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HomeMy WebLinkAbout25361AGREEMENT INFORMATION AGREEMENT NUMBER 25361 NAME/TYPE OF AGREEMENT DFI MUNDY LLC DESCRIPTION AMENDED & RESTATED DISBURSEMENT AGREEMENT/INCREASE SUPPLY OF RENTAL HOUSING UNITS FOR LOW-INCOME HOUSEHOLDS IN COCONUT GROVE/MATTER ID: 23-2476/#54 EFFECTIVE DATE December 31, 2024 ATTESTED BY TODD B. HANNON ATTESTED DATE 12/30/2024 DATE RECEIVED FROM ISSUING DEPT. 12/30/2024 NOTE a53u AMENDED AND RESTATED DISBURSEMENT AGREEMENT FOR DFI MUNDY LLC This Amended and Restated Disbursement Agreement for American Rescue Plan Act of 2021 ("ARPA") funds ("Agreement") is made as of this 31st day of December, 2024 by and between DFI MUNDY LLC. a Florida limited liability company, (hereinafter the "Project Sponsor"), and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "City"). RECITALS WHEREAS, the Project Sponsor is developing a project known as DFI Mundy (the "Project"), that will increase the supply of rental housing units for Low -Income Households in the community known as Coconut Grove; and WHEREAS, the City had originally entered into certain Loan Documents for the Loan with Casa Valentina, Inc, a Florida Not For Profit Corporation; and WHEREAS, the aforementioned Loan Documents have been assigned to and assumed by the Project Sponsor; and WHEREAS, the funding commitment of the City to the Project Sponsor for the ARPA Funds is more fully described in that certain ARPA Loan Agreement of even date herewith (the "ARPA Agreement"); and WHEREAS, it is understood that Project Sponsor will use the ARPA Funds in connection with the purchase real property, between the Effective Date and December 31, 2024, and for related hard construction costs thereafter in order to develop the Project and the Project Sponsor and the City desire to establish the mechanism whereby the Project Sponsor will apply to receive the ARPA Funds as opportunities to acquire eligible parcels of land materialize; and 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: 1 1 Provided the City is obligated to disburse the ARPA Funds pursuant to the terms of the ARPA Agreement and this Agreement, the City will disburse such funds in accordance with this Article I. 1.2 The Project Sponsor shall submit written draw requests for the ARPA Funds. The Project Sponsor will submit or cause to be submitted the following documentation to the City, for the City's review for sufficiency, prior to any disbursement of ARPA Funds by the City: ARTICLE I DISBURSEMENT PROCEDURE 1.1 The ARPA Agreement establishes the conditions to the City's obligation to loan the ARPA Funds to the Project Sponsor. The Project Sponsor may not request disbursement of funds, pursuant to this Agreement, until such funds are needed for the purchase of an eligible parcel of real property pursuant to Miami City Commission Resolution R-21-0427, which was adopted on October 14, 2021 ("Property") or for related hard construction costs to develop the Properties pursuant to Miami City Commission Resolution R-24-0472 adopted on November 21, 2024. Page 1 of 6 1 1.2.1 Property Purchase Draws (i) A written request for disbursement ("Request for Disbursement"), in a form acceptable to the City, setting forth such details concerning acquisition of the Property as the City shall require, including: the amount of ARPA Funds requested, the address and folio number of the eligible property that Project Sponsor desires to purchase using ARPA Funds, the requested timing of the disbursement of ARPA Funds, a certification that the Project does not and will not violate any law, ordinance, rule, regulation, or order or decree of any court or governmental authority, evidence of the Project Sponsor's satisfactory compliance with all of the applicable requirements of the ARPA Program, pursuant to 31 CFR Part 35, in the City's sole and absolute discretion, and a certification that no Event of Default has occurred and is continuing and there is no continuing default under the Loan Documents. Each Request for Disbursement must be signed by the Project Sponsor's authorized representative pursuant to Project Sponsor's corporate resolution as escribed in the ARPA Agreement. (ii) An executed purchase and sale agreement, in a form acceptable to the City, with Project Sponsor purchasing an eligible Property. (iii) A title insurance commitment issued by a title insurance company acceptable to the City identifying the City's insurable interest, the Project Sponsor's fee simple ownership interest in the Property, together with copies of all instruments which appear as exceptions therein, title