Amended Agenda Item 4G- MOU Dutton Island Preserve AMENDED AGENDA ITEM 4G
OCTOBER 24,2016
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Memorandum of Understanding Between the City of Jacksonville and
the City of Atlantic Beach for Joint Operation of Dutton Island
Preserve
SUBMITTED BY: Donald D. Jacobovi , I.
Public Works Director
DATE: September 26, 2016
BACKGROUND: The City of Jacksonville and the City of Atlantic Beach separately own
real property collectively comprising the Dutton Island Preserve, and
wish to execute a Memorandum of Understanding to establish
respective duties, responsibilities and obligations pertaining to
building, maintaining facilities and amenities, and to establish wetland
creation areas on the City of Jacksonville's property, as described in the
attached Memorandum of Understanding for Joint Operation of Dutton
Island Preserve.
BUDGET: N/A
RECOMMENDATION: Approve the Memorandum of Understanding Between the City of
Jacksonville and the City of Atlantic Beach for the Joint Operation of
Dutton Island Preserve and authorize Mayor to sign the Agreement.
ATTACHMENTS: Memorandum of Understanding.
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REVIEWED BY CITY MANAGER: `-///. �ac.• 7G�,r
MEMORANDUM OF UNDERSTANDING
BETWEEN
CITY OF JACKSONVILLE
AND
CITY OF ATLANTIC BEACH
FOR
JOINT OPERATION OF DUTTON ISLAND PRESERVE
THIS MEMORANDUM OF UNDERSTANDING ("MOU") , by and between the CITY
OF JACKSONVILLE, a municipal corporation and political subdivision of the State of Florida
with its principal office at 117 West Duval Street, Jacksonville, Florida 32202 (hereinafter "COJ") ,
and CITY OF ATLANTIC BEACH, a municipal corporation and political subdivision of the State
of Florida with its principal office at 800 Seminole Road, Atlantic Beach , Florida 32233 (hereinafter
"COAB"), is entered into effective the day of , 2016 (the "Effective
Date") , for joint operation of the Dutton Island Preserve and Expansion Property (the "Project") .
WITNESSETH:
WHEREAS, COAB owns certain real property at 1600 Dutton Island Road West, Atlantic
Beach, FL 32233 , consisting of 31 acres, more or less, commonly referred to as Dutton Island
Preserve; and as more particularly delineated and described in Exhibit A, attached hereto and
incorporated herein by this reference (the "COAB Property"); and
WHEREAS , COJ owns certain real property at 793 Dutton Island Road West, Jacksonville,
Florida 32233 , consisting of 276 acres, more or less, commonly known as the Dutton Island
Expansion Property, which includes much of the adjacent tidal marsh and the north end of Dutton
Island Preserve as more particularly delineated and described in Exhibit B. attached hereto and
incorporated herein by this reference (the "COJ Property") ; and
WHEREAS , COAB has been allowed to build and maintain facilities and amenities on the
COJ Property without an officially recorded agreement between COJ and COAB being in place; and
WHEREAS , COAB wishes to build and maintain additional facilities and amenities and
establish wetland creation areas on the COJ Property; and
WHEREAS , COAB provides maintenance assistance on COJ Property; and
WHEREAS, COJ and COAB believe that the Project will prove beneficial to the health,
welfare, and enjoyment of citizens of, and visitors to COJ and COAB ; and
WHEREAS, it is in the mutual interests of COJ and COAB to work together on the Project
for the benefit and enjoyment of members of the general public, without discrimination as to age,
religion, disability, marital status, national or ethnic origin, gender, creed, color, or race; and
WHEREAS , COJ and COAB wish to enter into this MOU in order to provide for the Project
and to establish their respective duties, responsibilities, and obligations with respect to the Project
and the COJ Property;
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IOW, THEREFORE, for and in consideration of good and valuable consideration ,
including, but not limited to, the covenants, conditions, and terms hereof, the sufficiency and receipt
of said good and valuable consideration being herewith acknowledged by the respective parties, COJ
and COAB stipulate and agree as follows :
1 . Recitals. The recitals set forth herein are accurate, correct, true , and incorporated
herein by this reference.
2. Definitions. As used in this MOU, the words defined immediately below shall have
the meaning stated next to same. Words imparting the singular number include the plural number
and vice versa, and the male gender shall include the female gender and vice versa unless the context
clearly requires otherwise .
(a) "Governmental Requirement" means any permit, law, statute, code, rule,
regulation, ordinance, order, judgment, decree, writ, injunction , franchise, condition , certificate,
license, authorization , or other direction or requirement of any governmental and/or regulatory
national, state, or local entity with jurisdiction over COJ, COAB , and/or the COJ Property.
Governmental Requirements shall include all applicable, relevant, or appropriate Florida statutes and
Jacksonville ordinances , including without limitation any regulation found in the Florida
Administrative Code and regulations or rules now existing or in the future enacted, promulgated ,
adopted, entered, or issued, both within and outside the present contemplation of the respective
parties to this transaction .
(b) "Hazardous Materials" means any flammable explosives, radioactive
materials, hazardous materials , hazardous wastes, asbestos , radon, petroleum products, hazardous or
toxic substances, or related materials, including without limitation those defined in :
(1) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S .C. § 9601 et seq.) ;
(ii) the Hazardous Materials Transportation Act, as amended (42 U.S .C. §
1808 et seq.);
(iii) the Resource Conservation and Recovery Act of 1976, as amended (42
U.S .C. § 6901 et seq.);
(iv) regulations adopted and publications promulgated pursuant to the
foregoing;
(v) any other Governmental Requirement; and
(vi) any other material the use, release, disposal , or presence of which may
result in liability under any Governmental Requirement or common law action.
(e) "MOU" means collectively this MOU and any and all exhibits hereto,
including any amendments or addenda which may supplement, modify, or amend same .
