Loading...
HomeMy WebLinkAboutExhibit-Agreement-SUBTHIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. LOAN AGREEMENT SPECIAL ECONOMIC DEVELOPMENT This Agreement is dated as of the day of 2009, by and between the City of Miami, a municipal corporation of the State of Florida (hereinafter the "City") and Parrot Jungle and Gardens of Watson Island, Inc. ("Parrot Jungle"), a Florida for- profit corporation. FUNDING SOURCE: City of Miami General Fund AMOUNT: $800,000.00 APPROVAL: Approved by the City of Miami's Commission on April 2, 2009 PROJECT NAME: Jungle Island at Watson Island PROJECT TYPE: Special Economic Development — Job Retention TERM: PROJECT NUMBER: PROJECT ADDRESS: 1111 Parrot Jungle Trail, Miami, FL 33132 003y5- 1bit(-Ryeemcht-Sue) EXHIBITS ATTACHED: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Work Program (Intentionally Deleted.) (Intentionally Deleted.) Promissory Note (Intentionally Deleted.) (Intentionally Deleted.) (Intentionally Deleted.) (Intentionally Deleted) Insurance Requirements RF."TAT.0 WHEREAS, the City of Miami ("City") entered into a Lease and Development Agreement with Parrot Jungle on September 2, 1997 for an initial 45 year term with a 15 year option period; and WHEREAS, on January 9, 2001, Miami -Dade County ("County") made a Department of Housing and Urban Development Section 108 Loan ("Section 108 Loan") in an amount of $25 million dollars for the construction and operation of Parrot Jungle and Gardens of Watson Island Project; and WHEREAS, on July 10, 2007 through an interlocal agreement as part of the Global Agreement between the City of Miami and Miami -Dade County, the City assumed an 80% interest and obligation in the Section 108 Loan made by Miami -Dade County thereby putting at risk the City's annual Community Development Block Grant ("CDBG") allocations: WHEREAS, Parrot Jungle has created more than 400 jobs in the City due to this funding which will be lost without an intervention by the City; and WHEREAS, on , the City of Miami Commission approved an allocation of City of Miami General Funds ("General Funds") in the form of a loan in the amount of $800,000.00 to (1) allow Parrot Jungle to retain a minimum of 400 existing full-time jobs, (2) secure the City's interest and obligation under the Section 108 Loan made to Parrot Jungle and (3) protect the City's CDBG funding; and -2- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. WHEREAS, the City ana the Parrot Jungle intend and agree that the allocation of General Funds be subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: ARTICLE I DEFINITIONS The City and the Parrot Jungle hereby agree that the capitalized terms used herein shall have the meanings set forth below unless the context requires otherwise: 1.1 CDBG Program: The program created by Title I of the Housing and Community Development Act of 1974, as amended. 1.2 CDBG Requirements: The requirements contained in 24 C.F.R. Part 570 and any other requirements imposed by the City. 1.3 Funds, or, the Loan The loan in the amount of $800,000.00 from the City to the Parrot Jungle for Project. 1.4 Contract Records: Any and all books, records, documents, information, data, papers, letters, materials, electronic storage data and media, whether written, printed, computerized, electronic or electrical, however collected or preserved which is or was produced, developed, maintained, completed, received or compiled by or at the direction of the Parrot Jungle or any subcontractor of the Parrot Jungle in carrying out the duties and obligations required by the terms of this Agreement, including, but not limited to, financial books and records, ledgers, drawings, maps, pamphlets, designs, electronic tapes, computer drives and diskettes or surveys. 1.5 Project: Maintain at least 400 jobs in Parrot Jungle. 1.7 Loan Documents, This Agreement and all other documents that may now or hereafter evidence or secure the General Funds, together with other documents executed in connection therewith or presented by the Parrot -3- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGI NAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Jungle to the City in connection therewith or herewith, and all amendments, extensions and renewals to any of the foregoing. 1.8 Legal Requirements: The CDBG Requirements and all federal laws and regulations pertaining thereto which are. described or referenced in 24 C.F.R. Part 570; any requirements imposed by the City and all local, state and federal requirements relating thereto and/or pertaining to the performance of the Project under the CDBG Program. Although funded with General Funds, the Project shall also comply with CDBG requirements for Special Economic Development project. 1.9 Term: The period commencing 90 days from the Effective Date and ending 48 months later (as defined in Section 2.3 hereof), unless sooner terminated by the City. 1.10 Effective Date: The date on which the City Clerk affixes an attestation to this Agreement. 1.11 Low- and -Moderate- Income A member of a low- or moderate -income family Person: whose income is within specific income levels set forth by U.S. HUD. 1.12 Job Creation/Retention Permanent jobs at least 51 % of which (computed on a full time basis) will be made available or held by low and moderate income persons. 1.13 HUD: The U.S. Department of Housing and Urban Development ARTICLE H GENERAL FUNDS Upon satisfaction of all conditions set forth herein, the City shall disburse the General Funds to the Parrot Jungle for the purposes herein set forth. 2.1 Use of Funds. The General Funds may be used to at least maintain 400 jobs created in the City of Miami by Parrot Jungle. ME THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 2.2 Disbursement. The disbursement of funds will be subject to: (i) Parrot Jungle providing, to the satisfaction of the City Manager, a firm commitment in an amount greater than $1,449,000, or proof that it has paid all outstanding property taxes owed; (ii) a 48 -month deferral of the Minimum Annual Rent and Percentage Rent Parrot Jungle pays to the City on the Parrot Jungle Property by the City Commission; (iii) Parrot Jungle providing the City with access and the necessary materials, as the City may request, to conduct analysis of the business model for the purpose of improving the survivability of the business thereby mitigating the City's exposure; and The Parrot Jungle may not request disbursement of funds pursuant to this Agreement until all the loan conditions have been met. 2.3 Repayment of General Funds. The Loan will be amortized at the rate of zero percent (0) for a period of forty eight (48) months with a monthly payment of $16,667. Loan will become fully payable if the Parrot Jungle fails to maintain the 400 full time equivalent ("FTE") jobs at the Parrot Jungle. ARTICLE III DISBURSEMENT REQUIREMENTS 3.1 CONDITIONS OF DISBURSEMENT OF GENERAL FUNDS. The City shall not be obligated to disburse the General Funds unless and until the City has received the following: 3.1.1 Corporate Documents. (a) The certificate of incorporation or partnership agreement, or their equivalent, as appropriate, and a good standing certificate for the Parrot Jungle, certified by the appropriate governmental authority. (b) Bylaws, resolutions, and incumbency certificates, or, in the case of a partnership, their equivalent, for the Parrot Jungle, certified by the Corporate Secretary or other authorized signer, authorizing the consummation of the transactions contemplated hereby, all satisfactory to the City. -5- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. CIRIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. (c) Evidence satisfactory to the City that the Parrot Jungle is qualified to receive funds under the CDBG Program in accordance with the CDBG Requirements. 3.1.2 Insurance Policies. The Parrot Jungle shall obtain and furnish evidence of any insurance coverage the City may require relating the Project and/or Property, including but not limited to that described on Exhibit "I" hereto. All such policies shall provide the City with mandatory written notice of cancellation or material change from the insurer not less than thirty (30) days prior to any such cancellation or material change, and all such policies shall be written by insurance companies satisfactory to the City and shall insure the City as an additional insured, with a loss payable clause in favor of the City. 3.1.3 Operative Documents. This Agreement, the Note and all other Loan Documents, duly and lawfully executed by the Parrot Jungle and in recordable form as appropriate. 3.1.4 List of Subcontractors. A list of all of the Parrot Jungle's subcontractors as of the date of execution of this Agreement, and copies of all contracts in excess of $10,000 for the performance of services or the supply of materials in connection with the Project, to be funded pursuant to this Agreement. 3.1.5 Compliance with CDBG Requirements. All other documents required by the CDBG Program evidencing compliance with CDBG Requirements. 3.1.6 First Source Hiring Agreement. (Intentionally Deleted) 3.1.7 Audit Report. The Parrot Jungle shall submit to the City audit reports as are required herein - 3.1.8 All other documents reasonably required by the City. ARTICLE IV CDBG REQUIREMENTS The Parrot Jungle shall comply with the following CDBG Requirements: 4.1 GENERAL. 4.1.1 The Parrot Jungle shall maintain current documentation that its activities qualify under the CDBG Requirements. 4.1.2 The Parrot Jungle shall ensure and maintain documentation that conclusively demonstrates that each activity assisted in whole or in part with City Funds is an activity which benefits Low and Moderate Income Persons as defined in 24 C.F.R. Part 570. -6- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 4.1.3 The Parrot Jungle shall comply with all applicable provisions of 24 C.F.R. Part 570 and shall carry out each Project activity in compliance with all applicable federal laws and regulations. 4.1.4 The Parrot Jungle shall cooperate with the City in informing the appropriate citizen participation structures, including the appropriate area committees, of the activities of the Parrot Jungle in adhering to the provisions of this Agreement. Representatives of the Parrot Jungle shalt attend meetings of the appropriate committees and citizen participation structures upon the request of the citizen participation officers or the City. 4.1.5 The Parrot Jungle shall, to the greatest extent possible, give Low and Moderate Income residents of the service community opportunities for training and employment. 4.1.6 The Parrot Jungle shall comply with all applicable displacement and relocation requirements. 4.2 PERSONAL PROPERTY. Ownership of all non -expendable personal property purchased in whole or in part with funds given to the Parrot Jungle pursuant to the terms of this Agreement shall vest in the City. 4.3 DISPOSITION. The Parrot Jungle shall obtain the prior written approval of the City for the disposition of real or personal property purchased in whole or in part with funds given to the Parrot Jungle or its subcontractors pursuant to the terms of this Agreement, and shall dispose of all such property in accordance with instructions from the City. Those instructions may require the return of all such property to the City. 4.4 SUBCONTRACTS AND ASSIGNMENTS. 4.4.1 The Parrot Jungle shall ensure that all subcontracts and assignments: (a) Identify the full, correct, and legal name of all parties; (b) Describe the activities to be performed; (c) Present a complete and accurate breakdown of its price component; (d) Incorporate a provision requiring compliance with all applicable regulatory and other requirements of this Agreement, including but not -7- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. limited to the record-keeping and audit requirements hereof, the City's Minority Procurement Ordinance, and with any other conditions and/or approvals that the City may deem necessary. The requirements of this paragraph apply to subcontracts and assignments in which parties are engaged to carry out any eligible substantive programmatic service, as may be defined by the City, set forth in this Agreement. The City shall in its sole and absolute discretion determine when services are eligible substantive programmatic services and subject to the audit and record- keeping requirements described in this Agreement; and (e) Incorporate the language of the Certificate Regarding Lobbying executed in connection herewith. 4.4.2 The Parrot Jungle shall incorporate in all consultant and other subcontracts the following provision: "Parrot Jungle and Gardens of Watson Island, Inc., is not responsible for any insurance or other fringe benefits, e.g., social security, income tax withholding, retirement or leave benefits, for the Consultant or employees of the Consultant, that are normally available to direct employees of Parrot Jungle and Gardens of Watson Island, Inc.,. The Consultant assumes full responsibility for the provision of all insurance and fringe benefits for himself/herself/itself and employees retained by the Consultant in carrying out the Work Program provided in this subcontract." 4.4.3 The Parrot Jungle shall be responsible for monitoring the contractual performance of all subcontracts. 4.4.4 The Parrot Jungle shall submit to the City for its review and confirmation any subcontract engaging any party who agrees to carry out any substantive programmatic activities, to ensure its compliance with the requirements of this Agreement. The City's review and confirmation shall be obtained prior to the release of any funds for the Parrot Jungle's subcontractor(s). 