Agenda 04/25/2017 Item #16D304/25/2017
EXECUTIVE SUMMARY
Recommendation to approve the First Amendment to Agreement between Collier County and Big
Cypress Housing Corporation rolling project funds forward from one program fiscal year to the
successive fiscal year and also to approve customary Subordination Agreements with the U.S.
Department of Agriculture and Florida Housing Finance Corporation who each have superior lien
positions.
OBJECTIVE: To continue to promote affordable rental housing strategies for low- to moderate-income
persons through the State Housing Initiatives Partnership Program (SHIP).
CONSIDERATIONS: The FY 2013-2016 Local Housing Assistance Plan allows for SHIP funds to be
expended to promote housing affordability by acquiring and/or rehabilitating rental properties. A
solicitation for a rental strategy was released on February 29, 2016, and Big Cypress Housing Corporation
(Sponsor) was awarded $500,000 on June 28, 2016, Agenda Item (16.D.17).
Through this Agreement, the Sponsor will rehabilitate rental units at Main Street Village located at 104
Anhinga Circle in Immokalee, Florida. The agreement requires the sponsor to conduct rehabilitation
activities on no less than 40 units occupied by a tenant whose household income is at or below 50% of the
area median income. The rehabilitation of these units may include, but is not limited to: building permits,
interior and exterior building repairs; and site improvements to landscape, private sidewalks, parking, and
streets, with a maximum of $30,000 per unit. Rehabilitation will be performed through a general
contractor or contractors in specialty trades. The Sponsor will perform the overall contract management
and administrative tasks as it relates to this project.
Big Cypress Housing Corporation's Main Street Village rental project has prior superior debt from the
U.S. Department of Agriculture (USDA) and Florida Housing Finance Corporation. It is usual and
customary that superior mortgage holders require subordinate mortgage interests to enter into a
subordination agreement to protect their original investment. Given Florida Housing Finance Corporation
approval of the SHIP subordinate financing at its March 24th, 2017 public meeting and assignment to
legal counsel, the subordination agreement is not available in final form at this date. The form of
subordination provided is typical to FHFC transactions.
The First Amendment changes are as follows;
1. Reduce funding in the amount of $500,000 from SHIP Fiscal Funding Year 2014-2015 and
increase funding in the amount of $500,000 from SHIP Fiscal Funding Year 2015-2016. The
change in funding year will extend the time of performance from June 30, 2017, to June 30, 2018.
2. Replace Request for Payment and Quarterly Progress Report exhibits.
3. Remove or add language throughout agreement to allow for a better administration of the project
and provide a more organized format.
FISCAL IMPACT: Funds are available within SHIP Grant Fund 791, Project 33429. The proposed
action does not have an impact on the General Fund due to a recent notification of state funding which
will provide future administration throughout County FY17.
LEGAL CONSIDERATIONS: The Subordination Ageement will only be routed for signature if it is
substantially identical to the Subordination Agreement form that is back-up to this item. This item has
been approved for form and legality and requires a majority vote for Board approval. -JAB
GROWTH MANAGEMENT IMPACT: Acceptance of these funds will allow the County to expand
affordable housing opportunities for its citizens and further the goals of the Housing Element of the
04/25/2017
Collier County Growth Management Plan.
RECOMMENDATION: To approve and authorize the Chairman to sign a SHIP Sponsor First
Amendment between Collier County and Big Cypress Housing Corporation.
Prepared By: Priscilla Doria, Grant Coordinator, Community and Human Services
ATTACHMENT(S)
1. BCHC Amendment #1-CAO Stamp (PDF)
2. BCHC-Agreement (6.28.16; 16.D.17) (PDF)
3. Subordination Agreement Form (DOCX)
04/25/2017
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.D.3
Doc ID: 3004
Item Summary: Recommendation to approve the First Amendment to Agreement between Collier
County and Big Cypress Housing Corporation rolling project funds forward from one program fiscal year
to the successive fiscal year and also to approve customary Subordination Agreements with the U.S.
Department of Agriculture and Florida Housing Finance Corporation who each have superior lien
positions.
Meeting Date: 04/25/2017
Prepared by:
Title: – Procurement Services
Name: Priscilla Doria
04/03/2017 10:15 AM
Submitted by:
Title: Division Director - Cmnty & Human Svc – Public Services Department
Name: Kimberley Grant
04/03/2017 10:15 AM
Approved By:
Review:
Community & Human Services Kristi Sonntag Additional Reviewer Completed 04/03/2017 10:20 AM
Community & Human Services Maggie Lopez Additional Reviewer Completed 04/03/2017 10:44 AM
Community & Human Services Leslie Davis Additional Reviewer Completed 04/03/2017 1:16 PM
Public Services Department Joshua Hammond Additional Reviewer Completed 04/05/2017 8:39 AM
Public Services Department Sean Callahan Additional Reviewer Completed 04/05/2017 1:02 PM
Public Services Department Kimberley Grant Additional Reviewer Completed 04/06/2017 11:46 AM
Public Services Department Hailey Margarita Alonso Level 1 Division Reviewer Completed 04/07/2017 11:08 AM
Grants Erica Robinson Level 2 Grants Review Completed 04/07/2017 1:17 PM
Public Services Department Steve Carnell Level 2 Division Administrator Review Completed 04/12/2017 8:59 AM
County Attorney's Office Jennifer Belpedio Level 2 Attorney of Record Review Completed 04/13/2017 4:31 PM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 04/13/2017 4:42 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 04/14/2017 8:27 AM
Budget and Management Office Ed Finn Additional Reviewer Completed 04/17/2017 11:20 AM
Grants Therese Stanley Additional Reviewer Completed 04/17/2017 2:30 PM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 04/18/2017 10:15 AM
04/25/2017
Board of County Commissioners MaryJo Brock Meeting Pending 04/25/2017 9:00 AM
Grant - SHIP FY 2014-201-5-2015-2016
Activity: - Rental Rehabilitation
SPONSOR: - Big Cypress Housing
Corporation
DUNS # - 064723252
CSFA # - 52.901
FIRST AMENDMENT TO AGREEMENT BETWEEN COLLIER COUNTY
AND
BIG CYPRESS HOUSING CORPORATION
THIS AGREEMENT is made and entered into this day of , 2017,
by and between Collier County, a political subdivision of the State of Florida, ("COUNTY" or
Grantee") having its principal address as 3339 E. Tamiami Trail, Suite 211, Naples FL 34112, and Big
Cypress Housing Corporation a private not-for-profit corporation existing under the laws of the State
of Florida, having its principal office 19308 SW 380th Street, Florida City, FL 33034
("SPONSOR").
WHEREAS, on June 28, 2016, Item 16D17, the County entered into an Agreement with
Sponsor to undertake rental rehabilitation of affordable housing rental units.
WHEREAS, the Parties desire to amend the Agreement to reduce funding from fiscal funding
year 2014-2015 by $500,000 and increase funding from fiscal funding year 2015-2016 by $500,000.
The change in funding year will extend the time of performance to June 30, 2018.
WHEREAS, the Parties also desire to replace Request for Payment and Quarterly Progress
report exhibits and to remove or add language to allow for better administration and a more organized
format.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, it is agreed by the Parties as follows:
Words Ftraek Through are deleted; Words Underlined are added
I. DEFINITIONS AND PURPOSE
A. DEFINITIONS
Terms shall be as defined in the State Housing Incentives Partnership (SHIP) Program,
Florida Statute 420.9071 and Chapter 67-37 of the Florida Administrative Code, and any
amendments thereto (also referred as the SHIP Program).
The purpose of this Agreement is to state the terms and conditions under which the
SPONSOR will implement the Scope of Service summarized in Section II of this
Agreement.
IL SCOPE OF SERVICE
The SPONSOR shall, in a satisfactory and proper manner as determined by the COUNTY
perform the necessary tasks to administer and implement the described services herein
incorporated by reference as Exhibits B A & B (Rental Rehabilitation Project Requirements
and Budget Narrative) in accordance with the terms and conditions of Sponsor'sRequests-foF
Applications dated March 21, 2016 for; the Rental Rehabilitation/Re t. i n,.i.abil t,.tio and
Acquisition or Acquisition, of State Housing Initiatives Partnership Funding CyeleFiseff! Years
2014-2015 and 2015-2016. SPONSOR Application dated r a fee 21 201 6.
III. SPECIAL GRANT CONDITIONS
.TAIPTAII 11 MAIIMCIETTr8w.nseeresrrAk Az
The following resolutions and policies must be adopted, if not previously adopted, by
the SPONSOR's governing body. within 60 days ef een4ae4 exeeutio .
1. Affirmative Fair Housing Policy
2. Procurement Policy including Code of Conduct
3. Affirmative Action Policy
4. Conflict of Interest Policy
5. Equal Opportunity Policy
6. Sexual Harassment Policy
7. Procedures for meeting the requirements set forth in Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794)
8. Fraud Policy
9. Tenant Waitlist Policy
10. Tenant Grievance Policy
W. Tenant Giiideline� (income)
IV. TIME OF PERFORMANCE
1i 111:111111. 1 1
..
V. AGREEMENT AMOUNT
It is expressly agreed and understood that the total amount to be disbursed by the COUNTY for
the use by the SPONSOR during the term of the Agreement shall not exceed FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00).
.IM MEM, K, W rATATATATITAT111
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Madifielatiens to the "Budget and Seape" fnay enly be made if approved in advanee by t
nnr��. Budgeted fund shifts between cost categories and activities shall not be more than
10% and does not signify a change in scope. Fund shifts that exceed 10% efa east e-ategery
and activity shall only be made with Board approval.
All services specified in Section II. Scope of Services shall be performed by SPONSOR
employees, or shall be put out to competitive bidding under a procedure acceptable to the
COUNTY and State requirements. The SPONSOR shall enter into contract for improvements
with the lowest, responsive and qualified bidder. Contract administration shall be handled by
the SPONSOR and monitored by CHS, which shall have access to all records and documents
related to the project.
The County will secure the awafded affieiifA w4h a note and mortgage. The Nete will
interest a+ 01% interest per year. Funds will be secured by a zero percent (0%)
forgivable loan. A subordinate mortgage will be executed and placed on the property
rehabilitated. Loan will have a term of fifteen (15) years.
IlWIM .A1, WAT!
First Rieht of Refusal: If the SPONSOR offers the Property for sale before fifteen (15) years
after the SPONSOR's receipt of the Certificate of Occupancy, or at any other time when there
are existing mortgages on the Property funded under the SHIP program, then the SPONSOR
must give a right of first refusal (ROFR) for a 90 day period, to experienced non-profit
organizations, reasonably approved by the County for purchase of the Property, at the then
current market value, for continued occupancy by eligible persons.
The 90 day right of first refusal period begins when a legal advertisement appears in a local
newspaper of general circulation or other method authorized by statute or regulation offering
the Property for sale to non-profit organizations. County approval of any nonprofit organization
submitting an offer of the full requested sale price or any other offer considered in the sole
determination of the SPONSOR to be reasonable, will be based on the criteria listed in the
affordable multi -family rental housing development strategy sponsor selection criteria, in the
County's FY 2013-2016 SHIP Local Housing Assistance Plan. If either;
(a) the 90 -day right of first refusal period expires and the SPONSOR is not then a
party to an active contract for purchase and sale of the Property, with an eligible
nonprofit organization, reasonably approved by the County; or
(b) a contract for purchase and sale of the Property is entered into by the
SPONSOR and an eligible nonprofit organization, reasonably approved by the
County, within such 90 -day ROFR period but terminated by either party
pursuant to the terms thereof subsequent to the 90 -day period then the
SPONSOR can offer the property for the fair market value for continued
occupancy with eligible tenants.
VL PAYMENT
The County shall provide an initial loan disbursement of $250,000 for rehabilitation activities
and will reconcile actual expenditures reported to the funds disbursed to the Sponsor based on
the properly completed Invoice with an accompany Al or equivalent documentation. Once
the initial loan disbursement is reconciled and expended by the Sponsor, the Sponsor shall
submit a final loan request for $250,000 until all funds are disbursed not to exceed $500,000.
All funds are secured by a promissory note and mortgage signed prior to the disbursement of
any funds to secure the funds. Sheiild thePONS to perform the promissefy fiete will
1....i.., and payable for 4he amount disbursed 4.. date
Any funds disbursed to the Sponsor that are net expended or wef determined to have been
expended for unallowable costs shall he ee fisidefed e- ,.fpay . ent to the Sponso~ will not be
used towards the total expenditure cost allowed towards the project. The County shall recoup
such overpayments. In the event an overpayment is identified after the end of the contract and
no further invoice is due, the Sponsor shall remit the overpayment to the County via check.
The County shall release a check in the amount of $250,000 upon entering an agreement with
SPONSOR f f Re ff .1 Rehabilita fio fund a not hefdinat mortgage d
rox�ccrrcaxzccna��u�—canes-8ccurC—[�m�Scmvra.n.c�cc i�ccx cgagc cma
forgivable note for the ~ehabilit fftian. Thereafter the SPONSOR will request a second loan
disbursement upon submission and approval by CHS of SPONSOR'S AIA documentation that
shows funds have been expensed properly and in a timely manner for the initial lean
disbursement. The SPONSOR shall ensure the performance of this Agreement. The seeond
lean disbursement for reliabilitfftieti �Mll Ret oeour if the SPONSOR f�ils to perform the
minimth:n level of service required by4his-�ut,. Final reeeneiliafieii in-'Xeiees are due no
later 4h.,.. 90 ,lays a fte.. the end of this n gree eiit Proof of eligible expenditures made to the
a
project must be provided to CHS before the end of the Agreement. All eligible and approved
expenditures received before end of Agreement will be used towards total project cost and a
modification to mortgage may be recorded to reflect the actual cost expended on project.
No disbursements will be made until approved by CHS and the Collier County Clerk of Courts
for grant compliance and adherence to any and all applicable local, state or federal
requirements. The second loan disbursement will be made upon receipt of a properly completed
invoice and in compliance with §218.70, Florida Statutes, otherwise known as the "Local
Government Prompt Payment Act."
The COUNTY reserves the right to withhold any future loan disbursements as a result of
incomplete or altered invoices, inadequately documented expenses, or expenses for items and
services the COUNTY deems not to be usual, customary and reasonable expenses related to
improvements of the Project. Additionally, the COUNTY reserves the right to not pay any
contractor, subcontractor, material men or supplier wherein a dispute arises.
The COUNTY shall provide the seeand lean disbufseffiefit fer !he fehabili4atien work
p e, and siibseqflieft�
deeiifnei4s te suppert the first loan disbursefflent te inehide btA net liffiked te (ii) AIA 6703-,
(iii) second loan disbufsefnepA fequesi, (W) the defivery of an &ieeuted Partial Release of LJ
er Fhial Release of Lien for the work associated with the applieatien fef seeend loan
disbursement, and (v) siieh ether deetHnefttutien and information as reasonably requested by
the �^T�. All disbursements by the COUNTY will be made to the SPONSOR who shall
be responsible for paying the Contractor. Notwithstanding anything herein to the contrary, the
COUNTY shall have no obligation to fund the work if:
(i) the—SPONSOR is in default under the terms of this Agreement or any other
agreement between the SPONSOR and the COUNTY, or
(ii) the request includes items not in a budget approved by the COUNTY.
The COUNTY has the right, to be exercised in its sole and absolute discretion, to delay funding
of the work until such time that it receives a title endorsement from a nationally recognized title
insurance company providing that the Property and the improvements thereon, are free from
construction liens, if applicable. The SPONSOR shall comply with Chapter 713, Florida
Statutes in all respects.
VII. NOTICES
Notices required by this Agreement shall be in writing and delivered via mail (postage
prepaid), commercial courier, or personal delivery or sent by facsimile or other electronic
means. Any notice delivered or sent as aforesaid shall be effective on the date of delivery or
sending. All notices and other written communications under this Agreement shall be addressed
to the individuals in the capacities indicated below, unless otherwise modified by subsequent
written notice.
COLLIER COUNTY ATTENTION: Ra fiesha Uud ell Grant Gee
Priscilla Doria, Grant Coordinator
Collier County Government
Community and Human Services
3339 E Tamiami Trial, Suite 211
Naples, Florida 34112
s
Email to: RavneshaHudael
PriscillaDoria@r,olliergov.net
v.net
Phone: 239-252-5312
SPONSOR ATTENTION: Steve Dirk, President
Big Cypress Housing Corporation
19308 SW 380th Street, POB 343529
Florida City, FL 33034
Email to: Stevekirk@i:gralneighborhoods.org
Phone: 305-242-2142
VIII. GENERAL CONDITIONS
A. GENERAL COMPLIANCE
The SPONSOR agrees to comply with the requirements as outlined in Section 420.907
of the Florida Statutes and Chapter 67-37 of the Florida Administrative Code. The
SPONSOR also agrees to comply with all other applicable state and local laws,
regulations, and policies governing the funds provided under this Agreement. The
SPONSOR agrees to utilize funds available under this Agreement for Rental
Rehabilitation.
B. CODE OF ETHICS AND CONDUCT
The SPONSOR shall comply with the Code of Ethics and Conduct for Construction
Professionals developed by Construction Management Association of America (CMAA).
Adhering to this code of ethics is critical to demonstrating ethical conduct within the
construction industry. This code of ethics is not intended to replace, but rather to
supplement, any code of ethics that the SPONSOR already uses in their organization.
C. INDEPENDENT CONTRACTOR
Nothing contained in this Agreement is intended to, or shall be construed in any manner,
as creating or establishing the relationship of employer/employee between the parties.
The SPONSOR shall at all times remain an "independent contractor" with respect to the
services to be performed under this Agreement. The COUNTY shall be exempt from
payment of all Unemployment Compensation, FICA, retirement benefits, life and/or
medical insurance and Workers' Compensation Insurance, as the SPONSOR is an
independent SPONSOR.
D. WORKERS' COMPENSATION
The SPONSOR, its contractors and subcontractors, shall provide Workers'
Compensation Insurance coverage for all of its employees involved in the performance
of this contract.
E. INSURANCE
C
The SPONSOR shall furnish a Certificate of Insurance naming Collier County as an
additional insured with general liability limits of at least $1,000,000 per occurrence in
accordance with Exhibit A "H" (Insurance Requirements).