insurance policy, seller's affidavit, proof of payment of premium, all in forms acceptable to the City. The title commitment and policy shall be issued without exceptions, except for those exceptions permitted by the City, and shall include such affirmative coverage as the City shall require. (iv) Proof that there are no leases, tenancies, licenses or agreements for use of any part of the Property other than as specifically disclosed to and approved by the City, which, for avoidance of doubt (and which the City hereby acknowledges and agrees), are limited to the leases for the rental of each ARPA Assisted Unit each which may be entered into from time to time. (v) An original current survey of the Property made by a registered surveyor satisfactory to the City and the title company and containing such certifications as the City and the title company may require. (vi) A current appraisal of the Property made by a member of the American Institute of Real Estate Appraisers. (vii) A Phase 1 Environmental Site Assessment, and phase 2 if required by Phase 1 Environmental Site Assessment. (viii) Property condition/engineering report, in a form acceptable. to the City, if applicable. (ix) Insurance Policies. The Project Sponsor shall obtain and furnish evidence of insurance coverage as the City may require in connection with the Project and/or any part thereof, which may include, but is not limited to, the following: Page 2 of 6 (a) Commercial General Liability with limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate, protecting against property damage, advertising injury claims, personal injury and bodily injury, including death. The insurance policy shall be written on a primary and non-contributory basis and shall further list the City as an additional insured. (b) Business Auto Liability affording coverage on all owned autos, including hired and non -owned auto exposures with limits of $1,000,000 per accident. The City shall be listed as an additional insured. (c) Workers' Compensation and Employer's liability coverage subject to the statutory limits as required by the laws of the State of Florida ("State"): The Project Sponsor shall be required to obtain and maintain at all times the insurance coverage outlined under this Section, and shall further furnish evidence to the City of such. In addition, the Project Sponsor shall require its contractors to furnish certificates of insurance in accordance to Exhibit "J." To the extent available from the applicable insurance company, all such policies shall provide the City with a written notice of cancellation or material change from the insurer not less than thirty (30) days prior to any such cancellation or material change, and all such policies shall be written by insurance companies satisfactory to the City. Failure of the Project Sponsor to submit all required evidence of the specified insurance coverage fourteen (14) calendar days prior to the start of Project shall delay the disbursement of the ARPA Funds. (x) A closing disclosure, in a form acceptable to the City. (xi) Such other information and documents as the City may reasonably require. 1.2.1.1 The City shall disburse ARPA Funds by no sooner than fourteen (14) working days after it has received and accepted the documents and information required by Section 1.2.1 hereof. 1.2.2 Hard Construction Draws The Project Sponsor shall submit draw requests for the ARPA Funds, which draw requests will be submitted not more frequently than one (1) time per month. The City shall not fund any draw request in an amount that exceeds the City's initial contribution percentage of the entire development cost of the project. The Project Sponsor will submit or cause to be submitted the following documentation to the City: (a) Hard Costs: (i) 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 material men; 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. (ii) Any Request for Disbursement must be submitted to the City by no later than the thirtieth (3 0th) day of each month. Each Request for Disbursement must be signed by the Project Sponsor, the Architect for the Project and the Contractor. Page 3 of 6 (iii) Applications for receiving ARPA Funds for reimbursement of hard costs will include and such architectural documents as the City may require. The City Inspector, as described in Section 1.2.2(e) 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 fmal plans and specifications of the Project; and such other matters as the City may require. Lien waivers/releases shall be submitted to the City Inspector for review and approval before each disbursement. If