Resolution 2020-31183 RESOLUTION NO. 2020-31183
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER TO EXECUTE, IN A FORM ACCEPTABLE TO THE CITY
ATTORNEY,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 KGTC, LLC
("PROPERTY OWNER"), RELATING TO THE PROPERTY LOCATED AT 7125,
7135, AND 7145 CARLYLE AVENUE; 7100, 7108, 7118, 7134, AND 7144
BYRON AVENUE,AND 527 71 STREET("PROPERTY");WHICH AGREEMENT
PROVIDES FOR THE PAYMENT OF MITIGATION TOWARD SCHOOL BOARD
CONCURRENCY BY PROPERTY OWNER TO M-DCSB 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 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, KGTC, LLC ("Property Owner"), is the property owner of a development
project to be constructed at 7125, 7135, and 7145 Carlyle Avenue, 7100, 7108. 7118, 7134, 7144
Byron Avenue, and 527 71 Street, Miami Beach(hereinafter the"Property"); and
WHEREAS, on October 2, 2019, the Property Owner obtained Design Review Board
approval from the City of Miami Beach (File No. DRB 19-0407)to develop the Property, with 270
multifamily residential dwelling units, which are composed of 121 microunits (counted as 61 for
density calculations) and 149 regular units; and
WHEREAS, the Property currently holds a credit for 47 existing units,which are proposed
to be demolished, for a net total of 163 residential units for school concurrency calculation
purposes; and
WHEREAS, pursuant to the ILA, the Property Owner is required to mitigate its impacts
to senior high schools in order to proceed with the development. In order to mitigate the project's
impact, a Proportionate Share Mitigation Agreement will be required; and
WHEREAS,the ILA requires that the M-DCSB,the City, and the Property Owner approve
the attached Agreement; and
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WHEREAS, upon performing a Concurrency Review for the proposed development, the
M-DCSB determined that the required pubic school level of service would not be met, pursuant
to the following findings:
1) Adequate school facility capacity is not available for three (3) 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; 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 Applicant shall pay the Monetary Proportionate Share Mitigation funds;
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 the approval of the attached Agreement, in
order to ensure compliance with the City's ILA with M-DCSB, and ensures that the Property
Owner complies with applicable school concurrency requirements.
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, in a form acceptable to the City Attorney, 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 KGTC, LLC (`Property Owner"), relating to the property located
at 7125, 7135, and 7145 Carlyle Avenue; 7100, 7108, 7118, 7134, and 7144 Byron Avenue; and
527 7155 Street ("Property"); which Agreement provides for the payment of mitigation toward
School Board concurrency by Property Owner to M-DCSB 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 between
M-DCSB and the City, dated December 12,2007 (the"ILA").
PASSED AND ADOPTED this /a day of F-e•Onkq",r. , 2020.
ATT E _. •
2 ��
DanGelber, Ma +VED AS TO
•l ! f /ZFORM&LANGUAGE
Rafael Granado, City Clerk &FOR EXECUTION
Mc.. Page 2 of 2 (R-cv.\ r1/4 °
I i City Attamay Data
IMCORP{4 0RATED
Resolutions - R7 J
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: February 12, 2020
SUBJECT: PUBLIC SCHOOL CONCURRENCY MITIGATION - 7125-7145 CARLYLE
AVENUE
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,APPROVING AND AUTHORIZING THE CITY
MANAGER TO EXECUTE, IN A FORM ACCEPTABLE TO THE CITY
ATTORNEY, 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 KGTC, LLC ("PROPERTY OWNER"), RELATING TO THE PROPERTY
LOCATED AT 7125, 7135, AND 7145 CARLYLE AVENUE; 7100, 7108, 7118,
7134, AND 7144 BYRON AVENUE, AND 527 71 STREET ("PROPERTY");
WHICH AGREEMENT PROVIDES FOR THE PAYMENT OF MITIGATION
TOWARD SCHOOL BOARD CONCURRENCY BY PROPERTY OWNER TO
M-DCSB 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
BETWEEN M-DCSB AND THE CITY, DATED DECEMBER 12, 2007 ("ILA").
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.
