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2008-26887 ResoRESOLUTION NUMBER 2008-26887 A RESOLUTION OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, IN THE AMOUNT OF $836,209 FROM FISCAL YEAR 2006/2007, TO CONTINUE AN AFFORDABLE HOUSING REHABILITATION COMPONENT FOR THE SCATTERED-SITE HOME OWNERSHIP PROGRAM, PROVIDING REHABILITATION, DOWN PAYMENT ASSISTANCE, AND HOME OWNERSHIP COUNSELING FOR UNITS PURCHASED BY ELIGIBLE HOME BUYERS, AND FOR THE REHABILITATION OF VACANT MULTI-FAMILY BUILDINGS TO BE CONVERTED INTO RENTAL UNITS FOR INCOME ELIGIBLE PARTICIPANTS UNDER THE RULES OF THE SHIP PROGRAM AND THE CITY'S LOCAL HOUSING ASSISTANCE PLAN WHEREAS, the State of Florida enacted the William E. Sadowski Affordable Housing Act (the Act) on July 7, 1992, allocating a portion of new and existing documentary stamp taxes on deeds to local governments to stimulate the production of housing through the State Housing Initiatives Partnership (SHIP) Program; and WHEREAS, the Act requires that in order to qualify for funding, local governments develop a Local Housing Assistance Plan outlining how the funds will be used; and WHEREAS, on April 14, 2004, the Mayor and City Commission adopted Resolution No. 2004-25537, approving a Local Housing Assistance Plan for Fiscal Years 2004/2005, 2005/2006, and 2006/2007, pursuant to the requirements of the Act and the SHIP Rule issued by the Florida Housing Finance Corporation; and WHEREAS, the City issued a Notice of Funding Availability (NOFA) on September 27, 2007, pursuant to the City's approved Local Housing Assistance Plan; and WHEREAS, the City received only one proposal, from Miami Beach Community Development Corporation (MBCDC), proposing to utilize the SHIP funds to continue the rehabilitation component of its Scattered-Site Home Ownership Program; and WHEREAS, the Administration now requests that the attached SHIP Program Agreement be approved by the Mayor and City Commission and executed by the Mayor and City Clerk; and WHEREAS, through this Agreement, MBCDC will utilize the SHIP Funding Year 2006/2007 funds, in the amount of $836,209, exclusively for rehabilitation, down payment assistance, closing cost assistance, and home ownership counseling, for its scattered-site home ownership program, and for the rehabilitation of vacant multi-family buildings to be converted into rental units for income eligible participants. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute the attached State Housing Initiatives Partnership (SHIP) Program Agreement between the City and MBCDC, which provides SHIP Program funds, in the amount of $836,209 from Fiscal Year 2006/2007 to continue a rehabilitation component for the Affordable Housing, Scattered-Site Home Ownership Program, providing rehabilitation, down payment assistance, closing cost assistance and home ownership counseling for units purchased by eligible home buyers, and for the rehabilitation of vacant multi-family buildings to be converted into rental units for income eligible participants under the rules of the SHIP Program and the City's Local Housing Assistance Plan. Passed and adopted this loth day of September , 2008. ATTEST: CITY CLERK Robert Parcher AYO Matti Herrera Bower T:\AGENDA\2008\September 10\Regular\SHIP-MBCDC Agreement Reso.doc APPROVED AS TO FORM & LANGUAGE & FOR E,Y~CUTION 9308 COMMISSION ITEM SUMMARY Condensed Title: A resolution authorizing a SHIP Program Agreement with MBCDC to provide $836,209 pursuant to the Notice of Funding Availability for FY 2006/2007 to continue an Affordable Housing component of the Scattered-Site Home Ownership Program and Rental Development under the rules of the SHIP Program and the City's Local Housing Assistance Plan. Key Intended Outcome Supported: Increase access to affordable housing Supporting Data (Surveys, Environmental Scan, etc.): Based on the 2007 Customer Satisfaction Survey, affordable housing was a concern for 82% of those surveyed. Issue: Shall the City provide $836,209 in SHIP Program funds to assist eligible home buyers with rehabilitation, down-payment assistance, closing costs, home ownership counseling and rental development in accordance with the SHIP Program requirements? Item Summa /Kecommendatlon: On September 27, 2007, the City issued a SHIP Program Notice of Funding Availability (NOFA) for the FY 2006/2007 allocation. MBCDC responded to the NOFA, proposing to utilize the SHIP funds to continue the rehabilitation component of its successful Affordable Housing Scattered-Site Home Ownership Program and Rental Development program. The funds will also be used to provide down- paymentassistance and closing cost assistance to a minimum of 20 units, in order to provide home ownership opportunities to eligible homebuyers, and rental units to income-eligible persons. The Affordable Housing Scattered-Site Home Ownership Program also utilizes funds leveraged by MBCDC from other County and Federal sources. The Administration proposes to enter into a SHIP Program agreement with MBCDC. Advisory Board Recommendation: On December 20, 2007 the Loan Review Committee recommended that MBCDC be allocated $836,209 SHIP Program funds from FY 2006/07. On August 21, 2008, the Finance & Citywide Projects Committee discussed and recommended that this item be placed on the City Commission's agenda for the September 10, 2008 meeting. Financial Information: Source of Amount Account Approved Funds: ~ $836,209 152-5716.000349 2 3 4 OBPI Total Financial Impact Summary: City Clerk's Office Legislative Tracking: Anna Parekh Sian-Offs: ~ Department Director ~ ~I?