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HomeMy WebLinkAboutDisbursement AgreementEXHIBIT D DISBURSEMENT AGREEMENT This Disbursement Agreement ("Agreement") is made as of the day of , 2006 by and between Allapattah Business Development Authority, Inc., a Florida not -for -profit corporation (hereinafter the "Project Sponsor"), and the City of Miami, a municipal corporation of the State of Florida (hereinafter the "City"). RECITAL WHEREAS, the Project Sponsor is developing a project, known as the Ralph Plaza II Townhomes (the "Project"), that will increase the supply of Affordable homeownership housing units for Low Income persons and households; and WHEREAS, on April 28, 2006, the City of Miami Housing and Commercial Loan Committee approved an allocation of State Housing Initiatives Partnership ("SHIP") funds in the amount of $500,000.00 for Project infrastructure improvements and construction change -orders (herein referred to as the "SHIP Funds" or the "Loan"), and, WHEREAS, the funding commitment of the City to the Project Sponsor for the SHIP Funds is more fully described in that certain State Housing Initiatives Partnership Program Loan Agreement of even date herewith (hereinafter referred to as the "Loan Agreement"); and WHEREAS, the Project Sponsor and the City desire to establish the mechanism whereby the Project Sponsor will apply to receive disbursements of the Loan. NOW, THEREFORE, for and in consideration of the Project Sponsor's construction and development of the Project and the reciprocal agreements set forth herein, the Project Sponsor and the City agree as follows: ARTICLE I DISBURSEMENT PROCEDURE 1.1 The Loan Agreement establishes the conditions to the City's obligation to disburse the Loan to the Project Sponsor. The Project Sponsor may not request disbursement of funds pursuant to this Agreement until such funds are needed for the reimbursement of eligible costs. Provided the City is obligated to disburse the Loan pursuant to the Loan Agreement, the City will disburse such funds in accordance with this Article I. 1.2 The Project Sponsor shall submit draw requests for the Loan, which draw requests will be submitted not more frequently than one (1) time per month. The Project Sponsor will submit or cause to be submitted the following documentation to the City: (a) A Request for Disbursement, in a form acceptable to the City, setting forth such details concerning construction of the Project as the City shall require, including: the amount paid to date to the General Contractor constructing the Project (the "Contractor") and pursuant to the contract for the construction of the Project between the Project Sponsor and the Contractor (the "Construction Contract"); the amounts, if any, paid directly by the Project Sponsor to subcontractors of the Contractor and materialmen; the amount then currently payable to the Contractor, broken down by trades; the amounts paid on account of the Contractor's construction fee; and the balance of the construction costs which will remain unpaid after the payment of the amount currently payable. Any Request for Disbursement must be submitted to the City by no later than the thirtieth (30th) day of each month. Each Request for Disbursement must be signed by the Project Sponsor, the Architect for the Project and the Contractor. Applications for receiving Loan for reimbursement of hard costs will include a Memorandum of Advance and such architectural documents as the City may require. The City Inspector, as described in Section 1.3 hereof, shall be required to certify with each draw request: the amount of work on the Project that has been completed; the good and acceptable workmanship of the Contractor and its subcontractors; compliance with approved final plans and specifications of the Project; and such other matters as the City may require. Lien waivers shall be submitted to the title insurance company, the City Inspector, and the City for review and approval before each disbursement. If the City requires that the title insurance company monitor all lien waivers, the Project Sponsor shall also submit to the title insurance company all lien waivers in connection with each proposed draw. All costs associated with the title insurance company in monitoring lien waivers shall be paid by the Project Sponsor. (b) Each Request for Disbursement shall constitute a representation and certification by the Project Sponsor and the Contractor to the City that: (i) The materials have been physically incorporated into the Project, free of liens and security interests, and that the construction of the Project to date has been performed substantially in accordance with the drawings and specifications and in a first-class workmanlike manner; (ii) All governmental licenses and permits required by the Project as then completed have been obtained and are available for inspection by the City; (iii) The Project as then completed does not violate any law, ordinance, rule, regulation, or order or decree of any court or governmental authority; and (iv) No Event of Default has occurred and is continuing and there is no continuing default under the Construction Contract. it:Docurncnt 47133 2 (v) The Project Sponsor, the Contractor and each subcontractor has complied with all Federal, state and local laws and regulations relating to labor standards and with HUD Handbook 1344.1. (c) Such other information and documents as the City may reasonably require. 