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Resolution 2021-31627 RESOLUTION NO. 2021-31627 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT ("AGREEMENT"), ATTACHED HERETO AS "EXHIBIT 1", BETWEEN THE CITY OF MIAMI BEACH ("CITY"), MIAMI-DADE COUNTY SCHOOL BOARD ("M-DCSB") AND NORTH BEACH TOWN CENTER DEVELOPMENT, LLC ("PROPERTY OWNER"), RELATING TO THE PROPERTY LOCATED AT 6961-6985 ABBOTT AVENUE, 300-326 71ST STREET, AND 6972 HARDING AVENUE (THE "PROPERTY"); WHICH AGREEMENT PROVIDES FOR THE PAYMENT OF MITIGATION TOWARD SCHOOL BOARD CONCURRENCY BY PROPERTY OWNER TO M-DCSB, ARISING OUT OF THE PROPERTY OWNER'S APPLICATION TO CONSTRUCT MULTIFAMILY RESIDENTIAL UNITS ON THE PROPERTY; AND WHICH AGREEMENT IS CONSISTENT WITH THE REQUIREMENTS OF THE AMENDED AND RESTATED INTERLOCAL AGREEMENT BETWEEN M-DCSB AND THE CITY, DATED DECEMBER 12, 2007 ("ILA"). WHEREAS, on February 13, 2008, and pursuant to Resolution No. 2008-26762, the Mayor and City Commission approved and authorized the Mayor to execute that certain Amended and Restated Interlocal Agreement, between the City and the Miami-Dade County School Board ("M-DCSB"), for Public School Facility Planning in Miami-Dade County, to implement public school concurrency and to coordinate the approval of residential development with the provision of adequate public school facilities ("ILA"); and WHEREAS, during review of an application for new construction, the City requires all applicants to comply with applicable school concurrency requirements associated with the project, in order to ensure that the intent of the ILA is adhered to by all developers and to ensure sufficient and proper educational facilities are provided for the City's residents; and WHEREAS, North Beach Town Center Development, LLC ("Property Owner") is the owner of a property at 6961-6985 Abbott Avenue, 300-326 71st Street, and 6972 Harding Avenue, Miami Beach (the "Property"); and WHEREAS, on November 3, 2020, the Property Owner obtained Design Review Board approval from the City of Miami Beach (File No. DRB 19-0462) to develop the Property, with 118 multifamily residential dwelling units; and WHEREAS, the Property currently holds 13 credits for existing units; accordingly, the net total of 105 residential units shall be counted for school concurrency calculation purposes; and WHEREAS, pursuant to the ILA, property owners are required to mitigate their impacts to senior high schools in order to proceed with development. In order to mitigate a particular development project's impact, a Proportionate Share Mitigation Agreement is required; and WHEREAS, the ILA requires that the M-DCSB, the City, and the Property Owner approve Page 1 of 2 the agreement; and WHEREAS, as required by the ILA, the Parties agree that the Property Owner has selected, as its Proportionate Share mitigation option, the purchase of three (3) banked seats ("Monetary Proportionate Share Mitigation") from Mitigation Bank #2016-004; and the Parties further agree that the Property Owner shall pay Monetary Proportionate Share Mitigation funds to satisfy its concurrency obligations; and WHEREAS, Public School Concurrency shall be satisfied by the Property Owner's execution and compliance with the attached Agreement, which Agreement ensures the Property Owner shall provide mitigation proportionate to the demand for public school facilities to be created by these new residential dwelling units; and WHEREAS, the Property Owner shall be required to comply with the Proportionate Share Mitigation requirements of the ILA; and WHEREAS, the Administration recommends authorizing the attached Agreement, in order to ensure compliance with the City's ILA with M-DCSB, and ensure that the Property Owner complies with school concurrency requirements; and NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, the Mayor and City Commission approve and authorize the City Manager to execute a Public School Concurrency Proportionate Share Mitigation Development Agreement ("Agreement"), attached hereto as "Exhibit 1", between the City of Miami Beach ("City"), Miami-Dade County School Board ("M-DCSB") and North Beach Town Center Development, LLC ("Property Owner"), relating to the property located at 6961-6985 Abbott Avenue, 300-326 71st Street, and 6972 Harding Avenue (the "Property"); which Agreement provides for the payment of mitigation toward School Board concurrency by Property Owner to