfill the
obligations of the Borrower hereunder. Without restricting the generality of the foregoing, and for
purposes aforesaid, upon the occurrence and during the continuance of an Event of Default,
Borrower hereby appoints and constitutes Lender its lawful attorney-in-fact with full power of
substitution in the premises to complete construction and equipping of the Complex in the name
of Borrower to use unadvanced funds necessary under the Mortgage or which may be reserved or
escrowed or set aside for any purpose hereunder at any time, or to advance funds in excess of the
face amount of the Note to complete the Complex; to make changes in the Plans which shall be
necessary to complete the Complex in substantially the manner contemplated by the plans and to
take any and all other necessary actions to complete the Complex in a lien-free condition; to take
action and require such performance as it deems necessary under the performance bond, if any, to
be furnished hereunder and to make compromises with the surety or sureties thereunder, and in
connection therewith, to execute instruments of release and satisfaction; it being understood and
agreed that this power of attorney shall be a power coupled with an interest and cannot be revoked;
(c) Accelerate the payment of the Note and the Loan and any other sums
secured by the Mortgage, and commence appropriate legal and equitable action to foreclose the
Mortgage and collect all such amounts due the Lender;
(d) Appoint a Receiver, without regard to the solvency of the Borrower, for the
purpose of preserving the security, preventing waste, and to protect all rights accruing to Lender
by virtue of this Agreement and of the Mortgage, and expressly to make any and all further
improvements, whether onsite or offsite, as the Lender may determine to be necessary to complete
the development or construction of the Complex. All reasonable expenses incurred in connection
with the appointment of the Receiver, or in protecting, preserving or improving the security, shall
be charged against Borrower and shall be enforced as a lien against the security; or
(e) Exercise any other rights or remedies the Lender may have under the
Mortgage or other Loan Documents referred to in this Agreement which may be available under
applicable law.
11. NOTICE TO LIMITED PARTNER AND RIGHT TO CURE. Lender shall give
the Limited Partner notice of any default by Borrower under the terms of the Loan or under any of
the Loan Documents, and the Limited Partner shall be extended an opportunity to cure such
default, which cure period shall be a period of fifteen (15) calendar days longer than the period to
cure which is otherwise extended to Borrower. Lender agrees to accept or reject such cure on the
same basis as if provided by Borrower itself. The Limited Partner’s notice address is Bank of
America, N.A., MA5-100-04-11, 100 Federal Street, Boston, MA 02110, Attention: Tax Credit
Asset Mangaement (Vista Breeze), with a copy to Holland & Knight LLP, 10 St. James Avenue,
Boston, MA 02116, Attention: Sara C. Heskett, Esq.
12. SUBORDINATION. Lender's lien securing the Loan shall be a mortgage lien
fully subordinated to the lien of any lender with a mortgage that has a lien priority superior to that
of the Lender and any replacement thereof.
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13. GENERAL TERMS. The following shall be applicable throughout the period of
this Agreement or thereafter as provided herein:
(a) Rights of Third Parties. Except as provided herein, all conditions of the
Lender hereunder are imposed solely and exclusively for the benefit of the Lender and its
successors and assigns, and no other person shall have standing to require satisfaction of such
conditions or be entitled to assume that the Lender will make advances in the absence of strict
compliance with any or all conditions of Lender, and no other person shall under any
circumstances, be deemed to be a beneficiary of this Agreement or the Loan Documents, any
provisions of which may be freely waived in whole or in part by the Lender at any time if, in its
sole discretion, it deems it desirable to do so. In particular, the Lender makes no representations
and assumes no duties or obligations as to third parties concerning the quality of the construction
by Borrower of the Improvements or the absence therefrom of defects. The Limited Partner of
Borrower and the Trustee (if applicable) are the intended Third Party Beneficiaries of this
Agreement for the limited purpose outlined in this sub-section and shall have the right to seek to
enforce the provisions of Section 11 hereof.
(b) Borrower is not the Lender's Agent. Nothing in this Agreement, the Note,
the Mortgage, the County Contract or any other Loan Document shall be construed to make the
Borrower the Lender's agent for any purpose whatsoever, or the Borrower and the Lender partners,
or joint or co-venturers, and the relationship of the parties shall, at all times, be that of debtor and
creditor.
(c) The Lender Not Liable for Damage or Loss. All inspections and other
services rendered by or on behalf of the Lender shall be rendered solely for the protection and
benefit of the Lender. Neither Borrower nor any other third persons shall be entitled to claim any
loss or damage against the Lender or against its agents or employees for failure to properly
discharge their duties.
(d) The Lender Not Obligated to Insure Proper Disbursement of Funds to Third
Parties. Nothing contained in this Agreement, or any Loan documents, shall impose upon the
Lender any obligation (running to the Borrower) to oversee the proper use or application of any
disbursements and advances of funds made pursuant to the Loan.
(e) Indemnification. Borrower shall indemnify and hold harmless the Lender
from any liability, claims or losses incurred by Lender in favor of third parties resulting from the
disbursement of the Loan proceeds to Borrower or from the condition of the Premises, whether
arising during or after the term of the Loan, whether as a result of a claim made under this
Agreement, by the Lender under the County Contract(s) or otherwise. The Borrower shall
indemnify and hold harmless the County and its officers, employees, agents and instrumentalities
from any and all liability, losses or damages, including attorneys' fees and costs of defense, which
the County or its officers, employees, agents or instrumentalities may incur as a result of claims,
demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or
resulting from the performance of this Loan Agreement by the Borrower or its employees, agents,
servants, partners principals or subcontractors. Borrower shall pay all claims and losses in
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connection therewith and shall investigate and defend all claims, suits or actions of any kind or
nature in the name of the County, where applicable, including appellate proceedings, and shall pay
all costs, judgments, and attorney's fees which may issue thereon. Borrower expressly understands
and agrees that any insurance protection required by this Loan Agreement or otherwise provided
by Borrower shall in no way limit the responsibility to indemnify, keep and save harmless and
defend the County or its officers, employees, agents and instrumentalities as herein provided. This
provision shall survive the repayment of the Loan and shall continue in full force and effect so
long as the possibility of such liability, claims, or losses exists.
(f) Evidence of Satisfaction of Conditions. The Lender shall, at all times, be
free independently, in its discretion, to establish in good faith and to its satisfaction, the existence
or nonexistence of a fact or facts which are disclosed in documents or other evidence required by
the terms of this Agreement.
(g) Headings. The headings of the sections, paragraphs and subdivisions of this
Agreement are for the convenience of reference only, and shall not limit or otherwise affect any
of the terms hereof.
(h) Invalid Provisions to Affect No Others. If performance of any provision
hereof or any transaction related hereto is limited by law, then the obligation to be performed shall
be reduced accordingly; and if any clause or provision herein contained operates or would
prospectively operate to invalidate this Agreement in part, then the invalid part of said clause or
provision only shall be held for naught, as though not contained herein, and the remainder of this
Agreement shall remain operative and in full force and effect.
(i) Application of Interest to Reduce Principal Sums Due. In the event that any
charge, interest or late charge is above the maximum rate provided by law, then any excess amount
over the lawful rate shall be applied by the Lender to reduce the principal sum of the Loan or any
other amounts due the Lender hereunder.
(j) Governing Law. The laws of the State of Florida shall govern the
interpretation and enforcement of this Agreement.
(k) Number and Gender. Whenever the singular or plural number, masculine
or feminine or neuter gender is used herein, it shall equally include the others and shall apply
jointly and severally.
(l) Prior Agreement. To the extent necessary, this Agreement shall be deemed
to be an amendment to any prior loan agreement between Borrower and the Lender, and in the
event of a conflict between the terms of this Agreement and of any such prior agreement, including
the County Contract, the terms of this Agreement and the other Loan Documents shall govern.
(m) Waiver. If the Lender shall waive any provisions of the Loan Documents,
or shall fail to enforce any of the conditions or provisions of this Agreement, such waiver shall not
be deemed to be a continuing waiver and shall never be construed as such; and the Lender shall
thereafter have the right to insist upon the enforcement of such conditions or provisions.
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Furthermore, no provision of this Agreement shall be amended, waived, modified, discharged or
terminated, except by instrument in writing signed by the parties hereto.
(n) Notices. All notices from the Borrower to the Lender and the Lender to the
Borrower required or permitted by any provision of this agreement shall be in writing and sent by
registered or certified mail and addressed as follows:
TO BORROWER: Vista Breeze, Ltd.
3 Miami Central, 161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attn: Kenneth Naylor
COPY TO: Stearns Weaver Miller, et al.
150 West Flagler Street, Suite 2200
Miami, FL 33130
Attn: Brian J. McDonough, Esq.
COPY TO: Housing Authority of the City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attn: Miguell Del Campillo, Executive Director
Phone: (305) 532-6401, ext. 3020
Email: miguell@hacmb.org
COPY TO: Fox Rothschild LLP
500 Grant Street, Suite 2500
Pittsburgh, PA 15219
Attn: Michael H. Syme, Esq.
Email: msyme@foxrothschild.com
Phone: (412) 391-2450
TO LENDER: Miami-Dade County
111 N. W. 1st Street, 29th Floor
Miami, Florida 33128
Attn: County Mayor
COPY TO: Miami-Dade County
Public Housing and Community Development
701 N.W. 1st Court, 16th Floor
Miami, Florida 33136
Attn: Director
COPY TO: County Attorney's Office
111 N. W. 1st Street, Suite 2810
Miami, Florida 33128
Attn: Shannon Summerset-Williams, Esq.
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Such addresses may be changed by written notice to the other party.
(o) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding on the parties hereto and their heirs, legal representatives, successors and assigns; but
nothing herein shall authorize the assignment hereof by the Borrower.
(p) Counterparts. This Agreement may be executed in one or more counterparts
all of which shall constitute collectively but one and the same instrument.
(q) Expenses. Borrower shall pay all reasonable costs and expenses required
to satisfy the conditions of this Agreement or incidental to the Loan, including (i) all taxes and
recording expenses, including documentary stamp taxes, if any, and (ii) title insurance premiums
and costs, appraisals fees and survey costs.
