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Backup Documents 12/11-12/2012 Item #16A26 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLI TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO A 2 6 THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNAT Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP . Complete routing lines#1 through#4 as appropriate for additional signatures,dates,and/or information needed. If the document is already complete with the exception of the Chairman's signature,draw a line through routing lines#1 through#4,complete the checklist,and forward to the BCC Office(line#5). Route to Addressee(s) Office Initials Date (List in routing order) 1. Stephen Lenberger GMD Planning & AZ 12/11/2012 Regulation/Natural Resources Department 2. 3. 4. court A-tfc, 01A-c t2-lit /1 5 Kristi Bartlett, Executive Aide to the Board of County BCC Office Commissioners \-24 VL\\Z 6. Minutes and Records Clerk of Court's Office PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event one of the addressees above,including Kristi Bartlett,needs to contact staff for additional or missing information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the item.) Name of Primary Staff Stephen Lenberger Phone Number 252-2915 Contact Agenda Date Item was December 11,2012 Agenda Item Number 16.A.26 Approved by the BCC Type of Document License Agreement Number of Original 1 Attached Documents Attached INSTRUCTIONS & CHECKLIST Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not appropriate. (Initial) Applicable) 1. Original document has been signed/initialed for legal sufficiency. (All documents to be signed by the Chairman,with the exception of most letters,must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions,etc. signed by the County Attorney's Office and signature pages from contracts,agreements,etc.that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and possibly State Officials.) 2. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A Office and all other parties except the BCC Chairman and the Clerk to the Board 3. The Chairman's signature line date has been entered as the date of BCC approval of the document or the final negotiated contract date whichever is applicable. 4. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's signature and initials are required. 5. In most cases(some contracts are an exception),the original document and this routing slip i Z should be provided to the BCC office within 24 hours of BCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of your deadlines! 6. The document was approved by the BCC on 12/11/2012 (enter date)and all changes TI made during the meeting have been incorporated in the attached document. The County Attorney's Office has reviewed the changes,if applicable. I:Forms/County Forms/BCC Forms/Original Documents Routing Slip WWS a19 Q3.0 , vi 26. evisett7.2' 1 16A26 Ann P. Jennejohn From: AshtonHeidi <HeidiAshton @colliergov.net> Sent: Friday, December 14, 2012 2:58 PM To: Lenberger, Steve; Lorenz,William Cc: Ann P.Jennejohn; Bonham, Gail Subject: RE: Barefoot Beach License Agreement (Item #16A26) Steve, Did the executive summary state that it would be recorded and provide an account number for billing? If not, then no, it does not need to be recorded unless Barefoot or the Conservancy want to pay for the recording cost. qeate Alatut-eCc4¢a Heidi Ashton-Cicko Managing Assistant County Attorney 3299 Tamiami Trail East, Suite 800 Naples, FL 34112 (239) 252-8400 From: LenbergerSteve Sent: Friday, December 14, 2012 2:56 PM To: AshtonHeidi; LorenzWilliam Cc: Ann P. Jennejohn; BonhamGail Subject: FW: Barefoot Beach License Agreement(Item #16A26) Heidi/Bill! Can you answer Ann's question? I do not know the procedure.Thank you! Stephen From: Ann P. Jennejohn [mailto:Ann.Jennejohn@collierclerk.com] Sent: Friday, December 14, 2012 2:37 PM To: LenbergerSteve Subject: Barefoot Beach License Agreement(Item #16A26) Hi Stephen, Quick question for you. Attached is a signed copy of License Agreement between the Barefoot Beach Club COA, Inc., the Conservancy & the Board that was approved this past Tuesday; do you want this agreement recorded in the official records? I was going to go ahead and do that, but I thought I'd better confirm it with you first. Could you please let me know when you have a free minute? Thank you! Ann Jennejohn, Deputy Clerk 1 GRANT FRID_KIN m PEARSON ATTORNEYS AND COUNSELORS AT LAW January 2, 2013 Heidi Ashton - Cicko, Esq. Managing Assistant County Attorney 3299 Tamiami Trail East, Ste. 800 Naples, FL 34112 16 A26 CHARLES C. WHITTINGTON Attorney at Law 239.514.1000 Ext. 2016 cwhittington@gfpac.com Re: The Conservancy of Southwest Florida, Inc. / Barefoot Beach Club Condominium Owners AssCClation, Inc. Dear Ms. Ashton - Cicko: Per Mr. Whittington's email of January 2, 2013, enclosed please find The Conservancy of Southwest Florida, Inc.'s original signature page to the License Agreement. Please likewise provide our office with an original signature page executed by the County. Should you have any questions, please do not