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HomeMy WebLinkAboutReso 2014-2353RESOLUTION NO. 2014 -_53 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE bHTIGATION DEVELOPMENT AGREEMENT BETWEEN THE SCHOOL BOARD OF MIAMI -DADE COUNTY AND PMG -S2 SUNNY ISLES, LLC, i\ SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT "A "; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY ATTORNEY AND THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the School Board of Miami -Dade County (the "School Board ") and the City of Sunny Isles Beach (the "City") entered into an Amended and Restated Interlocal Agreement for Public School Facility Planning pursuant to Resolution No. 2007 -1192 adopted on December 13`, 2007 to implement Public School Concurrency; and WHEREAS, the City approved a site plan application pursuant to Zoning Resolution No. 14 -Z -140 adopted on July 17th, 2014 for a development known as "Muse" (the "Project') consisting of a residential 48 -story tower with 68 dwelling units located at 17141 Collins Avenue: and WHEREAS, the Project was approved subject to compliance with Public School Concurrency requirements; and WHEREAS, the School Facility level of service may be satisfied by executing a binding Proportionate Share Mitigation Agreement (the "Agreement') between the School Board, PMG- S2 Sunny Isles, LLC (the "Applicant') and the City requiring the Applicant to provide mitigation proportionate to the demand for public school facilities created by the Project and requiring the City to withhold all building permits until the mitigation payments have been made by the Applicant. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approving the Proportionate Share Mitigation Agreement. The Proportionate Share Mitigation Agreement between the School Board of Miami -Dade County, PMG -S2 Sunny Isles, LLC and the City is hereby approved in substantially the same form as the attached Exhibit Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute the Agreement in substantially the same form as the attached Exhibit "A ". Section 3. Authorization of City Manager and Citv Attorney. The City Manager and City Attomev are authorized to do all things necessary to effectuate the terms of the Agreement. Approving Proportionate Share Mitigation Agreement Paee I of 2 Section 4. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 104"" day of r C. 'ATTEST- . Jane A. Hines,4vIMC, City Clerk APPROVED AS TO FORM AND J.(;GAL S{yFFICIENCY: Attorney Vote: S-D \-toyed by: CE QLkSt/ Seconded by: �1�►Y�Yy�I$�IOtJi(Q L� Al6jj Mayor Scholl (Yes) (No) Vice Mayor Aelion (Yes) _(No) Commissioner Gatto (Yes) _(No) Commissioner Goldman es) _(No) Commissioner Levin (Yes) _(No) Approving Proportionate Share Mitigation Agreement Pave 2 ot'2 This instrument prepared by and return to: Ana R. Craft, Esquire School Board Attorney's Office 1450 NtE 2nd Avenue, #430 Miami. FL 33132 PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT THIS PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT ("Agreement "), is made and entered this day of by and between THE SCHOOL BOARD OF NIIAi1il -DADS COUNTY, FLORIDA, a body corporate and political subdivision of the State of Florida, hereinafter referred to as "School Board" or "School District," whose address is 1450 NE 2 N Avenue, Miami, Florida 33132: CITY OF SUNNI' ISLES BEACH, a municipal corporation of the State of Florida, hereinafter referred to as "City," whose address is 1 5070 Collins Avenue, Sunny Isles Beach, Florida 331% and PMG -S2 SUNNI' ISLES, LLC, a Delaware Limited Liability Company, hereinafter referred to as "Applicant," whose address is 1441 Brickell Avenue, Suite 1510, 114iami, Florida 33131, collectively referred to herein as the "Parties." RECITALS: WHEREAS, the Applicant (also referred to herein as "Property Owner ") is the fee simple owner of that certain tract of land (Folio it 3 1 22 1 1 00401 1 0) located in the City, more particularly described on Exhibit "A ", attached hereto and incorporated herein (the "Property "). The location of the Property described in Exhibit "A" is SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Pagel of 26 Revised 12 -02 -2014 — Exhibit "A" further illustrated within a Sketch To Accompany A Legal Description, certified to the School Board, appearing in Exhibit "B ": and WHEREAS, the Applicant has submitted an application seeking approval to develop no more than 68 multifamily residential dwelling units on the Property (the "Development Proposal'): and WHEREAS, the School Board and the City entered into that certain Amended and Restated Interlocal Agreement for Public School Facility Planning in Miami -Dade County, dated December 12, 2007 (adopted and executed by the City on December 13, 2007) to implement public school concurrency and to coordinate the approval of residential development with the provision of adequate public school facilities ( "ILA "), incorporated herein by reference: and WHEREAS, the City Council passed and adopted Resolution No. 14 -Z -140 on July 17, 2014 (incorporated herein by reference), approving Applicant's Development Proposal, subject to conditions, one of which is Applicant's compliance with