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HomeMy WebLinkAboutHOME PROGRAM AGREEMENTHOME PROGRAM AGREEMENT THIS AGREEMENT, entered into this ~7y~ day of ~ , 200o__~ by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (City), and MBCDC: Westchester Apartments LLC., a Florida limited liability company, with offices located at 945 Pennsylvania Avenue, Miami Beach, Florida, as successor in interest to the Miami Beach Community Development Corporation, pursuant to a one-time only assignment approved pursuant to City Resolution No. 2005-25864 (hereinafter referred to as "Owner"). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the U.S. Department of Housing and Urban Development (HUD) as a Participating Jurisdiction to receive funds through the HOME Investment Partnerships (HOME) Program under 24 CFR 92; and WHEREAS, the City has established a HOME Program under the rules of HUD, which provides financial assistance for the purpose of providing affordable housing within the City; 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, in accordance with the HOME Program regulations, the City must reserve a minimum of fifteen (15) percent of each fiscal year's HOME allocation for a CHDO set-aside for investment in housing to be developed, sponsored or owned by a designated CHDO; and WHEREAS, on July 18, 2001, the City Commission approved Resolution No. 2001-24517, which adopted the City of Miami Beach One-Year Action Plan for Federal Funds for Fiscal Year 2001/2002, and allocated $800,000 in HOME Program funds to MBCDC, of which $207,473 remains available for MBCDC to commit to a project; and WHEREAS, on July 31, 2002, the City Commission approved Resolution No. 2002-24948 which adopted the City of Miami Beach One-Year Action Plan for Federal Funds for Fiscal Year 2002/2003, which allocated $800,000 in HOME Program funds to MBCDC; and WHEREAS, on July 2, 2003, the City Commission approved Resolution No. 2003-25259 which approved MBCDC's request to the City to utilize $1,007,473 of the previously allocated Fiscal Year 2001/2002 and Fiscal Year 2002/2003 CHDO funds for a CHDO project to acquire and rehabilitate the apartment building known as the Westchester Apartments, located at 516 15th Street, Miami Beach (the Project); and WHEREAS, on April 20, 2005, the City Commission approved Resolution No. 2005-25864, which awarded $298,218 of HOME Notice of Funding Availability (NOFA) funds to MBCDC, for the rehabilitation the Project; and WHEREAS, on July 18, 2005, the City published a NOFA for HOME Program fimds, in the amount of $522,493, to be used for acquisition and/or rehabilitation of existing multi-family buildings containing four or more units, for the purpose of the provision of affordable rental housing; and WHEREAS, on September 9, 2005, the Loan Review Committee reviewed the NOFA application submitted by MBCDC for the Project, and recommended that the City Commission approve and award the HOME Program fimds, in the full requested amount of $522,493; and WHEREAS, MBCDC has created a not-for-profit entity which has assumed all interest and title to the property located at 516 15th Street and is a successor in interest to MBCDC for the Project pursuant to this Agreement; and WHEREAS, accordingly, the City, in Resolution 2005-25864, agreed and consented to a one-time only assignment of MBCDC's rights and obligations for the Project to MBCDC: Westchester Apartments, LLC. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement the terms listed below shall have the following meanings: (a) HOME Program: HOME Investment Partnerships Program, as set forth in 24 CFR Part 92, as amended. (b) HUD: United States Department of Housing & Urban Development or any successor agency. (c) Funds: HOME Program funds. (d) CHDO: Community Housing Development Organization as defined in the HOME Investment Partnerships Program, 24 CFR, Part 92, as amended, and CPD Notice 94-02. (e) Terms defined in the HOME Investment Partnerships Program Final Rule, 24 CFR Part 92, and any amendments thereto, not otherwise defined in this Agreement, shall have the meaning set forth in said Rule. (e) HOME Assisted Units: A term that refers to the number of units in a project assisted with HOME Program funds for which rent, occupancy, and resale/recapture restrictions apply. 2 ARTICLE II ALLOCATION OF HOME FUNDS In consideration of the performance by Owner of its role and responsibilities set forth in this Agreement, the City agrees to provide a conditional grant of HOME Program funds to Owner in the amount of Five Hundred Twenty-Two Thousand Four Hundred Ninety-Three Dollars ($522,493) (Funds). The Funds will be utilized by Owner for a CHDO project that provides for the rehabilitation and operation of the building located at 516 15th Street, Miami Beach, that will provide a minimum o f twenty-four (24) rental units for income qualified persons. Owner will acquire and rehabilitate the building as more fully described in the Scope of Services (Exhibit A) and Budget (Exhibit B). Owner will maintain required HOME Program rent and occupancy limitations for a minimum period of 15 years (the Affordability Period) which shall commence with the issuance of the final approved Certificate of Completion by the City's Building Department following the planned rehabilitation. ARTICLE III PROCEEDS FROM HOME INVESTMENT In accordance with the 24 CFR Part 92.300 (a)(2), Owner may retain the proceeds from the investment of its CHDO set aside fimds for use in other housing activities which benefit low-income families. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE HOME PROGRAM Owner expressly agrees to the following terms and conditions in conformity with the HOME Program Final Rule. (a) Repayment of Funds. The Funds (which definition shall also hereinafter 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) shall be repaid in their entirety if the HOME units do not meet the affordability requirements for the Affordability Period in accordance with the terms of this Agreement and the HOME Program Regulations. Any violation of these requirements may, at the City's option, result in thc entire amount of the Funds, as indicated in Article II or as subsequently amended or modified, being tetra-ned and/or otherwise repaid by Owner to the City, and same shall be considered and treated as an event of default resulting in thc City's termination for cause of thc Agreement, pursuant to Article XXVI herein. The City reserves the right to review the affordability requirements, as set forth herein. Concurrent with its execution of this Agreement and/or any projects pursuant to this Agreement, Owner shall execute a Mortgage and Note in the format provided by thc City, incorporating the terms of this section, which shall be recorded in the Official Records of Miami-Dade County Florida. Thc affordability requirements and thc Affordability Period apply without regard to thc term of any loan or mortgage or the transfer of 3 ownership. They shall be imposed by deed restrictions, covenants running with the land, or other mechanisms approved by HUD, except that the affordability requirements and the Affordability Period may terminate upon foreclosure or transfer in lieu of foreclosure. (b) Rent Limitation. HOME assisted rental units will bear rents in accordance with 24 CFR 92.252, as published from time-to-time by HUD. The City shall provide a HOME Program rent schedule annually to Owner. (c) Rent schedule and utility allowances. In accordance with 24 CFR 92.252(b)(c) and (d), the City must review and approve rents and the monthly utility allowances proposed by the owner prior to initial occupancy. Owner must re-examine and document the income of each tenant living in the HOME assisted units annually. The maximum monthly rent must be recalculated by Owner and reviewed and approved by the City annually. Any increase in rents for HOME-assisted units is subject to the provisions of outstanding leases and, in any event, the owner must provide the tenant with not less than thirty (30) days written notice before implementing any rent increase. (d) Owner shall comply with all applicable federal regulations as they may apply to restrictions and limitations regarding real property under Owner's control acquired or improved in whole or in part with HOME funds. (e) The Project must provide safe, sanitary, and decent residential housing for income eligible tenants (i.e., persons whose income is within specific income levels set forth by HUD). (f) Income Targeting. Owner shall maintain written documentation that conclusively demonstrates that the project assisted in whole or in part with HOME funds provides benefit to very- low income households (annual income does not exceed 50 percent of the median family income for the area) and low-income households (annual income does not exceed eighty percent (80%) of the median income for the area) as required. (g) Records: Owner shall maintain all records sufficient to meet the requirements of 24 CFR 92.508(a)(2) program records, 92.508(a)(3) project records, 92.508(a)(5) other Federal requirements records, and 92.508(a)(6) program administration records. All records required herein shall be retained and made accessible as provided in 24 CFR 92.508 (c) and (d) and Florida Statutes Chapter 119. (i) Property Standards. For the duration of this Agreement and any amendments hereto, housing that is assisted with HOME funds, must meet all applicable local codes, rehabilitation standards, ordinances and zoning ordinances at the time of project completion. The City shall conduct annual or bi-annual, as required, on-site inspections of the Project to assure compliance with housing codes. The City may select a sample of the units in the Project to satisfy the inspection requirements. (j) Environmental Review. For the Project described in the Scope of Services (Exhibit A), attached hereto, Owner shall obtain a Phase I, Environmental Assessment, and agree to mitigate any hazardous conditions identified therein. 4 (k) Affirmative Marketing. In order to provide persons in the housing market area with a range of housing choice, regardless of race, color, religion, sex, handicap, familial status, or national origin, Owner agrees to administer the HOME Program in a manner that will affirmatively further the purposes of Title VI of the Civil Rights Act of 1964 at 24 CFR 1, the Fair Housing Act at 24 CFR 100 and Executive Order 11063 at 24 CFR 107. Owner will submit its written procedures that implement these requirements for review and approval by the City. (1) Tenant and Participant Protection. Owner agrees that the lease to be executed with the tenants of rental housing will be in accordance with 24 CFR Part 92.253. Furthermore, if HOME assistance is provided to a CHDO, the CHDO must adhere to a fair lease and grievance procedure approved by the City and provide a plan for and follow a program of tenant participation in management decisions (24 CFR Part 92.303). (m) CHDO Capabilities. Owner, as a CHDO, agrees that it will function as an owner ofthe Project and that it shall have effective management control. (n) Change