(r) Changes to Limited Partnership/Limited Liability Company. The Limited Partner
of Borrower or its affiliate shall be permitted to remove a general partner thereof for cause with
the consent of the Lender. If the Limited Partner of Borrower exercises its right to remove a
general partner thereof, the Lender shall not unreasonably withhold its consent to the substitute
general partner (the “Substitute General Partner”) so long as such Substitute General Partner is not
a “Troubled Entity”. A Troubled Entity means the Substitute General Partner is (i) on the Lender’s
list of debarred contractors, which is the list compiled, maintained and distributed by the Lender’s
Department of Business Development, containing the names of contractors debarred under the
procedures of Section 10-38 of the Miami-Dade County Code, or (ii) otherwise deemed to be a
risk to Lender’s secured interests as secured by the Mortgage and other Loan Documents in
Lender’s reasonable judgment and discretion due to the Substitute General Partner’s (or a related
entity of Substitute General Partner’s) defaults on other projects, loans or contracts with Lender
or third parties or other risks, including but not limited to pending lawsuits, criminal investigations
or allegations of fraud or financial misconduct of the Substitute General Partner or its principals
or officers. Lender hereby consents to Borrower’s special limited partner or an affiliate of Limited
Partner as a Substitute General Partner, as long as such entity is not a Troubled Entity. The Limited
Partner, within a commercially reasonable time period, shall provide to the Lender notice of such
Substitute General Partner and certification that said Substitute General Partner is not on the
Lender’s debarment list. Notwithstanding the above, the Substitute General Partner shall assume
all of the rights and obligations of the original general partner under all of the Loan Documents,
including, without limitation, any guaranties executed by the Borrower’s Managing General
Partner for the benefit of Lender. Nothing herein shall be construed as restricting the transfer of
Limited Partner’s interest, either directly or indirectly, to or in the Borrower. Additionally, Lender
hereby consents to the transfer of any Limited Partner ownership interests in the Borrower, and
copies of the transfer or amendment documents are delivered to Lender. In the event that the
Limited Partner must divest its interest in the Borrower in order to comply with the federal laws
and regulations that govern banks, the consent of the County shall not be required, but notice of
such divestment shall be provided to the County. Lender hereby also consents to (i) the
contemplated change in Borrower’s organizational structure whereby Vista Breeze HACMB, Inc.,
a Florida nonprofit coporation, shall become the sole General Partner of Borrower and the
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Managing General Partner (APC Vista Breeze, LLC) will be changed to the Special Limited
Partner in order for the Borrower to qualify for an Ad Valorem Tax Exemption pursuant to Section
196.1975 of the Florida Statutes; (ii) the contemplated change in Borrower’s organizational
structure whereby APC Vista Breeze, LLC may withdraw from the Borrower pursuant to Section
7.1 of the Borrower’s Partnership Agreement; (iii) the exercise of the Housing Authority of the
City of Miami Beach or its affiliate of the right of first refusal to acquire the Premises or the
Limited Partner’s interest in the Borrower pursuant to that certain Right of First Refusal
Agreement dated as of the date hereof; and (iv) the exercise of Vista Breeze HACMB, Inc. or its
affiliate of the purchase option to acquire the Premises or the Limited Partner’s interest in the
Borrower pursuant to that certain Purchase Option Agreement dated as of the date hereof.
(s) Review of this Agreement. Each party hereto represents and warrants that
they have consulted with their own attorney concerning the terms contained in this Agreement.
No inference, assumption, or presumption shall be drawn from the fact that one party or its attorney
prepared this Agreement.
(t) Compliance with Applicable Law. Borrower shall comply with any and all
applicable federal, state, and local laws, regulations, and ordinances (“laws”) pertaining to this
Agreement, including but not limited to Section 119.0701, Florida Statutes if applicable, and any
and all laws relating to background screening, if applicable.
(u) Waiver of Jury Trial. BORROWER WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION, WHETHER ARISING IN CONTRACT OR TORT,
BY STATUTE OR OTHERWISE, IN ANY WAY RELATED TO THIS LOAN. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER'S EXTENDING
CREDIT TO BORROWER AND NO WAIVER OF LIMITATION OF THE LENDER'S
RIGHTS UNDER THIS PARAGRAPH SHALL BE EFFECTIVE UNLESS IN WRITING
AND MANUALLY SIGNED ON THE LENDER'S BEHALF.
(SIGNATURES APPEAR ON THE FOLLOWING PAGES)
EXHIBIT "A"
LEGAL DESCRIPTION
That leasehold estate created by that Second Amended and Restated Ground
Lease, by and between Vista Breeze, Ltd., a Florida limited partnership, and the
Housing Authority of The City of Miami Beach, a public body corporate and
politic, as evidenced by that Amended and Restated Memorandum of Lease to be
recorded over the following described lands:
PARCEL 1:
LOT 3, 4 and 5, Block 55, OF NORMANDY GOLF COURSE, ACCORDING
TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 44, AT PAGE 62,
OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA.
PARCEL 2:
LOTS 6, 7 and 8, BLOCK 56, NORMANDY GOLF COURSE SUBDIVISION,
ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 44,
PAGE 62, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY,
FLORIDA.
EXHIBIT "B"
CONTRACT
[Attached]
1
Project Name: Vista Breeze
Project Type: New Construction-Elderly
Address: 175 and 280 South Shore Drive, Miami Beach, Florida 33141
Resolution# R-285-23
FY 2022 REQUEST FOR APPLICATION (RFA)
AFFORDABLE HOUSING FUNDING AGREEMENT
BETWEEN
MIAMI-DADE COUNTY
And
VISTA BREEZE, LTD.
This Contract (referred to herein as “Contract” or “Agreement”), by and between MIAMI-
DADE COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "County"
and VISTA BREEZE, LTD., a Florida Limited Partnership, hereinafter referred to as "Developer"
and having offices at 161 NW 6TH Street, Suite 1020, Miami, Florida 33136, states conditions and
covenants for the rendering of housing activities hereinafter referred to as "Activities" for the County
through its Miami-Dade County Department of Public Housing and Community Development,
hereinafter referred to as “PHCD” or the "Department," and having its principal offices at 701 N.W.
1 Court, 16th Floor, Miami, Florida 33136, collectively referred to as the “Parties.”
WHEREAS, the Home Rule Charter authorizes Miami-Dade County to provide for the
uniform health and welfare of the residents throughout the County and further provides that all
functions not otherwise specifically assigned to others under the Charter shall be performed under
the supervision of the Miami-Dade County Mayor; and
WHEREAS, the Developer agrees that it will develop activities of value to the County and
has demonstrated an ability to provide these activities; and
WHEREAS, the County is desirous of obtaining such activities of the Developer, and the
Developer is desirous of providing such activities; and
WHEREAS, the County has appropriated up to $5,950,000.00 FY2022 SURTAX funds,
or other source(s) of funding that the County in its sole discretion shall determine, to the
Development named Vista Breeze located at 175 and 280 South Shore Drive, Miami Beach,
Florida 33141; and
WHEREAS, the County shall be obligated to provide those funds only after the Developer
has complied with the all of the terms of this Contract and after the Developer has closed on those
funds by executing a Mortgage, Note, covenants running with the land guaranteeing continued
affordability of the Development, and various other loan documents required by the County in its
sole discretion; and
WHEREAS, this Contract is the complete agreement between the County and the
Developer concerning the funding detailed herein, and may not be changed in writing, verbally, or
otherwise by any employee or representative of the County or any other person purporting to act
on behalf of the County except that the terms may be changed by a writing signed by the Mayor of
the County or the Mayor’s designee; and
WHEREAS, nothing in this Contract shall in any way be utilized to request documentation
relating to or authorizing consideration of a proposer's social, political, or ideological interests when
determining if the proposer is a responsible vendor or give a preference to a proposer based on
the proposer's social, political, or ideological interests,
2
NOW, therefore, in consideration of the mutual covenants recorded herein, the parties
hereto agree as follows:
ARTICLE I
Indemnification
The County does not and shall not assume any liability for the acts, omissions to act or negligence
of the Developer, its agents, servants or employees; nor shall the Developer exclude liability for its
own acts, omissions to act, or negligence arising out of the Developer’s performance pursuant to
this Agreement. The Developer shall indemnify and hold harmless the County and its officers,
employees, agents and instrumentalities from any and all liability, losses or damages, including
attorneys’ fees and costs of defense, which the County or its officers, employees, agents or
instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings
of any kind or nature arising out of, relating to or resulting from the performance of this Agreement
by the Developer or its employees, agents, servants, partners principals or subcontractors. The
Developer shall pay all claims and losses in connection therewith and shall investigate and defend
all claims, suits or actions of any kind or nature in the name of the County, where applicable,
including appellate proceedings, and shall pay all costs, judgments, and attorney’s fees which may
issue thereon. The Developer expressly understands and agrees that any insurance protection
required by this Agreement or otherwise provided by the Developer shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the County or its officers,
employees, agents and instrumentalities as herein provided. Nothing herein is intended to serve
as a waiver of sovereign immunity by the County nor shall anything herein be construed as consent
by the County to be sued by third parties in any matter arising out of this contract. The provisions
of this section survive the termination or expiration of this agreement.
ARTICLE II
Insurance
At the time of Construction loan closing, which is defined as the date on which the loan agreement
is executed by both the Miami-Dade County Mayor or the County Mayor’s Designee and the
Developer, the Developer shall furnish to the Department’s Loan Processing Division, 701 N.W. 1
Court, 14th floor, Miami, Florida 33136, relevant certificate(s) of Insurance evidencing insurance
coverage as detailed in the Scope of Service. (Attachment A) The effective coverage start date
of applicable insurances shall not be later than the date of the construction loan closing. The
Developer shall provide Builder’s Risk Insurance and/or Flood Insurance (if applicable) upon the
issuance of the Notice to Proceed with an effective date for coverage commencing on the Notice
to Proceed date.
ARTICLE III
Conflict of Interest
The Developer shall abide and be governed by Miami-Dade County Ordinance No. 72-82 (Conflict
of Interest Ordinance), as amended, which is incorporated herein by reference as if fully set forth,
in connection with its contract obligations hereunder.
The Developer represents that:
a) No officer, director, employee, agent, or other consultant of the County or a member
of the immediate family or household of the aforesaid has directly or indirectly received
or been promised any form of benefit, payment or compensation, whether tangible or
intangible, in connection with the grant of this Agreement.
Identity of Interest relationships exist when the owner of one or more of the officers,
directors, stockholders, or partners of a corporation or partnership owning or selling the
property has any family tie or is an officer, director, stockholder or partner of the general
contractor or lender, or has a financial interest whatsoever in the general contractor or
lender.
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b) There are no undisclosed persons or entities interested with the Developer in this
Agreement. This Agreement is entered into by the Developer without any connection
with any other entity or person making a proposal for the same purpose, and without
collusion, fraud or conflict of interest. No elected or appointed officer or official,
director, employee, agent or other consultant of the County, or of the State of Florida
(including elected and appointed members of the legislative and executive branches
of government), or a member of the immediate family or household of any of the
aforesaid:
i) is interested on behalf of or through the Developer directly or indirectly in any
manner whatsoever in the execution or the performance of this Agreement, or in
the services, supplies or work, to which this Agreement relates or in any portion of
the revenues; or
ii) is an employee, agent, advisor, or consultant to the Developer or to the best of the
Developer’s knowledge any subcontractor or supplier to the Developer.
c) Neither the Developer nor any officer, director, employee, agency, parent, subsidiary,
or affiliate of the Developer shall have an interest that is in conflict with the Developer’s
faithful performance of its obligation under this Agreement; provided that the County,
in its sole discretion, may consent in writing to such a relationship, provided the
Developer provides the County with a written notice, in advance, which identifies all
the individuals and entities involved and sets forth in detail the nature of the relationship
and why it is in the County’s best interest to consent to such relationship.
Where a Developer intends to use an affiliated entity for construction work, either as a
general contractor or subcontractor, PHCD may require a third party non-affiliated
construction professional, to be selected by PHCD, to review cost estimates and
evaluate whether or not such estimates are less than costs that may be incurred by
use of non-affiliated entities. An affiliated entity is one in which the Developer, an
officer, director, employee, agency, parent, subsidiary of the Developer has an
ownership interest.
d) The provisions of this Article are supplemental to, not in lieu of, all applicable laws with
respect to conflict of interest. In the event there is a difference between the standards
applicable under this Agreement and those provided by statute, the stricter standard
shall apply.
e) In the event Developer has no prior knowledge of a conflict of interest as set forth
above and acquires information that may indicate that there may be an actual or
apparent violation of any of the above, Developer shall promptly bring such information
to the attention of the County’s Project Manager. Developer shall thereafter cooperate
with the County’s review and investigation of such information and comply with the
instructions Developer receives from the County’s Project Manager in regard to
remedying the situation.
Related Parties
The Developer shall report to the Department the name, purpose, and any other relevant
information in connection with any related party transaction. A Related Party means any person,
corporation, partnership, or other business entity (a) which has overlapping boards of directors, (b)
which has a direct or indirect ownership interest in Developer, (b) which has a parent or principal
thereof which has a direct or indirect ownership interest in Developer, (c) whose members were
appointed by Developer, or (d) which the County deems in its sole discretion to be a Related or
Affiliated Party of the Developer. The Developer shall report this information to the Department
upon forming the relationship or if already formed, shall report it immediately. Any supplemental
information shall be reported quarterly in the required Progress Report. This provision shall be
construed broadly to the benefit of the County.