ANALYSIS
On October 02, 2019, the property owner/applicant, KGTC, LLC obtained approval from the Design
Review Board (DRB 19-0407)to develop the properties located at 7125, 7135, 7145 Carlyle Avenue,
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7100, 7108, 7118, 7134, 7144 Byron Avenue and 527 71 Street., with 270 multifamily residential
dwelling units, which are composed of 121 microunits (counted as 61 for density calculations)
and 149 regular units. The site has a credit for 47 existing units which are to be demolished, for
a net total of 163 residential units for school concurrency calculation purposes.
Upon performing a concurrency review for the proposed development, Miami-Dade County Public
Schools (MDCPS) determined that the required pubic 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.
FINANCIAL INFORMATION
In accordance with Charter Section 5.02, which requires that the"City of Miami Beach shall consider
the long term economic impact(at least five years) of proposed legislative actions," this shall confirm
that the administration evaluated the long term economic impact (at least five years)of this proposed
legislative action. The proposed Ordinance is not expected to have a negative fiscal impact upon the
City.
CONCLUSION
The Administration recommends that the City Commission approve the Resolution.
Applicable Area
North Beach
Is this a Resident Right to Does this item utilize G.O.
Know item? Bond Funds?
Yes No
Legislative Tracking
Planning
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ATTACHMENTS:
Description
❑ Agreement
❑ Resolution
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This instrument prepared by
Victor Alonso
Miami-Dade County Public Schools
1450 NE 2 Avenue.Room 525
Miami,FL 33132
After Recording return to:
Ana R.Craft,Esquire
School Board Attorney's Office
1450 NE 2nd Avenue,0430
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
, 2020, 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 KGTC, LLC, a Florida limited liability company,
hereinafter referred to collectively as "Applicant" or "Property Owner"," whose address is
7100-7108-7118-7134-7144 Byron Ave 7135-7145 Carlyle Ave 527 71 Street Miami Beach, FL
33141; the School Board, City and Applicant are collectively referred to in this agreement as
"Party", and collectively 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 0232110020290,
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0232110020280, 0232110020270, 0232110020260, 0232110020300, 0232110020310,
0232110020320, 0232110020340, 0232110020350) located in the City of Miami Beach 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, the Applicant has submitted an application seeking approval to develop no
more than 163 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 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 filed an application with the Design Review Board for
Design Review Approval application with the City Planning Department, 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
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
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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
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
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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 , 2020; and
WHEREAS, the City of Miami Beach, at its meeting of , 2020, 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 Mathis Cohen, Manager, has been and is
hereby fully authorized to execute this Agreement on behalf of KGTC, LLC, a Florida limited
liability company; and
NOW, 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:
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 arc 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.
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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 One Hundred Fifty-
Four Dollars (S33,154) per scat. As such, the amount of the Monetary Proportionate Share
Mitigation under this option shall be Ninety-Nine Thousand Four Hundred Sixty-Two Dollars
(S99,462)(i.e. 3 seats x S33,154 purchase price of a Banked Seat= Monetary Proportionate Share
Mitigation payment of S99,462).
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
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 Ninety-Nine Thousand Four Hundred Sixty-Two Dollars
($99,462), 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.
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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 [LA. 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
to issuance of building permits by the City for the subject Development Proposal.
Furthermore, the Applicant must obtain the Finding prior to issuance and recordation
of the Design Review Final Order by the City.
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
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Thousand Two Hundred Seventeen Dollars(S23,217), derived by subtracting the cost
of the three banked seats(S99,462),less the Reimbursable Value to be paid to the owner
of Bank#2016-004 for the sale of three banked seats(S25,415 x 3 =S76,245),resulting
in S99,462 - S76,245 = S23,217. 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.
5. EFFECTIVE DATE.This Agreement shall take effect upon the last of the Parties signing this
Agreement, but in no event later than March 27, 2020 ("Effective Date"). Failure to deliver this
Agreement to the School Board executed by the Applicant by January 31,2020 and by the City by
February 21, 2020 may, in the sole discretion of the School District, result in the revocation of the
Concurrency Determination issued by the School District on July 24, 2019 and revised on
September 16, 2019, 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.