school concurrency requirements: and WHEREAS, the Parties agree that: (1) adequate School Facility Capacity is not available for three (3) of the elementary suidents generated by the proposed residential dwelling units, at the Level of Service Standard within the Concurrency Service Area in which the Development Proposal is located. to accommodate the anticipated number of public school students that the Development Proposal will generate: (2) the needed School Facility Capacity for the applicable Concurrency Service Area is not available in any contiguous Concurrency Service Areas within the same Geographic Area-, and (3) SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 2 of 26 Revised 12 -02 -2014 available School Facility Capacity will not be in place or under actual construction within three (3) years after the approval of the Development Proposal: and WHEREAS, the Parties agree that authorizing these new residential dwelling units will result in a failure of the Level of Service Standard for School Facility Capacity in the applicable Concurrency Service Area, or will exacerbate existing deficiencies in Level of Service Standards: and WHEREAS, the Parties agree that Public School Concurrency shall be satisfied by the Applicant's execution of this legally binding Agreement and full compliance therewith, to provide mitigation proportionate to the demand for Public School Facilities to be created by these new residential dwelling units: and WHEREAS, the Parties agree that the Applicant has selected as the Proportionate Share Mitigation option, the full capital cost of a public school project, comprised of one (1) elementary school classroom of twenty -two (22) student stations ( "Monetary Proportionate Share Mitigation "), which will be added to the first three (3) years of the School District's Facilities Work Program, as well as an additional Voluntary Contribution, as defined herein below: and WHEREAS, the Parties further agree that the Applicant shall pay the Monetary Proportionate Share Mitigation funding as further stipulated herein: and WHEREAS, The School Board of Miami -Dade County, Florida, has authorized the execution of this Agreement in accordance with Board Item F- , Board Action No. , at its meeting of , 20 : and SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse tSP3114053000892) Page 3 of 26 Revised 12 -02 -2014 WHEREAS, the Commission of the City of Sunny Isles Beach, at its meeting of 20, duly passed and adopted on that date, Resolution No. authorizing the appropriate City officials to enter into this Agreement: and WHEREAS, the Applicant has duly approved this Agreement, and represented to the School Board and to the City, and hereby confirms, that Kevin k4aloney, its President and sole manager, has been and is hereby filly authorized to execute this Agreement on behalf of Applicant, pursuant to written consent issued July 18, 2014. NOW. THEREFORE, in Consideration of the Sum of Ten Dollars (S 10.00), the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows: INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are hereby incorporated into this Agreement by this reference as if filly set forth herein. 2. DEFINITION OF NIATERIAL TERMS. Any terms that are not defined herein are defined as set forth in the ILA. 3. LEGALLY BINDING COMMITi\IENT. The Parties agree that this Agreement constitutes a legally binding commitment by the Applicant to provide Monetary Proportionate Share Nlitigation for the Development Proposal for the Property sought to be approved by the City. SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 4 of 26 Revised 12 -02 -2014 4. MONETARY PROPORTIONATE SHARE MITIGATION. The Parties agree that the amount of the Nlonetary Proportionate Share Mitigation shall be Four Hundred Ninety Seven Thousand One Hundred Fifty Six Dollars (5497,156.00). The Monetary Proportionate Share Mitigation funds shall be used by the School District to provide for the creation of twenty -two (22) elementary school student stations at the new K -8 (Northeast Miami -Dade Area) — Phase I Educational Facility (the "School Project`). It is the intent of the School District to locate the School Project within the City proper. Additionally, the Applicant is voluntarily contributing the value of three (3) elementary school seats in the amount of Sixty Seven Thousand Seven Hundred Ninety Four Dollars (567,794), as stipulated in Section 6(d) of this Agreement. Upon the full execution of this Agreement by all appropriate Parties and receipt of the Monetary Proportionate Share Mitigation payment. the School District shall issue a Finding of Available School Facility Capacity ( "Finding ") pursuant to the ILA. The duration and effect of this Finding shall be in accordance with the ILA. However, in no event shall this Finding, or any allocation of student seats based on this Finding (`School Concurrency Allocation "), continue to be effective if the Applicant fails to perform his/her /its obligations under this Agreement. Conversely, once Applicant has completely performed his /her /its obligations under this Agreement, Applicant shall be entitled to rely on the Finding and School Concurrency