F. INDEMNIFICATION
To the maximum extent permitted by Florida law, the SPONSOR shall indemnify and
hold harmless Collier County, its officers, agents and employees from any and all
claims, liabilities, damages, losses, costs, and causes of action which may arise out of
an act, or omission, including, but not limited to, reasonable attorneys' fees and
paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of the SPONSOR or any of its agents, officers, servants, employees,
contractors, patrons, guests, clients, licensees, invitees, or any persons acting under the
direction, control, or supervision of the SPONSOR in the performance of this
Agreement. This indemnification obligation shall not be construed to negate, abridge or
reduce any other rights or remedies which otherwise may be available to an indemnified
party or person described in this paragraph. The SPONSOR shall pay all claims and
losses of any nature whatsoever in connection therewith and shall defend all suits in the
name of the COUNTY and shall pay all costs (including attorney's fees) and
judgments which may issue there -on. This Indemnification shall survive the termination
and/or expiration of this Agreement. This section does not pertain to any incident
arising from the sole negligence of Collier County. The foregoing indemnification shall
not constitute a waiver of sovereign immunity beyond the limits set forth in Section
768.28, Florida Statutes.
G. GRANTOR RECOGNITION
The SPONSOR agrees that all notices, informational pamphlets, press releases,
advertisements, descriptions of the sponsorships of the Program, research reports and
similar public notices prepared and released by the SPONSOR for, on behalf of, and/or
about the Program shall include the statement:
"FINANCED BY FLORIDA HOUSING FINANCING COPORATION (FHFC)
AND COLLIER COUNTY COMMUNITY AND HUMAN SERVICES
DIVISION"
and shall appear in the same size letters or type as the name of the SPONSOR. This
design concept is intended to disseminate key information regarding the development
team as well as Equal Housing Opportunity to the general public. Construction signs
shall comply with applicable COUNTY codes.
H. AMENDMENTS
The COUNTY and/or SPONSOR may amend this Agreement, at any time, provided
that such amendments make specific reference to this Agreement, and are executed in
writing, signed by a duly authorized representative of each organization, and approved
7
by the Grantee's governing body. Such amendments shall not invalidate this
Agreement, nor relieve or release the Grantee or SPONSOR from its obligations under
this Agreement.
The COUNTY may, in its discretion, amend this Agreement to conform with federal,
state or local governmental guidelines, policies and available funding amounts, or for
other reasons. If such amendments result in a change in the funding, the scope of
services, or schedule of the activities to be undertaken as part of this Agreement, such
modifications will be incorporated only by written amendment signed by both Grantee
and SPONSOR.
Expiration of Agreement: If the SPONSOR does not complete the project within the
time period, the COUNTY Manager or designee may grant a cumulative time extension
of no more than 180 days and modify any subsequent project work plans to reflect the
extension.
I. SUSPENSION OR TERMINATION
Either party may terminate this Agreement, at any time, by giving written notice to the
other party of such termination, and specifying the effective date thereof, at least 90 days
before the effective date of such termination. In the event of any termination for
convenience, all finished or unfinished documents, data, reports or other materials
prepared by the SPONSOR under this Agreement shall, at the option of the COUNTY,
become the property of the COUNTY. The COUNTY may also suspend or terminate
this Agreement, in whole or in part, if the SPONSOR materially fails to comply with any
term of this Agreement, or with any of the rules, regulations or provisions referred to
herein, in addition to other remedies as provided by law. If through any cause, the
SPONSOR shall fail to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the covenants, agreements, or stipulations of this
Agreement, the COUNTY shall thereupon have the right to terminate this Agreement or
suspend loan disbursements in whole or part by giving written notice to the SPONSOR
of such termination or suspension of loan disbursements and specify the effective date
thereof, at least five (5) working days before the effective date of termination or
suspension.
See Section VII. G. — Corrective Action for escalation steps leading to suspension or
termination for non-compliance. If loan disbursements are withheld, Community and
Human Services Division staff shall specify in writing the actions that must be taken by
the SPONSOR as a condition precedent to resumption of loan disbursements and shall
specify a reasonable date for compliance. Sufficient cause for suspension of loan
disbursements shall include, but not be limited to:
* Ineffective use of funds.
* Failure to comply with Section II, Scope of Service of this Agreement.
* Failure to submit periodic reports as determined by the COUNTY.
J. PURCHASING
W
All purchasing for services and goods, including capital equipment, shall be made by
purchase order or by a written contract and in conformity with the thresholds of Collier
County Purchasing Policy.
Purchasing Threshold Policy
Dollar Range $
Quotes
Under $3K
1 Written Quote
$3K to $50K
3 Written Quotes
Above $50K
Request for Proposal (RFP)
Invitation for Bid (IFB)
VIH X. ADMINISTRATIVE REQUIREMENTS
A. RECORDS TO BE MAINTAINED
The SPONSOR shall maintain all records required by the COUNTY that are pertinent
to the activities to be funded under this Agreement as established in Exhibit D A
(Rental Rehabilitation Project Requirements).
B. RETENTION
The SPONSOR shall retain all records pertinent to expenditures incurred under this
Agreement for a period of five (5) fiscal years after the funds have been expended and
accounted for, provided applicable audits have been released. Notwithstanding the
above, if there is litigation, claims, audits, negotiations or other actions that involve any
of the records cited and that have started before the expiration of the five-year period,
then such records must be retained until completion of the actions and resolution of all
issues, or the expiration of the ten-year period, whichever occurs later.
C. DISCLOSURE
The SPONSOR shall maintain records in accordance with Florida's Public Information
Law (F. S. 119).
D. CLOSEOUTS
The SPONSOR's obligation to the COUNTY shall not end until all closeout
requirements are completed. Activities during this closeout period shall include, but not
be limited to: disposing of program assets (including the return of all unused materials,
equipment, program income balances, and receivable accounts to the COUNTY), close
out monitoring and determining the custodianship of records. In addition to the records
retention outlined in Section VIII.B, the SPONSOR shall comply with Section 119.021
Florida Statutes regarding records maintenance, preservation and retention. A conflict
between state and federal law records retention requirements will result in the more
stringent law being applied such that the record must be held for the longer duration.
Any balance of unexpended funds which have been disbursed must be returned to the
County. Any funds paid in excess of the amount to which the SPONSOR is entitled
under the terms and conditions of this Agreement must be refunded to the COUNTY.
The SPONSOR shall also produce records and information that complies with Section
215.97, Florida Single Audit Act. At the time of closeout, if not already done, the
County shall secure a note and mortgage on the property for the amount of SHIP funds
invested. The SPONSOR shall be responsible for ongoing reporting, subject to onsite
monitoring, tenant income qualification activities and continued use for a period of 15
years.
E. AUDITS AND INSPECTIONS
F.
1. Audits
Pursuant to Florida Statute 215.97(6) (Florida Single Audit Act), in the event that
the SPONSOR expends a total amount of State awards equal to or in excess of $500,000
in any fiscal year of such SPONSOR, the SPONSOR must have a State single or
project -specific audit for such fiscal year in accordance with Section 215.97, Florida
Statutes; applicable rules of the Executive Office of the Governor and the Comptroller,
and Chapter 10.650, Rules of the Auditor General.
In connection with these audit requirements, the SPONSOR shall ensure that the
audit complies with the requirements of Section 215.97(7), Florida Statutes. This
includes submission of a reporting package as defined by Section 215.97(2)(d), Florida
Statutes, and Chapter 10.650, Rules of the Auditor General. The financial reporting
package must be delivered to the COUNTY within 45 days after delivery of the
financial reporting package to the SPONSOR but no later than 180 days after the
SPONSOR's fiscal year end. Submit the financial reporting package and Exhibit G F
to the Grant Coordinator.
If the SPONSOR expends less than $500,000 in State awards in its fiscal year, an
audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, is
not required. In the event that the SPONSOR expends less than $500,000 in State
awards in its fiscal year and elects to have an audit conducted in accordance with the
provision of Section 215.97, Florida Statutes, the cost of the audit must be paid from
non -State funds.
2. Inspections
The SPONSOR'S records with respect to any matters covered by this Agreement shall
be made available to the COUNTY and/or the FHFC at any time during normal
business hours, as often as the COUNTY or the FHFC deems necessary, to audit,
examine, and make excerpts or transcripts of all relevant data.
The SPONSOR agrees that CHS will carry out no less than one (1) annual on-site
monitoring visit and evaluation activities as determined necessary for a period of fifteen
(15) years. At the COUNTY's discretion, a desk top review of the activities may be
conducted in lieu of an on-site visit. The continuation of this Agreement is dependent
upon satisfactory evaluations. The SPONSOR shall, upon the request of CHS, submit
information and status reports required by CHS to enable CHS to evaluate said progress
10
and to allow for completion of reports required. The SPONSOR shall allow CHS to
monitor the SPONSOR on site. Such site visits may be scheduled or unscheduled as
determined by CHS.
The COUNTY will monitor the performance of the SPONSOR based on goals and
performance standards as stated with all other applicable federal, state and local laws,
regulations, and policies governing the funds provided under this Agreement.
Substandard performance, as determined by the COUNTY, will constitute
noncompliance with this Agreement. If corrective action is not taken by the SPONSOR
within a reasonable period of time after being notified by the COUNTY, contract
suspension or termination procedures will be initiated. The SPONSOR agrees to
provide the COUNTY, or the COUNTY's internal auditor(s) access to all records
related to performance of activities in this agreement.
G. CORRECTIVE ACTION
Corrective action plans may be required for noncompliance, nonperformance, or
unacceptable performance under this Agreement. Penalties may be imposed for failures
to implement or to make acceptable progress on such corrective action plans.
In order to effectively enforce Resolution 2013-228, Community and Human Services
(CHS) Division has adopted an escalation policy to ensure continued compliance by
recipients, SPONSORS, or any entity receiving grant funds from CHS. CHS's policy
for escalation for non-compliance is as follows:
1. Initial non-compliance may result in Findings or Concerns being issued to the
entity and will require a corrective action plan be submitted to the Division
within 15 days following the monitoring visit.
• Any pay requests that have been submitted to the Division for payment will be
held until the corrective action plan has been submitted.
• CHS will be available to provide Technical Assistance (TA) to the entity as
needed in order to correct the non-compliance issue.
2. If in the case an Entity fails to submit the corrective action plan in a timely
manner to the Division, the Division may require a portion of the awarded grant
amount be returned to the Division.
• The Division may require upwards of five percent (5%) of the awarded amount
be returned to the Division, at the discretion of the CHS Director.
• The entity maybe considered in violation of Resolution 2013-228.
3. If in the case an Entity continues to fail to correct the outstanding issue or
repeats an issue that was previously corrected, and has been informed by the
Division of their substantial non-compliance, by certified mail; the Division may
require a portion of the awarded grant amount be returned to the Division.
• The Division may require upwards often percent (10%) of the awarded amount
be returned to the Division, at the discretion of the CHS Director.
• The entity will be considered in violation of Resolution 2013-228
4. If in the case after repeated notification the Entity continues to be substantially
non-compliant, the Division may recommend the contract or award be
terminated.
• The Division will make a recommendation to the Board of County
Commissioners to immediately terminate the agreement or contract. The Entity
will be required to repay all funds disbursed by the County for project that was
terminated.
The entity will be considered in violation of Resolution No. 2013-228
If in the case the Entity has multiple agreements with the Division and is found to be
non-compliant, the above sanctions may be imposed across all awards at the Director's
discretion.
H. PAYMENT PROCEDURES
The Sponsor will retain a Licensed General Contractor, Architect and/or
Inspector who will perform a review and inspection of the Project prior to each
additional disbursement following the initial loan disbursement, verifying that the costs
claimed are allowable, unit rehabilitation is satisfactory, and reports are timely as
outlined under the provisions of this Agreement. Failure to submit required progress
reports in accordance with Exhibit DE (Quarterly Progress Report) may result in
disbursement delays as determined by Community and Human Services.
I. PROGRESS REPORTS
The SPONSOR shall submit regular Quarterly Progress Report (Exhibit E -E) to the
COUNTY in the form, content and frequency required by the COUNTY.
IXX. CIVIL RIGHTS COMPLIANCE
The SPONSOR agrees that no person shall, on the ground of race, creed, color, religion,
national origin, sex, handicap, familial status, marital status or age be excluded from the
benefits of, or be subjected to discrimination under any activity carried out by the SPONSOR
in performance of this Agreement. Upon receipt of evidence of such discrimination, the
COUNTY shall have the right to terminate this Agreement. The SPONSOR will take
affirmative action to ensure that all employment practices are free from such discrimination.
Such employment practices include but are not limited to the following: hiring, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff, termination, rate of pay or
other forms of compensation, and selection for training, including apprenticeship. The
12
SPONSOR agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this nondiscrimination clause.
XXI. PROHIBITED ACTIVITY
The SPONSOR is prohibited from using funds provided herein or personnel employed in the
administration of the program for: political activities; sectarian or religious activities; lobbying,
political patronage, and nepotism activities.
XhXII. SEVERABILITY OF PROVISIONS
If any provision of this Agreement is held invalid, the remainder of this Agreement shall not
be affected thereby, if such remainder would then continue to conform to the terms and
requirements of applicable law.
XIS XIII. AVAILABILITY OF FUNDS
The parties acknowledge that the Funds originate from SHIP grant funds from FHFC and must
be implemented in full compliance with all of SHIP rules and regulations and any agreement
between COUNTY and FHFC governing FHFC funds pertaining to this Agreement. In the
event of curtailment or non -production of said state funds, the financial sources necessary to
continue to pay the SPONSOR all or any portions of the funds will not be available. In that
event, the COUNTY may terminate this Agreement, which termination shall be effective as of
the date that it is determined by the County Manager or designee, in his -her sole discretion and
judgment, that the funds are no longer available. In the event of such termination, the
SPONSOR agrees that it will not look to, nor seek to hold the COUNTY, nor any individual
member of the County Commissioners and /or County Administration, personally liable for the
performance of this Agreement, and the COUNTY shall be released from any further liability
to the SPONSOR under the terms of this Agreement.
XIILXIV. DEFAULTS, REMEDIES, AND TERMINATION
This Agreement may also be terminated for convenience by either the County or the
SPONSOR, in whole or in part, by setting forth the reasons for such termination, the effective
date, and, in the case of partial terminations, the portion to be terminated. However, if in the
case of a partial termination, the County determined that the remaining portion of the award
will not accomplish the purpose for which the award was made, the County may terminate the
award in its entirety.
The following actions or inactions by the SPONSOR shall constitute a Default under this
Agreement:
A. Failure to comply with any of the rules, regulations or provisions referred to herein, or
such statutes, regulations, executive orders, and SHIP guidelines, policies or directives
as may become applicable at any time;
B. Failure, for any reason, of the SPONSOR to fulfill, in a timely and proper manner, its
13
obligations under this Agreement;
C. Ineffective or improper use of funds provided under this Agreement;
D. Submission, by the SPONSOR to the COUNTY, of reports that are incorrect or
incomplete in any material respect.
E. Submission by the SPONSOR of any false certification;
F. Failure to materially comply with any terms of this Agreement;
G. Failure to materially comply with the terms of any other agreement between the County
and the SPONSOR relating to the project.
In the event of any default by the SPONSOR under this Agreement, the County may seek any
combination of one or more of the following remedies:
1. Require specific performance of the Agreement, in whole or in part;
2. Require the use of, or change in, professional property management;
3. Require immediate repayment by the SPONSOR to the County of all SHIP
funds the SPONSOR has received under this Agreement;
4. Apply sanctions, if determined by the County to be applicable;
5. Stop all payments, until identified deficiencies are corrected;
6. Terminate this Agreement by giving written notice to the SPONSOR of such
termination and specifying the effective date of such termination. If the
Agreement is terminated by the County as provided herein, the SPONSOR shall
have no claim of payment or claim of benefit for any incomplete project
activities undertaken under this Agreement.
XV. OPPORTUNITIES FOR SMALL AND MINORITY/WOMEN OWNED BUSINESS
ENTERPRISES
The SPONSOR will use its best efforts to afford small businesses, minority business
enterprises, and women's business enterprises the maximum practicable opportunity to
participate in the performance of this contract. As used in this contract, the terms "small
14
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XV. OPPORTUNITIES FOR SMALL AND MINORITY/WOMEN OWNED BUSINESS
ENTERPRISES
The SPONSOR will use its best efforts to afford small businesses, minority business
enterprises, and women's business enterprises the maximum practicable opportunity to
participate in the performance of this contract. As used in this contract, the terms "small
14
business" means a business that meets the criteria set forth in section 3 (a) of the Small Business
Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a
business at least fifty-one (51) percent owned and controlled by minority group members or
women. For the purpose of this definition, "minority group members" are Afro-Americans,
Spanish-speaking, Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and
American Indians. The SPONSOR may rely on written representations by businesses regarding
their status as minority and female business enterprises, in lieu of an independent investigation.
XVI. AFFIRMATIVE ACTION
The SPONSOR agrees that it shall be committed to carry out pursuant to the COUNTY's
specifications an Affirmative Action Program in keeping with the principles as provided in
President's Executive Order 11246 of September 24, 1966. The COUNTY shall provide
Affirmative Action guidelines to the SPONSOR to assist in the formulation of such program.
Prior to the award of funds, the SPONSOR shall submit for approval, a plan for an Affirmative
Action Program. The Affirmative Action Program will need to be updated throughout the
fifteen year affordability period and must be re -submitted to County within 30 days of each
update/modification.
XVII. CONFLICT OF INTEREST
The SPONSOR covenants that no person under its employ who presently exercises any
functions or responsibilities in connection with the Project, has any personal financial interest,
direct or indirect, in the Project areas or any parcels therein, which would conflict in any
manner or degree with the performance of this Agreement and that no person having any
conflict of interest shall be employed by or subcontracted by the SPONSOR. The SPONSOR
covenants that it will comply with al -provisions of FL 287.057(17) "Confliet of T...,.,.ese' and
''�'T'��� 200.318, and any additional State and County statutes, regulations, ordinance or
resolutions governing conflicts of interest. Any possible conflict of interest on the part of the
SPONSOR or its employees shall be disclosed, in writing, to CHS provided, however, that this
paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory
requirement that maximum opportunity be provided for employment of and participation of low
and moderate -income residents of the project target area.
The SPONSOR will notify the COUNTY, in writing, and seek COUNTY approval, prior to
entering into any contract with an entity owned, in whole or in part, by a covered person or an
entity owned or controlled, in whole or in part, by the SPONSOR. The COUNTY may review
the proposed contract to ensure that the contractor is qualified and that the costs are reasonable.
Approval of an identity of interest contract will be in the COUNTY's sole discretion. This
provision is not intended to limit the SPONSOR's ability to self -manage the projects using its
own employees.
XVIII. INCIDENT REPORTING
If services to clients are to be provided under this agreement, the SPONSOR and any
subcontractors shall report knowledge or reasonable suspicion of abuse, neglect, or exploitation
of a child, aged person, or disabled adult to the County.
