Item O3C ounty of M onroe
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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
The FlOnda Key
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Mayor Pro Tern Sylvia J. Murphy, District 5
Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
County Commission Meeting
July 18, 2018
Agenda Item Number: 0.3
Agenda Item Summary #4449
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger (305) 292 -3470
no
AGENDA ITEM WORDING: Discussion and direction regarding a request from the City of
Marathon to transfer 11 affordable ROGO allocations to the City of Marathon for the IMBY project.
ITEM BACKGROUND: The City of Marathon has requested that the County transfer eleven (11)
of the County's affordable ROGO allocations to the City for a project applied by IMBY, Inc. (11
units). Under the IMBY project, the developer would convert 7 transient units to affordable housing
and add in 4 additional units. The city's request does not clearly indicate who would retain
ownership of the rights to the 7 transient units or what would become of those rights. The City's
regulations do allow owners of existing units to keep the rights to market rate ROGOs in exchange
for deed restricting the existing unit as affordable housing and use the existing rights on other
projects or sell the rights for a profit.
The City's request contains no offer of consideration in exchange for the County's allocations. In
one prior interlocal agreement where the developer was able to harvest the existing development
rights in exchange for the use of the County's affordable ROGOs, the County was able to receive
fifty percent (50 %) of those harvested for use in unincorporated area of the County as consideration
for the transfer. In another proposed ILA on today's agenda, the City and the developer have agreed
that all of the market rate allocations harvested off the property must be used in the unincorporated
area of the County.
The City indicates that it has no affordable housing allocations left, yet it still has one hundred (100)
market rate allocations left in its allotment through 2023 as well as twenty -six (26) existing market
rate allocations that the City is holding for administrative relief to protect the City from takings
claims. In addition, the City's regulations permit property owners who deed restrict existing units as
affordable to sell the market rate allocations on the open market so there are units in addition to the
126 available in the City for use to build market rate housing and administrative relief.
In 2012, the Department of Economic Opportunity, working in conjunction with the local
governments in the Keys, divided the remaining allocations that the hurricane evacuation model runs
indicate could be built while still maintaining the 24 -hour evacuation period for permanent residents
mandated by statute based upon the percentage of vacant land left in each jurisdiction. This
apportionment was done in recognition of each jurisdictions exposure for takings liability.
Each ROGO allocation — even those designated for affordable housing - has a value to the
jurisdiction which issues it when it comes time to defend against a takings or Bert J. Harris Act
claim. The ability to award an allocation — either market rate or affordable - to an owner of vacant
property moots both a takings and Harris Act claim. Affordable allocations are particularly useful in
defending against claims made under the Bert J. Harris Act since that law would permit the parties to
settle the property owner's claim by relaxing the affordable housing regulations for that property, if
appropriate.
Based on past experience, the County's takings in -house counsel estimates that he would expend
approximately $45,000 to $50,000 in defending a simple, single lot takings claim from the pre -suit
beneficial use determination process through a trial and appeal. This figure is based upon the loaded
salary costs of an attorney, planner, and paralegal plus hard costs necessary to pay an appraiser and
other expert witnesses, transcript costs, and other necessary expenditures. This estimate is also
based only upon a successful defense of such a claim. A victory by the property owner would result
in far greater costs to County taxpayers because the law permits the property owner to recover
damages plus attorney's fees and interest. These costs are avoidable for each allocation the County
is able to award to vacant property owners in the unincorporated areas. Based upon the estimated
defense cost of $45,000 alone, the City's request for 11 allocations would have a minimum
estimated cost to the County of $495,000.
PREVIOUS RELEVANT BOCC ACTION: None on this item but the County has previously
approved transferring a total of 188 affordable allocations to the City on 12/14/16, 8/16/17, and
10/18/17.