hesitate to contact us. Thank you. Very tr 'y yours, Lynn Kinder —Assistant to Charles C. Whittington Ik Enclosure GRANT FRIDKIN PEARSON, PA. E 51 Ridgewood Drive, Suite 501, Naples, Florida 34108 1 T 239.514.1000 F 239.514.0377 1 www.gfpac.corn SUNDSTROM, FRIEDMAN & FUMERO, LLP A t t o r n e y s I C o u n s e I o r s Heidi Ashton - Cicko, Esquire Collier County 3299 Tamiami Trail East, Suite 800 Naples, FL 34112 16A26 January 7, 2013 950 PENINSULA CORPORATE CIRCLE SUITE 2020 BOCA RATON, FL 33487 RE: The Conservancy of Southwest Florida, Inc. / Barefoot Beach Club Condominium Owners Association, Inc. Dear Ms. Ashton - Cicko, PHONE (561) 982 -7114 FAX (561) 982 -7116 www.sfflaw.com Enclosed please find the original fully executed signature page to the License Agreement. Should you have any questions or require any additional information, please do not hesitate to contact us. TFM/bt Enclosure Sincerel L Thomas F. BOCA RATON & LAKE MARY 0 TALLAHASSEE SUNDSTROM, 7700 CONGRESS AVENUE SUITE 2201 FRIEDMAN & FUMERO, LLP BOCA RATON,FL 33487 Attorneys I Counselors PHONE(561)982-7114 FAX(561)982-7116 www.sfflaw.com April 8, 2012 Martha Vergara, Deputy Clerk Minutes and Records Department 3299 Tamiami Trail East Suite 401 Naples, FL 34112 Re: Barefoot Beach Club Condominium Owners Association,Inc. Dear Martha: Enclosed please find a check in the amount of $112.00, made payable to Dwight E. Brock, Clerk, which represents the fee to record the License Agreement between Barefoot Beach Club Condominium Owners Association, Inc., and Board of County Commissioners of Collier County, Florida. After the document has been recorded, can you please forward a copy of the recorded instrument to me via email (mwashington @sfflaw.com)? If you should have any questions or concerns, please do not hesitate to contact me. Sincerely, k. 'V1 • Imo! 11-1111 - _ X Cpl Missy M. Washington, FRP Florida Registered Paralegal BOCA RATON • LAKE MARY • TALLAHASSEE 16 A26 Return to: Name: Address: This Instrument Prepared by: Thomas F. Mullin, Esquire Sundstrom, Friedman& Fumero, LLP 950 Peninsula Corporate Circle Suite 2020 Boca Raton, FL 33487 SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA LICENSE AGREEMENT This LICENSE AGREEMENT (hereinafter referred to as the "License") is made this 1141 day of d ", 2012, by and between BAREFOOT BEACH CLUB CONDOMINIUM OWNERS ASSOCIATION, INC., a Florida non-profit corporation ("BAREFOOT"), whose principal address is 259 Barefoot Beach Blvd., Bonita Springs, Florida 34134, the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (the "COUNTY"), whose principal address is 3299 Tamiami Trail E, Suite 303 Naples, FL 34112, and The Conservancy of Southwest Florida, Inc., a Florida non-profit corporation ("CONSERVANCY"), whose principal address is 1450 Merrihue Drive,Naples, Florida 34102. BAREFOOT,the COUNTY, and the CONSERVANCY may at times be referred to as a"Party" or collectively as the "Parties". Rev. 10/22/12 1 of 9 16A26 WITNES SETH WHEREAS, the COUNTY is the owner of certain real property located in Collier County, Florida, more specifically described in Exhibit"1" (the "County Property"); WHEREAS, BAREFOOT is the owner of certain real property directly abutting the County Property, more specifically described in Exhibit"2" (the "Barefoot Property"); WHEREAS, the CONSERVANCY is a publicly supported, tax exempt, non-profit organization qualified under Sections 501(c)(3) and 170(h) of the Internal Revenue Code, whose primary purposes include the preservation, protection, and enhancement of the natural resources and ecological values of land and its natural and/or open space condition; WHEREAS, BAREFOOT and the CONSERVANCY intend to perform an environmental study for researching and evaluating whether perpetual mangrove trimming will cause significant adverse impacts to the existing mangrove forest located on the Barefoot Property and the County Property (the "Environmental Study"). WHEREAS, BAREFOOT and the CONSERVANCY seek the COUNTY's authorization to perform the Environmental Study and related mangrove trimming, management, and monitoring activities on the County Property, pursuant to the Environmental Study Agreement dated October 8, 2012 between BAREFOOT and the CONSERVANCY; WHEREAS, in recognition of said Environmental Study Agreement, and BAREFOOT's need to conform with Florida Department of Environmental Protection Mangrove Trimming General Permit No. 11-0209794-001-MA05 (the "Permit"), the COUNTY desires to grant to BAREFOOT and the CONSERVANCY a license to perform the Environmental Study and related mangrove trimming, management, and monitoring activities. Rev. 10/22/12 2 of 9 16A26 I NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be mutually bound, hereby agree as follows: 1. Recitals; Exhibits. The above recitals are true and correct and, along with all exhibits attached hereto, are incorporated herein by this reference. 