HomeMy WebLinkAboutLoan AgreementSTATE HOUSING INITIATIVES PARTNERSHIP PROGRAM
LOAN AGREEMENT
This Agreement is dated as of this / day of , k- / iY , 2006, by
and between the City of Miami, a municipal corporation of the State of Florida (hereinafter the
"City") and Allapattah Business Development Authority, Inc., a Florida not -for -profit
corporation, whose address is at 2634 N.W. 21 Terrace, Miami, Florida 33142 (hereinafter the
"Project Sponsor").
FUNDING SOURCE: State Housing Initiatives Partnership Program
AMOUNT: $500,000.00
RESOLUTION: Housing and Commercial Loan Committee approval
of April 28, 2006
PROJECT NAME: Ralph Plaza II Townhomes
PROJECT TYPE: Homeownership/New Construction
TERM OF THE AGREEMENT: See Section 1.11
AFFORDABILITY PERIOD: 30 years
SHIP ASSISTED UNITS: All thirty (30) Project townhomes
IDIS NUMBER: 41/A-
SCI NUMBER: %`J.� 6 J : CC WC)/ �' (7 Ccl
PROPERTY ADDRESS: 3817, 3829 and 3837 NW 17th Avenue and 1680 NW 39th
Street, Miami, FL
EXHIBITS ATTACHED:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Scope of Work /Project Schedule
Legal Description
Budget
Form of Disbursement Agreement
Form of Declaration of Restrictive Covenants
Signage Requirements
Additional Insurance Requirements
Affirmative Marketing Plan
RECITALS
WHEREAS, the Project Sponsor is building a project, known as the Ralph II Townhomes
(the "Project"), that will increase the supply of Affordable homeownership housing units for Low
Income persons and households; and
WHEREAS, on July 13, 1998, the City of Miami City Commission approved an
allocation in the amount of $500,000 in HOME Investment Partnerships Program ("HOME")
funds for such purpose; and
WHEREAS, on June 26, 2001, the City's Housing and Commercial Loan Committee
approved an additional allocation of $730,000 in HOME funds for such purpose; and
WHEREAS, on July 16, 2004, the City of Miami Housing and Commercial Loan
Committee approved: (1) the de -obligation of $388,489 in HOME funds for the Project, and, (2)
an allocation of Community Development Block Grant ("CDBG") funds in the amount of
S815,000.00 for Project pre -development and construction costs; and
WHEREAS, on April 28, 2006, the City of Miami Housing and Commercial Loan
Committee approved: (1) an allocation of State Housing Initiatives Partnership ("SHIP") funds
in the amount of $500,000.00 for Project infrastructure improvements and construction change-
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orders (the "SHIP Funds"); and (2) the conversion of the previously funded $815,000 CDBG loan
to a grant, and,
WHEREAS, the City and the Project Sponsor intend and agree that the SHIP 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 Project Sponsor hereby agree that the capitalized terms used herein shall
have the meanings set forth below unless the context requires otherwise:
1.1 Affordability Period:
For each townhome in the Project, the period of
time commencing on the date of issuance of the
certificate of occupancy for such townhome, and
ending thirty (30) years from the Project Sponsor's
sale of the townhome to the first homebuyer.
1.2 Affordable: A project or unit that satisfies the requirements set
forth in Section 420.9071(2) of the Florida Statutes.
1.3 SHIP Program:
1.4 SHIP Requirements:
The State Housing Initiatives Partnership Program
created pursuant to the State Housing Initiative
Partnership Act, Sections 420.907 - 420.9079 of the
Florida Statutes.
The requirements contained in Sections 420.907-
420.9079 of the Florida Statutes, Chapter 67-37 of
the Florida Administrative Code, all local and state
requirements relating thereto and/or pertaining to
the acquisition, construction, or sale of the Property
or the development of the Project under the SHIP
Program.
1.5 SHIP Funds, The loan in the amount of S500,000.00 from the
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or, SHIP Loan: City to the Project Sponsor for Project infrastructure
improvements and construction change -orders.
1.6 Contract Records:
1.7 Proiect:
1.8 Property:
1.9 SHIP Documents,
or, Loan Documents:
1.10 Legal Requirements:
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 Project
Sponsor or any subcontractor of the Project Sponsor
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.
A project known as the Ralph Plaza II Townhomes,
consisting of thirty (30) townhomes (nine (9) three
bedroom, two bath units, two (2) three bedroom,
two and one-half bath units with private entrance,
and nineteen (19) three bedroom, one and one-half
bath units) to be constructed by the Project Sponsor
in accordance with the Scope of Work/Project
Schedule and the plans and specifications (attached
hereto and incorporated herein as Exhibit "A).
The real property located at 3817, 3829 and 3837
N.W. 17th Avenue and 1680 N.W. 39th Street,
Miami, Florida, on which the Project is being
constructed, as described in Exhibit "B" attached
hereto and incorporated herein.
This Agreement and all other documents that may
now or hereafter evidence or secure the SHIP
Funds, together with all other documents executed
in connection therewith or presented by the Project
Sponsor to the City in connection therewith, and all
amendments, extensions and renewals to any of the
foregoing.
The SHIP Requirements, all federal, state and local
laws, regulations and requirements relating thereto
or pertaining to the development or construction of
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1.11 Term:
1.12 The Covenant:
1.13 Effective Date:
1.I4 SHIP Assisted Units
1.15 Low Income:
the Project, and any requirements imposed by the
City.
The period commencing on April 1, 2005 and
ending fifteen (15) days after the Project Sponsor's
sale, in accordance with the terms hereof, of the last
of the thirty (30) Project units, but in no event later
than July 31, 2007, unless sooner terminated by the
City.