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The Developer shall submit to the Department, within five (5) business days of execution this
contract, all updated Conflict of Interest affidavits, Related Party Disclosure statements, list of
current Board members, and list of all business associations with the following documents:
Original contract or its subsequent amendments.
Requests for budget revisions.
Requests for approval of subcontracts.
Material non-compliance with the above requirements will be considered a breach of contract,
which will, if not cured within twenty (20) business days’ Notice from the County, result in the
immediate termination of the Contract, the recovery of the entire funding award, and the
disqualification of funding through the Department for a period of three (3) years.
ARTICLE IV
Compliance with Federal, State and Local Laws
The Developer agrees to abide by Chapter ll-A, Code of Miami-Dade County ("County Code"), as
amended, applicable to non-discrimination in employment, housing and public accommodation on
the basis of race, color, religion, ancestry, national origin, sex, pregnancy, age, disability, marital
status, familial status, gender identity, gender expression, sexual orientation, actual or perceived
status as a victim of domestic violence, dating violence or stalking, or source of income.
.
The Developer agrees that it is in compliance with the Domestic Violence Leave, codified as 11A-
60 et. seq. Code of Miami-Dade County, which requires an employer, who in the regular course of
business has fifty (50) or more employees working in Miami-Dade County for each working day
during each of twenty (20) or more calendar work weeks to provide domestic violence leave to its
employees. Failure to comply with this local law may be grounds for voiding or terminating this
Contract or for commencement of debarment proceedings against Provider.
Domestic Violence Leave Affidavit: Prior to entering into any contract with the County, a firm
desiring to do business with the County shall, as a condition of award, certify that it is in compliance
with the Domestic Leave Ordinance, 99-5 and Section 11A-60 of the Miami-Dade County Code.
This Ordinance applies to employers that have, in the regular course of business, fifty (50) or more
employees working in Miami Dade County for each working day during each of twenty (20) or more
calendar work weeks in the current or preceding calendar year. In accordance with Resolution No.
R-185-00, the obligation to provide domestic violence leave to employees shall be a contractual
obligation. The County shall not enter into a contract with any firm that has not certified its
compliance with the Domestic Leave Ordinance. Failure to comply with the requirements of
Resolution No. R-185-00, as well as the Domestic Leave Ordinance may result in the contract being
declared void, the contract being terminated and/or the firm being debarred.
The Developer agrees, to the extent applicable, to abide by the requirements as set forth in
Implementing order 14-26 and Section 2-11.16 of the Code of Miami Dade County.
The Developer agrees to classify workers properly for Internal Revenue Code purposes and
maintain proper documentation to support worker classification and to ensure that its contractors
and subcontractors are also classifying workers properly.
Code of Business Ethics: In accordance with Section 2-8.1(i) Code of Miami-Dade County, each
person or entity that seeks to do business with Miami-Dade County shall adopt a Code of Business
Ethics (“Code”) and shall, prior to execution of any contract between the contractor and the County,
submit an affidavit stating that the contractor has adopted a Code that complies with the
requirement of Section 2-B.1(I) Code of Miami-Dade County (Form A-12). Any person or entity
that fails to submit the required affidavit shall be ineligible for contract award.
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Pursuant to Section 287.133(2)(a) Florida Statutes, a person or affiliate who has been placed on
the convicted vendor list following a conviction for a public entity crime may not submit a contract
to provide any goods or services to a public entity, may not submit a contract with a public entity
for the construction or repair of a public building or public work, may not submit leases of real
property to a public entity, may not be awarded or perform work as a contractor, supplier,
subcontractor, or consultant under a contract with any public entity, and may not transact business
with any public entity in excess of the threshold amount provided in Section 287.017 Florida
Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list.
Where applicable, the Developer agrees to abide and be governed by Titles VI and VII, Civil Rights
Act of 1964 (42 USC 2000 D and E) and Title VIII of the Civil Rights Act of 1968, as amended,
which provides in part that there will not be discrimination of race, color, sex, religious background,
ancestry or national origin in performance of this Contract, in regard to persons served, or in regard
to employees or applicants for employment. It is expressly understood that upon receipt of
evidence of such discrimination, the County shall have the right to terminate said Contract.
The Developer agrees to abide and be governed by the Age Discrimination Act of 1975, 42 USC,
as amended, which provides in part that there shall be no discrimination against persons in any
area of employment because of age.
The Developer agrees to abide and be governed by Section 504, of the Rehabilitation Act of 1973,
as amended, 29 USC 794, which prohibits discrimination on the basis of handicap.
The Developer agrees to abide and be governed by the requirements of the Americans with
Disabilities Act (ADA).
Americans with Disabilities Act (ADA) of 1990 - The Developer shall attest to and submit the
required Disability Non-Discrimination Affidavit assuring compliance with all applicable
requirements of the laws listed below, including but not limited to, those provisions pertaining to
employment, provision and program services, transportation, communications, access to facilities,
renovations, and new construction.
If any attesting firm, or any owner, subsidiary, or other firm affiliated with or related to the attesting
firm, is found by the responsible enforcement agency, the Courts or the County to be in violation of
the Acts, the County will conduct no further business with such attesting firm. Any contract entered
into based upon a false affidavit, as listed below, and submitted pursuant to this resolution shall be
voidable by the County:
Code of Business Ethics Affidavit
Miami-Dade County Affidavits
State Public Entity Crimes Affidavit
If any attesting firm violates any of the Acts below during the term of any Contract such firm has
with the County, such Contract shall be voidable by the County, even if the attesting firm was not
in violation at the time it submitted its affidavit.
The applicable Acts are as follows:
1. The Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat 327, 42
U.S.C. 12101-12213 and 47 U.S.C. Sections 225 and 611 including Title I, Employment;
Title II, Public Services; Title III, Public Accommodations and Services Operated by Private
Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions.
2. The Rehabilitation Act of 1973, 29 U.S.C. Section 794;
3. The Federal Transit Act, as amended 49 U.S.C. Section 1612;
4. The Fair Housing Act as amended, 42 U.S.C. Section 3601-3631.
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Developer acknowledges that it has received County funds or other incentives that are being used
for the acquisition, rehabilitation, or construction of affordable rental housing. Therefore, , as a
condition of receiving County funds or other incentives, Developer agrees to comply with all
applicable state, federal and local laws, including but not limited to, the Florida Residential Landlord
and Tenant Act, as codified in Chapter 83, Part II, Florida Statutes (“Landlord Tenant Act”), and
other applicable laws. In the event Developer is found by the County, in its sole discretion, to have
violated Section 83.67 of the Landlord Tenant Act or other applicable laws, by engaging in any
prohibited activities as set forth therein, including, but not limited to, (i) terminating or interrupting
any utility service furnished to the tenant, including, but not limited to: water, heat, light, electricity,
gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the
control of, or payment is made by, Developer; (ii) preventing a tenant from gaining reasonable
access to their dwelling unit by any means, including, but not limited to, changing the locks or using
any bootlock or similar device; (iii) removing the outside doors, locks, roof, walls, or windows of the
unit except for purposes of maintenance, repair, or replacement; or (iv) removing a tenant’s
personal property from their dwelling unit unless such action is taken after surrender, abandonment,
recovery of possession of the dwelling unit due to the death of the last remaining tenant or a lawful
eviction, Developer shall be deemed to have violated the terms of the Loan Documents and be in
breach of same.
Developer further shall comply with Executive Order 11-116, which supersedes Executive Order
11-02, and section 448.095, Florida Statutes, which require Developer, and any of its
subcontractor, to register with and use the E-Verify system to verify the work authorization status
of all new employees of the Developer or subcontractor prior to the execution of this Agreement. If
Developer enters into a contract with a subcontractor, the subcontractor must provide Developer
with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with
an unauthorized alien. Developer shall maintain a copy of such affidavit for the duration of the
contract. In the event the County, Developer, or subcontractor has a good faith belief that a person
or an entity with which it is contracting has knowingly violated section 448.09(1), Florida Statutes,
the County, Developer, subcontractor shall terminate the contract with the person or entity. In the
event the County has a good faith belief that a subcontractor knowingly violated this subsection,
but Developer otherwise complied with this subsection, the County shall promptly notify Developer
and shall order Developer to immediately terminate the contract with the subcontractor. In the event
the County terminates this Agreement for the reasons stated herein, Developer may not be
awarded a public contract with the County for at least one (1) year after the date on which this
Agreement was terminated, and Developer will be liable for any additional costs incurred by the
County as a result of the termination of this Agreement.
ARTICLE V
Notices
The County and Developer mutually agree:
1. That written notice addressed to the Department and mailed or delivered to the address
appearing on page of this Contract and written notice addressed to the Developer and
mailed or delivered to the address appearing on page 1 of this Contract shall constitute
sufficient notice to either party to comply with the terms of this Contract.
2. Any notices of alterations, variations, modifications or waivers of provisions of this Contract
shall only be valid when they have been reduced to writing, duly approved and signed by
both Parties and shall be attached and incorporated in this Contract. This Contract
contains all the terms and conditions agreed upon by the parties. No other contract, oral
or otherwise, regarding the subject matter of this Contract shall be deemed to exist or bind
any of the parties hereto.
3. The Department’s representatives for this Contract are the PHCD Project Managers.
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4. In the event that any of the information required by the provisions of this Article is changed
by either of the Parties after the execution of this Contract, the affected Party shall give
notice in writing within five (5) days to the other Party of the amended pertinent information,
which shall be attached and incorporated into this Contract.
ARTICLE VI
Autonomy
The Parties agree that this Contract recognizes the autonomy of and stipulates and implies no
affiliation between the contracting parties. It is expressly understood and intended that the
Developer is only a recipient of funding support and is not an agent, employee, servant or
instrumentality of the County.
The Developer is, and shall be, in the performance of all work services and activities under this
Agreement, an independent contractor, and not an employee, agent or servant of the County. All
persons engaged in any of the work or services performed pursuant to this Agreement shall at all
times, and in all places, be subject to the Developer’s sole direction, supervision and control. The
Developer shall exercise control over the means and manner in which it and its employees perform
the work, and in all respects the Developer’s relationship and the relationship of its employees to
the County shall be that of an independent contractor and not as employees, servants or agents
of the County.
The Developer does not have the power or authority to bind the County in any promise, agreement
or representation other than specifically provided for in this Agreement.
Nothing in this Agreement shall be construed for the benefit, intended or otherwise, of any third
party.
ARTICLE VII
Term
Both parties agree that the effective term of this Contract shall begin on December 15, 2023. This
Agreement shall expire on the later of December 14, 2025 or 30 days after the submittal of the
last construction draw pursuant to the Loan Agreement between Miami-Dade County and the
Developer.
ARTICLE VIII
Reporting on Financial Status, Bankruptcy, Real Property, or Personal Property
Developer shall notify the County in writing within ten (10) days of the occurrence of any of the
following as to Developer or any Related or Affiliated Parties:
a. Any anticipated or pending lis pendens, foreclosure action, arrearage, default, late
payment regarding any property of Developer or Related or Affiliated Parties, including properties
not related to this Agreement. Developer shall also provide the County with a copy of all court
filings, notices of default, arrearage or late payment, or any other documents relevant to the
disclosures required herein.
b. Any legal encumbrance on the Property not permitted in writing by the County.
c. Any default or arrearage on any loan, Note or other debt or obligation for which
the Property is security.
d. Any anticipated or pending bankruptcy, restructuring, dissolution, reorganization,
appointment of a trustee or receiver.
e. Any action, activity, facts, or circumstances that would materially impair
performance by Developer of all the terms and conditions of this Agreement.