2. Grant of License to BAREFOOT. The COUNTY hereby grants to BAREFOOT, and its successors and assigns, a license, over, under, across and through the County Property for the limited purpose of performing periodic trimming, management, and monitoring of the native and exotic vegetation, including mangrove trees and mangrove fringe areas, together with associated rights of pedestrian ingress and egress only as may be reasonably necessary to perform such trimming, management, and monitoring. Trimming shall be conducted by BAREFOOT as limited by the attached Exhibit "3." In conjunction therewith, BAREFOOT shall perform periodic maintenance, including, but not be limited to, the removal of exotic vegetative species within the County Property and the removal of any debris or trash material on the County Property at the time of performing the periodic trimming. 3. Grant of License to the CONSERVANCY. The COUNTY hereby grants to the CONSERVANCY and its successors and assigns, a license to enter upon the County Property for the limited purpose of performing periodic monitoring activities, together with associated rights of pedestrian ingress and egress only as may be reasonably necessary to perform such monitoring. The Parties hereby agree that the COUNTY shall not be responsible for any costs associated with such trimming, management, and monitoring. 4. Permits. BAREFOOT is responsible for obtaining, at no cost or expense to the COUNTY, all federal and state permits and approvals necessary or appropriate to conduct the Rev. 10/22/12 3 of 9 16A26 proposed trimming, management, monitoring, and maintenance activities within the County Property. The use by BAREFOOT, and its employees, agents, contractors, representatives, or invitees, of the County Property, shall, at all times, comply with all applicable federal, state and local laws, rules, regulations, orders and requirements. The Parties agree that the rights hereby granted by this License shall be sufficient to satisfy the riparian rights requirements necessary for BAREFOOT to conform with the requirements and conditions of the Permit. 5. Responsibility for Fines. Should BAREFOOT's activities on the County Property, whether intentionally or negligently, violate any lawful and applicable governmental entities' permits, requirements, rules, acts, orders, regulations and restrictions, BAREFOOT shall be responsible for full payment of any fines, fees, charges, or penalties resulting therefrom. 6. Indemnification. BAREFOOT does hereby agree to indemnify, defend and hold the COUNTY harmless from and against any and all liability, claims, damages, costs and expenses arising in connection with personal injury, property damage, liens or violations of any Permits or other governmental laws, rules or regulations, suffered or occurring as a result of BAREFOOT's activities or the CONSERVANCY's activities within the County Property, whether conducted by BAREFOOT, the CONSERVANCY, or their employees, agents, contractors, representatives or invitees. Said indemnification and hold harmless shall include but not be limited to fines, fees, charges, penalties and any and all injuries sustained by persons or property that may be incurred due to BAREFOOT's action or inaction under this License, including but not limited to, misfeasance, malfeasance, nonfeasance, negligence or failure to carry out the terms and conditions of this License, as well as the responsibilities and related duties assumed herein by BAREFOOT. This indemnification shall include attorneys' fees and costs pre-suit and at the local and appellate court levels. Rev. 10/22/12 4 of 9 16x26 7. Sovereign Immunity. Nothing herein shall constitute waiver of any immunity enjoyed by the COUNTY under its sovereign authority. 8. Amendment; Waiver. This License may only be assigned, amended, or modified by an instrument executed by the COUNTY, BAREFOOT, and the CONSERVANCY. No waiver of any provision hereof shall be effective unless done so in writing signed by the party entitled to enforce such matter, nor shall any single waiver constitute a waiver of any subsequent obligation. 9. Duration. This License shall automatically expire ten (10) years from the date approved and executed by the COUNTY. The duration may be extended by written amendment. 10. Termination. The COUNTY maintains the discretion to terminate this License at any time, with or without cause, immediately upon written notice to BAREFOOT and the CONSERVANCY, after a duly noticed public hearing. Notice does not mean the placement of an advertisement in a newspaper. 11. Enforcement. Enforcement of the terms, provisions and restrictions of this License shall be at the reasonable discretion of the Parties, and any forbearance on behalf of a Party to exercise its rights hereunder in the event of any breach hereof by the other Party shall not be deemed or construed to be a waiver of the non-breaching Party's rights hereunder. The Parties may enforce the terms and conditions of this License by injunctive relief and other appropriate available remedies. The Parties agree that venue of such enforcement actions shall lie exclusively in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida. Rev. 10/22/12 5 of 9 16A26 12. Counterparts. This License may be executed in two or more separate counterparts, each of which shall be deemed an original, and all of which when taken together, shall constitute one and the same instrument. 