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Home Program Agreement )oo,/-- 2S-6 f./( HOME PROGRAM AGREEMENT THIS AGREEMENT, entered into this ~g~ay of JU/,.'-/ ,200!:L by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a not-for-profit Florida corporation, with offices located at 945 Pennsylvania Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the United States Department of Housing and Urban Development (HUD) as a participating jurisdiction for the receipt of funds as provided under the HOME Investment Partnerships Program under 24 CFR PART 92, as amended (HOME Program); and WHEREAS, the City has entered into an agreement with HUD for the purpose of conducting an affordable housing program with federal financial assistance under the HOME Program; and WHEREAS, on April 8, 1993, the Mayor and City Commission approved Resolution No. 93-20756, designating Miami Beach Community Development Corporation (MBCDC) as a qualified Community Housing Development Organization (CHDO) under the HOME Program; and WHEREAS, the City has determined the necessity for providing affordable housing in the City through the Fiscal Year 2004/2005 One-Year Action Plan for Federal funds, adopted by Resolution No. 2004-25641 on July 28, 2004; and WHEREAS, MBCDC warrants and represents that it possesses the legal authority to enter into this Agreement, by way of a resolution, motion, or similar action that has been duly adopted or passed as an official act of the MBCDC governing body, authorizing the execution of this Agreement, including all understandings and assurances contained herein, and authorizing the person identified as the official representative of MBCDC to act in connection with this Agreement and to provide such additional information as may be required; and WHEREAS, it is acknowledged and agreed that funds to be granted to MBCDC derive from Federal funds appropriated to the City by HUD for the uses and purposes herein referred to and, accordingly, it is acknowledged and agreed that this Agreement is entered into in compliance by MBCDC with all applicable provisions of Federal, State and local laws, statutes, rules and regulations. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings as defined in the HOME Investment Partnerships Program Final Rule, 24 CFR Part 92, October 1,2002, and any amendments thereto: Page 1 of 19 (a) HOME Program: HOME Investment Partnerships Program, Final Rule, 24 CFR Part 92, as amended; (b) HUD: United States Department of Housing and Urban Development or any successor agency; (c) CHDO: Community Housing Development Organization as defined in the HOME Program; (d) Funds: HOME Program funds; (e) CHOO Operating Expenses: Reasonable and necessary costs for the operation of the CHDO. Such expenses include salaries, wages, and other employee compensation and benefits; employee education, training, and travel; rent; utilities; communication costs; taxes; insurance; and equipment, materials and supplies. Operating expense funds may not be used to pay operating expenses incurred by a CHDO acting as a sub-recipient or contractor under the HOME Program; (f) Any term not otherwise defined in this Agreement shall have the meaning set forth in the HOME Program. ARTICLE II ALLOCATION OF HOME FUNDS In consideration for the performance by MBCDC of its role and responsibilities set forth in this Agreement, the City will provide Sixty-Four Thousand Five Hundred and Twenty-Nine Dollars ($64,529) (Funds), from its Fiscal Year 2004/2005 HOME allocation to MBCDC to be used for eligible operating expenses relative to CHDO activities in accordance with the Scope of Services (Exhibit A) and Operating Budget (Exhibit B) attached hereto. The Funds will be used solely to pay reasonable and necessary costs for the operation of MBCDC acting in its capacity as a CHDO under the HOME Program during the period October 1 , 2004 through September 30, 2005; any remaining balance of Funds shall revert to the City. ARTICLE III PROCEEDS FROM HOME INVESTMENT In accordance with the HOME Final Rule, as amended, at 24 CFR PART 92.300(a)(2), MBCOC may retain the proceeds resulting from the CHDO's investment of its CHDO set aside funds for use in other housing activities which benefit low-income families. However, any recapture of HOME funds for housing not meeting the affordability requirements of 24 CFR PART 92.254(a)(5)(ii), will be considered program income and will be repaid in accordance with the requirements of 24 CFR PART 92.503. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE HOME PROGRAM MBCDC expressly agrees to the following terms and conditions in conformity with the HOME Program: (a) It will enter into a written Agreement with the City reserving fiscal year 2004/2005 Page 2 of 19 CHDO set aside funds within 24 months from the end of the month in which HUD signs the fiscal year 2004/2005 HOME Agreement with the City, and will execute specific CHDO Agreement(s) with the City in order to commit the set aside funds to a specific eligible CHDO project or projects. The City, at its sole discretion, may require commitment of CHDO set aside funds within a time period that is in the best interest of the City in order to avoid recapture of set aside funds. (b) It will maintain a financial management system that conforms to the financial accountability standards of 24 CFR PART 84.21, "Standards for Financial Management Systems." (c) Affirmative Marketina. MBCDC agrees to adopt and implement affirmative marketing procedures for rental and home buyer projects containing five or more HOME-assisted housing units as set forth in 24 CFR 92.351 