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HomeMy WebLinkAboutReso 2015-2416 RESOLUTION NO. 2015- 21-I I° A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT BETWEEN THE SCHOOL BOARD OF MIAMI-DADE COUNTY AND BEACH CLUB ACQUISITION, LLC. ALSO KNOWN AS TURNBERRY OCEAN CLUB PROJECT LOCATED AT 18501 COLLINS AVENUE, IN 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`h, 2007 to implement Public School Concurrency; and WHEREAS, the City approved a site plan application pursuant to Zoning Resolution No. 14-Z-143 adopted on July 31', 2014 for a development known as "Tumberry Ocean Colony" (the "Project") consisting of a residential 52-story tower with 154 dwelling units located at 18501 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, Beach Club Acquisition. 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, Beach Club Acquisition, LLC and the City is hereby approved in substantially the same form as the attached Exhibit "A". Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute the Agreement in substantially the same form as the attached Exhibit "A". Tumberry Proportionate Share Mitigation Agreement Page I of 2 Section 3. Authorization of City Manager and City Attorney. The City Manager and City Attorney are authorized to do all things necessary to effectuate the terms of the Agreement. Section 4. Effective Date. This Resolution shall become effective upon adoption. 0 PASSED AND ADOPTED this 21 t day of May 2015. George . . Scholl. Mayor r-' t 1 0 •v. r"a: ATTEST: . sue, _. '.. . . 1 111 ' 4 ',441S. `_7,JaneA. Hines, WIC. City Clerk - , )j APPROVED AS TO FORM AND Li A L SUFFICIENCY: /14k' H s Ottinot. City Attorney Moved by: COIni .- ' fTrrisa Seconded by: �nr tcti Noce LcW t/ Vote: 6- 0 Mayor Scholl V(Yes) (No) Vice Mayor Gatto ✓(Yes) (No) Commissioner Aelion /(Yes) (No) Commissioner Goldman ✓ Yes) (No) Commissioner Levin V (Yes) (No) Tumberry Proportionate share Mitigation Agreement Page 2 of 2 EXHIBIT 'A' This instrument prepared by Ma Rijo-Conde Miami-Dade County Public Schools 1450 NE 2Avenue,Room 525 Miami,Florida 33132 After Recording return to: Ana R.Craft,Esquire School Board Attorney's Office 1450 NE 2e°Avenue,#430 Miami,FL 33132 PUBLIC SCHOOL CONCURRENCY PROPORTIONAT • RE MITIGATION DEVELOPMENT AGRE Et ;3 ,, f,. THIS PUBLIC SCHOOL CONCURRENCY PRO ; o •TI NATE SHARE �. s MITIGATION DEVELOPMENT AGREEMEN r "Agr me"t"), is made and entered this day of , 2F%, by and between THE SCHOOL BOARD OF MIAMI-DADE Co e r`r�. ORIDA, a body corporate and political subdivision of the State of x,orida, herein: 'er referred to as "School Board" or "School District," whose adePas is t.t..,0 NE 2ND Avenue, Miami, Florida 33132; F., CITY OF SUNNY ISLE :'2i• , a municipal corporation of the State of Florida, J hereinafter referred i Wit.."Cit ' whose address is 18070 Collins Avenue, Sunny Isles Beach, ri 'da 3 60; and BEACH CLUB ACQUISITION, LLC, a Florida Limited Lia lit "% `lin'.any, hereinafter referred to as "Applicant,". whose address is 1.titt, West cOun Club Drive, 113th Floor, Aventura, FL 33180 , collectively referred to herein .'3 4! `Parties." RECITALS: WHEREAS, the Applicant (also referred to herein as "Property Owner") is the fee simple owner of that certain tract of land (Folio # 3122020030190) located in the City , more particularly described on 'xhibit "A,'j attached hereto and incorporated SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/142015 Page 1 of 22 herein by reference (the "Property") which includes the Legal Description and the location sketch of the Property certified to the School Board.; and WHEREAS, the Applicant has submitted an application seeking approval to develop no more than 154 residential dwelling units on the Property (the "Development Proposal"); and the School Board and the City entered int th rtain ',la ended and Restated Interlocal Agreement for Public School Facilirla P1a \ing in -Iiami-Dade County, dated December 12, 2007(adopted and execu ed by c „fit, n December 13, 2007) to implement public school concurrency nd tz,00rdinate the approval of jY? residential development with the provision o:ad-.ua public school facilities ("ILA"), incorporated