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130-93 RDA RESOLUTION NUMBER 130-93 A RESOLUTION OF THE MIAMI BEACH REDEVELOPMENT AGENCY APPROVING A SECOND EXTENSION AND CLARIFICATION AGREEMENT FOR THE COBB PROJECT AND AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE SAID AGREEMENT. WHEREAS, the Redevelopment Agency of the city of Miami Beach has aggressively pursued the elimination of slum and blight in the South pointe project area; and WHEREAS, Miami Beach Redevelopment Agency has already entered into an agreement with the Cobb Partners to redevelop a site in the South pointe area for residential development; and WHEREAS, market forces have changed to allow a betterment and improvement of said project; and WHEREAS, the developer and the City have concurred that the changes to the Development Agreement currently proposed, as outlined in the agreement, known as the Second Extension and Clarification Agreement are to the benefit of the City and the developer. NOW, THEREFORE, BE IT RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF MIAMI BEACH, FLORIDA, THAT: The Miami Beach Redevelopment Agency hereby approves said agreement entitled, Second Extension and Clarification Agreement and authorizes the Chairman and Secretary to execute same on behalf of the Agency. 2nd day O~:J7~ili~/~ VrJ \ CHAIRMAN PASSED AND ADOPTED this ATTEST: ~cU. <C' ,1~~, SECRETARY HSM: jph By FORM AP~ VED PT'4~ Date -15J vJY /9 B '.':am,5eac:" ~eJevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 REDEVELOPMENT AGENCY MEMORANDUM NO. 93-15 June 2, 1993 To: Chairman and Members of the Board of the Redevelopment Agency From: Roger M. Carlton .LJ JAA ~ , . Executive Direct~~Vv/~ SUBJECT: RESOLUTION APPROVING A SECOND EXTENSION AND CLARIFICATION AGREEMENT FOR THE COBB PROJECT ADMINISTRATION RECOMMENDATION: It is recommended that the Miami Beach Redevelopment Agency (Agency) Board adopt the attached Resolution approving the Second Extension and Clarification Agreement with Cobb Partners, and authorizing the Chairman and the Secretary to execute said agreement. BACKGROUND: The Agency Administration has made substantial progress, in the last few weeks, towards the realization of the Cobb project. The Agency has received an environmental clearance from the Dade County Department of EnVironmental Resources Management (DERM) on the First Phase site. The Developers are ready to proceed with the project, but to reflect current market conditions, have requested several modifications to the existing Development Agreement. The changes are outlined in the attached agreement and primarily affect the following: The project is to be redesigned to allow larger units with the goal of attracting families. In order to maintain the Floor to Area Ratio (FAR), the density may be reduced to as low as 175 units (from a high of 317). The branch library may be relocated to a more focal area to better tie in with the South pointe Elementary School to the north. Pacific International Equities, an experienced Miami Beach builder, will be added to the partnership. The developers will proceed with Phase I of the project utilizing their own capital, and opted not to use a lender. Payment by the developer for the Phase I parcel (Blocks 78 & 80, bounded by Alton Road and Meridian Avenue between 1st and 2nd Street) shall be done in one lump sum in the amount of $2.8 million and shall occur upon closing, which is currently scheduled for July 15, 1993. Previously, the closing date had been scheduled to occur no later than August 6, 1993. Payment for the Phase II parcel (Block 53, bounded by Washington and Meridian Avenues between 1st and 2nd street) in the amount of $1,636,000 shall occur at closing which is scheduled for November 15, 1994. Previously the Phase II closing was to occur no later than February 6, 1996. l' au . -'" -'" June 2, 1993 Redevelopment Agency Memorandum 93-15 page 2 The Miami Beach Redevelopment Agency expressed to the developer a desire to cap its liability during the acquisition of the remaining Phase II (Block 53) properties. The attached agreement caps the Agency's liability at $3.45 million and allows the Developer to advance funds to the Agency, in excess of the cap, to complete the acquisition. In turn, the advance would be credited against the purchase price at the time of the closing on the Phase II parcel. The Redevelopment Agency and Developer believe that land values will not exceed the stated amount; however, attorneys' fees and other issues have driven