A Declaration of Restrictive Covenants to be
recorded in the Public Records of Miami -Dade
County, Florida to ensure that the Project units will
qualify and remain Affordable throughout the
Affordability Period.
The date on which the City Clerk affixes an
attestation to this Agreement.
All thirty (30) Project units are set aside for
occupancy by Low Income persons/households
throughout the Affordability Period. Restrictions
apply to these units as provided in this Agreement,
the Covenant, the other SHIP Documents and the
Legal Requirements.
One or more natural persons or a family that has a
total annual gross household income that does not
exceed 80 percent of the median annual income
adjusted for family size for households within the
metropolitan statistical area, the county or the non -
metropolitan median for the state, whichever is
greatest.
ARTICLE II
SHIP FUNDS
Upon satisfaction of all conditions of this Agreement and all of the other Loan
Documents, the City shall disburse the SHIP Funds to the Project Sponsor for the purposes
herein set forth.
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2.1 Ralph II Townhomes is a new construction, homeownership project that will
increase the supply of Affordable housing units for Low Income persons and households. The
Project consists of thirty (30) townhomes (nine (9) three bedroom, two bath units, two (2) three
bedroom, two and one-half bath units with private entrance, and nineteen (19) three bedroom,
one and one-half bath units).
The SHIP Funds shall be used for Project infrastructure improvements and
construction change -orders in accordance with the Budget attached hereto and incorporated
herein as Exhibit "C".
2.2 Disbursement. The SHIP Funds shall be disbursed in accordance with the Budget
attached hereto and incorporated herein as Exhibit "C" and in the manner set forth in that certain
Disbursement Agreement dated of even date herewith, a copy of which is attached hereto and
incorporated herein as Exhibit "D". Those eligible Project costs incurred during the period
commencing on April 1, 2005 and ending fifteen (15) days after the issuance of all certificates of
occupancy/certificates of completion required for the Project, but in no event later than
December 29, 2006, may be eligible for reimbursement by the City in accordance with the
Disbursement Agreement. The Project Sponsor may not request disbursement of funds pursuant
to this Agreement and the Disbursement Agreement until such funds are needed for the
reimbursement of eligible costs.
2.3 Repayment of SHIP Funds. The SHIP Loan shall bear interest at the rate
of six per cent (6%) per annum simple interest on funds outstanding. The SHIP Loan shall be due
and payable on July 31, 2007, provided, however, that in the event that the Project Sponsor
shall:
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(i)
meet all of its obligations hereunder and under all of the Loan Documents
executed in connection herewith,
(ii) obtain all required certificates of occupancy/certificates of completion for
the Project on or before December 29, 2006,
(iii) sell each of the thirty (30) Project townhomes on or before July 31, 2007:
(a) to a Low Income person or household approved by the City, and (b) in
compliance with all other requirements of this Agreement and the other
Loan Documents; and
(iv) upon the sale of each of the thirty (30) Project townhornes, repay to the
City the difference between the amount of City funded homebuyer second
mortgage financing and $16,666.67,
then, in such event, the City shall cancel all indebtedness on the Loan, consider the SHIP Funds
drawn hereunder a grant, and cancel the Promissory Note (the "Note") and satisfy the Mortgage
(the "Mortgage") executed by the Project Sponsor in favor of the City in connection herewith,
further provided, however, that upon the occurrence an Event of Default as provided in this
Agreement (and the continuance of such Event of Default beyond the applicable cure period, if
any), the outstanding principal balance of the SHIP Loan, all interest accrued thereon, and all
other obligations of the Project Sponsor to the City shall be immediately due and payable.
Notwithstanding anything contained herein to the contrary, upon the sale of each of the
thirty (30) Project townhornes:
(x) to a Low Income person or household approved by the City, and
(y) in compliance with all other requirements of this Agreement and the other Loan
Documents,
the City shall release such townhome from the lien of the Mortgage and shall cancel that portion
of the indebtedness repayable on the Loan applied to homebuyer second mortgage financing for
such townhome. The extent to which the SHIP Funds disbursed hereunder will be applied to
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homebuyer second mortgage financing for each Project townhome shall be determined by the
City, in its sole and absolute judgment, provided, however, that for each Project townhome, the
amount of SHIP Funds to be applied to homebuyer second mortgage financing shall not exceed
$16,666.67.
ARTICLE III
DISBURSEMENT REQUIREMENTS
3.1 CONDITIONS OF DISBURSEMENT OF SHIP FUNDS.
The City shall not be obligated to disburse the SHIP Funds unless and until the City has
received the following:
3.1.1 Title Insurance. A title insurance commitment issued by a title insurance
company acceptable to the City identifying the City's insurable interest in the
Property, together with copies of all instruments which appear as exceptions
therein. The title policy is to be issued without exceptions, except for those
exceptions permitted by the City, and shall include such affirmative coverage as
the City shall require.
3.1.2 Survey. An original current survey of the Property made by a registered surveyor
satisfactory to the City and the title company and containing such certifications as
the City and the title company may require.
3.1.3 Zoning. Evidence that the Property and the proposed improvements comply with
all applicable zoning ordinances.
3.1.4 Corporate Documents.
(a) The certificate of incorporation or partnership agreement, or their
equivalent, as appropriate, and a good standing certificate for the Project
Sponsor and any other owner of the Property (the "Property Owner"), if
applicable, certified by the appropriate governmental authority.