Allocation to the extent of the School Capacity provided by the Monetary Proportionate Share Mitigation. Delivery of the Monetary Proportionate Share Mitigation payment shall be made by the Applicant within thirty (30) calendar days following the full and proper execution of this Agreement (defined hereinafter as Effective Date), by wire transfer or any other method of payment SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page S of 26 Revised 12 -02 -2014 acceptable to the School Board's Office of Treasury Management. In the event Applicant fails to pay the Monetary Proportionate Share Mitigation Payment as provided for herein, the School District, at its sole option, may cancel this Agreement and may credit the reserved seats to the Concurrency Service Area from which they were reserved. Issuance of a Finding by the School District shall be a pre- condition to issuance of building permits by the City for the subject Development Proposal. 5. EDUCATIONAL FACILITIES IMPACT FEE CREDIT. As consideration for the Applicant's 1Monetary Proportionate Share Mitigation specified herein, and as firrther elaborated in Section 6(c) of this Agreement, the Parties agree that the School District shall provide a credit estimated at Two Hundred Twenty Four Thousand, Four Hundred Dollars (S224,400.00), toward any Educational Facilities Impact Fees imposed by Miami -Dade County ( "County ") ordinance for construction of the Development Proposal ( "Impact Fee Credit "). The final Impact Fee Credit amount shall be determined by the County, pursuant to the then current Miami -Dade County Educational Facilities Impact Fee Ordinance (Chapter 33K, of Mialni -Dade County Code of Ordinances). the Interlocal Agreement Between Dade County and The School Board of Dade County, Florida, relating to Educational Facilities Impact Fee Monies, and the Metropolitan Dade County Educational Facilities Impact Fee Administrative Procedures Manual, as each may have been amended or may be amended from time to time. The amount of the Impact Fee Credit will not include any administrative or other fees which the County may impose as part of its administrative process. 6. MITIGATION BANKING. The Applicant has selected the Monetary Proportionate Share Mitigation option, which will provide for the cost of construction by SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 6 of 26 ReAsed 12 -02 -2014 the School District of twenty -two (22) elementary school seats, resulting in nineteen (19) seats in excess of the three (3) seats needed to be mitigated by the Applicant. As such. the Applicant has the right to transfer the excess nineteen (19) seats ( "Capacity Credits`-) to future residential developments, as set forth in this Agreement. In order for the School District to manage and transfer Capacity Credits for the Applicant, a mitigation bank shall be established in connection with this Development Proposal (" Nlitigation Bank') for the School Project. The School District shall create and administer the Mitigation Bank as follows: a. Monetary Proportionate Share Dtitiaation Cost. The Monetary Proportionate Share Mitigation amount of Four Hundred Ninety Seven Thousand One Hundred Fifty Six Dollars (5497,156) is the cost of the Monetary Proportionate Share Mitigation option selected by the Applicant, and is derived by multiplying the total number of student stations to be constructed (22 seats), by the student station cost of 522,598.00, which is the construction cost projected by the Florida Department of Education to be in place at the time of construction of the School Project (October 2017) (i.e.22 student stations x S22,598.00 cost per station = S497.156.00). In this Agreement, "student station' and "seat" shall be used interchangeably unless otherwise specified. b. Number of Banked Seats. The number of Banked Seats shall be established by determining the excess number of school seats, if any, resulting from construction of the School Project (-'Banked Seats'), to wit: the number of seats to be constructed (22), less the number of seats needed to be mitigated SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 7 of 26 Revised 12 -02 -2014 (3), resulting in nineteen (19) Banked Seats for the subject Development Proposal (i.e. 22 seats constructed — 3 mitigated seats = 19 Banked Seats). In this Agreement, "Banked Seats" and "Capacity Credits" shall be used interchangeably unless otherwise specified. c. Estimated Educational Facilities Impact Fee Credits. Pursuant to the Miami -Dade County Educational Facilities Impact Fee Ordinance. the Applicant must pay Educational Facilities Impact Fee(s) (`Impact Fee ") prior to issuance of any residential building permit. However, since the Applicant is required to pay the Monetary Proportionate Share Mitigation payment to the School District prior to obtaining building permits, the School District shall issue the Impact Fee Credit to the Applicant, which the Applicant may present to the County in satisfaction (in whole or in part) of its Educational Facilities Impact Fee obligation. The amount of the estimated Impact Fee Credit shall be the result of multiplying 53,300.00 (the estimated Impact Fee per residential