and to maintain records of its affirmative marketing activities in accordance with the record keeping requirements of 24 CFR 92.508 (a)(7)(ii). (d) CHDO Caoabilities. MBCDC as a CHDO agrees to either develop, sponsor or own the HOME projects funded with set aside funds and in any of these capacities it must have effective management control. (e) Chanae in Status: MBCDC agrees to advise the City in writing within thirty (30) days, of any organizational, operational, or legal status changes made by MBCDC that affect documents that were submitted by MBCDC to obtain CHDO status. (f) Prooerty Standards: MBCDC agrees to comply with the property standards requirements, as set forth in 24 CFR PART 92.251. ARTICLE V ELIGIBLE COSTS MBCDC agrees that eligible operating expenses under this Agreement are limited to those eligible costs for operating expenses as outlined in 24 CFR PART 92.208 of the HOME Program regulations and as defined in Article I herein. ARTICLE VI METHOD OF PAYMENT MBCDC shall be paid as described below: (a) MBCDC shall be paid for eligible costs, permitted under the Scope of Services based on actual costs, with supportive documentation for expenses that are considered reasonable and necessary and approved by MBCDC's authorized representative. MBCDC shall be paid only for those expenditures contained within Exhibit B, Budget to this Agreement. Budget line item transfers must have prior written approval of the City. Documentation shall include, but not be limited to, the following: (1) Books, records and documents in accordance with generally accepted accounting principles, procedures and practices, which sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by this Page 3 of 19 Agreement. (2) A system of allocation that will assure reliable cost measurements and customary service delivery costs. (3) Time sheets for split-funded employees, who work on more than one activity, in order to record the HOME activity delivery cost by project and the non-HOME related charges. (b) Requests for payment shall be assembled by calendar month and received by the Gity no later than the 10th day of the succeeding month. Failure to comply may result in rejection of invoices. In no event shall the Gity provide advance HOME funding to MBGOG nor shall MBGOG advance HOME funds to any party. (c) Any payment due under the terms of this Agreement may be withheld pending the receipt and approval by the Gity of all reports and documents which MBGOG is required to submit to the Gity pursuant to the terms of this Agreement or any amendments thereto. (d) No payments will be made without evidence of appropriate insurance required by this Agreement. Such evidence must be on file with the Gity. (e) MBGOG understands and agrees that disbursements offunds under this Agreement may not be requested until funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. ARTICLE VII SUBCONTRACTS (a) MBGOG agrees that none of the work or services covered by this Agreement, including but not limited to consultant work or services, shall be subcontracted or reimbursed without the prior written approval of the Gity. (b) MBGOG agrees to include in the subcontract that the subcontractor shall hold the Gity harmless against all claims of whatever nature arising out of the subcontractor's performance of work under this Agreement to the extent allowed by law. (c) If MBGOG subcontracts, a copy of the executed subcontract must be forwarded to the Gity within ten (10) days after execution. ARTICLE VIII CONDITIONS OF SERVICES (a) As a condition of these services, MBGOG agrees to comply with the regulations of the HOME Program. (b) MBGOG agrees to comply with the requirements of Executive Orders 11625 and 12432 concerning Minority Business Enterprise and 12138 Women's Business Enterprise which encourage the use of minority and women's business enterprises, to the maximum extent possible, in connection with HOME-funded activities. Page 4 of 19 (c) MBCDC agrees to comply with the Displacement, Relocation, and Acquisition requirements in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4201-4655) and 49 CFR Part 24. (d) MBCDC agrees to comply with all of the following federal laws, executive orders and regulations pertaining to fair housing and equal opportunity: (1) Title VI of the Civil Rights Act of 1964, As Amended (42 U.S.C. 2000d) -- States that no person may be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving federal financial assistance on the basis of race, color, or national origin. Its implementing regulations may be found in 28 CFR Part 1. (2) Title VIII ofthe Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100-115 -- Prohibits discrimination in the sale or rent of units in the private housing market against any person on the basis of race, color, religion, sex, national origin, familial status or handicap. (3) Equal Opportunity in Housing (Executive Order 11063, As Amended by Executive Order 12259) and implementing regulations at 24 CFR Part 107 -- Prohibits discrimination in housing or residential property financing related to any federally assisted activity against individuals on the basis of race, color, religion, sex or national origin. (4) Age Discrimination Act of 1975, As Amended (42 U.S.C. 6101) and its implementing regulations at 24 CFR Part 146 -- Prohibits age discrimination in programs receiving federal financial assistance. (5) Equal Employment Opportunity, Executive Order 11246, As Amended and its implementing regulations at 41 CFR Part 60 -- Prohibits discrimination against any employee or applicant for employment because of