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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 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
do 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
valonso2@dadeschools.net; and concurrency@dadeschools.net
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The School Board of Miami-Dade County, Florida
do School Board Attorney
1450 NE 2 Avenue, Suite 400
Miami, Florida 33132
Walter.Harvey@dadeschools.net and Acraft@dadeschools.net
In the case of Notice or communication to the Applicant:
KGTC, LLC
Attn: Mathis Cohen, Manager
1193 Street
Miami Beach, FL 33141
Phone: (646) 715-7795
me@kahunah.net
With copy to:
Ethan B. Wasserman,Esquire.
Greenberg Traurig, P.A.
333 SE 2 Avenue,41st Floor
Miami, Florida 33131
Phone: (305) 579-0784
Fax: (305) 579-0717
wassermaneAgtlaw.com
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
Fax: (305) 673-7559
Email: michaelbelushAmiamibeachfl.gov
With a copy to:
Raul Aguila, City Attorney
OFFICE OF THE CITY ATTORNEY
1700 Convention Center Dr., Miami Beach, FL 33139
RaulAguila(dmiamibeachfl.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
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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.
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 laws'provisions.Any controversies or legal issues arising out of this Agreement,
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and any action involving the enforcement or interpretation of any rights hereunder, shall be
submitted to the jurisdiction of the State Court of the 11 th 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 ices
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,
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
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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 maybe conditioned upon the written
agreement of the assigmee 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
SCI1001.BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
KGTC,LLC-FINAL 12/17/2019 Page 12 of 20
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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. '
17. 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.
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.
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
SCI1001.BOARD/PROPORTIONATE SIIARE MITIGATION AGREEMENT
KGTC,1.1r-FINAI.11/17/2019 Page 13 of 20
Page 896 of 1185
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
records which are directly pertinent to this specific Agreement for the purpose of making audit,
examination, excerpts,and transcriptions.
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
KGTC,LLC-FINAL 121172019 Page 14 of 20
Page 897 of 1185
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(a.dadeschools.net, and 1450 NE Second Avenue, Miami,
Florida 33132.
[INDIVIDUAL SIGNATURE PAGES FOLLOW!
SCHOOL 13OARD/PROPORTIONATE SHARE MR'IGA'1ION AGREEMENT
KGCC.LLC—FINAL 12/17/2019 Pagc 15 of 20
Page 898 of 1185
IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the
respective dates under each signature:
APPLICANT/PROPERTY OWNER
WITNESSES:
KGTC, LLC,
a Florida limited liability company
By:
Print Name: Mathis Cohen, Manager
Print Name:
APPLICANT'S ACKNOWLEDGMENT
STATE OF FLORIDA )
)SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2020, by
Mathis Cohen, as Manager of KGTC, LLC, a Florida limited liability company, on behalf of the
Company. He/she is personally known to me or has produced as
identification.
Notary:
[NOTARY SEAL) Print Name:
My Commission expires:
so1001.HOARD/PROPORTIONATE SilARE MITIGATION AGREEMENT
KGTC,LLC-FINAL 12/17/2019 Page 16 of 20
Page 899 of 1185
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
KGTC,[.LC-FINAL 12/1712019 Page 17 of 20
Page 900 of 1185
ACKNOWLEDGMENT
STATE OF FLORIDA )
} SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
, 2020, by 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
KGTC,LLC-FINAL.12/17/2019 Page 18 of 20
Page 901 of 1185
CITY OF MIAMI BEACH:
WITNESSES: City of Miami Beach:
By:
, Mayor
day of , 2020.
ATTEST:
Clerk
By:
Planning Director
ATTEST
APPROVED AS TO FORM AND
LANGUAGE AND FOR
EXECUTION:
By �b_Cu.
City Attorney
Date: p•..
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
KGTC.LLC-FINAL 12/172019 Page 19 of 20
Page 902 of 1185
ACKNOWLEDGMENT
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
, 2020, 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 [ x] 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
KGTC,[.LC—FINAI.I2/17/2019 Page 20 of 20
Page 903 of 1185
EXHIBIT "A"
TO PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION
DEVELOPMENT AGREEMENT AMONG THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FL;
CITY OF MIAMI BEACH; AND KGTC, LLC
Legal Description
Lots 1 through 3, inclusive and 7 through 12 inclusive, Block 5 of NORMANDY
BEACH SOUTH, according to the Plat thereof, as recorded in Plat Book 21, at Page
54, Public Records of Miami-Dade County, Florida.
Page 904 of 1185
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