M-DCSB, arising out of the Property Owner's application to construct multifamily residential units on the Property; and which Agreement is consistent with the requirements of the Amended and Restated Interlocal Agreement between M-DCSB and the City, dated December 12, 2007. h� PASSED AND ADOPTED this /7 day of { Rrcit- , 2021. ATTEST: „, Dan Gelber, Mayor Rafa I E. Granado, City Jerk ,s���� APPROVED AS TO FORM AND -�P•• • rLANGUAGE AND FOR EXECUTION t.IN[ORP OUTED` ' Z l • At); City Attorney Date T:\Agenda\2021\5_March 17\Planning\School Concurrnecy Mitigation-NB Town Center LLC 6961-6985 Abott-RESO.docx Page 2 of 2 Resolutions - C7 N MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Raul J.Aguila, Interim City Manager DATE: March 17, 2021 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT ("AGREEMENT"), ATTACHED HERETO AS "EXHIBIT 1", BETWEEN THE CITY OF MIAMI BEACH ("CITY"), MIAMI-DADE COUNTY SCHOOL BOARD (M-DCSB) AND THE FOLLOWING PROPERTY OWNER: NORTH BEACH TOWN CENTER DEVELOPMENT, LLC REFERRED TO AS "PROPERTY OWNER," 6961-6985 ABBOTT AVENUE, 300-326 71ST STREET, AND 6972 HARDING AVENUE (HEREINAFTER THE "PROPERTY"); WHICH AGREEMENT PROVIDES FOR THE PAYMENT OF MITIGATION TOWARD SCHOOL BOARD CONCURRENCY BY PROPERTY OWNERS TO M-DCS DUE TO THE PROPERTY OWNER'S APPLICATION TO CONSTRUCT MULTIFAMILY RESIDENTIAL UNITS ON THE PROPERTY; AND WHICH AGREEMENT IS CONSISTENT WITH THE REQUIREMENTS OF THE AMENDED AND RESTATED INTERLOCAL AGREEMENT (ILA) BETWEEN M-DCSB AND THE CITY, DATED DECEMBER 12, 2007. RECOMMENDATION The Administration recommends that the City Commission approve the Resolution. BACKGROUND/HISTORY In 2005, the Florida Legislature amended Chapters 163 and 1063, Florida Statutes, requiring school boards and local jurisdictions to adopt public school elements in their Comprehensive Plans and implement School Concurrency. On February 13, 2008, the City Commission approved Resolution No. 2008-26762, which authorized the City to enter into an Inter-local Agreement (ILA) in order to implement public school concurrency and to coordinate the approval of residential development with the provision of adequate public school facilities. On November 3, 2020 the Property Owner/Applicant, North Beach Town Center Development, LLC, obtained approval from the Design Review Board (DRB 19-0462) to develop the properties located at 409 71st Street, 6961-6985 Abbott Avenue, 300-326 71st Street, and Page 351 of 2284 6972 Harding Avenue. The project contains 118 multifamily residential dwelling units. Since the site has 13 credits for existing units, the net total is 105 residential units for school concurrency calculation purposes. ANALYSIS Upon performing a Concurrency Review for the proposed development, Miami-Dade County Public Schools (MDCPS) determined that the required public-school level of service would not be met, pursuant to the following findings: 1)Adequate school facility capacity is not available for three of the senior high school students anticipated to be generated by the proposed residential dwelling units, at the level of service standard within the applicable Concurrency Service Area. 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. 3) Available school facility capacity will not be in place or under actual construction within three years after the approval of the development proposal. Pursuant to the ILA, the property owners are required to mitigate their impacts to senior high schools in order to be able to proceed with the development. In order to mitigate the impact, a Proportionate Share Mitigation Agreement will be required. The ILA requires that the School Board, the City, and the Applicant approve the agreement. As required by the ILA, the Parties agree that the Applicant has selected as its Proportionate Share Mitigation option, the purchase of three (3) banked seats ("Monetary Proportionate Share Mitigation") from Mitigation Bank #2016-004; and the Parties further agree that the Applicant shall pay the Monetary Proportionate Share Mitigation funds. SUPPORTING SURVEY DATA Managing Development Process CONCLUSION The Administration recommends that the City Commission approve the Resolution. Applicable Area North Beach Is this a "Residents Right Does this item utilize G.O. to Know" item. pursuant to Bond Funds? City Code Section 2-14? Yes No Legislative Tracking Planning Page 352 of 2284 ATTACHMENTS: Description ❑ Form Approved RESO ❑ Final