Resolution 2020-31484 RESOLUTION NO. 2020-31484
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 NOBE CREEK, LLC ("PROPERTY OWNER"), RELATING
TO THE PROPERTY LOCATED AT 666 71 STREET, 6973 INDIAN CREEK
DRIVE, AND 6980 - 6994 CARLYLE 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, Nobe Creek, LLC ("Property Owner") is the owner of property at 666 71 St,
6973 Indian Creek Drive, and 6980 -6994 Carlyle Avenue, in Miami Beach (the "Property"); and
WHEREAS, on July 7, 2020, the Property Owner obtained Design Review Board approval
from the City of Miami Beach (File No. DRB 20-0505)to develop the Property with 70 multifamily
residential dwelling units, which are composed of 81 co-living units (counted as 41 for density
calculations) and 29 regular units; and
WHEREAS, the Property currently holds no credits for existing units; therefore, a total of
70 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
the agreement; and
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WHEREAS, as required by the ILA, the Parties agree that the Property Owner has
selected, as its Proportionate Share mitigation option, the purchase of two (2) 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 that 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.
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, Miami-Dade County School Board, and Nobe Creek, LLC ("Property
Owner"), the owner of property at 666 71 Street, 6973 Indian Creek Drive, and 6980 - 6994
Carlyle Avenue; which Agreement provides for the payment of mitigation toward School Board
concurrency by Property Owner to M-DCSB arising out of 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 f' day of Avehde 1 2020.
014
•
ATTEST: 1
IICORP ORATED•
14- 4°,Dan Gelber, Mayor
1 � J ....cti26
111\\ --
Rate . Granado, City Clerk
APPROVED AS TO FORM AND
LANGUAGE AND FOR EXECUTION
e8v: (0 I ZA (2°V
City Attorney NV__ Date
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Resolutions-C7 L
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: November 18, 2020
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 NOBE CREEK, LLC ("PROPERTY OWNER"), RELATING
TO THE PROPERTY LOCATED AT 666 71 STREET, 6973 INDIAN CREEK
DRIVE, AND 6980 - 6994 CARLYLE 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").
RECOMMENDATION
The Administration recommends that the City Commission adopt 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 July 7, 2020 the property owner/applicant, Nobe Creek, LLC obtained Design Review
Approval from the Design Review Board (DRB 20-0505) to develop the properties located at
666 71 Street, 6973 Indian Creek Drive, and 6980-6994 Carlyle Avenue, as a unified site with
70 multifamily residential dwelling units. Upon performing a concurrency review for the proposed
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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 two 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 I LA 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.
CONCLUSION
The Administration recommends that the City Commission adopt 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?
No No
Legislative Tracking
Planning
ATTACHMENTS:
Description
o Resolution
o Agreement
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This instrument prepared by
Victor Alonso
Miami-Dade County Public Schools
1450 NE 2"d Avenue,Room 525
Miami,FL 33132
After Recording return to:
Ana R.Craft,Esquire
School Board Attorney's Office
1450 NE 2nd 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
, 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 NOBE CREEK, LLC, a Florida limited liability
company, hereinafter referred to collectively as "Applicant", "Developer", or "Property
Owner",whose address is 1561 West Avenue, Miami Beach, FL 33139; the School Board, City
and all of the foregoing entities (Applicant) are authorized to transact business in the State of
Florida. Applicant are sometimes 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 0232110021200,
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r
0232110021190, 0232110021220, 0232110021230) 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 July 7,2020,the Property Owner obtained Design Review Board approval
from the City of Miami Beach (File No. DRB 20-0505) to develop the Property, with 70
multifamily residential dwelling units, which are composed of 81 co-living units (counted as 41
for density calculations) and 29 regular units. The site has no credits for existing units, thus the
net total is 70 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 filed a new application for Design Review Approval with
the City Planning Department(file DRB20-0505 dated 4/28/20),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 two (2) 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
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NOBE CREEK,LLC—9/28/20 Page 2 of 2I
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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) 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
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WHEREAS, the Parties agree that the Applicant has selected as its Proportionate Share
Mitigation option, the purchase of two (2) 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 ., 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 Jefferson Brackin, Manager of Nobe
Creek,LLC,a Florida limited liability company,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
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.
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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 ($33,495) per seat. As such, the amount of the Monetary Proportionate Share
Mitigation under this option shall be Sixty-Six Thousand Nine Hundred Ninety Dollars($66,990)
(i.e.2 seats x$33,495 purchase price of a Banked Seat=Monetary Proportionate Share Mitigation
payment of$66,990).
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 Sixty-Six Thousand Nine Hundred Ninety Dollars ($66,990),
shall be by cashier check, wire transfer or any other method of payment acceptable to
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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
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)
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("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 Sixteen
Thousand One Hundred Sixty Dollars ($16,160), derived by subtracting the cost of the
two banked seats ($66,990), less the Reimbursable Value to be paid to the owner of
Bank#2016-004 for the sale of two banked seats ($33,495 x 2 =$66,990),resulting in
$66,990 - $50,830 =$16,160. 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 December 18,2020("Effective Date").Failure to deliver
this Agreement to the School Board executed by the Applicant by October 16, 2020 and by the
City by November 6, 2020, may, in the sole discretion of the School District, result in the
revocation of the Concurrency Determination issued by the School District on May 5, 2020,
incorporated herein by reference.
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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
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
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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
The School Board of Miami-Dade County, Florida
c/o 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:
Nobe Creek, LLC
Attn: Jefferson Brackin, Manager
1561 West Avenue,
Miami Beach, FL 33139
Phone: (305)793-7662
jefferson@fwdxgroup.com
With a copy to:
Abraham A. Galbut, Esq.