overall costs up in the past and the cap concept is deemed to be a valid one. The proposed amendment also caps the Agency's ultimate liability at $4 million in the event of a default. Previously, the Development Agreement did not address a cap once the developer was given a notice to proceed. ANALYSIS: The Administration believes that the proposed amendment to the agreement and time line are realistic and fair. The Agency will receive a better product and be provided an opportunity to cap its overall liability. The Administration is also assisting the developer to obtain building permits in order to vest the project should a county-wide moratorium be put into effect. A separate agreement, attached as a letter to Laurence Feingold, will be executed to reflect the necessary cooperation to obtain permits and allow the developer an opportunity to begin marketing the project. John Lukacs, special Counsel to the Agency for property acquisition, has reviewed and verified that the revised scope is consistent with the original Request For Proposal. CONCLUSION: The Miami Beach Redevelopment Agency Board should approve the attached agreement. RMC: jph Attachments 2 ...- ...- SECOND EXTENSION AND CLARIFICATION AGREEMENT This Agreement is made and entered into as of the 2nd day of June, 1993, by and between the Miami Beach Redevelopment Agency, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, Chapter 163, Part III, Florida statutes (1985, as amended), whose principal place of business is located at 1700 Convention Center Drive, Miami Beach, Florida 33139 (the "Agency"), and Cobb Partners South Beach, Ltd., a Florida limited partnership, as assignee of and successor in interest to Cobb Partners Development, Inc., a Florida corporation, whose principal place of business is located at 2333 Ponce de Leon Blvd., Penthouse, Coral Gables, Florida 33134 (the "Developer"). N.lTN~~~~Tll.l. WHEREAS, the undersigned are parties to a Contract of Purchase and Sale and Cobb Development Agreement, both dated March 31, 1989, a Contract of Purchase and Sale Modification Agreement and Modification to Cobb Development Agreement, both dated October 9, 1989, and an Extension and Clarification Agreement dated February 6,1991 (collectively, the "Contracts," unless otherwise specified, the defined terms of which are incorporated herein by reference), all relating to a redevelopment project being undertaken by Developer referred to as the New Development on the Old Police Station Site, Miami Beach, Florida (the "Project"); and WHEREAS, each of the undersigned parties has respectively determined it to be beneficial and in its best interests to extend, reaffirm, supplement and clarify the Contracts. NOW THEREFORE, for $10.00 paid by each party to the other, the covenants, conditions and forbearances set forth herein and other good and valuable consideration, the receipt and sUfficiency of which are hereby acknowledged, the Agency and Developer hereby mutually acknowledge, consent and agree to the following: 1. CLOSING. Pursuant to the Contracts, the parties were previously required to satisfy all of the requirements and conditions precedent to closing and to close on the sale of Parcel 1 not later than August 8, 1993. Because of unforeseen delays which were not the fault of either party, the parties may not be able to comply with the aforesaid deadline, particularly insofar as the same relate to pre-closing requirements; and because of various changed circumstances associated with the passage of time, both parties agree to extend and supplement the Contracts as provided herein. The mandatory deadlines for various acts by either party shall be extended as indicated on the revised time line chart attached as Exhibit "A" hereto (unless otherwise specifically addressed herein). Without limiting the generality of the foregoing, the notice of complete and unrestricted access to all of Parcel 1 is to be delivered as soon as the land is cleared of the last remaining improvements (but in any event, not later than 15 days prior to closing) and the specific Performance Notice as to Parcell is deemed to be given hereby. The parties shall mutually cooperate in good faith to accelerate satisfaction of all pre- closing requirements and conditions and to expedite the closing of sale on both Parcels. The closing on Parcel 1 and payment by Developer of the purchase price in the amount of $2,800,000 shall occur on or before July 15, 1993. The closing of Parcel 2 and payment by Developer of the purchase price in the amount of $1,636,000 (subject to the credit for Developer's advance, if any, as provided in paragraph 6 below) shall occur on or before November 15, 1994. 