(b) Bylaws, resolutions, and incumbency certificates, or, in the case of a
partnership, their equivalent, for the Project Sponsor and the Property
Owner, if applicable, certified by the Corporate Secretary or other
authorized signer, authorizing the consummation of the transactions
contemplated hereby, all satisfactory to the City.
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(c) Evidence satisfactory to the City that Project Sponsor is qualified to
receive funds under the SHIP Program in accordance with the SHIP
Requirements.
3.1.5 Insurance Policies.
(a) Comprehensive General Liability and umbrella liability coverage in an
amount not less than $500,000.00 per occurrence and $1,000,000.00
aggregate, protecting the City and the Project Sponsor against liability
incidental to the use of, or resulting from an accident occurring on or
about, the Property, including coverage for: (i) fire, explosion, collapse
and underground hazards, completed operations and independent
contractors, and (ii) automobile liability for all owned vehicles as well as
coverage for non -owned and hired automobiles.
(b) Workers' compensation insurance as required by the laws of the State of
Florida.
(c) Employer's liability insurance protecting the Project Sponsor against
liability resulting from any accident or liability arising from or relating to
any construction on the Property.
(d) A builder's risk policy, using a completed value form in an amount not less
than one hundred percent of the full insurable replacement cost of the
Project, insuring the Project from such perils and other hazards as the City
may reasonably require, including without limitation, fire, extended
coverage, vandalism and malicious mischief, and collapse.
(e) Federal flood insurance in such an amount as is satisfactory to the City.
(f) A bid, payment and/or performance bond in such form as may be required
by the City.
All such insurance shall insure the City as an additional insured, with a loss
payable clause in favor of the City. The Project Sponsor shall be required to
obtain and furnish evidence of any other insurance coverage the City may require
during the Term of this Agreement, including, but not limited to, that described on
Exhibit G. 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.
Failure of the Project Sponsor to submit all required evidence of the specified
insurance coverage, except for Comprehensive General Liability and umbrella
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liability coverage, fourteen (14) calendar days prior to the start of construction
shall delay the disbursement of the SHIP Funds.
3.1.6 Operative Documents. This Agreement, the Note, the Mortgage, the Covenant
and all other SHIP Documents, duly and lawfully executed by the Project Sponsor
and in recordable form, where appropriate.
3.1.7 Appraisal. A current appraisal of the Property made by a member of the
American Institute of Real Estate Appraisers.
3.1.8 List of Subcontractors. A list of all of the Project Sponsor'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.
3.1.9 Compliance with SHIP Requirements. All other documents required by the SHIP
Program evidencing compliance with SHIP Requirements.
3.1.10 Firm Commitments for Construction Financing. Evidence of firm commitments
for construction financing sufficient to complete Project.
3.1.11 Evaluation of Project Costs. A written evaluation of the Project's costs as
prepared by an independent engineer engaged by the Project Sponsor to provide
such evaluation.
3.1.12 First Source Hiring Agreement. If requested by the City, an executed First Source
Hiring Agreement between the Project Sponsor and the City.
3.1.13 Historic Preservation Review. All applicable requirements of the State of Florida
Historic Preservation Department shall have been met prior to the disbursement of
any funds hereunder.
3.1.14 Environmental Report. The Project Sponsor shall submit all environmental
information requested by the City with respect to the Project including, but not
limited to, Phase I and Phase II Environmental Assessment Reports, as applicable.
3.1.15 Audit Report. The Project Sponsor shall submit to the City audit reports as are
required herein.
3.1.16 Personnel Policies and Administrative Procedure Manuals. The Project Sponsor
shall submit detailed documents describing the Project Sponsor's internal
corporate organizational structure, property management and procurement policies
and procedures, personnel management, accounting policies and procedures, etc.
Such information shall be submitted to the City within thirty (30) days of the
execution of this Agreement and prior to the disbursement of any funds hereunder.
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3.1.17 Certificate Regarding Lobbying. Such Certificate Regarding Lobbying as may be
requested by the City.
3.1.18 Certificate Regarding Debarment, Suspension, and Other Responsibility Matters.
Such Certificate Regarding Debarment, Suspension and Other Responsibility
Matters as may be requested by the City.
3.1.19 Public Entity Crime Affidavit. Such Public Entity Crime Affidavit as may be
required by the City.
3.1.20 Environmental Clearance. (Intentionally deleted).
3.1.21 Construction Contract. A copy of the construction contract for construction of the
Project in accordance with the Plans for a guaranteed maximum price. At the
City's request, and upon the occurrence of an event of default, the Project Sponsor
shall assign the construction contract to the City, as security for the Project
Sponsor's obligations under the SHIP Documents.
3.1.22 All other documents required by the City.
ARTICLE IV
SHIP REQUIREMENTS
The Project Sponsor shall comply with the following SHIP Requirements:
4.1 GENERAL.
4.1.1 The Project Sponsor shall maintain current documentation that its
activities qualify under the SHIP Requirements.
4.1.2 The Project Sponsor shall ensure and maintain documentation that
conclusively demonstrates that each activity assisted in whole or in part
with SHIP Funds is an activity which benefits Low/Very Low Income
families and individuals.
4.1.3 The Project Sponsor shall comply with all applicable provisions of the
State Housing Initiative Partnership Act (the "Act") and the regulations
issued in connection therewith, and shall carry out each Project activity in
compliance with all other applicable laws and regulations.
4.1.4 The Project Sponsor shall agree in writing to comply with any and all
requirements as may be set forth in the Site Environmental Clearance
Statement executed in connection herewith.
