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Agenda 02/09/2010 Item #10C Agenda Item NO.1 OC February g, 2010 Page 1 of 62 EXECUTIVE SUMMARY Recommendation to authorize the Departmeut of Housing and Human Services to work with the County Attorney to take all efforts to recapture U.S. Housing and Urban Development ("HUD") grant funding provided to the Collier County Housing Development Corporation ("CCHDC") now known as the Housing Development Corporation of Southwest Florida ("HDCSWFL") including filing a lawsuit in the 20th Judicial Circuit if necessary for failure to comply with the grant agreement to develop Cirrus Pointe and to seek direction on whether to fund HDCSWFL for future grant awards. OBJECTIVE: For the Board of County Commissioners to authorize the Department of Housing and Human Services to work with the County Attorney to take all efforts to recapture HUD grant funding provided to HDCSWFL including filing a lawsuit in the 20th Judicial Circuit if necessary for failUTe to materially comply with the tenns of the grant agreement dated December 14, 2005 and amended on July 1, 2007, and whether to fund HDCSWFL for futuTe grant awards. CONSIDERATIONS: Collier County Department of Housing and Human Services (HHS) awarded a Home Investment Partnership Program (HOME) Grant to HDCSWFL in the amount of $320,000 for land acquisition and the development of affordable housing units in Collier County. The agreement was effective on December 14, 2005 and amended on July 1, 2007 to provide additional time for completion, The date for final completion was December 31, 2009. To date, HDCSWFL has failed to materially comply with the terms of the agreement. HDCSWFL received $320,000 in grant funds from Collier County which was used for land acquisition. There is no construction started. Section VI (A) of the grant agreement provides: "All HOME funds are subject to repayment in the event the PROJECT does not meet the Project Requirements as outlined above." In the event the subrecipient fails to perform, the agreement provides financial protection to Collier County by requiring repayment of funds. Furthermore, the subrecipient secUTed a mortgage against the subject property. This mortgage is recorded in Official Records Book 4137 Page 0159 of the public records of Collier County and is attached to this item. Prior to the agreement with the County, HDCSWFL enteTed into a Joint Venture Agreement with James J. Fields and Cirrus Pointe Partners, LLC ("VentUTers") on November 30, 2005. This agreement provided that the VentUTer would own the parcel once acquired, and that HDCSWFL would contribute $320,000 toward acquisition. Based on the agreement, the Venturer is responsible for all construction costs. The agreement furtheT provides: "Upon any breach by VENTURER of the terms of this agreement which would prevent CCHDC from receiving, or would require CCHDC to refund, project expenses and/or developer fees it would have received.. ..VENTURER shall be responsible to return $320,000 CCHDC pTOvided..." Collier County's demand and cause of action will be against HDCSWFL based on breach of the grant agreement and amended agreement with the County. Agenda Item No. 10C February 9, 2010 Page 2 of 62 Federal regulations also give the gmnting agency, the County, the discretion to determine whether to fund the non-profit again based on past non-compliance. HHS seeks direction from the Board of County Commissioners on whether to continue to fund HDCSWFL in the future. Staff recommends funding HDCSWFL for futUTe non..construction projects. HDCSWFL has achieved success in other areas including budget and foreclosUTe counseling. HDCSWFL is the only HUD certified counseling agency operating in the Naples area. FISCAL IMPACT: The cost of potential litigation is unknown. Filing fees and service are approximately $400. The case will be handled by the County Attorney's Office. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERA nONS: This item and related contmct documents have been reviewed by the County Attorney's Office. Based on information available to date, HDCSWFL is in breach of the grant agreement with Collier County. HUD Tegulations require the County to attempt to recapture the funds for mateTial non-compliance. This item is legally sufficient for Board action. - CMG RECOMMENDA nON: That the Board of County Commissioners authoTizes the Department of Housing and Human Services to work with the County Attorney to take all efforts to recapture U.S. Housing and Urban Development ("HUD") grant funding provided to the Housing Development Corpomtion of Southwest Florida ("HDCSWFL") including filing a lawsuit in the 20th Judicial Circuit if necessary for failure to comply with the grant agreement to develop Cirrus Pointe and to seek direction on whetheT to fund HDCSWFL for future grant awards. PREPARED BY: Marcy Krumbine, Director, Housing and Human Services 09-FAH-0047114 2 Item Number: Item Summary: Meeting Date: Agenda Item No. 10C February 9,2010 Page 3 of 62 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 10C Recommendation to authorize the Department of Housing and Human Services to work with the County Attorney to take all efforts to recapture U.S. Housing and Urban Development (HUD) grant funding provided to the Collier County Housing Development Corporation(CCHDC) now known as the Housing Development Corporation of Southwest Florida (HOCSWFL) including filing a lawsuit in the 20th Judicial Circuit if necessary for failure to comply with the Grant Agreement to develop Cirrus Pointe and to seek direction on whether to fund HDCSWFL for future grant awards. (Frank Ramsey, Manager, Housing and Human Services) 2/9/20109:00:00 AM Director ~ Housing & Human Services Date A pproved By Marcy Krumbine Public Services Division Human Services 1/28/20105:03 PM Assistant County Attorney Date Approved By Colleen Greene County Attorney County Attorney 1/29/201011:36 AM Kathy Carpenter Executive Secretary Date Approved By Public Services Public Services Admin. 1/291201011:45 AM Approved By Marla Ramsey Public Services Division Administrator ~ Public Services Date Public Services Division 1129/20102:26 PM Date Approved By OMS Coordinator County Manager's Office Office of Management & Budget 1/29120103:06 PM County Attorney Date Approved By Jeff Klatzkow 1/29/20103:16 PM Approved By Date Sherry Pryor Office of Management & Budget Management! Budget Analyst, Senior Office of Management & Budget 1/29/20104:22 PM Date Approved By Mark Isackson Office of Management & Budget Management/Budget Analyst, Senior Office of Management & Budget 2/2120108:57 AM Agenda Item No.1 OC ~ February 9, 2010 Page 4 of 62 Ci> Memorandum To: Pam Wheeler.vlvlano, Clerk's Finance From: Rosa Mulloz, Grants Management Coordinator V Date: Subject: February 13, 2006 HOME Pay Request #1 from ColHer County Housing Development Corp 2004-2005 HOME Project - Cirrus Pointe COHO Operating (HM04-05) Re: Per Pay Request #1 received and logged in our office on Febru3ll' 10, 2006, from Coller County Housing Development Corp, please reimburse them in the amoun'! of $7,500 from HOME funding for COHO Operating as follows: PO 4500056700, account #121-138755-8821011-345551 (reference HOME per resolution 2004-112 item 8B). PIeISlf fax a copy of the check for our files to 403-2331. Please contact me at 659-5713, if you have any questions. Thank you. J.AJJ..~o~~-g1-~cI ~ P..-I7-CJ~ - ~7,~.~CJ Department of Rnancial Adminislratton and Housing Community DewIopment and EnvImnmental S9I1Iices Division Agenda Item No. 10C fRlbeJary 9,2010 1 rage 5 Q1' 62 COLLIER COUNTY HOUSING CORPORATION C/O JEFFERY CECIL STE 202C 895 10TH ST S NAPLES FL 34102 DEVELOPMENT PO~- 4500056700 / 12/21/2005 ConlBCt ponlanfTelephone CDBG Our Tax Exemption no. 85-8012621830C-2 Send invoice to: Board of County Commissioners Attn: Finance Department p.O.Bc,x 413016 Nap1es, Fl. 34101-3016 Your_...,--wlIh us 108694 Please deliver to: FIN1\NCIAL ADMINISTRATION & HOUSING 2800 N HORSESHOE DR NAPLES FL 34104-6919 tJK ft ~ ff r,f h a~. ~ Delivery date: Day 09/30/2006 I- ~erms of delivery: FOB DESTINATION erms of payment: Net 30 Days (20 business days) "em Material Order qty. Description Price per unit Net value Unit 00010 CRDO Operating 1.00 30,000.00 30,000.00000 each 2004-2005 HOME - CHDO Operating BCC 4-13-04 - Resolution 2004-112 - Itffin 8B 121-138755-882100-345551 Total net value excl. tax 30,000.00 THIS ORDER SUBJECT TO THE FOLLOWING CONDmONS: 1. ~~ordIW..~tD-.....~ hyIMIlt....r.-... camp6IticlnoltlDtalatder. No partlllI~w6Il"l'MdewlhGlltPfOl*aulIhodzBI:kJn. 2. Putct.-adlr..... muIt.....on.. .................ar~ 3. TheOounlV ~ 1M rigtltllD CMDeI-v poItian dlhil ardtrlnot.lIIIed.. ~ 4. P..-ntwll be ....anI1in~.... In__. ~or pIIoe ........tI'IUIlbeaulhO/lDd...... ~ cnctaf priortD .tipmridgoadL 5. o.IedhelJO'*" beJll'MlllllY rIIbImId.yaw....... -- cadit'" O. ~dpmmpt~wllblt~tram"'af,**,*oI",arllomdatlloff8ClllptdltWaloel.~Ia". 7. It Is..... thIt~"""'''' CClftIIIIr\tllh.............. 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"-~............... - --- ......-. <-) Agenda Item No. 10C February 9, 2010 Page 9 of 62 OCCUDied bv househOlds at or below 50% of the allla median il1Q)llle as established bv the U,S, DllDartment of HousiDa and Urban DeveIopmenl and at Ieasl an additional 22 units wKI be sold to and occuPied bv households at or below 60% of the allla median inoome as established bv the U,S, Denartmenlof Housina and Urban Develoomenl It is undellllood that the AWARDEE wi! provide a speciliGworking budget and llIa1islkltimelable as reIalBs to: 3lXluislOOn. conslnJelion/lllhabUllalian, soft c:osl8, development fees and other aUowabIe costsfactivltles prior to any fund usage. Said budget shall identify all sources and uses of funds, and aIIocaIe HOME and non-HOME funds to aclivIIIes or line Items, The aforementioned WOlk tasks wi! be perfonned in essentially the manner proposed in the AWARDEE's proposal as llIOl1ived by the AGENCY on MaY 27. 2005, The afolllmentioned document wII be considered 10 be a part and portion of this &glll8ment for referenoe, Sec:Iion IV - Reimbursement of Expenses & Developer Fees A. Project expenses (exduding developerf8e) shall be paid based on vouchers for actual expenses incurred or paid. not to 8XOlllld ThIll8 Hundred artd TWIII1lY Thousand DolI81S S320.ooo.00, RequeeIJ for payment must be submitted by the AWARDEE on forms specified by the COUNTY (attachment '8"). wI1h adequate and proper documentation of eligible costs incUmKI in oomplianoe wI1h 92.206 and necessary for HUO 10lS disbursement raqui'Bments. All such &lIpeI1S8S shall be in conformance to the approved project budget Budget revision and approval shall be required prior to plI'fment of any expenses not confonning to the appRlYild project budget B, The COUNTY shell pay the AWARDEE. as maximum compensation or FEE for the developerSlllVices required pursuant to the Scope of Work thereof. Thirtv Thousand doIl81S ($30.000.00 ) of HOME Funds. Progress payments of FEES (l appIlcab1e) wi not exceed the following cumulative maximum percentages of total dEMlIoper fee at the fol1owing stages of project complelion: Mileatane AlXIuisilion closing Construdion dosing I start of consbuction or rehab 40% 50% oonsbuction completion 60% Construction completion (oerlificate of occupancy) 75% Sustaining ocoupancy {or sale) &compIetlon report 100% If mulllple plOjeclsorbuildings 81'& involved. the deveIoperf8e may be pro-rated to each buBdlng orprojecl. and the appIlcab1e percentage may be appI'llld 10 each, C. The COUNTY r&8IIlV88 the right to inspect records and project sites to detannme that minbursemenl and compensation requests II!lI reasonable. The COUNTY also Ill88rves the right to hold paymllIlt untB adequata documentalion has been provided and revlewlld, Cirrus Pointe Land A<:quillllon CHDO Agreement Page ;} of17 Agenda Item No.1 OC February 9,2010 Page 10 of 62 JOINT VENTURE AGREEMENT This agreement is made as of the 30th day of November, 2005, between JAMES J. FIELDS and CIRRUS POINTE PARTNERS, LLC, a Florida limited liability company, 15544 Monterosso Lane, Naples, Florina 34110, (collectively "VENTURER"), and COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION, a Florida not-for-profit corporation, having its principal office and place of business at 895 10th Street South, Suite 202C, Naples, FL 34102 (hereinafter "CCHDC"). RECITALS 1. VENTURER owns the right to pmchase a parcel of real property located at the comer of Bay Shore Drive and Thomassen Drive in Naples, Collier County, Florida, more particularly described as: All of Lot 103, Naples Groves and Trock Company's Little Farms No, 2, according to the plat thereof, as recorded in Plat Book 1 at Page 27-A, of the Public Records of Collier County, Florida (the "Parcel"). 2. The Parcel is suitable for construction of multi-family housing, i.e., 108 condominium units, 32 of which VENTURER agrees to produce as affordable housing units, as the term is defined in the Agreement Between Collier County and CCHDC, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference (the "CHDO Agreement"). 3, CCHDC has the experience, personnel, and financing necessary to assist VENTURER witb:,the completion, marketing, sale and monitoring of the affordable housing component of the Parcel's proposed development. 4. The parties desire to form a Joint Venture for the development and sale of the Parcel according to the terms of this agreement. For the reasons set forth above, and in consideration of the mutual covenants contained in this agreement, the parties agree as follows: ARTICLE ONE SCOPE AND DESCRIPTION The parties hereby create a Joint Venture for the construction and sale of 108 residential condominium units (the ''Units'') on the Parcel. The venture shall be conducted under the name of ''FieldslHDC", or another name to be selected by VENTURER. and the principal office of the venture will be at 895 10th Street South, Suite 202C, Naples, FL 34102. ARTICLE TWO CONTRIBlITIONS During the term of the Joint Venture, after acquisition of the Parcel, VENTURER will continue to own the Parcel at an agreed to value of One Million Nine Hundred Thousand Dollars Agenda Item No. 10C February 9,2010 Page 11 of 62 ($1,900,000.00). VENTURER will arrange for a construction loan to be: .secured by the Parcel. Prior to any Distribution of Net Cash Flow, pursuant to Section 12.2 hCJrein, VENTURER shall be reimbursed for the agreed to value of the Parcel, the amount of the OIIltstanding construction loan secured by the Parcel, and all additional money VENTURER contributes to the project, plus interest from the date the money is contributed, During the development of the Parcel, title to the Parcel will remain in VENTURER's name, or the name of VENTURER's successors or assigns. CCHDC will contribute toward the purchase of the Parcel the sum of Three Hundred Twenty Thousand Dollars ($320,000.00). VENTURER will constrlllct on the Parcel 108 condominium units, 32 of which shall be affordable housing units, in accordance with the terms of the CHDO Agreement, including but not limited to the number and size of the units, the eligJ.oility of buyers thereof, and the timetable for acquisition of the Parcel, requirements for. construction of the units, and method of sales to end users (the "Project''). ARTICLE THREE CONDUCT OF VENTURE VENTURER shall be responsible for actually carrying out the cOllllStruction of the Project according to the construction contract (the "Contract''), plans, drawings and specifications attached hereto as Exhibit "B". The documents attached hereto as Exhibit "B" shall collectively be referred to as the "Contract Documents". CCHDC shall have the right to review and approve the Contract and other Contract Documents, or any amendments thereto, prior to their execution by VENTURER and CCHDC shall be a third party beneficiary of the Contract and the Contract Documents. VENTURER shall be responsible for obtaining all necessary pcmrits and approvals for the Project and for complying with all applicable ordinances and statutes. To carry out the construction of the Project, VENTURER shall have full authority to order and pay for supplies and materials and to negotiate subcontracts for various aspects of the work, so long as appropriate provisions are inserted in all contracts relative to the work t() ensure that the Project will be completed according to the timetable set fortii in the CHDO Ag1llCment. VENTURER agrees to comply with all laws in construction of the Project including, but not limited to, the Florida Construction Lien Law as set forth in Section 713 Florida Statutes. VENTURER will keep CCHDC informed at aU times as to the progress of the construction of the Project, and CCHDC will be consulted on all decisions regarding the Project, other than those of a routine nature, A failure of the parties hereto to agree on any issue necessary for successfully carrying out the Joint Venture shall result in submission of the question to mediation. If mediation fails, either party may seek relief m the Circuit or County Courts of Collier County, Florida. ARTICLE FOUR DIVISION OF EXPENSES AND VENTURER'S DUTIES The expenses associated with the development and sale of the Project shall be divided between the parties as follows: 2 Agenda Item NO.1 OC February 9, 2010 Page 12 of 62 4,1 CCl'IDC agrees to pay the sum of Three Hundred Twenty Thousand ($320,000.00) toward the cost of acquiring the Parcel in the name of VENTURER or VENTURER's successors or assigns. 