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HOME Program Agreement ;J.OO 7- ?- ~'i PI G 1 G - 3//7/0 7 HOME PROGRAM AGREEMENT THIS AGREEMENT, entered into this J..!/!!day of ~ ,2007, 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 MERIDIAN PLACE LLC., a Florida limited liability company, with offices located at 945 Pennsylvania Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC). WITNESSETH: WHEREAS, on February 18, 1992, the City was designated by the U.S. Department of Housing and Urban Development (HUD) as a Participating Jurisdiction to receive funds through the HOME Investment Partnerships (HOME) Program, as set forth in 24 CFR Part 92; and WHEREAS, the City has established a HOME Investment Partnerships Program (HOME Program) under the rules of the U.S. Department of Housing and Urban Development (U.S. HUD), which provides financial assistance for the purpose of providing affordable housing within the City; and WHEREAS, on March 14, 2007, the City Commission approved Resolution No. 2007- 26481, awarding Fiscal Year (FY) 2002/03 HOME Program funds, in the amount of $309,469 to Miami Beach Community Development Corporation, Inc., for the acquisition and/or rehabilitation of the Meridian Apartments, located at 530 Meridian A venue, Miami Beach. WHEREAS, MBCDC Meridian Place LLC. (MBCDC) is the owner of the Property, as successor in interest to Miami Beach Community Development Corporation, Inc. 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 same may be amended, which shall also be referred to herein as the "HOME Program Final Rule." (b) HUD: United States Department of Housing & Urban Development or any successor agency. (c) Funds: HOME Program funds that are the subject of this Agreement. The definition of the Funds, as used herein, shall also include the allocation of any additional funds that may be provided by the City in the future as a result of a duly approved and executed amendment or modification to this Agreement. 1 (d) Terms defined in the HOME Investment Partnerships Program Final Rule, 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. (f) Project: One or more buildings on a single site or multiple sites that are under common ownership, management, and financing and are to be assisted with HOME funds as a single undertaking. For the purposes of this Agreement, the "Project" referenced herein shall refer to the acquisition and rehabilitation of the Meridian Place Apartments, a residential rental apartment building, located at 530 Meridian Avenue, Miami Beach, Florida. ARTICLE II ALLOCA TION OF HOME FUNDS In consideration of the performance by MBCDC of its role and responsibilities set forth in this Agreement, the City agrees to provide a grant of HOME Program funds to MBCDC, in the amount of $309,469, from FY 2002/03 HOME Program funds (also referred to as the Funds). The Funds will be utilized by MBCDC for the acquisition and/or rehabilitation of the Project, which will provide 34 affordable rental units for income qualified elderly persons (the HOME units). MBCDC will maintain required HOME Program rent and occupancy limitations for a minimum period of 15 years (the Affordability Period). The Affordability Period shall commence with the issuance of the final approved Certificate of Completion by the City's Building Department following the planned rehabilitation of the Project, which must occur within twelve (12) months from the execution of this Agreement. ARTICLE III PROCEEDS FROM HOME INVESTMENT In accordance with the 24 CFRPart 92.300 (a)(2), MBCDC may retain the proceeds from the investment of its Community Housing Development Organization (CHDO) funds from this Project, for use in other housing activities which benefit low-income families. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE HOME PROGRAM MBCDC expressly agrees to the following terms and conditions in conformity with the HOME Program Final Rule: (a) Repayment of Funds. The Funds (which definition shall include the allocation of any additional funds that may be provided by the City in the future as a result of a duly approved and 2 executed amendment or modification to this Agreement) shall be repaid in their entirety if the HOME units do not meet the affordability requirements for the required Affordability Period in accordance with the terms of this Agreement and the HOME Program Final Rule. Any violation of these requirements may, at the City's option, result in the entire amount of the Funds, as indicated in Article II, or as subsequently amended or modified, being immediately due and payable by MBCDC to the City, and same shall also be considered and treated as an event of default resulting in the City's termination for cause of the Agreement, pursuant to Article XXVI herein. Concurrent with its execution of this Agreement, MBCDC shall execute a Mortgage and Note in the format provided by the City, incorporating therein such terms including, but not limited to, the affordability requirements and the Affordability Period, which shall be recorded in the Official Records of Miami-Dade County Florida. (b) Rent Limitation. The HOME 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 MBCDC. (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 MBCDC prior to initial occupancy. MBCDC must re-examine and document the income of each tenant living in the HOME units annually. The maximum monthly rent must be recalculated by MBCDC and reviewed and approved by the City annually. Any increase in rents for the HOME units is subject to