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HomeMy WebLinkAboutReso 2012-1898 RESOLUTION NO. 2012 - I fAct fIj A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, REMOVING THE USE RESTRICTION IMPOSED ON THE TRANSFER OF DEVELOPMENT RIGHTS ("TDRs") OWNED BY JERRY'S FAMOUS DELI, INC. ("JERRY'S"); AND PROVIDING FOR A TRANSFER FEE; APPROVING THE ASSIGNMENT OF 98,996 SQUARE FEET OF TDRs TO ADUS, LLC. ("ABUS"); PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Jerry's Famous Deli, LLC currently owns 98,996 square feet ofTDRs and fifty (50) units in a TDR bank established by the City; and WHEREAS, on or about April 3, 2012, Jerry's entered into an assigmnent of transfer of development rights with Abus, wherein Jerry's assigned and transferred 98,996 square feet ofTDRs and fifty (50) units to Abus as assignee; and WHEREAS, the City has reviewed the assignment of transfer of development rights agreement between Jerry's and Abus and has no objection to the documentation or assignment of transfer of98,996 square feet ofTDRs and fifty (50) units to Abus; and WHEREAS, the TDRs owned by Jerry's are required to be used strictly in conjunction with an approved site plan on the west side of Collins A venue; WHEREAS, the City Commission wishes to remove the use restriction imposed on 98,996 square feet ofTDRs and fifty (50) units provided that a transfer fee is paid to the City and approve the assignment. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section I. Removal of use Restriction on TDRs. The City Commission hereby deletes the use restriction imposed on the 98,996 square feet ofTDRs and fifty (50) units owned by Jerry's Famous Deli, Inc. Section 2. Transfer Fee. As a condition precedent of deleting the use restriction on the TDRs owned by Jerry's Famous Deli, Inc., Abus LLC shall pay the City a minimum fee of$15.00 per square feet pursuant to Section 265-23 (0) of the City Code. The transfer fee shall be $1 ,484,940.00 based on the ownership of98,996 square feet ofTDRs assigned to Abus. Payment of the transfer fee shall be made pursuant to the Promissory Note attached hereto as Exhibit "A". Section 3. Approving of Assignment. The City hereby approves the assigmnent of 98,996 square feet ofTDRs and fifty (50) units from Jerry's to Abus, a copy of the assignment documents Page I of2 are attached hereto as Exhibit "B" The City shall establish a TDR bank account in the amount of98, 996 square feet ofTDRs with fifty (50) units for Abus. Section 4. Authoritv of the Citv Manager and Citv Attornev. The City Manager and the City Attorney are authorized to do all things necessary to effectuate this Resolution. Section 5. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 19th day of April, 2012. ATTEST: ) ~(' i' \ ,:.~ ~~I ~).^~ Jane A. Hines, CMC, City Clerk APPROVED AS TO FORM AND L AL FFICIENCY: Moved by: V'~O ~ ~M..fR Seconded by: QoW\IIV\'lQ.\'bUI'if<> .\\<;'1 [DN ~ Vote: 4- \ Mayor Edelcup Vice Mayor Thaler Commissioner Aelion Commissioner Gatto Commissioner Scholl ---lL-(Yes) ....lL.(Yes) ~Yes) . V(Yes) ~ _(Yes) (No) (No) _(No) _(No) ~(No) Page 2 of2 PROMISSORY NOTE ,2012 FOR VALUE RECEIVED, the undersigned, Chateau Beaeh, LLC, a Florida limited liability cornpany ("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 Four Hundred Eighty-Four Thousand Nine Hundred Forty and 001100 Dollars ($1,484,940.00) (the "Indebtedness") regarding the release of a use restriction for 98,996 square feet of Transfer Development Rights ("TDRs") and fifty (50) units that will be assigned to the Maker. A copy of the Letter Agreement for Release of Use Restrictions on Development Rights is attached hereto as Exhibit "A" and incorporated herein by reference. The Indebtedness thereon shall be due and payable on the Maturity Date (as hereinafter defined). As consideration for deleting the use restriction for 98,996 square feet of TDRs that will be assigned to Maker, Maker agrees to pay the City the sum of $1 ,484,940.00. The released price is fifteen ($15) dollars per square feet. Maker agrees to pay the $1,484,940.00 in three (3) installment payments within a two (2) year period. Within three (3) days of approval of the release of the use restriction by the City Commission, Maker agrees to make an initial payment of $484,940.00 to the City. Within one (I) year of the aforementioned initial payment, Maker shall make a payment of $500,000.00 (hereinafter referred as the "Second Payment") to the City. The final payment of $500,000.00 shall be due within one (I) year of the Second Payment. All payments shall be made to Finance Department of the City of Sunny Isles Beach. 