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93-20991 RESO Incomplete RESOLUTION NO. 93-20991 A RESOLUTION OF THE MAYOR AND CITY COMMISSION RATIFYING AN AMENDMENT TO SECOND EXTENSION AND CLARIFICATION AGREEMENT BETWEEN THE KIAMI BEACH REDEVELOPMENT AGENCY AND COBB PARTNERS SOUTH BEACH, LTD.,FOR DEVELOPMENT OF THE COBB PROJECT. WHEREAS, the Miami Beach Redevelopment Agency (Agency) is a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, Chapter 163, part 3, Florida statutes (1985, as amended); WHEREAS, Cobb Partners South Beach, Ltd., is a Florida limited partnership, and the Assignee of and Successor in interest in Cobb Partners, Inc., a Florida Corporation (Developer); and WHEREAS, the Agency and the Developer are parties to a Contract of Purchase and Sale, and the Cobb Development Agreement, both dated March 31, 1989, a Contract of Purchase and Sale Modification Agreement and a Modification to Cobb Development, both dated October 9, 1989, an Extension and Clarification Agreement, dated February 6, 1991 and a Second Extension and Clarification Agreement, dated June 2,1993 (Contract Documents), which relate to the conveyance and development of real property in the South pointe area for residential development; and WHEREAS, the closing under the Sale and Purchase Agreement is scheduled for November 15, 1993; and WHEREAS, the City concurs that the changes to the Contract Documents currently proposed, as outlined in the Agreement attached hereto and incorporated herein as Exhibit "A", known as the Amendment to Second Extension and Clarification Agreement, are to the benefit of the parties thereto. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH that the Mayor and City Commission hereby ratifies the attached agreement entitled the Amendment to Second Extension and Clarification Agreement, which authorizes the Chairman and the S etary to execut ame on behalf of the Agency. PASSED and ADOPTED this 1993. day of ATTEST: rz~~L~ ~ CITY CLERK c:\wp51\data\cobbrda2examnd.res fORM APPROVED LEGAL DEPT. ~ By j C9 Date 12- z. ~ ~ ,. S AKEHDHBNT TO SECOND EX'l'BNSI0N A1U CLARIFICATION AGREEHENT This Agreement is entered into this day of November, 1993, by the Miami Beach Redevelopment Agency and Cobb Partners South Beach, Ltd. Whereas, the Miami Beach Redevelopment Agency (Agency) is a public agency organized and existing pursuant to the Conununity Redevelopment Act of 1969, Chapter 163, Part III, Florida Statutes (1985, as amended), whose address and principal place of business is located at 1700 Convention Center Drive, Miami Beach, FL 33139; and, Whereas, Cobb Partners South Beach, Ltd., is a Florida limited partnership, and the assignee of and successor in interest to Cobb Partners Development, Inc., a Florida corporation, whose address and principal place of business is located at 11098 Biscayne Boulevard, Suite 402, Miami, FL 33161 (Developer); and, Whereas, the Agency and the Developer are parties to a Contract of Purchase and Sale, and the Cobb Development Agreement, both dated March 31, 1989, a Contract of Purchase and Sale Modification Agreement and a Modification to Cobb Development Agreement, both dated October 9, 1989, an Extension and Clarification Agreement, dated February 6, 1991, and a Second Extension and Clarification Agreement, dated June 2,1993 (Contract Documents), which relate to the conveyance and development of real property as described in Exhibit A (property); and, Whereas, the sale and purchase agreement concerning Parcel 1 is scheduled to close imminently; and, Whereas, the Agency previc'usly learned that portions of the property were contaminated by hydrocarbons and other chemical compounds, and contained abandoned underground storage tanks, and the Agency entered into third-party contracts for the proper assessment and remediation of the property in accordance with applicable legal requirements; and, Whereas, the Agency's environmental consultant prepared and submitted to the Metro-Dade County Department of Environmental Resources Management a Final Report on Remedial Actions, dated January 31, 1993, Analytical Results/No Further Action Plan, dated .March 17, 1993, and a report dated March 24,19!JJ (all of which are referred to as the "written reports"); and, Whereas, the property has been remediated and the Metro-Dade County Department of Environmental Resources Management issued a letter, dated April 20, 1993, stating that no further remedial action is required; and, Whereas, the written reports that were prepared under contract with the Agency were made available to the Developer for review by its environmental consultant, and the Agency and the Developer reasonably believe that the written reports are sufficient in scope and content to adequately disclose the former and the existing recognized environmental conditions of the property; and, Whereas, the Developer has been given unrestricted access to the property and it has undertaken further independent investigation of the environmental condition of the property; and, Whereas, the Developer requests further assurances by the 2 Agency regarding the Agency's leg.al re,sponsibility for (a) removing any additional underground storage tanks and (b) remediating any additional contamination by hazardous substances which might be present at the time of closing and which might later be