15
XIX. RELIGIOUS ORGANIZATIONS
State funds may be used by religious organizations or on property owned by religious
organizations only in accordance with requirements set in Florida Statue, Chapter 196.01 l.The
SPONSOR shall comply with First Amendment Church/State principles as follows:
A. It will not discriminate against any employee or applicant for employment on the basis
of religion and will not limit employment or give preference in employment to persons
on the basis of religion.
B. It will not discriminate against any person applying for public services on the basis of
religion and will not limit such services or give preference to persons on the basis of
religion.
C. It will retain its independence from Federal, State and Local Governments and may
continue to carry out its mission, including the definition, practice and expression of its
religious beliefs, provided that it does not use direct State funds to support any
inherently religious activities, such as worship, religious instruction or proselytizing.
D. The funds shall not be used for the acquisition, construction or rehabilitation of
structures to the extent that those structures are used for inherently religious activities.
Where a structure is used for both eligible and inherently religious activities, SHIP
funds may not exceed the cost of those portions of the acquisition, construction or
rehabilitation that are attributable to eligible activities in accordance with the cost
accounting requirements applicable to SHIP funds in this part. Sanctuaries, chapels, or
other rooms that a SHIP funded religious congregation uses as its principal place of
worship, however, are ineligible for SHIP funded improvements.
XX. NATURAL DISASTER
In the event of a natural disaster, this Agreement may be suspended or terminated and funds
transferred to recovery activities as determined by the COUNTY. Funds subject to this
provision shall be those that are not contractually committed for construction, design or other
such third party private vendors.
XXI. ENFORCEMENT OF AGREEMENT
The benefits of this Agreement shall inure to, and may be enforced by the COUNTY for the
duration of the Agreement, whether or not the COUNTY shall continue to be the holder of the
Mortgage, whether or not the Project loan may be paid in full, and whether or not any bonds
issued for the purpose of providing funds for the project are outstanding. The SPONSOR
warrants that it has not, and will not, execute any other agreement with provisions contradictory
to, or in opposition to, the provisions hereof, and that, in any event, the requirements of this
Agreement are paramount and controlling as to the rights and obligations herein set forth and
supersede any other requirements in conflict herewith. However, this shall not preclude the
COUNTY from subordinating its loan to construction financing.
16
XXII. ACQUISITION, RELOCATION, AND DISPLACEMENT:
The SPONSOR acknowledges that the SPONSOR will bear sole responsibility for any costs or
reimbursements, legal or otherwise, from person or persons claiming that they have been
involuntarily displaced by the acquisition of real property associated with development of the
Project.
XXIII. COPYRIGHTS AND PATENTS
If this Agreement results in a book or other copyright materials or patent materials, The
SPONSOR may copyright or patent such, but Collier COUNTY and the State of Florida
reserve a royalty -free, nonexclusive, and irrevocable license to reproduce, publish or otherwise
use such materials and to authorize others to do so.
XXIV. FORCE MAJURE
The SPONSOR covenants and agrees that subject to matters of force majeure the work shall be
completed on or before Twelve (12) months from the date of this Agreement. This Agreement
shall be amended between the COUNTY and the SPONSOR when all permits have been issued
to set forth and determine the date of commencement of the work. Matters of force majeure
shall include, but not necessarily be limited to bonafide weather disturbances, strikes, shortages
of material, governmental delays, exclusive of those caused by or as a result of the fault of the
Construction Manager, and those matters over which the Construction Manager has no control.
Force majeure shall not be construed to reduce the obligation of the SPONSOR to timely
complete the project because of the failure of contractors and subcontractors to timely complete
their work, unless such delay is within the definition of the term force majeure.
XXV. COUNTERPARTS OF THE AGREEMENT
This Agreement, ~~ ` ~rt of thirty (30) enaffi,._,..,,a page,, and the exhibits and attachments
referenced herein, shall be executed in two counterparts, each of which shall be deemed to be an
original, and such counterparts will constitute one and the same instrument.
17
IN WITNESS WHEREOF, the SPONSOR and the County, have each, respectively, by an authorized
person or agent, hereunder set their hands and seals on the date first written above.
ATTEST:
DWIGHT E. BROCK, CLERIC
, Deputy Cleric
(SEAL)
BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA
In
PENNY TAYLOR, CHAIRMAN
Date
Big Cypress Housing Corporation
18
Signature
Steve Kirk, President
Date
Approved as to form and legality:
Jennifer A. Belpedio
Assistant County Attorney
313 1 0
EXHIBIT A -"H"
INSURANCE REQUIREMENTS
The SPONSOR shall furnish to Collier County, c/o Community and Human Services Division, 3339 E.
Tamiami Trail, Suite 211, Naples, Florida 34112, Certificate(s) of Insurance evidencing insurance
coverage that meets the requirements as outlined below:
Workers' Compensation as required by Chapter 440, Florida Statutes.
2. Commercial General Liability including products and completed operations insurance
in the amount of $1,000,000 per occurrence and $2,000,000 aggregate. Collier County
must be shown as an additional insured, with respect to this coverage.
3. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used
in connection with this contract in an amount not less than $1,000,000 combined single
limit for combined Bodily Injury and Property Damage. Collier County shall be named
as an additional insured.
DESIGN STAGE (IF APPLICABLE)
In addition to the insurance required in 1 — 3 above, a Certificate of Insurance must be provided as
follows:
Professional Liability Insurance in the name of the SPONSOR or the licensed design
professional employed by the SPONSOR, in an amount not less than $1,000,000 per
occurrence/$1,000,000 aggregate, providing for all sums which the SPONSOR and/or
the design professional shall become legally obligated to pay as damages for claims
arising out of the services performed by the SPONSOR or any person employed by the
SPONSOR, in connection with this contract. This insurance shall be maintained for a
period of two (2) years after the certificate of Occupancy is issued. Collier County shall
be named as an additional insured.
CONSTRUCTION PHASE (IF APPLICABLE)
In addition to the insurance required in 1 — 4 above, the SUBRECIPEINT shall provide or cause its
Subcontractors to provide original certificates indicating the following types of insurance coverage
prior to any construction:
5. Completed Value Builder's Risk Insurance on an "All Risk" basis in an amount not less
than one hundred (100%) percent of the insurable value of the building(s) or
structure(s). The policy shall be in the name of Collier County and the SPONSOR.
6. In accordance with the requirements of the Flood Disaster Protection Act of 1973 (42
U.S.C. 4001), the SPONSOR shall assure that for activities located in an area identified
by the Federal Emergency Management (FEMA) as having special flood hazards, flood
insurance under the National Flood Insurance Program is obtained and maintained as a
condition of financial assistance for acquisition or construction purposes (including
rehabilitation).
19
OPERATION/MANAGEMENT PHASE (IF APPLICABLE)
After the Construction Phase is completed and occupancy begins, the following insurance must be kept
in force throughout the duration of the loan and/or contract:
Workers' Compensation as required by Chapter 440, Florida Statutes.
8. Commercial General Liability including products and completed operations insurance
in the amount of $1,000,000 per occurrence and $2,000,000 aggregate. Collier County
must be shown as an additional insured with respect to this coverage.
9. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used
in connection with this contract in an amount not less than $1,000,000 combined single
limit for combined Bodily Injury and Property Damage. Collier County as an additional
insured.
10. Property Insurance coverage on an "All Risk" basis in an amount not less than one
hundred (100%) of the replacement cost of the property. Collier County must be shown
as a Loss payee with respect to this coverage A.T.LM.A.
11, Flood Insurance coverage for those properties found to be within a flood hazard zone
for the full replacement values of the structure(s) or the maximum amount of coverage
available through the National Flood Insurance Program (NFIP). The policy must show
Collier County as a Loss Payee A.T.I.M.A.
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EXHIBIT BA
RENTAL REHABILITION PROJECT REQUIREMENTS
1.) PROJECT DESCRIPTION
The Project is for the rehabilitation of existing affordable residential rental housing at
Mainstreet Village, an affordable housing community, located at 104 Anhinga Circle,
Immokalee, Florida which consists of seventy-nine (79) one-story rental apartments.
The project will be in accordance with the SHIP Program and the Collier County 2013-
2016 Local Housing Assistance Plan (LHAP) w 2013 2016. The SPONSOR shall
perform the following activity under this agreement:
a) Rehabilitate existing rental prepef�y
a. Rehabilitation to rental units including, but not limited to, building permits: interior and
exterior building repairs, and site improvements to landscape, private sidewalks, parking
and streets,•
b. Maximum $30,000 per unit.
The SPONSOR is required to comDly with all aDnlicable urogram requirements of the State
Housing Initiatives Partnership (SHIP) Program, including but not limited to Section 420.907
420.9079, Florida Statutes and Rule 67-37, Florida Administrative Code. AU or all of these
regulations may, but are not required to, be specifically set forth in any additional loan
documents executed in connection with the Loan.
21
.- ,
■„.,
..
- ■ .,
. ..
_ - �•
No
21
.- ,
21
2.) Tenant Eligibility, Income & Rent Requirements:
The SPONSOR shall determine and verify the income eligibility of tenants in
accordance with HUD Section 8 housing assistance programs in 24 CFR Part 5 for
the Project. Income shall be calculated by annualizing verified sources of income for the
household as the amount of income to be received by a household, during the 12
months, following the effective date of the determination.
The Annual Gross Income, as defined in Section 420.9071(4), ES, must be used and the
SHIP Program income limits cannot be exceeded. The SPONSOR shall maintain
complete and accurate income records pertaining to each tenant occupying a SHIP -
assisted unit. Onsite inspeetions will H ..ducted ammally upeii reaseflable prix
.:t e .tet ee to verify eompliance with tenant : o . of 4s n the ...... u i prepe".J
lµ the
standards as stated in Seefieii 120.907 420.9079, Florida Stffttites and Rule 67
,
Flef:,1ria Administrative Code, as the), may be a ,...,7,.,1 f.,.m time to time
A minimum of forty (40) units assisted shall be occupied by tenants whose total
household income does not exceed 50% of the median annual income adjusted for
family size for households as defined by the Department of Housing and Urban
Development (HUD). SPONSOR may voluntarily increase the number of units assisted
within this income category.
While occupying the rental unit a very -low income household's annual income may
increase to an amount not to exceed 140 percent of the area's median income adjusted
for family
Rent on these units shall be restricted to the SHIP Program rent limits. Maximum
rent limits are revised annually and can be found at:
http://apps.floridahousing.org/StandAlone/FHFC ECM/AppPage ListPage aspx?PageID=36
3.) Restriction on Use: The SPONSOR is required to comply with all applicable program
requirements of the State Housing Initiatives Partnership (SHIP) Program, including but
not limited to Section 420.907-420.9079, Florida Statutes and Rule 67-37, Florida
Administrative Code. Any or all of these regulations may, but are not required to, be
specifically set forth in any additional loan documents executed in connection with the
Loan. The SPONSOR shall include such language as the County may require in any
agreements with prospective tenants of the Project, or any portion, thereof to evidence
22
........ -...
11 ��� ��
2.) Tenant Eligibility, Income & Rent Requirements:
The SPONSOR shall determine and verify the income eligibility of tenants in
accordance with HUD Section 8 housing assistance programs in 24 CFR Part 5 for
the Project. Income shall be calculated by annualizing verified sources of income for the
household as the amount of income to be received by a household, during the 12
months, following the effective date of the determination.
The Annual Gross Income, as defined in Section 420.9071(4), ES, must be used and the
SHIP Program income limits cannot be exceeded. The SPONSOR shall maintain
complete and accurate income records pertaining to each tenant occupying a SHIP -
assisted unit. Onsite inspeetions will H ..ducted ammally upeii reaseflable prix
.:t e .tet ee to verify eompliance with tenant : o . of 4s n the ...... u i prepe".J
lµ the
standards as stated in Seefieii 120.907 420.9079, Florida Stffttites and Rule 67
,
Flef:,1ria Administrative Code, as the), may be a ,...,7,.,1 f.,.m time to time
A minimum of forty (40) units assisted shall be occupied by tenants whose total
household income does not exceed 50% of the median annual income adjusted for
family size for households as defined by the Department of Housing and Urban
Development (HUD). SPONSOR may voluntarily increase the number of units assisted
within this income category.
While occupying the rental unit a very -low income household's annual income may
increase to an amount not to exceed 140 percent of the area's median income adjusted
for family
Rent on these units shall be restricted to the SHIP Program rent limits. Maximum
rent limits are revised annually and can be found at:
http://apps.floridahousing.org/StandAlone/FHFC ECM/AppPage ListPage aspx?PageID=36
3.) Restriction on Use: The SPONSOR is required to comply with all applicable program
requirements of the State Housing Initiatives Partnership (SHIP) Program, including but
not limited to Section 420.907-420.9079, Florida Statutes and Rule 67-37, Florida
Administrative Code. Any or all of these regulations may, but are not required to, be
specifically set forth in any additional loan documents executed in connection with the
Loan. The SPONSOR shall include such language as the County may require in any
agreements with prospective tenants of the Project, or any portion, thereof to evidence
22
such requirements.
4.) Default of Subordinate Mortgage: The Subordinate Mortgage and Note shall provide
that a default shall occur if:
a. Sale; if proceeds are not sufficient to pay off the mortgage note, then the property owner
(not-for-profit or for profit) may contact the County regarding a settlement amount of
the SHIP loan.
b. Title transfer, either voluntarily or by operation of law, divested of title by judicial sale,
levy or other proceedings, including foreclosure or Deed in Lieu.
c. Refinance; a refinance of the first mortgage may be approved without repayment if the
request is submitted in writing and the refinance is at a lower fixed rate, with no cash
out, in accordance with the "Subordination Policy".
d. Property will no longer serve the intended target population.
Other defaults that may trigger repayment, if not cured within any applicable cure or
notice period following a monitoring:
€e Lack of compliance by the SPONSOR with the State statutes or County Codes,
which has not been corrected within thirty days of written notice from the County;
... ..
h.f. The SPONSOR abandons, and/or ceases to use the Property as affordable rental
housing to tenants, without the prior written approval of the County;
Subject to the rights of USDA Rural Development as First Mortgagee, and Florida
Housing as Second Mortgagee, the outstanding Loan balance shall become due and
payable upon default of this Agreement, the Mortgage or the Note, if not cured within
any applicable cure or notice period.
Assurance of Public Purpose: -The SPONSOR covenants that if the SPONSOR is
unable or unwilling to develop the property in accordance with the terms and conditions
incorporated herein, no lease, sale, or title transfer to any third party shall occur prior to
giving the COUNTY, a 90 (Ninety) day notification, during which time the COUNTY
shall have the right, solely at the COUNTY'S discretion, to purchase or find another
SPONSOR to purchase the Project, in order to carry out the eligible activities of the
SHIP Program, for an amount not to exceed the amount of funds provided by the
COUNTY through the Program.
6. Affirmative Marketing: The SPONSOR shall adopt appropriate procedures for
23
h.f. The SPONSOR abandons, and/or ceases to use the Property as affordable rental
housing to tenants, without the prior written approval of the County;
Subject to the rights of USDA Rural Development as First Mortgagee, and Florida
Housing as Second Mortgagee, the outstanding Loan balance shall become due and
payable upon default of this Agreement, the Mortgage or the Note, if not cured within
any applicable cure or notice period.
Assurance of Public Purpose: -The SPONSOR covenants that if the SPONSOR is
unable or unwilling to develop the property in accordance with the terms and conditions
incorporated herein, no lease, sale, or title transfer to any third party shall occur prior to
giving the COUNTY, a 90 (Ninety) day notification, during which time the COUNTY
shall have the right, solely at the COUNTY'S discretion, to purchase or find another
SPONSOR to purchase the Project, in order to carry out the eligible activities of the
SHIP Program, for an amount not to exceed the amount of funds provided by the
COUNTY through the Program.
6. Affirmative Marketing: The SPONSOR shall adopt appropriate procedures for
23
affirmatively marketing the SHIP -assisted units. Affirmative marketing consists of good
faith efforts to provide information and otherwise to attract to the available housing,
eligible persons from all racial, ethnic and gender groups in the housing market area.
The SPONSOR shall be required to use affirmative fair housing marketing practices in
soliciting renters, determining eligibility, concluding transactions, and affirmatively
further fair housing efforts. The SPONSOR must maintain a file containing all
marketing efforts (i.e. copies of newspaper ads, memos of phone calls, copies of letters,
etc.) to be available for inspection on request by the COUNTY. The SPONSOR must
provide a description of intended actions that will inform and otherwise attract eligible
persons from all racial, ethnic, and gender groups in the housing market of the available
housing. The SPONSOR must provide the COUNTY with an assessment of the
affirmative marketing program. Assessment must include: a) methods used to inform
the public and potential renters about federal fair housing laws and affirmative
marketing policy, b) methods used to inform and solicit applications from persons in the
housing market who are not likely to apply without special outreach; and c) records
describing actions taken by the participating entity and/or owner to affirmatively market
units; and records to assess the results of these actions.
7. Tenant Leases and Protections: Tenants applying for rental housing units shall be
qualified on a first -qualified, first-served basis. Tenants must be income -eligible and
of the Florida Landlord Tenant Act defined in Chapter 83 Part II of the Florida Statutes,
SHIP Program, and COUNTY requirements, which prohibit certain lease terms. All
tenant leases for assisted units shall be expressly subordinate to the Mortgage and shall
contain clauses, among others, wherein each individual lessee:
A. Agrees that the household income, household composition and other eligibility
requirements shall be deemed substantial and material obligations of the
tenancy; that the tenant will comply promptly with all requests for information
with respect thereto from the SPONSOR or the COUNTY, and that tenant's
failure to provide accurate information about household income or refusal to
comply with a request for information with respect thereto shall be deemed a
violation of a substantial obligation of his/her tenancy; and
B. Agrees not to sublease to any person or family who does not meet income
qualifications as determined, verified, and certified by the SPONSOR; and
C. States that the rental unit is the primary residence of the tenant; and
D. Agrees that the lease shall be for a one-year period, unless other terms are
mutually agreed upon by the SPONSOR and tenant.
The SPONSOR will submit to the County, a copy of the tenant/owner lease agreement.
Prior to signing by the tenant, the lease will be reviewed for compliance with
affirmative marketing, tenant selection and SHIP provisions stated in Section 420.907-
420.9079, Florida Statues and Rule 67-37, Florida Administrative Code.
