Item 8AAGENDA ITEM # 8A
APRIL 27, 2009
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Public Hearing and Approval to Purchase the Buckman Property
SUBMITTED BY: Jim Hanso
DATE: April 13, 2009
BACKGROUND: The Buckman Property is a tract of land consisting of approximately 350
acres of marsh property, including some uplands, located on the west side
of Atlantic Beach adjacent to the Intracoastal Waterway. The City of
Atlantic Beach has been attempting to purchase this property for over
three yeazs. An agreement has now been reached to purchase the property
for $1,015,000. "The City of Atlantic Beach's shaze of the purchase price
will be $185,000 plus $5,426.50 in closing costs. The remaining portions
come from an anonymous donor and the North Florida Land Trust.
Two appraisals were prepared for the value of the property by the Florida
Communities Trust in connection with a grant made to the City of Atlantic
Beach in 2007. Some problems exist with the title of this property relating
to the State of Florida's claim of ownership of sovereign lands versus the
claim of the sellers (heirs of the Buckman Estate) whose ownership of the
property precede current State legislation laying claim to a portion of this
property as well as many other pazcels along the Intracoastal Waterway.
The ownership issue had bearing on the appraisals of the property which
ranged in value from $185,000 to $530,000. The City of Atlantic Beach's
acquisition of the title is based upon the understanding that this dispute in
ownership with the State is unresolved. The issue is not easily resolvable
without litigation that is expected to take years and at least several
hundred thousand dollars in legal costs. There is no dispute that the City's
ownership would include all of the uplands acres and at least a portion of
the marsh property. The appraisers calculated that the Buckman Estate
owns at a minimum 77 acres of marsh and uplands and possibly the entire
350 acres. As the City anticipates using the property for passive
recreation, there should not be any disagreements with the State over use,
making the ownership issue largely moot.
A condition of the purchase for this property requires the City to grant a
"Deed of Conservation Easement" to the North Florida Land Trust which
would monitor the property in the future for compliance with the
Easement conditions. This Easement is required by the donors to ensure
that the property is permanently owned and maintained by Atlantic Beach
in accordance with the stated purposes. The Easement anticipates the City
developing the property for low impact public use including canoe/ kayak
AGENDA ITEM # 8A
APRIL 27, 2009
trails, overlooks, public docks, benches, signage and other items consistent
with passive public recreation. The Easement prohibits the construction of
buildings, roads, billboards, cell phone towers and private docks. A copy
of the proposed Deed of Conservation Easement is attached.
Florida Law requires that a public hearing be held before any decision is
made to purchase property and that the public be given at least a 30 day
notice of that hearing. A notice is properly published in the Florida Times
Union Shorelines Edition on Wednesday, March 25, 2009 advising of the
hearing at the City Commission meeting on April 27th.
BUDGET: Funds in the amount of $191,000 are budgeted for the Buckman property
in the Convention Development Tax Fund which allows use of that money
for the purchase and development of public recreation facilities. It is
anticipated that the City will spend money in the future for development of
public access to the marsh. A master plan for the development has not yet
been prepared, so an estimate of future development cost is unavailable.
Grant funds are expected to offset much of the cost. The maintenance
costs on the property are expected to be minimal unless and until the City
makes improvements for public access. Maintenance costs related to those
facilities can be estimated at that time.
RECOMMENDATION: Approve the purchase of the property and authorize the Mayor to sign all
documents related to the closing including the execution of the
Conservation Easement.
ATTACHMENTS: Deed of Conservation Easement
Map of property to be acquired
AGENDA ITEM # 8A
APRIL 27, 2009
DEED OF CONSERVATION EASEMENT
THIS GRANT DEED OF CONSERVATION EASEMENT is made this day of
Eby the City of Atlantic Beach, a municipal corporation, having an
address at 800 Seminole Road, Atlantic Beach, FL 32233 ("Grantors"), in favor of North
Florida Land Trust, a Florida non-profit corporation qualified to do business in Florida,
having an address at2029 N. 3~d St. ,Jacksonville Beach, FL 32250 ("Grantee").