(f} "Section" means the numerical sections of this MOU and the respective
subsections thereof. Each respective section begins with a numerical number and a capitalized
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heading of the Section which is underlined to indicate the subject matter thereof,
3 . The Project.
(a) COJ shall permit COAB to construct and/or install additional facilities and
amenities on the COJ Property provided that COAB obtains written approval of any facility or
amenity from COJ prior to construction thereof. No other use of the COJ Property is permitted
without the prior written consent of COJ, which consent may be withheld in the absolute discretion
of COJ.
(b) During the construction or installation of any facility or amenity, and with the
prior permission of COJ, COAB may restrict access of the general public to the area of the COJ
Property in which the facility or amenity is being constructed or installed.
(c) Al ! COAB projects on the COJ Property will be subject to inspection by COJ
through the Department of Public Works and the Department of Parks, Recreation and Community
Services at all reasonable times, and no work will be considered complete until accepted as complete
in writing by COJ.
(d) COAB shall be responsible for the costs of the maintenance and upkeep of all
facilities it has built or builds on the COJ Property.
(e) COAB shall be responsible for the success of the wetland creation areas
created by COAB on the COJ Property.
(f) All additions, alterations , changes, and/or improvements to the COI Property
made by COAB in carrying out the Project shall , upon completion thereof, become the property of
COJ .
(g) COAB will continue to provide maintenance assistance on COJ Property to
include daily opening/closing of entrance gate, trash removal, checking on condition of facilities and
trails and reporting signs of vandalism and damages to park facilities and resources to the COJ.
4. Indemnification,
(a) COAB shall hold harmless, indemnify, and defend COJ, including without
limitation its officers , directors, members, representatives, affiliates, agents, employees, successors,
and assigns, against any and all claims, suits, demands, judgments, losses, costs, fines , penalties,
damages, liabilities, and expenses (including all costs for investigation and defense thereof, including
but not limited to court costs, reasonable expert witness fees, and attorney' s fees) which may be
incurred by, charged to, or recovered from and against any of the following arising directly or
indirectly out of any of COAB ' s operations , work, or services performed in connection with this
MOU, including but not limited to;
(1) any and all claims for damages as a result of the injury to or death of
any person or persons, or damage to or destruction of any property which arises as a result of
any negligent act or omission on the part of COAB, its agents, affiliates, or assigns,
regardless of where the damage, injury, or death occurred, or arising out of the failure of
COAB to keep, observe, or perform any of its obligations under this MOU or in any other
document or instrument delivered by COAB pursuant to this MOU;
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(ii) any and all claims , suits, demands, judgments , losses, costs, fines,
penalties , damages, liabilities, and expenses (including all costs of cleanup, containment, or
other remediation , and all costs for investigation and defense thereof, including but not
limited to court costs, reasonable expert witness fees , and attorney' s fees) arising from or in
connection with: actions or activities of COAB , including but not limited to its agents ,
affiliates , or assigns ("Parties") that result in a violation of any environmental law, ordinance,
rule, or regulation or that leads to an environmental claim or citation or to damages due to
COAB ' s or other Parties ' activities ; any environmental, health , and safety liabilities arising
out of or relating to the operation or other activities performed in connection with this MOU
by COAB or any Party at any time on or prior to the Effective Date; or any bodily injury
(including illness, disability, and death, regardless of when any such bodily injury occurred,
was incurred, or manifested itself) , personal injury, property damage (including trespass ,
nuisance, wrongful eviction , and deprivation of the use of real property), or other damage of
or to any person in any way arising from or allegedly arising from any hazardous activity
conducted by COAB or any Party. Any remedial action and any proceeding relating to an
environmental claim shall be the responsibility of COAB ;
(iii) any and all claims, suits, demands, judgments, losses, costs, fines ,
penalties, damages, liabilities, and expenses (including all costs for investigation and defense
thereof, including but not limited to court costs, reasonable expert witness fees, and
attorney' s fees) arising from or based upon the violation of any federal, state, or municipal
laws , statutes, resolutions, or regulations by COAB or those under its control ;
(iv) any and all claims, suits, demands, judgments, losses, costs , fines,
penalties , damages, liabilities, and expenses (including all costs for investigation and defense
thereof, including but not limited to court costs, reasonable expert witness fees, and
attorney' s fees) which may be incurred by, charged to, or recovered from any of the
foregoing, arising directly or indirectly out of: any breach of any representation or warranty
made by COAB in connection with this MOU or in any certificate, document, writing, or
other instrument delivered by COAB pursuant to this MOU ; or, any breach of any covenant
or obligation of COAB set forth in this MOU or any other certificate, document, writing, or
other instrument delivered by COAB pursuant to this MOU;
(b) The indemnifications contained in Subsection 4(a) , above, are separate and
apart from , and are in no way limited by, any insurance provided pursuant to this MOU or otherwise.
This Section 4 relating to indemnification shall survive the term of this MOU and any holdover
and/or extension thereto, whether such term expires naturally by the passage of time or is terminated
earlier pursuant to the provisions of this MOU.
(c) The indemnifications given by COAB are subject to the provisions and
limitations of Section 768.28 , Florida Statutes, and shall not be construed as , and are not, a further
waiver of COAB ' s sovereign immunity beyond the limited legislative waiver thereof in Section
768 . 28, Florida Statutes. .
5. Title to Property. Title to the COJ Property shall remain vested with COJ, subject to
the covenants, conditions , and terms of this MOU, and COAB shall have no interest in the title to the
COJ Property. Any improvements made to the COJ Property shall be vested with COJ , which shall
have the title thereto, subject to the covenants, conditions, and terms of this MOU. COJ shall always
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remain vested with title to the COJ Property and in control thereof to ensure that neither COAB nor
any other entity shall have the authority or right to violate Governmental Requirements affecting the
COJ Property and the utilization thereof.
6 . Hazardous Materials.