dwelling unit) by the number of approved units (68 multi - family residential dwelling units), resulting in an estimated Impact Fee Credit amount of S224,400.00 (i.e. $3300.00 estimated impact fee x 68 residential dwelling [nits = S224,400.00). The Impact Fee Credit shall not include any administrative or other fees. which the County may impose as part of its administrative process. The Parties understand and agree that the Impact Fee Credit stated herein shall be adjusted to reflect the actual amount assessed by the County for the subject Development Proposal. Adjustment to the Mitigation Banking Cost, as hereinafter defined, shall also be required SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 8 of 26 Revised 12 -02 -2014 inasmuch as any adjustment to the Impact Fee Credit will also affect the value of the Banked Seat(s) d. i•fitieation Banking Cost. The \litigation Banking Cost of S272.756.00 is the total combined value of the nineteen Banked Seats. which will be eligible and available for transferring Capacity Credits to future residential development applicants ('Ditigation Banking Cost'). The Mitigation Banking Cost is derived by subtracting the estimated Impact Fee Credit (S224,400.00) from the Monetary Proportionate Share Mitigation amount (S497,156.00), less the value of three (3) seats ($67,794), which amount is being voluntarily proffered by the Applicant over and above the three (3) mitigated seats, resulting in S204,962.00 (i.e. S497,156.00 - S224,400.00 — 67.794 = S204.962.00). e. Reimbursable Value of Banked Seats. At the time that the Monetary Proportionate Share Mitigation payment is made by the Applicant. and after clearance of all funds, the School District shall issue written confirmation to the Applicant validating the number of Banked Seats available for transfer. Capacity Credits may only be transferred to future residential development proposals within the same Concurrency Service Area or adjacent Concurrency Service Areas, and within the same Geographic Area. For purposes of crediting the Applicant for each Banked Seat. the estimated reimbursable value of each Banked Seat has been established at S9,316.00 ('Estimated Reimbursable Value "). This Estimated Reimbursable Value is obtained by dividing the Mitigation Banking Cost (5204,962.00), by the twenty-two (22) SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 9 of 26 Revised 12 -02 -2014 seats to be created as a result of School Project, resulting in an individual Estimated Reimbursable Value of S9,316.00 per Banked Seat (i.e. S204,962.00 divided by 22 seats = S9,316.00). This Estimated Reimbursable Value shall be adjusted to reflect actual total Educational Facilities Impact Fees assessed by the County, resulting in a final determination by the School District of the actual reimbursable value of each Banked Seat ("Final Reimbursable Value "). Applicant hereby authorizes the School District to enter into any required agreement with future developers who may desire to purchase Capacity Credits from the Mitigation Bank, under the terms and conditions set forth herein, and to effectuate the transfer of Capacity Credits accordingly. Payment by the School District to the Applicant for the Final Reimbursable Value of the Banked Seats purchased shall be made within thirty (30) days after the final amount of the Applicant's Impact Fee Credit has been determined, and a reconciliation of funds is completed by the School District. f Expiration of Capacity Credits. Capacity Credits may be purchased by future applicant(s) within six (6) years from the date the School Board authorized the execution of this Agreement; which in this instance, is hereby established as 20 and subject to expiration of timeframe set forth under Section 17 hereof. After 5:00 PM (Miami Time), 20, any remaining Capacity Credits created by the Monetary Proportionate Share Mitigation option shall be deemed SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 10 of 26 Revised 12 -02 -2014 expired, and any Banked Seat(s) not yet transferred will be returned to the Concurrency Service Area where the School Project was constructed g. Purchasing of Capacity Credits by Future Applicants. The School District agrees to make known to all future residential development applicants within the Concurrency Service Area or Adjacent Concurrency Service Areas within the same Geographic Area, the option to purchase Capacity Credits from this Mitigation Bank. Future applicants may purchase Capacity Credit(s) only if the Mitigation Bank(s) has sufficient number of available seats to provide for the entire school capacity deficiency. h. Prioritv of Capacity Credit Transfers. In the event multiple mitigation banks are created by other applicants, for the same Concurrency Service Area or Adjacent Concurrency Service Areas within the same Geographic Area. the Capacity Credits shall be made available for transfer to future applicants in the order in which each mitigation bank was created. i. Annual Reports. The School District will provide annual reports to the Applicant ( "Annual Reports "), containing the balance of Banked Seats remaining, if any, and Capacity Credit transfers, if any, prior to July I of each year. The School District shall charge an annual administrative fee as may be established in the Procedures Manual for Implementing the Amended and Restated Interlocal Agreement for Public School Facility Planning in Miami - Dade County. The annual administrative fee shall be paid by the Applicant to the School District prior to issuance of the Annual Report. Upon expiration SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 11 of 26 Revised 12 -02 -2014 or transfer of all Capacity Credits, the School District shall issue a final report to Applicant ( "Final Report'). 