4.2 VENTIJRER agrees to pay in a timely manner one hundred percent (100%) of the construction costs, overhead costs, administrative costs, permitting costs, marketing costs, architectural, legal and engineering expenses and all other expenses associated with the construction of the Project and the sale of the condominium units within the Project. ARTICLE FIVE ALIENATION OF INTERESTS Neither VENTURER nor CCHDC may sell, transfer, or pledge such party's interest in this agreement or any part of such interest, without the written consent of the other, which shall . not be unreasonably withheld. Any alienation made in violation of this provision will not be recognized and shall operate to terminate the agreement at the option of the remaining parties. ARTICLE SIX VENTURER'S DUTIES 6.1 VEN1URER shall supervise and direct the work related to the Project, using its best skill and attention. VENTURER shall be solely responsible for and have control over constniction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract Documents. VENTURER shall be responsible for the acts and omissions of VENTURER's employees, subcontractors, their agents and employees, and other persons performing portions of the work under any contract with VENTURER. 6.2 VEN1URER warrants to the parties that materials and equipment furnished under the Contract Documents will be of good quality and new, unless otherwise required or permitted by the Contract Documents, that the work will be free from defects not inherent in the quality required or permitted, and that the work will conform with the requirements of the Contract Documents. VENTURER's warranty excludes remedy for damage or defect caused by abuse, modifications not caused by VENTURER, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the parties, VENTURER shall furnish satisfactory evidence as to the kind and quality of materials and equipment used in the construction of the Project. 6.4 VENTURER shall provide CCHDC or a representative designated by CCHDC access to the Project site during the course of construction for the purpose of inspection or sales. 6.5 VENTURER shall purchase, or shall cause any general contractor hired pursuant to the Contract Documents to purchase, from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Proj eet is located insurance for protection from claims under workers' or workmen's compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and from claims for damages, other than to the won itself: to property which may arise out of or result from the Project, whether such operations be by VENTURER. the general contractor, a subcontractor, or anyone directly or indirectly employed by any of them. Certificates of such Agenda Item No. 10C February 9, 2010 Page 13 of 62 insurance shall be 'filed with the Joint Venture prior to the commencement of any work at the Proj ect site. 6.6 CCHDC and VENTURER waive all rights against each other for damages caused by fire or other perils, to the extent covered by property insurance obtained pursuant to this Article or other applicable insurance, except such rights as they may have to the proceeds of such insurance held by one party as a fiduciary for the Joint Venture or the other party. VENTURER shall require similar waivers by its general contractor and subcontractors. 6.7 VENTURER shall strictly and vigorously enforce the Contract and Contract Documents against the general contractor and will ensure prompt and full compliance with the Contract Docwnents by the general contractor. If general contractor fails to do so, VENTURER will promptly correct work failing to conform to the requirements of the Contract Documents, whether observed before or after substantial completion of the Contract and whether or not fabricated, installed or completed, and shall correct any work: found to be not in accordance with the requirement of the Contract Documents within a period of one year from the date of substantial completion of the Contract. 6.8 The Contract Documents shall provide that if the general contractor defaults or persistently fails or neglects to carry out the work in accordance with the Contract Documents or fails to perform a provision of the Contract Documents, VENTURER or CCHDC, after twenty (20) days' written notice to general contractor and without prejudice to any other remedy VENTURER or CCHDC may have, may make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the general contractor, or, alternatively, at VENTURER's or CCHDC's option, VENTURER or CCHDC may terminate the Contract Documents and may finish the work by whatever method VENTURER or CCHDC may deem expedient. If the unpaid balance under the Contract exceeds costs of finishing the work, such excess shall be paid to general contractor, but if such costs exceed such unpaid balance, general contractor shall pay the difference to VENTURER or CCHDC. 6.9 Further, the Contract Documents shall provide appropriate provisions to ensure that the Project will be completed according to the timetable set forth in the CHDO Agreement. 6.10 Upon any breach by VENTURER of the terms of this agreement which would prevent CCHDC from receiving, or would require CCHDC to refund, project expenses and/or developer fees it would have received, or had received, as described in the CHDO Agreement, VENTURER shall be responsible to return the Three Hundred Twenty Thousand Dollars ($320,000.00) CCHDC provided to the Joint Venture under the terms of this agreement and to provide the CCHDC for Thirty Thousand Dollars ($30,000.00) as liquidated damages (and not as a penalty). The parties agree to this amount as liquidated damages because they both believe it accurately reflects the damage to the CCHDC of a breach by VENTURER Upon return of its contribution to the Joint Venture and its receipt of the full amount of liquidated damages, CCHDC will not sue VENTURER for any other damages. However, if Collier County or any other entity seeks damages against CCHDC because of CCHDC's involvement in the Joint Venture, beyond the refund or denial of funds under the CHDO Agreement, CCHDC may seek indemnification from VENTURER for same. 4 Agenda Item NO.1 OC February 9, 2010 Page 14 of 62 ARTICLE SEVEN TERM Term: The term of the Joint Venture shall be deemed to commence as of November 30, 2005, and shall continue through the first to occur of the following: 7.1 The expiration of fifteen (15) years from the date of commencement of the Joint Venture; 7.2 The purchase of all of the interests in the Joint Venture by one party; 7.3 The sale of all 32 of the affordable housing units on the Parcel; 7.4 Dissolution of the Joint Venture pursuant to the terms and provisions of this agreement; or 7.5 Unless waived as a basis for termination by the other party, in the event (i) a receiver, liquidator or trustee is appointed to take possession of all or substantially all of the party's assets and said appointment is not promptly contested by it and thereafter vacated within thirty (30) days; or (ii) a party makes a general assignment for the benefit of creditors; or (ill) a party shall institute proceedings to be adjudged a voluntary bankrupt or shall consent to the filing of a bankruptcy proceeding against it or shall file a petition or a,nswer or consent seeking reorganization under the Bankruptcy Code or any other similar applicable Federal or State Law, or shall consent to the filing of any such petition; or (iv) a decree or order by a court having jurisdiction over the Parcel shall be entered adjudging a party bankrupt or insolvent or approving as properly filed a petition seeking reorganization of a party under the Bankruptcy Code, or any other similar applicable Federal or State Statutes and such decree or order shall have continued undischarged or utlstayed for sixty (60) days. ARTICLE EIGHT INTEREST OF PARTIES 8,1 Interest: As of the date hereof, the interests of the respective parties in the Joint Venture and the Joint Venture's profits and losses shall be as follows: VENTURER CCHDC 98% 2% The term "profits and losses" shall mean profits in excess of Five Million Nme Hundred Thousand Dollars ($5,900,000.00) and all losses as determined for purposes of preparing the Joint Venture's information return for Federal income tax purposes. For tax purposes, all items of depreciation, gain, loss, deduction or credit shall be allocated to and among the parties in the same percentages in which the parties share profits and losses, ARTICLE NINE MANAGEMENT AND OPERATION OF BUSINESS 9.1 Mana2Clllent and Oueration of Business: VENTURER shall have the responsibility of constructing and selling the Units, except CCHDC shall have the responsibility Agenda Item No. 10C February 9, 2010 Page 15 of 62 for the marketing" and sale of the 32 affordable units, and each shall diligently and faithfully devote such time to the business of the Joint Venture as may be necessary in order to accomplish the development and sale of the Project. 9.2 Except with respect to "Material Transactions", as hereinafter defined, VENTURER shall have, and is hereby granted, all necessary powers to carry out the purposes, business and objectives of the Joint Venture. In furtherance of the foregoing, but not as a limitation hereof, VENTURER may, in the name of the Joint Venture: (a) Employ or retain, on behalf of the Joint Venture, such supervisory personnel, consultants, attorneys, aIChitects, engineers, accountants, personnel, firms and/or corporations as shall be advisable and proper for the operation and management of the Joint Venture, the Parcel, and/or the Project on such terms and for such compensation as VENTURER shall determine, provided such terms are reasonable, and provided further that such services are necessary and proper for the operation of the Joint Veoture. (b) Take such other actions and execute any and all other contracts, agreements and instruments necessary to carry out the intent and purpose of this agreement, except as may otherwise be limited herein. 9.3 Material Transactions: In order for any Material Transaction to be binding and final upon the Joint Venture, such Transaction shall require the written decision and consent of the parties. A "Material Transaction" shall be one of the following transactions: (a) The dissolution and winding up of the Joint Venture; (b) The sale or exchange of the Parcel and/or the mortgage, pledge, or other transfer of the assets of the Joint Venture; (c) The incurrence of indebtedness by the Joint Venture other than incidental matters in the ordinary course of its business, For the purposes of .this provision, incidental matters in the aggregate shall be limited to a total of Twenty-Five Thousand Dollars ($25,000.00). Any indebtedness in excess of such aggregate total shall be considered a Material Transaction; (d) A change in the nature of the business of the Joint Venture; (e) Any change in the number, size, character, price, or finish of the affordable housing units; or (f) A change in the character or concept of the Project from what is contemplated by this agreement. 9.4 Related Parties: Nothing contained in this agreement shall be construed so as to prohibit the parties or any firm or corporalion controlled by or controlling either of the parties from owning, operating or investing in any other real estate construction or business. The parties agree that the parties and any affiliate, subsidiary, partner, member, stockholder and/or employee of either or both of the parties may engage in or possess an interest in any other business vcmture or ventures of any nature and description, independently or with others including, but not liJDited 6 Agenda Item NO.1 OC February 9,2010 Page 16 of 62 to, the ownership, construction, financing, leasing, operating, management, syndication, brokerage and/or development of real property, and the other party hereto shall not have rights by virtue of this agreement in and to said independent ventures or to the income or profits derived therefrom. ARTICLE TEN PROJECT DEVELOPMENT 10.1 Initial Develooment: Following the execution of this Joint Venture Agreement, the VENTURER shall proceed with acquisition of the ParceL 10.2 Develooment Schedule: The Joint Venture shall develop the Units with a projected sell out period of twenty-four (24) months. 10.3 There shall be meetings of the parties to discuss the progress of the Project at such time as determined by the parties, but in no event less often than bi-monthly, [the remainder of this page intentionally left blank] 7 Agenda Item NO.l0C February 9. 2010 Page 17 of 62 ARTICLE ELEVEN BOOKS, RECORDS AND FISCAL MA'ITERS 11.1 CCHDC and VENTURER shall cause to be prepared the following budgets and reports: (a) An annual budget setting forth the estimated receipts and expenditures (capital, operating and other) of the Joint Venture; and (b) A cash flow analysis for the next fiscal year. Said budget and cash flow analysis shall be delivered to parties not less than July 1 of each year, 11,2 Books and Records: A complete set of books and records shall be maintained at all times with respect to the business and financial operations of the Joint Venturc. Said books and records shall reveal in detail all funds received or expended on behalf of the Joint Venture, all assets acquired or disposed of by the Joint Venture and all liabilities incurred or liquidated by the Joint Venture. The Joint Venture's books shall be maintained at the principal office of CCHDC in Collier County, Florida, and each of the parties or their agents shall have access thereto at all reasonable times. If any of the parties shall individually payor satisfy proper Joint Venture expenses pursuant to the rights of the parties under this agreement, said party shall submit a report on a monthly basis with paid bills attached, and the Joint Venture shall reimburse said party within ten (10) days for all said expenses incurred upon behalf of the Joint Venture, as aforesaid. The books and records shall be maintained in accordance with generally accepted accounting principals consistently applied. The fiscal year of the Joint Venture shall be the fiscal year ending December 31 (a "Joint Venture Year"). Within ninety (90) days of the expiration of each Joint Venture Year, a statement shall be:prepared by VENTURER and delivered to CCHDC showing the operation of the Joint Venture business during such preceding Joint Venture Year, as the case may be, and the financial condition of the Joint Venture as of the expiration of such Joint Venture Year. The annual financial statements shall be prepared on an accrual basis and shall be final and binding upon all parties hereunder unless and until written objection is made within forty-five (45) days of the submission of such statements. 11.3 Audit: Either party may, at its option and at its own expense, conduct internal audits of the books, records and accounts of the Joint Venture. Audits may be on a periodic basis. Should an accountant be retained by the Joint Venture, the costs and expenses of said accountant shall be paid for by the J oint Venture. ARTICLE TWELVE DISTRIBUTION AND WITHDRAWALS 12.1 The Net Cash Receipts shall be the balance in excess of Five Million N"me Hundred Thousand Dollars ($5,900,000.00) received for. the sale of the Parcel after deduction for applicable operating expenses, interest, construction costs, taxes, mortgage, and other costs relating to the proj ect as authorized by this agreement. 12.2 Distribution of Net Cash Receints: CCHDC and VENTURER shall ascertain, through the use of standard accounting practices, the ~ount of Net Cash Receipts after the sale Agenda Item No.1 DC February 9, 2010 Page 18 of 62 of the property and'in accordance with the other terms of this agreement, and shall distribute the Net Cash Receipts to the parties in accordance with the following priorities and proportions: VENTURER 98% CCHDC 2% 12.3 No party or affiliate shall render any service to, or receive any fee or other compensation directly or indirectly from the Joint Venture, other than those explicitly provided. for in this agreement. ARTICLE THIRTEEN MISCELLANEOUS 13.1 Joint Venture: This agreement shall be construed to create a Joint Venture for the sole purpose of carrying out the activities and accomplishing the purposes referred to herein, 13.2 Attorney's Fees: The prevailing party in any suit (i) to enforce any provisions of this agreement, and/or (ii) for breach of provisions of this agreement, shall be entitled to an award of reasonable attorney's fees, court costs, and the expense oflitigation both at trial and all appellate levels. 