-ssir~tant City Manager ~ City Manager ~ T:WGENDA12008\September 10\Regular\SHIP-MBCDC Agreement Summary.doc ~, /~ I /\ ~ /~ ~ ~ C~~ („~ AGENDA DATE ' O-~ City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: September 10, 2008 SUBJECT: A RESOLUTION OF THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE THE ATTACHED STATE HOUSING INITIATIVES PARTNERSHIP (SHIP) PROGRAM AGREEMENT BETWEEN THE CITY AND MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION (MBCDC), WHICH PROVIDES SHIP PROGRAM FUNDS IN THE AMOUNT OF $836,209 FROM FISCAL YEAR 2006/2007 TO CONTINUE AN AFFORDABLE HOUSING REHABILITATION COMPONENT FOR THE SCATTERED-SITE HOME OWNERSHIP PROGRAM WHICH PROVIDES REHABILITATION, DOWN PAYMENT ASSISTANCE, HOME OWNERSHIP COUNSELING FOR UNITS PURCHASED BY ELIGIBLE HOME BUYERS, AND FOR THE REHABILITATION OF VACANT MULTI-FAMILY BUILDINGS TO BE CONVERTED INTO RENTAL UNITS FOR INCOME ELIGIBLE PARTICIPANTS UNDER THE RULES OF THE SHIP PROGRAM AND THE CITY'S LOCAL HOUSING ASSISTANCE PLAN. ADMINISTRATION RECOMMENDATION Adopt the Resolution. ANALYSIS The State Housing Initiatives Partnership (SHIP) Program, administered through the Florida Housing Finance Corporation, was established by the 1992 William E. Sadowski Affordable Housing Act to stimulate the production of housing statewide. SHIP Program funds are derived from documentary stamp levies on real estate transactions. Annually, the Florida Housing Finance Corporation allocates SHIP Program funds among participating jurisdictions on a formula basis. The City has participated in the SHIP Program since fiscal year 1995/96. The City received a total of $894,645 of SHIP Program funds for fiscal year 2006/07, which includes an allocation of $547,830, plus $73,074 in program income and an additional $273,741 in recaptured funds. According to SHIP Program regulations and the City's Local Housing Assistance Plan, ten (10) percent of each fiscal year allocation and five (5) percent of program income can be used for administrative costs associated with the Program, for a total of $58,436 for FY 2006/2007. Page 2 of 2 SHIP -MBCDC Agreement The remaining balance of funds from fiscal year 2006/07, $836,209, was advertised as Notice of Funding Availability (NOFA) on September 27, 2007 in The Miami Herald. The NOFA sought an experienced housing provider to utilize SHIP Program funds for rehabilitation of scattered-site dwelling units to provide home ownership opportunities for eligible home buyers. Responses to the NOFA were due on October 26, 2007. While available SHIP Program funds were $836,209, the NOFA documents inadvertently listed $799,673 as available. The City received only one timely proposal, from the Miami Beach Community Development Corporation (MBCDC), in the amount of $799,763. However, the actual available amount is $836,209, as advertised. MBCDC proposes to utilize the total available $836,209 SHIP funds to continue the rehabilitation component of its successful Scattered-Site Home Ownership Program, and for the Rental Housing Development Program. In accordance with the City's Local Housing Assistance Plan, the SHIP Program funds will be used to provide rehabilitation, down payment assistance, closing cost assistance, or development of rental units. MBCDC's proposal in the amount of $799,673 provided for assistance to 19 units. This funding will provide home ownership opportunities toincome-eligible home buyers with annual earnings at or below 120 percent of area median income, and rental housing for income-eligible persons with annual earnings at or below 80 percent of area median income. In addition, MBCDC will provide home ownership counseling to a minimum of 60 income-eligible participants. Allocation of this funding was recommended by the Loan Review Committee on December 20, 2007. At their July 16, 2008, the City Commission referred this item to the Finance and Citywide Projects Committee for discussion. The Finance and Citywide Projects Committee discussed this allocation on August 21, 2008, and forwarded the item to the City Commission. CONCLUSION The Administration recommends that the Mayor and City Commission of the City of Miami Beach, Florida, adopt a resolution authorizing the Mayor and City Clerk to execute the attached State Housing Initiatives Partnership (SHIP) Program Agreement between the City and Miami Beach Community Development Corporation, which provides SHIP Program funds in the amount of $836,209 from fiscal year 2006/2007 for the scattered-site home ownership program for income-eligible home buyers, and rental housing for income eligible persons in accordance with the SHIP Program Rule and the City's Local Housing Assistance Plan. JMG/HF/AP/AA T:WGENDA\2008\September 10\Regular\SHIP-MBCDC Agreement Memo.doc SHIP AGREEMENT SHIP Fiscal Year 2006-2007 THIS AGREEMENT, entered into this _ day of , 2008, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, (hereinafter referred to as the City), and the MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION, anot-for-profit Florida corporation, with its principal office located at 945 Pennsylvania Avenue, Miami Beach, Florida (hereinafter referred to as MBCDC). WITNESSETH: WHEREAS, the City has determined the necessity for providing affordable housing in Miami Beach through its Consolidated Plan, which was adopted by Resolution No. 2004-25641, on July 28, 2004; and WHEREAS, the City has been designated by the Florida Housing Finance Administration as an eligible municipality for the receipt of funds as provided under the State Housing Initiatives Partnership (SHIP) Program, pursuant to Chapter 67-37 of the Florida Administrative Code (F.A.C.); and WHEREAS, the City utilizes SHIP funds, provided by the Florida Housing Finance Corporation under the terms of the SHIP Program, in order to expand the supply of decent, safe, sanitary and affordable housing within the City, for income-eligible persons, by making available funds to rehabilitate dwelling units; and WHEREAS, MBCDC has operated a "Scattered-Site" home-ownership Program since 1990, assisting low- and moderate-income individuals and families in the purchase of condominiums at various locations throughout Miami Beach, by providing down payment assistance and other forms of aid to the prospective home buyers. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS Terms shall be as defined in the State Housing Incentives Partnership (SHIP) Program, 67-37 F.A.C., and any amendments thereto (also referred as the SHIP Program Rule). Any term defined in the SHIP Program Rule, not otherwise defined in this Agreement, shall have the meaning set forth in said Rule. ARTICLE II BUDGET AND SCOPE OF SERVICES MBCDC will utilize $836,209 of SHIP Fiscal Year 2006/2007 funds as set forth in the Scope of Services in Exhibit "A", attached hereto and made a part hereof by reference (hereinafter referred to as the Funds, which definition shall also include the allocation of any additional funds that maybe provided by the City in the future as a result of an amendment or modification of this Agreement), exclusively for rehabilitation, down payment assistance, closing cost assistance, home ownership counseling, Scattered-Site Home Ownership Program and Rental Development in accordance with the Scope of Services in Exhibit "A", attached hereto. ARTICLE III PROGRAM INCOME MBCDC agrees that any SHIP Program income generated from the use of the Funds under this Agreement, or funds repaid for any reason, after making all debt repayments to the City, or other lender, if any, is to be used to further other affordable housing activities. ARTICLE IV SPECIAL PROVISIONS APPLICABLE TO FUNDS PROVIDED UNDER THE SHIP AND HOME PROGRAMS The parties hereto acknowledge that the Funds provided hereunder are also to be used in conjunction with funds received through the Home Investment Partnerships (HOME) Program. Therefore some or all ofthe projects assisted will be required to comply with the rules of both the SHIP and HOME Programs. The State of Florida has acted to encourage the use of SHIP Program funds incoordination with HOME Program funds by suggesting that in projects which use funding from both sources, generally the HOME rules will take precedence. However, where both SHIP and HOME Program reference a particular term or rule, the rule which is more restrictive will•apply. Any violation of these requirements may, at the City's option, result in the full amount of the Funds being immediately due and payable by MBCDC to the City, and same shall also be considered and treated as an event of default, which may result in the City's termination for cause of the Agreement, pursuant to Article X herein. MBCDC expressly agrees to the following teens and conditions inconformity with the SHIP Program Rule: (a) Affordability Period. The period oftime SHIP assisted units must remain affordable is in accordance with the SHIP Program Rule, or the term of a Department of Housing and Urban Development (HUD) insured mortgage, whichever period occurs later. The Funds shall be repaid in their entirety to the City in accordance with the provisions of the HOME Program regulations 24 CFR Part 92.254, in the event the housing is transferred or sold for any purpose other than settling the estate of one of the owners. (b) Repayment of Funds; Transfer of Title. The Funds shall be repaid in their entirety to the City if the SHIP units are transferred or sold to another owner except as specified herein. Concurrent with the closing on the property rehabilitated hereunder, the owner shall execute a Restrictive Covenant incorporating the pertinent terms of this Article. (c) Projects must provide safe, sanitary, and decent residential housing for low-income, very low-income, and moderate-income persons (i.e., a person whose income is within specific income levels set forth herein, as documented by HUD). (d) Income Targeting. MBCDC shall ensure and maintain written documentation that conclusively demonstrates that each project assisted in whole or in part with SHIP Funds provides benefit to very-low (families whose annual incomes that do not exceed fifty percent (50%) of the median family income for the area), and low- income (families whose annual incomes do not exceed eighty percent (80%) of the median income for the area), and moderate income (families whose annual incomes which do not exceed one hundred twenty percent (120%) ofthe area median income), as determined and published from time-to-time by HUD. (e) MBCDC warrants and represents that it maintains a financial management system that conforms to the financial accountability standards of Attachment F of the Office of Management and Budget (OMB) Circular A- 110. (f) Records: MBCDC agrees to maintain all records sufficient to meet the requirements of the SHIP Program Rule, including, but not limited to: SHIP Program records, project records, and SHIP Program administration records. All records required herein shall be retained and made accessible for a period of at least three (3) years after closing, as provided in the SHIP Program Rule, and Florida Statutes Chapter 119. (g) Property Standards. For the duration of this Agreement, and any amendments hereto, housing that is assisted with SHIP funds, at a minimum, must meet the Housing Quality Standards of CFR Section 882.109. In addition, housing that is newly constructed or substantially rehabilitated with SHIP funds must meet all applicable local codes, rehabilitation standards, ordinances, and zoning ordinances. (h) Maximum and Minimum Amount of SHIP Funds Per Unit. The minimum amount of SHIP funds that can be invested is $1,000 per dwelling unit, and the maximum amount of SHIP subsidy is limited to $40,000 per 2 unit. (i) Environmental Clearance. For each activity or project assisted hereunder, immediately after a site is identified, MBCDC shall obtain the City's written environmental clearance statement and hereby agrees to comply with any and all requirements as may be set forth in the Site Environmental Clearance Statement. (j) Affirmative Marketing. MBCDC acknowledged that it is unlawful to discriminate on the basis ofrace, creed, color, religion, age, sex, sexual orientation, marital status, familial status, national origin or handicap. MBCDC agrees to adopt affirmative marketing