7. SCHOOL CAPACITY IMPROVEMENT. The School District agrees to apply the Monetary Proportionate Share Mitigation payment made by the Applicant toward the School Projects described under Section 4 of this Agreement. The School Project will include the Monetary Proportionate Share Mitigation, which will be reflected in the District's Facilities Work Program at the time of its next annual update following the execution of this Agreement and receipt of the Monetary Proportionate Share Mitigation payment as set forth herein. S. EFFECTIVE DATE. This Agreement shall take effect upon the last of the Parties signing this Agreement, but in no event later than 2015. Failure to deliver this Agreement to the School Board executed by the Applicant and the Citv by 20 may, in the sole discretion of the School District, result in the revocation of the Concurrence Determination issued by the School District on June 30, 2014, incorporated herein by reference. 9. TERM. This Agreement shall expire upon the Parties' completion of their performance of all obligations herein or within six (6) years from Effective Date, whichever comes first. 10. STATUTORY COMPLIANCE. The Parties agree that this Agreement satisfies the requirements for a binding Proportionate Share Mitigation agreement in Section 163.3130(6)(h)2, Florida Statutes and as provided for in the ILA. SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse tSP3114053000892) Page 12 of 26 Revised 12 -02 -2014 11. NOTICES AND DELIVERABLES. All notices or communications and deliverables under this Agreement by any Party to the others shall be sufficiently given or delivered if dispatched by (a) certified U.S. mail, postage pre- paid, return receipt requested, (b) hand delivery, (c) Federal Express or other comparable overnight mail service, (d) telephone facsimile transmission with transmission receipt, or (e) electronic mail to the following addresses; or as the same may be changed in writing from time to time. Whenever any of the Parties desires to give notice to the others, such notice must be in writing, addressed to the Party for whom it is intended at the place last specified. The place for giving of notice shall remain such until it is changed by written notice in compliance with the provisions of this paragraph. Until otherwise designated by amendment to this Agreement, the Parties designate the following as the respective places for giving notice (`Notice "): In the case of Notice or communication to the School Board: The School Board of Miami -Dade County, Florida c/o Superintendent of Schools 1450 N.E. Second Avenue, Room 912 Miami. Florida 33132 With copies to: Miami -Dade County Public Schools Facilities Planning Attn: Deputy Chief Facilities & Eco- Sustainability Officer 1450 N.E. Second Avenue, Room 525 Miami, Florida 33132 Ariiona dadeschools.net: and concurrencvt2,dadeschools.net The School Board of Miami -Dade County, Florida c/o School Board Attorney 1450 NE 2 Avenue, Suite 400 Miami, Florida 33132 Wal ter. Harvey ci.dadeschooIs.net Acraft7a dadeschools.net SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 13 of 26 Revised 12 -02 -2014 In the case of Notice or communication to the Applicant: Matthew S. Ellish Associate General Counsel Property Markets Group, Inc. 1441 Brickell Avenue, Suite 1510 Miami, Florida 33 13 1 Fax: E -mail: With copy to: Adrianne Hartman, Project Manager, Property Markets Group, 1441 Brickell Avenue._ Suite 1510 Miami, FL Fax: (305)917 -1070 Email: ahartman @propertymg.com, In the case of Notice or communication to the Citv: City of Sunny Isles Beach, Florida c/o City Manager 18070 Collins Avenue Sunny Isles Beach; FL 33160 Fax: 305.792.1731 E -mail: crusso @sibfl.net With a copy to: City Attorney 18070 Collins Avenue Sunny Isles Beach, FL 33160 Fax: 305.792.1702 E -mail: hottinot @sibfl.net For purposes of this Agreement, the Superintendent of Schools or his /her designee shall be the Party designated by the School Board to grant or deny any and all approvals required under this Agreement, including, without limitation, issuance of reports, as provided herein. SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 14 of 26 Revised 12 -02 -2014 Except as otherwise provided in this Agreement, any Notice or deliverable shall be deemed received only upon actual delivery at the address set forth above. Notices or deliverables delivered after 5:00 PM (at the place of delivery) or on a non - business day. shall be deemed received on the next business day. If any time for giving Notice contained in this Agreement would otherwise expire on a non - business day, the Notice period shall be extended to the next succeeding business day. "Day" as used in this Agreement shall be defined as calendar day, unless otherwise provided. Counsel for the School Board, counsel for the City and counsel for the Applicant may deliver Notice on behalf of the School Board. the City and the Applicant, respectively. Any Party or other person to whom Notices are to be sent or copied may notify the other Parties of any chanee in name or address to which Notices shall be sent by providing the same pursuant to this provision. 