13.3 Insurance and Bonds: To the extent that the Joint Venture has any insurable interest, the Joint Venture shall keep and maintain in force, or cause to be kept and maintained in force policies of insurance of the types, amounts and with insurance carriers or sureties adequate to cover the risks of the business of the Joint Venture, naming the parties as insured or obligee, and/or as additional insured or additional obligee (as the case may be), as their interests may appear, and providing for ten (10) days' written notice to the parties prior to termination, cancellation or mO'dification of such insurance policies. . 13.4 Payment of EXDenses: The Joint Venture shall pay all expenses incurred. by it or on its behalf in connection with the preparation, authorization, and execution of this agreement. Each of the parties shall pay all fees and taxes payable in connection with the party's own individual participation in the Project, as contemplated by this agreement. 13.5 Finders and Brokers: Each party hereby represents and warrants to the other party that neither party has retained any broker, finder or intermediary or has paid or agreed to pay a broker's or finder's fee or commission in connection with the formation of the Joint Venture, In connection with the foregoing, each party (as "Indc:mnitor") shall, and hereby does indemnify and hold harmless the other parties, the Joint Venture and/or the Parcel, as the case may be (the "Indemnitee"), from and against any and all costs, claims, charges and expenses (including without limitation, reasonable attorney's fees and costs of litigation, including appeal) that may be incurred by an Indemnitee as a result of anyone claiming by, through or under an Indemnitor for any said broker's or finder's fee or commission, 13.6 Notices: Any notice given with respect to this agreement shall be deemed given and received on the first to occur of (i) receipt, as evidenced by the return receipt, or (ll) seventy- two (72) hours after the same is deposited in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties as follows: 9 Agenda Item No. 10C February 9, 2010 Page 19 of 62 13,16 Severability of Clauses: If any portion of this agreement is held by competent judicial authority to be illegal or invalid, it is the intention of the parties that the illegal or invalid provision be given its nearest valid legal interpretation and that the balance of the agreement be enforced as drafted. Should it be impossible for a court of competent jurisdiction to give a provision a valid and legal interpretation; then such partial invalidity shall not cause the remainder of this agreement to be or become invalid, and all valid provisions shall remain in effect and shall be severed from any invalid provisions hereof: IN WITNESS WHEREOF, the parties hereto have executed this Joint Venture Agreement as a sealed instrument as of the day and year first written above. /""' l'C~1..u Collier County Housing Development Corporation, a Florida not for profit corporation By: ~4~ , Its Executive Director Cirrus Pointe Partners, LLC, a Florida limited liability company 11 Agenda Item NO.1 OC February 9,2010 Page 20 of 62 Board of County Commissioners - Naplas. Florida .............n... ..,.,,.,.,,..,n11"]'0.- 1 1 J..Q. c: Q :1.11- -.. Agenda Item No. 10C February 9, 2010 Page 21 of 62 -(i) Memorandum Date: Subject: Pam Wheeler-VIViano, Clerk's Finance Rosa Munoz, Grants Management Coordinator ~ December 19, 2005 HOME Pay Request #1 from ColDer County Housing Development Corp 2004-2005 HOME Project - CilTUs Pointe To: From: Re: Per Pay Request #1 received and logged in our office on December 15, 2005, from ColDer County Housing Development Corp, please reimburse them in the amount of $320,000.00 from HOME funding as follows: PO 4500056467, account #121-138755-88210ll-345601 (reference HOME HM-0S-02 & HM 05-06 per resolution 2005-157 item 80). Please fax a copy of ~e check for our files to 403-2331. Please contact me at 659-5713, if you have any questions. Thank you. f.1H- ~ClX<'I3tf.)trjA- lA-If-oS' DO /JOT ;Y] Ai L CJfEcL. f-ftJ Lb foR. fJr'cJc.UP. 1;).05 000 ~ Aft b -~ ~ PO. I Department of Financial Adminislrlllion and Housing Communily Dell9lopment and EnllilDnmental Services Division Agenda Item NO.1 OC February 9, 2010 Page 22 of 62 "ATIACHMENT B" COLLIER COUNTY FINANCIAL ADMINISTRATION AND HOUSING HOME REQUEST FOR PAYMENT SECTION I: REQUEST FOR PAYMENT Subrecipient Name: Collier Countv Housina Development Corooration Subrecipient Address: 895 10111 Street Suite 202C, Naples. FL 34102 Project Name: HOME - CHDO - CIRRUS POINTE Project No: HM 05-02 & 06 Payment Request # / .2 0" Dollar Amount Requested: $ ::;dO, 000- SECTION II: STATUS OF FUNDS 1. Grant Amount Awarded $ $320,000 2. Sum of Past Claims Paid on this Account $ -e- 3. Total Grant Amount Awarded Less Sum 3 ~OJ)-&O Of Past Claims Paid on this Account $ 4. Amount of Previous Unpaid Requests $ e- 5. Amount of Today's Request $ ~ 0/ ()(J1) 6. Current Grant Balance (Initial Grant Amount Awarded Less Sum of !!!! e-- Requests) $ 7. If applicable amount held as retainage to ~ date by the County, if not retained by $ the sub-recipient. I certify that this request for payment has been drawn in accordance with the tenns and conditions of the Agreement between the County and us as the Sub-recipient. I also certify that the amount of the Request for Payment is not in excess of current needs. c~ r1~ 1.;1.-/,,~(.\5"""'" Si~ Date ~..c.....- Tille ~/d-/5-z;J-:5- .~ Authorizing Supervisor Dept Director Jd. Cirrus Poinle Land Acquisition CHDO Agreement Page 17 ofl7 Agenda Item No. 10C February 9, 2010 Page 23 of 62 "ATIACHMENT B" COLLIER COUNTY FINANCIAL ADMINISTRATION AND HOUSING HOME REQUEST FOR PAYMENT SECTION I: REQUEST FOR PAYMENT Subrecipient Name: Collier Countv Housina Develooment Corporation Subrecipient Address: 895 10U. Street. Suite 202C. Naoles, FL 34102 Project Name: HOME CHOO - CIRRUS POINTE Project No: HM 05-02 & 06 Payment Request # / Dollar Amount Requested: $ 3cJ 0, 0 0 0 o~ SECTION II: STATUS OF FUNDS 1. Grant Amount Awarded $ $320,000 2. Sum of Past Claims Paid on this Account $ if 3. Total Grant Amount Awarded Less Sum 3 "d--OJxrO Of Past Claims Paid on this Account $ 4. Amount of Previous Unpaid Requests $ e--- 5. Amount of Today's Request $ 3(), () I (;1y() 6. Current Grant Balance (Initial Grant Amount Awarded Less Sum of ;ill -e-- Requests) $ 7. If applicable amount held as retainage to ~ date by the County. if not retained by $ the sub-recipient. I certify that this request for payment has been drawn in accordance with the tenns and conditions of the Agreement between the County and us as the Sub-recipient. I also certify that the amount of the Request for Payment is not in excess of current needs. .~ ;J~ ~; -~~(~/ ~~...... Title Authorizing G ~ /,2 - /.5' --O~- Supervisor Dept Director I;;;' Cirrus Pointe Land Acquisition CHDO Agreement Page 17 ofl7 Your vendor number with us 108694 COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION C/O JEFFERY CECIL STE 202C 895 10TH ST S NAPLES FL 34102 Please deliver to: FINANCIAL ADMINISTRATION & HOUSING 2800 N HORSESHOE DR NAPLES FL 34104-6919 Agenda Item NO.1 OC Feb!"/Ii8Y 9,2010 Ppg'124 of 6l Purchase order '. PO numberJdate 4500056467 / 12/15/2005 ContIIct ponIC<lIT eIopI1one CDBG Our Tax Exemption no. B5-B012621B30C-2 Send invoice to: Board of County Commissioners Attn: Finance Department P.O.Box 413016 Naples, Fl. 34101-3016 Delivery date: Day 09/30/2006 ()~ I~ d v:v f-d j-fl J J.fltJ;W ktfJf--JeiJ;- I / d. ) ~ / 60 ~ Description Terms of delivery: FOB DESTINATION Terms of payment: Net 30 Days (20 business days) lIem Material Order qty. Unit Price per unit 00010 CHDO Set-Aside 115,000.00000 each Net value 1. 00 115,000.00 Land Acquisition - Cirrus Point HM 05-06 CHDO Set-Aside 121-138755-882100-345601 BCC 4-12-2005 - Resolution 2005-157 - Item 8D THIS ORDER SUBJECT TO THE FOLLOWING CONDITIONS: 1. ""'" ~ Older. 00MideNd1D .......c:annct Paynwltwll be ......upon oompMtion dll:Ml onIer. No ~rtiIlI payments will be rMdewilhoutproper8Ulhorintion. 2. Purcl1ueorder number m_lIPPMron all invac..,~,or~ 3. lMeounty......a.righttDc:anc.lMypartlonalthlaorderIfMltfllledDIIP8dfied 4. ~wiII be mMe ontyklllCCOrdlincewlth thiaorder, ~ tlrprQ ~ mlat be lIUlhorind by the Purehuirr; CitwCtorpriortoahlpl'Mtltotgooda. So ~ goodiI will be pramptly rm.rMd 1It)GW..-.nd c:ndI r.ken. 6. rMcouna of prompt peyment:wtll be ~ fn>>n c!* of I'KlMfIt of goods <<from date of receipt aI irMlicM, wh~ i&.... 7. It . 1IIIgrMd, lhetgooda deIilMNd shall compIywllh.U t.IefaI, ..., or Iol*... nlIIdMJtMNIrJ, .xl tMtthe Vendor shall ~ ___ or dUns brought Md -. twmIMa the buyw ffom x.r.. .,.,., ordw' by.-..on of.... or ~ infrIQementt. 01...... pUent. 8. t.Jr-.theVendDr~~, in/IIIIDn aI'MWklhall ClCInalIIU ~ althe PUlChD8QlderinDllldlng'" attachments. 9. TheV....~b:I..mbu~altmIeI..... in IlCCOrlWIctowlth F\oria SbIluMChaptw 112081, PerOiem.nd T.-I8q:lenIlMdPublic 0fIi0Ms. ~ Md.~ perwon&. 10.AII~tDbeFOBl:llIMInalkln. Agenda I~No. 10C Febri.;3~t9, 2010, Page 25 of 62" PO number/date 4500056467 / 12/15/2005 Item Material Order qty. Description Unit Price per unit Net value 00020 Affordable Housing Development 205,000.00000 each 1.00 205,000.00 Land Acquisition - Cirrus Point HM 05-02 Affordable Housing Development 121-138755-882100-345601 Bce 4-12-2005 - Resolution 2005-157 - Item 8D Total net value excl. tax 320,000.00 Agenda Item NO.1 DC February 9,2010 Page 26 of 62 AGREEMENT BETWEEN COLLIER COUNTY AND COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION Catalogue of Federal Domestic Assistance #14.239 HUD Grant # M.05.UC.12.0017 THIS AGREEMENT MADE this /!f!!Jday 01 /)'!c/.ndu/", ~1ly and between Collier County, hereinaller relerred to as the "COUNTY", and Colllar County Housina DavaloDmant COl'Doration, a nonprof~ corporation hereinaller referred to as the "AWARDEE" and which is located at: 895 10~ Street South, Sutte 202C Naoles, FL 34102, WITNESSETH WHEREAS, the COUNTY is the recipient 01 HOME Investment Partnerships Program Funds from the U,S, Department of Housing and Urban Development (HUD), including funds that are reserved for the use of Community Housing Development Organizations (CHDOs); and WHEREAS, the AWARDEE has been certHied wtth the COUNTY as a CHDO, and has submitted a proposal for use of CHDO funds for a CHDO-eligible project under HOME regulations; NOW, THEREFORE in consideration 01 the mutual covenants and obligations herein contained, including the Attachments, and subject to the terms and conditions hereinaller stated, the parties hereto understand and agree as lollows: Section 1- Definitions A. AGENCY - is hereby defined as the Ooerauonal Suooort and Housina Deoartment, the HOME administering agency of the Collier County, For the purpose 01 this Agreement and all administration of HOME lunds, the AGENCY shall act on behalf 01 the COUNTY in the execution and fiscal and programmatic control 01 this agreement. The term "Approval by the COUNTY" or like term used in this Agreement shall in no way relieve the AWARDEE from any duties or responsibilities under the terms of this Agreement, or obligation Slate or local law or regulation. B, DIRECTOR. is hereby defined as the Director of the Ooerational Suooort and Housing Deoartment of the County. C, FEE - is hereby defined as the amount of money the COUNTY agrees to pay and the AWARDEE agrees to accept as payment in full for all the prolessional, technical and construction services rendered pursuantto this Agreement to complete the WORK as lurther defined in Section 11I- SCOPE OF WORK, hereof. D. WORK - is hereby defined as all the professional, technical and construction services to be rendered or provided by the AWARDEE as described here. E. PROJECT. is defined in Section IV below, F. HOME - is hereby defined as the HOME Investment Partnerships Program as described in 24 CFR Part 92, under the authority of 42 U.S.C. 3535 (d) and 12701 -12839, Cirrus Pointe Land Acquisition CHDO Agreement Page 1 of16 Agenda Item No. 10C February 9,2010 Page 27 of 62 Section 11- Term The AWARDEE expressly agrees to complete all work required by this agreement in accordance with the timetable set forth. ro ae Intarim Milestones! Deadlines (list beloW\: Close on Land 1/31/06 Infrastructure Work Beains 5/30/06 Construction of 3 Buildinos 8/31/06 Construction of 3 Buildinos 11/30/06 Construction of 3 Buildinas 2/28/07 All Un~s C/O 3/31/07 All Affordable Units Occupied by Qualified 5/31/07 Buvers 100% Proiect Comoletion Date 5/30/07 In addition, this project is subject to ongoing compliance requirements of HOME for 2- years from the date of in~ial occupancy. During this compliance period, the AWARDEE will assure continued compliance w~h HOME requirements, For homebuyer units this includes mon~oring units for principal residency and recapture of funds at time of resale, For rental units, this includes ongoing property standards, occupancy and rent limits compliance. ---, Timely completion of the work specified in this agreement is an integral and essential part 01 perfonnance, The expenditure of HOME funds is subject to Federal deadlines and could result in the loss of the Federal funds, By the acceptance and execution of this agreement. ~ is understood and agreed by the AWARDEE that the PROJECT will be completed as expeditiously as possible and that the AWARDEE will make every effort to ensure thallhe project will proceed and will no1 be delayed. Failure to meet these deadlines can result in cancellation of this contract and the revocation of HOME funds. Since itis mutually agreed that time is of the essence as regards this agreement. the AWARDEE shall cause appropriate provisions to be inserted in all contracts or subcontracts relative to the wor1l tasks required by this agreement, in order to ensure that the PROJECT will be completed according to the timetable set forth. It is intended that such provisions inserted in any subcontracts be, to the fullest extent permitted by law and equity, binding for the benefrt of the COUNTY and enforceable by the COUNTY against the AWARDEE and its successors and assigns to the project or any part thereof or any interest therein, In the event the AWARDEE is unable to meet the above schedule or complete the above services because of delays resulting from Acts of God, untimely review and approval by the COUNTY and other governmental authorities having jurisdiction over the PROJECT, or other delays that are not caused by the AWARDEE, the COUNTY shall grant a reasonable extension of time for completion of the WORK. It shall be the responsibility of the AWARDEE to notify the COUNTY promptly in writing whenever a delay is anticipated or experienced, and to inform the COUNTY of all facts and details related to the delay. Section 11I- Scope of Work The AWARDEE, in close coordination with the COUNTY, shall perform all professional services (the 'WORK") necessary to - complete the development and occupancy of the following project in full compliance with the terms of this Agreement Land Acouisition of aDDroximatelv 10 acres in Collier County on which a mixed income condominium development will be buill, The development shall consist of 108 owner-occupied units of which at least 10 units will be sold to and Cirrus Pointe Land AcquiSition CHDO Agreement Page 2 of 16 M/leslone P 'ect Start 0 t Dead/ine 12/1/05 Agenda Item NO.1 OC February 9,2010 Page 28 of 62 occuoied bY households at or below 50% of the area median income as established bY the U.S. Deoartment of Housina and Urban Develooment and at least an additional 22 unns will be sold to and occuoied by households at or below 60% of the area median income as established bv the U,S, Deoartment of Housina and Urban Develooment. It is understood that the AWARDEE will provide a specific working budget and realistic timetable as relates to: acquisition, construction/rehabilitation, soft costs, development fees and other allowable costs/activities prior to any fund usage, Said budget shall identify all sources and uses of funds, and allocate HOME and non-HOME funds to activities or line nems, The aforementioned Work tasks will be perfonned in essentially the manner proposed in the AWARDEE's proposal as received by the AGENCY on May 27,2005. The aforementioned document will be considered to be a part and portion of this agreement for reference. Section IV - Reimbursement of Expenses & Developer Fees A. Project expenses (excluding developer fee) shall be paid based on vouchers for actual expenses Incurred or paid, not to exceed Three Hundred and Twenty Thousand Dollars $320,000.00. Requests for payment