procedures and requirements, in writing, for SHIP-assisted housing, as set forth in Chapter 67-37 F.A.C. (k) Affordable Housing: Home Ownership. Housing that is for purchase qualifies as affordable housing only if the housing has an initial purchase price, or appraised value after rehabilitation or repair, that does not exceed ninety percent (90%) of the average purchase price for the Miami-Dade Metropolitan Statistical Area (MSA) of $331,579 for new and existing homes, and subject to change from time-to-time, as determined by the Florida Housing Finance Corporation; is the principal residence of an owner whose family qualifies as very low, low, or moderate-income at the time of purchase; and is subject to resale restrictions or recapture provisions established by the City for the required period of affordability. ARTICLE V ELIGIBLE COSTS MBCDC agrees that eligible costs for the projects under this Agreement are limited to those eligible costs as outlined in .Chapter 67-37.007 of the SHIP Program Rule. It is expressly agreed by the parties that no funds obtained hereunder will be used to acquire, rehabilitate or otherwise assist mobile homes. ARTICLE VI METHOD OF PAYMENT (a) MBCDC shall be paid monthly for eligible costs expended, as permitted under the Scope of Services in Exhibit "A", based on actual costs expended, with supporting documentation provided for expenses that are considered reasonable and necessary and approved by MBCDC's authorized representative. (b) Any payment or disbursement of Funds, or other monies which may be due under the terms of this Agreement, may be withheld at the City's sole discretion pending the receipt of, and approval by, the City of all reports and documents which MBCDC is required to submit to the City pursuant to the terms of this Agreement and any amendments thereto. (c) MBCDC agrees to provide evidence of appropriate licenses and insurance, as required by this Agreement, for each location assisted hereunder. Such evidence must be kept on file with the City. No payments or disbursements will be made without evidence of appropriate insurance required by this Agreement. ARTICLE VII SUBCONTRACTS (a) The parties agree that the work or services covered by this Agreement, including but not limited to rehabilitation work or services, may be subcontracted without the prior written approval of the City, but MBCDC must obtain at least three (3) bids for all rehabilitation work estimated to be in excess of $500. Copies of all bids received shall be kept in the job file. A copy of all executed contracts must be forwarded to the City within ten (10) days after execution. (b) MBCDC agrees to include a statement in all contracts and subcontracts that it executes, or causes to be executed, which expressly provides that the contractor or subcontractor(s) shall hold the City harmless against all 3 claims of any nature arising out of the contractor or subcontractor's performance of work under the contract and this Agreement. ARTICLE VIII CONDITIONS OF SERVICE As a condition of these services, MBCDC agrees to comply with the regulations of the SHIP Program Rule. (a) Equal Opportunity: MBCDC agrees to abide by and be governed by the Equal Opportunity and Fair Housing laws. No person in the United States shall on the grounds of race, color, national origin, religion, disability or sex be excluded from participation in, or be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with SHIP Program funds. (b) Housing assisted with SHIP funds shall be subject to testing and abatement activities for lead-based paint. (c) Additionally, MBCDC agrees to comply with those statutes, regulations and executive orders, as amended, and asset forth in Exhibit "B", attached hereto and herein incorporated by reference. ARTICLE IX TERM OF AGREEMENT This Agreement shall be deemed effective following approval by the Mayor and City Commission and execution of same by the parties hereto. The City and MBCDC mutually agree that the Funds are reserved for MBCDC for the designated time period as follows: (a) Fiscal Year 2006/2007 funds in the amount of $836,209 is reserved through June 30, 2009. MBCDC shall have arranged for the rehabilitation of a minimum of twenty (20) dwellings prior to June 30, 2009, pursuant to the terms of this Agreement. If MBCDC is not in compliance with the schedule attached hereto, the City, in its sole discretion, shall have the right, upon written notice to MBCDC, without further notice (other than the preceding) required, to automatically terminate this Agreement; declare same null and void with regard to the remaining uncommitted Funds; require, at the City's option, that MBCDC immediately pay the entire amount of the Funds back to the City; and take any and all other actions it deems necessary to carry out the commitments of the SHIP Housing Assistance Plan, including selecting another service provider for all or part of the unspent Funds. ARTICLE X TERMINATION In addition to the City's rights and remedies in Article IX above, or as may be provided elsewhere in the Agreement, this Agreement may also be terminated by the City, in whole or in part, for cause (as more specifically defined in Article XXN herein), or for convenience, in accordance with the provisions of the SHIP Program Rule. Written notification shall be submitted at least thirty (30) days prior to the effective date of such termination, and shall include the reason for the termination (if for cause), the effective date, and in the case of a partial termination, the actual portion to be terminated. ARTICLE XI AMENDMENTS Any amendments, alterations, variations, modifications or waivers of any provisions to this Agreement, including an increased allocation of Funds, will only be valid when they have been reduced to writing and duly signed the both parties hereto. Any changes which do not substantially change the Scope of Services or increase the total amount payable under this