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Failure to comply with these reporting requirements shall constitute a default and shall
entitle the County to seek any and all remedies available at law, equity and pursuant to this
Agreement.
ARTICLE IX
Breach of Contract, County Remedies and Damages
A. Breach. The Developer shall have breached this Contract if the Developer fails to fulfill
each and every provision of this Contract and the Attachments, and fails to provide the
services outlined in the Scope of Services (Attachment A) within the timeframes set forth
by this Contract.
B. County Remedies If the Developer breaches this Contract, the County will notify the
Developer of the breach within twenty (20) business days of the discovery of the breach. If
the Developer fails to correct the breach within thirty (30) days of the County notification,
the County may pursue any or all of the following remedies:
1. Terminate this Contract by giving written notice to the Developer of such
termination and specifying the effective date thereof at least ten (10) days before
the effective date of termination. In the event of termination, the County may: (a)
request the return of all finished or unfinished documents, data studies, surveys,
drawings, maps, models, photographs, reports prepared, and capital equipment
secured by the Developer with County funds under this Contract; (b) seek
reimbursement of County funds allocated to the Developer under this Contract;
and/or (c) terminate or cancel any other contracts entered into between the
County and the Developer. The Developer shall be responsible for all direct and
indirect costs associated with such termination, including attorney's fees.
2. Suspend payment in whole or in part under this Contact by providing written notice
to the Developer of such suspension and specifying the effective date thereof, at
least ten (10) days before the effective date of suspension. If payments are
suspended, the County shall specify in writing the actions that must be taken by
the Developer as conditions precedent to resumption of payments, and shall
specify a date for compliance. The County may also suspend any payments, in
whole or in part, under any other contracts entered into between the County and
the Developer. The Developer shall be responsible for all direct and indirect costs
associated with such suspension, including attorney's fees.
3. Seek enforcement of this Contract including but not limited to filing an action with
a court of appropriate jurisdiction. The Developer shall be responsible for all direct
and indirect costs associated with such enforcement, including attorney's fees.
4. Debar the Developer from future County contracting.
5. Any other remedy available at law or equity.
C. Damages Sustained. Notwithstanding the above, the Developer shall not be relieved of
liability to the County for damages sustained by the County by virtue of any breach of the
Contract, and the County may withhold any payments due to the Developer under this and
any other contract the Developer has with the County, until such time as the exact amount
of damages due the County is determined. The County may also pursue any remedies
available at law or equity to compensate for any damages sustained by the breach. The
Developer shall be responsible for all direct and indirect costs associated with such action,
including attorney's fees.
ARTICLE X
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Termination
The Miami-Dade County Mayor or the Mayor’s designee is authorized to terminate this Contract on
behalf of the County. The Mayor or the Mayor’s designee may terminate this Contract for the
following reasons (provided, that upon recording of the mortgage, the remedies set forth in such
mortgage and the loan documents associated therewith will control):
I. At Will. This Contract may be terminated by the County upon no less than
ten (10) working days’ notice when the County determines, in the sole and
absolute discretion of the County, that it would be in the best interest of the
County. Said notice shall be delivered by certified mail, return receipt
requested, or in person with proof of delivery.
II. For Convenience. In whole or in part, when both parties agree that the
continuation of the activities would not produce beneficial results
commensurate with the further expenditure of funds. Both parties shall agree
upon the termination conditions.
III. Due to Lack of Funds. In the event of a funding short-fall, or a reduction in
the funding appropriations, or should funds to finance this Contract become
unavailable, the County may terminate, in its sole discretion and absolute
authority, this Contract upon no less than twenty-four (24) hours written
notification to the Developer. Said notice shall be delivered by certified mail,
return receipt requested, or in person with proof of delivery. The County shall
be the final authority to determine whether or not funds are available. The
County may at its discretion terminate, renegotiate and/or adjust the
Contract award, whichever is in the best interest of the County.
IV. Due to Substantial Funding Reduction. In the event of a substantial funding
reduction of the allocation to the Developer through Board of County
Commissioners’ (BCC) action, the Developer may, at its discretion, request
in writing from the Director of the Department a release from its contractual
obligations to the County. The Director of the Department will review the
effect of the request on the community and the County prior to making a final
determination.
V. Insufficient Progress. In whole or in part, when the County determines in its
sole and absolute discretion that the Developer is not making sufficient
progress towards development of the Project. Insufficient progress shall
include but not be limited to: no construction, plans processing, inspections,
and/or administrative funding submissions within sixty (60) days of execution
of this Contract, thereby endangering the ultimate Contract performance or
is not materially complying with any term or provision of this Contract.
VI. Bankruptcy. If, during the term of any contract the Developer has with the
County, the Developer becomes involved as a debtor in a bankruptcy
proceeding, or becomes involved in a reorganization, dissolution, or
liquidation proceeding or if a trustee or receiver is appointed over all or a
substantial portion of the property of the Developer under federal bankruptcy
law or any state insolvency law.
VII. Foreclosure. If, during the term of any contract the Developer has with the
County, the Developer is the subject of a pending or anticipated lis pendens,
anticipated late payment, pending or anticipated late payment, in default,
arrears, or becomes involved in a foreclosure proceeding under federal or
state law over all or a substantial portion of property owned by the
Developer.
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VIII. Disclosure. If, during the term of any contract the Developer has with the
County, the Developer fails to report within ten (10) days any actions,
activities, facts, or circumstances described herein and/or that would
materially impede the Developer from fulfilling the terms of this contract.
Penalties for Fraud, Misrepresentation, Material Misstatement, or Criminal Conviction
In accordance with the Code of Miami-Dade County, Section 2-8.4.1, and other County policies, if
Developer or any individual, corporation, firm, partnership, joint venture or other business entity in
which Developer or its principals has a Controlling Financial Interest attempts to meet its
contractual obligations with the County under this Agreement or any other County agreement or
County program through fraud, misrepresentation or material misstatement, or is convicted of fraud,
bribery or any other corrupt or criminal act in connection with any County program or County
agreement, the County shall have the sole and absolute discretion to terminate this Agreement and
may terminate or cancel any other agreements which Developer or such individual, corporation,
firm, partnership, joint venture or other business entity in which Developer or its principals has a
Controlling Financial Interest has with the County. Such individual or entity shall be responsible for
its own direct and indirect costs associated with such termination or cancellation, including
attorney's fees. The foregoing notwithstanding, any individual, corporation, firm, partnership, joint
venture or other business entity who attempts to meet it contractual obligations with the County
through fraud, misrepresentation or material misstatement may be disbarred from County
contracting for up to five (5) years. For the purposes of this section, "controlling financial interest"
shall mean ownership, directly or indirectly to ten percent or more of the outstanding capital stock
in any corporation or a direct or indirect interest of ten percent or more in a firm, partnership or
other business entity.
Payment Settlement
If termination occurs, the Developer will be paid for allowable costs incurred in carrying out activities
required by this Contract up to the date and time of termination. Allowable costs shall include only
those costs expended with prior written authorization of the County and only those costs made to
appropriately licensed and insured persons or entities operating lawfully within Miami-Dade County.
No Payment of Subcontractors
In no event shall County funds be advanced by the County directly to any subcontractor hereunder,
nor shall the Developer advance funds to any party.
ARTICLE XI
Amount Payable
Subject to available funds, the maximum amount payable under this Contract shall not exceed the
loan amount of $5,950,000.00 FY2022 funds. The parties agree that should funding to the County
be reduced, or the County determines that funding in amounts less than those set forth herein are
needed for completion of the project, the amount payable under this Contract may be
proportionately reduced at the option and sole discretion and authority of the County, provided that
once the mortgage is recorded, the loan documents will control.
ARTICLE XII
Program
The Developer agrees to render services in accordance with the Scope of Services that is
incorporated herein and attached hereto as Attachment A.
ARTICLE XIII
Payment
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The County agrees to process payment requests within thirty (30) days of receipt for payment to
Developer for services rendered under this Contract and the Loan Documents which the
Developer shall execute and perfect in accordance with the payment schedule outlined below.
The Developer agrees to submit payment requests accompanied by such documentation as
required by the Department. Any costs incurred by the Developer prior to the beginning of the
term or award approval date by the County, will not be reimbursed by the County.
Developer’s fees paid with Surtax funds cannot be higher than eighteen percent (18%) of the total
project funding amount allocated to the development. Consulting fees for application consultants,
construction management or supervision consultants must be paid out of the Developer’s fees.
Developer’s fees will be paid in accordance with the development progress and percentage of
construction completed. If Surtax funds are drawn last, they may be used for payment of the
eligible amount of fee owed.
Method of Payment:
All Payments under this Contract shall be on a reimbursement basis only and the Developer
shall be paid as described below:
1. Reimbursements shall be made upon successful submission of a Request for Draw, in the
manner stipulated by the County. All draws will be paid based on a percentage of work
completed. In no event shall the County provide advance funding to the Developer. .
Payment will only be made when evidence exists that the work has performed or for cost
incurred for services rendered. Evidence shall be in the form of a certified AIA document
and the County’s Construction Manager sign-off and approval.
2. A Request for Draw must be submitted to the County not more than monthly, no later than
ninety (90) days following the month in which the expenses were incurred.
3. Project “Soft Costs” and “Construction Costs” are eligible for reimbursement as stipulated
in Article XIII of this Agreement.
4. If a Developer is unable to submit a Request for Draw by the quarterly deadline, a written
request for an extension, which may be granted or denied in the sole and absolute
discretion of the County, and which shall include a justification indicating the reason for the
delay and expected submission date is required to be submitted by the deadline. Failure
to comply with this requirement shall render the Developer in non-compliance with this
Agreement and may result in reduction or forfeiture of payment, at the discretion of the
County.
5. Developer shall complete, sign, and submit to the County a Request for Draw form as
necessary. All Draw Requests must be accompanied by the following supporting
documentation, but not limited to:
copies of invoices and receipts
copies of front and back of cancelled checks or wire transfer confirmations for work
performed and certified by an architect in AIA G(702) &G(703) in a current draw
request must be submitted to demonstrate payment to the General Contractor
(GC) of the current payment
payment of one (1%) percent Commitment Fee and executed RFA Agreement or
proof of non-applicability status (not-for-profit corporation with fifty one (51%)
percent ownership)
payment of $1,000.00 Signage Fee
payment of $200.00 Loan Servicing Set-up Fee
Disbursement Request Letter on corporation official stationery for Request for
Draw amount
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Developer and General Contractor’s corporate seal or notary seal on Progress
Payment Authorization form
AIA G(702) & G(703) Application Request for Work-In-Place
Current Project Consultant Report (provided to First Lender)
General Contractor’s Lien Affidavit Release (Unconditional) of current payment
amount
6. With the initial Request for Draw, the Developer must submit relevant certificate(s) of
insurance as supporting documentation of effective coverage and is not required for
subsequent requests unless the certificate is due to expire within sixty (60) days of the
Request. Documentation must be submitted for each type of insurance stipulated in Article
II and Attachment A of this agreement.
7. The initial Request for Draw shall include supporting documentation of the required signage
as stipulated in Article XXII of this agreement.
8. A Developer has one hundred and twenty (120) calendar days after the expiration or
termination of the Contract, or completion of the project, to submit its final Request for
Draw. Failure to comply with this requirement shall render the Developer in non-
compliance with the Agreement and may result in reduction or forfeiture of payment, at the
discretion of the County.
