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HomeMy WebLinkAboutMemo-Scrivener's Error!CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Priscilla A. Thompson, C. FROM: Julie O. Bru, City..06iney DATE: August 3, 2012 RE: Scrivener's Error- City Commission Meeting, July 12, 2012 Resolution No. 12-0252, Relating to Wagner Square File No. 12-00751a Resolution No. 12-0252, adopted July 12, 2012, contains a scrivencr's error in the exhibit that was attached. The first page of the Settlement Term Sheet was inadvertently omitted with the transmittal. The attached Settlement Tenn Sheet reflects the entire exhibit of five (5) pages. r 32. G-) CT) Fri rri 0075Ia - Merr7o - Scr; ver,ter s' Error SETTLEMENT TERM SHEET This Settlement Term Sheet (the "Agreement") Is made by and among Drew M. Dillworth, the duly appointed, authorized, and acting chapter 7 bankruptcy trustee ("Trustee Dillworth") of the bankruptcy estate of Wagner Square, LLC, a Florida limited liability company ("Debtor"), the City of Miami (the "City"), Debra Sinkle Kolsky, as trustee for the Debra Sinkle Kolsky Trust (the "Trust"), Jackson Square, LLC, a Florida limited liability company ("Jackson Square"), Redevco Civic Center, LLC, a Florida limited liability company ('Redevco"), Wagner Square I, LLC, a Florida limited liability company ("Wagner I"), and Wagner Square III, LLC, a Florida limited liability company ("Wagner Ill"). Trustee Dillworth, the City, the Trust, Jackson Square, Redevco, Wagner I, and Wagner III are individually referred to as "Party" or collectively referred to as the "Parties," WHEREAS, on April '2012, three creditors of the Debtor filed an involuntary Chapter 7 petition against the- Debtor, initiating the bankruptcy case styled In re Wagner Square, LLC, 12-20659-LMI; WHEREAS, on May 29, 2012, the holders of certain of the equity interests in the Debtor filed a motion consenting to the entry of an Order for Relief provided the case was converted to Chapter 11 and a trustee was appointed; WHEREAS, the holders of the remaining equity interests in the Debtor consented to such relief on June 4, 2012; WHEREAS, on June 7, 2012, the Court entered the Order for Relief and an Order granting the motion to convert the case to Chapter 11 and to appoint a Chapter 11 trustee of the Debtor's Estate. Trustee Dillworth was selected and confirmed to serve as the Chapter 11 Trustee of the Debtor's estate on June 12 and 14, 2012; WHEREAS, on June 15, 2012, Trustee Dillworth filed the Sale Motion, seeking authority for a private sale of Debtor's vacant parcel of real estate located in Miami - Dade County, Florida ("Real Property?), free and clear of all liens, claims and encumbrances, with all such liens, claims and encumbrances, if any, attaching to the proceeds of the sale, and relatedrelief; WHEREAS, the City -claims certain interests In the Real Property Including, without limitation, a mortgage lien and restrictive covenants (the "City Interests") as' more particularly detailed In the Sale Motion; #2248781 vl iin9577v1 1 of 5 WHEREAS, the City opposes the Sale Motion free and clear of the City Interests; WHEREAS, the City:Interests also extend to and encumber two additional parcels of real estate (the "Two Related Properties"), contiguous to the Real Property, which Two Related Properties are indirectly owned by Jackson Square and Redevco through affiliates of the Debtor known as Wagner Square I, LLC, and Wagner Square III, LLC; WHEREAS, the Parties mutually desire to resolve the disputes concerning the Sale Motion, the Real Property, the Two Related Properties, and the City Interests. NOW THEREFORE, in consideration of the foregoing and the mutual promises, undertakings and agreements contained herein, the Parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are true and correct and incorporated herein by reference. 2. Sale of the Real Property, The City shall consent to the Sale Motion and, upon approval of the Bankruptcy Court, Trustee Dillworth shall close on the transaction (the "VA Transaction") contemplated in the Sale Motion. At closing, the City shall be paid the sum of $1,650,000.00 from the sale proceeds of the VA Transaction (the "VA Proceeds"). At closing on the VA Transaction, and from the VA Proceeds, Trustee Dillworth shall satisfy in full any obligations of the City on the BEDI grant from the United States Department of Housing ,and Urban Development ("HUD"), which BEDI loan is associated with the Real PiripeitY.and the Two Related Properties. Upon execution of this Agreement, and until 'OlosIng of the VA Transaction, Trustee Dillworth, Jackson Square, and/or Redevco shall 'be permitted to negotiate with HUD on the amount of the obligations of the City on the BEDI grant, and the City shall not directly or indirectly interfere with such negotiations. No Party shall be permitted to litigate (via motion, objection, adversary proceeding, or otherwise) with HUD concerning the Clty's obligation on the BEDI grant. 3. Transfer of the Two Related Properties. t9 the City. At closing on the VA Transaction, Jackson Square, Redevco, Wagner I, and Wagner III shall cause the Two Related Properties to be transferred to the City free and clear of liens, claims, and encumbrances (with any such liens, claims, encumbrances to be paid at closing on the VA Transaction from the VA Proceeds). 