(a) COAB shall not knowingly use, handle, store, or permit the use, handling, or
storage of Hazardous Materials on or in the COJ Property. COAB shall not dispose of or permit or
allow the disposal, leakage, spillage, or discharge on the COJ Property of any Hamrdous Material . If
any Hazardous Material should be used, handled, or stored (except in accordance with this section)
or if any Hazardous Material is disposed of or permitted to leak, spill , or discharge on the COJ
Property by accident or otherwise, COAB shall provide immediate written notice thereof to COJ and
shall immediately commence and diligently pursue the removal of any such Hazardous Material .
COAB shall remediate, clean, and restore the Hazardous Material area in accordance with all
applicable Governmental Requirements and pay all fines, fees , assessments, and penalties arising
therefrom. COAB shall furnish COJ periodically at COD' s request certification that COAB is in
compliance with the provisions of this section .
(b) COAB shall provide written notice to COJ within three (3) days of:
(i) any change in COAB ' s utilization and operation of the COJ Property
involving the use, handling, or storage of Hazardous Materials;
(ii) receipt of any warning, notice, notice of violation , lawsuit, or the like
from any governmental agency or regulatory authority relating to environmental compliance;
(iii) receipt of any complaint, claim, or lawsuit filed by any third party
relating to environmental compliance ; or
(iv) release, spillage, leakage, or disposal of any Hazardous Material on the
COJ Property.
(c) If COAB shall fail to comply with any of the provisions of this section, COJ
shall have the right , but shall not be obligated, to enter onto the COJ Property and take such steps
and incur such expenses as COJ shall deem necessary to correct COAB ' s default, including, without
limiting the generality of the foregoing, the making of all replacements or repairs for which COAB is
responsible, and COAB shall reimburse COJ on demand for any expense incurred by COJ as a result
thereof.
(d) "Hazardous Materials" shall have the meaning set forth in Section 2(b) above.
7 . Default.
(a) Each of the following events shall be a default hereunder by COJ or COAB , as
the case may be, and shall constitute a breach of this MOU:
(i) if a party shall fail to perform any of the covenants, conditions, and
terms of this MOU on such party's part to be performed and such non-performance shall
continue for a period of thirty (30) days after written notice thereof from the other party;
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(ii) if a party shall fail to act in good faith to commence and undertake
performance within such thirty (30) day period to cure a non-performance which cannot be
cured within the initial thirty (30) day period and such party shall designate in writing the
reasonable time period to cure such non-performance and its intent to do so ; or
(iii) a party, having commenced to undertake such performance within the
initial thirty (30) day period, shall fail to diligently proceed therewith to completion within
the designated reasonable time period to cure such non-performance.
(b) If an event of default shall occur and be continuing for thirty (30) days, then
the non-defaulting party shall have the right to terminate and cancel this MOU by giving to the
defaulting party not less than thirty (30) days' written notice of such termination and cancellation,
and upon the expiration of the time fixed in such notice, this MOU shall terminate and the parties
shall be released from all obligations under this MOU which do not specifically survive its
termination. The foregoing remedy shall not be the exclusive remedy for either party to this MOU .
8. Licenses and Permits. COAB will be responsible for obtaining, in the name of COJ,
COAB , or otherwise, all licenses, permits , inspections, and other approvals necessary for operation
of the Project . COJ shall cooperate with COAB in obtaining all such licenses , permits, inspections,
and other approvals, including but not limited to supplying information and executing applications,
forms , or other documents necessary for same.
9. Force Majeure. If COJ or COAB shall be delayed in, hindered in , or prevented from
the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability
to procure materials , failure of power, restrictive governmental laws , regulations , or actions , war,
riots, insurrection, the act, failure to act, or default of the other party, or other reason beyond such
party's reasonable control (excluding the unavailability of funds or financing) , then the performance
of such act shall be excused for the period of the delay and the period for the performance of any
such act as required herein shall be extended for a period equivalent to the period of such delay.
10. Miscellaneous :
(a) Notices . Any and all notices which are permitted or required in this MOU
shall be in writing and shall be duly delivered and given when personally served or mailed to the
person at the address designated below . If notice is mailed , the same shall be mailed, postage
prepaid, in the United States mail by certified or registered mail - return receipt requested. Notice
shall be deemed given on the date of personal delivery or mailing and receipt shall be deemed to
have occurred on the date of receipt. In the case of receipt of certified or registered mail , the date of
receipt shall be evidenced by return receipt documentation . Failure to accept certified or registered
mail shall be deemed a receipt thereof within ten ( 10) days after the first notice of delivery of the
certified or registered mail. Any entity may change its address as designated herein by giving notice
thereof as provided herein.
If to COJ: Office of the Director
Department of Parks, Recreation and Community Services
214 North Hogan Street, Fourth Floor
Jacksonville, Florida 32202
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If to COAB : _Director of Public Works
_ 1200 Sandpiper Lane
_Atlantic Beach, FL 32233
or such other address either party from time to time may specify in writing to the other.
(b) Legal Representation. Each respective party to this MOU has been
represented by counsel or has knowingly and willfully refused representation by counsel in the
negotiation of this MOU; accordingly, no provision of this MOU shall be construed against a
respective party due to the fact that it or its counsel drafted , dictated, or modified this MOU or any
covenant, condition, or term hereof.
(c) Further Instruments. Each respective party hereto shall from time to time
execute and deliver such further instruments as any other party or parties or its counsel may
reasonably request to effectuate the intent of this MOU.
(d) Severability of Invalid Provision. If any one or more of the agreements ,
provisions , covenants, conditions, and terms of the MOU shall be contrary to any express provision
of law or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then such agreements, provisions,
covenants, conditions, or terms shall be null and void with no further force or effect and shall be
deemed separable from the remaining agreements, provisions, covenants, conditions , and terms of
the MOU and shall in no way affect the validity of any of the other provisions hereof.