in Status. Owner agrees to advise the City in writing within thirty (30) days of any organizational, operational or legal status changes made by Owner that affect documents that were submitted by Owner to obtain CHDO status. (o) Energy Star. All new buildings and gut rehab shall be designed to meet the National ENERGY STAR efficiency performance specification. All procedures shall comply with National Home Energy Rating System guidelines. Also select ENERGY STAR appliances. ARTICLE V ELIGIBLE COSTS Owner agrees that eligible costs for the Project under this Agreement are limited to those eligible costs as outlined in 24 CFR Part 92.206 of the HOME Program regulations. ARTICLE VI DISBURSEMENT OF FUNDS (1) The Funds shall be used by Owner exclusively for acquisition and rehabilitation of real property. (2) Any payment due under the terms o f this Agreement may be withheld pending the receipt and approval by the City of all reports and documents which Owner is required to submit to the City pursuant to the terms of this Agreement or any amendments thereto. (3) No payments will be made without evidence of appropriate insurance required by this Agreement. Such evidence must be on file with the City. (4) Owner understands and agrees that disbursement requests for Funds under this Agreement are only to be requested when the funds are needed for payment of eligible costs. The amount of each 5 request must be limited to the amount needed. ARTICLE VII SUBCONTRACTS (a) Owner shall use its best efforts to include a statement in all subcontracts that it executes that the subcontractor shall hold the City harmless against all claims o f whatever nature arising out o f the subcontractor's performance of work under this Agreement to the extent allowed by law. (b) If Owner subcontracts, a copy of the executed subcontract must be forwarded to the City within ten (10) days after execution. ARTICLE VIII CONDITIONS OF SERVICE (a) As a condition of these services, Owner agrees to comply with the HOME Program Final Rule, 24 CFR Part 92, and any Amendments or Notices issued pursuant thereto. (b) Owner agrees to comply with the requirements of Executive Orders 11625 and 12432 concerning Minority Business Enterprise and 12138 Women's Business Enterprise which encourage the use of minority and women's business enterprises, to the maximum extent possible, in connection with HOME-funded activities. (c) Owner agrees to comply with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4201-4655) and 49 CFR Part 24. The Owner acknowledges having received the HUD Manual entitled "All the Right Moves: Relocation and Assistance in HUD Programs" and HUD Handbook 1378 and will comply with all requirements contained therein. (d) Owner agrees to comply with all of the following federal laws, executive orders, and regulations pertaining to fair housing and equal opportunity. (1) Title VI of the Civil Rights Act of 1964, As Amended (42 U.S.C. 2000d) -- pertaining to discrimination under any program or activity receiving federal financial assistance on the basis of race, color, or national origin. Its implementing regulations may be found in 28 CFR Part 1. (2) Title VIII of the Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100-115 -- Prohibiting discrimination in the sale or rental of units in the private housing market. (3) Equal Opportunity in Housing (Executive Order 11063, as amended by Executive Order 12259) and implementing regulations at 24 CFR Part 107 -- Prohibiting discrimination in housing or residential property financing related to any federally assisted activity. (4) Age Discrimination Act of 1975, As Amended (42 U.S.C. 6101) and its implementing regulations at 24 CFR Part 146 -- Prohibiting age discrimination in programs receiving federal financial assistance. 5) Equal Employment Opportunity, Executive Order 11246, As Amended and its implementing regulations at 41 CFR Part 60 -- Prohibiting discrimination against any employee or applicant for employment. Provisions to effectuate this prohibition must be included in all construction contracts exceeding $10,000. (e) Owner agrees to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) -- Requires that, to the greatest extent feasible, opportunities for training and employment arising from HOME funded projects will be provided to low-income persons residing in the program service area; and, to the greatest extent feasible, contracts for work to be performed in connection with HOME funded projects will be awarded to business concerns that are located in, or owned by persons residing in the program service area. (f) Owner will ensure that all units in a 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 35. (g) Owner agrees to comply with the Federal Labor Standards Provisions, as described in HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community Development Programs). (h) Owner agrees to comply with the requirements of 24 CFR part 24 regarding debarment and suspension. ARTICLE IX TERM OF AGREEMENT This Agreement shall be effective upon execution by both parties and shall terminate at the conclusion of the 15 year period of affordability (Affordability Period), as specified in 24 CFR 92.252 (affordable rental housing). ARTICLE X TERMINATION The City and Owner agree that this Agreement may be terminated by the City, in whole or in part, for cause (as defined in Article XXVI herein and in accordance with the provisions of 24 CFR Part 85.43) or for convenience (as defined in Article XXVII and in accordance with the provisions of 24 CFR, Part 85.44). A