Agreement, shall be valid only when reduced to writing and signed by the City Manager (or his designee) and MBCDC. ARTICLE XII 4 CONFLICT OF INTEREST (a) MBCDC shall comply with the standards contained within the SHIP Program Rule. (b) MBCDC shall disclose any possible conflicts of interest or apparent improprieties of any party that is covered by the above standards. MBCDC shall make such disclosure in writing to the City immediately upon MBCDC's discovery of such possible conflict. The City will then render an opinion which shall be binding on all parties. (c) Related Parties. MBCDC shall report to the City the name, purpose, and any other relevant information in connection with any related-party transaction. This includes, but is not limited to, dealing with afor-profit subsidiary or affiliate organization, an organization with overlapping board of directors, or an organization for which MBCDC is responsible for appointing members. MBCDC shall report this information to the City prior to forming the relationship or, if already formed, shall report it immediately. Any supplemental information shall be reported in the City required Progress Report (as referenced in Article XIV). 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 officers, directors, employees, agents, servants, contractors, subcontractors, consultants and sub consultants, patrons, guests, clients, and/or invitees. MBCDC shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits in the name ofthe City, when applicable, and shall pay all costs and judgments which may issue thereon. This indemnification shall survive termination and/or expiration of this Agreement. MBCDC shall maintain, during the term of this Agreement, the insurance specified below. (1) General Liability: $500,000 combined single limit for bodily injury and property damage, for each occurrence. (2) Contractual Liability: the policy must include coverage to cover the above indemnification. (3) Automobile and vehicle coverage, in the amount of $500,000 per occurrence, shall be required when the use of automobiles and other vehicles are involved in any way in the performance of the Agreement, including non- owned automobile coverage. (4) Workers' Compensation Coverage as per statutory limits required by 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 specific funded project or projects, upon completion of construction, issued by a company satisfactory to the City. (6) Flood Insurance: If the floor grade of the first level of the building is determined to be below the base floodplain elevation required by the Federal Emergency Management Agency (FEMA) of eight (8) feet above National Geodetic Vertical Datum (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. 5 MBCDC shall submit to the City ORIGINAL certificates of insurance for the above coverage, 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, without further notice to MBCDC required, and the City shall have no obligation under the terms thereof. In the event of such automatic termination, MBCDC shall immediately return the entire amount of the Funds to the City. The City's rights and remedies against MBCDC shall be the same as set forth in Article IX(a). ARTICLE XIV REPORTS (a) Progress Reports. MBCDC agrees to submit monthly progress reports to the City, describing the status of each proposed project and achievement of the project objectives as provided in the Scope of Services in Exhibit "A", attached hereto. The progress reports shall be submitted no later than ten (10) days after the end of each month, and shall continue until such time as all Funds are expended on specific projects. (b) It will be the responsibility of MBCDC to notify the City in writing, of any action, law, or event, that will impede or hinder the success of the projects and activities as provided in this Agreement. After such notification MBCDC will take whatever actions the City deems appropriate to ensure the success of the projects. If the required reports described above are not submitted to the City, or are not completed in a manner acceptable to the City, the City may withhold further payments until they are completed and/or revised, or may take such other action as it may deem appropriate including, without limitation, termination of the Agreement for cause. ARTICLE XV AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City Administration and/or the Florida Housing Finance Corporation (FHFC) may deem necessary, in their respective sole discretion, there shall be made available to the City Administration and/or representatives of the FHFC to audit, examine and make audits of, all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. If during the course of its monitoring, the City determines that any payments made to MBCDC do not constitute an allowable expenditure, the City will have the right to deduct/reduce those amounts from their related invoices. MBCDC must maintain records necessary to document compliance with the provisions ofthis Agreement, for at least three (3) years after the close ofthe fiscal year in which the Funds reserved hereunder are fully expended. ARTICLE XVI COMPLIANCE WITH LOCAL STATE AND FEDERAL REGULATIONS MBCDC agrees to comply with all applicable Federal and State regulations as they may apply to program administration, specifically including, but not limited to, the SHIP and HOME Program Rule(s) Additionally, MBCDC will comply with all State and local laws and ordinances hereto applicable,. 