WITNESSETH:
WHEREAS, Grantors are the sole owners in fee simple of certain real property in
the City of Atlantic Beach, Florida, more particularly described in Exhibit A attached
hereto and incorporated by this reference (the "Property"); and
WHEREAS, the property possesses natural, scenic, open space and recreational
values (collectively, "conservation values") of great importance to Grantors, the people of
Atlantic Beach and the people of the State of Florida; and
WHEREAS, in particular, the property contains abundant salt marshes and islands;
and
WHEREAS, the specific conservation values of the Property are further doc-
umented in an inventory of relevant features of the Property on file at the offices of
Grantee, which consists of reports, maps, photographs, and other documentation that
the parties agree provide, collectively, an accurate representation of the Property at the
time of this Grant and which is intended to serve as an objective, though nonexclusive,
information baseline for monitoring compliance with the terms of this grant; and
WHEREAS, Grantors intend that the conservation values of the Property be
preserved and maintained by permitting only those land uses on the Property that do not
significantly impair or interfere with them including, without limitation, those land uses
relating to passive recreation, including but not limited to canoeing, kayaking, fishing,
and boating; and
WHEREAS, Grantors further intend, as owners of the Property, to convey to
Grantee the right to preserve and protect the conservation values of the Property in
perpetuity; and
WHEREAS, Grantors, by majority vote of its City Commission approved
conveyance of this Conservation Easement and enter into this Conservation Easement
pursuant to its Home Rule Powers; and
WHEREAS, Grantee is a private, tax-exempt nonprofit organization and a qualified
organization under Sections 501(c)(3) and 170(h), respectively, of the Internal Revenue
Code of 1986, as amended, and the regulations promulgated thereunder (the "Internal
Revenue Code"), whose primary purpose is the conservation of land for natural, historic,
scenic, and recreational purposes;
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and pursuant to the law of Florida
and in particular Section 704.06, Florida Statutes, Grantors hereby voluntarily grant and
convey to Grantee a Conservation Easement in perpetuity over the Property of the
nature and character and to the extent hereinafter set forth ("Easement").
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APRIL 27, 2009
1. Purpose. It is the purpose of this Easement to assure that the Property will be
retained forever [predominantly] in its natural and scenic condition and to prevent any
use of the Property that will [significantly] impair or interfere with the conservation values
of the Property. Grantors intend that this Easement will confine the use of the Property
to such activities, including, without limitation, those involving public passive recreation,
as are not inconsistent with the purpose of this Easement.
2. Rights of Grantee. To accomplish the purpose of this Easement the following
rights are conveyed to Grantee by this Easement:
(a) To preserve and protect the conservation values of the Property;
(b) To enter upon the Property at reasonable times and to conduct an annual
inspection in order to monitor compliance with and otherwise enforce the terms of
this Easement in accordance with Section 6, such entry shall be upon prior
reasonable notice to Grantors, and Grantee shall not in any case unreasonably
interfere with Grantor's use and quiet enjoyment of the Property; and
(c) To prevent any activity on or use of the Property that is inconsistent with
the purpose of this Easement and to require the restoration of such areas or
features of the Property that may be damaged by any inconsistent activity or use,
pursuant to the remedies set forth in Section 6.
3. Prohibited Uses. Any activity on or use of the Property inconsistent with the
purpose of this Easement is prohibited. Without limiting the generality of the foregoing,
the following activities and uses are expressly prohibited:
(a) Constructing or placing buildings, roads, billboards, cell phone towers,
electrical transmission facilities, pipelines, public transportation facilities, or
other structures, except as provided in Paragraph 4.
(b) Dumping or placing soil or other substances or materials as landfill, or
dumping or placing trash, waste, or unsightly or offensive materials.
(c) Removing or destroying trees, shrubs, or other vegetation except:
(1) Where a tree is dead, diseased, or a hazard to humans,
animals, or property; or
(2) Where the removal or destruction of vegetation is necessary to
promote biodiversity, such as to eradicate non-native, nuisance species; or
(3) Where removal or destruction of vegetation is pursuant to a
conservation management plan, which is approved by Grantee
and subject to the permitting requirements of the St. Johns River Water
Management District;
or
(d) Excavating, dredging, or removing limerock, peat, gravel, soil,
rock, or other material substance in such a manner as to affect the surface.
(e) Permitting activities detrimental to drainage, flood control, water
conservation, water quality, erosion control, soil conservation, or fish and
wildlife habitat preservation, except as provided in Paragraph 4;
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AGENDA ITEM # 8A
APRIL 27.2009
(f) Planting any plants that are generally considered non-native, invasive,
nuisance species with the potential to disrupt the ecological function of infested
lands. These plants may be defined by reference to the lists published by the
Florida Exotic Pest Plant Council, or it's successor organization, and shall include
the Category I and II taxa. Grantor shall work with Grantee to remove any such
non-native, invasive, nuisance species.
(g) Permitting acts or uses detrimental to any parts of the property found to
have historical, archaeological, or cultural significance.
(h) Permitting subdivision or partition of the Property.