13. No Third Party Beneficiaries. No person or entity shall be deemed a beneficiary of the terms of this License, unless specifically provided for herein. This License shall not constitute dedications to the public, and no member of the public shall have any rights hereunder. 14. Assignment. This License is not assignable. 15. Notices. Any notices to be delivered pursuant to this License shall be delivered to the parties at the addresses set forth in the preamble hereof. A Party may change its address for notice purposes by delivering written notice thereof to the other party. Notices required by this License shall be effective if delivered by hand, overnight courier service, facsimile, or U.S. Mail, postage prepaid. Notices shall be deemed received within five (5) days of deposit in the mail if sent by U.S. Mail, upon receipt by the sender of an electronic confirmation if sent by facsimile, upon delivery if hand delivered, and one (1) business day after deposit with any overnight courier service if sent in such manner. IN WITNESS WHEREOF, the undersigned have signed and sealed this document as of the day and year hereinafter set forth. Rev. 10/22/12 6 of 9 16A26 EXECUTED by BAREFOOT this 13 day of N ay e 2012. Witnesses: Print Name: BAREFOOT BEACH CLUB CONDOMINIUM OWNERS ASSOCIATION, INC., a Florida non -profit corporation By: Print Name: ri, eU Print Name: �C Tillie: Ores. f-e4o4r IZr.0 x� C OFl STATE OF FLORIDA SS COUNTY OF COLLIER [CORPORATE SEAL] i �--i� -1 f� %les the , �f PSG Before me personally appeared d of BAREFOOT BEACH CLUB CONDOMP41UM OWNERS ASSOCIATION, INC., who isTgs9 �to me or who produced as identification, and acknowledged to and before me that (s)he executed said instrument for the purposes therein expressed. WITNESS my hand and official seal in the State and County aforesaid this �` d r of �ic v e tv, V-)C- C , 2012. .........r.....®,. DAVID ,; ' M. WN 46 r_ W COMMISSION # EE 06517E 3 EXPIRES: April 3, 2015 Bonded Tt ru Notary Public Und Mi!rMa Notary Public, State of Florida Rev. 10/22/12 7 of 9 16 A26 EXECUTED by the CONSERVANCY this day of 10�� 2012. Witnesses: THE CONSERVANCY OF SOUTHWEST FLORIDA, INC., a Florida non -profit corporation Print Name:_ P*B e g- C- P-0016 S By: l Print Nano: N re t y A# F 64)-a,(, 4)-a , Titlo: C F-- 0 [CORPORATE SEAL] STATE OF FLORIDA ) SS COUNTY OF COLLIER ) Before me personally appeared (\�(e kk � t hk..the of THE CONSERVAN Y OF SOUTHWEST FLORIDA, INC., who is personally known to me or who produced as identification, and acknowledged to and before me that (s)he executed said instrument for the purposes therein expressed. WITNESS my hand and official seal in the State and County aforesaid this 2,�?�' day of 2012. KATHLEEN P. ADAMS c MY COMMISSION A DD 940461 Notary Public, State of Florida EXPIRES: November 27, 2013 n M."x: Bonded Thru Budget Notary Services Rev. 10/22/12 8 of 9 16 A26 Accepted by COUNTY: ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA L_r_ Cr' Clerk FRED W. COYLE, Chai 4l an i Approved as to form and legal sufficiency: By: (Jo N i. eidi Ashton-Cicko Managing Assistant County Attorney CP\l 0-ENS-00432\67 Rev. 10/22/12 9 of 9 16 A2 • S)' :: • c • I c ti 1i ► ,.c, ‘ear 0 200 400 c ‘N._.-_-'76.i.- , – . ,=;� t4 SCALE FEET I • V5a • • O` • I CY • r. 7 o 1 ' < U 1 �:∎` 0, ASS.41 ir _ �,�/. F %∎"► 1- ;7 - i•∎∎# Legend \b 1 :°° yy��5�!e . `!'. c — – — Edge of Mangrove Area ,\ :W' • 9 • — -- — Property Boundary the _ County Property-No Mangrove Trimming •, ) R$01$14 Mangrove Trimming within • ■VR4ti County Property 1 PERMIT USE ONLY, NOT FOR CONSTRUCTION November 08, 2012 2:12:37 p.m. Drawing: BBCA1 EXHIBIT 1.DWG Exhibit t W. DEXTER BENDER & ASSOCIATES, INC. CountProperty ENVIRONMENTAL & MARINE CONSULTING Y P Y FORT MYERS, FL (239) 334-3680 16A26 , • T. . ' .. S5 i'•' iiii 11,40. ,.,V= \ , i' a \\.. 4 x r,, ,., ., . 1 x . o - '' ,.r�` = 0 200 400 k ��. I SCALE FEET \\+ 1• ■ C, • ' ::. r , x_ (=.1 •y 1\1\ , . '‘ / �, r N • I Legend _ ,, ,,rte .h 1 — – — Edge of Mangrove Area , , jso 1 —--— Property Boundary Line ' /. \�\ Barefoot Property •` ) S F -V'aI�% Mangrove Trimming within • ` I; ' Barefoot Property \ ‘: PERMIT USE ONLY, NOT FOR CONSTRUCTION November 08, 2012 2:12:37 p.m. Drawing: BBCA1 EXHIBIT 1.DWG Exhibit 2 W. DEXTER BENDER ��` Bc ASS O CIA TES, INC. Barefoot Property ENVIRONMENTAL MARINE CONSULTING ��1 1 FORT MYERS, FL (239) 334-3680 16426 EXHIBIT`S' Limitations on Trimming and Management 1. Staking and Notice. Prior to trimming, Barefoot will clearly delineate, by staking and flagging, the boundaries of the trimming areas within the Mangrove Forest. Collier County Code Enforcement Department shall be notified at least two weeks prior to any trimming. The County may request to be present during trimming. 