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Home My WebLink About147-93 RDA Incomplete RESOLUTION NO. 147-93 A RESOLUTION OF THE MIAMI BEACH REDEVELOPMENT AGENCY APPROVING AN AMENDMENT TO SECOND EXTENSION AND CLARIFICATION AGREEMENT FOR THE COBB PROJECT AND AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE SAID AGREEMENT. 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 Developer and the Agency have concurred 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 Agency and the Developer. NOW, THEREFORE, BE IT DULY 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 the attached Agreement entitled, Amendment to Second Extension and Clarification Agreement and authorizes the Chairman and the Secretary to execu same on behalf of the Agency. PASSED and ADOPTED this 1993. day of ATTEST: ~~.,.J.. <L ~tN.-- SECRETARY jm:c:\wp51\data\cobb2examd.res FORM APPROVED REDEVELOPMENT AGENCY GENERAL COUNSEL :3i1~1 ~m<?/ , If) V' '. - llJ ' ~"" ~ ' ,\, . 1...(;'; !It r?' tI~;1:"V .r !,l t~'" .~ I;' t Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673-7193 Fax: (305) 673-7772 \)9 \/\ \'11\ . " ,. REDEVELOPMENT AGENCY MEMORANDUM NO. 93-38 REVISETl December 1, 1993 To.: Chairman and Members of the Redevelopmen Board From: Roger M. Carlton Executive Direc 0 SUBJECT: A RESOLUTION OP THE M.IAMI BEACH REDEVELOPMENT AGENCY APPROVING AN AMENDMENT TO SECOND EXTENSION AND CLARIPICATION AGREEMENT POR THE COBB PROJECT AND AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE SAID AGREEMENT. ADMINISTRATION RECOMMENDATION: The Administration recommends that the accompanying Resolution be approved authorizing the Chairman and Secretary to execute the attached 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 action levels and underground storage tanks which are or were located on the property prior to closing. The Agency and the Developer agree 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 reasonably believes is comparable to the cost the Agency would incur if the work were subject to competitive bidding or competitive negotiation. Additionally, the Agreement enables a staged closing for Parcel 1 consisting of Blocks 7S and SO. A closing for Block SO will occur immediately upon execution of the attached resolution. Due to a minor title defect on one parcel of Block 7S, this closing will be deferred until curative action has occurred. RMC/MD/svh S()UTIi ()()I~ l?ede'Vel()pment ()lstr1f:t t:1O' t:1:~l? l?ede'Vel()pment ()Istrld Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) &73-7193 Fax: (305) 673-7772 ~e REDEVELOPMENT AGENCY MEMORANDUM NO. 93-38 REVISED December 15, 1993 From: Chairman and Members of the Board of the Redevelopment Agency Roger M. Carl~.~ ~ Executive Direci9V~ To: SUBJECT: A RESOLUTION OF THE MIAMI BEACH REDEVELOPMENT AGENCY APPROVING AN AMENDMENT TO SECOND EXTENSION AND CLARIPlCATION AGREEMENT POR THE COBB PROJECT AND AUTHORIZING THE CHAIRMAN AND SECRETARY TO EXECUTE SAID AGREEMENT. ADMINISTRATION RECOMMENDATION: The Administration recommends that the accompanying Resolution be approved authorizing the Chairman and Secretary to execute the attached amendment to the Second Extension and Clarification Agraement for the Cobb Project. ANALYSIS: This Amendment Agreement stipulates that 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. The Agency and the Developer agree to cooperate in scheduling and conducting any Remedial Action up to a cost 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 reasonably believes is comparable to the cost the Agency would incur if the work were subject to competitive bidding or competitive negotiation. This amendment does not require the City to assume a greater limit of liability than would be required by statute. The primary purpose of this amendment was to establish a vehicle by which the clean-up process wourd be expedited and also allow th~ Agency to remain in control of the procedure. Additionally, the Agreement enables a staged closing for Parcel 1 consisting of Blocks 7S and SO. A closing for Block SO will occur immediately upon execution of the attached resolution. Due to a minor title defect on one parcel of Block 7S, this closing will be deferred until curative action has occurred. RMC/MD/svh S()l!TIi I)()I~ l?edevel()pment [)Istrl~t ~In' ~E~l? l?edevel()l)lllent [)lStr1d 1 , November, , AMBNDMBN'.r TO SECOND 15JL.~.sMSIOR lum This Agreement is entered into this 1993, by the Miami Beach Redevelopment Agency South Whereas, the ami Beach Redevelopment public agency organi Redevelopment Act of 19 (1985, as amended), whose is located at 1700 Conventio (Agency) is a the Community III, Florida Statutes rincipa1 place of business ive, Miami Beach, FL 33139J and, Whereas, Cobb Partners Sout: Beach, Ltd., is a Florida limited partnership, and the assignee d successor in interest to Cobb Partners Development, Inc., a address and principal place of located at 11098 Biscayne Boulevard, Suite 402, and, Whereas, parties to a Contract of Development Agreement, both dated 1989, a Contract Purchase and Sale Modification Ag and a Modification Cobb Development Agreement, dated October 9, 1989, Extension and Clarification Agreement, dated February 6, and a Second Extension a Clarification Agreement, dated June 2 (Contract which relate to the conveyance and deve1 property s described in Exhibit A (property) J and, Whereas, the sale and purchase agreement is scheduled to close imminent1YJ and, Whereas, the Agency previously 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, 1993 (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 legal responsibility 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 app1icab1erequ1atory 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, assessment, 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 requ~rements 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 conditionJ 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 limited 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 limitation, the accuracy or completeness of any such report or other information, its preparation, or any 5 information upon which it is based. 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 further remediation and monitoring is required, or an approved remediation plan has been implemented to completion1 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 within 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 perfoDl 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 perfoDled. 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 perfoDling 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 competitive bidding re~irements. Professional services, which are or would be subject to the Agency's competitive negotiation re~irements, shall not be included within the project cost for the purpose of determining whether the work must be competitively bid. The Developer shall submit re~isitions 'for payment, together with supporting documentation, pursuant to the re~irements of the Agency. If the re~isitions for payment meet the re~irements of the Agency, the Agency shall approve and pay the Developer within 90 days of submission of the re~isitions. 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 price set forth in 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 ~: ~: STATE OF FLORIDA ) ) 5S: 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 SOtr.rH 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 Expiresl ~~~13 t17geDv3.ogt FORMSPP VED REDEVEl AGENCY~ G~NSEl'.~ BYV~ /I j')q h~ Date I . 13 . 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