the provisions of outstanding leases and, in any event, MBCDC must provide the tenant with not less than thirty (30) days written notice before implementing any rent increase. (d) MBCDC shall comply with all applicable federal regulations as they may apply to restrictions and limitations regarding real property under MBCDC's control acquired or improved in whole or in part with the 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. MBCDC shall maintain written documentation that conclusively demonstrates that the Project 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 80 percent of the median income for the area) as required. (g) Records: MBCDC shall maintain all records sufficient to meet the requirements of24 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. Housing that is assisted with HOME funds, must meet all applicable local codes, rehabilitation standards, ordinances and zoning ordinances at the time of 3 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. MBCDC shall obtain a Phase I, Environmental Assessment for the Project, and agree to mitigate any hazardous conditions identified therein. (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, MBCDC 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. MBCDC will submit its written procedures that implement these requirements for review and approval by the City. (1) Tenant and Participant Protection. MBCDC agrees that the lease to be executed with the tenants of rental housing will be in accordance with 24 CFR Part 92.253. Furthermore, MBCDC shall 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. MBCDC, whose sole owner and member is Miami Beach Community Development Corporation, Inc., the City's designated Community Housing Development Organization (CHDO), agrees that it will function as the owner of the Project and that it shall have effective management control. (n) Change in Status. MBCDC and/or Miami Beach Community Development Corporation, Inc., agree to advise the City in writing within thirty (30) days of any organizational, operational or legal status changes made by either Miami Beach Community Development Corporation, Inc., or MBCDC that affect documents that were submitted by Miami Beach Community Development Corporation, Inc., to obtain CHDO status. ARTICLE V ELIGIBLE COSTS MBCDC agrees that eligible costs for the Project under this Agreement are limited to those eligible costs as outlined in 24 CFR Part 92.206, as same may be amended. ARTICLE VI DISBURSEMENT OF FUNDS (1) The Funds shall be used by MBCDC solely for acquisition and/or rehabilitation of the Project as provided in this Agreement. (2) Any payment or disbursement of Funds, or other payments or monies due under the terms of this Agreement, may be withheld, at the City's sole discretion, pending the receipt and approval by 4 the City of all reports and documents which MBCDC is required to submit to the City pursuant to the terms of this Agreement or any amendments thereto. (3) No payments or disbursements will be made without evidence of appropriate insurance required by this Agreement. Such evidence must be on file with the City. (4) MBCDC 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 request must be limited to the amount needed. ARTICLE VII SUBCONTRACTS (a) IfMBCDC subcontracts, a copy of the executed subcontract must be forwarded to the City within ten (10) days after execution. (b) MBCDC shall include a statement in all subcontracts that it executes, or causes to be executed, for or on behalf ofthe Project that the subcontractor shall hold the City harmless against all claims of whatever nature arising out of the subcontractor's performance of work under its subcontract agreement. ARTICLE VIII ADDITIONAL CONDITIONS TO MBCDC'S ALLOCATIONIUSE OF THE FUNDS (a) As a further condition of to MBCDC's use of the Funds, MBCDC agrees to comply with the HOME Program Final Rule, 24 CFR Part 92, and any amendments or notices issued pursuant thereto. (b) MBCDC agrees to comply with the requirements of Executive Orders 11625 and 12432 concerning Minority Business Enterprise and 1213 8 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) MBCDC 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 MBCDC 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) MBCDC agrees to comply with all of the following federal laws, executive orders, and regulations pertaining to fair housing and equal opportunity. (1) Title VI ofthe 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. 5 (2) Title VIII of the Civil Rights Act of 1968 ("Fair Housing Act"), As Amended (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, As amended (Executive Order 11246), 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) Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701 u) -- Requires that, to the greatest extent feasible, opportunities for training and employment arising from HOME 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) Lead Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et) and its implementing regulations at 24 CFR 35. (g) Federal Labor Standards provisions, as described in HUD Handbook 1344-1 (Federal Labor Standards Compliance in Housing and Community Development Programs). (h) MBCDC agrees to comply with the requirements of24 CFR part 24 regarding debarment and suspension. (i) MBCDC shall comply with the requirements of that certain Mortgage, Note and Restrictive Covenant by and between the Miami Beach Redevelopment Agency (RDA) and MBCDC Meridian Place LLC., pursuant to an approval for funding, in the amount of $1 ,500,000 and 00/100 dollars, approved by the RDA for acquisition or rehabilitation of the Project, pursuant to RDA Resolution Number 538-2006 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 Affordability Period. 