4.4.5 The Parrot Jungle shall receive written approval from the City prior to either assigning or transferring any obligations or responsibility set forth in this Agreement. 4.4.6 Approval by the City of any subcontract or assignment shall not under any circumstances be deemed to be the City's agreement to incur any obligations in excess of the total dollar amount agreed upon in this Agreement. 4.4.7 The Parrot Jungle and its subcontractors shall comply with the Davis -Bacon Act, if applicable, the Copeland Anti -Kick Back Act, the Contract Work Hours and Safety -Standards Act, the Lead -Based Paint Poisoning Prevention Act, the Residential Lead Based Paint Hazard Reduction Act of 1992 (and implementing regulations at 24 C.F.R. Part 35 and any other applicable laws, ordinances and regulations. -8- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 4.4.8 The Parrot Jungle shall submit to the City for written prior approval all proposed Solicitation Notices, Invitations for Bids, and Requests for Proposals. 4.5 REPORTS, COMPLIANCE, AND AUDITS. 4.5.1 The Parrot Jungle shall submit, as required, the following: 4.5.1.1 Progress Reports. The Parrot Jungle shall submit status reports and projected completion dates to describe the progress made by the Parrot Jungle in achieving each of the objectives identified in Exhibit "A". 4.5.1.2 Inventory Report. The Parrot Jungle shall report all real property and all non -expendable personal property as specified in Paragraphs 4.2 and 4.3 hereof. Such report shall be submitted as requested by the City. 4.5.13 Affirmative Action Plan. The Parrot Jungle shall report to the City such information relative to the equality of employment opportunities whenever requested by the City. 4.5.1.4 Affirmative Marketing Plan and Report. (Intentionally Deleted) 4.5.1.5 List of Subcontractors. A list of all of the Parrot Jungle's subcontractors and copies of all contracts in excess of $10,000 for the performance of services or the supply of materials in connection with the Project. 4.5.1.6 Employment Report. The Parrot Jungle shall report to the City, every six months, the number of jobs that were maintained during the six month period in accordance with the Work Plan and as otherwise required by this Agreement and the other Loan Documents. 4.5.1.7 All such other reports as may be requested by the City. 4.6.2 Federal, State and County Laws and Regulations. 4.6.2.1 The Parrot Jungle shall comply with applicable uniform administrative requirements as described in 24 C.F.R. §570.502, a copy of which is attached as Exhibit G. 4.6.2.2 The Parrot Jungle shall carry out each activity in compliance with all Federal laws, regulations and requirements described in subpart K of 24 C.F.R. Part 570, except that the Parrot Jungle does not assume: (1) the City's environmental responsibilities described at -9- THIS DOCU ME NT iS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. Section 570.604 and, (2) the City's responsibility for initiating the review process under the provisions of 24 C.F.R. Part 52. 4.6.2.3 The Parrot Jungle shall comply with all applicable federal laws, regulations and requirements including, but not limited to: 24 C.F.R. Part 570; 24 C.F.R. Part 85, Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the basis of race, color, or national origin; the Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; Title VIII of the Civil Rights Act of 1968, as amended; Executive Order 11246 which requires equal employment opportunity. 4.6.3 Audits. 4.6.3.1 The Parrot Jungle shall submit to the City an audit conducted by an independent certified public accountant or firm of independent certified public accountants in accordance with the general accepted auditing standards set forth in the Government Auditing Standards issued by the Comptroller General of the United States of America and the provisions of the Office of Management and Budget Circular No. A-133 ("Audits of Institutions of Higher Education and other Nonprofit Organizations"), including a report on compliance with laws and regulations based on an audit of financial statements performed in accordance with Government Auditing Standards and a report on internal control structure required by OMB Circular No. A-133. Two copies of such audit must be delivered to the City no later than six (6) months following the end of each Parrot Jungle fiscal year. 4.6.3.2 The Parrot Jungle shall include in all subcontracts to carry out any eligible substantive programmatic services, as such services are described in this Agreement and defined by the City, each of the record keeping and audit requirements detailed in this Agreement. The City shall in its sole discretion determine when services are eligible substantive programmatic services and subject to the audit and recordkeeping requirements described above. 4.7 RECORDS. The Parrot Jungle shall establish and maintain sufficient records to enable the City to determine whether the Parrot Jungle has met the requirements of the Program. The Parrot Jungle shall maintain all Contract Records in accordance with generally accepted accounting principles, procedures, and practices, which records shall sufficiently and properly -10- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT TAF F'tiD OF THIS DOCUMENT. reflect all revenues and expenditures of funds provided directly or indirectly by the City pursuant to the terms of this Agreement. At a minimum, the following records shall be maintained by the Parrot Jungle: 4.7.1 Records providing a full description of each activity assisted (or being assisted) with General Funds, including its location (if the activity has a geographical locus), the amount of General Funds budgeted, obligated and expended for the activity, and the specific provision in 24 C.F.R. Subpart C of the CDBG Program regulations under which the activity is eligible. 4.7.2 Records demonstrating that each activity undertaken meets one of the criteria set forth in 24 C.F.R.§570.208 of the CDBG Program regulations. Where information on income by family size is required, the Parrot Jungle may substitute evidence establishing that the person assisted qualified under another program having income qualification criteria at least as restrictive as that used in the definitions of "low and moderate income person" and "low and moderate income household" as set forth in 24 C.F.R.§570.3; or the Parrot Jungle may substitute a copy of a verifiable certification from the assisted person that his or her family income does not exceed the applicable income limit established in accordance with 24 C.F.R.§570.3; or the Parrot Jungle may substitute a notice that the assisted person is a referral from any governmental agency that determines persons to be "low and moderate income persons" based upon HUD's criteria and agrees to maintain documentation supporting those determinations. Such records shall include the specific information required pursuant to 24 C.F.R.§570.506(b). 4.7.3 Records containing data on the extent to which each racial and ethnic group and single -headed households (by gender of household head) have applied for, -11- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. participated in, or benefited from, any program or activity funded in whole or in part with General Funds, 4.7.4 Documentation of actions undertaken to meet the requirements of 24 C.F.R.§570.607(b) which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701U) relative to the hiring and training of low and moderate income persons and the use of local businesses. 4.7.5 Data indicating the racial/ethnic character of each business entity receiving a contract or subcontract of $25,000 or more paid, or to be paid, with General Funds, and such additional information as is required pursuant to 24 C.F.R §570.506(g)(6). 4.7.9 Financial records in accordance with the applicable requirements listed in 24 CFR 570.502. 4.7. 10 Records required to be maintained in accordance with other applicable laws and regulations set forth in Subpart K of 24 C.F.R. 4.8 RETENTION AND ACCESSIBILITY OF RECORDS. 4.8.1 The City shall have the authority to review the Parrot Jungle's records, including Project and programmatic records and books of account, throughout the Retention Period (as hereinafter defined). All books of account and supporting documentation shall be kept by the Parrot Jungle at least until the expiration of the Retention Period. The Parrot Jungle shall maintain records sufficient to meet the requirements of 24 C.F.R. Part 570. All records and reports required herein shall be retained and made accessible as provided thereunder. -12- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THF FND OF THIS DOCUMENT. The Parrot Jungle shall ensure that the Contract Records shall be at all times subject to and available for full access and review, inspection and audit by the City, federal personnel and any other personnel duly authorized by the City. 4.8.2 The Parrot Jungle shall include in all the City approved subcontracts used to engage subcontractors to carry out any eligible substantive Project or programmatic activities, as such activities are described in this Agreement and defined by the City, each of the record-keeping and audit requirements detailed in this Agreement. The City shall in its sole discretion determine when services are eligible substantive programmatic activities and subject to the audit and record- keeping requirements described in this Agreement. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PARROT JUNGLE The Parrot Jungle represents and warrants to the City as follows: 5.1 Organization and Existence. The Parrot Jungle is a Florida for-profit corporation, duly organized, validly existing and in good standing under the laws of the State of Florida, and has full power and authority to conduct its business as presently conducted, to receive the General Funds and to own the Property. The Parrot Jungle has full power and authority to perform the provisions hereof and of its agreements and undertakings with the City and to perform the transactions contemplated hereby, and such execution and performance have been duly authorized by all necessary corporate or other approvals and actions. 5.2 Correctness of Documents. The cost estimates, Budget, schedules, and all other documents furnished to the City in accordance with the Program, this Agreement, and/or the other City Documents, are true and correct in all material respects and accurately set forth the -13- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. facts contained therein and neither misstate any material fact nor, separately or in the aggregate, fail to state any material fact necessary to make the statements made therein not misleading. 5.3 Absence of Proceedings, Actions and Jud moments. There are no conditions, circumstances, events, agreements, documents, instruments, restrictions, actions, suits or proceedings pending or threatened against or affecting the Parrot Jungle, the Project or the Property which could adversely affect the Parrot Jungle's ability to comply with the CDBG Program, perform its obligations hereunder, or which would constitute an Event of Default hereunder or under the other Documents regardless of the giving of notice or the passage of time or both. There are no outstanding or unpaid judgments or arbitration awards against the Parrot Jungle. 5.4 Non -Default. The Parrot Jungle is not in default or violation with respect to any Legal Requirement, nor is it in default under or in material breach of any instrument or agreement to which it is a party or by which it otherwise may be bound. The execution and delivery of this Agreement and the other Documents, the consummation of the transactions contemplated hereby, and development of the Project as contemplated hereby and by the other Documents: (i) do not and will not conflict with or result in violation of any Legal Requirement or in the breach or default under any indenture, contract, agreement or other instrument to which the Parrot Jungle is a party or by which it may be bound, and (ii) have been duly authorized by all necessary actions and approvals, whether corporate or otherwise. 5.5 Valid Obligations. This Agreement and all of the other Documents, when executed and delivered, shall constitute the duly authorized, legal, valid and binding obligations of the Parrot Jungle and will be enforceable in accordance with their respective terms. 5.6 Marketable Title. (Intentionally deleted) -14- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 5.7 Compliance. The completion and use of the Project in accordance with the Work Program will comply fully with all Legal Requirements, and any other condition, grant, easement, covenant, or restriction, whether recorded or not. All necessary approvals, permits and licenses for the performance of the Project have been unconditionally obtained and are in full force and effect. -5.8 Encroachments. (Intentionally Deleted) 5.9 Work Program. The Work Program is complete in all respects. 5.10 Pending Assessments. The Parrot Jungle has no knowledge of any pending or proposed governmental action that would impair the value of the Property or result in a special assessment against the Property. 5.11 Fraud. No fraud by the Parrot Jungle has occurred in the qualification of the Project, the Parrot Jungle and/or the Property under the CDBG Program, the negotiation of this Agreement and the other CDBG Documents, nor in the transactions contemplated hereby. 5.16 Compliance with Laws and Regulations. The Parrot Jungle will comply at all times with all Legal Requirements. The Parrot Jungle will comply at all times with the CDBG Requirements affecting the ownership, use, and rehabilitation of the Property and the performance of the Project. 