1.3 The City Inspector will review the work that is incorporated into the Project and for which each Request for Disbursement of the Loan is submitted. The City Inspector will review and approve the final plans and specifications for the Project and will review and approve the draw requests based on the percentage of work completed. The City Inspector's reviews, approvals, and conclusions shall be for the sole benefit of the City. All construction change orders must receive the prior written approval of the City Inspector. Change orders that have not received the prior written approval of the City Inspector shall not be approved for payment/ reimbursement by the City. 1.4 Within ten (10) working days of its receipt of a Request for Disbursement delivered pursuant to Section 1.2 hereof and without attempting to verify the completeness of same, the City will notify the City Inspector of the need to inspect the progress of construction work at the Project (the "Notification") and shall forward to the City Inspector the Request for Disbursement that has been delivered by the Project Sponsor. 1.5 The City Inspector shall complete its inspection and submit its report to the City within five (5) working days of receipt of the Notification. 1.6 If the City finds the materials submitted by the Project Sponsor and the report of inspection by the City Inspector to be satisfactory to the City and in accordance with the Loan Agreement, the City shall fund to the Project Sponsor the sum requested by the Project Sponsor or such lower sum as the City deems appropriate. 1.7 The City shall fund disbursements of the Loan by no later than seven (7) working days after it has received both the Request For Disbursement, in the form required by Section 1.2 hereof, and the inspection report of the City Inspector, in the form required by Sections 1.2 and 1.3 hereof. 1.8 The City shall retain five percent (5%) of the Loan allocated to the Project Sponsor (the "Allocation Retainage") until it has received confirmation of completion of the Scope of Work and, at the Project Sponsor's sole cost, a Final Cost Certification prepared by an independent certified public accountant, both in form and substance acceptable to the City. The City shall retain ten percent (10%) of each Request for Disbursement funded until the final Request for Disbursement is funded, at which time the aggregate of all such funds retained (the "Disbursement Retainage") will be funded as part of the final draw, provided, however, that to the extent that the Allocation Retainage is greater than the Disbursement Retainage, the ten percent (10%) retainage for any individual Request for Disbursement shall be it:Document 47133 3 credited against the Allocation Retainage, and further provided, however, that the Disbursement Retainage will be funded as part of the final draw only to the extent that it exceeds the Allocation Retainage. 1.9 The City reserves the right to refuse to fund any disbursement request(s) in the event that the City determines that the Project and/or the Project Sponsor are not in compliance with any local, state or federal law or requirement. 1.10 Disbursements for other than hard costs, if permitted pursuant to the Loan Agreement, shall be made in accordance with the City of Miami Department of Community Development Disbursement of Funds Checklist. ARTICLE II MISCELLANEOUS 2.1 This Agreement may only be amended in writing by all the parties hereto. 2.2 This Agreement, the Loan Agreement and the other documents executed by the parties in connection therewith constitute the entire agreement between the parties hereto and no other agreements or representations, unless incorporated in this Agreement, shall be binding upon any of the parties hereto. 2.3 All capitalized terms not defined herein shall have the meanings provided in the Loan Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the Project Sponsor and the City on the date first above written. Witness: Allapattah Business Development Authority, Inc., a Florida not -for -profit corporation By: Print Name: Xiomara Pacheco, Executive Director Date: City of Miami, a municipal corporation ATTEST: of the State of Florida Priscilla A. Thompson, City Clerk it:Document 47133 By: Date: Pedro G. Hernandez, City Manager 4 Approved As to Form and Correctness: Jorge L. Fernandez, City Attorney IT- ABDA Ralph Plaza II -Ship Disb-08-16-06 it:Document 47133 5