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
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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
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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
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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.
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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
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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
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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
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(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
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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)
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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