written notification shall be required at least thirty (30) days prior to the effective date of such termination, and shall include the reason for the termination (if for cause), the effective date, and in the case of a partial termination, the actual portion(s) to be terminated. ARTICLE XI AMENDMENTS Any alterations, variations, modifications or waivers of any provisions of this Agreement, including an increased allocation of funds, shall only be valid when they have been reduced to writing and signed by the City and Owner. ARTICLE XII CONFLICT OF INTEREST (a) Owner shall comply with the standards contained within 24 CFR Part 92.356 which states that no owner, developer or sponsor of a project assisted with HOME funds (or officer, employee, agent or consultant of the owner, developer or sponsor) whether private-for-profit or non-profit, may occupy a HOME-assisted affordable housing unit in a project. This provision does not apply to an employee or agent of the owner or developer of a rental housing project who occupies a HOME- assisted unit as the project manager or maintenance worker. Exceptions may be granted by the City in accordance with 24 CFR Part 92.356(f)(2). (b) Owner shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. Owner shall make such disclosure in writing to the City immediately upon Owner's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) Related Parties. Owner shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, a for-profit subsidiary or affiliate organization, an organization with overlapping boards of directors, or an organization for which an officer of the Owner is responsible for appointing memberships. Owner shall report this information to the City upon forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported to the City in the required Annual Report. ARTICLE XIII INDEMNIFICATION AND INSURANCE Owner shall indemnify and hold harmless the City from any and all claims, liabilities, losses, and causes of action which may arise out of an act, omission, negligence or misconduct on the part of Owner or any of its agents, servants, employees, contractors, patrons, guests, clients, or invitees. Owner 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 judgments which may issue thereon. Owner shall maintain during the term of this Agreement, the insurance specified below. (1) General Liability: $500,000 combined single limit for bodily injury and property damage, for 8 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: Owner shall deliver to the City the original policy of Builder's Risk and Comprehensive Fire and Hazard Insurance in completed value form with extended coverage in the amount of the full insurable value of the Project upon completion of construction, issued by a company satisfactory to the City. (6) Flood Insurance: 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)of8 feet above NGVD, Owner shall deliver to the City evidence satisfactory to the City that the premises are covered by flood insurance supplied by the Federal Insurance Administration to the maximum amount available, all as provided in the Flood Disaster Protection Act of 1973, as amended, together with appropriate endorsement. Owner agrees that the City shall have the right to take any action necessary to continue said insurance in full force. Owner shall submit to the City an ORIGINAL Certificate of Insurance for the above coverage with the City named as an additional insured, to the extent of its insurable interest on all policies required herein. All insurance coverage shall be approved by the City's Risk Manager prior to the release of any funds under this Agreement. Further, in the event evidence of such insurance is not forwarded to the City's Risk Manager within thirty (30) days after the execution of this Agreement, this Agreement shall become null and void, and the City shall have no obligation under the terms thereof. ARTICLE XIV REPORTS (1) Progress Reports. Owner agrees to submit monthly progress reports to the City, describing the status of the Project and achievement of objectives as provided herein and in the Scope of Services (Exhibit A) and Budget (Exhibit B), attached hereto. The progress reports shall be submitted no later than ten (10) days after the end of each month until such time as all funds are expended or, for rental projects, until the Project is fully occupied. It will be the sole responsibility of Owner to notify the City in writing, of any actions, law, or event, that will impede or hinder the Project as provided in this Agreement. After such notification, the City will take whatever actions it deems appropriate to ensure the success of the program. (2) Tenant and Rem Schedule Certification. a. Owner shall submit to the City for approval the proposed rents for the HOME units and, if applicable, the monthly allowances for utilities and services to be paid bythe tenant. The City shall approve submitted rents if such rents comply with applicable Federal standards, or if HUD has approved same. b. Owner shall provide the City with the initial tenant list, and any and all subsequent updates, amendments and modifications thereto, with documentation for all tenants in the HOME units confirming family size, income, financial classification, ethnicity, HOME rems charged and other information the City may require to fulfill its reporting requirements to HUD. This report will continue to be required throughout the Affordability Period hereunder beginning on the date of issuance of a Final Certification of Completion for the Project. The initial