must be submitted by the AWARDEE on fonns specified by the COUNTY (attachment "8"), wnh adequate and proper documentation of eligible costs incurred in compliance with 92,206 and necessery for HUD 1015 disbursement requirements, All such expenses shall be in conformance to the approved project budget. Budget revision and approval shall be required prior to payment of any expenses not confonning to the approved project budget. )f;/ B. The COUNTY shall pay the AWARDEE, as maximum compensation or FEE for the developer services required pursuanllo the Scope of Work thereof, Thlrtv Thousand dollars ($ 30.000.00 ) of HOME Funds. Progress payments of FEES (if applicable) will not exceed the following cumulative maximum percentages oltotal developer fee at the following stages of project completion: Milestone Max. Cumulative Developer Fee % AcquiSition closing 25% Construction closing! start of construction or rehab 40% 50% construction completion 60% Construction completion (certificate of occupancy) 75% Sustaining occupancy (or sale) & completion report 100% If multiple projects or buildings are involved, the developer fee may be pro-rated to each building or project, and the applicable percentage may be applied to each. C. The COUNTY reserves the right to inspect records and project sites to detennine that reimbursement and compensation requests are reasonable. The COUNTY also reserves the right to hold payment until adequate documentation has been provided and reviewed. Cirrus Pointe Land Acquisition CHDO Agreement Page 3 ofl6 B. iz- C. D. Agenda Item No. 10C February 9,2010 Page 29 of 62 D. The AWARDEE may submit a final invoice upon completion. Final payment shall be made after the COUNTY has determined that all services have been rendered, files and documentation delivered, and units have been placed in service in full compliance with HOME regulations, including submission of a completion report and documentation of eligible occupancy, property standards and long-term use restrictions, E. The COUNTY shall have the righllo review and audhll records of the AWARDEE pertaining to any payment by the COUNTY. Said records shall be maintained for a period of five years after completion, Section V - Project Requirements The AWARDEE agrees to comply with all requirements of the HOME Program as stated in 24 CFR Part 92, including but notlim~ed to the following, A. No HOME project funds will be advanced, and no costs can be incurred, until the COUNTY has conducted an environmental review of the proposed project site as required under 24 CFR Part 56, The environmental review may result in a decision to proceed with, modify or cancel the project. Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commllment of funds or approval may occur only upon satisfactory completion of environmental review and receipt by the COUNTY of a release of funds from the U,S, Department of Housing and Urban Development under 24 CFR Part 956, Further, the AWARDEE will not undertake or commll any funds to physical or choice-Iimlling actions, including property acquisition, demolition, movement, rehabllllation, conversion, repair or construction prior to the environmental clearance, and must indicate that the violadon of this provision may resu~ in the denial of any funds under the agreement. The HOME funds advanced to the PROJECT will be secured by a note and mortgage, and in the case of a rental project, a deed covenant as required by 24 CFR Part 92. The AWARDEE will ensure that any expendllure of HOME funds will be in compliance with the requirements at 92,206, and acknowledges that HOME funds will only b~f9vide.d as reirnb..!lrsement for eligible costs incurred, in~udin!!.~ctu~~anditul1l.s()r in~ices!OI'\V()rk completed, --~- --------- - - If the project is to be owner-occupied, the AWARDEE will ensure that all HOME assisted units will be in COrJ'lliiance with 24 CFR 92,254, including documenting that the property is eligible under 92.254(a)(I) - (2). and will maintain compliance during the minimum corJ'llliance period. (If the property also contains a renial un~ assisted with HOME funds, the AWARDEE will ensure that occupancy complies with the requirements of 92,254(a)(6).) lithe project is to be rental, the AWARDEE will ensure that that project is eligible under 92,214, and that II will meat the applicable standards of 24 CFR 92.252 - 253 at occupancy and for the minimum compliance period. E. The designated HOME-assisted units of this PROJECT wUl meet the affordability requirements as found in 24 CFR 92.252 (rental) or 92,254 (owner-occupied) as applicable, The AWARDEE shall collect and maintain Project beneficiary informadon pertaining to household size, income levels, anticipated household income, racial characteristics, and the presence of Female Headed Households in orderto delermine low and moderate-income benefrt in a cumulative and individual manner through a procesS approved by the AGENCY. Income documentation shall be in a form consistent with HOME requirements as stated in the HUD Technical Guide for Determinino Income and Allowances Under the HOME ProQram, F. In the selection of occupants for PROJECT units, the AWARDEE shall comply with all non-discrimination requirements of 24 CFR 92.350. If tha project consists of 5 or more un~s, the AWARDEE will implement affirmative Cirrus Pointe Land Acquisition CHDO Agreement Page 4 of 16 Agenda Item NO.1 OC February 9,2010 Page 30 of 62 marketing procedures as required by 24 CFR 92.351. Such procedures are subject to approval of the AGENCY. G. If the PROJECT is occupied at the time of this commitment, the AWARDEE will comply with the relocation requirements of 24 CFR 92,353. H. The AWARDEE shall assure compliance with 24 CFR 92.251 as relates to Property Standards and Housing Quality Standards (HQS), Accessibility Standards under 24 CFR 92.251 (a)(3) as applicable, and Lead Based Paint Requirements as found in 24 CFR 92.355 and 24 CFR Part 35. If the PROJECT is to be owner.occupied, the AWARDEE shall assure that any NOTES and MORTGAGES recorded for homebuyers shall be in compliance with 24 CFR 92,254 and that the AWARDEE will monitor each un~ for principal residency (under 92.254(a)(3)) and resale/recapture (under 92.254 (a)(4) - (5)), J. The AWARDEE will provide any documentation required by the AGENCY regarding match as may be required to document match for purposes of the HOME program. K. If any project under this agreement involves the construction or rehabilitation of 12 or more HOME-assisted units, the AWARDEE shall comply with the provisions of the Davis-Bacon Act (40 U.S.C. 276 a to a. 7) as supplemented by Department of Labor regulations (29 CFR, Part 5), as amended, L If the property is sold through a lease-jJurchase agreement, the AWARDEE will ensure compliance with 92.254(a)(7), as modified by the 1999 Appropriations Act, Section 599B. M. The AWARDEE will be monitored by the AGENCY for compliance with the regulations of 24 CFR 92 for the compliance period specified above. The AWARDEE will provide reports and access to project files as requested by the COUNTY during the PROJECT and for Five (5) years after completion and closeout of the AGREEMENT. Section VI - Repayment of Loan A. All HOME funds are subject to repayment in the event the PROJECT does not meet the Project Requirements as outlined above. B. It is understood that upon the completion of the PROJECT, any HOME funds reserved but not expended under this agreement will revert to the COUNTY. C. If the PROJECT is rental, funds will remain a deferred loan for the period of~, at which time the loan may be forgiven or extended in the sole discretion of the COUNTY for another term, Sale' of the property to another party may occur only with the approval of the COUNTY, and the purchaser shall assume all obligations of the AWARDEE under this agreement, the note and mortgage, and the deed covenants, Provisions in those documents will provide for the extinguishment of the requirements only in the event of a third.party foreclosure or deed in lieu of foreclosure. -Not Applicable. D. If the PROJECT is for owner.occupancy,the AWARDEE shall lend the HOME funds to the individual buyers in an amount sufficient to make the purchase affordable, Any HOME funds that reduce the price of the property below the fair market value of the property shall be secured by a HOME note and mortgage as required in 92254(a)(5)(II), using the note and mortgage prescribed or approved by the AGENCY (and consistent with the method of recapture identified in the COUNTY's Consolidated Plan.") 1) All net sales proceeds from the sale of units are considered to be either. _ Program Income and must be retumed to the AGENCY as repayment of the HOME loan; Q! Cirrus Pointe land Acquisition CHDO Agreement Page 5 of 16 Agenda Item No. 10C February g, 2010 Page 31 of 62 JL CHDO proceeds that may be retained by the AWARDEE and used in conformance with 24 CFR 92,3oo(a)(2), or as specified below: NIA 2) Prior to each closing, the AWARDEE will provide to the AGENCY the estimated settlement statement, along with a reconciliation statement and the draft note and mortgage, The reconciDation statement shall account for the pro-ration of HOME project funds to the individual unit, and identify those funds that are to be lent to the buyer as 'Buyer subsidies' secured by the HOME note and mortgage, the pro-rated HOME development funds that are to be forgiven as 'Development subsidies', and the amount of developer fee or CHDO seles proceeds to be retained from settlement funds, 3) All resale proceeds that are received from buyers as they resell the properties during the compiance period 10 other buyers shall be considered 'Recaptured Funds' under 24 CFR 92,254(a)(5)(iijA)(5) and muslbe repaid to the COUNTY for use in eligible HOME projects as required by 24 CFR 92,503, The AWARDEE shall promptly notify the AGENCY of such transactions and will prompUy convey any Recaptured Funds to the AGENCY, Section VII- CHDO Provisions It is understood that the AWARDEE has certified that ~ is and will maintain CHDO (Community Housing Development Organization) status for the term of the PROJECT/AGREEMENT In accordance with 24 CFR 92. AWARDEE agrees to provide information as may be requested by the AGENCY to document its continued compliance, including but not rlmited to an annual board rooster and certification of continued compliance, Any funds advanced as CHDO pre-development funds must be in compliance with 92,301, and are forgivable only under the terms in 92,301, Any funds advanced to the CHDO as CHDO Operating Expenses must be expended in compliance with 24 CFR 92,208, Any funds that the CHDO is permitted to retain as CHDO proceeds from this project shall be used in compliance with 24 CFR 92.3oo(a)(2) or as specified in this Agreement if the project is rental, the AWARDEE will create and follow a tenant participation pian as required in 24 CFR 92.303, Section VIII - Procurement Standards The AWARDEE shall establish procurement procedures to ensure that materials and services are obtained in a cost- effective manner. When procuring for services to be provided under this agreement, the AWARDEE shall comply at a minimum with the nonprofrt procurement standards at 24 CFR 84.40 - .48, In addition, the following requirements are Imposed on any procurement under this PROJECT: nla In addition, ~ is understood that any AWARDEE that can be considered to be a religious organization shall abide by all portions of 24 CFR 92.257. Cirrus Pointe Land Acquisition CHDO Agreement Page 6 of 16 1- Agenda Item NO.1 OC February 9,2010 Page 32 of 62 Section IX - Conflict of Interest Provisions HOME conflict of intarast provisions, as slatad in 92,356(n, apply to the award of any contracts undertha agreament and the selaction of tanant households to occupy HOME-assisted units, Exceptions must be requested bytha AWARDEE and the AGENCY grant axceptions as permitted by regulation. In addition, the COUNTY also has electad to apply the conflict of interest provisions in 24 CFR 92.356(b) - (a) to this project, Therefore, the award of contracts and tha award of M!Y unit banafits to covered parties of tha AWARDEE are subject to prior disclosure by the AWARDEE and an exception from the COUNTY as ouUlnad In 92.356(d) - (a). The AWARDEE warrants and covenants that it presently has no interest and shall not acquire any interest, directiy or indirectly, which could conflict in any manner or degree with the performance of its services hereunder, The AWARDEE further warrants and covenants that in the performance of this contract, no person having such interest shall be employed. No member or Dalegate to the Congrass of the Un~ed States shall be permitted to any share or part of this contract or any benefit to raise harefrom. No member, officer or employee of the COUNTY; or its designees, or agents; or member of the ColliarCounty Board of County Commissioners; and no other public official of the COUNTY who axercises any functions or responsibilities with respect to the program during his tenure or for one (1) year thereafter, shall have any interest direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed undar this agreement. Section X - COUNTY Responsibilities The COUNTY shall furnish the AWARDEE with the following services and information from existing COUNTY records and COUNTY files: A. The COUNTY shall provide to the AWARDEE information regarding ~s requirements for the PROJECT, B, Tha COUNTY will provide the AWARDEE with any changes in HOME regulations or program limilsthat affect the project, including but not limited to income limits, property value limits and rent Ilm~s. C. The COUNTY will conduct progress inspections of work completed to protect its interests as lender and reguiatory authority for the project, and will provide information to tha AWARDEE ragarding any progress inspections or monitoring to assist ~ in ensuring compliance. The COUNTY's review and approval of the WORK will relate only to overall compliance with the general requirements of this Agreement and HOME regulations, and all COUNTY regulations and ordinances. Nothing contained herein shall relieve the AWARDEE of any responsibility as provided under this Agreement. Section XI- Equal Employment Opportunity During the performance of this contract, the AWARDEE agrees as follows: A. The AWARDEE will not discriminate against any employee or applicant for empioyment because of race, color, religion, sex, or national origin(s), The AWARDEE will take affirmative action to ensure the applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origln(s). Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compansation; and selection fortraining, including apprenticeship. The AWARDEE agrees to post in conspicuous places, available Cirrus Polnte Land Acquisition CHDO Agreement Page70fl6 Agenda Item No. 10C February 9,2010 Page 33 of 62 to employees and applicants for employment, notices to be provided by the contracting officer of the COUNTY selling forth the provisions of this nondiscrimination clause, B, The AWARDEE will, in all solicitations or advertisements for employees placed by or on behalf of the AWARDEE, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin, C. The AWARDEE will send to each labor union or representative of workers with which has a collective bargaining agreement or other contract or understanding, a notice to be provided by the COUNTY'sconb'acting ollicer, advising the labor union or worke(s representative of the AWARDEE's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies ofthe notice in conspicuous places available to employees and applicants for employment. D, The AWARDEE will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. E. The AWARDEE will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will perm~ access to its books, records, and accounts by the AGENCY and the Secretary of Labor for purposes of investigation to ascertain compliance w~h such rules, regulations, and order. F, In the event the AWARDEE is found to be in noncompliance with the nondiscrimination clauses of this contract or w~h any of such rules, regulations or orders, this contract may be canceled, terminated or suspended in whole or in part and the AWARDEE may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965 or by rule, regulations, or order of the Secretary of Labor or as otherwise provided by law. G. The AWARDEE will include the provisions of paragraphs (a) through (g) of this agreemenlin every subcontract or purchase order unless exempted by rules, regulations, or ordersofthe Secretary of Laborissued pursuanttoseclion 204 of Executive Order 11246 of September 24, 1965, so that such prOvisions will be binding upon each subcontractor or vendor, The AWARDEE will take such action with respect to any subcontract or purchase order as the AGENCY may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, thatin the event the AWARDEE becomes involved in, or is threatened with litigation with a subcontractor or vendor as a resull of such direction by the AGENCY, the AWARDEE may request the Un~ed States to enter into such litigation to protect the interest of the United States. Section XU- Labor, Training & Business Opportunity The AWARDEE agrees to comply with the federal regulations governing training, employment and business opportunities as follows: A. II is agreed that the WORK to be performed under this agreement is on a project assisted under a program providing direct Federal financial assistance from the US Department of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S,C, 1701 u, as well as any and all applicable amendments thereto, Section 3 requires that, to the greatest extent feaSible, opportun~les for training and employment be given low and moderate income residents of the project area, and that contracts for work in connection with the project be awarded to business concerns which are located In, or owned in substantial part by persons residing in the project area. Cirrus Pointe Land Acquisition CHDO Agreement Page 8 of16 Agenda Item NO.1 OC February 9,2010 Page 34 of 62 B. The AWARDEE shall comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 Code of Federal Regulations and all applicable rules and orders of the AGENCY of Housing and Urban Development issued thereunder as well as any and all applicable amendments thereto prior to the execution of this contract as well as during the tenn of this contract. The AWARDEE certifies and agrees that n is under no contractual or other disability, which would prevent it from complying with thesa requirements as well as any and all applicable amendments thereto, C, The AWARDEE wUl include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the COUNTY. take appropriate action pursuant to the subcontractor upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, in 24 Code of Federal Regulations, The AWARDEE will not subcontract with any subcontractor where n has notice or knowledge that the latter has been found in violation of regulations under 24 code of Federal Regulations and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to corlllly with these requirements as well as with any and all applicable amendments thereto. D. Compliance wnh the provisions of Section 3, the regulations set forth in 24 Code of Federal Regulations and all applicable rules and orders of the AGENCY of Housing and Urban Development issued thereunder prior to the execution of the contract shall be a condition precedent to federal financial assistance being provided to the PROJECT as well as a continuing condnion, binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill thesa requirements shall subject the AWARDEE or recipient. its contractors and subcontractors, its successors, and assigns to those sanctions specified by 24 Code of Federal Regulations as well as with any and all applicable amendments thereto. Section XIII- Compliance with Federal, State & Local Laws The AWARDEE covenants and warrants that it will comply with all applicable laws, ordinances, codes, rules and regulations of the state local and federal govemments, and all amendments thereto, including, but not limited to; Tille 8 of the Civil Rights Act of 1968 PL,9D-284; Executive Order 11 063 on Equal Opportunity and Housing Section 3 of the Housing and Urban Development Act of 968; Housing and Community Development Act of 1974, as well as all requirements set forth in 24 CFR 92 of the HOME INVESTMENT PARTNERSHIP PROGRAM, The AWARDEE covenants and warrants that it will indemnify and hold the COUNTY forever free and hannless with respect to any and all damages whether directJy or indirectly arising out of the provisions and maintenance of this contract. The AWARDEE agrees to comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U,S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). The AWARDEE further warrants and agrees to include or cause to be included the criteria and requirements of this section in every non-exempt subcontract in excess of $1 00,000, The AWARDEE also agrees to take such action as the federal, state or local govemment may direct to enforce aforesaid provisions. Section XIV - Suspension & Termination In aocordance with 24 CFR 85,43, suspension or tennination may occuril the AWARDEE materially fails to complywilh any tenn of the award, and that the award may be tenninated for convenience in aocordance with 24 CFR 85.44, If, through any cause, the AWARDEE shall fail to fulfill in timely and proper mannar ns obligations under this contract, or iI the AWARDEE shall violate any of the covenants, agreements, or stipulations of this contract, the COUNTY shall thereupon have the right to tenninate this contract by giving written notice to the AWARDEE of such tennination and specifying the effective date thereof, at least five (5) days before the effective date of such lennination. In such event, the AWARDEE Cirrus Pointe Land Acquisition CHDO Agreement Page 9 ofl6 Agenda Item No. 10C February 9,2010 Page 35 of 62 shall be entitled to receive just and equitable compensation for any worK satisfactorily completed hereunder to the date of said termination. Notwijhstanding the above, the AWARDEE shall not be relieved of liability to the COUNTY for damages sustained by the COUNTY by virtue of any breach ofthe contract by the AWARDEE and the COUNTY may withhold any payments to the AWARDEE for the purpose of setoff until such time as the exact amount of damages due the COUNTY from the AWARDEE is determined whether by court of competent jurisdiction or otherwise. Section XV - Termination for Convenience of the COUNTY The COUNTY may tenninate for its convenience this contract at any time by giving atleasl thirty (30) days notice in writing to the AWARDEE, II the contract is terminated by the COUNTY, as provided herein, the COUNTY will reimburse for any actual and approved expenses incurred, including those costs involved in terminating the contracts and shutting down the worK as of the date of notice, and the AWARDEE will be paid as a FEE an amount which bears the same ratio to the total compensation as the services actually performed bear to the total service of the AWARDEE covered by this contract, less payments of compensation previously made, Claims and disputes between the parties will be submitted to the American Arbijration Association for resolution, Award or judgment may be. entered in any court having jurisdiction thereof. Section XVI- Default-Loss of Grant Funds If the AWARDEE fails in any manner to fully perform and cany out any of the terms, covenants, and conditions of the agreement, and more particularly II the AWARDEE refuses or fails to proceed with the work wijh such diligence as will insure its completion within the time fixed by the schedule setforth in SECTION II of this agreemen~ the AWARDEE shall be in defaull and notice in writing shall be given to the AWARDEE of such defaull by the AGENCY or an agent of the AGENCY. II the AWARDEE fails to cure such default within such time as may be required by such notice, the COUNTY, acting by and through the AGENCY, may at its option terminate and cancel the contract, In the event of such termination, all grant funds awarded to the AWARDEE pursuantto this agreement shall be immediately revoked and any approvals related to the PROJECT shall immediately be deemed revoked and canceled, In such event, the AWARDEE will no longer be entijled to receive any compensation for work undertaken after the date of the termination of ihis agreement, as the grant funds will no longer be available for this project, Such termination shall not effect or terminate any ofthe rights of the COUNTY as against the AWARDEE then existing, or which may thereafter accrue because of such defaull, and the foregoing provision shall be in addition to aU other righls end remedies available to the COUNTY under the law and the note and mortgage (iI in effect), including but not limited to compelling the AWARDEE to complete the project in accordance with the terms of this agreement, in a court of equity, The waiver of a breach of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or eny other term, covenant, or condition hereof. Section XVII- Reporting Responsibilities The AWARDEE agrees to submij any and all MONTHLY reports required by HUD or the COUNTY to the AGENCY. The AGENCY will send the AWARDEE one reminder notice lithe MONTHLY report has not been received fourteen (14) days after the due date, If the AWARDEE has not submitted a report fourteen (14) days after the date on the reminder notice, the COUNTY will have the option to terminate the contract as described in this agreement. In addition, the AWARDEE agrees to provide the AGENCY information as required to determine program eligibility, in meeting national objectives, and financial records pertinent to the project. Additional reporting requirements are included asA TT ACHMENT ...8.-, Cirrus Pointe Land AcquiSition CHDO Agreement Page 10 ofl6 Agenda Item No. 10C February 9,2010 Page 36 of 62 Section XVIII-Inspection, Monitoring & Access to Records The COUNTY reserves the right to inspect, mon~or, and observe work and services performed by the AWARDEE at any and all reasonable times. The COUNTY reserves tile righllo aud~ the records of the AWARDEE any time during the performance of tIlisAgreement and for a period of five years after final payment is made under this Agreement If required, the AWARDEE will provide the AGENCY with a certified aud~ of the AWARDEE's records representing the Fiscal Year during which the PROJECT becomes complete whenever the amount listed in SECTION VII is at or exceeds $300,000. pursuant to the requirements of OMS Circular A.133, Access shall be immediately granted to the COUNTY, HUD, the Comptroller General of the Un~ed States, or any of their duly authorized representatives to any books, documents, papers, and records of the AWARDEE or its contractors which are directly pertinent to tIlat specific contract for the purpose of making audit, examination, excerpts, and transcriptions, Section XIX - General Conditions A. All notices or other communication which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as tile same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or, n by mail, on the fifth day after being posted or the date of actual receipt, whichever iseariier, COUNTY : Collier County Operational Support and Housing Department 2800 North Horseshoe Drive Su~e 400 Naples, FL 34104 AWARDEE: Collier County Housing Development Corp. 895 101h St South Su~e 202C Naples, FL 34102 Attention: Kathy Patterson B, nle and paragraph headings are for convenient reference and are not a part of this Agreement. C. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms in this Agreement shall rule. D. No waiver or breach of any provision of this Agreement shall constitute a waiver of a'subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. E. The parties hereto agree that this Agreement shall be construed and enforced according to the laws of the State of Florida. F. Should any provisions, paragraphs, sentences, words or phases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the Stale of Florida or Collier County such provisions, paragraphs, sentences, words or phrases shaD 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 severable, and In either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. G, The AWARDEE shall comply with the provisions of the Copeland Ant~Kick.Back Act (18 U.S,C, 874) as supplemented in the Department of Labor Regulations (29 CFR Part 3), as amended, Cirrus Pointe Land Acquisition CHDO Agreement Page 11 of 16 Agenda Item NO.1 OC February 9,2010 Page 37 of 62 H. The AWARDEE shall comply with the provisions of sections 103 and 107 of the Contract Work Hours and Safety Standard Act (40 U,S,C, 327,330) as supplemented by Department of Labor regulations (29 CFR, Part 5), as amended. The AWARDEE further warrants and agrees to include or cause to be included the criteria and requirements of paragraphs (G) through (H) of this section in every nonexempt subcontract. The AWARDEE also agrees to take such action as the federal, state or local govemment may direct to enforce aforesaid provisions. J, The obligations undertaken by AWARDEE pursuant to this Agreement shall not be delegated or assigned to any other parson or agency unless COUNTY shall first consent to the performance or assignment of such service or any part thereof by another person or agency. K. The Agreement shall be binding upon the parties hereto, their heirs, executors, legal representative. successors and assigns, L. AWARDEE shall indemnify and save COUNTY harmless from and against any negligent claims,liabilities, losses and causes of action which may arise out of AWARDEE's activities under this Agreement, including all other acts or omissions to act on the part of AWARDEE, including any person acting for or on its behan, and, from and against any orders, judgments, or decrees which may be entered and from and against all costs, attomeys fees, expenses and liabiIRies incurred in the defense of any such claims, or in the investigation thereof, M. AWARDEE and ijs employees and agents shall be deemed to be independent contractors, and not agents or employees of the COUNTY, and shall not attain any rights or benefits under the civil service or pension ordinances of the COUNTY, or any rights generally afforded classified or unclassified employee; further they shall not be deemed entitled to state Compensation benefits as an employee of the COUNTY, N. Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and is subject to amendment or termination due to lack of funds, or authorization. reduction of funds, andlor change in regulations. Remainder Intentionally Left Blank Cirrus Pointe land Acquisition CHDO Agreement Page 12 of 16 Agenda Item NO.1 OC February 9, 2010 Page 38 of 62 ENTIRE UNDERSTANDING This Agreement and ijs provisions merge any prior agreements, ~ any, between the parties hereto and constitutes the entire understanding, The parties hereby acknowledge that there have been and are no representations, warranties, covenants, or undertakings other than those expressly set forth herein, WITNESS our Hands and Seals on this I tj I~ day of b-ec ~-~, 2005, (SUBRECIPIENT SEAL) (Optional) COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION BY:~ ;/~~ KA HY PATTERSON EXECUTIVE DIRECTOR ./' DATE: /) - /V--os COLLIER COUNTY, FLORIDA latzkow ounly Attorney J EPH K. SCHMITT, ADMINIS MMUNITY DEVELOPMENT & NVIRONMENTAL SERVICES Cirrus Pointe Land Acquisition CHDO Agreement Page 13 of 16 Agenda Item No. 10C February 9, 2010 Page 39 of 62 "ATTACHMENT A" HOME MONTHLY PROGRESS REPORT Complete form for past month and submit to FAH staff by the 1'" of the following month. Status Report for Month of Submittal Date: Project Name Project Number Activity Number Sponsor: Contact Person Telephone: Fax: E-mail: 1. Activity Status/Milestones (describe any action taken, relating to this project, during the past month): 2. What events/actions are scheduled for the next two months? 3. Describe any affirmative marketing you have implemented regarding this project. Please list and attach any recent media coverage of your organization relating to this project. 4. List any additional data relevant to the outcome measures listed on the application for this project. 5. What events/actions are scheduled for the next two months? 6. Describe any affirmative marketing you have implemented regarding this project. Please list and attach any recent media coverage of your organization relating to this project. 7. List any additional data relevant to the outcome measures listed on the application for this project. 8. New leases executed this month (If applicable): Utility Deposit I Security Deposit Cirrus Pointe Land Acquisition CHDO Agreement Page 14 of16 Agenda Item NO.1 OC February 9,2010 Page 40 of 62 Name of Applicant For projects that serve a particular clientele, please complete the following infonnation by entering the appropriate number in the blank spaces and in the chart below. Complete the below chart for NEW clients served this month, DO NOT DUPLICATE clients served in previous months. You may provide data by either households or persons served. However, if one person received TWO services this counts as TWO SERVICE UNITS: TOTAL BENEFICIARIES This project benefits households or persons. Please circle one category (either "households" or "persons"). Enter the number of beneficiaries in the blank space and in box "1. " INCOME Of the households or persons assisted. are extremely low-income income (0-30%) of the current Median Family Income (MFI), Enter this number in box "2. " Of the households or persons assisted. are very low-income (31-50%) of the current Median Family Income (MFI). Enter this number in box "3." Of these households or persons assisted. are low income (51-80%) of the current Median Family Income (MFI). Entfir this numbfir in box "4. " NOTE: The total of boxes 2. 