CONTRACT /AGREEMENT CHANGES:
no
STAFF RECOMMENDATION: While granting the City's request would be a lawful policy
choice, the County Attorney counsels against granting the City's request as stated without receiving
some sort of consideration for the lost opportunity to build 11 units of housing in the unincorporated
area and /or the anticipated costs in defending against 11 property rights suits brought by property
owners in the unincorporated area of the County.
DOCUMENTATION:
ILA IMBY
Marathon Agenda Item on IMBY ROGO request
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details: The fiscal costs to the County are an estimated minimum of $495,000
based upon current loaded salary costs. These costs are not likely to manifest themselves until
after 2023.
This request will have a long term fiscal impact on the County estimated to be of at least
$495,000.
REVIEWED BY:
Bob Shillinger
Completed
07/03/2018 1:26 PM
Bob Shillinger
Completed
07/03/2018 3:30 PM
Budget and Finance
Completed
07/03/2018 3:33 PM
Maria Slavik
Completed
07/03/2018 5:03 PM
Kathy Peters
Completed
07/03/2018 5:53 PM
Board of County Commissioners
Pending
07/18/2018 9:00 AM
Sponsored by: Lindsey
CITY OF MARATHON, FLORIDA
RESOLUTION 2018 -61
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MARATHON, FLORIDA, APPROVING AN INTERLOCAL AGREEMENT
BETWEEN MONROE COUNTY AND THE CITY OF MARATHON
TRANSFERRING ELEVEN (11) AFFORDABLE HOUSING
RESIDENTIAL ALLOCATIONS FOR A PROJECT IN THE OWNERSHIP
OF IMBY INC.; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Marathon (the "City ") wishes to enter into an Interlocal
Agreement with Monroe County (the "County ") for the purposes of Transferring affordable
housing unit allocations; and
WHEREAS, the Interlocal Agreement with the County is in the best interest of Monroe
County and the City of Marathon for the purposes of providing opportunities for affordable
housing,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF MARATHON, FLORIDA, THAT:
Section 1. The above recitals are true and correct and incorporated herein.
Section 2. The Interlocal Agreement (ILA) attached hereto as Exhibit "A ", between
Monroe County and the City of Marathon transferring affordable housing residential allocations
for a project in the name of IMBY Inc.is hereby approved. The Mayor is authorized to sign the
ILA on behalf of the City.
Section 3. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
MARATHON, FLORIDA, THIS 12" DAY OF JUNE, 2018.
THE CITY OF MARATHON, FLORIDA
flg A-a&ot o - ,
Michelle Coldiron, Mayor
AYES:
Bartus, Cook, Senmartin, Zieg, Coldiron
NOES:
None
ABSENT:
None
ABSTAIN:
None
ATTEST:
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Diane Clavier, City Clerk
(City Seal)
APPROVED AS TO FORM AND LEGALITY FOR THE USE
AND RELIANCE OF THE CITY OF MARATHON, FLORIDA ONLY:
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David IgUt, City tto�ine
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INTERLOCAL AGREEMENT BETWEEN
MONROE COUNTY AND THE CITY OF MARATHON
TRANSFERRING AFFORDABLE HOUSING RESIDENTIAL ALLOCATIONS
This Agreement ( "Agreement ") is made and entered into this day of
2018, by and between Monroe County, a political subdivision of the State
of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040 ( "County ")
and the City of Marathon, a municipal corporation of the State of Florida, whose address
is 9805 Overseas Highway, Marathon, Florida 33050 (the "City ");
WITNESSETH:
WHEREAS, Monroe County and the City of Marathon recognize the value of
regional partnerships in smart growth; and
WHEREAS, Policy 101.2.15 of the Year 2010 Monroe County Comprehensive
Plan allows Rate of Growth Ordinance building permit allocations (ROGOs) for affordable
housing projects to be pooled and transferred between local government jurisdictions
within the Florida Keys Area of Critical State Concern, if accomplished through an
interlocal agreement between the sending and receiving local governments; and
WHEREAS, Chapter Five (5) of the City Comprehensive Plan identifies goals,
objectives and policies to provide for development pursuant to intergovernmental
coordination and interlocal agreements; and
WHEREAS, Monroe County and the City of Marathon have previously entered
into Interlocal Agreements to transfer ROGOs; and
WHEREAS, Monroe County and the City of Marathon recognize the potential
economic value of such transferable affordable allocations; and
WHEREAS, this Agreement is entered into according to the authority of Florida
Statutes, Section 163.0 1, et. seq., Florida Interlocal Cooperation Act of 1969, which states:
"It is the purpose of this section to permit local government units to make the most
efficient use of their powers by enabling them to cooperate with other localities on
a basis of mutual advantage and thereby to provide services and facilities in a
manner and pursuant to forms of governmental organization that will accord best
with geographic, economic, population, and other factors influencing the needs and
development of local communities "; and
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WHEREAS, the comprehensive plans of Monroe County and the City of Marathon
expressly identify interlocal agreements as a means of resolving issues mutually affecting
their respective jurisdictions; and
WHEREAS, IMBY, Inc., a Florida Corporation owns the described property and has been
granted Conditional Use and Development Agreement approval for workforce housing on the
described site.
