HomeMy WebLinkAboutC7Q Ship Agreement 04/05 fund
SHIP AGREEMENT
Funding Year 2004-2005
THIS AGREEMENT, entered into this 7tkday of Pt;(€146tzi.., 2005, 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 its principal office located at 945 Pennsylvania
Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC).
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WITNESSETH:
WHEREAS, the City has determined the necessity for providing affordable housing in Miami Beach
through its Consolidated Plan, which was adopted by Resolution No. 2004-25641, on July 28,2004; and
WHEREAS, the City has been designated by the Florida Housing Finance Administration as an eligible
municipality for the receipt of funds as provided under the State Housing Initiatives Partnership (SHIP) Program
pursuant to Chapter 67-37 of the Florida Administrative Code (F.A.C.); and
WHEREAS, the City utilizes SHIP funds provided by the Florida Housing Finance Corporation under the
terms of the SHIP Program in order to expand the supply of decent, safe, sanitary and affordable housing within the
City, for income-eligible persons, by making available funds to rehabilitate dwelling units; and
WHEREAS, MBCDC has operated a "Scattered-Site" homebuyer program since 1990, assisting low- and
moderate-income individuals and families in the purchase of condominiums at various locations throughout Miami
Beach by providing down payment assistance and other forms of aid to the prospective home buyers.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
Terms shall be as defined in the State Housing Incentives Partnership (SHIP) Program, 67-37 F.A.C., and any
amendments thereto (also referred as the SHIP Program Rule). Any term defined in the SHIP Program Rule, not
otherwise defined in this Agreement, shall have the meaning set forth in said Rule.
ARTICLE II
BUDGET AND SCOPE OF SERVICES
MBCDC will utilize the Funding Year 2004/2005 funds in the amount of $382,101, plus $28,782 of
accrued interest and $65,158 of recaptured funds, totaling: $476,041 as set forth in Exhibit "A", attached hereto and
made a part hereof by reference (hereinafter referred to as the Funds, which definition shall also include the
allocation of any additional funds that may be provided by the City in the future as a result of an amendment or
modification of this Agreement), exclusively for rehabilitation, down payment assistance, closing cost assistance,
and home ownership counseling, for its Scattered-Site Home Ownership Program, in accordance with the Scope of
Services in Exhibit "A", attached hereto and made a part hereof by reference.
ARTICLE ill
PROGRAM INCOME
MBCDC agrees that any SHIP Program income generated from the use of the Funds under this Agreement,
or funds repaid for any reason, after making all debt repayments to the City, or other lender, if any, is to be used to
further other affordable housing activities.
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ARTICLE IV
SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE SHIP AND HOME
PROGRAMS
The parties hereto acknowledge that the Funds provided hereunder are also to be used in conjunction with
funds received through the Home Investment Partnerships (HOME) Program. Therefore some or all of the projects
assisted will be required to comply with the rules of both the SHIP and HOME Programs. The State of Florida has
acted to encourage the use of SHIP Program funds in coordination with HOME Program funds by suggesting that in
projects which use funding from both sources, generally the HOME rules will take precedence. However, where
both SHIP and HOME Program reference a particular term or rule, the rule which is more restrictive will apply. Any
violation of these requirements may, at the City's option, result in the full amount of the Funds being immediately
due and payable by MBCDC to the City, and same shall also be considered and treated as an event of default, which
may result in the City's termination for cause of the Agreement pursuant to Article X herein.
MBCDC expressly agrees to the following terms and conditions in conformity with. the SHIP Program
Rule:
(a) Affordability Period. The period of time SHIP assisted units must remain affordable is in accordance
with the SHIP Program Rule, or the term of a Department of Housing and Urban Development (HUD) insured
mortgage, whichever period occurs later. The Funds shall be repaid in their entirety to the City in accordance with
the provisions of the HOME Program regulations 24 CFR Part 92.254, in the event the housing is transferred or sold
for any purpose other than settling the estate of one of the owners.