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4.1.5 The Project Sponsor shall cooperate with the City in informing the
appropriate citizen participation structures, including the appropriate area
committees, of the activities of the Project Sponsor in adhering to the
provisions of this Agreement. Representatives of the Project Sponsor shall
attend meetings of the appropriate committees and citizen participation
structures upon the request of the citizen participation officers or the City.
4.1.6 The Project Sponsor shall, to the greatest extent possible, give Low
Income residents of the service community opportunities for training and
employment.
4.1.7 The Project Sponsor shall comply with all applicable displacement and
relocation requirements.
4.2 REAL PROPERTY.
4.2.1 Any real property that was acquired or improved in whole or in part with
SHIP Funds received from the City shall be either:
(a) Used to complete one of the SHIP Program eligible activities
required by and defined in the Act for such period of time as shall
be determined by the City based on the eligible activity.
(b) Disposed of in a manner that results in the City being reimbursed
for the amount of the current fair market value of the Property as
may be determined by the City in its sole and absolute discretion,
less any proportionate portion of the value attributable to
expenditures of non -SHIP funds for the acquisition, or
improvement, of the Property.
4.2.2 All real property purchased in whole or in part with funds for this and
previous Agreements with the City, or transferred to the Project Sponsor
after being purchased in whole or in part with funds from the City, shall be
listed in the property records of the Project Sponsor and shall include: a
legal description; size; address and location; owner's name if different
from the Project Sponsor; information on the transfer or disposition of the
property; and a map indicating whether property is in parcels, lots, or
blocks and showing adjacent streets and roads. The property records shall
describe the programmatic purpose for which the property was acquired
and identify the SHIP activity that will be completed. If the property was
improved, the records shall describe the programmatic purpose for which
the improvements were made and identify the SHIP activity that will be
completed.
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4.3 PERSONAL PROPERTY.
4.3.1 Definitions.
(a) Personal Property. Personal Property of any kind except real property:
1) Tangible. All personal property having physical existence.
2) Intangible. All personal property having no physical existence
such as patents, inventions and copyrights.
(b) Non -expendable Personal Property. Tangible personal property of a non-
consumable nature, with a value of $500 or more per item, with a normal
expected life of one or more years, not fixed in place, and not an integral
part of a structure, facility, or another piece of equipment.
(c) Expendable Personal Property. All tangible personal property other than
non -expendable property.
4.3.2 Requirements. The Project Sponsor shall comply with the non -expendable
personal property requirements stated below:
(a) All non -expendable personal property purchased in whole or in part with
funds from this and previous contracts with the City shall be listed in the
property records of the Project Sponsor and shall include: a description of
the property; location; model number; manufacturer's serial number; date
of acquisition; funding source; unit cost; property inventory number;
information on its condition; and information on the transfer, replacement,
or disposition of the property.
(b) All non -expendable personal property purchased in whole or in part with
funds from this and previous contracts with the City shall be inventoried
annually by the Project Sponsor and an inventory report submitted to the
City when and as requested by the City. The inventory report shall include
the elements listed in Paragraph 4.3.2(a), above.
(c)
Ownership of all non -expendable personal property purchased in whole or
in part with funds given to the Project Sponsor pursuant to the terms of
this Agreement shall vest in the City upon termination of this Agreement.
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4.4 DISPOSITION. The Project Sponsor shall obtain the prior written approval of the City
for the disposition of real property, expendable personal property and non -expendable personal
property given by the City to the Project Sponsor or purchased in whole or in part with funds
given to the Project Sponsor 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.
4.5 SUBCONTRACTS AND ASSIGNMENTS.
4.5.1 The Project Sponsor 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 limited to 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.
4.5.2 The Project Sponsor shall incorporate in all consultant and other subcontracts the
following provision:
"[The Project Sponsor] is not responsible for any insurance or other fringe
benefits, e.g., social security, income tax withholding, retirement or leave benefits,
for [consultant/subcontractor] or employees of [consultant/subcontractor], that are
normally available to direct employees of [the Project Sponsor].
[Consultant/subcontractor] assumes full responsibility for the provision of all
insurance and fringe benefits for himself/herself/itself and employees retained by
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[consultant/subcontractor] in carrying out the Scope of Work provided in this
contract/subcontract."
4.5.3 The Project Sponsor shall be responsible for monitoring the contractual
performance of all subcontracts.
4.5.4 The Project Sponsor 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 Project Sponsor's subcontractor(s).
4.5.5 The Project Sponsor shall receive written approval from the City prior to either
assigning or transferring any obligations or responsibility set forth in this
Agreement.
4.5.6 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.
4.5.7 The Project Sponsor and its subcontractors shall comply with the Davis -Bacon
Act, if applicable, the Copeland Anti -Kick Back Act, the Contract Work Flours
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.
4.5.8 The Project Sponsor shall submit to the City for written prior approval all
proposed Solicitation Notices, Invitations for Bids, and Requests for Proposals.
4.6 REPORTING OBLIGATIONS.
4.6.1 The Project Sponsor shall submit, as required, the following:
4.6.1.1 Progress Reports. Status reports and projected completion dates to
describe the progress made by the Project Sponsor in achieving
each of the objectives identified in Exhibit "A". Such reports shall
be provided to the City on a monthly basis throughout the Term of
this Agreement.
4.6.1.2 Inventory Report. The Project Sponsor 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.
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4.6.1.3 Affirmative Action Plan. The Project Sponsor shall report to the
City such information relative to the equality of employment
opportunities whenever requested by the City.
4.6.1.4 Assurance of Compliance with Section 504 of the Rehabilitation
Act. The Project Sponsor shall report its compliance with section
504 of the Rehabilitation Act, whenever requested by the City.