Agreement - FA Page 353 of 2284 This instrument prepared by Nathaly Simon, Miami-Dade County Public Schools 1450 NE 2nd Avenue,Room 525 Miami,FL 33132 After Recording return to: Ana R.Craft,Esquire School Board Attorney's Office 1450 NE 2"d Avenue,Room 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 , 2021, by and between THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a body corporate and political, existing under the laws of the State of Florida, hereinafter referred to as "School Board" or "School District," whose address is 1450 NE Second Avenue,Miami,Florida 33132; CITY OF MIAMI BEACH,a municipal corporation of the State of Florida,hereinafter referred to as"City",whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139; and NORTH BEACH TOWN CENTER DEVELOPMENT, LLC, a Delaware limited liability company, authorized to transact business in the State of Florida, hereinafter referred to collectively as "Applicant", "Developer", or "Property Owner", whose address is 20533 Biscayne Boulevard, Suite #372, Miami, Florida 33180; The School Board, City and Applicant are collectively referred to in this agreement 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 (consisting of, collectively, folio #s 0232110020890, SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Page I of 21 Page 356 of 2284 0232110020880, 0232110020870, 0232110020920, 0232110020860, 0232110020850, 0232110020930) located in the City of Miami Beach, as more particularly described on Exhibit "A" (the "Property"), and as further illustrated within a Sketch To Accompany A Legal Description, certified to the School Board (Exhibit "B"), with both Exhibits attached hereto and incorporated herein; and WHEREAS, on November 03, 2020, the Property Owner obtained Design Review Board approval from the City of Miami Beach(File No. DRB 19-0462)to develop the Property,with 118 multifamily residential dwelling units The site has 13 credits for existing units,thus the net total is 105 residential units for school concurrency determination purposes; 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 February 13,2008),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 Applicant has obtained Design Review Board approval from the City of Miami Beach (File No. DRB 19-0462), incorporated herein by reference, which requires School Facility Capacity availability for each student generated by the Development Proposal at each of the three school levels(i.e. elementary, middle and senior high school); and WHEREAS, the Parties agree that: (1) adequate School Facility Capacity is not available for three(3)senior high students 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/I S/21 Pagc 2 of 21 Page 357 of 2284 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) 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 School Board, at its meeting of March 9, 2016 (Agenda Item F-1), authorized entering into a Public School Concurrency Proportionate Share Mitigation Development Agreement between the School Board, the City of Miami Beach and 3425 Collins, LLC, a Delaware Limited Liability Company (hereinafter referred to as "3425 Collins"), which agreement is incorporated herein by reference(the"3425 Collins Agreement"); and WHEREAS, as a part of the 3425 Collins Agreement, the School Board authorized the creation and establishment of the 3425 Collins Mitigation Bank, hereinafter referred to as "Mitigation Bank"or"Mitigation Bank#2016-004"; and SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 3 of 21 Page 358 of 2284 WHEREAS, the Parties agree that the Applicant has selected as its Proportionate Share Mitigation option, the purchase of three (3) banked seats ("Monetary Proportionate Share Mitigation") from Mitigation Bank#2016-004, subject to contingencies set forth below; and WHEREAS, the Parties further agree that the Applicant shall pay the Monetary Proportionate Share Mitigation funds as further required 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 , 2021; and WHEREAS,the City of Miami Beach,at its meeting of ,2021,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 Aria Mehrabi,Manager of PSC Oliveira,LLC, a Nevada limited liability company, acting as the Manager for North Beach Town Center Development, LLC,authorized to transact business in the State of Florida, has been and is hereby fully authorized to execute this Agreement on behalf of the Applicant. NOW, THEREFORE, in Consideration of the Sum of Ten Dollars ($10.00), the mutual covenants contained herein,and other good and valuable consideration,the receipt and sufficiency SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC- FINAL 2/18/21 Page 4 of 21 Page 359 of 2284 of which are hereby acknowledged,the Parties hereto,intending to be legally bound,hereby agree as follows: I. 