6 ARTICLE XVII ADDITIONAL CONDITIONS (a) It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement, to be used for compensation originated from grants under the SHIP Program and are contingent upon approval of activities by the State of Florida. (b) Title and paragraph headings are for convenient reference and are not a part of this Agreement. (c) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached document, the terms in this Agreement shall have precedence. In the event of conflict between the terms of this Agreement and any terms or conditions contained in the SHIP Program Rule, the terms of the SHIP Program Rule shall have precedence, unless HOME Program Funds are also being used, in which case the provisions of Article IV shall apply. (d) No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. ARTICLE XVIII ACCESS TO RECORDS MBCDC agrees to allow access during normal business hours to all financial, SHIP Program, and HOME Program (if applicable) records to authorized Federal, State or City representatives, including but not limited to, the purposes set forth in Article XV herein, and agrees to provide such assistance as may be necessary to facilitate the conduct of a financial or operational audit by any of these representatives when deemed necessary to insure compliance with applicable accounting and fmancial standards. MBCDC shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City, and or State and/or Federal representatives. ARTICLE XIX SEVERABILITY OF PROVISIONS If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. ARTICLE XX PROJECT PUBLICITY MBCDC agrees that any news release or other type of publicity pertaining to the project as stated herein must recognize the City as the recipient funded by the Florida Housing Finance Corporation, under the State Housing Initiatives Partnership (SHIP) Program, and administered by the CommunityBconomic Development Department of the City of Miami Beach as the entity which provided funds for the particular project. ARTICLE XXI SUCCESSORS AND ASSIGNS MBCDC agrees that this Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors, and assigns. ARTICLE XXII 7 INDEPENDENT CONTRACTOR MBCDC and its employees and agents shall be deemed to be independent contractors and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further they shall not be deemed entitled to the Florida Workers' Compensation benefits as an employee of the City. ARTICLE XXIII ASSIGNMENT This Agreement may not be assigned or transferred by MBCDC without the prior written consent of the City. The City may terminate this Agreement for cause in the event that MBCDC does not strictly comply with the procedures established herein for obtaining City consent to assignment or transfer as defined by this Article. Transfer requiring the City's prior written consent shall include but not be limited to transfers of an interest of more than five (5%) percent ownership in MBCDC's stock by pledge, sale, or otherwise; if MBCDC makes an assignment for the benefit of its creditors, uses this Agreement as security or collateral for any loan; and/or if MBCDC is involved in any bulk transfer of its business or assets. A merger, dissolution, consolidation, conversion, liquidation or appointment of a receiver for MBCDC, shall also be deemed an assignment of this Agreement, and will require the prior written consent of the City thereto. ARTICLE XXIV TERMINATION FOR CAUSE AND/OR FOR CONVENIENCE The City may place MBCDC in default of this Agreement and may suspend or terminate this Agreement, in whole or in part, for cause. "Cause" shall include the following: (a) Failure to comply and/or perform in accordance with any of the terms and conditions of this Agreement, or any Federal, State or local regulation; (b) Failure to submit any required report to the City or submitting any required report which is late, incorrect, or incomplete in any material respect; (c) Implementation of this Agreement, for any reason, is rendered impossible or infeasible; (d) Failure to respond in writing within thirty (30) days of notice of same from City to any concerns raised by the City, including providing substantiating documentation when requested by the City; (e) Any evidence of fraud, waste or mismanagement as determined, by the City's monitoring of project(s) under this Agreement, or any violation of applicable SHIP and/or HOME Program Rules and regulations, or of any applicable City, State, County, and/or Federal laws, ordinances, code provisions, ordinance and/or other regulations; (f) MBCDC'S insolvency or bankruptcy; and (g) An assignment or transfer of this Agreement or any interest therein which has not been approved by the City pursuant to Article XVIII herein. If the default complained of is not fully and satisfactorily cured within thirty (30) days of receipt of such notice of default to MBCDC, at the expiration of said thirty (30) day period (or such additional period of time as may be permitted by the City, in its sole discretion, as required to cure such default in the event MBCDC is diligently pursuing curative efforts), this Agreement may, at the City's sole option and discretion, be deemed automatically canceled and terminated, and the Funds shall immediately become due and payable to the City. The City shall further be fully discharged from any and all liabilities, duties and terms arising out of, or accruing by virtue of, this Agreement. In the event of a default for cause, the City may also, at its option, avail itself of any and 8 all remedies pursuant to 24CFR part 85.43, as amended from time to time, including suspension in whole or in part, of any and all MBCDC's other grant award(s); recapture of those funds; and any other remedies that may be available at law or in equity. Notwithstanding this Article XXN, this Agreement may be terminated by the City, in whole or in part, without cause and for the City's convenience, upon the furnishing of thirty (30) days written notice to MBCDC. In the event of termination for convenience by City, MBCDC herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature against the City, its agents, servants and employees. ARTICLE XXV ADDITIONAL REMEDIES In the event of termination of this Agreement, whether for cause or for convenience, the City shall additionally be entitled to bring any and all legal and/or equitable actions, which it deems to be in its best interest, in Miami-Dade County, Florida, in order