(e) No Personal Liability. No representation, statement, covenant, warranty,
stipulation, obligation, or agreement contained herein shall be deemed to be a representation,
statement, covenant, warranty, stipulation, obligation, or agreement of any member, officer,
employee, or agent of COJ or COAB in his or her individual capacity, and none of the foregoing
persons shall be liable personally or be subject to any personal liability or accountability by reason of
the execution or delivery hereof.
(f) Third Party Beneficiaries. Nothing herein express or implied is intended or
shall be construed to confer upon any entity other than COJ and COAB any right, remedy, or claim,
equitable or legal, under and by reason of this MOU or any provision hereof, all provisions,
conditions, and terms hereof being intended to be and being for the exclusive and sole benefit of COJ
and COAB .
(g) Survival of Representations and Warranties, The respective indemnifications,
representations, and warranties of the respective parties to this MOU shall survive the expiration or
termination of the MOU and remain in effect.
(h) Governing Law. This MOU shall be governed by and construed in accordance
with the laws of the State of Florida and the ordinances of the City of Jacksonville. Wherever
possible, each provision, condition , and term of this MOU shall be interpreted in such manner as to
be effective and valid under applicable law; but, if any provision, condition, or term of this MOU, or
any documentation executed and delivered hereto, shall be prohibited by or invalid under such
applicable law, then such provision , condition, or term shall be ineffective to the extent of such
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prohibition or invalidity without invalidating the remainder of such provision , condition , or term or
the remaining provisions , conditions, and terms of this MOU or any documentation executed and
delivered pursuant hereto .
( i ) Section Headings . The section headings inserted in this MOU are for
convenience only and are not intended to and shall not be construed to Iimit, enlarge, or affect the
scope or intent of this MOU or the meaning of any provision , condition, or term hereof.
(j) Counterparts. This MOU may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
document.
(k) Entire Agreement. This MOU contains the entire agreement between the
respective parties hereto and supersedes any and all prior agreements and understandings between
the respective parties hereto relating to the subject matter hereof. No statement or representation of
the respective parties hereto, their agents , or their employees made outside of this MOU and not
contained herein shall form any part hereof or bind any respective party hereto. This MOU shall not
be supplemented, amended, or modified except by written instrument signed by the respective parties
hereto.
(I) Attorney' s Fees and Costs. In any litigation arising out of or pertaining to this
MOU, the prevailing party shall be entitled to an award of its attorney' s fees and costs, whether
incurred before , during, or after trial , or upon any appellate level .
(m) Time. Time is of the essence of this MOU. When any time period specified
herein falls upon a Saturday, Sunday or legal holiday, the time period shall be extended to 5 :00 p.m.
on the next ensuing business day.
(n) Waiver of Defaults. The waiver by either party of any breach of this MOU by
the other party shall not be construed as a waiver of any subsequent breach of any duty or covenant
imposed by this MOU .
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TN WITNESS WHEREOF, the respective parties hereto have executed this MOU for
the purposes expressed herein effective the day and year first above written .
ATTEST: CITY OF JACKSONVILLE
By:
James R. McCain , Jr. Lenny Curry, Mayor
Corporation Secretary
ATTEST: CITY OF ATLANTIC BEACH
By:
Print Name: Print Name: Mitchell E. Reeves
Title: _Mayor
Print Name :
Form Approved :
By:
Assistant General Counsel
G:Gov't OpcmtionsU MCainU'REC1 MOU1COAB .DuttonislandExpansion. 112515.doe
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EXHIBIT A
Legal Description of Dutton Island Preserve
10
Book 10824 Page 2114
• �6C� QQ3
' PREPARED BY & RETURN TO : �pC�� i�QQ�3462565
ALAN C . JENSEN, ESQUIRE 1 vst
P . O . Box 50957 Pa es: 2114 — 2137
Jacksonville Beach , FL 32240- 0457 Fred a 12/20/2002 OSIOE:03 OH
MN FILER
GC4RJ� COUNTY
COURT
MOM I 12.90
DEED MC SFtW $ 0.70
rnRRFrtn pi PERSONAL REPRESENTATIVE ' S nErn
THIS DEED of conveyance is made this S M day of ri tai
2002 , by Ceylon Rentz , Personal Representative of the Estate of
Walter E . Dutton, deceased, whose address is 9471 Baymeadows Road,
Suite 203 , Jacksonville , Florida 32256 , hereinafter called the
Grantor, to City of Atlantic Beach , Florida municipal corporation,
FEIN 59- 6000267 and tax exempt #26- 02- 107391 -54C ( exp . 6 / 10 / 02 ) ,
and to the City of Jacksonville , a Florida municipal corporation ,
FEIN 59- 6000344 and tax exempt # 26- 08 - 107377-54C ( exp . 6 / 10/ 02 ) ,
whose mailing address is : 117 West Duval Street , Jacksonville ,
Florida 32202 , hereinafter called the Grantees .
WITNESSETN :
REAS , Walter E . Dutton is now deceased and the Estate of
said decedent is being administered in the Circuit Court of Duval
County, Florida , Probate No . 96- 01271 -CP ; and
WHEREAS , the Grantor is authorized and empowered by law to
convey the property hereinafter described ;
NOW THEREFORE , in consideration of the premises and the sum of
Ten Dollars ( $ 10 . 00 ) and other good and valuable considerations ,
the receipt whereof are hereby acknowledged, the Grantor does
hereby convey to the Grantees that certain real property situate,
lying and being in Duval County, Florida , described as
See Exhibit A attached
TOGETHER WITH all riparian rights thereunto belonging or in
anywise appertaining .
By acceptance of this deed, Grantees herein hereby agree that
the use of the property described herein shall be subject to the
covenants and restrictions as set forth in the Grant Award
Agreement attached hereto as Exhibit B . These covenants and
restrictions shall run with the title to the property herein
described . If any of the covenants and restrictions of the Grant
Award Agreement are violated by Grantees or by some third party
with the knowledge of Grantees , fee simple title to the property
described herein shall be conveyed to the Board of Trustees of the
Internal Improvement Trust Fund of the State of Florida in 'Q
accordance with the Grant Award Agreement without further notice to
Grantees , their successors and assigns , and Grantees , their
successors and assigns shall forfeit all right , title and interest
in and to the property described herein .