herein by reference; and s!. WHEREAS, the City. '.unci pl_ es and adopted Resolution No. 14-Z-143 on J Sim July 31, 2014 (incorporated `':_fin by reference), approving Applicant's Development r;, Kx. Proposal, subject to cq e less, e of which is Applicant's compliance with school concurrency "iii -menti• and u' the Parties agree that: (1) adequate School Facility Capacity is not avail.b: for -even (7) of the elementary students generated by the proposed residential 2y. i dwelling snits, 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- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 2 of 22 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 .. ciencies in r,-„ Level of Service Standards; and K WHEREAS, the Parties agree that Public School Cop. urre' y static satisfied by the Applicant's execution of this legally bindin•. Agreed j n full compliance k a4. therewith, to provide mitigation proportionate to th dem.n for Public School Facilities t, to be created by these new residential dwellini" • s; WHEREAS, the School Bo,,", at its meet g of January 14, 2015 (Agenda Item ., J% F-2), authorized entering i. 6 a Put chool Concurrency Proportionate Share Mitigation Development Ag ="a Vent between the School Board and PMG-S2 SUNNY s,. ISLES, LLC, a Delaf S. item Liability Company, which agreement is effective February 24, 0 ' and `, incorporated herein by reference (and hereinafter defined as ' " 4� aa.,-- .... "PMG- 2 ' S, LLC Agreement"); and S.pz" ry -",,-tit; tt tt AS, as a part of the PMG-S2 SUNNY i Y ISLES, LLC Agreement, the Lj School Bard authorized the creation and establishment of the PMG-S2 SUNNY ISLES, LLC Mitigation Bank, hereinafter referred to as "Mitigation Bank" or "Mitigation Bank#2015-002"; and SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 3 of 22 WHEREAS, the Parties agree that the Applicant has selected as its Proportionate Share Mitigation option, the purchase of seven (7) banked seat ("Monetary Proportionate Share Mitigation") from Mitigation Bank 112015-002, subject to contingencies set forth below; and WHEREAS, the Parties further agree that the Applicant shall pay sr Monetary Proportionate Share Mitigation funds as further required herein; and .•r' WHEREAS, The School Board of Miami-Dade Coue , F1 'da, h authorized ``T' the execution of this Agreement in accordance with Board It, oard Action No. 4,' 117,499,at its meeting of April 15, 2015; and le WHEREAS, the City of Sunny Isles`C,M., a its meeting of May 21, , 2015, duly passed and adopted on that•4ate, Resolutiin No.r _ 1, authorizing the A appropriate City officials toe 'nto t gat: eement; and 'ty ,, WHEREAS, •e Applic:fiy� . duly approved this Agreement, and represented to fU the School Board and to, .T , and hereby confirms, that Jeffrey Soffer has been and is hereby . 4 orize.' o execute this Agreement on behalf of Applicant, pursuant to 4. writt '' •"'Y jt 1",tl'. February 23, 2015. i i ip, , THEREFORE, in Consideration of the Sum of Ten Dollars (S10.00), 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: o SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 4 of 22 K 1. INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are hereby incorporated into this Agreement by this reference as if fully set forth herein. 2. DEFINITION OF MATERIAL TERMS. Any terms that are not defined herein are defined as set forth in the ILA or in the PMG-S2 S 1 i fill LES, LLC Agreement. In the event of a conflict between the ILA, the PMG-sy SUN Y I.LES, ter 4 LLC Agreement and this Agreement, the ILA shall control. .a t Cs z„a 3. LEGALLY BINDING COMMITMEA'S`T. M1rti s agree that this Agreement constitutes a legally binding commi ent 184 the Applicant to provide N. Monetary Proportionate Share Mitigation fo le,F}ley opment Proposal for the Property 40,1 sought to be approved by the City. ` i"*41/4 4. MONETARY PRUPO' 519NATE SHARE MITIGATION. The Parties agree that the Applic.'14,. as elected to satisfy its Monetary Proportionate Share Mitigation requirement'' .