4. Section 108 Loan Surplus. Upon closing of the VA Transaction, the City shall repay the Section 108 loan to HUD from funds currently held In escrow with Suntrust Bank, Any surplus in the Suntrust Bank escrow account after payment of the Section 108 loan to HUD shall be remitted to Trustee Dillworth. The City represents that as of the date of this Agreement, the most recent amortization schedule concerning Ii22487F1 vl ii729577 v I 2 of 5 the Section 108 Loan shows a principal balance of $3,611,000,00, interest due of $12,177.50, for a total balance owed of $3,623,177.50 with accruing interest. 5. Bankruptcy Court & City Commission Approval and Effect of Agreemeht. This Agreement is subject of approval of the both the City Commission (and provided no Mayoral veto is exercised) and the Bankruptcy Court presiding over the Debtor's and Wagner I's bankruptcy case. Should either the City Commission or the Bankruptcy Court not approve the terms of this Agreement, the Agreement is null and void and shall have no force or effect and shall not be enforceable by or against the Parties hereto and the Parties shall be restored to their prior position without any prejudice. 6. Bankruptcy Court' Retention of Jurisdiction. The Bankruptcy Court to retain jurisdiction to interpretiand enforce all the terms of this Agreement. 7, Acknowledgement of Terms. The Parties acknowledge and agree that they have been represented by legal counsel and: (I) they have completely read and fully understand this Agreement and have voluntarily accepted the terms contained herein for the purposes of making a full and final compromise, adjustment and settlement; and (ii) they have determined that this settlement is fair and reasonable under all the circumstances and that this determination is based solely upon their independent judgment after an opportunity to consult with counsel of their choice and, that in making this determination, they have had an adequate opportunity to discuss and assess the merits of all claims or potential claims. 8, Savings Clause. To the extent that any provision of this Agreement is deemed by a court of competent jurisdiction to be unenforceable, void or voidable, this Agreement is modified to the minimum extent necessary to exclude or strike only that discrete portion that Is deemed by such court to be unenforceable, void or voidable and the remainder of this Agreement she continue to remain in full force and effect and be valid and binding on the Parties. 9. Counterparts Copies. Thls Agreement may be executed simultaneously in two or mcire cqunterparts, each of which shall be deemed an original, but all of which together shall,Constitute one and the same Agreement. A facsimile, .pdf or electronic copy of this Agreement and any signature hereon shall be considered for all purposes as originals and delivery of an executed counterpart. 10. Merger Clause. This Agreement constitutes the entire agreement of the Parties. All prior oral and written agreements for all Parties are only those that are set forth herein and none of the Parties Is relying on any promise or representation not set forth in this Agreement. This Agreement can be amended only in writing, signed by all Parties, and none of the terms, conditions or provisions of the Agreement can be N2248781 vl 11729577 vl 3 of 5 waived, changed, altered or modified except by an Instrument in writing signed by all the Parties against whom enforcement of such change Is sought. 11. Choice of Law and jurisdictlon. The Parties agree that the Agreement is governed by Florida law and federal law relating to the Bankruptcy Code and consent to and agree to the Bankruptcy Court for the Southern District of Florida retaining and having exclusive jurisdiction to Interpret and enforce the terms of this Agreement and the judgments to be issued or entered hereunder, 12. Joint Drafting. Thls Agreement shall be deemed to have been jointly drafted by the Parties, and in construing and interpreting this Agreement, no provisions shall be construed and Interpreted for or against any of the Parties because such provisions or any other provision of the Agreement as a whole Is purportedly prepared or requested by such Party. 13. Captions, Captions In this agreement are Included for identification and shall not be used to interpret the Agreement. 14, Releases. At'closing; the Parties shall exchange mutual general releases of any and all claims among them excepting (I) only those obligations udder this Agreement, (II) the scheduled unsecured claim in the Debtor's case of $111,986.65 in favor of the City of Miami -Treasurer (the "Scheduled Unsecured Claim"), to the extent such claim is a claim other than a claim in favor of the Department of Community Development (in which case all parties reserve all rights, claims, arguments, and objections in respect of the Scheduled Unsecured Claim). 15. Further Assurances, The Parties agree that they will execute all documents necessary to effectuate the transactions contemplated by this Agreement. 34 , 142248781 v 1 N729577 vl 4 of 5 DREW DILLWORTH, AS- CHAPTER 7 The Debra Sinkle Kolsky Trust, AGN {3UARE UL /C C, xzwmm./ x/�5n.I 5of5