Loading...
HomeMy WebLinkAbout24689AGREEMENT INFORMATION AGREEMENT NUMBER 24689 NAME/TYPE OF AGREEMENT STADIUM TOWER APARTMENTS DESCRIPTION DISBURSEMENT AGREEMENT/2320 NW 8TH AVENUE MIAMI, FLORIDA 33127/FILE ID: 12775/R-22-0420/MATTER ID: 22- 2776K EFFECTIVE DATE December 19, 2022 ATTESTED BY NICOLE EWAN ATTESTED DATE 12/19/2022 DATE RECEIVED FROM ISSUING DEPT. 12/8/2023 NOTE DISBURSEMENT AGREEMENT FOR STADIUM TOWER APARTMENTS LLC This Disbursement Agreement for American Rescue Plan Act of 2021 ("ARPA") funds ("Agreement") is made as of this 101*- day of 0 VA& (f , 2022 by and between STADIUM TOWER APARTMENTS LLC, a Florida limited liability company (hereinafter the "Project Sponsor"), and the C1TY OF MIAMI, a municipal corporation of the State of Florida (hereinafter the "City"). RECITALS WHEREAS, the Project Sponsor is developing a project known as Stadium Tower Apartments (the "Project"), that will increase the supply of rental housing units for Very Low and Low -Income Households in the community; and WHEREAS, on November 16, 2022, and November 17, 2022, the City's Housing and Commercial Loan Committee ("HCLC") and the Miami City Commission respectively approved an allocation of ARPA funds in the amount of $1,800,000.00 (the "ARPA Funds") to Project Sponsor for Project's hard and soft construction costs; 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, the Project Sponsor and the City desire to establish the mechanism whereby the Project Sponsor will apply to receive the ARPA 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 City agree as follows: 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 reimbursement of eligible costs. Provided the City is obligated to disburse the ARPA Funds pursuant to the terms of ARPA Agreement and this Agreement, the City will disburse such funds in accordance with this Article I. 1.2 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 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: (a) Hard Costs: (i) A written request for disbursement ("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 Page 1 of 6 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 (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 ARPA Funds 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/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) Soft Costs: (i) A Request for Disbursement, in a form acceptable to the City, together with: (a) original invoices of those costs for which the Project Sponsor is requesting disbursement (If 50% or less of a soft cost is being requested from the City, a copy of the invoice can accompany the Request for Disbursement.), and (b) copies of the Project Sponsor's checks in payment of each soft cost for which disbursement is being requested. (ii) Within thirty (30) days of the date of each Request for Disbursement, the Project Sponsor shall submit to the City copies of its cancelled checks confirming final payment of each cost included in such Request for Disbursement. (iii) Each Request for Disbursement of soft costs must be signed by the Project Sponsor. (c) Such other information and documents as the City may require including but not limited to Phase 1 environmental report in a form acceptable to the City. (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; Page 2 of 6 (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. (vi) 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 ARPA 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 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 ARPA 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 ARPA Funds by no later than fourteen (14) 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 ARPA Funds allocated to the Project Sponsor (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. 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, including but not limited to the United States Page 3 of 6 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. 1.10 Disbursements for other than hard costs, if permitted pursuant to the ARPA Agreement, shall be made in accordance with the City of Miami Department of Housing and Community Development Disbursement of Funds Checklist. 1.11 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. 1.12 All ARPA Funds must be drawn down by December 31, 2026, in accordance with ARPA regulations. 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. 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. IN WITNESS WHEREOF, this Agreement has been executed by the Project Sponsor and the City on the date first above written. [Signature Page Follows] Page 4 of 6 WITNESSES: Print Name: I [MID 3 sir 4e-1 Z� Print Name: PROJECT SPONSOR'S ADDRESS: STADIUM TOWER APARTMENT 7735 NW 146th Street Miami Lakes, FL 33016 Attention: Lewis Swezy STATE OF FLORIDA COUNTY OF MIAMI-DADE PROJECT SPONSOR: STADIUM TOWER APARTMENTS LLC, a Florida limited liability company mewes S Tit e: Manager ACKNOWLEDGMENT The foregoing instrument was acknowledged before me by means of 4hysical presence or O online notarization, this kr5 day of ceee.. , 2022 by Lewis Swezy as Manager of Stadium Tower Apartments, LLC. He is personally known to me or has produced as identification. (NOTARY PUBLIC SEAL) [Ty ��, FLOR M PADILLA &p��Notary Public -State of Florida Commission # HH 177130 fz: My Commission Expires A September 20, 2025 quormailmInEMIIMMIIP 0111106 Signature ' ='�;n Taking Acknowled_ (Printed, Typed, or Stamped Name of Notary Public) Serial Number, if any Page 5 of 6 A 1'1'hST: CITY: By. � tC-T • : d Hannon Ci Date: 1 • 2- APPROVED AS TO FORM AND CORRECTNESS: By: Victoria Nirndez City Attorney CITY OF MIAMI, a municipal corporation of the State of Florida By: Arthur Non i ga V City Manager Page 6 of 6