9. Retainage: Ten (10%) percent of the value of the loan for a given Project shall be retained
by the County from each draw until the Project is completed and all close-out documents
have been received by the County. When construction reaches fifty percent (50%)
completion, the retainage will be reduced to five percent (5%). The following documents
must be presented for release of the retainage amount:
Certificate of Completion (CC) or Temporary Certificate of Completion (TCC)
for rehabilitation projects, or when the rehabilitation work receives final permits
and the work is determined by the County to be at 100% completion.
Certificate of Occupancy (CO) or Temporary Certificate of Occupancy (TCO)
for new construction projects
Certified Cost Control Report
General Contractor’s Final Release of Lien
Title Endorsement
As-Built Survey certified Miami-Dade County
Project Consultant Final Report (provided to First Lender)
10. No funds shall be paid to Developer, nor shall Developer be entitled to any funds, until such
time as the Developer closes on the loan by executing and recording, at the Developer’s
expense, all of the loan documents required by the County. Required loan documents shall
include but not be limited to a mortgage, loan agreement, promissory note, UCC financing
statement, a rental regulatory agreement if the Project is a rental, and a restrictive covenant
if the Project is homeownership. The Developer shall not be entitled to proceed to, and the
County shall have no obligation to allow Developer to close on the loan until the County
has determined, in its sole and absolute discretion, that the Developer has complied with
all of the terms of this Contract and provided all documentation and information deemed
necessary by the County.
11. In the event the County determines that the Developer has breached the terms of this
Contract (and after all cure periods have expired) and that the County is entitled to the
return of any or all of the funds awarded under this Contract, the Developer agrees to and
shall assign any proceeds to the County from any contract between the County, its
agencies or instrumentalities and the Developer or any firm, corporation, partnership or
joint venture in which the Developer has a controlling financial interest in order to secure
repayment of this award. "Controlling financial interest" shall mean ownership, directly or
indirectly to ten percent or more of the outstanding capital stock in any corporation or a
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direct or indirect interest of ten percent (10%) or more in a firm, partnership or other
business entity.
ARTICLE XIV
Restriction on the Use of Funds
The funds received under this Contract will not be used to supplant other funds; however, a
maximum of ten percent (10%) of the funding award may be expended for the Development’s
predevelopment expenses, including but not limited to, architectural costs, legal fees, and survey
and zoning charges.
A. Adverse Actions or Proceedings. The Developer shall not utilize County funds to retain
legal counsel for any action or proceeding against the County or any of its agents,
instrumentalities, employees or officials. The Developer shall not utilize County funds to
provide legal representation, advice or counsel to any client in any action or proceeding
against the County or any of its agents, instrumentalities, employees or officials.
B. Religious Purposes. County funds shall not be used for religious purposes.
C. Commingling Funds. The Developer shall not commingle funds provided under this
Contract with funds received from any other funding sources, but may be included in a
Development Bank Account permitted by the first mortgage lender at the discretion of the
County. Further, Developer shall not commingle the DIAF Funds with the Surtax Funds as
set forth herein.
D. DIAF Funds. The Developer shall ensure that the DIAF Funds will only be used to cover
the construction costs associated with the Project. The Developer shall not use DIAF
Funds to cover nonconstruction related costs associated with the Project.
ARTICLE XV
Reports and Documents
The Developer shall submit documents to the Department, as described below, or any other
document in whatever form, manner, or frequency as prescribed by the Department. These will be
used for monitoring progress, performance, and compliance with this Contract and for compliance
with applicable County and federal requirements.
1. Certificates of Insurance – The original certificate(s) must be submitted to the Department
upon commencement of construction, prior to payments made by the County and as they
are renewed throughout the Contract period.
2. Progress Reports
a. The Developer shall submit a Quarterly Progress Report in the form required by the
Department, which shall describe the progress made by the Developer in achieving
each of the objectives and action steps identified in Attachment A, “Scope of
Services.”
b. The Developer shall submit to the County a cumulative account of its activities under
this Contract in the Quarterly Status Report by the 10th day of the following month with
specific information regarding the status of the contracted activities, including
accomplishments and/or delays encountered during the implementation of the project.
c. The Developer shall submit to the County, in a timely manner, any other information
deemed necessary by the County, and its presentation shall comply with the format
specified at the time of the request.
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d. Failure to submit the Progress Reports or other information in a manner satisfactory to
the County by the due date shall render the Developer in noncompliance with this
Article.
e. In the event of such failure, the County may require the Developer to forfeit its claim to
payment requests or the County may invoke the termination provision in this Contract
by giving five (5) days written notice of such action to be taken.
3. Audit Report - The Developer shall submit to the Department an annual audit report
conducted by a Certified Public Accountant (CPA) after completion of construction.
4. Affirmative Action Plan - The Developer shall report to the Department information relative
to the equality of employment opportunities whenever so requested by the Department.
ARTICLE XVI
Access to Records and Documents
The Developer shall provide access to all of its records and agrees to provide such assistance as
may be necessary to facilitate review by the County, when deemed necessary by the County, to
ensure compliance with applicable accounting and financial standards.
The Developer shall make all records or documents which relate to this Contract available to the
County at the Developer's place of business during regular business hours.
PUBLIC RECORDS
The Developer shall to the extent applicable comply with the Florida public records law, specifically
to:
i. Keep and maintain public records required by the County to perform the service.
ii. Upon request from the County's custodian of public records, provide the County
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 this
chapter or as otherwise provided by law.
iii. 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 contract if the
Developer does not transfer the records to the County.
iv. Upon completion of the Agreement, transfer, at no cost, to the County all public
records in possession of the Developer or keep and maintain public records
required by the County to perform the service. If the Developer transfers all public
records to the County upon completion of the Agreement, the Developer shall
destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Developer keeps and maintains
public records upon completion of the Agreement, the Developer shall meet all
applicable requirements for retaining public records. All records stored
electronically must be provided to the County, upon request from the County's
custodian of public records, in a format that is compatible with the information
technology systems of the County.
A request to inspect or copy public records relating to this Agreement for services must be made
directly to the County. If the County does not possess the requested records, the County shall
immediately notify the Developer of the request, and the Developer must provide the records to the
County or allow the records to be inspected or copied within a reasonable time.
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If a Developer does not comply with the County's request for records, the County shall enforce
these requirements in accordance with the Agreement.
A Developer who fails to provide the public records to the County within a reasonable time may be
subject to penalties under Florida Statutes, Section 119.10.
The Developer shall be liable in any civil action brought due to Developer’s violation of Florida’s
public records laws, and shall indemnify the County in accordance with Article II herein.
IF THE DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE DEVELOPER’S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT
THE PHCD CUSTODIAN OF PUBLIC RECORDS AT: MIAMI-DADE PUBLIC
HOUSING AND COMMUNITY DEVELOPMENT 701 NW 1ST COURT, 16TH
FLOOR, MIAMI, FL 33136, ATTENTION: Lizette.Capote@miamidade.gov,
(786) 469-4126.
Quality Assurance/Quality Assurance Record Keeping
The Developer shall maintain, and shall require that its subcontractors and suppliers maintain,
complete and accurate records to substantiate compliance with the requirements set forth in the
Scope of Services. The Developer and its subcontractors and suppliers, shall retain such records,
and all other documents relevant to the Services furnished under this Agreement for a period of
seven (7) years from the expiration date of this Agreement and any extension thereof or seven
(7) years after the completion of the Project, whichever is later.
Audits
The Developer agrees that the County or its duly authorized representatives or governmental
agencies shall, until the expiration of seven (7) years after the expiration of this Agreement and any
extension thereof or seven (7) years after the completion of the Project, whichever is later, have
access to and the right to examine and reproduce any of the Developer’s books, documents, papers
and records and of its subcontractors and suppliers which apply to all matters of the County. Such
records shall subsequently conform to Generally Accepted Accounting Principles requirements,
and shall only address those transactions related to this Agreement.
The Developer agrees to maintain an accounting system that provides accounting records that are
supported with adequate documentation, and adequate procedures for determining the allowability
and allocability of costs.
The Developer shall obtain prior written approval from the Department before undertaking the
disposal of all records relating to this Contract.
ARTICLE XVII
Protected Records and Documents
Any person or entity that performs or assists Miami-Dade County with a function or activity involving
the use or disclosure of “Individually Identifiable Health Information (IIHI) and/or Protected Health
Information (PHI) shall comply with the Health Insurance Portability and Accountability Act (HIPAA)
of 1996 and the Miami-Dade County Privacy Standards Administrative Order. HIPAA mandates
for privacy, security and electronic transfer standards, included but are not limited to:
1. Use of information only for performing services required by the contract or as required
by law;
2. Use of appropriate safeguards to prevent non-permitted disclosures;
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3. Reporting to Miami-Dade County of any non-permitted use or disclosure;
4. Assurances that any agents and subcontractors agree to the same restrictions and
conditions that apply to the Contractor and reasonable assurances that IIHI/PHI will
be held confidential;
5. Making Protected Health Information (PHI) available to the customer;
6. Making PHI available to the customer for review and amendment; and incorporating
any amendments requested by the customer;
7. Making PHI available to Miami-Dade County for an accounting of disclosures; and
8. Making internal practices, books and records related to PHI available to Miami-Dade
County for compliance audits.
PHI shall maintain its protected status regardless of the form and method of transmission (paper
records, and/or electronic transfer of data). The Contractor must give its customers written notice
of its privacy information practices including specifically, a description of the types of uses and
disclosures that would be made with protected health information
ARTICLE XVIII
Monitoring
The Developer agrees to permit the Department, the County and State authorized personnel to
monitor, according to applicable regulations, the program which is the subject of this Contract. The
Department shall monitor both fiscal and programmatic compliance with all the terms and
conditions of this Contract. The Developer shall permit the Department to conduct site visits, client
assessment surveys, and other techniques deemed reasonably necessary by the County in its sole
and absolute discretion to fulfill the monitoring function. A report of the Department's findings will
be delivered to the Developer, and the Developer will rectify all deficiencies cited within the period
of time specified in the report.
ARTICLE XIX
Inventory - Capital Equipment and Real Property
All capital items acquired for the project by the Developer with funds allocated in this Contract shall
be assets of the Developer and shall be secured by a mortgage delivered to the County. A capital
item shall be defined as an item that: (1) has a service life in excess of one year; (2) is either
complete within itself or is a major component of another item of property; (3) by definition cannot
be described either as supplies or materials; (4) will not be consumed or lose its identity; and (5) has
a unit cost of $500 or more.
The County shall allow the Developer to retain possession of capital equipment after expiration of
this Contract as long as the Developer continues to provide the service described in the Scope of
Services (Attachment A). If the Developer disbands, becomes defunct or in any way ceases to
exist or if the Developer ceases to provide the service described in the Scope of Services or another
service of value, the County shall reclaim the items of capital equipment pursuant to the foreclosure
of the County mortgage and other documents that may secure the County.
If requested by the County, the Developer shall establish and maintain a property control system,
and shall be responsible for maintaining a current inventory on all capital items purchased with
County funds on forms provided by the Department or on forms mutually agreed upon by the
Department and the Developer. This will include listing on a property record by description, model,
serial number, date of acquisition and cost. If applicable, such property shall be inventoried
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annually and an inventory report shall be submitted to the Department. Records for capital items
shall be retained for three (3) years after its disposition.