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 3425 Collins Agreement. In the event of a conflict between the ILA, the 3425 Collins Agreement and this Agreement,the ILA shall control. 3. LEGALLY BINDING COMMITMENT. The Parties agree that this Agreement constitutes a legally binding commitment by the Applicant to provide Monetary Proportionate Share Mitigation for the Development Proposal for the Property sought to be approved by the Applicant. 4. MONETARY PROPORTIONATE SHARE MITIGATION. The Parties agree that the Applicant has elected to satisfy its Monetary Proportionate Share Mitigation requirement under this Agreement through the purchase of available student stations from the Mitigation Bank ("Capacity Credits" or "Banked Seats") by the Applicant and transfer thereto. The purchase price of the Banked Seat(s) has been established at Thirty-Three Thousand Four Hundred Ninety- Five Dollars ($33,356) per seat. As such, the amount of the Monetary Proportionate Share Mitigation under this option shall be One Hundred Thousand Sixty Eight Dollars($100,068) (i.e. 3 seats x $33,356 purchase price of a Banked Seat = Monetary Proportionate Share Mitigation payment of$100,068). A. Payment: The Parties to this Agreement covenant and agree that the Applicant will make its Monetary Proportionate Share Mitigation payment to the School Board within SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 5 of 21 Page 360 of 2284 thirty (30) calendar days following the full and proper execution of this Agreement, unless otherwise extended at the sole and absolute discretion of the School Board or designee (defined hereinafter as Effective Date). Payment of the cost of the Banked Seats, in the amount of One Hundred Thousand Sixty Eight Dollars ($100,068), shall be by cashier check, wire transfer or any other method of payment acceptable to the School Board's Office of Treasury Management ("Capacity Credits Purchase Funds"). The Monetary Proportionate Share Mitigation payment shall be non- refundable after issuance of the Finding,as defined under Section 4B hereof. 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 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 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, subject to the terms and conditions stated therein. 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 return the Capacity Credit to the Mitigation Bank. Issuance of a Finding by the School District shall be a pre-condition SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 6 of 21 Page 361 of 2284 to issuance of building permits by the City for the subject Development Proposal. Therefore, the Applicant must obtain the Finding prior to building permit approval. C. Educational Facilities Impact Fee Credit. As consideration for the Applicant's Monetary Proportionate Share Mitigation specified herein, the Parties agree that the School District shall provide a credit toward any Educational Facilities Impact Fee(s) ("Impact Fee(s)") imposed by Miami-Dade County Ordinance for construction of the Development Proposal ('`Impact Fee Credit"). The Impact Fee Credit for this Development Proposal has been estimated at a not-to-exceed amount of Twenty Three Thousand Eight Hundred Twenty Three Dollars ($23,823),derived by subtracting the cost of the three banked seats ($100,068), less the Reimbursable Value to be paid to the owner of Bank #2016-004 for the sale of three banked seats ($25,415 x 3 = $76,245), resulting in $100,068 - $76,245 = $23,823. The final Impact Fee Credit amount shall be determined after the County provides the actual Impact Fee amount, pursuant to the then current Miami-Dade County Educational Facilities Impact Fee Ordinance(Chapter 33K, of Miami-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. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 7 of 21 Page 362 of 2284 5. EFFECTIVE DATE. This Agreement shall take effect upon the last of the Parties signing this Agreement, but in no event later than April 30, 2021 ("Effective Date"). Failure to deliver this Agreement to the School Board executed by the Applicant by March 12, 2021 and by the City by March 31, 2021, may, in the sole discretion of the School District, result in the revocation of the Concurrency Determination issued by the School District on July 28,2020,incorporated herein by reference. 6. TERM.This Agreement shall expire upon the Parties' completion of their performance of all obligations herein or within six(6)years from the Effective Date,whichever comes first. 7. STATUTORY COMPLIANCE. The Parties agree that this Agreement satisfies the requirements for a binding Proportionate Share Mitigation agreement in Section 163.3180(6)(h)2, Florida Statutes and as provided for in the ILA. 8. NOTICES AND GENERAL CONDITIONS. A. All notices or communications and deliverables under this Agreement by any Party to the others ("Notice") 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 8 of 21 Page 363 of 2284 designated by amendment to this Agreement, the Parties designate the following as the respective places for giving 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 NE Second Avenue, Room 912 Miami, Florida 33132 With copies to: Miami-Dade County Public Schools Facilities Planning Attn: Eco-Sustainability Officer 1450 NE 2 Avenue, Room 525 Miami, Florida 33132 NSimonl@dadeschools.net; and concurrency@dadeschools.net The School Board of Miami-Dade County, Florida c/o School Board Attorney 1450 NE 2 Avenue, Suite 400 Miami, Florida 33132 Walter.Harvey(adadeschools.net and Acraft@dadeschools.net In the case of Notice or communication to the Applicant: North Beach Town Center Development, LLC Attn: Aria Mehrabi,Manager 20533 Biscayne Blvd., #372 Miami, Florida 33189 Phone: (305) 704-7592 aria@pacificstarcapital.com With copy to: Mr. Ben Siegler Pacific Star Capital 404 Washington Avenue, Suite#750 Miami Beach, Florida 33139 Phone: (786) 574-4761 Cellular: (262)271-0932 BStiglera,pacificstarcapital.com SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Page 9 of 21 Page 364 of 2284 In the case of Notice or communication to the City: Michael Belush, AICP, Principal Planner Planning Department, City of Miami Beach 1700 Convention Center Dr., Miami Beach, FL 33139 Phone: (305) 673-7000 Email: michaelbelush(a;miamibeachfl.gov With a copy to: Raul Aguila,City Attorney Office of the City Attorney 1700 Convention Center Dr.,Miami Beach, FL 33139 RaulAgpila@miamibeachfl.gov B 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 and Releases,and placing the Applicant in default, as provided herein. C. 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 change in name or address to which Notices shall be sent by providing the same pursuant to this provision. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Page 10 of 21 Page 365 of 2284 9. 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. 10. 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 taws' provisions.Any controversies or legal issues arising out of this Agreement, and any action involving the enforcement or interpretation of any rights hereunder, shall be submitted to the jurisdiction of the State Court of the 11th 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 Miami-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. 11. 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. 12. 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, SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 11 of 21 Page 366 of 2284 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 and effect. 13. EXHIBITS. All Exhibits attached hereto contain additional terms of this Agreement, and are incorporated herein by reference. 14. AMENDMENTS. 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 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)six(6) months after the date that this Agreement is authorized by the School Board. 15. 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. 16. 