race, color, religion, sex, or national origin. Provisions to effectuate this prohibition must be included in all construction contracts exceeding $10,000. (e) MBCDC agrees to comply with the requirements of Section 3 ofthe Housing and Urban Development Act of 1968 (12 U.S.C. 1701 u) -- Requires that, to the greatest extent feasible, opportunities for training and employment arising from HOME will be provided to low-income persons residing in the program service area; and, to the greatest extent feasible, contracts for work to be performed in connection with HOME will be awarded to business concerns which are located in or owned by persons residing in the program service area. (f) MBCDC will ensure that all units in a project assisted with HOME funds comply with the Lead Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et) and its implementing regulations at 24 CFR PART 35. (g) MBCDC agrees to comply with the Federal Labor Standards Provisions, as described in HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community Development Programs) -- Applies to all projects with 12 or more HOME- Page 5 of 19 assisted units, regardless of whether HOME funds are used for construction or other costs. ARTICLE IX TERM OF AGREEMENT This Agreement shall become effective on October 1 , 2004, and shall continue until September 30, 2005. ARTICLE X TERMINATION The City and MBCDC agree that this Agreement may be terminated in whole or in part, for cause, (as defined in Article XXVI herein and in accordance with the provisions of 24 CFR Part 85.43) orfor convenience (as defined in Article XXVII and in accordance with the provisions of 24 CFR, Part 85.44). A written notification shall be required at least thirty (30) days prior to the effective date of such termination, and shall include the reason for the termination (if for cause), the effective date, and in the case of a partial termination, the actual portion to be terminated. ARTICLE XI AMENDMENTS Any alterations, variations, modifications or waivers of this Agreement shall only be valid when they have been reduced to writing and duly signed by both parties hereto. Any changes which do not substantially change the scope of the Agreement or increase the total amount payable under this Agreement, shall be valid only when reduced to writing and signed by the City Administration and MBCDC. ARTICLE XII CONFLICT OF INTEREST (a) MBCDC shall comply with the standards contained in 24 CFR Part 92.356 which states that no owner, developer or sponsor of a project assisted with HOME funds (or officer, employee, agent or consultant of the owner, developer or sponsor) whether private for profit or non-profit (including a CHDO when acting as an owner, developer or sponsor) may occupy a HOME-assisted affordable housing unit in a project. This provision does not apply to an owner-occupant of single- family housing or to an employee or agent of the owner or developer of a rental housing project who occupies a HOME assisted unit as the project manager or maintenance worker. Exceptions may be granted by the City in accordance with 24 CFR Part 92.356(f)(2). (b) MBCDC shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. MBCDC shall make such disclosure in writing to the City immediately upon MBCDC's discovery of such possible conflict. The City will then render an opinion, which shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, a for-profit or nonprofit subsidiary or affiliate organization, an organization with overlapping Board of Directors, and an organization for which MBCDC is responsible for appointing memberships. MBCDC shall report this information to the City upon forming the relationship or, if already formed, shall report it immediately. Page 6 of 19 ARTICLE XIII INDEMNIFICATION AND INSURANCE MBCDC shall indemnify and hold harmless the City from any and all claims, liabilities, losses, and causes of action which may arise out of an act, omission, negligence or misconduct on the part of MBCDC or any of its agents, servants, employees, contractors, patrons, guests, clients, or invitees. MBCDC, through its insurance carrier, shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name of the City, when applicable, and shall pay all costs and judgements which may issue thereon. MBCDC, through an insurance carrier, shall provide a General Liability Policy with coverage for Bodily Injury and Property Damage, in the amount of $500,000 per occurrence (the policy must include coverage for contractual liability to cover the above indemnification); and the City of Miami Beach shall be named as an additional insured followed by the statement: "This coverage is primary to all other coverage carried by the City covering this specific agreement only." MBCDC shall hold proof of Workers' Compensation Coverage as per statutory limits of the State of Florida. Automobile and vehicle coverage shall be required when the use of automobiles and other vehicles are involved in any way in the performance of the Agreement. MBCDC shall submit to the City an ORIGINAL Certificate of Insurance. All insurance coverage shall be approved by the City's Risk Manager prior to the release of any funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty (30) days after the execution of this Agreement, this Agreement shall become null and void, and the City shall have no obligation under the terms thereof unless a written extension of this thirty (30) day requirement is secured from the Risk Manager. ARTICLE XIV REPORTS (1) ProQress Reports. MBCDC agrees to submit month Iv status reports, which shall describe the progress made by MBCDC in achieving