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HomeMy WebLinkAboutExhibitIN -KIND COOPERATION AGREEMENT This In -Kind Cooperation Agreement ("Agreement") is made as of the day of , 2008, by and between the City of Miami (the "City"), a municipal corporation organized under the laws of the State of Florida, with offices at 3500 Pan American Drive, Miami, Florida 33133 and the Miami Economic Development, LLC (the "CDE"), a Florida limited liability company, with offices at 444 SW 2nd Avenue, 5th Floor, Miami, Florida 33130. WITNES SETH WHEREAS, it is the purpose and the intent of this Agreement and the parties hereto to permit the City and the CDE, as hereinafter defined, to make the most efficient use of their respective powers, resources and capabilities by enabling them to cooperate on the basis of mutual advantage and thereby to provide the services and achieve the results provided for herein; and WHEREAS, the CDE was created pursuant to a directive by the Miami City Commission on January 11, 2007 and WHEREAS, the primary purpose of the CDE is serving or providing Qualified Low - Income Community Investments (the "Projects"); and WHEREAS, it is consistent with the purpose of this Agreement to provide a means by which the City and the CDE may jointly exercise the powers, privileges and authorities that they share in common and that each might exercise separately but which pursuant to this Agreement they may exercise collectively, including but not limited to the manner of providing financial assistance and resources needed to accomplish the planning, design, development and implementation necessary for the undertaking and carrying out of the purposes and Projects herein; and WHEREAS, the City and the CDE desire herein to provide for their mutual and respective undertakings, agreements, rights, duties and obligations pertaining to the planning, design development and implementation of the Projects and the necessary staff, consultants and other service providers related thereto; and WHEREAS, the City and the CDE desire to facilitate the financing of the Projects for the current Fiscal Year (commencing on October 1 of each year and ending on the next succeeding September 30) and for future years, pursuant to the terms of this Agreement and related agreements as provided herein; and WHEREAS, the parties desire, in the spirit of cooperation, to permit intergovernmental coordination between the City and the CDE for: (i) certain services relating to financial support; (ii) the use of certain City employees; and (iii) other assistance related to the Projects and future Projects; and 6 Page 1 of 10 WHEREAS, the financing of the Projects and providing of employees to carry out services associated with the Projects will further governmental purposes and be of substantial benefit to the City and the CDE; and WHEREAS, the CDE's provision of program management, technical assistance, planning, coordination, development and other services necessary for the Projects will further the interests of the CDE and the City and shall serve a public purpose by, among other things, providing Qualified Low -Income Community Investments in the manner of providing financial assistance and resources needed to accomplish the planning, design, development and implementation necessary for the undertaking, carrying out and completion of the purposes and Projects; and WHEREAS, it is necessary and appropriate for the parties to provide for intergovernmental cooperation and to cooperate and jointly proceed as provided herein; NOW THEREFORE, in consideration of the premises and the mutual covenants and obligations herein contained and subject to the terms and conditions hereafter stated, the City and the CDE agree as follows: ARTICLE I — AUTHORITY This Agreement is entered into pursuant to and under the authority of Resolution ARTICLE II — DEFINITIONS 2.1 Definitions. The terms defined in this Section 2.1 shall have the following meanings for purposes of this Agreement when initially capitalized herein: (a) "Act" means the Florida Limited Liability Company Act, Chapter 608 of the Florida Statutes in effect in the State of Florida. (b) "Agreement" means this In -Kind Cooperation Agreement, including any exhibits hereto, as the same may be hereafter amended from time to time. (c) "City" means the City of Miami, Florida, a municipal corporation organized under the laws of the State of Florida and any successors thereto or assigns thereof. (d) "Community Development Entity" means a domestic corporation, partnership or limited liability company that (a) has a primary mission of serving or proving investment capital for, Low -Income Communities, Low -Income Persons or Target Populations and (b) maintains "accountability" (as described in the Code and Treasure Regulations and Other Guidance) to residents of Low -Income Communities through their representation on any governing board of such entity or on any advisory board of such entity. Miami Economic Development Fund, LLC. Page 2 of 10 (e) "Effective Date" means the date as determined by § 9.5 hereof on which this Agreement becomes effective. (f) "Expiration Date" means the date on which