(i) Constructing private docks on the property by adjacent landowners.
4. Reserved Rights. Grantors reserve to themselves, and to their personal
representatives, heirs, successors, and assigns, all rights accruing from their ownership
of the Property, including the right to engage in or permit or invite others to engage in, all
uses of the Property that are not expressly prohibited herein and are not inconsistent
with the purpose of this Easement. [Without limiting the generality of the foregoing, and
subject to the terms of paragraph 3, the following rights are expressly reserved:]
(a) constructing of trails, overlooks, benches and appropriate signage consistent
passive recreation;
(b) all activities related ecological restoration, such as replanting marshes,
dredging silted canals, restoring channels and uplands;
(c) the right to conduct any activities that would yield wetland mitigation credits
and the right to sell those credits;
(d)the right to mark water trails for canoeing and kayaking.
5. Notice and Approval.
5.1 Notice of Intention to Undertake Certain Reserved Actions. The purpose of
requiring Grantors to notify Grantee prior to undertaking certain reserved activities
referenced in paragraph 4 is to afford Grantee an adequate opportunity to monitor the
activities in question to ensure that they are designed and carried out in a manner that is
not inconsistent with the purpose of this Easement. Whenever notice is required
Grantors shall notify Grantee in writing not less than 30 days prior to the date Grantors
intend to undertake the activity in question. The notice shall describe the nature, scope,
design, location, timetable, and any other material aspect of the proposed activity in
sufficient detail to permit Grantee to make an informed judgment as to its consistency
with the purpose of this Easement.
5.2 Grantee's Comment Period. Grantee shall provide in writing within 20
business days of receipt of Grantors' written request any comments regarding the
proposed activities. Grantee's approval may be withheld only upon a reasonable
determination by Grantee that the action as proposed would be inconsistent with the
purpose of this Easement.
6. Grantee's Remedies.
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APRIL 27, 2009
6.1 Notice of Violation; Corrective Action. If Grantee determines that a violation
of the terms of this Easement has occurred or is threatened, Grantee shall give written
notice to Grantors of such violation and demand corrective action sufficient to cure the
violation and, where the violation involves injury to the Property resulting from any use or
activity inconsistent with the purpose of this Easement, to restore the portion of the
Property so injured to its prior condition in accordance with a plan approved by Grantee.
6.2 Injunctive Relief. If Grantors fail to cure the violation within 30 days after
receipt of notice thereof from Grantee, or under circumstances where the violation
cannot reasonably be cured within a 30 day period, fail to begin curing such violation
within the 30 day period, or fail to continue diligently to cure such violation until finally
cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction
to enforce the terms of this Easement, to enjoin the violation, as necessary, by tempo-
rary or permanent injunction, and to require the restoration of the Property to the
condition that existed prior to any such injury.
6.3 Scope of Relief. Grantee's rights under this section 6 apply equally in the
event of either actual or threatened violations of the terms of this Easement. Grantors
agree that Grantee's remedies at law for any violation of the terms of this Easement are
inadequate and that Grantee shall be entitled to the injunctive relief described in
Paragraph 6.2, both prohibitive and mandatory, in addition to such other relief to which
Grantee may be entitled, including specific performance of the terms of this Easement,
without the necessity of proving either actual damages or the inadequacy of otherwise
available legal remedies. Grantee's remedies described in this section 6 shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in
equity.
6.4 Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing
the terms of this Easement against Grantor, including, without limitation, costs and
expenses of suit and reasonable attorneys' fees, and any costs of restoration
necessitated by Grantor's violation of the terms of this Easement shall be borne by
Grantor; provided, however, if Grantor ultimately prevails in a judicial enforcement action
than the Grantee will ,without limitation, bear the costs and expenses of the suit and
reasonable attorneys' fees.
6.5 Forbearance. Forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any term of this Easement by Grantor shall not
be deemed or construed to be a waiver by Grantee of such term or of any subsequent
breach of the same or any other term of this Easement or of any of Grantee's rights
under this Easement. No delay or omission by Grantee in the exercise of any right or
remedy upon any breach by Grantor shall impair such right or remedy or be construed
as a waiver.
6.6 Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantee to bring any action against Grantor for any injury to or
change in the Property resulting from causes beyond Grantor's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent action
taken by Grantor under emergency conditions to prevent, abate, or mitigate significant
injury to the Property resulting from such causes.