2. Shoreline Trimming. The trimming will not extend more than 500 feet waterward as measured from the trunk of the most landward mangrove tree in a direction perpendicular from the buildings to the shoreline. Trimming will occur in the riparian mangrove fringe of the Mangrove Forest. Barefoot will trim no more than 115,097 square feet, or 2.64 acres. 3. Height Trimming. a. Black and White Mangroves Black and white mangroves shall be trimmed to a height of no less than 20 feet. The height shall be measured at the base of the tree to the top of the canopy prior to trimming using a 20-foot measuring rod to verify the minimum trim height. Trimming of black and white mangroves will include topping and/or lateral limb removal. b. Red Mangroves No trimming will occur from the base of the tree to a height of 20 feet; however, Barefoot may laterally trim red mangroves above the height of 20 feet. The height shall be measured at the base of the tree to the top of the canopy prior to trimming using a measuring rod to verify the minimum lateral trim height of 20 feet. c. Trimming Schedule No more than 25% of the foliage of the mangroves in the mangrove forest may be trimmed each year. If the mangroves exhibit signs of significant stress, no maintenance trimming of the mangroves shall be performed until such time as it is determined that the mangroves have recovered from the prior trimming activities. 4. Access. Access to the proposed trimming areas will be on foot only. No vehicles or heavy machinery will be used or stored in the Mangrove Forest. Trimming will be conducted by utilizing ladders and hand held equipment only. No climbing spurs or spikes will be used. All cut material greater than'3n diameter will be removed by hand to an upland location for disposal. All other cuttings including leaves and twigs smaller than'/,'tin diameter will be left in place to rejuvenate the soil. No herbicide or other chemical will be used for the purpose of removing leaves or limbs of a mangrove. Rev. 11/01/12 Page 1 of2 _ 16A26 5. Trimming of Non-Mangrove Native Tree Species. Non-mangrove native trees, including buttonwood, cabbage palm, seagrape and strangler fig, shall be trimmed utilizing ANSI 300 trimming standards as a best management practice. For cabbage palms exceeding 20 feet in height, trimming shall be limited to the pruning of dead, or chlorotic, downward hanging fronds only (i.e., no trimming above the 9 o'clock and 3 o'clock positions) and no removal of green fronds. 6. Exotic and Invasive Species Removal. Barefoot shall conduct annual exotic and invasive species removal within the Mangrove Forest. Removal of exotics and nuisance vegetation (vines in particular) will take place prior to the initial and any subsequent mangrove trimming. Non-native, exotic and nuisance plants shall be killed in a manner consistent with current exotic vegetation treatment practices while reducing non-target damage to the maximum extent practicable. This may consist of hand clearing and "kill in place" methods. Large individual non-native trees (greater than 4" dbh) may be positioned in place. Cut stumps will be treated with an approved herbicide containing a visual tracer dye. All use of herbicides shall be applied by a licensed herbicide applicator in compliance with all labeling requirements. 7. Debris Removal. Barefoot shall perform monthly removal of debris within the Mangrove Forest as part of its regular maintenance activities. Rev. 10/22/12 Page 2 of 2 16A26 Return to: INSTR 4823800 02O13 253 PM PAGES 13 T COURT RECORDED CI— COLLIER OF THE cS I Name: DWGHT E. BROCK COLLIER COUNTY FLORIDA Address: REC$112.00 This Instrument Prepared by: Thomas F. Mullin, Esquire Sundstrom, Friedman& Fumero, LLP 950 Peninsula Corporate Circle Suite 2020 Boca Raton, FL 33487 SPACE ABOVE THIS LINE FOR PROCESSING DATA SPACE ABOVE THIS LINE FOR PROCESSING DATA LICENSE AGREEMENT This LICENSE AGREEMENT (hereinafter referred to as the "License") is made this day of Dcu,„? , 2012, by and between BAREFOOT BEACH CLUB CONDOMINIUM OWNERS ASSOCIATION, INC., a Florida non-profit corporation ("BAREFOOT"), whose principal address is 259 Barefoot Beach Blvd., Bonita Springs, Florida 34134, the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (the "COUNTY"), whose principal address is 3299 Tamiami Trail E, Suite 303 Naples, FL 34112, and The Conservancy of Southwest Florida, Inc., a Florida non-profit corporation ("CONSERVANCY"), whose principal address is 1450 Merrihue Drive,Naples, Florida 34102. BAREFOOT, the COUNTY, and the CONSERVANCY may at times be referred to as a"Party" or collectively as the"Parties". Rev. 10/22/12 1 of 9 16A26 WITNESSETH WHEREAS, the COUNTY is the owner of certain real property located in Collier County, Florida, more specifically described in Exhibit "1" (the "County Property"); WHEREAS, BAREFOOT is the owner of certain real property directly abutting the County Property, more specifically described in Exhibit "2" (the "Barefoot Property"); WHEREAS, the CONSERVANCY is a publicly supported, tax exempt, non-profit organization qualified under Sections 501(c)(3) and 170(h) of the Internal Revenue Code, whose primary purposes include the preservation, protection, and enhancement of the natural resources and ecological