2. ASSIGNMENT. JOINT VENTURING, ENTITY RESTRUCTURING. The Developer's rights, ti tie, interest and obi igations under the contracts have been assigned to and assumed by Cobb Partners South Beach, Ltd., a Florida limited partnership, consistent with section M of the aforesaid contract of Purchase and Sale and section 4 of the aforesaid Cobb Development Agreement. No aspect of the foregoing assignment shall operate to diminish the Developer's flexibility pursuant to section 8 of the aforesaid Extension and Clarification Agreement to rename, restructure or reconstitute itself, to involve additional parties or entities, or to enter into one or more joint ventures in order to pursue the development of the Project. 3. CONCEPT PLAN. The Developer shall have the right to adjust its project design and therefore, the "concept plan" referred to in the contracts. The Project will continue to have high quality Mediterranean styling and aesthetic finishes and details, and a project-wide F.A.R. of not less than 1.00 nor more than 1.50. Not less than 175 larger townhome and condominium units (nor more than the previously approved 317 units) would be built, and an on-grade townhome product will be available as an alternative to or in combination with the previously approved integral stacked condominium product constructed over a structural deck. These alternative concept plan parameters will be implemented in appropriate design submissions from time to time, consistent with section 10 of the aforesaid Extension and Clarification Agreement. Nothing contained herein shall be deemed to abrogate the Developer's obligation to submit to and be bound by the design review/approval process, if necessary. It is contemplated that the Developer may utilize one or more townhome associations as well as one or more condominiums, all under a master homeowners association which is to assure the integrity of the unity, cohesiveness and completeness of the entire project, to which common areas, right- of-ways and easements are to be conveyed. In lieu of an easement and maintenance agreement for a decorative feature on the Alton 2 Road island, provided that there shall be no material additional cost or adverse impact to the city of Miami Beach or the Agency and further provided that Developer resolves any utility placement or maintenance conflicts and does not thereby increase the otherwise applicable maximum permitted F.A.R. for the entire Project, the Developer shall have the option to place the library facility on the island and adjoining Michigan Avenue right-of-way in order to achieve a more prominent and community-oriented location on Alton Road for this public amenity, and the Agency shall assist the Developer in procuring from the city of Miami Beach an appropriate easement for any below-grade utility lines with the right to build over same. 4. DEMONSTRATION OF FINANCIAL CAPABILITY. Provided that the Developer demonstrates cumulative committed capital of more than $7,000,000, which shall entail the ability to close on Parcell and to fund from its own sources the first phase of construction, it shall be deemed to have fully met all financial commitment and funding requirements under the contracts, in lieu of a simultaneous third party loan closing and the reaffirmation or substitution of prior financing commitments, with any additional financing obtained by the Developer as needed, based upon diligent prosecution of the Project. 5. BUILDING PERMITS. consistent with existing RM-PS1 zoning for the Project under Ordinance 89-2665, should there be any required revisions to design documents due to future changes contemplated by the revised concept plan, design review or code compliance that affect any existing building permits, such revisions for initial foundation construction on the site shall be submitted by Developer on or before January 5, 1994. Furthermore, any revisions necessary to satisfy the building official and facilitate his authorization for the Developer to proceed with the initial phase of vertical construction shall be submitted and obtained on or before March 4, 1994. Developer shall have met its obligation with respect to timely validating the foregoing permits if it has complied with the foregoing deadlines, has provided the Agency with preliminary design submittal materials on or before July 23, 1993, and if it completes its design review submittal on or before september 24, 1993. After the initial phase of construction, any additional revisions to the existing permitted drawings shall be submitted in sequential fashion, as the demand for the Project evolves. Once the Developer has demonstrated the cumulative committed equity (as discussed in item 4 above), has closed on the land and has completed the first phase of construction (the number of units thereof being determined by the Developer) pursuant to the Contracts, all further Project construction staging and orchestration shall be done with due diligence based on absorption. 