4.6.1.5 Affirmative Marketing Plan and Report. The Project Sponsor shall
report to the City annually on all actions taken to comply with the
affirmative marketing requirements provided in Exhibit H.
4.6.1.6 List of Subcontractors. A list of all of the Project Sponsor'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.
4.6.1.7
4.6.1.8
Tenant Income Level Report. (Intentionally deleted.)
Minority Business Enterprise Report. The Project Sponsor shall
report on all subcontract activities as requested by the City.
4.6.2 Federal, State and County Laws and Regulations.
4.6.2.1 The Project Sponsor shall comply with applicable provisions of
federal, state, county and City laws, regulations and rules, such as
OMB Circular No. A-122, OMB Circular No. A-110, OMB
Circular No. A-21 and OMB Circular No. A-133, which are
incorporated herein by reference, as they may be revised from time
to time, and 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, and Executive Order 11063
which prohibits discrimination in housing on the basis of race,
color, religion, sex, or national origin; Executive Order 11246
which requires equal employment opportunity; and with the Energy
Policy and Conservation Act (Pub. L. 94-163) which requires
mandatory standards and policies relating to energy efficiency.
4.6.2.2 If the amount payable to the Project Sponsor pursuant to the terms
of this Agreement is in excess of $100,000.00, the Project Sponsor
shall comply with all applicable standards, orders, or regulations
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issued pursuant to the Clean Air Act of 1970 (42 U.S.C. 7401 et.
seq.), as amended; the Federal Water Pollution Control Act (33
U.S.C. 1251), as amended; Section 508 of the Clean Water Act (33
U.S.C. 1368); Environmental Protection Agency regulations (40
CFR Part 15); and Executive Order 11738.
4.6.3 Audits and Records.
4.6.3.1 The Project Sponsor 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 Project Sponsor fiscal year.
4.6.3.2 The Project Sponsor 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.
4.6.3.3 The Project Sponsor shall ensure that the Contract Records shall be
at all times subject to and available for full access and review,
inspection or audit by the City and federal personnel and any other
personnel duly authorized by the City.
4.6.3.4 The Project Sponsor 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.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PROJECT SPONSOR
The Project Sponsor represents and warrants to the City as follows:
5.1 Organization and Existence. The Project Sponsor is a Florida not -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 SHIP Funds, to own and develop the Project.
The Project shall comply with all applicable SHIP Requirements and Legal
Requirements. The Project Sponsor 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 SHIP Program, this Agreement, and/or
the other SHIP 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, Actions and Judgments. There are no conditions,
circumstances, events, agreements, documents, instruments, restrictions, actions, suits or
proceedings pending or threatened against or affecting the Project Sponsor, the Project or the
Property which could adversely affect the Project Sponsor's ability to comply with the SHIP
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Program, complete or operate the Project or to perform its obligations hereunder or which would
constitute an Event of Default hereunder or under the other SHIP 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 Project Sponsor.
5.4 Non -Default. The Project Sponsor 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 SHIP Documents, the consummation of the other
transactions contemplated hereby, and the ownership and development of the Project as
contemplated hereby and by the other SHIP 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 Project Sponsor 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 SHIP Documents, when
executed and delivered, shall constitute the duly authorized, legal, valid and binding obligations
of the Project Sponsor and will be enforceable in accordance with their respective terms.
5.6 Marketable Title. The Project Sponsor has good and marketable title to the
Property subject only to the exceptions and other matters set forth in Attorneys' Title Insurance
Fund Commitment No. C-7121924, issued by Lazaro J. Lopez, Esq., effective as of August 8,
2006 at 11:00 P.M.
5.7 Compliance . The completion and use of the Project in accordance with the
Scope of Work will comply fully with all Legal Requirements, and with all limitations on the use
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of the Project, or any other condition, grant, easement, covenant, or restriction, whether recorded
or not. All necessary approvals, permits and licenses for the pre -development and/or
construction, operation, and use of the Project have been unconditionally obtained and are in full
force and effect, and shall be maintained in full force and effect, or if the present state of
construction of the Project does not allow such issuance, then such approvals, permits and
licenses will be issued when appropriate and available.
5.8 Encroachments. When completed in accordance with the Scope of Work, the
Project will not encroach upon any building line, setback line, sideyard line or other recorded or
visible easements or other easements of which the Project Sponsor is aware which exists (or
which the Project Sponsor has reason to believe may exist) with respect to the Project.
5.9 Scope of Work. The Scope of Work is complete in all respects, and contains all
details requisite for the Project which, when built and equipped in accordance therewith, shall be
ready for the intended use and occupancy thereof.
5.10 Leases. There are no leases, tenancies, licenses or agreements for use of any part
of the Property other than as specifically disclosed to and approved by the City.
5.11 Pending Assessments. The Project Sponsor has no knowledge of any pending or
proposed governmental action that would impair the operation or value of the Project or result in
a special assessment against the Project.
5.12 Waste. The Project Sponsor shall not commit or suffer waste or negligence on the
Project.
5.13 Fraud. No fraud by the Project Sponsor has occurred in the qualification of the
Project, the Project Sponsor and/or the Property under the SHIP Program, the negotiation of this
Agreement and the other SHIP Documents, nor in the transactions contemplated hereby.
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5.14 No Casualty. No part of the Property and/or the Project has been damaged or has
been subjected to condemnation or other proceedings, and no such proceedings have been
threatened.
5.15 No Changes. There have been no material adverse changes in projected costs and
expenses of the Project or in the occupancy of the Property or the Project or any other features of
the transactions contemplated hereby as submitted to the City.