+rthi ` greement through the purchase of available student stations fro , Mitig:Lion Bank ("Capacity Credits" or "Banked Seats") by the ,d 1 s Applicat an.'' .nsf- if thereto. The purchase price of the Banked Seat(s) has been es-.S ./shed a J3 w-nty Two Thousand Five Hundred Ninety Eight Dollars (S22,598) per scat. A"yt ``., the amount of the Monetary Proportionate Share Mitigation under this option shall be One Hundred Fifty Eight Thousand One Hundred Eighty Six Dollars ($158,186) (i.e. 7 seats x $22,598 purchase price of a Banked Seat = Monetary Proportionate Share Mitigation payment). The Monetary Proportionate Share Mitigation funds shall be used by the School District towards the creation of twenty-two (22) SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2 -5/14/2015 Page 5 of 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. To that end, the City and the Board shall collaborate on options that optimize available revenues, including but not limited to opportunities for colocation of student stations within community spaces pro ''ded by the ' City and subsequent joint use of facilities, and with the understanding tha'Arr" a_nding fie available in the adopted 5-year Capital Plan, which is appro imat- ,. S9.5 illion Dollars, shall be used within the City for that purpose. Ada). Iona , the •pplicant is c voluntarily contributing the value of seven (7) elemen O.ry sc '••5"itts in the amount of One Hundred Fifty Eight Thousand One Hundred ElEhty Si"II ollars (S153,186). A. Payment The Parties to this ee nt1 covenant and agree that the Applicant will make its : netary Prop rtionate Share Mitigation payment to i b the School Boar. vi hin fo'2e n (14) days after the Effective Date (as hereinafter define. ayment of the cost of the Banked Seats, in the amount t One Hundr,,..%. 'ight Thousand One Hundred Eighty Six Dollars '6), a`9 the voluntary contribution amount of One Hundred Fifty ;r 3 ig b�housand One Hundred Eighty Six Dollars ($158,186) shall be by wire Y:;, .kfer or any other method of payment acceptable to the School Board's „x} I r y ffice of Treasury Management ("Capacity Credits Purchase Funds"). The Monetary Proportionate Share Mitigation payment shall be non-refundable. B. Issuance of Finding: Upon the full execution of this Agreement by all appropriate Parties and receipt by the School District of the Capacity Credits SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 6 of 22 Purchase Funds, and transfer of Capacity Credits to the Applicant, 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 Ctncurrency Allocation"), continue to be effective if the Applicant fail—Q,e' rform his/her/its obligations under this Agreement. Converse , o Appl nt has completely performed his/her/its obligations uncle I its A eeme t, Applicant shall be entitled to rely on the Finding an.,,w wC Schoo rrs' t ency Allocation, . :. subject to the terms and conditions state herei 2 JIn the event Applicant fails As to pay the Monetary Proportionatra.�; t Ligation Payment as provided for herein, the School Distric -4 its sole oj.n, may cancel this Agreement and return the Capacity „ -dit 't a Mitigation Bank. Issuance of a Finding by the School Dist e h.- Lbe a p e-condition to issuance of building permits by the City for - subjec'i©8velopment Proposal. a 5. 8;. CA ' ONAL FACILITIES IMPACT FEE CREDIT. As A l \ `xv consid t:q. ' ..the Applicant's Monetary Proportionate Share Mitigation specified h-re't;,, a r ies agree that the School District shall provide a credit toward any r Educatio -1*- Facilities Impact Fee(s) ("Impact Fee") imposed by Miami-Dade County ("County") ordinance for construction of the Development Proposal ("Impact Fee Credit"). The estimated value of the Impact Fee Credit shall be One Hundred Fifty Eight Thousand One Hundred Eighty Six Dollars ($158,186), which is the result of multiplying Twenty Two Thousand Five Hundred Fifty Eight Dollars ($22,598) (the purchase price --. 