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HomeMy WebLinkAboutExhibitLIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM THIS AGREEMENT (hereinafter the "Agreement") is entered into this day of , 2016, between the Liberty City Community Revitalization Trust (hereinafter referred to as the "Liberty City Trust" or "LCT"), located at 4800 NW 12t1i Avenue, Miami, FL 33127 and Shantel's Jazz Cafe, Inc., a Florida for -profit Corporation (hereinafter referred to as the "BUSINESS") located at 5426 NW 7t11 Avenue, Miami, FL 33127. FUNDING SOURCE: City of Miami AMOUNT: $317,000.00 TERM OF THE AGREEMENT: The term of this Agreement shall be for one year. PROJECT ADDRESS: 5426 NW 7th Avenue, Miami, FL 33127 NOW, THEREFORE, in consideration of the mutual covenants and obligations herein set forth, the parties understand and agree as follows: 1.1 ARTICLE I EXHIBITS AND DEFINITIONS EXHIBITS: Attached hereto and forming a part of this Agreement are the following: Exhibit A Resolution Authorizing Execution of this Agreement Exhibit B Work Program Exhibit C Compensation and Budget Summary Exhibit D Certification Regarding Lobbying Form Exhibit E Certification Regarding Debarment, Suspension and other Responsibility Related Matters (Primary Covered Transactions Form) Exhibit F Crime Entity Affidavit Exhibit G Insurance Requirements 1 1.2 DEFINED TERMS: As used herein the following terms shall! mean: Agreement Records: Any and all books, records, documents, information, data, papers, letters, materials, and computerized or 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 BUSINESS or any subcontractor 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. LCT: The Liberty City Community Revitalization Trust or the Liberty City Trust ("LCT") BUSINESS: Shantel's Jazz Cafe, Inc. ARTICLE II BASIC REQUIREMENTS The following documents must be approved by the LCT and must be on file prior to the LCT's execution of this Agreement: 2.1 Work Program. A Work Program must be submitted by the BUSINESS to the LCT which shall become attached hereto as Exhibit "B" to this Agreement and shall include the following: 2.1.1 Description Section. The description section shall specifically describe the activities to be carried out as a result of the expenditure of funding for this project. Where appropriate, it should list measurable objectives, define the who, what, where, of the project, and in general detail how these activities will ensure that the intended beneficiaries will be served. 2.1.2 Schedule of Activities. The schedule of activities and measurable objectives play an essential role in the monitoring of this project. The schedule should provide projected milestones and deadlines for the accomplishment of tasks in carrying out the Work Program. These projected milestones and deadlines are a basis for measuring actual progress during the term of this Agreement. These items shall be in sufficient detail to provide a sound basis for the LCT to effectively monitor performance by the BUSINESS under this Agreement. 2 2.2 Compensation and Budget Sun -unary. A Compensation and Budget Summary shall be attached hereto as Exhibit "C" and shall include a completed Budget by BUSINESS. ARTICLE III TERMS AND PROCEDURES 3.1 LCT AUTHORIZATION: For the purpose of this Agreement, the LCT will provide fiscal control, programmatic monitoring and modification of this Agreement, as provided herein. 3.2 EFFECTIVE DATE AND TERM: Effective date of this Agreement shall be for one (1) year from the date of execution of this Agreement. The loan shall be forgiven five years from the expiration of this Agreement so long as the BUSINESS remains within the Liberty City community providing services as described in this Agreement. 3.3 OBLIGATIONS OF BUSINESS: The BUSINESS shall carry out the services and activities as prescribed in its Work Program, which is attached and incorporated herein and made a part of this Agreement, in a manner that is lawful, and satisfactory to the LCT, and in accordance with the written policies, procedures, and requirements as prescribed in this Agreement. 3.4 LEVEL OF SERVICE: It is understood and agreed that the BUSINESS shall maintain the level of activities and expenditures in existence prior to the execution of this Agreement. Any activities funded through or as a result of this Agreement shall not result in the displacement of employed workers, impair existing agreements for services or activities, or result in the substitution of funds allocated under this Agreement for other funds in connection with work which would have been performed in the absence of this Agreement. In the event of an unforeseen delay, the BUSINESS shall immediately notify the LCT in writing, giving all pertinent details and indicating when the Work Program shall continue. 