(b) Repayment of Funds; Transfer of Title. The Funds shall be repaid in their entirety to the City if the
SHIP units are transferred or sold to another owner except as specified herein. Concurrent with the closing on the
property rehabilitated hereunder, the owner shall execute a Restrictive Covenant incorporating the terms of this
secti on.
(c) Projects must provide safe, sanitary, and decent residential housing for low-income and very low-
income, and moderate-income persons (i.e., a person whose income is within specific income levels set forth herein,
as documented by HUD).
(d) Income Targeting. MBCDC shall ensure and maintain written documentation that conclusively
demonstrates that each project assisted in whole or in part with SHIP Funds provides benefit to very-low (families
whose annual incomes that do not exceed 50 percent of the median family income for the area) and low-income
(families whose annual incomes do not exceed 80 percent of the median income for the area) and moderate income
(families whose annual incomes which do not exceed 120% of the area median income), as determined and
published from time-to-time by HUD.
(e) MBCDC affirms that it maintains a financial management system that conforms to the financial
accountability standards of Attachment F of the Office of Management and Budget (OMB) Circular A-110.
(f) Records: MBCDC agrees to maintain all records sufficient to meet the requirements of the SHIP
Program Rule, including, but not limited to: SHIP Program records, project records, and SHIP Program
administration records. All records required herein shall be retained and made accessible for a period of at least
three (3) years after closing, as provided in the SHIP Program Rule, and Florida Statutes Chapter 119.
(g) Property Standards. For the duration of this Agreement, and any amendments hereto, housing that is
assisted with SHIP funds, at a minimum, must meet the Housing Quality Standards ofCFR Section 882.109. In
addition, housing that is newly constructed or substantially rehabilitated with SHIP funds must meet all applicable
local codes, rehabilitation standards, ordinances, and zoning ordinances.
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(h) Maximum and Minimum Amount of SHIP Funds Per Unit. The minimum amount of SHIP funds that
can be invested is $1,000 per dwelling unit, and the maximum amount of SHIP subsidy is limited to $40,000 per
unit.
(I) Environmental Clearance. For each activity or project assisted hereunder, immediately after a site is
identified, MBCDC shall obtain the City's written environmental clearance statement and hereby agrees to comply
with any and all requirements as may be set forth in the Site Environmental Clearance Statement.
G) Affirmative Marketing. MBCDC acknowledged that it is unlawful to discriminate on the basis of race,
creed, color, religion, age, sex, sexual orientation, marital status, familial status, national origin or handicap.
MBCDC agrees to adopt affirmative marketing procedures and requirements, in writing, for SHIP-assisted housing,
as set forth in Chapter 67-37 F.A.C.
(k) Affordable Housing: Home Ownership. Housing that is for purchase qualifies as affordable housing
only if the housing has an initial purchase price, or appraised value after rehabilitation or repair, that does not
exceed 90% of the average purchase price for the Miami-Dade Metropolitan Statistical Area (MSA) of$331 ,579 for
new and existing homes, and subject to change from time-to-time, as determined by the Florida Housing Finance
Corporation; is the principal residence of an owner whose family qualifies as very low-, low- or moderate-income at
the time of purchase; and is subject to resale restrictions or recapture provisions established by the City for the
required period of affordability.
ARTICLE V
ELIGmLE COSTS
MBCDC agrees that eligible costs for the projects under this Agreement are limited to those eligible costs as
outlined in Chapter 67-37.007 of the SHIP Program Rule. It is expressly agreed by the parties that no funds
obtained hereunder will be used to acquire, rehabilitate or otherwise assist mobile homes.
ARTICLE VI
METHOD OF PAYMENT
(a) MBCDC shall be paid monthly for eligible costs expended, as permitted under the Scope of Services in
Exhibit "A", based on actual costs expended, with supporting documentation provided for expenses that are
considered reasonable and necessary and approved by MBCDC's authorized representative.
(b) Any payment or disbursement of Funds, or other monies which may be due under the terms of this
Agreement, may be withheld at the City's sole discretion pending of the receipt and approval by the City of all
reports and documents which MBCDC is required to submit to the City pursuant to the terms of this Agreement and
any amendments thereto.