3 6. PARCEL 2. The Agency shall immediately undertake appropriate action to prepare a condemnation action on the remaining properties in Parcel 2. From and after the closing of Parcell, the Agency shall diligently file and prosecute a condemnation action to acquire the balance of Parcel 2. Should the cost of acquisition of Parcel 2 exceed the sum of $3,450,000 (excluding environmental audits and approval and its own attorneys' fees, but including statutory attorneys' fees to the owners of the condemned properties), the Developer shall advance to the Agency up to $1,600,000 against the purchase price of Parcel 2 upon the request of the Agency Director. The Developer shall be entitled to accrued interest on the purchase price of Parcel 1 from the date of closing until January 4, 1994, on the purchase price of Parcel 2 from the date of closing until the earlier of April 15, 1995 or the date Developer requests the first vertical construction permit for Parcel 2, and on the amount advanced by Developer as set forth above from the date of the advance to the date of repayment, which interest shall accrue at the rate of 7% per annum, and may be taken as a credit at the closing of Parcel 2. The Specific Performance Notice as to Parcel 2 shall be deemed given upon the delivery of a notice to that effect as contemplated by the contracts or the entry of a final, non-appealable Order of Taking as to Parcel 2, whichever shall last occur. 7. LETTERS OF CREDIT. The form of the letters of credit provided by the contracts, draws under which are the exclusive remedy for failure to timely complete the project, shall be given by an issuer reasonably acceptable to the Agency, and shall be conformed to any change in the unit count and applicable dates. The letters of credit shall be posted prior to the respective closings to which each relates. 8. CONTINUATION OF EFFECTIVENESS. without thereby altering the Developer's deadlines to close on or commence construction on Parcel 1 or Parcel 2 except as set forth in this Agreement, and in consideration of the unforeseen delays faced by the parties in assembling and preparing the land for redevelopment, the Cobb Development Agreement, Modification to Cobb Development Agreement and the Extension and Clarification Agreement shall continue in effect and the maturity of such agreements are hereby extended for an additional four years. This paragraph shall not operate to extend any of the parties' other performance deadlines. 9. REAFFIRM EXISTING CONTRACTS. Each of the parties hereto hereby reaffirms and extends its obligations and commitments under the contracts, as qualified herein. without limiting the generality of the foregoing, the remedies granted to the Developer in the event of new or additional city of Miami Beach impact fees under Section 7 of the Cobb Development Agreement and Section 12 of the Modification of Cobb Development Agreement shall survive for the full term of said Development Agreements (as extended herein) . Except as explicitly extended, clarified or modified herein or 4 previously, the Contracts shall survive and continue in full force and effect. However, in the event of any conflict between the terms of the various Contracts and this Agreement, the terms of the later document shall always take precedence and govern. 10. RATIFICATION OF PRIOR ACTS. Both parties hereby ratify the prior acts of their respective agents and counsel in furtherance of or consistent with the Contracts or this Agreement, including but not limited to the agreement letter regarding accelerated permits between their counsel dated April 26, 1993, and all actions taken pursuant thereto in order to secure development rights for the project. 