4 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 7 of 22 of each Banked Seat, as established in Section 4 of this Agreement) by the number of seats purchased by the Applicant - seven (7), resulting in an estimated Impact Fee Credit amount of One Hundred Fifty Eight Thousand One Hundred Eighty Six Dollars ($158,186), (i.e. S22,598 purchase price of the Banked Seats x 7 purchased Banked Seat =$158,186). ° The final Impact Fee Credit amount shall be determined by .County, pu;suant N.4. arl to the then current Miami-Dade County Educational Facilities I. pact '°t Ordinance h Pcw (Chapter 33K, of Miami-Dade County Code of Ordinances)�e. y local Agreement Between Dade County and The School Board S`+ Col ty, lorida, relating to •r ski. Educational Facilities Impact Fee Moni- d and the i e ropolitan Dade County Educational Facilities Impact Fee Administra ••e ''kce tires Manual, as each may have been amended or may be amender +, •m time to `'me. The amount of the Impact Fee k. Credit will not include any at inistrativ`{Ya , ether fees which the County may impose as Ek -4, part of its administrative proce-, 44 6. EFFEC e TE. This Agreement shall take effect upon the last of the Partie f.;.I sreement, but in no event later than July 15, 2015 ("Effective s` Dat f.- 6j :j. Fat l;,,,- totdliver this Agreement to the School Board executed by the Applicant and thity e June 30, 2015 may, in the sole discretion of the School District, result in the revocation of the Concurrency Determination issued by the School District on June 30, 2014, incorporated herein by reference. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 8 of 22 7. 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. 8. STATUTORY COMPLIANCE. The Parties agree that this Agreement satisfies the requirements for a binding Proportionate Share Mitigation jgreement in Section 163.3180(6)(h)2, Florida Statutes and as provided for in the 1I1 . 9. NOTICES AND DELIVERABLES. A .v notic or communications and deliverables under this Agreeme t by a is 11/ the others shall be sufficiently given or delivered if dispatched by a) ems'€led U.S. mail, postage pre- paid, return receipt requested, (b) hand deliv: , Fe' eral Express or other comparable . 10;,_ overnight mail service, (d) telephone . imile trans Fission with transmission receipt, or (e) electronic mail to the followi a. + -sses, or as the same may be changed in writing - v Ry from time to time. Whene - an .f the Pirties desires to give notice to the others, such notice must be in writ;•g addres'; to the Party for whom it is intended at the place last specified. The .lace for`t'' in• '.f notice shall remain such until it is changed by written notice in c.Jla iase0 its e provisions of this paragraph. Until otherwise designated by ame.t`men'/ f t5Agreement, the Parties designate the following as the respective places lo giv. g notice("Notice"): In the case of Notice or communication to the School Board: The School Board of Miami-Dade County,Florida do Superintendent of Schools 1450 N.E. Second Avenue, Room 912 Miami, Florida 33132 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 9 of 22 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 Arijo(&,,dadeschools.net; and concurrencvadadeschools.net The School Board of Miami-Dade County, Florida t. oy;. do School Board Attorney 1450 NE 2 Avenue, Suite 400 `2%,q sr. Miami, Florida 33132 ,° Walter.Harvey ,dadeschools.net and Acraft(a,dadeschools.net eSr �f In the case of Notice or communica "oil to tli'e Apph ant: Mr. Jeffrey Soffer, Managing N mbe BEACH CLUB ACQ ,,` ION, L 18070 Collins Ave d Sunny Isles Bead_' for 14433160 m iaiL , - :co '4,', With a copy to• '- Mario A.`• `', sq., Tumberry Associates try P/Ge'eral ounsel - Special Projects .+t '°t 0 We ountry Club Drive,Tenth Floor • %"'`f..FL 33180 ---'51' �''wy,,' . mromine @tumberry.com ,�I ' In the case of Notice or communication to the City: 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 10 of 22 With a copy to: City Attorney 18070 Collins Avenue Sunny Isles Beach, FL 33160 Fax: 305.792.1702 E-mail: hottinot@isibfl.net ter, For purposes of this Agreement, the Superintendent of Schools or h. r desig ;: shall be the Party designated by the School Board to grant or .eny a and r approvals Fa required under this Agreement, including, without limitatio r,a a e of reports, as provided herein. efr Except as otherwise provided in this,..