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Agenda 02/10/2009 Item #16D 5 Agenda Item No. 16D5 February 10, 2009 Page 1 of 14 EXECUTIVE SUMMARY Recommend that the Board of County Commissioners approve and authorize the Chairman to sign revised Use Agreement No. U-0344 between Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and Collier County for access to Delnor-Wiggins State Park. OBJECTIVE: To obtain Board approval of Use Agreement No, U-0344 for Collier County to access Delnor-Wiggins State Park. CONSIDERATIONS: Wiggins Pass is scheduled to be dredged in January 2009. In order to facilitate this dredging, State Park access is desirable, The attached Use Agreement No. U-0344 provides authorization for Collier County to access the State Park for the dredging of Wiggins Pass, This original Use Agreement was approved by the Board of County Commissioners on December 16, 2008 Item No. 16D1. Once approved and executed by the Board of County Commissioners the use agreement was forwarded to the State of Florida Department of Environmental Protection (FDEP). FDEP then contacted our office with verbiage that had been left out of their original Use Agreement. The additional verbiage has been highlighted in red on the attached document. The revised language does not change the County's obligation under the agreement and the agreement stipulations must also be adhered to by County contractors. FISCAL IMPACT: There is no cost associated with approval of this access agreement. The Wiggins Pass Dredging project will be paid from Tourist Tax dollars. GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan related to this action. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office. This item is not quasi-judicial, and as such ex parte disclosure is not required. This item requires majority vote only. This item is legally sufficient for Board action. - CMG RECOMMENDATION: That the Board of County Commissioners approve and authorize the Chairman to sign the revised Use Agreement No. U-0344 between Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and Collier County. PREPARED BY: Gail Hambright, CZM .-- Page I of I Agenda Item No. 16D5 February 10, 2009 Page 2 of 14 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16D5 Item Summary: Recommend that the Board of County Commissioners approve and authorize the Chairman to sIgn revised Use Agreement No. U -0344 between Board of Trustees of the Internal Improvement Trust Fund of the State af Florida and Collier County for access to Delnor- Wiggins State Park for Wiggins Pass dredging Meeting Date: 2/10/200990000 AM Approved By Colleen Greene Assistant County Attorner Date County Attorney County Attorney Office 1127120098:47 AM Approved By Gary McAlpin Costal Project Manager Date Public Services Coastal Zone Management 1/27/20098:57 AM Approved By Kathy Carpenter Executive Secretary Date Public Services Public Services Admin. 1/27/200910:46 AM Approved By Marla Ramsey Public Services Administrator Date Public Services Public Services Admin. 1/27/20092:56 PM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 1/28/20099:35 AM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 1/281200910:52 AM A pprovl'd Ry Mark Isackson 6uoget Analyst Date County Manager's Office Office of Management & Budget 1/29/20092:55 PM Approved By James V. Mudd County Manager Date Board of County County Manager's Office 1/29/20094:02 PM Commissioners file://C:\AgendaTest\Export\ 123-February%20 1 0,%202009\ 16,%20CONSENT%20AGEND... 2/4/2009 Agenda Item No. 16D5 February 10, 2009 Page 3 of 14 OAUI BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA USE AGREEMENT Use Agreement No. U-0344 THIS USE AGREEMENT is hereby granted this _____ day of 2009 I by the BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, hereinafter referred to as the "GRANTOR", through its lawfully designated agent, the DIVISION OF STATE LANDS, State of Florida Department of Environmental Protection to COLLIER COUNTY, FLORIDA, hereinafter referred to as "GRANTEE" . WHEREAS, the GRANTEE desires to enter and use state-owned uplands to dredge Wiggins Pass and dispose of the material off shore of Barefoot Beach Park, between R-ll.4 and R-14.2 as permitted in Permit No. 0142538-006-EM. WITNESSETH: That for the faithful and timely performance of and compliance with the terms and conditions stated herein, GRANTOR does hereby grant to GRANTEE, a use agreement on state-owned lands described below, to wit: (See Attached Exhibit "A") subject to the following terms and conditions: 1. DELEGATIONS OF AUTHORITY: GRANTOR'S responsibilities and obligations herein shall be exercised by the Division of State Lands, State of Florida Department of Environmental Protection. 