5.16 Compliance with Laws and Regulations. The Project Sponsor will comply at all
times with all Legal Requirements and with all SHIP Requirements affecting the ownership, use,
rehabilitation, lease and operation of the Project.
5.17. Other Financing. The Project Sponsor has not applied for or received, and does
not otherwise have available, in connection with the Project any other financing/funding, except
for those funds, loans and/or loan commitments previously identified in writing to, and approved
by, the City.
5.18 Reaffirmation. Each of the representations and warranties set forth in this Article
shall be true at all times and the acceptance of the SHIP Funds hereunder by the Project Sponsor
shall be deemed to be a reaffirmation of each of the representations and warranties given in this
Agreement.
ARTICLE VI
PROJECT SPONSOR'S OBLIGATIONS
6.1 Scope of Work. The Project Sponsor shall perform the Scope of Work as set forth
herein and on Exhibit "A" attached.
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The Project Sponsor shall:
(a) meet all of its obligations hereunder and under all of the Loan Documents executed in
connection herewith,
(b) obtain all required certificates of occupancy/certificates of completion for the Project
on or before December 29, 2006,
(c) sell each of the thirty (30) Project townhomes, on or before July 31, 2007:
(1) to a Low Income person or household approved by the City,
(2) in accordance with the following maximum sales price restrictions:
• Nineteen (19) three bedroom, one and one-half bath units: $125,000.00
• Two (2) three bedroom, one and one-half bath units with private entrance:
$ 1 35,000.00
• Nine (9) three bedroom, two bath units: $145,000.00, and
(3) in compliance with all other requirements of this Agreement and the other
Loan Documents,
(d) upon the sale of each of the thirty (30) Project townhomes, repay to the City the
difference between the amount of City funded homebuyer second mortgage financing and
$16,666.67,
(e) Within fifteen (15) calendar days of the Project Sponsor's receipt thereof, pay to the
City of Miami any impact fees reimbursed to the Project Sponsor, including, but not limited to,
contributions and reimbursements, and
(f) Within fifteen (15) calendar days of the Project Sponsor's receipt thereof, pay to the
City of Miami any funds reimbursed to the Project Sponsor in connection with the water main
extension for the Project.
6.2 Reporting Obligations. The Project Sponsor shall submit to the City all reports as
described in Section 4.6 hereof, and all other reports that the City may require, in such form,
manner, and frequency as the City may require to monitor the progress of the Project and the
Project Sponsor's performance and compliance with. this Agreement and all Legal
Requirements.
6.3 Retention of Records. The Project Sponsor shall retain all Contract Records for
six (6) years after expiration of the Term (hereinafter referred to as "Retention Period") subject to
the limitations set forth below:
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(a) If the City or the Project Sponsor 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 Scope of Work or under the terms of this Agreement, the
Retention Period shall be extended until such time as the threatened or pending litigation,
claim or audit is, in the sole and absolute discretion of the City, fully, completely and
finally resolved.
(b) The Project Sponsor 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
required Retention Period.
(c) The Project Sponsor 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.
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 Project
Sponsor 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 Project Sponsor 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 Project Sponsor receives funds from, or is under regulatory control of, other
governmental agencies and those agencies issue monitoring reports, regulatory examinations, or
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other similar reports, the Project Sponsor shall provide a copy of each such report and any
follow-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 Project Sponsor shall obtain the City's prior written approval
prior to undertaking any of the following with respect to the Project and/or the Property:
(a) The sale, assignment, pledge, transfer, hypothecation or other
encumbrance or disposition of any proprietary or beneficial interest in the Project
Sponsor, the Project or the Property (other than the sale of the Project townhomes in
accordance herewith), or any change in the operating control of the Project Sponsor,
which shall require the prior approval of the City's Housing and Commercial Loan
Committee or the City Commission, as appropriate.
(b) The disposition of any real property or any expendable personal property
or non -expendable personal property as defined in Paragraph 4.3.1.
(c)
The use of Program Income (as defined in 24 CFR Part 92) other than as
specifically provided in the Project Budget and approved by the City.
(d) Any proposed Solicitation Notice, Invitation for Bids or Request for
Proposals.
(e) The disposal of any Contract Records.
6.6 Monitoring. The Project Sponsor shall permit the City and other persons duly
authorized by the City to inspect all Contract Records, facilities, goods, and activities of the
Project Sponsor 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
Project Sponsor. Following such inspection or interviews, the City will deliver to the Project
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Sponsor a report of its findings. The Project Sponsor 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 Project Sponsor's justification is acceptable.
6.7 Conflict of Interest.
A. The Project Sponsor 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
(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 SHIP Program conflict of interest rules (24 C.F.R.§92.356), and
agrees that it will fully comply in al] respects with the terms thereof and any future amendments.
B. The Project Sponsor 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 Project Sponsor further covenants that,
in the performance of this Agreement, no person or entity having such conflicting interest shall
be utilized in respect to the Scope of Work or services provided hereunder. Any such conflict of
interest(s) on the part of the Project Sponsor, its employees or associated persons or entities must
be disclosed to the City.
C. The Project Sponsor 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 Project Sponsor shall make any such disclosure to the City in writing and
immediately upon the Project Sponsor's discovery of such possible conflict. The City's
determination regarding the possible conflict of interest shall be binding on all parties.
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E. No employee, agent, consultant, elected official or appointed official of the City,
exercising any functions or responsibilities in connection with the City's SHIP Program or this
Agreement, or who is in a position to participate in the decision -making process or gain inside
information regarding SHIP -assisted activities, has any personal financial interest, direct or
indirect, in this Agreement, the proceeds hereunder, the Project or the Project Sponsor, either for
themselves or for those with whom they have family or business ties, during their tenure or for
one year thereafter.