12. RELEASE. When all of the Parties' obligations set forth herein are fully paid and performed, each Party shall release all other Parties from this Agreement, and all Parties shall release all other Parties from any and all future claims, costs or liabilities arising out of the provision of Monetary Proportionate Share Mitigation in accordance with this Agreement. These releases shall be simultaneously exchanged and shall be recorded in the Official Records of Miami -Dade County, Florida, evidencing such performance. 13. VENUE; CHOICE OF LAW; ATTORNEY'S FEES. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida without regard to its conflicts of laws provisions. Any controversies or legal issues arising out of this Agreement, and any action involving the SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 15 of 26 Revised 12 -02 -2014 enforcement or interpretation of any rights hereunder, shall be submitted to the jurisdiction of the State Court of the 11`h Judicial Circuit, in and for, Miami -Dade County, Florida. The Parties agree that in the event of any dispute of whatever nature relating to this Agreement, venue shall be in Nliatni -Dade County, Florida. The Parties further agree that, in the event of a dispute among the Parties, each Party shall be responsible for its own attorney's fees and costs through all appeals. 14. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings contained in this Agreement are for convenience and reference only. They in no way define, describe, extend or limit the scope or intent of this Agreement. 15. NO WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing, and signed by the Party against whom it is asserted. Any such written waiver shall only be applicable to the specific instance to which it relates, and shall not be deemed to be a continuing or future waiver. The failure of any Party to insist upon strict performance of any of the covenants, provisions or conditions of this Agreement shall not be construed as waiving or relinquishing any such covenants, provisions or conditions, but the same shall continue and remain in fill force and effect. 16. EXHIBITS. All Exhibits attached hereto contain additional terms of this Agreement, and are incorporated herein by reference. 17. AMENDi)IENTS AND ENCUMBRANCE OF PROPORTIONATE SHARE MITIGATION PAYMENT. No modification, amendment, or alteration in the terms or conditions contained herein shall be effective, unless contained in a written document prepared, in recordable form. with the same formality as this SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 16 of 26 Revised 12 -02 -2014 Agreement and duly executed by all the Parties to this Agreement. Additionally; this Agreement may be modified only until the earliest of the following times: (a) issuance of the first principal building permit for the Development Project: or (b) the School District Encumbers (`Encumbers" shall mean monies committed by contract or purchase order in a manner that oblieates the School Board to expend the funded amount upon delivery of goods or the rendering of services provided by a vendor, supplier or contractor for the School Project) any portion of the Monetary Proportionate Share Nlitigation payment; or (c) six (6) months after the date that this Agreement is authorized by the School Board; or (d) the Applicant provides written notice to the Parties advising that the Mitigation Bank is to be established and the School District may immediately transfer Banked Seats to other residential development applicants, as set forth in Section 6 of this Agreement. No refunds shall be made thereafter. IS. COVENANT RUNNING WITH THE LAND. This Agreement shall constitute a covenant running with the land and shall be recorded by the School Board, at the Applicant's expense, in the public records of Miami -Dade County, Florida, and shall remain in full force and effect and be binding upon the undersigned Applicant. and its heirs. successors and assigns, until such time as the same expires in accordance with the provisions hereof, or is otherwise modified or released pursuant to an instrument executed on behalf of the Parties. 