Agenda 06/10/2008 Item #12B
Agenda Item No. 126
June 10, 2003
Page 1 of 1P
EXECUTIVE SUMMARY
Reject the proposed Modification of Agreement between Board of Trustees of the Internal
Improvements Trust Fund, the South Florida Water Management District (Big Cypress)
and Collier County, Florida. (This Item to follow Companion Item 10(B).
OBJECTIVE: To reject the proposed Modification of October, 2003 Agreement between the
Board of Trustees of the Internal Improvement Fund ("BOT"), South Florida Water Management
District ("SFWMD") and the County.
CONSIDERATIONS: On May 23,2007, the Board of County Commissioners approved the
Supplemental Agreement between the South Florida Water Management District and Collier
County ("Supplemental") which memorialized a settlement proposal between SFWMD and
Collier County at a joint meeting of their governing boards held in Naples, on January 10,2007,
pursuant to Chapter 164. The majority of the Supplemental was devoted to the 640-acre site for
A TV use. Paragraphs 8 and 9 of the Supplemental, however, addressed the District's request
that the original tri-party agreement be modified and states that:
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"[t]he District will have no affirmative obligation under the October 2003 Agreement
(2003 Agreement) between the District, the County and the BOT to maintain the
roadways and/or provide access in Picayune Strand and the areas identified in the 2003
Agreement. It is the intent of the parties as represented in previous Chapter 164
discussions with counsel for the BOT that the State of Florida Division of Forestry (DOF)
shall have the sole responsibility of the maintenance of the roads and the providing of
access in Picayune Strand and areas referenced in the 2003 Agreement."
Because the original agreement imposed this obligation on both the District and BOT, it was
deemed necessary to have the BOT confirm this existing obligation to maintain the roadways and
expressly agree in writing to this modification to the tri-party agreement. Pursuant to Paragraph
9 of the Supplemental a Modification was to be signed by BOT, or its agent, DEP. The attached
Modification was signed by the DEP on behalf of the Board of Trustees, and forwarded to the
County for execution. Although requested by the County, the DEP attorney refused to re-affrrm
the BOT's maintenance obligation under the original agreement. Recently, as a result of further
request by County Attorney's Office, the Modification was revised to include Paragraph 3.
Again, no affirmative statement of this existing obligation has been provided. Although BOT
has indicated its approval and consent of the removal of the District from this obligation (see the
attached correspondence), it will not expressly affirm its, or the Division of Forestry's, obligation
to maintain these roadways. Until such time as the BOT agrees to the modification and accepts
its responsibility to maintain the roadways in the Picayune, the modification contemplated by
Paragraphs 8 and 9 of the Supplemental is ineffective.
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It has been suggested that the BOT's refusal to confirm its maintenance obligation is a result of '
the current adversarial position between the County and the State. In November, 2007, the
County was sued by Vibid Group, Inc., for the alleged "taking" of access through the vacation of
these roadways in 2003 and supervision and implementation of the Picayune Strand Hydrologic
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Agenda Item No. 126
June 10, 2008
Page 2 of 19
Restoration Project. The County has filed a Third Party Complaint against both the BOT and
SFWMD, who have responded with motions 10 dismiss. Because of BOT's reluctance to
reiterate its existing obligation or to identify the Division of Forestry as the responsible agency,
the Office of County Attorney recommends that the County refuse to execute the proposed
Modification.
FISCAL IMP ACT: None. i'
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GROWTH MANAGEMENT IMPACT: None associated with this Executive Summary. I
RECOMMENDATION: That the Collier County Board of County Commissioners reject the
proposed Modification until such time as the State is willing to re-state it obligation to maintain
the roadways in accordance with subparagraphs 8(a)-(c).
PREPARED BY: Ellen T. Chadwell, Assistant County Attorney
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Page 1 of 1
Agenda Item No. 128
June 10, 2008
Page 3 of 10
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
12B
Meeting Date:
Reject the proposed Modification of Agreement between Board of Trustees of the Internal
Improvements Trust Fund. the South Florida Water Management District (Big Cypress) and
Collier County, Florida (This Item to follow Companion Item 10(C).