Parcel No. 00347290 - 000000; Alt. Key No. 1425109
7931 Overseas Highway
Marathon, FL 33050
Lots 29 and 30, Atlantic Shores, according to the map or plat thereof as recorded in Plat
Book 3, Page 5, Public Records of Monroe County, Florida
WHEREAS, County hereby agrees to transfer to City eleven (11) affordable housing
allocations to allow Marathon to secure the above properties as deed restricted affordable housing.
public.
WHEREAS, the parties have determined that this Agreement is in the best interests of the
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. TRANSFER: The parties agree to permit the transfer of up to eleven (11)
affordable housing ROGO allocations from Monroe County to the City of Marathon, and subject
to the conditions contained therein, including but not limited to:
a. The filing of a 99 year Affordable Housing Deed Restriction on all of the
eleven (11) affordable housing units pursuant to this Agreement and the applicable
requirements of the Code of Ordinances, City of Marathon, Florida and the applicable
provisions of the Florida Building Code.
b. Should the unit not be utilized pursuant to the approved Development
Agreement the units will be returned to the County.
Section 2. ASSIGNMENT: Monroe County has assigned its rights to the affordable
allocations to the City, and the eleven (11) affordable housing allocations are to be issued by the
City to be used specifically by IMBY, Inc. a Corporation, at and upon the site in Marathon known
as 7931 Overseas Highway, Marathon, FL 33050.
Section 3. TERM: Subject to and upon the terms and conditions set forth herein, this
Agreement shall continue in force until fully performed by the parties and Property Owner. If any
of the affordable allocations transferred to the City through this ILA are not transferred to the
properties identified herein they shall be returned to the County within and not to exceed one year
from the date of the approval of this ILA.
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Section 4. NOTIFICATION: The City of Marathon shall (1) notify Monroe County
of any assignment(s) and successor(s) in interest or title to IMBY, Inc., a Florida Corporation; for
the duration of the ROGO allocations described in Section 1. ( "Transfer ") above, and (2) shall
notify Monroe County of any assignment(s) and successor(s) in interest or title to the ROGO
allocations described in Section 1. ( "Transfer ") above at least thirty (30) days prior to the date of
such transfer or succession by certified U. S. Postal Service Certified mail to the Monroe County
Planning & Environmental Resources Senior
Director.
All such notices under this Section ( "Section 4. ") shall be sent to the following addresses:
Monroe County Administrator
1100 Simonton Street
Key West, FL 33040
Planning & Environmental Resources Department
Attn: Senior Director
2978 Overseas Highway
Marathon, FL 33050
Section 5. GOVERNING LAWSNENUE: This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida and the United States. Exclusive
venue for any dispute arising under this Agreement shall be in the Sixteenth Judicial Circuit in and
for Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a
reasonable attorney's fee and costs. This Agreement is not subject to arbitration.
