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HomeMy WebLinkAboutReso 2008-1350 RESOLUTION NO. 2008-J3<iO A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING AN AMENDED AND RESTATED PROMISSORY NOTE BETWEEN THE CITY OF SUNNY ISLES BEACH AND REGALIA HOLDINGS, LLC. FOR PAYMENT OF TRANSFER OF DEVELOPMENT RIGHTS; PROVIDING THE CITY MANAGER AND CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, by Resolution 2007-1121, adopted June 2 L 2007_ the City Commission approved a promissory note between the City of Sunny Isles Beach and Regalia Holdings, LLC. for payment of transfer of development rights ("TORs") pursuant to Resolution No. 2006-891, adopted February 16, 2006; and WHEREAS, Regalia is requesting a six (6) month extension (October 1, 2008 to March 31, 2009) to pay the outstanding balance for the TORs; and WHEREAS, the City Commission wishes to approve the extension request. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Amended and Restated Promissory Note. The City Commission hereby approves the Amended and Restated Promissory Note Attached hereto as Exhibit "A". Section 2. Authorization of the City Mana~er and the City Attorney. The City Attorney and the City Manager are hereby authorized to do all things necessary to effectuate the intent of this Resolution. Section 3, Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this t r day of 2008 ATTEST: ~~~ Jane A. Hines, City Clerk Approving Amcndcd And Rcstatcd Promissory Notc For Rcgalia Pagc I or 2 I APPROVED AS TO FORM AND LE U FICIENCY: Moved by: Cn~ GOb~'N\~ Seconded by: C1~ S:C.\-H'>LL Vote: S-O Mayor Edelcup Vice Mayor Thaler Commissioner Goodman Commissioner Brezin Commissioner Scholl Approving Amended And Restated Promissory Note For Regalia Page 2 or 2 \/""( Yes) V(Yes) ~Yes) ~Yes) --.0Y es) _(No) _(No) (No) _(No) _(No) AMENDED AND RESTATED PROMISSORY NOTE ,2008 Regalia Holdings, LLC ("Maker") executed a Promissory Note (the "Original Note") payable to the City of Sunny Isles Beach ("Payee" or the "City"), which Original Note was in the principal amount of $1,285,614.12. Maker and Payee now desire to amend and restate the Original Note as follows: FOR VALUE RECEIVED, the undersigned, Regalia Holdings, LLC, a Florida limited liability company ("Maker"), promises to pay to the order of the City of Sunny Isles Beach, a political subdivision of the State of Florida ("Payee" or the "City"), at 18070 Collins A venue, 4th Floor, Sunny Isles, Beach, FL 33160 or at such other office as Payee may from time to time designate, the principal sum of One Million Two Hundred Eighty-Five Thousand Six Hundred Fourteen and l2/l 00 Dollars ($1,285,614.12) (the "Indebtedness"), together with interest from the date of issuance of the Permit (as hereinafter defined), at the rate of seven percent (7%) per annum through September 30, 2008, and at the revised rate of seven and a half percent (7.5%) from October 1, 2008, through March 31, 2009. Interest shall accrue monthly on the Indebtedness. All interest amounts shall be payable to the City a year from the date of issuance of the Building Permit. All interest payments made during the extended period on this Note shall be applied by Payee first to the payment of accrued and unpaid interest Maker has paid to Payee $120,000.00 in accrued interest owed on this Note up to October 1, 2008. The parties have agreed to extend the payment terms for an additional six (6) months from October 1, 2008, up to and including March 31, 2009. During this period, Maker agrees to pay interest on a quarterly basis. The first quarterly interest payment shall be due on December 31, 2008. The Indebtedness and accrued and unpaid second quarterly interest shall be due and payable on the revised Maturity Date of March 31, 2009 (as hereinafter defined). If Maker fails to pay the Indebtedness and accrued and unpaid interest by the revised Maturity Date, the Payee shall have the right to revoke the Permit or zoning approval. All terms and conditions of the Original Note shall remain in full force and effect except for the new terms described herein. [Signatures on following page.) Exhibit "A" Amended and Restated Promissory Note - Regalia Holdings, LLC MAKER: rida limited liability \ Amended and Restated Promissory Note - Regalia Holdings, LLC PROMISSORY NOTE ,2007 FOR VALUE RECEIVED, the undersigned, Regalia Holdings, LLC, a Florida limited liability company ("Maker"), promises to pay to the order of the City of Sunny Isles Beach, a political subdivision