2. COMMENCEMENT: This use agreement and consent shall commence on the effective date of this use agreement and shall expire 4/15/2009. 3. EXTENT OF AGREEMENT: This use agreement covers the use of state- owned uplands in the upland area more particularly described in Exhibit "A" attached hereto ("project area"), only for the purpose of dredging Wiggins Pass and no other use or activity shall be allowed ("project") . 4. USE OF PROPERTY AND UNDUE WASTE: This use agreement shall be non-exclusive. GRANTOR, or its duly authorized agent, shall retain Agenda Item No. 16D5 February 10, 2009 Page 4 of 14 the right to enter the project area or engage in management activities not inconsistent with the use herein provided for and shall retain the right to grant compatible uses of the project area subject to this use agreement to third parties during the term of this use agreement. GRANTEE shall not comrni. t undue waste to the project area. Upon termination or expiration of this use agreement GRANTEE shall maintain or restore, as necessary, the project area to substantially the same condition as it was upon the effective date of this use agreement. GRANTEE shall not remove water from any source on state lands including, but not l~ited to, a water course, reservoir, spring, or well, without the prior written approval of the GRANTOR. GRANTEE shall clear, remove and pick up all debris including, but not l~ited to, mud containers, oil containers, papers, discarded tools and trash foreign to the work locations and dispose of the same in a satisfactory manner as to leave the work locations clean and free of any such debris. GRANTEE shall not dispose of any contaminants including, but not limited to, hazardous or toxic substances, chemicals or other agents produced or used in GRANTEE'S operations on the project area or on any adjacent state land or in any manner not permitted by law. Upon termination or expiration of this use agreement and GRANTEE shall remove all facilities and related structures erected at GRANTEE'S expense. If the project area is under lease to another agency GRANTEE shall obtain the consent of such agency prior to engaging in any use of the real property authorized herein. 5. RIGHT OF INSPECTION: GRANTEE hereby agrees that GRANTOR, or its duly authorized agent, shall have the right at any and all times to inspect the works and operation of GRANTEE in any matter pertaining to this use agreement. 6. PROPERTY RIGHTS: GRANTEE agrees and it is hereby expressly stipulated that this use agreement and consent constitutes permissive use only and the placing of facilities and related structures upon Page 2 of 12 Pages Use Agreement No. u-0344 R/ll/200B ------ Agenda Item No. 16D5 February 10, 2009 Page 5 of 14 public property pursuant to this use agreement shall not operate to create or vest any property right in said holder and shall not conflict with the conservation, protection and enhancement of said lands. 7. LIABILITY: Each party is responsible for all personal injury and property damage attributable to the negligent acts or omissions of that party and the officers, employees and agents thereof. Nothing herein shall be construed as an indemnity or a waiver of sovereign immunity enjoyed by any party hereto, as provided in Section 768.28, Florida Statutes, as amended from time to tDme, or any other law providing limitations on claims. 8. ASSIGNMENT: This use agreement shall not he assigned in whole or in part without the prior written consent of GRANTOR. Any assignment made either in whole or in part without the prior written consent of GRANTOR shall be void and without legal effect. 9. CUTTING OF TREES: The cutting or removal of trees on the state land covered by this use agreement is prohibited. In the event that in the course of its operations it shall become necessary for GRANTEE to cut or remove trees, such trees shall be cut or removed only after prior written approval has been received from GRANTOR through its representative and in accordance with the directions lawfully given by its representative, and title to all portions of trees so felled or removed shall be and remain in GRANTOR. All brush and refuse that is necessarily cut in the course of GRANTEE'S operations shall he handled and disposed of in such a manner as to minimize the danger of fires, all in accordance with said regulations and the directions of the representative of GRANTOR. Trees subject to this provision shall be, except for cypress trees, three inches in diameter or greater in size at a height of forty-eight inches from the ground at the base of the tree. Cypress trees subject to this provision shall be any cypress tree of two inches in diameter or greater in size at a height of forty-eight inches from the ground at the base of the cypress tree. Page 3 of 12 Pages Use Agreement No. U-0344 R/ll/200S Agenda Item No. 16D5 February 10, 2009 Page 6 of 14 However, in no event shall the indiscriminate cutting down, running over or destruction of trees or vegetation of any size be allowed. 