report shall be due within thirty (30) days of Project lease-up. c. Annually, Owner shall deliver to the City's Housing and Community Development Division, by October 31 st of each calendar year, its signed report in form and substance acceptable to the City, to include names of tenants, unit type, family size and income, rents charged, and occupancy/vacancy factor of each unit for the prior fiscal year (October 1 st through September 30th). The report will continued to be required for the full 15-year Affordability Period hereunder beginning on the date of issuance of a Final Certificate of Completion for the project. (3) Other reports as may be required by the City to demonstrate compliance with any of the terms of this Agreement. If the required reports described above are not submitted to the City or are not completed in the manner acceptable to the City, the City may withhold further payments until they are completed or may take any other action as the City may deem appropriate. ARTICLE XV AUDIT AND INSPECTIONS At anytime during normal business hours and as often as the City Administration and/or the Comptroller of the Currency 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 visit, the City determines that any payments made to Owner do not constitute an allowable expenditure, the City will have the right to deduct those amounts from their related invoices. Owner must maintain records necessary to document compliance with the provisions of this Agreement. 10 ARTICLE XVI COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS Owner agrees to comply with all applicable Federal regulations as they may apply to program administration. Additionally, Owner will comply with all State and local laws and ordinances hereto applicable. ARTICLE XVII ADDITIONAL CONDITIONS (a) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (b) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall rule. (c) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. ARTICLE XVIII ACCESS TO RECORDS Owner, agrees to allow access during normal business hours to all financial records to authorized Federal} State or City representatives and agrees to provide such assistance as may be necessary to facilitate financial audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Owner shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement and 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 Owner agrees that any news release or other type of publicity pertaining to the Project as stated herein must recognize the City as the recipient fimded by the United States Department of Housing and Urban Development, and that the Program is administered by the City's Housing and Community Development Division, which is the entity providing funds for the Project. 11 ARTICLE XXI DRUG-FREE WORKPLACE Owner agrees to administer in good faith, a policy to ensure that it complies with the Drug- Free Workplace Act requirements under 24 CFR Part 24, Subpart F, and will ensure that the workplace is free from the unlawful manufacture, distribution, dispensing, possession or use of drugs or alcohol. ARTICLE XXII NONDELEGABLE Owner agrees that the obligations undertaken pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. ARTICLE XXIII SUCCESSORS AND ASSIGNS Owner agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXIV INDEPENDENT CONTRACTOR Owner and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances 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 Owner without the prior written consent of the City thereto, which consent shall not be unreasonably withheld. It shall be deemed a default of this Agreement in the event that Owner does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Paragraph. In the event such consent is not obtained, in the manner prescribed herein, the City shall be entitled to declare a default, cancel this Agreement, and resort to its rights and remedies against the defaulting party. In the event the Provider transfers an interest of more than one (1%) percent ownership in its stock by pledge, sale, or otherwise; or if Owner makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if the Provider is involved in any bulk transfer of its business or assets, then in that event each 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 12 receivership for Owner, 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 Owner in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause, as prescribed in Article X herein. "Cause" shall include, but not be limited to, the following: (a) Owner's failure to (i) diligently pursue additional Project financing and to close on the acquisition of the Project within 60 days from the date of execution of this Agreement; or (ii) commence work within thirty (30) days from the date of issuance of the Notice to Proceed; or (iii) diligently pursue construction and timely complete the Project by securing a Final Certificate of Completion within twelve (12)months from the date of execution of this Agreement. Work shall be considered to have commenced and be in active progress when, in the sole opinion of the City, a full complement of workers and equipment is present at the Project site to diligently incorporate materials and equipment into the structure throughout the day on each full working day, weather permitting. (b) Owner's failure to comply with applicable building, fire, life safety, housing and zoning laws, rules, regulations and codes. (c) Owner's default on any of the terms and conditions of the note, mortgage, or other loan document executed by Owner in favor