values of land and its natural and/or open space condition; WHEREAS, BAREFOOT and the CONSERVANCY intend to perform an environmental study for researching and evaluating whether perpetual mangrove trimming will cause significant adverse impacts to the existing mangrove forest located on the Barefoot Property and the County Property (the "Environmental Study"). WHEREAS, BAREFOOT and the CONSERVANCY seek the COUNTY's authorization to perform the Environmental Study and related mangrove trimming, management, and monitoring activities on the County Property, pursuant to the Environmental Study Agreement dated October 8, 2012 between BAREFOOT and the CONSERVANCY; WHEREAS, in recognition of said Environmental Study Agreement, and BAREFOOT's need to conform with Florida Department of Environmental Protection Mangrove Trimming General Permit No. 11-0209794-001-MA05 (the "Permit"), the COUNTY desires to grant to BAREFOOT and the CONSERVANCY a license to perform the Environmental Study and related mangrove trimming, management, and monitoring activities. Rev. 10/22/12 2 of 9 16A26 NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be mutually bound, hereby agree as follows: 1. Recitals; Exhibits. The above recitals are true and correct and, along with all exhibits attached hereto, are incorporated herein by this reference. 2. Grant of License to BAREFOOT. The COUNTY hereby grants to BAREFOOT, and its successors and assigns, a license, over, under, across and through the County Property for the limited purpose of performing periodic trimming, management, and monitoring of the native and exotic vegetation, including mangrove trees and mangrove fringe areas, together with associated rights of pedestrian ingress and egress only as may be reasonably necessary to perform such trimming, management, and monitoring. Trimming shall be conducted by BAREFOOT as limited by the attached Exhibit "3." In conjunction therewith, BAREFOOT shall perform periodic maintenance, including, but not be limited to, the removal of exotic vegetative species within the County Property and the removal of any debris or trash material on the County Property at the time of performing the periodic trimming. 3. Grant of License to the CONSERVANCY. The COUNTY hereby grants to the CONSERVANCY and its successors and assigns, a license to enter upon the County Property for the limited purpose of performing periodic monitoring activities, together with associated rights of pedestrian ingress and egress only as may be reasonably necessary to perform such monitoring. The Parties hereby agree that the COUNTY shall not be responsible for any costs associated with such trimming, management, and monitoring. 4. Permits. BAREFOOT is responsible for obtaining, at no cost or expense to the COUNTY, all federal and state permits and approvals necessary or appropriate to conduct the Rev. 10/22/12 3 of 9 16A26 proposed trimming, management, monitoring, and maintenance activities within the County Property. The use by BAREFOOT, and its employees, agents, contractors, representatives, or invitees, of the County Property, shall, at all times, comply with all applicable federal, state and local laws, rules, regulations, orders and requirements. The Parties agree that the rights hereby granted by this License shall be sufficient to satisfy the riparian rights requirements necessary for BAREFOOT to conform with the requirements and conditions of the Permit. 5. Responsibility for Fines. Should BAREFOOT's activities on the County Property, whether intentionally or negligently, violate any lawful and applicable governmental entities' permits, requirements, rules, acts, orders, regulations and restrictions, BAREFOOT shall be responsible for full payment of any fines, fees, charges, or penalties resulting therefrom. 6. Indemnification. BAREFOOT does hereby agree to indemnify, defend and hold the COUNTY harmless from and against any and all liability, claims, damages, costs and expenses arising in connection with personal injury, property damage, liens or violations of any Permits or other governmental laws, rules or regulations, suffered or occurring as a result of BAREFOOT's activities or the CONSERVANCY's activities within the County Property, whether conducted by BAREFOOT, the CONSERVANCY, or their employees, agents, contractors, representatives or invitees. Said indemnification and hold harmless shall include but not be limited to fines, fees, charges, penalties and any and all injuries sustained by persons or property that may be incurred due to BAREFOOT's action or inaction under this License, including but not limited to, misfeasance, malfeasance, nonfeasance, negligence or failure to carry out the terms and conditions of this License, as well as the responsibilities and related duties assumed herein by BAREFOOT. This indemnification shall include attorneys' fees and costs pre-suit and at the local and appellate court levels. Rev. 10/22/12 4 of 9 16A26 7. Sovereign Immunity. Nothing herein shall constitute waiver of any immunity enjoyed by the COUNTY under its sovereign authority. 