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 incun'ed by Payee. Additionally, if Maker fails to pay the Indebtedness on the Maturity Date in accordance with the terms of this Promissory Note, the Payee shall have the right to prevent the Maker from using any TDRs that have not been fully paid for. 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, 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, Promissory Note -Chateau Beach, LLC EXHIBIT "A" 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, VOLUNTARILY AND INTENTIONALLY 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 THIS NOTE. MAKER AND PAYEE EACH ACKNOWLEDGE THAT THE PROVISIONS OF THIS 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,forum non conveniens) thereto. (Signatures on following page.] Promissory Note - Chateau Beach, LLC Promissory Note - Chateau Beach, LLC MAKER: Chateau Beach, LLC, a Florida limited liability company By: Manual Grosskopf Managing Member City Commission Norman S. Edeleup Moyor lewis J. Thaler Vice Moyor Isaac Aelion Commissioner Jeanette Gotto Commissioner Georlle "Bud" Scnoll Commissioner A10n J. Cohen City Manager Hons Ottinol City Attorney Jane A. Hines City Clerk March 27,2012 Via E-Mail & Us Mail Clifford Schulman, Esq.. Weiss Serota Helfman Pastoriza Cole & Boniske 2525 Ponce de Leon Blvd, Suite 700 Coral Gables, FL 33134 Re: Revised Letter: Release of Use Restriction on Development Rights Dear Mr. Schulman: This letter shall confrrm the agreement between the City of Sunny Isles Beach ("City") and Chateau Beach, LLC ("Chateau Beach") regarding the release of a use restriction for 98,996 square feet of transfer development rights ("TORs") and fifty (50) units that will be assigned to the Chateau Beach. The City and Chateau Beach agree to the following tenus, subject to the approval of the City Commission: (I) As considemtion for deleting the use restriction, the Chateau Beach agrees to pay the City the sum of$I,484,940.00 for the release of the use restriction for 98,996 square feet of TORs. The released price is fifteen ($15) dollars per square feet. (2) Chateau Beach agrees to pay the $1,484,940.00 in three (3) installment payments within a two (2) year period. Within three (3) days of approval of the release of the use restriction by the City Commission, Chateau Beach agrees to make an initial payment of $484,940.00 to the City. Within one (I) year of the aforementioned initial payment, Chateau Beach shall make a payment of$500,000.00 (hereinafter referred as the "Second Payment") to the City. The final payment of$500,000.00 shall be due within one (1) year of the Second Payment. All payments shall be made to Finance Department of the City of Sunny Isles Beach. (3) During the two (2) year installment period herein, Chateau Beach may use or sell for development purposes only the TORs that have been fully paid for under the installment payment agreement. Please confirm the foregoing agreement between the parties by executing where indicated below and returning a fully executed copy for our records at your earliest convenience. This agreement may be executed in counterparts, each of which taken EXHIBIT "A" together shall constitute one and the same original and facsimile or email copies shall constitute an original. i er tv lattachments HO/jb cc: The Honorable City Commission Alan J. Cohen, City Manager Sharon Ragoonan, Asst. City Managerl Services MinaI Shah, Asst. City Manager/Finance Manuel Grosskopf Claudia Hasbun, Planner ACKNOWLEDGED AGREED: By: Manuel Grosskopf, DATED: March 27, 201 1 JERRY'S FAMOUS DELI, INC. 12711 Ventnra Blvd. ,Suite 400 Studio City, CA 91604 April 11. 