6 ARTICLE X TERMINATION The City and MBCDC 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 of24 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 portiones) 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 MBCDC. ARTICLE XII CONFLICT OF INTEREST (a) MBCDC 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. The City in accordance with 24 CFR Part 92.356(f)(2) may grant exceptions. (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 that shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, a for-profit subsidiary or affiliate organization, an organization with overlapping boards of directors, or an organization for which an officer of the MBCDC is responsible for appointing memberships. MBCDC shall report this information to the City upon forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported to the City in the required Annual Report. 7 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 ofthe 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 ofthe 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, 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. 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 unless a written extension of this thirty (30) day requirement is secured from the Risk Manager. 8 ARTICLE XIV REPORTS (1) Progress Reports. MBCDC 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 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 responsibility of MBCDC to notify the City in writing, of any actions, law, or event, that will impede or hinder the completion of the Project as provided in this Agreement. After such notification, the City will take whatever actions it deems appropriate, in its sole discretion, to ensure the success of the Project. (2) Tenant and Rent Schedule Certification. a. MBCDC 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 by the tenant. The City shall approve submitted rents if such rents comply with applicable Federal standards, or ifHUD has approved same. b. MBCDC 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 rents charged and other information the City may require to fulfill its reporting requirements to HUD. This report will continue to be required for the duration of the Affordability Period. The initial report shall be due within thirty (30) days of Project lease-up. c. Annually, MBCDC shall deliver to the City's Housing 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 of Affordability Period. (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 any time during normal business hours and as often as the City Administration and/or the 9 Comptroller of the Currency ofthe 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 MBCDC do not constitute an allowable expenditure, the City will have the right to deduct those amounts from their related invoices. MBCDC must maintain records necessary to document compliance with the provisions of this Agreement. ARTICLE XVI COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS MBCDC agrees to comply with all applicable Federal regulations as they may apply to the Project. Additionally, MBCDC 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 MBCDC, agrees to allow access during normal business hours to all financial records to authorized Federal, State or City representatives and agrees to provide such assistance as may be necessary to facilitate financial audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and financial standards. MBCDC shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement 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. 10 ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release or other type of publicity pertaining to the Project recognize the City as the recipient funded by the United States Department of Housing and Urban Development, and that the Project is administered by the City's Neighborhood Services Department, which is the entity providing funds for the Project. ARTICLE XXI DRUG-FREE WORKPLACE MBCDC agrees to administer in good faith, a policy to ensure that it complies with the Drug- Free Workplace Act requirements under 24 CFR Part 24, Subpart F, and will ensure that the workplace is free from the unlawful manufacture, distribution, dispensing, possession or use of drugs or alcohol. ARTICLE XXII NONDELEGABLE MBCDC agrees that the obligations undertaken pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the City shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. ARTICLE XXIII SUCCESSORS AND ASSIGNS MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXIV INDEPENDENT CONTRACTOR MBCDC and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further he/she shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXV ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent ofthe City thereto, which consent shall not be unreasonably withheld. It shall be deemed a default of this Agreement in the event that MBCDC does not strictly comply with the procedures 11 established herein for obtaining City consent to assignment or transfer as defined by this Article. 