each of the objectives identified in Scope of Services (Exhibit A). The Progress Report shall be submitted no later than 10 days after the end of each month. It will be the responsibility of MBCDC to notify the City in writing, of any actions, law, or event that will impede or hinder the success of the activities contemplated by this Agreement. After such notification the City will take whatever actions it deems appropriate to ensure the success of the program. (2) Annual Report. MBCDC shall submit a cumulative status report (hereinafter referred to as Annual Report) which shall describe the progress made by MBCDC in achieving each of the objectives identified in the Scope of Services during the previous year. The Annual Report reporting period covers a twelve (12) month period beginning October 1, 2004 and ending September 30, 2005, and shall be received by the City by October 15, 2005. (3) Other reports as may be required by the City to demonstrate compliance with any of the terms of this Agreement. Page 7 of 19 If the required reports described above are not submitted to the City or are not completed in the manner acceptable to the City, the City may withhold further payments until they are completed or may take any other action as the City may deem appropriate. ARTICLE XV AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City Administration and/or the comptroller of the United States may deem necessary, there shall be made available to the City Administration and/or representatives of the comptroller to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. If during the course of a monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure, the City will have the right to deduct/reduce those amounts from their related invoices. MBCDC must maintain records necessary to document compliance with the provisions of this Agreement. ARTICLE XVI COMPLIANCE WITH LOCAL. STATE AND FEDERAL REGULATIONS MBCDC agrees to comply with all applicable Federal regulations as they may apply to program administration. Additionally, MBCDC will comply with all State and local laws and ordinances hereto applicable. ARTICLE XVII ADDITIONAL CONDITIONS (a) It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the compensation, originated from grants of HOME Program funds and must comply with all applicable HUD rules and regulations. It is expressly understood and agreed that in the event of curtailment or non-production of said federal grant funds, that the financial sources necessary to continue to pay MBCDC compensation will not be available and that this Agreement will thereby terminate effective as of the time that it is determined that said funds are no longer available. In the event of such determination, MBCDC agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof personally for the performance of this Agreement and all of the parties hereto shall be released from further liability each to the other under the terms of this Agreement. (b) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (c) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall rule. (d) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. Page 8 of 19 ARTICLE XVIII ACCESS TO RECORDS MBCDC, agrees to allow access during normal business hours to all financial records to authorized Federal, State or City representatives and agrees to provide such assistance as may be necessary to facilitate financial audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and financial standards. MBCDC shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. ARTICLE XIX SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release or other type of publicity pertaining to the project as stated herein must recognize the City as the recipient funded by the United States Department of Housing and Urban Development administered by the Housing and Community Development Division of the Neighborhood Services Department and the entity which provided funds for the Project. ARTICLE XXI DRUG-FREE WORKPLACE MBCDC agrees to administer, in good faith, a policy to ensure that it complies with the Drug-Free Workplace Act requirements under 24 CFR Part 24, Subpart F, and will ensure that the workplace is free from the unlawful manufacture, distribution, dispensing, possession or use of drugs or alcohol. ARTICLE XXII NONDELEGABLE MBCDC agrees that the obligations undertaken pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. ARTICLE XXIII SUCCESSORS AND ASSIGNS MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. Page 9 of 19 ARTICLE XXIV INDEPENDENT CONTRACTOR MBCDC and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further he/she shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXV ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the City thereto. It shall be deemed a default of this Agreement in the event that MBCDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Paragraph. In the event such consent is not obtained, in the manner prescribed herein, the City shall be entitled to declare a default, cancel this Agreement, and resort to its rights and remedies against the defaulting party. In the event MBCDC transfers an interest of more than one (1 %) percent ownership in its stock by pledge, sale, or otherwise; or if MBCDC makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if MBCDC is involved in any bulk transfer of its business or assets, then in that event each of the foregoing actions shall also be deemed an assignment of this Agreement and shall require the City's prior written consent. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receivership for MBCDC, shall be deemed an assignment of this Agreement and will require the prior written consent of the City thereto. ARTICLE XXVI TERMINATION FOR CAUSE The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause, as prescribed in Article X herein. "Cause" shall include the following: (a) MBCDC's failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any Federal, State or local regulation. (b) MBCDC's failure to maintain the insurance required by the City. (c) Submitting any required report to the City which is late, incorrect, or incomplete in any material respect after notice and reasonable opportunity to cure, as set forth in subparagraph (e) hereof, has been given by the City to MBCDC. (d) Implementation of this Agreement, for any reason is rendered impossible or infeasible. (e) Failure to respond in writing within thirty (30) days of notice of same from City to any concems raised by the City, including providing substantiating documentation when requested by the City; (f) Any evidence of fraud, waste or mismanagement as determined by the City's monitoring of project(s) under this Agreement, or any violation of applicable HUD rules and Page 10 of 19 regulations; (g) MBCDC's insolvency or bankruptcy; (h) An assignment or transfer of this Agreement or any interest therein which does not comply with the procedures set forth in Article XXV herein; (i) Failure to comply and/or perform in accordance with the affordability requirements, and/or an unauthorized transfer of title to its HOME Projects. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, at the expiration of said thirty (30) day period (or such additional period of time, as permitted by the City, in its sole discretion, as required to cure such default in the event MBCDC is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the City fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of the Agreement. In the event of a default for cause, the City may, at its option, avail itself of any and all remedies pursuant to 24 CFR Part 85.43, as amended from time to time, including suspension, in whole or in part, of MBCDC's Funds, as set forth herein, and any other remedies that may be legally available. ARTICLE XXVII TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI above, MBCDC herein consents that the City may terminate this Agreement, in whole or in part, for convenience, as set forth in 24 CFR Part 85.44. ARTICLE XXVIII ADDITIONAL REMEDIES In the event of a default and termination for cause, the City shall be entitled to bring any and all legal and/or equitable actions which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE XXIX MAINTENANCE AND RETENTION OF RECORDS MBCDC agrees that it will maintain all records required pursuant to 24 CFR Part 92.508, in an orderly fashion in a readily accessible, permanent and secured location, and that it will prepare and submit all reports necessary to assist the City in meeting record keeping and reporting requirements thereunder. (a) Records shall be maintained for a period of five (5) years after the closeout of funds under this Agreement except as provided herein (b), (c) and (d). (b) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in Page 11 of 19 paragraph (a), whichever is later. (c) Records regarding project requirements that apply for the duration of the period of affordability, as well as the written agreement and inspection and monitoring reports must be retained for five (5) years after the period of affordability terminates. (d) Records covering displacements and acquisition must be retained for at least five (5) years after the date by which the persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled in accordance with 24 CFR PART 92.353. ARTICLE XXX LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $64,529.00. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $64,529.00. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of $64,529.00, for any action or claim for breach of contract arising out of the performance or non- performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. ARTICLE XXXI VENUE This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade County, Florida. ARTICLE XXXII ADDITIONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the compensation, originated from grants of federal HOME Investment Partnerships Program funds, and must be implemented with all of the applicable rules and regulation of the U.S. Department of Housing and Urban Development. It is expressly understood and agreed that in the event of curtailment or non-production of said federal grant funds, that the financial sources necessary to continue to pay the Provider compensation will not be available and that this Agreement will thereby terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, MBCDC agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof, personally for the performance of this Agreement and all parties hereto shall be released from further liability each to the other under the terms of this Agreement. Page 12 of 19 ARTICLE XXXIII ACCESSIBILITY LAWS COMPLIANCE MBCDC agrees to adhere to and be governed by the following accessibility requirements: (a) Architectural Barriers Act of 1968, As Amended (42 U..S.C.4151) and its implementing regulations at 35 CFR Part 107 - States that public (Le., those intended to be accessible to the general public) buildings and conveyances financed with federal funds are designed, constructed, or altered to provide accessibility to the physically handicapped. (b) Section 504 ofthe Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR Part 8 -- Prohibits discrimination