3 and 4 should equal the number in box 1. FEMALE HEAD OF HOUSEHOLD This project assisted Female Head of Households REGARDLESS of income. Enter this number in box "5" below. BOX1 BOX 2 BOX3 BOX 4 eOX5 Total Number of Extremely Very Low Income Female Head of Households or Persons Low Income Low Inccme (51-80%) Household Assisted (0-30%) (31-50%) Cirrus Pointe Land Acquisition CHDO Agreement Page 15 ofl6 Agenda Item NO.1 OC February 9, 2010 Page 41 of 62 Sponsor must indicate total beneficiaries for Race AND Ethnicitv Definitions of Race: 1. White: A person having origins in any of the original peoples of Europe, the Middle East, or North Africa, 2, Black or African-American: A person having origins in any of the black racial groups of Africa, 3. Asian: A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam, 4. American Indian or Alaska Native: A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment. 5. Native Hawaiian or Other Pacific Islander: A person having origins in any of the original people of Hawaii, Guam, Samoa, or other Pacific Islands. Definitions of Ethniclty: 1. Hispanic or Latino: A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. Tabulation Table of Race and Ethnicity Beneficiaries Race # Total # Hispanic White Black or African American Asian American Indian or Alaskan Native Native Hawaiian or Other Pacific Islander American Indian/Alaska Native and White Asian and White Black/African American and White American Indian/Alaskan Native and Black/African American Other Multi-Racial TOTAL: Cirrus Pointe Land Acquisition CHDO Agreement Page 16 of 16 Agenda Item NO.1 OC February 9, 2010 Page 42 of 62 "ATIACHMENT B" COLLIER COUNTY FINANCIAL ADMINISTRATION AND HOUSING HOME REQUEST FOR PAYMENT SECTION I: REQUEST FOR PAYMENT Subrecipient Name: Collier County Housina DeveloDment Corporation Subrecipient Address: 89510" Street. Suite 202C NaDles, FL 34102 Project Name: HOME - CHDO - CIRRUS POINTE Project No: HM 05-02 & 06 Payment Request # Dollar Amount Requested: $ SECTION II: STATUS OF FUNDS 1. Grant Amount Awarded $ $320 000 2. Sum of Past Claims Paid on this Account $ 3. Total Grant Amount Awarded Less Sum Of Past Claims Paid on this Account $ 4. Amount of Previous Unpaid Requests $ 5. Amount of Today's Request $ 6. Current Grant Balance (Initial Grant Amount Awarded Less Sum of !!!! Requests) $ 7. If applicable amount held as retain age to date by the County, if not retained by $ the sub-recipient. I certify that this request for payment has been drawn in accordance with the terms and conditions of the Agreement between the County and us as the Sub-recipient. I also certify that the amount of the Request for Payment is not in excess of current needs. Date Signature Title Authorizing Grant Coordinator Supervisor Dept Director Cirrus Pointe land Acquisition CHDO Agreement Page 17 ofl7 Agenda Item No. 10C February 9, 2010 Page 43 of 62 JOINT VENTURE AGREEMENT This agreement is made as of the 30th day of November, 2005, between JAMES J. FIELDS and CIRRUS POINTE PARTNERS, LLC, a Florida limited liability company, 15544 Monterosso Lane, Naples, Florida 34110, (collectively "VENTIJRER"), and COLLIER COUNTY HOUSING DEVELOPMENT CORPORATION, a Florida not-for-profit corporation, having its principal office and place of business at 895 10th Street South, Suite 202C, Naples, FL 34102 (hereinafter "CCHDC"), RECITALS 1. VENTURER owns the right to purchase a parcel of real property located at the comer of Bay Shore Drive and Thomassen Drive in Naples, Collier County, Florida, more particularly described as: All of Lot 103, Naples Groves and Truck Company's Little Fanns No, 2, according to the plat thereof, as recorded in Plat Book I at Page 27-A, of the Public Records of Collier County, Florida (the "Parcel"), 2. The Parcel is suitable for construction of multi-family housing, i.e., 108 condominium units, 32 of which VENTIJRER agrees to produce as affordable housing units, as the term is defmed in the Agreement Between Collier County and CCHDC, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference (the "CHDO Agreement"). 3. CCHDC has the experience, personnel, and fmancing necessary to assist VENTIJRER witlr,the completion, marketing, sale and monitoring of the affordable housing component of the Parcel's proposed development. 4. The parties desire to form a Joint Venture for the development and sale ofthe Parcel according to the terms of this agreement. For the reasons set forth above, and in consideration of the mutual covenants contained in this agreement, the parties agree as follows: ARTICLE ONE SCOPE AND DESCRIPTION The parties hereby create a Joint Venture for the construction and sale of 108 residential condominium units (the ''Units'') on the Parcel. The venture shall be conducted under the name of "FieldslHDC", or another name to be selected by VENTURER, and the principal office of the venture will be at 895 lOth Street South, Suite 202C, Naples, FL 34102. ARTICLE TWO CONTRIBUTIONS During the tenn of the Joint Venture, after acquisition of the Parcel, VENTURER will continue to own the Parcel at an agreed to value of One Million Nine Hundred Thousand Dollars Agenda Item No. 10C February 9, 2010 Page 44 of 62 ($1,900,000.00). VENTURER will arrange for a construction loan to be secured by the Parcel. Prior to any Distribution of Net Cash Flow, pursuant to Section 12,2 herein, VENTURER shall be reimbursed for the agreed to value of the Parcel, the amount of the outstanding construction loan secured by the Parcel, and all additional money VENTURER contributes to the project, plus interest from the date the money is contributed. During the development of the Parcel, title to the Parcel will remain in VENTURER's name, or the name of VENTURER's successors or assigns. CCHOC will contribute toward the purchase of the Parcel the sum of Three Hundred Twenty Thousand Dollars ($320,000.00), VENTURER will construct on the Parcel 108 condominium units, 32' of which shall be affordable housing units, in accordance with the terms of the CHOO Agreement, including but not limited to the number and size of the units, the eligibility of buyers thereof, and the timetable for acquisition of the Parcel, requirements for construction of the units, and method of sales to end users (the "Project"). ARTICLE THREE CONDUCT OF VENTURE VENTURER shall be responsible for actually carrying out the construction of the Project according to the construction contract (the "Contract"), plans, drawings and specifications attached hereto as Exhibit "B". The documents attached hereto as Exhibit "B" shall collectively be referred to as the "Contract Documents". CCHOC shall have the right to review and approve the Contract and other Contract Documents, or any amendments thereto, prior to their execution by VENTURER and CCHOC shall be a third party beneficiary of the Contract and the Contract Documents. VENTURER shall be responsible for obtaining all necessary permits and approvals for the Project and for complying with all applicable ordinances and statutes. To carry out the construction of the Project, VENTURER shall have full authority to order and pay for supplies and materials and to negotiate subcontracts for various aspects of the work, so long as appropriate provisions are inserted in all contracts relative to the work to ensure that the Project will be completed according to the timetable set forth in the CHOO Agreement. VENTURER agrees to comply with all laws in construction of the Project including, but not limited to, the Florida Construction Lien Law as set forth in Section 713 Florida Statutes. VENTURER will keep CCHOC informed at all times as to the progress of the construction of the Project, and CCHDC will be consulted on all decisions regarding the Project, other than those of a routine nature. A failure of the parties hereto to agree on any issue necessary for successfully carrying out the Joint Venture shall result in submission of the question to mediation, If mediation fails, either party may seek relief in the Circuit or County Courts of Collier County, Florida. ARTICLE FOUR DNISION OF EXPENSES AND VENTURER'S DUTIES The expenses associated with the development and sale of the Project shall be divided between the parties as follows; Agenda Item No. 10C February 9. 2010 Page 45 of 62 4.1 CCHDC agrees to pay the sum of Three Hundred Twenty Thousand ($320,000.00) toward the cost of acquiring the Parcel in the name of VENTURER or VENTURER's successors or assigns. 4.2 VENTURER agrees to pay in a timely manner one hundred percent (100%) of the construction costs, overhead costs, administrative costs, pennitting costs, marketing costs, architectural, legal ilnd engineering expenses and all other expenses associated with the construction of the Project and the sale of the condominium units within the Project. ARTICLE FIVE ALIENATION OF INTERESTS Neither VENTURER nor CCHDC may sell, transfer, or pledge such party's interest in this agreement or any part of such interest, without the written consent of the other, which shall not be unreasonably withheld. Any alienation made in violation of this provision will not be recognized and shall operate to tenninate the agreement at the option of the remaining parties, ARTICLE SIX VENTURER'S DUTIES 6.1 VENTURER shall supervise and direct the work related to the Project, using its best skill and attention. VENTURER shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract Documents, VENTURER shall be responsible for the acts and omissions of VENTURER's employees, subcontractors, their agents and employees, and other persons performing portions of the work under any contract with VENTURER 6.2 VENTURER warrants to the parties that materials and equipment furnished under the Contract Documents will be of good quality and new, unless otherwise required or permitted by the Contract Documents, that the work will be free from defects not inherent in the quality required or permitted, and that the work will conform with the requirements of the Contract Documents. VENTURER's warranty excludes remedy for damage or defect caused by abuse, modifications not caused by VENTURER, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage, If required by the parties, VENTURER shall furnish satisfactory evidence as to the kind and quality of materials and equipment used in the construction of the Project. 6.4 VENTURER shall provide CCHDC or a representative designated by CCHDC access to the Project site during the course of construction for the purpose of inspection or sales, 6.5 VENTURER shall purchase, or shall cause any general contractor hired pursuant to the Contract Documents to purchase, from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located insurance for protection from claims under workers' or workmen's compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and from claims for damages, other than to the work itself, to property which may arise out of or result from the Project, whether such operations be by VENTURER, the general contractor, a subcontractor, or anyone directly or indirectly employed by any of them. Certificates of such Agenda Item No. 10C February 9, 2010 Page 46 of 62 insurance shall be filed with the Joint Venture prior to the commencement of any work at the Project site. 6.6 CCHDC and VENTURER waive all rights against each other for damages caused by fire or other perils, to the extent covered by property insurance obtained pursuant to this Article or other applicable insurance, except such rights as they may have to the proceeds of such insurance held by one party as a fiduciary for the Joint Venture or the other party, VENTURER shall require similar waivers by its general contractor and subcontractors, 6.7 VENTURER shall strictly and vigorously enforce the Contract and Contract Documents against the general contractor and will ensure prompt and full compliance with the Contract Documents by the general contractor. If general contractor fails to do so, VENTURER will promptly correct work failing to conform to the requirements of the Contract Documents, whether observed before or after substantial completion of the Contract and whether or not fabricated, installed or completed, and shall correct any work found to be not in accordance with the requirement of the Contract Documents within a period of one year from the date of substantial completion of the Contract. 6,8 The Contract Documents shall provide that if the general contractor defaults or persistently fails or neglects to carry out the work in accordance with the Contract Documents or fails to perform a provision of the Contract Documents, VENTURER or CCHDC, after twenty (20) days' written notice to general contractor and without prejudice to any other remedy VENTURER or CCHDC may have, may make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the general contractor, or, alternatively, at VENTURER's or CCHDC's option, VENTURER or CCHDC may terminate the Contract Documents and may finish the work by whatever method VENTURER or CCHDC may deem expedient. If the unpaid balance under the Contract exceeds costs of finishing the work, such excess shall be paid to general contractor, but if such costs exceed such unpaid balance, general contractor shall pay the difference to VENTURER or CCHDC. 6.9 Further, the Contract Documents shall provide appropriate provisions to ensure that the Project will be completed according to the timetable set forth in the CHDO Agreement. 6.10 Upon any breach by VENTURER of the tenus of this agreement which would prevent CCHDC from receiving, or would require CCHDC to refund, project expenses and/or developer fees it would have received, or had received, as described in the CHDO Agreement, VENTURER shall be responsible to return the Three Hundred Twenty Thousand Dollars ($320,000.00) CCHDC provided to the Joint Venture under the terms of this agreement and to provide the CCHDC for Thirty Thousand Dollars ($30,000,00) as liquidated damages (and not as a penalty). The parties agree to this amount as liquidated damages because they both believe it accurately reflects the damage to the CCHDC of a breach by VENTURER. Upon return of its contribution to the Joint Venture and its receipt of the full amount of liquidated damages, CCHDC will not sue VENTURER for any other damages. However, if Collier County or any other entity seeks damages against CCHDC because of CCHDC's involvement in the Joint Venture, beyond the refund or denial of funds under the CHDO Agreement, CCHDC may seek indemnification from VENTURER for same. 4 Agenda Item No. 10C February 9,2010 Page 47 of 62 ARTICLE SEVEN TERM Term: The term of the Joint Venture shall be deemed to commence as of November 30, 2005, and shall continue through the first to occur of the following: 7.1 Venture; The expiration of fifteen (15) years from the date of commencement of the Joint 7,2 The purchase of all of the interests in the Joint Venture by one party; 7.3 The sale of all 32 of the affordable housing units on the Parcel; 7.4 Dissolution of the Joint Venture pursuant to the terms and provisions of this agreement; or 7.5 Unless waived as a basis for termination by the other party, in the event (i) a receiver, liquidator or trustee is appointed to take possession of all or substantially all of the party's assets and said appointment is not promptly contested by it and thereafter vacated within thirty (30) days; or (ii) a party makes a general assignment for the benefit of creditors; or (iii) a party shall institute proceedings to be adjudged a voluntary bankrupt or shall consent to the filing of a bankruptcy proceeding against it or shall file a petition or answer or consent seeking reorganization under the Bankruptcy Code or any other similar applicable Federal or State Law, or shall consent to the filing of any such petition; or (iv) a decree or order by a court having jurisdiction over the Parcel shall be entered adjudging a party bankrupt or insolvent or approving as properly filed a petition seeking reorganization of a party under the Bankruptcy Code, or any other similar applicable Federal or State Statutes and such decree or order shall have continued undischarged or unstayed for sixty (60) days, ARTICLE EIGHT INTEREST OF PARTIES 8.1 Interest: As of the date hereof, the interests of the respective parties in the Joint Venture and the Joint Venture's profits and losses shall be as follows: VENTURER CCHDC 98% 2% The term "profits and losses" shall mean profits in excess of Five Million Nine Hundred Thousand Dollars ($5,900,000.00) and all losses as determined for purposes of preparing the Joint Venture's information return for Federal income tax purposes. For tax purposes, all items of depreciation, gain, loss, deduction or credit shall be allocated to and among the parties in the same percentages in which the parties share profits and losses, ARTICLE NINE MANAGEMENT AND OPERATION OF BUSINESS 9.1 Management and Ooeration of Business: VENTURER shall have the responsibility of constructing and selling the Units, except CCHDC shall have the responsibility Agenda Item NO.1 OC February 9.2010 Page 48 of 62 for the marketing and sale of the 32 affordable W1its, and each shaII diligently and faithfulIy devote such time to the business of the Joint Venture as may be necessary in order to accomplish the development and sale of the Project. 