ARTICLE XX
Subcontracts
1. The Developer may not and shall not assign or subcontract this Contract without the
prior written consent of the County which the County may grant or not grant in its sole
and absolute discretion, and the Developer shall ensure that all subcontracts and
assignments:
a. Comply with all Surtax and SHIP requirements, as applicable.
b. Identify the full, correct, and legal name of the party;
c. Describe the activities to be performed;
d. Present a complete and accurate breakdown of its price component;
e. Incorporate a provision requiring compliance with all applicable regulatory and
other requirements of this Contract and with any conditions of approval that the
County deems necessary. This applies only to subcontracts and assignments in
which parties are engaged to carry out any eligible substantive programmatic
service, as may be defined by the County, set forth in this Contract. The
Department shall in its sole discretion determine when services are eligible,
substantive programmatic services and subject to the audit and record-keeping
requirements described above;
2. The Developer shall incorporate in all consultant and other subcontracts the following
additional provision:
a. The Developer is not responsible for any insurance or other fringe benefits,
e.g., social security, income tax withholdings, retirement or leave benefits, for
the Consultant or employees of the Consultant normally available to direct
employees of the Developer. The Consultant assumes full responsibility for the
provision of all insurance and fringe benefits for himself or herself and
employees retained by the Consultant in carrying out the Scope of Services
provided in this Contract as Attachment A.
3. The Developer shall be responsible for monitoring the contractual performance of all
subcontracts and their progress toward meeting the approved goals and objectives
indicated in the attached Scope of Services (Attachment A).
4. The Developer shall receive from the Department written prior approval for any subcontract
engaging any party who agrees to carry out any substantive programmatic activities as
may be determined by the Department as described in this Contract. The Department's
approval shall be obtained prior to the release of any funds for the subcontractor.
5. The Developer shall receive written approval from the Department prior to either assigning
or transferring any obligations or responsibility set forth in this Contract or the right to
receive benefits or payments resulting from this Contract.
6. Approval by the Department of any subcontract or assignment shall not under any
circumstance be deemed to provide for the incurrence of any obligation by the Department
in excess of the total dollar amount agreed upon in this Contract.
7. If this Contract involves the expenditure of $100,000 or more by the County and the
Developer intends to use subcontractors to provide the services listed in the Scope of
Services (Attachment A) or suppliers to supply the materials, the Provider shall provide
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the names of the subcontractors and suppliers on the form attached as Attachment D.
Developer agrees that it will not change or substitute subcontractors and suppliers from
those listed in Attachment D without prior written approval of the Department.
8. Fair Subcontracting Policies (Ordinance 97-35). All Developers on County contracts in
which subcontractors may be used shall be subject to and comply with Ordinance 97-35
as amended, requiring Developers to provide a detailed statement of their policies and
procedures for awarding subcontracts which:
a) notifies the broadest number of local subcontractors of the opportunity to be
awarded a subcontract;
b) invites local subcontractors to submit bids/proposals in a practical, expedient way;
c) provides local subcontractors access to information necessary to prepare and
formulate a subcontracting bid/proposal;
d) allows local subcontractors to meet with appropriate personnel of the Developer to
discuss the Developer's requirements; and
e) awards subcontractors based on full and complete consideration of all submitted
proposals and in accordance with the Developer's stated objectives.
Additional Funding
The Developer shall notify the Department of any additional funding received for any activity
described in this contract. Such notification shall be in writing and received by the Department
within thirty (30) days of the Developer's notification by the funding source.
9. Definitions: For purposes of this Article, the following definitions apply:
i) The term "local" shall be defined as the Developer having headquarters located in
Miami-Dade County or having a place of business located in Miami-Dade County from
which the contract or subcontract will be performed.
ii) The term "subcontractor" shall be defined as a business independent of a Developer
that may agree with the Developer to perform a portion of a contract.
iii) The term "subcontract" shall be defined as an agreement between a Developer and a
subcontractor to perform a portion of a contract between the Developer and the
County.
All Developers seeking to contract with the County shall, as a condition of award, provide a
statement of the subcontracting policies and procedures (Attachment C). The County will not
execute this Contract with Developers who fail to provide a statement of the Subcontractors Policies
and Procedures.
The County reserves the right to either approve or withdraw its consent to a subcontract if it appears
to the County, in its discretion and authority that the subcontract will delay, prevent, or otherwise
impair the performance of the Developer’s obligations under this Agreement.
ARTICLE XXI
Management Evaluation and Performance Review
The Department may conduct a formal management evaluation and performance review of the
Developer, if in the Department’s sole discretion it is deemed necessary and applicable. The
management evaluation shall reflect the Developer's compliance with generally accepted fiscal and
organizational standards and practices. The performance review should reflect the quality of
service provided and the value received using monitoring data, such as progress reports, site visits,
Certified Statement of Multifamily Ownership and Loan History and project listings and client
surveys.
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ARTICLE XXII
Signage, Publicity and Advertisements
Publicity The Parties agree that the Developer is funded by the County for affordable housing
Activities. Further, the Developer agrees that all events funded by this Contract shall recognize
the County as a funding source and that the Developer shall ensure that all publicity, public
relations, advertisements and signs recognize the County for the support of all contracted activities.
This is to include, but is not limited to, all posted signs, pamphlets, wall plaques, cornerstones,
dedications, notices, flyers, brochures, news releases, media packages, promotions, and
stationery. The use of the official County logo is permissible. The Developer shall ensure that all
media representatives, when inquiring about the activities funded by this Contract, are informed
that the County is a funding source. The Developer shall notify the County of all events and
activities involving the Project ten (10) days prior to the activity or event.
When the Developer obtain(s) the building permit(s), the PHCD Project Manager, must be notified
in order to request the project sign from Miami-Dade County Internal Services Department (ISD).
Within thirty (30) days of the erection of the sign, the Loan Processing Construction Loan Officer
will submit an invoice to the Developer for payment of the project sign cost. The Developer is
responsible for all costs for replacing any amended, lost, defaced or missing sign. The sign shall
remain on the premises at least ninety (90) days after the issuance of the Certificate of Occupancy
(CO) or Certificate of Completion (CC).
ARTICLE XXIII
Miscellaneous
Independent Private Sector Inspector General Reviews
Pursuant to Miami-Dade County Administrative Order 3-20, the County has the right to retain the
services of an Independent Private Sector Inspector General (hereinafter “IPSIG”), whenever the
County deems it appropriate to do so. Upon written notice from the County, the Contractor shall
make available to the IPSIG retained by the County, all requested records and documentation
pertaining to the Agreement for inspection and reproduction. The County shall be responsible for
the payment of these IPSIG services, and under no circumstance shall the Contractor’s prices and
any changes thereto approved by the County, be inclusive of any charges relating to these IPSIG
services. The terms of this provision herein, apply to the Contractor, its officers, agents, employees,
subcontractors and assignees. Nothing contained in this provision shall impair any independent
right of the County to conduct an audit or investigate the Agreement. The terms of this Article shall
not impose any liability on the County by the Contractor or any third party.
A. Miami-Dade County Inspector General Review
Pursuant to Section 2-1076 Code of Miami-Dade County, as amended by Ordinance No.
99-63, Miami-Dade County has established the Office of the Inspector General which may,
on a random basis, perform audits on all County contracts, throughout the duration of said
contracts, except as otherwise provided below. The cost of the audit of any Contract shall
be one quarter (1/4) of one (1) percent of the total contract amount which cost shall be
included in the total proposed amount. The audit cost will be deducted by the County from
progress payments to the selected Developer. The audit cost shall also be included in all
change orders and all contract renewals and extensions.
Exception: The above application of one quarter (1/4) of one (1) percent fee assessment
shall not apply to the following contracts: (a) IPSIG contracts; (b) contracts for legal
services; (c) contracts for financial advisory services; (d) auditing contracts; (e) facility
rentals and lease agreements; (f) concessions and other rental agreements; (g) insurance
contracts; (h) revenue-generating contracts; (i) contracts where an IPSIG is assigned at
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the time the contract is approved by the Commission; (j) professional service agreements
under $1,000; (k) management agreements; (l) small purchase orders as defined in Miami-
Dade County Administrative Order 3-2; (m) federal, state and local government-funded
grants; and (n) interlocal agreements. Notwithstanding the foregoing, the Miami-Dade
County Board of County Commissioners may authorize the inclusion of the fee assessment
of one quarter (1/4) of one (1) percent in any exempted contract at the time of award.
The Miami-Dade County Inspector General is authorized and empowered to review past,
present and proposed County and Public Health Trust programs, contracts, transactions,
accounts, records and programs. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths, require the production of records and monitor
existing projects and programs. Monitoring of an existing project or program may include
a report concerning whether the project is on time, within budget and in compliance with
plans, specifications and applicable law.
The Inspector General is empowered to analyze the necessity of and reasonableness of
proposed change orders to the Contract. The Inspector General is empowered to retain
the services of independence private sector inspectors general (IPSIG) to audit,
investigate, monitor, oversee, inspect and review operations, activities, performance and
procurement processes including but not limited to project design, bid specifications,
proposal submittals, activities of the Provider, its officers, agents and employees, lobbyists,
County staff and elected officials to ensure compliance with Contract specifications and to
detect fraud and corruption.
Upon ten (10) days prior written notice to the Provider from the Inspector General or IPSIG
retained by the Inspector General, the Provider shall make all requested records and
documents available to the Inspector General or IPSIG for inspection and copying. The
Inspector General and IPSIG shall have the right to inspect and copy all documents and
records in the Provider’s possession, custody or control which, in the Inspector General or
IPSIG’s sole judgment, pertain to performance of the contract, including, but not limited to
original estimate files, worksheets, proposals and agreements from and with successful
and unsuccessful subcontractors and suppliers, all project-related correspondence,
memoranda, instructions, financial documents, construction documents, proposal and
contract documents, back-charge documents, all documents and records which involve
cash, trade or volume discounts, insurance proceeds, rebates, or dividends received,
payroll and personnel records, and supporting documentation for the aforesaid documents
and records.
The provisions in this section shall apply to the Provider, its officers, agents, employees,
subcontracts and suppliers. The Provider shall incorporate the provisions in this section in
all subcontractors and all other agreements executed by the Provider in connection with
the performance of the Contract.
Nothing in this Contract shall impair any independent right of the County to conduct audit
or investigate activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the County by the Provider or third parties.
ARTICLE XXIV
Contract Guidelines
Contract Guidelines. The Developer agrees to comply with all applicable State and County laws, rules
and regulations, which are incorporated herein by reference or fully set forth herein. This Contract shall
be interpreted according to the laws of the State of Florida and proper venue for this Contract shall be
Miami-Dade County, Florida.
Modifications. Any alterations, variations, modifications, extensions or waivers of provisions of this
Contract including but not limited to amount payable and effective term shall only be valid when they
have been reduced to writing, duly approved and signed by both parties and attached to the original of
this Contract.
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The Miami-Dade County Mayor or his designee is authorized to execute modifications to this Contract
as described herein on behalf of the County.
Contract Extension. The County shall have the right to exercise an option to extend this contract beyond
the current Contract period and will notify the Developer(s) in writing of the extension. This contract may
be extended beyond the initial year extension period upon mutual agreement between the County and
the Developer(s) upon approval by the Director of Public Housing and Community Development
(PHCD).
As part of the County’s commitment to affordable housing and to ensure that only shovel-ready projects
are continuously funded, no more than two extensions will be granted. Therefore, no more than two
extensions will be granted administratively. After two extensions of time, Public Housing and Community
Development (PHCD) will take an agenda item to the Board of County Commissioners (BCC) with a
recommendation to deny the requested extension and recapture the funds for the above referenced
project and reallocate the funds to a feasible and shovel-ready project.
Execution in Triplicate. This Agreement shall be executed in triplicate, with three (3) originals resulting.
The County shall retain two originals, and the Developer shall retain one original.
Headings, Use of Singular and Gender. Paragraph headings are for convenience only and are not
intended to expand or restrict the scope or substance of the provisions of this Contract. Wherever used
herein, the singular shall include the plural and plural shall include the singular, and pronouns shall be
read as masculine, feminine or neuter as the context requires.