Section 6. NONDISCRIMINATION: The parties agree that there will be no
discrimination against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court order.
The parties agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to (1) Title VI of the
Civil Rights Act of 1964 (P.L. 88 -352) which prohibits discrimination on the basis of race, color
or national origin; (2) Section 504 of the Rehabilitation Act of 1973, as amended (20 U.S.C. s.
1975, as amended (42 U.S.C. ss. 6101- 6107)), which prohibits discrimination on the basis of age,
(4) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92 -255), as amended, relating to
nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol Abuse And
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91 -616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health
Service Act of 1912, ss. 523 and 527, (42 U.S.C. ss. 290 dd -3 and 290 ee03), as amended, relating
to confidentiality of alcohol and drug abuse patient records; (7) The Americans With Disabilities
Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to
nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act of 1992, (Chapter
760, Florida Statutes, and Section 509.021, Florida Statutes), as may be amended from time to
time, relating to nondiscrimination; and (9) any other nondiscrimination provisions in any federal
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or state statues or local ordinances which may apply to the parties to, or the subject matter of, this
Agreement.
Section 7. CODE OF ETHICS: The parties agree that their officers and employees
recognize and will be required to comply with the standards of conduct relating to public officers
and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to,
solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation;
misuse of public position, conflicting employment or contractual relationship; and disclosure or
use of certain information.
Section 8. NO SOLICITATION/PAYMENT: The parties warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide employee
working solely for it, to solicit or secure this Agreement and that it has not been paid or agreed to
pay any person, company, corporation, individuals, or firm, other than a bona fide employee
working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon
or resulting from the award or making of this Agreement. For the breach of violation of this
provision, each party agrees that the other party shall have the right to terminate this Agreement
without liability and, at its discretion, to offset from monies owed, or otherwise recover the full
amount of such fee, commission, percentage, gift, or consideration.
Section 9. SUBORDINATION: This Agreement is subordinate to the laws and
regulations of the United States and the State of Florida, whether in effect on commencement of
this Agreement or adopted after that date.
Section 10. INCONSISTENCY: If any item, condition, or obligation of this
Agreement is in conflict with other items of this Agreement, the inconsistencies shall be construed
so as to give meaning to those terms which limited the County's responsibility and liability.
Section 11. PUBLIC ACCESS TO RECORDS: The parties shall allow and permit
members of the public reasonable access to, and inspection of, all documents, papers, letters, or
other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by
the parties in conjunction with this Agreement.
Section 12. NON - RELIANCE BY NON - PARTIES: Other than as stated herein, no
person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to
enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the parties agree that neither the County nor the City or any
agent, officer, or employee of each shall have the authority to inform, counsel, or otherwise
indicate that any particular individual or group of individuals, entity or entities, have entitlements
or benefits under this Agreement separate and apart, inferior to, or superior to the community in
general or for the purposes contemplated in this Agreement.
Section 13. NO PERSONAL LIABILITY: No covenant or agreement contained
herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee
of a party in his or her individual capacity, and no member, officer, agent or employee of a party
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shall be liable personally on this Agreement or be subject to any personal liability or accountability
by reason of the execution of this Agreement.
Section 14. NOTICES: All notices and other communications hereunder must be in
writing and addressed as follows, or to any other address which either party may designate to the
other party by mail:
If to County: Roman Gastesi, Jr., County Administrator
Monroe County Historic Gato Building
1100 Simonton Street
Key West, Florida 33040
Planning & Environmental Resources Department
Attn: Senior Director
2798 Overseas Highway
Marathon, FL 33050
With a copy to: Robert B. Shillinger, Jr., Esquire
Monroe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041 -1026
If to City: Charles Lindsey
City Manager
City of Marathon
9805 Overseas Highway
Marathon, Florida 33050
George Garrett
Planning Director
City of Marathon
9805 Overseas Highway
Marathon, FL 33050
With a copy to: David Migut, Esquire
City Attorney
City of Marathon
9805 Overseas Highway
Marathon, FL 33050
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Joshua Mothner
49052 nd Street Gulf
Marathon, FL 33050
President, IMBY, Inc.