of the State of Florida ("Payee" or the "City"), at 18070 Collins Avenue, 4th Floor, Sunny Isles, Beach, FL 33160 or at such other office as Payee may from time to time designate, the principal sum of One Million Two Hundred Eighty-Five Thousand Six Hundred Fourteen and 12/1 00 Dollars ($1,285,614.12) (the "Indebtedness"), together with interest from the date of issuance of the Permit (as hereinafter defined), at the rate of seven percent (7%) per annum. Interest shall accrue monthly on the Indebtedness. All payments made on this Note shall be applied by Payee first to the payment of accrued and unpaid interest and thereafter to the reduction of the Indebtedness. The Indebtedness and accrued and unpaid interest thereon shall be due and payable on the Maturity Date (as hereinafter defined). Pursuant to City Resolution No. 06-Z-102, the City granted a modification to a previous site plan for the Maker's project known as the Regalia and located at 19505 Collins Avenue, Sunny Isles Beach, Florida (the "Project"). As part of the original approval for the Project, the City adopted Resolution No. 03-Z-75, which granted preliminary approval for the transfer of 54,385 square feet of Transferable Development Rights ("TDR's") from the City for a total purchase price of $4,500,206.86. In accordance with City Resolution 2006-891, Maker is required to pay the total price for the TDR's at the time of obtaining a building permit for the Project (the "Permit"), Maker is in the process of obtaining the Permit from the City for the Project. As part of a negotiated settlement with the City, Maker has agreed to pay for 38,847 square feet of TDR's at the time of obtaining the Permit as this is the actual amount of TDR's being utilized for the Project. Maker has agreed to pay for the remaining 15,538 square feet of TDR's prior to the earlier to occur of (the "Maturity Date"): (a) October 1,2008, (b) the issuance by the City of a temporary certificate of use and occupancy for the Project, or (c) the issuance by the City of a final certificate of occupancy for the Project. The price to be paid to the City for the remaining TDR's has been determined by the City to be the Indebtedness. If this Note is not paid promptly on the Maturity Date in accordance with its terms and is placed in the hands of an attorney for collection, Maker agrees to pay all reasonable attorney's fees and the costs and expenses of collection of this Note incurred by Payee. Maker covenants and agrees that time is of the essence for payments due under this Note. All agreements between Maker and Payee, whether now existing or subsequently arising and whether written or oral, are expressly limited so that, in no contingency whatsoever, whether by reason of acceleration of the maturity of this Note or otherwise, shall the amount paid or agreed to be paid to Payee pursuant to the terms of this Note or otherwise or for the payment or performance of any covenant or obligation contained in this Note or in any other document evidencing, securing or pertaining to the indebtedness evidenced by this Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, MIAM] 1343042.27442013896 fulfillment of any provision of this Note or other document, at the time performance of such provision shall be due, shall involve exceeding the maximum amount permissible by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit validly allowed by law. If Payee shall ever receive, as interest or otherwise, an amount. which would exceed the highest lawful rate of interest, such amount which would be excessive interest shall be applied to the reduction of the principal amount owing under this Note or on account of any other principal indebtedness of Maker to Payee and not to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of this Note and such other indebtedness, such excess shall be refunded to Maker. The terms and provisions of this paragraph shall control and supersede every other provision of all agreements between Maker and Payee. This Note shall be prepayable, in whole or in part, at any time and from time to time without premium or penalty at the sole option of the Maker, with the amount of the prepayment being credited first in respect of accrued but unpaid interest and second in respect of principal. No invalid provisions of this Note shall affect or impair any other provision. Maker and each endorser, surety and guarantor acknowledge receipt of a completed copy of this Note. MAKER AND PAYEE, EACH AFTER