to enforce the City's rights and remedies against MBCDC. The City shall be entitled to recover all costs of such actions, including reasonable attorney's fees. Further City and MBCDC hereby knowingly and intentionally waive the right to jury trial in any action or proceeding that City and MBCDC may herein institute against each other with respect to any matter arising out of or relating to this Agreement or the Funds. ARTICLE XXVI MAINTENANCE AND RETENTION OF RECORDS MBCDC agrees that it will maintain all records required pursuant to Chapter 67-37, F.A.C., in an orderly fashion in a readily accessible, permanent and secure location, and that it will prepare and submit all reports necessary and to assist the City in meeting record keeping and reporting requirements thereunder. (a) Records shall be maintained for a period of three (3) years after the closeout of funds under this Agreement except as provided herein in paragraphs (b) and (c) below. (b) If any litigation, claim, negotiation, audit or other action has been started before the regular expiration date, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular period specified in paragraph (a), whichever is later; (c) Records regarding project requirements that apply for the duration of the period of affordability, as well as the written agreement and inspection and monitoring reports must be retained for three years AFTER the required period of affordability. ARTICLE XXVII LIMITATION OF LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of the Funds reserved hereunder, less any amount of the Funds actually paid to MBCDC by the City at the time of the alleged breach. MBCDC hereby expresses its willingness to enter into this Agreement with MBCDC's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the Funds, less any amount, in whole or in part, of the Funds actually paid to MBCDC by the City at the time of the alleged breach. Accordingly, and notwithstanding any other term or condition of this Agreement, MBCDC hereby agrees that the City shall not be liable to MBCDC for damages in an amount in excess of the Funds, less any amount, in whole or in part, of the Funds actually paid to MBCDC by the City at the time of the alleged breach, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing 9 contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. ARTICLE XXVIII VENUE This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, MBCDC AND THE CITY EXPRESSLY 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 XXIX ADDITIONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for the purposes described herein, originated from grants of State Housing Incentives Partnership (SHIP) Program funds, and must be implemented with all of the applicable rules and regulation of the Florida Housing Finance Corporation. It is expressly understood and agreed that in the event of curtailment or non-production of said SHIP Program funds, that the financial sources necessary to continue to pay MBCDC compensation hereunder will not be available and that this Agreement will thereby automatically terminate effective as of the time it is determined that said funds are no longer available. In the event of such determination, MBCDC agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof, personally for the performance of this Agreement and all parties hereto shall be released from further liability each to the other under the terms of this Agreement. ARTICLE XXX NOTICES All notices shall be sent to the parties at the following addresses: City: Anna Parekh, Director Housing and Community Development Division City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 MBCDC: Roberto Datorre, President Miami Beach Community Development Corporation 945 Pennsylvania Ave. Miami Beach, FL 33139 The above parties may change such addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be registered mail, return-receipt requested. 10 IN WITNESS WHEREOF, The parties hereto have caused this Agreement to be executed by their duly authorized official(s), on the day and year first above written. ATTEST: MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION Secretary Roberto Datorre, President Print Name Print Name CITY OF MIAMI BEACH ATTEST: City Clerk Matti Herrera Bower, Mayor 11 EXHIBIT A Scope of Services Services to be Provided: MBCDC will provide: Rehabilitation services, down payment assistance and/or closing cost assistance to home buyers as part of its Scattered-Site Home Ownership Program and Rental Development for a minimum of twenty (20) dwelling units, in accordance with the Budget (See Exhibit A-1). In addition, MBCDC will provide home ownership counseling to a minimum of sixty (60) families and Expenditure Deadline: MBCDC acknowledges and agrees that all Funds provided under this Agreement shall be expended, documented and invoiced to the City prior to June 30, 2009 (see attached Schedule of Expenditures Exhibit A-1). Recapture of Funds: Dwelling units that utilize SHIP funds which are sold to eligible home buyers shall be subject to subsidy recapture provisions which are consistent with those already adopted by the City Local Housing Assistance Plan, adopted April 14, 2004. It is the City's intent to allow the homeowner to realize the equity from their home. The period of time SHIP assisted units must remain affordable is in accordance with the SHIP Program Rule, as applicable, or the term of a HUD insured mortgage, whichever period occurs later. When SHIP funds provided hereunder are combined with HOME funds, the provisions of the HOME Program with regard to the period of affordability will apply. Payment: Payments by the City to MBCDC shall include those eligible costs as follows: Construction Costs: Actual cost of rehabilitating housing, including: labor and materials necessary to meet the requirements of the South Florida Building Code, the City of Miami Beach Building Codes, and U.S. HUD Section 8 Housing Quality Standards. Current