Galbut Walters & Associates LLP
4770 Biscayne Blvd., Suite# 1400
Miami, Florida 33137
Phone: (786)245-2302
agalbut@hudcap.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
Phone: (305)673-7000
Email: michaelbelush@miamibeachfl.gov
With a copy to:
Raul Aguila, City Attorney
Office of the City Attorney
1700 Convention Center Dr., Miami Beach, FL 33139
RaulAguilaAmiamibeachfl.gov
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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.
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
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to its conflicts of laws' 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,
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
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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
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
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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.
17. 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
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 asprescribed
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
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC-9/28/20 Page 13 of21
Page 211 of 1430
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.
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.
I
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.
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC—9/28/20 Page 14 of 21
Page 212 of 1430
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.
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
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC—9/28/20 Page 15 of 21
Page 213 of 1430
DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT
(305) 995-1128, prrAdadeschools.net, and 1450 NE Second Avenue, Miami,
Florida 33132.
[INDIVIDUAL SIGNATURE PAGES FOLLOW]
r
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC—9/28/20 Page 16 of 21
Page 214 of 1430
IN WITNESS WHEREOF, the Parties have made and executed this Agreement on the
respective dates under each signature:
APPLICANT/PROPERTY OWNER
WITNESSES: NOBE CREEK, LLC,
a Florida limited liability company
By:
Print Name: Jefferson Brackin, Manager
Print Name:
APPLICANT'S ACKNOWLEDGMENT
STATE OF FLORIDA )
) SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 2020, by
Jefferson Brackin, as Manager of Nobe Creek LLC,a Florida limited liability company, on behalf
of the said Applicant/Company. He/she/they is/are personally known to me or has/have
produced as identification.
Notary:
[NOTARY SEAL] Print Name:
My Commission expires:
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC-9/28/20 Page 17 of 21
Page 215 of 1430
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
NOBE CREEK,LLC—9/28/20 Page 18 of 21
Page 216 of 1430
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
NOBE CREEK,LLC—9/28/20 Page 19 of 21
Page 217 of 1430
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:
1 ; f—DS
City Attorney
Date: f 10 2-0
•
SCHOOL BOARD/PROPORTIONATE SHARE MITIGATION AGREEMENT
NOBE CREEK,LLC—9/28/20 Page 20 of 21
Page 218 of 1430
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
NOB E CREEK,LLC—9/28/20 Page 21 of 21
Page 219 of 1430
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 NOBE CREEK, LLC
Legal Description
Lots I and 2. less the East J10 feet thereof,Block 15,NORi 1ANDV BEACH SOUTH,according to the Mat thereof.as
recorded in Mat Book 21,at Page 54,of the Public Records of Miami-Dade County,Florida.
Parcel Identification Number: 02-3211-002-1200
and •
The East 80 feet of Lots I and 2,Block 15,NORMANDY BEACH SOUTH,according to the Plat thereof,as recorded
in Plat Book 21,at Page 54,of the Public Records of Miami-Dade County,Florida.
Parcel Identification Number: 02-3211-002-1190
and
The East 65.55 feet of Lot 3,Block 15,of NORMANDY BEACH SOUTH,according to the plat thereof,as recorded in
Plat Book 21,at Page 54,of the Public Records of Maimi-Dade County, Florida.
Parcel Identification Number: 02-3211-002-1220
Page 220 of 1430
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Page 221 of 1430 r-
.••
JOINDER
TO PUBLIC SCHOOL CONCURRENCY PROPORTIONATE SHARE MITIGATION
DEVELOPMENT AGREEMENT AMONG THE SCHOOL BOARD OF MIAMI-DADE
COUNTY, FL; CITY OF MIAMI BEACH; AND NOBE CREEK, LLC
(Consisting of 2 pages, including this title page)
Page 222 of 1430
JOINDER BY MORTGAGEE •
REG FINANCIAL, LLC
The undersigned, Russell W. Galbut, as President of REG Financial, LLC, a Florida limited liability
company and Mortgagee under that certain Mortgage from Nobe Creek, LLC, a Florida limited
liability company, dated 7/3/2019 and recorded 7/16/2019, in Official Records Book 31525, Page
1096, as Document No. 20190439483 in the Public Records of Miami-Dade County, Florida,
covering all/or a portion of the property described in the Declaration of Restrictions, does
hereby consent to the execution of the foregoing Public School Concurrency Proportionate Share
Mitigation Development and agrees that in the event Mortgagee or any other party shall obtain
title to the property through foreclosure or deed-in-lieu of foreclosure, this Public School
Concurrency Proportionate Share Mitigation Development shall be binding upon the entity
obtaining title as the then owner of such property. ������
IN WITNESS WHEREOF, these presents have been executed this R; day of(h ,,, 2020.
WITNESSES: REG Financial, LLC,
a Florida li 'ted liabilit company
_ L., _1 By: /0"
Sig .tu = Na e: Russell W. Galbut
Title: President
Signature
STATE OF FLORIDA ) .
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowl ged by means of(physical appearance or [ ] online
arizati n, refore me this 7/„day of ��, 2020 by / //c•-,(1/.(/. Z/ i as
ilr ! 19
of REG Financial, LLC, a Florida limited liability companVHe is_personally
to_
own to me and did not take an oath.
af.anu, 41/1,Lit,
N tary,Public %.11 .
...gait. DAYAMI AGUTAR 1
yt°, �\ Notary Public•State of F;orida ,
, ay�� • El Commission#GG 283448
..,o o r9Y My Comm.Expires Mar t6.2023 (
I Bonded through National Notary Assn.
(00075501;1}
Page 223 of 1430