CONSULTATION WITH FLORIDA COUNSEL, KNOWINGLY, VOLUNT ARIL Y AND INTENTIONALL Y WAIVE ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, OR THE TRANSACTIONS OR OBLIGATIONS UNDER WHICH THIS NOTE WAS DELIVERED, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING TO TI-IIS NOTE. MAKER AND PAYEE EACH ACKNOWLEDGE THAT THE PROVISIONS OF TI-fIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO PAYEE'S ACCEPTANCE OF THIS NOTE AND MAKER AGREEING TO TERMS OF THIS NOTE. No amendment, modification, waiver or discharge of this Note, or any provision of this Note, shall be valid or effective unless in writing and signed by Payee and Maker. This Note shall be construed in accordance with the internal laws of the State of Florida, exclusive of its choice of law principles, and any suit, action or proceeding arising out of or relating to this Note must be commenced and maintained in a court of competent subject matter jurisdiction in Miami-Dade County, Florida and Maker consents to such jurisdiction and venue and waives all objections (including, without limitation,jorum non conveniens) thereto. [Signatures on following page.] MIAMI 1343042.2 74420138962 MIAMI 1343042.2 74420 I 38963 ~_.- City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-3 1 13 Fax (305) 947-2150 Building Department (305) 947-5107 Fax City Commission Norman S. Edelcup, Mayor Lewis J. Thaler, Vice Mayor Gerry Goodman, Commissioner Roslyn Brezin, Commissioner George "Bud" Scholl, Commissioner A. John Szerlag, City Manager Hans Ottinot, City Allorney Jane A. Hines, CMC, City Clerk MEMORANDUM FROM: The Honorable City commissio~ Hans Ottinot, City Attorney I1fJ, \j TO: DATE: November 6,2008 RE: Approving Amended and Restated Promissory Note - Regalia Holdings, LLC. RECOMMENDATION It is recommended that the City Commission approve the attached Resolution. REASONS Pursuant to Resolution Nos. 06-Z-1 02 and 2006-891, Regalia Holdings, LLC. purchased 54,385 square feet of transfer of development rights ("TDRs") at a price of $4,500,206.86 from the City. At the time of obtaining the building permit for the development project, Regalia provided the City with a payment of $3,214,592.94 for the utilization of 38,847 square feet of the TORs for the project. Upon making the aforementioned payment, Regalia advised the City that it would not utilized all the TORs purchased for the project. As such, Regalia requested a payment plan for the remaining 15,538 square feet of TORs. The price for remaining TORs was determined to be $1,285,614.12. As part of a negotiated settlement, the City and Regalia executed a promissory note whereby Regalia agreed to pay the outstanding balance of $1,285,614.12 on or by October 1, 2008. Regalia further agreed to pay interest on the outstanding balance at a rate of 7.0%. Unable to make full payment on the promissory note by October 1, 2008, Regalia requested a six (6) month extension to make full payment on the note. As consideration for this request, Regalia provided the City with a payment of $120,000 for interest on the note that has accrued up to October 1, 2008. Under the Amended and Restated Promissory Note, Regalia will be provided with a six (6) month extension (up to March 31, 2009) and will be required to pay interest at a rate of 7.5%. Interest payments are required to be made on a quarterly basis with the first payment due on December 31, 2008. If Regalia fails to pay the outstanding note, the City has the authority to revoke its building permit. Agenda Item I 0 :\ Date ~l ~ .0'1 City Commission Norman S. Edelcup Mayor Lewis J. Thaler Vice Mayor Roslyn Brezin Commissioner Gerry Goodman Commissioner George "Bud" Scholl Commissioner A. John Szerlag City Manager Hans Ottinot City Attorney Jane A. Hines City Clerk November 25,2008 Mr. Jerold M. Kaufman Managing Member Regalia Holdings, LLC 18767 Biscayne Boulevard A ventura, Florida 33180 Re: Approval of an Amended and Restated Promissory Note between the City and regalia Holdings, LLC. For Payment of TDRs Dear Mr. Kaufman: At its meeting of November 18,2008, the City Commission approved Resolution No. 2008-1350, which approved the above Amended and Restated Promissory Note. Attached is a copy of the approving legislation for your files. Thank you. Very truly yours, ~A~ Jane A. Hines, CMC City Clerk Attachment cc: Hans Ottinot, City Attorney Jorge Vera, Assistant City Manager/Services Office of the City Clerk (305) 792-1703 Phone (305) 949-3113 Fax Regalia Holdings - Jerold Kaufman Approval Ltr