7. Costs, Liabilities, Taxes, and Environmental Compliance.
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APRIL 27, 2009
7.1 Costs, Legal Requirements, and Liabilities. Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the
ownership, operation, upkeep, and maintenance of the Property, including the
maintenance of adequate liability insurance coverage. Grantor remains solely
responsible for obtaining any applicable governmental permits and approvals for any
construction or other activity or use permitted by this Easement, and all such
construction or other activity or use shall be undertaken in accordance with all applicable
federal, state, and local laws, regulations, and requirements. Grantor shall keep the
Property free of any liens arising out of any work performed for, materials furnished to, or
obligations incurred by Grantor.
7.2 Remediation. If, at any time, there occurs, a release in, on, or about the
Property of any substance now or hereafter defined, listed, or otherwise classified
pursuant to any federal, state, or local law, regulation, or requirement as hazardous,
toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful
or threatening to human health or the environment, Grantor agrees to take all steps
necessary to assure its containment and remediation' including any cleanup that may be
required, unless the release was caused by Grantee, in which case Grantee shall be
responsible therefor.
7.3 Control. Nothing in this Easement shall be construed as giving rise, in the
absence of a judicial decree, to any right or ability in Grantee to exercise physical or
managerial control over the day-to-day operations of the Property, or any of Grantor's
activities on the Property, or otherwise to become an operator with respect to the
Property within the meaning of The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA"), 42 USC sec. 9601-
9675, and Chapters 376 and 403, Florida Statutes (2008) as amended.
7.4 Hold Harmless. Grantor hereby releases and agrees to hold harmless,
indemnify, and defend Grantee and its members, directors, officers, employees, agents,
and contractors and the heirs, personal representatives, successors, and assigns of
each of them (collectively "Indemnified Parties") from and against any and all liabilities,
penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims,
demands, orders, judgments, or administrative actions, including, without limitation,
reasonable attorneys', mediation, and/or arbitration fees, arising from or in any way
connected with: (1) injury to or the death of any person, or physical damage to any
property, resulting from any act, omission, condition, or other matter related to or
occurring on or about the Property, regardless of cause, unless due solely to the
negligence of any of the Indemnified Parties; (2) the violation or alleged violation of, or
other failure to comply with, any state, federal, or local law, regulation, or requirement,
including, without limitation, CERCLA and Chapters 376 and 403, Florida Statutes
(2008),by any person other than any of the Indemnified Parties, in any way affecting,
involving, or relating to the Property.
8. Extinguishment and Condemnation.
8.1 Extinguishment. If circumstances arise in the future that render the purpose
of this Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction. The amount of the proceeds to which Grantee shall be entitled will be a
prorated amount of the settlement determined by multiplying the portion of the purchase
price of the property paid by or through Public Trust Environmental Legal Institute of
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AGENDA ITEM # 8A
APRIL 27, 2009
Florida divided by the total purchase price for the property, after the satisfaction of prior
claims, from any sale, exchange, or involuntary conversion of all or any portion of the
Property subsequent to such termination or extinguishment.
8.2 Condemnation. If all or any part of the Property is taken by exercise of the
power of eminent domain or acquired by purchase in lieu of condemnation, whether by
public, corporate, or other authority, so as to terminate this Easement, in whole or in
part, Grantor and Grantee shall act jointly to recover the full value of the interests in the
Property subject to the taking or in lieu purchase and all direct or incidental damages
resulting therefrom. All expenses reasonably incurred by Grantor and Grantee in
connection with the taking or in lieu purchase shall be paid out of the amount recovered_
8.3 Application of Proceeds. Grantee shall use any proceeds received under
the circumstances described in this section 8 in a manner consistent with its
conservation purposes, which are exemplified by this grant.
9. Assignment. This Easement is transferable, but Grantee may assign its rights
and obligations under this Easement only to an organization that is a qualified
organization at the time of transfer under Section 170(h) of the Internal Revenue Code
(or any successor provision then applicable), and authorized to acquire and hold
conservation easements under Section 704.06, Florida Statutes (2008),or any successor
provision then applicable) or the laws of the United States. As a condition of such
transfer, Grantee shall require that the conservation purpose that this grant is intended to
advance continue to be carried out. Grantee agrees to give written notice to Grantor of
an assignment at least 20 days prior to the date of such assignment and must obtain the
written consent of Grantor to the assignment, which consent shall not be unreasonably
withheld.
10. Subsequent Transfers. Grantor agrees to incorporate the terms of this
Easement by reference in any deed or other legal instrument by which they divest
themselves of any interest in all or a portion of the Property, including, without limitation,
a leasehold interest. Grantor further agrees to give written notice to Grantee of the
transfer of any interest at least 20 days prior to the date of such transfer and must obtain
the written consent of Grantee to the assignment, which consent shall not be
unreasonably withheld.