2012 City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33 I 60 Re: Transfer of98,996 Sq.Ft. ofTDRs from Jerry's Famous Deli, Inc., a California corporation to Abus, LLC, a Florida limited liability company Gentlemen: The undersigned is the President of Jerry's Famous Deli, Inc., a California corporation ("JeITY's"). JeITY's has closed on its sale of 98,996 square feet of TDRs to Abus, LLC, a Florida limited liability company. You are hereby instructed to transfer from the 98,996 square feet of TDRs which you are holding for the benefit of Jerry's, the amount of 98,996 square feet of TDRs to Abus, LLC, a Florida limited liability company. Ene\osed is copy of the executed Assignment of Transfer to Development Rights. If you have any questions, please contact my attorney, Howard 1. Friedberg or Alicia M. Morales-Fcrnandez, both with Katz Barron Squitcro Faust at 305-856-2444. Very truly yours, Jerry's Famous Deli, Inc. EXHIBIT "Ill' CORPORATE RESOLUTION AND INCUMBENCY CERTIFICATE OF JERRY'S FAMOUS DELI. INC. The undersigned. Jason Starkman as President of Jerry's Famous Deli, Inc.. a California corporation (the "Corporation"), does hereby certify unto whom ilmay concern as foliows: I. That the Corporation is a California corporal ion authorized to transact business in the State of Florida. and that Jason Starkman is the President 2. That no dissolution, bankruptcy or insolvency proceedings with respect to the Corporation or any of its oftieers have been commenced. 3. The foliowing person is an ollicer of the C~ Jason Starkman President / / [specimen signature] 4. That at a Special Meeting of the Officers of the Corporation, duly calied and held at the office of said Corporation on the 26'" day of March. 2012, at which meeting a quorum was prescnt and voted, the foliowing resolution was adopted, to-wit: WHEREAS, it is to the best interests of the Corporation to seli to Abus, LLC. a Florida limited liability company ("Purchaser") it rcmaining 98.996 square fcct of Transfer of Development Rights ("TDRs") which is currently held in a Bank with the City of Sunny Isles Beach, Florida for the sum of $1,682,932 plus or minus prorations and expenses of sale, ali consistent with the Purchase and Sale Agrcement executed by the Corporation and Purchaser on Fcbruary I, 2012 (as amended). NOW, THEREFORE, BE IT RESOLVED that Jason Starkman, as Presidenl of the Corporation, be and is hereby authorized and directed on behalf of the Corporal ion to do whatever may be necessary, including the signing and execution of any documents required and appropriate to convey thc TDRs from the Corporation to the Purchaser, and that the said officer be and is hereby authorized and directed to execute in the name and on behalf of the Corporation. an Assignment of Development Rights. and any and ali other documents necessary and proper to carry into effect this resolution consistent with the Agreement That the foregoing resolution is outstanding and has not been modified or rescinded. This Resolution may be executed in counterparts and ali counterparts when taken together shali constitute one resolution. IN WITNESS WHEREOF, I have hereunto set my hand and seal as the President of Jerry's Famous Deli, Inc., a Florida corporation, hereto as of the ~ day of March, 2012. STATE OF FLORIDA ) :SS. COUNTY OF MIAMI.DADE ) The foregoing instrument was acknowledged before me this !J1fJllcli , 2012, by Jason Starkman, Presidenl of Jerry's corporation,cwllo IS personally known to ~r who has produced identilication and who did take an oath. rH 30 day of Famous Deli, Inc., 2 a California as INDEMNIFICATION AGEEMENT This Indemnification Agreement dated this 3 day of N/J.