this Agreement terminates by its own terms as provided in § 7.1 hereof. (g) "Fiscal Year" means the fiscal years of the City and CDE commencing on October I of each year and ending on the next succeeding September 30. G) "Governing Board" means the Governing Board of the CDE. "Manager" means the Governing Board. "Member" means the City. (k) "New Markets Tax Credits" means "New Markets Tax Credits" within the Meaning of § 45D(a)(1) of the Code and the Treasury Regulations. (1) "Projects" means serving or providing Qualified Low -Income Community Investments. (m) "Qualified Low -Income Community Investments" shall have the meaning ascribed to such term in § 45D(d)(1) of the Code and Treasury Regulations and Other Guidance and including in relevant part: (1) providing capital or equity investments in, or loans to, any Qualified Active Low -Income Community Businesses; (2) purchasing from other Qualified Community Development Entities any loans made by such entities which are Qualified Low - Income Community Investments; (3) providing financial counseling and other services specified by the Treasury Regulations and Other Guidance to businesses located in and residents of, Low - Income Communities; and (4) providing equity investments in or loans to, any Qualified Conununity Development Entity. (n) "Treasury Regulations" or "Treas. Reg." means any temporary, proposed or final regulations promulgated from time to time under the Code. (o) "Treasury Regulations and Other Guidance" shall mean and include any temporary and/or final regulations promulgated under the Code and any guidance, rule or procedure published by the IRS and the CDFI Fund, including without limitation the Community Development Entity Certification Application and the New Markets Tax Credits Allocation Application. ARTICLE III — PURPOSE; FINDINGS; INTENT 3.1 Purpose. The CDE and the City acknowledge and agree that the purpose of this Agreement Page 3 of 10 is to set forth the cooperative relationship between the City and the CDE, the respective duties and obligations thereof and the procedures to be followed by the parties hereto in order to provide Qualified Low -Income Community Investments in the manner of providing financial assistance and resources needed to accomplish the planning, design, development and implementation necessary for the undertaking, carrying out and completion of the purposes and Projects. 3.2 Findings. The City and the CDE hereby ascertain, determine, declare and find that: (a) Projects that further the goals, purposes and objectives of the CDE shall make a significant contribution to the results of the Qualified Low -Income Community Investments of the CDE by providing financial assistance and resources needed to accomplish the planning, design, development and implementation necessary for the undertaking, carrying out and completion of the purposes and Projects. (b) The CDE's undertaking of the program management, technical assistance, project administration, planning, coordination, development and provision of other services related to the Projects shall further the interests of the City and the CDE and will result in better coordination, efficient management and timely implementation of the development of the Projects. (c) It is necessary and appropriate for the City and the CDE to cooperate and proceed as provided herein. 3.3 Intent; Cooperation; Exercise of Powers: The parties hereto agree to cooperate and assist each other in achieving the purpose set forth in this Article. Each of the parties hereto does hereby grant to the other party hereto and does acknowledge that the other party may, in furtherance of the purpose of this Agreement, exercise any and all powers Iegally available to that party, which but for this Agreement, the other party may not be able to exercise and which by virtue of this Agreement may be shared with the other party and be exercised separately and collectively, subject to the limitations of the law. ARTICLE IV — FINANCIAL RESOURCES TO BE PROVIDED BY THE CITY 4.1 City's Commitment to Funding. The City hereby agrees to provide financial support to the CDE for the planning, development, program management, technical assistance, coordination, monitoring and other services needed for the Projects undertaken pursuant to this Agreement. The City and the CDE hereby agree that: Page 4 of 10 4.2 General Fund and Other Financial Support (a) General Fund Support. The amount shall be provided by the City to the CDE for other necessary expenses as agreed to by the City, pursuant to a budget submitted to the City by the CDE and approved by the City. Such budget shall be prepared by the CDE in accordance with the City's annual budget process. Such funds shall be expended as provided herein, unless the CDE has first secured the written permission of the City. (b) Other Financial Support. The City may also provide to the CDE financial support other than the financial resources and support, specifically identified herein. ARTICLE V — PERSONNEL AND OTHER RESOURCES TO BE PROVIDED BY CITY 5.1 Use of City Personnel. (a) The City hereby agrees to provide and designate certain City employees to serve as