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HomeMy WebLinkAbout24455AGREEMENT INFORMATION AGREEMENT NUMBER 24455 NAME/TYPE OF AGREEMENT WYNWOOD WORKS, LLC DESCRIPTION DISBURSEMENT AGREEMENT FOR NRD-1 PUBLIC BENEFITS TRUST FUNDS (WYNWOOD WORKS)/RENTAL HOUSING UNITS FOR LOW INCOME HOUSEHOLDS EFFECTIVE DATE May 25, 2023 ATTESTED BY ATTESTED DATE DATE RECEIVED FROM ISSUING DEPT. 5/23/2023 NOTE 2W DISBURSEMENT AGREEMENT FOR NRD-1 PUBLIC BENEFITS TRUST FUNDS (WYNWOOD WORKS) This DISBURSEMENT AGREEMENT for NRD-1 Public Benefits Trust Funds ("Disbursement Agreement") is made as of this 25th day of May, 2023 by and between WYNWOOD WORKS, LLC, a Florida limited liability company (hereinafter the "Project Sponsor"), and the WYNWOOD WORKS MTZ, LLC, a Florida limited liability company, and its successors and assigns (hereinafter the "Lender"). RECITALS WHEREAS, the Project Sponsor is developing a project known as Wynwood Works (the "Project"), that will increase the supply of rental housing units for Extremely Low (including individuals transitioning out of homelessness), Very Low, and Low Income Households in the City of Miami (the "City"), as further described in the Loan Agreement (defined below); and WHEREAS, on December 22, 2023, the NRD-1 Public Benefits Trust Fund Committee of the Wynwood Business Improvement District approved an allocation of NRD-1 Public Benefits Trust Fund ("NRD-1") funds in the amount of Three Million, Five Hundred Thousand and 00/100 Dollars ($3,500,000.00) to the Project Sponsor for certain Project construction hard costs (the "NRD-1 Funds"); and WHEREAS, the funding commitment of the Lender to the Project Sponsor for the NRD-1 Funds is more fully described in that certain NRD-1 Loan Agreement of even date herewith (the "Loan Agreement"); and WHEREAS, the Project Sponsor and the Lender desire to establish the mechanism whereby the Project Sponsor will apply to receive the NRD-1 Funds; 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 Lender agree as follows: ARTICLE I DISBURSEMENT PROCEDURE 1.1 This Disbursement Agreement establishes the conditions to the Lender's obligation to loan the NRD-1 Funds to the Project Sponsor. The Project Sponsor may not request disbursement of funds pursuant to this Disbursement Agreement until such funds are needed for the reimbursement of eligible costs. Provided the Lender is obligated to disburse the NRD-1 Funds pursuant to the Loan Agreement, the Lender will disburse such funds in accordance with this Article I. 1.2 The Project Sponsor shall submit draw requests for the NRD-1 Funds, which draw requests will be submitted not more frequently than one (1) time per month. The Lender shall not fund any draw request in an amount that exceeds the Lender'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 Lender: Page 1 of 6 (a) Hard Costs: (i) A request for disbursement, in a form acceptable to the Lender ("Request for Disbursement"), setting forth such details concerning construction of the Project as the Lender 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 Lender 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. (iii) Applications for receiving NRD-1 Funds for reimbursement of hard costs will include such architectural documents as the Lender may require. The City of Miami's inspector (the "City Inspector") 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 Lender may require. Lien waivers/releases shall be submitted to the City Inspector for review and approval before each disbursement. If the Lender 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 Lender may require. (d) Each Request for Disbursement shall constitute a representation and certification by the Project Sponsor and the Contractor to the Lender 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 Lender; (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 applicable Federal, state and local laws and regulations relating to labor standards and with HUD Handbook 1344.1 where applicable. Page 2 of 6 (vi) Such other information and documents as the Lender 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. 1.3 The City Inspector will review the work that is incorporated into the Project and for which each Request for Disbursement of the NRD-1 Funds 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 Lender. All construction change orders must receive 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 Lender. 1.4 Within ten (10) business 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 Lender 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 thathas been delivered by the Project Sponsor. 