of a Lender. The affordability requirements and Affordability Period apply without regard to the term of any loan or mortgage or the transfer of ownership. They shall be imposed by deed restrictions, covenants running with the land, or other mechanisms approved by HUD, except that the affordability requirements and Affordability Period may terminate upon foreclosure or transfer in lieu of foreclosure. (d) Owner's failure to maintain the insurance required by the City and/or Lender. (e) Failure to comply and/or perform in accordance with any ofthe terms and conditions ofthis Agreement, or any Federal, State or local regulation. (f) Submitting any required report to the City which is late, incorrect, or incomplete in any material respect after notice and reasonable opportunity to cure, as set forth in subparagraph (h) hereof, has been given by the City to Owner. (g) Implementation of this Agreement, for any reason is rendered impossible or infeasible. (h) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by the City, including providing substantiating documentation when requested by the City. 13 (i) Any evidence of fraud, waste or mismanagement as determined by the City's monitoring of project(s) under this Agreement, or any violation of applicable HUD rules and regulations. (j) Owner's insolvency or bankruptcy. (k) An assignment or transfer of this Agreement or any interest therein which does not comply with the procedures set forth in Article XXV herein. (1) Claims of lien not satisfied or bonded-off, in accordance with Florida Statutes, within 60 days from the date of filing of any such lien. (m) Failure to comply and/or perform in accordance with the affordability requirements or Affordability Period, and/or an unauthorized transfer of title of its HOME projects. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to Owner, at the expiration of said thirty (30) day period (or such additional period of time, as permitted by the City, in its sole discretion, as required to cure such default, in the event Owner is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the City fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of this Agreement. In the event of a default for cause, the City may, at its option, avail itself of any and all remedies pursuant to 24 CFR Part 85.43, as amended from time to time, including suspension, in whole or in part, of Owner's grant award(s); recapture of the Funds, as set forth herein; and any other remedies that may be legally available. ARTICLE XXVII TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI above, Owner herein consents that the City may terminate this Agreement, in whole or in part, for convenience, as set forth in 24 CFR Part 85.44. ARTICLE 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 Owner agrees that it will maintain all records required pursuant to 24 CFR Part 92.508, in an 14 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. (1) Records shall be maintained for a period of five years (5) after the closeout of funds under this Agreement except as provided in subsections (2), (3) and (4) below. (2) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in paragraph (1) above, whichever is later; (3) Records regarding Project requirements that apply for the duration of the Affordability Period, as well as the written agreement and inspection and monitoring reports must be retained for five (5) years after the Affordability Period terminates; (4) 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 bythe City of this Agreement, so that its liability for any such breach never exceeds the sum of $522,493. Owner hereby expresses its willingness to enter into this Agreement with Owner's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $522,493. Accordingly, and notwithstanding any other term or condition of this Agreement, Owner hereby agrees that the City shall not be liable to Owner for damages in an amount in excess of $522,493, 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 terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. 15 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 Funds, 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 Owner the Funds will not be available and that this Agreement will thereby terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, Owner agrees that it will not look to, nor seek to hold liable, the City or any individual member 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 XXXIII ACCESSIBILITY LAWS COMPLIANCE Owner 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 -- Public buildings and conveyances financed with federal funds must be designed, constructed, or altered to provide accessibility to the physically handicapped. (b) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR Part 8 -- Prohibits discrimination in federally assisted programs on the basis of handicap and imposes requirements to ensure that "qualified individuals with handicaps" have access to programs and activities that receive federal funds. (c) Title VIII of the Civil Rights Act of 1968, As Amended the "Fair Housing Act" (42 U.S.C. 3601) and its implementing regulations at 24 CFR Part 100-115. Owner must complete and submit the City's Disability Non-Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated herein as Exhibit C. In the event Owner fails to execute the City's Affidavit, or is found to be in non-compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to Owner under the Agreement until compliance and/or cancellation, termination or suspension of the Agreement in whole or in part. In the event the City cancels or terminates the Agreement pursuant to this Article, Owner shall not be relieved of liability to the City for damages sustained by the City by virtue of Owner's breach of the Agreement. 