' 4 Book 10824 Page Bills
This conveyance is subject to easements , restrictions ,
limitations and conditions of record if any now exist , but any such
interests that may have been terminated are not hereby reimposed .
Grantor does hereby covenant that Grantor is duly qualified
and acting Personal Representative of the Estate of said decedent
as aforesaid , with lawful authority to execute this instrument ; and
that Grantor will defend said lands against the lawful claims of
any persons whomsoever claiming or holding by, through or under
Grantor .
THIS DEED IS BEING GIVEN SOLELY FOR THE PURPOSE OF CORRECTING THE
LEGAL DESCRIPTION IN THAT CERTAIN DEED RECORDED IN O . R. BOOK 8894 ,
PAGE 1188 , CURRENT PUBLIC RECORDS OF DUVAL COUNTY , FLORIDA .
IN WITNESS WHEREOF, Grantor has executed this deed under seal
the day and year first above written .
SI cD AND EALED IN OUR PRESENCE ;
rAdhoi CSILSE
Wi re easpr • „ e r a'1 r: I i • it RENTZ , as Persona'
R • sentative of the Estate-
q IOWA
er E . Dutton, deceased de
�f�.
. . . �
W mess printrame ierairitn , ,
STATE OF FLORIDA
COUNTY OF DUVAL
The foregoin • ,hptrument was acknowledged before me this
At... day of 4I, I 2002 , by Ceylon Rentz , as Personal
Representative of the Estate of Walter E . Dutton , deceased, who
is personally known to me or who have produced as
identification and who did take an oath .
NOT , • Y PUBLIC :
Ink / WW �
Pr nted name :
` " „ , • a . - .
State and coun y aforesa . • ( Sea . )
My Commission Expires : (egg/ of
(
1 a !"/%
-.4 Conumitakm► Ra CC 9:5153
A . My Comnmissson Explma et291 1 :
Book 10824 Page 2118,
i
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DUTTON ISLAND LEGAL DESCRIPTION
A PART OF UNSURVEYED SECTION 7, TOGETHER WITH A PART OF
SECTION 40, CLAIM OF BARTOLOME DE CASTRO Y FERRER, ALL LYING
a.
IN TOWNSHIP 2 SOUTH, RANGE 29 EAST, DUVAL COUNTY, FLORIDA,
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
tor
COMMENCE AT TEE NORTHEAST CORNER OF SECTION 18, TOWNSHIP 2
ea
SOUTH, RANGE 29 EAST, OF SAID COUNTY; THENCE SOUTH 00° 23' 10"
EAST, ALONG THE EASTERLY LINE OF SAID SECTION 18, A DISTANCE
OF I0.00 FEET TO AN INTERSECTION WITH. THE CENTER LINE OF
DUTTON DRIVE (A 66.00 FOOT RIGHT OF WAY AS NOW ESTABLISHED);
THENCE NORTH 89° 49' 10"WEST, ALONG THE CENTERLINE OF SAID
MUTTON DRIVE, A DISTANCE OF 1298. 03 FEET TO A POINT OF
CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY, HAVING A
RADIUS OF 573.69 FEET, AND A CENTRAL ANGLE OF 44° 05' 00"; THENCE
ALONG AND AROUND THE ARC OF SAID CURVE, CONTINUING ALONG
SAID CENTER LINE, A DISTANCE OF 441.40 FEET TO TEE POINT OF
TANGENCY (SAID ARC SUBTENDED BY A CHORD BEARING AND
DISTANCE OF, SOUTH 68° 08' 20" WEST, 430.59 FEED; THENCE SOUTH
46° 05' 50" WEST, CONTINUING ALONG SAID CENTER LINE, A DISTANCE
OF 675.29 FEET TO A POINT OF CURVATURE OF A CURVE CONCAVE
NORTHWESTERLY, HAVING A RADIUS OF 573.69 FEET, AND A CENTRAL
ANGLE OF 49° 16' 20"; THENCE ALONG AND AROUND THE ARC OF SAID
CURVE, CONTINUING ALONG SAW CENTER LINE, A DISTANCE OF 493.35
FEET TO THE POINT OF TANGENCY (SAID ARC SUBTENDED BY A
CHORD BEARING AND DISTANCE OF, SOUTH 70° 44' 00" WEST, 478.29
FEET); THENCE NORTH 84° 37' 50" WEST, CONTINUING ALONG SAID
Cr
CENTER LINE OF DUTTON DRIVE, AND THE WESTERLY
PROLONGATION THEREOF, A DISTANCE OF 398 FEET MORE OR LESS,TO
AN INTERSECTION WITH THE 2.25 FOOT ELEVATION CONTOUR LINE OF
DUTTON ISLAND, SAID CONTOUR LINE BEING THE MEAN HIGH WATER
LINE AS ESTABLISHED BY THE DEPARTMENT OF NATURAL
RESOURCES, STATE OF FLORIDA, ALSO BEING THE POINT OF
BEGIINNING ;
FROM THE ABOVE DESCRIBED POINT OF BEGINNING, RUN THENCE
NORTHERLY, WESTERLY, SOUTHERLY, EASTERLY, AND 0.
NORTHEASTERLY, FOLLOWING ALONG THE AFOREMENTIONED 2.25
FOOT CONTOUR LINE AND SAID MEAN HIGH WATER LINE, A DISTANCE
OF 7,979 FEET MORE OR LESS, TO THE POINT OF BEGINNING.
CONTAINING 37. 77 ACRES, MORE OR LESS.
tr-
EXHIBIT A
•
. ,
• • Book 10824 Page 2117
This document prepared by ;
Ann J . Wild
Florida Communities Trust
Department . of community Affairs
ar 2555 Shumard Oak Blvd .