3 ARTICLE IV FUNDING AND DISBURSEMENT REQUIREMENTS 4.1 COMPENSATION: The amount of compensation payable by the LCT on behalf of the BUSINESS shall be based on the Work Program and Compensation and Budget Summary Exhibits `B" and "C" respectfully, and attached hereto, which by reference is incorporated into this Agreement. 4.2 INSURANCE: The BUSINESS shall submit proof of insurance and will thereafter at all times during the term hereof, maintain insurance acceptable to the LCT. 4.3 FINANCIAL ACCOUNTABILITY: The LCT reserves the right to audit the records of the BUSINESS at any time during the performance of this Agreement and for a period of five (5) years after its expiration/termination. The BUSINESS agrees to provide all financial and other applicable records and documentation of services to the LCT. Any payment made shall be subject to reduction for amounts included in the related invoice which are found by the LCT, on the basis of such audit and at its sole discretion, not to constitute reasonable and necessary expenditures. Any payments made on behalf of the BUSINESS are subject to reduction for overpayments on previously submitted invoices. 4.4 RECAPTURE OF FUNDS: The LCT reserves the right to recapture funds in the event that the BUSINESS fails to perform in compliance with the terms of this Agreement. In the event of a breach of this Agreement, the LCT may demand that the BUSINESS reimburse the City for funds disbursed to the BUSINESS's project pursuant to this Agreement. ARTICLE V RECORDS AND REPORTS 5.1 The BUSINESS shall establish and maintain sufficient records to enable the LCT to determine whether the BUSINESS has met the requirements for receipt of the loan. At a minimum, the following records shall be maintained by the BUSINESS: 5.1.1 Records providing a full description of each activity assisted (or being assisted) with project funds, including its location (if the activity has a geographical locus), the amount of project funds budgeted, obligated and expended for the activity. 5.1.2 Records demonstrating that each activity undertaken meets one of the criteria set forth in the Work Program. 4 5.2 RETENTION AND ACCESSIBILITY OF RECORDS: 5.2.1 The LCT shall have the authority to review the BUSINESS's records, including project and programmatic records and books of accounts, for a period of five (5) years from the expiration/termination of this Agreement (the "Retention Period"). All books of accounts and supporting documentation shall be kept by the BUSINESS at least until the expiration of the Retention Period. The BUSINESS shall ensure that the Agreement Records shall be at all times subject to and available for full access and review, inspection and audit by the LCT, federal personnel and any other personnel duly authorized by the LCT. 5.2.2 The BUSINESS shall include in all the LCT approved subcontracts used to engage subcontractors to carry out any eligible substantive project or programmatic activities, as such activities are described in this Agreement and defined by the LCT, each of the record - keeping and audit requirements detailed in this Agreement. The LCT shall, in its sole discretion, determine when services are eligible substantive project and/or programmatic activities and subject to the audit and record -keeping requirements described in this Agreement 5.2.3 If the LCT or the BUSINESS has received or given notice of any kind indicating any threatened or pending litigation, claim or audit arising out of the activities pursuant to the project, the activities and/or the Work Program, or under the terms of this Agreement, the Retention Period shall be extended until such time as the threatened or pending litigation, claim or audit is, in the sole and absolute discretion of the LCT, fully, completely and finally resolved. 5.2.4 The BUSINESS shall notify the LCT 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 Agreement Records will be retained. 5.3 PROVISION OF RECORDS: 5.3.1 At any time, upon request by the LCT, the BUSINESS shall provide all Agreement Records to the LCT. The requested Agreement Records shall become the property of the LCT without restriction, reservation, or limitation on their use. The LCT shall have unlimited rights to all books, articles, or other copyrightable materials developed in the performance of this Agreement. These rights include the right of royalty -free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use the Work Program for public purposes. 5.3.2 If the BUSINESS receives funds from, or is under regulatory control of other governmental agencies, and those agencies issue monitoring reports, regulatory 5 examinations, or other similar reports, the BUSINESS shall provide a copy of each such report and any follow-up communications and reports to the LCT immediately upon such issuance, unless such disclosure would be prohibited by any such issuing agency. 