6.8 Related Parties. The Project Sponsor 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 Project Sponsor and a for -profit or nonprofit subsidiary or affiliate organization, an
organization with an overlapping board of directors, and an organization for which the Project
Sponsor is responsible for appointing memberships. The Project Sponsor 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 Project Sponsor
shall make a positive effort to procure supplies, equipment, construction, or 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.
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6.10 Additional Funding. The Project Sponsor 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 Project Sponsors notification by
the funding source.
6.11 Reversion of Assets. The Project Sponsor shall return to the City upon the
expiration or termination of this Agreement any SHIP Funds on hand, any funds or accounts
receivable attributable to the SHIP Funds, and any overpayments due to unearned funds or costs
disallowed pursuant to the terms of this Agreement that were disbursed to the Project Sponsor by
the City. Any funds not earned by the Project Sponsor 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 any Project townhome is not
sold by the Project Sponsor to a Low Income person/household approved by the City in
accordance with the terms of this Agreement, the Project Sponsor shall repay to the City all SHIP
Funds received by the Project Sponsor pursuant to this Agreement that are attributable to such
townhome, together with interest thereon as provided in the Note.
If for any reason the Project fails to comply with any of the SHIP Requirements or the
Legal Requirements, the Project Sponsor shall repay to the City all SHIP Funds received by the
Project Sponsor pursuant to this Agreement, together with interest thereon as provided in the
Note and all Program Income (as previously defined) derived therefrom or in connection
therewith.
6.I3 Affirmative Marketing. The Project Sponsor shall comply with the affirmative
marketing requirements and procedures provided on Exhibit H.
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6.14 Signage, Acknowledgement, Publicity. During the Term of this Agreement, the
Project Sponsor shall furnish signage identifying the Project and shall acknowledge the
contribution of the City by incorporating the seal of the City and the names of the City
commissioners and officials in all documents, literature, pamphlets, advertisements, and signage,
permanent or otherwise. All such acknowledgments shall be in a form acceptable to the City, as
provided on Exhibit "F".
All publicity and advertisements prepared and released by the Project Sponsor related to
the Project, such as pamphlets and news releases, and all events carried out to publicize the
Project, shall recognize the City as one of the Project's funding sources.
6.15 Costs Incurred By the City. Notwithstanding any other provision of this
Agreement, the Project Sponsor understands and agrees that $15,000.00 of the SHIP Funds was
awarded to the Project for, and may be used by the City to cover, costs incurred by the City on
behalf of the Project. Such costs may include, but are not limited to, environmental advertising
costs, signage and recording fees.
6.16 Affirmative Action. The Project Sponsor shall not discriminate on the basis of
race, color, national origin, sex, religion, age, marital or family status or handicap/disability in
connection with its performance under this Agreement.
6.17 Previously Funded City Projects. The Project Sponsor shall comply with the
foIIowing relating to previously funded City projects which are under construction or in the
affordability period: (1) all applicable reporting requirements, including OMB A-133, and (2) all
applicable insurance requirements.
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6.18 Compliance Requirements. The Project Sponsor shall comply at all times with all
applicable SHIP Requirements including, but not limited to, those affecting the ownership,
construction, use, and operation of the Project, and all other Legal Requirements.
The Project Sponsor 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.
6.19 Compliance with Safety Precautions. The Project Sponsor 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 Project Sponsor 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 Project
Sponsor shall contact the City's Risk Management Department Safety Unit in writing to
coordinate such inspection(s).
The Project Sponsor 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
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Project Sponsor shall take affirmative steps to ensure nondiscrimination in the employment of
disabled persons.
6.20 Section 3 Clause. The Project Sponsor 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. 1701u (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
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.
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(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 filed 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).
ARTICLE VII
DEFAULT
7.1 The happening of any one or more of the following events shall constitute an
Event of Default:
(a) Failure of any of the Project units to remain Affordable at any time during
the term hereof, until sold by the Project Sponsor to a Low Income person/household.
(b) If any term, condition or representation contained in this Agreement or any
of the other SHIP 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.
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(c) The substantial discontinuance of the construction 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 Project Sponsor, the Project or the Property
(other than the sale of the Project townhomes in accordance herewith); or any change in
operating control of the Project Sponsor without the prior written approval of the City's
Housing and Commercial Loan Committee or the City Commission, as appropriate.
(e) In the event that the City determines, in its sole and absolute discretion,
that the Project is not being erected in a good and workmanlike manner in accordance
with the Scope of Work, or that the Project Sponsor is failing 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 Project Sponsor or
the Property.
(f) Failure by the Project Sponsor to comply with any term or provision of
this Agreement or any of the other Loan Documents.
(g) Any change in zoning requirements or zoning classification of the
Property, which in the City's sole discretion would materially interfere with the
completion of construction of the Project or the ultimate operation 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
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agreement or obligation of any kind or nature whatsoever of the Project Sponsor to the
City, direct or contingent, whether now or hereafter due, existing, created or arising.
(i)
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 any other sponsor of the
Project, or of any individual or entity executing this Agreement, to the City, direct or
contingent, whether now or hereafter due, existing, created or arising.
(j) 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 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 SHIP Loan. If an Event of Default shall
continue uncured for a period of fifteen (15) consecutive days following written notice thereof to
the Project Sponsor (except for the events described in Section 7.1 (a), (b), (h) and (i) 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 SHIP Funds. Demand that the Project Sponsor reimburse the
City, and the Project Sponsor shall reimburse the City, in an amount equal to the SHIP Funds
disbursed to the Project Sponsor pursuant to this Agreement, all interest accrued thereon, all
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other obligations of the Project Sponsor to the City and any Program Income derived from the
SHIP Funds or in connection therewith.