6/10/2008 90000 AM
Prepared By
Ellen T. Chadwell
Assistant County Attorney
Date
County Attorney
County Attorney Office
5/29/20089:15:43 AM
Approved By
Jeff Klatzkow
Assistant County Attorney
Date
County Attorney
County Attorney Office
5/29/200611 :24 AM
Approved By
Ellen T. Chadwell
Assistant County Attorney
Date
County Attorney
County Attorney Office
5/29/2006 1: 53 PM
Approved By
OMS Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
5/30/2006 9:50 AM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management & Budget
611/20081:16 PM
Approved By
James V. Mudd
Board of County
Commissioners
County Manager
Date
County Manager's Office
6/2/2006 11 :05 AM
(
file://C:\AgendaTest\Export\ 1 09-June%20 1 0,%202008\ 12. %20COUNTY%20A TTORNEY%... 6/4/2008
Agenda Item No. 128
June 10, 2008
Page 4 of 10
MODI FICA nON OF AGREEMENT BElWEEN
THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,
THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT (BIG CYPRESS BASIN)
AND
COLLIER COUNTY, FLORIDA
This Modification of the October 6, 2003 Agreement (hereinafter referred 10 as Ihe
"ModifICation of Agreement"), is made and entered into this
day of
_' 2007 by and between the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida (hereinafter "STATE"), South Florida
Water Management District (hereinafter referred to as "DISTRlcr), and Collier County,
a subdivision of the stale of Florida, (hereinafter "COUNTY").
WIT N E SSE T H:
WHEREAS, STATE, DISTRICT, and COUNTY entered into an agreement on
October 8, 2003 (hereinafter referred to as "Agreement") attached hereto as Exhibit A
which in part referenced certain obligations of the STATE and DISTRICT to maintain
roads and/or provide access as more specifically referenced in paragraphs 6, 8 and 9 of
said Agreement; and
WHEREAS on june 14, 2007 the DISTRICT and the COUNTY entered into a
"SUPPLEMENTAL AGREEMENT BETWEEN THE SOUTH FLORIDA WATER
MANAGEMENT DISTRICT AND COLLIER COUNTY" (hereinafter referred to as
"Supplemental Agreement") attached hereto as Exhibit B; and
WHEREAS, in said Supplemental Agreement, the COUNTY and DISTRICT
recognize that the STATE, rather than the DISTRICT, would be responsible for the
maintenance of the project area, as defined in the 2003 Agreement; and
Agenda Item No. 128
June 10, 2008
Page 5 of 10
ModifiCation of Agreement
WHEREAS, the DISTRICT and the COUNTY have agreed that the terms of the
Supplemental Agreement that conflict with the October 2003 Agreement shall be
deemed to supersede and replace, in its totality, the conflicting terms of the October
2003 Agreement.
NOW, THEREFORE, in consideration of the benefits flowing from each to
the other, STATE, DISTRICT and COUNTY agree as follows:
1. The above recitals are true and correct and are incorporated herein as
part of this Modification of Agreement.
2. The DISTRICT shall have no affirmative obligation to maintain the
roadways/roads and/or provide access in Picayune Strand and the areas identified in
the October 2003 Agreement. More specifically, the "DISTRICT" and any reference to
DISTRICT obligations in paragraphs 6, 8 and 9 of the October 2003 Agreement with
respect to the maintenance of roads, roadways and/or the providing of access is hereby
deleted, removed and terminated.
[SIGNA TURE PAGE FOLLOWS]
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Page 2 of 3
Agenda Item No. 12B
June 10, 2008
Page 6 of 10
Modiftcakion of Agreement:
AS TO COUNTY:
Dated:
Attest:
By:
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
Approved as 10 form and legal sufficiency
James Coletta, Chairman
Dale:
Assistant County Attorney
Ellen T. Chadwell
AS TO DISTRICT:
Dated:
Attest:
By:
Assislant Secrelary
South Florida Water Management District,
BY ITS GOVERNING BOARD
Approved as to form and legal suffiCiency BY:
Eric Buermann, Chairman
South Florida Water Management District Date:
Office of Counsel
AS TO STATE:
Dated:
Atlest:
By:
BOARD OF TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST
FUND
d legal sufficiency
.
Page 3 of 3
Agenda Item No. 12B
June 10, 2008
Page 7 of 10
MODIFICATION OF AGREEMENT BETWEEN
THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,
THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT (BIG CYPRESS BASIN)
AND
COLLIER COUNTY, FLORIDA
This Modification of the October 8, 2003 Agreement (hereinafter referred to as the
"Modification of Agreement"), is made and entered into this
day of
, 2007 by and between the Board of Trustees of the Internal
Improvement Trust Fund of the State of Florida (hereinafter "STATE"), South Florida
Water Management District (hereinafter referred to as "DISTRICT"), and Collier County,
a subdivision of the state of Florida, (hereinafter "COUNTY").