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 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Page 12 of 21 Page 367 of 2284 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 furnish 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, and (b) this Agreement is being assigned to the purchaser of the subject Property. Purchased Capacity Credits may not be sold,transferred or used in any way other than as provided for under this Section.Any sale,transfer or use of Purchased Capacity Credits in violation of this Agreement shall be deemed null and void. I7. DEFAULT. If any Party fails to perform or observe any of the material terms and conditions of this Agreement (except for failure to pay the Proportionate Share Mitigation Payment as set forth under Section 4 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. Notwithstanding the foregoing, the Parties further agree that in the event the Applicant does not make the Proportionate Share Mitigation Payment via a Cashier's Check, or by wire transfer or SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 13 of 21 Page 368 of 2284 any other method of payment acceptable to the School Board's Office of Treasury Management within the established period, as detailed above, the Applicant must within five (5)business days of written notice of demand from the School Board make such payment.In the event the Developer still fails to make payment within the five (5) business days to the School District as prescribed above,the following shall occur: (1) the Finding shall not be issued by the School District and the City shall be so notified so that no building permits may be issued; (2) if the School District had previously included the School Project in the District's Capital Plan, the School Project will be placed on hold and/or removed from the District's Capital Plan until the total Monetary Proportionate Share Mitigation payment is received;(3)the School District,at its sole option,may cancel this Agreement and credit the reserved seats to the Concurrency Service Area from which they were reserved; and (4) in order for the development to proceed, the Local Government will need to submit a new application to the School District for school concurrency determination. 18. COUNTERPARTS.This Agreement may be executed in three(3)counterparts,each of which when executed and delivered shall be deemed to be an 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. 19. RECORDING OF DOCUMENTS AND FEES. 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, in the Public Records of Miami- Dade County, Florida. The Applicant shall pay all recordation costs to the School District. SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC- FINAL 2/18/21 Page 14 of 21 Page 369 of 2284 20. 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. 21. 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. 22. TIME IS OF THE ESSENCE. Time is of the essence in the performance of this Agreement. 23. 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. 24. PUBLIC RECORDS LAWS. This Agreement shall be subject to Florida's Public Records Laws, Chapter 119, Florida Statutes. The Parties understand the broad nature of these laws and agree to comply with Florida's Public Records Laws and laws relating to records retention. The Parties acknowledge and accept the authority of the School Board and the City to request and authorize audits, inspections,and reviews,including,but not limited to,the authority to access the Applicant's records, its/their legal representatives' and contractors' records with respect to this Agreement and the obligation of the Applicant to retain and to make those records available upon request, and in accordance with all applicable laws. Applicant shall keep records to show its/their compliance with this Agreement. In addition, Applicant's contractors and subcontractors must make available, upon School Board's and City's request, any books, documents, papers and SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 15 of 21 Page 370 of 2284 records which are directly pertinent to this specific Agreement for the purpose of making audit, examination, excerpts,and transcriptions. The Applicant, its contractors and sub-contractors shall (i) retain all records for five (5) years after the Effective Date of this Agreement;and(ii)the School Board and the City shall retain records for five(5)years after the expiration, early termination or cancellation of this Agreement. The Applicant shall incorporate this Section 24 into every contract that it enters into relating to the subject Property. IF THE APPLICANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, AS TO ITS DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 995-1128, prr@dadeschools.net, and 1450 NE Second Avenue, Miami, Florida 33132. [INDIVIDUAL SIGNATURE PAGES FOLLOW] SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 16 of 21 Page 371 of 2284 IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the respective dates under each signature: APPLICANT/PROPERTY OWNER WITNESSES: NORTH BEACH TOWN CENTER DEVELOPMENT,LLC, a Delaware limited liability company By: PSC Oliveira, LLC, a Nevada limited liability Print Name: company, its Manager By: Print Name: Aria Mehrabi, its Manager APPLICANT'S ACKNOWLEDGMENT STATE OF FLORIDA ) ) SS: COUNTY OF ) Before me, a Notary Public, on the _ day of , 2021, personally appeared,by means of [ ]physical presence or[ ]online notarization,Aria Mehrabi,as Manager of PSC Oliveira, LLC, a Nevada limited liability company, as Manager of North Beach Town Center Development,LLC,a Delaware limited liability company,who [ ] is/are personally known to me or[ ] has/have produced as identification, and who acknowledged before me that they signed the above instrument with full authority as set forth therein,on behalf of Applicant. Notary: [NOTARY SEAL] Print Name: My Commission expires: SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 17 of 21 Page 372 of 2284 SCHOOL BOARD Signed, sealed and delivered THE SCHOOL BOARD OF MIAMI-DADE in the presence of: COUNTY, FLORIDA, a body corporate and politic existing under the laws of the State of Florida Print Name: By: Name: Alberto M. Carvalho Print Name: Title: Superintendent of Schools Date: Recommended by: Name: Raul F. Perez Title: Chief Design and Construction Officer Date: Approved as to Risk Management Issues: By: Risk& Benefits Management Officer Date: Approved as to Treasury Management Issues: By: Treasurer Date: To the School Board: Approved as to form and legal sufficiency Name: Ana R. Craft Assistant School Board Attorney Date: SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Page 18 of 21 Page 373 of 2284 ACKNOWLEDGMENT STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2021,by means of [ ]physical presence or[ ]online notarization, ALBERTO M. CARVALHO, Superintendent of Schools, acting on behalf of THE SCHOOL BOARD OF MIAMI-DADE COUNTY,FLORIDA,a body corporate and politic existing under the laws of the State of Florida, who personally appeared before me, and is [ ] 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: [NOTARY SEAL] Print Name: My Commission expires: SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 19 of 21 Page 374 of 2284 CITY OF MIAMI BEACH: WITNESSES: City of Miami Beach: By: , Mayor day of , 2021 ATTEST: Clerk By: Planning Director ATTEST APPROVED AS TO FORM AND LANGUAGE AND FOR EXECUTION: By: City Attorney Date: 3 _ ° - Z 1 SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 Pagc 20 of 21 Page 375 of 2284 • ACKNOWLEDGMENT STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2021, by [ ] physical presence or [ ] by online notarization, by as Mayor, acting on behalf of City of Miami Beach,a Municipal Corporation,existing under the laws of the State of Florida. He/she personally appeared before me, and is [ ] personally known to me or[ ] produced as identification,,and who acknowledged that he/she signed the above instrument with full authority, as set forth therein,on behalf of City of Miami Beach, Florida. Notary: [NOTARY SEAL] Print Name: My Commission expires: SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT NORTH BEACH TOWN CENTER DEVELOPMENT,LLC— FINAL 2/18/21 ?ago 21 of 21 Page 376 of 2284 EXHIBIT "A" TO PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT AMONG THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FL; CITY OF MIAMI BEACH; NORTH BEACH TOWN CENTER DEVELOPMENT, LLC Legal Description TRACT 2: LOTS 1,3, 4, 5, 16, 17, and 18, BLOCK 12 NORMANDY BEACH SOUTH, according to the Plat thereof, as recorded in Plat Book 21, Page 54, Public Records of Miami-Dade County, Florida. Page 377 of 2284 EXHIBIT "B" TO PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION DEVELOPMENT AGREEMENT AMONG THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FL; CITY OF MIAMI BEACH; NORTH BEACH TOWN CENTER DEVELOPMENT, LLC SURVEY MAP OF BOUNDARY SURVEY , . tt:\ W...P.6.....1............. , f_.--.7.-_-= 11111 I Lr 'ur.... r�..�ss8'' - ...i' •-" . . . :.' . ' 4.i., ^,, ,, ' ; Fi 1 .{Y• -- ...•.- ._-...� "- 13... •-•' c.. '�•+• ... �:. z--: It a _ /3Wraw , %..art i7.' ....n- -_-4-:-&-.--...:::_ ---•--7-:=1-•77-:::-.14-- _- 1 qac -°" _—�_ -1.------v---_:_-------' s ` • �T{ I'. -___' .-_..-.... - - t. VA.! pi ��5.�•�T-- F �`�, fit. i= ^M I •ntr '''" '' r:::: Q.-Li I Page 378 of 2284