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Item Q8C ounty of M onroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 The FlOnda Key y m 1 �� Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting August 15, 2018 Agenda Item Number: Q.8 Agenda Item Summary #4574 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger (305) 292 -3470 n/a AGENDA ITEM WORDING: Update on negotiations 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: 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 developer would retain ownership of the development rights harvested from the property. He intends to sell the 7 transient units to help finance the project. The City's original request contained no offer of consideration in exchange for the County's 11 allocations. At the July 18th BOCC meeting, there was discussion of the County loaning 11 of its allocations to the City for use on this project until such time as the City receives future allocations from Governor Scott's Florida Keys Workforce Housing Initiative. The County units would be loaned with the same restrictions that have been proposed by Governor Scott (e.g. early evacuation requirement, rental properties). This restriction would permit the City to substitute the first 11 allocations it receives from the Governor's initiative, once the amendments to the City's comprehensive plan and land development regulations are approved; the City would then return the County's 11 allocations to the County for use in the unincorporated areas. At the July meeting, the Board directed staff to negotiate with the City to see if the City was willing to pledge 11 of its other allocations as security in the event that the City's amendments to its comprehensive plan and land development regulations were unsuccessful. The County Attorney met with the City Manager and Deputy City Manager. City staff has agreed to place an item on the agenda for the City Council's August 14, 2018 meeting. We will update the BOCC after the City Council gives its staff direction. Additional background from the July agenda item 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 ILA that was approved on July 18, 2018, the City and the developer agreed that all 18 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 for the value of the property taken plus attorney's fees and interest. A property owner's lawyer can be expected to seek fees at a rate at least 3 times that of the loaded salary costs the County pays for its staff attorneys. All of 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: On July 18, 2018, the Board deferred action on this item and authorized the County Attorney to negotiate with City staff. The County has previously approved transferring a total of 206 affordable allocations to the City on 12/14/16, 8/16/17, 10/18/17, and 7/18/18. PREVIOUS RELEVANT BOCC ACTION: The BOCC discussed this item on July 18, 2018 and deferred action. The BOCC has previously agreed to transfer 206 affordable allocations from the County's allotment to the City of Marathon from December 2016 through July 2018. CONTRACT /AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: While granting the City's request for 11 allocations 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. A loan of allocations with restrictions would be preferable but a loan with no security for replenishment of allocations in the event that the Governor's new program is successfully challenged leaves the County exposed to losing those 11 allocations entirely. DOCUMENTATION: ILA IMBY Marathon Agenda Item on IMBY ROGO request Mayor Rice's motion IMBY project July 18, 2018 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: REVIEWED BY: Bob Shillinger Bob Shillinger Budget and Finance Maria Slavik Kathy Peters Board of County Commissioners Completed 07/30/2018 3:52 PM Completed 07/30/2018 3:53 PM Completed 07/30/2018 4:50 PM Completed 07/31/2018 7:28 AM Completed 07/31/2018 8:27 AM Pending 08/15/2018 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 R �l AYES: Bartus, Cook, Senmartin, Zieg, Coldiron NOES: None ABSENT: None ABSTAIN: None ATTEST: 41 - blmtL Mq Diane Clavier, City Clerk (City Seal) APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF MARATHON, FLORIDA ONLY: 2J David IgUt, City tto�ine R.. l 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 J 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: u "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 1 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. 2 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 3 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. J 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 4 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 R.. 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: R.. By: Assistant County Attorney ATTEST, A)� ckmuge' _. 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: R.. l 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: X Rq RECOMMENDATION: Approval of Resolution 2018 -XXX Q.8.b Location Map 7931 Overseas Highway m r �a a r a� Q a �a 3 U) O 0 O W C 0 r m m r m 0 a m r m 0 a m O t7 O m 2 E m _r m C m a� Q C 0 r m m r C m E m r r Q #196481 vl Packet Pg. 1939 Item 0 -3 - IMBY ILA July 28, 2018 Mayor Rice's motion: I move approval of the proposed ILA with the following conditions: Instead of a grant of 11 affordable ROGO /BPAS allocations from the County to the City, the County will instead loan 11 affordable allocations to the City for use on the IMBY project with the same restrictions set forth in the Governor's Keys Workforce Housing Initiative. Specifically, each of the 11 allocations shall be used for rental units that have a management agreement in place which requires all occupants to evacuate from the unit during the early (tourist) phase of the evacuation in the event of a mandatory evacuation due to the threat of a hurricane. The first 11 units that the City receives from the State under the Keys Workforce Housing Initiative, or similar program, shall be substituted on the IMBY property and the City shall return the 11 units loaned by County under this agreement to the County for use within the unincorporated areas. If the City fails to receive from the State at least 11 units under the Keys Workforce Housing Initiative within 2 years of the date of this agreement, the City shall substitute 11 of its BPAS allocations for the 11 ROGO allocations loaned by the County to the City for use at IMBY and return the 11 ROGO allocations to the County. This time period may be extended by mutual agreement of both the City and the County. The County Attorney is directed to make changes to the text of the draft ILA to reflect this condition.