Tallahassee , FL, 32399
FLORIDA COMMUNITIES TRUST
P56 AWARDa 95 - 058 -P56
ACT Contract. Q $ - {;7 _ 3- 1-55-13to- i 1- oet
GRANT AWARD AGREEMENT I _,
THIS AGREEMENT is entered into this ay of � �,rr. ) , 199 ,
by and between the FLORIDA COMMENT IES TRUST ( "PC " ) , a
nonregulatory, agency within the State of Florida Department of
Community Affairs , and CITY OF ATLANTIC REACH and CITY OF
JACKSONVILLE ( FCT Recipient ) , a local government of the state of
Florida ( " FCT Recipient" ) , in order to impose terms , conditions ,
and reatrictiona on the use of the proceeds of certain bonds ,
hereinafter described , • and the lands acquired with such proceeds
and as described in Exhibit "A" attached hereto and made a part
hereof ( "Project Site" ) , as shall be necessary to ensure compliance
with applicable Florida Law and federal income tax law and to
otherwise implement provisions of Chapters 253 , 259 , and 360 ,
Florida Statutes .
WHEREAS , Part III Chapter 380 , Florida Statutes , the Florida
communities Trust Act , creates a nonregulatory agency within the
Department of Community Affairs , which will assist local
governments in bringing into compliance and implementing the
conservation , recreation and open space , and coastal elements of
their comprehensive plans and in otherwise conserving natural
resources and resolving land use conflicts by providing financial
assistance to local governments to carry out projects and
activities authorized by the Florida Communities Trust Act ;
WHEREAS , Section 1 of the Florida Preservation 2000 - Act
provides for the distribution of ten percent ( 10 % ) of the net
Preservation 2000 Revenue Bond proceeds to the Department of
Community Affairs to provide land acquisition grants and loans to
local governments through the FCT ;
WHEREAS , the Governor and Cabinet authorized the sale and
issuance of State of Florida Department of Natural Resources
Preservation 2000 Revenue Bonds ( " Sonde " ) ;
GAA\95-058 -P56
08 -28 - 1997 1
r I
I
Exhibit am, (1.01 . )
Rook 10824 Page 211
•
WHEREAS , the Bonds were issued as tax-exempt bands , meaning
4.
that the interest on the Bonds is excluded from the gross income of
Bondholders for federal income tax purposes ;
WHEREAS , Rule 9K-4 . 020 ( 2 ) ( f) , F . R . C . , authorizes FCT to impose
conditions for funding on those PC? applicants whose projects have
re
been selected for funding in accordance with Rule Chapter 9K- 4 ,
e Face "
SC
ra
WHEREAS , the FCT has approved the terms under which the
Project Site is acquired and the deed whereby the FCT Recipient
acquires title to the Project Site Shall contain such covenants and
4. restrictions as are sufficient to ensure that the use of the
Project Site at all times complies with Section 375 . 051 , Florida
Statutes and Section 9 , Article XII of the State Constitution and
shall contain clauses providing for the conveyance of title to the
Project site to the Board of Trustees of the Internal Improvement
Trust Fund upon the failure of the FCT Recipient to use the Project
Site acquired thereby for such purposes ; and
WHEREAS , such covenants and restrictions shall be imposed by
an agreement which shall describe with particularity the real
property which is subject to the agreement and shall be recorded in
the county in which the real property is located ; and
WHEREAS , the purpose of this Agreement is to set forth the
covenants and restrictions that are iepossd on the Project Site
subsequent to its acquisition with the FCT Preservation 2000 Bond .
award .
NOW THEREFORE , in consideration of the mutual covenants and
undertakings set forth herein , and other good and valuable
consideration , the receipt and sufficiency of which is hereby
acknowledged , FCT and FCT Recipient do hereby contract and agree as
follows :
GENERAL CONOyyypON
S .
1 . Upon execution and delivery by the parties hereto , the
FCT Recipient shall cause this Agreement to he recorded and filed
in the official public records of Duval County , Florida , as Exhibit
" B " of the warranty deed vesting fee simple title to the Project
Site in the FCT Recipient , and in such manner and in such other
places as FCT may reasonably request , and shall pay all fees and
charges incurred in connection therewith .
I
2 . The FCT Recipient and FCT agree that the State of Florida
Department of Environmental Protection will forward this Agreement
to Department of Environmental Protection Bond Counsel for review .
In the event Bond Counsel opines that an amendment is required to I
this Agreement so that the tax exempt status of the Preservation
GAA\ 95-058 -P56
08 - 28- 1997 2
3
Exhibit 13 i 2 2,
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2000 Bonds is not jeopardized , FCT and FCT Recipient shall amend
the Agreement accordingly .
3 . This Agreement may be amended at any time . Any amendment
must be set forth in a written instrument and agreed to by both the
FCT Recipient and FCT .
d . This Agreement and the covenants and restrictions
contained herein shall run with the Property herein described and
shall bind , and the benefits shall inure to , respectively , the FCT
and the FCT Recipient and their respective successors and assigns .
5 . This Agrat <•. ent shall ba governed by and construed in
accordance with the laws of the State of Florida , with respect to
both substantive rights and with respect to procedures and
remedies .
6 . Any notice required to be given hereunder shall be given
by personal delivery , by registered mail or by registered expedited
service at the addresses specified below or at such other addresses
au may be °pacified in writing by the parties hereto , and any such
notice shall be deemed received on the data of delivery if by
K personal delivery or expedited delivery service , or upon actual
receipt if sant by registered mail. .
Far : Florida Communities Trust
Department of Community Affairs
2555 Shemard Oak Blvd .
Tallahassee , FL 32399e2100
ATTN : Executive Director
FCT Recipient : City of Atlantic Beach
800 Seeinole $ osd . Atlantic Beach , FL 32223
City of Jagkaonv , lle
117 West Duval Street . Jacksonville , FL 32202
ATTN : Vicki Reynaldo
7 . If any provision of the Agreement shall be invalid ,
illegal or unenforceable , the validity , legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired .
II .
PROJECT SITE g1QI d°rS tamp BY CHAPTER 259 , CfAr� w
37 $ , C '-°° R 300 , PART III , rrobnaris STATCTSS .
1 . re any essential term or condition of this grant
agreement is violated by the FCT Recipient or by some third party
with the knowledge of the FCT Recipient and the FCT Recipient does
not correct the violation within 30 days of notice of the
violation , fee simple title to all interest in the Project Site
GAA\95 -•058 -P56
O8e28 - 1997 3
Extort
, ,
Book 10824 Page 2120
shall be conveyed to the Board of Trustees of the Internal
Improvement Trust Fund . The FCC' shall treat such property in
accordencetwitb Section 380 . 508 ( 4 ) ( e ) , Florida Statutes .
2 . Any transfer of the ' Project Site shall be subject to the
approval of FCT and FCT shall enter into a new agreement with the
transferee , containing such covenants , clauses , or other
restrictions as are sufficient to protect the interest of the
people of Florida .
3 . The interest , if any , acquired by the FCT Recipient in
the Project Site will not serve an security for any debt of the FCT
Recipient unless FCT approves the transaction .
4 . If the existence of the FCT Recipient terminates for any
reason , title to all interest in real property it has acquired with
the FCT award shall be conveyed to the Board of Trustees of the
Internal Improvement Trust Fund , unless FCT negotiates an agreement
with another local government or nonprofit organization which
agrees to accept title to all interest in and to manage the Project
Site .
5 , In the event that the Project site is damaged or
destroyed or title to the Project Site , or any part thereof , is
taken by any governmental body through the exercise or the threat
of the exercise of the power of eminent domain , the FCT Recipient
shall deposit with the FCT any insurance proceeds or any
condemnation award, and shall promptly commence to rebuild ,
replace , repair or restore the Project Site in such manner as is
consistent with the Agreement . The pct shall make any such
insurance proceeds or condemnation award moneys available to
provide funds for such restoration work. In the event that the FCT
Recipient fails to commence or to complete the rebuilding , repair ,
replacement or restoration of the Project Site after notice from
the PCT , the FCT shall have the right , in addition to any other
remedies at law or in equity , to repair , restore , rebuild or
replace the Project site so as to prevent the occurrence of a
default hereunder .
Notwithstanding any of the foregoing , FCT will have the right
to seek specific performance of any of the covenants and
restrictions of this Agreement concerning the construction and
operation of the Project Site .
•
1=I . MINOT UTE OBLIGATIONS MOB= BY Ft;T ON TEE PCT B.BoiPismT .
1 . The Project Site shall be managed only for the
conservation , protection and enhancement of natural and historical
resources and for pensive , natural resource -based public outdoor
recreation which is compatible with the conservation , protection
and enhancement of the Project Site , along with other related uses
GAA\95--058 --P56
08 -28 -1997 4
a
Exhibit 15 ( if of _ )
• Rook 10824 Page 2121
necessary for the accomplishment of this purpose . The proposed
uses for the Project Site are specifically designated in the
Project Man as approved by ?CT .
2 . The FCT Recipient shall prepare and submit to FCT an
annual report as required by Rule 9X- 4 . 013 , F . A . C .
3 . The FCT Recipient shall ensure that the future land use
designation assigned to the Project Site is for a category
dedicated to open space , conservation , or outdoor recreation uses
as appropriate . If an amendment to the PCT Recipient ' s
comprehensive plan is required to comply with this paragraph , the
amendment shall be proposed at the next comprehensive plan
amendment cycle available to the PCB' Recipient ,
4 . FCT Recipient shall ure , and provide evidence thereof
to FCT , that all activities under tide Agreement comply with all
applicable local , state , regional and federal laws and regulations ,
including zoning ordinance ® and the adopted and approved
comprehensive plan for the jurisdiction as applicable . evidence
shall be provided to FCT that all required licenses and permits
have been obtained prior to the commencement of any construction .
5 . The FCT Recipient shall , through its agents and
employees , prevent the unauthorized use of the Project Site or any
use thereof not in conformity with the FCT approved project plan .
6 . FCT staff or its duly authorized representatives shall
- have the right at any time to inspect the Project Site and the
operations of the FCT Recipient at the Project Site ,
7 . All buildings , structures , improvements , and signs shall
require the prior written approval of FCT as to purpose . Further,
tree removal , other than non-native species , and/ or major land
alterations shall require the written approval of PCT . The
approvals required from FCT shall not be unreasonably with - held by
FCT upon sufficient demonstration that the proposed structures ,
buildings , improvements , signs , vegetation removal or land
alterations will not adversely impact the natural resources of the
Project Site . The approval by FCT of the FCT Recipient ' s
management plan addressing the items mentioned herein shall be
considered written approval from FCT .
8 . If archaeological and historic sites are located on the
Project site , the FCT Recipient shall comply with Chapter 267 ,
Florida Statutes . The collection of artifacts from the Project
Site or the disturbance of archaeological and historic sites on the
Project Site will be prohibited unless prior written authorization
has been obtained from the Department of State , Division of
Historical Resources .
G \95-058 -P56
08 - 28 - 1997 5
fxhibii cb t o12-. ) )
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in _ _ -- i .
Book 10624 Page 2122
',:'',.'''';''
9 . The FCT Recipient shall ensure that the Project Site is
identified as being publicly owned and operated as a passive ,
natural ressourca-based public outdoor recreational site in all
signet literature and advertising regarding the Project site . The
FCT Recipient shall erect a aign ( s ) identifying the Project Site as
being open to tha public and as having been purchased with funds
from PCT and rc'1' Recipient .
8 OBLIGATIONS IXCV; + DI PCT REC/PItee SUET or SOS
e.
PROCEEDS BEING UTILIZED TO ? ► e a Rl E .. ag PROJECT SITE .