discovered to be present above applicable regulatory limits in the soils or groundwater at the property; and Whereas, the Agency is agreeable to delivering the property to the Developer, and the Developer is agreeable to accepting the property free from all known abandoned underground storage tanks and free from all known hazardous substances in excess of remedial action limits that were discharged or placed in or upon the soils and groundwater of property prior to the closing, as provided in this Agreement; and, Whereas, the Agency and the Developer have determined that it is in their best interests to amend the Contract Documents, as provided in this Agreement. NOW, THEREFORE, for $10.00 paid by the Developer to the Agency, and the mutual covenants contained in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the Agency and the Developer agree as follows: 1. The recitations in the Whereas clauses are true and correct, and they are incorporated into this Agreement. 2. The Agency shall be responsible for hazardous substances in excess of remedial action levels and underground storage tanks which are or were located on the property prior to closing. It 3 shall undertake further testing, ass~ssment, or remediation of any hazardous substances, or removal of underground storage tanks as is necessary or appropriate under applicable laws, regulations, or government orders (all of which are referred to as "legal requirements") in order to comply or cause the property to conform with the lawful requirements of the appropriate government authority. The Agency shall have no obligation for remediation or investigation beyond that which is required by the appropriate government authorities concerning the environmental condition of the property. 3. The written reports establish the recognized pre-closing baseline environmental condition of portions of the property. As used in this Agreement, the term "baseline condition" means the level of hydrocarbons and other chemical compounds established in the most recent written report setting forth the results of any assessment prior to the closing. The baseline condition shall also include the existence of underground storage tanks that contain or contained a hazardous substance which were installed by any third- party prior to closing, whether leaking or not, regardless whether such tanks are discovered before or after closing. In the event that further testing, assessment, or remediation of hazardous substances or removal of underground storage tanks is required by any governmental authority having jurisdiction over the environmental condition of the property, the baseline condition shall be modified to reflect the results of such conditions. 4 4. In the events of discovery of hazardous substances, as evidenced by observing free floating product, or positive indication of excessively contaminated soils or the presence of hazardous substances above maximum contamination levels, or discovery of underground storage tanks, the party that discovers the condition shall give verbal notification to the other party with 6 hours and written notification within 12 working hours. The Developer shall comply with all legal requirements to notify the appropriate government authority of the condition; provided, however, the Agency may assume responsibility to give notice upon agreement of the parties. The parties shall jointly confer prior to taking public action, but the failure of the parties to confer shall not relieve the Developer of its obligations to comply with all government notification requirements the parties of their obligations under this Agreement. The Agency and the Developer shall meet within 24 hours to determine a proper and expeditious course of action. 5. If the Agency undertakes testing, assessment, remediation, or tank removal actions (Remedial Action), it will provide copies of all environmental documents, including, but not l~ited to, plans, assessments, and tests results, that are performed under its direction and control to the Developer. The Agency does not make any representation or warranty regarding any aspect of the written reports made available to the Developer, including without l~itation, the accuracy or completeness of any such report or other information, its preparation, or any 5 information upon which it is bas.ed. The Agency and the Developer will cooperate in scheduling and conducting any Remedial Action. 6. Alternatively, the parties may agree that Remedial Action will be undertaken by the Developer and the Agency shall reimburse the Developer for its reasonable direct costs. The principal criteria to be used by the parties in deciding whether Remedial Action shall be undertaken by the Developer are whether the Developer can perform the work expeditiously and at a cost that the Agency reasonably believes is comparable to the cost the Agency would incur if the work were subject to competitive bidding or competitive negotiation. 7. The Agency reserves the right to negotiate with any third party or government authority regarding any aspect of Remedial Action. The Developer may participate in any meeting with a government authority, but it shall not oppose the position or the objectives of the Agency concerning any aspect of Remedial Action as long as the Agency's action does not unduly delay or interfere with the Developer'S project. 