the City requires that its title insurance policy be updated, the Project Sponsor shall also submit to the title insurance company all lien waivers/releases in connection with each proposed draw. All costs associated with the title insurance company updating the title insurance policy shall be paid by the Project Sponsor. (b) OMITTED (c) Such other information and documents as the City may require. (d) 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. (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 where applicable. (vi) Such other information and documents as the City may reasonably require. (vii) Each item for which reimbursement is requested in a Request for Disbursement is properly chargeable as a capital expense for federal income tax, accounting and state law purposes. A (e) The City Inspector will review the work that is incorporated into the Project and for which each Request for Disbursement of the ARPA Funds is submitted. The City Inspector will review and approve the fmal 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. Page 4 of 6 (f) Within ten (10) working days of its receipt of a Request for Disbursement delivered pursuant to Section 1.2.2 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. (g) The City Inspector shall complete its inspection and submit its report to the City within five (5) working days of receipt of the Notification. (h) 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. (i) The City shall fund disbursements of the Bond Funds by no later than fourteen (14) business days after it has received both the Request For Disbursement, in the form required by Section 1.2.2 hereof, and the inspection report of the City Inspector, in the form required by • Sections 1.2.2(a) and 1.2.2(g) hereof, provided that all necessary documentation is complete and correct. (j) The City shall retain five percent (5%) of the ARPA Funds allocated to the Project Sponsor's hard costs (the "Allocation Retainage") until it has received confirmation that the project has issued a Certificate of Occupancy, 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. (k) 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) 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 Housing and Community Development Disbursement of Funds Checklist. 1.3 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, including but not limited to the United States Department of the Treasury's final rule, 31 CFR Part 35, that implements the Coronavirus State Fiscal and Local Fiscal Recovery Funds established under the American Rescue Plan Act of 2021, or an material provision of the Loan Documents. ARTICLE II MISCELLANEOUS 2.1 This Agreement may only be amended in writing by all the parties hereto. 2.2 This Agreement, the ARPA 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 ARPA Agreement. Page5of6 2.4 In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Agreement, each party shall be responsible for its own attorney's fees, costs, charges, and expenses through the conclusion of all appellate proceedings, and including any final settlement or judgment. 2.5 Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. [Signature Page Follows] [Remainder of page intentionally left blank.] Page 6 of 6 IN WITNESS WHEREOF, this Disbursement Agreement has been executed by the Project Sponsor and the City on the date first above written. WI ESSSES: Print Name:,_ Print Name:,74 I' PROJECT SPONSOR'S ADDRESS: DFI MUNDY, LLC 19 West Flagler Street Suite 1001 Miami, FL 33130 Attention: Irving Weisselberger STATE OF FLORIDA } COUNTY OF MIAMI-DADE } SS: PROJECT SPONSOR: DFI MUNDY, LLC, a Florida limited liability company BY: DRAGONFLY INVESTMENTS, LLC, a Florida limited liability company, its manager Irving Weisselberger Title: Manager ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of E physical presence or O online notarization, thisgn �day of December, 2024 by Irving Weisselberger as Manager of Dragonfly Investments, LLC, a Florida limited liability company, the manager of DFI Mundy, LLC, a Florida limited liability company. He is personally known to me or has produced as identification. (NOTARY PUBLIC SEAL) JULIE QUITTNER Commission #HH181787 My Commission Expires October 5, 2025 gnature of Person Taking Acknowledgment (Printed, Typed, or Stamped Name of Notary Public) Serial Number, if any Page 7 of 6 ATTEST: Todd City Jerk Date: ® �� APPROVED AS TO FORM AND CORRECTNESS: By: George ysong III City Attorney X64t 025- ,25476 CITY: CITY OF MIAMI, a municipal corporation of the State of Florida ("h7.c.IG6c..ox o✓! &La/4— ur Noriega City Manager Page 8 of 6