19. ASSIGNMENT. The Applicant may assign its rights, obligations and responsibilities under this Agreement to a third party purchaser of all or any part of fee simple title to the Property. Any such assignment shall be in writing and shall require the prior written consent of all of the Parties, such consent not to be unreasonably withheld. SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 17 of 26 Revised 12 -02 -2014 At the election of the School District, such consent may be conditioned upon the written agreement of the assignee to assume all of Applicant /Assignor's duties and obligations under this Agreement and to comply with conditions and procedures to aid in the monitoring and enforcement of the assignee's performance of the Monetary Proportionate Share Mitigation under this Agreement. The Assignor under such assignment shall famish the Parties with a copy of the duly executed assignment, in recordable form, within ten (10) days of the date of execution of same. The Parties further agree that an assignment of this Agreement shall only be permitted where (a) the Applicant/Assignor has mitigated for the public school impacts of the subject Property with Monetary Proportionate Share Mitigation payment having been made, (b) this Agreement is being assigned to the purchaser of the subject Property, and (c) the assigned Monetary Proportionate Share Mitigation continues to be used for the subject Property. 20. DEFAULT. If any Party fails to perform or observe any of the material terms and conditions of this Agreement for a period of thirty (30) calendar days after receipt of written notice of such default from another Party, the Party giving notice of default may terminate this Agreement by providing the parties with ten (10) days additional written notice. Failure of any Party to exercise its rights in the event of any breach by one or more other Parties shall not constitute a waiver of such rights. No Party shall be deemed to have waived any failure to perform by another Party unless such waiver is in writing and signed by the other Parties. Such waiver shall be limited to the terms specifically contained therein. 21. COUNTERPARTS. This Agreement may be executed in three (3) counterparts, each of which when executed and delivered shall be deemed to be an SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 18 of 26 Revised 12 -02 -2014 original; however, all such counterparts together shall constitute but one and the same instrument. Signature and acknowledgment pages, if any, may be detached from the counterparts and attached to a single copy of this document to physically form one document. The School Board shall be the last party to execute this Agreement. 22. RECORDING OF DOCUMENTS. The School District shall record this Agreement and any related documentation, including without limitation, Assignments, if any, and Releases, within thirty (30) days after proper execution thereof and receipt of the document and recordation costs, in the Public Records of Miami -Dade County, Florida. The Applicant shall pay all recordation costs to the School District. 23. SEVERABILITY. If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable provision will be stricken from the Agreement, and the balance of the Agreement will remain in full force and effect as long as doing so would not affect the overall purpose or intent of the Agreement. 24. WAIVER OF TRIAL BY JURY. THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR PARTIES WITH RESPECT TO ANY MATTER ARISING UNDER THIS AGREEMENT. 25. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this Agreement. SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (5P3114053000B92) Page 19 of 26 Revised 12 -02 -2014 26. MERGER CLAUSE. This Agreement and all Exhibits thereto set forth the entire agreement among the Parties, and it supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral. among the Parties. [SIGNATURE PAGE FOLLOWS] SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 20 of 26 Revised 12 -02 -2014 IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the respective dates- under each signature: APPLICANT /PROPERTY OWNER WITNESSES: PMG -S2 Sunny Isles LLC, a Delaware limited liability company 0 eal) Name: Kevin Maloney Title: President and sole manager NOTE: See Exhibit "C° For Joinder by Mortgagee SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 21 of 26 Revised 12 -02 -2014 APPLICANT'S ACKNOWLEDGMENT STATE OF FLORIDA ) ) SS: COUNTY OF ) Before me. a Notary Public, on the day of 201_, personally appeared as Authorized President and sole manager for who [ ] is personally known to me or [_] has produced as identification. and who acknowledged before me that he signed the above instrument with full authority as set forth therein, on behalf of the Applicant, [NOTARY SEAL[ Notary: Print Name: i\Iy Commission expires: SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 22 of 26 Revised 12 -02 -2014 WITNESSES: RECOMMENDED: Jaime G. Torrens Chief Facilities Officer SCHOOLBOARD THE SCHOOL BOARD OF MIAM1- DADE COUNTY, FLORIDA M3 Alberto M. Carvalho, Superintendent of Schools _day of 201. TO THE SCHOOL BOARD: Approved as to Form and legal sufficiency: School Board Attorney SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 23 of 26 Revised 12 -02 -2014 ACKNOWLEDGMENT STATE OF FLORIDA ) SS: COUNTY OF 1MIAN11 -DADS ) The foregoing instrument was acknowledged before me this day of 201_, by ALBERTO M. CARVALHO, as Superintendent of Schools, acting on behalf of THE SCHOOL BOARD OF MIAMI -DADE COUNTY; FLORIDA, a public body corporate and politic existing under the laws of the State of Florida; who personally appeared