16 ARTICLE XXXIV NOTICES All notices shall be sent to the parties at the following addresses: If to the City: City of Miami Beach 1700 Convention Center Drive, 3rd Floor Miami Beach, FL 33139 Attn: Housing and Community Development Division Director If to Owner: MBCDC: Westchester Apartments LLC. c/o Miami Beach Community Development Corporation (its sole member) Roberto Datorre, President 945 Pennsylvania Avenue Miami Beach, FL 33139 or to such address and to the attention of such other person as the City or Owner may from time to time designate by written notice to the other. [This page left intentionally blank] 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized official(s) on the day and date first above indicated. MBCDC: Westchester Apartments LLC. a Florida limited liability corporation By: Miami Beach Development Corporation, as its sole member Roberto DaTorre, President Secretary ATTEST: City Clerk Robert Parcher CITY OF MIAMI BEACH a Florida Municipal corporation Daviaq~nner Mayor t/', e- F:~IGhttSG-CD~EDWARD~HOME~WESTCHESTER APTSXJ. FaGAL DOCUMENTS~523K NOFA WESTCHESTER APARTMENTS_AGREEMENT. DOC APPROVED AS TO FORM & LANGUAGE & FOR F. XEC, UTIOIq 18 EXHIBIT A SCOPE OF SERVICES SCOPE OF SERVICES 1. Address of Project: Westchester Apartments 516 15th Street Miami Beach, F1 33139 2. Legal Description: Lot 2, Block 74, of Lincoln Sub, according to the Plat thereof, recorded in Plat Book 9, Page 69, of the public Records of Miami-Dade County, Florida. 3. Building and Site Characteristics Owner has entered into a Contract for Sale and Purchase, in the amount of $1,212,000, for a vacant apartment building, referred to as the Westchester Apartments, and located at 516 15t~ Street, Miami Beach. The three (3) story, thirty (30) unit building is to be reconfigured and rehabilitated to provide a minimum of twenty-four (24) units to be occupied by elderly persons qualified under the HOME Program. The building, constructed in 1926, has been designated as historic and is located two blocks south of Lincoln Road. The existing thirty (30) apartments consist of twelve (12) studio units, and twelve (12) one-bedroom units. According to the survey of the property, the total area of the building is approximately 10,420 square feet. Once the reconfiguration and rehabilitation of the building is completed, the area of each unit will exceed the minimum City requirement of 400 square feet. MBCDC is proposing to reconfigure the building and will provide a minimum of twenty-four (24) units. The actual number of units to be retained will be determined during the architect's design of the rehabilitation work. MBCDC has obtained site control and has had the facility inspected by a structural engineer. A Phase 1 Environment Review was conducted to determine possible petroleum product contamination, and the presence of asbestos or lead paint. As a requirement of the Agreement and HOME funding, the Owner will mitigate any hazardous conditions identified in the Phase 1 Report. The Owner has an appraisal. 4. Upon completion of the Project, all units will be HOME-assisted and carry restricted rent and tenant income restrictions for the duration of the 15-year Affordability Period. 5. Proposed Elements of Construction The proposed scope of work, based on a preliminary evaluation, includes the following: includes the following: reconstruction of the front porch with side wing walls and historic fagade renovation, repairs of spalled concrete, roof repairs and reconstruction of fire damaged roof area, new windows and doors, exterior paint, repair and replace deteriorated wood structural members, new non-load bearing construction with new mechanical, electrical, plumbing and fire sprinkler systems. In order to comply with ADA requirements, MBCDC is planning to request a waiver for the accessibility ramps because of insufficient space. However, MBCDC will comply with all other ADA requirements. The building is vacant and no tenants will be relocated. 6. The following procedures must be followed, prior to the commencement of work on the Project: (a) Each contractor and/or subcontractor must be found to be eligible to work on a federally funded project. The names submitted will be checked against the monthly listing "Consolidated List of Debarred, Suspended & Ineligible Contractors and Grantees" published by the Federal Government. (b) Since the Building is more than fifty (50) years old, Owner's Architect or Engineer (1) must obtain and submit to the City a letter indicating that the plans for the project have been reviewed by the State Historic Preservation Officer (SHPO) and that the proposed rehabilitation is acceptable to that office, and (2) must submit a copy of the 50 year re-certification for the building. (c) A set of final approved plans and specifications for the project approved by the City's Building Department must be submitted to the Housing and Community Development Division of the City's Neighborhood Services Department. (d) Building permits must be obtained as required by applicable City Ordinance. Also, any other necessary permits and applicable approvals from any other govemmental authorities must be obtained, if required. (e) A copy of the contract between Owner and a licensed General Contractor must be submitted to the City which includes commencement and completion dates, contract