in federally assisted programs on the basis of handicap and imposes requirements to ensure that "qualified individuals with handicaps" have access to programs and activities that receive federal funds. (c) Title VIII ofthe Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100-115. MBCDC must complete and submit the City's Disability Non-Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated herein as Exhibit C. In the event MBCDC fails to execute the City's Affidavit, or is found to be in non-compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to MBCDC under the Agreement until compliance and/or cancellation, termination or suspension of the Agreement in whole or in part. In the event the City cancels or terminates the Agreement pursuant to this Article, MBCDC shall not be relieved of liability to the City for damages sustained by the City by virtue of MBCDC's breach of the Agreement. ARTICLE XXXIV NOTICES All notices shall be sent to the parties at the following addresses: City: Robert C. Middaugh, Assistant City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 MBCDC: Roberto Datorre, President Miami Beach Community Development Corporation 945 Pennsylvania Avenue Miami Beach, FL 33139 or such address and to the attention of such other person as the City or MBCDC may from time to time designate by written notice to the other. Page 13 of 19 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officials on the day and date first above indicated. MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, a Florida not-for-profit corporation ATTEST: ~~/-' ~ ..>. "(/ ~;~// 1'- '/' _ . ..tt~L Secretary A~~ Roberto Datorre. President Name, Title of Authorized Signatory CITY OF MIAMI BEACH a Florida Municipal corporation ~~ ftU~ City Clerk ATTEST: David Dermer. Mavor Name, Title of Authorized Signatory F:\NEIG\HSG.CDIHOMElCHDO\MBCDC\CHDO Operating\2004\04 CHDO Operating Agr.doc APPROVED AS TO FORM & LANGUAGE & FOR EXECUnON AAA lA1()"I1~_ ~ ~ ~ Date Page 14 of 19 EXHIBIT A SCOPE OF SERVICES Page 15 of 19 Miami Beach Community Development Corporation Scope of Services A. Maintain eligibility of Miami Beach Community Development Corporation as a qualifying Community Housing Development Organization [CHDO]. Submit annually documentation, the Application for Certification and Board Compliance Tracking Forms, to verify the eligibility of the organization as a CHDO. B. Coordinate the acquisition and rehabilitation of rental multi-family buildings for income- eligible participants and continue to operate a HOME Buyer Assistance Program providing homeownership opportunities to income-eligible participants. Maintain appropriate staff to supervise the operation for the purposes of implementing the following tasks: . Negotiate sales with property owners . Secure property appraisals, environmental clearances, surveys, and housing inspections . Conduct credit counseling . Identify and secure additional funding resources available to implement housing initiatives, including grant resources, bank financing, mortgages, and other funding for HOME Projects . Assist/facilitate closings . Obtain building permits . Assist in coordinating bank inspections . Obtain final survey and other duties as necessary . Elicit input from the community, particularly from low-income program beneficiaries, in decisions regarding design, siting, development and management of affordable housing projects . Undertake the development of affordable housing strategies and programs . Plan and develop new affordable housing initiatives, including rental housing and ownership housing for low-income home buyers, low-income households and persons with special needs when feasible C. Coordinate the activites of mainly private, for-profit agencies in identifying sites, obtaining cost estimates, or selecting contractors. D. Inform the homebuyers of the necessity of executing any necessary agreement, including a Mortgage and Promissory Notes in favor of the City in order to be eligible for HOME Program funds. E. Inform rental participants of the necessity of executing a written lease agreement, initial income certification and annual income verification, and their rights and responsibilities as a tenant. F. Assist in City in carrying out an affirmative marketing requirements G. Provide verifiable staff timesheets to the City on a regular basis. Timesheets will show clearly the time, hours and minutes, allocated to each activity. Staff paid out of HOME Program funds will keep daily time records identifying the time spent on the specific activities as outlined in above description. The timesheets will also identify arrival and Page 16 of 19 departure times. H. Report the receipt of any income earned by MBCDC to the City. Any income earned by MBCDC will be considered program income and will be subject to U.S. HUD regulations and this Agreement. I. Continue the implementation of the following specific initiatives: . Scattered-Site home ownership program, City wide . Scattered-Site rental program, City wide . Rehabilitation and management of an apartment building located at 532 Michigan Avenue (18 units / low and very low income elderly households) . Rehabilitation and management of an apartment building located at 530 Michigan Avenue (9 units / low and very low income elderly households) . Rehabilitation and management of an apartment building located at 516 15th Street (24 units / low and very low income households) . Future housing development initiatives which are owned, sponsored or developed by MBCDC Page 17 of 19 EXHIBIT B BUDGET Page 18 of 19 EXHIBIT C CERTIFICATIONS Page 19 of 19