10. TELEPHONE LINES, DITCHES AND FENCES: All telephone lines, ditches, and fences located within or immediately outside the exterior boundaries of the project area shall be protected so far as possible in the conduct of GRANTEE'S operations, and, if damaged by reason of said operations, they shall be repaired immediately by and at the expense of GRANTEE. The representative of GRANTOR may, when in his or her judgment it is necessary to avoid risk of damage by said operations, require GRANTEE to move any such telephone lines or fence from one location to an adjacent location without compensation. 11. ROADS, TRAILS, FIRE LINES: Roads, trails, and fire lines shall at all times be kept free of brush and debris resulting from GRANTEE'S operations hereunder. Any road, trail, or firebreak used by GRANTEE in connection with the permitted operations that is damaged (beyond what would be ordinary wear and tear without such use) shall be repaired promptly by GRANTEE at its expense to its original conditions. GRANTEE shall not build any roads or trails without prior written approval of GRANTOR. If any live trees are damaged through carelessness or by fire caused by the employees or contractors of GRANTEE, GRANTEE shall fully compensate GRANTOR for the damage caused thereby. 12. PREVENTION OF FIRES: GRANTEE agrees to use every reasonable precaution including, but not limited to, Division of Forestry, Dept. (DOF) standards for fire safety on state forest lands, to prevent the occurrence of forest fires on state lands and to promptly notify the DOF office or nearest of any such occurrence. In the event a forest fire shall commence in the vicinity of GRANTEE'S operations during the period such operations are being conducted, or immediately thereafter, it shall be conclusively presumed that such fire occurred as a result of the operations of GRANTEE, unless the contrary is clearly demonstrated to the satisfaction of GRANTOR by GRANTEE, and GRANTEE hereby agrees to pay GRANTOR for any and all damage caused to state Page 4 of 12 Pages Use Agreement No. U-0344 R/ll/200B ------ Agenda Item No. 16D5 February 10, 2009 Page 7 of 14 lands by such fire, including but not l~ited to, costs to suppress such fire; costs for the damage to the timber, trees or other forest products (whether standing, cut or fallen); and costs for the damaqe to any improvements or personal property thereon, caused by or as a result of such fire. GRANTEE shall, at its expense, replant, restock or reforest any area affected by reason of such fire to the satisfaction of GRANTOR or its LESSEE. 13. MINERAL RIGHTS: This use agreement does not cover petroleum or petroleum products or minerals and does not give the right to the GRANTEE to drill for or develop the same. 14. NON-DISCRIMINATION: GRANTEE shall not discriminate against any individual because of that individual's race, color, religion, sex, national origin, age, handicaps, or marital status with respect to any activity occurring within the project area or upon lands adjacent to and used as an adjunct of the lands covered by this use agreement. 15. BEST MANAGEMENT PRACTICES: GRANTEE shall Lmplement applicable Best Management Practices in compliance with paragraph 18-2.018(2) (h), Florida Administrative Code, for all of the activities conducted under this use agreement, which have been selected, developed, or approved by GRANTOR or other land managing agencies for the protection and enhancement of the state land covered by this use agreement. 16. ARCHAEOLOGICAL AND HISTORIC SITES: GRANTEE hereby covenants and agrees that execution of this use agreement in no way affects any of the parties' obligations pursuant to Chapter 267, Florida Statutes. The collection of artifacts or the disturbance of archaeological and historic sites on state-owned lands is prohibited unless prior authorization has been obtained from the State of Florida Department of State, Division of Historical Resources. 17. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES: Fee title to the land included in this use agreement is held by GRANTOR. GRANTEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property vested in the GRANTOR including, but not limited to, mortgages or construction Page 5 of 12 Pages Use Agreement No. U-0344 R/ll/2008 ------ Agenda Item No. 16D5 February 10, 2009 Page 8 of 14 liens against the real property covered by this use agreement or against any interest of GRANTOR therein. 18. BREACH OF COVENANTS, TERMS, or CONDITIONS: Should GRANTEE breach any of the covenants, terms, or conditions of this use agreement, GRANTOR shall give written notice to GRANTEE to remedy such breach within thirty days of such notice. In the event GRANTEE fails to remedy the breach to the satisfaction of GRANTOR within thirty days of receipt of written notice, GRANTOR may either terminate this use agreement and recover from GRANTEE all damages GRANTOR may incur by reason of the breach, or maintain this use agreement in full force and effect and exercise all rights and remedies herein conferred upon GRANTOR, 19. PARTIAL INVALIDITY: If any term, covenant, condition or provision of this use agreement shall be ruled by a court of competent jurisdiction, to be invalid, void, or unenforceable, the remainder shall remain in full force and effect and shall in no way be affected, ~aired or invalidated. 20. NO WAIVER OF BREACH: The failure of GRANTOR to insist in anyone or more instances upon strict performance of anyone or more of the covenants, te~s and conditions of this use agreement shall not be construed as a waiver of such covenants, terms and conditions, but the same shall continue in full force and effect, and no waiver of GRANTOR of anyone of the provisions hereof shall in any event be deemed to have been made unless the waiver is set forth in writing, signed by GRANTOR. 21. SOVEREIGNTY SUBMERGED LANDS: This use agreement does not authorize any use of lands located waterward of the mean or ordinary high water line of any lake, river, stream, creek, bay, estuary, or other water body or the waters or the air space thereabove. 22. DUPLICATE ORIGINALS: This use agreement is executed in duplicate originals each of which shall be considered an original for all purposes. Page 6 of 12 Pages Use Agreement No. u-0344 R/ll/2008 ------ Agenda Item No. 16D5 February 10, 2009 Page 9 of 14 23. ENTIRE UNDERSTANDING: This use agreement sets forth the entire understanding between the parties and shall only be amended with the prior written approval of GRANTOR. 24. TIME: Time is expressly declared to be of the essence of this use agreement. 25. INSURANCE REQUIREMENTS: "Each party shall be liable for its own actions and negligence and, to the extent permitted by law, Collier County shall indemnify, defend and hold harmless GRANTOR, State of Florida Department of Environmental Protection, and State of Florida against any actions, cla~ or damages arising out of Collier County's negligence in connection with this Agreement. The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the li~ts set forth in Florida Statutes, Section 768.28, nor shall the same be construed to constitute agreement by either party to indemnify the other party for such other party's negligent, willful or intentional acts or omissions. 26. RIGHT OF AUDIT: GRANTEE shall make available to GRANTOR all financial and other records relating to this use agreement and GRANTOR shall have the right to audit such records at any reasonable time. This right shall be continuous until this use agreement expires or is terminated. This use agreement may be terminated by GRANTOR should GRANTEE fail to allow public access to all documents, papers, letters or other materials made or received in conjunction with this use agreement, pursuant to Chapter 119, Florida Statutes. 27. NOTICE: All notices given under this use agreement shall be in writing and shall be served by certified mail including, but not limited to, notice of any violation served pursuant to Section 253.04, Florida Statutes, to the last address of the party to whom notice is to be given, as designated by such party in writing. The GRANTEE and the GRANTOR hereby designate their address as follows: GRANTOR: State of Florida Department of Environmental Protection Division of State Lands Bureau of Public Land Administration, M. S. 130 3800 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Page 7 of 12 Pages Use Agreement No. U-0344 R/1l/200B Agenda Item No. 16D5 February 10, 2009 Page 10 of 14 GRANTEE: Collier County, Florida 3300 Santa Barbara Blvd. Naples, Florida 34116 2B. COMPLIANCE WITH LAWS: GRANTEE agrees that this use agreement is contingent upon and subject to GRANTEE obtaining all applicable permits and complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida or the United States or of any political subdivision or aqency of either. 