9.2 Except with respect to "Material Transactions", as hereinafter defined, VENTURER shall have, and is hereby granted, aII necessary powers to carry out the purposes, business and objectives of the Joint Venture. In furtherance of the foregoing, but not as a limitation hereof, VENTURER may, in the name of the Joint Venture: (a) Employ or retain, on behalf of the Joint Venture, such supervisory personnel, consultants, attorneys, architects, engineers, accountants, personnel, firms and/or corporations as shall be advisable and proper for the operation and management of the Joint Venture, the Parcel, and/or the Project on such terms and for such compensation as VENTURER shall determine, provided such terms are reasonable, and provided further that such services are necessary and proper for the operation ofthe Joint Venture. (b) Take such other actions and execute any and aII other contracts, agreements and instruments necessary to carry out the intent and purpose of this agreement, except as may otherwise be limited herein, 9.3 Material Transactions: In order for any Material Transaction to be binding and fmal upon the Joint Venture, such Transaction shall require the written decision and consent of the parties. A "Material Transaction" shaII be one of the folIowing transactions: (a) The dissolution and winding up of the Joint Venture; (b) The sale or exchange of the Parcel and/or the mortgage, pledge, or other transfer of the assets of the Joint Venture; (c) The incurrence of indebtedness by the Joint Venture other than incidental matters in the ordinary course of its business, For the purposes of .this provision, incidental matters in the aggregate shaII be limited to a total of Twenty-Five Thousand DolIars ($25,000.00). Any indebtedness in excess of such aggregate total shall be considered a Material Transaction; (d) A change in the nature of the business of the Joint Venture; (e) Any change in the number, size, character, price, or finish of the affordable housing units; or (1) A change in the character or concept of the Project from what is contemplated by this agreement. 9.4 Related Parties: Nothing contained in this agreement shall be construed so as to prohibit the parties or any firm or corporation controlIed by or controlling either of the parties from owning, operating or investing in any other real estate construction or business. The parties agree that the parties and any affiliate, subsidiary, partner, member, stockholder and/or employee of either or both of the parties may engage in or possess an interest in any other business venture or ventures of any nature and description, independently or with others including, but not limited 6 Agenda Item No. 10C February 9, 2010 Page 49 of 62 to, the ownership, construction, financing, leasing, operating, management, syndication, brokerage and/or development of real property, and the other party hereto shall not have rights by virtue of this agreement in and to said independent ventures or to the income or profits derived therefrom. ARTICLE TEN PROJECT DEVELOPMENT 10,1 Initial Develooment: Following the execution of this Joint Venture Agreement, the VENTURER shall proceed with acquisition of the Parcel. 10.2 Develooment Schedule: The Joint Venture shall develop the Units with a projected sell out period of twenty-four (24) months. 10.3 There shall be meetings of the parties to discuss the progress of the Project at such time as determined by the parties, but in no event less often than bi-monthly, [the remainder of this page intentionally left blank] 7 Agenda Item No.1 OC February 9, 2010 Page 50 of 62 ARTICLE ELEVEN BOOKS, RECORDS AND FISCAL MATTERS 11.1 CCHDC and VENTURER shall cause to be prepared the following budgets and reports: (a) An annual budget setting forth the estimated receipts and expenditures (capital, operating and other) of the Joint Venture; and (b) A cash flow analysis for the next fiscal year, Said budget and cash flow analysis shall be delivered to parties not less than July I of each year. 11.2 Books and Records: A complete set of books and records shall be maintained at all times with respect to the business and financial operations of the Joint Venture. Said books and records shall reveal in detail all funds received or expended on behalf of the Joint Venture, all assets acquired or disposed of by the Joint Venture and all liabilities incurred or liquidated by the Joint Venture. The Joint Venture's books shall be maintained at the principal office of CCHDC in Collier County, Florida, and each of the parties or their agents shall have access thereto at all reasonable times, If any of the parties shall individually payor satisfy proper Joint Venture expenses pursuant to the rights of the parties under this agreement, said party shall submit a report on a monthly basis with paid bills attached, and the Joint Venture shall reimburse said party within ten (10) days for all said expenses incurred upon behalf of the Joint Venture, as aforesaid. The books and records shall be maintained in accordance with generally accepted accounting principals consistently applied. The fiscal year of the Joint Venture shall be the fiscal year ending December 31 (a "Joint Venture Year"). Within ninety (90) days of the expiration of each Joint Venture Year, a statement shall be:prepared by VENTURER and delivered to CCHDC showing the operation of the Joint Venture business during such preceding Joint Venture Year, as the case may be, and the financial condition of the Joint Venture as of the expiration of such Joint Venture Year. The annual financial statements shall be prepared on an accrual basis and shall be final and binding upon all parties hereunder unless and until written objection is made within forty-five (45) days of the submission of such statements, 11.3 Audit: Either party may, at its option and at its own expense, conduct internal audits of the books, records and accounts of the Joint Venture. Audits may be on a periodic basis. Should an accountant be retained by the Joint Venture, the costs and expenses of said accountant shall be paid for by the Joint Venture. ARTICLE TWELVE DISTRIBUTION AND WITHDRAWALS 12.1 The Net Cash Receipts shall be the balance in excess of Five Million Nine Hundred Thousand Dollars ($5,900,000.00) received for the sale of the Parcel after deduction for applicable operating expenses, interest, construction costs, taxes, mortgage, and other costs relating to the Project as authorized by this agreement. 12.2 Distribution of Net Cash Receipts: CCHDC and VENTURER shall ascertain, through the use of standard accounting practices, the amount of Net Cash Receipts after the sale Agenda Item No. 10C February 9, 2010 Page 51 of 62 of the property and in accordance with the other terms of this agreement, and shall distribute the Net Cash Receipts to the parties in accordance with the following priorities and proportions: VENTURER 98% CCHDC 2% 12.3 No party or affiliate shall render any service to, or receive any fee or other compensation directly or indirectly from the Joint Venture, other than those explicitly provided for in this agreement. ARTICLE THIRTEEN MISCELLANEOUS 13.1 Joint Venture: This agreement shall be construed to create a Joint Venture for the sole purpose of carrying out the activities and accomplishing the purposes referred to herein. 13.2 Attorney's Fees: The prevailing party in any suit (i) to enforce any provisions of this agreement, and/or (ii) for breach of provisions of this agreement, shall be entitled to an award of reasonable attorney's fees, court costs, and the expense of litigation both at trial and all appellate levels, 13.3 Insurance and Bonds: To the extent that the Joint Venture has any insurable interest, the Joint Venture shall keep and maintain in force, or cause to be kept and maintained in force policies of insurance of the types, amounts and with insurance carriers or sureties adequate to cover the risks of the business of the Joint Venture, naming the parties as insured or obligee, and/or as additional insured or additional obligee (as the case may be), as their interests may appear, and providing for ten (10) days' written notice to the parties prior to termination, cancellation or modification of such insurance policies. 13.4 Pavrnent of Exoenses: The Joint Venture shall pay all expenses incurred by it or on its behalf in connection with the preparation, authorization, and execution of this agreement. Each of the parties shall pay all fees and taxes payable in connection with the party's own individual participation in the Project, as contemplated by this agreement. 13.5 Finders and Brokers: Each party hereby represents and warrants to the other party that neither party has retained any broker, finder or intermediary or has paid or agreed to pay a broker's or finder's fee or commission in connection with the formation of the Joint Venture, In connection with the foregoing, each party (as "Indemnitor") shall, and hereby does indemnify and hold harmless the other parties, the Joint Venture and/or the Parcel, as the case may be (the "Indemnitee"), from and against any and all costs, claims, charges and expenses (including without limitation, reasonable attorney's fees and costs of litigation, including appeal) that may be incurred by an Indemnitee as a result of anyone claiming by, through or under an Indemnitor for any said broker's or [mder's fee or commission. 13.6 Notices: Any notice given with respect to this agreement shall be deemed given and received on the first to occur of (i) receipt, as evidenced by the return receipt, or (ii) seventy- two (72) hours after the same is deposited in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties as follows: 9 Agenda Item NO.1 OC February 9, 2010 Page 52 of 62 To CCHDC: Collier County Housing Development Corporation 895 lOth Street South, Suite 202C, Naples, FL 34102 ToVENTURER: James J, Fields 15544 Monterosso Lane, Naples, Florida 34110 or at such other address( es) within the United States as a party from time to time may designate by written notice to the other party. 13,7 Non-Waiver of Rights and Breaches: No failure or delay of a party in the exercise of any right given to such party hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of any right preclude other or further exercise thereof or of any other right. The waiver by a party of any breach of any provision hereof shall not be deemed to be a waiver of any subsequent breach thereof, or of any breach of any other provision hereof, 13.8 Further Instruments: The parties hereto shall, from time to time, execute and deliver such further instruments as the parties, and/or their counsel may reasonably request to effectuate the intent of this agreement. 13.9 Counterparts: This agreement may be executed in one or more counterparts, each of which shall be deemed an original, and said counterparts shall constitute but one and the same instrument which may be sufficiently evidenced by one counterpart. 13,10 Entire Agreement: The parties agree that this document and its exhibits constitute the entire agreement and understanding between the parties relative to the Joint Venture, and further that all prior agreements between the parties governing the rights, duties, powers and privileges of the parties regarding the Joint Venture are hereby superseded and canceled, and shall no longer affect the rights, duties, powers and privileges between the parties as relates to the Joint Venture. 13.11 Amendment: This agreement may not be amended or changed, except in writing, executed by the parties hereof. 13.12 Florida Law: This agreement and its application shall be governed by the laws of the State of Florida. 13.13 Captions: The captions of this agreement are for convenience of reference only and shall not affect the construction or interpretation of any portion of this agreement. 13.14 Force Maieure: Except as otherwise expressly provided to the contrary in this agreement, should the punctual performance of any obligations or agreement herein be prevented or delayed by any governmental restriction, regulation or control and/or other cause beyond the control of either party, then the time to perform such obligation or agreement shall be postponed by the period of time consumed by said delay. In the event of said delay, CCHDC will submit to the Joint Venture periodic reports detailing the status of the delay. 13.15 Gender: The use in the Agreement of the singular shall be deemed to include the plural and the use of the plural shall be deemed to include the singular, as the context so requires or admits. 10 Agenda Item No. 10C February 9,2010 Page 53 of 62 13.16 Severability of Clauses: If any portion of this agreement is held by competent judicial authority to be illegal or invalid, it is the intention of the parties that the illegal or invalid provision be given its nearest valid legal interpretation and that the balance of the agreement be enforced as drafted, Should it be impossible for a court of competent jurisdiction to give a provision a valid and legal interpretation; then such partial invalidity shall not cause the remainder of this agreement to be or become invalid, and all valid provisions shall remain in effect and shall be severed from any invalid provisions hereof, IN WITNESS WHEREOF, the parties hereto have executed this Joint Venture Agreement as a sealed instrument as of the day and year first written above. ~71fIj~1 NAPLESIJNli51 \'.oz Collier County Housing Development Corporation, a Florida not for profit corporation By: h4~ Its Executive DIrector Cirrus Pointe Partners, LLC, a Florida limited liability company By: 11 Agenda Item NO.1 OC February 9,2010 Page 54 of 62 ..'10 ~ n ~ ~ n ~ n n n ~ ~ ~ ~ ~ o;ll ~ ~ ~ ~ ~ ;!! ;!! ~ ~ z Z ~ Z tl tl Z Z Ii ~ ~ " " " " " ~ d c: Z Z Z Z C Z '" c h n :I: n ;; n n c: n !il :I: n :I: n" !il :I: :I: :I: 5:1: :I: ~ :I:;ll ~~ 8~ ;; :J: 8~ 8 is ~ ~ 0 0 8~ V> ~ 0 Z B~~ '" c: ;::~ ;:: ~ 8~a ;:: " 00 c:" 0" '" ;:: m~ m~ 0" :J: > :J: ;!; n mn Z ~Z~ z~ "':J: Z ~ ..~ ..", " '" ~ " " .." 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PI. 11/13/2006 It 11:43U DIIGIT I. BlOel. CLIB OBLD 320000.00 OBLI 320000.00 BC nJ 69.50 DDC-.35 1120.00 111-,002 640.00 (Page I of Mortgage) THIS INSTRUMENT PREPARED BY: letD: poml RIGIT ., At 5B01 PlLICU BI' BUD 1300 IlPLl8 lL mOB 2709 SECOND MORTGAGE AND SECURITY AGREEMENT ber 31, 20010, the terms of All of Lot 103, Naples Groves and Truck Company's Little Farms No.2, according to the plat thereof, as recorded in Plat Book I at Page 27-A, of the Public Records of Collier County, Florida (the "Parcel"). TOGETHER with all buildings, structures, and other improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to the property, and including all rights of ingress and egress to and from adjoining property (whether such rights now exist or subsequently arise); togethcr with all machinery, apparatus, equipment, fittings, fixtures, whether actually or constructively attached to said property, now or heTeafter located in, under or upon said property; together with all paving for streets, roads, walkways or entranceways now or hereafter owned by Borrower and which aTe now or hereafter located on the property or any part or parcel thereof; and together with Borrower's interest as Lessor in and to any and all leases of the property, OT any part thereof, (Page 2 of Mortgage) Agenda Item No. 10C OR: 4137 PG~~~Bo~?~g heretofore made and entered into, and in and to all leases hereafter made and entered into by Borrower during the life of this Mortgage or any extension or renewal thereof, together with any and all guarantees thereof and including all present and future security deposits and advance rentals reserving to Borrower equity of redemption rights therein; together with any and all awards of payments, including interest thereon, and the right to receive the same, as a result of the exercise of the right of eminent domain or any. other injury to, taking of or decreasing the value of, the property, to the extent of all amounts which may be secured by this Mortgage at the date of the receipt of any such aWaTd of payment by Lender; all of which, including replacements and additions thereto, shall be deemed to be and Temain a part of the property covered by this Mortgage; and all of the foregoing, together with said property (or the leasehold estate if this Mortgage is on a leasehold) aTe herein referred to as the "Property". BORROWER FOLLOWS: WITH LENDER AS I. FA YMENT. Borrower shall promptly pay when due the principal and interest on the indebtedness evidenced by the Note, prepayment and late charges as provided in the Note, and the principal and interest on any future advances secured by this Mortgage. 