1 . If the Project Site is to remain subject , after its
acquisition by the State and the FCT Recipient , to any of the below
• listed activities or interests , the FCT Recipient shall provide at
leant 60 days written notice of any such activity or interest to
e. FCT prior to the activity taking place , and shall provide to FCT
such information with respect thereto as PC°I reasonably requests in
order to evaluate the legal and tax con- sequences of such activity
or interest :
e.
a . any lease of any interest in the Project Site to a
IP non-governmental person or organization ;
b . the operation of any concession on the Project Site
to a non-governmental person or organization ;
c . any sales contract or option to buy things attached
to the Project Site to be severed from the Project Site , with a
non--governmental person or organization ;
de any use of the Project Site by non-governmental
persons other than in such persons capacity as a member of the
general public ;
m.
e . a management contract of the Project Site with a
non -governmental person or organization ; and
e.
f . such other activity or interest as may be specified
from time to time in writing by FCT to the FCT Recipient .
2 . FCT Recipient agrees and acknowledges that the following
transaction , events , and circumstances may not be permitted on the
Project Site as they may have negative legal and tax consequences
under Florida law and federal income tax law :
e.
a . a sale of the Project Site or a lease of the Project
Site to a non-governmental person or organization ;
b . the operation of a concession on the Project Site by
a non-governmental person or organization ;
G \95 -056 ®PS6
08 -28 ®1997 6
1
Exhibit IL l ( ft of, °21 )
44 W ' Book 10824 Page 2123
co 4. a sale of things attached to the Project Site to be
severed from the Project Site to a non-governmental person or
organization ;
do any change in the character or use of the Project
Site from that use expected at the date of the issuance of any
series of bonds from which the disbursenant is to be made ;
7.
0 . any use of the Project Site by non-governmental
persons other than in such parson ' s capacity as a member of the
general public ;
T . a management contract of the Project Site with a
nonegovernmental p® on or organization ; and
g . such other activity or interest as may be specified
from time to time in writing by FCT to the FCT Recipient .
b. DELEGATIONS AND CONTRACTUAL ARRANGEMENTS BETWEEN THE FCT RECIPIENT
AND, OTHER GdVERN ENTAL BODIES , NOT FOR PROFIT ENTITIES , OR NON
GOVERNMENTAL PERSONS FOR USE OR MANAGEMENT OF THE PROJECT SITE WILL
ot
IN NO RAY num THE FCT RECIPIENT OF THE RESPONSIBILITY TO ENSURE
THAT THE CONDITIONS IMPOSED IN ON THE PROJECT SITE AS A RESULT
OF UTILIZING BOND PROCEEDS TO ACQUIRE THE PR SITE ARE FULLY
COMPLIED WITH BY THE CONTRACTING PARTY .
v . coNDITIONG . PARTECULAR TO T' e PROJECT SITS AS A MOLT
of ` 't* PCT APPROVED . e: 1 G :y 4, a ~: n ,
1 . The PCT Recipient shall provide outdoor recreational
facilities including nature trails , interpretive signage ,
observation areas , restrooms and limited parking on the Project
Site . The facilities shall be developed in a manner that allows
the general public reasonable access for observation and
appreciation of the significant natural resources on the Project
Site without causing harm to than resources .
2 . The timing and extent of a vegetative communities and
plant species survey of the Project Site shall be specified in the
management plan . The FCT Recipient shall detail how the survey
shall be used during development of the site to insure the
protection , restoration , and preservation of the natural resources
on the Project Site .
3 . ' The coastal hammock , pine flatwoods and saltmarsh
communities that exist on the Project Site shall be preserved and
appropriately managed to ensure the long-term viability of these
vegetative communities .
4 . The Project Site shall be managed in a manner that
optimizes habitat for listed wildlife species that utilize or could
G \95- 058 -P56
08 -29 -1997 7
Exhibit , ., t 1 °f ib
1
•
•
Book 10824 Page 2124
potentially utilize the Project Site , including the manatee ,
bobcat , muskrat , river otter and listed wading birds . The Fa
Recipient 'shall coordinate with the Game and Freshwater Fish
Commission and Department of Environmental Protection ' s Office of
Protected Species Management on the management of the Project on
the management of the Project Site for the protection of listed
species and listed species habitat . The FCT Recipient shall also
conduct periodic surveys of listed species using the Project site
and develop informational signs relating to the protection of
listed animal species and their habitat .
5 . The PcT Recipient shall ensure that the Project Site and
listed animal species and their habitat are sufficiently buffered
from the adverse impacts of adjacent land uses . .
6 . The FCT Recipient shall restore 18 acme of the Project
Site by removing exotic vegetation , replanting trail roads with
native vegetative species , restoring the aquatic habitat of the
freshwater lake and adding culverts to the dike road to restore the
hydrology of the saltmarh . .
7 . The PCT Recipient shall coordinate with the St . Johns
River Water Management District in the development of a hydrologic
restoration plan for the Project Site ,
8 . A vegetation analysis of the Project site shall be
performed to determine which areas of the Project Site need a
prescribed burning regime implemented to maintain natural fire-
dependent vegetative communities . The FCT Recipient shall
coordinate with Division of Forestry and Game and fresh Water Fish
Commission on the development of a prescribed burn plan for the
Project Site .
9 • The FCT Recipient shall remove all trash and debris from
the Project Site .
10 . Prior to the commencement of any proposed development
activities , measures will be taken to determine the presence of any
archaeological sites . All planned activities involving known
archaeological sites or potential site areas shall be closely
coordinated with the Department of State , Division of Historic
Resources , in order to prevent the disturbance of significant
sites .
11 ., Access to the Project Site by pedestrians , bicyclists and
persons on non-motorized vehicles shall be promoted except in those
areas where resource protection considerations warrant limiting
access .
GAA\ 95- 058 -P56
0 $ - 28 -1997 8
Exhibit sue_ ( t of 2" � ) •