\ ,2012, by JERRY'S FAMOUS , DELI, a California Corporation ("JERRY'S"), and ABUS, llC, a Florida limited liability company ("ABUS") in favor of the City of Sunny Isles Beach, Florida (the "City"). WITNESSETH: WHEREAS, JERRY'S has assigned to ABUS 98,996 sq. ft. of the Transfer of Development Rights ("TDRs") held in an account designated and held for the benefit of JERRY'S with the City; and WHEREAS, JERRY'S and ABUS have agreed to indemnify and hold harmless the City as hereinafter provided; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties do hereby agree as follows: 1. The above recitals are true and correct and are incorporated herein. 2. JERRY'S has assigned to ABUS 98,996 sq. ft. of TDRs which are held in an account for the benefit of the JERRY'S. 3. JERRY'S and ABUS, agree and do hereby indemnify and hold harmless the City from any liability as to any claims that may arise between them or any private parties as a result of the transfer of the TORs from JERRY'S to ABUS. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. (See separate signature pages) 1 JERRY'S FAMOUS DELI, INC., jZ.Dj S,"t40iSJt-'S,K1 a California corporation By: !p/7UJ20 Ja STATE OF FLORIDA :SS. COUNTY OF MIAMI-DADE) 711 The foregoing instrument was acknowledged before me this '30 day of 111/Jllcfl , 2012, by Jason Starkman, President of Jerry's Famous Deli, Inc., a California corporation, ~ho is personally known to me or _ who has produced as identification and who did take an oath. Lt7)(J/lfad 4.4zit / P Notary Public 2 Witnessed: ASSIGNEE: ~~~ ~ Print Name: III.MA4~. c;k ABUS, llC, B Manuel Grossko STATE OF FLORIDA :SS. COUNTY OF MIAMI-DADE) T e foregoing instrument was acknowledged before me this tI; ~ day of 2012, by Manuel Grosskopf, Manager of Abus, llC, a Florida limited liability company, _ who is personally known to me or _ who has produced as identification and who did take an oath. ,'!i,~~ li'~'* 1~, DAISY M. SOTOLONGO I'{.i ;., MYCOMMISSION'DD841976 II '~'. ~4 EXPIRES, March 29, 2013 II ij,k'l'~" Bonded Thru Notary PublIc Underwriters 3 ASSIGNMENT OF TRANSFER OF DEVELOPMENT RIGHTS KNOW ALL MEN BY THESE PRESENTS, that Jerry's Famous Deli, Inc., a California corporation ("Assignor"), for and in consideration of the sum of Ten and No/IOO ($10.00) Dollars, and other good and valuable consideration, paid, received from, and on behalf of Abus, LLC, a Florida limited liability company ("Assignee"), its heirs, successors, or agents, in Miami- Dade County, Florida, State of Florida, the receipt and sufficiency of which is hereby acknowledged and accepted, does hereby grant to Assignee 98,996 square feet of Transfer of Development Rights ("TDRs") held in an account designed for and held for Assignor, with the City of Sunny Isles Beach, Florida. WHEREFORE, Assignor has on deposit in a TDR Bank with the City of Sunny Isles Beach, Florida, the amount of98,996 square feet ofTDRs in an account of which 98,996 square feet ofTDRs is for the benefit of Assignee as owner of same; NOW, THEREFORE, in consideration of the mutual promise and exchange between the parties and other good and valuable consideration, the parties agree and stipulate as follows: I. The above recitals are true and correct and are hereby incorporated by reference herein. 2. Assignor upon execution of this Assignment, hereby assigns and transfers 98,996 square feet ofTDRs to Assignee, its heirs, successors, or agents. TO HAVE AND TO HOLD, the same unto the said Assignee, its heirs, legal representatives, successors, administrators and assigns forever. IN WITNESS WHEREOF, the party herein has caused this Assignment of Transfer Development Rights, to bf ~uted by its duly authorized representative freely and voluntarily on this '3 day of M!\ ,2012. (See Separate Signature Pages) Witnessed: p,g;-~~, IJRi PriI/t Name: Jli'IIfUI ((. C~,; ASSIGNEE: STATE OF FLORIDA ) :SS. COUNTY OF MIAMI-DADE ) T e foregoing instrument was acknowledged before me this elol1t day of ,2012, by Manuel Grosskopf, Manager of Abus, LLC, a Flori a limited liability c mpany, who is personally known to me or who has produced //", as identification and who did take an oath. i"I"!A\'1tJ;;.. DAISY M. SOTOLONGO [.! "r:) MYCOMMlSSIONIOOB41976 '~'. !fiF EXPIRES: March 29 2013 "?':P."';,'&,"" BondedThruNolaryPub!icUndelWlilers ~~~ Notar ublic {/ 2 ASSIGNOR: JERRY'S FAMOUS DELI, INC., a California corporation cJOS& LO)<0'l1w By: Jason St STATE OF FLORIDA ) :SS. COUNTY OF MIAMI-DADE) TI}? foregoing instrument was acknowledged before me this 30 -r /I day of flIflllc ,2012, by Jason Starkman, President of Jerry's Famous Deli, Ine., a California corporation;:w-ho i~.JlersonilllY. known to me r who has produced as identification and who did take an oat . '771/1'14tUtI :?,JdI..t Notary Pubfic ~ ......