11. MUTUAL WAIVER OF EXISTING DEFAULTS. Each party hereby waives any prior or existing defaults, claims or causes of action of any nature, by the other party, of the terms of the Contracts, and agrees that the other party has fully performed under the Contracts through the date hereof. 12. ARBITRATION. Any controversy or claim for money damages arising out of or relating to the Contracts, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to the Contracts, or the breach thereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. 13. LIMITATION OF LIABILITY /LIOUIDATED DAMAGES. As each party hereto is in the best possible position to know the nature and character of the Contracts, the parties stipulate that they are in the best position to make the following provisions. Therefore, the parties agree that the liability of the Agency under the Contracts for monetary damages shall not in any event exceed $4,000,000 after the date hereof (but such limitation shall not relieve either party of its obligations of good faith and due diligence). The parties further stipulate that the limitation of liability set forth above constitutes just compensation for any damages that may occur under the Contracts. The imposition of any higher award of damages against the Agency would be unconscionable. 5 14. STATEMENT OF UNDERSTANDING. Clarification Agreement evidences the continue their mutual cooperation completion of the Project. This Second Extension and commitment of the parties to to achieve the successful IN WITNESS WHEREOF, the und signed have caused this instrument to be executed as of the ate first set forth above. SS: ATTEST: BY:~~wV\. [. ~~ STATE OF FLORIDA COUNTY OF DADE BEFORE ME, the y duly authorized in the State and ~ounty afore~d to take a nowledgments, personally appeared }C:;;eL }) \' .j::> 'EU7 E f\ , well !>rown to me or who presented in the rm of fi;5 H~--ft").R. , the Chairman of the Miami Beach Redevelopment Agency, and who took an oath, acknowledging that he executed the above and foregoing document as his free act and deed, for and on behalf of said Agency as its duly authorized representative, for the purposes set forth therein, and that the seal affixed thereto is the true and correct seal of said Agency. IN WITNESS WHEREOF, I have hereunto set my hand and af~x~ my official seal, in the state and County aforesaid, on this' day of June, 1993. /) I ...{ '. / ,.,.,--. I l.... ''-~ --- . ,'.'~ ATTEST: [N ]c':::?' c 'L Notary Public, state of / at Large NOTARY PUBLIC, ~TAn OF n.ORmA' '" MY COMMISSION EXPIRES: June 11, 1;95-. 'ONDED THRU NOTARY PUBLIC UNDERWllITERS. COBB PARTNERS SOUTH BEACH, LTD. By: VIKING VENTURES, INC., as its General Partner ~ ~(.. By: FORM APPRbVED \' LEGAl' D&P~ By "~ ~6k4t/ Date (p .Ii J;":l / (corporate Seal) 6 STATE OF FLORIDA ss: COUNTY OF DADE BEFORE ME, the undersigned authority duly authorized in the state and county aforesaid to take acknowledgments, personally appeared R.T. Brinkley, II, well known to me ,or who presented identification in the form of Jii: 1----, .I1J. , the presi ent of viking Ventures, Inc., the General Partner of Cobb Partners South Beach, Ltd., and who took an oath, acknowledging that he executed the above and foregoing document as his free act and deed, for and on behalf of said corporation as its duly authorized representative, for the purposes set forth therein, and that the seal affixed thereto is the true and correct seal of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and a~iXed~y official seal, in the state and County aforesaid, on thi~~ay of June, 1993. ,- / ,,/ ./ ~- C.. / ~-'?'. . I ,/,L--' [NAME] --cJ ,. ,I L / Notary Publi , of Flori a at NOTARY PUBLIC, STATE nil' I?LORmA. MY COMMtSSlON EXt>IRES; June 11, 199!. BONDED 'l'IJRU NOTA!l.lI PUBLIC UNlJIZRWIUT\:!ll. 2NDCLREX.FIN 7 EXHIBIT "A" Execution of Second Extension and Clarification Agreement and delivery of estoppel letter Completion of demolition, vacations and delivery of complete and unrestricted access to Parcel resolution of title and environmental issues as to Parcel 1 Schematic drawings for revised Concept Plan Closing on Parcel 1 (subject to pre-conditions) Staff Review of Design Review Submissions, commencement of condemnation on Parcel 2 Resubmission for Final Design Review and approval of same Projected closing on Parcel 2 (subject to pre- conditions) Submission of foundation revisions and Building Department's final review of same Construction to begin for Phase 1 Submission of vertical construction revisions and Building Department's final review of same 6-2-93 1, 7-1-93 7-7-93 7-15-93 7-23-93 9-24-93 11-15-93 1-5-94 1-30-94 3-4-94