(c) MBCDC agrees to provide evidence of appropriate licenses and insurance as required by this Agreement for
each location assisted hereunder, such evidence must be kept on file with the City. No payments or disbursements
will be made without evidence of appropriate insurance required by this Agreement.
ARTICLE VII
SUBCONTRACTS
(a) The parties agree that the work or services covered by this Agreement, including but not limited to
rehabilitation work or services, may be subcontracted without the prior written approval of the City, but MBCDC
must obtain at least three bids for all rehabilitation work estimated to be in excess of $500. Copies of all bids
received shall be kept in the job file. A copy of all executed contracts must be forwarded to the City within ten (10)
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days after execution.
(b) MBCDC agrees to include a statement in all contracts and subcontracts that if executes or causes to be
executed the contractor or subcontractor(s) shall hold the City harmless against all claims of any nature arising out
of the contractor's performance of work under the contract and this Agreement.
ARTICLE VIII
CONDITIONS OF SERVICE
As a condition of these services, MBCDC agrees to comp ly with the regulations of the SHIP Program Rule.
( a) Equal Opportunity: MBCDC agrees to abide by and be governed by the Equal Opportunity and Fair Housing
laws. No person in the United States shall on the grounds of race, color, national origin, religion, disability or sex
be excluded from participation in, or be denied the benefits of or be subjected to discrimination under any program
or activity funded in whole or in part with SHIP Program funds.
(b) Housing assisted with SHIP funds shall be subject to testing and abatement activities for lead-based paint.
(c) Additionally, MBCDC agrees to comply with those statutes, regulations and executive orders, as amended, and
as set forth in Exhibit "B", attached hereto and herein incorporated by reference.
ARTICLE IX
TERM OF AGREEMENT
This Agreement shall be deemed effective following execution of same by all parties hereto. The City and
MBCDC mutually agree that the Funds are reserved for MBCDC for the designated time period as follows:
(a) Fiscal Year 2004/05 funds, in the amount of $382,101, plus $28,782 of accrued interest and $65,158 of
recaptured funds, totaling: $476,041 is reserved through March 30, 2006. MBCDC shall have arranged for the
rehabilitation of a minimum of fourteen (12) dwellings prior to March 30, 2007, pursuant to this Agreement. If
MBCDC is not in compliance with the schedule attached hereto, the City, in its sole discretion, shall have the right
to automatically terminate this Agreement; declare same null and void with regard to the remaining uncommitted
Funds; require, at the City's option, that MBCDC immediately pay the entire amount of the funds back to the City;
and take any and all other actions it deems necessary to carry out the commitments of the SHIP Housing Assistance
Plan, including selecting another service provider for all or part of the unspent Funds.
ARTICLE X
TERMINATION
This Agreement may be terminated by the City, in whole or in part, for cause (as more specifically defined
in Article XXIV herein), or for convenience, in accordance with the provisions of the SHIP Program Rule. Written
notification shall be submitted 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 amendments, alterations, variations, modifications or waivers of any provisions to this Agreement,
including an increased allocation of Funds, will only be valid when they have been reduced to writing and duly
signed the both parties hereto. Any changes which do not substantially change the Scope of Services or increase the
total amount payable under this Agreement, shall be valid only when reduced to writing and signed by the City
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Manager (or his designee) and MBCDC.
ARTICLE XII
CONFLICT OF INTEREST
(a) MBCDC shall comply with the standards contained within the SHIP Program Rule.
(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, dealing with a for-profit
subsidiary or affiliate organization, an organization with overlapping board of directors, or an organization for which
MBCDC is responsible for appointing members. MBCDC shall report this information to the City upon forming the
relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported in the
City required Progress Report.
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 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 shall maintain during the term of this Agreement, the insurance specified below.
(1) General Liability: $500,000 combined single limit for bodily injury and property damage, for each
occurrence.
(2) Contractual Liability: the policy must include coverage to cover the above indemnification.
(3) Automobile and vehicle coverage in the amount of$500,000 per occurrence shall be required when the use
of automobiles and other vehicles are involved in any way in the performance of the Agreement, including non-
owned automobile coverage.