• greement, : y Notice or deliverable shall be deemed received only upon actu• '. t cry at the address set forth above. Notices or deliverables delivered after '00 ',M4 (at t 'place of delivery) or on a non-business day, r.. shall be deemed rec-'ved on ext business day. If any time for giving Notice r contained in this Agree! 't , Id otherwise expire on a non-business day, the Notice period shalt _ 4 ended 'o the next succeeding business day, "Day" as used in this Agre: e`er t.lflt;:defined as calendar day, unless otherwise provided. Counsel for the Scho:'; oard'counsel for the City and counsel for the Applicant may deliver Notice on behalf of e 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 change in name or address to which Notices shall be sent by providing the same pursuant to this provision. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 11 of 22 10. 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 ex . anged and shall be recorded in the Official Records of Miami-Dade County, Florid.,.=%'a-ncing such performance. 5� 11. VENUE; CHOICE OF LAW; ATTORNEY' E This Agreement shall be interpreted and construed in cc `.- ce th and governed by the 6 laws of the State of Florida without regard o its nflict`'.f laws provisions. Any controversies or legal issues arising out of thi'gr nt, and any action involving the enforcement or interpretation of Jits rights h-eunder, shall be submitted to the jurisdiction of the State Co tebf the ..racy.; Judicial Circuit, in and for, Miami-Dade 4 w County, Florida. The Parties .vs,„ that in the event of any dispute of whatever nature a. v' Yy relating to this Agree -one - shall be in Miami-Dade County, Florida. The Parties .. further agre in the vent of a dispute among the Parties, each Party shall be respon.,' or t own attorney's fees and costs through all appeals. 9 CAPTIONS AND PARAGRAPH HEADINGS. Captions and %lfe 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. 13. 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 12 of 22 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 full force . d effect. IP ii- vs 14. EXHIBITS. All Exhibits attached hereto contain add' 'onal terms e f this %y Agreement, and are incorporated herein by reference. , t t '4'i „ 15. AMENDMENTS. No modification, amen.'± it or alteration in the AN:, ,/ terms or conditions contained herein shall be eff five, ?3_less contained in a written N, document prepared, in recordable form, wit ewe am ®formality as this Agreement and P<,,, duly executed by all the Parties to thi ,., :reement. .9.ditionally, this Agreement may be modified only until the earliest o 4 e�i owing times: (a) issuance of the first principal '47, building permit for the Dey.i,p m it Proj• t; or(b) six (6) months after the date that this vii. Agreement is authoriz • by the 111•1 Board. y. 16. 0 VEN• NT RUNNING WITH THE LAND. This Agreement shall Aiewe constitu ; co%/an ning with the land and shall be recorded by the School Board, at -A ,TY th-4 ..lican 1 e pense, in the public records of Miami-Dade County, Florida, and shall remain '.t I 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. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 13 of 22 17. 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, subject to the terms and conditions contained herein. 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. At the election of the School District, such consent may be conditioned upon the written agreement of t Oa ee to ah. assume all of Applicant/Assignor's duties and obligations under is • eeme nd to comply with conditions and procedures to aid in the monito i • an enfor•`ment of the assignee's performance of the Monetary Proportio gee Sh / .. i ation under this Agreement. The Assignor under such assignment s 11 fu b the Parties with a copy of the duly executed assignment, in recordable-q, a ,-,}wt in ten (10) days of the date of execution of same. The Parties fun -":gree that N assignment of this Agreement shall a be permitted where (a) th- • .pie it/Assignor has mitigated for the public school ...,� impacts of the subject Pro.':,k, -th Mo -tary Proportionate Share Mitigation payment h4 having been made, (b1( Agrer%Ent is being assigned to the purchaser of the subject sop . Property, and .F ,the as ed a onetary Proportionate Share Mitigation continues to be q, used for t e'�ib, t p-rty. Purchased Capacity Credits may not be sold, transferred t % Fhi.. or t!