8. Project Requirements: The SPONSOR agrees to not undertake any activity that may
adversely affect historic or environmental sensitivity of the site and to mitigate any
findings identified in an environmental assessment. The SPONSOR agrees that in the
24
event that the Project is located in a Designated Flood Zone, all government
requirements for construction in a flood zone shall be satisfied.
�MUMMWA • . .
WIN
9. Property Standards: The SPONSOR attests that the Project will meet the standards of
the Florida Building Code and all applicable local codes, standards, ordinances, and
zoning ordinances at the time of project completion and throughout the duration of the
affordability period. The Project will also meet the accessibility requirements at 24 CFR
part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and covered multifamily dwellings, as defined at 24 CFR 100.201, and the design and
construction requirements at 24 CFR 100.205, which implement the Fair Housing Act
(42 U.S.C. 3601-3619).
In accordance with the Local Housing Assistance Plan, a sponsor shall follow each
SHIP Program strategy program requirements below:
Energy Efficient Best Practices: Section 420.9075(3)(d), F.S. defines Energy Efficient
Best Practices as: Innovative design, green building principles, storm resistant
construction or other elements that reduce long term costs relating to maintenance,
utilities or insurance.
Collier County requires the use or inclusion, when appropriate, of the following: energy
star appliances; low -E windows; additional insulation (for increased R -value); ceramic
tile; tank -less water heater; 14 and 15 SEER air conditioning units; stucco; florescent
light bulbs; and impact resistant windows and doors.
Ram =—
.. ..
25
EXHIBIT t✓B
Budget Narrative
Rental Rehabilitation
The total SHIP allocation to the SPONSOR for the Rental Rehabilitation, Program shall not exceed
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00).
Sources for these funds are as follows:
SHIP Fundinn Fiseal-Year Rental Rehab TOM
2#14-204-5-2015-2016 $500,000.00 .$500 000.08
Total Funds $500,000.00 $500,008.-88
Uses of these fiends are as follows:
Funds shall be disbursed in the following manner for the following uses:
1. Rehabilitation expenditure per dwelling unit: The expenditure per dwelling unit may not
exceed $ 30, 000
2. Rehabilitation expenditure per property shall not exceed $500,000.
3. The initial disbursement will be :ss„oa `bilewifig eiie ..,.:,... e f agreement and occur
monthly -tee shall be upon submission of Exhibit "D" (Request for Pam).
4. Sponsor shall provide proof of expenditures to equal Initial advance prior to receiving the
second lean disbursement.
W.
EXHIBIT DC
REPORTS
Report Title Documentation Required Due Date
Quarterly Report
Progress report detailing
accomplishments
10 days after the end of the
calendar quarter
invoice c ,. n 1..anee
Reeeneiliation
all
Exhibit ;t > e., neeessary
.1...... ffient..tiei
stTpeftiffg
�n 1eafter. e a ot1 e
.,
....ILII
AdvaneeExhibit
E Promissory Note ..«,1
Me.. gage (,,.;ti,.1 re,.,,est)
2x ,i,...ing grant «erind( initial
feqttest 30 ,lays fal e..,;,,... rant
e#e^•caLivrr7
Insurance
Proof of coverage in accordance
with Exhibit A/Declaration page
Annually within 30 days after
renewal
SPONSOR Audit
Audit report, Management
Letter and Exhibit G
Within 9 months after the end of
the SPONSOR fiscal year
through 2031
Quarterly Operating Statement
Revenue and Expense and all
necessary supporting
documentation as requestesd
10 days after the end of the
calendar qii r year.
Tenant/Lease A gree«,,.«t
Lease
84«..;t ,... i6f t..signing by first
tenant and .. adde,..1,.,..., e
e1,anges thereafter through the
Y
Special Grant Palieies
Conditions
See Section III (B)
Within 60 days of contract
execution.
Project Schedule
See Section III (A)
Within 30 days of contract
execution.
27
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Authorizing
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o
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EXHIBIT "D"
REQUEST FOR PAYMENT
Contract Period:
The Amy has incurred the indebtedness listed below between and
SECTION II:
1.
Grant Amount Awarded
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 Re -guests
5.
Amount of Today's =RSquest
6.
Current Grant Balance (Initial Grant Amount Awarded Less Sum of all
requests)
I certify that this request for payment has been made in accordance with the terms and conditions of the
Agreement between the COUNTY and us as the SPONSOR. To the best of my knowledge and belief, all grant
requirements have been followed.
Signature
Title
Date
Authorizing Grant Coordinator Authorizing Grant Accountant
Supervisor Department Director
(approval required $15,000 and above) (approval required $15,000 and above)
29
-WEN
30
EXHIBIT "E"
QUARTERLY PROGRESS REPORT
Complete form for preceding quarter and submit to Community and Hannan Services staff by the 10th of the
following quarterly month.
Sponsor Name:
Quarter Year: Period Ending: 3/31 6/30 9/30 12/31
Project Name:
Contact Person:
Describe what actions have been taken and total funds expended on this proiect duringthis his quarter period.
What events/actions are scheduled for the next month?
Identify any issues that may cause delay in meeting scheduled expenditure deadline dates.
Signature
Title
31
EXHIBIT F"
ANNUAL AUDIT MONITORING REPORT
Circular 2 CFR 200.500 requires Collier County to monitor SPONSOR of federal awards to determine if SPONSOR are
compliant with established audit requirements. Accordingly, Collier County requires that all appropriate documentation
is provided regarding your organizations compliance.
In determining Federal awards expended in a fiscal year, the entity must consider all sources of Federal awards based'
on when the activity related to the Federal award occurs, including any Federal award provided by Collier County. Then
determination of amounts of Federal awards expended shall be in accordance with the guidelines established by OMB
Circular A-133, for fiscal years beginning before December 26, 2014, and established by 2 CFR Part 200 Subpart F —r
Audit Requirements, for fiscal years beginning on or after December 26 2014. This form may be used to monitor`
Florida Single Audit Act Statute 215.97 requirements.
SPONSOR
Name'
First Date of Fiscal Year MM/DD/YY
Last Date of Fiscal Year MMIDD/YY
Total Federal Financial Assistance Expended
Total State Financial Assistance Expended during most
during most recently completed Fiscal Year
recently completed Fiscal Year
Check A or B. Check C if applicable.
The federal/state expenditure threshold for our fiscal year ending as indicated above has been met and a
❑
Circular A-133 or 2 CFR Part 200, Subpart F Single Audit has been completed or will be completed by
. Copies of the audit report and management letter are attached or will be provided within 30
days of completion.
We are not subject to the requirements of OMB Circular A-133 or 2 CFR Part 200,
Subpart F because we:
❑
❑ Did not exceed the expenditure threshold for the fiscal year indicated above
❑ Area for-profit organization
❑ Are exempt for other reasons explain
An audited financial statement is attached and if applicable, the independent auditor's management letter.
Findings were noted, a current Status Update of the responses and corrective action plan is included separate
from the written response provided within the audit report. While we understand that the audit report contains a
❑
written response to the finding(s), we are requesting an updated status of the corrective action(s) being taken.
Please do not provide just a copy of the written response from your audit report, unless it includes details of
the actions, procedures, policies, etc. implemented and when it was or will be implemented.
Certification Statement
I hereby certify that the above information is true and accurate.
Signature
Date
Print Name and Title
32
EXHIBIT L'W "G"
COLLIER COUNTY
CONSTRUCTION REHAB PROGRAM MANUAL OF PRACTICE
SELECTIVE REHAB PROCEDURES as may be amended from time to time.
REFERENCE DATE: JUNE 24, 2014
ITEM # 16D.1
PAGE LEFT BLANK INTENTIONALLY
33
Grant - SHIP FY 2014-2015
Activity: - Rental Rehabilitation
SPONSOR: - Big Cypress Housing
Corporation
DUNS # - 064723252
CSFA # - 52.901
AGREEMENT BETWEEN COLLIER COUNTY
AND
BIG CYPRESS HOUSING CORPORATION
THIS AGREEMENT is made and entered into this oZ$ day of 2016,
by and between Collier County, a political subdivision of the State of Flo ' a, ('COUNTY" or
Grantee") having its principal address as 3339 E. Tamiami Trail, Suite 211, Naples FL 34112, and Big
Cypress Housing Corporation a private not-for-profit corporation existing under the laws of the State
of Florida, having its principal office 19308 SW 380th Street, Florida City, FL 33034
("SPONSOR").
WHEREAS, the COUNTY is the recipient of State Housing Initiatives Partnership Program
(SHIP) Program funds; and
WHEREAS, pursuant to the SHIP Program, the COUNTY is undertaking certain activities to
primarily benefit persons or households earning not greater than 50% of median annual income
adjusted for family size; and
WHEREAS, the Fiscal Years 2013-2016 Local Housing Assistance Plan, as amended, was
adopted by the Board of County Commissioners on April 23, 2013, Resolution No. 2013-94 (16.D.5)
and further amended on March 22, 2016 Resolution No 2016-58 (Item I ID) and
WHEREAS, the COUNTY and the SPONSOR desire to provide rental rehabilitation in
accordance with this Agreement and the aforementioned Local Housing Assistance Plans; and
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, it is agreed by the Parties as follows:
I. DEFINITIONS AND PURPOSE
A. DEFINITIONS
Terms shall be as defined in the State Housing Incentives Partnership (SHIP) Program,
Florida Statute 420.9071 and Chapter 67-37 of the Florida Administrative Code, and any
amendments thereto (also referred as the SHIP Program).
B. PURPOSE
N
The purpose of this Agreement is to state the terms and conditions under which the
SPONSOR will implement the Scope of Service summarized in Section II of this
Agreement.
II. SCOPE OF SERVICE
The SPONSOR shall, in a satisfactory and proper manner as determined by the COUNTY,
perform the necessary tasks to administer and implement the described services herein
incorporated by reference as Exhibits B — C (Rental Rehabilitation Project Requirements and
Budget Narrative) in accordance with the terms and conditions of Requests for Applications,
Rental Rehabilitation/Rental Rehabilitation and Acquisition or Acquisition, State Housing
Initiatives Partnership Funding Cycle Fiscal Years 2014-2015 and 2015-2016 SPONSOR's
Application dated March 21, 2016.
III. SPECIAL GRANT CONDITIONS
A. Within 30 days of the execution of this Agreement, the SPONSOR must deliver to CHS
for approval a detailed project schedule for the implementation through completion of
the project to include staff assignment.
B. The following resolutions and policies must be adopted, if not previously adopted, by
the SPONSOR's governing body within 60 days of contract execution:
1. Affirmative Fair Housing Policy
2. Procurement Policy including Code of Conduct
3. Affirmative Action Policy
4. Conflict of Interest Policy
5. Equal Opportunity Policy
6. Sexual Harassment Policy
7. Procedures for meeting the requirements set forth
Rehabilitation Act of 1973, as amended (29 U.S.C. 794)
8. Fraud Policy
9. Tenant Waitlist Policy
10. Tenant Grievance Policy
11. Tenant Guidelines (Income)
IV. TIME OF PERFORMANCE
in Section 504 of the
This Agreement shall be in effect from June 1, 2016 through June 30, 2017 for FY 14-15
funding, and all services required hereunder shall be completed in accordance with the schedule
set forth in Exhibit B (Rental Rehabilitation Project Requirements). This agreement must
remain in effect throughout the development process of the Project and is terminated upon
completion of acquisition and rehabilitation, rehabilitation and initial lease -up of all units,
including all SHIP -assisted units.
It is expressly agreed and understood that the total amount to be disbursed by the COUNTY for
the use by the SPONSOR during the term of the Agreement shall not exceed FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00).
The budget identified for the Project shall be as follows
Line Item Description
SHIP Funds
Project Component One: Rehabilitation to rental
units. (Maximum $30,000.00 per unit)
$500,000.00
TOTAL
$ 500,000.00
Modifications to the "Budget and Scope" may only be made if approved in advance by the
COUNTY. Budgeted fund shifts between cost categories and activities shall not be more than
10% and does not signify a change in scope. Fund shifts that exceed 10% of a cost category
and activity shall only be made with Board approval.
All services specified in Section II. Scope of Services shall be performed by SPONSOR
employees, or shall be put out to competitive bidding under a procedure acceptable to the
COUNTY and State requirements. The SPONSOR shall enter into contract for improvements
with the lowest, responsive and qualified bidder. Contract administration shall be handled by
the SPONSOR and monitored by CHS, which shall have access to all records and documents
related to the project.
The County will secure the awarded amount with a note and mortgage. The Note will bear
interest at 0% percent interest per year.
If the SPONSOR complies with the terms and conditions of this Agreement, then the lien
established by the Mortgage shall expire as set forth in the Mortgage.
If the SPONSOR offers the Property for sale before fifteen (15) years after the SPONSOR's
receipt of the Certificate of Occupancy, or at any other time when there are existing mortgages
on the Property funded under the SHIP program, then the SPONSOR must give a right of first
refusal (ROFR) for a 90 day period, to experienced non-profit organizations, reasonably
approved by the County for purchase of the Property, at the then current market value, for
continued occupancy by eligible persons. The 90 day right of first refusal period begins when a
legal advertisement appears in a local newspaper of general circulation or other method
authorized by statute or regulation offering the Property for sale to non-profit organizations.
County approval of any nonprofit organization submitting an offer of the full requested sale
price or any other offer considered in the sole determination of the SPONSOR to be reasonable,
will be based on the criteria listed in the affordable multi -family rental housing development
strategy sponsor selection criteria, in the County's FY 2013-2016 SHIP Local Housing
Assistance Plan. If either (a) the 90 -day right of first refusal period expires and the SPONSOR
is not then a party to an active contract for purchase and sale of the Property, with an eligible
nonprofit organization, reasonably approved by the County; or (b) a contract for purchase and
sale of the Property is entered into by the SPONSOR and an eligible nonprofit organization,
( reasonably approved by the County, within such 90 -day ROFR period but terminated by either
party pursuant to the terms thereof subsequent to the 90 -day period then the SPONSOR can
offer the property for the fair market value for continued occupancy with eligible tenants.
The County shall provide an initial loan disbursement of $250,000 for rehabilitation activities
and will reconcile actual expenditures reported to the funds disbursed to the Sponsor based on
the properly completed Invoice with an accompany AIA or equivalent documentation. Once
the initial loan disbursement is reconciled and expended by the Sponsor, the Sponsor shall
submit a final loan request for $250,000 until all fiords are disbursed not to exceed $500,000.
All funds are secured by a promissory note and mortgage signed prior to the disbursement of
any funds to secure the funds. Should the SPONSOR fail to perform the promissory note will
be due and payable for the amount disbursed to date.
Any funds disbursed to the Sponsor that are not expended or were determined to have been
expended for unallowable costs shall be considered overpayment to the Sponsor. The County
shall recoup such overpayments. In the event an overpayment is identified after the end of the
contract and no further invoice is due, the Sponsor shall remit the overpayment to the County
via check.
The County shall release a check in the amount of $250,000 upon entering an agreement with
SPONSOR for Rental Rehabilitation funds and secure a 0% subordinate mortgage and
forgivable note for the rehabilitation. Thereafter the SPONSOR will request a second loan
disbursement upon submission and approval by CHS of SPONSOR'S AIA documentation that
shows funds have been expensed properly and in a timely manner for the initial loan
disbursement. The SPONSOR shall ensure the performance of this Agreement. The second
loan disbursement for rehabilitation will not occur if the SPONSOR fails to perform the
minimum level of service required by this Agreement. Final reconciliation invoices are due no
later than 90 days after the end of this Agreement.
No disbursements will be made until approved by CHS and the Collier County Clerk of Courts
for grant compliance and adherence to any and all applicable local, state or federal
requirements. The second loan disbursement will be made upon receipt of a properly completed
invoice and in compliance with §218.70, Florida Statutes, otherwise known as the "Local
Government Prompt Payment Act."
The COUNTY reserves the right to withhold any future loan disbursements as a result of
incomplete or altered invoices, inadequately documented expenses, or expenses for items and
services the COUNTY deems not to be usual, customary and reasonable expenses related to
improvements of the Project. Additionally, the COUNTY reserves the right to not pay any
contractor, subcontractor, material men or supplier wherein a dispute arises.
The COUNTY shall provide the second loan disbursement for the rehabilitation work
performed based on the SPONSOR'S delivery to the COUNTY (i) an invoice, and subsequent
documents to support the first loan disbursement to include but not limited to (ii) AIA G703,
(iii) second loan disbursement request, (iv) the delivery of an executed Partial Release of Lien
or Final Release of Lien for the work associated with the application for second loan
disbursement, and (v) such other documentation and information as reasonably requested by
a
-Po
the COUNTY. All disbursements by the COUNTY will be made to the SPONSOR who shall
be responsible for paying the Contractor. Notwithstanding anything herein to the contrary, the
( COUNTY shall have no obligation to fund the work if (i) the SPONSOR is in default under the
terms of this Agreement or any other agreement between the SPONSOR and the COUNTY, or
(ii) the request includes items not in a budget approved by the COUNTY. The COUNTY has
the right, to be exercised in its sole and absolute discretion, to delay funding of the work until
such time that it receives a title endorsement from a nationally recognized title insurance
company providing that the Property and the improvements thereon, are free from construction
liens, if applicable. The SPONSOR shall comply with Chapter 713, Florida Statutes in all
respects.
VI. NOTICES
Notices required by this Agreement shall be in writing and delivered via mail (postage
prepaid), commercial courier, or personal delivery or sent by facsimile or other electronic
means. Any notice delivered or sent as aforesaid shall be effective on the date of delivery or
sending. All notices and other written communications under this Agreement shall be addressed
to the individuals in the capacities indicated below, unless otherwise modified by subsequent
written notice.
COLLIER COUNTY ATTENTION: Raynesha Hudnell, Grant Coordinator
Collier County Government
Community and Human Services
3339 E Tamiami Trial, Suite 211
Naples, Florida 34112
Email to: RavneshaHudnell@Colliergov.net
Phone: 239-252-5312
SPONSOR ATTENTION: Steve Kirk, President
Big Cypress Housing Corporation
19308 SW 380" Street, POB 343529
Florida City, FL 33034
Email to: Stevekirk@ruralneighborhoods.org
Phone: 305-242-2142
VII. GENERAL CONDITIONS
A. GENERAL COMPLIANCE
The SPONSOR agrees to comply with the requirements as outlined in Section 420.907
of the Florida Statutes and Chapter 67-37 of the Florida Administrative Code. The
SPONSOR also agrees to comply with all other applicable state and local laws,
regulations, and policies governing the funds provided under this Agreement. The
SPONSOR agrees to utilize funds available under this Agreement for Rental
Rehabilitation.