Totality of Contract/Severability of Provisions. This Contract is the complete agreement between the
County and the Developer concerning the funding detailed herein, and may not be changed in writing,
verbally, or otherwise by any employee or representative of the County or any other person purporting
to act on behalf of the County except that the terms may be changed by a writing signed by the Mayor
of the County or the Mayor’s designee. No other Contract, oral or otherwise, regarding the subject
matter of this Contract shall be deemed to exist or bind any of the parties hereto. This Contract and the
attachments as referenced below contain all the terms and conditions agreed upon by the parties. In
the event of any conflict between Attachments C, D, and E to the Agreement and any of the Loan
Documents given by the Developer in favor of the County as part of a loan closing, the terms of the Loan
Documents shall prevail:
Attachment A: Scope of Services
Attachment B: Miami-Dade County Affidavits
Attachment C: Subcontractors Policies and Procedures
Attachment D: Subcontractors and Suppliers Listing
Attachment E: Schedule of Values/Line Item Budget
Attachment F: Sources and Uses
Attachment G: Agreement to Authorize Examination of Records and Adhere to
Records Retention Requirements
Attachment H: Construction Schedule
Survival. The parties acknowledge that any of the obligations in this Agreement, including but not limited
to the Developer’s obligation to indemnify the County, will survive the term, termination and cancellation
hereof. Accordingly, the respective obligations of the Developer and the County under this Agreement,
which by nature would continue beyond the termination, cancellation or expiration thereof, shall survive
termination, cancellation or expiration hereof.
Not-for-Profit Developer. A Not-for-Profit Developer shall abide by and be governed by Chapter 617,
Florida Statutes, particularly Sections 617.0830 through 617.0835 as amended, which are incorporated
herein by reference as if fully set forth herein in connection with its Contract obligations hereunder.
For-Profit Developer. A For-Profit Developer shall abide by and be governed by applicable Florida law
relating to limited partnerships or limited liability companies, as applicable.
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Articles of Incorporation and By-laws. All Developers that are corporations, whether for- profit or not-
for-profit shall, abide by and be governed by the Developer's Articles of Incorporation and By-laws, which
are incorporated herein by reference as if fully set forth herein in connection with the Contract obligations
hereunder. Such Articles of Incorporation and By-laws shall in no way create any duty, obligation, or
liability on the part of the County.
Request for Applications (RFA) . The provisions of the Request for Applications (RFA) and the related
Application that resulted in this funding award submitted by the Developer are incorporated herein by
reference as if fully set forth herein in connection with the Contract obligations hereunder.
Additional Request for Application (RFA) Funding Request. Any Developer who submits an application
in a subsequent RFA funding cycle and is granted additional funding for a Project shall be bound by the
terms and conditions of the subsequent funding award.
Conflict. In the event that a conflict arises between any prior funding documents and/or agreements
governing this development, the terms, award, provisions and definitions included in this Agreement
shall prevail. In the event of any conflict between this Agreement, any of the attachments to this
Agreement, any amendments to this Agreement, and any of the Loan Documents given by the Developer
in favor of the County as part of a loan closing, the terms of the Loan Documents shall prevail. In the
event that the Subsidy Layering Review (SLR) determines the project’s true gap financing needs to be
less than the maximum award allocated by the Board of County Commissioners, the SLR amount will
be awarded.
Schedules of Fees for Services
Miami-Dade County Implementing Order: IO 4-132 will apply to this Agreement. This Implementing
Order requires the County to charge Developer applicable fees as outlined below:
PUBLIC HOUSING AND COMMUNITY DEVELOPMENT SERVICE RATE SCHEDULE
Fee Name Proposed Fee (FY 2020-21) Fee Due
Construction Inspection Fee $1,500.00 At Loan Closing
Contract Extension/Modification
Fee (Multi-Family Development
Loans Only)
$2,500.00 At Time of Request
for Extension
ARTICLE XXV
Severability of Provisions
If any provision of this Contract is held invalid, the remainder of this Contract shall not be affected thereby
if such remainder would then continue to conform to the terms and requirements of applicable law. If
any provision of this Contract is held invalid or void, the remainder of this Contract shall not be affected
thereby if such remainder would then continue to conform to the terms and requirements of applicable
law.
ARTICLE XXVI
Waiver of Jury Trial
Neither the Developer, subcontractor, nor any other person, corporation, or entity liable for the
responsibilities, obligations, services and representations herein, nor any assignee, successor, heir or
personal representative of the Developer, subcontractor or any such other person or entity shall seek a
jury trial in any lawsuit, proceeding, counterclaim or any other litigation procedure based upon or arising
out of this Contract, or the dealings or the relationship between or among such persons or entities, or
any of them. Neither Developer, subcontractor, nor any such person or entity will seek to consolidate
any such action in which a jury trial has been waived. The provisions of this paragraph have been fully
23
discussed by the parties hereto, and the provisions hereof shall be subject to no exceptions. No party
has in any way agreed with or represented to any other party that the provisions of this paragraph will
not be fully enforced in all instances.
ARTICLE XXVII
Recordings
The Developer agrees that, in the event that funds awarded pursuant to this Agreement are to be used
to acquire or improve real property, the County may record in the Public Record this Agreement, any
amendments to this Agreement, and any of the Loan Documents executed or given to the County in
relation to this Agreement. Such recordings are meant to benefit the County and are intended to
evidence the County’s substantial investment in the property. The Developer waives any right to object
to such recordings, regardless of the timing of such recordings or any delay on the part of the County
in recording the documents referenced herein.
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their
respective and duly authorized officers on this day 15th day of December, 2023 by:
VISTA BREEZE, LTD.,
a Florida limited partnership
Witnesses:
Date: ___________ _
:Rebe Cc.._ �a..'( � n.e :z;
Type or Print Name
Date: ____________ _
[Signature Page to Funding Agreement -Surtax -Vista Breeze]
26
ATTACHMENT A
Source: SURTAX/SHIP Funds
Resolution: R-285-23
Not For-profit (X)
RENTAL NEW CONSTRUCTION-ELDERLY
Name of Developer: VISTA BREEZE, LTD
Name of Development: VISTA BREEZE
Address of Development: 175 and 280 South Shore Drive, Miami Beach, Florida 33141
SCOPE OF SERVICES
This Scope of Services Agreement governs the duties, rights and responsibilities of each of the Parties of a funding
award from the FY 2022 SURTAX/SHIP Funds for the express purpose of providing construction financing to the
Developer for the rental development herein described within Miami-Dade County.
Section I
Definitions:
1. “Construction start-up” is defined as when rehabilitation work commences pursuant to the issuance of a
building permit based upon approved plans and a Notice of Commencement has been issued.
2. “Rehabilitation start-up” is defined as work commences pursuant to the issuance of all required permits and
a Notice of Commencement has been issued.
3. “State Housing Initiative Program” is defined as the State Housing Initiative Partnership Act codified in
Sections 420.907 – 420.9079, Florida Statutes.
4. “Construction completion” is defined as when a Certificate of Occupancy (CO) has been issued .
5. “Project completion” is defined as the date of the close out letter issued by PHCD to the Developer.
6. “Final Inspection” is defined as when the Certificate of Completion (COC) is issued by the applicable
governmental entity due to the closing out of all required permits secured for the rehabilitation.
7. “For-profit corporation” is defined as a business entity organized and established pursuant to Chapter 607,
Florida Statutes.
8. “Not-for-profit corporation” is defined as a business entity organized and established pursuant to Chapter
617, Florida Statutes and has received a tax exemption ruling from the Internal Revenue Service (IRS)
pursuant to Section 501(c)(3) or 501 (c)(4) of the IRS Code of 1986.
Section II
General Provisions:
I. Construction/Rehabilitation start-up must commence no later than January 15, 2024 and shall be
completed no later than December 14, 2025.
II. The total amount of the funding award for this Contract shall not exceed $5,950,000.00 per Resolution No.
R-285-23.
III. This amount may be increased or decreased subject to the terms and conditions of the Department’s
policies and procedures and approval by the BCC.
IV. The Developer agrees to build 119 new units and set aside 119 units for households with income
at or below 80% AMI.
V. Payments from this funding award shall be made only as reimbursement of expenditures paid by the
Developer in accordance with the provisions of the Contract and Scope of Services.
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The rental amount and description of each unit is as follows:
Number
of Units
Type
AMI %
Square
Feet
Gross
Rent
Unity Rent
Net Rent
5 0 bedroom/1 bath 22% 410 $1,498 $133 $1,365
20 0 bedroom/1 bath 30% 410 $1,498 $133 $1,365
64 0 bedroom/1 bath 60% 410 $1,498 $133 $1,365
30 0 bedroom/1 bath 80% 410 $1,498 $133 $1,365
119 TOTAL
Developer agrees with respect to the Development for the period beginning on the date of recordation of the
Mortgage and Security Agreement securing the County Loan, and ending in the last day of the thirty (30) year period
afters the year in which the Development is completed, that:
a. There shall be 119 units for households with income at or below 80% AMI in the configuration as
described herein.
b. The rental payments will include but not be limited to, the following services to each unit: refrigerator, oven,
ceramic/porcelain tile, and central air conditioning.
c. Each resident at the time of initial occupancy shall receive from the Developer, a written notice of the rent
to be charged and the purposed and services included in the rents are approved by the Department; that a
file copy of this notice with a signed acknowledgement of receipt by each resident.
d. Each unit shall meet the energy efficiency standards promulgated by the USHUD Secretary.
e. The Developer shall ensure that in any rehabilitation project all lead based paint and asbestos is removed
and abated as part of the rehabilitation of the property.
f. Rents may be increased as median income increases as published by USHUD or Florida Housing Finance
Corporation or approved by the Department. Any other adjustments to rents will be made only if the
Department and USHUD find that the adjustment is necessary to support the continued financial viability of
the Development and only by the amount that the Department and USHUD determine is necessary to
maintain continued financial viability of the project.
g. The Developer will provide documentation to justify any rental increase request not attributable to increases
in median income. Within thirty (30) days of receipt of such documentation, the Department will notify the
Developer of its decision and advise the Developer of the reason for its decision.
h. The Developer agrees that the County has the right to refer eligible, qualified applicants to the Developer
for housing. The Developer shall not deny eligible, qualified applicants referred by the County unless good
cause is documented by the Developer and submitted to the County and approved in writing by the County.
The Developer shall provide a report on a quarterly basis to the County or its designee regarding the
approval or denial of those applicants referred by the County, including the reason for denial, of each
applicant. County acknowledges that at least 80% of the units are being set aside for persons 55 and older
or as otherwise provided under any state or federal program for the benefit of the elderly.
i. The Developer shall report to the County the number of housing units completed and occupied, including
demographic information on each head of household.
j. At the discretion of the County, up to twenty percent (20%) of rental units (per project) may be designated
for federal rental housing subsidy; either project-based or tenant-based, based upon adopted County
policies uniformly applied.
k. Pursuant to the Miami-Dade Board of County Commissioners’ Resolution No. R-34-15, the Developer, its
agents and/or representatives, shall provide written notice to the County related to the availability of rental
opportunities, including, but not limited to, the number of available units, bedroom size, and rental prices of
such rental units at the start of any leasing activity, and after issuance of certificate of occupancy. The
Developer, its agents and/or representatives shall also provide the County with the contact information for
the Developer, its, agents and/or representatives.
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Section III
DEVELOPER OBLIGATIONS AND DUTIES
VISTA BREEZE, LTD., A Not For-profit Developer shall pay n/a to the County a non-refundable one percent (1%)
commitment fee of n/a of the $5,950,000.00 SURTAX FY 2022 construction award upon Contract execution.