(4 ) Workers' Compensation Coverage as per statutory limits of the State of Florida.
(5) Builders Risk/Comprehensive Fire and Hazard Insurance: MBCDC shall deliver to the City the original
policy of Builder's Risk and Comprehensive Fire and Hazard Insurance in completed value form with extended
coverage in the amount of the full insurable value of the Project upon completion of construction, issued by a
company satisfactory to the City.
(6) Flood Insurance: If the floor grade of the first level of the building is determined to be below the base
floodplain elevation required by the Federal Emergency Management Agency (FEMA) of 8 feet above NGVD,
MBCDC shall deliver to the City evidence satisfactory to the City that the premises are covered by flood insurance
supplied by the Federal Insurance Administration to the maximum amount available, all as provided in the Flood
Disaster Protection Act of 1973, as amended, together with appropriate endorsement. MBCDC agrees that the City
shall have the right to take any action necessary to continue said insurance in full force.
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MBCDC shall submit to the City ORIGINAL Certificates of Insurance for the above coverages with
the City of Miami Beach, Florida named as an additional insured. 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. In the event of such automatic termination, MBCDC shall immediately return the entire amount of the
Funds to the City.
ARTICLE XIV
REPORTS
(a) Progress Reports. MBCDC agrees to submit monthly progress reports to the City, describing the status of
each proposed project and achievement of the project objectives as provided in the Scope of Services in Exhibit
"A", attached hereto. The progress reports shall be submitted no later than ten (10) days after the end of each
month, and shall continue until such time as all Funds are expended on specific projects.
(b) It will be the responsibility of MBCDC to notify the City in writing, of any action, law, or event, that will
impede or hinder the success of the projects and activities as provided in this Agreement. After such notification
MBCDC will take whatever actions the City deems appropriate to ensure the success of the projects.
If the required reports described above are not submitted to the City or are not completed in a manner acceptable to
the City, the City may withhold further payments until they are completed and/or revised, or may take such other
action as it 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 Florida
Housing Finance Corporation (FHFC) may deem necessary, there shall be made available to the City Administration
and/or representatives of the FHFC 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 its 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, for at
least three (3) years after the close of the fiscal year in which the Funds reserved hereunder are fully expended.
ARTICLE XVI
CO:MPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS
MBCDC agrees to comply with all applicable Federal and State regulations as they may apply to program
administration, specifically including, but not limited to, the SHIP and HOME Program Rule(s) 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 compensation originated from grants under the SHIP Program and are contingent upon approval of
activities by the State of Florida.
(b) Title and paragraph headings are for convenient reference and are not a part of this Agreement.
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(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 have precedence. In the event of conflict between the terms of
this Agreement and any terms or conditions contained in the SHIP Program Rule, the terms of the SHIP Program
Rule shall have precedence, unless HOME Program Funds are also being used, in which case the provisions of
Article IV shall apply.
(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.
ARTICLE XVIll
ACCESS TO RECORDS
MBCDC agrees to allow access during normal business hours to all financial, SHIP Program, and HOME
Program (if applicable) records to authorized Federal, State or City representatives, including but not limited to, the
purposes set forth in Article XV herein, and agrees to provide such assistance as may be necessary to facilitate the
conduct of a financial or operational 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, and or State and/or Federal representatives.
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 Florida Housing Finance Corporation, under the State
Housing Initiatives Partnership (SHIP) Program, and administered by the Community/Economic Development
Department of the City of Miami Beach as the entity which provided funds for the project.
ARTICLE XXI
SUCCESSORS AND ASSIGNS
MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal
representatives, successors, and assigns.
ARTICLE XXII
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 they shall not be deemed
entitled to the Florida Workers' Compensation benefits as an employee of the City.
ARTICLE XXIll
ASSIGNMENT
This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the
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City. The City may terminate this Agreement for cause 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 Article.
Transfer requiring the City's prior written consent shall include but not be limited to transfers of an interest of more
than five (50/0) percent ownership in MBCDC's stock by pledge, sale, or otherwise; if MBCDC makes an
assignment for the benefit of its creditors, uses this Agreement as security or collateral for any loan; and/or if
MBCDC is involved in any bulk transfer of its business or assets. A merger, dissolution, consolidation, conversion,
liquidation or appointment of a receiver for MBCDC, shall also be deemed an assignment of this Agreement, and
will require the prior written consent of the City thereto.