„..-d in . -¢Ywa •ther than as provided for under this Section. Any sale, transfer or use t. 1 '?i of Purev,,,e•, apacity Credits in violation of this Agreement shall be deemed null and void. 18. 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 14 of 22 1 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 lit ited to the it terms specifically contained therein. „Lc;e!.<;� 4 19. COUNTERPARTS. This Agreement may be a ecutel.-' three (3) counterparts, each of which when executed and delivered ,� 1 .e deemed to be an original; however, all such counterparts together al . stiff e but one and the same instrument. Signature and acknowledgment urges, f any, ay be detached from the f ,a2., counterparts and attached to a single copy et t 1 H ument to physically form one document. The School Board shall e last party o execute this Agreement. it 91- a 20. RECORD1M , OI"a,,DOC 4ENTS AND FEES The School District shall record this Agre' ent and elated documentation, including without limitation, Assignments, if any, any,'ele tes, within thirty (30) days after proper execution thereof, yr in the Put LL,'e•. . • r Miami-Dade County, Florida. The Applicant shall pay all us` ✓,,, reco 4ation"k< is .)the School District. All duly executed documents and applicable fees ' u shall b :fig eliv: ed to the designated School District staff by the day specified herein. 21. 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 15 of 22 remain in full force and effect as long as doing so would not affect the overall purpose or intent of the Agreement. 22. 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 PAR'RIS WITH RESPECT TO ANY MATTER ARISING UNDER THIS AGREE 'JEN . ara 23. TIME IS OF THE ESSENCE. Time of a ess ce in the performance of this Agreement. /` 24. MERGER CLAUSE. This A• eem\ t and xhibits thereto set forth ex the entire agreement among the Parties, and PI. ' ":e all prior and contemporaneous negotiations, understandings and a d=ments, writt: 'or oral,among the Parties. 4, . if pn Y¢ k- 'ru... 46 y [SIGNATURE PAGE FOLLOWS] °•A�tea v. i S P SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 16 of 22 IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the respective dates under each signature: APPLICANT/PROPERTY OWNER WITNESSES: BEACH CLUB ACQUISITION, LLC, a Florida limited liability compan, By. y (} a) Name: Jeffrey Soifer, . 1,, Title: Managin.4 em.-r £ w. 1/4 c � (Note: Joinder by Mortgagee(s) duly executes 6'n. 3ta zed must be attached hereto.) -. i "t,.4 br 4/ , 4 rr 9 :n: .K%L �F { .b y SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 17 of 22 APPLICANT'S ACKNOWLEDGMENT STATE OF FLORIDA ) ) SS: COUNTY OF ) Before me, a Notary Public, on the day of . _,, 2015, personally appeared (write-in name of authorized representative(s) %, , who [ ) is personally known to t'' r has produced as identification, and fit. ac is•wle'tea.ged before me that he signed the above instrument with full auth¢ity set form therein, on behalf of the 31 Applicant, . . `3L a. mow. Notar y: NOTARY SEAL] d� Print Name: . < ;. My Commission expires: :j '1'1/4 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT if 2-5/I4/20I5 Page 18 of 22 SCHOOL BOARD THE SCHOOL BOARD OF MIAMI- DADE COUNTY,FLORIDA WITNESSES: 1' By: �' ' Y� al)_ Alberto M. Carve t' Superintenden.ofS ',ols s' Signature: "k . Print Name: Date: 'k. r� 1p z sy Signature: 4‘,. Print Name: A. 4 RECOMMENDED: TO THE SCHOOL BOARD: SA' Approved as to Form and legal sufficiency: a v Jaime G. oi-izT;tsw School Board Attorney Chief r e -r 0 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 19 of 22 ACKNOWLEDGMENT STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of 201_, by ALBERTO M. CARVALHO, as Supe ' e nt of Schools, acting on behalf of THE SCHOOL BOARD OF MIAMI ,AD CO • 'TY, FLORIDA, a public body corporate and politic existing under t a ff .of the'tate of Florida, who personally appeared before me, and is [ x] personal) know isjne or [ ] produced as identification, and who tg er a owle ged that he signed the above instrument with full authority, as set forth: , , on behalf of The School Board of Miami-Dade County, Florida. 