Any notice required by this Agreement to be given or made within a specified period of
time, or on or before a date certain, shall be deemed to have been duly given if sent by certified
mail, return receipt requested, postage and fees prepaid; hand delivered, or sent by overnight
delivery service.
Section 15. ENTIRE AGREEMENT/MODIFICATION /AMENDMENT: This
writing contains the entire Agreement of the parties and supersedes any prior oral or written
representations. No representations were made or relied upon by either party, other than those that
are expressly set forth herein. No agent, employee, or other representative of either party is
empowered to modify or amend the terms of this Agreement, unless executed with the same
formality as this document.
Section 16. MISCELLANEOUS: Each party represents and warrants to the other that
the execution, delivery, and performance of this Agreement has been duly authorized by all
necessary corporate or other organizational action, as required.
Section 17. COUNTERPARTS: This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and such counterpart shall constitute one
and the same instrument.
Section 18. SEVERABILITY: The provisions of this ILA are declared to be
severable, and if any sentence, section, clause or phrase of this ILA shall, for any reason, be held
to be invalid or unconstitutional, such decision shall not affect the validity of the remaining
sentences, sections, clauses or phrases of the Ordinance, but they shall remain in effect it being the
legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part.
Section 19. EFFECTIVE DATE: This Agreement shall take effect on the date set
forth above.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its
duly authorized representative.
(SEAL)
ATTEST: KEVIN MADOK, CLERK
By:
Deputy Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Mayor David Rice Date:
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By:
Assistant County Attorney
ATTEST,
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Diane Clavier
City Clerk
(City Seal)
THE CITY OF MARATHON, FLORIDA
B 1 1•
Mayor Michelle Coldiron Date:
We hereby consent to this Agreement and agree to abide by all terms and requirement herein.
IMBY, Inc.
A Florida Corporation
IC
Joshua Mothner
President
Date:
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COUNCIL AGENDA STATEMENT
Meeting Date: June 12, 2018
To: Honorable Mayor and Council Members
From: George Garrett, Deputy City Manager
Through: Chuck Lindsey, City Manager
Agenda Item: Resolution 2018 -XXX, A Resolution Of The City Council Of The City Of
Marathon, Florida, Approving An Interlocal Agreement Between Monroe County And The City
Of Marathon Transferring Eighteen (11) Affordable Housing Residential Allocations For A
Project In The Ownership Of IMBY Inc.; And Providing An Effective Date
BACKGROUND & JUSTIFICATION:
By Resolution the City Council will provide approval for the transfer of eighteen (11) affordable
housing units from the County into the City of Marathon, to be allocated to IMBY, Inc. for their
approved project located on 79 Street and U. S 1. IMBY Inc. has already purchased the property
located at 7931 Overseas. The affordable units once transferred will be deed restricted for a
minimum of ninety -nine (99) years as required in the Monroe County and City of Marathon Land
Development Regulations.
Pursuant to both Monroe County and City Codes, the
The Marathon Building Official shall be required to do inspections of the existing units to insure
that each meets the Codes each requires, specifically:
1. Hurricane Standards established by the Florida Building Code; and
2. habitability standards established under the Florida Landlord and Tenant Act
A time limit is set within which said review and any necessary improvements must be made. Any
allocations not utilized pursuant to this agreement shall revert to the County pursuant to the
Interlocal Agreement.
CONSISTENCY CHECKLIST: Yes No
1. Comprehensive Plan
2. Other —Sewer Mandate
FISCAL NOTE:
Not Applicable
APPROVED BY FINANCE DIRECTOR:
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RECOMMENDATION:
Approval of Resolution 2018 -XXX
Location Ma
7931 Overseas Highway
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