B. CODE OF ETHICS AND CONDUCT
The SPONSOR shall comply with the Code of Ethics and Conduct for Construction
Professionals developed by Construction Management Association of America (CMAA).
Adhering to this code of ethics is critical to demonstrating ethical conduct within the
construction industry. This code of ethics is not intended to replace, but rather to
supplement, any code of ethics that the SPONSOR already uses in their organization.
C. INDEPENDENT CONTRACTOR
Nothing contained in this Agreement is intended to, or shall be construed in any manner,
as creating or establishing the relationship of employer/employee between the parties.
The SPONSOR shall at all times remain an "independent contractor" with respect to the
services to be performed under this Agreement. The COUNTY shall be exempt from
payment of all Unemployment Compensation, FICA, retirement benefits, life and/or
medical insurance and Workers' Compensation Insurance, as the SPONSOR is an
independent SPONSOR.
D. WORKERS' COMPENSATION
The SPONSOR, its contractors and subcontractors, shall provide Workers'
Compensation Insurance coverage for all of its employees involved in the performance
of this contract.
E. INSURANCE
The SPONSOR shall furnish a Certificate of Insurance naming Collier County as an
additional insured with general liability limits of at least $1,000,000 per occurrence in
accordance with Exhibit A.
F. INDEMNIFICATION
To the maximum extent permitted by Florida law, the SPONSOR shall indemnify and
hold harmless Collier County, its officers, agents and employees from any and all
claims, liabilities, damages, losses, costs, and causes of action which may arise out of
an act, or omission, including, but not limited to, reasonable attorneys' fees and
paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of the SPONSOR or any of its agents, officers, servants, employees,
contractors, patrons, guests, clients, licensees, invitees, or any persons acting under the
direction, control, or supervision of the SPONSOR in the performance of this
Agreement. This indemnification obligation shall not be construed to negate, abridge or
reduce any other rights or remedies which otherwise may be available to an indemnified
party or person described in this paragraph. The SPONSOR shall pay all claims and
losses of any nature whatsoever in connection therewith and shall defend all suits in the
name of the COUNTY and shall pay all costs (including attorney's fees) and
judgments which may issue there -on. This Indemnification shall survive the termination
and/or expiration of this Agreement. This section does not pertain to any incident
O
arising from the sole negligence of Collier County. The foregoing indemnification shall
not constitute a waiver of sovereign immunity beyond the limits set forth in Section
768.28, Florida Statutes.
G. GRANTOR RECOGNITION
Y,
The SPONSOR agrees that all notices, informational pamphlets, press releases,
advertisements, descriptions of the sponsorships of the Program, research reports and
similar public notices prepared and released by the SPONSOR for, on behalf of, and/or
about the Program shall include the statement:
"FINANCED BY FLORIDA HOUSING FINANCING COPORATION (FHFC)
AND COLLIER COUNTY COMMUNITY AND HUMAN SERVICES
DIVISION"
and shall appear in the same size letters or type as the name of the SPONSOR. This
design concept is intended to disseminate key information regarding the development
team as well as Equal Housing Opportunity to the general public. Construction signs
shall comply with applicable COUNTY codes.
H. AMENDMENTS
The COUNTY and/or SPONSOR may amend this Agreement, at any time, provided
that such amendments make specific reference to this Agreement, and are executed in
writing, signed by a duly authorized representative of each organization, and approved
by the Grantee's governing body. Such amendments shall not invalidate this
Agreement, nor relieve or release the Grantee or SPONSOR from its obligations under
this Agreement.
The COUNTY may, in its discretion, amend this Agreement to conform with federal,
state or local governmental guidelines, policies and available funding amounts, or for
other reasons. If such amendments result in a change in the funding, the scope of
services, or schedule of the activities to be undertaken as part of this Agreement, such
modifications will be incorporated only by written amendment signed by both Grantee
and SPONSOR.
Expiration of Agreement: If the SPONSOR does not complete the project within the
time period, the COUNTY Manager or designee may grant a cumulative time extension
of no more than 180 days and modify any subsequent project work plans to reflect the
extension.
I. SUSPENSION OR TERMINATION
Either party may terminate this Agreement, at any time, by giving written notice to the
other party of such termination, and specifying the effective date thereof, at least 90 days
before the effective date of such termination. In the event of any termination for
convenience, all finished or unfinished documents, data, reports or other materials
prepared by the SPONSOR under this Agreement shall, at the option of the COUNTY,
become the property of the COUNTY. The COUNTY may also suspend or terminate
( this Agreement, in whole or in part, if the SPONSOR materially fails to comply with any
term of this Agreement, or with any of the rules, regulations or provisions referred to
herein, in addition to other remedies as provided by law. If through any cause, the
SPONSOR shall fail to fulfill in a timely and proper manner its obligations under this
Agreement, or violates any of the covenants, agreements, or stipulations of this
Agreement, the COUNTY shall thereupon have the right to terminate this Agreement or
suspend loan disbursements in whole or part by giving written notice to the SPONSOR
of such termination or suspension of loan disbursements and specify the effective date
thereof, at least five (5) working days before the effective date of termination or
suspension.
See Section VII. G. — Corrective Action for escalation steps leading to suspension or
termination for non-compliance. If loan disbursements are withheld, Community and
Human Services Division staff shall specify in writing the actions that must be taken by
the SPONSOR as a condition precedent to resumption of loan disbursements and shall
specify a reasonable date for compliance. Sufficient cause for suspension of loan
disbursements shall include, but not be limited to:
Ineffective use of funds.
Failure to comply with Section II, Scope of Service of this Agreement.
Failure to submit periodic reports as determined by the COUNTY.
J. PURCHASING
All purchasing for services and goods, including capital equipment, shall be made by
purchase order or by a written contract and in conformity with the thresholds of Collier
County Purchasing Policy.
Purchasina Threshold Policy
Dollar Range ($
Quotes
Under $3K
1 Written Quote
$3K to $50K
3 Written Quotes
Above $50K
Request for Proposal (RFP)
Invitation for Bid (1FB)
VIII. ADMINISTRATIVE REQUIREMENTS
A. RECORDS TO BE MAINTAINED
The SPONSOR shall maintain all records required by the COUNTY that are pertinent
to the activities to be funded under this Agreement as established in Exhibit B (Rental
Rehabilitation Project Requirements).
B. RETENTION
01
The SPONSOR shall retain all records pertinent to expenditures incurred under this
Agreement for a period of five (5) fiscal years after the funds have been expended and
{ accounted for, provided applicable audits have been released. Notwithstanding the
above, if there is litigation, claims, audits, negotiations or other actions that involve any
of the records cited and that have started before the expiration of the five-year period,
then such records must be retained until completion of the actions and resolution of all
issues, or the expiration of the ten-year period, whichever occurs later.
C. DISCLOSURE
The SPONSOR shall maintain records in accordance with Florida's Public Information
Law (F. S. 119).
D. CLOSEOUTS
The SPONSOR's obligation to the COUNTY shall not end until all closeout
requirements are completed. Activities during this closeout period shall include, but not
be limited to: disposing of program assets (including the return of all unused materials,
equipment, program income balances, and receivable accounts to the COUNTY), close
out monitoring and determining the custodianship of records. In addition to the records
retention outlined in Section VIII.B, the SPONSOR shall comply with Section 119.021
Florida Statutes regarding records maintenance, preservation and retention. A conflict
between state and federal law records retention requirements will result in the more
stringent law being applied such that the record must be held for the longer duration.
Any balance of unexpended funds which have been disbursed must be returned to the
County. Any funds paid in excess of the amount to which the SPONSOR is entitled
under the terms and conditions of this Agreement must be refunded to the COUNTY.
The SPONSOR shall also produce records and information that complies with Section
215.97, Florida Single Audit Act. At the time of closeout, if not already done, the
County shall secure a note and mortgage on the property for the amount of SHIP funds
invested. The SPONSOR shall be responsible for ongoing reporting, subject to onsite
monitoring, tenant income qualification activities and continued use for a period of 15
years.
E. AUDITS AND INSPECTIONS
1. Audits
Pursuant to Florida Statute 215.97(6) (Florida Single Audit Act), in the event that
the SPONSOR expends a total amount of State awards equal to or in excess of $500,000
in any fiscal year of such SPONSOR, the SPONSOR must have a State single or
project -specific audit for such fiscal year in accordance with Section 215.97, Florida
Statutes; applicable rules of the Executive Office of the Governor and the Comptroller,
and Chapter 10.650, Rules of the Auditor General.
In connection with these audit requirements, the SPONSOR shall ensure that the
{ audit complies with the requirements of Section 215.97(7), Florida Statutes. This
includes submission of a reporting package as defined by Section 215.97(2)(d), Florida
Statutes, and Chapter 10.650, Rules of the Auditor General. The financial reporting
package must be delivered to the COUNTY within 45 days after delivery of the
financial reporting package to the SPONSOR but no later than 180 days after the
SPONSOR's fiscal year end. Submit the financial reporting package and Exhibit G to
the Grant Coordinator.
If the SPONSOR expends less than $500,000 in State awards in its fiscal year, an
audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, is
not required. In the event that the SPONSOR expends less than $500,000 in State
awards in its fiscal year and elects to have an audit conducted in accordance with the
provision of Section 215.97, Florida Statutes, the cost of the audit must be paid from
non -State funds.
2. Inspections
The SPONSOR'S records with respect to any matters covered by this Agreement shall
be made available to the COUNTY and/or the FHFC at any time during normal
business hours, as often as the COUNTY or the FHFC deems necessary, to audit,
examine, and make excerpts or transcripts of all relevant data..
F. MONITORING
The SPONSOR agrees that CHS will carry out no less than one (1) annual on-site
monitoring visit and evaluation activities as determined necessary for a period of fifteen
(15) years. At the COUNTY's discretion, a desk top review of the activities may be
conducted in lieu of an on-site visit. The continuation of this Agreement is dependent
upon satisfactory evaluations. The SPONSOR shall, upon the request of CHS, submit
information and status reports required by CHS to enable CHS to evaluate said progress
and to allow for completion of reports required. The SPONSOR shall allow CHS to
monitor the SPONSOR on site. Such site visits may be scheduled or unscheduled as
determined by CHS.
The COUNTY will monitor the performance of the SPONSOR based on goals and
performance standards as stated with all other applicable federal, state and local laws,
regulations, and policies governing the funds provided under this Agreement.
Substandard performance, as determined by the COUNTY, will constitute
noncompliance with this Agreement. If corrective action is not taken by the SPONSOR
within a reasonable period of time after being notified by the COUNTY, contract
suspension or termination procedures will be initiated. The SPONSOR agrees to
provide the COUNTY, or the COUNTY's internal auditor(s) access to all records
related to performance of activities in this agreement.
G. CORRECTIVE ACTION
Corrective action plans may be required for noncompliance, nonperformance, or
unacceptable performance under this Agreement. Penalties may be imposed for failures
to implement or to make acceptable progress on such corrective action plans.
In order to effectively enforce Resolution 2013-228, Community and Human Services
(CHS) Division has adopted an escalation policy to ensure continued compliance by
recipients, SPONSORS, or any entity receiving grant funds from CHS. CHS's policy
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for escalation for non-compliance is as follows:
d 1. Initial non-compliance may result in Findings or Concerns being issued to the
entity and will require a corrective action plan be submitted to the Division
within 15 days following the monitoring visit.
• Any pay requests that have been submitted to the Division for payment will be
held until the corrective action plan has been submitted.
CHS will be available to provide Technical Assistance (TA) to the entity as
needed in order to correct the non-compliance issue.
2. If in the case an Entity fails to submit the corrective action plan in a timely
manner to the Division, the Division may require a portion of the awarded grant
amount be returned to the Division.
• The Division may require upwards of five percent (5%) of the awarded amount
be returned to the Division, at the discretion of the CHS Director.
• The entity maybe considered in violation of Resolution 2013-228.
If in the case an Entity continues to fail to correct the outstanding issue or
repeats an issue that was previously corrected, and has been informed by the
Division of their substantial non-compliance, by certified mail; the Division may
require a portion of the awarded grant amount be returned to the Division.
• The Division may require upwards often percent (10%) of the awarded amount
be returned to the Division, at the discretion of the CHS Director.
• The entity will be considered in violation of Resolution 2013-228
If in the case after repeated notification the Entity continues to be substantially
non-compliant, the Division may recommend the contract or award be
terminated.
• The Division will make a recommendation to the Board of County
Commissioners to immediately terminate the agreement or contract. The Entity
will be required to repay all funds disbursed by the County for project that was
terminated.
The entity will be considered in violation of Resolution No. 2013-228
If in the case the Entity has multiple agreements with the Division and is found to be
non-compliant, the above sanctions may be imposed across all awards at the Director's
discretion.
H. DISBURSEMENT PROCEDURES
The Sponsor will retain a Licensed General Contractor, Architect and/or
Inspector who will perform a review and inspection of the Project prior to each
additional disbursement following the initial loan disbursement, verifying that the costs
claimed are allowable, unit rehabilitation is satisfactory, and reports are timely as
outlined under the provisions of this Agreement. Failure to submit required progress
reports in accordance with Exhibit D may result in disbursement delays as determined
by Community and Human Services.
I. PROGRESS REPORTS
The SPONSOR shall submit regular Quarterly Progress Report (Exhibit F) to the
COUNTY in the form, content and frequency required by the COUNTY.
IX. CIVIL RIGHTS COMPLIANCE
The SPONSOR agrees that no person shall, on the ground of race, creed, color, religion, national
origin, sex, handicap, familial status, marital status or age be excluded from the benefits of, or be
subjected to discrimination under any activity carried out by the SPONSOR in performance of this
Agreement. Upon receipt of evidence of such discrimination, the COUNTY shall have the right
to terminate this Agreement. The SPONSOR will take affirmative action to ensure that all
employment practices are free from such discrimination. Such employment practices include but
are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, termination, rate of pay or other forms of compensation, and selection for
training, including apprenticeship. The SPONSOR agrees to post in conspicuous places, available
to employees and applicants for employment, notices setting forth the provisions of this
nondiscrimination clause.
X. PROHIBITED ACTIVITY
The SPONSOR is prohibited from using funds provided herein or personnel employed in the
administration of the program for: political activities; sectarian or religious activities; lobbying,
political patronage, and nepotism activities.
XI. SEVERABILITY OF PROVISIONS
If any provision of this Agreement is held invalid, the remainder of this Agreement shall not
be affected thereby, if such remainder would then continue to conform to the terms and
requirements of applicable law.
XIL AVAILABILITY OF FUNDS
The parties acknowledge that the Funds originate from SHIP grant funds from FHFC and must
be implemented in full compliance with all of SHIP rules and regulations and any agreement
between COUNTY and FHFC governing FHFC funds pertaining to this Agreement. In the
event of curtailment or non -production of said state funds, the financial sources necessary to
continue to pay the SPONSOR all or any portions of the funds will not be available. In that
event, the COUNTY may terminate this Agreement, which termination shall be effective as of
the date that it is determined by the County Manager or designee, in his -her sole discretion and
judgment, that the funds are no longer available. In the event of such termination, the
SPONSOR agrees that it will not look to, nor seek to hold the COUNTY, nor any individual
member of the County Commissioners and /or County Administration, personally liable for the
performance of this Agreement, and the COUNTY shall be released from any further liability
to the SPONSOR under the terms of this Agreement.
XIII. DEFAULTS, REMEDIES, AND TERMINATION
This Agreement may also be terminated for convenience by either the County or the
SPONSOR, in whole or in part, by setting forth the reasons for such termination, the effective
date, and, in the case of partial terminations, the portion to be terminated. However, if in the
case of a partial termination, the County determined that the remaining portion of the award
will not accomplish the purpose for which the award was made, the County may terminate the
award in its entirety.
The following actions or inactions by the SPONSOR shall constitute a Default under this
Agreement:
A. Failure to comply with any of the rules, regulations or provisions referred to herein, or
such statutes, regulations, executive orders, and SHIP guidelines, policies or directives
as may become applicable at any time;
B. Failure, for any reason, of the SPONSOR to falfrll, in a timely and proper manner, its
obligations under this Agreement;
C. Ineffective or improper use of funds provided under this Agreement;
D. Submission, by the SPONSOR to the COUNTY, of reports that are incorrect or
incomplete in any material respect.
E. Submission by the SPONSOR of any false certification;
F. Failure to materially comply with any terms of this Agreement;
G. Failure to materially comply with the terms of any other agreement between the County
and the SPONSOR relating to the project.
In the event of any default by the SPONSOR under this Agreement, the County may seek any
combination of one or more of the following remedies:
Require specific performance of the Agreement, in whole or in part;
2. Require the use of, or change in, professional property management;
Require immediate repayment by the SPONSOR to the County of all SHIP
funds the SPONSOR has received under this Agreement;
4. Apply sanctions, if determined by the County to be applicable;
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5. Stop all payments, until identified deficiencies are corrected;
6. Terminate this Agreement by giving written notice to the SPONSOR of such
termination and specifying the effective date of such termination. If the
Agreement is terminated by the County as provided herein, the SPONSOR shall
have no claim of payment or claim of benefit for any incomplete project
activities undertaken under this Agreement.
XIV. OPPORTUNITIES FOR RESIDENTS
To the greatest extent feasible, lower-income residents of the project areas shall be given
opportunities for training and employment; and to the greatest feasible extent eligible business
concerns located in or owned in substantial part by persons residing in the project areas shall be
awarded contracts in connection with the project. The SPONSOR is encouraged to comply with
Section 3 of the Housing and Community Development Act of 1968.
XV. OPPORTUNITIES FOR SMALL AND MINORITY/WOMEN OWNED BUSINESS
ENTERPRISES
The SPONSOR will use its best efforts to afford small businesses, minority business
enterprises, and women's business enterprises the maximum practicable opportunity to
participate in the performance of this contract. As used in this contract, the terms "small
business" means a business that meets the criteria set forth in section 3(a) of the Small Business
Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a
business at least fifty-one (51) percent owned and controlled by minority group members or
women. For the purpose of this definition, "minority group members" are Afro-Americans,
Spanish-speaking, Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and
American Indians. The SPONSOR may rely on written representations by businesses regarding
their status as minority and female business enterprises, in lieu of an independent investigation.
XVI. AFFIRMATIVE ACTION
The SPONSOR agrees that it shall be committed to carry out pursuant to the COUNTY'S
specifications an Affirmative Action Program in keeping with the principles as provided in
President's Executive Order 11246 of September 24, 1966. The COUNTY shall provide
Affinnative Action guidelines to the SPONSOR to assist in the formulation of such program.