3yk .P .yam 4y, I Ni ary- [NOTARY SEAL] <. Print N e: if,, My C mmission expires: d" '. y y. 4,; ], `y, /ldy.4 %. r Ilkw SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 20 of 22 CITY OF SUNNY ISLES BEACH WITNESSES: CITY OF SUNNY ISLES BEACH By it .ay a*‘ et %, Mayor H. day p , 201_ n%.ATTEST: *5\:- , City Manager , City Clerk f' q t.....4,) 1 day of , 201 . 'Y r ' rs y. APPROVED AS TO FORM AND LEGAL SUFFICIENCY: ? ..�N � By -; City Attorney SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 21 of 22 ACKNOWLEDGMENT STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this / day of , 201_, by :?w°? ,,, ayor and by as City pager, acti+2 on behalf of the City of Sunny Isles Beach, a Municipal Corporal' n, e ' ling user the laws of the State of Florida. They personally appeared before me, a d are ersonally known to me or [ ] produced a.4:'ienti catio , , and who acknowledged that they signed the above instrument with t rity, as set forth therein,on behalf of City of Sunny Isles Beach, Florid. r ?k a Y N Notary: [NOTARY SEAL] ': Print Name: My Commission expires: 4%4. e G lor :G.y� 1r Yi t' SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION- — BEACH CLUB ACQUISITION,LLC AGREEMENT—DRAFT#2-5/14/2015 Page 22 of 22 Exhibit "A" LEGAL DESCRIPTION: PARCEL 1: THE SOUTH 200 FEET OF TRACT L, "AMENDED PLAT NORTH BISCAYNE BEACH" ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 44, PAGE 42, AND THAT PARCEL OF LAND LYING EASTERLY OF AND BOUNDED ON THE WEST BY THE EAST LINE OF SAID SOUTH 200 FEET OF Tract 'L", AND BOUNDED ON THE NORTH BY THE EASTERLY PROLONGATION OF THE NORTH UNE OF SAID SOUTH 200 FEET OF TRACT 'L", AND BOUNDED ON THE SOUTH BY THE EASTERLY PROLONGATION OF THE SOUTH LINE OF SAID TRACT 'L", AND BOUNDED ON THE EAST BY THE EROSION CONTROL LINE OF THE ATLANTIC OCEAN, ACORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 134 AT PAGE 47 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, DESCRIBED AS FOLLOWS: BEGINNING AT THE S.W. CORNER OF SAID TRACT "L", OF "AMENDED PLAT NORTH BISCAYNE BEACH" ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 44, PAGE 42, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE NORTH 03'00'09" EAST, ALONG THE WESTERLY UNE OF SAID TRACT "L", FOR 201.17 FEET TO A POINT ON THE NORTH LINE, OF THE SOUTH 200 FEET OF SAID TRACT "L", THENCE NORTH 86'54'29" EAST, ALONG THE PREVIOUSLY DESCRIBED UNE, FOR 490.29 FEET; TO A POINT ON THE EROSION CONTROL LINE AS SHOWN ON "EROSION CONTROL UNE", ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 134, PAGE 47, OF THE PUBUC RECORDS OF MIAMI-DADE COUNTY, FLORIDA; THENCE SOUTH 02'08'23" EAST, ALONG THE PREVIOUSLY DESCRIBED LINE, FOR 200.07 FEET TO THE SOUTHERLY LINE OF SAID TRACT "L", THENCE SOUTH 85'54'29" WEST, ALONG THE SOUTH LINE OF SAID TRACT "L", FOR 508.31 FEET TO THE POINT OF BEGINNING. 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' f 5/15/2015 Item Coversheet I ,,sCity of Sunny Isles Beach vie • 'p';. ;, 18070 Collins Avenue ;_;r_fd 7 Sunny Isles Beach, Florida 33160 I\ ; a,,•'• c (305)947-0606 City Hall `n.::. p,ox w (305)949-3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission VIA: Christopher J. Russo, City Manager FROM: Claudia Hasbun, Planning and Zoning Administrator DATE: 5/21/2015 Resolution approving Proportionate Share Mitigation RE: Agreement between the School Board, Beach Club Acquisition, 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, Beach Club Acquisition, LLC, and the City. REASONS: Similarly to the approved School Board Concurrency Agreement under Resolution No. 2014-2353 adopted on December 18th, 2014 which the Commission approved for the Muse project, this agreement will allow the Public School concurrency requirements for the Turnberry Ocean Colony project to be satisfied. By executing a binding Proportionate Share Mitigation Agreement(the "Agreement") between the School Board, Beach Club Acquisition, LLC, 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. ATTACHMENTS: Description Resolution Mitigation Agreement Item Number: 10.F. htlpl/sunryisles.nov sagenda.ccmlagendaweb/CoverSheet.aspx?ItemID=1653 1/1