amount, scope of work, Federal Labor Standards Provisions (HUD Form 4010, if applicable), and applicable federal regulations and standards. (f) The General Contractor selected must submit evidence prior to the commencement of work, satisfactory to the City's Insurance Manager, of the following insurance coverage: 1) Liability insurance against claims arising out of accident or occurrence on the property, in a minimum amount of $1,000,000. The City of Miami Beach must be named as additional insured in the policy; and 2) Proof of worker's compensation coverage; and such other forms of insurance as the City's Risk Manager may reasonably require. (g) A revised cost breakdown, to include direct and indirect costs of the proposed work, based on the actual contract price. When the above requirements have been met, the Housing and Community Development Division and the Building Department will jointly issue a "Notice to Proceed" on the Project. If Owner or contractor does not fully comply, or if any work commences prior to the issuance of the Notice to Proceed, then such work may, at the discretion of the City, constitute a default under this Agreement. Exception: Subject to the prior approval of the Housing and Community Development Division and the Building Department, emergency repairs can be undertaken on the Project. 7. Owner's General Contractor shall be responsible for compliance with all pollution and asbestos control standards of the concerned governmental agencies. It shall be the Contractor's responsibility to obtain required inspections from these agencies. 8. Federal regulations require that all tenants in housing rehabilitated with federal funds, be provided with information on the following: that the property may contain lead-based paint; of the hazards, symptoms and treatment for ingestion of lead-based paint; of the precautions to be taken; of the availability of blood level screening for children under seven years of age; and that in the event lead-based paint is found in the property, appropriate abatement procedures must be undertaken by Owner. Copies of a brochure will be provided to the Owner by the City. This information must be provided by Owner to each tenant, and Owner must retain evidence of having provided this notification to the tenant in a file for the life of this Agreement. 9. After the property has been rehabilitated, it must conform to the applicable codes, ordinances and statutes of the City and of Miami-Dade County, including, but not limited to, the South Florida Building Code, the Zoning Ordinance, and the Property Maintenance Standards. 10. Owner agrees that it will develop an affirmative marketing plan, with concurrence from the City, that will comply with the City's adopted affirmative marketing procedures and requirements for projects containing five (5) or more HOME-assisted housing units. Owner shall implement an affirmative marketing program that provides information to, and attracts eligible persons in the housing market area to the available housing receiving assistance from HOME funds, without regard to race, color, national origin, religion, sex, sexual orientation, handicap, marital status, familial status, or age. The affirmative marketing requirements and procedures adopted by Owner shall include, but not necessarily be limited to, the following: a. Methods to promote greater choice of housing opportunities; b. Practices for marketing vacant units that will affirmatively further fair housing (e.g., use of commercial media, use of community contacts, use of the Equal Housing Opportunity logotype or slogan, and display of fair housing poster); c. Special outreach efforts to inform and solicit applications from persons in the housing market area who are not likely to apply for the housing without special outreach and advertising efforts (e.g., use of community organizations including, but not limited to: places of worship, employment centers, community centers, fair housing groups, housing counseling agencies, community development corporations, and the Housing Authority of the City of Miami Beach). The City shall provide a list of potential outreach sources to Owner; d. Maintenance of records describing actions taken to affirmatively market units and records to assess the results of these actions, including newspaper clippings of all vacant units advertised, copies of brochures, pamphlets, and articles used in advertising units, lists of community organizations used in disseminating information, records of referrals and the results of these referrals, and documentation of any other special outreach activities conducted. e. A certification that states that the Owner agrees to adhere to any corrective actions the City requires if affirmative marketing requirements are not met. 11. Project Development Schedule Closing Date Commence Construction Complete Construction Lease-up August 2003 March 2005 November 2006 January 2007 EXHIBIT B BUDGET SOURCES AND USES OF FUNDS WESTCItESTER APARTMENTS 516 15th STREET ESTIMATED SOURCES OF FUNDS CITY OF MIAMI BEACH (CHDO SET ASIDE FY 2001 & 2002) CITY OF MIAMI BEACH FY 2003 HOUSING OPPORTUNITIES WITH PEOPLE WITH AIDS (HOWPA) CITY OF MIAMI BEACH FY 2005 NOFA MIAMI-DADE COUNTY SURTAX MIAMI-DADE HOMELESS TRUST (Applied for) BANK FINANCING USES OF FUNDS ACQUISITION OF PROPERTY REHABILITATION PRE-DEVELOPMENT COSTS DEVELOPER' S FEE CONTINGENCY $1,007,473 298,218 296,491 522,493 800,000 750,000 367,117 $4,041,792 $1,200,000 2,105,400 305,713 190,000 240,579 $4,041,792 EXHIBIT C DISABILITY DISCRIMINATION AFFIDAVIT