or incipient code violations - improvements to correct violations or conditions which may develop into hazardous conditions or code violations. Good and readily maintainable condition -improvements necessary to put the property and facilities in a condition which requires a minimal amount of maintenance, and when appropriate, improvements to conserve energy. General property improvements -improvements which are in addition to those required by applicable codes and ordinances, but which are incidental to the repairs being done to remedy code violations. These improvements maybe considered appropriate, provided they are economically practical and in the public interest. Rehabilitation soft costs: Architectural -reasonable fees paid for professional services in preparing work write-ups, cost estimates, working drawings and specifications; for supervision, for cost certification; and for other designated tasks. Permit fees -those fees paid to the City's Building Services Division for permits necessary to undertake the 12 work outlined in the application for funding as a response to the SHIP Notice of Funding Availability of September 27, 2007. Construction supervision costs, in an amount equal to 10% of the value of the rehabilitation and .5% of the appraised value of the unit. Down Payment Assistance Closing Costs Assistance Home Ownership Counseling Required Documentation: For each home buyer assisted with the Funds provided hereunder, MBCDC shall require to keep the following documentation: A copy of the letter of commitment/award to the SHIP recipient. Completed application form, signed and dated, containing income and asset information, and household characteristics, including age of head of household, family size, race, and special needs, if any. The information must be kept in a form acceptable to the City. The combined household annual anticipated gross income of an applicant must be verified and certified using procedures such as those established by U.S. HUD or the Farmers Home Administration. Whichever method is used, annual gross anticipated income must be used and the SHIP income limits cannot be exceeded. Income verification forms for each adult in the household, dated within 120 days of the award date. Award letter to recipients should include the requirement to notify the City's SHIP Coordinator immediately of any change in income, assets, or household size occurring between the award letter and closing. A signed affidavit of no income change must be completed, if the closing is more than 120 days after the completion of the original income verification. A copy of an appraisal, certified to the lender, dated within ninety (90) days of the closing date, showing a value at least equal to the selling price. A copy of the purchase contract. Letter of commitment or written agreement. Loan closing statement. Lien documentation including the required recapture provisions, executed by the purchaser, and recorded in the public records. A copy of the initial inspection report and work write-up, describing the specific activities to be included in the rehabilitation, and the estimated cost. Copies of bids or proposals from contractors. [At least three (3) bids are required for all work in excess of $500 in value. A copy of the executed construction contract for the rehabilitation work. [copies of the contractor's license, and proof of insurance should be included. 13 Copies of initial, interim and final inspection reports. Copies of all construction payment requests. Copies of all partial and final releases of lien or lien waivers Proof of final payment. Copy of the certificate of completion or certificate of occupancy, as appropriate. Summary reports of all meetings with the home buyer, contractor[s] and MBCDC staff. All relevant correspondence. 14 EXHIBIT B OTHER REQUIREMENTS As the City of Miami Beach is providing this funding through State funds, combined with Federal funds, MBCDC agrees to comply with the following statutes, regulations and executive orders, as amended, as they apply. These requirements are incorporated herein by reference. Freedom of Information and Privacy Acts - Freedom of Information Act (5 U.S.C. 552), and the Privacy Act of 1974 (5 U.S.C. 552a) 2. Equal Opportunity - Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) and 24 CFR Part 1 - Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601) - Executive Order 11063, as amended by Executive Order 12259 - Executive Orders 11246, 11265, 12138 and 12432 - Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 170) - Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) - The Age Discrimination Act of 1975 (42 U.S.C. 6101) -The Fair Housing Amendments Act of 1988 Environmental Review - The National Environmental Policy Act (42 U.S.C. 4321, et seq) - The Council on Environmental Quality Regulations (40 CFR Parts 1500-1508) - Environmental Review Procedures (24 CFR Part 58) -National Historic Preservation Act of 1966 -National Flood Insurance Act of 1968 as amended by the Flood Disaster Protection Act of 1973 4. Lead Based Paint - Lead Based Paint Poisoning Prevention Act (42 U.S.C. 4801, et seq) - HUD Lead Based Paint Regulations (24 CFR Part 35) 5. Asbestos - Asbestos Regulations (40 CFR 61, Subpart M) - U. S. Department of Labor Occupational Health and Safety (OSHA) Asbestos Regulations (29 CFR 191.11 O 1) Handicapped Accessibility - Architectural Barriers Act of 1968 (42 U.S.C. 4151 and 24 CFR Part 41) Labor Standards - The Davis-Bacon Act (40 U.S.C. 276a) as amended - The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333) -Federal Labor Standards Provisions (29 CFR Part 5.5) ADDITIONALLY, ALL PARTIES AGREE TO COMPLY WITH ALL EXISTING FEDERAL, STATE AND LOCAL LAWS AND ORDINANCES HERETO APPLICABLE, AS AMENDED. 15 a0 op ~ J ~ U a o o o o~ e~~ M i N O ~ ~ 10 t O C N~ M . ~ h ~ f0 ~ ~ i I i I li N I -_ ~ -L.._ __ __ ~ __ - - * - . 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