full-time staff to the CDE for the program management, planning, coordination, technical assistance and other services needed by the CDE. The City Manager is hereby authorized to provide, on the request of the CDE, for the annual detailing to the CDE of full time and part time City employees from the various departments of the City providing services to the CDE. (b) The City employees designated to serve as full time staff to the CDE shall continue to receive all the benefits provided to other City employees related to their employment with the City, except that the day-to-day duties and supervision. of the employees shall be determined and provided by the CDE unless otherwise decided by the City Manager. Such employees shall adhere to all City rules and regulations regarding employment. (c) The City Attorney shall serve as counsel to the CDE unless the CDE otherwise selects a general counsel, provided that nothing herein shall prohibit the CDE from obtaining special counsel. (d) The City Clerk shall serve as the official custodian of records and documents for the meetings of the CDE. The City Clerk or his/her designee shall keep the minutes of the proceedings of the CDE, maintain a journal of all resolutions, publish notice of meetings as required by law and perform all other similar functions on behalf of the CDE. (e) The City shall also provide the CDE with the assistance of such other City employees as may be requested by the CDE, upon the approval of the City Manager. In furtherance of this provision, the City Manager and the CDE shall agree, in writing, on the general scope of services to be provided by such City employees; however, the final approval of any such services shall be within the City Manager's sole discretion. (f) In furtherance of the intent of this § 5.1, the CDE's use of the City personnel shall be detailed in a separate agreement as may be required by the City Manager between the City and the CDE, which agreement shall provide for reimbursement by the CDE for the use of City Page 5of10 employees. Such agreement shall comply with all applicable provisions of § 112 of the Florida Statutes. 5.2 Selection of Certain Staff of the CDE. The CDE is hereby authorized to employ or contract with such persons and Consultants that it deems appropriate and to determine their qualifications, duties and compensation. ARTICLE VI — RESPONSIBILITIES OF THE CDE 6.1 Responsibilities of the CDE. (a) The CDE shall be responsible for the planning, development, program management, technical assistance, coordination and other services necessary for the completion of the Projects. (b) For the financing of projects in the future years as part of the City's annual budget process, the CDE shall prepare and submit to the City a proposed budget, which identifies the projects and activities to be planned, designed, developed, implemented and carried out by the CDE prior to the appropriation, allocation and approval of the City's yearly budget. The budget process of the CDE shall be in accordance with the City's annual budget process. (c) Any amendments, modifications or alterations of the Projects funded by the City shall require the City's prior approval. 6.2 Reports to the City. The CDE shall provide to the City status reports regarding the Projects funded by the City. Such reports shall be provided to the City at such time or times as the City may require. Any reports required pursuant to any Project fund agreement shall be provided in accordance with such agreement. ARTICLE VII — TERMINATION 7.1 Termination This Agreement shall terminate upon the dissolution of the CDE or by resolution of the City Commission. ARTICLE VIII — REPRESENTATIONS; WARRANTIES; COVENANTS 8.1 Representations and Warranties and Covenants of the City The City represents, warrants and covenants to the CDE that each of the following Statements are presently true and accurate: Page 6 of 10 (a) The City is a validly existing municipal corporation organized under the laws of the State of Florida, has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligations under this Agreement and each document contemplated hereunder to which it is or will be a party. (b) This Agreement has been duly authorized by all necessary action on the part of and has been or will be, duly executed and delivered by the City and neither execution and delivery hereof nor compliance with the terms and provisions hereof; (i) requires the approval and consent of any other party, except such ashavebeen duly obtained or as are specifically noted herein; (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or on the date of this Agreement, any other agreement or instrument to which the City is a party; or (iii) contravenes or results in any breach of or default under any other agreement to which the City is a party or results in the creation of any lien or encumbrance upon any property of the City. (c) This Agreement, when entered, constitutes a legal, valid and binding obligation of the City, enforceable against the City in accordance with the terms hereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) There are no pending or, to the knowledge of the City, threatened actions or proceedings before any court or administrative agency of the City or against any officer of the City, which question the validity of this Agreement or any document contemplated hereunder or which are likely in any case or in the aggregate, to materially adversely affect the consummation of the transaction contemplated hereunder of the financial condition of the City. (e) The City encourages the CDE and agrees to assist the CDE, to the extent determined by the City Manager, to apply for and seek state, federal and corporate grants and support. 