The Developer shall submit all project construction start-up and completion extension(s) request in writing to
the Department a revised timetable for completion of the project, at least sixty (60) days prior to the deadline of
the contract or amendment. If the extension request is not timely submitted, the funding award shall be
automatically forfeited by the Developer.
The Developer agrees that when awarded SURTAX Funds at least seventy-five percent (75%) of the units
approved under this Contract must be occupied by low-income families as defined by Miami-Dade County
Ordinance No. 93-143 as those earning eighty percent (80%) or less of median income. No more than twenty-
five percent (25%) of the units may be occupied by moderate income families as defined by Miami-Dade County
Ordinance No. 93-143 as those earning from 80.1 to 140.0 percent of median, if applicable.
The Developer shall obtain prior written approval from the Department before undertaking any and all changes
to the project, including, but not limited to changes in rental amount, start-up and completion date extension
request, unit set-aside, floor plans and amounts to be contributed towards closing. Prior written approval from
the Department is not required for rent increases based solely upon changes in Florida Housing Finance
Corporation published rents or utility allowances. The Developer shall send the Department notice of such
changes within thirty (30) days of an increase.
The Developer shall execute a Rental Regulatory Agreement delineating unit set-aside proportionate with the
level of funding received pursuant to the funding sources.
The Developer shall forward to the County within fifteen [15] days of execution of this contract by the County,
an Affirmative Marketing Program to attract and identify applicants, regardless of sex, of all minority and
majority groups, to the Project, particularly, groups that are not likely to be aware of the Project. The Marketing
Plan should include efforts designed to make such persons/groups aware of the available housing, including,
but not limited to the activities:
Submit proof of advertising in The Miami Herald, Nuevo Herald and Miami Times, in an effort to afford all
ethnic groups the opportunity to obtain affordable housing. The Developer shall provide proof of other
special marketing efforts including advertising Multiple Listings Service (MLS) through a licensed real estate
professional.
The Developer shall provide to the County for review and approval, at least 15 days prior to closing a complete
set of permitted plans and permits on each unit model upon approval by the appropriate controlling municipality
prior to commencing construction. Failure of the Developer to provide the plans as required, or failure of the
plans to receive approval of the County, shall result in the loan not closing and may be a basis for termination
of this Agreement by the County.
The Developer shall provide to the County for approval prior to awarding the construction contract for the
Development, the name of the General Contractor.
The Developer shall provide to the County the General Contractor Payment & Performance Bond (P&PB). At
the County’s discretion, based on the Developer’s organizational capacity and track records and experience, a
cash deposit or a letter of credit in favor of the County in an amount of twenty percent (20%) of the construction
contract total cost in US funds, may be accepted in lieu of the P&PB, prior to the commencement of
construction.
The Developer shall schedule a Pre-Loan Closing Conference with the County at least sixty (60) prior to loan
closing.
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The Developer shall provide the County with a written commitment for construction financing from a financial
institution(s) at the time of construction loan closing.
The Developer agrees to notify the County in writing within fourteen (14) days of any key personnel or location
changes in the management company.
During the Design Stage the Developer shall obtain Professional Liability Insurance in the name of the
Developer or the licensed design professional employed by the Developer in an amount of not less than
$1,000,000 per claim, and shall furnish to the Department’s Public Housing and Community Development
(PHCD), 701 N.W. 1 Court, 14th floor, Miami, Florida 33136, relevant certificate(s) of Insurance evidencing
insurance coverage.
During the Construction Phase and/or at the time of Construction loan closing, which is defined as the date on
which the loan agreement is executed by both the Miami-Dade County Mayor and the Developer, the Developer
shall furnish to the Department’s Public Housing and Community Development (PHCD), 701 N.W. 1 Court,
14th floor, Miami, Florida 33136, relevant certificate(s) of insurance evidencing insurance coverage), the
Developer shall provide proof of insurances indicating the following types of insurance upon PHCD’s
notification:
1. Worker's Compensation Insurance for all employees of the Developer pursuant to Chapter 440, Florida
Statutes.
2. Commercial General liability in an amount not less than $1,000,000 per occurrence, and $2,000,000 in
the aggregate, not to exclude Explosion Collapse and Underground Hazards. Miami-Dade County
must be shown as an additional insured with respect to this coverage.
3. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in connection
with the agreement, in an amount not less than $1,000,000 combined single limit per occurrence for
bodily injury and property damage.
4. Completed Value Builder's Risk Insurance on an "All Risk" basis policy shall be in the name of Miami-
Dade County and the Developer.
5. Flood Insurance for properties in flood zone A or V, in an amount not less than the full replacement
value(s) of the completed structure(s) or the maximum amount of coverage available through the
National Flood Insurance Program (NFIP), whichever is greater. The policy will show Miami-Dade
County as a Loss Payee and the policy must be provided at such time that the buildings' walls and
roofs exist.
Upon the completion of the Construction/Rehabilitation Phase and the operation/management phase for
occupancy commences, the following insurance must be kept in full force throughout the duration of the loan
and/or contract:
1. Commercial General Liability Liability Insurance on a comprehensive basis in an amount not less than
$1,000,000 combined single limit per occurrence for Bodily Injury and Property Damage. Miami-Dade
County must be shown as an additional insured.
2. Property Insurance Coverage on an "All Risk" basis Miami-Dade County must be shown as a Loss
Payee.
3. Flood Insurance coverage shall be provided for properties located within a flood hazard zone, in an
amount not less than the full replacement value(s) of the completed structure(s) or the maximum
amount of coverage available through the National Flood Insurance Program (NFIP) whichever is
greater. Miami-Dade County must be shown as a Loss Payee with respect to this coverage.
The Developer shall ensure that all applicable insurance certificates required in conjunction with the construction
of this project remain in force and effect for the duration of the construction loan term, including any and all
option years, if applicable. If the insurance certificate(s) is scheduled to expire during the construction loan term,
30
the Developer shall submit a new and/or renewed insurance certificate to the County at a minimum of thirty (30)
calendar days prior to the expiration of the insurance certificates. If a new and/or renewed certificate of insurance
is not timely submitted to the County in the manner herein prescribed, the County shall call the loan due and
payable.
All required insurance policies shall be issued by companies authorized to do business under the laws of the
State of Florida, with the following qualifications:
Insurance Rating. The Insurance Company must be rated no less than "A" as to management, and no
less than "Class VII" as to financial strength, according to the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the
County Risk Management Division.
Or
The Company must hold a valid Florida Certificate of Authority as shown in the latest "List of All Insurance
Companies Authorized or Approved to Do Business in Florida" issued by the State of Florida Department
of Insurance and are members of the Florida Guaranty Fund.
Certificates will show that no modification or change in insurance shall be made without thirty (30) days
written advance notice to the certificate holder.
If the Developer fails to furnish to the County the Certificate of Insurance or written verification required under this
section or as determined by the County's Risk Management Division after review of the Scope of Services, the
County shall not disburse any funds until the necessary Certificates of Insurance or written verification is submitted.
The Developer agrees that this Contract is contingent upon receipt of the required insurance certificates at the
construction loan closing. If an Insurance Certificate is received within the specified period, but not in the manner
described herein, the Developer shall be notified of the deficiency and shall submit the certificate(s) to the County
within five (5) calendar days of the deficiency notification.
Compliance with a portion of the foregoing requirements shall not relieve the Developer any liability or obligation
under any section of Scope of Services.
Section IV
COUNTY OBLIGATIONS AND DUTIES
The County shall manage its own disbursements and act as the disbursement agent for all construction loans
“funding draws”.
The County will monitor this project for adherence to plans, unit layout and deadlines for project completion in
accordance with the Contract and this Scope of Services.
The County through the Department shall forward to the County’s Risk Management all required and applicable
Certificate(s) of Insurance for approval.
The County shall disburse the awarded funding only after the Developer closes on the construction loan, all required
loan documents have been recorded and the Developer has timely submitted “funding draw” requests and pertinent
invoices in the prescribed manner and satisfactory to the County.
The County shall notify the Developer of any address/location changes as to the Department contact information
within forty-five (45) days of the occurrence.
Section V
CONFLICT
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#12262062 v3
In the event that a conflict arises between any prior funding documents and/or agreements governing this
development, the terms, provisions and definitions included in the Scope of Services shall prevail as the governing
agreement. In the event of any conflict between this Scope of Services and Attachments to the Agreement and
any of the Loan Documents given by the Developer in favor of the County as part of a loan closing, the terms of the
Loan Documents shall prevail.
#12106713 v7
EXHIBIT "C"
COMPLEX BUDGET/COST
[Attached]
Vista Breeze MASTER
S&U
Vista Breeze - Miami Beach, FL
Sources & Uses
Sources Total %Per Unit
Perm 11,875,000 18.18%99,790
Viability Loan 4,300,000 6.58%36,134
SAIL 3,000,000 4.59%25,210
Supplemental ELI 600,000 0.92%5,042
NHTF 1,301,500 1.99%10,937
HOME - 2022 + 2023 1,003,969 1.54%8,437
SURTAX 5,950,000 9.11%50,000
Sponsor Note 8,000,000 12.25%67,227
Limited Partner Equity 26,235,501 40.17%220,466
Deferred Developer Fee 3,040,849 4.66%25,553
Total Sources 65,306,819 100.00%548,797
Uses Total %Per Unit
Hard Construction Costs 33,312,634 51.01%279,938
Recreational/Owner Items 1,538,622 2.36%12,930
Hard Cost Contingency 5.0%1,665,632 2.55%13,997
Construction Interest Expense 3,497,427 5.36%29,390
Permanent Loan Origination Fee 118,750 0.18%998
Permanent Loan Closing Costs 54,450 0.08%458
Construction Loan Origination Fee 325,000 0.50%2,731
Construction Loan Closing Costs 97,500 0.15%819
Costs of Issuance 431,070 0.66%3,622
Other Loan Closing Costs 176,657 0.27%1,485
Accounting Fees 40,000 0.06%336
Application Fees 16,585 0.03%139
Appraisal 12,770 0.02%107
Architect Fee - Design 870,000 1.33%7,311
Architect Fee - Supervision 190,000 0.29%1,597
Builder's Risk Insurance 360,000 0.55%3,025
Building Permit 4.3%1,428,685 2.19%12,006
P&P Bond 269,717 0.41%2,267
Credit Underwriting Fee 150,405 0.23%1,264
Engineering Fee 150,806 0.23%1,267
Environmental Report 6,700 0.01%56
FHFC Administrative Fees 239,740 0.37%2,015
FHFC Application Fees 9,500 0.01%80
FHFC Compliance Monitoring Fee 229,316 0.35%1,927
Impact Fees 66,027 0.10%555
Inspection Fees 412,714 0.63%3,468
Insurance - Property/Liability 178,500 0.27%1,500
Legal Fees - Partnership 475,000 0.73%3,992
Legal Fees - Other 135,000 0.21%1,134
Market Study 8,000 0.01%67
Marketing & Advertising 20,000 0.03%168
Stabilization Operating Expenses 117,515 0.18%988
Soil Test Report 13,650 0.02%115
Survey (Including As-Built)67,998 0.10%571
Title Insurance & Recording 173,902 0.27%1,461
Utility Connection Fee 128,690 0.20%1,081
General Liability Insurance 116,595 0.18%980
Scheduling 80,400 0.12%676
Soft Cost Contingency 5.0%298,411 0.46%2,508
Sub-Total 47,484,367
Miscellaneous Reserves 3 months 474,574 0.73%3,988
Land, To Be Acquired 8,800,000 13.47%73,950
Developer's Fee 18.0%8,547,878 13.09%71,831
Total Project Cost 65,306,819 100.00%548,797
11/29/2023 3:50 PM 3 of 6