5.18 Reaffirmation. Each of the representations and warranties set forth in this Article shall be true at all times, and the Parrot Jungle's acceptance of each draw of the General Funds hereunder shall be deemed to be a reaffirmation of each of the representations and warranties given in this Agreement. ARTICLE VI PARROT JUNGLE'S OBLIGATIONS 6.1 Work Program. The Parrot Jungle shall perform the Work Program as set forth herein and on Exhibit "A" attached, in a manner that is lawful, satisfactory to the City, and in -15- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. accordance with the written policies, procedures, and requirements prescribed by HUD and/or in this Agreement or otherwise by the City. The City will monitor the 400 full time equivalent jobs to be maintained under this Agreement for compliance with the contract requirements until the expiration of this Agreement. In the event that start-up time for the Work Program is required, or in the event of the occurrence of any delays in the activities thereunder, the Parrot Jungle shall immediately notify the City in writing of all pertinent details, including, but no limited to, when the Work Program shall begin and/or continue. Any activities funded through or as a result of this Agreement shall not result in the displacement of employed workers, impair existing agreements for services or activities, or result in the substitution of funds allocated under this Agreement for other funds in connection with work which would have been performed in the absence of this Agreement. 6.2 Reporting Obligations. The Parrot Jungle shall submit to the City all reports as described in Article 4 hereof, and all other reports that the City may reasonably require, in such form, manner, and frequency as the City may reasonably require to monitor the progress of the Project and the Parrot Jungle's performance and compliance with this Agreement and all Legal Requirements. 6.3 Retention of Records. The Parrot Jungle shall retain all Contract Records for five (5) years after expiration of the term of the Agreement (herein referred to as "Retention Period") subject to the limitations set forth below: (a) If the City or the Parrot Jungle has received or given notice of any kind indicating any threatened or pending litigation, claim or audit arising out of the activities relating to the Project or the Work Program or under the terms of this Agreement, the Retention Period shall be extended until such time as the threatened or pending litigation, -16- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. claim or audit is, in the sole and absolute discretion of the City, fully, completely and finally resolved. (b) The Parrot Jungle shall allow the City or any person authorized by the City full access to and the right to examine any of the Contract Records during the Retention Period. (c) The Parrot Jungle shall notify the City in writing, both during the pendency of this Agreement and after its expiration termination, as part of the final closeout procedure, of the address where all Contract Records will be retained. (d) The Parrot Jungle shall obtain the prior written consent of the City to dispose of any Contract Records within one (1) year after the expiration of the Retention Period. 6.4 Provision of Records. All of the Contract Records are subject to the provisions of Chapter 119, Florida Statutes, commonly referred to as the "Public Records Law". The Parrot Jungle shall provide to the City, upon request, all Contract Records. The requested Contract Records shall become the property of the City without restriction, reservation, or limitation on their use and shall be made available by the Parrot Jungle at any time upon request by the City. The City shall have the unlimited right to all books, articles, or other copyrightable materials developed in the performance of this Agreement, including, but not limited to, the right of royalty -free, non-exclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, the Contract Records for public purposes. If the Parrot Jungle receives funds from, or is under regulatory control of, other governmental agencies and those agencies issue monitoring reports, regulatory examinations, or other similar reports, the Parrot Jungle shall provide a copy of each such report and any follow- -17- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. up communications and reports to the City immediately upon such issuance unless such disclosure is a violation of those agencies' rules. 6.5 Prior Approval. The Parrot Jungle shall obtain the City's prior written approval prior to undertaking any of the following: (a) The sale, assignment, pledge, transfer, hypothecation or other encumbrance or disposition of any proprietary or beneficial interest in the Parrot Jungle or any change in the operating control of the Parrot Jungle. (b) The disposition of any real property or any non -expendable personal property except as provided in this Agreement. (c) The use of Program Income not specifically listed in the approved Budget. (d) (Intentionally Deleted.) (e) The disposal of any Contract Records. 6.6 Monitoring. The Parrot Jungle shall permit the City and other persons duly authorized by the City to inspect all Contract Records, facilities, goods, and activities of the Parrot Jungle that are in any way connected to the activities undertaken pursuant to the terms of this Agreement, and/or to interview any clients, employees, subcontractors, or assignees of the Parrot Jungle. Following such inspection or interviews, the City will deliver to the Parrot Jungle a report of its findings. The Parrot Jungle will rectify all deficiencies cited by the City within the period of time specified in the report, or provide the City with a reasonable justification for not correcting the deficiencies. The City will determine, in its sole and absolute discretion, whether or not the Parrot Jungle's justification is acceptable. 6.7 Conflict of Interest. A. The Parrot Jungle is aware of the conflict of interest laws of the City of Miami (Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida -18- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. (Code of Miami -Dade County, Florida, Section 2-11.1), and of the State of Florida (as set forth in Florida Statutes), and with the CDBG Program conflict of interest rules (24 C.F.R.§92.356), and agrees that it will fully comply in all respects with the terms thereof and any future amendments. B. The Parrot Jungle covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. The Parrot Jungle further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to the Work Program or services provided hereunder. Any such conflict of interest(s) on the part of the Parrot Jungle, its employees or associated persons or entities must be disclosed to the City. C. The Parrot Jungle shall disclose any possible conflicts of interest or apparent improprieties of any party under or in connection with the Legal Requirements, including the standards for procurement. D. The Parrot Jungle shall make any such disclosure to the City in writing and immediately upon the Parrot Jungle's discovery of such possible conflict. The City's determination regarding the possible conflict of interest shall be binding on all parties. E. No employee, agent, consultant, elected official or appointed official of the City, exercising any functions or responsibilities in connection with the City's CDBG Program or this Agreement, or who is in a position to participate in the decision-making process or gain inside information regarding CDBG-assisted activities, has any personal financial interest, direct or indirect, in this Agreement, the proceeds hereunder, the Project or the Parrot Jungle, either for themselves or for those with whom they have family or business ties, during their tenure or for one year thereafter. -19- THIS DOCUMENT 1S A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 6.8 Related Parties. The Parrot Jungle shall report to the City the name, purpose for and any other relevant information in connection with any related -party transaction. The term "related party transaction" includes, but is not limited to, a transaction or relationship between the Parrot Jungle and a for-profit or nonprofit subsidiary or affiliate organization, an organization with an overlapping board of directors, and an organization for which the Parrot Jungle is responsible for appointing memberships. The Parrot Jungle shall report this information to the City upon forming the relationship, or if already formed, shall report such relationship prior to or simultaneously with the execution of this Agreement. Any supplemental information shall be promptly reported to the City no later than in the next required Progress Report, as described above. 6.9 Procurement From Minority/Women Owned Businesses. The Parrot Jungle shall make a positive effort to procure supplies, equipment, constructionfrehabilitation services, and/or other services to fulfill this Agreement from minority and women owned businesses, and to provide these sources the maximum feasible opportunity to compete for subcontracts to be performed pursuant to this Agreement. To the maximum extent feasible, these businesses shall be located in or owned by residents of the community development areas designated by the City. 6.10 Additional Funding. The Parrot Jungle shall notify the City of any additional funding received for any activity described in this Agreement. Such notification shall be in writing and received by the City within thirty (30) days of the Parrot Jungle's notification by the funding source. 6.11 Reversion of Assets. The Parrot Jungle shall return to the City upon the expiration or termination of this Agreement any General Funds on hand, any accounts receivable attributable to the General Funds, and any overpayments due to unearned funds or costs disallowed pursuant to the terms of this Agreement that were disbursed to the Parrot Jungle by -20- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. the City. Any funds not earned by the Parrot Jungle prior to the expiration or termination of this Agreement shall be retained by the City. 6.12 Repayment of Funds Procedures. If for any reason the Project fails to comply with the requirements of 24 C.F.R. Part 570, the Parrot Jungle shall repay to the City all funds received by the Parrot Jungle pursuant to this Agreement. 6.13 Affirmative Marketing. (Intentionally Deleted) 6.14 Transfer of Property Ownership to the City. (Intentionally Deleted) 6.15 Section 3 Clause. The Parrot Jungle shall comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended (12 U.S.C. 1701u): (A) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu (Section 3.) The purpose of Section 3 is to 'ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3, shall to the greatest extent feasible, be directed to low income persons, particularly persons who are recipients of HUD assistance for housing. (B) The parties to this contract agree to comply with HUD's regulations in 24 C.F.R. Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (C) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or worker's representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (D) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable -21- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMFN 1. provision of the subcontract or in this Section 3 clause. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135. (E) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 C.F.R. Part 135. (F) Noncompliance with HUD's regulations in 24 C.F.R. Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. (G) With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self - Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b). 6.16 Signage, Acknowledgement, Publicity. (Intentionally Deleted) 6.17 Costs Incurred By the City. (Intentionally Deleted) 6.18 Affirmative Action. The Parrot Jungle shall not discriminate on the basis of race, color, national origin, sex, religion, age, sexual orientation, marital or family status or handicap/disability in connection with its performance under this Agreement. Age discrimination and discrimination against minor dependents are also not permitted. 6.19 (Intentionally Deleted.) 6.20 Compliance Requirements. The Parrot Jungle shall comply at all times with all applicable CDBG Requirements and all other Legal Requirements. -22- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OR THIS DOCUMENT. The Parrot Jungle shall at any time and from time to time upon the request of the City, at its sole cost and expense, execute, acknowledge and deliver such further notices and other documents and perform such other acts as may, in the opinion of the City, be necessary, desirable or proper to carry out more effectively the purposes of this Agreement and the other Loan Documents. 6.21 Compliance with Safety Precautions. The Parrot Jungle shall allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of such laws, rules, regulations and ordinances. The Parrot Jungle shall have no recourse against the City, its agents, or representatives for the occurrence, non-occurrence or result of such inspection(s). Simultaneously with the submission of its first draw request to the City, the Parrot Jungle shall contact the City's Risk Management Department Safety Unit in writing to coordinate such inspection(s). The Parrot Jungle shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, the Parrot Jungle shall take affirmative steps to ensure nondiscrimination in the employment of disabled persons. 