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 that MBCDC transfers an interest of more than one (1 %) percent ownership in its stock by pledge, sale, or otherwise; or if MBCDC makes an assignment for the benefit of its creditors, or uses this Agreement as security or collateral for any loan; or if MBCDC is involved in any bulk transfer of its business or assets, then, in that event, each of the foregoing actions shall also be deemed an assignment of this Agreement and shall require the City's prior written consent. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receivership for MBCDC, shall also be deemed an assignment of this Agreement and will require the prior written consent of the City thereto. ARTICLE XXVI TERMINATION FOR CAUSE The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause, as prescribed in Article X herein. "Cause" shall include, but not be limited to, the following: (a) MBCDC's failure to (i) commence work within thirty (30) days from the date of issuance of the Notice to Proceed; or (ii) 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 site to diligently incorporate materials and equipment into the structure throughout the day on each full working day, weather permitting. (b) MBCDC's failure to comply with applicable building, fire, life safety, housing and zoning laws, rules, regulations and codes. (c) MBCDC's default on any of the terms and conditions of the note, mortgage, or other loan document executed by MBCDC in favor of a lender including, without limitation, that certain Mortgage and Note, and Restrictive Covenant executed between the Miami Beach Redevelopment Agency (RDA) and MBCDC Meridian Place LLC. (d) MBCDC's failure to maintain the insurance required by the City and/or any lenders. (e) 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. (f) Submitting any required report to the City that is late, incorrect, or incomplete in any material respect after notice and reasonable opportunity to cure, as set forth in subparagraph (h) hereof, has 12 been given by the City to MBCDC. (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. (i) Any evidence of fraud, waste or mismanagement as determined by the City's monitoring of the Project under this Agreement, or any violation of applicable HUD rules and regulations. (j) MBCDC'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 oflien 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 and/or the Affordability Period, and/or an unauthorized transfer oftitle of the Project. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, at the expiration of said thirty (30) day period (or such additional period of time, as permitted by the City, in its sole discretion, as required to cure such default, in the event MBCDC is diligently pursuing curative efforts) this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the 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, at its option, avail itself of any and all remedies pursuant to 24 CFR Part 85.43, as amended from time to time, including suspension, in whole or in part, of MBCDC's grant award(s); recapture of the Funds, and any other remedies that may be available at law or in equity. ARTICLE XXVII TERMINATION FOR CONVENIENCE Notwithstanding Article XXVI above, MBCDC herein consents that the City may terminate this Agreement, in whole or in part, for convenience, as set forth in 24 CFR Part 85.44. In the event of a termination for cause, the City may avail itself of any and all remedies as set forth in Article XXVI above. ARTICLE XXVIII ADDITIONAL REMEDIES In the event of a default and termination, the City shall be entitled to bring any and all legal 13 and/or equitable actions which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counterclaims against the City in any such action. ARTICLE XXIX MAINTENANCE AND RETENTION OF RECORDS MBCDC agrees that it will maintain all records required pursuant to 24 CFR Part 92.508, in an orderly fashion in a readily accessible, permanent and 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 after the closeout of Funds under this Agreement except as provided herein (2), (3) and (4). (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), 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 years after the Affordability Period terminates; (4) Records covering displacements and acquisition must be retained for at least five 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, if entitled to same in accordance with 24 CFR Part 92.353. ARTICLE XXX LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of$1 0,000. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $10,000. 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 $1 0,000, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or 14 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 iflegal 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. BY ENTERING INTO THIS AGREEMENT, BOTH PARTIES EXPRESSL Y WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ARTICLE XXXII 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 ofthe 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 MBCDC 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, 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 XXXIII ACCESSIBILITY LAWS COMPLIANCE MBCDC agrees to adhere to and be governed by the following accessibility requirements: (a) Architectural Barriers Act of 1968, As Amended (42 U.S.C. 4151) and its implementing regulations at 35 CFR Part 107 -- 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. 