Prior to the award of funds, the SPONSOR shall submit for approval, a plan for an Affirmative
Action Program. The Affirmative Action Program will need to be updated throughout the
fifteen year affordability period and must be re -submitted to County within 30 days of each
update/modification.
XVII. CONFLICT OF INTEREST
The SPONSOR covenants that no person under its employ who presently exercises any
functions or responsibilities in connection with the Project, has any personal financial interest,
14
direct or indirect, in the Project areas or any parcels therein, which would conflict in any
manner or degree with the performance of this Agreement and that no person having any
conflict of interest shall be employed by or subcontracted by the SPONSOR. The SPONSOR
covenants that it will comply with all provisions of FL 287.057 "Conflict of Interest", and 2
CFR 200.318, and any additional State and County statutes, regulations, ordinance or
resolutions governing conflicts of interest. Any possible conflict of interest on the part of the
SPONSOR or its employees shall be disclosed, in writing, to CHS provided, however, that this
paragraph shall be interpreted in such a manner so as not to unreasonably impede the statutory
requirement that maximum opportunity be provided for employment of and participation of low
and moderate -income residents of the project target area.
The SPONSOR will notify the COUNTY, in writing, and seek COUNTY approval, prior to
entering into any contract with an entity owned, in whole or in part, by a covered person or an
entity owned or controlled, in whole or in part, by the SPONSOR. The COUNTY may review
the proposed contract to ensure that the contractor is qualified and that the costs are reasonable.
Approval of an identity of interest contract will be in the COUNTY's sole discretion. This
provision is not intended to limit the SPONSOR's ability to self -manage the projects using its
own employees.
XVIII. INCIDENT REPORTING
If services to clients are to be provided under this agreement, the SPONSOR and any
subcontractors shall report knowledge or reasonable suspicion of abuse, neglect, or exploitation
of a child, aged person, or disabled adult to the County.
XIX. RELIGIOUS ORGANIZATIONS
State funds may be used by religious organizations or on property owned by religious
organizations only in accordance with requirements set in Florida Statue, Chapter 196.011.The
SPONSOR shall comply with First Amendment Church/State principles as follows:
A. It will not discriminate against any employee or applicant for employment on the basis
of religion and will not limit employment or give preference in employment to persons
on the basis of religion.
B. It will not discriminate against any person applying for public services on the basis of
religion and will not limit such services or give preference to persons on the basis of
religion.
C. It will retain its independence from Federal, State and Local Governments and may
continue to carry out its mission, including the definition, practice and expression of its
religious beliefs, provided that it does not use direct State funds to support any
inherently religious activities, such as worship, religious instruction or proselytizing.
D. The funds shall not be used for the acquisition, construction or rehabilitation of
structures to the extent that those structures are used for inherently religious activities.
Where a structure is used for both eligible and inherently religious activities, SHIP
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funds may not exceed the cost of those portions of the acquisition, construction or
rehabilitation that are attributable to eligible activities in accordance with the cost
€, accounting requirements applicable to SHIP funds in this part. Sanctuaries, chapels, or
other rooms that a SHIP funded religious congregation uses as its principal place of
worship, however, are ineligible for SHIP funded improvements.
T.Y�- I N V
In the event of a natural disaster, this Agreement may be suspended or terminated and funds
transferred to recovery activities as determined by the COUNTY. Funds subject to this
provision shall be those that are not contractually committed for construction, design or other
such third party private vendors.
XXI. ENFORCEMENT OF AGREEMENT
The benefits of this Agreement shall inure to, and may be enforced by the COUNTY for the
duration of the Agreement, whether or not the COUNTY shall continue to be the holder of the
Mortgage, whether or not the Project loan may be paid in fall, and whether or not any bonds
issued for the purpose of providing funds for the project are outstanding. The SPONSOR
warrants that it has not, and will not, execute any other agreement with provisions contradictory
to, or in opposition to, the provisions hereof, and that, in any event, the requirements of this
Agreement are paramount and controlling as to the rights and obligations herein set forth and
supersede any other requirements in conflict herewith. However, this shall not preclude the
COUNTY from subordinating its loan to construction financing.
XXII. ACQUISITION, RELOCATION, AND DISPLACEMENT:
The SPONSOR acknowledges that the SPONSOR will bear sole responsibility for any costs or
reimbursements, legal or otherwise, from person or persons claiming that they have been
involuntarily displaced by the acquisition of real property associated with development of the
Project.
XXIII. COPYRIGHTS AND PATENTS
If this Agreement results in a book or other copyright materials or patent materials, The
SPONSOR may copyright or patent such, but Collier COUNTY and the State of Florida
reserve a royalty -free, nonexclusive, and irrevocable license to reproduce, publish or otherwise
use such materials and to authorize others to do so.
XXIV. FORCE MATURE
The SPONSOR covenants and agrees that subject to matters of force majeure the work shall be
completed on or before Twelve (12) months from the date of this Agreement. This Agreement
shall be amended between the COUNTY and the SPONSOR when all permits have been issued
to set forth and determine the date of commencement of the work. Matters of force majeure
shall include, but not necessarily be limited to bonafide weather disturbances, strikes, shortages
of material, governmental delays, exclusive of those caused by or as a result of the fault of the
Construction Manager, and those matters over which the Construction Manager has no control.
Force majeure shall not be construed to reduce the obligation of the SPONSOR to timely
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complete the project because of the failure of contractors and subcontractors to timely complete
their work, unless such delay is within the definition of the term force maj cure.
XXV. COUNTERPARTS OF THE AGREEMENT
This Agreement, consisting of thirty (30) enumerated pages and the exhibits and attachments
referenced herein, shall be executed in two counterparts, each of which shall be deemed to be an
original, and such counterparts will constitute one and the same instrument.
IN WITNESS WHEREOF, the SPONSOR and the County, have each, respectively, by an authorized
person or agent, hereunder set their hands and seals on the date first written above.
ATTEST:: ,
DWIGHT E. BROCK, CLERK
ty Clerk
slgi�,atureoiily:
t
Dated: JU,tL4 i%
(SE L)
BOARD OF COUNTY COMMISSIONERS OF
COLLI COUNTY, LORIDA
By:
DO A FIALA, CHAIRMAN
Big Cypress Housing Corporation
j "7
By: _ 4
rgnatm
17
Steve Kirk, President
Date
Approved as to form and legality:
Jenm er A. Belp lii y cam
Assistant County Attorney
EXHIBIT A
INSURANCE REQUIREMENTS
The SPONSOR shall furnish to Collier County, c/o Community and Human Services Division, 3339 E.
Tamiami Trail, Suite 211, Naples, Florida 34112, Certificate(s) of Insurance evidencing insurance
coverage that meets the requirements as outlined below:
Workers' Compensation as required by Chapter 440, Florida Statutes.
2. Commercial General Liability including products and completed operations insurance
in the amount of $1,000,000 per occurrence and $2,000,000 aggregate. Collier County
must be shown as an additional insured, with respect to this coverage.
3. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used
in connection with this contract in an amount not less than $1,000,000 combined single
limit for combined Bodily Injury and Property Damage. Collier County shall be named
as an additional insured.
DESIGN STAGE (IF APPLICABLE)
In addition to the insurance required in 1 — 3 above, a Certificate of Insurance must be provided as
follows:
4. Professional Liability Insurance in the name of the SPONSOR or the licensed design
professional employed by the SPONSOR, in an amount not less than $1,000,000 per
occurrence/$1,000,000 aggregate, providing for all sums which the SPONSOR and/or
the design professional shall become legally obligated to pay as damages for claims
arising out of the services performed by the SPONSOR or any person employed by the
SPONSOR, in connection with this contract. This insurance shall be maintained for a
period of two (2) years after the certificate of Occupancy is issued. Collier County shall
be named as an additional insured.
CONSTRUCTION PHASE (IF APPLICABLE)
In addition to the insurance required in 1 — 4 above, the SUBRECIPEINT shall provide or cause its
Subcontractors to provide original certificates indicating the following types of insurance coverage
prior to any construction:
Completed Value Builder's Risk Insurance on an "All Risk" basis in an amount not less
than one hundred (100%) percent of the insurable value of the building(s) or
structure(s). The policy shall be in the name of Collier County and the SPONSOR.
6. In accordance with the requirements of the Flood Disaster Protection Act of 1973 (42
U.S.C. 4001), the SPONSOR shall assure that for activities located in an area identified
18 GO
by the Federal Emergency Management (FEMA) as having special flood hazards, flood
insurance under the National Flood Insurance Program is obtained and maintained as a
condition of financial assistance for acquisition or construction purposes (including
rehabilitation).
OPERATION/MANAGEMENT PHASE (IF APPLICABLE)
After the Construction Phase is completed and occupancy begins, the following insurance must be kept
in force throughout the duration of the loan and/or contract:
Workers' Compensation as required by Chapter 440, Florida Statutes.
Commercial General Liability including products and completed operations insurance
in the amount of $1,000,000 per occurrence and $2,000,000 aggregate. Collier County
must be shown as an additional insured with respect to this coverage.
9. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used
in connection with this contract in an amount not less than $1,000,000 combined single
limit for combined Bodily Injury and Property Damage. Collier County as an additional
insured.
10. Property Insurance coverage on an "All Risk" basis in an amount not less than one
hundred (100%) of the replacement cost of the property. Collier County must be shown
as a Loss payee with respect to this coverage A.T.I.M.A.
11, Flood Insurance coverage for those properties found to be within a flood hazard zone
for the full replacement values of the structure(s) or the maximum amount of coverage
available through the National Flood Insurance Program (NFIP). The policy must show
Collier County as a Loss Payee A.T.LM.A.
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EXHIBIT B
RENTAL REHABILITION PROJECT REQUIREMENTS
The Project is for the rehabilitation of existing affordable residential rental housing in
accordance with the SHIP Program and the Collier County LHAP FY 2013-2016. The SPONSOR
shall perform the following activity under this agreement:
a) Rehabilitate existing rental property
1) Affordability of SHIP -Assisted Units: For the duration of the Affordability Period (15
years), as defined in the Note and Mortgage/Land Use Restriction Agreement (LURA) of
even date, a minimum of forty (40) units in the Project shall be SHIP -Assisted units.
All SHIP -Assisted units in the Project shall be fixed and rented or held available for rental on a
continuous basis to persons or families who, at the commencement of occupancy shall have a verified
annual income that does not exceed 50% of the Area Median Income (AMI), as defined by the
Department of Housing and Urban Development (HUD). Rents on these units shall be restricted to the
SHIP Program rent limits. Maximum eligible income and rent limits are revised annually and are
available from the COUNTY.
The SPONSOR covenants that a minimum of forty (40) of the units will be rented to income -
eligible tenants as defined by the Department of Housing and Urban Development (HUD). All units
carry rent and occupancy restrictions until June 1, 2031, which remain in force regardless of
transfer of ownership and shall be in accordance with the LURA( incorporated by reference)
and Section V of this agreement. SHIP -Assisted units shall be reserved for and rented to households
which qualify for the following:
SHIP -Assisted Units According to Income Limits
Income Limits Number SHIP -Assisted Units
<50% -Very Low 40
Total of Units (Minimum) 40
*Units divided into income category according to SHIP -Assisted units under affoi
period.
This Agreement incorporates, by reference, terms and conditions described in the Mortgage
and Note of even date and any other agreements enforcing the SHIP requirements associated with said
Mortgage and Note. The budget for the Project is estimated to be ($500,000.00) (FIVE HUNDRED
DOLLARS), is provided by the COUNTY through the SHIP PROGRAM. Project construction will
commence and be completed as defined, and set forth in the affordable housing development schedule
20 ,S
incorporated by reference. In no event will rehabilitation commence later than 120 days from the date
of this agreement nor will rehabilitation be completed later than 24 months from the date of this
agreement. Rehabilitation will progress in accordance with the construction schedule submitted by the
SPONSOR to obtain financing.
2.) Compliance: The SPONSOR shall determine and verify the income eligibility of
tenants in accordance with HUD Section 8 housing assistance programs in 24 CFR Part 5 for the
Project. Income shall be calculated by annualizing verified sources of income for the household as the
amount of income to be received by a household, during the 12 months, following the effective date of
the determination. The Annual Gross Income, as defined in Section 420.9071(4), F.S, must be used
and the SHIP Program income limits cannot be exceeded. The SPONSOR shall maintain complete
and accurate income records pertaining to each tenant occupying a SHIP -assisted unit. Onsite
inspections will be conducted annually upon reasonable prior written notice to verify compliance with
tenant income, rents and the minimum property standards as stated in Section 420.907-420.9079,
Florida Statutes and Rule 67-37, Florida Administrative Code, as they may be amended from time to
time.
3.) Restriction on Use: The SPONSOR is required to comply with all applicable program
requirements of the State Housing Initiatives Partnership (SHIP) Program, including but not limited to
Section 420.907-420.9079, Florida Statutes and Rule 67-37, Florida Administrative Code. Any or all
of these regulations may, but are not required to, be specifically set forth in any additional loan
documents executed in connection with the Loan. The SPONSOR shall include such language as the
County may require in any agreements with prospective tenants of the Project, or any portion, thereof
to evidence such requirements.
4.) Default of Subordinate Mortgage: The Subordinate Mortgage and Note shall provide that a
default shall occur if:
a. Sale; if proceeds are not sufficient to pay off the mortgage note, then the property owner
(not-for-profit or for profit) may contact the County regarding a settlement amount of
the SHIP loan.
b. Title transfer, either voluntarily or by operation of law, divested of title by judicial sale,
levy or other proceedings, including foreclosure or Deed in Lieu.
c. Refinance; a refinance of the first mortgage may be approved without repayment if the
request is submitted in writing and the refinance is at a lower fixed rate, with no cash
out, in accordance with the "Subordination Policy".
d. Property will no longer serve the intended target population.
e. Repayment of the loan is required in full when any of the aforementioned conditions is
met.
Other defaults that may trigger repayment, if not cured within any applicable cure or notice period
following a monitoring:
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f. Lack of compliance by the SPONSOR with the State statutes or County Codes, which
has not been corrected within thirty days of written notice from the County;
4
g. The SPONSOR has not begun to offer not less than (40) affordable rental housing to
extremely — low income families and individuals, in accordance with the provisions of
Part 1 of Exhibit B on or before, (June 30, 2018);
h. The SPONSOR abandons, and/or ceases to use the Property as affordable rental
housing to tenants, without the prior written approval of the County;
Subject to the rights of USDA Rural Development as First Mortgagee, and Florida Housing as Second
Mortgagee, the outstanding Loan balance shall become due and payable upon default of this
Agreement, the Mortgage or the Note, if not cured within any applicable cure or notice period.
5. Assurance of Public Purpose: The SPONSOR covenants that if the SPONSOR is
unable or unwilling to develop the property in accordance with the terms and conditions incorporated
herein, no lease, sale, or title transfer to any third party shall occur prior to giving the COUNTY, a 90
(Ninety) day notification, during which time the COUNTY shall have the right, solely at the
COUNTY'S discretion, to purchase or find another SPONSOR to purchase the Project, in order to
carry out the eligible activities of the SHIP Program, for an amount not to exceed the amount of funds
provided by the COUNTY through the Program.
6. Affirmative Marketing: The SPONSOR shall adopt appropriate procedures for
affirmatively marketing the SHIP -assisted units. Affirmative marketing consists of good faith efforts to
provide information and otherwise to attract to the available housing, eligible persons from all racial,
ethnic and gender groups in the housing market area. The SPONSOR shall be required to use
affirmative fair housing marketing practices in soliciting renters, determining eligibility, concluding
transactions, and affirmatively further fair housing efforts. The SPONSOR must maintain a file
containing all marketing efforts (i.e. copies of newspaper ads, memos of phone calls, copies of letters,
etc.) to be available for inspection on request by the COUNTY. The SPONSOR must provide a
description of intended actions that will inform and otherwise attract eligible persons from all racial,
ethnic, and gender groups in the housing market of the available housing. The SPONSOR must
provide the COUNTY with an assessment of the affirmative marketing program. Assessment must
include: a) methods used to inform the public and potential renters about federal fair housing laws and
affirmative marketing policy, b) methods used to inform and solicit applications from persons in the
housing market who are not likely to apply without special outreach; and c) records describing actions
taken by the participating entity and/or owner to affirmatively market units; and records to assess the
results of these actions.
7. Tenant Leases and Protections: Tenants applying for rental housing units shall be
qualified on a first -qualified, first-served basis. Tenants must be income -eligible and must occupy the
rental unit as a primary residence. The SPONSOR shall comply with the provisions of the Florida
Landlord Tenant Act defined in Chapter 83 Part II of the Florida Statutes, SHIP Program, and
COUNTY requirements, which prohibit certain lease terms. All tenant leases for assisted units shall be
expressly subordinate to the Mortgage and shall contain clauses, among others, wherein each
individual lessee:
A. Agrees that the household income, household composition and other eligibility
requirements shall be deemed substantial and material obligations of the tenancy; that
22 T
the tenant will comply promptly with all requests for information with respect thereto
from the SPONSOR or the COUNTY, and that tenant's failure to provide accurate
information about household income or refusal to comply with a request for information
with respect thereto shall be deemed a violation of a substantial obligation of his/her
tenancy; and
B. Agrees not to sublease to any person or family who does not meet income qualifications
as determined, verified, and certified by the SPONSOR; and
C. States that the rental unit is the primary residence of the tenant; and
D. Agrees that the lease shall be for a one-year period, unless other terms are mutually
agreed upon by the SPONSOR and tenant.
The SPONSOR will submit to the County, a copy of the tenant/owner lease agreement. Prior to
signing by the tenant, the lease will be reviewed for compliance with affirmative marketing, tenant
selection and SHIP provisions stated in Section 420.907-420.9079, Florida Statues and Rule 67-37,
Florida Administrative Code.
8. Project Requirements: The SPONSOR agrees to not undertake any activity that may
adversely affect historic or environmental sensitivity of the site and to mitigate any findings identified
in an environmental assessment. The SPONSOR agrees that in the event that the Project is located in a
Designated Flood Zone, all government requirements for construction in a flood zone shall be satisfied.
The SPONSOR shall develop and submit to CHS, within 30 days of contract execution, a rehabilitation
schedule to include the following:
Project rehabilitation will commence and be completed in accordance with the schedule submitted and
in no event will rehabilitation commence later than 120 days from the date of this Agreement nor will
the project be completed later than 24 months from the execution date of this agreement.
Further, "project completion date" will mean issuance of all certificates of occupancy and completion
of initial lease -up.