ARTICLE XXIV
TERMINATION FOR CAUSE AND/OR FOR CONVENIENCE
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) 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) Failure to submit any required report to the City or submitting any required report which is late, incorrect, or
incomplete in any material respect;
(c) Implementation of this Agreement, for any reason, is rendered impossible or infeasible;
(d) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by
the City, including providing substantiating documentation when requested by the City;
(e) Any evidence offraud, waste or mismanagement as determined by the City's monitoring ofproject(s) under
this Agreement, or any violation of applicable SHIP and/or HOME Program Rules and regulations, or of any
applicable City, State, County, and/or Federal laws, ordinances, code provisions, ordinance and/or other regulations;
(f) MBCDC'S insolvency or bankruptcy; and
(g) An assignment or transfer of this Agreement or any interest therein which has not been approved by the City
pursuant to Article XVIII herein.
If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such
notice of default to MBCDC, at the expiration of said thirty (30) day period (or such additional period of time as
may be permitted by the City, 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 Funds shall immediately become due and payable to the City. The
City shall further be fully discharged from any and all liabilities, duties and terms arising out of, or accruing by
virtue of this Agreement. In the event of a default for cause the City may also, at its option, avail itself of any and all
remedies pursuant to 24CFR part 85.43, as amended from time to time, including suspension in whole or in part, of
any and all MBCDC' s other grant award( s); recapture of those funds; and any other remedies that may be available
at law or in equity.
Notwithstanding this Article XXIV, this Agreement may be terminated by the City in whole or in part,
without cause and for the City's convenience, upon the furnishing of thirty (30) days written notice to MBCDC. In
the event of termination for convenience by City, MBCDC herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature against the City, its agents, servants and
employees.
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ARTICLE XXV
ADDITIONAL REMEDIES
In the event of termination of this Agreement, the City shall additionally 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 MBCDC. The City shall be entitled to recover all costs of such
actions, including reasonable attorney's fees. Further City and MBCDC hereby knowingly and intentionally waive
the right to jury trial in any action or proceeding that City and MBCDC may herein institute against each other with
respect to any matter arising out of or relating to this Agreement or the Funds.
ARTICLE XXVI
MAINTENANCE AND RETENTION OF RECORDS
MBCDC agrees that it will maintain all records required pursuant to Chapter 67-37, F.A.C., in an orderly
fashion in a readily accessible, permanent and secure location, and that it will prepare and submit all reports
necessary to assist the City in meeting record keeping and reporting requirements thereunder.
( a) Records shall be maintained for a period of three (3) years after the closeout of funds under this Agreement
except as provided herein in paragraphs (b) and (c).
(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 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 three years AFTER the required
period of affordability.
ARTICLE XXVII
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 the Funds reserved hereunder, less any amount of the
Funds actually paid to MBCDC by the City at the time of the alleged breach. 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 the Funds, less any amount, in whole or in part, of the Funds
actually paid to MBCDC by the City at the time of the alleged breach. 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 the Funds, less any amount, in whole or in part, of the Funds actually paid to
MBCDC by the City at the time of the alleged breach, 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 XXVIII
VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida,
both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for
any litigation arising out of this Agreement shall be Miami-Dade County, Florida, ifin state court, and the
U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS
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AGREEMENT, MBCDC AND THE CITY EXPRESSL Y WAIVE ANY RIGHTS EITHER PARTY
MA Y HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF, THIS AGREEMENT
ARTICLE XXIX
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 purposes described herein, originated from grants of State Housing Incentives Partnership (SHIP)
Program funds, and must be implemented with all of the applicable rules and regulation of the Florida Housing
Finance Corporation. It is expressly understood and agreed that in the event of curtailment or non-production of
said SHIP Program funds, that the financial sources necessary to continue to pay MBCDC compensation hereunder
will not be available and that this Agreement will thereby automatically 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.