5.4 MONITORING: The BUSINESS shall permit the LCT and other persons duly authorized by the LCT to inspect all Agreement Records, facilities, goods, and activities of the BUSINESS which are in any way connected to the activities undertaken pursuant to the terms of this Agreement, and/or interview any clients, employees, subcontractors or assignees of the BUSINESS. Following such inspection or interviews, the LCT will deliver to the BUSINESS a report of its findings. The BUSINESS will rectify all deficiencies cited by the LCT within the specified period of time set forth in the report or provide the LCT with a reasonable justification for not correcting the same. The LCT will determine in its sole and absolute discretion whether or not the BUSINESS's justification is acceptable. At the request of the LCT, the BUSINESS shall transmit to the LCT written statements of the BUSINESS' official policies on specified issues relating to the BUSINESS' activities. The LCT will carry out monitoring and evaluation activities, including visits and observations by LCT staff; the BUSINESS shall ensure the cooperation of its employees and its Board members in such efforts. Any inconsistent, incomplete, or inadequate information either received by the LCT or obtained through monitoring and evaluation by the LCT, shall constitute cause for the LCT to terminate this Agreement. 5.5 RELATED PARTIES: The BUSINESS shall report to the LCT the name, purpose for and any and all other relevant information in connection with any related -party transaction. The term "related - party transaction" includes, but is not limited to, a for -profit or nonprofit subsidiary or affiliate organization, an organization with an overlapping Board of Directors and an organization for which the BUSINESS is responsible for appointing the membership. The BUSINESS shall report this information to the LCT 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 LCT. 6 ARTICLE VI REMEDIES, SUSPENSION, TERMINATION 6,1 REMEDIES FOR NONCOMPLIANCE: The LCT retains the right to terminate this Agreement at any time prior to the completion of the services required pursuant to this Agreement without penalty to the LCT. In that event, notice of termination of this Agreement shall be in writing to the BUSINESS, who shall be paid for those services performed prior to the date of its receipt of the notice of termination. In no case, however, shall the LCT pay the BUSINESS an amount in excess of the total sum provided by this Agreement unless the Agreement is modified, as provided herein. It is hereby understood by and between the LCT and the BUSINESS that any payment made in accordance with this Agreement to the BUSINESS shall be made only if the BUSINESS is not in default under the terms of this Agreement. If the BUSINESS is in default, the LCT shall not be obligated and shall not pay to the BUSINESS any sum whatsoever. If the BUSINESS materially fails to comply with any term of this Agreement, the LCT may take one or more of the following courses of action: 6.1.1 Temporarily withhold cash payments pending correction of the deficiency by the BUSINESS, or such more severe enforcement action as the LCT determines is necessary or appropriate. 6.1.2 Disallow (that is, deny both the use of funds and matching credit) for all or part of the cost of the activity or action not in compliance. 6.1.3 Wholly or partly suspend or terminate the current project funds awarded to the BUSINESS. 6.1.4 Withhold further LCT project funds for the BUSINESS. 6.1.5 Take all such other remedies that may be legally available. Notwithstanding any other provision of this Agreement, if the BUSINESS materially fails to comply with any term of this Agreement, the BUSINESS, at the sole discretion of the LCT, shall pay to the LCT an amount equal to the current market value of any real property, under the BUSINESS's control, acquired or improved in whole or in part with project funds less any portion of the value attributable to expenditures of non -project funds for the acquisition of, or improvement to, the property. Said payment will be considered program income to the LCT. 7 6.2 SUSPENSION: 6.2.1 The LCT may, for reasonable cause temporarily, suspend the BUSINESS's operations and authority to obligate funds under this Agreement or withhold payments to the BUSINESS pending necessary corrective action by the BUSINESS, or both. Reasonable cause shall be determined by the LCT in its sole and absolute discretion, and may include, but is not limited to: (i) Ineffective or improper use of the project funds by the BUSINESS; (ii) Failure by the BUSINESS to materially comply with any term or provision of this Agreement; (iii) Failure by the BUSINESS to submit any documents required by this Agreement; or (iv) The submittal of incorrect or incomplete documents by the BUSINESS. 