6.22 Religious Organizations/Constitutional Prohibition. -23- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. If the Parrot Jungle is or was created by a religious organization, the Parrot Jungle agrees that all General Funds disbursed under this Agreement shall be subject to the conditions, restrictions, and limitations of the CDBG Program. ARTICLE VII DEFAULT 7.1 The happening of any one or more of the following events shall constitute an Event of Default: (a) If any term, condition or representation contained in this Agreement or any of the other Documents is untrue, substantially inaccurate or incomplete, or, if there is a material misrepresentation of fact or fraud contained in any document(s) submitted in support of this Agreement. (c) The substantial discontinuance of the performance of the Project for a period of fourteen (14) days which discontinuance is, in the sole determination of the City, without satisfactory cause. (d) The sale, assignment, pledge, transfer, hypothecation or other disposition of any proprietary or beneficial interest in the Parrot Jungle, or any change in operating control of the Parrot Jungle, without prior written approval as required by this Agreement. (e) In the event that the City determines, in its sole and absolute discretion, that the Parrot Jungle has failed to comply promptly with any requirement or notice of violation of law issued by or filed by the City or any department of any governmental authority having jurisdiction over the Parrot Jungle. (f) Failure by the Parrot Jungle to materially comply with any term or provision of this Agreement. -24- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. (g) Any change in building or zoning requirements or the zoning classification of the Property, which, in the City's sole discretion, would materially interfere with the performance of the Project as contemplated herein. (h) In the event that the City determines, in its sole and absolute discretion, that there exists an event of default under and pursuant to the terms of any other agreement or obligation of any kind or nature whatsoever of the Parrot Jungle to the City, direct or contingent, whether now or hereafter due, existing, created or arising. (i) (Intentionally Deleted.) 0) In the event that the City determines, in its sole and absolute discretion, that there exists an event of default under and pursuant to the terms of any of the other Loan Documents and the continuance of such event beyond the applicable cure period, if any. ARTICLE VIII REMEDIES 8.1 Upon the occurrence of any Event of Default, the City shall have the absolute right to refuse to disburse any undisbursed portion of the Loan. If an Event of Default shall continue uncured for a period of thirty (30) consecutive days following written notice thereof to the Parrot Jungle (except for the events described in Article VII (a), (h) and 0) above for which the aforementioned cure period shall not apply) the City shall have the absolute right, at its option and election and in its sole discretion to: (a) Specific Performance. Institute appropriate proceedings to specifically enforce performance of the terms and conditions of this Agreement. (b) Recapture of General Funds. Demand that the Parrot Jungle reimburse the City, and the Parrot Jungle shall reimburse the City, for the General Funds disbursed to the Parrot Jungle pursuant to this Agreement. -25- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. (c) Suspension. Take one or more of the actions provided in Article X hereof. (d) Termination. Terminate this Agreement as provided in Article IX hereof. (e) Other Remedies. Exercise any other right, privilege or remedy available to the City as may be provided by applicable law, in this Agreement or in any of the other Documents. It is understood and agreed that the occurrence of an Event of Default under Article VII (a), (h) or 6) shall immediately entitle the City to exercise any of the above described remedies without the need to give the Parrot Jungle notice thereof nor the opportunity to cure. The rights and remedies of the City hereunder shall be cumulative and not mutually exclusive, and the City may resort to any one or more or all of said remedies without exclusion of any other. No party other than the City, whether the Parrot Jungle or a materialman, laborer, subcontractor or supplier, shall have any interest in the General Funds withheld because of a default hereunder, and shall not have any right to garnish or require or compel that payment thereof be applied toward the discharge or satisfaction of any claim or lien which any of them may have. ARTICLE IX TERMINATION 9.1 Termination Because of Lack of Funds. In the event the City does not receive from its funding source funds to finance this Agreement, or in the event that the City's funding source de -obligates the funds allocated to finance this Agreement, the City may terminate this Agreement upon not less than twenty-four (24) hours prior notice in writing to the Parrot Jungle. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. The City shall determine, in its sole and absolute discretion, whether or not funds are available. -26- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 9.2 Termination for Breach. The City may terminate this Agreement, in whole or in part upon the occurrence of an Event of Default, and the continuance of such Event of Default beyond the applicable cure period, if any. 9.3 The City may terminate this Agreement in accordance with the provisions of 24 C.F.R. §85.44. 9.4 Upon the occurrence of an Event of Default and the expiration of any cure period (in those circumstances for which a cure period is otherwise provided in this Agreement), and unless the Parrot Jungle's breach is waived by the City in writing, the City may, by written notice to the Parrot Jungle, terminate this Agreement upon not less than twenty-four (24) hours prior written notice. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. The provisions hereof are not intended to be, and shall not be, construed to limit the City's right to legal or equitable remedies. ARTICLE X SUSPENSION 10.1 In the event the City determines, in its sole and absolute discretion, that the Parrot Jungle has failed to materially comply with any term or provision of this Agreement, any of the other Loan Documents or any of the Legal Requirements, after the expiration of any applicable cure period the City may take one or more of the following actions: (a) temporarily withhold cash payments pending corrective action by the Parrot Jungle, (b) disallow all or part of the activity or action not in compliance, (c) wholly or partially suspend or terminate this Agreement, (d) take such other remedies as may be legally available, -27- TRIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. (e) withhold further/other CDBG awards to the Parrot Jungle. 10.2 The determinations and actions described in paragraph 10.1 above may be applied to all or any part of the activities funded pursuant to this Agreement. 10.3 The City will notify the Parrot Jungle in writing of the type of action taken pursuant to this Article, by certified mail, return receipt requested, or by in person delivery with proof of delivery. The notification will include the reason(s) for such action, any conditions relating to the action, and the necessary corrective action(s). ARTICLE XI INDEMNIFICATION The Parrot Jungle shall indemnify and hold the City and its past, present and future employees and agents harmless from any and all claims, liabilities, losses, and causes of action which may arise out of the actions, negligence, or omission, in whole or in part, of the Parrot Jungle, its officers, agents, employees, or assignees in the fulfillment of this Agreement. The Parrot Jungle shall pay all claims and losses of any nature in connection therewith, and shall defend all suits, in the name of the City when applicable, and shall pay all costs and judgments which may issue thereon. ARTICLE XII MISCELLANEOUS 12.1 Enforcement Methods. As a means of enforcing compliance with the CDBG Program, the City may utilize any enforcement measures it deems necessary. 12.2 Renegotiation or Modification. Modification of provisions of this Agreement shall be valid only when in writing and signed by the parties hereto. The parties agree to modify this Agreement if the City determines, in its sole and absolute discretion, that federal, state, and/or local governmental revisions of any applicable laws or regulations, or increases or decreases in budget allocations, make changes to this Agreement necessary. The City shall be -28- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. the final authority in determining whether or not funds for this Agreement are available due to federal, state and/or local governmental revisions of any applicable laws or regulations, or increases or decreases in budget allocations. 12.3 Right to Waive. The City may, for good and sufficient cause, as determined by the City in its sole and absolute discretion, waive provisions of this Agreement or seek to obtain such waiver from an appropriate authority. Waiver requests from the Parrot Jungle shall be in writing. A waiver shall not be construed to be a modification of this Agreement. 12.4 Budget and CDBG Eligibility Activily Title Revisions. Revisions to the Budget shall be made in writing, and approved in writing by the City; however, such revisions shall not necessitate an amendment hereto unless the amount of the Loan to be granted hereunder is changed, or unless otherwise required by the City. A revision to the CDBG eligibility activity titles under which this Agreement's objectives are classified shall not require an amendment hereto. 12.5 Disputes, In the event an unresolved dispute exists between the Parrot Jungle and the City, the City shall refer the issue, including the views of all interested parties and the recommendation of the City, to the City Manager, his designee, or such other official of the City who shall be authorized to exercise the authority of the City Manager in this regard ("City Manager") for determination. The City Manager will issue a determination within thirty (30) calendar days of receipt of a written request for resolution of the dispute and so advise the City and the Parrot Jungle. In the event additional time is necessary, the City Manager will notify the interested parties within the thirty (30) day period that additional time is necessary. The Parrot Jungle agrees that the City Manager's determination shall be final and binding on all parties, subject only to judicial review. -29- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. 12.6 Headings. The article and paragraph headings in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. 12.7 Proceedings. The Agreement shall be construed in accordance with the laws of the State of Florida and any proceedings arising between the parties in any manner pertaining or relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade County, Florida. 12.8 Notices and Contact. All notices under this Agreement shall be in writing and addressed as follows: To City: City of Miami Department of Community Development 444 Southwest 2nd Avenue, 2nd Floor Miami, Florida 33130 Attn: George Mensah, Director With Copy To: Office of the City Attorney 444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130 To Parrot Jungle: Parrot Jungle and Gardens of Watson Island, Inc. 1111 Parrot Jungle Trail Miami, Florida 33132 Attn: Bern Levine, President Except as otherwise provided in this Agreement, notice shall be deemed given upon hand delivery or five (5) business days after depositing the same with the U.S. Postal Service. The address or designated representative of the parties may be changed by notice given in accordance with this section. 12.9 Conflicts with Applicable Laws. If any provision of this Agreement conflicts with any applicable law or regulation, only the conflicting provision shall be deemed by the parties hereto to be modified, or to be deleted if modification is inappropriate, to cause the -30- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. provision to be consistent with the law or regulation. However, the obligations under this Agreement, as modified, shall continue and all other provisions of this Agreement shall remain in full force and effect. 12.10 Entire Agreement. This Agreement and its Exhibits described as follows contain all the terms and conditions of the Agreement between the parties: Exhibit A Work Program/Project Schedule Exhibit B (Intentionally Deleted.) Exhibit C (Intentionally Deleted.) Exhibit D Promissory Note Exhibit E (Intentionally Deleted.) Exhibit F (Intentionally Deleted.) Exhibit G (Intentionally Deleted.) Exhibit H (Intentionally Deleted) Exhibit I Insurance Requirements 12.11 Waiver of Jury Trial. Neither the Parrot Jungle, nor any other person liable for the responsibilities, obligations, services and representations herein, nor any assignee, successor, heir or personal representative of the Parrot Jungle, or any other person or entity shall seek a jury trial in any lawsuit, proceeding, counterclaim or any other litigation procedure based upon or arising out of this Agreement, or the dealings or the relationship between or among such persons or entities, or any of them. Neither the Parrot Jungle, nor any other person or entity will seek to consolidate any such action in which a jury trial has been waived with any other action. The provisions of this paragraph have been fully discussed by the parties hereto, and the provisions hereof shall be subject to no exceptions. Neither party to this Agreement has in any manner agreed with or represented to any other party that the provisions of this paragraph will not be fully enforced in all instances. -31- THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP. ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized, the day and year first above written. ATTEST: Print Name: CORPORATE SEAL ATTEST: By: Priscilla A. Thompson City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: By: LeeAnn Brehm Risk Management Date Parrot Jungle and Gardens of Watson Island, Inc., a Florida for-profit corporation L-02 Bern Levine, President CITY OF MIAMI, a municipal Corporation of the State of Florida By: Pedro G. Hernandez, P.E. City Manager APPROVED AS TO FORM AND CORRECTNESS: By: Date Julie 0. Bru City Attorney -32- Date Date SUBSTITUTED DEVELOPMENT BLOCK GRANT PROGRAM LOAN AGREEMENT --IAL ECONOMIC DEVELOPMENT This Agreement is dated as f the day of 2009, by and between the City of Miami, a munic al corporation of the Stats of Florida (hereinafter the "City") and Parrot Jungle and G profit corporation (hereinafter the FUNDING SOURCE: AMOUNT: APPROVAL: Approved by the City of is 2009 PROJECT NAME: Jungle Island at Watson Island PROJECT TYPE: Special Economic Development — TERM: PROJECT NUMBER: PROJECT ADDRESS: a Florida for - - . Formatted: underline EXHIBITS A SUBSTITUTED Exit A Work Program Exhib B (Intentionally Deleted.) Exhibit (Intentionally Deleted.) Exhibit D Promissory Note Exhibit E (Intentionally Deleted.) Exhibit F (Intentionally Deleted.) Exhibit G (Intentionally Deleted.) Exhibit H (Intentionally Deleted) Exhibit I Insurance Requirements WHEREAS, the City of Miami (' iry") entered into a Lease and Development Agreement with Parrot Jungle on September 2,\nn initial 45 year term with a 15 year option period; and WHEREAS, on January 9, 2001 Miamity ("County") made a Section 108 loan in an amount of $25 million dollars for the and operation of Parrot Jungle and Gardens of Watson Island Project; and WHEREAS, on July 10, 2007 through l agree ent as part of the Global Agreement between the City of Miami and Mounty, the ity assumed an 80% interest and obligation in the Section 108 loan mmi-Dade Count thereby putting at risk the City's annual CDBG allocations: WHEREAS, Parrot Jungle has created more than 400 jobs in the City due to is funding which will be lost without an intervention by the City; and WHEREAS, on the City of Miami Commission approved an allocation of ' y of Miami General Funds ("General Funds") in the form of a loan in the amount of 5800,000.00 to pay for property taxes and maintain employment opportunities in the City of Miami; and WHEREAS, the City and the Subrecipient intend and agree that the allocation of General Funds be subject to the terms and conditions of this Agreement. -2- SUBSTITUTED N THEREFORE, in consideration of the mutual covenants and obligations herein contained, and bject to the terms and conditions hereinafter stated, the parties hereto understand and agree as ARTICLE I DEFINITIONS The City and the Subr%ipient hereby agree that the capitalized terms used herein shall have the meanings set forth beless the context requires otherwise: 1.1 CDBG Program: The program created by Title I of the Housing and ommunity Development Act of 1974, as amended. 1.2 CDBG Requirements: Th equirements contained in 24 C.F.R. Part 570 and other requirements imposed by the City. 1.3 Funds, or, the Loan The loanthe amount of 5800,000.00 from the City to the S recipient for Project. 1.4 Contract Records: Any and all books, records, documents, information, data, papers\t's letters, materials, electronic storage da media, whether written, printed, computerizlectronic or electrical, however collected erved which is or was produced, developm 'ntained, completed, received or compilera the direction of the Subrecipient or subco tractor of the Subrecipient in caout a duties and obligations required terms oft 's Agreement,including, but not lto, financi books andrecords, ledgers, gs, maps, phlets,designs, electronic , computer dri s anddiskettes or surveys. 1.5 ro'ect: Maintain at least 400n Parrot Jungle. 1.7 Loan Documents, This Agreement and all other documents that may now or hereafter evidence or secure the General Funds, together with other documents executed in connection therewith or presented by the Subrecipient to the City in connection therewith or herewith, and all amendments, extensions and renewals to any of the foregoing. -3- SUBSTITUTED 1.8 1.9 Term: 1.10 Effective Date: 1.11 Low- and -Moderate- Income Person: 1.12 Job Creation/Retention 1.13 HUD: The CDBG Requirements and all federal laws and regulations pertaining thereto which are described or referenced in 24 C.F.R. Part 570; any requirements imposed by the City and all local, state and federal requirements relating thereto and/or pertaining to the performance of the Project under the CDBG Program. Although funded with General Funds, the Project shall also comply with CDBG requirements for Special Economic Development project. The period commencing 90 days from the Effective Date and ending 48 months later (as defined in Section 2.3 hereof), unless sooner terminated by the on which the City Clerk affixes an to this Agreement. A membe f a low- or moderate -income family whose into is within specific income levels set forth by U.S. \atast Permanent jobs1%of which (computed on a full time basimade available or held by low and modera persons. The U.S. Department Development ARTICLE II Housing and Urban Upon satisfaction of all conditions set forth herein, the City shall disburse the CDBG Funds to the Subrecipient for the purposes herein set forth. 2.1 Use of Funds. The General Funds may be used for the payment of property taxes in order to at least maintain 400 jobs created in the City of Miami by Parrot Jungle and in accordance with the Budget attached hereto and incorporated herein as Exhibit "C". 2.2 Disbursement. The disbursement of finds will be subject to: (i) Parrot Jungle providing to the satisfaction of the City Manager a firm commitment in an amount greater -4- SUBSTITUTED than $1,449,\havebeen f that all outstanding property taxes owed by Parrot Jungle has been paid; (ii) a 4erral of the minimum rent paid to the City of Miami on the Parrot Jungle property by tity Commission; (iii) providing access to the City of Miami to conduct analysis of thmo el to improve the survivability of the business thereby mitigating the City's expos The S.may not r uest disbursement of funds pursuant to this Agreement until all the loan cve been met. 2.3 Repayment of General Funds. The Loan will be amortized at the rate of zero percent (0) for a period of forty eight (48) mo\withay payment of $16,667. Loan will become fully payable if the Subrecipient e 400 FTE jobs at the Parrot Jungle. ARTIDISBURSEMENTS 3.1 CONDITIONS OF DISBURSEMENT OF CDBG FUNDS. The City shall not be obligated to disburse the CDBG Funds unle and until the City has received the following: 3.1.1 Comorate Documents. (a) The certificate of incorporation or partnership agreemen or their equivalent, as appropriate, and a good standing certificat for the Subrecipient, certified by the appropriate governmental authority. (b) Bylaws, resolutions, and incumbency certificates, or, in the case d� a partnership, their equivalent, for the Subrecipient, certified by tl� Corporate Secretary or other authorized signer, authorizing the consummation of the transactions contemplated hereby, all satisfactory to the City. (c) Evidence satisfactory to the City that the Subrecipient is qualified to receive funds under the CDBG Program in accordance with the CDBG Requirements. -5- SUBSTITUTED 3.1.2\ Insurance Policies. e Subrecipient shall obtain and furnish evidence of any insurance coverage the Ci may require relating the Project and/or Property, including but not limited to that ribed on Exhibit "I" hereto. All such policies shall provide the City with mandat written notice of cancellation or material change from the insurer not less than t irty (30) days prior to any such cancellation or material change, and all such policie shall be written by insurance companies satisfactory to the City and shall insure th City as an additional insured, with a loss payable clause in favor of the City. 3.1.3 Operative Documen A. This Agreement, the Note and all other Loan Documents, duly and lawfully a cuted by the Subrecipient and in recordable form as appropriate. 3.1.4 List of Subcontractors. A li of all of the Subrecipient's subcontractors as of the date of execution of this Aement, and copies of all contracts in excess of $10,000 for the performance of rvices or the supply of materials in connection with the Project, to be funded purstXnt to this Agreement. 3.1.5 Compliance with CDBG Require All other documents required by the CDBG Program evidencing compliance .th CDBG Requirements. 3.1.6 First Source Hiring Agreement. (intention all eleted). p 3.1.7 Audit Reort. The Subrecipient shall submit the City audit reports as are required herein. 3.1.8 All other documents reasonably required by the City. ARTICLE IV CDBG REQUIREMENTS The Subrecipient shall comply with the following CDBG Requirements: 4.1 GENERAL. 4.1.1 The Subrecipient shall maintain current documentation that its ac 'vities qualify under the CDBG Requirements, 4.1.2 The Subrecipient shall ensure and maintain documentation tha conclusively demonstrates that each activity assisted in whole or in part with City Funds is an activity which benefits Low and Moderate Income Persons as defined in 24 C.F.R. Part 570. 4.1.3 The Subrecipient shall comply with all applicable provisions of 24 C.F.R. Part 570 and shall carry out each Project activity in compliance with all applicable federal laws and regulations. -6- SUBSTITUTED 4.1.4 The Subrecipient shall cooperate with the City in informing the appropriate citizen participation structures, including the appropriate area \.Vn mittees, of the activities of the Subrecipient in adhering to the isions of this Agreement. Representatives of the Subrecipient shall d meetings of the appropriate committees and citizen participation 'tures upon the request of the citizen participation officers or the City. 4.1.5 The lubrecipient shall, to the greatest extent possible, give Low and ModeraN Income residents of the service community opportunities for training aft4 employment. 4.1.6 The Subrecip nt shall comply with all applicable displacement and relocation requi\given 4.2 PERSONAL PROPERTY. all non -expendable personal property purchased in whole or in part with fue Subrecipient pursuant to the terms of this Agreement shall vest in the City. 4.3 DISPOSITION. The Subrecipient shall obtain th prior the disposition of real or personal property purchased in who Subrecipient or its subcontractors pursuant to the terms of this all such property in accordance with instructions from the City the return of all such property to the City. 4.4 SUBCONTRACTS AND ASSIGNMENTS. written approval of the City for or in part with funds given to the 4.4.1 The Subrecipient shall ensure that all subcontracts and and shall dispose of instructions may require (a) Identify the full, correct, and legal name of all parties; (b) Describe the activities to be performed; (c) Present a complete and accurate breakdown of its price component; (d) Incorporate a provision requiring compliance with all applicable regulatory and other requirements of this Agreement, including but not limited to the record-keeping and audit requirements hereof, the City's Minority Procurement Ordinance, and with any other conditions and/or approvals that the City may deem necessary. The requirements of this paragraph apply to subcontracts and assignments in which parties are -7- SUBSTITUTED engaged to carry out any eligible substantive programmatic service, as may be defined by the City, set forth in this Agreement. The City shall in its sole and absolute discretion determine when services are eligible bstantive programmatic services and subject to the audit and record- kev,ping requirements described in this Agreement; and (e) Inco!!rate the language of the Certificate Regarding Lobbying executed in conn tion herewith. 4.4.2 The Subrecipient s 11 incorporate in all consultant and other subcontracts the following provision: "Parrot Jungle and Gard s of Watson Island, Inc., is not responsible for any insurance or other fringe begefits, e.g., social security, income tax withholding, retirement or leave benefits, theConsultant or employees of the Consultant, that are normally available to d ct employees of Parrot Jungle and Gardens of Watson Island, Inc.,. The Consul t assumes full responsibility for the provision of all insurance and fringe benefiV for himself/herself/itself and employees retained by the Consultant in carryin out the Work Program provided in this subcontract." 4A.3 The Subrecipient shall be responsible for mo 'toring the contractual performance of all subcontracts. 4.4.4 The Subrecipient shall submit to the City for its view and confirmation any subcontract engaging any party who agrees to out any substantive programmatic activities, to ensure its compliance with a requirements of this Agreement. The City's review and confirmation shall b obtained prior to the release of any funds for the Subrecipient's subcontractor( s). 4.4.5 The Subrecipient shall receive written approval from the Ci prior to either assigning or transferring any obligations or responsibility se forth in this Agreement. 4.4.6 Approval by the City of any subcontract or assignment shall not u er any circumstances be deemed to be the City's agreement to incur any obligat ns in excess of the total dollar amount agreed upon in this Agreement. 4.4.7 The Subrecipient and its subcontractors shall comply with the Davis -Bacon Act, i applicable, the Copeland Anti -Kick Back Act, the Contract Work Hours and Safety -Standards Act, the Lead -Based Paint Poisoning Prevention Act, the Residential Lead Based Paint Hazard Reduction Act of 1992 (and implementing regulations at 24 C.F.R. Pari 35 and any other applicable laws, ordinances and regulations. 