11. Estoppel Certificates. Upon request by Grantor, Grantee shall within 20 days
execute and deliver to Grantor, or to any party designated by Grantor, any document,
including an estoppel certificate, which certifies, to the best of Grantee's knowledge,
Grantor's compliance with any obligation of Grantors contained in this Easement or
otherwise evidences the status of this Easement. Such certification shall be limited to the
condition of the Property as of Grantee's most recent inspection. If Grantor requests
more current documentation, Grantee shall conduct an inspection, at Grantor's expense,
within 30 days of receipt of Grantor's written request therefor.
12. Notices. Any notice, demand, request, consent, approval, or communication
that either party desires or is required to give to the other shall be in writing and either
served personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: City of Atlantic Beach attention City Manager.
800 Seminole Rd.
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AGENDA ITEM # 8A
APRIL 27, 2009
Atlantic Beach. Florida 32233
To Grantee: North Florida Land Trust
2029 N. 3~d St.
Jacksonville Beach. Florida 32250
or to such other address as either party from time to time shall designate by written
notice to the other.
13. Recordation. Grantee shall record this instrument in timely fashion in the
official records of Duval County, Florida, and may re-record it at any time as may be
required to preserve its rights in this Easement.
14. General Provisions.
14.1 Controlling Law. The interpretation and performance of this Easement shall
be governed by the laws of the State of Florida.
14.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the Grantee to
effect the purpose of this Easement and the policy and purpose of Section 704.06,
Florida Statutes (2008)If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the purpose of this Easement that would render the pro-
vision valid shall be favored over any interpretation that would render it invalid.
14.3 Severability. If any provision of this Easement, or the application thereof to
any person or circumstance, is found to be invalid, the remainder of the provisions of this
Easement, or the application of such provision to persons or circumstances other than
those as to which it is found to be invalid, as the case may be, shall not be affected
thereby.
14.4 Entire Agreement. This instrument sets forth the entire agreement of the
parties with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
14.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion
of Grantor's title in any respect.
14.6 Joint Obligation. The obligations imposed by this Easement upon Grantor
shall be joint and several.
14.7 Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon, and inure to the benefit of, the parties hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue
as a servitude running in perpetuity with the Property. The terms "Grantor" and
"Grantee," wherever used herein, and any pronouns used in place thereof, shall include,
respectively, the above-named Grantor and their personal representatives, heirs,
successors, and assigns, and the above-named Grantee and its successors and
assigns.
14.8 Termination of Rights and Obligations. A party's rights and obligations
under this Easement terminate upon transfer of the party's interest in the Easement or
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AGENDA ITEM # 8A
APRIL 27, 2009
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
14.9 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
14.10 Counterparts. The parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by both parties; each counterpart
shall be deemed an original instrument as against any party who has signed it. In the
event of any disparity between the counterparts produced, the recorded counterpart
shall be controlling.
15. Ownership and Liabilities. It is understood and acknowledged by Grantee
and Grantor that there are multiple legal issues to the claim of title by the seller of this
property (the Buckman-Pritchard Trust) and that these legal issues remain after the
Grantee has acquired the property, particularly these involve claims of the State of
Florida to rights or direct ownership of a portion of the property. It is not intended by
anything herein that Grantor shall be obligated to enter into, or to defend, litigation with
the State of Florida or any other entity in the future if any disputes arise as to the use or
ownership of the property described in this Easement.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantors and Grantee have set their hands on the day
and year first above written.
Grantor:
Grantee: North Florida Land Trust
by
its President
[Acknowledgments]
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SCHEDULE OF EXHIBITS
A. Legal Description of Property Subject to Easement
B. Site Description/Map
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EXHIBIT B
Buckman Acquisition Atlantic Beach, Florida
Buckman Trust City of Atlantic Beach Geographical Information System
Community Development Department
Uplands subject to acquisition 'Tax Parcels Planning & zon;ng Uivislon, GIS Section
~~' Submerged lands subject to acquisition ®Intercoastal Watervvay Soo Seminole Road P: goq.agq.58oo
r___ti _ Atlantic Beach, FL. 333 F: 9o4•zi7.5g45
Property subject to exception L--_ I City Limits www.coab•us
r.. •~~~y
Property previously transferred to JEA ~..,...~ US Government Meander Line
Plat Book 18, Pa @ 34 6uckman_acquisition (o~3aoo9); revised Apri(i3, aoog (elh)
9 source: US BLM, FL DEP, CO/PAO, COAB