1.5 The City Inspector shall complete its inspection and submit its report to the Lender within five (5) business days of receipt of the Notification. 1.6 If the Lender finds the materials submitted by the Project Sponsor and the report of inspection by the City Inspector to be satisfactory to the Lender and in accordance with the Loan Agreement, the Lender shall fund to the Project Sponsor the sum requested by the Project Sponsor or such lower sum as the Lender deems appropriate. 1.7 The Lender shall fund disbursements of the NRD-1 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 hereof, and the inspection report of the City Inspector, in the form required by Sections 1.2 and 1.3 hereof, provided that all necessary documentation is complete and correct. 1.8 The Lender shall retain five percent (5%) of the NRD-1 Funds allocated to the Project Sponsor's hard costs until it has received confirmation that the Project has been issued a certificate of occupancy or temporary 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 Lender. 1.9 The Lender reserves the right to refuse to fund any disbursement request(s) in the event that the Lender 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 Housing and Community Development Disbursement of Funds Checklist. ARTICLE II MISCELLANEOUS 2.1 This Disbursement Agreement may only be amended in writing by all the parties Page 3 of 6 hereto. 2.2 This Disbursement 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 Disbursement 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. 2.4 In the event litigation, arbitration, or mediation, between the parties hereto, arises out of the terms of this Disbursement 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 This Disbursement Agreement shall be construed and enforced pursuant to the laws of the State of Florida, excluding all principles of choice of laws, conflict of laws and comity. Any action pursuant to a dispute under this Disbursement Agreement must be brought in Miami -Dade County and no other venue. All meetings to resolve said dispute, including voluntary arbitration, mediation, or other alternative dispute resolution mechanism, will take place in this venue. The parties both explicitly waive any defense that venue in Miami -Dade County is not convenient. 2.6 This Disbursement 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 Disbursement Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Disbursement 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 Disbursement Agreement upon request. 2.7 This Disbursement Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. [Signatures on the Following Page] Page 4 of 6 IN WITNESS WHEREOF, this Disbursement Agreement has been executed by the Project Sponsor and the Lender on the date first above written. PROJECT SPONSOR: WYNWOOD WORKS, LLC, a Florida limited liability company By: Wynwood Works Manager, LLC, a Florida limited liability company, its manager By: Magellan Housing LLC, a Florida limited liability company, its manager By: /" " / - Nikul A. Inamdar, Member ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me by means of 9 physical presence or ❑ online notarization this day of May, 2023 by Nikul A. Inamdar, as a member of Magellan Housing LLC, a Florida limited liability company, the manager of Wynwood Works Manager, LLC, a Florida limited liability company, the manager of Wynwood Works, LLC, a Florida limited liability company, on behalf of the companies, who is personall known to me or has produced -axasO L as identification. KATHERINE SUAREZ Commission # HH 232777 Expires .prii 6, 2026 Pr- ame: , Notary Public, State of Florida at large Page 5 of 6 WITNESS Print am Print Nam - STATE OF FLORIDA COUNTY OF MIAMI-DADE ) Lender: WYNWOOD WORKS MTZ, LLC, a Florida limited liability company By: Mt. Zion Developments, Inc., a Florida not for profit corporation, its manager By: L ACKNOWLEDGMENT The foregoing instrument was sworn to and subscribed before me by means otk physical presence or ❑ online notarization this of May, 2023, by Larry D. Capp, as President of Mt. Zion Developments, Inc., a Florida not for profit corporation, the manager, of Wynwood Works MTZ, LLC, a Florida limited liability com any, on behalf of such limited liability company, who is personally known to me or has produced Y iCPY1�_ identification. 10452860.3 P in Name: Notary Public, State of Florida at large OL'FYPVe� MARITZA DELGADO :Notary Public -State of Florida ';`►ilT•P` Commission # HH 362666 My Commission Expires June 06, 2027 _I Page 6 of 6