(c) Other Remedies. Exercise any other right, privilege or remedy available to
the City as may be provided by applicable law, or in any of the other SHIP Documents.
It is understood and agreed that the occurrence of an Event of Default under Section 7.1
(a), (b), (h) or (i) shall immediately entitle the City to exercise any of the above described
remedies without the need to give the Project Sponsor notice thereof or 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 Project Sponsor or a materialman, laborer,
subcontractor or supplier, shall have any interest in the SHIP 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
INDEMNIFICATION
The Project Sponsor 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 Project
Sponsor, its officers, agents, employees, or assignees in the fulfillment of this Agreement. The
Project Sponsor 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.
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ARTICLE X
TERMINATION
10.1 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 Project
Sponsor.
10.2 Termination for Breach. The City may terminate this Agreement, in whole or in
part, in the event the City determines, in its sole and absolute discretion, that the Project Sponsor
is not making sufficient progress with regard to the Project (thereby endangering its ultimate
performance under this Agreement) or is not materially complying with any term or provision of
this Agreement, which breach or non-compliance remains uncured as provided in this
Agreement.
The City may terminate this Agreement, in whole or in part, 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 Project Sponsor to the City, direct or contingent, whether now or hereafter due, existing,
created or arising.
The City may terminate this Agreement, in whole or in part, 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 other Project sponsor, or of any
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individual or entity executing this Agreement, to the City, direct or contingent, whether now or
hereafter due, existing, created or arising.
10.3 Upon the expiration of any cure period (in those circumstances for which a cure
period is otherwise provided in this Agreement), and unless the Project Sponsor's breach is
waived by the City in writing, the City may, by written notice to the Project Sponsor, terminate
this Agreement upon not less than twenty-four (24) hours prior written notice.
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
Ciry's right to legal or equitable remedies.
ARTICLE XI
SUSPENSION
11.1 The City may, for reasonable cause withhold payments to the Project Sponsor
pending necessary corrective action by the Project Sponsor. Reasonable cause shall be
determined by the City in its sole and absolute discretion and may include:
(a) Ineffective or improper use of the SHIP Funds by the Project Sponsor;
(b) Failure of the Project Sponsor to comply with any term or provision of this
Agreement;
(c) Failure of the Project Sponsor to submit any documents required by this
Agreement; or
(d)
The Project Sponsor's submittal of incorrect or incomplete documents.
11.2 The determinations and actions described in paragraph 11.1 above may be applied
to all or any part of the activities funded pursuant to this Agreement.
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11.3 The City will notify the Project Sponsor in writing of the type of action taken
pursuant to this Article. Such notice shall be given in accordance with the provisions of Section
12.8 hereof. The notification will include the reason(s) for such action, any conditions relating to
the action, and the necessary corrective action(s).
ARTICLE XII
MISCELLANEOUS
12.1 Enforcement Methods. As a means of enforcing compliance with the SHIP
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
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 Project Sponsor shall be in
writing. A waiver shall not be construed to be a modification of this Agreement.
12.4 Budget and SHIP Eligibility Activity Title Revisions. Revisions to the Budget
shall be made in writing, and approved in writing by the City; however, such revisions shall not
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necessitate an amendment hereto unless the amount of the SHIP Loan to be granted hereunder is
changed, or unless otherwise required by the City.
A revision to the SHIP 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 Project Sponsor
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 Project Sponsor. 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
Project Sponsor agrees that the City Manager's determination shall be final and binding on all
parties, subject only to judicial review.
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:
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To City:
With Copy To:
To Project Sponsor:
City of Miami
Department of Community Development
444 Southwest 2"d Avenue, Suite 239
Miami, Florida 33130
ATTN: Barbara Rodriguez, Director
Office of the City Attorney
444 Southwest 2"d Avenue, Suite 945
Miami, Florida 33130
Attention: Ilene Temchin, Esquire
Allapattah Business Development Authority, Inc.
2634 Northwest 21 Terrace
Miami, Florida 33142
Attn: Xiomara Pacheco, Executive Director
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 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
Exhibit B
Scope of Work /Project Schedule
Legal Description
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Exhibit C Budget
Exhibit D Form of Disbursement Agreement
Exhibit E Form of Declaration of Restrictive Covenants
Exhibit F Signage Requirements
Exhibit G Additional Insurance Requirements
Exhibit H Affirmative Marketing Plan
12.11 Waiver of Jury Trial. Neither the Project Sponsor nor its subcontractor(s), nor any
other person liable for the responsibilities, obligations, services and representations herein, nor
any assignee, successor, heir or personal representative of the Project Sponsor, its subcontractors
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 Project
Sponsor nor its subcontractors, 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.
(Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their undersigned officials as duly authorized, on the day and year first above -
written.
ATTEST:
Print Name:
ATTEST:
Priscilla A. Thompson
City Clerk
Approved As To Insurance
Requirements:
Ann Brehm
Risk Management Administrator
IT-ABDA Ralph Plaza II SHIP Agreement-08-I4-06
PROJECT SPONSOR:
Allapattah Business Development
Authority, Inc., a Florida not -for -profit
corporation
By:
Date:
Xio`checo, Executive Director
City of Miami, a municipal corporation
of the State--ofi ?orida
By Pedro G. He ez
City Manager
Date: <d 3 p
Approved As To Form and
Correct ess:
�w.
2
Jorge L Ferna dez
City At orney
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