8. If the Agency undertakes remediation of the baseline condition after the closing: A. The Developer shall, at no cost to the Agency, permit the Agency's employees, agents, and contractors reasonable access to the property, or provide access, for the purpose of conducting testing, investigation, and remedial actions. 6 B. The Developer understands that the Agency's Remedial Action may interfere with the Developer's construction, sales, operations and use of the property, and such actions may delay construction, funding, closings, and occupancy of the development, among other things. The Agency shall, to the practical extent consistent with sound practices, undertake such actions in a manner that will not unreasonably disrupt the Developer'S activities or the activities of the purchasers, tenants, or other users of the property. In no event will the Agency be liable to anyone, including, without limitation, the Developer, the Developer'S successors, assigns, purchasers, tenants, or users for any direct or consequential damage, injury, or loss resulting from the Agency's access and Remedial Actions performed on the property. This exculpatory clause does not apply to actions constituting gross negligence or intentional misconduct. c. After completion of any testing, investigation, and remedial actions, the Agency shall restore the surface, but not any improvements thereon, to a condition 7 substantially similar to the condition existing at the time immediately prior to such action, provided that the Developer has not taken any actions on the property to make such restoration impractical. D. The Agency will continue remediation until (1) it has received written notice from the appropriate government authority that either no fu~ther remediation and monitoring is required, or an approved remediation plan has been implemented to completion; or (2) it has submitted a written request for closure to the appropriate government authority and, in the absence of receipt of the written notice referenced in (1) above wi thin a reasonable period of time, the Agency determines that the soil and groundwater have been remediated to satisfactory levels. 9. If the Developer undertakes Remedial Action, it will provide copies of all environmental documents to the Agency. To the same extent as provided in paragraph 5, the Developer does not make any representation or warranty regarding any aspect of the written reports. In the event the proposed Remedial Action work will not exceed $100,000 for each remediation site, the Developer shall have the option to proceed with the work, to incur costs and to receive reimbursement from the Agency for its reasonable direct 8 costs without submitting the work to the competitive bidding requirements. If the Developer elects to proceed with the work it shall give not less than 5 working days written notice to the Agency. The notice shall describe the remediation site, transmit environmental documents, and include a written proposal to perform the work. The written proposal shall contain a lump sum price or a time and materials estimate with a "not to exceed" contract amount. The Agency shall have the right to reject the proposal, and to avoid the reimbursement obligation, if it notifies the Developer within 4 working days of receipt of the notice that the cost of the work proposal is not reasonably comparable to what the Agency believes the work would cost if it is subject to competitive bidding requirements. The Agency shall have the burden of demonstrating what should be the reasonably comparable cost. Any payments of requisitions for reimbursement in excess of the contract price will not be made by the Agency unless it approves a change order prior to the time the work is performed. In the event the cost of the work will exceed $100,000 due to hidden conditions or other matters that the Developer did not know, or could not have known upon performing a reasonable investigation in connection with the Remedial Action, it shall have the options to (a) submit change orders to the Agency for its prior approval or (b) provide the Agency with notice, as described above in this paragraph, of its tender of the performance of the work back to the Agency. In the event the proposed work exceeds $100,000.00, for any work item or in the aggregate for each remediation site, the work shall be 9 subject to the Agency's competltive bidding requirements. Professional services, which are or would be subject to the Agency's competitive negotiation requirements, shall not be included within the project cost for the purpose of determining whether the work must be competitively bid. The Developer shall submit requisitions for payment, together with supporting documentation, pursuant to the requirements of the Agency. If the requisitions for payment meet the requirements of the Agency, the Agency shall approve and pay the Developer within 90 days of submission of the requisitions. 