2. INSURANCE. (a) Types of Coverage; Loss Pavee: Assignment; Application of Funds. Borrower shall keep the Premises insured for the benefit of Lender against loss or damage by fire, lightning, windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke and such other hazaTds, including business interruptions, insurance covering loss of rents, revenues, income, profits or proceeds from leases, franchises, concessions or licenses of or on any part of the Premises, or as Lender may from time to time require, all in amounts approved by Lender not exceeding one hundred percent (100%) of full insurable value; all insurance herein provided for shall be in form and with companies approved by Lender; and, regardless of the types or amounts of insurance required and approved by Lender, Borrower shall assign and deliver to Lender, as collateral and further security for the payment of the Secured (Page 3 of Mortgage) A.,'lenda Item No. 10C OR' 413/ P6~ruAl'\1eJ 2010 . f'al!feloltiLof 62 Indebtedness, all policies of insurance which insure against any loss or damage to the Premises, with loss payable to Lender, without contribution by Lender, pursuant to New York Standard or other mortgagee clause satisfactory to Lender. The delivery of the insurance policies shall constitute an assignment, as further security, of all unearned premiwns existing from time to time thereon. If Lender, by reason of such insurance, receives any money for loss or damage, such amount may, at the option of Lender, be retained and applied by Lender toward payment of the Secured Indebtedness, or be paid over, wholly or in part, to Borrower for the repair or replacement of the Premises or any part thereof, or for any other purpose or object satisfactory to Lender, but Lender shall not be obligated to see to the proper application of any amount paid over to Borrower, (b) Flood Insurance. Insurance under the Federal Flood Insurance program shall be maintained at all times within the minimum Tequirements and amounts required under said program for federally financed or assisted loans under the Flood Disaster Protection Act of 1973, as amended, unless specifically waived in writing by the Lender. (d) Renewal. Not es insurance required of Borro as additional collateral to s renewal policy or policies m satisfactory to Lender. ~ ~ (e) Foreclosure' Suc s the purchaser of the Premises sha uneamed premiums, in and to all Po] respect to all property herein encumbered. ::::< ;...) o a foreclosure of this Mortgage, Borrower, including any right to signed and delivered to Lender, with (c) Minimwn Insurance Cover the insurance amount required herei prevent Borrower from becom' the amount of the Secured Inde 3, MAINTENANCE AND PRESERVATION, Borrower covenants that it will permit, commit, or suffer no waste, impairment or deterioration of the property or any part thereof, and will keep the same and improvements thereon in good condition and repair, Borrower further covenants that it will cause no demolition, renovation, or alteration of the improvements to the property to take place without the prior written approval and consent of the Lender. Borrower shall have the affirmative duty to keep any improvements to the property in good repair, and Lender may make demand for immediate repair of any improvements. Failure of the Borrower to comply with the demand for a period of ten (10) days shall constitute a breach of this Mortgage. 4. TRANSFER AND ACCELERATION. This Mortgage is personal to the Mortgagor. If all or any part of the property or interest herein is sold, alienated, or transferred by Borrower without Lender's prior written consent, Lender may at Lender's option declare all the sums secured by this Mortgage to be immediately due and payable, The granting of Lender's consent to such transfer shall be conditioned upon Borrower and Lender's grantee, transferee or other party to whom a conveyance is made agreeing to any modifications of this Mortgage or the (Page 4 of Mortgage) Agenda Item No. 10C OR: 4137 p~~m~n~ Note secured thereby. It is specifically agreed the requirements of this paragraph shall apply to the granting by the Borrower of a similar Mortgage OT other encumbrance having a priority of inferior dignity to this Mortgage. 5. INSPECTION. Lender and any persons authorized by Lender shall have the right to enter and inspect the property at all reasonable times and access thereto shall be pennitted for that purpose. 6. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants and agreements contained in this Instrument, or if any action or proceeding is commenced which affects the Property or title thereto or the interest of Lender therein, including, but not limited to, eminent domain, insolvency, code enforcement, or arrangements or pro.ceedings involving a bankrupt or decedent, then Lender at Lender's option may make such appearances, disburse such sums and take such action as Lender deems necessary, in its sole discretion, to protect Lender's interest, including, but not limited to (i) disbursement of attorney's fees, (ii) entry upon the Property to make repairs, (iii) procurement of satisfactory insurance as provided in paragraph 3 hereof, and (iv . ent is on a leasehold, exercise of any option to renew or extend the grou~ e~ ~ Qf ower and the curing of any default of Borrower in the terms and con~@) the ground e ~ payment of ad valorem taxes. Any amounts disburs~ b er this ~aPh together with interest thereon, shall become additi nal n b edn er sec re by this Instrument. Unless Borrower and Lender agree 0 0 e t sop t, 0 s shall be llnmediately due and payable and shall bear iter t 0 at sb e t at the highest rate which may be collected from Borrower r ic a. orr. fiJry covenants and agrees that Lender shall be subrogated t '.. lien of any mortg~oT f.th .1idn discharged, in whole or in part, by the indebtedness sec ereby. Nothing~~i ;{ this paragraph shall require Lender to incur any expense or t action hereunder. '" l. " .Jp .,,0..... 7. CONDEMNATION. JitEi @iI ptly notify Lender of any action or proceeding relating to any condemnation OT 0 er taking, whether direct or indirect, of the Property, or part thereof, and Borrower shall appear in and prosecute any such action or proceeding unless otherwise directed by Lender in writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fact for Borrower, to commence, appear in and prosecute, in Lender's or Borrower's name, any action or proceeding relating to any condemnation or other taking of the Property, whether diTect or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award, payment or claim for damages, direct or consequential, in connection with any condemnation or other taking, whether direct or indirect, of the Property, or part thereof, or for conveyances in lieu of condemnation, are hereby assigned to and shall be paid to Lender subject, if the Instrument is on a leasehold, to the rights of lessor under the gTound lease. Borrower authorizes Lender to apply such awards, payments, proceeds or damages, after the deduction of Lender's expenses incurred in the collection of such amounts, at Lender's option, to Testoration or repair of the Property or to payment of the sums secured by this Instrument, whether or not then due, in the order of application set forth in paragraph 8 hereof, with the balance, if any, to Borrower. Unless Borrower and Lender otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly (Page 5 of Mortgage) Agenda Item,~' 10C OR: 4137 ~~~l~~ng installments referred herein (in paragraphs I and 2 hereof) or change the amount of such installments, Borrower agrees to execute such further evidence of assignment of any awards, proceeds, damages or claims arising in connection with such condemnation or taking as Lender may require. 8. APPLICATION OF PAYMENTS, Unless applicable law provides otherwise, all payments received by Lender from Borrower under the Note or this Instrument shall be applied by Lender in the following order of priority: (i) amounts payable to Lender by Borrower under paragraph I hereof; (ii) interest payable on the Note; (iii) principal of the Note; (iv) interest payable on the advances made pursuant to paragraph 6 hereof; (v) principal of advances made pursuant to paragraph 6 hereof; (vi) any other sums secured by this Instrument in such order as Lender, at Lender's option, may determine; provided, however, that Lender may, at Lender's option, apply any sums payable pursuant to Paragraph 2 hereof prior to interest on and principal of the Note, but such application shall not otherwise affect the order of priority of application specified in this paragraph 8. From time to time, Lender may, at 10. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in exercising any right or remedy hereunder, or othelWise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy. The acceptance by Lender of payment of any sum secured by this Instrument after the due date of such payment shall not be a waiver of Lender's right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Instrument, nor shall Lender's receipt of any awards, proceeds or damages under paragraphs 3 and 8 heTeof operate to cure or waive Borrower's default in payment of sums secured by this Instrument. (Page 6 of Mortgage) Agenda Item No.1 oc OR: 4137 Ptt~~m~ng I I. ESTOPPEL CERTIFICATE. BorroweT shall within ten (IO) days of a written request from LendeT furnish LendeT with a written statement, duly acknowledged, setting forth the sums secured by this Instrument and any right of set-off, counteTclaim or otheT defense which exists against such sums and the obligations of this Instrument. 12. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is intended to be a security agreement pursuant to the Uniform Commercial Code for any of the items specified above as part of the Property which, under applicable law, may be subject to a security inteTest pursuant to the Uniform CommeTcial Code, and BorroweT hereby grants Lender a security interest in said items. Borrower agrees that Lender may file this Instrument, or a reproduction thereof, in the real estate records or other appropriate index, as a financing statement for any of the items specified above as part of the Property. Any reproduction of this Instrument or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Borrower agrees to execute and deliver to LendeT, upon LendeT's request, any financing statements, as well as extensions, renewals and amendments thereof, and reproduction of this Instrument in such form as Lender may require to perfect a security interest with respect to orrower shall pay all costs of filing such financing statements and any exten . ents and releases thereof, and shall pay all reasonable costs and ex any recor _ for financing statements LendeT may Teasonably require. W~'th t ' prior written consent fL der, Borrower shall not create or suffeT to be created pursu t t9 t~cial od any other security interest in said items, including repla m IS andllddffiOns thel-eto. po Borrower's breach of any covenant or agreement of Bdrro c i e I . I in luding the covenants to pay when due all sums secured ~r ~ st sh v 1h remedies of a secured party under the Uniform CommeIf~ ,15 r's n !t.U y also invoke the remedies provided in this Instrument a.X~iUCh I'tems. In exe. . in i; said remedies, LendeT may proceed against the items of ~ operty and any it s f e nal property and in any order whatsoeveT, without in any ~ cting the availab' . LendeT's remedies undeT the Uniform Commercial Code or oft -!~,' rov' ~~ nstrument. ~flECW,l: 13. REMEDIES CUMULAT~emedy provided in this Instrument is distinct and cumulative to all other rights or remedies under this Instrument or afforded by law or equity, and may be exercised concurrently, independently, or successively, in any order whatsoever. 14. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall voluntarily file a petition under the Federal Bankruptcy Act, as such Act may from time to time be amended, or under any similar or successor Federal statute relating to bankruptcy, insolvency, arrangements or reorganizations, or under any state bankruptcy or insolvency act, or file an answer in an involuntary proceeding admitting insolvency or inability to pay debts, or if Borrower shall fail to obtain a vacation or stay of involuntary proceedings brought for the reorganization, dissolution or liquidation of Borrower, or if Borrower shall be adjudged a bankrupt, or if a trustee or receiver shall be appointed for BorroweT or Borrower's property, OT if the Property shall become subject to the jurisdiction of a Federal bankruptcy court or similar state court, or if Borrower shall make an assignment for the benefit of Borrower's creditors, or if there is an attachment, execution or other judicial seizure of any portion of Borrower's assets and such seizure is not discharged within ten (l 0) days, then LendeT may, at Lender's option, declare all of the sums secured by this Instrument to be immediately due and payable without prior (Page 7 of Mortgage) Agenda Item No. 10C OR: 4137 PG~~Q:~~ng notice to Borrower, and Lender may invoke any remedies permitted by this Instrument. Any attorney's fees and other expenses incurred by Lender in connection with Borrower's bankruptcy or any of the other aforesaid events shall be additional indebtedness of Borrower secured by this Instrument. 15. NOTICE. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Instrument or in the Note shall be given by mailing such notice by certified mail addressed to Borrower at Borrower's address stated herein or at such other address as Borrower may designate by notice to Lender as provided herein, and (b) any notice to Lender shall be given by certified mail, return receipt requested, to Lender's address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Instrument or in the Note shall be deemed to have been given to Borrower or Lender when given in the manner designated herein. 19, ATTORNEY'S FEES. Borrower agrees to pay all and singular the costs, charges and expenses, including attorney's fees, incurred by Lender because of failUTe of Borrower to perform, comply with, and abide by each and every the stipulations, agreements, conditions and covenants of said Promissory Note and this Mortgage. As used in this Mortgage and all loan documents, attorney's fees shall include, but not be limited to, fees incurred in all matters of collection and enforcement, construction and inteTpretation, before, during and after trial, proceedings and appeals, as well as appearances in and connected with bankruptcy proceedings, or creditors' reorganization proceedings. 20. ACCELERATION; REMEDIES. Upon Borrower's breach of any covenant OT agreement of Borrower in this Instrument, including, but not limited to, the covenants to pay when due any sums secured by this Instrument, Lender at Lender's option may declare all of the sums secUTed by this Instrument to be immediately due and payable without further demand and may foreclose this Instrument by judicial proceeding and may invoke any other remedies (Page 8 of Mortgage) Agenda Item No. 10C *** OR: 4137 P~~~~!* permitted by applicable law or provided herein. Lender shall be entitled to collect all costs and expenses incurred in pursuing such remedies, including, but not limited to, attorney's fees, costs of documentary evidence, abstracts and title reports. 21. RELEASE. Lender shall release this Instrument upon either (i) payment of all sums secUTed by this Instrument, or (ii) completion of all of the affordable housing units and execution and recordation of mortgages upon the individual units, as contemplated under the JV Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Mortgage the day and year first above written. WITNESS: Cirrus Pointe Partners, LLC, a Florida limited liability company STATE OF FLORIDA COUNTY OF COLLIER f-< 'Y I HEREBY CERTlF 1!t duly authorized in the state and county aforesaid to take a e ell James J. Fields, Managing Member of CIRRUS POINT P . d liability company, who kJ is personally known to me or [ ] pro. \\. as identification. ~ HE Cn~L J.-! WITNESS my hand and official sea I ate and county last aforesaid this ll:!!!... day of November, 2006. STAClEL8TOIZ \~~ ~ MY COMMISSION' 00_' EXPlRES:Jljy5,2009 NOTARY PUB~ C -.............- My Commission Expires: (SEAL) ~ Subordination to the First Mortgage acknowledged and agreed this ~ - day of November, 2006. Collier County Housing Development Corporation, a Florida not for profit corporation BY~c~~ NAPLESlJ146t1 \'.QI