4.4.8 The Subrecipient shall submit to the City for written prior approval all proposed Solicitation Notices, Invitations for Bids, and Requests for Proposals. 5.1 4.5 SUBSTITUTED 4.5.1 The Subrecipient shall submit, as required, the following: 4.5.1.1Progress Reports. The Subrecipient shall submit status reports and projected completion dates to describe the progress made by the Subrecipient in achieving each of the objectives identified in hibit "A". 4.5.1.2 Invehtory Re ort. The Subrecipient shall report all real property and non -expendable personal property as specified in Paragrap 4.2 and 4.3 hereof. Such report shall be submitted as requested b the City. 4.5.13 Affirmative Ac ' n Plan. The Subrecipient shall report to the City such informatiollrelative to the equality of employment opportunities whene er requested by the City. 4.5.1.4 Affirmative Marketingan and Report. (Intentionally Deleted.) 4.5.1.5 of all of the Subrecipient's List of Subcontractors.\Subrecipie subcontractors, and copientracts in excess of $10,000 for the performance of sethe supply of materials in connection with the Proje 4.5.1.6 Employment Report. Tcipie t shall report to the City, every six monthsmber f jobs that were maintained during the sixriod in a ordance with the Work Plan and as otherwred by this greement and the other Loan Document 4.5.1.7 All such other reports as may be requested by the 4.6.2 Federal. State and County Laws and Regulations. 4.6.2.1 The Subrecipient shall comply with applicable uni"N administrative requirements as described in 24 C.F.R. §570.502, copy of which is attached as Exhibit G. 4.6.2.2 The Subrecipient shall carry out each activity in compliance with all Federal laws, regulations and requirements described in subpart K of 24 C.F.R. Part 570, except that the Subrecipient does not assume: (1) the City's environmental responsibilities described at Section 570.604 and, (2) the City's responsibility for initiating the review process under the provisions of 24 C.F.R. Part 52. -9- SUBSTITUTED The Subrecipient shall comply with all applicable federal laws, regulations and requirements including, but not limited to: 24 C.F.R. Part 570; 24 C.F.R. Part 85, Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of handicap; Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on he basisof race, color, or national origin; the Age Discrimination t of 1975, as amended, which prohibits discrimination on the as of age; Title VIII of the Civil Rights Act of 1968, as amen ed; Executive Order 11246 which requires equal employ ent opportunity. 4.6.3 Audits. 4.6.3.1 The Subrecipie shall submit to the City an audit conducted by an independent cert[ ed public accountant or firm of independent certified public a\fiscal tants in accordance with the general accepted auditing sds set forth in the Government Auditing Standards issued bomptroller General of the United States of America and thi 'ons of the Office of Management and Budget Circular N13 ("Audits of Institutions of Higher Education and otheprofi rganizations"), including a report on compliance wits and ations based on an audit of financial statementformed in accordance with Government Auditing Standarda report internal control structure required by OMB ar No. A-133. Two copies of such audit must be delivered tity no later than ix (6) months following the end of each Subent fiscal year. 4.6.3.2 The Subrecipient shall include in all subcontrallkto carry out any eligible substantive programmatic services, as stWh services are described in this Agreement and defined by the Ci each of the record keeping and audit requirements detailed in this greement. The City shall in its sole discretion determine when s Ke are eligible substantive programmatic services and subject toudit and recordkeeping requirements described above_ 4.7 RECORDS. The Subrecipient shall establish and maintain sufficient records to enalN the City to determine whether the Subrecipient has met the requirements of the Program. The Subrecipient shall maintain all Contract Records in accordance with generally accepted accounting principles, procedures, and practices, which records shall sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by the City pursuant to the terms of this Agreement. -10- SUBSTITUTED At a m imum, the following records shall be maintained by the Subrecipient: 4.7.1 R rds providing a full description of each activity assisted (or being assisted) with G eral Funds, including its location (if the activity has a geographical locus), the mount of General Funds budgeted, obligated and expended for the activity, and th pecific provision in 24 C.F.R. Subpart C of the CDBG Program regulations under ich the activity is eligible. 4.7.2 Records demonstrating at each activity undertaken meets one of the criteria set forth in 24 C.F.R.§570.208 f the CDBG Program regulations. Where information on income by family size is uired, the Subrecipient may substitute evidence establishing that the person assis d qualified under another program having income qualification criteria at least as strictive as that used in the definitions of "low and moderate income person" and "log and moderate income household" as set forth in 24 C.F.R.§570.3; or the Subreci i nt may substitute a copy of a verifiable certification from the assisted person that is or her family income does not exceed the applicable income limit established in accordance with 24 C.F.R.§570.3; or the Subrecipient may substitute a notice t the assisted person is a referral from any governmental agency that determines p sons to be "low and moderate income persons" based upon HUD's criteria and agre to maintain documentation supporting those determinations. Such records shall in Jude the specific information required pursuant to 24 C.F.R.§570.506(b). 4.7.3 Records containing data on the extent to which each racial and ethnic group a single -headed households (by gender of household head) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with CDBG Funds. 4.8 SUBSTITUTED 4.7.4 Documentation of actions undertaken to meet the requirements of 24 C. R -§570.607(b) which implements Section 3 of the Housing Development Act of 19 , as amended (12 U.S.C. 1701U) relative to the hiring and training of low and mode to income persons and the use of local businesses. 4.7.5 Data indicati the racialfethnic character of each business entity receiving a contract or subcon act of $25,000 or more paid, or to be paid, with CDBG Funds, and such additiona information as is required pursuant to 24 C.F.R. §570.506(g)(6). 4.7.9 Financial records in accordanc with the applicable requirements listed in 24 CFR 570.502. 4.7.10 Records required to be maintained in ordance with other applicable laws and regulations set forth in Subpart K of 24 C. . 4.8.1 The City shall have the authority to review the Su ecipient's records, including Project and programmatic records and books of accoun throughout the Retention Period (as hereinafter defined). All books of acc nt and supporting documentation shall be kept by the Subrecipient at least until th expiration of the Retention Period. The Subrecipient shall maintain records sufficient to eet the requirements of 24 C.F.R. Part 570. All records and reports required herei hall be retained and made accessible as provided thereunder. The Subrecipient shall ensure that the Contract Records shall be at all times subject to and available for full access and review, inspection and audit by the City, federal personnel and any other personnel duly authorized by the City. -12- SUBSTITUTED 4.8.2 The Subrecipient shall include in all the City approved subcontracts used to n ea subcontractors to carry out any eligible substantive Project or activities, as such activities are described in this Agreement and defined by City, each of the record-keeping and audit requirements detailed in this Agreement. e City shall in its sole discretion determine when services are eligible substantive ogrammatic activities and subject to the audit and record- keeping requirements desgibed in this Agreement. ARTICLE V The Subrecipient represents and warrants to\underhe ws: 5.1 Organization and Existence. The Slorida for-profit corporation, duly organized, validly existing and in good stands of the State of Florida, and has full power and authority to conduct its busly conducted, to receive the General Funds and to own the Property. The Subrecipient has full power and authority to perform the pro\and and of its agreements and undertakings with the City and to perform the transactiod hereby, and such execution and performance have been duly authorized by allporate or other approvals and actions. 5.2 Correctness of Documents. The cost estimates, Budget, a] therdocuments furnished to the City in accordance with the Program, thisnd/or t other City Documents, are true and correct in all material respects and accurately set forth the facts contained therein and neither misstate any material fact nor, separately or in the aggregate, fail to state any material fact necessary to make the statements made therein not misleading. 5.3 Absence of Proceedings. Action and Judgments. There are no conditions, circumstances, events, agreements, documents, instruments, restrictions, actions, suits or -13- SUBSTITUTED proceedings\areno hreatened against or affecting the Subrecipient, the Project or the Property whersely affect the Subrecipient's ability to comply with the CDBG Program, pegations hereunder, or which would constitute an Event of Default hereunder orr Documents regardless of the giving of notice or the passage of time or both. Tu tanding or unpaid judgments or arbitration awards against the Subrecipient. 5.4 Non -Default. TheSu ecipient is not in default or violation with respect to any Legal Requirement, nor is it in defau under or in material breach of any . instrument or agreement to which it is a party or by whic it otherwise may be bound. The execution and delivery of this Agreement and the other Doc ents, the consummation of the transactions contemplated hereby, and development of the Proj as contemplated hereby and by the other Documents: (i) do not and will not conflict with or result in violation of any Legal Requirement or in the breach or default under any indenture, contract, age ent or other instrument to which the Subrecipient is a party or by which it may be bound, and (ii) h ve been duly authorized by all necessary actions and approvals, whether corporate or otherwise. 5.5 Valid Obligations. This Agreement and all of the o r Documents, when executed and delivered, shall constitute the duly authorized, legal, valid and ' ding obligations of the Subrecipient and will be enforceable in accordance with their respective 5.6 Marketable Title. (Intentionally deleted). 5.7 Compliance. The completion and use of the Project in accordance with the Work Program will comply fully with all Legal Requirements, and any other condition, gr t, easement, covenant, or restriction, whether recorded or not. All necessary approvals, permits and licenses for the performance of the Project have been unconditionally obtained and are in full force and effect. -14- SUBSTITUTED 5.8 Encroachments. (Intentionally Deleted.) 5.9 rk Pro cts. am. The Work Program is complete in all respe 5.10 Pend Assessments. The Subrecipient has no knowledge of any pending or proposed government\Laws would impair the value of the Property or result in a special assessment against the 5.11 Fraud. the Subrecipient has occurred in the qualification of the Project, the Subrecipioperty under the CDBG Program, the negotiation of this Agreement and the othume , nor in the transactions contemplated hereby. 5.16 otnliws and lations. The Subrecipient will comply at all times with all Legal Requirements. The Subre\the omply at all times with the CDBG Requirements affecting the ownership, use,itation of the Property and the performance of the Project. 5.18 Reaffirmation. Each of the reprearranties set forth in this Article shall be true at all times, and the Subrecipientof ea draw of the CDBG Funds hereunder shall be deemed to be a reaffu-matithe repre ntations and warranties given in this Agreement. ARTICLE VI SUBRECIPIENT'S OBLIGATIONS 6.1 Work Program. The Subrecipient shall perform the Work Program set forth herein and on Exhibit "A" attached, in a manner that is lawful, satisfactory to the City, d in accordance with the written policies, procedures, and requirements prescribed by HUD and/or this Agreement or otherwise by the City. The City will monitor the 400 full time equivalent jobs to be maintained under this Agreement for compliance with the contract requirements until the expiration of this Agreement. -15- SUBSTITUTED In the vent that start-up time for the Work Program is required, or in the event of the occurrence of any elays in the activities thereunder, the Subrecipient shall immediately notify the City in writing of I pertinent details, including, but no limited to, when the Work Program shall begin and/or continu Any activities funded through or as a result of this Agreement shat I not result in the displacement f employed workers, impair existing agreements for services or activities, or result in the substitut n of funds allocated under this Agreement for other funds in connection with work which would ha a been performed in the absence of this Agreement. 