ARTICLE XXX
NOTICES
All notices shall be sent to the parties at the following addresses:
City:
Thomas N. Urriola, Interim Director
Housing and Community Development Division
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
MBCDC:
Roberto Datorre, President
Miami Beach Community Development Corporation
945 Pennsylvania Ave.
Miami Beach, FL 33139
The above parties may change such addresses at any time upon giving the other party written notification.
All notices under this Agreement must be in writing and shall be deemed to be served when delivered to the address
of the addressee. All notices served by mail shall be registered mail, return-receipt requested.
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IN WITNESS WHEREOF, The parties hereto have caused this Agreement to be executed by their duly
authorized official(s), on the day and year first above written.
MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION
ATTEST:
($.;/ ~
~-
. - - atorre, President
Secretary
ATTEST:
OF MIAMI BEACH
~~.r~
City Clerk Robert Parcher
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~~ /11t;cS
~ Date
EXHmIT A
Scope of Services
Services to be Provided:
MBCDC will provide: Rehabilitation services, down payment assistance and/or closing cost assistance to home
buyers as part of its Scattered-Site Home Ownership Program for a minimum of twelve (12) dwelling units, in
accordance with the Schedule of Expenditures (See Exhibit A-I)). In addition, MBCDC will provide home
ownership counseling to a minimum of fifty (50) families.
Expenditure Deadline:
MBCDC acknowledges and agrees that all Funds provided under this Agreement shall be expended, documented
and invoiced to the City prior to June 30, 2007 (see attached Schedule of Expenditures Exhibit A-I).
Recapture of Funds:
Dwelling units that utilize SHIP funds which are sold to eligible home buyers shall be subject to subsidy recapture
provisions which are consistent with those already adopted by the City Local Housing Assistance Plan, adopted
April 14, 2004. It is the City's intent to allow the homeowner to realize the equity from their home.
The period of time SHIP assisted units must remain affordable is in accordance with the SHIP Program Rule, as
applicable, or the term of a HUD insured mortgage, whichever period occurs later. When SHIP funds provided
hereunder are combined with HOME funds, the provisions of the HOME Program with regard to the period of
affordability will apply.
Payment:
Payments by the City to MBCDC shall include those eligible costs as follows:
Construction Costs:
Actual cost of rehabilitating housing, including: labor and materials necessary to meet the requirements of
the South Florida Building Code, the City of Miami Beach Building Codes, and U.S. HUD Section 8
Housing Quality Standards.
Current or incipient code violations - improvements to correct violations or conditions which may develop
into hazardous conditions or code violations.
Good and readily maintainable condition - improvements necessary to put the property and facilities in a
condition which requires a minimal amount of maintenance, and when appropriate, improvements to
conserve energy.
General property improvements - improvements which are in addition to those required by applicable codes
and ordinances, but which are incidental to the repairs being done to remedy code violations. These
improvements may be considered appropriate, provided they are economically practical and in the public
interest.
Rehabilitation soft costs:
Architectural - reasonable fees paid for professional services in preparing work write-ups, cost estimates,
working drawings and specifications; for supervision, for cost certification; and for other designated tasks.
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Permit fees - those fees paid to the City's Building Services Division for permits necessary to undertake the
work outlined in the application for funding as a response to the SHIP Notice of Funding Availability of
October 6,2005.
Construction supervision costs, in an amount equal to 10% of the value of the rehabilitation and .5% of the
appraised value of the unit.
Down Payment Assistance
Closing Costs Assistance
Home Ownership Counseling, not to exceed two (2) percent of the Funds allocation:
(FY 2004/2005 allocated to MBCDC $476,041 x 2% = $ 9,521)
Required Documentation:
For each home buyer assisted with the Funds provided hereunder, MBCDC shall required to keep the following
documentation:
A copy of the letter of commitment/award to the SHIP recipient.
Completed application form, signed and dated, containing income and asset information, and household
characteristics, including age of head of household, family size, race, and special needs, if any. The information
must be kept in a form acceptable to the City. The combined household annual anticipated gross income of an
applicant must be verified and certified using procedures such as those established by U.S. HUD or the Farmers
Home Administration. Whichever method is used, annual gross anticipated income must be used and the SHIP
income limits cannot be exceeded.