8.2 Representations, Warranties and Covenants of the CDE. The CDE represents and warrants to the City that each of the following statements is presently true and accurate: (a) The. CDE is a limited liability company, separate and distinct from the City, has all requisite corporate power and authority to carry on its business as now conducted and to perform its obligation under this Agreement and each document contemplated hereunder to which it is or will be a party. (b) This Agreement has been duly authorized by all necessary action on the part of and has been or will be, duly executed and delivered by the CDE and neither the execution and delivery hereof, nor compliance with the terms and provisions hereof; (i) requires the approval Page 7 of 10 and consent of any other party, except such as have been duly obtained or as are specifically noted herein; (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or on the date of this Agreement, any other agreement or instrument to which the CDE is a party; or (iii) contravenes or results in any breach of or default under any other agreement to which the CDE is a party or results in the creation of any lien or encumbrance upon any property of the CDE. (c) This Agreement, when entered, constitutes a legal, valid and binding obligation of the CDE, enforceable against the CDE in accordance with the terms hereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. (d) The CDE shall timely fulfill or cause to be fulfilled, all of its obligations hereunder. (e) The CDE shall provide to the City a copy of any applications made to obtain grants of moneys from resources or entities, other than the City, including the Federal Government. (f) The CDE agrees to apply for state, federal and corporate grants and support. ARTICLE IX — MISCELLANEOUS 9.1 Meeting Notices to the City Manager. The CDE shall provide the City Manager with notices of all of its regular and special board meetings. 9.2 Entire Agreement. This Agreement, its attachments and any related agreements entered as provided herein constitute the entire agreement of the parties thereto. 9.3 Modification or Amendment. This Agreement may be amended in writing by the mutual agreement of the parties. 9.4 Severability. If any obligation of any party to this Agreement is found to be invalid or if any or if any one or more of the covenants, agreements or provisions of this Agreement should be held contrary to any express provision of law or against public policy or shall, for any reason whatsoever, be held invalid, then such covenants, agreements or provisions shall be null and void Page 8 of 10 and shall be deemed separate from the remaining covenants, agreements or provisions of this Agreement, which shall remain in full force and effect. 9.5 Effective Date. This Agreement shall become effective on the date on which this Agreement is Executed by the City and the CDE. 9.6 Assignment. This Agreement shall not be assigned by the CDE, in whole or in part, without the prior written consent of the City, which may be withheld or conditioned, in the City's sole discretion. 9.7 No Member Liability. No covenant, stipulation, obligation or agreement contained herein shall be deemed to be a covenant, obligation or agreement of any present or future member of the governing body or agent or employee of the City or the CDE in its, his/her or their individual capacity and neither the members of the governing body of the City or the CDE, nor any official executing this Agreement shall be liable personally or shall be subject to any accountability for reason of the execution by the City or the CDE of this Agreement or any act pertaining thereto. 9.8 Notices. It is understood and agreed between the parties that written notice addressed to the City Manager or to the Executive Director of the CDE and mailed, certified/return receipt or hand delivered to the address appearing on page one (1) of this Agreement shall constitute sufficient notice to either party. 9.9 Controlling Law. This Agreement shall be governed by the laws of the State of Florida. Proper venue for any proceedings pertaining to this Agreement shall be in Miami -Dade County, Florida. Page 9 of 10 IN WITNESS WHEREOF, the parties hereto have entered into this In -Kind Cooperation Agreement as of the day and year first above written. City of Miami, a municipal corporation of the State of Florida Miami Economic Development Fund, LCC a limited liability company By: By: Pedro Hernandez City Manager ATTEST: By: By: Priscilla A. Thompson City Clerk Approved as to form and correctness: By: Julie O. Bru City Attorney Page 10 of l0