8. Amendment; Waiver. This License may only be assigned, amended, or modified by an instrument executed by the COUNTY, BAREFOOT, and the CONSERVANCY. No waiver of any provision hereof shall be effective unless done so in writing signed by the party entitled to enforce such matter, nor shall any single waiver constitute a waiver of any subsequent obligation. 9. Duration. This License shall automatically expire ten (10) years from the date approved and executed by the COUNTY. The duration may be extended by written amendment. 10. Termination. The COUNTY maintains the discretion to terminate this License at any time, with or without cause, immediately upon written notice to BAREFOOT and the CONSERVANCY, after a duly noticed public hearing. Notice does not mean the placement of an advertisement in a newspaper. 11. Enforcement. Enforcement of the terms, provisions and restrictions of this License shall be at the reasonable discretion of the Parties, and any forbearance on behalf of a Party to exercise its rights hereunder in the event of any breach hereof by the other Party shall not be deemed or construed to be a waiver of the non-breaching Party's rights hereunder. The Parties may enforce the terms and conditions of this License by injunctive relief and other appropriate available remedies. The Parties agree that venue of such enforcement actions shall lie exclusively in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida. Rev. 10/22/12 5 of 9 16A26 12. Counterparts. This License may be executed in two or more separate counterparts, each of which shall be deemed an original, and all of which when taken together, shall constitute one and the same instrument. 13. No Third Party Beneficiaries. No person or entity shall be deemed a beneficiary of the terms of this License, unless specifically provided for herein. This License shall not constitute dedications to the public, and no member of the public shall have any rights hereunder. 14. Assignment. This License is not assignable. 15. Notices. Any notices to be delivered pursuant to this License shall be delivered to the parties at the addresses set forth in the preamble hereof. A Party may change its address for notice purposes by delivering written notice thereof to the other party. Notices required by this License shall be effective if delivered by hand, overnight courier service, facsimile, or U.S. Mail, postage prepaid. Notices shall be deemed received within five (5) days of deposit in the mail if sent by U.S. Mail, upon receipt by the sender of an electronic confirmation if sent by facsimile, upon delivery if hand delivered, and one (1) business day after deposit with any overnight courier service if sent in such manner. IN WITNESS WHEREOF, the undersigned have signed and sealed this document as of the day and year hereinafter set forth. Rev. 10/22/12 6 of 9 16A26 EXECUTED by BAREFOOT this 13 day of Nev e ,,,,, c ,2012. Witnesses: BAREFOOT BEACH CLUB CONDOMINIUM OWNERS ASSOCIATION, INC., a Florida non-profit corporation v.,* )4 Print Name: V I L.t 1 f\ u i .L t S By: / Print Name: eo(-t' t'tC C2cx'1E? Print Name: Title: I e: fe.y . 7g -€4C/4 le( C OA ('0.� � [CORPORATE SEAL] STATE OF FLORIDA ) ) SS COUNTY OF COLLIER ) CAY9 �--��I�' fry �� ,the Before me personally appeared e ASSOCIATION, , of B FOOT BEACH CLUBtONDOMINIUM OWNERS INC.,who i rsonaliy_kno_wmvto me or who produced as identification, and acknowledged to and before me that(s)he executed said instrument for the purposes therein expressed. WITNESS my hand and official seal in the State and County aforesaid this i 3 j of ,2012. 2.0.iwvva. _ "Kr"Kik DEANNAM.DAVIDSON j Notary Public, State of Florida ;,. !•■ ;,r MY COMMISSION#EE 06517 3 %a..r,1,-3= EXPIRES:April 3,2015 't • Rf •' Bonded Thru Notary Public Under ,ri,r Rev. 10/22/12 7 of 9 16A26 EXECUTED by the CONSERVANCY this day of mA �N-- , 2012. Witnesses: THE CONSERVANCY OF SOUTHWEST FLORIDA, INC.,a Florida non-profit corporation Print Name: P11,16, 2_ C(LUOV S rI By: ll� 9 / h re Gv / f he / Print Name: �� Print Name: N 7itic: CC—0 L), [CORPORATE SEAL] STATE OF FLORIDA ) ) SS COUNTY OF COLLIER ) Before me personally appeared c' ‘\&f_e_k,11. k\1L 1lt .1 ht,.the C- of THE CONSERVAN Y OF SOUTHWEST FLORIDA, INC., who is personally known to me or who produced as identification, and acknowledged to and before me that (s)he executed said instrument for the purposes therein expressed. WI ESS my hand and official seal in the State and County aforesaid this�, '` day of ,2012. ro'3`v.°Le� KATHLEEN P.ADAMS f ` t_� * MY COMMISSION#DD 940461 Notary Public, State of Florida um' EXPIRES:November 27,2013 'TFOC ,s`) Bonded Thru Budget Notary Services Rev. 10/22/12 8 of 9 16A26 I Accepted by COUNTY: ATTEST: dr, BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA By.. L AA■ . L , ' ♦ C - By 114LU\i , c"' ' clerk FRED W. COYLE, Chai an& Mat r Approved as to form and legal sufficiency: cfp �LBy: �� 1,v eidi Ashton-Cicko Managing Assistant County Attorney CP\10-ENS-00432\67 III Rev. 10/22/12 9 of 9 16A26 \ _ ,r .