15 MBCDC must complete and submit the City's Disability Non-Discrimination Affidavit (Affidavit), a copy of which is attached hereto and incorporated herein as Exhibit C. In the event MBCDC fails to execute the City's Affidavit, or is found to be in non-compliance with the provisions of the Affidavit, the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to MBCDC under the Agreement until compliance and/or cancellation, termination or suspension of the Agreement in whole or in part. In the event the City cancels or terminates the Agreement pursuant to this Article, MBCDC shall not be relieved of liability to the City for damages sustained by the City by virtue of MBCDC's breach of the Agreement. ARTICLE XXXIV NOTICES All notices shall be sent to the parties at the following addresses: If to the City: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33 139 Attn: Thomas Urriola, Interim Housing and Community Development Division Director Attn: Miami Beach Redevelopment Agency If to MBCDC: Roberto Datorre MBCDC Meridian Place LLC. 945 Pennsylvania Avenue Miami Beach, FL 33139 or to such address and to the attention of such other person as the City or MBCDC may from time to time designate by written notice to the other. (Remainder of this page left intentionally blank) 16 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 MERIDIAN PLACE LLC., a Florida limited liability company By: Miami Beach Development Corporation, Inc., as its sole member ATTEST: ~~dent cL~ Se~etary / '\20.,ge1\.... -r:o ~-^ \ C? I\..~ Print Name and Title S?4C.&'.~,.."t' City Clerk Robert Parcher Mayor David Dermer ATTEST: WuJ fM~ F:\NEIG\HSG-CD\EDW ARD\HOME\MERIDIAN PLACE\MBCDC 2007\MERIDIAN PL AGREEMENT DOC APPROVED AS TO FORM & LANGUAGE & FO ECUTION ~ f,~ \01 Date 17 EXHIBIT A SCOPE OF SERVICES 1. Address of Property: Meridian Place Apartments 530 Meridian Avenue Miami Beach, FI 33139 2. Legal Description: Lot 4, Block 74, Ocean Beach Addition No. Three, as recorded in Plat Book 2, Page 81, of the Public Records of Miami-Dade County, Florida. 3. Building and Site Characteristics The Meridian Place, located at 530 Meridian Avenue in Miami Beach, is a three-story building located one-half block north of Fifth Street. The building has a total area of 16,525 square feet. The Property consists of a 76-unit building that will be reconfigured into 34 units. The total project cost, including the purchase price of$3,800,000, is $6,360,000. MBCDC estimates construction costs of $2,560,000. The cost per unit is $187,059; the cost per square foot is $385. MBCDC has retained funding previously awarded to Carrfour as follows: $1,000,000 State Demonstration Loan; $1,379,395 Miami-Dade County Surtax; $395,605 Miami-Dade County HOME Program; and $1,500,000 from the City of Miami Beach Redevelopment Agency. Pending is a bank loan for $400,000, and $1,375,531 in funding applications with the Special Housing Assistance Development from the State of Florida. MBCDC closed on the Property on February 6, 2007. 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, will meet all applicable local codes, rehabilitation standards, ordinances and zoning ordinances in addition to HUD Minimum Property Standards at the time of Project completion. 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. 18 (b) Since the building is more than 50 years old, MBCDC'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 Division of the City's Community/Economic Development Department. (d) Building permits must be obtained as required by applicable City laws. Also, any other necessary permits and applicable approvals from any other governmental authorities must be obtained, if required. (e) A copy of the contract between MBCDC 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 ofthe proposed work, based on the actual contract price. When the above requirements have been met, the City's Neighborhood Services Department and the Building Department will jointly issue a "Notice to Proceed" on the Project. If MBCDC or its contractor(s) not fully comply, or if any work commences prior to the issuance of the Notice to Proceed, then such work may, at the discretion ofthe City, constitute a default under this Agreement. Exception: Subject to the prior approval of the Community/Economic Development Department and the Building Department, emergency repairs can be undertaken on the Project. 7. MBCDC's General Contractor shall be responsible for compliance with all pollution and asbestos control standards ofthe 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 oflead-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, 19 appropriate abatement procedures must be undertaken by MBCDC. Copies of a brochure will be provided to the MBCDC by the City. This information must be provided by MBCDC to each tenant, and MBCDC 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. MBCDC 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 5 or more HOME-assisted housing units. MBCDC 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 MBCDC 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 MBCDC; 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 MBCDC agrees to adhere to any corrective actions the City requires if affirmative marketing requirements are not met. 20 EXHIBIT B BUDGET PROPOSED SOURCES AND USES: SOURCES CMB HOME 2002/03 $309,469.00 Miami-Dade County Surtax $1,379,395.00 Miami Dade County HOME $395,605.00 State of Florida Demonstration Loan $1,000,000.00 City of Miami Beach RDA $1,500,000.00 Bank Financing $400,000.00 State/Miami-Dade County $975,531.00 State of Florida $400,000.00 Total $6,360,000.00 USES Purchase Price 3,800,000.00 Rehabilitation Costs 2,560,000.00 Total 6,360,000.00 21 EXHIBIT C DISABILITY DISCRIMINATION AFFIDAVIT 22