Income verification forms for each adult in the household, dated within 120 days of the award date. Award letter to
recipients should include the requirement to notify the City's SHIP Coordinator immediately of any change in
income, assets, or household size occurring between the award letter and closing.
A signed affidavit of no income change must be completed, if the closing is more than 120 days after the completion
of the original income verification.
A copy of an appraisal, certified to the lender, dated within ninety (90) days of the closing date, showing a value at
least equal to the selling price.
A copy of the purchase contract.
Letter of commitment or written agreement.
Loan closing statement.
Lien documentation including the required recapture provisions, executed by the purchaser, and recorded in the
public records.
A copy of the initial inspection report and work write-up, describing the specific activities to be included in the
rehabilitation, and the estimated cost.
Copies of bids or proposals from contractors. [At least three, if possible, for all work in excess of$500 in value.]
A copy of the executed construction contract for the rehabilitation work. [copies of the contractor's license, and
proof of insurance should be included.]
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Copies of initial, interim and final inspection reports.
Copies of all construction payment requests.
Copies of all partial and final releases of lien or lien waivers
Proof of final payment.
Copy of the certificate of completion or certificate of occupancy, as appropriate.
Summary reports of all meetings with the home buyer, contractor[ s] and MBCDC staff.
All relevant correspondence.
14
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EXHmIT B
OTHER REQUIREMENTS
As the City of Miami Beach is providing this funding through State funds, combined with Federal funds, MBCDC
agrees to comply with the following statutes, regulations and executive orders, as amended, as they apply. These
requirements are incorporated herein by reference.
1. Freedom of Information and Privacy Acts
- Freedom of Information Act (5 V.S.C. 552), and the Privacy Act of 1974
(5 V.S.C. 552a)
2. Equal Opportunity
- Title VI of the Civil Rights Act of 1964 (42 V.S.C. 2000d) and 24 CFR Part 1
- Title VIII of the Civil Rights Act of 1968 (42 V.S.C. 3601)
- Executive Order 11063, as amended by Executive Order 12259
- Executive Orders 11246, 11265, 12138 and 12432
- Section 3 of the Housing and Vrban Development Act of 1968 (12 V.S.C. 170)
- Section 504 of the Rehabilitation Act of 1973 (29 V.S.C. 794)
- The Age Discrimination Act of 1975 (42 V.S.C. 6101)
- The Fair Housing Amendments Act of 1988
3. Environmental Review
- The National Environmental Policy Act (42 V.S.C. 4321, et seq)
- The Council on Environmental Quality Regulations (40 CFR Parts 1500-1508)
- Environmental Review Procedures (24 CFR Part 58)
- National Historic Preservation Act of 1966
- National Flood Insurance Act of 1968 as amended by the Flood Disaster Protection
Act of 1973
4. Lead Based Paint
- Lead Based Paint Poisoning Prevention Act (42 V.S.C. 4801, et seq)
- HUD Lead Based Paint Regulations (24 CFR Part 35)
5. Asbestos
- Asbestos Regulations (40 CFR 61, Subpart M)
- V.S. Department of Labor Occupational Health and Safety (OSHA) Asbestos
Regulations (29 CFR 191.1101)
6. Handicapped Accessibility
- Architectural Barriers Act of 1968 (42 V.S.C. 4151 and 24 CFR Part 41)
7. Labor Standards
- The Davis-Bacon Act (40 V.S.C. 276a) as amended
- The Contract Work Hours and Safety Standards Act (40 V.S.C. 327-333)
- Federal Labor Standards Provisions (29 CFR Part 5.5)
ADDITIONALLY, ALL PARTIES AGREE TO COMPLY WITH ALL EXISTING FEDERAL, STATE AND
LOCAL LAWS AND ORDINANCES HERETO APPLICABLE, AS AMENDED.
F:\NEIG\HSG-CD\ THOMAS\ShipGral\NOF A2004-05\Agreement-MBCDC .doc
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