` . , 't x • .r 17, • �• r * -- ; . I c ii� o •\�. P"'- -- , ,iii' •% — `.44-- - �V_V__ 0 200 400 • siiA�I�I4 9-y vim`• - "MVOs SCALE FEET `� • *Spi- .40- $54 • \, .` . 1 o • r— 1 . ,;;+C oo _ ,14:~' OAS I. _ — .lira► Legend \b4>4,`- • -� — - — Edge of Mangrove Area \ �4 • ri Property Li \ r . County Property-No Mangrove T ) — itaMangrove Trimming widen arMit Cot my Property .. \ ■ PERMIT USE ONLY NOT FOR CONSTRUCTION November r08, 2012 2:12:37 p.m. Drawing: BBCA1 EXHIBIT 1.DWG Exhibit 1 County Property W. DEXTER BENDER �& ASSOCIATES, INC. ` ENfIRONMENTAL & MARINE CONSULTING �� FORT MYERS,, FL (239) 334-3680 16x26 ' n . , \ .., .... . ,■ ■ s ,fr _ 1\ ,, ,, ,, , , , .. ..„,„:\,. , . ti„,., 1• 1 r..-..- .:.._ \ .t ,. ., "' ,. 0� -,`moo...A ....t. ♦ ' - ' , .,rr> 0 200 400 • 1 9,.e, - F lsv# SCALE FEET \v/..# i • V's v-st ♦ I: f A.,;1' 8 IIIIII\ I% ,i/: .. t,1,\, , , . 1 t` Legend * + r„ ' • J` I — Edge of Mangrove Area S�� .1 1 --— Property Boundary Line Barefoot Property � � ! • j�j��j��A Mangrove Trimming within ,�. •- �I�,-�,� Barefoot Property 1 PERMIT USE ONLY, NOT FOR CONSTRUCTION November 08, 2012 2:12:37 p.m. Drawing: BBCA1 EXHIBIT 1.DWG Exhibit 2 W. DEXTER BENDER �� & ASSOCIATES, INC. Barefoot Property ENVIRONMENTAL MARINE CONSULTING !� P Y FORT MYERS, FL (.239) 334-3680 Is 16A264 EXHIBIT"3' Limitations on Trimming and Management 1. Staking and Notice. Prior to trimming, Barefoot will clearly delineate, by staking and flagging, the boundaries of the trimming areas within the Mangrove Forest. Collier County Code Enforcement Department shall be notified at least two weeks prior to any trimming. The County may request to be present during trimming. 2. Shoreline Trimming. The trimming will not extend more than 500 feet waterward as measured from the trunk of the most landward mangrove tree in a direction perpendicular from the buildings to the shoreline. Trimming will occur in the riparian mangrove fringe of the Mangrove Forest. Barefoot will trim no more than 115,097 square feet, or 2.64 acres. 3. Height Trimming_ a. Black and White Mangroves Black and white mangroves shall be trimmed to a height of no less than 20 feet. The height shall be measured at the base of the tree to the top of the canopy prior to trimming using a 20-foot measuring rod to verify the minimum trim height. Trimming of black and white mangroves will include topping and/or lateral limb removal. b. Red Mangroves No trimming will occur from the base of the tree to a height of 20 feet; however, Barefoot may laterally trim red mangroves above the height of 20 feet. The height shall be measured at the base of the tree to the top of the canopy prior to trimming using a measuring rod to verify the minimum lateral trim height of 20 feet. c. Trimming Schedule No more than 25% of the foliage of the mangroves in the mangrove forest may be trimmed each year. If the mangroves exhibit signs of significant stress, no maintenance trimming of the mangroves shall be performed until such time as it is determined that the mangroves have recovered from the prior trimming activities. 4. Access. Access to the proposed trimming areas will be on foot only. No vehicles or heavy machinery will be used or stored in the Mangrove Forest. Trimming will be conducted by utilizing ladders and hand held equipment only. No climbing spurs or spikes will be used. All cut material greater than'2n diameter will be removed by hand to an upland location for disposal. All other cuttings including leaves and twigs smaller than172 in diameter will be left in place to rejuvenate the soil. No herbicide or other chemical will be used for the purpose of removing leaves or limbs of a mangrove. Rev. 11/01/12 Page 1 of2 16A26 4 5. Trimming of Non-Mangrove Native Tree Species. Non-mangrove native trees, including buttonwood, cabbage palm, seagrape and strangler fig, shall be trimmed utilizing ANSI 300 trimming standards as a best management practice. For cabbage palms exceeding 20 feet in height, trimming shall be limited to the pruning of dead, or chlorotic, downward hanging fronds only (i.e., no trimming above the 9 o'clock and 3 o'clock positions) and no removal of green fronds. 6. Exotic and Invasive Species Removal. Barefoot shall conduct annual exotic and invasive species removal within the Mangrove Forest. Removal of exotics and nuisance vegetation (vines in particular) will take place prior to the initial and any subsequent mangrove trimming. Non-native, exotic and nuisance plants shall be killed in a manner consistent with current exotic vegetation treatment practices while reducing non-target damage to the maximum extent practicable. This may consist of hand clearing and "kill in place" methods. Large individual non-native trees (greater than 4" dbh) may be positioned in place. Cut stumps will be treated with an approved herbicide containing a visual tracer dye. All use of herbicides shall be applied by a licensed herbicide applicator in compliance with all labeling requirements. 7. Debris Removal. Barefoot shall perform monthly removal of debris within the Mangrove Forest as part of its regular maintenance activities. Rev. 10/22/12 Page 2 of 2