~;)!t!~~.., MARGARET ZELENKA !1Jm\ Notary Public. Slale 01 Florlja i' .'i My Comm. Expires Apr 14. 2014 \~ ~i Commission 1/ DO 947537 " ,$'..... ~~II'I 8ol'lded Through National Notary Assn. 3 JERRY'S FAMOUS DELI, INC. MarchPl! 2012 City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 Re: Transfer of 101,640 Sq. Ft. ofTDRs from Jerry's Famous Deli, Inc. to Abus, LLC Gentlemen: The undersigned is the President of Jerry's Famous Deli, Inc., a California corporation ("Jerry's"). As a follow up to Jerry's letter to you of February 9, 2012, copy of which is altached, please be advised that the transfer of 2,644 sq. ft. of the 101,640 sq. ft. of "TDR's" (as defined in said letter) have already been transferred to Abus, LLC., a Florida limited liability company ("Abus"). The final transfer of the remaining 98,996 square feet ("Remaining TDR's") is about to occur and will be closed pursuant to the terms and conditions of the Purchase and Sale Agreement by and between Abus and Jerry's, dated February 1,2012 (as amended, the "Agreement") and upon the City of Sunny Isles Beach approval of the transfer of the remaining TDR's. Although the closing contemplated by the subject agreement has not yet closed, wc are placing you on notice so that should there be a closing under the subject agreement, we will send you a letter after the subject closing of the Remaining TDRs advising you to complete the transfer of the Remaining TORs from Jerry's to Abus, LLC. Please note that you are not to transfer the Remaining TDRs to Abus or anyone else without a letter signed by Jerry's, authorizing this transfer which will be provided at, and only upon any closing of the sale of the TDRs between the above parties. Very truly yours, JERRY'S FAMOUS DELI, INC., a California corporation 7 ~7 r-r'tI-.,f',WS'7 Preview TO: FROM: DATE: RE: Page 1 of2 City of Sunny Isles Beach 18070 Collins Avenne Snnny Isles Beach, Flo..ida 33t60 (305) 947-0606 City lIall (305) 949-3113 Fax MEMORANDUM The !-Ionorable Mayor and City Commission !-Ians Oltinot. City Attorney 4/19/2012 Removal of Use Rest..ietion on TDRs owned by Jerry's Famous Deli (".Je....y's") 1 Assignment ofTDRs to Abus, LLC ("Abus") RECOMMENDATION: This Resolution is prcsented for your approval. REASONS: The purpose of the attached Resolution is to remove a use restriction that was imposed on TDRs owned by Jerry's Famous Deli, Inc. The removal of use restriction is required in order for the TDRs to be used for any site in the City. As a condition of removal of the use restriction, the owner or the TDRs is required to pay the City the sum of $1,484,940.00. This sum shall be paid on an installment basis in accordance with the attached Promissory Note. Specitically, the City will receive an initial payment of $484,940.00 within thrce (3) days of approval of the attached Resolution. The remaining balance of $1 Million Dollars shall be paid within two (2) years of the initial payment. Moreover, Jerry's is requesting that the TDRs in question be assigned to Abus upon the removal of the use restriction. As a matter of backgrouncL Jerry's had previously assigned 2, 644 square feet of TDRs and two (2) units to Abus pursuant to an approval Resolution by the City Commission. . ATTACHMENTS: Removal of Use Restriction on TDRs owned by Jerry's Famous Deli, Inc. Agenda Item I 0 L ~-l~ http://sibagenda.si b fl. netl agenda/Previ ew. aspx 'II tem I D=7 5 9&MeetingID Date Preview Page 2 of2 Exhibit "A" Promissory Note Exhibit "B" Assignment ofTDRs http://sibagenda.sibfl.net/agenda/Preview.aspx?I temID=7 59&MeetingID=0&MeetingDate... 4/ II /20 12