TENTATIVE SCHEDULE (Not a Condition of Disbursement)
Initial Plans and Permitting Approvals
August 30, 2016
Bid Solicitation
October 1, 2016- Initial subcontractor bids
(BCHC projects multiple bids to be awarded due
completed.
to types of rehabilitation work to be performed)
Exterior/Interior Work Commenced
September 30, 2016
Construction Completed
No later than June 30, 2018
9. Property Standards: The SPONSOR attests that the Project will meet the standards of
the Florida Building Code and all applicable local codes, standards, ordinances, and zoning ordinances
at the time of project completion and throughout the duration of the affordability period. The Project
will also meet the accessibility requirements at 24 CFR part 8, which implements Section 504 of the
23
Rehabilitation Act of 1973 (29 U.S.C. 794) and covered multifamily dwellings, as defined at 24 CFR
100.201, and the design and construction requirements at 24 CFR 100.205, which implement the Fair
f Housing Act (42 U.S.C. 3601-3619).
In accordance with the Local Housing Assistance Plan, a sponsor shall follow each SHIP Program
strategy program requirements below:
Energy Efficient Best Practices: Section 420.9075(3)(d), F.S. defines Energy Efficient Best Practices
as: Innovative design, green building principles, storm resistant construction or other elements that
reduce long term costs relating to maintenance, utilities or insurance.
Collier County requires the use or inclusion, when appropriate, of the following: energy star
appliances; low -E windows; additional insulation (for increased R -value); ceramic tile; tank -less water
heater; 14 and 15 SEER air conditioning units; stucco; florescent light bulbs; and impact resistant
windows and doors.
10. Property Management: The COUNTY reserves the right to require the SPONSOR to enter
into a contract with a property management firm approved by the COUNTY, for professional
management services for the Property providing for leasing, collection of rents, maintenance and repair
of Property, and other property management tasks as the COUNTY may require. Such contract shall
stipulate that the contract will not be amended or terminated without prior written consent of the
COUNTY.
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EXHIBIT C
Budget Narrative
Rental Rehabilitation
The total SHIP allocation to the SPONSOR for the Rental Rehabilitation, Program shall not exceed
ONE MILLION DOLLARS ($500,000.00).
Sources for these funds are as follows:
Fiscal Year Rental Reltab
Total
2014-2015 $500,000.00
$500,000.00
Tothl_Fiinds $500,000.00
$500,000.00
Uses of these funds are as follows:
Funds shall be disbursed in the following manner for the following uses:
1. Rehabilitation expenditure per dwelling unit: The expenditure per dwelling unit may not
exceed $ 30, 000
2. Rehabilitation expenditure per property shall not exceed $500,000.
3. The initial disbursement will be issued following execution of agreement.
4. Sponsor shall provide proof of expenditures to equal the initial loan disbursement prior to
receiving the second loan disbursement.
25
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EXHIBIT D
REPORTS
Renort Title Documentation Required Due Date
Quarterly Report
Progress report detailing
10 days after the end of the
accomplishments
calendar quarter
Invoice for Loan Disbursement
Exhibit E and all necessary
30 days after the end of the
Reconciliation
supporting documentation
preceding month
Loan Disbursement Request
Exhibit E, Promissory Note and
2x during grant period( initial
Mortgage (initial request)
request 30 days following grant
execution)
Insurance
Proof of coverage in accordance
Annually within 30 days after
with Exhibit A/Declaration page
renewal
SPONSOR Audit
Audit report, Management
Within 9 months after the end of
Letter and Exhibit G
the SPONSOR fiscal year
through 2031
Quarterly Operating Statement
Revenue and Expense and all
10 days after the end of the
necessary supporting
calendar quarter
documentation as requested
Tenant/Lease Agreement
Lease
Submit prior to signing by first
tenant and any addendums or
changes thereafter through the
period of affordability
Special Grant Policies
See Section III (B)
Within 60 days of contract
execution
Project Schedule
See Section III (A)
Within 30 days of contract
execution
26
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EXHIBIT "E"
COLLIER COUNTY COMMUNITY AND HUMAN SERVICES
REQUEST FOR LOAN DISBURSEMENT
SECTION I: REQUEST FOR DISBURSEMENT
Sponsor Name: Big Cypress Housing Corporation
Sponsor Address: 19308 SW 380`h Street, Florida City, FL 33034
Project Name: Main Street Village
Project No:
Total Disbursement :
Disbursement Request #
Period of Availability:
The Agency has incurred the indebtedness listed below between
SECTION II: STATUS OF FUNDS
Grant Amount Awarded
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
and
$0.00
$0.00
$0.00
6. Current Grant Balance (Initial Grant Amount Awarded Less Sum of all
requests) $0.00
I certify that this request for disbursement has been made in accordance with the terms and
conditions of the Agreement between the COUNTY and us as the SPONSOR. To the best of my
knowledge and belief, all grant requirements have been followed.
Signature
Authorizing Grant Coordinator
Supervisor
(approval required $15,000 and above)
Date
Authorizing Grant
Accountant
Department Director
(approval required $15,000 and above)
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EXHIBIT "F"
QUARTERLY PROGRESS REPORT
Complete form for preceding quarter and submit to Community and Human Services staff by the 10th of the
following quarterly month.
Status Report for the Quarter Ending: Submittal Date:
Project Name: Project Number:
SPONSOR: Big Cypress Housing Corporation
Contact Person:
Telephone: Fax: E-mail:
PROPERTY UNIT DATA
Number of units under rehab this period
Number of units completed this period
Number of units completed to date
EXPENDITURE DATA
Amount of funds expended this period
Amount of funds expended to date
New Contracts executed this period
Name of Contractor
Address Amount of Contract
Income Date
Client Income Category Income Amount
What events/actions are scheduled for the next month?
Signature
Date
EXHIBIT "G"
ANNUAL AUDIT MONITORING REPORT
Circular:2 CFR 200.500requires Collier'County to monitor SPONSOR of fetleraI awards to determine if SPONSOR are
compliant with established audit requirements. Accordingly,; Collier County requires that all. appropriate documentation'.
is provided regarding your organizations; compliance.
In determining Federal awards expended in a fiscal year, the entity must consider all sources of Federal awards based t
on whenthe activity, related to the Federal award occurs, including any; Federal award provided by Collier County."Thed
determination of amounts of Federal awards expended shall be in accordance' with the guidelines established by OMB
Circular A-133, for fiscal years beginnino before December 26 2014i and established by 2'CFR Part 200, Subpart F
Audit Requirements for fiscal years beginning on or after ''December -26. 2014. This form may be used to monitor'
Florida -Sin le Audit Act Statute 215.97 requirements.:
SPONSOR"
Name r
First Date of Fiscal Year (MM/DDNY) Last Date of Fiscal Year MM/DDIYY
Total :FeIder al Financial Assistance Expended Total State Financial Assistance Expended during "most
during most recently completed Fiscal Year recently completed Fiscal Year
$ $
Check A or B. Check C if applicable.
The federal/state expenditure threshold for our fiscal year ending as indicated above has been metand a
❑ Circular A-133 or 2 CFR Part 200, Subpart F Single Audit has been completed or will be, completed by
Copies of the audit report and management letter are attached or will be provided within 30:
days of completion.
We are hot subject to the requirements of OMB Circular A-133 or 2 CFR Part 200„
Subpart F because we:
❑ Ll Did not exceed the expenditure threshold for the fiscal year indicated above
❑ Are a for-profit organization'
❑ Are exempt for other reasons explain
An audited financial statement is attached and if applicable, the independent auditor's management letter.
Findings were noted, a current Status Update of the responses and corrective action plan is included separate.
from the written response provided within the audit report. While we understand that the audit report contains a
❑ written response to the finding(s), we are requesting an updated status of the corrective action(s) being taken:'
Please do not provide just a copy of the written response from your audit report, unless it includes details of
the actions, procedures, policies; etc. implemented and when it was or will be implemented.
Certification Statement
I hereby certify that the above information is true and accurate.
Signature Date
Print Name and Title
29 T (7
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EXHIBIT "H"
COLLIER COUNTY
CONSTRUCTION REHAB PROGRAM MANUAL OF PRACTICE
SELECTIVE REHAB PROCEDURES as may be amended from time to time.
REFERENCE DATE: NNE 24, 2014
ITEM # 16D.1
PAGE LEFT BLANK INTENTIONALLY
MIADOCS 14589916 2
THIS INSTRUMENT PREPARED
BY AND RETURN TO:
Nabors Giblin & Nickerson, P.A.
Junious D. Brown III, Esquire
1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
ABOVE SPACE RESERVED FOR
RECORDING PURPOSES ONLY
SUBORDINATION AGREEMENT
([Project Name] / [Program])
THIS SUBORDINATION AGREEMENT (this "Agreement") is made and entered
into as of _________ ___, 201_, by and among (i) FLORIDA HOUSING FINANCE
CORPORATION, a public corporation and a public body corporate and politic duly created and
existing under the laws of the State of Florida (together with its successors and assigns, the
"Senior Lender"), (ii) ____________, a ________________ (the "Subordinate Lender")
(which term as used in every instance shall include Subordinate Lender’s successors and
assigns), and (iii) __________________, a _______________________ ("Borrower").
RECITALS
A. Senior Lender has made a loan to Borrower under the _________ Loan Program
governed by the rules of Florida Housing Finance Corporation, as codified at Chapter
___________, Fla. Admin. Code, in effect as of __________ (collectively, the “Rule”), in the
original principal amount of $______________ (the "Senior Loan"). The _______ Loan has
been secured by a Mortgage and Security Agreement (the "Senior Security Instrument") on a
multifamily rental housing development located on certain real property in _____ County,
Florida, and known as _______________ (the "Property"). The Property is more fully
described in Exhibit “A” attached hereto. The Borrower's obligation to repay the ____ Loan is
evidenced by a Promissory Note, dated as of _______ __, 20__ (the "Senior Note"), and is due
in full on ____________, 20__.
B. The Borrower has requested that Senior Lender permit the Subordinate Lender to
make a subordinate loan to Borrower in the original principal amount of $_____ (the
"Subordinate Loan") and secure the Subordinate Loan by permitting a mortgage lien to be
placed on the Property.
MIADOCS 14589916 2 2
C. The Senior Lender has agreed to permit the Subordinate Lender to make the
Subordinate Loan and to place a subordinate mortgage lien on the Property subject to all of the
conditions contained in this Agreement.
NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate
Lender to make the Subordinate Loan to the Borrower and to place a subordinate mortgage lien
against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and
the Borrower agree as follows:
1. Definitions.
In addition to the terms defined in the Recitals to this Agreement, for purposes of this
Agreement the following terms have the respective meanings set forth below:
"Affiliate" means, when used with respect to a Person, any corporation, partnership, joint
venture, limited liability company, limited liability partnership, trust or individual controlled by,
under common control with, or which controls such Person (the term "control" for these
purposes shall mean the ability, whether by the ownership of shares or other equity interests, by
contract or otherwise, to elect a majority of the directors of a corporation, to make management
decisions on behalf of, or independently to select the managing partner of, a p artnership, or
otherwise to have the power independently to remove and then select a majority of those
individuals exercising managerial authority over an entity, and control shall be conclusively
presumed in the case of the ownership of 50% or more of the equity interests).
"Borrower" means the Person named as such in the first paragraph of this Agreement
and any other Person (other than the Senior Lender) who acquires title to the Property after the
date of this Agreement.
"Business Day" means any day other than Saturday, Sunday or a day on which the Senior
Lender is not open for business.
"Default Notice" means: (a) a copy of the written notice from the Senior Lender to the
Borrower stating that a Senior Loan Default has occurred under the Senior Loan; or (b) a copy of
the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan
Default has occurred under the Subordinate Loan. Each Default Notice shall specify the default
upon which such Default Notice is based.
"Person" means an individual, estate, trust, partnership, corporation, limited liability
company, limited liability partnership, governmental department or agency or any other entity
which has the legal capacity to own property.
"Senior Lender" means the Person named as such in the first paragraph on page 1 of this
Agreement and any other Person who becomes the legal holder of the Senior Note after the date
of this Agreement.
MIADOCS 14589916 2 3
"Senior Loan Default" means the occurrence of an "Event of Default" as that term is
defined in the Senior Loan Documents.
"Senior Loan Documents" means the Senior Note, the Senior Security Instrument and
all other documents evidencing, securing or otherwise executed and delivered in connection with
the Senior Loan.
"Subordinate Lender" means the Person named as such in the first paragraph on page 1
of this Agreement and any other Person who becomes the legal holder of the Subordinate Note
after the date of this Agreement.
"Subordinate Loan Default" means a default by the Borrower in performing or
observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be
performed or observed by it, which continues beyond any applicable period provided in the
Subordinate Loan Documents for curing the default.
"Subordinate Loan Documents" means the Subordinate Note, the Subordinate Security
Instrument, Subordinate Regulatory Agreement, and all other documents evidencing, securing or
otherwise executed and delivered in connection with the Subordinate Loan.
"Subordinate Note" means the Mortgage Note in the original principal amount of
$__________ made by the Borrower to the Subordinate Lender, or order, to evidence the
Subordinate Loan.
“Subordinate Regulatory Agreement” means the Land Use Restriction Agreement
dated as of the date hereof to be recorded in the Public Records of ________ County, Florida,
prior to the recording of this Agreement, as may be amended from time to time, encumbering the
Property in connection with the Subordinate Loan.
"Subordinate Security Instrument" means the Real Estate Mortgage Security
Agreement dated as of the date hereof to be recorded in the Public Records of ______County,
Florida, as amended from time to time, encumbering the Property as security for the Subordinate
Loan.
2. Permission to Place a Mortgage Lien Against Property.
The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the
Property contained in the Senior Loan Documents and subject to the provisions of this
Agreement, to permit the Subordinate Lender to record the Subordinate Security Instrument and
other recordable Subordinate Loan Documents against the Property (which are subordinate in all
respects to the lien of the Senior Security Instrument, other than as set forth herein) to secure the
Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and
liabilities of the Borrower to the Subordinate Lender under and in connection with the
Subordinate Loan. Such permission is subject to the condition that each of the representations
and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct
on the date of this Agreement and on each date on which the proceeds of the Subordinate Loan
are disbursed to the Borrower. If any of the representations and warranties made by the
MIADOCS 14589916 2 4
Borrower and the Subordinate Lender in Section 3 are not true and correct on those dates, the
provisions of the Senior Loan Documents applicable to unpermitted liens on the Property shall
apply.
3. Borrower and Subordinate Lender Representations and Warranties.
The Borrower and the Subordinate Lender each make the following representations and
warranties to the Senior Lender:
(a) The Borrower makes the following representations and warranties to the Senior
Lender:
(1) Subordinate Note. The Subordinate Note contains the following
provision:
"The indebtedness evidenced by this Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by a (i) Promissory
Note dated ________________, 20__ in the original principal amount of $___________,
(ii) Promissory Note dated ___________________, 20__ in the original principal amount
of $_________, and (iii) Promissory Note dated ____________, 20__ in the original
principal amount of $________ (collectively, the "Senior Note") issued (or assumed) by
_______________, a __________ ("Borrower") and payable to _______________, its
successors and assigns (the "Senior Lender"), as their respective interests may appear, or
order, to the extent and in the manner provided in that certain Subordination Agreement,
dated as of ____________________, 20__ (the "Subordination Agreement"), among the
Senior Lender, Borrower and _____________, a ____________ (the "Subordinate
Lender"). The [Mortgage] securing this Note is and shall be subject and subordinate in
all respects to the liens, terms, covenants and conditions of the Mortgage and Security
Agreement, securing the Senior Note, as more fully set forth in the Subordination
Agreement. The rights and remedies of Subordinate Lender and each subsequent holder
of this Note under the Real Estate Mortgage Security Agreement securing this Note are
subject to the restrictions and limitations set forth in the Subordination Agreement. Each
subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of
the Note, to have agreed to perform and observe all of the terms, covenants and
conditions to be performed or observed by the Subordinate Lender under the
Subordination Agreement."
(2) Relationship of Borrower to Subordinate Lender and Senior Lender.
The Subordinate Lender is an Affiliate of the Borrower. The Borrower is not in
possession of any facts which would lead it to believe that the Senior Lender is an
Affiliate of the Borrower.
(3) Subordinate Loan Term. The term of the Subordinate Note does not end
before the term of the Senior Note.
MIADOCS 14589916 2 5
(3) Subordinate Loan Documents. The executed Subordinate Loan
Documents are substantially in the same forms as those submitted to and, if required,
approved by Senior Lender prior to the date of this Agreement. Upon execution and
delivery of the Subordinate Loan Documents, Borrower shall deliver to Senior Lender, if
requested by Senior Lender, an executed copy of each of the Subordinate Loan
Documents, certified to be true, correct and complete.
(b) The Subordinate Lender makes the following representations and warranties to
the Senior Lender:
(1) Subordinate Note. The Subordinate Note contains the following
provision:
"The indebtedness evidenced by this Note is and shall be subordinate in right of
payment to the prior payment in full of the indebtedness evidenced by a (i) Promissory
Note dated _____________, 20__ in the original principal amount of $_________, (ii)
Promissory Note dated ______________, 20__ in the original principal amount of
$________, and (iii) Promissory Note dated _______________, 20__ in the original
principal amount of $__________ (collectively, the "Senior Note") issued (or assumed)
by _______________, a ___________ ("Borrower") and payable to
___________________, its successors and assigns (the "Senior Lender"), as their
respective interests may appear, or order, to the extent and in the manner provided in that
certain Subordination Agreement, dated as of ___________, 20__ (the "Subordination
Agreement"), among the Senior Lender, Borrower and ______________, a
_____________ (the "Subordinate Lender"). The Real Estate Mortgage Security
Agreement securing this Note is and shall be subject and subordinate in all respects to the
liens, terms, covenants and conditions of the Mortgage and Security Agreement, securing
the Senior Note, as more fully set forth in the Subordination Agreement. The rights and
remedies of Subordinate Lender and each subsequent holder of this Note under the Real
Estate Mortgage Security Agreement securing this Note are subject to the restrictions and
limitations set forth in the Subordination Agreement. Each subsequent holder of this
Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed
to perform and observe all of the terms, covenants and conditions to be performed or
observed by the Subordinate Lender under the Subordination Agreement."
(2) Subordinate Loan Term. The term of the Subordinate Note does not end
before the term of the Senior Note.
(3) Subordinate Loan Documents. The executed Subordinate Loan
Documents are substantially in the same forms as those submitted to, and approved by,
Senior Lender prior to the date of this Agreement.