29. GOVERNING LAW: This use agreement shall be governed by and interpreted according to the laws of the State of Florida. 30. SECTION CAPTIONS: Articles, subsections and other captions contained in this use agreement are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this use agreement or any provisions thereof. 31. TITLE DISCLAIMER: GRANTOR does not warrant or guarantee any title, right or interest in or to the project area. 32. SPECIAL CONDITIONS: The following special conditions shall apply to this use agreement: A. GRANTEE shall meet with the park manager or his/her designee regarding the amount of parking spaces and permits for entering the park after park operating hours. The park manager or his/her designee will decide the exact number of the parking spaces and determine terms and conditions of entering the park after hours. B. GRANTEE shall obey all park management rules with special regard to vehicular traffic and park visitors. GRANTEE'S employees, agents, and contractors who come to the park in any matters related to this use agreement must stop at the ranger station upon entering the park. C. GRANTEE shall work cooperatively with the park manager or his/her designee and the park biologists to resolve issues regarding safety, access, or environmental concerns. D. The park manager or his/her designee shall have the ability to stop the project at any time to ensure public safety or for failure of GPANTEE to meet any of the terms and conditions of this use agreement. E. GRANTEE'S local representative or manager of this project Page 8 of 12 Pages Use Agreement No. U-0344 R/ll/2008 ------ Agenda Item No. 16D5 February 10, 2009 Page 11 of 14 shall meet with the park manager or his/her designee each day during the construction phase of the project. The time of such meeting shall be agreed to by the park manager and the representative prior to commencement af construction. F. A 70 foot buffer will be erected around the archeological site as designated by the park manager to ensure against disturbance. Wooden stakes with flagging will mark the buffer boundaries. / Page 9 of 12 Pages Use Agreement No. U-0344 R/ll/200B ------ Agenda Item No. 16D5 February 10, 2009 Page 12 of 14 IN WITNESS WHEREOF, the parties have caused this use agreement to be executed on the day and year first above written. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA Print/Type Witness Name By: (SEAL) GLORIA C. BARBER, OPERATIONS AND MANAGEMENT CONSULTANT MANAGER, BUREAU OF PUBLIC LAND ADMINISTRATION, DIVISION OF STATE LANDS, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Wi tness Witness Print/Type Witness Name "GRANTOR" STATE OF FLORIDA COUNTY OF LEON The foregoing instrument was acknowledged before me this day of , 2009, by Gloria C. Barber, as Operations and ---- Management Consultant Manager, Bureau of Public Land Administration, State of Florida Department of Environmental Protection, who is personally known to me or produced as identification. Notary Public, State of Florida Print/Type Notary Name Commission Number: Commission Expires: Approved as to Form and Legality By: DEP Attorney Page 10 of 12 Pages Use Agreement No. u-0344 R/ll/ZOOS Agenda Item No. 1605 February 10,2009 Page 13 of 14 COLLIER COUNTY. FLORIDA By its Board of County Commissioners Witness By: _,_ (SEAL) Print/Type Witne~s Name print/Type Name wi tness Title: Print/Type Witness Name OFFICIAL SEAL Approved as to form & tigal sufficiency @ Attest By: Colie$n Grwrta, ABtJistlU'lt County AttOT'OiY Print/Type Name Title: "GRANTEE" STATE OF FLORIDA COUNTy OF COLLIER The foregoing instrument was acknowledged before me this day of . 2009, by and , as and , respectively, on behalf of the Board of County Commissioners for Collier County, Florida. They are personally known to me or who produced as identification. Notary Public, State of Florida Print/Type Notary Name Commission Number: Commission Expires: Page 11 of 12 Pages Use Agreement No. ~ R!11/200S DESCRIPTION OF REAL PROPERTY SUBJECT TO THIS USE AGREEMENT EXHIBIT "A" Page 12 of 12 Pages Use Agreement No. U-0344 R/ll/200S ------ Agenda Item No. 1605 February 10, 2009 Page 14 of 14