WIT N E SSE T H:
WHEREAS, STATE, DISTRICT, and COUNTY entered into an agreement on
October B, 2003 (hereinafter referred to as "Agreementl attached hereto as Exhibit A
which in part referenced certain obligations of the STATE and DISTRICT to maintain
roads and/or provide access as more specifically referenced in paragraphs 6, Band 9 of
said Agreement; and
WHEREAS on June 14, 2007 the DISTRICT and the COUNTY entered into a
"SUPPLEMENTAL AGREEMENT BETWEEN THE SOUTH FLORIDA WATER
MANAGEMENT DISTRICT AND COLLIER COUNTY" (hereinafter referred to as
"Supplemental Agreement") attached hereto as Exhibit B; and
WHEREAS, in said Supplemental Agreement, the COUNTY and DISTRICT
recognize that the STATE, rather than the DISTRICT, would be responsible for the
maintenance of the project area, as defined in the 2003 Agreement; and
('
Agenda Item No. 128
June 10, 2008
Page 8 of 10
Modificalion of Agreement
WHEREAS, the DISTRICT and the COUNTY have agreed that the terms of the
Supplemental Agreement that conniel with the October 2003 Agreement shall be
deemed to supersede and replace, in its totality, the conflicting terms of the October
2003 Agreement.
NOW, THEREFORE, in consideration of the benefits nowing from each to
the other, STATE, DISTRICT and COUNTY agree as follows:
1. The above recitals are Irue and correct and are incorporated herein as
part of this Modification of Agreement.
2. The DISTRICT shall have no affirmative obligation to maintain the
roadways/roads and/or provide access in Picayune Strand and the areas identified in
the October 2003 Agreement. More specifically, the "DISTRICT" and any reference to
DISTRICT obligations in paragraphs 6, 8 and 9 of the October 2003 Agreement with
respect to the maintenance of roads, roadways and/or the providing of access is hereby
deleted, removed and terminated.
3. This modification does not affect the STATE's original responsibilities
under Paragraphs 6, 8 and 9 of the October 2003 Agreement.
[SIGNATURE PAGE FOLLOWS]
Page 2 of 3
Modification of Agreement
AS TO COUNTY:
Dated:
Attest:
By:
Approved as to form and legal sufficiency
Assistant County Attomey
Ellen T. Chadwell
AS TO DISTRICT:
Dated:
Attest:
By:
Assistant Secretary
Agenda Item No. 128
June 10, 2008
Page 9 of 10
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY. FLORIDA
BY:
Date:
James Coletta, Chairman
South Florida Water Management District,
BY ITS GOVERNING BOARD
Approved as to form and legal sufficiency BY:
South Florida Water Management District Date:
OffICe of Counsel
AS TO STATE:
Dated:
Attest:
By:
Approved as to form and legal sufficiency
.--
,
Eric Buermann, Chairman
BOARD OF TRUSTEES OF THE
INTERNAL IMPROVEMENT TRUST
FUND
BY:
Date:
Page 3 of 3
Agenda Item No. 128
June 10, 2008
Page 10 of 10
SOUTH FWRIDA WATER MANAGEMENT DISTRICf
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M.:uhng Addrcs.o;: POBox 24680, West Palm Beach, Fl334164680 .. www.sfwmd gov
April 2, 2008
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Ellen T. Chadwell. Esq.
Assistant County Attorney
Office of the County Attorney
Harmon Turner Building
3301 East Tamiami Trail- 8'n Floor
Naples, Florida 34112
o
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Dear Ms. Chadwell:
SUBJECT: Modification of October 2003 Aareement
Pursuant to my March 31$' e-mail to you (copy to Bud Vielhauer), please find enclosed the
revised draft of the "Modification of October 2003 Agreement" for review and signature by
Collier County in accordance with the Supplemental Agreement entered into between the
District and the County in 2007.
As you can see. the revision consists of adding the language offered by DEPlTrustees that
you will find in paragraph three (3) that states, "This modification does not affect the
STATE's original responsibilities under Paragraphs 6, 8 and 9 of the October 2003
Agreement".
Please return the signed "Modification of October 2003 Agreement" back to me so that I
can forward it to Bud Vielhauer for authorized signature. He will then return the document
to me for District execution. I have enclosed three (3) originals so that Collier County, the
District and the Trustees can each retain one (1) original after the complete signing of
same (please forward all three (3) signed originals to Bud Vielhauer).
Should you have any questions, please do not hesitate to give me a call.
f\rrD~
R~ h'pans'e
Office of Counsel
RGP/acc
Enclosures
c: Bud Vielhauer