6.2 Reporting Obligations, Th Subrecipient shall submit to the City all reports as described in Article 4 hereof, and all other re its that the City may reasonably require, in such form, manner, and frequency as the City may re nably require to monitor the progress of the Project and the Subrecipient's performance and com 'ance with this Agreement and all Legal Requirements, 6.3 Retention of Records. The Subrecipient shall r in all Contract Records for five (5) years after expiration of the term of the Agreement (herein re ed to as 'Retention Period") subject to the limitations set forth below: (a) If the City or the Subrecipient has received or gi\pendinifigation, any kind indicating any threatened or pending litigation, claim or audit arisactivities relating to the Project or the Work Program or under the terms ent the Retention Period shall be extended until such time as the threatenitigation,claim or audit is, in the sole and absolute discretion of the Cityete and finally resolved. (b) The Subrecipient shall allow the City or any person authorized by the City full access to and the right to examine any of the Contract Records during the Retention Period. -16- SUBSTITUTED (c) The Subrecipient shall notify the City in writing, both during the pendency of th' Agreement and after its expiration termination, as part of the final closeout procedur of the address where all Contract Records will be retained. (d) he Subrecipient shall obtain the prior written consent of the City to dispose of any Co tract Records within one (1) year after the expiration of the Retention Period. 6.4 Provision of Recorb . All of the Contract Records are subject to the provisions of Chapter 119, Florida Statutes, com only referred to as the "Public Records Law". The Subrecipient shall provide to the City, Contract Records shall become the pry request, all Contract Records. The requested f the City without restriction, reservation, or limitation on their use and shall be made available the Subrecipient at any time upon request by the City. The City shall have the unlimited right to I books, articles, or other copyrightable materials developed in the performance of this Agreement, i luding, but not limited to, the right of royalty -free, non-exclusive, and irrevocable license to repro cc, publish, or otherwise use, and to authorize others to use, the Contract Records for public If the Subrecipient receives funds from, or is under regulalpry control of, other governmental agencies and those agencies issue monitoring reports, regulator examinations, or other similar reports, the Subrecipient shall provide a copy of each such report an y follow-up communications and reports to the City immediately upon such issuance unless such isclosure is a violation of those agencies' rules. 6.5 Prior Approval. The Subrecipient shall obtain the City's prior written appro I prior to undertaking any of the following: -17- SUBSTITUTED \chanin sale, assignment, pledge, transfer, hypothecation or other eposition of any proprietary or beneficial interest in the Subrecipient or aperating control of the Subrecipient. disposition of any real property or any non -expendable personal povided in this Agreement. (c) The use Program Income not specifically listed in the approved Budget. (d) (Intentionall leted.) (e) The disposal of a Contract Records. 6.6 Monitoring. The Subrecipie shall permit the City and other persons duly authorized by the City to inspect all Contract ecords, facilities, goods, and activities of the Subrecipient that are in any way connected to the ac 'vities undertaken pursuant to the terms of this Agreement, and/or to interview any clients, employ s, subcontractors, or assignees of the Subrecipient. Following such inspection or interviews, the Ci will deliver to the Subrecipient a report of its findings. The Subrecipient will rectify all deficienci cited by the City within the period of time specified in the report, or provide the City with a reaso ble justification for not correcting the deficiencies. The City will determine, in its sole and absolut discretion, whether or not the Subrecipient's justification is acceptable. 6.7 Conflict of Interest. A. The Subrecipient is aware of the conflict of interest laws of the City o iami (Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Flolla (Code of Miami -Dade County, Florida, Section 2-11.1), and of the State of Florida (as set forth in Florida Statutes), and with the CDBG Program conflict of interest rules (24 C.F.R.§92.356), and agrees that it will fully comply in all respects with the terms thereof and any future amendments. -18- SUBSTITUTED B. a Subrecipient covenants that no person or entity under its employ, presently exercising any fun ions or responsibilities in connection with this Agreement, has any personal financial interests, dire or indirect, with the City. The Subrecipient further covenants that, in the performance of this Ag ement, no person or entity having such conflicting interest shall be utilized in respect to the Work rogram or services provided hereunder. Any such conflict of interest(s) on the part of the Subreci 'ent, its employees or associated persons or entities must be disclosed to the City. C. The Subrecipient shall disc a any possible conflicts of interest or apparent improprieties of any party under or in connects with the Legal Requirements, including the standards for procurement. D. The Subrecipient shall make any such 'sclosure to the City in writing and immediately upon the Subrecipient's discovery of such ossible conflict. The City's determination regarding the possible conflict of interest shall be b ing on all parties. E. No employee, agent, consultant, elected official or app 'nted official of the City, exercising any functions or responsibilities in connection with the City's BG Program or this Agreement, or who is in a position to participate in the decision-making proc s or gain inside information regarding CDBG-assisted activities, has any personal financial ince t, direct or indirect, in this Agreement, the proceeds hereunder, the Project or the Subrecipient, 'ther for themselves or for those with whom they have family or business ties, during their tenure o for one year thereafter. 6.8 Related Parties. The Subrecipient shall report to the City the name, purpose for and any other relevant information in connection with any related -party transaction. The term "related party transaction" includes, but is not limited to, a transaction or relationship between the Subrecipient and a for-profit or nonprofit subsidiary or affiliate organization, an organization -19- SUBSTITUTED with an ov\inartdrd of directors, and an organization for which the Subrecipient is responsible memberships. The Subrecipient shall report this information to the City upon ftionship, or if already formed, shall report such relationship prior to or simultaneouecution of this Agreement. Any supplemental information shall be promptly reCit o later than in the next required Progress Report, as described above. 6.9 The Subrecipient shall make a positive effort to procure supplies, a\opp construction rehabilitation services, and/or other services to fulfill this Agreement frty and women owned businesses, and to provide these sources the maximum feasunity to compete for subcontracts to be performed pursuant to this Agreement. To the maximu\notithe ble, these businesses shall be located in or owned by residents of the community deas designated by the City. 6.10 Additional Funding. The Subrecipient se City of any additional funding received for any activity described in this Agnotification shall be in writing and received by the City within thirty (30) daysipien notification by the funding source. 6.11 Reversion of Assets. The Subrecipient shall return to the City upon th\expiirationor termination of this Agreement any General Funds on hand, any accountattributable to the CDBG Funds, and any overpayments due to unearned fun disallowed pursuant to the terms of this Agreement that were disbursed to the Subrecipient by the City. Any funds not earned by the Subrecipient prior to the expiration or termination of this Agreement shall be retained by the City. -20- SUBSTITUTED 6.12\ Repayment of Funds Procedures. 1f for any reason the Project fails to comply with the require ents of 24 C.F.R. Part 570, the Subrecipient shall repay to the City all funds received by the Sub ipient pursuant to this Agreement. 6.13 Affirmati Marketln . (Intentionally Deleted.) 6.14 Transfer of Pr e Ownership to the City. (Intentionally Deleted) 6.15 Section 3 Clause. The Subrecipient shall comply with the requirements of Section 3 of the Housing and Urban evelopment Act of 1968, as amended (12 U.S.C. 1701 u): (A) The work to be performed under this contract is subject to the requirements o ection 3 of the Housing and Urban Development Act of 1968, as amen , 12 U.S.C. 1701 u (Section 3.) The purpose of Section 3 is to sure that employment and other economic opportunities generate by HUD assistance or HUD -assisted projects covered by Section 3, s 11 to the greatest extent feasible, be directed to low income persons, icularly persons who are recipients of HUD assistance for housing. (B) The parties to this contract agree comply with HUD's regulations in 24 C.F.R. Pari 135, which impleme Section 3. As evidenced by their execution of this contract, the parties o this contract certify that they are under no contractual or other impe ent that would prevent them from complying with the Part 135 regulati s. (C) The contractor agrees to send to each abor organization or representative of workers with which the ton ctor has a collective bargaining agreement or other understanding, if a notice advising the labor organization or worker's representative o the contractor's commitments under this Section 3 clause, and will po copies of the notice in conspicuous places at the work site where bo employees and applicants for training and employment positions c see the notice. The notice shall describe the Section 3 preference, hall set forth minimum number and job titles subject to hire, availab 'ty of apprenticeship and training positions, the qualifications for each, d the name and location of the person(s) taking applications for each f the positions; and the anticipated date the work shall begin. (D) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135. _21_ SUBSTITUTED ;F) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. Part 135 require ployment opportunities to be directed, were not filled to circumvent th ontractor's obligations under 24 C.F.R. Part 135. (F) Nonco pliance with HUD's regulations in 24 C.F.R. Part 135 may result in sanctions, termination of this contract for default, and debarment r suspension from future HUD assisted contracts. (G) With respect t work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self - Determination an ducation Assistance Act (25 U.S.C. 450e) also applies to the work be performed under this contract. Section 7(b) requires that to the eatest extent feasible (i) preference and opportunities for trainin and employment shall be given to Indians, and (ii) preference in the a and of contracts and subcontracts shall be given to Indian organizations d Indian -owned Economic Enterprises. Parties to this contract that ar ubject to the provisions of Section 3 and Section 7(b) agree to corn with Section 3 to the maximum extent feasible, but not in derogatio of compliance with Section 7(b). 6.16 Sif a e Acknowledgement, Publicity. (Intentionally Deleted) 6.17 Costs Incurred By the City. (Intentionally Deleted) 6.18 Affirmative Action. The Subrecipient shall not discrimination the basis of race, color, national origin, sex, religion, age, sexual orientation, marital or family status or handicap/disability in connection with its performance under this Agreement. A and discrimination against minor dependents are also not permitted. 6.19 (IntentionallyDeleted)Deleted.) 6.20 Compliance Requirements. The Subrecipient shall comply at all times with applicable CDBG Requirements and all other Legal Requirements. The Subrecipient shall at any time and from time to time upon the request of the City, at its sole cost and expense, execute, acknowledge and deliver such further notices and other documents and perform such other acts as may, in the opinion of the City, be necessary, -22- SUBSTITUTED desirable or oper to carry out more effectively the purposes of this Agreement and the other Loan Documents. 6.21 Comohance with Safety Precautions. The Subrecipient shall allow City inspectors, agents or repr entatives the ability to monitor its compliance with safety precautions as required by federal, state o ocal laws, rules, regulations and ordinances. By performing these inspections the City, its agents or presentatives are not assuming any liability by virtue of such laws, rules, regulations and ordinance The Subrecipient shall have no recourse against the City, its agents, or representatives for the occu nce, non-occurrence or result of such inspection(s). Simultaneously with the submission o 'ts first draw request to the City, the Subrecipient shall contact the City's Risk Management Depa ent Safety Unit in writing to coordinate such ivayc�,uuuka). The Subrecipient shall affirmatively comply all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of pro 'ding any work, labor or services funded by the City, including Titles I and II of the ADA (regar 'ng nondiscrimination on the basis of disability) and all applicable regulations, guidelines and s dards. Additionally, the Subrecipient shall take affirmative steps to ensure nondiscrimination i the employment of disabled persons. 