before me; and is [ x] personally known to me or [ ] produced as identification, and who further acknowledged that he signed the above instrument with full authority, as set forth therein, on behalf of The School Board of Miami -Dade County. Florida. ]NOTARY SEAL] Notary Print Name: My Commission expires: SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 24 of 26 Revised 12 -02 -2014 CITY OF SUNNY ISLES BEACH WITNESSES: CITY OF S '.'i' 'ISLES BEACH By: ATTEST: Cite Clerk C _2[ t}, !x-Hb I Mayor day of baoq&p 0t-., City [Manager day of .201 . APPROVED AS TO FORM AND LEGAL SUFFICIENCY: in City Attorney SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 25 of 26 Revised 12 -02 -2014 ACKNOWLEDGMENT STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of 201, by as Mayor and by as City Manager, acting on behalf of the City of Sunny Isles Beach, a Municipal Corporation; existing under the laws of the State of Florida. They personally appeared before me, and are [ x] personally known to me or [ ] produced as identification, , and who acknowledged that they signed the above instrument with full authority, as set forth therein, on behalf of City of Sunny Isles Beach, Florida. ]NOTARY SEAL] Notary: Print Name: jN]y Commission expires: SCHOOL BOARD /Proportionate Share Mitigation Agreement for Muse (SP3114053000892) Page 26 of 26 Revised 12 -02 -2014 Exhibit "A" Legal Description of Property The North 100 feet of the South 300 feet of Lot 2, of TATUM'S OCEAN PARK SUBDIVISION, according to the Plat thereof, as recorded in Plat Boot: 10, Page 64, of the Public Records of Miami -Dade County, Florida, I%'ing East of the East right -of -way line of State Road A -1 -A. And A parcel of land lying Easterly of and bounded on the Nest by said Lot 2 and being bounded on the North by the North line of the South 300 feet of said Lot 2 extended Easterly; bounded on the South by the South line of the Northerly 100 feet of the South 300 feet of sail Lot 2 extended Easterly; and bounded on the East by the Erosion Control Line of the Atlantic Ocean, according to the plat thereof, as recorded in Plat Book 134, at Page 47, of the Public Records of Miami -Dade County, Florida. —•r _ �- - !: +aril ; I �;,+ .1, : , • ri- I{ +',all I I :;I+ 1 !' . Il, ;V : iI f ! •a; IA ,�, III' I - _ 1 •� a; i ;!'i ;! _- [•i 1 , 'I 1 ilk III I IIli!' !11�' I' ll { ; � II ! ,{ 6t�il :Y� ! {iI I!:I 1 M _ e I� �M lO IH71H JITi1N' m.1 ti fvty OvOtf_ 3ivishj . - 3nN3AV _,_SNIT O0 EOyiSa;: FA I .�1 y,o i—AM it ii t 3 , 12/11/2014 Item Cwersheet City of Sunny Isles Beach c n 18070 Collins Avenue Sunny Isles Beach, Florida 33160 �oP (305) 947 -0606 City Hall o� Ft Op' a (305)949 -3113 Fax N Ot 5•�!� MEMORANDUM TO: The Honorable Mayor and City Commission VIA: Christopher J. Russo, City Manager FROM: Claudia Hasbun, Planning /Zoning Administrator DATE: 12/18/2014 Resolution approving Proportionate Share Mitigation RE: Agreement between the School Board, PMG -S2 Sunny Isles, LLC, and the City. RECOMMENDATION: It is recommended that the City Commission adopt the proposed Resolution approving Proportionate Share Mitigation Agreement between the School Board, PMG -S2 Sunny Isles, LLC, and the City. REASONS: By way of background, the School Board of Miami -Dade County (the "School Board ") and the City of Sunny Isles Beach (the "City ") entered into an Amended and Restated Interlocal Agreement for Public School Facility Planning pursuant to Resolution No. 2007 -1192 adopted on December 13th, 2007 to implement Public School Concurrency. City subsequently approved a site plan application pursuant to Zoning Resolution No. 14 -Z -140 adopted on July 17th, 2014 for a development known as "Muse" (the "Project ") consisting of a residential 48 -story tower with 68 dwelling units located at 17141 Collins Avenue. The Project was approved subject to compliance with Public School Concurrency requirements, which includes providing mitigation funds for public school facilities created by the Project. The Public School concurrency requirements may be satisfied by http / /sumyisie -ro agendas /CmerSheet.a px ?Item ID =1526 112 122112014 Item Cwersheet executing a binding Proportionate Share Mitigation Agreement (the "Agreement ") between the School Board, PMG -S2 Sunny Isles, LLC (the "Applicant') and the City requiring the Applicant to provide mitigation funds for public school facilities created by the Project and requiring the City to withhold all building permits until the mitigation payments have been made by the Applicant. Staff is requesting approval of the Agreement subject to continuing negotiations to ensure that the funds are allocated to school projects in the City. As presently drafted, Section 4 of the Agreement ( "monetary proportionate share mitigation ") indicates "It is the intent of the School District to locate the School Project within the City proper." This language is too broad. The City Manager and City Attorney are working diligently to clarify the language to confirm that the funds will be allocated for school projects in the City. ATTACHMENTS: Description Resolution Agreement Item Number: 101. httpJlsunnyisles. ov agendas ICMe Sheet.aspx ?Item ID= 1526 212