6.2.2 The LCT may, at any time, suspend the authority of the BUSINESS to obligate funds, withhold payments, or both. 6.2.3 The LCT will notify the BUSINESS in writing of any action taken pursuant to this Article, by certified mail, return receipt requested, or in person delivery with proof of delivery. The notification will include the reason(s) for such action, any conditions relating to the action taken, and the necessary corrective action(s). 6.3 TERMINATION: 6.3.1 Termination Because of Lack of Funds. In the event the LCT does not receive funds to finance this Agreement from its funding source, or in the event that the LCT's funding source de -obligates the funds allocated to fund this Agreement, the LCT may terminate this Agreement upon thirty (30) days' notice in writing to the BUSINESS. Said notice shall be delivered by certified mail, return receipt requested, or in person delivery with proof of delivery. In the event that the LCT's funding source reduces the LCT's entitlement under the Small Business Capital Investment Loan Program, the LCT shall then determine, in its sole and absolute discretion, the availability of funds for the BUSINESS pursuant to this Agreement. 6.3.2 Termination for Breach. The LCT may terminate this Agreement, in whole or in part, in the event the LCT determines, in its sole and absolute discretion that the BUSINESS is not materially complying with any term or provision of this Agreement. The LCT may terminate this Agreement, in whole or in part, in the event that the LCT determines, in its sole and absolute discretion, that there exists an event of default 8 under and pursuant to the terms of any other agreement or obligation of any kind or nature whatsoever of the BUSINESS to the LCT, direct or contingent, whether now or hereafter due, existing, created or arising. 6.3.3 Unless the BUSINESS's breach is waived by the LCT in writing, the LCT may, by written notice to the BUSINESS, terminate this Agreement upon not less than twenty-four (24) hours prior written notice. Said notice shall be delivered by certified mail, return receipt requested, or by in person delivery with proof of delivery. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. The provisions hereof are not intended to be, and shall not be, construed to limit the LCT's right to legal or equitable remedies. ARTICLE VII MISCELLANEOUS PROVISIONS 7.1 INDEMNIFICATION: The BUSINESS shall pay and save the LCT and/or the City of Miami harmless from and against any and all claims, liabilities, losses, and causes of action which may arise out of the BUSINESS activities related to the Work Program or otherwise under this Agreement, including, but not limited to, any and all acts or omissions to act on the part of the BUSINESS and/or any persons acting for or on its behalf, and from and against any and all orders, judgments, or decrees which may be entered against the LCT and/or the City of Miami, and from and against all costs, attorneys' fees, expenses, and liabilities incurred by the LCT and/or the City of Miami in the defense or investigation of any such claims or other matters. 7.2 AMENDMENTS: No amendments to this Agreement shall be binding unless in writing and signed by both parties hereto. Budget modifications shall be approved by the LCT in writing. The BUSINESS shall be entitled to not more than two budget modifications for this project. 7.3 OWNERSHIP OF DOCUMENTS: All documents developed by the BUSINESS under this Agreement shall be delivered to the LCT upon completion of the activities required pursuant to this Agreement and shall become the property of the LCT, without restriction or limitation on their use if requested by the LCT. The BUSINESS agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. 9 It is further understood by and between the parties that any document which is given by the LCT to the BUSINESS pursuant to this Agreement shall at all tirnes remain the property of the LCT and shall not be used by the BUSINESS for any other purpose whatsoever without the prior written consent of the LCT. 7.4 AWARD OF AGREEMENT: The BUSINESS warrants that it has not employed or retained any person employed by the LCT to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the LCT any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. 7.5 NON-DELEGABILITY OR ASSIGNABILITY: The obligations undertaken by the BUSINESS pursuant to this Agreement shall not be delegated or assigned to any other person or firm, in whole or in part, without the LCT's prior written consent which may be granted or withheld in the LCT's sole discretion. 7.6 CONSTRUCTION OF AGREEMENT: This Agreement shall be construed and enforced according to the laws of the State of Florida. 