6.22 Religious Organ izations/Constitutional Prohibition_. If the Subrecipient is or was created by a religious organization, the Subrecipi t agrees that all CDBG Funds disbursed under this Agreement shall be subject to the condi 'ons, restrictions, and limitations of the CDBG Program. ARTICLE VTI DEFAULT 7.1 The happening of any one or more of the following events shall constitute an Event of Default: -23- SUBSTITUTED (a) If any term, condition or representation contained in this Agreement or any of t other Documents is untrue, substantially inaccurate or incomplete, or, if there is a material isrepresentation of fact or fraud contained in any document(s) submitted in support of this A eement. (c) The bstantial discontinuance of the performance of the Project for a period of fourteen (14) ays which discontinuance is, in the sole determination of the City, without satisfactory ca e. (d) The sale, assignor nt, pledge, transfer, hypothecation or other disposition of any proprietary or beneficial inte st in the Subrecipient, or any change in operating control of the Subrecipient, without prior itten approval as required by this Agreement. (e) In the event that the City det ines, in its sole and absolute discretion, that the Subrecipient has failed to comply prom tly with any requirement or notice of violation of law issued by or filed by the City or department of any governmental authority having jurisdiction over the Subrecipient. (f) Failure by the Subrecipient to materially mply with any tern or provision of this Agreement. (g) Any change in building or zoning requirements or the z ing classification of the Property, which, in the City's sole discretion, would materially int ere with the performance of the Project as contemplated herein. (h) In the event that the City determines, in its sole and absolute dis etion, that there exists an event of default under and pursuant to the terms of any of r agreement or obligation of any kind or nature whatsoever of the Subrecipient to the City, direct or contingent, whether now or hereafter due, existing, created or arising. (i) (Intentionally Deleted.) -24- SUBSTITUTED Q) In the event that the City determines, in its sole and absolute discretion, that there ex is an event of default under and pursuant to the terms of any of the other Loan Documents d the continuance of such event beyond the applicable cure period, if any. ARTICLE VIII REMEDIES 8.1 Upon the occu ence of any Event of Default, the City shall have the absolute right to refuse to disburse any un isbursed portion of the Loan. If an Event of Default shall continue uncured for a period of thi 30) consecutive days following written notice thereof to the Subrecipient (except for the events de ribed in Article VII (a), (h) and 0) above for which the aforementioned cure period shall not app ) the City shall have the absolute right, at its option and election and in its sole discretion to: (a) 5pecific Performance. Institute propriate proceedings to specifically enforce performance of the terms and conditions of is Agreement. (b) Recapture of Geneeral Funds. Demand at the Subrecipient reimburse the City, and the Subrecipient shall reimburse the City, for a General Funds disbursed to the Subrecipient pursuant to this Agreement. (c) Suspension. Take one or more of the actions pr ided in Article X hereof. (d) Termination. Terminate this Agreement as provided in Articl hereof. (e) Other Remedies. Exercise any other right, privilege or remedy a ilable to the City as may be provided by applicable law, in this Agreement or in any of the o er Documents. It is understood and agreed that the occurrence of an Event of Default under Article VII (a), (h) or Q) shall immediately entitle the City to exercise any of the above described remedies without the need to give the Subrecipient notice thereof nor the opportunity to cure. -25- SUBSTITUTED The \da medies of the City hereunder shall be cumulative and not mutually exclusive, amay resort to any one or more or all of said remedies without exclusion of any otherother than the City, whether the Subrecipient or a materialman, laborer, subcontractoshall have any interest in the General Funds withheldbecause of a default herehal of have any right to garnish or require or compel that payment thereof be ard the di barge or satisfaction of any claim or lien which any of them may have. LE IX ATION 9.1 Termination Because of Lack o unds. In the event the City does not receive from its funding source funds to finance this A ment, or in the event that the City's funding source de -obligates the funds allocated to finance thi Agreement, the City may terminate this Agreement upon not less than twenty-four (24) hours prio otice in writing to the Subrecipient. Said notice shall be delivered by certified mail, return receipt quested, or by in person delivery with proof of delivery. The City shall determine, in its sole and solute discretion, whether or not funds are available. 9.2 Termination for Breach. The City may terminate this Agr ment, in whole or in part upon the occurrence of an Event of Default, and the continuance of suc Event of Default beyond the applicable cure period, if any. 9.3 The City may terminate this Agreement in accordance with the provis as of 24 C.F.R. §85.44. 9.4 Upon the occurrence of an Event of Default and the expiration of any cure pen d (in those circumstances for which a cure period is otherwise provided in this Agreement), and unless the Subrecipient's breach is waived by the City in writing, the City may, by written notice to the Subrecipient, terminate this Agreement upon not less than twenty-four (24) hours prior -26- SUBSTITUTED written notice\bc shall be delivered by certified mail, return receipt requested, or by in person deliveof delivery. Waiver of breach of any provision of this Agreement shall not be a waiver of any other breach and shall not be construed to bea modification this Agreement. The provisions hereof are not intended to be, and shall not be, cit a City's right to legal or equitable remedies. ARTICLE X SUSPENSION 10.1 In the event the City det ines, in its sole and absolute discretion, that the Subrecipient has failed to materially comply 'th any term or provision of this Agreement, any of the other Loan Documents or any of the Le 1 Requirements, after the expiration of any applicable cure period the City may take one or more o the following actions: (a) temporarily withhold cash payments nding corrective action by the Subrecipient, (b) disallow all or part of the activity or action not in c mpliance, (c) wholly or partially suspend or terminate this Agreeme (d) take such other remedies as may be legally available, (e) withhold further/other CDBG awards to the Subrecipient. 10.2 The determinations and actions described in paragraph 10.1 above ay be applied to all or any part of the activities funded pursuant to this Agreement. 10.3 The City will notify the Subrecipient in writing of the type of action taken pursuant to this Article, by certified mail, return receipt requested, or by in person delivery w proof of delivery. The notification will include the reason(s) for such action, any conditions relating to the action, and the necessary corrective action(s). ARTICLE XI INDEMNIFICATION _27_ SUBSTITUTED Th\officeagents, ipient shall indemnify and hold the City and its past, present and future employeents harmless from any and all claims, liabilities, losses, and causes of action which mut of the actions, negligence, or omission, in whole or in part, of the Subrecipifice agents, employees, or assignees in the fulfillment of this Agreement. The Subrhall pay 1 claims and losses of any nature in connection therewith, and shall defend all the name o e City when applicable, and shall pay all costs and judgments which maereon. . 12.1 Enforcement Methods. As a tl� Program, the City may utilize any enforcement m 12.2 Renegotiation or Modification. A shall be valid only when in writing and signed by this Agreement if the City determines, in its sc and/or local governmental revisions of any ap decreases in budget allocations, make changes tc the final authority in determining whether or not federal. state and/or local eoverrunental revisit XII of enforcing compliance with the CDBG res it deems necessary. \Agreement f provisions of this Agreement reto. The parties agree to modify discretion, that federal, state, or r ulations, or increases or ent neces . The City shall be Agreement available due to plicable laws or gulations, or increases or decreases in budget allocations. 12.3 Right to Waive. The City may, for good and sufficient cause, as determi%ob the City in its sole and absolute discretion, waive provisions of this Agreement or seek to such waiver from an appropriate authority. Waiver requests from the Subrecipient shall be in writing. A waiver shall not be construed to be a modification of this Agreement. 12A Budget and CDBG Eligibility Activity Title Revisions. Revisions to the Budget shal l be made in writing, and approved in writing by the City; however, such revisions shall not _28_ SUBSTITUTED necessita an amendment hereto unless the amount of the Loan to be granted hereunder is changed, or un ss otherwise required by the City. A revision the CDSG eligibility activity titles under which this Agreement's objectives are classified shall not r uire an amendment hereto. 12.5 Disputes. In a event an unresolved dispute exists between the Subrecipient and the City, the City shall refer t issue, including the views of all interested parties and the recommendation of the City, to the Ry Manager, his designee, or such other official of the City who shall be authorized to exercise th authority of the City Manager in this regard ("City Manager") for determination. The City M ger will issue a determination within thirty (30) calendar days of receipt of a written request for olution of the dispute and so advise the City and the Subrecipient. In the event additional time is n essary, the City Manager will notify the interested parties within the thirty (30) day period tha additional time is necessary. The Subrecipient agrees that the City Manager's determination s I be final and binding on all parties, subject only to judicial review. 12.6 Headings. The article and paragraph headings in this A ement are inserted for convenience only and shall not affect in any way the meaning or in rpretation of this Agreement. 12.7 Proceedings. The Agreement shall be construed in accordance with a laws of the State of Florida and any proceedings arising between the parties in any manner pertai 'ng or relating to this Agreement shall, to the extent permitted by law, be held in Miami -Dade Coun , Florida. 12.8 Notices and Contact. All notices under this Agreement shall be in writing and addressed as follows: To City: City of Miami Department of Community Development -29- SUBSTITUTED 444 Southwest 2"d Avenue, 2"d Floor Miami, Florida 33130 Attn: George Mensah, Director With Copy T Office of the City Attorney 444 Southwest 2"d Avenue, Suite 945 Miami, Florida 33130 To Subrecipient: arrot Jungle and Gardens of Watson Island, Inc. 1 11 Parrot Jungle Trail Mi i, Florida 33132 Attn: ern Levine, President Except as otherwise provided in is Agreement, notice shall be deemed given upon hand delivery or five (5) business days after de icing the same with the U.S. Postal Service. The address or designated representative of the partie ay be changed by notice given in accordance with this section. 12.9 Conflicts with Applicable Laws. If any rovision of this Agreement conflicts with any applicable law or regulation, only the conflicting rovision shall be deemed by the parties hereto to be modified, or to be deleted if modification 's inappropriate, to cause the provision to be consistent with the law or regulation. However, a obligations under this Agreement, as modified, shall continue and all other provisions of this eement shall remain in full force and effect. 12.10 Entire Agreement. This Agreement and its Exhibits described as llows contain all the terms and conditions of the Agreement between the parties: Exhibit A Work Program/Project Schedule Exhibit B (Intentionally Deleted.) Exhibit C (Intentionally Deleted.) Exhibit D Promissory Note Exhibit E (Intentionally Deleted.) Exhibit F (Intentionally Deleted.) Exhibit G (Intentionally Deleted.) Exhibit H (Intentionally Deleted) Exhibit I Insurance Requirements -30- SUBSTITUTED 12.1 N Waiver of Jury Trial. Neither the Subrecipient, nor any other person liable for the responsibilities, ligations, services and representations herein, nor any assignee, successor, heir or personal repre ntative of the Subrecipient, or any other person or entity shall seek a jury trial in any lawsuit, proc ding, counterclaim or any other litigation procedure based upon or arising out of this Agreement, r the dealings or the relationship between or among such persons or entities, or any of them. Neith the Subrecipient, nor any other person or entity will seek to consolidate any such action in which jury trial has been waived with any other action. The provisions of this paragraph have been ful discussed by the parties hereto, and the provisions hereof shall be subject to no exceptions. Nei er party to this Agreement has in any manner agreed with or represented to any other parry that a provisions of this paragraph will not be fully enforced in all instances. -31- SUBSTITUTED IN TNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their dersibned officials as duly authorized, the day and year first above written. ATTEST: Parrot Jungle and Gardens of Watson Island, Inc., a Florida for-profit corporation By: Print Name: Bern Levine, President CORPORATE SEAL ATTEST: By: Priscilla A. Thompson City Clerk APPROVED AS TO INSURANCE REQUIREMENTS By: LeeAnn Brehm Risk Management CITY Or MIAMI, a municipal Corporatiol-,of the State of Florida By: Date Pedro G. Hernandez, P.E. City Manager APPROVED AS TO FORM AND CORRECTNESS: By: Date Julie O. Bru City Attorney -32- Date Date