10. Because of an unforeseen title defect in a portion of Parcell, which defect was not shown on prior title reports and must be remedied prior to a conveyance to Developer, the parties have agreed to proceed to a closing on Tract A of Parcel 1 (more particularly described on Exhibit B hereto) on December 2, 1993. The Developer shall pay $1,520,400 (based upon the stipulated pro rata area of such Tract A) as the allocated portion of the purchase price of said Tract A, less the credits at closing that would otherwise apply to the closing of Parcell. The balance of the purchase pri.ce set forth i.n the Contract Documents, $1,279,600 shall be paid upon the closing the remaining portion of said Parcel 1, which shall occur 15 days (excluding weekends or holiday) after the Agency has obtained written confirmation of satisfactory cure of such title defect from Ticor Title Insurance Company, which the Agency agrees to diligently pursue and to complete not later than March 30, 1994. Except as provided herein, all of the other terms 10 and conditions of the Contract Documents applicable to the closing of Parcel 1 shall apply independently to the closing of Tract A and the balance of Parcell. 11. This agreement does not waive, and the parties specifically preserve, any common law, equitable or statutory claims they may have against third parties for equitable relief or damages concerning the environmental condition of the property. 12. The rights and responsibilities of the parties under this agreement shall survive closing, and the execution and delivery of any deeds. 13. The Contract Documents are hereby ratified and confirmed, and declared by the parties to be in full force and free from default. 14. The Agency's responsibilities under this agreement shall terminate either ( a) as to any phase of development, upon the issuance of a certificate of occupancy or completion for that phase; or, (b) upon the termination of the Development Agreement, which ever first occurs. IN WITNESS WHEREOF, the undersigned have caused this instrument to be executed as of the date first set forth above. ATTEST: MIAMI BEACH REDEVELOPMENT AGENCY By: By: STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) BEFORE ME, the undersigned authority duly authorized in the State and County aforesaid to take acknowledgements, personally 11 appeared , well known to me or who presented identification in the form of , 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 affixed my official seal, in the State and County aforesaid, on this ___ day of , 1993. Name: NOTARY PUBLIC, STATE OF FLORIDA AT LARGE MY Commission Expires: ATTEST: COBB PARTNERS SOUTH BEACH, LTD. By: VIKING VENTURES, INC. as its General Partner By: By: R. T. Brinkley, II, President (Corporate Seal) STATE OF FLORIDA SS: COUNTY OF DADE BEFORE ME, the undersigned authority duly authorized in the State and County aforesaid to take acknowledgements, personally appeared R. T. Brinkley, II, well known to me or who presented identification in the form of , the President 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 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. 12 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, in the State and County aforesaid, on this ___ day of , 1993. Name I NOTARY PUBLIC, STATE OF FLORIDA AT LARGE MY Commission Expires: BOO/egg 11/2./93 917genv3.agt fORM Ar~' ""A'.TD lEGALDEPT. \ /) By ,-/a~~--e Cj;;;::J tJi/I Date <J / J- S / (;J I 13 CITY OF,MiAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE ~IIAMI 8tACH FLORIDA 33139 COMMISSION \ \'? , ~,)tr'~ '~J;''' , V\ - "V \~;y .> \' \~",t ,i :J \" \ 1,.1"'1. yY' MEM6~A~~D(M NO. -:10'g-g:5 TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 OFFICE OF THE CITY MANAGER TO: Mayor Seymour Gelber and Members of the City Commission DATE: D~ce~er 15, 1993 FROM: Roger M. Carlto-/J.J , ~ City Manager ~~ SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION RATIFYING THE MIAMI BEACH REDEVELOPMENT AGENCY'S APPROVAL OF AN AMENDMENT TO THE SECOND EXTENSION AND CLARIFICATION AGREEMENT FOR THE COBB PROJECT. ADMINISTRATION RECOMMENDATION: The Administration reco~mends that the Mayor and City Commission ratify the Miami Beach Redevelopment Agency's action approving an amendment to the Second Extension and Clarification Agreement for the Cobb Project. ANALYSIS: This Amendment Agreement stipulates that the Agency shall be responsible for hazardous substances in excess of remedial actio~ levels and underground storage tanks which are or were located on the property prior to closing. The Agency and the Developer agreed to cooperate in scheduling and conducting any Remedial Action up to a cap of $100,000 per incidence. The principal criteria to be used by the parties in deciding whether Remedial Action shall be undertaken by the Developer are whether the Developer can perform the work expeditiously and at a cost that the Agency reasonab~e believes is comparable to the cost the Agency would incur if t~e work were subject to competitive bidding or competiti-:e negotiation. This amendment does not require the City to assume a greater ll~:t of liability than would be required by statute. The primar'';! purpose of this amendment was to establish a vehicle by which t:~-= clean-up process would be expedited and also allow the Agency t= remain in control of the procedure. Additionally, the Agreement enables a staged closing for Parce~ ~ consisting of Blocks 78 and 80. A closing for Block 80 will oc=.~ immediately upon execution of the attached resolution. Due t= J minor title defect on one parcel of Block 78, this closing will ce deferred until curative action has occurred. RMC/MD/svh 1 AGENDA ITEM R -1-=:-B DATE ----1 L -I S- q ~