4. Terms of Subordination.
(a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender
agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall b e
MIADOCS 14589916 2 6
subordinated in right of payment, to the extent and in the manner provided in this Agreement to
the prior payment in full of the indebtedness evidenced by the Senior Loan Documents, and (ii)
the Subordinate Security Instrument and the other Subordinate Loan Documents are and shall be
subject and subordinate in all respects to the liens, terms, covenants and conditions of the Senior
Security Instrument and the other Senior Loan Documents and to all advances heretofore made
or which may hereafter be made pursuant to the Senior Security Instrument and the other Senior
Loan Documents (including but not limited to, all sums advanced for the purposes of (1)
protecting or further securing the lien of the Senior Security Instrument, curing defaults by the
Borrower under the Senior Loan Documents or for any other purpose expressly permitted by the
Senior Security Instrument, or (2) constructing, renovating, repairing, furnishing, fixturing or
equipping the Property).
(b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if,
by reason of the advance payment by Subordinate Lender of real estate taxes, casualty insurance
premiums or other monetary obligations of the Borrower to protect the Property, the Subordinate
Lender, by reason of its exercise of any other right or remedy under the Subordinate Loan
Documents, acquires by right of subrogation or otherwise a lien on the Property which would
(but for this subsection) be senior to the lien of the Senior Security Instrument, then, in that
event, such lien shall be subject and subordinate to the lien of the Senior Security Instrument,
only to the extent of the amount advanced, provided that Subordinate Lender gives Senior
Lender prior written notice of its intent to advance sums for real property taxes and/or casualty
insurance.
(c) Payments Before Senior Loan Default. Until the Subordinate Lender receives a
Default Notice of a Senior Loan Default from the Senior Lender, the Subordinate Lender shall be
entitled to retain for its own account all payments made under or pursuant to the Subordinate
Loan Documents.
(d) Payments After Senior Loan Default. The Borrower agrees that, after it
receives notice (or otherwise acquires knowledge) of a Senior Loan Default, it will not make any
payments under or pursuant to the Subordinate Loan Documents (including but not limited to
principal, interest, additional interest, late payment charges, default interest, attorney's fees, or
any other sums secured by the Subordinate Security Instrument) without the Senior Lender's
prior written consent excluding, however, such sums which were due and owing and received by
the Subordinate Lender prior to receipt of said notice or the time it otherwise acquires knowledge
of the Senior Loan Default. The Subordinate Lender agrees that, after it receives a Default
Notice from the Senior Lender with written instructions directing the Subordinate Lender not to
accept payments from the Borrower on account of the Subordinate Loans, it will not accept any
payments under or pursuant to the Subordinate Loan Documents (including but not limited to
principal, interest, additional interest, late payment charges, default interest, attorney's fees, or
any other sums secured by the Subordinate Security Instrument) without the Senior Lend er's
prior written consent. If the Subordinate Lender receives written notice from the Senior Lender
that the Senior Loan Default which gave rise to the Subordinate Lender's obligation not to accept
payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions
on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender
shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower
MIADOCS 14589916 2 7
prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in
accordance with the provisions of this Section 4(d).
(e) Remitting Subordinate Loan Payments to Senior Lender. If, after the
Subordinate Lender receives a Default Notice from the Senior Lender in accordance with
subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan
Documents, the Subordinate Lender agrees that such payment or other distribution will be
received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies
the Subordinate Lender in writing, will be promptly remitted in kind to the Senior Lender,
properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other
amounts due under the Senior Loan Documents in accordance with the provisions of the Senior
Loan Documents. By executing this Agreement, the Borrower specifically authorizes the
Subordinate Lender to endorse and remit any such payments to the Senior Lender, and
specifically waives any and all rights to have such payments returned to the Borrower or credited
against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that
payments received by the Subordinate Lender, and remitted to the Senior Lender under this
Section 4, shall not be applied or otherwise credited against the Subordinate Loan s, nor shall the
tender of such payment to the Senior Lender waive any Subordinate Loan Default which may
arise from the inability of the Subordinate Lender to retain such payment or apply such payment
to the Subordinate Loan.
(f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate
Lender agrees that during the term of this Agreement, it will not commence, or join with any
other creditor in commencing, any bankruptcy reorganization, arrangement, insolvency or
liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written
consent.
5. Default Under Subordinate Loan Documents.
(a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the
Senior Lender a Default Notice within five (5) Business Days in each case where the
Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate
Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the
Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the
provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to
cure any Subordinate Loan Default within 60 days following the date of such notice provided,
however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to
pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the
Senior Lender in accordance with the Senior Loan Documents to cure a Subordinate Loan
Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be
secured by the lien of, the Senior Security Instrument.
(b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If
a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that,
without the Senior Lender's prior written consent, it will not commence foreclosure proceedings
with respect to the Property under the Subordinate Loan Documents or exercise any other rights
MIADOCS 14589916 2 8
or remedies it may have under the Subordinate Loan Documents, including but not limited to
accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a
receiver or exercising any other rights or remedies thereunder unless and until it has given the
Senior Lender at least 60 days' prior written notice.
(c) Cross Default. The Borrower and the Subordinate Lender agree that a
Subordinate Loan Default shall constitute a Senior Loan Default under the Senior Loan
Documents and the Senior Lender shall have the right to exercise all rights or remedies under the
Senior Loan Documents in the same manner as in the case of any other Senior Loan Default. If
the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default
of which the Senior Lender has received a Default Notice has been cured or waived, as
determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has
not conducted a sale of the Property pursuant to its rights under the Senior Loan Documents, any
Senior Loan Default under the Senior Loan Documents arising solely from such Subordinate
Loan Default shall be deemed cured, and the Senior Loan shall be reinstated, provided, however,
that the Senior Lender shall not be required to return or otherwise credit for the benefit of the
Borrower any default rate interest or other default related charges or paym ents received by the
Senior Lender during such Senior Loan Default.
6. Default Under Senior Loan Documents.
(a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the
Subordinate Lender a Default Notice within five (5) Business Days in each case where the
Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send
a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's
rights and remedies under the Senior Loan Documents, subject to the provisions of this
Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such
Senior Loan Default within 60 days following the date of such notice; provided, however, that
the Senior Lender shall be entitled during such 60-day period to continue to pursue its remedies
under the Senior Loan Documents. Subordinate Lender may have up to 90 days from the date of
the Default Notice to cure a non-monetary default if during such 90-day period Subordinate
Lender keeps current all payments required by the Senior Loan Documents. In the event that
such a non-monetary default creates an unacceptable level of risk relative to the Property, or
Senior Lender’s secured position relative to the Property, as determined by Senior Lender in its
sole discretion, then Senior Lender may exercise during such 90-day period all available rights
and remedies to protect and preserve the Property and the rents, revenues and other proceeds
from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a
Senior Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant
to, and shall be secured by the lien of, the applicable Subordinate Security Instrument.
(b) Cross Default. The Subordinate Lender agrees that, notwithstanding any
contrary provision contained in the Subordinate Loan Documents, a Senior Loan Default shall
not constitute a default under the Subordinate Loan Documents if no other default occurred
under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the
maturity of the Senior Loan, or (ii) the Senior Lender has taken affirmative action to exercise its
rights under the Senior Security Instrument to collect rent, to appoint (or seek the appointment
MIADOCS 14589916 2 9
of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Senior Security
Instrument. At any time after a Senior Loan Default is determined to constitute a default under
the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its
remedies for default under the Subordinate Loan Documents, subject to the restrictions and
limitations of this Agreement. If at any time the Borrower cures any Senior Loan Default to the
satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the
Subordinate Lender, any default under the Subordinate Loan Documents arising from such
Senior Loan Default shall be deemed cured and the applicable Subordinate Loan shall be
retroactively reinstated as if such Senior Loan Default had never occurred.
7. Conflict.
The Borrower, the Senior Lender and the Subordinate Lender each agree that, in the
event of any conflict or inconsistency between the terms of the Senior Loan Documents, the
Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall
govern and control solely as to the following: (a) the relative priority of the security interests of
the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of
remedies by the Senior Lender and the Subordinate Lender under the Senior Security Instrument
and the Subordinate Security Instrument, respectively; and (c) solely as between the Senior
Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and
obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly
provided in this Agreement. Borrower acknowledges that the terms and provisions of this
Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Senior
Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to
notice of any Senior Loan Default or Subordinate Loan Default, as the case may be other than
that, if any, provided, respectively under the Senior Loan Documents or the Subordinate Loan
Documents; or create any other right or benefit for Borrower as against Senior Lender or
Subordinate Lender.
8. Rights and Obligations of the Subordinate Lender under the Subordinate
Loan Documents and of the Senior Lender under the Senior Loan Documents.
Subject to each of the other terms of this Agreement, all of the following provisions shall
supersede any provisions of the Subordinate Loan Documents covering the same subject matter:
(a) Protection of Security Interest. The Subordinate Lender shall not, without the
prior written consent of the Senior Lender in each instance, take any action which has the effect
of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan
Documents, except that the Subordinate Lender shall have the right, after ten (10) business days’
notice to Senior Lender, to advance funds to cure Senior Loan Defaults pursuant to Section 6(a)
above and advance funds pursuant to the Subordinate Security Instrument for the purpose of
paying real estate taxes and insurance premiums, making necessary repairs to the Property and
curing other defaults by the Borrower under the Subordinate Loan Documents.
(b) Condemnation or Casualty. In the event of a taking or threatened taking by
condemnation or other exercise of eminent domain of all or a portion of the Property
MIADOCS 14589916 2 10
(collectively, a "Taking"), or the occurrence of a fire or other casualty resulting in damage to all
or a portion of the Property (collectively, a "Casualty"), at any time or times when the Senior
Security Instrument remains a lien on the Property, the following provisions shall apply:
(1) The Subordinate Lender hereby agrees that its rights (under the
Subordinate Loan Documents or otherwise) to participate in any proceeding or action
relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to
adjust, any claims resulting from a Taking or a Casualty sh all be and remain subordinate
in all respects to the Senior Lender's rights under the Senior Loan Documents with
respect thereto, and the Subordinate Lender shall be bound by any settlement or
adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender;
provided, however, this subsection and/or anything contained in this Agreement shall not
limit the rights of the Subordinate Lender to file any pleadings, documents, claims or
notices with the appropriate court with jurisdiction over the proposed Taking and/or
Casualty; and
(2) All proceeds received or to be received on account of a Taking or a
Casualty, or both, shall be applied (either to payment of the costs and expenses of repair
and restoration or to payment of the Senior Loan) in the manner set forth in the Senior
Security Instrument; provided, however, that if the Senior Lender elects to apply such
proceeds to payment of the principal of, interest on and other amounts payable under the
Senior Loan, any proceeds remaining after the satisfaction in full of the principal of,
interest on and other amounts payable under the Senior Loan shall be paid to, and may be
applied by, the Subordinate Lender in accordance with the applicable provisions of the
Subordinate Loan Documents, provided however, the Senior Lender agrees to consult
with the Subordinate Lender in determining the application of Casualty proceeds,
provided further however that in the event of any disagreement between the Senior
Lender and the Subordinate Lender over the application of Casualty proceeds, the
decision of the Senior Lender, in its sole discretion, shall prevail.
(c) No Modification of Subordinate Loan Documents. The Borrower and the
Subordinate Lender each agree that, until the principal of, interest on and all other amounts
payable under the Senior Loan Documents have been paid in full, it will not, without the prior
written consent of the Senior Lender in each instance, increase the amount of the Subordinate
Loan, increase the required payments due under the Subordinate Loan, decrease the term s of the
Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the
terms of the Subordinate Loan in a manner that creates an adverse effect upon the Senior Lender
under the Senior Loan Documents. Any unauthorized amendment of the Subordinate Loan
Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without
the Senior Lender's consent shall be void ab initio and of no effect whatsoever.
9. Modification or Refinancing of Senior Loan.
In an Event of Default or threatened, imminent default, under the Senior Loan
Documents, the Subordinate Lender consents to any agreement or arrangement in which the
Senior Lender waives, postpones, extends, reduces or modifies any provisions of the Senior Loan
Documents, including any provision requiring the payment of money, without the prior approval
MIADOCS 14589916 2 11
of Subordinate Lender. Subordinate Lender further agrees that its agreement to subordinate
hereunder shall not extend to any new mortgage debt which is for the purpose of refinancing all
or any part of the Senior Loan (including reasonable and necessary costs associated with the
closing and/or the refinancing) that has not been previously approved by Subordinate Lender;
and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of
any such refinanced debt; and that all references to the Senior Loan, the Senior Note, the Senior
Security Instrument, the Senior Loan Documents and Senior Lender shall mean, respectively, the
refinance loan, the refinance note, the mortgage securing the refinance note, all documents
evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance
note.
10. Default by the Subordinate Lender or Senior Lender.
If the Subordinate Lender or Senior Lender defaults in performing or observing any of
the terms, covenants or conditions to be performed or observed by it under this Agreement, the
other, non-defaulting lender shall have the right to all available legal and equitable relief.
11. Notices.
Each notice, request, demand, consent, approval or other communication (hereinafter in
this Section referred to collectively as "notices" and referred to singly as a "notice") which the
Senior Lender or the Subordinate Lender is required or permitted to give to the other party
pursuant to this Agreement shall be in writing and shall be deemed to have been duly and
sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so
delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal
Express (or other similar national overnight courier) designating early morning delivery (any
notice so delivered shall be deemed to have been received on the next Business Day fo llowing
receipt by the courier); or (c) sent by United States registered or certified mail, return receipt
requested, postage prepaid, at a post office regularly maintained by the United States Postal
Service (any notice so sent shall be deemed to have been received two (2) days after mailing in
the United States), addressed to the respective parties as follows:
Senior Lender: Florida Housing Finance Corporation
227 North Bronough Street, Suite 5000
Tallahassee, Florida 32301-1329
Attention: Executive Director
Phone: (850) 488-4197
Fax: (850) 488-9809
with a copy to: Nabors, Giblin & Nickerson, P.A.
1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
Attention: Junious D. Brown III, Esq.
Telephone: (850) 224-4070
Email: jbrown@ngn-tally.com
Subordinate
Lender: ______________
______________
MIADOCS 14589916 2 12
______________
Attention:
Phone:
Email:
with a copy to: _______________
_______________
_______________
Attention:
Phone:
Email:
Borrower: _______________
_______________
_______________
Attention:
Phone:
Email:
with a copy to: ________________
________________
________________
Attention:
Phone:
Email:
Any party may, by notice given pursuant to this Section, change the person or persons and/or
address or addresses, or designate an additional person or persons or an additional address or
addresses for its notices, but notice of a change of address shall only be effective upon receipt.
12. General.
(a) Assignment/Successors. This Agreement shall be binding upon the Borrower,
the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective
legal successors and assigns of the Senior Lender and the Subordinate Lender.
(b) No Partnership or Joint Venture. The Senior Lender's permission for the
placement of the Subordinate Loan Documents does not constitute the Senior Lender as a joint
venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a
partner, agent or Affiliate of the other party hereto.
(c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior
Lender's consent or approval is required by any provision of this Agreement, such consent or
approval may be granted or denied by the Senior Lender in its sole and absolute discretion,
unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's
consent or approval is required by any provision of this Agreement, such consent or approval
MIADOCS 14589916 2 13
may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless
otherwise expressly provided in this Agreement.
(d) Further Assurances. The Subordinate Lender, the Senior Lender and the
Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments
and/or documents reasonably required by any other party to this Agreement in order to evidence
that the Subordinate Security Instrument is subordinate to the lien, covenants and conditions of
the Senior Security Instrument, or to further evidence the intent of this Agreement.
(e) Amendment. This Agreement shall not be amended except by written instrument
signed by all parties hereto.
(f) Governing Law. This Agreement shall be governed by the laws of the State in
which the Property is located.
(g) Severable Provisions. If any provision of this Agreement shall be invalid or
unenforceable to any extent, then the other provisions of this Agreement shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
(h) Term. The term of this Agreement shall commence on the date hereof and shall
continue until the earliest to occur of the following events: (i) the payment of all of the principal
of, interest on and other amounts payable under the Senior Loan Documents; (ii) the payment of
all of the principal of, interest on and other amounts payable under the Subordinate Loan
Documents, other than by reason of payments which the Subordinate Lender is obligated to remit
to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of
title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of
a power of sale contained in, the Senior Security Instrument; or (iv) the acquisition by the
Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of
foreclosure of, or the exercise of a power of sale contained in, the Subordinate Security
Instrument, but only if such acquisition of title does not violate any of the terms of this
Agreement.
(i) Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be considered an original for all purposes; provided, however, that all such
counterparts shall together constitute one and the same instrument.
[COUNTERPART SIGNATURE PAGES TO FOLLOW]
MIADOCS 14589916 2 S-1
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
SENIOR LENDER:
WITNESSES: FLORIDA HOUSING FINANCE
CORPORATION
Print:
By:
Print:
Address:
[SEAL]
STATE OF FLORIDA
COUNTY OF LEON
The foregoing instrument was acknowledged before me this _____ day of ___________,
20__, by, as _______________ of the Florida Housing Finance Corporation, a public corporation
and a public body corporate and politic duly created and existing under the laws of the State of
Florida, on behalf of Florida Housing. Said person is personally known to me or has produced a
valid driver's license as identification.
Notary Public; State of Florida
Print Name:
My Commission Expires:
My Commission No.:
MIADOCS 14589916 2 S-2
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
SUBORDINATE LENDER:
WITNESSES:
________________________________
Print: ___________________________
________________________________
Print: ___________________________
By: ________________________________________
Name: _____________________________________
Title: _______________________________________
STATE OF FLORIDA
COUNTY OF ______________
The foregoing instrument was acknowledged before me this _____ day of
_______________, 20__, by _________________, as _________________ of _____________,
a Florida municipal corporation, who is personally known to me or has produced a valid driver's
license as identification.
Notary Public; State of Florida
Print Name:
My Commission Expires:
My Commission No.:
MIADOCS 14589916 2 S-3
COUNTERPART SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
BORROWER:
WITNESSES:
________________________________
Print: ___________________________
________________________________
Print: ___________________________
By:
By: ______________________________
STATE OF __________________
COUNTY OF ________________
The foregoing instrument was acknowledged before me this _____ day of
_____________, 20__, by _____________________, as __________ of __________________,
on behalf of the _____________________ and _________________. Said person is personally
known to me or has produced a valid driver's license as identification.
Notary Public; State of ______________
Print Name:
My Commission Expires:
My Commission No.:
MIADOCS 14589916 2
EXHIBIT A
LEGAL DESCRIPTION