7.7• CONFLICT OF INTEREST: 7.7.1 The BUSINESS covenants that no person under its employ who presently exercises any functions or responsibilities in connection with funds provided for this project has any personal financial interest, direct or indirect, in this Agreement. The BUSINESS further covenants, that in the performance of this Agreement, no person having such a conflicting interest shall be employed. Any such interest on the part of the BUSINESS or its employees must be disclosed in writing to the LCT. 7.7.2 The BUSINESS is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Dade County, Florida (Dade County Code Section 2-11-1) and the State of Florida (Chapter 112, Florida Statutes), and agrees that it shall comply in all respects with the terms of the same. 7.7.3 Procurement. The BUSINESS shall comply with the standards contained within City of Miami Code and all applicable county, state, and federal laws and regulations. 7.7.4 In all other respect, the BUSINESS shall comply with the same said standards. 7.8 NO OBLIGATION TO RENEW: Upon expiration of the term of this Agreement, the BUSINESS agrees and understands that the LCT has no obligation to renew this Agreement. 10 7.9 ENTIRE AGREEMENT: This instrument and its attachments constitute the only Agreement of the parties hereto relating to the project loan funds and sets forth the rights, duties, and obligations of each of the parties hereto to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 7.10 GENERAL CONDITIONS: 7.10.1 All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by in person delivery or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time, upon notice in writing. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. LIBERTY CITY COMMUNITY REVITALIZATION TRUST Elaine H. Black Liberty City Community Revitalization Trust 4800 NW 12TH Avenue Miami, Florida 33127 BUSINESS Edward Colebrook Shantel's Jazz Cafe, Inc. 5426 NW 7t11 Avenue Miami, Florida 33127 7.10.2 Title and paragraph headings are for convenient reference and are not a part of this Agreement. 7.10.3 In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall control. 7.10.4 No waiver of breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. 7.10.5 Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, 11 such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, then same shall be deemed severed, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. 7.11 INDEPENDENT CONTRACTOR: The BUSINESS and its employees and agents shall be deemed to be independent contractors and not agents or employees of the LCT, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the LCT or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Worker's Compensation benefits as employees of the LCT. 7.12 SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 7.13 BUSINESS CERTIFICATION: The BUSINESS certifies that it possesses the legal authority to enter into this Agreement pursuant to authority that has been duly adopted or passed as an official act of the of the BUSINESS, authorizing the execution of the Agreement, including all understandings and assurances contained herein, and directing and authorizing the person identified as the official representative of the BUSINESS to act in connection with this Agreement and to provide such information as may be required. 7.14 LEGAL DISPUTES: In the case of any and all legal disputes, the rule of law which shall govern is that of the State of Florida, venue shall be Miami -Dade County, Florida; and each party shall be responsible for its own attorneys' fees. 12 INTENTIONALLY LEFT BLANK SIGNATURES APPEAR ON THE FOLLOWING PAGE 13 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized on the date above written. "BUSINESS" SHANTEL'S JAZZ CAFE, INC., a Florida for -profit corporation ATTEST: By: By: Name: Title: CORPORATE SEAL ATTEST: Date Name: Owner Date LIBERTY CITY COMMUNITY REVITALIZATION TRUST, a quasi agency of the City of Miami By: By: Todd B. Hannon City of Miami Clerk Date Elaine H. Black, President Date APPROVED AS TO APPROVED AS TO LEGAL FORM INSURANCE REQUIREMENTS: AND CORRECTNESS: By: By: Ann -Marie Sharpe Date Victoria Mendez Risk Management Director City Attorney Date 14 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT B - WORK PROGRAM 15 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT C - COMPENSATION AND BUDGET SUMMARY 16 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT D CERTIFICATION REGARDING LOBBYING FORM 17 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT E CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RELATED MATTERS 18 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT F - CRIME ENTITY AFFIDAVIT 19 LIBERTY CITY COMMUNITY REVITALIZATION TRUST SMALL BUSINESS CAPITAL INVESTMENT LOAN PROGRAM EXHIBIT G - INSURANCE REQUIREMENTS 20